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Victory goes to those with homicidal instinct to succeed... the murderous mania to excel...
Dean W. Riano
SYLLABUS FOR 2011 BAR EXAMINATIONS
REMEDIAL LAW
I. General Principles
A. Concept of Remedial Law
B. Substantive Law as Distinguished from Remedial
Law
C. Rule-making Power of the Supreme Court
1. Limitations on the rule-making power of
the Supreme Court
2. Power of the Supreme Court to amend and
suspend procedural rules
D. Nature of Philippine Courts
1. Meaning of a court
2. Court as distinguished from a judge
3. Classifcation of Philippine courts
4. Courts of original and appellate
jurisdiction
5. Courts of general and special jurisdiction
6. Constitutional and statutory courts
7. Courts of law and equity
8. Principle of judicial hierarchy
9. Doctrine of non-interference or doctrine of
judicial stability
II. Jurisdiction
A. Jurisdiction over the parties
1. How jurisdiction over the plaintif is
acquired
2. How jurisdiction over the defendant is
acquired
B. Jurisdiction over the subject matter
1. Meaning of jurisdiction over the subject
matter
2. Jurisdiction versus the exercise of
jurisdiction
3. Error of jurisdiction as distinguished from
error of judgment
4. How jurisdiction is conferred and
determined
5. Doctrine of primary jurisdiction
6. Doctrine of adherence of jurisdiction
7. Objections to jurisdiction over the subject
matter
8. Efect of estoppel on objections to
jurisdiction
C. Jurisdiction over the issues
D. Jurisdiction over the res or property in litigation
E. Jurisdiction of Courts
1. Supreme Court
2. Court of Appeals
3. Court of Tax Appeals
4. Sandiganbayan
5. Regional Trial Courts
6. Family Courts
7. Metropolitan Trial Courts/Municipal Trial
Courts
8. Shariah Courts
F. Jurisdiction over small claims, cases covered by the
rules on Summary Procedure and Barangay
Conciliation
G. Totality Rule
III. Civil Procedure
A. Actions
1. Meaning of ordinary civil actions
2. Meaning of special civil actions
3. Meaning of criminal actions
4. Civil actions versus Special proceedings
5. Personal actions and real actions
6. Local and transitory actions
7. Actions in rem, in personam and quasi in
rem
B. Cause of Action
1. Meaning of cause of action
2. Right of Action versus Cause of action
3. Failure to state a cause of action
4. Test of the sufciency of a cause of action
5. Splitting a single cause of action and its
efects
6. Joinder and misjoinder of causes of action
C. Parties to Civil Actions
1. Real Parties in interest; Indispensable
parties; Representatives as parties; Necessary
parties; Indigent Parties; Alternative
defendants
2. Compulsory and permissive joinder of
parties
3. Misjoinder and non-joinder of parties
4. Class Suit
5. Suits against entities without juridical
personality
6. Efect of death of party litigant
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D. Venue
1. Venue versus Jurisdiction
2. Venue of real actions
3. Venue of personal actions
4. Venue of actions against non-residents
5. When the Rules on Venue Do not Apply
6. Efects of Stipulations on Venue
E. Pleadings
1. Kinds of Pleadings
a. Complaint
b. Answer
(1) Negative defenses
(2) Negative pregnant
(3) Afrmative Defenses
c. Counterclaims
(1) Compulsory
counterclaim
(2) Permissive
counterclaim
(3) Efect on the
Counterclaim when the
complaint is dismissed
d. Cross-claims
e. Third (fourth, etc.) party
complaints
f. Complaint-in-intervention
g. Reply
2. Pleadings allowed in small claim cases and
cases covered by the rules on summary
procedure
3. Parts of a pleading
a. Caption
b. Signature and address
c. Verifcation and certifcation
against forum shopping
(1) Requirements of a
corporation executing the
verifcation/certifcation of
non-forum shopping
d. Efect of the signature of counsel
in a pleading
4. Allegations in a pleading
a. Manner of making allegations
(1) Condition precedent
(2) Fraud, mistake, malice,
intent, knowledge and
other condition of the
mind, judgments, ofcial
documents or acts
b. Pleading an actionable document
c. Specifc denials
(1) Efect of failure to make
specifc denials
(2) When a specifc denial
requires an oath
5. Efect of failure to plead
1. Failure to plead defenses and
objections
2. Failure to plead a compulsory
counterclaim and cross-claim
6. Default
a. When a declaration of default is
proper
b. Efect of an order of default
c. Relief from an order of default
d. Efect of a partial default
e. Extent of relief
f. Actions where default are not
allowed
7. Filing and Service of pleadings
I. Payment of docket fees
II. Filing versus service of pleadings
III. Periods of fling of pleadings
IV. Manner of fling
V. Modes of service
(1) Personal service
(2) Service by mail
(3) Substituted service
(4) Service of judgments,
fnal orders or resolutions
(5) Priorities in modes of
service and fling
(6) When service is
deemed complete
(7) Proof of fling and
service
8. Amendment
a. Amendment as a matter of right
b. Amendments by leave of court
c. Formal amendment
d. Amendments to conform to or
authorize presentation of evidence
e. Diferent from supplemental
pleadings
f. Efect of amended pleading
F. Summons
1. Nature and purpose of summons in
relation to actions in personam, in rem and
quasi in rem
2. Voluntary appearance
3. Personal service
4. Substituted service
5. Constructive service (by publication)
a. Service upon a defendant where
his identity is unknown or where
his whereabouts are unknown
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b. Service upon residents
temporarily outside the Philippines
6. Extra-territorial service, when allowed
7. Service upon prisoners and minors
8. Proof of service
G. Motions
1. Motions in general
a. Defnition of a motion
b. Motions versus pleadings
c. Contents and form of motions
d. Notice of hearing and hearing of
motions
e. Omnibus motion rule
f. Litigated and ex parte motions
g. Pro-forma motions
2. Motions for Bill of Particulars
a. Purpose and when applied for
b. Actions of the court
c. Compliance with the order and
efect of noncompliance
d. Efect on the period to fle a
responsive pleading
3. Motion to Dismiss
a. Grounds
b. Resolution of Motion
c. Remedies of plaintif when the
complaint is dismissed
d. Remedies of the defendant when
the motion is denied
e. Efect of dismissal of complaint
on certain grounds
f. When grounds pleaded as
afrmative defenses
g. Bar by dismissal
h. Distinguished from demurrer to
evidence under Rule 33
H. Dismissal of Actions
1. Dismissal upon notice by plaintif; Two-
dismissal rule
2. Dismissal upon motion by plaintif; efect
on existing counterclaim
3. Dismissal due to the fault of plaintif
4. Dismissal of counterclaim, cross-claim or
third-party complaint
I. Pre-trial
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; efect of failure to
appear
5. Pre-trial brief; efect of failure to appear
6. Distinction between pre-trial in civil case
and pre-trial in criminal case
7. Alternative Dispute Resolution (ADR)
J. Intervention
1. Requisites for intervention
2. Time to intervene
3. Remedy for the denial of motion to
intervene
K. Subpoena
1. Subpoena duces tecum
2. Subpoena ad testifcandum
3. Service of subpoena
4. Compelling attendance of witnesses;
Contempt
5. Quashing of subpoena
L. Modes of Discovery
1. Depositions pending action; Depositions
before action or pending appeal
a. Meaning of deposition
b. Uses; Scope of examination
c. When may objections to
admissibility be made
d. When may taking of deposition
be terminated or its scope limited
2. Written interrogatories to adverse parties
a. Consequences of refusal to
answer
b. Efect of failure to serve written
interrogatories
3. Request for Admission
a. Implied admission by adverse
party
b. Consequences of failure to
answer request for admission
c. Efect of admission
d. Efect of failure to fle and serve
request for admission
4. Production or inspection of documents or
things
5. Physical and mental examination of
persons
6. Consequences of refusal to comply with
modes of discovery
M. Trial
1. Adjournments and postponements
2. requisites of motion to postpone trial
a. for absence of evidence
b. for illness of party or counsel
3. Agreed statement of facts
4. Order of trial; reversal of order
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5. Consolidation or Severance of hearing or
trial
6. Delegation of reception of evidence
7. Trial by commissioners
a. Reference by consent or ordered
on motion
b. Powers of the commissioner
c. Commissioners report; notice to
parties and hearing on the report
N. Demurrer to Evidence
1. Ground
2. Efect of denial
3. Efect of grant
4. Waiver of right to present evidence
5. Demurrer to evidence in a civil case versus
demurrer to evidence in a criminal case
O. Judgments and Final Orders
1. Judgment without trial
2. Contents of a judgment
3. Judgment on the pleadings
4. Summary judgments
a. for the claimant
b. for the defendant
c. when the case not fully
adjudicated
d. afdavits and attachments
5. Judgment on the pleadings versus
summary judgments
6. Rendition of judgments and fnal orders
7. Entry of judgment and fnal order
P. Post Judgment Remedies
1. Motion for New Trial or reconsideration
a. Grounds
b. When to fle
c. Denial of the motion; efect
d. Grant of the motion; efect
e. Remedy when motion is denied,
Fresh 15-day period rule
2. Appeals in General
a. Judgments and fnal orders
subject to appeal
b. Matters not appealable
c. Remedy against judgments and
orders which are not appealable
d. Modes of appeal
(1) Ordinary appeal
(2) Petition for review
(3) Petition for review on
certiorari
e. Issues to be raised on appeal
f. Period of appeal
g. Perfection of appeal
h. Appeal from judgments or fnal
orders of the MTC
i. Appeal from judgments or fnal
orders of the RTC
j. Appeal from judgments or fnal
orders of the CA
k. Appeal from judgments or fnal
orders of the CTA
l. Review of fnal judgments or fnal
orders of the COA
m. Review of fnal judgments or
fnal orders of the COMELEC
n. Review of fnal judgments or
fnal orders of the CSC
o. Review of fnal judgments or
fnal orders of the Ombudsman
p. Review of fnal judgments or
fnal orders of the NLRC
q. Review of fnal judgments or
fnal orders of quasi-judicial
agencies
3. Relief from judgments, orders and other
proceedings
a. Grounds for availing of the
remedy
b. Time to fle petition
c. Contents of petition
4. Annulment of Judgments or fnal orders
and resolutions
a. Grounds for annulment
b. Period to fle action
c. Efects of judgment of annulment
5. Collateral attack of judgments
Q. Execution, Satisfaction and Efect of Judgments
1. Diference between fnality of judgment
for purposes of appeal; for purposes of
execution
2. When execution shall issue
a. Execution as a matter of right
b. Discretionary execution
3. How a judgment is executed
a. Execution by motion or by
independent action
b. Issuance and contents of a writ of
execution
c. Execution of judgments for
money
d. Execution of judgments for
specifc acts
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e. Execution of special judgments
f. Efect of levy on third persons
4. Properties exempt from execution
5. Proceedings where property is claimed by
third persons
a. in relation to third party claim in
attachment and replevin
6. Rules on Redemption
7. Examination of Judgment Obligor When
Judgment is unsatisfed
8. Examination of Obligor of Judgment
Obligor
9. Efect of Judgment or Final Orders
10. Enforcement and Efect of Foreign
Judgments or Final Orders
R. Provisional Remedies
1. Nature of provisional remedies
2. Jurisdiction over provisional remedies
3. Preliminary Attachment
a. Grounds for issuance of writ of
attachment
b. Requisites
c. Issuance and contents of order of
attachment; afdavit and bond
d. Rule on prior or
contemporaneous service of
summons
e. Manner of attaching real and
personal property; when property
attached is claimed by third person
f. Discharge of attachment and the
counter-bond
g. Satisfaction of judgment out of
property attached
4. Preliminary Injunction
a. Defnitions and Diferences:
Preliminary Injunction and
Temporary Restraining Order
b. Requisites
c. Kinds of Injunction
d. When writ may be issued
e. Grounds for issuance of
preliminary injunction
f. Grounds for objection to, or for
the dissolution of injunction or
restraining order
g. Duration of TRO
h. In relation to RA 8975, Ban on
issuance of TRO or Writ of
Injunction in cases involving
government infrastructure projects
i. Rule on prior or contemporaneous
service of summons in relation to
attachment
5. Receivership
a. Cases when receiver may be
appointed
b. Requisites
c. Requirements before issuance of
an Order
d. General powers of a receiver
e. Two (2) kinds of bonds
f. Termination of receivership
6. Replevin
a. When may writ be issued
b. Requisites
c. Afdavit and bond; Redelivery
Bond
d. Sherifs duty in the
implementation of the writ; when
property is claimed by third party
S. Special Civil Actions
1. Nature of special civil actions
2. Ordinary civil actions versus special civil
actions
3. Jurisdiction and venue
4. Interpleader
a. Requisites for interpleader
b. When to fle
5. Declaratory Reliefs and Similar Remedies
a. Who may fle the action
b. Requisites of action for
declaratory relief
c. When court may refuse to make
judicial declaration
d. Conversion to ordinary action
e. Proceedings considered as
similar remedies
A. Reformation of an
instrument
B. Consolidation of
ownership
C. Quieting of title to real
property
6. Review of Judgments and Final Orders or
Resolution of the COMELEC and COA
a. Application of Rule 65 under
Rule 64
b. Distinction in the application of
Rule 65 to judgments of the
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COMELEC and COA and the
application of Rule 65 to other
tribunals, persons and ofcers
7. Certiorari, Prohibition and Mandamus
a. Defnitions and distinctions
b. Requisites
c. When petition for certiorari,
prohibition and mandamus is
proper
d. Injunctive relief
e. Certiorari distinguished from
Appeal by Certiorari; Prohibition
and Mandamus distinguished from
Injunction; when and where to fle
petition
f. Exceptions to fling of motion for
reconsideration before fling
petition
g. Reliefs petitioner is entitled to
h. Actions/Omissions of MTC/RTC
in election cases
i. Where to fle petition
j. Efects of fling of an
unmeritorious petition
8. Quo Warranto
a. Distinguish from Quo Warranto
in the Omnibus Election Code
b. When government commence an
action against individuals
c. When individual may commence
an action
d. Judgment in Quo Warranto
action
e. Rights of a person adjudged
entitled to public ofce
9. Expropriation
a. Matters to allege in complaint for
expropriation
b. Two stages in every action for
expropriation
c. When plaintif can immediately
enter into possession of the real
property, in relation to RA 8974
d. New system of immediate
payment of initial just
compensation
e. Defenses and objections
f. Order of Expropriation
g. Ascertainment of just
compensation
h. Appointment of Commissioners;
Commissioners report; Court
action upon commissioners report
i. Rights of plaintif upon judgment
and payment
j. Efect of recording of judgment
10. Foreclosure of Real Estate Mortgage
a. Judgment on foreclosure for
payment or sale
b. Sale of mortgaged property;
efect
c. Disposition of proceeds of sale
d. Defciency judgment
(1) Instances when court
cannot render defciency judgment
e. Judicial foreclosure versus
extrajudicial foreclosure
f. Equity of redemption versus right
of redemption
11. Partition
a. Who may fle complaint; who
should be made defendants
b. Matters to allege in the complaint
for partition
c. Two (2) stages in every action for
partition
d. Order of partition and partition
by agreement
e. Partition by commissioners;
Appointment of commissioners,
Commissioners report; Court
action upon commissioners report
f. Judgment and its efects
g. Partition of personal property
h. Prescription of action
12. Forcible Entry and Unlawful Detainer
a. Defnitions and Distinction
b. Distinguished from accion
publiciana and accion
reinvindicatoria
c. How to determine jurisdiction in
accion publiciana and accion
reinvindicatoria
d. Who may institute the action and
when; against whom the action may
be maintained
e. Pleadings allowed
f. Action on the complaint
g. When demand is necessary
h. Preliminary injunction and
preliminary mandatory injunction
i. Resolving defense of ownership
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j. How to stay the immediate
execution of judgment
k. Summary procedure, prohibited
pleadings
13. Contempt
a. Kinds of contempt
b. Purpose and nature of each
c. Remedy against direct contempt;
penalty
d. Remedy against indirect
contempt; penalty
e. How contempt proceedings are
commenced
f. Acts deemed punishable as
indirect contempt
g. When imprisonment shall be
imposed
h. Contempt against quasi-judicial
bodies
IV. Special Proceedings
A. Settlement of Estate of Deceased Persons, Venue
and Process
1. Which court has jurisdiction
2. Venue in judicial settlement of estate
3. Extent of jurisdiction of Probate Court
4. Powers and Duties of Probate Court
B. Summary Settlement of Estates
1. Extrajudicial settlement by agreement
between heirs, hen allowed
2. Two-year prescriptive period
3. Afdavit of Self-adjudication by sole heir
4. Summary settlement of estates of small
value, when allowed
5. Remedies of aggrieved parties after extra-
judicial settlement of estate
C. Production and Probate of Will
1. Nature of probate proceeding
2. Who may petition for probate; persons
entitled to notice
D. Allowance or Disallowance of Will
1. Contents of petition for allowance of will
2. Grounds for disallowing a will
3. Reprobate; Requisites before will proved
outside allowed in the Philippines; efects of
probate
E. Letters Testamentary and of Administration
1. When and To whom letters of
administration granted
2. Order of preference
3. Opposition to issuance of letters
testamentary; simultaneous fling of petition
for administration
4. Powers and duties of Executors and
Administrators; restrictions on the powers
5. Appointment of Special Administrator
6. Grounds for removal of administrator
F. Claims Against the Estate
1. Time within which claims shall be fled;
exceptions
2. Statute of Non-claims
3. Claim of Executor or administrator against
the Estate
4. Payment of Debts
G. Actions by and against Executors and
Administrators
1. Actions that may be brought against
executors and administrators
2. Requisites before creditor may bring an
action for recovery of property fraudulently
conveyed by the deceased
H. Distribution and Partition
1. Liquidation
2. Project of Partition
3. Remedy of an heir entitled to residue but
not given his share
4. Instances when probate court may issue
writ of execution
I. Trustees
1. Distinguished from
executor/administrator
2. Conditions of the Bond
3. Requisites for the removal and resignation
of a trustee
4. Grounds for removal and resignation of a
trustee
5. Extent of authority of trustee
J. Escheat
1. When to fle
2. Requisites for fling of petition
3. Remedy of respondent against petition;
period for fling a claim
K. Guardianship
1. General powers and duties of guardians
2. Conditions of the bond of the guardian
3. Rule on Guardianship over minor
L. Adoption
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1. Distinguish domestic adoption from inter-
country adoption
2. Domestic Adoption Act
a. efects of adoption
b. instances when adoption may be
rescinded
c. efects of rescission of adoption
3. Inter-country Adoption
a. when allowed
b. functions of the RTC
c. "best interest of the minor"
standard
M. Writ of Habeas Corpus
1. Contents of the petition
2. Contents of the Return
3. Distinguish peremptory writ from
preliminary citation
4. When not proper/applicable
5. When writ disallowed/discharged
6. Distinguish from writ of Amparo and
Habeas Data
7. Rules on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of
Minors (AM No. 03-04-04-SC)
N. Writ of Amparo (AM No. 07-9-12-SC)
1. Coverage
2. Distinguish from habeas corpus and
habeas data
3. Diferences between Amparo and search
warrant
4. Who may fle
5. Contents of return
6. Efects of failure to fle return
7. Omnibus waiver rule
8. Procedure for hearing
9. Institution of separate action
10. Efect of fling of a criminal action
11. Consolidation
12. Interim reliefs available to petitioner and
respondent
13. Quantum of proof in application for
issuance of writ of Amparo
O. Writ of Habeas Data (AM No. 08-1-16-SC)
1. Scope of writ
2. Availability of writ
3. Distinguish from Habeas Corpus and
Amparo
4. Who may fle
5. Contents of the petition
6. Contents of return
7. Instances when petition be heard in
chambers
8. Consolidation
9. Efect of fling of a criminal action
10. Institution of separate action
11. Quantum of proof in application for
issuance of writ of Amparo
P. Change of Name
1. Diferences under Rule 103, RA 9048 and
Rule 108
2. Grounds for change of name
Q. Absentees
1. Purpose of the Rule
2. Who may fle; when to fle
R. Cancellation or Correction of Entries in the Civil
Registry
1. Entries subject to cancellation or correction
under Rule 108, in relation to RA 9048
S. Appeals in Special Proceeding
1. Judgments and orders for which appeal
may be taken
2. When to appeal
3. Modes of appeal
4. Rule on Advance Distribution
V. Criminal Procedure
A. General Matters
1. Distinguish Jurisdiction over subject
matter from jurisdiction over person of the
accused
2. Requisites for exercise of criminal
jurisdiction
3. Jurisdiction of Criminal courts
4. When injunction may be issued to restrain
criminal prosecution
B. Prosecution of Ofenses
1. Criminal actions, how instituted
2. Who may fle them, crimes that cannot be
prosecuted de ofcio
3. Criminal actions, when enjoined
4. Control of prosecution
5. Sufciency of Complaint or Information
6. Designation of Ofense
7. Cause of the Accusation
8. Duplicity of the Ofense; Exception
9. Amendment or Substitution of complaint
or information
10. Venue of criminal actions
11. Intervention of ofended party
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C. Prosecution of Civil Action
1. Rule on implied institution of civil action
with criminal action
2. When civil action may proceed
independently
3. When separate civil action is suspended
4. Efect of the death of accused or convict on
civil action
5. Prejudicial Question
6. Rule on Filing Fees in civil action deemed
instituted with the criminal action
D. Preliminary Investigation
1. Nature of right
2. Purposes of preliminary investigation
3. Who may conduct determination of
existence of probable cause
4. Resolution of investigation prosecutor
5. Review
6. When warrant of arrest may issue
7. Cases not requiring a preliminary
investigation
8. Remedies of accused if there was no
preliminary investigation
9. Inquest
E. Arrest
1. Arrest, how made
2. Arrest without warrant, when lawful
3. Method of arrest
a. by ofcer with warrant
b. by ofcer without warrant
c. by private person
4. Requisites of a valid warrant of arrest
5. Determination of Probable Cause for
issuance of warrant of arrest
6. Distinguish probable cause of fscal from
that of a judge
F. Bail
1. Nature
2. When a matter of right; exceptions
3. When a matter of discretion
4. Hearing of application for bail in capital
ofenses
5. Guidelines in fxing amount of bail
6. Bail when not required
7. Increase or Reduction of Bail
8. Forfeiture and Cancellation of bail
9. Application not a bar to objections in
illegal arrest, lack of or irregular preliminary
investigation
10. Hold Departure Order & Bureau of
Immigration Watchlist
G. Rights of the Accused
1. Rights of accused at the trial
2. Rights of persons under Custodial
Investigation
H. Arraignment and Plea
1. Arraignment and Plea, how made
2. When should plea of NOT GUILTY be
entered
3. When may accused enter a plea of guilty
to a lesser ofense
4. Accused plead guilty to capital ofense,
what the court should do
5. Searching Inquiry
6. Improvident plea
7. Grounds for suspension of arraignment
I. Motion to Quash
1. Grounds
2. Distinguish from demurrer to evidence
3. Efects of sustaining the motion to quash
4. Exception to the rule that sustaining the
motion is not a bar to another prosecution
5. Double Jeopardy
6. Provisional Dismissal
J. Pre-trial
1. Matters to be considered during pre-trial
2. What the court should do when
prosecution and ofended party agree to the
plea ofered by the accused
3. Pre-trial agreement
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for Court Annexed
Mediation and Judicial Dispute Resolution
K. Trial
1. Instances when presence of accused is
required by law
2. Requisite before trial can be suspended on
account of absence of witness
3. Trial in Absentia
4. Remedy when accused is not brought to
trial within the prescribed period
5. Requisites for discharge of accused to
become a state witness
6. Efects of Discharge of accused as state
witness
7. Demurrer to Evidence
L. Judgment
1. Requisites of a judgment
2. Contents of Judgment
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3. Promulgation of judgment; instances of
promulgation of judgment in absentia
4. When does judgment become fnal (four
instances)
M. New Trial or Reconsideration
1. Grounds for New Trial
2. Grounds for Reconsideration
3. Requisites before a new trial may be
granted on ground of newly discovered
evidence
4. Efects of granting a new trial or
reconsideration
5. Application of Neypes Doctrine in
Criminal Cases
N. Appeal
1. Efect of an Appeal
2. Where to appeal
3. How appeal taken
4. Efect of appeal by any of several accused
5. Grounds for dismissal of appeal
O. Search and Seizure
1. Nature of search warrant
2. Distinguish from warrant of arrest
3. Application for search warrant, where
fled
4. Probable Cause
5. Personal examination by judge of the
applicant and witnesses
6. Particularity of place to be searched and
things to be seized
7. Personal property to be seized
8. Exceptions to search warrant requirement
a. Search incidental to lawful arrest
b. Consented Search
c. Search of moving vehicle
d. Check points; body checks in
airport
e. Plain view situation
f. Stop and Frisk situation
g. Enforcement of Custom Laws
9. Remedies from unlawful search and
seizure
P. Provisional Remedies
1. Nature
2. Kinds of provisional remedies
VI. Evidence
A. General Principles
1. Concept of Evidence
2. Scope of the Rules of Evidence
3. Evidence in Civil Cases Versus Evidence
in Criminal Cases1avvphi1
4. Proof Versus Evidence
5. Factum Probans Versus Factum
Probandum
6. Admissibility of Evidence
a. Requisites for admissibility of
evidence
b. Relevance of evidence and
collateral matters
c. Multiple admissibility
d. Conditional admissibility
e. Curative admissibility
f. Direct and circumstantial
evidence
g. Positive and negative evidence
h. Competent and credible evidence
7. Burden of Proof and Burden of Evidence
8. Presumptions
a. Conclusive presumptions
b. Disputable presumptions
9. Liberal Construction of the Rules of
Evidence
10. Quantum of Evidence (Weight And
Sufciency of Evidence)
a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence
B. Judicial Notice and Judicial Admissions
1. What Need Not be Proved
2. Matters of Judicial Notice
a. Mandatory
b. Discretionary
3. Judicial Admissions
a. Efect of judicial admissions
b. How judicial admissions may be
contradicted
4. Judicial Notice of Foreign Laws, Law of
Nations and Municipal Ordinance
C. Object (Real) Evidence
1. Nature of Object Evidence
2. Requisites for Admissibility
3. Categories of Object Evidence
4. Demonstrative Evidence
5. View of an Object or Scene
6. Chain of Custody in Relation to Section 21
of the Comprehensive Dangerous Drugs Act
of 2002
7. Rule on DNA Evidence (A.M. No. 06-11-5-
SC)
a. Meaning of DNA
b. Applicable for DNA testing order
11
c. Post-conviction DNA testing;
remedy
d. Assessment of probative value of
DNA evidence and admissibility
e. Rules on evaluation of reliability
of the DNA testing Methodology
D. Documentary Evidence
1. Meaning of Documentary Evidence
2. Requisites for Admissibility
3. Best Evidence Rule
a. Meaning of the rule
b. When applicable
c. Meaning of original
d. Requisites for introduction of
secondary evidence
4. Rules on Electronic Evidence (A.M. No. 01-
7-01-SC)
a. Meaning of electronic evidence;
electronic data massage
b. Probative value of electronic
documents or evidentiary weight;
method of proof
c. Authentication of electronic
documents and electronic
signatures
d. Electronic documents and the
hearsay rule
e. Audio, photographic, video and
ephemeral evidence
5. Parol Evidence Rule
a. Application of the parol evidence
rule
b. When parole evidence can be
introduced
c. Distinctions between the best
evidence rule and parol evidence
rule
6. Authentication and Proof of Documents
a. Meaning of authentication
b. Public and private documents
c. When a private writing requires
authentication; proof of a private
writing
d. When evidence of authenticity of
a private writing is not required
(ancient documents)
e. How to prove genuineness of a
handwriting
f. Public documents as evidence;
proof of ofcial record
g. Attestation of a copy
h. Public record of a public
document
i. Proof of lack of record
j. How a judicial record is
impeached
k. Proof of notarial documents
l. How to explain alterations in a
document
m. Documentary evidence in an
unofcial language
E. Testimonial Evidence
1. Qualifcations of a Witness
2. Competency Versus Credibility of a
Witness
3. Disqualifcations of Witnesses
a. Disqualifcation by reason of
mental capacity or immaturity
b. Disqualifcation by reason of
marriage
c. Disqualifcation by reason of
death or insanity of adverse party
d. Disqualifcation by reason of
privileged communications
(1) Husband and wife
(2) Attorney and client
(3) Physician and patient
(3) and penitent
(4) Public ofcers
Parental and flial privilege rule
4. Examination of a Witness
a. Rights and obligations of a
witness
b. Order in the examination of an
individual witness
(1) Direct examination
(2) Cross examination
(3) Re-direct examination
(4) Re-cross examination
(5) Recalling the witness
c. Leading and misleading
questions
d. Methods of impeachment of
adverse partys witness
e. How the witness is impeached by
evidence of inconsistent statements
(laying the predicate)
f. Evidence of the good character of
a witness
5. Admissions and Confessions
a. Res inter alios acta rule
b. Admission by a party
c. Admission by a third party
d. Admission by a co-partner or
agent
e. Admission by a conspirator
f. Admission by privies
g. Admission by silence
12
h. Confessions
i. Similar acts as evidence
6. Hearsay Rule
a. Meaning of hearsay
b. Reason for exclusion of hearsay
evidence
c. Exceptions to the hearsay rule
(1) Dying declaration
(2) Declaration against
interest
(3) Act or declaration
about pedigree
(4) Family reputation or
tradition regarding
pedigree
(5) Common reputation
(6) Part of the res gestae
(7) Entries in the course of
business
(8) Entries in ofcial
records
(9) Commercial lists and
the like
(10) Learned treaties
(11) Testimony or
deposition at a former
trial1avvphi1
7. Opinion Rule
a. Opinion of expert witness
b. Opinion of ordinary witness
8. Character Evidence
a. Criminal cases
b. Civil cases
9. Rule on Examination of a Child Witness
(A.M. No. 004-07-SC)
a. Applicability of the rule
b. Meaning of "child witness"
c. Competency of a child witness
d. Examination of a child witness
e. Live-link TV testimony of a child
witness
f. Videotaped deposition of a child
witness
g. Hearsay exception in child abuse
cases
h. Sexual abuse shield rule
i. Protective orders
F. Ofer and Objection
1. Ofer of Evidence
2. When to Make an Ofer
3. Objection
4. Repetition of an Objection
5. Ruling
6. Striking Out of an Answer
7. Tender of Excluded Evidence
G. Supreme Court Rulings as of December 2010
VII. Revised Rules on Summary Procedure
A. Cases covered by the Rule
B. Efect of failure to answer
C. Preliminary conference and appearances of parties
VIII. Katarungang Pambarangay
A. Cases covered
B. Subject matter for amicable settlement
C. Venue
D. When parties may directly go to court
E. Execution
F. Repudiation
IX. Rule of Procedure for Small Claims Cases (AM No. 08-8-
7-SC)
A. Scope and applicability of the Rule
B. Commencement of small claims action; Response
C. Prohibited pleadings and motions
D. Appearances
E. Hearing; duty of the judge
F. Finality of judgment
X. Rules of Procedure for Environmental Cases (AM No. 09-6-
8-SC)
A. Scope and Applicability of the Rule
B. Civil Procedure
1. Prohibition against Temporary Restraining
Order and Preliminary Injunction
2. Pre-trial Conference; Consent Decree
3. Prohibited Pleadings and Motions
4. Temporary Environmental Protection
Order (TEPO)
5. Judgment and Execution; Reliefs in a
citizens suit
6. Permanent Environmental Protection
Order; Writ of continuing mandamus
7. Strategic Lawsuit against Public
Participation
C. Special Proceedings
1. Writ of Kalikasan
2. Prohibited pleadings and motions
3. Discovery measures
4. Writ of Continuing Mandamus
D. Criminal Procedure
1. Who may fle
2. Institution of criminal and civil action
3. Arrest without warrant, when valid
4. Procedure in the custody and disposition
of seized items
13
5. Bail
6. Arraignment and Plea
7. Pre-trial
8. Subsidiary liabilities
E. Evidence
1. Precautionary principle
2. Documentary evidence
IMPORTANT NOTE: This bar coverage description is not
intended and should not be used by law schools as a syllabus
or course outline in the covered subjects. It has been drawn up
for the limited purpose of ensuring that candidates reviewing
for the bar examinations are guided on what basic and
minimum amounts of laws, doctrines, and principles they need
to know and be able to use correctly before they can be licensed
to practice law. More is required for excellent and
distinguished work as members of the Bar.
CIVIL PROCEDURE
Rules 1 71
GENERAL PRINCIPLES
CONCEPT OF REMEDIAL LAW
Ree!"#l L#$ is that branch of law which
prescribes the method of enforcing rights or
obtaining redress for their invasion.
SUBSTANTIVE LAW AS DISTINGUIS%ED
FROM REMEDIAL LAW
14
Su&s'#('")e l#$ creates, defnes and regulates
rights and duties regarding life, liberty or
property which when violated gives rise to a
cause of action.
Ree!"#l l#$ prescribes the methods of
enforcing those rights and obligations created by
substantive law by providing a procedural system
for obtaining redress for the invasion of rights and
violations of duties and by prescribing rules as to
how suits are fled, tried and decided by the
courts.
As applied to criminal law, substantive law is that
which declares what acts are crimes and
prescribes the punishment for committing them,
as distinguished from remedial law which
provides or regulates the steps by which one who
commits a crime is to be punished.
RULE*MA+ING POWER OF T%E SUPREME
COURT
Section 5 (5), Art. V of the !onstitution provides
that the Supreme !ourt shall have the power to"
a. promulgate rules concerning the
protection and enforcement of
constitutional rights, pleading, practice,
and procedure in all courts#
b. admission to the practice of law#
c. the ntegrated $ar#
d. and legal assistance to the
underprivileged
LIMITATIONS OF T%E RULE*MA+ING POWER
OF T%E SUPREME COURT
%) &he rules shall provide a simplifed and
ine'pensive procedure for the speedy
disposition of cases
() &hey shall be uniform for all courts of the
same grade
)) &hey shall not diminish, increase, or
modify substantive rights.
*) &he power to admit attorneys to the $ar is
not an arbitrary and despotic one but is
the duty of the court to e'ercise and
regulate it by a sound and +udicial
discretion.
,ules of procedure of special courts and
-uasi.+udicial bodies shall remain e/ective
unless disapproved by the Supreme !ourt.
POWER OF T%E SUPREME COURT TO
AMEND AND SUSPEND PROCEDURAL RULES
0hen compelling reasons so warrant or when the
purpose of +ustice re-uires it 1 discretionary upon
courts.
,easons that would warrant the suspension"
%) the e'istence of special or compelling
circumstances#
() merits of the case#
)) cause not entirely attributable to the
fault or negligence of the party favored
by the suspension of rules
*) a lac2 of showing that the review
sought is merely frivolous and dilatory#
5) the other party will not be un+ustly
pre+udiced thereby.
0here substantial and important issues await
resolution.
0hen transcendental matters of life, liberty or
state security are involved.
&he constitutional power of the Supreme
!ourt to promulgate rules of practice and
procedure necessarily carries with it the
power to overturn +udicial precedents on
points of remedial law through the
amendment of the ,ules of !ourt.
NATURE OF P%ILIPPINE COURTS
3hilippine courts are both courts of law and
e-uity. 4ence, both legal and e-uitable
+urisdiction is dispensed with in the same tribunal.
W%AT IS A COURT
a. t is an organ of government belonging to
the +udicial department the function of
which is the application of the laws to the
controversies brought before it as well as
the public administration of +ustice.
b. t is a governmental body o5cially
assembled under authority of law at the
appropriate time and place for the
administration of +ustice through which the
State enforces its sovereign rights and
powers.
c. t is a board or tribunal which decides a
litigation or contest.
COURT DISTINGUIS%ED FROM ,UDGE
15
a) A court is a tribunal o5cially assembled under
authority of law# a +udge is simply an o5cer of
such tribunal#
b) A court is an organ of the government with a
personality separate and distinct from the
person or +udge who sits on it#
c) A court is a being in imagination comparable
to a corporation, whereas a +udge is a physical
person#
d) A court may be considered an o5ce# a +udge
is a public o5cer# and
e) &he circumstances of the court are not
a/ected by the circumstances that would
a/ect the +udge.
CLASSIFICATION OF P%ILIPPINE COURTS
,egular courts engaged in the administration of
+ustice are organi6ed into four (*) levels"
(a) F"-s' Le)el .MTCs/ MeTCs/ MCTCs0 7 which
try and decide
(%) C-""(#l #1'"2(s involving"
a. violations of city or municipal
ordinances committed within their
respective territorial +urisdiction# and
b. o/enses punishable with imprisonment
not e'ceeding si' (8) years irrespective
of the amount of fne and regardless of
other imposable accessory or other
penalties, and
(() C")"l #1'"2(s including 9:9!&;9<& !AS9S
(=9>?) and recovery of personal property with
a value of not more than P300/000 outside
;; or does not e'ceed P400/000 in ;;#
(b) Se12(! Le)el .RTCs/ F#"l5 C2u-'s0
courts of general +urisdiction
among the civil actions assigned to
them by law are those in which the
sub+ect of litigation is
a. actions incapable of pecuniary
estimation
b. actions involving title to or
possession of real property
where the assessed value of the
property e'ceeds P20/000
outside ;; or e'ceeds
P60/000 in ;;.
c. where the demand e'clusive of
interest, damages of whatever
2ind, attorney@s fees, litigation
e'penses, and cost, or the
value of the personal property
or controversy e'ceeds
P300/000 outside ;; or
e'ceeds P400/000 in ;;.
e'ercise appellate +urisdiction
,eview cases appealed from courts
of the frst level.
(c) T7"-! Le)el .C2u-' 28 A99e#ls/
S#(!":#(&#5#(0
!A is an appellate court
a. reviewing cases appealed to it from
the ,&! on -uestions of fact or mi'ed
-uestions of fact and law
b. decisions of the ,&! in the e'ercise of
original +urisdiction
i. as a matter of right
ii. as a matter of discretion.
Accasionally, !A may act as a trial court,
as in actions praying for the annulment of
fnal and e'ecutory +udgments of ,&!s on
the ground of e'trinsic fraud subse-uently
discovered, against which no other
remedies lies.
S#(!":#(&#5#( 7#s ;u-"s!"1'"2(
over all criminal and civil cases
involving
graft and corrupt practices act
such other o/enses committed
by public o5cers and
employees including those in
BA!!s in relation to their o5ce.
t also has e'clusive appellate
+urisdiction over fnal +udgments,
resolutions, or orders of ,&!s whether
in the e'ercise of their own original or
appellate +urisdiction over criminal and
civil cases committed by public o5cers
or employees including those in BA!!s
in relation to their o5ce.
(d) F2u-'7 Le)el .Su9-ee C2u-'0
COURTS OF ORIGINAL AND APPELLATE
,URISDICTION
A court is one with original +urisdiction when
actions or proceedings are originally fled with it.
A court is one with appellate +urisdiction when it
has the power of review over the decisions or
orders of a lower court.
;e&!s, ;!&!s and ;&!s are courts of original
+urisdiction without appellate +urisdiction. ,&! is
li2ewise a court of original +urisdiction with
respect to cases originally fled with it# and
appellate court with respect to cases decided by
16
;&!s within its territorial +urisdiction. (Sec. 22, BP
129).
!A is primarily a court of appellate +urisdiction
with competence to review +udgments of the ,&!s
and specifed -uasi.+udicial agencies (Sec. 9[3],
BP 129). t is also a court of original +urisdiction
with respect to cases fled before it involving
issuance of writs of certiorari, mandamus, -uo
warranto, habeas corpus, and prohibition. !A is a
court of original and e'clusive +urisdiction over
actions for annulment of +udgments of ,&!s (Sec.
9 [1],[2], BP 129).
&he S! is fundamentally a court of appellate
+urisdiction but it may also be a court of original
+urisdiction over cases a/ecting ambassadors,
public ministers and consuls, and in cases
involving petitions for certiorari, prohibition and
mandamus (Sec. 5[1], Art. VIII, Constitution). &he
Supreme !ourt en banc is not an appellate court
to which decisions or resolutions of a division of
the Supreme !ourt may be appealed.
COURTS OF GENERAL AND SPECIAL
,URISDICTION
!ourts of general +urisdiction are those with
competence to decide on their own +urisdiction
and to ta2e cogni6ance of all cases, civil and
criminal, of a particular nature. !ourts of special
(limited) +urisdiction are those which have only a
special +urisdiction for a particular purpose or are
clothed with special powers for the performance
of specifed duties beyond which they have no
authority of any 2ind.
A court may also be considered general if it has
the competence to e'ercise +urisdiction over
cases not falling within the +urisdiction of any
court, tribunal, person or body e'ercising +udicial
or -uasi.+udicial functions. t is in the conte't that
the ,&! is considered a court of general
+urisdiction.
CONSTITUTIONAL AND STATUTORY COURTS
A constitutional court is one created by a direct
!onstitutional provision. 9'ample of this court is
the S!, which owes its creation from the
!onstitution itself. Anly the S! is a !onstitutional
court.
A statutory court is one created by law other than
the !onstitution. All courts e'cept the S! are
statutory courts. S$ was not directly created by
the !onstitution but by law pursuant to a
constitutional mandate.
COURTS OF LAW
A court of law decides a case according to the
e'isting laws.
COURTS OF E<UITY
A court of e-uity ad+udicates a controversy
according to the common precepts of what is
right and +ust without in-uiring into the terms of
the statutes.
PRINCIPLE OF ,UDICIAL %IERARC%Y
&his is an ordained se-uence of recourse to
courts vested with concurrent +urisdiction,
beginning from the lowest, on to the ne't highest
and ultimately to the highest. &his hierarchy is
determinative of the venue of appeals, and is
li2ewise determinative of the proper forum for
petitions for e'traordinary writs. &his is an
established policy necessary to avoid inordinate
demands upon the !ourt@s time and attention
which are better devoted to those matters within
its e'clusive +urisdiction, and to preclude the
further clogging of the !ourt@s doc2et (Sec. 9[1],
BP 129; Sec. 5[1], Art. VIII, Constitution of the
Phii!!ines).
A higher court will not entertain direct resort to it
unless the redress cannot be obtained in the
appropriate courts. &he S! is a court of last
resort. t cannot and should not be burdened with
the tas2 of deciding cases in the frst instances.
ts +urisdiction to issue e'traordinary writs should
be e'ercised only where absolutely necessary or
where serious and important reasons e'ist.
&he doctrine of hierarchy of courts may be
disregarded if warranted by the nature and
importance of the issues raised in the interest of
speedy +ustice and to avoid future litigations, or
in cases of national interest and of serious
implications. >nder the principle of liberal
interpretations, for e'ample, it may ta2e
cogni6ance of a petition for certiorari directly fled
before it.
DOCTRINE OF NON*INTERFERENCE OR
DOCTRINE OF ,UDICIAL STABILITY
!ourts of e-ual and coordinate +urisdiction cannot
interfere with each other@s orders. &hus, the ,&!
has no power to nullify or en+oin the enforcement
of a writ of possession issued by another ,&!. &he
principle also bars a court from reviewing or
interfering with the +udgment of a co.e-ual court
over which it has no appellate +urisdiction or
power of review.
17
&his doctrine applies with e-ual force to
administrative bodies. 0hen the law provides for
an appeal from the decision of an administrative
body to the S! or !A, it means that such body is
co.e-ual with the ,&! and logically beyond the
control of the latter.
,URISDICTION
:urisdiction 7 the power and authority of the court
to hear, try and decide a case.
,URISDICTION OVER T%E PARTIES
a) &he manner by which the court ac-uires
+urisdiction over the parties depends on
whether the party is the plainti/ or the
defendant
b) :urisdiction over the plainti/ is ac-uired by his
fling of the complaint or petition. $y doing so,
he submits himself to the +urisdiction of the
court.
c) :urisdiction over the person of the defendant
is obtained either by a valid service of
summons upon him or by his voluntary
submission to the court@s authority.
d) &he mode of ac-uisition of +urisdiction over
the plainti/ and the defendant applies to both
ordinary and special civil actions li2e
mandamus or unlawful detainer cases.
%OW ,URISDICTION OVER PLAINTIFF IS
AC<UIRED
Ac-uired when the action is commenced
by the fling of the complaint. &his
presupposes payment of the doc2et fees.
%OW ,URISDICTION OVER DEFENDANT IS
AC<UIRED
:urisdiction over the person of the defendant is
re-uired only in an action in personam# it is not a
prere-uisite in an action in rem and -uasi in rem.
n an action in personam, +urisdiction over the
person is necessary for the court to validly try
and decide the case, while in a proceeding in rem
or -uasi in rem, +urisdiction over the person of the
defendant is not a prere-uisite to confer
+urisdiction on the court, provided the latter has
+urisdiction over the res.
$y voluntary appearance of the defendant,
without service of summons or despite a
defective service of summons. &he defendant@s
voluntary appearance in the action shall be
e-uivalent to service of summons.
nstances when appearance of defendant is not
tantamount to voluntary submission to the
+urisdiction of the court"
%) when defendant fles the necessary
pleading#
() when defendant fles motion for
reconsideration of the +udgment by
default#
)) when defendant fles a petition to set
aside the +udgment of default#
*) when the parties +ointly submit a
compromise agreement for approval of the
court#
5) when defendant fles an answer to the
contempt charge#
8) when defendant fles a petition for
certiorari without -uestioning the court@s
+urisdiction over his person.
,URISDICTION OVER T%E SUB,ECT MATTER
t is the power to deal with the general sub+ect
involved in the action, and means not simply
+urisdiction of the particular case then occupying
the attention of the court but +urisdiction of the
class of cases to which the particular case
belongs. t is the power or authority to hear and
determine cases to which the proceeding is
-uestion belongs.
0hen a complaint is fled in court, the basic
-uestions that i!so f"cto are to be immediately
resolved by the court on its own"
a) 0hat is the sub+ect matter of their
complaint fled before the courtC
b) ?oes the court have +urisdiction over the
said sub+ect matter of the complaint
before itC Answering these -uestions
inevitably re-uires loo2ing into the
applicable laws conferring +urisdiction.
,URISDICTION VERSUS EXERCISE OF
,URISDICTION
:urisdiction is the power or authority of the court.
&he e'ercise of this power or authority is the
e'ercise of +urisdiction.
ERROR OF ,URISDICTION VS= ERROR OF
,UDGMENT
An 9,,A, A= :>,S?!&A< is one where the act
complained of was issued by the court without or
in e'cess of +urisdiction. t occurs when the court
e'ercises a +urisdiction not conferred upon it by
law, or when the court or tribunal although with
+urisdiction, acts in e'cess of its +urisdiction or
18
with grave abuse of discretion amounting to lac2
or +urisdiction.
An 9,,A, A= :>?B;9<& is one which the court
may commit in the e'ercise of its +urisdiction. As
long as the court acts within its +urisdiction, any
alleged errors committed in the e'ercise of its
discretion will amount to nothing more than mere
errors of +udgment. 9rrors of +udgment include
errors of procedure or mista2es in the courtDs
fndings.
9rrors of +udgment are correctible by appeal#
errors of +urisdiction are correctible only by the
e'traordinary writ of certiorari. Any +udgment
rendered without +urisdiction is a total nullity and
may be struc2 down at any time, even on appeal#
the only e'ception is when the party raising the
issue is barred by estoppel.
%OW ,URISDICTION IS CONFERRED AND
DETERMINED
:urisdiction is a matter of substantive law
because it is conferred by law. &his +urisdiction
which is a matter of substantive law should be
construed to refer only to +urisdiction over the
sub+ect matter. :urisdiction over the parties, the
issues and the res are matters of procedure. &he
test of +urisdiction is whether the court has the
power to enter into the in-uiry and not whether
the decision is right or wrong.
t is the duty of the court to consider the -uestion
of +urisdiction before it loo2s at other matters
involved in the case. f the court fnds that it has
+urisdiction, it is the duty of the court to e'ercise
the +urisdiction conferred upon it by law and to
render a decision in a case properly submitted to
it. t cannot decline to e'ercise its +urisdiction.
=ailure to do so may be enforced by way of
mandamus proceeding.
<ote" :urisdiction over the sub+ect matter
is conferred by substantive law which
may either be a !onstitution or statute#
while +urisdiction over the sub+ect matter
is determined by the allegations of
the complaint regardless of whether or
not the plainti/ is entitled to the claims
asserted therein.
DOCTRINE OF PRIMARY ,URISDICTION
!ourts will not resolve a controversy involving a
-uestion which is within the +urisdiction of an
administrative tribunal, especially where the
-uestion demands the e'ercise of sound
administrative discretion re-uiring the special
2nowledge, e'perience and services of the
administrative tribunal to determine technical
and intricate matters of fact.
&he ob+ective is to guide a court in determining
whether it should refrain from e'ercising its
+urisdiction until after an administrative agency
has determined some -uestion or some aspect of
some -uestion arising in the proceeding before
the court.
DOCTRINE OF AD%ERENCE OF
,URISDICTION > CONTINUITY OF
,URISDICTION
Ance a court has ac-uired +urisdiction, that
+urisdiction continues until the court has done all
that it can do in the e'ercise of that +urisdiction.
&his principle also means that once +urisdiction
has attached, it cannot be ousted by subse-uent
happenings or events and retains that +urisdiction
until it fnally disposes of the case.
9ven the fnality of the +udgment does not totally
deprive the court of +urisdiction over the case.
0hat the court loses is the power to amend,
modify or alter the +udgment. 9ven after the
+udgment has become fnal, the court retains
+urisdiction to enforce and e'ecute it.
OB,ECTION TO ,URISDICTION OVER T%E
SUB,ECT MATTER
0hen it appears from the pleadings or evidence
on record that the court has no +urisdiction over
the sub+ect matter, the court shall dismiss the
same. (Sec. %, ,ule E). &he court may on its A0<
<&A&V9 ob+ect to an erroneous +urisdiction and
may e# $ero $otu ta2e cogni6ance of lac2 of
+urisdiction at any point in the case and has a
clearly recogni6ed right to determine its own
+urisdiction.
:urisdiction over the sub+ect matter may be raised
at any stage of the proceedings, even for the frst
time on appeal. 0hen the court dismisses the
complaint for lac2 of +urisdiction over the sub+ect
matter, it is common reason that the court cannot
remand the case to another court with the proper
+urisdiction. ts only power is to dismiss and not to
ma2e any other order.
EFFECT OF ESTOPPEL ON OB,ECTION TO
,URISDICTION
&he active participation of a party in a case is
tantamount to recognition of that court@s
+urisdiction and will bar a party from impugning
the court@s +urisdiction. &he general rule remains"
19
a court@s lac2 of +urisdiction may be raised at any
stage of the proceedings even on appeal. &he
Sibonghanoy applies only to e'ceptional
circumstances.
D21'-"(e 28 es'299els &5 l#17es (in re"tion to
o%&ections to &uris'iction) 1 the S! barred a
belated ob+ection to +urisdiction that was raised
only after an adverse decision was rendered by
the court against the party raising the issue of
+urisdiction and after see2ing a5rmative relief
from the court and after participating in all stages
of the proceedings.
&he S! frowns upon the undesirable practice of
submitting one@s case for decision, and then
accepting the +udgment only if favorable, but
attac2ing it for lac2 of +urisdiction if it is not.
,URISDICTION OVER T%E ISSUES
t is the power of the court to try and decide
issues raised in the pleadings of the parties.
An issue is a disputed point or -uestion to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision. 0here there is
no disputed point, there is no issue.
Benerally, +urisdiction over the issues is conferred
and determined by the pleadings of the parties.
&he pleadings present the issues to be tried and
determine whether or not the issues are of fact or
law.
a) may also be determined and conferred by
stipulation of the parties as when in the
pre.trial, the parties enter into stipulations
of facts and documents or enter into
agreement simplifying the issues of the
case.
b) may also be conferred by waiver or failure
to ob+ect to the presentation of evidence
on a matter not raised in the pleadings.
4ere the parties try with their e'press or
implied consent or issues not raised by the
pleadings. &he issues tried shall be treated
in all respects as if they had been raised in
the pleadings.
,URISDICTION OVER T%E RES OR PROPERTY
IN LITIGATION
:urisdiction over the res refers to the court@s
+urisdiction over the thing or the property which is
the sub+ect of the action.
:urisdiction over the res may be ac-uired by the
court
%) by placing the property or thing under its
custody (custodia legis) (the sei6ure of the
thing under legal process whereby it is
brought into actual custody of law).
9'ample" attachment of property.
() through statutory authority conferring
upon it the power to deal with the
property or thing within the court@s
territorial +urisdiction (institution of a legal
proceeding wherein the power of the court
over the thing is recogni6ed and made
e/ective). 9'ample" suits involving the
status of the parties or suits involving the
property in the 3hilippines of non.resident
defendants.
,URISDICTION OF T%E SUPREME COURT
CRIMINAL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
3etitions for certior"ri, !rohi%ition "n'
$"n'"$us against !A and Sandiganbayan
CONCURRENT ,URISDICTION
a) 0ith the !A and ,&!" petitions for
certior"ri, !rohi%ition "n' $"n'"$us
against the ;&!
b) 0ith the !A" petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the
,&!
c) with Sandiganbayan" petitions for
mandamus, prohibition, certiorari,
habeas corpus, in+unction and ancillary
writs in aid of its appellate +urisdiction
and over petitions of similar nature,
including -uo warranto arising or that
may arise in cases fled or which may
be fled.
APPELLATE ,URISDICTION
a) from the ,&! in all criminal cases
involving o/enses for which the
penalty is reclusion perpetua or life
imprisonment, and those involving
other o/enses which, although not so
punished, arose out of the same
occurrence or which may have been
committed by the accused on the
same occasion#
b) Automatic review where death penalty
is imposed.
c) $y petition for review on !ertiorari
from the !A, Sandiganbayan and from
the ,&! where only error or -uestion of
law is involved
20
<ote" n 33 vs. ;ateo ((FF*), the S! held that
while the =undamental Gaw re-uires a
mandatory review by the S! of cases where
the penalty imposed is recusion !er!etu", life
imprisonment or death, nowhere however,
has it proscribed an intermediate review. f
only to ensure utmost circumspection before
the penalty of recusion !er!etu", life
imprisonment or death is imposed, the !ourt
now deems it wise and compelling to provide
in these cases a review by the !A before the
case is elevated to the S!. A prior
determination by the !A on, particularly, the
factual issues, would minimi6e the possibility
of an error of +udgment. f the !A should
a5rm the penalty of recusion !er!etu" , life
imprisonment or death, it could then render
+udgment imposing the corresponding penalty
as the circumstances so warrant, refrain from
entering +udgment and elevate the entire
records of the case to the S! for fnal
disposition.
CIVIL CASES
EXCLUSIVE ORIGINAL ,URISDICTION in
petitions for certiorari, prohibition and mandamus
against the !A, !A;9G9!, !AA, !&A,
Sandiganbayan
CONCURRENT ,URISDICTION
%) 0ith !ourt of Appeals in petitions for
certior"ri, !rohi%ition "n' $"n'"$us against
the ,&!, !S!, !entral $oard of Assessment
Appeals, <G,!, Huasi.+udicial agencies, and
writ of 2ali2asan, all sub+ect to the doctrine of
hierarchy of courts.
() 0ith the !A and ,&! in petitions for certior"ri,
!rohi%ition "n' $"n'"$us against lower
courts and bodies and in petitions for (uo
)"rr"nto, "n' )rits of h"%e"s cor!us, all
sub+ect to the doctrine of hierarchy of courts.
)) 0ith !A, ,&! and Sandiganbayan for petitions
for )rits of "$!"ro "n' h"%e"s '"t"
*) !oncurrent original +urisdiction with the ,&! in
cases a/ecting "$%"ss"'ors, !u%ic $inisters
"n' consus.
APPELLATE ,URISDICTION
%) by way of 9e'"'"2( 82- -e)"e$ 2(
1e-'"2-#-" (appeal by certiorari under
,ule *5) against !A, Sandiganbayan,
,&! on pure -uestions of law and !&A
in its decisions rendered en banc.
() in cases involving the constitutionality
or validity of a law or treaty,
international or e'ecutive agreement,
law, presidential decree, proclamation,
order, instruction, ordinance or
regulation, legality of a ta', impost,
assessment, toll or penalty, +urisdiction
of a lower court# and
)) all cases in which the +urisdiction of
any court is in issue#
*) all cases in which an error or -uestion
of law is involved
E?1e9'"2(s in which factual issues may be
resolved by the Supreme !ourt"
a) 0hen the fndings are grounded entirely
on speculation, surmises or con+ectures#
b) 0hen the inference made is manifestly
mista2en, absurd or impossible#
c) 0hen there is grave abuse of discretion#
d) 0hen the +udgment is based on
misapprehension of facts#
e) 0hen the fndings of facts are conIicting#
f) 0hen in ma2ing its fndings the !A went
beyond the issues of the case, or its
fndings are contrary to the admissions of
both the appellant and the appellee#
g) 0hen the fndings are contrary to the trial
court#
h) 0hen the fndings are conclusions without
citation of specifc evidence on which they
are based#
i) 0hen the facts set forth in the petition as
well as in the petitionerDs main and reply
briefs are not disputed by the respondent#
+) 0hen the fndings of fact are premised on
the supposed absence of evidence and
contradicted by the evidence on record#
and
2) 0hen the !ourt of Appeals manifestly
overloo2ed certain relevant facts not
disputed by the parties, which, if properly
considered, could +ustify a di/erent
conclusion.
,URISDICTION OF T%E COURT OF APPEALS
.@A ,us'"1es0
CRIMINAL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
a) Actions for annulment of +udgment of the
,&!s
b) !rimes of &errorism under 4uman Security
Act of (FFJ
CONCURRENT ORIGINAL ,URISDICTION
a) 0ith the S!" petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the ,&!
b) 0ith the S! and ,&!" petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the ;&!
21
APPELLATE ,URISDICTION
N2'"1e 28 A99e#lB
a) =rom the ,&! in the e'ercise of its
original +urisdiction, e'cept those
appealable to the Sandiganbayan
b) =rom the ,&! where penalty imposed is
recusion !er!etu" or life
imprisonment or where a lesser
penalty is imposed but for o/enses
committed on the same occasion or
which arose out of the same
occurrence that gave rise to the more
serious o/ense for which the penalty
of death, reclusion perpetua or life
imprisonment is imposed (Sec. 3, *ue
122 "s "$en'e' %+ A, -o. ../5/.3/
SC).
Au'2#'"1 Re)"e$ (i.e. no notice of appeal
is necessary) from the ,&! in cases wherein
the death penalty is imposed.
Pe'"'"2( 82- Re)"e$ from the ,&! in cases
appealed thereto from the lower courts and
not appealable to the Sandiganbayan.
CIVIL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
in actions for the annulment of the +udgments
of the ,&!.
CONCURRENT ORIGINAL ,URISDICTION
%) 0ith S! to issue writs of certiorari,
prohibition and mandamus against the
,&!, !S!, !$AA, other -uasi.+udicial
agencies mentioned in ,ule *), and the
<G,! (however, this should be fled frst
with the !A as per St. ;artin =uneral
4ome case), and writ of 2ali2asan.
() 0ith the S! and ,&! to issue writs of
certiorari, prohibition and mandamus
(!3;) against lower courts and bodies and
writs of -uo warranto, habeas corpus,
whether or not in aid of its appellate
+urisdiction, and writ of continuing
mandamus on environmental cases.
)) 0ith S!, ,&! and Sandiganbayan for
petitions for writs of amparo and habeas
data where the action involves public
data or government o5ce
EXCLUSIVE APPELLATE ,URISDICTION
%) by way of ordinary appeal from the ,&!
and the =amily !ourts.
() by way of petition for review from the ,&!
rendered by the ,&! in the e'ercise of its
appellate +urisdiction.
)) by way of petition for review from the
decisions, resolutions, orders or awards of
the !S!, !$AA and other bodies
mentioned in ,ule *) and of the A5ce of
the Ambudsman in administrative
disciplinary cases.
*) over decisions of ;&!s in cadastral or land
registration cases pursuant to its
delegated +urisdiction# this is because
decisions of ;&!s in these cases are
appealable in the same manner as
decisions of ,&!s.
-ote0 1here is no "ction to "nnu the
'ecision of the CA.
,URISDICTION OF T%E COURT OF TAX
APPEALS .UNDER RA A2C2 AND RULE 6/ AM
06
11 07CTA0
EXCLUSIVE ORIGINAL OR APPELLATE
,URISDICTION TO REVIEW BY APPEAL
%) ?ecisions of !, in cases involving disputed
assessments, refunds of internal revenue
ta'es, fees or other charges, penalties in
relation thereto, or other matters arising
under the <,! or other laws administered by
$,#
() naction by !, in cases involving disputed
assessments, refunds of , ta'es, fees or
other charges, penalties in relation thereto, or
other matters arising under the <,! or other
laws administered by $,, where the <,! or
other applicable law provides a specifc period
of action, in which case the inaction shall be
deemed an implied denial#
)) ?ecisions, orders or resolutions of the ,&!s in
local ta'es originally decided or resolved by
them in the e'ercise of their original or
appellate +urisdiction#
*) ?ecisions of the !ommissioner of !ustoms
a. in cases involving liability for customs
duties, fees or other charges, sei6ure,
detention or release of property
a/ected, fnes, forfeitures or other
penalties in relation thereto, or
b. other matters arising under the
!ustoms law or other laws, part of laws
or special laws administered by $A!#
5) ?ecisions of the !entral $oard of Assessment
Appeals in the e'ercise of its appellate
+urisdiction over cases involving the
assessment and ta'ation of real property
22
originally decided by the provincial or city
board of assessment appeals#
8) ?ecision of the secretary of =inance on
customs cases elevated to him automatically
for review from decisions of the !ommissioner
of !ustoms which are adverse to the
government under Sec. ()%5 of the &ari/ and
!ustoms !ode#
J) ?ecisions of Secretary of &rade and ndustry in
the case of non.agricultural product,
commodity or article, and the Secretary of
Agriculture in the case of agricultural product,
commodity or article, involving dumping
duties and counterveiling duties under Secs.
)F% and )F(, respectively, of the &ari/ and
!ustoms !ode, and safeguard measures
under ,A KKFF, where either party may
appeal the decision to impose or not to
impose said duties.
EXCLUSIVE ORIGINAL ,URISDICTION
%) Aver all criminal cases arising from violation
of the <,! and the &!! and other laws, part
of laws, or special laws administered by the
$, or the $A! where the principal amount of
ta'es and fees, e'clusive of charges and
penalties claimed is less than 3%; or where
there is no specifed amount claimed (the
o/enses or penalties shall be tried by the
regular courts and the +urisdiction of the !&A
shall be appellate)#
() n ta' collection cases involving fnal and
e'ecutory assessments for ta'es, fees,
charges and penalties where the principal
amount of ta'es and fees, e'clusive of
charges and penalties claimed is less than
3%; tried by the proper ;&!, ;e&! and ,&!.
EXCLUSIVE APPELLATE ,URISDICTION
10 I( 1-""(#l 2De(ses
a) over appeals from the +udgment,
resolutions or orders of the ,&! in ta'
cases originally decided by them, in their
respective territorial +urisdiction, and
b) over petitions for review of the +udgments,
resolutions or orders of the ,&! in the
e'ercise of their appellate +urisdiction over
ta' cases originally decided by the ;e&!s,
;&!s, and ;!&!s in their respective
+urisdiction.
20 I( '#? 12lle1'"2( 1#ses
a) over appeals from the +udgments,
resolutions or orders of the ,&! in ta'
collection cases originally decided by
them in their respective territorial
+urisdiction# and
b) over petitions for review of the +udgments,
resolutions or orders of the ,&! in the
e'ercise of their appellate +urisdiction over
ta' collection cases originally decided by
the ;e&!s, ;&!s and ;!&!s in their
respective +urisdiction.
,URISDICTION OF T%E SANDIGANBAYAN
ORIGINAL ,URISDICTION in all cases involving
%) Violations of ,A )F%E (Anti.Braft and !orrupt
3ractices Act)
() Violations of ,A %)JE (Anti.ll.Botten 0ealth
Act)
)) Se-uestration cases (9.A. <os. %,(,%*,%*.A)
*) $ribery (!hapter , Sec. (, &itle V, $oo2 ,
,3!) where one or more of the principal
accused are occupying the following positions
in the government, whether in permanent,
acting or interim capacity at the time of the
commission of the o/ense"
a) A5cials of the e'ecutive branch
occupying the positions of regional
director and higher, otherwise classifed as
Brade (J and higher, of the !ompensation
and 3osition !lassifcation Act of %EKE (,A
8J5K)
b) ;embers of !ongress and o5cials thereof
classifed as B.(J and up under ,A 8J5K
c) ;embers of the :udiciary without pre+udice
to the provisions of the !onstitution
d) !hairmen and ;embers of the
!onstitutional !ommissions without
pre+udice to the provisions of the
!onstitution
e) All other national and local o5cials
classifed as Brade (J and higher under
,A 8J5K
f) Ather o/enses or felonies committed by
the public o5cials and employees
mentioned in Sec. *(a) of ,A JEJ5 as
amended by ,A K(*E in relation to their
o5ce
g) !ivil and criminal cases fled pursuant to
and in connection with 9A <os. %, (, %*.A
(Sec. *, ,A K(*E)
<ote" 0ithout the o5ce, the crime cannot be
committed.
APPELLATE ,URISDICTION . from the ,&! in
cases under 3? %8F8, as amended by 3? %K8%,
whether or not the cases were decided b them in
the e'ercise of their original or appellate
+urisdictions.
23
CONCURRENT ORIGINAL ,URISDICTION WIT%
SC/ CA AND RTC for petitions for writs of habeas
data and amparo
&he re-uisites that the o/ender the o/ender
occupies salary Brade (J and the o/ense
must be intimately connected with the o5cial
function must concur for the S$ to have
+urisdiction 7 2ustice ,"3'"n3" 4e 5eon
,URISDICTION OF T%E REGIONAL TRIAL
COURTS
CRIMINAL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
%) A/enses punishable with imprisonment which
e'ceeds 8 years imprisonment
() A/enses not within the e'clusive +urisdiction
of any court, tribunal or body, e'cept those
falling under the e'clusive +urisdiction of the
Sandiganbayan
<ote" n cases where the only penalty is
fne, the amount thereof shall determine
+urisdiction. f the amount e'ceeds 3*,FFF,
the ,&! has +urisdiction.
)) =amily !ourt 7 !riminal !ases
a) Ane or more of the accused isLare
below %K years old but not less than
E years old#
b) 0here one of the victims is a minor at
the time of the commission of the
o/ense#
c) !ases against minors cogni6able under
the ?angerous ?rugs Act#
d) Violations of ,A J8%F, otherwise 2nown
as the MSpecial 3rotection of !hildren
Against !hild Abuse, 9'ploitation and
?iscrimination ActN as amended by ,A
J85K# and
e) !ases of domestic violation against
women and their children.
APPELLATE ,URISDICTION
All cases decided by the ;&! in their
respective territorial +urisdiction.
CIVIL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
%) &he action is "(1#9#&le 28 9e1u("#-5
es'"#'"2( (such "s rescission of contr"ct,
"ction to re6i6e &u'3$ent, 'ec"r"tor+ reief
(1
st
!"rt), su!!ort, e#!ro!ri"tion)
() T"'le '2/ 92ssess"2( 28/ 2- "('e-es' "(/
-e#l 9-29e-'5 with assessed value e'ceeding
P20/000 outside ;etro ;anila, or e'ceeds
P60/000 in ;etro ;anila
)) f the amount involved e'ceeds P300/000
outside ;; or e'ceeds P400/000 in ;; in
the following cases"
a) Admiralty and maritime cases
b) ;atters of 3robate (testate and
intestate)
c) Ather actions involving personal
property
d) ?emand for money
*) !ases not falling within the +urisdiction of any
court, tribunal, person or body e'ercising
+udicial or -uasi.+udicial functions (:e(e-#l
;u-"s!"1'"2( 28 RTC)
5) All #1'"2(s "()2l)"(: '7e 12('-#1' 28
#--"#:e #(! 8#"l5 -el#'"2(s
,URISDICTION OF FAMILY COURTS .RA
C3@A0
a) 3etitions for guardianship, custody of
children and habeas corpus involving
children
b) 3etitions for adoption of children and the
revocation thereof
c) !omplaints for annulment of marriage,
declaration of nullity of marriage and
those relating to status and property
relations of husband and wife or those
living together under di/erent status and
agreements, and petitions for dissolution
of con+ugal partnership of gains
d) 3etitions for support andLor
ac2nowledgment
e) Summary +udicial proceedings brought
under the provisions of 9A (FE (=amily
!ode)
f) 3etitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children,
the suspension, termination or restoration
of parental authority and other cases
cogni6able under 3? 8F), 9A 58 (%EK8)
and other related laws
g) 3etitions for the constitution of the family
home
n areas where there are no =amily
!ourts, the above.enumerated
cases shall be ad+udicated by the
,&! (,A K)8E)
24
8) &o hear and decide "('-#*12-92-#'e
12('-2)e-s"es Sec. 5(, Securities and
,egulations !ode)"
a) !ases involving devises or schemes
employed by or any acts, of the board of
directors, business associates, its o5cers
or partnership, amounting to fraud and
misrepresentation which may be
detrimental to the interest of the public
andLor of the stoc2holders, partners,
members of associations or organi6ations
registered with the S9!
b) !ontroversies arising out of intra.
corporate or partnership relations,
between and among stoc2holders,
members or associates# between any or all
of them and the corporation, partnership
or association of which they are
stoc2holders, members or associates,
respectively# and between such
corporation , partnership or association
and the state insofar as it concerns their
individual franchise or right to e'ist as
such entity
c) !ontroversies in the election or
appointments of directors, trustees,
o5cers or managers of such corporations,
partnerships or associations
d) 3etitions of corporations, partnerships or
associations to be declared in the state of
suspension of payments in cases where
the corporation, partnership of association
possesses su5cient property to cover all
its debts but foresees the impossibility of
meeting them when they respectively fall
due or in cases where the corporation,
partnership of association has no su5cient
assets to cover its liabilities, but is under
the management of a ,ehabilitation
,eceiver or ;anagement !ommittee.
CONCURRENT ,URISDICTION
%) with the Supreme !ourt in actions
a/ecting ambassadors, other public
ministers and consuls
() with the S! and !A in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in
petitions for -uo warranto, habeas corpus,
and writ of continuing mandamus on
environmental cases
)) with the S!, !A and Sandigabayan in
petitions for writs of habeas data and
amparo
*) 0ith nsurance !ommissioner 7 claims not
e'ceeding 3%FF,FFF
APPELLATE ,URISDICTION over cases decided
by lower courts in their respective territorial
+urisdictions e#ce!t 'ecisions of o)er courts in
the e#ercise of 'ee3"te' &uris'iction.
SPECIAL ,URISDICTION 7 S! may designate
certain branches of ,&! to try e'clusively criminal
cases, +uvenile and domestic relations cases,
agrarian cases, urban land reform cases not
falling within the +urisdiction of any -uasi.+udicial
body and other special cases in the interest of
+ustice.
,URISDICTION OF METROPOLITAN TRIAL
COURTS>MUNICIPAL TRIAL COURTS
CRIMINAL CASES
EXCLUSIVE ORIGINAL ,URISDICTION
%) !ases covered by Summary proceedings
a) Violations of city or municipal ordinances
including tra5c laws
b) Violation of rental law
c) Violation of tra5c laws, rules and
regulations
d) Violation of $3 (( ($ouncing !hec2 Gaw)
e/ective April %5, (FF)
e) All other criminal cases where the penalty
is imprisonment not e'ceeding 8 months
andLor 3%FF,FFF fne irrespective of other
penalties arising therefrom
() o/enses punishable with imprisonment not
e'ceeding si' (8) years irrespective of the
amount of fne, and regardless of other
imposable accessory or other penalties,
including the civil liability arising from such
o/enses or predicated thereon, irrespective of
the 2ind, nature, value or amount thereof#
provided however, that in o/enses involving
damage to property through criminal
negligence, they shall have e'clusive original
+urisdiction thereof (Sec. (, ,A J8E%).
)) A/enses involving ?A;AB9 &A 3,A39,&O
through !,;<AG <9BGB9<!9 where the
imposable fne is not e'ceeding 3%F,FFF
<ote" n cases where the only penalty
is fne, the amount thereof shall
determine +urisdiction. f the amount
does not e'ceed 3*,FFF, the ;&! has
+urisdiction.
*) All o/enses (e'cept violations of ,A )F%E, ,A
%)JE and Arts. (%F to (%(, ,3!) committed
by public o5cers and employees in relation to
their o5ce, including those employed in
25
BA!!s, and by private individuals charged as
co.principals, accomplices or accessories,
punishable with imprisonment of not more
than 8 years A, where none of the accused
holds a position of salary Brade (J and
higher.
CIVIL ACTIONS
EXCLUSIVE ORIGINAL ,URISDICTION
%) f the amount involved does not e'ceed
P300/000 outside ;; or does not e'ceed
P400/000 in ;; in the following cases"
a) Actions involving personal property
b) 3robate 3roceeding (testate and
intestate) based on gross value of the
estate
c) Admiralty and maritime cases
d) ?emand for money
-ote0 ?o not include nterest,
?amages of whatever 2ind, Attorney@s
fees, Gitigation 9'penses, and !osts
(?AG9!). 4owever, in cases where the
claim or damages is the main cause of
action, or one of the causes of action,
the amount of such claim shall be
considered in determining the
+urisdiction of the court.
() Actions involving title to, or possession of, real
property, or any interest therein where the
assessed value of the property or interest
therein does not e'ceed P20/000 outside ;;
or does not e'ceed P60/000 in ;;
)) nclusion and e'clusion of voters
*) &hose governed by the Rules 2( Su#-5
P-21e!u-e
a) =orcible entry and unlawful detainer
(=9>?)
0ith +urisdiction to resolve issue of
ownership to determine A<GO issue
of possession (!ro6ision" on+)
rrespective of the amount of
damages or unpaid rentals sought
to be recover
0here attorney@s fees are awarded,
the same shall not e'ceed 3(F,FFF
b) Ather civil cases, e'cept probate
proceeding, where the total amount of the
plainti/@s claim does not e'ceed 3(FF,FFF
in ;;, e'clusive of interests and costs.
SPECIAL ,URISDICTION over petition for writ of
habeas corpus A, application for bail in criminal
cases in the absence of all ,&! +udges in the
province or city
DELEGATED ,URISDICTION to hear and decide
cadastral and land registration cases where there
is no contro6ers+ over the land or in case of
contested lands, the value does not e'ceed 3%FF,
FFF 1 "!!e""%e to the CA
1
s'
le)el 12u-'sB
a. ;etropolitan &rial !ourt 7 ;etro ;anila#
b. ;unicipal &rial !ourts in !ities 7 situated in
cities
c. ;unicipal !ircuit &rial !ourt 7 composed of
multi.sala
d. ;unicipal &rial !ourts 7 in one municipality
S%AREIA% COURTS
EXCLUSIVE ,URISDICTION
%) All cases involving custody, guardianship,
legitimacy, paternity and fliation arising
under the !ode of ;uslim 3ersonal Gaws#
() All cases involving disposition, distribution
and settlement of estate of deceased
;uslims, probate of wills, issuance of
letters of administration of appointment
administrators or e'ecutors regardless of
the nature or aggregate value of the
property#
)) 3etitions for the declaration of absence
and death for the cancellation and
correction of entries in the ;uslim
,egistries#
*) All actions arising from the customary
contracts in which the parties are ;uslims,
if they have not specifed which law shall
govern their relations# and
5) All petitions for mandamus, prohibition,
in+unction, certiorari, habeas corpus and
all other au'iliary writs and processes in
aid of its appellate +urisdiction
CONCURRENT ,URISDICTION
%) 3etitions of ;uslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum
() All other personal and legal actions not
mentioned in par % (d) wherein the parties
involved are ;uslims e'cept those for
forcible entry and unlawful detainer, which
shall fall under the e'clusive +urisdiction of
the ;&!.
)) All special civil actions for interpleader or
declaratory relief wherein the parties are
;uslims or the property involved belongs
e'clusively to ;uslims
!ases that can be fles"
%) A/enses defned and punished under 3?
%FK)
26
() ?isputes relating to"
a. ;arriage
b. ?ivorce
c. $etrothal or breach of contract to
marry
d. !ustomary dowry (mahr)
e. ?isposition and distribution of
property upon divorce
f. ;aintenance and support and
consolatory gifts (mut@a)
g. ,estitution of marital rights
)) ?isputes relative to communal properties
,URISDICTION OVER SMALL CLAIMS
%) ;&!s, ;e&!s and ;!&!s shall have
+urisdiction over actions for payment of
money where the value of the claim does not
e'ceed P100/000 e'clusive of interest and
costs (Sec. (, A; FK.K.J.S!, Act. (J, (FFE).
() Actions covered are
a) purely civil in nature where the claim or
relief prayed for by the plainti/ is solely
for payment or reimbursement of sum of
money, and
b) the civil aspect of criminal actions, either
fled before the institution of the criminal
action, or reserved upon the fling of the
criminal action in court, pursuant to ,ule
%%% (Sec. *, A; FK.K.J.S!).
&hese claims may be"
a) =or money owed under the contracts of
lease, loan, services, sale, or mortgage#
b) =or damages arising from fault or
negligence, -uasi.contract, or contract#
and
c) &he enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim pursuant to Sec.
*%J of ,A J%8F (GB!).
CASES COVERED BY RULES ON SUMMARY
PROCEDURE .SEC= 1 RSP0
CIVIL CASES
%) All cases of forcible entry and unlawful
detainer (=9>?), irres!ecti6e of the "$ount of
'"$"3es or un!"i' rent"s sought to be
recovered. 0here attorneyDs fees are
awarded, the same shall not e'ceed 3(F,FFF#
() All other cases, e#ce!t !ro%"te !rocee'in3s
)here the tot" "$ount of the !"inti78s c"i$
'oes not e#cee' P100,000 (outsi'e ,,) or
P200,000 (in ,,), e#cusi6e of interest "n'
costs.
CRIMINAL CASES
%) Violations of tra5c law, rules and regulations#
() Violation of the rental law#
)) All other criminal cases where the penalty
prescribed is imprisonment not e'ceeding si'
(8) months, or fne not e'ceeding 3%,FFF, or
both, irrespective of other imposable
penalties, accessory or otherwise, or of the
civil liability arising therefrom, provided, that
in o/enses involving damage to property
through criminal negligence, ,S3 shall govern
where the imposable fne does not e'ceed
3%F,FFF.
,S3 does not apply to a civil case where
the plainti/Ds cause of action is pleaded in
the same complaint with another cause of
action sub+ect to the ordinary procedure#
nor to a criminal case where the o/ense
charged is necessarily related to another
criminal case sub+ect to the ordinary
procedure.
CASES COVERED BY T%E RULES ON
BARANGAY CONCILIATION
&he Gupon of each barangay shall have the
authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes e'cept"
%) 0here one party is the government or any
subdivision or instrumentality thereof
() 0here one party is a public o5cer or
employee, and the dispute relates to the
performance of his o5cial functions
)) A/enses punishable by imprisonment
e'ceeding one (%) year or a fne e'ceeding
35,FFF
*) A/enses where there is no private
o/ended party
5) 0here the dispute involves real properties
located in di/erent cities or municipalities
unless the parties thereto agree to submit
their di/erences to amicable settlement
by an appropriate lupon
8) ?isputes involving parties who actually
reside in barangays of di/erent cities or
municipalities, e'cept where such
barangay units ad+oin each other and the
parties thereto agree to submit their
di/erences to amicable settlement by an
appropriate lupon
J) Such other classes of disputes which the
3resident may determine in the interest of
27
+ustice or upon the recommendation of the
Secretary of :ustice
K) Any complaint by or against corporations,
partnerships, or +uridical entities. &he
reason is that only individuals shall be
parties to barangay conciliation
proceedings either as complainants or
respondents
E) ?isputes where urgent legal action is
necessary to prevent in+ustice from being
committed or further continued,
specifcally"
a) A criminal case where the accused
is under police custody or
detention
b) A petition for habeas corpus by a
person illegally detained or
deprived of his liberty or one acting
in his behalf
c) Actions coupled with provisional
remedies, such as preliminary
in+unction, attachment, replevin
and su!!ort !en'ente ite
d) 0here the action may be barred by
statute of limitation
%F) Gabor disputes or controversies arising
from employer.employee relationship
%%) 0here the dispute arises from the !A,G
%() Actions to annul +udgment upon a
compromise which can be directly fled in
court.
t is a condition precedent under ,ule %8#
can be dismissed but without pre+udice
TOTALITY RULE
0here there are several claims or causes of
actions between the same or di/erent parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the
claims in all the claims of action, irrespective
of whether the causes of action arose out of the
same or di/erent transactions (Sec. ))P%Q, $3
%(E).
CIVIL PROCEDURE
ACTIONS
Action (synonymous with suit) is the legal and
formal demand of one@s right from another
person made and insisted upon in a court of
+ustice. &he 2inds of actions are ordinary and
special, civil and criminal, e' contractu and e'
delicto, penal and remedial, real, personal, and
mi'ed action, action in personam, in rem, and
-uasi in rem.
ORDINARY CIVIL ACTIONS/ SPECIAL CIVIL
ACTIONS/ CRIMINAL ACTIONS
O-!"(#-5 1")"l #1'"2( is one by which one party
sues another, based on a cause of action, to
enforce or protect a right, or to prevent or redress
a wrong, whereby the defendant has performed
an act or omitted to do an act in violation of the
rights of the plainti/. (Sec. )a) &he purpose is
primarily compensatory.
S9e1"#l 1")"l #1'"2( 7 actions which while
governed by the rules for ordinary civil actions,
are sub+ect to special rules provided for Special
!ivil Actions
C-""(#l #1'"2( is one by which the State
prosecutes a person for an act or omission
punishable by law (Sec. )PbQ, ,ule %). &he
purpose is primarily punishment.
CIVIL ACTIONS VERSUS SPECIAL
PROCEEDINGS
&he purpose of an action is either to protect a
right or prevent or redress a wrong. &he purpose
of special proceeding is to establish a status, a
right or a particular fact.
PERSONAL ACTIONS AND REAL ACTIONS
An action is ,9AG when it a/ects title to or
possession of real property, or an interest therein.
All other actions are personal actions.
An action is real when it is founded upon the
privity of real estate, which means that the realty
or an interest therein is the sub+ect matter of the
action. &he issues involved in real actions are title
to, ownership, possession, partition, foreclosure
of mortgage or condemnation of real property.
<ot every action involving real property is a real
action because the realty may only be incidental
to the sub+ect matter of the suit. 9'ample is an
action for damages to real property, because
although it involves real property, it does not
involve any of the issues mentioned.
,eal actions are based on the privity of real
estates# while personal actions are based on
privity of contracts or for the recovery of sums of
money.
28
&he distinction between real action and personal
action is important for the purpose of determining
the venue of the action. A real action is MGA!AGN,
which means that its venue depends upon the
location of the property involved in the litigation.
A personal action is M&,A<S&A,ON, which means
that its venue depends upon the residence of the
plainti/ or the defendant at the option of the
plainti/.
LOCAL AND TRANSITORY ACTIONS
A l21#l #1'"2( is one founded on privity of
estates only and there is no privity of contracts. A
real action is a local action# its venue depends
upon the location of the property involved in
litigation. MActions a/ecting title to or possession
of real property, or interest therein, shall be
commenced and tried in the proper court which
has +urisdiction over the area wherein the real
property involved, or a portion thereof is
situatedN (Sec. 1, *ue 9).
T-#(s"'2-5 #1'"2( is one founded on privity of
contracts between the parties. A personal action
is transitory, its venue depends upon the
residence of the plainti/ or the defendant at the
option of the plainti/. A personal action Mmay be
commenced and tried where the plainti/ or any
of the principal plainti/s resides or where the
defendant or any of the principal defendants
resides, or in the case of non.resident defendant,
where he may be found, at the election of the
plainti/N. (Sec. 2, *ue 9).
A1'"2(s "( -e/ "( 9e-s2(# #(! Fu#s" "(
-e (this is i$!ort"nt in ser6ice of su$$ons)
An #1'"2( "( -e, one instituted and
enforced against the whole world.
An #1'"2( "( 9e-s2(# is one fled against a
defnite defendant. t is intended to sub+ect
the interest of defendant on a property to an
obligation or lien. :urisdiction over the person
(defendant) is re-uired. t is a proceeding to
enforce personal rights and obligations
brought against the person, and is based on
the +urisdiction of the person, although it may
involve his right to, or the e'ercise of
ownership of, specifc property, or see2 to
compel him to control or dispose of it in
accordance with the mandate of the court.
&he purpose is to impose through the
+udgment of a court, some responsibility or
liability directly upon the person of the
defendant. <o other than the defendant is
liable, not the whole world, as in an action for
a sum of money or an action for damages.
An #1'"2( Fu#s" "( -e, also brought against
the whole world, is one brought against
persons see2ing to sub+ect the property of
such persons to the discharge of the claims
assailed. An individual is named as defendant
and the purpose of the proceeding is to
sub+ect his interests therein to the obligation
or loan burdening the property. t deals with
status, ownership or liability or a particular
property but which are intended to operate on
these -uestions only as between the
particular parties to the proceedings and not
to ascertain or cut o/ the rights or interests of
all possible claimants. 9'amples of actions
-uasi in rem are action for partition, action for
accounting, attachment, foreclosure of
mortgage.
An action in personam is not necessarily a
personal action. <or is a real action
necessarily an action in rem. An in personam
or an in rem action is a classifcation of
actions according to foundation. =or instance,
an action to recover, title to or possession of
real property is a real action, but it is an
action in personam, not brought against the
whole world but against the person upon
whom the claim is made.
S! sums up the basic rules in Bi"co 6s. Phii!!ine
Countr+si'e *ur" B"n: (2..;)0
%) &he -uestion of whether the trial court has
+urisdiction depends on the nature of the
action 7 whether the action is in
personam, in rem, or -uasi in rem. &he
rules on service of summons under ,ule
%* li2ewise apply according to the nature
of the action.
() An action in personam is an action against
a person on the basis of his personal
liability. And action in rem is an action
against the thing itself instead of against
the person. An action -uasi in rem is one
wherein an individual is named as
defendant and the purpose of the
proceeding is to sub+ect his interest
therein to the obligation or lien burdening
the property.
)) :urisdiction over the person of the
defendant is necessary for the court to
validly try and decide a case against said
defendant where the action is one in
personam but not where the action is in
rem or -uasi in rem. :urisdiction over the
res is ac-uired either
a. by the sei6ure of the property
under legal process, whereby it is
brought into actual custody of the
law# or
b. as a result of the institution of legal
proceedings, in which the power of
29
the court is recogni6ed and made
e/ective.
<onetheless, summons must be served
upon the defendant not for the purpose of
vesting the court with +urisdiction but
merely for satisfying the due process
re-uirements.
CAUSE OF ACTION .Rule 20
MEANING OF CAUSE OF ACTION
A cause of action is the act or omission by which
a party (defendant) violates the rights of another
(plainti/).
t is the delict or wrong by which the defendant
violates the right or rights of the plainti/.
T7e elee('s #-eB
%) A right in favor of the plainti/ by whatever
means and under whatever law it arises or
is created#
() An obligation on the part of the named
defendant to respect or not to violate such
right# and
)) Act or omission on the part of such
defendant in violation of the right of the
plainti/ or constituting a breach of the
obligation of the defendant to the plainti/
for which the latter may maintain an
action for recovery of damages or other
appropriate relief.
RIG%T OF ACTION VERSUS CAUSE OF
ACTION
a) A cause of action refers to the delict or wrong
committed by the defendants, whereas right
of action refers to the right of the plainti/ to
institute the action#
b) A cause of action is determined by the
pleadings# whereas a right of action is
determined by the substantive law#
a) A right of action may be ta2en away by the
running of the statute of limitations, by
estoppels or other circumstances# which do
not at all a/ect the cause of action#
b) &here is no right of action where there is no
cause of actionR
FAILURE TO STATE CAUSE OF ACTION
&he mere e'istence of a cause of action is not
su5cient for a complaint to prosper. 9ven if in
reality the plainti/ has a cause of action against
the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim
Mstates no cause of actionN. &his means that the
cause of action must unmista2ably be stated or
alleged in the complaint or that all the elements
of the cause of action re-uired by substantive law
must clearly appear from the mere reading of the
complaint.
&o avoid an early dismissal of the complaint, the
simple dictum to be followed is" Mf you have a
cause of action, then by all means, state itRN
0here there is a defect or an insu5ciency in the
statement of the cause of action, a complaint
may be dismissed not because of an absence or a
lac2 of cause of action by because the complaint
states no cause of action. &he dismissal will
therefore, be anchored on a Mfailure to state a
cause of actionN.
t doesnDt mean that the plainti/ has no cause of
action. t only means that the plainti/Ds
allegations are insu5cient for the court to 2now
that the rights of the plainti/ were violated by the
defendant. &hus, even if indeed the plainti/
su/ered in+ury, if the same is not set forth in the
complaint, the pleading will state no cause of
action even if in reality the plainti/ has a cause of
action against the defendant.
TEST OF T%E SUFFICIENCY OF A CAUSE OF
ACTION
&he test is whether or not admitting the facts
alleged, the court could render a valid verdict in
accordance with the prayer of the complaint.
&o be ta2en into account are only the material
allegations in the complaint# e'traneous facts and
circumstances or other matter "iun'e are not
considered but the court may consider in addition
to the complaint the appended anne'es or
documents, other pleadings of the plainti/, or
admissions in the records.
t is error for the court to ta2e cogni6ance of
e'ternal facts or to hold preliminary hearings to
determine its e'istence.
SPLITTING A SINGLE CAUSE OF ACTION
AND ITS EFFECTS
t is the act of instituting two or more suits for the
same cause of action (Sec. 9, *ue 2). t is the
practice of dividing one cause of action into
di/erent parts and ma2ing each part the sub+ect
of a separate complaint.
n splitting a cause of action, the pleader divides
a single cause of action, claim or demand into
30
two or more parts, brings a suit for one of such
parts with the intent to reserve the rest for
another separate. &his practice is <A& AGGA09?
by the ,ules because it breeds multiplicity of
suits, clogs the court doc2ets, leads to ve'atious
litigation, operates as an instrument of
harassment, and generates unnecessary
e'penses to the parties.
&he fling of the frst may be pleaded in
abatement of the other or others and a +udgment
upon the merits in any one is available as a bar
to, or a ground for dismissal of, the others
&he -ee!5 of the defendant is to fle a motion
to dismiss. 4ence, if the frst action is pending
when the second action is fled, the latter may be
dismissed based on itis !en'enci", there is
another action pending between the same parties
for the same cause. f a fnal +udgment had been
rendered in the frst action when the second
action is fled, the latter may be dismissed based
on res &u'ic"t", that the cause of action is barred
by prior +udgment. As to which action should be
dismissed would depend upon +udicial discretion
and the prevailing circumstances of the case.
,OINDER AND MIS,OINDER OF CAUSES OF
ACTIONS .SECS= 6 AND @/ ULE 20
,2"(!e- 28 1#uses 28 #1'"2( is the assertion of
as many causes of action as a party may have
against another in one pleading alone (Sec. 5,
*ue 2). t is the process of uniting two or more
demands or rights of action in one action, sub+ect
to the following conditions"
a) &he party +oining the causes of action shall
comply with the rules on +oinder of parties
(s"$e tr"ns"ction "' co$$on (uestion of
") "n f"ct);
b) &he +oinder shall not include special civil
actions governed by special rules#
c) 0here the cause of action are between
the same parties but pertain to di/erent
venues or +urisdictions, the +oinder may be
allowed in the ,&! provided one of the
causes of action falls within the
+urisdiction of said court and the venue
lies therein# and
d) 0here the claims in all the causes of
action are principally for recovery of
money, the aggregate amount claimed
shall be the test of +urisdiction (totality
rule).
<ote" ,estrictions on +oinder of
causes of action are" +urisdiction,
venue, and +oinder of parties. &he
+oinder shall not include special
civil actions or actions governed by
special rules.
0hen there is a "s;2"(!e- 28 1#uses 28
#1'"2(, the erroneously +oined cause of action
can be severed or separated from the other
cause of action upon motion by a party or upon
the courtDs own initiative. ;is+oinder of causes of
action is not a ground for the dismissal of the
case.
PARTIES IN CIVIL ACTION .Rule 30
REAL PARTY*IN*INTEREST (e.3. !"inti7 "n'
'efen'"nt) is the party who stands to be
benefted or in+ured by the +udgment in the suit,
or the party entitled to the avails of the suit (Sec.
2, *ue 3).
&he interest must be real, which is a present
substantial interest as distinguished from a
mere e'pectancy or a future, contingent
subordinate or conse-uential.
t is an interest that is material and direct, as
distinguished from a mere incidental interest
in.
0hile ordinarily one who is not a privy to a
contract may not bring an action to enforce it,
there are recogni6ed e'ceptions this rule"
a) !ontracts containing sti!u"tions !our
"trui or stipulations e'pressly
conferring benefts to a non.party may
sue under the contract provided such
benefts have been accepted by the
benefciary prior to its revocation by
the contracting parties (Art. 1311, Ci6i
Co'e).
b) &hose who are not principally or
subsidiarily obligated in the contract,
in which they had no intervention, may
show their detriment that could result
from it. =or instance, Art. %)%), !!,
provides that Mcreditors are protected
in cases of contracts intended to
defrauded themN. =urther, Art. %)%K,
!!, provides that contracts entered
into in fraud of creditors may be
rescinded when the creditors cannot in
any manner collect the claims due
them. 1hus, " cre'itor )ho is not "
!"rt+ to " contr"ct c"n sue to rescin'
the contr"ct to re'ress the fr"u'
co$$itte' u!on hi$.
INDISPENSABLE PARTY is a real party.in.
interest without whom no fnal determination can
be had of an action (Sec. ;, *ue 3).
31
0ithout the presence of this party, the
+udgment of a court cannot attain real
+udgement.
&he presence of indispensable parties is a
condition for the e'ercise of +uridical power
and when an indispensable party is not before
the court, the action should be dismissed.
&he absence of indispensable party renders
all subse-uent actions of the court null and
void for want of authority to act, not only to
the absent parties but even as to those
present.
A person is not an 3 if his interest in the
controversy or sub+ect matter is separable
from the interest of the other parties, so that
it will not necessarily be directly or in+uriously
a/ected by a decree which does complete
+ustice between them. Also, a person is not an
3 if his presence would merely permit
complete relief between him and those
already parties to the action, or if he has no
interest in the sub+ect matter of the action.
Although normally a +oinder of action is
permissive (Sec. <, *ue 3), the +oinder of a
party becomes compulsory when the one
involved is an indispensable party. !learly,
the rule directs a compulsory +oinder of IP
(Sec. ;, *ue 3).
NECESSARY PARTY is one who is not
indispensable but ought to be +oined as a party if
complete relief is to be accorded as to those
already parties, of for a complete determination
or settlement of the claim sub+ect of the action.
$ut a necessary party ought to be +oined as a
party if complete relief is to be accorded as to
those already parties (Sec. =, *ue 3).
&he non.inclusion of a necessary party does
not prevent the court from proceeding in the
action, and the +udgment rendered therein
shall be without pre+udice to the rights of such
necessary party (Sec. 9, *ue 3).
INDIGENT PARTY is one who is allowed by the
court to litigate his claim, action or defense upon
e' parte application and hearing, when the court
is satisfed that such party has no money or
property su5cient and available for food, shelter,
basic necessities for himself and his family (Sec.
21, *ue 3).
f one is authori6ed to litigate as an indigent,
such authority shall include an e'emption
from the payment of doc2et fee, and of
transcripts of stenographic notes, which the
court may order to e furnished by him.
4owever, the amount of the doc2et and other
fees, which the indigent was e'empt from
paying, shall be lien on the +udgment
rendered in the case favorable to the indigent.
A lien on the +udgment shall or arise if the
court provides otherwise.
REPRESENTATIVES AS PARTIES pertains to the
parties allowed by the court as substitute parties
to an action whereby the original parties become
incapacitated of incompetent (Sec. 1=, *ue 3).
&he substitution of a party depends on the
nature of the action. f the action is personal,
and a party dies !en'ent ite , such action
does not survive, and such party cannot be
substituted. f the action is real, death of the
defendant survives the action, and the heirs
will substitute the dead. A favorable +udgment
obtained by the plainti/ therein may be
enforced against the estate of the deceased
defendant (Sec. 1, *ue =;).
n case a party becomes incapacitated or
incompetent during the pendency of the
action, the court, upon motion, may allow the
action to be continued by or against the
incapacitated or incompetent party with the
assistance of his legal guardian or guardian
"' ite$ (Sec. 1=, *ue 2.).
n case of transfer, the action may be
continued by or against the original party,
unless the court upon motion directs the
person to whom the interest is transferred to
be substituted in the action or +oined with the
original party (Sec. 19, *ue 3).
An agent may sue or be sued without +oining
his principal e'cept when the contract involve
things belonging to the principal (>here the
"ction is "o)e' to %e !rosecute' "n'
'efen'e' %+ " re!resent"ti6e or so$eone
"ctin3 in " ?'uci"r+ c"!"cit+, the %ene?ci"r+
sh" %e incu'e' in the tite of the c"se "n'
sh" %e 'ee$e' to %e the re" !ro!ert+ in
interest, Sec. 3, *ue 3).
ALTERNATIVE DEFENDANTS are those who
may be +oined as such in the alternative by the
plainti/ who is uncertain from whom among them
he is entitled to a relief, regardless of whether or
not a right to a relief against one is inconsistent
with that against the other (Sec. 13, *ue 3).
0here the plainti/ cannot defnitely identify
who among two or more persons should be
impleaded as a defendant, he may +oin all of
them as defendants in the alternative.
:ust as the rule allows a suit against
defendants in the alternative, the rule also
allows alternative causes of action (Sec. 2,
*ue =) and alternative defenses (Sec. 5[%],
*ue <).
COMPULSORY AND PERMISSIVE ,OINDER
OF PARTIES
32
,2"(!e- 28 9#-'"es "s 129uls2-5 if there are
parties without whom no fnal determination can
be had of an action (Sec. ;, *ue 3).
,2"(!e- 28 9#-'"es "s 9e-"ss")e when there is
a right or relief in favor of or against the parties
+oined in respect to or arising out of the same
transaction or series of transactions, and there is
a -uestion of law or fact common to the parties
+oined in the action (Sec. <, *ue 3).
MIS,OINDER AND NON*,OINDER OF PARTIES
A party is
a. "s;2"(e! when he is made a party to the
action although he should not be
impleaded
b. (2' ;2"(e! when he is supposed to be
+oined but is not impleaded in the action
>nder the rules, neither mis+oinder nor non.
+oinder of parties is a ground for the dismissal of
an action but failure to obey the order of the
court to drop or add a party is a ground for the
dismissal of the complaint (Sec. 3, *ue 1;).
3arties 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 +ust (Sec. 11, *ue 3). ;is+oinder of
parties does not involve -uestions of +urisdiction
and not a ground for dismissal.
CLASS SUIT
A class suit is an action where one or more may
sue for the beneft of all if the re-uisites for said
action are complied with.
A class suit does not re-uire commonality of
interest in the -uestions involved in the suit.
0hat is re-uired by the ,ules is a common or
general interest in the sub+ect matter of the
litigation. &he sub+ect matter of the action means
the physical, the things real or personal, the
money, lands, chattels, and the li2e, in relation to
the suit which is prosecuted and not the direct or
wrong committed by the defendant. t is not also
a common -uestion of law that sustains a class
suit but a common interest in the sub+ect matter
of the controversy.
&here is no class suit when interests are
conIicting. 4ence, for a class suit to prosper, the
following re-uisites must concur"
a) &he sub+ect matter of the controversy
must be of common or general interest to
many persons#
b) &he persons are so numerous that it is
impracticable to +oin all as parties#
c) &he parties actually before the court are
su5ciently numerous and representative
as to fully protect the interests of all
concerned# and
d) &he representatives sue or defend for the
beneft of all (Sec.12, *ue 3).
t shall not be dismissed or compromised without
the approval of the court.
SUITS AGAINST ENTITIES WIT%OUT
,URIDICAL PERSONALITY
A corporation being an entity separate and
distinct from its members has no interest in the
individual property of its members unless
transferred to the corporation. Absent any
showing of interests, a corporation has no
personality to bring an action for the purpose of
recovering the property, which belongs to the
members in their personal capacities.
An entity without +uridical personality may be
sued under a common name by which it is
commonly 2nown when it represents to the
plainti/ under a common name, and the latter
relies on such representation.
3ersons associated in an entity without +uridical
personality maybe sued under the name by which
they are generally or commonly 2nown, but they
cannot sue under such name.
EFFECT OF DEAT% OF PARTY LITIGANT
&he death of the client e'tinguishes the attorney.
client relationship and divests a counsel of his
authority to represent the client. Accordingly, a
dead client has no personality and cannot be
represented by an attorney. <either does he
become the counsel of the heirs of the deceased
unless his services are engaged by said heirs.
0here the claim is not e'tinguished by the death
of the litigant, upon the receipt of the notice of
death, the court shall order the legal
representative or representatives of the deceased
to appear and be substituted for the deceased
within thirty ()F) days from notice (Sec. 1<, *ue
3).
&he substitution of the deceased would not be
ordered by the court in cases where the death of
the party would e'tinguish the action because
substitution is proper only when the action
survives.
33
0here the deceased has no heirs, the court shall
re-uire the appointment of an e'ecutor or
administrator. &his appointment is not re-uired
where the deceased left an heir because the heir
under the new rule, may be allowed to be
substituted for the deceased. f there is an heir
but the heir is a minor, the court may appoint a
guardian "' ite$ for said minor heir (Sec. 13,
*ue 3).
&he court may appoint an e'ecutor or
administrator when"
a) the counsel for the deceased does not
name a legal representative# or
b) there is a representative named but he
failed to appear within the specifed period
(Sec. 1<, *ue 3).
VENUE .Rule 40
Venue is the place or the geographical area
where an action is to be fled and tried. n civil
cases, it relates only to the place of the suit and
not to the +urisdiction of the court.
VENUE VERSUS ,URISDICTION
a) :urisdiction is the authority to hear and
determine a case# venue is the place where
the case is to be heard or tried#
b) :urisdiction is a matter of substantive law#
venue of procedural law#
c) :urisdiction establishes a relation between the
court and the sub+ect matter# venue, a
relation between plainti/ and defendant, or
petitioner and respondent#
d) :urisdiction is f'ed by law and cannot be
conferred by the parties# venue may be
conferred by the act or agreement of the
parties# and
e) Gac2 of +urisdiction over the sub+ect matter is
a ground for a $otu !ro!io dismissal# venue is
not a ground for a motu propio dismissal
e'cept in cases sub+ect to summary
procedure.
VENUE OF REAL ACTIONS
Actions a/ecting title to or possession of real
property, or interest therein, shall be commenced
and tried in the proper court which has
+urisdiction over the area wherein the real
property involved or a portion thereof is situated.
=orcible entry and detainer actions shall be
commenced and tried in the municipal trial court
of the municipality or city wherein the real
property involved, or a portion thereof, is situated
(Sec. 1, *ue 9).
VENUE OF PERSONAL ACTIONS
All other actions may be commenced and tried"
a) where the plainti/ or any of the principal
plainti/s resides, or
b) where the defendant or any of the
principal defendants resides
all at the option of the plainti/
(Sec. 2, *ue 9).
VENUE OF ACTIONS AGAINST NON*
RESIDENTS
f any of the defendants does not reside and is
not found in the 3hilippines, and the action
a/ects the personal status of the plainti/, or any
property of said defendant located in the
3hilippines, the action may be
%) commenced and tried in the court of the
place where the plainti/ resides, or
() where the property or any portion thereof
is situated or found (Sec. 3, *ue 9), or
)) at the place where the defendant may be
found
at the option of the plainti/ (Sec.
2).
W%EN T%E RULES ON VENUE DO NOT
APPLY
&he ,ules do not apply
a) in those cases where a specifc rule or law
provides otherwise (i.e. action for
damages arising from libel)# or
b) where the parties have validly agreed in
writing before the fling of the action on
the e'clusive venue thereof (Sec. *, ,ule
*).
EFFECTS OF STIPULATIONS ON VENUE
&he parties may stipulate on the venue as long as
the agreement is
a) in writing
b) made before the fling of the action, and
c) e'clusive as to the venue (Sec. 9[%], *ue
9).
n interpreting stipulations as to venue, there is a
need to in-uire as to whether or not the
agreement is restrictive or not. f the stipulation is
,9S&,!&V9, the suit may be fled only in the
place agreed upon by the parties. t must be
reiterated and made clear that under ,ule *, the
general rules on venue of actions shall not apply
where the parties, before the fling of the action,
have validly agreed in writing on an e'clusive
venue. &he mere stipulation on the venue of an
34
action, however, is not enough to preclude
parties from bringing a case in other venues. f
the intention of the parties were to restrict venue,
there must be accompanying language clearly
and categorically e'pressing their purpose and
design that actions between them be litigated
only at the place named by them.
&he parties must be able to show that such
stipulation is 9S!G>SV9. n the absence of
-ualifying or restrictive words, the stipulation
should be deemed as merely an agreement on an
additional forum, not as limiting venue to the
specifed place.
PLEADINGS .Rules @ * 130
3leadings are written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate +udgment
(Sec. 1, *ue <). 3leadings aim to defne the
issues and foundation of proof to be submitted
during the trial, and to apprise the court of the
rival claims of the parties.
+INDS OF PLEADINGS .RULE @0
A= COMPLAINT
!omplaint is the pleading alleging the plainti/@s
cause or causes of action, stating therein the
names and residences of the plainti/ and
defendant (Sec. ), ,ule 8) and should contain a
concise statement of the ultimate facts
constituting the plainti/ @s cause of action.
B= ANSWER
An answer is a pleading in which a defending
party sets forth his defenses (Sec. 3, *ue <). t
may allege legal provisions relied upon for
defense (Sec. 1, *ue =). t may be an answer to
the complaint, counterclaim or a cross.claim,
third party complaint or complaint.in.
intervention.
T7e !e8e(!#(' #5 se' u9 '$2 G"(!s 28
!e8e(sesB
1= NEGATIVE DEFENSES
a) <egative defenses are the specifc denials
of the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action (Sec. 5["], *ue
<).
b) 0hen the answer sets forth negative
defenses, the burden of proof rests upon
the plainti/, and when the answer alleges
a5rmative defenses, the burden of proof
devolves upon the defendant.
c) &here are three types specifc denials"
1. Absolute denial . when the defend
ant specify each material allegation
of fact the truth of which he does not
admit and whenever practicable sets
forth the substance of the matters
upon which he relies to support such
denial.
2. Partial denial 7 when the defendant
does not ma2e a total denial of the
material allegations in a specifc
paragraph, denying only a part of the
averment. n doing so he specifes
that part of the truth of which he
admits and denies only the
remainder.
. !enial by disavowal of
"nowledge 7 when the defendant
alleges having no 2nowledge or
information su5cient to form a belief
as to the truth of a material
averment made in the complaint.
Such denial must be made in good
faith.
0hen the matter denied by a
disavowal of 2nowledge is plainly
and necessarily within the
defendant@s 2nowledge, such
claim shall not be considered as a
specifc denial.
f the denial does not fall within
the scope of the abovementioned
2inds of a specifc denial, it shall
be considered a 3ener" 'eni"
which is considered as "n
"'$ission of the "6er$ent not
s!eci?c"+ 'enie'.
2= NEGATIVE PREGNANT
<egative pregnant is an admission in
avoidance which does not -ualify as a
specifc denial.
t is a form of negative e'pression which
carries with it an a5rmation or at least an
implication of some 2ind favorable to the
adverse party. t is a denial pregnant with
an admission of the substantial facts
alleged in the pleading.
0here a fact is alleged with -ualifying or
modifying language and the words of the
allegation as so -ualifed or modifed are
literally denied, the -ualifying
circumstances alone are denied while the
fact itself is admitted.
35
t is not a specifc denial and is usually an
admission.
AFFIRMATIVE DEFENSES
A5rmative defenses are allegations of new
matters which, while hypothetically admitting the
material allegations in the pleading of the
claimant, would nevertheless prevent or bar
recovery by him.
A5rmative defenses include"
") =raud
%) Statute of limitations
c) ,elease
') 3ayment
e) llegality
f) Statute of frauds
3) 9stoppel
h) =ormer recovery
i) ?ischarge in ban2ruptcy
&) Any other matter by way of
confession and avoidance
(Sec. 5[%], *ue <)
C= COUNTERCLAIM
A counterclaim is any claim which a defending
party may have against an opposing party (Sec.
<, *ue <). t is in itself a claim or cause of action
interposed in an answer. t is either compulsory
or permissive.
1= COMPULSORY COUNTERCLAIM
A compulsory counterclaim is one which, being
cogni6able by the regular courts of +ustice, arises
out of or is connected with the transaction or
occurrence constituting the sub+ect matter of the
opposing party@s claim and does not re-uire for
its ad+udication, the presence of third parties of
whom the court cannot ac-uire +urisdiction. Such
a counterclaim must be within the +urisdiction of
the court, both as to the amount and the nature
thereof, e'cept that in an original action before
the ,&!, the counterclaim may be considered
compulsory regardless of the amount (Sec. ;,
*ue <).
&he failure of the defendant to set up a
compulsory counterclaim shall bar its institution,
sub+ect to the following e'ceptions"
a) f the counterclaim matured or was
ac-uired after the defendant had served
his answer. n such case, it may be
pleaded by fling a supplemental answer
or pleading before +udgment# and
b) 0hen a pleader fails to set up a
counterclaim through oversight,
inadvertence, e'cusable negligence, or
when +ustice re-uires, he may, by leave of
court, set up the counterclaim by
amendment of the pleadings before
+udgment.
P2"('s '2 12(s"!e-B
a) A compulsory counterclaim if not set up is
barred
b) t re-uires no payment of the doc2et fee
c) <eed not be answered
d) ?oes not need a certifcate against forum
shopping
2= PERMISSIVE COUNTERCLAIM
3ermissive counterclaim is a counterclaim which
does not arise out of nor is it necessarily
connected with the sub+ect matter of the
opposing party@s claim. t is not barred even if not
set up in the action.
T7e -eFu"-ee('s 28 # 9e-"ss")e
12u('e-1l#" #-eB
%) t does not re-uire for its ad+udication the
presence of third parties of whom the
court cannot ac-uire +urisdiction#
() t must be within the +urisdiction of the
court wherein the case is pending and is
cogni6able by the regular courts of +ustice#
and
)) t does not arise out of the same
transaction or series of transactions
sub+ect of the complaint.
P2"('s '2 12(s"!e-B
a) even if not set up is not barred because it
doesn@t arise out of the same transaction
as that of the complaint
b) it can be brought as a separate action in
itself
c) doc2et fee must be paid
d) it must be answered by the adverse party
to prevent default
e) it needs a certifcate against forum
shopping.
3= EFFECT ON T%E COUNTERCLAIM W%EN
T%E COMPLAINT IS DISMISSED
f a counterclaim has already been pleaded by
the defendant prior to the service upon him of
the plainti/Ds motion to dismiss, and the court
grants the said motion to dismiss, the dismissal
shall be limited to the complaint (Sec. 2, *ue
1;).
36
&he dismissal upon motion of plainti/ shall be
without pre+udice to the right of the defendant to
prosecute the counterclaim.
&he defendant if he so desires may prosecute his
counterclaim either in a separate action or in the
same action. Should he choose to have his
counterclaim resolved in the same action, he
must notify the court of his preference within %5
days from notice of the plainti/Ds motion to
dismiss. Should he opt to prosecute his
counterclaim in a separate action, the court
should render the corresponding order granting
and reserving his right to prosecute his claim in a
separate complaint.
&he dismissal of the complaint under Sec. 3 (due
to fault of plainti/) is without pre+udice to the
right of the defendant to prosecute his
counterclaim in the same action or in a separate
action. &his dismissal shall have the e/ect of
ad+udication upon the merits, unless otherwise
declared by the court. &he dismissal of the main
action does not carry with it the dismissal of the
counterclaim (Sec. <, *ue 1<).
D= CROSS*CLAIMS
A cross.claim is any claim by one party against a
co.party arising out of the transaction or
occurrence that is the sub+ect matter either of the
original action or of a counterclaim therein. Such
cross.claim may include a claim that the party
against whom it is asserted is or may be liable to
the cross.claimant for all of part of a claim
asserted in the action against the cross.claimant
(Sec. =, *ue <).
E= T%IRD .FOURT%*ETC=0 PARTY
COMPLAINTS
t is a claim that a defending party may, with
leave of court, fle against a person not a party to
the action, called the third (fourth, etc.)7party
defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his
opponentDs claim.
F= COMPLAINT*IN*INTERVENTION
!omplaint.in.intervention is a pleading whereby a
third party asserts a claim against either or all of
the original parties. f the pleading see2s to unite
with the defending party in resisting a claim
against the latter, he shall fle an answer.in.
intervention.
f at any time before +udgment, a person not a
party to the action believes that he has a legal
interest in the matter in litigation in a case in
which he is not a party, he may, with leave of
court, fle a complaint.in.intervention in the
action if he asserts a claim against one or all of
the parties.
G= REPLY
,eply is a pleading, the o5ce or function of which
is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the
answer and thereby +oin or ma2e issue as to such
matters. 9ven if a party does not fle such reply,
all the new matters alleged in the answer are
deemed controverted (Sec. 1., *ue <).
$ut you need to fle a reply if there is an
actionable document denying the due e'ecution
of such document under oath
PLEADINGS ALLOWED IN SMALL CLAIM
CASES AND CASES COVERED BY T%E RULES
ON SUMMARY PROCEDURE
&he only pleadings allowed under the ,ules on
Summary 3rocedure are
a) !omplaint
b) !A;3>GSA,O !A><&9,!GA; pleaded in
the answer,
c) cross.claim pleaded in the answer,
d) answers
these pleadings must be verifed.
&he only pleadings allowed under small claim
cases are"
a) Statement of claim
b) ,esponse
c) !ounterclaim in the response
PARTS OF A PLEADING .RULE 70
&he parts of a pleading under ,ule J are" the
caption (Sec. %), the te't or the body (Sec. (), the
signature and address (Sec. )), the verifcation
(Sec. *), and the certifcation against forum
shopping (Sec. 5).
CAPTION
&he caption must set forth the name of the court,
the title of the action, and the doc2et number if
assigned.
&he title of the action indicates the names of the
parties. &hey shall all be named in the original
complaint or petition# but in subse-uent
37
pleadings, it shall be su5cient if the name of the
frst party on each side be stated with an
appropriate indication when there are other
parties. &heir respective participation in the case
shall be indicated.
SIGNATURE AND ADDRESS
9very pleading must be signed by the party or
counsel representing him, stating in either case
his address which should not be a post o5ce bo'.
&he signature of counsel constitutes a certifcate
by him that he has read the pleading# that to the
best of his 2nowledge, information, and belief
there is good ground to support it# and that it is
not interposed for delay.
An unsigned pleading produces no legal e/ect.
4owever, the court may, in its discretion, allow
such defciency to be remedied if it shall appear
that the same was due to mere inadvertence and
not intended for delay. !ounsel who deliberately
fles an unsigned pleading, or signs a pleading in
violation of the ,ule, or alleges scandalous or
indecent matter therein, or fails to promptly
report to the court a change of his address, shall
be sub+ect to appropriate disciplinary action.
n every pleading, counsel has to indicate his
professional ta' receipt (3&,) and $3 receipt, the
purpose of which is to see to it that he pays his
ta' and membership due regularly.
VERIFICATION
A verifcation of a pleading is "n "@r$"tion
un'er o"th %+ the !"rt+ $":in3 the !e"'in3 th"t
he is !re!"re' to est"%ish the truthfuness of the
f"cts )hich he h"s !e"'e' %"se' on his o)n
!erson" :no)e'3e.
&he general rule under, Sec. *. ,ule J is that,
pleading need not be under oath. &his means that
a pleading need not be verifed. A pleading will be
verifed only when a verifcation is re-uired by a
law or by a rule.
A pleading is verifed by an a5davit, which
declares that"
a) the a5ant has read the pleading, and
b) the allegations therein are true and
correct to his personal 2nowledge or
based on authentic records.
&he verifcation re-uirement is signifcant, as it is
intended to secure an assurance that the
allegations in a pleading are true and correct and
not the product of the imagination or a matter of
speculation, and that the pleading is fled in good
faith. &he absence of proper verifcation is cause
to treat the pleading as unsigned and dismissible.
t is, however, been held that the absence of a
verifcation or the non.compliance with the
verifcation re-uirement does not necessarily
render the pleading defective. t is only a formal
and not a +urisdictional re-uirement. &he
re-uirement is a condition a/ecting only the form
of the pleading (S"r$einto 6s. A"r"t"n, 2..;).
&he absence of verifcation may be corrected by
re-uiring an oath. &he court may order the
correction of the pleading or act on an unverifed
pleading if the attending circumstances are such
that strict compliance would not fully serve
substantial +ustice, which after all, is the basic
aim for the rules of procedure (*o%ert
4e6eo!$ent Cor!. 6s. Buit"in, 315 SC*A 15.).
CERTIFICATION AGAINST FORUM*S%OPPING
<eeded in initiatory pleadings
&he certifcation against forum shopping is a
sworn statement certifying to the following
matters"
%) &hat the party has <A& !A;;9<!9? or
fled any claim involving the same issues
in any court, tribunal, or -uasi.+udicial
agency and, to the best of his 2nowledge,
no such other action or claim is pending#
() &hat if there is such other pending action
or claim, a complete statement of the
present S&A&>S thereof# and
)) &hat if he should therefore learn that the
same or similar action or claim has been
fled or is pending, he shall ,93A,& &4A&
=A!& within fve (5) days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been fled.
=ailure to comply with the foregoing re-uirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without
pre+udice, unless otherwise provided, upon
motion and after hearing.
&he submission of a false certifcation or non.
compliance with any of the underta2ings therein
shall constitute indirect contempt of court,
without pre+udice to the corresponding
administrative and criminal actions. f the acts of
the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be
ground for summary dismissal with pre+udice and
shall constitute direct contempt, as well as a
38
cause for administrative sanctions (Sec. 5, *ue
;).
3ossible Violations (as per ?ean ,iano)"
%) N2(*129l"#(1e $"'7 '7e u(!e-'#G"(:
7 dismissal without pre+udice
() F#lse Ce-'"H1#'"2( . indirect contempt,
administrative and criminal sanction
)) W"l8ul #(! !el"&e-#'e 82-u s7299"(:
7 ground for summary dismissal with
pre+udice without motion and hearing# it
has administrative but without criminal
sanctions
So, if the dismissal is without
pre+udice, your remedy is
certior"ri; if with pre+udice, the
remedy is appeal (Sec. 1(3),
*ue 91)
&he dismissal is not a sub+ect of
appeal if the order of dismissal
is without pre+udice.
&he certifcation is mandatory
under Sec. 5, *ue ;, but not
+urisdictional.
&here is forum shopping when
a) as a result of an adverse opinion in one
forum, a party see2s a favorable opinion,
other than by appeal or certiorari in
another forum
b) a party institutes two or more suits in
di/erent courts, either simultaneously or
successively, in order to as2 the courts to
rule on the same or related causes andLor
to grant the same or substantially the
same reliefs on the supposition that one or
the other court would ma2e a favorable
disposition or increase a partyDs chances
of obtaining a favorable decision or action
c) the elements of litis pendentia are present
or where a fnal +udgment in one case will
amount to res +udicata in another.
t is an act of malpractice, as the litigants triIe
with the courts and abuse their processes. t is
improper conduct and degrades the
administration of +ustice. f the act of the party or
its counsel clearly constitutes wilful and
deliberate forum.shopping, the same shall
constitute direct contempt, and a cause for
administrative sanctions, as well as a ground for
the summary dismissal of the case with pre+udice
(,ontes 6s. CA,"+ 9, 2..<)
I' "s '7e 9l#"('"D 2- 9-"(1"9#l 9#-'5 $72
e?e1u'es '7e 1e-'"H1#'"2( u(!e- 2#'7/ #(!
(2' '7e #''2-(e5. t must be signed by the party
himself and cannot be signed by his counsels. As
a general and prevailing rule, a certifcation
signed by counsel is a defective certifcation and
is a valid cause for dismissal. &his is the general
and prevailing rule. A certifcation by counsel and
not by the principal party himself is no
certifcation at all. &he reason for re-uiring that it
must be signed by the principal party himself is
that he has actual 2nowledge, or 2nows better
than anyone else, whether he has initiated similar
actionLs in other courts, agencies or tribunals.
&his certifcation is not necessary when what is
fled is a mere motion for e'tension, or in criminal
cases and distinct causes of action.
RE<UIREMENTS OF A CORPORATION
EXECUTING T%E
VERIFICATION>CERTIFICATION ON NON*
FORUM S%OPPING
A +uridical entity, unli2e a natural person, can
only perform physical acts through properly
delegated individuals. &he certifcation against
forum shopping where the plainti/ or a principal
party is a +uridical entity li2e a corporation may
be e'ecuted by properly authori6ed persons. &his
person may be the lawyer of a corporation.
As long as he is duly authori6ed by the
corporation and has personal 2nowledge of the
facts re-uired to be disclosed in the certifcation
against forum shopping, the certifcation may be
signed by the authori6ed lawyer.
EFFECT OF T%E SIGNATURE OF COUNSEL IN
A PLEADING
!ounsel@s signature signifes that"
a) 4e has read the pleading#
b) &hat to the best of his 2nowledge,
information and belief there is a good
ground to support it# and
c) &hat it is not interposed for delay.
ALLEGATIONS IN A PLEADING
9very pleading shall contain in a mathematical
and logical form, a plain, concise and direct
statement of the ultimate facts on which the
party relies for his claim and defense, as the case
may be, containing the statement of mere
evidenciary facts (Sec. 1, *ue =).
MANNER OF MA+ING ALLEGATIONS .RULE
C0
PLEADING CONDITION PRECEDENT
39
!onditions precedents are matters which must be
complied with before a cause of action arises.
0hen a claim is sub+ect to a condition precedent,
the compliance of the same must be alleged in
the pleading.
=ailure to comply with a condition precedent is an
independent ground for a motion to dismiss" that
a condition precedent for fling the claim has not
been complied (Sec. 1[&], *ue 1<) (i.e. %"r"n3"+
concii"tion, 'e$"n', etc)
PLEADING A ,UDGMENT
n pleading a +udgment or decision of a domestic
or foreign court, +udicial or -uasi.+udicial tribunal,
or of a board or o5cer, it is su5cient to aver the
+udgment or decision without need of alleging
matters showing the +urisdiction to render such
decision.
PLEADING FRAUD/ MISTA+E/ MALICE/
INTENT/ +NOWLEDGE AND OT%ER
CONDITION OF T%E MIND ,UDGMENTS
OFFICIAL DOCUMENTS OR ACTS
0hen ma2ing averments of =,A>? A, ;S&AT9,
&49 !,!>;S&A<!9S !A<S&&>&<B S>!4
=,A>? A, ;S&AT9 must be stated with
particularity (Sec. 5, *ue =). t is not enough
therefore, for the complaint to allege that he was
defrauded by the defendant. >nder this provision,
the complaint must state with 3A,&!>GA,&O the
fraudulent acts of the adverse party. &hese
particulars would necessarily include the time,
place and specifc acts of fraud committed
against him.
;AG!9, <&9<&, T<A0G9?B9 A, A&49,
!A<?&A<S A= &49 ;<? of a person may be
averred B9<9,AGGO (Sec. 5, *ue =). >nli2e in
fraud or mista2e, they need not be stated with
particularity. &he rule is borne out of human
e'perience. t is di5cult to state the particulars
constituting these matters. 4ence, a general
averment is su5cient.
PLEADING AN ACTIONABLE DOCUMENT
An actionable document is a document relied
upon by either the plainti/ or the defendant.
0henever an actionable document is the basis of
a pleading, the rule specifcally direct the pleader
to"
a) set forth in the pleading the substance of
the instrument or the document# or
b) to attach the original or the copy of the
document to the pleading as an e'hibit
and to be part of the pleading# or
c) to set forth in the pleading said copy of
the instrument or document (Sec. ;, *ue
=).
&his manner of pleading a document applies only
to one which is the basis of action or a defense.
4ence, if the document does not have the
character of an actionable document, as when it
is merely evidentiary, it need not be pleaded
strictly.
SPECIFIC DENIALS
&here are three modes of specifc denial which
are contemplated by the ,ules, namely"
a) $y specifying each material allegation of
the fact in the complaint, the truth of
which the defendant does not admit, and
whenever practicable, setting forth the
substance of the matter which he will rely
upon to support his denial#
b) $y specifying so much of the averment in
the complaint as is true and material and
denying only the remainder#
c) $y stating that the defendant is without
2nowledge or information su5cient to
form a belief as to the truth of a material
averment in the complaint, which has the
e/ect of denial.
&he purpose of re-uiring the defendant to ma2e a
specifc denial is to ma2e him disclose the
matters alleged in the complaint which he
succinctly intends to disprove at the trial,
together with the matter which he relied upon to
support the denial. &he parties are compelled to
lay their cards on the table.
EFFECT OF FAILURE TO MA+E SPECIFIC
DENIALS
;aterial allegations, e'cept unli-uidated
damages, not specifcally denied are deemed
admitted (Sec. 11, *ue =).
f the allegations are deemed admitted, there is
no more triable issue between the parties and if
the admissions appear in the answer of the
defendant, the plainti/ may fle a motion for
+udgment on the pleadings under ,ule )*.
An admission in a pleading cannot be
controverted by the party ma2ing such admission
because the admission is conclusive as to him. All
proofs submitted by him contrary thereto or
inconsistent therewith should be ignored whether
40
an ob+ection is interposed by a party or not. Said
admission is a +udicial admission, having been
made by a party in the course of the proceedings
in the same case, and does not re-uire proof.
A party who desires to contradict his own +udicial
admission may do so only be either of two ways"
a) by showing that the admission was made
through palpable mista2e# or
b) that no such admission was made (Sec. 9,
*ue 129).
&he following are (2' !eee! #!"''e! by the
failure to ma2e a specifc denial"
a) &he amount of unli-uidated damages#
b) !onclusions in a pleading which do not
have to be denied at all because only
ultimate facts need be alleged in a
pleading#
c) <on.material allegations, because only
material allegations need be denied.
W%EN A SPECIFIC DENIAL RE<UIRES AN
OAT%
Specifc denials which must be under oath to be
su5cient are"
a) A denial of an actionable document (Sec.
=, *ue =);
b) A denial of allegations of usury in a
complaint to recover usurious interest
(Sec. 11, *ue =).
EFFECT OF FAILURE TO PLEAD .RULE A0
FAILURE TO PLEAD DEFENSES AND
OB,ECTIONS
?efenses or ob+ections not pleaded either in a
motion to dismiss or in the answer are deemed
waived.
9'ceptions"
a) Gac2 of +urisdiction over the sub+ect
matter#
b) &hat there is another action pending
between the same parties for the same
cause (itis !en'enti");
c) &hat the action is barred by the statute of
limitations (!rescri!tion);
') *es &u'ic"t".
n all these cases, the court shall
dismiss the claim.
FAILURE TO PLEAD A COMPULSORY
COUNTERCLAIM AND CROSS*CLAIM
A compulsory counterclaim or a cross.claim not
set up shall be barred (Sec. (, ,ule E).
DEFAULT
?efault is a procedural concept that occurs when
the defending party fails to fle his answer within
the reglementary period. t does not occur from
the failure of the defendant to attend either the
pre.trial or the trial.
W%EN A DECLARATION OF DEFAULT IS
PROPER
f the defending party fails '2 #(s$e- within the
time allowed therefor, the court shall, upon
2'"2( of the 1l#""(: 9#-'5 with (2'"1e to the
!e8e(!"(: 9#-'5, and 9-228 28 su17 8#"lu-e,
declare the defending party in default (Sec. 3,
*ue 9).
n order for the court to declare the defendant in
default the following re-uisites must be present"
%. &he court must have validly A!H>,9?
:>,S?!&A< over the person of the
defendant either by service of summons
or voluntary appearance#
(. &he defendant =AGS &A A<S09, within
the time allowed therefore#
). &here must be a MOTION to declare the
defendant in default#
*. &here must be <A&!9 to the defendant
by serving upon him a copy of such
motion#
5. &here must be 3,AA= of such failure to
answer# and
8. &here must be a 49A,<B to declare the
defendant in default.
t is not correct to declare a party in default of the
defending party fled an answer
EFFECT OF AN ORDER OF DEFAULT
1) &he party declared in default loses his
standing in court preventing him from ta2ing
part in the trial#
2) &he party in default shall still be entitled to
notices of subse-uent proceedings as well as
to receive notice that he was declared in
default#
3) &he declaration of default is not an admission
of the truth or validity of the plainti/@s claims.
RELIEF FROM AN ORDER OF DEFAULT
REMEDY FROM T%E NOTICE OF ORDER AND
BEFORE ,UDGMENTB
41
MOTION TO SET ASIDE ORDER OF
DEFAULT, showing that
a) the failure to answer was due to fraud,
accident, mista2e, or e'cusable
negligence, and
b) the defendant has a meritorious
defenseUthere must be an a5davit of
merit (Sec. 3[%], *ue 9).
REMEDY AFTER ,UDGMENT BUT BEFORE
FINALITYB
MOTION FOR NEW TRIAL (*ue 3;);
MOTION FOR RECONSIDERATION# or
APPEAL from the +udgment as being
contrary to the evidence or the law (*ue
91).
Oou can directly fle an appeal without
passing ;, and ;<&# or you can ;,L;<&
and if denied, then you can still fle an
appeal and have a new Mfresh %5 dayN
period of appeal (<eypes doctrine)
&his <eypes doctrine on Mfresh period of
appealN applies to ,ule *5 and Sec. ) (e)
of ,ule %((.
&he purpose of the doctrine is to
standardi6e the period of appeal.
&he appeal shall be ta2en within #fteen
(1$) days from notice of the
%udgment or #nal order appealed
from. 0here a record on appeal is
re-uired, the appellant shall fle a notice of
appeal and a record on appeal within
thirty ()F) days from notice of the
+udgment or fnal order.
So the period of appeal is 16 !#5s 8-2
(2'"1e 28 ;u!:e(' or 16 !#5s 8-2
H(#l 2-!e- #99e#le! 8-2=
&he S! ruled in one case that this Mfresh
period of appealN is applicable in criminal
cases (&udith 'u vs. &udge (amson,
)eb. *, 2011)
REMEDY AFTER ,UDGMENT BECOMES FINAL
AND EXECUTORYB
PETITION FOR RELIEF FROM ,UDGMENT
(*ue 3=);
ACTION FOR NULLITY OF ,UDGMENT (*ue
9;).
I8 '7e 2-!e- 28 !e8#ul' "s )#l"!/
+ertiorari "s (2' #)#"l#&le. f the default
order was improvidently issued, that is,
the defendant was declared in default,
without a motion, or without having
served with summons before the
e'piration of the reglementary period to
answer, certior"ri is available as a remedy.
EFFECT OF A PARTIAL DEFAULT
0hen a pleading asserting a claim states a
common cause of action against several
defending parties, some of whom answer and the
others fail to do so, the court shall try the case
against all upon the answers thus fled and render
+udgment upon the evidence presented (Sec.
33[c], *ue 9).
?efault is only against those defendant who
didn@t fle the answer but they can also beneft
from the answering defendants
EXTENT OF RELIEF
A +udgment rendered against a party in default
may not e'ceed the amount or be di/erent from
that prayed for nor include unli-uidated damages
which are not awarded (Sec. 3[c], *ue 9). n fact,
there can be no automatic grant of relief as the
court has to weigh the evidence.
&he court may render +udgment before or after
the presentation of evidence. So the court may
award unli-uidated damages in case where the
court default defendant in default after the
presentation of the evidence.
ACTIONS W%ERE DEFAULT ARE NOT
ALLOWED
%) Annulment of marriage#
() ?eclaration of nullity of marriage#
)) Gegal separation
*) n special civil actions of certiorari, prohibition
and mandamus where comment instead of an
answer is re-uired to be fled# and
5) Summary procedure.
FILING AND SERVICE OF PLEADINGS .RULE
130
PAYMENT OF DOC+ET FEES
t is not simply the fling of the complaint or
appropriate initiatory pleading but the payments
of the prescribed doc2et fee that vests a trial
court with :>,S?!&A< over the sub+ect matter
or nature of the action. n connection with the
payment of doc2et fees, the court re-uires that
42
all complaints, petitions, answers and similar
pleadings must specify the amount of damages
being prayed for both in the body of the pleading
and in prayer therein and said damages shall be
considered in the assessment of the fling fees#
otherwise such pleading shall not be accepted for
fling or shall be e'punged from the record.
Any defect in the original pleading resulting in
underpayment of the doc2et fee cannot be cured
by amendment, such as by the reduction of the
claim as, for all legal purposes, there is no
original complaint over which the court has
ac-uired +urisdiction.
&he rule on payment of doc2et fee has, in some
instances, been sub+ect to the rule on G$9,AG
<&9,3,9&A&A<. &hus, in a case, it was held that
while the payment of the re-uired doc2et fee is a
+urisdictional re-uirement, even its nonpayment
at the time of fling does not automatically cause
the dismissal of the case, as long as the fee is
paid within the applicable prescriptive or
reglementary period.
Also, if the amount of doc2et fees is insu5cient
considering the amount of the claim, the party
fling the case will be re-uired to pay the
defciency, but +urisdiction is not automatically
lost.
0ithin the period for ta2ing an A339AG, the
appellant shall pay to the cler2 of court which
rendered the +udgment or fnal order appealed
from, the full amount of the appellate court
doc2et and other lawful fees (Sec. 9, *ue 91).
4ence, the ,ule now re-uires that appellate
doc2et and other lawful fees must be paid within
the same period for ta2ing an appeal. Such
payment of doc2et fee within the prescribed
period is mandatory for the perfection of an
appeal.
0ithout such payment, the appellate court does
not ac-uire +urisdiction over the sub+ect matter of
the action and the decision sought to be
appealed from becomes fnal and e'ecutor.
4ence, nonpayment is a valid ground for the
dismissal of an appeal. 4owever, delay in the
payment of the doc2et fees confers upon the
court a discretionary, not a mandatory power to
dismiss an appeal.
FILING VERSUS SERVICE OF PLEADINGS
=G<B is the act of presenting the pleading or
other paper to the cler2 of court#
S9,V!9 is the act of providing a party with a
copy of the pleading or paper concerned (Sec. 2,
*ue 13).
PERIODS OF FILING OF PLEADINGS
&he date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as
shown by the post o5ce stamp on the envelope
or the registry receipt, shall be considered as the
date of their fling, payment, or deposit in court.
&he envelope shall be attached to the record of
the case (Sec. 3, *ue 13)
&49 FILING OF RESPONSIVE PLEADINGS
S%ALL %AVE T%E FOLLOWING PERIODS
%) Answer to the complaint
within %5 days after service of
summons unless a di/erent period is
f'ed by the court.
2) Answer of a defendant foreign private
%uridical entity
a. f it has a resident agent
within %5 days after service of
summons to such agent.
b. f it has no resident agent but it has an
agent or o5cer in the 3hilippines
within %5 days after service of
summons to said agent or o5cer.
c. f it has no resident agent, agent or o5cer
the service of summons shall be made on
the proper government o5ce which will
then forward it by registered mail within
%F days to the corporation@s o5ce
the answer must be fled within )F
days from the receipt of the summons
by the home o5ce.
) ,hen the service is made by publication
within the time specifed in the order
granting leave to serve summons by
publication which shall not be less than
8Fm days after notice.
*) ,hen the defendant is a non-resident on
whom e.traterritorial service is made
within 8F days from such service.
$) Answer to an amended complaint
where the amendment is a matter of
right, within %5 days from the service
of amended complaint. f the
amendment is <A& a matter of right,
the answer must be fled within %F
days from notice of the order admitting
the same.
43
&he same periods shall apply to
answers fled on an amended
counterclaim , cross claim and third
party complaint.
8) Answer to counterclaim or cross-claim
within %F days from service
/) Answer to third-party complaint
the period to answer shall be the same
as the periods given in answering a
complaint which shall either be %5, )F
or 8F days as the case may be.
K) 0eply
within %F days from the service of the
pleading responded to.
*) Answer to supplemental complaint
within %F days from notice of the order
admitting the supplemental complaint
unless a di/erent period is f'ed by the
court.
MANNER OF FILING
$y 39,SA<AG S9,V!9 or by ,9BS&9,9? ;AG.
&he fling of pleadings, appearances, motions,
notices, orders, +udgments and all other papers
shall be made by presenting the original copies
thereof, plainly indicated as such, personally to
the cler2 of court or by sending them by
registered mail (,egistry Service). n the frst
case, the cler2 of court shall endorse on the
pleading the date and hour of fling. n the second
case, the date of the mailing of motions,
pleadings, or any other papers or payments or
deposits, as shown by the post o5ce stamp on
the envelope or the registry receipt, shall be
considered as the date of their fling, payment, or
deposit in court. &he envelope shall be attached
to the record of the case (Sec. 3, *ue 13).
MODES OF SERVICE
&here are two modes of service of pleadings,
+udgments, motions, notices, orders, +udgments
and other papers"
a) personally, or
b) by mail.
4owever, if personal service and serviced by mail
cannot be made, service shall be done by
substituted service.
PERSONAL SERVICE
t is the preferred mode of service. f another
mode of service is used other than personal
service, the service must be accompanied by a
written e'planation why the service of fling was
not done personally. 9'empt from this
e'planation are papers emanating from the court.
A violation of this e'planation re-uirement may
be a cause for the paper to be considered as not
having been fled (Sec. 11, *ue 13).
3ersonal service is made by"
") delivering a copy of the papers served
personally to the party or his counsel, or
%) by leaving the papers in his o5ce with his
cler2 or a person having charge thereof, or
c) f no person is found in the o5ce, or his
o5ce is not 2nown or he has no o5ce,
then by leaving a copy of the papers at
the party@s or counselDs residence, if
2nown, with a person of su5cient age and
discretion residing therein between eight
in the morning and si' in the e6enin3
(Sec. <, *ue 13).
SERVICE BY MAIL
&he preferred service by mail is by registered
mail. t is deemed complete upon actual receipt
by the addressee or after 5 days from the date he
received the frst notice of the postmaster
whichever is earlier. Service by ordinary mail may
be done only if no registry service is available in
the locality of either the sender or the addressee
(Sec. ;, *ue 13).
t shall be done by depositing the copy in the post
o5ce, in a sealed envelope, plainly addressed to
the party or his counsel at his o5ce, if 2nown, or
otherwise at his residence, if 2nown, with postage
fully prepaid, and with instructions to the
postmaster to return the mail to the sender after
ten (%F) days if not delivered.
SUBSTITUTED SERVICE .FILING0
&his mode is availed of only when there is failure
to e/ect service personally or by mail. &his failure
occurs when the o5ce and residence of the party
or counsel is un2nown.
t is e/ected by delivering the copy to the cler2 of
court, with proof of failure of both personal
service and service by mail (Sec. K, ,ule %)).
Substituted service is complete at the time of
delivery of the copy to the cler2 of court.
SERVICE OF ,UDGMENTS/ FINAL ORDERS
OR RESOLUTIONS
44
=inal orders or +udgments shall be served either
personally or by registered mail. 0hen a party
summoned by publication has failed to appear in
the action, fnal orders or +udgments against him
shall be served upon him also by publication at
the e'pense of the prevailing party (Sec. E).
PRIORITIES IN MODES OF SERVICE AND
FILING
3ersonal service is the preferred mode of
service.
&he preferred service by mail is by registered
mail.
&he following papers are re-uired to be fled
in court and served upon the parties a/ected"
(a) :udgments# (b) ,esolutions# (c) Arders# (d)
3leadings subse-uent to the complaint# (e)
0ritten motions# (f) <otices# (g) Appearances#
(h) ?emands# (i) A/ers of +udgment# (+)
Similar papers (Sec. 9, *ue 13).
W%EN SERVICE IS DEEMED COMPLETE
3ersonal service is deemed complete upon the
actual delivery following the above procedure
(Sec. 1., *ue 13).
Service by ordinary mail is deemed complete
upon the e'piration of ten (%F) days after mailing,
unless the court otherwise provides. An the other
hand, service by registered mail is complete upon
actual receipt by the addressee, or after fve (5)
days from the date he received the frst notice of
the postmaster, whichever is earlier (Sec. =, *ue
13).
Substituted service is complete at the time of
delivery of the copy to the cler2 of court.
PROOF OF FILING AND SERVICE
PROOF OF FILING
&he fling of a pleading or paper is proved by its
e'istence in the record. f it is not in the record
%) f fled 39,SA<AGGO"
3roved by the written or stamped
ac2nowledgement of its fling by the
cler2 of court on a copy of the same#
or
() f fled by ,9BS&9,9? ;AG"
3roved by the registry receipt A<? the
a5davit of the person who did the
mailing with a full statement of"
a) &he date and place of
depositing the mail in the post
o5ce in a sealed envelope
assessed to the court#
b) 0ith postage fully paid# and
c) 0ith the instructions to the
postmaster to return the mail to
the sender after %F days if
undelivered.
PROOF OF SERVICE
%) 3roof of personal service shall consist of"
the written admission of the party served#
or
&he o5cial return of the server# or
&he a5davit of the party serving (in case
of refusal to receive), containing full
information of the date, place and manner
of service (Sec. 13, *ue 13).
() 3roof of service by registered mail
Shall be shown by the a5davit of the
mailer showing compliance with Sec. ;,
*ue 13 and the registry receipt issued by
the mailing o5ce and present the
document returned or the card.
)) 3roof of service of ordinary mail
Service shall be proved by a5davit of the
mailer showing compliance with Sec. ;,
*ue 13
AMENDMENT .RULE 100
AMENDMENT AS A MATTER OF RIG%T
A plainti/ has the right to amend his complaint
2(1e at any time &e82-e # -es92(s")e
9le#!"(: "s se-)e! by the other party or in case
of a reply to which there is no responsive
pleading, at any time within ten (%F) days after it
is served (Sec. 2, *ue 1.).
&hus, before an answer is served on the plainti/,
the latter may amend his complaint as # #''e-
28 -":7' 82- $7#'e)e- -e#s2(s #s "' #5 &e/
e)e( '2 12--e1' '7e e--2- 28 ;u!:e('. &he
defendant may also amend his answer, also as a
matter of right, before a reply is served upon him.
(Sec. 2 refers to "n "$en'$ent $"'e %efore the
tri" court, not to "$en'$ents %efore the CA).
&he !A is vested with +urisdiction to admit or
deny amended petitions fled before it. 4ence,
even if no responsive pleading has yet been
served, if the amendment is subse-uent to a
previous amendment made as a matter of right,
the subse-uent amendment must be with leave
of court.
So you can amend the complaint to correct the
error of +urisdiction as a matter of right (without
45
leave of court) before a responsive pleading is
served even though there is already a motion to
dismiss fled for lac2 of +urisdiction. &he court
should deny the motion since such motion is not
a responsive pleading. <ote" &he amendment as
a matter of right should be fled before the order
to dismiss becomes fnal.
AMENDMENTS BY LEAVE OF COURT
Geave of court is re-uired for substantial
amendment made after service of a responsive
pleading (Sec. 3, *ue 1.). &he plainti/, for
e'ample, cannot amend his complaint by
changing his cause of action or adding a new one
without leave of court.
After a responsive pleading is fled, an
amendment to the complaint may be substantial
and will correspondingly re-uire a substantial
alteration in the defenses of the adverse party.
&he amendment of the complaint is not only
unfair to the defendant but will cause
unnecessary delay in the proceedings. Geave of
court is thus, re-uired.
0here no responsive pleading has yet been
served, no defenses would be altered. &he
amendment of the pleading will not then re-uire
leave of court.
FORMAL AMENDMENT
A defect in the designation of the parties and
other clearly clerical or typographical errors may
be su#-"l5 12--e1'e! by the court at any
stage of the action, at its initiative or on motion,
provided no pre+udice is caused thereby to the
adverse party (Sec. 9, *ue 1.).
AMENDMENTS TO CONFORM TO OR
AUT%ORIIE PRESENTATION OF EVIDENCE
0hen issues not raised by the pleadings are tried
with the e'press or implied consent of the
parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be made
upon motion of any party at any time, even after
+udgment# but failure to amend does not a/ect
the result of the trial of these issues.
f evidence is ob+ected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the pleadings
to be amended and shall do so with liberality if
the presentation of the merits of the action and
the ends of substantial +ustice will be subserved
thereby. &he court may grant a continuance to
enable the amendment to be made (Sec. 5, *ue
1.).
DIFFERENT FROM SUPPLEMENTAL
PLEADINGS
A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
happened since the date of the pleading sought
to be supplemented. &he fling of supplemental
pleadings re-uires leave of court. &he court may
allow the pleading only upon such terms as are
+ust. &his leave is sought by the fling of a motion
with notice to all parties (Sec. <, *ue 1.).
A supplemental pleading does not e'tinguish the
e'istence of the original pleading, while an
amended pleading ta2es the place of the original
pleading. A supplemental pleading e'ists side
with the original# it does not replace that which it
supplements it does not supersede the original
but assumes that the original pleading remain as
the issues to be tried in the action. A
supplemental pleading supplies the defciencies
in aid of an original pleading, not to entirely
substitute the latter.
EFFECT OF AMENDED PLEADING
An amended pleading supersedes the original
one which it amends (Sec. =, *ue 1.).
&he original pleading loses its status as a
pleading, is deemed withdrawn and
disappears from the record. t has been held
that the original complaint is deemed
superseded and abandoned by the
amendatory complaint only if the latter
introduces a new or di/erent cause of action.
&he defenses in the original pleadings not
reproduced in the amended pleadings are
waived.
Admissions in the superseded pleading can
still be received in evidence against the
pleader.
SUMMONS .Rule 140
Summons is a writ or process issued and
served upon the defendant in a civil action for
the purpose of securing his appearance
therein.
&he purpose of summons is to comply with
the constitutional rights on due process
&he service of summons enables the court to
ac-uire +urisdiction over the person of the
defendant. f there is no service of summons,
46
any +udgment rendered or proceedings had in
a case are null and void, e'cept in case of
voluntary appearance. &he law re-uiring the
manner of service of summons is
+urisdictional.
0hen the defendant is a corporation,
partnership or association organi6ed under
the laws of the 3hilippines with a +uridical
personality, service may be made on the
president, managing partner, general
manager, corporate secretary, treasurer, or
in.house counsel (Sec 11).
f a party dies and there is substitute, there is
no need for summons but only an order for
him tom appear.
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM/
IN REM AND <UASI IN REM
n an #1'"2( "( 9e-s2(#, the purpose of
summons is not only to notify the defendant of
the action against him but also to ac-uire
+urisdiction over his person. &he fling of the
complaint does not enable the courts to ac-uire
+urisdiction over the person of the defendant. $y
the fling of the complaint and the payment of the
re-uired fling and doc2et fees, the court ac-uires
+urisdiction only over the person of the plainti/,
not over the person of the defendant. Ac-uisition
of +urisdiction over the latter is accomplished by a
valid service of summons upon him. Service of
summons logically follows the fling of the
complaint. <ote further that the fling of the
complaint tolls the running of the prescriptive
period of the cause of action in accordance with
Article %%55 of the !ivil !ode.
n an #1'"2( "( -e 2- Fu#s" "( -e,
+urisdiction over the defendant is not re-uired
and the court ac-uires +urisdiction over an action
as long as it ac-uires +urisdiction over the res.
&he purpose of summons in these actions is not
the ac-uisition of +urisdiction over the defendant
but mainly to satisfy the constitutional
re-uirement of due process.
VOLUNTARY APPEARANCE
&he defendantVs voluntary appearance in the
action shall be e-uivalent to service of summons.
&he inclusion in a motion to dismiss of other
grounds aside from lac2 of +urisdiction over the
person of the defendant shall not be deemed a
voluntary appearance (Sec. 2., *ue 19).
:urisdiction over the defendant is ac-uired by"
") Valid service of summons# or
%) $y his voluntary appearance or
submission to the +urisdiction of the court.
&he defendant@s voluntary appearance in the
action shall be e-uivalent to service of summons.
Gac2 of +urisdiction over one@s person maybe
invo2ed in a motion to dismiss alleging such
ground. f no motion to dismiss is fled, it may be
raised as an a5rmative defense in the answer.
&he inclusion in a motion to dismiss of other
grounds aside from lac2 of +urisdiction over the
person of the defendant shall not be deemed a
voluntary appearance.
PERSONAL SERVICE
t shall be served by 4A<?G<B a copy to the
defendant in person, or if he refuses it, by
&9<?9,<B it to him (Sec. 8, ,ule %*).
SUBSTITUTED SERVICE .SUMMONS0
f the defendant cannot be served within a
reasonable time, service may be e/ected"
%) $y leaving copies of the summons at the
defendant@s dwelling house or residence
with some person of suitable age and
discretion then residing therein# or
() $y leaving copies at defendant@s o5ce or
regular place of business with some
competent person in charge thereof (Sec.
;).
&he following facts must frst be shown for the
service to be valid"
%) &he impossibility of the personal service
within a reasonable time
() &he e/ort e'erted to locate the person to
be served
)) Service upon a person of su5cient age
and discretion residing in the same place
or some competent person in charge of his
o5ce or regular place of business
*) &here should be at least ) attempts in (
days.
t may be resorted to if there are +ustifable
causes, where the defendant cannot be served
within a ,9ASA<A$G9 &;9 (for !"inti7 C ; '"+s;
sheri7 C 15 D 3. '"+s). An e'ample is when the
defendant is in hiding and resorted to it
intentionally to avoid service of summons, or
when the defendant refuses without +ustifable
reason to receive the summons.
n substituted service of summons, actual receipt
of the summons by the defendant through the
person served must be shown. t further re-uires
47
that where there is substituted service, there
should be a report indicating that the person who
received the summons in defendant@s behalf was
one with whom petitioner had a relation of
confdence ensuring that the latter would receive
or would be notifed of the summons issued in his
name.
Substituted service is not allowed in service of
summons on domestic corporations.
CONSTRUCTIVE SERVICE .BY PUBLICATION0
As a rule, summons by publication is available
only in actions in rem or -uasi in rem. t is not
available as a means of ac-uiring +urisdiction over
the person of the defendant in an action in
personam.
Against a resident, the recogni6ed mode of
service is service in person on the defendant
under Sec. < *ue 19. n a case where the
defendant cannot be served within a reasonable
time, substituted service will "!!+ (Sec. ;, *ue
19), but no summons by publication which is
permissible however, under the conditions set
forth in Sec. 19, *ue 19.
Against a non.resident, +urisdiction is ac-uired
over the defendant by service upon his person
while said defendant is within the 3hilippines. As
once held, when the defendant is a nonresident,
personal service of summons in the state is
essential to the ac-uisition of +urisdiction over
him. &his is in fact the only way of ac-uiring
+urisdiction over his person if he does not
voluntarily appear in the action. Summons by
publication against a nonresident in an action in
personam is not a proper mode of service.
3ublication is notice to the whole world that the
proceeding has for its ob+ect to bar indefnitely all
who might be minded to ma2e an ob+ection of
any sort against the right sought to be
established. t is the publication of such notice
that brings the whole world as a party in the case
and vests the court with +urisdiction to hear and
decide it.
SERVICE UPON A DEFENDANT W%ERE %IS
IDENTITY IS UN+NOWN OR W%ERE %IS
W%EREABOUTS ARE UN+NOWN
0here the defendant is designated as un2nown,
or whenever his whereabouts are un2nown and
cannot be ascertained despite a diligent in-uiry,
service may, with prior leave of court, be e/ected
upon the defendant, by publication in a
newspaper of general circulation. &he place and
the fre-uency of the publication is a matter for
the court to determine (Sec. 19, *ue 19).
&he rule does not distinguish whether the action
is in personam, in rem or -uasi in rem. &he tenor
of the rule authori6es summons by publication
whatever the action may be as long as the
identity of the defendant is un2nown or his
whereabouts are un2nown.
RULES ON SUMMONS ON DEFENDANT
.10 Res"!e('
(a) P-ese(' in the 3hilippines
%) 3ersonal service (,ule %*, Sec. 8)
() Substituted service (,ule %*, Sec.
J)
)) 3ublication, but only if
a) his identity or whereabouts is
un2nown (,ule %*, Sec. %*)#
and
b) the action is in rem or -uasi in
rem
(b) A&se(' from the 3hilippines
%) Substituted service (,ule %*, Sec.
J)
() 9'traterritorial service (,ule %*,
Sec. %8 and %5)# action need not be
in rem or -uasi in rem
.20 N2(*-es"!e('
%. 3resent in the 3hilippines
a) 3ersonal service (Sec. 8, ,ule %*)
b) Substituted service (Sec. J, ,ule
%*)
(. Absent from the 3hilippines
a) Action in rem or -uasi in rem 7 only
9'traterritorial service (,ule %*,
Sec. %5)
b) Action in personam, and +udgment
cannot be secured by attachment
(e.g. action for in+unction)
%) 0ait for the defendant to
come to the 3hilippines and
to serve summons then
() 0ait the defendant to
voluntarily appear in court
(,ule %*, Sec. (F)
)) 3lainti/ cannot resort to
e'traterritorial service of
summons
SERVICE UPON RESIDENTS TEMPORARILY
OUTSIDE T%E P%ILIPPINES
Service of summons upon a resident of the
3hilippines who is temporarily out of the country,
may, by leave of court be e/ected out of the
3hilippines as under the rules on e'traterritorial
48
service in Sec. 15, *ue 19 by any of the following
modes"
%) by personal service as in Sec. <,
() by publication in a news paper of general
circulation together with a registered
mailing of a copy of the summons and the
order of the court to the last 2nown
address of the defendant, or
)) by any manner the court may deem
su5cient under Sec. 1<.
Gi2e in the case of an un2nown defendant or one
whose whereabouts are un2nown, the rule
a/ecting residents who are temporarily out of the
3hilippines applies in any action. <ote also, that
summons by publication may be e/ected against
the defendant.
&he defendant may however, also be served by
substituted service. &his is because even if he is
abroad, he has a residence in the 3hilippines or a
place of business and surely, because of his
absence, he cannot be served in person within a
reasonable time.
EXTRA*TERRITORIAL SERVICE/ W%EN
ALLOWED
>nder Sec. 15, *ue 19, e'traterritorial service of
summons is proper only in four (*) instances
namely"
%) 0hen the action a/ects the personal
status of the plainti/s#
() 0hen the action relates to, or the sub+ect
of which is, property within the 3hilippines,
in which the defendant has or claims a lien
or interest, actual or contingent#
)) 0hen the relief demanded in such action
consists, wholly or in part, in e'cluding the
defendant from any interest in property
located in the 3hilippines# and
*) 0hen the defendant non.resident@s
property has been attached within the
3hilippines.
9'traterritorial service of summons applies when
the following re-uisites concur"
%) &he defendant is nonresident#
() 4e is not found in the 3hilippines# and
)) &he action against him is either in rem or
-uasi in rem.
f the action is in personam, this mode of service
will not be available. &here is no e'traterritorial
service of summons in an action in personam.
4ence, e'traterritorial service upon a nonresident
in an action for in+unction which is in personam is
not proper (B"nco 4o Br"si 6s. CA, 333 SC*A
595).
0hen the action is in personam, +urisdiction over
the person of the defendant is necessary for the
court to validly try and decide the case. 4owever,
when the defendant is a nonresident, personal
service of summons in the state is essential to
the ac-uisition of +urisdiction over him.
SERVICE UPON PRISONERS AND MINORS
O( # "(2-. Service shall be made on him
personally and on his legal guardian if he has
one, or if none, upon his guardian "' ite$ whose
appointment shall be applied for by the plainti/,
or upon a person e'ercising parental authority
over him, but the court may order that service
made on a minor of %5 or more years of age shall
be su5cient (Sec. 1.);
O( 9-"s2(e-s= t shall be made upon him
(!risoner ) by serving on the o5cer ( %eco$es the
'e!ut+ sheri7 ) having the management of the +ail
or institution who is deemed deputi6ed as a
special sheri/ for said purpose (Sec. 9).
f served by the sheri/, his deputy, or other
proper court o5cer, there is no need to be sworn
but this is needed if served by other persons.
PROOF OF SERVICE
0hen the service has been completed, the server
shall, within fve (5) days therefrom, serve a copy
of the return, personally or by registered mail, to
the plainti/Ds counsel, and shall return the
summons to the cler2 who issued it, accompanied
by proof of service (Sec. 9, *ue 19).
&he proof of service of summons shall be made in
writing by the server and shall set forth the
manner, place and date of service# shall specify
any papers which have been served with the
process and the name of the person who received
the same# and shall be sworn to when made by a
person other than a sheri/ or his deputy (Sec.
1=).
f the service has been made by publication,
service may be proved by the a5davit of the
printer, his foreman or principal cler2, or of the
editor, business or advertising manager, to which
a5davit a copy of the publication shall be
attached and by an a5davit showing the deposit
of a copy of the summons and order for
publication in the post o5ce, postage prepaid,
directed to the defendant by registered mail to
his last 2nown address (Sec. 19).
49
MOTIONS .Rule 160
MOTIONS IN GENERAL/ DEFINITION OF
MOTION
A motion is an application for relief other than by
a pleading (Sec. 1, *ue 15).
MOTIONS VERSUS PLEADINGS
A pleading is a written statement of the
respective claims and defenses of the parties
submitted to the court for appropriate +udgment
(Sec. 1, *ue <). t may be in the form of a
complaint, counterclaim, cross.claim, third.party
complaint, or complaint.in.intervention, answer
or reply (Sec. 2, *ue <).
A motion on the other hand is an application for
relief other than a pleading (Sec. 1, *ue 15).
A motion is not a pleading, even when reduced to
writing# it relates generally to procedural matters,
unli2e pleadings which generally states
substantial -uestions. ;oreover, a motion is not
an independent remedy, and thus cannot replace
an action to enforce a legal right.
CONTENTS AND FORM OF MOTIONS
A motion shall state the order sought to be
obtained, and the grounds which it is based, and
if necessary shall be accompanied by supporting
a5davits and other papers (Sec. 3).
All motions must be in writing e'cept those made
in open court or in the course of a hearing or trial
(Sec. 2).
NOTICE OF %EARING AND %EARING OF
MOTIONS
9'cept for motions which the court may act upon
without pre+udicing the rights of the adverse
party, every written motion shall be set for
hearing by the applicant.
&he motion which contains the notice of hearing
shall be served as to ensure its receipt by the
other party at least three ()) days before the date
of hearing, unless the court for good cause sets
the hearing on shorter notice. t shall be
addressed to all parties concerned, and shall
specify the time and date of the hearing which
must not be later than ten (%F) days after the
fling of the motion (Sec. 9, *ue 15).
OMNIBUS MOTION RULE
&he rule is a procedural principle which re-uires
that every motion that attac2s a pleading,
+udgment, order or proceeding shall include all
grounds then available, and all ob+ections not so
included shall be deemed waived (Sec. =).
Since the rule is sub+ect to the provisions of Sec.
1, *ue 9, the ob+ections mentioned therein are
not deemed waived even if not included in the
motion. &hese ob+ections are"
a) that the court has no +urisdiction over the
sub+ect matter,
b) that there is another action pending
between the same parties for the same
cause (litis pendencia),
c) that the action is barred by a prior
+udgment (res +udicata), and
d) that the action is barred by the statute of
limitations (prescription) (Sec. 1, !"r. 2,
*ue 9).
9ven if a motion to dismiss was fled and the
issue of +urisdiction was not raised therein, a
party may, when he fles an answer, raise the
lac2 of +urisdiction as an a5rmative defense
because this defense is not barred under the
omnibus motion rule.
A motion to dismiss is a typical e'ample of a
motion sub+ect to omnibus motion rule, since a
motion to dismiss attac2s a complaint which is a
pleading.
>nder the o$ni%us $otion rue , a motion
attac2ing a pleading li2e a motion to dismiss shall
include all grounds then available and all
ob+ections not so included shall be deemed
waived. t can no longer be invo2ed as a5rmative
defense in the answer which the movant may fle
following the denial of his motion to dismiss. &he
defense of lac2 of +urisdiction over the sub+ect
matter is however, a defense not barred by the
failure to invo2e the same in a motion to dismiss
already fled.
LITIGATED AND EX PARTE MOTIONS
A l"'":#'e! 2'"2( is one which re-uires the
parties to be heard before a ruling on the motion
is made by the court. Sec. 9 establishes the
general rule that every written motion is deemed
a litigated motion. A motion to dismiss (*ue 1<),
a motion for +udgment for the pleadings (*ue
39), and a summary +udgment (*ue 35), are
litigated motions.
An e? 9#-'e 2'"2( is one which does not
re-uire that the parties be heard, and which the
50
court may act upon without pre+udicing the rights
of the other party. &his 2ind of motion is not
covered by the hearing re-uirement of the ,ules
(Sec. 2). An e'ample of an e' parte motion is that
one fled by the plainti/ pursuant to Sec. 1, *ue
1=, in which he moves promptly that the case be
set for !re/tri". A $otion for e#tension of time is
an e' parte motion made to the court in behalf of
one or the other of the parties to the action, in
the absence and usually without the 2nowledge
of the other party or parties. 9' parte motions are
fre-uently permissible in procedural matters, and
also in situations and under circumstances of
emergency# and an e'ception to the rule
re-uiring notice is sometimes made where notice
or the resulting delay might tend to defeat the
ob+ective of the motion.
M2'"2( 28 12u-se 7 a motion for a certain 2ind of
relief or remedy to which the movant is entitled
as a matter of right, and not as a matter of
discretion on the part of the court. ;oreover, the
allegations contained in such a motion do not
have to be investigated or verifed. An e'ample
would be a $otion ?e' out of ti$e, because this
motion may be disposed of the court on its own
initiative. Another e'ample would be a $otion to
se cert"in !ro!ert+ "fter the !erio' 3i6en %+ the
court to the 'e%tor to !"+ h"s e"!se', and such
previous order had specifed that the property be
sold in case of default.
S9e1"#l 2'"2( 7 the opposite of a motion of
course, here the discretion of the court is
involved# usually an investigation of the facts
alleged is re-uired.
PRO*FORMA MOTIONS
&he !ourt has consistently held that a motion
which does not meet the re-uirements of
Sections 9 "n' 5 of *ue 15 on hearing and notice
of the hearing is a mere scrap of paper, which the
cler2 of court has no right to receive and the trial
court has no authority to act upon and one which
will be treated as a motion intended to delay the
proceedings. Service of a copy of a motion
containing a notice of the time and the place of
hearing of that motion is a mandatory
re-uirement, and the failure of movants to
comply with these re-uirements renders their
motions fatally defective.
MOTIONS FOR BILL OF PARTICULARS
.RULE 120
PURPOSE AND W%EN APPLIED FOR
&he purpose of the motion is to see2 an order
from the court directing the pleader to submit a
bill of particulars which avers matters with
su5cient defnitiveness or particularity to enable
the movant to prepare his responsive pleading
(Sec. 1, *ue 12), not to enable the movant to
prepare for trial. &he latter purpose is the
ultimate ob+ective of the discovery procedures
from *ues 23 to 29 and ever of a pre.trial under
*ue 1=.
n other words, the function of a bill of particulars
is to clarify the allegations in the pleading so an
adverse party may be informed with certainty of
the e'act character of a cause of action or a
defense. 0ithout the clarifcations sought by the
motion, the movant may be deprived of the
opportunity to submit an intelligent responsive
pleading.
&his is to avert the danger where the opposing
party will fnd di5culty in s-uarely meeting the
issues raised against him and plead the
corresponding defenses which if not timely raised
in the answer will be deemed waived.
A motion for a bill of particulars is to be fled
before, not after responding to a pleading (Sec. 1,
*ue 12). &hus, where the motion for bill of
particulars is directed to a complaint, the motion
should be fled within ffteen (%5) days after
service of summons. f the motion is directed to a
counterclaim, then the same must be fled within
ten (%F) days from service of the counterclaim
which is the period provided for by Sec. 9, *ue
11 to answer a counterclaim.
n case of a reply to which no responsive pleading
is provided for by the ,ules, the motion for bill of
particulars must be fled within ten (%F) days of
the service of said reply (Sec. 1, *ue 12).
ACTIONS OF T%E COURT
>pon receipt of the motion which the cler2 of
court must immediately bring to the attention of
the court, the latter has three possible options,
namely"
%) to deny the motion outright,
() to grant the motion outright or
)) to hold a hearing on the motion.
COMPLIANCE WIT% T%E ORDER AND
EFFECT OF NON*COMPLIANCE
f a motion for bill of particulars is granted, the
court shall order the pleader to submit a bill of
particulars to the pleading to which the motion is
directed. &he compliance shall be e/ected within
51
ten (%F) days from notice of the order, or within
the period f'ed by the court (Sec. 3, *ue 12).
n complying with the order, the pleader may fle
the bill of particulars either in a separate pleading
or in the form or an amended pleading (Sec. 3,
*ue 12). &he bill of particulars submitted
becomes part of the pleading for which it is
intended (Sec. <, *ue 12).
I8 '7e 2-!e- '2 Hle # &"ll 28 9#-'"1ul#-s "s (2'
2&e5e!, or in case of insu5cient compliance
therewith, the court may"
a) order the stri2ing out of the pleading# or
b) the portions thereof to which the order
was directed# or
c) ma2e such other order as it deems +ust
(Sec. 9).
EFFECT ON T%E PERIOD TO FILE A
RESPONSIVE PLEADING
A motion for bill of particulars is not a pleading
hence, not a responsive pleading. 0hether or not
his motion is granted, the movant may fle his
responsive pleading. 0hen he fles a motion for
$A3, the period to fle the responsive pleading is
stayed or interrupted.
After service of the bill of particulars upon him or
after notice of the denial of his motion, he may
fle his responsive pleading within the period to
which he is entitled to at the time the motion for
bill of particulars is fled. f he has still eleven (%%)
days to fle his pleading at the time the motion
for $A3 is fled, then he has the same number of
days to fle his responsive pleading from the
service upon him of the $A3.
f the motion is denied, then he has the same
number of days within which to fle his pleading
counted from his receipt of the notice of the order
denying his motion. f the movant has less than
fve (5) days to fle his responsive pleading after
service of the bill of particulars or after notice of
the denial of his motion, he nevertheless has fve
(5) days within which to fle his responsive
pleading. (Sec.5, *ue 12).
A seasonable motion for a bill of particulars
interrupts the period within which to answer. After
service of the bill of particulars or of a more
defnite pleading, or after notice of denial of his
motion, the moving party shall have the same
time to serve his responsive pleading, if any is
permitted by the rules, as that to which he was
entitled at the time of serving his motion, but no
less than fve (5) days in any event.
MOTION TO DISMISS .RULE 1@0
A motion to dismiss is not a pleading. t is
merely a motion. t is an application for relief
other than by a pleading (Sec. 1, *ue 15).
&he pleadings allowed under the ,ules are"
a) complaint, (b) answer, (c)
counterclaim, (d) cross.claim, (e) third
(fourth, etc.) 7party complaint, (f)
complaint in intervention (Sec. 2, *ue
<), and reply (Sec. 1., *ue <). A
motion is not one of those specifcally
designated as a pleading.
=ailure to state a cause of action
GROUNDS
>nder Sec. 1, *ue 1<, a motion to dismiss may
be fled on any of the following grounds"
a) Gac2 of +urisdiction over the person of the
defending party#
b) Gac2 of +urisdiction over the sub+ect matter
of the claim#
c) &he venue is improperly laid#
d) &he plainti/ has no legal capacity to sue#
e) &here is another action pending between
the same parties and for the same cause
(is !en'ens);
f) &he cause of action is barred by a prior
+udgment (res &u'ic"t") or by the statute
of limitations (prescription)#
g) &he 9le#!"(: #sse-'"(: '7e 1l#"
s'#'es (2 1#use 28 #1'"2(#
h) &he claim or demand has been paid,
waived, abandoned, or otherwise
e'tinguished#
i) &he claim on which the action is founded
is unenforceable under the provisions of
the statute of frauds# and
+) A condition precedent for fling the action
has not been complied with.
&he language of the rule, particularly on the
relation of the words MabandonedN and Motherwise
e'tinguishedN to the phrase Mclaim or demand
deemed set forth in the plainti/@s pleadingN is
broad enough to include within its ambit the
defense of bar by laches.
4owever, when a party moves for the dismissal of
the complaint based on laches, the trial court
must set a hearing on the motion where the
parties shall submit not only their arguments on
the -uestions of law but also their evidence on
the -uestions of fact involved. &hus, being factual
in nature, the elements of laches must be proved
or disproved through the presentation of
evidence by the parties.
52
RESOLUTION OF MOTION
After the hearing, the court may dismiss the
action or claim, deny the motion, or order the
amendment of the pleading. &he court shall not
defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. n
every case, the resolution shall state clearly and
distinctly the reasons therefor (Sec. 3).
REMEDIES OF PLAINTIFF W%EN T%E
COMPLAINT IS DISMISSED
0here the dismissal is fnal but is without
pre+udice (interlocutory), the plainti/ may simply
-e*Hle the action depending upon the ground for
the dismissal of the action. =or instance, if the
ground for dismissal was anchored on improper
venue, the plainti/ may fle the action in the
proper venue.
0here the dismissal is fnal and it bars the re.
fling of the case, he may #99e#l from the order
of dismissal where the ground relied upon is one
which bars the refling of the complaint li2e res
&u'ic"t" , prescription, e'tinguishment of the
obligation or violation of the statute of frauds
(Sec. 5, *ue 1<).
Since the complaint cannot be refled, the
dismissal is with pre+udice. En'er Sec. 1[h], *ue
91, it is an order dismissing an action without
pre+udice which cannot be appealed from.
!onversely, where the dismissal is with pre+udice,
an appeal from the order of dismissal is not
precluded.
0here the dismissal is without pre+udice and the
court gravely abused its discretion in doing so,
the plainti/ may resort to certiorari (Sec. 1, *ue
91).
REMEDIES OF T%E DEFENDANT W%EN T%E
MOTION IS DENIED
%) F"le #(s$e- $"'7"( '7e &#l#(1e 28 '7e
9e-"2! prescribed by *ue 11 to which he was
entitled at the time of serving his motion, but
not less than fve (5) days in any event (Sec.
9, *ue 1<).
As a rule, the fling of an answer, going
through the usual trial process, and
the fling of a timely appeal from an
adverse +udgment are the proper
remedies against a denial of a motion
to dismiss.
&he fling of an appeal from an order
denying a motion to dismiss is not the
remedy prescribed by e'isting rules.
&he order of denial, being interlocutory
is not appealable (Sec 1[c], *ue 9).
() C")"l #1'"2( u(!e- Rule @6 (+ertiorari)
n order to +ustify the grant of the
e'traordinary remedy of certiorari, the
must be a showing that the denial of
the motion was tainted with grave
abuse of discretion amounting to lac2
of +urisdiction. 0ithout such showing,
,ule 85 cannot be availed of as a
remedy.
&he general rule is that the denial of a
motion to dismiss cannot be
-uestioned in a special civil action for
certiorari which is a remedy designed
to correct errors of +urisdiction and not
errors of +udgment. <either can a
denial of a motion to dismiss be the
sub+ect of an appeal unless and until a
fnal +udgment or order is rendered.
A writ of certiorari is not intended to
correct every controversial
interlocutory ruling. t is resorted to
only to correct a grave abuse of
discretion or a whimsical e'ercise of
+udgment e-uivalent to lac2 of
+urisdiction. ts function is limited to
2eeping an inferior court within its
+urisdiction and to relieve persons from
arbitrary acts, acts which courts or
+udges have no power or authority in
law to perform. t is not designed to
correct erroneous fndings and
conclusions made by the courts.
30 F"le #( #99e#l
&his remedy is appropriate in the
instances where the defendant is barred
from refling the same action of claim if
the dismissal is based on the following
grounds"
a) &he cause of action is barred by a
prior +udgment
b) &he cause of action is barred by
the statute of limitations
c) &he claim or demand has been
paid, waived, abandoned or
otherwise e'tinguished
d) &he claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds.
*) &he denial of a motion to dismiss is
interlocutory, hence, the remedy is to fle an
53
answer, proceed to trial, and await +udgment
before interposing an appeal.
&he denial should be raised as an error
of the trial court on appeal.
EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS
0hen the complaint is dismissed on the grounds
of"
a) prior +udgment
b) by the statute of limitations
c) payment, waiver, abandonment or
e'tinguishment of the claim
d) unenforceability of the cause of action
under the statute of frauds
the dismissal shall bar the refling of
the same action or claim, but this is
without pre+udice to the right of the
other party to appeal from the order of
dismissal because such dismissal is a
fnal order, not merely interlocutory
(Sec. 5).
W%EN GROUNDS PLEADED AS
AFFIRMATIVE DEFENSES
f no motion to dismiss has been fled, any of the
grounds provided for dismissal may be pleaded
as an a5rmative defense in the answer and, in
the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss has
been fled (Sec. <, *ue 1<).
mplied under Sec. <, *ue 1< is that the grounds
for a motion to dismiss are not waived even if the
defendant fails to fle a motion to dismiss
because he may still avail of the defenses under
*ue 1< as a5rmative defenses in his answer.
As a rule, a preliminary hearing is not authori6ed
when a motion to dismiss has been fled. An
e'ception previously carved out as if the trial
court had not categorically resolved the motion to
dismiss. Another e'ception would be +ustifed
under the liberal construction rule as when it is
evident that the action is barred by res +udicata. A
strict application of Sec. < would accordingly lead
to absurdity when an obviously barred complaint
continues to be litigated. &he denial of a motion
to dismiss does not preclude any future reliance
on the grounds relied thereupon.
BAR BY DISMISSAL
,es +udicata as a ground for dismissal is based on
two grounds, namely"
%) public policy and necessity, which ma2es
it to the interest of the State that there
should be an end to litigation (re!u%ic"e
ut sit itiu$)# and
() the hardship on the individual of being
ve'ed twice for the same cause (ne$o
'e%et %is 6e#"ri et e"'e$ c"us").
Accordingly, courts will simply refuse to reopen
what has been decided. &hey will not allow the
same parties or their privies to litigate anew a
-uestion once it has been considered and
decided with fnality. Gitigations must end and
terminate sometime and somewhere. &he
e/ective and e5cient administration of +ustice
re-uires that once a +udgment has become fnal,
the prevailing party should not be deprived of the
fruits of the verdict by subse-uent suits on the
same issues fled by the same parties.
Res ;u!"1#'# 129-e7e(!s '$2 !"s'"(1'
12(1e9'sB
#0 &#- &5 # 82-e- ;u!:e('
bars the prosecution of a second
action upon the same claim, demand
or cause of action.
&0 12(1lus")e(ess 28 ;u!:e('
a fact or -uestion which was in issue in
a former suit and was there +udicially
passed upon and determined by a
court of competent +urisdiction, is
conclusively settled by the +udgment
therein as far as the parties to that
action and persons in privity with them
are concerned and cannot be again
litigated in any future action between
such parties or their privies, in the
same court or any other court of
concurrent +urisdiction on either the
same or di/erent cause of action,
while the +udgment remains
unreversed by proper authority.
DISTINGUIS%ED FROM DEMURRER TO
EVIDENCE .RULE 330
?emurrer to evidence is a motion to dismiss fled
by the defendant after the plainti/ had rested his
case on the ground of insu5ciency of evidence. t
may be fled after the plainti/ has completed the
presentation of his evidence. t is an aid or
instrument for the e'peditious termination of an
action similar to a motion to dismiss, which the
court or tribunal may either grant or deny.
D"s'"(1'"2(sB
a) A motion to dismiss should be fled within
the time for but prior to the fling of the
answer of the defending party to the
pleading asserting the claim against him#
a demurrer to evidence may be fled only
54
after the plainti/ has completed the
presentation of his evidence.
b) A motion to dismiss is anchored on
preliminary ob+ections# a demurrer is
anchored on one groundUinsu5ciency of
evidence# and
c) f a motion to dismiss is denied, the
defendant may fle his responsive pleading
(answer) or else he may declared in
default and if granted, plainti/ may appeal
or if subse-uent case is not barred, he
may re.fle the case.
d) n a demurrer, if denied, the defendant
may present his evidence and if granted,
plainti/ appeals and the order of dismissal
is reversed, the defendant loses his right
to present evidence.
,ule %J is based on allegations# while ,ule )) is
based on evidence
DISMISSAL OF ACTIONS .Rule 170
%) DISMISSAL UPON NOTICE BY PLAINTIFF
At any time before the service of an
answer or the service of a motion for
summary +udgment, a complaint may be
dismissed by the plainti/ by fling a notice
of dismissal. >pon the fling of the notice
of dismissal, the court shall issue an order
confrming the dismissal (Sec. 1, *ue 1;).
&his dismissal shall be without pre+udice to
the re.fling of the complaint, e'cept
when"
%) &he notice of dismissal provides
that the dismissal is with pre+udice#
or
() &he plainti/ has previously
dismissed the same case in a court
of competent +urisdiction.

t is not the order confrming the dismissal
which operates to dismiss the complaint.
As the name of the order implies, said
order merely confrms a dismissal already
e/ected by the fling of the notice of
dismissal. &he court does not have to
approve the dismissal because it has no
discretion on the matter. $efore an answer
or a motion for summary +udgment has
been served upon the plainti/, the
dismissal by the plainti/ by the fling of
the notice is a matter of right. &he
dismissal occurs as of the date of the
notice is fled by the plainti/ and not the
date the court issues the order confrming
the dismissal.
&he dismissal as a matter of right ceases
when an answer or a motion for summary
+udgment is served on the plainti/ and not
when the answer or the motion is fled
with the court. &hus, if a notice of
dismissal is fled by the plainti/ even after
an answer has been fled in court but
before the responsive pleading has been
served on the plainti/, the notice of
dismissal is still a matter of right.
TWO*DISMISSAL RULE
&he two.dismissal rule applies when the plainti/
has"
a) twice dismissed actions#
b) based on or including the same claim# and
c) in a court of competent +urisdiction.
&he second notice of dismissal will bar
the refling of the action because it will
operate as an ad+udication of the claim
upon the merits.
20 DISMISSAL UPON MOTION BY PLAINTIFF
Ance either an answer or motion for
summary +udgment has been served on
the plainti/, the dismissal is no longer a
matter of right and will re-uire the fling of
a motion to dismiss, not a mere notice of
dismissal.
&he motion to dismiss will now be sub+ect
to the approval of the court which will
decide on the motion upon such terms and
conditions as are +ust (Sec. 2, *ue 1;)
unless otherwise specifed in the order,
the dismissal shall be without pre+udice. .
&he dismissal under Sec. 2 is no longer a
matter of right on the part of the plainti/
but a matter of discretion upon the court.
EFFECT OF DISMISSAL UPON EXISTING
COUNTERCLAIM
f a counterclaim has already been pleaded by
the defendant prior to the service upon him of
the plainti/@s motion to dismiss, and the court
grants said motion to dismiss, the dismissal Mshall
be limited to the complaintN (Sec. 2, *ue 1;).
&he dismissal of the complaint does not carry
with it the dismissal of the counterclaim, whether
it is a compulsory or a permissive counterclaim
because the rule ma2es no distinction. &he
defendant, if he so desires may prosecute his
counterclaim either in a separate action or in the
55
same action. Should he choose to have his
counterclaim resolved in the same action, he
must notify the court of his preference within
ffteen (%5) days from the notice of the plainti/Ds
motion to dismiss. Should he opt to prosecute his
counterclaim in a separate action, the court
should render the corresponding order granting
and reserving his right to prosecute his claim in a
separate complaint.
DISMISSAL DUE TO T%E FAULT OF
PLAINTIFF
A complaint may be dismissed by the court $otu
!ro!rio or upon a motion fled by the defendant.
&he dismissal is this case will be through reasons
attributed to his fault.
Sec. 2, *ue 1; provides the following grounds for
dismissal"
a) =ailure of the plainti/, without +ustifable
reasons, to appear on the date on the date
of the presentation of his evidence in
chief#
b) =ailure of the plainti/ to prosecute his
action for an unreasonable length of time#
c) =ailure of the plainti/ to comply with the
,ules of !ourt#
d) =ailure of the plainti/ to obey any order of
the court#
e) =ailure to appear at the trial# or
f) Gac2 of +urisdiction.
&he dismissal shall have the e/ect of an
ad+udication upon the merits and is thus with
pre+udice to the re.fling of the action, unless the
court declares otherwise.
DISMISSAL OF COUNTERCLAIM/ CROSS*
CLAIM OR T%IRD*PARTY COMPLAINT
&he rule on the dismissal of a complaint applies
to the dismissal of any counterclaim, cross.claim,
or third.party claim.
A voluntary dismissal by the claimant alone by
notice pursuant to Sec. 1, *ue 1; shall be made
before a responsive pleading or a motion for
summary +udgment is served or, if there is none,
before the introduction of evidence at the trial or
hearing (Sec. 9).
PRE*TRIAL .Rule1C0
CONCEPT OF PRE*TRIAL
3re.trial is a mandatory conference and personal
confrontation before the +udge between the
parties and their respective counsel.
t is conducted after the last pleading has been
served and fled, it shall be the duty of the
plainti/ to promptly move e' parte that the case
be set for pre.trial ()ithin 5 '"+s fro$ the "st
!e"'in3 h"s %een ?e').
NATURE AND PURPOSE
&he conduct of a pre.trial is mandatory. 3re.trial
is a procedural device intended to clarify and limit
the basic issues between the parties. t thus
paves the way for a less cluttered trial and
resolution of the case. ts main ob+ective is to
simplify, abbreviate and e'pedite trial, or totally
dispense with it.
t is a basic precept that the parties are bound to
honor the stipulations made during the pre.trial.
&he court shall consider the following maters in
the pre.trial"
%) &he possibility of an amicable settlement
or a submission to alternative modes of
dispute resolution#
() Simplifcation of issues#
)) <ecessity or desirability of amendments to
the pleadings#
*) 3ossibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof#
5) Gimitation of the number of witnesses#
8) Advisability of a preliminary reference of
issues to a commissioner#
J) 3ropriety of rendering +udgment on the
pleadings, or summary +udgment, or of
dismissing the action should a valid
ground therefor be found to e'ist#
K) Advisability or necessity of suspending the
proceedings# and
E) Ather matters as may aid in the prompt
disposition of the action (Sec. 2, *ue 1=).
NOTICE OF PRE*TRIAL
&he notice of pre.trial shall be served on the
counsel of the party if the latter is represented by
counsel. Atherwise, the notice shall be served on
the party himself. &he counsel is charged with the
duty of notifying his client of the date, time and
place of the pre.trial (Sec. 3, *ue 1=).
<otice of pre.trial is so important that it would be
grave abuse of discretion for the court for
e'ample, to allow the plainti/ to present his
evidence e' parte for failure of the defendant to
56
appear before the pre.trial who did not receive
through his counsel a notice of pre.trial.
n one case, the S! said that there is no legal
basis for a court to consider a party notifed of
the pre.trial and to consider that there is no
longer a need to send notice of pre.trial merely
because it was his counsel who suggested the
date of pre.trial.
f the plainti/ failed to move for pre.trial, the
cler2 of court shall do so.
APPEARANCE OF PARTIESJ EFFECT OF
FAILURE TO APPEAR
t shall be the duty of both the parties and their
counsels to appear at the pre.trial (Sec. 9, *ue
1=).
T7e 8#"lu-e 28 '7e 9l#"('"D '2 #99e#- s7#ll &e
1#use 82- '7e !"s"ss#l 28 '7e #1'"2(. &his
dismissal shall be with pre+udice e'cept when the
court orders otherwise (Sec. 5, *ue 1=). Since
the dismissal of the action shall be with pre+udice,
unless otherwise provided, the same shall have
the e/ect of an ad+udication on the merits thus,
fnal. &he remedy of the plainti/ is to appeal from
the order of dismissal. An order dismissing an
action with pre+udice is appealable. >nder the
,ules, it is only when the order of dismissal is
without pre+udice, that appeal cannot be availed
of (Sec. 1[h], *ue 91). Since appeal is available,
certiorari is not the remedy because the
application of a petition for certiorari under *ue
<5 is conditioned upon the absence of appeal or
any plain, speedy and ade-uate remedy (Sec. 1,
*ue <5).
T7e 8#"lu-e 28 '7e !e8e(!#(' '2 #99e#- s7#ll
&e 1#use '2 #ll2$ '7e 9l#"('"D '2 9-ese(' 7"s
e)"!e(1e e? 9#-'e #(! 82- '7e 12u-' '2
-e(!e- ;u!:e(' 2( '7e &#s"s 28 '7e
e)"!e(1e 9-ese('e! &5 '7e 9l#"('"D (Sec. 5,
*ue 1=). &he order of the court allowing the
plainti/ to present his evidence e' parte does not
dispose of the case with fnality. &he order is
therefore, merely interlocutory# hence, not
appealable. >nder Sec. 1(c) of *ue 91, no appeal
may be ta2en from an interlocutory order. &he
defendant who feels aggrieved by the order may
move for the reconsideration of the order and if
the denial is tainted with grave abuse of
discretion, he may fle a petition for certiorari.
PRE*TRIAL BRIEFJ EFFECT OF FAILURE TO
FILE
&he parties shall fle with the court their
respective pre.trial briefs which shall be received
at least three ()) days before the date of the pre.
trial. &his pre.trial brief shall be served on the
adverse party (Sec. <, *ue 1=).
&he pre.trial brief shall contain the following
matters"
%) A statement of their willingness to enter
into an amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof#
() A summary of admitted facts and
proposed stipulation of facts#
)) &he issues to be tried or resolved#
*) &he documents or e'hibits to be
presented, stating the purposes thereof#
5) A manifestation of their having availed of
or their intention to avail of discovery
procedures or referral to commissioners#
and
8) &he number and names of the witnesses,
and the substance of their respective
testimonies (Sec.<, *ue 1=).
=ailure to fle the pre.trial brief shall have the
same e/ect as failure to appear at the pre.
trial.
a. f it is the plainti/ who fails to fle a
pre.trial brief, such failure shall be
cause for dismissal of the action.
b. f it is the defendant who fails to do so,
such failure shall be cause to allow the
plainti/ to present his evidence e'
parte.
A pre.trial brief is not re-uired in a criminal
case.
DISTINCTION BETWEEN PRE*TRIAL IN CIVIL
CASE AND PRE*TRIAL IN CRIMINAL CASE
&he pre.trial in a civil case is set when the
plainti/ moves e' parte to set the case for pre.
trial (Sec.1, *ue 1=). &he pre.trial in criminal
case is ordered by the court and no motion to set
the case for pre.trial is re-uired from either the
prosecution or the defense (Sec. 1, *ue 11=).
&he motion to set the case for pre.trial in a civil
case is made after the last pleading has been
served and. n a criminal case, the pre.trial is
ordered by the court after arraignment and within
thirty ()F) days from the date the court ac-uires
+urisdiction over the person of the accused.
&he pre.trial in a civil case considers the
possibility of an amicable settlement as an
important ob+ective. &he pre.trial in a criminal
case does not include the considering of the
57
possibility of amicable settlement of criminal
liability as one of its purposes.
n a civil case, the agreements and admissions
made in the pre.trial are not re-uired to be
signed by the parties and their counsels. &hey are
to be contained in the record of pre.trial and the
pre.trial order (Sec. ;, *ue 1=). n a criminal
case, all agreements or admissions made or
entered during the pre.trial conference shall be
reduced in writing and signed by the accused and
counsel# otherwise, they cannot be used against
the accuse (Sec. 2, *ue 11=).
&he sanctions for non.appearance in a pre.trial
are imposed upon the plainti/ or the defendant in
a civil case. &he sanctions in a criminal case are
imposed upon the counsel for the accused or the
prosecutor.
CIVIL PRE*TRIAL CRIMINAL PRE*TRIAL
;andatory ;andatory
3resence of defendant
and counsel
mandatory
Accused need not be
present, but his
counsel must be
present, otherwise he
may be sanctioned
Amicable settlement is
discussed
Amicable settlement is
not discussed, unless
the criminal case is
covered by summary
procedure
Agreement included in
pre.trial order need
not be in writing
Agreements or
admissions must be
written and signed by
the accused and
counsel to be
admissible against
him.
ALTERNATIVE DISPUTE RESOLUTION .ADR0
%) f the case has already fled a complaint
with the trial court without prior recourse
to arbitration, the proper procedure to
enable an arbitration panel to resolve the
parties dispute pursuant to the contract is
for the trial court to stay the proceedings.
After the arbitration proceeding has
already been pursued and completed,
then the trial court may confrm the award
made by the arbitration panel.
A party has several +udicial remedies available at
its disposal after the Arbitration !ommittee
denied its ;otion for ,econsideration"
%) t may petition the proper ,&! to issue an
order vacating the award on the grounds
provided for under Sec. 29 of the
Ar%itr"tion 5");
() =ile a petition for review under *ue 93
with the !ourt of Appeals on -uestions of
fact, of law, or mi'ed -uestions of fact and
law (Sec. 91, A4*);
)) =ile a petition for certiorari under *ue <5
on the ground that the Arbitration
!ommittee acted without or in e'cess of
its +urisdiction or with grave abuse of
discretion amounting to lac2 or e'cess of
+urisdiction.
INTERVENTION .Rule 1A0
ntervention is a legal proceeding by which a
person who is not a party to the action is
permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and re-uirements set by the ,ules.
&his third person who intervenes is one who is not
originally impleaded in the action.
ntervention is merely a collateral or accessory or
ancillary to the principal action ad not an
independent proceeding. 0ith the fnal dismissal
of the original action, the complaint in
intervention can no longer be acted upon.
RE<UISITES FOR INTERVENTION
%) &here must be a motion for intervention fled
before rendition of +udgment by the trial
court. A motion is necessary because leave of
court is re-uired before a person may be
allowed to intervene.
() &he movant must show in his motion that he
has"
a) A legal interest in the matter in litigation,
the success of either of the parties in the
action, or against both parties#
b) &hat the movant is so situated as to be
adversely a/ected by a distribution or
other disposition of property in the
custody of the court or of an o5cer
thereof# and
c) &hat the intervention must not only unduly
delay or pre+udice the ad+udication of the
rights of the original parties and that the
intervenor@s rights may not be fully
protected in a separate proceeding.
58
d) &he intervenor@s rights may not be fully
protected in a separate proceeding.
TIME TO INTERVENE
&he motion to intervene may be fled at any time
before the rendition of +udgment by the trial court
(Sec. 2, *ue 1=) . ntervention after trial and
decision can no longer be permitted.
REMEDY FOR T%E DENIAL OF MOTION TO
INTERVENTION
%) &he appellate court may e'ercise sound
+udicial discretion
() An indispensable party can intervene even
after the rendition of +udgment
)) &he remedy of the aggrieved party is appeal.
;andamus will not lie e'cept in case of grave
abuse of discretion and if there is no other
plain, speedy and ade-uate remedy.
SUBPOENA .Rule 210
!ourt cannot issue subpoena absent any action
Subpoena is a process directed to a person
re-uiring him to attend and to testify at the
hearing or the trial of an action, or at any
investigation conducted under the laws of the
3hilippines, or for ta2ing of his deposition (Sec. 1,
*ue 21).
SUBPOENA DUCES TECUM . is a process
directed to a person re-uiring him to bring
with him at the hearing or trial of an action
any boo2s, documents, or other things under
his control.
SUBPOENA AD TESTIFICANDUM 7 is a
process directed to a person re-uiring him to
attend and testify at the hearing or the trial of
the action, or at any investigation conducted
by the competent authority, or for the ta2ing
of his deposition.
SERVICE OF SUBPOENA
t shall be made in the same manner as personal
or substituted service of summons.
%) &he original shall be e'hibited and a copy
thereof delivered to the person on whom it
is served.
() &endering to him the fees for one dayDs
attendance and the 2ilometrage allowed
by the ,ules, e'cept that when a
subpoena is issued by or on behalf of the
,epublic, or an o5cer or agency thereof,
the tender need not be made.
)) &he service must be made so as to allow
the witness a reasonable time for
preparation and travel to the place of
attendance.
*) f the subpoena is 'uces tecu$, the
reasonable cost of producing the boo2s,
documents or things demanded shall also
be tendered.
Service of a subpoena shall be made by the
sheri/, by his deputy, or by any other person
specially authori6ed, who is not a party and is not
less than eighteen (%K) years of age (Sec. <, *ue
21).
COMPELLING ATTENDANCE OF WITNESSESJ
CONTEMPT
n case of failure of a witness to attend, the court
or +udge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness,
may issue a warrant to the sheri/ of the province,
or his deputy, to arrest the witness and bring him
before the court or o5cer where his attendance is
re-uired, and the cost of such warrant and
sei6ure of such witness shall be paid by the
witness if the court issuing it shall determine that
his failure to answer the subpoena was wilful and
without +ust cause (Sec. =).
=ailure by any person without ade-uate cause to
obey a subpoena served upon him shall be
deemed a contempt of the court from which the
subpoena is issued. f the subpoena was not
issued by a court, the disobedience thereto shall
be punished in accordance with the applicable
law or ,ule (Sec. 9).
9'ceptions"
a) 0here the witness resides more than one
hundred (%FF) 2ilometers from his
residence to the place where he is to
testify by the ordinary course of travel
(Vi"tor+ *i3ht), or
b) 0here the permission of the court in which
the detained prisoner@s case is pending
was not obtained.
<UAS%ING OF SUBPOENA
&he court may -uash a subpoena duces tecum
upon motion promptly made and, in any event, at
or before the time specifed therein"
a) if it is unreasonable and oppressive, or
b) the relevancy of the boo2s, documents or
things does not appear, or
59
c) if the person is whose behalf the subpoena
is issued fails to advance the reasonable
cost of the production thereof.
(ubpoena ad testi#candum may be -uashed
on the ground that the witness is <A& $A><?
&49,9$O. n either case, the subpoena may be
-uashed on the ground that the witness fees and
2ilometrage ()ithin 1.. :io$etr"3e uness the
)itness $"+%e cite' in'irect conte$!t) allowed
by the ,ules were not tendered when the
subpoena was served.
MODES OF DISCOVERY .Rules 23 *2C0
Oou can use this at any stage of the
proceeding# applicable also in special
proceedings
0ritten interrogatories to parties is used only
for the purpose of calling the defendant to the
witness stand
MODES OF DISCOVERY
%) ?epositions pending action (*ue 23);
() ?epositions before action or pending
appeal (*ue 29);
)) nterrogatories to parties (*ue 25)
*) Admission by adverse party (*ue 2<);
5) 3roduction or inspection of documents and
things (*ue 2;); and
8) 3hysical and mental e'amination of
persons (*ue 2=).
&he importance of the rules of discovery is that
they shorten the period of litigation and speed up
ad+udication. &he evident purpose is to enable
the parties, consistent with recogni6ed principles,
to obtain the fullest possible 2nowledge of the
facts and issues before civil trials and thus
prevent said trials from being carried on in the
dar2. &he rules of discovery serve as (a) devices,
along with the pre.trial hearing under ,ule %K, to
narrow and clarify the basis issues between the
parties# and (b) devices for ascertaining the facts
relative to those issues.
&he basic purposes of the rules of discovery are"
a) &o enable a party to obtain 2nowledge of
material facts within the 2nowledge of the
adverse party or of third parties through
depositions#
b) &o obtain 2nowledge of material facts or
admissions from the adverse party
through written interrogatories#
c) &o obtain admissions from the adverse
party regarding the genuineness of
relevant documents or relevant matters of
fact through re-uests for admissions#
d) &o inspect relevant documents or ob+ects,
and lands or other property in the
possession and control of the adverse
party# and
e) &o determine the physical or mental
condition of a party when such is in
controversy.
DEPOSITIONS PENDING ACTION .RULE 230J
DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
MEANING OF DEPOSITION
A deposition is the ta2ing of the testimony of any
person, whether he be a party or not, but at the
instance of a party to the action. &his testimony
is ta2en out of court. t may be either by oral
e'amination, or by a written interrogatory (Sec.
1, *ue 23).
USES OF DEPOSITIONS PENDING ACTION
At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of
evidence, may be used against any party who
was present or represented at the ta2ing of the
deposition or who had due notice thereof.
A deposition may be sought for use in a future
action (*ue 29), during a pending action (*ue
23), or for use in a pending appeal (*ue 29).
deposition benne esse 7 ta2en for use
during a pending action (*ue 23).
deposition in perpetuam rei
memoriam 7 ta2en to perpetuate a
testimony for use in future proceedings as
when it is sought before the e'istence of
an action, or for cases on appeal.
Any or all of the deposition, so far as admissible
under the rules of evidence, may be used (a)
against any party who was present or
represented at the ta2ing of the deposition, or (b)
against one who had due notice of the deposition
(Sec. 9, *ue 23).
&he deposition may be used for the following
purposes"
%) =or contradicting or impeaching the
testimony of the deponent as a witness#
() &he deposition of a party or of any one
who at the time of ta2ing the deposition
was an o5cer, director, or managing
60
agent of a public or private corporation,
partnership, or association which is a
party may be used by an adverse party for
any purpose#
)) =or any purpose by any party, where the
deponent is a witness if the court fnds
that"
a) &he witness is dead#
b) &he witness resides more than %FF
2ilometers from the place of trial or
hearing, or is out of the 3hilippines,
unless it appears that his absence
was procured by the party o/ering
the deposition#
c) &hat the witness is unable to
attend or testify because of age,
sic2ness, infrmity, or
imprisonment# or
d) &hat the party o/ering the
deposition has been unable to
procure the attendance of
witnesses by subpoena# or
e) 0hen e'ceptional circumstances
e'ist (Sec. 9, *ue 23).
SCOPE OF EXAMINATION
>nless otherwise ordered by the court as
provided by Sec. 1< or 1=, the deponent may be
e'amined regarding"
a) any matter not privileged
b) which is relevant to the pending action,
whether relating to the claim or defense of
any other party, including the e'istence,
description, nature, custody, condition,
and location of any boo2s, documents, or
other tangible things and the identity and
location of persons having 2nowledge of
relevant facts
c) <ot restricted by a protective order.
W%EN MAY OB,ECTIONS TO ADMISSIBILITY
BE MADE
Ab+ection may be made at the trial or hearing to
receiving in evidence any deposition or part
thereof for any reason which would re-uire the
e'clusion of the evidence if the witness were then
present and testifying (Sec. <).
W%EN MAY TA+ING OF DEPOSITION BE
TERMINATED OR ITS SCOPE LIMITED
At any time during the ta2ing of the deposition,
any party or deponent may as2 for the
termination or limiting of the scope of the
deposition upon showing"
%) that the e'amination is being conducted in
bad faith# or
() that it is conducted in such manner as
reasonably to annoy, embarrass, or
oppress the deponent or party.
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES
CONSE<UENCES OF REFUSAL TO ANSWER
&he party who fails to serve his answer to written
interrogatories may be the sub+ect of a +udgment
by default
EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES
A party not served with written interrogatories
may not be compelled by the adverse party to
give testimony in open court, or to give
deposition pending appeal, unless allowed by the
court or to prevent a failure of +ustice (Sec. <,
*ue 25).
&his provision encourages the use of written
interrogatories although a party is not compelled
to use this discovery procedure, the rule imposes
sanctions for his failure to serve written
interrogatories by depriving him of the privilege
to call the adverse party as a witness or to give a
deposition pending appeal.
RE<UEST FOR ADMISSION .RULE 2@0
A party, although not compelled by the ,ules, is
advised to fle and serve a written re-uest for
admission on the adverse party of those material
and relevant facts at issue and actionable
document ("s " resut, +ou nee' not "uthentic"te
it) which are, or ought to be, within the personal
2nowledge of said adverse party.
&he party who fails to fle and serve the re-uest
shall not be permitted to present evidence on
such facts (Sec. 5, *ue 2<).
IMPLIED ADMISSION BY ADVERSE PARTY
9ach of the matters of which an admission is
re-uested shall be deemed admitted unless,
within a period designated in the re-uest, which
shall not be less than ffteen (%5) days after
service thereof, or within such further time as the
court may allow on motion, the party to whom
the re-uest is directed fles and serves upon the
party re-uesting the admission a sworn
statement either denying specifcally the matters
of which an admission is re-uested or setting
forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
61
Ab+ections to any re-uest for admission shall be
submitted to the court by the party re-uested
within the period for and prior to the fling of his
sworn statement as contemplated in the
preceding paragraph and his compliance
therewith shall be deferred until such ob+ections
are resolved, which resolution shall be made as
early as practicable.
CONSE<UENCES OF FAILURE TO ANSWER
RE<UEST FOR ADMISSION
9ach of the matters of which an admission is
re-uested (facts or documents) shall be deemed
admitted unless within a period designated in the
re-uest which shall not be less than %5 days after
service thereof, or within such further time as the
court may allow on motion, the party to whom
the re-uest is directed fles and serves upon the
party re-uesting the admission a sworn
statement either denying specifcally the matter
of which an admission is re-uested or setting
forth in detail the reason why he cannot truthfully
either admit or deny those matters.
EFFECT OF ADMISSION
Any admission made by a party pursuant to such
re-uest is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3).
EFFECT OF FAILURE TO FILE AND SERVE
RE<UEST FOR ADMISSION
A party who fails to fle and serve a re-uest for
admission on the adverse party of material and
relevant facts at issue which are, or ought to be,
within the personal 2nowledge of the latter, shall
not be permitted to present evidence on such
facts (Sec. 5).
PRODUCTION OR INSPECTION OF
DOCUMENTS OR T%INGS .RULE 270
&his is prelude to the presentation of
secondary evidence.
&his ,ule applies only to a pending action and
the documents or things sub+ect of the motion
should not be privileged and must be those
within the possession, control or custody of a
party. &he petition must be su5ciently
described and identifed as well as material to
any matter involved in the pending action.
P%YSICAL AND MENTAL EXAMINATION OF
PERSONS .RULE 2C0
&his mode of discovery applies to an action in
which the mental or physical condition of a party
is in controversy.
,e-uisites to obtain Arder for 9'amination"
a) A ;A&A< must be fled for the physical
and mental e'amination#
b) &he motion showing Bood !ause for the
e'amination#
c) <A&!9 to the party to be e'amined and
to all the other parties
d) &he motion shall S39!=O the time, place,
manner, condition and scope of the
e'amination and the person or persons by
whom it is made.
,aiver of privilege. 0here the person
e'amined re-uests and obtains a report or the
results of the e'amination, the conse-uences are"
%) 4e has to furnish the other party a copy of
any previous or subse-uent e'amination
of the same physical and mental
condition# and
() 4e waives any privilege he may have in
that action or any other involving the
same controversy regarding the testimony
of any other person who has so e'amined
him or may thereafter e'amine him.
CONSE<UENCES OF REFUSAL TO COMPLY WIT% MODES OF DISCOVERY .RULE 2A0
REFUSAL TO COMPLY
WIT% MODES OF
DISCOVERY
SANCTIONS
0efusal to answer
any 1uestion
&he court may, upon application, compel a refusing deponent an
answer.
f granted and refusal to answer is without substantial +ustifcation,
the court may re-uire the refusing party to pay the proponent the
amount of the reasonable e'penses incurred in obtaining the order,
including attorneyVs fees.
f denied and fled without substantial +ustifcation, the court may
62
re-uire the proponent to pay to the refusing party or deponent the
amount of the reasonable e'penses incurred in opposing the
application, including attorneyVs fees.
A refusal to answer after being directed by the court to do so may
be considered a contempt of that court.
0efusal to be (worn !ite the disobedient deponent in !ontempt of court
0efusal to answer
designated 1uestions
or refusal to produce
documents or to
submit to physical or
mental e.amination
&he court may ma2e the following orders"
%) An order that the matters regarding which the -uestions were
as2ed, or the character or description of the thing or land, or
the contents of the paper, or the physical or mental condition of
the party, or any other designated facts shall be ta2en to be
established for the purposes of the action in accordance with
the claim of the party obtaining the order#
() An order refusing to allow the disobedient party to support or
oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or
items of testimony, or from introducing evidence of physical or
mental condition#
)) An order stri2ing out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
+udgment by default against the disobedient party# and
*) n lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of a party for
disobeying any of such orders e'cept an order to submit to a
physical or mental e'amination (Sec. 3, *ue 29).
0efusal to admit
actionable document
&he court may, upon application, issue an order to pay the proponent
the amount of the reasonable e'penses incurred in obtaining the
order, including attorneyVs fees.
)ailure of party to
attend or serve
answers
&he court, on motion and notice, may"
%) may stri2e out all or any part of any pleading of that party#
() dismiss the action or proceeding or any part thereof#
)) enter a +udgment by default against disobedient party#
*) order to pay reasonable e'penses incurred by the other,
including attorneyVs fees.
TRIAL .Rule 300
A trial is the +udicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plainti/ and
ending with his closing arguments.
AD,OURNMENTS AND POSTPONEMENTS
&he general rule is that a court may ad+ourn a
trial from day to day, and to any stated time, as
the e'peditious and convenient transaction of
business may re-uire (Sec. 2).
4owever, the court has no power to ad+ourn a
trial for a period longer than one month from
each ad+ournment, nor more than three ())
months in all, e'cept when authori6ed in writing
by the !ourt Administrator.
A motion for postponement should not be fled on
the last hour especially when there is no reason
why it could not have been presented earlier.
3ostponement is not a matter of right. t is
addressed to the sound discretion of the court.
RE<UISITES OF MOTION TO POSTPONE
TRIAL FOR ABSENCE OF EVIDENCE
%) A motion for postponement stating the ground
relied upon must be fled#
() &he motion must be supported by an a5davit
or sworn certifcation showing"
". the materiality or relevancy of the
evidence# and
%. that due diligence has been used to
procure it (Sec. 3).
63
)) f the adverse party admits the facts given in
evidence, the trial shall not be postponed
even if he reserves the right to ob+ect to the
admissibility of the evidence.
RE<UISITES OF MOTION TO POSTPONE
TRIAL FOR ILLNESS OF PARTY OR COUNSEL
%) A motion for postponement stating the ground
relied upon must be fled#
() &he motion must be supported by an a5davit
or sworn certifcation showing"
". that the presence of the party or
counsel at the trial is indispensable#
and
%. that the character of his illness is such
as to render his non.attendance
e'cusable (Sec. 9).
AGREED STATEMENTS OF FACTS
&he parties to any action may agree in writing
upon the facts involved in litigation d submit the
case for +udgment on the facts agreed upon,
without the introduction of evidence. <o trial shall
thus be held.
f the parties agree to only some facts in issue,
trial shall be held as to the disputed facts in such
order as the court shall prescribe.
&he agreed statement of facts is conclusive on
the parties, as well as on the court. <either of the
parties may withdraw from the agreement, nor
may the court ignore the same.
ORDER OF TRIAL
Sub+ect to the provisions of Sec. 2, *ue 31
(Se!"r"te tri"s), and unless the court for special
reasons otherwise directs, the trial shall be
limited to the issues stated in the pre.trial order
and shall proceed as follows"
%) &he plainti/ shall adduce evidence in
support of his complaint#
() &he defendant shall then adduce evidence
in support of his defense, counterclaim,
cross.claim and third party complaint#
)) &he third party defendant, if any, shall
adduce evidence of his defense,
counterclaim, cross.claim and fourth.party
complaint#
*) &he fourth party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them#
5) &he parties against whom any
counterclaim or cross.claim has been
pleaded, shall adduce evidence in support
of their defense, in the order to be
prescribed by the court#
8) &he parties may then respectively adduce
rebutting evidence only, unless the court,
for good reasons and in the furtherance of
+ustice, permits them to adduce evidence
upon their original case# and
J) >pon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to
argue or to submit their respective
memoranda or any further pleadings.
f several defendants or third party defendants
and so forth having separate defenses appear by
di/erent counsel, the court shall determine the
relative order of presentation of their evidence
(Sec. 5).
REVERSAL OF ORDER
0hen the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the order of trial may
be modifed (Sec. 11, *ue 119).
Since the defendant admits the plainti/@s claim
but see2s to avoid liability based on his
a5rmative defense, he shall proceed frst to
prove his e'emption.
CONSOLIDATION OR SEVERANCE OF
%EARING OR TRIAL .RULE 310
C2(s2l"!#'"2( 0hen actions involving a
common -uestion of law A, facts are pending
before the court, it may order a +oint hearing or
trial of any or all the matters in issue in the
actions# it may order all the actions consolidated#
and it may ma2e such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or delay (Sec. 1).
;odes of consolidating cases"
a) B+ rec"stin3 the c"ses "re"'+ institute' D
reshaping of the case by amending the
pleading and dismissing some cases and
retaining only one case. &here must be
+oinder of causes of action and of parties#
b) B+ consoi'"tion !ro!er or %+
consoi'"tin3 the e#istin3 c"ses D it is a
+oint trial with a +oint decision, the cases
retaining their original doc2et numbers#
and
c) B+ test/c"se $etho' D by hearing only the
principal case and suspending the hearing
on the other cases until +udgement has
64
been rendered in the principal case. &he
cases retain their original doc2et numbers.
Se)e-#(1e .Se9#-#'e0 T-"#ls= &he court, in
furtherance of convenience or to avoid pre+udice,
may order a separate trial of any claim, cross.
claim, counterclaim, or third party complaint, or
of any separate issue or of any number of claims,
cross.claims, counterclaim, third party complaints
or issue (Sec. 2).
<ote" !onsolidation is not a remedy in
case of forum shoppingR
DELEGATION OF RECEPTION OF EVIDENCE
As a general rule, the +udge shall personally
receive the evidence to be adduced by the
parties. 4owever, the reception of evidence may
be delegated under the following conditions"
%) &he delegation may be made only in
'ef"ut or e# !"rte he"rin3s, and in any
case where the parties agree in writing#
() &he delegation may be made only by the
cler2 of court who is a member of the bar#
)) Said cler2 of court shall have no power to
rule on of evidence ob+ections to any
-uestion or to the admission of e'hibits#
and
*) 4e shall submit his report and the
transcripts of the proceedings, together
with the ob+ections to be resolved by the
court, within ten (%F) days from
termination of the hearing.
TRIAL BY COMMISSIONERS .RULE 320
!ommissioner includes a referee, an auditor and
an e'aminer (Sec. 1)
REFERENCE BY CONSENT
$y written consent of both parties, the court may
order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by
the parties or to be appointed by the court.
REFERENCE ORDERED ON MOTION
0hen the parties do not consent, the court may,
upon the application of either or on its own
motion, direct a reference to a commissioner in
the following cases"
1) 0hen the trial of an issue of fact
re-uires the e'amination of a GA<B
A!!A><& on either side, in which case
the commissioner may be directed to
hear and report upon the whole issue
or any specifc -uestion involved
therein#
2) 0hen the ta2ing of an account is
necessary for the information of the
court before +udgment, or for carrying
a +udgment or order into e/ect#
3) 0hen a -uestion of fact, other than
upon the pleadings, arises upon
motion or otherwise, in any stage of a
case, or for carrying a +udgment or
order into e/ect (Sec. 2).
POWERS OF COMMISSIONER
>nder the ,ules, the court@s order may specify or
limit the powers of the commissioner. 4ence, the
order may direct him to"
a) ,eport only upon particular issues#
b) ?o or perform particular acts# or
c) ,eceive and report evidence only.
&he order may also f' the date for beginning and
closing of the hearings and for the fling of his
report.
Sub+ect to such limitations stated in the order,
the commissioner"
") Shall e'ercise the power to regulate the
proceedings in every hearing before him#
%) Shall do all acts and ta2e all measures
necessary or proper for the e5cient
performance of his duties under the order#
c) ;ay issue subpoenas and subpoenas
duces tecum, and swear witnesses# and
') ,ule upon the admissibility of evidence,
unless otherwise provided in the order of
reference (Sec. 3, *ue 32).
COMMISSIONERES REPORTJ NOTICE TO
PARTIES AND %EARING ON T%E REPORT
&he commissioner@s report is not binding upon
the court which is free to adopt, modify, or re+ect,
in whole or in part, the report. &he court may
receive further evidence or recommit the report
with instructions (Sec. 11, *ue 32)
<otice of the fling of the report must be sent to
the parties for the purpose of giving them an
opportunity to present their ob+ections. &he
failure to grant the parties, in due form, this
opportunity to ob+ect, may, in some instances,
constitute a serious error in violation of their
substantial rights.
&he rule, however, is not absolute. n one case, it
was ruled that although the parties were not
notifed of the fling of the commissioner@s
reports, and the court failed to set said report for
65
hearing, if the parties who appeared before the
commissioner were duly represented by counsel
and given an opportunity to be heard, the
re-uirement of due process has been satisfed,
and a decision on the basis of such report, with
the other evidence of the case is a decision which
meets the re-uirements of fair and open hearing.
n the hearing to be conducted on the
commissioner@s report, the court will review only
so much as may be drawn in -uestion by proper
ob+ections. t is not e'pected to rehear the case
upon the entire record.
DEMURRER TO EVIDENCE .Rule 330
?emurrer to evidence is a motion to dismiss fled
by the defendant after the plainti/ had rested his
case on the ground of <S>==!9<!O A=
9V?9<!9.
&he provision of the ,ules governing demurrer to
evidence does not apply to an election case.
GROUND
After plainti/ has fnished presenting his
evidence, the defendant may move for the
dismissal of the complaint on the ground that
upon the facts and the law, the plainti/ has
shown no right to relief.
EFFECT OF DENIALJ EFFECT OF GRANT
n the event his motion is denied, the defendant
does not waive his right to o/er evidence. &he
defendant shll have the right to present his
evidence. An order denying a demurrer to
evidence is interlocutory and is therefore, not
appealable. t can however be the sub+ect of a
petition for certiorari in case of grave abuse of
discretion or an oppressive e'ercise of +udicial
authority.
f the motion is granted and the order of dismissal
is reversed on appeal , the movants loses his
right to present the evidence on his behalf. &he
appellate court in case it reverses the grant of
the motion, should render the +udgment therein
based on the evidence submitted by the plainti/.
t is not correct for the appellate court reversing
the order granting the demurrer to remand the
case to the trial court for further proceedings. &he
appellate court should, instead of remanding the
case, render +udgment on the basis of the
evidence submitted by the plainti/.
WAIVER OF RIG%T TO PRESENT EVIDENCE
f the demurrer is granted but on appeal the order
of dismissal is reversed, the defendant is deemed
to have waived his right to present evidence.
DEMURRER TO EVIDENCE IN A CIVIL CASE
VERSUS DEMURRER TO EVIDENCE IN A
CRIMINAL CASE
n a civil case, leave of court is not re-uired
before fling a demurrer. n a criminal case, leave
of court is fled with or without leave of court
(Sec. 23, *ue 119).
n a civil case, if the demurrer is granted, the
order of dismissal is appealableUsince the
motion is interlocutory. n a criminal case, the
order of dismissal is not appealable because of
the constitutional policy against double +eopardy
Udenial is tantamount to ac-uittal, fnal and
e'ecutory.
n civil case, if the demurrer is denied, the
defendant may proceed to present his evidence.
n a criminal case, the accused may adduce his
evidence only if the demurrer is fled with leave of
court. 4e cannot present his evidence if he fled
the demurrer without leave of court (Sec. 23,
*ue 119).
n civil case, the plainti/ fles a motion to deny
motion to demurrer to evidence. n criminal case,
the court may $otu !ro!rio deny the motion.
,UDGMENTS AND FINAL ORDERS .Rules 34
3@0
,UDGMENT WIT%OUT TRIAL
&he theory of summary +udgment is that although
an answer may on its face appear to tender
issuesUre-uiring trialUyet if it is demonstrated
by a5davits, depositions, or admissions that
those issues are not genuine, but sham or
fctitious, the !ourt is +ustifed in dispensing with
the trial and rendering summary +udgment for
plainti/.
&he court is e'pected to act chieIy on the basis
of the a5davits, depositions, admissions
submitted by the movants, and those of the other
party in opposition thereto.
&he hearing contemplated (with %F.day notice) is
for the purpose of determining whether the issues
are genuine or not, not to receive evidence on
the issues set up in the pleadings. A hearing is
66
not thus 'e ri3uer. &he matter may be resolved,
and usually is, on the basis of a5davits,
depositions, admissions.
n one case, the summary +udgment here was
+ustifed, considering the absence of opposing
a5davits to contradict the a5davits.
CONTENTS OF A ,UDGMENT
:udgment has two parts"
%) the body of the +udgment or the r"tio
'eci'en'i, and
() the dispositive portion of the +udgment or
f"o.
&he body of the decision (r"tio
'eci'en'i) is not the part of the
+udgment that is sub+ect to e'ecution
but the f"o because it is the latter
which is the +udgment of the court.
&he importance of fallo or dispositive
portion of a decision should state
whether the complaint or petition is
granted or denied, the specifc relief
granted, and the costs.
t is the dispositive part of the
+udgment that actually settles and
declares the rights and obligations of
the parties, fnally, defnitively, and
authoritatively.
&he general rule is that where there is a conIict
between the fallo and the ratio decidendi, the
fallo controls. &his rule rests on the theory that
the fallo is the fnal order while the opinion in the
body is merely a statement ordering nothing.
0here the inevitable conclusion from the body of
the decision is so clear that there was a mere
mista2e in the dispositive portion, the body of the
decision prevails.
A +udgment must have the signature of the +udge.
,UDGMENT ON T%E PLEADINGS .RULE 340
0here an answer fails to tender an issue, or
otherwise admits the material allegations of the
adverse partyDs pleading, the court may, on
motion of that party, direct +udgment on such
pleading.
&he following actions !A<<A& be the sub+ect of a
+udgment on the pleadings"
%) declaration of nullity of marriage
() annulment of marriage
)) legal separation
n cases of unli-uidated damages, or admission of
the truth of allegation of adverse party, the
material facts alleged in the complaint shall
always be proved.
SUMMARY ,UDGMENTS .RULE 360
A summary +udgment or accelerated +udgment is
a procedural techni-ue to promptly dispose of
cases where the facts appear undisputed and
certain from the pleadings, depositions,
admissions and a5davits on record, of for
weeding out sham claims or defenses at an early
stage of the litigation to avoid the e'pense and
loss of time involved in a trial.
;oreover, said summary +udgment must be
premised on the absence of any other triable
genuine issues of fact. Atherwise, the movants
cannot be allowed to obtain immediate relief. A
genuine issue is such issue of fact which re-uires
presentation of evidence as distinguished from a
sham, fctitious, contrived or false claim.
&he re-uisites are"
%) there must be no genuine issue as to any
material fact, e'cept for the amount of
damages# and
() the party presenting the motion for
summary +udgment must be entitled to a
+udgment as a matter of law.
FOR T%E CLAIMANT
A party see2ing to recover upon a claim,
counterclaim, or cross.claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served,
move with supporting a5davits, depositions or
admissions for a summary +udgment in his favor
upon all or any part thereof (Sec. 1).
FOR T%E DEFENDANT
A party against whom a claim, counterclaim, or
cross.claim is asserted or a declaratory relief is
sought may, "t "n+ ti$e, move with supporting
a5davits, depositions or admissions for a
summary +udgment in his favor as to all or any
part thereof (Sec. 2).
W%EN T%E CASE NOT FULLY AD,UDICATED
f +udgment is not rendered upon the whole case,
the court shall ascertain what material facts e'ist
without substantial controversy and those that
are controverted. &he court shall then render a
67
partial +udgement with trial to proceed on the
matters that remain controverted.
AFFIDAVITS AND ATTAC%MENTS
Supporting and opposing a5davits shall be made
on personal 2nowledge, shall set forth such facts
as would be admissible in evidence, and shall
show a5rmatively that the a5ant is competent
to testify to the matters stated therein. !ertifed
true copies of all papers or parts thereof referred
to in the a5davit shall be attached thereto or
served therewith (Sec. 5).
Should it appear to its satisfaction at any time
that any of the a5davits presented pursuant to
the ,ules are presented in bad faith, or solely for
the purpose of delay, the court shall forthwith
order the o/ending party or counsel to pay to the
other party the amount of the reasonable
e'penses which the fling of the a5davits caused
him to incur, including attorneyDs fees. t may,
after hearing, further ad+udge the o/ending party
or counsel guilty of contempt (Sec. <).
,UDGMENTS ON T%E PLEADINGS VERSUS
SUMMARY ,UDGMENTS
a) n the +udgment on the pleadings, the answer
does not tender an issue# in summary
+udgment, there is an issue tendered in the
answer, but it is not genuine or real issue as
may be shown by a5davits and depositions
that there is no real issue and that the party is
entitled to +udgment as a matter of right#
b) n +udgment on the pleadings, the movants
must give a ).day notice of hearing# while in
summary +udgment, the opposing party is
given %F days notice#
c) n +udgment on the pleadings, the entire case
may be terminated# while in summary
+udgment, it may only be partial#
d) n +udgment on the pleadings, only the
plainti/ or the defendants as far as the
counterclaim, cross.claim or third.party
complaint is concerned can fle the same#
while in summary +udgment, either the
plainti/ or the defendant may fle it.
RENDITION OF ,UDGMENTS AND FINAL
ORDERS
Re(!"'"2( 28 ;u!:e(' is the fling of the same
with the cler2 of court. t is <A& the
pronouncement of the +udgment in open court
that constitutes the rendition. 9ven if the
+udgment has already been put in writing and
signed, it is still sub+ect to amendment if it has
not yet been fled with the cler2 of court and
before its fling does not yet constitute the real
+udgment of the court. t is <A& the writing of the
+udgment or its signing which constitutes
rendition of the +udgment.
A ;u!:e(' 2- H(#l 2-!e- determining the
merits of the case shall be in writing personally
and directly prepared by the +udge, stating clearly
and distinctly the facts and the law on which it is
based, signed by him, and fled with the cler2 of
the court (Sec. 1, *ue 3<).
ENTRY OF ,UDGMENT AND FINAL ORDER
f no appeal or motion for new trial or
reconsideration is fled within the time provided in
the ,ules, the +udgment or fnal order shall
forthwith be entered by the cler2 in the boo2 of
entries of +udgments.
&he record shall contain the dispositive part of
the +udgment or fnal order and shall be signed by
the cler2, with a certifcate that such +udgment or
fnal order has become fnal and e'ecutory (Sec.
2).
&he entry of +udgment refers to the physical act
performed by the cler2 of court in entering the
dispositive portion of the +udgment in the boo2 of
entries of +udgment and after the same has
become fnal and e'ecutory.
&he date of fnality of the +udgment or fnal order
shall be deemed the date of its entry. &hus,
while there has been no physical entry of
%udgment in the boo" of entries, it is
deemed to have been constructively made
at the time of the #nality of the %udgment
or #nal order.
&here are some proceedings the fling of which is
rec2oned from the date of the entry of +udgment"
1) the e'ecution of a +udgment by motion is
within fve (5) years from the entry of the
+udgment (Sec. <, *ue 39);
2) the fling of a petition for relief has, as one
of its periods, not more than si' (8)
months from the entry of the +udgment or
fnal order (Sec. 3, *ue 3=).
POST ,UDGMENT REMEDIES
.Rules 37/ 3C/ 4047/ 62/ 630
Ree!"es &e82-e # ;u!:e(' &e12es H(#l
#(! e?e1u'2-5
68
") ;otion for reconsideration (prohibited in a
case that falls under summary procedure)
(*ues 3;, 52);
%) ;otion for new trial (*ues 3;, 53); and
c) Appeal (*ues 9., 91, 92, 93, 95)
Ree!"es #8'e- ;u!:e(' &e12es H(#l #(!
e?e1u'2-5
a) 3etition for relief from +udgment#
b) Action to annul a +udgment#
c) !ertiorari# and
d) !ollateral attac2 of a +udgment.
MOTION FOR NEW TRIAL OR
RECONSIDERATION .RULE 370
GROUNDS FOR A MOTION FOR NEW TRIAL
1) =raud (e'trinsic), accident, mista2e (of fact
and not of law) or e'cusable negligence
(=A;9<) which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has probably been
impaired in his rights#
2) <ewly discovered evidence ($erry ,ule),
which he could not, with reasonable diligence,
have discovered and produced at the trial,
and which if presented would probably alter
the result# and
3) Award of e'cessive damages, or insu5ciency
of the evidence to +ustify the decision, or that
the decision is against the law (Sec. 1, *ue
3;).
GROUNDS FOR A MOTION FOR
RECONSIDERATION
%) &he damages awarded are e'cessive#
() &he evidence is insu5cient to +ustify the
decision or fnal order#
)) &he decision or fnal order is contrary to law.
(
nd
;, is not allowed e'cept in S!
W%EN TO FILE
A motion for new trial should be fled within
the period for ta2ing an appeal. 4ence, it
must be fled before the fnality of the
+udgment.
<o motion for e'tension of time to fle a
motion for reconsideration shall be allowed.
&he period for appeal is within %5 days after
notice to the appellant of the ;u!:e(' or
H(#l 2-!e- appealed from.
0here a record on appeal is re-uired, the
appellant shall fle a notice of appeal and a
record on appeal within )F days from notice
of the +udgment or fnal order. A record on
appeal shall be re-uired only in special
proceedings and other cases of multiple or
separate appeals (Sec. 3, *ue 9.).
DENIAL OF T%E MOTIONJ EFFECT
f the motion is denied, the movants has a
2fresh period3 of #fteen days from receipt
or notice of the order denying or dismissing
the motion for reconsideration within which to
fle a notice of appeal of the +udgment or fnal
order.
;eaning, the defendant is given a Mfresh
periodN of %5 days counted from the receipt of
the order dismissing the motion for new trial
or reconsideration.
0hen the motion for new trial is denied on the
ground of fraud, accident, mista2e of fact or
law, or e'cusable negligence, the aggrieved
party can no longer avail of the remedy of
petition for relief from +udgment
GRANT OF T%E MOTIONJ EFFECT
f a new trial be granted, the original
+udgment shall be vacated or set aside, and
the action shall stand for tri" 'e no6o# but the
recorded evidence ta2en upon the former trial
so far as the same is material and competent
to establish the issues, shall be used at the
new trial without reta2ing the same (Sec. <).
&he fling of the motion for new trial or
reconsideration interrupts the period to
appeal (Sec. 2, *ue 9.; Sec. 3, *ue 91).
f the court grants the motion (e.g., it fnds
that e'cessive damages have been awarded
or that the +udgment or fnal order is contrary
to the evidence or law), it may amend such
+udgment or fnal order accordingly (Sec. 3).
&he amended +udgment is in the nature of a
new +udgment which supersedes the original
+udgment. t is not a mere supplemental
decision which does not supplant the original
but only serves to add something to it.
f the court fnds that a motion a/ects the
issues of the case as to only a part, or less
than all of the matters in controversy, or only
one, or less that all of the parties to it, the
order may grant a reconsideration as to such
issues if severable without interfering with the
+udgment or fnal order upon the rest (Sec. ;).
REMEDY W%EN MOTION IS DENIED
&he party aggrieved should appeal the
+udgment. &his is so because a second motion
for reconsideration is e'pressly prohibited.
69
An order denying a motion for reconsideration
or new trial is not appealable, the remedy
being an appeal from the +udgment or fnal
order un'er *ue 3=. &he remedy from an
order denying a motion for new trial is not to
appeal from the order of denial. Again, the
order is not appealable. &he remedy is to
appeal from the +udgment or fnal order itself
sub+ect of the motion for new trial (Sec. 9,
rue 3;).
FRES% 16*DAY PERIOD RULE
f the motion is denied, the movants has a
fresh period of %5 days from receipt or notice
of the order denying or dismissing the motion
for reconsideration within which to fle a
notice to appeal.
&his new period becomes signifcant if either a
motion for reconsideration or a motion for
new trial has been fled but was denied or
dismissed.
1his fresh !erio' rue "!!ies on+ to *ue 91
3o6ernin3 "!!e"s fro$ the *1C %ut "so to
*ue 9. 3o6ernin3 "!!e"s fro$ ,1C to *1C,
*ue 92 on !etitions for re6ie) fro$ the *1C
to the CA, *ue 93 on "!!e" fro$ (u"si/
&u'ici" "3encies to the CA, "n' *ue 95
3o6ernin3 "!!e"s %+ certior"ri to the SC.
Accordingly, this rule was adopted to
standardi6e the appeal periods provided in
the ,ules to a/ord fair opportunity to review
the case and, in the process, minimi6e errors
of +udgment.
O&)"2usl5/ '7e (e$ 16 !#5 9e-"2! #5 &e
#)#"le! 28 2(l5 "8 e"'7e- 2'"2( "s Hle!J
otherwise, the decision becomes fnal and
e'ecutory after the lapse of the original
appeal period provided in *ue 91 (-e+!es 6s.
CA., Se!t. 19, 2..5).
&he <eypes ruling shall not be applied where
no motion for new trial or motion for
reconsideration has been fled in which case
the %5.day period shall run from notice of the
+udgment.
&he fresh period rule does not refer to the
period within which to appeal from the order
denying the motion for new trial because the
order is not appealable under Sec. E, ,ule )J.
&he non.appealability of the order of denial is
also confrmed by Sec. %(a), ,ule *%, which
provides that no appeal may be ta2en from an
order denying a motion for new trial or a
motion for reconsideration.
&he S! ruled in one case that this Mfresh
period of appealN is also applicable in criminal
cases (&udith 'u vs. &udge (amson, )eb.
*, 2011)
APPEALS IN GENERAL
&he right to appeal is not part of due process but
a mere statutory privilege that has to be
e'ercised only in the manner and in accordance
with the provisions of law
&he general rule is that the remedy to obtain
reversal or modifcation of +udgment on the
merits is appeal. &his is true even if the error, or
one of the errors, ascribed to the court rendering
the +udgment is its lac2 of +urisdiction over the
sub+ect matter, or the e'ercise of power in e'cess
thereof, or grave abuse of discretion in the
fndings of facts or of law set out in the decision.
!ertain rules on appeal"
a) <o trial de novo anymore. &he appellate
courts must decide the case on the basis
of the record, e'cept when the
proceedings were not duly recorded as
when there was absence of a -ualifed
stenographer.
b) &here can be no new parties.
c) &here can be no change of theory (-"6"
6s. CA, 9=3 SC*A 1.2).
d) &here can be no new matters.
e) &here can be amendments of pleadings to
conform to the evidence submitted before
the trial court.
f) &he liability of solidarity defendant who
did not appeal is not a/ected by appeal of
solidarity debtor.
g) Appeal by guarantor does not inure to the
principal.
h) n e+ectment cases, the ,&! cannot award
to the appellant on his counterclaim more
than the amount of damages beyond the
+urisdiction of the ;&!.
i) &he appellate court cannot dismiss the
appealed case for failure to prosecute
because the case must be decided on the
basis of the record.
,UDGMENTS AND FINAL ORDERS SUB,ECT
TO APPEAL
An appeal may be ta2en only from +udgments or
fnal orders that completely dispose of the case
(Sec. 1, *ue 91). An interlocutory order is not
appealable until after the rendition of the
+udgment on the merits.
MATTERS NOT APPEALABLE
<o appeal may be ta2en from"
1) An order denying a motion for new trial or
a motion for reconsideration#
70
2) An order denying a petition for relief or
any similar motion see2ing relief from
+udgment#
3) An interlocutory order#
9) An order disallowing or dismissing an
appeal#
5) An order denying a motion to set aside a
+udgment by consent, confession or
compromise on the ground of fraud,
mista2e or duress, or any other ground
vitiating consent#
<) An order of e'ecution#
;) A +udgment or fnal order for or against
one or more of several parties or in
separate claims, counterclaims, cross.
claims, and third.party complaints, while
the main case is pending, unless the court
allows an appeal therefrom# and
=) An order dismissing and action without
pre+udice (Sec. 1, *ue 91).
A -uestion that was never raised in the courts
below cannot be allowed to be raised for the frst
time on appeal without o/ending basic rules of
fair play, +ustice and due process. =or an
appellate court to consider a legal -uestion, it
should have been raised in the court below. t
would be unfair to the adverse party who would
have no opportunity to present evidence in
contra to the new theory, which it could have
done had it been aware of it at the time of the
hearing before the trial court. t is true that this
rule admits of e'ceptions as in cases of lac2 of
+urisdiction, where the lower court committed
plain error, where there are +urisprudential
developments a/ecting the issues, or when the
issues raised present a matter of public policy.
&he court may consider an error not raised on
appeal provided the same falls within any of the
following categories"
%) t is an error that a/ects the +urisdiction
over the sub+ect matter#
() t is an error that a/ects the validity of the
+udgment appealed from#
)) t is an error which a/ects the
proceedings#
*) t is an error closely related to or
dependent on an assigned error and
properly argued in the brief# or
5) t is a plain and clerical error.
REMEDY AGAINST ,UDGMENTS AND
ORDERS W%IC% ARE NOT APPEALABLE
n those instances where the +udgment or fnal
order is not appealable, the aggrieved party
may fle the appropriate special civil action
under *ue <5.
*ue <5 refers to the special civil actions of
certiorari, prohibition and mandamus (!3;).
3ractically, it would be the special civil action
of certiorari that would be availed of under
most circumstances. &he most potent remedy
against those +udgments and orders from
which appeal cannot be ta2en is to allege and
prove that the same were issued without
+urisdiction, with grave abuse of discretion or
in e'cess of +urisdiction, all amounting to lac2
of +urisdiction.
MODES OF APPEAL .SEC= 2/ RULE 410
(a) ORDINARY APPEAL
&he appeal to the !A in cases decided by
the ,&! in the e'ercise of its original
+urisdiction shall be ta2en by Hl"(: #
(2'"1e 28 #99e#l with the court which
rendered the +udgment or fnal order
appealed from and serving a copy thereof
upon the adverse party.
<o record on appeal shall be re-uired
e'cept in special proceedings and
other cases of multiple or separate
appeals where the law or the ,ules so
re-uire. n such cases, the record on
appeal shall be fled and served in li2e
manner.
(b) PETITION FOR REVIEW
&he appeal to the !A in cases decided
by the ,&! in the e'ercise of its
appellate +urisdiction shall be by
9e'"'"2( 82- -e)"e$ in "ccor'"nce
)ith *ue 92.
(c) PETITION FOR REVIEW ON CERTIORARI
n all cases where only -uestions of law
are raised or involved, the appeal shall be
to the S! by 9e'"'"2( 82- -e)"e$ 2(
1e-'"2-#-" in "ccor'"nce )ith *ue 95.
ISSUES TO BE RAISED ON APPEAL
0hether or not the appellant has fled a motion
for new trial in the court below, he may include in
his assignment or errors any -uestion of law or
fact that has been raised in the court below and
which is within the issues framed by the parties
(Sec. 15, *ue 99).
%) n an 4rdinary Appeal, the appeal raises
the -uestions of fact or mi'ed -uestions of
fact and law.
() n Petition for 0eview, the appeal raises
-uestions of fact, of law or mi'ed
-uestions of fact and law.
71
)) n a Petition for 0eview on +ertiorari,
the appeal raises purely -uestions of law.
PERIOD OF APPEAL
PERIOD OF ORDINARY APPEAL UNDER RULE
40
An appeal may be ta2en (fro$ ,1C to
*1C) within %5 days after notice to the
appellant of the +udgment or fnal order
appealed from. 0here a record on appeal
is re-uired, the appellant shall fle a notice
of appeal and a record on appeal within )F
days after notice of the +udgment or fnal
order.
&he period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration.
<o motion for e'tension of time to fle a
motion for new trial or reconsideration
shall be allowed (Sec. 2).
PERIOD OF ORDINARY APPEAL UNDER RULE
410
&he appeal shall be ta2en within %5 days
from notice of the +udgment or fnal order
appealed from. 0here a record on appeal
is re-uired, the appellants shall fle a
notice of appeal and a record on appeal
within )F days from notice of the
+udgment or fnal order.
4owever, on appeal in habeas corpus
cases shall be ta2en within *K hours from
notice of the +udgment or fnal order
appealed from (A, -o. .1/1/.3/SC, 2une
19, 2..1).
&he period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration.
<o motion for e'tension of time to fle a
motion for new trial or reconsideration
shall be allowed (Sec. 3).
f the record on appeal is not transmitted
to the !A within )F days after the
perfection of appeal, either party may fle
a motion with the trial court, with notice to
the other, for the transmittal of such
record or record on appeal (Sec. 3, *ue
99).
PERIOD OF PETITION FOR REVIEW UNDER
RULE 42
&he petition shall be fled and served
within %5 days from notice of the decision
sought to be reviewed or of the denial of
petitioner@s motion for new trial or
reconsideration fled in due time after
+udgment.
&he court may grant and additional period
of %5 days only provided the e'tension is
sought
a) upon proper motion, and
b) there is payment of the full amount
of the doc2et and other lawful fees
and the deposit for costs before the
e'piration of the reglementary
period.
<o further e'tension shall be granted
e'cept for the most compelling reason and
in no case to e'ceed %5 days.
PERIOD OF APPEAL BY PETITION FOR
REVIEW UNDER RULE 43
&he appeal shall be ta2en within %5 days
from notice of the award, +udgment, fnal
order or resolution, or from the date of its
last publication, if publication is re-uired
by law for its e/ectivity, or of the denial of
petitioner@s motion for new trial or
reconsideration duly fled in accordance
with the governing law of the court or
agency a -uo.
Anly one (%) motion for reconsideration
shall be allowed. >pon proper motion and
the payment of the full amount of the
doc2et fee before the e'piration of the
reglementary period, the !A may grant an
additional period of %5 days only within
which to fle the petition for review.
<o further e'tension shall be granted
e'cept for the most compelling reason and
in no case to e'ceed %5 days (Sec. 9).
PERIOD OF APPEAL BY PETITION FOR
REVIEW ON CERTIORARI UNDER RULE 46
&he appeal which shall be in the form of a
verifed petition shall be fled within %5
days from notice of the +udgment, fnal
order or resolution appealed from, or
within %5 days from notice of the denial of
the petitioner@s motion for new trail or
motion for reconsideration fled in due
time.
&he Supreme !ourt may, for +ustifable
reasons, grant an e'tension of )F days
only within which to fle the petition
provided"
a) there is a motion for e'tension of
time duly fled and served#
b) there is full payment of the doc2et
and other lawful fees and the
deposit for costs# and
c) the motion is fled and served and
the payment is made before the
e'piration of the reglementary
period.
72
MODE OF
APPEAL
PERIOD OF APPEAL Pe-"2! 28 #99e#l "8 9#-'5 Hles MFR 2- Ne$
T-"#l (5eypes !octrine)
O-!"(#-5 A99e#l
(0ules 60, 61)
#0 N2'"1e 28
A99e#l (0ule 60)
0ithin %5 days from
receipt of +udgment or fnal
order
0ithin %5 days from receipt of order denying
motion for reconsideration or new trial
&0 Re12-! 2(
A99e#l (0ule 61)
0ithin )F days from
receipt of +udgment or fnal
order
&he )F.day to fle the notice of appeal and record
on appeal should rec2oned from the receipt of the
order denying the motion for new trial or motion
for reconsi'er"tion (A"+co 6s. Fi$o, A!ri 1<,
2..=)
Pe'"'"2( 82-
Re)"e$ (0ule 62)
0ithin %5 days from
receipt of +udgment
0ithin %5 days from receipt of the order denying
motion for reconsideration or new trial
Pe'"'"2( 82-
Re)"e$ (0ule 6)
0ithin %5 days from
receipt of +udgment or fnal
order or of last publication
0ithin %5 days from receipt of the order denying
motion for reconsideration or new trial
A99e#l &5
Ce-'"2-#-" (0ule
6$)
0ithin %5 days from
receipt of +udgment or fnal
order
0ithin %5 days from receipt of the order denying
motion for reconsideration or new trial
PERFECTION OF APPEALS
F2- O-!"(#-5 A99e#ls 8-2 MTC '2 '7e RTC
.Rule 400 #(! 8-2 '7e RTC '2 '7e CA .Rule
410=
A party@s appeal by notice of appeal is
deemed perfected as to him upon the
fling of the notice of appeal in due time.
>pon such perfection or the e'piration of
the same to appeal by the other parties,
the court loses +urisdiction over the
sub+ect matter thereof
A party@s appeal by record on appeal is
deemed perfected as to him with respect
to the sub+ect matter thereof upon the
approval of the record on appeal fled in
due time. &he court has +urisdiction only
over the sub+ect matter thereof upon such
approval for the e'piration of the time to
appeal of the other parties.
n either case, prior to the transmittal of
the original record or the record on
appeal, the court may issue orders for the
protection and preservation of the rights
of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order e'ecution pending appeal
in accordance with Sec. 2, *ue 39, and
allow withdrawal of the appeal (Sec. 9,
*ue 91).
Pe-8e1'"2( 28 A99e#l &5 Pe'"'"2( 82- Re)"e$
u(!e- Rule 42= .Se1=C0
>pon the timely fling of a petition for
review and the payment of the
corresponding doc2et and other lawful
fees, the appeal is deemed perfected as to
the petitioner.
&he ,&! loses +urisdiction over the case
upon the perfection of the appeals fled in
due time and the e'piration of the time to
appeal of the other parties.
4owever, before the !A give due course to
the petition, the ,&! may issue orders for
the protection and preservation of the
rights of the parties which do not involve
any matter litigated by the appeal,
approve compromises, permit appeals of
indigent litigants, order e'ecution pending
appeal in accordance with Sec. 2, *ue 39,
and allow withdrawal of the appeal.
9'cept in civil cases decided under ,ules
on Summary 3rocedure, the appeal shall
stay the +udgment or fnal order unless the
!A, the law, or the ,ules provide
otherwise.
APPEAL FROM ,UDGMENTS OR FINAL
ORDERS OF T%E MTC
An appeal from a +udgment or fnal order of a ;&!
may be ta2en to the ,&! e'ercising +urisdiction
over the area over which the ;&! sits. &he title of
the case shall remain as it was in the court of
origin, but the party appealing the case shall be
further referred to as the appellant and the
adverse party as the appellee (Sec. 1, *ue 9.).
0here the ;&! dismisses a case for lac2 of
+urisdiction of such dismissal is made to the ,&!,
should the latter a5rm the dismissal and if it has
+urisdiction over the sub+ect matter, the ,&! is
73
obliged to try the case as if it were originally fled
with it.
&he appeal is ta2en by fling a notice of appeal
with the court that rendered the +udgment or fnal
order appealed from. &he notice of appeal shall
indicate the parties to the appeal, the +udgment
or fnal order or part thereof appealed from, and
state the material dates showing the timeliness of
the appeal. A record on appeal shall be re-uired
only in special proceedings and in other cases of
multiple or separate appeals.
APPEAL FROM ,UDGMENTS OR FINAL
ORDERS OF T%E RTC
&here are three modes of appealing a +udgment
or fnal order of the ,&!"
%) O-!"(#-5 A99e#l (*ue 91) from the
+udgment or fnal order of the ,&! in the
e'ercise of its original +urisdiction
() Pe'"'"2( 82- Re)"e$ (*ue 92) from the
+udgment or fnal order of the ,&! to the
!A in cases decided by the ,&! in the
e'ercise of its appellate +urisdiction
)) Pe'"'"2( 82- Re)"e$ 2( Ce-'"2-#-" (*ue
95)
APPEAL FROM ,UDGMENTS OR FINAL
ORDERS OF T%E CA
#0 Appeal from the +udgments or fnal orders of
the !A concerning purely -uestions of law
which must be distinctly set forth may be
elevated to the S! by way of *ue 950
Pe'"'"2(s 82- Re)"e$ 2( Ce-'"2-#-"=
&0 &he general rule is that the S! shall not
entertain -uestions of fact, e'cept in the
following cases"
a) &he conclusion of the !A is grounded
entirely on speculations, surmises and
con+ectures#
b) &he inference made is manifestly
mista2en, absurd or impossible#
c) &here is grave abuse of discretion#
d) &he +udgment is based on
misapprehension of facts#
e) &he fndings of facts are conIicting#
f) &he !A in ma2ing its fndings went
beyond the issues of the case and the
same is contrary to the admissions of
both appellant and appellee#
g) &he fndings are contrary to those of
the trial court#
h) &he facts set forth in the petition as
well as in the petitionerDs main and
reply briefs are not disputed by the
respondents#
i) &he fndings of fact of the !A are
premised on the supposed absence of
evidence and contradicted by the
evidence on record# or
+) &hose fled under 0rits of amparo,
habeas data, or 2ali2asan.
APPEAL FROM ,UDGMENTS OR FINAL
ORDERS OF T%E CTA
>nder Sec. 11 of *A 92=2, no civil proceeding
involving matters arising under the <,!, the &!!
or the Gocal Bovernment !ode shall be
maintained, e'cept as herein provided, until and
unless an appeal has been previously fled with
the !&A and disposed of in accordance with the
provisions of the Act.
A party adversely a/ected by a resolution of a
?ivision of !&A on a motion for reconsideration or
new trial, may fle a petition for review with the
!&A en banc.
Sec. 11 of *A 92=2 further provides that a party
adversely a/ected by a decision or ruling of the
!&A en banc may fle with the S! a verifed
9e'"'"2( 82- -e)"e$ 2( 1e-'"2-#-" pursuant to
*ue 95.
REVIEW OF FINAL ,UDGMENTS OR FINAL
ORDERS OF T%E COMELEC
A +udgment, resolution or fnal order of the
!A;9G9! may be brought by the aggrieved party
to the S! on certiorari under *ue <5 in relation to
*ue <9, by fling the petition within )F days from
notice.
REVIEW OF FINAL ORDERS OF T%E CSC
A +udgment, fnal order or resolution of the !ivil
Service !ommission may be ta2en to the !A
under *ue 93. -ote the 'i7erence %et)een the
$o'e of "!!e" fro$ " &u'3$ent of the CSC "n'
the $o'e of "!!e" fro$ the &u'3$ents of other
constitution" co$$issions.
REVIEW OF FINAL ORDERS OF T%E COA
A +udgment, resolution or fnal order of the
!ommission on Audit may be brought by the
aggrieved party to the S! on certiorari under
*ue <5 in relation to *ue <9, by fling the
petition within )F days from notice.

REVIEW OF FINAL ORDERS OF T%E
OMBUDSMAN
74
Appeals from decisions of the Ambudsman in
#!"("s'-#'")e !"s1"9l"(#-5 #1'"2(s should be
brought to the !A under *ue 93.
&he !A has +urisdiction over orders, directives
and decisions of the A5ce of the Ambudsman in
administrative cases only under *ue 93.
$ut in cases in which it is alleged that the
Ambudsman has acted with grave abuse
of discretion amounting to lac2 or e'cess
of +urisdiction amounting to lac2 or e'cess
of +urisdiction, a special civil action of
certiorari under *ue <5 may be fled with
the S! to set aside the Ambudsman@s
order or resolution.
I( 1-""(#l 2- (2(*#!"("s'-#'")e 1#se,
the ruling of the Ambudsman shall be
elevated to the S! by way of *ue <5.
&he S!@s power to review over resolutions and
orders of the A5ce of the Ambudsman is
restricted on to determining whether grave abuse
of discretion has been committed by it. &he !ourt
is not authori6ed to correct every error or mista2e
of the A5ce of the Ambudsman other than grave
abuse of discretion. &he remedy is not a petition
for review on certiorari under ,ule *5.
REVIEW OF FINAL ORDERS OF T%E NLRC
&he remedy of a party aggrieved by the decision
of the <ational Gabor ,elations !ommission
(<G,!) is to promptly move for the
reconsideration of the decision and if denied to
timely fle a special civil action of certiorari under
,ule 85 within 8F days from notice of the
decision.
n observance of the doctrine of hierarchy of
courts, the petition for certiorari should be fled in
the !A (St. ,"rtin Guner" Fo$es 6s. -5*C, Se!t.
1<, 199=). Should the same be fled with the S!,
the latter shall dismiss the same instead of
referring the action to the !A.
REVIEW OF FINAL ORDERS OF T%E <UASI*
,UDICIAL AGENCIES
Appeals from +udgments and fnal orders of
-uasi.+udicial bodiesLagencies are now
re-uired to be brought to the !A.
&his rule was adopted precisely to provide a
uniform rule of appellate procedure from
-uasi.+udicial bodies.
&he appeal under *ue 93 may be ta2en to the
!A whether the appeal involves a -uestion of
fact, a -uestion of law, or mi'ed -uestions of
fact and law by fling a verifed petition for
review with the !A.
&he appeal shall <A& stay the award,
+udgment, fnal order or resolution sought to
be reviewed ><G9SS the !A shall direct
otherwise upon such terms as it may deem
+ust.
RELIEFS FROM ,UDGMENTS (or petition for
relief from denial of appeal) ORDERS AND
OT%ER PROCEEDINGS .RULE 3C0
A petition for relief from +udgment is an e-uitable
remedy that is allowed only in e'ceptional cases
when there is no other available or ade-uate
remedy.
A remedy where a party see2 to set aside a
+udgment rendered against him by a court
whenever he was un+ustly deprived of a hearing
or was prevented from ta2ing an appeal because
of fraud, accident, mista2e or e'cusable
negligence.
>nder Sec. 5, *ue 3=, the court may grant
preliminary in+unction to preserve the rights of
the parties upon the fling of a bond in favor of
the adverse party. &he bond is conditioned upon
the payment to the adverse party of all damages
and costs that may be awarded to such adverse
party by reason of the issuance of the in+unction
(Sec. 5).
GROUNDS FOR AVAILING OF T%E REMEDY
.PETITION FOR RELIEF0
0hen a +udgment or fnal order is entered, or any
other proceeding is thereafter ta2en against a
party in any court through (a) fraud, (b) accident,
(c) mista2e, or (c) e'cusable negligence (=A;9<),
he may fle a petition in such court and in the
same case praying that the +udgment, order or
proceeding be set aside (Sec. 1, *ue 3=).
0hen the petitioner has been prevented from
ta2ing an appeal by fraud, mista2e, or e'cusable
negligence (Sec. 2).
TIME TO FILE PETITION
A petition for relief from +udgment, order or other
proceedings must be verifed, fled"
%) within 8F days after the petitioner learns
of the +udgment, fnal order, or other
proceeding to be set aside, and
() not more than si' (8) months after such
+udgment or fnal order was entered, or
such proceeding was ta2en.
75
&hese two periods must concur. $oth
periods are not e'tendible and are
never interrupted.
CONTENTS OF PETITION
&he petition must be verifed and must be
accompanied with a5davits showing fraud,
accident, mista2e or e'cusable negligence relied
upon and it must have an a5davit of merit
showing the facts constituting the petitioner@s
good and substantial cause of action or defense,
as the case may be.
ANNULMENT OF ,UDGMENTS OR FINAL
ORDERS AND RESOLUTIONS .RULE 470
&he annulment of +udgment if a remedy
independent of the case where the +udgment
sought to be annulled was rendered and may be
availed of though the +udgment may have been
e'ecuted.
ts purpose is to have the +udgment set aside so
that there will be a renewal of litigation where the
ordinary remedies of new trial, appeal, relief from
+udgment are no longer available without the
petitioner@s fault.
GROUNDS FOR ANNULMENT
(+ou shou' %e " !"rt+ to the c"se)
1) 7.trinsic )raud e'ists when there is a
fraudulent act committed by the prevailing
party outside the trial of the case, whereby
the defeated party was prevented from
presenting fully his side of the case by
deception practiced on him by the prevailing
party.
2) 8ac" of &urisdiction refers to either lac2 of
+urisdiction over the person of the defendant
or over the sub+ect matter of the claim.
PERIOD TO FILE ACTION
f based on 7.trinsic )raud
action must be fled within four (*) years
from its discovery
f based on 8ac" of &urisdiction
before it is barred by laches or estoppels
EFFECTS OF ,UDGMENT OF ANNULMENT
1) An 7.trinsic )raud
a) &he court, upon motion may order the trial
court to try the case as if a motion for new
trial had been granted.
b) &he prescriptive period shall not be
suspended if the e'trinsic fraud is
attributable to the plainti/ in the original
action.
2) An the ground of 8ac" of &urisdiction
a) &he -uestioned +udgment, order or
resolution shall be set aside and
rendered null and void. &he nullity
shall be without pre+udice to the
refling of the original action in the
proper court.
b) &he prescriptive period to re.fle shall
be deemed suspended from the fling
of such original action until the fnality
of the +udgment of annulment.
COLLATERAL ATTAC+ OF ,UDGMENTS
A collateral attac2 is made when, in another
action to obtain a di/erent relief, an attac2 on the
+udgment is made as an incident in said action.
&his is proper only when the +udgment, on its
face, is null and void, as where it is patent that
the court which rendered said +udgment has no
+urisdiction.
H#"$!es"
A petition for certiorari under *ue <5 is a
direct attac2. t is fled primarily to have
an order annulled.
An action for annulment of a +udgment is
li2ewise a direct attac2 on a +udgment.
A motion to dismiss a complaint for
collection of a sum of money fled by a
corporation against the defendant on the
ground that the plainti/ has no legal
capacity to use is a collateral attac2 on
the corporation. A motion to dismiss is
incidental to the main action for sum of
money. t is not fled as an action intended
to attac2 the legal e'istence of the
plainti/.
EXECUTION/ SATISFACTION AND EFFECT OF
,UDGMENTS .Rule 3A0
ssuance of the writ is ministerial
Branting of the writ is +udicial
DIFFERENCE BETWEEN FINALITY OF
,UDGMENT FOR PURPOSE OF APPEALJ FOR
PURPOSES OF EXECUTION
=or purposes of appeal, an order is fnal if it
disposes of the action as opposed to an
interlocutory order which leaves something to be
76
done in the trial court with respect to the merits
of the case.
=or purposes of e'ecution, an order is fnal or
e'ecutory after the lapse of the reglementary
period to appeal and no such appeal has been
perfected.
W%EN EXECUTION S%ALL ISSUEJ
EXECUTION AS A MATTER OF RIG%T .SEC=
10
9'ecution is a matter of right upon the e'piration
of the period to appeal and no appeal was
perfected from a +udgment or order that disposes
of the action or proceeding. Ance a +udgment
becomes fnal and e'ecutory, the prevailing party
can have it e'ecuted as a matter of right, and the
issuance of a writ of e'ecution becomes the
ministerial duty of the court compellable by
mandamus e'cept in certain cases, as when
subse-uent events would render e'ecution of
+udgment un+ust.
:udgments and orders become fnal and e'ecutor
by operation of law and not by +udicial
declaration. &he trial court need not even
pronounce the fnality of the order as the same
becomes fnal by operation of law. ts fnality
becomes a fact when the reglementary period for
appeal lapses, and no appeal is perfected within
such period.
9'ecution is a matter or right, e'cept in the
following cases"
a) 0here +udgment turns out to be
incomplete or conditional#
b) :udgment is novated by the parties#
c) 9-uitable grounds (i.e., change in the
situation of the partiesUsupervening fact
doctrine)
d) 9'ecution is en+oined (i.e., petition for
relief from +udgment or annulment of
+udgment with &,A or writ of preliminary
in+unction)#
e) :udgment has become dormant# or
f) 9'ecution is un+ust or impossible.
DISCRETIONARY EXECUTION .SEC= 20 7
e'ecution pending appeal
t constitutes an e'ception to the general rule
that a +udgment cannot be e'ecuted before the
lapse of the period for appeal or during the
pendency of an appeal.
>nder Sec. 1, *ue 39, e'ecution shall issue only
as a matter of right upon a +udgment or fnal
order that fnally disposes of the action or
proceeding upon the e'ecution of the period to
appeal therefrom if no appeal has been duly
perfected.
A discretionary e'ecution is called MdiscretionaryN
precisely because it is not a matter of right. &he
e'ecution of a +udgment under this concept is
addressed to the discretionary power of the court
and cannot be insisted upon but simply prayed
and hoped for because a discretionary e'ecution
is not a matter of right.
,e-uisites for discretionary e'ecution"
1) &here must be a motion fled by the
prevailing party with notice to the adverse
party#
2) &here must be a hearing of the motion for
discretionary e'ecution#
3) &here must be good reasons to +ustify the
discretionary e'ecution# and
9) &he good reasons must be stated in a
special order (Sec. 2, *ue 39).
%OW A ,UDGMENT IS EXECUTED .SEC= 40
:udgments in actions for in+unction, receivership,
accounting and support, and such other
+udgments as are now or may hereafter be
declared to be immediately e'ecutory, shall be
enforceable after their rendition and shall not be
stayed by an appeal ta2en therefrom, unless
otherwise ordered by the trial court.
An appeal, the appellate court in its discretion
may ma2e an order suspending, modifying,
restoring or granting the in+unction, receivership,
accounting, or award of support. &he stay of
e'ecution shall be upon such terms as to bond or
otherwise as may be considered proper for the
security or protection of the rights of the adverse
party.
:udgments that may be altered or modifed after
becoming fnal and e'ecutory"
%) =acts and circumstances transpire which
render its e'ecution impossible or un+ust#
() Support#
)) nterlocutory +udgment.
EXECUTION BY MOTION OR BY
INDEPENDENT ACTION .SEC= @0
a) Ance revived, then you can fle a motion for
e'ecution
b) 9'ecution by ;A&A< may be had if the
enforcement of the +udgment is sought within
5 years from the date of its entry.
77
c) 9'ecution by <?939<?9<& A!&A< is when
the 5 year period has lapsed from the entry of
+udgment and before it is barred by the
statute of limitations. &his action to revive the
+udgment must be fled within %F years from
the date the +udgment became fnal.
ISSUANCE AND CONTENTS OF A WRIT OF
EXECUTION .SEC= C0
&his is only upon motion and its lifetime is 5
years# as a rule, it is issued by the court of
original +urisdiction
&he writ of e'ecution shall"
%) issue in the name of the ,epublic of the
3hilippines from the court which granted
the motion#
() state the name of the court, the case
number and title, the dispositive part of
the sub+ect +udgment or order# and
)) re-uire the S49,== (shou' $":e " re!ort
e6er+ 3. '"+s) or other proper o5cer to
whom it is directed to enforce the writ
according to its term, in the manner
hereinafter provided"
a) f the e'ecution be against the
property of the +udgment obligor, to
satisfy the +udgment, with interest, out
of the real or personal property of such
+udgment obligor#
b) f it be against real or personal
property in the hands of personal
representatives, heirs, devisees,
legatees, tenants, or trustees of the
+udgment obligor, to satisfy the
+udgment, with interest, out of such
property#
c) f it be for the sale of real or personal
property, to sell such property,
describing it, and apply the proceeds
in conformity with the +udgment, the
material parts of which shall be recited
in the writ of e'ecution#
d) f it be for the delivery of the
possession of real or personal
property, to deliver the possession of
the same, describing it, to the party
entitled thereto, and to satisfy any
costs, damages, rents, or profts
covered by the +udgment out of the
personal property of the person
against whom it was rendered, and if
su5cient personal property cannot be
found, then out of the real property#
and
e) n all cases, the writ of e'ecution shall
specifcally state the amount of the
interest, costs, damages, rents, or
profts due as of the date of the
issuance of the writ, aside from the
principal obligation under the
+udgment. =or this purpose, the motion
for e'ecution shall specify the amounts
of the foregoing reliefs sought by the
movants.
EXECUTION OF ,UDGMENT FOR MONEY
.SEC= A0
") 9mmediate payment on demand : &he
o5cer enforcing the writ shall demand from
the +udgment obligor the immediate payment
of the full amount stated in the +udgment
including the lawful fees in cash, certifed
chec2 payable to the +udgment oblige or "n+
other for$ of !"+$ent "cce!t"%e to him
(Sec. 9).
the sheri/ is re-uired to frst ma2e a
demand on the obligor for the immediate
payment of the full amount stated in the
writ of e'ecution
%) (atisfaction by levy : f the +udgment
obligor cannot pay all or part of the obligation
in cash, certifed chec2 or other mode of
payment, the o5cer shall levy upon the
properties of the +udgment obligor.
&he +udgment obligor shall have the
option to choose which property or part
thereof may be levied upon. Should he fail
to e'ercise the option, the o5cer shall frst
levy on the personal properties, if any, and
then on the real properties if the personal
properties are insu5cient to answer for
the personal +udgment but the sheri/ shall
sell only so much of the property that is
su5cient to satisfy the +udgment and
lawful fees
c) ;arnishment of debts and credits : &he
o5cer may levy on the debts due the
+udgment obligor including ban2 deposits,
fnancial interests, royalties, commissions and
other personal property not capable of
manual delivery in the possession or control
of the third persons.
EXECUTION OF ,UDGMENT FOR SPECIFIC
ACTS .SEC= 100
f the +udgment re-uires a person to perform a
specifc act, said act must be performed but if the
party fails to comply within the specifed time,
the court may direct the act to be done by
someone at the cost of the disobedient party and
the act when so done shall have the e/ect as if
done by the party
78
f the +udgment directs a conveyance of real or
personal property, and said property is in the
3hilippines, the court in lieu of directing the
conveyance thereof, may by an order divest the
title of any party and vest it in others, which shall
have the force and e/ect of a conveyance
e'ecuted in due form of law.
EXECUTION OF SPECIAL ,UDGMENTS .SEC=
110
0hen a +udgment re-uires the performance of
any act other, a certifed copy of the +udgment
shall be attached to the writ of e'ecution and
shall be served by the o5cer upon the party
against whom the same is rendered, or upon any
other person re-uired thereby, or by law, to obey
the same, and such party or person may be
punished for contempt if he disobeys such
+udgment.
EFFECT OF LEVY ON T%IRD PERSONS
&he levy on e'ecution shall create a lien in favor
of the +udgment obligee over the right, title and
interest of the +udgment obligor in such property
at the time of the levy, sub+ect to liens and
encumbrances then e'isting.
PROPERTIES EXEMPT FROM EXECUTION
.SEC= 130
9S!93& as otherwise e'pressly provided by law,
the following property, and no other, shall be
e#e$!t fro$ e#ecution0
1) &he +udgment obligorDs family home as
provided by law, or the homestead in which
he resides, and the land necessarily used in
connection therewith#
2) Ardinary tools and implements personally
used by him in his trade, employment, or
livelihood#
3) &hree horses, or three cows, or three
carabaos, or other beasts of burden, such as
the +udgment obligor may select necessarily
used by him in his ordinary occupation#
9) 4is necessary clothing and articles for
ordinary personal use, e'cluding +ewelry#
5) 4ousehold furniture and utensils necessary for
house2eeping, and used for that purpose by
the +udgment obligor and his family, such as
the +udgment obligor may select, of a value
not e'ceeding %FF,FFF pesos.
<) 3rovisions for individual or family use
su5cient for four months#
;) &he professional libraries and e-uipment of
+udges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not
e'ceeding )FF,FFF pesos#
=) Ane fshing boat and accessories not
e'ceeding the total value of %FF,FFF pesos
owned by a fsherman and by the lawful use
of which he earns his livelihood#
9) So much of the salaries, wages, or earnings of
the +udgment obligor for his personal services
with * months preceding the levy as are
necessary for the support of his family#
1.) Gettered gravestones#
11) ;onies, benefts, privileges, or annuities
accruing or in any manner growing out of any
life insurance#
12) &he right to receive legal support, or money
or property obtained as such support, or any
pension or gratuity from the government# and
13) 3roperties specially e'empted by law (Sec.
13, *ue 39).
f the property is the sub+ect of e'ecution because
of a +udgment for the recovery of the price or
upon +udgment of foreclosure of a mortgage upon
the property, the property is not e'empt from
e'ecution.
PROCEEDINGS W%ERE PROPERTY IS
CLAIMED BY T%IRD PERSONS .SEC= 1@0
f the property levied on is claimed by any person
other than the +udgment obligor or his agent, the
o5cer shall not be bound to 2eep the property,
unless such +udgment obligee, on demand of the
o5cer, fles a bond approved by the court to
indemnify the third.party claimant in a sum not
less than the value of the property levied on.
&he o5cer shall not be liable for damages for the
ta2ing or 2eeping of the property, to any third.
party claimant if such bond is fled.
,e-uisites for a claim by a third person"
a) &he property is levied#
b) &he claimant is a person other than the
+udgment obligor or his agent#
c) ;a2es an a5davit of his title thereto or
right to the possession thereof stating the
grounds of such right or title# and
d) Serves the same upon the o5cer ma2ing
the levy and the +udgment obligee.
IN RELATION TO T%IRD PARTY CLAIM IN
ATTAC%MENT AND REPLEVIN
,emedies available to a third person not party to
the action but whose property is the sub+ect of
e'ecution"
#0 TERCERIA
79
$y ma2ing an a5davit of his title thereto
or his right to possession thereof, stating
the grounds of such right or title.
&he a5davit must be served upon the
sheri/ and the attaching party (Sec. 19,
*ue 5;).
>pon service of the a5davit upon him, the
sheri/ shall not be bound to 2eep the
property under attachment e'cept if the
attaching party fles a bond approved by
the court.
&he sheri/ shall not be liable for damages
for the ta2ing or 2eeping of the property, if
such bond shall be fled.
b) EXCLUSION OR RELEASE OF PROPERTY
>pon application of the third person
through a motion to set aside the levy on
attachment, the court shall order a
summary hearing for the purpose of
determining whether the sheri/ has acted
rightly or wrongly in the performance of
his duties in the e'ecution of the writ of
attachment.
&he court may order the sheri/ to release
the property from the erroneous levy and
to return the same to the third person.
n resolving the application, the court
cannot pass upon the -uestion of title to
the property with any character of fnality
but only insofar as may be necessary to
decide if the sheri/ has acted correctly or
not.
10 INTERVENTION
&his is possible because no +udgment has
yet been rendered and under the rules, a
motion for intervention may be fled any
time before the rendition of the +udgment
by the trial court (Sec. 2, *ue 19).
d) ACCION REINVINDICATORIA
&he third party claimant is not precluded
by Sec. 19, *ue 5; from vindicating his
claim to the property in the same or in a
separate action.
4e may fle a separate action to nullify the
levy with damages resulting from the
unlawful levy and sei6ure. &his action may
be a totally distinct action from the former
case.
RULES ON REDEMPTION
W%AT MAY BE REDEEMEDK
&he right of redemption is available only
to real properties. 0hen personal
properties are sold in e'ecution their sale
is absolute and no right of redemption
may be e'ercised.
W%O MAY REDEEMK
a) :udgment obligor, or his successor in
interest in the whole or any part of the
property#
b) ,edemptioner 7 a creditor having a lien by
virtue of an attachment, +udgment or
mortgage on the property sold, or on
some part thereof, subse-uent to the lien
under which the property was sold.
W%EN TO REDEEMK
a) $y the +udgment obligor . within % year
from the date of the registration of the
certifcate of sale.
b) $y the redemptioner . within % year from
the date of the registration of the
certifcate of sale if he is the frst
redemptioner, or
c) 0ithin 8F days after the last redemption if
he is a subse-uent redemptioner, provided
that the +udgment debtor has not
e'ercised his right of redemption.
n all cases the +udgment obligor shall
have the entire period of one (%) year from
the date of the registration of the sale to
redeem the property. If the &u'3$ent
o%i3or re'ee$s, no further re'e$!tion is
"o)e' "n' he is restore' to his est"te.
REDEMPTION PRICE
#0 B5 '7e ;u!:e(' 2&l":2-
%. 3urchase price
(. %W interest thereon up to the time of
redemption
). Any amount of assessments or ta'es
which the purchaser may have paid
thereon after purchase, and interest on
such last named amount at the same
rate.
f the purchaser be also a creditor having a
prior lien to that of the redemptioner,
other than the +udgment under which such
purchase was made, the amount of such
other lien, with interest.
&0 B5 '7e -e!e9'"2(e-
%. Amount paid on the last redemption#
(. (W interest thereon
). Any amount of assessments or ta'es
which the last previous redemptioner
paid after the redemption by him with
interest on such last.named amount#
80
*. Amount of any liens held by the last
redemptioner prior to his own, with
interest.
Benerally in +udicial foreclosure sale, there is no
right of redemption, but only e-uity of
redemption. n sale of estate property to pay o/
debts of the estate, there is no redemption at all.
Anly in e'tra+udicial foreclosure sale and sale on
e'ecution is there the right of redemption.
f no redemption be made within one (%) year
from the date of the registration of the certifcate
of sale, the purchaser is entitled to a conveyance
and possession of the property# or, if so
redeemed whenever si'ty (8F) days have elapsed
and no other redemption has been made, and
notice thereof given, and the time for redemption
has e'pired, the last redemptioner is entitled to
the conveyance and possession.
>pon the e'piration of the right of redemption,
the purchaser or redemptioner shall be
substituted to and ac-uire all the rights, title,
interest and claim of the +udgment obligor to the
property as of the time of the levy.
&he possession of the property shall be given to
the purchaser or last redemptioner by the same
o5cer unless a third party is actually holding the
property adversely to the +udgment obligor.
EXAMINATION OF ,UDGMENTS OBLIGOR
W%EN ,UDGMENT IS UNSATISFIED .SEC=
3@0
0hen the return of a writ of e'ecution issued
against property of a +udgment obligor, or any
one of several obligors in the same +udgment,
shows that the +udgment remains unsatisfed, in
whole or in part, the +udgment obligee, at any
time after such return is made, shall be entitled
to an order from the court which rendered the
said +udgment, re-uiring such +udgment obligor to
appear and be e'amined concerning his property
and income before such court or before a
commissioner appointed by it, at a specifed time
and place# and proceedings may thereupon be
had for the application of the property and
income of the +udgment obligor towards the
satisfaction of the +udgment.
$ut no +udgment obligor shall be so re-uired to
appear before a court or commissioner outside
the province or city in which such obligor resides
or is found.
EXAMINATION OF OBLIGOR OF ,UDGMENT
OBLIGOR .SEC= 370
0hen the return of a writ of e'ecution against the
property of a +udgment obligor shows that the
+udgment remains unsatisfed, in whole or in part,
and upon proof to the satisfaction of the court
which issued the writ, that person, corporation, or
other +uridical entity has property of such
+udgment obligor or is indebted to him, the court
may, by an order, re-uire such person,
corporation, or other +uridical entity, or any o5cer
or member thereof, to appear before the court or
a commissioner appointed by it, at a time and
place within the province or city where such
debtor resides or is found, and be e'amined
concerning the same.
&he service of the order shall bind all credits due
the +udgment obligor and all money and property
of the +udgment obligor in the possession or in
control of such person, corporation, or +uridical
entity from the time of service# and the court may
also re-uire notice of such proceedings to be
given to any party to the action in such manner
as it may deem proper.
EFFECT OF ,UDGMENT OR FINAL ORDERSB
RES ,UDICATA .SEC= 470
n case of a +udgment or fnal order against a
specifc thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
the +udgment or fnal order is conclusive upon the
title to the thing, the will or administration, or the
condition, status or relationship of the person#
however, the probate of a will or granting of
letters of administration shall only be prima facie
evidence of the truth of the testator or intestate#
n other cases, the +udgment or fnal order is, with
respect to the matter directly ad+udged or as to
any other matter that could have been raised in
relation thereto, conclusive between the parties
and their successors in interest by title
subse-uent to the commencement of the action
or special proceeding, litigating for the same
thing and under the same title and in the same
capacity# and
n any other litigation between the same parties
or their successors in interest, that only is
deemed to have been ad+udged in a former
+udgment or fnal order which appears upon its
face to have been so ad+udged, or which was
actually and necessarily included therein or
necessary thereto.
81
ENFORCEMENT AND EFFECT OF FOREIGN
,UDGMENTS OR FINAL ORDERS .SEC= 4C0
%) n case of a +udgment or fnal order upon a
specifc thing, the +udgment or fnal order is
conclusive upon the title to the thing# and
() n case of a +udgment or fnal order against a
person, the +udgment or fnal order is
presumptive evidence of a right as between
the parties and their successors in interest by
a subse-uent title. n either case, the
+udgment or fnal order may be repelled by
evidence of a want of +urisdiction, want of
notice to the party, collusion, fraud, or clear
mista2e of law or fact.
A foreign +udgment on the mere strength of its
promulgation is not yet conclusive, as it can be
annulled on the grounds of want of +urisdiction,
want of notice to the party, collusion, fraud, or
clear mista2e of law or fact.
t is li2ewise recogni6ed in 3hilippine
+urisprudence and international law that a foreign
+udgment may be barred from recognition if it
runs counter to public policy.
PROVISIONAL REMEDIES .Rules
67*@10
NATURE OF PROVISIONAL REMEDIES
3rovisional remedies are temporary, au'iliary,
and ancillary remedies available to a litigant for
the protection and preservation of his rights while
the main action is pending. &hey are writs and
processes which are not main actions and they
presuppose the e'istence of a principal action.
3rovisional remedies are resorted to by litigants
for any of the following reasons"
%) &o preserve or protect their rights or
interests while the main action is pending#
() &o secure the +udgment#
)) &o preserve the status -uo# or
*) &o preserve the sub+ect matter of the
action.
P-2)"s"2(#l -ee!"es s9e1"He! u(!e- '7e
-ules #-eB
1. 3reliminary attachment (*ue 5;);
2. 3reliminary in+unction (*ue 5=);
3. ,eceivership (*ue 59);
9. ,eplevin (*ue <.); and
5. Support pendent lite (*ue <1).
,URISDICTION OVER PROVISIONAL
REMEDIES
&he court which grants or issues a provisional
remedy is the court which has +urisdiction over
the main action. 9ven an inferior court may grant
a provisional remedy in an action pending with it
and within its +urisdiction.
PRELIMINARY ATTAC%MENT .RULE 670
3reliminary attachment is a provisional remedy
issued upon order of the court where an action is
pending to be levied upon the property of the
defendant so the property may be held by the
sheri/ as security for the satisfaction of whatever
+udgment may be rendered in the.
0hen availed of and is granted in an action
purely in personam, it converts the action to one
that is -uasi in rem. n an action in rem or -uasi
in rem, +urisdiction over the res is su5cient.
:urisdiction over the person of the defendant is
not re-uired.
&here is no separate action called preliminary
attachment. t is availed of in relation to a
principal action.
3reliminary attachment is designed to"
%) Sei6e the property of the debtor before
fnal +udgment and put the same in
custodial egis even while the action is
pending for the satisfaction of a later
+udgment.
() &o enable the court to ac-uire +urisdiction
over the res or the property sub+ect of the
action in cases where service in person or
any other service to ac-uire +urisdiction
over the defendant cannot be a/ected.
&hree stages in the grant of the 3reliminary
Attachment
%) &he court issues the order granting the
application
() &he writ of attachment issues pursuant to
the order granting the writ
)) &he writ if implemented
=or the ( initial stages, it is not necessary that
+urisdiction over the person of the defendant be
frst obtained. 4owever, once the implementation
of the writ commences, the court must have
ac-uired +urisdiction over the defendant for
without such +urisdiction, the court has no power
or authority to act in any manner against the
defendant.
82
PRELIMINARY ATTAC%MENT %AS
T%REE TYPES
(a) PRELIMINARY ATTAC%MENT 7 one issued at
the commencement of the action or at any time
before entry of +udgment as security for the
satisfaction of any +udgment that may be
recovered. 4ere the court ta2es custody of the
property of the party against whom attachment is
directed.
(b) GARNIS%MENT 7 plainti/ see2s to sub+ect
either the property of defendant in the hands of a
third person (garnishee) to his claim or the
money which said third person owes the
defendant. Barnishment does not involve actual
sei6ure of property which remains in the hands of
the garnishee. t simply impounds the property in
the garnishee@s possession and maintains the
status -uo until the main action is fnally decided.
Barnishment proceedings are usually directed
against personal property, tangible or intangible
and whether capable of manual delivery or not.
(c) LEVY ON EXECUTION 7 writ issued by the
court after +udgment by which the property of the
+udgment obligor is ta2en into custody of the
court before the sale of the property on e'ecution
for the satisfaction of a fnal +udgment. t is the
preliminary step to the sale on e'ecution of the
property of the +udgment debtor.
&he grant of the remedy is addressed to
the discretion of the court whether or not
the application shall be given full credit is
discretionary upon the court. n
determining the propriety of the grant, the
court also considers the principal case
upon which the provisional remedy
depends.
GROUNDS FOR ISSUANCE OF WRIT OF
ATTAC%MENT
At the commencement of the action or at any
time before entry of +udgment, a plainti/ or any
proper party may have the property of the
adverse party attached as security for the
satisfaction of any +udgment that may be
recovered in the following cases"
1) n an action for the recovery of a specifed
amount of money or damages, other than
moral and e'emplary, on a cause of action
arising from law, contract, -uasi.contract,
delict or -uasi.delict against a party who is
about to depart from the 3hilippines with
intent to defraud his creditors#
2) n an action for money or property
embe66led or fraudulently misapplied or
converted to his own use by a public
o5cer, or an o5cer of a corporation, or an
attorney, factor, bro2er, agent or cler2, in
the course of his employment as such, or
by any other person in a fduciary
capacity, or for a willful violation of duty#
3) n an action to recover the possession of
property un+ustly or fraudulently ta2en,
detained or converted, when the property,
or any party thereof, has been concealed,
removed, or disposed of to prevent its
being found or ta2en by the applicant or
an authori6ed person#
9) n an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which the
action the action is brought, or in the
performance thereof#
5) n an action against a party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors# or
<) n an action against a party who does not
reside and is not found in the 3hilippines,
or on whom summons may be served by
publication (Sec. 1).
RE<UISITES
&he issuance of an orderLwrit of e'ecution
re-uires the following"
%) &he case must be any of those where
preliminary attachment is proper#
() &he applicant must fle a motion whether
e# !"rte or )ith notice "n' he"rin3#
)) &he applicant must show by a5davit
(un'er o"th) that there is no su5cient
security for the claim sought to be
enforced# that the amount claimed in the
action is as much as the sum of which the
order is granted above all counterclaims#
and
*) &he applicant must post a bond e'ecuted
to the adverse party.
&his is called an A&&A!4;9<&
$A<?, which answers for all
damages incurred by the party
against whom the attachment was
issued and sustained by him by
reason of the attachment.
ISSUANCE AND CONTENTS OF ORDER OF
ATTAC%MENT
An order of attachment may be issued either e'
parte or upon motion with notice and hearing by
the court in which the action is pending, or by the
!A or the S!.
83
t may issue e# !"rte and even before the
summons is served upon the defendant.
4owever, the writ may not be enforced and
validly implemented unless preceded or
simultaneously served with the summons, a copy
of the complaint, application for attachment, the
order of attachment and the attachment bond.
AFFIDAVIT AND BOND
&he order of attachment shall be granted only
when it appears by the a5davit of the applicant
that the re-uisites for a grant of attachment are
present.
&he applicant must thereafter give a bond
e'ecuted to the adverse party in the amount
f'ed by the court in its order granting the
issuance of the writ, conditioned that the latter
will pay all the costs which may be ad+udged to
the adverse party and all damages which he may
sustain by reason of the attachment, if the court
shall fnally ad+udge that the applicant was not
entitled thereto
RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS
9nforcement of the writ or preliminary
attachment must be preceded by
contemporaneously accompanied by the
service of summons, copy of the complaint,
application and a5davit of the attachment
and the bond in favor of the adverse party.
&he failure to ac-uire +urisdiction over the
person of the adverse party shall render the
implementation of the writ void.
9'ceptions to the re-uirement"
1) 0here the summons could not be served
personally or by substituted service
despite diligent e/orts#
2) &he defendant is a resident of the
3hilippines who is temporarily out of the
country#
3) &he defendant is a non.resident# or
9) &he action is one in rem or -uasi in rem
(Sec. 5).
MANNER OF ATTAC%ING REAL AND
PERSONAL PROPERTY
&he sheri/ enforcing the writ shall without delay
and with all reasonable diligence attach, to await
+udgment and e'ecution in the action, only so
much of the property in the 3hilippines of the
party against whom the writ is issued, not e'empt
from e'ecution, as may be su5cient to satisfy the
applicantVs demand.
n attaching ,9AG 3,A39,&O, or growing crops
thereon or any interest therein, a copy of the
order shall be fled with the registry of deeds
along with a description of the property attached
and by leaving a copy of such order with the
occupant of the property, if any or such other
person or his agent if found within the province.
n attaching 39,SA<AG 3,A39,&O capable of
manual delivery . by ta2ing and safely 2eeping it
in his custody after issuing the corresponding
receipt therefor.
As to S&A!TS A, S4A,9S, or an interest thereon,
by leaving with the president or managing agent
of the company, a copy of the writ, and a notice
stating that the stoc2 or interest of the party
against whom the attachment is issued is
attached in pursuance of such writ.
?9$&S A<? !,9?&S, including ban2 deposits,
fnancial interest, royalties, commissions and
other personal property not capable of manual
delivery shall be attached by leaving with the
person owing such debts, or in possession or
control of such credits or other personal property,
or with his agent, a copy of the writ, and notice
that such properties are attached.
As to interest of the party against whom
attachment is issued in property $9GA<B<B &A
&49 9S&A&9 A= &49 ?9!9?9<& are attached by
giving a copy of the writ and notice to the
e'ecutor or administrator and the o5ce of the
cler2 of court where is the estate is being settled.
f the property to be attached is < CES1I4IA
5HJIS, a copy of the writ shall be fled with the
proper court or -uasi.+udicial agency, and notice
of the attachment served upon the custodian of
such property.
W%EN PROPERTY ATTAC%ED IS CLAIMED BY
T%IRD PERSON
&he third party may resort to any of the following
remedies which are cumulative and thus could be
resorted independently and separately from the
others"
a) 4e may avail of the remedy of terceri" .
by ma2ing an a5davit of his title thereto
or his right to possession thereof, stating
the grounds of such right or title. &he
a5davit must be served upon the sheri/
and the attaching party. &he sheri/ shall
not be bound to 2eep the property under
attachment e'cept if the attaching party
fles a bond approved by the court.
84
b) &he third person may invo2e the court@s
authority in the same case and move for a
summary hearing on his claim to decide if
the sheri/ has acted correctly or not.
c) &he third party may fle a separate action
to nullify the levy with damages resulting
from the unlawful levy and sei6ure. &his
action may be totally distinct from the
case in which the attachment was issued.
%OW TO PREVENT T%E ATTAC%MENT
&he party whose property is sought to be
attached, my prevent the attachment by doing
either of two things"
%) $y depositing with the court an amount
e-ual to the value of the property to be
attached# or
() $y giving a counter bond e'ecuted to the
applicant, in an amount e-ual to the bond
posted by the latter to secure the
attachment.
DISC%ARGE OF ATTAC%MENT AND T%E
COUNTER*BOND
f the attachment has already been enforced, the
party whose property has been attached may fle
a ;A&A< to discharge the attachment. &his
motion shall be with notice and hearing. After due
notice and hearing, the court shall discharge the
attachment if the movants ma2es a !AS4
?93AS& or fles a !A><&9,.$A<? e'ecuted to
the attaching party with the cler2 of court where
the application is made.
Attachment may li2ewise be discharged without
the need for fling of a counter.bond. &his is
possible when the party whose property has been
attached fles a motion to set aside or discharge
the attachment and during the hearing of the
motion, he proves that"
%) &he attachment was improperly or
irregularly issued or enforced# or
() &he bond of the attaching creditor is
insu5cient# or
)) &he attachment is e'cessive and must be
discharged as to the e'cess# or
*) &he property is e'empt from e'ecution,
and as such is also e'empt from
preliminary attachment.
MmproperlyN (e.g. writ of attachment was not
based on the grounds in Sec. %)
MrregularlyN (e.g. writ of attachment was
e'ecuted without previous or
contemporaneous service of summons)
SATISFACTION OF ,UDGMENT OUT OF
PROPERTY ATTAC%ED
f +udgment is rendered in favor of the attaching
party and e'ecution issued, the sheri/ may cause
the +udgment to be satisfed out of the property
attached, if it be su5cient for that purpose.
PRELIMINARY IN,UNCTION .RULE 6C0
!an be provisional remedy and can also
an action
DEFINITIONS AND DIFFERENCESB
PRELIMINARY IN,UNCTION AND
TEMPORARY RESTRAINING ORDER
A preliminary in%unction is an order granted at
any stage of an action or proceeding prior to the
+udgment or fnal order, re-uiring a party or a
court, agency or a person to either refr"in
(prohibitory) from or to !erfor$ (mandatory) a
particular act or acts during the pendency of the
action.
&emporary restraining order (&,A) is issued is an
order to maintain the status -uo between and
among the parties until the determination of the
prayer for a writ of preliminary in+unction. &he
status -uo is the last, actual, peaceable and
uncontested situation which precedes a
controversy.
&he +udge may issue a &,A with a limited life of
(F days from date of issue. f before the
e'piration of the (F day period, the application
for preliminary in+unction is denied, the &,A
would be deemed automatically vacated. f no
action is ta2en by the +udge within the (F day
period, the &,A would automatically e'pire on
the (Fth day by the sheer force of law, no +udicial
declaration to that e/ect being necessary.
A writ of preliminary in+unction cannot be granted
without notice and hearing. A &,A may be
granted e' parte if it shall appear from facts
shown by a5davits or by the verifed application
that great or irreparable in+ury would result to the
applicant before the matter can be heard on
notice, the court in which the application for
preliminary in+unction was made my issue a &,A
e' parte for a period not e'ceeding (F days from
service to the party sought to be en+oined.
RE<UISITES
%) &here must be a verifed petition,
() &he application must establish that he has a
right of relief or a right to be protected and
85
that the act against which the in+unction is
sought violates such right,
)) &he applicant must establish that there is a
need to restrain the commission of the
continuance of the acts complained of and if
not en+oined would wor2 in+ustice to him,
*) A bond must be posted, unless otherwise
e'empted by the court.
5) &he threatened in+ury must be incapable of
pecuniary estimation.
+INDS OF IN,UNCTION
PRO%IBITORY 7 its purpose is to prevent a
person from the performance of a particular act
which has not yet been performed.
%) P-el""(#-5 7 secured before the fnality
of +udgment.
() F"(#l 7 issued as a +udgment, ma2ing the
in+unction permanent. t perpetually
restrains a person from the continuance or
commission of an act and confrms the
previous preliminary in+unction. t is one
included in the +udgment as the relief or
part of the relief granted as a result of the
action, hence, granted only after trial and
no bond is re-uired.
MANDATORY 7 its purpose is to re-uire a person
to perform a particular positive act which has
already been performed and has violated the
rights of another.
a) 3reliminary
b) =inal
,e-uisites for the issuance of mandatory
preliminary in+unction
(a) &he invasion of the right is material and
substantial#
(b) &he right of a complainant is clear and
unmista2able#
(c) &here is an urgent and permanent
necessity for the writ to prevent serious
damage.
W%EN WRIT MAY BE ISSUED
t may be issued at any stage prior to the
+udgment or fnal order.
GROUNDS FOR ISSUANCE OF PRELIMINARY
IN,UNCTION
%) &he applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission or
continuance of the act or acts complained of,
or in re-uiring the performance of an act or
acts either for a limited period or perpetually#
or
() &he commission, continuance or non.
performance of the act or acts complained of
during the litigation would probably wor2
in+ustice to the applicant# or
)) A party, court, agency or a person is doing,
threatening or is attempting to do, or is
procuring or su/ering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the sub+ect of the action
or proceeding, and tending to render the
+udgment ine/ectual.
GROUNDS FOR OB,ECTION TO OR FOR T%E
DISSOLUTION OF IN,UNCTION OR
RESTRAINING ORDER
%) >pon showing of insu5ciency of the
application#
() Ather grounds upon a5davit of the party or
person en+oined#
)) Appears after hearing that irreparable
damage to the party or person en+oined will
be caused while the applicant can be fully
compensated for such damages as he may
su/er, and the party en+oined fles a counter.
bond#
*) nsu5ciency of the bond#
5) nsu5ciency of the surety or sureties.
DURATION OF TRO
&he lifetime of a &,A is (F days, which is non.
e'tendible (A, .2/.2/.;/SC).
f it is shown that the applicant would su/er 3re"t
or irre!"r"%e in&ur+ before the application for the
writ of in+unction can be heard, the court may
issue a temporary restraining order (&,3) e#
!"rte which shall be e/ective for a period not
e'ceeding twenty ((F) days from service on the
party sought to be en+oined. 0ithin the said
twenty.day period, the court must order said
party to show cause why the in+unction should
not be granted, determine within the same period
whether or not the preliminary in+unction shall be
granted, and accordingly issue the corresponding
order.
f the matter is of e'treme urgency and the
applicant will su/er grave in+ustice and
irreparable in+ury, the e'ecutive +udge of a
multiple.sala court or the presiding +udge of a
single sala court may issue e# !"rte a temporary
restraining order e/ective for only seventy.two
(J() hours. 0ithin such period, the +udge shall
conduct a summary hearing to determine
whether the temporary restraining order shall be
e'tended to (F days. &he J( hours shall be
included in the ma'imum (F day period.
86
f a &,A is by the !ourt of Appeals or a member
thereof, it shall be e/ective for si'ty (8F) days
from notice to service party to be en+oined.
f a &,A is issued by the Supreme !ourt or a
member thereof, it shall be e/ective until further
orders.
BAN OF TRO OR WRIT OF IN,UNCTION IN
CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PRO,ECTSB RA CA76
<o court e'cept the S! shall issue any or
preliminary in+unction or preliminary mandatory
in+unction against the government or it
subdivisions, o5cials or any person or entity
whether public or private acting under the
government direction, to restrain, prohibit or
compel the following acts"
%) Ac-uisition, clearance and development of
the right of way andLor site or location of
any government pro+ect,
() $idding or awarding of a contract or
pro+ect of the national government,
)) !ommencement, prosecution, e'ecution,
implementation, operation of any such
contract or pro+ect,
*) &ermination or rescission of any such
contractLpro+ect and
5) &he underta2ing or authori6ation of any
other lawful activity necessary for such
contract or pro+ect.
Any &,A, preliminary in+unction and
preliminary mandatory in+unction issued in
violation of the above prohibition shall be
void.
9'ceptions to the prohibition"
a) n cases of e'treme urgency#
b) f it involves constitutional issue#
c) Brave in+ustice and irreparable
in+ury will arise unless a &,A is
issued.
n one case, the S! said that in+unction is
not available to stop infrastructure
pro+ects of the government including
arrastre and stevedoring operations.
RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTAC%MENT
0hen an application for a writ of preliminary
in+unction or &,A is made in a complaint or other
initiatory pleading, the case, if fled in a multi.sala
court, shall be raXed only after notice to and in
the presence of the adverse party. n any event,
such notice shall be preceded or
contemporaneously accompanied by a service of
summons, together with a copy of the complaint
or initiatory pleading and the applicant@s a5davit
and bond, upon the adverse party in the
3hilippines.
t is not available where
a) the summons could not be served
personally or by substituted service
despite diligent e/orts or
b) where the adverse party is a resident of
the 3hilippines temporarily absent
therefrom or is a non.resident thereof.
SUMMARY>STAGES OF IN,UNCTION
.10 SEVENTY*TWO .720 %OUR TEMPORARY
RESTRAINING ORDER
a) f the matter is of e'treme urgency and
the applicant will su/er grave in+ustice
and irreparable in+ury#
b) ssued by e'ecutive +udge of a multi.sala
court or the presiding +udge of a single.
sala court#
c) &hereafter must
i. Serve summons and other
documents
ii. !onduct summary hearing to
determine whether the &,A shall
be e'tended to (F days until the
application for preliminary
in+unction can be heard.
.20 TWENTY .200 DAY TRO
a) f it shall appear from the facts shown by
a5davits or by the verifed application
that great or irreparable in+ury would
result to the applicant before the matter
can be heard on notice#
b) f application is included in initiatory
pleading"
%. <otice of raXe shall be preceded,
or contemporaneously
accompanied, by service of
summons, together with a copy of
the complaint or initiatory pleading
and the applicantDs a5davit and
bond, upon the adverse party in
the 3hilippines#
(. ,aXed only after notice to and in
the presence of the adverse party
or the person to be en+oined.
c) ssued with summary hearing (to
determine whether the applicant will
su/er great or irreparable in+ury) within (*
hours after sheri/Ds return of service
andLor records are received by the branch
selected by raXe#
87
d) 0ithin (F.day period, the court must order
said person to show cause why the
in+unction should not be granted, and
determine whether or not the preliminary
in+unction shall be granted, and
accordingly issue the corresponding order#
e) ncluding the original J( hours, total
e/ectivity of &,A shall"
%. <ot e'ceed (F days, if issued by an
,&! or ;&!#
(. <ot e'ceed 8F days, if issued by
the !A or a member thereof#
). >ntil further orders, if issued by the
S!.
f) &,A is automatically vacated upon
e'piration of the period and without
granting of preliminary in+unction#
g) 9/ectivity is not e'tendible without need
of any +udicial declaration to that e/ect#
h) <o court shall have authority to e'tend or
renew the same on the same ground for
which it was issued.
.30 PRELIMINARY IN,UNCTION
a) 4earing and prior notice to the party
sought to be en+oined#
b) f application is included in initiatory
pleading"
%. <otice of raXe shall be preceded,
or contemporaneously
accompanied, by service of
summons, together with a copy of
the complaint or initiatory pleading
and the applicantVs a5davit and
bond, upon the adverse party in
the 3hilippines.
(. ,aXed only after notice to and in
the presence of the adverse party
or the person to be en+oined
c) Applicant posts a bond
.40 FINAL IN,UNCTION
<ote that a bond is re-uired only in
preliminary in+unctions, but is not re-uired
in &,As. After lapse of the (F day &,A, the
court can still grant a preliminary
in+unction.
<ote that irreparable in+ury is always a
re-uisite in &,As. $ut in the J( hour &,A,
grave in+ustice must also be shown. n the
(F day &,A, the ground is great or
irreparable in+ury. 0ithout a preliminary
in+unction, a &,A issued by the !A e'pires
without necessity of court action.
Anly S! ca issue a Status Huo Arder
RECEIVERS%IP .RULE 6A0
!an be applied even +udgment is fnal and
e'ecutory
,eceivership is a provisional remedy wherein
the court appoints a representative to
preserve, administer, dispose of and prevent
the loss or dissipation of the real or personal
property during the pendency of an action.
t may be the principal action itself or a mere
provisional remedy# it can be availed of even
after the +udgment has become fnal and
e'ecutory as it may be applied for to aid
e'ecution or carry +udgment into e/ect.
CASES W%EN RECEIVER MAY BE
APPOINTED
>pon a verifed application, one or more receivers
of the property sub+ect of the action or
proceeding may be appointed by the court where
the action is pending or by the !ourt of Appeals
or by the Supreme !ourt, or a member thereof, in
the following cases"
%. &he party applying for the appointment of
a receiver has an interest in the property
or fund which is the sub+ect of the action
or proceeding, and that such property or
fund is in danger of being lost, or
materially in+ured unless a receiver be
appointed to administer and preserve it#
(. n an action by the mortgagee for the
foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially in+ured, and that
its value is probably insu5cient to
discharge the mortgage debt, or that the
parties have so stipulated in the contract
of mortgage#
). After +udgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the +udgment, or
to aid e'ecution when the e'ecution has
been returned unsatisfed or the +udgment
obligor refuses to apply his property in
satisfaction of the +udgment, or otherwise
to carry the +udgment into e/ect#
*. 0henever in other cases it appears that
the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation.
RE<UISITES
%) Verifed application#
88
() Appointed by the court where the action is
pending, or by the !A or by the S!, or a
member thereof#
?uring the pendency of an appeal, the
appellate court may allow an application
for the appointment of a receiver to be
fled in and decided by the court of origin
and the receiver appointed to be sub+ect
to the control of said court.
)) Applicant@s bond conditioned on paying the
adverse party all damages he may sustain by
the appointment of the receiver in case the
appointment is without su5cient cause#
*) ,eceiver ta2es his oath and fles his bond.
RE<UIREMENTS BEFORE ISSUANCE OF AN
ORDER
%) $efore issuing the order appointing a receiver
the court shall re-uire the applicant to fle a
bond e'ecuted to the party against whom the
application is presented, in an amount to be
f'ed by the court, to the e/ect that the
applicant will pay such party all damages he
may sustain by reason of the appointment of
such receiver in case the applicant shall have
procured such appointment without su5cient
cause# and
() &he court may, in its discretion, at any time
after the appointment, re-uire an additional
bond as further security for such damages.
GENERAL POWERS OF A RECEIVER
%) &o bring and defend, in such capacity, actions
in his own name
() &o ta2e and 2eep possession of the property in
controversy
)) &o receive rents
*) &o collect debts due to himself as receiver or
to the fund, property, estate, person, or
corporation of which he is the receiver
5) &o compound for and compromise the same
8) &o ma2e transfer
J) &o pay outstanding debts
K) &o divide the money and other property that
shall remain among the persons legally
entitled to receive the same
E) &o do such acts respecting the property as the
court may authori6e.
%F) 4owever, funds in the hands of a receiver
may be invested only by order of the court
upon the written consent of all the parties to
the action. <o action may be fled by or
against a receiver without leave of the court
which appointed him.
TWO .20 +INDS OF BONDS
%) A99l"1#('Es B2(! (for appointment of
receiver) 7 &o pay the damages the adverse
party may sustain by reason of appointment
of receiver# and
() Re1e")e-Es B2(! (of the appointed receiver,
aside from oath) 7 &o answer for receiver@s
faithful discharge of his duties.
30 C2u('e- B2(!
TERMINATION OF RECEIVERS%IP
0henever the court, motu proprio or on motion of
either party, shall determine that the necessity
for a receiver no longer e'ists, it shall, after due
notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of
the funds and other property in his possession to
the person ad+udged to be entitled to receive
them, and order the discharge of the receiver
from further duty as such.
&he court shall allow the receiver such reasonable
compensation as the circumstances of the case
warrant, to be ta'ed as costs against the
defeated party, or apportioned, as +ustice
re-uires.
,eceivership shall also be terminated when"
a) its continuance is not +ustifed by the facts
and circumstances of the case# or
b) court is convinced that the powers are
abused.
REPLEVIN .RULE @00
t is a proceeding by which the owner or one who
has a general or special property in the thing
ta2en or detained see2s to recover possession in
specie, the recovery of damages being only
incidental.
,eplevin may be a main action or a provisional
remedy. As a principal action its ultimate goal is
to recover personal property capable of manual
delivery wrongfully detained by a person. >sed in
this sense, it is a suit in itself.
t is a provisional remedy in the nature of
possessory action and the applicant who see2s
immediate possession of the property involved
need not be the holder of the legal title thereto. t
is su5cient that he is entitled to possession
thereof.
W%EN MAY WRIT BE ISSUED
a) &he provisional remedy of replevin can only
be applied for before answer.
89
b) A party praying for the recovery of possession
of personal property may, at the
commencement of the action or at any time
before answer, apply for an order for the
delivery of such property to him.
RE<UISITES
&he applicant must show by his own a5davit or
that of some other person who personally 2nows
the facts"
%) A party praying for the provisional remedy
must fle an application for a writ of
replevin. 4is application must be fled at
the commencement of the action or at any
time before the defendant answers, and
must contain an a5davit particularly
describing the property to which he
entitled of possession.
() &he a5davit must state that the property
is wrongfully detained by the adverse
party, alleging therein the cause of the
detention. t must also state that the
property has not been destrained or ta2en
for ta' assessment or a fne pursuant to
law, or sei6ed under a writ of e'ecution or
preliminary attachment, or otherwise
placed in custo'i" e3is. f it has been
sei6ed, then the a5davit must state that it
is e'empt from such sei6ure or custody.
)) &he a5davit must state the actual mar2et
value of the property# and
*) &he applicant must give a bond, e'ecuted
to the adverse party and double the value
of the property.
AFFIDAVIT AND BONDJ REDELIVERY BOND
A5davit, alleging"
a) &hat the applicant is the owner of property
claimed, describing it or entitled to its
possession#
b) &hat the property is wrongfully detained
by the adverse party, alleging cause of its
detention#
c) &hat the property has not been distrained
or ta2en for ta' assessment or fne or
under writ of e'ecutionLattachment or
placed under custo'i" e3is or if sei6ed,
that it is e'empt or should be released#
and
d) &he actual mar2et value of the property.
$ond, which must be double the value of
property, to answer for the return of property if
ad+udged and pay for such sum as he may
recover from the applicant.
t is re-uired that the redelivery bond be fled
within the period of 5 days after the ta2ing of the
property. &he rule is ;A<?A&A,O.
S%ERIFFES DUTY IN T%E IMPLEMENTATION
OF T%E WRITJ W%EN PROPERTY IS
CLAIMED BY T%IRD PARTY
>pon receiving such order, the sheri/ must serve
a copy on the adverse party, together with a copy
of the application, a5davit and bond, and must
ta2e the property and retain it in his custody.
f the property be concealed in a building or
enclosure, the sheri/ must demand its delivery,
and if it be not delivered, he must cause the
building or enclosure to be bro2en open and ta2e
the property into his possession.
f within fve (5) days after the ta2ing of the
property by the sheri/, the adverse party does
not ob+ect to the su5ciency of the bond or if the
adverse party so ob+ects and the court a5rms its
approval of the applicantVs bond or approves a
new bond, or if the adverse party re-uires the
return of the property but his bond is ob+ected to
and found insu5cient and he does not fle an
approved bond, the property shall be delivered to
the applicant.
f for any reason the property is not delivered to
the applicant, the sheri/ must return it to the
adverse party.
A )rd party claimant may vindicate his claim to
the property, and the applicant may claim
damages against such )rd party, in the same or
separate action.
A claim on the indemnity bond should be fled
within %(F days from posting of such bond.
f the property ta2en is claimed by a third person
and ma2e an a5davit of his title or right to the
possession thereof and serves such a5davit upon
the sheri/ while the latter has possession of the
property and a copy thereof upon the applicant,
the sheri/ shall not be bound to 2eep the
property under replevin or deliver it to the
applicant ><G9SS the applicant on demand of
said sheri/, shall fle a bond approved by the
court to indemnify the third.party claimant in the
sum not less than the value of the property.
&he sheri/ shall not be liable for damages, for the
ta2ing or 2eeping of such property, to any such
third.party claimant if such bond shall be fled.
90
SPECIAL CIVIL ACTIONS .Rules @2
710
NATURE OF SPECIAL CIVIL ACTIONS
Special civil actions are basically ordinary civil
proceedings# what ma2es them special are the
distinct peculiarities inherent in their very nature
not found in ordinary civil actions.
&hey are actions in themselves, but possessing
special matters that re-uired special procedures.
=or this reason, these proceedings are classifed
as special civil actions.
Sec. 1, *ue <2 provides that rules provided for
ordinary civil actions are applicable in special civil
proceedings, which are not inconsistent with or
may serve to supplement the provisions of the
rules relating to such special civil actions.
ORDINARY CIVIL ACTIONS VERSUS SPECIAL
CIVIL ACTIONS
Although both types of actions are governed by
the rules for ordinary civil actions, there are
certain rules that are applicable only to specifc
special civil actions. &he fact that an action is
sub+ect to special rules other than those
applicable to ordinary civil actions is what ma2es
a civil action special.
An ordinary civil action must be based on a
CAUSE OF ACTION. &his means that the
defendant must have performed an act or
omitted to do an act in violation of the rights of
another. &hese defnitions do not ft the
re-uirements of a cause of action in certain
special civil actions.
&he cause of action as defned and re-uired of
an ordinary civil action fnds no application to
the special civil action of declaratory relief. t
fnds no application also in a complaint for
interpleader. n this action, the plainti/ may
fle a complaint even if he has sustained no
actual transgression of his rights. n fact, he
actually has no interest in the sub+ect matter
of the action. &his is not so in an ordinary civil
action.
Ardinary civil actions may be fled initially in
either the ;&! or the ,&! depending upon the
:>,S?!&A<AG A;A><& A, &49 <A&>,9 of the
action involved. An the other hand, there are
special civil actions which can only be fled in an
;&! li2e the actions for forcible entry and
unlawful detainer. &here are also special civil
actions which cannot be commenced in the ;&!,
foremost of which are the petitions for certiorari,
prohibition, and mandamus.
&he V9<>9 in ordinary civil actions is determined
by either the residence of the parties where the
action is personal or by the location of the
property where the action is real. &his does not
always apply to a special civil action.
0hile ordinary civil actions when fled are
denominated as Ycomplaints, some special civil
actions are not denominated as such but
Ypetitions.
.#0 S9e1"#l 1")"l #1'"2(s "("'"#'e! &5 Hl"(: 28
# Pe'"'"2(B
%) ?eclaratory relief other than similar
remedies#
() ,eview of ad+udication of the !A;9G9!
and !AA#
)) !ertiorari, prohibition and mandamus#
*) Huo warranto# and
5) !ontempt
.&0 S9e1"#l 1")"l #1'"2(s "("'"#'e! &5 Hl"(: 28
# C29l#"('B
%) nterpleader#
() 9'propriation#
)) =oreclosure of real estate mortgage#
*) 3artition# and
5) =orcible entry and unlawful detainer.
,URISDICTION AND VENUE
&he sub+ect matter of a petition for declaratory
relief raises issues which are not capable of
pecuniary estimation and must be fled with the
,egional &rial !ourt. t would be error to fle the
petition with the Supreme !ourt which has no
original +urisdiction to entertain a petition for
declaratory relief.
INTERPLEADER .RULE @20
t is a special civil action fled by a person, who
has property in his possession or an obligation to
render, wholly or partially, against whom two
conIicting claims are made upon the same
sub+ect matter and over which he claims no
interest, to compel the claimants to interplead
and to litigate their conIicting claims among
themselves.
RE<UISITES FOR INTERPLEADER
91
%) &here must be two or more claimants with
adverse or conIicting interests to a property
in the custody or possession of the plainti/#
() &he plainti/ in an action for interpleader has
no claim upon the sub+ect matter of the
adverse claims or if he has an interest at all,
such interest is not disputed by the claimants#
)) &he sub+ect matter of the adverse claims
must be one and the same# and
*) &he parties impleaded must ma2e e/ective
claims.
W%EN TO FILE
0henever conIicting claims upon the same
sub+ect matter are or may be made against a
person who claims no interest whatever in the
sub+ect matter, or an interest which in whole or in
part is not disputed by the claimants, he may
bring an action against the conIicting claimants
to compel them to interplead and litigate their
several claims among themselves.
DECLARATORY RELIEFS AND SIMILAR
REMEDIES .RULE @30
An action for declaratory relief is brought to
secure an authoritative statement of the rights
and obligations of the parties under a contract or
a statute for their guidance in the enforcement or
compliance with the same. &hus, the purpose is
to see2 for a +udicial interpretation of an
instrument or for a +udicial declaration of a
person@s rights under a statute and not to as2 for
a5rmative reliefs li2e in+unction, damages or any
other relief beyond the purpose of the petition as
declared under the ,ules.
&he sub+ect matter in a petition for declaratory
relief is any of the following"
a) ?eed#
b) 0ill#
c) !ontract or other written instrument#
d) Statute#
e) 9'ecutive order or regulation#
f) Ardinance# or
g) Any other governmental regulation.
&he petition for declaratory relief is fled before
the occurrence of any breach or violation of the
deed, contract, statute, ordinance or e'ecutive
order or regulation. t will not prosper when
brought after a contract or a statute has already
been breached or violated. f there has already
been a breach, the appropriate ordinary civil
action and not declaratory relief should be fled.
W%O MAY FILE T%E ACTION
%) Any person interested under a deed, will,
contract or other written instrument or whose
rights are a/ected by a statute, e'ecutive
order or regulation, ordinance or other
governmental regulation may before breach
or violation thereof, bring an action in the ,&!
to determine any -uestion of construction or
validity arising and for a declaration of his
rights or duties, thereunder.
() &hose who may sue under the contract should
be those with interest under the contract li2e
the parties, the assignees and the heirs as
re-uired by substantive law.
)) f it be a statute, e'ecutive order, regulation
or ordinance, the petitioner is one whose
rights are a/ected by the same. &he other
parties are all persons who have or claim any
interest which would be a/ected by the
declaration. &he rights of person not made
parties to the action do not stand to be
pre+udiced by the declaration.
RE<UISITES OF ACTION FOR DECLARATORY
RELIEF
%) &he sub+ect matter must be a deed, will,
contract or other written instrument, statute,
e'ecutive order or regulation or ordinance#
() &he terms of said document or the validity
thereof are doubtful and re-uire +udicial
construction#
)) &here must have been no breach of said
document#
*) &here must be actual +usticiable controversy
or the ripening seeds of one (there is
threatened litigation the immediate future)#
5) there must be allegation of any threatened,
imminent and inevitable violation of
petitioner@s right sought to be prevented by
the declaratory relief sought#
8) &he controversy is between persons whose
interests are adverse#
J) &he issue must be ripe for +udicial
determination e.g. administrative remedies
already e'hausted#
K) &he party see2ing the relief has legal interest
in the controversy# and
E) Ade-uate relief is not available thru other
means.
W%EN COURT MAY REFUSE TO MA+E
,UDICIAL DECLARATION
Brounds for the court to refuse to e'ercise
declaratory relief#
a) A decision would not terminate the
uncertainty or controversy which gave rise
to the action# or
92
b) &he declaration or construction is not
necessary and proper under the
circumstances as when the instrument or
the statute has already been breached.
n declaratory relief, the court is given the
discretion to act or not to act on the petition. t
may therefore choose not to construe the
instrument sought to be construed or could
refrain from declaring the rights of the petitioner
under the deed or the law.
A refusal of the court to declare rights or
construe an instrument is actually the
functional e-uivalent of the dismissal of
the petition.
An the other hand, the court does not have the
discretion to refuse to act with respect to actions
described as similar remedies. &hus, in an action
for reformation of an instrument, to -uiet or to
consolidate ownership, the court cannot refuse to
render a +udgment.
CONVERSION TO ORDINARY ACTION
f before fnal termination of the case, a breach
should ta2e place, the action may be converted
into ordinary action to avoid multiplicity of suits.
Ardinary civil action 7 plainti/ alleges that his
right has been violated by the defendant#
+udgment rendered is coercive in character# a writ
of e'ecution may be e'ecuted against the
defeated party.
Special civil action of declaratory relief 7 an
impending violation is su5cient to fle a
declaratory relief# no e'ecution may be issued#
the court merely ma2es a declaration.
PROCEEDINGS CONSIDERED AS SIMILAR
REMEDIES
Similar remedies are"
(a) Action for reformation of an
instrument#
(b) Action for -uieting of title# and
(c) Action to consolidate ownership (Art.
%8FJ, !ivil !ode).
A= REFORMATION OF AN INSTRUMENT
t is not an action brought to reform a contract
but to reform the instrument evidencing the
contract. t presupposes that there is nothing
wrong with the contract itself because there is a
meeting of minds between the parties.
&he contract is to be reformed because despite
the meeting of minds of the parties as to the
ob+ect and cause of the contract, the instrument
which is supposed to embody the agreement of
the parties does not reIect their true agreement
by reason of mista2e, ine-uitable conduct or
accident. &he action is brought so the true
intention of the parties may be e'pressed in the
instrument (Art. 1359, CC).
&he instrument may be reformed if it does not
e'press the true intention of the parties because
of lac2 of s2ill of the person drafting the
instrument (Art. 13<3, CC).
f the parties agree upon the mortgage or pledge
of property, but the instrument states that the
property is sold absolutely or with a right of
repurchase, reformation of the instrument is
proper (Art. 13<5, CC).
0here the consent of a party to a contract has
been procured by fraud, ine-uitable conduct or
accident, and an instrument was e'ecuted by the
parties in accordance with the contract, what is
defective is the contract itself because of vitiation
of consent.
&he remedy is not to bring an action for
reformation of the instrument but to fle an action
for annulment of the contract (Art. 1359, CC).
,eformation of the instrument cannot be brought
to reform any of the following"
1) Simple donation inter 6i6os wherein no
condition is imposed#
2) 0ills# or
3) 0hen the agreement is void (Art. 1<<<,
CC).
B= CONSOLIDATION OF OWNERS%IP
&he concept of consolidation of ownership under
Art. 1<.;, Ci6i Co'e, has its origin in the
substantive provisions of the law on sales. >nder
the law, a contract of sale may be e'tinguished
either by legal redemption (Art. 1<19) or
conventional redemption (Art. 1<.1).
Gegal redemption (retr"cto e3") is a statutory
mandated redemption of a property previously
sold. =or instance, a co.owner of a property may
e'ercise the right of redemption in case the
shares of all the other co.owners or any of them
are sold to a third person (Art. 1<2.). &he owners
of ad+oining lands shall have the right of
redemption when a piece of rural land with a si6e
of one hectare or less is alienated (Art. 1<21).
93
!onventional redemption (!"cto 'e retro) sale is
one that is not mandated by the statute but one
which ta2es place because of the stipulation of
the parties to the sale. &he period of redemption
may be f'ed by the parties in which case the
period cannot e'ceed ten (%F) years from the
date of the contract. n the absence of any
agreement, the redemption period shall be four
(*) years from the date of the contract (Art.
1<.<).
0hen the redemption is not made within the
period agreed upon, in case the sub+ect matter of
the sale is a real property, Art. 1<.; !ro6i'es
th"t the consoi'"tion of o)nershi! in the 6en'ee
sh" not %e recor'e' in the *e3istr+ of Pro!ert+
)ithout " &u'ici" or'er, "fter the 6en'or h"s
%een 'u+ he"r'.
T7e #1'"2( &-2u:7' '2 12(s2l"!#'e
2$(e-s7"9 "s (2' 82- '7e 9u-92se 28
12(s2l"!#'"(: '7e 2$(e-s7"9 28 '7e 9-29e-'5
"( '7e 9e-s2( 28 '7e )e(!ee 2- &u5e- &u' 82-
'7e -e:"s'-#'"2( 28 '7e 9-29e-'5= &he lapse of
the redemption period without the seller a retro
e'ercising his right of redemption consolidates
ownership or title upon the person of the vendee
by operation of law. Art. 1<.; re-uires the fling
of the petition to consolidate ownership because
the law precludes the registration of the
consolidated title without +udicial order.
C= <UIETING OF TITLE TO REAL PROPERTY
&his action is brought to remove a cloud on title
to real property or any interest therein. &he
action contemplates a situation where the
instrument or a record is apparently valid or
e/ective but is in truth and in fact invalid,
ine/ective, voidable or unenforceable, and may
be pre+udicial to said title to real property.
t may also be brought as a preventive remedy to
prevent a cloud from being cast upon title to real
property or any interest therein (Art. 9;<).
&he plainti/ need not be in possession of the real
property before he may bring the action as long
as he can show that he has a legal or an
e-uitable title to the property which is the sub+ect
matter of the action (Art. 9;;).
REVIEW OF ,UDGMENTS AND FINAL ORDERS
OR RESOLUTION OF T%E COMELEC AND COA
.RULE @40
A +udgment or fnal order or resolution of the
!ommission on 9lections and the !ommission on
Audit may be brought by the aggrieved party to
the Supreme !ourt on certiorari. &he fling of a
petition for certiorari shall not stay the e'ecution
of the +udgment or fnal order or resolution sought
to be reviewed, unless the S! directs otherwise
upon such terms as it may deem +ust. &o prevent
the e'ecution of the +udgment, the petitioner
should obtain a temporary restraining order or a
writ of preliminary in+unction because the mere
fling of a petition does not interrupt the course of
the principal case.
4ecisions of the Ci6i Ser6ice Co$$ission sh" %e
"!!e"e' to the Court of A!!e"s )hich h"s
e#cusi6e "!!e"te &uris'iction o6er "
&u'3$ents or ?n" or'ers of such co$$ission (*A
;9.2).
&he petition shall be fled within thirty ()F) days
from notice of the +udgment or fnal order or
resolution sought to be reviewed. &he fling of a
motion for new trial or reconsideration of said
+udgment or fnal order or resolution, if allowed
under the procedural rules of the !ommission
concerned, shall interrupt the period herein f'ed.
f the motion is denied, the aggrieved party may
fle the petition within the remaining period, but
which shall not be less than fve (5) days in any
event, rec2oned from notice of denial.
<ote that petition for review from decisions of
-uasi.+udicial agencies to the !A should be within
%5 days and does not stay the decision appealed.
3etition for review from decisions of the ,&!
decided in its appellate +urisdiction fled to the !A
should be fled within %5 days and stays
e'ecution, unless the case is under the rules of
Summary 3rocedure. Special civil actions of
certiorari, prohibition, and mandamus, from
!omelec and !AA should be fled within )F days,
and does not stay the decision appealed.
$ottomline" ?ecisions of -uasi.+udicial bodies are
not stayed by appeal alone. ?ecisions of regular
courts are stayed on appeal. Although in petition
for review on certiorari to the S! via ,ule *5,
there is no e'press provision on e/ect of appeal
on e'ecution.
&he Mnot less than 5 daysN provision for fling a
pleading applies only to"
a) fling an answer after a denial of a ;t?#
b) fling an answer after denial or service of a
bill of particulars#
c) fling an special civil action for certiorari
from a decision of the !omelec or !oA
after denial of a ;f, or ;<&. t does not
apply to fling appeal from decisions of
94
other entities after denial of a ;f, or ;<&.
n such cases, either the parties have a
fresh %5 days, or the balance.
APPLICATION OF RULE @6 UNDER RULE @4
Sec. J, Art. S.A of the !onstitution reads, Munless
otherwise provided by the !onstitution or by law,
any decision, order or ruling of each commission
may be brought to the Supreme !ourt on
certiorari by the aggrieved party within )F days
from receipt of a copy thereof.N &he provision was
interpreted by the Supreme !ourt to refer to
certiorari under ,ule 85 and not appeal by
certiorari under ,ule *5. &o implement the above
constitutional provision, the S! promulgated ,ule
8*.
DISTINCTION IN T%E APPLICATION OF RULE
@6 TO ,UDGMENTS OF T%E COMELEC AND
COA AND T%E APPLICATION OF RULE @6 TO
OT%ER TRIBUNALS/ PERSONS AND
OFFICERS
Rule @4 Rule @6
?irected only to the
+udgments, fnal orders
or resolutions of the
!A;9G9! and !AA#
?irected to any
tribunal, board or
o5cers e'ercising
+udicial or -uasi.+udicial
functions#
=iled within )F days
from notice of the
+udgment#
=iled within 8F days
from notice of the
+udgment#
&he fling of a motion
for reconsideration or a
motion for new trial if
allowed interrupts the
period for the fling of
the petition for
certiorari. f the motion
is denied, the
aggrieved party may
fle the petition within
the remaining period,
but which shall not be
less than 5 days
rec2oned from the
notice of denial.
&he period within which
to fle the petition if the
motion for
reconsideration or new
trial is denied is 8F
days from notice of the
denial of the motion.
5.day ,ule does not apply in fling of
notice of appeal
CERTIORARI/ PRO%IBITION AND MANDAMUS
.RULE @60
Ce-'"2-#-" is a remedy for the correction of errors
of +urisdiction, not errors of +udgment. t is an
original and independent action that was not part
of the trial that had resulted in the rendition of
the +udgment or order complained of. Since the
issue is +urisdiction, an original action for
certiorari may be directed against an
interlocutory order of the lower court prior to an
appeal from the +udgment.
0here the error is not one of +urisdiction, but of
law or fact which is a mista2e of +udgment, the
proper remedy should be appeal. 4ence, if there
was no -uestion of +urisdiction involved in the
decision and what was being -uestioned was
merely the fndings in the decision of whether or
not the practice of the other party constitutes a
violation of the agreement, the matter is a proper
sub+ect of appeal, not certiorari.
)iling of petition for certiorari does not
interrupt the course of the principal action
nor the running of the reglementary periods
involved in the proceeding, unless an
application for a restraining order or a writ
of preliminary in%unction to the appellate
court is granted. <either does it interrupt the
reglementary period for the fling of an answer
nor the course of the case where there is no writ
of in+unction.
n a summary proceeding, petitions for certiorari,
prohibition or mandamus against an interlocutory
order of the court are not allowed.
!ertiorari is not and cannot be made a substitute
for an appeal where the latter remedy is available
but was lost through fault or negligence. &he
remedy to obtain a reversal of +udgment on the
merits is appeal. &his holds true even if the error
ascribed to the lower court is its lac2 of
+urisdiction over the sub+ect matter, or the
e'ercise of power in e'cess thereof, or grave
abuse of discretion. &he e'istence and availability
of the right to appeal prohibits the resort to
certiorari because one of the re-uirements for
certiorari is that there is no appeal.
9'ceptions to the rule that certiorari is not
available when the period for appeal has lapsed
and certiorari may still be invo2ed when appeal is
lost are the following"
%) Appeal was lost without the appellant@s
negligence#
() 0hen public welfare and the advancement
of public policy dictates#
)) 0hen the broader interest of +ustice so
re-uires#
*) 0hen the writs issued are null and void#
and
5) 0hen the -uestioned order amounts to an
oppressive e'ercise of +udicial authority.
95
CERTIORARI PRO%IBITION MANDAMUS
!ertiorari is an e'traordinary
writ A<<>GG<B A, ;A?=O<B
the proceedings of a tribunal,
board or o5cer e'ercising
+udicial or -uasi.+udicial
functions when such tribunal,
board or o5cer has acted
without or in e'cess of its or his
+urisdiction, or with grave abuse
of discretion amounting to lac2
or e'cess of +urisdiction, there
being no appeal or any other
plain, speedy and ade-uate
remedy in the ordinary course
of law (Sec. 1, *ue <5).
3rohibition is an e'traordinary
writ !A;;A<?<B a tribunal,
corporation, board or person,
whether e'ercising +udicial,
-uasi.+udicial or ministerial
functions, &A ?9SS& from
further proceedings when said
proceedings are without or in
e'cess of its +urisdiction, or with
abuse of its discretion, there
being no appeal or any other
plain, speedy and ade-uate
remedy in the ordinary course
of law (Sec. 2, *ue <5).
;andamus is an e'traordinary
writ commanding a tribunal,
corporation, board or person, to
do an act ,9H>,9? to be done"
a) 0hen he unlawfully neglects
the performance of an act
which the law specifcally
en+oins as a duty, and there
is no other plain, speedy and
ade-uate remedy in the
ordinary course of law# or
b) 0hen one unlawfully
e'cludes another from the
use and en+oyment of a right
or o5ce to which the other
is entitled (Sec. 3, *ue <5).
?irected against a person
e'ercising to +udicial or -uasi.
+udicial functions
?irected against a person
e'ercising +udicial or -uasi.
+udicial functions, or ministerial
functions
?irected against a person
e'ercising ministerial duties
&he tribunal, board or o5cer
has acted without, or in e'cess
of +urisdiction or with abuse of
discretion amounting to lac2 or
e'cess or +urisdiction
&he tribunal, corporation, board
or person must have acted
without or in e'cess of
+urisdiction or with grave abuse
of discretion amounting to lac2
of +urisdiction#
t must be the duty of the
defendant to perform the act,
which is ministerial and not
discretionary, because the same
is mandated by law.
&here is no "!!e" or "n+ !"in,
s!ee'+ "n' "'e(u"te re$e'+
in the or'in"r+ course of ").
&here is no "!!e" or "n+ !"in,
s!ee'+ "n' "'e(u"te re$e'+
in the or'in"r+ course of ").
&he 'efen'"nt un")fu+
ne3ects the !erfor$"nce of the
'ut+ en&oine' %+ ")#
Ab+ect is '2 12--e1' Ab+ect is '2 9-e)e(' Ab+ect is '2 129el
3urpose is to "nnu or $o'if+
the !rocee'in3s
3urpose is to sto! the
!rocee'in3s
3urpose is to co$!e
!erfor$"nce of the "ct re(uire'
"n' to coect '"$"3es
3erson or entity must have
acted without or in e'cess of
+urisdiction, or with grave abuse
of discretion
3erson or entity must have
acted without or in e'cess of
+urisdiction, or with grave abuse
of discretion
3erson must have neglected a
ministerial duty or e'cluded
another from a right or o5ce
A person aggrieved thereby
may fle a verifed petition in
the proper court, alleging the
facts with certainty and praying
that +udgment be rendered
annulling or modifying the
proceedings of such tribunal,
board or o5cer, and granting
such incidental reliefs as law
and +ustice may re-uire. &he
petition shall be accompanied
by a certifed true copy of the
A person aggrieved thereby
may fle a verifed petition in
the proper court, alleging the
facts with certainty and praying
that +udgment be rendered
commanding the respondent to
desist from further proceedings
in the action or matter specifed
therein, or otherwise granting
such incidental reliefs as law
and +ustice may re-uire. &he
petition shall li2ewise be
&he person aggrieved thereby
may fle a verifed petition in
the proper court, alleging the
facts with certainty and praying
that +udgment be rendered
commanding the respondent,
immediately or at some other
time to be specifed by the
court, to do the act re-uired to
be done to protect the rights of
the petitioner, and to pay the
damages sustained by the
96
+udgment, order or resolution
sub+ect thereof, copies of all
pleadings and documents
relevant and pertinent thereto,
and a sworn certifcation of non.
forum shopping.
accompanied by a certifed true
copy of the +udgment, order or
resolution sub+ect thereof,
copies of all pleadings and
documents relevant and
pertinent thereto, and a sworn
certifcation of non.forum
shopping.
petitioner by reason of the
wrongful acts of the respondent.
&he petition shall also contain a
sworn certifcation of non.forum
shopping.
PRO%IBITION IN,UNCTION
Always the main action ;ay be the main action or +ust a provisional
remedy
?irected against a court, a tribunal e'ercising
+udicial or -uasi.+udicial functions
?irected against a party
Bround must be the court acted without or in
e'cess of +urisdiction
?oes not involve a -uestion of +urisdiction
PRO%IBITION MANDAMUS
&o prevent an act by a respondent &o compel an act desired
;ay be directed against entities e'ercising
+udicial or -uasi.+udicial, or ministerial functions
;ay be directed against +udicial and non.+udicial
entities
9'tends to discretionary functions 9'tends only to ministerial functions
MANDAMUS <UO WARRANTO
!larifes legal duties, not legal titles !larifes who has legal title to the o5ce, or
franchise
,espondent, without claiming any right to the
o5ce, e'cludes the petitioner
,espondent usurps the o5ce
;andamus can be issued to perform an act but not to approve a certain re-uest
IN,UNCTIVE RELIEF
&he court in which the petition is fled may issue
orders e'pediting the proceedings, and it may
also grant a temporary restraining order or a writ
of preliminary in+unction for the preservation of
the rights of the parties pending such
proceedings. &he petition shall not interrupt the
course of the principal case unless a temporary
restraining order or a writ of preliminary
in+unction has been issued against the public
respondent from further proceeding in the case.
&he public respondent shall proceed with the
principal case within ten (%F) days from the fling
of a petition for certiorari with a higher court or
tribunal, absent a &emporary ,estraining Arder
(&,A) or a 0rit of 3reliminary n+unction, or upon
its e'piration. =ailure of the public respondent to
proceed with the principal case may be a ground
for an administrative charge (A, .;/;/12/SC,
4ec. 12, 2..;).
CERTIORARI AS A MODE OF APPEAL
.RULE 460
CERTIORARI AS A SPECIAL CIVIL ACTION
.RULE @60
!alled petition for review on certiorari, is a
mode of appeal, which is but a continuation
of the appellate process over the original
case#
A special civil action that is an original action and not a
mode of appeal, and not a part of the appellate
process but an independent action.
97
See2s to review fnal +udgments or fnal
orders#
;ay be directed against an interlocutory order of the
court or where not appeal or plain or speedy remedy
available in the ordinary course of law
,aises only -uestions of law# ,aises -uestions of +urisdiction because a tribunal,
board or o5cer e'ercising +udicial or -uasi.+udicial
functions has acted without +urisdiction or in e'cess of
+urisdiction or with grave abuse of discretion
amounting to lac2 of +urisdiction#
=iled within %5 days from notice of +udgment
or fnal order appealed from, or of the denial
of petitionerDs motion for reconsideration or
new trial#
=iled not later than 8F days from notice of +udgment,
order or resolution sought to be assailed and in case a
motion for reconsideration or new trial is timely fled,
whether such motion is re-uired or not, the 8F day
period is counted from notice of denial of said motion#
9'tension of )F days may be granted for
+ustifable reasons
9'tension no longer allowed#
?oes not re-uire a prior motion for
reconsideration#
;otion for ,econsideration is a condition precedent,
sub+ect to e'ceptions
Stays the +udgment appealed from# ?oes not stay the +udgment or order sub+ect of the
petition unless en+oined or restrained#
3arties are the original parties with the
appealing party as the petitioner and the
adverse party as the respondent without
impleading the lower court or its +udge#
&he tribunal, board, o5cer e'ercising +udicial or -uasi.
+udicial functions is impleaded as respondent
=iled with only the Supreme !ourt ;ay be fled with the Supreme !ourt, !ourt of Appeals,
Sandiganbayan, or ,egional &rial !ourt
S! may deny the decision $otu !ro!io on
the ground that the appeal is without merit,
or is prosecuted manifestly for delay, or that
the -uestions raised therein are too
unsubstantial to re-uire consideration.
&he remedies of appeal and certiorari are
mutually e'clusive and not alternative or
successive. &he antithetic character of
appeal and certiorari has been generally
recogni6ed and observed save only on
those rare instances when appeal is
satisfactorily shown to be an inade-uate
remedy. &hus, a petitioner must show valid
reasons why the issues raised in his
petition for certiorari could not have been
raised on appeal.
PRO%IBITION MANDAMUS IN,UNCTION
3rohibition is an e'traordinary
writ commanding a tribunal,
corporation, board or person,
whether e'ercising +udicial,
-uasi.+udicial or ministerial
functions, to desist from
further proceedings when said
proceedings are without or in
e'cess of its +urisdiction, or
with abuse of its discretion,
there being no appeal or any
other plain, speedy and
ade-uate remedy in the
ordinary course of law
(Sec. (, ,ule 85).
;andamus is an e'traordinary
writ commanding a tribunal,
corporation, board or person, to
do an act re-uired to be done"
(a) 0hen he unlawfully neglects
the performance of an act which
the law specifcally en+oins as a
duty, and there is no other
plain, speedy and ade-uate
remedy in the ordinary course
of law# or (b) 0hen one
unlawfully e'cludes another
from the use and en+oyment of
a right or o5ce to which the
other is entitled (Sec. ), ,ule
85).
;ain action for in+unction see2s
to en+oin the defendant from
the commission or continuance
of a specifc act, or to compel a
particular act in violation of the
rights of the applicant.
3reliminary in+unction is a
provisional remedy to preserve
the status -uo 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 Ardinary civil action
&o prevent an encroachment, &o compel the performance of a =or the defendant either to
98
e'cess, usurpation or
assumption of +urisdiction#
ministerial and legal duty# refrain from an act or to perform
not necessarily a legal and
ministerial duty#
;ay be directed against
entities e'ercising +udicial or
-uasi.+udicial, or ministerial
functions
;ay be directed against +udicial
and non.+udicial entities
?irected against a party
9'tends to discretionary
functions
9'tends only to ministerial
functions
?oes not necessarily e'tend to
ministerial, discretionary or
legal functions#
Always the main action Always the main action ;ay be the main action or +ust a
provisional remedy
;ay be brought in the
Supreme !ourt, !ourt of
Appeals, Sandiganbayan, or in
the ,egional &rial !ourt which
has +urisdiction over the
territorial area where
respondent resides.
;ay be brought in the Supreme
!ourt, !ourt of Appeals,
Sandiganbayan, or in the
,egional &rial !ourt which has
+urisdiction over the territorial
area where respondent resides.
;ay be brought in the ,egional
&rial !ourt which has +urisdiction
over the territorial area where
respondent resides.
EXCEPTIONS TO FILING OF MOTION FOR
RECONSIDERATION BEFORE FILING
PETITION
%) 0hen the issue is one purely of law#
() 0hen there is urgency to decide upon the
-uestion and any further delay would
pre+udice the interests of the government or
of the petitioner#
)) 0here the sub+ect matter of the action is
perishable#
*) 0hen order is a patent nullity, as where the
court a -uo has no +urisdiction or there was no
due process#
5) 0hen -uestions have been duly raised and
passed upon by the lower court#
8) 0hen is urgent necessity for the resolution of
the -uestion#
J) 0hen ;otion for ,econsideration would be
useless, e.g. the court already indicated it
would deny any ;otion for ,econsideration#
K) n a criminal case, where relief from order of
arrest is urgent and the granting of such relief
by the trial court is improbable#
E) 0here the proceedings was e' parte or in
which the petitioner had no opportunity to
ob+ect#
%F) 0hen petitioner is deprived of due process
and there is e'treme urgency for urgent relief#
and
%%) 0hen issue raised is one purely of law or
public interest is involved.
RELIEFS PETITIONER IS ENTITLED TO
&he primary relief will be annulment or
modifcation of the +udgment, order or resolution
or proceeding sub+ect of the petition. t may also
include such other incidental reliefs as law and
+ustice may re-uire. &he court, in its +udgment
may also award damages and the e'ecution of
the award for damages or costs.
ACTIONS>OMISSIONS OF MTC>RTC IN
ELECTION CASES
>nder ,ule 85, the proper party who can fle a
petition for certiorari, prohibition or mandamus is
the person aggrieved by the action of a trial court
or tribunal in a criminal case pending before it.
Ardinarily, the petition is fled in the name of the
3eople of the 3hilippines by the Solicitor Beneral.
4owever, there are cases when such petition may
be fled by other parties who have been
aggrieved by the order or ruling of the trial
courts. n the prosecution of election cases, the
aggrieved party is the !omelec, who may fle the
petition in its name through its legal o5cer or
through the Solicitor Beneral if he agrees with the
action of the !omelec.
W%ERE TO FILE PETITION
Su9-ee C2u-' Sub+ect to the doctrine
of hierarchy of courts
and only when
compelling reasons
e'ist for not fling the
same with the lower
courts
Re:"2(#l T-"#l
C2u-'
f the petition relates
to an act or an
omission of an ;&!,
corporation, board,
o5cer or person
C2u-' 28 A99e#ls f the petition involves
99
2(l5 an act or an omission
of a -uasi.+udicial
agency, unless
otherwise provided by
law or rules
C2u-' 28 A99e#ls
2- '7e
S#(!":#(&#5#(
0hether or not in aid
of appellate
+urisdiction
C2"ss"2( 2(
Ele1'"2(s
n election cases
involving an act or an
omission of an ;&! or
,&!
As "$en'e' %+ A,
-o. .;/;/12/SC, 4ec.
12, 2..;
A petition for certiorari must be based on
+urisdictional grounds because as long as the
respondent acted with +urisdiction, any error
committed by him or it in the e'ercise thereof will
amount to nothing more than an error of
+udgment which may be reviewed or corrected by
appeal.
EFFECTS OF FILING OF AN
UNMERITORIOUS PETITION
&he !ourt may impose $otu !ro!rio, based on
res i!s" o(uitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory
an unmeritorious petition for certiorari.
&he court may dismiss the petition if it fnds the
same patently without merit or prosecuted
manifestly for delay, or if the -uestions raised
therein are too unsubstantial to re-uire
consideration.
n such event, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to sub+ecting
counsel to administrative sanctions.
<UO WARRANTO .RULE @@0
Huo warranto is a demand made by the state
upon some individual or corporation to show by
what right they e'ercise some franchise or
privilege appertaining to the state which,
according to the !onstitution and laws they
cannot legally e'ercise by virtue of a grant and
authority from the State.
t is a special civil action commenced by a
verifed petition against"
a) a person who usurps a public o5ce,
position or franchise#
b) a public o5cer who performs an act
constituting forfeiture of a public o5ce# or
c) an association which acts as a corporation
within the 3hilippines without being legally
incorporated or without lawful authority to
do so.
<UO WARRANTO
.RULE @@0
<UO WARRANTO
.ELECTION CODE0
Sub+ect of the
petition is in relation
to an appointive
o5ce#
Sub+ect of the petition
is in relation to an
elective o5ce#
&he issue is the
legality of the
occupancy of the
o5ce by virtue of a
legal appointment#
Brounds relied upon
are" (a) ineligibility to
the position# or (b)
disloyalty to the
,epublic.
3etition is brought
either to the
Supreme !ourt, the
!ourt of Appeals or
the ,egional &rial
!ourt#
;ay be instituted with
the !A;9G9! by any
voter contesting the
election of any member
of !ongress, regional,
provincial or city o5cer#
or to the ;e&!, ;&! or
;!&! if against any
barangay o5cial#
=iled within one (%)
year from the time
the cause of ouster,
or the right of the
petitioner to hold
the o5ce or position
arose#
=iled within ten (%F)
days after the
proclamation of the
results of the election#
3etitioner is the
person entitled to
the o5ce#
3etitioner may be any
voter even if he is not
entitled to the o5ce#
&he court has to
declare who the
person entitled to
the o5ce is if he is
the petitioner.
0hen the tribunal
declares the candidate.
elect as ineligible, he
will be unseated but the
person occupying the
second place will not be
declared as the one
duly elected because
the law shall consider
only the person who,
having duly fled his
certifcate of candidacy,
received a plurality of
votes.
4,9& has +urisdiction involving member of
!ongress
W%EN GOVERNMENT COMMENCE AN
ACTION AGAINST INDIVIDUALS
100
Huo warranto is commenced by a verifed petition
brought in the name of the Bovernment of the
,epublic of the 3hilippines by the Solicitor
Beneral, or in some instances, by a public
prosecutor. 0hen the action is commenced by
the Solicitor Beneral, the petition may be brought
in the ,egional &rial !ourt of the !ity of ;anila,
the !ourt of Appeals or the Supreme !ourt.
An action for the usurpation of a public o5ce,
position or franchise may be commenced by a
verifed petition brought in the name of the
,epublic of the 3hilippines thru the Solicitor
Beneral against"
%) A person who usurps, intrudes into, or
unlawfully holds or e'ercises a public
o5ce, position or franchise#
() A public o5cer who does or su/ers an act
which, by the provision of law, constitutes
a ground for the forfeiture of his o5ce#
)) An association which acts a corporation
within the 3hilippines without being legally
incorporated or without lawful authority so
to act.
W%EN INDIVIDUAL MAY COMMENCE AN
ACTION
&he petition may be commenced by a private
person in his own name where he claims to be
entitled to the public o5ce or position alleged
to have been usurped or unlawfully held or
e'ercised by another.
Accordingly, the private person may maintain
the action without the intervention of the
Solicitor Beneral and without need for any
leave of court.
n bringing a petition for -uo warranto, he
must show that he has a clear right to the
o5ce allegedly being held by another. t is not
enough that he merely asserts the right to be
appointed to the o5ce.
,UDGMENT IN <UO WARRANTO ACTION
Af o5ce, position or franchise, +udgment shall be
rendered that such respondent be ousted and
altogether e'cluded therefrom, and that the
petitioner recover his costs. Such further
+udgment may be rendered determining the
respective rights in and to the public o5ce,
position or franchise of the parties to the action
as +ustice re-uires.
RIG%TS OF A PERSON AD,UDGED ENTITLED
TO PUBLIC OFFICE
f the petitioner is ad+udged to be entitled to the
o5ce, he may sue for damages against the
alleged usurper within one (%) year from the
entry of +udgment establishing his right to the
o5ce in -uestion.
EXPROPRIATION .RULE @70
%) &o be fled with the ,&!# this is action
incapable of pecuniary estimation
() 9'propriation is an e'ercise of the State@s
power of eminent domain wherein the
government ta2es a private property for
public purpose upon payment of +ust
compensation.
MATTERS TO ALLEGE IN COMPLAINT FOR
EXPROPRIATION
An e'propriation proceeding is commenced by
the fling of a verifed complaint which shall"
a) State with certainty the right of the
plainti/ to e'propriation and the purpose
thereof#
b) ?escribe the real or personal property
sought to be e'propriated# and
c) :oin as defendants all persons owning or
claiming to own, or occupying, any part of
the property or interest therein showing as
far as practicable the interest of each
defendant. f the plainti/ cannot with
accuracy identify the real owners,
averment to that e/ect must be made in
the complaint.
TWO STAGES IN EVERY ACTION FOR
EXPROPRIATION
%) ?etermination of the authority of the plainti/
to e'propriate ("!!e""%e "re"'+ "t this
st"3e) 7 this includes an in-uiry into the
propriety of the e'propriation, its necessity
and the public purpose. &his stage will end in
the issuance of an order of e'propriation if the
court fnds for the plainti/ or in the dismissal
of the complaint if it fnds otherwise.
() ?etermination of +ust compensation through
the court.appointed commissioners.
W%EN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF T%E REAL PROPERTY
IN RELATION TO RA CA74
9'cept for the ac-uisition of right.of.way, site or
location for any national government
infrastructure pro+ect through e'propriation, the
e'propriator shall have the right to ta2e or enter
upon the possession of the real property involved
if he deposits with the authori6ed government
depositary an amount e-uivalent to the assessed
101
value of the property for purposes of ta'ation to
be held by such ban2 sub+ect to the orders of the
court. such deposit shall be in money, unless in
lieu thereof the court authori6es the deposit of a
certifcate of deposit of a government ban2 of the
3hilippines payable on demand to the authori6ed
government depositary.
NEW SYSTEM OF IMMEDIATE PAYMENT OF
INITIAL ,UST COMPENSATION
=or the ac-uisition of right.of.way, site or location
for any national government infrastructure
pro+ect through e'propriation, upon the fling of
the fling of the complaint, and after due notice to
the defendant, the implementing agency shall
immediately pay the owner of the property the
amount e-uivalent to the sum of"
1) %FF 39,!9<& of the value of the property
based on the current relevant 6onal
valuation of the $,# and
2) &he value of the improvements andLor
structures as determined un'er Sec. ; of
*A =9;9 (Sec. 9, *A =9;9).
GB> 7 %5W mar2et value
DEFENSES AND OB,ECTIONS
Amnibus ;otion ,ule U a motion attac2ing a
pleading, order, +udgment or proceeding shall
include all ob+ections then available, and all
ob+ections not so included shall be deemed
waived.
f a defendant has no ob+ection or defense to the
action or the ta2ing of his property, he may fle
and serve a notice of appearance and a
manifestation to that e/ect, specifcally
designating or identifying the property in which
he claims to be interested, within the time stated
in the summons. &hereafter, he shall be entitled
to notice of all proceedings a/ecting the same.
f a defendant has any ob+ection to the fling of or
the allegations in the complaint, or any ob+ection
or defense to the ta2ing of his property, he shall
serve his answer within the time stated in the
summons. &he answer shall specifcally designate
or identify the property in which he claims to
have an interest, state the nature and e'tent of
the interest claimed, and adduce all his
ob+ections and defenses to the ta2ing of his
property. <o counterclaim, cross.claim or third.
party complaint shall be alleged or allowed in the
answer or any subse-uent pleading.
A defendant waives all defenses and ob+ections
not so alleged but the court, in the interest of
+ustice, may permit amendments to the answer to
be made not later than ten (%F) days from the
fling thereof.
4owever, at the trial of the issue of +ust
compensation, whether or not a defendant has
previously appeared or answered, he may
present evidence as to the amount of the
compensation to be paid for his property, and he
may share in the distribution of the award.
ORDER OF EXPROPRIATION
f the ob+ections to and the defenses against the
right of the plainti/ to e'propriate the property
are overruled, or when no party appears to
defend as re-uired by this ,ule, the court may
issue an order of e'propriation declaring that the
plainti/ has a lawful right to ta2e the property
sought to be e'propriated, for the public use or
purpose described in the complaint, upon the
payment of +ust compensation to be determined
as of the date of the ta2ing of the property or the
fling of the complaint, whichever came frst.
A fnal order sustaining the right to e'propriate
the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the +ust
compensation to be paid.
After the rendition of such an order, the plainti/
shall not be permitted to dismiss or discontinue
the proceeding e'cept on such terms as the court
deems +ust and e-uitable.
Appealable with the !A
ASCERTAINMENT OF ,UST COMPENSATION
&he order of e'propriation merely declares that
the plainti/ has the lawful to e'propriate the
property but contains no ascertainment of the
compensation to be paid to the owner of the
property.
So upon the rendition of the order of
e'propriation, the court shall appoint not more
than three ()) commissioners to ascertain the +ust
compensation for the property. Ab+ections to the
appointment may be made within %F days from
service of the order of appointment. &he
commissioners are entitled to fees and their fees
shall be ta'ed as part of the costs of the
proceedings, and all costs shall be paid by the
plainti/ e'cept those costs of rival claimants
litigating their claims.
102
0here the principal issue is the determination of
+ust compensation, a hearing before the
commissioners is indispensable to allow the
parties to present evidence on the issue of +ust
compensation. Although the fndings of the
commissioners may be disregarded and the trial
court may substitute its own estimate of the
value, the latter may do so only for valid reasons,
that is where the commissioners have applied
illegal principles to the evidence submitted to
them, where they have disregarded a clear
preponderance of evidence, or where the amount
allowed is either grossly inade-uate or e'cessive.
APPOINTMENT OF COMMISSIONERSJ
COMMISSIONERES REPORTJ COURT ACTION
UPON COMMISSIONERES REPORT
A992"('e('= >pon the rendition of the order of
e'propriation, the court shall appoint not more
than three ()) competent and disinterested
persons as commissioners to ascertain and report
to the court the +ust compensation for the
property sought to be ta2en. &he order of
appointment shall designate the time and place
of the frst session of the hearing to be held by
the commissioners and specify the time within
which their report shall be submitted to the court.
!opies of the order shall be served on the parties.
Ab+ections to the appointment of any of the
commissioners shall be fled with the court within
ten (%F) days from service, and shall be resolved
within thirty ()F) days after all the commissioners
shall have received copies of the ob+ections.
Re92-'= &he court may order the commissioners
to report when any particular portion of the real
estate shall have been passed upon by them, and
may render +udgment upon such partial report,
and direct the commissioners to proceed with
their wor2 as to subse-uent portions of the
property sought to be e'propriated, and may
from time to time so deal with such property. &he
commissioners shall ma2e a full and accurate
report to the court of all their proceedings, and
such proceedings shall not be e/ectual until the
court shall have accepted their report and
rendered +udgment in accordance with their
recommendations. 9'cept as otherwise e'pressly
ordered by the court, such report shall be fled
within si'ty (8F) days from the date the
commissioners were notifed of their
appointment, which time may be e'tended in the
discretion of the court. >pon the fling of such
report, the cler2 of the court shall serve copies
thereof on all interested parties, with notice that
they are allowed ten (%F) days within which to fle
ob+ections to the fndings of the report, if they so
desire.
A1'"2( u92( '7e -e92-'= >pon the e'piration of
the period of ten (%F) days referred to in the
preceding section, or even before the e'piration
of such period but after all the interested parties
have fled their ob+ections to the report or their
statement of agreement therewith, the court
may, after hearing, accept the report and render
+udgment in accordance therewith# or, for cause
shown, it may recommit the same to the
commissioners for further report of facts# or it
may set aside the report and appoint new
commissioners# or it may accept the report in
part and re+ect it in part# and it may ma2e such
order or render such +udgment as shall secure to
the plainti/ the property essential to the e'ercise
of his right of e'propriation, and to the defendant
+ust compensation for the property so ta2en.
RIG%TS OF PLAINTIFF UPON ,UDGMENT
AND PAYMENT
After payment of the +ust compensation as
determined in the +udgment, the plainti/ shall
have the right to enter upon the property
e'propriated and to appropriate the same for the
public use or purpose defned in the +udgment or
to retain possession already previously made.
&itle to the property e'propriated passes from the
owner to the e'propriator upon full payment of
+ust compensation.
EFFECT OF RECORDING OF ,UDGMENT
&he +udgment entered in e'propriation
proceedings shall state defnitely, by an ade-uate
description, the particular property or interest
therein e'propriated, and the nature of the public
use or purpose for which it is e'propriated.
0hen real estate is e'propriated, a certifed copy
of such +udgment shall be recorded in the registry
of deeds of the place in which the property is
situated, and its e/ect shall be to vest in the
plainti/ the title to the real estate so described
for such public use or purpose.
FORECLOSURE OF REAL ESTATE MORTGAGE
.RULE @C0
A real estate mortgage is an accessory
contract e'ecuted by a debtor in favor of a
creditor as security for the principal
obligation.
&his principal obligation is a simple loan or
mutuum described in Art. 1953, Ci6i Co'e. &o
be a real estate mortgage, the contract must
103
be constituted on either immovables (real
property) or inalienable real rights. f
constituted on movables, the contract is a
chattel mortgage (Art. 2129, CC).
A mortgage contract may have a provision
in which the mortgage is a security for
past, present and future indebtedness.
&his clause 2nown as a DRAGNET
CLAUSE OR BLAN+ET mortgage clause
has its origins in American +urisprudence.
&he Supreme !ourt ruled that mortgages
given to secure future advancements are
valid and legal contracts (Pru'enti" B"n:
6s. A6i"r, 9<9 SC*A 353).
,UDGMENT ON FORECLOSURE FOR
PAYMENT OR SALE
f after the trial, the court fnds that the matters
set forth in the complaint are true, it shall render
a +udgment containing the following matters"
a) An ascertainment of the amount due to
the plainti/ upon the mortgage debt or
obligation, including interest and other
charges as approved by the court, as well
as costs#
b) A +udgment of the sum found due#
c) An order that the amount found due be
paid to the court or to the +udgment
obligee within the period of not less than
EF days nor more than %(F days from the
entry of +udgment# and
d) An admonition that in default of such
payment the property shall be sold at
public auction to satisfy the +udgment.
&he +udgment of the court on the above matters
is considered a fnal ad+udication of the case and
hence, is sub+ect to challenge by the aggrieved
party by appeal or by other post.+udgment
remedies.
&he period granted to the mortgagor for the
payment of the amount found due by the court is
not +ust a procedural re-uirement but s
substantive right given by law to the mortgagee
as his frst chance to save his property from fnal
disposition at the foreclosure sale.
SALE OF MORTGAGED PROPERTYJ EFFECT
&he confrmation of the sale shall divest the
rights in the property of all parties to the action
and shall vest their rights in the purchaser,
sub+ect to such rights of redemption as may be
allowed by law. &he title vests in the purchaser
upon a valid confrmation of the sale and
retroacts to the date of sale.
&he import of Sec. 3 includes one vital e/ect" &he
e-uity of redemption of the mortgagor or
redemptioner is cut.o/ and there will be no
further redemption, unless allowed by law (as in
the case of ban2s as mortgagees).
&he e-uity of redemption starts from the ninety.
day period set in the +udgment of the court up to
the time before the sale is confrmed by an order
of the court. O(1e 12(H-e!/ (2 eFu"'5 28
-e!e9'"2( #5 8u-'7e- &e e?e-1"se!=
&he or'er of con?r$"tion is "!!e""%e and if not
appealed within the period for appeal becomes
fnal. >pon the fnality of the order of
confrmation or upon the e'piration of the period
of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property and he may secure a
writ of possession, upon, motion, from the court
which ordered the foreclosure unless a third party
is actually holding the same adversely to the
+udgment obligor.
DISPOSITION OF PROCEEDS OF SALE
&he proceeds of the sale of the mortgaged
property shall, after deducting the costs of the
sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance
or residue after paying o/ the mortgage debt
due, the same shall be paid to +unior
encumbrancers in the order of their priority. f
there be any further balance after paying them or
if there be no +unior encumbrancers, the same
shall be paid to the mortgagor or any person
entitled thereto.
DEFICIENCY ,UDGMENT
f there be a balance due to the plainti/ after
applying the proceeds of the sale, the court, upon
motion, shall render +udgment against the
defendant for any such balance. 9'ecution may
issue immediately if the balance is all due the
plainti/ shall be entitled to e'ecution at such
time as the remaining balance shall become due
and such due date shall be stated in the
+udgment. <ote that the defciency +udgment is in
itself a +udgment hence, also appealable.
<o independent action need be fled to recover
the defciency from the mortgagor. &he defciency
+udgment shall be rendered upon motion of the
mortgagee. &he motion must be made only after
the sale and after it is 2nown that a defciency
104
e'ists. $efore that, any court order to recover the
defciency is void. t has been held that the
mortgagor who is not the debtor and who merely
e'ecuted the mortgage to secure the principal
debtor@s obligation is not liable for the defciency
unless he assumed liability for the same in the
contract.
Since a defciency +udgment cannot be obtained
against the mortgagor who is not the debtor in
the principal obligation, mortgagee may have to
fle a separate suit against the principal debtor.
INSTANCES W%EN COURT CANNOT RENDER
DEFICIENCY ,UDGMENT
0here the debtor.mortgagor is a non.resident
and who at the time of the fling of the action for
foreclosure and during the pendency of the
proceedings was outside the 3hilippines, it is
believed that a defciency +udgment would not be
procedurally feasible.
A 'e?cienc+ &u'3$ent is %+ n"ture in !erson"$
"n' &uris'iction o6er the !erson is $"n'"tor+.
F"6in3 %een outsi'e the countr+, &uris'iction o6er
his !erson cou' not h"6e %een "c(uire'.
EXTRA*,UDICIAL
FORECLOSURE .ACT
31360
,UDICIAL
FORECLOSURE
.RULE @C0
<o complaint is fled# !omplaint is fled with
the courts#
&here is a right of
redemption.
;ortgagor has a right
of redemption for %
year from registration
of the sale#
<o right of redemption
e'cept when
mortgagee is a
ban2ing institution#
e-uity of redemption
only (EF to %(F days,
and any time before
confrmation of
foreclosure sale)#
;ortgagee has to fle
a separate action to
recover any
defciency#
;ortagagee can move
for defciency
+udgment in the same
action
$uyer at public
auction becomes
absolute owner only
after fnality of an
action for
consolidation of
ownership#
$uyer at public
auction becomes
absolute owner only
after confrmation of
the sale#
;ortgagee is given a
special power of
attorney in the
mortgage contract to
;ortgagee need not
be given a special
power of attorney.
foreclose the
mortgaged property
in case of default.
E<UITY OF
REDEMPTION
RIG%T OF
REDEMPTION
&he right of
defendant
mortgagor to
e'tinguish the
mortgage and retain
ownership of the
property by paying
the debt within EF to
%(F days after the
entry of +udgment or
even after the
foreclosure sale but
prior to confrmation.
A right granted to a
debtor mortgagor, his
successor in interest or
any +udicial creditor or
+udgment creditor or
any person having a
lien on the property
subse-uent to the
mortgage or deed of
trust under which the
property is sold to
repurchase the
property within one
year even after the
confrmation of the sale
and even after the
registration of the
certifcate of
foreclosure sale.
;ay be e'ercised
even after the
foreclosure sale
provided it is made
before the sale is
confrmed by order
of the court.
&here is no right of
redemption in a +udicial
foreclosure of
mortgage under ,ule
8K. &his right of
redemption e'ists only
in e'tra+udicial
foreclosures where
there is always a right
of redemption within
one year from the date
of sale (Sec. 3, Act
3135), but interpreted
by the !ourt to mean
one year from the
registration of the sale.
;ay also e'ist in
favor or other
encumbrances. f
subse-uent lien
holders are not
impleaded as parties
in the foreclosure
suit, the +udgment in
favor of the
foreclosing
mortgagee does not
bind the other lien
holders. n this case,
their e-uity of
redemption remains
unforeclosed. A
separate foreclosure
Beneral rule" n +udicial
foreclosures there is
only an e-uity of
redemption which can
be e'ercised prior to
the confrmation of the
foreclosure sale. &his
means that after the
foreclosure sale but
before its confrmation,
the mortgagor may
e'ercise his right of pay
the proceeds of the
sale and prevent the
confrmation of the
sale.
105
proceeding has to be
brought against
them to re-uire
them to redeem
from the frst
mortgagee or from
the party ac-uiring
the title to the
mortgaged property.
f not by ban2s, the
mortgagors merely
have an e-uity of
redemption, which is
simply their right, as
mortgagor, to
e'tinguish the
mortgage and retain
ownership of the
property by paying
the secured debt
prior to the
confrmation of the
foreclosure sale.
9'ception" there is a
right of redemption if
the foreclosure is in
favor of ban2s as
mortgagees, whether
the foreclosure be
+udicial or e'tra+udicial.
&his right of
redemption is e'plicitly
provided in Sec. 9; of
the Jener" B"n:in3
5") of 2.... 0hile the
law mentions the
redemption period to
be one year counted
from the date of
registration of the
certifcate in the
,egistry of 3roperty
PARTITION .RULE @A0
3artition is the separation, division and
assignment of a thing held in common among
those to whom it may belong.
t presupposes the e'istence of a co.ownership
over a property between two or more persons.
&he rule allowing partition originates from a well.
2nown principle embodied in the !ivil !ode, that
no co.owner shall be obliged to remain the co.
ownership. $ecause of this rule, he may demand
at any time the partition of the property owned in
common.
nstances when a co.owner may not demand
partition at any time"
1) &here is an agreement among the co.
owners to 2eep the property undivided for
a certain period of time but not e'ceeding
ten years (Art. 999);
2) 0hen partition is prohibited by the donor
or testator for a period not e'ceeding (F
years (Art. 999);
3) 0hen partition is prohibited by law (Art.
999);
9) 0hen the property is not sub+ect to a
physical division and to do so would
render it unserviceable for the use for
which it is intended (Art. 995);
5) 0hen the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulflled (Art.
1.=9).
W%O MAY FILE COMPLAINTJ W%O S%OULD
BE MADE DEFENDANTS
&he action shall be brought by the person who
has a right to compel the partition of real estate
or of an estate composed of personal property, or
both real and personal property. &he plainti/ is a
person who is supposed to be a co.owner of the
property or estate sought to be partitioned. &he
defendants are all the co.owners. All the co.
owners must be +oined.
Accordingly, an action will not lie without the
+oinder of all co.owners and other persons having
interest in the property. All the co.owners,
therefore, are indispensable parties.
MATTERS TO ALLEGE IN T%E COMPLAINT
FOR PARTITION
&he plainti/ shall state in his complaint, the
nature and e'tent of his title, an ade-uate
description of the real estate of which partition is
demanded, and shall +oin as defendants all other
persons interested in the property. 4e must also
include a demand for the accounting of the rents,
profts and other income from the property which
he may be entitled to. &hese cannot be
demanded in another action because they are
parts of the cause of action for partition. &hey will
be barred if not set up in the same action
pursuant to the rule against splitting a single
cause of action.
STAGES IN EVERY ACTION FOR PARTITION
A reading of the ,ules will reveal that there are
actually three ()) stages in the action, each of
which could be the sub+ect of appeal"
%) the order of partition where the property
of the partition is determined#
() the +udgment as to the accounting of the
fruits and income of the property# and
)) the +udgment of partition.
ORDER OF PARTITION AND PARTITION BY
AGREEMENT
?uring the trial, the court shall determine
whether or not the plainti/ is truly a co.owner of
the property, that there is indeed a co.ownership
among the parties, and that a partition is not
106
legally proscribed thus may be allowed. f the
court so fnds that the facts are such that a
partition would be in order, and that the plainti/
has a right to demand partition, the court will
issue an order of partition.
&he court shall order the partition of the property
among all the parties in interest, if after trial it
fnds that the plainti/ has the right to partition. t
was held that this order of partition including an
order directing an accounting is fnal and not
interlocutory and hence, appealable# thus,
revo2ing previous contrary rulings on the matter.
A fnal order decreeing partition and accounting
may be appealed by any party aggrieved thereby.
P#-'"'"2( &5 #:-eee('= &he order of partition
is one that directs the parties or co.owners to
partition the property and the parties may ma2e
the partition among themselves by proper
instruments of conveyance, if they agree among
themselves. f they do agree, the court shall then
confrm the partition so agreed upon by all of the
parties, and such partition, together with the
order of the court confrming the same, shall be
recorded in the registry of deeds of the place in
which the property is situated. &here always
e'ists the possibility that the co.owners are
unable to agree on the partition. f they cannot
partition the property among themselves, the
ne't stage in the action will follow the
appointment of commissioners.
PARTITION BY COMMISSIONERSJ
APPOINTMENT OF COMMISSIONERS
COMMISSIONERES REPORTJ COURT ACTION
UPON COMMISSIONERES REPORT
f the parties are unable to agree upon the
partition, the court shall appoint not more than
three ()) competent and disinterested persons as
commissioners to ma2e the partition,
commanding them to set o/ to the plainti/ and to
each party in interest such part and proportion of
the property as the court shall direct.
0hen it is made to appear to the commissioners
that the real estate, or a portion thereof, cannot
be divided without pre+udice to the interests of
the parties, the court may order it assigned to
one of the parties willing to ta2e the same,
provided he pays to the other parties such
amounts as the commissioners deem e-uitable,
unless one of the interested parties as2s that the
property be sold instead of being so assigned, in
which case the court shall order the
commissioners to sell the real estate at public
sale under such conditions and within such time
as the court may determine.
&he commissioners shall ma2e a full and accurate
report to the court of all their proceedings as to
the partition, or the assignment of real estate to
one of the parties, or the sale of the same. >pon
the fling of such report, the cler2 of court shall
serve copies thereof on all the interested parties
with notice that they are allowed ten (%F) days
within which to fle ob+ections to the fndings of
the report, if they so desire. <o proceeding had
before or conducted by the commissioners shall
pass the title to the property or bind the parties
until the court shall have accepted the report of
the commissioners and rendered +udgment
thereon.
>pon the e'piration of the period of ten (%F) days
referred to in the preceding section, or even
before the e'piration of such period but after the
interested parties have fled their ob+ections to
the report or their statement of agreement
therewith, the court may, upon hearing, accept
the report and render +udgment in accordance
therewith# or, for cause shown, recommit the
same to the commissioners for further report of
facts# or set aside the report and appoint new
commissioners# or accept the report in part and
re+ect it in part# and may ma2e such order and
render such +udgment as shall e/ectuate a fair
and +ust partition of the real estate, or of its
value, if assigned or sold as above provided,
between the several owners thereof.
,UDGMENT AND ITS EFFECTS
&he +udgment shall state defnitely, by metes and
bounds and ade-uate description, the particular
portion of the real estate assigned to each party,
the e/ect of the +udgment shall be to vest in each
party to the action in severalty the portion of the
real estate assigned to him.
f 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 +udgment shall
state the fact of such payment and of the
assignment of the real estate to the party ma2ing
the payment, and the e/ect of the +udgment shall
be to vest in the party ma2ing the payment the
whole of the real estate free from any interest on
the part of the other parties to the action.
f the property is sold and the sale confrmed by
the court, the +udgment shall state the name of
the purchaser or purchasers and a defnite
description of the parcels of real estate sold to
each purchaser, and the e/ect of the +udgment
shall be to vest the real estate in the purchaser or
purchasers ma2ing the payment or payments,
107
free from the claims of any of the parties to the
action.
A certifed copy of the +udgment shall in either
case be recorded in the registry of deeds of the
place in which the real estate is situated, and the
e'penses of such recording shall be ta'ed as part
of the costs of the action.
PARTITION OF PERSONAL PROPERTY
&he provisions of this ,ule shall apply to
partitions of estates composed of personal
property, or of both real and personal property, in
so far as the same may be applicable.
PRESCRIPTION OF ACTION
3rescription of action does not run in favor of
a co.owner or co.heir against his co.owner or
co.heirs as long as there is a recognition of
the co.ownership e'pressly or impliedly.
&he action for partition cannot be barred by
prescription as long as the co.ownership
e'ists.
$ut while the action to demand partition of a
co.owned property does not prescribe, a co.
owner may ac-uire ownership thereof by
prescription where there e'ists a clear
repudiation of the co.ownership and the co.
owners are apprised of the claim of adverse
and e'clusive ownership.
FORCIBLE ENTRY AND UNLAWFUL DETAINER
.RULE 70)
&he actions for forcible entry and unlawful
detainer belong to the class of actions 2nown by
the generic name "ccion inter'ict" (e+ectment)
where the issue is the right of physical or material
possession of the sub+ect real property
independent of any claim of ownership by the
parties involved.
Accion 9nterdictal comprises two distinct
causes of action"
FORCIBLE ENTRY (!7<75<A+945),
where one is deprived of physical
possession of real property by means of
force, intimidation, strategy, threats or
stealth .FISTS0J
UNLAWFUL DETAINER (!7(A=>9+4),
where one illegally withholds possession
after the e'piration or termination of his
right to hold possession under any
contract, e'press or implied.
FORCIBLE ENTRY UNLAWFUL DETAINER
&he possession of
the defendant is
unlawful from the
beginning# issue is
which party has
prior de facto
possession#
&he possession of the
defendant is lawful from
the beginning becomes
illegal by reason of the
e'piration or
termination of his right
to the possession of the
property#
&he law does not
re-uire previous
demand for the
defendant to
vacate#
3lainti/ must frst ma2e
such demand which is
+urisdictional in nature#
&he plainti/ must
prove that he was
in prior physical
possession of the
premises until he
was deprived by
the defendant# and
&he plainti/ need not
have been in prior
physical possession#
&he one year
period is generally
counted from the
date of actual entry
on the property.
&he one.year period is
counted from the date
of last demand.
ACCION
PUBLICIANA
ACCION
REINVINDICATORIA
A plenary ordinary
civil action for the
recovery of the
better right of
possession (+uridical
possession), must be
fled after the
e'piration of one
year from the accrual
of the cause of action
or from the unlawful
withholding of
possession of the
realty. n other
words, if at the time
of the fling of the
complaint more than
one year had elapsed
since defendant had
turned plainti/ out of
possession or
defendantDs
possession had
become illegal, the
action will be not one
of forcible entry or
unlawful detainer but
an accion
An action for the
recovery of the
e'ercise of ownership,
particularly recovery
of possession as an
attribute or incident of
ownership#
108
&he basis of the
recovery of
possession is the
plainti/Ds real right of
possession or +us
possessionis, which
is the right to the
possession of the
real property
independent of
ownership.
&he basis for the
recovery of
possession is
ownership itself.
:urisdiction is based on the value of the of the
property applying (FT and 5FT rule
%OW TO DETERMINE ,URISDICTION IN
ACCION PUBLICIANA AND ACCION
REINVINDICATORIA
&he actions of forcible entry and unlawful
detainer are within the e'clusive and original
+urisdiction of the ;&!, ;e&! and ;!&! and shall
be governed by the rules on summary procedure
irrespective of the amount of damages or rental
sought to be recovered.
n actions for forcible entry, two allegations are
mandatory for the ;&! to ac-uire +urisdiction"
%) plainti/ must allege his prior physical
possession of the property# and
() he must also allege that he was deprived
of his possession by force, intimidation,
strategy, threat or stealth.
f the alleged dispossession did not occur by any
of these means, the proper recourse is to fle not
an action for forcible entry but a plenary action to
recover possession.
$oth actions must be brought within one year
from the date of actual entry on the land, in case
of forcible entry, and from the date of last
demand, in case of unlawful detainer.
:urisdiction is determined by the allegations of
the complaint. &he mere raising of the issue of
tenancy does not automatically divest the court
of +urisdiction because the +urisdiction of the
court is determined by the allegations of the
complaint and is not dependent upon the
defenses set up by the defendant.
W%O MAY INSTITUTE T%E ACTION AND
W%ENJ AGAINST W%OM T%E ACTION MAY
BE MAINTAINED
A person deprived of the possession of any land
or building by force, intimidation, threat, strategy,
or stealth, or a lessor, vendor, vendee, or other
person against whom the possession of any land
or building is unlawfully withheld after the
e'piration or termination of the right to hold
possession, by virtue of any contract, e'press or
implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person,
may, at any time within one (%) year after such
unlawful deprivation or withholding of possession,
bring an action in the proper ;unicipal &rial !ourt
against the person or persons unlawfully
withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs.
>nless otherwise stipulated, such action by the
lessor shall be commenced only after demand to
pay or comply with the conditions of the lease
and to vacate is made upon the lessee, or by
serving written notice of such demand upon the
person found on the premises, or by posting such
notice on the premises if no person be found
thereon, and the lessee fails to comply therewith
after ffteen (%5) days in the case of land or fve
(5) days in the case of buildings.
PLEADINGS ALLOWED
&he only pleadings allowed to be fled are the
complaint, compulsory counterclaim and cross.
claim pleaded in the answer, and the answers
thereto. All pleadings shall be verifed.
ACTION ON T%E COMPLAINT
&he court may, from an e'amination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case
outright on any of the grounds for the dismissal of
a civil action which are apparent therein. f no
ground for dismissal is found, it shall forthwith
issue summons.
W%EN DEMAND IS NECESSARY
>nless there e'ists a stipulation to the contrary,
an unlawful detainer case shall be commenced
only after the demand to pay or comply with the
conditions of the lease and to vacate is made
upon the lessee.
&he re-uirement for a demand implies that the
mere failure of the occupant to pay rentals or his
failure to comply with the conditions of the lease
does not ipso facto render his possession of the
premises unlawful. t is the failure to comply with
the demand that vests upon the lessor a cause of
action.
109
&he demand may be in the form of a written
notice served upon the person found in the
premises. &he demand may also be made by
posting a written notice on the premises if no
person can be found thereon. t has been ruled,
however, that the demand upon a tenant may be
oral. Su5cient evidence must be adduced to
show that there was indeed a demand li2e
testimonies from disinterested and unbiased
witnesses.
PRELIMINARY IN,UNCTION AND
PRELIMINARY MANDATORY IN,UNCTION
&he court may grant preliminary in+unction, in
accordance with the provisions of *ue 5=, to
prevent the defendant from committing further
acts of dispossession against the plainti/.
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within
fve (5) days from the fling of the complaint,
present a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of
preliminary mandatory in+unction to restore him
in his possession. &he court shall decide the
motion within thirty ()F) days from the fling
thereof.
RESOLVING DEFENSE OF OWNERS%IP
&he assertion by the defendant of ownership over
the disputed property does not serve to divest
the inferior court of its +urisdiction. &he defendant
cannot deprive the court of +urisdiction by merely
claiming ownership of the property involved.
0hen the defendant raises the issue of
ownership, the court may resolve the issue of
ownership only under the following conditions"
%) 0hen the issue of possession cannot be
resolved without resolving the issue of
ownership# and
() &he issue of ownership shall be resolved
only to determine the issue of possession.
Such +udgment would not bar an action between
the same parties respecting title to the land or
building. &he resolution of the ;e&! on the
ownership of the property is merely provisional or
interlocutory. Any -uestion involving the issue of
ownership should be raised and resolved in a
separate action brought specifcally to settle the
-uestion with fnality.
%OW TO STAY T%E IMMEDIATE EXECUTION
OF ,UDGMENT
?efendant must ta2e the following steps to stay
the e'ecution of the +udgment"
%) 3erfect an appeal#
() =ile a supersedeas bond to pay for the
rents, damages and costs accruing down
to the time of the +udgment appealed
from# and
)) ?eposit periodically with the ,&!, during
the pendency of the appeal, the ad+udged
amount of rent due under the contract or
if there be no contract, the reasonable
value of the use and occupation of the
premises.
9'ceptions to the rule"
%) 0here delay in the deposit is due to fraud,
accident, mista2e, or e'cusable
negligence#
() 0here supervening events occur
subse-uent to the +udgment bringing
about a material change in the situation of
the parties which ma2es e'ecution
ine-uitable# and
)) 0here there is no compelling urgency for
the e'ecution because it is not +ustifed by
the circumstances.
SUMMARY PROCEDURE/ PRO%IBITED
PLEADINGS
=orcible entry and unlawful detainer actions are
summary in nature designed to provide for an
e'peditious means of protecting actual
possession or the right to possession of the
property involved. &hese actions shall both fall
under the coverage of the ,ules of Summary
3rocedure irrespective of the amount of damages
or unpaid rental sought to be recovered.
3rohibited pleadings and motions"
a) ;otion to dismiss the complaint e'cept on
the ground of lac2 of +urisdiction over the
sub+ect matter, or failure to comply with
section %(#
b) ;otion for a bill of particulars#
c) ;otion for new trial, or for reconsideration
of a +udgment, or for reopening of trial#
d) 3etition for relief from +udgment#
e) ;otion for e'tension of time to fle
pleadings, a5davits or any other paper#
f) ;emoranda#
g) 3etition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court#
h) ;otion to declare the defendant in default#
i) ?ilatory motions for postponement#
+) ,eply#
2) &hird.party complaints#
l) nterventions
110
CONTEMPT .RULE 710
!ontempt is a disregard of, or disobedience to the
rules or orders of a +udicial body, or an
interruption of its proceedings by disorderly
behavior or insolent language, in its presence or
so near thereto as to disturb the proceedings or
to impair the respect due to such body.
!ontempt of court is disobedience to the court by
acting in opposition to its authority, +ustice and
dignity. t signifes not only a willful disregard or
disobedience of the courtDs orders but also
conduct tending to bring the authority of the
court and the administration of law into disrepute
or, in some manner to impede the due
administration of +ustice.
&he reason for the power to punish for contempt
is that respect of the courts guarantees the
stability of their institution. 0ithout such
guarantee, said institution would be resting on
sha2y foundation.
t is inherent in all courts# its e'istence is
essential to the preservation of order in +udicial
proceedings and to the enforcement of
+udgments, orders and mandates of the courts,
and conse-uently, to the due administration of
+ustice.
C2('e9' 9-21ee!"(:s 7#s !u#l 8u(1'"2(B
%) Vindication of public interest by
punishment of contemptuous conduct#
and
() !oercion to compel the contemnor to do
what the law re-uires him to uphold the
power of the !ourt, and also to secure the
rights of the parties to a suit awarded by
the !ourt.
+INDS OF CONTEMPTJ PURPOSE AND
NATURE OF EAC%
%) !ivil or !riminal, depending on the nature and
e/ect of the contemptuous act.
() ?irect or indirect, according to the manner of
commission.
CIVIL CONTEMPT CRIMINAL CONTEMPT
t is the failure to do
something ordered to
be done by a court or a
+udge for the beneft of
the opposing party
therein and is therefore
t is a conduct directed
against the authority
and dignity of the court
or a +udge acting
+udicially# it is an
obstructing the
and o/ense against the
party in whose behalf
the violated order was
made#
administration of +ustice
which tends to bring
the court into disrepute
or disrespect#
&he purpose is to
compensate for the
beneft of a party#
&he purpose is to
punish, to vindicate the
authority of the court
and protect its outraged
dignity#
&he rules of procedure
governing contempt
proceedings or criminal
prosecutions ordinarily
are inapplicable to civil
contempt proceedings.
Should be conducted in
accordance with the
principles and rules
applicable to criminal
cases, insofar as such
procedure is consistent
with the summary
nature of contempt
proceedings.
DIRECT
CONTEMPT
INDIRECT CONTEMPT
n general is
committed in the
presence of or so
near the court or
+udge while
performing the
+udicial function
as to obstruct or
interrupt the
proceedings
before it#
t is not committed in the
presence of the court, but
done at a distance which
tends to belittle, degrade,
obstruct or embarrass the
court and +ustice#
Acts constitutin3
'irect conte$!t
"re0
a) ;isbehavior in
the presence
of or so near
the court as to
obstruct or
interrupt the
proceedings
before it#
b) ?isrespect
toward the
court#
c) A/ensive
personalities
towards
others#
d) ,efusal to be
sworn as a
witness or to
answer as a
witness#
e) ,efusal to
subscribe an
a5davit or
Acts constitutin3 in'irect
conte$!t "re0
After a charge in writing
has been fled, and an
opportunity given to the
respondent to comment
thereon within such period
as may be f'ed by the
court and to be heard by
himself or counsel, a
person guilty of any of the
following acts may be
punished for indirect
contempt"
%) ;isbehavior an o5cer
of a court in the
performance of his
o5cial duties or in his
o5cial transactions#
() ?isobedience of or
resistance to a lawful
writ, process, order, or
+udgment of a court,
including the act of a
111
deposition
when lawfully
re-uired to do
so#
f) Acts of a party
or a counsel
which
constitute
willful and
deliberate
forum
shopping#
g) >nfounded
accusations or
allegations or
words in a
pleading
tending to
embarrass the
court or to
bring it into
disrepute.
person who, after being
dispossessed or e+ected
from any real property
by the +udgment or
process of any court of
competent +urisdiction,
enters or attempts or
induces another to
enter into or upon such
real property, for the
purpose of e'ecuting
acts of ownership or
possession, or in any
manner disturbs the
possession given to the
person ad+udged to be
entitled thereto#
)) Any abuse of or any
unlawful interference
with the processes or
proceedings of a court
not constituting direct
contempt under section
% of this ,ule#
*) Any improper conduct
tending, directly or
indirectly, to impede,
obstruct, or degrade the
administration of
+ustice#
5) Assuming to be an
attorney or an o5cer of
a court, and acting as
such without authority#
8) =ailure to obey a
subpoena duly served#
J) &he rescue, or
attempted rescue, of a
person or property in
the custody of an o5cer
by virtue of an order or
process of a court held
by him.
=ailure by counsel to inform
the court of the death of his
client constitutes indirect
contempt within the
purview of Sec. 3, *ue ;1,
since it constitutes an
improper conduct tending
to impede the
administration of +ustice.
REMEDY AGAINST INDIRECT CONTEMPTJ
PENALTY
&he punishment for indirect contempt depends
upon the level of the court against which the act
was committed#
a) 0here the act was committed against an
,&! or a court of e-uivalent or higher
ran2, he may be punished by a fne not
e'ceeding )F,FFF pesos or imprisonment
not e'ceeding 8 months, or both#
b) 0here the act was committed against a
lower court, he may be punished by a fne
not e'ceeding 5,FFF pesos or
imprisonment not e'ceeding one month,
or both. Aside from the applicable
penalties, if the contempt consists in the
violation of a writ of in+unction, &,A or
status -uo order, he may also be ordered
to ma2e complete restitution to the party
in+ured by such violation of the property
involved or such amount as may be
alleged and proved#
c) 0here the act was committed against a
person or entity e'ercising -uasi.+udicial
functions, the penalty imposed shall
depend upon the provisions of the law
which authori6es a penalty for contempt
against such persons or entities.
&he person ad+udged in indirect contempt may
appeal from the +udgment or fnal order of the
court in the same manner as in criminal cases.
&he appeal will not however have the e/ect of
suspending the +udgment if the person ad+udged
in contempt does not fle a bond in an amount
f'ed by the court from which the appeal is ta2en.
&his bond is conditioned upon his performance of
the +udgment or fnal order if the appeal is
decided against.
%OW CONTEMPT PROCEEDINGS ARE
COMMENCED
3roceedings for indirect contempt may be
initiated $otu !ro!rio by the court against which
the contempt was committed by an order or any
other formal charge re-uiring the respondent to
show cause why he should not be punished for
contempt.
n all other cases, charges for indirect contempt
shall be commenced by a verifed petition with
supporting particulars and certifed true copies of
documents or papers involved therein, and upon
full compliance with the re-uirements for fling
initiatory pleadings for civil actions in the court
concerned. f the contempt charges arose out of
or are related to a principal action pending in the
court, the petition for contempt shall allege that
fact but said petition shall be doc2eted, heard
and decided separately, unless the court in its
112
discretion orders the consolidation of the
contempt charge and the principal action for +oint
hearing and decision.
W%EN IMPRISONMENT S%ALL BE IMPOSED
0hen the contempt consists in the refusal or
omission to do an act which is yet in the
power of the respondent to perform, he may
be imprisoned by order of the court concerned
until he performs it.
ndefnite incarceration may be resorted to
where the attendant circumstances are such
that the non.compliance with the court order
is an utter disregard of the authority of the
court which has then no other recourse but to
use its coercive power.
0hen a person or party is legally and validly
re-uired by a court to appear before it for a
certain purpose, and when that re-uirement is
disobeyed, the only remedy left for the court
is to use force to bring the person or party
before it.
&he punishment is imposed for the beneft of
a complainant or a party to a suit who has
been in+ured aside from the need to compel
performance of the orders or decrees of the
court, which the contemnor refuses to obey
although able to do so. n e/ect, it is within
the power of the person ad+udged guilty of
contempt to set himself free.
CONTEMPT AGAINST <UASI*,UDICIAL
BODIES
&he rules on contempt apply to contempt
committed against persons or entities
e'ercising -uasi.+udicial functions or in
case there are rules for contempt adopted
for such bodies or entities pursuant to law,
*ue ;1 shall apply suppletorily.
Huasi.+udicial bodies that have the power
to cite persons for indirect contempt can
only do so by initiating them in the proper
,&!. t is not within their +urisdiction and
competence to decide the indirect
contempt cases. &he ,&! of the place
where contempt has been committed shall
have +urisdiction over the charges for
indirect contempt that may be fled.
PECIAL PROCEEDINGS .Rules 72
10A0
Su&;e1' M#''e-s 28 S9e1"#l P-21ee!"(:sB
CATC% AGED S%ARC
%) !hange of <ame
() Adoption
)) &rustees
*) !onstitution of =amily 4ome
5) 4ospitali6ation of nsane 3ersons
8) Absence and ?eath, ?eclaration of
J) Buardianship and !ustody of !hildren
K) 9scheat
E) (Voluntary) ?issolution of !orporation
%F) Settlement of 9state of ?eceased 3ersons
%%) 4abeas !orpus
%() (:udicial) Approval of Voluntary ,ecognition of
;inor <atural !hildren
%)) ,escission and ,evocation of Adoption
%*) !ancellation or !orrection of 9ntries in the
!ivil ,egistry
Special 3roceedings is an application or
proceeding to establish the status or right of a
party, or a particular fact, generally commenced
by application, petition or special form of
pleading as may be provided for by the particular
rule or law.
SETTLEMENT OF ESTATE OF DECEASED
PERSONS .Rules 73 A10
SETTLEMENT OF ESTATE OF DECEASED
PERSONS VENUE AND PROCESS .RULE 730
W%IC% COURT %AS ,URISDICTION
f the decedent is an inhabitant of the 3hilippines
at the time of his death, whether a citi6en or an
alien, his will shall be proved, or letters of
administration granted, and his estate settled, in
the ,&! in the province in which he resides at the
time of his death, and if he is an inhabitant of a
foreign country, the ,&! of any province in which
he had his estate. &he court frst ta2ing
cogni6ance of the settlement of the estate of a
decedent, shall e'ercise +urisdiction to the
e'clusion of all other courts.
113
>nder ,A J8E%, the law e'panding the +urisdiction
of the inferior courts, ;&!, ;e&! and ;!&! shall
e'ercise e'clusive original +urisdiction over
probate proceedings, testate and intestate, where
the value of the estate does not e'ceed
P300/000 (outside ;etro ;anila) or where such
estate does not e'ceed P400/000 (in ;etro
;anila).
&he +urisdiction of the ,&! is limited to the
settlement and ad+udication of properties of the
deceased and cannot e'tend to collateral
matters.
VENUE IN ,UDICIAL SETTLEMENT OF
ESTATE
&he residence of the decedent at the time of his
death is determinative of the venue of the
proceeding.
f he was a resident (inh"%it"nt, )hether citiKen
or "ien) of the 3hilippines, venue is laid
e'clusively in the province of his residence at the
time of his death. ,esidence means his personal,
actual, or physical habitation, his actual residence
or place of abode.
t is only where the decedent was a nonresident
of the 3hilippines at the time of his death that
venue lies in any province in which he had an
estate, &he -uestion of residence is determinative
only of the venue and does not a/ect the
+urisdiction of the court.
Venue is waivable. f instituted in two courts, the
court in which the proceeding was frst fled has
e'clusive +urisdiction to resolve the issue.
EXTENT OF ,URISDICTION OF PROBATE
COURT
&he main function of a probate court is to settle
and li-uidate the estates of deceased person
either summarily or through the process of
administration.
&he probate court e'ercises limited +urisdiction,
thus it has no power to ta2e cogni6ance of and
determine the issue of title to property claimed
by a third person adversely to the decedent
unless the claimant and all other parties have
legal interest in the property consent, e'pressly
or impliedly, to the submission of the -uestion to
the probate court. n that case, if the probate
court allows the introduction of evidence on
ownership it is for the sole purpose of
determining whether the sub+ect properties
should be included in the inventory, which is
within the probate court@s competence.
&he determination is only provisional sub+ect to a
proper action in a separate action to resolve the
title.
&he +urisdiction of the probate court merely
relates to matters having to do with the
settlement of the estate and the probate of wills,
the appointment and removal of administrators,
e'ecutors, guardians and trustees. &he -uestion
of ownership is, as a rule, an e'traneous matter
which the probate court cannot resolve with
fnality.
POWERS AND DUTIES OF PROBATE COURT
&he powers and duties of a probate court"
%) ?istribute shares#
() ?etermine the legal heirs#
)) ssue warrants and processes to secure
attendance of witnesses#
*) ?etermine and rile upon issues relating to
the settlement of the estate, such as
administration, li-uidation, and
distribution of the estate# and
5) ?etermine the following"
a) 4eirs of the decedent#
b) ,ecognition of natural child#
c) Validity of the disinheritance
e/ected by testator#
d) Status of a woman who claims
to be the lawful wife of the
decedent#
e) Validity of waiver of hereditary
heirs#
f) Status of each heir#
g) 0hatever property in inventory
is con+ugal or e'clusive
property of deceased spouse#
and
h) ;atters incidental or collateral
to the settlement and
distribution of the estate.
SUMMARY SETTLEMENT OF ESTATES .RULE
740
Summary settlement of estate is a +udicial
proceeding wherein, without the appointment of
e'ecutor or administrator, and without delay, the
competent court summarily proceeds to value the
estate of the decedent# ascertain his debts and
order payment thereof# allow his will if any#
declare his heirs, devisee and legatees# and
distribute his net estate among his 2nown heirs,
devisees, and legatees, who shall thereupon be
114
entitled to receive and enter into the possession
of the parts of the estate so awarded to them,
respectively.
EXTRA,UDICIAL SETTLEMENT BY
AGREEMENT BETWEEN %EIRS
W%EN ALLOWED
f the decedent left no will and no debts and the
heirs are all of age, or the minors are represented
by their +udicial or legal representatives duly
authori6ed for the purpose, the parties may,
without securing letters of administration, divide
the estate among themselves as they see ft by
means of a public instrument fled in the o5ce of
the register of deeds, and should they disagree,
they may do so in an ordinary action of partition.
f there is only one heir, he may ad+udicate to
himself the entire estate by means of an a5davit
fled in the o5ce of the register of deeds.
&he parties to an e'tra+udicial settlement,
whether by public instrument or by stipulation in
a pending action for partition, or the sole heir
who ad+udicates the entire estate to himself by
means of an a5davit shall fle, simultaneously
with and as a condition precedent to the fling of
the public instrument, or stipulation in the action
for partition, or of the a5davit in the o5ce of the
register of deeds, a bond with the said register of
deeds, in an amount e-uivalent to the value of
the personal property involved as certifed to
under oath by the parties concerned and
conditioned upon the payment of any +ust claim
that may be fled under section * of this rule.
&he fact of the e'tra+udicial settlement or
administration shall be published in a newspaper
of general circulation in the manner provided in
the ne't succeeding section# but no e'tra+udicial
settlement shall be binding upon any person who
has not participated therein or had no notice
thereof.
9'tra+udicial partition of the estate shall be valid
when the following conditions concur"
%) &he decedent left no will#
() &he decedent left no debts, or if there
were debts left, all had been paid#
)) &he heirs are all of age or if they are
minors, the latter are represented by their
+udicial guardian or legal representative#
*) &he partition was made by means of a
public instrument or a5davit duly fled
with the ,egister of ?eeds# and
5) &he fact of the e'tra+udicial settlement or
administration shall be published in a
newspaper of general circulation.
TWO*YEAR PRESCRIPTIVE PERIOD
t shall be presumed that the decedent left no
debts if no creditor fles a petition for letters of
administration within two (() years after the
death of the decedent.
f it shall appear at any time within two (() years
after the settlement and distribution of an estate
in accordance with the provisions of either of the
frst two sections of this rule, that an heir or other
person has been unduly deprived of his lawful
participation in the estate, such heir or such other
person may compel the settlement of the estate
in the courts in the manner hereinafter provided
for the purpose of satisfying such lawful
participation.
And if within the same time of two (() years, it
shall appear that there are debts outstanding
against the estate which have not been paid, or
that an heir or other person has been unduly
deprived of his lawful participation payable in
money, the court having +urisdiction of the estate
may, by order for that purpose, after hearing,
settle the amount of such debts or lawful
participation and order how much and in what
manner each distributee shall contribute in the
payment thereof, and may issue e'ecution, if
circumstances re-uire, against the bond provided
in the preceding section or against the real estate
belonging to the deceased, or both. Such bond
and such real estate shall remain charged with a
liability to creditors, heirs, or other persons for
the full period of two (() years after such
distribution, notwithstanding any transfers of real
estate that may have been made.
AFFIDAVIT OF SELF*AD,UDICATION
BY SOLE %EIR
f there is only one heir, he may ad+udicate to
himself the entire estate by means of an a5davit
fled in the o5ce of the register of deeds.
SUMMARY SETTLEMENT OF ESTATES OF
SMALL VALUEJ W%EN ALLOWED
0henever the gross value of the estate of a
deceased person, whether he died testate or
intestate, does not e'ceed ten thousand pesos,
and that fact is made to appear to the ,&! having
+urisdiction of the estate by the petition of an
interested person and upon hearing, which shall
be held not less than (%) month nor more than
three ()) months from the date of the last
publication of a notice which shall be published
once a wee2 for three ()) consecutive wee2s in a
115
newspaper of general circulation in the province,
and after such other notice to interested persons
as the court may direct, the court may proceed
summarily, without the appointment of an
e'ecutor or administrator, and without delay, to
grant, if proper, allowance of the will, if any there
be, to determine who are the persons legally
entitled to participate in the estate, and to
apportion and divide it among them after the
payment of such debts of the estate as the court
shall then fnd to be due# and such persons, in
their own right, if they are of lawful age and legal
capacity, or by their guardians or trustees legally
appointed and -ualifed, if otherwise, shall
thereupon be entitled to receive and enter into
the possession of the portions of the estate so
awarded to them respectively. &he court shall
ma2e such order as may be +ust respecting the
costs of the proceedings, and all orders and
+udgments made or rendered in the course
thereof shall be recorded in the o5ce of the cler2,
and the order of partition or award, if it involves
real estate, shall be recorded in the proper
registerVs o5ce.
&he court, before allowing a partition, may
re-uire the distributees, if property other than
real is to be distributed, to fle a bond in an
amount to be f'ed by court, conditioned for the
payment of any +ust claim.
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRA*,UDICIAL SETTLEMENT OF ESTATE
%) &he creditor may as2 for administration of
enough property of the estate su5cient to
pay the debt, but the heirs cannot prevent
such administration by paying the obligation.
() 0here the estate has been summarily settled,
the unpaid creditor may, within the two.year
period, fle a motion in the court wherein such
summary settlement was for the payment of
his credit. After the lapse of the two.year
period, an ordinary action may be instituted
against the distributees within the statute of
limitations, but not against the bond.
)) &he action to annul a deed of e'tra+udicial
settlement on the ground of fraud should be
fled within four years from the discovery of
the fraud.
PRODUCTION AND PROBATE OF WILL
.RULE 760
NATURE OF PROBATE PROCEEDING
3robate of a will is a proceeding in re$. t
cannot be dispensed with and substituted by
another proceeding, +udicial or e'tra+udicial,
without o/ending public policy.
t is mandatory as no will shall pass either real
or personal property unless proved and
allowed in accordance with the ,ules.
t is imprescriptible, because it is re-uired by
public policy and the state could not have
intended to defeat the same by applying
thereto the statute of limitation of actions.
W%O MAY PETITION FOR PROBATEJ
PERSONS ENTITLED TO NOTICE
Any e'ecutor, devisee, or legatee named in a will,
or any other person interested in the estate, may,
at any time after the death of the testator,
petition the court having +urisdiction to have the
will allowed, whether the same be in his
possession or not, or is lost or destroyed.
&he testator himself may, during his
lifetime, petition the court for the
allowance of his will.
&he court shall also cause copies of the notice of
the time and place f'ed for proving the will to be
addressed to the designated or other 2nown
heirs, legatees, and devisees of the testator
resident in the 3hilippines at their places of
residence, and deposited in the post o5ce with
the postage thereon prepaid at least twenty ((F)
days before the hearing, if such places of
residence be 2nown.
A copy of the notice must in li2e manner be
mailed to the person named as e'ecutor, if he be
not be petitioner# also, to any person named as
co.e'ecutor not petitioning, if their places of
residence be 2nown. 3ersonal service of copies of
the notice at least ten (%F) days before the day of
hearing shall be e-uivalent to mailing. f the
testator as2s for the allowance of his own will,
notice shall be sent only to his compulsory heirs.
ALLOWANCE OR DISALLOWANCE OF WILL
.RULE 7@0
CONTENTS OF PETITION FOR ALLOWANCE
OF WILL
A petition for the allowance of a will must show,
so far as 2nown to the petitioner"
%) &he +urisdictional facts#
() &he names, ages, and residences of the
heirs, legatees, and devisees of the
testator or decedent#
)) &he probable value and character of the
property of the estate#
116
*) &he name of the person for whom letters
are prayed#
5) f the will has not been delivered to the
court, the name of the person having
custody of it.
$ut no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
anne'ed.
GROUNDS FOR DISALLOWING A WILL
&he will shall be disallowed in any of the following
cases#
%) f not e'ecuted and attested as re-uired
by law#
() f the testator was insane, or otherwise
mentally incapable to ma2e a will, at the
time of its e'ecution#
)) f it was e'ecuted under duress, or the
inIuence of fear, or threats#
*) f it was procured by undue and improper
pressure and inIuence, on the part of the
benefciary, or of some other person for
his beneft#
5) f the signature of the testator was
procured by fraud or tric2
8) f the testator acted by mista2e or did not
intend that the instrument he signed
should be his will at the time of a5'ing his
signature thereto.
REPROBATEJ RE<UISITES BEFORE WILL
PROVED OUTSIDE ALLOWED IN T%E
P%ILIPPINESJ EFFECTS OF PROBATE
0ill proved outside 3hilippines may be allowed
here. 0ills proved and allowed in a foreign
country, according to the laws of such country,
may be allowed, fled, and recorded by the proper
!ourt of =irst nstance in the 3hilippines.
f it appears at the hearing that the will should be
allowed in the 3hilippines, the court shall so allow
it, and a certifcate of its allowance, signed by the
+udge, and attested by the seal of the court, to
which shall be attached a copy of the will, shall
be fled and recorded by the cler2, and the will
shall have the same e/ect as if originally proved
and allowed in such court.
0hen a will is thus allowed, the court shall grant
letters testamentary or letters of administration
with the will anne'ed, and such letters
testamentary or of administration, shall e'tend to
all the estate of the testator in the 3hilippines.
Such estate, after the payment of +ust debts and
e'penses of administration, shall be disposed of
according to such will, so far as such will may
operate upon it# and the residue, if any, shall be
disposed of as is provided by law in cases of
estates in the 3hilippines belonging to persons
who are inhabitants of another state or country.
f the court is satisfed, upon proof ta2en and
fled, that the will was duly e'ecuted, and that
the testator at the time of its e'ecution was of
sound and disposing mind, and not acting under
duress, menace, and undue inIuence, or fraud, a
certifcate of its allowance, signed by the +udge,
and attested by the seal of the court shall be
attached to the will and the will and certifcate
fled and recorded by the cler2. Attested copies of
the will devising real estate and of certifcate of
allowance thereof, shall be recorded in the
register of deeds of the province in which the
lands lie.
&he general rule universally recogni6ed is that
administration e'tends only to the assets of the
decedent found within the state or country where
it was granted, so that an administrator
appointed in one state or country has no power
over the property in another state or country.
0hen a person dies intestate owning property in
the country of his domicile as well as in foreign
country, administration shall be had in both
countries. &hat which is granted in the +urisdiction
of the decedent@s domicile is termed the principal
administration, while any other administration is
termed ancillary administration. &he ancillary
administration is proper whenever a person dies
leaving in a country other than that of his
domicile, property to be administered in the
nature of assets of the decedent, liable for his
individual debts or to be distributed among his
heirs.
LETTERS TESTAMENTARY AND OF
ADMINISTRATION .RULE 7C0
Getters testamentary is the appointment issued
by a probate court, after the will has been
admitted to probate, to the e'ecutor named in
the will to administer the estate of the deceased
testator, provided the e'ecutor named in the will
is competent, accepts the trust and gives a bond.
W%EN AND TO W%OM LETTERS OF
ADMINISTRATION GRANTED
<o person is competent to serve as e'ecutor or
administrator who"
a) s a minor#
b) s not a resident of the 3hilippines# and
117
c) s in the opinion of the court unft to
e'ecute the duties of the trust by reason
of drun2enness, improvidence, or want of
understanding or integrity, or by reason of
conviction of an o/ense involving moral
turpitude.
&he e'ecutor of an e'ecutor shall not, as such,
administer the estate of the frst testator.
A married woman may serve as e'ecutri' or
administratri', and the marriage of a single
woman shall not a/ect her authority so to serve
under a previous appointment.
0hen a will has been proved and allowed, the
court shall issue letters testamentary thereon to
the person named as e'ecutor therein, if he is
competent, accepts the trust, and gives bond as
re-uired by these rules.
0hen all of the e'ecutors named in a will cannot
act because of incompetency, refusal to accept
the trust, or failure to give bond, on the part of
one or more of them, letters testamentary may
issue to such of them as are competent, accept
and give bond, and they may perform the duties
and discharge the trust re-uired by the will.
f no e'ecutor is named in the will, or the
e'ecutor or e'ecutors are incompetent, refuse
the trust, or fail to give bond, or a person dies
intestate, administration shall be granted"
a) &o the surviving husband or wife, as the
case may be, or ne't of 2in, or both, in the
discretion of the court, or to such person
as such surviving husband or wife, or ne't
of 2in, re-uests to have appointed, if
competent and willing to serve#
b) f such surviving husband or wife, as the
case may be, or ne't of 2in, or the person
selected by them, be incompetent or
unwilling, or if the husband or widow, or
ne't of 2in, neglects for thirty ()F) days
after the death of the person to apply for
administration or to re-uest that
administration be granted to some other
person, it may be granted to one or more
of the principal creditors, if competent and
willing to serve#
c) f there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select.
ORDER OF PREFERENCEJ PRIORITY IN
SELECTING AN ADMINISTRATOR
%) Surviving spouse, or ne't of 2in, or both, or
person as such surviving spouse, or ne't of
2in, re-uests#
() Ane or more of the principal creditors 7 if such
surviving spouse, or ne't of 2in, or the person
selected, be incompetent or unwilling, or if
they neglect for )F days after the death of the
decedent to apply for administration or to
re-uest that administration be granted to
some other person, it may be granted to, if
competent and willing to serve#
)) Such other person as the court may select.
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARYJ SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION
Any person interested in a will may state in
writing the grounds why letters testamentary
should not issue to the persons named therein
e'ecutors, or any of them, and the court, after
hearing upon notice, shall pass upon the
su5ciency of such grounds. A petition may, at
the same time, be fled for letters of
administration with the will anne'ed.
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORSJ RESTRICTIONS ON T%E
POWERS .RULE C40
An 9S9!>&A, is the person nominated by a
testator to carry out the directions and re-uests
in his will and to dispose of his property according
to his testamentary provisions after his death.
An A?;<S&,A&A, is person appointed by the
court, in accordance with the governing statute,
to administer and settle intestate estate and such
testate estate as no competent e'ecutor was
designated by the testator.
&he e'ecutor or administrator of the estate of a
deceased partner shall at all times have access
to, and may e'amine and ta2e copies of, boo2s
and papers relating to the partnership business,
and may e'amine and ma2e invoices of the
property belonging to such partnership# and the
surviving partner or partners, on re-uest, shall
e'hibit to him all such boo2s, papers, and
property in their hands or control. An the written
application of such e'ecutor or administrator, the
court having +urisdiction of the estate may order
any such surviving partner or partners to freely
permit the e'ercise of the rights, and to e'hibit
the boo2s, papers, and property, as in this section
provided, and may punish any partner failing to
do so for contempt.
118
An e'ecutor or administrator shall maintain in
tenantable repair the houses and other structures
and fences belonging to the estate, and deliver
the same in such repair to the heirs or devisees
when directed so to do by the court.
An e'ecutor or administrator shall have the right
to the possession and management of the real as
well as the personal estate of the deceased so
long as it is necessary for the payment of the
debts and the e'penses of administration.
An administrator of an intestate cannot e'ercise
the right of legal redemption over a portion of the
property owned in common sold by one of the
other co.owners since this is not within the
powers of administration.
0here the estate of a deceased person is already
the sub+ect of a testate or intestate proceeding,
the administrator cannot enter into any
transaction involving it without any prior approval
of the !ourt.
&he right of an e'ecutor or administrator to the
possession and management of the real and
personal properties of the deceased is not
absolute and can only be e'ercised so long as it is
necessary for the payment of the debts and
e'penses of administration.
APPOINTMENT OF SPECIAL
ADMINISTRATOR
0hen there is delay in granting letters
testamentary or of administration by any cause
including an appeal from the allowance or
disallowance of a will, the court may appoint a
special administrator to ta2e possession and
charge of the estate of the deceased until the
-uestions causing the delay are decided and
e'ecutors or administrators appointed.
GROUNDS FOR REMOVAL OF
ADMINISTRATOR
Administration revo2ed if will discovered . f after
letters of administration have been granted on
the estate of a decedent as if he had died
intestate, his will is proved and allowed by the
court, the letters of administration shall be
revo2ed and all powers thereunder cease, and
the administrator shall forthwith surrender the
letters to the court, and render his account within
such time as the court directs. 3roceedings for
the issuance of letters testamentary or of
administration under the will shall be as
hereinbefore provided.
f an e'ecutor or administrator neglects to render
his account and settle the estate according to
law, or to perform an order or +udgment of the
court, or a duty e'pressly provided by these
rules, or absconds, or becomes insane, or
otherwise incapable or unsuitable to discharge
the trust, the court may remove him, or, in its
discretion, may permit him to resign. 0hen an
e'ecutor or administrator dies, resigns, or is
removed the remaining e'ecutor or administrator
may administer the trust alone, unless the court
grants letters to someone to act with him. f there
is no remaining e'ecutor or administrator,
administration may be granted to any suitable
person (Sec. 2, *ue =2).
CLAIMS AGAINST T%E ESTATE .RULE C@0
Administration is for the purpose of li-uidation of
the estate and distribution of the residue among
the heirs and legatees. Gi-uidation means the
determination of all the assets of the estate and
payment of all debts and e'penses.
&he purpose of presentation of claims against
decedents of the estate in the probate court is to
protect the estate of deceased persons. &hat
way, the e'ecutor or administrator will be able to
e'amine each claim and determine whether it is a
proper one which should be allowed.
=urther, the primary ob+ect of the provisions
re-uiring presentation is to apprise the
administrator and the probate court of the
e'istence of the claim so that a proper and timely
arrangement may be made for its payment in full
or by pro rata portion in the due course of the
administration, inasmuch as upon the death of a
person, his entire estate is burdened with the
payment of all his debts and no creditor shall
en+oy any preference or priority# all of them shall
share pro rata in the li-uidation of the estate of
the deceased.
TIME WIT%IN W%IC% CLAIMS S%ALL BE
FILEDJ EXCEPTIONS
&he court shall state the time for the fling of
claims against the estate, which shall not be
more than twelve (%() nor less than si' (8)
months after the date of the frst publication of
the notice. 4owever, at any time before an order
of distribution is entered, on application of a
creditor who has failed to fle his claim within the
time previously limited, the court may, for cause
shown and on such terms as are e-uitable, allow
such claim to be fled within a time not e'ceeding
one (%) month.
119
STATUTE OF NON*CLAIMS
A claim by a person against the estate of
deceased should be made in not less than 8
months nor more than %( months since the frst
publication of allowance of the will. f the said
claims are not fled within the time limited in the
notice, they are forever be barred.
CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST T%E ESTATE
f the e'ecutor or administrator has a claim
against the estate he represents, he shall give
notice thereof, in writing, to the court, and the
court shall appoint a special administrator, who
shall, in the ad+ustment of such claim, have the
same power and be sub+ect to the same liability
as the general administrator or e'ecutor in the
settlement of other claims.
&he court may order the e'ecutor or
administrator to pay to the special administrator
necessary funds to defend such claim.
PAYMENT OF DEBTS .RULE CC0
f there are su5cient properties, the debts shall
be paid, thus"
%) All debts shall be paid in full within the
time limited for the purpose (Sec. %)#
() f the testator ma2es provision by his will,
or designates the estate to be
appropriated for the payment of debts
they shall be paid according to the
provisions of the will, which must be
respected (Sec. ()#
)) f the estate designated in the will is not
su5cient, such part of the estate as is not
disposed of by will shall be appropriated
for the purpose (Sec. ()#
*) &he personal estate not disposed of by will
shall be frst chargeable with payment of
debts and e'penses (Sec. ))#
5) f the personal estate is not su5cient, or
its sale would be detrimental to the
participants of the estate, the real estate
not disposed of by will shall be sold or
encumbered for that purpose (Sec. ))#
8) Any defciency shall be met by
contributions from devisees, legatees and
heirs who have entered into possession of
portions of the estate before debts and
e'penses have been paid (Sec. 8)#
J) &he e'ecutor or administrator shall retain
su5cient estate to pay contingent claims
when the same becomes absolute (Sec.
*).
f the estate is insolvent, the debts shall be paid
in the following manner"
%) &he e'ecutor or administrator shall pay
the debts in accordance with the
preference of credits established by the
!ivil !ode (Sec. J)#
() <o creditor of any one class shall receive
any payment until those of the preceding
class are paid (Sec. K)#
)) f there are no assets su5cient to pay the
credits of any one class of creditors, each
creditor within such class shall be paid a
dividend in proportion to his claim (Sec.
K)#
*) 0here the deceased was a nonresident,
his estate in the 3hilippines shall be
disposed of in such a way that creditors in
the 3hilippines and elsewhere may receive
an e-ual share in proportion to their
respective credits (Sec. E)#
5) !laims duly proved against the estate of
an insolvent resident of the 3hilippines,
the e'ecutor or administrator, having had
the opportunity to contest such claims,
shall e included in the certifed list of
claims proved against the deceased. &he
owner of such claims shall be entitled to a
+ust distribution of the estate in
accordance with the preceding rules if the
property of such deceased person in
another country is li2ewise e-ually
apportioned to the creditors residing in the
3hilippines and other creditors, according
to their respective claims (Sec. %F)#
8) t must be noted that the payments of
debts of the decedent shall be made
pursuant to the order of the probate court
(Sec. %%).
An granting letters testamentary or
administration the court shall allow to the
e'ecutor or administrator a time for disposing of
the estate and paying the debts and legacies of
the deceased, which shall not, in the frst
instance, e'ceed one (%) year# but the court may,
on application of the e'ecutor or administrator
and after hearing on such notice of the time and
place therefor given to all persons interested as it
shall direct, e'tend the time as the circumstances
of the estate re-uire not e'ceeding si' (8) months
for a single e'tension nor so that the whole
period allowed to the original e'ecutor or
administrator shall e'ceed two (() years (Sec.
15).
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS .RULE C70
120
<o action upon a claim for the recovery of money
or debts or interest thereon shall be commenced
against the e'ecutor or administrator.
ACTIONS T%AT MAY BE BROUG%T AGAINST
EXECUTORS AND ADMINISTRATORS
An action to recover real or personal property, or
an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages
for an in+ury to person or property, real or
personal, may be commenced against the
e'ecutor or administrator.
0henever a party to a pending action dies, and
the claim is not thereby e'tinguished, it shall be
the duty of his counsel to inform the court within
thirty ()F) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives. =ailure of
counsel to comply with this duty shall be a
ground for disciplinary action. &he heirs of the
deceased may be allowed to be substituted for
the deceased, without re-uiring the appointment
of an e'ecutor or administrator and the court
may appoint a guardian ad litem for the minor
heirs.
&he court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty ()F) days
from notice. f no legal representative is named
by the counsel for the deceased party, or if the
one so named shall fail to appear within the
specifed period, the court may order the
opposing party, within a specifed time, to
procure the appointment of an e'ecutor or
administrator for the estate of the deceased and
the latter shall immediately appear for and on
behalf of the deceased. &he court charges in
procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.
0hen the action is for recovery of money arising
from contract, e'press or implied, and the
defendant dies before entry of fnal +udgment in
the court in which the action was pending at the
time of such death, it shall not be dismissed but
shall instead be allowed to continue until entry of
fnal +udgment. A favorable +udgment obtained by
the plainti/ therein shall be enforced in the
manner especially provided in these ,ules for
prosecuting claims against the estate of a
deceased person.
RE<UISITES BEFORE CREDITOR MAY BRING
AN ACTION FOR RECOVERY OF PROPERTY
FRAUDULENTLY CONVEYED BY T%E
DECEASED
%) &here is a defciency of assets in the hands of
an e'ecutor or administrator for the payment
of debts and e'penses of administration#
() &he deceased in his lifetime had made or
attempted to ma2e a fraudulent conveyance
of his real or personal property, or a right or
interest therein, or a debt or credit, with
intent to defraud his creditors or to avoid any
right, debt or duty# or had so conveyed such
property, right, debt, or credit that by law the
conveyance would be void as against his
creditors#
)) &he sub+ect of the attempted conveyance
would be liable to attachment by any of them
in his lifetime#
*) &he e'ecutor or administrator has shown to
have no desire to fle the action or failed to
institute the same within a reasonable time#
5) Geave is granted by the court to the creditor
to fle the action#
8) A bond is fled by the creditor as prescribed in
the ,ules#
J) &he action by the creditor is in the name of
the e'ecutor or administrator.
DISTRIBUTION AND PARTITION .RULE A00
$efore there could be a distribution of the estate,
the following two stages must be followed"
%) 3ayment of obligations (li-uidation of
estate) 7 under the ,ules, the
distribution of a decedentDs assets may
only be ordered under any of the
following three circumstances"
a. when the inheritance ta',
among other is paid#
b. when a su5cient bond is given
to meet the payment of the
inheritance ta' and all other
obligations# and
c. when the payment of the said
ta' and all other obligations has
been provided for# and
() ?eclaration of heirs 7 there must frst
be declaration of heirs to determine to
whom the residue of the estate should
e distributed. A separate action for the
declaration of heirs is not proper.
And li2ewise after, not before the declaration of
heirs is made may the residue be distributed and
delivered to the heirs. &he settlement of a
decedentDs estate is a proceeding in rem which is
binding against the whole world. All persons
having interest in the sub+ect matter involved,
121
whether they were notifed or not, are e-ually
bound.
LI<UIDATION
W7e( 2-!e- 82- !"s'-"&u'"2( 28 -es"!ue
#!e= 0hen the debts, funeral charges, and
e'penses of administration, the allowance to the
widow, and inheritance ta', if any, chargeable to
the estate in accordance with law, have been
paid, the court, on the application of the e'ecutor
or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled
to the same, naming them and the proportions,
or parts, to which each is entitled, and such
person may demand and recover their respective
shares from the e'ecutor or administrator, or any
other person having the same in his possession. f
there is a controversy before the court as to who
are the lawful heirs of the deceased person or as
to the distributive shares to which each person is
entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
<o distribution shall be allowed until the payment
of the obligations above mentioned has been
made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be f'ed by
the court, conditioned for the payment of said
obligations within such time as the court directs.
<ues'"2(s #s '2 #!)#(1ee(' '2 &e
!e'e-"(e!= Huestions as to advancement
made, or alleged to have been made, by the
deceased to any heir may be heard and
determined by the court having +urisdiction of the
estate proceedings# and the fnal order of the
court thereon shall be binding on the person
raising the -uestions and on the heir.
B5 $72 e?9e(ses 28 9#-'"'"2( 9#"!= f at the
time of the distribution the e'ecutor or
administrator has retained su5cient e/ects in his
hands which may lawfully be applied for the
e'penses of partition of the properties
distributed, such e'penses of partition may be
paid by such e'ecutor or administrator when it
appears e-uitable to the court and not
inconsistent with the intention of the testator#
otherwise, they shall be paid by the parties in
proportion to their respective shares or interest in
the premises, and the apportionment shall be
settled and allowed by the court, and, if any
person interested in the partition does not pay his
proportion or share, the court may issue an
e'ecution in the name of the e'ecutor or
administrator against the party not paying for the
sum assessed.
PRO,ECT OF PARTITION
3ro+ect of partition is a document prepared by
the e'ecutor or administrator setting forth the
manner in which the estate of the deceased is
to be distributed among the heirs.
f the estate is a testate estate, the pro+ect of
partition must conform to the terms of the
will# if intestate, the pro+ect of partition must
be in accordance with the provisions of the
!ivil !ode.
REMEDY OF AN %EIR ENTITLED TO RESIDUE
BUT NOT GIVEN %IS S%ARE
%) f there is a controversy before the court as to
who are the lawful heirs of the deceased
person or as to the distributive shares to
which each person is entitled under the law,
the controversy shall be heard and decided as
in ordinary cases.
() &he better practice for the heir who has not
received his share is to demand his share
through a proper motion in the same probate
or administration proceedings, or for
reopening of the probate or administrative
proceedings if it had already been closed, and
not through an independent action, which
would be tried by another court or +udge.
)) t has been held that an order which
determines the distributive share of the heirs
of a deceased person is appealable. f not
appealed within the reglementary period, it
becomes fnal.
*) &he !ourt allowed the continuation of a
separate action to annul the pro+ect of
partition by a preterited heir, since the estate
proceedings have been closed and terminated
for over three years, and on the ground of
lesion, preterition and fraud.
INSTANCES W%EN PROBATE COURT MAY
ISSUE WRIT OF EXECUTION
a) &o satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedentDs assets#
b) &o enforce payment of e'penses of partition#
and
c) &o satisfy the costs when a person is cited for
e'amination in probate proceedings.
GENERAL GUARDIANS AND GUARDIANS%IP
TRUSTEES .RULE AC0
122
,e-uisites for e'istence of a valid trust"
%) 9'istence of a person competent to
create#
() Su5cient words to create it#
)) A person capable of holding as trustee a
specifed or ascertainable ob+ect#
*) A defnite trust res# and
5) A declaration of the terms of the trust
TRUSTEE EXECUTOR >
ADMINISTRATOR
An instrument or agent
of the cestui (ue trust,
who ac-uires no
benefcial interest in the
estate# he merely too2
the legal estate only as
the proper e'ecution of
the trust re-uired# and,
his estate ceases upon
the fulflment of the
testatorDs wishes, in
which case, the same
vest absolutely in the
benefciary.
An e'ecutor is the
person named in
the will to
administer the
decedentDs estate
and carry out the
provisions thereof.
An administrator is
the person
appointed by the
court to administer
the estate where
the decedent died
intestate, or where
the will was void
and not allowed to
probate, or where
no e'ecutor was
named in the will,
or the e'ecutor
named therein in
incompetent or
refuses to serve as
such.
An association or
corporation authori6ed
to conduct the business
of a trust company in
the 3hilippines may
appointed as trustee of
an estate in the same
manner as an individual
(Art. %F8F, !!).
An association or
corporation
authori6ed to
conduct the
business of a trust
company in the
3hilippines may
appointed as
e'ecutor or
administrator of an
estate in the same
manner as an
individual (Art.
%F8F, !!).
?uties are usually
governed by the
intention of the trustor
or the parties if
established by a
contract.
?uties may cover a
wider range.
?uties are f'ed
andLor limited by
law (,ule K*).
Jroun's for re$o6" of
trustee0
Jroun's for
re$o6"0
a) nsanity#
b) ncapability of
discharging trust or
evidently unsuitable
therefor (Sec. K, ,ule
EK)#
c) <eglect in the
performance of his
duties#
d) $reach of trust
displaying a want of
fdelity, not mere
error in the
administration of the
trust#
e) Abuse and
abandonment of the
trust#
f) ,efusal to recogni6e
or administer the
trust#
g) =ailure or neglect or
impropriety in
investment of the
trust estate as to
give rise to waste of
trust property#
h) =ailure to fle
accounts, and failure
of one co.trustee to
2eep himself
informed of the
conduct of the other
in the administration
of the trust.
a) <eglect to
render an
account and
settle the estate
according to
law#
b) <eglect to
perform an
order or
+udgment of the
court#
c) <eglect to
perform a duty
e'pressly
provided by
these rules#
d) Absconds, or
becomes
insane, or
e) otherwise
incapable or
unsuitable to
discharge trust#
f) (e) =raud or
misrepresentati
on
CONDITIONS OF T%E BOND
A trustee appointed by the court is re-uired to
furnish a bond and the terms of the trust or a
statute may provide that a trustee appointed by a
court shall be re-uired to furnish a bond in order
to -ualify him to administer the trust.
4owever, the court may until further order
e'empt a trustee under a will from giving a bond
when the testator has directed or re-uested such
e'emption or when all persons benefcially
interested in the trust, being of full age, re-uest
the e'emption. Such e'emption may be cancelled
by the court at any time, and the trustee re-uired
to forthwith fle a bond. f the trustee fails to
furnish a bond as re-uired by the court, he fails to
-ualify as such. <onetheless the trust is not
defeated by such a failure to give bond.
&he following conditions shall be deemed to be a
part of the bond whether written therein or not"
123
a) &hat the trustee will ma2e and return to
the court, at such time as it may order, a
true inventory of all the real and personal
estate belonging to him as trustee, which
at the time of the ma2ing of such
inventory shall have come to his
possession or 2nowledge#
b) &hat he will manage and dispose of all
such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the
provisions of the instrument or order
under which he is appointed#
c) &hat he will render upon oath at least once
a year until his trust is fulflled, unless he
is e'cused therefrom in any year by the
court, a true account of the property in his
hands and of the management and
disposition thereof, and will render such
other accounts as the court may order.
&hat at the e'piration of his trust he will settle his
accounts in court and pay over and deliver all the
estate remaining in his hands, or due from him on
such settlement, to the person or persons entitled
thereto. $ut when the trustee is appointed as a
successor to a prior trustee, the court may
dispense with the ma2ing and return of an
inventory, if one has already been fled, and in
such case the condition of the bond shall be
deemed to be altered accordingly.
RE<UISITES FOR T%E REMOVAL AND
RESIGNATION OF A TRUSTEE
A trustee may be removed upon petition to the
proper ,&! of the parties benefcially interested,
after due notice to the trustee and hearing, if it
appears essential in the interests of the
petitioners. &he court may also, after due notice
to all persons interested, remove a trustee who is
insane or otherwise incapable of discharging his
trust or evidently unsuitable therefor. A trustee,
whether appointed by the court or under a
written instrument, may resign his trust if it
appears to the court proper to allow such
resignation.
A trustee whose acts or omissions are such as to
show a want of reasonable fdelity will be
removed by the court and where trust funds are
to be invested by the trustee, neglect to invest
constitutes of itself a breach of trust, and is a
ground for removal.
GROUNDS FOR REMOVAL AND
RESIGNATION OF A TRUSTEE
&he proper ,egional &rial !ourt may, upon
petition of the parties benefcially interested and
after due notice to the trustee and hearing#
remove a trustee if such removal appears
essential in the interests of the petitioners. &he
court may also, after due notice to all persons
interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or
evidently unsuitable therefor. A trustee, whether
appointed by the court or under a written
instrument, may resign his trust if it appears to
the court proper to allow such resignation.
A trustee whose acts or omissions are such as to
show a want of reasonable fdelity will be
removed by the court and where trust funds are
to be invested by the trustee, neglect to invest
constitutes of itself a breach of trust, and is a
ground for removal.
EXTENT OF AUT%ORITY OF TRUSTEE
A trustee appointed by the ,&! shall have the
same rights, powers, and duties as if he had been
appointed by the testator. <o person succeeding
to a trust as e'ecutor or administrator of a former
trustee shall be re-uired to accept such trust.
Such new trustee shall have and e'ercise the
same powers, rights, and duties as if he had been
originally appointed, and the trust estate shall
vest in him in li2e manner as it had vested or
would have vested, in the trustee in whose place
he is substituted# and the court may order such
conveyance to be made by the former trustee or
his representatives, or by the other remaining
trustees, as may be necessary or proper to vest
the trust estate in the new trustee, either alone
or +ointly with the others.
ESC%EAT .RULE A10
9scheat is a proceeding whereby the real and
personal property of a deceased person in the
3hilippines, become the property of the state
upon his death, without leaving any will or legal
heirs.
W%EN TO FILE
0hen a person dies intestate, sei6ed of real or
personal property in the 3hilippines, leaving no
heir or person by law entitled to the same, the
Solicitor Beneral or his representative in behalf of
the ,epublic of the 3hilippines, may fle a petition
in the !ourt of =irst nstance of the province
where the deceased last resided or in which he
had estate, if he resided out of the 3hilippines,
124
setting forth the facts, and praying that the
estate of the deceased be declared escheated.
RE<UISITES FOR FILING OF PETITION
a) &hat a person died intestate#
b) &hat he left no heirs or person by law entitled
to the same# and
c) &hat the deceased left properties.
REMEDY OF RESPONDENT AGAINST
PETITIONJ PERIOD FOR FILING A CLAIM
f a devisee, legatee, heir, widow, widower or
other person entitled to such estate appears and
fles a claim thereto with the court within 5 years
from the date of such +udgment, such person
shall have possession of and title to the same, or
if sold, the municipality or city shall be
accountable to him for the proceeds, after
deducting reasonable charges for the care of the
estate# hence, claim not made within such time
limit shall forever be barred.
GUARDIANS%IP .RULES A2 A70
Buardianship is the power of protective authority
given by law and imposed on an individual who is
free and in the en+oyment of his rights, over one
whose wea2ness on account of his age or other
infrmity renders him unable to protect himself.
Buardianship may also describe the relation
subsisting between the guardian and the ward. t
involves the ta2ing of possession of an
management of, the estate of another unable to
act for himself.
A guardian is a person lawfully invested with
power and charged with the duty of ta2ing care of
a person who for some peculiarity or status or
defect of age, understanding or self.control is
considered incapable of administering his own
a/airs.
+"(!s 28 :u#-!"#(sB
%) According to scope or e'tent
a) Buardian of the person 7 one who has
been lawfully invested with the care of the
person of minor whose father is dead. 4is
authority is derived out of that of the
parent#
b) Buardian of the property 7 that appointed
by the court to have the management of
the estate of a minor or incompetent
person#
c) Beneral guardians 7 those appointed by
the court to have the care and custody of
the person and of all the property of the
ward.
() According to constitution
a) Gegal 7 those deemed as guardians
without need of a court appointment (Art.
((5, =amily !ourt)#
b) Buardian ad litem 7 those appointed by
courts of +ustice to prosecute or defend a
minor, insane or person declared to be
incompetent, in an action in court# and
c) :udicial 7 those who are appointed by the
court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or
deceased was veterans and other
incompetent persons.
GENERAL POWERS AND DUTIES OF
GUARDIANS .RULE A@0
a) &o have care and custody over the person of
his ward, andLor the management of his
estate (Sec. %)#
b) &o pay the +ust debts of his ward out of the
latterDs estate (Sec. ()#
c) &o bring or defend suits in behalf of the ward,
and, with the approval of the court, compound
for debts due the ward and give discharges to
the debtor (Sec. ))#
d) &o manage the estate frugally and without
waste, and apply the income and profts to
the comfortable and suitable maintenance of
the ward and his family (Sec. *)#
e) &o sell or encumber the real estate of the
ward upon being authori6ed to do so (Sec. *)#
f) &o +oin in an assent to a partition of real or
personal estate held by the ward +ointly or in
common with others (Sec. 5).
CONDITIONS OF T%E BOND OF T%E
GUARDIAN
a) &o fle with the court complete inventory of
the estate of the ward within ) months#
b) &o faithfully e'ecute the duties of his trust to
manage and dispose of the estate according
to the ,ules for the best interests of the ward,
and to provide for the proper use, custody,
and education of the ward#
c) &o render a true account of all the estate, and
of the management and disposition of the
same#
d) &o settle his accounts with the court and
deliver over all the estate remaining in his
hands to the person entitled thereto#
e) &o perform all orders of the court by him to be
performed (Sec. 1; Sec. 19, A, .3/.2/.5/SC).
125
RULE ON GUARDIANS%IP OVER MINORS
.AM 03*02*06*SC0
&he father and mother shall +ointly e'ercise legal
guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment. &he ,ule shall
be suppletory to the provisions of the =amily
!ode on guardianship.
An grounds authori6ed by law, any relative or
other person on behalf of a minor, or the minor
himself if %* years of age or over, may petition
the =amily !ourt for the appointment of a general
guardian over the person or property, or both, of
such minor. &he petition may also be fled by the
Secretary of ?S0? and of the ?A4 in the case of
an insane minor who needs to be hospitali6ed.
G-2u(!s 28 9e'"'"2(B
a) ?eath, continued absence, or incapacity of
his parents#
b) Suspension, deprivation or termination of
parental authority#
c) ,emarriage of his surviving parent, if the
latter is found unsuitable to e'ercise
parental authority# or
d) 0hen the best interest of the minor so
re-uire.
<u#l"H1#'"2(s 28 :u#-!"#(sB
a) ;oral character#
b) 3hysical, mental and psychological
condition#
c) =inancial status#
d) ,elationship of trust with the minor#
e) Availability to e'ercise the powers and
duties of a guardian for the full period of
the guardianship#
f) Gac2 of conIict of interest with the minor#
and
g) Ability to manage the property of the
minor.
Arder of preference in the appointment of
guardian or the person andLor property of minor"
a) &he S>,VV<B B,A<?3A,9<& and in case
several grandparents survive, the court
shall select any of them ta2ing into
account all relevant considerations#
b) &he AG?9S& $,A&49, A, SS&9, of the
minor over (% years of age, unless unft or
dis-ualifed#
c) &he A!&>AG !>S&A?A< of the minor over
(% years of age, unless unft or
dis-ualifed# and
d) Any A&49, 39,SA<, who in the sound
discretion of the court, would serve the
best interests of the minor.
=actors to consider in determining custody"
a) Any e'tra+udicial agreement which the
parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
non.custodial parent on a regular basis,
e'cept when there is an e'isting threat or
danger of physical, mental, se'ual or
emotional violence which endangers the
safety and best interests of the minor#
b) &he desire and ability of one parent to
foster an open and loving relationship
between the minor and the other parent#
c) &he health, safety and welfare of the
minor#
d) Any history of child or spousal abuse by
the person see2ing custody or who has
had any flial relationship with the minor,
including anyone courting the parent#
e) &he nature and fre-uency of contact with
both parents#
f) 4abitual use of alcohol, dangerous drugs
or regulated substances#
g) ;arital misconduct#
h) &he most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor# and
i) &he preference of the minor over J years
of age and of su5cient discernment,
unless the parent chosen is unft (Sec. 19,
A, -o. .3/.9/.9/SC).
&he court shall order a social wor2er to
conduct a case study of the minor and all
the prospective guardians and submit his
report and recommendation to the court
for its guidance before the scheduled
hearing.
ADOPTION .RULES AA
100/ SUPERSEDED BY AM 02*@*02*SC0
Adoption is a +uridical act which creates
between two persons a relationship similar to
that which results from legitimate paternity.
Adoption is a +uridical act, a proceeding in
rem, which creates between the two persons
a relationship similar to that which results
from legitimate paternity and fliation.
Adoption is not an adversarial proceeding. An
adversarial proceeding is one having opposing
parties, contested, as distinguished from an
e' parte application, one of which the party
see2ing relief has given legal warning to the
126
other party and a/orded the latter an
opportunity to contest it e'cludes an adoption
proceeding. n adoption, there is no particular
defendant to spea2 of since the proceeding
involves the status of a person it being an
action in rem.
DOMESTIC ADOPTION INTER*COUNTRY ADOPTION
Boverned by ,A K55(, the ?omestic
Adoption Act of %EEK# procedure governed
by A, -o. .2/.</.2/SC, Au3. 22, 2..2.
Boverned by *A =.93, the nter.!ountry Adoption
Act of %EE5# procedure governed by the Amended
mplementing ,ules and ,egulations on !AA.
Applies to domestic adoption of =ilipino
children, where the entire adoption process
beginning from the fling of the petition up
to the issuance of the adoption decree
ta2es place in the 3hilippines.
Applies to adoption of a =ilipino child in a foreign
country, where the petition for adoption is fled, the
supervised trial custody is underta2en and the
decree of adoption is issued outside of the
3hilippines.
W72 #5 &e #!29'e! W72 #5 &e #!29'e!
A child legally available for adoption.
,e-uisites"
a) $elow %K years of age# and
b) :udicially declared available for
adoption.
c) 9'ceptions"
d) Gegitimate sonLdaughter of one
spouse by the other spouse#
e) llegitimate sonL'"u3hter %+ "
(u"i?e' "'o!ter;
f) 3erson of legal age if, prior to the
adoption said person has been
consistently considered and treated
by the adopterLs as hisLher own
child since minority.
Anly a legally free child may be adopted.
,e-uisites"
a) $elow %5 years of age# and
b) 4as been voluntarily or involuntarily
committed to the ?S0? in accordance with
P4 <.3.
W72 #5 #!29' W72 #5 #!29'
127
A= FILIPINO CITIIENS
%) Af legal age#
() n possession of full civil capacity
and legal rights#
)) Af good moral character#
*) 4as not been convicted of any
crime involving moral turpitude#
5) 9motionally and psychologically
capable of caring for children#
8) n a position to support and care for
hisLher children in 2eeping with the
means of the family#
J) At least %8 years older than the
adoptee but this latter re-uirement
may be waived if (a) the adopter is
the biological parent of the
adoptee# or (b) the adopter is the
spouse of the adopteeDs parent# and
K) 3ermanent resident of the
3hilippines.
B= ALIENS
%) Same -ualifcations as above, and
in addition"
() 4isLher country has diplomatic
relations with the ,epublic of the
3hilippines#
)) 4isLher government allows the
adoptee to enter hisLher country as
hisLher adopted sonLdaughter#
*) 4as been living in the 3hilippines
for at least ) continuous years prior
to the fling of the application for
adoption and maintains such
residence until the adoption decree
is entered# and
5) 4as been certifed by hisLher
diplomatic or consular o5ce or any
appropriate government agency
that heLshe has the legal capacity
to adopt in hisLher country. &his
re-uirement may be waived if (a) a
former =ilipino citi6ens see2s to
adopt a relative within the *th
degree of consanguinity or a5nity#
(b) one see2s to adopt the
legitimate sonLdaughter of hisLher
=ilipino spouse# (c) one who is
married to a =ilipino citi6en and
see2s to adopt a relative within the
*th degree of consanguinity or
a5nity of the =ilipino spouse.
A. FILIPINO CITIIENS
%) 3ermanent resident of a foreign country#
() 4as the capacity to act and assume all rights
and responsibilities of parental authority
under 3hilippine laws#
)) 4as undergone the appropriate counseling
from an accredited counselor in country of
domicile#
*) 4as not been convicted of a crime involving
moral turpitude#
5) 9ligible to adopt under 3hilippine laws#
8) n a position to provide the proper care and
support and to give the necessary moral
values and e'ample to all his children,
including the child to be adopted#
J) Agrees to uphold the basic rights of the child
as embodied under 3hilippine laws, the ><
!onvention on ,ights of the !hild, and to
abide by the rules and regulations issued to
implement the provisions of the !AA#
K) ,esiding in a country with whom the
3hilippines has diplomatic relations and
whose government maintains a similarly
authori6ed and accredited agency and that
adoption is allowed in that country#
E) 3ossesses all the -ualifcations and none of
the dis-ualifcations provided in the !AA and
in other applicable 3hilippine laws#
%F) At least (J years of age at the time of the
application# and
%%) At least %8 years older than the child to be
adopted at the time of application, unless (a)
adopted is the parent by nature of the child to
be adopted# or (b) adopter is the spouse of
the parent by nature of the child to be
adopted.
B= ALIENS
%) At least (J years of age at the time of the
application#
() At least %8 years older than the child to be
adopted at the time of application unless the
adopter is the parent by nature of the child to
be adopted or the spouse of such parent#
)) 4as the capacity to act and assume all rights
and responsibilities of parental authority
under his national laws#
*) 4as undergone the appropriate counseling
from an accredited counselor in hisLher
country#
5) 4as not been convicted of a crime involving
moral turpitude#
8) 9ligible to adopt under hisLher national law#
J) n a position to provide the proper care and
support and to give the necessary moral
values and e'ample to all his children,
including the child to be adopted#
128
K) Agrees to uphold the basic rights of the child
as embodied under 3hilippine laws, the ><
!onvention on the ,ights of the !hild, and to
abide by the rules and regulations issued to
implement the provisions of the !AA#
E) !omes from a country with whom the
3hilippines has diplomatic relations and
whose government maintains a similarly
authori6ed and accredited agency and that
adoption is allowed under hisLher national
laws# and
%F) 3ossesses all the -ualifcations and none of
the dis-ualifcations provided in the !AA and
in other applicable 3hilippine laws.
ReFu"-ee(' 28 ,2"(' A!29'"2( &5
S92uses
ReFu"-ee(' 28 ,2"(' A!29'"2( &5
S92uses
Beneral rule" husband and wife shall +ointly
adopt# otherwise, the adoption shall not be
allowed.
9'ceptions"
%) f one spouse see2s to adopt the
legitimate sonLdaughter of the
other#
() f one spouse see2s to adopt hisLher
own illegitimate sonLdaughter but
the other spouse must give hisLher
consent#
)) f the spouses are legally separated
from each other.
,ule" if the adopter is married, hisLher spouse must
+ointly fle for the adoption.
P-21e!u-e P-21e!u-e
0here to fle application" n the =amily
!ourt of the province or city where the
prospective parents reside.
After fling" &he petition shall not be set for
hearing without a case study report by a
licensed social wor2er.
Supervised &rial !ustody"
a) &emporary parental authority is
vested in prospective adopter#
b) 3eriod is at least 8 months, but may
be reduced by the court motu
propio or upon motion#
c) f adopter is alien, the law
mandatorily re-uires completion of
the 8.month trial custody and may
not be reduced, e'cept if"
%) a former =ilipino citi6en see2s to
adopt a relative within *th
degree of consanguinity or
a5nity#
() one see2s to adopt the
legitimate sonLdaughter of
hisLher =ilipino spouse#
)) one who is married to a =ilipino
citi6en and see2s to adopt
+ointly with hisLher spouse a
relative within the *th degree of
0here to fle application" 9ither in (a) =amily !ourt
having +urisdiction over the place where the child
resides or may be found, or (b) nter.!ountry
Adoption $oard (!A$) through an intermediate
agency, whether governmental or an authori6ed and
accredited agency, in the country of the prospective
adoptive parents.
After fling"
a) if fled in the =!, court determines su5ciency
of petition in respect to form and substance,
after which, petition is transmitted to !A$#
b) if petition is already with !A$, it conducts
matching of the applicant with an adoptive
child#
c) after matchma2ing, the child is personally
fetched by the applicant for the trial custody
which ta2es place outside of the 3hilippines.
Supervised &rial !ustody"
a) &his process ta2es place outside of the
country and under the supervision of the
foreign adoption agency#
b) =or a period of 8 months#
c) f unsuccessful, !A$ shall loo2 for another
prospective applicant. ,epatriation of the
child is to be resorted only as a last resort#
d) f successful, !A$ transmits a written consent
for the adoption to be e'ecuted by the ?S0?,
129
consanguinity or a5nity of the
=ilipino spouse.
?ecree of Adoption" ssued by 3hilippine
=amily !ourt.
!onsent ,e-uired" 0ritten consent of the
following to the adoption is re-uired, in the
form of a5davit"
%) adoptee, if %F years of age or over#
() biological parentLs of the child, if
2nown, or the legal guardian, or the
proper government instrumentality
which has legal custody of the child#
)) legitimate and adopted sons or
daughters, %F years of age or over, of
the adopterLs and adoptee, if any#
*) illegitimate sonsLdaughters, %F years of
age of over, of the adopter if living with
said adopter and the latterDs spouse, if
any#
5) spouse, if any, of the person adopting
or to be adopted.
and the applicant then fles a petition for
adoption in hisLher country.
?ecree of Adoption" ssued by a foreign court.
!onsent ,e-uired"
%) 0ritten consent of biological or adopted
children above %F years of age, in the form of
sworn statement is re-uired to be attached to
the application to be fled with the =! or !A$#
() f a satisfactory pre.adoptive relationship is
formed between the applicant and the child,
the written consent to the adoption e'ecuted
by the ?S0? is re-uired.
DOMESTIC ADOPTION ACT
.RA C662J AM 02*0@*02*SC0
EFFECTS OF ADOPTION
T-#(s8e- 28 9#-e('#l #u'72-"'5 7 e'cept in
cases where the biological parent is the spouse of
the adopter, the parental authority of the
biological parents shall terminate and the same
shall be vested in the adopters.
Le:"'"#15 7 the adoptee shall be considered
the legitimate sonLdaughter of the adopter(s) for
all intents and purposes and as such is entitled to
all the rights and obligations provided by law to
legitimate sonsLdaughters born to them without
discrimination of any 2ind.
Su11ess"2(#l -":7's
a) n legal and intestate succession, the
adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate fliation#
b) 4owever, if the adoptee and hisLher
biological parent(s) had left a will, the law
on testamentary succession shall govern#
c) &he adoptee remains an intestate heir of
hisLher biological parent.
Issu#(1e 28 (e$ 1e-'"H1#'e #(! H-s' (#e
#(! su-(#e 28 #!29'ee
a) &he adoption decree shall state the name
by which the child is to be 2nown. An
amended certifcate of birth shall be
issued by the !ivil ,egistry attesting to
the fact that the adoptee is the child of
the adopter(s) by being registered with
hisLher surname#
b) &he original certifcate of birth shall be
stamped McancelledN with the annotation
of the issuance of an amended birth
certifcate in its place and shall be sealed
in the civil registry records. &he new birth
certifcate to be issued to the adoptee
shall not bear any notation that it is an
amended issue#
c) All records, boo2s, and papers relating to
the adoption cases in the fles of the court,
the ?S0?, or any other agency or
institution participating in the adoption
proceedings shall be 2ept strictly
confdential and the court may order its
release under the following conditions
only" (%) the disclosure of the information
to a third person is necessary for purposes
connected with or arising out of the
adoption# (() the disclosure will be for the
best interest of the adoptee# and ()) the
court may restrict the purposes for which
it may be used.
INSTANCES W%EN ADOPTION MAY BE
RESCINDED
G-2u(!s 82- -es1"ss"2(B
130
a) ,epeated physical and verbal
maltreatment by the adopter(s) despite
having undergone counselling#
b) Attempt on the life of the adoptee#
c) Se'ual assault or violence# or
d) Abandonment and failure to comply with
parental obligations.
P-es1-"9'")e 9e-"2!B
a) f incapacitated 7 within fve (5) years after
he reaches the age of ma+ority#
b) f incompetent at the time of the adoption
7 within fve (5) years after recovery from
such incompetency.
EFFECTS OF RESCISSION OF ADOPTION
%) 3arental authority of the adopteeDs biological
parent(s), if 2nown, or the legal custody of the
?S0? shall be restored if the adoptee is still a
minor or incapacitated#
() ,eciprocal rights and obligations of the
adopter(s) and the adoptee to each other
shall be e'tinguished#
)) !ancellation of the amended certifcate of
birth of the adoptee and restoration of hisLher
original birth certifcate# and
*) Succession rights shall revert to its status
prior to adoption, but only as of the date of
+udgment of +udicial rescission. Vested rights
ac-uired prior to +udicial rescission shall be
respected.
INTER*COUNTRY ADOPTION .RA C0430
nter.!ountry Adoption refers to the socio.legal
process of adopting a =ilipino child by a foreigner
or a =ilipino citi6en permanently residing abroad
where the petition is fled, the supervised trial
custody is underta2en, and the decree of
adoption is issued in the 3hilippines.
W%EN ALLOWED
nter.country adoptions are allowed when the
same shall prove benefcial to the childDs best
interests, and shall serve and protect hisLher
fundamental rights.
t is allowed when all the re-uirements and
standards set forth under ,A KF*) are
complied with.
FUNCTIONS OF T%E RTC
An application to adopt a =ilipino child shall be
fled either with the 3hilippine ,egional &rial !ourt
having +urisdiction over the child, or with the
$oard, through an intermediate agency, whether
governmental or an authori6ed and accredited
agency, in the country of the prospective
adoptive parents, which application shall be in
accordance with the re-uirements as set forth in
the implementing rules and regulations.
LBEST INTEREST OF T%E MINORM
STANDARD
n case of custody cases of minor children, the
court after hearing and bearing in mind the best
interest of the minor, shall award the custody as
will be for the minorDs best interests.
LBes' "('e-es's 28 '7e 17"l!M . means the
totality of the circumstances and conditions as
are most congenial to the survival, protection,
and feelings of security of the child and most
encouraging to his physical, psychological, and
emotional development. t also means the least
detrimental available alternative for safeguarding
the growth and development of the child.
WRIT OF %ABEAS CORPUS .RULE 1020
0rit of habeas corpus is a writ which has been
esteemed to the best and only su5cient defense
of personal freedom having for its ob+ect the
speedy release by +udicial decree of persons who
are illegally restrained of their liberty, or illegally
detained from the control of those who are
entitled to their custody.
&he writ of habeas corpus shall e'tend to all
cases of illegal confnement or detention by
which any person is deprived of his liberty, or by
which the rightful custody of any person is
withheld from the person entitled thereto. &he
function of the special proceeding of habeas
corpus is to in-uire into the legality of one@s
detention.
n all petitions for habeas corpus, the court must
in-uire into every phase and aspect of the
petitioner@s detention from the moment petitioner
was ta2en into custody up to the moment the
court passes upon the merits of the petition and
only after such scrutiny can the court satisfy itself
that the due process clause of the !onstitution
has been satisfed.
4owever, once the person detained is duly
charged in court, he may no longer -uestion his
detention by a petition for the issuance of a writ
of habeas corpus. 4is remedy then is the -uashal
of the information andLor the warrant of arrest
duly issued. &he reason for the issuance of the
131
writ even becomes more unavailing when the
person detained fles a bond for his temporary
release.
4abeas corpus may not be used as a means of
obtaining evidence on the whereabouts of a
person, or as a means of fnding out who has
specifcally abducted or caused the
disappearance of a certain person.
&he writs of habeas corpus and certiorari may be
ancillary to each other where necessary to give
e/ect to the supervisory powers of the higher
courts. A writ of habeas corpus reaches the body
and the +urisdictional matters, but not the record.
A writ of certiorari reaches the record but not the
body. 4ence, a writ of habeas corpus may be
used with the writ of certiorari for the purpose of
review.
&he general rule is that the release, whether
permanent or temporary, of a detained person
renders the petition for habeas corpus moot and
academic, unless there are restraints attached to
his release which precludes freedom of action, in
which case the !ourt can still in-uire into the
nature of his involuntary restraint. 3etitioner@s
temporary release does not render the petition
for writ moot and academic.
Some instances when the writ may issue"
%) &o in-uire into the legality of an order of
confnement by a court martial.
() &o test the legality of an alien@s
confnement and proposed e'pulsion from
the 3hilippines.
)) &o enable parents to regain custody of a
minor child, even if the latter be in the
custody of a third person of her own free
will.
*) &o obtain freedom for an accused confned
for failure to post bail where the
prosecuting o5cer unreasonably delays
trial by continued postponement.
5) &o give retroactive e/ect to a penal
provision favorable to the accused when
the trial +udge has lost +urisdiction by
virtue of the fnality of the +udgment of
conviction.
8) &o determine the constitutionality of a
statute.
J) &o permit an alien to land in the
3hilippines.
K) &o put an end to an immoral situation, as
when a minor girl, although preferring to
stay with her employer, maintains illicit
relationship with him.
E) 0hen a bond given by an accused entitled
thereto is not admitted or e'cessive bail is
re-uired of him.
%F) &o determine the legality of an e'tradition.
%%) &o determine the legality of the action of a
legislative body in punishing a citi6en for
contempt.
%() &o obtain freedom after serving minimum
sentence when the penalty under an old
law has been reduced by an amendatory
law.
(5ote? for +45<75<( 4) <=7 P7<9<945 and
+45<75<( 4) <=7 07<>05 of =abeas
+orpus, please see the table below)
PEREMPTORY WRIT PRELIMINARY
CITATION
>nconditionally
commands the
respondent to have
the body of the
detained person
before the court at a
time and place therein
specifed#
,e-uires the
respondent to appear
and show cause why
the peremptory writ
should not be granted
W%EN NOT PROPER>APPLICABLE
nstances when the writ of habeas corpus is not
proper are"
a) =or asserting or vindicating denial of right
to bail#
b) =or correcting errors in appreciation of
facts or appreciation of law 7 where the
trial court had no +urisdiction over the
cause, over the person of the accused,
and to impose the penalty provided for by
law, the mista2e committed by the trial
court, in the appreciation of the facts
andLor in the appreciation of the law
cannot be corrected by habeas corpus#
c) Ance a person detained is duly charged in
court, he may no longer fle a petition for
habeas corpus. 4is remedy would be to
-uash the information or warrant.
W%EN WRIT DISALLOWED>DISC%ARGED
f it appears that the person alleged to be
restrained of his liberty is in the custody of an
o5cer under process issued by a court or +udge
or by virtue of a +udgment or order of a court of
record, and that the court or +udge had
+urisdiction to issue the process, render the
+udgment, or ma2e the order, the writ shall not be
allowed# or if the +urisdiction appears after the
writ is allowed, the person shall not be discharged
132
by reason of any informality or defect in the
process, +udgment, or order. <or shall anything in
this rule be held to authori6e the discharge of a
person charged with or convicted of an o/ense in
the 3hilippines, or of a person su/ering
imprisonment under lawful +udgment.
WRIT OF %ABEAS
CORPUS
WRIT OF AMPARO WRIT OF %ABEAS DATA
A remedy available to any
person, it covers cases of
illegal confnement or
detention by which any
person is deprived of his
liberty, or by which the
rightful custody of any
person is withheld from the
person entitled thereto.
A remedy available to any
person whose -":7' '2 l"8e/
l"&e-'5 #(! se1u-"'5 "s
)"2l#'e! 2- '7-e#'e(e! with
violation by an unlawful act or
omission of a public o5cial or
employee, or of a private
individual or entity. &he writ
covers e'tra+udicial 2illings
and enforced disappearances
or threats thereof.
t is a form of constitutional
relief.
A remedy available to any person
whose -":7' '2 9-")#15 "( l"8e/
l"&e-'5 2- se1u-"'5 "s )"2l#'e! 2-
'7-e#'e(e! by an unlawful act or
omission of a public o5cial or
employee, or of a private individual
or entity engaged in the gathering,
collecting or storing of data or
information regarding the person,
family, home and correspondence
of the aggrieved party.
>ho $"+ ?e !etition0
$y the party for whose relief
it is intended, or by some
person on his behalf.
>ho $"+ ?e (in or'er)0
a) Any member of the
immediate family" spouse,
children and parents of the
aggrieved party#
b) Any ascendant,
descendant or collateral
relative of aggrieved party
within the *th civil degree
of consanguinity or a5nity#
c) Any concerned citi6en,
organi6ation, association
or institution, if no 2nown
member of immediate
family.
Giin3 %+ the "33rie6e' !"rt+
sus!en's the ri3ht of " other
"uthoriKe' !erson to ?e such
!etition.
>ho $"+ ?e (in or'er)0
a) Any member of the immediate
family" spouse, children and
parents of the aggrieved party#
b) Any ascendant, descendant or
collateral relative of aggrieved
party within the *th civil degree
of consanguinity or a5nity.
>here to ?e0
,&!, enforceable within its
area of +urisdiction. !A or S!,
enforceable anywhere in the
3hilippines.
>here to ?e0
,&!, Sandiganbayan, !A, S!#
0rit is enforceable anywhere
in the 3hilippines.
>here to ?e0
,&!, S!, !A, Sandiganbayan# 0rit is
also enforceable anywhere in the
3hilippines.
>here is the 6enue0
f fled in the ,&!"
a) in the place where the petitioner
resides#
b) in the place where the
respondents reside#
c) in the place where the data or
information is gathered,
collected or stored.
7 At the option of the petitioner
3etitioner is e'empted to pay
doc2et and other lawful fees.
ndigent petitioner is e'empted to
pay doc2et and other lawful fees.
>hen issue'0
=orthwith when a petition
therefor is presented and it
>hen issue'0
mmediately if on its face it
ought to be issued# Served
>hen issue'0
mmediately if on its face it ought to
be issued# Served within ) days
133
appears that the writ ought
to issue,
immediately# Summary
hearing set not later than
seven (J) days from date of
issuance.
from issuance# Summary hearing
set not later than ten (%F) wor2
days from date of issuance.
Contents of 6eri?e' !etition0
a) &hat the person in whose
behalf the application is
made is imprisoned or
restrained of his liberty#
b) &he o5cer or name of
the person by whom he
is so imprisoned or
restrained# or, if both are
un2nown or uncertain,
such o5cer or person
may be described by an
assumed appellation,
and the person who is
served with the writ shall
be deemed the person
intended#
c) &he place where he is so
imprisoned or restrained,
if 2nown#
d) A copy of the
commitment or cause of
detention of such person,
if it can be procured
without impairing the
e5ciency of the remedy#
or, if the imprisonment or
restraint is without any
legal authority, such fact
shall appear
Contents of 6eri?e' !etition0
a) 3ersonal circumstances of
petitioner and of
respondent responsible for
the threat, act or omission#
b) Violated or threatened
right to life, liberty and
security of aggrieved
party, and how committed
with attendance
circumstances detailed in
supporting a5davits#
c) nvestigation conducted,
specifying names, personal
circumstances and
addresses of investigating
authority or individuals, as
well as manner and
conduct of investigation
together with any report#
d) Actions and recourses
ta2en by petitioner to
determine the fate or
whereabouts of aggrieved
party and identity of
person responsible for the
threat, act or omission#
and
e) &he relief prayed for.
f) ;ay include general prayer
for other +ust and e-uitable
reliefs.
Contents of 6eri?e' !etition0
a) 3ersonal circumstances of
petitioner and respondent#
b) &he manner the right to privacy
is violated or threatened and
how it a/ects the right to life,
liberty or security of aggrieved
party#
c) Actions and recourses ta2en by
petitioner to secure the data or
information#
d) Gocation of fles, registers or
databases, government o5ce,
and the person in charge, in
possession or in control of the
data or information, if 2nown#
e) ,eliefs prayed for, which may
include the updating,
rectifcation, suppression or
destruction of the database or
information or fles 2ept by
respondent#
f) n case of threats, relief may
include a prayer for an order
en+oining the act complained of#
and
g) Such other reliefs as are +ust
and e-uitable.
b) f he has the party in his
custody or power, or
under restraint, the
authority and the true
and whole cause thereof,
set forth at large, with a
copy of the writ, order,
e'ecution, or other
process, if any, upon
which the party is held#
c) f the party is in his
custody or power or is
restrained by him, and is
not produced,
particularly the nature
and gravity of the
sic2ness or infrmity of
such party by reason of
which he cannot, without
danger, be brought
before the court or
+udge#
d) f he has had the party in
Contents of return0
0ithin J( hours after service
of the writ, respondent shall
fle a verifed written return
together with the supporting
a5davits, which shall contain"
a) Gawful defenses#
b) Steps or actions ta2en to
determine whereabouts of
aggrieved party#
c) All relevant information
pertaining to threat, act or
omission against
aggrieved party#
d) f respondent is a public
o5cial or employee,
further state"
%) verify the identity of
aggrieved#
() recover and preserve
evidence related to
death or disappearance
of person identifed in
Contents of return0
a) Gawful defenses such as
national security, state secrets,
privileged communications,
confdentiality of source of
information#
b) ?isclosure of dataLinfo about
petitioner, nature of dataLinfo,
purpose of collection#
c) Steps or actions ta2en by
respondent to ensure security
and confdentiality of data or
information#
d) !urrency and accuracy of data
or information#
e) Ather allegations relevant to
resolution of the proceedings.
Z A 3ener" 'eni" of the
"e3"tions in the !etition is not
"o)e'.
134
his custody or power, or
under restraint, and has
transferred such custody
or restraint to another,
particularly to whom, at
what time, for what
cause, and by what
authority such transfer
was made.
petition#
)) identify witnesses and
their statements#
*) determine cause,
manner, location and
time of death or
disappearance as well
as pattern or practice#
5) identify and apprehend
personLs involved in
the
deathLdisappearance#
8) bring suspected
o/enders before a
competent court.
H7ects of f"iure to ?e return0
&he court, +ustice or +udge
shall proceed to hear the
petition e' parte.
H7ects of f"iure to ?e return0
&he court, +ustice or +udge shall
proceed to hear the petition e'
parte, granting the petitioner such
relief as the petition may warrant
unless the court in its discretion
re-uires petitioner to submit
evidence.
Proce'ure for he"rin30
&he hearing on the petition
shall be summary. 4owever
the court, +ustice or +udge may
call for a preliminary
conference to simplify the
issues and determine the
possibility of obtaining
stipulations and admissions
from the parties. &he hearing
shall be from day to day until
completed and given the
same priority as petitions for
habeas corpus.
Proce'ure for he"rin30
&he hearing on the petition shall be
summary. 4owever the court,
+ustice or +udge may call for a
preliminary conference to simplify
the issues and determine the
possibility of obtaining stipulations
and admissions from the parties.
a) ) &emporary 3rotection
Arder 7 protected in a
government agency of by
an accredited person or
private institution capable
of 2eeping and securing
their safety#
b) nspection Arder 7 with a
lifetime of 5 days which
may be e'tended, may be
opposed on the ground of
national security or
privileged information,
allows entry into and
inspect, measure, survey
or photograph the
property#
c) 3roduction Arder 7 to
re-uire respondents to
produce and permit
inspection, copying or
photographing of
(<ot applicable)
135
documents, papers, boo2s,
accounts, letters,
photographs, ob+ects or
tangible things that
contain evidence.
d) 0itness 3rotection Arder 7
the court may refer the
witnessed to the ?A:
H7ect of ?in3 cri$in" "ction0
A criminal action frst fled
e'cludes the fling of the writ#
relief shall be by motion in the
criminal case. A criminal case
fled subse-uently shall be
consolidated with the petition
for the writ of amparo.
H7ect of ?in3 cri$in" "ction0
A criminal action frst fled e'cludes
the fling of the writ# relief shall be
by motion in the criminal case# A
criminal case fled subse-uently
shall be consolidated with the
petition for the writ of habeas data.
A!!e"0
&o the S! under ,ule *5,
within *K hours from notice
of +udgment. A writ of
habeas corpus does not lie
where petitioner has the
remedy of appeal or
certiorari because it will not
be permitted to perform the
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having +urisdiction over the
person and the sub+ect
matter.
A!!e"0
&o the S! under ,ule *5,
within 5 days from notice of
adverse +udgment, to be given
the same priority as habeas
corpus cases.
A!!e"0
Any party may appeal the decision
within 5 wor2ing days from the fnal
+udgment or order to the S! by way
of 3etition for ,eview on !ertiorari
under ,ule *5 on pure -uestions of
law and facts or both, to be given
the same priority as habeas corpus
and amparo cases.
Bu"ntu$ of !roof0
$y substantial evidence.
3rivate respondent to prove
ordinary diligence was
observed in the performance
of duty. 3ublic
o5cialLemployee respondent
to prove e'traordinary
diligence was observed, and
cannot invo2e the
presumption that o5cial duty
has been regularly performed
to evade responsibility or
liability.
Bu"ntu$ of !roof0
&he court shall render +udgment
within %F days from the time the
petition is submitted for decision. f
the allegations are proven by
substantial evidence, the court shall
en+oin the act complained of, or the
deletion, destruction, or rectifcation
of the erroneous data or information
and grant other reliefs as may be
+ust and e-uitable# otherwise the
privilege shall be denied.
RULES ON CUSTODY OF MINORS AND WRIT
OF %ABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS .AM NO= 03*04*04*SC0
&he =amily !ourt has e'clusive original
+urisdiction to hear petitions for custody of minors
and the issuance of the writ of habeas corpus in
relation to custody of minors. &he !ourt is tas2ed
with the duty of promulgating special rules or
procedure for the disposition of family cases with
the best interests of the minor as primary
consideration, ta2ing into account the >nited
<ations !onvention on the ,ights of the !hild. t
should be clarifed that the writ is issued by the
=amily !ourt only in relation to custody of minors.
An ordinary petition for habeas corpus should be
fled in the regular !ourt. &he issue of child
136
custody may be tac2led by the =amily !ourt
without need of a separate petition for custody
being fled.
&he !ommittee chose the phrase Many person
claiming custodyN as it is broad enough to cover
the following" (a) the unlawful deprivation of the
custody of a minor# or (b) which parent shall have
the care and custody of a minor, when such
parent is in the midst of nullity, annulment or
legal separation proceedings.
&he hearings on custody of minors may, at the
discretion of the court, be closed to the public
and the records of the case shall not be released
to non.parties without its approval.
A motion to dismiss the petition is not allowed
e'cept on the ground of lac2 of +urisdiction over
the sub+ect matter or over the parties. Any other
ground that might warrant the dismissal of the
petition shall be raised as an a5rmative defense
in the answer.
>pon the fling of the verifed answer of the
e'piration of the period to fle it, the court may
order a social wor2er to ma2e a case study of the
minor and the parties and to submit a report and
recommendation to the court at least three days
before the scheduled pre.trial.
%2l! De9#-'u-e O-!e- 7 &he minor child sub+ect
of the petition shall not be brought out of the
country without prior order from the court while
the petition is pending. &he court motu propio or
upon application under oath may issue e' parte a
hold departure order addressed to the $? of the
?A: a copy of the hold departure order within (*
hours from its issuance and through the fastest
available means of transmittal.
WRIT OF AMPARO .AM NO= 07*A*12*SC0
(See table above)
WRIT OF AMPARO SEARC% WARRANT
Issu"nce of the >rit.
>pon the fling of the
petition, the court,
+ustice or +udge shall
immediately order the
issuance of the writ if
on its face it ought to
issue. &he cler2 of
court shall issue the
writ under the seal of
the court# or in case of
urgent necessity, the
*e(uisites for issuin3
se"rch )"rr"nt
A search warrant shall
not issue e'cept upon
probable cause in
connection with one
specifc o/ense to be
determined personally
by the +udge after
e'amination under oath
or a5rmation of the
complainant and the
+ustice or the +udge
may issue the writ in
his or her own hand,
and may deputi6e
any o5cer or person to
serve it. &he writ shall
also set the date and
time for summary
hearing of the petition
which shall not be later
than seven (J) days
from the date of its
issuance.
witness he may
produce, and
particularly describing
the place to be
searched and the things
to be sei6ed which may
be anywhere in the
3hilippines.
OMNIBUS WAIVER RULE
?efenses <ot 3leaded ?eemed 0aived U All
defenses shall be raised in the return, otherwise,
they shall be deemed waived.
WRIT OF %ABEAS DATA .AM NO= 0C*1*1@*
SC0
S129e 28 $-"'J A)#"l#&"l"'5 28 $-"'J
D"s'"(:u"s7 8-2 %#&e#s C2-9us #(!
A9#-2J W72 #5 HleJ C2('e('s 28 '7e
9e'"'"2(J C2(s2l"!#'"2(J EDe1' 28 Hl"(: 28 #
1-""(#l #1'"2(J I(s'"'u'"2( 28 se9#-#'e
#1'"2( ((ee table above)
INSTANCES W%EN PETITION BE %EARD IN
C%AMBERS
A hearing in chambers may be conducted where
the respondent invo2es the defense that the
release of the data or information in -uestion
shall compromise national security or state
secrets, or when the data or information cannot
be divulged to the public due to its nature or
privileged character.
C%ANGE OF NAME .RULE 1030
A change of name is a special proceeding to
establish the status of a person involving his
relation with others, that is, his legal position
in, or with regard to, the rest of the
community. t is proceeding in rem and as
such, strict compliance with +urisdictional
re-uirements, particularly on publication, is
essential in order to vest the court with
+urisdiction therefor. =or this purpose, the only
name that may be changed is the true or
o5cial name as recorded in the civil register.
137
A mere change of name would not cause in
one@s e'isting family relations, nor create new
family rights and duties where none e'ists
before. <either would it a/ect a person@s legal
capacity, civil status or citi6enship.
A change of name granted by the court
a/ects only the petitioner. A separate petition
for change of name must be fled by his wife
and children.
RULE 103 (+hange of 5ame) RA A04C (+lerical 7rror
Act)
RULE 10C (+ancellation
or correction of entries in
the civil registry)
3etition should be fled in the ,&!
where the petitioner resides
3etitions fled with the city or
municipal civil registrar, or
with consul general for
citi6ens living abroad
Verifed petition fled in the
,&! where the corresponding
!ivil ,egistry is located
!ivil ,egistrar is not a party.
Solicitor Beneral to be notifed by
service of a copy of petition.
!ivil ,egistrar is an
indispensable party. f not
made a party, proceedings
are null and void. ,eason" he
is interested party in
protecting the integrity of
public documents. Solicitor
Beneral must also be
notifed by service of a copy
of the petition.
3etition is fled by the person
desiring to change his name
Verifed petition in the form of
a5davit is fled by any
person having direct and
personal interest in the
correction
$y a person interested in
any acts, event, order or
decree
nvolves change of name only nvolves frst name and
nic2name
All cancellation or correction
of entries of" (see %eo)
3roun's or inst"nces)
nvolves substantial changes nvolves clerical or
typographical errors
Substantial and adversary if
change a/ects the civil
status, citi6enship or
nationality of a party#
Summary if involves mere
clerical errors.
138
Jroun's0
a) <ame is ridiculous, dishonorable
or e'tremely di5cult to write or
pronounce#
b) !hange is a legal conse-uence
of legitimation or adoption#
c) !hange will avoid confusion#
d) Ane has continuously used and
been 2nown since childhood by
a =ilipino name and was
unaware of alien parentage#
e) !hange is based on a sincere
desire to adopt a =ilipino name
to erase signs of former
alienage, all in good faith and
without pre+udice to anybody#
and
f) Surname causes
embarrassment and there is no
showing that the desired change
of name was for a fraudulent
purpose, or that the change of
name would pre+udice public
interest.
Jroun's0
a) =irst name or nic2name is
found to be ridiculous,
tainted with dishonor or
e'tremely di5cult to write
or pronounce#
b) &he frst name or
nic2name has been
habitually and continuous
used by petitioner
publicly 2nown by that
frst name or nic2name in
the community#
c) !hange will avoid
confusion.
Jroun's0
!ancellation or correction of
entries of" (a) births# (b)
marriages# (c) deaths# (d)
legal separation# (e)
+udgments or annulments of
marriage# (f) +udgments
declaring marriages void
from the beginning# (g)
legitimations# (h) adoptions#
(i) ac2nowledgments of
natural children# (+)
naturali6ations# (2) election,
loss or recovery of
citi6enship# (l) civil
interdiction# (m) +udicial
determination of fliation# (n)
voluntary emancipation of a
minor# and (o) changes of
name.
Arder for hearing to be published
once a wee2 for three consecutive
wee2s in a newspaper of general
circulation in the province.
3etition shall be published at
least once a wee2 for two
consecutive wee2s in a
newspaper of general
circulation. Also to be posted
in a conspicuous place for ten
consecutive days.
Arder shall also be published
once a wee2 for three
consecutive wee2s in a
newspaper of general
circulation in the province,
and court shall cause
reasonable notice to persons
named in the petition.
9ntry is correct but petitioner
desires to change the entry
9ntry is incorrect. !ancellation or correction of
correct or incorrect entries
An appropriate adversary
proceeding
An appropriate administrative
proceeding.
An appropriate summary or
adversary proceeding
depending on e/ects
,e-uires +udicial order ?oes not re-uire +udicial
order.
?irected or changed by the
city or municipal civil
registrar or consul general
without +udicial order
Service of +udgment shall be upon
the civil register concerned
&ransmittal of decision to civil
registrar general
Service of +udgment shall be
upon the civil register
concerned
Appeal may be availed of if
+udgment or fnal order rendered
a/ects substantial rights of person
appealing.
n case denied by the city or
municipal civil registrar or the
consul general, petitioner
may either appeal the
decision to the civil register
general or fle appropriate
petition with proper court by
petition for review under ,ule
*).
Appeal may be availed of if
+udgment or fnal order
rendered a/ects substantial
rights of person appealing,
to the ,&! or to the !A.
GROUNDS FOR C%ANGE OF NAME
(!e"se see t"%e "%o6e)
ABSENTEES .RULE 1070
S'#:es 28 #&se(1eB
139
%) provisional absence
() declaration of absence
)) presumption of death
PURPOSE OF T%E RULE
&he purpose of the ,ule is to allow the court to
appoint an administrator or representative to ta2e
care of the property of the person who is sought
to be +udicially declared absent. t also aims to
have the court appoint the present spouse as
administrator or administratri' of the absent
spouseDs properties, or for the separation of
properties of the spouses.
W%O MAY FILEJ W%EN TO FILE
&he following may fle an application for the
declaration of absence of a person"
a) Spouse present#
b) 4eirs instituted in a will, who may present
an authentic copy of the same#
c) ,elatives who would succeed by the law of
intestacy# and
d) &hose who have over the property of the
absentee some right subordinated to the
condition of his death.
e) &hose who have over the property of the
absentee some right subordinated to the
condition of his death.
After the lapse of two (() years from his
disappearance and without any news
about the absentee or since the receipt of
the last news, or of fve (5) years in case
the absentee has left a person in charge of
the administration of his property, the
declaration of his absence and
appointment of a trustee or administrator
may be applied for.
0hen a person disappears from his
domicile, his whereabouts being un2nown,
and without having left an agent to
administer his property, or the power
conferred upon the agent has e'pired, any
interested party, relative or friend, may
petition the !ourt of =irst nstance of the
place where the absentee resided before
his disappearance for the appointment of
a person to represent him provisionally in
all that may be necessary.
CANCELLATION OR CORRECTION OF
ENTRIES IN T%E CIVIL REGISTRY .RULE 10C0
E('-"es su&;e1' '2 1#(1ell#'"2( 2- 12--e1'"2(
u(!e- Rule 10C/ "( -el#'"2( '2 RA A04C
>pon good and valid grounds, the
following entries in the civil register may
be cancelled or corrected"
%) births#
() marriages#
)) deaths#
*) legal separations#
5) +udgments of annulments of marriage#
8) +udgments declaring marriages void from
the beginning#
J) legitimations#
K) adoptions#
E) ac2nowledgments of natural children#
%F) naturali6ation
%%) election, loss or recovery of citi6enship
%() civil interdiction#
%)) +udicial determination of fliation#
%*) voluntary emancipation of a minor# and
%5) changes of name.
!orrection may be e/ected in two ways. Ane is
without +udicial authority or by administrative
proceeding, which is governed by ,A EF*K on
matters relating to correction of mere clerical or
typographical errors. &he other is through +udicial
or court proceedings, which is governed by ,ule
%FK.
&he petition for change of frst names or
nic2names may be allowed when such names or
nic2names are ridiculous, tainted with dishonor or
e'tremely di5cult to write or pronounce# or the
new name or nic2name has been used habitually
and continuously petitioner and has been publicly
2nown by that frst name or nic2name in the
community# or the change will avoid confusion.
APPEALS IN SPECIAL PROCEEDING .RULE
10A0
,UDGMENTS AND ORDERS FOR W%IC%
APPEAL MAY BE TA+EN
An interested person may appeal in special
proceedings from an order or +udgment rendered
by a !ourt of =irst nstance or a :uvenile and
?omestic ,elations !ourt, where such order or
+udgment"
a) Allows or disallows a will#
b) ?etermines who are the lawful heirs of a
deceased person, or the distributive share
of the estate to which such person is
entitled#
c) Allows or disallows, in whole or in part,
any claim against the estate of a
deceased person, or any claim presented
140
on behalf of the estate in o/set to a claim
against it#
d) Settles the account of an e'ecutor,
administrator, trustee or guardian#
e) !onstitutes, in proceedings relating to the
settlement of the estate of a deceased
person, or the administration of a trustee
or guardian, a fnal determination in the
lower court of the rights of the party
appealing, e'cept that no appeal shall be
allowed from the appointment of a special
administrator# and
f) s the fnal order or +udgment rendered in
the case, and a/ects the substantial rights
of the person appealing, unless it be an
order granting or denying a motion for a
new trial or for reconsideration.
W%EN TO APPEAL
Appeals in special proceedings necessitate a
record on appeal as the original record should
remain with the trial court# hence the
reglementary period of thirty ()F) days is
provided for the perfection of appeals in special
proceedings.
MODES OF APPEAL
0hile under the concept in ordinary civil
actions some of the orders stated in Sec. %
may be considered interlocutory, the nature
of special proceedings declares them as
appealable orders, as e'ceptions to the
provisions of Sec., *ue 91. &hus"
%) O-!"(#-5 #99e#l= &he appeal to the !A in
cases decided by the ,&! in the e'ercise of its
original +urisdiction shall be ta2en by fling a
notice of appeal with the court which
rendered the +udgment or fnal order appealed
from and serving a copy thereof upon the
adverse party. <o record on appeal shall be
re-uired e'cept in special proceedings and
other cases of multiple or separate appeals
where the law or the ,ules so re-uire. n such
cases, the record on appeal shall be fled and
served in li2e manner.
() Pe'"'"2( 82- -e)"e$= &he appeal to the !A in
cases decided by the ,&! in the e'ercise of its
appellate +urisdiction shall be by petition for
review in accordance with ,ule *(.
)) Pe'"'"2( 82- -e)"e$ 2( 1e-'"2-#-"= n all
cases where only -uestions of law are raised
or involved, the appeal shall be to the S! by
petition for review on certiorari in accordance
with ,ule *5.
RULE ON ADVANCE DISTRIBUTION
<otwithstanding a pending controversy or appeal
in proceedings to settle the estate of a decedent,
the court may, in its discretion and upon such
terms as it may deem proper and +ust, permit
that such part of the estate as may not be
a/ected by the controversy or appeal be
distributed among the heirs or legatees, upon
compliance with the conditions set forth in ,ule
EF of these rules.
RULES OF CRIMINAL PROCEDURE .Rules 110 1270
GENERAL MATTERS
,URISDICTION
OVER SUB,ECT
MATTER
,URISDICTION
OVER PERSON OF
T%E ACCUSED
?erived from the law.
?oes not depend
upon the consent or
omission of the
parties to the action
or any of them#
;ay be conferred by
consent e'pressly or
impliedly given, or it
may, by ob+ection, be
prevented from
attaching or being
removed after it is
attached.
Ab+ection that the
court has no
f he fails to ma2e his
ob+ections in time, he
+urisdiction over the
sub+ect matter may
be made at any stage
of the proceeding,
and the right to ma2e
such ob+ection is
never waived.
will be deemed to
have waived it.
:urisdiction over the
sub+ect matter is
determined upon the
allegations made in
the complaint,
irrespective of
whether the plainti/
is entitled or not, to
:urisdiction over the
person of the
accused by voluntary
appearance or
surrender of the
accused or by his
arrest.
141
recover upon the
claim asserted
therein, a matter
resolved only after
and as a result of the
trial.
RE<UISITES FOR EXERCISE OF CRIMINAL
,URISDICTION
%) &he o/ense if one which the court is by law
authori6ed to ta2e cogni6ance of#
() &he o/ense must have been committed within
its territorial +urisdiction# and
)) &he person charged with the o/ense must
have been brought into its forum for trial,
forcibly or by warrant of arrest or upon his
voluntary submission to the court.
,URISDICTION OF CRIMINAL COURTS (see
&uris'iction of courts in ci6i !ro)
W%EN IN,UNCTION MAY BE ISSUED TO
RESTRAIN CRIMINAL PROSECUTION
B9<9,AG ,>G9" !riminal prosecution may not be
restrained or stayed by in+unction.
9S!93&A<S"
1) &o a/ord ade-uate protection to the
constitutional rights of the accused#
2) &hen necessary for the orderly
administration of +ustice or to avoid
oppression or multiplicity of actions#
3) 0hen there is a pre.+udicial -uestion
which is su% &u'ice;
9) 0hen the acts of the o5cer are without or
in e'cess of authority#
5) 0here the prosecution is under an invalid
law, ordinance or regulation#
<) 0hen double +eopardy is clearly apparent#
;) 0here the court has no +urisdiction over
the o/ense#
=) 0here it is a case of persecution rather
than prosecution#
9) 0here the charges are manifestly false
and motivated by the lust for vengeance#
1.) 0hen there is clearly no prima facie case
against the accused and a motion to
-uash on that ground has been denied#
and
11) &o prevent the threatened unlawful arrest
of petitioners.
PROSECUTION OF OFFENSES RULE 1100
CRIMINAL ACTIONSJ %OW INSTITUTED
%) =or o/enses where a preliminary investigation
is re-uired pursuant to section % of ,ule %%(,
by fling the complaint with the proper o5cer
for the purpose of conducting the re-uisite
preliminary investigation.
() =or all other o/enses, by fling the complaint
or information directly with the ;unicipal &rial
!ourts and ;unicipal !ircuit &rial !ourts, or
the complaint with the o5ce of the
prosecutor.
)) n ;anila and other chartered cities, the
complaint shall be fled with the o5ce of the
prosecutor, unless otherwise provided in their
charters.
&he institution of the criminal action shall
interrupt the period of prescription of the
o/ense charged unless otherwise provided in
special laws.
3reliminary investigation is re-uired for
o/enses punishable by at least * years, (
months, and % day, unless the accused was
lawfully arrested without a warrant, in which
case, an in-uest must have been conducted.
W%O MAY FILE T%E CRIMINAL ACTION
%) A/ended party
() Any peace o5cer# or
)) Ather public o5cer charged with the
enforcement of the law violated.
All criminal actions commenced by complaint or
information shall be prosecuted under the
direction and control of the prosecutor.
n the ;unicipal &rial !ourts or ;unicipal !ircuit
&rial !ourts when the prosecutor assigned thereto
or to the case is not available, the o/ended party,
any peace o5cer, or public o5cer charged with
the enforcement of the law violated may
prosecute the case. &his authority shall cease
upon actual intervention of the prosecutor or
upon elevation of the case to the ,egional &rial
!ourt.
RIMES T%AT CANNOT BE PROSECUTED DE
OFICIO
%) A!ul'e-5 #(! 12(1u&"(#:e 7 to be
prosecuted upon a complaint fled by the
o/ended spouse, impleading both guilty
parties, if both alive, unless he shall have
consented or pardoned the o/enders#
() Se!u1'"2(/ #&!u1'"2(/ 2- #1's 2-
l#s1")"2us(ess 7 to be prosecuted upon a
complaint fled by the o/ended party or her
142
parents, grandparents, or guardian, unless
e'pressly pardoned by the above named
persons (in such stated order)#
)) De8##'"2( "9u'"(: # 9e-s2( #(5 28 '7e
82ll2$"(: 1-"es 28 12(1u&"(#:e/
#!ul'e-5/ se!u1'"2(/ #&!u1'"2( 2-
l#s1")"2us(ess 7 can be prosecuted only by
the party defamed.
&he o/ended party, even if a minor, has the right
to initiate the prosecution of the o/enses of
seduction, abduction and acts of lasciviousness
independently of her parents, grandparents or
guardian, unless she is incompetent or incapable
of doing so. 0here the o/ended party, who is a
minor, fails to fle the complaint, her parents,
grandparents, or guardian may fle the same. &he
right to fle the action granted to parents,
grandparents or guardian shall be e'clusive of all
other persons and shall be e'ercised successively
in the order herein provided, e'cept as stated in
the preceding paragraph.
CONTROL OF PROSECUTION
Anly the Solicitor Beneral may represent the
3eople of the 3hilippines on appeal. &he private
o/ended party or complainant may -uestion such
ac-uittal or dismissal or appeal therefrom only
insofar as the civil aspect is concerned, in the
name of the petitioner or appellant and not in the
name of the 3eople of the 3hilippines. &he rule
that the Solicitor Beneral is the lawyer of the
3eople in appellate courts admits an e'ception,
Min " c"ses ee6"te' to the S"n'i3"n%"+"n "n'
fro$ the S"n'i3"n%"+"n to the Su!re$e Court,
the I@ce of the I$%u's$"n, throu3h its s!eci"
!rosecutor, sh" re!resent the Peo!e of the
Phii!!ines, e#ce!t in c"ses ?e' !ursu"nt to HI
1, 2, 19 "n' 19/A, issue' in 19=<.N
&he prosecution determines the charges to be
fled and how the legal and factual elements in
the case shall be utili6ed as components of the
information. 0henever a criminal case is
prosecuted and the State is the o/ended party,
the case must always be prosecuted under
control and guidance of the State through the
government prosecutors.
&he prosecution may however be allowed to a
private prosecutor upon compliance with the
following conditions"
%) &he public prosecutor has a heavy wor2
schedule or there is no public prosecutor
assigned in the city or province#
() &he private prosecutor is authori6ed in
writing by the !hief of the 3rosecutor
A5ce or the ,egional State 3rosecutor
)) &he authority of the private prosecutor
must be approved by the court#
*) &he private prosecutor shall continue to
prosecute the case until the end of the
trial unless the authority is withdrawn or
otherwise revo2ed#
5) n case of the withdrawal or revocation of
the authority of the private prosecutor, the
same must be approved by court.
SUFFICIENCY OF COMPLAINT OR
INFORMATION
A complaint or information is su5cient if it states"
%) &he name of the accused#
() &he designation of the o/ense given by
the statute#
)) &he acts or omissions complained of as
constituting the o/ense#
*) &he name of the o/ended party#
5) &he appro'imate date of the commission
of the o/ense# and
8) &he place wherein the o/ense was
committed.
0hen an o/ense is committed by more than one
person, all of them shall be included in the
complaint or information. f the prosecutor
refuses to include one accused, the remedy is
mandamus.
DESIGNATION OF OFFENSE
&he complaint or information shall state the
designation of the o/ense given by the statute,
aver the acts or omissions constituting the
o/ense, and specify its -ualifying and
aggravating circumstances.
f there is no designation of the o/ense, reference
shall be made to the section or subsection of the
statute punishing it.
CAUSE OF T%E ACCUSATION
&he acts or omissions complained of as
constituting the o/ense and the -ualifying and
aggravating circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the statute
but in terms su5cient to enable a person of
common understanding to 2now what o/ense is
being charged as well as its -ualifying and
aggravating circumstances and for the court to
pronounce +udgment.
DUPLICITY OF T%E OFFENSEJ EXCEPTION
143
A complaint or information must charge only
one o/ense, 9S!93& when the law prescribes
a single punishment for various o/enses (Sec.
%)).
9'ception" &he law prescribes a single
punishment for various o/enses, such as in
continuing and comple' crimes.
AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION
A complaint or information may be amended, in
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal
amendment may only be made with leave
of court and when it can be done without
causing pre+udice to the rights of the
accused.
4owever, any amendment before plea, which
downgrades the nature of the o/ense charged in
or e'cludes any accused from the complaint or
information, can be made only upon motion by
the prosecutor, with notice to the o/ended party
and with leave of court. &he court shall state its
reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the
o/ended party.
f it appears at any time before +udgment that a
mista2e has been made in charging the proper
o/ense, the court shall dismiss the original
complaint or information upon the fling of a new
one charging the proper o/ense in accordance
with Section 19, *ue 119, provided the accused
would not be placed in double +eopardy. &he court
may re-uire the witnesses to give bail for their
appearance at the trial (Sec. 19).
H#ce!tion0 0hen a fact supervenes which
changes the nature of the crime charged
in the information or upgrades it to a
higher crime, a substantial amendment
may be made with a need for a re.
arraignment of the accused under the
amended information.
AMENDMENT AND SUBSTITUTION
DISTINGUIS%EDB
%) Amendment may involve either formal or
substantial changes# substitution
necessarily involves a substantial change
from the original charge#
() Amendment before plea has been entered
can be e/ected without leave of court#
substitution of information must be with
leave of court, as the original information
has to be dismissed#
)) 0here the amendment is only as to form,
there is no need for another preliminary
investigation and the reta2ing of the plea
of the accused# in substitution of
information, another preliminary
investigation is entailed and the accused
has to plead anew to the new information#
and
*) An amended information refers to the
same o/ense charged in the original
information or to an o/ense which
necessarily includes or is necessarily
included in the original charge# hence
substantial amendments to the
information after the plea has been ta2en
cannot be made over the ob+ection of the
accused, for if the original information
would be withdrawn, the accused could
invo2e double +eopardy. Substitution
re-uires or presupposes that the new
information involves di/erent o/ense
which does not include or is not
necessarily included in the original charge#
hence the accused cannot claim double
+eopardy.
VENUE OF CRIMINAL ACTIONS
B9<9,AG ,>G9" &he criminal action shall be
instituted and tried in the court of the
municipality or territory where the o/ense was
committed or where any of its essential
ingredients occurred.
9S!93&A<S"
%) ,here an o@ense is committed in a
railroad train, aircraft, or other public
or private vehicle in the course of its
trip / the criminal action shall be
instituted and tried in the court of any
municipality or territory where said train,
aircraft or other vehicle passed during its
trip, including the place of its departure
and arrival.
() ,here an o@ense is committed on
board a vessel in the course of its
voyage . the criminal action shall be
instituted and tried in the court of the frst
port of entry or of any municipality or
territory where the vessel passed during
such voyage, sub+ect to the generally
accepted principles of international law.
)) )elonies under Article 2 of the
0evised Penal +ode . shall be cogni6able
by the court where the criminal action is
frst fled.
*) Piracy : the venue of piracy, unli2e all
other crimes, has no territorial limits. t
may be tried anywhere.
144
5) 8ibel : the action may be instituted at the
election of the o/ended or suing party in
the province or city"
a) 0here the libellous article is
printed and frst published#
b) f one of the o/ended parties is a
private individual, where said
individual actually resides at the
time of the commission of the
o/ense#
c) f the o/ended party is a public
o5cial, where the latter holds
o5ce at the time of the
commission of the o/ense#
8) 9n e.ceptional cases D to ensure a fair
and impartial in-uiry. &he S! shall have
the power to order a change of venue or
place of trial to avoid the miscarriage of
+ustice.
J) 9n cases #led under AP 22 : the
criminal action shall be fled in the place
where the chec2 was issued and bounced.
n case of crossed.chec2, in the place of
depository.
INTERVENTION OF OFFENDED PARTY
0here the civil action for recovery of civil liability
is instituted in the criminal action pursuant to
*ue 111, the o/ended party may intervene by
counsel in the prosecution of the o/ense.
PROSECUTION OF CIVIL ACTION .RULE 1110
RULE ON IMPLIED INSTITUTION OF CIVIL
ACTION WIT% CRIMINAL ACTION
&he B9<9,AG ,>G9 is that the institution or fling
of the criminal action includes the institution
therein of the civil action for recovery of civil
liability arising from the o/ense charged, 9S!93&
in the following cases"
%) &he o/ended party waives the civil action#
() 4e reserves his right to institute the civil
action separately# or
)) 4e institutes the civil action prior to the
criminal action.
&he e'ception to the reservation re-uirement is a
claim arising out of a dishonored chec2 under $3
((, where no reservation to fle such civil action
separately shall be allowed, which means that the
fling of the criminal action for violation of $3 ((
shall be deemed to include the corresponding
civil action and that unless a separate civil action
has been fled before the institution of the
criminal action, no such civil action can be
instituted after the criminal action has been fled
as the same has been included therein.
Another instance where no reservation shall be
allowed and where a civil action fled prior to the
criminal action has to be transferred to the
subse-uently fled criminal action for +oint
hearing is a claim arising from an o/ense which is
cogni6able by the Sandiganbayan.
W%EN SEPARATE CIVIL ACTION IS
SUSPENDED
a) f criminal action has been commenced earlier
7 separate civil action cannot be instituted
until fnal +udgment has been entered in the
criminal action.
b) f the criminal action is fled after the separate
civil action has already been instituted 7
a. !ivil action suspended, in whatever
stage it may be found before +udgment
on the merits, until fnal +udgment is
rendered in the criminal action.
b. !ivil action may, upon motion of the
o/ended party, be consolidated with
the criminal action in the court trying
the criminal action
c. 9vidence already adduced in the civil
action shall be deemed automatically
reproduced in the criminal action
d. 0ithout pre+udice to the right of the
prosecution to cross.e'amine the
witnesses presented by the o/ended
party in the criminal case and the
parties to present additional evidence.
c) &he consolidated criminal and civil actions
shall be tried and decided +ointly.
d) ?uring the pendency of the criminal action,
the running of prescription of the civil action
which cannot be instituted separately or
whose proceeding has been suspended shall
be tolled.
&he bar on the institution or suspension of the
separate civil actions has the following e'ception"
n the cases provided for in Artices 32,
33, 39 "n' 21;< of the Ci6i Co'e, the
independent civil action may be brought
by the o/ended party. t shall proceed
independently of the criminal action and
shall re-uire only a preponderance of
evidence. n no case, however, may the
o/ended party recover damages twice for
the same act or omission charged in the
criminal action.
EFFECT OF T%E DEAT% OF ACCUSED OR
CONVICT ON CIVIL ACTION
145
&he death of the accused after arraignment and
during the pendency of the criminal action shall
e'tinguish the civil liability arising from the delict.
4owever, the independent civil action instituted
under section 3 of this *ue (*ue 111) or which
thereafter is instituted to enforce liability arising
from other sources of obligation may be
continued against the estate or legal
representative of the accused after proper
substitution or against said estate, as the case
may be. &he heirs of the accused may be
substituted for the deceased without re-uiring
the appointment of an e'ecutor or administrator
and the court may appoint a guardian ad litem for
the minor heirs.
&he court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty ()F) days
from notice.
A fnal +udgment entered in favor of the o/ended
party shall be enforced against the estate of the
deceased.
f the accused dies before arraignment, the case
shall be dismissed without pre+udice to any civil
action the o/ended party may fle against the
estate of the deceased.
PRE,UDICIAL <UESTION
A petition for suspension of the criminal action
based upon the pendency of a pre+udicial
-uestion in a civil action may be fled in the o5ce
of the prosecutor or the court conducting the
preliminary investigation. 0hen the criminal
action has been fled in court for trial, the petition
to suspend shall be fled in the same criminal
action at any time before the prosecution rests.
B9<9,AG ,>G9" !riminal action ta2es precedence
of civil actions.
9S!93&A<S"
a) independent civil actions
b) pre+udicial -uestion
3re+udicial -uestion which arises in a case the
resolution of which is a logical antecedent of the
issues involved in said cases, and the cogni6ance
of which pertains to another tribunal.
T7e elee('s 28 # 9-e;u!"1"#l Fues'"2( #-eB
a) the previously instituted civil action
involves an issue similar or
intimately related to the issue
raised in the subse-uent criminal
action, and
b) the resolution of such issue
determines whether or not the
criminal action may proceed.
&9S&" t must appear not only that the civil case
involves the same facts upon which the criminal
prosecution is based, but also that the resolution
of the issues in said civil action would be
necessarily determinative of the guilt or
innocence of the accused.
A pre+udicial -uestion can be interposed at the
A5ce of the 3rosecutor, but#
%) &he -uestion can also be raised in court#
() f raised, the court should merely suspend
the criminal case#
)) &he court must wait for a motion,
otherwise, that is a waiver#
*) &he court cannot $otu !ro!io suspend the
criminal case.
RULE ON FILING FEES IN CIVIL ACTION
DEEMED INSTITUTED WIT% T%E CRIMINAL
ACTION
0hen the o/ended party see2s to enforce civil
liability against the accused by way of moral,
nominal, temperate or e'emplary damages
without specifying the amount thereof in the
complaint or information, the fling fees therefor
shall constitute a frst lien on the +udgment
awarding such damages.
0here the amount of damages, other than actual,
is specifed in the complaint or information, the
corresponding fling fees shall be paid by the
o/ended party upon fling thereof in court. 9'cept
as otherwise provided in these ,ules, no fling
fees shall be re-uired for actual damages.
0ith respect to criminal actions for violations of
$3 ((, the o/ended party shall pay in full the
fling fees based on the face value of the chec2s
as the actual damages.
PRELIMINARY INVESTIGATION .RULE 1120
3reliminary investigation is an in-uiry or
proceeding for the purpose of determining
whether there is su5cient ground to engender a
well.founded belief that a crime has been
committed and that the respondent is probably
guilty thereof, and should be held for trial.
NATURE OF RIG%T
&he right to preliminary investigation is not a
constitutional grant# it is merely statutory and
146
may be invo2ed only when specifcally created by
statute. t is a component part of due process in
criminal +ustice.
3reliminary investigation is a function that
belongs to the public prosecutor. t is an
e'ecutive function, although the prosecutor, in
the discharge of such function, is a -uasi.+udicial
authority tas2ed to determine whether or not a
criminal case must be fled in court.
&he right to preliminary investigation may be
waived by the accused either e'pressly or
impliedly. &he posting of a bond by the accused
constitutes such a waiver, such that even if the
warrant was irregularly issued, any infrmity
attached to it is cured when the accused submits
himself to the +urisdiction of the court by applying
for bail. t is also cured by submitting himself to
arraignment
PURPOSES OF PRELIMINARY
INVESTIGATION
&he basic purpose of preliminary investigation is
to determine whether a crime has been
committed and whether there is probable cause
to believe that the accused is guilty thereof.
Benerally, preliminary investigation has a three.
fold purpose"
%) &o in-uire concerning the commission of
crime and the connection of accused with
it, in order that he may be informed of the
nature and character of the crime charged
against him, and if there is probable cause
for believing him guilty, that the state may
ta2e the necessary steps to bring him to
trial#
() &o preserve the evidence and 2eep the
witnesses within the control of the state#
and
)) &o determine the amount of bail, if the
o/ense is bailable.
W%O MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE
An the basis of the evidence before him, the
investigating o5ce must decide whether to
dismiss the case or to fle the information in
court. &his involves the determination of probable
cause.
&he !ourt has maintained the policy of non.
interference in the determination of the e'istence
of probable cause, provided there is no grave
abuse in the e'ercise of such discretion. &he rule
is based not only upon respect for the
investigatory and prosecutorial powers of
prosecutors but upon practicality as well.
OFFICERS AUT%ORIIED TO CONDUCT
PRELIMINARY INVESTIGATION
%) 3rovincial or city prosecutors and their
assistants#
() <ational and ,egional State 3rosecutors# and
)) Ather o5cers as may be authori6ed by law
(!A;9G9!, 3!BB, Ambudsman)
&heir authority to conduct preliminary
investigation shall include all crimes cogni6able
by the proper court in their respective territorial
+urisdictions.
RESOLUTION OF INVESTIGATION
PROSECUTOR
f the investigating prosecutor fnds cause to hold
the respondent for trial, he shall prepare the
resolution and information. 4e shall certify under
oath in the information that he, or as shown by
the record, an authori6ed o5cer, has personally
e'amined the complainant and his witnesses#
that there is reasonable ground to believe that a
crime has been committed and that the accused
is probably guilty thereof# that the accused was
informed of the complaint and of the evidence
submitted against him# and that he was given an
opportunity to submit controverting evidence.
Atherwise, he shall recommend the dismissal of
the complaint.
0ithin fve (5) days from his resolution, he shall
forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the
Ambudsman or his deputy in cases of o/enses
cogni6able by the Sandiganbayan in the e'ercise
of its original +urisdiction. &hey shall act on the
resolution within ten (%F) days from their receipt
thereof and shall immediately inform the parties
of such action.
<o complaint or information may be fled or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ambudsman or his deputy.
0here such the recommendation of dismissal was
disapproved on the ground that a probable cause
e'ists, the chief prosecutor may fle the
information against the respondent, or direct
another assistant prosecutor or state prosecutor
to do so without conducting another preliminary
investigation.
REVIEW
147
A preliminary investigation falls under the
authority of the state prosecutor who is given by
law the power to direct and control criminal
actions. 4e is, however, sub+ect to the
controlLappeal to the Secretary of :ustice, which
the latter may e'ercise $otu !ro!io or upon
petition of the proper party.
&he Secretary of :ustice e'ercises the power of
direct control and supervision over prosecutors,
and may thus a5rm, nullify, reverse or modify
their rulings. n reviewing resolutions of state
prosecutors, the Secretary of :ustice is not
precluded from considering errors, although
unassigned, for the purpose of determining
whether there is probable cause for fling cases in
court.
An aggrieved party may appeal by fling a verifed
petition for review with the Secretary and by
furnishing copies thereof to the adverse party
and prosecution o5ce issuing the appealed
resolution. &he appeal shall be ta2en within %5
days from receipt of the resolution or of the
denial of the motion for
reconsiderationLreinvestigation if one has been
fled within %5v days from receipt of the assailed
resolution. Anly one motion for reconsideration
shall be allowed. >nless the Secretary directs
otherwise, the appeal S4AGG <A& S&AO the fling
of the corresponding information in court on the
basis of the fnding of probable cause in the
assailed decision. f the Secretary of :ustice
reverses or modifes the resolution of the
provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor
concerned either to fle the corresponding
information without conducting another
preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with
notice to the parties.
W%EN WARRANT OF ARREST MAY ISSUE
.#0 B5 '7e Re:"2(#l T-"#l C2u-'
0ithin ten (%F) days from the fling of the
complaint or information, the +udge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence.
4e may immediately dismiss the case if
the evidence on record clearly fails to
establish probable cause.
f he fnds probable cause, he shall issue a
warrant of arrest, or a commitment order
if the accused has already been arrested
pursuant to a warrant issued by the +udge
who conducted the preliminary
investigation or when the complaint or
information was fled pursuant to section 8
of this ,ule.
n case of doubt on the e'istence of
probable cause, the +udge may order the
prosecutor to present additional evidence
within fve (5) days from notice and the
issue must be resolved by the court within
thirty ()F) days from the fling of the
complaint or information.
.&0 B5 '7e Mu("1"9#l T-"#l C2u-'
0hen re-uired pursuant to the second
paragraph of section % of this ,ule, the 3
of cases falling under the original
+urisdiction of the ;&!s shall be conducted
by the prosecutor. 1he !roce'ure for the
issu"nce of " )"rr"nt of "rrest %+ the
&u'3e sh" %e 3o6erne' %+ !"r"3r"!h (")
of this section (Sec. 5, *ue112).
.10 W7e( $#--#(' 28 #--es' (2' (e1ess#-5
A warrant of arrest shall not issue if the
accused is already under detention
pursuant to a warrant issued by the
;unicipal &rial !ourt in accordance with
paragraph (b) of this section, or if the
complaint or information was fled
pursuant to section 8 of this ,ule or is for
an o/ense penali6ed by fne only. &he
court shall then proceed in the e'ercise of
its original +urisdiction (Sec. 5, "s
"$en'e' %+ A, .5/=/2</SC).
CASES NOT RE<UIRING A PRELIMINARY
INVESTIGATION
%) !ases in which the imposable penalty ?A9S
<A& 9S!99? four (*) years, two (() months
and one (%) day
() 0hen the accused has undergone in-uest
proceeding.

REMEDIES OF ACCUSED IF T%ERE WAS NO
PRELIMINARY INVESTIGATION
,efuse to enter a plea upon arraignment and
ob+ect to further proceedings upon such
grounds
&o hold in abeyance the proceedings and
orderLinsist the prosecutor to hold preliminary
investigation.
,aised the lac2 of 3 as an error in appeal
f the case has been conducted, the accused may
within 5 days from the time he learns of its fling
as2 for a preliminary investigation. &he fve.day
period to fle the motion for preliminary
investigation is mandatory, and an accused is
entitled to as2 for preliminary investigation by
148
fling the motion within the said period. &he
failure to fle the motion within the fve.day
period amounts to a waiver of the right to as2 for
preliminary investigation. Apart from such waiver,
posting bail without previously or simultaneously
demanding for a preliminary investigation
+ustifes denial of the motion for investigation.
IN<UEST
t is a summary investigation conducted by a
public prosecutor in criminal cases involving
persons arrested and detained without the
beneft of a warrant of arrest issued by the court
for the purpose of determining whether or not
said persons should remain under custody and
correspondingly be charged in court. Such
proceedings must terminate within the period
prescribed under Art. 125 of the *e6ise' Pen"
Co'e.
,e-uired where the crime is punishable by at
least * years, ( months and % day.
ARREST .RULE 1130
Arrest is the ta2ing of a person into custody in
order that he may be bound to answer for the
commission of an o/ense.
%OW AN ARREST MADEK
%) by an actual restraint of a person to be
arrested, A,
() by his submission to the custody of the
person ma2ing the arrest.
<o violence or unnecessary force shall he
used in ma2ing an arrest. &he person
arrested shall not be sub+ect to a greater
restraint than is necessary for his
detention.
ARREST WIT%OUT WARRANT/W%EN
LAWFUL
1) 0hen, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
o/ense#
2) 0hen an o/ense has +ust been committed
and he h"s !ro%"%e c"use to %eie6e %"se'
on his !erson" :no)e'3e of f"cts or
circu$st"nces th"t the !erson to %e "rreste'
h"s co$$itte' the cri$e;
3) 0hen the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving fnal +udgment or
is temporarily confned while his case is
pending, or has escaped while being
transferred from one confnement to another.
9) 0here a person who has been lawfully
arrested escape or is rescued#
5) 0hen the bondsmen arrests a prisoner out on
bail for the purpose of bringing him to court#
<) 0here the accused attempts to leave the
country without the permission of the court.
MET%OD OF ARREST
Me'72! 28 #--es' &5 2N1e- &5 )"-'ue 28
$#--#('
&he o5cer shall inform the person to be arrested
of the cause of the arrest and the fact that a
warrant has been issued for his arrest, e'cept
when he Iees or forcibly resists before the o5cer
has opportunity to so inform him, or when the
giving of such information will imperil the arrest.
&he o5cer need not have the warrant in his
possession at the time of the arrest but after the
arrest, if the person arrested so re-uires, the
warrant shall be shown to him as soon as
practicable.
Me'72! 28 #--es' &5 2N1e- $"'72u'
$#--#('
&he o5cer shall inform the person to be arrested
of his authority and the cause of the arrest,
unless the latter is either engaged in the
commission of an o/ense, is pursued immediately
after its commission, has escaped, Iees or
forcibly resists before the o5cer has opportunity
to so inform him, or when the giving of such
information will imperil the arrest.
Me'72! 28 #--es' &5 9-")#'e 9e-s2(
A private person shall inform the person to be
arrested of the intention to arrest him and cause
of the arrest, unless the latter is either engaged
in the commission of an o/ense, is pursued
immediately after its commission, or has
escaped, Iees or forcibly resists before the
person ma2ing the arrest has opportunity to so
inform him, or when the giving of such
information will imperil the arrest.
RE<UISITES OF A VALID WARRANT OF
ARREST
ReFu"s"'es 82- #--es' $#--#(' "ssue! &5 #
RTC ;u!:e under Sec. 5, *ue 1120
%) 0ithin %F days from the fling of the
complaint or information
149
() &he +udge shall personally evaluate the
resolution of the prosecutor and its
supporting evidence.
)) f he fnds probable cause, he shall issue a
warrant of arrest
*) n case of doubt on the e'istence of
probable cause
a. &he +udge may order the
prosecutor to present additional
evidence within 5 days from notice#
and
b. &he issue must be resolved by the
court within )F days from the fling
of the complaint of information.
ReFu"s"'es 82- "ssu"(: se#-17 $#--#(' under
Sec. 9, *ue 12<0
%) t must be issued upon probable cause in
connection with one specifc o/ense#
() &he probable cause must be determined
by the +udge himself and not by the
applicant or any other person#
)) n the determination of probable cause,
the +udge must e'amine under oath or
a5rmation, the complainant and the
witness he may produce# and
*) &he warrant issued must particularly
describe the person to be arrested in
connection with a specifc o/ense or
crime.
DETERMINATION OF PROBABLE CAUSE FOR
ISSUANCE OF WARRANT OF ARREST
t is the +udge alone who determines the probable
cause for the issuance of warrant of arrest. t is
not for the provincial fscal or prosecutor to
ascertain.
DISTINGUIS% PROBABLE CAUSE OF FISCAL
FROM T%AT OF A ,UDGE
&he 'eter$in"tion %+ the !rosecutor of probable
cause is for the purpose of either fling an
information in court or dismissing the charges
against the respondent, which is an e'ecutive
function.
&he 'eter$in"tion %+ the &u'3e of probable cause
begins only after the prosecutor has fled the
information in court and the latter@s
determination of probable cause is for the
purpose of issuing an arrest warrant against the
accused, which is +udicial function. . A +udge
cannot be compelled to issue a warrant of arrest
if he or she believes honestly that there is no
probable cause for doing so.
3robable cause to hold a person for trial refers to
the fnding of the investigating prosecutor after
the conduct of a preliminary investigation, that
there is su5cient ground to hold a well.founded
belief that a crime has been committed and that
the respondent is probably guilty thereof and
should be held for trial. $ased on such fnding,
the investigating prosecutor fles the
corresponding complaint or information in the
competent court against the accused.
BAIL .RULE 1140
NATURE
All persons, e'cept those charged with o/enses
punishable by reclusion perpetua when evidence
of guilt is strong, shall before conviction, be
bailable by su5cient sureties, or be released on
recogni6ance as may be provided by law. &he
right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is
suspended. 9'cessive bail shall not be re-uired
(Sec. 13, Art. III, 1he Constitution).
$ail is the security re-uired by the court and
given by the accused to ensure that the accused
appear before the proper court at the scheduled
time and place to answer the charges brought
against him. t is awarded to the accused to
honor the presumption of innocence until his guilt
is proven beyond reasonable doubt, and to
enable him to prepare his defense without being
sub+ect to punishment prior to conviction. ts
main purpose is to relieve an accused from the
rigors of imprisonment until his conviction and
secure his appearance at the trial.
&he person see2ing provisional release need not
wait for a formal complaint or information to be
fled against him as it is available to all persons
where the o/ense is bailable, so long as the
applicant is in the custody of the law.
+"(!s 28 &#"lB
a) C2-92-#'e &2(! U one issued by a
corporation licensed to provide bail
subscribed +ointly by the accused and an
o5cer duly authori6ed by its board of
directors.
b) P-29e-'5 &2(! U an underta2ing
constituted as a lien on the real property
given as security for the amount of the
bond.
c) Re12:("O#(1e U an obligation of record
entered into usually by the responsible
members of the community before some
court or magistrate duly authori6ed to
150
ta2e it, with the condition to do some
particular act, the most usual act being to
assure the appearance of the accused for
trial.
d) C#s7 !e92s"' U the money deposited by
the accused or any person acting on his
behalf, with the nearest collector of
internal revenue, or provincial, city or
municipal treasurer. !onsidered as bail, it
may be applied to the payment of any
fees and costs, and the e'cess, if any,
shall be returned to the accused or to
whoever made the deposit.
W%EN A MATTER OF RIG%TJ EXCEPTIONS
All persons in custody shall be admitted to bail as
a matter of right, with su5cient sureties, or
released on recogni6ance"
a) before or after conviction by the ;&!, and
b) before conviction by the ,&! of an o/ense
<A& punishable by death, reclusion
perpetua, or life imprisonment and the
evidence of guilt is strong.
f bail can be granted in deportation cases and
e'tradition cases# both are administrative
proceedings where the innocence or guilt of the
person detained is not in issue.
$ail is a matter of right before fnal conviction,
but the rule is not absolute. &he e'ception is
when a person is charged with a capital o/ense
when the evidence of guilt is strong, or when the
o/ense for which on is charged is punishable by
reclusion perpetua. &he e'ception to this rule,
however, is even if a person is charged with a
capital o/ense where the evidence of guilt is
strong, if the accused has failing health, hence,
for humanitarian reasons, he may be admitted to
bail, but that is discretionary on the part of the
court.
W%EN A MATTER OF DISCRETION
%) $efore conviction, in case of o/enses
punishable by reclusion perpetua, life
imprisonment or death#
f it is determined that it is <A& strong,
then bail is a matter of right. &here is no
more discretion of the court in denying the
bail, the moment there is a determination
that the evidence of guilt is not strong.
() After conviction by the ,&! of a non.capital
o/ense.
&he application for bail may be fled and acted
upon by the trial court despite the fling of a
notice of appeal, provided it has not transmitted
the original record to the appellate court.
4owever, if the decision of the trial court
convicting the accused changed the nature of the
o/ense from non.bailable to bailable, the
application for bail can only be fled with and
resolved by the appellate court.
f the penalty imposed by the trial court is
imprisonment e'ceeding si' (8) years, the
accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution,
with notice to the accused, of the following or
other similar circumstances"
a) &hat he is a recidivist, -uasi.recidivist, or
habitual delin-uent, or has committed the
crime aggravated by the circumstance of
reiteration#
b) &hat he has previously escaped from legal
confnement, evaded sentence, or violated
the conditions of his bail without valid
+ustifcation#
c) &hat he committed the o/ense while
under probation, parole, or under
conditional pardon#
d) &hat the circumstances of his case
indicate the probability of Iight if released
on bail# or
e) &hat there is undue ris2 that he may
commit another crime during the
pendency of the appeal.
0here the grant of bail is a matter of discretion,
or the accused see2s to be released on
recogni6ance, the application may only be fled in
the court where the case is pending, whether on
preliminary investigation, trial, or on appeal.
%EARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES
GUIDELINES IN FIXING AMOUNT OF BAIL
A bail application in capital o/ense does not only
involve the right of the accused to temporary
liberty, but li2ewise the right of the State to
protect the people and the peace of the
community from dangerous elements. &he
prosecution must be given ample opportunity to
show that the evidence of guilt is strong, because
it is on the basis of such evidence that +udicial
discretion is e'ercised in determining whether the
evidence of guilt is strong is a matter of +udicial
discretion.
A hearing is absolutely indispensable. n receiving
evidence on bail, while a court is not re-uired to
try the merits of the case, he must nevertheless
151
conduct a summary hearing to determine the
weight of the evidence for purposes of the bail.
A +udge should not hear a petition for bail in
capital o/enses on the same day that the petition
was fled. 4e should give the prosecution a
reasonable time within which to oppose the
same. <either is he supposed to grant bail solely
on the belief that the accused will not Iee during
the pendency of the case by reason of the fact
that he had even voluntarily surrendered.
Voluntary surrender is merely a mitigating
circumstance in decreasing the penalty but is not
a ground for granting bail to an accused charged
with a capital o/ense.
a) =inancial ability of the accused to give
bail#
b) <ature and circumstances of the o/ense#
c) 3enalty for the o/ense charged#
d) !haracter and reputation of the accused#
e) Age and health of the accused#
f) 0eight of the evidence against the
accused#
g) 3robability of the accused appearing at
the trial#
h) =orfeiture of other bail#
i) &he fact that the accused was a fugitive
from +ustice when arrested# and
+) 3endency of other cases where the
accused is on bail.
9'cessive bail shall not be re-uired.
BAIL W%EN NOT RE<UIRED
%) 0hen the o/ense charged is a violation of an
ordinance, light felony or a criminal o/ense
the imposable penalty does not e'ceed 8
months of imprisonment andLor fne of
3(,FFF.FF under ,A 8F)8.
() 0here the accused has applied for probation
and before the same has been resolved but
no bail was fled or the accused is incapable
of fling one, in which case he may be
released on recogni6ance.
)) n case of youthful o/ender held for physical
or mental e'amination, trial or appeal, if
unable to furnish bail and under the
circumstances under P4 <.3, "s "$en'e'.
*) 0hen the law or these ,ules so provide.
5) 0hen a person has been in custody for a
period e-ual to or more than the possible
ma'imum imprisonment prescribed for the
o/ense charged, he shall be released
immediately, without pre+udice to the
continuation of the trial or the proceedings on
appeal.
8) A person accused of an o/ense with a
ma'imum penalty of destierro, he shall be
released after )F days of preventive
imprisonment.
INCREASE OR REDUCTION OF BAIL
After the accused is admitted to bail, the court
may, upon good cause, either increase or reduce
its amount.
0hen increased, the accused may be committed
to custody if he does not give bail in the
increased amount within a reasonable period.
An accused held to answer a criminal charge, who
is released without bail upon fling of the
complaint or information, may, at any subse-uent
stage of the proceedings whenever a strong
showing of guilt appears to the court, be re-uired
to give bail in the amount f'ed, or in lieu thereof,
committed to custody.
FORFEITURE AND CANCELLATION OF BAIL
0hen the presence of the accused is re-uired, his
bondsmen shall be notifed to produce him on a
given date and time. f the accused fails to
appear, his bail shall be declared forfeited and
the bondsmen given thirty ()F) days within which
to produce their principal and to show cause why
no +udgment should be rendered against them for
the amount of their bail. 0ithin the said period,
the bondsmen must"
a) produce the body of their principal or give
the reason for his non.production# and
b) e'plain why the accused did not appear
before the court when frst re-uired to do
so.
=ailing in these two re-uisites, a +udgment shall
be rendered against the bondsmen, +ointly and
severally, for the amount of the bail. &he court
shall not reduce or otherwise mitigate the liability
of the bondsmen, unless the accused has been
surrendered or is ac-uitted.
>pon application of the bondsmen, with due
notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof
of his death.
&he bail shall be deemed automatically cancelled
upon ac-uittal of the accused, dismissal of the
case, or e'ecution of the +udgment of conviction.
n all instances, the cancellation shall be without
pre+udice to any liability on the bail.
APPLICATION NOT A BAR TO OB,ECTIONS
IN ILLEGAL ARREST/ LAC+ OF OR
152
IRREGULAR PRELIMINARY INVESTIGATION
&he posting of the bail does not constitute a
waiver of any -uestion on the irregularity
attending the arrest of person. 4e can still
-uestion the same before arraignment,
otherwise, the right to -uestion it is deemed
waived.
An application for or admission to bail shall not
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or
-uestioning the absence of a preliminary
investigation of the charge against him, provided
that he raises them before entering his plea.
&he arraignment of an accused is not a
prere-uisite to the conduct of hearings on his
petition for bail. A person is allowed to petition for
bail as soon as he is deprived of his liberty by
virtue of his arrest or voluntary surrender. $ail
should be granted before arraignment# otherwise
the accused may be precluded from fling a
motion to -uash.
%OLD DEPARTURE ORDER P BUREAU OF
IMMIGRATION WATC%LIST
Supreme !ourt Cir. -o. 39/9; '"te' 2une 19,
199; limits the authority to issue hold departure
orders to the ,&!s in criminal cases within their
e'clusive +urisdiction. !onse-uently, ;&! +udges
have no authority to issue hold.departure orders#
neither does it has authority to cancel one which
he issued.
A court has the power to prohibit a person
admitted to bail from leaving the 3hilippines. &his
is necessary conse-uence of the nature and
function of a bail bond. 0here it appears that the
accused had the propensity to evade or disobey
lawful orders, the issuance of a hold departure
order is warranted.
T7e se1-e'#-5 28 ;us'"1e #5 "ssue #
$#'17l"s' 2-!e- "( '7e 82ll2$"(:
1"-1us'#(1esB
1) Against the accused, irrespective of
nationality, in criminal cases pending trial
before the ,&!#
2) Against the respondent, irrespective of
nationality, in criminal cases pending
preliminary investigation, petition for
review, or motion for reconsideration
before ?A: or any of its provincial or city
o5ces.
3) Against any person, either motu proprio,
or upon re-uest of any government
agency, including commissions, tas2
forces or similar entities created by the
o5ce of the 3resident, pursuant to Anti
D1r"@c:in3 in Persons Acts of 2..3,
andLor in connection with any
investigation being conducted by it, or in
the interest of national security, public
safety of public health.
RIG%TS OF T%E ACCUSED .RULE1160
RIG%TS OF ACCUSED AT T%E TRIAL
%) &o be 3,9S>;9? <<A!9<& until the contrary
is proved beyond reasonable doubt.
() &o be <=A,;9? A= &49 <A&>,9 A<? !A>S9
A= &49 A!!>SA&A< against him.
)) &o be 3,9S9<& A<? ?9=9<? < 39,SA< A<?
$O !A><S9G A& 9V9,O S&AB9 A= &49
3,A!99?<BS, from arraignment to
promulgation of the +udgment.
*) &o &9S&=O AS A 0&<9SS < 4S A0< $94AG=
but sub+ect to cross.e'amination on matters
covered by direct e'amination. 4is silence
shall not in any manner pre+udice him#
5) &o be 9S9;3& =,A; $9<B !A;39GG9? &A
$9 A 0&<9SS ABA<S& 4;S9G=.
8) &o !A<=,A<& A<? !,ASS.9SA;<9 &49
0&<9SS9S against him at the trial.
J) &o have !A;3>GSA,O 3,A!9SS issued to
secure the attendance of witnesses and
production of other evidence in his behalf.
K) &o have S399?O, ;3A,&AG A<? 3>$G!
&,AG.
E) &o appeal in all cases allowed and in the
manner prescribed by law.
RIG%TS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
%) &o be informed of his rights to remain silent
and to have competent and independent
counsel preferably of his own choice. f the
person cannot a/ord the services of counsel,
he must be provided with one. &hese rights
cannot be waived e'cept in writing and in the
presence of counsel#
() <o torture, force, violence, intimidation or any
other means which vitiate the free will shall
be used against him. Secret detention places,
solitary, incommunicado, or other similar
forms of detention are prohibited#
)) Any confession or admission in violation of
Self.ncrimination !lause shall be inadmissible
in evidence against him#
*) &he law shall provide for penal and civil
sanctions as well as compensation to aid
153
rehabilitation of victims of torture or similar
practice, and their families.
UNDER RA 7C34
&he following are the rights of persons arrested,
detained or under custodial investigation"
%) &o be assisted by counsel at all times#
() Shall be informed , in a language 2nown to
and understood by him, of his right to
remain silent and to have competent and
independent counsel, preferably of his
own choice, who shall at all times be
allowed to confer privately with him#
)) &he custodial investigation report shall be
read and ade-uately e'plained to him by
his counsel or by the assisting counsel in
the language or dialect 2nown him#
otherwise, such investigation report shall
be null and void#
*) Any e'tra+udicial confession made by him
shall be in writing and signed in the
presence of his counsel or upon a valid
waiver, and in the presence of his any
immediate family members, otherwise,
such e'tra+udicial confession shall be
inadmissible in any proceeding#
5) Any waiver under the provisions of Art.
125 of the *PC or under custodial
investigation, shall be in writing signed by
such person in the presence of his
counsel# otherwise such waiver shall be
null and void and of no e/ect#
8) Shall be allowed visits by his or
conferences with any member of his
immediate family, or any medical doctor
or priest or religious minister chosen by
him or by his counsel, or by any national
<BA duly accredited by the A5ce of the
3resident.
T%REE RIG%TS ARE MADE AVAILABLE
BY (7+. 12(1)?
a) &he right to remain silent
>nder the right against self.
incrimination in Sec. 1;, only an
accused has the absolute right to
remain silent. A person who is not an
accused may assume the stance of
silence only when as2ed an
incriminatory -uestion.
>nder Sec. 12, however, a person
under investigation has the right to
refuse to answer any -uestion. 4is
silence, moreover, may not be used
against him.
b) &he right to counsel U 9'ample of those
who are not impartial counsel are"
%) Special counsel, private or public
prosecutor, counsel of the police, or a
municipal attorney whose interest is
adverse to that of the accused#
() a mayor, unless the accused
approaches him as counselor or
adviser#
)) a barangay captain#
*) any other whose interest may be
adverse to that of the accused.
c) &he right to be informed of his rights U
the right guaranteed here is more than what
is shown in television shows where the police
routinely reads out the rights from a note
card# he must also e'plain their e/ects in
practical terms.
CUSTODIAL INVESTIGATION
&he right to custodial investigation begins only
when the investigation is no longer a general
in-uiry into an unsolved crime but has begun to
focus on a particular suspect, the suspect has
been ta2en into police custody, the police carry
out a process of interrogations that lends itself to
eliciting incriminating statements.
t has e'tended to situations in which an
individual has not been formally arrested but has
merely been MinvitedN for -uestioning.
ARRAIGNMENT AND PLEA .RULE 11@0
t is the mode of implementing the constitutional
right to be informed of the nature of the
accusation against him, and to f' the identity of
the accused.
SOME RULES ON ARRAIGNMENTB
a) &rial in absentia is allowed only after
arraignment#
b) :udgment is generally void if the accused
has not been arraigned#
c) &here can be no arraignment in absentia#
d) f the accused went to trial without
arraignment, but his counsel had the
opportunity to cross.e'amine the
witnesses of the prosecution and after
prosecution, he was arraigned, the defect
was cured.
ARRAIGNMENT AND PLEA/ %OW MADE
a) &he accused must be arraigned before the
court where the complaint or information was
154
fled or assigned for trial. &he arraignment
shall be made in open court by the +udge or
cler2 by furnishing the accused with a copy of
the complaint or information, reading the
same in the language or dialect 2nown to him,
and as2ing him whether he pleads guilty or
not guilty.
b) 0hen the accused is under preventive
detention, his case shall be raXed and its
records transmitted to the +udge to whom the
case was raXed within three ()) days from
the fling of the information or complaint. &he
accused shall be arraigned within ten (%F)
days from the date of the raXe. &he pre.trial
conference of his case shall be held within ten
(%F) days after arraignment.
c) &he private o/ended party shall be re-uired
to appear at the arraignment for purposes of
plea.bargaining, determination of civil liability,
and other matters re-uiring his presence. n
case of failure of the o/ended party to appear
despite due notice, the court may allow the
accused to enter a plea of guilty to a lesser
o/ense which is necessarily included in the
o/ense charged with the conformity of the
trial prosecutor alone.
d) &he arraignment shall be held within thirty
()F) days from the date the court ac-uires
+urisdiction over the person of the accused.
&he time of the pendency of a motion to
-uash or for a bill of particulars or other
causes +ustifying suspension of the
arraignment shall be e'cluded in computing
the period.
W%EN S%OULD PLEA OF NOT GUILTY BE
ENTERED
a) &he accused so pleaded#
b) 0hen he refuses to plead#
c) 0here in admitting the act charged, he
sets up matters of defense or with a lawful
+ustifcation#
d) 0hen he enters a conditional plea of guilt#
e) 0here, after a plea of guilt, he introduces
evidence of self.defense or other
e'culpatory circumstances # and
f) 0hen the plea is indefnite or ambiguous.
W%EN MAY AN ACCUSED ENTER A PLEA OF
GUILTY TO A LESSER OFFENSE
A& A,,AB<;9<&, the accused, with the consent
of the o/ended party and the prosecutor, may be
allowed by the trial court to plead guilty to a
lesser o/ense which is necessarily included in the
o/ense charged.
A=&9, A,,AB<;9<& $>& $9=A,9 &,AG, the
accused may still be allowed to plead guilty to
said lesser o/ense after withdrawing his plea of
not guilty. <o amendment of the complaint or
information is necessary.
t has been held that the accused can still plead
guilty to a lesser o/ense after the prosecution
has rested.
f accused entered a plea to a lesser o/ense
without the consent of the o/ended party and the
prosecutor and he was convicted, his subse-uent
conviction in the crime charged would not place
him in double +eopardy.
ACCUSED PLEAD GUILTY TO CAPITAL
OFFENSE/ W%AT T%E COURT S%OULD DO
&he court should accomplish three ()) things#
%) t should conduct searching in-uiry into
the voluntariness and full comprehension
of the conse-uences of the plea#
() t should re-uire the prosecution to prove
the guilt of the accused and the precise
degree of culpability# and
)) t should in-uire whether or not the
accused wishes to present evidence on his
behalf and allow him if he so desires.
SEARC%ING IN<UIRY
Searching -uestion means more than informing
cursorily the accused that he faces a +ail term. t
also includes the e'act lengthy of imprisonment
under the law and the certainty that he will serve
at the national penitentiary or a penal colony.
t is intended to undermine the degree of
culpability of the accused in order that the court
may be guided in determining the proper penalty.
IMPROVIDENT PLEA
t is a plea without information as to all the
circumstances a/ecting it# based upon a
mista2en assumption or misleading
information or advise.
!onviction based on an improvident plea of
guilty may set aside only when such plea is
the sole basis of the +udgment.
At any time before the +udgment of conviction
becomes fnal, the court may permit the
withdrawal of an improvident plea of guilty, to
be substituted by a plea of not guilty, even
after +udgment has been promulgated but
before the same becomes fnal.
A plea of not guilty can li2ewise be withdrawn
so that the accused may instead plead guilty
155
to the same o/ense, but for obvious reasons,
this must be done before promulgation of
+udgment.
0hen the accused pleads guilty but presents
e'culpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty
shall be entered for him.
GROUNDS FOR SUSPENSION OF
ARRAIGNMENT
>pon motion by the proper party, the
arraignment shall be suspended in the following
cases"
%) &he accused appears to be su/ering from
an unsound mental condition which
e/ectively renders him unable to fully
understand the charge against him and to
plead intelligently thereto. n such case,
the court shall order his mental
e'amination and, if necessary, his
confnement for such purpose.
() &here e'ists a pre+udicial -uestion# and
)) A petition for review of the resolution of
the prosecutor is pending at either the ?A:
or the A5ce of the 3resident# provided
that the period of suspension shall not
e'ceed si'ty (8F) days counted from the
fling of the petition with the reviewing
o5ce.
MOTION TO <UAS% .RULE 1170
A motion to -uash is a hypothetical admission of
the facts alleged in the information, hence the
court in resolving the motion cannot consider
facts contrary to those alleged in the information
or which do not appear on the face of the
information, e'cept those admitted by the
prosecution.
&he motion to -uash must be fled before the
arraignment. &hereafter, no motion to -uash can
be entertained by the court, the only e'ceptions
being those in Sec. 9 which adopts the omnibus
motion rule, sub+ect to said e'ceptions. Sec. 3
has been amended to separately refer to lac2 to
+urisdiction over the o/ense, not over the person
of the accused since, by fling a motion to -uash
on other grounds, the accused has submitted
himself to the +urisdiction of the court.
GROUNDS
%) &hat the facts charged do not constitute an
o/ense#
() &hat the court trying the case has no
+urisdiction over the o/ense charged#
)) &hat the court trying the case has no
+urisdiction over the person of the accused#
*) &hat the o5cer who fled the information had
no authority to do so#
5) &hat it does not conform substantially to the
prescribed form#
8) &hat more than one o/ense is charged e'cept
when a single punishment for various o/enses
is prescribed by law#
J) &hat the criminal action or liability has been
e'tinguished .
a. $y the death of the convict, as to the
personal penalties# as to pecuniary
penalties, liability therefor is
e'tinguished only when the death of
the o/ender occurs before fnal
+udgment.
b. $y service of the sentence#
c. $y amnesty, which completely
e'tinguishes the penalty and all its
e/ects#
d. $y absolute pardon#
e. $y prescription of the crime#
f. $y prescription of the penalty#
g. $y the marriage of the o/ended
woman in
i. Seduction
ii. abduction or
iii. acts of lasciviousness (Art. 399
*PC)
K) &hat it contains averments which, if true,
would constitute a legal e'cuse or
+ustifcation# and
E) &hat the accused has been previously
convicted or ac-uitted of the o/ense charged,
or the case against him was dismissed or
otherwise terminated without his e'press
consent.
Brounds that are not waived even if not alleged"
a) =ailure to charge an o/ense#
b) Gac2 of +urisdiction#
c) 9'tinction of criminal action or liability#
d) ?ouble +eopardy.
MOTION TO <UAS% DEMURER TO EVIDENCE
,ule %%J Section (), ,ule %%E
>hen ?e' At any time before accused enters plea After the prosecution rests its case
Jroun's a) &hat the facts charged do not constitute
an o/ense#
b) &hat the court trying the case has no
nsu5ciency of evidence
156
+urisdiction over the o/ense charged#
c) &hat the court trying the case has no
+urisdiction over the person of the
accused#
d) &hat the o5cer who fled the information
had no authority to do so#
e) &hat it does not conform substantially to
the prescribed form#
f) &hat more than one o/ense is charged
e'cept when a single punishment for
various o/enses is prescribed by law#
g) &hat the criminal action or liability has
been e'tinguished#
h) &hat it contains averments which, if true,
would constitute a legal e'cuse or
+ustifcation# and
i) &hat the accused has been previously
convicted or ac-uitted of the o/ense
charged, or the case against him was
dismissed or otherwise terminated
without his e'press consent.
H7ect if
3r"nte'
f the motion to -uash is sustained, the
court may order that another complaint or
information be fled e'cept as provided in
section < of this rule.
f the order is made, the accused, if in
custody, shall not be discharged
unless admitted to bail.
f no order is made or if having been
made, no new information is fled
within the time specifed in the order
or within such further time as the
court may allow for good cause, the
accused, if in custody, shall be
discharged unless he is also in custody
of another charge.
&he remedy of prosecution is to amend
the information to correct the defects
thereof, e'cept on the grounds of (3) "n'
(&); of the prosecution may appeal the
-uashal of information or complaint
f leave of court is granted,
the accused shall fle the
demurrer to evidence within
a non.e'tendible period of
ten (%F) days from notice.
&he prosecution may
oppose the demurrer to
evidence within %F days
from receipt of the motion.
H7ect if
'enie'
&he usual course to ta2e is for the accused to
proceed with trial, and in case of conviction,
to appeal therefrom and assign as error the
denial of the motion to -uash,
An accused who fles a
demurrer to evidence with
leave of court does not lose the
right to present evidence in the
event his motion is denied.
An the other hand, if he fles
the demurrer without leave of
court and the same is denied,
he loses the right to present
evidence, in which event the
case will be deemed submitted
for decision.
*e$e'ies if
'enie'
&he order denying the motion to -uash is
interlocutory and therefore not appealable,
nor can it be the sub+ect of a petition for
certiorari.
&he order denying the motion for
leave of court to fle demurrer to
evidence or to demur itself shall
not be reviewable by appeal or
certiorari before +udgment.
157
A special civil action may lie against an order
of denial of a motion to -uash, as an
e'ception to the general rule, in any of the
following instances"
") 0here there is necessity to a/ord
protection to the constitutional rights
of the accused#
%) 0hen necessary for the orderly
administration of +ustice or to avoid
oppression or multiplicity of actions#
c) 0here there is pre+udicial -uestion
which is su% &u'ice;
') 0hen the acts of the o5cer are
without or in e'cess of authority#
e) 0here the prosecution is under an
invalid law, ordinance or regulation#
f) 0hen double +eopardy is clearly
apparent#
3) 0here the court has no +urisdiction
over the o/ense#
h) 0here it is a case of persecution rather
than prosecution#
i) 0here the charges are manifestly false
and motivated by the lust for
vengeance#
&) 0hen there is clearly no prima facie
case against the accused# and
:) &o avoid multiplicity of actions.
EFFECTS OF SUSTAINING T%E MOTION TO
<UAS%
f the motion to -uash is sustained, the court may
order that another complaint or information be
fled e'cept as provided in section < of this rue.
a) f the order is made, the accused, if in
custody, shall not be discharged unless
admitted to bail.
b) f no order is made or if having been
made, no new information is fled within
the time specifed in the order or within
such further time as the court may allow
for good cause, the accused, if in custody,
shall be discharged unless he is also in
custody of another charge.
EXCEPTION TO T%E RULE T%AT SUSTAINING
T%E MOTION IS NOT A BAR TO ANOT%ER
PROSECUTION
%) An order sustaining the motion to -uash is not
a bar to another prosecution for the same
o/ense unless the motion was based on the
grounds specifed in Sec. 3(3) "n' (i) 7 that
the criminal action or liability has been
e'tinguished and that the accused has been
previously convicted or in +eopardy of being
convicted, or ac-uitted of the o/ense
charged.
() An order denying a motion to -uash is
interlocutory and not appealable and
generally, such denial cannot be controlled by
certiorari# and the denial of a motion to -uash
grounded on double +eopardy is not
controllable by mandamus
DOUBLE ,EOPARDY
<o person shall be twice put in +eopardy of
punishment for the same o/ense. f an act is
punished by a law and an ordinance, conviction
or ac-uittal under either shall constitute a bar to
another prosecution for the same act (Sec. 21,
Art. III, Constitution).
T7e -eFu"-ee('s 28 !2u&le ;e29#-!5 #-eB
a) Valid indictment#
b) !ompetent court#
c) Valid arraignment#
d) Valid plea entered#
e) !ase is dismissed or terminated without
the e'press consent of the accused.
0hen an accused has been convicted or
ac-uitted, or the case against him dismissed or
otherwise terminated 0&4A>& 4S 9S3,9SS
!A<S9<& by a court of competent +urisdiction,
upon a valid complaint or information or other
formal charge su5cient in form and substance to
sustain a conviction and after the accused had
pleaded to the charge, the conviction or ac-uittal
of the accused or the dismissal of the case shall
be a bar to another prosecution for the o/ense
charged, or for any attempt to commit the same
or frustration thereof, or for any o/ense which
necessarily includes or is necessarily included in
the o/ense charged in the former complaint or
information.
4owever, the conviction of the accused shall not
be a bar to another prosecution for an o/ense
which necessarily includes the o/ense charged in
the former complaint or information under any of
the following instances"
%) the graver o/ense developed due to
supervening facts arising from the same
act or omission constituting the former
charge#
() the facts constituting the graver charge
became 2nown or were discovered only
after a plea was entered in the former
complaint or information# or
)) the plea of guilty to the lesser o/ense was
made without the consent of the
prosecutor and of the o/ended party
158
e'cept as provided in section %(f) of ,ule
%%8.
PROVISIONAL DISMISSAL
%) A case shall not be provisionally dismissed
e'cept with the e'press consent of the
accused and with notice to the o/ended party.
() &he provisional dismissal of o/enses
punishable by imprisonment not e'ceeding
si' (8) years or a fne of any amount, or both,
shall become permanent one (%) year after
issuance of the order without the case having
been revived.
)) 0ith respect to o/enses punishable by
imprisonment of more than si' (8) years, their
provisional dismissal shall become permanent
two (() years after issuance of the order
without the case having been revived.
*) &he r"ison '8etre for the re-uirement of the
e'press consent of the accused to a
provisional dismissal of a criminal case is to
bar him from subse-uently asserting that the
revival of the criminal case will place him in
double +eopardy for the same o/ense or for an
o/ense necessarily included therein.
PRE*TRIAL .RULE 11C0
&he court shall, after arraignment and within
thirty ()F) days from the date the court ac-uires
+urisdiction over the person of the accused,
unless a shorter period is, order a pre.trial
conference. ts main ob+ective is to achieve an
e'peditious resolution of the case.
MATTERS TO BE CONSIDERED DURING PRE
TRIAL
%) plea bargaining#
() stipulation of facts#
)) mar2ing for identifcation of evidence of
the parties#
*) waiver of ob+ections to admissibility of
evidence#
5) modifcation of the order of trial if the
accused admits the charge but interposes
a lawful defense# and
8) such matters as will promote a fair and
e'peditious trial of the criminal and civil
aspects of the
W%AT T%E COURT S%OULD DO W%EN
PROSECUTION AND OFFENDED PARTY
AGREE TO T%E PLEA OFFERED BY T%E
ACCUSED
&he agreements shall be approved by the court.
3rovided that the agreement on the plea of the
accused should be to a lesser o/ense necessarily
included in the o/ense charged.
PRE*TRIAL AGREEMENT
All agreements or admissions made or entered
during the pre.trial conference shall be reduced in
writing and signed by the accused and counsel#
otherwise, they cannot be used against the
accused.
NON*APPEARANCE DURING PRE*TRIAL
f the counsel for the accused or the prosecutor
does not appear at the pre.trial conference and
does not o/er an acceptable e'cuse for his lac2
of cooperation, the court may impose proper
sanctions or penalties.
PRE*TRIAL ORDER
After the pre.trial conference, the court shall
issue an order reciting the actions ta2en, the
facts stipulated, and evidence mar2ed. Such
order shall bind the parties, limit the trial to
matters not disposed of, and control the course of
the action during the trial, unless modifed by the
court to prevent manifest in+ustice.
REFERRAL OF SOME CASES FOR COURT
ANNEXED AND MEDIATION AND ,UDICIAL
DISPUTE RESOLUTION .AM 11*1*@*SC
P%IL,A0
CONCEPT OF COURT DIVERSION OF
PENDING CASES
&he diversion of pending court cases both to
!ourt.Anne'ed ;ediation (!A;) and to :udicial
?ispute ,esolution (:?,) is plainly intended to put
an end to pending litigation through a
compromise agreement of the parties and
thereby help solve the ever.pressing problem of
court doc2et congestion.
!ases that may be referred"
%) All civil cases and the civil liability of
criminal cases covered by the ,ule on
Summary 3rocedure, including the civil
liability for violation of $.3. ((, e'cept
those which by law may not be
compromised#
() Special proceedings for the settlement of
estates#
)) All civil and criminal cases fled with a
certifcate to fle action issued by the
3unong $arangay or the 3ang2at ng
159
&agapag2asundo under the ,evised
Tatarungang 3ambarangay Gaw#
*) &he civil aspect of Huasi.A/enses under
&itle %* of the ,evised 3enal !ode#
5) &he civil aspect of less grave felonies
punishable by correctional penalties not
e'ceeding 8 years imprisonment, where
the o/ended party is a private person#
8) &he civil aspect of estafa, theft and libel#
J) All civil cases and probate proceedings,
testate and intestate, brought on appeal
from the e'clusive and original +urisdiction
granted to the frst level courts#
K) All cases of forcible entry and unlawful
detainer brought on appeal from the
e'clusive and original +urisdiction granted
to the frst level courts#
E) All civil cases involving title to or
possession of real property or an interest
therein brought on appeal from the
e'clusive and original +urisdiction granted
to the frst level courts# and
%F) All habeas corpus cases decided by the
frst level courts in the absence of the
,egional &rial !ourt +udge, that are
brought up on appeal from the special
+urisdiction granted to the frst level
courts.
&he following !AS9S S4AGG <A& $9 ,9=9,,9?
&A !A; A<? :?,"
%) !ivil cases which by law cannot be
compromised#
() Ather criminal cases not covered under
paragraphs ) to 8 above#
)) 4abeas !orpus petitions#
*) All cases under ,epublic Act <o. E(8(
(Violence against 0omen and !hildren)#
and
5) !ases with pending application for
,estraining ArdersL3reliminary n+unctions.
4owever, in cases covered under %, * and 5
where the parties inform the court that they have
agreed to undergo mediation on some aspects
thereof, e.g., custody of minor children,
separation of property, or support !en'ente ite,
the court shall refer them to mediation.
PROCEDURE
:udicial proceedings shall be divided into two
stages"
%) =rom the fling of a complaint to the
conduct of !A; and :?, during the pre.
trial stage, and
() pre.trial proper to trial and +udgment. &he
+udge to whom the case has been
originally raXed, who shall be called the
:?, :udge, shall preside over the frst
stage. &he +udge, who shall be called the
trial +udge, shall preside over the second
stage.
At the initial stage of the pre.trial conference, the
:?, +udge briefs the parties and counsels of the
!A; and :?, processes. &hereafter, he issues an
Arder of ,eferral of the case to !A; and directs
the parties and their counsels to proceed to the
3;!> bringing with them a copy of the Arder of
,eferral. &he :?, +udge shall include in said
Arder, or in another Arder, the pre.setting of the
case for :?, not earlier than forty.fve (*5) days
from the time the parties frst personally appear
at the 3;!> so that :?, will be conducted
immediately if the parties do not settle at !A;.
All incidents or motions fled during the frst stage
shall be dealt with by the :?, +udge. f :?, is not
conducted because of the failure of the parties to
appear, the :?, +udge may impose the
appropriate sanctions and shall continue with the
proceedings of the case.
f the parties do not settle their dispute at !A;,
the parties and their counsels shall appear at the
preset date before the :?, +udge, who will then
conduct the :?, process as mediator, neutral
evaluator andLor conciliator in order to actively
assist and facilitate negotiations among the
parties for them to settle their dispute. As
mediator and conciliator, the +udge facilitates the
settlement discussions between the parties and
tries to reconcile their di/erences. As a neutral
evaluator, the +udge assesses the relative
strengths and wea2nesses of each partyVs case
and ma2es a non.binding and impartial
evaluation of the chances of each partyVs success
in the case. An the basis of such neutral
evaluation, the +udge persuades the parties to a
fair and mutually acceptable settlement of their
dispute.
&he :?, +udge shall not preside over the trial of
the case when the parties did not settle their
dispute at :?,.
CRIMINAL CASES
f settlement is reached on the civil aspect of the
criminal case, the parties, assisted by their
respective counsels, shall draft the compromise
agreement which shall be submitted to the court
for appropriate action.
Action on the criminal aspect of the case will be
determined by the 3ublic 3rosecutor, sub+ect to
the appropriate action of the court.
160
f settlement is not reached by the parties on the
civil aspect of the criminal case, the :?, +udge
shall proceed to conduct the trial on the merits of
the case should the parties fle a +oint written
motion for him to do so, despite confdential
information that may have been divulged during
the :?, proceedings. Atherwise, the :?, :udge
shall turn over the case to a new +udge by re.
raXe in multiple sala courts or to the originating
court in single sala courts, for the conduct of
pretrial proper and trial.
PRE*TRIAL PROPER
0here no settlement or only a partial settlement
was reached, and there being no +oint written
motion submitted by the parties, as stated in the
last preceding paragraphs, the :?, +udge shall
turn over the case to the trial +udge, determined
by re.raXe in multiple sala courts or to the
originating court in single sala courts, as the case
may be, to conduct pre.trial proper, as mandated
by *ues 1= "n' 11= of the *ues of Court.
TRIAL .RULE11A0
!ontinuous trial is one where the courts are
called upon to conduct the trial with utmost
dispatch, with +udicial e'ercise of the court@s
power to control the trial to avoid delay and for
each party to complete the presentation of
evidence with the trial dates assigned to him.
INSTANCES W%EN PRESENCE OF ACCUSED
IS RE<UIRED BY LAW
&he only instances when the presence of the
accused is re-uired by law and when the law may
forfeit the bond if he fails to appear are"
%) An arraignment#
() An promulgation of +udgment e'cept for
light o/enses#
)) =or identifcation purposes#
*) 0hen the court with due notice re-uires
so.
RE<UISITE BEFORE TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS
&o warrant postponement due to absence of a
witness, it must appear"
a) &hat the witness is really material and
appears to the court to be so#
b) &hat the party who applies for
postponement has not been guilty of
neglect#
c) &hat the witness can be had at the
time to which the trial has been
deferred# and
d) &hat no similar evidence could be
obtained.
&he non.appearance of the prosecution at the
trial, despite due notice, +ustifes a provisional
dismissal or an absolute dismissal, depending
on the circumstances.
Any period of delay resulting from the
absence or unavailability of an essential
witness shall be e'cluded in computing the
time within which trial must commence.

TRIAL IN ABSENTIA
&he !onstitution permits trial in absentia of an
accused after his arraignment who un+ustifably
fails to appear during the trial notwithstanding
due notice. &he purpose of trial in absentia is to
speed up the disposition of criminal cases.
&he ,9H>S&9S A= &,AG < A$S9<&A are"
a) &he accused has been arraigned#
b) 4e has been duly notifed of the trial# and
c) 4is failure to appear is +ustifed.
&he waiver of the accused of appearance or trial
in absentia does not mean that the prosecution is
thereby deprived of its right to re-uire the
presence of the accused for purposes of
identifcation by the witnesses which is vital for
conviction of the accused, e'cept where he
un-ualifedly admits in open court after his
arraignment that he is the person named as
defendant in the case on trial. Such waiver does
not mean a release of the accused from his
obligation under the bond to appear in court
whenever re-uired.
4e can still be subpoenaed to appear for
identifcation purposes, without violating his right
against self.incrimination as he will not ta2e the
stand to testify but merely to be present in court,
where the prosecution witness may, while in the
witness stand, point to him as the accused.
REMEDY W%EN ACCUSED IS NOT BROUG%T
TO TRIAL WIT%IN T%E PRESCRIBED PERIOD
f the accused is not brought to trial within the
time limit, the information may be dismissed on
motion of the accused on the ground of denial of
his right to speedy trial. &he dismissal shall be
sub+ect to the rules on double +eopardy.
=ailure of the accused to move for dismissal prior
to trial shall constitute a waiver of the right to
dismiss under this section.
161
RE<UISITES FOR DISC%ARGE OF ACCUSED
TO BECOME A STATE WITNESS
0hen two or more persons are +ointly charged
with the commission of any o/ense, upon motion
of the prosecution before resting its case, the
court may direct one or more of the accused to
be discharged with their consent so that they
may be witnesses for the state when, after
re-uiring the prosecution to present evidence and
the sworn statement of each proposed state
witness at a hearing in support of the discharge,
the court is satisfed that"
%) &here is absolute necessity for the
testimony of the accused whose discharge
is re-uested#
() &here is no other direct evidence available
for the proper prosecution of the o/ense
committed, e'cept the testimony of said
accused#
)) &he testimony of said accused can be
substantially corroborated in its material
points#
*) Said accused does not appear to be the
most guilty# and
5) Said accused has not at any time been
convicted of any o/ense involving moral
turpitude.
9vidence adduced in support of the discharge
shall automatically form part of the trial. f the
court denies the motion for discharge of the
accused as state witness, his sworn statement
shall be inadmissible in evidence.
EFFECTS OF DISC%ARGE OF ACCUSED AS
STATE WITNESS
&he order shall amount to an ac-uittal of the
discharged accused and shall be a bar to future
prosecution for the same o/ense, unless"
a) &he accused fails or refuses to testify
against his co.accused in accordance with
his sworn statement constituting the basis
for his discharge.
b) f he was granted immunity and fails to
2eep his part of the agreement, his
confession of his participation in the
commission of the o/ense is admissible in
evidence against him.
&he court shall order the discharge and e'clusion
of the said accused from the information.
Admission into such 3rogram shall entitle such
State 0itness to immunity from criminal
prosecution for the o/ense or o/enses in which
his testimony will be given or used.
DEMURRER TO EVIDENCE
After the prosecution rests its case, the court
may dismiss the action on the ground of
insu5ciency of evidence (%) on its own
initiative after giving the prosecution the
opportunity to be heard or (() upon demurrer
to evidence fled by the accused with or
without leave of court.
f the court denies the demurrer to evidence
fled with leave of court, the accused may
adduce evidence in his defense.
0hen the demurrer to evidence is fled
without leave of court, the accused waives
the right to present evidence and submits the
case for +udgment on the basis of the
evidence for the prosecution.
&he motion for leave of court to fle demurrer
to evidence shall specifcally state its grounds
and shall be fled within a non.e'tendible
period of fve (5) days after the prosecution
rests its case. &he prosecution may oppose
the motion within a non.e'tendible period of
fve (5) days from its receipt.
f leave of court is granted, the accused shall
fle the demurrer to evidence within a non.
e'tendible period of ten (%F) days from
notice. &he prosecution may oppose the
demurrer to evidence within a similar period
from its receipt.
&he order denying the motion for leave of
court to fle demurrer to evidence or the
demurrer itself shall not be reviewable by
appeal or by certiorari before +udgment.
,UDGMENT .RULE 1200
:udgment means the ad+udication by the court
that the accused is guilty or is not guilty of the
o/ense charged, and the imposition of the proper
penalty and civil liability provided for by law on
the accused.
;emorandum decision is one in which the
appellate court may adopt by reference, the
fndings of facts and conclusions of law contained
in the decision appealed from.
RE<UISITES OF A ,UDGMENT
t must be written in the o5cial language,
personally and directly prepared by the +udge and
signed by him and shall contain clearly and
distinctly a statement of the facts and the law
upon which it is based.
CONTENTS OF ,UDGMENT
162
f the +udgment is of conviction, it shall state"
%) the legal -ualifcation of the o/ense
constituted by the acts committed by the
accused and the aggravating or mitigating
circumstances which attended its
commission#
() the participation of the accused in the
o/ense, whether as principal, accomplice,
or accessory after the fact#
)) the penalty imposed upon the accused#
and
*) the civil liability or damages caused by his
wrongful act or omission to be recovered
from the accused by the o/ended party, if
there is any, unless the enforcement of
the civil liability by a separate civil action
has been reserved or waived.
n case the +udgment is of ac-uittal, it shall state
whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused
or merely failed to prove his guilt beyond
reasonable doubt. n either case, the +udgment
shall determine if the act or omission from which
the civil liability might arise did not e'ist.
PROMULGATION OF ,UDGMENTJ INSTANCES
OF PROMULGATION OF ,UDGMENT IN
ABSENTIA
&he +udgment is promulgated by reading it in the
presence of the accused and any +udge of the
court in which it was rendered. 4owever, if the
conviction is for a light o/ense, the +udgment
may be pronounced in the presence of his
counsel or representative. 0hen the +udge is
absent or outside the province or city, the
+udgment may be promulgated by the cler2 of
court.
f the accused is confned or detained in another
province or city, the +udgment may be
promulgated by the e'ecutive +udge of the
,egional &rial !ourt having +urisdiction over the
place of confnement or detention upon re-uest
of the court which rendered the +udgment. &he
court promulgating the +udgment shall have
authority to accept the notice of appeal and to
approve the bail bond pending appeal# provided,
that if the decision of the trial court convicting
the accused changed the nature of the o/ense
from non.bailable to bailable, the application for
bail can only be fled and resolved by the
appellate court.
&he proper cler2 of court shall give notice to the
accused personally or through his bondsman or
warden and counsel, re-uiring him to be present
at the promulgation of the decision. f the
accused was tried in absentia because he +umped
bail or escaped from prison, the notice to him
shall be served at his last 2nown address.
n case the accused fails to appear at the
scheduled date of promulgation of +udgment
despite notice, the promulgation shall be made
by recording the +udgment in the criminal doc2et
and serving him a copy thereof at his last 2nown
address or thru his counsel.
f the +udgment is for conviction and the failure of
the accused to appear was without +ustifable
cause, he shall lose the remedies available in
these rules against the +udgment and the court
shall order his arrest. 0ithin ffteen (%5) days
from promulgation of +udgment, however, the
accused may surrender and fle a motion for
leave of court to avail of these remedies. 4e shall
state the reasons for his absence at the
scheduled promulgation and if he proves that his
absence was for a +ustifable cause, he shall be
allowed to avail of said remedies within ffteen
(%5) days from notice.
W%EN DOES ,UDGMENT BECOME FINAL
.FOUR INSTANCES0
a) After the lapse of the period for perfecting
an appeal#
b) 0hen the sentence has been partially or
totally satisfed or served#
c) 0hen the accused has waived in writing
his right to appeal# or
d) 4as applied for probation.
MNT OR MR IN
CRIMINAL CASES
MNT OR MR IN
CIVIL CASES
9ither on motion of
accused, or the court
motu proprio with
consent of the
accused
;ust be upon motion
of a party, can@t be
motu proprio
Jroun's for ,-1 7
errors of law or
irregularities
committed during the
trial, or newly
discovered evidence
Jroun's for ,-1 7
=A;9, or newly
discovered evidence
Jroun' for ,* 7 error
of law or fact
Jroun's for ,* 7
9'cessive damages,
insu5cient evidence,
or decision is contrary
to law
=iled any time before
+udgment of conviction
becomes fnal
=iled within the period
for ta2ing an appeal
Should include all the
grounds then
163
available and those
not so included shall
be deemed waived.
0hen granted, the
original +udgment is
always set aside or
vacated and a new
+udgment rendered
&here may be partial
grant
GROUNDS FOR NEW TRIAL
a) &hat errors of law or irregularities pre+udicial
to the substantial rights of the accused have
been committed during the trial#
b) &hat 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
+udgment.
GROUNDS FOR RECONSIDERATION
&he court shall grant reconsideration on the
ground of errors of law or fact in the +udgment,
which re-uires no further proceedings.
RE<UISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY
DISCOVERED EVIDENCE
a) &he evidence was discovered after trial#
b) &he evidence could not have been discovered
and produced at the trial even with e'ercise
of reasonable diligence#
c) &he evidence is material, not merely
cumulative, corroborative or impeaching#
d) t must go to the merits as it would produce a
di/erent result if admitted.
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
a) 0hen a new trial is granted on the ground of
errors of law or irregularities committed
during the trial, all the proceedings and
evidence a/ected thereby shall be set aside
and ta2en anew. &he court may, in the
interest of +ustice, allow the introduction of
additional evidence.
b) 0hen a new trial is granted on the ground of
newly.discovered evidence, the evidence
already adduced shall stand and the newly.
discovered and such other evidence as the
court may, in the interest of +ustice, allow to
be introduced shall be ta2en and considered
together with the evidence already in the
record.
c) < AGG !AS9S, when the court grants new trial
or reconsideration, the original +udgment shall
be set aside or vacated and a new +udgment
rendered accordingly.
APPLICATION OF NEYPES DOCTRINE IN
CRIMINAL CASES
&his rule was adopted &A S&A<?A,?[9 &49
A339AG 39,A?S provided in the ,ules to a/ord
fair opportunity to review the case and, in the
process, minimi6e errors of +udgment. I%6ious+,
the ne) 15 '"+ !erio' $"+ %e "6"ie' of on+ if
either $otion is ?e' "n' )"s 'enie'; other)ise,
the 'ecision %eco$es ?n" "n' e#ecutor+ "fter
the "!se of the ori3in" "!!e" !erio' !ro6i'e' in
*ue 91
f the motion is denied, the movants has a fresh
period of %5 days from receipt or notice of the
order denying or dismissing the motion for
reconsideration within which to fle a notice to
appeal.
&his fresh period rule applies only to ,ule *%
governing appeals from the ,&! but also to ,ule
*F governing appeals from ;&! to ,&!, ,ule *(
on petitions for review from the ,&! to the !A,
,ule *) on appeal from -uasi.+udicial agencies to
the !A, and ,ule *5 governing appeals by
certiorari to the S!.
<eypes ruling shall not be applied where no
motion for new trial or motion for reconsideration
has been fled in which case the %5.day period
shall run from notice of the +udgment.
&he fresh period rule does not refer to the period
within which to appeal from the order denying the
motion for new trial because the order is not
appealable.
n the case of 2u'ith Ou 6s. 2u'3e S"$son, Ge%. 9,
2.11, the S! held that the <eypes doctrine is
applicable in criminal cases.
APPEAL .RULE 1220
An appeal opens the whole case for review and
this includes the review of the penalty, indemnity
and the damages involved.
EFFECT OF AN APPEAL
>pon perfection of the appeal, the e'ecution of
the +udgment or order appealed from is stayed as
to the appealing party. &he civil appeal of the
164
o/ended party does not a/ect the criminal aspect
of the +udgment or order appealed from.
&he trial court loses +urisdiction over the, e'cept"
1) &o issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated
by the appeal#
2) &o approve compromises o/ered by the
parties prior to the transmission of the
records on appeal to the appellate court.
W%ERE TO APPEAL
a) &o the ,egional &rial !ourt, in cases decided
by the ;&!s#
b) &o the !ourt of Appeals or to the Supreme
!ourt in the proper cases provided by law, in
cases decided by the ,&!# and
c) &o the Supreme !ourt, in cases decided by the
!ourt of Appeals.
%OW APPEAL TA+EN
a) &he appeal to the ,&!, or to the !A in cases
decided by the ,&! in the e'ercise of its
original +urisdiction, shall be ta2en by fling a
<A&!9 A= A339AG with the court which
rendered the +udgment or fnal order appealed
from and by serving a copy thereof upon the
adverse party.
b) &he appeal to the !A in cases decided by the
,&! in the e'ercise of its appellate +urisdiction
shall be by 39&&A< =A, ,9V90 under ,ule
*(.
c) &he appeal to the S! in cases where the
penalty imposed by the ,&! is reclusion
perpetua, or life imprisonment, or where a
lesser penalty is imposed but for o/enses
committed on the same occasion or which
arose out of the same occurrence that gave
rise to the more serious o/ense for which the
penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by fling a
<A&!9 A= A339AG.
d) <o notice of appeal is necessary in cases
where the death penalty is imposed by the
,&!. &he same shall be automatically
reviewed by the S!.
9'cept as provided in the last paragraph
of section 13, *ue 129, all other appeals
to the Supreme !ourt shall be by 39&&A<
=A, ,9V90 A< !9,&A,A, under ,ule
*5.
EFFECT OF APPEAL BY ANY OF SEVERAL
ACCUSED
a) An appeal ta2en by one or more of several
accused shall not a/ect those who did not
appeal, e'cept insofar as the +udgment of the
appellate court is favorable and applicable to
the latter.
b) &he appeal of the o/ended party from the
civil aspect shall not a/ect the criminal aspect
of the +udgment or order appealed from.
GROUNDS FOR DISMISSAL OF APPEAL
a) =ailure on the part of the appellant to fle brief
within the reglementary period, e'cept when
he is repsented by counsel de o5cio#
b) 9scape f the appellant from prison or
confnement#
c) 0hen the appellant +umps bail#
d) =light of the appellant for a foreign country
during the pendency of the appeal#
e) 3atently without merit#
f) 3rosecuted manifestly for delay# or
g) &he -uestions raised therein are too
unsubstantial to re-uire consideration.
SEARC% AND SEIIURE .RULE 12@0
NATURE OF SEARC% WARRANT
&he constitutional right against unreasonable
search and sei6ure refers to the immunity of
one@s person, whether a citi6en or alien, from
interference by government, included in whish is
his residence, his papers and other possession.
&he overriding function of the constitutional
guarantee is to protect personal privacy and
human dignity against unwarranted intrusion by
the State.
&he right of the people to be secure in their
persons, houses, papers, and e/ects against
unreasonable searches and sei6ures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue e'cept upon probable cause to be
determined personally by the +udge after
e'amination under oath or a5rmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be sei6ed
(Sec. 2, Art. III, Constitution).
SEARC% WARRANT .RULE 12@0 WARRANT OF ARREST .RULE 1130
A search warrant is an order in writing issued in
the name of the 3eople of the 3hilippines,
Arrest is the ta2ing of a person into custody in
order that he may be bound to answer for the
165
signed by a +udge and directed to a peace
o5cer, commanding him to search for personal
property described therein and bring it before
the court (Sec. 1, *ue 12<).
commission of an o/ense (Sec. 1, *ue 113).
*e(uisites0
A search warrant shall not issue e'cept upon
probable cause in connection with one specifc
o/ense to be determined personally by the
+udge after e'amination under oath or
a5rmation of the complainant and the witness
he may produce, and particularly describing the
place to be searched and the things to be sei6ed
which may be anywhere in the 3hilippines (Sec.
9, *ue 12<).
*e(uisites for "rrest )"rr"nt issue' %+ *1C
&u'3e un'er Sec. 5, *ue 1120
a) 0ithin %F days from the fling of the
complaint or information
b) &he +udge shall personally evaluate the
resolution of the prosecutor and its
supporting evidence.
c) f he fnds probable cause, he shall issue a
warrant of arrest
d) n case of doubt on the e'istence of
probable cause
e) &he +udge may order the prosecutor to
present additional evidence within 5 days
from notice# and
f) &he issue must be resolved by the court
within )F days from the fling of the
complaint of information
Se"rch or seiKure )ithout )"rr"nt, )hen ")fu0
%) !onsented search#
() As an incident to a lawful arrest#
)) Searches of vessels and aircrafts for violation
of immigration, customs and drug laws#
*) Searches of moving vehicles#
5) Searches of automobiles at borders or
constructive borders#
8) 0here the prohibited articles are in plain
view#
J) Searches of buildings and premises to
enforce fre, sanitary and building
regulations#
K) MStop and fris2N operations#
E) 9'igent and emergency circumstances (in
ti$es of )"r "n' )ithin the "re" of $iit"r+
o!er"tion)
Arrest )ithout )"rr"nt, )hen ")fu0
a) 0hen, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
o/ense#
b) 0hen an o/ense has +ust been committed
and he has probable cause to believe
based on personal 2nowledge of facts or
circumstances that the person to be
arrested has committed it# and
c) 0hen the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
fnal +udgment or is temporarily confned
while his case is pending, or has escaped
while being transferred from one
confnement to another (Sec. 5, *ue 113).
APPLICATION FOR SEARC% WARRANT/
W%ERE FILED
An application for search warrant shall be fled
with the following"
a) Any court within whose territorial
+urisdiction a crime was committed.
b) =or compelling reasons stated in the
application, any court within the +udicial
region where the crime was committed if
the place of the commission of the crime
is 2nown, or any court within the +udicial
region where the warrant shall be
enforced.
4owever, if the criminal action has already been
fled, the application shall only be made in the
court where the criminal action is pending.
PROBABLE CAUSE
3robable cause is defned as such facts and
circumstances which could lead a reasonably
discreet and prudent man to believe that an
o/ense has been committed and that the ob+ects
sought in connection with the o/ense are in the
place sought to be searched.
ReFu"s"'es 82- "ssu"(: se#-17 $#--#(' 7 A
search warrant shall not issue e'cept upon
probable cause in connection with one specifc
o/ense to be determined personally by the +udge
after e'amination under oath or a5rmation of the
complainant and the witness he may produce,
and particularly describing the place to be
searched and the things to be sei6ed which may
be anywhere in the 3hilippines.
Issu#(1e #(! 82- 28 se#-17 $#--#(' 7 f the
+udge is satisfed of the e'istence of facts upon
which the application is based or that there is
166
probable cause to believe that they e'ist, he shall
issue the warrant, which must be substantially in
the form prescribed by these ,ules.
PERSONAL EXAMINATION BY ,UDGE OF T%E
APPLICANT AND WITNESSES
&he +udge must, before issuing the warrant,
personally e'amine in the form of searching
-uestions and answers, in writing and under oath,
the complainant and the witnesses he may
produce on facts personally 2nown to them and
attach to the record their sworn statements,
together with the a5davits submitted.
PARTICULARITY OF PLACE TO BE
SEARC%ED AND T%INGS TO BE SEIIED
&he warrant must particularly describe the place
to be searched and the persons or things to be
sei6ed.
&he rule is that a description of the place to be
searched is su5cient if the o5cer with the
warrant can, with reasonable e/ort, ascertain and
identify the place intended to be searched. 0here
there are several apartments in the place to be
searched, a description of the specifc place can
be determined by reference to the a5davits
supporting the warrant that the apartment to be
searched is the one occupied by the accused. &he
searching party cannot go from one apartment to
the other as the warrant will then become a
general warrant.
PERSONAL PROPERTY TO BE SEIIED
A search warrant may be issued for the search
and sei6ure of personal property"
a) Sub+ect of the o/ense#
b) Stolen or embe66led and other proceeds,
or fruits of the o/ense# or
c) >sed or intended to be used as the means
of committing an o/ense.
t is not necessary that the property to
be searched or sei6ed should be
owned by the person against whom
the search is issued# it is su5cient that
the property is under his control or
possession.
EXCEPTIONS TO SEARC% WARRANT
RE<UIREMENT
1= SEARC% INCIDENTAL TO LAWFUL ARREST
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission
of an o/ense without a search warrant.
&he law re-uires that there frst be a lawful arrest
before a search can be made. &he process cannot
be reversed. &hus, in a buy.bust operation
conducted to entrap a drug pusher, the law
enforcement agents may sei6e the mar2ed
money found on the person of the pusher
immediately after the arrest even without arrest
and search warrants.
&his is absolutely limit a warrantless search of a
person who is lawfully arrested to his or her
person at the time of and incident to his or her
arrest and to dangerous weapons or anything
which may be used as proof of the commission of
the o/ense. Such warrantless search obviously
cannot be made in any other than the place of
arrest.
2= CONSENTED SEARC%
,ights may be waived, unless the waiver is
contrary to law, public order, morals, or good
customs, or pre+udicial to a third person with a
right recogni6ed by law.
&o constitute a valid waiver of a constitutional
right, it must appear"
a) that the right e'ists,
b) the person involved had 2nowledge either
actual or constructive, of the e'istence of
such right, and
c) said person has an actual intention to
relin-uish the right.
As the constitutional guarantee is not dependent
upon any a5rmative act of the citi6en, the courts
do not place the citi6en in the position of either
contesting an o5cer@s authority by force, or
waiving his constitutional rights, but instead they
hold that a peaceful submission and silence of
the accused in a search or sei6ure is not a
consent or an invitation thereto, but is merely a
demonstration of regard to the supremacy of the
law.
3= SEARC% OF MOVING VE%ICLE
n carrying out warrantless searches of moving
vehicles, peace o5cers are limited to routine
chec2s, that is, the vehicles are neither really
searched nor their occupants sub+ected to
physical or body searches, the e'amination of the
vehicles being limited to visual inspection.
167
0arrantless search for moving vehicle is +ustifed
on the ground that it is not practicable to secure
a warrant because the vehicle can be -uic2ly
moved out of the locality or +urisdiction in which
the warrant must be sought.
4= C%EC+ POINTSJ BODY C%EC+S IN
AIRPORT
A warrantless search conducted at police or
military chec2points has been upheld for as long
as the vehicle is neither searched nor its
occupants sub+ected to body search, and the
inspection of the vehicle is merely limited to
visual search.
,outine inspections are not regarded as violative
of an individual@s right against unreasonable
search.
&he search is limited to the following instances"
%) where the o5cer merely draws aside the
curtain of a vacant vehicle which is par2ed
on the public fair grounds#
() simply loo2s into a vehicle#
)) Iashes a light therein without opening the
car@s doors#
*) where the occupants are not sub+ected to
a physical or body search#
5) where the inspection of the vehicles is
limited to a visual search or visual
inspection# and
8) where the routine chec2 is conducted in a
f'ed area.
6= PLAIN VIEW SITUATION
t recogni6es that ob+ects inadvertently falling in
plain view of an o5cer who has the right to be in
the position to have that view, are sub+ect to
sei6ure without warrant.
t is usually applied where a police o5cer is not
searching for evidence against the accused, but
nonetheless inadvertently comes across an
incriminating ob+ect.
t is also been suggested that even if an ob+ect is
observed in plain view, the sei6ure of the sub+ect
will not be +ustifed where the incriminating
nature of the ob+ect is not apparent# it must be
immediately apparent to the police that the items
that they observe may be evidence of a crime,
contraband or otherwise sub+ect to sei6ure.
&he elements of Mplain viewNsei6ure are"
%) prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their
o5cial duties#
() the evidence was inadvertently discovered
by the police who had the right to be
where they are#
)) the evidence must be immediately
apparent# and
*) Mplain viewN +ustifed mere sei6ure of
evidence without further search.
@= STOP AND FRIS+ SITUATION
A person who was carrying a bag and acting
suspiciously could be searched by police o5cers
and the unlicensed frearm sei6ed inside the bag
is admissible in evidence, being an incident of a
lawful arrest.
A person roaming around in a place where drug
addicts usually are found, whose eyes were red
and who was wobbling li2e a drun2, could be
legally searched of his person and the illegal drug
sei6ed from him is admissible in evidence against
him.
A stop and fris2 serves a two.fold interest"
a) the general interest of e/ective criminal
protection and detection which underlie
the recognition that a police o5cer may,
under appropriate circumstances and in
an appropriate manner, approach a person
for purposes of investigating possible
criminal behavior even without probable
cause# and
b) the more pressing interest of safety and
self.preservation which permit the police
o5cer to ta2e steps to assure himself that
the person with whom he deals is not
armed with a deadly weapon that could
une'pectedly and fatally be used against
him.
7= ENFORCEMENT OF CUSTOM LAWS
&he intention is to prevent smuggling and to
secure the collection of the legal duties, ta'es
and other charges.
>nder the &ari/ and !ustoms !ode, !ustoms
o5cers are authori6ed to ma2e arrest, search and
sei6ure of any vessel, aircraft, cargo, articles,
animals or other movable property when the
same is sub+ect to forfeiture or liable for any fne
under the customs and tari/ laws, rules and
regulations and may at any time enter, pass
168
through or search any land or inclosure or any
warehouse, store or other building without being
a dwelling house.
A dwelling house may be entered or searched
only upon warrants issued by +udge upon sworn
application showing probable cause and
particularly describing the placed to be searched
and person or things to be searched.
C= SEARC%ES OF AUTOMOBILES AT
BORDERS OR CONSTRUCTIVE BORDERS
A= SEARC%ES OF BUILDINGS AND PREMISES
TO ENFORCE FIRE/ SANITARY AND
BUILDING REGULATIONS
10= EXIGENT AND EMERGENCY
CIRCUMSTANCES
11= IN TERMS OF WAR WIT%IN T%E AREA OF
MILITARY OPERATION
REMEDIES FROM UNLAWFUL SEARC% AND
SEIIURE
A motion to -uash a search warrant andLor to
suppress evidence obtained thereby may be fled
in and acted upon only by the court where the
action has been instituted. f no criminal action
has been instituted, the motion may be fled in
and resolved by the court that issued search
warrant. 4owever, if such court failed to resolve
the motion and a criminal case is subse-uently
fled in another court, the motion shall be
resolved by the latter court.
Alternative remedies of the accused adversely
a/ected by a search warrant are the following"
%) ;otion to -uash the search warrant with
the issuing court# or
() ;otion suppress evidence with the court
trying the criminal case.
&he remedies are alternative, not cumulative. f
the motion to -uash is denied, a motion to
suppress cannot be availed of subse-uently.
,eplevin may also be proper if the ob+ects are
legally possessed.
PROVISIONAL REMEDIES .RULE 1270
NATURE
&he provisional remedies in civil actions, insofar
as they are applicable, may be availed of in
connection with the civil action deemed instituted
with the criminal action.
An application for recovery of damages on the
bond posted for purposes of said provisional
remedies shall be made in the same action and,
generally, cannot be the sub+ect of a separate
action.
&he provisional remedies are proper only where
the civil action for the recovery of civil liability e#
'eicto has not been e'pressly waived or the right
to institute such civil action separately is not
reserved, in those cases where such reservation
may be made.
+INDS OF PROVISIONAL REMEDIES
ATTAC%MENT
0hen the civil action is properly instituted in the
criminal action as provided in ,ule %%%, the
o/ended party may have the property of the
accused attached as security for the satisfaction
of any +udgment that may be recovered from the
accused in the following cases"
%) 0hen the accused is about to abscond
from the 3hilippines#
() 0hen the criminal action is based on a
claim for money or property embe66led or
fraudulently misapplied or converted to
the use of the accused who is a public
o5cer, o5cer of a corporation, attorney,
factor, bro2er, agent or cler2, in the course
of his employment as such, or by any
other person in a fduciary capacity, or for
a willful violation of duty#
)) 0hen the accused has concealed,
removed, or disposed of his property, or is
about to do so# and
*) 0hen the accused resides outside the
3hilippines.
*ue 5; on preliminary attachment applies on
the procedure to secure an attachment in the
cases authori6ed under *ue 12;.
At the commencement of the action or at any
time before entry of +udgment, a plainti/ or
any proper party may have the property of
the adverse party attached as security for the
satisfaction of any +udgment that may be
recovered in the following cases"
%) n an action for the recovery of a
specifed amount of money or
damages, other than moral and
169
e'emplary, on a cause of action arising
from law, contract, -uasi.contract,
delict or -uasi.delict against a party
who is about to depart from the
3hilippines with intent to defraud his
creditors#
() n an action for money or property
embe66led or fraudulently misapplied
or converted to his own use by a public
o5cer, or an o5cer or a corporation,
or an attorney, factor, bro2er, agent, or
cler2, in the course of his employment
as such, or by any other person in a
fduciary capacity, or for a willful
violation of duty#
)) n an action to recover the possession
of property un+ustly or fraudulently
ta2en, detained or converted, when
the property, or any part thereof, has
been concealed, removed, or disposed
of to prevent its being found or ta2en
by the applicant or an authori6ed
person#
*) n an action against a party who has
been guilty of a fraud in contracting
the debt or incurring the obligation
upon which the action is brought, or in
the performance thereof#
5) n an action against a party who has
removed or disposed of his property,
or is about to do so, with intent to
defraud his creditors# or
8) n an action against a party who does
not reside and is not found in the
3hilippines, or on whom summons may
be served by publication.
EVIDENCE .Rules 12C 1340
CONCEPT OF EVIDENCE
9vidence is the means, sanctioned by the ,ules
of !ourt, of ascertaining in a +udicial proceeding
the truth respecting a matter of fact. t is only a
means of ascertaining the truth. &his truth should
depend upon the evidence submitted in a court in
accordance with the rules.
Benerally, the manner of proving factual
allegations is through witnesses who are placed
in the witness stand to testify on what they
personally 2now or to identify relevant
documents. &hey are presented voluntarily or
through the coercive process of su%!oen" 'uces
tecu$.
9vidence is also secured by resorting to modes of
discoveries, such as"
a) &a2ing of depositions of any person, oral or
written (,ule ())#
b) Serving of interrogatories to parties (,ule
(5)#
c) Serving of re-uests for admission by the
adverse party (,ule (5)#
d) 3roduction and inspection of documents
(,ule (J)# and
e) 9'amination of physical and mental
conditions of persons (,ule (K).
A matter may also be proved by means of
a5davit, such as in motions based on facts not
appearing on record, in cases covered by the
,ules on Summary 3rocedure, and those fled in
administrative or -uasi.+udicial bodies.
SCOPE OF T%E RULES OF EVIDENCE
&he rules of evidence are guided by the !rinci!e
of unifor$it+. As a general policy, the rules of
evidence shall be the same in all courts and in all
trials and hearings.
EVIDENCE IN CIVIL
CASES
EVIDENCE IN
CRIMINAL CASES
&he party having the
burden of proof must
prove his claim by a
preponderance of
evidence.
&he guilt of the
accused has to be
proven beyond
reasonable doubt.
An o/er of
compromise is not an
admission of any
liability, and is not
admissible in evidence
against the o/eror.
9'cept in cases of
criminal negligence or
those allowed by law
to be compromised,
an o/er of
compromise by the
accused may be
received in evidence
as an implied
admission of guilt.
Benerally, there is no &he accused en+oys
170
presumption for or
against a party, e'cept
in some civil cases
such as in a
contractual suit
against the carrier,
there e'ists a
presumption against
the defendant.
the presumption of
innocence.
EVIDENCE PROOF
;edium of proof L
;eans to the end
9/ect and result of
evidence L 9nd result.
FACTUM PROBANDUM FACTUM PROBANS
3roposition to be
established
;aterial evidencing
the proposition
ADMISSIBILITY OF EVIDENCE
&wo a'ioms of admissibility"
a) <one but facts having rational probative
value are admissible (relevance).
b) All facts having rational probative value
are admissible unless some specifc rules
forbid (competence).
ADMISSIBILITY OF
EVIDENCE
WEIG%T OF
EVIDENCE
3ertains to the ability of
the evidence to be
allowed and accepted
sub+ect to its relevancy
and competence
3ertains to the
e/ect of evidence
admitted
RE<UISITES FOR ADMISSIBILITY OF
EVIDENCE
a) &hat it is relevant to the issue# and
b) &hat it is competent, that is, that it does not
belong to that class of evidence which is
e'cluded by the law or the rules.
RELEVANCE OF EVIDENCE AND
COLLATERAL MATTERS
*ee6"nce / evidence must have such a relation
to the fact in issue as to induce belief in its
e'istence or non.e'istence.
Co"ter" $"tters . evidence on collateral
matters shall not be allowed, e'cept when it
tends in any reasonable degree to establish the
probability or improbability of the fact in issue or
to corroborate or supplement facts established
previously by direct evidence.
a) 3rospectant collateral matters 7 those
preceding of the fact in issue but pointing
forward to it, li2e moral character, motive,
conspiracy#
b) !oncomitant collateral matters 7 those
accompanying the fact in issue and
pointing to it, li2e alibi, or opportunity and
incompatibility#
c) ,etrospectant collateral matters 7 those
succeeding the fact in issue but pointing
bac2ward to it, li2e Iight and
concealment, behavior of the accused
upon being arrested, fngerprints or
footprints, articles left at the scene of the
crime which may identify the culprit.
MULTIPLE ADMISSIBILITY
&here are times when pro/ered evidence is
admissible for two or more purposes. Sometimes
it is admissible for one purpose but inadmissible
for another or vice versa. t may also be
admissible against one party but not against
another. &his 2ind of evidence is to b received
provided it meets the relevancy and competency
tests for which it is o/ered.
CONDITIONAL ADMISSIBILITY
9vidence which appears to be immaterial is
admitted by the court and the proponent may as2
that the evidence be conditionally admitted in the
meantime sub+ect to the condition that he is
going to establish its relevancy and competency
at a later time. f a promise thus made is not
fulflled, the court may stri2e out the evidence
thus conditionally admitted, if a motion is made
by the opposite party.
CURATIVE ADMISSIBILITY
t refers to a situation where incompetent
evidence was erroneously received by the court
despite ob+ection from the other party. t will not
apply where the evidence was admitted without
ob+ection because of a waiver of the admissibility
of the evidence. So, where the ob+ection was
incorrectly overruled, the court must allow the
other party to introduce evidence to contradict
the evidence improperly admitted. &his is reasons
of fairness.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
DIRECT EVIDENCE is that which proves the fact
in dispute without the aid of any inference or
presumption. 9vidence which if believed proves
the e'istence of a fact in issue without
interference or presumption.
171
CIRCUMSTANTIAL EVIDENCE is the proof of
facts from which, ta2en collectively, the e'istence
of the particular fact in dispute may be inferred
as a necessary or probable conse-uence.
n a criminal case, circumstantial evidence is
su5cient for conviction provided the following
re-uisites concur"
%) &here is more than one circumstances#
() &he facts from which the inferences are
derived are proven# and
)) &he combination of all the circumstances
is such as to produce a conviction beyond
reasonable doubt.
POSITIVE AND NEGATIVE EVIDENCE
&estimony is positive when the witness a5rms
that a fact did or did not e'ist and is entitled
to greater weight.
t is negative when he says that he did not
see or 2now of the factual occurrence. t is
considered to be a very wea2 defense and can
never overcome an a5rmative or positive
testimony particularly when it comes from the
mouth of a credible witness.
COMPETENT AND CREDIBLE EVIDENCE
!ompetent evidence is one that is not e'cluded
by law or the rules. f the test of relevance is logic
and common sense, the test of competence is the
law or the rules. !ompetence, in relation to
evidence in general, refers to ei3i%iit+ of "n
e6i'ence to %e recei6e' "s such.
A witness may be competent, and yet give
incredible testimony# he may be incompetent,
and yet his evidence, if received, be perfectly
credible.
COMPETENT
EVIDENCE
CREDIBLE EVIDENCE
!ompetency is a
-uestion which arises
before considering the
evidence given by the
witness#
!redibility concerns
the degree of credit to
be given to his
testimony#
4enotes the !erson"
(u"i?c"tion of the
)itness
?enotes the veracity
of the testimony
BURDEN OF PROOF BURDEN OF
EVIDENCE
?enotes the duty of
establishing the truth of
;eans the necessity
of going forward with
a given proposition or
issue by such -uantum
of evidence as the law
demands in the case in
which the issue arises.
the evidence to meet
the prima facie case
created against him
t remains with the party
alleging facts and never
shifts to the other party.
4e who alleges the
a5rmative of the issue
has the burden of proof,
and the same never
parts.
t shifts from side to
side as the trial of the
case progresses
PRESUMPTIONS
A presumption is an assumption of fact resulting
from a rule of law which re-uires such fact to be
assumed from another fact or group of facts
found or otherwise established in the action. t is
not evidence in itself but it is an assumption
resulting from the evidence. &hey merely a/ect
the burden of o/ering evidence. n a sense, it is
an inference which is mandatory unless rebutted.
A= CONCLUSIVE PRESUMPTIONS
(&>09( 7< !7 &>07)
t is conclusive when the presumption becomes
irrebuttable upon the presentation of the
evidence tending to rebut the presumption is not
admissible. &his presumption is in reality a rule of
substantive law. 9'amples"
0henever a party has, by his own declaration,
act, or omission, intentionally and deliberately led
another to believe a particular thing true, and to
act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission,
be permitted to falsify it"
&he tenant is not permitted to deny the title of his
landlord at the time of the commencement of the
relation of landlord and tenant between them.
B= DISPUTABLE PRESUMPTIONS
(&>09( <A5<>B)
t is disputable or rebuttable or it may be
contradicted or overcome by other evidence.
0hen evidence that rebuts the presumption is
introduced, the force of the presumption
disappears.
172
") &hat a person is innocent of crime or
wrong#
%) &hat an unlawful act was done with an
unlawful intent#
c) &hat a person intends the ordinary
conse-uences of his voluntary act#
') &hat a person ta2es ordinary care of his
concerns#
e) &hat evidence willfully suppressed would
be adverse if produced (*ue 131, Sec 3).
LIBERAL CONSTRUCTION OF T%E RULES OF
EVIDENCE
&he rules of evidence must be i%er"+ construe'.
,ules of procedure are mere tools intended to
facilitate rather than to frustrate the attainment
of +ustice. A strict and rigid application of the
rules must always be eschewed if it would
subvert their primary ob+ective of enhancing
substantial +ustice. t means that the words
should receive a fair and reasonable
interpretation, so as to secure a +ust, speedy and
ine'pensive disposition of every action or
proceeding.
<UANTUM OF EVIDENCE .WEIG%T AND
SUFFICIENCY OF EVIDENCE QRULE 133R0
A= PROOF BEYOND REASONABLE DOUBT
re-uired for conviction of an accused in
criminal case
the logical and inevitable result of the
evidence on record, e'clusive of any other
consideration, of the moral certainty of the
guilt of the accused or that degree of proof
which produces conviction in an unpre+udiced
mind. t does not mean such degree of proof
as, e'cluding possibility of error, produces
absolute certainty. ;oral certainty only is
re-uired.
B= CLEAR AND CONVINCING EVIDENCE
that measure or degree of proof which will
produce in the mind of the trier of facts a frm
belief or conviction as to the allegations
sought to be established.
it is more than preponderance but not to the
e'tent of such moral certainty as is re-uired
beyond reasonable doubt as in criminal cases.
t is often said that to overcome a disputable
presumption of law, clear and convincing
evidence is re-uired (use to contr"'ict the
!resu$!tion of 6"i'it+ "n' re3u"rit+ in f"6or
of " not"ri" or !u%ic 'ocu$ent; the ")
enforcers h"6e re3u"r+ !erfor$e' their
'uties re(uires th"t !roof of fr"$e/u!; "n
"ccuse' )ho in6o:es sef/'efense).
&his standard should be lower than proof beyond
reasonable doubt but higher than preponderance
of evidence.
C= PREPONDERANCE OF EVIDENCE
re-uired in civil cases
that which is of greater weight or more
convincing than that which is o/ered in
opposition to it# synonymous with the terms
Mgreater weight of evidenceN or Mgreater
weight of credible evidence.N t means
probably the truth. t is evidence which is
more convincing to the court as worthy of
belief than that which is o/ered in opposition
thereto.
D= SUBSTANTIAL EVIDENCE
re-uired in administrative proceedings or
-uasi.+udicial bodies
such relevant evidence as a reasonable mind
might accept as ade-uate to support a
conclusion
more than a scintilla but may be somewhat
less than preponderance, even if other
reasonable minds might conceivably opine
otherwise. (SC s"i' th"t in "'$inistr"ti6e
c"ses "3"inst &u'3esLsherrifs "re hi3h+ !en"
in n"ture "n' re(uires !roof %e+on'
re"son"%e 'ou%t).
,UDICIAL NOTICE AND ,UDICIAL
ADMISSIONS
MATTERS OF ,UDICIAL NOTICE
&here are matters which must be admitted
without need for evidence. All these matters
which the court may ta2e cogni6ance of without
evidence are called matters of M+udicial noticeN.
&he function of +udicial notice is to abbreviate
litigation by the admission of matters that need
no evidence. t ta2es the place of proof and is of
e-ual force. t displaces evidence and fulfls the
purpose for which the evidence is designed to
fulfl.
a. MANDATORY when the matter is sub+ect to
a mandatory +udicial notice, no motion of hearing
is necessary for the court to ta2e +udicial notice of
a fact. &hese are"
173
a) the e'istence and territorial e'tent of
states#
b) the political history, forms of government
and symbols of nationality of states#
c) the law of nations#
d) the admiralty and maritime courts of the
world and their seals#
e) the political constitution and history of the
3hilippines#
f) the o5cial acts of the legislative,
e'ecutive and +udicial departments of the
3hilippines#
g) the laws of nature#
h) the measure of time# and
i) the geographical divisions.
b. DISCRETIONARY * A court may ta2e +udicial
notice of matters"
a) which are of public 2nowledge# or
b) capable of un-uestionable demonstration#
or
c) ought to be 2nown to +udges because of
their +udicial functions.
&he principles of discretionary +udicial notice will
apply here the following re-uisites are met"
a) &he matter must be of common
2nowledge#
b) &he matter must be settled beyond
reasonable doubt (if there is nay
uncertainty about the matter, then
evidence must be adduced)# and
c) &he 2nowledge must e'ist within the
+urisdiction of the court.
,UDICIAL ADMISSIONS
:udicial admissions are conclusive upon the party
ma2ing them, while e'tra+udicial admissions or
other admissions are, as a rule, and where the
elements of estoppels are not present, disputable
and needs to be formally o/ered in evidence.
?eclaration of a party favorable to himself are not
admissible as proof of the facts asserted.
&hey may be e'press or implied, implied
admissions by a defendant of material facts
alleged in a complaint include
%) 2eeping silent on such material facts,
() denying such material facts without
setting forth the matters upon which he
relies to support his denial, and
)) asserting lac2 of 2nowledge or information
of the truth of the material allegations
when the same is plainly and necessarily
within the 2nowledge of defendant.
EFFECT OF ,UDICIAL ADMISSIONS
An admission, verbal or written, made by a party
in the course of the proceedings in the same
case, does not re-uire proof. >nder Sec. *, ,ule
%(E, the following are the e/ects of +udicial
admissions"
%) &hey do not re-uire proof# and
() &hey cannot be contradicted because they
are conclusive upon the party ma2ing it.
%OW ,UDICIAL ADMISSIONS MAY BE
CONTRADICTED
:udicial admissions can be contradicted"
1) &hat it was made through palpable
mista2e# or
2) <o such admission was in fact made.
&hese e'ceptions may negate the
admission. But %efore the court $"+ "o)
" !"rt+ to reie6e hi$ of the e7ects of
"'$issions or to )ith'r") therefro$, he
h"s to sho), %+ !ro!er $otion, &usti?"%e
re"son or !"!"%e $ist":e.
,UDICIAL NOTICE OF FOREIGN LAWS/ LAW
OF NATIONS AND MUNICIPAL ORDINANCE
=oreign laws may not be ta2en +udicial notice of
and have to be proven li2e any other fact by an
o5cial publication or by a duly attested and
authenticated copy thereof. t must be alleged
and proved. 1he !ro6isions of the forei3n ")
$"+ "so %e the su%&ect of &u'ici" "'$ission
un'er Sec. 9, *ue 129. A%sent "n+ of the
fore3oin3 e6i'ence or "'$ission, the forei3n ")
is !resu$e' to the s"$e "s th"t in the
Phii!!ines, un'er the so/c"e' 'octrine of
!rocessu" !resu$!tion.
4owever, the court may ta2e +udicial notice of the
treatise containing the foreign law.
Gaw of nations is sub+ect to mandatory +udicial
notice under Sec. 1, *ue 129. >nder the
3hilippine !onstitution, the 3hilippines adopts the
generally accepted principles of international law
as part of the law of the land. 1he+ "re therefore
technic"+ in the n"ture of oc" ")s "n' hence,
"re su%&ect to " $"n'"tor+ &u'ici" notice.
;&!s must ta2e +udicial notice of municipal
ordinances in force in the municipality in which
they sit.
,&!s should also ta2e +udicial notice of municipal
ordinances in force in the municipalities within
their +urisdiction but only when so re-uired by
law. (i.e. the ch"rter of Cit+ of ,"ni" re(uires "
courts sittin3 therein to t":e &u'ici" notice of "
174
or'in"nces !"sse' %+ the cit+ counci.) Such
court must ta2e +udicial notice also of municipal
ordinances on appeal to it from the inferior court
in which the latter too2 +udicial.
&he !A may ta2e +udicial notice of municipal
ordinances because nothing in the ,ules prohibits
it from ta2ing cogni6ance of an ordinance which is
capable of un-uestionable demonstration.
RULES OF ADMISSIBILITY .RULE 1300
OB,ECT .REAL0 EVIDENCEJ NATURE OF
OB,ECT EVIDENCE
Ab+ects as evidence are those addressed to
the senses of the court. 0hen an ob+ect is
relevant to the fact in issue, it may be
e'hibited to, e'amined or viewed by the
court.
,eal evidence is also called autoptic
preference, which is inspection by the court of
a thing itself and its conditions, to enable the
court to e/ectively e'ercise its +udicial power
of receiving and weighing the evidence. t is
2nowledge ac-uired by the court from
inspection or by direct self.perception or
autopsy of the evidence.
3hysical evidence is evidence of the highest
order. t spea2s more elo-uently than a
hundred witnesses.
RE<UISITES FOR ADMISSIBILITY OF .REAL0
EVIDENCE
") &he ob+ect must be relevant to the fact in
issue (to %e ree6"nt, the e6i'ence $ust
h"6e " re"tionshi! to the f"ct in issue);
%) &he ob+ect must be competent ($ust not
%e e#cu'e' %+ the rues);
c) &he ob+ect must be authenticated before it
is admitted (it $ust %e sho)n th"t it is the
6er+ thin3 )hich is the su%&ect $"tter of
the suit);
') &he authentication must be made by a
competent witness# and
e) &he ob+ect must be formally o/ered in
evidence.
CATEGORIES OF OB,ECT EVIDENCE
=or purposes of authentication of an ob+ect or for
laying the foundation for the e'hibit, ob+ect
evidence may be classifed into the following"
") Eni(ue I%&ects . Ab+ect that have readily
identifable mar2s (i:e seri" nu$%er of "
c"i%re 95 !isto);
%) I%&ects ,"'e Eni(ue / Ab+ects that are
made readily identifable (i:e " t+!ic"
:nife, )itness $"+ i'entif+ %+ !"cin3
$"r:s on it); and
c) -on/Eni(ue I%&ects / Ab+ects with no
identifying mar2s and cannot be mar2ed
(i:e 'ro! of %oo', oi, "n' 'ru3s, the
!ro!onent $ust est"%ish " ch"in of
custo'+).
DEMONSTRATIVE EVIDENCE
?emonstrative evidence is tangible evidence that
merely illustrates a matter of importance in the
litigation. !ommon types of demonstrative
evidence include photographs, motion pictures
and recordings, '.ray pictures, scientifc tests,
demonstrations and e'periments, maps,
diagrams, models, summaries, and other
materials created especially for the litigation.
n contrast to demonstrative evidence, ob+ect
evidence is a tangible ob+ect that played some
actual role in the matter that gave rise to the
litigation. =or instance, the 2nife used in the
altercation that forms the basis for the lawsuit.
&he foundation for demonstrative evidence does
not involve showing that the ob+ect was the one
used in the underlying event. ,ather, the
foundation generally involves showing that the
demonstrative ob+ect fairly represents or
illustrates what it is alleged to illustrate.
VIEW OF AN OB,ECT OR SCENE
&he inspection may be made inside or outside the
courtroom. An inspection or view outside the
courtroom should be made in the presence of the
parties or at least with previous notice to them. t
is error for the +udge for e'ample, to go alone to
the land in -uestion, or to the place where the
crime was committed and ta2e a view without the
previous 2nowledge of the parties. Such
inspection or view is part of the trial since
evidence is thereby being received.
C%AIN OF CUSTODY IN RELATION TO
SECTION 21 OF T%E COMPRE%ENSIVE
DANGEROUS DRUGS ACT OF 2002
&he purpose of chain of custody is to guaranty
the integrity of the physical evidence and to
prevent the introduction of evidence which is not
authentic.
&he 3?9A shall ta2e charge and have custody of
all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential
175
chemicals, as well as instrumentsLparaphernalia
andLor laboratory e-uipment so confscated,
sei6ed andLor surrendered, for proper disposition
in the following manner"
%) &he apprehending team having initial
custody and control of the drugs shall,
immediately after sei6ure and
confscation, physically inventory and
photograph the same in the presence of
the accused and any elected public o5cial
who shall be re-uired to sign the copies of
the inventory and be given a copy thereof#
() 0ithin (* hours upon confscationLsei6ure,
the same shall be submitted to the 3?9A
=orensic Gaboratory for a -ualitative and
-uantitative e'amination#
)) A certifcation of the forensic laboratory
e'amination results, which shall be done
under oath by the forensic laboratory
e'aminer, shall be issued within (* hours
after the receipt of the sub+ect itemLs#
*) After the fling of the criminal case, the
!ourt shall, within J( hours, conduct an
ocular inspection of the confscated,
sei6ed andLor surrendered dangerous
drugs, plant sources of dangerous drugs,
and controlled precursors and essential
chemicals, including the instrumentsL
paraphernalia andLor laboratory
e-uipment, and through the 3?9A shall
within (* hours thereafter proceed with
the destruction or burning of the same, in
the presence of the accused or the
personLs from whom such items were
confscated andLor sei6ed, or hisLher
representative or counsel, a
representative from the media and the
?A:, civil society groups and any elected
public o5cial.
5) &he $oard shall then issue a sworn
certifcation as to the fact of destruction or
burning of the sub+ect itemLs which,
together with the representative sampleLs
in the custody of the 3?9A, shall be
submitted to the court having +urisdiction
over the case# and
8) &he alleged o/ender or hisLher
representative or counsel shall be allowed
to personally observe all of the above
proceedings and hisLher presence shall not
constitute an admission of guilt. n case
the said o/ender or accused refuses or
fails to appoint a representative after due
notice in writing to the accused or hisLher
counsel within J% hours before the actual
burning or destruction or the evidence in
-uestion, the SA: shall appoint a member
of the 3AA to represent the former#
J) After the promulgation and +udgment in
the criminal case wherein the
representative sampleLs was presented as
evidence in court, the trial prosecutor shall
inform the $oard of the fnal termination of
the case and, in turn, shall re-uest the
court for leave to turn over the said
representative sampleLs to the 3?9A for
proper disposition and destruction within
(* hours from receipt of the same.
RULE ON DNA EVIDENCE .A=M= NO= 0@*11*6*
SC0
5otes?
?<A report is a documentary evidence
?<A testing order is e'ecutory, unless
there is an in+unction
&he ,ule on ?<A 9vidence is the primary
rule to be applied whenever ?<A evidence
is o/ered, used or proposed to be o/ered
or used as evidence in criminal and civil
actions and special proceedings.
MEANING OF DNA
?<A means deo'yribonucleic acid, which is the
chain of molecules found in every nucleated cell
of the body. &he totality of an individual@s ?<A is
uni-ue for the individual, e'cept identical twins.
?<A evidence constitutes the totality of the ?<A
profles, results and other genetic information
directly generated from ?<A testing of biological
samples.
DNA 9-2Hle means genetic information derived
from ?<A testing of a biological sample obtained
from a person, which biological sample is clearly
identifable as originating from that person#
DNA 'es'"(: means verifed and credible
scientifc methods which include the e'traction of
?<A from biological samples, the generation of
?<A profles and the comparison of the
information obtained from the ?<A testing of
biological samples for the purpose of
determining, with reasonable certainty, whether
or not the ?<A obtained from two or more
distinct biological samples originates from the
same person (direct identifcation) of if the
biological samples originate from related persons
(2inship analysis).
APPLICATION FOR DNA TESTING ORDER
176
&he appropriate court may, at any time, either
$otu !ro!io or on application of any person who
has a legal interest in the matter in litigation,
order a ?<A testing. Such order shall issue after
due hearing and notice to the parties upon a
showing of the following"
a) A biological sample e'ists that is relevant
to the case#
b) &he biological sample"
%) 0as not previously sub+ected to the
type of ?<A testing now re-uested#
or
() 0as previously sub+ected to ?<A
testing but the results may re-uire
confrmation for good reasons#
c) &he ?<A testing uses a scientifcally valid
techni-ue#
d) &he ?<A testing has the scientifc
potential to produce new information that
is relevant to the proper resolution of the
case# and
e) &he e'istence of other factors, if any,
which the court may consider as
potentially a/ecting the accuracy of
integrity of the ?<A testing.
&his rule shall not preclude a ?<A testing, without
need of prior court order, at the behest of any
party, including law enforcement agencies, before
a suit or proceeding is commenced.
POST*CONVICTION DNA TESTINGJ REMEDY
P2s'*12()"1'"2( DNA 'es'"(: may be available,
without need of prior court order, to the
prosecution or any person convicted by fnal and
e'ecutory +udgment provided that
a) a biological sample e'ists,
b) such sample is relevant to the case,
and
c) the testing would probably result in the
reversal or modifcation of the
+udgment of conviction.
,emedy . &he convict or the prosecution may fle
for a writ of habeas corpus in the court of origin if
he results of the post.conviction ?<A testing are
favorable to the convict. n case the court, after
due hearing fnds the petition to be meritorious, it
shall reverse or modify the +udgment of
conviction and order the release of the convict,
unless continued detention is +ustifed for a lawful
cause.
ASSESSMENT OF PROBATIVE VALUE OF
DNA EVIDENCE AND ADMISSIBILITY
&he following are the guidelines to be used in
assessing the probative value of the ?<A
evidence"
a) 4ow the samples were collected#
b) 4ow they were handled#
c) &he possibility of contamination of the
samples#
d) &he procedure followed in analy6ing the
samples#
e) 0hether the proper standards and
procedures were followed in conducting
the tests# and
f) &he -ualifcation of the analyst who
conducted the test.
&he determination of the probative value of the
?<A evidence rests upon the sound +udicial
assessment ta2ing into considerations the
following matters"
a) &he chair of custody, including how the
biological samples were collected, how
they were handled, and the possibility of
contamination of the samples#
b) &he ?<A testing methodology, including
the procedure followed in analy6ing the
samples, the advantages and
disadvantages of the procedure, and
compliance with the scientifcally valid
standards in conducting the tests#
c) &he forensic ?<A laboratory, including
accreditation by any reputable standards.
setting institution and the -ualifcation of
the analyst who conducted the tests. f the
laboratory is not accredited, the relevant
e'perience of the laboratory in forensic
casewor2 and credibility shall be properly
established# and
d) &he reliability of the testing result, as
herein after provided.
&he provisions of the ,ules of !ourt concerning
the appreciation of evidence shall apply
suppletorily.
RULES ON EVALUATION OF RELIABILITY OF
T%E DNA TESTING MET%ODOLOGY
n evaluating whether the ?<A testing
methodology is reliable, the court shall consider
the following"
a) &he falsifability of the principles or
methods used, that is, whether the theory
or techni-ue can be and has been tested#
b) &he sub+ection to peer review and
publication of the principles or methods#
c) &he general acceptance of the principles
or methods by the relevant scientifc
community#
177
d) &he e'istence and maintenance of
standards and controls to ensure the
correctness of data generated#
e) &he e'istence of an appropriate reference
population database# and
f) &he general degree of confdence
attributed to mathematical calculations
used in comparing ?<A profles and the
signifcance and limitation of statistical
calculations used in comparing ?<A
profles.
DOCUMENTARY EVIDENCE
?ocumentary evidence is evidence supplied by
written instruments, or derived from conventional
symbols, such as letters, by which ideas are
represented on material substances# documents
produced for the inspection of the court or +udge.
t includes boo2s, papers accounts and the li2e.
?ocuments as evidence consist of )ritin3 or "n+
$"teri" (not only writing) containing letters,
words, numbers, fgures, symbols or other modes
of written e'pressions o/ered #s 9-228 28 '7e"-
12('e('s=
RE<UISITES FOR ADMISSIBILITY
a) &he document must be relevant to the fact
in issue
b) &he document must be competent
c) &he document must be authenticated
before it is admitted
d) &he authentication must be made by a
competent witness# and
e) &he document must be formally o/ered in
evidence.
BEST EVIDENCE RULE
MEANING OF T%E RULE
t re-uires the highest grade of evidence
obtainable to prove a disputed fact. t cannot be
invo2ed unless '7e 12('e('s 28 $-"'"(: "s '7e
su&;e1' 28 ;u!"1"#l "(Fu"-5 , in which case the
best evidence is the original writing itself.
&he best evidence refers to that which the law or
the rules consider as the best evidence to prove
the fact in dispute. &he best evidence is the
evidence which the case in its nature is
susceptible and which is within the power of the
party to produce. 9vidence cannot be received
which indicates on its face that it is secondary,
that is, merely substitutionary in its nature, and
that the original source of information is in
e'istence and accessible. &he underlying purpose
is the prevention of fraud.
W%EN APPLICABLE
0hen the sub+ect of in-uiry is the contents of a
document, no evidence shall be admissible other
than the original document itself, e'cept in the
following cases"
a) 0hen the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the
o/eror#
b) 0hen the original is in the custody or
under the control of the party against
whom the evidence is o/ered, and the
latter fails to produce it after reasonable
notice#
c) 0hen the original consists of numerous
accounts or other documents which
cannot be e'amined in court without great
loss of time and the fact sought to be
established from them is only the general
result of the whole# and
d) 0hen the original is a public record in the
custody of a public o5cer or is recorded in
a public o5ce.
t applies only to documentary evidence.
MEANING OF ORIGINAL
&he original does not necessarily mean the one
frst written# its meaning is relative only to the
particular issue. &he original is the document
whose contents are to be proved.
Sec. 9, *ue 13. has clarifed what constitutes the
original of a document"
a) &he original of a document is one the
contents of which are the sub+ect of
in-uiry#
b) 0hen a document is in two or more copies
e'ecuted at or about the same time, with
identical contents, all such copies are
e-ually regarded as originals# and
c) 0hen an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
transaction, all the entries are li2ewise
e-ually regarded as originals.
RE<UISITES FOR INTRODUCTION OF
SECONDARY EVIDENCE
&he o/eror must satisfy frst the re-uirements for
laying the basis for the presentation of secondary
evidence. Gaying the basis involves e'plaining to
the satisfaction of the court the reason for the
178
inability to o/er the original of the document, in
the following"
%) &he e'ecution or e'istence of the original#
() &he loss and destruction of the original or
its nonproduction in court#
)) >navailability of the original is not due to
bad faith on the part of the o/eror.
f the o/eror has successfully laid the basis for
the presentation of the secondary evidence, then
the original need not be presented. 4owever, one
must observe the order in which the secondary
evidence is to be o/ered. &his is because not
every secondary evidence can be o/ered. &he
following order must therefore, be observed"
a) A copy of the original#
b) f there is no copy, then a recital of its
contents in some authentic document#
c) n default of hereof, by the testimony of
witnesses in the order stated.
W7e( 2-":"(#l !21ue(' "s u(#)#"l#&le .
0hen the original document has been lost or
destroyed, or cannot be produced in court, the
o/eror, upon proof of its e'ecution or e'istence
and the cause of its unavailability without bad
faith on his part, may prove its contents by a
copy, or by a recital of its contents in some
authentic document, or by the testimony of
witnesses in the order stated.
W7e( 2-":"(#l !21ue(' "s "( #!)e-se
9#-'5Ss 1us'2!5 2- 12('-2l . f the document is
in the custody or under the control of the adverse
party, he must have reasonable notice to produce
it. f after such notice and after satisfactory proof
of its e'istence, he fails to produce the document,
secondary evidence may be presented as in the
case of its loss.
E)"!e(1e #!"ss"&le $7e( 2-":"(#l
!21ue(' "s # 9u&l"1 -e12-! . 0hen the
original of a document is in the custody of a
public o5cer or is recorded in a public o5ce, its
contents may be proved by a certifed copy
issued by the public o5cer in custody thereof.
RULES ON ELECTRONIC EVIDENCE
A=M= NO= 01*7*01*SC0
MEANING OF ELECTRONIC EVIDENCEJ
ELECTRONIC DATA MASSAGE
9lectronic evidence is that which use of
electronic data message as evidence.
9lectronic data message refers to information
generated, sent, received or stored by
electronic, optical or similar means.
9lectronic documents as functional e-uivalent
of paper.based documents. 0henever a rule
of evidence to the term of writing, document,
record, instrument, memorandum or any
other form of writing, such term shall be
deemed to include an electronic document.
Ele1'-2("1 !21ue(' refers to information or
the representation of information, data, fgures,
symbols or other modes of written e'pression,
described or however represented, by which a
right is established or an obligation e'tinguished,
or by which a fact may be proved and a5rmed,
which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. t
includes digitally signed documents and any
print.out or output, readable by sight or other
means, which accurately reIects the electronic
data message or electronic document.
&he term Melectronic documentN may be
used interchangeably with electronic data
message.
PROBATIVE VALUE OF ELECTRONIC
DOCUMENTS OR EVIDENTIARY WEIG%TJ
MET%OD OF PROOF
An electronic document is admissible in evidence
if it complies with the rules on admissibility
prescribed by the ,ules and related laws and is
authenticated in the manner prescribed by the
,ules on 9lectronic 9vidence.
n assessing the evidentiary weight of an
electronic document, the following factors may be
considered"
a) &he reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited
to input and output procedures, controls,
tests and chec2s for accuracy and
reliability of the electronic data message
or document, in the light of all the
circumstances as well as any relevant
agreement#
b) &he reliability of the manner in which its
originator was identifed#
c) &he integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors#
d) &he familiarity of the witness or the
person who made the entry with the
communication and information system#
179
e) &he nature and -uality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based# or
f) Ather factors which the court may
consider as a/ecting the accuracy or
integrity of the electronic document or
electronic data message.
MET%OD OF PROOFB #N!#)"' 28 e)"!e(1e *
All matters relating to the admissibility and
evidentiary weight of an electronic document
may be established by an a5davit stating facts of
direct personal 2nowledge of the a5ant or based
on authentic records. &he a5davit must
a5rmatively show the competence of the a5ant
to testify on the matters contained therein.
MET%OD OF PROOFB 1-2ss*e?#"(#'"2( 28
!e92(e(' * &he a5ant shall be made to a5rm
the contents of the a5davit in open court and
may be cross.e'amined as a matter of right by
the adverse party.
AUT%ENTICATION OF ELECTRONIC
DOCUMENTS AND ELECTRONIC
SIGNATURES
&he person see2ing to introduce an electronic
document in any legal proceeding has the burden
of proving its authenticity.
$efore any private electronic document o/ered as
authentic is received in evidence, its authenticity
must be proved by any of the following means"
a) $y evidence that it had been digitally
signed by the person purported to have
signed the same#
b) $y evidence that other appropriate
security procedures or devices as may be
authori6ed by the Supreme !ourt or by
law for authentication of electronic
documents were applied to the document#
or
c) $y other evidence showing its integrity
and reliability to the satisfaction of the
+udge.
A document electronically notari6ed in
accordance with the rules promulgated by the
Supreme !ourt shall be considered as a public
document and proved as a notarial document
under the ,ules of !ourt.
An electronic signature or a digital signature
authenticated in the manner prescribed
hereunder is inadmissible in evidence as the
functional e-uivalent of the signature or a person
on a written document.
An electronic signature may be authenticated in
any of the following manners"
a) $y evidence that a method or process was
utili6ed to establish a digital signature and
verify the same#
b) $y any other means provided by law# or
c) $y any other means satisfactory to the
+udge as establishing the genuineness of
the electronic signature.
>pon the authentication of an electronic
signature, it shall be presumed that"
a) &he electronic signature is that of the
person to whom it correlates#
b) &he electronic signature was a5'ed by
that person with the intention of
authenticating or approving the electronic
document to which it is related or to
indicate such personDs consent to the
transaction embodied therein# and
c) &he methods or processes utili6ed to a5'
or verify the electronic signature without
error or fault.
>pon the authentication of a digital signature,
it shall be presumed, in addition to those
mentioned in the immediately preceding
section, that"
a) &he information contained in a
certifcate is correct#
b) &he digital signature was created
during the operational period of a
certifcate#
c) &he message associated with a digital
signature has not been altered from
the time it was signed# and
d) A certifcate had been issued by the
certifcation authority indicated
therein.
ELECTRONIC DOCUMENTS AND T%E
%EARSAY RULE
An electronic document shall be regarded as the
e-uivalent of an original document under the
$est 9vidence ,ule if it is a printout or output
readable by sight or other means, shown to
reIect the data accurately.
0hen a document is in two or more copies
e'ecuted at or about the same time with identical
contents, or is a counterpart produced by the
same impression as the original, or from the
same matri', or by mechanical or electronic re.
recording, or by chemical reproduction, or by
other e-uivalent techni-ues which accurately
180
reproduces the original, such copies or duplicates
shall be regarded as the e-uivalent of the
original.
<otwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
e'tent as the original if"
a) A genuine -uestion is raised as to the
authenticity of the original# or
b) n the circumstances it would be un+ust or
ine-uitable to admit a copy in lieu of the
original.
A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses, made by electronic, optical or other
similar means at or near the time of or from
transmission or supply of regular course of
conduct of a business activity, and such was the
regular practice to ma2e the memorandum,
report, record, or data compilation by electronic,
optical or similar means, all of which are shown
by the testimony of the custodian or other
-ualifed witnesses, is e'cepted from the rule on
hearsay evidence.
&he presumption may be overcome by evidence
of the untrustworthiness of the source of
information of the method or circumstances of
the preparation, transmission or storage thereof.
AUDIO/ P%OTOGRAP%IC/ VIDEO AND
EP%EMERAL EVIDENCE
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided it shall be shown, presented or
displayed to the court and shall be identifed,
e'plained or authenticated by the person who
made the recording or by some other person
competent to testify on the accuracy thereof.
9phemeral electronic communications shall be
proven by the testimony of a person who was a
party to the same or has personal 2nowledge
thereof. n the absence or unavailability of such
witnesses, other competent evidence may be
admitted.
f the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of ,ule 5 (authentication of electronic
documents) shall apply.
9phemeral electronic communication refers to
telephone conversations, te't messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of
communication the evidence of which is not
recorded or retained.
PAROL EVIDENCE RULE .RULE 1300
APPLICATION OF T%E PAROL EVIDENCE
RULE
0hen the terms of an agreement have been
reduced to writing, it is considered as containing
all the terms agreed upon, and there can be
between the parties and their successors in
interest, no evidence of such terms other than
the contents of the written agreement.
t see2s to preserve what the parties have
reduced in writing and prohibits evidence "iun'e
or oral testimonial evidence from being presented
to vary the terms of, or add stipulations to, the
written agreement. n other words, any oral
evidence of an agreement should be e'cluded
when the e'isting agreement is already in writing.
Aral testimony cannot prevail over a written
agreement of the parties, the purpose being to
give stability to written agreements and to
remove the temptation and possibility of per+ury,
which would be a/orded if parol evidence were
admissible.
&he rule is based on the presumption that the
parties have made the written instrument the
only repository and memorial of the truth and
whatever is not found in the instrument must
have been waived and abandoned by the parties.
4ence, parol evidence cannot serve the purpose
of incorporation into the contract additional
contemporaneous conditions which are not
mentioned at all in the writing, unless the case
falls under any of the e'ceptions to the rule.
W%EN PAROLE EVIDENCE CAN BE
INTRODUCED
ntroducing parol evidence means o/ering
e'trinsic or e'traneous evidence that would
modify, e'plain or add to the terms of the written
agreement. 3arol evidence can be introduced as
long as the pleader puts in issue in the pleading
any of the matters set forth in the rule such as"
a) An intrinsic ambiguity, mista2e or
imperfection in the written agreement#
b) &he failure of the written agreement to
e'press the true intent and agreement of
the parties thereto#
c) &he validity of the written agreement# or
181
d) &he e'istence of other terms agreed to by
the parties or their successors in interest
after the e'ecution of the written
agreement.
&he terms \agreement\ includes wills.
BEST EVIDENCE
RULE
PAROL EVIDENCE
RULE
&he issue is contents
of a writing.
&here is no issue as to
contents of a writing.
Secondary evidence
is o/ered to prove
the contents of a
writing, which is not
allowed unless the
case falls under any
of the e'ceptions.
&he purpose for the
o/er of parol evidence
is to change, vary,
modify, -ualify, or
contradict the terms of
a complete written
agreement, which is not
allowed unless the case
falls under any of the
e'ceptions.
9stablishes
preference for the
original document
over a secondary
evidence thereof.
<ot concerned with the
primacy of evidence but
presupposes that the
original is available.
3recludes the
admission of
secondary evidence
if the original
document is
available.
3recludes the admission
of other evidence to
prove the terms of a
document other than
the contents of the
document itself.
!an be invo2ed by
any litigant to an
action whether or
not said litigant is a
party to the
document involved.
!an be invo2ed only be
the parties to the
document and their
successors in interest.
Applies to all forms
of writing.
Applies to written
agreements (contracts)
and wills.
AUT%ENTICATION AND PROOF OF
DOCUMENTS .RULE 1320
MEANING OF AUT%ENTICATION *
Authentication is the process of evidencing the
due e'ecution and genuineness of a document.
9vidence when presented in court is not
presumed authentic. &he general rule therefore is
to prove its authenticity unless it is self.
authenticating.
PUBLIC VERSUS PRIVATE DOCUMENTS
=or the purpose of their presentation evidence,
documents are either public or private. 3ublic
documents are"
a) &he written o5cial acts, or records of the
o5cial acts of the sovereign authority,
o5cial bodies and tribunals, and public
o5cers, whether of the 3hilippines, or of a
foreign country#
b) ?ocuments ac2nowledge before a notary
public e'cept last wills and testaments#
and
c) 3ublic records, 2ept in the 3hilippines, of
private documents re-uired by law to the
entered therein.
All other writings are private. ((Fa)
W%EN A PRIVATE WRITING RE<UIRES
AUT%ENTICATIONJ PROOF OF A PRIVATE
WRITING
A private writing is not self.authenticating. t
re-uires proof of their due e'ecution and
authentication before they can be received in
evidence. &he due e'ecution and authenticity
must be proved either"
a) $y anyone who saw the document
e'ecuted or written# or
b) $y evidence of the genuineness of the
signature or handwriting of the ma2er
Any other private document need only be
identifed as that which it is claimed to be.
W%EN EVIDENCE OF AUT%ENTICITY OF A
PRIVATE WRITING IS NOT RE<UIRED
.ANCIENT DOCUMENTS0
%) 0hen the genuineness and due e'ecution
of the document is admitted by the
adverse party#
() 0hen such genuineness and due
e'ecution are immaterial to the issue#
)) 0hen the document is an ancient
document.
RE<UISITE OF AN ANCIENT DOCUMENT
%) ;ore than thirty ()F) years old#
() =ound in the proper custody#
)) >nblemished by any alteration or by any
circumstance of suspicion# and
*) t must on its face appear to be genuine.
%OW TO PROVE GENUINENESS OF A
%ANDWRITING
&he handwriting of a person may be proved by"
a) any witness who believes it to be the
handwriting of such person because he
has seen the person write, or
182
b) has seen writing purporting to be his upon
which the witness has acted or been
charged, and has thus ac-uired 2nowledge
of the handwriting of such person.
9vidence respecting the handwriting may also be
given by a comparison, made by the witness or
the court, with writings admitted or treated as
genuine by the party against whom the evidence
is o/ered, or proved to be genuine to the
satisfaction of the +udge.
<ote" &he identifcation of handwriting should
not rest, therefore, on the apparent similarity
or dissimilarity of one feature but should be
based on the e'amination of all the basic
characteristics of the handwriting under study.
PUBLIC DOCUMENTS AS EVIDENCE
3ublic documents are"
a) &he written o5cial acts, or records of the
o5cial acts of the sovereign authority,
o5cial bodies and tribunals, and public
o5cers, whether of the 3hilippines, or of a
foreign country#
b) ?ocuments ac2nowledged before a notary
public e'cept last wills and testaments#
and
c) 3ublic records, 2ept in the 3hilippines, of
private documents re-uired by law to be
entered therein.
3ublic documents are of two classes"
a) &hose issued by competent public o5cials
by reason of their o5ce, and
b) &hose e'ecuted by private individuals
which are authenticated by notaries
public.
?ocuments consisting of entries in public records
made in the performance of a duty by a public
o5cer are 9-"# 8#1"e e)"!e(1e of the facts
therein stated. All other public documents are
evidence, even against a third person, of the fact
which gave rise to their e'ecution and of the date
of the latter.
PROOF OF OFFICIAL RECORD
&he record of public documents (o5cial acts),
when admissible for any purpose, may be
evidenced
a) by an o5cial publication thereof or
b) by a copy attested by the o5cer having
the legal custody of the record, or by his
deputy, and accompanied, if the record is
not 2ept in the 3hilippines, with a
certifcate that such o5cer has the
custody.
f the o5ce in which the record is 2ept is in a
foreign country, the certifcate may be made by a
secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or
by any o5cer in the foreign service of the
3hilippines stationed in the foreign country in
which the record is 2ept, and authenticated by
the seal of his o5ce.
ATTESTATION OF A COPY
0henever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance, that the
copy is a correct copy of the original, or a specifc
part thereof, as the case may be. &he attestation
must be under the o5cial seal of the attesting
o5cer, if there be any, or if he be the cler2 of a
court having a seal, under the seal of such court.
PUBLIC RECORD OF A PRIVATE DOCUMENT
An authori6ed public record of a private
document may be proved by the original record,
or by a copy thereof, attested by the legal
custodian of the record, with an appropriate
certifcate that such o5cer has the custody.
PROOF OF LAC+ OF RECORD
A written statement signed by an o5cer having
the custody of an o5cial record or by his deputy
that after diligent search no record or entry of a
specifed tenor is found to e'ist in the records of
his o5ce, accompanied by a certifcate as above
provided, is admissible as evidence that the
records of his o5ce contain no such record or
entry.
%OW A ,UDICIAL RECORD IS IMPEAC%ED
Any +udicial record may be impeached by
evidence of"
a) want of +urisdiction in the court or +udicial
o5cer,
b) collusion between the parties, or
c) fraud in the party o/ering the record, in
respect to the proceedings
which must be clear, convincing and more
than merely preponderant, in order to
overcome the presumption of regularity in the
performance of o5cial duties and the
presumption of regularity of +udicial
proceedings, and the burden of proof lies on
the part of the party who challenges the
validity of +udicial records.
183
PROOF OF NOTARIAL DOCUMENTS
A document ac2nowledged before a notary public
becomes a public instrument and renders it
admissible in court without further proof of its
authenticity.
%OW TO EXPLAIN ALTERATIONS IN A
DOCUMENT
&he party producing a document as genuine
which has been altered and appears to have been
altered after its e'ecution, in a part material to
the -uestion in dispute, must account for the
alteration.
4e may show that the alteration was made by
another, without his concurrence, or was made
with the consent of the parties a/ected by it, or
was otherwise properly or innocently made, or
that the alteration did not change the meaning or
language of the instrument. f he fails to do that
the document shall not be admissible in
evidence.
DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE
?ocuments written in an uno5cial language shall
not be admitted as evidence, unless
accompanied with a translation into 9nglish or
=ilipino. &o avoid interruption of proceedings,
parties or their attorneys are directed to have
such translation prepared before trial.
TESTIMONIAL EVIDENCE
<UALIFICATIONS OF A WITNESS
A prospective witness must show that he has the
following abilities"
%) &o Abserve 7 the testimonial -uality of
perception
() &o ,emember 7 the testimonial -uality of
memory
)) &o ,elate 7 the testimonial -uality of
narration
*) &o ,ecogni6e a duty to tell the truth 7 the
testimonial -uality of sincerity.
All persons who can perceive, and perceiving,
can ma2e 2nown their perception to others,
may be witnesses. ,eligious or political belief,
interest in the outcome of the case, or
conviction of a crime unless otherwise
provided by law, shall not be a ground for
dis-ualifcation.
Goss of the perceptive sense after the
occurrence of the fact does not a/ect the
admissibility of the testimony.
A blind man can testify to what he saw prior
to his blindness or a deaf man, to what he
heard prior to his deafness. $ut a person
incapable of perception is !ro t"nto incapable
of testifying.
A witness may have been capable of
perceiving, yet incapable of narration. 4e may
have no powers of speech, and have no
means of e'pressing himself by signs. 4e may
have become insane since the occurrence he
is called upon to relate. A person incapable of
narration is !ro t"nto incapable of testifying.
COMPETENCY VERSUS CREDIBILITY
OF A WITNESS
!ompetency of a witness refers to the basic
-ualifcations of a witness as his capacity to
perceive and to communicate the same to others.
t also includes the absence of any of the
dis-ualifcations imposed upon a witness.
!redibility of the witness refers to the
believability of the witness and has nothing to do
with the law or the rules. t refers to the weight
and the trustworthiness or reliability of the
testimony.
DIS<UALIFICATIONS OF WITNESSES
ABSOLUTE DIS<UALIFICATION
a) &hose who cannot perceive.
b) &hose who can perceive but cannot ma2e
their perception 2nown.
c) Me('#ll5 "(1#9#1"'5 7 &hose whose
mental condition, at the time of their
production for e'amination, is such that
they are incapable of intelligently ma2ing
2nown their perception to others.
d) ;entally immaturity 7 !hildren whose
mental maturity is such as to render them
incapable of perceiving the facts
respecting which they are e'amined and
of relating them truthfully.
e) M#-"'#l !"sFu#l"H1#'"2( 7 ?uring their
marriage, neither the husband nor the
wife may testify for or against the other
without the consent of the a/ected
spouse, e'cept in a civil case by one
against the other, or in a criminal case for
a crime committed by one against the
184
other or the latterVs direct descendants or
ascendants.
f) 3arental and flial privilege .. <o person
may be compelled to testify against his
parents, other direct ascendants, children
or other direct descendants.
RELATIVE DIS<UALIFICATION
.#0 DEAD MANES STATUTE 7 3arties or
assignors of parties to a case, or persons
in whose behalf a case is prosecuted,
against an e'ecutor or administrator or
other representative of a deceased
person, or against a person of unsound
mind, upon a claim or demand against the
estate of such deceased person or against
such person of unsound mind, cannot
testify as to any matter of fact occurring
before the death of such deceased person
or before such person became of unsound
mind.
.&0 DIS<UALIFICATION BY REASON OF
PRIVILEGED COMMUNICATION
%. &he husband or the wife, during or
after the marriage, cannot be
e'amined without the consent of
the other as to any communication
received in confdence by one from
the other during the marriage
e'cept in a civil case by one
against the other, or in a criminal
case for a crime committed by one
against the other or the latterVs
direct descendants or ascendants#
(. An attorney cannot, without the
consent of his client, be e'amined
as to any communication made by
the client to him, or his advice
given thereon in the course of, or
with a view to, professional
employment, nor can an attorneyVs
secretary, stenographer, or cler2
be e'amined, without the consent
of the client and his employer,
concerning any fact the 2nowledge
of which has been ac-uired in such
capacity#
). A person authori6ed to practice
medicine, surgery or obstetrics
cannot in a civil case, without the
consent of the patient, be
e'amined as to any advice or
treatment given by him or any
information which he may have
ac-uired in attending such patient
in a professional capacity, which
information was necessary to
enable him to act in that capacity,
and which would blac2en the
reputation of the patient#
*. A minister or priest cannot, without
the consent of the person ma2ing
the confession, be e'amined as to
any confession made to or any
advice given by him in his
professional character in the
course of discipline en+oined by the
church to which the minister or
priest belongs#
5. A public o5cer cannot be
e'amined during his term of o5ce
or afterwards, as to
communications made to him in
o5cial confdence, when the court
fnds that the public interest would
su/er by the disclosure.
.10 NEWSMANES PRIVILEGE .. 0ithout
pre+udice to his liability under the civil and
criminal laws, the publisher, editor,
columnist or duly accredited reporter of
any newspaper, maga6ine or periodical of
general circulation cannot be compelled to
reveal the source of any news.report or
information appearing in said publication
which was related in confdence to such
publisher, editor or reporter unless the
court or a 4ouse or committee of
!ongress fnds that such revelation is
demanded by the security of the State (,A
%*JJ)#
.!0 BAN+ DEPOSITS .. All deposits of
whatever nature with ban2s or ban2ing
institutions in the 3hilippines including
investments in bonds issued by the
Bovernment of the 3hilippines, its political
subdivisions and its instrumentalities, are
hereby considered as of an absolutely
confdential nature and may not be
e'amined, in-uired or loo2ed into by any
person, government o5cial, bureau or
o5ce, e'cept upon written permission of
the depositor, or in cases of impeachment,
or upon order of a competent court in
cases of bribery or dereliction of duty of
public o5cials, or in cases where the
money deposited or invested is the
sub+ect matter of the litigation (,A %*F5).
.e0 SANCTITY OF T%E BALLOT 7 voters
may not be compelled to disclose for
whom they voted.
.80 TRADE SECRETS
185
.:0 INFORMATION CONTAINED IN TAX
RETURNS (,A (FJF, as amended by ,A
((%().
DIS<UALIFICATION BY REASON OF MENTAL
CAPACITY OR IMMATURITY
&he following persons cannot be witnesses"
a) &hose whose mental condition, at the time
of their production for e'amination, is
such that they are incapable of
intelligently ma2ing 2nown their
perception to others#
b) !hildren whose mental maturity is such as
to render them incapable of perceiving the
facts respecting which they are e'amined
and of relating them truthfully.
,egardless of the nature or cause of mental
disability, the test of competency to testify is as
to whether the individual has su5cient
understanding to appreciate the nature and
obligation of an oath and su5cient capacity to
observe and describe correctly the facts in regard
to which he is called to testify.
$asic re-uirements of a child@s competency as a
witness"
a) !apacity of observation#
b) !apacity of recollection#
c) !apacity of communication.
n ascertaining whether a child is of su5cient
intelligence according to the foregoing
re-uirements, it is settled rule that the trial
court is called upon to ma2e such
determination.
DIS<UALIFICATION BY REASON OF
MARRIAGE .SPOUSAL IMMUNITY0
As a general rule, during their marriage, neither
the husband nor the wife may testify for or
against the other without the consent of the
a/ected spouse. &he re-uisites of this rule are
the following"
%) &hat the spouse for or against whom the
testimony is o/ered is a party to the case#
() &hat the spouses are legally married (valid
until annulled)#
)) &estimony is o/ered during the e'istence
of marriage#
*) &he case is not one of the e'ceptions
provided in the rule.
&he e'ceptions are the following"
%) 0here the testimony was made outside
the marriage#
() n a civil case by one spouse against the
other# or
)) n a criminal case for a crime committed
by one spouse against the other or the
latter@s direct descendant or ascendants.
DIS<UALIFICATION BY REASON OF DEAT%
OR INSANITY OF ADVERSE PARTY
.SURVIVORS%IP OR DEAD MANTS STATUTE0
&his rule applies only to a civil case or a special
proceeding. &he following are the elements for
the application of the rule"
a) &he plainti/ is the person who has a claim
against the estate of the decedent or
person of unsound mind#
b) &he defendant in the case is the e'ecutor
or administrator or a representative of the
deceased or the person of unsound mind#
c) &he suit is upon a claim by the plainti/
against the estate of said deceased or
person of unsound mind#
d) &he witness is the plainti/, or an assignor
of that party, or a person in whose behalf
the case is prosecuted# and
e) &he sub+ect of the testimony is as to any
matter of fact occurring before the death
("nte ite$ $ot"$) of such deceased
person or before such person became of
unsound mind.
DIS<UALIFICATION BY REASON OF
PRIVILEGED COMMUNICATIONS
BETWEEN %USBAND AND WIFE
&he application of the rule re-uires the presence
of the following elements"
%) &here must be a valid marriage between
the husband and the wife#
() &he privilege is invo2ed with respect to a
confdential communication between the
spouses during said marriage# and
)) &he spouse against whom such evidence
is being o/ered has not given his or her
consent to such testimony.
MARITAL
DIS<UALIFICATION
.SEC= 220
MARITAL
PRIVILEGE .SEC=
240
!an be invo2ed only if one
of the spouses is a party
to the action#
!an be claimed
whether or not the
spouse is a party to
the action#
Applies only if the
marriage is e'isting at the
!an be claimed even
after the marriage
186
time the testimony is
o/ered#
has been dissolved#
!eases upon the death or
either spouse#
!ontinues even after
the termination of
the marriage#
!onstitutes a total
prohibition against any
testimony for or against
the spouse of the witness#
Applies only to
confdential
communications
between the
spouses.
&he prohibition is a
testimony for or against
the other.
&he prohibition is the
e'amination of a
spouse as to matters
related in confdence
to the other spouse.
BETWEEN ATTORNEY AND CLIENT
=or the rule to apply, it is re-uired that"
%) &here is an attorney and client relation#
() &he privilege is invo2ed with respect to a
confdential communication between them
in the course of or with a view to
professional employment# and
)) &he client has not given his consent to the
attorneyDs testimony thereon# or
f the attorney@s secretary, stenographer
or cler2 is sought to be e'amined, that
both the client and the attorney have not
given their consent thereto.
&he rule applies when the attorney has been
consulted in his professional capacity, even if no
fee has been paid therefor. 3reliminary
communications made for the purpose of creating
the attorney.client relationship are within the
privilege. 4owever, if the communications were
not made for the purpose of creating that
relationship, they will not be covered by the
privilege even if thereafter the lawyer becomes
the counsel of the party in a case involving said
statements.
BETWEEN P%YSICIAN AND PATIENT
=or the dis-ualifcation to apply, it is necessary
that"
a) &he physician is authori6ed to practice
medicine, surgery or obstetrics#
b) &he information was ac-uired or the
advice or treatment was given by him in
his professional capacity for the purpose
of treating and curing the patient#
c) &he information, advice or treatment, if
revealed, would blac2en the reputation of
the patient# and
d) &he privilege is invo2ed in a civil case,
whether the patient is a party thereto or
not.
&he privilege does not apply where"
a) &he communication was not given in
confdence#
b) &he communication is irrelevant to the
professional employment#
c) &he communication was made for an
unlawful purpose, as when it is intended
for the commission or concealment of a
crime#
d) &he information was intended to be made
public# or
e) &here was a waiver of the privilege either
by the provisions of contract or law.
&he privilege survives the death of the
patient.
BETWEEN PRIEST AND PENITENT
A minister or priest cannot, without the
consent of the person ma2ing the confession,
be e'amined as to any confession made to or
any advice given by him in his professional
character in the course of discipline en+oined
by the church to which the minister or priest
belongs.
&he communication must be made pursuant
to confessions of sin. 0here the penitent
discussed business arrangements with the
priest, the privilege does not apply.
INVOLVING PUBLIC OFFICERS
&he dis-ualifcation because of privileged
communications to public o5cers re-uires that"
a) t was made to the public o5cer in o5cial
confdence# and
b) 3ublic interest would su/er by the
disclosure of such communications, as in
the case of State secrets. 0here no public
interest would be pre+udiced, this rule
does not apply.
9'ceptions to the rule"
a) 0hat is as2ed is useful evidence to
vindicate the innocence of an accused
person#
b) ?isclosure would lessen the ris2 of false
testimony#
c) ?isclosure is essential to the proper
disposition of the case#
d) &he beneft to be gained by a correct
disposition of the litigation was greater
187
than any in+ury which could inure to the
relation by a disclosure of the information.
PARENTAL AND FILIAL TESTIMONIAL
PRIVILEGE RULE
<o person may be compelled to testify against his
parents, other direct ascendants, children or
other direct descendants.
En'er Art. 215 of the G"$i+ Co'e, the
descendant may be compelled to testify against
his parents and grandparents if such testimony is
indispensable in prosecuting a crime against the
descendant or by one parent against the other.
EXAMINATION OF A WITNESS .RULE 1320
&he e'amination of witnesses presented in a trial
or hearing shall be done in open court, and under
oath or a5rmation. >nless the witness is
incapacitated to spea2, or the -uestion calls for a
di/erent mode of answer, the answers of the
witness shall be given orally.
&he entire proceedings shall be recorded by
means of shorthand or stenotype or by other
means of recording found suitable by the court. A
transcript of the record of the proceedings made
by the o5cial stenographer, stenotypist or
recorder and certifed as correct by him shall be
deemed prima facie a correct statement of such
proceedings.
RIG%TS AND OBLIGATIONS OF A WITNESS
A witness must answer -uestions, although his
answer may tend to establish a claim against
him. 4owever, it is the right of a witness"
%) &o be protected from irrelevant, improper,
or insulting -uestions, and from harsh or
insulting demeanor#
() <ot to be detained longer than the
interests of +ustice re-uire#
)) <ot to be e'amined e'cept only as to
matters pertinent to the issue#
*) <ot to give an answer which will tend to
sub+ect him to a penalty for an o/ense
unless otherwise provided by law# or
5) <ot to give an answer which will tend to
degrade his reputation, unless it be to the
very fact at issue or to a fact from which
the fact in issue would be presumed. $ut a
witness must answer to the fact of his
previous fnal conviction for an o/ense.
ORDER IN T%E EXAMINATION OF AN
INDIVIDUAL WITNESS
&he order in which an individual witness may be
e'amined is as follows"
%) ?irect e'amination by the proponent#
() !ross.e'amination by the opponent#
)) ,e.direct e'amination by the
proponent#
*) ,e.cross.e'amination by the opponent.
5) ,ecalling the witness
DIRECT
EXAMINATION
?irect e'amination is the e'amination.
in.chief of a witness by the party
presenting him on the facts relevant to
the issue.
3urpose is to build up the theory of the
case by eliciting facts about the clientDs
cause of action or defense.
CROSS
EXAMINATION
>pon the termination of the direct
e'amination, the witness may be
cross.e'amined by the adverse party
as to any matters stated in the direct
e'amination, or connected therewith,
with su5cient fullness and freedom to
test his accuracy and truthfulness and
freedom from interest or bias, or the
reverse, and to elicit all important
facts bearing upon the issue.
!ross.e'amination aims to"
a) &est the accuracy and truthfulness
of the witness and his freedom from
interest or bias or the reverse# and
b) 9licit all important facts bearing
upon the issue, not only of those
covered in the direct e'amination
but also on all other matters
relevant to the issueLs pleaded.
188
RE*DIRECT
EXAMINATION
After the cross.e'amination of the
witness has been concluded, he may
be re.e'amined by the party calling
him, to e'plain or supplement his
answers given during the cross.
e'amination. An re.direct
e'amination, -uestions on matters not
dealt with during the cross.
e'amination, may be allowed by the
court in its discretion.
3rincipal ob+ects are"
a) to prevent in+ustice to the witness
and the party who has called him
by a/ording an opportunity to the
witness to e'plain the testimony
given on cross.e'amination,
b) to e'plain any apparent
contradiction or inconsistency in his
statements, and
c) complete the answer of a witness,
or add a new matter which has
been omitted, or correct a possible
misinterpretation of testimony.
RE*CROSS
EXAMINATION
>pon the conclusion of the re.direct
e'amination, the adverse party may
re.cross.e'amine the witness on
matters stated in his re.direct
e'amination, and also on such other
matters as may be allowed by the
court in its discretion.
A witness cannot be recalled without
leave of court, which may be granted
only upon showing of concrete,
substantial grounds.
RECALLING T%E
WITNESS
After the e'amination of a witness by
both sides has been concluded, the
witness cannot be recalled without
leave of the court. &he court will grant
or withhold leave in its discretion, as
the interests of +ustice may re-uire.
Aims to correct or e'plain his prior
testimony# or lay the proper foundation
for his impeachment, but this is
permitted only with the discretion of
the court.
!ross.e'amination of a witness is the absolute
right, not a mere privilege, of the party against
whom he is called# and with regard to the
accused, it is a right granted by the !onstitution.
Sec. 19(2), Art. III thereof provides that the
accused shall en+oy the right to meet the
witnesses face to face.
LEADING AND MISLEADING <UESTIONS
.SEC= 10/ RULE 1320
A -uestion which suggests to the witness the
answer which the e'amining party desires is a
le#!"(: Fues'"2(. t is not allowed, e'cept"
%) An cross e'amination#
() An 3reliminary matters#
)) 0hen there is di5culty in getting direct
and intelligible answers from a witness
who is ignorant, or a child of tender years,
or is of feeble mind, or a deaf.mute#
*) Af an unwilling or hostile witness# or
5) Af a witness who is an adverse party or an
o5cer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party.
8) n all stages of e'amination of a child if
the same will further the interests of
+ustice (Sec. 2., A, ..9/.;/SC).
A "sle#!"(: Fues'"2( is one which
assumes as true a fact not yet testifed to by
the witness, or contrary to that which he has
previously stated. t is not allowed (Sec. 1.).
&he adverse party should ob+ect thereto or
as2 the court to e'punge the answer from the
records, if he has already given his answer.
MET%ODS OF IMPEAC%MENT OF ADVERSE
PARTYES WITNESS
&o impeach means to call into -uestion the
veracity of the witness@s testimony by means of
evidence o/ered for that purpose, or by showing
that the witness is unworthy of belief.
mpeachment is an allegation, supported by
proof, that a witness who has been e'amined is
unworthy of credit.
A witness be impeached by the party against
whom he was called"
a) $y contradictory evidence#
b) $y evidence that his general reputation for
truth, honesty, or integrity is bad# or
c) $y evidence that he has made at other
times statements inconsistent with his
present testimony#
d) $ut not by evidence of particular wrongful
acts, e'cept that it may be shown by the
e'amination of the witness, or the record
of the +udgment, that he has been
convicted of an o/ense.
189
Ather modes of impeachment aside from those
provided by the ,ules are"
a) $y producing the record of his conviction
of an o/ense#
b) $y showing improbability or
unreasonableness of testimony#
c) $y showing bias, pre+udice or hostility#
d) $y prior acts or conduct inconsistent with
his testimony#
e) $y showing social connections, occupation
and manner of living.
f) $y showing interest.
g) $y showing intent and motive.
&he party producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or
hostile only if so declared by the court upon
ade-uate showing of his adverse interest,
un+ustifed reluctance to testify, or his having
misled the party into calling him to the witness
stand. &he unwilling or hostile witness so
declared, or the witness who is an adverse party,
may be impeached by the party presenting him in
all respects as if he had been called by the
adverse party, e'cept by evidence of his bad
character. 4e may also be impeached and cross.
e'amined by the adverse party, but such cross
e'amination must only be on the sub+ect matter
of his e'amination.in.chief.
%OW T%E WITNESS IS IMPEAC%ED BY
EVIDENCE OF INCONSISTENT STATEMENTS
(8A'95; <=7 P07!9+A<7)
$efore a witness can be impeached by evidence
that he has made at other times statements
inconsistent with his present testimony"
a) the statements must be related to him,
with the circumstances of the times and
places and the persons present, and
b) he must be as2ed whether he made such
statements, and if so, allowed to e'plain
them. f the statements be in writing they
must be shown to the witness before any
-uestion is put to him concerning them.
A witness cannot be impeached by evidence of
contradictory or prior inconsistent statements
until the proper foundation or predicate has been
laid by the party against whom said witness was
called.
Gaying the predicate means that it is the duty of a
party trying to impugn the testimony of a witness
by means of prior or subse-uent inconsistent
statements, whether oral or in writing, to give the
witness a change to reconcile his conIicting
declaration.
0here no predicate is laid during the trial proof of
alleged inconsistent statements of the witness,
whether verbal or written, cannot be admitted on
ob+ection of the adverse party, or be pointed out
on appeal for the purpose of destroying the
credibility of the witness.
An e'ception to the rule re-uiring the laying of
foundation for the admissibility of evidence of
inconsistent statements has been allowed in the
case of dying declarations.
EVIDENCE OF T%E GOOD C%ARACTER OF A
WITNESS
9vidence of the good character of a witness is not
admissible until such character has been
impeached. &he law presumes every person to be
reputedly truthful until evidence shall have been
produced to the contrary.
C7#-#1'e- e)"!e(1e (2' :e(e-#ll5
#!"ss"&leJ e?1e9'"2(s= 7
a) n +riminal +asesB
%) &he accused may prove his good moral
character which is pertinent to the
moral trait involved in the o/ense
charged.
() >nless in rebuttal, the prosecution may
not prove his bad moral character
which is pertinent it to the moral trait
involved in the o/ense charged.
<ote that in criminal cases, the
prosecution goes frst. 4ence, it cannot
present evidence on the bad moral
character of the accused on its
evidence in chief.
&he good or bad moral character of the
o/ended party may be proved if it
tends to establish in any reasonable
degree the probability or improbability
of the o/ense charged.
b) n +ivil +asesB
9vidence of the moral character of a
party in a civil case is admissible only
when pertinent to the issue of
character involved in the case.
ADMISSION CONFESSION
An act, declaration
or omission of a
party as to a
relevant fact.
&he declaration of an
accused ac2nowledging
his guilt of the o/ense
charged, or of any
190
o/ense necessarily
included therein.
t is a voluntary
ac2nowledgment
made by a party of
the e'istence of the
truth of certain facts
which are
inconsistent with his
claims in an action.
t is a statement by the
accused that he
engaged in conduct
which constitutes a
crime.
$roader than
confession.
Specifc type of
admission which refers
only to an
ac2nowledgment of
guilt
;ay be implied li2e
admission by
silence.
!annot be implied, but
should be a direct and
positive
ac2nowledgment of
guilt.
;ay be +udicial or
e'tra+udicial.
;ay be +udicial or
e'tra+udicial.
;ay be adoptive,
which occurs when a
person manifests his
assent to the
statements of
another person.
RES INTER ALIOS ACTA RULE
,es inter alios acta alteri nocere debt means that
\things done to strangers ought not to in+ure
those who are not parties to themN t has two
branches, namely"
a) &he rule that the rights of a party cannot
be pre+udiced by an act, declaration, or
omission of another# and
b) &he rule that evidence of previous conduct
or similar acts at one time is not
admissible to prove that one did or did not
do the same act at another time.
&he rule has reference to e'tra+udicial
declarations. 4ence, statements made in open
court by a witness implicating persons aside from
his own +udicial admissions are admissible as
declarations from one who has personal
2nowledge of the facts testifed to.
9'ceptions to the frst branch of the rule"
a) Admission by a co.partner or agent (Sec.
29, *ue 13.);
b) Admission by a co.conspirator (Sec. 3.,
*ue 13.); and
c) Admission by privies (Sec. 31, *ue 13.).
ADMISSION BY A PARTY
&he act, declaration or omission of a party as to a
relevant fact may be given in evidence against
him.
ADMISSION BY A T%IRD PARTY
&he rights of a party cannot be pre+udiced by an
act, declaration, or omission of another, e#ce!t
"s herein"fter !ro6i'e'.
ADMISSION BY A CO*PARTNER OR AGENT
&he act or declaration of a partner or agent of the
party within the scope of his authority and during
the e'istence of the partnership or agency, may
be given in evidence against such party after the
partnership or agency is shown by evidence other
than such act or declaration. &he same rule
applies to the act or declaration of a +oint owner,
+oint debtor, or other person +ointly interested
with the party.
=or the admission of a co.partner or agent to be
admissible, the following re-uisites must concur"
a) &he declaration or act of the partner and
agent must have been made or done
within the scope of his authority#
b) &he declaration or act of the partner and
agent must have been made or done
during the e'istence of the partnership or
agency, and the person ma2ing the
declaration still a partner or an agent# and
c) &he e'istence of the partnership or
agency is proven by evidence other than
the declaration or act of the partner and
agent.
ADMISSION BY A CONSPIRATOR
!onspiracy e'ists when two or more persons
come to an agreement concerning the
commission of a felony and decide to commit it.
Ance conspiracy is proven, the act of one is the
act of all. &he statement therefore of one may be
admitted against the other co.conspirators as an
e'ception to the rule of res inter "ios "ct".
=or the e'ception to apply, the following
re-uisites must concur"
%) &he declaration or act be made or done
during the e'istence of the conspiracy#
() &he declaration or act must relate to the
conspiracy# and
)) &he conspiracy must be shown by
evidence other than the declaration or act.
ADMISSION BY PRIVIES
3rivity means mutual succession of relationship to
the same rights of property. 3rivies are those who
have mutual or successive relationship to the
same right of property or sub+ect matter, such as
191
personal representatives, heirs, devisees,
legatees, assigns, voluntary grantees or
+udgment creditors or purchasers from them with
notice of the facts.
&hree e'ceptions are recogni6ed to the rule that
declarations of the transferor, made subse-uent
to the transfer, are inadmissible"
%) 0here the declarations are made in the
presence of the transferee, and he
ac-uiesces in the statements, or asserts
no rights where he ought to spea2#
() 0here there has been a prima facie case
of fraud established, as where the thing
after the sale or transfer, remains with the
seller or transferor#
)) 0here the evidence establishes a
continuing conspiracy to defraud, which
conspiracy e'ists between the vendor and
the vendee.
ADMISSION BY SILENCE
An act or declaration made in the presence and
within the hearing or observation of a party who
does or says nothing when the act or declaration
is such as naturally to call for action or comment
if not true, and when proper and possible for him
to do so, may be given in evidence against him.
&he common sense of man2ind is e'pressed in
the popular phrase, silence gives consent which
is but another form of e'pressing the ma'im of
the law, (ui t"cet cosentire 6i'etur.
$efore the silence of a party can be ta2en as an
admission of what is said, the following re-uisites
must concur"
a) 4earing and understanding of the
statement by the party#
b) Apportunity and necessity of denying the
statements#
c) Statement must refer to a matter a/ecting
his right#
d) =acts were within the 2nowledge of the
party# and
e) =acts admitted or the inference to be
drawn from his silence would be material
to the issue.
CONFESSIONS
&he declaration of an accused ac2nowledging his
guilt of the o/ense charged, or of any o/ense
necessarily included therein, may be given in
evidence against him.
Any confession or admission obtained in violation
of this or Section %J hereof shall be inadmissible
in evidence against him (Sec. 12, Art. III,
Constitution).
!onfession is an ac2nowledgment in e'press
words, by the accused in a criminal case, of the
truth of the o/ense charged, or of some essential
parts thereof. &o be valid, confessions must be
voluntarily and freely made.
9'ceptions to the rule that confessions of an
accused may be given in evidence against him
and incompetent against his co.accused"
a) 0hen several accused are tried together,
confession made by one of them during
the trial implicating the others is evidence
against the latter.
b) 0hen one of the defendants is discharged
from the information and testifes as a
witness for the prosecution, the confession
made in the course of his testimony is
admissible against his co.defendants, if
corroborated by indisputable proof.
c) f a defendant after having been apprised
of the confession of his co.defendant
ratifes or confrms said confession, the
same is admissible against him.
d) nterloc2ing confessions .. 0here several
e'tra.+udicial confession had been made
by several persons charged with an
o/ense and there could have been no
collusion with reference to said several
confessions, the facts that the statements
therein are in all material respects
identical, is confrmatory of the confession
of the co.defendant, and is admissible
against his other co.defendants.
e) A statement made by one defendant after
his arrest, in the presence of this co.
defendant, confessing his guilt and
implicating his co.defendant who failed to
contradict or deny it, is admissible against
his co.defendant.
f) 0hen the confession is of a conspirator
and made after conspiracy in furtherance
of its ob+ect, the same is admissible
against his co.conspirator# and
g) &he confession of one conspirator made
after the termination of a conspiracy is
admissible against his co.conspirator if
made in his presence and assented to by
him, or admitted its truth or failed to
contradict or deny it.
SIMILAR ACTS AS EVIDENCE
9vidence that one did or did not do a certain
thing at one time is not admissible to prove that
he did or did not do the same or a similar thing at
another time# but it may be received to prove a
192
specifc intent or 2nowledge, identity, plan,
system, scheme, habit, custom or usage, and the
li2e. H6i'ence of co"ter" o7enses $ust not %e
recei6e' "s su%st"nti6e e6i'ence of the o7enses
on tri".
%EARSAY RULE
A witness can testify only to those facts which he
2nows of his personal 2nowledge# that is, which
are derived from his own perception, e'cept as
otherwise provided in these rules.
Benerally, hearsay evidence is inadmissible
because the person who testifes does so based
on matters not of his personal 2nowledge but
based on the 2nowledge of another who is not in
court and cannot therefore, b cross.e'amined.
&he one in courts is the person who merely
repeats matters witnessed personally by another.
&his type o evidence is inadmissible because of
its inherent unreliability.
4earsay evidence may be in writing. =or instance,
an a5davit is hearsay unless the a5ant a5rms
the same in court and is sub+ect to cross.
e'amination.
A hearsay testimony involves an outside.
declarant and an in.court witness. t is the outside
declarant who says something based on what he
has perceived. 4is statement is heard by
someone who is the one testifes in court as to
what he heard.
f the witness o/ers the statement of the outside
declarant to prove the truth of such statement
(the one which he heard) the testimony of the
witness is hearsay. f it@s o/ered merely to prove
that he heard the statement without reference to
its truth or falsity, his testimony is not hearsay.
f what he heard is relevant to an issue in the
case, it will fall under the category of
in'e!en'ent ree6"nt st"te$ents which means
statements which are relevant as to their tenor or
to the fact that they were uttered and not as to
whether they are true or false.
MEANING OF %EARSAY
t also means the evidence not of what the
witness himself 2nows but of what he has heard
from others.
REASON FOR EXCLUSION OF %EARSAY
EVIDENCE
4earsay evidence is inadmissible according to the
general rule. &he real basis for the e'clusion is
the fact that hearsay testimony is not sub+ect to
the tests which can ordinarily be applied for the
ascertainment of the truth of testimony, since the
declarant is not present and available for cross.
e'amination.
n criminal cases the admission of hearsay
evidence would be a violation of the
constitutional provision that the accused shall
en+oy the right of being confronted with the
witnesses testifying against him and to cross.
e'amine them. ;oreover, the court is without the
opportunity to test the credibility of hearsay
statements by observing the demeanor of the
person who made them.
EXCEPTIONS TO T%E %EARSAY RULE
(?9V=G9!&D? 0.!A3)
%) ?ying declaration;
() 9ntries in the course of business#
)) Verbal acts#
*) =amily reputation or tradition regarding
pedigree#
5) Gearned treatises#
8) 9ntries in o5cial records#
J) !ommon reputation#
K) &estimony or deposition at a former
proceeding#
E) ?eclaration against interest#
%F) 0aiver#
%%) ndependently relevant evidence#
%() !ommercial lists and the li2e#
%)) Act or declaration about pedigree# and
%*) 3art of res 3est"e.
&he statements from which the facts in issue may
be inferred may be testifed to by witnesses
without violating the hearsay rule. Af this 2ind
are"
Statements of a person"
a) showing his state of mind, that is his
mental condition, 2nowledge, belief,
intention, ill.will and other emotion#
b) showing his physical condition, as illness
and the li2e#
c) from which an inference may be made as
to the state of mind of another, that is,
2nowledge, belief, motive, good or bad
faith, etc. of the latter#
d) which may identify the date, place, and
person in -uestion# and
e) showing the lac2 of credibility of a witness.
193
DYING DECLARATION
&he declaration of a dying person, made under
the consciousness of an impending death, may
be received in any case wherein his death is the
sub+ect of in-uiry, as evidence of the cause and
surrounding circumstances of such death.
,9H>S&9S"
%) &hat death is imminent and the declarant
is conscious of that fact#
() &hat the declaration refers to the cause
and surrounding circumstances of such
death#
)) &hat the declaration relates to facts which
the victim is competent to testify to# and
*) &hat the declaration is o/ered in a case
wherein the declarant@s death is the
sub+ect of the in-uiry.
&he most signifcant element is that the
declaration must have been conscious of his
impending death. t is this consciousness which is
assumed to be the compelling motive to tell the
truth. Any statement he ma2es not related to the
circumstances of his death is inadmissible as a
dying declaration.
&he dying declaration is admissible in A<O !AS9
provided the sub+ect of in-uiry in that case is the
death of the declarant.
t is re-uired that the declarant should die. f he
lives, he may testify personally based on his
personal 2nowledge. f he is unable to testify, his
declaration could be admitted as a statement
made by a person immediately subse-uent to a
startling occurrence (cou' %e consi'ere' !"rt of
res 3est"e).
DECLARATION AGAINST INTEREST
&he declaration made by a person deceased, or
unable to testify, against the interest of the
declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to
declarantVs own interest, that a reasonable man
in his position would not have made the
declaration unless he believed it to be true, may
be received in evidence against himself or his
successors in interest and against third persons.
ReFu"s"'es 82- '7e e?1e9'"2( '2 #99l5B
a) &hat the declarant is dead or unable to
testify#
b) &hat it relates to a fact against the interest
of the declarant#
c) &hat at the time he made said declaration
the declarant was aware that the same
was contrary to his aforesaid interest# and
d) &hat the declarant had no motive to falsify
and believed such declaration to be true.
ADMISSION BY
PRIVIES
DECLARATION
AGAINST INTEREST
Ane of ) e'ceptions
to res inter alios acta
9'ception to hearsay
9vidence against the
successor in interest
of the admitter
9vidence against even
the declarant, his
successor in interest,
or )rd persons
Admitter need not
be dead or unable to
testify
?eclarant is dead or
unable to testify
,elates to title to
property
,elates to any interest
Admission need not
be against the
admitterDs interest
?eclaration must be
against the interest of
the declarant
ACT OR DECLARATION ABOUT PEDIGREE
&he word \pedigree\ includes relationship, family
genealogy, birth, marriage, death, the dates
when and the places where these facts occurred,
and the names of the relatives. t embraces also
facts of family history intimately connected with
pedigree.
3edigree is the history of family descent which is
transmitted from one generation to another by
both oral and written declarations and by
traditions.
ReFu"s"'es 82- #99l"1#&"l"'5B
a) ?eclarant is dead or unable to testify#
b) <ecessity that pedigree be in issue#
c) ?eclarant must be a relative of the person
whose pedigree is in -uestion#
d) ?eclaration must be made before the
controversy occurred# and
e) &he relationship between the declarant
and the person whose pedigree is in
-uestion must be shown by evidence
other than such act or declaration.
FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
9ntries in family bibles or other family boo2s or
charts, engravings on rings, family portraits and
the li2e, may be received as evidence of
pedigree.
194
ReFu"s"'es 82- '7e e?1e9'"2( '2 #99l5B
a) &here is a controversy in respect to the
pedigree of any members of a family#
b) &he reputation or tradition of the pedigree
of the person concerned e'isted ante litem
motam or pervious to the controversy# and
c) &he witness testifying to the reputation or
tradition regarding the pedigree of the
person concerned must be a member of
the family of said person, either by
consanguinity or a5nity.
COMMON REPUTATION
ReFu"s"'es 82- '7e #!"ss"&"l"'5 28 '7e
e?1e9'"2(B
a) &he facts must be of public or general
interest and more than thirty years old#
b) &he common reputation must have been
ancient (more than )F years old or one
generation old)#
c) &he reputation must have been one
formed among the class of persons who
were in a position to have some sources of
information and to contribute intelligently
to the formation of the opinion# and
&he common reputation must have been e'isting
previous to the controversy.
,e-uisites for the admissibility of common
reputation respecting marriage"
a) &he common reputation must have been
formed previous to the controversy# and
b) &he common reputation must have been
formed in the community or among the
class of persons who are in a position to
have sources of information and to
contribute intelligently to the formation of
the opinion.
,e-uisites for the admissibility of common
reputation respecting moral character"
a) &hat it is the reputation in the place where
the person in -uestion is best 2nown#
b) &hat it was formed "nte ite$ $ot"$.
!haracter refers to the inherent -ualities of the
person, rather than to any opinion that may be
formed or e'pressed of him by others. ,eputation
applies to the opinion which others may have
formed and e'pressed of his character.
;onuments and inscriptions in public places may
be received as evidence of common reputation.
PART OF T%E RES GESTAE
Statements made by a person while a startling
occurrence is ta2ing place or immediately prior or
subse-uent thereto with respect to the
circumstances thereof, may be given in evidence
as part of the res gestae. So, also, statements
accompanying an e-uivocal act material to the
issue, and giving it a legal signifcance, may be
received as part of the res gestae.
,es gestae is from the Gatin meaning Mthings
doneN. As applied to a crime, res gestae means
the complete criminal transaction from its
beginning or starting point in the act of the
accused until the end is reached.
&he general classes of declarations to which the
term res gestae is usually applied are (a)
spontaneous statements, and (b) verbal acts.
SPONTANEOUS
STATEMENTS
VERBAL ACTS
Statement or
e'clamation made
immediately after
some e'citing
occasion by a
participant or
spectator and
asserting the
circumstances of that
occasion as it is
observed by him.
>tterances which
accompany some
act or conduct to
which it is desired to
give a legal e/ect.
0hen such act has
intrinsically no
defnite legal
signifcance, or only
an ambiguous one,
its legal purport or
tenor may be
ascertained by
considering the
words accompanying
it, and these
utterances thus
enter merely as
verbal part of the
act.
&he res gestae is the
startling occurrence
&he res gestae is the
e-uivocal act
Spontaneous
e'clamation may be
prior to, simultaneous
with, or subse-uent
to the startling
occurrence.
Verbal act must be
contemporaneous
with or must
accompany the
e-uivocal act to be
admissible.
*e"son for
"'$issi%iit+0
&rustworthiness and
necessityUbecause
statements are made
instinctively, and
because said natural
and spontaneous
utterances are more
convincing than the
*e"son for
"'$issi%iit+0
&he motive,
character and ob+ect
of an act are
fre-uently indicated
by what was said by
the person engaged
in the act.
195
testimony of the
same person on the
stand.
*e(uisites for
"'$issi%iit+0
a) &here must be a
startling
occurrence#
b) &he statement
must relate to the
circumstances of
the startling
occurrence#
c) &he statement
must be
spontaneous.
*e(uisites for
"'$issi%iit+0
a) Act or occurrence
characteri6ed
must be
e-uivocal#
b) Verbal acts must
characteri6e or
e'plain the
e-uivocal act#
c) 9-uivocal act
must be relevant
to the issue#
d) Verbal acts must
be
contemporaneou
s with e-uivocal
act.
ENTRIES IN T%E COURSE OF BUSINESS
ReFu"s"'es 82- #!"ss"&"l"'5B
a) 9ntries must have been made at or near
the time of the transaction to which they
refer#
b) 9ntrant must have been in a position to
2now the facts stated in the entries#
c) 9ntries must have been made by entrant
in his professional capacity or in the
performance of his duty#
d) 9ntries were made in the ordinary or
regular course of business of duties#
e) 9ntrant must be deceased or unable to
testify.
ENTRIES IN OFFICIAL RECORDS
9ntries in o5cial records made in the
performance of his duty by a public o5cer of the
3hilippines, or by a person in the performance of
a duty specially en+oined by law, are prima facie
evidence of the facts therein stated.
COMMERCIAL LISTS AND T%E LI+E
9vidence of statements of matters of interest, to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein.
LEARNED TREATIES
A published treatise, periodical or pamphlet on a
sub+ect of history, law, science or art is
admissible as tending to prove the truth of a
matter stated therein if the court ta2es +udicial
notice, or a witness e'pert in the sub+ect testifes
that the writer of the statement in the treatise,
periodical or pamphlet is recogni6ed in his
profession or calling as e'pert in the sub+ect.
TESTIMONY OR DEPOSITION AT A FORMER
TRIAL
&he testimony or deposition of a witness
deceased or unable to testify, given in a former
case or proceeding, +udicial or administrative,
involving the same parties and sub+ect matter,
may be given in evidence against the adverse
party who had the opportunity to cross.e'amine
him.
f the witness has been sub+ected to cross.
e'amination in a former trial, the rule is satisfed,
and the former testimony may now be used.
OPINION RULE
B9<9,AG ,>G9" the opinion of a witness is not
admissible. &he witness must testify to facts
within their 2nowledge and may not state their
opinion, even on their cross.e'amination.
9S!93&A<S"
%) OPINION OF EXPERT WITNESS * An a
matter re-uiring special 2nowledge, s2ill,
e'perience or training which he possesses,
that is, when he is an e'pert thereon may
be received in evidence. H#!ert testi$on+
is not "'$issi%e "s to " $"tter not in
issue.
() OPINION OF ORDINARY WITNESSES"
a) &he identity of a person about
whom he has ade-uate 2nowledge#
b) A handwriting of a person with
which he has su5cient familiarity#
c) &he mental sanity or a person with
whom he is su5ciently ac-uainted#
and
d) &he witness@ impression of the
emotion, behavior, condition or
appearance of a person.
*e"son0 it is for the court to for$ "n o!inion
concernin3 the f"cts in !roof of )hich
e6i'ence is o7ere'.
OPINION OF EXPERT WITNESS
196
t is su5cient that the following factors are
present"
a) &raining and education#
b) 3articular, frst.hand familiarity with the
facts of the case# and
c) 3resentation of the authorities or
standards upon which his opinion is based.
$efore one may be allowed to testify as an e'pert
witness, his -ualifcation must frst be established
by the party presenting him, i.e., he must be
shown to possess the special s2ill or 2nowledge
relevant to the -uestion to which he is to e'press
an opinion. !ommon sub+ects of e'pert
testimony" handwriting, typewritten documents,
fngerprints, ballistics, medicine, value of
properties and services.
C%ARACTER EVIDENCE
!haracter evidence, as a general rule, is not
admissible in evidence because the evidence of a
person@s character does not prove that such
person acted conformity with such character or
trait in a particular occasion. 9'ceptions"
a) n criminal cases, the prosecution may not
at the outset prove the bad moral
character of the accused which is
pertinent to the moral trait involved in the
o/ense charged. f the accused, however,
in his defense attempts to prove his good
moral character then the prosecution can
introduce evidence of such bad moral
character at the rebuttal stage.
b) Also in criminal case, the good or bad
moral character of the o/ended party may
always be proved by either party as long
as such evidence tends to establish the
probability or improbability of the o/ense
charged.
c) n civil cases, the moral character of either
party thereto cannot be proved unless it is
pertinent to the issue of character
involved in the case.
d) n both civil and criminal cases, the bad
moral character of a witness may always
be proved by either party but not evidence
of his good character, unless it has been
impeached.
0ith respect to the nature or substance of the
character evidence which may be admissible, the
rules re-uire that"
a) 0ith respect to the accused, such
character evidence must be pertinent to
the moral trait involved in the o/ense
charged#
b) 0ith respect to the o/ended person, it is
su5cient that such character evidence
may establish in any reasonable degree
the probability or improbability of the
o/ense charged, as in prosecutions for
rape or consented abduction wherein the
victimDs chastity may be -uestioned, and
in prosecution for homicide wherein the
pugnacious, -uarrelsome or trouble.
see2ing character of the victim is a proper
sub+ect of in-uiry# and
c) 0ith respect to witnesses, such character
evidence must refer to his general
reputation for truth, honesty or integrity,
that is, as a/ecting his credibility.
RULE ON EXAMINATION OF A C%ILD
WITNESS .A=M= NO= 004*07*SC0
APPLICABILITY OF T%E RULE
>nless otherwise provided, this ,ule shall govern
the e'amination of child witnesses who are
victims of crime, accused of a crime, and
witnesses to crime. t shall apply in all criminal
proceedings and non.criminal proceedings
involving child witnesses.
MEANING OF LC%ILD WITNESSN
Any person who at the time of giving testimony is
below the age of %K years. n child abuse cases, a
child includes one over %K years but is found by
the court as unable to fully ta2e care of himself or
protect himself from abuse, neglect, cruelty,
e'ploitation, or discrimination because of a
physical or mental disability or condition.
COMPETENCY OF A C%ILD WITNESS
9very child is presumed -ualifed to be a witness.
4owever, the court shall conduct a competency
e'amination of a child (on+ %+ the &u'3e, or
court) , motu propio or on motion of a party,
when it fnds that substantial doubt e'ists
regarding the stability of the child to perceive,
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth
in court. &he court has the duty of continuously
assessing the competence of the child throughout
his testimony.
EXAMINATION OF A C%ILD WITNESS
&he e'amination of a child witness presented in a
hearing or any proceeding shall be done in open
court. >nless the witness is incapacitated to
spea2, or the -uestion calls for a di/erent mode
197
of answer, the answers of the witness shall be
given orally. &he party who presents a child
witness or the guardian ad litem of such child
witness may, however, move the court to allow
him to testify in the manner provided in this ,ule.
LIVE*LIN+ TV TESTIMONY OF A C%ILD
WITNESS .SEC= 260
&he prosecutor, counsel or the guardian ad litem
may apply for an order that the testimony of the
child be ta2en in a room outside the courtroom
and be televised to the courtroom by live.lin2
television.
&he court may order that the testimony of the
child be ta2en by live.lin2 television if there is a
substantial li2elihood that the child would su/er
trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the
case may be. &he trauma must be of a 2ind which
would impair the completeness or truthfulness of
the testimony of the child. &he child shall
therefore testify in a room separate from the
courtroom.
VIDEOTAPED DEPOSITION OF A C%ILD
WITNESS
&he prosecutor, counsel, or guardian ad litem
may apply for an order that a deposition be ta2en
of the testimony of the child and that it be
recorded and preserved on videotape. &he +udge
shall preside at the videotaped deposition of a
child. Ab+ections to deposition testimony or
evidence and the grounds for the ob+ection shall
be stated and shall rule upon at the time of the
ta2ing of the deposition.
&he videotaped deposition shall be preserved and
stenographically recorded. &he videotape and the
stenographic notes shall be transmitted to the
cler2 of the court where the case is pending for
safe2eeping and shall be made a part of the
record. &he videotaped deposition and
stenographic notes shall be sub+ect to a
protective order.
f, at the time of trial, the court fnds that the
child is unable to testify, the court may admit into
evidence the videotaped deposition of the child in
lieu of his testimony at the trial.
After the original videotaping but before or during
trial, any party may fle any motion for additional
videotaping on the ground of newly discovered
evidence.
%EARSAY EXCEPTION IN C%ILD ABUSE
CASES
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non.
criminal proceeding sub+ect to the following rules"
a) $efore such hearsay statement may be
admitted, its proponent shall ma2e 2nown
to the adverse party the intention to o/er
such statement and its particulars to
provide him a fair opportunity to ob+ect. f
the child is available, the court shall, upon
motion of the adverse party, re-uire the
child to be present at the presentation of
the hearsay statement for cross.
e'amination by the adverse party. 0hen
the child is unavailable, the fact of such
circumstance must be proved by the
proponent.
b) n ruling on the admissibility of such
hearsay statement, the court shall
consider the time, content and
circumstances thereof which provide
su5cient indicia of reliability.
&he child witness shall be considered unavailable
under the following situations"
a) s deceased, su/ers from physical
infrmity, lac2 of memory, mental illness,
or will be e'posed to sever psychological
in+ury# or
b) s absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable mean.
0hen the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
SEXUAL ABUSE S%IELD RULE
a) &he following evidence is <A& A?;SS$G9 in
any criminal proceeding involving alleged
child se'ual abuse"
a. 9vidence o/ered to prove that the
alleged victim engaged in other se'ual
behavior# and
b. 9vidence o/ered to prove the se'ual
pre.disposition of the alleged victim.
b) 9S!93&A<" 9vidence of specifc instances of
se'ual behavior by the alleged victim to prove
that a person other than the accused was the
source of semen, in+ury, or other physical
evidence shall be admissible.
PROTECTIVE ORDERS
198
3rotection of privacy and safety . Any videotape
or audiotape of a child that is part of the court
record shall be under a protective order. &he
court may, motu propio or on motion of any
party, the child, his parents, legal guardian, or
the guardian ad litem, issue additional orders to
protect the privacy of the child.
OFFER AND OB,ECTION .RULE 1320
OFFER OF EVIDENCE
&he court shall consider no evidence which has
not been formally o/ered. &he purpose for which
the evidence is o/ered must be specifed.
W%EN TO MA+E AN OFFER
testimony of a witness . the o/er must be
made at the time the witness is called to
testify.
?ocumentary and ob+ect evidence shall be
o/ered after the presentation of a partyVs
testimonial evidence. Such o/er shall be done
orally unless allowed by the court to be done
in writing.
OB,ECTION
Ab+ection to evidence o/ered orally must be
made immediately after the o/er is made.
Ab+ection to a -uestion propounded in the
course of the oral e'amination of a witness
shall be made as soon as the grounds therefor
shall become reasonably apparent.
An o/er of evidence in writing shall be
ob+ected to within three ()) days after notice
of the o/er unless a di/erent period is allowed
by the court. n any case, the grounds for the
ob+ections must be specifed.
Jroun's for o%&ection0 Fe"rs"+;
Ar3u$ent"ti6e; 5e"'in3; ,ise"'in3;
Inco$!etent; Irree6"nt; Best e6i'ence rue;
P"roe e6i'ence rue; Buestion h"s no %"sis
REPETITION OF AN OB,ECTION
0hen it becomes reasonably apparent in the
course of the e'amination of a witness that the
-uestions being propounded are of the same
class as those to which ob+ection has been made,
whether such ob+ection was sustained or
overruled, it shall not be necessary to repeat the
ob+ection, it being su5cient for the adverse party
to record his continuing ob+ection to such class of
-uestions.
RULING
&he ruling of the court must be given
immediately after the ob+ection is made, unless
the court desires to ta2e a reasonable time to
inform itself on the -uestion presented# but the
ruling shall always be made during the trial and
at such time as will give the party against whom
it is made an opportunity to meet the situation
presented by the ruling.
STRI+ING OUT OF AN ANSWER
Should a witness answer the -uestion before the
adverse party had the opportunity to voice fully
its ob+ection to the same, and such ob+ection is
found to be meritorious, the court shall sustain
the ob+ection and order the answer given to be
stric2en o/ the record. An proper motion, the
court may also order the stri2ing out of answers
which are incompetent, irrelevant, or otherwise
improper.

TENDER OF EXCLUDED EVIDENCE
f documents or things o/ered in evidence are
e'cluded by the court, the o/eror may have
the same attached to or made part of the
record.
f the evidence e'cluded is oral, the o/eror
may state for the record the name and other
personal circumstances of the witness and the
substance of the proposed testimony.
N2'eB Su9-ee C2u-' Rul"(:s #s 28
De1e&e- 2010 "(1lu!e!
REVISED RULES ON SUMMARY PROCEDURE
(,e1C, ,1C "n' ,C1C)
CASES COVERED BY T%E RULE
10 CIVIL CASES
a. All cases of forcible entry and unlawful
detainer irrespective of the amount of
damages or unpaid rentals sought to
be recovered.
b. All other cases, e'cept probate
proceedings where the total amount of
the plainti/Ds claim does not e'ceed
3%FF,FFF outside, or 3(FF,FFF in
;etro ;anila, e'clusive of interest and
costs.
20 CRIMINAL CASES
199
a. Violation of $ouncing !hec2s Gaw ($3
(()#
b. Violation of tra5c laws, rules and
regulations#
c. Violations of rental laws#
d. All other criminal cases where the
penalty prescribed by law for the
o/ense charged is imprisonment not
e'ceeding 8 months or a fne not
e'ceeding 3%,FFF or both, irrespective
of other imposable penalties,
accessory or otherwise, or of the civil
liability arising therefrom# and in
o/enses involving damages to
property through criminal negligence,
where the imposable fne does not
e'ceed 3%,FFF.
e. n o/enses involving damage to
property through criminal negligence,
where the imposable fne does not
e'ceed 3%F,FFF.FF
<ote" &he ,ule shall not apply in a civil case
where the cause of action is pleaded with
another cause of action sub+ect to the
ordinary procedure, nor to criminal case
where the o/ense charged is necessary
related to another criminal case sub+ect to the
ordinary procedure.
EFFECT OF FAILURE TO ANSWER
Should the defendant fail to answer the
complaint within %F days from service of
summons, the court shall ;A&> 3,A3A or
A< ;A&A< of the plainti/, shall render
+udgment as may be warranted by the
facts alleged in the complaint and limited
to what is prayed for therein.
&his is without pre+udice to the
applicability of Sec. 9, *ue 1= if there are
two or more defendants.
PRELIMINARY CONFERENCE AND
APPEARANCES OF PARTIES
a preliminary conference shall be held not
later than )F days after the last answer is
fled. &he rules on pre.trial in ordinary
cases shall be applicable to the
preliminary conference unless inconsistent
with the provisions of the ,ule.
&he failure of the plainti/ to appear in the
preliminary conference shall be cause for
the dismissal of his complaint. &he
defendant who appears in the absence of
the plainti/ shall be entitled to +udgment
on his counterclaim. All cross.claims shall
be dismissed.
f a sole defendant shall fail to appear, the
plainti/ shall be entitled to +udgment as
warranted by the allegations in the
complaint and limited to the reliefs prayed
for therein. &he ,ule shall not apply where
one of two or more defendants sued under
a common cause of action who had
pleaded a common defenses shall appear
at the preliminary conference.
+ATARUNGANG PAMBARANGAY ((ecs. **
622, 8;+)
SUB,ECT MATTER FOR AMICABLE
SETTLEMENT
&he lupon of each barangay shall have authority
to bring together the parties actually residing in
the same municipality or city for amicable
settlement of all disputes
9S!93&"
%) 0here one party is the government or any
subdivision or instrumentality thereof#
() 0here one party is a public o5cer or
employee, and the dispute relates to the
performance of his o5cial functions#
)) A/enses punishable by imprisonment
e'ceeding one (%) year or a fne e'ceeding
35,FFF#
*) A/enses where there is no private
o/ended party#
5) 0here the dispute involves real properties
located in di/erent cities or municipalities
unless the parties thereto agree to submit
their di/erences to amicable settlement
by an appropriate lupon#
8) ?isputes involving parties who actually
reside in barangays of di/erent cities or
municipalities, e'cept where such
barangay units ad+oin each other and the
parties thereto agree to submit their
di/erences to amicable settlement by an
appropriate lupon#
J) Such other classes of disputes which the
3resident may determine in the interest of
+ustice or upon the recommendation of the
Secretary of :ustice#
K) Any complaint by or against corporations,
partnerships, or +uridical entities. &he
reason is that only individuals shall be
parties to barangay conciliation
proceedings either as complainants or
respondents#
200
E) ?isputes where urgent legal action is
necessary to prevent in+ustice from being
committed or further continued, specially
the following"
a) A criminal case where the accused
is under police custody or
detention#
b) A petition for habeas corpus by a
person illegally detained or
deprived of his liberty or one acting
in his behalf#
c) Actions coupled with provisional
remedies, such as preliminary
in+unction, attachment, replevin
and support pendente litem#
d) 0here the action may be barred by
the statute of limitations#
%F) Gabor disputes or controversies arising
from employer.employee relationship.
%%) 0here the dispute arises from the
!omprehensive Agrarian ,eform Gaw#
%() Actions to annul +udgment upon a
compromise which can be fled directly in
court.
&he court in which non.criminal cases not falling
within the authority of the lupon under the !ode
are fled may, at any time before trial, motu
propio refer the case to the lupon concerned for
amicable settlement.
VENUE
%) ?isputes between persons actually residing in
the same barangay#
() &hose involving actual residents of di/erent
barangays within the same city or
municipality#
)) All disputes involving real property or any
interest therein where the real property or the
larger portion thereof is situated#
*) &hose arising at the wor2place where the
contending parties are employed or at the
institution where such parties are enrolled for
study, where such wor2place or institution is
located.
I%&ections to 6enue sh" %e r"ise' in the
$e'i"tion !rocee'in3s %efore the !unon3
%"r"n3"+; other)ise, the s"$e sh" %e
'ee$e' )"i6e'. An+ e3" (uestion )hich
$"+ confront the !unon3 %"r"n3"+ in
reso6in3 o%&ections to 6enue herein
referre' to $"+ %e su%$itte' to the
Secret"r+ of 2ustice, or his 'u+ 'esi3n"te'
re!resent"ti6e, )hose ruin3 thereon sh"
%e %in'in3.
W%EN PARTIES MAY DIRECTLY GO TO
COURT
%) 0here the accused is under detention#
() 0here a person has otherwise been
deprived or personal liberty calling for
habeas corpus proceedings#
)) 0here actions are coupled with provisional
remedies such as preliminary in+unction,
attachment, delivery of personal property,
and support pendente lite# and
*) 0here the action may otherwise be barred
by the statute of limitations.
EXECUTION
&he amicable settlement or arbitration award
may be enforced by e'ecution by the lupon within
si' (8) months from the date of the settlement.
After the lapse of such time, the settlement may
be enforced by action in the appropriate city or
municipal court.
REPUDIATION
Any party to the dispute may, within ten (%F)
days from the date of the settlement, repudiate
the same by fling with the lupon chairman a
statement to that e/ect sworn to before him,
where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
su5cient basis for the issuance of the
certifcation for fling a complaint before the
court.
RULE OF PROCEDURE FOR SMALL CLAIMS
CASES .AM N2= 0C*C*7*SC/ #s #e(!e!0
SCOPE AND APPLICABILITY OF T%E RULE
&his ,ule shall govern the procedure in actions
before the"
a) ;etropolitan &rial !ourts#
b) ;unicipal &rial !ourts in !ities#
c) ;unicipal &rial !ourts# and
d) ;unicipal !ircuit &rial !ourts
for payment of money where the value of the
claim ?A9S <A& 9S!99? 3%FF,FFF.FF
e'clusive of interest and costs.
&he ;&!s shall apply this ,ule in all actions which
are"
a) purely civil in nature where the claim or
relief prayed for by the plainti/ is solely
for payment or reimbursement of sum of
money# and
201
b) the civil aspect of criminal actions, either
fled before the institution of the criminal
action, or reserved upon the fling of the
criminal action in court, pursuant to ,ule
%%% of the ,evised ,ules of !riminal
3rocedure.
&hese claims or demands may be"
a) =or money owed under any of the
following"
%. !ontract of Gease#
(. !ontract of Goan#
). !ontract of Services#
*. !ontract of Sale# or
5. !ontract of ;ortgage#
b) =or damages arising from any of the
following"
%. =ault or negligence#
(. Huasi.contract# or
). !ontract#
c) &he enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim
covered by this ,ule pursuant to Sec.
*%J of ,A J%8F.
COMMENCEMENT OF SMALL CLAIMS
ACTION
A small claims action is commenced by fling with
the court an"
%) accomplished and verifed Statement of
!laim in duplicate#
() a !ertifcation of <on.forum Shopping#
)) two (() duly certifed photocopies of the
actionable documentLs sub+ect of the
claim#
*) the a5davits of witnesses and other
evidence to support the claim.
-o e6i'ence sh" %e "o)e' 'urin3 the
he"rin3 )hich )"s not "tt"che' to or
su%$itte' to3ether )ith the C"i$, uness
3oo' c"use is sho)n for the "'$ission of
"''ition" e6i'ence. -o for$" !e"'in3,
other th"n the St"te$ent of C"i$ is
necess"r+ to initi"te " s$" c"i$s "ction.
RESPONSE
&he defendant shall fle with the court and serve
on the plainti/ a duly accomplished and verifed
,esponse within a non.e'tendible period of ten
(%F) days from receipt of summons. &he response
shall be accompanied by certifed photocopies of
documents, as well as a5davits of witnesses and
other evidence in support thereof. <o evidence
shall be allowed during the hearing which was not
attached to or submitted together with the
,esponse, unless good cause is shown for the
admission of additional evidence. 1he 3roun's for
the 'is$iss" of the c"i$, un'er *ue 1< of the
*ues of Court, shou' %e !e"'e'.
EFFECT OF FAILURE TO FILE RESPONSE
Should the defendant fail to fle his ,esponse
within the re-uired period, and li2ewise fail to
appear at the date set for hearing, the court shall
render +udgment on the same day, as may be
warranted by the facts.
Should the defendant fail to fle his ,esponse
within the re-uired period but appears at the date
set for hearing, the court shall ascertain what
defense he has to o/er and proceed to hear,
mediate or ad+udicate the case on the same day
as if a ,esponse has been fled.
PRO%IBITED PLEADINGS AND MOTIONS
a) ;otion to dismiss the complaint#
b) ;otion for a bill of particulars#
c) ;otion for new trial, or for reconsideration
of a +udgment, or for reopening of trial#
d) 3etition for relief from +udgment#
e) ;otion for e'tension of time to fle
pleadings, a5davits, or any other paper#
f) ;emoranda#
g) 3etition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court#
h) ;otion to declare the defendant in default#
i) ?ilatory motions for postponement#
+) ,eply#
2) &hird.party complaints# and
l) nterventions.
APPEARANCES
&he parties shall appear at the designated date of
hearing 39,SA<AGGO. Appearance through a
representative must be for a 6"i' c"use. &he
representative of an individual.party must"
%) not be a lawyer# and
() must be related to or ne't.of.2in of the
individual.party.
2uri'ic" entities sh" not %e re!resente' %+ "
")+er in "n+ c"!"cit+.
&he representative must be authori6ed under a
Special 3ower of Attorney to enter into an
202
amicable settlement of the dispute and to enter
into stipulations or admissions of facts and of
documentary e'hibits.
EFFECT OF FAILURE TO APPEAR
=ailure of the plainti/ to appear shall be cause for
the dismissal of the claim without pre+udice. &he
defendant who appears shall be entitled to
+udgment on a permissive counterclaim.
=ailure of the defendant to appear shall have the
same e/ect as failure to fle a ,esponse. &his rule
shall not apply where one of two or more
defendants sued on a common cause of action
appear.
=ailure of both parties to appear shall cause the
dismissal with pre+udice of both the claim and
counterclaim.
%EARINGJ DUTY OF T%E ,UDGE
At the beginning, the +udge shall read aloud a
short statement e'plaining the nature, purpose
and the rule of procedure of small claims cases
and shall e'ert e/orts to bring the parties to an
amicable settlement of their dispute.
Any settlement or resolution of the dispute shall
be reduced into writing, signed by the parties and
submitted to the court for approval.
Settlement discussions shall be strictly
confdential and any reference to any settlement
made in the course of such discussions shall be
punishable by contempt.
FINALITY OF ,UDGMENT
After the hearing, the court shall render its
decision on the same day and the same shall be
fnal and unappealable and if it is in favor of the
plainti/, the +udgment shall be e'ecuted upon his
motion.
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES (AB 5o. 0*-C-D-
(+)
SCOPE AND APPLICABILITY OF T%E RULE
&hese ,ules shall govern the procedure in civil,
criminal and special civil actions before the ,&!s
and ;&!s involving enforcement or violations of
environmental and other related laws, rules and
regulations.
CIVIL PROCEDURE
PRO%IBITION AGAINST TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
IN,UNCTION
9'cept the Supreme !ourt, no court can issue a
&,A or writ of preliminary in+unction against
lawful actions of government agencies that
enforce environmental laws or prevent violations
thereof e'cept the Supreme !ourt.
PRE*TRIAL CONFERENCEJ CONSENT DECREE
.SEC= 6/ RULE 30
&he +udge shall put the parties and their
counsels under oath, and they shall remain
under oath in all pre.trial conferences.
&he +udge shall e'ert best e/orts to persuade
the parties to arrive at a settlement of the
dispute. &he +udge may issue a consent
decree approving the agreement between the
parties in accordance with law, morals, public
order and public policy to protect the right of
the people to a balanced and healthful
ecology.
9vidence not presented during the pre.trial,
e'cept newly discovered evidence, shall be
deemed waived.
!A<S9<& ?9!,99 refers to a +udicially.
approved settlement between concerned
parties based on public interest aspect in
environmental cases and encourages the
parties to e'pedite the resolution of litigation.
PRO%IBITED PLEADINGS AND MOTIONS
.SEC= 2/ RULE 20
a) ;otion to dismiss the complaint#
b) ;otion for a bill of particulars#
c) ;otion for e'tension of time to fle
pleadings, e'cept to fle answer, the
e'tension not to e'ceed ffteen (%5) days#
d) ;otion to declare the defendant in default#
e) ,eply and re+oinder# and
f) &hird party complaint.
;otion for postponement, motion for new trial
and petition for relief from +udgment shall only be
203
allowed in certain conditions of highly meritorious
cases or to prevent a manifest miscarriage of
+ustice. &he satisfaction of these conditions is
re-uired since these motions are prone abuse
during litigation.
;otion for intervention is permitted in order to
allow the public to participate in the fling and
prosecution of environmental cases, which are
imbued with public interest.
3etitions for certiorari are li2ewise permitted
since these raise fundamentally -uestions of
+urisdiction.
TEMPORARY ENVIRONMENTAL PROTECTION
ORDER .TEPO0
1e$!or"r+ Hn6iron$ent" Protection Ir'er
(1HPI) / refers to an order issued by the court
directing or en+oining any person or government
agency to perform or desist from performing an
act in order to protect, preserve or rehabilitate
the environment.
&he &93A shall be issued it appears from the
verifed complaint with a prayer for the issuance
of an 9nvironmental 3rotection Arder (93A) that
the matter is of e'treme urgency and the
applicant will su/er grave in+ustice and
irreparable in+ury. &he applicant shall be
e'empted from the posting of a bond for the
issuance of a &93A.
&he e'ecutive +udge of the multiple sala court
before raXe or the presiding +udge of a single.
sala court as the case may be, may issue e'
parte a &93A e/ective for only seventy.two (J()
hours from date of the receipt of the &93A by the
party or person en+oined. 0ithin said period, the
court where the case is assigned, shall conduct a
summary hearing to determine whether the &93A
may be e'tended until the termination of the
case.
&he court handling the case shall periodically
monitor the e'istence of acts that are the sub+ect
matter of the &93A and may lift the same at any
time as circumstances may warrant.
An "!!ic"nt is e#e$!t fro$ the !ostin3 of "
%on'. >hie the 1HPI $"+ %e issue' e# !"rte,
this is $ore of the e#ce!tion. 1he 3ener" rue on
the con'uct of " he"rin3 !ursu"nt to 'ue !rocess
re$"ins.
,UDGMENT AND EXECUTION .RULE 60
Any +udgment directing the performance of acts
for the protection, preservation or rehabilitation
of the environment shall be e'ecutory pending
appeal ><G9SS restrained by the appellate court.
t may not be stayed by the posting of a bond and
the sole remedy lies with the appellate court. &he
appellate court can issue a &,A to restrain the
e'ecution of the +udgment and should the
appellate court act with grave abuse of discretion
in refusing to act on the application for a &,A, a
petition for certiorari under ,ule 85 can be
brought before the Supreme !ourt.
RELIEFS IN A CITIIENES SUIT
Any =ilipino citi6en in representation of others,
including minors or generations yet unborn, may
fle an action to enforce rights or obligations
under environmental laws.
f warranted, the court may grant to the plainti/
proper reliefs which shall include the protection,
preservation or rehabilitation of the environment
and the payment of attorneyDs fees, costs of suit
and other litigation e'penses. t may also re-uire
the violator to submit a program of rehabilitation
or restoration of the environment, the costs of
which shall be borne by the violator, or to
contribute to a special trust fund for that purpose
sub+ect to the control of the court.
PERMANENT ENVIRONMENTAL
PROTECTION ORDER
&he court may convert the &93A to a permanent
93A or issue a writ of continuing mandamus
directing the performance of acts which shall be
e/ective until the +udgment is fully satisfed.
&he court may, by itself or through the
appropriate government agency, monitor the
e'ecution of the +udgment and re-uire the party
concerned to submit written reports on a
-uarterly basis or sooner as may be necessary,
detailing the progress of the e'ecution and
satisfaction of the +udgment. &he other party
may, at its option, submit its comments or
observations on the e'ecution of the +udgment.
WRIT OF CONTINUING MANDAMUS
!A<&<><B ;A<?A;>S is a writ issued by a
court in an environmental case directing any
agency or instrumentality of the government or
o5cer thereof to perform an act or series of acts
decreed by fnal +udgment which shall remain
e/ective until +udgment is fully satisfed.
204
&he concept of continuing mandamus was
originally enunciated in the case of Concerne'
*esi'ents of ,"ni" B"+ 6s. ,,4A, J* 1;199;/
9=, 4ec. 1=, 2..=. &he ,ules now codify the 0rit
of !ontinuing ;andamus as one of the principal
remedies which may be availed of in
environmental cases.
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION
S&,A&9B! GA0S>& ABA<S& 3>$G!
3A,&!3A&A< (SGA33) refers to an action
whether civil, criminal or administrative, brought
against any person, institution or any government
agency or local government unit or its o5cials
and employees, with the intent to harass, ve',
e'ert undue pressure or stiIe any legal recourse
that such person, institution or government
agency has ta2en or may ta2e in the enforcement
of environmental laws, protection of the
environment or assertion of environmental rights.
A legal action fled to harass, ve', e'ert undue
pressure or stiIe any legal recourse that any
person, institution or the government has ta2en
or may ta2e in the enforcement of environmental
laws, protection of the environment or assertion
of environmental rights shall be treated as a
SGA33.
n a case is a SGA33 the defendant may fle an
answer interposing as a defense that the case is
a SGA33. &he hearing on the defense of a SGA33
shall be summary in nature. &he party fling the
action assailed as a SGA33 shall prove by
preponderance of evidence that the action is not
a SGA33 and is a valid claim.
&he defense of a SGA33 shall be resolved within
thirty ()F) days after the summary hearing. f the
court dismisses the action, the court may award
damages, attorneyDs fees and costs of suit under
a counterclaim if such has been fled. &he
dismissal shall be with pre+udice. f the court
re+ects the defense of a SGA33, the evidence
adduced during the summary hearing shall be
treated as evidence of the parties on the merits
of the case. Since a motion to dismiss is a
prohibited pleading, SGA33 as an a5rmative
defense should be raised in an answer along with
other defenses that may be raised in the case
alleged to be a SGA33.
SPECIAL PROCEDURE > PROCEEDING
WRIT OF +ALI+ASAN .WO+0
&he writ is a e'traordinary remedy available to a
natural or +uridical person, entity authori6ed by
law, people@s organi6ation, non.governmental
organi6ation, or any public interest group
accredited by or registered with any government
agency, on behalf of persons whose constitutional
right to a balanced and healthful ecology is
violated, or threatened with violation by an
unlawful act or omission of a public o5cial or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to pre+udice the life, health or
property of inhabitants in two or more cities or
provinces.
&hose who may fle for this remedy must
represent the inhabitants pre+udiced by the
environmental damage sub+ect of the writ to be
fled with the S! or !A. &he applicant is e'empted
from !"+$ent of 'oc:et fees.
PRO%IBITED PLEADINGS AND MOTIONS
a) ;otion to dismiss#
b) ;otion for e'tension of time to fle return#
c) ;otion for postponement#
d) ;otion for a bill of particulars#
e) !ounterclaim or cross.claim#
f) &hird.party complaint#
g) ,eply# and
h) ;otion to declare respondent in default.
DISCOVERY MEASURES
A party may fle a verifed motion for the
following reliefs"
a) Acular nspection . the court may order
any person in possession or control of
a designated land or other property to
permit entry for the purpose of
inspecting or photographing the
property or any relevant ob+ect or
operation thereon.
b) 3roduction or inspection of documents
or things . the court may order any
person in possession, custody or
control of any designated documents,
papers, boo2s, accounts, letters,
photographs, ob+ects or tangible
things, or ob+ects in digiti6ed or
electronic form, which constitute or
contain evidence relevant to the
205
petition or the return, to produce and
permit their inspection, copying or
photographing by or on behalf of the
movant.
WRIT OF CONTINUING MANDAMUS
A writ issued by a court in an environmental case
directing any agency or instrumentality of the
government or o5cer thereof to perform an act
or series of acts decreed by fnal +udgment which
shall remain e/ective until +udgment is fully
satisfed. 1he !etition sh" cont"in " s)orn
certi?c"tion of non/foru$ sho!!in3.
10 GROUNDS FOR CONTINUING MANDAMUS
a) 0hen any agency or instrumentality of
the government or o5cer thereof
unlawfully neglects the performance of
an act which the law specifcally en+oins
as a duty resulting from an o5ce, trust
or station in connection with the
enforcement or violation of an
environmental law rule or regulation or
a right therein#
b) 0hen any agency or instrumentality of
the government or o5cer thereof
unlawfully e'cludes another from the
use or en+oyment of such right.
20 RE<UISITES CONTINUING MANDAMUS
a) &here must be a clear legal right or
duty#
b) &he act to be performed must be
practical#
c) ,espondent must be e'ercising a
ministerial duty#
d) &he duty or act to be performed must
be in connection with the enforcement
or violation of an environmental law,
rule or regulation or a right# and
e) &here is no other plain, speedy, and
ade-uate remedy in the ordinary
course of law.
&he petition shall be fled with the ,egional &rial
!ourt e'ercising +urisdiction over the territory
where the actionable neglect or omission
occurred or with the !ourt of Appeals or the
Supreme !ourt. &he petitioner shall be e'empt
from the payment of doc2et fees.
f warranted, the court shall grant the privilege of
the writ of continuing mandamus re-uiring
respondent to perform an act or series of acts
until the +udgment is fully satisfed and to grant
such other reliefs as may be warranted resulting
from the wrongful or illegal acts of the
respondent. >pon full satisfaction of the
+udgment, a fnal return of the writ shall be made
to the court by the respondent. f the court fnds
that the +udgment has been fully implemented,
the satisfaction of +udgment shall be entered in
the court doc2et.
&he issuance of a &93A is made available as an
au'illary remedy prior to the issuance of the writ
itself. As a special civil action, the 0o!;a may be
availed of to compel the performance of an act
specifcally en+oined by law. ts availability as a
special civil action li2ewise complements its role
as a fnal relief in environmental civil cases and in
the 0AT, where continuing mandamus may
li2ewise be issued should the facts merit such
relief.
WRIT OF CONTINUING MANDAMUS VS=
WRIT OF +ALI+ASAN
(ub%ect matter. W2CM# is directed against the
unlawful neglect in the performance of an act
which the law specifcally en+oins as a duty
resulting from an o5ce, trust or station in
connection with the enforcement or violation of
an environmental law rule or regulation or a right
therein# or (a) the unlawful e'clusion of another
from the use or en+oyment of such right and in
both instances, there is no other plain, speedy
and ade-uate remedy in the ordinary course of
law. A writ of 2ali2asan is available against
unlawful act or omission of a public o5cial or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to pre+udice the life, health or
property of inhabitants in two or more cities or
provinces. n addition, magnitude of
environmental damage is a condition sine -ua
non in a petition for the issuance of a writ of
2ali2asan and must be contained in the verifed
petition.
,ho may #le. A writ of 12('"(u"(: #(!#us
is available to a broad range of persons such as
natural or +uridical person, entity authori6ed by
law, peopleDs organi6ation, <BA, or any public
interest group accredited by or registered with
any government agency, on behalf of persons
whose right to a balanced and healthful ecology
is violated or threatened to be violated.
0espondent. &he respondent in a petition for
continuing mandamus is only the government or
its o5cers, unli2e in a petition for writ of
2ali2asan, where the respondent may be a private
individual or entity.
206
7.emption from doc"et fees. &he application
for either petition is e'empted from the payment
of doc2et fees.
Eenue= A petition for the issuance of a writ of
continuing mandamus may be fled in the
following" (a) the ,&! e'ercising +urisdiction over
the territory where the actionable neglect or
omission occurred# (b) the !A# or (c) the S!.
Biven the magnitude of the damage, the
application for the issuance of a writ of 2ali2asan
can only be fled with the S! or any station of the
!A.
!iscovery measures. &he ,ule on the 0!;
does not contain any provision for discovery
measures, unli2e the ,ule on 0AT which
incorporates the procedural environmental right
of access to information through the use of
discovery measures such as ocular inspection
order and production order.
!amages for personal in%ury. &he 0!; allows
damages for the malicious neglect of the
performance of the legal duty of the respondent,
identical ,ule 85. n contrast, no damages may
be awarded in a petition for the issuance of a
0AT consistent with the public interest character
of the petition. A party who avails of this petition
but who also wishes to be indemnifed for in+uries
su/ered may fle another suit for the recovery of
damages since the ,ule on 0AT allows for the
institution of separate actions.
CRIMINAL PROCEDURE
W%O MAY FILE
Any o/ended party, peace o5cer or any public
o5cer charged with the enforcement of an
environmental law.
INSTITUTION OF CRIMINAL AND CIVIL
ACTION
0hen a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the o/ense charged, shall be deemed
instituted with the criminal action ><G9SS the
complainant
a) waives the civil action
b) reserves the right to institute it separately
c) institutes the civil action prior to the
criminal action.
>nless the civil action has been instituted
prior to the criminal action, the reservation of
the right to institute separately the civil action
shall be made during arraignment.
ARREST WIT%OUT WARRANTJ W%EN VALID
.SEC= 1/ RULE 110
A peace o5cer or an individual deputi6ed by the
proper government agency may, without a
warrant, arrest a person"
a) 0hen, in his presence, the person to be
arrested has committed, is actually
committing or is attempting to commit an
o/ense# or
b) 0hen an o/ense has +ust been committed,
and he has probable cause to believe
based on personal 2nowledge of facts or
circumstances that the person to be
arrested has committed it.
c) ndividuals deputi6ed by the proper
government agency who are enforcing
environmental laws shall en+oy the
3,9S>;3&A< A= ,9B>GA,&O under
Section )(m), ,ule %)% of the ,ules of
!ourt when e/ecting arrests for violations
of environmental laws.
PROCEDURE IN T%E CUSTODY AND
DISPOSITION OF SEIIED ITEMS
!ustody and disposition of sei6ed items shall be
in accordance with the applicable laws or rules
promulgated by the concerned government
agency.
n the absence of applicable laws or rules
promulgated by the concerned government
agency, the following procedure shall be
observed"
a) &he apprehending o5cer having initial
custody and control of the sei6ed items,
e-uipment, paraphernalia, conveyances
and instruments shall physically inventory
and whenever practicable, photograph the
same in the presence of the person from
whom such items were sei6ed.
b) &hereafter, the apprehending o5cer shall
submit to the issuing court the return of
the search warrant within fve (5) days
from date of sei6ure or in case of
warrantless arrest, submit within fve (5)
days from date of sei6ure, the inventory
report, compliance report, photographs,
representative samples and other
pertinent documents to the public
prosecutor for appropriate action.
c) >pon motion by any interested party, the
court may direct the auction sale of sei6ed
items, e-uipment, paraphernalia, tools or
instruments of the crime. &he court shall,
207
after hearing, f' the minimum bid price
based on the recommendation of the
concerned government agency. &he sheri/
shall conduct the auction.
d) &he auction sale shall be with notice to the
accused, the person from whom the items
were sei6ed, or the owner thereof and the
concerned government agency.
e) &he notice of auction shall be posted in
three conspicuous places in the city or
municipality where the items, e-uipment,
paraphernalia, tools or instruments of the
crime were sei6ed.
f) &he proceeds shall be held in trust and
deposited with the government depository
ban2 for disposition according to the
+udgment.
BAIL
W%ERE TO FILE
$ail may be fled with the court where the
case is pending, or in the absence or
unavailability of the +udge thereof, with
any regional trial +udge, metropolitan trial
+udge, municipal trial +udge or municipal
circuit trial +udge in the province, city or
municipality.
f the accused is arrested in a province,
city or municipality other than where the
case is pending, bail may also be fled with
any ,egional &rial !ourt of said place, or if
no +udge thereof is available, with any
metropolitan trial +udge, municipal trial
+udge or municipal circuit trial +udge
therein.
f the court grants bail, the court may
issue a hold.departure order in
appropriate cases.
DUTIES OF T%E COURT
$efore granting the application for bail, the +udge
must read the information in a language 2nown to
and understood by the accused and re-uire the
accused to sign a written underta2ing, as follows"
a) &o appear before the court that issued the
warrant of arrest for arraignment purposes
on the date scheduled, and if the accused
fails to appear without +ustifcation on the
date of arraignment, accused waives the
reading of the information and authori6es
the court to enter a plea of not guilty on
behalf of the accused and to set the case
for trial#
b) &o appear whenever re-uired by the court
where the case is pending# and
c) &o waive the right of the accused to be
present at the trial, and upon failure of the
accused to appear without +ustifcation
and despite due notice, the trial may
proceed in absentia.
ARRAIGNMENT
&he court shall set the arraignment of the
accused within ffteen (%5) days from the time it
ac-uires +urisdiction over the accused, with notice
to the public prosecutor and o/ended party or
concerned government agency that it will
entertain plea.bargaining on the date of the
arraignment.
PLEA*BARGAINING
An the scheduled date of arraignment, the court
shall consider plea.bargaining arrangements.
0here the prosecution and o/ended party or
concerned government agency agree to the plea
o/ered by the accused, the court shall"
%) ssue an order which contains the plea.
bargaining arrived at#
() 3roceed to receive evidence on the
civil aspect of the case, if any# and
)) ,ender and promulgate +udgment of
conviction, including the civil liability
for damages.
Pe"/%"r3"inin3 is consi'ere' "t "rr"i3n$ent
in or'er to "6oi' the situ"tion )here "n initi"
!e" is ch"n3e' in the course of the tri" in
6ie) of " successfu !e" %"r3"in.
PRE*TRIAL
After the arraignment, the court shall set the 3,9.
&,AG !A<=9,9<!9 within thirty ()F) days. t
may refer the case to the branch cler2 of court, if
warranted, for a preliminary conference to be set
at least three ()) days prior to the pre.trial.
DUTY OF T%E ,UDGE
%) 3lace the parties and their counsels under
oath#
() Adopt the minutes of the preliminary
conference as part of the pre.trial
proceedings, confrm mar2ings of e'hibits
or substituted photocopies and admissions
on the genuineness and due e'ecution of
documents, and list ob+ect and testimonial
evidence#
)) Scrutini6e the information and the
statements in the a5davits and other
documents which form part of the record
of the preliminary investigation together
with other documents identifed and
mar2ed as e'hibits to determine further
admissions of facts as to"
208
a. &he courtDs territorial +urisdiction
relative to the o/ense(s) charged#
b. Hualifcation of e'pert witnesses#
and
c. Amount of damages#
*) ?efne factual and legal issues#
5) As2 parties to agree on the specifc trial
dates and adhere to the Iow chart
determined by the court which shall
contain the time frames for the di/erent
stages of the proceeding up to
promulgation of decision#
8) ,e-uire the parties to submit to the
branch cler2 of court the names,
addresses and contact numbers of
witnesses that need to be summoned by
subpoena# and
J) !onsider modifcation of order of trial if
the accused admits the charge but
interposes a lawful defense.
AGREEMENTS OR ADMISSIONS * All
agreements or admissions made or entered
during the pre.trial conference shall be reduced in
writing and signed by the accused and counsel#
otherwise, they cannot be used against the
accused. &he agreements covering the matters
referred to in Section %, ,ule %%K of the ,ules of
!ourt shall be approved by the court.
Re12-! 28 9-21ee!"(:s= All proceedings during
the pre.trial shall be recorded, the transcripts
prepared and the minutes signed by the parties
or their counsels.
PRE*TRIAL ORDER . &he court shall issue a pre.
trial order within ten (%F) days after the
termination of the pre.trial, setting forth the
actions ta2en during the pre.trial conference, the
facts stipulated, the admissions made, evidence
mar2ed, the number of witnesses to be presented
and the schedule of trial. &he order shall bind the
parties and control the course of action during
the trial.
SUBSIDIARY LIABILITY
n case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under +udgment, enforce such subsidiary liability
against a person or corporation subsidiarily liable
under Article %F( and Article %F) of the ,evised
3enal !ode.
SLAPP IN CRIMINAL CASES
>pon the fling of an information in court and
before arraignment, the accused may fle a
motion to dismiss on the ground that the criminal
action is a SGA33.
&he hearing on the defense of a SGA33 shall be
summary in nature. &he party see2ing the
dismissal of the case must prove by substantial
evidence that his acts for the enforcement of
environmental law are a legitimate action for the
protection, preservation and rehabilitation of the
environment. &he party fling the action assailed
as a SGA33 shall prove by preponderance of
evidence that the action is not a SGA33.
&he court shall grant the motion if the accused
establishes in the summary hearing that the
criminal case has been fled with intent to harass,
ve', e'ert undue pressure or stiIe any legal
recourse that any person, institution or the
government has ta2en or may ta2e in the
enforcement of environmental laws, protection of
the environment or assertion of environmental
rights. f the court denies the motion, the court
shall immediately proceed with the arraignment
of the accused.
EVIDENCE
PRECAUTIONARY PRINCIPLE
P-e1#u'"2(#-5 9-"(1"9le states that when
human activities may lead to threats of serious
and irreversible damage to the environment that
is scientifcally plausible but uncertain, actions
shall be ta2en to avoid or diminish that threat.
0hen there is a lac2 of full scientifc certainty in
establishing a casual lin2 between human activity
and environmental e/ect, the court shall apply
the precautionary principle in resolving the case
before it. &he constitutional right of the people to
a balanced and healthful ecology shall be given
the beneft of the doubt.
n applying the precautionary principle, the
following factors, among others, may be
considered"
a) threats to human life or health#
b) ine-uity to present or future generations#
or
c) pre+udice to the environment without legal
consideration of the environmental rights
of those a/ected.
DOCUMENTARY EVIDENCE
3hotographic, video and similar evidence of
events, acts, transaction of wildlife, wildlife by.
products or derivatives, forest products or
mineral resources sub+ect of a case shall be
209
admissible when authenticated by the person
who too2 the same, by some other person
present when said evidence was ta2en, or by any
other person competent to testify on the
accuracy thereof.
9ntries in o5cial records made in the
performance of his duty by a public o5cer of the
3hilippines, or by a person in performance of a
duty especially en+oined by law, are prima facie
evidence of the facts therein stated.