FEU Remedial Law Memory Aid 2006

M E M O R Y
A I D
CBO OVER-ALL CHAIRPERSON: Evangeline Co

ASSISTANT CHAIRPERSON: Rose Lyn Rabanera
ACADEMICS COMMITTEE - HEADS:
Reigel Prado, Omar Gabrieles
SECRETARIAT HEAD: Romino Arzadon
FINANCE COMMITTEE HEAD: Kyan Sioco
LOGISTICS COMMITTEE - HEAD: Janis Ruckenbrod
REMEDIAL LAW COMMITTEE
HEADS: Joseph Stephen Apsay, Tareeq Radjaie
CO-HEAD: Roberto Santos
CIVIL PROCEDURE: Ronald dela Paz
CRIMINAL PROCEDURE: Christian May Godinez
MEMBERS: Evangeline Co, Paolo Ramiro
SPECIAL PROCEEDINGS: Joana Bilongilot, Christy Dimabuyu
EVIDENCE: Loreto Dapon Jr.
MEMBERS: Francis Belandres, Regina Bernabe, Briccio Lista
SUBJECT ADVISERS:
Atty. Jos Aguila Grapilon
Atty. Aeneas Eli Diaz
Atty. Wylie Paler
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
CBO OVER-ALL CHAIR: Evangeline Co; ASSISTANT CHAIR: Rose Lyn Rabanera; SECRETARIAT - HEAD: Romino Arzadon; ACADEMICS - HEADS:
Reigel Prado, Omar Gabrieles; FINANCE HEAD: Kyan Sioco; LOGISTICS - HEAD: Janis Ruckenbrod
M E M O R Y
A I D
I N
R E M E D I A L
Preliminary Concepts
Jurisdiction
the power and authority of the court to hear,
try and decide a case.
The issue of jurisdiction is both vital and
fatal; vital, because its presence is the source of
power for the trial court to act on all matters
complained of; fatal, because its absence
renders all its actuations null and void.
Jurisdiction cannot be fixed by the will of
the parties; it cannot be acquired through, or
waived, enlarged or diminished by, any act or
omission of the parties. (Municipality of Sogod
vs. Rosal, 201 SCRA 632)
Note however, that aside from jurisdiction
over the subject mater, a court must have
jurisdiction over the case, the persons of the
parties, the issues, and the res before it can try a
particular case.
But while jurisdiction over the subject
matter is a matter of substantive law, the other
kinds of jurisdiction are a matter of procedure.
(Valdepeas vs. People, 16 SCRA 871; People
vs. Mariano, 71 SCRA 600)
Jurisdiction
The authority to
decide a case at all
and not the decision
rendered therein is
what makes up
jurisdiction
Exercise of
Jurisdiction
Where there is
jurisdiction over the
person and the subject
matter, the decision of
all other questions
arising in the case is
but an exercise of
jurisdiction
L A W
jurisdiction,
the
proceedings are null
and
void
unconditionally
proceedings are void only

when the error is shown
to have caused harm.
(Banco Filipino-Espaol
vs. Palanca, 3 Phil. 921)
Error of
Jurisdiction
Correctible only by
certiorari
A judgment
rendered without
jurisdiction is void
Error of Judgment
Reviewable only by
appeal
An erroneous
judgment by a
competent court is not
a void judgment
Jurisdiction Over the Subject Matter vs.

Jurisdiction Over a Particular Case
1. Jurisdiction over the subject matter is
conferred by law and refers to the power of the
court to try and hear cases belonging to the
general class to which a particular proceeding
belongs; jurisdiction over a particular case is
invested by the act of the plaintiff and attaches
upon the filing of the complaint or information.
2. The court may have jurisdiction over the
subject matter, like naturalization, but it does
not acquire jurisdiction over the case itself
until its jurisdiction is invoked with the filing of
the complaint or petition.
Jurisdiction Over the Person
the power obtained by the service of
summons or other process or notice in a
defendant personally within the territorial
limits of the jurisdiction or by voluntary
appearance in person or by attorney, to
render a personal judgment.
Jurisdiction
Deals with the power
of the courts in the
real and substantive
sense
Procedure
Deals with the means by
which such powers are
put into action or the
means by which the
power of the courts are
made effective. (Manila
Railroad
Co.
vs.
Attorney General, 20
Phil. 523)
As a consequence The effects of a mere
of
lack
of procedural error, the
Jurisdiction Over the Subject of

Litigation
the power of a court over the thing before it,
without regard to the person who may be
interested therein, and the presence of the
res within the territorial dominion of the
sovereign power under authority of which
the courts act may confer such jurisdiction.
Jurisdiction over the issue, or person, or res
may be acquired by the act or omission of
parties. Nonetheless, the will or act of the
parties cannot fix, enlarge or diminish these
jurisdictional matters.
R E M E D I A L
L A W
ADVISERS: Atty. Jos Aguila Grapilon, Atty. Aeneas Eli Diaz, Atty. Wylie Paler
REMEDIAL LAW HEADS: Joseph Stephen Apsay, Tareeq Radjaie; CO-HEAD: Roberto Santos
MEMBERS: Francis Belandres, Regina Bernabe, Joana Bilongilot, Evangeline Co, Loreto Dapon Jr.., Ronald dela Paz, Christy Dimabuyu,
Christian May Godinez, Briccio Lista, Paolo Ramiro
Page 1 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Requisites of Judicial Due Process:

1. A court or tribunal clothed with judicial
power to hear and determine the matter
before it;
2. Jurisdiction must be lawfully acquired over
the person of the defendant or over the
property which is the subject of the
proceeding;
3. The defendant must be given an opportunity
to be heard;
4. Judgment must be rendered upon lawful
hearing
Requisites of Administrative Due
Process:
1. An impartial tribunal constituted to
determine the right involved.
2. Due notice and opportunity to be heard be
given.
3. The procedure at the hearing be consistent
with the essentials of a fair trial.
4. The proceedings be conducted in such a way
that there will be opportunity for a court to
determine whether the applicable rules of
law and procedure were observed
(Mabuhay Textile Mills Corporation vs.
Ongpin, GRN L-67784 February 28, 1986)
Judicial Power the right to determine
controversies arising between adverse litigants
duly instituted in courts of proper jurisdiction.
L A W
The Theory of Political Question refers

to those questions which:
1. Under the Constitution, are to be decided by
the people in their sovereign capacity, e.g.,
the wisdom of electing movie stars, media
practitioners and sports personalities; or
2. In regard to which full discretionary
authority has been delegated to the
legislative
or
executive
branch
of
government;
concerned
with
issues
dependent upon the wisdom, not legality, of
a particular measure, e.g., the wisdom of
enacting more tax laws, or of pardoning
certain convicts.
Jurisdiction over Political Questions
Rule: When a litigation raises matters
challenging
the
exclusive
political
prerogatives of a co-equal branch of
government,
the
judiciary
should
immediately and simply dismiss the petition
on the ground of lack of jurisdiction.
Exception: When a petition sufficiently alleges
prima
facie
infringements
of
the
Constitution or the law or jurisprudence or
there is a grave abuse of discretion, the
Court acquires jurisdiction over the subject
matter.
Doctrine of Primary Jurisdiction
Two Judicial Review Powers

1. Ordinary power to settle actual
controversies involving rights which are
legally demandable and enforceable.
2. Extraordinary power or certiorari
power to decide issues involving grave
abuse of discretion on the part of any
branch or instrumentality of government,
including the legislative and executive
departments.
Rule: If a case is such that its determination

requires the expertise, specialized skills and
knowledge of the proper administrative
bodies because technical matters or
intricate questions of fact are involved, then
relief must first be obtained in an
administrative proceeding before a remedy
will be supplied by the courts even though
the matter is within the proper jurisdiction
of a court.
Grave Abuse of Discretion

capricious and whimsical exercise of
judgment by reason of passion or personal
hostility, so patent and gross as to amount
to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined, or to
act at all in contemplation of law
includes any action done contrary to the
Constitution, the law or jurisprudence
regardless of the reasons therefor
Exceptions:
1. Where the findings are not supported by
evidence.
2. Where the findings are vitiated by fraud,
imposition, or collusion.
3. Where the procedure which lead to the
factual findings are irregular.
4. When palpable errors are committed.
5. When grave abuse of discretion, arbitrariness
or capriciousness is manifested.
R E M E D I A L
L A W
Page 2 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The Doctrine of Non-interference in

Associations
Rule: The Courts will not interfere with the
internal affairs of an unincorporated
association so as to settle disputes between
the members on question of policy,
discipline, or internal government, so long
as the government of the society is fairly and
honestly administered in conformity with
laws and the law of the land no property or
civil rights are invaded.
Exceptions:
1. Where law and justice so require, and the
proceeding of the association are subject to
judicial review, where there is fraud,
oppression, or bad faith, or where the action
complained of is capricious, arbitrary or
unjustly discriminating. (Fortunato vs.
Palma, GRN 70203, Dec. 18, 1987, 156
SCRA 691)
2. If it is shown that the Church authorities
have acted outside the scope of their
authorities or in a manner contrary to their
organic law and rules and the Courts
interference is necessary for the protection
of Civil and Property rights. (Negros
District Conference, Inc. vs. CA, 108 Scra
458, 1981)
3. Where the proceedings in question are
violative of the laws of society, or the law of
the land, as by depriving a person of due
process of law.
4. Where there is lack of jurisdiction on the
part of the tribunal conducting the
proceedings, where the organization
exceeds its powers, or where the
proceedings are otherwise illegal. (Lions
Club International vs. Amores, 121 SCRA
621, 1983)
L A W
259, 1984; Santos vs. Bayhon, GRN 88643,

July 23, 1991, 199 SCRA 525)
2. When the Sheriff, acting beyond the bounds
of his office seizes a stranger's property.
(Uy, Jr. vs. CA, GRN 83897, Nov. 9, 1990)
Jurisdiction Cannot be Waived
Rule: The issue of jurisdiction is not lost by
waiver or by estoppel. The jurisdiction of
court is a matter of law and may not be
conferred by consent or agreement of the
parties. The lack of jurisdiction of a court
may be raised at any stage of the proceeding
even on appeal. (Calimlim vs. Ramirez, 118
SCRA 399, 1982)
Exceptions:
1. Estoppel by Laches to Question
Jurisdiction
A party cannot invoke the jurisdiction of a
court to secure affirmative relief against his
opponent and, after obtaining or failing to
obtain such relief, repudiate or question that
same jurisdiction. (Tijam vs. Sibonghanoy, 23
SCRA 29, 1968)
However, in subsequent cases, the Supreme
Court observed that the ruling in Tijam vs.
Sibonghanoy that a party is estopped from
questioning the jurisdiction applies only to
exceptional circumstances and reiterated the
doctrine that jurisdiction over the subject
matter of the action is a matter of law and may
not be conferred by consent or agreement of the
parties. The lack of jurisdiction may be raised at
any stage of the proceedings, even on appeal.
(Calimlim vs. Ramirez, 118 SCRA 399)
2. Active Participation in Trial even if
Jurisdiction is Challenged
Doctrine of Judicial Stability

Rule: No court has authority to interfere by
injunction with the judgment of another court
of coordinate jurisdiction (Cojuangco vs.
Villegas, 184 SCRA 374); that the judgment of a
court of competent jurisdiction may not be
opened, modified or vacated by any court of
concurrent jurisdiction.
Exceptions:
1. Where a third party claimant is involved.
(Traders Royal Bank vs. IAC, 133 SCRA
The La Naval Doctrines on Jurisdiction

1. Jurisdiction over the person must be
seasonably raised, that is, pleaded in a
motion to dismiss or by way of an
affirmative defense in an answer. Voluntary
appearance shall be deemed a waiver of this
defense. The assertion, however, of
affirmative defenses shall not be construed
as an estoppel or as a waiver of such
defense.
R E M E D I A L
L A W
Page 3 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. Where the court itself clearly has no

jurisdiction over the subject matter or the
nature of the action, the invocation of this
defense may be done at any time. It is
neither for the courts nor the parties to
violate or disregard that rule, let alone to
confer that jurisdiction, this matter being
legislative in character. (La Naval vs. CA,
236 SCRA 78)
L A W
2. The question of constitutionality must be

raised by the proper party.
3. The question must be raised at the earliest
opportunity.
4. The determination of the constitutionality of
the statute must be necessary to a final
determination of the case.
CLASSIFICATIONS OF
ORDINARY CIVIL ACTIONS
When is Jurisdiction Determined?

Jurisdiction is determined by the law at the
time of the filing of the complaint. The
jurisdiction of a court to try a criminal action is
determined by the law in force at the time of
instituting the action and not at the time of the
commission of the crime. Ordinarily, the
subsequent happening of events will not
operate to wrest jurisdiction.
I. As to nature, cause or foundation

A. Real action
one founded on privity of real estate and
seeks to recover a specific real property
or its possession
one affecting title to real property for the
recovery of possession, or of an interest
therein
Doctrine of Adherence of Jurisdiction

Rule: Jurisdiction, once it attaches cannot be
ousted by the happening of subsequent
events although of such a character which
should have prevented jurisdiction from
attaching in the first instance.
Exceptions:
1. Where a subsequent statute expressly
prohibits the continued exercise of
jurisdiction.
2. Where the law penalizing an act which is
punishable is repealed by a subsequent law.
3. When accused is deprived of his
constitutional right such as where the court
fails to provide counsel for the accused who
is unable to obtain one and does not
intelligently waive his constitutional right.
4. Where the statute expressly provides, or is
construed to the effect that it is intended to
operate as to actions pending before its
enactment.
5. When the proceedings in the Court
acquiring jurisdiction is terminated,
abandoned or declared void.
6. Once appeal has been perfected.
7. When the statute is curative.
8. When the case is consolidated with other
cases pending in another court.
Requisites to Question Constitutionality
of a Law
B. Personal action
one founded on privity of contract or the
recovery of personal property or
damages
one that is brought for the recovery of
personal property, for the enforcement
of some contract or for the recovery of
damages, or the recovery of damages for
the commission of an injury to the
person or property
II. As to place
A. Transitory
an action founded on the privity of
contract between the parties.
Example: The enforcement of debt or
covenant must be brought in the place
where the party resides.
B. Local
an action founded on privity of estate
only and there is no privity of contract
and it must be brought in a particular
place.
III. As to object or against which the
action is directed
A. In Personam
a proceeding to enforce personal rights
and obligations brought against the
1. There must be an actual controversy.

R E M E D I A L
L A W
Page 4 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
person and based on jurisdiction of the

person, although it may involve his right
to, or the exercise of ownership of,
specific property, or seek to compel him
to control or dispose of it
jurisdiction is acquired through personal
notices to the parties in interest
B. In Rem
the object is to bar indefinitely all who
might be minded to make an objection
of any sort against the right sought to be
established
jurisdiction
is
acquired
through
publication of notice
C. Quasi In Rem
a proceeding which is not strictly and
purely in rem but is brought against a
defendant personally although the real
object is to deal with a particular
property or subject it to the discharge of
claim asserted therein
jurisdiction over the person of the
defendant is not necessary; service of
summons is required only for the
purpose of complying with due process.
In Personam
action against a person on
the basis of his personal
liability
Jurisdiction is over the
person
In Rem
action against the thing or
property itself
Summons is served either

personally or by substituted
service
It is sufficient that summons

is served by publication
and/or posting of notices
Judgment is conclusive
between the parties
An individual is named as
defendant
Judgment is conclusive
against the whole world
There
is
no
named
defendant
Jurisdiction is over the res

through service of summons
by publication or posting of
notices
TRIBAL COURTS (R.A. 8371)

This law provides for the creation of the
National Commission for Indigenous Peoples
(NCIP) which has jurisdiction over disputes
involving members of cultural communities
whose decision is appeallable to the Court of
Appeals.
Under this law, the NCIP through its
regional offices, shall have jurisdiction over all
claims and disputes involving ICCs/IPs:
Provided, however, That no such dispute shall
be brought to the NCIP unless the parties have
exhausted all remedies provided under their
customary laws to settle the dispute as certified
by the Council of Elders/Leaders who
L A W
Quasi In Rem
action to subject a partys interest to
the obligation or lien burdening the
property
Jurisdiction over the party is not
necessary; it is enough that due
process is observed.
Summons is served extraterritorially

if defendant is an absent
non-resident; in case of an absent
resident, same as above, or by
substituted service
Judgment is conclusive between the
parties
An individual is named as defendant
participated in the attempt to settle the dispute

that the same has not been resolved, which
certification shall be a condition precedent to
the filing of a petition with the NCIP.
THE KATARUNGANG PAMBARANGAY

LAW
This law provides for the amicable settlement of
disputes at the barangay level as a compulsory
alternative to the formal adjudication of
disputes.
Parties: only individuals shall be parties either
as complainants or respondents. Juridical
persons cannot be parties.
R E M E D I A L
L A W
Page 5 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Venue of Disputes:
1. Parties residing in the same barangay
in said barangay
2. Parties
residing
in
different
barangays in the same city or
municipality in the barangay where the
respondent resides, or in the barangay of
where any of the respondents resides, at the
choice of the complainant
3. Where real property is involved in
the barangay where real property or larger
portion thereof is situated
4. Where parties are employed in the
same workplace or enrolled for study
in the same institution in the barangay
where such workplace or institution is
located
Condition Precedent
All disputes may be the subject of
proceedings for amicable settlement and prior
recourse to barangay conciliation is a condition
precedent before filing a complaint in court or
government offices.
9.
10.
11.
12.
13.
L A W
d. Actions barred by Statute of

Limitations
Disputes which the President may
determine
Comprehensive Agrarian Reform Law
cases
Involving status of a person
Labor disputes
Actions to annul judgment upon a
compromise
Personal Appearance The parties must

appear in person without the assistance of
counsel or the intervention of anyone. Minors
and incompetents may be assisted by their next
of kin who is not a lawyer.
Issuance of Summons The Pangkat ng
Tagapagkasundo may issue summons for the
personal appearance of parties and witnesses
before it.
Effect When Parties Fail to Appear
1. As to Complainant the complaint may
be dismissed and shall bar the complainant
from seeking judicial recourse.
Exceptions: Cases where

1. One party is the government
2. One party is a public officer or employee
in relation to his official functions
3. Where real property is located in
different cities and municipalities,
UNLESS the parties agree to submit
dispute to appropriate Lupon
4. Complaint by or against juridical
persons.
5. Parties residing in barangays of different
cities or municipalities, EXCEPT where
barangays adjoin each other and they
submit amicable settlement by a Lupon
6. Offenses for which the maximum
penalty imposable is imprisonment
exceeding one (1) year or a fine
exceeding P5,000
7. Offenses where there is no private
offended party
8. Where urgent legal action is necessary to
prevent injustice such as:
a. Where accused is under police
investigation or detention
b. Petitions for habeas corpus
c. Actions
with
provisional
remedies
2. As to Respondent any counterclaim he

has made may be dismissed and shall bar him
from filing such counterclaim in court or any
government office for adjudication; it shall be
the basis for the issuance of a certification for
filing complainants case in court or
government agencies or office.
Suspension of Prescriptive Period
The prescriptive periods for offenses and
cause of action under existing laws shall be
interrupted upon the filing of the complaint
with the Punong Barangay, provided that such
interruption shall NOT exceed sixty (60) days
from the filing of the complaint with the
Punong Barangay.
Proceedings in the KP Law
1. Mediation
2. Arbitration
3. Conciliation
Effect of Amicable Settlement
The amicable settlement and arbitration
award shall have the force and effect of a final
R E M E D I A L
L A W
Page 6 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
judgment of court upon the expiration of ten

(10) days from the date thereof, UNLESS
repudiated or sought to be nullified before the
city or municipal court.
Remedies
Settlement
Against
an
Amicable
1. Repudiation
2. Annulment
Note: In case the court referred the case to the
Katarungang Pambarangay Law, any agreement
made or arrived at in the barangay should be
brought back to the court.
The conciliation procedure required under
the Katarungang Pambarangay Law is NOT A
JURISDICTIONAL REQUIREMENT in the
sense that failure to have prior recourse to it
does not deprive the court of its jurisdiction,
either over the subject matter or over the
person of the defendant. Non-compliance with
the condition precedent under said law does not
prevent a court of competent jurisdiction from
exercising its power of adjudication over a case
where defendants FAIL to object to such
exercise of jurisdiction. BUT such objection
should be seasonably made before the court
first taking cognizance of the complaint, and
must be raised in the Answer or in such other
pleading allowed under the Rules of Court.
(Junson vs. Martinez, GRN 141324, July 8,
2003, 405 SCRA 390)
Principal
Court
Functions of the
Principle of Judicial Hierarchy

By hierarchy of courts is meant that
while the Supreme Court, the Court of Appeals
and the Regional Trial Courts have concurrent
jurisdiction to issue original writs of certiorari,
prohibition, mandamus, quo warranto and
habeas corpus, such concurrence does not
accord litigants unrestrained freedom of
choice of the court to which application
therefore may be directed. The application
should be filed with the court of lower level
unless the importance of the issue involved
deserves the action of the court of higher level.
Exception: On several instances where the
Supreme Court was confronted with cases of
national interest and of serious implications, it
never hesitated to set aside the rule and proceed
with the determination of the case. (COMELEC
vs. Quijano-Padilla, 389 SCRA 353)
OUTLINE OF JURISDICTION
I. SUPREME COURT
A. Original
1. Exclusive
Petitions for the issuance of writs of
certiorari, prohibition and mandamus against
the following:
1.1. Court of Appeals
1.2. Commission on Elections
1.3. Commission o Audit
1.4. Sandiganbayan
1.5. Court of Tax Appeals
Supreme
1. Power of Adjudication (Judicial Power)

2. Administrative Power (Disciplinary Power)
3. Rule Making Power
L A W
2. Concurrent
2.1. with Court of Appeals
Scope of Rule Making Power of the SC

1. Protection and enforcement of constitutional
rights
2. Pleading, practice and procedure in all courts
3. Admission to the practice of law, the IBP
4. Legal assistance to the underprivileged
The 1987 Constitution took away the power
of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.
(Echegaray vs. Secretary of Justice, GRN
132601, Jan. 19, 1999)
R E M E D I A L
Petitions for issuance of writs of

certiorari, prohibition and mandamus
against the following:
2.1.1. Civil Service Commission
2.1.2. Central Board of Assessment
Appeals
2.1.3. Quasi-Judicial Agencies
2.1.4. Regional Trial Courts and lower
courts
2.2. with Court of Appeals and RTC
L A W
Page 7 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2.2.1. Petitions for habeas corpus

and quo warranto
2.2.2. Petitions for issuance of writs
of certiorari, prohibition and mandamus
against the lower courts or bodies
2.3. with Regional Trial Courts
L A W
II. COURT OF APPEALS

A. Original
1. Exclusive
Actions for annulment of judgments of
Regional Trial Courts
2. Concurrent
Actions affecting ambassadors and

other public ministers and consuls
2.1. with Supreme Court

Refer to Sec.2.1 above under I.A. supra
B. Appellate
1. Notice of Appeal
2.2. with Supreme Court and RTCs

Refer to Sec.2.2. above under I.A. supra
Where the RTC imposed the penalty of

death, reclusion perpetua or life imprisonment,
the case shall be automatically brought to the
Court of Appeals for intermediate review before
such cases are elevated to the Supreme Court.
(A.M. No. 04-9-05-SC, Sept. 14, 2004, People
vs. Mateo, G.R. Nos. 147678-87, July 7, 2004)
2. Petition for Review on Certiorari
2.1. Appeals from the Court of Appeals
2.2. Appeals from the Sandiganbayan on
pure question of law, except cases where the
penalty imposed is reclusion perpetua, life
imprisonment or death
2.3. Appeals from the Court of Tax Appeals
En Banc
2.4. Appeals from Regional Trial Courts
exercising original jurisdiction in the following
cases:
2.4.1. If no question of fact is involved
and the case involves:
a. Constitutionality or validity of treaty,
international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance or regulation
b. Legality of tax, impost, assessments
or toll, or penalty in relation thereto
c. Jurisdiction of lower court
2.4.2. All cases in which only errors or
questions of law are involved.
3. Special Civil Action on Certiorari filed
within 30 days against the following:
3.1. Commissions on Elections
3.2. Commission on Audit
B. Appellate
1. Notice of Appeal or Record on Appeal
1.1. Appeals from RTCs, except those
appeallable to the Supreme Court (see I.B.1
(1.2.)
1.2. Appeals from RTCs on constitutional,
tax, jurisdictional questions involving questions
of fact which should be appealed first to the
Court of Appeals.
1.3. Appeals from decisions and final orders
of the Family Courts
2. Petition for Review
2.1. Appeals from the Civil Service
Commission
2.2. Appeals from RTCs in cases appealed
from MeTCs, MTCs, MCTCs, MTCCs which are
not a matter of right
2.3. Appeals from quasi-judicial agencies
2.4. Appeals
from
the
National
Commission on Indigenous Peoples
2.5. Appeals from the Office of the
Ombudsman in administrative disciplinary
cases
2.6. Appeals from the RTC in cases falling
under the Interim Rules of Corporate
Rehabilitation and the Interim Rules of
Procedure
Governing
Intra-Corporate
Controversies under Republic Act No. 8799
III. SANDIGANBAYAN
A. Original
1. Exclusive
1.1. Violation of R.A. 3019 (Anti-Graft), R.A.
1379 and Chapter II, Sec. 2, Title VII of the
Revised Penal Code; and other offenses
R E M E D I A L
L A W
Page 8 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
committed by public officials and employees in

relation to their office, and private individuals
charged as co-principals, accomplices and
accessories including those employed in
GOCCs, where one or more of the accused are
officials occupying the following positions in the
government, whether in a permanent, acting or
interim capacity, at the time of the commission
of the offense:
a. Officials of the Executive branch
classified as Grade 27 or higher
b. Members of Congress and officials
thereof classified as Grade 27 and
higher
c. Members of Judiciary
d. Members
of
Constitutional
Commissions
e. All other national and local officials
whose positions are classified as Grade
27 or higher
In cases where none of the accused are
occupying the above positions, the original
jurisdiction shall be vested in the proper RTC or
MeTC, MTC, etc., as the case may be, pursuant
to their respective jurisdictions.
L A W
election of board of directors appointed by the

PCGG is with the Sandiganbayan.
IV. COURT OF TAX APPEALS
A. Original
1. Exclusive
1.1. Criminal offenses in violations of the
NIRC, Customs Code and other laws
administered by the BIR or BOC where the
principal amount of taxes and fees, exclusive of
charges and penalties, claimed is One Million
Pesos (P1M) and above.
1.2. Tax collection cases involving final and
executory assessments for taxes, charges and
penalties where principal amount of taxes and
fees, exclusive of charges and penalties, claimed
is One Million Pesos (P1M) and above.
Note! When the principal amount claimed is
less than One Million Pesos (P1M), the case
shall be tried by the RTC or MTC based on the
jurisdictional amount.
B. Appellate
1. Notice of Appeal
In cases where there is no specific allegation

of facts showing that the offense committed in
relation to the public office of the accused, the
original jurisdiction shall also be vested in the
proper regional trial court or MeTC, MTC, etc.,
as the case may be.
1.2. Civil and criminal cases filed pursuant
with Executive Order Nos. 1, 2, 14 and 14-A
(PCGG cases).
2. Concurrent with Supreme Court
Petitions
for
certiorari,
prohibition,
mandamus, habeas corpus, injunction and
other ancillary writs in aid of its appellate
jurisdiction including quo warranto arising in
cases falling under E.O.s 1, 2, 14, 14-A.
B. Appellate
Decisions and final orders of RTCs in the
exercise of their original or appellate
jurisdiction in the manner provided by Rule 122
of the Rules of Court.
Note! In case of a corporation sequestered by
the PCGG, jurisdiction with regard to the
In tax collection cases, judgments,

resolutions or orders of the Regional Trial Court
originally decided by them.
2. Petition for Review
2.1. Civil
2.1.1. Decisions or inaction of the
Commissioner of Internal Revenue
2.1.2. Decisions of the Commissioner
of Customs
2.1.3. Decisions of the Secretary of
Finance on customs cases elevated to him
automatically
from
decisions
of
the
Commissioner of Customs
Trade and Industry regarding duties upon nonagricultural products
Agriculture regarding duties upon agricultural
products
2.1.6. Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction
2.1.7. In
tax
collection
cases,
judgments, resolutions or orders of the
Regional Trial Courts in the exercise of their
R E M E D I A L
L A W
Page 9 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
appellate jurisdiction originally decided by the

MTC, etc.
1.2. Criminal
1.2.1. Violations of the NIRC, Tariff and
Customs Code and other laws administered by
the BIR and BOC originally decided by the
regular courts where the principal amount of
taxes and fees is less than One Million Pesos
(P1M) or NO specified amount claimed.
Note: The cases enumerated above should be
raffled to the CTA Divisions. A party adversely
affected may file a petition for review with the
CTA En Banc whose decision or resolution may
be appealed to the Supreme Court under Rule
45.
L A W
the amount thereof shall be considered in

determining the jurisdiction of the court.
1.1.9. Additional original jurisdiction
transferred under Sec. 5.2. of the Securities
Regulations Code:
a. Devices or schemes employed by, or
any act of, the board of directors, business
associates, its officers or partners, amounting to
fraud and misrepresentation
b. Controversies arising out of intracorporate, partnership or association relations
c. Controversies in the election or
appointment of directors, trustees, officers or
managers of corporations, partnerships or
associations
d. Derivative suits
e. Inspection of corporate books
1.1.10. Tax collection cases NOT falling
under the exclusive original jurisdiction of the
Court of Tax Appeals where principal amount
claimed is less than One Million Pesos (P1M).
V. REGIONAL TRIAL COURTS

A. Original
1. Civil
1.2. Concurrent
1.1. Exclusive
1.1.1. Subject of action not capable of
pecuniary estimation
1.1.2. Actions involving title or
possession of real property or interest therein
where the assessed value exceeds P20,000 or in
Metro Manila, P50,000
1.1.3. Actions in admiralty and maritime
jurisdiction where demand or claim exceeds
P300,000, or in Metro Manila, P400,000
1.1.4. Matters of probate, testate or
intestate, where gross value of estate exceeds
P300,000, or in Metro Manila, P400,000
1.1.5. In all actions involving marriage
and marital relations (now under the
jurisdiction of the family Courts)
1.1.6. Cases not within the exclusive
jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial
function
1.1.7. Actions and special proceedings
falling within the exclusive original jurisdiction
of the Juvenile and Domestic Relations Courts
(now the Family Courts) and the Court of
Agrarian Relations
1.1.8. Other cases where demand,
exclusive of interest, damages, attorneys fees,
litigation expenses and costs, or value of
property in controversy exceeds P300,000, or
in Metro Manila, P400,000. However, if the
claim for damages is the main cause of action,
1.2.1. with Supreme Court

Actions affecting ambassadors and other
public ministers and consuls.
1.2.2. with Supreme Court and CA
a. Certiorari,
prohibition
and
mandamus against lower courts and bodies.
b. Habeas corpus and quo warranto
1.2.3. with the Insurance Commission
*Claims not exceeding P100,000.
*Applicable if the subject of the action is not
capable of pecuniary estimation; otherwise,
jurisdiction is concurrent with MeTCs, MTCs,
etc.
2. Criminal
2.1. Exclusive
Criminal cases not within the exclusive
jurisdiction of any court, tribunal or body which
includes cases:
a. where penalty exceeds six (6) years.
b. with regard to offenses NOT
cognizable by the Sandiganbayan where none of
the
accused
are
occupying
positions
R E M E D I A L
L A W
Page 10 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
corresponding to salary grade 27 and higher, or

by the Court of Tax Appeals with regard to
claim of taxes and fees not amounting to one
million pesos.
c. where the only penalty is fine, the
amount of fine exceeds P4,000.
d. violations of the NIRC, Tariff and
the BIR and BOC where the principal amount of
taxes and fess claimed is less than One Million
Pesos (P1M) or where there is NO specified
amount
Note: The Family Courts have exclusive
original jurisdiction over criminal cases where
one or more of the accused is below 18 years of
age but not less than 9 years of age, or when one
or more of the victims is a minor at the time of
the commission of the offense. (Sec. 5a, R.A.
8369)
B. Appellate
All cases decided by lower courts in their
respective territorial jurisdictions.
Action Incapable of Pecuniary
Estimation
Whether it is primarily for a sum of
money. If yes, the action is capable of
Where the sum of money is merely
incidental or as a consequence
If there is something more to be done,
the award of money is merely incidental
Where sum of money is an alternative
remedy/prayer, the action is capable of
pecuniary
estimation
(specific
performance OR damages)
Specific performance AND damages, the
sum of money is merely incidental,
therefore the action is incapable of
Where the action is for damages,
jurisdiction is determined by the
principal cause of action. Where the
action is primarily for actual damages,
moral and exemplary damages, the
moral and exemplary damages will not
be considered in the determination of
jurisdiction. (Huguete vs. Embudo,
GRN 149554, July 1, 2003, 405 SCRA
168)
VI. FAMILY COURTS
A. Exclusive and Original
L A W
1. Criminal cases where one or more of the

accused is below 18 years of age but not less
than 9 years of age, or when one or more of the
victims is a minor at the time of the commission
of the offense: Provided, That if the minor is
found guilty, the court shall promulgate
sentence and ascertain any civil liability which
the accused may have incurred. The sentence,
however, shall be suspended without need of
application pursuant to P.D. 903 otherwise
known as the Child and Youth Welfare Code.
2. Petitions for guardianship, custody of
children, habeas corpus in relation to the latter
and hospitalization of insane minors.
3. Petitions for adoption of children and the
revocation thereof.
4. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property relations
of husband and wife or those living together
under different status and agreements; and
petitions for dissolution of conjugal partnership
of gains.
5.
Petitions
acknowledgment.
for
support
and/or
6. Summary judicial proceedings brought under

the provisions of E.O. 209, otherwise known as
the Family Code of the Philippines.
7. Petitions 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 pf parental authority
and other cases cognizable under P.D. 603, E.O.
56 and other related laws.
8. Petitions for the constitution of the family
home.
9. Cases against minors cognizable under the
Dangerous Drugs Act.
10. Violations of R.A. 7160, otherwise known as
the Special Protection of Children Against
Child Abuse, Exploitation and Discrimination
Act.
11. Cases of domestic violence against women
and children.
VII. MUNICIPAL TRIAL COURTS, etc.
R E M E D I A L
L A W
Page 11 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
A. Original
1. Civil
1.1. Exclusive
1.1.1.
Actions
involving
personal
property valued at not more than P300,000, or
in Metro Manila, P400,000.
1.1.2. Actions demanding sums of money
not exceeding P300,000, or in Metro Manila,
P400,000; in both cases, exclusive of interest,
damages, attorneys fees, litigation expenses
and costs, the amount of which must be
specifically alleged, but the filing fees thereon
shall be paid. These include admiralty and
maritime cases.
1.1.3. Actions involving title or
possession of real property where the assessed
value does not exceed P20,000, or in Metro
Manila, P50,000.
1.1.4. Provisional remedies in principal
actions within their jurisdiction, and in proper
cases such as preliminary attachment,
preliminary injunction, appointment of receiver
and delivery of personal property.
1.1.5. Forcible entry and unlawful
detainer, with jurisdiction to resolve ownership
to determine issue of possession.
1.1.6. Probate proceedings, testate or
intestate, where gross value of estate does not
exceed P300,000, or in Metro Manila,
P400,000.
1.1.7. Inclusion and exclusion of voters.
1.1.8. Tax collection cases NOT falling
under the exclusive original jurisdiction of the
Court of Tax Appeals and RTC where principal
amount claimed is less than One Million Pesos
(P1M).
L A W
2.1.1. All violations of city or municipal

ordinances committed within their respective
territorial jurisdictions.
2.1.2. All offenses punishable with
imprisonment of not more than 6 years
irrespective of the fine and regardless of other
imposable accessory or other penalties and the
civil liability arising therefrom; Provided,
however, that in offenses involving damage to
property through criminal negligence, the
imposable fine does not exceed P10,000.
2.1.3. All offenses committed NOT
falling within the exclusive original jurisdiction
of the Sandiganbayan where none of the
accused are occupying positions corresponding
to salary grade 27 and higher, or of the Court of
Tax Appeals with regard to claim of taxes and
fees amounting to one million pesos.
2.1.4. In cases where the only penalty
provided by law is a fine not exceeding P4,000.
2.1.5. Violations of the NIRC, Tariff and
the BIR and BOC where the principal amount of
taxes and fess claimed is less than One Million
Pesos (P1M) and not falling within the exclusive
jurisdiction of the RTC.
2.2. Concurrent with Prosecutors
Except for MetCs in the National Capital
Region, conduct preliminary investigation of
offenses where the penalty prescribed by law is
at least four (4) years, two (2) months and one
(1) day without regard to fine. Preliminary
investigation of crimes within the jurisdiction of
the Sandiganbayan is conducted by the Office of
the Special Prosecutor under the Ombudsman.
3. Summary Procedure
1.2. Concurrent with RTCs None
3.1. Civil
1.3. Delegated
Cadastral and land registration cases
assigned by the Supreme Court where there is
no controversy or opposition and in contested
lots valued at not more than P100,000.
3.1.1. Forcible entry and unlawful

detainer, irrespective of the amount of damages
or unpaid rentals sought to be recovered; but
attorneys fees shall not exceed P20,000.
It can issue writ of preliminary
mandatory action in case of unlawful detainer.
1.4. Special
Petition for habeas corpus in the
absence of all Regional Trial Court Judges.
2. Criminal
3.1.2. All other cases, except probate

proceedings, where total claim does not exceed
P10,000.
3.2. Criminal
2.1. Exclusive
R E M E D I A L
L A W
Page 12 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
3.2.1. Traffic law and rules violations

3.2.2. Rental law violations
3.2.3. Violations of municipal or city
ordinances
3.2.4. Violations of B.P. 22 (Bouncing
Checks Law)
3.2.5. All other cases where penalty does
not exceed 6 months and/or fine of P1,000, or
both, irrespective of other imposable penalties,
accessory or civil liability arising therefrom;
Provided, however, that in offenses involving
damage to property through criminal
negligence, the imposable fine does not exceed
P10,000.
When
Defense
of
Ejectment Case Proper
Ownership
in
The defense of ownership contemplated

under the Rule refers to a situation where the
defendants either claim ownership of the
subject property or attributes of said ownership
to another person other than the plaintiff. It
does not apply where the defendant merely
questions the validity of the title of the plaintiff.
(Lacap vs. Lee, GRN 142131, Dec. 11, 2002, 394
SCRA 1)
L A W
How to Determine Jurisdiction

Foreclosure of Property
in
1. In foreclosure of property where the value of

the property is involved, the value of the
property itself determines the jurisdiction.
2. In foreclosure of property where the value of
the property is NOT involved (specific
value), the value of alternative prayer for
damages determines the jurisdiction.
Principle of Exercise of Equity
Jurisdiction
This is a situation where the court is called
upon to decide a particular situation and release
the parties from their correlative obligations but
if it would result in adverse consequences to the
parties and the public, the court would go
beyond its powers to avoid negative
consequences in the release of the parties.
CIVIL PROCEDURE
RULE 1
General Considerations
Damages in Ejectment Case
Sec. 3. Cases governed.
In ejectment cases, the ONLY damages that

can be recovered are the fair rental value or
the reasonable compensation for the use
and occupation of the property. Considering
that the only issue raised in ejectment is that of
rightful possession, damages which could be
recovered are those which the plaintiff could
have sustained as a mere possessor, or those
caused by the loss of the use and occupation of
the property, and not the damages which he
may have suffered but which have no direct
relation to his loss of material possession. (C&S
Fishfarm Corp. vs. CA, GRN 122720, Dec. 16,
2002, 394 SCRA 82)
Civil action
One by which a party sues another for
the enforcement or protection of a right,
or the prevention or redress of a wrong.
May either be ordinary or special.
Based on a cause of action.
May RA 7691, the act which expanded the

jurisdiction of the municipal trial courts,
be given retroactive application?
No. Jurisdiction being a matter of
substantive law, the established rule is that the
statute in force at the time of the
commencement of the action determines the
jurisdiction of the court. (Yu Oh vs. CA. GRN
125297, June 6, 2003, 403 SCRA 300)
Criminal action
One by which the State prosecutes a
person for an act or omission punishable
by law.
Based on a cause of accusation.
Special proceeding a remedy by which a
party seeks to establish a status, a right, or a
particular fact.
Ordinary Action
A formal demand of
ones right in a court
of justice in the
manner
prescribed
by the court or by the
law
R E M E D I A L
Special
Proceeding
An application or
petition to establish
the status or right of
a
party
or
a
particular fact.
L A W
Page 13 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Ordinary Action
The
method
of
applying
legal
remedies according
to
definite
established rules.
A I D
I N
R E M E D I A L
Special
Proceeding
The
remedy
is
granted
generally
upon an application
or motion.
Falls
within
the Comes within a court
jurisdiction of a court of
limited
of
general jurisdiction.
jurisdiction.
It is required that no Such requirement of
suit shall be filed or the law does not
maintained between apply.
members of the same
family
unless
it
should appear that
earnest
efforts
towards
a
compromise has been
made.
L A W
The Manchester Rule

1. All complaints, petitions, answers and other
similar pleadings should specify the amount of
damages being prayed for not only in the body
of the pleading but also in the prayer, and said
damages shall be considered in the assessment
of the filing fees.
2. The court acquires jurisdiction over any case
only upon the payment of the prescribed docket
fee.
3. An amendment of the complaint or similar
pleading will not thereby vest jurisdiction in
the court, much less the payment of the
docket fee based on the amount sought in
the amended pleading. (Manchester
Development Corp. vs. Court of Appeals,
GRN L-75919, May 7, 1987; 149 SCRA 562)
In deficiency on paying docket fees, the
court may allow payment of docket
fees.
Note! In determining the jurisdictional
amount, the amount of the demand must be
considered EXCLUSIVE of interest, damages of
whatever kind, attorneys fees, litigation
expenses, and costs.
Sec. 4. In what cases not applicable.

E lection cases
L and registration
C adastral proceedings
N aturalization
I Insolvency proceedings
O ther cases not herein provided for
EXCEPT by analogy or in a suppletory
character and whenever practicable and
convenient.
Sec. 5. Commencement of action.
A court acquires jurisdiction over the
subject matter or nature of the action by:
1. Filing of the original complaint in court
a. personally, or
b. by mail (the date of mailing is considered
as the date of filing)
2. Payment of the docket fee at the time of
filing or mailing or within a reasonable time but
in no case beyond the applicable prescriptive or
reglementary period.
However, interest, damages of whatever

kind, attorneys fees, litigation expenses, and
costs shall be INCLUDED in the determination
of the filing fees (Sec. 33, RA 7691 amending BP
129).
The same rule applies to permissive
counterclaim, third-party claims and similar
pleadings.
In Tacay vs. RTC of Tagum (GRN
88075-77 December 20, 1989), the SC held that
the rule on the payment of the prescribed
docket fees applies only where jurisdiction
depends on the amount prayed for or value
prayed for. If jurisdiction is not dependent upon
the value of the demand, the court acquires
jurisdiction even without the payment of the
docket fee. Court loses jurisdiction only over the
claims for damages.
Manchester
Insurance
R E M E D I A L
Rule
Relaxed
in
L A W
Page 14 of 212
Sun
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Where the filing of the initiatory pleading is

not accompanied by payment of the docket fee,
the court may allow payment of the fee within a
reasonable time but in no case beyond the
applicable prescriptive or reglementary period.
(Sun Insurance Office Ltd. vs. Asuncion, 170
SCRA 274, 1989)
New Docket Fee to be Paid for the Filing
of the Same Case that was Dismissed for
Improper Venue
Where the same case was filed after it was
dismissed for improper venue, another filing fee
must be paid within the prescriptive period as a
condition precedent for further hearing the
case. (Suson vs. CA, GRN 126749, Aug. 21,
1997, 278 SCRA 284)
RULE 2
CAUSE OF ACTION
L A W
violated belonging to one person. All

such rights must be alleged in a single
complaint; otherwise, they are barred
forever
It is prohibited
Reasons for the Rule
1. To prevent repeated litigation between the
same parties in regard to the same subject of
controversy.
2. To protect the defendant from unnecessary
vexation.
3. To avoid the costs and expenses incident to
numerous suits.
Effect: The other case may be dismissed either
on the ground of litis pendentia or res judicata,
or same grounds may be alleged as affirmative
defenses in the Answer.
Test of Singleness of Action
Cause of Action
the act or omission by which a party violates
a right of another
the delict or wrong by which the right of the
plaintiff is violated by the defendant
Elements of Cause of Action:
It lies in the singleness of the delict or

wrong violating the rights of one person. A
single delict or wrong may, however, consists of
a single act or series of acts of a single
transaction or a series of transactions.
Remedies Against Splitting a
Cause of Action
a. The existence of a legal right in plaintiff.

b. A correlative duty of defendant to respect
ones right.
c. An act or omission of the defendant in
violation of plaintiffs right.
Right of Action the right to commence and
prosecute an action to obtain the relief sought.
Elements of Right of Action:
a. The existence of a cause of action.
b. The performance of all conditions precedent
to the bringing of the action.
c. The right to bring and maintain the action
must be in the person instituting it.
1. Motion to dismiss on the ground of litis

pendentia
2. Motion to dismiss on the ground of res
judicata
Sec. 5. Joinder of causes of action.
This rule is permissive. It does not
constitute an obligatory rule, as there is no
positive provision of law or any rule of
jurisprudence which compels a party to join all
his causes of action and bring them at one and
the same time.
Conditions:
Par. (a): Compliance with the rules on joinder
of parties.
Splitting a single cause of action

The filing of separate complaints for
several reliefs for the same cause of
action
Where there is only one delict or wrong,
there is but a single cause of action
regardless of the number of rights
This may involve the same parties or

different parties. If the joinder involves
different parties, there must be a question of
fact or of law common to both parties joined,
R E M E D I A L
L A W
Page 15 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
arising out of the same transaction or series of

transactions.
Legal Capacity
The party is free from general disability
or must be in the full exercise of his civil
rights or, in case of juridical entities,
such as a corporation, that it must be
duly registered in accordance with law.
It must be alleged in the complaint,
otherwise, the party must be deemed to
be devoid of legal personality to bring an
action.
Par. (b): Shall not include any special civil

action because it may be governed by a different
rule, or by special rules, such as summary
procedure in ejectment cases.
Par. (c): If the causes of action have different
venues, they may be joined in any of the courts
of proper venue. A real action and a personal
action may be joined either in the RTC of the
place where the real property is located or
where the parties reside.
Par. (d): The Totality Rule
Where there are several claims or causes of
action between the same or different parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the claims in
all the causes of action, irrespective of whether
the causes of action arose out of the same or
different transactions.
L A W
Lack of Legal
Capacity to Sue
Refers to plaintiffs
general disability to
sue
A ground for a
motion to dismiss
based on the ground
of lack of legal
capacity to sue
Lack of Legal
Personality to Sue
Plaintiff is not the
real party in interest
A ground for a
motion to dismiss
because of plaintiffs
failure to state a
cause of action
Sec. 2. Parties in interest.

RULE 3
PARTIES TO CIVIL ACTIONS
Sec. 1. Who may be parties; plaintiff and
defendant.
Requisites: P C - I
a. He must be a natural or juridical
person or an entity authorized by law;
b. He must have legal capacity to sue;
c. He must be the real party in interest.
Plaintiff may refer to claiming party, the
counter- claimant, the cross- claimant, or the
third (fourth, etc.)-party plaintiff.
Defendant may refer to the original
defending party, the defendant in a
counterclaim, the cross- defendant, or the third
(fourth, etc.)-party defendant. (Sec. 1)
Note! A foreign corporation whether doing
business or not may be sued.
Estate of a Deceased Person May Not be

Named Plaintiff or Defendant
Real Party-in-Interest
The party who stands to be benefited or
injured by the judgment in the suit, or
the party entitled to the avails of the
suit.
A party with a present substantial
interest as distinguished from a mere
expectancy or future, contingent,
subordinate, or consequential interest.
Every action must be prosecuted or
defended in his name unless otherwise
authorized by law.
Effect of Failure to Name Real
Party-in-Interest
Rule! Every action must be prosecuted and
defended in the name of the real party-ininterest. If the suit is not brought in the
name of or against the real party-in-interest,
a motion to dismiss may be filed on the
ground that the complaint states no cause of
action. In case there is a judgment, it shall
be void.
Exception: A real litigant may be held bound
as a party even if not formally impleaded
provided he had his day in court. An
R E M E D I A L
L A W
Page 16 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
amendment can be had to include or

implead the real party in interest.
Real Party in
Locus Standi
Interest
applies to private refers to standing
litigations
involving
constitutional issues
suit is brought by the suit is generally not
party injured who is brought by the party
a party to a contract who
has
been
or any transaction
personally injured by
the operation of a law
or by official action
taken, but concerned
citizens, taxpayers or
voters who sue in the
public interest
Remedy When Real Party-in-Interest not
Impleaded
The pleadings must be amended or the
complaint may be deemed amended to include
the real party-in-interest.
Party Representative someone acting in a
fiduciary capacity, however; the beneficiary
shall be included in the title of the case and
shall be deemed to be the real party-in-interest.
Who may be Representatives
1. Trustee in an express trust
2. Father, mother, guardian or guardian ad
litem of the incompetent
3. Executor or administrator
4. Party authorized by the law or the Rules
5. Agent acting in his own name and for the
benefit of an undisclosed principal, EXCEPT
when the contract involve things belonging
to the principal
Note! where the agency is disclosed and the
principal appears to be the owner of the things
involved in the suit, the action should be
brought against both the principal and the
agent.
L A W
b. There is a question of law or fact

common to all the plaintiffs or
defendants;
c. Such
joinder
is
not
otherwise
proscribed by the provisions of the
rules on jurisdiction and venue.
Joinder of Causes
of Actions
The causes of action
to be joined are no
longer limited to
causes
of
action
arising out of the
same
contract,
transaction
or
relation,
or
for
demands of money of
the same nature and
character.
There is no need of a
common question of
fact or of law.
Joinder of Parties
It is required that the
cause of action arises
out of the same
contract, transaction
or relation.
There is a need of a
common question of
fact or of law.
Sec.
7.
Compulsory
indispensable parties.
joinder
of
Indispensable party
A party in interest without whom no final
determination can be had of an action.
One whose interest in the subject matter of
the suit and in the relief sought are so
inextricably intertwined with the other
parties that his legal presence as a party to
the proceeding is an absolute necessity
Effect of
Parties
Absence
of
Indispensable
a. The court has the duty to stop the trial and

order the inclusion of such party.
b. The action should be dismissed.
c. Renders all subsequent actuations of the
court null and void, for want of authority to
act, not only as to the absent parties but
even to those present.
Sec. 6. Permissive joinder of parties.

Sec. 8. Necessary party.
Requisites: S C P
Necessary party
a. A right to relief arising out of the same
transaction or series of transactions;
One who is not indispensable but who ought

to be joined as a party if complete relief is to
R E M E D I A L
L A W
Page 17 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
be accorded as to those already parties, or

for a complete determination or settlement
of the claim subject of the action.
Also called proper party, refers to one
whose presence is necessary to adjudicate
the whole controversy, but whose interests
are so far separable that final decree can be
made in his absence without affecting him.
authority to appear for the client automatically

ceases, EXCEPT:
Sec. 9. Non-joinder of necessary parties

to be pleaded.
Duties of Counsel if Claim is not

Extinguished
Effect of omission of a necessary party
1. To inform the Court promptly of his clients

death(within 30 days from death).
2. To give the name and address of the
deceaseds legal representative ( within the
same period)
a. If the omission is unmeritorious, the court

may order for his inclusion if jurisdiction
over his person may be obtained.
b. An unjustifiable failure to comply with such
order shall be deemed a waiver of the claim
against such party.
c. However, his non-inclusion does not
prevent the court from proceeding in the
action, and a judgment therein shall be
without prejudice to his rights.
a. when there is a contract for the lawyers

services up to final judgment;
b. when the lawyers fees are on a contingent
basis;
c. when the lawyers appearance is coupled
with interest.
Effect of Counsels Failure to Notify

Court
1. The case may continue.
2. It shall be a ground for disciplinary action.
Sec. 12. Class suit.

Opposing Party may Procure Executor or
Administrator
Requisites: S N I
a. Subject matter of controversy that is
of common or general interest to many
persons;
b. Persons are so numerous that it is
impracticable to join them all as parties;
c. Parties actually before the court are
sufficiently
numerous
and
representative so that all interests
concerned are fully protected.
1. When no legal representative is named by

the counsel, or
2. When named, the latter fails to appear
within the specified period.
Note! If the procedure under sec.16 is not
followed the procedures against the heirs will be
declared null and void.
Sec. 17. Death or separation of a party
who is a public officer.
Object of the suit

The object of the suit is to obtain relief for
or against numerous persons as a group or as
an integral entity, and not as separate, distinct
individuals whose rights or liabilities are
separate from and independent of those
affecting the others.
The action may be continued and

maintained by or against his successor if, within
30 days after the successor takes office or such
time as may be granted by the court:
Sec. 16. Death of party; duty of counsel.

Effect of Death of Party
The lawyer-client relationship is terminated
upon the death of the client. The lawyers
R E M E D I A L
if it is satisfactorily shown to the court

by any party that there is a substantial
need for continuing or maintaining it,
and
the successor adopts or continues or
threatens to adopt or continue the action
of his predecessor.
L A W
Page 18 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Sec. 20. Action on contractual money

claims.
Requisites:
a. The action must primarily be for recovery of
money, debt, or interest thereon, and not
where the money sought therein is merely
incidental thereto.
b. The claim, subject of the action, arose from
a contract, express or implied, entered into
by the decedent in his lifetime or the
liability for which had been assumed by or is
imputable to him.
L A W
Venue
The geographical
division in which the
action is brought to
trial.
Establishes the
relation between the
plaintiff and the
defendant.
May be waived
Procedural
May be changed by
written agreement of
the parties
Jurisdiction
Authority to hear and
determine a case.
Establishes the
relation between the
court and the subject
matter.
Conferred by law and
therefore, cannot be
waived
Substantive
Cannot be the subject
of an agreement of
the parties
If defendant dies before entry of final

judgment in the court where it was pending at
that time, the action shall not be dismissed but
shall be allowed to continue until entry of final
judgment thereon. When judgment is favorable
to plaintiff, it shall be enforced in the manner of
prosecuting claims against the deceaseds
estate.
1. One Property, One Locality the proper

court which has jurisdiction over the area
wherein the real property involved, or a portion
thereof, is situated.
Sec. 21. Indigent Party a person who does

not have sufficient property to maintain an
action.
2. Property At Boundary of Two

Localities file one case in either place at
the option of the plaintiff.
The Court, if satisfied, may authorize

litigation of action, claim or defense:
a. upon an ex parte application and
hearing; and
b execution of an affidavit that he and
his immediate family do not have
sufficient money or property
available for their food, shelter and
basic necessities.
3. Various Properties, Different

Provinces
If the indigent win, the legal fees (which he

did not pay) shall be a lien on any judgment
unless provided otherwise by the court.
Venue of Real Actions
a. If the properties are the object of the same

transaction, file it in the RTC in any of said
provinces, and the judgment therein can be
executed in the other provinces where the
rest of the real estate is situated.
b. If they are the subjects of distinct
transactions, separate actions should be
filed in each place unless properly joined.
Venue of Personal Actions
RULE 4
VENUE OF ACTIONS
1. Against a resident defendant where the

plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the
principal defendants resides, at the election of
the plaintiff.
Venue the place where the action is to be

commenced/ instituted and tried.
Dismissal of Action Not Discretionary
The court cannot motu proprio dismiss a
complaint on the ground of improper venue,
since improper venue may be waived for failure
to object to it.
2. Against a nonresident defendant and found

in the Philippines where he may be found.
When Stipulation of Venue Permissive or
Exclusive
R E M E D I A L
L A W
Page 19 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
1. Permissive: If the parties to a contract

merely agree on the venue of any case arising
therefrom, in addition to or aside from the legal
venue provided for by the Rules of Court or the
law.
Effect: The parties may choose to observe
the same or insist on the alternative venues in
the rules or law; not a ground for a motion to
dismiss.
2. Exclusive: If the stipulation contains
qualifying,
restrictive,
mandatory
or
exclusionary terms like exclusively, must, only,
solely, limited to, in no other place, in no other
court, particularly, nowhere else but/except, to
the exclusion of, or other terms indicative of a
clear and categorical intent to lay the venue at a
specific place.
Effect: There is a waiver of the general
provisions of the rules or the law on venue
proscribing the filing of suit in any other
competent court; a ground for motion to
dismiss.
Ejectment suit, always on MTC under
BP. 129
Sec. 3. Venue of Actions against nonresidents.
In actions in rem or quasi in rem against
non-residents not found in the Philippines, the
venue is:
the place where the plaintiff resides, if it
affects the personal status of the plaintiff, or
the place where the defendants property or
any portion thereof is situated or found.
Waiver of Improper or Misplaced Venue
a. Express waiver through written agreement
b. Implied waiver through failure to
seasonably object to improper venue in a
motion to dismiss or in the answer.
L A W
determination thereof without regard to

technical rules. Such simplified procedure may
provide that affidavits and counter-affidavits
may be admitted in lieu of oral testimony and
that the periods for filing pleadings shall not be
extendible.
RULE ON SUMMARY PROCEDURE
Pleadings Allowed in Summary
Procedure
1. Complaint
2. Compulsory counterclaim and cross-claims
pleaded in the answer
3. Answer
Prohibited Pleadings and Motions
1. Motion to dismiss the complaint EXCEPT
on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the
requirement of prior referral to Lupon
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavits or any other papers
6. Memoranda
7. Petition for certiorari, mandamus or
prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaint
12. Intervention
Summary Procedure
A. Some Notes
RULE 5
UNIFORM PROCEDURE IN TRIAL
COURTS
Section 36 of the Judiciary Reorganization
Act of 1980 mandated the Supreme Court to
adopt special rules of procedure regarding cases
requiring summary disposition in order to
achieve an expeditious and inexpensive
R E M E D I A L
A motion to dismiss may be treated as

an answer.
The defense of lack of jurisdiction may
be raised in a motion to dismiss as an
exception to the rule on prohibited
pleadings.
Unless there is a showing of substantial
prejudice caused to a party, the trial
courts inadvertent failure to calendar
the case for a pre-trial or a preliminary
conference
cannot
render
the
proceedings illegal or void ab initio.
L A W
Page 20 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Where defendant did file an answer to

the complaint, the trial court may not
declare him as in default because a
motion to declare the defendant in
default is a prohibited pleading.
B. Civil Cases; Non-Appearance in
Preliminary Conference; Effects
1. As to plaintiff
dismissal of complaint
defendant, entitled to judgment on his
counterclaim
L A W
4. Compulsory Counterclaim one which,

being cognizable by the regular courts of
justice, arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing partys claim
and does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction.
Compulsory
counterclaim
Arises out from
same transaction
No docket fees
2. As to sole defendant
plaintiff entitled to judgment, except
where one of two or more defendants
appears
C. Criminal Cases; Immediate Dismissal
The complaint or information shall be
accompanied by the affidavits of the
complainant and of his witnesses in such
number of copies as there are accused PLUS
two (2) copies for the courts file. If this
requirement is not complied with within five (5)
days from date of filing, the case may be
DISMISSED.
D. Arrest Under Rule on Summary
Procedure
Rule: The court shall not order the arrest of the
accused.
Exception: When accused failed to appear
whenever required.
RULE 6
KINDS OF PLEADINGS
Pleadings written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate
judgment.
Kinds:
1. Complaint a pleading alleging the
plaintiffs cause/s of action.
2. Answer a pleading in which a defending
party sets forth his defenses
3. Counterclaim any claim which a
defending party may have against an
opposing party
Does not need

certificate of nonforum shopping
Cannot stand alone
Permissive
counterclaim
Does not arise out from
same transaction
Needs payment of docket
fees
Needs certificate of nonforum shopping
Can stand alone; a case
itself
5. Cross-claim any claim by one party

against a co-party arising out of the
transaction or occurrence that is the subject
matter either of the original action or of a
counterclaim therein. It may include a claim
that the party against whom it is asserted is
or may be liable to the cross-claimant for all
or part of a claim asserted in the action
against the cross-claimant
6. Counter-counterclaims and countercross-claims
7. Reply a pleading to deny, or allege facts
in denial or avoidance of new matters
alleged by way of defense in the answer and
thereby join or make issue as to such new
matters.
If a party does not file such reply, all the
new matters alleged in the answer are
deemed controverted.
8. Third, (fourth, etc.)-party complaint
a claim that a defending party may, with
leave of court, file against a person not a
party to the action, for contribution,
indemnity, subrogation or any other relief,
in respect of his opponents claim
9. Answer to third, (fourth, etc.)-party
complaint one which contains a third,
(fourth, etc.)-party defendants defenses,
counterclaims or cross-claims.
COUNTERCLAIM
May a Plaintiff be declared in Default
for His Failure to File a Reply on the
R E M E D I A L
L A W
Page 21 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Compulsory
Defendant?
Counterclaim
A I D
of
I N
R E M E D I A L
the
No. A compulsory counterclaim for damages

and attorneys fees arising from the filing of the
complaint raises issues which are inseparable
from those of the complaint and does not
require an answer.
Is
a
Motion
to
Dismiss
with
Counterclaim Sanctioned by the Rules of
Court? (1992 Bar)
No, because a counterclaim must be
contained in an Answer and NOT in a motion to
dismiss. (A motion to dismiss is not a
responsive pleading as it does not meet the
issues raised in the complaint).
What defendant should do is to plead the
ground of his motion to dismiss (except
improper venue) as an affirmative defense in
his Answer, together with his counterclaim and
ask for a preliminary hearing on his affirmative
defense as if a motion to dismiss had been filed.
(Tan vs. Kaka Finance Corp., GRN 146595,
June 20, 2003, 404 SCRA 518)
L A W
Before the MTC, the MTC must have

jurisdiction also over the third party claim or
the amount thereof.
RULE 7
PARTS OF A PLEADING
Effect of Failure to Sign or Signing with
Intent to Defeat Purpose of Rules
1. Strike out pleading as sham and false.
2. Action proceeds as if no pleading has been
served; and
3. Attorney may be subjected to disciplinary
action.
Effect of Lack of Verification in a
Pleading
Generally, lack of verification is merely a
formal defect that is neither jurisdictional nor
fatal. Court may order the correction of the
pleading or act on the unverified pleading if the
attending circumstances are such that strict
compliance with the rule may be dispensed with
in order to serve the ends of justice. (Pfizer, Inc.
vs. Galan, 358 SCRA 240)
CROSS-CLAIM
A cross-claim may only be interposed if the
claimant would suffer prejudice from plaintiffs
complaint. Thus, in an action where the plaintiff
dismissed his complaint against a crossclaimant because of an agreement between
them that whatever the cross-claimant may
recover from his co-defendant will be given to
the plaintiff, the SC held that by the dismissal of
the complaint, the cross-claim should also be
dismissed. The cross-claim is proper only if the
cross-claimant would suffer prejudice from
plaintiffs complaint.
Effect of False Certification or Noncompliance of the Requirements

1. Constitutes indirect contempt of court.
2. Administrative and criminal actions may be
filed.
Effects of Willful and Deliberate Forum
Shopping
1. Summary dismissal with prejudice.
2. Constitutes direct contempt.
3. Cause for administrative sanctions.
RULE 8
MANNER OF MAKING ALLEGATIONS
IN PLEADINGS
THIRD PARTY COMPLAINT

Test: Where the claim of the defendant arises
under the same transaction subject matter of
the principal action, and the third party
defendant can be made liable to the third party
plaintiff under the same action.
Rule: It is only ancillary to the principal
action and does not require compliance with the
law on jurisdiction and rule on venue.
Ultimate facts the important and

substantial facts which either directly form the
basis of the plaintiffs primary right and duty or
directly make up the wrongful acts or omissions
of the defendant.
Evidentiary facts those which are necessary
to prove the ultimate factor which furnish
evidence of the existence of some other facts.
R E M E D I A L
L A W
Page 22 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Secs. 7, 8. Action or defense based on

document;
how
to
contest
such
documents.
Actionable document the written
instrument or upon which the action or defense
is based.
L A W
2. When compliance with an order for an

inspection of the original instrument is
refused.
3. When document or instrument is not the
basis of action or defense in which case a
simple specific denial would be sufficient.
Section 10. Specific denial.
Requisites:
Different Modes of Specific Denial
a. The substance of such instrument or

document shall be set forth in the pleading;
and
b. The original or a copy thereof shall be
attached to the pleading as an exhibit, which
shall be deemed to be a part of the pleading;
or
c. Said copy may with like effect be set forth in
the pleading.
a. Defendant must specify each material

allegations of fact the truth of which he does
not admit.
b. Denial of only a part of an averment
specifying so much of it as is true and
material and deny only the remainder.
c. Denial for lack of knowledge or information
sufficient to form a belief as to the truth of a
material averment made in the complaint.
How to Deny Genuineness and Due

Execution of Actionable Document
Negative Pregnant
1. The defendant must declare under oath that

he did not sign the document or that it is
otherwise false or fabricated; and
2. The denial must be specific.
Due Execution
A form of denial which at the same time

involves
an
affirmative
implication
favorable to the opposing party.
It is in effect, an admission of the averment
to which it is directed.
It is said to be a denial pregnant with an
admission of the substantial facts in the
pleading responded to.
1. That the party whose signature it bears

admitted that he voluntarily signed it; or
2. That it was signed by another for him with
his authority.
RULE 9
EFFECT OF FAILURE TO PLEAD
Genuineness
Sec. 1. Defenses and objections not

pleaded.
1. The party whose signature it bears admit at

the time it was signed it was in words and in
figures as set forth; and
2. Formalities required by law are waived by
him.
Rule: Defenses and objections not pleaded

either in a motion to dismiss or in the
answer are deemed waived.
Effect of Failure to Deny Under Oath

1. The genuineness and due execution is
deemed admitted.
2. Where the cause of action is based on an
affidavit and Memorandum of Quitclaim, a
judgment on the pleadings is proper.
Exceptions: HOWEVER, the court shall

dismiss the claim when it appears from the
pleadings or the evidence on record that:
a. the court has no jurisdiction over the
subject matter;
b. there is another action pending between
the same parties for the same cause;
c. the action is barred by a prior judgment
or by statute of limitations.
When Rule not Applicable

1. When the adverse party does not appear to
be a party to the instrument.
The following are not deemed admitted:

1. Immaterial allegations
2. Amount of unliquidated damages
3. Conclusion of law
R E M E D I A L
L A W
Page 23 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
4. Grounds for legal separation or annulment

of marriage
Based on F-A-M-E,
With a meritorious defense
Sec. 3. Default; declaration of.

Rule: If the defending party fails to answer
within the time allowed therefor, the court
shall, upon motion of the claiming party
with notice to the defending party, and
proof of such failure, declare the defending
party on default.
Dual Stages of Default
1. Declaration of Order of Default When
defendant fails to answer within the time
specified in the rules, the court shall, upon
motion of plaintiff and proof of such failure,
declare the defendant in default.
2. Rendition of Judgment by Default
Thereafter on the basis of the allegations of the
complaint or after receiving plaintiffs evidence,
the court shall render judgment granting him
such relief as the complaint and the facts
proven may warrant.
In case motion is denied:

Await judgment on the merits and
appeal the decision
If there is improper declaration of
default:
File a petition for writ of certiorari
under Rule 65.
In appropriate cases:
File a motion for new trial
Petition for relief from judgment
Extent of Relief shall not exceed the
amount or be different in kind from that prayed
for, nor award unliquidated damages
Where No Defaults Allowed (ADLS)
1.
2.
3.
4.
Elements of Valid Declaration of Default

a. The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons or
voluntary appearance;
b. The defendant failed to file his answer
within the time allowed therefor;
c. There must be a motion to declare the
defendant in default with notice to the
latter; and
d. Proof that summons have been properly
served upon defendant and that the latter
failed to answer within the proper period.;
L A W
Annulment of marriage
Declaration of nullity of marriage
Legal separation
Special
civil
actions
of
certiorari,
prohibition
and
mandamus,
where
COMMENT instead of an answer is required
to be filed.
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
Pleadings are amended by:

1. Adding or striking out an allegation or the
name of any party; or
2. By correcting a mistake in the name of a
party or a mistake or inadequate allegation
or description in any other respect.
Situations that May Arise when
Complaint is Amended
Effect of Order of Default

1. A party in default shall be entitled to notice
of subsequent proceedings but not to take
part in the trial.
2. If default is partial in case of several
defendants, the court shall try the case
against all upon the answers thus filed and
render judgment upon the evidence
presented.
1. If the complaint merely corrects or modifies

the original complaint, then the action is
deemed commenced upon the filing of the
original complaint;
2. If the amended complaint alleges a new
cause of action, then that cause of action is
deemed commenced upon the filing of the
amended complaint.
Remedy: File
KINDS OF AMENDMENTS
Motion to Set Aside Order of Default,
Motion must be under Oath,
Sec. 2. Amendments as a matter of right.
R E M E D I A L
L A W
Page 24 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
It is made:
a. At any time before a responsive pleading
is served.
b. In the case of a Reply, at any time within
10 days after it is served.
Note! A motion to dismiss is not a responsive
pleading, hence, amendment of the complaint is
a matter of right.
LIBERALITY if the presentation of the merits of

the action and ends of SUBSTANTIAL JUSTICE
will be subserved thereby.
Sec. 6. Supplemental Pleadings those
which aver facts occurring after the filing of the
original pleadings and which are material to the
mature claims and/or defenses therein alleged.
Sec. 3. Amendments by leave of court.

Substantial amendments may be made upon
leave of court in the following instances:
As to
subject
matter
a. When cause of action, defense or theory

of the case is changed.
b. Amendment is intended to confer
jurisdiction to the court.
c. Amendment to cure a premature or nonexisting cause of action.
As to
right
Sec. 4. Formal amendments.

As to
form
Formal defects that may be amended

a. Designation of the parties
b. Clearly clerical or typographical errors
Such defect may be summarily corrected by
the court at any stage of the action, at its
initiative or on motion, provided no prejudice is
caused thereby to the adverse party.
As to
effect
Sec. 5. Amendment to conform to or

authorize presentation of evidence.
a. Amendments to conform to evidence
When issues not raised by the pleadings are
tried with express 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, or even
after judgment.
b. Amendments to authorize
presentation of evidence
If evidence is objected 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
L A W
Amended
pleading
Refer to the
facts already
existing at the
time of filing
original
pleading
Can be a
matter of right
as when made
once before
responsive
pleading
File a new copy
of the entire
pleading
incorporating
the
amendments
and indicated
by appropriate
marks
The original is
superseded by
the amended
pleading
Supplemental
pleading
Refer to facts that
occurred since the
date of the
pleading sought to
be supplemented
Always by leave of
court
No need to file a
new copy of the
entire pleading, it
being an entirely
new pleading
The original
pleading stands.
Rules with Regard to the Issuance of

Summons in Case of Amendment
1. If the defendant had already an appearance
in court, there is no need for new summons
but mere service of amended pleading.
2. If there is no appearance yet, a new
summons should be issued.
A pleading does not state a cause of
action:
1. When the obligation is not yet due; or
2. When the obligation is already due but the
complaint did not state that it is already due
R E M E D I A L
L A W
Page 25 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
In the first case above, a new complaint

should be filed.
In the second case,
amendment is proper.
may be filed in a separate or in an amended

pleading and becomes part of the pleading
for which it is intended
Section 8. Effect of amended pleadings.
Note! A motion for a bill of particulars, not a

motion to dismiss, is the proper remedy against
a deficient pleading. It is held that a motion to
dismiss for failure to state a cause of action
should be treated as a motion for a bill of
particulars.
a. It supersedes the pleading which it amends.

b. Admissions in the superseded pleading can
still be received in evidence against the
pleader.
c. Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.
Note! The amended or superseded original
pleading is not expunged but remains on the
record although the admission of the amended
pleading amounts to withdrawal of the original
pleading.
Office of a Bill of Particulars

It is the office or function of a bill of
particulars to define, clarify, particularize, and
limit or circumscribe the issues in the case, to
expedite the trial, and assist the court.
When and How Applied
Before responding to a pleading, a party
may file a motion for bill of particulars within
15 days from service. If the pleading is a reply, it
must be filed within 10 days from service
thereof.
RULE 11
WHEN TO FILE RESPONSIVE
PLEADINGS
Sec. 1. Answer to the complaint.
The answer to the complaint must be filed
within fifteen (15) days after service of
summons, unless a different period is fixed by
the court.
Under the Rule on Summary Procedure, the
answer to the complaint must be filed within
ten (10) days from service of summons.
A notice of hearing thereof must be served

upon the adverse party at least three (3) days
before the date of hearing, unless the court for
good cause sets the hearing on shorter notice.
Failure to comply with this requirement will not
suspend the period to answer.
Instances Where
Improper
Bill
of
Particulars
Sec. 11. Extension of time to plead.

These are matters:
The court may:
a. Extend the time to plead, or
b. Allow an answer or other pleading to be
filed after the time fixed by the rules
upon motion, and
on such terms as may be just
a.
b.
c.
d.
Specified with particularity;

Within partys knowledge;
Irrelevant to allegations of complaint; or
Which are more properly ascertainable by
discovery
Sec. 4. Effect of non-compliance.

RULE 12
BILL OF PARTICULARS
In case of a failure to comply with a court

order granting the motion, the court may:
Bill of Particulars
a complementary procedural document
consisting of an amplification or more
particularized outline of a pleading, and
being in the nature of a more specific
allegation of the facts recited in the pleading
a. strike out the pleading,

b. strike out portions thereof, or
c. make such other order as it deems just.
Note! Non-compliance with the Order of the
Court for the filing of Bill of Particulars is a
R E M E D I A L
L A W
Page 26 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
ground for Dismissal of Action under Sec. 3,

Rule 17.
Sec. 4. Stay of period to file responsive
pleading.
A seasonable motion for a bill of particulars
interrupts the period within which to answer.
However, a defective Motion for Bill of
Particulars does not suspend the period to
answer. (Filipino Fabricator vs. Magsino, 157
SCRA 469, 1988)
The moving party may file his responsive
pleading within the period to which he is
entitled at the time of filing of his motion,
which shall not be less than five (5) days in any
event after:
a. service of the bill of particulars;
b. service of a more definite pleading; or
notice of denial of his motion
RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section. 2. Filing and service, defined.
Filing the act of presenting the pleading or
other paper to the clerk of court
Service the act of providing a party with a
copy of the pleading or paper concerned
Papers Required to be Filed and Served

L A W
Notice
Appearance
Demand
Offer of judgment
Similar papers
Right of Lawyer to Formal Notice

Where a party appears by attorney in an
action or proceeding in a court of record, all
notices required to be given therein must be
given to the attorney of record.
Service of the courts order upon any person
other than the counsel of record is not legally
effective and binding upon the party, nor may it
start the corresponding reglementary period for
the subsequent procedural steps that may be
taken by the attorney.
Exceptions:
a. Where service upon party himself is ordered
by the court.
b. When there is a waiver of said notice.
c. Where a motion for reconsideration of the
decision was filed.
d. Where there is a decision admitting a will to
probate and the adverse party had acted
pursuant to such decision by filing a project
of partition.
Effect of Death of Counsel
1. A verified proof of the death of the attorney
must accompany the notice of appearance of
new counsel. The new counsel cannot
merely file a formal appearance.
2. Where the law firm was the legal
representative of the party, the death of the
attorney therefrom did not extinguish the
lawyer-client relationship.
Judgment
Resolution
Order
Pleading subsequent to the complaint
Written motion
R E M E D I A L
L A W
Page 27 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
MANNER OF FILING
How made
Proof
Personally
The original copy
shall be presented
to the clerk of court
who shall endorse
on the pleading the
date and hour of
filing.
Registered mail
The date of the
mailing shall be
considered as the
date of filing.
Ordinary mail
It
does
not
constitute
filing
until the papers
are
actually
delivered into the
custody of the
clerk of court or
judge; applicable
o0nly in areas
where there is no
registered mail.
By its existence
in the record of
the case; or
By the written
or
stamped
acknowledgme
nt of its filing
by the clerk of
court on a copy
of the same, if
it is not in the
record
By the registry
receipt; and
By the affidavit
of the person
who did the
mailing,
containing the
date and place
of
depositing
the mail in the
post office in a
sealed envelope
addressed
to
the court, and
with
instructions to
the postmaster
to return the
mail to the
sender after ten
(10) days if not
delivered.
By the affidavit of
the person who did
the
mailing,
containing
the
date and place of
depositing the mail
in the post office in
a sealed envelope
addressed to the
court and with
instructions to the
postmaster
to
return the mail to
the sender after
ten (10) days if not
delivered.
MODES OF SERVICE
Manner
Personal
Service
Registered
Mail
Ordinary
Mail
Substituted
Service
Other mode
Deliver
personally a
copy to the
party or his
counsel; or
Leave a
copy
in
Deposit the
copy in the
post office,
in a sealed
envelope,
addressed
to the party
Deliver
personally
a copy to
the party or
his counsel;
or
Leave a
Deliver
the
copy to the
clerk of court,
if the office
and place of
residence of
the party or
Use
Private
Carrier
R E M E D I A L
If a pleading
is posted with
a
private
L A W
Page 28 of 212
of
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Personal
Service
Registered
Mail
Ordinary
Mail
Substituted
Service
Other mode
counsels
office with
his clerk or
with
a
person
having
charge
thereof; or
Leave a
copy,
between
8
am6 pm, at
the partys or
counsels
residence, if
known, with
a person of
sufficient
age
and
discretion
then residing
therein, in
case
no
person
is
found
in
counsels
office or his
office is not
known
or counsel
at his office,
if
known,
otherwise at
his
residence if
known, with
postage
fully paid;
With
instructions
to
the
postmaster
to
return
the mail to
the sender
after
ten
(10) days if
undelivered.
counsel are
unknown.
carrier
and
not through
registered
mail of the
post
office,
the date of
receipt by the
court
and
NOT the date
of
mailing
with
said
private
carrier is the
date of filing
of
said
pleading.
Priority
Whenever
practicable,
service shall
be
done
personally
Resorted to if
personal
service
is
NOT
PRACTICAB
LE and must
be
accompanied
by a written
explanation
why personal
service was
not done
copy
in
counsels
office with
his clerk or
with
a
person
having
charge
thereof; or
Leave a
copy,
between
8
am6 pm, at
the partys or
counsels
residence, if
known, with
a person of
sufficient age
and
discretion
then residing
therein,
in
case
no
person
is
found
in
counsels
office or his
office is not
known
Resorted to if
NO registry
service
is
available in
the locality of
either
the
sender or the
addressee
accompanied
by a written
explanation
why personal
service was
not done.
Completene
ss of service
upon actual
delivery
Actual
receipt by
the
addressee;
or
After five
upon
the
expiration of
ten (10) days
after mailing,
unless
the
court
R E M E D I A L
If
service
cannot
be
made
personally or
by mail with
a
written
explanation
why personal
service was
not done.
Upon actual
delivery
to
the clerk of
court.
L A W
Page 29 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Personal
Service
A I D
I N
Registered
Mail
(5)
days
from
the
date
the
addressee
received the
first notice
of
the
postmaster,
whichever
date
is
earlier
Proof
service
of
Written
admission
of
the
party
served;
Official
return of
the server;
or
Affidavit of
the party
serving,
containing
a
full
statement
of the date,
place and
manner of
service.
Affidavit
of
the
person
mailing
containing
facts
the
same as of
its deposit
in the post
office;
Registry
receipt
issued
by
the mailing
office; and
Registry
return card
which shall
be
filed
immediately
upon
receipt by
the sender,
or in lieu
thereof, the
unclaimed
letter with
the certified
or
sworn
copy of the
notice
by
the
postmaster
to
the
addressee.
R E M E D I A L
Ordinary
Mail
L A W
Substituted
Service
Other mode
otherwise
provides.
Affidavit of
the person
mailing
containing
facts
the
same as of
its deposit
in the post
office; and
The
unclaimed
letter with
the
certified or
sworn copy
of
the
notice by
the
postmaster
to
the
addressee.
R E M E D I A L
The delivery
to the clerk of
court must be
accompanied
with proof of
failure
of
both personal
service and
service
by
mail.
L A W
Page 30 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Notes:
1. If there is no written explanation why the service or filing was not done personally, the pleading or
paper may be considered as not filed.
2. If the party required to be served has actual knowledge of the judgment or order to be served, he
shall be considered as having been served.
3. Knowledge of order of execution carries with it the knowledge that the judgment has been rendered.
4. Carrying out or acting upon project of partition is an implied admission that an order of partition
had been made.
5. Even if law firm had been dissolved, the lawyer is still considered counsel of record
Sec. 14. Notice of lis pendens.
Lis Pendens an announcement to the whole
world that a particular property is in litigation,
serving as a warning that one who acquires an
interest over said property does so at his own
risk, or that he gambles on the result of the
litigation over said property
2. An action to quiet title thereto

3. An action to remove clouds thereon
4. An action for partition
5. Any other proceedings of any kind in court
affecting title to the land or the use or
occupation thereof or the building thereon
RULE 14
SUMMONS
Where to File
The plaintiff and the defendant may record in
the Office of the Registry of Deeds of the
province where the property is situated a notice
of the pendency of an action affecting the title
or the right of possession of real property.
Effect of Notice of Lis Pendens
Purchasers, or encumbrancers pendente lite
of the property are bound by the judgment
against their predecessor and will be held to be
buyers, or encumbrancers in bad faith.
Grounds for Cancellation by the Judge
a. After proper showing that the notice is for
the purpose of molesting the adverse party.
b. It is not necessary to protect the rights of
the party who caused it to be recorded.
Bond Cannot Substitute Notice The law
does not authorize a judge to cancel a notice of
lis pendens pending litigation upon the mere
filing of a sufficient bond by the party on whose
title notice is annotated.
Summons a court process signed and

issued, after a complaint is filed, by the clerk of
court to the defendant containing a direction to
the latter to answer the complaint within the
time fixed by the rules and a notice that unless
the defendant so answers, plaintiff will take
judgment by default and may be granted the
relief applied for.
Purpose of Summons
1. To acquire jurisdiction over the person of
the defendant.
2. To give notice to the defendant that an
action has been commenced against him.
3. To afford the defendant an opportunity to
be heard on the claim made against him.
Who May Serve Summons
1.
2.
2.
3.
Sheriff
Sheriffs deputy
Other proper court officer; or
Any suitable person authorized by the court
for justifiable reasons
Notice of Lis Pendens Proper in the

Following Cases
1. An action to recover possession of real estate
R E M E D I A L
L A W
Page 31 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
MODES OF SERVICE OF SUMMONS

Personal
Substituted
Service
Service
a.
Handing a a.
Leaving
copy of the
copies of the
summons at
summons to
the
the
defendant; or
defendants
residence
b.
with some
Tenderi
person
ng
the
of
summons to suitable age,
the defendant
if he refuses discretion, and
then
to receive and
residing
sign for it.
therein; or
Service by
Publication
Made in a
newspaper of
general
circulation in
such
places
and for such
time as the
court
may
order.
L A W
a. It is published for the dissemination of local

news and general information;
b. It has a bona fide subscription list of paying
subscribers;
c. It is published at regular intervals; and
d. It is not published for a particular class,
profession, trade, race or religious
denomination. (Basa vs. Mercado, 61 Phil.
632, 1935)
UPON WHOM SERVICE OF SUMMONS
EFFECTED
1. Entity without juridical personality
a. Any one of the defendants; or
b. Person in charge of the office or place of
business maintained in such name.
2. Prisoners Served by the officer having
the management of the jail or institution.
b.
Leaving
copies
at
defendants
office
or
regular place
of
business
with
some
competent
person
in
charge thereof.
by
This is resorted This
is Service
to WHENEVER resorted
to publication is
PRACTICABLE. only
if proper:
personal
a. Where
service
for
defendant is
unknown
JUSTIFIABLE
b. When
reasons cannot
his
be
made
within
a
whereabout
REASONABLE
s
are
unknown
time.
c. When
Impossibility
not
a
of
service
resident of
should
be
the
shown
by
Philippines
d. When
stating
the
efforts made to
resident
defendant
find
the
temporarily
defendant.
out of the
Philippines
Requisites of a Newspaper of
General Circulation
3. Minors and incompetents

a. Minor or incompetent and his
legal guardian, or
guardian ad litem; or
b. Minors father or mother
4. Domestic Private Juridical Entity
a. President
b. Managing Partner
c. General Manager
d. Corporate Secretary
e. Treasurer, or
f. In-House Counsel
Note!
This enumeration is restricted,
limited and exclusive following the rule
expressio unios est exclusio alterius. The
doctrine of substantial compliance is not
applicable as when summons is served upon
a manager, secretary, cashier or
clerk. Such service is invalid (Sps. Mason
vs. CA, GRN 144662, Oct. 13, 2003).
Note!
Substituted service of summons
under rule 14, only apply if there is
impossibility of personal service.
5. Foreign Private Juridical Entity Doing
Business
a. Resident agent designated for that purpose,
b. Government official designated by law, or
c. Any of the defendants officers or
agents
6. Public Corporations
R E M E D I A L
L A W
Page 32 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
a. Solicitor General, for the Republic of the

Philippines
b. Executive head or any officer as the law or
court may direct, for the Local
Government Unit
7.
Unknown
owner
or
whose
whereabouts is unknown Service by
publication with leave of court.
8. Non-resident defendant not found in
the Philippines
Summons
is
effected
by
EXTRATERRITORIAL SERVICE where the
action:
a. Affects personal status of plaintiff;
b. Relates to or subject of which is property in
the Philippines (real or personal) in which
the defendant has claim, lien or interest,
actual or contingent;
c. In which the relief demanded consists
wholly or in part, in excluding the defendant
from any interest therein;
d. Property of defendant has been attached in
the Philippines. (Cariaga vs. Malaya, 143
SCRA 445, 1986)
Extraterritorial Service may, with Leave
of Court, by:
1. Personal service out of the Philippines, such
as through the Philippine Embassy in the
foreign country where the defendant
resides.
2. Publication where a copy of the summons
and order of the court must be sent by
registered mail at last known address.
3. Any other manner the court may deem
sufficient.
L A W
If property is attached and later the

defendant appears and voluntarily submits to
the jurisdiction of the court, such as the filing of
a motion to lift the order of default, the cause
becomes mainly a suit in personam, with the
added incident that the property attached
remains liable, under the control of the court, to
answer to any demand which may be
established against the defendant by the final
judgment of the court. (Villareal vs. CA, GRN
107314, Sept. 17, 1998)
Extraterritorial Service of Summons on
Non-Resident Spouse
An extraterritorial service of summons on a
non-resident wife who is not found in the
Philippines and served on her husband in the
Philippines is INVALID when the non-resident
wife did not appoint her husband as her
attorney-in-fact. Although she wrote private
respondent's
attorney
that
"all
communications" intended for her should be
addressed to her husband who is also her
lawyer at the latter's address in Manila, no
power of attorney to receive summons for her
can be inferred therefrom. Moreover, service of
summons on the husband was not made upon
the order of the court as required by Rule 14,
Sec. 17 and certainly was not a mode deemed
sufficient by the court. (Valmonte vs. CA, GRN
108538, January 22, 1996)
However, service on the wife, who was in
the Philippines, of a non-resident defendant
was found sufficient because the defendant had
appointed his wife as his representative and
attorney-in-fact in a civil case. (Gemperle vs.
Schenker, 125 Phil. 458, 1967)
9. Residents temporarily out of the
Philippines
Judgment Limited to Status or Property

In proceedings in rem or quasi in rem
against a non-resident who is not served
personally within the State, and who does not
appear, the relief must be confined to the res
and the court cannot lawfully render a personal
judgment against him.
Action In Rem or Quasi In Rem may
Become In Personam
If defendant cannot be served with

summons because he is temporarily abroad, but
otherwise he is a Philippine resident, service of
summons may, by leave of court, be made by
publication. Otherwise stated, a resident
defendant in an action in personam, who
cannot be personally served with summons,
may be summoned either by means of
substituted service or by publication. (Valmonte
vs. CA, GRN 108538, January 22, 1996).
R E M E D I A L
L A W
Page 33 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
PROOF OF SERVICE OF SUMMONS

1. Service other than Publication
a. Made in writing
b. Set forth the manner, place and date of
service
c. Specify any papers which have been
served with the process and the name of
the person who received the same
d. Sworn to when made by a person other
than a sheriff or his deputy
L A W
Assuming arguendo that the service of

summons was defective, such flaw was cured
and respondents are deemed to have submitted
themselves to the jurisdiction of the trial court
when they filed an Omnibus Motion to Admit
the Motion to Dismiss and Answer with
Counterclaim, an Answer with Counterclaim, a
Motion to Inhibit and a Motion for
Reconsideration and Plea to Reset Pre-Trial.
(Oaminal vs. Castillo, supra)
Remedy of
Defective
Defendant
if
Service
is
2. Service by Publication
a. Affidavit of the
printer, his foreman or principal clerk; or
editor,
business
or
advertising
manager.
b. A copy of the publication shall be
attached to the affidavit.
c. Affidavit showing the deposit of a copy of
the summons and order to the
defendant by registered mail to his last
known address.
The defendant may file a Special

Appearance with Motion to Dismiss on
the ground of improper service of summons and
lack of jurisdiction (E. B. Villarosa & Partner
Co., Ltd. vs. Judge Benito, GRN 136426 August
6, 1999).
If denied, he may file a Petition for
Certiorari under Rule 65.
Filing of Motion to Dismiss for Failure to
Prosecute Not a General Appearance
Effect of Defective Proof of Service

Court did not acquire jurisdiction over the
petitioner, rendering null and void all
subsequent proceedings and issuances in
the action from the order of default up to
and including the judgment by default and
the order for its execution.
The filing, however, of a motion to dismiss

on the ground of failure to prosecute for an
unreasonable length of time because summons
has not been served is not a general appearance
and does not operate as a waiver of service of
summons (BAC Manufacturing And Sales
Corporation vs. CA, GRN 96784 August 2,
1991, 200 SCRA 130).
Sec. 20. Voluntary appearance.

The defendants voluntary appearance in the
action shall be equivalent to service of
summons.
Instances Considered
Appearance
as
RULE 15
MOTIONS
Sec. 1. Motion an application for relief other
than by a pleading.
Voluntary
Types of Motions
The filing of Motions seeking affirmative

relief to admit answer, for additional time to
file answer, for reconsideration of a default
judgment, and to lift order of default with
motion for reconsideration are considered
voluntary submission to the jurisdiction of the
court. (Oaminal vs. Castillo, GRN 152776, Oct.
8, 2003)
Service of Summons Defective, Deemed
Cured
a. ex parte motion made without notice to

the other party because the question
generally presented is not debatable.
b. motion of course the movant is entitled
to the relief or remedy sought as a matter of
discretion on the part of the court
c.
litigated motion made with notice
to the adverse party to give an opportunity
to oppose
d. special motion motion addressed to the
sole discretion of the court
R E M E D I A L
L A W
Page 34 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Requirements of a Valid Motion

1. It shall be in writing, except those made in
open court or in the course of a hearing or
trial;
2. It shall state the relief sought to be obtained
and the grounds upon which it is based.
3. It shall be set for hearing by the applicant,
except for motions which the court may act
upon.
4. The date of hearing must not be later than
ten (10) days after the filing of the motion.
5. The notice of hearing shall be served on the
other party at least three (3) days before the
date of hearing.
6. Proof of service of motion.
Effects of Defect or Want of Notice of
Hearing
lack of jurisdiction over the subject

matter
litis pendentia
res judicata
prescription
Purpose of the rule: To raise all available
exceptions for relief during a single opportunity
so that multiple and piece-meal objections may
be avoided.
RULE 16
MOTION TO DISMISS
Time to File Motion to Dismiss within
the time for but before filing the answer to the
complaint or pleading asserting a claim
Grounds (PSV-CLB-NPUC)
1. A motion that does not contain a notice of

hearing is a mere scrap of paper; it presents
no question which merits the attention and
consideration of the court.
2. It renders the motion pro forma and will not
interrupt the running of the prescriptive
period.
3. The defect cannot be cured by the action of
the court in setting the motion for hearing
because the defect is fatal.
Rule: 3-day Notice Rule Mandatory
Exceptions:
1. Ex parte motion
e.g., judgment on the pleadings, writ of
preliminary attachment, restraining order,
replevin
2. Urgent motion for good cause shown
3. Motions agreed upon by the parties to be
heard on shorter notice or jointly submitted
by the parties
4. Motions for summary judgment which must
be served at least 10 days before its hearing
Sec. 8. Omnibus motion.
A motion shall include all objections then
available, and those not included shall be
deemed waived EXCEPT when the objection is
based on
1. No jurisdiction over the Person of the

defendant
2. No jurisdiction over the Subject matter of
the claim
3. Venue is improperly laid
4. No Legal Capacity to sue
5. Another action is pending (Litis Pendentia)
6. Bar by Res Judicata or Prescription
7. Pleading states No cause of action
8. Claim or demand has been Paid, waived,
abandoned, or extinguished
9. Claim is Unenforceable under the Statute of
Limitation
10. Non-compliance with a Condition precedent
Rule: No Dismissal if Ground NOT alleged in
Motion.
Exception: When it appears from the
pleadings or evidence on record that the court
has no jurisdiction over the subject matter,
there is litis pendentia, or action is barred by
res judicata or prescription, the court shall
dismiss the claim (Sec. 1, Rule 9).
Courts Action on the Motion
1. Dismiss the action
2. Deny the motion
3. Order amendment of the pleading
R E M E D I A L
L A W
Page 35 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
Motion To Dismiss Under Rule 16

filed within the time for but prior to the filing of
the answer
grounded on preliminary objections
may be filed by any defending party against
whom a claim is asserted in the action
If denied, movant shall file his answer
R E M E D I A L
L A W
Motion To Dismiss Under Rule 33

(demurrer to evidence)
filed only after the plaintiff has completed the
presentation of his evidence
based on insufficiency of evidence
may be filed only by the defendant against the
complaint of the plaintiff
If denied, movant shall present his evidence
Effect of Motion to Dismiss

A motion to dismiss hypothetically admits
the truth of the facts alleged in the complaint.
However, such admission is limited only to all
material and relevant facts, which are well
pleaded in the complaint.
Rule: An action cannot be dismissed on a
ground not alleged in the motion even if
said ground is provided for in Rule 16.
Exception:
1. Those cases where the court may dismiss a
case motu proprio
2. Such ground appears in the allegations of
the complaint or in plaintiffs evidence
Requisites of Litis Pendentia:
a. Parties to the action are the same;
b. There is substantial identity in the cause of
action and relief sought; and
c. The result of the first action is determinative
of the second in any event and regardless of
which party is successful.
Requisites of Res Judicata:
a. Previous final judgment;
b. In a case prosecuted between same parties;
c. Involving the same subject matter; and
d. And same cause of action
disclosed by the pleadings and evidence, and

upon which the right of recovery depends,
irrespective of formal, technical or dilatory
objectives or contentions. (Allied Banking
Corporation vs. CA, 229 SCRA 252)
Effect of Inclusion of Another Party
In the case of Republic vs. Planas, 18 SCRA
132, the SC rules that the inclusion of the surety
as a party-defendant in the second cannot be
invoked to nullify the effect of the dismissal of
the first case. Otherwise, litigants can always
renew any litigation by the mere expediency of
including new parties.
There could be res judicata
1. without a trial, such as in a judgment on the
pleadings (Rule 34);
2. in a summary judgment (Rule 35);
3. in an order of dismissal under Section 3 of
Rule 17 on the ground of lack of interest or
failure to prosecute on the part of plaintiff
4. in a judgment upon compromise
5. when a compromise has been perfected
even if not judicially approved, EXCEPT
where any cause of action arises from the
application or violation of the compromise
agreement.
6. in expropriation case where issue of interest
is NOT raised
Note! There is NO Res Judicata in
naturalization proceedings.
Test of Res Judicata

The test of determining res judicata is
simply this: Would the same evidence support
and establish both the present and the former
action? The answer must be in the affirmative.
Merits a judgment is upon the merits
when it amounts to a declaration of the law to
the respective rights and duties of the parties,
based upon the ultimate fact or state of facts
However, it is well-settled that the decisions

of and orders of administrative agencies,
rendered pursuant to their quasi-judicial
authority, have, upon their finality, the force
and effect of a final judgment within the
purview of the doctrine of res judicata.
R E M E D I A L
L A W
Page 36 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Section 5. Effect of dismissal.

The action cannot be refiled if it was
dismissed on any of these grounds:
REP-S
a. Res judicata
b. Extinguishment of the claim or demand
c. Prescription
d. Statute of Frauds
Section
6.
Pleading
affirmative defenses.
grounds
L A W
May the petitioner, in an action for

expropriation, after he has been placed
in possession of the property and before
the termination of the action, move to
dismiss his own petition?
Yes. The right of the plaintiff to dismiss an
action with the consent of the court is
universally recognized with certain well-defined
exceptions.
as
If no motion to dismiss had been filed, any of

the grounds for dismissal provided for in Rule
16, INCLUDING IMPROPER VENUE, may be
pleaded
as
affirmative
defenses
and
preliminarily heard in the discretion of the
court.
Dismissal under this section is WITHOUT
prejudice to the prosecution in the same or
separate action of a COUNTERCLAIM pleaded
in the answer
RULE 17
DISMISSAL OF ACTIONS
If the plaintiff discovers that the action

which he commenced was brought for the
purpose of enforcing a right or a benefit, the
advisability or necessity of which he later
discovers no longer exists, or that the result of
the action would be different from what he had
intended, then he should be permitted to
withdraw his action, subject to approval of the
court. The plaintiff should not be required to
continue the action, subject to some welldefined exceptions, when it is not to his
advantage to do so. Courts should not require
parties to litigate when they no longer desire to
do so. Courts, in granting permission to dismiss
an action, of course, should always take into
consideration the effect which said dismissal
would have upon the rights of the defendant.
(City of Manila vs. Ruymann, 37 Phil. 421)
Kinds of Dismissal of Actions

1. Dismissal upon notice by plaintiff without
leave of court
Effect: WITHOUT prejudice except with
the operation of the two-dismissal rule
2. Dismissal upon motion of plaintiff with
leave of court
Effect: WITHOUT prejudice unless
otherwise specified in the order of the court
3. Dismissal due to fault of plaintiff upon
motion or motu proprio
Effect: WITH prejudice unless otherwise
declared by the court
All the above dismissal shall be without
prejudice to the right of the defendant to
prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of
motion he manifest his preference to have his
counterclaim resolved in the same action.
Effect of the dismissal of the action by

the court for failure of the party to
comply with the order of the court
Action may be dismissed upon motion of the
defendant or upon the courts own motion,
and the dismissal shall have the effect of an
adjudication on the merits, unless otherwise
provided by the court. (Viston vs. Angeles,
375 SCRA 138)
Rule on Summary Procedure
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All crossclaims shall be dismissed.
R E M E D I A L
L A W
Page 37 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
RULE 18
PRE-TRIAL
L A W
need not really stress the fact that the defendant

has a valid and meritorious defense because his
answer which contains his defense is already on
record. (Saguid vs. CA, GRN 150611, June 10,
2003, 403 SCRA 678)
PRE-TRIAL
a mandatory procedural device by which
the Court is called upon, after the filing
of the last pleading, to compel the
parties and their lawyers to appear
before it for the purposes enumerated
under Sec. 2, Rule 18
aims to take the trial of cases out of the
realm of surprise and maneuvering
duty of plaintiff to move ex-parte that
the case be set for pre-trial after the last
pleading has been filed.
Special Authority Required

The SC held that while counsel had verbal
authority to compromise the case, the rules,
however, require, for attorneys to compromise
the litigation of their clients, a special
authority. (Home Insurance Co. vs. United
States Lines, Co., 21 SCRA 860).
The representative must be fully authorized
in WRITING by a special power of attorney to:
Last Pleading
In Chan vs. Abaya (90 SCRA 6), the calling
of a pre-trial conference where no answer has
yet been filed because of an unresolved motion
for a bill of particulars was held as premature
since the last pleading has not yet been filed.
Reason for Last Pleading It is intended to
fully appraise the court and the parties of all
issues in the case before the pre-trial is
conducted.
Note! Notice of pre-trial shall be served on
counsel, or on the party who has no counsel.
The counsel served with such notice is charged
with the duty of notifying the party represented
by him.
1. enter into an amicable settlement

2. submit to alternative modes of dispute
settlement, and
3. enter into stipulations or admissions of facts
and of document
RULE 19
INTERVENTION
Intervention a proceeding in a suit or an
action by which a third person is permitted by
the court to make himself a party, either by
joining as plaintiff in claiming what is sought by
the complaint, or uniting with defendant in
resisting the claims of plaintiff, or demanding
something adverse to both of them. (Garcia, et
al., vs. David, 67 Phil. 279)
Effect of Non-Appearance of Parties

1. Plaintiffs failure to appear cause for the
dismissal of the action
2. Defendants failure to appear cause to
allow plaintiff to present evidence ex-parte
Note! The failure to file a pre-trial brief shall
have the same effect as failure to appear at the
pre-trial.
Absence of plaintiff on pre-trial, the case
may be dismissed. Absence of defendant,
plaintiff can present evidence.
Who may Intervene Any person who has

legal interest:
a. in the matter of litigation, or
b. in the success of either of the parties, or
c. an interest against both, or
d. is so situated as to be adversely affected
by a distribution or other disposition of
property
in the custody of the
court or of an officer thereof, and
e. Whose right my not fully be protected in a
separate proceeding
Factors to be considered by the court:
Remedy of Defendant
The remedy of the defendant who failed to
file his pre-trial brief is to file a motion for
reconsideration showing his failure to file pretrial brief was due to F-A-M-E. The motion
1. Whether or not the intervention will unduly

delay or prejudice the adjudication of the
rights of the original parties
2. Whether or not the intervenors rights may
be fully protected in a separate proceeding
R E M E D I A L
L A W
Page 38 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
INTERVENTION
an ancillary action
proper in any of the
four situations
mentioned in this Rule
defendants are already

original parties to the
pending suit
A I D
I N
R E M E D I A L
L A W
Exception: With respect to indispensable

parties, intervention was allowed even on
appeal.
INTERPLEADER
an original action
presupposes that
the plaintiff has no
interest in the
subject matter of
the action or has an
interest therein,
which in whole or
in part, is not
disputed by the
other parties to the
action
defendants are
being sued
precisely to
implead them
Note! Intervention should have a cause

of action.
RULE 21
SUBPOENA
Subpoena a process directed to a person
requiring him to attend and testify at the
hearing or the trial of an action, or at any
investigation
conducted
by
competent
authority, or for the taking of his deposition.
Kinds of Subpoena
May a mortgagee of a vessel intervene

in a collection suit against a mortgagor
filed by another creditor?
1. Subpoena ad testificandum Subpoena

to testify. A technical and descriptive term
for the ordinary subpoena.
No. The interest which entitles a person to

intervene in a suit between other parties must
be in the matter of litigation and of such direct
and immediate character that the intervenor
will either gain or lose by direct legal operation
and effect of the judgment.
2. Subpoena duces tecum A process by

which the court, at the instance of a party,
commands a witness who has in his
possession or control some document or
paper that is pertinent to the issues of a
pending controversy, to produce it at the
trial.
Assuming judgment is rendered against the

vessel, the mortgagee is not precluded from
proceeding with its foreclosure of the vessel.
Grounds for Quashing Subpoena

Duces Tecum
Rule: Intervention is merely collateral or

accessory or ancillary to the principal action
and not an independent proceeding; an
interlocutory proceeding dependent on, or
subsidiary to, the case between the original
parties.
Implication: Dismissal of the main case will
result in the dismissal of the complaint-inintervention.
Exception: Where dismissal of the complaintin-intervention was due to the dismissal of
the principal case resulting from the
compromise between original parties would
result to grave injustice to party intervenor
as a future litigation and/or refilling of the
case will not protect his right or interest in
the present action.
Time to Intervene At any time before
rendition of judgment by the trial court.
1. Unreasonable and oppressive;

2. Relevancy of books, documents or things
does not appear; or
3. Failure to advance reasonable costs of
production thereof
Grounds for Quashing Subpoena
Ad Testificandum
1. That the witness is not bound thereby; or
2. That the witness fees and kilometrage
allowed by these Rules were not tendered
when the subpoena was served.
Courts Action on Non-Attendance
In case of failure of a witness to attend, the
court or judge issuing the subpoena, upon proof
of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the
province, or his deputy, to arrest the witness
and bring him before the court or officer where
his attendance is required, and the cost of such
R E M E D I A L
L A W
Page 39 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
warrant and seizure of such witness shall be

paid by the witness if the court issuing it shall
determine that his failure to answer the
subpoena was willful and without just excuse.
(Sec. 8, Rule 21)
Exception: Viatory Right The provisions
of sections 8 and 9 of this Rule shall not apply
to a witness who resides more than one
hundred (100) kilometers from his residence to
the place where he is to testify by the ordinary
course of travel, or to a detention prisoner if no
permission of the court in which his case is
pending was obtained.
Note! This exception applies only to civil
cases.
RULE 22
COMPUTATION OF TIME
First Day Excluded and Last Day
Included; Pretermission of Holidays
The computation of the appeal periods is to
the effect that the first day shall be excluded but
the last day of the period so computed is to be
included unless it is a Saturday, a Sunday or a
legal holiday in which event the time shall run
until the end of the next day which is neither a
Sunday nor a holiday. Accordingly, in said
cases, the period to perfect an appeal is
extended ipso jure to the first working day
immediately following.
Extension of Time; Holiday Counted
Any extension of time to file the required
pleading should thereafter be counted from the
expiration of the period regardless of the fact
that said due date is a Saturday, Sunday or legal
holiday. (A. M. No. 00-2-14-SC, Feb. 29, 2000)
DEPOSITIONS
L A W
Modes of Discovery under the Rules

1. Depositions pending action (Rule 23).
2. Depositions before action or pending appeal
(Rule 24).
3. Interrogatories to parties (Rule 25).
4. Admission by adverse party (Rule 26).
5. Production or inspection of documents, or
things (Rule 27).
6. Physical and mental examination of persons
(Rule 28).
Purpose of Rules of Discovery
1. To obtain knowledge of material facts or
admissions from the adverse party through
written interrogatories;
2. To obtain admissions from the adverse
party regarding the genuineness of relevant
documents or relevant matters of fact
through requests for admissions;
3. To inspect relevant documents or objects
and land or other property in the possession
or control of the adverse party; and
4. To determine the physical or mental
condition of a party when such is in
controversy.
Leave of Court
1. In line with the principle of according
liberal treatment to the depositiondiscovery mechanism, such modes of
discovery as
(a) depositions (whether by
oral examination or written interrogatories)
under Rule 24, (b) interrogatories to parties
under Rule 25, and (c) requests for
admissions under Rule 26, may be availed
of without leave of court, and generally,
without court intervention. The Rules of
Court explicitly provide that leave of court is
NOT necessary to avail of said modes of
discovery after answer to the complaint has
been served. (Sec. 1, Rule 24, Sec. 1, Rule 25,
Sec. 1, Rule 26)
How Made
1. By leave of court after jurisdiction has been
obtained over any defendant or over
property which is the subject of the action.
2. Without leave of court after an answer has
been served.
A deposition may be in the form of oral
examination or written interrogatories
It is only when an answer has NOT yet been

filed (but after jurisdiction has been obtained
over the defendant or property subject of the
action) that prior leave of court is needed to
avail of these modes of discovery, the reason
being that at that time the issues are not yet
joined and the disputed facts are not clear.
2. Leave of court is required as regards
discovery by (a) production or inspection of
R E M E D I A L
L A W
Page 40 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
documents or things in accordance with

Rule 27, or (b) physical and mental
examination of persons under Rule 28,
which may be granted upon due application
and a showing of due cause.
L A W
allegations of the requesting partys pleading

but should set forth relevant evidentiary
matters of fact, or documents described in and
exhibited with the request, whose purpose is to
establish said partys cause of action or defense.
(Po vs. CA, 164 SCRA 668)
Sanctions
Limitations of Deposition:
To ensure that the availment of the modes
of discovery is otherwise untrammeled and
efficacious, the law imposes serious sanctions
on the party who refuses to make discovery
such as:
1. dismissing the action or proceeding or part
thereof;
2. contempt of court, or arrest of the party or
agent of the party;
3. payment of the amount of reasonable
expenses incurred in obtaining a court order
to compel discovery;
4. taking the matters inquired into as
established in accordance with the claim of
the party seeking discovery;
5. refusal to allow the disobedient party to
support or oppose designated claims or
defenses;
6. striking out pleadings or parts thereof;
7. staying further proceedings (Rule 29)
1. Examination is conducted in bad faith

2. Examination is conducted in such a manner
as to annoy, embarrass or oppress the
person subject to the inquiry
3. When the inquiry touches upon irrelevant
or encroaches upon the recognized domains
of privilege.
Scope of Inquiry in Depositions
1. Matter which is relevant to the subject of the
pending action;
2. Not privileged
3. Not restricted by a protective order
Note! Certiorari will not lie against an order
admitting or rejecting a deposition in evidence,
the remedy being an appeal from the final
judgment.
EFFECT OF TAKING DEPOSITIONS
Kinds of Depositions
1. Deposition de be esse one taken in a
pending action. (Sec. 1, Rule 23)
2. Deposition perpetuam rei memoriam
or those taken prior to the institution of an
apprehended or intended action. (Rule 24)
Counsel of party to whom a written request
for admission is addressed under Section 1,
Rule 26 of the Rules of Court may answer
such request for his client (Laada vs. CA,
375 SCRA 543)
Request for admission cannot be made
upon the same subject matters or facts
alleged in the complaint
A party should not be compelled to admit
matters of fact already admitted by his pleading
and concerning which there is no issue, nor
should he be required to make a second denial
of those already denied in his answer to the
complaint. A request for admission is not
intended to merely reproduce or reiterate the
Rule: A party shall not be deemed to make a

person his own witness for any purpose by
taking his deposition because depositions
are taken for discovery and not for use as
evidence.
Exception: If a party offers the deposition in
evidence, then he is deemed to have made
the deponent his witness.
Exception to the Exception: Unless the
deposition is that of any adverse party, and
unless, of course, the deposition is used for
contradicting the deponent.
PERSONS
BEFORE
DEPOSITIONS MAY BE TAKEN
WHOM
1. Within the Philippines

a. judge
b. notary public
c. any person authorized to administer
oaths, as stipulated by the parties in
writing
R E M E D I A L
L A W
Page 41 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. Abroad
a. on notice, before a secretary of embassy
or legation, consul general, consul, viceconsul, or consular agent of the Phils.;
b. before such person or officer as may be
appointed by commission or letters
rogatory
c. any person authorized to administer
oaths, as stipulated by the parties in
writing
COMMISSION
issued to a nonjudicial foreign
officer who will
directly take the
testimony
applicable rules of
procedure are those
of the requesting
LETTERS
ROGATORY
issued to the
appropriate judicial
officer of the foreign
country who will
direct somebody in
said foreign country
to take down
testimony
applicable rules of
procedure are those
of the foreign court
court
resorted to if
permission of the
foreign country is
given
leave of court is not
necessary
As to
Procedure
As to Scope
requested to act
resorted to if the
execution of the
commission is
refused in the foreign
country
leave of court is
necessary
EFFECT OF FAILURE TO SERVE

WRITTEN INTERROGATORIES
The provision and Rule 26 are directed
to the party who fails and refuses to RESORT to
the discovery procedures, and should not be
confused with the provisions of Rule 29 which
provides for sanctions or other consequences
upon a party who refuses or fails to COMPLY
with discovery procedures duly availed of by
opponent.
Depositions Upon Written

Interrogatories to Parties
As to
Deponent
L A W
Interrogatories to Parties
party or ordinary witness
party only
with intervention of the officer

authorized by the Court to take
deposition
no intervention. Written interrogatories

are directed to the party himself
direct, cross, redirect, re-cross
only one set of interrogatories

15 days to answer unless extended or
reduced by the court
As to Time
no fixed time
RULE 30
TRIAL
Note! If the adverse party admits the facts for

which evidence is to be presented, the trial
should not be postponed.
Sec. 3. Requisites of motion to postpone

trial for absence of evidence.
There must be an affidavit showing:
Sec. 6.
Agreed statements of facts.
This is known as STIPULATION OF FACTS

and is among the purposes of a pre-trial. The
parties may also stipulate verbally in open
court. Such stipulations are binding unless
relief therefrom is permitted by the court on
good cause shown, such as error or fraud.
1. Materiality or relevance of such evidence;

2. Due diligence in procuring it.
R E M E D I A L
L A W
Page 42 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
But counsel cannot stipulate on what their

respective EVIDENCE consists of and ask that
judgment be rendered on the basis of such
stipulation.
Stipulations of facts are not permitted in
actions for ANNULMENT OF MARRIAGE and
for LEGAL SEPARATION.
L A W
Note! Consolidation of cases on appeal and

assigned to different divisions of the SC and the
CA is also authorized. Generally, the case which
was appealed later and bearing the higher
docket number is consolidated with the case
having the lower docket number.
Cases which have a common question of
law may be consolidated.
Sec. 8. Suspension of actions.

RULE 32
TRIAL BY COMMISSIONER
The suspension of actions shall be governed

by the provisions of the Civil Code:
Art. 2030 of the Civil Code: Every civil action
or proceeding shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or both
parties; or
2. If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused the
offer.
RULE 31
CONSOLIDATION OR SEVERANCE
Commissioner a person to whom a cause

pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered.
Reference Should be Express
Reference of a case to a commissioner must
be by a written consent of both parties. The
commissioner may be appointed by the parties
or by the court.
Refusal of Witness
Purpose of Consolidation
To avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial
court and save unnecessary costs and expenses.
The refusal of a witness to obey a subpoena

issued by the commissioner or to give evidence
before him, shall be deemed a contempt of the
court which appointed the commissioner.
RULE 33
DEMURRER TO EVIDENCE
Meaning and Purpose
Ways of Consolidating Cases:

1. By recasting the cases already instituted,
conducting only one hearing and rendering
only one decision;
2. By consolidating the existing cases and
holding only one hearing and rendering
only one decision; and
3. By hearing only the principal case and
suspending the hearing on the others until
judgment has been rendered in the principal
case. (Test-case method).
Demurrer to evidence is a motion to dismiss

filed after plaintiff has presented his
evidence on the ground that the evidence
thus presented did not prove the allegations
of the complaint.
In civil cases, demurrer to evidence is filed
after plaintiff rested its case. While in criminal,
it is the same but when prosecution rested its
case.
R E M E D I A L
L A W
Page 43 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Effect on the Right to Present Evidence

Civil Cases
1. Defendant need not ask for leave of court.
Criminal Cases
1. Leave of court is necessary so that the accused
could present his evidence if the demurrer is
denied.
2. If the court finds the prosecutions evidence
insufficient, it will grant the demurrer by
rendering judgment acquitting the accused.
Judgment of acquittal is not appeallable; double
jeopardy sets-in.
2. If the court finds plaintiffs evidence

insufficient, it will grant the demurrer by
dismissing the complaint. The judgment of
dismissal is appeallable by the plaintiff. If
plaintiff appeals and judgment is reversed by
the appellate court, it will decide the case on the
basis of the plaintiffs evidence with the
consequence that the defendant already loses
his right to present evidence; no res judicata in
dismissal due to demurrer.
3. If the court denies demurrer, defendant will 3. If court denies the demurrer:
present his evidence.
a. if demurrer was with leave, accused may
present his evidence
b. if the demurrer was without leave, accused
can no longer present his evidence and
submits the case for decision based on the
pr1osecutions evidence
RULE 34
JUDGMENT ON THE PLEADINGS
Judgment on the pleading is proper when
an answer fails to tender an issue, or otherwise
admits the material allegation of the adverse
partys pleading. However, the trial court
cannot direct a judgment on the pleading in the
absence of a motion filed for the purpose by a
party litigant. (De Luna vs. Abrigo, 181 SCRA
150)
Plaintiffs sued defendants for payment
of articles valued at P2,400. In their
answer, defendants admitted their
liability but requested the plaintiff to
wait since they had no money yet, and
were in fact still awaiting the payment
to them of certain accounts receivable.
Is judgment on the pleading proper?
Yes, since after all, the answer fails to tender
a material issue. The alleged temporary
insolvency of the defendants is of no
consequence, for a creditor is generally not an
insurer of his debtors business. (Apelario vs.
Chavez, Oct. 16, 1961)
Note! A judgment on the pleadings must be on

motion of the claimant. However, if at the pretrial the court finds that a judgment on the
pleadings is proper, it may render such
judgment motu proprio.
When not Proper
1. When the answer raises an issue.
2. In actions for annulment of marriage or for
legal separation.
RULE 35
SUMMARY JUDGMENTS
Summary Judgment one granted by the
court, upon motion by either party, for an
expeditious settlement of the case, there
appearing from the pleadings, depositions, and
affidavits that there are no important questions
or issues of fact involved (except as to the
amount of damages) and that therefore the
moving party is entitled to a judgment as a
matter of law.
Summary judgment is a judgment which a
court may render before trial, but after both
parties have pleaded upon application by one
party supported by affidavits, depositions or
R E M E D I A L
L A W
Page 44 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
other documents, with notice upon the adverse

party who may file an opposition supported also
by affidavits, depositions or other documents,
should the court after hearing summarily both
parties with their respective proofs find that
here is no genuine issue between them.
Judgment on the Pleadings vs.
Summary Judgments
1. Summary judgment is one granted on the
basis of the pleadings, depositions, admissions
and affidavits while judgment on the pleadings
is based solely on the pleadings.
2. Summary judgment is available to both
parties while judgment on the pleadings is
generally available only to the plaintiff
(available to defendant only in case he presents
a counterclaim).
3. In summary judgment, there may be issues
involved in the case but these issues are
irrelevant. On the other hand, in judgment on
the pleadings, there are no real issues or there is
an admission of material allegations.
Note! Summary judgment, applies to both
plaintiff and defendant.
L A W
Requisites of a Judgment
a. It should be in writing, personally and
directly prepared by the judge;
b. It must state clearly and distinctly the facts
and the law on which it is based; and
c. It should contain a dispositive part and
should be signed by the judge and filed with
the clerk of court.
Note! What constitutes rendition of judgment
is not the mere pronouncement of the judgment
in open court but the filing of the decision
signed by the judge and filed with the clerk of
court. (Quintana Sta. Maria vs. Ubay, 87 SCRA
179)
Promulgation the process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel
Memorandum Decision the judgment or
final resolution of the appellate court may adopt
by reference the findings of facts and
conclusions of law contained in the decision of
the trial court.
Entry of Judgments and Final Orders
Genuine Issue an issue of fact which calls

for the presentation of evidence as
distinguished from an issue which is fictitious
and contrived, set up in bad faith and patently
unsubstantial so as not to constitute a genuine
issue for trial. The court can determine this in
the basis of the pleadings, admissions,
documents, affidavits and/or counter-affidavits
submitted by the parties to the court. Where
facts pleaded by the parties are disputed or
contested, proceedings for summary judgment
cannot take the place of a trial. (Paz vs. CA, 193
SCRA 748)
RULE 36
JUDGMENTS, FINAL ORDERS AND
ENTRY THEREOF
Judgment the final consideration and
determination by a court of the rights of the
parties, upon matters submitted to it in an
action or proceeding.
The date of finality of the judgment or final

order shall be deemed to be the date of its entry.
This means that that the judgment does not
become final because of its entry, but the entry
is made because it is already final.
Motion for Entry of Judgment
To ensure that the judgment or order should
be immediately entered by the clerk of court,
the prevailing party should file a motion for the
entry (and execution, if proper) of the judgment
or final order. The date of its entry is the
starting point of the six-month period for filing
a petition for relief, the five-year period for
filing a motion for execution and the ten-year
period of prescription of judgments.
Note! The power to amend a judgment is
inherent to the court before judgment becomes
final and executory. Once a judgment has
attained finality (expiration of the period to
appeal), no further amendment or correction
can be made by the court except for clerical
errors or mistakes.
R E M E D I A L
L A W
Page 45 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Rendition of Judgment
L A W
2. A judgment by confession relicta

verificatione after pleading and before trial,
the defendant both confessed the plaintiffs
cause of action and withdrew or abandoned his
plea or other allegations, whereupon judgment
was entered against him without proceeding to
trial.
A judgment is considered rendered upon

filing of the signed decision. This includes an
amended decision because an amended
decision is a distinct and separate judgment and
must follow the established procedural rule.
RULE 37
NEW TRIAL OR RECONSIDERATION
Judgment by Confession
Judgment upon confession is one which is
rendered against a party upon his petition or
consent. It usually happens when the defendant
appears in court and confesses the right of the
plaintiff to judgment or files a pleading
expressly agreeing to the plaintiffs demand.
New Trial a new investigation and hearing

by the court of the issues involved in a case
although a judgment thereon has already been
given to the end that the substantial rights of
a party will not be materially affected.
TAKE NOTE!!! Under the recent case of
Neypes vs. CA, after a party filed a motion for
new trial/reconsideration within the period of
filing an appeal which is 15 days, was denied,
the party then has a NEW FRESH 15 day period
to file his appeal.
Two Kinds of Judgment by Confession

1. A judgment by cognovit actionem here,
the defendant after service instead of entering a
plea, acknowledged and confessed that the
plaintiffs cause of action was just and rightful.
Motion for New Trial
Motion for Reconsideration
1.
The grounds are: fraud, accident, mistake
or excusable negligence or newly discovered
evidence which could not, with reasonable
diligence, have discovered and produced at the
trial, and which if presented would probably alter
the result.
2.
Second motion may be allowed.
1.
The grounds are: the damages awarded
are excessive, that the evidence is insufficient to
justify the decision or final order, or that the
decision or final order is contrary to law.
3.
If a new trial is granted the trial court will
set aside the judgment or final order
2.
Second motion from same party is
prohibited.
3.
If the court finds that excessive damages
have been awarded or that the judgment or
final order is contrary to the evidence or law, it
may amend such judgment or final order
accordingly.
Intrinsic Fraud vs. Extrinsic Fraud

1. Intrinsic fraud refers to acts of a party in
litigation during the trial, such as the use of
forged instruments or perjured testimony,
which did not affect the presentation of the
case, but did not prevent a fair and just
determination of the case.
2. Extrinsic fraud is one the effect of which
prevents a party from having a trial or real
contest, or from presenting all of his case to the

court or where it operates upon matters not
pertaining to the judgment itself but to the
manner by which it was procured so that there
is not a fair submission of the controversy.
Accident As a ground for new trial is allowed
where the party seeking it had exercised
ordinary diligence to ascertain the facts which,
it is claimed, surprised or prevented said party
from presenting his case.
R E M E D I A L
L A W
Page 46 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Mistake It is some unintentional act,

omission or error arising from ignorance,
surprise, imposition or misplaced confidence. It
is the result of ignorance of law or fact that has
misled a person to commit that which, if he had
not been in error, he could not have done. It
may arise either from unconscious, ignorance,
forgetfulness,
imposition,
or
misplaced
confidence.
Excusable Neglect A failure to take the
proper steps at the proper time, not in
consequence of a partys own carelessness,
inattention, or willful disregard of the process of
the unavoidable hindrance or accident, or on
reliance on the care and vigilance of his counsel
or on promises made by the adverse party.
Affidavit of Merits one which states:
a. nature or character of the fraud,
accident,
mistake
or
excusable
negligence on which the motion for new
trial is based;
b. the facts constituting the movants good
and substantial defenses or valid causes
of action; and
c. the evidence which he intends to present
if his motion is granted.
Requisites of Newly-Discovered Evidence
a. Such evidence has been discovered after trial;
b. Could not have been discovered and
produced at the trial even with the exercise of
reasonable diligence;
c. Must be material and not merely collateral, or
cumulative or corroborative, or purely for
impeaching a witness; and
d. If presented, it would probably alter the
result
Otherwise it is called forgotten evidence.
Effect of Filing Motion
A motion suspends or tolls the running of
the reglementary period for appeal EXCEPT
when the same is pro-forma.
Pro-forma Motion when it does not
comply with Rule 15 and Rule 37, e.g. it does
not point out specifically the findings or
conclusions of the judgment as are contrary to
law, making express reference to the
testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such
L A W
findings or conclusions, and is merely intended

to delay the proceedings or if there is no
affidavit of merit.
Sec. 6. Effect of granting of motion for
new trial.
When motion is granted, the original
judgment is thereby vacated and the action
stands for trial de novo, but the recorded
evidence taken upon the former trial so far as
the same is material and competent to establish
the issues, shall be used at the new trial taking
the same.
Sec. 9. Remedy against order denying a
motion for new trial or reconsideration.
An ORDER denying the motion is not
appeallable. Certiorari or prohibiton will also
not lie. The remedy is an appeal from the
JUDGMENT or FINAL ORDER.
RULE 38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
Relief from Judgment It is a remedy
provided by law to any person against whom a
decision or order is entered into through fraud,
accident, mistake or excusable negligence. The
relief provided for is of equitable character,
allowed only in exceptional cases as when there
is no other available or adequate remedy.
When Available The remedy is available for
failure to perfect appeal on time due to fraud,
accident, mistake or excusable mistake.
A verified petition must be filed within
sixty (60) days after petitioner learns of
the judgment or final order to be set
aside, and not more than six (6) months after
such judgment or final order was entered.
Available only when judgment becomes
final and executory, and can be applied to
decision of any court which pertains to MTC
and RTC.
Relief from judgment is still the remedy
available
against
judgment
based
on
compromise.
Where Premised Relief from judgment is
premised on equity and it is granted only n
R E M E D I A L
L A W
Page 47 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
exceptional cases, as when a judgment or order

is entered, or any other proceeding is taken
through fraud, accident, mistake or excusable
negligence.
Effect to Execution of Judgments
Execution of judgments is not automatically
stayed by filing a petition for relief from
judgment. To stay execution, a writ of
preliminary execution should be obtained in
accordance with Sec. 5, Rule 38.
Ways of Attacking
Judgment
the
Validity
of
1. By petition for relief from judgment under

Rule 38;
2. By direct action to annul and enjoin the
enforcement of the judgment where the
alleged defect is not apparent on its face or
from the recitals contained in the judgment,
but is entirely regular in form; and
3. By direct action, as certiorari, or by a
collateral attack against the challenged
judgment which is void upon its face, or that
the nullity of the judgment is apparent from
its own recitals.
Note! The period fixed by Rule 38 is nonextendible.
RULE 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
L A W
a. the payment of money or

b. the sale of real or personal property
When Execution is a Matter of Right
1. Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes
of the action or proceeding upon the expiration
of the period to appeal therefrom if no appeal
has been duly perfected;
2. If the appeal has been duly perfected and
finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of
the judgment obligee, submitting therewith
certified true copies of the judgment or
judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to
the adverse party.
Note! A final order or judgment finally
disposes or adjudicates or determines the rights
or some right or rights of the parties, either on
the entire controversy or on some definite and
separate branch thereof, and concludes them
until it is reversed or set aside.
Doctrine of Immutability of Judgment
The jurisdiction of the court to amend,
modify or alter its judgment terminates when
the judgment becomes final.
Court
Cannot
Judgment
Execution a remedy provided by law for the

enforcement of a final judgment.
Writ of Execution a judicial writ issued to
an officer authorizing him to execute the
judgment of the court
Note! Execution can only issue against a party
and NOT against one who has not had his day
in court.
Execution is NOT an action but is included
in the phrase process in an action part of
the proceedings considered as still pending. An
execution is fittingly called the fruit and end
of the suit and aptly called the life of the
law.
Special Judgment one that requires the
performance of an act other than:
Amend
Executory
Rule: After judgment has become executory,

the court cannot amend the same.
Exceptions:
1. To make corrections of clerical errors, not
substantial amendments.
2. To clarify an ambiguity which is borne out
by and justifiable in the context of the
decision.
3. In judgments for support, which can always
be amended from time to time.
Court Cannot Refuse Execution
Rule: Where the judgment or order has become
executory, the court cannot refuse to issue a
writ of execution.
Exceptions:
1. When subsequent facts and circumstances
transpire which render such execution
R E M E D I A L
L A W
Page 48 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
2.
3.
4.
5.
6.
7.
A I D
I N
R E M E D I A L
unjust or impossible, such as a supervening

cause.
On equitable grounds, as when there has
been a change in the situation of the parties
which makes execution inequitable.
Where judgment has been novated by the
parties.
When petition for relief or an action to
enjoin the judgment is filed and a
preliminary injunction is prayed for and
granted.
Where the judgment turns out to be
incomplete or is conditional since, as a
matter of law, such judgment cannot
become final.
Where the judgment has become dormant,
the five year period having expired without
the judgment having been revived.
In cases of special and exceptional nature
where it becomes imperative in the higher
interest of justice to direct suspension of its
execution, whenever it is necessary to
accomplish the aims of justice.
Cases Where Execution may Issue even if

Judgment is Not Final
L A W
1. There must be a motion by the prevailing

party with notice to the adverse party;
2. There must be good reasons for issuing
execution; and
3. That the good reasons be stated in a special
order.
Note! The reason allowing for immediate
execution
must
constitute
superior
circumstances demanding the urgency as to
outweigh the injury or damage of the losing
party should it secure a reversal of the judgment
on appeal. Absent such justification, the order
of execution must be struck down as flawed
with grave abuse of discretion.
Sec. 3. Stay of Discretionary Execution
Discretionary execution may be stayed upon
the approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it is directed, conditioned upon the
performance of the judgment or order allowed
to be executed in case it shall be finally
sustained.
Execution not Appeallable
1. Support pendente lite

2. Judgment of inferior courts in ejectment
cases
3. Execution pending appeal
4. Injunction, accounting and receivership and
support and such other judgment as are
now or hereafter declared to be executory
5. The decision of the RTC in appealed civil
cases under the Revised Rules of Summary
Procedure, including forcible entry and
unlawful detainer, shall be immediately
executory
6. The decision of the Labor Arbiter
reinstating a dismissed or separated
employee, in so far as the reinstatement
aspect is concerned, shall be immediately
executory, even pending appeal
Rule: An order of execution is not appeallable

otherwise there would be no end to the
litigation between the parties.
Exceptions:
1. When the terms of the judgment are not very
clear;
2. When the order of execution varies with the
tenor of the judgment
Judgments Not Stayed By Appeal:
1.
2.
3.
4.
5.
Discretionary Execution; Instances

1. Execution of a judgment or final order
pending appeal
2. Execution of several, separate or partial
judgments
Requisites for a Valid Execution Pending
Appeal
Injunction
Receivership
Accounting
Support
Such other judgments declared to be
immediately executory unless otherwise
ordered by the trial court
Period and Manner of Execution

1. A final and executory judgment or order
may be executed on motion within five (5)
years from the date of its entry.
2. After the lapse of such time, and before it is
bared by the statute of limitations, a
judgment may be enforced by action.
R E M E D I A L
L A W
Page 49 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
3. The revived judgment may also be enforced

by motion within five (5) years from
the date of its entry and thereafter by
action before it is barred by the statute of
limitations.
Note! Judgment for support does not become
dormant, thus it can always be executed by
motion.
The 5-year period may be extended by the
conduct of judgment debtor. A revived
judgment is a new judgment thus another 5/10year period to execute and revive is given the
party.
Quashal of Writ of Execution
A writ of execution may be quashed or
stayed on equitable grounds:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
when it is improvidently issued

when it is defective in substance
when it is issued against wrong party
when judgment debt has been paid
when it was issued without authority
when a change of situation of the parties
renders execution inequitable
when controversy was never validly
submitted to the court
when the writ of execution varies the
judgment
when execution is sought to be enforced
against property exempt from execution
the terms of the judgment are not clear
enough and there remains room for
interpretation
Modes of Execution Under the

Katarungang Pambarangay Law
1. The amicable settlement or arbitration
award may be enforced by execution by the
Lupong Tagapamayapa within six (6)
months from the date of the settlement or
receipt of the award or when obligation
becomes due and demandable.
2. After the lapse of such time, it may be
enforced by the local trial court pursuant to
the Rules of Court.
3. An amicable settlement reached in case
referred by the Court to the Lupon shall be
enforced by the said Court.
L A W
Motion for Execution Under the KP Law

The disputant/s may file a motion with the
Punong Barangay, copy furnished to the other
disputant/s, for the execution of a final
settlement or award which has not been
complied with.
Sec. 9. Execution of judgments for
money, how enforced.
Levy act by which an officer sets apart or
appropriates a part of the whole of the property
of the judgment debtor for purposes or the
execution sale. The levy on execution shall
create a lien in favor or the judgment creditor
over the right, title and interest of the judgment
debtor in such property at the time of the levy
Garnishment act of appropriation by the
court when property of debtor is in the hands of
third persons garnishment
ATTACHMENT
refers to corporeal
property in the
possession of the
judgment debtor
GARNISHMENT
refers
to
money,
stocks, credits and
other
incorporeal
property which belong
to judgment debtor but
is in the possession or
under the control of a
third person
Remedies of a Third-Party Claimant

1. Summary hearing before the court which
authorized the excution;
2. TERCERIA or third party claim filed with
the sheriff;
3. Action for damages on the bond posted by
judgment creditors; or
5. Independent reinvidicatory action
Note! The remedies are cumulative and may be
resorted to by third party claimant
independently of or separately from the others.
A party or person may be punished for
contempt, if he disobeys such judgment under
Sec. 11 of rule 39, but no indirect contempt
under sec. 9 and 10.
Property Sold on Execution
Remedy against an irregular sale is
MOTION TO VACATE OR SET ASIDE THE
R E M E D I A L
L A W
Page 50 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
SALE to be filed in the court which issued the

writ.
Effect of Judgments or Final Orders

1. Bar by
Judicata)
Punitive Damages
By motion on the same action, the following
shall be liable to pay, in addition to actual
damages, punitive damages in the amount of
P5,000:
1. An officer selling without notice as
prescribed by Sec. 15, Rule 39.
2. A person willfully removing or defacing the
notice posted, if done before the sale or
satisfaction of the judgment.
Redemption of Real Property Sold
The following may redeem:
1. The judgment obligor or his successor in
interest
2. Redemptioner who is a creditor having a
subsequent lien on the property.
Note! Right of redemption may be levied upon
and sold for the satisfaction of another
judgment because it is a property right which
may be sold voluntarily.
Important: Personal properties cannot be the
subject of redemption.
Period to Redeem
L A W
Former
Judgment
(Res
The judgment rendered in the first case is

an absolute bar to the subsequent action since
said judgment is conclusive not only as to the
matters offered and received to sustain that
judgment but also as to any other matter which
might have been offered for that purpose and
which could have been adjudged therein.
2. Conclusiveness of Judgment
This refers to the situation where the
judgment in the prior action operates as an
estoppel only as to the matters actually
determined therein or which were necessarily
included therein. Consequently, since other
admissible and relevant matters which the
parties in the second action could properly offer
are not concluded by the said judgment, the
same is not a bar to or a ground for dismissal of
second action.
Note! It has been held that the rule on
conclusiveness of judgment or preclusion of
issues or collateral estoppel does not apply to
issues of law at least when substantially
unrelated claims are involved.
Requisites of Bar by Prior JudgmentFJM- Identity of PSC
1. As to Judgment Obligor: Within one (1)

year from the date of registration of the
certificate of sale.
2. As to Redemptioner:
a. Within one (1) year from the date of
registration of the certificate of sale; or
b. Within sixty (60) days from the last
redemption by another redemptioner
Note! The period of redemption cannot be
suspended by an action to annul the
foreclosure sale. The court may award an
additional period to redeem under special
circumstances such as when the period has
been interrupted by an action by the judgment
creditor to destroy the right of redemption.
However, financial hardship is not a ground to
suspend it.
1. The formal judgment must be Final;

2. It must have been rendered by a court
having Jurisdiction over the subject matter
and over the parties;
3. It must be a judgment on the Merits;
4. There must be, between the first and second
action:
5. Identity of Parties;
6. Identity of Subject matter; and
7. Identity of Cause of action.
Sec. 48. Effect of Foreign Judgment or
Final Orders:
Provided that
jurisdiction:
the
foreign
tribunal
had
1. In case of judgment against a specific thing,

the judgment is conclusive upon the title
of the thing;
R E M E D I A L
L A W
Page 51 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. In case of a judgment against a person, the

judgment is presumptive evidence of a
right as between the parties and their
successors-in-interest by a subsequent title.
In both instances, the judgment may be
repelled by evidence of want of jurisdiction,
notice, collusion, fraud or clear mistake of
law or fact.
Principle of Processual Presumption
In the absence of proof to the contrary, the
law of a foreign country on a particular matter
of procedure is presumed to be identical and
similar with our law of procedure.
May a domestic judgment be impeached
by evidence of clear mistake of law or
fact?
No. Under the doctrine of res judicata, no
matter how erroneous a judgment may be, once
it becomes final, it cannot be corrected. The
only grounds are lack of jurisdiction, collusion
or fraud.
APPEAL
The right to appeal is neither a natural right
nor a part of due process; it is merely a
statutory privilege, and may be exercised only in
the manner and in accordance with the
provisions of law.
Period to Make an Appeal
1. Notice of Appeal within fifteen (15) days
after notice
2. Record on Appeal within thirty (30) days
after notice
3. Appeal in Habeas Corpus case within
forty-eight (48) hours from
4. Petition for Review to the CTA within
thirty (30) days from notice or after lapse of
period for action by the CIR
L A W
2. Petition for Review. The appeal to the

Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
3. Appeal by Certiorari. In all cases where
only questions of law are raised or involved,
the appeal shall be to the Supreme Court by
petition for review on certiorari in
accordance with Rule 45.
Where Multiple Appeals Allowed
1. Special proceedings
2. Actions for recovery or property with
accounting
3. Actions for partition of property with
accounting
4. Special civil actions of eminent domain
5. Foreclosure of mortgage
6. Judgment for or against one or more several
defendants, leaving the action to proceed
against the others when allowed by the
court
Note! Multiple appeals are allowed in one case
to enable the rest of the case to proceed in the
event that a separate and distinct issue is
resolved by the court and held to be final.
In criminal cases in which the penalty
imposed is death or life imprisonment, the
appeal to the Supreme Court is by ordinary
appeal on both questions of fact and law.
However, in People vs. Mateo (G.R. Nos.
147678-87, July 7, 2004 and A. M. 04-9-05-SC,
Sept. 14, 2004), such cases shall be
appealed to the Court of Appeals for
intermediate review.
RTC under the memorandum issued by
the SC, has jurisdiction over- intracorporate disputes and rehabilitation of
corporation.
Modes of Appeal
Material Data Rule; Effect of Absence
1. Ordinary Appeal. The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing
a notice of appeal with the court which
rendered the judgment or final order
appealed from and serving a copy thereof
upon the adverse party.
Under this rule, the record on appeal should

contain data as will show that the appeal was
perfected on time. Failure of the record on
appeal to show on its face that the appeal was
perfected within the period fixed by the rules is
a ground for dismissal. (Rivera vs. CA, GRN
141863, 405 SCRA 63)
R E M E D I A L
L A W
Page 52 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Material Dates
There are three (3) material dates that must
be stated in a Petition for Certiorari brought
under Rule 65:
1. Date when notice of the judgment or final
order or resolution was received;
2. Date when the motion for new trial or
reconsideration was filed;
3. Date when notice of denial thereof was
received. (Lapid vs. Laurea, 393 SCRA 277)
Principle of Residual Jurisdiction
The perfection of an appeal to the appellate
court does NOT altogether operate to deprive
the trial court of the authority to act with
reference to matters not relating to the subject
matter of, or affecting the appeal.
L A W
No motion for extension of time to file a

motion for new trial or reconsideration shall be
allowed.
How to Appeal
1. File a notice of appeal with the trial court.
2. Notice of appeal must indicate:
a. parties
b. judgment or final order appealed from
c. material date showing timeliness of
appeal
3. A copy served on the adverse party.
4. Payment in full of docket fees and other
lawful fees
Sec. 4. Perfection of Appeal; effect
thereof.
1. Notice of appeal
exercise
A partys appeal is perfected as to him upon

the FILING of the notice of appeal in due time.
1. to issue orders for the protection and

preservation of the rights of the parties
which do not involve any matter litigated by
the appeal;
2. to approve compromises offered by the
parties prior to the transmittal of the record
on appeal to the appellate court; and
3. to permit the prosecution of paupers
appeals.
The court loses jurisdiction over the case

upon:
a. Perfection of the appeal filed in due
time; and
b. Expiration of the time to appeal by the
other parties
The trial
jurisdiction:
court
may
still
2. Record on Appeal
A partys appeal is perfected as to him upon
the APPROVAL of the record on appeal filed in
due time.
RULE 40
APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL
COURTS
Mode of Appeal Notice of Appeal within
fifteen (15) days from receipt of decision.
After an appeal to the RTC has been
perfected, the MTC loses its jurisdiction over
the case.
The court loses jurisdiction ONLY over the

subject matter upon:
a. Approval of the records on appeal filed
in due time; and
b. Expiration of the time to appeal of the
other parties
RULE 41
APPEAL FROM THE
REGIONAL TRIAL COURTS
The Summary Rules no longer apply when

the case is on appeal.
Sec. 1. Subject of Appeal

When Period to Appeal Interrupted
The following may not be subject of appeal:
The period to appeal shall be interrupted by
a timely motion for new trial or reconsideration.
1. Order denying Motion for New Trial or

reconsideration
2. Order denying a Petition or Motion for
Relief
R E M E D I A L
L A W
Page 53 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
3. Interlocutory order
4. Order disallowing or dismissing an appeal
5. Order denying a Motion to Set Aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any ground vitiating
consent
6. Order of Execution
7. Judgment or final order for or against one
or more several parties or in separate claims
while the main case is pending, UNLESS the
court allows an appeal
8. Order dismissing an action without
prejudice
Remedy Where Appeal Not Allowed
A party may file a Special Civil Action of
Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or mandamus if there is no
performance of duty.
Interlocutory Order An order which does
not dispose of the case but leave something else
to be done by the trial court on the merits of the
case.
RULE 42
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS O THE
COURT OF APPEALS
L A W
Requirements
1. Petition must be filed in seven (7) copies
with the original copy intended for Court of
Appeals
2. Payment of docket and other lawful fees
3. Deposit for costs
4. Proof of service of the petition
5. Contents of petition must specify:
a. names of parties, without impleading
the court
b. material dates
c. errors of fact and/or law
d. duplicate originals or certified true and
correct copies of the judgment or final
order
e. certification of non-forum shopping
Note! Failure to comply with the foregoing
requirements shall be sufficient ground for the
dismissal of the petition.
Perfection of Appeal by Petition for
Review
1. Upon its timely filing; and
2. Payment of docket and other lawful fees;
The RTC loses its jurisdiction over the case
upon the perfection of the appeal filed in due
time and the expiration of the time to appeal of
the other parties.
A party desiring to appeal from a decision of

the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a
verified petition for review with the Court of
Appeals within fifteen (15) days from notice of
the decision sought to be reviewed or of the
denial of petitioners motion for new trial or
reconsideration filed in due tike after judgment.
Upon proper motion and the payment of the
full amount of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the Court of
Appeals may grant an additional period of
fifteen (15) days only within which to file the
petition for review. No further extension shall
be granted except for the most compelling
reason and in no case to exceed fifteen (15)
days.
Effect of Appeal
Rule: The appeal shall not stay the award,
judgment, final order or resolution sought
to be reviewed.
Exception: When the Court of Appeals shall
direct otherwise upon such terms as it ay
deem just.
RULE 43
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
AGENCIES TO THE CA
RA 9282 has expanded the jurisdiction of
the Court of Tax Appeals and elevated its rank
to the level of a collegiate court with special
jurisdiction. Hence, the CTAs decision is no
longer appeallable to the CA. The appeal to the
CTA shall be by petition for review under a
procedure analogous to that provided for under
Rules 42 and 43 of the Rules of Court. However,
R E M E D I A L
L A W
Page 54 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
it is not governed by the technical rules of

evidence. Appeals from the decisions or
resolution of the CTA En Banc to the Supreme
Court shall be by a verified petition for review
on certiorari.
Judgments and final orders or resolutions of
the NLRC are reviewable by the COURT OF
APPEALS in an original action for certiorari
under Rule 65 (St. Martin Funeral Home vs.
NLRC, Sept. 16, 1998).
L A W
Brief
ordinary appeals
filed within 45 days

contents specified by
Rules
Mode of Appeal; Requirements

The appeal shall be by a verified petition for
review with the same requirements under Rule
42 and their non-compliance shall be sufficient
ground for its dismissal
Memorandum
certiorari, prohibition,
mandamus, quo
warranto and habeas
corpus cases
within 30 days
shorter, briefer, only
one issue involved - no
subject index or
assignment of errors
just facts and law
applicable
RULE 45
APPEAL BY CERTIORARI TO
THE SUPREME COURT
Grounds for Dismissal of Appeal
A party desiring to appeal by certiorari from

a judgment or final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Courts or
other courts whenever authorized by law, may
file with the Supreme Court a verified petition
for review on certiorari. The petition shall raise
only questions of law which must be distinctly
set forth.
1. Any unauthorized alteration, omission or

addition in the approved record on appeal.
2. Failure of the appellant to comply with his
duty to file his brief within 45 days, or in
special civil actions, to file his memorandum
within a non-extendible period of 30 days
from notice of the clerk of court that all the
evidence are attached to the record.
3. Failure of the appellant to make specific
assignment of errors in his brief or page
references to the record as required in this
section.
The petition shall be filed within fifteen (15)

days from notice of the judgment or final order
or resolution appealed from, or of the denial of
the petitioners motion for new trial or
reconsideration filed in due time after notice of
judgment. On motion duly filed and served,
with full payment of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the
Supreme Court may for justifiable reasons grant
an extension of thirty (30) days only within
which to file the petition.
Extension of Time for Filing Briefs
Questions of Fact
Rule: Extension of time for the filing of briefs

will not be allowed.
1. Whether certain items of evidence should be

accorded probative value or weight, or
rejected as feeble or spurious.
2. Whether or not the proofs on one side or the
other side are clear and convincing and
adequate to establish a proposition in issue.
3. Whether or not the body of proofs presented
by a party, weighed and analyzed in relation
to contrary evidence submitted by adverse
party, may be said to be strong, clear and
convincing.
4. Whether or not certain documents
presented by one side should be accorded
PROCEDURE IN THE COURT

OF APPEALS
RULE 44
ORDINARY APPEALED CASES
Exception: It may be allowed for good and

sufficient cause, and only if the motion for
extension is filed before the expiration of
the time sought to be extended.
Questions that may be Raised on Appeal
Questions of fact and law may be raised.
Purely legal issues cannot be raise.
R E M E D I A L
L A W
Page 55 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
full faith and credit in the face of protests as

to their spurious character by the other side;
whether or not inconsistencies in the body
of proofs of a party are of such gravity as to
justify refusing to give said proofs weight.
Question of Law vs. Question of Fact
L A W
certain state of facts, and there is a question of

fact when the doubt or difference rises as to the
truth or falsehood of facts.
One test is whether the appellate court can
determine the issue raised without reviewing or
evaluating the evidence, in which case it is a
question of law, otherwise, it will be a question
of fact.
A question of law exists when there is a

doubt or controversy as to what the law is on a
Certiorari as a Mode of Appeal

(Rule 45)
The petition is based on questions of
law which the appellant desires the
appellate court to resolve.
Involves the review of the judgment,
award or final order on the merits.
Must be made within the reglementary
period for appeal.
Stays the judgment, award or order
appealed for.
The petitioner and respondent are the
original parties to the action, and the
lower court or quasi-judicial agency is
not to be impleaded.
The prior filing of a motion for
reconsideration is not required,
The appellate court is in the exercise of
its appellate jurisdiction and power of
review
Certiorari as an Original Special Civil Action

The petition raises the issue as to whether the lower court
or quasi-judicial agency raises the issue as to whether it
acted without or in excess of jurisdiction or with grave
abuse of discretion.
The original action for certiorari may be directed against
an interlocutory order of the court prior to appeal from
the judgment or where there is no appeal r any other
plain speedy or adequate remedy.
May be filed not later than sixty (60) days from notice of
judgment, order or resolution sought to be assailed.
Unless a writ of preliminary injunction or a temporary
restraining order shall have been issued, does not stay the
challenged proceeding.
The parties are aggrieved party against the lower court or
quasi-judicial agency and the prevailing parties, who
thereby respectively become the petitioner and
respondents.
A motion for reconsideration is a condition precedent,
subject to certain exceptions.
The higher court exercises original jurisdiction under its
power of control and supervision over the proceedings of
lower courts.
Conclusiveness of Facts
Rule: The findings of fact of the CA are final
and conclusive and cannot be reviewed on
appeal to the SC.
Exceptions:
1. When the finding is grounded entirely on
speculations, surmise or conjecture;
2. When inference made is manifestly absurd,
mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of discretion in
the appreciation of facts;
5. When the findings of fact are conflicting;

6. When the CA in making its findings went
beyond the issues of the case and the same
is contrary to both the admissions of
appellants and appellees;
7. When the findings of fact of the CA are at
variance with those of the trail court, the SC
has to review the evidence in order to arrive
at the correct findings based on the record;
8. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
9. When the facts set forth in the petition as
well as in the petitioners main and reply
briefs are not disputed by the respondents;
R E M E D I A L
L A W
Page 56 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
10. The findings of fact of the CA is premised on

the supposed evidence and is contradicted
by the evidence on record;
11. When
certain
material
facts
and
circumstances have been overlooked by the
trial court which, if taken into account,
would alter the result of the case in that they
would entitle the accused to acquittal.
RULE 46
ORIGINAL CASES
(CA and SC)
To What Actions Applicable
Under B.P. Blg. 129, the CA has original
jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus and quo
warranto, and auxiliary writs or processes,
whether or not they are in aid of its appellate
jurisdiction, and it has exclusive original
jurisdiction over actions for annulment of
judgments of Regional Trial Courts.
L A W
obtained through fraud or collusion and that he

would be adversely affected thereby.
The annulment may be based only on the
ground of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be valid if it was
availed of, or could have been availed of, in a
motion for new trial or petition for relief, raised
within reasonable time or until barred by
laches.
If based on extrinsic fraud, the action must
be filed within four (4) years from its discovery;
and if based on lack of jurisdiction, before it is
barred by laches or estoppel.
If the annulment is based on lack of
jurisdiction, the original action may be refiled.
If based on extrinsic fraud, the court may, on
motion, order the trial court to try the case.
Summary of Remedies Against Judgment
Jurisdiction Over Person, How Acquired

The court acquires jurisdiction:
1. Over the petitioner by filing of the petition.
2. Over the respondent by the service on the
latter of the order or resolution indicating
the courts initial action on the petition and
NOT by the service on him of the petition,
or by his voluntary appearance.
1.
2.
3.
4.
5.
6.
Motion for New Trial

Inherent power to amend and control
Petition for relief from judgment
Certiorari, prohibition and mandamus
Direct action for annulment of judgment
Quo warranto, if the claim is that the judge
was no longer in office
RULE 48
PRELIMINARY CONFERENCE
(CA and SC)
Effect of Failure to File Comment

The case may be decided on the basis of the
record, without prejudice to any disciplinary
action which the court may take against the
disobedient party.
RULE 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Annulment of judgment is a remedy in law
independent of the case where the judgment
sought to be annulled was rendered and may be
availed of though the judgment has been
executed.
A person who is not a party to the judgment
may sue for its annulment provided he can
prove that the same was
Period to Conduct
At any time during the pendency of a case,
the court may call the parties and their counsel
to a preliminary conference for the purposes
enumerated under Sec. 1, Rule 48.
In the CA, this procedural device may be
availed of not only in original actions but also in
cases on appeal wherein a new trial was granted
on the ground of newly discovered evidence.
The CA can act as a trier of facts, hence the
preliminary conference authorized is a
convenient adjunct to such power and function.
Binding Effect of the Results of the
Conference.
R E M E D I A L
L A W
Page 57 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Rule: The resolution embodying all the actions

taken therein, the stipulations and admissions
made, and the issues defined shall control the
subsequent proceedings in the case.
Exception: If within five (5) days from notice
thereof, any party shall satisfactorily show valid
cause why the same should not be followed.
RULE 49
ORAL ARGUMENT
(CA and SC)
L A W
the wrong mode of appeal shall be a ground for

dismissal.
A resolution of the Court of Appeals
dismissing the appeal and remanding the case
to the trial court for further proceedings is
merely interlocutory, hence a motion for its
reconsideration filed a year later may be
entertained and granted
Sec. 3. Withdrawal of Appeal.
When Allowed by the court motu proprio or

upon motion of party, the court may hear the
parties in oral argument on the merits of the
case, or on any material incident.
Hearing not Required Motions in the SC
and the CA do not contain notices of hearing as
no oral arguments will be heard in support
thereof; and if the appellate court desires to
hold a hearing thereon, it will itself set the date
with notice to the parties.
Period to Object The adverse may file
objections to the motion within five (5) days
from service, upon the expiration of which such
motion shall be deemed submitted for
resolution.
RULE 50
DISMISSAL OF APPEAL
Court of Appeals may dismiss the appeal

outright even without motion. The remedy if
dismissed for improper appeal is to refile it in
the proper forum but has to be within the
prescribed period.
Dismissals of Action Without Trial which
are Considered Dismissal on the Merits
1. Two dismissal rule under Sec. 1, Rule 17.
2. Dismissal for failure to prosecute, to appear
at trial, or to comply with rules or order of
the court under Sec. 3, Rule 17 and operates
as an adjudication on the merits unless
otherwise ordered by the court.
3. Judgment on the pleadings, summary
judgment,
judgment
by
confession,
judgment by compromise operates as
adjudication on the merits.
4. Dismissal on the ground of non-compliance
with Circular No. 1-88 had the effect of
resolving the issues raised therein.
Sec. 1. Grounds for dismissal of appeal.

RULE 51
JUDGMENT
(CA and SC)
With the exception of Section 1 (b) dismissal

of an appeal is directory and not mandatory.
Other grounds for the dismissal of an
appeal:
a. by agreement of the parties, as where the
case was amicably settled by them
b. where the appealed case has become moot
or academic
c. where the appeal is frivolous or dilatory
Sec. 2. Dismissal of improper appeal to
the Court of Appeals.
No transfer of appeals, erroneously taken to
it or to the Court of Appeals, whichever of these
tribunals has appropriate appellate jurisdiction,
will be allowed. Also, elevating such appeal by
Law of the Case the opinion delivered on a

former appeal. It means that whatever is once
irrevocably established, as the controlling legal
rule or decision between the same parties in the
same case, continues to be the law of the case,
whether correct on general principles or not, so
long as the facts on which such decision was
predicated continue to be the facts before the
court.
But this rule does not apply to resolutions
rendered in connection with the case wherein
no rationale has been expounded on the merits
of that action.
Sec. 6. Harmless Error
R E M E D I A L
L A W
Page 58 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The court, at every stage of the proceeding,

must disregard any error or defect which does
not affect the substantial rights of the parties
such as error in admission or exclusion of
evidence or error or defect in the ruling or
order.
A second motion for reconsideration is

prohibited.
Stay of Execution The pendency of a
motion for reconsideration filed on time shall
stay the execution of the judgment or final
resolution sought to be reconsidered, unless the
court, for good reasons, shall otherwise direct.
Sec. 8. Questions that may be decided
RULE 53
NEW TRIAL
Only errors claimed and assigned by a party

will be considered by the court, except errors
affecting its jurisdiction over the subject matter.
To this exception has now been added errors
affecting the validity of the judgment appealed
from or the proceedings therein.
Filing of a motion for new trial is at any time

after the perfection of the appeal from the
decision of the lower court and before the Court
of Appeals loses jurisdiction over the case
Even if the error complained of by a party is

not expressly stated in his assignment of errors
but the same is closely related to or dependent
on an assigned error and properly argued in his
brief such error may now be considered by the
court.
PROVISIONAL REMEDIES
1.
2.
3.
4.
5.
RULE 52
MOTION FOR RECONSIDERATION
(CA and SC)
INJUNCTION
Directed against a party in the action
Jurisdiction of the court is not involved
May be the main action itself or just a
provisional remedy
REPLEVIN
May be sought only when the principal
action is recovery of personal property
Can be sought only when defendant is in
actual possession of the property
Only extends to personal property capable
of manual delivery
Cannot be availed of when property is in
custodia legis
Available before defendant answers
Bond is double the value of the property
L A W
Preliminary Attachment (Rule 57)

Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)
PROHIBITION
Directed against a court, tribunal or a person
exercising judicial or quasi-judicial powers
Involves jurisdiction of the court on the ground that
it acted without or in excess of jurisdiction
Always the main action
ATTACHMENT
Available even if recovery of property is only
incidental to the relief sought
May be resorted to even if the property is in
possession of a third person
Extends to all types of property whether real,
personal or incorporeal
Can be availed of even if property is in custodia legis
From commencement but before entry of judgment
Fixed by the court
R E M E D I A L
L A W
Page 59 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Rule 57
PRELIMINARY ATTACHMENT
L A W
be adjudged by reason of the attachment. (Sec.

4, Rule 57)
Purposes:
To seize the property of the adverse
party as security for purposes of
satisfying the judgment that may be
recovered in cases falling under Rule 57,
sec.1.
For the court to acquire jurisdiction over
the action through actual or constructive
seizure of the property in cases where
the creditor cannot be personally served
with summons.
Classification of Attachment Based on
Availability and Effects
1. Preliminary resorted to at the
commencement of the action or at any time
before entry of judgment, for the temporary
seizure of the adverse partys property.
2. Final or levy upon execution- available
after judgment in the main action has
become executory.
When may preliminary attachment be
sought?
It may be sought at the commencement of
the action and before entry of the judgment.
Where: The Courts where the action is
pending, the CA or the SC even if the action
pending before the lower court.
Requirements for application writ of
preliminary attachment:
1. Affidavit which must be contained the
following:
That a sufficient cause of action exists
The case falls under Sec. 1, Rule 57.
No other sufficient security for the claim
exists.
The amount due or the value of the property
the applicant is entitled to recover is equal
to the sum which the order or attachment is
granted.
Preliminary Attachment is Discharge in

the following instances:
1. When the debtor has posted a counter-bond
or has made the requisite cash bond (Sec.
12).
2. When the case does not fall under Sec. 1 of
this rule, or when the affidavit and/or the
bond filed are defective or insufficient
(Sec.3), or when the attachment was
improperly or irregularly issued (Sec. 13).
3. When the attachment is excessive, but the
discharge shall be limited to the excess (Sec.
13).
4. When the attached property is exempt from
execution hence exempt from preliminary
attachment.
5. When judgment is rendered against the
attaching creditor.
Sec. 14. Proceedings where property
claimed by third person.
Rule: The sheriff shall not be bound to keep the
property under attachment when a third
party serves his affidavit of title or right over
the property in question to the sheriff and a
copy thereof to the attaching party,.
Exception: When the attaching party files a
bond approve by the court to indemnify the
third-party claimant in a sum not less than
the value of the property levied upon.
Within the period of 120 days from the
date of the filing of the bond, claim for damages
for the taking or keeping of the property may be
enforced against the bond.
Government is not Required to Give
Bond
A BOND is not required when the writ of
attachment is issued in favor of the Republic of
the Philippines, or any officer duly representing
it.
2. Bond of the applicant
Sec. 20. Claim for damages on account of

improper, irregular or excessive
attachment.
Purpose: The bond executed to the adverse

party in the amount fixed by in the court
responds for the damages and costs, which may
Application for damages under this section

must be filed by the owner of the property
attached before the trial or before appeal is
R E M E D I A L
L A W
Page 60 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
perfected or before judgment becomes

executory. Due notice must be given to the
attaching creditor or his surety or sureties.
DAMAGES may be awarded only after
proper hearing and shall be included in the
judgment on the main case.
If judgment rendered by the appellate court
is favorable to the party AGAINST whom the
attachment was issued, the owner may claim
damages sustained during the pendency of the
appeal by filing an application before the
judgment of the appellate court becomes
executory.
Rule 58
PRELIMINARY INJUNCTION
Injunction a judicial writ, process or
proceeding whereby a party is ordered to do or
refrain from doing a particular act or to require
the performance of a particular act.
Purpose: To preserve status quo by retraining
action or inference or by furnishing preventive
relief.
L A W
1. Applicant is entitled to the relief being

sought.
2. Commission,
continuance,
or
nonperformance of the act or acts work injustice
to the applicant.
3. That the acts or act wants to be enjoined
violates applicants rights subject of the
action or proceeding.
How may Injunction be Applied
1. File a verified application and applicants
bond.
2. If the application is included in the
complaint or in any initiatory pleading, the
adverse party should be served with
summons together with the copy of the
initiatory pleading and the bond.(Sec. 4)
Grounds for Objection or Dissolution of
Injunction:
1. Insufficiency of the complaint.
2. Posting of counter-bond by the defendant
showing that he would sustain irreparable
damage while applicant can be fully
compensated.
3. When the bond posted by the applicant is
insufficient. (Sec. 7)
Kinds of Injunction:
1. Preliminary Injunction an order
granted at any stage of an action prior to the
judgment or final order therein.
.
Final Injunction one issued in cases

permanently restraining the defendant or
making
the
preliminary
injunction
permanent.
3. Preventive Injunction requires a

person to refrain from doing an act.
4. Mandatory Injunction requires the
performance of a particular act.
When to Apply: It may be applied any time
prior to the judgment or order.
Where: Only in the court where the action is
pending.
Grounds for Issuance of Preliminary
Injunction:
Rule 59
RECEIVERSHIP
Purpose: To place the property subject of a
proceeding under the control of a third party
(receiver)
for
its
preservation
and
administration litis pendentia.
Receiver a person appointed by the court on
behalf of al the parties in an action for the
purpose of preserving the property and to
protect the rights of the parties under the
direction of the court.
When to Apply: The applicant may avail this
remedy by filing a verified application including
the bond at anytime prior to the satisfaction of
judgment.
Where: Court where the action is pending, the
CA or SC even if the action is pending before the
lower court; Appellate Court may allow
application for receivership be decided in the
court of origin.
R E M E D I A L
L A W
Page 61 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Requisites for Granting Application
Where: In the court where the action is

pending.
1. The applicant must have an interest in the

property subject of the action or proceeding.
2. That the appointment of a receiver is the
most convenient way to preserve the
property in litigation.
3. The subject property must be in danger of
being loss or removed or materially injured.
Grounds for Denial of Receivership
1. When there no necessity or the appointment
sought is without sufficient cause.
2. If a sufficient bond has been filed by the
adverse party, which would answer for
damages.
3. Insufficiency of the applicants bond.
4. Insufficiency of the receivers bond. (Sec. 5)
Rule 60
REPLEVIN
Purpose: To recover
personal property.
the
L A W
Requisites for Granting Application

1. Applicant is either the owner of the property
subject of the action or entitled to the
possession of the same.
2. That the adverse party wrongfully detained
the subject property.
3. That property is not taken from a tax
assessment or a fine pursuant to law.
When is defendant entitled to the return
of the property taken under a writ of
Replevin?
1. When the defendant posts a re-delivery
bond.
2. Insufficiency of plaintiffs bond.
3. Property has not been delivered to plaintiff
for any reason.
Note! amount of the counter-bond should be
double the value of the property.
possession
of
Rule 61
SUPPORT PENDENTE LITE
Replevin may be availed of under the

following circumstance:
1. When the principal relief sought in the
action is the recovery of possession of
personal property.
2. It can be sought only when the defendant is
in actual or constructive possession of the
property involved.
3. It is also available even if the property is not
being concealed, removed or disposed of.
When to File:
Replevin should be filed
at the commencement of the action but before
answer is filed.
Purpose: To oblige adverse party to give

support during the pendency of the action in
court.
Note! It is available not only to the plaintiff
BUT also to any party in the action who may
have grounds to apply for the same. However,
the applicant must show that he is entitled to
receive support. That, unlike other provisional
remedies, NO BOND is required in
application for support pendente lite.
When to Apply: At the commencement of the
action or at any time prior to the judgment or
final order.
R E M E D I A L
L A W
Page 62 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
C R I M I N A L
A I D
I N
R E M E D I A L
c. Should be liable for acts connected with

the introduction into these Islands of
the obligations and securities mentioned
in the proceeding number;
d. While being public officers or
employees, should commit an offense in
the exercise of their functions; or
e. Should commit any of the crimes against
national security and the law of nations,
defined in Title One, Book Two of this
Code. (Art. 2 of the Revised Penal
Code).
P R O C E D U R E
Preliminary Consideration
CRIMINAL JURISDICTION
is the power of the tribunal to hear and
try a particular offense and impose the
punishment for it (People vs. Mariano,
71 Phil. SCRA 605).
CRIMINAL
PROCEDURE
Method fixed by law
for the apprehension
and prosecution of a
person
who
is
accused of a crime
and
for
his
punishment,
whenever convicted
JURISDICTION
Deals with the power
of the courts in the
real and substantive
sense
CRIMINAL LAW
Branch of law which
declares what acts are
classified as crimes,
and prescribes the
punishment
for
committing them
PROCEDURE
Deals with the means
by
which
such
powers are put into
action or the means
by which the power
of the courts are
made
effective.
(Manila
Railroad
Co. vs. Attorney
General, 20 Phil. 523
REQUISITES FOR A VALID EXERCISE

OF CRIMINAL JURISDICTION:
1. The offense is one which the court is by law
authorized to take cognizance of
2. The offense must have been committed
within its territorial jurisdiction.
EXCEPTION:
a. Should commit an offense while on
Philippine ship or airship;
b. Should forge or counterfeit any coin or
currency note of the Philippine Islands
or obligations and securities issued by
the Government of the Philippine
Islands;
L A W
3. The person charged with the offense must

have been brought to its presence for trial,
forcibly by warrant of arrest or upon his
voluntary submission to the court
JURISDICTION
OVER THE
SUBJECT
MATTER
1. Derived from the
law. It can never be
acquired solely by
consent
of
the
accused.
2. Objection that the
court
has
no
jurisdiction of the
subject matter may
be made at any stage
of the proceeding,
and the right to make
such objection is
never waived.
DETERMINATION
JURISDICTION:
JURISDICTION
OVER THE
PERSON OF THE
ACCUSED
1. May be acquired
by consent of the
accused or by waiver
of objections.
2. If he fails to make
his objection in time,
he will be deemed to
have waived it.
OF
CRIMINAL
1. Determined by the allegations in the

complaint or information not by the results
of proof or by the trial courts appreciation
of the evidence presented.
2. Determined by the law in force at the time
of the institution of the criminal action.
Once vested, it cannot be withdrawn by:
a. A subsequent valid amendment of the
information
b. A subsequent statute amendatory of the
rules of jurisdiction.
R E M E D I A L
L A W
Page 63 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 64 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
5. Post-arrest investigation
6 Preliminary investigation
7. Arraignment and Plea
8. Pre-trial
9. Trial
10. Judgment
11. Appeal
Steps in the processing of a criminal

case:
1.
2
3.
4
L A W
Report of the crime

Pre-arrest investigation
Arrest
Booking
CRIMINAL JURISDICTION OF COURTS

Katarungang Pambarangay / Lupong Tagapamayapa
Jurisdiction
Its purpose is to bring together the parties actually residing in the same
city or municipality for amicable settlement.
EXCEPTIONS:
1. Where one of the parties is the government or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or employee and the dispute
relates to the performance of his official functions;
3. Offense punishable by imprisonment exceeding one (1) year or a fine
exceeding Five Thousand Pesos (5, 000.00);
4. Offenses where there is no private offended party;
5. Where the dispute involves real properties located in different cities
or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate Lupon;
6. Dispute involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
7. Such other classes of dispute which the President may determine in
the interest of justice or upon the recommendation of the Secretary of
Justice.
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Trial Courts
Original
Jurisdiction
1. Violations of city or municipal ordinances committed within their

respective territorial jurisdiction;
2. Offenses punishable with imprisonment not exceeding six (6) years
irrespective of the amount of fine, and regardless of other imposable
accessory or other penalties, including the civil liability arising from
such offenses or predicated thereon, irrespective of kind, nature,
value or amount thereof; EXCEPT those falling within the exclusive
original jurisdiction of the Sandiganbayan where the accused are
occupying positions corresponding to salary grade 27 or higher.
3. Offenses involving damage to property through criminal negligence
4. In cases where the only penalty provided by law is a fine of not more
than four thousand pesos (4,000.00)
Summary
Procedure
1. Traffic violations
2. Rental law violations
3. violations of city or municipal ordinances
R E M E D I A L
L A W
Page 65 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
4. All other cases where penalty does not exceed six months and/or fine
of one thousand pesos (1,000.00)
Regional Trial Courts
Original
Jurisdiction
Appellate
Jurisdiction
1. Offenses the imposable penalty for which exceeds 6 years

imprisonment irrespective of fine and not within the exclusive
jurisdiction of any court, tribunal or body EXCEPT those falling
under the exclusive jurisdiction of the Sandiganbayan;
2. Offense where the only penalty provided for by law is a fine which is
more than 4000 but not exceeding 6000, RTC shall have jurisdiction
including offenses committed by public officers and employees in
relation to their office.
1. Cases decided by the Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in their respective
territorial jurisdictions
Family Courts
Exclusive
Original
Jurisdiction
1. Criminal cases where one or more of the accused is below eighteen

(18) years of age but not less than nine (9) years of age, or where one
or more of the victims is a minor at the time of the commission of the
offense; Provided, That if the minor is found guilty, the court shall
promulgate sentence and ascertain in any civil liability which the
accuse may have incurred. The sentence, however shall be suspended
without need of application pursuant to Presidential Decree No. 603,
otherwise known as the Child and Youth Welfare Code.
2. Cases against minors cognizable under the Dangerous Drugs Act, as
amended;
3. Violations of Republic Act No. 7610, otherwise known as the Special
Protection of Children Against Child Abuse, Exploitation and
Discrimination Act, (as amended by RA No. 7658); and
4. Cases of Domestic Violence.
This includes the commission of all forms of abuse, neglect,
cruelty, exploitation, violence, and discrimination and all
other conditions prejudicial to their development.
Sandiganbayan
Exclusive
Original
Jurisdiction
1. Violation of RA 3019, as amended, otherwise known as the Anti-graft

and Corruption Practices Act, RA 1379, and Chapter II, Sec. 2, Title
VII, Book II of the RPC, where one or more of the accused are officials
occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of
the offense:
1.1. Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as grade 27
and higher, of the Compensation and Position Classification Act of
1989 (RA 6758)
1.2. Members of Congress and officials thereof classified as Grade 27
and up
1.3. Members of the Judiciary without prejudice to the provisions of
R E M E D I A L
L A W
Page 66 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
the Constitution
1.4. Chairmen and members of the Constitutional Commissions,
without prejudice to the provisions of the Constitution.
2. Other offenses or felonies whether simple or complex with other
crimes committed by the public officials and employees mentioned in
subsection (a) of this section in relation to their office.
3. Civil and criminal cases filed pursuant to and in connection with EO 1,
2, 14, and 14-A, issued in 1986.
In cases where none of the accuses are occupying positions corresponding
to salary grade 27 or higher, as prescribed in the said RA 6758, or
military and PNP officers mentioned above, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court,
and Municipal Circuit Trial Court shall have exclusive original jurisdiction
(BP 129).
Original
Concurrent
Jurisdiction
and 1. Petitions for the issuance of the writs of mandamus, prohibition,

certiorari, habeas corpus, injunctions and other ancillary writs and
processes in aid of its appellate jurisdiction and over petitions of
similar nature, including quo warranto, arising or that may arise in
cases filed or which may be filed under EO 1, 2, 14, 14-A, issued
in1986.Exception: Petitions exclusive of the Supreme Court.
Exclusive Appellate 1. Final judgments, resolutions, or orders of RTC whether in the exercise
Jurisdiction
of their own original jurisdiction or on their appellate jurisdiction.
Court of Appeals
Original
Concurrent
Jurisdiction
Exclusive
Original
Jurisdiction
Appellate
Jurisdiction
& Mandamus, prohibition, certiorari, habeas corpus, and quo warranto,

and auxiliary writs or processes, whether or not in aid od its appellate
jurisdiction;
Annulment of judgments of RTC
Final judgments, decision, resolutions, orders, or awards of RTC and
quasi-judicial agencies, instrumentalities, boards, or commissions,
except those falling within the appellate jurisdiction of the SC in
accordance of the Constitution, the provisions of BP 129, subparagraph
(1) of the third paragraph and subparagraph (1) of the fourth paragraph
of Sec. 17 of the Judiciary Act of 1948, and those falling within the
jurisdiction of the Sandiganbayan under Sec. 4 PD 1606, as amended
(infra).
Supreme Court
Exclusive
Jurisdiction
Original Petition for issuance of writs of certiorari, prohibition and mandamus

against Sandiganbayan
Appellate Jurisdiction
Appeal by Notice of Appeal

1. From the RTC or SB in all criminal cases in which the penalty
imposed is reclusion perpetua or higher
Automatic Review
R E M E D I A L
L A W
Page 67 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
1. Criminal cases in which the death penalty is imposed by the RTC or

SB, whether or not the accused files an appeal
Appeal by Petition for Review on Certionrari
2. Appeals from CA
3. Appeals from SB on pure questions of law except cases where the
penalty imposed is reclusion perpetua, life imprisonment or death
4. Appeals from the RTC exercising original jurisdiction in the following
cases:
a. If no question of fact is involved and the case involves
i. the constitutionality or validity of any treaty,
executive order or regulation is in question;
ii. the legality of any tax, import, assessment, or toll,
or any penalty imposed thereto;
iii. the jurisdiction of any inferior court is in issue;
b. All cases in which only errors or questions of law are
involved
Section 1. Institution of criminal actions.
It is for the prosecuting officer to determine

whether the evidence at hand is sufficient to
engender a reasonable belief that a person has
committed an offense.
For offenses where a preliminary

investigation is required - by filing the
complaint with the proper officer for the
purpose of conducting the requisite preliminary
investigation.
Exception:
The moment the prosecuting officer finds one to
be liable, it becomes his inescapable duty to
charge him therewith and to prosecute him for
the same.
RULE 110
PROSECUTION OF OFFENSES
Note:
PI is required to be conducted
for an offense where the penalty
prescribed is at least 4 years, 2
months and 1 day without
regard to the fine. (Section1,
Rule 112)
For all other offenses, by filing the

complaint or information directly with the
Municipal Trial Courts and Municipal Circuit
Trial Courts, or the complaint with the office of
the prosecutor.
Effect of institution of the criminal
action
Interrupts the running of the period of
prescription of the offense charged unless
otherwise provided by special laws.
Commencement of Criminal Action
General Rule:
Injunction
Prosecution
to
Restrain
Criminal
General Rule:
Eminent authorities are agreed that, being
vested with public interest, writs of
injunction and prohibition to restrain a
criminal prosecution are generally not
available.
Exceptions:
Where Injunction and prohibition may be
issued by the courts to retrain criminal
prosecution:
a. For orderly administration of justice;
b. to prevent the use of strong arm of the
law in an oppressive and vindictive
manner;
c. to avoid multiplicity of suits;
d. When the acts of the officer are without
or in excess of authority;
e. When the prosecution is under an
invalid law, ordinance or regulation;
f. When double jeopardy is clearly
apparent;
R E M E D I A L
L A W
Page 68 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
g. When the court had no jurisdiction over

the offense;
h. When it is a case of persecution rather
than prosecution;
i. When the charges are manifestly false
and motivated by lust for vengeance;
j. When there is clearly no prima facie case
against the accused and a motion to
quash on that ground has been denied;
k. to afford adequate protection to
constitutional rights;
l. where the statute relied upon its
unconstitutionality or was declared
void; and
m. To prevent the threatened unlawful
arrest of petitioners.
the jurisdiction of the Sandiganbayan but

also to those within the jurisdiction of
regular
courts
(George
Uy
vs.
Sandiganbayan, G.R. No. 105965-70, March
20, 2001).
Section 3. Complaint defined.
Complaint is a sworn written statement
charging a person with an offense, subscribed
by the offended party, any peace officer or other
public officer charged with the enforcement of
the law violated.
Requisites of a complaint:
a. it must be in writing and under oath;
b. it must be in the name of the People of
the Philippines;
c. it must charge a person with an offense;
d. it must be subscribed by the offended
party, by any peace officer or public
officer charged with the enforcement of
the law violated
Remedies of the offended party if the

prosecutor refuses to file an information
a. file an action for mandamus, in case of
grave abuse of discretion
b. lodge a new complaint before the court
having jurisdiction over the offense
c. take up the matter with the Secretary of
Justice in accordance with the Rev.
Administrative Code
d. institute an administrative charges
against the erring prosecutor
e. file criminal action against the
prosecutor with the corresponding civil
action for damages.
Is the prosecutory power of the
Ombudsman exclusive only to cases
cognizable by the Sandiganbayan or
does it extend to cases falling within the
jurisdiction of regular courts?
Answer:
Under R.A. 6770, the Ombudsman, as protector
of the people, is armed with the power to
prosecute erring public officers and employees,
giving him an active role in the enforcement of
laws on anti-graft and corrupt practices and
such other offenses that may be committed by
such officers and employees. The legislature has
vested him with broad powers to enable him
implement his own actions. Recognizing the
importance of this power, the Court cannot
derogate the same by limiting it only to cases
cognizable by the Sandiganbayan. It is apparent
from the history and the language of the present
law that the legislature intended such
power to apply not only to cases within
L A W
Persons who can File a Complaint:

a. Offended party
b. Any peace officer
c. Other public officer charged with the
enforcement of the law violated (e.g.
Internal Revenue Officer for violation of
the NIRC, custom agents with respect to
violations of the Tariff and Customs
Code).
Effect if Complaint is NOT Under Oath
The want of an oath is mere defect of form
which does not affect the substantial rights of
the defendant on the merits.(U.S. vs. Bibal, 4
Phil. 369).
BUT: A sworn written complaint is required if
the offense:
a. is one which cannot be prosecuted de oficio,
or
b. is private in nature, or
c. where it pertains to those cases which need
to be endorsed by specific public officers
(Hernandez vs. Albano, 2 SCRA 607).
Section 4. Information defined.
R E M E D I A L
L A W
Page 69 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Information an accusation in writing

charging a person with an offense, subscribed
by the prosecutor and filed with the court.
Requisites of an information:
a. it must be in writing;
b. it must charge a person with an offense;
c. it must be subscribed by the prosecutor;
and
d. it must be filed in court
COMPLAINT
INFORMATION
1. sworn statement
1. need not be sworn
2. subscribed by the 2. subscribed by the
offended
party,
fiscal
any peace officer
or other officer
charged with the
enforcement
of
the law violated
3. sworn to by the 3. need not be under
person signing it
oath
the
reason
therefore
being
principally that the
prosecuting officer
filing it is charged
with the special duty
in regard thereto and
is acting under the
special responsibility
of his oath of office.
4. it may be filed 4. it is always filed with
either in court or
the court
in the prosecutors
office
Persons authorized to file information:
a. City or Provincial Prosecutors;
b. Assistants of City or Provincial
Prosecutors;
c. Duly appointed special prosecutors; or
d. A lawyer appointed by the Secretary pf
Justice, pursuant to Section 1696 of the
Revised Administrative Code, as
amended, to assist the city fiscal is
authorized to sign informations, make
investigations
and
conduct
prosecutions.
Section 5. Who must prosecute criminal
actions.
L A W
Full Discretion and Control of the

Prosecutor:
General Rule:
All criminal actions either commenced by
direction or by information shall be prosecuted
under the direction of the prosecutor.
When Private Prosecutor may Prosecute:
The private prosecutor may be authorized in
writing by the Chief of the Prosecutor Office or
the Regional State Prosecutor to prosecute the
case subject to the approval of the court in case
of :
1) heavy work schedule of the public
prosecutor;
2) or in the event of lack of public
prosecutors.
Prosecution of Crimes Against Chastity:
1. Concubinage and Adultery only by the
offended spouse, regardless of age
2. Seduction, Abduction and Acts of
Lasciviousness prosecuted exclusively
and successively by the following persons in
this order:
a. by the offended woman
b. by the parents, grandparents or
guardians in that successive order
c. by the State in the exercise of the right of
parens patriae
3. No criminal action for the defamation
which consist in the imputation of
adultery, concubinage, seduction,
abduction, or acts of lasciviousness
can be brought except at the instance of and
upon complaint by the offended party.
BUT the prosecutor may initiate the
proceedings de oficio for the prosecution of
private crime complexed with a public offense.
The Subsequent Marriage between the
offended party and the accused extinguishes the
criminal liability or shall remit the penalty
imposed upon him, together with that of the coprincipals, accomplices and accessories,
except:
1) in adultery and concubinage
2) where the marriage was invalid or
contracted in bad faith in order to
escape criminal liability
3) in private libel
R E M E D I A L
L A W
Page 70 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
4) in multiple rape
The desistance of complainant does not bar
criminal prosecution but it operates as waiver of
the right to pursue civil indemnity.
b. To notify the defendant of the criminal

acts imputed to him so that he can duly
prepare his defense.
CONTENTS OF A VALID COMPLAINT OR
INFORMATION:
Where the information has already been filed in

court the court steps in and takes control of the
case until the same is finally disposed of, so that
the fiscal has no more control over it.
a. Name of the accused, including any

appellation or nickname
An error in the name of the accused
is not reversible as long as his
identity is sufficiently established
and this defect is curable at any
stage of the proceedings as the
insertion of the real name of the
accused is merely a matter of form.
b. The designation of the offense
c. The acts or omissions complained
of as constituting the offense
d. The name of the offended party
e. The
approximate
time
of
the
commission of the offense
f. The place wherein the offense was
committed
Extent of Prosecutors Control When

Information has been Filed in Court
Upon the filing of the information in the proper
court and the fiscal finds it proper to conduct a
reinvestigation of the case, the permission of
the Court must be secured.
Section 6. Sufficiency of complaint or
information.
Purpose of the rule:
a. To inform the accused of the nature and
cause of accusation against him.
DEFECTS IN COMPLAINT /
INFORMATION
The rule has been adopted to the
effect that a substantial defect in the
information cannot be cured by
evidence for that would jeopardize
the accuseds right to be informed of
the true nature of the offense he is
being charged with (Ilo vs. CA, 108
Phil.938).
Where there is ambiguity in the
complaint or information, such an
ambiguity must be resolved in favor
of the accused. (People vs. Ng Pek, 81
Phil. 562).
L A W
AMENDMENT
When amendment is allowed:
1. Before the plea covers both substantial and formal
amendment.
2. After the plea covers only matter of form provided:
a. leave of court is obtained
b. such amendment is not prejudicial to the rights of the
accused.
Aggravating circumstance proved during

trial but not alleged in the information
cannot be considered against the
accused in the imposition of penalty.
(People of the Philippines vs. Salvador
Arrojado, G.R. No. 30492, January 31,
2001).
Section 8. Designation of the offense.
Purpose of the Rule:

The seriousness of a criminal prosecution
requires a clear specification of the offense
charged, consistently with the right of the
accused to be informed of the nature and cause
of the accusation against him.
Designation
of
offense
is
NOT
mandatory.
R E M E D I A L
L A W
Page 71 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
1. The real nature of the crime charged in the

information or complaint is determined, not
by its title nor by the specification of the
provision of law alleged to have been
violated but by the facts alleged in the
accusation.
2. An error in specifying the provision of the
law involved is not reversible, as the
allegations in the indictment determine
what offense is charged.
Section 9. Cause of the accusation.
Purpose:
a. to enable a person of common
understanding to know what offense is
intended to be charged;
b. to enable the court to pronounce proper
judgment.
The information or complaint must state or
designate the following whenever possible:
a. The designation given to the offense by
the statute.
b. The statement
of the acts
or
omissions constituting the same, in
ordinary, concise & particular words.
c. The specific
qualifying
and
aggravating circumstances must be
stated in ordinary and concise language.
ALLEGATIONS
DESIGNATION:
PREVAIL
L A W
It is fundamental that every element of which

the offense is composed must be alleged in the
complaint or information, for if the facts
alleged do not constitute an offense within the
terms and meaning of the law upon which the
accusation is based, or if the facts alleged may
all be true and yet constitute no offense, the
indictment is insufficient.
Defect in complaint or information.
It matters not how conclusive and convincing
the evidence of guilt may be. An accused person
cannot be convicted of any offense, unless it is
charged in the complaint or information on
which he is tried, or is necessarily included
therein. Well-settled is the rule that a parson
cannot be convicted of an offense of which he
has not been informed or for a crime higher
than that alleged in the information no matter
how conclusive and convincing the evidence of
guilt may be.
Where the facts does not state all the essential
facts and ingredients that would with sufficient
definiteness and clarity fully apprise the
accused of the nature and cause of the
accusation against him, the accusation cannot
stand (Sugay vs. Pamaran, 41 SCRA 260).
Negative allegations
exceptions.
and
negativing
OVER
Allegations prevail over the designation of the

offense in the information. The accused may
therefore be convicted of a crime more serious
than that named in the title or preliminary part
if such crime is covered by the facts alleged in
the body of the information and its commission
is established by evidence.
Limitation to the above rule:
An accused could not be convicted under one
act when he is charged with a violation of
another if the change from one statute to the
other involves:
a. Change of the theory of the trial
b. Requires the defendant a different
defense
c. Surprises the accused in anyway
Every element must be alleged
The rule is well-settled that where a statute

defining an offense contains an exception in the
enacting clause of the statute which is so
incorporated with the language defining the
offense that the ingredients of the offense
cannot be accurately and clearly described if the
exception is omitted,
that an indictment
founded upon the statute must allege enough to
show that the accused is not within the
exception; but if the language of the statute
defining the offense is so entirely separate from
the exception that the ingredients constituting
the offense may be accurately and clearly
defined without any such reference to the
exception, the pleader may safely omit such
reference, as the matter contained in the
exception is a matter of defense and must be
shown by the accused.
Allegation of aggravating and qualifying
circumstances.
R E M E D I A L
L A W
Page 72 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Under Sections 8 and 9 of this Rule, they must

be BOTH alleged in the information and proved
during the trial for the court to consider the
same. Otherwise, they cannot be considered at
all (People vs. Perreras, 362 SCRA 202).
Section 10. Place of commission of the
offense
Purpose:
1. To inform the defendant of the nature and
cause of the accusation against him
2. To fix the jurisdiction and venue
Allegation
required.
of
specific
place,
NOT
General Rule:
Under the rule it is not required so long as it
appears from the allegation that the offense was
committed, or some of the essential ingredients
thereof occurred at some place, within the
jurisdiction of the court, the requirement is
already satisfied.
Exception:
As the rule itself implies, if the place of the
commission of the offense constitutes an
essential element of the offense as in the crimes
of:
1) Violation of domicile (Art 128, RPC)
2) Penalty on keeper, watchmen and visitor
of an opium den (Art 199, RPC)
3) Trespass to dwelling (Art 280, RPC)
4) Violation of election law, e.g., 30 meter
radius carrying of deadly weapon is
prohibited (Election Code)
Section 11. Date of commission of the
offense
General Rule:
It is NOT required that the complaint or
information state with particularity the place
where the crime was committed and the date of
the commission of the crime.
Exception:
If the place/date of the commission of the
offense constitutes an essential element of the
offense as in the following:
1) Infanticide (Art 255, RPC)
2) Violation
of
Sunday
statutes
(Election Law)
3) Abortion (Art 256-257)
L A W
Section 12. Name of the offended party

General Rule:
An erroneous allegation as to the name of the
person injured shall be deemed immaterial
when the offense can still be ascertained despite
such error.
Exception:
Where the identity of the offended party is an
essential element of the offense charged, an
error in such designation is fatal as in the
following crimes:
1) Slander
2) Robbery with violence against or
intimidation of person
Section 13. Duplicity of offense.
Duplicitous information A complaint or
information is duplicitous if it charges two or
more different offenses.
General Rule:
A complaint or information must charge only
one offense.
Exception:
a. Complex crimes rape with less
physical injuries, robbery with rape.
b. Special Complex crimesrape with
homicide.
c. Continuous
crimes
or
delito
continuado treason, espionage.
d. Crimes susceptible of being committed
in various modes bribery
e. Crimes of which another offense is an
ingredientarson, robbery and physical
injuries are absorbed by rebellion.
Prohibition against duplicity may be
waived
If the accused fails to object to the multiplicity
of the charges made in said information, he may
be found guilty thereof and sentenced
accordingly for as many crimes as are duly
established.
When the information charges more than one
offense, the accused must make a seasonable
objection thereto and, if he does so, no
conviction can be had by virtue of said
R E M E D I A L
L A W
Page 73 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
information. If he fails to object to the

multiplicity of the charges made in said
information, he can be found guilty thereof and
sentenced accordingly for as many crimes as are
duly established and drawn by the evidence on
record.
Section. 14. Amendment or substitution.
L A W
resolving the motion thereof and explaining

the reasons for such disposition.
2. After the plea covers only matter of
form provided:
a. leave of court is obtained
b. such
amendment
is
not
prejudicial to the rights of the
accused.
KINDS OF AMENDMENT
1. Before the plea covers both substantial
and formal amendment provided that any
amendment before plea which:
a. Lessens the gravity of the offense
charged and / or
b. Excludes any of the accused from
the complaint of information
Must be filed with leave of court and the
parties, especially the private complainant,
shall be duly furnished copies of the order
AMENDMENT
1. May involve either formal or
substantial changes
2. Amendment before the plea has
been entered can be effected without
leave of court.
3. Amendment is only as to form,
there is no need for another
preliminary investigation and the
retaking of the plea of the accused.
4. An amended information refers to
the same offense charged in the
original information or to an offense
which necessarily includes or is
necessarily included in the original
charge,
hence
substantial
amendments to the information after
the plea has been taken cannot be
made over the objection of the
accused, for if the original
information would be withdrawn,
the accused could invoke double
jeopardy.
Test as When Rights

Prejudiced by Amendment
of
Accused
The test as to whether the rights of an accused

are prejudiced by the amendment of the
complaint or information is when a defense
under complaint or information, as it originally
stood, would no longer be available after the
amendment is made, and when any evidence
the accused might have would be inapplicable
to the complaint or information.
SUBSTITUTION OF INFORMATION OR COMPLAINT

1. Involves substantial change from the original charge
2. Substitution of information must be with leave of court as
the original information has to be dismissed.
3. Another preliminary investigation is entailed and the
accused has to plead anew to the new information
4. Requires or presupposes that the new information involves

a different offense which does not include or is not necessarily
included in the original charge, hence the accused cannot
claim double jeopardy.
Nature of Amended Information

An amended information is not a new
information because it does not charge another
offense different or distinct from that charged

in the original one. The amended information
supersedes the original.
R E M E D I A L
L A W
Page 74 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Requisites in order for a greater offense

charged be amended into a lesser one:
witnesses to give bail for their appearance at the

trial.
a. A motion to that effect shall be filed by the

prosecution stating the reason why there
will be a downgrading of the nature of the
offense charged, or the exclusion of any of
the accused;
b. The offended party must be furnished a
copy of said motion; and
c. Said motion must be favorably resolved by
the court and copies of said order shall be
furnished to all parties, especially the
offended party.
This is rule applies only when the offense

charged is wholly different from the offense
proved, NOT to cases where:
a. the offense proved is lesser than and is
necessary included in the offense
charged; or
b. the offense proved is more serious than,
but includes the offense charged.
(The above enumeration will
constitute Double Jeopardy).
Limitation to the rule on substitution:
Substantial
Amendments
The
material
or The antithesis of
essential part of a thing. formal.
In
pleadings,
indictments, affidavits
and conveyances, a
matter of form (as
substantial
distinguished from a The
in
a
matter of substance) is matter
or
all that relates to the complaint
mode, form or style of information is the
of
facts
expressing the facts recital
the
involved, the choice or constituting
arrangement of words, offense charged and
and
other
such the determination
particulars,
without of the jurisdiction of
affecting the substantial the court.
validity or sufficiency of
the
instrument
or
without going to the
merits.
Formal
Objection to Amended Information

Objection to the amendment must be
seasonably made, for when the trail was had
upon an information substituted for the
complaint or information without any object by
the defense, the defect is deemed waived. It
cannot be raised for the first time on appeal.
SUBSTITUTION If it appears at any time
before judgment that a mistake has been made
in charging the proper offense, the court shall
dismiss the original a complaint or information
upon the filing of a new one charging the proper
offense in accordance with Section 19, Rule 119,
provided the accused shall not be placed in
double jeopardy. The Court may require the
1. No judgment has yet been rendered.

2. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein.
3. The accused would not be placed in double
jeopardy.
VARIANCE BETWEEN INDICTMENT
AND PROOF (Situations Contemplated)
a. When the offense proved is less serious
than, and is necessarily included in, the
offense charged, in which case the
defendant shall be convicted of the offense
proved.
b. When the offense proved is more serious
than and includes the offense charged, in
which case the defendant shall be convicted
of the offense charged.
c. When the offense proved is neither included
in, nor does it include, the offense charged
and is different there from, in which case
the court should dismiss the action and
order the filing of a new information
charging the proper offense.
Section 15. Place where action is to be
instituted.
VENUE IS JURISDICTIONAL - It cannot be
waived, or changed by agreement of the parties,
or by the consent of the defendant.
General Rule:
Criminal actions must be instituted in the place
where the offense was committed or any one of
its essential ingredients took place.
Exception:
R E M E D I A L
L A W
Page 75 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The Supreme Court, however, in the exercise of

the judicial power vested by the Constitution
upon it and other statutory courts, possess
inherent power and jurisdiction to decree that
the trial and diposition of a case be transferred
to another court within the same judicial region
whenever the interest of justice and truth so
demands, and there by the court that originally
had jurisdiction over the case would not result
in a fair and impartial trial and lead to a
miscarriage of justice (People vs. Gutierrez, 36
SCRA 172).
1. CONTINUING OFFENSE - is one where the
elements of which occur in several places,
2. LOCAL OFFENSE - one which is fully
consummated in one place.
- The venue is in the place where one of
its essential elements was consummated.
3. Piracy The venue of piracy, unlike all
other crimes, has no territorial limits.
4. Libel The action may be instituted at the
election of the offended or suing party in the
province or city:
L A W
exclusion of the other or the rest (Villanueva vs.

Ortiz, 58 O.G., 121, citing cases).
Section 16. Intervention of the offended
party in criminal action.
Role of Offended Party
The right which the rules reserves to the
offended party is that of intervening for the sole
purpose of enforcing the civil liability born of
the criminal act and not of demanding
punishment of the accused (People vs. Orias, 65
Phil. 744).
Intervention by Offended Party
While criminal actions as a rule are prosecuted
under the direction and control of the
prosecutor, however, an offended party may
intervene in the proceeding, personally or by
attorney, especially in cases of offenses which
cannot be prosecuted except at the instance of
the offended party (People vs. Dizon, 44 Phil.
267).
EXCEPTIONS TO THE RULE OF VENUE:

a. Felonies under Art. 2 of the Revised
Penal Code
b. Complex Crimes
- Where the crime charged is a
complex crime, the RTC of any
province in which any one of the
essential elements of such
complex
crime
had
been
committed has jurisdiction to
take cognizance of the offense.
c. Libel:
1) where the libelous article is printed
and first published;
2) if one of the offended parties is a
private individual, where said
private individual actually resides at
the time of the commission of the
offense;
3) if the offended party is a public
official, where the latter holds office
at the time of the commission of the
offense.
While the intervention of the offended party in

a criminal action is generally authorized, it
ceases the moment he waives the civil aspect of
the action, or when he has expressly reserved
the filing of separate civil of the action even if
he has not made the waiver or reservation
adverted to (Gorospe vs. Gatmaitan, 98 Phil.
600).
Whenever an offended party intervenes in the
prosecution of a criminal action, his
intervention is always subject to the direction
and control of the fiscal (Lim Tek Goan vs.
Tatco supra)
Remedy of the offended party in case of
dismissal:
Doctrine of Primary Jurisdiction

Where two or more courts have concurrent
jurisdiction, the first to validly acquire it to the
R E M E D I A L
a. Lodge a new complaint; or

b. Appeal to or take up the matter with the
Secretary of Justice (ibid.), or
c. Institute an administrative charge
against the fiscal, or
d. Institute criminal action against the
prosecuting officer, or
e. File a civil action for damages against
the prosecuting fiscal under Article 27 of
the Civil Code (Zulueta vs. Nicolas, 102
Phil. 944).
L A W
Page 76 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
RULE 111
PROSECUTION OF CIVIL ACTIONS
Section 1. Institution of criminal and civil
actions.
GENERAL RULE: The civil action for the
recovery of civil liability is deemed impliedly
instituted together with criminal action, where
the complainant in the civil case is same
offended party in the criminal action and both
cases arise from the offense or transaction.
EXCEPTIONS:
a. When the offended party waives the right to
recover damages.
b. When the offended party reserves his right
to institute a separate civil action, and takes
his legal chances in a proceeding where he
has full control and direction.
c. When the offended party exercises the right
to maintain a private suit against the
offender by instituting a civil action against
him prior to the filing of the criminal case.
WHEN
MADE:
RESERVATION
SHALL
BE
a. Before the prosecution starts to present

its evidence, and
b. Under circumstances affording the
offended party to a reasonable
opportunity to make such reservation.
The right to recover civil liability arising from
the commission of an offense is a right personal
to the offended party, and may. Therefore, be
waived.
The aggrieved party is entitled to recover from
the offended only once, regardless of the kind or
nature of the action he chose to file against the
latter. If recovery is had in a separate civil suit,
such a fact bars forever recovery in all other
actions, criminal or otherwise.
Rules governing payment of filing fees:
a. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the
payment of the prescribed docket fee that
the vests a trial court with the jurisdiction
over the subject-matter or nature of the
action. Where the filing of the initiatory
L A W
pleading is not accompanied by payment of

the docket fee, the court may allow payment
of the fee within a reasonable time but in no
case beyond the applicable prescriptive or
reglementary period.
b. The same rule applies to permissive
counter-claims, third party claims and
similar pleadings, which shall not be
considered filed until and unless the filing
fee prescribed therefore is paid. The court
may also allow payment of said fee within a
reasonable time but also in no case beyond
its applicable prescriptive or reglementary
period.
Determination of the Amount of Filing
Fees:
a. When the amount of damages, other than
actual is specified in the complaint or
information filed in court, then the
corresponding filing fees shall be paid by
the offended party upon the filing thereof in
court for trial.
b. In any other case, when the amount of
damages is not so alleged in the complaint
or information filed in court, the
corresponding filing fees need not be paid
and shall simply constitute a first lien on the
judgment, except on an award for actual
damages.
c. In BP 22 cases, the civil action is mandatory
included in the criminal action. Filing fee
shall be based on the amount of the check
involved (actual damage). In other cases, no
filing fees shall be required for actual
damages.
Section 2. When separate civil action is
suspended.
General Rule:
The civil action for damages arising from a
felony or a misdemeanor may be brought before
the criminal action for said felony or
misdemeanor, but in case the latter is
instituted, the former shall be suspended
pending final judgment in the criminal action.
Exceptions:
1. In cases of independent civil actions
(Articles 32, 33, 34, and 2176 of the New
Civil Code);
R E M E D I A L
L A W
Page 77 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. In cases where the civil action presents a

prejudicial question (Section 6, Rule III,
infra)
3. In cases where the civil action is
consolidated with the criminal action
(Section 3(a), Rule 111 supra)
4. In cases where the civil action is not one
intended to enforce the civil liability arising
from the offense.
ACQUITTAL IN A CRIMINAL CASE

DOES NOT BAR CONTINUATION OF
THE CIVIL CASE WHERE:
L A W
Where the application for consolidation was

given due course by the trial court, the
evidence presented and admitted in the civil
action, shall be deemed automatically
reproduced in the criminal action, without
prejudice to the right of the prosecution to
cross-examine witnesses presented by the
offended party in the criminal case and of
the parties to present additional evidence.
The consolidated criminal and civil action
shall be tried and decided jointly (Section 2,
par. 2, Rule 111 supra).
Liability of Employer
a. the acquittal is based on reasonable doubt
b. the decision contains a declaration that the
liability of the accused is not criminal but
only civil
c. the civil liability is not derived from or
based on the criminal act of which the
accused is acquitted.
The extinction of the civil liability refers
exclusively to civil liability arising from crime;
whereas, the civil liability for the same act
considered as a quasi-delict is not extinguished
even by a declaration in the criminal case that
the criminal act charged has not happened or
has not been committed by the accused.
An employer may be held subsidiarily liable for

the employees civil liability in a criminal action
when:
a. The employer is engaged in any kind of
industry;
b. The employer committed the offense in
the discharge of his duties; and
c. He is insolvent and has not satisfied his
civil liability (Joaquin vs. Aniceto, 12
SCRA 308).
Section 3. When civil action may proceed
independently.
Rules:
EFFECT OF EXTINCTION OF PENAL

ACTION
General Rule:
Where the same acts or transactions constitute
a crime and also give the right of action for
damages or for penalty, the acquittal of
defendant in the criminal offense is no bar to
the prosecution of the civil case.
Exception:
Where the judgment in a criminal action
contains an express declaration that the basis of
the claimants action did not exist, the latters
action for civil liability is deemed barred
(Albornoz vs. Albornoz, 98 Phil. 785).
Civil
PURPOSE:
To prevent the offended party from recovering
damages twice for the same act or omission.
Before judgment on the merit is rendered in

the civil action, the same may, upon motion
of the offended party, be consolidated with
the criminal action in the court trying the
criminal case (Section 2, Rule 111, supra).
Civil case (on account of fraud) can proceed

independently of the criminal case for estafa
without having to reserve the filing of the
civil action. The reservation and waiver
referred to in Section 1 of Rule 111 pertains
only to the civil action for the recovery of
Consolidation
Action
1. The institution of an independent civil

action against the offender under Arts. 32,
33, 34 and 2176 of the Civil Code may
proceed independently of the criminal case
and at the same time without suspension of
either proceedings.
2. Recovery of civil liability under Arts. 32, 33,
34 and 2176 of the Civil Code arising from
the same act or omission may be prosecuted
separately even without a reservation. The
reservation and waiver herein refers only to
the civil action for the recovery of civil
liability arising from the offense charged.
of
Criminal
and
R E M E D I A L
L A W
Page 78 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
the civil liability arising from the offense

charged.
(DMPI Employee Credit
Cooperative, Inc. vs. Hon. Alejandro M.
Valez, G.R. 129282, November 29, 2001).
resolve the question must be lodged in another

court or tribunal.
Subsidiary liability of an employer for libel

by his employee cannot be proceeded
against thru an independent civil action
under Article 33 of the New Civil Code
pending the resolution of the criminal case.
(International Flavors and Fragrances
(Phil.), Inc. vs. Merlin J. Argos and Jaja C.
Pineda, G.R. No. 130363, (September 10,
2001).
a. The civil action must be instituted prior

to the criminal action.
b. The civil action involves an issue similar
or intimately related to the issue raised
in the criminal action.
c. The resolution of such issue determines
whether or not the criminal action may
proceed.
Section 4. Effect of death on civil actions.

Rules:
BEFORE arraignment - the case shall be
dismissed without prejudice to any civil action
the offended party may file against the estate of
the deceased.
However, the independent civil action instituted
under section 3 of this Rule or which thereafter
is instituted to enforce liability arising from
other sources of obligation may be continued
against the estate or legal representative of the
accused after proper substitution or against said
estate, as the case may be.
AFTER arraignment and during the
pendency of the criminal action extinguishes the civil liability arising from the
delict.
Section 7.
question.
Elements
of
prejudicial
PREJUDICIAL QUESTION - that which

arises in a case, the resolution of which is the
logical antecedent of the issue involved therein,
and the cognizance of which pertains to another
tribunal. It must be determinative of the case
before the court but the jurisdiction to try and
Elements of a prejudicial question:
Resolution of the civil action for specific

performance, recovery of overpayment, and
damages is not a prejudicial question to
warrant the suspension of the trial court of
the criminal cases for violation of B.P. 22.
(Eddie B. Sabandal vs. Hon. Felipe S.
Tongco, G.R. No. 124498, October 5, 2001).
RULE 112
PRELIMINARY INVESTIGATION
Section 1. Preliminary
defined; when required.
Investigation
PRELIMINARY INVESTIGATION - is an
inquiry or proceeding to determine whether
there exists sufficient ground to engender a
well-founded belief that a crime cognizable by
the RTC has been committed and that the
respondent is probably guilty thereof, and
should be held for trial. (Sec. 1, Rule 112).
PURPOSE:
1. To protect the accused from the
inconvenience, expenses and burden of
defending himself in a formal trial unless
the reasonable probability of his guilt shall
have been first ascertained in a fairly
summary proceeding by a competent
officer.
2. To protect the state from having to conduct
useless and expensive trials.
R E M E D I A L
L A W
Page 79 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 80 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The right to preliminary investigation is a

personal right covered by statute and may
be waived.
Absence of preliminary
investigation does not affect the jurisdiction
of the court or invalidate the information if
no objection was raised by the accused.
(Larranaga vs CA, GR No. 130644, Mar 13,
1998)
L A W
Section 4. Resolution of Investigating

Prosecutor and Its Review
Filing of Complaint
Investigating Officer shall, within 10

days from filing, either DISMISS the
complaint or ISSUE SUBPOENA
Remedies of Accused if no PI was

conducted:
If subpoena is issued, respondent shall
file within 10 days from receipt thereof
a COUNTER-AFFIDAVIT and other
supporting documents
1. Refuse to enter a plea upon arraignment

and object to further proceedings upon such
ground
2. Insist on a preliminary investigation
3. File a certiorari, if refused
4. Raise lack of preliminary investigation as
error on appeal
5. File for prohibition
Investigating Officer may conduct a

CLARIFICATORY HEARING (optional)
held 10 days from submission of
counter-affidavit
Section 2. Officers authorized to conduct

preliminary investigation.
Resolution of Investigating Prosecutor (Section 4,

Rule 112)
a. if he finds probable cause, he prepares the
resolution and information
b. if none, he recommends the dismissal of the case
Rules:
Persons authorized to conduct a
preliminary investigation:
a. Provincial or city fiscal and their
assistants
b. [Judges of the MTC and MCTC]
c. National and regional state prosecutors
d. Such other officers as may be authorized
by law such as: the COMELEC,
Ombudsman and PCGG
TAKE NOTE! Beginning October 3, 2005,
first-level court judges shall no longer
accept new cases for preliminary
investigation, as per Supreme Court
Administrative Matter No. 05-8- 26-SC
dated August 30, 2005. Under the new
rules, only provincial or city prosecutors and
their assistants, national and regional state
prosecutors, and other officers authorized by
law shall be authorized to conduct preliminary
investigations. However, Metropolitan Trial
Court, Municipal Trial Court in Cities,
Municipal Trial Court, and Municipal Circuit
Trial Court judges can continue with the
preliminary investigation of pending cases,
which should be terminated not later than
December 31, 2005.
Section 3. Procedure
Review by the city or provincial

prosecutor or the Ombudsman or his
deputy
Review by Secretary of Justice (DOJ Circular No. 70 - 2000 or

the NPS Rule on Appeal) by filing a petition for review within 15
days from receipt of resolution. The pendency of a petition for
review with the DOJ is a ground for suspending the arraignment
but the suspension can only for 60 days
Filing of criminal information in court
[Section 6. When warrant of arrest may

issue
Conditions before the investigating
municipal trial judge can issue a warrant
of
arrest
during
a
preliminary
investigation:
a. Have examined in writing and under oath
the complainant and his witnesses by
searching questions and answers;
R E M E D I A L
L A W
Page 81 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b. Be satisfied that a probable cause exists;

c. That there is a need to place the respondent
under immediate custody in order not to
frustrate the ends of justice
The judge need not personally examine the
complaint and witnesses in the determination
of probable cause for the issuance of the
warrant of arrest. He is only required to:
a. Personally evaluate the report and the
supporting documents submitted by the
prosecutor regarding the existence of
probable cause and, on the basis thereof,
issue a warrant of arrest;
b. If, on the basis thereof, he finds no probable
cause, he may disregard the prosecutors
report and require the submission of
supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the
existence of probable cause.
L A W
In either situation, the MTC is

authorized to issue a warrant of
arrest if there is necessity of placing
the respondent under immediate
custody, in order not to frustrate the
ends of justice, he shall issue a
warrant of arrest.]

Administrative Matter No. 05-8- 26-SC dated
August 30, 2005.
Section 7.
When
accused
arrested without warrant.
TWO SITUATIONS
UNDER THIS RULE:
If the MTC judge found probable cause

but did not believe that the aforesaid
conditions for the issuance of a warrant
of arrest were met, he cannot be
compelled by mandamus to issue the
same.
Remedy:
The provincial fiscal, if he believes that the
accused should be immediately placed in
custody, may file the corresponding information
so that the RTC may issue the necessary
warrant of arrest.
Two types of offenses may be filed in the
MTC for preliminary investigation:
a. a case cognizable by the RTC may be
filed with the MTC for preliminary
investigation;
b. even if it is cognizable by the MTC
because it is an offense where the
penalty prescribed by law is at least four
(4) years, two (2) months and one (1)
day without regard to the fine.
R E M E D I A L
lawfully
CONTEMPLATED
a. When a person is lawfully arrested

without a warrant for an offense
requiring a preliminary investigation
(Sec. 1, Rule 112) and no complaint or
information has yet been filed, he may
ask for a preliminary investigation by
signing a waiver of the provisions of Art.
125 of the RPC in the presence of his
counsel.
b. When the complaint or information was
filed without preliminary investigation,
the accused may, within 5 days from the
time he learns of the filing of the
information, ask for a preliminary
investigation with the same right to
adduce evidence in his favor in the
manner prescribed in this Rule.
Where
the
information
was
amended without a new preliminary
investigation
having
been
conducted, the 5-day period is
computed from the time the accused
learns of the filing of said amended
information.
L A W
Page 82 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 83 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
When Request for PI must be Made:

The request for preliminary investigation
should be made before plea, otherwise the right
to ask for a preliminary investigation shall be
deemed WAIVED.
Section 8. Records
Records of the preliminary investigation shall
not automatically form part of the records of the
case. Courts are not compelled to take judicial
notice thereof. It must be introduced as an
evidence.
Section 9. Cases not requiring a
preliminary investigation nor covered by
the Rule on Summary Procedure.
Procedure to be followed in cases which
do not require preliminary investigation:
a. Evaluate the evidence presented
b. Conduct searching questions or answers
c. Require the submission of additional
evidence
In cases falling under the Rule on
Summary Procedure in special cases, the
filing of affidavits of witnesses with the court is
mandatory.
For cases under the Revised Rules on
Summary Procedure, no warrant shall be
issued except where the accused fails to appear
after being summoned.
[In case when the complaint is filed with
the MTC, the same procedure under Rule 112,
Section 3 shall be observed.
If the judge finds probable cause, he shall issue
a warrant of arrest, or a commitment order if
the accused had already been arrested and hold
him for trial. If the judge is satisfied that there
is no necessity for placing the accused under
custody, he may issue summons instead of
warrant of arrest.
The abovementioned rule does not qualify the
instances wherein summons may be issued
instead of warrant of arrest. Such being the
case, it can be simply said that in all other cases
cognizable by the Municipal Trial Court or
Municipal Circuit Trial Court, the issuance of
warrant for the arrest of the accused is
discretionary on the part of the judge. As long
L A W
as he is satisfied that there is no need for the

necessity of placing the accused under custody,
he may issue summons instead of a warrant of
arrest.]
Administrative Matter No. 05-8- 26-SC dated
August 30, 2005.
The right to preliminary investigation is
substantive, not merely formal or technical.
To deny it would deprive an accused of the
full measure of his right to due process
(Alvarez Aro Yusop vs. Sandiganbayan,
G.R. No. 138859-60, February 22, 2001).
Lack of preliminary investigation NOT a
ground for quashal of the information.
Nowhere in the Revised Rules of Criminal
Procedure, or even the old rules, is there any
mention that this lack is a ground for a
motion to quash. Furthermore, it has been
held that responsibility for the absence of a
preliminary investigation does not go to the
jurisdiction of the court but merely to the
regularity of the proceedings. Instead, the
case, is accused is already undergoing trial,
must be suspended, and the prosecutor
must be directed to conduct the proper
investigation (Alvarez Aro Yusop vs.
Sandiganbayan, G.R. No. 138859-60,
February 22, 2001).
Note! However, under Section 11(c), Rule 116,
upon motion of the proper party, the
arraignment shall be suspended when a
petition for review of the resolution for the
prosecutor is pending at either the DOJor the
Office of the President; provided, that the
period of suspension shall not exceed sixty (60)
days counted from the filing of the petition of
the reviewing office.
RULE 113
ARREST
Section 1. Definition of arrest.
Arrest the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec. 1 Rule 113)
R E M E D I A L
L A W
Page 84 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Modes of Arrest:
a. arrest by virtue of a warrant
b. arrest without a warrant under
statutorily
provided
exceptional
circumstances
L A W
a. By an actual restraint of the person to be

arrested
b. By his submission to the custody of the
person making the arrest
When Arrest is NOT necessary:
Essential Requisites of a Valid Warrant

of Arrest:
1. It must be issued upon probable cause
which must be determined personally by
a judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce
2. The
warrant
must
particularly
describe the person to be seized
Two different proceedings to determine
probable cause for the issuance of
warrant of arrest:
a. Upon filing of an information the Regional
Trial Court may issue a warrant for the
arrest of the accused after conducting the
required proceedings (Section 6(a), Rule 112
of the Rules of Court).
b. If the Municipal Trial Court Judge
conducting the preliminary investigation is
satisfied after an examination in writing and
under oath of the complainant and his
witnesses in the form of searching questions
and answers that a probable cause exists
and that there is a necessity of placing the
respondent under immediate custody in
order no to frustrate the ends of justice, he
shall issue a warrant (Section 6(b) supra).
Arrest is not necessary when the accused

voluntarily appears after a complaint in a
criminal action is filed against him, and he gives
bond for his appearance at any time he may be
called.
Upon arrest, the following may be
confiscated from the person arrested:
a. Objects subject of the offense or used or
intended to be used in the commission of
the crime;
b. Objects which are the fruits of the crime;
c. Those which might be used by the arrested
person to commit violence or to escape;
d. Dangerous weapons and those which may
be used as evidence in the case
Section 4. Execution of warrant.
A warrant of arrest does not become
stale or functus officio unlike a search
warrant which is valid only for 10 days. A
warrant of arrest remains valid until arrest is
effected or the warrant lifted.
Section 5. Arrest without warrant; when
lawful.
LAWFUL WARRANTLESS ARRESTS:
Remedy if WOA was improperly issued

Where a warrant of arrest was improperly
issued, the proper remedy is a petition to quash
it, not a petition for habeas corpus, since the
court in the latter case may order his release but
not enjoin the further prosecution or the
preliminary examination of the accused.
Section 2. Arrest; how made.
Arrest is made by an actual restraint of the
person to be arrested or by his submission to
the custody of the person making the arrest
(Section 2, Rule 113, supra).
Modes of Effecting Arrest:
a. The person to be arrested has committed, is

actually committing, or is attempting to
commit an offense (in flagrante delicto).
b. The peace officer has probable cause to
believe based on personal knowledge of
facts or circumstances indicating that the
person to be arrested has committed a crime
(doctrine of hot pursuit).
c. The person to be arrested is a prisoner who
has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to
another.
d. Where a person who has been lawfully
arrested escapes or is rescued.
R E M E D I A L
L A W
Page 85 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
e. By the bondsman for the purpose of

surrendering the accused.
f. Where the accused attempts to leave the
country without permission of the court.
L A W
Section 7. Method of arrest of officer by

virtue of warrant.
Section 8. Method of arrest by officer
without warrant.
Personal Knowledge of Facts

The indubitable existence of a crime is not
necessary to justify a warrantless arrest and
that personal knowledge of facts in arrests
without warrant must be based upon probable
cause, which means an actual belief or
reasonable grounds of suspicion.
The ground of suspicion are reasonable when,
in the absence of actual belief of the arresting
officers, the suspicion that the person to be
arrested is probably guilty of committing the
offense is based on actual facts, i.e., supported
by circumstances sufficiently strong in
themselves to create the probable cause of guilt
of the person to be arrested.
Section 6. Time of making arrest.
Unlike a search warrant which must be served
only in daytime, an arrest may be made on any
day and at any time of the day or night, even
on a Sunday. This is justified by the necessity of
preserving the public peace.
Sec. 7
Sec. 8
Sec. 9
Method of arrest
The officer shall inform the
person to be arrested the
cause of the arrest and the
fact that the warrant has
been issued for his arrest.
The officer shall inform the
person to be arrested of his
authority and the cause of
the arrest.
The private person shall

inform the person to be
arrested of the intention to
arrest him and the cause of
the arrest.
Section 9. Method of arrest by private

person.
Citizen arrest private person.
is an arrest effected by a
General Rule:
A private person making an arrest should notify
the person arrested of his purpose and acquaint
him with the cause of the arrest.
Exceptions:
a. When the circumstances are such as to
amount to sufficient notice, as where the
arrest is made at the time the offense is
committed or attempted or on fresh
pursuit (6A CJS 112); or
b. When the giving of such information is
largely impracticable, as when he
forcibly resists before the person making
the arrest has opportunity so to inform
him; or
c. When the giving of the information will
imperil the arrest (Section 9, Rule 113,
supra).
Exception to the rule on giving information

1. when the person to be arrested flees;
2. when he forcibly resists before the officer has an pportunity
to inform him; and
3. when the giving of such information will imperil the arrest.
1. when the person to be arrested is engaged in the ommission of
an offense or is pursued immediately its commission;
2. when he has escaped, flees, or forcibly resists before the
officer has an opportunity to so inform him; and
1. when the person to be arrested is engaged in the commission
of an offense or is pursued immediately its commission;
2. when he has escaped, flees, or forcibly resists before the
officer has an opportunity to so inform him; and
R E M E D I A L
L A W
Page 86 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Section 10.
assistance.
Officer
may
A I D
I N
R E M E D I A L
L A W
summon
RULE 114
BAIL
Rules:
Section 1. Bail defined.
1. Only an officer making the arrest is

governed by the rule. It does not cover a
private individual making an arrest.
2. An officer making a lawful arrest may enlist
the assistance of as many persons he deems
necessary to effect the arrest.
REASON: The preservation of the
peace of the society and the
maintenance of public order are not
the functions of peace officers alone;
it is the duty of competent members
of the community, as well.
Bail the security given for the release of a

person in custody of the law, furnished by him
or a bondsman, conditioned upon his
appearance before any court as required under
the conditions specified by the rule. (Sec. 1,
Rule 114)
Section 11. Right of officer to break into

building or enclosure.
Requisites before an officer can break
into a building or enclosure to make an
arrest:
1. That the person to be arrested is or is
reasonably believed to be in said
building;
2. That he has announced his authority
and purpose for entering therein;
3. That he has requested and been denied
admittance.
Section 12. Right to break out of the
building or enclosure to effect release.
As an officer making an arrest may break into a
building when refused entry, he may also break
out there from (if locked in) for the purpose of
liberating himself.
A private person making an arrest cannot
break in or out of a building or enclosure
because only officers are allowed by law to do
so.
A Person in Custody of Law

A person is in the custody of law when he has
been either arrested or otherwise deprived of
his freedom or when he has voluntarily
submitted himself to the jurisdiction of the
court by surrendering to the proper authorities.
An application for admission to bail of a person
against whom a criminal action has been failed
but who is still at large is premature (Guillermo
v Judge Jose Reyes, 240 SCRA 154).
Forms of bail:
a.
b.
c.
d.
corporate surety
property bond
cash deposit
recognizance
A judge may not require, as a condition for the

defendants admission to bail, that the amount
of the bail bond be posted in the form of cash.
When Bail is a Matter of Right:
Before conviction
General Rule:
Except:
Section 13. Arrest after escape or rescue.

Where a person lawfully arrested escapes or is
rescued, any person may immediately pursue
or retake him without a warrant at any time and
in any place within the country. The pursuit
must be immediate.
R E M E D I A L
Every person is bailable
If
charged
with
offenses
punishable by death, reclusion
perpetua, or life imprisonment
and the evidence of guilt is
strong.
It is a mistaken theory for the court to first

require arraignment before the grant of bail
where it is authorized. The ground that if
the accused is released on bail he could, by
being absent, prevent his early arraignment
and thereby delay trial until the
complainant gets tired and lost interest in
the case is of no avail.
L A W
Page 87 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 88 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Section 2. Conditions of the bail;

requirements.
Conditions of Bail:
a. The undertaking shall be effective upon
approval, and, unless cancelled, shall
remain in force at all stages of the case until
promulgation of the judgment of the RTC,
irrespective of whether the case was
originally filed in or appealed to it;
Once the obligation of bail is assumed,
the bondsman or surety becomes in law
the jailer of the accused and is
subrogated to all the rights and means
which the government possesses to
make his control of him effective.
b. The accused shall appear before the proper
courts whenever so required by the court or
these Rules;
c. The failure of the accused to appear at the
trial without justification despite due notice
shall be deemed a waiver of his right to be
present thereat. In such case, the trial may
proceed in absentia;
d. The bondsman shall surrender the accused
to court for execution of the final judgment.
Section 3. No release or transfer except
on court order or bail.
Section 4.
exception.
Bail,
matter
of
right;
Bail is a matter of right:

a. Before or after conviction by the
Metropolitan Trial Court, Municipal Trial
Court, Municipal Trial Court in Cities and
Municipal Circuit Trial Court; and
b. Before conviction by the Regional Trial
Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment
When is bail hearing is not required
A hearing is not necessary where bail is a matter
of right and bail to be granted is based on the
recommendation of the prosecution as stated in
the information or complaint.
When is bail hearing is required
L A W
Regional Trial Court of an offense not

punishable by death, reclusion perpetua, or life
imprisonment wherein the grant of bail is
discretionary, there must be a hearing before a
bail is granted in order to afford the prosecution
the chance to oppose it.
When there is High Probability that
Defendant will Abscond
The existence of a high degree of probability
that the defendant will abscond confers upon
the court no greater discretion than to increase
the bond to such amount as would reasonably
tend to assure the presence of the defendant
when it is wanted, such amount to be subject, of
course, to the proviso that excessive bail shall
not be required.
Right to bail where privilege of habeas
corpus is suspended
Despite the suspension of the privilege of the
writ of habeas corpus, once the case has been
filed in court, the right to bail is a matter which
the court could decide (Nava vs. Gatmaitan, 90
Phil. 172, a vote of five of the nine Justices of
the Supreme Court).
Section 5. Bail, when discretionary.
Bail is discretionary when:
a. The accused is charged with a capital
offense or an offense punishable by
reclusion perpetua or life imprisonment;
but is shall be denied if the evidence of guilt
is strong.
b. Upon conviction by the RTC of an offense
not punishable by death, reclusion perpetua
or life imprisonment, admission to bail is
discretionary.
c. If the court imposed a penalty of
imprisonment exceeding 6 years, bail is
discretionary.
Bail will be DENIED if any of the
following circumstances is present:
1. Recidivism,
quasi-recidivism
or
habitual delinquency or commission of
crime aggravated by the circumstances of
reiteration.
But where there is reduction of bail as

recommended or after the conviction by the
R E M E D I A L
L A W
Page 89 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. Previous escape from legal confinement,

evasion of sentence or violation of the
conditions of bail without valid justification.
3. Commission of the offense while on
probation,
parole
or
under
conditional pardon.
4. Circumstance of the accused or his case
indicate the probability of flight if
released on bail
5. Undue risk of commission of another
crime by the accused during pendency of
appeal.
6. When accused is charged with a capital
offense and evidence of guilt is strong
7. After conviction by the RTC imposing a
penalty of imprisonment exceeding 6 years
but not more than 20 years and any of the
circumstance enumerated above and other
similar circumstance is present and proved,
no bail shall be granted.
L A W
The determination of whether or not the

evidence of guilt is a matter of judicial
discretion, which in the every nature of things
may rightly be exercised only after the evidence
is submitted to the court at the hearing.
A proper exercise of judicial discretion requires
that the evidence of guilt be submitted to the
court with the petitioner having the right of
cross examination and to introduce his own
evidence in rebuttal.
Evidence in Bail Hearing
The evidence presented during the bail hearing
are considered automatically reproduced at the
trial, but upon motion of either party, the court
may recall any witness for additional
examination.
Section 9. Amount of bail; guidelines.
Section 6. Capital Offense defined.

Capital Offense is an offense which under
the law existing at the time of its commission
and of the application for admission to bail,
may be punished with death.
Factors to be considered in fixing the

reasonable
amount
of
bail
(not
exclusive):
a. Financial ability of the accused to give
bail;
b. Nature and circumstances of the
offense;
c. Penalty for the offense charged;
d. Character and reputation of the accused;
e. Age and health of the accused;
f. Weight of evidence against the accused;
g. Probability of the accused appearing at
the trial;
h. Forfeiture of other bail;
i. The fact that the accused was a fugitive
from justice when arrested; and
j. Pendency of other cases when the
accused is on bail
Section 7. Capital Offense not bailable.

The capital nature of the offense is determined
by the penalty prescribed by law not the
penalty which may actually be imposed since
the latter requires a consideration of the
evidence at the trial.
Section 8. Burden of proof in bail
application.
Nature of Bail Hearing
The hearing should be summary or otherwise in
the discretion of the court but the right of the
prosecution to control the quantum of evidence
and the order of presentation of witnesses must
be equated with the purpose of the hearing to
determine the bailability of the accused.
The principal factor considered, to the

determination of which most other factors are
directed, is the probability of the appearance of
the accused, or of his flight to avoid
punishment.
Burden of Proof in Bail Hearing
Section 10. Corporate Surety.
At the hearing of the application for bail, the

burden of showing that the case falls under the
exception in order that the accused may not be
granted bail rest on the prosecution.
Section 11. Property bond, how posted

Section 12. Qualification of sureties in
property bond.
R E M E D I A L
L A W
Page 90 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Qualifications of sureties in property

bond:
a. Each must be a resident owner of real
estate within the Philippines;
b. Where there is only one surety, his real
estate must be worth at lease the
amount of the undertaking;
c. if there are two or more sureties, each
may justify in an amount less than that
expressed in the undertaking but the
aggregate of the justified sums must be
equivalent to the whole amount of the
bail demanded.
In all cases, every surety must be
with the amount specified in his own
undertaking over and above all just
debts, obligations and properties
exempt from execution.
L A W
Section 13. Justification of sureties.

Purpose: The obvious purpose of the rule
requiring the execution of an affidavit of
qualification by the surety before the judge, is to
enable the latter to determine whether or not
the surety possesses the qualifications to act as
such, especially his financial worth.
Section 14. Deposit of cash as bail.
Section 15. Recognizance
Recognizance - an obligation of record,
entered into before some court or officer
authorized to take it with a condition to do
some particular act and the accused is often
allowed to obligate himself to answer the
charge.
Section 16. Bail when not required; reduced bail on recognizance.

INSTANCES
WHERE AN
ARRESTED
PERSON MAY BE
RELEASED ON
RECOGNIZANCE
1. Where he has been in custody for a period equal to or more than the minimum of
the principal penalty prescribed for the offense charged, without application of
the Intermediate Sentence Law or any modifying circumstances, in which case he
shall be released on a reduced bail or on his own recognizance, at the discretion
of the court in accordance with Section 16 of this Rule.
2. Where he is arrested or charged with violation of a municipal or city ordinance, a
light felony or an offense the prescribe penalty for which is not higher than six
months imprisonment or a fine of two thousand pesos, but is not exempted from
posting a bond in accordance with Section 1 of Republic Act No. 6036, in which
case he may be released on his own recognizance or on the recognizance of a
responsible citizen in the community in accordance with Section 2 of said Act;
3. When the accused applies for probation and no bail was filed or that is incapable
of filing one, the court may allow his release on recognizance to the custody of a
responsible member of the community who shall guarantee his appearance
whenever required by the court (Section 7, P.D. No. 968).
4. A youthful offender for physical and mental examination or trial or pending
appeal if unable to post bail shall from the time of his arrest be committed to the
care of the Secretary of Social Services or the local rehabilitation center upon the
recommendation of the Department of Social Services or other agency or
agencies authorized by the court, release the youthful offender on recognizance
to the custody of his parents or other suitable person who shall be responsible for
his appearance whenever required (Article 191, P.D. 603).
5. In summary procedure, where the accused was arrested for failure to appear
whenever required in which he shall be released either on bail or on recognizance
by a responsible citizen acceptable to the court.
R E M E D I A L
L A W
Page 91 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
CAN BE RELEASED
WITHOUT BAIL
1.
A I D
I N
R E M E D I A L
L A W
Offense
charged
is violation of an ordinance, light felony or a
criminal offense, the imposable penalty wherefore does not exceed 6
months of imprisonment and/or fine of P 2,000 under R.A.6036.
2. Where the accused has applied for probation and before the same
has been resolved but no bail was filed or the accused is incapable of
filing one, in which case he may be released on recognizance
UNDER REPUBLIC ACT

NO. 6036
3. In case of a youthful offender held for physical or mental

examination, trial or appeal, if unable to furnish bail and under the
circumstances under PD 603, as amended
GENERAL RULE:
Any provision of existing law to the contrary notwithstanding, bail shall not be
required of a person charged with violation of a municipal or city ordinance, a
light felony and/or a criminal offense the prescribe penalty for which is not
higher than six months imprisonment and/or a fine of two thousand pesos, or
both, where said person has established to the satisfaction of the court or any
other appropriate authority hearing the case that he is unable to post the
required cash or bail bond, except in the following cases:
1. When he is caught committing the offense in flagrante;
2. When he confesses to the commission of the offense unless the
confession is later repudiated by him in a sworn statement or in open
court as having been extracted through force or intimidation;
3. When he is found to have previously escaped from legal confinement,
evaded sentence, or jumped bail;
4. When he is found to have previously violated the provisions of Section
2 thereof;
5.
When he is found to be a recidivist or a habitual delinquent or has been

previously convicted for an offense to which the law or ordinance
attaches an equal or greater penalty or for two or more offenses to
which it attaches a lighter penalty.
6. When he commits the offense while on parole or under conditional

pardon; and
7.
ON REDUCED BAIL OR
ON HIS OWN
RECOGNIZANCE
UNDER THE REVISED
RULES ON SUMMARY
PROCEDURE
When the accused has previously been pardoned by the municipal or

city mayor for violation of municipal or city ordinance for at lease two
times.
A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of the
indeterminate sentence law or any modifying circumstance shall be released on
reduced bail or on his own recognizance.
GENERAL RULE: No bail
EXCEPTION:
1. When a warrant of arrest is issued for failure to appear hen required by the
court
2. When the accused:
a. is a recidivist;
b. is a fugitive from justice;
c. is charged with physical injuries
d. d. does not reside in the place where the violation of the law or
ordinance is committed; or
e. has not reside in the place where the violation of the law or
ordinance is committed; or
f. f. has no known residence
R E M E D I A L
L A W
Page 92 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
Section 17. Bail, where filed.
Section 20. Increase or reduction of bail.
1. With the court where the case is pending or

in the absence or unavailability of the judge
thereof, with any regional trial judge,
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
province, city, or municipality.
2. If the accused is arrested in a province, city
or municipality other than where the case is
pending, bail may also be filed with any
regional trial court of said place, or if no
judge thereof is available, with any
metropolitan trial judge, municipal trial
judge or municipal circuit trial judge
therein.
3. Where the grant of bail is a matter of
discretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the case
is pending, whether on [preliminary
investigation], trial or appeal.
4. Any person in custody who is not yet
charged in court may apply for bail with any
court in the province, city or municipality
where he is held.
5. If the decision of the trial court convicting
the accused changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with
and resolved by the appellate court (Section
5, Rule 114).
Section 21. Forfeiture of bail.
TAKE NOTE!
A.M. No. 05-8-26-SC,
which took effect recently on October 3,
2005, amended Rule 114 of the Rules of
Court.
Section 17 (b) no provides that
applications for bail in cases where the
grant of bail is a matter of discretion, or
where the accused seeks to be released
on recognizance, can only be filed in the
court where the case is pending, on trial
or on appeal.
Section 18. Notice of application to
prosecutor.
When admission to bail is a matter of
discretion, the court must give reasonable
notice of the hearing to the prosecutor or
require him to submit his recommendation.
Section 19. Release on bail.
Order of
forfeiture
An
order
of
forfeiture
is
conditional
and
interlocutory, there
being
something
more to be done such
as the production of
the accused within 30
days as provided by
the rules an order of
forfeiture
is
not
appealable.
Order of
confiscation
An
order
of
confiscation is not
independent of the
order of the order
of forfeiture. It is a
judgment
ultimately
determining
the
liability
of
the
surety thereunder,
and therefore final
and execution may
issue at once.
Within the period of thirty days allowed

them by the Rules, the bondsmen must
produce the body of their principal or give
reason for his non-production, and explain
satisfactory why the accused did not appear
before the court when first required to do
so.
The question of whether or not the
explanation of the bondsmen for their
failure to produce the accused is satisfactory
is addressed to the discretion of the trial
court.
Section 22. Cancellation of bailbond.

When bail bond can be cancelled:
a. upon application by the bondsman with
notice to the fiscal and upon surrender of
the accused
b. upon proof that the accused died
c. It is automatically cancelled upon the
acquittal of the accused or dismissal of the
case, without prejudice to any liability on
the bond
Cancellation of the bond does not of itself
relieve the bondsmen of their liability thereon
incurred prior to their discharge.
Methods by which sureties may relieve
themselves from responsibilities
R E M E D I A L
L A W
Page 93 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
1. by arresting the principal and deliver him to

the proper authorities
2. by causing his arrest to be made by any
police officer or other person of suitable age
or discretion
3. by endorsing the authority to arrest upon a
certified copy of the undertaking and
delivering it to such officer or person
Section 1. Rights of the accused at the

trial.
Section 23. Arrest of accused out on bail.
RIGHTS OF THE ACCUSED:
An accused released on bail may be rearrested without a warrant if he attempts to

depart from the Philippines without prior
permission of the court where the case is
pending.
When the obligation of bail is assumed, the
sureties become in law the jailers of their
principal.
Section 24. No bail after final judgment;

exception.
Sandiganbayan,
G.R.
February 22,2001).
a. To be presumed innocent
supervision
of
Filing of bail does not constitute a waiver of

accuseds right to preliminary investigation.
Section 26, Rule 114 of the Revised Rules of
Criminal Procedure provides that an
application for or admission to bail shall not bar
the accused from changing the validity of his
arrest or the legality of the warrant issued
therefor, or from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him,
provided that he raised them before entering
his plea. XXX. (Alvarez Aro Yusop vs.
Equipoise rule where the evidence of

the parties in a criminal case are evenly
balanced,
the
constitutional
presumption of innocence should tilt in
favor of the accused and must be
acquitted.
b. To be informed of the nature and the

cause of the accusation against him.
EXCEPTION:
Although the judgment of conviction is final, if
the accused applies for probation he may
allowed temporary liberty under his existing
bail bond, or if no bail was filed, or is incapable
of filing one, he may be released on
recognizance to the custody of a responsible
member of the community
Court
138859-60,
RULE 115
RIGHTS OF THE ACCUSED
GENERAL RULE:
The finality of the judgment terminates the
criminal proceeding. Bail becomes of no avail.
The judgment contemplated is a judgment of
conviction. The judgment is final if the accused
does not appeal the conviction.
Section 24.
detainees.
No.
Hornbook doctrine an accused cannot

be convicted of an offense unless it is
clearly charged in the complaint or
information.
When a person is charged in a complaint
with a crime and the evidence does not
show that he is guilty thereof, but does
show that he is guilty of some other
crime or a lesser offense, the court may
sentence him for the lesser offense,
provided the lesser offense is a cognate
offense and is included in the complaint
with the court.
In capital offenses, when there is a
discrepancy between the designation of
the crime in the preamble to the
information and the facts pleaded in the
body, the court should call the attention
of the accused, so that he may be fully
apprised of the nature and cause of the
accusation against him.
c. To be present and defend in person

and by counsel at every stage of the
proceeding
R E M E D I A L
The presence of the accused is required

ONLY:
a) During arraignment (Sec. 1b, rule
116)
b) Promulgation of judgment except
when the conviction is for a light
L A W
Page 94 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
offense, in which case, it may be

pronounced in the presence of his
counsel or a representative
c) When ordered by the court for
purposes of identification
L A W
MANDATORY only at the time of

arraignment (Sec. 6 Rule 116).
e. To testify as witness in his own behalf.
f. Right against self-incrimination.
TRIAL IN ABSENTIA
Conditions for trial in absentia to
apply:
(1) accused has been arraigned
(2) he has been duly notified of the
trial
(3) his failure to appear is
unjustified
PURPOSE
OF
TRIAL
IN
ABSENTIA: to speed up the
disposition of criminal cases, trial of
which could in the past be
indefinitely deferred and many time
completely abandoned because of
the defendants escape.
NOT APPLICABLE IN SC and
CA -The law securing to an accused
person the right to be present at
every stage of the proceedings has no
application to the proceedings before
the Court of Appeals and the
Supreme Court nor to the entry and
promulgation of their judgments The
defendant need not be present in
court during the hearing of the
appeal. (Sec. 9 Rule 124)

d. Right to counsel.
When the accused appears before the

court without counsel, the court has the
following duties:
a) It must inform the accused that it is
his right to have an attorney before
being arraigned;
b) After giving him such information,
the court must ask him if he desires
the aid of an attorney;
c) If he desires and is unable to employ
one, the court must assign an
attorney de oficio to defend him; and
d) If the accused desires to procure an
attorney of his own, the court must
grant him reasonable time therefor.
The duty of the court to appoint a
counsel de oficio when the accused has
no legal counsel of choice and desires to
employ the services of one is
The right against self-incrimination is

not self-executing or automatically
operational. It must be asserted.
Exceptions: immunity statutes such as:
a) RA 1379 Forfeiture of Illegally
obtained wealth
b) RA 749 Bribery and Graft cases
Immunity statutes may be generally
classified into two: one, which grants
use immunity, and the other, which
grants what is known as transactional
immunity. The distinction between the
two is as follows. use immunity
prohibits use of witness compelled
testimony and its fruits in any manner
in connection with the criminal
prosecution of the witness. On the other
hand, transactional
immunity
grants immunity to the witness from
prosecution for an offense to which his
compelled testimony relates.
Right of the accused against selfincrimination vs. right of that of
an ordinary witness
The ordinary witness may be
compelled to take the witness stand
and claim the privilege as each
question requiring an incriminating
answer is shot at him, an accused
may altogether refuse to take the
witness stand and refuse to answer
any and all questions.
g. Right to confront and cross examine

the witnesses against him at trial.
R E M E D I A L
Purposes:
a) to secure the opportunity of cross
examination; and
b) to allow the judge to observe the
deportment and appearance of the
witness while testifying.
Either party may utilize as part of its
evidence the testimony of a witness who
died, out of or cannot with due diligence
be found in the country, unavailable or
otherwise unable to testify, given in
another case or proceeding, judicial or
L A W
Page 95 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
administrative, involving the same

parties and subject matter, the adverse
party having had the opportunity to
cross-examine him.
h. Right to speedy, impartial and public
trial.
Remedies available to the accused
when his right to a speedy trial is
violated:
a) He should ask not for the dismissal
but for the trial of the case
b) Unreasonable delay of the trial of a
criminal case as to make the
detention of defendant illegal gives
ground for habeas corpus as a
remedy for obtaining release so as to
avoid detention for a reasonable
period of time
C) Accused would be entitled to relief in
a
mandamus
proceeding
to
compel the dismissal of the
information
Note! No double jeopardy will
attach if case is dismissed based on violation
of right to speedy trial.
Public trial
The court may upon its own motion
exclude the public from the courtroom if
the evidence to be produced during the
trial is of such a character as to be
offensive to decency or public moral.
The court may also, upon motion of the
accused, exclude the public from trial
except court personnel and the counsel
for the parties (Sec. 13 Rule 119)
i. Right to appeal on all cases allowed by

law and in the manner prescribed by
law.
L A W
RULE 116
ARRAIGNMENT AND PLEA
Section 1. Arraignment and plea; how
made.
Arraignment - consists of reading the
information to the accused and asking him, in
open court whether or not he is guilty of what is
alleged against him
Plea - the matter which the accused on his
arraignment, alleges in answer to the charge
against him.
Purpose of Plea:
To make an issue; Without an issue, there is
nothing to be tried and nothing on which the
judgment and sentence of a court can be
properly predicated
Arraignment - Where and how made:
a. before the court where the complaint or
information has been filed or assigned for
trial
b. by the judge or clerk of the court by
furnishing the accused a copy of the
complaint or information with the list of the
witnesses, reading it in a language or dialect
known to him and asking him of his plea.
Rules on Plea:

R E M E D I A L
There can be no double jeopardy where the

accused has not yet pleaded to the offense.
A mere written manifestation is not a valid
plea. For jeopardy to attach, it is necessary
that the defendant has been arraigned and
has pleaded to the charge because it is from
that moment that the issues are deemed
joined.
To avoid delay, the presence of the offended
party is now required during the
arraignment and also to discuss the matter
of accuseds civil liability. His failure to
appear despite due notice gives the court
discretion to allow the accused to plead
guilty to a lesser offense with solely the
conformity of the trial prosecutor.
If the accused refuses to plead, or makes a
conditional plea of guilty, a plea of not guilty
shall be entered for him (Section 1(c), Rule
116, supra).
L A W
Page 96 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 97 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
When should a plea of guilty be entered:
Requisites:
1) when the accused so pleaded

2) when he refuses to plead
3) where in admitting the act charged, he sets
up matters of defense or with lawful
justification
4) when he enters a conditional plea of guilt
5) where, after a plea of guilt, he introduces
evidence
of
self-defense
or
other
exculpatory circumstances
6) when the plea is indefinite or ambiguous
a. consent of the offended party and the

prosecutor to the plea of guilty to a lesser
offense which is necessarily included in the
offense charged
b. the prosecution does not have sufficient
evidence to establish the guilt of the accused
of the crime charged.
Unconditional Plea of Guilt
When the accused pleads guilty to a

capital offense, the court shall:
General Rule:
An unconditional plea of guilt admits of the
crime and all the attendant circumstances
alleged in the information including the
allegations of conspiracy and warrants of
judgment of conviction without need of further
evidence
Exceptions:
1. plea of guilty was compelled by violence or
intimidation
2. the accused did not fully understand the
meaning and consequences of his plea
3. insufficient
information
to
sustain
conviction of the offense charged
4. information does not charge an offense, any
conviction thereunder being void
5. court has no jurisdiction
Section 3. Plea of guilty to capital

offense; reception of evidence
a. conduct a searching inquiry into the

voluntariness and full comprehension of the
consequences of his plea and
b. require the prosecution to prove his guilt
and the precise degree of his culpability
c. ask the accused if he desires to present
evidence in his behalf and allow him to do
so if he desires
Section 4. Plea of guilty to non-capital
offense;
reception
of
evidence,
discretionary.
Section 5. Withdrawal of improvident
plea of guilty.
Section 2. Plea of guilty to a lesser

offense.
General Rule:
At any time before judgment of conviction
becomes final, a plea of guilty imprudently
entered may be withdrawn and substituted by a
negative plea.
The accused with the consent of the offended

party and the prosecutor may be allowed by the
trial court to plead guilty to a lesser offense
which is necessarily included in the offense
charged.
The withdrawal of a plea of guilty is not a

matter of right to the accused but of sound
discretion to the trial court. A plea of guilty later
withdrawn is not admissible in evidence against
an accused.
GENERAL RULE: The plea of guilty to a lesser

offense than that actually charged is not
supposed to be allowed as a matter of
bargaining or compromise for the convenience
of the accused.
Section 6. Duty of court to inform

accused of his right to counsel.
EXEPTION: The rule allow such a plea only

when the prosecution does not have the
sufficient evidence to establish guilt of the
accused of the crime charged.
Duties of the court when the accused

appears at the arraignment without
counsel:
a. inform the accused of his right to counsel
b. ask him if he desires to have one
R E M E D I A L
L A W
Page 98 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
c. if he desires and is unable to employ an

attorney, the court must assign an attorney
de oficio to defend him; and
d. if the accused desires to procure an attorney
of his own, the court must grant him a
reasonable time therefor.
L A W
Section 9. Bill of particulars --
Failure of the courts to fulfill/comply with this

duty is a denial of due process.
PURPOSE:
To enable the accused to be informed of the
charges and provides for the remedy from the
vague and indefinite allegations in the
complaint or information and it becomes an
integral part of the complaint or information
which it supplements.
Section 7. Appointment of counsel de

oficio.
The failure to ask for Bill of Particulars amounts

to a waiver of such right.
A private prosecutor who assisted the

prosecuting attorney in the prosecution
against one defendant is disqualified from
acting as counsel de oficio for the other
defendants in the same case. An attorney
cannot act in a double capacity.
Although the attorney appointed as counsel
de oficio had previously appeared as private
prosecutor in the case, if it appears that the
accused was properly defended, the
appointment, even if erroneous, is not a
reversible error.
In localities where such members of
the bar are not available, the court
may appoint any person who is:
a. resident of the province and
b. of good repute for probity and ability to
defend the accused.
Section 8. Time for counsel de oficio to

prepare for arraignment.
The new rule eliminates the requirement of

one hour from appointment for the counsel
de oficio to consult with the accused as to
his plea before proceeding with the
arraignment, and instead requires a
reasonable time to consult with the
accused as to his plea.
The former Section 9 of this Rule is no
longer reproduced because under Section
1, Rule 119, the accused shall have fifteen
(15) days to trial, which shall commence
within thirty (30) days from receipt of the
pre-trial order.
At or before arraignment, the accused may
move for a bill of particulars. (The remedy
against an indictment that fails to allege the
time of the commission of the offense with
sufficient definition is a motion for a bill of
particulars and not a motion to quash.)
Section 11. Suspension of arraignment

Grounds for suspension:
a. the accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently
thereto; and
b. there exists a prejudicial question; and
c. a petition for review of the resolution of the
prosecutor is pending at the Department of
Justice or the Office of the President;
provided that the period of suspension shall
not exceed 60 days counted from the filing
of the petition.
RULE 117
MOTION TO QUASH
Section 1. Time to move to quash.
MOTION TO QUASH 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, except
those admitted by the prosecution.
General Rule:
The accused may move to quash the complaint
or information at any time BEFORE entering
his plea.
EXCEPTION - Instances where a motion
to quash may be filed AFTER plea:
a.
b.
c.
d.
R E M E D I A L
failure to charge an offense

lack of jurisdiction over the offense charged
extinction of the offense or penalty
jeopardy
L A W
Page 99 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Motion to Quash
A I D
I N
R E M E D I A L
Demurrer to
Evidence
filed
after
the
prosecution
has
rested its case
based
upon
the
inadequacy of the
evidence adduced by
the prosecution in
support
of
the
accusation
filed
before
the
defendant enters his
plea
does not go into the
merits of the case but
is anchored on matters
not directly related to
the question of guilt or
innocence
of
the
accused
governed by Rule 11 of governed by Rule
the Rules of Criminal 119 of the Rules of
Procedure
Criminal Procedure
Remedy if Motion to Quash is Denied
If the motion to quash is denied, the proper

procedure is to go to trial, without prejudice to
reiterating special defenses invoked in said
motion, and if, after trial on the merits, an
adverse decision is rendered, to appeal
therefrom in the manner authorized by law.
Section 2. Form and contents.
Form and contents of a motion to quash:
a. in writing
b. signed by the accused or his counsel
c. shall specify distinctly the factual and legal
grounds therefor.
If the accused had already entered his plea, it is
discretionary on the part of the court to permit
him to withdraw that plea in order to file a
motion to quash.
Under the rules, the motion to quash must
specify distinctly the factual and legal grounds
therfor and the court shall consider no grounds
other than those stated therein, except lack of
jurisdiction over the offense charged.
RESOLUTION OF A MOTION TO QUASH:
A motion to quash must be resolved before trial
and cannot defer the hearing and determination
of said motion until trial on the merits as it
would impair the right of the accused to speedy
trial.
It may also be resolved at the preliminary
investigation since the investigating officer or
L A W
judge has the power to either dismiss the case

or bind the accused over for trial by the proper
court, depending on its determination of lack or
presence of probable cause.
Section 3. Grounds.
Grounds for motion to quash:
a. That the facts charged do not constitute an
offense;
b. That the court trying the case has no
jurisdiction over the offense charged;
c. That the court trying the case has no
jurisdiction over the person of the accused;
d. That the officer who filed the information
had no authority to do so;
e. That it does not conform substantially to the
prescribed form;
f. That more that one offense is charged
except when a single punishment for
various offenses is prescribed by law;
g. That the criminal action or liability has been
extinguished;*
h. That it contains averments which, if true
would constitute a legal excuse or
justification; and
i. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent.
Ground enumerated for motion to quash is
exclusive.
In resolving the motion to quash a criminal
complaint or information the facts alleged
therein should be taken as they are.
*Grounds
liability:
for
extinction
of
criminal
a. By death of the convict, as to personal

penalties; and as to pecuniary penalties,
liability therefore is extinguished only when
the death of the offender occurs before final
judgment;
b. By service of the sentence;
c. By amnesty, which completely extinguishes
the penalty and all its effects;
d. By absolute pardon;
e. By prescription of the crime;
f. By prescription of the penalty; and
R E M E D I A L
L A W
Page 100 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
g. By the marriage of the offended woman

(Article 344 of the Revised Penal Code)
Section 4. Amendment of complaint or
information.
If an alleged defect in the complaint or
information which is the basis of a motion to
quash can be cured by amendment, the court
shall order the amendment instead of quashing
the complaint or information.
If, after the amendment, the defect is still not
cured, the motion to quash should be granted.
Section 5. Effect of sustaining the motion
to quash.
Courses of action the court may take if it
sustains a motion to quash:
a. the dismissal of the information, which is
deemed to all intents and purposes, wiped
out and the case then stands as if no
information had ever been filed
b. the filing of a new information, if the
accused is in custody he shall remain so
unless he is released on bail. If there is no
such order or if there is such order and no
new information is filed within the period
fixed in the order or within such further
time as the court may allow for good cause
shown, the accused, who is in custody, shall
be discharged therefrom, unless he is in
custody for another offense.
An order sustaining a motion to quash based on
the ground that the criminal action on the
liability has been extinguished or on double
jeopardy constitutes a bar to another
prosecution for the same offense.
Procedure in case of Denial of Motion to
Quash:
a. The defendant should go to trial without
prejudice on his part to present the special
defenses he had invoked in his motion and,
if after trial on the merits, an adverse
decision is rendered to appeal therefrom in
the manner authorized by law.
b. A motion to quash is always addressed to
the discretion of the court. Neither
certiorari nor prohibition lies against an
L A W
order of the court granting or denying a

motion to quash an information.
c. An order denying a motion to quash is
merely interlocutory, and, therefore, not
immediately appealable.
Section 6. Order sustaining the motion
to quash not a bar to another
prosecution.
General Rule:
When a motion to quash is sustained, the order
of the court to that effect would not present a
legal roadblock to another prosecution for the
same offense.
Exemption:
The order sustaining the motion to quash
constitutes a bar to another prosecution for the
same offense when the ground relied upon for
the quashal of the information:
a. That the criminal action or liability has
been extinguished; or
b. That the accused has been previously
convicted, or in jeopardy of being
convicted, or acquitted of the offense
Nature of Order Denying / Granting
Motion to Quash
An order denying a motion to quash is
interlocutory and not appealable and such
cannot be controlled by certiorari, prohibition
or mandamus in another court of coordinate
rank.
An order granting a motion to quash is
appealable, and the accused cannot claim
double jeopardy as the dismissal is procured not
only with his consent but at his own instance.
Section
7.
Former
conviction
acquittal; double jeopardy.
or
Extent of protection afforded by the rule

on double jeopardy :
a. against the peril of a second punishment
b. against the peril of a second trial for the
same offense or for an attempt to commit
the same of frustration thereof.
R E M E D I A L
L A W
Page 101 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Requisites for double jeopardy:
a. the accused has been convicted or acquitted

b. the case against him has been dismissed or
otherwise terminated without his express
consent
c. the court which convicted or acquitted
the accused or dismissed or terminated the
case is a court of competent jurisdiction
d. the complaint or information was valid
and sufficient in form and substance to
sustain a conviction
e. the accused has pleaded to the charge
f. there is a subsequent prosecution against
the accused for the offense charged, or for
any attempt to commit the same or
frustration thereof, or for any offense which
necessarily includes or is necessarily
included in the offense charged in the
former prosecution.
Exception:
The conviction of the accused shall not be a bar
to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under the
following circumstances:
1) When the graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
2) When the facts constituting the graver
charge became known or were discovered
only after a plea was entered in the former
complaint or information;
3) When the plea of guilty to the lesser offense
was made without the consent of the
prosecutor and of the offended party, except
when the offended party failed to appear a t
the arraignment despite due notice.
Occasions when double jeopardy will
attach even if the motion to dismiss the
case is made by the accused himself:
a. When the ground is insufficiency of
evidence of the prosecution
- If the dismissal is based on
insufficiency of evidence to establish
the guilt of the accused beyond
reasonable doubt, the dismissal is
actually an acquittal.
b. When the proceedings have been
unreasonably prolonged in violation of
the right to a speedy trial (People vs.
Gines).
L A W
If the dismissal is based on the right

of the accused to a speedy trial, the
dismissal amounts to an acquittal
and operates to bar another
prosecution for the same offense
even if the dismissal were upon
motion of the accused.
Dismissal
Investigation
during
Preliminary
The discharge of a defendant on a preliminary

investigation is not such an adjudication in his
favor as will bar a subsequent prosecution for
the offense. This is because a preliminary
investigation is not trial or any part thereof and
does not have for its object that of determining
definitely the guilt of the accused by proofs,
counter-proofs, and the other formalities
prescribed by law.
Test for determining whether the two
offenses are identical
SAME OFFENSE TEST - There is
IDENTITY between two offense not only when
the second offense is exactly the same as the
first, but also when the second offense is an
attempt to or is necessarily included in the
offense charged in the first information.
Exceptions to the identity rule:
a. The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge.
b. The facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information.
c. The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party; except when the
offended party failed to appear during the
arraignment.
In any of these instances, such period of the
sentence as may have been served by the
accused under the former conviction shall
be credited against and deducted from the
sentence he has to serve should he be
convicted under the subsequent prosecution
SAME EVIDENCE TEST - whether the facts
as alleged in the second information, if proved,
would have been sufficient to sustain the former
R E M E D I A L
L A W
Page 102 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
information, or from which the accused may

have been acquitted or convicted
Dismissal
Is always based on
the merits, that is,
the defendant is
acquitted because
the evidence does
not show
defendants guilt
beyond reasonable
doubt
Acquittal
Does not decide the
case on the merits or
that the defendant is
not guilty
L A W
thereto he shall be taken to have waived all

objections which are grounds for a motion to
quash
EXCEPT: when the complaint or information a. does not charge an offense
b. the court is without jurisdiction over the
offense charged
c. the offense or penalty has been
extinguished
d. jeopardy
RULE 118
PRE-TRIAL
Section 8. Provisional dismissal.

Section 1. Pre-trial; mandatory in
criminal cases.
REQUISITES:
a. There must be a motion by the
prosecution with the express conformity
of the accused, or by the accused
himself, or by both the prosecution and
the accused for a provisional dismissal
of the case;
b. The offended party is notified of the
motion for a provisional dismissal of the
case;
c. The court issues an order granting the
motion and dismissing the case
provisionally;
d. The public prosecutor is served with a
copy of the order of provisional
dismissal of the case.
If a case is provisionally dismissed with the
consent of the prosecutor and the offended
party, the failure to reinstate it within the given
period will make the dismissal permanent.
Matters covered during Pre-Trial:

a. plea bargaining;
b. stipulation of facts;
c. marking for identification of evidence of the
parties;
d. waiver of objections to admissibility of
evidence;
e. modification of the order of trial if the
accused admits the charge but interposes a
lawful defense; and
f. such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case. (Secs. 2 & 3, Circ. 38-98)

PERIOD FOR REINSTATEMENT:

a. offenses punishable by imprisonment
not exceeding 6 years = ONE YEAR
b. offenses punishable by imprisonment of
more than 6 years = TWO YEARS
Otherwise the dismissal shall be
removed from being provisional and
becomes permanent.
Section 9. Failure to move to quash or to
allege any ground therefor.
General Rule:
If the accused does not move to quash the
complaint or information before he pleads
Pre-trial is MANDATORY in all criminal

cases (Speedy Trial Act of 1998).
The court shall after arraignment and
within 30 days from the time the court
acquires jurisdiction over the person of the
accused, unless a shorter period is provided
for by social laws in circular of the Supreme
Court, order a pre-trial.
Purpose of Pre-trial:
To simplify the issues, shape up the testimonial
and documentary evidence, and generally to
clear the desks for trial.
Plea bargaining the process whereby the
accused, the offended party and the prosecution
work out a mutually satisfactory disposition of
the case subject to court approval. It usually
involves the defendants pleading guilty to a
lesser offense or to only one or some of the
counts of a multi-count indictment in return for
R E M E D I A L
L A W
Page 103 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
a lighter sentence than that for the graver

charge.
Purpose: To consider the possibility of an
amicable settlement of the case.
Procedure for plea bargaining:
1. Routinely, the judge asks the prosecution
and the accused if they like to engage in plea
bargaining.
2. If they so agree, the following, as dictated by
the circumstances of the individual case are
provided:
a. To make or not to oppose favorable
recommendations as to the sentence
which should be imposed if the accused
enters a plea of guilty to the offense
charged;
b. The plea of guilty to a lesser offense; if
the lesser offense is necessarily included
in the offense charged there is no need
to amend the information, however, if
no necessarily included in the
information, the information should be
dismissed and a new one filed;
c. The presence of mitigating and absence
of aggravating circumstances or the
imposable penalty be probationable; and
d. The dismissal of other changes against
the accused if he enters a plea of guilty
to the charge under consideration.
This plea bargaining may be done during the
arraignment, at the pre-trial or even during the
trial where has already been presented provided
the parties mutually agree to strike out from the
records the testimony and evidence so far
presented, thus making the record appears as if
no trial had been conducted.
But NO PLEA BARGAINING IS ALLOWED
under the Dangerous Drugs Act where the
imposable penalty for the offense charges is
reclusion perpetua to death.
Section 2. Pre-trial agreement.
L A W
Otherwise, any agreement or admission cannot

be used in evidence against the accused.
Pre-Trial
Stipulations
The omission of the
signature of the
accuse and his
counsel render the
Stipulation of Facts
inadmissible in
evidence.
Admission
A stipulation of facts
entered into by the
prosecution ad
defense during trial
in open court is
automatically
reduced into writing
and contained in the
official transcript of
the proceedings had
in court.
The conformity of the
accused in the form
of his signature
affixed thereto is
unnecessary.
Section 3. Non-appearance at pre-trial

conference.
General Rule:
The accused is not the one compelled to
appear, but only the counsel for the
accused or the prosecutor.
The principal reason why accused is not
included in the mandatory appearance is
the fear that to include him is violate his
constitutional right to remain silent.
The sanctions or penalty for failure to appear
may be in the form of reprimand, fine or
imprisonment. Inasmuch as this is similar to
indirect contempt of court, the penalty for
indirect contempt may be imposed.
Section 4. Pre-trial order.
After the pre-trial, the court issues an order
reciting what has been taken, and thereafter the
trial on the merits will proceed on matters not
disposed of during the pre-trial.
Requisites before the pre-trial agreement

can be used as evidence:
1. they are reduced to writing
2. the pre-trial agreement is signed by the
accused and his counsel
R E M E D I A L
L A W
Page 104 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
RULE 119
TRIAL
R E M E D I A L
L A W
Page 105 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Section 1. Time to prepare for trial.
period of time:
Preparation for Trial:

a. Under the present rule, the accused shall
have at least fifteen (15) days to prepare for
trial, which must commence within thirty
(30) days from receipt of the pre-trial order.
In short, within thirty (30) days from
receipt of the pre-trial order, the trial will be
scheduled.
b. Notice to the parties of the date of trial is an
elementary requirement of procedural due
process, and that requirement is satisfied
only if the parties are afforded reasonable
time within which to prepare for the
scheduled proceedings. Hence, if the court
discovers that either of the parties to the
action has not been notified of the trial, it
may on its own motion grant a new trial.
Section 2. Continuous trial
terminated; postponements.
until
CONTINUOUS TRIAL SYSTEM

L A W
Trial once commenced shall continue from

day to day as far as practicable until
terminated; but it may be postponed for a
reasonable period of time for good cause.
Purpose of the continuous trial system is to
expedite the decision or resolution of cases
in the trial court.
Limitation of the trial period:

It shall in no case exceed 180 days from the first
day of the trial, except as otherwise provided by
the Supreme Court
a. mandamus to compel a dismissal of the

information
b. if he is restrained of his liberty, by
habeas corpus to obtain his freedom
The non-appearance of the prosecution
at the trial, despite due notice, justified a
provisional dismissal or an absolute
dismissal
depending
upon
the
circumstances.
Section 11. Order of Trial
The trial shall proceed in the following
order:
a. The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability
b. The accused may present evidence to prove
his defense and damages, if any, arising
from the issuance of a provisional remedy in
the case.
c. The prosecution and the defense may, in
that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue
d. Upon admission of the evidence of the
parties, the case shall be deemed submitted
for decision unless the court directs them to
argue orally or to submit written
memoranda.
e. When the accused admits the act or
omission charged in the complaint or
information but interposes a lawful defense,
the order of trial may be modified.
It is elemental that all parties to a cause are

entitled to a reasonable opportunity to
establish their respective pretense. To that
end, the parties are allowed a certain
latitude in the presentation of their
evidence, lest they be so hampered that the
ends of justice may eventually be defeated
or appear to be defeated.
In the furtherance of justice, the court may

grant either party the right and the
opportunity to adduce additional evidence
bearing upon the main issue in question.
A departure from the order of the trial is not

reversible error as where it was agreed upon
or not seasonably objected to, but not where
Requisites Before a Trial can be Put-off

on Account of the Absence of a Witness:
a. that the witness is material and appears to
the court to be so
b. that the party who applies has been guilty of
no neglect
c. that the witnesses can be had at the time to
which the trial is deferred and incidentally
that no similar evidence could be obtained
d. that an affidavit showing the existence of
the above circumstances must be filed
Remedies
of
accused
where
a
prosecuting officer without good cause
secures postponements of the trial
against his protest beyond a reasonable
R E M E D I A L
L A W
Page 106 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
the change in the order of the trial was

timely objected by the defense.
L A W
b. substance of testimony
c. witness is so sick to afford reasonable
ground to believe that he will not be able
to attend the trial or resides more that
100 km and has no means to attend the
same, or other similar circumstances
exist that would make him unavailable
or prevent him from attending trial
Where the order of the trial set forth under

this section was not followed by the court to
the extent of denying the prosecution an
opportunity to present its evidence, the
judgment is a nullity (People vs. Balisacan).
Admission of rebuttal evidence is addressed

to the sound discretion of the trial court.
Section 13. Examination of defense

witness; how made.
Upon the admission of the parties evidencein-chief, rebuttal and surrebuttal proof, the
case is deemed submitted for decision
unless the court directs them to argue their
respective submission orally or for them to
submit their respective memoranda.
If the court is satisfied that the examination

of witness is necessary as provided in
SECTION 4, order shall be made and a copy
served on the fiscal.
The examination shall be taken before any

judge or if not practicable any member of
the Bar in good standing designated in the
order
Rules on Modification of order of trial:

General Rule:
The order in the presentation of evidence must
be followed. The accused may not be required
to present his evidence first before the
prosecution adduces its own proof, because the
due process clause of the Constitution requires
that the order of trial prescribed by the Rules
shall be followed. Such order of trial protects
the right of the accused to be presumed
innocent.
Exceptions:
1) Where a reverse procedure was adopted
without the objection of the defendant and
such procedure did not prejudice his
substantial rights, the defect is not a
reversible error.
2) When the accused admits the acts or
omission charged in the complaint or
information but interposes a lawful defense,
the order of trial may be modified
accordingly.
Section 12. Application for examination
of witness for accused before trial.

Accused may have his witness examined

conditionally in his behalf BEFORE trial
upon motion with notice to all other parties
Motion must be supported by affidavit of
the accused and such other evidence as the
court may require
The motion must state:
a. name and residence of witness
Responsibilities of a witness under the

protection program:
a. to testify before and provide information to
all appropriate law enforcement officials
concerning all appropriate proceedings in
connection with or arising from the
activities involved in the offense charged
b. to avoid the commission of a crime
c. to take all necessary precautions to avoid
detection by others of the facts concerning
the protection provided him
d. to comply with legal obligations and civil
judgments against him
e. to cooperate with respect to all reasonable
requests of officers and employees
f. to regularly inform the appropriate program
official of his current activities and address.
Section 16. Trial of several accused
General Rule:
When two or more person are jointly charged
with an offense, they shall be tried jointly.
Exception:
The court, upon motion of the prosecutor or any
of the defendants, may order a separate trial for
one or more accused.
R E M E D I A L
The granting of a separate trial when two or

more defendants are jointly charged with an
offense is discretionary with the trial court.
L A W
Page 107 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
The motion for separate trial must be filed

before the commencement of the trial and
cannot be raised for the first time on appeal.
If a separate trial is granted, the testimony

of one accused imputing the crime to his coaccused is not admissible against the latter.
In joint trial, it would be admissible if the
latter had the opportunity for crossexamination.
EXCEPTIONS to rule that discharge

operates as an acquittal:
a. If the accused fails or refuses to testify
against his co-accused in accordance
with his sworn statement constituting
the basis of the discharge
b. Failure to testify refers exclusively to
defendants will or fault
c. Where an accused who turns states
evidence on a promise of immunity but
later retracts and fails to keep his part of
the agreement, his confession of his
participation in the commission of the
crime is admissible as evidence against
him.
Section 17. Discharge of accused to be

state witness.
Requisites for discharge as state witness:
a. absolute necessity for the testimony
b. no other direct evidence available for the
prosecution
c. testimony can be substantially
corroborated in its material points
d. accused not the most guilty
e. accused has never been convicted of an
offense involving moral turpitude
The prosecutor must first present evidence and

sworn statement of the proposed state witness.
An amended information is not a new

information but a continuation of the
previous one, so that a discharge under the
original information is just as binding upon
the subsequent amended information. In
such cases, double jeopardy will not attach.
Section 19. When mistake has been made

in charging the proper offense.
Rules Relative to the Use of Person

Himself If Particeps Criminis As
Government Witness:
All requisites to be complied with: The

discharge of an accused that he may turn
state witness is expressly left to the
discretion of the court. The court has the
exclusive responsibility to see that
conditions prescribed by the rules exist.
More than one accused may be

discharged: It all depends upon the needs
of the prosecutor and the discretion of the
judge. Any error of the trial judge in this
manner cannot have the effect of
invalidating the testimony of the discharged
co-defendants.
Effects of Discharge:
Evidence adduced in support of the
discharge shall automatically form part of
the trial.
Discharge of accused operates as an

acquittal and bar to further prosecution for
the same offense.
If the court denies the motion to discharge

the accused as state witness, his sworn
statement shall be inadmissible in evidence.
The provision of Section 19 does not refer to any

mistake in charging the proper offense. It refers
to such a mistake whereby the defendant cannot
be convicted of the offense charged, nor of any
other offense necessarily included therein. In
such case, a new information should be filed
charging the accused with the proper offense
without discharging him by keeping him in
custody or under bail.
Rule 119 is the rule specifically governing the
trial stage where evidence is necessarily being
presented, hence, the trial court is now in a
better position to conclude that manifestly that
the accused cannot be convicted of the offense
charged or of one that it necessarily includes. It
would primarily be the function of the court to
motu proprio order the dismissal of the case
and direct the filing of the appropriate
information.
Section 22. Consolidation of trials of
related offenses.
This contemplates a situation where separate
R E M E D I A L
L A W
Page 108 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
his right to present evidence and the case is

decided on the basis of evidence for the
prosecution.
informations are filed:

1. For offenses founded on the same facts;
2. For offenses which form part of a series of
offenses of similar character
The court may also dismiss the action on the

ground of insufficiency of the evidence on its
own initiative after giving the prosecution the
opportunity to be heard. (Sec. 23 of Rule 119).
Section 23. Demurrer to evidence.

When accused may present evidence if
demurrer is denied
If the court denies the demurrer to evidence
filed with leave of court, the accused may
adduce evidence in his defense.
If the court denies the demurrer to evidence
filed without leave of court, the accused waives
the right to present evidence and submits the
case for judgment on the basis of the evidence
for the prosecution.
L A W
An order denying a demurrer to evidence

being interlocutory is not appealable.
Effect of sustaining demurrer to

evidence
If said motion is sustained, such dismissal,
being on the merits, is equivalent to an
acquittal, hence the prosecution cannot appeal
as it would place the accused in double
jeopardy.
Question:
Compare the effect of a denial of demurrer to
evidence in a civil case with those of a denial of
demurrer to evidence in a criminal case.
Answer:
In a civil case, the defendant has the right to
file a demurrer to evidence without leave of
court. If the demurrer is denied, he has the right
to present evidence. If his demurrer is granted
and on appeal by the plaintiff, the appellate
court reverses the order and renders judgment
for the plaintiff, the defendant loses his right to
present evidence. (Rule 33).
RULE 120
JUDGMENT
Section 1. Judgment; definition and

form.
Judgment - the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition of the proper
penalty and civil liability provided for by the
law.
Section 2. Contents of the judgment.
Judgment must be in writing in the official

language personally and directly prepared
and signed by the judge with a concise
statement of the fact and the law on which it
is based.
The proper remedy where the judgment

was not put in writing:
File a petition for mandamus to compel the
judge to put in writing the decision of the court.
If the judgment is one of CONVICTION,
judgment must state:
In the criminal case, the accused has to

obtain leave of court to file a demurrer to
evidence. If he obtains leave of court and his
demurrer to evidence is denied, he has the right
to present evidence in his defense. If his
demurrer to evidence is granted, he is acquitted
and the prosecution cannot appeal.
a. Legal ratification of the offense

constituted by the admissions of the
accused and the aggravating and
mitigating circumstances attending its
commission
b. Participation of me accused, whether as
principal, accomplice or accessory
c. Penalty imposed upon the accused, and
d. Civil liability or damages caused by the
wrongful act, unless separate civil action
has been reserved or waived
If the accused does not obtain leave of court and

his demurrer to evidence is denied, he waives
R E M E D I A L
L A W
Page 109 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
R E M E D I A L
L A W
L A W
Page 110 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
If the judgment is one of ACQUITTAL,

judgment must state:
a finding on the civil liability of the accused,
unless there is clear showing that the act
from which the civil liability might arise did
not exist.
Reasonable Doubt - state of the case which,
after full consideration of all evidence, leaves
the mind of the judge in such a condition that
he cannot say that he feels an abiding
conviction, to a moral certainty, of the truth of
the charge.
Acquittal a finding of not guilty based on the
merits, that is, the accused is acquitted because
the evidence does not show that his guilt is
beyond reasonable doubt, or a dismissal of the
case after the prosecution has rested its case
upon motion of the accused on the ground that
the evidence fails to show beyond reasonable
doubt that the accused is guilty.
Section 3. Judgment for two or more
offenses.
When two or more offenses charged in the
complaint or information, and the accused fails
to object to it before trial, the court may convict
the accused of as many offenses as charged and
proved.
Section 5. When an offense includes or is
included in another.
General rule:
If what is proved by the prosecution evidence is
an offense which is included in the offense
charged in the information, the accused may
validly be convicted of the offense proved.
An offense charged necessarily includes
another when some essential elements or
ingredients of the offense charged constitute the
offense proved, or when the essential elements
or ingredients of the offense charged constitute
or form part of those constituting the offense
proved, then one offense is included in the
other.
L A W
Promulgation of judgment - official

proclamation or announcement of judgment. It
consists of reading the judgment or sentence in
the presence of the accused and any judge of the
court rendering the judgment.
RULES
ON
THE
VALIDITY
PROMULGATION OF JUDGMENT
OF
a. The judgment must have been rendered and

promulgated during the incumbency of the
judge who signed it.
b. The presence of counsel during the
promulgation of judgment is not necessary.
Effect of Promulgation of Judgment in
Absentia
He shall lose all remedies, such as the right to
appeal, available in these Rules against the
judgment and the court shall order his arrest.
Section 7. Modification of judgment.
Upon motion of the accused, a judgment of
conviction may be modified or set aside by the
court before it has become final or before an
appeal has been perfected.
When a judgment becomes final:
a. when the period for perfecting appeal an
appeal has lapsed;
b. when the sentence is partially or totally
satisfied or served;
c. when the accused expressly waives in
writing his right to appeal; and
d. when the accused applies for probation.
A judgment of acquittal becomes final

immediately after promulgation and
cannot be recalled for correction or
amendment.
The prosecutor cannot ask for the

modification or setting aside of a judgment
of conviction because the rules clearly
provide that a judgment of conviction may
be modified or set aside by the court
rendering upon motion of the accused.
The trial court can validly amend the civil

portion of its decision within 15 days from
promulgation thereof even though the
appeal had in the meantime already been
Section 6. Promulgation of judgment.
R E M E D I A L
L A W
Page 111 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
perfected by the accused from judgment of

conviction.
Section 8. Entry of judgment.
The final judgment of the court is carried into
effect by a process called mittimus.
Mittimus the process in writing issuing from
the court or magistrate, directed to the sherrif
or other officer commanding him to convey to
prison the persons named therein, and to the
jailer, commanding him to receive and safely
keep such person until he shall be delivered by
due course of law.
L A W
b) Decisions and final orders of other courts, in

cases cognizable by said courts under this
Decree as well as those rendered by them in
the exercise of their appellate jurisdiction
shall be appealable to, or be reviewable by,
the Sandiganbayan in the manner provided
by Rule 122 of the Rules of Court.
c) In case, however, the imposed penalty by
the Sandiganbayan or the regional trial
court in the proper exercise of their
respective jurisdiction, is death, review by
the Supreme Court shall be automatic,
whether or not the accused file an appeal.
RULE 121
NEW TRIAL OR RECONSIDERATION
Amendments to the Revised Rules of
Criminal Procedure to Govern Death
Penalty Cases:
Considering that the Sandiganbayan was

created as a special court with exclusive
original jurisdiction over criminal cases
committed by public officers and employees
(Presidential Decree No. 1601, as amended,
Section 4); considering further that as a
court of justice, it is of the same level as the
Court of Appeals (Id. Section 1); the Court
RESOLVES that the amendments to the
Revised Rules of Criminal Procedure to
Govern Death Penalty Cases do not apply to
decisions of the Sandiganbayan where the
penalty imposed is death, reclusion
perpetua or life imprisonment. Appeals
from said judgment of convictions of the
Sandiganbayan are still governed by Section
7 of Presidential Decree No. 1606, as
amended, and the Revised Internal Rules of
the Sandiganbayan implementing the
same, particularly Rule X thereof.
Section 7 of P.D. No. 1606, as

amended:
a) Decisions and final orders of the
Sandiganbayan shall be appealable to the
Supreme Court by petition for review on
certiorari raising pure questions of law in
accordance with Rule 45 of the Rules of
Court. Whenever, in any case decided by the
Sandiganbayan, the penalty of reclusion
perpetua, life imprisonment or death is
imposed, the decision shall be appealable to
the Supreme Court in the manner
prescribed in the Rules of Court.
Section 1. New trial or reconsideration.

A motion for new trial or reconsideration
should be filed with the trial court within 15
days from the promulgation of the judgment
and interrupts the period for perfecting an
appeal from the time of its filing until notice of
the order overruling the motion shall have been
served upon the accused or his counsel.
When may a new trial be granted:
a. on motion of the accused
b. on motion of the court but with the consent
of the accused
Cases when the trial court lose
jurisdiction over its sentence even before
the lapse of 15 days:
a. When the defendant voluntarily submits to
the execution of the sentence
b. When the defendant perfects his appeal.
The moment the appeal is perfected the
court a quo loses jurisdiction over it, except
for the purpose of correcting clerical errors.
R E M E D I A L
L A W
Page 112 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
New Trial
1. filed
after
judgment
is
rendered
but
before
the
finality thereof
2. at the instance
or
with
the
consent of the
accused
A I D
I N
R E M E D I A L
Reopening of the
Case
1. made by the
court before the
judgment
is
rendered in the
exercise of sound
discretion
2. does not require
the consent of
the accused; may
be at the instance
of either party
who
can
thereafter
present
additional
evidence
Section 2. Grounds for new trial.
Section 4. Form of motion and notice to

the prosecutor.
Requisites for a motion for new trial or
reconsideration:
1. in writing
2. filed with the court
3. state grounds on which it is based:
If the motion for new trial is based
on newly discovered evidence, it
must be supported by the affidavits
of the witness by whom such
evidence is expected to be given, or
duly
authenticated
copies
of
documents which it is proposed to
introduce in evidence.
4. notice of the motion for new trial or
reconsideration shall be given to the
prosecutor
Section 5. Hearing on motion.
Grounds for a NEW TRIAL in criminal

cases:
a. errors of law or irregularities committed
during the trial prejudicial to the substantial
rights of the accused
b. new and material evidence discovered:
During the trial - refers to every stage of
the trial from arraignment to judgment
Requisites before a new trial may be
granted on the ground of newly
discovered evidence:
a. that the evidence was discovered after trial
b. that such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence
c. that it is material not merely cumulative,
corroborative or impeaching
d. the evidence is of such a weight that it
would probably change the judgment if
admitted
Section 3. Grounds for reconsideration.
Grounds
of
MOTION
RECONSIDERATION
L A W
FOR
a. errors of law
b. errors of fact in the judgment, which
require no further proceedings
Where a motion for a new trial calls for the

decision of any question of fact the court may
hear evidence of such motion by affidavits or
otherwise
Section 6. Effects of granting a new trial
or reconsideration.
Effects of granting
reconsideration:
new
trial
or
a. when a new trial is granted on the ground

of errors of law or irregularities committed
during the trial, all proceedings and
evidence not affected by the commission of
such errors and irregularities shall stand,
but those affected thereby shall be set aside
and taken anew. The court may, in the
interest of justice, allow the introduction of
additional evidence
b. when a new trial is granted on the ground
of newly discovered evidence, the evidence
already taken shall stand, and the newly
discovered and such other evidence as the
court may, in the interest of justice, allow to
be introduced, shall be taken and
considered together with the evidence
already in the record
c. In all cases, when the court grants new trial
or reconsideration, the original judgment
shall be set aside and a new judgment
rendered accordingly.
R E M E D I A L
L A W
Page 113 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The effect of the granting of a new trial is

not to acquit the accused of the crime of
which the judgment finds him guilty, but
precisely to set aside said judgment so that
the case may be tried de novo as if no trial
had been before, for the purpose of
rendering a judgment in accordance with
the law, taking into consideration the
evidence to be presented during the second
trial.
L A W
court, although the offended party had not

appealed from said award, and the party who
sought a review of the decision was the accused.
Section 2. Where to appeal.
General Rule:
Any party may appeal from a final judgment
or order, except if the accused would be
placed thereby in double jeopardy
Requisites of Newly-Discovered Evidence
But:
The Supreme Court has established the
invariable ruling that the prosecution
cannot appeal from a judgment wherein
the accused is acquitted for the reason that
he is exposed for the second time to the
danger of being punished for the same
offense. Nor does certiorari lie to restore a
criminal case, which has been terminated by
the acquittal of the accused.
1) the evidence was discovered after the trial;

2) such evidence could not have been
discovered and produced at the trial with
reasonable diligence; and
3) that it is material, not merely cumulative,
corroborative or impeaching, and is of such
weight , that, if admitted, will probably
change the judgment (Lenido Lumanog, et.
al vs. G.R. 142065, September 7, 2001).
Role of Private Prosecutor in Appeals

A private prosecutor in a criminal case has
no authority to act for the People of the
Philippines before a court on appeal. It is
the governments counsel, the Solicitor
General, who appears in criminal cases or
their incidents before the Supreme Court. At
the very least, the Provincial Fiscal himself,
with the conformity of the Solicitor General.
An order granting a new trial is

interlocutory and controllable by certiorari
or prohibition at the instance of the
prosecution, as the new trial might result in
a judgment of acquittal from which the
prosecution can no longer appeal.
RULE 122
APPEAL
Section 1. Who may appeal.
Appeal - a proceeding for review by which the
whole case is transferred to the higher court for
a final determination

Appeal is not an inherent right of convicted

person. The right of appeal is and always
has been statutory.
Only final judgments and orders are
appealable.
Right to Appeal the Civil Award:

The civil award in a criminal case may be
appealed by the private prosecutor on behalf
of the offended party or his successors. The
adequacy of the award may be challenge on
the ground that is not commensurate with
the gravity of the injuries sustained as a
result of the offense committed by the
accused.
The accused may not, on appeal by the

adverse party, be convicted of a more
serious offense or sentenced to a higher
penalty to justify the increase in the civil
indemnity.
Effect of an appeal:
Section 3. How appeal taken.
An appeal in a criminal case opens the whole

case for review and this includes the review of
the penalty, indemnity, and the damages
involved. Consequently, on appeal, the
appellate court may increase the penalty,
indemnity, or the damages awarded by the trial
How appeal is taken:

a. Appeal to the RTC or to the CA in
cases decided by the RTC in the
exercise of its original jurisdiction: by
notice of appeal filed with the court which
rendered the judgment or final order
R E M E D I A L
L A W
Page 114 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
appealed from and by serving a copy thereof

upon the adverse party.
b. Appeal to the CA in cases decided by

the Regional Trial Court in the exercise
of its appellate jurisdiction: be by petition
for review under Rule 42.
L A W
The fact that no copy of the notice of appeal

in a criminal case is served upon the adverse
party is not fatal to the perfection of the
appeal as long as the notice of appeal had
been filed on time.
Section 5. Notice waived.

c. Appeal in cases where the penalty
imposed by the Regional Trial Court
is
reclusion
perpetua,
life
imprisonment or where a lesser penalty is
imposed for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more, serious
offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
imposed: by notice of appeal to the Court of
Appeals in accordance with paragraph (a) of
this Rule.
d. No notice of appeal is necessary in
cases where the Regional Trial Court
imposed the death penalty. The SC shall
automatically review the judgment as
provided in Section 10 of this Rule.
Transmission of records in case of death
penalty:
In all cases where the death penalty is imposed
by the trial court, the records shall be forwarded
to the Court of Appeals for automatic review
and judgment within twenty days but not earlier
than fifteen days from the promulgation of the
judgment or notice of denial of a motion for
new trial or reconsideration. The transcript
shall also be forwarded within ten days after the
filing thereof by the stenographic reporter.
Error of
Judgment
1. the court may
commit in the
exercise of
jurisdiction
2. reviewable by
appeal
Error of
Jurisdiction
1. renders an order
of judgment void
or voidable
2. reveiwable by
certiorari
The appellee may waive his right to a notice that

an appeal has been taken. The appellate court
may, in its discretion, entertain an appeal
notwithstanding failure to give such notice if
the interests of justice so require.
Section 6. Where appeal to be taken.
An appeal must be filed within 15 days
counted from the promulgation or notice of
the judgment or order appealed from.
The period for appeal is interrupted from
the time the motion for new trial is filed up
to the receipt by the accused of the notice of
the order overruling the motion.
TAKE NOTE! under the recent case of Neypes
vs. CA, after a party filed a motion for new
trial/reconsideration within the period of filing
an appeal which is 15 days. The motion was
denied; the party then has a NEW FRESH 15
day period to file his appeal.
Section 10. Transmission of records in
case of death penalty.
In all cases where the death penalty is imposed
by the trial court, the records shall be forwarded
to the Court of Appeals for automatic review
and judgment within twenty days but not earlier
than fifteen days from the promulgation of the
judgment or notice of denial of a motion for
new trial or reconsideration. The transcript
shall also be forwarded within ten days after the
filing thereof by the stenographic reporter.
Section 12. Withdrawal of appeal.
Before the Transmission of Records:
Section 4. Publication of notice of

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

the record has been forwarded by the clerk of
court to the proper appellate court as provided
by Section 8, in which case the judgment shall
become final.
R E M E D I A L
L A W
Page 115 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
After the Transmission of Records:

The court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a
motion to that effect is filed before the rendition
of the judgment in the case on appeal, in which
case, the judgment of the court of origin shall
become final and the case shall be remanded to
the latter court for execution of the judgment.
Withdrawal is not allowed in case of automatic
review by the Supreme Courrt
oficio for accused on appeal.
Duties of the clerk of the trial court to the
appellant who is confined in prison upon
the presentation of notice of appeal:
1. he shall ascertain from the appellant,
whether he desires the Court of Appeals or
the Supreme Court to appoint an attorney to
defend him de oficio
2. he shall transmit with the record, upon a
form to be prepared by the clerk of the
appellate court, a certificate of compliance
with this duty of the response of the
appellant to his inquiry
Can an accused who failed to appeal
benefit from the acquittal on appeal of
his co-accused?
Yes, pursuant to Section 11 (a), Rule 122 of the
New Rules on Criminal Procedure which states
that an appeal taken by one or more of several
accused shall not affect those who did not
appeal, except insofar as the judgment of the
appellate court is favorable and applicable to
the latter. Hence, the acquittal of Usana and
Lopez based on reasonable doubt should benefit
movant Escao notwithstanding the fact that he
withdrew his appeal (People vs. Julian Escao
et. al. G.R. Nos. 129756-58. January 19, 2001).
Rule X, Revised Internal Rules of the

Sandiganbayan: Review of Judgments
and Final Orders
SECTION 1. Method of Review.
General Rule:
A party may appeal from a judgment or final
order of the Sandiganbayan imposing or
affirming a penalty less than death, life
imprisonment or reclusion perpetua in criminal
cases, and, in civil cases, by filing with the
Supreme Court a petition for review on
certiorari in accordance with Rule 45 of the
1997 Rules of Civil Procedure.
Exception:
Where the judgment or final order of the
Sandiganbayan, in the exercise of its original
jurisdiction, imposes the penalty of life
imprisonment or reclusion perpetua or where a
lesser penalty is imposed involving offenses
committed on the same occasion or which arose
out of the same occurrence that gave rise to the
more serious offense for which the penalty of
death, reclusion perpetua of life imprisonment
is imposed, the appeal shall be taken by filing a
notice of appeal with the Sandiganbayan and
serving a copy thereof to the adverse party.
Automatic Appeal:
Whenever the Sandiganbayan in the exercise of
its original jurisdiction imposes the death
penalty, the records shall be forwarded to the
Supreme Court for automatic review and
judgment within five (5) days after the fifteenth
(15th) day following the promulgation of the
judgment or notice of denial of a Motion for
New Trial or Reconsideration. The transcript
shall also be forwarded within ten (10) days
after the filing thereof by the stenographic
reporter.
R E M E D I A L
L A W
Page 116 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Death penalty:
See Table 4
MTC
MCTC
MTCC
MeTC
L A W
Public officer
below Salary
Grade 27
See Table 5
Rule 40
RTC
Original
jurisdiction
Sandiganbayan
Yes
SC
CA
See Table 6
For Notice
of Appeal
See Table 2
For MR or
MNT
See Table 3
No
Review with the CA
See Table 6
Table 1: Appeal in the Municipal Trial Court (MTC), Municipal Circuit Trial Court (MCTC), Municipal
Trial Circuit Courts (MTCC), and Metropolitan Trial Court (MeTC).
M TC
15 days
Failure to file appeal, decision final and

executory
NOTICE OF APPEAL
5 days
Serve copy to adverse party
NO
dismissed
Withdrawal of Appeal before

Judgment becomes final
transmittal of records
end
COC (MTC) transmit orig. record to RTC
N
15 days
COC (RTC) notify parties

of such fact
File memoranda/
brief
NO
YES
RTC decides.
Basis: record
of the case &
memoranda
RTC decides. Basis: record of the

case only
Appeal to
CA/SB
YES - See Table 7
Table 2: Procedure in the Municipal/Metropolitan Trial Court
R E M E D I A L
L A W
Page 117 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
O
t
o
P
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
MTC
Motion for Reconsideration
or Motion for new trial
Notice of motion to the

prosecutor
yes
Resolution of
Question of Fact
Hear evidence
to prove facts
No
yes
no
New trial /
new judgment
Petition for review on

certiorari under Rule 45
Grant?
Table 3: Motion for Reconsideration or Motion for New Trial
RTC
Death
penalty
Elevate case
to SC for
review
Remand
Automatic review
by CA
Yes
Reverse
modify
Remand to
RTC
File MR
Granted
Affirm
End
Denied
Affirm death penalty
Petition for review for certiorari Rule 45

Table 4: Procedure of Appeal When Death Penalty is Imposed.
R E M E D I A L
L A W
Page 118 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
RTC
Death
penalty
No
A I D
I N
Notice of
appeal to
the RTC
w/in 15 days
except
habeas
corpus = 2
days
R E M E D I A L
L A W
YES - See Table 7
Appeal
to SC
No = End
YES - See Table 7

Serve notice to
adverse party
E
N
D
3
0
RTC may dismiss

motu propio or
motion upon noncompliance to
requirements
File MR
w/in 15
days
No = End
d
a
y
s
New trial Yes

N
o
Motion to
withdraw
appeal
CA/Sandiganbayan will decide

case
Forward transcript to CA w/compliance to requirements
COC (CA) notify parties of such fact
hearing &
receive
evidence
by CA or
refer trial to
RTC
Filing of briefs by the parties
Table 5: Procedure of Appeal When Death Penalty is Denied

Direct appeal to SC by Rule
45 or extraordinary remedy by
Rule 65
RTC
Gen. rule: 15 days but extendable

for another 15 days and can further
be extended for another 15 days due
to compelling reasons
Petition for review to

the CA
Failure to comply w/ requirements,
ground for dismissal
Proof of service
of the petition
File comment on
the petition w/in 10
days
Dismiss petition if
without merits
w/in 10 days
CA may give due

course
Require to file memoranda or set oral

arguments w/in 15 days
If appeal, Rule 45 to SC
End
If no appeal = end
Decide case upon

filing of last
pleading or
memorandum
Table 6: Petition for Review with the Court of Appeals

R E M E D I A L
L A W
Page 119 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
CA/Sandiganbayan
Gen. rule: 15 days but

can be extended for
30 days due to
justifiable reasons
Petition for review on certiorari to SC
Dismissal of appeal
1. Failure to comply w/
requirements
2. Appeal w/out merits
CA may give
due course
SC will Decide
case upon filing
of last pleading
or memorandum
Require to file
memoranda w/in 15
days
Table 7: Procedure of Appeal with the Court of Appeals (CA) or Sandiganbayan
RULE 123
PROCEDURE IN THE MUNICIPAL
TRIAL COURTS
PROCEDURE IN THE COURT OF

APPEALS
oficio for the accused.
Section 1. Uniform Procedure.

Procedure
to
be
observed
in
Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial
Courts:
They shall all observe the same procedure as in
the Regional Trial Courts except:
a. where a particular provision expressly or
impliedly
applies
only
to
the
Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial
Courts or Regional Trial Courts
b. In criminal cases governed by the Rules
on Summary Procedure in Special Cases
adopted on August 1,1 983 and revised
on November 15, 1991.
RULE 124
Requisites before an accused can be

given a counsel de oficio on appeal:
a. that he is confined in prison
b. without counsel de parte on appeal
c. signed the notice of appeal himself
Exceptions to the requisites:
An accused-appellant not confined to prison
can have a counsel de oficio if requested by him
in the appellate court within 10 days from
receipt of the notice to file brief and the right
thereto is established by affidavit
Section 3. When brief for the appellant
to be filed.
Brief - literally means a short or condensed
statement. The purpose of the brief is to present
to the court in concise form the points and
R E M E D I A L
L A W
Page 120 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
questions in controversy, and by fair argument

on the facts and law of the case, to assist the
court in arriving at a just and proper
conclusion.
L A W
seek relief from the court as he is deemed to

have waived the same and he has not standing
therein.
Section 9. Prompt disposition of cases.
Section 7. Contents of briefs.

Unlike the procedure in civil cases, it has

been held that it is not essential for the
accused to make assignment of errors in his
brief, as on appeal, the whole record of the
case is submitted to and reviewable by the
appellate court.
Issues which were never raised in the
proceedings before the trial court cannot be
considered and passed upon on appeal.
If the Court of Appeals chooses not to hear the

case, the Justices composing the division may
just deliberate on the case, evaluate the
recorded evidence on hand and then decide it.
Section 10. Judgment not to be reversed
or modified except for substantial error.
Section 8. Dismissal of appeal for

abandonment or failure to prosecute.
Grounds for dismissal of appeals:
a. Failure on the part of the appellant to file
brief within the reglementary period, except
when he is represented by a counsel de
oficio;
b. Escape of the appellant from prison or
confinement;
c. When the appellant jumps bail; or
d. Flight of the appellant to a foreign country
during the pendency of the appeal
Dismissal of Appeal; Need of Notice to
Appellant:
The Court of Appeals may dismiss motu propio
or on motion by appellee an appeal for failure
on the part of the appellant to file his brief on
time, but it must have a notice served upon the
appellant of the action to be taken by said court
before dismissing motu propio the appeal.
Effect
of
Escape
of
Abandonment of Appeals:
It is discretionary for the appellate court

whether to order a hearing of the case before it
or decide the appeal solely on the evidence
submitted to the trial court.
Accused;
If the convict escapes from prison or

confinement or refuses to surrender to the
proper authorities, jumps bail or flees to a
foreign country he is deemed to have
abandoned his appeal and the judgment of the
court below becomes final.
In that case, the accused cannot be afforded the
right to appeal unless he voluntarily submits to
the jurisdiction of the court or is otherwise
arrested within 15 days from notice of the
judgment against him. While at large, he cannot
The reversal of judgments entered in the court

below is prohibited, except for prejudicial error
that which tends to prejudice a substantial
right of a party to the proceedings.
Section 12. Power to receive evidence.
Other powers of the Court of Appeals:
a. try cases and conduct hearings;
b. receive evidence; and
c. perform all acts necessary to resolve factual
issues raised in cases:
1) falling within its original and appellate
jurisdiction;
2) including the power to grant; and
3) conduct
new
trials
or
further
proceedings.
Trials or hearings in the Court of Appeals
must be continuous and must be completed
within three months, unless extended by the
Chief Justice.
Section 13. Certification or appeal of
case to the Supreme Court
Whenever the Court of Appeals finds that

the penalty of death should be imposed, the
court shall render judgment but refrain
from making an entry of judgment and
forthwith certify the case and elevate its
entire record to the Supreme Court for
review.
Where the judgment also imposes a lesser

penalty for offenses committed on the same
occasion or which arose out of the same
R E M E D I A L
L A W
Page 121 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
occurrence that gave rise to the more severe

offense for which the penalty of death is
imposed, and the accused appeals, the
appeal shall be included in the case certified
for review to, the Supreme Court.
In cases where the Court of Appeals imposes

reclusion perpetua, life imprisonment or a
lesser penalty, it shall render and enter
judgment imposing such penalty. The
judgment may be appealed to the Supreme
Court by notice of appeal filed with the
Court of Appeals.
CERTIORARI (Rule 65) or HABEAS

CORPUS (Rule 102).
RULE 125
PROCEDURE IN THE SUPREME COURT
Section 1. Uniform Procedure.
A case may reach the Supreme Court in the
following manner:
a. automatic review
b. ordinary appeal
c. petitioner for review on certiorari
Section 14. Motion for new trial.

Motion for new trial based on Newly Discovered
Evidence may be filed at any time after the
appeal from the lower court has been perfected
and before the judgment of the appellate court
convicting the accused becomes final.
Section
16.
reconsideration.
Rehearing
New questions cannot be presented for the

first time on a motion for rehearing,
especially where they are inconsistent with
positions taken on the original hearing, or
waived on the original submission of the
case.
A motion for reconsideration of its

judgment or final resolution shall be
resolved by the Court of Appeals within 90
days from the time it is submitted for
resolution, and no 2nd motion for
reconsideration for the same party shall be
entertained.
Sec. 18. Application of certain rules in
civil to criminal cases.
The corresponding amendment was made

pursuant to the changes introduced under the
1997 Rules of Procedure.
Effect of direct appeal to the Supreme

Court on question of law in criminal
cases
or
A re-hearing is not a matter of right but a

privilege to be granted or not, according as
the court sees fit, the matter being solely
within its discretion.
Rule 47 (Annulment of Judgments of Final

Judgment and Resolutions) DOES NOT
APPLY TO CRIMINAL CASES. The
appropriate remedy for lack of
jurisdiction or extrinsic fraud is
L A W
A direct appeal to the Supreme Court on

questions of law in criminal cases in
which the penalty imposed is not death or
life imprisonment precludes a review of
the facts.
Cases involving both questions of law and
fact come within the jurisdiction of the
Court of Appeals.

APPEALS TO THE SUPREME COURT
NOT A MATTER OF RIGHT; but a matter of
sound judicial discretion on the part of the
Supreme Court. The prescribed mode of appeal
is by certiorari. The findings of fact of the
appellate court are conclusive on the Supreme
Court.
When certain material facts and circumstances
had been overlooked which if taken into
account, would after the result in that they
would introduce an element of reasonable
doubt which would entitle the accused to
acquittal.
Section 2. Review of decisions of the
Court of Appeals.
Question of law - when the doubt or
difference arises as to what the law is on a
certain state of facts. It must not involve an
examination of the probative value of the
evidence presented by the litigants or any of
them.
R E M E D I A L
L A W
Page 122 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Question of fact - when the doubt or

difference arises as to the truth or the falsehood
of alleged facts
Exceptions to the rule that finds of fact of

the Court of Appeals is conclusive upon
the Supreme Court:
1. when the conclusion is a finding grounded
entirely on speculation, surmises or
conjectures
2. when the inference made is manifestly
absurd, mistaken or impossible
3. when there is grave abuse of discretion in
the appreciation of facts
4. when the judgment is premised on a
misapprehension of facts
5. when the findings of fact are conflicting
6. when the Court of Appeals in making its
findings went beyond the issues of the case
and the same is contrary to the admissions
of both appellant and appellee
7. when
certain
material
facts
and
circumstances had been overlooked which,
if taken into account would after the result
as it would give rise to reasonable doubt to
acquit the accused.
Section 3. Decision if opinion is equally
divided.
A criminal case shall be reheard by the

Supreme Court. When the Court en banc is
equally divided in opinion or the necessary
majority cannot be had and no decision is
reached, the conviction of the lower court
shall be reversed and the accused acquitted.
L A W
According to the Constitution, only the

Supreme Court en banc may modify or
reverse a doctrine or principle of law or
ruling laid down by the Court in a decision
rendered en banc or in division.
RULE 126
SEARCH AND SEIZURE
Section 1. Search warrant defined.

Elements of search warrant:
a. order in writing
b. signed by the judge in the name of the
People of the Philippines
c. commanding
a peace officer to
search personal property
d. bring the property before the court
NATURE OF SEARCH WARRANTS
Search warrants are in the nature of criminal
process and may be invoked only in furtherance
of public prosecutions. Search warrants have no
relation to civil process or trials and are not
available to individuals in the course of civil
proceedings, nor for the maintenance of any
mere private right
GENERAL WARRANT: A process which
authorizes the search and seizure of things, in a
general manner, without specifying or
describing them with particularity, like the
equipment, paraphernalia, communications,
records, publications, documents, instruments,
items, supplies, and other evidence in
connection with the violation of an offense.
WARRANT OF ARREST
SEARCH WARRANT
1. order directed to the peace officer to execute

the warrant by taking the person stated therein
into custody that he may be bound to answer
for the commission of the offense.
2. does not become stale
1. order in writing in the name of the RP signed by the judge

and directed to the peace officer to search personal
property described therein and to bring it to court. (sec. 1)
3. may be served on any day and at any time of

day or night. (sec. 6, rule 113).
3. to be served only in daytime unless the affidavit alleges

that the property is on the person or in the place to be
searched. (sec. 8)
2. validity is for 10 days only (sec. 9)
4. upon probable cause to be determined personally by the judge after examination in writing and under oath in
the form of searching answers and questions.
5. only issued if there is a necessity of placing
accused under immediate custody.
5. sworn statements and affidavits of complainant and

witnesses must be submitted to court.
R E M E D I A L
L A W
Page 123 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Test to determine particularity:

L A W
searched, the place may be anywhere in the

Philippines.
o The amendment modifies the
Malalaon guidelines which
allows any judge to issue a
search warrant prior to the
filing of a criminal action, and
even if one had already been
filed, any judge for compelling
reasons may still issue a search
warrant.
When the description therein as specific as

the circumstances will ordinarily allow
When the description express a conclusion
of fact- not of law which the warrant officer
may be guided in making the search and
seizure.
When the things described are limited to
those which bear direct relation to the
offense for which the warrant is being
issued.
Section 3. Requisite for issuing search

warrant.
Sec. 2. Court where application for

search warrant shall be filed.
Kinds of property to be seized:

Rules for Application of Search Warrant
Under the foregoing amendment, a search

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

2. proceeds or fruits of the offense
3. the means used or intended to be used for
committing an offense
PROBABLE
CAUSE
facts
and
circumstances which could lead a reasonable,
discreet and prudent man to believe that the
property subject of an offense are in the place
sought to be searched.
Requisites for the issuance of a valid
search warrant:
a. probable cause
b. which must be determined personally by the
judge himself after oath and affirmation and
not by the applicant or any other person
c. the judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under
oath, the complaint and any witness he may
produce, on facts personally known to them
d. the probable cause must be in connection
with one specific offense
e. the warrant issued must particularly
describe the place to be searched and the
persons or things to be seized
f. the sworn together with the affidavits
submitted by witnesses must be attached to
the record.
The requirement of probable cause to be
determined by a judge, does not extend to
deportation proceedings.
R E M E D I A L
L A W
Page 124 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Reason for requiring that no search

warrant shall issue for more than one
specific offense:
It would place the sanctity of the domicile

and the privacy of communication and
correspondence at the mercy of the whims,
caprice or passion of peace officers.
Reason of requiring that a search

warrant must particularly describe the
place to be searched and the persons or
things to be seized:
To limit the things to be seized to those, and

only those, particularly described in the
search warrant to leave the officers of the
law no discretion regarding what articles
they shall seize, to the end that
unreasonable searches and seizure may
not be made, that abuses may not be
committed. Therefore, no other property
than those described in the search warrant
may be taken thereunder.
L A W
b. when it expresses a conclusion of fact by

which the warrant may be guided; or
c. when the things described are limited to
those which bear a direct relation to the
offense for which the warrant is issued.
Section 9. Time of making search.
The warrant must direct that it be served in the
day time, unless the affidavit asserts that the
property is on the person or in the place
ordered to be searched, in which case a
direction may be inserted that it be served at
any time of the day or night.
Section 10. Validity of search warrant.

A search warrant cannot be used everyday

for ten days and for a different purpose each
day.
After the articles for which the warrant was
used have been seized the same warrant
cannot be used as authority to make another
search
Section 6. Issuance and form or search

warrant.
Section 13. Search incident to lawful

arrest.
An application for a search warrant is

heard ex-parte.
It is neither a trial nor a part of the trial. The

examination or investigation, which must be
under oath may not be in public. It may be even
held in the secrecy of the chambers. It must be
under oath and must be in writing.
Manner on how a judge should examine
a witness to determine the existence of
probable cause:
a. the judge must examine the witnesses
personally
b. the examination must be under oath
c. the examination must be reduced to writing
in the form of searching questions and
answers
When may a search warrant be said to
particularly describe the thing to be
seized:
a. the description therein is as specific as the
circumstances will allow;
A person lawfully arrested may be searched

for dangerous weapons or anything, which
may be used as proof of the commission of
an offense, without a search warrant.
Cases where warrantless searches and

seizures valid:
a.
b.
c.
d.
search of moving vehicles

consented search without a warrant
seizure of evidence in plain view
enforcement of customs law, except in
dwelling house
e. search based on probable cause under
extraordinary circumstances
1) stop and frisk
2) exigent
and
emergency
circumstances
The remedy for questioning the validity of a

search warrant can only be had in the court
that issued it, not in the sala of another
judge of concurrent jurisdiction.
Waiver of legality and admissibility:
R E M E D I A L
L A W
Page 125 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Objection to the legality of the search warrant

as to the admissibility of the evidence obtained
or deemed waived where no objection of the
search warrant was raised during the trial of the
case nor to the admissibility of the evidence
obtained through said warrant.
L A W
Judge may order the quashal of a warrant

after the goods had been seized pursuant to
it and the prosecution is using the goods as
evidence (Solid Triangle Sales Corp. vs.
Sheriff of RTC QC Br. 93, et. al., G.R.
144309, November 23, 2001).
Search operation conducted in the presence

of the occupant of the premises with only
one witnesses valid. (Yousef Al-Ghoul, et. al.
vs. Court of Appeals, PP, G.R. No. 126859).
Total Exclusionary Rule:

Excludes as inadmissible in evidence those that
were illegally seized in violation of the
provisions of the Constitution applies a
restraint directed only against the government
and its agencies tasked with the enforcement of
the law. It could only be invoked against the
state to whom the restraint against the arbitrary
and unreasonable exercise of power is imposed.
Section 14. A motion to quash a search
warrant or to suppress evidence; where
to file.
GENERAL RULE:
A motion to quash a search warrant or to
suppress evidence may only be filed and acted
upon only by the court where the action is
pending.
EXCEPTION:
If no criminal action has been filed, the motion
may be filed in and resolved by the court that
issued the search warrant.
EXCEPTION to the EXCEPTION:
If the criminal case is subsequently filed in
another court and the motion to quash is
still not resolved by the issuing court, the
motion shall not be resolved by the former
court unless compelling reasons warrant its
resolution by the latter court.
Filing of motion to quash is without

prejudice to any proper recourse to the
appropriate higher court by the party
aggrieved. All grounds and objections then
available, existent or known shall be raised
in the original or subsequent proceedings
for the quashal of the warrant, otherwise
they shall be deemed waived.
In view of the foregoing amendment, it
seems that the OMNIBUS MOTION RULE
is no longer applicable because the motion
to quash or motion to suppress evidence is
now filed in one court,
Rule 127
PROVISIONAL REMEDIES IN
CRIMINAL CASES
Section 1. Availability of provisional
remedies.
Nature of Provisional Remedies
a. Those to which parties litigant may resort
for the preservation or protection of their
rights or interests and for no other purposes
during the pendency of the action.
b. They are applied a pending litigation for the
purposes of securing the judgment or
preserving the status quo, and in some cases
after judgment, for the purpose of
preserving or disposing of the subject
matter.
The requisites and procedure for availing of
these provisional remedies shall be the same
as those for civil cases.
The provisional remedies under this rule are
proper only where the civil action for the
recovery of civil liability ex delicto has not
been expressly waived or the right to
institute such civil action separately is not
reserved in those cases where reservation
may be made.
Kinds of provisional remedies:
a.
b.
c.
d.
e.
Attachment
Injunction
Receivers
delivery of personal property
support pendente lite
Section 2. Attachment.
R E M E D I A L
L A W
Page 126 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
It was held by the Supreme Court that the

public prosecutor has the authority to apply
for preliminary attachment as may be
necessary to protect the interest of the
offended party, particularly considering that
the corresponding civil liability of the
culprits is to be determined therein, no
reservation having been made of the right to
enforce it in a separate civil action.
SPECIAL PROCEEDINGS
Special Proceeding a remedy by which a

party seeks to establish a status, a right or a
particular fact. (Rule 1, Section 3)
ACTION
A formal demand of
ones right
Governed by ordinary
rules prescribed by
court or by law
supplemented by
special rules
Formal pleadings are
required
PROCEEDING
Remedy for the
establishment of a
right, status or fact
Governed by special
rules supplemented by
ordinary rules
Usually, no formal
pleadings are required
Rules in ordinary action shall be applicable

in special proceeding in the absence of
special provisions.
Usually no formal proceedings are required,

unless the statute so provides. The remedy is
generally granted upon an application or
motion. (Hagans v. Wislizenus, 42 Phil
880)
PROCEDURE IN SETTLEMENT
PROCEEDINGS
Probate of the Will
if any (Rule 75-76)
RULE 72
SUBJECT MATTER AND
APPLICABILITY OF GENERAL RULES
Sec. 1. Subject matter of special
proceedings:
Issuance of Letters
Testamentary/Administration
(A special administrator may
be appointed) Rule 77-80
(SEG-TAR-HHC-VJC-DC)
1. Settlement of Estate of deceased persons;
2. Escheat;
3. Guardianship and Custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas Corpus;
9. Change of Name
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of
minor natural children;
12. Constitution of family home;
13. Declaration of absence and death;
14. Cancellation or correction of entries in the
civil registry
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
Of Properties of the Estate
Distribution of Residue if
any (But this can be
made even before
payment if a bond is filed
by the heirs)
Sec. 2. Applicability of rules of civil

actions.
In the absence of special provisions, the
rules provided for in the ordinary actions shall
be as far as practicable applicable in special
proceedings.
ORDINARY
L A W
SETTLEMENT OF ESTATE OF
DECEASED PERSONS
ESTATE
SPECIAL
R E M E D I A L
L A W
Page 127 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
the mass of property, rights and assets left

by the decedent. (Limjoco vs. Intestate
of Fragante, 80 Phil. 776)
a juridical entity that has a personality of its
own independent of the heirs and is
considered a person. (Nazareno vs. CA,
343 SCRA 637, 2000)
it is an indispensable party, the executor or
administrator merely a representative, and
shall be deemed to be the real party in
interest. (Papa vs. A.U. Valencia and
Co., Inc., 284 SCRA 643, 1998)
RULE 73
VENUE AND PROCESS
L A W
PRINCIPLE OF EXCLUSIONARY RULE

The court first taking cognizance of the
settlement of the estate exercises jurisdiction to
the exclusion of other courts.
EXCEPTION
Estoppel by Laches
NB: Jurisdiction under Rule 73 Sec 1 does NOT
relate to jurisdiction per se but to venue. It is
not an element of jurisdiction but of procedure,
therefore institution in the court where the
decedent is neither an inhabitant or have his
estate may be waived (Uriarte vs. CFI)
TWO KINDS OF SETTLEMENT
1. EXTRAJUDICIAL SETTLEMENT
(RULE 74, Section 1)
2. JUDICIAL SETTLEMENT
Testate or
Intestate Proceedings
instituted in the country where decedent
has his residence
Sec. 1.Where estate of deceased persons

settled.
a. Deceased is an INHABITANT of the
PHILIPPINES at the time of death,
whether citizen or alien:
In the RTC of the province where the
decedent RESIDES at the time of death
GENERAL RULE: Probate court cannot

determine issue of ownership
b. Decedent is an INHABITANT of a
FOREIGN COUNTRY at the time of
death:
EXCEPTIONS:
1. Provisionally,
ownership
may
be
determined for the purpose of including
property in inventory without prejudice to
its final determination in a separate action
or
2. When all the parties are heirs and they
submit the issue of ownership to the probate
court provided the rights of third parties
are not prejudiced (Bernardo vs. CA)
In the RTC of ANY PROVINCE in which

the estate/s is/are located
Meaning of Resides
The term resides means the personal,
actual or physical habitation of a person, actual
place of residence of place of abode. It signifies
physical presence in a place and actual stay
thereat. It does NOT mean legal residence or
domicile. (Garcia-Fule vs. CA, 74 SCRA
189)
SCOPE OF JURISDICTION
Probate courts are courts of limited
jurisdiction. It may only determine and rule
upon issues relating to the settlement of the
estate consisting of the following:
a. administration of the estate
b. liquidation of the estate
c. distribution of the estate
THE FOLLOWING QUESTIONS MAY BE

DETERMINED
BY
THE
PROBATE
COURT
1. Who are the heirs of the decedent
2. The recognition of a natural child
3. The validity of disinheritance effected by the
testator
4. Status of a woman who claims to be the
lawful wife of the decedent
5. The validity of a waiver of hereditary rights
6. The status of each other
7. All other matters incidental or collateral to
the settlement and distribution of the estate
R E M E D I A L
L A W
Page 128 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
GENERAL RULE: Probate court cannot issue

writs of execution
EXCEPTIONS:
1. To satisfy the contributive share of the
devisees, legatees and heirs when the latter
had entered prior possession over the estate
( Sec. 6 Rule 88)
2. To enforce payment of the expenses of
partition ( Sec. 3 Rule 90)
3. To satisfy the court when a person is cited
for examination in probate proceeding
(Sec. 13, Rule 142)
L A W
or in a special proceeding, which is tried or

heard by, and submitted for decision to, a
competent court. Independently of such an
action or special proceeding, the presumption
of death cannot be invoked, nor can it be made
the subject of an action or special proceeding
(In Re Szatraw, GRN L-1780, 81 Phil.
461, Aug. 31, 1948). In this case, petition is
not for the settlement of the estate of the
alleged absent husband.
RULE 74
SUMMARY SETLEMENT OF ESTATES
Modes of Settlement
Sec. 2 Where estate of property upon

death of spouse settled
Upon the death of either the husband or
the wife, the partnership affairs must be
liquidated in the testate or intestate
proceedings of the deceased husband or wife. If
both died, liquidation may be made in the
testate or intestate proceedings of either.
1. EXTRAJUDICIAL settlement through:

a. Self-adjudication; or
b. Partition
2. JUDICIAL settlement through:
a. Summary settlement of small estates;
b. Probate proceedings; or
c. Partition under Rule 69;
Complaint Against Surviving Spouse

Improper
General Rule: If a person dies, his estate is

submitted to judicial settlement proceeding
Where a complaint is brought against

the surviving spouse for the recovery of an
indebtedness against the conjugal property, any
judgment obtained therein is void. The proper
action should be in the form of a claim to be
filed in the testate or intestate proceedings of
the deceased person (Ventura vs. Militante,
GRN 63145, Oct. 1999, 316 SCRA 226).
Exceptions: Two instances when an estate can

be settled summarily:
Sec. 4. Presumption of Death.

A person shall be presumed dead, for
purposes of settlement of his estate, if absent
and unheard from the periods fixed in the Civil
Code, without prejudice to the rights of the
absentee in case he re-appears.
Presumption of Death Alone Cannot Be
Subject of Action or Special Proceeding
In a case, the Supreme Court affirmed the
trial courts dismissal of a petition for a
declaration that the petitioners husband is
presumptively dead because such presumption
is still disputable.
This presumption may arise and may be
invoked and made in a case either in an action
1. Extrajudicial Settlement Between

Heirs
a. Decedent left NO will;
b. Decedent left no debts, or if there were, all
have been paid;
c. Heirs are all of LEGAL AGE, or if
MINORS, they are represented by their
judicial or legal representatives;
d. Agreement filed with the Register of
Deeds by means of:
Public instrument, if there are more
than one heir, or
Affidavit of adjudication, if there is a
sole heir.
e. Bond filed with the register of deeds in an
amount equivalent to the value of the
personal property involved;
f. Publication in a newspaper of general
circulation.
Oral Partition Valid
R E M E D I A L
L A W
Page 129 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The heirs may partition the state left by the

decedent, which may be oral, whereby each was
given possession of his share, each introduced
improvements on their respective shares and
each having declared his share for tax purposes
and paid such tax pertaining to each.
It would follow that an heir can validly sell
his share to a third person, WITHOUT right of
redemption on the part of the other heirs as
they were no longer co-owners of the whole
property. (Crucillo vs. IAC, 317 SCRA 351,
1999).
Presumption of Absence of Debt
It is presumed that the decedent left no
debts if no creditor files a petition for letters of
administration WITHIN 2 YEARS AFTER
DEATH of decedent. (Sec. 1, Rule 74)
Public Instrument not necessary for the
validity of an extrajudicial settlement
Oral agreement of partition is valid among
the heirs who participated in the extrajudicial
settlement. The requirement under Rule 74 Sec
1 that it must be in public instrument is NOT
constitutive of the validity but merely as an
evidentiary in nature. (Hernandez vs. Anda)
Probate of Will Essential Even if There
are No Debts
Even if there are NO DEBTS, if the heirs
desire that transmission of the property to them
by virtue of the will, the will must first be
probated, and the provisions in the will must
not be disregarded unless said provisions are
contrary to law. (Ventura vs. Ventura, L11609, Sept. 24, 1959)
2. Summary Settlement of Estates of
Small Value
a. The gross value of the estate does not
exceed ten thousand pesos (P10T);
b. Decedent died testate or intestate;
c. Petition filed by an interested person;
d. Notice published at least once a week for
three (3) consecutive weeks in a
newspaper of general circulation;
e. Hearing of petition held not less than one
(1) month nor more than three (3) months
from the date of the LAST publication of
notice;
L A W
f.
Payment of such debts of the estate as the

court shall find to be due;
g. The order of partition or award, if it
involves real estate, recorded in the
register of deeds; and
h. Bond filed with the register of deeds in an
amount to be fixed by the court.
No Bond Required for Real Property;
Reason
No bond is necessary when only real estate
is involved because the lien as recorded is
sufficient security for any claim which may be
filed under Sec 4, that is, when an heir or other
person has been unduly deprived of his lawful
participation in the estate.
Two-year Period to Object; To Whom
Applicable
The following persons are barred from
objecting to an extrajudicial partition after the
two-year prescriptive period to object:
1. To persons who have participated therein;
and
2. When the provisions of Sec. 1, Rule 74 have
been strictly complied with, i.e., that all the
persons or heirs of the decedent have taken
part in the extrajudicial settlement or are
represented by themselves or through
guardians. (Pedrosa vs. CA, 353 SCRA
620, 2001)
Effect of Extrajudicial Partition on Third
Persons
An
EXTRAJUDICIAL
SETTLEMENT
despite the publication SHALL NOT BE
BINDING on any person on any person who has
NOT participated therein or who had NO notice
of death of the decedent. This is because the
procedure in Sec. 1, Rule 74 is an EX PARTE
PROCEEDING. (Sampilo v. Salacup, 103
Phil 70)
A SUMMARY SETTLEMENT is likewise
NOT BINDING upon heirs or creditors who
were not parties therein or had no knowledge
thereof.
Effect of Discovery of Unpaid Debts
R E M E D I A L
L A W
Page 130 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
The discovery of unpaid debts after the

extrajudicial settlement has been effected DOES
NOT IPSO FACTO invalidate the partition. In
such case the creditor may ask for
administration of the estate BUT only so much
of the estate sufficient to pay the debt shall be
subject to such administration. The other
partitioning persons shall not be left
undisturbed in their possession of the
remainder.
3. Accion Reivindicatoria 10 years,

implied trust. (Lajom v. Viola, GRN
47475, May 6, 1942)
HOWEVER, the partitioning heirs CAN

PREVENT such administration by paying the
obligation. As an alternative to administration,
the creditor can file an ordinary action against
the distributees for his claim.
Sec. 1, Rule 74 DOES NOT preclude the

heirs
from
instituting
administration
proceedings even if the estate has no debts or
obligations, if they do not desire to resort for
good and compelling reasons to an ordinary
action for partition.
REMEDIES OF AN EXCLUDED
CREDITOR
4. Annulment on the ground of fraud

Prescriptive period is 4 years (Gerona v.
De Guzman, GRN L-19060, May 29,
1964)
RESORT TO ADMINISTRATION
This section is NOT MANDATORY or

compulsory as may be gleaned from the use of
the word may. (Arcillas v. Montejo 26
SCRA 197)
1. Proceed Against the Bond

The unpaid creditor MAY PROCEED
against the bond by filing, WITHIN 2 YEARS, a
motion for the payment of his credit in the court
wherein such summary settlement was had.
AFTER the lapse of the 2 year period, the
creditor may NO LONGER proceed against the
bond, BUT can institute an ordinary action
against the distributees within the statute of
limitations.
2. Petition for Letters of Administration
3. Action for Rescission Under Art. 1381,
par. 3 on the Ground of Fraud of
Creditors Prescriptive period is four (4
years) from the time of accrual of cause of
action.
Sec. 4. Liability of distributes and estates

Requisites of two-year period lien:
1. persons have taken part or have notice of
extrajudicial partition
2. compliance with the provisions of Sec. 1
Rule 74 (Sampilo vs. CA)
Basis to Compel Settlement the estate
1. undue deprivation of lawful
participation of the estate
2. existence of debts against the estate or
undue deprivation of lawful
participation payable in money
Sec. 5. Period of Claim of Minor.
After the lapse of the two-year period to
object, the following persons may present a
claim within ONE (1) YEAR after their disability
is removed:
a. Minor
b. Mentally incapacitated
c. Person in prison
d. Person outside the Philippines
4. Proceed Against the Real Property

The lien subsists for 2 years.
5. Ordinary Civil Action
REMEDIES OF AN EXCLUDED HEIR
1. Action to compel settlement of estate
2. Action for rescission on the ground of
lesion (Art. 1381, par. 1, NCC)
Prescriptive period is 4 years.
R E M E D I A L
RULE 75
PRODUCTION OF WILL.
ALOWANCE OF WILL NECESSARY
L A W
Page 131 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Probate the act of proving before a

competent court the due execution of a will by a
person possessed of testamentary capacity, as
well as approval thereof by said court
However, probate may also be intestate
where the matters have to do with the
settlement of the estate.
Sec. 1. Allowance necessary, conclusive
as to execution
L A W
Public policy requires that the will of the

testator must be obeyed.
Inasmuch as the probate of wills is required by
public policy, the State could not have intended
to defeat the same by applying thereto the
statute of limitations of action. (Guevara vs.
Guevara, GRN L-5405, Jan. 31, 1956, 98
Phil. 249)
Doctrine of Estoppel Inapplicable in
Probate
NATURE OF PROBATE PROCEEDINGS

1. It is MANDATORY
It is essential because under the law no will
shall pass either real or personal property
unless it is proved and allowed in accordance
with the Rules of Court. (Art. 838, 1st par.,
NCC; Sec. 1, Rule 75)
The law enjoins the probate of a will and
public policy requires it because unless the will
is probated and notice thereof given to the
whole world, the right of a person to dispose of
his property by will may be rendered nugatory.
(Guevara v. Guevara, 74 Phil. 479)
Exception: If the testator should make a
partition of his properties by an act inter vivos,
or by his will such partition shall stand in so far
as it does not prejudice the legitime of the
forced heir. (Mang-Oy vs. CA, 144 SCRA
33)
2. It is a PROCEEDING IN REM
Rule: Notice by publication is the act which
vests the court with jurisdiction.
Exception: HOWEVER, this rule DOES NOT
APPLY in instances when the testator petitions
for the probate of his will, since a newspaper
publication is NOT a requirement here.
The presentation and probate of a will are

requirements of public policy, being primarily
designed to protect the testators expressed
wishes. It would be a non sequitur to allow
pubic policy to be evaded on the pretext of
ESTOPPEL. (Fernandez vs. Dimagiba, L23638, 21 SCRA 428, Oct. 12, 1967)
Res Judicata Applies When Will is
Probated
The probate of a will is conclusive as to its
due execution and extrinsic validity and settles
only the question of whether the testator, being
of sound mind, freely executed it in accordance
with the formalities prescribed by law. (Estate
of Hilario Ruiz vs. CA, 252 SCRA 541,
1996)
Once probated, the principle of res judicata
applies, which means that the testator was of
sound and disposing mind, and freely executed
it in accordance with law, and that the will is
genuine and is not a forgery. (Gallanosa vs.
Arcangel, 83 SCRA 676, 1978)
Rule: Expressly revoked will not admissible to
probate.
Exception: If subsequent will which allegedly
revoked first will is proved to be void.
To satisfy the requirement of due process, heirs,

devisees, legatees and executors are still
required to be notified personally or by mail.
TWO KINDS OF PROBATE
If the testator is the petitioner, notice shall

be sent only to his compulsory heirs. (Sec. 3,
Rule 76)
a. Testator himself petitions the competent

court for the probate of his will.
b. He follows the procedure for the post
mortem of ordinary probate except insofar
as the Supreme Court may impose
3. It is IMPRESCRIPTIBLE
1. Ante-Mortem Probate
R E M E D I A L
L A W
Page 132 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
thereto. (Timbol vs. Cano, L-15445,

April 29, 1961)
additional rules for ante-mortem probates

(Art. 838, 2nd & 3rd par., NCC)
Effect When Will Allowed Ante-Mortem
The fact that the will was allowed during the
lifetime of the testator meant merely that the
partition and distribution of the estate was to be
suspended until the latter's death. (Maloles II
vs. De Los Reyes, GRN 129505, Jan. 31,
2000)
Reasons Why Ante Mortem Probate
Allowed
1. To prevent or minimize fraud, intimidation,
and undue influence;
2. To enable the testator to correct at once
failure to observe legal requirements.
L A W
TESTATE PROCEEDINGS PRECEDES

INTESTATE PROCEEDINGS
Testate Proceedings take precedence over
intestate proceedings. Hence if intestate
proceedings had been filed and a will is
discovered, probate proceedings may be
instituted in a separate proceeding or by
appropriate motion in the same court. Should
the probate be denied, the proceeding shall
continue as an intestacy. (Uriarte v. CFI
May 29, 1970)
WHEN IS JURISDICTION VESTED
1. By SURRENDERING the will
Testator May Still Revoke Will

After a will has been probated during the
lifetime of a testator, it does not necessarily
mean that he cannot alter or revoke the same
before is death.
Should he make a new will, it would also be
allowable on his petition, and if he should die
before he has had a chance to present such
petition, the ordinary probate proceedings after
the testators death would be in order.
(Palacios vs. Palacios, L-12207, Dec. 24,
1959).
II. Post-Mortem Probate (Ordinary
Probate)
Jurisdiction is vested upon the probate

court upon delivery of the will even if the
corresponding petition for its probate has not
yet been filed. (Rodriguez v. Borja 17
SCRA 418)
2. By FILING A PETITION for allowance
of the will.
Effect of Defect in the Petition
No defect in the petition shall render void
the allowance of the will, or the issuance of
letters testamentary or administration with the
will annexed.
Effect of a Counter-Petition
a. Will of the testator is probated after his

death upon the petition of his heirs or other
interested parties.
b. The court:
orders the probate proper to determine
extrinsic validity of the will, or in other
cases, its intrinsic validity
grants letters testamentary or letters
with a will annexed
hears and approves claims against the
estate
orders the payment of the lawful debts
authorizes the sale, mortgage, or any
other encumbrance of real estate, and
directs the delivery of the estate or
properties to those who are entitled
The respondents counter-petition with

a copy of the will attached should be considered
as a petition for the probate of the second will,
the original of which was filed at a later date.
(Salazar vs. CFI, 64 Phil. 785, No. 45642,
Sept. 25, 1937)
DUTY TO PRODUCE WILL
Presentation of a will to the court for
probate is MANDATORY and its allowance by
the court is essential and indispensable to its
efficacy. (Guevara, supra)
The person who has custody of a will or the
EXECUTOR named therein SHALL deliver the
R E M E D I A L
L A W
Page 133 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
will to the COURT WITHIN 20 DAYS AFTER

KNOWLEDGE of the death of the testator.
Effect of Failure to Deliver Will
1. Should he neglect to fulfill his duty to
deliver and he has no excuse satisfactory to
the court, he shall be FINED not more than
P2T. (Sec. 4, Rule 75)
2. However should he neglect without
reasonable cause to fulfill his duty even
when ordered to do so by the court, he may
be COMMITTED TO PRISON and kept
there until he delivers the will. (Sec. 5,
Rule 75)
L A W
Sec. 5 can only be applied when a court is

acting in the exercise of its jurisdiction over the
administration of the estate of the deceased.
Where administration proceedings are not
pending, the court before taking action under
this section should require that there be before
it some petition, information or affidavit of such
character as to make action by the court under
this section appropriate.
The remedy under Sec. 5 is different from
that under Sec. 4. Sec. 4 is a special procedural
offense which must be prosecuted upon
complaint or information as other criminal
offenses. (US v. Chiu, 36 Phil 917)
SECS. 4 and 5, RULE 75

DISTINGUISHED
COMPARISON OF SUMMARY SETTLEMENT OF SMALL ESTATES &

EXTRAJUDICIAL SETTLEMENT
EXTRA JUDICIAL
SETTLEMENT
SUMMARY SETTLEMENT
Court Intervention
Not required.
Involves judicial adjudication.
Value of estate
Immaterial.
Applies only when the gross estate does not

exceed P10,000. This amount is
jurisdictional.
Type of succession
Who may institute
Amount of bond to be
filed
Only in intestate
succession.
Only at the instance and by
the agreement of all the
heirs.
Equal to the value of the
personal property as
established by the
instrument of adjudication.
Allowed in both testate and intestate estates.

Any interested party and even by a creditor of
the estate without the consent of all the heirs.
Determined by the court.
COMPARISON OF EXTRAJUDICIAL PARTITION, PARTITION (RULE 69), PROBATE

PARTITION
(Rule 69)
Expenses
When appropriate
EXTRAJUDICIAL
PARTITION
PROBATE
1. Filing of bond
2. Publication
Most expensive among the 3 modes.

(refer to notice requirements.)
Only if there is no will

and decedent has no
debts.
If there is a will.
R E M E D I A L
L A W
Page 134 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Vulnerability to
attack
A I D
May be attacked
via:
1. Action to annul
on the ground of
fraud (Rule 47)
2. Petition for relief
from judgment
(Rule 38)
3. Action to
impeach judicial
record (Rule 132
sec 29)
I N
R E M E D I A L
L A W
May be attacked via:

1. Rule 47
2. Action for rescission
(Art. 1381 par.1 or
par.3 NCC)
3. Accion Reivindicatoria
(NCC)
RULE 76
ALLOWANCE OR DISALLOWANCE OF
WILL
PROBATE OR ALLOWANCE OF WILLS
An act of proving in a court a document
purporting to be the last will and testament of a
deceased person in order that it may be
officially recognized, registered and its
provisions carried insofar as they are in
accordance with law.
Assignor of Property May Still Be an

Interested Party
Where an heir has validly assigned all his
rights to the estate BEFORE the institution of
settlement proceedings, he no longer has the
requisite interest to participate therein. Where
the assignment is made DURING the pendency
of the settlement proceedings, it requires the
approval of the court for its validity. Once
approved, the assignor remains to be an
interested party. (Duran v. Duran, 30
SCRA 331)
Who May Petition

1. Executor, devisee, legatee named in the will;
2. Any other person interested in the estate
even though not named in the will.
3. TESTATOR HIMSELF during his lifetime.
However in such a situation such approval

is not deemed final until the proceeding over
the estate is closed as such approval can still be
vacated; hence the assignor remains as an
interested party. (Guttierez v. Villegas,
May 31, 1962)
Meaning of INTERESTED PARTY

An interested party is one who would be
benefited by the estate such as an heir or one
who has a claim against the estate such as a
creditor. This interest must be material and
direct not merely indirect or contingent.
(Saguinsin v. Lindayag, GRN L-17759,
December 17, 1962)
Rule: A person who does not have any interest
in the estate has no right to file a petition for
allowance of the will.
Exception: Where the interested persons did
not object to the application, the defect in the
petition would be deemed cured. The filing of
the petition may be considered as having been
ratified by the interested parties. (Eusebio v.
Valmores 97 Phil 163)
Claimant With Contingent Interest Not

an Interested Party
Where the right of a claimant is dependent
on the disallowance of the 2nd will, such
contingent interest DOES NOT make the
claimant an interested party. (Espinosa v.
Barrios, 70 Phil 311)
Objection to the petition on the ground of
lack of legal capacity to institute proceedings
may be barred by waiver or estoppel or rule on
omnibus motion.
CONTENTS OF PETITION
A petition for the allowance of a will must
show so far as known to the petitioner:
1. Jurisdictional facts
a. the decedent left a will;
R E M E D I A L
L A W
Page 135 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
2.
3.
4.
5.
6.
A I D
I N
R E M E D I A L
b. the petition has been filed in the proper

venue.
c. in the case of residents, that he died in
the residence within the territorial
jurisdiction of the court; in case of nonresidents, that he left an estate within
such territorial jurisdiction; and
The will has been delivered to the court.
Names, ages and residences of heirs,
legatees, and devisees;
Probable value and character of the
property of the estate;
Name of person for whom letters are
prayed;
Name of person having custody of will, if it
has not yet been delivered to the court.
L A W
been revoked. (Barreto vs. Barreto, L5830, Jan. 31, 1956).

There are two alternatives for an
acknowledged natural child to prove his status
and interest in the estate of the deceased
parent, to wit: (1) to intervene in the probate
proceeding if it is still open; and (2) to ask for
its reopening if it has already been closed.
(Uriarte vs. Uriarte, GRN L-21938-39,
May 29, 1970)
GROUNDS FOR DISALLOWING A WILL
(Art 839 NCC; RULE 76 SEC 9)
A will is either valid or void. There is no
such thing as voidable will.
Original Will Need Not Be Annexed

Grounds for disallowing a will:
Annexing the original of the will to the
petition is not a jurisdictional requirement. A
copy of the will attached to the petition is
sufficient, provided that the original thereof be
produced in court at the hearing or sufficient
reasons given to justify the non-presentation of
said original and the acceptance of the copy or
duplicate thereof. (Heirs of the Late Jesus
Fran vs. Salas, 210 SCRA 303, 1992)
GENERAL RULE: Probate court can only
determine the intrinsic validity of a will after its
extrinsic validity has been established.
EXCEPTION: When the entire testamentary
disposition is void
EXTRINSIC VALIDITY means due
execution of he will
1. The formalities required by law have not

been complied with;
2. The testator was insane or otherwise
mentally incapable of making a will at the
time of its execution;
3. The will was executed through force or
under duress or the influence of fear, or
threats;
4. The will was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person;
5. The signature of the testator was procured
by fraud;
6. The testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time of affixing his
signature thereto.
The enumeration herein is EXCLUSIVE.
No other grounds can serve to disallow a will.
Effect of Alienation by Testator Prior to
His Death
WHAT IS DUE EXECUTION?

It means that:
-the testator was of sound and disposing mind
at the time the will was made
- no duress fraud or undue influence, etc.
- strictly complied with the formalities required
by law
-will was genuine and not fraudulent
The fact that testator allegedly sold the

lands included in his will, prior to his death, is
not a ground for the disallowance of the will,
nor does it entitle the buyer to oppose the will.
(Sumilang vs. Ramagosa, 21 SCRA 1369,
1969).
Proof of Filiation may be Allowed

Proof of filiation may be given if it is
essential to establish which of the two wills has
Secs. 3, 4. Court to appoint time and

cause notice thereof for proving will.
R E M E D I A L
L A W
Page 136 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Notice by
publication
Notice by mail
Personal service of
notice
A I D
I N
R E M E D I A L
Ante-Mortem
Post-Mortem
Publication is required to
Newspaper publication shall not be
be made for three (3)
made.
consecutive weeks,
previous to the time
appointed.
Deposited in the post
Notice sent only to compulsory heirs in
office 20 days before the
the same manner.
hearing with postage
prepaid and addressed to
heirs, legatees, devisees
and executors who are
residents.
When served within 10 days before the hearing, shall be equivalent
to mailing.
Sec. 5. Proof at hearing.
Notarial Will
Postmortem
Contested
3 subscribing
witnesses and
notary public
AnteMortem
Same
PostMortem
Not
Contested
1 subscribing
witness
L A W
Holographic
Will
PostMortem
3 witnesses
who know
handwriting;
in their
absence,
expert witness
The fact that the attesting witnesses are

not agreed on how the will was executed DOES
NOT necessarily resort in the disallowance of
the will, for the validity of the will is not
dependent upon the united support by all three
attesting witnesses. (Ramirez vs. Butte,
GRN 6604, Jan. 31, 1956).
Sec. 6. Proof of Lost or Destroyed Will.
A lost or destroyed notarial will can be
admitted to probate provided that the following
facts are proved:
a. That the will has been duly executed by the
testator;
b. That the will was in existence when the
testator died, or if not, that it has been
fraudulently or accidentally destroyed in the
lifetime of the testator without his
knowledge.
c. That the provisions of the will are clearly
established by at least 2 credible witnesses.
AnteMortem
burden of
proof is on
contestant
PostMortem
1 witness who
knows
handwriting
AnteMortem
*AnteMortem
testator as
affirmation by
witness is
testator
enough
* see Maloles II vs. De Los Reyes, GRN
129505, Jan. 31, 2000
Oral or Parol Evidence Allowed Only in

Notarial Wills and Not to Holographic
Wills
Ordinary wills may be proved by testimonial
evidence when lost or destroyed. (Gan v. Yap,
GRN L-12190, Aug. 30, 1958, 104 Phil.
509)
In the probate of a holographic will, the
document itself must be produce. A lost
holographic will cannot be probated (supra).
Effect if All Subscribing Witnesses Do

Not Unite
R E M E D I A L
L A W
Page 137 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
However, in the case of Rodelas v.

Aranza (GRN 58509, Dec. 7, 1982), the
court held that the probate of photostatic or
xerox copy of the holographic will may be
allowed.
Sec. 7. Proof when witnesses do not
reside in province.
On motion, the court may:
a. Direct a deposition of one or more of the
subscribing witnesses to be taken elsewhere;
and
b. Authorize a photographic copy of the will to
be made and presented to the witness on his
examination.
Sec. 8. Proof when witnesses are dead,
insane or reside outside the Philippines:
The court may admit testimony of other
witnesses and proof of the handwriting of the
testator and all or any of the subscribing
witnesses.
Sec. 13. Certificate of allowance attached
to proved will. To be recorded in the
Office of Register of Deeds.
The failure to file with the Register of Deeds
a certified copy of the letters of administration
and of the will, and to record the attested copies
of the will, and the allowance thereof by the
court DOES NOT NEGATE the validity of the
judgment or decree of probate or the rights of
the heirs and devisees under the will (Lopez
vs. Gonzaga, L-18788, Jan. 31, 1964).
EFFECTS OF ALLOWANCE OF A WILL
1. It will then be possible for the court to pass
either real or personal estate of the deceased.
2. It shall be conclusive as to its due execution
subject to the right of appeal.
The will cannot be impugned on any
grounds except fraud, in any separate or
independent action or proceeding. But any
interested person may still question the
intrinsic validity of its testamentary provisions.
(Heirs of Fran v. Salas June 25, 1992.)
3. The court shall likewise issue letters
testamentary to the person named as the
L A W
executor therein, provided that he is competent,

accepts the trust, and gives a bond as required
by the Rules. (Sec. 4, Rule 78)
4. It amounts to RES JUDICATA as to its due
execution and genuineness. Thus, even where a
joint will was invalidly admitted to probate,
failure to appeal this decision renders the
judgment final and incontrovertible. (Dela
Cerna v. Potot, 12 SCRA 576).
RULE 77
ALLOWANCE OF WILL PROVED
OUTSIDE OF PHILIPPINES AND
ADMINISTRATION
OF ESTATE THEREUNDER
The evidence necessary for the reprobate or
allowance of will in the country, which has been
probated outside the Philippines are:
1. The due execution of the will in accordance
with the foreign law;
2. The testator has his domicile in the foreign
country and not in the Philippines;
3. The will has been admitted to probate in
such country;
4. The fact that the foreign tribunal is a
probate court; and
5. The laws of a foreign country on probate
and allowance of wills.
Will Probated Abroad Need Not Be
Probated Again in the Philippines
In one sense, there is no need of an ordinary
or usual probate here. What is required is that
there must be a proceeding here to prove that
indeed the will had already been probated
abroad. In other words, the rule is the same as
in proving the existence of a foreign judgment.
(Yu Chengco Vs. Tiaoqui, 11 Phil. 598)
Principle of Processual Presumption
In the absence of proof as to the probate law
and procedure of the foreign country, it is
presumed that the same is similar to that of the
Philippines, in which case the validity of the
foreign will may be decided in accordance with
Philippine law. (Re Estate of Suntay, 95
Phil 500, 1954).
Two types of estate proceedings
R E M E D I A L
L A W
Page 138 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
1. Domicilliary Proceeding the

proceeding instituted in last residence of
the decedent
2. Ancillary Proceeedings the
administration proceedings where he
left his estate
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO
WHOM ISSUED
Executor the person nominated by a testator
to carry out the directions and requests in his
will, and to dispose of the property according to
his testamentary provisions after his death.
Administrator a person appointed by the
court of probate, in accordance with the
governing statutes, to administer and settle
intestate estates when:
a. the decedent dies intestate, or
b. there is a will, the will is either (a) void,
(b) does not appoint any executor, or if
it appoints one, said person is either
incapacitated or unwilling to serve.
There are 2 kinds of administrators: the
regular administrator and the special
administrator.
Regular
Administrator
Appointment is based
upon fitness or
unfitness.
Appointment subsists
until the proceedings
is closed and
terminated.
A co-administrator
can be appointed.
Order of appointment
and removal is
appeallable.
Order of preference in
the appointment
should be followed.
May sell and
encumber real
properties with courts
approval.
Special
Administrator
Appointment is based
upon the sound
discretion of the court.
Appointment is
temporary and
subsists until a regular
administrator is duly
appointed.
The Rules does not
provide such.
Order of appointment
and removal is
interlocutory.
Order of preference
does not apply.
Court not vested with
power to order sale of
real properties but
may order sale of
perishable property.
L A W
Sec. 1. Who are incompetent to serve as

executors.
a. minors;
b. non-residents (N.B. a foreigner may be
appointed as an executor as long as he is a
resident);
c. those who, in the opinion of the court, are
unfit to execute the duties of the trust by
reason of:
1. Drunkenness something more gross than
occasional intoxication must appear in order to
preclude the appointment of the person
entitled. The drunkenness contemplated by this
section is that excessive, inveterate and
continued use of intoxicants, to such an extent
as to render the subject of the habit as unsafe to
entrust with the care of property or the
transaction of business.
2. Improvidence this refers to the lack of
care, foresight or business capacity endangering
the safety of the estate. Capacity for care and
foresight need not be evidenced by the
accumulation of any considerable estate.
Symptoms of improvidence: carelessness,
indifference. Prodigality (spendthrift included
in this term), wastefulness, or negligence in
reference to the care, management and
preservation of property.
3. Want of Understanding or Integrity
Want of understanding amounts to
lack of intelligence or weakness of mind such as
would or might subject one to sinister influence
or coercion against the general interest of the
estate.
Want of integrity accusation should be
certain and grave in its nature, and must be
established by proof which would at least
approach the certainty required for conviction
in a criminal prosecution.
4. Conviction of an offense involving
moral turpitude.
Moral turpitude includes anything done
contrary to justice, honesty, principle of good
morals.
R E M E D I A L
L A W
Page 139 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Rule: The courts cannot add new causes of

disqualification.
Exception: Antagonistic interest may be taken
into consideration when determining the fitness
of a person as an executor or administrator.
Clerk of Court Cannot Be an
Administrator
Clerks of court and other court personnel of
probate courts should not be appointed as
administrators or receivers of estates of
deceased persons so as not to compromise their
objectivity and impartiality in the performance
of their regular functions. (Medina v. CA ,
GRN L-34760, Sept 28, 1973).
Corporation
Administer
or
Association
may
A corporation or association authorized to

conduct the business of a trust company in the
Philippines may be appointed as an executor,
administrator, guardian of an estate, or trustee,
in the like manner as an individual. (Art.
1060, NCC)
Sec. 6. When and to whom letters of
administration granted.
L A W
The basic principles as stated in the case of

Gabriel v. CA (212 SCRA 413) are the
following:
1. In the appointment of the administrator of
the estate of a deceased person, the principal
consideration reckoned with is the interest of
said estate of the one to be appointed.
2. For the benefit of the estate and those
interested therein, more than one administrator
may be appointed since that is both legally
permissible and sanctioned in practice.
3. A mere importunity by some of the heirs of
the deceased, there being no factual and
substantial basis therefore, is not adequate
ratiocination for the removal of the
administrator. Removal of administrators does
not lie on the whims, caprices and dictates of
the heirs or beneficiaries of the estates.
4. The order of preference under Sec. 6 is NOT
ABSOLUTE and may be disregarded for valid
cause.
5. The 30-day period within which the surviving
spouse or the next of kin must apply for letters
of administration is NOT MANDATORY. The
period is waivable under the permissive tone in
par. b of Rule 78.
ORDER OF PREFERENCE
1. To the surviving spouse or next of kin, or
both in the direction of the court, or to such
person as such surviving spouse or next of kin
requests to have appointed, if competent and
willing to serve;
2. To one or more of the principal creditors, if
competent and willing to serve, if those in (a)
above are incompetent or unwilling, or if the
surviving spouse or next of kin, neglects for 30
days after death of decedent to apply for
administration or to request administration to
be granted to some other person;
3. To such other person as the court may select,
if there is no such creditor described in (b)
above.
6. The determination of a persons suitability

for the office of judicial administrator rests to a
great extent, in the sound judgment of the court
exercising the power of appointment and said
judgment is not to be interfered with on appeal
unless the court is clearly in error.
PETITIONS THAT MAY BE FILED TO
ACQUIRE
POWERS
OF
ADMINISTRATION
1. Testate proceedings
a. Petition for Letters Testamentary
b. Petition for Letters of Administration
with Will Annexed
2. Intestate proceedings
BASIC PRINCIPLES IN APPOINTING AN

ADMINISTRATOR
a. Petition for Letters of Administration

LETTERS TESTAMENTARY
R E M E D I A L
L A W
Page 140 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
When a will has been proved and allowed,

the court shall issue letters testamentary
thereon to the person named as executor
therein, if he is competent, accepts the trust,
and gives a bond as required by the Rules.
(Rule 78, Sec. 4)
Such notices shall be deposited in the post

office with prepaid postage at least 20 days
before the hearing. (Secs. 3-4, Rule 76 in
relation to Sec. 3, Rule 79). Personal service
of copies of the notice at least 10 days before the
day of hearing shall be equivalent to mailing.
When all of the executors 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 such
executors may perform the duties and discharge
the trust required by the will. (Rule 78, Sec.
5)
Notice is Jurisdictional
PETITION
FOR
ADMINISTRATION
ANNEXED
The requirement of notice is jurisdictional.

Where no notice is given, the proceeding for the
settlement of the estate is void and should be
annulled. (De Guzman v. Angeles 162
SCRA 347)
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY, PETITION AND
CONTEST
FOR LETTERS OF ADMINISTRATION
LETTERS
OF
WITH
WILL
A person interested in a will opposing the

issuance of letters testamentary to the person/s
named in the will as executor may file a
simultaneous
petition
for
letters
of
administration with the will annexed. (Rule,
79 Sec. 1)
A petition for letters of administration may

be opposed (filing a written opposition) on the
following grounds:
OF
1. Incompetency of the person for whom

letters are prayed therein;
2. The contestants own right to the
administration.
Who may File:

A petition for letters of
administration may be filed by an interested
person (Sec.2, Rule 79).
In his opposition, the contestant may pray

that letters issue to himself, or to any competent
person/s named in the opposition. (Sec. 4,
Rule 79)
PETITION
FOR
ADMINISTRATION
LETTERS
Effect When Petition

Uninterested Person
SETTING OF HEARING; NOTICE

THEREOF
1. A notice of hearing must be given to the
known heirs and creditors of the decedent, and
to any interested party. (Sec. 3, Rule 79)
2. The court shall cause the notice to be
PUBLISHED for 3 SUCCESSIVE WEEKS
previous to the time appointed in a newspaper
of general circulation in the province.
3. Copies of the notice shall likewise be
mailed to the designated or other known heirs,
legatees and devisees of the testator resident in
the Philippines, if such places or residences be
known.
Filed
by
an
A MOTION TO DISMISS may lie on the

ground of lack of legal capacity to institute
proceedings since a petition for letters of
administration must be filed by an interested
person. (Sec. 2, Rule 79)
Issuance for Letters to Issue
For the order for letters of administration to
issue, the following must be shown during the
hearing of the petition:
1. The requirements of notice and publication
were duly complied with;
2. Decedent left no will or that if he did there is
no competent and willing executor.
R E M E D I A L
L A W
Page 141 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
another. (Gonzales vs. Aguinaldo, 190

SCRA 112, 1990).
Effect of Failure to Appear and Claim

Letters
When there are other competent persons
having better right to the administration but
such persons fail to appear when notified and
claim the issuance of the letters to themselves,
letters of administration may be granted to any
applicant. (Sec. 6, Rule 79)
RULE 80
SPECIAL ADMINISTRATOR
Sec. 1. Appointment of special
administrator.
The court may
administrator when:
appoint
special
CO-ADMINISTRATION
The rules expressly allow the appointment
of 2 or more administrators. Co-administration
is resorted to for the following reasons:
1. To have the benefit of their judgment;
2. Where justice and equity demand that
opposing parties be represented in the
management of the estate of the deceased;
3. Where the estate is large and too complexed
to settle;
4. To have all interested persons satisfied and
the representatives to work in harmony;
5. When a person entitled to the administration
of an estate desires to have another competent
person associated with him in the office.
Co-Administration Covers Whole Estate
a. There is delay in granting letters

testamentary or of administration by any
cause including appeal in the probate of a
will.
b. Executor or administrator has a claim
against the estate (Sec. 8, Rule 86).
c. Incumbent executor or administrator is
removed and no one is left to administer.
Court Employees Disqualified
Court employees may not be appointed
special administrators, they being public
officers and their position and the nature of
their duties preclude them from being
appointed special administrators. (Balanay
vs. Martinez, 64 SCRA 452, 1975).
Sec. 2. Powers and duties of special
administrator.
Moreover, when two or more administrators

are appointed to administer separate parts of a
large estate they are not to discharge their
functions in distant isolation but in close
cooperation so as to safeguard and promote the
general interests of the entire estate. (Matute
vs. CA, GRN L-26751, Jan. 31, 1969, 26
SCRA 768).
a. Take possession and charge of goods,

chattels, rights, credits, and estate of the
deceased.
b. Preserve the above for the executor or
administrator afterwards appointed.
c. Commence and maintain suits.
d. Sell perishable and other property as the
court orders sold.
e. Pay debts of the deceased so ordered by the
court.
Effect
of
Conflicts
Administrators
Co-
Ratification by Regular Administrator

Not Needed
A co-administrator may not, as a rule, be

removed for conflicts and misunderstanding
with the other co-administrator, nor because
some heirs did not like him, without
misconduct on his part. Only in case the conflict
becomes irreconcilable and it affects the
interests of the estate that the court must
resolve it by removing one or both and appoint
The special administrator may sell

perishable and other property of the estate with
approval of the court and may pay debts of the
estate upon order of the court, WITHOUT the
necessity of the regular administrator ratifying
the same. (Pabilonia vs. Santiago, 93 Phil.
516, 1953).
Between
R E M E D I A L
L A W
Page 142 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Is appointment of special administrator

appealable?
NO, the same is interlocutory. However,
appointment
of
a
REGULAR
ADMINISTRATOR is appealable because it is a
final order.
RULE 81
BONDS OF EXECUTORS AND
ADMINISTRATORS
Rule: An executor or administrator is required
to post a bond before he enters upon the
execution of his trust.
Exception: An executor may be exempt from
such requirement if the testator expressly stated
such in his will. This implies tremendous trust
and confidence in the executor.
If in his will the testator directs that the
executor serve either (a) without bond or (b)
with only his individual bond, he may be
allowed by the court to give a bond in such sum
and with such surety as the court approves,
conditioned only to pay the debts of the
testator. However in case of a change in the
executors circumstances, the court may require
him to post a further bond with the conditions
named in Sec. 1, Rule 81. (Sec. 2, Rule 81).
When 2 or more persons are appointed
executors, the court may take a separate bond
from each, or a joint bond from all. (Sec. 3,
Rule 81)
Both regular and special administrators are
required to post a bond. However, the
conditions stated therein are different.
L A W
3. To render a true and just account of his

administration within 1 year.
4. To perform all orders of the court.
As long as the probate court retains
jurisdiction of the estate, the bond contemplates
a continuing liability. Hence, for as long as one
is an administrator of the estate, the bond can
be made liable and inevitably, the liability of the
surety subsists as it is co-extensive with that of
the administrator.
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION, AND REMOVAL
OF EXECUTORS AND
ADMINISTRATORS
Effect of Discovery of Will
Mere discovery of a document purporting to
the last will and testament of the decedent after
appointment of an administrator and
assumption that the decedent died intestate
does not ipso facto nullify the letters of
administration already issued by the court. The
will must be proved and allowed before the
letters of administration are revoked.
However, once the will has been proved,
probate proceedings should replace the
intestate proceedings. The administrator who
had been appointed in the intestate proceedings
shall be required to render a final account and
turn over the estate in his possession to the
executor subsequently appointed. This is
understood to be without prejudice that the
proceeding shall continue as an intestacy.
(Uriarte v. CFI, GRN L-21936, May 29,
1970)
REVOCATION
DUTY TO PERFORM THE DUTIES

IMPOSED BY THE BOND
The basic conditions of an executors or
administrators bond and the duties which are
required of the executor or administrator are as
follows:
1. To make and return to the court within 3
months a complete inventory of all goods,
chattels, credits which shall come to his
possession or knowledge;
2. To administer according to these rules or
according to the will of the testator;
Letters of administration are revoked when

it is shown that they should not have been
issued, or they were improperly issued.
In the case of Corrubias v. Dizon (76
Phil 209) the SC held that where the
appointment of an administrator was procured
through false and incorrect representations, the
power of the probate court to revoke the
appointment on that ground is beyond
question.
R E M E D I A L
L A W
Page 143 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
As a general rule, appellate tribunals are

disinclined to interfere with the action taken by
a probate court in the matter of the removal of
an executor or administrator. The exception
however is when a positive error or gross abuse
of discretion is shown.
REMOVAL
Removal of an executor or administrator is
only for grounds which have arisen AFTER
letters of administration were validly issued.
L A W
Acts of the executor or administrator PRIOR

to revocation of the letters remain valid even
after such revocation.
The effect of a revocation is to terminate
the authority of the executor or administrator,
BUT the acts of the executor or administrator,
DONE IN GOOD FAITH PRIOR to the
revocation of the letters will be protected and
similar protection will be extended to rights
acquired under a previous grant of
administration. (Sec. 3; Vda de Bacaling v.
Laguna, 54 SCRA 243)
An administrator or executor can be

removed if he/she:
1. Neglects to render an account and settle the
estate according to law.
2. Neglects to perform an order or judgment of
the court.
3. Neglects to perform a duty expressly
provided by the rules, e.g., giving of bond.
4. Absconds.
5. Becomes insane.
6. Becomes incapable or unsuitable to
discharge the trust, e.g., conflict of interest
with the estate, disbursement of estates
funds without court approval, depositing
money from deceaseds account to personal
account, false representation in securing
appointment, physical disability.
Removal of an administrator should only be
for cause. (Reyes v. Aranzaso 116 SCRA
157)
RESIGNATION
The court may permit the executor or
administrator to resign instead of removing him
for any of the grounds for removal as
enumerated above.
APPOINTMENT OF NEW
ADMINISTRATOR
The new executor or administrator shall
have the following powers:
1. To have like powers as that of the former
executor or administrator, to collect and
settle the estate not administered.
2. To
prosecute
and
defend
actions
commenced by or against the former
executor or administrator;
3. To have execution on judgment s recovered
in the name of the former executor or
administrator.
Where the order of the court appointing a
new administrator in substitution of the
original administrator is pending appeal, and in
the absence of any order for the immediate
execution of the order of substitution, the old
administrator has the right to continue as such
until the appeal is finally disposed of.
RULE 83
INVENTORY AND APPRAISAL.
PROVISION FOR SUPPORT OF FAMILY
Sec. 1. Inventory and appraisal returned
within 3 months.
EFFECTS OF TERMINATION
1. Review of decision terminating
administrator
2. The order of removal is appeallable.
(Borromeo v. Borromeo, 97 Phil. 549)
PRIOR ACTS
Duty of Executor or Administrator

When 3 months after his appointment,
every executor or administrator shall return a
true inventory of all the real and personal estate
of the deceased which has come into his
possession or knowledge but, under the
direction of the court, shall not include:
R E M E D I A L
L A W
Page 144 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
a. wearing apparel of the surviving spouse

and minor children;
b. marriage bed and bedding; and
c. such provisions and articles necessarily
be consumed in the subsistence of the
deceaseds family
Sec. 3. Allowances to Widow and Family
The widow and minor or incapacitated
children, during the settlement of the estate,
shall receive therefrom, under the direction of
the court, such allowances as are provided by
law.
However, such allowances are not limited to
the minor or incapacitated children of the
deceased. The right and duty to support,
especially the right to education, subsists even
beyond the age of majority (Art. 133 in
relation to Art. 194, Family Code).
The education of the person entitled to be
supported referred to in the preceding
paragraph shall include his schooling or
training for some profession, trade or vocation,
even beyond the age of majority. Transportation
shall include expenses in going to and from
school or to and from place of work.
Limitation of the Allowance
The law limits the allowance to the surviving
spouse and to the children and does not extend
it to the deceaseds grandchildren, regardless of
their minority or incapacity. (Estate of
Hilario Ruiz vs. CA, 252 SCRA 541,
1996).
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS AND ADMINISTRATORS
a. To have access to, examine and copy
partnership books and papers for the
deceased partner.
b. To examine and make invoices of
partnership property for the deceased
partner.
c. To maintain in tenantable repair the houses
and other structures and fences, and deliver
them to the heirs or devisees when directed
by the court.
d. To possess and manage the real and
personal estate so long as it is necessary for
L A W
the payment of the debts and expenses of

administration.
The right of an executor or administrator to
the possession and management of the real and
personal properties of the deceased is NOT
ABSOLUTE and can only be exercised so long
as it is necessary for the payment of the debts
and expenses of administration.
SOME RESTRICTIONS ON POWER OF
ADMINISTRATOR/EXECUTOR
1. cannot acquire by purchase even at public or
judicial auction either in person or mediation of
another, the property under administration.
2. cannot borrow money without the authority
of the court
3. cannot speculate with funds under
administration
4. cannot lease the property for more than one
year
5. cannot continue the business of the deceased
unless authorized by the court.
6. cannot profit by the increase or decrease in
the value of the property under administration.
RULE 85
ACCOUNTABILITY AND
COMPENSATION OF EXECUTORS AND
ADMINISTRATORS
Sec. 1. Executor chargeable with all the
estate.
Rule: Every executor or administrator is
chargeable in his account with the whole of the
estate of the deceased which has come into his
possession.
Exceptions:
a. When there is a decrease or destruction of
any part of the estate without his fault.
b. When he settles a claim against the estate
for less than its nominal value, he is
accountable only for the amount he actually
paid.
c. When debts due the deceased remain
uncollected without his fault.
d. When it appears that an action or
proceeding in which the costs are taxed
against him was prosecuted or resisted
without just cause, and not in good faith.
Sec. 5. Accountable for neglect of duty.
R E M E D I A L
L A W
Page 145 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
An executor administrator shall be

accountable when the value of the estate is
lessened or unnecessary cost or interest
accrues, or persons interested suffer loss
because he:
neglects to raise money
unreasonably delays to raise money
neglects to pay over the money he has in
his hands
Sec. 6. What expenses and fees allowed
executor.
Administration Expenses
An executor or administrator is allowed the
necessary expenses in the care, management,
and settlement of the estate. He is entitled to
possess and manage the decedents real and
personal estate as long as it is necessary for the
payment of the debts and the expenses of
administration.
L A W
Rule: The estate shall NOT be liable for

attorneys fees where a lawyer was employed:
a. by the counsel of the estate with the consent
of the executor;
b. by the executor in his personal capacity;
c. as an agent of the heirs;
d. as a usufructuary of the estate;
e. to annul a will at the request of the
executor;
f. in any case for the protection of a particular
person or between beneficiaries thereof or
an executor or administrator and an heir; or
g. where the administrator is himself the
counsel for the heirs, it is the latter who
must pay the attorneys fees;
Exception: Where a lawyer is employed with
respect to those services which were rendered
for the benefit of the estate.
Remedies to Collect Attorneys Fees
If the executor or administrator refuses or
fails to pay attorneys fees, the lawyer has two
remedies:
Compensation of Administrator
Rule: An executor or administrator is entitled
only to a compensation for his services as fixed
under the Rules of Court.
Exception: He is entitled to a
compensation in special cases where
higher
a. the estate is large;

b. the settlement extraordinarily difficult; and
c. a high degree of capacity demonstrated by
him.
The amount of his fee in special cases under
the Rules is a matter in the discretion of the
probate court, which will not be disturbed on
appeal, except for an abuse of discretion. (De
Gala-Sison vs. Maddela, 67 SCRA 478,
1975).
The fact that the incumbent of the office is a
lawyer, or any person especially qualified to
deal with intricate and difficult matters of law
or business, is of itself no reason for increasing
the compensation. (Chung Muy Cos Admr.
Vs. Lim Quioc, GRN 5675, Nov. 26, 1912,
23 Phil. 518).
a. File an independent civil action against the

executor or administrator in his personal
capacity; or
b. File a petition with the probate court before
the proceeding is definitely closed.
If the executor or administrator dies before
the fees could be paid, he may file a claim
against the estate of the deceased executor or
administrator. He has no cause of action, in an
independent suit, against the substitute or new
administrator, the latter not having engaged his
services.
Sec. 8. When executor or administrator
to render account.
Rule: He shall render an account of his
administration within ONE (1) YEAR from the
time of receiving letters testamentary or
administration.
Exception: When the court otherwise directs
or requires.
RULE 86
CLAIMS AGAINST THE ESTATE
Liability for attorneys fees
R E M E D I A L
L A W
Page 146 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Claim
the right to payment
refers to debts or demands of a pecuniary
character which cold have been enforced
against the deceased in his lifetime and
could have been reduced to simple money
judgments
Sec. 2. Time within which claims shall be
filed.
Claims against the estate should be filed
with the court, which should NOT be MORE
than 12 months NOR LESS than 6 months
AFTER the date of the FIRST PUBLICATION of
the notice to file the same.
Effect if Claim Not Filed Within the
Period
Rule: Claims not filed within the prescribed
period are barred.
Exception: A creditor must file his claim at
any time BEFORE an order of distribution is
entered subject to the following conditions:
a. There must be an application therefore;
b. A cause must be shown why the
permission should be granted; and
c. The extension of time required to the
filing of the claim shall NOT EXCEED one
(1) month.
The one-month period is counted from the
order allowing the filing of the claim.
Where a Claim Arises from a Contract
Rule: Claims arising from a contract prescribes
in TEN (10) YEARS.
Exception: Section 2, Rule 86. Therefore, the
claim should be presented within the period
prescribed in said section, otherwise it is barred
even if the prescriptive period of ten years has
not expired. In effect, it supersedes the
prescriptive period of ten years. (Rio y
Compania vs. Maslog, 105 Phil. 452,
1959)
Sec. 5. Claims which must be filed under
the notice.
Claims Against the Estate
L A W
a. Funeral expenses;
b. Expenses for the last sickness of the
decedent;
c. Judgments for money; and
d. All claims for money against the decedent
arising from contract, express or implied,
including purely personal obligations other
than those which have their source in delict
or tort.
Under the Statute of Non-claims, all claims
for money against the decedent, arising from
contract, express or implied, whether the same
be due, not due or contingent, all claims for
funeral expenses and expenses for the last
sickness of the decedent, and judgment for
money against the decedent, must be filed
within the time limited in the notice to
creditors, which must not be more than
twelve(12) nor less than six(6) months after the
date of the first publication of said notice,
otherwise they are barred forever, except that
they may be set forth as counterclaims in any
action that the executor or administrator may
bring against the claimants
Tardy Claims
The court can extend the period within
which to present claims against the estate even
after the period limited has lapsed, but such
extension could only be granted under special
circumstances. The period prescribed in the
notice to creditors was not exclusive; that
money claims against the estate may be allowed
at any time before an order of distribution is
entered, at the discretion of the court, for cause
and upon such terms as are equitable. This
extension of the period shall not exceed one
month form the issuance of the order
authorizing such extension.
Contingent claim
A contingent claim is one which, by its
nature is necessarily dependent upon an
uncertain event for its existence or validity. It
may or may not develop into a valid enforceable
claim and its validity and enforceability
depending upon an uncertain event. A
R E M E D I A L
L A W
Page 147 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
contingent claim does not follow the temporary

orders of dismissal of an action upon which it is
based: it awaits the final outcome thereof and
only the final result can cause its termination.
The rules provide that a contingent claim is to
be presented in the administration proceedings
in the same manner as any ordinary claim and
that when the contingency arises which
converts the contingent claim into a valid claim
the court should then be informed that the
claim had already matured.
Remedy When Defendant Dies Before
Action for Money Against Him
If the defendant dies before any action for a
sum of money can be filed against him, the
plaintiff may prosecute his claim before the
probate court in the state proceedings, and with
respect to DAMAGES for INJURY to person or
for TORT or QUASI-DELICT, he may institute
the necessary action against the executor or
administrator of the deceased.
is barred by prescription without right to

claim or any deficiency.
The third alternative includes extrajudicial
foreclosure sale and its exercise precludes the
recovery of the balance of indebtedness against
the estate and frees the estate from further
liability. (PNB vs. CA, 360 SCRA 370,
2001).
RULE 87
ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
Sec. 1. Actions by and against executor.
The only actions that may instituted against
the executor or administrator independently of
the testate or intestate proceedings are:
a. To recover real or personal property
from the estate;
b. To enforce a lien on the real or personal
property;
c. To recover damages for an injury to
person or property, real or personal; and
d. To recover damages for breach of
contract entered into by the decedent, but
committed by the administrator, which is
personal to him. (Gutierrez vs. BarretoDatu, 5 SCRA 757, 1962).
Sec. 6. Solidary obligation of decedent.

Where the obligation of the decedent is
solidary with another debtor, the creditor
should file the claim against the estate for the
whole amount, without prejudice to the right of
the estate to recover contribution from the
surviving debtor, otherwise the estate is relieved
of liability.
There is nothing, however, in Sec. 6 that
precludes the creditor from filing an action
against the surviving debtor, without filing such
claim against the estate.
Sec. 7. Mortgage debt due from estate.
The following are three (3) distinct,
independent and mutually exclusive remedies
that a mortgagee can alternatively pursue for
the satisfaction of his credit in case the
mortgagor dies:
a. To waive the mortgage and claim the
entire debt from the estate of the
mortgagor as an ordinary claim;
b. To foreclose the mortgage judicially and
prove any deficiency as an ordinary claim;
c. To rely on the mortgage exclusively,
foreclosing the same at any time before it
L A W
Sec. 3. Heir may not sue until share

assigned.
Rule: After the executor or administrator has
been appointed, an heir of the decedent has no
right to file an action to recover title or
possession of the land or for damages done to
such lands belonging to the estate of the
decedent.
Exceptions:
a. Where the executor or administrator fails or
refuses to file such action; or
b. Where there is an order of the court
assigning the land to the heir.
A prior settlement of the estate is not
essential before the heirs can commence any
action originally pertaining to the deceased,
where there is no showing that a judicial
administrator had been appointed
in
proceedings to settle the estate of the deceased.
R E M E D I A L
L A W
Page 148 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
(Heirs of Ignacio Conti vs. CA, 300 SCRA

345, 1998).
RULE 88
PAYMENT OF THE DEBTS OF THE
ESTATE
L A W
Sections 2, 4 and 7 require that in the

application by the administrator or executor for
the sale, mortgage or encumbrance of the
property of the deceased, there be hearing and
written notice to the heirs and other persons
interested.
Rule: A probate court cannot issue a writ of

execution.
If the heirs are of legal age, then they should

be given such written notice; if they are minors,
guardian ad litem should, upon proper
application, be appointed by the court and the
minors should be notified through such
guardian ad litem.
Reason: Its orders usually refer to the

adjudication of claims against the estate which
the executor or administrator may satisfy
without the necessity of resorting to a writ of
execution. The probate court, as such, does not
render any judgment enforceable by execution.
Notice to the surviving spouse is not

sufficient to bind the minors. Without the
requisite notices, the authority to sell, the sale
itself and the order approving it would be NULL
and VOID, insofar as those not given proper
notices are concerned.
Exception: The probate court may issue a writ

of execution ONLY in the following instances:
Reason: The heirs, as the presumptive owners

since they succeed to all the rights and
obligations of the deceased from the moment of
the latters death, are the persons directly
affected by the sale or mortgage and therefore
cannot be deprived of the property EXCEPT in
the manner provided by law. (Maneclang vs.
Baun, 208 SCRA 179, 1992)
Court has No Power to Issue Writ of

Execution to Pay Claims
a. To satisfy the distributive shares of

devices, legatees and heirs in possession of
the decedents assets;
b. To enforce payment of the expenses of
partition; and
c. To satisfy the costs when a person is
cited
for
examination
in
probate
proceedings. (Valera vs. Ofilada, 59
SCRA 96, 1974).
Sale Requires Court Approval; Exception

Sale of land by the executor is not effective
until the probate court shall have approved the
sale, EXCEPT where the sale is:
Sales Not Subject to Legal Redemption

In the administration and liquidation of the
estate of a deceased person, sales ordered by the
probate court for payment of debts are final and
are not subject to legal redemption. Unlike in
ordinary execution sales, there is no legal
provision allowing redemption in the sale of
property for payment of debts of a deceased
person. (Abarro vs. De Guia, GRN 47317,
June 10, 1941, 72 Phil. 245).
RULE 89
SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT
Sale, etc. Requires Hearing and Notice to
Heirs, Otherwise Void
a. with the consent or approval of all the

heirs; and
b. there is no creditor who may be affected
thereby. (Cruz vs. Ilagan, 81 Phil.
554, 1948)
Effect of Registration of Deed
Once the deed of mortgage is recorded in
the proper registry of deeds, together with the
corresponding court order authorizing the
administrator to mortgage the property, said
deed shall be valid as if it has been executed by
the deceased himself. The registration having
been done, Sec. 7 of Rule 86 appropriately
applies, which grants the mortgagee three (3)
distinct, independent and mutually exclusive
remedies that he can alternatively pursue.
R E M E D I A L
L A W
Page 149 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Clerk of Court may be Ordered to

Execute Contract
If the executor is reluctant to execute the
deed as ordered by the court, the deed of
conveyance and delivery of the properties may
be executed by the clerk of court, in which case,
the deed shall be as effectual to convey the
property as if executed by the deceased in his
lifetime. (Blas vs. Munoz-Palma, 4 SCRA
900, 1962).
L A W
in which contending parties are given the

opportunity to adduce their respective evidence.
(Quita vs. CA, 300 SCRA 406, 1998).
Declaration of Heirship
The declaration of heirship must be made in
an administration proceeding and not in an
independent civil action (Heirs of Guido vs.
Del Rosario, 304 SCRA 18, 1999).
If his motion that he be declared an heir of
the deceased is denied, his remedy is to appeal
therefrom, and not to file a separate and
independent action for the purpose. (Solivio
vs. CA, 182 SCRA 119, 1990).
RULE 90
DISTRIBUTION AND PARTITION
OF THE ESTATE
Distribution of Estate
The distribution of the estate can only be made:
a. After all the debts, funeral charges,
expenses of administration, allowance to
the widow, and estate tax have been
made; or
b. Before payment of said obligations only
if the distributees or any of them gives a
bond in a sum fixed by the court
conditioned upon payment of said
obligations within such time as the court
directs, or when provisions is made to
meet those obligations. (Estate of
Hilario Ruiz vs. CA, 252 SCRA 541,
1996).
Payment of Estate Tax Needs No Court
Approval
The approval of the court, sitting in probate,
or as a settlement tribunal over the deceased is
not a mandatory requirement in the collection
of estate taxes. There is nothing in the Tax
Code, and in the pertinent remedial laws that
implies the necessity of the probate or estate
settlement court's approval of the State's claim
for estate taxes, before the same can be
enforced and collected. (Marcos II vs. CA,
GRN 120880, June 5, 1997).
Action to Prove Filiation by Illegitimate

Child
1. Independent action for recognition during
the lifetime of the supposed parent;
2. If he fails to file such independent action
and the supposed parent dies, he has two
alternatives to PROVE his STATUS and
SHARE in the INHERITANCE:
a. Intervene in the probate proceeding if it
is still open; and
b. Ask for the reopening if it has already
been closed. (Vda. De Lopez vs.
Lopez, 35 SCRA 75, 1970).
When Probate Court Losses Jurisdiction
The probate court losses jurisdiction of an
estate under administration only:
a. After the payment of all the debts; and
b. Remaining estate delivered to the heirs
entitled to receive the same.
The finality of the approval of the project of
partition by itself alone does not terminate the
probate proceeding. As long as the order of the
distribution of the estate has not been complied
with, the probate proceedings cannot be
deemed closed and terminated.
When Controversy Arises Who are Heirs

Remedy of an Excluded Heir
If there is a controversy before the court as
to who are the lawful heirs, such as who is the
legitimate surviving spouse, 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. This
means that there should be notice and hearing,
1. File a motion with the probate court for

delivery to him of his share, if the
proceedings is still open; or
2. File a motion for reopening of the
proceeding, within the prescriptive period,
R E M E D I A L
L A W
Page 150 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
if it had been closed, and NOT to file an

independent action for annulment of the
project of partition.
Where the properties involved are
registered lands and the shares of the heirs
named in the deed of judicial partition have
been distributed to them who in turn have sold
them to third persons, the heir who has been
excluded may file:
a. An independent action to set aside said
partition and to recover his share in the real
property; or
b. Action Reivindicatoria
The action should be filed against the heirs
and the third party who purchased the land. A
reopening of the probate proceeding may no
longer be proper as there is a third party
involved, the purchaser of the land, who is not a
party in the said proceeding.
RULE 91
Escheats
Sec. 1. When and by whom petition filed.
L A W
Sec. 4. When and by whom claim to

estate escheated filed.
Period to File: Within five years from the date
of judgment - under 1014 of the Civil Code,
from date property is delivered
By whom: Any person of interest
To Whom the Property Escheated be
Assigned
a. If personal property, in the municipality or
city where he last resided.
b. If real property, where the property is
situated.
c. If deceased never resided in the Philippines,
where the property may be found.
Can
the
court
convert
proceedings
into
ordinary
proceedings or vice-versa?
escheat
special
No. This is not allowed for the two actions

have different requirements in acquiring
jurisdiction. In special proceedings, publication
is once a week for 3 weeks while in escheat,
once a week for 6 weeks.
3 Instances of Escheats
a. When a person dies without a will or heir
but leaving property in the Philippines.
b. REVERSION PROCEEDINGS Sale in
violation of the Constitutional provision
c. Unclaimed Balance Act
VENUE
a. Settlement of Estate at RTC of the
province in which the deceased last resided.
b. Unclaimed Balance Act at RTC of the
place where DORMANT deposit is deposited.
c. Reversion at RTC of the province where
property is located.
Basis of the States Right to Receive
Property in Escheats
Order of succession under the Civil Code,
the STATE is the last heir of the decedent.
GENERAL GUARDIANS AND

GUARDIANSHIP
GUARDIANSHIP a trust relation of the
most sacred character, in which one person,
called a "guardian" acts for another called
a"ward' whom the law regards as incapable of
managing his own affairs.
Purpose: It is designed to further the ward's
well-being, not that of the guardian. It is
intended to preserve the ward's property as
well as to render any assistance that the ward
may personally require. It has been stated that
while custody involves immediate care and
control, guardianship indicates not only those
responsibilities, but those of one in loco
parentis as well. (Francisco vs. CA, 127
SCRA 371, L-57438)
Note: Guardianship of MINORS is now
governed by the Rule on Guardianship of
Minors (A.M. No. 03-02-05-SC)
Guardianship of other incompetent is still
governed by the provisions of the Rules of Court
R E M E D I A L
L A W
Page 151 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
(Rule 92-97).
L A W
4. By the Secretary of Social Welfare and

Development
5. By the Secretary of Health in the case of the
insane minor who needs to be hospitalized
VENUE OF PROCEEDINGS:
MINOR:
1. If resident Family Court of the province or
city where the minor actually resides
2. If non-resident Family Court of the
province or city where his property or any part
thereof is situated
INCOMPETENT:
1. If resident RTC of the province or city
where the incompetent person resides
2. If non-resident RTC of the province
wherein his property or part thereof is situated
The word "INCOMPETENT" includes persons
suffering the:
a.
b.
c.
d.
Penalty of civil interdiction

Hospitalized lepers
Prodigals
Deaf and dumb who are unable to read and
write
e. Those who are unsound mind even though
they have lucid intervals
f. And persons not being of unsound mind
but by reason of age, disease, weak mind
and other similar causes, cannot without
outside aid, take care of themeselves and
manage their property, becoming thereby
an
easy
prey
for
deceit
and
exploitation.(Sec. 2, Rule 92)
Note: The enumeration is not exclusive.
In the case of Yanco vs. CFI of Manila, (29
Phil. 183), spendthrift may be a ground for
guardianship over the property, but it is
indespensable that notice to the said
incompetent be complied with, because what is
at sake is the deprivation of property without
due process.
As far as practicable, the appointment must

be in such order of preference.
Note: The father and the mother shall jointly
exercise legal guardianship over the person and
property of their unemancipated common child
without the necessity of a court appointment. In
such case, this rule shall be suppletory to the
provisions of the Family Code on guardianship.
(Sec. 1, A.M. No. 03-02-05-SC ).
INCOMPETENT:
1. Any relative
2. Friend
3. Other person on behalf of the incompetent
who has no parent or lawful guardian
4. An officer of the Federal Administration of
the United States in the Philippines
5. The Director of Health in case of an insane
person who should be hospitalized or in
favor of isolated leper
GROUNDS FOR OPPOSITION TO THE
PETITION
Any interested person may, by filing a written
opposition, contest the petition on ground of:
1. Majority of the alleged minor,
2. Competency of the alleged incompetent, or
3. Unsuitability of the person for whom letters
are prayed.
PRAYER IN THE OPPOSITION
1. That the petition for guardianship be
dismissed.
2. That letters of guardianship issue to
himself, or to any suitable person named in
the opposition.
FOUR TYPES OF GUARDIAN
1. Legal Guardian parents
2. Judicial Guardian appointed by the court
3. Guardian ad litem appointed by the court
during pending litigation
4. De facto Guardian
WHO MAY PETITION FOR

APPOINTMENT OF GUARDIAN
MINOR:
1. Any relative
2. Other person on behalf of the minor
3. The minor himself if fourteen years of age or
over
SCOPE OF GUARDIANSHIP
1. Over the person of the ward
2. Over his property
R E M E D I A L
L A W
Page 152 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
encumbered and the proceeds thereof put

out interest or invested in some productive
security.
3. Or both
FACTORS TO CONSIDER IN THE
SELECTION OF A SUITABLE GUARDIAN
1. Financial situation
2. Physical,
mental,
and
psychological
condition
3. The sound judgment, prudence and
trustworthiness
4. Moral character and conduct
5. The present and past history of the
appointee
6. The probability of his being able to exercise
the powers and duties of guardian for the
full period during which guardianship will
be necessary. (Francisco vs. CA, 127
SCRA 371)
Additional Qualifications for
Guardianship of Minor
1. Relationship of trust with the minor
2. Lack of conflict of interest with the minor
3. Ability to manage the property of the minor
TIME AND NOTICE OF HEARING
When a petition for the appointment of a
general guardian is filed , the court shall fix a
time and place for hearing the same, and shall
cause reasonable notice thereof to be given to
the persons mentioned in the petition,
including the minor if 14 years of age or over,
or the incompetent himself, and may direct
other general or special notice thereof to be
given.
BONDS OF GUARDIANS
Before a guardian appointed enters upon
the execution of his trust or letters of
guardianship issue, he shall give a bond, in such
sum as the court directs.
GROUNDS FOR SELLING AND
ENCUMBERING PROPERTY OF WARD
1. When the income of an estate under
guardianship is insufficient to maintain the
ward and his family, or to maintain annd
educate the ward when minor.
2. When it appears that it is for the benefit of
the ward that his real estate or some part
thereof be sold or mortgage or otherwise
L A W
Note: The petition must be verified; if the court

finds that sale or encumbrance is necessary or
beneficial to the ward, the court shall make an
order directing the next of kin of the ward and
all persons interested in the estate to appear at
a reasonable time and place therein specified to
show cause why the prayer of the petition
should not be granted.
Sale of the ward's realty by the guardian
without autority from the court is VOID. Under
the law, a parent acting merely as legal
administrator of the property of his child does
not have the power to dispose of or alienate the
property of said minor without judicial
approval. (Lindain vs. CA)
GENERAL POWERS AND DUTIES OF
GUARDIAN
1. Have the care and custody of his ward and
the management of his estate or the
management of the estate only, as the case
may be.
2. Must pay the ward's just debt out of his
personal estate and the income of his real
estate if sufficient, if not, out of the sold and
encumbered property.
3. To settle accounts, collect debts and appear
in action for ward.
4. Manage the estate of the ward frugally and
the proceeds thereof be applied for the
maintenance of the ward.
5. May be authorized by court to join in
partition proceedings after hearing .
6. The guardian may file a complaint against
anyone whom is suspected of having
embezzled, concealed or conveyed away the
any property of the ward.
7. Must render to the court an inventory of the
estate of his ward within three months after
his appointment and annually after such
appointment; such inventories and accounts
shall be sworn to by the guardian.
SPECIAL RULES FOUND IN THE RULE
ON GUARDIANSHIP OF MINORS
Sec. 4. Grounds for petition The grounds
for the appointment of a guardian over the
person or property or both, of a minor are the
R E M E D I A L
L A W
Page 153 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
following:
a. Death, continued absence or incapacity
of his parents;
b. Suspension, deprivation or termination
of parental authority;
c. Remarriage of his surviving parent, if
the latter is found unsuitable to exercise
parental authority; or
d. When the best interest of the minor so
require.
Sec. 6. Who may be appointed guardian
of the person or property or both of a
minor
In default of parents or a court-appointed
guardian, the court may appoint a guardian of
the person or property or both of a minor,
observing as far as practicable, in the following
order of preference:
a. the surviving grandparent in case several
grandparent survive , the court shall select
any of them taking into account all relevant
considerations;
b. the oldest brother or sister of the minor
over twenty-one years of age, unless unfit or
disqualified;
c. the actual custodian of the minor over
twenty-one years of age, unless unfit or
disqualified; or
d. any other person , who in the sound
discretion of the court, would serve the best
interest of the minor.
Sec. 9. Case Study Report
The court shall order a social worker 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. The
social worker may intervene on behalf of the
minor if he finds that the petition for
guardianship should be denied.
Sec. 12. When minor resides outside the
Phils. but has property in the Phils.
Any relative or friend of such minor or
anyone interested in his property, in expectancy
or otherwise, may petition to the Family
Court for the appoinment of a guardian over
his property.
L A W
minor by publication or any other means as

the court may deem proper. The court may
dispense with the presence of the non-resident
minor.
Sec. 16. Bond of Parents.
If the market value of the property or
the annual income of the child exceeds
P50,000.00, the parent concern shall furnish
a bond in such amount as the court may
determine, but in no case less than 10% of the
value of such property or annual income, to
guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the Family Court of the
place where the child resides, or, if the child
resides in a foreign country, in the Family
Court of the place where the property or any
part thereof is situated.
The petition shall be docketed as a
summary special proceeding, in which all
incidents and issues regarding the performance
of the obligations of general guardian shall be
heard and resolved.
RULE 98
TRUSTEES
TRUST a legal relationship between one
person having an equitable ownership in
property and another person owning the legal
title to such property, the equitable ownership
of the former entitling him to the performance
of certain duties and exercise of certain powers
by the latter.
Sec. 1. Where trustee appointed.
A trustee necessary to carry into effect the
provisions of a will or written instrument shall
be appointed by the RTC in which the will was
allowed, if a will be allowed in the Phils.,
otherwise by the RTC of the province in which
the property or some portion thereof, affected
by trust is situated.
Sec. 2. Appointment and powers of
trustee under will. Executor of former
trustee need not administer trust.
Notice of hearing shall be given to the

R E M E D I A L
If a testator has omitted in his will to

L A W
Page 154 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
appoint a trustee in the Phils. and if such

appointment is necessary to carry into effect the
provisions of the will, the RTC may, after notice
to all persons interested, appoint a trustee.
No person succeeding to a trust as executor
or administrator of a former trustee shall be
required to accept trust.
TRUSTEE MUST FILE BOND
Before entering on the duties of his trust, a
trustee shall file with the clerk of court a bond
on the amount fixed by the judge of the said
court. A trustee who neglects to file such bond
shall be considered to have declined or resigned
the trust.
However, the court may exempt a
trustee under a will from giving a bond when:
1. The testator has directed or requested such
exemption; and
2. When all persons beneficially interested in
the trust, being of full age, request the
exemption.
Such exemption may be cancelled by the court
at anytime and the trustee required to forthwith
file a bond.
REMOVAL OR RESIGNATION OF THE
TRUSTEE (Sec. 8)
The RTC may, upon petition of the parties
beneficially interested and upon due notice to
the trustee and hearing, remove a trustee if:
1. Such removal appears essential in the
interests of the petitioners,
2. If the trustee becomes insane,
3. Incapable of discharging his trust,
4. If evidently unsuitable therefore.
Note: The trustee may resign his trust if it
appears to the court proper to allow such
resignation.
PROCEEDINGS FOR SALE OR
ENCUMBRANCE OF TRUST
If the sale or encumbrance or the property
held in trust is necessary or expedient, the court
having jurisdiction of the trust may, on petition
and after due notice and hearing, order such
L A W
sale or encumbrance, the application of the

proceeds thereof will best effect the object of the
trust.
Note: The relation of an agent to his principal
is fiduciary and it is an elementary and very old
rule that in regard to a property forming the
subject matter of the agency, an agent is
estopped from acquiring or asserting a title
adverse to that of the principal. His position is
analogous to that of a trustee and he cannot,
consistently with the principles of good faith, be
allowed to create in himself an interest in
opposition to that of his principal or cestui que
trust. (Thomas vs. Pineda, G.R. No. L2411)
If a person obtains legal title to the property
by fraud or concealment , courts of equity will
impress
upon
the
title
so-called
"constructive trust" in favor of the
defrauded party. The defense of prescription
cannot be availed of regardless of the lapse of
time. (Bacairen vs. Diones, G.R. NO. L8013)
RULE 99
ADOPTION AND CUSTODY OF MINORS
Note: The provisions of the Rules of Court on
Adoption have been amended by the Domestic
Adoption Act of 1998 and the Inter-Country
Adoption Act of 1995.
ADOPTION a proceeding where by fiction of
law paternity or filiation is cleared
What Does the Court Determine in
Adoption Cases?
1. Capacity of the adopters, and
2. Whether the adoption would be the best
interest of the child
DOMESTIC ADOPTION ACT OF 1998
(RA 8552)
Under this Act, one of the declared policies
is that the State shall ensure that every child
remains under the care and custody of his
parents and only when such efforts prove
insufficient that adoption by an unrelated
person may be considered.
Definition of Terms:
R E M E D I A L
L A W
Page 155 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
1. Voluntarily committed child one

whose parents knowingly and willingly
relinquish parental authority over him in
favor of the DSWD.
2. Involuntarily committed child one
whose parents, known or unknown, have
been permanently and judicially deprived of
parental authority over him due to
abandonment, neglect or incompetence to
discharge parental responsibilities.
3. Foundling refers to a deserted or
abandoned infant or child whose parents,
guardians or relatives are unknown; or a
child committed to an orphanage or
charitable institution with unknown facts of
birth and parentage and registered in the
Civil Register as a foundling.
4. Abandoned child one who has no
proper parental care or guardianship or
whose parents have deserted him for a
period of at least six (6) continuous months
and has been judicially declared as such.
5. Dependent child one who is without
parent, guardian or custodian or one whose
parents, guardian or custodian for good
cause desires to be relieved of his care and
custody and is dependent upon the public
for support.
6. Neglected child one whose basic needs
have been deliberately not attended to or
inadequately attended to, physically or
emotionally, by his parents or guardian.
7. Child-caring agency refers to an agency
duly licensed and accredited by the DSWD
that provides 24-hour residential care
services
for
abandoned,
orphaned,
neglected
or
voluntarily
committed
children.
8. Supervised trial custody refers to the
period of time during which a social worker
oversees the adjustment and emotional
readiness of both adopters and adoptee in
stabilizing their filial relationship.
9. Simulation of birth the tampering of
the civil registry to make it appear in the
birth records that a certain child was born to
a person who is not his biological mother,
thus causing such child to lose his true
identity and status.
WHO MAY ADOPT
L A W
c. of Good moral character;

d. Not convicted of any crime involving moral
turpitude;
e. Emotionally and psychologically capable of
rearing children;
f. Sixteen (16) years older than adoptee; and
g. can Support and care for his children.
Note: The requirement of the 16-year
difference between the adopter and the adoptee
may be waived if the adopter is:
a. the biological parent of the adoptee; or
b. the spouse of the adoptees parent
2. Any Alien (LCG-NESS-CLAD)
In addition to the above requirements, the
alien must show that:
a. he is Certified by his diplomatic or consular
office to have legal capacity to adopt in his
country;
b. Living in the Phils. for three (3) continuous
years prior to the petition to adopt;
c. Adoptee is allowed by his government to
enter his country as his adopted child; and
d. his country has Diplomatic relations with
the Phils.
Note: The requirement on residency and
certification of aliens qualification to adopt
may be waived when:
1. The adoptee is a former Filipino citizen who
seeks to adopt a relative within the 4th
degree of consanguinity or affinity; or
2. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse.
The said alien is also NOT required to
complete the 6-month trial custody.
Note: The guardian may also adopt with
respect to the ward after the termination of the
guardianship and clearance of his/her financial
accountabilities.
WHO MAY BE ADOPTED (BILL BAN)
1. Any Filipino Citizen (LCG-NESS)

a. of Legal age;
b. of full Civil capacity and legal rights;
R E M E D I A L
L A W
Page 156 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
1. one Below eighteen (18) years of age

judicially declared available for adoption;
2. Illegitimate child by a qualified adopter;
3. Legitimate child of one spouse by the other
spouse;
4. one of Legal age regardless of civil status
who has been considered and treated by the
adopters as their own child since minority;
5. one whose Biological or adoptive parents
have died;
6. one whose Adoption has been previously
rescinded; or
7. one Not disqualified by law or these rules.
Rule: Husband and wife must jointly adopt.
Exceptions:
1. If one spouse seeks to adopt the legitimate
child of one spouse by the other spouse; or
2. If one spouse seeks to adopt his own
illegitimate child, provided that the other
spouse consents thereto; or
3. If the spouses are legally separated from
each other.
WRITTEN
CONSENT
OF
FOLLOWING IS REQUIRED
4. An amended birth certificate shall be issued.

The original birth certificate shall be
stamped cancelled and shall be sealed in
the Civil Registry records.
Note: The new birth certificate to be issued to
the adoptee shall not bear any notation that it is
an amended issue.
The petition may also pray for a change of
name of the child.
EFFECTS OF ADOPTION
1. Adopter will exercise parental authority.
2. All relations between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter.
3. Adoptee shall be considered legitimate child
of adopter for all intents and purposes.
4. Adopters shall have reciprocal rights of
succession
without
distinction
from
legitimate filiation.
THE INTER-COUNTRY
ADOPTION ACT OF 1995
THE
1. Adoptee, if ten (10) years of age or over.

2. Biological parent of the child, if known.
3. Legitimate and adopted sons/daughters ten
(10) years of age or over, of the adopter(s)
and adoptee, if any.
4. Illegitimate sons or daughters, ten (10)
years of age or over, of the adopter if living
with said adopter and the latters spouse, if
any.
5. Spouse, if any, of the person adopting or to
be adopted.
PROCEDURE
1. No petition for adoption shall be set for
hearing unless a licensed social worker has
made a CASE STUDY of the adoptee,
adopter and the biological parents.
2. No petition for adoption shall be finally
granted until the adopters have been given
by the court a supervised trial custody
period for at least six (6) months.
3. After the publication of the order of hearing,
and no opposition has been interposed to
the petition, a decree of adoption shall be
entered stating the name by which the child
is to be known.
L A W
INTER-CONTRY ADOPTION refers to

the socio-legal process of adopting a Filipino
child by a foreign national or a Filipino citizen
permanently residing abroad.
An application to adopt a Filipino child shall be
filed either with the Philippine RTC having
jurisdiction over the child, or with the Board,
through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective
adoptive parents, which application shall be in
accordance with the requirements as set forth in
the Rules to be promulgated by the Intercountry Adoption Board.
WHO MAY ADOPT
Any alien or Filipino citizen permanently
residing abroad who is:
1. At least twenty-seven (27) years of age and
at least sixteen (16) years older than the
child to be adopted; and
2. Possesses the same requirements as stated
under RA 8552.
R E M E D I A L
L A W
Page 157 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
WHO MAY BE ADOPTED Only a legallyfree child may be the subject of inter-country
adoption.
USE OF SURNAME OF THE ADOPTER
BY THE ADOPTEE
Rule: The adoptee may use the surname of the
adopter.
Exception: The minor cannot bear adopter's
surname as a married woman, for her husband
has not joined in the petition for adoption and
cannot join it, because he has children by a
previous marriage.
It is held that, "For one thing, to allow the
minor to adopt the surname of the husband of
the adopter (where the husband had not),
would mislead the public into believing that she
(adoptee) has also been adopted by the
husband, which is not the case. And when later,
questions of successional rights arise, the
husband's consent to the adoption might be
presented to prove that he has actually joined in
the adoption. (Suarez vs. Republic, L20914 December 24, 1965)
Under the Domestic Adoption Act of

1998, the adopter can NO longer revoke the
adoption, he can merely disinherit the adoptee
in accordance with the provisions of the Civil
Code.
Under the petition for adoption, the effect
retroacts as to date of filing thereof. In
revocation, it relates only as to the date of the
judgment. Hence, in revocation, vested rights
prior to rescission should be respected.
FOR
REVOCATION
RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
Purpose: For the public welfare, or for the
welfare of the person alleged to be insane.
Venue: The petition shall be filed with the
RTC of the city or province where the person
alleged to be insane is found and, in the case of
minors, with the Family Court of the province
where he actually resides.
Who may File
1. The Director of Health
2. In the case of minors, the Secretary of
Health
RULE ON CUSTODY OF MINORS
AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
CUSTODY OF MINOR
A.M. No. 03-04-04-SC
Effective May 15, 2003
Who may File: A verified petition for the
rightful custody of a minor may be filed by any
person claiming such right. The party against
whom it may be filed shall be designated as the
respondent.
RULE 100
RESCISSION AND REVOCATION OF
ADOPTION
GROUNDS
ADOPTEE
L A W
BY
Where to File: The petition shall be filed with

the Family Court of the province or city where
the petitioner resides or where the minor may
be found.
No
Motion
Exception
to
Dismiss
Allowed;
A motion to dismiss the petition is not

allowed EXCEPT on the ground of lack of
jurisdiction over the subject matter or over the
parties. Any other ground that might warrant
the dismissal of the petition may be raised as an
affirmative defense in the answer.
1. Repeated physical or verbal violence;

2. Attempt against his life or sexual abuse; or
3. Abandonment
Period to File Answer: The answer must be

filed within five days after service of summons
and a copy of the petition.
Unlike in revocation of guardianship,

revocation of adoption is a separate proceeding
from the adoption.
Provisional Order of Custody
R E M E D I A L
After an answer has been filed or after

L A W
Page 158 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
expiration of the period to file it, the court may

issue a provisional order awarding custody of
the minor.
L A W
corpus involving custody of minors shall be

filed with the Family Court.
It may also be filed with:
Order of Preference of Custody

As far as practicable, the following order of
preference shall be observed in the award of
custody:
a. Both parents jointly;
b. Either parent, taking iinto account of
the choice of the minor over seven (7)
years of age and of sufficient
discernment;
c. The grandparent, or if there are several
grandparents, the grandparent chosen
by the minor over seven (7) years of age
and of sufficient discernment;
d. The eldest brother or sister over
twenty-one (21) years of age;
e. The actual custodian of the minor over
twenty-one (21) years of age; or
f. Any other person or institution the
court may deem suitable to provide
proper care and guidance for the minor.
1. The regular court in the absence of the

presiding judge of the Family Court,
provided, however, that the regular court
shall refer the case to the Family Court as
soon as its presiding judge returns to duty;
2. The appropriate regular court in places
where there are no Family Courts;
3. Court of Appeals
4.
Supreme Court
RULE 102
HABEAS CORPUS
Sec. 1. To what habeas corpus extends.
1. Cases of illegal confinement or detention by
which a person is deprived of his liberty;
2. Cases by which the rightful custody of the
person is withheld from the person entitled
thereto
Temporary Visitation Rights The court

shall provide in its order awarding provisional
custody appropriate visitation rights to the noncustodial parent or parents, unless the court
finds said parent or parents unfit or
disqualified.
Hold Departure Order The minor child
subject of the petition shall not be brought out
of the country without prior order from the
court while the petition is pending. The court,
motu proprio or upon application under oath,
may issue ex parte a hold departure order.
Appeal No appeal from the decision shall be
allowed unless the appellant has filed a motion
for reconsideration or new trial within fifteen
(15) days from notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within
fifteen (15) days from notice of the denial of the
motion for reconsideration or new trial and
serving a copy thereof on the adverse parties.
Note: The restraint must be actual, effective

and material. The person need not actually be
confined as long as freedom of action is limited.
(Moncupa vs. Enrile; Villavicensio vs.
Lucban; Toyoto vs. Ramos.)
WRIT OF HABEAS CORPUS a command
directed to the person detaining another,
requiring him to produce the body of the person
detained at a designated time and place, and to
produce and to show cause and to explain the
reason for detention.
The privilege of writ is so sacred that,
according to our CONSTITUTION, it shall not
be suspended except in cases of invasion or
rebellion when public security requires it (Art.
III Sec. 15, 1987 Constitution)
GROUNDS FOR RELIEF
1. Deprivation of any fundamental or
constitutional right
2. Lack of jurisdiction of the court to impose
the sentence
3. Excessive penalty
Important: Habeas Corpus can never be a
substitute for appeal.
Petition for Writ of Habeas Corpus

A verified petition for a writ of habeas
R E M E D I A L
L A W
Page 159 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
The person on bail is not entitled to habeas

corpus because his detention is legal and
technical.
Does voluntary
habeas corpus?
restraint
constitute
As a general rule, NO, EXCEPT when a

person restrained a minor and the petitioner is
the father or mother or guardian or a person
having custody of the minor.
Note: Voluntariness is viewed from the point of
view of the person entitled to custody.
Preliminary Citation issued by the court to
show cause whether or not the writ should be
issued.
Sec. 2. Who may grant the petition.
1. SC or any member thereon
2. CA or any member thereof
3. RTC or any judge thereof
4. MTC - in the absence of RTC judges
L A W
If one is unlawfully imprisoned, court shall

order his discharge but such discharge shall not
be effective until a copy of the order has been
served on the office or person detaining the
prisoner. If person detaining him does not
appeal, the prisoner shall be released.
Sec. 18. When prisoner may be removed
from one custody to another.
1. By legal process.
2. Prisoner is delivered to an inferior officer to
carry to jail.
3. By order of proper court or judge be removed
from one place to another within the Phil. for
trial.
4. In case of fire, epidemic, insurrection or
other necessity or public calamity.
When does the court acquire jurisdiction
over person of respondent?
The writ itself plays the role as summon in
ordinary actions; court acquires jurisdiction
over the person of the respondent by MERE
SERVICE OF WRIT.
Sec. 6. To whom writ directed and what

to require.
Directed to the officer and commands him to:
RULE 103
CHANGE OF NAME
1. Have the body of person before the court.

2. Show cause of the imprisonment or restraint.
No writ can be disobeyed for defect in
form if it sufficiently states:
1. Person in whose custody or under whose
restraint the party imprisoned or restraint is
held, and
2. Court or judge before whom he is to be
brought.
Sec. 13. When the return evidence, and
when only a plea.
If a prisoner is in custody under a warrant
of commitment in pursuance of law or under a
judicial order, the return shall be considered
PRIMA FACIE EVIDENCE OF THE CAUSE OF
RESTRAINT, however it shall only be a plea of
the facts set forth if restraint is by private
authority.
Sec. 15. When prisoner discharged if no
appeal.
Source of Rule: Articles 376 and 421 of the

Civil Code.
Sec. 1. Venue. A person desiring to change
his name shall present petition to RTC of the
province in which he resides.
Sec. 2. Contents of petition. - Petition shall
be signed and verified by person desiring his
name changed or some other person in his
behalf with the following contents:
a. That petitioner is bonafide resident of the
province where petition is filed for at least
three years prior to date of filing
b. All names by which petitioner is known
c. Cause for change of name
d. Name asked for
Grounds for Change of Name:
a. Name is ridiculous, tainted with dishonor
and extremely difficult to write or
pronounce;
R E M E D I A L
L A W
Page 160 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b. Consequence of a change of status, e.g.,

legitimated child; or
c. Necessity to avoid confusion
THE CLERICAL ERROR LAW
(RA 9048, Effective April 22, 2001)
Articles 376 and 421 of the Civil Code is
amended by this law which provides that No
entry in a civil register shall be changed or
corrected without a judicial order, EXCEPT for
clerical or typographical errors and change of
FIRST NAME or NICKNAME.
L A W
2. If the petitioner already migrated to another

place in the Phils., it may be filed with the
Provincial Civil Registrars Office of the place
where the migrant is residing or domiciled.
3. If the petitioner is residing or domiciled
abroad, it may be filed with the nearest
Philippine Consulate.
Important: This petition may be availed for
only once.
Grounds for Change of First Name or
Nickname
Who may File Petition

1. By a person of legal age, having direct and
personal interest which includes the owner
of the record, or his spouse, children,
parents, brothers, sisters, grandparents,
guardian, or any person authorized by law
or by the owner of the document;
2. In case of a minor or physically or mentally
incapacitated, by his spouse, or any of his
children,
parents,
brothers,
sisters,
grandparents, guardians, or other persons
authorized by law.
Where to File: The verified petition may be
filed with
1. The Local Civil Registrars Office of the city or
municipality or with the Office of the Clerk of
the Sharia Court where the record is registered.
1. The first name or nickname is ridiculous,

tainted with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
by that first name or nickname.; or
3. The change will avoid confusion
Note: In granting or denying petitions for
change of name, the question of "proper and
reasonable cause" is left to the sound discretion
of the Court. The evidence presented need only
be satisfactory to the court and not all the best
evidence available. (Uy vs. Rep. of the
Phils., GRN L-22712 November 29, 1965)
DISTINCTION BETWEEN R.A. NO. 9048 AND RULE 103

R.A 9048
Type
of 1.Clerical or
corrections
Typographical errors; 2.first names or
nicknames
Kind
of Summary in nature
proceeding
Grounds
1. the first name or nickname is
ridiculous, tainted with dishonor or
extremely difficult to write or pronounce
2. the new first name or nickname has
been habitually and continuously used by
the petitioner and he has been publicly
known by that first names or nicknames
in the community
3. the change will avoid confusion
R E M E D I A L
Rule 103
Changes or corrections of a substantial and
controversial kind affecting civil status
,nationality, gender or citizenship
Adversary Proceedings
1. when the change results as a legal
consequence as in legitimation
2. sincere desire to adopt a Filipino name to
erase signs of former alienage all in good
faith and not to prejudice anybody
3. when the 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
prejudice public interest
L A W
Page 161 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
RULE 107
ABSENTEES
2.
3.
4.
5.
6.
Declaration of Absence
Purpose to appoint an administrator over
the properties of the absentee. Hence, if with
absentee left no properties, such petition is
unnecessary.
Requisites to File Petition
1. A person disappears from his domicile;
2. His whereabouts is unknown; and
3. He left no agent to administer his property,
or if there is an agent, the power conferred
has expired.
When to Petition
1. After the lapse of two (2) years from his
disappearance or since the receipt of the last
news about the absentee; or
2. After the lapse of five (5) years from such
disappearance, if the absentee has left a
person to administer his property.
Who may File Petition
1.
2.
3.
4.
L A W
Spouse present
Heirs instituted in a will
Relatives who would succeed intestate
Those who have over the absentees
property some right subordinated to the
condition of his death.
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Who may and Where to File Petition
Marriages
Deaths
Legal separations
Judgments of annulments of marriage
Judgments of declaration of nullity of
marriage
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Judicial determination of filiation
14. Voluntary emancipation of a minor; and
15. Changes of names
The civil registrar and all persons who have
or claim any interest shall be made parties.
This Rule applies not only to proceedings
for correction of innocuous or clerical errors but
also to correct substantial errors such as
citizenship, status, and legitimacy. However in
the latter case, it is necessary that the
proceedings be adversarial in nature.
Requisites of Adversarial proceedings
1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded;
2. The order of the hearing must be published;
3. Notice thereof must be given to the Solicitor
General and all parties affected thereby;
4. Opportunity to be heard; and
5. Full blown trial.
NOTE: Proceedings for the correction of
entries should not be considered as establishing
ones status is a manner conclusively beyond
dispute. The status corrected would not have a
superior quality for evidentiary purposes. There
is no increase or dimunition of substantive
right. (Chiao Ben Lim vs. Zosa.)
Any person interested in any act, event,

order or decree concerning the civil status of
persons recorded in the civil register may file a
verified petition wit the RTC of the province
where the corresponding civil registry is
located.
Entries in the Civil Register that may be
Cancelled or Corrected
AN ACT ALLOWING ILLEGITIMATE

CHILDREN TO USE THE
SURNAME OF THEIR FATHER
(RA 9255, Effective March 19, 2004)
This law amended Article 176 of Executive
Order No. 209, otherwise known as the Family
Code of the Philippines.
1. Births
R E M E D I A L
L A W
Page 162 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Under this law, illegitimate children may

use the surname of their father but they shall be
under the parental authority of their mother,
and shall be entitled to support. However,
illegitimate children may use the surname of
their father if their filiation has been expressly
recognized by the father through the record of
birth appearing in the civil register, or when an
admission in a public document or private
handwritten instrument is made by the father.
Provided, the father has the right to institute an
action before the regular courts to prove nonfiliation during his lifetime.
Coverage: It shall apply to all illegitimate
children born before or after the effectivity of
R.A.
9255,
which
includes:
1. Unregistered births;
2. Registered births where the illegitimate
children use the surname of the mother.
Who may File: The father, mother, child if of
age, or the guardian, may file the public
document or Affidavit to Use the Surname of
the Father (AUSF) in order for the child to use
the surname of the father.
Guardian refers to a person lawfully
invested with the power, and charged with the
duty, of taking care of one who, for defect of
age, understanding, or self control, is
considered incapable in administering his own
affairs.
This term also refers to those authorized to
exercise substitute parental authority over the
child in default of parents or a judicially
appointed guardian. This includes:
1. The surviving grandparent;
2. The oldest brother or sister, over 21 years of
age, unless unfit or disqualified; and
3. The child's actual custodian, over 21 years of
age,
unless
unfit
or
disqualified.
Public document Refers to affidavit of
recognition executed by the father such as the
Affidavit of Admission of Paternity or the
Affidavit
of
Acknowledgment.
L A W
AUSF An affidavit to be executed in order to

use the surname of the father. It is a registrable
document.
Where to File
If the public document or AUSF is:
1. Executed within the Philippines at the
Local Civil Registry Office (LCRO) where
the child was born, if the birth occurred
within the Philippines.
2. Executed outside the Philippines at the
LCRO of Manila, if the birth occurred within
the Philippines.
3. Executed within or outside the Philippines
at the LCRO of Manila, if the birth occurred
outside the Philippines.
What to File
1. Certificate of Live Birth with accomplished
Affidavit of Acknowledgement/ Admission
of Paternity at the back;
2. Public document; and
3. AUSF, including all supporting documents
When to Register The public document
not made on the record of birth, or the AUSF
shall be registered within twenty (20) days from
the date of execution at the place where the
birth was registered. Otherwise the procedures
of late registration shall be applied.
Effects of Recognition
1. For Births Not Yet Registered
The surname of the father shall be entered
as the last name of the child in the Certificate of
Live Birth. The Certificate of Live Birth shall be
recorded in the Register of Births.
2. For Births Previously Registered
under the Surname of the Mother
The public document or AUSF shall be
recorded in the Register of Legal Instruments.
Proper annotation shall be made in the
Certificate of Live Birth and the Register of
Births.
The original surname of the child appearing
in the Certificate of Live Birth and Register of
Births shall not be changed or deleted.
R E M E D I A L
L A W
Page 163 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
RULE 103 vs. RULE 108

Change of Name
Correction, Cancellation of Entries
(Rule 103)
(Rule 108)
Petition to be filed in the RTC where
Verified petition filed in the RTC where the corresponding
the petitioner resides
Civil registry is located
Solicitor General must be notified by
Civil registrar concerned is made a party to the proceeding
service of a copy of the petition.
as a respondent.
Petition is filed by person desiring to
By any person interested in any ACT, EVENT, ORDER or
change his name
DECREE
Order for hearing shall be published
Order shall also be published once for three consecutive
once a week for three consecutive
weeks and court shall cause reasonable notice to persons
weeks
named in petition
Service of judgment shall be upon the civil register concerned
6. Expert testimony of one possessing, in

regard to a particular subject, knowledge
not usually acquired by other persons.
EVIDENCE
RULE 128
GENERAL PROVISIONS
KINDS OF EVIDENCE
DEFINITION:
1. Evidence the means, sanctioned by these
rules, of ascertaining in a judicial
proceeding the truth respecting a matter of
fact. (Sec. 1, Rule 128)
1. Depending on its ability to establish the fact

in dispute:
a. Direct that which proves the fact in
dispute without the aid of any inference
or presumption.
2. Evidence the means of proving

3. Proof the effect of evidence
Every evidential question involves the
relationship between the factum
probans and the factum
probandum.
b. Circumstantial proof of facts from

which, taken collectively, the existence
of the particular fact in dispute may be
inferred as a necessary or probable
consequence.
4. Factum Probandum the ultimate fact

(proposition) sought to be established.
It may be ascertained in:

1) pleadings submitted by the parties;
2) pre- trial order
3) issues which are tried with the
express or implied consent of the
parties. (Sec. 5, Rule 10)
Example: In case of arson, that the

witness saw the defendant apply the
torch which lighted the fire.
Such evidence is founded on

experience and observed facts and
coincidences
establishing
a
connection between the known and
proven facts and the facts which are
sought to be proved.
2. Depending on its weight and acceptability:

a. Primary or Best Evidence that
which affords the greatest certainty of
the fact in question.
If a fact is admitted, there is no more

factum probandum because there is
no fact in issue.
b. Secondary or Subtitutionary that

which is necessarily inferior to primary
evidence and shows on its face that
better evidence exists.
5. Factum Probans the material

evidencing the proposition. It is the fact by
which the factum probandum is established.
3. Depending on its NATURE:

R E M E D I A L
L A W
Page 164 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
a. Object (real/physical) that which is

addressed to the senses of the court, as
where the objects are exhibited for the
personal observation of the judge. It is
also called autopic proference
(evidence of ones own senses). (5
Moran)
there is no other proof as to when

such notice was received by the
drawer, then the presumption of
knowledge as provided in Section 2
of B.P. 22 cannot arise, since there
would simply be no way of
reckoning the crucial five-day
period.(Rico vs. People, G.R. 137191,
Nov. 18, 2002)
b. Documentary consists of writing, or

any material containing letters, words,
numbers, figures, symbols or other
modes of written _expression offered as
proof of their contents. (Sec. 2, Rule
130)
c. Cumulative additional evidence of

the same kind bearing on the same
point.
supplied by written instruments or

derived from conversational symbols
and letters by which ideas are
represented on material substances.
c. Testimonial (oral/verbal) consists

of narration or deposition by one who
has observed or has personal knowledge
of that to which he is testifying.
1)
Example: When testimony has been

given by one or more witnesses as to
an assault and other witnesses are
produced to testify to the same state
of facts and to no new fact, the
evidence given by such witnesses is
merely cumulative.
d. Corroborative additional evidence

of a different kind and character tending
to prove the same point.
A witness is reliable when his

answers are prompt, concise,
responsive
to
interrogatories,
outspoken and entirely devoid of
evasion and any semblance of
shuffling. (People vs. Francisco, 74
SCRA 158).
Positive- when the witness affirms
that a fact did or did not occur, it is
entitled to greater weight since the
witness represents of his personal
knowledge the presence or absence
of a fact.
L A W
While cumulative is
evidence of the SAME
character, corroborative
additional
evidence
DIFFERENT kind and
(Jones on Evidence)
additional
kind and
is also
but
of
character.
5. Depending on its QUALITY:

a. Relevant if it has any value in reason
as tending to prove any matter provable
in an action.
2) Negative when the witness states

that he did not see or know the
occurrence of a fact there is total
disclaimer of personal knowledge.
Evidence is relevant when it has a

tendency in reason to establish the
probability or improbability of a fact
in issue. (Sec. 4, Rule 128)
b. Material if it is directed to prove a

fact in issue as determined by the rules
of substantive law and pleadings.
(Wigmore on Evidence)
4. Depending on its DEGREE OF VALUE:

a. Conclusive
that
which
is
incontrovertible or one which the law
does not allow it to be contradicted. It is
insurmountable evidence.
c.
b. Prima facie that which suffices for

the proof of a particular fact, until
contradicted and overcome by other
evidence.
d. Credible- if it is not only admissible

but also believable and used by the court
in deciding a case.
If notice of non-payment by the

drawee bank is not sent to the maker
or drawer of the bum check, or if
Admissible- if it is relevant to the

issue and is not excluded by law or by
the Rules of Court.
6. Depending on its FUNCTION:
R E M E D I A L
a. Rebuttal that which is given to

explain, repel, counteract or disprove
L A W
Page 165 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
facts given in evidence by the adverse

party.
L A W
b. Rule son Summary Pry Procedure in

criminal cases, where the witnesses
admit their affidavits and counteraffidavits, subject only to crossexamination;
b. Sur-rebuttal that which is given to

explain, repel, counteract or disprove
facts introduced in rebuttal.
c. Agrarian cases;
Quantum of Evidence
a. Proof beyond reasonable doubtrequired in criminal cases; does not
mean such degree of proof as excluding
possibility of error, and/or producing
absolute certainty. Moral certainty is
only required, or that degree of proof
which produces conviction in an
unprejudiced mind.
b. Preponderance
of
evidencerequired in civil cases; evidence which is
of greater weight, or more convincing,
than that which is offered in opposition
thereto. (Sec. 2, Rule 133)
c. Substantial evidence- sufficient in
administrative
proceedings;
that
amount of relevant evidence which a
reasonable mind might accept as
adequate to justify a conclusion. (Sec. 5,
Rule 133)
d. Rules regarding the testimony of

witnesses from examinations, etc., in
cases under the MTC (where the parties
merely submit their position papers and
their witnesses affidavits and counteraffidavits.)
Section
3.
EVIDENCE
ADMISSIBILITY
OF
Requisites of Admissibility:
The evidence must be:
a. Relevant- has a logical connection with
the fact in issue;
b. Competent-not excluded by the Rules
on Evidence, the law and the
constitution
Two Axioms of Admissibility
a. Axiom of Relevancy- None but facts
having rational probative value are
admissible;
Types of Rules of Evidence

a. Those established for reasons of public
policy; and
b. Axiom of Competency- All facts

having rational probative value are
admissible, unless some specific rule
forbids. (1 Wigmore)
b. Those established for the protection of

the parties.
TYPES OF ADMISSIBILITY
Rules:
1. GENERAL RULE: the rules of evidence
are applicable to both civil and criminal
cases due to Section 2, Rule 128 and Section
3, Rule 1, 1997 Rules of Civil Procedure.
a. Multiple Admissibility Rule

evidence is relevant and competent for
two or more purposes.
Evidence will be received if it

satisfies all the requirements
prescribed by law in order that it
may be admissible for the purpose
for which it was presented, even if it
does
not
satisfy
the
other
requirements for its admissibility for
other purposes. (5 Moran)
Under the rule of multiple

admissibility o evidence, even if
Consunjis confession may not be
competent as a against his co-
EXCEPTION:
When
the
law
specifically provides otherwise such as
Section 4, Rule 1, 1997 Rules of Civil
Procedure.
2. INSTANCES WHERE RULES
EVIDENCE
DO
NOT
APPLY
JUDICIAL PROCEEDINGS:
OF
TO
a. In a civil case covered by the Rule on

Summary Procedure since there is no
trial;
R E M E D I A L
L A W
Page 166 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
accused Panganiban, being hearsay

as to the latter, or to prove
conspiracy between them without
conspiracy being established by
other evidence, the confession of
Consunji
was,
nevertheless,
admissible as evidence of the
declarants own guilt (People vs.
Yatco, 97 Phil. 941).
b. Conditional Admissibility Rule
evidence that which appears to be
immaterial is admitted by the court
subject to the condition that its
connection
with
other
facts
subsequently to be proved will be
established. (People vs. Yatco, 97 Phil.
940).
A fact offered in evidence may

appear to be immaterial unless it is
connected with other facts to be
subsequently proved. In such a case,
evidence of that fact may be received
on condition that the other facts be
afterwards proved. On failure to
comply with this condition, the
evidence already given shall be
stricken out. (5 Moran)
Example: Wherever hearsay evidence is

erroneously admitted, the adverse party
may be allowed to give evidence of a
statement or other conduct by the
declarant
inconsistent
with
the
declaration thou7gh he had no
opportunity to deny or explain it.
THE
RULES
EVIDENCE
ON
ELECTRONIC
A.M. No. 01-7-01-SC

Effective August 1, 2001
Scope: Unless otherwise provided in this Rule,
it shall apply whenever an electronic document
or electronic data message is offered or used in
evidence.
Coverage: The Rules shall apply to all civil
actions and proceedings, as well as quasijudicial and administrative cases.
c. Curative
Admissibility
Ruleevidence, otherwise improper, is
admitted to contradict improper
evidence introduced by the other party.
(1 Wigmore)
L A W
Improper evidence admitted on one

side without objection, does not give
the other side the right to introduce
in reply the same kind of evidence if
objected to; however, when a plain
and
unfair
prejudice
would
otherwise inure to the opponent, the
court may permit him to use a
curative
counter-evidence
to
contradict the improper evidence
presented. (5 Moran)
TWO CONSIDERATIONS:
R.A. 8792 gave recognition to the

admissibility of electronic documents
and electronic data messages as
evidence. The law says that for
evidentiary purposes, an electronic
document shall be the functional
equivalent of a written document under
existing laws.:
To be admissible must maintained its
integrity, reliability and must be capable
of being authenticated.
Definitions:
1) Electronic Document refers to
information or the representation of
information, data, figures, symbols
or
other
modes
of
written
__expression, described or however
represented, by which a right is
established
or
an
obligation
extinguished, or by which a fact may
be proved and affirmed, which is
received, recorded, transmitted,
stored, processed, retrieved, or
produced electronically.
is
What
Electronic
Document Includes
2. Whether regardless of the objections, the

admission of such evidence will cause a
plain and unfair prejudice to the party
against whom it was admitted.
(a) Digitally signed document; or
1. Whether the incompetent

seasonably objected to ;
evidence
R E M E D I A L
(b) Any print-out or output,

readable by sight or other
means, which accurately
L A W
Page 167 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
reflects the electronic data

message
or
electronic
document.
Note:
An
electronic
signature
or
a
digital
signature is deemed as the
functional equivalent of the
signature of a person on a
written document.
2) Digitally Signed refers to an

electronic document or electronic
data message bearing a digital
signature verified by the public key
listed in a certificate.
6) Asymmetric
or
Public
Cryptosystem a system capable
of generating a secure key pair,
consisting of a private key for
creating a digital signature, and a
public key for verifying the digital
signature.
3) Electronic Data Message refers

to information generated, sent,
received or stored by electronic,
optical or similar means.
For purposes of the Rules on
Electronic Evidence, the term
electronic document may
be used interchangeably with
electronic data message.
4) Electronic Signature refers to
any distinctive mark, characteristic
and/or sound in electronic form,
representing the identity of a person
and attached to or logically
associated with the electronic data
message or electronic document or
any methodology or procedure
employed or adopted by a person
and executed or adopted by such
person with the intention of
authenticating, signing or approving
an electronic data message or
electronic document. It includes
digital signatures.
L A W
7) Ephemeral
Electronic
Communication refers to
telephone
conversations,
text
messages,
chatroom
sessions,
streaming audio, streaming video,
and other electronic forms of
communication the evidence of
which is not recorded or retained.
RULES:
5) Digital Signature refers to an

electronic signature consisting of a
transformation of an electronic
document or an electronic data
message using an asymmetric or
public cryptosystem such that a
person
having
the
initial
untransformed electronic document
and the signers public key can
accurately determine:
(a) whether the transformation
was created using the private
key that corresponds to the
signers public key; and,
(b) whether the initial electronic
document had been altered
after the transformation was
made.
1. A recording of the telephone conversation

or ephemeral electronic communication
may be offered as ephemeral evidence in the
same way as in presenting audio,
photographic or video evidence to the court.
2. Electronic Documents as Functional
Equivalent
of
Paper-Based
Documents: Whenever a rule of evidence
refers to the term writing, document,
record, instrument, memorandum or any
other form of writing, such term shall be
deemed to include an electronic document.
3. The TOTAL EXCLUSIONARY RULE:
Evidence obtained in violation of a
defendants constitutional rights must be
suppressed from the governments case in
chief.
4. The Fruit of the Poisonous Tree / But
For/ Taint Doctrine- posits that all
evidence (the fruit) derived from an illegal
search (the poisonous tree) must be
suppressed, whether it was obtained directly
through the illegal search itself or indirectly
using information obtained din the illegal
search.
R E M E D I A L
Scope of Exclusionary Rule

a) Right
against
unreasonable
search and seizure.
L A W
Page 168 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b) Right to privacy and inviolability

of communication.
purpose
of
secretly
overhearing,
intercepting,
or
recording
the
communication. There must be either:
c) Right under investigation for an

offense.
a. physical interruption through a wiretap,

or
d) Right against self-incrimination.

b. deliberate installation of a device or

arrangement in order to overhear,
intercept, or record the spoken words.
Note: The rule is limited only to

evidence obtained by law enforcers
except as otherwise provided by law.
3. Instances Not Covered by the Act
-oOo-
a. Listening to telephone extension lines.
Anti-Wire Tapping Act (RA 4200)

An Act to prohibit and penalize
Wire-Tapping and other Related
Violations of the Privacy of
Communications, and for other
purpose
This law provides that it shall be
unlawful for any person, not being
authorized by all the parties to any
private communication or spoken word,
to tap any wire or cable, or by using any
other device commonly known as a
Dictaphone
or
dictagraph
or
detectaphone or walkie-talkie or taperecorder,
or
however
otherwise
described.
What
are
Prohibition
Covered
by
the
1) Knowingly possess any tape record,

wire record, disc record or any other
such record, or copies thereof, of any
communication or spoken word; or
b. Telephone party lines.

Section 4. Relevancy; Collateral Matters
Test of Relevancy
1. Every fact or circumstance tending to throw
light on the issue is relevant,
2. Evidence is relevant from which the fact in
issue is logically inferable;
3. Any circumstance is relevant which tends to
make the proposition at issue more or less
probable, or which is calculated to explain
or establish facts pertinent to the inquiry;
4. The test is whether the evidence conduces to
the proof of a pertinent hypothesis, such
hypothesis being one which, if sustained,
would logically influence the issue;
5. Facts are relevant if they fairly tend to prove
the offense charged.
Components of Relevant Evidence
2) Replay the same for any other

person;
3) Communicate the contents thereof
either verbally or in writing; or
4) Furnish
transcriptions
thereof,
whether complete or partial, to any
other persons.
a. Materiality- looks to the relation

between the propositions for which the
evidence is offered and the issues of the
case.
Test of Materiality: Whether the

evidence is offered upon a matter
properly in issue. The question is,
Is this relevant?
Example: Where A sues B on a

written contract, and the only
defense pleaded by B is a denial that
he executed the contract, evidence
offered by him as to a release would
be immaterial, and hence irrelevant.
Rules:
1.
L A W
Any
information
obtained
in
violation of this act shall not be
admissible in evidence in any judicial,
quasi-judicial,
legislative
or
administrative
hearing
or
investigation.
2. Law Limited to Wiretapping Device:

The law refers to a tap of a wire or cable or
the use of a device or arrangement for the
R E M E D I A L
b. Probative Value- the tendency of

evidence to establish the proposition
that it is offered to prove.
L A W
Page 169 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
DEGREE
OF
PROBATIVENESS
REQUIRED: To be relevant, evidence need
not be absolutely determinative of the fact
which it is directed, in other words, it need
not be conclusive. To be relevant, the
evidence must merely help a little.
Example: Flight by no means proves

guilt or makes guilt more likely that
not. Evidence of flight merely makes
guilt somewhat more likely.
and similar purpose. Such evidence is

admissible in both civil and criminal cases.
3. The rule is that when a persons conduct is
in issue the fact that the person engaged in
conduct of the same sort on a different
occasion may be shown as tending to shed
some light on some quality of the conduct in
question such as intent, knowledge, good or
bad faith, malice or other state of mind or
bodily feeling. (1 Jones)
Collateral facts those other than the

facts in issue and which are offered as a
basis for inference as to the existence or
non-existence of the facts in issue. (Sec. 4,
Rule 129)
a. CLASSIFICATION
COLLATERAL MATTERS:
OF
1) Prospectant Collateral mattersare those preceding of the fact in

issue but pointing forward to it.
Example:
moral
motive, conspiracy.
character,
2) Concomitant
Collateral
mattersare those accompanying
the fact in issue and pointing to it.
Example: alibi, or opportunity

and incompatibility;
3) Retrospectant
Collateral
mattersare those succeeding the
fact in issue but pointing backward
to it.
Example:
flight
and
concealment, behavior of the
accused upon being arrested,
fingerprints
or
footprints,
articles left at the scene of the
crime which may identify the
culprit. (1 Wigmore)
Rules:
1. Rule: Collateral matters are not allowed.
Exception: Admissible when they tend in
any reasonable degree to establish the
probability or improbability of the fact in
issue.
L A W
RULE 129
WHAT NEED NOT BE PROVED
The function of judicial notice is that, it
displaces evidence, since as it stands for
proof, it fulfills the object which evidence is
designed to fulfill and makes evidence
unnecessary.
It is based upon obvious reasons of
convenience and expediency and operates to
save trouble, expense, and time which
would be lost in establishing, in the ordinary
way, facts which do not admit of
contradiction.
Definitions:
1. Judicial Notice no more than that the
court will bring to its aid and consider,
without proof of the facts, its knowledge of
those matters of public concern which are
known by all well-informed persons.
2. Judicial Knowledge cognizance of
certain facts which a judge under rules of
legal procedure or otherwise may properly
take or act upon without proof because they
are already known to him, or is assumed to
have, by virtue of his office.
Rules:
1. The following facts need NOT be proved:
2. Knowledge, motive, or intent may often be

ascertained from evidence of transactions,
apparently collateral, and such evidence, if
shown to be relevant, is admissible for such
R E M E D I A L
a. Those which the court may take judicial

notice of (rule 129);
b. Those which are judicially admitted
(Rule 129);
c. Those which are conclusively presumed
(Rule 131);
L A W
Page 170 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
d. Those which are disputably presumed

but uncontradicted (Rule 131).
2. Facts
Subject
Judicial Notice
to
GENERAL RULE: The Court is not

authorized
to
take
judicial
knowledge of the contents of the
record of other cases, in the
adjudication of cases pending before
them or even when said other cases
have been heard or are pending in
the same court notwithstanding the
fact that both cases may have been
heard or are really pending before
the same judge.
EXCEPTIONS: Courts may take

judicial notice of the record of other
cases before it when-
MANDATORY
a. Territorial extent of states;

b. Political history of states;
c. Forms of government of states;
d. Symbols of nationality;
e. Law of nations;
f.
Admiralty courts and their seals;
g. Political constitution and history of the

Philippines;
h. Matters relating
department;
to
our
legislative
i.
Matters relating
department;
to
our
executive
j.
Matters relating to the courts of justice;
a) Without
objection
or
by
agreement of the parties it may
be read into records or
admitted as part of the record
of the case then pending;
b) The other proceedings or causes
are so closely interwoven or
independent;
k. Laws of nature;
l.
L A W
c) Where the interests of the public

ascertaining the truth are of
paramount importance;
Measure of time; and
m. Geographical divisions
3. THE LAW OF NATIONS- the law of
nations which is the subject of judicial
notice is the law which regulates the
relations of the dominant powers of the
earth. It is the compilation of rules which by
common consent of mankind have been
acquiesced in as law.
d) Or in cases seeking to determine

what is reasonable exercise of
discretion or whether or not a
previous ruling applicable in a
case
under
consideration.
(Francisco on Evidence)
Foreign municipal law must be proved

as any other fact.
4. DOCTRINE
OF
PROCESSUAL
PRESUMPTION-that doctrine which lays
down the presumption that the foreign law
is the same as the law of the forum. It arises
if the foreign law, though properly
applicable, is either not alleged, or if alleged,
is not duly proved before a competent court.
5. Facts Subject to DISCRETIONARY
a. Judicial Notice
1) Matters of public knowledge;
2) Matters capable of unquestionable
demonstration; and
3) Matters ought to be known to judges
because of their judicial functions.
It is clear though, that the

exceptions are applicable only
when in the absence of
objections, with the knowledge
of the opposing party, or at the
request or with the consent of
the parties, the case clearly
referred to or the original part of
the records of the case are
actually withdrawn from the
archives and admitted as part of
the record then pending.
6. Judicial Notice, When HEARING

NECESSARY: A hearing may be
necessary, not for the presentation of
evidence, but to afford the parties
reasonable
opportunity
to
present
information relevant to the propriety of
taking such judicial notice or to the tenor of
the matter to be noticed. (Herrera on
Evidence)
R E M E D I A L
L A W
Page 171 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
DISTINCTION
BETWEEN
JUDICIAL
NOTICE
TAKEN
DURING THE TRIAL AND THAT
TAKEN AFTER THE TRIAL BUT
BEFORE JUDGMENT OR ON
APPEAL:
1) When shown that the admission was

made through palpable mistake, and
2) When it is shown that no such
admission was in fact made.
1) During the trial- The court may

announce its intention to take
judicial notice of any matter and
may hear the parties thereon.
The following are not, however,

deemed admitted:
a) Immaterial allegations, e.g.,
allegations by way of anticipation
of defense (Worcester vs.
Lorenzana)
2) After the trial- the Court may take

judicial notice of any matter and
allow the parties to be heard thereon
only if such matter is decisive of a
material issue in the case.
L A W
b) Incorrect conclusions of facts

drawn from facts set out in the
complaint;
c) Conclusions of law;
In BOTH instances, the Court may

act on its own initiative or on request
of a party. (Feria, Philippine Legal
Studies, Series No. 4)
d) General averments contradicted

by specific averments;
e) Unliquidated damages;
No admissions are permitted
in:
Section 4. JUDICIAL ADMISSIONS
f) Annulment of marriage (Article

48, Family Code); and
Definition:
Judicial admissions
g) Legal separation (Article 60,

Family Code)
- an admission made in the course of the

proceedings in the same case, verbal or written
by a party accepting for the purposes of the suit
the truth of some alleged fact, which said party
cannot thereafter disprove. (Sec. 4, Rule 129)
- admissions in the pleadings filed in court.
(National Electrification Administration vs.
CA, GR No. 103585, Oct. 6, 1996)
Rules:
1. Judicial admissions may be made in:
a. the pleadings filed by the parties;
b. the course of the trial either by verbal or
written manifestations or stipulations;
or
c. in other stages of the judicial
proceedings, as in the pre-trial of the
case;
d. Admissions
obtained
through
depositions, written interrogatories or
requests for admissions.
GENERAL RULE: Judicial admission
is conclusive upon the party making it
and does not require proof.
In the last three cases, plaintiff

must prove his allegations.
In a case for legal redemption

under Article 1621 of the Civil
Code, allowing the owners of an
adjoining land the right of legal
redemption of rural land an
admission in the answer that
land is residential is binding on
the defendant. No palpable
mistake in making the pleading
has been shown.
( Fabie vs.
IAC, 133 SCRA 364)
GENERAL RULE: Judicial admissions

made in one case are admissible at the
trial of another case provided they are
proved and are pertinent to the issue
involved in the latter.
EXCEPTIONS:
1) the said admissions were made only
for purposes of the first case, as in
the rule of implied admissions and
their effects under Rule 26;
EXCEPTIONS:
R E M E D I A L
L A W
Page 172 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
2) The same were withdrawn with the

permission of the court therein; or
a. Where the presentation is violative of

decency.
3) the court deems it proper to relieve

the part therefrom
b. Where the presentation has no purpose

other than to arouse the passion of the
court towards the party against whom it
is offered in evidence.
Question:
IS SELF-SERVING RULE APPLICABLE TO
JUDICIAL ADMISSIONS?
c. When the object is repulsive or offensive

to the sensibilities.
Answer:
NO. The self-serving rule which prohibits the
admission of declaration of a witness in his
favor applies only to extrajudicial admissions. If
the declaration is made in the open court, such
evidence, it is not self-serving. It is admissible
because the witness may be cross-examined on
that matter. However, whether it will be
credible or not, is a matter of appreciation on
the part of the court.
d. Where, in the discretion of the court, the

production of evidence will cause great
inconvenience, or where, for other
reasons, it is unjust.
2. Requirements for Admissibility of
Tape
Recordings,
Wire
and
Dictaphone
a. The tape, wire, or dictaphone was
capable of taking testimony;
b. The person operating the device was
competent to operate it;
RULE 130
c. The recording is authentic and correct;
RULES OF ADMISSIBILITY
d. The testimony has been duly preserved;

e. The testimony was voluntarily made;
and
OBJECT (REAL) EVIDENCE

Objects as evidence are those addressed to
the senses of the court. When an object is
relevant to the fact in issue, it may be
exhibited to, examined or viewed by the
court.
f.
The speaker
identified.
has
been
correctly
3. Requisites for Experiments to be

Admissible
a. Relevancy; and
Classification of Object Evidence
b. The present condition of the object must

be the same at the time of issue.
a. That which consists in the exhibition or

production of the object inside or
outside the courtroom,
b. That which consists in the inspection of
the object outside the courtroom (ocular
inspection), and
c. That which consists in the making of an
experiment
DOCUMENTARY EVIDENCE:
Documents as evidence consist of writing or
any material containing letters, words,
numbers, figures, symbols or other modes
of written expression offered as proof of
their contents.
Question:
Requisites for Admissibility:

a. The object must be relevant to the fact in
issue; and
When a document does considered real or

object evidence?
b. The object must be authenticated before

it is admitted.
Answer:
Rules:
1. Instances when
Dispensed with
Exhibition
Maybe
If the object is to examine the age,

signature thereon, or the conditions of the
document itself, the same is considered real
evidence which the court may view for such
purpose.
R E M E D I A L
L A W
Page 173 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
obliged to grant it the probative value it

deserves.
BEST EVIDENCE RULE
Exception: When original is needed to

be produced such as in cases regarding
falsification of private document so that
the court may determine whether the
crime was actually committed.
Purpose: To avoid risk of error in trusting to

somebodys copy or recollection the words of a
document.
Rules:
1. Rule: When the subject of inquiry is the
contents of a document, no evidence shall
be admissible other than the original
document itself.
5. What
are
Documents
Considered
Original
a. The original of a document is one the

contents of which are the subject of
inquiry.
Exceptions:
1) When the original has been lost or
destroyed, or cannot be produced in
court, without bad faith on the part
of the offeror;
b. When a document is in two or more

copies executed at or about the same
time, with identical contents, all such
copies are equally regarded as originals.
2) When the original is in the custody

or under the control of the party
against whom the evidence is
offered, and the latter fails to
produce it after reasonable notice;
c. When 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 likewise
equally regarded as originals.
3) When the original consists of

numerous
accounts
or
other
documents
which
cannot
be
examined in court without great loss
of time and the fact sought to be
established from them is only the
general result of the whole; and
d. An electronic document, if it is a
printout or output readable by sight or
other means shown to reflect the data
accurately.
(Rules
on
Electronic
Evidence, A.M. No. 01-7-01-SC)
4) When the original is a public record

in the custody of a public officer or is
recorded in a public office.
2. Limitations to the Rule
a. Proof of collateral facts not within the
Rule.
b. Even of a fact in issue is evidenced in
writing, the document is not necessarily
the best evidence.
c. The Rule has no application to prove a
fact
which
has
an
existence
independently of any writing.
3. The best evidence rule refers merely to
proof of what are the contents of a writing
and not as a proof of the truth of the facts
asserted therein.
4. Rule is Waived if No Proper Objection
Made: When secondary or incompetent
evidence is presented and accepted without
any objection on the part of the other party,
the latter is bound thereby and the court is
Question:
The name Best Evidence Rule is said
to be Misleading.
Answer:
It has been said that the best evidence rule
has a misleading name. Contrary to what it
implies, the rule does not require a party to
present the best or most probative evidence on
an issue, where more than one means of proof is
available. Rather, the best evidence rule is a
specific evidentiary requirement applicable to
documentary evidence. It might therefore be
better referred to as the original writing rule.
SECONDARY EVIDENCE
Secondary evidence is admissible when the
original documents were actually lost or
destroyed. But prior to the introduction of
such secondary document, the proponent
must establish the former existence of the
document.
Rules:
R E M E D I A L
L A W
Page 174 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
1. Requisites
Evidence
to
Admit
A I D
I N
R E M E D I A L
L A W
Secondary
a. The adverse partys custody or control of

the original document,
a. The execution or existence of the

original,
b. That reasonable notice was given to the

adverse party who has the custody or
control of the document,
b. The loss and destruction of the original

or its non-production in court, and
c. The unavailability of the original is not
due to bad faith on the part of the
offeror
2. Effect of failure to prove requisites
a. It cannot be admitted.
b. Has no probative value, if admitted.
c. Satisfactory proof of its existence, and

d. Failure or refusal by the adverse party to
produce it in court.
8. Voluminous Writings in Original:
Secondary evidence is admissible when the
original consists of numerous accounts or
other documents which cannot be examined
in court without great loss of time.
3. Order of Proof
a. Requisites of Admissibility
a. Existence;
1) Proof of voluminous character of

records;
b. Execution;
2) Records and accounts should be

accessible to the adverse party so
that the correctness of summary may
be tested on cross-examination; and
c. Loss;
d. Contents.
However, this order may be changed if
necessary in the discretion of the court.
3) The general result sought to be

proved is one capable of being
ascertained by calculation.
4. Proof of execution: Who may prove

a. By the person/s who executed it;
Evidence Admissible when Original

Document is a Public Record
b. By the person/s who saw its execution

c. By a person to whom the parties to the
instrument had previously confess the
execution thereof.
Proof of Official Record

1) By official publication thereof; or
2) By a copy attested by the officer
having the legal custody of the
record or by his deputy;
5. Proof of loss: Who may prove

a. By the person/s who knew the fact of
loss;
b. By one who has made investigation of its
loss to the satisfaction of the court.
6. Proof
of
Contents:
Secondary Evidence
Kinds
If the record is not kept in the

Philippines, the copy must be
accompanied with a certificate that
such officer has the custody.
The certificate maybe made by a

secretary of the embassy or legation,
consul general, consul, vice-consul,
or consular agent or by any officer in
the foreign service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his
office.
of
a. By a copy of the original;

b. By a recital of its contents in an
authentic writing;
c. By recollection of witness.
The proof of contents must be made in
such order.
7. Requisites
for
Admissibility
of
Secondary Evidence When Original is
with Adverse Party
Sec. 8. Party who calls for document not

bound to offer it.
R E M E D I A L
L A W
Page 175 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
A party who calls for the production of a

document and inspects the same is not
obliged to offer it as evidence.
more meanings or when it is

understood in more than one way.
Extrinsic ambiguity on the other
hand, is one where the document on
its face is so unintelligible and the
words used so defective that it totally
fails to express a meaning, in such
case parol evidence is forbidden.
Reason: No party to a case is expected to

supply its opponent with the very rope to
hang the formers neck.
PAROL EVIDENCE RULE
b. The failure of the written agreement to

express the true intent and agreement of
the parties thereto;
Purpose: To give stability to written

agreement and remove the temptation and
possibility of perjury, which would be afforded
if parol evidence was admissible.
c. The validity of the written agreement;

Basis: The 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 must have
been waived and abandoned by the parties.
a. When there is a valid contract;

b. When the terms of agreement are
reduced to writing;
c. The agreement is between the parties
and their successors in interest; and
d. There is a dispute as to the terms of the
agreement.
4. Exceptions to Parole Evidence Rule: A
party may present evidence to modify,
explain or add to the terms of written
agreement if he puts in issue in his
pleading:
a. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
Note: It must be intrinsic ambiguity,

i.e., when the writing admits two or
The term "agreement" includes wills.
5. Requisites to Admit Parol Evidence by

Reason of Mistake
a. That the mistake should be of fact,
b. That the mistake should be mutual or
common to both parties to the
instrument, and
2. This rule forbids any addition or

contradiction of the terms of a written
instrument by testimony purporting to show
that, at or before the signing, of the
document, other or different terms were
orally agreed upon by the parties.
3. Requisites for Applicability
Example: where the consent of one

of the parties was procured by
mistake,
fraud,
intimidation,
violence, or undue influence.
d. The existence of other terms agreed to

by the parties or their successors in
interest after the execution of the
written agreement.
Rules:
1. The written agreement 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.
L A W
c. That the mistake should be alleged and

proved by clear and convincing
evidence.
6. Theory of Integration of Jural Acts
(Previous Acts): Previous acts and
contemporaneous transaction of the parties
are deemed integrated and merged in the
written agreement which they have
executed. When the parties reduced their
agreement to writing, it is presumed that
they have made the writing the only
repository and memorial of the truth, and
whatever it is not found in the writing must
be understood to have been waived or
abandoned.
Collateral Oral Agreement A contract
made prior to or contemporaneous with
another agreement and if oral and NOT
inconsistent with written agreement is
admissible within the exception to parol
evidence rule
R E M E D I A L
L A W
Page 176 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
Rule:
Contemporaneous
oral
agreements is not provable by parol
evidence.
Exception: If such oral agreements

can be classified as collateral.
R E M E D I A L
L A W
3. State witness It is one of two or more

persons jointly charged with the
commission of a crime but who is
discharged with his consent so he that he
can be a witness for the state.
Rules:
BEST EVIDENCE
RULE
PAROL
EVIDENCE RULE
1. The issue is the 1. The issue is

contents
of
a whether or not a
document
party is adding or
modifying the terms
of
the
written
agreement
2. Prohibits the offer
of
secondary
evidence to prove
the contents of a
writing or document,
unless the case falls
under any of the
exceptions
2. Prohibits the offer

of oral evidence if
the purpose is to
change, vary, modify
or contradict the
terms of a complete
written agreement,
unless the case falls
under any of the
exceptions
1. All persons who can perceive, and

perceiving, can make known their
perception to others may be witnesses.
Religious or political belief, interest in the
outcome of the case, or conviction of a crime
shall be a ground for disqualification unless
otherwise provided by law.
2. Exception: When a person is disqualified:
a. By reason of his mental condition or
mental maturity;
b. Be reason of public policy;
c. By
reason
of
communication; or
d. When disqualified by law or these Rules.

3. When deaf mutes are competent
witnesses
a. where they can understand
appreciate the sanctity of an oath;
3. Any party to the 3. Only the parties to

case may invoke this the document an
their successors in
interest may invoke
this
4. Applies to any 4.
Applies
to
document
agreements & wills
confidential
and
b. can comprehend facts they are going to

testify on; and
c. can communicate their ideas through a
qualified interpreter.
4. While an accused may voluntarily take the
witness stand to testify on his behalf in a
criminal case filed against him and be crossexamined thereby, he cannot be compelled
to be a witness for the prosecution.
TESTIMONIAL EVIDENCE
Qualification of Witnesses
Sec. 20: Witnesses; their qualifications.
Definition:
1. Witness one who, being present,
personally sees or perceives a thing, a
beholder, spectator or eyewitness; one who
testifies to what he has seen or heard, or
otherwise observed.
2. Prosecution witness - It is a person who
is not an accused and who is called to testify
relating to a criminal case.
R E M E D I A L
Basis: The Constitution provides

that no person shall be compelled to
be a witness against himself. The
constitutional proscription is based
on two grounds:
1) Public policy It would place the

witness against the strongest
temptation to commit perjury.
2) Humanity It would be to extort a
confession of truth by force and
degree of which the law abhors.
Exceptions: He can be compelled

to do certain mechanical or physical
acts as the right extends only against
L A W
Page 177 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
the use of physical or moral

compulsion
to
extort
communications from the accused.
5. Types of immunity from suit granted
to a witness:
a. Transactional immunity A witness can
no longer be prosecuted for any offense
whatsoever arising out of the act or
transaction.
b. Use-and-derivative-use immunity A
witness is only assured that his or her
particular testimony and evidence
derived from it will not be used against
him or her in a subsequent prosecution.
6. An adverse party in a civil case may
compelled to be a witness, by subpoena or
subpoena duces tecum, provided, the other
party has served interrogatories or made
request for admissions.
7. Other Statutes Granting Immunity from suit
a. RA No. 6770 The ombudsman has the
authority to grant immunity from
criminal prosecution to any person
whose testimony is necessary to
determine the truth.
Is a mental retardate disqualified to testify?

Answer:
A mental retardate is not by itself
disqualified to testify as long as he has ability to
make his perception known to others.
Sec. 21: Disqualification by reason of
mental incapacity or immaturity.
Definition:
1. Voir Dire literally means to speak the
truth.
2. Voir Dire Examination denotes the
preliminary examination under oath which
the court may make of one presented as a
witness (or juror), where his competence,
interest, etc. is objected to.
Rules:
1. Generally, the following persons cannot be
witnesses:
a. Insane, unless his testimony is offered
during a lucid interval;
b. Minor, subject to exceptions.
When the court subjects the witness to
voir dire, the court reminds him or her
about the consequences of the truth.
When the court is satisfied that the
influence of fear or hope has been ruled
out, then the confession of the witness
can be deemed voluntary.
b. RA No. 6646 Grants an acceptor or coconspirator immunity from prosecution,

if he voluntarily testifies in the
prosecution of vote-buying or voteselling, which is an election offense.
8. Qualities or Abilities a Witness Must
Possess
L A W
2. Test of Competency:
a. to observe
a. Sufficiency
of
understanding
to
appreciate the nature and obligation of
an oath,
b. to remember
c. to relate
b. Sufficiency of capacity to observe, and
d. to recognize a duty to tell the truth
c. Describes correctly the facts in regard to

which he is called to testify.
The objection to the competency of a

witness must be made before he has
given any testimony or as soon as it
becomes apparent.
A deaf and dumb is not incompetent as

witness if he is able to communicate the
facts by a method which his infirmity
leaves available to him, and is of
sufficient mental capacity to observe the
matters as to which he will testify and to
appreciate the obligation of an oath.
9. Acts Considered as Waiver

a. Where the party fails to raise the
objection when the witness testifies, and
b. Where the party who might have made the
objection calls the witness in support of his own
case.
Question:
3. The Rule on Examination of a Child

Witness;
Presumption
of
Competency: Under the new Child
R E M E D I A L
L A W
Page 178 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Witness Rule, every child is presumed

qualified to be a witness. Only when
substantial doubt exists regarding the ability
of the child to perceive, remember,
communicate, distinguish truth from
falsehood or appreciate the duty to tell the
truth in court will the court, motu proprio or
on motion of a party, conduct a competency
examination of a child. The court may
appoint a guardian ad litem to promote the
childs best interest.
1.
Dead Mans Statute or Survivor

Disqualification Rule provides that if
one party to the alleged transaction is
precluded from testifying by death, insanity
or other mental disabilities, the surviving
party is not entitled to undue advantage of
giving his own uncontradicted and
unexplained account of the transaction.

marriage.
Rules:
1. Marital Disqualification Rule neither
husband nor wife may testify for or against
the other without the consent of the other
spouse during the marriage.
2. Requisites:
a. Spouses are legally married, and
2. PRIVILEGED COMMUNICATION
RULE- a rule of law that, to protect a
particular relationship or interest, either
permits a witness to refrain from giving
testimony he otherwise could be compelled
to give, or permits someone, usually one of
the parties, to prevent the witness from
revealing certain information.
1. Requisites:
a. The witness is a party or assignor of a
party to a case or is a person in whose
behalf a case is prosecuted,
3. Exceptions:
a. In a civil case by one against the other,
or
b. The action is against an executor or

administrator or other representative of
a deceased person or against a person of
unsound mind,
b. In a criminal case for a crime committed

by one against the other.
Purpose: To guard against the

temptation to give false testimony on
the part of the surviving party, and
put the parties to the suit upon the
terms of equality in regard to
opportunity to produce evidence.
Rules:
b. Either spouse must be a party to the

case.
L A W
The
right
to
invoke
this
disqualification belongs to the
spouse-party, therefore, he or she
alone can claim or waive it.
c. The subjectmatter of the action is a

claim or demand against the estate of a
deceased person or a person of unsound
mind, and
Reasons for the rule:
d. The testimony of witnesses and the

testimony of the party or assignor of a
party to the case must refer to any
matter of fact, which occurred before the
death of the deceased or before the
person became insane.
a) There is identity of interests.

b) There is danger of perjury.
c) To guard the security and
confidences of private life and to
prevent domestic disunion.
d) Where there is want of domestic
tranquility there is danger of
punishing one spouse through
hostile testimony of the other.
2. Exceptions:

death or insanity of adverse party.
a. Ordinary witness,
b. When the plaintiff is a corporation, the
officers or stockholders are not
disqualified,
c. When there is an imputation of fraud
against the deceased, the plaintiff is not
barred from testifying to such fraud,
Definition:
R E M E D I A L
L A W
Page 179 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
d. When the plaintiff is the executor,

administrator or legal representative of
the deceased, or a person of unsound
mind, the defendant is free to testify
against the plaintiff,
marital relation be it by the death of

either spouse or by absolute divorce.
When the survivors testimony is

favorable to the deceased,
g. When the executor or administrator

waives the benefit of the rule, and
b) Communication made in the

presence of third person with
their knowledge, is not
confidential. But where it is
uttered in the presence of mere
children who are not interested,
the communication is
confidential.
h. When the transaction which gives rise to

the claim was transacted to by the
plaintiff and an agent of the deceased.
3. It is not applicable to bar corporate officers
or stockholders from testifying in support of
a claim of the corporation or to testimony
concerning a conversation with the
deceased president of a defendant
corporation, as none of these persons is a
party or assignor of a party.
b. Attorney-Client Privilege Rule

Requisites:
a) There must be a relation of
attorney and client,
4. Disqualification By Reason of
Privileged Communication
b) Communication by client to
attorney, or advice given thereon
by the latter to the former; and
a. Marital Privilege Rule
c) Communication or advice must

have been made to the attorney
in the course of or with a view to
professional employment.
1) Requisites:
(a) That the spouses must have
been legally married;
(b) That the privilege is claimed,
with regard to
communication, oral or
written, made during the
marriage;
(c) That said communication
was made confidentially; and
Professional communications are

not privileged when such
communications are for an unlawful
purpose, having for their purpose
the commission of a crime.
The privilege belongs to the client

and only he can invoke it. It extends
to the attorneys secretary,
stenographer, or clerk concerning
any fact acquired in such capacity; or
any other agent of transmitting the
communication, originating from
the clients agent and made to the
attorney or from the attorneys agent
to the attorney.
(d) That the action or

proceedings where the
privilege is claimed is not by
one spouse against the other.
2) Exemptions:
(a) In a civil case instituted by
one against the other, and
(b) In a criminal case for a crime
committed by one against the
other.
Rule When Communication

Heard By Third Persons:
a) Communication overheard by
third person without knowledge
of the spouses is still confidential
but third party is not
disqualified.
e. When the survivors testimony refers to

a negative fact,
f.
L A W
c. Physician-Patient Privilege Rule

Requisites:
a) The action in which the advice or
treatment given or any
information is to be used is a
civil case;
Duration: The privilege endures

even after the termination of the
R E M E D I A L
L A W
Page 180 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b) The relation of physician and

patient existed between the
person claiming the privilege or
his legal representative and the
physician;
c) it is made in the course of

discipline enjoined by the rules
or practices of his sect or
denomination.
c) The advice or treatment given by

him or any information was
acquired by the physician while
professionally attending the
patient;
The confession herein must be made

to acquire divine absolution or
sacramental in character.
Matters not Allowed to Testify

on:
a) The confession given to him
d) The information was necessary

for the performance of his
professional duty; and
b) Advice he gave to the person who

confessed, provided that the
confession was made to the
priest or minister in his
professional capacity and that
the confession was given in
accordance with the rights of the
church or organization to which
the priest or minister belong.
The disclosure of the information

would tend to blacken the
reputation of the patient.
Persons Disqualified in the

Rule
a) Any person authorized to
practice medicine, surgery, or
obstetrics
e. Privileged Communication to
Public Officer
b) Dentists
d) Nurses
b) The communication was made in

official confidence; and
Waiver of Privilege under Rule

28: A party, in an action where the
court ordered for the examination of
his mental or physical condition, by
requesting and obtaining a report of
the said examination or by taking
the deposition of the examiner,
waives any privilege he may have in
that action or any other involving the
same controversy, regarding the
testimony of every other person who
has examined or may thereafter
examine him in respect of the same
mental or physical examination.
c) Public interest would suffer by

the disclosure of the
communication.
b) To lessen the risk of false

testimony, or
c) When essential to the proper
disposition of the case, or
d) When the benefit to be gained is
greater than any injury which
could inure.
Requisites:
a) The minister or priest must be so
according to the sect or
denomination to which he
belongs;
b) the communication is made to
him in his professional capacity
or character; and
R E M E D I A L
Exceptions:
a) When useful to vindicate the
innocence of an accused person,
or
d. Priest-Penitent Privilege Rule

Requisites:
a) The communication must have
been made to a public officer;
c) Pharmacists
L A W
f.
Other Privilege Matters

1) Bank deposits, except: upon written
permission of the depositor, in cases
of impeachment, upon order of
competent court in cases of bribery,
dereliction of duty of public officials,
in cases where the money deposited
L A W
Page 181 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
is the subject matter of litigation

and, in cases of unexplained wealth.
ultimate fact in issue in a civil case or of the

guilt of an accused.
Form of Admission
2) Sources of information by
newspaperman
1) Judicial, in
conclusive.
3) Informers
4) Trade secrets
Important: The confidential

character of a privileged
communication is not lost solely on
the ground that it is in the form of an
electronic document.
Marital Disqualification Rule vs.

Marital Privilege Rule
Marital
Disqualification
L A W
Privileged
Communication
1. Prohibits adverse 1. Prohibits only as

testimony
to
knowledge
obtained
through
confidence of the
marital relation
2. Exists only when a 2. Exists whether the
party to the action is husband or wife is a
the husband or wife
party to the action or
not
which
case
it
is
2) Extrajudicial, in which case it is

rebuttable.
2. Evidentiary Admission When the term
admission is used without any qualifying
adjective, the customary meaning is an
evidentiary admission, that is, words in oral
or written form or conduct of a party or a
representative offered in evidence against a
party.
3. Judicial Admission refers to an
admission, verbal or written, made by a
party in the course of the proceedings in the
same case, which does not require proof.
The admissions may be contradicted only by
showing that it was made through palpable
mistake or that no such admission was
made.
Rules:
1. General Rule: No person may be
compelled to testify against his parents,
other direct ascendants, children or other
direct descendants.
3. Ceases upon the 3. Continues even

death
of
either after the termination
spouse
of the marriage
TESTIMONIAL PRIVILEGE
Exception: When
a. A crime committed by one parent
against another parent; and
b. A crime committed by an ascendant
against a descendant. (Art. 215, Family
Code)
Sec. 25: Parental and filial privilege.

Definitions:
1. Admission
is
a
voluntary
acknowledgement of some fact or
circumstance which tends to establish the
c. He waived such privilege and voluntarily

testify against any of them.
ADMISSION
CONFESSION
1. is a statement by the accused, direct or 1. is the declaration of an accused

implied, of facts pertinent to other facts, to expressly acknowledging his guilt of
prove his guilt
the offense charged or of any offense
necessarily included therein
2. do not have the dramatic effect or be the all
encompassing
acknowledgment
of
responsibility that the word confession
connotes
R E M E D I A L
L A W
Page 182 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Sec. 26: Admission of a party.
1. Compromise an agreement made

between two or more parties as a settlement
of matters in dispute.
Rules:
1. The act, declaration or omission of a party
as to a relevant fact may be given in
evidence against him.
2. Self-serving
declarations,
which
are
unsworn statements made by the declarant
out of court and which are favorable to his
interest are not admissible.
Exceptions:
1) When they form part of the res
gestae,
including
spontaneous
statements, and verbal acts.
2) When they are in the form of
complaint and exclamations of pain
and suffering.
3) When they are part of a confession
offered by the prosecution.
4) Where the credibility of a party has
been assailed on the ground that his
testimony is a recent fabrication.
5) Where they are offered by the
opponent.
2. Privies denotes the idea of succession

not only by right of heirship and
testamentary legacy, but also that of
succession by singular title, derived from
acts inter vivos, as by assignment,
subrogation or purchase in fact any act
whereby the successor is substituted in the
place of the predecessor in interest.
(Alpuerto vs. Perez, 38 Phil. 785)
Rules:
1. Compromise in Civil Cases: In civil
cases, if a party denies the existence of a
debt but offers to pay the same for the
purpose of buying peace and avoiding
litigation, the offer of settlement is
inadmissible. If in the course thereof, the
party making the offer admits the existence
of an indebtedness combined with a
proposal to settle the claim amicably, then,
the admission is admissible to prove such
indebtedness. (Trans-Pacific Industrial,
Inc. vs CA, 235 SCRA 494).
2. Cases Where Compromise Not Valid:
6) When they are offered without

objection.
L A W
a. Civil status of persons;

b. Validity of a marriage or a legal
separation;
Note: Diaries are as a rule

inadmissible because they are selfserving in nature, they have the
nature of books of account; but it has
been held that an entry in a diary
being in the nature of a declaration,
if it was against interest when made,
it is admissible.
c. Any ground for legal separation;

d. Future support;
e. Jurisdiction of the courts;
f.
Future legitime;
g. Habeas corpus; and

h. Election
Sec. 27: Offer of compromise not

admissible.
Reason:
Lack of relevancy of the offer, that is, it may be
construed as a desire for peace rather than an
admission of weakness of position or increase of
relevancy; and policy considerations to promote
the settling of disputes, which would be
discouraged.
3. Compromise in Criminal Cases: In

criminal cases, except those involving quasioffenses (criminal negligence) or those
allowed by law to be compromised, an offer
of compromised by the accused may be
received in evidence as an implied
admission of guilt.
4. Criminal Cases Where Compromise
Allowed
Definition:
a. Violation of the NIRC (Tax Code)

R E M E D I A L
L A W
Page 183 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b. Quasi-offenses under Art. 365, RPC
not admissible against the other

partners in the absence of prior
authority or subsequent ratification,
even if such admissions or
declarations relate to matters
pending at the time of dissolution.
5. The Good Samaritan Rule: An offer to

pay or the payment of medical, hospital or
other expenses occasioned by an injury is
not admissible in evidence as proof of civil
or criminal liability for the injury.
Rationale: here is the same as for
offers to compromise plus a concern that
such payment may have been prompted
solely by humanitarian motives.
The Res Inter Alios Acta Rule
6. The rights of a party cannot be prejudiced
by an act, declaration, or omission of
another.
It is based from the maxim res inter
alios acta alteri nocere non debet
(things done between strangers ought
not to injure those who are not parties to
it)
9. Principle
of
Conditional
Admissibility: Inasmuch as it must often
happen that the admission of only one
partner can be proved at a time,
declarations may be received where the
existence of a partnership is alleged without
proof of the partnership at that time. Here,
as in other cases, the order of the testimony
is within the discretion of the judge.
10. Requisites of Admission by Agent:
a. The agency be previously proved by
evidence other than the admission itself.
b. The admission refers to a matter within
the scope of his authority.
It is well-settled that a party is not

bound by any agreement of which he has
no knowledge and to which he has not
given his consent and that his rights
cannot be prejudiced by the declaration,
act or omission of another, except by
virtue of a particular relation between
them.
7. Exceptions to the Res Inter Alios Acta
Rule; Admissions made:
a. By a co-partner or agent (Sec. 29)
c. The admission was made during the

existence of the agency.
a. There exists a joint interest between the

joint owner, joint debtor or other person
jointly interested with the party and
such party, which joint interest must
first be made to appear by evidence
other than the act or declaration itself.
c. By privies (Sec. 31)

d. By Silence (Sec. 32)
Sections 29, 30 and 31 are
collectively classified as vicarious
admissions.
8. Requisites
Partner:
of
Admission
by
b. The act or declaration was made while

the interest was subsisting.
Co-
a. The partnership be previously proven by

b. The acts or declarations refer to a matter
within the scope of his authority.
c. The act relates to the subject matter of

the joint interest for otherwise it would
be immaterial and irrelevant.
12. Requisites of
conspirator:
c. The acts or declarations were made

during the existence of the partnership.
Note: The admissions of a guardian

which mean the sacrifice and giving
away of the wards property are
never held to be binding. (Ibanez vs.
Rodriguez, 47 Phil. 554)
11. Requisites of Admission by Joint

Owner, Joint Debtor, or other Person
Jointly Interested with the Party:
b. By a conspirator (Sec. 30)
L A W
Note: Declarations or admissions

made by a partner after the
dissolution of the partnership are
R E M E D I A L
Admission
by
a. The conspiracy be first proved be

b. The admission relates to the common
object.
L A W
Page 184 of 212
co-
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
c. It has been made while the declarant

was engaged in carrying out the
conspiracy.
c. Where the accused admitted the facts

stated by the confessant after being
apprised of such confession;
Note: This rule applies only to

extrajudicial acts or declaration of a
conspirator, but not to testimony to
the facts given on the stand at the
trial where the defendant has the
opportunity to cross-examine the
declarant. (People vs. Vizcarra, 115
SCRA 747)
d. If they are charged as co-conspirators of

the crime which was confessed by one of
the accused and said confession is used
only as a corroborating evidence;
13. The Principle of Implied Conspiracy:

Conspiracy
may
be
justified
by
circumstantial evidence, that is, their
community of purpose and their unity of
design in the contemporaneous or
simultaneous performance of the act of
assaulting the deceased. Although the intent
may be classified as instantaneous, it sprung
from the turn of events, thereby uniting the
criminal design of the slayer immediately
before the commission of the offense.
(Subayco vs. Sandiganbayan, GRN 117267,
Aug. 22, 1996).
e. Where the confession is used as

circumstantial evidence to show the
probability of participation by the coconspirators;
f.
g. Where the co-conspirators extrajudicial

confession is corroborated by other
evidence.
17. Admission by Privies: Where one derives
title to property from another, the act,
declaration, or omission of the latter, while
holding the title, in relation to the property,
is evidence against the former.
a. Exceptions:
1) Where the declarations are made in
the presence of the transferee and he
acquiesces in the statements, or
asserts no rights where he ought to
speak.
14. Principle of Adoption: Where one joins a

conspiracy after its formation and actively
participates in it, he adopts the previous
acts and declarations of his fellow
conspirators, so that such acts and
declarations, although done or made before
he joined the conspiracy are admissible
against him.
15. Interlocking confessions: Where several
extrajudicial confessions had been made by
several persons charged with the same
offense and without the possibility of
collusion among them, the fact that the
statements are in all respects identical is
confirmatory of the confessions of the codefendants and are admissible against other
persons implicated therein. This is an
exception to the hearsay and res inter alios
acta rule.
16. Extrajudicial confession is binding
only against the confessant, except:
a. If the co-accused impliedly acquiesced
in or adopted said confession by not
questioning its truthfulness;
Where the confessant testified for his

co-defendant;
2) Where there has been a prima facie

case of fraud established, as where
the thing granted has a corpus, and
the possession of the thing after the
sale or transfer, remains with the
seller or transferor.
3) Where the evidence establishes a
continuing conspiracy to defraud,
which conspiracy exists between the
vendor and the vendee.
18. Former Owner of Real Estate: The
conduct and declarations of the grantor,
before the conveyance, respecting the estate
conveyed, which tend to prove a fraudulent
intention on his part, are proper as against
the transferee, in an action by a creditor or a
subsequent purchaser from the grantor, to
set aside the conveyance for fraud. (2 Jones,
Sec. 13.8)
b. In cases of interlocking confession

corroborated by other evidence;
R E M E D I A L
a. It is necessary that the admission of the

former owner of a property has been
made while he holds title to the property
in order that such admission may be
L A W
Page 185 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
binding upon the present owner. (City of

Manila vs. del Rosario, 5 Phil 227)
L A W
a. Must be express and categorical,

b. Given voluntarily and intelligently
where the accused realizes the legal
significance of his act,
19. Admission by Silence.

a. Basis: The maxim Qui tacet consentire
videtur (he who is silent appears to
consent) is received on the theory that
the failure to deny what is asserted in
the presence of a party is an implied
admission of the truth of the statement.
c. With assistance of
independent counsel,
competent
and
d. In writing and in the language known to

and understood by the confessant, and
e. Signed, or if the confessant does not
know how to read and write, thumb
marked by him.
b. Requisites:
1) Hearing and understanding of the
statement by the party,
of
A confession obtained from a person

who has not been informed of his right
to silence and counsel is inadmissible.
3) Statement must refer to a matter

affecting his right or interest,
2. Confession of an accused against his coaccused is inadmissible.
2) Opportunity and necessity

denying the statements,
Exceptions:
4) Facts were within his knowledge,

and
a. When several accused are tried together.
5) Facts admitted or the inference to be

drawn from his silence would be
material to the issue.
b. When one of the defendant is discharged

from the information and testifies as a
witness for the prosecution, if
corroborated by indisputable proof.
c. Exception: The rule is not applicable in

a criminal case. No inference of guilt
may be drawn against the accused upon
his failure to make a statement of any
sort. The neglect or refusal of the
accused to be a witness shall not in any
manner prejudice or be used against
him. An accused has the right to remain
silent. (People vs. Arciaga, 98 SCRA 01)
c. If a defendant, after having been

apprised of the confession of his codefendant, ratifies or confirms said
confession.
d. Where several extrajudicial confession
had been made by several persons
charged with an offense and there could
have been no collusion with reference to
said several confessions.
e. A
statement
made
by
one
defendant after his arrest, in the
presence of his co-defendant, confessing
his guilt and implicating his codefendant who failed to contradict or
deny it.
Sec. 33: Confession.

Definition:
1. Confession the declaration of an
accused acknowledging his guilt in express
words of the truth of the offense charged, or
of some essential parts thereof.
f.
2. Custodial
Interrogation
the
questioning initiated by law enforcement
officers after a person ahs been taken
custody or otherwise deprived of his
freedom of action in any significant way.
g. The confession of one conspirator made

after the termination of a conspiracy
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.
Rules:
1. Requisites of
Admissible
Confession
to
When the confession is of a conspirator

and made after conspiracy and in
furtherance of its object.
be
2. Spontaneous or Spur-of-the-Moment
Statements: In one case, before the police
R E M E D I A L
L A W
Page 186 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
officer interrogated the accused, the latter

had already admitted the crime when, after
coming out of the toilet, the scene of the
crime, revealed to the guard they
encountered that they committed an act of
revenge. That spontaneous statement
elicited without any interrogation, was part
of the res gestae and, at the same time, was
a voluntary confession of guilt. Not only
did the accused, by means of said statement,
waive their right to remain silent and to
counsel, but by their extrajudicial
confession, plea of guilty, testimony in court
and by not appealing the judgment of
conviction. (People vs. Tampus, 96 SCRA
624; People vs. Dy, 158 SCRA 111).
L A W
As a general rule, the evidence of other

offenses committed by defendant is
inadmissible.
As
one
exception,
however, it is permissible to ascertain
defendants knowledge and intent and to
fix his negligence. If the defendant has
on more occasion performed similar
acts, accident in good faith is possibly
excluded, negligence is intensified, and
fraudulent intent may even be
established. There is no better evidence
of negligence than the frequency of
accidents. (U.S. vs. Pineda, 37 Phil. 456)
Sec. 35 Unaccepted offer
3. Presumption of voluntariness: A
confession is deemed to be voluntary and
the confessant has the burden of proving
that it was given as a result of violence,
intimidation, threat or promise of reward or
leniency.
Rule: An offer in writing to pay a particular

sum of money or to deliver a written instrument
or specific property is, if rejected without valid
cause, equivalent to the actual production and
tender of the money, instrument or property.
4. Weight of confession: The confession

constitutes an evidence of a higher order
since it is supported by strong presumption
that no person of normal mind would
deliberately and knowingly confess to a
crime.
THE HEARSAY RULE
PREVIOUS CONDUCT AS EVIDENCE

Sec. 34: Similar acts as evidence.
Rules:
1. Evidence that one did or did not do a certain
thing at one time is not admissible to prove
that he did or did not do the same or similar
thing at another time.
It is well-settled that evidence is not
admissible which shows, or tends to show,
that the accused in a criminal case has
committed a crime wholly independent
from the offense for which he is on trial. A
man may be a notorious criminal, and may
have committed many crimes and still be
innocent of the crime charged on trial.
(People vs. Galo, 143 SCRA 193).
Exception: Previous acts may be
received in evidence to prove a specific
intent or knowledge, identity, plan,
system, scheme, habit, custom or usage,
and the like.
Testimonial Knowledge
Definitions:
1. Hearsay Rule: A witness can testify only
to those facts which he knows of his
personal knowledge; that is, which are
derived from his own perception.
2. Hearsay oral testimony or documentary
evidence as to somebodys words or actions
outside of court where they are offered to
prove the truth of the very natters they
assert; includes all assertions which have
not been subject to opportunity for crossexamination by the adversary at the trial in
which they are being offered against him.
Reasons Why Hearsay is Inadmissible:
1. The source of evidence is not before the
court to be cross-examined.
2. The statement made was not made under
oath or solemn affirmation.
3. The court must consider the personal
appearance and behavior of the witness in
evaluating his credibility.
R E M E D I A L
Underlying this rule are serious

concerns
about
the
worth
(trustworthiness, reliability) of hearsay
evidence.
L A W
Page 187 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
Classification
Statements
of
A I D
I N
R E M E D I A L
Out-of-Court
1. Hearsay those which are considered as

hearsay and therefore are inadmissible; this
occurs when the purpose for introducing the
out-of-court statements is to prove the truth
of the acts asserted therein.
2. Non-Hearsay Those which are not
considered legal hearsay are admissible.
This occurs when the purpose of
introducing the statements is not to prove
the truth of the facts asserted therein but
only the making of the statement, and are
admissible in evidence when the making of
the statement is relevant.
These are the so-called independently
relative statements. The ban on
hearsay evidence does not cover
independently relevant statements,
which tends to prove the tenor and not
the truth of the statement.
3. Exceptions to Hearsay Rule Those
which are hearsay but are considered as
exceptions to the hearsay rule and are
therefore admissible.
EXCEPTIONS
RULE :
TO
THE
a. The statement concerns the crime and

surrounding circumstance of the
declarants death;
b. At the time it was made, the declarant
was under the consciousness of an
impending death;
c. The declarant would have been
competent as a witness had he survived;
and
d. The declaration was offered in a
criminal case for homicide, murder, or
parricide, in which the declarant was the
victim.
The
determination
of
consciousness of impending death
may come from:
1) Utterances;
2) Circumstances; and
3) Actual character and seriousness of
his wounds.
HEARSAY
a. Dying declaration (Sec. 37)

b. Declaration against interest (Sec. 38)
c. Act or declaration about pedigree (Sec.
39)
d. Family reputation or tradition regarding
pedigree (Sec. 40)
e. Common reputation (Sec. 41)
f.
Part of the res gestae (Sec. 42)
g. Entries in the course of business (Sec.

43)
h. Entries in official records (Sec. 44)
i.
Commercial lists and the like (Sec. 45)
j.
Learned treatises (Sec. 46)
k. Business records made by electronic,

optical or other similar means. (Sec. 8,
Rules on Electronic Evidence)
Rules:
1. Requisites for an Admissible of Dying
Declaration:
R E M E D I A L
L A W
Important: The admissibility of an

ante mortem declaration is not
affected by the fact that the
declarant died hours or several days
after making his declaration. It is
sufficient that he believed himself in
imminent danger of death at the
time of such declaration. (People vs.
Erica, 72 SCRA 199).
Reasons for admissibility

1) Necessity the declarants death
renders impossible his taking the
witness stand.
2) Trustworthiness The mind is
induced by the most powerful
consideration to speak the truth.
Effect of Absence of Consciousness
of Impending Death: Though the
dying declaration is not admissible in
evidence, it being done not under
consciousness of an impending death,
nevertheless the same may be admitted
as part of the res gestae. (People vs.
Roca, 162 SCRA 696, 1988)
Ratification of Declaration: A
statement made earlier which would not
render it admissible as dying declaration
becomes admissible if approved and
ratified by the declarant after he had
L A W
Page 188 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
abandoned all hopes of recovery.

(People vs. Babiera, 52 Phil. 97)
Competence as Witness: Where it
was shown that the declarant would not
have been a competent witness if he had
lived, the proferred declarations will not
be received. Accordingly, declarations
are held not to be admissible where the
evidence shows that the declarant was
insane, or incapable of understanding
his statements by reason of partial
unconsciousness, or a child who was too
young to be a competent witness.
L A W
Dying Declaration Favorable to

Accused, Admissible: In cases where
the dying declaration was that the victim
does not know who the offender is, that
he the firearm was discharged
accidentally and not purposedly by the
accused and that the accused was not
the author of the crime, said declaration
was admitted in favor of the accused.
2. Declaration Against Interest
Doctrine of Completeness: The

statement as offered must not be merely
part of the whole as it was expressed by
the declarant; it must be complete as far
as it goes. To be complete does not mean
that it should contain everything that
constitutes the res gestae of the subject
of his statement, but it should express in
full all that he intended to say as
conveying his meaning in respect of
such fact.
In a case, the SC held as
inadmissible the dying statement of a
victim as a dying declaration where the
victim, after she was asked, Apo, apo,
what happened?, merely uttered before
she died, Si Paqui. The Court
observed that the answer was not Apo,
apo, who did this to you? In other
words, the deceased was cut off by death
before she could convey a complete or
sensible communication. The SC cannot
speculate what the rest of her
communication might have been had
death not interrupted her. (People vs.
De Joya, 203 SCRA 403, Nov. 8, 1991)
a. Requisites:
1) the declarant is dead or unable to
testify,
2) It relates to a fact against the interest
of the declarant,
3) At the time he made the declaration,
the declarant was aware that the
same was contrary to his aforesaid
interest, and
4) The declarant had no motive to
falsify and believed such declaration
to be true.
The Interest Must be Actual or
Real: It is essential that at the time of
the statement, the declarants interest
affected thereby should be actual, real or
apparent, not merely contingent, future
or conditional; otherwise, the
declaration would not in reality be
against interest. Similarly, declarations
of a former owner of the property
affected are not admissible.
Admissible Against Third Persons:
If all the requisites for admission of a
declaration against interest are present,
the admission is admissible not only
against the declarant but against third
persons even against the State.
ADMISSION
DECLARATION
1. is made by the party himself, is primary 1. In declarations against interest, the declarant
evidence and competent though he be must first be accounted for as dead, absent from the
presented in court and ready to testify
jurisdiction or otherwise unavailable as a witness
R E M E D I A L
L A W
Page 189 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
2. may be made at any time, before or 2. declarations against interest must have been
during the trial
made ante litem motam, that is, before the
controversy
3. a partys admission need not have
been against his interest at the time
(though often assumed in judicial
opinions); it is enough if it is inconsistent
with his present claim or defense
3. The fact asserted in the declaration must have

been at the time it was made so far contrary to
declarants own interest, pecuniary or moral, that a
reasonable man in his position would not have made
the declaration unless he believes it to be true, (Sec.
38, Rule 130)
4. used only against the party admitting
4. declarations against interest may be admitted

against third persons.
3. Declaration About Pedigree
d. Rule Not Applicable to Adoption:

The absence of proof of an order of
adoption by the court, as provided by
the statute, cannot be substituted by
parol evidence that a child has lived with
a person, not his parent, and has been
treated as a child to establish such
adoption. (Lazatin vs. Campos, 92
SCRA 250)
Definition:
Pedigree The history of family descent
which is transmitted from one generation to
another by both oral and written declarations
and by traditions.
a. Requisites:
1) That declarant is dead or unable to
testify;
4. Family Reputation
Regarding Pedigree
2) b. That pedigree is in issue;
or
Tradition
Definition:
3) That declarant be related to the

person whose pedigree is the subject
of inquiry;
4) That such relationship be shown by
evidence other than the declaration;
and
5) That the declaration was made ante
litem motam or before any
controversy has arisen thereon
b. Birth certificate as evidence of
filiation: It should be one which the
father intervened and which he signed,
an acknowledgement that he is the
father of the child.
c. It is Sufficient if Declarant is
Related to Either Family: It is
sufficient if the declarant is related
either to the family with which such
person in question seeks to connect or to
the person whose pedigree is in
question. (Ferrer vs. Ynchausti, 38 Phil.
905)
R E M E D I A L
Family
reputation
such
declarations and statements as have
come down from generation to
generation from deceased relatives in
such a way that even though it cannot be
said or determined which of the
deceased relative originally made them
or was personally cognizant of the facts
stated therein, yet it appears that such
declarations and statements were made
as family history.
Tradition knowledge, belief or
practices, transmitted orally from father
to son, or from ancestors to posterity.
a. Requisites:
1) There is controversy in respect to the
pedigree of any members of the
family;
2) The reputation or tradition of the
pedigree of the person concerned
L A W
Page 190 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
existed previous to the controversy;

and
L A W
2) The common reputation must have

been ancient,
3) The 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 affinity.
3) The reputation must have been one

formed among a 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
Entries in family bibles or other

family books or charts, engraving
on rings, family portraits and the
like, may be received as evidence
of pedigree.

been existing previous to the
controversy.
Note: The reputation is the one

known in the family circles and
not in the community, except the
reputation with respect to
marriage, which may proceed
from persons who are not
members of the family. (In Re
Florencio Mallari, 59 SCRA 45)
5. Common Reputation
Reputation the common report
which others make about him, the talk
about him that shows the opinion in
which he is held in the community; the
sum or composite of the impressions
spontaneously made by him from time
to time, and in one way or another, upon
his neighbors and acquaintances.
Common Reputation the prevailing
belief in the community as to the
existence of a certain fact or aggregation
of facts.
Rumor a loose talk which the
community has not had an opportunity
to evaluate and accept or reject.
a. Matters which May be Established
by Common Reputation:
c. Proof of Common Reputation:

Monuments, inscriptions in public
places, maps and surveys
d. Requisites Respecting Marriage:
been formed previous to the
controversy, and
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. Requisites
Character:
Respecting
Moral
1) That it is the reputation in the place

where the person in question is best
known.
2) That is was formed ante litem
motam, or previous to the
controversy.
1) Facts of public or general interest

more than 30 years old,
2) Marriage and related facts, and

3) Individuals moral character
b. Requisites Respecting Facts
Public or General Interest:
Unlike that of matters of

pedigree, general reputation of
marriage may proceed from
persons who are not members of
the family.
of
Moral Character the

inherent qualities of the person
impressed by nature or by habit
rather than to any opinion that
may be formed or expressed of
him by others what he really is.
1) The facts must be of public or

general interest and more than 30
years old;
R E M E D I A L
L A W
Page 191 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
REPUTATION
A I D
I N
R E M E D I A L
RUMOR
1.
implies
the 1. implies merely a
definite and final report that is not yet
formation of opinion fully credited
by the community
2. is predicated upon 2. is usually thought
a general trait of of as signifying a
character
particular act or
occurrence
L A W
The rule of res gestae applies

when the declarant himself did
not testify; hence, it does not
apply where the declarant took
the witness stand to testify.
2) Factors
to
consider
in
determining
whether
the
statement is spontaneous or
not:
a) The time that has elapsed
between the occurrence of the
act or transaction and the
making of the statement.
2.
cannot
be
disproved by rumor
b) The place where the statement

was made.
6. Part of the Res Gestae

Res Gestae literally means
transactions or things done; refers to
those exclamations and statements
made by either the participants, victims,
or spectators to a crime immediately
before, during or immediately after the
commission of the crime, when the
circumstances are such that the
statements were made as a spontaneous
reaction or utterance inspired by the
excitement of the occasion and there
was no opportunity for the declarant to
deliberate and to fabricate a false
statement.
c) The condition of the declarant

when he made the statement.
d) The presence or absence of
intervening occurrences between
the occurrence and the statement
relative thereto.
e) The nature and circumstances of
the statement itself.
Verbal Acts utterances which
accompany some act or conduct to
which it is desired to give a legal effect.
1) Requisites:
Classification of Res Gestae
a) Act or occurrence characterized

must be equivocal;
1) Spontaneous exclamations, and

or
b) Verbal acts must characterize or

explain the equivocal act;
Spontaneous
Statement
a
statement
or
exclamation
made
immediately
after
some
exciting
occasion by a participant or spectator
and asserting the circumstances of that
occasion as it is observed by him.
c) Equivocal act must be relevant to

the issue; and
2) Contemporaneous
verbal acts
statements
1) Requisites:
a) There must
occurrence;
be
startling
d) Verbal
acts
must
be
contemporaneous with equivocal
act.
Equivocal Act An act that is
ambiguous.
b) The statement is spontaneous,

made immediately before, during
or after a startling occurrence;
and
c) It relates to the circumstances of
such occurrence.
R E M E D I A L
Dying Declaration may be

Regarded as Part of the Res
Gestae: Even if a statement is not
admissible as a dying declaration,
the same may still be admitted as
part of the res gestae where it was
made immediately after the startling
occurrence.
L A W
Page 192 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
7.
A I D
I N
R E M E D I A L
L A W
8. Entries in Official Records
SPONTANEOUS
EXCLAMATIONS
VERBAL ACTS
The principal fact is

a startling
occurrence
The principal fact is

an equivocal act
1) That the entry was made by a public

officer or by another person specially
enjoined by law to do so;
The statement may

precede, accompany
or succeed the
startling occurrence
Statements must
accompany the
equivocal act
The statements need

not explain the
principal face
Statements must
explain the equivocal
act an give it legal
significance
2) That it was made by the public

officer in the performance of his
duties, or by such other person in
the performance of a duty specially
enjoined by law; and
a. Requisites:
3) That the public officer or other

person had sufficient knowledge of
the facts by him stated, which must
have been acquired by him
personally or through official
information.
Entries in the Course of Business

In the Ordinary Course of
Business means that the entries have
been made regularly in the management
of the business.
b. Person Making Statement Need

not be a Public Officer : It is enough
if the entrant is a person making a
statement in the performance of a duty
specially enjoined by law. For example,
the parochial records of marriages
prepared by the parish priest or a ships
log book prepared by the ship captain.
Reason: To afford sufficient probability

that the facts are as stated in the
memorandum and necessity, the entries
being the best available evidence.
a. Requisites:
1) Entries must have been made at or
near the time of the transaction, to
which they refer;
9. Commercial Lists and the like

a. Requisites:
2) Entrant must have been in a position

to know the facts stated in the
entries;
1) Statements of matters of interest to

persons engaged in an occupation;
2) Statements must be contained in a
list, register, periodical or other
published compilation;
3) Entries must have been made by

entrant in his professional capacity
or in the performance of his duty;
3) Compilation is published for use by

persons engaged in that occupation;
4) Entries were made in the ordinary or

regular course of business or duties;
and
4) Is generally relied upon by them

therein.
5) Entrant must be deceased or unable

to testify.
b. Duty to Make Entry - It is not
essential that the entrant shall have
been under an absolute duty to make
entry. It is sufficient if the entry was the
natural concomitant of the transaction
to which it relates and usually
accompanies it. A duty self-imposed by
the entrant has been held to satisfy the
rule.
Entries in police blotter It has

no probative value
A report in a newspaper account

is not a commercial list. At most,
it is an analysis or opinion which
carries no persuasive weight.
10. Learned Treatises
R E M E D I A L
Basis: The Alabama Rule standard

medical treatises and works are
admissible in so far as they are relevant
to the issues in the particular case.
Requisite:
L A W
Page 193 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
a. That the court take judicial notice that

the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject, or
b. A witness, expert in the subject, testifies
that the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject.
11. Business Records Made by Electronic,
Optical or other Similar Means
Requisites:
1) A memorandum, report, record or
data, compilation of acts, events,
conditions, opinions, or diagnoses is
made by electronic, optical or other
similar means;
2) It was made at or near the time of or
from transmission or supply of
information;
3) It was made by a person with
knowledge thereof;
4) It was kept in the regular course or
conduct of a business activity, and
such was the regular practice to
make the memorandum, report,
record, or data compilation by
electronic, optical or similar means;
and
5) All of which are shown by the
testimony of the custodian or other
qualified witnesses.
Sec. 47: Testimony or deposition at a
former proceeding.
L A W
b. Identity of parties;
c. Identity of issues; and
d. Opportunity of cross-examination of
witnesses.
1) This rule embraces judicial
administrative proceedings.
or
2. Actual
Cross-Examination
Not
Required: Actual cross-examination of the
witness in the former trial is not a
prerequisite. Failure to appear and crossexamine, when it was in his power, is a
waiver of the privilege, and the testimony
given therein is admissible in a second trial.
OPINION RULE
Opinion an inference or conclusion
drawn by a witness from facts, some of
which are known to him and others
assumed, or drawn from facts, which
although lending probability to the
inference do not evolve it by a process of
absolutely necessary reasoning
Rules:
1. General Rule: The opinion of witness is
not admissible.
Exceptions:
1) Opinion of expert witness (Sec. 49)
2) Opinion of ordinary witness (Sec.
50).
2. Statement of fact as distinguished
from an expression of opinion The
former is susceptible of exact knowledge
while the latter is not.
Definition:
Sec. 49: Opinion of expert witness.
Former Testimony testimony which

has been adduced at an earlier proceeding;
may be classified as an exception to the
hearsay prohibition, or it may be considered
as non-hearsay under the theory that the
requirements of the hearsay concept have
been met.
Expert One possessing, in regard to a

particular subject or department of human
activity, knowledge not usually acquired by
other persons. His qualification as such
must be established before he is allowed to
testify.
Rules:
1. Requisites of Former Testimony:
a. The witness whose testimony is offered
in evidence is dead or unable to testify;
Value of expert testimony: Courts may

place whatever weight they choose on such
testimony depending largely on the value of
assistance and guidance they furnish the
court.
R E M E D I A L
L A W
Page 194 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
Requisites:
a. The subject under examination must be
one that requires the court of the aid of
knowledge or experience such as men
not especially skilled do not have, and
cannot be obtained from the ordinary
witness;
b. The witness
must possess
the
knowledge, skill, experience or training
needed to inform the court regarding the
particular case; and
c. The testimony must be with regard to a
fact in issue.
Ordinary Opinion Evidence that

which is given by a witness who is of
ordinary capacity and who has by
opportunity
acquired
a
particular
knowledge which is outside the limits of
common observation, and which may be of
value in elucidating a matter under
consideration.
an
attached to an individual or thing in the

community.
2. Good moral character Includes at least
common honesty; an absence of proven
conduct or act which has been traditionally
considered as a manifestation of moral
turpitude.
3. Bad moral character It connotes
conduct that shows indifference to the
moral norms of society and the opinion of
good and respectable members of the
community.
Rules:
1. General Rule: The character of a person is
not admissible in evidence.
Sec. 50: Opinion of ordinary witnesses.
Matters on Which
Witness May Testify
L A W
2. Exceptions:
a. Criminal Cases
1) The accused may prove his good
moral character which is pertinent to
the moral trait involved in the
offense charged.
Ordinary
1. The identity of a person about whom he has

adequate knowledge;
2. A handwriting with which he has sufficient
familiarity; and
3. The mental sanity of a person with whom he
is sufficiently acquainted.
2) Unless in rebuttal, the prosecution

may not prove his bad moral
character which is pertinent to the
moral trait involved in the offense
charged.
The witness may also testify on his

impressions of the emotion, behavior,
condition or appearance of a person
However, it must be limited to those
opinions or inferences which are
rationally based on the perception of the
witness and helpful to a clear
understanding of his testimony or the
determination of the fact in issue.
Unless and until the accused

gives evidence of his good moral
character, the prosecution may
not introduce evidence of or
otherwise seek to establish his
bad character.
3) The good or bad moral character of

the offended party may be proved if
it tends to establish in any
reasonable degree the probability or
improbability of the offense charged.
CHARACTER EVIDENCE
Definition:
1. Character the aggregate of the moral
qualities which belong to and distinguish an
individual person; the general result of ones
distinguishing attributes; the estimate
R E M E D I A L
Thus, one charged with theft

might offer evidence of honesty,
while someone accused of
murder might show that he is
peaceful, but not vice versa.
On a charge of rape, the

character of the woman is not
ordinarily directly in issue, but
evidence of previous unchastity
may be circumstantially relevant
and admissible on the question
of her consent, where absence of
L A W
Page 195 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
consent is an essential element

of the crime.
a. Criminal Cases: The burden of proof

is with the prosecution by reason of the
presumption of innocence.
b. Civil Cases
b. Civil Cases:
1) Evidence of the moral character of a

party in civil case is admissible only
when pertinent to the issue of
character involved in the case.
2) Evidence of good character or
reputation is not relevant in the first
instance in a civil action or where
the reputation of the party has not
been attacked by evidence of bad
character.
As to Witnesses in Civil and
Criminal Cases; Rule: Evidence of
the good character of a witness is not
admissible until such character has been
impeached.
L A W
1) the plaintiff has the burden of

proof to show the truth of his
allegations if the defendant raises a
negative defense
2) the defendant has the burden of
proof if he raises an affirmative
defense on the complaint of the
plaintiff.
3. DEGREE OF PROOF THAT SATISFIES
THE BURDEN OF PROOF
a. CRIMINAL CASES
1) To sustain conviction- Evidence of
guilt beyond reasonable doubt.
2) Preliminary
Investigation
Engender a well founded belief of
the fact of the commission of a
crime.
A witness may be impeached by the

party against whom he was called, by
evidence that his general reputation for
truth, honesty, or integrity is bad, but
not by evidence of particular wrongful
acts, except that it may be shown by the
examination of the witness, that he has
been convicted of an offense. Until such
moral character has been impeached,
the evidence of the good character of a
witness is not admissible.
3) Issuance of warrant of arrest Probable cause. i.e., that there is a

reasonable ground to believe that the
accused has committed an offense.
b. CIVIL CASES:
evidence
Preponderance of
4. HIERARCHY OF EVIDENCE
RULE 131
a. proof beyond reasonable doubt
BURDEN OF PROOF AND

PRESUMPTIONS
b. clear and convincing evidence

c. preponderance of evidence
Definitions:
d. substantial evidence
1. Proof the establishment of a requisite

degree of belief in the mind of the trier of
fact as to the facts in issue; the cumulation
of evidence that persuades the trier of facts.
Rules:
1. Burden of Proof/ Risk of NonPersuasion: the duty of a party to present
evidence on the facts in issue necessary to
establish his claim or defense by the amount
of evidence required by law.
2. UPON WHOM BURDEN OF PROOF
RESTS:
Burden of Evidence- logical necessity on

a party during a particular time of the trial
to create a prima facie case in his favor or to
destroy that created against him by
presenting evidence.
BURDEN OF
PROOF
BURDEN OF
EVIDENCE
Never shifts and

remains throughout
the entire case
exactly where the
pleadings originally
placed it
Shifts to one party

when the other has
produced sufficient
evidence to be
entitled to a ruling in
his favor
R E M E D I A L
L A W
Page 196 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
Is connected with
the pleadings
Has no necessary
connection with the
pleadings but is
determined by the
progress of the trial.
Is on the party who

asserts the
affirmative of the
issue at the
beginning of the case
and continues on
him throughout the
case
Is the going forward

with evidence and
passes from party to
party
I N
R E M E D I A L
the cause of action or defense, such

negative allegation does not have to be
proved if it is only for the purpose of
denying the existence of a document
which should properly be in the custody
of the adverse party.
In criminal cases, it is not incumbent
upon the prosecution to adduce positive
evidence to support a negative averment
the truth of which is fairly indicated by
the established circumstances and
which, if untrue, could readily be
disproved by the production of
documents or other evidence probably
within the defendants control or
possession.
In both civil and criminal cases, the

burden of evidence lies on the party
who
asserts
an
affirmative
allegation.
PRESUMPTIONS
Definitions:
5. UPON WHOM BURDEN OF

EVIDENCEE RESTS:
a. CRIMINAL CASES: The
prosecution has to prove its
affirmative allegations in the
information regarding the allegations in
the information regarding the elements
of the crime as well as the attendant
circumstances; while the defense has
to prove its affirmative allegations
regarding the existence of justifying or
exempting circumstances, absolutory
causes or mitigating circumstances.
b.
1. Presumption an inference as to the

existence of a fact not actually known,
arising from its usual connection with
another which is known.
CIVIL CASES: The plaintiff has to

prove his affirmative allegations in the
complaint and the defendant has to
prove the affirmative allegations in his
counterclaim and his affirmative
defenses.
6. PRINCIPLE
OF
AVERMENTS:
L A W
NEGATIVATING
a. GENERAL
RULE:
Negative
allegations need not be proved, whether
in a civil or criminal action.
b. EXCEPTION: Where such negative
allegations are essential parts of the
cause of action or defense in a civil case,
or are essential ingredients of the
offense in a criminal case or defenses
thereto.
However, in civil cases, even if the
negative allegation is an essential part of
R E M E D I A L
a. Classes of Presumption
1) Presumption of Law (Juris) a
deduction which the law expressly
directs to be made from particular
facts. When the basic fact is
established in an action, the
existence of the presumed fact must
be assumed.
2) Presumption
of
Facts
(Hominis) a deduction which
reason draws from the facts proved
without an express direction to that
effect. It has no significance as to the
duty of one or of the other party to
produce evidence, because there is
no rule of law attached to it.
b. Classes of Presumption Juris
1) Conclusive Presumption (jure
et de jure) one which cannot be
overcome by evidence to the
contrary.
2) Disputable Presumption (juris
tantum) one which is satisfactory
if uncontradicted, but may be
contradicted and overcome by other
evidence.
L A W
Page 197 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. Inference a fact or proposition deducted

by process of reasoning as a logical
conclusion from other facts.
PRESUMPTION
INFERENCE
is a conclusion of a
rule or law which
shall be made from
proof of certain facts
is a deduction or
conclusion that can
be drawn from a
premise established
by the proofs in the
case.
L A W
2) Elements of Estoppel in Pais as

to Party Claiming Estoppel:
a) Lack of knowledge or of the
means of knowledge of the truth
as to the facts in question;
b) Reliance in good faith, upon the
conduct or statement of the party
to be estopped; and
c) The action or inaction based
thereon of such character as to
change the position or status of
the party claiming the estoppel,
to his injury, detriment, or
prejudice.
Rules:
b. Estoppel Against Tenant: The tenant

is not permitted to deny the title of his
landlord
at
the
time
of
the
commencement of the relation of
landlord and tenant between them.
1. Presumption of Innocence and Prima

Facie Case: The presumption of innocence
is a rule of substantive law existing before
any evidence is offered and accompanying
the accused throughout the trial down to the
moment of his conviction. Under the burden
of proof, the prosecution is compelled in the
first instance to make out a prima facie case
proving the essential facts embraced in the
criminal transaction alleged.
2. Classes of Conclusive Presumption

a. Estoppel in Pais: Whenever a party
has, by his own declaration, act, or
omission, intentionally and deliberately
led another to believe a particular thing
is 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.
1) Elements of Estoppel in Pais as
to Party Estopped:
What a tenant is estopped from

denying is the title of his landlord at
the time of the commencement of
the landlord-tenant relation. If the
title is one that is alleged to have
been acquired subsequent to the
commencement of that relation, the
presumption will not apply. The
tenant may show that the landlords
title has expired or been conveyed to
another or himself.
3. WHEN
PRESUMPTION
OF
EVIDENCE
WILFULLY
SUPPRESSED WOULD BE ADVERSE
IF PRODUCED will NOT apply:
a) Conduct amounting to false

representation or concealment of
material facts, or at least
calculated
to
convey
the
impression that the facts are
otherwise than, and inconsistent
with those which the party
subsequently
attempted
to
assert;
a. if the evidence that is withheld is merely

corroborative or cumularive;
b. if the evidence is at the disposal of or
equally available to both parties;
c. if the suppression is an exercise of a
privilege.
b) Intent or at least expectation that

the conduct shall be acted upon
by, or at least influence the other
party; and
a) the letter was properly addressed

with postage prepaid, and
b) that it was actually mailed.
c) Knowledge,
actual
or
constructive, of the real facts.
R E M E D I A L
For the presumption that A

LETTER DULY DIRECTED AND
MAILED WAS RECEIVED IN A
REGULAR COURSE OF THE MAIL
to arise, it must be proved that:
L A W
Page 198 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
4. Presumption to What Marriage a

Child Was Conceived; Requisites
a. To first marriage
1) The mother must have married
again WITHIN 300 days from the
termination of her first marriage;
7. Disputable Presumptions Relating to

Digital
Signatures:
Upon
the
authentication of a digital signature, it shall
be presumed, in addition to those
mentioned above, that:
a. The information contained
certificate is correct;
2) The child was BORN WITHIN the

same 300 days AFTER the
termination of the former marriage
of his mother;
in
b. The digital signature was created during

the operational period of a certificate;
c. No cause exists to render a certificate
invalid or revocable;
3) The child was BORN BEFORE 180

days after the solemnization of his
mothers second marriage.
b.
L A W
d. The message associated with a digital

signature has not been altered from the
time it was signed; and,
To second marriage:
e. A certificate had been issued by the

certification authority indicated therein.
1) The mother must have married

again WITHIN 300 days from the
termination of her first marriage;
RULE 132
2) The child was BORN WITHIN the

same 300 days AFTER the
termination of his mothers first
marriage;
PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESSES
3) The child was BORN AFTER 180

days following the solemnization of
his mothers second marriage.
Section 1. Examination to be Done in

Open Court
5. No Presumption of Status of a Child:

There is no presumption of legitimacy or
illegitimacy of a child born AFTER 300 days
following the dissolution of the marriage or
the separation of the spouses. Whoever
alleges the legitimacy or illegitimacy of such
child must prove his allegation.
1. HOW ORAL EVIDENCE GIVEN: The

usual way of presenting oral testimony is to
call the witness to the stand and ask him
questions. The testimony of witnesses is
elicited by interrogation or the propounding
of questions.
Rules:
Purpose: to enable the court to judge the

credibility of the witness by:
6. Disputable
Presumptions
on
Electronic
Signature:
Upon
the
authentication of an electronic signature, it
shall be presumed that:
1) the witness way of testifying,

2) their intelligence and
a. The electronic signature is that of the

person to whom it correlates;
b. The electronic signature was affixed by
that person with the intention of
authenticating
or
approving
the
electronic document to which it is
related or to indicate such persons
consent to the transaction embodied
therein; and
3) their appearance
2. Questions propounded to a witness
must:
c. The methods or processes utilized to

affix or verify the electronic signature
operated without error or fault.
R E M E D I A L
a. BE relevant;
b. NOT be indefinite or uncertain;
c. NOT be argumentative;
d. NOT call for conclusion of law;
e. NOT call
evidence;
f.
for
opinion
or
hearsay
NOT call for illegal answer;
L A W
Page 199 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
g. NOT
call
testimony;
for
A I D
I N
R E M E D I A L
self-incriminating
Rules:
1. THE BILL
WITNESS:
h. NOT be leading;
i.
NOT be misleading;
j.
NOT tend to degrade reputation of

witness;
OF
c. Not to be examined except only as to

matters pertinent to the issue;
3. Effect of Failure to Take Oath or

Affirmation: It is generally held that
where a witness testifies without having
sworn, the judgment will be set aside if the
error is not discovered until after judgment .
(Herrera).
d. Not to give an answer which will tend to

subject him to a penalty for an offense
unless otherwise provided by law;
e. Not to give an answer which will tend to
degrade his reputation, unless it be to
the very fact at issue or to a fact from
which the fact in issue would be
presumed. But a witness must answer to
the fact of his previous final conviction
for an offense.
However, the right to have a witness

sworn may be waived if the other party
fails to object to the taking of the
testimony of a witness without the
administration of an oath.
Under Section 1, Rule 71, the refusal to
be sworn or to answer as a witness
constitutes direct contempt of court.
Note: A witness may be required to

testify even if his answer may be the
basis of a civil liability.
The exception under letter d. refers to
IMMUNITY STATUTES wherein the
witness is granted immunity from
criminal prosecution for offenses
admitted in his testimony, e.g., under
Section 8, R.A. 1379, the law providing
for the forfeiture of unlawfully required
property; and under P.D. 749, in
prosecutions for bribery and graft.
Section 3. Rights and Obligations of a

witness
OF
RIGHTS
b. Not to be detained longer than the

interests of justice require;
NOT call for a narration.
CLASSIFICATION
STATUTES:
OF
a. To be protected from irrelevant,

improper, or insulting questions, and
from harsh or insulting demeanor;
k. NOT be repetitious;
l.
L A W
IMMUNITY
1. Use immunity- only prohibits the use of

witness compelled testimony and its fruit in
any manner in connection with the criminal
prosecution of the witness. It does not
render a witness immune from prosecution
despite invocation of right against selfincrimination.
2. Transactional
immunitygrants
immunity to the witness from prosecution
for an offense to which his compelled
testimony relates.
For purposes of evidence, right against selfincrimination refers only to testimonial
compulsion.
Right against self-incrimination is grated
only to individuals, hence, a corporation
CANNOT invoke tjhat privilege as the
question testimony can come only from a
corporate officer or employee who has a
personality distinct from that of a
corporation.
WITNESS PROTECTION, SECURITY,

AND BENEFIT ACT (RA 6981)
Sec. 10. State witness.
Definition:
State Witness- person who has participated in
the commission of a crime and desires to be a
witness for the state shall be admitted into the
program whenever the following circumstances
are present:
1. the offense in which his testimony will be
used is a grave felony as defined under RPC
or its equivalent under special laws;
2. absolute necessity for his testimony;
R E M E D I A L
L A W
Page 200 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
3. there is no direct evidence available for the

prosecution of the offense committed;
4. his testimony can be substantially

corroborated on its material points;
1) Questions calling for conclusions or

opinions, except when opinion
testimony is permissible.
6. he has not at any time been convicted of any

crime involving moral turpitude.
2) Repetitive questions.
3) Compound questions or those which
embraces more than one inquiry to
be answered.
Before any person is admitted into the

program he hall execute a sworn
statement describing in detail the
manner and his participation therein.
(Sec. 11)
Admission into the program shall entitle

such state witness to immunity from
criminal prosecution for the offenses in
which his testimony will be given and
used.
(Sec. 12)
4) Erroneous assumption that a

material fact in issue has been
proved or that the witness has given
certain testimony.
2. CROSS-EXAMINATION
an
examination to rebut matters stated in the
direct examination and any inference or
deductions which may be drawn therefrom.
Failure without just cause when lawfully

obliged to do so, shall be prosecuted for
contempt if he testifies falsely or
evasively, he shall be removed and shall
be subject to contempt or criminal
prosecution. (Sec. 13)
Secction 4. Order in the examination of
an individual witness.
Order:
1. direct examination;
2. cross-examination;
3. redirect examination;
4. re-cross examination.
Rules:
1. DIRECT
EXAMINATION
examination-in-chief of a witness.
GENERAL RULE: Testimony
narrative form is NOT allowed.
When allowed by the trial court.

(People vs. Davis, 6 Cal. App. 229,
91 Pac. 810)
Limitations on Direct Examination
5. he does not appear to be the most guilty;

and
If his application is denied, said sworn

statement and other testimony given in
support of said application shall NOT be
admissible in evidence.
the
in
PURPOSES:
1) to discredit the witness;
2) to discredit the testimony of the
witness;
3) to clarify certain matters;
4) to elicit admissions from a witness.
Scope
or
Limits
Examination:
Cross-
2) American Rule restricts crossexamination

to
facts
and
circumstances which are connected
with the matters that have been
stated in the direct examination of
the witness.
Witness is her own counsel.

(Thresher vs. Bank, 68 Conn. 201,
36 Atl. 38)
R E M E D I A L
of
1) English Rule a witness is called

to testify to a particular fact, he
becomes a witness for all purposes
and may be fully cross-examined
upon all matters material to the
issue, the examination not being
confined to the matters inquired
about in the direct examination.
Note: Both rules are followed in

the Philippines.
DOCTRINE
OF
INCOMPLETE TETIMONY-
Exceptions:
L A W
GENERAL RULE: When

cross-examination cannot be
L A W
Page 201 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
done or completed due to

causes attributable to the
party who offered the
witness,
the
incomplete
testimony
is
rendered
incompetent
should
be
stricken out of the record.
EXCEPTION:
Where
prosecution witness was
extensively cross- examined
on the material points and
thereafter failed to appear
and cannot be produced
despite a warrant for his
arrest.
A party who voluntarily offers

the testimony of a witness in the
case is bound by the testimony of
said witness, EXCEPT:
4. RE-CROSS-EXAMINATION
an
examination by the adverse party of a
witness after re-direct examination.
a. The adverse party may re-crossexamine the witness on matters
stated
in
his
re-direct
examination and also on such
other matters in the discretion of
the court.
Section 9. RECALLING WITNESS
Rules:
1. GENERAL RULE: A witness cannot be
recalled after the examination by both
parties has been concluded.
2. Exception: When allowed by the court in
the interest of justice.
(1) adverse party;

(2) hostile witness;
LEADING QUESTION one which

suggests to the witness the answer which
the examining party desires.
General Rule: Leading question is

not allowed.
Exceptions:
(3) unwilling witness;

(4) witness required by law to be
presented.
L A W
a) On cross-examination;
HOSTILE WITNESS- may be

considered as such only if so
declared by the court upon
adequate showing of:
b) On preliminary matters;
c) When there is difficulty 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;
(1) his adverse interest;

(2) unjustified reluctance; or
(3) hi having misled the party
into calling him to the
witness stand.
d) Of an unwilling
witness; or
c. Purpose: To complete the answer of a

witness or of adding a new matter which
has been omitted, or of correcting a
possible misinterpretation of testimony.
(People vs. de Guzman, GRN 117217,
Dec. 2, 1996)
R E M E D I A L
hostile
e) Of a witness who is an adverse

party or an officer, director, or
managing agent of a public or
private corporation or of a
partnership or association which
is an adverse party.
3. REDIRECT EXAMINATION a reexamination of the witness by the party

calling him after he has been crossexamined to explain or supplement his
answers given during cross-examination.
b. Questions on matters not dealt with
during the cross-examination may be
allowed by the court in its discretion.
or
MISLEADING QUESTION one

which assumes as true a fact not yet
testified to by the witness, or contrary to
that which he has previously stated.
General
Rule: A
question is not allowed.
Exceptions:
misleading
a) when waived;
L A W
Page 202 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
b) asking hypothetical questions to

an expert witness.
evidence of particular wrongful

acts unless there is a showing of
previous conviction by final
judgment. Existence of pending
information may not be shown to
impeach him. (People vs. Nanas,
GRN 137299, Aug. 21, 2001)
3. PROCEDURE
FOR IMPEACHING
WITNESS BY EVIDENCE OF PRIOR
INCONSISTENT
STATEMENTS
(LAYING THE PREDICATE)
a. The statement must be related to him
with the circumstances of the times and
places and persons present;
d) Other
Modes
Impeachment:
(1) By involving him
cross-examination
b. If the statement be in writing they must

be shown to the witness before any
question is put to him concer5ning
them; and
during
(3) By proving action or conduct

of the witness inconsistent
with his testimony, e.g.,
failure to make an outcry in
rape
4. EXAMINATION
OF
WITNESSES
UNDER
THE
RULES
ON
ELECTRONIC EVIDENCE
(4) By showing bias, interest or

hostile feeling against the
adverse party
a. Method
of
Proof:
Affidavit
Evidence: All matters relating to the
admissibility and evidentiary weight of
an electronic document may be
established by an affidavit stating facts
of direct personal knowledge of the
affiant or based on authentic records.
2) By a Party to His Own Witness:

a) General Rule: A party cannot
impeach the credibility of his
own witness.
b. Cross-Examination of Deponent:
The affiant shall be made to affirm the
contents of the affidavit in open court
and may be cross-examined.
b) Exception: When the witness

he produced or called is an
adverse witness, or one declared
by the court as unwilling or a
hostile witness.
c. Electronic
Testimony:
After
summarily hearing the parties pursuant
above, the court may authorize the
presentation of testimonial evidence by
electronic means.
c) Exception to the Exception:

The adverse witness, or unwilling
or hostile witness cannot be
impeached by evidence of his
bad character.
5. IMPEACHMENT OF WITNESSES: To
impeach a witness means to discredit the
witness testimony. Impeaching a witness is
a fundamental right on cross-examination.
b. Unwilling or Hostile Witness one

declared by the court as such upon
adequate showing:
a. Methods of Impeaching a Witness
1) of his adverse interest;
1) By the Adverse Party
2) unjustified reluctance to testify; or
a) By contradictory evidence
b) By general reputation for truth,
honesty or integrity is bad
3) his having misled the party into

calling him to the witness stand.
inconsistent
6. IMPEACHING
A
WITNESS
BY
EVIDENCE
OF
PRIOR
INCONSISTENT STATEMENTS:
However, a witness
be
impeached
by
a. Laying Down the Predicate a

process of cross-examining a witness
c) By
previous
statements
Note:
cannot
of
(2) By sowing the impossibility

or improbability of his
testimony
c. he must be asked whether he made such

statements, and if so, allowed to
EXPLAIN them
L A W
R E M E D I A L
L A W
Page 203 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
upon the point of prior contradictory

statements.
are limited by normal human

fallibilities
and
suggestive
influences. (People vs. Teehankee,
Jr., GRN 111206-08, Oct. 6, 1995)
1) A witness may be impeached by

evidence that he has made at
different
time
statements
inconsistent with his present
testimony.
b. Out-of-Court
Suspects:
3) Line-ups,
where
a
witness
identifies the suspect from a group
of persons lined-up for the purpose
of identification.
a. Under the maxim falsus in uno, falsus

in omnibus, there is a presumption that
a witness who has willfully given false
testimony in one detail has also testified
falsely in other respects and may be
considered unworthy of belief as to the
rest of his testimony.
c. Totality of Circumstances Test a

test to resolve the admissibility and
reliability of out-of-court identification
of suspects considering the following
factors:
b. However the rule does not really lay

down a categorical test of credibility.
(People vs. Letigo, GRN 112968, Feb. 13,
1997). It is not a positive rule of law or of
universal application. It should not be
applied to portions of the testimony
corroborated
by
other
evidence,
particularly were the false portions
could
be
innocent
mistakes.
Inconsistencies and contradictions on
minor details do not impair the
credibility of witnesses as they are but
natural. (People vs. Pacapac, GRN
90623, Sept. 7, 1995)
1) The witness opportunity to view the

criminal at the time of the crime;
2) The witness degree of attention at
that time;
3) The
accuracy
of
any
prior
description given by the witness;
4) The level of certainty demonstrated
by the witness at the identification
5) The length of time between the
crime and the identification; and
6) The
suggestiveness
identification procedure.
8. IDENTIFICATION TESTIMONY:
Identification
1) Witnessing a crime, whether as a

victim or bystander, involves
perception of an event actually
occurring;
2) The witness must memorize details
of the event; and
of
the
9. WHEN WITNESS MAY REFER TO

MEMORANDUM: This rule permits a
witness to refresh his memory respecting a
fact by anything written or recorded by
himself or under his direction. This
provision applies only when it is shown
beforehand that there is need to refresh the
memory of the witness.
3) The witness must be able to recall

and communicate accurately.
of
2) Mug Shots, where photographs are

shown to the witness to identify the
suspect.
7. Nature of the Rule Falsus in Uno,

Falsus in Omnibus
of
Identification
1) Show-ups, where the suspect alone

is brought face to face with the
witness for identification.
2) Unless a ground is thus laid upon

cross-examination,
evidence
of
contradictory statements are not
admissible to impeach a witness.
a. Components
Testimony:
L A W
Danger of unreliability in eyewitness

testimony arises at each of these
three stages, for whenever people
attempt to acquire, retain and
retrieve information accurately, they
R E M E D I A L
Requisites:
1) The entries were written or recorded
by the witness himself;
2) He made such entries at the time the
events occurred, or immediately
thereafter, or at any other time when
L A W
Page 204 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
L A W
the facts were still fresh in his

memory; and
a) By anyone who saw the

document executed or written; or
3) The writer must assure the court

that when the entries were made,
those entries reflected the truth.
b) By evidence of the genuineness

of the signature or handwriting
of the maker.
10. AUTHENTICATION AND PROOF OF

DOCUMENTS:
Classification of Documents
Any other private document

need only be identified as that
which it s claimed to be.
2) Private Documents that Need

not be Authenticated to be
Admissible
a. Public Documents
1) The written official acts, or
records of the official acts of the
sovereign
authority,
official
bodies and tribunals, and public
officers,
whether
of
the
Philippines, or of a foreign
country;
a) Ancient
Requisites:
Document;
(1) It is more than thirty (30)

years old at the time it is
introduced in evidence;
2) Documents acknowledged before

a notary public except last wills
and testaments; and
(2) It is produced from a custody

where it ought to be had it
been genuine; and
3) Public records, kept in the

Philippines,
of
private
documents required by law to be
entered therein.
(3) It does not bear any sign of

alteration or circumstances
of suspicion.
b) Actionable Document; An
actionable document must be
pleaded:
4) A
document
electronically
notarized in accordance with the
rules promulgated by the
Supreme Court. (Rules on
Electronic Evidence, A.M. No.
01-7-01-SC)
(1) By reciting the substance of

the document in the pleading
and attaching to the pleading
a copy of that document; or
b. All other writings are private.
(2) Without
attaching
the
document to the pleading, by
reciting into the pleading the
entire text of the document.
Note:
In
criminal
law,
documents are classified into
public, official, commercial and
private documents. But when
these types of documents are
offered in evidence, they fall into
either
public
or
private
documents.
11. AUTHENTICATION the introduction of

evidence sufficient to sustain a finding that
it is the writing that the proponent of the
evidence claims it to be; that which is
necessary to establish the genuineness of a
document.
The genuineness and due

execution of the document
are deemed admitted when
NOT denied under oath by
the party against whom it
was pleaded. It is not even
necessary to formally offer it
in evidence.
13. HANDWRITING: The genuineness of
handwriting may be proved:
a. By any witness who believes it to be the
handwriting of such person because:
12. PROOF OF AUTHENTICITY

a. PRIVATE DOCUMENT
1) he has seen the person write; or
1) The due execution and authenticity

must be proved by:
R E M E D I A L
L A W
Page 205 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2) he has seen writing purporting to be

his upon which the witness has acted
or been charged.
b. Paragraph (a) applies whether the

requirement therein is in the form of an
obligation or whether the law simply
provides consequences for the document
not being presented or retained in its
original form.
b. By a comparison, made by the witness or

the court with writings admitted or
treated as genuine by the party against
whom the evidence is offered, or proved
to be genuine to the satisfaction of the
judge.
Handwriting
mandatory.
experts
are
L A W
c. Where the law requires that the

document be presented or retained in
the original form, that requirement is
met by an electronic document if:
not
1) there exists a reliable assurance as to

the integrity of the document from
the time it was first generated in its
final form; and
E- COMMERCE LAW
RA 6792
2) that document is capable of being

displayed to the person to whom it is
to be presented; provided that no
provision of this act shall apply to
vary any and all requirements of
existing laws on formalities required
in the execution of documents for
their validity.
Definitions:
ELECTRONIC DOCUMENT it refers to
information or representation of
information, date, figures, symbols, by
which a right is established or an obligation
extinguished, or which a fact may be proved
and affirmed which is received or produced
electronically.
ELECTRONIC DATA MESSAGE- refers
to information generated, received, sent or
stored by electronic optical or similar
means.
For evidentiay purpose, an electronic

document shall be the functional
equivalent of a written document
under existing laws.
BURDEN OF PROOF: the person

seeking to introduce an electronic
data message or electronic document
in any legal proceeding has the
burden of proving it authenticity by
evidence capable of supporting a
finding that the electronic data
message or electronic document is
what the person claims it to be.
Rules:
1. REQUISITES FOR THE
ADMISIBILITY OF ELECTRONIC
DOCUMENT:
a. Where the law required a document to
be in writing, the requirement is met by
an electronic document if the said
electronic document maintains its
integrity and reliability and can be
authenticated so as be usable for
subsequent reference.
1) The electronic document has
remained complete and unaltered
apart from the addition of any
endorsement or authorized change
which arise in the normal course of
communication, storage and display;
and
RULES ON ELECTRIC EVIDENCE

(August 2001)
Rules:
a. MANNER OF AUTHENTICATION
OF EKLECTRONIC DOCUMENT:
1) Evidence that it had been
digitally signed by the person
purported to have signed the
same;
2) the electronic document is reliable in

the light of the purpose for which it
was generated and in the light of all
relevant circumstances.
R E M E D I A L
2) Evidence that other appropriate

security procedures or devices as
may be authorized by the
Supreme Court or by law for
L A W
Page 206 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
authentication of electronic
document were applied to the
document; or
3) Other evidence showing its

integrity and reliability to the
satisfaction of the judge.
b. AUTHENTICATION OF
ELECTRONIC SIGNATURE: It may
be authenticated in any of the following
manner:
If the foregoing communications

are recorded or embodied in an
electronic document, it shall be
authenticated in the same way as
an electronic document. (Rules
on Electronic Evidence)
2. PUBLIC DOCUMENTS: The admission of

a public record or an entry thereof, must be
evidenced:
a. Domestic Record (a record kept in
the Philippines)
1) By evidence that a method or

process was utilized to establish
a digital signature and verify the
same;
1) By an official publication; or
2) By a copy thereof:
a) attested by the officer having the
custody of the record, or his
deputy;
2) By any other means provided by

law; or
3) By any other means satisfactory
to the judge as establishing the
genuineness of the electronic
signature.
L A W
b) with a certificate that such officer

has the custody
b. Foreign Record (a record kept in a
foreign country)
ELECTRONIC SIGNATURErefers to any distinctive mark,

characteristic and/ or sound in
electronic form, representing the
identity of a person and attached to
or logically associated with the
electronic data message or electronic
document or any methodology or
procedures employed or adopted by
a person and executed or adopted by
such person with the intention of
authenticating or approving an
electronic data message or electronic
document.
1) By an official publication; or
2) By a copy thereof:
a) attested by the officer having the
legal custody of the record, or his
deputy; and
c. AUDIO,
VIDEO,
EPHEMERAL
AND SIMILAR EVIDENCE: It shall
be admissible provided:
b) accompanied by a certificate by a
secretary of the embassy or
legation, consul general, consul,
vice-consul, or consular agent or
by any officer in the foreign
service of the Philippines
stationed in the foreign country
in which the record is kept, and
authenticated by the seal of his
office
1) It shall be shown, presented or

displayed to the court; and
3. PUBLIC RECORD OF A PRIVATE

DOCUMENT: It may be proved by:
a. The original record; or
2) It shall be identified, explained or

authenticated by the person who
made the recording or by some other
person competent to testify on the
accuracy thereof.
A recording of the telephone

conversation
or
ephemeral
communication
shall
be
admissible in the same manner.
b. A copy thereof:
1) attested by the legal custodian of the
record; and
2) accompanied by an appropriate
certificate that such officer has the
custody.
4. NOTARIAL DOCUMENT: A notarial
document is one duly acknowledged before
a notary public. It is a public document. A
R E M E D I A L
L A W
Page 207 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
recital in the certificate of acknowledgment

is primace facie evidence of the execution of
the instrument or document involved.
witness, it may be inspected by the

adverse party.
e. Formal Offer-after the termination of
the testimonial evidence, the proponent
will then make a formal offer and state
the purpose for which the document is
presented. (Sec. 34,Rule 132)
It is admissible in evidence without

further proof.
5. ELECTRONICALLY
NOTARIZED
DOCUMENT: It shall be proved as a
notarial document under the Rules of Court.
It is considered as a public document if
made in accordance with the Rules
promulgated by the Supreme Court.
6. HOW
TO
IMPEACH
JUDICIAL
RECORD: A judicial record is admissible
in evidence in a subsequent action if it is
relevant to an issue involved therein.
f.
Objections- the objection to the

introduction or presentation of the
document shall be made when it is
formally offered in evidence. (Sec. 36 ,
Rule 36)
Rules:
1. Need of Formal Offer:
However, a judicial record may be

impeached by evidence of:
1) want of jurisdiction;
2) collusion between the parties; or
3) fraud in the party offering the
record, in respect to the proceedings
7. DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE:
Rule: Documents written in an
unofficial language shall not be admitted
as evidence.
Exception: When the documents are
accompanied with a translation into
English or Filipino.
Section 34. OFFER AND OBJECTION
Stages in the Presentation
Documentary Evidence:
L A W
of
a. Identification-proof
that
the
document being presented is the same
one referred to by the witness in his
testimony
General Rule: No evidence shall be

admitted which has not been formally
offered. Neither can affidavits be
considered on the assertion alone of the
defense that the same had been
appended to the criminal complaints or
on the ground that their existence had
been admitted by the prosecution.
Formal offer of evidence is essential
because the decision of a judge must rest
solely and strictly upon the evidence
presented during the trial, and no
finding of fact can be sustained without
a solid footing on evidence. (Ala-Martin
vs. Hon. Sultan, GRN 117512, Oct. 2,
2001)
Exception: Evidence not formally
offered to be admitted is allowed
provided the following requirements are
present:
1) The same must have been duly
identified
by
testimony
duly
recorded; and
2) The same must have been
incorporated to the records of the
case.
b. Marking- all exhibits should be marked

to facilitate their identification
c. Authentication- the proof of a

documents
due
execution
and
genuineness if the purpose is to show
that it is genuine of the proof of its
forgery, if the purpose is to show that
the document is a forgery.
d. Inspection- Under Section 18 of Rule
132, whenever a writing is shown to a
R E M E D I A L
Evidence offered in rebuttal is

not automatically excluded just
because it would have been more
properly admitted in the case in
chief. Whether evidence could
have been more properly
admitted in the case in chief is
not a test of admissibility of
evidence in rebuttal. (People vs.
Mazo, GRN 136869, Pct. 17,
2001).
L A W
Page 208 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
2. TIME TO OFFER EVIDENCE:
Where no objection to the question

is made until after the question is
answered, the objectionable feature
of the evidence is deemed waived.
A demurrer to evidence is not an

objection to the admissibility of
evidence.
Consequently,
the
evidence not objected to becomes
property of the case, and all parties
to the case are considered
amendable to any favorable or
unfavorable effects resulting from
the evidence.
a. Testimonial Evidence the formal

offer must be made at the time the
witness is called to testify.
b. Documentary and Object Evidence
the formal offer is not when the said
evidence is exhibited in court, but after
the presentation of a partys testimonial
evidence. Such offer shall be done orally,
unless allowed by the court to be done in
writing.
Note: The defendant cannot offer

his evidence before the plaintiff has
rested.
General Rule: The ruling of the court

must be given immediately after the
objection is made.
3. TIME TO OBJECT TO EVIDENCE

a. Testimonial Evidence objection
must be made immediately after the
offer is made.
Questions propounded in the course

of the testimony shall be made as
soon as the ground therefore
becomes reasonably apparent.
Should a witness answer the

question before the adverse party
had the opportunity to object, and
such objection is meritorious, the
court shall sustain the objection and
order the answer given to be stricken
off the record. (Sec. 39, Rule 132).
b. Object Evidence the objection to the

exhibit must be made at the time of the
presentation of the exhibit, when the
purpose of introducing the same is
made. It is premature to object to an
exhibit at the time it is identified.
Exception: When the court desires to

take a reasonable time to inform itself
on the question presented.
However, if the objection is based on

two or more grounds, a ruling
SUSTAINING the objection on one
or some of them must specify the
ground or grounds relied upon.
1) Oral Evidence it shall be

formally offered to be made part of
the record and offeror may state for
the record the name and other
personal circumstances of the
witness and the substance of his
testimony.
An offer of evidence in writing shall

be objected to within three (3) days
after notice of the offer unless a
different period is allowed by the
court.
Evidence not objected to is deemed
admitted and may be validly
considered by the court in arriving at
its judgment.
The reason for sustaining OR

overruling an objection need not be
stated.
How to Make Offer of Proof
2) Documentary
and
Object
Evidence it shall be formally
offered to be made part of the record
and attached them to the record.
Effect of Failure to Object:

4. TENDER OF EXCLUDED EVIDENCE:

If the trial court rejects an evidence offered
by a party, the partys recourse is to make a
formal offer of proof, stating on the record
what the witness could have testified to
were his testimony not excluded, as well as
attaching to the record any rejected exhibits.
c. Documentary Evidence the

objection must when it is offered in
evidence.
L A W
5. EFFECT
OF
ERRONEOUS
ADMISSION OF EVIDENCE
R E M E D I A L
The English Exchequer Rule A

trial courts error as to the admission of
L A W
Page 209 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
A I D
I N
R E M E D I A L
evidence was presumed to have caused

prejudice
and
therefore,
almost
automatically required a new trial.
Note: This rule has long been laid to

rest even by English appellate
courts.
The Harmless Error Rule An error

in the admission of evidence is
disregarded unless in the opinion of the
appellate court, some substantial wrong
or miscarriage of justice has been
occasioned.
The appellate court gives judgment

after an examination of the entire
record, without regard to technical
errors, defects, or exceptions which
do not affect the substantial rights of
the parties.
Note: This rule superseded the

Exchequer Rule, and is being
followed in our jurisdiction and
applied by the SC in many cases.
b. Criminal Cases:
1) Proof
Beyond
Reasonable
Doubt evidence that produces in
an unprejudiced mind that moral
certainty (not absolute certainty) so
necessary to bring about conviction.
2) Moral Certainty a certainty that
convinces and satisfies the reason
and conscience of those who are to
act upon it.
3) The Equipoise Rule Where the
evidence of the parties in a criminal
case is evenly balanced, the
constitutional
presumption
of
innocence should tit the scales in
favor of the accused. (People vs.
Benemerito, GRN 120389, Nov. 21,
1996)
RULE 133
WEIGHT AND SUFFICIENCY OF
EVIDENCE
Admissibility not Synonymous with
Credibility: The mere fact that evidence is
admissible does not necessarily mean that it
is also credible. The testimony of a witness
may be admissible if relevant but it is not
for this reason alone believable.
Prima facie evidence evidence which,
standing
alone
unexplained
or
uncontroverted, is sufficient to maintain the
proposition affirmed. It is such as, in
judgment of law, is sufficient to establish
the fact, and if not rebutted, remains
sufficient for that purpose.
Rules:
1. QUANTUM OF PROOF:
a. Civil Cases
1) Preponderance of Evidence
evidence which is of greater weight,
or more convincing, than that which
is offered in opposition to it; that
testimony adduced by one side
which is more credible and
conclusive than that of the other.
R E M E D I A L
L A W
If the inculpatory facts and

circumstances are capable of two
or more explanations one of
which is consistent with the
innocence of the accused and the
other consistent with his guilt,
then the evidence does not fulfill
the test of moral certainty and is
not sufficient to support a
conviction. (People vs. Agustin,
GRN 114681, July 16, 1995)
4) Negative Averment Where the

negative of an issue does not permit
of direct proof, or the facts are more
immediately within the knowledge of
the accused, the onus probandi rests
upon him. Stated otherwise, it is not
incumbent upon the prosecution to
adduce positive evidence to support
a negative averment the truth of
which is fairly indicated by
established
circumstances
and
which, if untrue, could readily be
disproved by the production of
documents or other evidence within
the defendants knowledge or
control.
(People
vs.
JulianFernandez, GRN 143850-53, Dec.
18, 2001)
5) Circumstantial Evidence In
order that circumstantial evidence
may constitute proof beyond
reasonable doubt, the following
elements must concur:
L A W
Page 210 of 212
I
C
U
n
s
t
i
E N T R A
n i t e d
t
L
P
u
t
e
B A R
u r s u i
o
P
O
t
f
L
a
w
E R A T I O N S
o f
E x c e l l e
2 0 0
c e
M E M O R Y
a) There is more
circumstance;
A I D
than
I N
R E M E D I A L
L A W
one
b) The facts from which the

inference are derived are proven;
and
c) The combination of all the
circumstances is such as to
produce a conviction beyond
reasonable doubt.
6) Reasonable Doubt does not
mean that which of possibility may
arise, but it is that doubt engendered
by an investigation of the whole
proof and an inability, after such
investigation, to let the mind rest
easy upon the certainty of guilt.
c. Administrative Cases
Substantial Evidence that

amount of relevant evidence which a
reasonable mind might accept as
adequate to justify a conclusion.
2. EXTRAJUDICIAL CONFESSION
a. Rule: An extrajudicial confession made
by an accused shall not be sufficient
ground for conviction.
Exception: When it is corroborated

by evidence of corpus delicti.
b. Corpus
Delicti
the
actual
commission of the crime charged; the
body of the crime or the fact of specific
loss or injury, not the body of person
murdered or object stolen.
This rule means that there should be

some evidence tending to show the
commission of the crime apart from
the confession, such as a death
certificate to prove the fact of death.
oOo
R E M E D I A L
L A W
Page 211 of 212

FEU Remedial Law Memory Aid 2006

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

FEU Remedial Law Memory Aid 2006

Загружено:

Авторское право:

Доступные форматы

M E M O R Y

CBO OVER-ALL CHAIRPERSON: Evangeline Co

Atty. Aeneas Eli Diaz

Atty. Wylie Paler

proceedings are void only

Jurisdiction Over the Subject Matter vs.

Jurisdiction Over the Subject of

Requisites of Judicial Due Process:

The Theory of Political Question refers

Two Judicial Review Powers

Rule: If a case is such that its determination

Grave Abuse of Discretion

The Doctrine of Non-interference in

259, 1984; Santos vs. Bayhon, GRN 88643,

Doctrine of Judicial Stability

The La Naval Doctrines on Jurisdiction

2. Where the court itself clearly has no

2. The question of constitutionality must be

When is Jurisdiction Determined?

I. As to nature, cause or foundation

Doctrine of Adherence of Jurisdiction

1. There must be an actual controversy.

person and based on jurisdiction of the

Summons is served either

It is sufficient that summons

Jurisdiction is over the res

TRIBAL COURTS (R.A. 8371)

Summons is served extraterritorially

participated in the attempt to settle the dispute

THE KATARUNGANG PAMBARANGAY

d. Actions barred by Statute of

Personal Appearance The parties must

Exceptions: Cases where

2. As to Respondent any counterclaim he

judgment of court upon the expiration of ten

Principle of Judicial Hierarchy

1. Power of Adjudication (Judicial Power)

Scope of Rule Making Power of the SC

Petitions for issuance of writs of

2.2.1. Petitions for habeas corpus

II. COURT OF APPEALS

Actions affecting ambassadors and

2.1. with Supreme Court

2.2. with Supreme Court and RTCs

Where the RTC imposed the penalty of

committed by public officials and employees in

election of board of directors appointed by the

In cases where there is no specific allegation

In tax collection cases, judgments,

appellate jurisdiction originally decided by the

the amount thereof shall be considered in

V. REGIONAL TRIAL COURTS

1.2.1. with Supreme Court

corresponding to salary grade 27 and higher, or

1. Criminal cases where one or more of the

6. Summary judicial proceedings brought under

2.1.1. All violations of city or municipal

1.2. Concurrent with RTCs None

3.1.1. Forcible entry and unlawful

3.1.2. All other cases, except probate

3.2.1. Traffic law and rules violations

The defense of ownership contemplated

How to Determine Jurisdiction

1. In foreclosure of property where the value of