LAST MINUTE TIPS

REMEDIAL LAW
BAR OPERATIONS 2015
CIVIL PROCEDURE
1. Distinguish between necessary and indispensable parties.
Indispensable Parties
The action cannot proceed unless
they are joined. Their presence is sine
qua non for the exercise of judicial
power.
No valid judgment if indispensable
party is not joined.
They are those with such an interest
in the controversy that a final decree
would necessarily affect their rights.
(Rule 3 of Rules of Court)

Necessary Parties
The action can proceed even in the absence
of some necessary parties.
Case may be determined in court even if a
necessary party is not joined but the
judgment therein will not resolve the entire
controversy.
They are those whose interests are so far
separable that a final decree can be made in
their absence without affecting them.

2. What is the viatory right of a witness?

It is the right that may be invoked by the 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 in refusing to comply with a subpoena. (Section 10, Rule 21 of the Rules of Court)
3. What is Jurisdictional Estoppel?
Jurisdictional estoppel is where a party is estopped or barred from raising the question of
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, G.R. No. L-21450, April 15, 1968)
4. What is Split-Jurisdiction?
If a case may be appealed to a particular court or judicial tribunal or body, then said court or
judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari, in aid of
its appellate jurisdiction. Split-jurisdiction situation is anathema to the orderly administration
of justice. (The City of Manila v. Judge Cuerdo, G.R. No. 175723, February 4, 2014)
5. (a) What is Omnibus Motion Rule?
The omnibus motion rule demands that all available objections must be included in a party's
motion, otherwise, said objections shall be deemed waived. (Section 8, Rule 15, in relation
to Section 1, Rule 9; Pilipinas Shell vs. Romars International Gases Corporation, G.R. No.
189669, February 16, 2015)
(b) What are the defenses that are not deemed waived under the omnibus motion
rule?
[a] lack of jurisdiction over the subject matter;
[b] there is another action pending between the same parties for the same cause (litis
pendentia);
[c] the action is barred by prior judgment (res judicata); and
[d] the action is barred by the statute of limitations or prescription. (Section 1, Rule 9)
7. Is service of pleadings by a private courier allowed?
NO. Service and filing of pleadings by courier service is a mode not provided in the Rules.
(Palileo vs. Planters Development Bank, G.R. No. 193650, October 8, 2014)
8. When may a motion for reconsideration be dispensed with prior to filing a
petition for certiorari under Rule 65?

(a)

where the order is a patent nullity, as where the court a quo has no jurisdiction;

(b)

where the questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed
upon in the lower court;

(c)

where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government or of the petitioner or
the subject matter of the action is perishable;

(d)

where, under the circumstances, a motion for reconsideration would be useless;

(e)

where petitioner was deprived of due process and there is extreme urgency for
relief;

(f)

where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;

(g)

where the proceedings in the lower court are a nullity for lack of due process;

(h)

where the proceedings was ex parte or in which the petitioner had no opportunity
to object; and

(i)

where the issue raised is one purely of law or public interest is involved. (Nisce
vs. Equitable PCI Bank, G.R. No. 167434, February 19, 2007)

9. What is the test in determining whether there is a class suit?

Whether the suit is or is not a class suit depends upon the attending facts, and the
complaint, or other pleading initiating the class action should allege the existence of the
necessary facts, to wit, the existence of a subject matter of common interest, and the
existence of a class and the number of persons in the alleged class, in order that the court
might be enabled to determine whether the members of the class are so numerous as to
make it impracticable to bring them all before the court, to contrast the number appearing
in the record with the number in the class and to determine whether claimants on record
adequately represent the class and the subject matter of general or common interest. (Atty.
Sylvia Banda, et al. v. Ermita, G.R. No. 166620, April 29, 2010).
10. What are the 2 tests that must be complied with before a subpoena duces
tecum may issue?
i. test of relevancy that the books, documents or other things requested must appear
prima facie relevant to the issue subject of the controversy; and
ii. test of definiteness that such books must be reasonably described by the parties to
be readily identified. (Roco vs. Hon Contreras et.al., G.R. No. 158275, June 28, 2005)
11. Give the similarities and distinctions of a demurrer to evidence in civil cases
and that in criminal cases.

Similarities

Distinctions

DEMURRER in CIVIL CASES

DEMURRER in CRIMINAL CASES
Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited
pleading under the Rules on Summary Procedure because (1) it
similarly expedites the proceedings and (2) it is not among those
mentioned under prohibited pleadings
The ground is the same, that is, INSUFFICIENCY OF EVIDENCE
Only available AFTER the presentation of the evidence of the plaintiff
or prosecution, as the case may be
Court may either grant or deny the Demurrer
More difficult to file because
Easier to file because the prosecution
the plaintiff is only required
is required to prove the guilt of the
to present his case by
accused beyond reasonable doubt
preponderance of evidence

If DENIED - plaintiff presents

evidence

if DENIED - distinguish whether there

had been prior leave of court, thus:
(1) if with leave, accused may
proceed with presentation of his
evidence; (2) if without leave,
accused can no longer present his
evidence
if GRANTED - accused is acquitted;
order of acquittal is NOT appealable;
otherwise, it will be a violation of his
right against double jeopardy

if GRANTED - the case is

dismissed; order of dismissal
is a FINAL order, hence
appealable
if plaintiff appeals and the
appellate court REVERSES Appeal may only be allowed as
defendant is no longer
regards the civil aspect of the case
allowed to present evidence
(Rule 33 and Section 23, Rule 119 of the Rules of Court)
12. What is the remedy against a final judgment in a small claims case?

The remedy is a special civil action for certiorari under Rule 65. Considering the final nature
of a small claims case decision under the above-stated rule, the remedy of appeal is not
allowed, and the prevailing party may, thus, immediately move for its execution.(A.L. Ang
Network vs. Mondejar, G.R. No. 200804, January 22, 2014)
15. (a) What is the Two-Dismissal Rule or the Twin-Dismissal Rule?
The Two-Dismissal Rule provides that dismissals that are based on the following grounds, to
wit:
(1) that the cause of action is barred by a prior judgment or by the statute of limitations;
(2) that the claim or demand set forth in the plaintiffs pleading has been paid, waived,
abandoned or otherwise extinguished; and
(3) that the claim on which the action is founded is unenforceable under the provisions of
the statute of frauds, bar the refiling of the same action or claim.
(Strongworld Construction Corporation vs Perello, GR No 148026, July 27, 2006)
(b) Will the Two-Dismissal rule apply if the prior dismissal was done at the
instance of the defendant?
NO. Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant.
Dismissals upon the instance of the defendant are generally governed by Rule 16, which
covers motions to dismiss. The purpose of the "two-dismissal rule" is "to avoid vexatious
litigation." When a complaint is dismissed a second time, the plaintiff is now barred from
seeking relief on the same claim. (Ching and Powing Properties vs. Cheng, G.R. No. 175507,
October 8, 2014)
16. Distinguish Depositions in Civil cases from criminal cases.
Depositions in civil cases are governed by Rules 23 to 28 while depositions in criminal cases
are governed by Sec. 15 of Rule 119.
Depositions in civil cases may be made before any judge, notary public or person
authorized to administer oaths at any time or place within the Philippines; while depositions
in criminal cases may be made only before the court where the case is pending;
Depositions in criminal cases may only be affected when it satisfactorily appears that a
witness for the prosecution is too sick or infirm to appear at the trial as directed by the court
or has to leave the Philippines with no definite date of returning, while in civil cases, no
specific ground is needed in taking a deposition. (Go et. Al. vs. People, G.R. No. 185527, 18
July 2012)
18. What are the different kinds of consolidation of cases?

(1) Quasi-consolidation - Where all, except one of several actions are stayed until one is
tried, in which case the judgment in one trial is conclusive as to the others. This is not
actually consolidation but is referred to as such.

(2) Actual consolidation - Where several actions are combined into one, lose their separate
identity, and become a single action in which a single judgment is rendered. This is
illustrated by a situation where several actions are pending between the same parties
stating claims which might have been set out originally in one complaint.

(3) Consolidation for trial - Where several actions are ordered to be tried together but each
retains its separate character and requires the entry of a separate judgment. This type of
consolidation does not merge the suits into a single action, or cause the parties to one
action to be parties to the other. (Republic vs. Oribello, 692 SCRA 645)

19. What is the effect of failure to file and serve request for admission?
Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice, a party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal knowledge
of the latter, shall not be permitted to present evidence on such facts (Section 5, Rule 26
RC; Afulugencia vs. Metro Bank, 715 SCRA 399, February 5, 2014)
20. Effect of failure to serve written interrogatories?
Unless as hereinafter allowed nu the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories, may not be compelled by the advrse
party to give testimony in open court, or to give a deposition pending appeal (Section 6,
Rule 25 RC)
21. Are actions for foreclosure and partition incapable of pecuniary estimation
therefore always cognizable by the RTC?
NO. Actions for foreclosure and partition are real actions. Thus, jurisdiction over such actions
is determined by the assessed value of the property involved.
The MTCC has jurisdiction to take cognizance of real actions or those affecting title to real
property, or for the recovery of possession, or for the partition or condemnation of, or
foreclosure of a mortgage on real property. (Barrido vs. Nonato, G.R. No. 176492, October
20, 2014)
20. In Malana vs. Tappa (G.R. No. 181303, September 17, 2009), the Supreme
Court ruled that Section 1, Rule 63 of the Rules of Court does not
categorically require that an action to quiet title be filed before the RTC.
In Sabitsana vs. Muertegui (G.R. No. 181359, August 5, 2013), however, it
was held that it is clear under the Rules that an action for quieting of title
may be instituted in the RTCs, regardless of the assessed value of the real
property in dispute.
What are the distinctions between the two cases of Malana and Sabitsana
so as to reconcile the respective rulings?

Main Issue

Malana vs. Tappa

-2009
jurisdiction of the
RTC over actions for
quieting of title

Sabitsana vs. Muertegui

(2013)
better right over the property

An obiter dictum has been defined as an opinion

expressed by a court upon some question of law
that is not necessary in the determination of
the case before the court. It is a remark made,
or opinion expressed, by a judge, in his decision
upon a cause by the way, that is, incidentally or
collaterally, and not directly upon the question
before him, or upon a point not necessarily involved
in the determination of the cause, or introduced by
way of illustration, or analogy or argument. (Land
Bank vs. Suntay, G.R. No. 188376, December 14,
2011)

Discussion with
respect to the
presence or
absence of breach

Petitioners
Complaint for
quieting of title was
filed after
petitioners already
no discussion on breach
demanded and
respondents
refused to vacate
the subject
property.
Under Section 1, Rule 63, a person must file a
petition for declaratory relief before breach or
violation of a deed, will, contract, other written
instrument, statute, executive order, regulation,
ordinance or any other governmental regulation.
(Martelino vs. National Home Mortgage Finance
Corp., G.R. No. 160208, June 30, 2008)

21. Distinguish between Residual Jurisdiction and Residual Prerogative.

RESIDUAL JURISDICTION
RESIDUAL PREROGATIVE
Section 9 of Rule 41
Section 1 of Rule 9:
i.e.:
protective
orders,
approve
(1) lack of jurisdiction over the
comprises, permit appeals of
subject matter, (2) litis pendentia,
indigent litigants, order execution
(3) res judicata, (4) prescription
pending appeal, and allow the
withdrawal of the appeal
Available at a stage in which the
court is normally deemed to have
lost jurisdiction over the case or
the subject matter involved in the
appeal. This stage is reached
upon the perfection of the appeals
Available on Appeal
by the parties or upon the
approval of the records on appeal,
but prior to the transmittal of the
original records or the records on
appeal.
For the protection & preservation of
To dismiss an action motu propio
rights of the parties, pending
upon the grounds
disposition of the case on appeal
(Katon vs. Palanca, G.R. No. 151149, September 7, 2004)
22. State the rules on venue of civil actions.
1.

Where a specific rule or law provides the venue, the same shall be followed. (Section
4(a), Rule 4)

2.

If, however, there is a stipulation between the parties as to the venue, the same shall
govern. However, in order for such venue stipulation to be binding, it should contain
restrictive words like "only," "solely," "exclusively in this court," "in no other court
save ," "particularly," "nowhere else but/except ," or words of equal import.
(Pacific Consultants vs. Schonfeld, G.R. No. 166920, February 19, 2007)

3.

In cases where there is no rule or law providing for the venue or where there is no
venue stipulation, the venue depends on whether the action is real or personal.
Actions affecting title to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated. (Section 1, Rule
4)
All other actions may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant where he may be found, at the
election of the plaintiff. (Section 2, Rule 4)

23. What are the requisites for the grant of an execution of a judgment pending
appeal or discretionary execution?
(a) there must be a motion by the prevailing party with notice to the adverse party;
(b) there must be good reasons for execution pending appeal;
(c) the good reasons must be stated in the special order.
(Stronghold Insurance v. Felix, G.R. No. 148090, November 28, 2006)
24. Distinguish the provisional remedies in civil cases.
REQUIREMENTS

Preliminary
Attachment

1. There must be a
valid cause of action;
2. There must be a
valid ground (Sec. 1,
Rule 57);
3. The applicant has
no other sufficient
security;
4. The value or the
claim to the property
is at least equal to
the prayer above all
counter-claims.

WHEN FILED

at the
commencemen
t of the action
or at any time
before entry of
judgment

*Affidavit and Bond

BOND

equal to the
value of the
property

3RD PARTY
CLAIMANT

Sec. 14
/additional bond
is equal to the
value of the
property

Preliminary
Injunction

a. Right in esse a
right must be actual,
subsisting and
substantive and not
merely futuristic or
inchoate;
b. There must be a
violation or
threatened violation
of the right;
c. The violation or
threatened violation
of the right will result
in irreparable damage
or injury

at any stage of
an action or
proceeding
prior to the
judgment or
final order

amount fixed
by the court

n/a

1. Affidavit
2. Bond of the
Applicant
3. Bond of the
Receiver

even after
execution of
judgment

two bonds:
one for the
applicant and
one for
receiver

n/a

1. Affidavit
2. Bond twice the
value of the property

at the
commencemen
t of the action
before answer
is filed: once
answer is filed
issues are
joined
including right
to possess.

twice the
value of the
property: for
the cost of the
property and
for damages

Application only

at the
commencemen
t of the action
or at any time
prior to the
judgment or
final order, or
practically
anytime,
because the
decision for
support never
becomes final

none

*Affidavit and Bond

Receivershi
p

Replevin

Support
Pendente
Lite

Sec.7/additional
bond is equal to
the value of the
property

n/a

25. Distinguish certiorari, prohibition, and mandamus under Rule 65.

CERTIORARI

PROHIBITION
Aggrieved party

Petitioner
Respondent

Court, Tribunal or
Officer

Court, Tribunal, Officer,

Person or Corporation

MANDAMUS
Court, Tribunal, Officer,
Person or Corporation

1. Lack of jurisdiction

Grounds

2. Excess of jurisdiction

3. Grave abuse of discretion amounting to lack or

excess of jurisdiction

1. Unlawful
neglect in the
performance of an act
which the law specifically
enjoins as a duty;

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

That judgment be
rendered commanding
and praying the
respondent, immediately
or at some other time to
be specified by the court,
to do the act required to
be done to protect the
rights of the petitioner,
and to pay damages
sustained by the
petitioner by reason of
the wrongful act of the
respondent.
Ministerial

Prayer

That the judgment or

order be annulled or
modified.

That judgment be rendered

commanding the
respondent to desist from
further proceedings in the
action or matter specified
therein.

Functions

Discretionary

Discretionary or ministerial

Common
requirement

No appeal or any plain, speedy or adequate remedy in the ordinary course of law

26. Give the rules on substituted service of summons.

(1)
(2)
(3)
(4)

Impossibility of Prompt Personal Service

Specific Details in the Return
A Person of Suitable Age and Discretion
A Competent Person in Charge

Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that
"impossibility of prompt service should be shown by stating the efforts made to find the
defendant personally and the failure of such efforts," which should be made in the proof of
service. (Manotoc vs. Court of Appeals, G.R. No. 130974 August 16, 2006)
27. Distinguish between Rule 64 and Rule 65.
Rule 64
Where
applicable

Limited to COMELEC and

COA decisions

Period to file

30 days from the notice of

the decision or ruling

Applicability
of fresh
period rule

not applicable

Rule 65
Decision of any other
tribunal, board or officer
exercising judicial or
quasi-judicial functions
Petition shall be filed not
later than sixty (60) days
from notice of the
judgment, order or
resolution.
Applicable

28. Distinguish between amended pleading and supplemental pleading.

Purpose

When allowed

Amended Pleading
To add or strike out an allegation or the
name of any party, or by correcting a
mistake in the name of a party or a mistaken
or inadequate allegation or description in
any other respect.
Amendment as a matter of right:
(a) Any time before a responsive pleading is
served or,
(b) In case of a reply, at any time within ten
(10) days after it is served

Supplemental Pleading

To set forth transactions, occurrences or

events which have happened since the date
of the pleading.

Anytime after the happening of the

transaction, occurrence or events sought to
be supplemented.

After a responsive pleading is served, it

should be filed with leave of court in case of
substantial amendments.

Effect

It supersedes the pleading that it amends.

However, admissions in superseded
pleadings may be received in evidence
against the pleader, and claims or defenses
alleged therein not incorporated in the
amended pleading shall be deemed waived

It does not supersede the pleading that it

supplements.

(Rule 10, Rules of Court)

29. What are the exceptions to the requirement of barangay conciliation?
1. Where one party is the government, or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
3. Where the dispute involves real properties located in different cities and municipalities,
unless the parties thereto agree to submit their difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations, partnership or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
5. Disputes 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;
6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one
(1) year or a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being committed
or further continued, specifically the following:
a. Criminal cases where accused is under police custody or detention (see Sec. 412 (b) (1),
Revised Katarungang Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over
another or a person illegally deprived or on acting in his behalf;
c. Actions coupled with provisional remedies such as preliminary injunction, attachment,
delivery of personal property and support during the pendency of the action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice;

10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Sec. 46
& 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to
certain offices of the Department of Labor and Employment);
12. Actions to annul judgment upon a compromise which may be filed directly in court (See
Sanchez vs. Tupaz, 158 SCRA 459).
(AC No 14-93, July 15, 1993)
30. Give the distinctions of the two kinds of TRO.
How filed
When will take effect

72 hours
Ex- parte
counted from issuance

20 days
Ex- parte
counted from service

When extension allowed

May be extended

General Rule: Beyond

extension
Except:
1. if issued by the Court
of Appeals or a
member thereof, the
temporary restraining
order shall be
effective for sixty (60)
days from service on
the party or person
sought to be enjoined
2. Issued by the
Supreme Court or a
member thereof shall
be effective until
further orders.

CRIMINAL PROCEDURE
1. What cases under the jurisdiction of the Sandiganbayan had been
transferred to the exclusive original jurisdiction of the Regional trial court?
All cases falling under the original jurisdiction of the Sandiganbayan where the information:
(a) does not allege any damage to the government or any bribery; or
(b) alleges damage to the government or bribery arising from the same or closely related
transactions or acts in an amount not exceeding One million pesos (P1,000,000.00).
The cases falling under the jurisdiction of the Regional Trial Court under this section shall be
tried in a judicial region other than where the official holds office. (Section 4, RA 10660, July
28, 2014)
1. Distinguish between amendment and substitution of Information.
Amendment
Ground

formal or substantial
errors

Substitution
a mistake which was made
in charging the proper
offense

10

any time before plea

(matter of right) - may
be done without leave
of court whether
formal or substantial
after plea (matter of
discretion) - formal
amendment may only
be made with leave of
court and when it can
be done without
When
causing prejudice to
Available
the rights of the
accused
whether before or
after plea
(amendment which
downgrades the
nature of the offense
charged in or excludes
any accused from the
complaint or
information) - always
with leave of court
matter of right - file
the amended
Information before the
court;
matter of discretion file a motion for leave
attaching thereto the
amended information;
amendment which
downgrades the
How done
nature of the offense
charged in or excludes
any accused from the
complaint or
information (whether
before or after plea) can be made only
upon motion by the
prosecutor, with notice
to the offended party
and with leave of court
(Section 14, Rule 110)

any time before judgment

the court shall dismiss the

original 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

2. Explain the unique nature of an appeal in a criminal case.

An appeal in a criminal case opens the entire case for review on any question including one
not raised by the parties. When an accused appeals from the sentence of the trial court, he
or she waives the constitutional safeguard against double jeopardy and throws the whole
case open to the review of the appellate court, which is then called upon to render such
judgment as law and justice dictate. (Geroche et.al. vs. People, G.R. No. 179080, November
26, 2014)
3. Give the rules on bail.
MATTER OF RIGHT
DISCRETIONARY
a. Before
or
after a. After conviction in RTC,
conviction in MTC
where
the
penalty
b. Before conviction by
imposed is either:
RTC of an offense b. Not more than 6yrs, or
Requisites
NOT punishable by
a. Above 6yrs but below
death, RP, or Life

11

NOT AVAILABLE
General Rule: After judgment
of conviction has become
final
Exception: Parole
a. After
accused

has

imprisonment
c. Before conviction by
RTC of an offense
punishable by death,
RP or LI, when the
evidence of guilt is
NOT strong

20 yrs (below death,

RP, or LI), AND
b. NOT one circumstance
in Rule 114 Sec. 5 is
present.

commenced
to
serve
sentence (Sec. 24, Rule
113)
b. Requisites
a. Imprisonment exceeds
6 yrs, AND (Rule 113,
Sec. 5)
b. Either
of
the
circumstances
is
present:
1) Accused
is
a
recidivist (RPC, Art.
14(9)),
quasirecidivist (RPC, Art.
62(5)),
or
has
committed
the
crime aggravated
by reiteration (Art.
14(10))
2) Accused
has
previously
sentence, or has
violated the terms
of his bail without
valid
justification
(RPC, Art. 157 to
159)
3) Accused
committed
the
offense
while
under
probation
(P.D. 968), parole
(Act
4103),
or
conditional pardon
(Art. 159)
4) Probability of flight
if released on bail
5) Undue risk that he
may
commit
another
crime
during pendency of
appeal
The
list
is
not
exclusive! (Regalado,
2009th ed., p. 432)
c. Offense punishable by
death, RP, or LI, when
the evidence of guilt is
strong.

(Rule 114)
4. Three Informations were filed against Jo Anne and Antony charging them with
frustrated homicide and 2 counts of less serious physical injuries before the MTC.
Jo Anne and Antony then filed a motion to quash and a motion for the deferment
of the arraignment which were both denied by the MTC. Their motion for
reconsideration having been denied, Jo Anne and Antony filed a petition for
certiorari under Rule 65 before the RTC. Is the remedy correct?
NO. The remedy against the denial of a motion to quash is for the movant accused to enter a
plea, go to trial, and should the decision be adverse, reiterate on appeal from the final
judgment and assign as error the denial of the motion to quash. The denial, being an

12

interlocutory order, is not appealable, and may not be the subject of a petition for certiorari
because of the availability of other remedies in the ordinary course of law. (Enrile vs. Hon.
Manalastas, G.R. No. 166414, October 22, 2014)
5. (a) May the judge motu proprio dismiss a criminal case on his own findings that
there is no probable cause to issue a warrant of arrest?
YES. While the determination of probable cause to charge a person of a crime is the sole
function of the prosecutor, the trial court may, in the protection of one's fundamental right
to liberty, dismiss the case if, upon a personal assessment of the evidence, it finds that the
evidence does not establish probable cause. (Mendoza vs. People, G.R. No. 197293, April 21,
2014)
(b) What is the distinction between executive determination and judicial
determination of probable cause?
Executive
Determination of
Probable Cause
When made?
Whose
function?

during preliminary
investigation
the public prosecutor

Judicial
Determination of
Probable Cause
upon filing of the
Information before the
court
the judge

to determine whether
probable cause exists
and to charge those
to ascertain whether a
For what
whom he believes to
warrant of arrest
purpose?
have committed the
should be issued
crime as defined by
against the accused
law and thus should
be held for trial
(Mendoza vs. People, G.R. No. 197293, April 21, 2014)
6. (a) What are the conditions for the discharge of an accused in order that he
may be a state witness?
(1) Two or more accused are jointly charged with the commission of an offense;
(2) The motion for discharge is filed by the prosecution before it rests its case;
(3) The prosecution is required to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;
c) The testimony of said accused can be substantially corroborated in its material
points;
d) Said accused does not appear to be the most guilty; and,
e) Said accused has not at any time been convicted of any offense involving moral
turpitude. (Jimenez vs. People, G.R. No. 209195 and G.R. No. 209215, September
17, 2014)
7. What is the Berry Rule?
The Berry Rule provides for the requisites of newly discovered evidence under Section 2,
Rule 121 of the Revised Rules of Criminal Procedure as a ground for a new trial, viz:

13

(a) the evidence was discovered after the trial;

(b) such evidence could not have been discovered and produced at the trial with
reasonable diligence; and
(c) that it is material, not merely cumulative, corroborative or impeaching, and is of such
weight that, if admitted, will probably change the judgment. (Dinglasan vs. CA, G. R. No.
145420, September 19, 2006)
8. What is the Terry Search?
The Terry Rule or Terry search provides that (i) a stop-and-frisk situation must precede a
warrantless arrest, (ii) be limited to the persons outer clothing, and (iii) should be grounded
upon a genuine reason, in light of the police officers experience and surrounding conditions,
to warrant the belief that the person detained has weapons concealed about him. (Vergara
vs. People, G.R. No. 170180, November 23, 2007)
Under this rule, a genuine reason must exist, in light of the police officers experience and
surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him. (People vs. Cogaed, G.R. No. 200334, July 30, 2014)
9. Three Informations were filed against XXX charging him with two (2) counts of
rape through carnal knowledge and one (1) count of attempted rape. During trial,
what was proven was rape by sexual assault. The RTC convicted XXX of the
crimes of (i) rape and (ii) acts of lasciviousness.
On appeal, XXX pointed out that he cannot be convicted of the said crimes
because these were not the charges against him in the Informations. Was the RTC
correct in its ruling?
(i) The RTC was not correct in convicting XXX of the crime of rape since he was charged with
rape through carnal knowledge and his conviction for rape by sexual assault would violate
his constitutional right to be informed of the nature and cause of the accusation against him.
(ii) However, the RTC was correct in convicting him of the lesser crime of acts of
lasciviousness under the variance doctrine, which states that 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. When the offense proved is more serious
than and includes the offense charged, in which the case the defendant shall be convicted
only for the offense charged. (People vs. Pareja, G.R. No. 202122, January 15, 2014)
10. (a) What is the nature of the proceedings for an application for a search
warrant?
An application for a search warrant is a "special criminal process," rather than a criminal
action.
It is erroneous to equate the application for a search warrant with the institution and
prosecution of a criminal action in a trial court. It would categorize what is only a special
criminal process, the power to issue which is inherent in all courts, as equivalent to a
criminal action, jurisdiction over which is reposed in specific courts of indicated competence.
It ignores the fact that the requisites, procedure and purpose for the issuance of a search
warrant are completely different from those for the institution of a criminal action.
A warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A
search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special
and peculiar remedy, drastic in its nature, and made necessary because of a public
necessity. (Pilipinas Shell Petroleoum vs. Romars International Gases Corp, G.R. No. 189669,
February 16, 2015)
11. (a) What is/are the remedy/ies against a judgment of acquittal?
i. As regards the criminal aspect, a petition for certiorari under Rule 65 filed by the
Solicitor General.

14

A judgment of acquittal may be assailed by the People in a petition for certiorari under Rule
65 of the Rules of Court without placing the accused in double jeopardy. However, in such
case, the People is burdened to establish that the court a quo acted without jurisdiction or
grave abuse of discretion amounting to excess or lack of jurisdiction. No grave abuse of
discretion may be attributed to a court simply because of its alleged misapplication of facts
and evidence, and erroneous conclusions based on said evidence. Certiorari will issue only
to correct errors of jurisdiction, and not errors or mistakes in the findings and conclusions of
the trial court. (Villareal vs. Aliga, G.R. No 166995, January 13, 2014)
ii. As regards the civil aspect, an ordinary appeal filed by the private complainant.
In criminal cases, the acquittal of the accused or the dismissal of the case against him can
only be appealed by the Solicitor General, acting on behalf of the State. The private
complainant or the offended party may question such acquittal or dismissal only insofar as
the civil liability of the accused is concerned. (Villareal vs. Aliga, G.R. No 166995, January
13, 2014)
(b) What is the Finality of Acquittal Doctrine? What are its purposes?
A judgment of acquittal, whether ordered by the trial or the appellate court, is final,
unappealable, and immediately executory upon its promulgation. This prevents the State
from using its criminal processes as an instrument of harassment to wear out the accused
by a multitude of cases with accumulated trials. It also serves the additional purpose of
precluding the State, following an acquittal, from successively retrying the defendant in the
hope of securing a conviction. And finally, it prevents the State, following conviction, from
retrying the defendant again in the hope of securing a greater penalty. (Villareal vs. Aliga,
G.R. No 166995, January 13, 2014)
(c) Cite the exceptions to the Finality of Acquittal Doctrine.
(1) Where there has been deprivation of due process and where there is a finding of a
mistrial, or
(2) Where there has been a grave abuse of discretion under exceptional circumstances
(Villareal vs. Aliga, G.R. No 166995, January 13, 2014)
15. What is a mittimus?
A mittimus is a process issued by the court after conviction to carry out the final judgment,
such as commanding a prison warden to hold the accused in accordance with the terms of
the judgment.
The final judgment of the court is carried into effect by a process called mittimus.
(Section 16, Rule 124)
16. Does the omnibus motion rule apply in motions to quash search warrants?
YES. The omnibus motion rule applies to motions to quash search warrants provided that
objections not available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress.
In accordance with the omnibus motion rule, therefore, the trial court could only take
cognizance of an issue that was not raised in the motion to quash if:
(1) Said issue was not available or existent when they filed the motion to quash the search
warrant; or
(2) The issue was one involving jurisdiction over the subject matter.
(Pilipinas Shell Petroleoum vs. Romars International Gases Corp, G.R. No. 189669, February
16, 2015)
18. Which will prevail between the dispositive portion/ fallo and the body of a
Decision?
General Rule: The dispositive portion will prevail. This rule rests on the theory that the
fallo is the final order while the opinion in the body is merely a statement ordering nothing.

15

Exception: However, where the inevitable conclusion from the body of the decision is so
clear as to show that there was a mistake in the dispositive portion, the body of the decision
will prevail. (Law Firm of Raymundo Armovit vs. Court of Appeals and Bengson Commercial
Building G.R. No. 154559, October 05, 2011)
19. May a person be entitled to apply for probation after having appealed from
the judgment of conviction of the trial court?
YES. While ordinarily, he would no longer be entitled to probation, if the Supreme Court finds
him guilty only of a lesser crime and holds that the maximum penalty imposed on him
should be lowered, it would be but fair to allow him the right to apply for probation,
considering this new penalty, upon remand of the case to the trial court. (Colinares vs.
People)

EVIDENCE
1. What is the Doctrine of Independently Relevant Statements?
While the testimony of a witness regarding a statement made by another person given for
the purpose of establishing the truth of the fact asserted in the statement is clearly hearsay
evidence, it is otherwise if the purpose of placing the statement on the record is merely to
establish the fact that the statement, or the tenor of such statement, was made. (Espineli
vs. People, G.R. No.179535, June 9, 2014)
2. What is the evidentiary weight of a recantation?
The general rule is that recantations are hardly given much weight in the determination of
a case and in the granting of a new trial. (Tan An Bung vs. CA, G.R. No. L-47747, February
15, 1990) As a rule, a recantation or an affidavit of desistance is viewed with suspicion and
reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable,
because it can easily be secured from a poor and ignorant witness, usually through
intimidation or for monetary consideration. (People vs. Salazar, G.R. No. 181900, October
20, 2010).
The rare exception is when there is no evidence sustaining the judgment of conviction
other than the testimony of a witness or witnesses who are shown to have made
contradictory statements as to material facts under which circumstances the court may be
led to a different conclusion. (Tan An Bung vs. CA, G.R. No. L-47747, February 15, 1990)
3. Distinguish between Factum Probans and Factum Probandum.
Factum Probandum refers to the ultimate fact to be proven, or the proposition to be
established, or that which a party wants to prove to the court. On the other hand, Factum
Probans refers to the evidentiary facts by which the factum probandum will be proved.
(Gomez vs. Gomez-Samson et.al., G.R. No. 156284, February 6, 2007)
4. What is the Sexual Abuse Shield Rule?
Under Section 30(a) of A.M. No. 004-07-SC, otherwise known as the Child Witness Rule, the
following evidence is not admissible in any criminal proceeding involving alleged child sexual
abuse:
(1) Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
(2) Evidence offered to prove the sexual predisposition of the alleged victim.
However, by way of exception, paragraph b of the same Rule provides that evidence of
specific instances of sexual behavior by the alleged victim to prove that a person other than
the accused was the source of semen, injury, or other physical evidence shall be admissible.
5. Will failure to immediately mark the seized drugs automatically impair the
integrity of the chain of custody?
NO. The failure to strictly comply with Section 21, Article II of Republic Act No. 9165, such as
immediately marking seized drugs, will not automatically impair the integrity of chain of
custody because what is of utmost importance is the preservation of the integrity and the

16

evidentiary value of the seized items, as these would be utilized in the determination of the
guilt or innocence of the accused. Section 21 and its IRR do not even mention "marking."
What they require are (1) physical inventory, and (2) taking of photographs. (People
vs. Calantiao, G.R. No. 203984, June 18, 2014)
6. What is the Formal-Offer Rule? Does this rule admit of any exception?
The court cannot consider any evidence that has not been formally offered. Formal offer
means that the offering party shall inform the court of the purpose of introducing its exhibits
into evidence. Without a formal offer of evidence, courts cannot take notice of this evidence
even if this has been previously marked and identified, except when the following
requirements are met:
1. The evidence must have been duly identified by testimony duly recorded, and
2. The evidence must have been incorporated in the records of the case. (Section
34, Rule 132; Sabay vs. People, G.R. No. 192150, October 1, 2014)
7. What is the quantum of evidence that the trial courts are required to ascertain
in passing upon evidence raised in a demurrer to evidence?
The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely
required to ascertain whether there is competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt.
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in
character, weight or amount as will legally justify the judicial or official action demanded
according to the circumstances.
To be considered sufficient therefore, the evidence must prove:
(a) the commission of the crime, and
(b) the precise degree of participation therein by the accused.
(People vs. Go, G.R. No. 191015, August 6, 2014)
8. What is the English Exchequer Rule? Distinguish it from the Harmless Error
Rule.
The rule provides that "a trial court's error as to the admission of evidence was presumed to
have caused prejudice and therefore, almost automatically required a new trial."
The Exchequer rule is no longer applicable.
The harmless error rule is followed in our jurisdiction. In dealing with evidence improperly
admitted in trial, we examine its damaging quality and its impact to the substantive rights of
the litigant. If the impact is slight and insignificant, we disregard the error as it will not
overcome the weight of the properly admitted evidence against the prejudiced party.
(People vs. Teehankee, G.R. Nos. 111206-08, October 6, 1995)
9. What is the Thayerian Doctrine or the Thayer Theory of Rebuttal?
The Thayer theory of rebuttal provides that disputable presumptions (other than the
presumption of legitimacy) fall as a matter of law when evidence has been
introduced which would support a finding of the non-existence of the presumed
fact. The existence of the presumed fact must be assumed unless and until evidence has
been introduced which would justify a jury in finding the non-existence of the presumed fact.
[Hinds vs. John Hancock Mutual Life Insurance Co., 155 Me. 349, 155 A.2d 721 (1959)]
10. What are the requisites for a dying declaration to be admissible in evidence?
(a) the declaration concerns the cause and the surrounding circumstances of the
declarant's death;
(b) it is made when death appears to be imminent and the declarant is under a
consciousness of impending death;
(c) the declarant would have been competent to testify had he or she survived; and

17

(d) the dying declaration is offered in a case in which the subject of inquiry involves the
declarant's death.
(People vs. Gatarin, G.R. No. 198022, April 7, 2014)
12. What is res gestae? When is it considered admissible in evidence?
Res gestae refers to the circumstances, facts, and declarations that grow out of the main
fact and serve to illustrate its character and are so spontaneous and contemporaneous with
the main fact as to exclude the idea of deliberation and fabrication.
The test of admissibility of evidence as a part of the res gestae is, therefore, whether the
act, declaration, or exclamation, is so interwoven or connected with the principal fact or
event that it characterizes as to be regarded as a part of the transaction itself, and also
whether it clearly negates any premeditation or purpose to manufacture testimony. (People
vs. Gatarin, G.R. No. 198022, April 7, 2014)
13. Give the hierarchy of the quanta of evidence. Define each.
i. Overwhelming Evidence
ii. Proof Beyond Reasonable Doubt
Proof beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind. (People vs. Tadepa, G.R.
No. 100354, May 26, 1995)
iii. Clear and Convincing Evidence
This standard should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. (Government of Hongkong vs. Olalia, Jr.)
iv. Preponderance of Evidence
Preponderance of evidence means that the evidence adduced by one side is, as a whole,
superior to or has greater weight than that of the other. It means evidence which is more
convincing to the court as worthy of belief than that which is offered in opposition thereto.
(Siao Aba vs. Atty. De Guzman, A.C. No. 7649, December 14, 2011)
v. Substantial Evidence
Substantial evidence is more than a mere scintilla of evidence. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion, even if
other minds equally reasonable might conceivably opine otherwise. (Miro vs. Mendoza vda.
de Erederos, G.R. Nos. 172532 172544-45, November 20, 2013)
vi. Prima Facie Evidence
Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is
sufficient to establish a given fact, or the group or chain of facts constituting the partys
claim or defense, and which if not rebutted or contradicted, will remain sufficient. Evidence
which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the
issue it supports, but which may be contradicted by other evidence. [H. Black, et al., BLACKS
LAW DICTIONARY 1190 (6th ed.,1990)]
vii. Probable Cause
In Philippine jurisprudence, probable cause has been uniformly defined as such facts and
circumstances which would lead a reasonable, discreet and prudent man to believe that an
offense has been committed, and that the objects sought in connection with the offense are
in the place sought to be searched. It being the duty of the issuing officer to issue, or refuse
to issue, the warrant as soon as practicable after the application therefor is filed, the facts
warranting the conclusion of probable cause must be assessed at the time of such judicial
determination by necessarily using legal standards then set forth in law and jurisprudence,
and not those that have yet to be crafted thereafter. [Columbia Pictures, Inc. v. Court of
Appeals, 329 Phil. 875, 918-919 (1996)]
viii. Circumstantial Evidence
A chain of circumstances can lead the mind intuitively or impel a conscious process of
reasoning towards a conviction. (People vs. Murcia, G.R. No. 182460, March 9, 2010)
Section 4 of Rule 133 of the Rules of Court, circumstantial evidence is sufficient for
conviction if:

18

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
14. Distinguish Marital Privilege Rule from Marital Disqualification.
Spousal Immunity/
Marital
Disqualification
Section 22 Rule 130
may only be invoked
when one spouse is a
party to the action
applies only when the
marriage is existing
at the time the
testimony is being
offered
constitutes a
prohibition against any
testimony for or against
the spouse of the
witness

Marital Privilege
Section 24(a) Rule 130
this privilege may be
claimed whether or not
the spouse is a party to
the action
may be claimed even
after the marriage has
been dissolved
applies only to
confidential
communication
between the spouses

15. What is the Equiponderance of Evidence Rule or Equipoise Rule?

When the scale shall stand upon an equipoise and there is nothing in the evidence which
shall incline it to one side or the other, the court will find for the defendant. The plaintiff
must rely on the strength of his evidence and not on the weakness of the defendant claim. If
the evidence of the plaintiff is stronger than that of the defendant, there is no
preponderance of evidence on his side if such evidence is insufficient in itself to establish his
cause of action. (Valbueco, Inc., vs. Province of Bataan, G.R. No. 173829, June 10, 2013)
16. What is the Doctrine of Adoptive Admission?
An adoptive admission is a partys reaction to a statement or action by another person when
it is reasonable to treat the partys reaction as an admission of something stated or implied
by the other person. (Estrada v. Desierto, G.R. No. 146710-15, April 3, 2001, 356 SCRA 108)
17. PO3 Cambio, posing as the accused Enoy, exchanged text messages with the
other accused in order to identify and entrap them. Are the text messages
admissible in evidence?
YES. [T]he admissibility of the text messages [is] in conformity with the Courts earlier
Resolution applying the Rules on Electronic Evidence to criminal actions. Text messages are
to be proved by the testimony of a person who was a party to the same or has personal
knowledge of them. As the recipient of those messages sent from and to the mobile phone
in his possession, PO3 Cambio had personal knowledge of such messages and was
competent to testify on them. (People v. Enojas, G.R. No. 204894, 10 March 2015)

SPECIAL PROCEEDINGS
1. What is the Bar Rule otherwise known as the Primacy of Criminal Action Rule?
The Bar Rule provides that when a criminal action has been commenced, no separate
petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved
party by motion in the criminal case. (Section 22 of A.M. No. 08-1-16-SC and A.M. No. 07-912-SC)
This rule is applicable in the prerogative writs of amparo and habeas data.

19

2. What is the proper remedy to question a defect in an Environmental

Compliance Certificate (ECC)?
In general, the proper procedure to question a defect in an ECC is to follow the DENR
appeal process. After complying with the proper administrative appeal process, recourse
may be made to the courts in accordance with the doctrine of exhaustion of administrative
remedies. However, in exceptional cases, a writ of kalikasan may be availed of to
challenge defects in the ECC provided that (1) the defects are causally linked or reasonably
connected to an environmental damage of the nature and magnitude contemplated under
the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls under an exception
to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction. (Hon.
Paje vs. Hon. Casino et.al, G.R. No. 207257, G.R. No. 207276, G.R. No. 207282, G.R. No.
207366, February 3, 2015)
3. Discuss the propriety of the privilege of the writ of amparo and its interim
reliefs.
There is basis to grant an applicant the privilege of the writ of amparo if that the illegal
restraint alleged in the case has not yet ceased and there is imminent or continuing
restriction on his liberty. In Castillo v. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA
628, the Court held as follows:
Although respondents release from confinement does not necessarily hinder
supplication for the writ of amparo, absent any evidence or even an allegation
in the petition that there is undue and continuing restraint on their liberty,
and/or that there exists threat or intimidation that destroys the efficacy of
their right to be secure in their persons, the issuance of the writ cannot be
justified.
4. Distinguish between a preliminary citation and a peremptory writ under the
rule on habeas corpus.

When it may
issue

Purpose

Preliminary citation
When the person is
detained under
governmental
authority and the
illegality of his
detention is not patent
from the petition for
the writ of habeas
corpus
To order the
government officer
having custody to
show cause why the
writ should not issue

Peremptory Writ

When the cause of

detention appears to be
patently illegal

To require the
unconditional production
before the court of the
body of the person
detained at the date and
time specified

5. May a foreign judgment be recognized in a special proceeding for cancellation

or correction of entries in the Civil Registry under rule 108?
YES. For Philippine courts to recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign country, the petitioner only
needs to prove the foreign judgment as a fact under the Rules of Court.
Since the recognition of a foreign judgment only requires proof of fact of the judgment, it
may be made in a special proceeding for cancellation or correction of entries in the civil
registry under Rule 108 of the Rules of Court. Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact."
(Fujiki vs. Marinay, G.R. No. 196049, June 26, 2013)
6. Will a petition for change of entries in the birth certificate (i.e., name and sex
from female to male) on account of Congenital Adrenal Hyperplasia (CAH)
prosper?

20

YES. Where the person is biologically or naturally intersex the determining factor in his
gender classification would be what the individual having reached the age of majority, with
good reason thinks of his/her sex.
As for the change of name from a feminine to a masculine name, Considering the
consequence that the change of name merely recognizes his preferred gender, the same
should be allowed. Such a change will conform with the change of the entry in his birth
certificate from female to male. (Republic vs. Cagandahan)
7. May a person successfully petition for a change of name and sex appearing in
the birth certificate to reflect the result of a sex reassignment surgery?
No. A correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108
of the Rules of Court.
There is no special law in the Philippines governing sex reassignment and its effects. The sex
of a person is determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a persons sex made at the time of his
or her birth, if not attended by error, is immutable. (Silverio vs. Republic)
ALTERNATIVE DISPUTE RESOLUTION
1. What is the Doctrine of Separability of Arbitration Clause?
The doctrine of separability or severability enunciates that an arbitration agreement is
independent of the main contract. The arbitration agreement is to be treated as a
separate agreement and the arbitration agreement does not automatically terminate when
the contract of which it is a part comes to an end.
The separability of the arbitration agreement is especially significant to the determination of
whether the invalidity of the main contract also nullifies the arbitration clause. Indeed, the
doctrine denotes that the invalidity of the main contract, also referred to as the
container contract, does not affect the validity of the arbitration agreement.
Irrespective of the fact that the main contract is invalid, the arbitration clause/agreement
still remains valid and enforceable. (Gonzales vs. Climax Mining, Ltd., G.R. No.167994,
January 22, 2007)
2. What are the remedies from a decision of the arbitrator or arbitral tribunal.
The remedies are:
a.
Motion for Reconsideration with the RTC;
b.
Appeal through a Petition for Review on Certiorari from the RTC to the CA;
c.
Appeal by Certiorari to the Supreme Court on questions of law;

21