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Table of contents
CIVIL PROCEDURE
CRIMINAL PROCEDURE
EVIDENCE
SPECIAL PROCEEDINGS
Jurisdiction
Stuff to take note of in jurisdiction:
RTC
Definition the same, as conferred by law, except you have to add that venue is
jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can
agree on venue or it can be subject to waiver.
Jurisdiction over the offense. This is essentially the same as jurisdiction over subject
matter.
Jurisdiction over the person. This is jurisdiction over the person of the accused.
Filing fees are not necessary.
when based on
1.FMV:
2. assessed value: right
title or interest over the
prop
o
o
o
Claim for ejectment due to unpaid rentals of over 400K. Which has
jurisdiction?
MTC. Ejectment is always under MTC, regardless of the claim over
unpaid rentals.
Recovery of possession, not ejectment. Fair market value of property is
1.5M. The assessed value of the property is 80,000. Property is located
in MM. Which has jurisdiction?
RTC, based on assessed value (not FMV) which is over 50K.
Recovery of possession does not necessarily mean ejectment (ex.
Accion publiciana).
Value is determined by assessed value if it involves right, title, or
interest
Ouano case?
There was discussion whether FMV or assessed value dictates.
Assessed value wins.
2. Amount incapable of pecuniary estimation
Examples: rescission, reformation of contract, specific performance
Is expropriation capable of pecuniary estimation?
Expropriation is always filed with the RTC. Though the subject matter
is capable of pecuniary estimation, the action is exclusively instituted
in the RTC.
What about declaratory relief?
RTC always has jurisdiction, and the SC does not except when there
is an issue of constitutionality.
There is no such thing as determination of value; just a determination
of validity.
What about support?
Even if its amount can be determined, the law confers it to the Family
Courts.
Foreclosure of mortgage?
Two views: one says that its always with the RTC, because it only
covers the security of the property. The original action is always for
recovery of money.
The other view is that it must be governed by the value of the security.
3. Family cases/marriage
Includes support, annulment, nullity, etc.
4. Juvenile/agrarian case
5. Other claims, where claim exceeds 300K (OMM) or 400K (MM)
The original text gives lower values. When was it adjusted?
Original costs took effect March 25, 1994
1999 adjusted OMM from 100K to 200K
2004 adjusted both MM and OMM to 400K and 300K respectively
Always take note of the word exceeding so the exact amount is for the lower
court.
small
claims
MTC
CA
SC
How will you address the problem where the claim is for sum of money not
exceeding 100K, and it is outside MM? There is an overlap here between
summary procedure and small claims procedure. Which is preferred?
This is still open for discussion, and is not yet clear.
Sir suggests that the option is upon the complainant, since there is
concurrent jurisdiction of both small claims court or court of summary
procedure.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has concurrent original
jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction,
enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and consuls
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo
warranto, writ of amparo, annulment of judgment
N.B. Its original jurisdiction is exclusive as regards annulment of judgment of
RTC
o Appellate: ordinary appeal (notice of appeal), petition for review, over quasi-judicial
bodies
What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo
warranto, writ of amparo, disciplinary actions over PLUS
Actions against members of the Bar [concurrent with IBP];
actions against ambassadors, public ministers, consuls, etc.;
constitutionality of treaties, laws, proclamations, etc.;
declaratory relief only when there is a question of constitutionality
o Appellate:
decision of CA, decision of CTA en banc, decision of SB, decision of RTC on
pure questions of law;
REMEMBER this motherhood statement: the only way to go up to the SC is
for petition for review on certiorari (RULE 45). This applies to civil and
criminal cases, except if the penalty in a criminal case is death, RP, of life
imprisonment.
Jurisdiction over the person of the defendant:
o 1. Voluntary appearance
By submitting to the jurisdiction of the court; ex. Appearing in court or filing an
answer or filing motion for extension of time without disputing the courts
jurisdiction
o 2. Proper service of summons
Rule 14
Filing fees:
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?
add: determination of filing
You include interest, damages, attorneys fees etc. pay everything that you
fees
disregard: determknation
allege for court fees
of jurisdiction over the
But for jurisdictional purposes, just the principal claim
subject matter
o Rule #3:
Sun Insurance
Filing fees must be paid within prescriptive period or reglementary period (for
appeals or compulsory counterclaims), or else it is deemed prescribed
o Rule #4:
Alday v. FGU Insurance
Permissive counterclaims require docket fees
The claim does not arise from the principal action, but involves the
same parties. This could easily have been filed separately.
Compulsory counterclaims do not require docket fees
BUT read Korean Technologies case of 2009 this is how you answer the
no docket fees on
compulsory or
question whether compulsory counterclaims require filing fees
permissive
From nowhere, this case required that even compulsory
counterclaims
counterclaims have docket fees paid. Korean Technologies cited
Rule 141.
But in practice, based on an SC Resolution, the collection of filing fees
on compulsory counterclaims is suspended. This has not been lifted
yet.
Alday: Payment of filing fees for compulsory counterclaims is not
required. But you have to take note of Korean Technologies now
o Lien on the judgment?
If there are damages granted to the complainant, but there has been lack of
payment of filing fees. The payment of docket fees is a lien on the damages.
What if the claim has already ripened upon the filing of the complaint,
but by omission, but you were not able to allege it. Can this be a basis
for a lien on the judgment?
Proton Pilipinas v. Banque Nacional
There was a claim that has ripened but was not included, and there
were interests that would ripen once the action is pending.
SC said that a claim ripened during the pendency of the case, it can
be a lien on the judgment.
But if you did not allege it, the court cannot grant an award because
you did not pay docket fees.
o What is the rule on deficient or insufficient payment of filing fees?
Rivera v. Del Rosario
fault of party: may not deficiency
fault of coc: may pay deficiency
You have to pay full filing fees. The deficiency must not be based on the fault
of complainant. But if the fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.
Jurisdiction is not automatically lost. Clerk of court makes a deficiency
assessment.
There must be no intention to defraud.
Thornton:
o Husband filed for habeas corpus in RTC Makati to recover child from wife
o What are the two kinds of habeas corpus?
N.B.: there are two kinds of habeas corpus custody of minors and regular
habeas corpus in the Rules of Court
o RTC Makati dismissed the case because the child was allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?
N.B.: Effectivity of writ issued by regular court only enforceable in the
territorial jurisdiction. But CA and SC everywhere.
o Filed with the CA, but was denied because the RTC (Family Courts) have original
jurisdiction over custody of minor Habeas Corpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has jurisdiction, too. The CA and
SC have concurrent jurisdiction over habeas corpus cases.
o But always remember that when you talk about concurrent jurisdiction, you still have
to follow hierarchy of courts.
Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper period, but the complaint was
amended to add additional defendants beyond the 1 year period. Does the court still
have jurisdiction?
o After the lapse of the year period for ejectment, has the claim prescribed?
No. N.B. One year period is not prescriptive period. You just file action
pubiciana with the appropriate court (RTC or MTC, depending on the
assessed value), not the MTC by default (for ejectment).
o HELD: MTC still had jurisdiction for ejectment (based on original complaint.)
Oca:
o Repetition of Tijam v. Sibonghanoy estoppel by laches. After active participation in
a case, you cannot question the courts jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
Usually decisions of QJA go up to the CA under Rule 43. What are the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the Office of the President
o 2. CTA decisions, under amended rules, appealable to the CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the CA although not under
Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions go to the CA, under Rule 43, for administrative cases. But if
there is GADALAEJ, go to the SC, under Rule 65.
Mijares:
o Which court has jurisdiction over enforcement of foreign judgments?
Actions
N.B. as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note
as well that venue is waivable.
o Answer: Theoretically, you can join. But the other party is expected to file a motion
to dismiss on the ground of improper venue. FOLLOW THE GENERAL RULE: The
higher court absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC, the counterclaim is
limited to the jurisdiction of the inferior court.
o What happens to the balance?
Its lost. So its better to file a separate action in this scenario.
Is misjoinder of cause of action a ground for its dismissal?
o No, it will NOT cause dismissal of the principal action.
It is severed and these proceed with separately.
Although there can only be separate proceeding when there is separate filing.
o The court is not duty-bound to proceed with it, especially when it appears that it has
no jurisdiction.
What is a special civil action?
o Covered by special rules.
Parties
The law does not limit it to plaintiffs only it uses party as a generic term, so it can
encompass any party impleaded, if he will benefit or be injured.
Does this concept of real party in interest apply to all cases?
o No. The concept of real party in interest will only apply to private suits.
o Does it apply to a taxpayer suit?
No. Locus standi applies here.
o Does it apply to criminal cases?
[Not answered, but I think not]
o What is the difference from legal standing/locus standi?
real party in interest
This is from public suit filed by a private party. There is a broader policy
vs
concern here, even if there can be benefit or injury as well.
locus standing
o A Congressman does not believe in the act of the President, so he questions it
as part of his legislative prerogative. Is he a RPII?
No. Locus standi applies as well.
Thus, differentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of this act, you suffered
injury.
o You do NOT use legal standing in private suits. Only in public suits.
Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one needs complete
determination of the case.
Who is an indispensable party?
o If not impleaded, there can be no final determination.
o N.B. The codal does not use the word complete. So they are compulsorily joined.
What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?
Yes. The court can issue a valid judgment, although not complete.
o Can you then proceed against the other one, though not impleaded at first?
Yes.
What if there is a solidary obligation, not joint? Ex. X and Y solidarily owe Z PHP
100,000. Z sues.
o [Neither necessary nor indispensable (?)]
o Can you sue X only?
Yes.
o Can there be judgment?
Yes, because the obligation is joint and several (solidary).
o Can you sue Y later on, having recovered from X?
No, because you recovered already.
o Can you sue at the same time?
Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds title; Y has
possession of the property. The action is just for recovery of title. Can you sue X?
o Yes, because X is the proper party.
o
Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment without impleading
X. X is an indispensable party in this case.
What is the failure of failure to implead?
necessary party- non
prejudicial-waivable.-exp: o If it is a necessary party, the general rule is that failure to implead is non-prejudicial.
court orders to implead
There is no waiver of right to implead. There is no waiver UNLESS there is an order
to implead from the court.
indispensible party- court
order- non compliance:
o If it is an indispensable party, the court should order that the indispensable party be
dismissal
if court does not
impleaded (Domingo). If despite this order to implead, the plaintiff did not comply,
order: judgement
the case should be dismissed.
null and void
o What if the court did not notice non-joinder, and thus did not order to implead
the indispensable party, and renders a decision?
The judgment is null and void.
substitution When is there substitution of parties in a civil case? There are three.
-is not
o 1. Death
automatic.
Who should die?
there are
Any party. The law does not distinguish.
certain steps
that need be
This is the most common.
done before
o 2. Change of holder of public position (death, resignation, removal, cease to hold
sub occurs
position)
This is a very limited application, since it just applies to public officers.
o 3. Transfer of interest
1.by death What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death (IMPT)
o Why does the law need to say this?
Because there are actions that are extinguished by death. Examples are
actions that are purely personal to the party
Give examples.
Ex. Contract for Michael Jackson to sing in a party.
Ex. Receipt of a widow of support. When she dies, the support from
widowers estate is gone.
What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
When is the 30 day period counted?
From the FACT of death, and not from the knowledge thereof.
o 2. Give names and addresses of the legal representatives
Who should be legal representatives?
Legal heirs, administrator, or executor
N.B. The law provides for legal heirs, because there is procedure to
be done before appointment of administrator or executor (ex. probate
of the will for the latter).
o 3. Court orders substitution and for the substitute to appear
There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act accordingly.
Same facts. However, there was no successful substitution (i.e. the duties were not
complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are incidentally, heirs of E. Can
there be a valid judgment as to C and D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are already parties. That C and
D are incidentally Es heirs as well does not change the result.
o This is the Brioso case. There is valid judgment only against C and D. It is wrong to
say that C and D automatically substitute for E. There are other heirs who are
affected by this improper automatic substitution.
o [Non-recitation question what is the effect if E is necessary? If E is
indispensable?]
Relate the provisions above. If necessary, you can subsequently file a suit
against Es heirs to complete the judgment. If indispensable, the judgment is
null and void, even against C and D.
2.of a
What are the requisites for substitution of public officer?
public
o 1. Removal/death of public officer and appointment of successor within 30 days
officer
unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the action sued against
o 3. There is substantial need to continue the action
Substitution is no automatic. What are needed to be done to substitute the new
public officer?
o 1. Give notice to the new public officer
o 2. Opportunity to be heard for the new officer
Mere fact that he is inclined to continue the action of the predecessor is not
enough
3. due to Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B assigns the contract
transfer of
to C and C accepts.
interest
o Can the case continue against B despite the transfer of interest?
Yes.
o Can the court order that C be impleaded?
Yes. But there is no substitution here. C is just joined.
o How then can there be substitution?
The court has to order a substitution, not mere impleading. BOTTOM LINE:
there has to be a court order.
In
case
of
death
of a defendant in a sum of money case, will there be substitution?
sum of
(VERY IMPORTANT)
money
case
o Section 20. It will NOT go to the heirs, but it will continue against the estate.
a. defendant
(Remember Succession!)
dies
o This is the special rule against sum of money cases.
o Ratio for this?
A notice of lis pendens will only lie if it is a right, title, or interest over real property.
Outside of this, you cannot avail of a notice of lis pendens.
Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not pleadings. This is
enough for CA to give due course to the petition.
PDIC:
o The main case is for declaratory relief (SCA). The question is whether there can be
execution of such (yes). There can also be a counterclaim, even if declaratory relief
is an SCA and the counterclaim is an ordinary action.
Tolentino v. Natanauan:
o There is no res judicata between recovery of possession and nullity of deed of sale.
o Requisites of res judicata?
A) Former judgment final
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of action
Venue
Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction
is the power given by law to hear, try, and decide cases. Knowing what court is one thing,
but knowing where to file it is different.
There was an agreement to development of a piece of land in Tanay, Rizal to become
a memorial park. The duty of the owner (living in Quezon City) of the piece of land is
to provide property. The duty of the developer (located in Pasig) is to dig up the land,
put drainages, etc. The owner of the land died, and the heirs are now substituting for
their father. They want to rescind the agreement to develop. Where do they file?
o There are two steps in venue problems. First, determine: is it a real action or a
personal action?
Its a personal action. It involves rights and obligations of parties, although
the subject matter involves land.
o Where do you file it?
At the option of the plaintiffs. Either in their principal residence (Quezon City)
or the defendants (Pasig)
o Which court has jurisdiction?
RTC, because it is an action incapable of pecuniary estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the codal provides the
word principal before plaintiff and defendant, so that the plaintiffs will not file the
case before far-flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live
in Batac, Ilocos. Marcos lives in Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
Extrajudicial foreclosure of mortgage is NOT a judicial action. Its not covered by the
Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed
where the property is located.
o But the mere filing and payment of fees (for multiple properties in various areas) can
be paid in one office, as long as it can be established that it covers all areas. But the
actual sale will only be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed where the property is
located.
o But if it is for collection of a sum of money, file it as a personal action.
Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides, or where their conjugal
home is located (special rule in Family Courts issuance)
What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific law provides
otherwise.
On specific venues, as provided by law
o Give an example.
Actions for Quo warranto if the Solicitor general commences it, in can be in
the SC, CA, or RTC of Manila
o What if you want to file an action for perpetuation of testimony?
This is covered by Rule 24 (deposition before action or pending appeal).
Special rule: Place of residence of any expected adverse party or defendant
o What about adoption?
Where the prospective adoptive parents reside
o What about probate?
Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
General rule: RTC where the minor is supposed to be found
Thornton: But if unknown or cannot be found, in the CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu. Plaintiff resides in
Makati, defendant in QC. Where do you file it?
In the MTC of Cebu. Residence in general does not matter.
o What if I file it in Makati?
Yes.
But what will you expect?
Motion to dismiss on the ground of wrong venue, coming from the
defendant.
But what if there was no motion to dismiss, and in the answer, there
was no allegation of improper venue?
There is waiver on the rules of venue.
o
Remember Rule 9, Section 1. This is the general rule on waivers and objections on
grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer
is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional venue.
o If there are words of exclusivity (ex. can only be filed in Cebu, waiving all other
venues), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)
In this case, the stipulation on venue in the principal agreement (PN) applies
to the accessory contract, which is the surety agreement which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed? Apparently, the
defendant did not notice the improper venue, or he decided to waive it. Can the judge
later motu propio dismiss the case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of improper venue.
(Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment
case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited
pleading, an exception is lack of jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of America)
Summary procedure
HELD: Valid action by CA. The court interpreted the rules on summary proceeding
liberally here, because there was presence of a responsive pleading anyway and
there was challenge of the material allegations of fact in the complaint. So the MTC
should have considered it.
Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no answer, and instead of
promulgating judgment, he still called for a preliminary conference.
Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an answer, which was, in
reality, a motion to dismiss. The judge should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an ejectment case?
YES, only provisionally and for the purpose of resolving forcible
entry/unlawful detainer cases. This is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on behalf of the original
parties (as attorneys-in-fact). This special authorization is a valid cause for someone
else to appear in the plaintiffs or defendants behalf.
o What happens when the plaintiff is absent in preliminary conference?
preliminary
Case is dismissed
conference absent
o What happens when the defendant does not appear?
plaintiff: case
dismissed
As if he didnt file an answer. The court can render judgment.
defendant:
o What is the stopgap?
dismissed if he did
Have an explanation OR send a representative
not file an answer
o Where does this rule come from?
Provision on authorization does not appear in the rules on summary
procedure. But the SC applied to Rule 70 suppletorily, the rules of Rule 18
on pretrial and appearance by representative.
Small claims
There is already a form provided for the plaintiff and defendant to fill in.
They just need to attach documents.
o Can there be a counterclaim in a small claim action?
Yes. As long as within jurisdiction of the court, and arising from the same
transaction, and does not require joinder of third parties.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
Yes. (Aldura)
o Will there be presentation of evidence?
Yes, but it is not a strict and formal trial. You can only present the evidence
attached to the claims.
o Is there a preliminary conference?
None mentioned.
o Do the parties have to appear?
Yes, or at least their representatives. Failure for the plaintiff to appear leads
to dismissal without prejudice of the claim. Failure for the defendant to
appear has the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing judge for hearing and
decision within 5 working days from referral
o In a single sala court: Pairing judge hears and decides the case in the court of origin
within 5 working days from referral by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the exception. Failure to refer
to the lupon is not an exception.
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) because there is no plain, adequate, speedy
remedy
Pleadings
o With particularity
If its a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
You can also base your claim on an actionable document. How to do you allege it?
o 1. You can attach or append the document
To show the court that this is where your cause of action arises
o 2. You can reproduce the contents of the document in the pleading en toto
(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?
1) When the adverse party is not a party to the instrument
2) When there is an order for inspection and it is refused
What is the effect of failure to specifically deny under oath an actionable document?
o It is an admission ONLY as to the genuineness and due execution of the actionable
document
But what about the rights and obligations of the parties arising from that document?
o It is up to the court to determine it.
What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
For foreign corporation and service is done to government official designated
by law
What are the defenses available in answer?
o 1) Affirmative defense
If you only hypothetically admit, without raising any defense, what
happens?
In this case, there is no more issue. This will lead to a judgment on
the pleadings (Rule 34)
This occurs when the answer does not tender an issue or admits the
material allegations
o 2) Negative defense
Specific denial of facts alleged essential to the cause of action.
What are the kinds of specific denial?
1) general denial
2) specific denial
3) disavowal of knowledge (lack of knowledge and belief to form a
specific denial)
Is the counterclaim or cross-claim in a separate pleading?
o No.
What is a compulsory counterclaim?
verification
Pre-trial
certificate
of non
forum
shopping
There was a CNFS filed in the first place. What was not attached was the board
resolution showing the authority of the Vice President to sign the CNFS on behalf of
the company. This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal interpretation of this provision
for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This was validly excused by
the court since the party was in the US, and could not sign the pleading in time given
the 15 day period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the first case was dismissed due to lack of
cause of action. When a case is dismissed because of that, it is without prejudice,
and that party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being appealed (here, NLRC
decision) and not the prior one (Labor Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the first case questioned whether there
can be a writ of execution when the parties agreed to compromise in the first place,
when the court dismissed the initial case. The second case was whether the court
approved the compromise agreement in the first place. These are different.
Solar
o Is the rule on personal service mandatory?
Yes. The rule is priority is by personal service. If you cannot do it by
personal service, you can do it by registered mail, but you have to make an
explanation.
o In this case, it was made by registered mail and there was no explanation. For this
reason, the decision of the court to allow it was based on its reasonable discretion.
BUT this is not the rule.
Musa
o What are the material dates here?
Period only commences to run from date of receipt of the decision
Date of filing of the MR
Date of receipt of denial of the MR
There is amendment for civil cases and there is amendment for criminal cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o
o
Default
Bill of particulars
Service
What if I used registered mail, but I got back the return card ALONG WITH the
document itself (showing it is unclaimed). What do you do to prove delivery?
o You have to file the return card plus the unclaimed document, plus before you file,
secure a certification from the post office.
Take note that a return card is required by law to be filed, but in practice, we do not.
What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?
Put an explanation why you did not serve it through personal service
o What if you dont comply?
As if the pleading was not filed.
Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground floor of a condominium
building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o In an action involving right, title, or interest over a property, you annotate it on the
title of the property.
I file a case in the bureau of lands to declare null and void a title. Can this be subject
to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only applies to judicial
cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is the subject of the
action.
o Can you put a notice of lis pendens in a partition case?
Yes.
Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
1) purpose is to molest other party
2) no need for the notice to protect the rights of the parties who caused it
Payongayong:
o Priority of service is ALWAYS personal. If you cannot do it personally, you give an
explanation
o Same as filing priority is personal. Otherwise, you give an explanation.
United Pulp:
o Hypothetical There is a principal who is out of the Philippines, and he
designates X as his attorney-in-fact. Can X sign the certification against nonforum shopping?
In general, he cannot. But in this special case, he can, because the principal
is out of the country.
Summons
Can a middle manager the same rank as Mr. X receive summons for Mr. X?
He must be in charge of receiving summons in the office.
o What does in charge mean?
In charge of the office. President or manager.
For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate Secretary, Corporate
Treasurer, In-house Counsel
o Memorize this. It is a closed list.
But for personal cases of an individual, will the office receive it for you?
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about non-resident and
cannot be found.]
o Is there an exception?
Yes, but its very narrow. But there must a a) resident spouse b) who was
previously appointed as attorney-in-fact.
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
Distinguish.
o Section 14: Defendant is unknown or his whereabouts are unknown.
How do you do this?
Just publish.
Do you even have to try personal service?
No need for personal service (since you dont know him or where he
is).
In what kind of case?
Whatever kind of action, whether in rem or in personam you can do
it by publication, as clarified by the SC.
Not just in rem or quasi in rem anymore.
How does publication in 14 differ from 15 and 16?
In 14, ONLY publication is needed. It does not require service by
registered mail in the last known address.
o Section 15: Extra-territorial service
Against who?
Against a defendant that does not reside in the Philippines and is not
found in the Philippines.
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent interest over property
What are the modes of service?
1. Personal service outside the Philippines
You can still do personal service, in case you find him somewhere in the
Philippines by chance.
Section 14 before limits itself to in rem or quasi in rem. It now extends likewise to
actions in personam.
Motions
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties.
But also give notice to the clerk of court (even if the provision does not say it),
because he schedules the hearings.
o Absence of a notice of hearing has what effect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be filed in court and served to the other party at least three days
before the date of hearing. (Three day notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days from the filing of the
motion
Ex. you file it December 6. The last date you can set the hearing for is
December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally.
But since 2008, this rule has been applied strictly.
Motion to dismiss
Dismissal of Actions
Pre-trial
o
o
o
According to the provision, if there is a good excuse for absence, the consequence
will not vest. You can also authorize someone to appear on his behalf in pre-trial.
What happens next?
o Pre-trial order is issued by the court.
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
o What if it is a criminal case and the prosecution is absent. What happens?
It will be re-scheduled.
o What if the accused is absent?
The prosecution CANNOT present evidence ex-parte because it will violate
the accused persons right to confront witnesses.
o RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE BETWEEN
CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against him, what must be
done?
It must be in writing and signed, by both the counsel and accused.
No such requirement in civil admissions in pre-trial.
Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it also applies in QC and
Manila.
o The judge here is both a mediator and a conciliator and an independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is mandatory that there
will be a new raffle and the new judge who will hear, try, and decide the case is the
trial judge
o This step happens when the Clerk of Court receives the Mediators Report of a
not settled mediation
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
Intervention
But if the rule is an indispensable party, the court will allow intervention even after
judgment.
Can there be a complaint intervention or answer in intervention, or a complaint
against either/all of the original parties?
o Yes, for all.
Nordic:
o There was a mortgage over a vessel to secure a loan. There was a default in the
payment. For this reason, there was an Extra-judicial foreclosure. While the petition
was there, there was a subsequent case filed.
o There was a complaint filed by the crew members of the vessel against the vessel in
RTC Manila (sum of money case).
o The mortgagee sought to intervene in the sum of money case, because it held a
Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a personal cause of
action in order to intervene. Here, the mortgagee had no interest in the sum of
money case. And in this case, the mortgagee can protect its rights in the foreclosure
case.
Subpoena
Types of subpoena?
o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or things
N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
Can the OMB issue a subpoena?
o Yes.
Can the office of the prosecutor issue?
o Yes.
Is the receipt of a subpoena by a respondent in a case filed before the office of the
prosecutor necessary for the office to acquire jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the Office of the
Prosecutor is a statutory right, not constitutional right. You can altogether dispense
with it, or waive it. It is not essential for DP.
o There is an express provision in Rule 112(D) that says failure to receive the
subpoena will not bar the prosecutor from issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convict?
o The judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be authorized by the SC to appear
under subpoena
Can a subpoena be issued by reason of deposition taking to make sure the deponent
comes?
o Yes. Rule 21, Sec. 5
Can a deposition of a deceased person be presented in court? Is this not hearsay?
o It can be presented, as long as it was subjected to cross examine. It is hearsay, but
it can be submitted.
o Is cross examination a necessity?
Yes. This is necessary to exempt it from the hearsay rule.
If you take a deposition, are you compelled to present it in court?
o No.
If you use a part of a deposition, can the rest be presented?
o Yes.
Always distinguish between take and use.
Who are disqualified to be deposition officers? [Memorize; this has not yet been asked]
o 1. Sixth degree of consanguinity from party/employees
o 2. Sixth degree of consanguinity counsel of parties/employees
o 2. Financially interested in the action
Re: irregularities on taking of deposition.
What is the general rule on
errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
Relevance or competency of evidence failure to object is not a waiver
Unless a timely objection could have obviated the defect
When is the period to object?
o The same as the period to file the responsive pleading.
o So to question direct: 10 days (period to file cross)
o To question cross: 5 days (period to file re-direct)
o To question re-direct: 3 days (period to file re-cross)
Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
No need, even if you do not reserve it during pre-trial. Jonathan Landoil
If you take a deposition of a person, do you still have to present the person as a
witness?
o You still have to present him in court, in general. Depositions cannot take the place
of actual physical testimony in court.
o If you fail to cross examine the witness in the deposition, can you still crossexamine him in court?
Yes, you definitely can! Sabio
What are the consequences for non-compliance with order for deposition?
o Can it be dismissed?
Yes, the court can dismiss. There can even be a judgment by default
However, in the old case of Arellano, the court dismissed the case due to
refusal to be subjected to deposition. But the SC said it was wrong. In this
case though, the matter subject to deposition is an incidental matter only, not
the main issue of the case.
Bottom line: it IS a possible result, but fall back on materiality of the matter
Can the court regulate the deposition? (Ex. excluding certain matters)
o Yes.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?
Annoy, embarrass, oppress memorize these words
It is irrelevant
Interrogatories to parties
It is different if you call on the witness the accused himself (in a criminal case)
N.B. Under 2004 guidelines, it is the duty of the judge to issue an order to the parties to
avail of Modes of Discovery under Rules 23, 25-27
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio issue it. The other
modes, you have to apply for.
What is required?
o 1. Also upon motion
o 2. And with good cause shown
When can it be done?
o When the physical or mental condition of a party is in controversy
o Ex. Guardianship, Physical Injuries,
What does in controversy mean?
o It has to be one of the main issues of the case, not just a side matter.
o It does not have to be the only issue, but it has to be in issue.
What is the consequence if the copy of the examination is given to the party
examined?
o There is a waiver of the privilege
o That requesting party can now also ask for previous or subsequent examination on
the same matters of the requested party
o It must refer to the same condition. So if the examination was on the other partys
head for mental examination, she can only ask for similar reports on the mental
condition of that party.
What if the requested party refuses?
o The court may make an order for delivery of the report
o If by chance, that other partys physicians were allowed to testify, their testimonies
can be excluded.
What is the effect of the requested party requesting for a copy of the report made or
taking the deposition of the examining physician?
He waives any privilege in that action or another action involving the same controversy, as
regards testimony of other examining persons, whether before or after
N.B. Privilege of doctor-patient only applies to civil case, not criminal case
Consequences of non-compliance
Trial
Both civil and criminal procedures will not provide for conduct in examination of a witness.
Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the commissioner?
o 1. Requires examination of long account
Consolidation
Demurrer to evidence
Summary judgment
Ex. X wants to make it appear that he does not owe Y anything, but there is a
document where he admits the obligation. Y must file motion for summary judgment
and attach the document.
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ, there could be an issue,
but it is ostensibly sham or fictitious. In JOP, the answer does not tender an issue, or it
admits the material allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable. X owes Y 500K. Y
sues X. X claims its not yet due! Is this something that would lead to summary
judgment or judgment on the pleadings?
o Summary judgment; although there appears to be an issue (X made an issue out of
nothing). It is ostensible, but its actually sham or fictitious.
o Cannot lead to judgment on the pleadings, because there was no admission of
material claims.
Judgments
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?
Cannot be extended
This rule has never been changed. You cannot file an extension on an MR
o So whats the remedy?
Some lawyers suggest filing a supplement. But actually, there must be a new
event or fact that arises to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the judgment (ex. just
one of the issues).
Distinguish an MR from an MNT.
o The grounds are different. In MNT, the grounds are FAME and newly discovered
evidence.
What fraud is needed here?
Extrinsic fraud.
What is mistake?
Mistake of fact in good faith
If theres a mistake of law, the remedy is an MR, not MNT
What is newly discovered evidence?
1. It must be material
2. It was not available during trial despite exercise of due diligence
3. If considered by the court, it could later/change the result
o What are the grounds for MR?
1. Evidence not sufficient to support the judgment
2. Excessive damages
3. Decision contrary to law
What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o Rules 40 and 41 (ordinary appeal) covered by Neypes ruling
Rule 42 (petition for review) no need for Neypes ruling, because the provision itself
provides for it
o Rule 43 (review of QJA) no need as well
o Rule 45 (petition for review on certiorari) 15 day period for MR is counted already
in the period to file an appeal
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41 (ordinary appeal)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals (not all appellate
courts).
o Rule 53 covers MNT in the CA. So that MNT is different from the MNT here. The
MNT in the Court of Appeals only has one ground: newly discovered evidence.
o There are different periods as well
In the MNT in trial court: 15 days from judgment
In the CA: for as long as its an active case (no need to wait for a judgment in
the CA)
Is there a MNT in the SC?
o Rule 56
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that it should do it in the
interest of justice.
o
Execution
In cash.
o Payment must be made to whom?
To the judgment obligee, if available
What if he is not available?
To his representative
What if he is not available?
To the sheriff
o Can payment be effected not by cash (Ex. check or PN)?
Certified bank check is allowed
Or any other form of payment acceptable to the latter
o What if there is no cash?
Go to
Levy on real or personal property
o What will be disposed first?
Choice of judgment obligor
If he doesnt make a choice, personal property is prioritized over real property
o What if there is no property?
Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
5 days from receipt of notice. The custodian/manager has 5 days to report if
there is money.
o What does the court do next?
It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
No.
Specific acts
o If the court requires the obligor to do something, but he refuses, what
happens?
The court can require another person to perform it.
o If the other person does not comply?
The court may consider that it has been DEEMED complied with.
Give an example.
The court orders that there must be execution of deed of sale in favor
of Y, done by X. X refuses. The court orders Z to perform it. Z
refuses. The court will deem it complied with. This deed of sale will
be forwarded to the Register of Deeds or whoever/whatever office
o Can an order for demolition be given along with the writ of execution?
No. It is punitive in nature, so there must be a hearing.
o When can there be contempt?
ONLY applies for special judgment, and there is refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land
o
o
Appeals
[*NOTE for Bar review: check your Appellate Practice notes. Theyre better, for these sections]
There is denial in the MTC, and then denial in the RTC, and then it goes up to the
CA through Petition for Review.
o What about summary proceedings in the MTC?
When you lose in the MTC, you cannot file an MR. BUT you can appeal to
the RTC, then petition for review to the CA.
o What about small claims in the MTC?
You cannot MR or appeal a small claims decision. It is final and executory.
But if there is GADALEJ, you can go up to through a petition for certiorari.
When does Rule 43 apply?
o When the body with original jurisdiction is a quasi-judicial agency
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?
Yes, you can ask for one during the reglementary period.
o Can you ask for a second extension?
General rule is that no further extensions are allowed, except for the most
compelling reasons.
What are the requirements of a Rule 42?
o 1. It must be verified MEMORIZE
o 2. Attach a copy of the decision or a duplicate original
o 3. Affidavit of material dates (date of receipt of decision, date of filing of MR, date of
denial of MR)
o 4. Parties, issues, grounds relied upon, errors, explanation if service is other than
personal
o What are some of the causes that will dismiss your case?
1. If the jurat does not comply with the requirements of the notarial law
2. Failure to attach registry receipt
What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?
Because it came from a QJA. So the court will not be able to verify if the
issued resolutions, etc. are genuine
Is the enumeration in Rule 43 of QJAs exclusive?
o No.
o Can the decision of the Office of the President be reviewed by the CA?
Yes.
o Can the decision of the HLURB be reviewed by the CA?
No. By express provision, it must go through the President before the CA.
o NLRC by the CA?
Yes, but under Rule 65, not 43
o DARAB by the CA?
Yes.
o CTA by the CA?
No. It must be CTA en banc, then SC.
Rules 44-56 CA
How is jurisdiction acquired over persons for original cases filed in CA?
o Service of order/resolution or voluntary submission to the courts jurisdiction
o What does service of order or resolution mean?
Akin to Rule 13 service
o What if there was an effort to serve and it was not received? Is the court
deemed to have acquired jurisdiction?
No. There must be proper service of the resolution or order. Not like
summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings or arguments for
certiorari, annulment of judgment, mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking annulment of judgment of
an RTC decision.
Can you seek an annulment of judgment of an MTC decision?
Yes. You file annulment in the RTC.
Can you seek an annulment of judgment of a CA decision?
No. Fall back to the usual rule that you can only go up to the SC
through Rule 45.
o Can the justices hear the case?
Yes. Alternatively, it can ask the RTC to receive evidence.
Preliminary conference is the equivalent of pre-trial in the CA. Whether it is an original or
appealed case, the CA can set it for preliminary conference.
o What is the effect if the appellant is absent here?
The appeal will be dismissed. This is provided in Rule 50.
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this.
Ex. paid docket fees outside of reglementary period, even if you filed
the appeal within the period; failed to file within the reglementary
period
Ex. failure to file an appellants brief
o Can the parties stipulate on the facts?
Yes, if it is an original action, or there is a grant of new trial on the ground for
newly discovered evidence
(Note: newly discovered evidence is the only ground for the CA; FAME is not
included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
But if the CA feels that there is a need for the parties to ventilate their
arguments through oral discussion, then it can do it in its discretion.
o 2. Do you hear motions in the CA?
While for trial courts, motions will be heard, except those that will not
prejudice the rights of the other party.
BUT in the Court of Appeals, motions in the CA need not be heard (same
with the SC)
Comply with minimum requirements of Rule 44 and 50.
o What if you dont have an assignment of errors?
Your appeal will be dismissed.
o What if you dont comply with court circulars?
Dismissed.
Rule 51 provision on judgment. (For trial courts, it is Rule 36.)
<spaced out>
Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds except that the period to resolve in the CA (90 days) is longer
than the TC (30 days)
Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
TC reglementary period within receipt of adverse decision
CA from the time appeal is perfected and as long as the CA has jurisdiction
Remember Sec. 1 and 3. Memorize the cases that will be originally filed in the SC.
What are the cases that can be originally filed in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary actiosn against
members of the Bar/bench, against ambassadors, consuls, other public ministers,
etc.
But if you file a case against a member of the Bench, it will be referred to the
Court Administration. If against a member of the Bar, it will be referred to the
IBP.
Rule 57 attachment
Manguila: citing Davao Light and Power. Question is when should jurisdiction over
the defendant vest?
o Distinguish between issuance and implementation of the writ of attachment to
determine when jurisdiction is needed over the defendant.
o Remember you could file an attachment will the initiatory pleading and apply for it ex
parte. You can also apply for it upon motion.
o To answer the question: there are three stages for attachment
1. Court issues order granting application
2. Writ of attachment issues pursuant to the order
3. Implementation of the writ
FOR THE FIRST TWO STAGES, jurisdiction over the defendant is not yet
required because it is an ex parte application. However, when you are
implementing the writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?
You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with the order (for
implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the enforcement of the writ.
Either personal or substituted service.
Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if the claim arises from
an obligation (law, contract, quasi-contract, delict, quasi-delict) AND defendant is
about to depart with intent to defraud
What if claim is recovery for sum of money only?
No. You could only apply for attachment if the defendant is about to
depart with intent to defraud.
o 2. Embezzlement/abuse of trust by one with a fiduciary relationship
For all intents and purposes, this is estafa
Rule 58 - Injunction
N.B. Rule 58 has been amended on Dec 2007. It was amended alongside Rules 41 and 65.
What was affected by the amendment?
o Rule 48, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for injunction?
o Yes. There could be a principal action for injunction. There is a distinction made in
this case between principal action and preliminary injunction:
o Principal action seeks a judgment for a final injunction which is separate and
distinct from
o Preliminary injunction object is just to preserve status quo
Greenfield, Dela Cruz v. DECS: What are the requisites for a PI?
o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material and substantial
o 3. There is an urgent and permanent necessity for the writ to prevent serious
damage
Types of PI?
o 1. Preliminary injunction to prohibit or stop (status quo ante)
o 2. Preliminary mandatory injunction an injunction which requires you to do
something or perform something that you do not ordinarily want to perform, in order
to maintain the status quo
Estares: A writ of PI based only on initial and incomplete evidence is this allowed?
What kind of evidence is required?
o You dont need to present your entire case. Only a sampling of evidence is needed,
to give the court an idea to justify why you need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o No. Its an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o If great and irreparable injury, court can issue a TRO ex parte (without notice and
hearing) for 20 days.
When stations where there is an executive judge, or the presiding judge of a single-sala
court, there can be an issuance of a 72-hour TRO ex parte if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury
Can an injunction have an effect if enforced outside the judicial district? (ex.
enforced in Makati and Mandaluyong, and the judge is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has been issued
o The posting of a bond in connection with PI does not operate to relieve the party
obtaining the injunction from paying damages the bond only gives additional
protection in favor of the defendant
o So Rule 57, Sec 20 also applies here. Read above, on the rule re: damages.
A court issued a writ of PI. What is the duty of the court in relation to the main case?
o The main case has to be decided within 6 months or else the judge can be
disciplined by the court. This is a new provision.
Aquino: Dissolution of the injunction, even if it was obtained in good faith, it amounts to a
determination that it was wrongfully obtained. A right of action against the bond accrues.
Garcia: Posting of a bond is a condition sine qua non to issue a writ of PI.
Borromeo: Where the parties stipulated in their credit agreement, PN, contract, etc., that
the mortgagee has the right to foreclose in case of default, this defeats any future claim for
the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount. Mere allegation of
payment without showing actual payment is not basis for issuance of PI.
o 2. Mere claim/allegation that the interest is unconscionable or excessive does not
justify issuance of the PI unless the legal interest is paid.
What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of TRO/injunction do not
apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order can be issued without
a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must apply to status quo
orders if issued for judicial or extrajudicial foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
What are the two kinds of TRO?
o 72 hour TRO can only be issued by executive judge of a multi-sala court, or
presiding judge of single sala court
Without notice and hearing
Can these 3 days become 20 days?
Yes, after raffle and it is assigned to a regular court judge, who can
now conduct a summary hearing to determine w/n it must extend the
TRO from 3 to 20 days.
o Normal 20 day TRO issued by a regular court judge after raffle
Rule 59 Receivership
The only provisional remedy that can be applied for post-judgment and even if it is already
final and executory.
Grounds:
o 1. Property is in danger of being lost
o 2. Property is in danger of being wasted/dissipated
Or Stipulation in a mortgage contract and the security in the mortgage is not
enough to cover the value of the application
o 3. Preserve property during pendency of appeal, dispose of it according to judgment,
aid execution if execution unsatisfied, carry judgment into effect
o 4. Other reasons the court finds convenient
Requires a bond
How do you dissolve the bond?
o 1. Show no cause
o 2. Post a counterbond
Rule 60 Replevin
Danao: Can you subject to replevin a motor vehicle in custody of another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here, ex. Bureau of
Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
In attachment and replevin, there are rules for third party claims. What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third party claimant can
vindicate his right in the same or a separate action. In Rule 39, a third party claimant
can only vindicate his right in a separate action, because judgment is final and
executory.
o What is the rule on intervention (Rule 19)?
You can intervene anytime before judgment. But this only applies to trial
courts.
What about appellate courts?
You can still intervene, but subject to the appellate courts sound
discretion.
This is the only provisional remedy that does not require a bond. The four others require a
bond. The person applying for support obviously needs money.
o N.B. For all these other provisional remedies, just follow Rule 57 Rule 23. The
general rule is you can only recover damages from a bond while the action is
pending.
o So what is the rule if you are wrongfully compelled to give support?
You dont recover damages. You ask for reimbursement.
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of execution even when there
is no final judgment:
1. Support pendente lite
2. Indigent (which the court finds that you are not an indigent and requires
you to give filing fees)
What if a person believed that he is the father and he gave support? Then, it turns
out he is not the father.
o If the action is still pending, you can apply for reimbursement in the same action.
o If there is a judgment already, you can apply for it in a separate court proceeding.
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
Rule 62 Interpleader
Reformation of instrument
When can you reform?
There must be mutual mistake.
Can there be execution in a declaratory relief case?
o Yes, nothing prevents the filing of a counterclaim in a declaratory relief, and there
can be execution pursuant to this.
1. This is actually a petition for certiorari. If you file under Rule 64, it will be named a Petition
for Certiorari
2. The period to file a petition for certiorari under Rule 64 is 30 days, non-extendable.
o But the period can be interrupted, if an MR is allowed. In which case, you get the
remaining period.
3. This has a limited application; it only covers decisions by the COMELEC and COA.
NOTE: For 43 and 64, all the attachments are certified true copies. The reason is you
involve Quasi Judicial Agencies.
First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule 65: you do not talk
about Rule 65. You have to fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required GADALEJ. No plain, available, speedy ordinary
remedy.
o It is the same as certiorari.
Certiorari whose decision can you question?
o Judicial or QJA
Prohibition whose decision can you question?
o Judicial, QJA, or ministerial
What is the difference between prohibition and mandamus?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X received the
advance of the contract price, and X did not build the house, can you compel his
performance by mandamus?
o No; it is not ministerial. It is a contractual obligation specific performance.
Can an OMB judgment be reviewed?
o Generally, under Rule 43.
However, if the decision of the OMB in a criminal case is tainted with GADALEJ,
Rule 65 Certiorari can be filed with SC.
In prohibition, you cannot prohibit an act that has already been performed. It is already
moot.
Quo Warranto
A person who is declared by the court to be entitled to an office should require delivery of
books, papers, documents in the possession of the usurper if he refuses, he can be liable
for contempt.
If there is a dispute between and among the Board of Directors of a private
corporation, one group claiming that they have been usurped, is the proper remedy
quo warranto?
o No. This is an intra-corporate dispute to be filed in the regular courts (RTC) having
original jurisdiction.
Rule 67 Expropriation
Mactan Cebu Airport: When you say public purpose, it must be the purpose stated, and
not another purpose, even if public too
o The acquisition of government of property is limited to the public purpose stated,
because it is not a simple purchase in fee simple, unlike normal purchase of
property.
Rule 68 Foreclosure
Rule 69 Partition
In the last five years, there were questions in the Bar exam, but they involved EJ partition,
not J partition.
Compare an EJP from a JP?
o JP covered by Rule 69
You must implead all the co-owners because everyone is an indispensable
party
o EJP covered by Rule 74
What are the two stages in JP?
o 1. Determination of existence of a co-ownership
The co-ownership is created by agreement of the parties or by operation of
law
o 2. Partition of the property
Who institutes action for JP?
o Any co-owner
What is the role of the commissioner?
o There is a need to refer the matter to a commissioner. But remember that under this
rule, it is NOT mandatory. If the parties agreed, the matter will not be referred.
Step-by-step example of JP:
o There is a co-ownership created by death (inheritance)
o An action was instituted under Rule 69.
o The provision of law does not provide for an answer. But in the absence of rules,
there is an answer. So file one.
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment based on the stipulation
of the parties.
o If there is lack of agreement, refer to commissioners.
Examples of EJP:
o 1. Affidavit of self-adjudication
o 2. EJP upon a notarized public instrument
o 3. Even if there is petition for JP, but the parties agreed, it will be treated as an EJP
Needs publication
Do you need a bond?
o For JP, no.
o For EJP, yes, for personal property.
Requisites of EJP?
o 1. There is no will
o 2. There is no debt
o 3. If there are minors, there is appointment of guardians
Until what period can you contest the distribution of the estate under EJP?
o Within a period of 2 years.
Can you contest a JP?
o Paramount rights cannot be prejudiced, even if there is judgment already
Can JP cover both real and personal properties?
o Yes.
prescription: 1 year
beyond 1 yr remedy: publiciana
2. AND vacate
There must always be a demand to vacate
o What if the demand letter is defective?
The complaint can be dismissed. A defective demand letter is jurisdictional.
Can you touch on the question of ownership in FE and UD cases?
o But only to preliminarily determine who is entitled to possession.
o But the determination is not binding /prejudicial to future questions of ownership.
Salient portions of procedure:
o In ejectment cases, unlike ordinary cases, the court can dismiss the case outright.
prohibited
o Absence of an answer will not lead to default, but a judgment of the court. No need
pleadings in
to declare the defendant in default.
summ proc
o
There is a Preliminary conference, just like summary procedure. But after
applies here
preliminary conference even without position papers, the court can render judgment
if it is already satisfied.
o Third chance to make a decision: 30 days from filing of last judicial affidavit or
decision of MTC judge is executory. but not self executory. needs
position paper
motion for execution
How do you stay execution of the MTC decision?
o 1. File notice of appeal and pay filing fees
to the appellate court. can't pay:
o 2. Post a supersedeas bond paid
execution still stayed but surrender
Covers arrearages
possession
o 3. Pay the monthly rentals before the trial court
Can you file an MR in an ejectment case?
o No, it is a prohibited pleading.
o Dont file an MR, file a notice of appeal.
Are you entitled to a provisional remedy?
o Yes. You can apply for a TRO or preliminary mandatory injunction so you can
recover possession in the pendency of the case.
o But you have to file it within 5 days from filing of the complaint.
In the rule on property, it says 10 days.
What prevails: 5 days.
mtc: executory but can be stayed
rtc: executory but cant be stayed ( remedy: tro)
Can you appeal?
ca: pet for review.
o Yes. The appeal will be elevated to the RTC. sc: appealed thereto but only on q of law
o The decision of the RTC, once final, is executory and cannot be stayed.
o Even an appeal will not stay the execution.
o Benedicto v. CA: If you can get a preliminary injunction or TRO from the next level
court, it can be stayed.
What is the mode of appeal from RTC decision in exercise of its appellate
jurisdiction?
o Petition for review
o Can you file an MR before you file a petition for review?
Yes, because RTC is an appellate court and not subject to rules of summary
procedure.
Rule 71 Contempt
imprisonment
until you
comply is
allowed
DAR court has exclusive jurisdiction over all matters pertaining to the DAR Law
Except to DARs exclusive and original jurisdiction are matters pertaining to
just compensation which goes to the courts
Also and more importantly the RTC as special Agrarian Reform Courts also
has exclusive and original jurisdiction for prosecution of all criminal cases
under the DAR Law
What is the jurisdiction of the Sandiganbayan?
o 1. The accused is at least a Salary Grade 27 employee.
o 2. And the office must be a constitutive element of the offense.
o Can you be charged of offenses following under the RPC?
Yes.
anti graft
ill gotten
Can
there
be
instances when you are not SG27 and still be under the SB jurisdiction?
rpc
o Yes, if there is an express provision.
ordinary offenses?
o Serrano: UP Student Reagent is a public officer under the SBs jurisdiction. She
yes if falls under SB
if committed in
claimed that she did not get any compensation and she was not a public officer.
relation to the office
While the first part of 4a only covers officials SG27 and above, the second part
covers officers whose positions may not be SG27 and higher, but who are by
express provision of law are placed under the SB.
Sec 4a(1g) gives the SB jurisdiction over officers in State-owned universities
[Student Reagent is part of the board]
What if the public officer is not SG27 but the office was a constitutive element of the
offense? Which court has jurisdiction?
o Regular courts, subject to appeal before the SB.
o Because the SB has both original and appellate jurisdiction.
What if there is one public officer falling under the SB jurisdiction and the other is
not?
kahit ilang private indv
o They can both be charged as co-accused under the SB if at least one is SG27. or non-sg27
o Esquivel v. OMB: There was a session in Sanggunian involving both a Municipal
Mayor and a Barangay Captain. The MM was charged in the SB (since he was
SG27) and the Brgy. Captain was charged as co-accused, even if he was not SG27.
HELD: Valid, because at least one of the co-accused was SG27.
What if a co-accused is a private party?
o Yes, the SB can have jurisdiction over him.
Which court has jurisdiction to file hold departure orders?
rtc where case is pending
o Monejar:
An MTC court CANNOT. Only an RTC can issue a hold departure order.
t
o Circular 39-97 Hold Departure Orders by RTC only apply to offenses cognizable by
second level courts.
remedy: motion to travel
o But there are instances when the DOJ Secretary can issue a hold departure
conditional arraignmentarraigend based on
order, right?
original complaint but
Yes, but this is not under the law but under the powers of the Executive.
complaint may be
changed. trial in absentia
There must be probable cause for the DOJ to issue one.
may proceed.
o What is the difference between a HDO and a watch list?
HDO prevents you from leaving.
Watch list youre only being watched, but you can leave.
omb vs doj:
Liwag case
doj: general
juris under the
rpc
omb: juris
under the sb
omb can
prosecute
through the
office of the
special prosec
MM/CC
Requiring PI
Office
of
4y2m1d
Prosecutor
Not requiring PI Office
of
Prosecutor
Falling
under Office
of
Rule
on Prosecutor
summary proc.
(ex. BP22)
OMM/OCC
the Office
of
the
Prosecutor
the Provincial
Prosecutor/MTC
the Provincial
Prosecutor/MTC
Use John Doe or Jane Doe. For civil cases, you use unknown
owner or unknown heir or whatever.
o 2. Designation of the offense by statute
Ex. murder, homicide, estafa
If there is no designated name of the offense, just say Violation of Sec. 5 and
11 of the Dangerous Drugs Law
Recent SC decision: Even in the absence of a particular section, but the
allegation in the information shows that you know the nature of the offense,
then there is substantial compliance.
o .3. Qualifying and aggravating circumstances
Both should be alleged
people vs montecalvo
If it is an aggravating circumstance, it must be alleged. If it is not
alleged but proven in trial, can it be taken against the accused?
No.
Even more reason for qualifying circumstances.
How about mitigating circumstances?
No, because it is part of the defense of the accused.
o 4. Facts or circumstances constituting the offense.
Cause of accusation is the equivalent of a cause of action in a civil case
offense to be charge: title not controlling.
important is the facts stated therein. since
The language of the information should be in a language known to the
title is a conlcusion of law by the
accused.
prosecutor
What is the reason for this?
Rule 116 says that the accused must be properly informed of the
nature and cause of accusation against him to make a proper
arraignment and plea.
o 5. Date of commission
Do you need to provide the specific date of commission of the offense?
No need. Just an approximation is needed.
Exception: if the date is a material element of the offense.
Election offense
Infanticide
Is date a material element of the offense of rape?
No.
o 6. Place
Need to show that it is committed within the territorial jurisdiction of the court
But for offenses like trespass to dwelling, violation of domicile, election cases,
arson, etc. where the place of commission is material, you have to allege it
with particularity
o 7. Name of the offended party
Place it there, if it is known
If it is a crime against property, you describe the property so that you will
know who the offended party is
What if it is later on discovered?
It can be inserted in the information
ampatuan vs delima:
doj has control on
state witnes
Preliminary investigation
What is PI?
o Where the prosecutor determines whether there is probable cause to file a case
against a respondent
Distinguish from inquest?
Inquest is conducted by an inquest prosecutor, when one is caught under the three
exceptional circumstances provided in law
Who can conduct preliminary investigation?
o City prosecutors, and their assistants, Provincial prosecutors and their assistants
o OMB, and if they authorize the Special Prosecutor he can too
What is the procedure for PI?
o 1. After receiving affidavit-complaint, the prosecutor will determine within 10 ten days
whether there is probable cause
Raffle
Assigned to assistant prosecutor
o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days
In practice there can be a reply or rejoinder, but this is not provided by the
if subpoena improperly served or unserved: pi can still continue.
rules
jurisdiction over defendant not necessary, mere statutory right:
o 4. Optional clarificatory hearing
waivable
o 5. Resolution
Who prepares the resolution?
The Assistant prosecutor
Is it the city prosecutor or the assistant prosecutor?
Assistant prosecutor prepares it, and then the city prosecutor
approves it
City prosecutor has discretion to dismiss the complaint, file the
information himself, or ask another assistant/State prosecutor to file it
o Regardless of recommendation
Can a resolution be issued by an assistant prosecutor even without
approval of the City prosecutor?
No.
What if the City prosecutor does not agree with the
recommendation of the assistant prosecutor?
remedy of accused: pet for
o He has discretion to reverse it.
review to the doj
If the assistant prosecutor believes that there is probable cause, he prepares
circular 70 pet for review: PI
a resolution AND an information. Information is filed in court and resolution
or was reinvestigated
served to the parties. If he does not find that there is probable cause, he only
thus, arraignment suspended
prepares a resolution. But regardless, no resolution can be issued without
for 60 days
the approval of the City or Provincial prosecutor.
Can you file a complaint with the OMB?
o Yes, and he will then investigate. He can also motu propio investigate.
o Can the NBI conduct preliminary investigation?
No (?)
Is service of a subpoena and receipt thereof necessary for the Office of the
Prosecutor to obtain jurisdiction over the respondent?
o No.
o There is still no case filed against him, just an investigation.
Even if he does not get to file a counter affidavit, there can still be a resolution issued
against him.
X is arrested, accused of possessing illegal drugs, without a warrant. What is the
procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have them proceed with
inquest
If X applies for preliminary investigation, what happens?
You sign a waiver of Art. 125 of RPC
Will X be released?
If he applies for bail.
Where does X apply for PI?
Before the inquest prosecutor.
Where do you apply for bail?
With the Executive Judge. (This is a trade secret)
What is the procedure if someone is arrested for vagrancy, without warrant?
o Note that vagrancy does not need preliminary investigation, so the information can
be directly filed with the MTC.
o Can you apply for bail?
Yes, because you were already arrested.
You were sued for slight physical injuries in MM, and it was not in flagrante delicto,
so it was on the basis of affidavit complaint. What happens?
o There is no need for preliminary investigation.
o So the prosecutor will determine probable cause, then will file the information in
court.
o Is there a need for the respondent to file a counter affidavit here, and is there
need for preliminary investigation?
No.
When are inquest proceedings applicable?
o It must be due to a warrantless arrest:
inquest officer
determines:
A. In flagrante delicto
1. detained- remedy:
B. A crime has been committed and the police officer has personal
bailxwhen info is filed
2. released- not dismissal
knowledge that the person committed the crime
of case but is released
C. Escaped from confinement or escape
subject to further pi
o Also, it must be for an offense that requires PI (at least 4y, 2m, 1d) Just file
affidavit-complaint to the office of the prosecutor. (Because only 3A is required)
o How do we distinguish (A) from (B)?
First kind the arresting officer was there when the crime was committed
Second kind the arresting officer has personal knowledge
If a person is arrested with a warrant can he be placed on inquest?
o No.
What if he was arrested for an offense for which he was previously charged, and then
he escaped from detention and he was arrested without a warrant?
o Inquest must be conducted.
Arrest
Bail
Registration of the lien must be done within 10 days from approval of the
bond
Does the accused need to be the owner of the property?
No.
o 4. Recognition
Can you be released on your own recognizance?
Yes.
What are the stipulations in a bond?
o 1. Bond is effective upon approval and unless cancelled
o 2. Accused must appear in court if required
o 3. Failure to appear in trial is deemed a waiver
-forfeiture vs cancellation of bail
Trial can proceed in absentia
-reduced bail
o 4. Bondman must surrender accused to the court for final judgment - q arrest or pi made before plea
Arraignment
o
o
Motion to quash
Why do you file motion to quash? exp: dj, lack juris, prescription,
o To quash the information because it is defective or the court has no jurisdiction.
Differentiate from provisional dismissal:
o In P.D., there is no questioning of the information. In fact, it is valid and charges a
proper offense and the court has jurisdiction over the SM and the person.
no grounds unlike mtq
filed before plea. exp- at any stage of proceeding
effect- info stays but case is prov dismissed. in mtq- info is quashed
2. Prescription
3. Litis pendentia
4. Res judicata
o Motion to quash:
In general, grounds not raised are waived.
Except for:
1. Does not constitute an offense
2. Prescription
3. Double jeopardy
4. Lack of jurisdiction over the offense
When will double jeopardy not set in?
o 1. When there is a supervening event.
o 2. Facts constituting graver charge only were discovered after a plea was entered
o 3. Plea of guilty to lesser offense was made without consent of prosecutor
Except?
For purpose of plea bargaining, the private offended party was notified
but did not appear during arraignment
And the offense is necessarily included in the offense charged
Can there be compromise?
o Basic rule: you cannot compromise criminal action
o But you can compromise the civil aspect of the case
But when you compromise the civil liability, it does not lead to the dismissal of
the criminal case
What do you need?
Affidavit of desistance by the offended party. This is as to the civil
aspect.
The prosecution has to move for the dismissal of the case
o If the prosecution moves for dismissal, does double jeopardy set in?
Check the requisites. If there is plea, double jeopardy sets in. If there is
none, double jeopardy will not.
Can the admissions of the accused be used against him in the proceedings?
o Yes, if it is in writing and signed by the accused and his counsel.
Absences and appearances:
o The rule of absences in pre-trial (in civil case) does not apply in criminal cases.
o The pre-trial will be reset.
If the witness is absent, the court can rely on compulsory processes
If the accused in absent
1. There is forfeiture of bail
2. There will be a warrant of his arrest
[Distinguish cancellation from forfeiture of bail]:
Cancellation
o Voluntary surrender or death.
Pre-trial
Is it mandatory?
admission at pre trail is a judicial
o There is pre-trial before Clerk of Court
admission
Can there be stipulations?
compromise in criminal cases:
gr: no
o Yes
exps: libel theft phy inj estafa
Can there be marking of documents?
bp22 in the jdr. what you
compromise is civil aspect
o Yes
if compromised, offended
What is the order of trial?
exec affid of desistance.
notice to public prosec.
o Prosecution
o Defense
court inquires into
volunteriness.
o [fill in]
def moves for dismissal.
o Can it be reversed?
Yes, when there is self defense and other exculpatory defenses
Discharge of the accused as state witness requisites?
o 1. There is no direct evidence
So for this, you have no one who can point to the perpetrator.
What is the opposite of direct evidence?
Circumstantial evidence
o 2. There is absolute necessity for the evidence
o 3. Could be corroborated in its material points
o 4. Not the most guilty
o 5. Not convicted of a crime involving moral turpitude
must have been
When can an application for discharge be made? sw
arraigned and
entered plea
o Before the prosecution rests its case
o What does the applicant need to do or submit?
Submitting sworn affidavit
o What happens to the statement?
Becomes part of the evidence of prosecution
o What happens to the accused?
Becomes acquitted
o If the application is denied, what happens to the statement?
Its inadmissible
Compare with requisites for discharge under Witness Protection Program?
o
o
Judgments
judgement can be
subject to:
a. mr
Appeals
b. mnt
c. appeal
Ordinary appeal
Criminal: X was charged with acts of lasciviousness (within MTC jurisdiction). MTC
renders judgment. Who reviews it?
o RTC, through notice of appeal filed with the MTC. (RULE 122)
o Compare/contrast with Civil:
MTC RTC, through notice of appeal. (RULE 40)
Or MTC RTC, through record of appeal (not available in criminal cases)
What is the procedure in the RTC for criminal cases, when acting as appellate court?
o Parties submit their memoranda (Rule 122, Sec 9)
o Compare/contrast with Civil:
Same. Parties submit memoranda.
Criminal: Court of original jurisdiction is the RTC, and he was convicted for homicide.
Appeal?
o Go to the Court of Appeals, through Notice of appeal filed with the RTC.
o Compare/contrast with RTC in civil action:
Go to the CA, through Notice of appeal filed with RTC. OR file a record of
appeal.
So still the same.
o What is the procedure followed by the CA in criminal cases?
File appellants brief (Rule 124), within 30 days
File appellees brief, within 30 days
o When the accused jumps bail, escapes, or fails to file an appellants brief.
Counsel-de-officio:
o The general rule is the accused is given the choice to retain a counsel de parte (of
his choice)
o If he cannot afford one, the court appoints a counsel de officio
o One can be appointed during arraignment, or for the rest of the trial.
o Can a counsel de officio be named in the Court of Appeals?
Yes, when the accused signed his own appeal. Also, when he was not
assisted by counsel.
o Can the SC appoint a counsel de officio for the accused?
Yes, the SC can, but this is not provided for in the rules.
The search warrant said an undetermined amount of shabu. The original case was
for marijuana. Will this be enough for the police officers to conduct a search?
o Yes, even if the amount was not specified. What is required is that the object of the
search be described with particularity. Quantity is not required.
The police officer was armed with a search warrant. But before implement or
enforcing it, on plain view, he saw illegal firearms. Can there be a valid search?
o Yes. Plain view exception applies, even if there is a search warrant.
Where could you apply for a search warrant?
o You apply to the court, following the rule on territoriality.
Can it be possible to apply in a court outside of the place where the crime was
committed?
o Yes, for compelling reasons.
o What can be a compelling reason?
Its a question of fact, but an example is when he is a public officer of that
locality and there is doubt that a search warrant can be properly applied for.
Is application for a search warrant a criminal action?
o No. It is a special judicial process.
Can it become one?
o No. You need an information because the application for a search warrant will not
evolve into an information.
Where do you file for quashal of search warrant?
o In the court wherein it was applied for if there is no case yet
o If there is a case, in the court where the case is pending
Who determined probable cause for search warrants?
o The judge. Not the prosecutor.
o Wherelse is probable cause required, apart from application for search
warrant?
Preliminary investigation
Rule 113, warrantless arrest (personal knowledge that crime has been
committed)
Warrant of arrest
Search and seizure
o What is required for the judge to do?
Personal examination and determination by the judge of the
complainant/applicant and witnesses.
It does not involve mere submission of affidavits.
Give an example of a search based on a warrant, where the place is described with
particularity.
o Ex. if its an apartment, you give the number of the apartment.
o What if its a stretch of apartments, and what was indicated is apartment B, but
what was searched was apartment C. Was there a valid search?
No.
o But was the search warrant valid?
Yes. The search warrant can be valid, but the implemented was invalid.
o There were illegal items seized from apartment C. How can you prevent these
motionto quash: search
goods from being used in a criminal trial?
not yet made
motion to supress:
Motion to suppress.
already searched
o Differentiate motion to quash from motion to suppress.
filed: no crim case- court
Motion to quash is before implementation of the search warrant.
which issued. there us Motion to suppress is after implement and before presentation in court.
where pending
What if there is no way to describe with particularity the place, esp. when it is a
province?
o Its possible to say kilometer 30. But this cant apply for cities or municipalities.
To whom must a search warrant be served?
o The lawful occupant.
o In the absence of the lawful occupant?
To a relative.
o In the absence of the occupant or relative?
To two witnesses of sufficient age and discretion residing in that locality.
When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the premises where they were
seized
What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit inventory makes him
liable for contempt.
Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For normal crimes, it can be
exception: evidentiary
done in court or police station or wherever.)
value and authenticy of
o The person must make a physical science report to track the chain of custody. evidence is maintained
is still admissible.
What is the rule as to search and arrest?
o The general rule is that the arrest must come before the search and seizure.
o Or, the search and seizure must be contemporaneous to arrest.
If you apply for a search warrant in QC, can it be applied outside of the territorial
jurisdiction?
o If its a violation of the DDL, IP code, illegal possession of firearms, illegal gambling,
heinous crimes, AML, violation of tariff and customs code.
o You have to apply before an executive judge before the City of Manila or Quezon
City. This will be effective anywhere in the Philippines.
Re: Seizure of fake goods (ex. fake Adidas) What is the role of the private party?
o The private party can submit documents and pleadings to support the application of
the NBI.
The place of manufacture of the fake goods is in Cavite, and place of sale is in San
Juan. Where do you apply?
o Either place.
Provisional remedies
Evidence where the witness was there, but he did not perceive anything. (I was
there in the scene, but I did not notice anything happen.)
What is primary evidence?
o Best available evidence to establish the fact in issue
o What is an example of primary evidence?
Best Evidence Rule
The secondary evidence here is photocopy, recital of the contents, or
testimony as to its contents.
What is weightier, physical evidence or testimonial evidence?
o Physical evidence.
Note: exceptions to the hearsay rule are not absolute. They can be contested or impugned.
o How do you destroy the exception?
Destroy the requisites.
Ex. was it audible? was he aware that he was going to die?
Is there primary evidence in object evidence?
o Yes. If you want to present a car, present the actual itself.
o What is the secondary evidence?
A car of the same model, same type, etc. which will aid the court in
understanding the object involved.
Is there primary evidence in testimonial evidence?
o Yes. A person who had personal knowledge.
o What is the secondary evidence?
Hearsay. N.B. but note that the codal does not expressly tag hearsay as
secondary evidence although it is. When asked in the bar what secondary
evidence is, give the answer for documentary evidence to be sure.
What is prima facie evidence?
o That which suffices to prove a fact, until contradicted by other evidence
o But can it establish a conviction?
[not answered]
o What is the difference between prima facie evidence and disputable
presumption?
Prima facie evidence arises from a fact that would sufficiently create a
reasonable belief that an act alleged has arisen
Disputable presumption arises from Rule 131
N.B. they are the same in such that these can be controverted
What is conclusive presumption?
o It cannot be controverted
o But can you attack a fact that leads to a conclusive presumption?
Yes.
o Give an example of a conclusive presumption.
Tenant cannot deny the title of his landlord
Distinguish between preponderance of evidence and proof BRD:
o Preponderance Court determines superior weight of evidence; for civil cases
o
Proof BRD Moral certainty, conviction will arise from an unprejudiced mind; for
criminal cases
Are the rules of evidence uniformly applied in all our courts?
o Yes.
o Trade disputes in DTI?
No.
o NLRC exercising QJ functions?
No. You dont need best evidence available here (can use photocopies,
thats fine)
o What does except if otherwise provided by law?
If otherwise provided, then the uniform application will not extend to that.
Ex. Agrarian cases
Rule 130, sec. 26/27: compromise rules are not the same in civil and criminal
cases
Character evidence: there is also difference in civil and criminal cases
Two witness rule in treason
What is relevancy?
o Has relation to fact in issue as to induce belief in its existence or non-existence
What about collateral facts?
o General rule, not relevant
o EXCEPT, when the collateral matters establish probability or improbability of the fact
in issue
o Give an example.
In rape, the accused can point to the character of the supposed victim to
prove that there is probability that the intercourse was consensual.
N.B. You can only use character evidence if there is a character trait involved
in the offense charged.
o
Judicial notice
When is it mandatory?
o 1. States existence, territorial extent, political history, forms of government,
symbols of nationality
o 2. Law of nations, admiralty, maritime courts of the world, and their seals
o 3. Political constitution and history of the Philippines, official acts of legislative,
executive, judicial departments of Philippines
o 4. Laws of nature, measure of time, geographical divisions
Why are these mandatory?
o Because they have already been established. They cannot be disputed anymore.
o No need to introduce evidence anymore.
Can the court take judicial notice of rentals?
o No. The court cannot take judicial notice of factual matters.
Is the court bound to take judicial notice of municipal orders?
o The court is obliged to take judicial notice of law, but not ordinances.
Rule 130
N.B. The rules on admissibility are applicable to object, documentary, and testimonial
evidence alike.
What is object evidence?
o Those addressed to the senses of the court
An object is presented so that the court can perceive it.
What if it is immobilized ex. real property or personal properties attached?
o Ocular inspection
Is a photograph object evidence?
o [not answered]
Do you need the photographer to identify the picture?
o Yes.
o Or a person who can attest to its exactness and accuracy.
o What must be proved?
That it is an accurate representation of what happened.
As to production and circumstances under which they were produced.
Prove who operated the camera, the ability of the camera to capture the
scene, etc.
o Prove all these first before going into the contents of the photograph.
What about videos?
o Similarly, lay down the basis, before presenting the contents
What is a paraffin test?
o See definition
o Are the results conclusive?
No. Its not 100% reliable.
Is a lie detector test 100% reliable?
o No. You can cheat it.
What is demonstrative evidence?
o Evidence that adds to or explains.
o Maps, charts, graphs, etc.
o Is it the same as demonstration?
Documentary evidence
Give an example.
o Contract of sale of property. X thought it was Batangas, Y
thought it was Batangas. But it was actually in Cavite.
Give an example of imperfection in the written agreement?
The provision says that the offended party must pay damages, when it
fact, the offender must pay.
Another: X and Y entered into a contract of sale of property, over a
Batangas property. But the technical specifications provided were
those of the Cavite property.
2. The failure of the written agreement to express the true intent and agreement of
the parties
Give an example.
X approached Y, asking for money for tuition fee of his son. X said he
intended to mortgage his property. Y asked him to sign a document,
but that contract provided for an absolute sale.
3. Validity of the written agreement is at issue
Can a contract void on its face be made valid by presentation of
extraneous evidence?
No. This provision does not contemplate contracts that are by nature
void, to make them legal.
4. Existence of other terms agreed to by the parties/their successors-in-interest after
execution of the written agreement
Give an example.
There is an original contract and it was amended from a 20-year
agreement to a 10-year agreement
Testimonial evidence
X said that he had problems with his corporation, giving particular details,
names of incorporators, reasons, details, and what are the requirements. Is
this covered?
Yes, even if you are not eventually retained.
o Does it recognize agency?
Yes. The privilege extends to secretary, clerk, or stenographer.
o Can it be waived?
Yes.
o Note: if the relationship of the lawyer with the person is a business relationship, you
cannot invoke the privilege.
C. Doctor-patient
o Can you invoke this privilege in a criminal case?
No, even if it would blacken your reputation. The privilege only covers civil
cases.
o Who is covered?
Person must be a doctor of medicine, surgeon, or obstetrician
What if he is an optometrist?
No, because he/she is not a doctor of medicine
What if he is an ophthalmologist?
Covered
What about neurologist?
Covered
What about psychologist?
No, he must pursue further studies to be a doctor
What about psychiatrist?
Covered
What is the key?
You must be a doctor of medicine.
Who is an obstetrician?
For pregnancy
Alternative medicine practitioners and iridologists?
No.
o What are the requisites?
1. Civil case
2. Person is authorized to practice medicine, surgery, or obstetrics
3. Acquired information in his professional capacity for him to be able to give
treatment or advice
4. Disclosure of the information would tend to blacken the patients reputation
The privilege is only significant if you talk about a pending case
C. Priest-Penitent
o A protestant religion does not require confession through a priest. If a
protestant approaches her pastor and asks for a confession and discloses
information in the course thereof, can the pastor invoke the privilege?
No. It should be enjoined by the religious institution to which he/she belongs.
Theft
Estafa
BP 22
Criminal negligence
o What is covered by the compromise?
Only the civil liability
But in practice, once you compromise the civil liability, usually the prosecution
is no longer interested
What is admission by silence?
o X was making statements in the radio against Y, a public official. If Y does not
react to the radio caller, is this an admission by silence?
No. See requisite #1 below.
o What are the requisites?
1. Statement made in your presence or within your observation
2. Fact would have naturally called for a reaction if not true
3. To deny is proper under the circumstances
Ex. there were armed 5 men who were speaking ill about X his
silence may simply mean that he is being prudent
Mr. X and his group robbed BPI in Makati. X and his group were also suspected of
robbing BPI in Intramuros. He was caught, and a case was filed against him. If there
is a separate criminal case involving the robbery in BPI Intramuros, can the facts
surrounding the Makati BPI robbery be appreciated?
o No, not to establish a different robbery. But you can use it to establish any of the
exceptions outlined below.
o Ex. The manner in which the robbery was conducted is the same, showing a system.
Ms. Y married Mr. A. She obtained insurance. A died. She married B. She obtained
insurance. B died. She married C. She obtained insurance. C almost died due to
poisoning. Are the previous deaths admissible?
o Yes, but only to establish intent.
What is the general rule as to prior conduct?
o Generally not admissible.
o What are the exceptions?
To establish intent, knowledge, identity, plan, system, scheme, habit, custom,
or usage, and the like.
What is the rule on unaccepted offer?
o An offer in writing to pay a sum of money or deliver a written instrument/personal
property, if rejected without valid cause, is equivalent to actual production and tender
Declarations
Dying declaration
Declaration against
interest
Declaration about
pedigree
Res gestae
Reputation
As to pedigree
Common
reputation
Entries
Course of business
Official record
Commercial lists
Learned treatises
Dying declaration
o Requisites
1. The dying person is under the consciousness of his impending death
2. Declaration relates to the facts/circumstances pertaining to the death
3. He should eventually die
4. The recipient of the information should be competent to testify
o Does this extend to civil cases?
Yes.
As long as it pertains to the circumstances regarding his death.
o There is a dying person on the floor and he calls X. He told X to tell his wife to
handle his bank account, tell his children to manage the properties, etc. Is this
the proper subject of a dying declaration?
No. It does not cover circumstances re: his death.
Common reputation
o What are covered?
1. Public knowledge of more than 30 years
This has a partner provision in documentary evidence (ancient
documents)
Give an example of public knowledge of more than 30 years.
o There is a marker in the barangay disclosing information on
the founding of the barangay.
o Sometimes it can border on history, which will then become
subject to judicial notice
2. Reputation about marriage
How do you develop a reputation re: marriage?
o When people perceive them to be married. Ex. living in one
house, with children, etc. Even if this is not true.
3. Reputation as to moral character
Entries made in the regular course of business
o Requisites?
1. The person is dead/unavailable
2. Made the entry in a position to know the facts, in professional capacity
3. Entries made at or near the time of transaction
4. Done in the regular course of business
o Who is ideally the person testifying?
The one who actually made the entries. This exception only applies if he/she
is dead or unable to testify.
o Who will then testify on his/her behalf if this occurs?
Person who is also in a position to know the facts
Entries in official records
o Requisites?
1. Made by public officer or person enjoined by law to make entry
2. Made in performance of duty
3. Had sufficient knowledge of the facts, personally or through official
information
o Does the official have to be dead/unavailable?
No.
o How do you use this provision?
Secure a certified true copy, then you identify it and present it in court
When do you present the original only?
If there is issue as to its genuineness
o Reason behind this provision?
As to not waste the time of the public official
Commercial lists
o Requisites?
1. Contained in published compilation
2. Generally relied upon by these persons
Opinion rule
o No.
o This is a summary procedure under the Family Code
6. Survivorship for those who died due to calamity, wreck, battle, or conflagration
Follow what rule?
Strength and age of the sexes
For what purpose can this be used?
ANY purpose except succession
Allowed for:
Insurance
Survivorship agreements
Authentication of documents
Offer of evidence
Settlement of estates
When?
1. If a will is discovered
2. If the administrator absconds
3. The administrator fails to render accounting
4. Unsuitable to discharge the trust
o Can he resign as administrator?
Yes
Can an executor/administrator have access over partnership books?
o Yes. It only extends to a partnership but not a corporation, because there is
succession in corporation.
o Failure to comply with order of a court what is the consequence?
Partner can be held in contempt
What is the requirement in terms of notice for money claims against the estate?
o Court issues order to all persons with money claims against the estate to file it with
the clerk of court
o What is the period?
Not less than 6 months to not more than 12 months from date of first
publication
o General rule: All claims must be filed within the time limit, or else it is forever barred.
Exception?
Except as counterclaim to any action an administrator or executor
may bring
What are the claims filed against the executor or administrator by name?
o 1. Recovery of real/personal property
o 2. Claim for damages caused by the deceased
o 3. All other actions/claims that survive
What if the executor/administrator refuse to act to recover property transferred in
fraud of creditors?
o The creditors can do it, if they:
1. Pay expenses of the suit
2. Give security
The estate sometimes has debts. In this case, how must they be paid?
o First, from the personal estate.
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims
o What is the time to pay the debts?
Not exceeding one year in the first instance
o Can it be extended?
Yes, for not more than six months
Can the court authorize sale/mortgage/encumbrance of real property?
o Yes.
o When?
1. Personal estate is not sufficient to pay the debts.
2. Sale of personal property may injure business or estate
and the testator did not make provision for payment of the debt (for both)
When is there distribution?
o No distribution shall be allowed until payment of debt, funeral expenses, giving of
allowance to widow, admin expenses, estate tax, etc.
Who can institute actions for escheats?
o The Sol-gen on behalf of the Republic.
o What does he do?
File petition in court where the deceased last resided
o If you an heir can you still recover an escheated property?
Five years from the date of such judgment
o Can a done (but not an heir) recover the property?
Yes, he is an interested party, because he claims a right to the escheated
party. He may appear or oppose petition for escheat.
o What is the effect of a judgment in escheat?
Conclusive against all persons with actual or constructive notice
But not against those who are not privies or parties
Guardianship
Trustees
Who is a trustee?
o Can be made to carry in effect the provisions of a will or a written instrument
o Appointed/confirmed in the probate court
Adoption
There was a child who was left outside of the house of a childless couple and having
noticed that no one is claiming the child, the couple adopted the child. But they
secured a birth certificate and filled in the childs details (simulation of birth), without
applying for legal adoption. The child grew up and when she applied for a visa to the
US, she was denied because she was found to not be the natural child of the mother
(who is sterile). What are implications and what actions must be taken to correct the
situation?
o 1. Petition for correction/cancellation of entries, because the birth certificate is false
Where do you file it?
The place where the entry was made or recorded
Who are the parties; who are impleaded?
Only the civil registrar (under the ROC)
Under jurisprudence, include the child as well and the declared parent
of the child, and those who hereditary rights are affected (ex.
Grandparents)
o 2. Get certification that the child was neglected or abandoned
Do you need a judicial declaration that the child was neglected or
abandoned?
NO. You just need a certificate from DSWD from an administrative
proceeding. (Take note of this; new law and never asked in the Bar.)
o 3. Legal adoption
What if the adopter is a foreigner?
He must have been residing in the Philippines for at least 3 years
What are the other qualifications?
o 16 year age difference
o Note the others from Civil Law notes
What kind of petition must be filed?
o Inter-Country Adoption
Where do you institute the action for adoption?
Family Court where the adoptee resides
If the adoptee has no residence (abandoned), where the adopter
resides
Habeas corpus
Change of name
Family home
Appeal