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2016

University of the Philippines


College of Law
Pre-Week Reviewer

PRE-WEEK

REMEDIAL
LAW

UP Law Bar Operations Commission 2016

UP LAW
BAR OPS 2016

UP LAW BOC

REMEDIAL LAW PRE-WEEK [CIVIL PROCEDURE]

CIVIL PROCEDURE
Q1: What is the difference between a civil action and a special proceeding?
A: Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse
party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this
difference. A civil action, in which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong necessarily has definite adverse parties, who are either the plaintiff or
defendant. On the other hand, a special proceeding, by which a party seeks to establish a status, right,
or a particular fact, has one definite party, who petitions or applies for a declaration of a status, right, or
particular fact, but no definite adverse party. [Montaer v. Sharia District Court, G.R. No. 174975 (2009)]
Q2: State the rule when it comes to splitting a cause of action.
A: Institution of more than one suit for the same cause of action constitutes splitting the cause of action,
which is a ground for the dismissal of the others. Thus, in Rule 2:
Section 3. One suit for a single cause of action.A party may not institute more than one suit for a
single cause of action.
Section 4. Splitting a single cause of action; effect of.If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available
as a ground for the dismissal of the others. [Lanuza Jr. v. BF Corporation, G.R. No. 174938 (2014), Velasco
in Division]
Q3: State the rule as to misjoinder of causes of action.
A: The rule is that a partys failure to observe the following conditions under Section 5, Rule 2 of the
Rules results in a misjoinder of causes of action:
SEC. 5. Joinder of causes of action.A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an opposing party, subject to the following
conditions:
1.
The party joining the causes of action shall comply with the rules on joinder of parties;
2.
The joinder shall not include special civil actions governed by special rules;
3.
Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies therein; and
4.
Where the claims in all the causes of action are principally for recovery of money the aggregate
amount claimed shall be the test of jurisdiction.
Q4: Differentiate between actions that survive the death of a party and those that do not.
A: A deceased party may be substituted by his heirs, but it must be emphasized that substitution may
only be allowed in actions that survive the death of a party thereto. The determination of whether an
action survives the death of a party depends on the nature of the action and the damage sued for. In the
causes of action which survive the wrong complained of affects primarily and principally property and
property rights, the injuries to the person being merely incidental, while in the causes of action which do
not survive the injury complained of is to the person, the property and rights of property affected being
incidental. [Torres v. Rodellas, G.R. No. 177836 (2009), Velasco in Division]
Q5: What is the duty of counsel when his client dies?
A: According to Section 16, Rule 3 of the Revised Rules of Court, a counsel, within 30 days from his
clients death, is duty-bound to inform the court of such fact, and to submit the name/s and address/es of
the deceased clients legal representative/s. Thereafter, the court shall order, forthwith, the appearance
of and substitution by the deceased partys legal representative/s within another period of 30 days from
notice. [Torres v. Rodellas, G.R. No. 177836 (2009), Velasco in Division]

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Q6: What is the consequence if counsel belatedly notifies the court about his/her clients death?
A: Section 16, Rule 3 of the Revised Rules of Court only provided that, in case of failure of the counsel to
comply with his duty as stated in the first paragraph thereof, it would be a ground for disciplinary action
against said counsel, not that he/she would automatically be without personality to appear as counsel in
the proceedings for the benefit of his/her client or the latters heirs. [Torres v. Rodellas, G.R. No. 177836
(2009), Velasco in Division]
Q7: What are the requisites of a class suit?
A: The requisites of a class suit are:
(a) the subject matter of controversy is one of common or general interest to many persons;
(b) the parties affected are so numerous that it is impracticable to bring them all to court; and
(c) the parties bringing the class suit are sufficiently numerous or representative of the class and can
fully protect the interests of all concerned.
Q8: What is adequacy of representation in relation to a class suit?
A: An element of a class suit or representative suit is the adequacy of representation. In determining the
question of fair and adequate representation of members of a class, the court must consider :
(1) whether the interest of the named party is coextensive with the interest of the other members of
the class;
(2) the proportion of those made a party, as it so bears, to the total membership of the class; and
(3) any other factor bearing on the ability of the named party to speak for the rest of the class. [MVRS
Publications v. Islamic Dawah Council, G.R. No. 135306 (2003)] Where the interests of the
plaintiffs and the other members of the class they seek to represent are diametrically opposed,
the class suit will not prosper.
Q9: What is a necessary party?
A: (1) A party that is not indispensable
(2) But needs to be joined for a complete determination of the case.
Q10: What is an indispensable party?
A: An indispensable party is one without whom there can be no final determination.
Q11: What is the effect of a failure to implead a party?
A: If it is a necessary party, failure to implead does not result in the waiver of the right to implead.
However, if there is an order by the court to implead and there is failure to comply, there is a waiver of
claim.
If it is an indispensable party, the court should order the indispensable party be impleaded. If
there is failure to comply with such order, the case should be dismissed. If there is a failure to implead an
indispensable party, and the court did not order the impleading, the judgment rendered will be null and
void.
Q12: What is a real action and what is the rule as to venue?
A: A real action is one affecting title to or recovery of possession of real property, or any interest therein.
The venue is where the property is located.
Q13: What is a personal action?
A: A personal action is all other actions not real. The venue is the residence of the (principal) plaintiff, the
residence of the (principal) defendant, or wherever a non-resident may be found.
Q14: What is the venue of actions against non-residents where (a) the action affects the personal status
of the plaintiff or (b) any property of the defendant in the Philippines?
A: Either (a) the residence of the plaintiff or (b) where the non-residents property may be found.

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Q15: What are the rules on venue when the parties stipulate on the same?
A: The aforequoted rules, however, finds no application where the parties, before the filing of the action,
have validly agreed in writing on an exclusive venue. But the mere stipulation on the venue of an action is
not enough to preclude parties from bringing a case in other venues. It must be shown that such
stipulation is exclusive. In the absence of qualifying or restrictive words, such as exclusively and waiving
for this purpose any other venue, shall only preceding the designation of venue, to the exclusion of the
other courts, or words of similar import, the stipulation should be deemed as merely an agreement on an
additional forum, not as limiting venue to the specified place. [Auction in Malinta v. Luyaben, G.R. No.
173979 (2007)]
Q16: When is a counterclaim compulsory?
A: A counterclaim is compulsory if:
1.
it arises out of or is necessarily connected with the transaction or occurrence which is the subject
matter of the opposing partys claim;
2.
it does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction; and
3.
the court has jurisdiction to entertain the claim both as to its amount and nature, except that in
an original action before the RTC, the counterclaim may be considered compulsory regardless of
the amount. [Metropolitan Bank and Trust v. CPR Promotions and Marketing, G.R. No. 200567
(2015), Velasco ponencia]
Q17: What tests have been used by the Court in determining the nature of a counterclaim?
A: In determining whether a counterclaim is compulsory or permissive, the following tests have been
used:
1.
Are the issues of fact or law raised by the claim and the counterclaim largely the same?
2.
Would res judicata bar a subsequent suit on defendants claims, absent the compulsory
counterclaim rule?
3.
Will substantially the same evidence support or refute plaintiffs claim as well as the defendants
counterclaim?
4.
Is there any logical relation between the claim and the counterclaim, such that the conduct of
separate trials of the respective claims of the parties would entail a substantial duplication of
effort and time by the parties and the court? This test is the compelling test of compulsoriness.
[Metropolitan Bank and Trust v. CPR Promotions and Marketing, G.R. No. 200567 (2015), Velasco
ponencia]
Q18: When should a compulsory counterclaim be brought?
A: A defending partys compulsory counterclaim should be interposed at the time he files his Answer.
Failure to do so shall effectively bar such claim. [Metropolitan Bank and Trust v. CPR Promotions and
Marketing, G.R. No. 200567 (2015), Velasco ponencia]
Q19: What is a cross claim?
A: It is a claim made against a person/party on the same side.
Q20: What is the period to answer a cross claim?
A: 10 days.
Q21: Do you need leave of court to file a counter- or cross-claim?
A: No.
Q22: What is forum shopping?
A: Forum shopping is the institution of two or more actions or proceedings involving the same parties for
the same cause of action, either simultaneously or successively, on the supposition that one or the other
court would make a favorable disposition. [Wacnang v. COMELEC, G.R. No. 178024 (2008), Velasco En
Banc]
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Q23: What is a certificate for non-forum shopping?


A: It is a sworn statement in which the plaintiff or principal party certifies in a complaint or initiatory
pleading:
(1) That he has not commenced any action or filed any claim involving the same issues in any court or
tribunal, and to the best of his knowledge, no such other action is pending;
(2) That if there is such other pending action or claim, a complete statement of the present status thereof;
and
(3) That if he should learn that the same or a similar action has been filed or is pending, he shall report
such fact within 5 days to the court receiving his initiatory pleading. [Sec. 5, Rule 7]
Q24: When has the requirement for a certificate of non-forum shopping been relaxed?
A: The sworn certification need not be in a separate segment [Bondagjy v. Artadi, G.R. No. 170406 (2008),
Velasco in Division]. Substantial compliance has also been recognized in, among others, submission in
the motion for reconsideration of the authority to sign the verification and certification [Asean Pacific
Planners v. City of Urdaneta, G.R. No. 162525 (2008), Velasco in Division]
Q25: What is the rule on authorizations in relation to the requirement for a CNFS?
A: The lack of certification against non-forum shopping is generally not curable by mere amendment of
the complaint, but shall be a cause for the dismissal of the case without prejudice. The same rule applies
to certifications against non-forum shopping signed by a person on behalf of a corporation which are
unaccompanied by proof that said signatory is authorized to file the complaint on behalf of the
corporation. Proof of such authority must be attached. While there are instances where the filing of a
certificate against non-forum shopping by someone on behalf of a corporation without the accompanying
proof of authority at the time of its filing was allowed, there was also a special circumstance or
compelling reason. Moreover, there was a subsequent compliance by the submission of the proof of
authority attesting to the fact that the person who signed the certification was duly authorized. [Republic
v. Coalbrine, G.R. No. 161838 (2010)] However, such authorization is not necessary when it is self-evident
that the signatory is in a position to verify the truthfulness and correctness of the allegations in the
petition. [University of the East v. Pepanio, G.R. No. 193897 (2013), Velasco in Division]
Q26: What are the consequences of failure to comply with the requirement for a certificate of nonforum shopping?
A:
Defect
Effect
Not curable by mere amendment
Cause for dismissal of the case, without prejudice
Failure to comply with the requirements
unless otherwise provided, upon motion and after
hearing
False certification
Constitutes indirect contempt, without prejudice to
administrative and criminal actions
Noncompliance with any undertaking
Ground for summary dismissal, with prejudice
Willful and deliberate forum shopping
Direct contempt
Cause for administrative sanctions
The requirement specific to petitions filed with the appellate court simply provides as a penalty that the
failure of the petitioner to comply with the listed requirements, among them the need for a certification
against forum shopping, shall be sufficient ground for the dismissal of the petition. [Heirs of Juan
Valdez v. Court of Appeals, G.R. No. 163208 (2008), Velasco in Division]
Q27: What is an actionable document?
A: An actionable document is the written instrument upon which the action or defense is based. [Sec. 7,
Rule 8]

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Q28: How do you contest an actionable document?


A: (1) By specific denial under oath; and
(2) By setting forth what is claimed to be the facts [Sec. 8, Rule 8]
Q29: When does denial not need to be under oath?
A: (1) The adverse party does not appear to be a party to the instrument, or
(2) Compliance with an order for inspection of the document has been refused.
Q30: What is the effect of failure to deny an actionable document under oath?
A: (1) The genuineness and due execution is deemed admitted
(2) The document need not be formally offered in evidence
Q31: State the rules on specific denials.
A: The material allegations in a complaint must be specifically denied by the defendant in his answer
[Section 10, Rule 8]. Material allegations in the complaint which are not specifically denied, other than
the amount of unliquidated damages, are deemed admitted [Section 11, Rule 8]. A denial made without
setting forth the substance of the matters relied upon in support of the denial, even when to do so is
practicable, does not amount to a specific denial. [Teraa v. Hon. Antonio de Sagun, G.R. No. 152131
(2009), Velasco in Division]
Q32: What are the three modes of specific denial?
A:
1.
by specifying each material allegation of the fact in the complaint, the truth of which the
defendant does not admit, and whenever practicable, setting forth the substance of the matters
which he will rely upon to support his denial;
2.
by specifying so much of an averment in the complaint as is true and material and denying only
the remainder;
3.
by stating that the defendant is without knowledge or information sufficient to form a belief as to
the truth of a material averment in the complaint, which has the effect of a denial. [Section 10,
Rule 8; PBC v. Go, G.R. No. 175514 (2011)]
Q33: Defenses not pleaded either in a motion to dismiss or in the answer are deemed waived, except:
A:
1.
lack of jurisdiction over the subject matter;
2.
litis pendentia;
3.
res judicata; and
4.
prescription of action.
The second sentence of Rule 9, Section 1 does not only supply exceptions to the rule that defenses not
pleaded either in a motion to dismiss or in the answer are deemed waived, it also allows courts to dismiss
cases motu proprio on any of the enumerated grounds provided that the ground for dismissal is apparent
from the pleadings or the evidence on record. [P.L. Uy Realty v. ALS Management, G.R. No. 166462 (2012),
Velasco in Division]
Q34: What is the remedy against an Order of Default?
A: The remedy against an Order of Default is a Motion to Lift Order of Default, not a Motion for
Reconsideration. A Motion to Lift Order of Default is different from an ordinary motion in that it should be
verified, and must show fraud, accident, mistake or excusable neglect, and meritorious defenses. The
allegations of (1) fraud, accident, mistake or excusable neglect, and (2) of meritorious defenses must
concur. [Banco de Oro-EPCI v. Tanpisek, G.R. No. 181235 (2009), Velasco in Division]

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Q35: What are the differences between an amendment and a supplemental pleading?
A:
Amendments
Supplemental pleadings
Reason for amendment is available at time of the Grounds for supplemental pleading arose after the
first pleading
filing of the first pleading
Either as a matter of right or by leave of court
Always by leave of court
Merely supplements, and exists side-by-side with
Supersedes the original
the original
A new copy of the entire pleading must be filed
Does not require a new copy of the entire pleading
Q36: State the rule regarding an amendment to conform or to authorize presentation of evidence.
A: If an issue was tried with the implied consent of the parties, it should be treated in all respects as if it
had been raised in the pleadings. And since there was implied consent, even if no motion had been filed
and no amendment had been ordered, the trial court can validly render a judgment on the issue.
Amendment is also unnecessary when only clerical error or non-substantial matters are involved. [Sy v.
Court of Appeals, G.R. No. 124518 (2007), Velasco in Division]
Q37: What is the legal effect of the granting of the motions to file a responsive pleading and bill of
particulars when defendant had been declared in default?
A: The effect is that the default order against the defendant is deemed lifted. [Republic v. Sandiganbayan,
G.R. No. 148154 (2007), Velasco in Division]
Q38: What is the 1991 Virata-Mapa Doctrine?
A: The 1991 Virata-Mapa Doctrine42 prescribes a motion for a bill of particulars, not a motion to dismiss,
as the remedy for perceived ambiguity or vagueness of a complaint for the recovery of ill-gotten wealth.
[Republic v. Sandiganbayan, G.R. No. 148154 (2007), Velasco in Division]
Q39: What is personal service?
The service of the summons should firstly be effected on the defendant himself whenever practicable.
Personal service consists either in:
1. handing a copy of the summons to the defendant in person, or,
2. if the defendant refuses to receive and sign for it, in tendering it to him. [Macasaet v. Co, Jr., G.R.
No. 156759 (2013)]
Q40: W hen can there be resort to substituted service?
A: To warrant the substituted service of the summons and copy of the complaint, the serving officer must
first attempt to effect the same upon the defendant in person. Only after the attempt at personal service
has become futile or impossible within a reasonable time may the officer resort to substituted service. The
rule on personal service is to be rigidly enforced.
Being in derogation of the usual method of service, substituted service may be used only as
prescribed and in the circumstances authorized by statute. The impossibility of prompt personal service
should be shown by stating the efforts made to find the defendant himself and the fact that such efforts
failed, which statement should be found in the proof of service or sheriffs return. Nonetheless, the
requisite showing of the impossibility of prompt personal service as basis for resorting to substituted
service may be waived by the defendant either expressly or impliedly. [Macasaet v. Co, Jr., G.R. No. 156759
(2013)]
Q41: How do you effect substituted service?
A: If, for justifiable reasons, the defendant cannot be served in person within a reasonable time, the
service of the summons may then be effected through substituted service either:
(a) by leaving a copy of the summons at his residence with some person of suitable age and
discretion then residing therein, or
(b) by leaving the copy at his office or regular place of business with some competent person in
charge thereof. [Macasaet v. Co, Jr., G.R. No. 156759 (2013)]
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Q42: Differentiate between actions in personam, actions in rem and actions quasi in rem.
A: Actions in personam, are those actions brought against a person on the basis of his personal liability;
actions in rem are actions against the thing itself instead of against the person; and actions are quasi in
rem, where an individual is named as defendant and the purpose of the proceeding is to subject his or her
interest in a property to the obligation or loan burdening the property. [Perkin Elmer Singapore PTE LTD v.
Dakila Trading, G.R. No. 172242 (2007)]
Q43: Can you resort to extraterritorial service of summons when an action is in personam?
A: Extraterritorial service of summons applies only where the action is in rem or quasi in rem, but not if an
action is in personam. When the case instituted is an action in rem or quasi in rem, Philippine courts
already have jurisdiction to hear and decide the case, provided that the court acquires jurisdiction over
the res. Thus, extraterritorial service of summons can be made upon the defendant. On the other hand,
when the defendant or respondent does not reside and is not found in the Philippines, and the action
involved is in personam, Philippine courts cannot try any case against him because of the impossibility of
acquiring jurisdiction over his person unless he voluntarily appears in court. [Perkin Elmer Singapore PTE
LTD v. Dakila Trading, G.R. No. 172242 (2007)]
Q44: When can you effect extraterritorial service of summons on a defendant who is a non-resident not
found in the Philippines?
A: There are only four instances wherein a defendant who is a non-resident and is not found in the
country may be served with summons by extraterritorial service:
(a) when the action affects the personal status of the plaintiff;
(b) when the action relates to, or the subject of which is property, within the Philippines, in which the
defendant claims a lien or an interest, actual or contingent;
(c) when the relief demanded in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and
(d) when the defendant non-residents property has been attached within the Philippines.
Mere allegations of personal property within the Philippines do not necessarily make the action as one
that relates to or the subject of which is, property within the Philippines as to warrant the extraterritorial
service of summons. For the action to be considered one that relates to, or the subject of which, is the
property within the Philippines, the main subject matter of the action must be the property itself of the
petitioner in the Philippines, or that the non-resident defendants personal property located within the
Philippines must have been actually attached. [Perkin Elmer Singapore PTE LTD v. Dakila Trading, G.R. No.
172242 (2007)]
Q45: How may extraterritorial service of summons be effected?
A: In these instances, service of summons may be effected by
(a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or
(c) any other manner the court may deem sufficient.
[Perkin Elmer Singapore PTE LTD v. Dakila Trading, G.R. No. 172242 (2007)]
Q46: What are the requisites to effecting valid substituted service?
A: The following are the requirements to effect a valid substituted service:
(1) impossibility of prompt personal service,
(2) specific details in the return,
(3) (a) a person of suitable age and discretion or (b) a competent person in charge. [Nation Petroleum Gas
v. Rizal Commercial Banking Corporation, G.R. No. 183370 (2015), Velasco in Division]

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Q47: What does the second sentence of Rule 14, Section 20 which reads, [t]he inclusion in a
motion to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance mean?
A: The second sentence of Rule 14, Section 20 clearly refers to affirmative defenses, not affirmative reliefs.
By seeking affirmative reliefs from the trial court, the individual petitioners are deemed to have
voluntarily submitted to the jurisdiction of said court. A party cannot invoke the jurisdiction of a court to
secure affirmative relief against his opponent and after obtaining or failing to obtain such relief, repudiate
or question that same jurisdiction. [Nation Petroleum Gas v. Rizal Commercial Banking Corporation, G.R.
No. 183370 (2015), Velasco in Division]
Q48: How is service of summons done to a domestic corporation, partnership or other juridical entity?
A: It is governed by Rule 14, Section of the Rules of Court. It provides that service must be made on the:
president,
managing partner,
general manager,
corporate secretary,
treasurer, or
in-house counsel.
The enumeration of persons to whom summons may be served is restricted, limited and exclusive.
Substantial compliance cannot be invoked [Spouses Mason v. Court of Appeals (2003)]. Service of
summons upon persons other than those officers specifically mentioned in Section 11, Rule 14 is void,
defective and not binding to said corporation. However, if one of the persons in the enumeration
empowers another to act as his/her agent to receive summons in representation, while it may be true that
there was no direct, physical handing of the summons to the corporate secretary, the latter could at least
be charged with having constructively received the same, which amounts to a valid service of summons.
[Nation Petroleum Gas v. Rizal Commercial Banking Corporation, G.R. No. 183370 (2015), Velasco in
Division]
Q49: What is the notice requirement for motions?
A: There must be a notice of hearing directed to the parties; otherwise, the motion becomes a mere scrap
of paper. It must comply with both the three day notice rule and the ten day rule.
The three day notice rule requires that the motion be:
(1) filed in court and
(2) served to the other party
at least three days before the date of the hearing.
The ten day rule requires that the hearing itself must be scheduled no later than 10 days from the
motions filing.
Q50: What is the Omnibus Motion Rule?
A: A motion attacking a pleading, order, judgment, or proceeding shall include all objections then
available; otherwise, it is waived, except:
Lack of subject matter jurisdiction
Res judicata
Litis pendentia
Prescription

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Q51: What are the grounds for a motion to dismiss?


A:
Lack of jurisdiction over the defendants person
Lack of jurisdiction over the subject matter of the claim
Improper venue
Plaintiffs lack of legal capacity to sue
Litis pendentia
Res judicata
Prescription
Failure to state a cause of action
Extinguished claim
Unenforceable claim under the Statute of Frauds
Non-compliance with a condition precedent for filing claim
Q52: What is the effect of pleading a ground for a motion to dismiss as an affirmative defense in the
answer?
A: If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative
defenses and a preliminary hearing may be had at courts discretion. [Section 6, Rule 16] Since the rule
provides that the preliminary hearing may be had thereon as if a motion to dismiss had been filed, such
hearing shall therefore be conducted in the manner provided in Section 2, Rule 16 of the Rules of Court. It
is inconsequential that a defendant had already filed an answer to the complaint prior to its filing of a
motion to dismiss. The option of whether to set the case for preliminary hearing after the filing of an
answer which raises affirmative defenses, or to file a motion to dismiss raising any of the grounds set
forth in Section 1, Rule 16 of the Rules are procedural options which are not mutually exclusive of each
other. [Associated Bank v. Montano, G.R. No. 166383 (2009)].
Q53: What constitutes failure to prosecute for purposes of dismissal of an action?
A: There is failure to prosecute when the plaintiff, being present, is not ready or is unwilling to proceed
with the scheduled trial or when postponements in the past are due to the plaintiffs own making,
intended to be dilatory or cause substantial prejudice on the part of the defendant. The failure of a
plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will give
rise to the presumption that he is no longer interested to obtain from the court the relief prayed for in his
complaint; hence, the court is authorized to order the dismissal of the complaint on its own motion or on
motion of the defendants. The presumption is not, by any means, conclusive because the plaintiff, on a
motion for reconsideration of the order of dismissal, may allege and establish a justifiable cause for such
failure. [Malayan Insurance v. IPIL International, G.R. No. 141860 (2006), Velasco in Division]
Q54: What is the two-dismissal rule?
A: When a complaint is dismissed a second time, the plaintiff is now barred from seeking relief on the
same claim. The purpose of the two-dismissal rule is to avoid vexatious litigation. [Ching v. Cheng,
G.R. No. 175507 (2014)]
Q55: What is the effect of dismissals based on Rule 17?
A: As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is the
second time that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate as an
adjudication upon the merits, i.e, with prejudice to the re-filing of the same claim, the following requisites
must be present:
There was a previous case that was dismissed by a competent court;
Both cases were based on or include the same claim;
Both notices for dismissal were filed by the plaintiff; and
When the motion to dismiss filed by the plaintiff was consented to by the defendant on
the ground that the latter paid and satisfied all the claims of the former. [Ching v. Cheng, G.R. No.
175507 (2014)]
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Q56: What happens to the counterclaim filed in an action that has been dismissed under Rule 17?
A: A dismissal of an action is different from a mere dismissal of the complaint. For this reason, since only
the complaint and not the action is dismissed, the defendant in spite of said dismissal may still prosecute
his counterclaim in the same action. The case of Pinga v. Heirs of German Santiago [G.R. No. 170354
(2006)] is quite instructive which this Court finds worth reiterating. In Pinga, the Court clearly stated that
the dismissal of the complaint does not necessarily result to the dismissal of the counterclaim. The Court
held that:
At present, even Section 2, concerning dismissals on motion of the plaintiff, now recognizes the
right of the defendant to prosecute the counterclaim either in the same or separate action
notwithstanding the dismissal of the complaint, and without regard as to the permissive or compulsory
nature of the counterclaim. [Lim Teck Chuan v. Uy, G.R. No. 155701 (2015), Velasco in Division]
Q57: Is the sending of a notice of pre-trial mandatory? What is the effect of the failure to send such
notice?
A: Section 3, Rule 18 of the 1997 Rules on Civil Procedure unequivocally requires that the notice of pretrial shall be served on counsel, or on the party who has no counsel. It is elementary in statutory
construction that the word shall denotes the mandatory character of the rule. Thus, it is without question
that the language of the rule undoubtedly requires the trial court to send a notice of pre-trial to the
parties.
More importantly, the notice of pre-trial seeks to notify the parties of the date, time and place of
the pre-trial and to require them to file their respective pre-trial briefs within the time prescribed by the
rules. Its absence, therefore, renders the pre-trial and all subsequent proceedings null and void. [PNB v.
Sps. Perez, G.R. No. 187640 (2011), Velasco in Division]
Q58: What is the effect of failure to file a pre-trial brief?
A: Section 6, Rule 18 of the Rules of Court mandates that parties shall file with the court and serve on the
adverse party their pre-trial briefs at least three days before the scheduled pre-trial. The Rules also
provide that failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
Therefore, plaintiffs failure to file the pre-trial brief shall be cause for dismissal of the action.
If the trial court has discretion to dismiss the case because of plaintiffs failure to appear at pretrial, then the trial court also has discretion to dismiss the case because of plaintiffs failure to file the pretrial brief. Moreover, whether an order of dismissal should be maintained under the circumstances of a
particular case or whether it should be set aside depends on the sound discretion of the trial court.
[Republic v. Oleta, G.R. No. 156606 (2007), Velasco in Division]
Q59: Define modes of discovery.
A: Modes of discovery are meant to enable a party to learn all the material and relevant facts, not only
known to him and his witnesses but also those known to the adverse party and the latters own witnesses.
In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material
and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions
may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and
completely laid before the Court, without omission or suppression. [Dasmarias Garments v. Reyes, G.R.
No. 108229 (1993)]
Q60: What are the different modes of discovery? Discuss each.
A: (1) Deposition: Depositions are principally made available by law to the parties as a means of
informing themselves of all the relevant acts; they are not therefore generally meant to be a substitute for
the actual testimony in open court of a party or witness. The deponent must as a rule be presented for
oral examination in open court at the trial or hearing. Any deposition offered to prove the facts therein set
out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be
opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no
opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that
that opportunity for cross-examination was afforded during the taking of the deposition.
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However, depositions may be used without the deponent being actually called to the witness stand by the
proponent, under certain conditions and for certain limited purposes: the deponent is
(a) dead,
(b) out of the Philippines, or
(c) otherwise unable to come to court to testify. [Dasmarias Garments v. Reyes, G.R. No. 108229 (1993)]
(2) Interrogatories to parties: A party may elicit from the adverse party or parties any facts or matter that
are not privileged and are material and relevant to the subject of the pending action. Like other modes of
discovery authorized by the Rules, the purpose of written interrogatories is to assist the parties in
clarifying the issues and in ascertaining the facts involved in a case. [Philippine Health Insurance v. Our
Lady of Lourdes Hospital, G.R. No. 193158 (2015), Velasco in Division]
(3) Request for admission of adverse party: A request for admission, as a mode of discovery, contemplates
of interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in the
pleading. Once a party serves a request for admission regarding the truth of any material and relevant
matter of fact, the party to whom such request is served is given a period of fifteen (15) days within which
to file a sworn statement answering the same. Should the latter fail to file and serve such answer, each of
the matters of which admission is requested shall be deemed admitted.
The exception to this rule is when the party to whom such request for admission is served had
already controverted the matters subject of such request in an earlier pleading. Otherwise stated, if the
matters in a request for admission have already been admitted or denied in previous pleadings by the
requested party, the latter cannot be compelled to admit or deny them anew. In turn, the requesting
party cannot reasonably expect a response to the request and thereafter, assume or even demand the
application of the implied admission rule in Section 2, Rule 26. [Metro Manila Shopping Corp. v. Toledo,
G.R. No. 190818 (2013)]
Nonetheless, consistent with the abovementioned Rule, the party being requested should file an
objection to the effect that the request for admission is improper and that there is no longer any need to
deny anew the allegations contained therein considering that these matters have already been previously
denied. [Villuga v. Kelly Hardware, G.R. No. 176570 (2012)]
(4) Production or inspection of documents or things: Its purpose is to enable not only the parties but also
the court to discover all the relevant and material facts in connection with the case pending before it. It
must be shown, therefore, that the documents sought to be produced, inspected and/or
copied/photographed are material or contain evidence relevant to an issue involved in the action.
[Philippine Health Insurance v. Our Lady of Lourdes Hospital, G.R. No. 193158 (2015), Velasco in Division]
It is given liberal treatment, such that Rule 27 of the Revised Rules of Court permits fishing for evidence,
the only limitation being that the documents, papers, etc., sought to be produced are
not privileged,
in the possession of the party ordered to produce them and
material to any matter involved in the action. [Solidbank Corp. v. Gateway Electronics, G.R.
No. 164805 (2008)]
However, fishing for evidence that is allowed under the rules is not without limitations. The requisites in
order that a party may compel the other party to produce or allow the inspection of documents or things
are the following:
The party must file a motion for the production or inspection of documents or things,
showing good cause therefor;
Notice of the motion must be served to all other parties of the case;
The motion must designate the documents, papers, books, accounts, letters,
photographs, objects or tangible things which the party wishes to be produced and inspected;
Such documents, etc., are not privileged;
Such documents, etc., constitute or contain evidence material to any matter involved in
the action, and
Such documents, etc., are in the possession, custody or control of the other party.
[Security Bank v. Court of Appeals, G.R. No. 135874 (2000)]
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(5) Physical examination of persons: This may be ordered by the court, in its discretion, upon motion and
showing of good cause by the requesting party, in cases when the mental and/or physical condition of a
party is in controversy. Aside from showing good cause, the requesting party needs only to notify the
party to be examined (and all other parties) and specify the time, place, manner, conditions, and scope of
the examination, including the name of the physician who will conduct the examination.
The examined party may obtain a copy of the examining physicians report concerning his/her mental or
physical examination. The requesting party shall deliver this report to him/her. After such delivery,
however, the requesting party becomes entitled to any past or future medical report involving the same
mental or physical condition. Upon motion and notice, the court may order the examined party to deliver
those medical reports to the requesting party if the examined party refuses to do so.
Moreover, if the examined party requests a copy of the examining physicians report or if he/she takes the
examining physicians deposition, the request waives the examined partys privileges when the testimony
of any person who examined or will examine his/her mental of physical status is taken in the action or in
any action involving the same controversy. [Chan v. Chan, G.R. No. 179786 (2013), Leonen concurring,
same result cases decided by Division with Velasco]
Q61: What is the difference between a demurrer in a civil case and in a criminal case?
A:
Civil Cases
Criminal Cases
Defendant files a demurrer.
Court may motu proprio dismiss the action for
insufficiency of prosecutions evidence, after it has
Court cannot motu propio dismiss the case for
rested its case. [Sec. 23, Rule 119]
insufficiency of plaintiffs evidence
Defendant need not ask for leave of court
May be filed with or without leave of court.
If court denies the demurrer
(1) filed with leave, accused may present
If court denies the demurrer, defendant will present
evidence.
his evidence
(2) filed without leave, accused can no longer
present evidence.
If plaintiffs evidence insufficient, court will grant If prosecutions evidence insufficient, court will
demurrer by dismissing the complaint
grant demurrer by rendering judgment of acquittal.
The judgment of dismissal is appealable; If
Judgment of acquittal is not appealable; Double
reversed, court will decide based on plaintiffs
jeopardy sets in.
evidence.
Q62: Does the resolution of a motion for reconsideration require a lengthy disquisition of facts and law?
A: A finding that there is no plausible reason to depart from its earlier decision wherein all the issues had
been exhaustively passed upon is sufficient legal reason or basis to deny the motion. There is no need to
restate the rationale for the courts decision that the petitioner wants reconsidered. [Hutama-RSEA v.
KCD Builders, G.R. No. 173181 (2010), Velasco in Division]
Q63: What are the grounds for a petition for relief?
A:
(1) Fraud (extrinsic)
(2) Accident
(3) Mistake
(4) Excusable negligence
Q64: Petitioner filed a petition for relief from judgment on the ground that the public respondent made
serious and prejudicial mistakes in appreciating the evidence presented. Will his petition be granted?
A: No. The mistake contemplated by Rule 38 of the Rules of Court pertains generally to mistake of fact,
not of law, which relates to the case. The word mistake which grants relief from judgment, does not apply
and was never intended to apply to a judicial error which the court might have committed in the trial.
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Such error may be corrected by means of an appeal. [Samonte v. Naguiat, G.R. No. 165544 (2009),
Velasco in Division]
Q65: How may a foreign judgment be enforced?
A: In the Philippines, a judgment or final order of a foreign tribunal cannot be enforced simply by
execution. Such judgment or order merely creates a right of action, and its non-satisfaction is the cause of
action by which a suit can be brought upon for its enforcement. An action for the enforcement of a foreign
judgment or final order in this jurisdiction is governed by Rule 39, Section 48 of the Rules of Court.
The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign
judgment in the Philippines. But the filing of a civil complaint is an appropriate measure for such purpose
brought before the regular courts.
Recognition and enforcement of a foreign judgment or final order requires only proof of fact of the said
judgment or final order. [BPI Securities v. Guevara, G.R. No. 167052 (2015)]
Q66: What is the effect of a foreign judgment?
A: For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an
action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the
parties and their successors in interest by a subsequent title. [BPI Securities v. Guevara, G.R. No. 167052
(2015)]
Q67: Should a court address the body of evidence that a defendant will adduce to show that its
defenses in a foreign action?
A: No. [BPI Securities v. Guevara, G.R. No. 167052 (2015)]
Q68: What are the grounds to impeach a foreign judgment?
A:
(1) want of jurisdiction or notice to the party,
(2) collusion,
(3) fraud, or
(4) clear mistake of law or fact.
The party aggrieved by the foreign judgment is entitled to defend against the enforcement of
such decision in the local forum. The party attacking a foreign judgment has the burden of overcoming
the presumption of its validity.
In an action in personam, as in the case at bar, the foreign judgment or final order enjoys the
disputable presumption of validity. It is the party attacking the foreign judgment or final order that is
tasked with the burden of overcoming its presumptive validity. A foreign judgment or final order may only
be repelled on grounds external to its merits.
Philippine courts exercise limited review of foreign judgments or final orders. However, a
Philippine court will not substitute its own interpretation of any provision of the law or rules of procedure
of another country, nor review and pronounce its own judgment on the sufficiency of evidence presented
before a competent court of another jurisdiction. [BPI Securities v. Guevara, G.R. No. 167052 (2015)]
Q69: Does a trial court did have jurisdiction to grant a motion for execution which was filed almost 20
years after a judgment in a criminal case became final and executory?
A: Yes and no.
With respect to the penalty of imprisonment, the governing law is the Revised Penal Code. There
is no grave abuse of discretion in assuming jurisdiction over a motion for execution and in eventually
granting the same, provided compliance with the periods provided in the RPC.
However, the civil liability arising from the offense committed is different. The Civil Code is the
governing law so Section 6, Rule 39 of the Rules of Civil Procedure is applicable. It must be read in
conjunction with Articles 1144 (3) and 1152 of the Civil Code, which provides that an action upon a
judgment must be brought within ten years from the time the right of action accrues, and that the period
for prescription of actions to demand the fulfillment of obligations declared by a judgment commences
from the time the judgment became final. [Basilonia v. Villaruz, G.R. No. 191370-71 (2015), Velasco in
Division]
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Q70: What are the two (2) modes of enforcing a final and executory judgment or order?
motion, which is only available if the enforcement of the judgment was sought within 5
years from the date of its entry or
independent action, which is mandatory if the 5-year prescriptive period for execution by
motion had already elapsed. It must be filed before it is barred by the statute of limitations (10
years, as per Civil Code).
A writ issued after the expiration of the period is null and void. Failure to object to a writ issued after such
period does not validate it. [Basilonia v. Villaruz, G.R. No. 191370-71 (2015), Velasco in Division]
Q71: What is not included in computing the time limited for suing out an execution?
A: When execution is stayed, either
by agreement of the parties for a definite time,
by injunction,
by the taking of an appeal or writ of error so as to operate as a supersedeas,
by the death of a party, or
otherwise.
Any interruption or delay occasioned by the debtor will extend the time within which the writ may be
issued without scire facias. Essentially, execution was allowed even after the prescribed period elapsed
when the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his
benefit or advantage. [Basilonia v. Villaruz, G.R. No. 191370-71 (2015), Velasco in Division]
Q72: Can an award for moral and exemplary damages and attorneys fees be included in an execution
pending appeal?
A: No. Execution pending appeal of awards of moral and exemplary damages, and attorney's fees is not
allowed. Unlike actual damages for which a defendant may clearly be held liable if there is a breach of a
specific contract and the amounts of which are fixed and certain, liabilities with respect to moral and
exemplary damages as well as the exact amounts remain uncertain and indefinite pending resolution by
the appellate courts. The existence of the factual bases of these types of damages and their causal
relation to the partys act will have to be determined in the light of the assignments of errors on appeal. It
is possible that the party, while liable for actual damages may not be liable for moral and exemplary
damages. Or, as in some cases elevated to the Supreme Court, the awards may be reduced.
Consequential damages and attorney's fees are likewise excluded from execution pending appeal.
[Tiorosio-Espinosa v. Honorable Presiding Judge Hofilea-Europa, G.R. No. 185746 (2016), Velasco in
Division]
Q73: What is the reckoning point of the period to appeal?
A: The commencement of the period to appeal should be reckoned from the respective dates each of the
parties received a copy of the decision. Therefore, each party has a different period within which to appeal,
unless, of course, all of them received their copies on the same date and none filed a motion for
reconsideration. Since each party has a different period within which to appeal, the timely filing of a
motion for reconsideration by one party does not interrupt the other or another partys period of appeal.
[Franco-Cruz v. Court of Appeals, G.R. No. 172238 (2008), Velasco in Division]
Q74: How is appeal perfected as to an appellant?
A: A partys appeal by notice of appeal is deemed perfected as to him,
upon the filing of the notice of appeal in due time and
upon payment of the docket fees.
The notice of appeal does not require the approval of the court. The function of the notice of appeal is
merely to notify the trial court that the appellant was availing of the right to appeal, and not to seek the
courts permission that he be allowed to pose an appeal. [Crisologo v. Judge Daray, A.M. No. RTJ-07-2036
(2008)]

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Q75: What then is the courts duty with respect to a timely appeal by notice of appeal?
A: The trial courts only duty with respect to a timely appeal by notice of appeal is to transmit the original
record of the case to the appellate court. The court is given thirty (30) days from the perfection of the
appeal within which to transmit the record. [Crisologo v. Judge Daray, A.M. No. RTJ-07-2036 (2008)]
Q76: Differentiate certiorari under Rule 45 from Rule 65.
A: The proper remedy of a party aggrieved by a decision of the Court of Appeals is a petition for review
under Rule 45 which is not similar to a petition for certiorari under Rule 65 of the Rules of Court. As
provided in Rule 45 of the Rules of Court, decisions, final orders or resolutions of the Court of Appeals in
any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to the
Court by filing a petition for review, which would be but a continuation of the appellate process over the
original case. A special civil action under Rule 65 is an independent action based on the specific grounds
therein provided and, as a general rule, cannot be availed of as a substitute for the lost remedy of an
ordinary appeal, including that under Rule 45. Accordingly, when a party adopts an improper remedy, his
petition may be dismissed outright. [Sps. Leynes v. Former Tenth Division of the Court of Appeals, G.R. No.
154462 (2011), Velasco in Division] The petition under Rule 45 may raise only questions of law. [Section 1,
Rule 45] Questions of fact are not reviewable. [Uyboco v. People, G.R. No. 211703 (2014), Velasco
ponencia]
Q77: What is a question of law as distinguished from a question of fact?
A: A question of law exists when the doubt centers on what the law is on a certain set of facts. A question
of fact exists when the doubt centers on the truth or falsity of the alleged facts. [Uyboco v. People, G.R. No.
211703 (2014), Velasco ponencia] There is a question of fact when the doubt or difference arises from the
truth or the falsity of the allegations of facts. Put a bit differently, it exists when the doubt or difference
arises as to the truth or falsehood of facts or when the inquiry invites calibration of the whole gamut of
evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific
surrounding circumstances as well as their relation to each other and to the whole, and the probability of
the situation. [Neri v. Sandiganbayan, G.R. No. 202243 (2013), Velasco ponencia]
Q78: What is the test applied to distinguish between a question of law and a question of fact?
A: Thus, the test of whether a question is one of law or of fact is not the appellation given to such
question by the party raising the same; rather, it is whether the appellate court can determine the issue
raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a
question of fact. [Tongonan Holdings v. Escao, G.R. No. 190994 (2011), Velasco in Division]
Q79: What is a writ of preliminary attachment?
A: A writ of preliminary attachment is defined as a provisional remedy issued upon order of the court
where an action is pending to be levied upon the property or properties of the defendant therein, the
same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment that might
be secured in the said action by the attaching creditor against the defendant. It should be resorted to only
when necessary and as a last remedy because it exposes the debtor to humiliation and annoyance. It
must be granted only on concrete and specific grounds and not merely on general averments. Since
attachment is harsh, extraordinary, and summary in nature, the rules on the application of a writ of
attachment must be strictly construed in favor of the defendant. [Watercraft v. Wolfe, G.R. No. 181721
(2015), Velasco in Division]
Q80: What are the requisites for an ex parte issuance of a writ of preliminary attachment?
A: For the issuance of an ex-parte issuance of the preliminary attachment to be valid, an:
(1) affidavit of merit and an
(2) applicant's bond
must be filed with the court in which the action is pending. [Watercraft v. Wolfe, G.R. No. 181721 (2015),
Velasco in Division]

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Q81: What are the conditions of the bond?


A: Such bond executed to the adverse party in the amount fixed by the court is subject to the conditions
that the applicant will pay:
(1) all costs which may be adjudged to the adverse party; and
(2) all damages which such party may sustain by reason of the attachment
if the court shall finally adjudge that the applicant was not entitled thereto. [Watercraft v. Wolfe, G.R. No.
181721 (2015), Velasco in Division]
Q82: What must be contained in an affidavit of merit?
A: An order of attachment shall be granted only when it appears in the affidavit of the applicant, or of
some other person who personally knows the facts:
1.
that a sufficient cause of action exists;
2.
that the case is one of those mentioned in Section 1 of Rule 57;
3.
that there is no other sufficient security for the claim sought to be enforced by the action; and
4.
that the amount due to the applicant, or the value of the property the possession of which he is
entitled to recover, is as much as the sum for which the order is granted above all legal
counterclaims.
The mere filing of an affidavit reciting the facts required by Section 3, Rule 57 is not enough to compel the
judge to grant the writ of preliminary attachment. An affidavit which does not contain concrete and
specific grounds is inadequate to sustain the issuance of such writ. In fact, mere general averments
render the writ defective. [Watercraft v. Wolfe, G.R. No. 181721 (2015), Velasco in Division]
Q83: What is the clearance requirement of a bonding company in relation to bonds filed for the
issuance of a writ of preliminary attachment?
A: In accepting a surety bond, it is necessary that all the requisites for its approval are met; otherwise, the
bond should be rejected. Every bond should be accompanied by a clearance from the Supreme Court
showing that the company concerned is qualified to transact business which is valid only for thirty (30)
days from the date of its issuance. [Torres v. Satsatin, G.R. No. 166759 (2009), Velasco in Division]
Q84: Discuss the difference between, and the importance of, the issuance and the implementation of
the writ of attachment.
A: The distinction is indispensably necessary to determine when jurisdiction over the person of the
defendant should be acquired in order to validly implement the writ of attachment upon his person.
Rule 57 on preliminary attachment speaks of the grant of the remedy at the commencement of the action
or at any time before entry of judgment. This phrase refers to the date of the filing of the complaint, which
is the moment that marks "the commencement of the action." The reference plainly is to a time before
summons is served on the defendant, or even before summons issues.
In Davao Light & Power Co., Inc. v. Court of Appeals (1991), the Court clarified that whatever be the
acts done by the Court prior to the acquisition of jurisdiction over the person of defendant do not and
cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained
by the court. Hence, when the sheriff or other proper officer commences implementation of the writ of
attachment, it is essential that he serve on the defendant not only a copy of the applicants affidavit and
attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also
the summons addressed to said defendant as well as a copy of the complaint.
In Cuartero v. Court of Appeals (1992), the Court held that the grant of the provisional remedy of
attachment involves three stages:
1.
the court issues the order granting the application;
2.
the writ of attachment issues pursuant to the order granting the writ;
3.
the writ is implemented.
For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be
first obtained. However, once the implementation of the writ commences, the court must have acquired
jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act
in any manner against the defendant. Any order issuing from the Court will not bind the defendant.
Thus, it is indispensable not only for the acquisition of jurisdiction over the person of the
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defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him
and the issuance of a writ of preliminary attachment and the grounds therefor that prior or
contemporaneously to the serving of the writ of attachment, service of summons, together with a copy of
the complaint, the application for attachment, the applicants affidavit and bond, and the order must be
served upon him. The subsequent service of summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not allow for retroactivity of a belated service. [Torres v.
Satsatin, G.R. No. 166759 (2009), Velasco in Division]
Q85: What is the application requirement in relation to the issuance of a writ of preliminary injunction?
A: Rule 58, Section 4 (a) of the Rules of Court is clear with regard to the procedure to be followed in the
issuance of writs of preliminary injunction, i.e., a preliminary injunction or temporary restraining order
may be granted only when the application in the action or proceeding is verified, and shows facts entitling
the applicant to the relief demanded. The rule is very explicit in its requirement that a preliminary
injunction may be granted only when the complaint is verified. Absence of verification makes an
application or petition for preliminary injunction patently insufficient both in form and substance. [Rivera
v. Mirasol, A.M. No. RTJ-04-1885 (2004)]
Q86: What is the bond requirement in relation to the issuance of a writ of preliminary injunction?
A: Rule 58, Section 4(b) provides that a bond is executed in favor of the party enjoined to answer for all
damages which it may sustain by reason of the injunction. The purpose of the injunction bond is to
protect the defendant against loss or damage by reason of the injunction in case the court finally decides
that the plaintiff was not entitled to it, and the bond is usually conditioned accordingly. [Republic v.
Caguioa, G.R. No. 168584 (2007), Velasco En Banc]
Q87: Define grave abuse of discretion amounting to law or excess of jurisdiction.
A: The term grave abuse of discretion has a specific meaning. An act of a court or tribunal can only be
considered as with grave abuse of discretion when such act is done in a capricious or whimsical exercise
of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as
to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility. The use of a petition for certiorari is restricted only to truly extraordinary
cases wherein the act of the lower court or quasi-judicial body is wholly void. It is clear that the special
civil action of certiorari under Rule 65 can only strike an act down for having been done with grave abuse
of discretion if the petitioner could manifestly show that such act was patent and gross
Q88: What is an interlocutory order?
A: An interlocutory order is one which does not finally dispose of the case, and does not end the Courts
task of adjudicating the parties contentions and determining their rights and liabilities as regards each
other, but obviously indicates that other things remain to be done by the Court.
Q89: When can you avail of certiorari under Rule 65 to strike down an interlocutory order?
A: The following requisites must concur:
1.
when the tribunal issued such order without or in excess of jurisdiction or with grave abuse of
discretion; and
2.
when the assailed interlocutory order is patently erroneous and the remedy of appeal would not
afford adequate and expeditious relief.
While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in cases
where the tribunal has issued an order without or in excess of jurisdiction or with grave abuse of
discretion, it does not lie to correct every controversial interlocutory ruling.

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Q90: Describe the writ of certiorari.


A: The writ of certiorari is restricted to truly extraordinary cases wherein the act of the lower court or
quasi-judicial body is wholly void. Moreover, it is designed to correct errors of jurisdiction and not errors in
judgment. The rationale is that, when a court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when the error is committed. Otherwise,
every mistake made by a court will deprive it of its jurisdiction and every erroneous judgment will be a
void judgment.
Q91: What is the proper course of action when a trial court errs on matters relating to the admissibility
of evidence and procedural questions during the course of the trial?
A: When the court has jurisdiction over the case and person of the defendant, any mistake in the
application of the law and the appreciation of evidence committed by a court may be corrected only by
appeal. The determination made by the trial court regarding the admissibility of evidence is but an
exercise of its jurisdiction and whatever fault it may have perpetrated in making such a determination is
an error in judgment, not of jurisdiction. Hence, settled is the rule that rulings of the trial court on
procedural questions and on admissibility of evidence during the course of a trial are interlocutory in
nature and may not be the subject of a separate appeal or review on certiorari. They must be assigned as
errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the
merits of the case.
Q92: Differentiate between a ministerial and discretionary act.
A: A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires
neither the exercise of official discretion or judgment.
Q93: What are the requisites for the issuance of a mandamus?
A: Section 3, Rule 65 of the Rules of Court, as amended, provides that any person may file a verified
petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law."
A petition for mandamus will prosper if it is shown that the subject thereof is a ministerial act or duty, and
not purely discretionary on the part of the board, officer or person, and that the petitioner has a welldefined, clear and certain right to warrant the grant thereof. [Lord Allan Jay Q. Velasco v. Hon. Speaker
Feliciano Belmonte, G.R. No. 211140 (2016)]
Q94: Can mandamus compel the Speaker of the House of Representatives to administer the oath to the
rightful Representative of a legislative district?
A: Yes. When the petition is not one for the determination of the right to the claimed office. When the
petitioner has a well-defined, clear and certain right to warrant the grant of the present petition for
mandamus, and the respondent Speaker is legally duty-bound to recognize the petitioner as the duly
elected Member of the House of Representatives in view of the final and executory rulings rendered, the
proper remedy is madamus and not a quo warranto petition. [Lord Allan Jay Q. Velasco v. Hon. Speaker
Feliciano Belmonte, G.R. No. 211140 (2016)]

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Q95: What is the reckoning date for the determination of just compensation?
A: Rule 67 clearly provides that the value of just compensation shall be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first. Typically, the time of taking is
contemporaneous with the time the petition is filed. The general rule is what is provided for by Rule 67.
There are exceptions -- grave injustice to the property owner, the taking did not have color of legal
authority, the taking of the property was not initially for expropriation and the owner will be given undue
increment advantages because of the expropriation. [National Power Corporation v. Ong Co, G.R. No.
166973 (2009), Velasco in Division]
Q96: What is equity of redemption?
A: It is the right of the mortgagor to extinguish the collateral and retain ownership of it exercised after
default in the performance of the condition of the mortgage but before the foreclosure sale of the
collateral by paying the mortgage obligation. The period is no less than 90 days but no more than 120
days from the entry of judgment [Section 2, Rule 68]
Q97: What is equity of redemption in relation to a mortgagors successors-in-interest?
A: All junior lien-holders acquire the right to subordinate to the superior lien of the 1st mortgagee.
Q98: What is the effect of an unforeclosed equity of redemption?
A: A decree of foreclosure where junior lien-holders are not parties, the equity of redemption in their favor
remains unforeclosed and unaffected. A separate foreclosure proceeding should be brought to require
them to redeem from the first mortgagee under penalty of losing the prerogative to redeem.
Q99: Whose rights are defeated?
A: Mortgagees right to foreclose (or assignees).
Q100: What is an ejectment case?
A: Ejectment casesforcible entry and unlawful detainer are summary proceedings designed to
provide expeditious means to protect actual possession or the right to possession of the property involved.
The only question that the courts resolve in ejectment proceedings is: who is entitled to the physical
possession of the premises, that is, to the possession de facto and not to the possession de jure. It does
not even matter if a partys title to the property is questionable. [Barrientos v. Rapal, G.R. No. 169594
(2011), Velasco in Division]
Q101: What is the effect when the issue of ownership is raised by any party?
A: Where the issue of ownership is raised by any of the parties, the courts may pass upon the same in
order to determine who has the right to possess the property. The adjudication is, however, merely
provisional and would not bar or prejudice an action between the same parties involving title to the
property. Unlawful detainer and forcible entry suits, under Rule 70 of the Rules of Court, are designed to
summarily restore physical possession of a piece of land or building to one who has been illegally or
forcibly deprived thereof, without prejudice to the settlement of the parties opposing claims of juridical
possession in appropriate proceedings. In these cases, the issue is pure physical or de facto possession,
and pronouncements made on questions of ownership are provisional in nature. The provisional
determination of ownership in the ejectment case cannot be clothed with finality. [Barrientos v. Rapal, G.R.
No. 169594 (2011), Velasco in Division]
Q102: What is the public policy behind ejectment cases?
A: These actions are intended to avoid disruption of public order by those who would take the law in their
hands purportedly to enforce their claimed right of possession. [Barrientos v. Rapal, G.R. No. 169594
(2011), Velasco in Division]

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Q103: The execution of judgment in an ejectment case is immediately executory. How do you stay
execution?
A: The perfection of the appeal by the defendant does not forbid the favorable action on the plaintiffs
motion for immediate execution. The execution of the decision could not be stayed by the mere taking of
the appeal. Only the filing of the sufficient supersedeas bond and the deposit with the appellate court of
the amount of rent due from time to time, coupled with the perfection of the appeal, could stay the
execution.
The summary nature of the special civil action under Rule 70 and the purpose underlying the mandate for
an immediate execution, which is to prevent the plaintiffs from being further deprived of their rightful
possession, should always be borne in mind. [Ferrer v. Judge Rabaca, A.M. No. MTJ-05-1580 (2010)]
Q104: What is contempt of court?
A: Contempt of court is defined as a disobedience to the court by acting in opposition to its authority,
justice, and dignity. It signifies not only a willful disregard or disobedience of the courts order, but such
conduct which tends to bring the authority of the court and the administration of law into disrepute or, in
some manner, to impede the due administration of justice. It is a defiance of the authority, justice, or
dignity of the court which tends to bring the authority and administration of the law into disrespect or to
interfere with or prejudice party-litigants or their witnesses during litigation. [BPI v. Calanza, G.R. No.
180699 (2010), Velasco in Division]
Q105: What is indirect contempt of court?
A: Indirect contempt of court is governed by Section 3, Rule 71 of the Rules of Court which provides for
the specific acts which may be punished for indirect contempt. To be considered contemptuous, an act
must be clearly contrary to or prohibited by the order of the court or tribunal. A person cannot, for
disobedience, be punished for contempt unless the act which is forbidden or required to be done is clearly
and exactly defined, so that there can be no reasonable doubt or uncertainty as to what specific act or
thing is forbidden or required. [BPI v. Calanza, G.R. No. 180699 (2010), Velasco in Division]

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SPECIAL PROCEEDINGS
Q1: What is the writ of amparo? How is it distinguished from the writ of habeas corpus? What is the
writ of habeas data?
A:
Writ of Habeas Corpus
Writ of Amparo
Writ of Habeas Data
Involves:
Involves right to life, liberty and Involves the right to privacy in
1. All cases of illegal
security violated or threatened
life, liberty or security violated
confinement and detention in
with violation by an unlawful
or threatened by an unlawful
which any person is deprived of act or omission of a public
act or omission of a public
his liberty
official or employee or a private official or employee, or of a
2. Cases where the rightful
individual or entity
private individual or entity
custody of any person is
engaged in the gathering,
withheld from the person
collecting or storing of data or
entitled.
information regarding the
person, family, home and
correspondence of the
aggrieved party.
Filed by party for whose relief it Filed by aggrieved party or any Filed by aggrieved party or any
is intended or by some person
qualified person or entity in the qualified person or entity in the
on his behalf
ff. order:
ff. order:
Immediate family
Immediate family
Ascendant, descendant, or
Ascendant, descendant, or
collateral relative w/in 4th civil
collateral relative w/in 4th civil
degree
degree
Concerned citizen/organization
If granted by SC, CA, or any
Enforceable anywhere in the
Enforceable anywhere in the
member of said courts,
Phils. regardless of who issued Phils. regardless of who issued
enforceable anywhere in the
the same
the same
Phils.; if granted by RTC,
enforceable only within its
judicial region
Q2 [Bar 2015]: Hercules was walking near a police station when a police officer signaled for him to
approach. As soon as Hercules came near, the police officer frisked him but the latter found no
contraband. The police officer told Hercules to get inside the police station. Inside the police station,
Hercules asked the police officer, Sir, may problema po ba? Instead of replying, the police-officer
locked up Hercules inside the police station jail. What is the remedy available to Hercules to secure his
immediate release from detention?
A: Hercules remedy to secure his immediate release is to file a petition for the issuance of the writ of
habeas corpus. Generally, the purpose of the writ is to inquire into all manner of involuntary restraint, and
to relieve a person therefrom if such restraint is illegal. Through the writ of habeas corpus, one may
obtain relief from illegal confinement, be liberated from imprisonment without sufficient cause, or be
delivered from unlawful custody. [Villavicencio v Lukban, G.R. No. L-14639 (1919)] In this case, Hercules
was arbitrarily frisked, detained, and locked up. The writ of habeas corpus may obtain his immediate
release.
Q3 [Bar 2012]: A wants to file a petition for writ of habeas data against the AFP in connection with
threats to his life allegedly made by AFP intelligence officers. A needs copies of AFP highly classified
intelligence reports collected by Sgt. Santos who is from AFP. Which court can A file his petition with?
A: Under the Rule on the Writ of Habeas Data, A has the option to file with the Regional Trial Court a)
where he, the petitioner, resides, or b) where Sgt. Santos, the respondent, resides, or c) the RTC which
has jurisdiction over the place where the data or information is gathered, collected or stored. Since what
he needs are copies of the AFPs highly classified intelligence reports, which are public data files of AFP
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(a government office), he may also file with the Supreme Court, the Court of Appeals, or the
Sandiganbayan.
Q4 [Bar 2015]: The residents of Mt. Ahohoy, headed by Masigasig, formed a nongovernmental
organization Alyansa Laban sa Minahan sa Ahoyhoy (ALMA) to protest the mining operations of Oro
Negro Mining in the mountain. ALMA members picketed daily at the entrance of the mining site
blocking the ingress and egress of trucks and equipment of Oro Negro, hampering its operations.
Masigasig had an altercation with Mapusok arising from the complaint of the mining engineer of Oro
Negro that one of their trucks was destroyed by ALMA members. Mapusok is the leader of the
Association of Peace Keepers of Ahoyhoy (APKA), a civilian volunteer organization serving as auxiliary
force of the local police to maintain peace and order in the area. Subsequently, Masigasig disappeared.
Mayumi, the wife of Masigasig, and the members of ALMA searched for Masigasig, but all their efforts
proved futile. Mapagmatyag, a member of ALMA, learned from Maingay, a member of APKA, during
their binge drinking that Masigasig was abducted by other members of APKA, on order of Mapusok.
Mayumi and ALM sought the assistance of the local police to search for Masigasig, but they refused to
extend their cooperation.
Mayumi filed with the RTC a petition for the issuance of the writ of amparo against Mapusok
and APKA. ALMA also filed a petition for the issuance of the writ of amparo with the Court of Appeals
against Mapusok and APKA. Respondents Mapusok and APKA, in their Return filed with the RTC
raised among their defenses that they are not agents of the State; hence, cannot be impleaded as
respondents in an amparo petition.
Q4.1: Is their defense tenable?
A: No. The writ of Amparo covers enforced disappearances, which include an arrest, detention or
abduction of a person by a government official or organized groups or private individuals acting with the
direct or indirect acquiescence of the government [Section 1, Rule on Writ of Amparo] as well as cases
where the State refuses to disclose the fate or whereabouts of the person concerned or acknowledge the
deprivation of liberty, which effectively places such persons outside the protection of the law. [Sec. of
National Defense v. Manalo, G.R. No. 180906 (2008)] In this case, Masigasig was abducted by APKA,
which, although being a civil volunteer organization, is auxiliary to the local police force and therefore
serve as agents of the State, and may be impleaded as respondents in an amparo petition.
Q4.2: Respondents Mapusok and APKA, in their Return filed with the CA, raised as their defense that
the petition should be dismissed on the ground that ALMA cannot file the petition because of the
earlier petition filed by Mayumi with the RTC. Are respondents correct in raising their defense?
A: Yes. Under Sec. 2(c) of the Rule on the Writ of Amparo, the filing of a petition by the aggrieved party
suspends the right of all other authorized parties to file similar petitions. Those who may file under the
rule are: a) the aggrieved party; or, b) qualified persons or entities, in the following order: any member of
the immediately family (i.e. spouse, children, parents of the aggrieved party), any ascendant, descendant
or collateral relative of the aggrieved party within the fourth civil degree of consagunity or affinity, in
default of the former, or any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party. In this case, Mayumi, the
aggrieved partys wife, had already filed a petititon. ALMA may no longer file the same petition.
Q4.3: Mayumi later filed separate criminal and civil actions against Mapusok. How will the cases
affect the amparo petititon she earlier filed?
A: The Writ of Amparo shall be consolidated with the criminal action. Under Sec. 23 of the Rule of
Amparo, when a criminal and separate civil action are filed subsequent to the Writ of Amparo, the latter
shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the petition.

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Q5 [Bar 2006]: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang
Village, Muntinlupa City, of sound and disposing mind, executed a last will and testament in English, a
language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of
land in Makati City and cash deposit at the City Bank in the sum of P300 Million. He bequeathed P50
Million each to his 3 sons and P150 Million to his wife. He devised a piece of land worth P100 Million to
Susan, his favorite daughter-in-Iaw. He named his best friend, Cancio Vidal, as executor of the will
without bond.
Q5.1: Is Cancio Vidal, after learning of Sergio's death, obliged to file with the proper court a petition for
probate of the latter's last will and testament?
A: No. Rule 75, Sec. 3 of the Rules of Court provides that the person named executor shall present the
will to the court having jurisdiction, unless the will has reached it in any manner, and signify acceptance
or refusal of the trust within twenty days after he knows of the death of the testator or after he knows that
he is named executor. Thus, he is obliged to present the will to the court if it is in his custody, but he is not
obliged to accept the trust.
Q5.2: Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to
produce a copy in her possession to be submitted to the probate court?
A: Yes. Rule 75, Sec. 2 of the Rules of Court provides that the person who has custody of the will shall
deliver the will to the court having jurisdiction or, to the executor within twenty (20) days after he knows
of the death of the testator.
Q5.3: Can the probate court appoint the widow as executor of the will?
A: Yes. Rule 78, Sec. 6 provides that the surviving wife may be appointed executor of the will, provided
she is competent and willing to serve, and if no executor is named in the will, or the executor/s named are
incompetent, or refuse the trust, or fail to give a bond. In this case, Cancio Vidal, the person named
executor of the will, did not file a bond.
Q5.4: Can the widow and her children settle extrajudicially among themselves the estate of the
deceased?
A: No. Sec. 1, Rule 74 of the Rules of Court provides that extra-judicial settlement of the estate may be
done by the heirs through a public instrument filed in the office of the register deeds, provided that the
decedent died intestate, left no debts or the heirs have already paid such at the time of the partition, that
the heirs are all of age, or that the minors are represented by their legal or judicial representatives, and
there is no disagreement among the heirs. In this case, the decedent did not die intestate he executed a
will. One of the requisites under Rule 74, Sec. 1 was not met.
Q5.5: Can the widow and her children initiate a separate petition for partition of the estate pending the
probate of the last will and testament by the proper court?
A: No. Testate proceedings take precedence over intestate proceedings of the same estate. [Sandoval v.
Santiago, G.R. No. L-1723 (1949)]. If the in the course of intestate proceedings pending before a court of
first instance, it is found that the decedent had left a last will and testament, proceedings for the probate
of the latter should replace the intestate proceedings, without prejudice to the possibility that should the
alleged will be rejected or is disapproved, the proceeding shall continue as an intestacy. [Uriarte v. CFI,
G.R. No. L-21938 (1970)]. All the more reason that if probate proceedings are already pending, then the
widow and her children may not initiate a separate petition for partition of the estate.
Q6 [Bar 2012]: What are the jurisdictional facts that must be alleged in a petition for probate of a will?
How do you bring before the court these jurisdictional facts?
A: The jurisdictional facts that must be alleged in a petition for probate of a will are: a) the fact of death
of the decedent, b) his residence at the time of his death in the province where the probate court is sitting,
or c) if the decedent is an inhabitant of a foreign country at the time of death, the estate he left in the
province of the probate court. [Palaganas v. Palaganas, G.R. No. 169144 (2011)]
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Q7: Pinoy died without a will. His wife, Rosie, and three children executed a deed of extrajudicial
settlement of his estate. The deed was properly published and registered with the Office of the
Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy.
She sought to annul the settlement alleging that she was deprived of her rightful share in the estate.
Rosie and the three children contended that (1) the publication of the deed constituted
constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy's action had
already prescribed. Are Rosie and the three children correct? Explain.
A: In general, the publication constituted constructive notice to the whole world and is binding.
Insolvency proceedings and settlement of a decedents estate are both proceedings in rem, which are
binding against the whole world. All persons having interest in the estate subject matter involved,
whether they were notified or not, are equally bound. The court acquires jurisdiction over all interested
persons through the publication of the notice prescribed. The only instance where a party interest in a
probate proceeding may have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence not imputable to negligence, and
even then, the remedy is to secure relief by reopening the same case by proper motion within the
reglementary period, and not by independent action. [Vda. De Alberto v. Court of Appeals, G.R. No. L29759 (1989)] This is the case with Suzy.
That said, Suzys action has not prescribed. In the case of an alleged preterition of a compulsory
heir by reason of alleged bad faith or fraud, the remedy is an action for rescission under Art. 1104 of the
Civil Code, which must be instituted within the prescriptive period of four years from the approval of the
agreement of partition. [Vda. De Alberto v. Court of Appeals, G.R. No. L-29759 (1989)] In this case, Suzy
appeared three years after the deed was published and registered with the Register of Deeds, within the
four-year period to file an action for rescission.
Q8: What are the different modes of changing name/entries in the civil registry?
A:
Rule 103
Rule 108
Cancellation/ Correction of
Entries in the Civil Registry

R.A. 9048

Rule or Law

Change of Name

Clerical Error Act

Subject Matter

Change of full name or family Cancellation or correction of Change of first name or


name (substantial
civil registry entries
nickname and correction of
corrections)
(substantial corrections)
civil registry entries (only
typographical or clerical
errors)

Who may File

A person desiring to change


his name. (Section 1)

Any person interested in any


act, event, order or decree
concerning the civil status of
persons which has been
recorded in the civil register.
(Section 1)

Venue

RTC of the province in which


petitioner resided for 3 years
prior to filing.

RTC of city or province where 1. Local civil registry office of


the corresponding civil
the city or municipality where
registry is located.
the record being sought to be
corrected or changed is kept;

Any person having direct and


personal interest in the
correction of a clerical or
typographical error in an
entry and/or change of first
name or nickname. (Section
3)

2. Local civil registrar of the


place where the interested
party is presently residing or
domiciled;
3. Philippine Consulate
Grounds

1. Name is ridiculous, tainted Upon good and valid


PAGE 25 OF 42

1. Petitioner finds the first

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REMEDIAL LAW PRE-WEEK [SPECIAL PROCEEDINGS]

Rule 103

Kind of
proceeding

Rule 108

R.A. 9048

with dishonor and extremely grounds.


difficult to write of
pronounce;
2. Consequence of change of
status;
3. Necessity to avoid
confusion;
4. Having continuously used
and been known since
childhood by a Filipino name,
unaware of her alien
parentage;
5. A sincere desire to adopt a
Filipino name to erase signs
of former alienage all in good
faith and without prejudicing
anybody.

name or nickname to be
ridiculous, tainted with
dishonor or extremely
difficult to write or
pronounce;
2. The new first name or
nickname has been
habitually and continuously
used by petitioner and he has
been publicly known by that
first name or nickname in the
community; or
3. The change will avoid
confusion. (Section 4)

Judicial Proceeding

Administrative Proceeding

Judicial Proceeding
Adversarial in nature
because involves substantial
changes and affects the
status of an individual

Q9: Armado filed a petition for letters of administration in the CFI of Calamba Laguna alleging that the
decedent had died intestate and had left properties in Calamba, Laguna. Armado was appointed
special administratrix thereof. Zoila opposed, stating that venue had been improperly laid, presenting
the death certificate of the decedent, showing that his residence at the time of death, and three
months prior, to have been Qeuzon City, presenting a residence certificate and death certificate to that
effect. A rmadotestified that the decedent was residing in Calamba, Laguna at the time of his death.
Should Zoilas opposition be granted?
A: Yes. Venue was improperly laid. Rule 73, Sec. 1 provides that if the decedent is an inhabitant of the
Philippines at the time of his death, letters of administration is granted and his estate settled in the CFI in
the provinces in which he resides at the time of his death. A death certificate is admissible to prove the
residence of the decedent at the time of his death, which, in this case, was Quezon City.
Q10: Mr. Paktay died intestate on August 24, 2014. His widow initiated intestate proceedings and on
September 30, 2014 the probate court issued an order granting letters of administration. It also issued
a notice requiring the payment of all claims within 12 months. On October 4, 2015, Makalimutin Inc.s
CFO realized that Mr. Paktay still had an outstanding P1,500,000 loan. Makalimutin Inc thereafter
filed its claim on November 4, 2015. Mrs Paktay, the administratrix, argues that the 1-month period to
file a tardy claim has already lapsed on October 30, 2015. Is she correct? Explain.
A: No, Mrs. Paktay is not correct. The statute of non-claims mandates that all claims against the estate
must be filed within the period fixed by the probate court, which shall not be less than 6 months nor more
than 12 months after the first publication of the notice. A creditor may file a tardy claim, however, at any
time before an order of distribution after showing cause and within a period not exceeding 1 month. This
1-month period is reckoned from the order authorizing the payment of the tardy claim and not from the
original period fixed by the probate court. [Rule 86, Section 2; Barredo vs Court of Appeals, G.R. No. L17863 (1962)]

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CRIMINAL PROCEDURE
Q1:
Distinguish between amendment and substitution of a criminal information.
A:
The 1st and 2nd paragraph of Section 14, Rule 110 provides the rules for amendment of the
information or complaint, while the 3rd paragraph refers to the substitution of the information or
complaint. Both amendment and substitution of the information may be made before or after the
defendant pleads, but they differ in the following aspects:
Amendment
Substitution
Changes involved
Either formal or substantial
Substantial change from the original
changes
charge
How made
If made before plea, can be made Must be made with leave of court since
without leave of court
the original information is dismissed

Necessity of
preliminary
investigation or new
plea
Nature of offense

Whether accused
may invoke double
jeopardy if original
information is
withdrawn
[Rule 110, Sec. 14]

If made after plea and during


trial, formal amendment must be
with leave of court and must not
prejudice rights of accused
No need for PI or new plea if
amendment is only as to form
Same offense charged in the
original information, or an offense
which necessarily includes or is
necessarily included in the
original charge
Yes, since basically it is the same
offense

Need for another PI and new plea under


the new information
Different offense

No, since the substituted information is


a different offense

Q2: B was admitted as a probationary midshipman at the PMMA. To reach active status, all new
entrants were required to successfully complete the mandatory Indoctrination and Orientation
Period. B died. A criminal case was filed with the RTC against several students as principals.
Eventually, a criminal case charging (several school authorities) SSA as accomplices to the crime of
hazing was filed with the Sandiganbayan. Meanwhile, the RTC dismissed the Information against
the principal accused. SSA filed a Motion to Quash the Information. They argued that the case
against the principal accused had already been dismissed with finality by the RTC. There being no
more principals with whom they could have cooperated in the execution of the offense, they
asserted that the case against them must be dismissed. The Sandiganbayan dismissed the criminal
case, holding that the fact that the charge against the principal accused was dismissed with finality
favorably carried with it the indictment against those charged as accomplices, whose criminal
responsibility was subordinate to that of the former. It stressed that before there can be an
accomplice, there must be a principal by direct participation, the latter being the originator of the
criminal design. Since there were no principal perpetrators to speak of, necessarily, there was no
one else with whom they could have cooperated in the execution of the crime of hazing. Was the
dismissal proper?
A: The case against those charged as accomplices is not ipso facto dismissed in the absence of trial of
the purported principals; the dismissal of the case against the latter; or even the latters acquittal,

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especially when the occurrence of the crime has in fact been established. In People v. Rafael, the
Supreme Court En Banc reasoned thus: The corresponding responsibilities of the principal,
accomplice, and accessory are distinct from each other. As long as the commission of the offense can
be duly established in evidence, the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal. Accordingly, so long as the commission of the crime
can be duly proven, the trial of those charged as accomplices to determine their criminal liability can
proceed independently of that of the alleged principal.
There is no showing that the case was dismissed against the alleged principals because no crime had
been committed. Hence, the Sandiganbayan committed an error when it simply dismissed the case
against the alleged accomplices without so much as scrutinizing the reason for the dismissal of the
case against the purported principals. [People v Ltjg. Bayabos, GR No. 171222, February 18, 2015]
Q3: What is the rule on the implied institution of the civil action in the criminal action?
A: [Rule 111, Sec. 1]
General rule: The civil action for the recovery of civil liability arising from the offense charged is deemed
instituted with the criminal action.
Exception: The civil action is not deemed so instituted if the offended party:
(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal action; or
(3) Reserves the right to institute it separately.
Instances where reservation to file the civil action separately shall not be allowed:
(1) B.P. 22 cases [Sec. 1 [b], Rule 111]
(2) Cases cognizable by the Sandiganbayan [P.D. 1606 as amended by R.A. 8249, Sec. 4]
(3) Tax cases [R.A. 9282, Sec. 7 [b][1]]
Q4: A instituted a criminal complaint for libel against the accused B, who publicly imputed to A acts
constituting violations of the Anti-Graft and Corrupt Practices Act. Pending trial, B died.
Subsequently, A filed a civil action for damages based on Article 33 of the Civil Code against the
executor of Bs estate. The heirs of B moved for the dismissal of the civil action, asserting that the
civil liability of B was extinguished by his death. Should dismissal of the civil action be granted?
A: No. The claim for civil liability survives notwithstanding the death of the accused, if the same may
also be predicated on a source of obligation other than delict. An action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the Rules
on Criminal Procedure. The extinguishment of the criminal and civil liability arising from an ex-delicto
will not bar the private offended party from pursuing his claim for damages against the executor or
administrator of the former's estate, notwithstanding the fact that he did not reserve the right to
institute a separate civil action based on Article 33 of the Civil Code. [Villegas v. Court of Appeals (1997)]
Q5: C previously had a case filed against him. Said case was scheduled for arraignment, he was
already bonded and ready to enter a plea. The RTC, however, decided that there was insufficient
evidence to constitute the crime alleged. In a subsequent prosecution for the same acts and the
same crime, can C invoke double jeopardy?
A: To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must
have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the
second jeopardy must be for the same offense as that in the first. Legal jeopardy attaches only (a)
upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having
been entered; and (e) the case was dismissed or otherwise terminated without the express consent of
the accused.
Here legal jeopardy did not attach. First, he never entered a valid plea. He himself admitted
that he was just about to enter a plea, but the first case was dismissed even before he was able to do
so. Second, there was no unconditional dismissal of the complaint. The case was not terminated by

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reason of acquittal nor conviction but simply because he posted bail. Absent these two elements,
there can be no double jeopardy. [Canceran v. People, GR. No. 206442, July 1, 2015, applying Rule 117
Sec. 7]
Q6: S was accused of violating the Dangerous Drugs Act. Court hearings were set but the
prosecutions principal witness, the arresting officer, failed to attend. Seven months later, the judge
issued an order provisionally dismissing the cases with the express consent of the accused. One
month after, a Motion to Reopen the Case was filed by the arresting officer, accompanied with
reasons for the failure to attend the previous hearings. The judge ordered the case reopened and set
it for continuation of hearing. S filed a motion for reconsideration, to which the public prosecutor
filed a comment supporting the position of the witness. Was the reopening of the case proper?
A: Yes. A case shall not be provisionally dismissed except with the express consent of the accused
and with notice to the offended party. The Order stresses in no uncertain terms that the dismissal of
the case was provisional. There was nothing in the records showing the accuseds opposition to the
provisional dismissal nor was there any after the Order of provisional dismissal was issued. If a
criminal case is provisionally dismissed with the express consent of the accused, the case may be
revived by the State within the periods provided under the 2nd paragraph of Section 8, Rule 117.
Generally, the prosecutor should have been the one who filed the motion to revive because it is the
prosecutor who controls the trial. But in this particular case, the defect, if there was any, was cured
when the public prosecutor later actively participated in the denial of the accuseds motion for
reconsideration. The accused is charged with a public crime, hence, it is a victim-less crime. Hence, in
some instances, as in this case, it is the arresting officer who filed the motion to revive the case out of
his sense of duty as a police officer and compelled by his sense of obligation considering that he knew
his absence was the cause why the complaint was provisionally dismissed. In drug-related cases, the
arresting officers are usually required to explain by their superiors when a case is provisionally
dismissed due to their failure to appear during trial. Thus, in order to exonerate themselves from a
possible administrative and criminal liability, the arresting officers would then opt instead to file the
motion to revive on their own. [Saldariega v. Hon. Panganiban, GR No. 211933 (2015), applying Rule 117,
Section 8, Velasco in Division]
Q7: A instituted a criminal complaint for libel against the accused B, who publicly imputed to A acts
constituting violations of the Anti-Graft and Corrupt Practices Act. Pending trial, B died.
Subsequently, A filed a civil action for damages based on Article 33 of the Civil Code against the
executor of Bs estate. The heirs of B moved for the dismissal of the civil action, asserting that the
civil liability of B was extinguished by his death. Should dismissal of the civil action be granted?
A: No. The claim for civil liability survives notwithstanding the death of the accused, if the same may
also be predicated on a source of obligation other than delict. An action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the Rules
on Criminal Procedure. The extinguishment of the criminal and civil liability arising from an ex-delicto
will not bar the private offended party from pursuing his claim for damages against the executor or
administrator of the former's estate, notwithstanding the fact that he did not reserve the right to
institute a separate civil action based on Article 33 of the Civil Code. [Villegas v. Court of Appeals (1997)]

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Q8: May an injunction be issued by a court to restrain criminal prosecution?


A: [Brocka v. Enrile (1990)]
General rule: criminal prosecution may not be restrained or stayed by injunction, preliminary or final.
Exceptions:
(1) To afford adequate protection to the constitutional rights of the accused;
(2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions;
(3) When there is a pre-judicial question which is sub judice;
(4) When the acts of the officer are without or in excess of authority;
(5) Where the prosecution is under an invalid law, ordinance or regulation;
(6) When double jeopardy is clearly apparent;
(7) Where the court has no jurisdiction over the offense;
(8) Where it is a case of persecution rather than prosecution;
(9) Where the charges are manifestly false; and
(10) When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.
Q9: What are the remedies of an accused in case there was a lack of or an irregular preliminary
investigation?
A:
1. In cases of inquest proceedings, before the filing of the complaint or information in court, the
arrested person has the option to avail of a 15-day preliminary investigation, provided he duly
signs a waiver of Article 125 of the RPC. The decision of the inquest prosecutor is not appealable
to the DOJ, since such remedy applies only in cases subject of preliminary
investigation/reinvestigation.
2. Once a complaint or information is filed in court, the accused may ask for a preliminary
investigation within five days from the time he learns of its filing.
3. The accused may also move for a Judicial Determination of Probable Cause.
4. In cases, however, where a re-investigation was already conducted by the prosecution upon
motion of the private complainant after the filing of the information but before arraignment, and
the accused failed to actively participate in such re-investigation despite his knowledge of such,
the accused is barred from praying for a conduct of preliminary investigation, there being no
substantial distinction between a preliminary investigation and a reinvestigation. [Leviste v.
Alameda, G.R. No. 182677 (2010)]
Q10: Felilibeth Aguinaldo was charged with the crime of Estafa. Information was filed against her.
Fililibeth filed a petition for review before DOJ, for the latter to review the City Prosecutors finding
of probable cause. Pending the DOJs resolution, one year and one month after the filing of the
petition, the prosecution moved for arraignment and issuance of a warrant of arrest against
Fililibeth. The RTC granted the prosecutions motion. Fililibeth assails the decision of the RTC,
asserting that her petition before the DOJ effectively suspended the criminal proceedings before the
RTC. Was the RTC correct in ordering the arraignment and arrest of the accused?
A: Yes. The petition for review before the DOJ did not sanction an indefinite suspension of the
proceedings in the trial court. While the pendency of a petition for review is a ground for suspension of
the arraignment under Rule 116, Sec. 11(c), the provision limits the deferment of the arraignment to a
period of 60 days reckoned from the filing of the petition with the reviewing office. It follows, therefore,
that after the expiration of said period, the trial court is bound to arraign the accused or to deny the
motion to defer arraignment. [Rule 116, Section 11(c); Aguinaldo v. Ventus, G.R. No. 176033 (2015),
Velasco in Division]

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Q11: What are the instances of a valid warrantless arrest?


A: A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts and circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another. [Rule 113, Sec. 5, Sec. 14]
Q12: Mr. X was arrested without a warrant, allegedly caught in possession of 200 grams of
marijuana after a buy-bust operation. After being charged before the Regional Trial Court of Illegal
Possession of Dangerous Drugs, Mr. X wants to file an application for bail pending trial, but is
concerned that he may no longer be able to question the validity of his arrest. What would you say
to Mr. X if he comes to you for legal advice?
A: I would advise Mr. X to proceed with the filing of the application for bail, considering that under
Section 26 of Rule 114 of the Rules of Court, an application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or
from assailing the regularity or questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. [Rule 114, Sec. 26]
Q13: What are the grounds cited for the grant of bail in Enrile v. People (2015)?
A: [Enrile v. People (2015)]
(1) The detainee will not be a flight risk or a danger to the community; and
(2) There exist special, humanitarian, and compelling circumstances.
Q14: Mr. X was invited by police officers to the police station for an interview regarding an alleged
crime which Mr. X is suspected to have committed. There was no complaint or information filed
before any prosecutor or any court as of the date of the interview. He was not arrested; the police
officers have no intention of detaining him. Is Mr. X entitled to the rights of a person arrested,
detained or under custodial investigation under Republic Act No. 7438?
A: Yes. Under Section 2 of RA 7438, custodial investigation includes the practice of issuing an invitation
to a person who is investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the inviting officer for any violation of law. Jurisprudence also
provides that custodial investigation starts when the police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police
who starts the interrogation and propounds questions to the person to elicit incriminating statements.
[Sec. 2, RA 7438; People vs. Lara, G.R. No. 199877 (2012)]
Q15: What are the rights of persons under custodial investigation?
A:
(1) Any person arrested detained or under custodial investigation shall at all times be assisted by
counsel.
(2) (b) Any public officer or employee, or anyone acting under his order or his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to remain silent and to have
competent and independent counsel, preferably of his own choice, who shall at all times be
allowed to confer privately with the person arrested, detained or under custodial investigation.
If such person cannot afford the services of his own counsel, he must be provided with a
competent and independent counsel by the investigating officer.
(3) The custodial investigation report shall be reduced to writing by the investigating officer,
provided that before such report is signed, or thumbmarked if the person arrested or detained

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does not know how to read and write, it shall be read and adequately explained to him by his
counsel or by the assisting counsel provided by the investigating officer in the language or
dialect known to such arrested or detained person, otherwise, such investigation report shall
be null and void and of no effect whatsoever.
(4) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or in
the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder
brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any proceeding.
(5) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in
the presence of his counsel; otherwise the waiver shall be null and void and of no effect.
(6) Any person arrested or detained or under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or any medical doctor or priest or
religious minister chosen by him or by any member of his immediate family or by his counsel,
or by any national non-governmental organization duly accredited by the Commission on
Human Rights of by any international non-governmental organization duly accredited by the
Office of the President. The person's "immediate family" shall include his or her spouse, fianc
or fiance, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew
or niece, and guardian or ward.
Q16: Differentiate between a demurrer to evidence in a criminal case and in a civil case.
A: [Rule 119 and Rule 33]
Criminal Case
Civil Case
Necessity of leave Defendant may file demurrer with Defendant has right to file demurrer
of court
or without leave of court.
without necessity of leave of court.
Effect of denial
If demurrer is filed with leave of If denied, the defendant has the right to
court, the accused may adduce present evidence.
evidence in his defense.

Effect of grant

If demurrer is filed without leave


of court, the accused waives the
right to present evidence, and
submits the case for judgment on
the basis of the evidence for the
prosecution.
If granted, the accused is
acquitted and the prosecution
cannot appeal.

If granted, the complaint is dismissed,


but the plaintiff may still appeal.
If on appeal, the order granting the
demurrer is reversed, the defendant
loses the right to present evidence.

Q17: Can you assail the denial of a demurrer through the special civil action of certiorari?
A: The special civil action for certiorari is generally not proper to assail such an interlocutory order
issued by the trial court because of the availability of another remedy in the ordinary course of law. It is
not an insuperable obstacle to this action, however, that the denial of the demurrers to evidence of the
petitioners was an interlocutory order that did not terminate the proceedings, and the proper recourse
of the demurring accused was to go to trial, and that in case of their conviction they may then appeal
the conviction, and assign the denial as among the errors to be reviewed.

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The Constitution itself has imposed the duty to correct errors of jurisdiction as a result of capricious,
arbitrary, whimsical and despotic exercise of discretion. The exercise of this power to correct grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government cannot be thwarted by rules of procedure to the contrary or for the
sake of the convenience of one side. The Court has the bounden constitutional duty to strike down
grave abuse of discretion whenever and wherever it is committed. Thus, notwithstanding the
interlocutory character and effect of the denial of the demurrers to evidence, the accused could avail
himself of the remedy of certiorari when the denial was tainted with grave abuse of discretion. [Gloria
Macapagal-Arroyo vs. Sandiganbayan, G.R. No. 220598 (2016), interpreting Section 23, Rule 119, in
relation to Section 1 of Art. VIII of the Constitution]
Q18: B went missing and the police had no leads. Later, M executed sworn statements confessing to
his participation in the murder of B. He named J1, J2, D, P and F as co-conspirators. Those
statements led to the discovery of a cadaver, and the circumstances of death corroborates Ms
statements on its material points. He was subsequently discharged, although he was a principal by
direct participation who had participated in the planning, preparation and execution stage of the
crime. J1, on the other hand, participated merely by inducement. J1 now questions whether M
should be discharged due to his degree of participation. Was the trial courts discharge of M as state
witness proper?
A. Yes. By jurisprudence, most guilty refers to the highest degree of culpability in terms of
participation in the commission of the offense and does not necessarily mean the severity of the
penalty imposed. What the rule avoids is the possibility that the most guilty would be set free while his
co-accused who are less guilty in terms of participation would be penalized. In Chua v. People (1996),
which involved a motion to discharge an accused, the Court declared that if one induces another to
commit a crime, the influence is the determining cause of the crime. Without the inducement, the
crime would not have been committed; it is the inducer who sets into motion the execution of the
criminal act. To place the Chua ruling in proper perspective, the Court considered the principal by
inducement as the most guilty based on the specific acts done by the two accused and bearing in mind
the elements constitutive of the crime.
Thus, as a rule, for purposes of resolving a motion to discharge an accused as a state witness,
what are controlling are the specific acts of the accused in relation to the crime committed.
J1s argument that a principal by direct participation is more guilty than the principal by inducement as
the Revised Penal Code penalizes the principal by inducement only when the principal by direct
participation has executed the crime is unavailing. The severity of the penalty imposed is part of the
substantive criminal law which should not be equated with the procedural rule on the discharge of the
particeps criminis. The procedural remedy of the discharge of an accused is based on other considerations,
such as the need for giving immunity to one of several accused in order that not all shall escape, and the
judicial experience that the candid admission of an accused regarding his participation is a guaranty that
he will testify truthfully. [Jimenez, Jr. v. People, G.R. No. 209195 (2014), applying Rule 119 Sec.17(d)]
Q19: What are the requisites for reopening a case?
A: [Rule 119, Sec. 24; Cabarles v. Maceda, G.R. No. 161330 (2007), Velasco in Division]
Reopening must be before the finality of a judgment of conviction;
The order to reopen is issued by the judge on his own initiative or upon motion;
The order to reopen is issued only after a hearing is conducted;
The order to reopen intends to prevent a miscarriage of justice; and
The presentation of additional and/or further evidence should be terminated within 30
days from the issuance of the order.

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Q20: R and E were charged with for the sale of illegal drugs. However, they were convicted only of
illegal possession of prohibited drugs. Is their conviction proper?
A: Yes. Section 4, Rule 120 of the Rules of Court provides for the variance doctrine which allows
conviction for an offense that is different from the one charged in the Information when the offense
proved is included in the offense charged, or of the offense charged which is included in the offense
proved.
Since sale of dangerous drugs necessarily includes possession of the same, R and E can
properly be convicted of possession.
Q21: Does the Neypes doctrine apply to criminal cases?
A: The Supreme Court has ruled that Neypes doctrine (fresh period after denial of MR/MNT) should
equally apply to criminal cases since although Rule 41 Section 3 of the Rules on Civil Procedure and
Rule 122 Section 6 on the Rules of Criminal Procedure are differently worded, there is no substantial
difference between the two provisions insofar as legal results are concerned. [Yu v. Samson-Tatad, G.R.
No. 170979 (2011)]
Q22: What are the exceptions to the constitutional proscription against warrantless searches and
seizures?
A: (a) warrantless search incidental to a lawful arrest recognized under Section 13, Rule 126 of the
Rules of Court; (b) seizure of evidence under plain view; (c) search of a moving vehicle; (d) consented
warrantless search; (e) customs search; (f) stop-and-frisk situations (Terry search); and (g) exigent and
emergency circumstances. In these exceptional situations, the necessity for a search warrant is
dispensed with. [People v. Belocura, G.R. No. 173474 (2012)]
Q23: S Inc., as the buyer, entered into a contract of sale of real estate properties with B, Inc., the
seller. After the contract of sale between S and B was perfected, S demanded that B deliver to it the
TCTs pertaining to their objects of sale. B, however, refused to deliver. Hence, S simultaneously
filed an administrative complaint for Specific Performance before the HLURB, as well as a criminal
complaint before the City Prosecutor for the criminal violation of Section 25 of Presidential Decree
No. 957. In their joint counter-affidavit, the directors and officers of B filed a motion to suspend the
proceedings before the City Prosecutor, averring that the proceedings before the HLURB was a
prejudicial question which would warrant the suspension of the criminal action against them.
Should the criminal action be suspended?
A: Yes, although the rule on prejudicial question only pertains to civil cases, the rules on prejudicial
question may be applied in analogous situations where an issue in an administrative case was
considered a prejudicial question to the resolution of a civil case which, consequently, warranted the
suspension of the latter until after termination of the administrative proceedings. [Quiambao v. Osorio
(1988)] Here, the action for specific performance in the HLURB raises a prejudicial question that
sufficed to suspend the proceedings determining the criminal charge. The action for specific
performance in the HLURB would determine whether or not S, the buyer, was legally entitled to
demand the delivery of the TCTs, while the criminal action would decide whether or not Bs directors
and officers were criminally liable for withholding the TCTs. This is true simply because the action for
specific performance was an action civil in nature but could not be instituted elsewhere except in the
HLURB, whose jurisdiction over the action was exclusive and original. [San Miguel Properties, Inc. v.
Perez (2013)]

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EVIDENCE
Q1: Discuss the fruit of the poisonous tree doctrine.
A: When evidence is obtained through an unlawful search, the seized item is inadmissible in evidence
against the accused. This is an instance of seizure of the fruit of the poisonous tree. Hence, the
confiscated item is inadmissible in evidence consonance with Article III, Section 3(2) of the 1987
Constitution: Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
A waiver of an illegal arrest is not a waiver of an illegal search. Jurisprudence is replete with
pronouncements on when a warrantless search can be conducted. These searches include: (1) search
of a moving vehicle; (2) seizure in plain view; (3) customs search; (4) waiver or consented search; (5)
stop-and-frisk situation; (6) search incidental to a lawful arrest; and (7) exigent and emergency
circumstance. [Villanueva v. People, G.R. No. 199042 (2014), Velasco in Division]
Q2: What should an accused establish in order for his defense of alibi to prosper?
A: For the defense of alibi to prosper, the accused must establish that:
(1) he was in another place at the time of the commission of the offense; and
(2) he was so far away that he could not have been physically present at the place of the crime, or its
immediate vicinity, at the time of its commission. [People v. De Jesus, G.R. No. 186528 (2011), Velasco
ponencia]
Q3: What is the treatment given by courts to recantations of testimony?
A: Recantations are viewed with suspicion and reservation. The Court looks with disfavor upon
retractions of testimonies previously given in court. The rationale for the rule is obvious: affidavits of
retraction can easily be secured from witnesses, usually through intimidation or for a monetary
consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will
later be repudiated. Only when there exist special circumstances in the case which when coupled with
the retraction raise doubts as to the truth of the testimony or statement given, can retractions be
considered and upheld. This is especially true when an affidavit of desistance is made by a witness
after conviction of the accused; the same is not reliable, and deserves only scant attention. [People v.
P/Supt. Lamsen, G.R. No. 198338 (2013)]
The test to decide which testimony to believe is one of comparison coupled with the
application of the general rules of evidence. A testimony solemnly given in court should not be set
aside and disregarded lightly, and before this can be done, both the previous testimony and the
subsequent one should be carefully compared and juxtaposed, the circumstances under which each
was made, carefully and keenly scrutinized, and the reasons or motives for the change,
discriminatingly analyzed. [Firaza v. People, G.R. No. 154721 (2007)]
Q4: When is judicial notice mandatory?
A: A court shall take judicial notice, without the introduction of evidence, of the:
existence and territorial extent of states,
their political history,
forms of government and
symbols of nationality;
the law of nations,
the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines,
the official acts of legislative, executive and judicial departments of the Philippines,
the laws of nature,
the measure of time, and
the geographical divisions [Section 1, Rule 129]

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Q5: When is judicial notice discretionary?


A: A court may take judicial notice of matters which are:
of public knowledge, or
are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
Q6: What is the difference between a judicial admission and an extrajudicial admission?
A:
Judicial
Extrajudicial
Made in connection with a judicial proceeding in Any other admission [Secs. 26 and 32, Rule 130]
which it is offered [Sec. 4, Rule 129]
May be conclusive [Sec. 4, Rule 129]
Rebuttable
May be written, oral express or implied
Q7: A buy-bust operation was conducted against Resurreccion. Upon his arrest, he was taken to the
NBI Office. The confiscated shabu was marked at the police headquarters and not immediately
upon arrest. Does the failure of the buy-bust team to immediately mark the seized drugs cast doubt
on the identity of shabu?
A: No. The failure to immediately mark seized drugs will not automatically impair the integrity of the
chain of custody. The first link in the chain of custody is that the marking be made (1) in the presence of
the accused and (2) upon immediate confiscation. There is no time frame that defines what
immediate confiscation means. Marking upon immediate confiscation contemplates even marking at
the nearest police station or office of the apprehending team. In the given case, there was compliance
with this requirement when the sachets of shabu were marked in the headquarters.
Non-compliance with the immediate physical inventory and photographing requirement under
justifiable reasons does not render the seizure void, so long as the integrity and evidentiary value of
the seized items are properly preserved. What is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized items. [People v. Resurreccion, G.R. No. 186380
(2009), Velasco ponencia]
Q8: What is the Best Evidence Rule? What are the exceptions to this rule?
A: Under the best evidence rule, the original document must be produced whenever its contents are
the subject of inquiry. Stated otherwise, when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document.
Exceptions:
When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole; and
When the original is a public record in the custody of a public officer or is recorded in a
public office. [Section 3, Rule 130 of the Rules of Court, Country Bankers Insurance Corp. v.
Lagman, G.R. No. 165487 (2011)]

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Q9: Before a party is allowed to adduce secondary evidence to prove the contents of the original
document, what should the offeror of the secondary evidence prove first?
A: The offeror has to prove the following first:
the existence or due execution of the original;
the loss and destruction of the original or the reason for its non-production in court;
and
on the part of the offeror, the absence of bad faith to which the unavailability of the
original can be attributed.
The correct order of proof is as follows: existence, execution, loss, and contents. [MCMP Construction
Corp. v. Monark Equipment Corp., G.R. No. 201001 (2004), Velasco ponencia]
Q10: In their complaint for quieting of title and damages against Margarita Prodon, the Heirs of
Alvarez averred as the plaintiffs that their parents, the late spouses Maximo S. Alvarez, Sr. and
Valentina Clave, were the registered owners of that parcel of land. They alleged that the original
copy of the title contained an entry stating that the property had been sold to defendant Prodon
subject to the right of repurchase; and that said entry had been maliciously done by Prodon because
the deed of sale with right to repurchase covering the property did not exist. The principal issue
raised by the plaintiffs Heirs of Alvarez, which the respondents Heirs of Prodon challenged head on,
was whether or not the deed of sale with right to repurchase, duly executed by the late Maximo
Alvarez, Sr., had really existed. Is the Best Evidence Rule (BER) applicable in this case?
A: No. The Best Evidence Rule is not applicable in this case because the terms of the deed of sale with
right to repurchase were not the issue. Indeed, for Prodon who had the burden to prove the existence
and due execution of the deed of sale with right to repurchase, the presentation of evidence other than
the original document, like testimonies of witnesses to the contract, the Notarial Register of the notary
public, and the Primary Entry Book of the Register of Deeds, would have sufficed even without first
proving the loss or unavailability of the original of the deed.
Q11: What is the reason behind the parol evidence rule?
A: Spoken words could be notoriously unreliable unlike a written contract which speaks of a uniform
language. Thus, under the general rule in Section 9 of Rule 130 of the Rules of Court, when the terms
of an agreement were reduced to writing, it is deemed to contain all the terms agreed upon and no
evidence of such terms can be admitted other than the contents thereof. [Ortanez v. CA, G.R. No.
107372. January 23, 1997]
Q12: What is the Parol Evidence Rule? What are the exceptions to this rule?
A: The Parol Evidence Rule excludes parol or extrinsic evidence by which a party seeks to contradict,
vary, add to or subtract from the terms of a valid agreement or instrument.
When the terms of an agreement have been reduced to writing, it is considered as containing all the
terms agreed upon and there can be, between the parties and their successors in interest, no evidence
of such terms other than the contents of the written agreement. [Marquez v. Espejo, G.R. No. 168387
(2010), Velasco in Division]
EXCEPTIONS: However, a party may present evidence to modify, explain or add to the terms of the
written agreement if he puts in issue in his pleading:
An intrinsic ambiguity, mistake, or imperfection in the written agreement;
The failure of the written agreement to express the true intent and agreement of the
parties thereto;
The validity of the written agreement; or
The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement. [Section 9, Rule 130 of the Revised Rules of
Court]

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Q13: Can a person who is not a party to the written document invoke the parol evidence rule?
A: No. Rule 130, Section 9 specifically provides that parol evidence rule is exclusive only as between
the parties and their successors-in-interest. The parol evidence rule may not be invoked where at least
one of the parties to the suit is not a party or a privy of a party to the written document in question,
and does not base his claim on the instrument or assert a right originating in the instrument. Hence,
the examination of the parties respective parol evidence, in order to determine their true intent of the
parties, is warranted. [Marquez v. Espejo, G.R. No. 168387, (2010), Velasco in Division]
Q14: What are the exceptions to the disqualification of a person to give testimonial evidence
against his or her spouse during their m arriage?
A: (1) civil case by one against the other
(2) a criminal case for a crime committed by one against the other or the latter's direct descendants or
ascendants [Rule 130, Section 22]
Q15: The "Dead Man's Statute" provides that if one party to the alleged transaction is precluded
from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to
the undue advantage of giving his own uncontradicted and unexplained account of the
transaction. What are the requisites that must be complied before this rule can be successfully
invoked to bar the introduction of testimonial evidence?
A:
(1) The witness is a party or assignor of a party to case or persons in whose behalf a case in prosecuted.
(2) The action is against an executor or administrator or other representative of a deceased person or a
person of unsound mind;
(3) The subject-matter of the action is a claim or demand against the estate of such deceased person
or against person of unsound mind;
(4) His testimony refers to any matter of fact of which occurred before the death of such deceased
person or before such person became of unsound mind. [Chan v. Chua, G.R. No. 143340 (2001);
Rule 121, Section 23]
Q16: When is the Dead Mans Statute inapplicable?
A:
(1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud
which fraud was established by evidence other than the testimony of the survivor. [Ong Chua v. Carr,
G.R. No. L-29512 (1929)]
(2) He may also testify where he was the one sued by the decedents estate since the action then is not
against the estate. [Tongco v. Vianzon, G.R. No. 27498 (1927)]
(3) He may likewise testify where the estate had filed a counterclaim against him or where the estate
cross-examined him as to matters occurring during the lifetime of the deceased. [Goi v. CA, G.R.
No. L-27434 (1986)]
(4) No application to a mere witness
(5) No application to nominal parties, officers and stockholders against corporations
(6) Cannot be used in a negative testimony
(7) If the defendant did not object
(8) When the party cross-examines the witness
(9) Where the purpose of the oral testimony is to prove a lesser claim than what might be warranted
by clear written evidence, to avoid prejudice to the estate of the deceased [Icard v. Marasigan, G.R.
No. L-47442 (1941)]
(10) Agent of the deceased as to transactions or communications with the deceased or incompetent
person which were made with an agent of such person in cases in which the agent is still alive and
competent to testify [Goi v. CA, G.R. No. L-27434 (1986)]

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Q17: What is a privileged communication?


A: A privilege is a rule of law that, to protect a particular relationship or interest, either permits a
witness to refrain from giving testimony he otherwise could be compelled to give, or permits someone
usually one of the parties, to prevent the witness from revealing certain information. Examples of this
privilege are marital privilege, parental-filial privilege, physician-patient privilege, attorney-client
privilege, and presidential communications privilege.
Q18: What are the requisites for the attorney-client privilege to apply?
A:
(1) There must be a communication made by the client to the attorney or an advice given by the
attorney to his client;
(2) The communication must have been given in confidence;
(3) The communication or advice must have been given either in the course of the professional
employment or with a view to professional employment; and
(4) The client has not given his consent to the attorneys testimony thereon.
Attorneys secretary, stenographer, or clerk are also covered by the rule and cannot be examined
concerning any fact the knowledge of which has been acquired in such capacity without the
consent of the client AND their employer.
Q19: Separate informations were filed charging Omictin with illegal recruitment in large scale and
estafa. Omicitin claims that the testimony of prosecution witness, Mr. Anthony Ambrosio, that he
(Ambrosio) gave the amount of sixteen thousand (16,000.00) pesos to him (Omictin), representing
initial payment in consideration of the work abroad was self-serving. Ambrosios testimony was
unsubstantiated by any proof that he made such payment. No receipt was presented. Is Ambrosios
statement self-serving, and hence inadmissible?
A: No. Ambrosios statement is not self-serving. Self-serving statements are inadmissible because the
adverse party is not given the opportunity for cross-examination, and their admission would
encourage fabrication of testimony. This cannot be said of a partys testimony in court made under
oath, with full opportunity on the part of the opposing party for cross-examination.
A self-serving declaration is one that is made by a party, out of court and in his favor. It does not
include the testimony he gives as a witness in court. [People v. Omicitin, G.R. No. 188130 (2010),
Velasco ponencia]
Q20: What is the doctrine on independently relevant statements?
A: The doctrine on independently relevant statements holds that conversations communicated to a
witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were
actually made. Evidence as to the making of such statements is not secondary but primary, for in itself
it (a) constitutes a fact in issue or (b) is circumstantially relevant to the existence of such fact. [Republic
v. Heirs of Alejaga, G.R. No. 146030 (2002)]
Q21: May an offer of compromise be admitted as an implied admission of guilt?
A: In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in
evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law
to be compromised, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt. [Section 27, Rule 130]

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Q22: The accused made an offer of compromise on December 5, 2000. The criminal complaint for
violation of Bouncing Checks Law was filed against the accused on 9 March 2001. May the offer of
compromise be used against the accused?
A: No. It is inadmissible. The Offer of Compromise dated 5 December 2000 was made prior to the
filing of the criminal complaint against her on 9 March 2001 for a violation of the Bouncing Checks
Law. The Offer of Compromise was clearly not made in the context of a criminal proceeding and,
therefore, cannot be considered as an implied admission of guilt. [San Miguel v. Kalalo, G. R. No.
185522, June 13, 2012]
Q23: What are the exceptions to the res inter alios acta rule?
A:
1. Admission by co-partner or agent. The act or declaration of a partner or agent of the party within the
scope of his authority and during the existence of the partnership or agency, may be given in
evidence against such party after the partnership or agency is shown by evidence other than such act
or declaration.
2. Act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.
3. Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act of declaration.
4. Admission by privies. Where one derives title to property from another, the act, declaration, or
omission of the latter, while holding the title, in relation to the property, is evidence against the
former. [Sections 29, 30, 31 of the Rules of Court]
Q24: What is testimonial knowledge?
A: This petrains to testimony generally confined to personal knowledge. A witness can testify only to
those facts which he knows of his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in the rules. [Section 36, Rule 130]
Q25: What is hearsay evidence?
A: Hearsay evidence is defined as evidence not of what the witness knows himself but of what he has
heard from others. It is a basic rule in evidence set forth in Section 36 of Rule 130 of the Rules of Court
that a witness can testify only to those facts which he knows of his own personal knowledge, i.e., which
are derived from his own perception; otherwise, such testimony would be hearsay. [People v.
Manyuhod, G.R. No. 124676. May 20, 1998]
Q26: What are the requisites of res gestae?
A: A declaration or an utterance is thus deemed as part of the res gestae that is admissible in
evidence as an exception to the hearsay rule when the following requisites concur:
(a) the principal act, the res gestae, is a startling occurrence;
(b) the statements were made before the declarant had time to contrive or devise; and
(c) the statements must concern the occurrence in question and its immediately attending
circumstances. [People v. Villarico, G.R. No. 158362 (2011)]
The rule on res gestae encompasses the exclamations and statements made by either the participants,
victims, or spectators to a crime immediately before, during, or immediately after the commission of
the crime when the circumstances are such that the statements were made as a spontaneous reaction
or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant
to deliberate and to fabricate a false statement.The test of admissibility of evidence as a part of the res
gestae is, therefore, whether the act, declaration, or exclamation is so intimately interwoven or
connected with the principal fact or event that it characterizes as to be regarded as a part of the
transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture
testimony. [People v. Salafranca, G.R. No. 173476 (2012)]

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Q27: What are the requisites for a dying declaration to be admissible?


A: In order for a dying declaration to be held admissible, four requisites must concur:
(1) The declaration must concern the cause and surrounding circumstances of the declarant's death;
(2) At the time the declaration was made, the declarant must be under the consciousness of an
impending death;
(3) The declarant is competent as a witness; and
(4) The declaration must be offered in a criminal case for homicide, murder, or parricide, in which the
declarant is the victim. [People v. Serenas, G.R. No. 188124 (2010), Velasco in Division]
Q28: What does consciousness of an impending death mean in the context of a dying declaration?
A: At the time the declaration was made, the declarant must be under the consciousness of an
impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in
inevitable and imminent death must be entered by the declarant. It is the belief in impending death
and not the rapid succession of death in point of fact that renders the dying declaration admissible. It
is not necessary that the approaching death be presaged by the personal feelings of the deceased. The
test is whether the declarant has abandoned all hopes of survival and looked on death as certainly
impending. [People v. Cerilla, G.R. No. 177147 (2007)]
In the case of People v. Salafranca [G.R. No. 173476 (2012)], the declarant Bolanon
communicated his ante-mortem statement to Estao, identifying Salafranca as the person who had
stabbed him. At the time of his statement, Bolanon was conscious of his impending death, having
sustained a stab wound in the chest and, according to Estao, was then experiencing great difficulty in
breathing. Bolanon succumbed in the hospital emergency room a few minutes from admission, which
occurred under three hours after the stabbing. There is ample authority for the view that the
declarants belief in the imminence of his death can be shown by the declarants own statements or
from circumstantial evidence, such as the nature of his wounds, statements made in his presence, or
by the opinion of his physician. Bolanon would have been competent to testify on the subject of the
declaration had he survived. Lastly, the dying declaration was offered in this criminal prosecution for
murder in which Bolanon was the victim.
Q29: Can documents that were identified and marked as exhibits during pre-trial or trial be treated
as evidence?
A: No. The trial court is bound to consider only the testimonial evidence presented and exclude the
documents not offered. Documents which may have been identified and marked as exhibits during
pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as
evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must
be stressed that there is a significant distinction between identification of documentary evidence and
its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the
marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The
mere fact that a particular document is identified and marked as an exhibit does not mean that it has
already been offered as part of the evidence. It must be emphasized that any evidence which a party
desires to submit for the consideration of the court must formally be offered by the party; otherwise, it
is excluded and rejected. [Heirs of Pasag v. Sps. Lorenzo, G.R. No. 155483 (2007), Velasco ponencia]
Q30: How is an official record proved?
A: The record of public documents when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied. If the record is not kept in the Philippines, it may be evidenced with a
certificate that such officer has the custody. If the office in which the record is kept is in foreign country,
the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office. [Section 24,
Rule 132]

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Q31: When should an offer of evidence be made?


A: As regards the testimony of a witness, the offer must be made at the time the witness is called to
testify.
Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing.
[Section 35, Rule 132]
Q32: Differentiate burden of proof from burden of evidence.
A: The burden of proof is on someone who alleges the affirmative of the issue. It is upon the
plaintiff in a civil case. However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favour, the duty or the burden of evidence shifts to defendant to controvert
plaintiffs prima facie case, otherwise, a verdict must be returned in favour of plaintiff. The burden of
evidence is shifted only if the party upon whom it is lodged was able to adduce preponderant
evidence to prove his or her claim. [Vitrarich Corp. v Losin, G.R. No. 181560 (2010); BPI v. Sps. Royeca,
G.R. No. 176664 (2008)]
When self-defense is invoked, the burden of evidence shifts to the accused to show that the
killing was legally justified. Thus, the accused must prove these requisites for self-defense: (1) unlawful
aggression on the part of the victim; (2) lack of sufficient provocation on the part of the accused; and
(3) employment of reasonable means to prevent and repel aggression. [People v. Cuasay, G.R. No.
180512 (2008), Velasco ponencia]
Q33: What are the requisites for circumstantial evidence to be sufficient to warrant conviction?
A: Circumstantial evidence shall be sufficient for conviction when the following requisites are
complied with:
(1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proved; and
(3) the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. [People v. Lucero, G.R. No. 188705 (2011), Velasco ponencia]
Q34: Give instances of conclusive presumptions.
A: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led
to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them.
Q35: When can a tenant deny the title of his landlord?
A: If the title asserted is one that is alleged to have been acquired subsequent to the commencement
of the landlord-tenant relation. The tenant may show that the landlord's title has expired or been
conveyed to another or himself; and he is not estopped to deny a claim for rent, if he has been ousted
or evicted by title paramount. What a tenant is estopped from denying is the title of his landlord at the
time of the commencement of the landlord-tenant relation. [Section 2 (b), Rule 131; Ermitao v. Paglas,
G.R. No. 174436 (2013), Velasco in Division]

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