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REMEDIAL LAW

REMEDIAL LAW is that branch of law which provides for the jurisdiction of courts and the
rules concerning pleading, practice, and procedure before the courts. ( Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure, Riguera, 3rd ed., 2015).
Q: What is the nature of remedial law?
A: Remedial law are promulgated by
authority of law, as such, they have the
force and effect of law if not in conflict
with substantive law (Ateneo v. De La
Rosa, G.R. No. L-286, March 28, 1946).
Q: How are remedial laws implemented
in our system of government?
(BAR 2006)
A:Remedial laws are implemented in our
system of government through the pillars
of the judicial system, including the
prosecutory service, our courts of justice
and quasi-judicial agencies.
SUBSTANTIVE
LAW

REMEDIAL LAW

As to definition
It
creates,
defines
and It
prescribes
the
regulates rights method of enforcing
and duties that rights and obtaining
give rise to a redress
for
their
cause of action. invasions.
(Bustos
v.
Lucero,
G.R.
No.
L-2086,
March 8, 1949)
As to establishment of vested rights
It makes vested No vested rights.
rights.
As to Application
It is prospective It is retroactive.
in application.
It is applicable to
actions pending and
undetermined at the

time of their passage.


As to Authority of the Supreme Court
It cannot be
enacted by the
Supreme
Court.
It
originates
from
the
legislature.

The SC is expressly
empowered
to
promulgateprocedural
rules by Art VIII. Sec.
5(5)
of
the
Constitution.

RULE MAKING POWER OF THE


SUPREME COURT
The
Supreme
Court
has
the
constitutional power to promulgate rules
concerning
pleading,
practice
and
procedure (Sec. 5[5]. Art VIII, Constitution
of the Philippines).
Q: May Congress repeal, alter, or
supplement rules concerning pleading,
practice, and procedure?
A: No. The power of Congress to repeal,
alter or supplement rules concerning
pleading, practice and procedure was
taken away by the 1987 Constitution. The
Supreme Court now has the sole
authority to promulgate rules concerning
pleading, practice and procedure in all
courts. (GSIS vs. Caballero, G.R No.
158090, 4 October 2010)
3 LIMITATIONS ON THE RULE MAKING
POWER OF THE SUPREME COURT
1.

The rules shall provide simplified


and inexpensive procedure for the

2
speedy disposition of cases;
2. The rules shall be uniform for all
courts of the same grade; and
3. The rules shall not diminish,
increase or modify substantive
rights(Art. VIII Sec. 5[5], 1987 Phil.
Constitution).
POWER OF THE SUPREME COURT TO
AMEND AND SUSPEND PROCEDURAL
RULES
The courts have the power to relax or
suspend technical or procedural rules or
to except a case from their operation
when compelling reasons so warrant or
when the purpose of justice requires it.
What constitutes good and sufficient
cause that would merit suspension of the
rules is discretionary upon the court.
(Commissioner of Internal Revenue v.
Migrant Pagbilao Corporation, G.R. No.
159593. October 12, 2006).
Q: May the Supreme Court overturn
judicial precedents in the exercise of
its rule making power?
A: Yes.The constitutional power of the
Supreme Court to promulgate rules of
practice and procedure to amend or
repeal the same, necessarily carries with
it the power to overturn judicial
precedents on points of remedial law
through the amendment of the Rules of
Court. (Pinga v. Heirs of Santiago, G.R No.
170354, June 30, 2006).
Q: What is the primary objective of the
suspension of the rules?
A: In the interest of just and expeditious
proceedings, the Supreme Court may
suspend the application of the Rules of
Court and except a case from its

operation because the Rules were


precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice (Republic v. CA, et al.,
L-31303-04, May 31, 1978).
CONCEPT OF JUDICIAL POWER
JUDICIAL POWER includes the duty of
the courts of justice:
1. To settle actual controversies involving
rights, which are legally demandable and
enforceable and;
2. To determine whether or not there has
been grave abuse of discretion amounting
to lack or excess of jurisdiction on the
part of any branch or instrumentality of
the Government (CONST. ART. VIII,SEC 1).
Q: To whom the judicial power is
vested?
A: The judicial power shall be vested in
one Supreme Court and in such other
lower courts as may be established by law
(CONST. ART. VIII, SEC.1).
NATURE OF PHILIPPINE COURTS
Q: What is a court?
A: A court is an organ of government
belonging to the judicial department the
function of which is the application of the
laws to controversies brought before it as
well as the public administration of
justice (Blacks, 5th Edition, 356).
A court is called upon and authorized to
administer justice. Sometimes it refers to
the place where justice is administered
(20 Am Jur 2d, Courts, 1, 1965; 21
C.J.S., Courts, 1).
COURT AS DISTINGUISHED
FROM A JUDGE

A
court
is
a
tribunal officially
assembled under
authority of law.

A court is an
organ
of
the
government with a
personality
separate
and
distinct from the
person
judge
A
judge isora public
officer.
A court is a being
in
imagination
comparable to a
corporation.
The existence of
the
court
is
continuous and is
not affected by the
death, resignation,
or cessation from
the service of the
judge
presiding
over it.

A judge is simply
an officer of such
tribunal
(Wagen Horst v.
Philadelphia
Insurance
Company 358pa.
The judge has no
separate
and
distinct
personality from
the court.
A court is an
office.
A judge is a
physical person.

and signed by him, containing clearly and


distinctly a statement of the facts proved
and the law upon which the judgment is
based (Etoya v. Abraham Singson, Adm.
Matter No. RTJ-91-758, September 26,
1994).
An opinion of the court is the informal
expression of the views of the court and
cannot prevail against its final order. The
opinion of the court is contained in the
body of the decision that serves as a
guide or enlightenment to determine the
ratio decidendi of the decision. The
opinion forms no part of the judgment
even if combined in one instrument, but
may be referred to for the purpose of
construing the judgment (Contreras v.
Felix, G.R. No. L-477, June 30, 1947).
CLASSIFICATION OF COURTS

The judge shall


have such powers
only as he/she
continues
to
occupy the office.
The death of the
judge does not
mean the death
of the court
(Riano,
Civil
Procedure;
restatement
for
the bar 2009,

Judgment vs. Opinion of the Court


(2006)
Q: What is the difference between a
judgment and an opinion of the court?
A: The judgment or fallo is the final
disposition of the Court which is reflected
in the dispositive portion of the decision.
A decision is directly prepared by a judge

1. Courts of Law vs. Courts of Equity


Court of law decides a case according
to the promulgated law while a court
of equity adjudicates a controversy
according to the common precepts of
what is right and just without
inquiring into the terms of the
statutes.
Philippines courts, either original or
appellate, are courts of law and equity.
(U.S. v. Tamparong, No. 9527 August
23, 1915).
2. Constitutional Court vs. Statutory
Court
Constitutional Court is one created
by a direct constitutional provision. It
owes its creation from the constitution
itself.

4
Example: Supreme Court. (Sec 1, Art.
VIII, Constitution)
Statutory Court is one created by a
law other than the constitution. It
owes its creation from statutory
enactments. All courts in the
Philippines, except the Supreme
Court, are statutory courts.
Example: Sandiganbayan.
3. Superior Court vs. Inferior Court
Superior
Court
is
one
with
controlling authority over other courts
and with an original jurisdiction of its
own.
Inferior Court is one which is
subordinate to another court, the
judgment of which may be reviewed by
a higher tribunal (The Bar Lecture
Series, VOL.I, Civil Procedure, RIANO,
2014 ,p.61).
4. Civil Court vs. Criminal Court
Civil Courts are those which
determine
controversies
between
private persons.
Criminal Courts are those which
adjudicate offenses alleged to have
been committed against the State (The
Bar Lecture Series, VOL.I, Civil
Procedure,,RIANO, 2014,p.61)
5. As to Level
a. First Level - Metropolitan Trial
Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts.
b. Second Level - Regional Trial

Courts
c. Third Level - Court of Appeals,
Court
of
Tax
Appeals,
Sandiganbayan
d.

Fourth
LevelSupreme
Court(HERRERA, REMEDIAL LAW
VOL.I 2007 P.118).
JURISDICTION IN GENERAL

Latin: juris and dico I speak of the


law
JURISDICTION is the power and
authority of the court to hear, try and
decide a case. It has also been referred to
as the power or capacity given by the law
to a court or tribunal to entertain, hear,
and determine certain controversies (Dela
Cruz vs. Court of Appeals, 510 SCRA 103,
1041)
Q: What is
jurisdiction?

the

effect

of

lack

of

A: The proceedings conducted or


decisions made by a court are legally void
when there is absence of jurisdiction.
This is true even where the court in good
faith believes that the subject matter is
within its jurisdiction.
ERROR OF
JURISDICTION

ERROR OF
JUDGMENT

Error
of
jurisdiction
is
one where the act
complained of was
issued
by
the
court without or
in
excess
of
jurisdiction
(Cabrera vs. Lapid,
510 SCRA 55, 66)

Error
of
judgment
presupposes that
the court is vested
with jurisdiction
over the subject
matter
of
the
action but, in the
process
of
exercising
that

A
judgment
rendered without
a jurisdiction is
void.
Correctible only by
certiorari.
LACK OF
JURISDICTION
There is lack of
jurisdiction when
the court is not
vested by law with
authority or power
to take cognizance
of a case.

jurisdiction,
it
committed
mistakes in the
appreciation of the
facts
and
the
evidence
leading
to an erroneous
judgment
An
Erroneous
judgment is not a
void judgment.
Reviewable only by
appeal.
EXCESS OF
JURISDICTION
Excess
of
jurisdiction
presupposes
the
existence of an
authority for the
court to assume
jurisdiction over a
case but, in the
exercise of that
authority, it acted
beyond the power
conferred upon it.
(RIANO
supra,
2014, p. 74)

FOUR CONCEPTS OF JURISDICTIONIN


CIVIL CASES
1. JURISDICTION OVER THE SUBJECT
MATTER is the authority and power of
the court to hear and determine a
particular or specified class of case.
The term "subject matter" refers to the
thing, right or contract under the dispute
(De La Rama vs. Mendiola,401 SCRA 704,
711)
Example: RTC over cases where the

subject of the litigation is incapable of


pecuniary estimation.
Q: How is jurisdiction over the subject
matter is determined?
A: Jurisdiction over the subject matter is
conferred by law and determined by the
allegations in the complaint(Gustilo vs.
Gustilo III, 659 SCRA 619, 622).
2. JURISDICTION OVER THE PARTIES
is the power of the court to bind a party
or person.
Q: How is jurisdiction acquired over
the person of the plaintiff and the
defendant?
A: Jurisdiction acquired over the
person of the plaintiff is acquired by the
filing of the complaint or petition.
Jurisdiction over the person of the
defendant is obtained by service of
summons
or
his
voluntary
appearance(The Bar Lecture Series, VOL.I,
Civil Procedure, RIANO, 2014, p.71).
Jurisdiction over the person of the
defendant is required only in an action in
personam. Jurisdiction over the person of
the defendant is NOT a prerequisite in an
action in rem and quasi in rem (Gomez v.
CA, 425 SCRA 98).
Q:
Amorsolo,
a
Filipino
citizen
permanently residing in New York City,
filed with the RTC of Lipa City a
complaint for Rescission of Contract of
Sale of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas,
Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an
assessed value of 19,700. Appended to
the complaint is Amorsolos verification
and certification of non-forum shopping
executed in New York City, duly notarized

6
by Mr. Joseph Brown, Esq., a notary
public in the State of New York. Brigod
filed a motion to dismiss the complaint on
the following grounds:

seizure by the court of the thing in


question, thus placing it in custodia legis.

(a)
The
court
cannot
acquire
jurisdiction
over
the
person
of
Amorsolo because he is not a resident
of the Philippines;BAR QUESTION (2009)

b) By provision of the law authorizing


the court to deal with property or subjectmatter within its territorial jurisdiction.

A: The ground raised lacks merit because


jurisdiction over the person of a plaintiff
is acquired by the court upon the filing of
plaintiffs complaint therewith. Residency
or citizenship is not a requirement for
filing a complaint, because plaintiff
thereby submits to the jurisdiction of the
court.
3. JURISDICTION OVER THE ISSUES is
the power of the court to try and decide
the issues raised in the pleadings of the
parties (Reyes vs. Diaz, 73 Phil. 484, 487)
A: How is jurisdiction acquired and
conferred over the issues?
a) By the allegations in the pleadings of
the parties;
b) By the agreement of the parties in a
pre-trial order or stipulation; or
c) By their implied consent as by failure
of a party to object to evidence on an
issue not covered by the pleadings, as
provided in Sec. 5, Rule 10.
4. JURISDICTION OVER THE RESis the
power of the court to try a case which
would bind real or personal property or
determine the status of a party.
Q: How is jurisdiction acquired over
the res?
A:

a) By the actual or constructive

Example: Attachment or Garnishment;

Example:
Land
registration
proceedings or suits involving civil status
or real property in the Philippines.
Q: Distinguish jurisdiction from venue.
(BAR 2006)
A: JURISDICTION treats of the power of
the Court to decide a case on the merits,
while VENUE refers to the place where
the suit may be filed. . Jurisdiction is a
matter of substantive law; venue, of
procedural law. Jurisdiction may be not
be conferred by consent through waiver
upon a court, but venue may be waived,
except in criminal cases
In criminal actions, however, venue is
jurisdictional. (Nocum et al. v. Tan, G.R.
No. 145022, September 23, 2005; Santos
III v. Northwest Airlines, G.R. No. 101538,
June 23, 1992).
JURISDICTION

VENUE

The authority to hear


and determine a case.

The place where the


case is to be heard or
tried.

Matter of substantive
law.

Matter of procedural
law

Establishes a relation
between the court
and
the
subject
matter

Establishes a relation
between plaintiff and
defendant,
or
petitioner
and
respondent.

Fixed by law and


cannot be conferred
by the parties.

May be conferred by
the act or agreement
of the parties.

question that same jurisdiction (Tijam v.


Sibonghanoy, G.R. No. L- 21450, April 15,
1968).

Lack of jurisdiction
over
the
subject
matter is a ground for
a
motu
proprio
dismissal.

Not a ground for


motu
proprio
dismissal except in
summary procedure.

CLASSIFICATION OF JURISDICTION
a. As to
Cases Tried

Authority of the court to


hear and determine all
actions and suits.
2. Limited Jurisdiction

HOW JURISDICTION IS CONFERRED


AND DETERMINED
Q: WHEN is Jurisdiction Determined?
A: Jurisdiction is determined by the law
at the time of the filing of the complaint.
The jurisdiction of a court to try a
criminal action is determined by the law
in force at the time of instituting the
action and not at the time of the
commission of the crime.

b. As to
Nature of the
Cause

Q: How is jurisdiction determined?


It is determined by the allegations set
forth in the complaint; and it is not
waived, except through Estoppel by
Laches.
General rule: The defense of lack of
jurisdiction cannot be waived and may be
raised at any stage of the proceeding even
on appeal since it is conferred by law (De
Leon vs. Court of Appeals, 245 SCRA 166,
1995).

c. As to.
Nature and
Extent of
Exercise

Authority of the court to


hear
and
determine
particular cases only.
3.
Original
Jurisdiction
It is exercised by a court
or body in the first
instance. It refers to the
power of the court to
take cognizance of a case
at
its
inception
or
commencement.
4.
Appellate
Jurisdiction
It is exercised by a court
or body over a case
elevated to it by way of
review.
5.Exclusive
Jurisdiction

It is exercised by a court
or body to the exclusion
of all other courts.
6.Concurrent
Jurisdiction
It is exercised over a case
or subject matter by two
or more courts or bodies.

Exception: A party may be barred from


raising the defense of lack of jurisdiction
or jurisdiction may be waived on the
ground of estoppel by laches.
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

1. General Jurisdiction

d. As to Situs

7.Territorial
Jurisdiction

8
It is exercised within the
limits of the place where
the court is located.

I.

Q: How shall the Rules of Court be


construed? (BAR 1998)

8.
Extra-Territorial
Jurisdiction
It is exercised beyond the
the confines of the
territory where the court
is located.

A: The Rules of Court should be liberally


construed in order to promote their
objective of securing a just, speedy and
inexpensive disposition of every action
and proceeding. (Sec. 6, Rule 1 1997
Rules of Civil Procedure.) However, strict
observance of the rules is an imperative
necessity when they are considered
indispensable to the prevention of
needless delays and to the orderly and
speedy dispatch of judicial business.
(Alvero vs. Judge de la Rosa, 76 Phil. 428)

CONCEPT OF RESIDUAL
JURISDICTION
This is the power of the trial court to
issue
protective
orders,
approve
compromises,
permit
appeals
of
indigent litigants, order execution
pending
appeal,
and
allow
the
withdrawal of appeal where the court is
normally
deemed
to
have
lost
jurisdiction over the case or the subject
matter involved in the appeal (Katon vs.
Palanca,G.R. No. 151149, September 7,
2004).
This stage is reached upon the
perfection of appeal but prior to the
transmittal of the original records or
records on appeal (Sec. 9, Rule 41).

RESIDUAL
JURISDICTION
That which would
remain with the
trial
court
notwithstanding
that the trial court
has
lost
jurisdiction
over
the subject matter
of the case.

RESIDUAL
PREROGATIVE
This is the power
of the courts to
dismiss an action
motu propio upon
the
grounds
mentioned
in
Section 1, Rule 9

FUNDAMENTAL PRINCIPLES

LIBERAL CONSTRUCTION
PRINCIPLE

The rules of procedure are tools designed


to facilitate the attainment of justice, and
courts must avoid their strict and rigid
application which would result in
technicalities that tend to frustrate rather
than
promote
substantial
justice.
(Douglas F. Anama vs. Philippine Savings
Bank, G.R. No. 187021, January 25,
2012)
II.

PRINCIPLE
HIERARCHY

OF

JUDICIAL

It means that the lower courts shall


initially decide a case before it is
considered by a higher court. A higher
court will not entertain direct resort to it,
unless the redress desired cannot be
obtained in the appropriate courts (St.
Martin Funeral Home vs. NLRC, G.R No.
130866, September 16, 1998).
Q: May the Supreme Court directly
issue original writs of certiorari,
prohibition, mandamus, quo warranto
and habeas corpus?
A:No. The Principle of Judicial Hierarchy

mandates that the above-mentioned


petitions should be filed with the court of
lower level unless the importance of the
issue involved deserves the action of a
higher court.
While the Supreme Court, the Court of
Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue
original writs of certiorari, prohibition,
mandamus, quo warranto and habeas
corpus, such concurrence does not
accord litigants unrestrained freedom of
choice of court to which filing thereof may
be directed (Santiago vs. Vasquez, G.R
Nos.99289-90,January 27, 1993).
PURPOSE OF THE PRINCIPLE OF
JUDICIAL HIERARCHY
Supreme Court is a court of last resort
and must remain to be so in order for it to
satisfactorily perform its constitutional
functions, thereby allowing it to devote its
time and attention to matters within its
exclusive jurisdiction and preventing the
overcrowding of its docket.
I.

DOCTRINE OF JUDICIAL
STABILITY/DOCTRINE OF NONINTERFERENCE

The doctrine means that Courts of equal


and
coordinate
jurisdiction
cannot
interfere with the orders of each other. A
court is barred from reviewing judgments
of a co-equal court over which it has no
appellate jurisdiction nor power of review.
Q: Is the doctrine of judicial stability
applicable to administrative agency?
A: Yes. The doctrine applies with equal
force to administrative bodies. When the
law provides for an appeal from the
decision of an administrative body to the
SC or CA, it means that such body is co-

equal with the RTC in terms of rank and


stature, and logically beyond the control
of the latter. Citing Sinter Corporation and
Phividec Industrial Authority v. Cagayan
Electric Power and Light Co., Inc., G.R. No.
127371, 25 April 2002.
II.

DOCTRINE OF PRIMARY
JURISDICTION
General rule:
The doctrine of primary jurisdiction
means that court cannot or will not
determine a controversy involving a
question which is within the jurisdiction
of an administrative tribunal prior to
resolving the same, where the question
demands
the
exercise
of
sound
administrative discretion requiring special
knowledge, experience and services in
determining technical or intricate matters
of fact. (Omictin vs. Court of Appeals, G.R.
No. 148004, January 22, 2007)
Exceptions:
1. Where the findings are not supported
by evidence.
2. Where the findings are vitiated by
fraud, imposition, or collusion.
3. Where the procedure which lead to the
factual findings are irregular.
4. When palpable errors are committed.
5. When grave abuse of discretion,
arbitrariness
or
capriciousness
is
manifested.
MEMORANDUM
OF
AGREEMENT
BETWEEN THE DOJ AND OFFICE OF
THE OMBUDSMAN
Effective 29 April 2012, under a
Memorandum of Agreement between the

10
DOJ and the Office of the Ombudsman
(OMB), both offices agreed on the
following for jurisdiction:
1. The OMB has the primary jurisdiction
in
the
conduct
of
preliminary
investigation and inquest proceedings
over complaints for crimes cognizable by
the Sandiganbayan.
2. If, upon the filing of a complaint, the
prosecution office of the DOJ determines
that the same is for a crime falling under
the
exclusive
jurisdiction
of
the
Sandiganbayan, it shall advise the
complainant to file it directly with the
OMB: Provided, That in case a
prosecution office of the DOJ receives a
complaint that is cognizable by the
Sandiganbayan, it shall immediately
endorse the same to the OMB: Provided
further, That in cases where there are
multiple
respondents
in
a
single
complaint and at least one respondent
falls within the jurisdiction of the
Sandiganbayan, the entire records of the
complaint shall be endorsed to the OMB.
3. The OMB and the prosecution offices
of the DOJ shall have concurrent
jurisdiction over complaints for crimes
involving public officers and employees
falling outside the exclusive jurisdiction of
the Sandiganbayan: Provided, That the
office where such a complaint is filed for
preliminary investigation shall acquire
jurisdiction over the complaint to the
exclusion of the other: Provided further,
That the OMB may refer/endorse any
complaint filed before it to any
prosecution office of the DOJ having
jurisdiction over the complaint.
4.
The
Prosecutor
General
or
provincial/city prosecutors shall resolve
cases referred by the OMB to the DOJ for
preliminary investigation without need of
approval from the OMB.

5. In cases where the preliminary


investigation was conducted by the OMB
but referred to the DOJ for prosecution,
reinvestigation, if ordered by the court
shall be conducted by the OMB.
III.

DOCTRINE OF ADHERENCE TO
JURISDICTION OR PRINCIPLE OF
CONTINUITY OF JURISDICTION
The doctrine means that once jurisdiction
has attached to the court, it cannot be
ousted by the happening of subsequent
events, although of a character which
would have prevented jurisdiction from
attaching in the first instance.
The court, once jurisdiction has been
acquired, retains that jurisdiction until
finally disposes of the case (Baritua vs.
Mercader, G.R No. 136048, January 23,
2001).

CIVIL CASES

JURISDICTION OF

Regional Trial Court

Metropolitan Trial Courts,


Municipal Trial Courts and
Municipal Circuit Trial Courts

1. Exclusive
Original

1. Actions or claims involving the ff.:


(PPAS)

1. Actions or claims involving the ff :


(PPAS)

a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money

a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money

whose gross value does not exceed


P400,000
in
Metro
Manila
and
P300,000 outside Metro Manila (Sec.33
B.P 129)

whose gross value exceeds P400,000


in Metro Manila and P300,000 outside
Metro Manila (Sec. B.P 129)

NOTE: Exclusive of costs,litigation,attorneys fees, interest,damages of whatever


kind. (CLAID)
NOTE: The exclusion of the term "damages of whatever kind in determining the
jurisdictional amount applies to cases where the damages are merely incidental
to or consequence of the main cause of action.
If the claim of damages is the main cause of action or one of the causes of action
the amount of such claim shall be considered in determining the jurisdiction of
the court.
2. Actions involving title or possession
of real property.

2. Actions involving Title or possession


of real property.

Assessed Value: Does not EXCEED


P50,000 in Metro Manila, or P20,000
outside Metro Manila, exclusive (CLAID)

Assessed Value: EXCEEDS P50,000 in


Metro Manila, or P20,000 outside
Metro Manila, exclusive of (CLAID).

NOTE: Assessed valuation of property is important if the property involved is real


property.If the property involved is personalproperty, the basis of jurisdiction the
court is the valuation alleged by the plaintiff in the complaint.
NOTE: In cases where the defendant raises the question of ownership and the
question of possession cannot be resolved without deciding on the issue of
ownership, the issue of ownership shall be resolved only to determine the

11

12
issue of possession; (PROVISIONAL DETERMINATION)
3. Cases falling under the 1991 Rules
on Summary Procedure:
a. Forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered;
NOTE: Where attorneys fees are
awarded, the same shall not exceed
P20,000;
b. All other cases, except probate
proceedings, where total claim does
not exceed P200,000.00 in Metro
Manila, or P100,000 outside Metro
Manila, exclusive of interest and costs.
4. Cases falling under the 1991 Rules
on Summary Procedure:
Value of claim does not exceed Two
Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs (Sec. 2
A.M. NO. 08-8-7-SC Feb. 1, 2016 ).
Claim or demand may be:
(a) For money owed under any of the
ff:
1.
2.
3.
4.
5.

Contract
Contract
Contract
Contract
Contract

of
of
of
of
of

Lease;
Loan;
Services;
Sale; or
Mortgage;

(b) For liquidated damages arising


from contracts;
(c) The enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim covered
by this Rule pursuant to Sec. 417 of
Republic Act 7160, otherwise known as

3. Actions the subject matter of which


is
incapable
of
pecuniary
estimation.
Examples: Action for reformation of
contract,
action
for
specific
performance (Civil Procedure,,RIANO,
2014 ,p.154)
4. Cases not within the exclusive
jurisdiction of any court, tribunal ,
person or body exercising judicial or
quasi-judicial
(GENERAL
JURISDICTION)

5. Under Sec.5.2 of the Securities and


Regulations Code to hear and decide:
a. Cases involving devices or schemes
employed by or any acts, of the Board
of officers or partnership, amounting
to fraud and misrepresentation.
b. Controversies arising out of intracorporate or partnership relations;
c. Controversies in the elections or
appointment of directors, trustees,
officers or managers of corporations,
partnerships or associations.
d.
Petitions
of
corporations,
partnerships or associations to be
declared in a state of insolvency.
6.Cases
involving
violations
Intellectual Property Rights;

of

7. Citizen suit (Sec. 41 of the Clean


Air Act).

The Local Government Code of 1991.

2.Delegated

5. Inclusion and exclusion of voters


(B.P. 881,Sec.138)
Cadastral and land registration cases
assigned by the SC where there is:
a) no controversy or opposition over the
land, or
b) there is controversy, the contested
lot valued at not more than P100,000.

3.
Special

Petition for habeas corpus or


application for bail in criminal cases
in the absence of all RTC Judges in a
province or city (BP 129, as amended,
Chapter III, Sec. 35)

A. with RTC:
4.Concurrent
Jurisdiction:

1. Actions or claims involving the ff.:


(PPAS)
a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money
2. Actions involving title or possession
of real property.

SC may designate certain branches of


RTC to handle exclusively the ff.
cases,
not
falling
within
the
jurisdiction of any quasi-judicial
bodies and agencies:
1.Criminal
2. Juvenile and Domestic relations
3. Agrarian
4. Urban Land Reform
5. Special cases as the SC may
determine.(B.P 129 as amended
Sec.23 )
A. with the SC
Actions affecting ambassadors, public
ministers
B. with the SC and CA
1. Petitions for certiorari,
prohibition and mandamus
against lower courts and
bodies; and
2.Petitions for habeas corpus
and quo warranto
3.Petition for continuing
mandamus pursuant to the
Rules of Procedure for
Environmental Cases (A.M. No.
09-6-8-SC, effective 29 April
2010)

13

14
C. with the SC, CA and
Sandiganbayan
Petition for writ of amparo and habeas
data
D. with the Insurance Commisioner
Single claim not exceeding
5,000,000(Insurance Code as
amended by R.A 10607,Sec. 439 )
5. Appellant

Allcases decided by the MTCs in


their respective territorial jurisdiction

JURISDICTIONOFFAMILYCOURTS
In areas where there are no family courts, the ff. cases shall be adjudicated by the RTC.
1. Petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
2. Petitions for adoption of children and the revocation thereof;
Exclusive Original

3. Complaints for annulment of marriage, declaration of


nullity of marriage and those relating to marital status and
property relations of husband and wife or those living together
under different status and agreements, and petitions for
dissolution of conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought
provisions of E.O. No. 209 or the Family Code;

under

the

6. Petitions for declaration of status of children as


abandoned, dependent o neglected children, petitions for
voluntary or involuntary commitment of children; the
suspension, termination, or restoration of parental authority
and other cases cognizable under P.D. No. 603, E.O. No. 56,
(Series of 1986), and other related laws;

7. Petitions for the constitution of the family home; and


8. Cases of domestic violence against women and children,
as defined in sec. 5(k), R.A. 8369, but which do not constitute
criminal offenses subject to criminal prosecution and penalties
9. Cases covered by Juvenile Justice and Welfare Act (RA 9344)

SHARI'A COURT (P.D 1083)


1. Exclusive ORIGINAL
NOTE: The Sharia District
Courts are equivalent to the
RTC in rank which were
established
in
certain
provinces
of
Mindanao
where the Code of Muslim
Personal
Laws
of
the
Philippines is enforced. (P.D.
No. 1083)

1. All cases involving custody, guardianship, legitimacy,


paternity and filiation arising under PD No. 1083;
2. All cases involving disposition, distribution and
settlement of the estate of a deceased Muslim, probate
of wills, issuance of letters of administration or
appointment of administrators or executors regardless of
the nature or the aggregate value of the property;
3. Petitions for declaration of absence and death and
for cancellation and correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of P.D. No.
1083;
4.All actions arising from customary contracts in which
the parties are Muslims, if they have not specified which
law shall govern their relations;
5.All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all auxiliary writs and
processes in aid of its appellate jurisdiction (Art. 143[1]).

2. Concurrent with
EXISTING CIVIL COURTS

1. Petitions by Muslim for the constitution of the family


home, change of name and commitment of insane person
to any asylum;
2. All other personal and real actions not mentioned in
paragraph 1(d) wherein the parties involved are Muslims
except those for forcible entry and unlawful detainer
which shall fall under the exclusive original jurisdiction of
the Municipal Circuit Courts; and
3. All special civil actions for interpleader or declaratory
relief where the parties are Muslims or the property
involved belong exclusively to a Muslim (Art. 143[2]).

15

16

3. APPELLATE

All cases tried in the Sharia Circuit Court within their


territorial jurisdiction.
NOTE: The Sharia District Court shall decide every case
appealed to it on the basis of the evidence and records
transmitted as well as such memoranda, briefs or oral
arguments as the parties may submit (Art. 144[2]).

NOTE: The decisions of the Sharia District Courts whether on appeal from the Sharia
Circuit Courts or not, shall be final. The Supreme Court shall, however, continue to
exercise original and appellate jurisdiction over certain issues as provided by the
Constitution (Art. 145).

Court of Tax Appeals (CTA)


1. Exclusive
ORIGINAL

1. Over all criminal cases arising from violation of NIRC of the TCC
and other laws, part of laws, or special laws administered by the
BIR or the BOC where the principal amount of taxes and fees,
exclusive of charges and penalties claimed is less than P1M or
where there is no specified amount claimed;
2. In tax collection cases involving final and executor assessments of
taxes, fees, charges and penalties where the principal amount of
taxes and fees, exclusive of charges and penalties claimed is less
than P1M tried by the proper MTC, MeTC and RTC.

2. APPELLATE

1. In criminal offenses (1) over appeals from the judgments,


resolutions, or orders of the RTC in tax cases originally decided by
them, in their respective territorial jurisdiction and (2) over
petitions for review of the judgments, resolutions or orders of the
RTC in the exercise of their appellate jurisdiction over tax cases
originally decided by the MeTCs, MTCs,and MCTCs in their
respective jurisdiction;
2. In tax collection cases (1) over appeals from the judgments,
resolutions, or orders of the RTC in tax collection cases originally
decided by them, in their respective territorial jurisdiction and (2)
over petitions for review of the judgments, resolutions or orders of
the RTC in the the exercise of their appellate jurisdiction over tax
collection cases originally decided by the MeTCs, MTCs,and
MCTCs in their respective jurisdiction.
1. Decisions of CIR in cases involving disputed assessment,
refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the
NIRC or other laws administered by the BIR;

Exclusive
original or
appellate to
review by appeal

2. Inaction by the CIR in cases involving disputed assessment,


refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the
NIRC or other laws administered by the BIR where the NIRC or
other applicable law provides s specified period of action, in
which case the inaction shall be deemed an implied denial;
3. Decisions, orders or resolutions of the RTCs in local taxes
originally decided by them in the exercise of their original and
appellate jurisdiction;
4. Decisions of the Commissioner of Customs (1) in cases involving
liability for customs duties, fees or other charges, seizure,
detention or release of property affected, fines, forfeiture, or
other penalties in relation thereto, or (2) other matters arising
under the Customs law, or other laws, part of laws or special
laws administered by BOC;
5. Decisions of the Central Board of Assessment Appeals in the
exercise of appellate jurisdiction over cases involving
assessment and taxation of real property originally decided by
the provincial or city board of assessment appeals;
6. Decision of the Secretary of Finance on custom cases elevated
to him automatically for review from the decisions of the
Commissioner of Customs which are adverse to the government
under section 2315 of the TCC;
7. Decisions of the Secretary of Trade and Industry I the case of
non- agricultural product, commodity or article and the
secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302 of TCC and
safeguard measures under RA **)), where the party may appeal
the decision to impose or not to impose said duties. (RA 9282
and Rule 5, AM 05-11-07-CTA)

SANDIGANBAYAN

17

18
1. Civil cases filed pursuant to E. O. Nos. 1, 2, 14 and 14
-A (PCGG cases for recovery of ill-gotten wealth)
Three conditions:

Sandiganbayan

1. What offenses: offenses must be cognizable by the


Sandiganbayan (Hannah Serana vs. Sandiganbayan,
G.R. No. 162059, January 22, 2008).
2. Offender: offender must be a public officer (Escobal
vs. Garchitorena, G.R. No. 124644, February 5, 2004).
3.How committed: it must be committed in relation to
their public office (Lacson vs. Executive Secretary, G.R.
No. 128096, January 20, 1999).

a. with the SC

1. Petitions for certiorari, prohibition,


corpus, injunction and other ancillary
appellate jurisdiction including quo
cases falling under E.O.s 1, 2, 14, 14
recovery of ill-gotten wealth)

b. with the SC, CA and RTC

2. Petition for writ of amparo and habeas data

2. Concurrent

APPELLATE

mandamus, habeas
writs in aid of its
warranto arising in
-A (PCGG cases for

Final judgments, resolutions or orders of RTC whether in


the exercise of their original or appellate jurisdiction (RA
8249) over crimes and civil cases falling within the original
exclusive jurisdiction of the Sandiganbayan but which were
committed by public officers below SG 27.

COURT OF APPEALS (CA)


1. Exclusive
ORIGINAL

2. Concurrent
a. with the SC

Actions for annulment of judgments of RTC

1. Petitions for certiorari, prohibition or mandamus against


RTC, Civil Service Commission, Central Board of
Assessment Appeals, Other quasi-judicial agencies & NLRC
2. Petition for Writ of Kalikasan pursuant to the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

b. with SC and RTC

1. Petitions for certiorari, prohibition or mandamus against


courts of the first level and other bodies; and
2. Petitions for Habeas Corpus and Quo Warranto
3. Petition for continuing mandamus pursuant to the Rules
of Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

c. with SC,
Sandiganbayan and RTC

1. Petition for Writ of Amparo (Sec. 3, Rule on the Writ of


Amparo); and
2. Petition for a Writ of Habeas Data (Sec. 3, Rule on the Writ
of Habeas Data)

APPELLATE

1. Ordinary Appeals from RTC, except in cases exclusively


appealable to the SC, Family Courts and Special Commercial
Courts
2. Appeal by Petition for Review from Civil Service
Commission, SEC, Land Registration Authority, Social
Security Commission, Office of the President and any other
quasi-judicial agency, instrumentality, board or commission
in the exercise of its quasi-judicial functions
3. Petitions for Review from RTC in cases appealed thereto
from the lower courts

SUPREME COURT
1. Exclusive ORIGINAL

2. Concurrent
a. with the CA

Petitions for certiorari, prohibition or mandamus against CA,


COMELEC, COA, CTA and Sandiganbayan.
1. Petitions for certiorari, prohibition or mandamus against
RTC, Civil Service Commission, Central Board of
Assessment Appeals, Other quasi- judicial agencies and
NLRC
2. Petition for Writ of Kalikasan pursuant to the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

19

20

b. with the CA and RTC

1. Petitions for certiorari, prohibition or mandamus against


courts of the first level and other bodies; and
2. Petitions for Habeas Corpus and Quo Warranto
3. Petition for continuing mandamus pursuant to the Rules
of Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

c. with RTC
d. with CA, RTC and
Sandiganbayan

APPELLATE

Actions affecting ambassadors, other public ministers and


consuls
1. Petition for Writ of Amparo; and
2. Petition for a Writ of Habeas Data
1. Petitions for Review on Certiorari against the CA,
Sandiganbayan, CTA en banc, Final judgment or order in
a Writ of Amparo or Habeas Data case and RTC in cases
involving:
2. Constitutionality or validity of a treaty, international or
executive
agreement,
law,
presidential
decree,
proclamation, order, instruction, ordinance or regulation
3. Legality of a tax, impost, assessment, toll or a penalty in
relation thereto
4. Jurisdiction of a lower court,
5. Pure error or question of law.

INCAPABLE PECUNIARY ESTIMATION


Q: What is meant by a civil action
where subject of litigation is incapable
of pecuniary estimation?
A: It is an action incapable of pecuniary
estimation is one where the primary relief
sought is not a claim for sum of money or
assertion of title to or possession of
personal or real property, but some other
primary relief which cannot be valued in
terms of money (Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure,

Riguera, 2nd ed., 2013) .


Examples of actions where the subject
of litigation is incapable of pecuniary
estimation:
1. Specific performance
2. Rescission or annulment of
contract
3. Injunction
4. Declaratory Relief

5. Reformation of contract
6. Action for revival of judgment
7. Citizen suit (Sec. 41, Clean Air Act
of 1999)
8. Support
9. Actions questioning the validity of
a mortgage
10. Annulling a deed of sale or
conveyance
BARANGAY CONCILIATION
Q: What disputes are required to
undergo amicable settlement before
the lupon of a barangay?
A: Disputes between parties actually
residing in the same city or municipality.
EXCEPT: (GPO-NBD-PCE-ACW)
1. Where one party is the government, or
any subdivision or instrumentality
thereof; where the government is just
one of three or more parties, referral to
the lupon is still mandatory (Gegare v.
CAG.R. No.83907, September 13,
1989) .
2. Where one party is a public officer or
employee, and the dispute relates to
the performance of his official
functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000;
4. Offenses where there is no private
offended party;
5. Where

the

dispute

involves

real

properties located in different cities or


municipalities unless the parties
thereto
agree
to
submit
their
differences to amicable settlement by
an appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and
the parties thereto agree to submit
their differences to amicable settlement
by an appropriate lupon;
7. Such other classes of disputes which
the President may determine in the
interest of justice or upon the
recommendation of the Sec. of Justice;
(Sec. 408, R.A. 7160)
8. Where the dispute arises from the
Comprehensive
Agrarian
Reform
Law(Secs. 46 & 47, RA. Np. 6657)
9. Labor disputes or controversies arising
from
employer-employee
relations
(Montoya vs. Escayo, 171 SCRA 442)
10. An action for annulment of a
compromise judgment. (Sanchez v.
Tupaz, G.R. No. 76690 February 29,
1988)
Reason: It is immediately executory
and accordingly, beyond the authority
of the Barangay Court to change or
modify. (Sanchez v. Tupaz,G.R.No.
76690 February 29, 1988)
11. Any
complaint
by
or
against
corporations, partnership or juridical
entities (Vda. De Borromeo v. Pogoy,
126 SCRA 217, 1983)
12. Proceedings where relief is sought
under R.A. No. 9262 or the AntiViolence against Women and their
Children Act (Sec. 33, R.A.No. 9262)

21

22

APPLICABLE TO NATURAL PERSONS


Referral of a dispute to the Lupon is
required only in cases involving natural
persons, and not where any of the parties
is a juridical person such as a
corporation, partnership, corporation
sole, testate or intestate, estate, etc. (Vda.
DeBorromeo v. Pogoy, G.R. No. L-63277.
November 29, 1983)
As cited in the case Sanchez v. Tupaz,
referral to the Lupon is compulsory (as
ruled in the cited case of Morato vs. Go,
125 SCRA 444), [1983] and noncompliance of the same could affect the
sufficiency of the cause of action and
make the complaint vulnerable to
dismissal on the ground of lack of cause
of action or prematurity (Peregrina vs.
Panis, 133 SCRA 75).

Q: What are the instances where


parties may go directly to court
without the need of prior barangay
conciliation?
A: The following are the instances:
1.

Where the
detention

accused

is

under

2. Where a person has otherwise


been
deprived
of
personal
liberty calling for habeas corpus
proceedings;
3. Where actions are coupled with
provisional remedies such as
preliminary
injunction,
attachment, replevin and support
pendent lite; and

4. Where the action may otherwise


be barred by the statute of
limitations. (Section 412, LGC)
Venue of the barangay conciliation
1. Disputes between or among persons
actually residing in the same barangay
shall
be
brought
for
amicable
settlement before the Lupon of said
barangay.
2.Actual residents of different barangays
within the same city or municipality
shall be brought in the barangay where
the respondent or any of the
respondents actually resides, at the
election of the complainant
3. All disputes which involved real
property or any interest therein shall
be brought in the barangay where the
real property or any part thereof is
situated.
4. Disputes arising at the workplace
where the contending parties are
employed or at the institution where
the contending parties are enrolled to
study, the barangay where such
workplace or institution is located.
(Sec. 409, LGC).
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise the same shall be
deemed waived.
The parties may, at any stage of the
proceedings, agree in writing that they
shall abide by the arbitration award of the
lupon chairman or the pangkat.
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment of a court upon the
expiration of 10 days from the date

thereof, unless repudiation of the


settlement has been made or a petition to
nullify the award has been filed before the
proper MTC within the said 10-day
period. (Sec. 416, LGC)

(Flores
v.
Mallare-Philips,
September24, 1986).

L-66620,

The amicable settlement or arbitration


award may be enforced by execution by
the lupon within 6 months from the date
of the settlement. It is not the sheriff or
the court officer who enforces the same
but the Lupon itself. After such time, the
settlement may be enforced by action in
the appropriate MTC. (Sec. 417, LGC)
Q: What is the totality rule?
A: Where there are several claims or
causes of action between the same or
different parties embodied in the same
complaint, the amount of the demand
shall be the totality of the claims in all
causes of action, irrespective of whether
the causes of action arose out of the same
or different transactions.
NOTE: The causes of action in favor of
two ormore plaintiffs or against two or
more defendants should arise out of the
same transaction or series of transactions
and there should be a common question
of law or fact as provided in Sec. 6, Rule 3

CIVIL PROCEDURE

RULE 1
GENERAL PROVISIONS

The Rules of Court (effective July 1, 1997)


shall apply in all the courts, except as
otherwise provided by the Supreme Court
(Rule 1, Sec. 2).

IN WHAT CASES NOT APPLICABLE


These rules do not apply to:
23
24
25
26

1.Election cases;
2.Land registration;
3.Cadastral;
4.Naturalization;

23

24
27 5.Insolvency proceedings; and
28 6.Other cases not herein
provided for (Rule 1, Sec. 4)
These rules will be applied in the
aforementioned cases by analogy or in a
suppletory character and whenever
practicable or convenient.

Q: What is an action?
A: Action is the legal and formal demand
of one's right from another person made
and insisted upon in a court of justice
(The Bar Lecture Series, VOL.I, Civil
Procedure, RIANO, 2014,p.212).
COMMENCEMENT OF ACTION
(Rule 1, Sec. 5)
A civil action is commenced by:
Filing of the original complaint in court
and must be accompanied with the
payment of correct docket fees.

Q: When is
commenced?

an

action

deemed

A: A civil action is deemed commenced by


the filing of the original complaint in
court.
If an additional defendant is impleaded
in a later pleading:
The action is commenced with regard to
him on the date of filing of such later
pleading, irrespective of whether the
motion for its admission, if necessary, is
denied by the court.
Q: When is the motion for admission
necessary?

A: Only in cases where the amended


complaint is filed after the answer to the
original complaint.

PAYMENT OF DOCKET FEES


General rule: Docket fees MUST be
paidat thecommencement of the action.
Exception: Docket fees need NOT be paid
at thetime of filing of the complaint and
may be considered a lien on the judgment
in the following instances: (ATACHI)
1. The damages or claim arose after
the
filing
of
the
complaint/initiatory pleading or if
the court awards damages not
prayed for in the complaint
(Original Devt & Construction
Corp.v. CA, 202 SCRA 75;, Sec.2,
Rule 141);
2. Indigent
141);

litigant(Sec.

19,

Rule

3. Failure of the adverse party to


timely
raise
the
issue
of
nonpayment of the docket fee
(National Steel Corp. v. CA, G.R.
No. 123215, February 2, 1999);
4. Civil action instituted with the
criminal action where the moral,
exemplary,
nominal,
and
temperate
damages
are
not
specified in the complaint or
information (Sec. 1, Rule 141);
5. Petition for Writ of Amparo shall
be exempt from the payment of
docket and other filing fees (Sec. 1,
Rule on the Writ of Amparo).

6. Indigent petitioner for writ of


habeas data is exempt from
payment of docket or other lawful
fees. (Section 5, Rule on the Writ
ofHabeas Data A.M. No. 08-1-16
SC)
PRINCIPLES FOR PAYMENT OF
DOCKET FEES
23
24 1. A court acquires jurisdiction over
any case only upon the payment of the
prescribed docket fee, and in order to
curb
the
unethical
practice
of
misleading the docket clerk in the
assessment of the correct filing fee, the
SC laid down the rule that henceforth
all complaints, petitions, answers and
other similar pleadings should specify
the amount of damages beingprayed for
not only in thebody of thepleading
but also in the prayer therein, andsaid
damages shall be the basis for
assessing the amount of the filing fees.
(SC Circular No.7, March 24, 1988;
Manchester Development v. CA, No. L75919, May 7, 1987).
25 2.It is not simply the filing of the
complaint or appropriate initiatory
pleading, but the payment of the
prescribed docket fee that vests a trial
court with jurisdiction over the
subject-matter or nature of the action.
Where the filing of the initiatory
pleading is not accompanied by
payment of docket fee, the court may
allow payment of the fee within a
reasonable time but in no case beyond
the
applicable
prescriptive
or
reglementary period.
26 3.The same rule applies to permissive
counterclaims, third-party claims and
similar pleadings, which shall not be
considered filed until and unless the
filing fee prescribed therefor is paid.

4.Where the trial court acquires


jurisdiction over a claim by the filing of
the appropriate pleading and payment
of the prescribed filing fee but,
subsequently, the judgment awards
claim not specified in the pleading, or if
specified, the same has been left for
determination by the court, the
additional filing fee therefor shall
constitute a lien on the judgment (Sun
Insurance Office, Ltd., v.Asuncion, G.R.
Nos. 79937-38, February 13, 1989).
23 5.Payment of filing fees is also required
in cases of appeal (Sec. 5, Rule 40; Sec.
4, Rule 41; Sec.3, Rule 45).
6. Plainly, while the payment of the
prescribed docket fee is a jurisdictional
requirement, nonpayment of which at
the
time
of
filing
does
not
automatically cause the dismissal of
the case for as long as the fee is paid
within the applicable prescriptive or
reglementary period; more so when the
party
involved
demonstrates
a
willingness to abide by the rules
prescribing such payment. (Sps. Go v.
Tong, G.R. 151942, Nov. 27,2003)
7.An action seeking for the execution of
a deed of assignment of shares of stock
is an action for recovery of personal
property. The payment of docket fees
should be based on the value of the
shares of stock and the amount of
damages he seeks to recover. (NSC v.
Court of Appeals, G.R.No. 123215.
February 2, 1999)
CLASSIFICATIONS OF ACTIONS

IN GENERAL
1. Ordinary Civil Actions

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1. It is one by which a party sues
another for:
a. The
enforcement
or
protection of a right, or
b. The prevention or redress
of a wrong
2. It may be ordinary or special
3. It is governed by ordinary rules.
2. Special Civil Actions
It is one which is also governed by the
rules of ordinary civil actions, but
subject
to
the
specific
rules
prescribed for such particular special
civil action.
SPECIAL CIVIL ACTIONS
COMMENCED/ INITIATED BY
COMPLAINTS
(FUF PIE)
1) Interpleader
2) Expropriation
3) Foreclosure of
Real Estate
Mortgage 4)
Partition
5) Forcible Entry /
Unlawful Detainer.

PETITIONS
(DQ ICE CREFP)
1) Declaratory Relief
and Similar Remedies
2) Review of
Adjudication of the
Constitutional
Commissions (COA
and COMELEC)
3) Certiorari,
prohibition and
mandamus
4) Ejectment
5) Expropriation
6) Partition
7) Foreclosure
8) Interpleader
9) Quo Warranto
10)Contempt.

NOTE: The venue of special civil actions


is governed by the general rules on venue,
except as otherwise indicated in the
particular rule for said special civil action
(Regalado).

3. Criminal Actions
It is one by which a party seeks to
establish for an act or omission
punishable by law.
4. Special Proceeding
1. It is a remedy by which a party
seeks to establish a status, a
right or a particular facts.
2. It is also governed by ordinary
rules but subject to specific
rules prescribed (R62-R71).
Ordinary Civil
Action
1. An ordinary suit in
court, by which one
party
prosecutes
another
for
the
enforcement
or
protection of a right,
or the prevention or
redress of a wrong.

Special Proceedings
1. An application or a
petition to establish
the status or a right
of a party or a
particular fact.

2. Governed by Rules
2-71 of ROC

2. Governed by Rules
72-109 of ROC and
other special laws.

3. Initiated by:
a. an action or
b. complaint;
requires the filing of
formal pleadings

3. Initiated by:
a. application or
b. petition or
c.
by
filing
motion.

4.
Two
adverse
Plaintiff
Defendant.

4.
definite
party/petitioner but
no definite adverse
party
(in
rem
proceeding)
5. Oppositor files an
Opposition.

definite
partiesand

5. Defendant files an
Answer.
6. A right is alleged to
exist and have been
violated

6. A right exists but


violation thereof is not
necessary since what
is sought is the
establishment of a

right,
status,
particular fact
7. Court of General
Jurisdiction

or

7. Court of Limited
Jurisdiction

ACTIONS ACCORDING TO SUBJECT


MATTER
1. Personal Actions
1. Actions founded on privity of
contract or for the enforcement or
resolution of a contract, or for
recovery o personal property (Feria
Noche, Civil Procedure Annotated,
Vol.I).
2. One which does NOT affect title
to or possession of real property or
interest therein (Riguera, PrimerReviewer on Remedial Law, Vol.I,
2013).
2. Real Actions
Actions affecting title to or the recovery
of possession of real property, or an
interest therein, or forcible entry and
detainer actions.
To be real action, it is not enough that the
action must deal with real property.
It is important that the matter in
litigation must also involve any of the
following issues:
1. Title to
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage, or
6. Any interest in real property (Riano)
3. Mixed Action
Pertain in some degree to both real and
personal, and reducible to neither of

them.
REAL ACTION

PERSONAL
ACTION

A real action is
local,
i.e.,
its
venue
depends
upon the location
of
the
property
involved
in
the
litigation

A personal action is
transitory, i.e., its
venue
depends
upon the residence
of the plaintiff or
the defendant at
the option of the
plaintiff (Riano).

Q: What is the importance of


distinguishing between a real action
and a personal action?
A: To determine the venue of the action
and the court having subject matter
jurisdiction thereof.
The venue for real actions is the proper
court which has jurisdiction over the area
wherein the real property involved, or a
portion thereof, is situated. (Section 1
R4).
On the other hand, venue of personal
actions lies in the place where the
plaintiff or any of the principal plaintiffs
resides or where the defendant or any of
the principal defendants resides at the
election of the plaintiffs. (Section 2 Rule
4)
Jurisdiction over real actions depends
upon the assessed value of the real
property involved. Jurisdiction over
personal actions depends upon the
amount of the claim or demand provided
that if the subject of the litigation is
incapable
of
pecuniary
estimation,
jurisdiction is vested in the RTC. (PrimerReviewer on Remedial Law, Vol.I, Civil

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It is a proceeding where an individual
is named as defendant and the
purpose of the proceeding is to
subject his interest therein to the
obligation or lien burdening the
property.

Procedure, Riguera, 2nded., 2015, page 3)


ACTIONS ACCORDING TO VENUE
1. Local Actions
Actions which can only be
instituted in a particular place.

Ex. Quieting of title where the object


is in rem (real property) and the
subject is in personam (defendant).
The judgment entered in this
proceeding is conclusive only between
the parties (Feria Noche, Civil
Precdure, Vol.I).

2. Transitory Actions
The venue of which is generally
dependent upon the residence of
the parties regardless of where the
cause of action arise.
ACTIONS AS TO THE BINDING EFFECT
OF RELIEF SOUGHT
1. Actions In Personam
One which is directed against a
particular person and the relief
sought is binding upon such person.
Ex. Action for sum of money or for
specific performance.
2. Actions In Rem
One which is not directed against a
particular person but on the thing or
res itself and the relief sought is
binding upon the whole world.
The thing or res may be personal or
real property or it may be a status,
right or a particular fact (Riguera,
Primer-Reviewer on Remedial Law,
2009).
The object is to bar indifferently all
who might be minded to make any
objection against the right sought to
be enforced, hence the judgment
therein is binding theoretically upon
the whole world.

Whether a proceeding is in rem, or in


personam or quasi in rem it is
determined by its nature and purpose
(Yu v. Pacleb, GR. No. 172172, Feb. 24
2009).
In Personam

Quasi In Rem

1.
Action
against a
person on
the basis of
his personal
liability

2.
Jurisdiction
is over the
person

Action
against the
thing or
property
itself

Jurisdiction
is over the
res through
service of
summons
by:
a.
publication,
or

Action to subject
a partys interest
to the obligation
or lien burdening
the property

Jurisdiction over
the party is not
necessary; it is
enough that due
process is
observed

b. posting of
notices.

Ex. Expropriation (Regalado).


3. Quasi In Rem

In Rem

3.

It is

Summons is

Summons is
served
either:
a. personally,
or
b.
substituted
service

4. An
individual is
named as
defendant

sufficient
that
summons is
served by:
a.
publication,
and/or
b. posting of
notices

served
extraterritorially
if defendant is an
absent non
resident;

4. No
named
defendant

4. An individual
is named as
defendant

5.
Judgment is
conclusive
against the
whole world

5.
Judgment is
conclusive
between the
parties

in case of an
absent resident,
same as above or
by substituted
service

RULE 2
CAUSE OF ACTION
Cause of Action.
It is an act or omission by which a party
violates the right of another (Rule 2, Sec.
2 ROC).
Q:A contracted the services of B to
overhaul two aircrafts engines. Due to its
technical capability, B contracted the
services of C to do the work. A accepted
the overhauled engines and released the
amount to B but C was not paid for the
remaining balances despite the demands.
C filed a complaint before the RTC against
B and A to pay the balance plus interest.
CA dismissed the case against A because
the complaint does not state a cause of
action against A but granted its complaint
against B. Does C failed to sufficiently
state a cause of action?

A: Yes, according to the SC, cause of


action is defined as an act or omission by
which a party violates a right of another.
In pursuing that cause, a plaintiff must
first plead in the complaint a concise
statement of the ultimate or essential
facts constituting the cause of action.
The standard requires that every
pleading shall contain in a methodical
and logical form, a plain, concise and
direct statement of the ultimate facts on
which the party pleading relies for his
claim or defense, as the case may be,
omitting
the
statement
of
mere
evidentiary facts. [Magellan Aerospace
Corporation vs. Philippine Air Force,
Feb. 24, 2016]
Elements: (L-A- D)
1. A legal right of the plaintiff
2. A correlative duty of the defendant
to respect plaintiffs right
3. An act or omission of the defendant
in violation of the plaintiffs right
with
consequential
injury
or
damage to the plaintiff for which he
may maintain an action for
recovery or other relief (Relucio v
Lopez, GR No. 138479, June 16
2002).
Right of Action
The right to commence and prosecute an
action to obtain the relief sought.
Elements: (C-P-P)
1. Existence of the cause of action
2. Performance
of
all
conditions
precedent
3. The action must be instituted by the
proper party
Cause of Action

Right of Action

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30
Act or mission by
which a party violates
the right of another
The delict or wrong
committed
by
the
defendant

The reason
action.

for the

The formal statement


of the operative facts
that gives rise to
remedial right
A matter of procedure
and depends on the
pleadings filed by the
parties
NOT
affected
by
affirmative defenses

Right to commence andA: The substantive right on the part of


prosecute an action tothe Plaintiff to sue for redress.
obtain the relief sought
CONDITIONS PRECEDENT TO FILING A
The right of the plaintiff
COMPLAINT
to institute the action as
a consequence of that 1. Barangay Conciliation (Secs. 399delict or wrong
422, Local Government Code);
2. Intra-Family Dispute
The remedy or means 3. Investigation by a fiscal is a
afforded
or
the
prerequisite
to
annulment
of
consequent relief.
marriage when defendant defaults
(Art. 151, Family Code);
The remedial right given 4. No suit shall be filed between
to a person because of
members of the same family unless
the occurrence of the
it should appear that earnest efforts
alleged facts
at compromise have been made but
the same have failed (Art. 2035, Civil
A matter of right and
Code)
depends on substantive 5. Citizens Suit (Sec. 41, Clean Air
law
Act);
6. Doctrine
of
Exhaustion
of
Administrative Remedies (DEAR);
Affected by Affirmative 7.Doctrine of Primary Jurisdiction;
defenses
8.Referral to Arbitration (Sec. 41, ADR
Act of 2004);
9.Payment of Docket Fees (Sec. 1,2, &
21 (a), Rule 141; Sec. 1, Rule 111).

Q: Plaintiff lent P500,000 to defendant.


The loan is secured by a real estate
morgage executed by X in favor of the
Plaintiff. The defendant failed to pay the
loan on the due date despite demand
from Plaintiff. (Riguera, Primer-Reviewer
on Remedial Law, Vol.I, 2015,page 69)

If conditions precedent are not complied


with, the remedy is to move for its
dismissal pursuant to Rule 16, Sec. 1 (j).

What is the cause of action of the


Plaintiff?

CAUSE OF ACTION IN PROCEEDINGS


FOR DECLARATORY RELIEF

A: The cause of action is the defendant's


non-payment of the loan on due date.
Q: What is the right of action of the
Plaintiff?

EFFECT OF FAILURE TO COMPLY


WITH CONDITIONS PRECEDENT

The concept and meaning of the term


cause of action in proceedings for
declaratory relief vis-- vis an ordinary
civil action, is BROADENED. It is not, as
in ordinary civil action, the wrong or
delict by which the plaintiffs rights are
violated, but it is extended to a mere
denial, refusal or challenge raising at least

an uncertainty or insecurity which is


injurious to plaintiffs rights (Multi-Realty
Devt
Corp.
v.
Makati
Tuscany
Condominium Corp., G.R. No. 146726,
June 16, 2006 citing Moran, Vol. 3, 1970
Ed.).
Rationale: Courts should be allowed to
act, not only when the harm is actually
done and rights jeopardized by physical
wrongs or physical attack upon existing
legal relation, but also when challenge,
refusal, dispute, or denial thereof is made
amounting to a live controversy (Riguera,
Manuel R. Primer-Reviewer on Remedial
Law, Volume I, Civil Procedure, 2009).
EFFECT OF FAILURE TO STATE A
CAUSE OF ACTION
The remedy of the defendant is to move
for its dismissal under Rule 16, Sec.1 (g)
on the ground that the pleading asserting
the claim states no cause of action.
Test of Sufficiency of a Cause of Action
Whether or not admitting the facts
alleged, the court could render a valid
judgment upon the same in accordance
with the prayer in complaint (Misamis
Occidental II Cooperative Inc. v David, G.R.
No. 129928, August 25, 2005).

ONE SUIT FOR A SINGLE CAUSE OF


ACTION (SEC. 3)
A party may not institute more than one
suit for a single cause of action.
Splitting a Single Cause of Action and
Its Effects.(Rule 2, Sec. 4.)
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.
The act of dividing a single cause of
action, claim or demand into two or more
parts and bringing the suit for one of
such parts only, intending to reserve the
rest for another separate action is the
prohibited act of splitting a single cause
of action (Regalado).
Rationale:
1. Avoid multiplicity of suits
2. Protect
the
defendant
from
unnecessary
vexation
and
harassment
3. Avoid the costs and expenses
incident to numerous suits

Limitations of the Rule:


1. Applies only to where the action les
between the same parties.
2. Where the nature of relief is
cognizable by different tribunals,
the rule is not violated.
Example: An action to establish
plaintiffs filiation as illegitimate
children cognizable by the JDRC
and of a separate action for partition
of the estate of their deceased father
cognizable by the regular courts.
General Rules:
1. A contract to do several things at
several times is divisible, and
2. A judgment for a single breach of a
continuing contract is not a bar to a
suit for subsequent breaches.
Exception:
Where there is a complete and total
breach of a continuous contract for a

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32
term of years, the recovery of a judgment
for damages by reason of the breach is a
bar to another action on the same
contract for and on account of the
continuous breach (Blossom & Co. v
Manila Gas Corp., GR No. L-32958, Nov 8
1930).
Effects:
The remedy of the defendant is to move
for its dismissal under Rule 16 when a
single cause of action is split on the
ground that:
1. There is another action pending
between the same parties for the
same cause, or litis pendentia
2. If the first action has already been
finally terminated on the ground of
res judicata

Q: What is the Principle of Anticipatory


Breach?
A: An unqualified and positive refusal to
perform
a
contract,
though
the
performance thereof is not yet due, may, if
the renunciation goes to the whole
contract, be treated as a complete breach
which will entitle the injured party to
bring his action at once (Blossom & Co. v
Manila Gas Corp., GR No. L-32958, Nov 8
1930; Danfoss Inc. v Continental Cement
Corp, GR No. 143788, Sept. 9 2005).
Q: Single Injury, Single Cause of Action
Theory?
A: The singleness of a cause of action lies
in the singleness of the delict or wrong
violating the rights of one person.
Nevertheless, if only one injury resulted
from several wrongful acts, only one
cause of action arises (Joseph v Bautista,
GR No. 41423, Feb 23 1989).
Joinder of Causes of Action

( Rule 2, Sec. 5)
The assertion in the alternative or
otherwise, of as many causes of action as
a party may have against another in one
pleading alone is valid.
Q: What are the rules governing joinder
of causes of action?
A: (JISM)
1. The party joining the causes of
action shall comply with the rules
on joinder of parties under Section
6, Rule 3.
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
jurisdiction, the joinder may be
allowed in the RTC, provided that:
a. One of the causes of action
falls within the jurisdiction of
the RTC; AND
b. The venue lies therein
4. Where the claims in all the causes
of action are principally for
recovery of money, the aggregate
amount claimed shall be the rest of
jurisdiction (Totality Rule, Sec. 33
(1), BP 129).
Elements for Joinder of Parties:
1. There must be a right to relief in
respect to or arising from the same
transaction
or
series
of
transactions

2. There is a question of fact or law


common to all the plaintiffs or
defendants
3. Such joinder is not otherwise
proscribed by the provisions of the
Rules on jurisdiction and venue.
(Rule 3, Sec. 6)
Q: Is joinder of causes
mandatory or permissive?

of

action

A: The rule on joinder of causes of action


is purely permissive and the plaintiff can
always file separate actions for each cause
of action (Baldovir v Sarte, 36 Phil 550).

PARTIES TO CIVIL ACTIONS


Q: Who may be parties in a civil
action?
A: Only natural or juridical person or
entities authorized by law may be parties
in a civil action. (Rule 3, Sec.1)
PLAINTIFF
refers
to
the
claiming
party,
counter-claimant,
cross-claimant, or
third (fourth, etc.)
party plaintiff.

The rule on permissive joinder of causes


of action is subject to the rules regarding
jurisdiction, venue and joinder of parties.
Q: When is joinder of causes of action
compulsory?
A: When the joinder refers to joinder of
indispensable
parties,
joinder
is
compulsory (Rule 7, Sec. 3)
The provision allowing joinder of causes of
action which pertains to different
jurisdiction under Rule 2, Sec.5 (c)
applies only if joinder is in the RTC.
Misjoinder of Causes of Action
(Rule 2, Sec. 6)
Two or more causes of action are joined in
one complaint when they should not have
been joined.
Misjoinder of causes of action is NOT a
ground for dismissal of an action. A
misjoined cause of action may on motion
of a party or on the initiative of the court
be severed and proceeded with separately.

DEFENDANT
refers
to
the
original defending
party, defendant in
a
counter-claim,
cross-defendant,
or third (fourth,
etc.)
party
defendant.

Q: What are the requisites for a person


to be a party to a civil action?
A: Requisites:
1. Must be:
a. A natural or juridical person,
or
b. An entity authorized by law
2. Must have a legal capacity to sue
3. Must be a real party in interest.

Entities authorized by law


to be parties to a suit:
1. A corporation by estoppel.
2. A contract of partnership having a
capital of P3,000 or more but fails to
comply
with
the
registration
requirements is nevertheless liable
as a partnership to third parties
(Art.1772 in relation to Art.1768 of
New Civil Code).

RULE 3

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3. The estate of a deceased person
(Limjoco v Intestate Estate of
Fragante, 8 Phil 776).
4. A legitimate labor organization (Art.
242 (e) of Labor Code).
5. The Roman Catholic Church and
the archbishop or diocese to which
they belong (Barlin v Ramirez, 7 Phil
47).
6. A dissolved corporation may prosecute
and defend suits by or against it
provided that the suits:
a. Occur within 3 years after its
dissolution, and
b. The suits are in connection with
the settlement and closure of its
affairs (Sec 122 of Corporation
Code).
7. A political party incorporated under
Act 1459 (now BP 68, Corporation
Code).
Under Sec.15 of this Rule, an entity,
which is not registered as a juridical
person
and
without
requisite
personality required of parties to a
suit, may at least be sued as a
defendant in the first instance so that
the members thereof shall be
disclosed by being required to be
individually named in the answer.
This exception is dedicated by the
need to identify its members since it is
from them that the plaintiff may seek
relief on his claim (Regalado).
As to properties of the Roman
Catholic Church, the Archbishop of
the diocese to which they belong may
be a party (Versoza v Fernandez, GR
No. L-25254, Nov 22 1926).
REAL PARTIES IN INTEREST (RPII),
INDISPENSABLE PARTIES,
REPRESENTATIVES,
NECESSARY PARTIES,

INDIGENT PARTIES,
ALTERNATIVE DEFENDANTS
Real Party In Interest (RPII)
(Rule 3, Sec.2)
The party who stands to be benefited or
injured by the judgment in the suit or the
party entitled to the avails of the suit.
To be a real party in interest, the interest
must be real, which is a present
substantial interest as distinguished from
a mere expectancy or a future, contingent
subordinate or consequential interest
(Fortich v Corona, 289 SCRA 624).
It is an interest that is material and direct
as distinguished from a mere incidental
interest in the question (Samaniego v
Aguila, 334 SCRA 438).
General Rule: Every action must be
prosecuted and defended in the name of
the real party in interest.
Exception: An exception to the rule that
every action must be prosecuted or
defended in the name of the real party in
interest is in the case of representatives
as parties under Rule 3, Sec,3.
Lack of Legal
Capacity to Sue
Refers to plaintiffs
general disability
to sue on account
of
minority,
insanity, lack of
juridical
personality
and
other
similar
disqualifications

Lack of Legal
Personality to Sue

Plaintiff is not the


real
party
in
interest.

A ground for a
motion to dismiss
pursuant
to

A ground for a
motion to dismiss
on the ground that

Rule16, Sec. 1(d).

the
complaint
states no cause of
action (Rule 16, Sec
1 [g]).

Note: The rule does not require that a


civil action be prosecuted by the real
party in interest. What Rule 3, Sec. 2
requires is that a civil action be
prosecuted in the name of but not
necessarily by the real party in interest.
Hence, an action is allowed to be
prosecuted
or
defended
by
a
representative or someone acting in a
fiduciary capacity but the beneficiary
shall be included in the title of the case
and shall be deemed to be the real party
in interest (Riguera, 2015)
CLASSIFICATION OF PARTIES IN
INTEREST:
1. Representative parties - someone
acting in a fiduciary capacity (i.e. trustees
of an express trust, guardians, executors
or administrators). In this case, the rule
requires that the name of the beneficiary
shall be included in the title of the case
and shall be deemed as the real party in
interest (Sec. 3).
2.Nominal / Pro forma parties - those
required under the rules to be joined as
co-parties in suits by or against another
party as may be provided by the
applicable substantive law or procedural
rule (i.e. spouses; Sec 4).
3. Indispensable parties - those without
whom no final determination can be had
of an action; they must be joined under
all conditions (Rule 3,Sec.7).

the court that the action should be


dismissed (Sepulveda, Sr. v. Pelaez, G.R.
No. 152195, 31 January 2005).
The court cannot proceed without their
presence. Any judgment rendered by the
court would be null and void.
Examples of indispensable parties:
1. In a partition suit, all the co-owners
are indispensable parties (Salvador v
CA, GR No. 109910, April 5 1995)
2. Action for recovery of land against
defendant, who is a tenant of a thirdparty who claims ownership, the
third part is an indispensable party.
3. Action for rescission filed by a
creditor to annul a fraudulent sale,
the vendor is an indispensable party.
4. Petition for certiorari and prohibition
filed by the Freedom from Debt
Coalition against MWSS seeking to
nullify the rate increases granted by
the
latter
to
concessionaries
Maynilad Water and Manila Water,
the
concessionaries
are
indispensable parties (Freedom From
Debt Coalition v MWSS, GR No.
173044, Dec 10 2007).
5. Petition for cancellation or correction
of entries in the civil registry, the
local registrar is an indispensable
party.
Note: The presence of all indispensable
parties is a condition sine qua non for the
exercise of judicial power. It is precisely
when an indispensable party is not before
the court that the action should be
dismissed.

The presence of all indispensable parties


is a condition sine qua non for the
exercise of judicial power. It is precisely
when an indispensable party is not before

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36
Q: What is the effect of failure to
include Indispensable Parties?
A: The court cannot proceed without their
presence. Any judgment rendered by the
court would be null and void.

parties, or for a complete determination or


settlement of the claim subject of the
action; may or may not be joined.
Indispensable
Party

No
final
determination may
be had of an
action
if
an
indispensable
party
is
not
impleaded

Q: What are the the remedies in case


RPII is Not Impleaded?
A: 1. The pleadings or the complaint may
be amended to include the RPII.
2. A motion to dismiss may be filed on
the ground that the complaint states no
cause of action (Rule 16, Sec.1(g) ROC;
Regalado, 2010).
In Oposa v Factoran, GR No. 101083,
1993, minors represented by their
parents were held as real parties in
interest to file an action to annul timber
licenses issued by the state under the
following principles:
1. Inter-generational responsibility
2. Inter-generational justice
3. The right of the Filipinos to a
balanced and healthful ecology
4. Minors represent themselves and
the generation to come
4.Necessary Parties. (Rule 3, Sec. 8)
Those who are not indispensable but who
ought to be joined as a party if complete
relief is to be accorded as to those already

The court may


dismiss the case
for
failure
to
prosecute if the
plaintiff despite a
court order does
not implead an
indispensable
party (Rule 17,
Sec.3).

Necessary Party
A
final
determination may
be had of an
action even if a
necessary [arty is
not impleaded, but
is such a case
complete
relief
cannot
be
accorded, or there
will
be
an
incomplete
determination or
settlement of the
claim subject of
the action.
The failure by the
plaintiff
to
implead
a
necessary
party
despite
court
order,
will
not
result
in
the
dismissal of the
case but simply
the
waiver
of
plaintiffs
claim
against
such
necessary
party
(Rule 3, Sec.9).

Examples:
1. A joint obligor in a joint obligation.
2. A transferee pendent lite (Rule 3,
Sec.1).
The failure to implead the transferee
pendent lite would not affect the
validity of the judgment.

3. Actions to foreclose a real estate


mortgage, the junior mortgagees or
lienholders are necessary parties.
4. In a case of a co-owned property an
one of the co-owners files an
ejectment suit, the other co-owners
are necessary parties.
(Riguera, Primer-Reviewer on Remedial
Law, Vol.I, 2015).
5. Quasi parties
Those who are allowed by the court to
sue or defend in a class suit (Sec.12).
6. Nominal/ Pro Forma Parties
Those required under the rules to be
joined as co-parties in suits by or
against another party as may be
provided by the applicable substantive
law or procedural rule.
Spouse As Parties
(Rule 3, Sec.4)
General Rule: They shall sue or be sued
jointly
Exceptions:
1. Complete Separation of Property
2. If the action is against the other party

Notes:
1. In case of Pro forma parties who are
neither indispensable nor necessary,
the general rule under Rule 3, Sec.11
must be followed.
2. Non-joinder is not a ground for
dismissal.
In a case concerning an action to recover
a sum of money, the SC held that the
failure to join the spouse in that case was
not a jurisdictional defect. The nonjoinder of a spouse does not warrant
dismissal as it is merely a formal
requirement which may be cured by

amendment (Carandang v Heirs of de


Guzman, GR No. 160347, Nov. 29 2006).
Minor or Incompetent Persons
(Rule 3, Sec 5.)
A minor or a person alleged to be
incompetent, may sue or be sued with the
assistance of his father, mother, guardian
or if none, a guardian ad litem.
Minority or incompetency need not be
judicially declared as the rule only
requires that it be alleged.
Section 21. Indigent Parties
A party may be authorized to litigate his
action, claim or defense as an indigent if
the court, upon an ex parte application
and hearing is satisfied that the party is
one who has no money or property
sufficient and available for food, shelter
and basic necessities for himself and his
family.
Such
authority
shall
include
an
exemption from payment of docket and
other lawful fees and of transcripts of
stenographic notes which the court may
order to be furnished him.
The amount of the docket and other
lawful fees which the indigent was
exempted from paying shall be a lien on
any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant
of such authority at any time before the
judgment is rendered by the trial court.
Requisites
for
Exemption
from
Payment of Legal Fees. Refer to Rule
141, Sec.19.

37

38
1. Party must have a gross income and
that of their immediate family do not
exceed an amount double the monthly
minimum wage of an employee, and
2. Party do not own real property with a
fair market value as stated in the
current tax declaration of more than
P300,000
Conditions:
1. If the applicant for exemption meets
the salary and property requirements
under Rule 141, Sec.19 then the
grant of the application is mandatory.
2. If the applicant does NOT satisfy one
or both requirements, then the
application should not be out rightly
dismissed; instead, the court should
apply the indigency test under Rule
3, Sec.21 and use its sound discretion
in determining the merits of the
prayer for exemption (Algura v LGU,
GR No. 150135, Oct 30 2006).
Section 13. Alternative Defendants
Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of then as
defendant in the alternative, although a
right to relief against one may be
inconsistent with a right to relief against
the other.
TYPES OF JOINDER OF PARTIES
A. Permissive - Sec. 6
B. Compulsory - Indispensable Parties
(Sec. 7)
C. Proper or Necessary -Sec. 8
A. Permissive Joinder of Parties
(Rule 3, Sec.6)
Requisites:
1. There must be a right to relief in
respect to or arises out of the

same transaction or series of


transactions.
2. There is a question of law or fact
common to all the plaintiffs or all
the defendants.
3. Such joinder is not proscribed by
the provisions of the rules on
jurisdiction and venue.
Series of Transaction means
dealings with the parties but all
dealings are directly connected
same type of subject matter of
(Regalado).
Joinder of
Cause of Action
Party
asserts
various
claims
against the same
or several parties
in
one
single
complaint.

separate
of which
with the
the suit

Joinder of Parties
There are various
causes of action
that accrue in favor
of one or against
one
or
more
defendants.

Note: When there is joinder of parties,


there is also joinder of cause of action,
but there can be a joinder of cause of
action without joinder of parties.

B. Compulsory (Rule 3, Sec.7)


Those without whom no final
determination can be had of an
action; they must be joined under all
conditions
(Rule
3,
Sec.7).
(indispensable parties must be joined
compulsorily)
Test of indispensability
If the courts cannot proceed without
their presence such that a final decree
would necessarily affect their rights.
Note: A party is not indispensable if his
interest in the controversy is distinct
and indivisible from the interest of the

other parties and will not be prejudiced


by a judgment which does not complete
justice to the parties in the action.
C. Proper or Necessary (Rule 3, Sec.8)
Q: Who is a necessary party?
A: A party who is not indispensable but
who ought to be joined as a party if
complete relief is to be accorded as to
those already parties, or for a complete
determination or settlement of the claim
subject of the action
Effect of Absence of Indispensable
Parties:
1. The court must stop the trial and
order the inclusion of such party.
2. It
renders
all
subsequent
actuations of the court null and
void for want of authority to act,
not only as to the absent parties
but as to those present (Sepulveda,
Sr. v Pelaez, Supra).
Right of the plaintiff to select
defendant
None of the defendants has the right to
compel the plaintiff to prosecute an action
against a party if he does not wish to do
so. The plaintiff has to suffer the
consequences for his error in exercising
his option.
Remedies of a co-defendant who is NOT
dropped:
1. Move for the dismissal of the action
against him; or
2. Take other appropriate action as
might other be proper.
Notes:
1. The court may take initiative to
implead an indispensable party.
(Rule 3, Sec.11)

2. If the court orders to implead an


indispensable
party,
plaintiffs
refusal to comply with such order is
a ground for the dismissal of the
complaint.
Section 9.Non Joinder of necessary
parties to be pleaded
Duty of the pleader:
1. State the name of the necessary party
omitted, if known, and
2. State the cause or reason for the
omission.
Effects of Non Joinder of a Necessary
Party
1. The court may order the inclusion of
the omitted necessary party if the
court should find the reason for the
omission
unmeritorious
and
if
jurisdiction over his person can be
obtained
2. Unjustifiable failure of the party to
comply with said order shall be
deemed waiver of the claim against
such party (in effect an exception to
penalties imposed on a disobedient
party
under
Rule
17,
Sec.3;
Regalado).
3. The non-inclusion does not prevent
the court from proceeding in the
action and he judgment rendered
therein shall be without prejudice to
necessary partys rights.

Q: When may the court order the


joinder of a necessary party?
A: When the court finds the reason for
the omissions of such necessary party
unmeritorious and it may order the
inclusion of the omitted party if
jurisdiction over his person may be
obtained (Rule 3, Sec.9).

39

40
The dismissal under Rule 17, sec.3 shall
not be ordered where the plaintiff fails to
comply with the order of the court for the
joinder of the necessary part under this
rule, in line with Sec.11 which provides
that non-joinder of parties should not be
a ground for dismissal of an action
(Regalado).

motion to strike the names of the parties


impleaded.

Section 10. Unwilling Co-plaintiff

Section 12. Class Suit.

If the consent of the party who should be


joined as plaintiff cannot be obtained, he
may be made a defendant and the reason
shall be stated.

A suit brought by or defended by a


representative member or members of a
large group of persons on behalf of all the
members of the group.

The original plaintiff cannot be compelled,


on the mere representations of the
defendant, to implead anyone especially if
it does not appear that such joinder is
proper or is necessary for the complete
and expeditious adjudication of the case
(Emata v IAc GR No.L-72714, 1989).

Requisites: (BINC)
1. The subject matter of controversy is of
common or general interest to may
persons
2. Persons are so numerous that it is
impracticable to join all as parties
3. Parties actually before the court are
sufficiently
numerous
that
all
interests concerned are fully protected
4. The representatives sue or defended
for the benefit of all.

Section 11. Misjoinder and


Non-Joinder of Parties.
Both are not grounds for the dismissal of
the action. Parties may be dropped or
added by order of the court motu proprio
or on motion of any party at any stage of
the action and on such terms as are just.
(Riano)
Misjoined Parties
When he is made a
party to the action
although he should
not be impleaded.

Not Joined
Parties
When
he
is
supposed to be
joined bit is not
impleaded in the
action.

Objections to defects in the parties


impleaded should be made at the earliest
opportunity, that is when the moment
such defects become apparent, by a

If there is misjoinder, a separate action


should be brought against the party
misjoined. Objection to misjoinder cannot
be raised for the first time on appeal
(Regalado).

The complaint must specially state that


the same is being brought in behalf of
others with whom parties share a
common interest (Borlasa v Polistico, 47
Phil. 345).
Q: What shall the court do if it finds
that the requisites of a class suit have
been met?
A: The court shall appoint a number of
the group which it finds sufficiently
numerous and representative as to fully
protect the interests of all concerned to
sue or defend for the benefit of the group.
(Riguera, Primer-Reviewer on Remedial
Law, Vol. 1, 2015, Page 117)

Q: What is the effect of Improper Class


Suit?
A: If a class suit is not proper, the
defendant can file a motion to dismiss on
the ground that the plaintiff has no legal
capacity to sue (Rule 16, Sec.1[d]).
Determination of a class suit
Whether the suit is or is not a class
suit depends upon the attending facts
and complaint or any other pleading
initiating the class action should
allege the existence of necessary facts
(Mathay et al v Consolidated Bank and
Trust Co. GR No.L-23136, 1974).
Notes:
1. The parties who brought the class suit
have the control over the case with
the right to compromise or even
discontinue the same
2. A class suit cannot be compromised
or dismissed without the approval of
the court (Rule 17, Sec.2)
3. A member of the class suit is bound
by the judgment in the class suit,
hence this section give him the right
to intervene if he desires to protect his
own individual interest. In the interest
of justice, the absent members should
be notified of the filing of the class
suit whenever practicable (Regalado).
4. The defendant can assail the parties
sufficiency of burden of proof through
a motion to dismiss on the ground
that the plaintiff has no capacity to
sue (Rule 16, Sec.1 [d]). That is they
do not have the representation that
they claim.
Section 14. Unknown Identity Or
Name of the Defendant
When the identity or name of the
defendant is unknown, he may be sued as
the unknown owner, heir or such

designation as the case may require and


when his identity or true name is
discovered, the pleading may be amended
accordingly.
Section 15. Suits Against Entities
Without Juridical Personality.
Under Rule 3, Sec.1, only natural or
juridical persons or entities authorized by
law may be parties in a civil action.
However, an entity without juridical
personality be sued as a defendant when
it has entered into a transaction with the
plaintiff.
Two or more persons not organized as an
entity with juridical personality to enter
into a transaction may be sued under the
name by which they are generally or
commonly known but they cannot sue
under such name.
Answer
In the answer of such defendant, the
names and addresses of the persons
composing said entity must all be
revealed (Rule 14, Sec.8).
Judgment
Under Rule 36, Sec.6, when judgment is
rendered against two or more persons
associated in an entity without juridical
personality, the judgment shall set out
their individual or proper names if known
(Regalado, 2010).
Section 16. Effect Of Death Of
Party Litigant
Q: What is the duty of a party's
counsel, in case of the death of the
party?
A: Whenever a party to a pending action
dies and the claim is not thereby

41

42
extinguished, it shall be the duty of his
counsel:
1. To inform the court within 30 days
after such death of the fact
2. To give the name and address of
the
deceased
partys
legal
representative
Failure to comply by the counsel shall be
a ground for disciplinary action.
No summons are required to be served on
substitute defendants. Instead, the order
of substitution shall be served upon the
parties substituted in the action;
otherwise, the court does not acquire
jurisdiction over the substitute party
(Ferreria et al. v Vda. De Gonzales et.
al.104 Phil. 143). Proceedings conducted
by the trial court after the death of the
defendant and without such substitution,
are null and void (Lawas v CA et al., GR
No.L-45809, 1986; Regalado, 2010).
Rule: The substitution of the deceased,
priority
is
given
to
his
legal
representatives. The court may allow the
substitution by the heirs instead, if there
is unreasonable delay in the appointment
of an executor or administrator or when
the estate was extrajudicially settled
(Regalado, 2010).
Effect of Death
Relationship

to

General
Rule:
The
relationship is terminated.

Client-Lawyer

lawyer-client

Exceptions:
1. When there is a contract for the
lawyers service up to the final
judgment
2. When the lawyers fees are on a
contingent basis
3. When the lawyers appearance is
coupled with interest.

Q: What are the claims that are not


extinguished by the death of a party?
A:
1. Recovery of real and personal
property against the estate
2. Enforcement of liens on real and
personal properties of the estate
3. Recovery of damages based on an
injury to persons or properties by
reason of tort
4. Delict committed by the deceased
(Regalado, 2010).
The question as to whether an action
survives or not depends on:
1. The nature of the action
2. The damage sued for.
Action which
Survives
The
wrong
complained
of
affects
primarily
the property and
property rights; the
injuries to persons
being
merely
incidental.
Ex. Recovery of real
or
personal
property

Action which
does NOT Survive
The
injury
complained of is to
person
or
the
action is to the
person,
the
property
and
rights
affected
being
merely
incidental.
Ex.
Separation,
annulment
marriage.

Legal
of

Duty of the Court upon Notification of


a Partys Death
1. Court may appoint a guardian ad
litem for minor heirs
2. Order the representatives named to
appear and be substituted within 30
days from notice
3. The court may order the opposing
counsel to procure the appointment of

an executor or administrator for the


estate of the deceased, if:
a. There is no legal representative
named
b. The one so named fails to appear
within the specified period
Purpose of Substitution:
Protection of the right of every party to
due process; to ensure that the deceased
would
continuously
be
properly
represented in the suit through the duly
appointed legal representative of the
estate.
Section 17. Death or Separation of A
Party Who is a Public Officer.
Requisites:
1. Public Officer who is a party to an
action in his official capacity dies,
resigns or in any manner ceases to
hold office,
2. the action may be continued and
maintained
by
or
against
his
successor, if within 30 days after such
successor takes office or such time as
may be granted by the court, it is
satisfactorily shown that there is
substantial need for continuing or
maintaining the same
3. The successor adopts or continues or
threatens to adopt or continue the
action of his predecessor
Beforeasubstitutionismade,thepartyor
public
officeraffectedhasbeengivenreasonable
notice of the application and has been
accorded an opportunity to be heard
unless he expresslyassentsthereto.

Section 18. Incompetency and


Incapacity.
Thecourt,uponmotionwithnotice,mayallow
the action to be continued by or against
the
incapacitatedor
incompetentpartywiththeassistanceof
hislegalguardianorguardian adlitem.
Section 19.Transfer Of Interest.
General Rule: Action may be continued by
or against the original party.
Exception: The court directs transferee to
be substituted in the action or joined with
the original party.
Section 20. Action on Contractual
Money Claims.
Thedeathofthedefendantwillnotresultinthe
dismissaloftheactionagainsthimbecauseth
edeceasedshallbesubstitutedbyhislegalrep

43

44
resentatives.However,afavorablejudgment
shallnotentitlethewinningparty
toanexecution,asthesamemustbefiledasac
laimagainsttheestateofthedeceased
but
without the need of proving the claim.
Requisites:
1. Action must primarily be for the
recovery of money, debt or interest
2. The claim subject of the action arose
from the contract express or implied
3. Defendant dies before the entry of
the final judgment in the court where
his case was pending at that time.
Theimplied
contractsmentionedinthis
sectionandinRule 86, Sec.5may properly
includequasi-contracts
allpurelypersonalobligationsthatarenotbas
edonadelictoratort (Regalado).
Section 22. Notice to the Solicitor
General.
Whereanactioninvolvesthevalidityofanytre
aty,law,ordinance,executiveorder,presiden
tialdecrees,rulesorregulations,thecourtma
y,initsdiscretion,requiretheappearanceoft
heSolicitorGeneral.
FailuretonotifytheSolicitorGeneralaboutth
e petitionisNOTajurisdictionaldefect.

RULE 4
VENUE
Q: What is the definition of venue?
A: The place or geographical area where
an action must be instituted and tried.
General Rule: The venue of an action is
that which is provided by law. (Rule 4,
Sec.4 (a)).

Exception: If there is any stipulation of


an exclusive venue between the parties,
such stipulation will govern (Rule 4, Sec.4
(b))
Exception to the Exception: If there is
no agreement between the parties,
distinguish the kind of action.
Purpose:
To
attain
the
greatest
convenience possible to the party litigants
by considering the maximum accessibility
to courts.
Venue
1. Place where the
case is to be heard
or tried

Jurisdiction
1. Authority to
hear
and
determine a case

2.
Matter
procedural law

of

2.
Matter
or
substantive law

3. Establishes a
relation
between
plaintiff
and
defendant,
or
petitioner
or
respondent

3. Establishes a
relation
between
court
and
the
subject matter

4. May be conferred
by
the
act
or
agreement of the
parties

4. Fixed by law
and cannot be
conferred
by
agreement of the
parties

5. Not a ground
motu
proprio
dismissal (except in
cases subject to
summary
procedure)

5.
Lack
of
jurisdiction
over
the subject matter
is a ground for a
motu
proprio
dismissal

NOTE:
Venue is not jurisdictional in civil cases
as oppose to criminal cases.
Section 1. Venue of Real Actions

Q: What is the venue of real actions?


A: Real actions shall be commenced and
tried in the proper court which has
jurisdiction over the area wherein the
real property involved or a potion thereof
is situated. (Rule 4, Sec.1)
If the property is located at the
boundaries of two places, file the case in
either place at the option of the plaintiff
(Regalado, 2010).
Where the subject matter of the action
involves various parcels of land situated
in different provinces, the venue is
determined by the singularity or plurality
of the transactions involving said parcels
of land.
Rules:
1. Where said parcels are the objects of
one and the same transaction, the
venue is the court where any of the
provinces where a parcel of land is
situated (El Hogar Filipino v Seva, GR
No. 36627, Nov 19 1932).
2. If parcels of land are subject of
separate and distinct transactions
where there is no common venue,
separate actions should be laid in the
court of the province where each
parcel of land is situated (Mijares et
al. v Piccio et al., GR No. L- 10458,
April 22 1957; Regalado, 2010).
In case of forcible entry and detainer
actions shall be commenced and tried in
the MTC if the municipality or city where
the real property involved or a portion
thereof is situated.
Section 2. Venue of Personal Actions

Q: What is the venue of personal


actions?
A:
1. Where the plaintiff or any of the
principal plaintiffs resides
2. Where the defendant or any of the
principal defendants resides
3. In case of nonresident defendants,
where the nonresident defendants
may be found(Rule 4, Sec.2)
The rules on venue of personal actions
shall be at the election of the plaintiff.
Q: For purposes of the rule on venue,
what is the residence of a corporation?
A: The residence of a corporation is its
principal place of business, not its branch
office.(Riguera,
Primer-Reviewer
on
Remedial Law, Vol.I, 2015.page 137)
Section 3: Venue of Actions against
Nonresidents
Q: What is the venue of Actions against
Nonresidents?
A: It depends.
1. Nonresident defendant found in the
Philippines
1. Personal
actions
shall
be
commenced where the plaintiff
resides
2. Real actions shall be commenced
where the property is located
2. Nonresident defendant NOT found in
the Philippines
An action may be commenced only if it
involves:
1. Personal status of the plaintiff,
venue is where the plaintiff resides

45

46
2. Property of the defendant located in
the Philippines, venue is where the
property or a portion thereof is
situated. (Rule 4, Sec.3)
Where
there
is
more
than
on
defendant/plaintiff in the case, the
residences of the principal parties should
be the basis for determining the proper
venue (Regalado, 2010).
An exception to the general rules on
venue is found in civil actions for
damages in case of liber whether a
criminal case therefor has been files or
not, as special rules of venue are provided
in Art.360 of RPC, as last amended by RA
4364. Said venue applies to both
residents and nonresidents, assuming
that jurisdiction over the latter has been
acquired (Regalado, 2010).
Section 4: Rules on Venue
Do Not Apply
Q: When is Rule 4 ON VENUE OF
ACTIONS NOT APPLICABLE?
A:In those cases:
1. Where a specific rule or law provides
otherwise.
2. The parties have validly agreed in
writing before the filing of the action
on the exclusive venue thereof
(Principle of Stipulations on Venue).
Requisites for venue to be exclusive:
1. There is a valid written agreement
2. Executed by the parties before the
filing of the action
3. Venue is of exclusive or restrictive
nature (qualifying words such as only,
solely, exclusively in this court, in no
other place, to the exclusion of must be
used).

Q: Give Examples of cases where a


specific rule or law provides otherwise:
A:
1. Civil and criminal actions for Libel
shall be filed with the RTC having
jurisdiction over the place where the
libelous article is printed and first
published or where any of the offended
parties actually resides at the time of the
commission of the offense (Article 360,
Revised Penal Code; Primer-Reviewer on
Remedial Law, Civil Procedure, Vol.I,
Riguera, 2015, page142).
2. Petitions for rehabilitation shall be filed
with the RTC having jurisdiction over the
territory where the debtor's principal
office is located (SC, INTERIM RULES OF
PROCEDURE
ON
CORPORATE
REHABILITATION).
3. Petition for deposition before action
shall be filed in the court of the place of
the residence of any expected adverse
party (Section 1, Rule 24).
4. Petitions for declaration of nullity and
annulment of marriage shall be filed in
the Family Court of the province or city
where the petitioner or respondent has
been residing for at least 6 months prior
to the date of filing or in a case of non
resident respondent, where he may found
in the Philippines, at the election of the
petitioner (Section 4, SC Rule on
Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages).
EFFECTS OF STIPULATIONS ON
VENUE
Requisites for venue agreement to be
valid:
1. In writing; and

2. Executed by the parties before the


filing of the action.
Q: What is the effect of the absence of
qualifying or restrictive words?
A: In the absence of qualifying or
restrictive words, the venue stipulation is
merely permissive and not exclusive
which means that the stipulated venue is
in addition to the venue provided for in
the ruled (Polytrade Corp. v Blanco, GR
No. L-27033, 1969).
When the stipulation as to venue in a
passenger ticket of a vessel would be
contrary to public policy of making courts
accessible to all who may have need of
their service, the stipulation is void and
unenforceable (Sweet Line v Teves, GR No.
28324, May 19, 1972).
When the action is no longer based on the
agreement but on the tortious act of
sending collection telegrams despite the
fact that the obligation had already been
paid, venue is no longer based on the
written stipulation but at the election of
the plaintiff as fixed by law (Herrera, Vol.I,
2007).
The Supreme Court, to avoid miscarriage
of justice, has the power to order a
change of venue or place of the trial in
civil or criminal cases or other judicial
proceedings (Art.VIII, Sec.5(4), 1987
Constitution).

It has to be remembered that a thirdparty complaint is but ancillary to the


main action and is a procedural device to
avoid multiplicity of suits. Thus, thirdparty complaint has to yield to the
jurisdiction and venue of the main action
(Eastern Assurance & Surety Corp. v Cui,
GR No. L-54452, 1981).
Effect of Improperly Laid Venue
1. A ground for motion to dismiss. Refer
to Rule 16, Sec. 1 (c).
2. May be raised in an answer if no
motion to dismiss is filed.
1. The former rule, which provides
that when improper venue is not
objected to in a motion to dismiss
it is deemed waived was deleted
in the 1997 Rules on Civil
Procedure.
2. In cases governed by the Rule on
Summary
Procedure
and
in
ejectment, a motion to dismiss is a
prohibited
pleading.(PrimerReviewer on Remedial Law, Civil
Procedure, Vol.I, Riguera, 2015
,page 145).

RULE 5
UNIFORM PROCEDURE IN
TRIAL COURTS
Section 1: UNIFORM PROCEDURE

An intervention cannot alter the nature of


the action and the issues joined by the
original parties thereto (Claridades v
Mercader, GR No. L-20341, 1966).

The procedure in the MTC shall be the


same as in the RTC, except:
1. Where a particular provision expressly
or impliedly applies only to either of said
courts; or

An intervention is not an independent


proceeding but one which is merely
ancillary to the existing action.

2. In civil cases governed by the Rule on


Summary Procedure.

47

48
RULE 6
KINDS OF PLEADINGS
Section 1. Pleadings
These are written statements of the
respective claims and defenses of the
parties submitted to the court for
appropriate judgments.
Section 2. Kinds of Pleadings.

Kinds of Defenses
I. Negative Defenses
The specific denial (Rule 9, Sec.10)
of the material fact/s alleged in
the pleading of the claimant
essential to his cause/s of action
Sec.5 (a)).
Modes:
1. Absolute
Denial

the
defendant must specify each
materialallegation of fact the
truth of which he does not
admit and setting forth the
substance of the matters upon
which he relies to support his
denial, whenever practicable.
2. Partial Denial the defendant
shall specify so much of it as is
true and material and shall
deny the remainder.

A. Complaint (Section 3)
It is the pleading alleging the plaintiff
cause/s of action. The names and
residences of the plaintiff and
defendant must be stated in the
complaint.
It should contain a concise statement
of the ultimate facts constituting the
plaintiffs cause of action, not
evidentiary
facts
or
legal
consequences.
Test of Sufficiency of the Facts Alleged
In the Complaint
Whether upon the averment of facts, a
valid judgment may be properly rendered.
B. Answer (Section 4)
It is the pleading in
defending party sets
defenses.

which
forth

the
his

3. Disavowal of knowledge the


defendant shall state in his
pleading that he does not have
knowledge
or
information
sufficient to form a belief as to
the truth of a material
averment.
Note: This denial does not apply where
the facts as to which want of knowledge is
asserted, is so plainly and necessarily
within the defendants knowledge that his
averment of ignorance must be palpably
untrue. It is as if that no denial at all has
been made.
II. Negative Pregnant
A form of negative expression
which
carries
with
it
an
affirmation
or
at
least
an
implication of some kind favorable
to the adverse party.

It is a denial pregnant with an admission


of the substantial facts alleged in the
pleading.
Where a fact is alleged with qualifying or
modifying language and the words if the
allegation is so qualified or modified are
literally denied, has been held that the
qualifying circumstances alone are denied
while the fact itself is admitted (Republic v
Sandiganbayan, GR No. 152154, 2003).
It is actually an admission and vague as
to what it really denies (Riano).
Example.In Republic vs. Sandiganbayan,
it was alleged that it was clearly and
overwhelmingly
showed
how
the
respondents stashed away the countrys
wealth to Switzerland amounting to
$356M and hid the same under layers of
foundations and corporate entities to
prevent detection.
Negative Pregnant: The respondents
specifically denies the allegations for it
was false, the truth being that
respondents properties in the bank were
lawfully acquired.
III. Affirmative Defenses.
An allegation of a new matter which while
hypothetically admitting the material
allegations in the pleading of the
claimant, would nevertheless prevent or
bar recovery by him.(Sec. 5 (b))
Affirmative defenses includes:
1. fraud
2. statute of limitations
3. release
4. payment
5. illegality
6. statute of frauds
7. estoppel
8. former recovery
9. discharge in bankruptcy

10. any other matter by


confession and avoidance

way

of

Effect of admission and failure to set


up affirmative defenses
The court may, on motion of the party,
direct judgment on such pleading
pursuant to Rule 34, Sec.1
Except, in actions for declaration of
nullity or annulment of marriage or for
legal separation where the material facts
alleged in the complaint shall always be
proved.
C. Counterclaims
It is any claim which a defending party
may have against an opposing party(Rule
6, Sec.6).
A counterclaim is in the nature of a cross
complaint such that it must be answered
within 10 days from service.It is a cause
of action against the plaintiff.
Q: Where to File?
A: A counterclaim which is filed before the
MTC must be within the jurisdiction of
said court as to the amount and nature
thereof.
A court (if MTC) has no jurisdiction to
hear and determine a set-off or
counterclaim in excess of its jurisdiction.
A counterclaim beyond the courts
jurisdiction may only be pleaded by way
of defense. The purpose is to defeat or
weaken the plaintiffs claim, but not to
obtain affirmative relief.
A counterclaim may be entertained by
the RTC regardless of the amount
involved provided that it is cognizable by
the regular courts of justice (Regalado).

49

50
Q: How is counterclaim set up or
pleaded? May a counterclaim be set up
in a motion to dismiss?
A: While technically a separate and
independent pleading, a counterclaim by
common practice is pleaded or set up in
an answer (Section 6, Rule 16).Thus, the
practice of denominating such an answer
as "Answer with Compulsory/Permissive
Counterclaim/s."
A counterclaim cannot however be set up
in a motion to dismiss. The reason is that
while a counterclaim is a pleading, a
motion is not.
Kinds of Counterclaim
I. Compulsory Counterclaim
is one which arises out of or is
connected with the transaction or
occurrence constituting the subject
matter of the opposing party'sclaim
and
complies
with
the
other
requirements set forth in Section 7,
Rule 6.
Requisites:
1. It must arise out of, or be
necessarily connected with the
transaction or occurrence that
is the subject matter if the
opposing partys claim
2. It does not require for its
adjudication the presence of
third parties of whom the court
cannot acquire jurisdiction
3. It must be cognizable by the
regular courts
4. The trial court has jurisdiction
to entertain the claim both as to
the amount and the nature
thereof.
Except that in an original action
before the RTC, the counter claim
may be considered compulsory
regardless of the amount.

5. It must be existing at the time


the defendant files his answer
(Rule 11, Sec.8).
Q: What is the "compelling test of
compulsoriness" to determine whether
a claim is compulsory?
A: The test involves asking the question
whether there is alogical relationship
between the claim and counterclaim. If
there is such a logical relationship, then
the claim is compulsory.
II. Permissive Counterclaim
It is a counterclaim which does not arise
out of or is necessarily connected with
the subject matter of the opposing
partys claim.
It is not barred even if it is not set
up in the original action.
General
Rule:
A
compulsory
counterclaim not set up in the
answer is deemed barred.
Exceptions:
1. If it is a counterclaim which either
matured or was acquired by a party
after serving his answer.
In this case, it may be pleased by
filing a supplemental answer or
pleading before judgment.
2. When a pleader fails to set-up a
counterclaim through:
a. oversight,
b. inadvertence,
c. excusable negligence, or
d. when justice requires, he may,
leave of court set up the
counterclaim by amendment of
the pleadings before judgment
(Rule 11, Sec.10)

A plaintiff who fails or chooses not to


answer a compulsory counterclaim may
not be declared in default principally
because the issues raised in the
counterclaim are deemed automatically
Compulsory
Permissive
Counterclaim
Counterclaim
As to preclusion if not raised
1.
A
compulsory
counterclaim which
has at the time the 1. It may be set up as
answer is filed shall an independent action
be contained in the and will not be barred
Answer because a if not contained in the
compulsory
answer.
counterclaim not set
up shall be deemed
barred.
Nature of Pleading
2. Not an initiatory 2. Considered as an
pleading.
initiatory pleading.
As to payment of Docket Fees
3. No docket fees are
3. Docket fees need to
required.
be paid when filed
with the RTC.
As for requirement of Certification Against
Forum Shopping
4.
No
such 4.
Must
be
requirement.
accompanied by a
certification
against
forum shopping and
whenever required by
law, a certificate to file
action issued by the
Lupong
Tagapamayapa.
As for need to Answer
5. Failure to answer 5. Must be answered
is not a cause for by the party against
default.
whom it is interposed
otherwise, he may be
declared in default as
to the counterclaim.
As for prohibition under the rule on summary
procedure
6. Allowed under the 6. Cannot be availed
Rule on Summary
Procedure

joined by the allegations of the complaint


(Gojo v Goyala, GR No. 26768, 1970).
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim
are incompatible remedies.
In the event that a defending party has a
ground for dismissal and a compulsory
counterclaim at the same time, he must
choose only one remedy. If he decides to
file a motion to dismiss, he cannot set up
his counterclaim. But if he opts to set up
his counterclaim, he may still plead his
ground for dismissal as an affirmative
defense in his answer (Regalado, 2010).
Q:
Distinguish
a
counterclaim
from
counterclaim.

compulsory
permissive

A counterclaim, even if otherwise


compulsory, but the amount exceeds the
jurisdiction of the inferior court, will only
be considered permissive. Hence, the fact
that it is not set up in the inferior court
will not bar plaintiff from instituting a
separate action to prosecute it (Calo v
Ajax, GR No.L-20865, 1968).
EFFECT ON THE COUNTERCLAIM THE
COMPLAINT IS DISMISSED
Under the 1997 Rules, the dismissal of
the
main
complaint
will
not
correspondingly result in the dismissal of
the counterclaim where the defendant
had already filed and served the answer
with counterclaims upon the plaintiff.
The defendant has the option of
prosecuting the counterclaim in the same
or in a separate action (Riguera, PrimerReviewer
on
Remedial
Law,
Civil
Procedure, Vol.I).

51

52
1. If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in Rule 16 may be
pleaded as an affirmative defense in
the answer and, in the discretion of
the court, a preliminary hearing mat
be had thereon as if a motion to
dismiss had been filed.
Note: The dismissal of the complaint
under this section shall be without
prejudice to the prosecution in the same
or separate action of a counterclaim
pleaded in the answer (Rule 16, Sec.6.)
2. Where the plaintiff himself files a
motion to dismiss his complaint after
the defendant has pleaded his answer
with a counterclaim, the dismissal
shall be limited to the complaint and
is without prejudice to the right of the
defendant
to
prosecute
his
counterclaim in a separate action.
Unless within 15 days from notice of the
motion he manifests his preference to
have his counterclaim resolved in the
same action. (Rule 17, Sec.2)
3. If the dismissal is due to the fault of
the plaintiff and a counterclaim has
been set up by the defendant, the
latter
may
prosecute
such
counterclaim in the same or in a
separate action. (Rule 17, Sec.3).

C. Cross-claims Rule 6, Sec.8


It is any claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter
either or the original action or of a
counterclaim therein.
Note: The dismissal of the complaint
carries with it the dismissal of a cross-

claim which is purely defensive (but not a


cross-claim seeking affirmative relief).
Reason: It has no independent existence
and based on the complaint.
Test of Propriety of Cross-claim
There must be at least a necessary
relation to the matter constituting the
principal cause of action.
General Rule: The cross-claim must be
set up in the action, otherwise, it is
deemed barred.
Exceptions:
1. When it is outside the jurisdiction of
the court
2. If
the
court
cannot
acquire
jurisdiction over third parties whose
presence
is
necessary
for
the
adjudication of said cross-claim. In
which case, the cross-claim is
considered permissive
3. Cross-claim that may mature or may
be acquired after the service of the
answer

Counterclaim

Cross-claim

As to whom Directed
1.
Directed 1.
Directed
against
the against a co-party
opposing party
As to Connection with the Main
Action
2. May or may 2. Always arise
not arise out of out
of
the
the transaction transaction
or
constituting the occurrence that is
subject matter of the subject matter
the
opposing of the original
partys claim
action or of a
counterclaim
As to compulsoriness
3. May or may 3.
Always
not
be compulsory

compulsory
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, Vol.I, 2015,page 182)
Section 12. Bringing New Parties.
When the presence of parties other than
those to the original action is required for
the granting of complete relief in the
determination of a counterclaim or crossclaim, the court shall order then to be
brought in as defendants, if jurisdiction
over them can be obtained.
Section 9. Counter-Counterclaims and
Counter Cross-claims.

Judgment: Two judgments may be


rendered in the action where a third-party
complaint is filed on the principal and
on the third-party complaint.
Third-Party
Complaint
1. A pleading

1. An affidavit

2. Filed by a
party to a case

2.
Filed
by
a
stranger to the case

3. The purpose
is
for
the
defendant
to
bring
in
a
stranger as a
party to the case

3. The purpose is for


the third-party to
notify of his right or
claim
over
the
property attached,
levied, or seized by
the sheriff.

A counter claim may be asserted against


an original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.
D. Third
(Fourth,
etc.)
Party
Complaints Rule 6, Sec.11
It is a claim that a defending party
may, with leave of court, file against a
person not a party to the action,
called the third (fourth etc.) party
defendant for: (CISO)
1. Contribution
2. Indemnity
3. Subrogation
4. Any other relief in respect to his
opponents claim
Note:Third party complaint must yield to
the jurisdiction and venue of the main
action.
Ground for denial of third party
complaint
When allowance would delay resolution of
the original case.

Third Party Claim

(Riguera, Primer-Reviewer on Remedial


Law, Civil Procedure, Vol.I, 2015,page 184)

Answer to Third (Fourth, Etc.)


Party Complaint
A third (fourth, etc.) party defendant may
allege in his answer his defenses,
counterclaims or cross-claims, including
such defenses that the third (fourth, etc.)
party plaintiff may have against the
original plaintiffs claim (Rule 6, Sec.13).
In proper cases, he may also assert a
counterclaim against the original plaintiff
in respect of the latters claim against the
third party plaintiff.
E. Complaint-in-Intervention
A pleading wherein an intervenor
asserts a claim against either or all of
the original parties (Rule 19, Sec.3).
Third-Party
Complaint

Complaint-InIntervention

53

54
Person
who
initiates
is
the
defending party

Person
who
initiates is not a
party
to
the
original
complaint

E. Reply
It is a pleading, the office or function of
which is to deny, or allege facts in denial
or avoidance alleged by way of defense in
the answer and thereby join or make
issue as to such new matters (Rule 6,
Sec.10).
General Rule:
Filing a reply is optional.
Exceptions:
1. The answer is based on actionable
document (Rule 8, Sec.8).
2. To set up affirmative defenses on
the counterclaim
3. The answer alleged the defense of
usury.
Actionable Document: The action or
defense is based or founded upon a
written instrument or document (Riano,
2011).
Q: What is the effect of Failure to File
a Reply?
A: All the new matters alleged in the
answer are deemed controverted.
Pleadings Allowed in Small Claim Cases
and Cases Covered By the Rules on
Summary Procedure
Pleadings allowed under the Rule on
Summary Procedure (CCCA)
1. Complaint
2. Compulsory
Counterclaim

3. Cross-claim
4. Answer
Note: All pleadings must be verified.
Q:
What
are
the
Prohibited
Pleadings/Motions under the Rule on
Summary Procedure?
A:(6M [dbp red] TM PIRC)
1. Motion to dismiss the complaint
Except on the ground of lack of
jurisdiction over the subject
matter or failure to comply with
the requirement of prior referral
to the Lupon.
2. Motion for bill of particulars
3. Motion for new trial or for
reconsideration of a judgment for
reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavit or any other
papers
6. Memoranda
7. Petition for certiorari, mandamus
or
prohibition
against
any
interlocutory order issued by the
court
8. Motion to declare the defendant in
default
9. Dilatory motions for postponement
10. Reply
11. Third party complaint
12. Intervention
Notes:
1. The defense of lack of jurisdiction
may be raised in a motion to
dismiss as an exception to the rule
on prohibited pleadings.
2. The filing of a motion to dismiss
after the answer had already been
submitted does not constitute
prohibited pleading (Heirs of

Olivas v Flor, GR No.L-78343,


1988).
3. While the plaintiff cannot file a
motion to declare defendant in
default, he may file a motion to
render judgment should the
defendant fail to file his answer.
Q:
What
are
Pleadings/Motions
Cases?
A:

the
prohibited
in Small Claim

1. Motion to dismiss the complaint


2. Motion for a bill of particulars
3. Motion for new trial, or for
reconsideration of a judgment, or
for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavits, or any other
paper
6. Memoranda
7. Petition for certiorari, mandamus
or
prohibition
against
any
interlocutory order issued by the
court
8. Motion to declare the defendant in
default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions ( A.M. No. 08-8-7-SC,
Sec.14 as amended)

The rule shall govern the procedure


before the MTC in actions for payment of
money where the value of the claim does
not exceed P100,000 exclusive of interests
and costs.
Note:The
prohibited
pleadings
and
motions are essentially the same as those
prohibited under the Rule on Summary
Procedure. The only difference is that
motions to dismiss on whatever ground
are prohibited in small claims cases.

RULE 7
PARTS OF A PLEADING
A. Caption. (Sec.1)
1. Title of the Action - indicates the
names of the parties.
They shall all be named in the
original complaint or petition.
In subsequent pleadings, it shall
be sufficient if the name of the
first part is indicated on each side
with a proper indicator that there
are other parties.
2. Docket Number if assigned.
Variance between caption and
allegations in the pleading
It is not the caption of the
pleading but the allegations which
determines the nature of the
action and the court shall grant
the relief warranted by the
allegations and proof even if no
such relief is prayed for (Regalado,
2010).
B. Body. (Sec.2)
(DARD)
1. Designation
2. The allegations of
claims and defenses
3. The relief prayed for
4. Date of the pleading

the

parties

Notes:
1. The court may grant a relief not
prayed for as long as the relief is
warranted
based
on
the
allegations of the complaint and
the proof. The docket fees on such

55

56
award shall constitute a lien on
the judgment. (Rule 141, Sec.2)
2. The
question
of
jurisdiction
depends upon the determination
of the true nature of the action
filed by a party which involves the
consideration of the ultimate facts
alleged as constitutive of the cause
of action therein. The prayer for
relief, although part of the
complaint, cannot create a cause
of action (Regalado).
C. Signature and Address (Sec.3)
The pleading must be signed by:
1. The party; or
2. Counsel representing him
Stating in either case his
address which should not be
a post office box.

papers and pleadings filed with the


Supreme Court (A.M. No.07-6-5-SC,
2007).
Under B.M. 1922, practicing members of
the Bar are REQUIRED TO INDICATE in
all pleadings filed before the courts or
quasi-judicial bodies, the number and
date of issue of their MCLE Certificate of
Compliance or Certificate of Exemption,
as may be applicable, for the immediately
preceding compliance period.
Note: Failure to disclose the required
information would cause the dismissal of
the case and the expunction of the
pleadings from the records.
D. Verification (Sec.4)
General Rule: Pleadings need NOT be
verified.

General Rule: An unsigned pleading


produces no legal effect.

Exception: When specifically required


by law or rule.

Exceptions:
1. Failure to sign was die to mere
inadvertence; and
2. Not intended for delay

Pleadings that must be verified:


1. Petition for relief from judgment.
Rule 38, Sec.3.
2. Appeal by certiorari from CA to
SC. Rule 45, Sec.1.
3. Complaint
with
prayer
for
preliminary attachment. Rule 58,
Sec.3
4. Complaintforreplevin(R60,S2);
5. Petitionforcertiorari(R65,S1);
6. Petitionforprohibition(R65,S2);
7. Petitionformandamus(R65,S3);
8. Complaintforforcibleentryorunlawf
uldetainer(R70,S4);
9. Petition
for
appointment of
generalguardian(R93,S2);
10. Petition for leave to sell or
encumber
propertyofestateorguardian(R95,S
1);
11. Petitionfordeclarationofcompetenc
yoftheward(R97,1);

INFORMATION WHICH SHOULD BE


STATED BYTHE COUNSEL BELOW HIS
SIGNATURE:
1. His address which should not be a
post office box
2. His PTR official receipt number for the
current year
3. His IBP official receipt number for the
current year
4. His roll number
5. Number and date of issue of his MCLE
Certificate
of
Compliance
or
Certification of Exemption for the
immediately preceding compliance
period (B.M. No.1922)
6. Phone
number,
Fax
number,
cellphone number, or email address in

12. Petitionforhabeascorpus(R102,S3);
13. Petitionforchangeofname(R103,S2)
;
14. Petition for voluntary dissolution
of a corporation(R104,S1);
15. Petitionforcancellationorcorrection
ofentriesinthecivilregistry(R108,R
1);
16. Petitiontotakedepositioninperpetu
amreimemoriam(beforeactionorpen
dingappeal)(R24,S2);
17. Motiontosetasideadefaultorderofan
inferiorcourt;
18. Motionfordissolutionofpreliminaryi
njunctiononthegroundofirreparabl
edamagetothemovantwhiletheadve
rsepartycanbefullycompensated;
19. Petition
for
appointment
of
receiver (R59,S1);
20. Petitionforreviewofthedecisionofan
RTCincaseswithintheexclusiveorigi
naljurisdictionoftheinferiorcourt,b
yandelevatedtotheCA(R42,S1);
21. PetitionforreviewfromthequasijudicialagenciestotheCourtofAppea
ls(R43,S1)
22. Appealbycertiorarifrom
theCourtofTaxAppealstotheSupre
meCourt(Sec.12,RA9282amending
Sec.19,RA1125);
23. Petition
for
annulmentofjudgmentsor
finalordersandresolutions(R47,S1)
;
24. Applicationforsupportpendentelite
(R69,S1)
Q: Who may make a verification?
A: A verification may be made by the
party, his lawyer or his representative or
any person who personally knows the
truth of the facts alleged in the pleading
(Tanjuatco vs. Judge Gako, RTJ-06-2016,
23 March 2009).
Q: How is a pleading verified?

A: A pleading is verified by an affidavit


stating that:
1. The affiant has read the pleading
2. That the allegations therein are
true and correct of his personal
knowledge or based on authentic
records
E. Certification
Against
Shopping.(Sec.5)

Forum

The plaintiff or principal party shall


certify under oath in the complaint, or
other initiatory pleading asserting a
claim for relief, or in a sworn
certification annexed thereto and
simultaneously filed therewith:
1. That he has not commenced any
action or filed any claim involving
the same issues in any court,
tribunal or quasi-judicial agency
and to the best of his knowledge,
no such other action or claim is
pending therein.
2. If there is such other pending
action or claim, a complete
statement of the present status
3. If he should thereafter learn that
the same or similar action or claim
has been filed or is pending, he
shall report that fact within 5 days
therefrom to the court wherein his
complaint or initiatory pleading has
been filed.
Note:Failure
to
comply
with
the
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be a cause
for the dismissal of the case without
prejudice, unless otherwise provided
upon motion and after hearing.
The submission of a false certification or
non-compliance
with
any
of
the
undertakings shall constitute indirect

57

58
contempt of court, without prejudice to
the corresponding administrative and
criminal actions.
If the acts of the party or his counsel
clearly constitute willful and deliberate
forum shopping, the same shall be:
1. Ground for summary dismissal with
prejudice and
2. Shall constitute direct contempt
3. Cause for administrative sanctions
A. Whether the several actions filed
involve:
1. Same transactions
2. Same essential facts and
circumstances
3. Identity of parties, rights or
causes of action and relief
sought in two or more cases
pending.
B. Forum shopping exists where:
1. The elements of litis pendentia
are present, or
2. A final judgment in one case
will amount to res judicata in
the other.
Q: When to invoke?

A: General Rule: It must be raised at the


earliest opportunity in a motion to
dismiss or a similar pleading.
Exception: Objection is waived if not
timely raised in the answer to the
complaint or other initiatory pleading.
Notes:
1. Forum shopping applies only when
2 or more cases are still pending.
2. Where the judgment had already
become final and executory, then
Res Judicata should be alleged
rather than forum shopping as a
defense.

Requirements of a Corporation
Executing the
Verification/Certification Against NonForum Shopping
The requirement that a petitioner or
principal party should sign the certificate
of non-forum shopping applies even to
corporations
considering
that
the
mandatory directives of the ROC make no
distinction between natural and juridical
persons.
A corporation, however, exercises its
powers through its board of directors
and/or its duly authorized officers and
agents. Physical acts, like the signing of
documents, can be performed only by
natural persons duly authorized for the
purpose by corporate by-laws or by a
specific act of the board of directors
(Pascual and Santos Inc. v The Members of
the Tramo Wakas Neighborhood Assoc.
Inc., GR No. 144880, 2004).

F. Effect Of The Signature Of The


Counsel In A Pleading
Implied certification in a pleading
when a counsel signs a he is certifying
that:
1. He has read the pleading
2. To the beat of his knowledge,
information or belief, there is a
good ground to support it
3. It is not interposed for delay.
Effect of failure to sign a pleading
1. Pleading may be stricken out as
sham and false
2. Court shall treat the same as if no
pleading has been served
3. Attorney may be subjected to
disciplinary action.

Counsel
shall
be
subjected
to
appropriate disciplinary action if he:
1. Deliberately files an unsigned
pleading
2. Signs a pleading in violation of the
rules
3. Alleges scandalous or indecent
matter
4. Fails to promptly report to the court
the change of his address.

Q: How may alternative causes


action or defenses be pleaded?

Note:A pleading require to be verified


which contains a verification based on
information
andbelief
or
upon
knowledge, information and belief or
lacks a proper verification, shall be
treated as an unsigned pleading.(Sec.4)

How Allegations in a Pleading are


made:
1. Condition Precedent (Sec.3)
A general averment of performance of
all conditions precedent shall be
sufficient.

RULE 8
MANNER OF MAKING
ALLEGATIONS IN THE
PLEADINGS
A. Manner
(Sec.1)

of

Making

Allegations.

In General: Every pleading shall


contain in a methodical and logical
form a plain, concise and direct
statement of the ultimate facts,
omitting the statement of mere
evidentiary facts.
Q: What are Ultimate Facts?
A: Those important and substantial facts
which form the basis of the primary right
of the plaintiff and which makes up the
wrongful acts or omissions of the
defendant. They are the principal,
determinate, constitutive facts, upon the
existence of which, the entire cause of
action rests (Tantuico, Jr. v Republic, GR
No. 89114, 1991).

of

A:
Apartymaysetforthtwoormorestatementsof
a
claimordefensealternativelyorhypothetical
ly,EITHERin
onecauseofactionordefenseorinseparateca
usesofactionordefense.(Rule 8, Sec. 2)

Note: If condition precedent is


required, the complaint must allege
fulfillment or excuse
for nonfulfillment.
2. Capacity (Sec.4)
Averred with particularity:
a. The capacity of a party to sue or
be sued
b. The authority of a party to sue or
be sued in a representative
capacity
c. The legal existence of an organized
association of persons that is
made a party.
How to contests capacity, by:
a. Specific denial
b. Motion to dismiss
c. Motion for bill of particulars.
3. Fraud, Mistake, Condition of the
Mind.(Sec.5)
The circumstances constituting Fraud
or Mistake must be stated with
particularity.

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60
Malice, Intent, Knowledge or Other
condition of the mind (MIKO) of the
person may be averred generally.
4. Judgment. (Sec.6)
A judgment or decision of a domestic
or foreign court, judicial or quasijudicial tribunal, or of a board or
officer may be averred generally
without setting forth matter showing
jurisdiction to render it.
General Averment
Facts which may
be averred
generally

Particular Averment
Facts which must
be averred with
particularity

1. Conditions
precedent
2. Capacity to sue
or be sued
3. Malice, Intent,
knowledge or other
conditions of the
mind.(MIKO)
4. Judgment
5. Official
document or act

Circumstances
constituting Fraud or
Mistake

B. Pleading As Actionable Document.


(Sec. 8)
Q: What is an Actionable document?
A: A document or instrument upon which
an action or defense is based.
Q: How to Plead an Actionable
Document?
A:
1. By setting forth the substance of
such instrument or document un
the pleading and attaching the
original copy as an exhibit
2. By setting forth the contents of such
document or instrument verbatim in
the pleading itself.

Q: Howto contest an actionable


documents?
A:
1. By
specifically
denying
the
genuineness and due execution of
the document under oath; and
2. Setting forth what he claims to be
the facts.
Note: Failure to deny the genuineness
and due execution of an actionable
document does not preclude a party from
arguing against it by evidence of fraud,
mistake, compromise, payment, statute of
limitations,
estoppel and want of
consideration (Acabal v Acabal, as cited in
Riano, 2011).
Genuineness
1. That the document is not spurious,
counterfeit or different from the one
executed by the party, or
2. That the party whose signature
appears admits that he signed it, or
3. That it was signed by another with his
authority and that at the time it was
signed, it was in words and figures as
set out in the pleadings.
Due Execution
1. That the document was signed
voluntarily and knowingly by the
party
whose
signature
appears
thereon, or
2. That if signed by another, that it was
with his authority,
3. That the document was duly delivered
and that the formalities required by
law are complied with (Hibberd v
Rhode, GR No. 8418, 1915).
Requirement of an oath does NOT
apply:
1. When adverse party foes not appear to
be a party to the instrument

2. When compliance with an order for an


inspection of the original instrument
is refused
3. The document to be denied is not
classified as an actionable document
bur merely an evidentiary matter.
Effects of Failure to deny under oath
when required:
1. The genuineness and due execution of
the document is deemed admitted
2. The document need not be formally
offered

document was
signed; it was
not in words
and figures as
set out in the
pleadings.

Note: If the other party has allowed the


adverse party to present evidence
contrary to the contents of the document
without objection, the rule on implied
admission is deemed waived.

Note: Where the cause of action is based


on an affidavit and memorandum of
Quitclaims, a judgment on the pleadings
is proper (Rule 34).

C. Specific Denials. (Sec.11)

Defenses
BARRED by
Admission of
Genuineness and
Due Execution

Defenses NOT
WAIVED Despite
Failure to
Specifically
Deny Under Oath

General Rule: Allegations not specifically


denied under oath are deemed admitted.

1. Signature is a
forgery
2. Signature is
unauthorized
3. The
corporation is
not authorized
under its
charter to sign
the instrument
4. The party
charged signed
the instrument
in some other
capacity than
that alleged in
the pleading
5. The document
was never
delivered
6. That at the
time the

1. Payment
2. Want or
illegality of
consideration
3. Fraud
4. Mistake
5. Compromise
6. Statute of
Limitations
7. Estoppel
8. Duress
9. Minority or
Imbecility

Effect of Failure
Denials

to Make Specific

Exceptions:
1. Allegations as to the amount of
unliquidated damages
2. Immaterial allegations in the complain
3. Conclusions of law
4. Grounds for legal separation or
annulment of marriage
5. General averment contradicted bu
specific averment
6. Default.
Specific Denial Requires An Oath,
when:
1. Contesting an actionable document
2. Denial of allegations of usury (Riano,
2011).
Requisites in Striking out of pleading
or matter contained (Sec.12)
. Upon motion made by a party
B. Before responding to a pleading, or
a. within 20 days after service of
pleading
upon
him
(if
no
responsive pleading is allowed), or

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62
b. upon courts own initiative at any
time.
C. Court may order any pleading to be
stricken out, or
a. That any sham, false, redundant,
immaterial,
impertinent
or
scandalous matter be stricken out.

RULE 9
EFFECT OF FAILURE TO PLEAD
A. Failure To Plead
Objections. (Sec.1)

Defenses

and

General Rule: Defenses and objections


not pleaded in an answer or motion to
dismiss are deemed waived.
Exceptions: When it appears from the
pleadings or evidence on record
1. That the court lack jurisdiction
over the subject matter
2. Litis pendentia between same
parties for the same cause
3. Res Judicata
4. Action barred by statute of
limitations.
Otherwise, the court shall dismiss the
claim.
Note: These defenses may be raised at
any stage of the proceedings, even on
appeal, except lack of jurisdiction which
may be barred by laches (Tijam v
Sibonghanoy, GR No.L-21450, 1968).
B. Failure To Plead A
Counterclaim
and
(Sec.2)

Compulsory
Cross-claim

General
Rule:
A
compulsory
counterclaim or cross-claim which is not
set up is deemed barred.

Exceptions:
1. If the counterclaim or cross-claim
matured or was acquired by a party
after serving his answer, he may, with
the permission of the court, be
allowed to present his counterclaim or
cross-claim by filling a supplemental
answer or pleading before judgment.
Refer to Rule 11, Sec.9.
2. When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, by
leave of court, set up the counterclaim
or cross-claim by amendment before
judgment. Refer to Rule 11, Sec.10.

Note: An after-acquired counterclaim is


merely permissive even if it arises from or
is connected with the transaction or
occurrence constituting the subjectmatter of the opposing partys claim.
Default. (Sec.3)
Refers to the defending partys failure to
answer within the time allowed and not to
the partys failure to appear in trial or
failure to present his evidence.
A motion to declare defendant in default
must be set for hearing for it may
prejudice the rights of the adverse party
under Rule 15, Sec.4.
General Rule: The court may not motu
proprio declare defendant in default for
failure to timely file and answer. There
should be a motion by the plaintiff.

Exception: Under the Rule on Summary


Procedure, the court may motu proprio
render judgment in favor of the plaintiff if
the defendant fails to timely answer.

Dual Stages of Default


I. Declaration/Order of Default
Issued by the court upon motion of
the claiming party with notice to the
defending party for failure of the
defending party to file his responsive
pleading on time.
Note: This is an interlocutory order,
therefore, not appealable.
II. Judgment by Default
Rendered by the court following a
default order, or after its receipt, ex
parte, of plaintiffs evidence.
Note: It is final and not appealable.
A. When Order of Default is Proper
Elements of Valid Order of Default:
1. Court must have jurisdiction
acquired over the person of the
defendant either by service of
summons
or
voluntary
appearance
2. The defendant failed to file his
responsive pleading on time
3. There must be a motion to
declare defendant in default
made by the claiming party
4. The defendant must be notified
by serving him with a copy of
such motion
5. There must be proof of such
failure to answer.

such relief as his pleading may


warrant or require him to present
evidence.
2. The party declared in default shall
not be allowed to take part in the
trial
3. The part in default shall be
entitled to notice of subsequent
proceedings, final orders and
judgments
4. In case of partial default, the court
shall try the case against all upon
the answers this filed and render
judgment upon the evidence
presented.
Notes:
1. The answer filed by the answering
defendant will automatically benefit the
non-answering.
2. Failure to furnish a copy of the answer
to the adverse party in itself is
sufficient or valid basis for defendants
default.
C. Relief From Order Of Default
REMEDIES OF A PARTY WHO IS
DECLARED IN DEFAULT
BEFORE
NOTICE OF
ORDER OF
DEFAULT

Note: A defaulted party is not disqualified


from testifying in court in behalf of nondefaulted party.
B. Effects of Order of Default
1. The court shall proceed to render
judgment granting the claimant

AFTER
ORDER OF
DEFAULT BUT

File a motion to
admit answer giving
a justifiable cause
for the delay in the
filing of the answer
File a motion under
oath to set aside the
default order upon
proper showing that
his failure to answer
was due to fraud,
accident, mistake or

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64
BEFORE
JUDGMENT.

AFTER
JUDGMENT
BUT BEFORE
IT BECOMES
FINAL.

excusable
negligence and that
he has meritorious
defense.
File a motion for
new trial on the
ground of FAME, if
denied,
it
is
appealable
within
15 days from such
denial.
File a petition for
relief under Rule 38.

AFTER
JUDGMENT
BECOMES
FINAL.

AFTER
PERIOD TO
FILE A
PETITION
FOR RELIEF
HAS LAPSED.

If the defendant was


improvidently
or
wrongly declared in
default he may move
to set aside the
judgment by way of
special civil action
for certiorari.
File a petition for
annulment
of
judgment based on
extrinsic
fraud
under Rule 47.

(Riguera, Primer-Reviewer on Remedial


Law, Civil Procedure, Vol.I, 2015,page 240)
Q: Defendant was declared in default by
the RTC (RTC). Plaintiff was allowed to
present evidence in support of his
complaint. Photocopies of official receipts
and original copies of affidavits were
presented in court, identified by plaintiff
on the witness stand and marked as
exhibits. Said documents were offered by
plaintiff and admitted in evidence by the
court on the basis of which the RTC

rendered judgment in favor of the


plaintiff, pursuant to the relief prayed for.
Upon receipt of the judgment, defendant
appeals to the Court of Appeals claiming
that the judgment is not valid because
the RTC based its judgment on mere
photocopies and affidavits of persons not
presented in court.(BAR 2000)
Is the claim of defendant valid?
A: The claim of defendant is not valid
because under the 1997 Rules, reception
of evidence is not required. After a
defendant is declared in default, the court
shall proceed to render judgment granting
the claimant such relief as his pleading
may warrant, unless the court in its
discretion requires the claimant to submit
evidence, which may be delegated to the
clerk of court. (Sec. 3, Rule 9)
D. Effect of A Partial Default
General Rule: The court shall try the
case against all upon the answers thus
filed and render judgment upon the
evidence presented.
Exception: Where the defense is
personal to the one who answered, in
which case, it will not benefit those
who did not answer.
E. Extent of Relief
Limitations in a default judgment
1. Should not exceed the amount
prayed for in the complaint
2. Should not be different in kind
from that prayed for in the
complaint
3. No award of unliquidated damages
should be made.
F. Actions Where
Allowed (LADS)

Default

Are

Not

1.
2.
3.
4.

Annulment of marriage
Declaration of nullity of marriage
Legal separation
Special civil actions of certiorari,
prohibition and mandamus.

Remedies: Where the defendant was


improperly declared in default, as where
the reglementary period to answer had
not yet expired, he can, if such default
order is not lifted, elevate the matter by
certiorari without waiting for the default
judgment.
If default judgment was already rendered,
he can also resort immediately to
certiorari and challenge the nullity of
both the order and the judgment and not
on the merits or correctness of the
judgment (Regalado).

RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
Section 1. Amendments
Q: How pleadings are Amended?
A:
1. Adding or striking out an allegation
of any party
2. Adding or striking out the name of
any party
3. Correcting a mistake in the name
of a party
4. Correcting a mistake or inadequate
allegation in any other respect.
KINDS OF AMENDMENTS
A. Amendment as A Matter Of Right
(Sec.2)
1. Before an answer is filed
2. Before a reply is file or before the
period of filing a reply expires

3. Anytime within 10 days after it is


served
4. In case of formal amendments
The right of a plaintiff to amend his
pleading once as a matter of right before a
responsive pleading is served, has been
held to be one which the court should
always grant, otherwise, mandamus will
lie against it since it is a ministerial duty
of the court to accept amendment as a
matter of right (Ong Peng v Custodio, GR
No.L-14911, 1961).
Notes:
1. A motion to dismiss is not a
responsive
pleading; hence, the
plaintiff can still amend his complaint
as a matter of right.
2. If the purpose of amendment is to
confer jurisdiction upon the court,
then the court cannot admit the
amended complaint.
The lower court has neither the power
nor the jurisdiction to act on the
motion for the admission of the
amended complaint, much less to
allow such amendment. The court
must first acquire jurisdiction over the
case in order to act validly therein
(Rosario v Carandang, GR No.L-7076,
1955).
3. The cause of action must exist at the
time of the action was begun,
otherwise, amendment to introduce a
cause of action which had no
existence when the action was
commenced will not be allowed
(Surigao Mine Exploration Co. v Harris,
GR No.L-45543, 1939).
B. Amendment By Leave Of
(Sec.3)
1. Amendment is substantial

Court

65

66
2. Responsive pleading has already
been served
Requisites: (MNO)
1. Party must file a motion in court
2. Adverse party must be notified
3. Adverse party must be given
opportunity to be heard.
Amendment By Leave of Court NOT
Allowed:
1. Cause of action, defense or theory
of the case is changed
2. Amendment is intended to confer
jurisdiction to the court
3. Amendment seeks to cure the
defect in the cause of action
4. Amendment is made with intent to
delay
Amendment may be made despite
substantial change in the cause or
defense if such will serve the higher
interest of justice or prevent delay and
promote a just, speedy and inexpsenive
disposition of the case (Valenzuela v CA).
Lack Of Cause Of Action
Not Amendable
1. The cause of
action has not yet
accrued when the
action
was
commenced.
2.
Cannot
be
cured
by
amendment since
cause of action
must exist at the
time
of
the
commencement of
the action.

Amendable
1. The cause of
action has already
accrued
but
was
imperfectly stated
2.
Curable
amendment.

by

C. Formal Amendments. (Sec.3.)


Formal defects in the designation of
the parties or other clearly clerical or

typographical
errors
may
be
summarily corrected by:
1. The court motu proprio
2. On motion by the party
Provided no prejudice is caused
to the adverse party.
D. Amendments To Conform To Or
Authorize
Presentation
Of
Evidence. Refer to (Sec.5)
1. Amendment to conform to
evidence
May be granted upon motion of
any party at any time or even
before judgment when issues not
raised by the pleadings are tried
with express or implied consent of
the parties.
2. Amendment
to
authorize
presentation of evidence
When issues not raised by the
pleadings are tried with express or
implied consent of the parties,
amendment may be allowed by the
court if the presentation of the
merits of the action and ends of
substantial justice will be served.
E. Amendment v Supplemental
Pleading
Supplemental Pleadings. (Sec.6)
Those which aver facts occurring after the
filing of the original pleadings and which
is material to the mature claims and/or
defenses alleged therein.
Amended
Pleadings

Supplemental
Pleadings

AS TO ALLEGATIONS
Refer
to Refer
transaction,
transactions,
occurrences or occurrences

to
or

events
already events which have
existing at the happened since the
time of the filing date of the pleading
of the original sought
to
be
action.
supplemented.
AS TO RIGHT
Can be a matter
of right.
Always with leave of
Ex. when made court.
before
a
responsive
pleading
is
served.
AS TO FORM
A new copy of
the
entire
pleading
must No need to file but
be
filed must serve a copy to
incorporating
the court and the
the amendments adverse party.
and indicated by
appropriate
marks.
AS TO EFFECT
An
amended Original
pleading
pleading
stands.
supersedes the
original one.

F. Effect
of
Amended
Pleadings.
(Sec.8)
1. Amended pleading supersedes the
pleading which it amends.
2. Admissions in the superseded
pleading can still be received in
evidence against the pleader.
Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.

RULE 11

WHEN TO FILE RESPONSIVE


PLEADINGS
Q: When are the periods for filling an
answer?
A:
PLEADINGS

1.
ANSWER TO
COMPLAINT/TH
IRD PARTY
COMPLAINT

2.
ANSWER OF A
DEFENDANT
FOREIGN
PRIVATE
JURIDICAL
ENTITY

PPERIOD
General Rule: 15 DAYS
AFTER SERVICE OF
SUMMONS (Sec.1 , Rule
11)
RULE ON SUMMARY
PROCEDURE: 10 DAYS
AFTER SERVICE OF
SUMMONS (Section 5,
Rule 14).
1. RESIDENT AGENT :
15
DAYS
AFTER
SERVICE OF SUMMONS
2.
GOVERNMENT
OFFICIAL DESIGNATED
BY LAW TO RECEIVE
SUMMONS:
30 DAYS AFTER THE
RECEIPT OF SUMMONS
BY FOREIGN PRIVATE
JURIDICAL ENTITY
3.
OFFICERS
OF
AGENTS WITHIN THE
PHILIPPINES:
15 DAYS AFTER THE
SERVICE OF SUMMONS
4.
NON-RESIDENT
DEFENDANT ON WHOM
EXTRATERRITORIAL
SERVICE OF SUMMONS
IS MADE:
THE

PERIOD

TO

67

68
ANSWER SHOULD
AT LEAST 60 DAYS.

BE

PARTICULARS
DENIED
8.
REPLY

3.
AMENDED
COMPLAINT

1.
Amended
as
a
matter of right:
15
DAYS
AFTER
SERVICE OF AMENDED
COMPLAINT.
2. Amended not as a
matter of right:
10 DAYS FROM NOTICE
OF ORDER ADMITTING
AMENDED COMPLAINT.
3.Complaint amended
pursuant to court order
after denial of motion
to dismiss:

4.
COUNTERCLAIM
AND CROlSSCLAIM
5.
SUPPLEMENTAL
COMPLAINT
6.
COMPLAINT-ININTERVENTION
7.
MOTION TO
DISMISS /
MOTION FOR
BILL OF

WITHIN THE TIME TO


ANSWER AS PROVIDED
FOR
IN
RULE
11
COUNTED
FROM
SERVICE
OF
THE
AMENDED PLEADING.
(Sec.4, Rule 16)
10
DAYS
FROM
SERVICE
OF
COUNTERCLAIM
ORcCROSS-CLAIM.
10 DAYS FROM NOTICE
OF ORDER ADMITTING
SUPPLEMENTAL
COMPLAINT
15 DAYS FROM NOTICE
OF ORDER ADMITTING
THE
COMPLAINT-ININTERVENTION.
BALANCE OF PERIOD
UNDER RULE 11 BUT
IN NO CASE LESS THAN
5 DAYS (Sec. 4, Rule 16,
Sec 5 Rule 12)

10
DAYS
FROM
SERVICE
OF
THE
ANSWER (Sec.6, Rule
11)

PERIODS OF FILING OF RESPONSIVE


PLEADINGS
1.Answer to complaint (Sec.1) 15 days
from service, unless different period is
fixed by the law.
A non-resident defendant on whom
extraterritorial service of summons is
made - the period to answer should be at
least 60 days.
2.Answer to amended complaint (Sec.3)
Answer earlier filed may be answer to
amended complaint, if no new answer
is filed.
Applicable to amended counterclaim,
cross, third, etc,
3.Answer to counterclaim or crossclaim (Sec.4) - within 10 days from
service
General
rule:
An
answer
to
counterclaim or cross claim is
required. Failure to answer is ground
for default.
Exceptions: (in case of counterclaim)
a. Where answer would be a
repetition of allegations in the
complaint (Navarro v. Bello, L11647 January 31, 1958);
b. Where the issues raised in the
counterclaim are inseparable
from those posed in the

complaint (Sarmiento v. Juan,


No. 56605 January 28, 1983);
c. A plaintiff who fails or chooses
not to answer a compulsory
counterclaim
may
not
be
declared in default, principally
because the issues raised in the
counterclaim
are
deemed
automatically joined by the
allegations in the complaint
(Gojo v. Goyala, G.R. No. L26768, 30 October 1970).

amendment before judgment.


Extension of time to plead (Sec.11)
Requisites:
1. That the party files a motion for
extension;
2. The terms are just; and
3. Service of such motion must be
given to the other party.

RULE 12
BILL OF PARTICULARS

5.Answer to third (fourth, etc.)-party


complaint (Sec.5)- within 15 days from
service.

Section 1. When applied for; purpose.

6. Reply (Sec.6) may be filed within 10


days from service of the pleading
responded to.

A: A bill of particulars is a definite


statement of any matter which is not
averred with sufficient definiteness or
particularity in a pleading so as to enable
the opposing party to properly prepare his
responsive pleading (Sec.1,Rule 12).

7. Answer to supplemental complaint


(Sec.7)- within 10 days from notice of the
order admitting the same, unless a
different period is fixed by the court.
NOTE: The answer to the complaint shall
serve as the answer to the supplemental
complaint if no new or supplemental
answer is filed.
8. Counterclaim or cross-claim arising
after answer (Sec.9)
It may, with permission of the court, be
presented as such by supplemental
pleading before judgment.
9. Omitted counterclaim or cross-claim
(Sec.10)
When a pleader fails to set up a
counterclaim or cross claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, he may,
by leave of court, be set up as such by

Q: What is a bill of particulars?

PURPOSE: Aid in the preparation of a


responsive pleading.
An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant is
to move for a bill of particulars or avail of
the proper mode of discovery (Galeon v.
Galeon, G.R. No. L-30380, Feb. 28, 1973).
If the pleading is not only indefinite or
ambiguous but fails to state a cause of
action, the remedy of the party is to file a
motion to dismiss on the ground that the
pleading states no cause of action.
(Primer-Reviewer on Remedial Law, Vol.I,
Civil Procedure, Riguera, 2nded., 2013)
II. WHEN APPLIED FOR:
Q: Within what time may a motion for

69

70
a bill of particulars be filed?
A: The motion for bill of particulars shall
be filed before responding to a pleading.
Hence, it must be filed within the period
granted by the Rules (Rule 11) for the
filing of a responsive pleading.
THE MOTION SHALL POINT OUT:
1. The defects complained of;
2. The paragraphs wherein they are
contained; and
3. The details desired.
The motion must comply with the
requirements for motions under Sec. 4, 5
and 6 of Rule 15. Otherwise the motion
will not suspend the period to answer
(Filipino Fabricator v. Magsino, G.R. No.
47574, Jan. 29, 1988).
Q: What is the remedy of a party if the
adverse
party's
pleading
contain
allegations which are not averred with
sufficient definiteness or particularly
so that he cannot properly prepare his
responsive pleading?

Period to comply with order granting


the motion: Ten (10) days from notice of
order unless a different period is fixed by
the court.
The Bill of Particulars may be filed either
in a separate or in an amended pleading,
serving a copy thereof on the adverse
party.
SECTION 4. EFFECT OF NONCOMPLIANCE
1. If the Order is not obeyed or in case of
insufficient compliance therewith, the
court:
a. May order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. Make such order as it may deem just.
2. If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice UNLESS otherwise ordered by
the court (Rule 12, Sec. 4; Rule 17, Section
3);

A:
He may file a motion for bill of
particulars. However, if the pleading is not
only indefinite or ambiguous but fails to
state a cause of action, the remedy of the
party is to file a motion to dismiss on the
ground that the pleading states no cause
of action.

3. If defendant fails to obey, his answer


will be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff (Rule
12, Section 4; Rule 17, Section 4; Rule 9,
Sec. 3).

Section 2. ACTIONS OF THE COURT

Section 5. EFFECT ON THE PERIOD TO


FILE A RESPONSIVE PLEADING

THE COURT MAY EITHER:


1. Deny;
2. Grant it outright; or
3. Allow the parties the opportunity to be
heard.
Section 3. COMPLIANCE WITH THE
ORDER

Stay of Period to File Responsive


Pleading
EFFECTS OF MOTION:
1.If the motion is granted, in whole or in
part, the movant can wait until the bill of
particulars is served on him by the
opposing party and then he will have the

balance of the reglementary period within


which to file his responsive pleading; and
2.If his motion is denied, he will still
have such balance of the reglementary
period to file his responsive pleading,
counted from service of the order denying
his motion.
In either case, he shall have not less
than 5 days to file his responsive
pleading.
Section 6. BILL A PART OF PLEADING
A bill of particulars becomes part of the
pleading for which it is intended.

RULE 13
FILING AND SERVICE OF
PLEADINGS
CONDITIONS PRECEDENT TO FILING A
COMPLAINT
1. Barangay Conciliation (Secs. 399422, Local Government Code)
2. Intra-Family Dispute
3. Investigation by a fiscal is a
prerequisite to annulment of
marriage when defendant defaults
(Art. 151, Family Code);
4. No suit shall be filed between
members of the same family
unless it should appear that
earnest efforts at compromise
have been made but that the same
have failed (Art. 2035, Civil Code).
Citizens Suit (Sec. 41, Clean Air
Act);
5. Doctrine
of
Exhaustion
of
Administrative Remedies (DEAR);

Doctrine of Primary Jurisdiction;


6. Referral to Arbitration (Sec. 41,
ADR Act of 2004);
7. Payment of Docket Fees (Sec. 1,2,
& 21 (a), Rule 141; Sec. 1, Rule
111).
Payment of Docket Fees
General Rule: Docket fees must be paid
at the commencement of the action.
Exceptions: When docket fees need not
be paid at the time of filing and may be
considered a lien on the judgment in the
following instances:
1. The damages or claim arose after
the filing of the complaint or if the
court awards damages not prayed
for in the complaint (Original Devt
& Construction Corp. v CA, 202
SCRA 75; Rule 141, Sec.2.).
2. Indigent
litigant
(Rule
141,
Sec.19).
3. Failure of the adverse party to
timely
raise
the
issue
of
nonpayment of the docket fee
(National Steel Corp v CA, GR
No.123215, 1999).
4. Civil action instituted with the
criminal action where the moral,
exemplary, nominal and temperate
damages are not specified in the
complaint or information (Rule
141, Sec.1).
5. Petition for a writ of amparo shall
be exempt from the payment of
docket and other filing fees (Sec.1,
Rule on Writ of Amparo).
A. Section 2. Filing vs. Service Of
Pleadings
Filing the act of presenting the

71

72
pleading or other paper to the clerk of
court.
Proof of Filing
General Rule: The filing of the
pleading shall be proved by its
existence in the record of the case.
(Rule 13, Sec.12.)
Exceptions:
1. Filed Personally the filing shall be
proved by the written or stamped
acknowledgment of its filing by the
clerk of court on a copy of the same.
2. Filed by Registered Mail the registry
receipt and the affidavit of the person
who did the mailing, containing a full
statement of:
a. The date and place of depositing
the mail in the post office in a
sealed envelope addressed to the
court
b. With stamped fully prepaid
c. With instructions to return the
mail to the sender after 10 days if
undelivered.
Service the act of providing a party
with a copy of the pleading or paper
concerned.
General Rule:
If the party appeared by counsel, the
service shall be through his counsel or
one of them unless otherwise ordered by
the court.
Exceptions:
1. Doubtful as to the counsel of such
party
2. When counsel cannot be found
3. Party is directed to do something
personally as when he is ordered to
show cause

NOTE: Where a party is represented by a


counsel, service should be made upon the
counsel and not the party himself and
that the reglementary period should be
reckoned from service upon the counsel.
Appeal in this case should be reckoned
not from the formal notice to the counsel
but upon the actual notice to him (Hernal
v De Guzman, GR No. 181568, 2008).
(Doctrine of Actual Notice)
In case of request for admission, it must
be served directly upon the party cannot
be deemed to have admitted the
genuineness of any relevant matters of
fact set forth therein on account of failure
to answer the request for admission. A
request for admission must be served on
the party himself, not his counsel
(Lanada v CA, GR No. 102390, 2002).
B. Section 4. Papers required to be
filed and served.
1. Judgment;
2. Resolution;
3. Order;
4. Pleading subsequent to the
complaint;
5. Written motion;
6. Notice;
7. Appearance;
8. Demand;
9. Offer of judgment; or
10. Similar papers
C. Periods of Filing of Pleadings
Refer to Rule 11.

copy between 8am


and 6pm at the
partys
or
counsels
residence,
if
known, with a
person
of
sufficient age and
discretion residing
therein.

D. Section 3. Manner of Filing

1. Personal the clerk of court shall


endorse on the pleading the date
and hour of filing.
Registered Mail the date of mailing as
shown by the post office stamp on the
envelope or the registry receipt shall be
considered the date of their filing,
payment or deposit in court. The envelope
shall be attached to the record of the
case.
NOTE: If a party avails the services of a
private carrier, the date of actual receipt
by the court of such pleading and not the
date of delivery to the private carrier is
deemed to be the date of the filing of that
pleading (Benguet Electric Cooperative,
Inc. v NLRC, GR No. 89070, 1992).

2. Service By Mail.
(Rule 13, Sec.7)

E. Section 5. Modes of Service


Service of pleadings, motions, notices,
orders, judgments and other papers shall
be made either personally or by mail.

b. Ordinary Mail
if no registry
service is available
in the locality of
either the sender
or the addressee.

MODES OF SERVICES

1. Personal Service
(Rule 13, Sec.6)

1. By delivering
personally a copy
to the party or his
counsel.
2. By leaving it in
his office with his
clerk or with a
person
having
charge thereof.
If no person is
found in his office,
or his office is
unknown, or he
has no office.
3. By leaving a

a.
Registered
Mail made by
depositing a copy
in the post office,
addressed to the
party
or
his
counsel
at
his
office, if known,
with instructions
to the postmaster
to return the mail
to the sender after
10
days
if
undelivered.

3.
Substituted
Service. (Rule 13,
Sec.8)

If service cannot
be made personal
or by mail, service
may be made by:
a. Delivering a
copy to the clerk
of court
b. With proof of
failure of both
personal service
and service by

73

74
mail.

Note: Under Rule


3, Sec.3 of the
Rules of Procedure
on
Corporate
Rehabilitation
(2008) and Sec.6
od the Interim
Rules of Procedure
Governing IntraCorporate
Controversies, any
pleading
and/or
document
required by the
said rules may be
filed
with
the
court
and/or
served upon the
other parties by
fax or email if so
authorized by the
court.
In such case, the
date
of
transmission shall
be deemed to be
prima facie the
date of service
(Riguera,
PrimerReviewer
on
Remedial
Law,
Civil
Procedure,
Vol.I, 2015).
4.
Service
of
Judgments, Final
Orders
or
Resolutions. (Rule
13, Sec.9)

a. Personal
Service
b. Registered
mail
c. Publication, if
the party is
summoned by

publication
and has failed
to appear in
the action.

Priorities In Modes of Service And


Filing
General Rule: Whenever practicable,
service and filing shall be done
personally.
Exception: Papers emanating from the
court.
Notes:
1. A resort to other modes must be
accompanied by a written explanation
why the service or filing was not done
personally. Otherwise, the paper shall
be considered not filed.
2. Non-compliance with Rule 13, Sec.11
may consider the paper as not filed.
F. When Service Is Deemed Complete
(Rule 13, Sec.10)
and Proof of Filing and Service (Rule
13, Sec. 12 & 13.)
Proof of Filing
The filing of pleading or paper shall be
proved by its existence in the record of the
case.

MODES OF SERVICE
1. Personal Service

WHEN DEEMED
COMPLETE
complete upon actual
delivery

PROOF OF FILING
Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.

PROOF OF
SERVICE
1.Written
admission of the
party served
2.Official return
of the server
3.Affidavit of the
party
serving
containing a full
statement of the
date, place and
manner
of
service.

2. Service by
Ordinary Mail

complete
upon
expiration of 10 days
after mailing
Unless
otherwise
provided

Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.

Affidavit of the
person
mailing
stating the facts
showing
compliance with
Rule 13, Sec. 7.

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76
3. Service by
Registered Mail

Complete upon actual


receipt by the addressee
or after 5 days from the
date he received the
notice
from
the
postmaster, whichever is
earlier.

1. By registry receipt
;and
2. By affidavit of the
person who did the
mailing with a full
statement of:

Affidavit showing
compliance with
Rule 13, Sec. 7
and the registry
receipt issued by
the
mailing
office.

a. date and place of


depositing the mail
in the post office in a
sealed
envelope
addressed to the
court;
b. with postage fully
prepaid
c. with instructions
to the postmaster to
return the mail to
the sender after 10
days if not delivered.
Complete at the time of
such delivery.

4. Substituted
Service

_____________
A: To serve as constructivenotice to those
not parties to the case that the real
property is the subject of a pending
litigation.

G. Section
PENDENS

14.

NOTICE

OF

LIS

Q: What is a notice of lis pendens?


A: It is a notice of the pendency of a real
action which the plaintiff or the defendant
may record in the office of the registry of
deeds where the property subject of the
action is situated. (Riguera, PrimerReviewer on Remedial Law, Vol1.,
2015,page 270)
Q: What is the purpose of a notice of lis
pendens?

The
Notice
Following:

Shall

Contain

The

1. Names of the parties.


2. Object of the action or defense.
3. Description of the property in the
province affected thereby (Section
14).
Q: May a notice of lis pendens be
registered in respect of unregistered
property?
A: Yes, pursuant to Sec, 113(d) of PD
1529. The notice of lis pendens shall be

recorded by annotation on the space


provided therefore in the Registration
Book.

Summons
It is a writ by which the defendant is
notified of the action brought against him.

CONSTRUCTIVE NOTICE
Only from the time of filing such notice
for record shall a purchaser, or
encumbrancer of the property affected
thereby, be deemed to have constructive
notice of the pendency of the action, and
only of its pendency against the parties
designated by their real names.

Jurisdiction over the person of the


defendant in a civil case is acquired either
by his voluntary appearance or service of
summons upon him (Municher v CA, GR
No.142963, 2003).

NOTICE OF LIS PENDENS MAY BE


CANCELLED IN THE FOLLOWING
CASES:
1. Upon order of the court after proper
showing that the notice is for the purpose
of molesting the adverse party, or that it
is not necessary to protect the rights of
the party who cause it to be recorded
(Section 14, Rule 13).

2. By the register of deeds, upon verified


petition of the party who caused its
registration (Sec. 77,PD 1529).
3. After final judgment in favor of the
defendant or other disposition of the
action such as to terminate finally all
rights of the plaintiff in and to the land
and/or building involved, upon the
registration with the register of deeds of a
certificate of the clerk of court in which
the action or proceeding was pending
stating the manner of the disposal
thereof.(Sec. 77, PD 1529)

RULE 14
SUMMONS

Under Rule 14, sec.15, service of


summons only confers jurisdiction over
the res and not over the person of the
defendant:
1. Action in Personam
a. To acquire jurisdiction over the
person of the defendant.
2. Action in Rem or Quasi in Rem
a. To give notice to the defendant
that
an
action
has
been
commence against him
b. To afford the defendant an
opportunity to be heard on the
claim against him.
Notes:
1. Old Rule: the distinction between
the natures of actions was
important for it determines the
mode of service of summons to be
made.
In Santos v PNOC, GR No.170943,
2008, SC held that the in rem or
in personam distinction was
significant because it was silent as
to the kind of action to which the
rule was applicable. Because of
this silence, the court limited the
application of the old rule to in
rem actions only.

Nature and Purpose Of Summons In


Relation To Actions In Personam, In
Rem And Quasi In Rem

77

78
2. Present Rule: states that it is applied
to any action where the defendant is
designated as unknown owner, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained
by diligent inquiry.
It is now applied to any action in
personam, in rem or quasi in rem.
SERVICE
OF
PLEADING,
JUDGMENT
ORDERS
RULE 13
1.
Failure
of
personal service or
service
by
registered
mail
allows service to
the clerk of court
(Substituted
Service).

2. There is service
by registered mail.

SERVICE
SUMMONS
RULE 14

OF

1. In case of failure
of personal service,
summons
should
be:
a. served at the
residence of the
defendant
with
some person of
suitable age and
discretion residing
therein, or
b. by leaving copies
at the defendants
office or regular
place of business
(Substituted
Service).
2. No Service by
registered mail.

Section 1. Clerk to issue Summons


Requisites:
1. Filing of the complaint
2. Payment of the corresponding legal
fees
Section 2. Contents
1. Name of the court and names of the
parties to the action

2. A direction for the defendant to


answer within the time fixed
3. A notice that unless the defendant so
In case the
In case the
defendant had
defendant had
NOT yet
already APPEARED
appeared:
and in court when
amended
complaint was
filed:
A new summon Ordinary service of
must be served that
pleading,
upon
him
as personally
or
regards
the registered
mail,
amended
would be sufficient
complaint,
and
no
new
otherwise
the summons need be
court would have served.
no power to try
the new causes of (Ong v Custodio, GR
action
alleged No.L-14911, 1961).
therein, unless he
had submitted an
answer.
answers, the plaintiff will take
judgment by default and may be
granted the relief applied for.
To Whom Directed.(Sec.2)
It is directed to the defendant, signed by
the clerk of court under seal of his office.
By Whom Served(Sec. 3)
1. Sheriff
2. Sheriffs Deputy
3. Other proper court officer
4. Any suitable person authorized by
the court for justifiable reasons.
Note: The list is exclusive. Hence,
stenographers are not proper court
officers since their function do not relate
to the service of summons and court
processes.

NOTES:
1. Simply sending a copy of the
amended
complaint
to
the
defendant by registered mail is not
equivalent to service of summons
(Ong v Custodio, GR No.L-14911,
1961).

1. Personal Service. (Rule 14, Sec.6)


2. Substituted Service. (Rule 14,
Sec.7)
3. Summons by Publication. (Rule 14,
Sec. 14-16)
4. Extraterritorial service of summons
(Rule 14, Sec. 15)

2. The service upon the defendant a


copy of the court order admitting
the later pleading together with a
copy thereof is not the process
required for bringing him to court
(Fetalino v Sanz, GR N.L-19993,
1923).

Personal Service. (Sec. 6)


1. By handing a copy to the defendant
2. By tendering it to him, should he
refuse to receive it.

When to Serve Summons


Service of summons may be made at
night or on a holiday because of its
ministerial character (Laus v CA, GR No.
101256, 1993).
Return (Sec. 4)
The server shall:
1. Within 5 days after the service of
summons has been completed
2. Must serve a copy of the return to
the plaintiffs counsel personally or
by registered mail
3. Shall return the summons to the
clerk who issued it accompanied by
proof of service.
This will enable the plaintiffs
counsel to move for default order
should defendant fail to answer on
time or in case of non-service,
alias summons may be effected.
Issuance of Alias Summons (Sec. 5)
1. The summons is returned without
being served on any or al of the
defendants.
2. Summons had been lost.
MODES OF SERVICE OF SUMMONS
(PSSE)

Substituted Service. (Sec. 7)


1. Leaving copies of the summons at
the defendants residence with
some person of suitable age and
discretion then residing therein
2. By leaving copies at the defendants
office or regular place of business
with some competent person in
charge thereof.
Requisites
Service:

ForA

Valid

Substituted

1. Personal service of summons within


a reasonable time was possible.
Q:What is a reasonable time for the
sheriff to effect a personal service in
order to demonstrate impossibility of
prompt service?
A:Reasonable time is determined by a
case- to-case basis. One month from the
issuance of summons can be considered
"reasonable time" with regard to personal
service on the defendant (Manotoc v. CA,
G.R. No. 130974, August 16, 2006).
2. Diligent efforts were exerted to
locate the party
For substituted service of summons to
be available, there must be several

79

80
attempts by the sheriff to personally
serve
the
summons
within
a
reasonable period of one month which
eventually resulted in failure to prove
impossibility of prompt service.

faithfully, and fully and any substituted


service other than that authorized by the
Rules is considered ineffective.

"Several Attempts means at least 3


tries, preferably on at least two
different dates. In addition, the sheriff
must cite why such efforts were
unsuccessful. It is only then the
impossibility of service can be
confirmed or accepted (Manotoc v CA,
GR No.130974, 2006).

The Supreme Court has held that an


overly strict application of Rule 14, Sec.7
may be dispensed with if the sheriff was
prevented from effecting substituted
service by the defendant himself or by the
latters own acts.

3. The summons was served upon a


person of sufficient age and discretion
residing at the partys residence or
upon a competent person in charge of
the partys office or place of business.
4. The sheriffs return must specify his
efforts to apply service in person.
SUBSTITUTED SERVICE OF SUMMONS
may still be considered as valid even if the
sheriff failed is state in his return of facts
of the impossibility of prompt service, if
the serve subsequently explains in court
by giving a testimony.
RULE ON COMPLIANCE
General Rule: Strict Compliance Rule
Modes of service must be strictly followed
in order that the court may acquire
jurisdiction over the person of the
defendant (Riano, 2011).
Under the procedural rules, service to the
person of the defendant is generally
preferred over substituted service, the
latter mode of service being a method
extraordinary in character. Hence, the
statutory requirements of substituted
service
must
be
followed
strictly,

Exception: Substantial Compliance

In his Return, the Sheriff declared that he


was refused entry by the security in the
subdivision twice as the defendant
prohibits the latter from allowing anybody
to proceed to her residence whenever she
is out. Obviously, it was impossible for the
sheriff to effect personal or substituted
service of summons upon defendant.
Considering her strict instruction to the
security guard, she must bear its
consequences. It can be considered that
summons was properly served (Robinson
v Miralles, GR No.163584, 2006).

Constructive Service (By Publication)


(Secs. 14-16)
Requires leave of court:
1. Service
upon
defendant
whose
identity or whereabouts are unknown.
(Rule 14, Sec.14)
2. Extraterritorial
service
upon
a
nonresident defendant. (Rule 14,
Sec.15)
3. Service upon a resident temporarily
out of the Philippines. (Rule 14,
Sec.16)
In case a resident defendants identity
or his whereabouts are unknown. (Rule
14, Sec.14)

Summons may be served through


publication upon a resident defendant
whose whereabouts are unknown and
cannot be ascertained by diligent inquiry.
Any
action
includes
actions
personam, in rem and quasi in rem.

in

In case of residents temporarily


outside the Philippines. (Rule 14,
Sec.16)
Summons may be served through:
1. Substituted service or
2. With leave of court, Personal service
out of the Philippines under Rule 14
Sec. 15.
3. By publication
Note: Extraterritorial service is not
mandatory since Sec.16 uses the word
may and thus substituted service of
summons may be resorted to (Palma v
Galvez, 2010; cited in Riguera, 2013).
Extraterritorial Service. (Rule 14, Sec.
15)
By extraterritorial service, the court
acquires jurisdiction over the res and not
over the person of the nonresident
defendant.
When allowed:
1. Action relates to property within the
Philippines
a. In which the defendant has or
claims a lien or interest
b. In which the relief demanded
consists
of
excluding
the
defendant
from
any
interest
therein
2. An action wherein the property of the
defendant has been attached within
the Philippines.

Note: All actions must be against a


nonresident defendant who is not found
in the Philippines.
Modes of Extraterritorial Service
1. Personal Service - outside the
Philippines
2. Publication in a newspaper of
general circulation
Note: In such case, a copy of the
summons and order of the court shall be
sent by registered mail to the known
address of the defendant.
3. Any other manner the court may
deem sufficient
Note: Extraterritorial service may be
validly served by telefax or email as the
rule provides in any other manner the
court may deem sufficient.
Section 17. Leave of Court.
1. Must be made by a motion in writing
2. Supported by affidavit of the plaintiff
or some person on his behalf
3. Set forth the grounds for the
application.
SERVICE OF SUMMONS ON
DIFFERENT ENTITIES
ENTITY TO
SERVED

BE

1.SERVICE UPON
ENTITY
W/O
JURIDICAL
PERSONALITY
(SEC.8)
2.SERVICE UPON
PRISONERS
(SEC.9)

TO
WHOM
SERVICE
SHOULD
BE
MADE
1. All defendants
by serving any of
them; or
2. The person in
charge
of
the
office or place of
business
Upon the officer
having
the
management
of
such
jail
or

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82

3.SERVICE UPON
MINORS
AND
INCOMPETENTS
(SEC.10)

institution (special
sheriff or warden)
In
case
of
minors:
upon
such
minor
personally and on
his legal guardian,
if he has any or
guardian ad litem,
if applied for by
the plaintiff. The
minors father or
mother may also
be served.
In
case
of
incompetents:
upon
such
incompetent
personally and his
legal
guardian,
but
not
his
parents,
unless
they are also his
legal guardians.

4.SERVICE UPON
DOMESTIC
PRIVATE
JURIDICAL
ENTITY (SEC.11)

In either case: if
the
minor
or
incompetent has
no legal guardian,
plaintiff
must
obtain
the
appointment
of
guardian ad litem.
1. President;
2.
Managing
partner;
3.
General
manager;
4.
Corporate
secretary;
5. Treasurer; or
6.
In-house
counsel.
NOTE:

The

5.
SERVICE
UPON FOREIGN
PRIVATE
JURIDICAL
ENTITY (SEC.12)

6.
SERVICE
UPON
PUBLIC
CORPORATIONS.
(SEC.13)

7.
SERVICE
UPON
DEFENDANT
WHOSE
IDENTITY
OR
WHEREABOUTS
ARE
UNKNOWN
(SEC.14)
8.
EXTRATERRITO
RIAL
SERVICE
(SEC.15)

enumeration
is
exclusive.
1. Resident agent
(appointed by the
entity to receive
legal processes);
2. In the absence
thereof, on the
government
official designated
by law; or
3. Any of its
officers or agents
within
the
Philippines.
If the defendant
is the Republic of
the Philippines:
Solicitor General
If defendant is a
province, city or
municipality or
other
public
corporations:
Executive head or
such
other
officer/s
designated under
the law or directed
by the court.
Service may, with
leave of court, be
effected upon the
defendant
by
publication in a
newspaper
of
general
circulation.
1. With leave of
court, by personal
service
outside
the Philippines;
2. With leave of
court,
by
publication in a

9.
SERVICE
UPON
RESIDENTS
TEMPORARILY
OUT
OF
THE
PHILIPPINES
(SEC. 16)

newspaper
of
general
circulation.
In
such case, a copy
of the summons
and order of the
court shall be sent
by registered mail
to the last known
address of the
defendant; or
3.
Any
other
manner the court
may
deem
sufficient.
1.
By
extraterritorial
service; or
2. By substituted
service (Montalban
v. Maximo, G.R.
No.
L-22997,
March 15, 1968)

Section 18. Proof of Service


1. In writing by the server
2. Set forth the manner, place and date
of service
3. Specify any papers which have been
served with the process and the
name of the person who received the
same
4. Must be sworn to when made by a
person other than a sheriff or his
deputy.
Section 19. Proof of Service by
Publication
1. Affidavit of the:
a. printer
b. his foreman
c. principal clerk
d. editor
e. business or advertising manager
to which affidavit, a copy of the
publication shall be attached

2. An affidavit showing the deposit of a


copy of the summons and order for
publication in the post office, postage
prepaid, directed to the defendant by
registered maul to his last known
address.
Remedies of Defendant if Service is
Defective:
1. File a Special Appearance with motion
to dismiss on the ground of improper
service of summons and lack of
jurisdiction (E.B. Villarosa & Partner
Co. Ltd. V Judge Benito, GR
No.136426, 1999).
2. If denied, defendant may file a petition
for certiorari under Rule 65.
Q: What is a Long-Arm Statute?
A: A law or rule that allows a court to
exercise
personal
jurisdiction
over
nonresident defendant, provided that the
defendant
has
sufficient
minimum
contracts with the forum state.
Rule 14, Sec. 15 does not provide for the
acquisition of personal jurisdiction over
the nonresident defendant. The rule
provides for the acquisition of jurisdiction
over the res which is situated in the
Philippines or quasi in rem jurisdiction.
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, 2015).
Section 20. Voluntary Appearance
Voluntary appearance by the defendant is
equivalent to service of summons.
Thus, even if the summons is defective,
jurisdiction over the defendant attaches.
EXAMPLES
OF
SUBMISSION
COURTS JURISDICTION:

TO

83

84
1. Filing a motion for extension to the file
a responsive pleading
2. The
filing
of
affirmative relief.

motions

seeking

motion to dismiss of other grounds aside


from lack of jurisdiction over the
defendant's person shall not be deemed a
voluntary appearance.

RULE 15

To admit answer, for additional time to


MOTIONS
file
answer,
Motion
Pleading
for
Praying
for Directly related to
another
relief the
cause
of Section 1. Definition.
Motion is an application for relief
other than the action or defense.
other than by a pleading.
main cause of
action or the
main defense.
Section 2. Form.
reconsideration of a default judgment
Motion must be in writing.
and to lift order of default with motion
for reconsideration (Oaminal v Castillo,
General Rule: All motions must be in
GR No. 152776, 2003).
writing.
OTHER
FORMS
APPEARANCE:

OF

VOLUNTARY

1. Appearance of counsel in behalf of


defendant
2. Filing of pleadings or papers in court
3. A
telegraphic
motion
for
postponement
4. The filing of a motion for dissolution of
attachment
5. The filing of a motion for extension of
time to file answer.
(Riguera, Primer - Reviewer on
Remedial Law, Vol. I, 2015, page 309)
Q: What is special appearance? Is there
still a need for a special appearance to
contest personal jurisdiction?
A: It is an appearance for the specific
purpose
of
questioning
personal
jurisdiction or the court's subject matter
jurisdiction.
The 1997 Rules of Civil Procedure have
eliminated the need for a special
appearance
to
contest
personal
jurisdiction since the inclusion in a

Exceptions:
1. Those made in open court
2. Those made in the course of hearing
or trial
REQUISITES FOR A VALID MOTION:
1. Must be in writing .(Section 2)
2. Shall state the relief sought to be
obtained and the grounds upon which
it is based
3. Shall be set for hearing by the
applicant and shall contain a notice of
hearing
4. The date of the hearing must not be
later than 10 days after the filing of
the motion
5. The motion and notice of hearing
must be served at least 3 days before
the date of hearing
6. There must be proof of service
Section 3. Contents
1. The relief sought to be obtained
2. The grounds upon which it is based
3. If required by the rules or necessary
to prove facts alleged therein, shall
be accompanied by supporting
affidavits and other papers.

4. If required by the rules or necessary


to prove facts alleged therein, shall be
accompanied by supporting affidavits
and other papers.

Q: What is the effect if a motion set for


hearing is without proof of service?

Section 4. Hearing of Motions.

Section 7. Motion Day.


General Rule: All motions shall be set for
hearing on Friday afternoons, or if Friday
is a non-working holiday, then in the
afternoon of the next working day.

General Rule: Every written motion shall


be set for hearing by the applicant.
Exception: Motions which the court may
act upon without prejudicing the rights of
the adverse party.
Three Day Notice Rule
General Rule: Every written motion shall
be served to the other party at least 3
days before the date of the hearing.
Exceptions:
1. For good cause, the court may set the
hearing on shorter notice
2. Ex parte motions such as judgment
on the pleadings, writ of preliminary
attachment, restraining order and
replevin
3. Motions agreed upon by the parties to
be heard on shorter notice or jointly
submitted by the parties
4. Motions for summary judgment which
must be served at least 10 days before
its hearing.
Section 5. Notice of Hearing.
Requirements:
1. Shall be addressed to all parties
concerned
2. Shall specify the time and date of the
hearing which must not be later than
10 days after the filing of the motion.
Section 6. Proof of Service Necessary.
No written motion shall be acted upon by
the court without proof of service thereof.

A: It shall not be acted upon by the court.

Exception: Motions requiring immediate


actions.
Section 8. Omnibus Motion Rule.
General Rule: A motion attacking a
pleading order, judgment or proceeding
shall include all objections then available
and all objections not so included shall be
deemed waived.
Exceptions: If objections are based on:
1. Lack of jurisdiction over the subject
matter
2. Litis pendentia
3. Res judicata
4. Prescription
LITIGATED AND EX PARTE MOTIONS
1. Litigious Motion (Litigated)
One which the court may not act
upon without prejudicing the rights of
the adverse party.
Made with notice to the adverse party
to give an opportunity to oppose.
Examples:
1. Motion for reconsideration,
2. Motion to dismiss,
3. Motion to declare defendant in
default,
4. Motion for execution
2. Non-litigious Motion (Ex Parte)

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86

One which the court may act upon


without prejudicing the rights of the
adverse party.
Made without the presence or a
notification to the other party because
the question generally presented is
not debatable.
Examples:
1. Motion for extension of time to file
answer
2. Motion for postponement
3. Motion to set case for pre-trial
4. Motion for extension of time to file
record on appeal
PRO-FORMA MOTIONS one which does
not satisfy the requirement of the rules
and one which will be treated as a motion
intended to delay the proceedings (Riano,
2015 citing Marikina Valley Dev't. Corp. v.
Hon. Flojo, G.R. No. 110801, December 8,
1995).

RULE 16
MOTION TO DISMISS
Section 1. Grounds.
1. Lack of jurisdiction over the
person of the defendant
2. Lack of jurisdiction over the
subject matter of the claim
3. Venue is improperly laid
4. Plaintiff has no legal capacity to
sue.
5. There is another action pending
between the same parties for the
same cause (Litis Pendentia)
6. Cause of action is barred by a
prior judgment or by statute of
limitations
(Res
judicata/
Prescription)
7. Lack of Cause of action.

8. Claim or demand in the plaintiffs


pleading has been paid, waived,
abandoned, extinguished
9. Claim on which action is founded
is unenforceable under the statute
of frauds.
10. Condition precedent for filing has
not been complied with (this
includesprior recourse to barangay
conciliation, or failure to make
attempts to reach a
compromise
in cases between members of the
same family)
General Rule: Such grounds which are
not pleaded are deemed waived.
Exception:
1. Lack of jurisdiction over the subject
matter
2. Re judicata
3. Litis pendentia
4. Prescription
General Rule: The court cannot motu
propio dismiss a case UNLESS a motion to
that effect has been filed by the adverse
party.
Exceptions:
1. Rule 9, Section 1 (Lack of jurisdiction
over the subject matter, res judicata, litis
pendentia, prescription);
2. Rule 17,
prosecute)

Section

(Failure

to

3. Section 4 of the Rules on Summary


Procedure (If the case filed falls under the
rules on summary procedure).
Section 2. Hearing of the Motion
General rule: On hearing on a motion to
dimiss, the defendant is allowed to
present evidence to prove the ground/s

Exception:
1.Lack of jurisdiction over the subject
matter
2.The pleading asserting the claim states
no cause of action

3.Order amendment of the pleading (in


case of failure to state a cause of action)
Ordered to be amended: The movant
shall file his answer within 15 days from
the service of the amended pleading,
unless the court provides a longer period.

The requirement under Section 2 Rule 15


is that in the hearing of the motion to
dismiss, the parties shall submit their
evidence on the questions of fact involved.
Hence, affidavits will not suffice to prove
factual questions.

Section 4. Time to Plead

Section 3. Resolution of Motion

When the period for filing the answer has


been suspended, as by defendants filing
of a motion for a bill of particulars, a
motion to dismiss may thereafter be filed
within the remaining period to file the
answer since the time to file the latter is
coterminous with that for the former
(Dumanan, et al. v. Butuan City Rural
Bank, et al., L-27675, Dec. 15, 1982).

1. Grant
2. Deny
3. Order of Amendment
1.Grant remedy of the plaintiff is to file
a motion for reconsideration, to appeal
from the order of dismissal or re-file the
complaint
2.Deny NOT appealable; but defendant
may file a motion for reconsideration or
petition for certiorari, or prohibition if the
court acts without or in excess of
jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
If motion to dismiss isDenied: The
movant shall file his answer within the
balance of the period under Rule 11, but
such period shall not be less than 5 days
in any event.
REMEDIES OF THE DEFENDANT WHEN
THE MOTION IS DENIED
The defendant may:
a. File a motion for reconsideration; or
b. File a petition for certiorari; or
c. Prohibition

Within the time for filing the answer but


before filing said answer, a motion to
dismiss may be filed on any of the
grounds mentioned in Sec. 1.

That the plaintiff has no legal capacity


to sue
Lack of legal capacity to sue means that
the plaintiff is either (a) not in the
exercise of his civil rights (does not have
the necessary qualification to appear at
the trial) or (b) does not have the
character or representation that he claims
(Lunsod v. Ortega, No. 14904 September
19, 1924; Regalado).
Lack Of Legal
Capacity To
Sue
1. Plaintiff does
not possess the
necessary
qualifications to
appear at the
trial.

Lack Of Legal
Personality to
Sue

Plaintiff is not a
real
party
in
interest.

Ex. Minor and

87

88
Insane, who are
incapable
to
exercise in full
their civil rights.
2. Plaintiff does
not have the
character
or
representation
which he claims.

LITIS PENDENTIA(PAR. E)
That there is another action pending
between the same parties for the same
cause.
REQUISITES OF LITIS PENDENTIA:
1. Identity of parties;
2. Substantial identity in the cause of
action and relief sought; and
3. Identity of both cases such that any
judgment that will be rendered in one
case (regardless which party succeeds),
will amount to res judicata in the other
case.
NOTE: The rule will apply once the
complaint is filed and there is a pending
action, lack of knowledge of filing if is of
no moment.
In case of litis pendentia, which one
should be dismissed?
General rule: The later case should be
dismissed based on priority in time rule
and comity with a co-equal court.
Exceptions:
1. The more appropriate action rule
the query is which the more appropriate
action is or which court would be in a
better position to serve the interests of
justice.

2. The Interest of Justice Rule in this


standard, what is asked is which court
would be in a better position to serve the
interests of justice taking into account the
nature of the controversy, the comparative
accessibility of the court to the parties,
and other similar factors.
3. The Anticipatory Rule the first case
shall be abated if it is merely an
anticipatory
action,
or,
more
appropriately, an anticipatory defense
against an expected suit.
RES JUDICATA(PAR. F)
That the cause of action is barred by a
prior judgment or by the statute of
limitations.
The rule that a final judgment or decree
on the merits by a court of competent
jurisdiction is conclusive of the rights of
the parties or their privies in all later
suits on all points and matters
determined in the former suit.
REQUISITES OF RES JUDICATA:
1. There must be a previous final
judgment;
2. The court which rendered it has
jurisdiction over the subject matter
and the parties;
3. There must be between the first and
second actions, identity of parties, of
subject matter and of causes of
action; and
4. The judgment must be on the
merits.
Instances where there is res judicata
even without trial
1. Judgment on the pleadings
(Rule 34);
2. Summary judgment (Rule 35);
3. Order of dismissal (Rule 17,
Section 3) on the ground of failure

to prosecute on the part of the


plaintiff;
4. Judgment
upon
compromise
agreement; and
5. Expropriation case where issue of
interest is not raised.
NOTE: The principle of res judicata
applies to all cases and proceedings,
including land registration and cadastral
proceedings (Republic v. Estenzo, L35376, Sept. 11, 1980).
DUAL ASPECTS OF RES JUDICATA

1.
BAR BY A PRIOR
JUDGMENT

2.
CONCLUSIVENESS
OF JUDGMENT

Bar By Prior

a
former
judgment
bars
the prosecution
of
a
second
action upon the
same
claim,
demand or cause
of action
issues
actually
and
directly
resolved
in
a
former
suit
cannot again be
raised
in
any
future
case
between the same
parties involving
a different cause
of action (also
known
as
preclusion
of
issues
or
collateral
estoppel) (Tan
v. CA, G.R. No.
14240,
August
20, 2001).

Conclusiveness

Judgment
Prior
case
is
conclusive not only
as to the matters
directly adjudge but
also to any other
matter that could
have been raised in
relation thereto.
There is identity in
the cause of action
in
both
cases
involved

of Judgment
Prior
case
is
conclusive only in
respect
of
the
matter
actually
raised
and
adjudged in the
prior case.

(Claim Preclusion) it
precludes
the
prosecution of a
second
cause
of
action
upon
the
same claim, demand
or cause of action.

(Issue Preclusion)
it precludes the
relitigation of a
particular fact or
issue in another
action between the
same parties on a
different cause of
action.

It
bars
relitiagtion of
case.

the
the

A ground for a
motion to dismiss.

The
cause
of
action in the first
case is different
from that in the
second case

It bars only the


relitigation of an
issue.
NOT a ground.

FAILURE TO STATE A CAUSE OF


ACTION
The insufficiency of cause of action must
appear on the face of the complaint.
Test of sufficiency of the facts alleged
in the complaint to constitute a cause
of action: Whether or not, admitting the
facts alleged, the court could render a
valid judgment upon the same in
accordance with the prayer in the
complaint.

89

90
Failure To State
Cause Of Action
1. Relates to the
failure
of
the
allegations of the
pleading to state a
cause of action.

2. Dismissal of
the complaint on
the
ground
of
failure to state a
cause of action
would not bar the
re-filing of the
complaint.

pleaded as affirmative defenses in the


answer and a preliminary hearing may be
had thereon in the discretion of the court.

Lack Of Cause Of
Action
1. Relates to a
failure of proof or
the
plaintiffs
failure to prove by
evidence
his
allegations relating
to his cause of
action.

BAR BY DISMISSAL
Q: If a motion to dismiss is granted,
may the plaintiff still refile the
complaint?
A: Yes, except if the ground for the
dismissal is prescription, unenforceability
of
the
claim,
res
judicata,
and
extinguishment of the claim (Keyword:
PURE. S5 R16. Plaintiff also has to pay
anew the docket and filing fees (PrimerReviewer on REMEDIAL LAW, Manuel R.
Riguera).

2. A judgment for
defendant on the
ground of lack of
cause of action
would amount to
res judicata.

A complaint which contains a premature


cause of action may be dismissed for
failure to state a cause of action.
(Erlanger & Galinger, Inc. v. Villamor, L8767, March 23, 1956)
Section 5. Effect of Dismissal
Complaint On Certain Grounds

of

MOTION TO
DISMISS
RULE 16
1. Filed before the
service and filing of
the answer

DEMURRER TO
EVIDENCE
RULE 33
1. Made after the
plaintiff rests his
case

2. Anchored on many
grounds

2. Anchored on one
ground plaintiff
has no right to
relief

3. If a motion to
dismiss is denied,
the defendant may
file his responsive
pleading

3. The defendant
may present his
evidence

General rule: The action may be re-filed.


Exceptions: The action can no longer be
re-filed if it was dismissed on the grounds
of:
1. Res judicata;
2. Extinguishment of the claim or
demand;
3. Prescription; or
4. Unenforceability of the claim
Section 6. When Grounds Pleaded As
Affirmative Defenses
If no motion to dismiss has been filed, any
of the grounds for dismissal may be

RULE 17
DISMISSAL OF ACTIONS
General Rule:
A complaint shall not be dismissed at the
plaintiffs instance save upon approval of
the court and on such terms and
conditions as the court deems proper.

Section 1. Dismissal Upon Notice By


Plaintiff: Two-Dismissal Rule
Two Dismissal Rule
When the same complaint had twice been
dismissed by the plaintiff under Sec.1 by
simply filing a notice of dismissal, the
second dismissal shall be with prejudice.

REQUISITES:
1. Filing of Notice of Dismissal
2. It must be made at any time before
the service of an answer or a motion
for summary judgment
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. The withdrawal does not take
effect until confirmed by the court.
The two-dismissal rule requires that both
dismissals are granted by a court of
competent jurisdiction.
Effect of Dismissal
General Rule:
prejudice.

Dismissal

is

without

Exceptions:
1. When in the notice of dismissal itself,
the plaintiff himself stated it is
dismissal with prejudice
2. Two-Dismissal Rule - Notice serves as
adjudication upon the merits when
filed by the
plaintiff who has once dismissed in a
competent court an
action based
on or including the same claim
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on the
fact of payment by the defendant of
the claim involved (Regalado).

What causes the loss by a plaintiff of he


right to effect dismissal of the action by
mere notice is the service on the plaintiff
of the answer or motion for summary
judgment. Where the plaintiff filed the
notice of dismissal of his action in the
court after the filing of defendants
answer but before service thereof, the
plaintiffs notice to that effect ipso facto
brought about the dismissal of the
pending action without need of any order
from the trial court (Go v Cruz et al., GR
No. 58986, 1983).
This section is also applicable to special
proceedings (Regalado).
If the plaintiff files a notice of dismissal
providing therein a reason that prevents
the refilling of the complaint, the
dismissal must be deemed one with
prejudice. This happens when the notice
provides that the plaintiff recognizes the
fact of prescription or extinguishment of
the obligation of the defendant or for
reason in Rule 16, Sec.5 (Riano).
Note: A class suit shall not be dismissed
or compromised without the approval of
the court. The reason is for the court to
protect the interests of the members of
the class (Riguera, Primer-Reviewer on
Remedial Law, Civil Procedure, 2015).
Dismissal upon Motion By Plaintiff:
Effect On Existing Counterclaim
Effects of the dismissal upon Motion of
the Plaintiff:
1. Dismissal is without prejudice unless
stated that dismissal is with prejudice
2. Dismissal is also limited to the
complaint and shall not prejudice the
right of the defendant to prosecute his
counterclaim in the same or separate
action.

91

92
Where the plaintiff moves for the
dismissal of his complaint to which a
counterclaim has been interposed, the
dismissal shall be limited to the
complaint.
Dismissal shall be without prejudice to
the right of the defendant to:
1. Prosecute his counterclaim in a
separate action
2. Have the same resolved in the same
action
Should the defendant opt for first
alternative, the court should render
the corresponding order granting and
reserving his right to prosecute his
claim in a separate complaint.
Should he choose to have his
counterclaim disposed of in the same
action wherein the complaint had
been dismissed, he must manifest
such preference to the trial court
within 15 days from notice to him of
plaintiffs motion to dismiss.
These alternative remedies of the
defendant are available to him
regardless if whether his counterclaim
is
compulsory
or
permissive
(Regalado).
EFFECT OF DISMISSAL TO
COMPULSORY COUNTERCLAIM

THE

1. The dismissal of the complaint


carries with it the dismissal of the
compulsory counterclaim.
If the counterclaim was pleaded by the
defendant after service upon him of the
plaintiffs motion for dismissal.
2. The dismissal shall be limited to
the complaint or defendant can

prosecute his counterclaim in a


separate action
If the counterclaim was pleaded by the
defendant before service upon him of the
plaintiffs motion for dismissal.
The defendant can revive the compulsory
counterclaim within 15 days from notice
of such motion.
Section 3. Dismissal Due to the Fault
of Plaintiff.
Grounds:
1. Plaintiff fails to appear on the date of
the presentation of his evidence in
chief
2. Plaintiff fails to prosecute his action
for an unreasonable length of time
3. Plaintiff fails to comply with the Rules
or any order of the court
How Made:
1. Upon motion of the defendant
2. Upon courts own initiative
Effects:
1. Dismissal shall have the effect of
adjudication upon the merits, unless
the court declares otherwise
2. Defendant can still prosecute his
counterclaim in the same or separate
action
Since the plaintiffs presence is now
required only during the presentation of
his evidence in chief, his absence during
the presentation of the evidence of the
defendant or other parties, or even at the
rebuttal or subsequent stages of the trial
is not a ground for dismissal.
Note: It is plaintiffs failure to appear at
the trial and not the absence of his
lawyer,
which
warrants
dismissal
(Regalado).

Section 4. Dismissal of Counterclaims,


Cross-claims or Third-Party Complaint
How made:
1. By notice of the claimant
2. Before a responsive pleading or a
motion for summary judgment is
served or if there is none, before the
introduction of evidence at the trial or
hearing.

RULE 18
PRE-TRIAL
CONCEPT OF PRE-TRIAL
PRE-TRIAL is a mandatory procedural
device by which the court is called upon,
after the filing of the last pleading, to
compel the parties and their lawyers to
appear before it for the purposes
enumerated under Rule 18, Sec.2.
Q: Petitioners were charged of the crime
of estafa by the respondents. One of the
respondents filed a motion to inhibit
against judge A. The case was re-raffled to
judge B. Judge B nullified and set aside
previous proceedings and set the case a
new for pre-trial conference. Can Judge B
nullify the proceedings previously
conducted and ordered a new pre-trial
of the case?
A:No. It cannot simply set aside the
proceedings that have been previously
conducted.
Pre-trial is a procedural
device intended to clarify and limit the
basic issues between the parties and to
take the trial of cases out of the realm of
surprise and maneuvering. Its chief
objective is to simplify, abbreviate and
expedite or dispense with the trial. Absent
any palpable explanation as to why and
how said proceedings were conducted in

violation of the rules should be set aside


(Zaldivar v. Dumasis, Mar. 2, 2016).
Section 1. When conducted.
It shall be the duty of the plaintiff, after
the last pleading has beenserved and
filed, to promptly move ex parte that the
case be set for pre-trial.
The motion is to be filed within 5 days
after the last pleading joining the issue
has been served and filed (Admin Cir. No.
3-99, 1999).
Iftheplaintifffailstofilesaidmotionwithinthe
givenperiod,theClerkofCourtshallissueano
ticeofpre-trial(A.M.No.03-1-09-SC,Re:Pretrialguidelines,EffectiveAugust16,2004).
The
plaintiffneednotwaituntilthelastpleadingh
asbeenactuallyservedand
filed
astheexpirationoftheperiod
forfiling
thelastpleadingwillsuffice(Sarmientov.Jua
n,No.56605 January28,1983).
Section 2. Nature and Purpose.
General Rule: Pre-Trial is mandatory.
Inpre-trial,thecourtshallconsider
thefollowing:
a. Possibility of amicable settlement or
arbitration;
b. Simplificationoftheissues;
c. Thenecessityordesirabilityofamendme
nts tothepleadings;
d. Thepossibilityofobtainingstipulationso
radmissionsoffactsandofdocumentsto
avoidunnecessaryproofs;
Note:
Theprocessofsecuringadmissions,whether
offactsorevidence,
isessentiallyvoluntary.Whenthepartiesare
unabletoarriveatastipulationofagreedfacts
,thecourtmustclosethepre-

93

94
trialandproceedwiththetrialofthecase(Filoil
MarketingCorp.v.DyPac&Co.,G.R.No.2963
6,Sept.30,1982).

Section 4.Appearance of Parties: Effect


of Failure to Appear

PLAINTIFFS
DEFENDANTS
FAILURE TO
FAILURE TO
APPEAR
APPEAR
Dismissal of the
The plaintiff will be
action with
allowed to present
prejudice, unless
evidence ex parte
otherwise
and for the court to
ordered by the
render judgment on
court
the basis thereof
REMEDY
File a motion for reconsideration stating
the reason for failure to appear, the
order be considered and judgment be
set aside.

General Rule: The parties and their

e. Limitationofnumberofwitnesses;
f. Theadvisability
ofpreliminaryreferenceof
issuestoacommissioner;
g. Propriety of rendering judgment on
the pleadings, summaryjudgments, or
of
dismissingtheactionshouldavalidgrou
ndforitsdismissalexist;
h. The
advisability
ornecessityofsuspendingtheproceedin
gs;and
i. Other matter that may aid the prompt
disposition of the action.
Section 3. Notice of Pre-trial.
Towhomserved:
1. Counsel;or
2.
Party,ifhehasnocounsel.
Itshallbetheduty
ofthecounselservedwiththenoticeofpretrialtonotifyhisclientofthedateof
thereof;hence,noticetothecounselwillsuffic
e.

counsel must appear at the pre-trial.


Exceptions:

Non-appearance

is

excused.
1. If a valid cause is shown
2. If a representative shall appear on his
behalf fully authorized in writing to:
a. Enter into amicable settlement
b. To submit to alternative modes of
dispute resolution
c. Enter
into
stipulation
or
admission
of
facts
and
of
documents
Requisites for Valid Authorization:
1. In writing
2. Special power of attorney, there is no
express requirement that it be
notarized but courts require that SPA
must be notarized
3. In case of corporation, there must be
a
board
resolution
specifically
authorizing the same.
Note: The representative need not only
show a written authority but must also
show a written authority but must also
show that there is a valid cause for the
non-appearance of the party whom he
seeks to represent.
Section 5. Effect of Failure to Appear.
The court may, upon motion, dismiss the
complaint and allow the defendant to
present evidence and his counterclaim.
Section 6. Pre-trial Brief: Effect of
Failure to File.
When to file:

At least 3 days before the date of the pretrial.


Note: Failure to file a pre-trial brief shall
have the same effect as non-appearance
at the pre-trial.
Remedy: The defendant who failed to file
his pre-trial brief may file a motion for
reconsideration showing that his failure
to file the same was due to FAME.
Contents:
1. A statement of their willingness to
enter into amicable settlement or
alternative
modes
of
dispute
resolution, indicating the desired
terms thereof.
2. A summary of admitted facts and
proposed stipulation of facts
3. The issues to be tried or resolved
4. The documents or exhibits to be
presented stating the purpose thereof
5. A manifestation of their having availed
or their intention to avail discovery
procedures
or
referral
to
commissioners
6. The number and named of witnesses
and the substance of their respective
testimonies.
Section 7. Record of Pre-trial.
The proceedings of the pre-trial shall be
recorded
Q: What is a Pre-trial Order?
A: It is issued by the court upon the
termination of the pre-trial and shall
recite in detail:
1. Matters taken up in the conference
2. Actions taken
3. Amendments
allowed
to
the
pleadings

4. Agreements or admissions made by


the parties as to any of the matters
considered.
Issues that are impliedly included in the
pre-trial order by necessary implication
are as much integral parts of the pre-trial
order as those expressly stipulated
(Velasco,etal.v.Apostol,etal.,L44588,May9,1989).
CIVIL CASE
1. The presence of
the defendant is
required,

CRIMINAL CASE
1. The presence of
the accused is NOT
indispensable,

Unless he is duly
represented by his
counsel
with
authority to enter
into a compromise
agreement, failure
of which the case
would proceed as
if the defendant
has been declared
in default.
2. The presence of
the
plaintiff is
required at the
pre-trial,

Unless required by
the court, he is just
required to sign the
written
agreement
arrived at the pretrial if he is in
conformity therewith.

Unless excused or
represented
by
person in writing
to perform the
acts specified in
Rule 18, Sec.4.

But must appear at


the arraignment for
the purpose of plea
bargaining,
determination of civil
liability and other
matters requiring his
presence.

Failure of which,
may
result
to
dismissal with or
without prejudice.

2. The offended party


is NOT required to be
present at the pretrial,

If the offended party


fails to appear and
the accused offer to
plea to a lesser
offense, the same
may be allowed with

95

96
the conformity of the
prosecutor alone.
3. A pre-trial brief
is Mandatory.

3. Pre-trial brief is
NOT required
But attendance only
in
a
pre-trial
conference
to
consider the matters
stated in Rule 18,
Sec.2.

Alternative Dispute Resolution


Any process or procedure used to resolve
a dispute or controversy, other than by
adjudication of a presiding judge of a
court or an officer of a government
agency, in which a neutral third party
participates to assist in the resolution of
issues.
This
includes
arbitration,
mediation, conciliation, early neutral
evaluation, mini-trial or any combination
thereof.
Referral to Arbitration
A court before which am action is brought
in a matter which is the subject matter of
an arbitration agreement shall, if at least
one party request not later than the pretrial conference or upon the request of
both parties, refer the parties to
arbitration.
Unless it finds that the arbitration
agreement is null and void, inoperative or
incapable of being performed.
A.M. No. 03-1-09-SC GUIDELINES TO
BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN
THE CONDUCT OF PRE-TRIAL AND
USE OF DEPOSITION-DISCOVERY
MEASURES
The use of pre-trial and the depositiondiscovery measures are undeniably

important and vital components of case


management in trial courts. To abbreviate
court
proceedings,
ensure
prompt
disposition of cases and decongest court
dockets, and to further implement the
pre-trial
guidelines
laid
down
in
Administrative Circular No. 3-99 dated
January 15, 1999 and except as
otherwise
In case efforts during pre-trial to settle
fail, the trial judge shall:
a. Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings and confirm markings of
exhibits or substituted photocopies and
admissions on the genuineness and due
execution of documents;
b. Inquire if there are cases arising out of
the same facts pending before other
courts and order its consolidation if
warranted;
c Inquire if the pleadings are in order. If
not, order the amendments if necessary;
d. Inquire if interlocutory issues are
involved and resolve the same;
e. Consider the adding or dropping of
parties;
f. Scrutinize every single allegation of the
complaint, answer and other pleadings
and attachments thereto and the contents
of documents and all other evidence
identified and pre-marked during pre-trial
in determining further admissions of facts
and documents.
To obtain admissions, the Court shall ask
the parties to submit the depositions
taken under Rule 23, the answers to
written interrogatories under Rule 25 and
the answers to request for admissions by
the adverse party under Rule 26. It may

also require the production of documents


or things requested by a party under Rule
27 and the results of the physical and
mental examination of persons under
Rule 28;
g. Define and simplify the factual and
legal issues arising from the pleadings.
Uncontroverted issues and frivolous
claims or defenses should be eliminated.
For
each
factual
issue,
the
parties/counsel shall state all the
evidence to support their positions
thereon.
For
each
legal
issue,
parties/counsel shall state the applicable
law and jurisprudence supporting their
respective positions thereon. If only legal
issues are presented, the judge shall
require the parties to submit their
respective memoranda and the court can
proceed to render judgment;
h. Determine the propriety of rendering a
summary judgment dismissing the case
based on the disclosures made at the pretrial or a judgment based on the
pleadings,
evidence
identified
and
admissions made during pre-trial;
i. Ask parties to agree on the specific trial
dates for continuous trial in accordance
with Circular No. 1-89 dated January 19,
1989; adhere to the case flow chart
determined by the court, which shall
contain the different stages of the
proceedings up to the promulgation of the
decision and use the time frame for each
stage in setting the trial dates. The OneDay Examination of Witness Rule, that is,
a witness has to be fully examined in one
(1) day only, shall be strictly adhered to
subject to the courts' discretion during
trial on whether or not to extend the
direct and/or cross-examination for
justifiable reasons. On the last hearing
day allotted for each party, he is required
to make his formal offer of evidence after
the presentation of his last witness and

the opposing party is required to


immediately interpose his objection
thereto. Thereafter, the Judge shall make
the ruling on the offer of evidence in open
court. However the judge has the
discretion to allow the offer of evidence in
writing in conformity with Section 35,
Rule 132;
j.
Determine
the
most
important
witnesses to be heard and limit the
number of witnesses (Most Important
Witness Rule). The facts to be proven by
each witness and the approximate
number of hours per witness shall be
fixed;
k. At his discretion, order the parties to
use the affidavits of witnesses as direct
testimonies subject to the right to object
to inadmissible portions thereof and to
the right of cross- examination by the
other party. The affidavits shall be based
on personal knowledge, shall set forth
facts as would be admissible in evidence,
and shall show affirmatively that the
affiant is competent to testify to the
matters stated therein. The affidavits
shall be in question and answer form, and
shall comply with the rules on
admissibility of evidence;
l. Require the parties and/or counsel to
submit to the Branch COC the names,
addresses and contact numbers of the
witnesses to be summoned by subpoena;
m. Order the delegation of the reception of
evidence to the Branch COC under Rule
30; and
n. Refer the case to a trial
commissioner under Rule 32. (Par 5)

by

RULE 19
INTERVENTION

97

98

Intervention
A proceeding in a suit or action by which
a third person is permitted by the court to
become a party by intervening in the
pending case after meeting the conditions
and compliance with the requirement set
by the rules.
Nature: Intervention is ancillary and
supplemental to an existing action.
Hence, it cannot exist independent of the
principal action.
General Rule: The dismissal of the
principal actions will result in the
dismissal
of
the
complaint-inintervention.
Exception: Dismissal as a result of the
compromise agreement.
General
Rule:
discretionary.

Intervention

Exceptions: It is a matter of right.


1. Intervenor turn our to be
indispensable party
2. Class suit

is

disposition of the property in the


custody of the court or of an officer
thereof.
Legal Interest one who has direct or
immediate interest in the cause of action
as pleaded and which would put the
intervenor in a legal position to litigate a
fact alleged in the complaint.

Procedure for Intervention:


1. The intervenor shall file a motion for
intervention attaching the pleadingin-intervention
2. The motion and the pleading shall be
served upon the original parties
3. The answer to the complaint-inintervention shall be filed within 15
days from notice of the order
admitting the same,
Unless a different period is fixed by the
court.

an

Intervention is a prohibited pleading in


forcible entry and unlawful detainer
under Rule 70, Sec. 13.
Section 1: Who may intervene.
Any person who:
1. Has legal interest in the matter in
litigation
2. Has legal interest in the success of
either of the parties
3. Has interest against both parties
4. Is so situated as to be adversely
affected by a distribution or other

Intervention Pro Interesse Suo


It is an intervention by a stranger who
desires to assert a property right in the
res or subject matter of litigation.
Interpleader A special civil action
whereby a person who claims no interest
brings an action against the conflicting
claimants to compel them to interplead
and litigate their several claims among
themselves.
Used to avoid double or multiple liability
on the part of the obligor (Riguera, PrimerReviewer
on
Remedial
Law,
Civil
Procedure, 2013).
INTERVENTION
Ancillary
and
supplemental
to

INTERPLEADER
Original action.

an existing action.
Proper in any of
the
situations
mentioned
in
Section 1 of this
Rule

Defendants
are
already
original
parties
to
the
pending suit.

Plaintiff
either:

must

1. Have no interest
in
the
subject
matter
of
the
action; or
2. Have an interest
therein, in whole
or in part, which
is not disputed by
the other parties
to the action.
Defendants
are
being
sued
precisely
to
implead them.

REQUISITES FOR INTERVENTION


1. There must be a motion for
intervention filed before rendition of
judgment by the trial court
2. The movant must show in his motion:
a. He has legal interest in the
matter in litigation, the success of
either of the parties in the action
or against both parties
b. He is so situated to be adversely
affected by a distribution or other
disposition of the property in the
custody of the court or officer.
c. The intervention must not unduly
delay
or
prejudice
the
adjudication of the rights of
original parties and that the
intervenors right may not be fully
protected
in
a
separate
proceeding.
A leave of court is necessary in order that
the third party may be allowed to
intervene in the action.

Note: An intervention cannot legally alter


the nature of the action and the issue
joined
by
the
original
parties
(Clardidadesv.Mercader,G.R.No.L20341,May14,1966).
Section 2. Time to Intervene.
General Rule: At any time before
rendition of judgment by the trial court.
Q: How to Intervene?
A:The copy of the pleading in intervention
shall be attached to the motion and
served on the original parties.
Exception: With respect to indispensable
parties, intervention was allowed even on
appeal.
Intervention is allowed to protect some
interest which cannot otherwise be
protected and may be allowed for the
purpose of preserving the intervenors
right to appeal.
Section 3. Pleadings-In-Intervention.
1. Complaint-in-intervention

if
interventor asserts a claim against
either or all of the original parties.
2. Answer-in-intervention if intervenor
unites with the defendant in resisting
the claim against the plaintiff.
Section 4. Remedy for the Denial Of
Motion To Intervene
Answer to Complaint-in-intervention.
Must be filed within 15 days from notice
of the order admitting the same, unless
otherwise ordered by the court.
Remedies if motion for intervention is
denied:
1. Appeal

99

100
2. File a petition for mandamus if there
is grave abuse of discretion

other things under his


produce it at the trial.

If the grant of intervention is improper,


the remedy available is certiorari.

2. SUBPOENA DUCES TECUM - An


ordinary subpoena. It requires a person
to whom the order is directed to attend
and testify at the hearing or the trial of an
action or at any investigation conducted
by a competent authority or for the taking
of his deposition.

RULE 20
CALENDAR OF CASES
General Rule
The assignment of cases to the different
branches shall be done exclusively by
raffle. (Sec. 20)
Exception
Cases falling within the jurisdiction of the
special commercial courts or family court
would be assigned to these courts.
Exception to the exception
Two or more brnches have been
designated as special courts, in which
cases it shall be raffled among them.

RULE 21
SUBPOENA
Section 1. SUBPOENA AND SUBPOENA
DUCES TECUM
Subpoena is a process directed to a
person requiring him to either:
1. Attend and to testify at the hearing or
the trial of an action or at any
investigation
conducted
by
a
competent authority
2. Give his deposition
3. Bring with him any nooks, documents
or other things under his control
TWO KINDS OF SUBPOENA
1. SUBPOENA AD TESTIFICANDUM- A
process by which the court, at the
instance of a party, commands him to
bring with him any books, documents or

control

and

Section 2. By whom issued


Q: Who may issue subpoena?
A: Subpoena may be issued by:
1. The court before whom the witness is
required to attend
2. The court of the place where the
deposition is to be taken
3. The officer or body authorized by law
to do so in connection with the
investigations conducted by said
officer or body
4. Any justice of the Supreme Court or
Court of Appeals in any case or
investigation pending within the
Philippines.
Section 3. Form and Contents.
1. State the name of the court
2. State the title of the action or
investigation
3. Be directed to the person whose
attendance is required
4. In case of subpoena duces tecum,
shall also contain a reasonable
description of books, documents or
things demanded
5. The description must appear to the
court prima facie relevant
Section 4. Quashing Of Subpoena
Q: What are the grounds for quashing a
subpoena duces tecum?

A: The court may quash a subpoena


duces tecum upon motion promptly made,
and in any event, at or before the time
specified if:
1. It is unreasonable or oppressive.
2. The relevancy of the books,
documents or things does not
appear
3. The person in whose behalf the
subpoena is issued fails to
advance the reasonable cost of the
production thereof
4. The
witness
fees
and
the
kilometrage allowed by these rules
were not tendered when the
subpoena was served.
Q: What is the ground for quashing a
subpoena ad testificandum?
A: The grounds for Quashing Subpoena
Ad Testificandum are as follows:
1. The witness is not bound, where
the residence is more than 100km
from place of trial
2. The
witness
fees
and
the
kilometrage allowed by these Rules
were not tendered when the
subpoena was served.
VIATORY RIGHT OF A WITNESS
Q: What is the viatory right of a
witness?
A: it is the right of a witness not to be
compelled to attend in court under a
subpoena if the witness resides more
than 100 kilometers from his residence to
the place where he is to testify by the
ordinary
course
of
travel.(Florenz,
Regalado, Remedial Law Compendium
2007)

The right is available only in civil cases.


No viatory right in criminal cases (People
v Montejo, GR No.L-24154, 1967).
Section 5. Subpoena for Deposition.
Proof of service of notice to take
depositions shall constitute sufficient
authorization
for
the
issuance
of
subpoena.
But the clerk shall not issue a subpoena
duces tecum to any person without an
order of the court.
Section 6. Service of Subpoena.
Service of Subpoena shall be in the same
manner as personal or substituted service
of summons.
1. The original shall be exhibited and a
copy of the same shall be delivered to
the person served
2. Tendering to him the fees for one days
attendance and the kilometrage
allowed.
Except: If subpoena is issued by or on
behalf of the Republic of the
Philippines or an officer or agency
thereof, the tender need not be made.
3. If the subpoena is a duces tecum, the
reasonable cost of producing the
books,
documents
or
things
demanded shall also be tendered.
Section 7. Personal Appearance in
Court.
A person present in court before a judicial
officer may be require to testify as if he
were on attendance upon a subpoena
issued by such court or officer.
Section 8. COMPELLING ATTENDANCE
OF WITNESSES

101

102
In case of failure of a witness to attend,
the court or judge issuing the subpoena,
upon proof of the service thereof and of
the failure of the witness, may issue a
warrant to the sheriff of the province, or
his deputy, to arrest the witness and
bring him before the court or officere
where his attendance is required. (Sec. 8)
This is also known as bench warrant.
The court also has the power to punish
for indirect contempt any person who fails
to obey without adequate cause a
subpoena served upon him.
Section 9. CONTEMPT
Consequences for failure to appear:
1. Issue a warrant for the arrest of the
witnesses and bring him in the court
or officer where his attendance is
required
2. Make him pay for the cost of such
warrant and seizure, if the court
should determine that his failure to
answer the subpoena was willful and
without just excuse
3. A contempt of court if there is no
adequate cause to obey a subpoena
4. If the subpoena was not issued by a
court, the disobedience shall be
punished in accordance with the
applicable law or rule.
Section 10.EXCEPTIONS
Compulsion and Contempt do NOT
apply
1. The witness resides more than 100
km from his residence to the place
where he is to testify by the ordinary
course of travel
2. To a detention prisoner if no
permission of the court in which his
case is pending was obtained.
Subpoena

Summons

1. Directed to a
witness

1. Directed to a
defendant in a civil
case

2.
Witness
is
directed to appear
and testify and/or
to
bring
documents

2. Defendant is
informed that a
complaint is filed
against him and he
must
file
a
responsive pleading

3. Witness will be
declared
in
contempt or his
attendance can be
compelled by the
issuance
of
warrant of arrest
4. Applicable to
both criminal and
civil cases
5. There is 100 km
limitation

3. Judgment in
default
will
be
rendered
against
the defendant who
fails to comply

4. Applicable only
to civil cases
5.
No
distance
limitation

RULE 22
COMPUTATION OF TIME
Section 1: How to compute time.
The day of the act or event from which the
designated period of time begins to run is
to be excluded and the date of
performance included.
SATURDAY, SUNDAY OR
LEGAL HOLIDAY
If the last day of the period falls on a
Saturday, Sunday or a Legal Holiday in
the place where the court sits, the time
shall not run until the next working day.
EXAMPLE: If the defendant is served with
summons on June 1, he has until June
16 (June 1 + 15= June 16), within

which to file his answer. If the defendant


receives a copy of the adverse decision on
October 1, he has until October 16 within
which to file a notice of appeal. (Riguera,
Primer-Remedial Law, Vol.1, 2015, page
369)
Section 2: Effect of interruption.
Q: What is the effect of interruption on
the period of time?
A: Should an act be done which
effectively interrupts the running of the
period, the allowable period after such
interruption shall start to run on the day
after notice of the cessation of the cause
thereof.
EXCLUDED: The day of the act that
caused the interruption shall be excluded
in the computation of the period.
EXAMPLE: In the preceding example, if
the defendant filed on June 10 a motion
to dismiss and he received the order
denying the motion to dismiss on July 1,
he has until July 8 (July 2 + 6) within
which to file his answer.
ALLOWABLE PERIOD:
After such interruption (6 days) starts to
run on the day after notice of the
cessation of the interruption's cause,
which is July 2.
MODES OF DISCOVERY
RULES 23-29
Q: What is discovery?
A: 1. A device employed by a party to
obtain information about relevant matters
on the case from the adverse party in
preparation for the trial (Riano, 2014).

2. The modern pre-trial procedure by


which one party gains vital information
concerning the case in order to aid him in
his litigation (Riguera, 2015 citing Steven
Gifis Law Dictionary, 1975).
PURPOSES:
1. To narrow and clarify the basic issues
between the parties
2. To ascertain the facts relative to the
issues
3. Enable the parties to obtain the
fullest possible knowledge of issues
and facts before civil trials.
Q: What is the primary purpose of
discovery?
A:
Theprimarypurposeofdiscoveryistoenablet
hepartiestoobtain
thefullestpossibleknowledgeoftheissuesan
dfactsbeforetrialandthuspreventthesituati
onwheretrialsarecarriedoninthedark.Itma
kes
theparties
lay
downtheircardsonthetablesothatjusticeca
nberenderedonthemeritsofthecase(Riguer
a2015,citingKohv.IAC,144SCRA259).
Modes of Discovery. (PRIDE)
1. Deposition pending action (Rule 23);
or Depositions before action or
pending appeal (Rule 24)
2. Interrogatories to parties (Rule 25)
3. Request for admission by adverse
parties (Rule 26)
4. Motion for production or inspection of
documents or things (Rule 27)
5. Motion for physical and mental
Examination of persons (Rule 28)
Note: Availing modes of discovery is not
mandatory but the failure to avail may be
sanctioned under Rule 25 and 26.

103

104
Bill of Particular
To
compel
to
clarify
vague
statements
of
ultimate facts.

Modes of Discovery
To
compel
other
party to reveal his
evidence
and
evidentiary facts.

Prior Leave of Court Required


Rules 27 and 28 always require prior
leave of court, unlike other modes of
discovery which could be availed of
without leave of court as long as the
defendant has filed or served a responsive
pleading.

RULE 23
DEPOSITIONS PENDING ACTION
Deposition
1. A
writtentestimonyofawitnessgiveninthe
courseofajudicialproceeding
inadvanceofthetrialorhearinguponoral
examinationorinresponsetowritteninte
rrogatoriesand
opportunityisgivenfor
examination

wherean
cross(Republicv

Sandiganbayan,G.R.No.112710,May3
0,2001).
2. Amethodofpretrialdiscoverywhichconsistsintakingth
etestimonyofapersonunderoathuponor
alexamination(oraldeposition)oruponw
ritteninterrogatories.Thetermdepositio
nalsoreferstothetestimonyorstatement
sotaken(Riguera,2013).
CLASSIFICATION OF DEPOSITIONS
1. Depositions on oral examination and
depositions
upon
written
interrogatories
2. Depositions de benne esse (Rule 23)

3. Depositions in perpetualrei memoriam


(Rule 24)
Classification As To:
1. Method of Taking
a. Deposition on oral examination
b. Depositions
upon
written
interrogatories
2. Time of Use
a. Depositions
for
use
during
pending action (Deposition de
benne esse; Rule 23).
b. Depositions for use on future
proceedings or for cases pending
appeal (Deposition in perpetuam
rei memoriam; Rule 24).(Riano,
2011).
USE OF DEPOSITIONS
The purpose of which a deposition may be
used depends on who the deponent is and
on who will be using the deposition. (Rule
23, Sec 4 (c) that lays down the relevant
rules:
1. Any deposition may be used by any
party for the purpose of contradicting
or impeaching the testimony of the
deponent as a witness.
This is a common use of deposition to
impeach a witness under crossexamination.
2. The deposition of a party or anyone
who at the time of the taking the
deposition was an officer, director or
managing agent of a public or private
corporation,
partnership
or
association which is a party may be
used by an adverse party for any
purpose.
3. The deposition of a witness, whether
or not a party, may be used by any
party for any purpose if the court
finds: (DOSUE)

a. That the witness is dead


b. The witness resides at a distance
more than 100 km from the place
of trial or hearing or is out of the
Philippines,
Unless it appears that his absence
was procured by the party offering
deposition.
c. That the witness is unable to
attend or testify because of age,
sickness,
infirmity
or
imprisonment
d. That the party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena
e. Upon application and notice that
such exceptional circumstance
exist as to make it desirable, in
the interest of justice and with due
regard to the importance of
presenting the testimony of the
witness orally in open court, to
allow the deposition in such case
is admissible in evidence as an
exception to the hearsay rule
(AntonioR.Bautista,BasicCivilProce
dure124[2003ed.];UnitedStatesFed
eralRulesofEvidence,Sec.804[b][1]).
Notes:
1. Applies also for depositions under
Rule 24.
2. If deposition is taken not in the same
but in a former case or proceeding, it
is governed by Rule 130, Sec.47
(Riguera, 2015).
3. If only part of a deposition is offered
in evidence by a party, the adverse
party may require him to introduce all
of it which is relevant to the part
introduced, and any party may
introduce any other parts (Rule 23,
Sec.4 (d); Riguera, Primer-Reviewer on
Remedial Law, Civil Procedure).

Q:Are
the
modes
of
discovery
applicable in criminal cases?
A:YES. The use of discovery procedures is
directed to the sound discretion of the
trial judge. The deposition taking cannot
be based nor can it be denied on flimsy
reasons. Discretion has to be exercised in
a reasonable manner and in consonance
with the spirit of the law (People v. Webb,
G.R. No. 132577, August 17, 1999).
Purpose of the Discovery:
It is the policy of the law that the parties
before trial should discover or inform
themselves of all facts relevant to the
action, especially those within the
knowledge of the adverse party or
Sec. 1. Depositions Pending Action.
1. With leave of Court
a. After
jurisdiction
has
been
obtained over any defendant or
over property subject of the action
b. Deposition of a person confined in
prison
2. Without leave of court
After an answer has been served.
General Rule: Plaintiff may not be
permitted to take depositions before
answer is served.
Exception:Under special circumstances
where there is necessity and good reason
for presenting a strong case and taking of
the testimony immediately.
Reason: He must wait for the joinder of
issues because only this time that it can
be determined what is relevant.
Example.Wherethewitnessisagedorinfirm,
ananswerexabudanticautela(outofabunda
nt
cautionortobeonthesafe

105

106
side)doesnotmake their answer less ofan
answerandwhensuch
answerisfiled,depositionmaybemadewitho
utleaveofcourt(Rosetev.LimG.RNo.136051,
June8,2006).

RULE 24
SCOPE OF EXAMINATION
Deponent may be examined regarding any
matter that is:
1. Not privileged
2. Relevant to the subject of the pending
action
3. Not restricted by court order for the
protection of parties and deponents
4. Not meant to annoy, embarrass or
oppress the deponent or party
DEPOSITIONS
1.
Written
testimony
of
witness
in
course
of
judicial
proceedings
in
advance of trial
and hearing.
2. Opportunity
for
crossexamination.
3.
Can
be
competent
testimonial
evidence.

AFFIDAVITS
1. Mere sworn
written
statements.

2.
No
crossexamination.
3. Little probative
value (hearsay).

Sec.3.
Examination
and
CrossExamination.
Examination and cross-examination or
deponents may proceed as permitted at
the trial.
Sec.5. Effectof Substitution of Parties.
Substitution of parties does not affect the
right to use depositions previously taken.

Effect of Taking and Using Depositions


General Rule: A person giving deposition
does not become a witness of the party for
whose benefit the deposition was taken.
Exception: If deposition or any part is
introduced in evidence other than that of
contradicting
or
impeaching
the
deponent, makes the deponent the
witness of the party introducing the
deposition.
Exception to the exception: The
exception does not apply when the party
making use of such is an adverse party.
Reason: Depositions are taken for
discovery and not for use as evidence.
Sec. 6. Objections to Admissibility
Made
Objections may be made at the trial or
hearing to receiving in evidence any
deposition or part thereof for any reason
which would require the exclusion of the
evidence if the witness were then present
and testifying subject to Ruler 23, Sec.29.
As to competency and relevancy of
testimony
Objections to the competency of a witness
or
the
competency,
relevancy
or
materiality of testimony are not waived by
failure to make them before or during the
taking of the deposition,
Unless the ground of the objection is one
which might have been obviated or
removed if presented at the time.
Test to determine whether the ground
of objection have been obviated:
Whether the objection will give the other
party an opportunity to cure the
deficiency of his proof.

Example: The lack of qualification of an


expert which may be cured by objecting at
the time of the taking of the deposition.
As to form of notice and disqualification of
officer
1. All errors and irregularities in the
notice for taking a deposition are
waived.
Unless written objection is promptly
served upon the party giving the
notice.
2. Objections to taking a deposition
because of disqualification of the
officer before whom the taking of the
deposition begins or as soon as the
disqualification becomes known or
could be discovered with reasonable
diligence (Riguera, 2013).
Sec.
10.
Persons
before
whom
depositions may be taken WITHIN THE
PHILIPPINES.
1. Judge
2. Notary Public
3. Any person authorized to administer
oaths if the parties so stipulate in
writing.
Sec.
11.
Persons
before
whom
deposition may be taken IN FOREIGN
COUNTRIES.
1. On notice, before a secretary of any
embassy or legation, consul-general,
consul, vice-consul, consular agent of
the Philippines
2. Before such person or officer as may
be appointed by commission or under
letters rogatories
3. Any person authorized to administer
oaths if the parties so stipulate
Letters Rogatory
An instrument sent in the name and by
the authority of a judge or court to

another, requesting the latter to cause to


be examined upon interrogatories filed in
a cause pending before the former, a
witness who is within the jurisdiction of
the judge or court whom such letters are
addressed
(DasmarinasGarmentsvs.Reyes,G.R.No.10
8229,August24,1993).
Sec.12.Commission
Rogatory.

or

Letters

When issued
1. Only when necessary and convenient
2. On application and notice
3. On such terms and with such
direction as are just and appropriate.

Commission
1. Issued to a
non-judicial
foreign
officer
who
will
directly
take
the testimony.

Letters Rogatory
1.
Issued
to
the
appropriate
judicial
officer of the foreign
court who will direct
another person in that
country to take down
testimony.

2.
Rules
of
procedure
of
the requesting
court
shall
apply.
3. Resorted to if
permission
of
the
foreign
country
is
given.
4.
Leave
of
court is not
necessary.

2. Rules of procedure of
the
foreign
court
requested to act shall
apply.
3. Resorted to if the
execution
of
the
commission is refused in
the foreign country.
4. Leave of
necessary.

court

is

Sec. 13. Disqualification by Interest.


Persons disqualified to take depositions
1. Relative
within
6th
degree
of
consanguinity or affinity of any party

107

108
2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of
partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the
action.
Sec. 14. .Stipulations regarding taking
of Depositions.
The parties may stipulate in writing that
depositions shall be taken before any
person authorized to administer oaths in
accordance with the Rules.
Section
15.Deposition
Examination.

upon

Oral

Requisites:
1. Give notice to every other party to the
action
2. Notice shall state the time and place
for the taking of deposition and the
names and address of each person to
be examined, if known or if not
known, then a general description
sufficient to identify him.
Section 16. Order for the protection of
parties and deponents.
After notice is served for taking a
deposition by oral examination, upon
motion seasonably made by any party or
by the person to be examined for good
cause shown, the court in which the
action is pending may make an order
that:
1. The deposition shall not be taken
2. It may be taken only at some
designated place other than that
stated in the notice
3. It may be taken only on written
interrogatories
4. Certain matters shall not be inquired
into

5. The scope of the examination shall be


held with no one present except the
parties to the action and their officer
or counsel
6. After being sealed the deposition shall
be opened only by order of the court
7. Secret process, developments or
research need not be disclosed
8. The parties shall simultaneously file
specified documents r information
enclosed in sealed envelopes to be
opened as directed by the court
9. The court may make any other order
which justice requires to protect the
party or witness from annoyance,
embarrassment or oppression.
Section 17. Record of examination,
oath,
objections.
The witness shall be placed under oath:
1. Testimony of the witness shall be
recorded
2. The testimony shall be recorded
stenographically unless parties agrees
otherwise
3. All objections made, or the manner of
taking it or evidence presented shall
be noted by the officer
Section 18.When May Taking of
Deposition Be Terminated Or Its Scope
Limited.
At any time during the taking of
depositions, on motion or petition of any
party or of the deponent.
There must be a showing that:
a. Examination is being conducted in
bad faith
b. In such manner as unreasonably
to annoy, embarrass or oppress
the deponent or party.
Section 19. Submission to Witness.

The deposition shall be submitted to the


witness for examination and shall be read
to our by him, unless such examination
and reading are waived by the witness
and the parties.
Any change in form or substance which
the witness desired to make shall be
entered upon the deposition by the officer
with a statement of the reasons of the
witness for making them.
The deposition shall then be signed by the
witness, unless the parties by stipulation
waive the signing or the witness is ill or
cannot be found refuses to sign.
Section 20. Certification and Filing by
Officer.
The court may order the party giving
notice:
1. To pay the other party the amount of
the reasonable expenses incurred by
him and his counsel
2. Including reasonable attorneys fees.
Section 25. Deposition upon Written
Interrogatories.
How made:
1. Serve upon every other party:
a. A notice stating the name and
address of the party who is to
answer them and
b. The name or descriptive title and
address of the officer who is to
take the deposition
2. The party so served may within 10
days from receipt of notice, serve
cross-interrogatories upon the party
proposing to take the deposition
3. Within 5 days thereafter, the latter
may serve re-direct interrogatories
upon the party who has served crossinterrogatories.

Note: Within 3 days after being served


with redirect interrogatories, a party may
serve recross-interrogatories upon the
party proposing to take the deposition.
Deposition
Upon Oral
Examination
Questions
and answers
are oral.

Deposition Upon
Written Interrogatories
Questions are prepared
already in advance and
there is no personal
confrontation with the
witness.

Section 29. Effect of Errors


Irregularities In Depositions.

And

EFFECT

As to notice

As to
disqualification
of officer

As to
competency or
relevancy of
evidence

As to oral

Waived. Unless written


interrogatories
is
promptly served upon
the party giving the
notice.

Waived. Unless made


before the taking of
the deposition begins
or as soon thereafter
as the disqualification
becomes known or
could be discovered
with
reasonable
diligence.
Not waived. Unless the
ground
of
the
objection is one which
might
have
been
obviated or removed if
presented
at
that
time.
Waived.

Unless

109

110
examination
and other
particular

As to form of
written
interrogatories

As to matter of
preparation

reasonable objection
thereto is made at the
taking
of
the
deposition.
Waived. Unless served
in writing upon the
party
propounding
them within the time
allowed for serving
succeeding cross or
other interrogatories
and within 3 days
after service of the last
interrogatories
authorized.
Waived.
Unless
a
motion to suppress
the deposition or some
part thereof is made
with
reasonable
promptness after such
defect is or with due
diligence might have
been ascertained.

RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
Depositions
in
perpetuam
rei
memoriam
Taken to perpetuate evidence for purpose
of an anticipated action or further
proceedings in a case or appeal.
Sec. 1.Depositions Before Action.
May be filed by any person:
1. Desiring to perpetuate his own
testimony
2. That of another person regarding any
matter that may be cognizable in any
court of the Philippines may file a

verified petition in the court of the


place of the residence of any expected
adverse party.
Note: Sec.1 may not be availed of in
criminal cases, but the procedure in
Sec.7 is available in all actions including
criminal cases (Regalado, 2010).
Sec.2. Contents of the Petition.
1. That petitioner expects to be a party
to an action in a court of the
Philippines but is presently unable to
bring it or cause it to be brought
2. The subject matter of the expected
action and his interest therein
3. The facts which he desires to establish
by the proposed testimony and his
reasons for desiring to perpetuate it
4. The names or description of the
persons he expects will be the adverse
parties and their addresses so far as
known
5. The name and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each.
Sec. 3. Notice and Service
1. The petitioner shall serve notice upon
each person named in the petition as
an expected adverse party together
with a copy of the petition
2. At least 20 days before the date of the
hearing, the court shall cause notice
to be served on the parties and
prospective deponents.
Use of Deposition. Sec.6.
It may be used in any action involving the
same
subject
matter
subsequently
brought in accordance with the provisions
of Rule 23, Secs. 4 and 5. (IPD)
Depositions Pending Appeal. (Sec.7)
The court which rendered judgment may
allow the taking of depositions of

witnesses to perpetuate their testimony


for use in the event of further proceedings
in the said court in order to avoid a
failure or delay of justice.
Requisites:
1. Make a motion for leave to take the
deposition
2. Motions shall state:
a. The named and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each
b. The reason for perpetuating their
testimony.
When may taking of deposition be
terminated or its scope limited
At any time during the taking of the
deposition, on motion or petition of any
party or of deponent.
There must be showing that:
1. Examination is being conducted in
bad faith
2. In such manner as unreasonably to
annoy, embarrass or oppress the
deponent or party.
Order for the Protection of Parties and
Deponents. Sec. 16.
Requisites:
1. Motion by party or person to be
examined
2. Motion seasonably filed
3. There is good cause shown
4. Notice of motion served to the other
party

RULE 25
INTERROGATORIES TO PARTIES
Purpose: To elicit material and relevant
facts from any adverse party.

Section 1.Interrogation to Parties.


1. With Leave of Court before the
answer has been served.
2. Without Leave of Court after the
answer has been served with respect
to the first set of interrogatories.

Deponent

Procedure

Deposition
upon Written
Interrogatori
es to Parties
Rule 23
Party
or
ordinary
witness
With
intervention
of the officer
authorized by
the court to
take
deportation

Interrogatori
es to Parties
Rule 25

Party only
No
intervention.
The
written
interrogatories
are directed to
the
party
himself.

Direct, Cross, Only one set of


PROTECTION
MOTION TO
Re-direct, Re- interrogatories
Scope
ORDER
TERMINATION OR
direct Cross
is allowed
LIMIT
EXAMINATION
Deponent
is
1. Granted by the 1. Granted
by 15
thedays
given
court
for
the court
for
the
to
answer
Period to
protection of the
protection
of
the
party
No
fixed
time
unless
Answer
party
or witness or witness extended
at any time or
before the taking during thereduced
taking by
of the
of the deposition the deposition.
court
but after notice
for the taking
Questions are
Questions
thereof is served.
prepared
2. Motion must
2. Motion must be file
beforehand
be
seasonably
and by any party or by the
filed by any party
personto Questioning
to
be is
submitted
or by the person
the examined. direct.
to be examined.deposition
3. Good cause
officer3. Must
who be shown tat
must be shownwill ask
the the
examination is
conducted:
deponent and
recorda. In bad
the faith
b. In such a manner
as to unreasonably
annoy, embarrass or
oppress the deponent
or party.

111

112
1. To give testimony in open court
2. To give a deposition pending appeal.

answer.
Consequences 0f Refusal to Answer.
Rule 29, Sec. 5.
The court on motion and notice may:
1. Strike out all or any party of any
pleading of disobedient party
2. Dismiss the action or proceeding or
any party thereof
3. Enter a judgment by default against
disobedient party
4. Order
payment
of
reasonable
expenses incurred by the other
including attorneys fees.
Answer to Interrogatories. Rule 25, Sec.
2.
1. In writing
2. Signed and sworn to by the person
making them
3. Party served shall file and serve a
copy of the answers on the party
submitting the interrogatories within
15 days from service,
Unless the court extends or shortens the
time on motion and for good cause.

Thus
a
party
not
served
with
interrogatories may no be called as an
adverse party witness by the other side
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, 2013).
Exception:Allowed by the court:
1. For good cause shown
2. To prevent a failure of justice
A.M. No. 03-1-09-SC
GUIDELINES TO BE OBSERVED BY
TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF
PRE-TRIAL AND USE OF
DEPOSITION-DICVOERY MEASURES
Existingrulesconsiderthismodeof
discoveryimportantbecausewithinoneday
fromreceiptofthecomplaint,therulemanda
tesnotonlythepreparationofthesummons
butalsotheissuanceofanorderrequiringth
epartiestoavailofinterrogatoriestoparties
underRule25andrequestforadmissionbya
dversepartyunderRule26.

Section 3. Objection to Interrogatories.


1. May be presented to the court within
10 days after service
2. With notice
3. Objections must be resolved before
the answers are served
Note: A judgment by default may be
rendered against a party who fails to
answer written interrogatories.
Sec.6.Effect of Failure
Written Interrogatories

To

Serve

General Rule: A party not served with


such may not be compelled by the adverse
party to:

Theparties,however,mayuseattheirdiscreti
on, depositions under Rule 23 or other
measures
underRule27and29within
5 daysfromthefilingoftheanswer
(Riano2011,citingA.M.No.03-1-09SC,IA,1.1,1.2)

RULE 26
ADMISSION OF ADVERSE PARTY
REQUEST FOR ADMISSION
Sec. 1. When to file and serve.
At any time after issues have been joined.

To whom the request for admission is


served; effect of improper service
A request for admission must be served
directly upon the party requested.
Otherwise, cannot be deemed to have
admitted the genuineness of any relevant
matters of fact set forth on account of
failure to answer the request for
admission (Lanada v CA, 2002).
Request may include:
1. Admission of the genuineness of any
material and relevant document
described in an exhibited with the
request
2. Admission of the truth of any material
and relevant matter of fact set forth in
the request
3. A matter of fact not related to any
document for admission or denial by
the other party.
Purpose: To allow one party to request
the adverse party in writing to admit
certain material and relevant matters
which most likely will be disputed during
the trial.
Section 2. Implied
Adverse Party.

Admission

By

Which shall not be less than 15 days after


service or within such further time as the
court may allow on motion.
2. When the request for admission is not
directly served upon the party
requested,
The party requested cannot be
deemed
to
have
admitted
the
genuineness of any relevant matters of
fact set forth therein on account of
failure to answer the request for
admission (Lanada v CA, 2002).
Judicial Notice of Courts on Admission
Not Offered in Evidence
The court may take judicial notice of the
admission not offered as evidence
because it already forms part of the
record.
Request for Admission of Matters
Already Denied in the Answer to the
Complaint
Request for admission is not proper where
the subject matters are the same as the
ultimate facts alleged in the requesting
partys complaint for which the requested
party had already denied in his answer
(Lanada v CA, 2002).

General Rule: Each of the matter


requested to be admitted shall be deemed
admitted if the party served fails to make
a reply.

Note: A party should not be required to


make a second denial of those already
denied in his answer to the complaint
(Lanada v CA, 2002).

Exceptions:
1. The requested party files and serves
upon the party requesting the
admission a sworn statement either:
a. Specifically denying
b. Setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters

Section 2. Consequences of Failure to


Answer Request for Admission
Each of the matter requested to be
admitted shall be deemed admitted if the
party served fails to make a reply. (Sec. 2,
Rule 26)
When the response to the request for
admissions are not timely served, then

113

114
they are deemed admitted, and one
cannot be permitted at time of trial to
introduce evidence that would controvert
the deemed admission.

PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS.

Effect of Admission

Production or inspection of documents


or things:

Admission made is:


1. Only for the purpose of the
pending action; and
2. May not be used in any other
proceeding.
3. Not final and irrevocable.

1. Applies only to pending actions


2. Documents or things subject of the
motion
must
be
within
the
possession, control or custody of the
party against whom the order is
directed.

Section 5.Effect of Failure to File and


Serve Requests for Admission.

Purpose: To allow a party to seek an


order from the order in which the action
is pending to:
a. Order any party to produce and
permit the inspection and copying or
photographing,byoronbehalfofthemov
ingparty,ofanydesignateddocuments,
papers,books,accounts,letters,photog
raphs,objectsortangiblethings,notpriv
ileged,whichconstituteorcontainevide
ncematerialtoanymatterinvolvedinthe
actionandwhichareinhispossession,c
ustodyandcontrol.
b. Order
any
party
to
permit
entryupon designated land and other
property
inhis
possessionorcontrolforthepurposeofi
nspecting,measuring,surveying,orph
otographingthepropertyoranydesignat
edrelevantobjectoroperationthereon.

The party who fails to file and serve a


request for admission on the adverse
party of material facts at issue which are
or ought to be within the personal
knowledge of the latter, shall not be
permitted to present evidence,
Unless otherwise allowed by the court for
good cause shown and to prevent failure
of justice.
Request for
Admission
Proper when the
genuineness
of
an
action
evidentiary
document
is
sough
to
be
admitted.
If
not
denied
under oath, its
genuineness
is
deemed impliedly
admitted.
(Rule
26)

Actionable
Document
Must be attached
to the complaint or
copied therein.
Its
genuineness
and de execution is
deemed
unless
specifically denied
under oath by the
opposing
party.
(Rule 8)

RULE 27

Requisites:
1. Motion by leave of court must be filed
by a party showing good cause
2. Notice of the motion must be given to
all other parties
3. Motion must sufficiently describe the
document or thing sought to be
produced or inspected
4. The document or the thing must
constitute
or
contain
evidence
material to the pending action
5. The document or the thing must not
be privileged

6. The document or thing must be in the


possession of the adverse party, or at
least under his control.
Contents of Order for Production or
Inspection
1. Shall specify the time, place and
manner of making the inspection and
taking copies
2. May describe such terms and
conditions which are just.
PRODUCTION
OR INSPECTION
OF DOCUMENTS
OR THINGS
RULE 27
1.
Modes
of
Discovery

SUBPOENA
DUCES TECUM
RULE 21

1.
Means
of
compelling
production
of
evidence
which
must be brought to
court

2.
Limited
to
parties in the
action

2. May be directed
to
any
person,
whether a part or
not

3. Issued only
upon motion with
notice to adverse
party

3. May be issued
upon an ex-parte
application

Objectsortangiblethings
The court can compel the plaintiff,under
thisRule,to
consentto
theexhumation
ofthebodyof
thedeceasedinacaseinvolvingtheaccident
aldeathclauseofaninsurancepolicyconsid
eringthatSec.1ofthisRulealsospeaksofobj
ectsortangiblethings"whichisbroadenough
toincludeacadaver.
Ontheotherhand,Rule23cannotbeinvoked
forthesamepurposeasitcontemplatesandis

limited
tophysical
andmental
examinationofalivingperson.Therewouldbe
,however,noproblemiftheexhumationorpos
tmortemexaminationisinvolvedinandneces
saryforpurposesofacriminalaction(Regala
do).

RULE 28
PHYSICAL AND MENTAL
EXAMINATION OF PERSONS.
Physical and Mental Examination of
Persons
This mode of discovery is available in an
action which the mental or physical
condition of a party is in controversy.
Examples.
1. Annulment of contract on the ground
of insanity
2. Petition for guardianship of a person
alleged to be insane
3. Action for damages where the issues
is
the
extent
of
injuries
of
plaintiff(Riano).
Section 1. Order of Examination.
In an action in which the mental or
physical condition of a party is in
controversy, the court in which the action
is pending may in its discretion, order
him to submit to a physical or mental
examination by a physician.
Since the results of the examination are
intended to be made public, the same are
not covered by the physician-patient
privilege. Furthermore such examination
is not necessary to treat or cure the
patient but to assess the extent of injury
or to evaluate his physical or mental
condition (Rule 130, Sec. 24[c]).
Section 2.Requisites:
1. Physical or mental condition must be
the subject of controversy

115

116
2. Motion showing good cause must be
filed
3. Notice of motion must be given to the
party to be examined and to all other
parties
Section 3.Report of Findings.
A copy of the detailed written report of the
examining physician may be delivered
tothe party examined, if the latter should
request.
Section 4.Waiver of Privilege.
A party examined waives any privilege he
may have in that action or any other
involving the same controversy:
a. By requesting and obtaining a report
of the examination so ordered; or
b. By taking the deposition of the
examiner.
CONSEQUENCES OF REQUESTING AND
OBTAINING
A
REPORT
OF
EXAMINATION
Where the party examined requests and
obtains a report on the results of the
examination, the consequences are that:
1. He has to furnish the other party a
copy of the report of any previous or
subsequent examination of the same
physical and mental examination; and
2. He waives any privilege he may have
in that action or any other involving
the same controversy regarding the
testimony of any other person who
has so examined him or may
thereafter examine him (Regalado).
PriorLeaveofCourtRequired
Rules
27and28alwaysrequireprior
leaveof
court,unlikeothermodesofdiscoverywhichc
ouldbeavailedofwithoutleaveofcourtaslong
asthedefendanthasfiledorservedaresponsi
vepleading.

RULE 29

CONSEQUENCES OF REFUSAL
TO COMPLY WITH MODES OF
DISCOVERY
Sanctions:
Section 1. Refusal to answer any
question.
1. Examination may be completed on
other matters, or adjourned, as the
proponent of the question may prefer;
2. Upon application by the proponent,
the court may compel the deponent to
answer the questions;
3. If the refusal was without substantial
justification, court may require the
refusing party or deponent or the
counsel advising the refusal or both of
them, to pay the proponent the
amount of the reasonable expenses
incurred in obtaining the order,
including attorneys fees.
Note: The remedies above are available
under Rule 23 and Rule 25.
Sec. 2. Refusal to be sworn.
If a party or other witness refuses to be
sworn or refuses to answer question after
being directed to do so by the court of the
place in which deposition is being taken,
such refusal may considered a contempt
of that court.
Section
3.
Refusal
to
answer
designated or particular questions or
refusal to produce documents or things
or to submit to physical examination
1. Order that the matters regarding
which questions were asked shall be
taken to be established for purposes
of the action in accordance with the
claim of the party obtaining the order;
2. Refuse to allow the disobedient party
to support or oppose designated
claims or defenses;

3. Strike out all or any part of the


pleading of the disobedient party;
4. In lieu of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of any
party for disobeying any such orders,
except an order to submit to a
physical or mental examination.
Section 4. Refusal to admit.
Thecourtuponproperapplicationmayordert
heformertopay
thereasonableexpensesinmakingsuchproo
f,includingattorneysfees. If:
1. A party requests for the admission of
either:
a. The
genuineness
of
anydocument,or
b. The truthofanymatteroffact
2. The party requested refuses to admit
the same and thereafter serves a
sworn denial thereof, and;
3. The party requesting for admission
proves
the
genuineness
or
truthfulness, as the case may
be;then,thepartyrequesting
fortheadmissionmayapplytothecourtfo
ranorderrequiringtheadversepartytopa
yreasonableexpensesincurredinmakin
gsuchproof,includingattorney'sfees.
Section
5.
Failure
to
attend
depositions or to serve answers to
interrogatories.
1. Strikeoutalloranypartofthepleadingof
thedisobedientparty;
2. Renderajudgmentbydefaultagainstthe
disobedientparty;
3. Orderhimtopayreasonableexpensesinc
urredbytheother,includingattorneysfe
es.
Othersanctions:
1. Stay further proceedings until order
is obeyed;
2. Dismisstheactionorproceeding;
3. Arrestthedisobedientpartyorhisagent.

Notes:
1. TheRepublicofthePhilippinescannotbe
requiredtopayexpensesandattorneysf
eesunderthisRule.
2. Thematterofhowand
whentheabovesanctionsshouldbeappl
iedisonethatprimarilyrestsonthesoun
ddiscretionofthecourtwherethecaseis
pending

RULE 30
TRIAL
Itisanexaminationbeforeacompetentcourto
rtribunalofthefactsorlawputinissueinacas
eforthepurposeofdeterminingsuchissue.
Inalimitedsense,trialreferstothestageofaca
se when the parties present their
evidence
before
thecourtuptothepointwhenthecaseisdeem
edsubmittedfordecision (Riguera2015).
General Rule: Decision should not be
madewithouttrial.
Exceptions:Whenistherejudgmentwithout
trial:
1. Judgmentonthepleading(Rule34);
2. Summaryjudgment(Rule35);
3. Judgmentoncompromise;
4. Judgmentbyconfession;
5. Dismissalwithprejudice(Rule17);
6. JudgmentunderRuleon
SummaryProcedure;
7. Stipulationoffacts.(Sec.6Rule30)
Sec.1. Notice of Trial.
Theclerkshallnotifythepartiesofthedateof
trial,uponentryofthecaseinthetrialcalenda
r
in
such
manner
asshallensuretheirreceiptofthatnoticeatlea
st5daysbefore suchdate.

117

118
Sec.2.Adjournment
Postponements.

and

General Rule: A court may adjourn a


trial from day to day and to any stated
time
Exception: The court can go beyond the
period provided by law when authorized
in writing by the Supreme Court.
Limitations: The court shall have no
power to:
1. Adjourn a trial for more than 1 month
for each adjournment
2. More than 3 months in all
Except when authorized in writing by
the Supreme Court.
Sec. 3 .Requisites Of Motion to
Postpone Trial.
A. For Absence of Evidence
1. A motion to postpone trial on the
ground of absence of evidence
must be filed
2. Motion must be supported by a
verified affidavits showing:
a. Materiality or relevancy of
such evidence
b. That due diligence has been
used to procure it

a. That the presence of such


party or counsel at the trial
is indispensable
b. The character of his illness is
such as to rende his nonattendance excusable.
Note: Motion for postponement
discretionary to the court.

is

Section 6. Agreed Statement of Facts.


Agreement as to statement of facts must
be in writing although it may also be
verbally made in court.
If the parties agree only on some of the
facts, trial shall be held as to the disputed
facts.
JUDGMENT BASED ON STIPULATION
OF FACTS
General Rule: Parties agree in writing
upon the facts involved in the litigation,
they will submit the agreed facts or the
case for decision.
Exception:
Judgment
based
on
stipulation of facts is not allowed in
actions for declaration of nullity of
marriage, annulment of marriage and
legal separation (Riguera, 2013, citing
Arts. 48 & 60 of Family Code).

Note: If the adverse party admits the facts


to be given in evidence, the trial shall not
be postponed even if he objects or
reserves the right to object their
admissibility.

Rationale: The agreed statement of facts


is conclusive on the party and court.
Neither of the parties may withdraw from
the agreement.

B. For Illness of Party or Counsel.


1. A motion to postpone trial on the
ground of illness of a party or
counsel must be filed
2. The motion must be supported by
an affidavit or sworn certification
showing:

Section 7. Statement of Judge.


Any statement made by the judge with
reference to the case or to any of the
parties, the witnesses or counsel, in the
course of the hearing or trial of a case
shall be made of record in the
stenographic notes.
Section 8. Suspension of Actions

(Sec.8 and Art.2030 of the Civil Code).


ARTICLE 2030: Every civil action or
proceeding shall be suspended:
1. The willingness to discuss a possible
compromise is expressed by on or
both parties
2. Appears that one of the parties before
the commencement of action offered
to discuss a possible compromise but
the other party refused the offer.
Section 5. Order of Trial; Reversal of
Order.
Thetrialshallbelimitedtotheissuesstatedint
hepre-trialorderandshallproceedasfollows:
1. Theplaintiffshalladduceevidenceinsup
portofhisclaimorcauseofaction(evidenc
einchief);
2. Thedefendantshallthenadduceevidenc
einsupportofhisdefense,counterclaim,
cross-claim,andthird-partycomplaint;
rd
3. The3 partydefendant,ifany,shalladdu
ceevidenceofhisdefense,counterclaim,c
th
ross- claim,and4 partycomplaint;
th
4. The4 party
andsoforth,ifany,shalladduceevidence
of the material facts pleaded by them;
5. Thepartiesagainstwhomanycountercla
imor cross-claim has been pleaded,
shall
adduce
evidenceinsupportoftheirdefense,inthe
ordertobeprescribedbythecourt;
6. Thepartiesmaythenrespectivelyadduce
rebuttingevidenceonly,unlessthecourt,
forgoodreasonsand
inthefurtheranceofjustice,permitsthe
mtoadduceevidenceupontheiroriginalc
ase;and
7. Uponadmissionofthe
evidence,thecaseshall
bedeemedsubmittedfordecision,unless
the
court
directs
theparties
toargueortosubmittheirrespectivemem
orandaoranyfurtherpleadings.

Note: Ifthereareseveraldefendants,orthird
partydefendantsandsoforth,whohavesepar
atedefenses,thecourtshalldeterminetherel
ativeorderofpresentationoftheirevidence.
Trial
in
reverse
defendantpresentsevidenceaheadoftheplai
ntiff.
Whenproper
If the defendant instead of filing a motion
to dismiss files an answer, invoking the
ground as an affirmative defense.
DELEGATION OF RECEPTION OF
EVIDENCE
Section 9. Judge to receive evidence;
Delegation to clerk of court.
General rule: The judge shall personally
receive the evidence adduced by the
parties and resolve any objections to any
question or to the admission of exhibits.
Exception:The
reception
may
delegated to the clerk of court: (DEW)

be

1. In default or ex parte hearings; and


2. In any case where the parties agree in
writing.

RULE 31
CONSOLIDATION OR
SEVERANCE
Consolidation or Severance of Hearing
or Trial
Consolidation
of
Action

is
interchangeable with joint trial although
the former includes the situation wherein
some of the consolidated cases are
decided without trial but according to the
result of the one selected (Riguera, 2013).

119

120
Section 1. Consolidation.
The curt may order a joint hearing or trial
of any or all matters in issue when
actions involving a common question of
law or fact are pending before the court.
Purpose of Consolidation
1. To avoid multiplicity of suits
2. Guard against oppression or abuse
3. Prevent delay
4. Clear congested dockets
5. Simplify the works of the trial court
and save unnecessary costs and
expense
Ways of Consolidating Cases:
1. By Recasting the cases already
instituted conducting only one
hearing and rendering only one
decision.
2. By Consolidating the existing cases
holding only one hearing and
rendering only one decision.
3. By Hearing only the principal case
(Test-Case Method) suspending the
hearing on the others until judgment
has been rendered in the principal
case.
Consolidation of cases on appeal and
assigned to different divisions of the
SC and the CA is also authorized.
Generally, the case which was appealed
later and bearing the higher docket
number is consolidated with the case
having the lower docket number.
Many authorities held that consolidation
may occur even if cases are pending
before different courts or tribunal. The
necessary thing is that actions involve the
common questions of law or fact
(Superlines Transportation v. Victor).
Section .2. Separate Trials.

Severance refers to separate trial of any


claim, cross-claim, counterclaim or third
party complaint, in furtherance of
convenience or in the interest of justice.
Section 9. Delegation of Reception of
Evidence.
General Rule: The judge shall personally
receive the evidence adduced by the
parties and resolve any objections to any
question or to the admission of exhibits.
Exception: The reception may be
delegated to the clerk of court. (DEW)
1. In default or ex parte hearings
2. In any case where the parties agree in
writing
Trial by Commissioners
Commissioner - the person to whom a
cause pending in court is referred, for him
to take testimony, hear the parties and
report thereon to the court, and upon
whose report, if confirmed, judgment is
rendered.
Two kinds under Rule 32
1. Reference by consent. Refer to Rule
32, Sec. 1.
2. Reference ordered on motion. Refer to
Rule 32, Sec. 2
REFERENCE TO COMMISSIONER BY
CONSENT
Reference of a case to a commissioner
must be by a written consent of both
parties.
The commissioner may be appointed by
the parties or by the court.
REFERENCE
BY
CONSENT
OR
ORDERED ON MOTION
Requisites by order of the court, a case
may be referred to a commissioner:
(WMPE)
1. By written consent of both parties

2. By motion of either party or on


court's initiative in the following
cases: (LAF)
a. When the trial of an issue of
fact requires the examination
of a long account on either
side;
b. When the taking of an account
is
necessary
for
the
information of the court before
judgment, or for carrying a
judgment or order into effect,
or;
c. When a question of fact, other
than pleadings arises upon
motion or otherwise, in any
stage of a case, or for carrying
a judgment or order into effect.
3. In expropriation cases for the
purpose of determining
just
compensation (Sec. 5 Rule 67)
4. In partition cases, where the
parties are unable to agree upon a
partition. (Sec. 3 Rule 69; Riguera,
2013).
Sec.3.Order of Reference.
Role of Clerk of Court is to furnish the
commissioner with a copy of the order of
reference.
Contents of order of reference:
1. Specify or limits the power.
2. Direct the commissioner to report
on particular issues, to do or
perform particular acts, to receive
or report evidence
3. Fix the date for beginning and
closing the hearings and filing of
report.
Powers of a Commissioner
Subject
to the
specifications and
limitations stated in the order, the
Commissioner shall have the following
powers:
1. To regulate the proceedings in
every hearing.

2. To do all acts and take all


measures necessary or proper for
the performance of duties.
3. Issue subpoenas and subpoena
duces tecum.
4. To swear witness.
5. To rule upon the admissibility of
evidence.
Failure of parties to appear before the
Commissioner. Refer to Rule 32, Sec.6)
The commissioner may proceed ex parte
or, in his discretion, adjourn the
proceedings to a future day, giving notice
to the absent party or to his counsel.
Section 7. Refusal of Witness to Obey
Subpoena.
The refusal of a witness to obey a
subpoena issued by the commissioner or
to give evidence before him shall be
deemed a contempt of the court which
appointed the commissioner. Such refusal
constitutes indirect contempt under Rule
71, Sec. 3 (Riguera, 2013).
Secs.9-11.Commissioners
Report;
Notice to Parties and Hearing Upon
The report must be in writing upon
matters submitted to him by order of
reference. If powers are not specified, he
shall set forth his findings of fact and
conclusions of law.
UPON FILING OF THE REPORT OF THE
COMMISSIONER:
1. The party shall be notified by the
clerk;
2. Be allowed 10 days within which to
object to the findings of the report.
Objections to the report based upon
grounds which were available during the
proceedings before the Commissioner
shall not be considered by the court,

121

122
UNLESS, they were made before the
commissioner.
The report shall be set for a hearing. The
court shall order adopting, modifying, or
rejecting the report in whole or in part, or
recommitting it with instructions, or
require parties to submit further evidence
before the commissioner or court.
STIPULATIONS AS TO FINDINGS
When the parties stipulate that the
commissioners findings of fact shall be
final, only questions of law shall
thereafter be considered.

RULE 32
TRIAL BY COMMISSIONER
When case may be referred by the
order of the court to a commissioner
a. By written consent of both parties
b. By motion of either party or on the
courts initiative in the following
cases:
1. When the trial of an issue
if
fact
requires
the
examination of a long
account on wither side;
2. When the taking of an
account is necessary for
the information of the
court before judgment, or
for carrying a judgment or
order into effect; or
3. When a question of fact,
other than upon pleadings,
arise upon motion or
otherwise, in any stage of a
case, or for carrying a
judgment or order into
effect.
c. In expropriation cases for the
purpose of determining
just
compemsation. (Sec. 5, Rule 67)

d. In partition cases, where the


parties are unable to agree upon a
partition. (Sec. 3, Rule 69)
Powers of the Commissioner
1. Regulate the proceedings in every
hearig before him and to do all
acts and take all measures
necessary and proper for the
efficient performance of his duties
under the order of reference;
2. Issue subpoenas and subpoenas
duces tecum;
3. Swear witnesses;
4. Unless otherwise provided in the
order of reference, he may rule
upon the admissibility of evidence.
If a witness refuse to obey a subpoena
issued by the commissioner or to give
evidence before him, the witness shall be
deemed in contempt if the court which
appointed the commissioner. (Sec. 7) The
commissioner has no power to cite the
witness in contempt. Such refusal
constitutes an indirect contempt. (Sec. 3)
Upon the completion of the trial or
hearing
or
proceeding
before
the
commissioner, the latter shall file within
the court his report in writing upon the
matters submitted to him by the order of
reference. He shall attached thereto all
exhibites, affidavots, depositions, papers
and the transcript, if any, of the
testimonial evidence presented before
him.

Thereafter, the court shall set the report


for hearing, after which the court shall
issue an order adopting, modifying or
rejecting the report in whole or in part, or
recommitting it with instructions or
requiring the parties present further
evidence before the commissioner or the
court. (Sec. 11). If the parties had
stipulated that the commissioners factual
findings shall be final, the court may only

consider questions of law arising from the


report. (Sec. 11)

RULE 33
DEMURRER TO EVIDENCE
Grounds:
1. Demurrer to evidence is a motion to
dismiss based on the ground of
insufficiency of evidence and is
presented after the plaintiff rests his
case
2. A motion to dismiss filed by the
defendant after the plaintiff has
completed the presentation of his
evidence on the ground that upon the
facts and the law, the plaintiff has
shown no right to relief (Riguera,
2013).
Nature: There is only a one-sided trial.
Example: It is only the plaintiff who has
presented evidence.
Purpose:
litigations.

To

discourage

prolonged

Effects of Denial:
1. Defendant shall have the right to
present evidence
2. The date for reception of defendants
evidence should be set
3. The order is interlocutory and
therefore not appealable but can be
subject of petition for certiorari in
case of grave abuse of discretion or
oppressive
exercise
of
judicial
authority.
Effects of Grant:
1. The case shall be dismissed
2. The appellate court should render
judgment
3. On appeal, if the order of dismissal is
reversed, the movant shall be deemed

to have waived his right to present


evidence.
This means the plaintiff already wins the
case since the appellate court should
render judgment for the plaintiff on the
basis of his evidence alone (Riguera,
2015).

Waiver of Right To Present Evidence


Occurs when the motion to dismiss on
the ground of demurrer to evidence has
been granted by the lower court but
reversed on appeal.
Movant is deemed to have waived his right
to present evidence. The decision of the
appellate court will be based only on
evidence of the plaintiff as the defendant
loses his right to have the case remanded
for reception of his evidence.
Q: After the prosecution had rested and
made its formal offer of evidence, with the
court admitting all of the prosecution
evidence, the accused filed a demurer to
evidence with leave of court. The
prosecution was allowed to comment
thereon. Thereafter, the court granted the
demurer, finding that the accused could
not have committed the offense charged.
If the prosecution files a motion for
reconsideration on the ground that the
court order granting the demurer was
not
in
accord
with
law
and
jurisprudence,
will
the
motion
prosper? (BAR 2009)
A:NO, the motion will not prosper. With
the granting of the demurrer, the case
shall be dismissed and the legal effect is
the acquittal of the accused. A judgment
of acquittal is immediately executor and
no appeal can be made therefrom.
Otherwise the Constitutional protection
against double jeopardy would be

123

124
violated.
Civil Cases
Criminal Cases
AS TO REQUIREMENT FOR
LEAVE OF COURT
Not required before May be filed with
filing a demurrer or without leave of
court
RIGHT TO APPEAL
1. If demurrer is
granted, the order of
dismissal is
appealable. Refer to
Rule 33, Sec.1.
2. If on appeal and
the order of dismissal
was reversed by the
appellate court, the
defendant loses his
right to present
evidence (Radiowealth
v Sps. Del Rosario, GR
No. 138739, 2000).

The
order
of
dismissal is not
appealable
because of the
constitutional
policy
against
double jeopardy.

determination by a court of the right of


the parties, upon matters submitted to it
in an action or proceeding.
Requisites for a Valid Judgment:
1. The court or tribunal must be clothed
with authority to hear and determine
the matter before it (Riano, 2015 citing
Acosta vs.COMELEC, 293 SCRA 578,
580).
The term "clothed with authority"
includes jurisdiction over the subject
matter of the case and over the person
of the defendant, or over the res, in an
action in personam or quasi in rem
(SPR). (Riguera, 2015).
2. Parties must have been given an
opportunity to adduce evidence in
their behalf (Riano, 2011 citing Acosta
vs. COMELEC, 293 SRA 578, 580).
Indispensible parties should
been impleaded. (Riguera, 2013)

EFFECTS OF DENIAL
If demurrer is denied, If denied:
the defendant may 1. With leave of
proceed to present his court,
accused
evidence. may present his
evidence.
2. Without leave of
court, accused can
no longer present
his evidence and
submits the case
for decision based
on
the
prosecutions
evidence.

JUDGMENTS AND FINAL ORDERS


Judgment the final consideration and

have

3. It should be in writing. A verbal


judgment is, in contemplation of law,
not in esse, therefore, ineffective
(Riano, 2014 citing Corpus vs.
Sandiganbayan, 442 SCRA 294, 309);
4. It must state clearly and distinctly
state the facts and the law on which it
is based, signed by the judge and filed
with the clerk of court; and
5. It should contain a dispositive part
(Riano 2014, citing Cu-Unjieng vs.
Mabalacat Sugar Co., 70 Phil. 384) and
should be signed by the judge and
filed with the clerk of court.
Note: Findings of fact Statement of
facts in judgment must be supported
by evidentiary facts. This rule,
however, does not require that the

court shall state in its decision all the


facts found in the records (Riano
2011, citing People vs. Derpo, 168
SCRA 447, 455).
TYPES OF JUDGMENTS:
1. Judgment by Default - It is a
judgment granting the claimant such
relief as his pleading may warrant
after the defending party fails to
answer within the time allowed
therefore, upon motion of the claiming
party, with notice to the defending
party, and proof of such failure to
answer. (Rule 9, Sec. 3)
2. Judgment on the Pleadings - It is a
judgment based solely on the relief
prayed for in the complaint without
plaintiff
adducing
any
evidence
(Riguera, 2014).
3. Summary Judgment - A judgment
rendered by a court without a fullblown trial, if the court finds that,
except as to the amount of damages,
there is no genuine issue as to any
material fact and the plaintiff or
defendant is entitled to a judgment as
a matter of law (Riguera 2015).
4. Several Judgment - A judgment
rendered by a court against one or
more defendants, but not against all,
leaving the action to proceed against
the others (Riano, 2014 citing Rule 36,
Sec. 4).
5. Separate Judgment - This kind of
judgment presupposes that there are
several claims for relief presented in a
single action. The court may render
separate judgment on one of the
several claims. The judgment will
terminate the action with respect to
that claim and the action shall
proceed as to the remaining claims.

The court may stay the execution of


the separate judgment until the
rendition of a judgment on all the
other claims (Riano, 2011 citing Rule
36, Sec. 5).
6. Judgment for Specific Acts - A
judgment which directs a party to
execute a conveyance of land or
personal property, or to deliver deeds
or other documents, or to perform any
other specific act. ( Rule 39, Sec. 10)

7. Special Judgments - One which


requires the performance of any act,
other than the payment of money or
the sale or delivery of real or personal
property, which a party must
personally do because his personal
qualifications and circumstances have
been
taken
into
consideration
(Riguera, 2013 citing Caluag vs.
Pecson, 82 Phil. 8; Rule 39, Sec.11).
8. Judgment
upon
a
Confession
(Cognovit Judgment) one entered
against a person upon his admission
or confession of liability without the
formality, time and expense involved
in an ordinary proceeding.
9. Judgment upon Compromise
judgment rendered with the consent
of the parties for the purpose of
effecting compromise or settlement of
an action.
General Rule: A lawyer cannot
compromise his clients litigation
without special authority.
Exception: If upon knowledge of such
compromise, the client failed to
repudiate the action of the lawyer.

125

126
Note:
Effect
of
Compromise
agreement entered into by a lawyer
without
special
authority
is
Unenforceable.
Effect of a judgment based upon
Compromise Agreement
a. The compromise agreement is not
appealable and it is immediately
executory
b. It cannot be annulled
Unless vitiated with error, deceit,
violence or forgery of documents
c. It constitutes res judicata
Judicial Compromise Substantive law
does not require a court approval for the
res judicata effect of a compromise
agreement to attach. However, there shall
be no execution of the compromise
agreement except in compliance with a
judicial compromise (Riano 2011, citing
Art. 2037, Civil Code).
10. Clarificatory Judgment - Where the
judgment is difficult to execute
because of ambiguity in its terms, it is
suggested that the remedy to avail of
is to have the court remove the
ambiguity by the filing of a motion for
a clarificatory judgment and not to
assail the judgment as void (Riano,
2014).
11. Nunc
Pro
Tunc
Judgment
(Judgment now for then) entry
made now of something which was
actually
previously
done;
One
rendered to record some judicial act
done at a former time but which was
not carried into record (Riguera 2013).
It cannot correct judicial errors,
however flagrant and glaring these
may
be
(Riguera
2013,
citing
Henderson v Tan, 87 Phil. 466), nor
can it construe what a judgment

means (Lichauco v Tan Po, 51 Phil.


862).
12. Sin Perjuicio Judgment one which
contains only the dispositive portion
of the decision and reserves the
making of findings of fact and
conclusions of law in a subsequent
judgment. They are prohibited. They
are judgments without statement of
facts in support of its conclusion
which is void for it violates Sec. 15,
Article VIII of the Constitution.
Thus, the party adversely affected
would be unable to file a motion for
reconsideration
or
appeal
the
judgment for he has to speculate on
the grounds upon which the judge
based his decision (Riguera 2013).
13. Conditional Judgment one which
is subject to the performance of a
condition precedent and is not final
until the condition is performed. Such
judgment is generally void because of
the absence of a disposition (Riano
2011, citing Cu-Unjieng v Mabalacat
Sugar Co., 70 Phil. 384)
14. Incomplete Judgment one which
leaves certain matters to be settled in
a subsequent proceedings.
Default
Judgment

Defendant
failed to file
an answer.

Judgment
upon the
Pleadings
Defendant
filed an
answer but
does not
contain any
defense.

Judgment upon

Judgment
upon
Confession
Defendant
will not file an
answer but
will tell the
court the he
is admitting
his liability.

Judgment upon

Compromise
1. The liability of
the defendant is
to be determined
in accordance
with the terms
of the agreement
of the parties

2. There is
mutual or
reciprocal
concessions

Confession
1. The defendant
confesses the
action and
consents to the
judgment that
the court may
render in
accordance with
the compromise
and the prayer.
2. It is unilateral.
It only comes
from the
defendant.

Dormant Judgment one that is not


enforced within 5 years.

Rendition of Judgment
The filing of the same with the clerk of
court,
not the
pronouncement
of
judgment in open court (Riano, 2011).
Even if the judgment has already been
put in writing and signed, it is still
subject to amendment if it has not yet
been filed with the clerk of court and
before its filing it does not yet constitute
the real judgment of the court (Riano,
2011 citing Ago v CA, 6 SCRA 530, 535).
JUDGMENT WITHOUT TRIAL
1. Default Judgment A binding
judgment in favor of either party on
some failure to take action by the
other party.
It is a judgment granting the claimant
such relief as his pleading may
warrant after the defending party fails
to answer within the time allowed,
upon motion of the claiming party,
with notice to the defending party and

proof of such failure to answer or


appear before the court of law. Refer
to Rule 9, Sec.3.
2. Summary
Judgment

A
determination made by a court
without a full trial.
Judgment may be issued as to the
merits of an entire case or specific
issues in that case.
3. Voluntary Dismissal The lawsuit is
terminated by voluntary request of the
plaintiff. Refer to Rule 17, Secs. 1-2.
CONTENTS OF JUDGMENT
1. The opinion of the court contains
the findings of facts and conclusion of
law
2. The
disposition
of
the
case
(Dispositive part) final and actual
disposition of the rights litigated
3. Signature of the judge(Herrera)
Conflict
between
the
Dispositive
Portion (fallo) and Body of the Decision
(ratio decidendi)
General Rule: The fallo controls. The fallo
is the final order while the opinion in the
body is merely a statement ordering
nothing.
Exception: The body or ratio decidnedi
will prevail while the inevitable conclusion
from the body of the decision is so clear
that there was a mere mistake in the
dispositive portion (Riano, 2014 citing So
v Food Fest Land Inc., 642 SCRA 492,
2011).

RULE 34
JUDGMENT ON THE PLEADINGS

127

128
Q: What is
pleadings?

judgment

on

the

A: It is a judgment based solely on the


relief prayed for in the complaint without
plaintiff adducing any evidence (Riguera,
2013).
Judgment on the pleadings is proper
when an answer fails to render an issue
or otherwise
admits the
material
allegation of the adverse partys pleading.
However, the trial court cannot direct a
judgment on the pleading in the absence
of a motion filed for the purpose by a
party litigant (De Luna v Abrigo, 181
SCRA 150).
Note: There must be a motion by a party.
Q: When may the court
judgment on the pleadings?

render

A:Grounds:
1. When answer fails to tender an issue
by reason on:
a. General
denial
of
material
allegations of the compliant
b. Insufficient denial of the material
allegations of the compliant
2. When answer admits the material
allegation of the adverse partys
pleading, the court may, on motion of
that party, direct judgment on such
pleading (Rule 31, Sec.1)
3. Under the Rules on Summary
Procedure, should the defendant fails
to answer the complaint within 10
days from service of summons.
4. Where the defendant is declared in
default, the court shall proceed to
render
judgment
granting
the
claimant such relief as his pleading
may warrant, unless the court in its
discretion requires the claimant to
submit evidence (Rule 9, Sec.3)

5. During Pre-trial, the court may render


a judgment on the pleadings if it finds
a valid ground (Rule 18, Sec. 2 [g]).
6. As a penalty for non-compliance or
refusal to answer in discovery
proceedings, the court may render
judgment by default against the
recalcitrant or disobedient party
(Riguera, 2015; Rule 29, Sec. 3&5).
WHEN NOT PROPER:
1. When the answer raises an issue.
2. In actions for annulment of marriage
or for legal separation or declaration
of nullity of marriage.
3. Issue is the amount of unliquidated
damages (Rule 8, Sec.11).
4. Only questions of law are being
alleged.
IMPLIED ADMISSION UNDER THIRD
MODE OF SPECIFIC DENIAL:
The third mode of specific denial may not
be availed of when the fact as to which
want of knowledge or information is
claimed is so plainly and necessarily
within the defendants knowledge that his
averment of ignorance must be palpably
untrue.
The defendant must aver positively or
state how it is that he is ignorant of the
fact alleged. Since there is an implied
admission of material averments of the
complaint, a judgment on the pleadings
may be rendered (Riguera, 2015 citing
Capital Motorts v. Yabut, 32 SCRA 1).
JUDGMENT ON THE PLEADINGS MAY
BE RENDERED ONLY UPON MOTION
General Rule:A court may direct
judgment on the pleadings only if there is
a motion to that effect (Riguera, 2013
citing Rule 34, Sec.1).

Exception:Trial court may render a


judgment on the pleadings if, after the
pre-trial, the facts warrant such judgment
(Regalado citing Taleon v Sec. of Public
Works & Communication, GR No.L-24281,
1967).
DEEMEDADMITTEDBYTHEMOVANT:
Onewhopraysforjudgmentonthepleadings
withoutofferingproofastothetruthofhisown
allegations,andwithoutgivingtheopposing
partyanopportunitytointroduceevidence,i
mpliedlyadmitsthetruthofallthematerialan
drelevantallegationsoftheopposingparty,a
ndtoresthismotionforjudgmentonthosealle
gationstakentogetherwithsuchofhis
ownareadmittedinthepleadings.
(Riguera,2013 citingSanchezvRigos, 45
SCRA 368).
The
plaintiff,
by
moving
for
judgmentonthepleadings,isnotdeemed
tohaveadmittedirrelevantallegationsinthe
defendant'sanswer
(Regalado,RemedialLawCompenium,Tenth
Edition,citingAranetavPerez, G R N o . L207878,1965),neitheristhedefendantdeemedtoh
aveadmittedallegationsofdamagesintheco
mplaint(Ibid.,citingAbubakarTanvTianHo,
GR No.L-18820,1962).
Hence,therecanbenoawardofdamagesinthe
absenceofproof(Ibid.,citingLichaucovs.Gua
sh,76Phil.,5).

RULE 35
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: It is a judgment rendered by a court
without a full-blown trial, if the court
finds that, except as to the amount of
damages, there is no genuine issue as to

any material fact and the plaintiff or


defendant is entitled to a judgment as a
matter of law.
REQUISITES OF A VALID SUMMARY
JUDGMENT:
1. Upon filing of a motion
2. After issues have been joined
3. The court finds that there is no
genuine issue as to any material fact
based on the pleadings, supporting
affidavits, depositions and admissions
on file,

4. The moving party is entitled to a


judgment as a matter of law.
Genuine Issue an issue of fact which
calls for the presentation of evidence as
distinguished from an issue which is
fictitious and contrived, set up in bad
faith and patently unsubstantial so as not
to constitute a genuine issue for trial.
Section 1: For The Claimant.
A party seeking a claim, counterclaim or
cross-claim or to obtain a declaratory
relief may, at any time after the pleading
in answer has been served, move with
supporting affidavits, depositions or
admissions for a summary judgment in
his favor upon all or any part thereof
(Riguera, 2013).
Section 2: For the Defendant.
A party against whom a claim,
counterclaim, cross-claim or is asserted
or a declaratory relief is sought may, at
any time, move with supporting affidavits,
depositions or admissions for a summary
judgment in his favor as to all or any part
thereof.
WHEN NOT PROPER:
1. Declaration of nullity of marriage

129

130
2. Annulment of marriage
3. Legal separation
Section 4: When The Case Not Fully
Adjudicated.
If judgment is not rendered upon the
whole case or for all the reliefs sought and
a trial is necessary, the court at the
hearing of the motion shall ascertain the
existence of materials facts without
substantial controversy including the
amount
of
damages
and
those
controverted in good faith. The trial shall
be conducted on the controverted facts
accordingly.
Partial Summary Judgment A
judgment not on the entire case but only
on the specified factual issues with the
court proceeding to try the other factual
issues.
Propriety of Summary Judgment may be
corrected only on appeal or other direct
review and not by certiorari.
Separate Appeal on Partial Summary
Judgment from Judgment in the Entire
Case
General Rule: A partial
judgment is not appealable.

summary

Exception: Unless allowed by the court


under Rule 41, Sec.1 (f).
The failure to appeal separately from a
partial summary judgment or to challenge
by special civil action for certiorari does
not make the same final and executor
(Riguera, 2013 citing Business Bank v
Chua, 2010).
Section 6. Affidavits and Attachments
IN BAD FAITH.
Should it appear that any of the affidavits
are presented in bad faith or solely for the

purpose of delay, the court shall order the


offending party or counsel to pay to the
other party the amount of reasonable
expenses and attorneys fees which the
filing of the affidavits caused him to incur.
Note: While the rules expressly mention
only supporting affidavits, depositions or
admissions, there is NO bar to
supporting the motion for summary
judgment with documents or exhibits.
Rule 35, Sec.5 provides that Certified
true copies of all papers or parts thereof
referred to in the affidavit shall be
attached thereto or served therewith
(Riguera, 2009). Hence, the court can go
outside of the pleadings in determining
whether or not a genuine issue exists.
SUMMARY
JUDGMENTS

JUDGMENT ON
THE PLEADINGS

Basis
Based solely on
Based on
pleadings without
pleadings and
introduction
of
depositions,
evidence.
admissions and
affidavits.
To whom Available
Available to both
parties

Available only to
the plaintiff, unless
the
defendant
presents
counterclaim.

Issues
There may be
issues involved in
the case but such
issues are
irrelevant.

The answer fails to


tender an issue or
there
is
an
admission
of
material
allegations.

When Proper
No genuine issue
of fat to be tried
except among of
damages (Rule

No issue of fact at
all.

35, Sec.3)

Period for Notice of Hearing


3 day notice
10 day notice

RULE 36
JUDGMENTS,FINAL ORDERS,
AND ENTRY THEREOF

JUDGMENT
The final determination by a court of the
rights of the parties in a case submitted
before it.
RENDITION OF JUDGMENT AND FINAL
ORDERS.
A judgment or final order determining the
merits of the case shall be:
1. In writing
2. Personally and directly prepared by
the judge
3. Stating clearly and distinctly the facts
and the law on which it is based
4. Signed by him
5. Filed with the clerk of court
PROMULGATION the process by which
a
decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or their
counsel.
RENDITION OF JUDGMENT filing of
the decision signed by the judge with the
clerk of court.
Q: What are the essential requisites of
a valid judgment?

A: The court rendering the judgment


must have jurisdiction over the subject
matter of the case and over the person of
the plaintiff and defendant, or over the
res, in an action in personam or quasi in
rem.
Q: What is a sin perjuicio judgment?
A: It is a judgment without a statement of
the facts in support of its conclusions.
Such a judgment is void for it violates
Section 14, Article viii of the Constitution.
Thus, the party adversely affected would
be unable to file a motion for
reconsideration or appeal the judgment
for he has to speculate on the grounds
upon which the judge based his decision.
Indispensable parties should have been
impleaded.
Section 2. Entry of Judgment and
Final Order.
The date of the finality of the judgment or
final order shall be deemed to be the date
of its entry.
The judgment or final order shall be
entered by the clerk in the book of entries
of judgments if no appeal or motion for
new trial or reconsideration is filed within
15 days.
Q: What is the Importance of the Date
of Entry?
A:
1. It is the starting point of the 6-month
period for filing a petition for relief
(Sec. 3 Rule 38),
2. The 5- year period for filing a motion
for execution (Sec. 6 Rule 39), and

131

132
3. The 10-year period for filing an action
for revival of judgment (Art. 1144 Civil
Code; Riguera 2015).
APPEAL ON SEPARATE OR SEVERAL
JUDGMENTS
Section 4. Several Judgment
Q: What is a several judgment?
A: It is a judgment rendered by a court in
an
action
against
several
defendantswhere the court renders
judgment against one or more of them,
leaving the action to proceed against the
others.
Q: What is a separate judgment?
A: It is a judgment rendered by a court in
an action wherein more than one claim
for reliefis presented and where the court
renders a separate judgment disposing of
a claim or some of them but allowing the
action to proceed against the remaining
claims.
General Rule: Appeal on either is not
allowed.
Exception: Unless allowed by the court
under Rule 41,Sec.1(g).
PARTIAL
SUMMARY
JUDGMENT
Governed
by
Section 4, Rule 35.
Presupposes that a
motion
for
summary judgment
has been filed.
Interlocutory order

SEPARATE
JUDGMENT
Governed
by
Section 5, Rule
36.
Not
applicable
to a summary
judgment.
Judgment
final order

or

Cannot
be
appealed until after
judgment in the
entire case has
been rendered.

As a rule not
appealable while
the main case is
pending, unless
the court allows
an
appeal
therefrom.
(Section 1(f) Rule
39)

WHERE AN APPEAL IS ALLOWED:


1. Shall be taken by filing a notice of
appeal
2. Record on appeal
3. Within 30 days from notice of the
order allowing the appeal
Refer to Rule 41, Sec.3 (Riguera,
2014).
Section 6. Judgment against Entity
Without Juridical Personality.
The judgment shall set out their
individual or proper names if known.
WHEN A JUDGMENT OR FINAL ORDER
BECOMES FINAL AND EXECUTORY
(RULE 39, SEC.1)
1. Upon the expiration if the period to
appeal
2. No appeal has been perfected
DOCTRINE OF IMMUTABILITY OF
JUDGMENTS
Sometimes referred to as conclusiveness
of judgments, preclusion of issues or
collateral estoppels (Riano, 2014).
General Rule: Once judgment becomes
final and executory, the judgment can no
longer be disturbed.
Exceptions:
1. Clerical errors or mistake
2. Nunc Pro Tunc entries which cause no
prejudice to any party
3. Void Judgments

Reasons:
1. To avoid delay in the administration of
justice
2. To put an end to judicial controversies
(Riano, 2014).
EFFECTS OF FINALITY OF JUDGMENT
1. The prevailing party is entitled to have
the judgment executed, as a matter of
right and the issuance of the
corresponding writ of execution
becomes a ministerial duty of the
court.
2. The court rendering the judgment
loses jurisdiction over the case so that
it can no longer correct the judgment
in substance, except clerical errors
and omissions due to inadvertence or
negligence.
3. Res judicata supervenes.
Post-Judgment Remedies
Remedies against Judgment or Final
Orders
A. Before Finality
1. Motion
for
New
Trial
Reconsideration (Rule 37)
2. Appeal

or

B. After Finality
1. Relief from judgment (Rule 38)
2. Annulment of judgment (Rule 47)
3. Special civil action for certiorari
(Rule 65)
The power to amend a judgment is
inherent to the court before judgment
becomes final and executor.
MEMORANDUM DECISION
A decision of appellate court which adopts
the true findings of fact and conclusion of
the trial court if it is affirming the latters
decision.This is allowed only in simple
cases.

I. BEFORE FINALITY
A. Motion
for
New
Reconsideration

Trial

or

New Trial the rehearing of case


already decided by the court but
before the judgment rendered
becomes final and executor,
whereby:
1. Errors of law or irregularities
are expunged from the record
2. New evidence is introduced
3. Bothe steps are taken.
When Required
A motion for reconsideration
condition precedent: (CLAN)

is

1. In
cases
for
legal
separation,
annulment, and declaration of nullity
2. In cases involving custody of minors
under the SC Rules on Cases
Involving Custody of Minors and
Habeas Corpus issued in relation
thereto (Riguera 2013).
When Prohibited
A motion for new trial or reconsideration
is prohibited: (SISE)
1. Under Rules on Summary Procedure
2. Cases governed by the Rules of
Procedure
on
Intra-Corporate
Disputes
3. Cases governed by Rules of Procedure
for Small Claims Cases
4. Ejectment Cases (Riguera 2013).

RULE 37
NEW TRIAL OR
RECONSIDERATION

133

134
Section 1. Grounds for New Trial.
(FAME-N)
1. Fraud,
Accident,
Mistake
or
Excusable
negligence,
which
ordinary prudence could not have
guarded against and by reason of
which the aggrieved party has
probably impaired in his rights.
FRAUD - As a ground for new trial, must
be extrinsic or collateral, that is, it is the
kind of fraud which prevented the
aggrieved party from having a trial or
presenting his case to the court, or was
used to procure the judgment without fair
submission of the controversy (Regalado).
TWO KINDS OF FRAUD
a.
Extrinsicfraud
is
thedeceptionortrickerybywhichtheagg
rievedpartywaspreventedfromhavingtri
alorpresentinghiscasebeforethecourt(
Riguera2013).
Example:
testifying.

Prevent

witness

from

b. Intrinsic Fraud refers to acts of a


party during the trial which does not
affect the presentation of the case.
Example: Presentation of a forged
promissory note.
ACCIDENT - An event that takes place
without ones foresight or expectation. It
is similar to the concept of fortuitous
event in civil law. (Riguera 2015)
Example: A party, after being hit with a
car, fails to attend the trial.
MISTAKE - refers to mistakes of fact or
law where, in good faith, the defendant
was misled in a case

Example: A party, relying upon a


compromise, fails to answer and was
declared in default.
EXCUSABLENEGLIGENCE
The
failuretotaketheproperstepsattheproperti
mewithoutcarelessness,inattention,orwillf
uldisregardoftheparty,whichdependsupon
circumstancesofthecase.
2. Newly Discovered Evidence (NDE),
which he could not, by reasonable
negligence, have discovered and
produced at trial, and which if
presented, would have probably
altered the result.
Requisites of NDE (The Berry Rule):
a. It is discovered after trial
b. It could not have been discovered
and produced at trial despite
exercise of reasonable diligence
c. It must be material and not merely
collateral
or
cumulative
or
corroborative,
or
purely
for
impeaching a witness
d. If presented, it could probably
alter the result of the action.
(Berry v State of Georgia, 1851).
Newly discovered evidence need not be
newly created evidence. It commonly refer
to evidence already in existence prior or
during trial but which could not have
been secured and presented during trial
despite reasonable diligence on the part of
the litigant (Tumang v CA, GR No.8234647, 1989).
Motion for New Trial on Appeal. (Rule
53, Sec.1)
Atany
timeaftertheappeal
fromthelowercourthasbeenperfectedandbe
foretheCourtofAppealslosesjurisdictionove
rthecase,apartymayfileamotionfornewtrial
onthegroundofnewlydiscoveredevidencew
hichcouldnothavebeendiscovered priorto

thetrialinthecourtbelowbytheexerciseofdu
ediligenceandwhichisofsuchcharacter
aswouldprobablychangetheresult(Riguera,
2013).

new trial without


retaking the same.

Motion for New Trial in SC


General Rule: In civil cases, a motion for
new trial may not be filed with the SC.
Such remedy is not provided under the
Rules of Court.
Exception:Exceptional circumstances, SC
may take cognizance of factual issues by
virtue of its plenary judicial power
(Riguera, 2013, citing Feria, 1997 Rules
of Civil Procedure 201, 1997).
Q: What are the grounds for motion for
reconsideration? (ICE)
A:
1. The damages awarded are excessive
2. The device is insufficient to justify the
decision or final order
3. The decision or final order is contrary
to law.
MOTION FOR NEW
TRIAL
Grounds: FAME and
NDE
Second motion for
new trial may be
allowed.
If
new
trial
is
granted, the court
will set aside the
judgment or final
order.
Recorded evidence
taken
upon
the
former
trial,
if
material
and
competent
to
establish the issues,
shall be used at the

MOTION FOR
RECONSIDERATION
Grounds: ICE
Second
prohibited.

MR

is

If the court finds that


excessive damages have
been awarded or that
the judgment or final
order is contrary to the
evidence or law, it may
amend such judgment
or
final
order
accordingly.

When to File
Motion for new trial or reconsideration
must be filed within 15 days from notice
of judgment and resolved by the court
within 30 days from submission for
resolution.
Section 2. Contents of Motion for New
Trial (WAS)
1. The motion shall be in writing
2. State the grounds: (FAME-N)
3. A motion based on:
a. FAME shall be supported by an
Affidavit of Merits
b. NDE shall be supported by:
i.
Affidavits of the Witnesses by
whom
such
evidence
is
expected to be given,
ii.
Duly authenticated documents
which are proposed to be
introduced
in
evidence
(Riguera,Primer-Reviewer
on
Remedial Law, 2015).
Affidavit of Merits: (FEN)
1. Nature and character of FAME on
which it is based
2. Facts constituting the movants good
and substantial cause of action or
defense
3. Evidence he intends to present if the
motion is granted, which evidence
must be such as to warrant a
reasonable belief that the result of the
case would probably be different, if
new trial were conducted (Riguera,
2013).
Section 2. Contents of a Motion for
Reconsideration
1. Specifically point out the findings or
conclusions of the judgment which
are unsupported by evidence or
contrary to law

135

136
2. With express reference to the
testimonial or documentary evidence
or provisions of law alleged to be
contrary to such findings.

REMEDY WHEN THE MOTION IS


DENIED, FRESH 15-DAY PERIOD RULE
The remedy is appeal from the judgment
or final order.

Pro forma Motion A motion without


affidavit of merits. It is considered as a
mere scrap of paper. This motion shall not
toll the period for appeal.

Neypes Rule or Fresh Period Rule


The aggrieved party has a fresh period
of 15 days from the denial of motion for
reconsideration or new trial within which
to file his appeal. This applies to Rules
40, 41, 42, 43 and 45 (Neypes v CA, GR
No. 141524, 2005).

Section 4. Resolution of Motion


A motion for new trial or reconsideration
must be resolved within 30 days from the
time it is submitted for resolution.
Section 5.Second Motion for New Trial.
Second motion for new trial must be
based on a ground not existing or
available when the first motion was made,
which may be filed during the remainder
of the 15-day period.
Note:
No
second
reconsideration allowed.

motion

for

Section 6. Grant of Motion; Effect.


1. Motion for New Trial
1. FAME there will be trial de novo
2. NDE:
a. No trial de novo
b. Evidence admitted based on
same decision will remain
c. Case will be opened only for the
purpose of admitting the new
evidence
2.Motion for Reconsideration
1. No trial de novo
2. Court will amend its judgment
Section 7. Motion for Partial New Trial
or Partial Reconsideration.
Party is questioning only one aspect or
portion of the case; therefore, the rest can
become final while the disputed portion
does not become final.

Fresh period rule is a period within


which to appeal from the judgment itself.
It is because an order denying a motion
for reconsideration is not appealable
(Riano, p. 433).

FRESH PERIOD RULE


Q:Petitioner filed a complaint in DARABPARAD for ejectment with damages
against respondent. DARAB rendered a
decision in favor of the petitioner. San
Miguel filed a petition for certiorari
arguing that the DARAB Rules of
Procedure adopted the fresh period rule
of 15 days within to file a notice of appeal.
Which is the correct rule in filling a
notice of appeal?
A: The SC ruled that All cases pending
with the Board of Adjudicators, prior to
the effectivity of 2009 DARAB Rules of
Procedure shall be governed by the
prevailing rule at the time of their filing.
The old rule shall not be less than 5 days
in any event, reckoned from the receipt of
the notice of denial and a fresh 15 days
period under the new rule. [Milagrosa
Jocson vs. Nelson San Miguel, Mar. 9,
2016]
Purposes:

1. To standardize the appeal periods


provided in the rules
2. To afford litigants fair opportunity to
appeal their cases.
When Applicable
The fresh period of 15 days becomes
significant only when a party opts to file a
motion for new trial or reconsideration
(Riano, Civil Procedure, 2007 Edition, p.
358).
Retroactive Effect
The "fresh period" rule has a retroactive
application to cases pending and
undetermined upon its effectivity.
General Rule: The procedural laws may
be given retroactive effect to actions
pending and undetermined at the time of
their passage, there being no vested
rights in the rules of procedure.
Note: Amendments to procedural rules
are procedural or remedial in character as
they do not create new or remove vested
rights, but only operate in furtherance of
the remedy or confirmation of rights
already existing (Riano 2011).

Motion for Extension of Time to File


Motion for New Trial or
Reconsideration
May be filed only in connection with the
cases pending before the Supreme Court.
No such motion may be filed before any
lower
court
(Riguera
2013,
citing
Fernandez v CA, 2005).
Appeals In General
APPEAL
A proceeding by which a party seeks from
a higher court the review of a judgment or

final order of a lower court on the ground


that the judgment or final order is against
the evidence or the law (Riguera 2015).
The right to appeal is neither a natural
right nor a part of due process; it is
merely a statutory privilege, and may be
exercised only in the manner and in
accordance with the provisions of law.
WHERE MULTIPLE
ALLOWED

APPEALS

ARE

1.Special proceedings
2.Actions for recovery of property with
accounting
3.Actions for partition of property with
accounting
4.Special civil actions of eminent domain
5.Foreclosure of mortgage
6.Judgment for or against one or more
several defendants, leaving the action to
proceed against the others when allowed
by the court.
Multiple appeals are allowed in one case
to enable the rest of the case to proceed
in the event that a separate and distinct
issue is resolved by the court and held to
be final.
In criminal cases in which the penalty
imposed is death or life imprisonment,
the appeal to the Supreme Court is by
ordinary appeal on both questions of fact
and law.
However, in People v. Mateo (G.R. Nos.
147678-87, July 7, 2004 and A.M. 04-905-SC, Sept. 14, 2004), such cases shall
be appealed to the CA for intermediate
review.
Under the Memorandum issued by the
Supreme Court, the Regional Trial Court
has jurisdiction over intra-corporate

137

138
disputed
and
corporation.

rehabilitation

of

Material Data Rule; Effect of Absence


Therecordonappealshouldcontaindataasw
illshowthattheappealwasperfectedontime.
Note:

Failureoftherecord

onappealtoshowonitsfacethattheappealwa
sperfected

within

theperiodfixedbytherulesisagroundfordis
missal(Riverav.CA,GRNo.141863,405SCR
A63).
Judgments and Final Orders Subject To
Appeal
SubjectofAppeal(AsamendedbyA.M.No.
07-7-12-SCDecember4,2007; Sec.1)
Anappealmaybetakenfromajudgmentorfin
alorderthatcompletelydisposesofthecase,o
rof
aparticularmatterthereinwhendeclaredbyt
heseRulestobeappealable.
MATTERS NOT APPEALABLE
General
Onlyafinaldecisionisappealable.
Judgment Rule)

Rule:
(Final

Exception:
Interlocutoryordersarenotappealable.
Ifappealsareallowedfrominterlocutoryorder
s,itwillresultinaverylengthytrialproceeding
sandexcessiveunwantedappellateproceedi
ngs.
REMEDY AGAINST JUDGMENTS AND
ORDERS
WHICH
ARE
NOT
APPEALABLE

A party may file a Special Civil Action for


Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or Mandamus if there is no
performance of duty
MODES OF APPEAL
1. Ordinary Appeal The appeal to the CA
in cases decided by the RTC in the
exercise of its original jurisdiction shall be
taken by filing a notice of appeal with the
court which rendered the judgment or
final order appealed from and serving a
copy thereof upon the adverse party.
2. Petition for Review The appeal to the
CA in cases decided by the RTC in the
exercise of its appellate jurisdiction shall
be by petition for review in accordance
with Rule 42.
3. Appeal by Certiorari - cases where only
questions of law are raised or involved,
the appeal shall be to the SC by petition
for review on certiorari in accordance with
Rule 45 (Rule 41, Sec. 2).
ORDINARY
APPEAL

PETITION
FOR
REVIEW

PETITION FOR
REVIEW ON
CERTIORARI

Jurisdiction of the Lower Court


Decided by Decided by Decided
by
the RTC in the RTC in RTC, CA, CTA
its Original its
and
jurisdiction Appellate
Sandiganbayan.
.
jurisdiction
.
Appeal to SC.
Appeal
to
CA.
Petition for
Review with
CA.
How to Appeal
1. Notice of 1. A verified 1. A verified
Appeal
or Petition for Petition
for
Record on Review with Review
on
Appeal with CA
Certiorari with

Court
Origin.

of

2. Notice to
Adverse
party.

SC
2.
Pay
docket and
lawful fees,
and 500 as
deposit for
costs with
CA.

2. Pay docket
and lawful fees,
and
500
as
deposit
for
costs

3. Submit proof
3. Furnish of service of
RTC
and copy to lower
Adverse
court
and
party
a adverse party.
copy.
When to Appeal
1. Notice of Within 15 Within 15 days
Appeal
- days from:
from:
within
15
days from a. Notice of a.
Notice
of
notice
of the
judgment
or
judgment
decision to order
be reviewed
2. Records
b. Denial of MR
on Appeal b. Denial of or New trial.
within
30 the MR or
days.
New Trial.

Issues to Be Raised On Appeal


General Rule: Only questions of law or
fact that has been raised in the lower
court and must be within the issues
framed by the parties can be raised on
appeal.
Exceptions:
1. Those assigned as errors
2. Those closely related to or dependent
on an assigned error
3. Those which affect subject matter
jurisdiction of the court or the validity
of the judgment
4. Plain and clerical errors (Riguera
2015).
To Whom Binding

General Rule: The reversal of a judgment


on appeal is binding only to the parties in
the appealed case and does not affect
those who are not parties to the appeal.
Exception: In cases where the rights of
the parties are interwoven and dependent
on each other and cannot be separated.
Period of Appeal
Appeals

Period of
Appeals
Within 15 days
after notice

Notice
Appeal

of

Record
Appeal

on

Within 30 days
after notice

Appeal
in
Habeas
Corpus case
Petition
for
Review to the
CTA

Within 48 hours
from notice
Within 30 days
from notice or
after lapse of
period for action
by the CIR

RULE 38
Relief From Judgments, Orders
And Other Proceedings
A petition for relief is an equitable
remedy and is allowed only in exceptional
cases from final judgments or orders
where no other remedy is available
(Regalado, 10th Ed., citing Palmores v
Jimenez, 90 Phil. 773).
It will not be entertained if the proper
remedy is appeal or certiorari (Ibid., citing
Fajardo v Bayona, 98 Phil. 659).

139

140
Kinds of Relief from Judgments,
Orders and other Proceedings
1. Relief from judgment, order or other
proceedings.
2. Relief from denial of appeal.
GROUNDS
FOR
AVAILING
THE
REMEDY
Judgment or final order entered against a
party through: (FAME)
1. Fraud,
2. Accident,
3. Mistake, or
4. Excusable negligence and no other
remedy is available.
Similar to a Motion for New Trial
Petition for Relief under Sec.1 is similar to
a motion for new trial on the ground of
FAME.
The difference being that the motion for
new trial under Rule 37 is filed before the
judgment becomes final, while a petition
for relief in this section presupposes a
final judgment or order (Riguera 2013).
Section 2: Petition for Relief from
Denial of Appeal.
Grounds:
Judgment or final order is rendered by
any court in a case, and a party thereto,
by FAME, has been prevented from taking
an appeal.
Party who has filed a timely motion for
new trial cannot file a petition for relief
after the former is denied. The two
remedies are exclusive of one another.

Section 3: Time to File


Contents and Verification.

Petition,

Formal requirements of the petition:

1. The petition must be verified.


2. It must be accompanied by a
certificate against forum shopping,
since it is an initiatory pleading
ascertaining a claim for relief.
3. It must be accompanied by
affidavits showing the fraud,
mistake or excusable negligence
relied upon, and the facts
constituting the petitioners good
and substantial cause of action or
defense, as the case may be.
Petition for relief from judgment must
be:
1. Filed within 60 days after the
petitioner learns of judgment and
2. Not more than 6 months after entry of
judgment.
The two periods for the filing of a petition
for relief are not extendible and never
interrupted (Regalado, 10th Ed., citing
Quijano v Tameta, GR No.L- 16472, 1961).
Thus, a petition for certiorari does not
suspend the periods prescribed by this
section (Ibid., citing Palomares v Jimenez,
90 Phil. 773), and neither does a motion
for reconsideration of the order subject of
the petition for relief (Ibid., citing Cruz v
Oppen, GR No.L-23861, 1968), especially
if filed in the wrong court.
These periods cannot be subject to a
condition or a contingency as they are
devised to meet a condition or a
contingency
(Ibid.,
citing Vda.
de
Salvatierra v Garlitos, 103 Phil. 157). Both
periods must be complied with (Ibid.,
citing Philippine Rabbit Bus Lines v
Arciaga, GR No.L-29701, 1987).
Notes:
1. The 6-month period is computed
from the date of entry of the order
or judgment.

2. However, as amended, the date of


the finality of the judgment or
final order is deemed to be the
date of its entry (Regalado, 10th
Ed., citing Dirige vBiranya, GR
No.L-22033, 1966).
Remedy When Petition for Relief under
Rule 38 is No Longer Available
An action to annul judgment under Rule
47 may be availed of when there is valid
ground to invoke the same (Riguera
2015).
Note: Petition for relief under Rule 38 is
not available against a judgment of the
CA. Any court in Sec. 1 only refers to
any trial courts (Riguera 2013, citing Sps.
Mesina v Meer, 2001).
Remedy When Party is Denied of
Appeal
Where a party has been prevented from
taking an appeal by reason of FAME, he
may file a verified petition for relief in
such court and in the same case praying
that the appeal be given due course.
Eample. Defendants counsel became
seriously ill, unable to file notice of appeal
on time. (Riguera 2013)
Section 4: Order to file an Answer.
The court shall issue an order, if the
petition is sufficient in form and
substance to justify relief, requiring the
adverse party to file an answer within 15
days from the receipt thereof.
Note: Failure to file an answer does not
warrant declaration of default.
Section 5: Preliminary Injunction
Pending Proceedings.
Execution
of
judgments
is
not
automatically stayed by filing a petition
for relief from judgment.

To stay execution, a writ of preliminary


injunction should be obtained in
accordance with Sec. 5, Rule 38, upon
filing of bond in favor to the adverse party.
Preliminary Injunction does not discharge
the levy made before the filing of Petition
for Relief thereafter, if the petition is
denied, the court has the power to
reinstate the writ of execution (Regalado,
10th Ed., citing Ayson v Ayson, 101 Phil.
1223 [Unrep.]).
Unless a writ of preliminary injunction
has been issued, execution of the
judgment shall proceed even if the order
denying the petition for relief is pending
on appeal. Said writ may be sought either
in the trial or appellate courts (Regalado,
10th Ed., citing Servicewide Specialists,
Inc. v Sheriff of Manila, G.R. No. 74586,
1986.)
Notes:
1. Uniform Procedure for Relief from
Judgments of MTC and RTC. After
petition is filed, the court shall
order adverse parties to answer
within 15 days from receipt. After
answer is filed or expiration of
period therefor, court shall hear
the petition.
2. If granted, judgment or final order
is set aside and the court shall
proceed as if timely motion for new
trial has been granted; if granted
against denial of appeal, court
shall give due course to appeal.

RULE 39
EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS.
EXECUTION

141

142
The remedy provided by law for the
enforcement of a judgment. It also refers
to the process of enforcing the judgment.

As to how it is enforced
1. Execution by Motion
2. Execution by Independent Action

Once a decision becomes final and


executory, the only jurisdiction left with
the court is to order its execution.

Execution with respect to appealed


cases
1. There is no need to await remand of
records
2. Execution
with
respect
to
consequential and exemplary damages
should be postponed until such time
as the merits of the case have been
finally determined in the regular
appeal, as the amounts remain
uncertain and indefinite pending
resolution.
3. Motion for execution of final and
executory judgment should be served
on adverse party and set for hearing.
4. In case of appeal, motion is filed with
court of origin supported by certified
true copies of final judgment of
appellate court.
5. Appellate court may upon motion,
order the court of origin to issue writ
of execution (SC Circular No. 24-94,
April 18, 1994).

The prevailing party is entitled to a writ of


execution and its issuance is a ministerial
duty of the court.
WRIT OF EXECUTION
A judicial writ issued to an officer
authorizing and requiring him to execute
the judgment of the court
General rule: Execution can be issued
only against a party and not against one
who did not have his day in court.
Exceptions: A writ is issued against nonparties.
1. One who is a privy to the judgment
debtor;
2. One not being originally a party to the
case submits his interest to the court
for consideration;
3. Where non-parties voluntarily signed
the
compromise
agreement
or
voluntarily appeared before the court.
4. Where third party derived his right of
possession from the defendant.
Where to file Motion for Execution
1. Trial Court while it has jurisdiction
over the case and the court is still in
possession of the records of the case
2. Appellate Court after the trial court
has already lost jurisdiction
Classes of Execution As to their nature
1. Compulsory execution Execution
as Matter of Right.
2. Discretionary Execution Execution
Pending Appeal.

FINALITY OF JUDGMENT
FOR PURPOSES
OF APPEAL

FOR PURPOSES
OF EXECUTION

A judgment which
completely
disposes of the
action
(as
distinguished from
an
interlocutory
order)

A
judgment
is
final
after
the
lapse of the period
to appeal and no
appeal has been
perfected
(Regalado).
Judgment in this
sense
is
more
precisely referred
to as final and
executory
in
order
to
avoid
confusion
with
final judgment in

FINAL
JUDGMENT
Disposes of the
action

the first sense


(Riguera 2013).
INTERLOCUTOR
Y ORDER
Something
between
the
commencement
and end of the
suit
which
declares
somepoint
or
matter but is not a
final decision of
the
whole
controversy.

CONCEPTOFEXECUTION
ISINAPPLICABLE
When
the
judgmentdoesnotorderthedoingofsomethi
ngorthepaymentofmoneybecausethereisno
thinginthejudgmenttobeenforcedorexecute
d.Insuchcases,iftheappealperiodhaslapse
d,the
judgmentbecomesfinalandunappealable,
notfinal and executory(Riguera2013)
MITTIMUS
F inal
processforcarryingintoeffectsthedecisionof
theappellatecourtaftertheentryofjudgment
andthetransmittalthereofwiththerecordsto
thecourtoforiginandispredicateduponthefi
nalityofjudgment.

PARTIALEXECUTION
Permissibleifjudgmentisdivisible.

Unless court provides otherwise:


1. Actions for (SIRA) support, injunction,
receivership, accounting, and other
judgments declared to be immediately
final and executor
2. Deficiency Judgment
3. Ejectment (governed by Rules on
Summary Procedure)
4. Expropriation
5. Cases
falling
under
Rules
of
Procedure on Corporate Rehabilitation
6. Cases
falling
under
Rules
of
Procedure
on
Intra-Corporate
Controversies
7. Contempt (indirect)
8. Cases
falling
under
Rules
of
Procedure for Environmental Cases
9. Those governed by Rules on Summary
Procedure on appeal (Sec. 21, RSP;
decisions of RTC on appeal shall be
immediately final and executory)
(Riguera, 2015).
Period for Execution
1. A final and executory judgment or
final order may be executed on motion
within 5 years from entry.
2. It may be revived and enforced by way
of independent action for revival of
judgment -after the lapse of 5 years
but before 10 years from its entry,
a. Revived judgment may be enforced
by motion within 5 years from
entry and thereafter
b. By action before barred by statute
of limitations file motion within
10 years from the finality of the
revived judgment.
JUDGMENTS

Example:Executionofthejudgmentorderin
greinstatementwhilemotionforreconsidera
tionontheawardofdamagesispending.

IMMEDIATELY EXECUTORY, NOT STAYED


BY APPEAL

Section 4. Judgments immediately


executory and shall not be stayed on
appeal.

May be appealed, but the appeal does not


stay the execution of the judgment or final
order

IMMED

May not b

143

144

JUDGMENTS
IMMEDIATELY
EXECUTORY
Judgments or final orders from the
following are immediately final and
executory and may no longer be appealed:
1. Summary Judicial Proceedings under
the Family Code (Art. 247, FC)
2. Rules of Procedure for Small Claims
Cases (Sec. 23, A.M. No. 08-8-7-SC,1
October 2008.)
3. Contempt (direct)
4. Compromise
judgments
(Riguera,
2015).
ISSUANCE OF EXECUTION
Execution As A Matter Of Right
The rule on when judgments or orders
may be executed as a matter of right. This
happens when the judgment becomes
executory. It becomes mandatory or
ministerial duty of the court to issue a
writ of execution to enforce the judgment
(Regalado, 10th Ed., citing Far Eastern
Surety v Vda. de Hernandez, GR No.L30359, Oct. 16, 1975).
Execution shall issue as a matter of
right:
1. On motion, upon judgment or order
that disposes of the action or
2. Proceeding upon the expiration of the
period to appeal therefrom, if no
appeal has been duly perfected;
3. If appeal has been duly perfected and
finally resolved, the execution may be
applied in the court of origin, on
motion of the judgment oblige,
submitting:
a. Certified true copies of the
judgment/s or final order/s
sought to be enforced and of the
entry, with
b. Notice to the adverse party.

4. The appellate court may, on motion in


the same case when the interest of
justice so requires, direct the court of
origin to issue the write of execution.
AUTHORITY OF THE COURT TO
SUSPEND EXECUTION OF A FINAL
JUDGMENT
A stay of execution may be issued for good
and valid reasons:
1. When
subsequent
circumstances
transpired which render execution
unjust or impossible as a supervening
cause;
2. On equitable grounds as when there
has been a change in the situation of
the parties;
3. In cases of special and exceptional
nature, where it becomes imperative
in the higher interest of justice.
General Rule: Where the judgment or
order has become executory, the court
cannot refuse to issue a writ of execution.
Exceptions:
1. When the subsequent facts and
circumstances transpire which render
such execution unjust or impossible;
2. On equitable grounds, as when there
has been a change in the situation of
the parties which makes the execution
inequitable (Albar v Carandang, GR
No.L-18003, 1962);
3. Where the judgment has been novated
by
the
parties
(Dormitorio
v
Fernandez, et al., GR No.L- 25889,
1976);
4. When a petition for relief or an action
to enjoin the judgment is filed and a
preliminary injunction is prayed for
and granted. Refer to Rule 38, Sec. 5;
5. When the judgment has become
dormant, the 5-year period under Sec.
6 of this Rule having expired without
the judgment having been revived

(Cunanan v CA, et al., GR No.L-25511,


1968); or
6. Where the judgment turns out to be
incomplete (Del Rosario v Villegas, 49
Phil. 634) or is conditional (Cu
Unjieng, etc. v Mabalacat Sugar Co.,
70 Phil. 380) since, as a matter of law,
such judgment cannot become final
(Regalado).
MANDAMUS
The proper remedy when a motion for
execution (as a matter of right) is denied.
However, if the appellate court reversed
the decision of the lower and the latter
denies the motion for execution for the
same, the judgment obligee may file with
the appellate court a motion to direct the
lower court to issue the writ of execution.
Mandamus is not proper since there is a
plain, adequate, and speedy remedy
under Sec. 1 Rule 39 (Riguera 2013, citing
Jose Feria, 1997 Rules of Civil Procedure
115 [1997]).
A Hearing Supplementary to Execution
is Not Necessary
Once a decision has become final and
executory, the only jurisdiction of the
court is to order its execution.
To allow supplemental hearing would be
to amend or alter a final and executory
judgment (Riguera 2013, citing Baclayon v
CA).
Cases Where Execution May be Issued
even if Judgment is NOT Final
1. Support pendente lite;
2. Ejectment cases;
3. Decision of the RTC in appealed
civil cases under the Rev. Rules on
Summary Procedure;
4. Decision of the Labor Arbiter
reinstating a dismissed employee.
Sec.1, Rule 39
FINAL AND

Sec.2, Rule 39
DISCRETIONAR

EXECUTORY
This is the rule
when judgment
or orders may be
executed as a
matter of right,
that
is,
it
becomes
the
mandatory
or
ministerial duty
of the court to
issue a writ of
execution.

Y EXECUTION
Execution
may
issue
in
the
discretion of the
court even before
the lapse of the
period, that is,
even before the
judgment
or
order has become
executory
(Regalado).

This
happens
when
the
judgment
becomes
executor.
Section 2: Discretionary Execution
It is the execution of a judgment or final
order by the court in its discretion during
the pendency of an appeal.
Requisites:
1. There must be a motion filed by the
prevailing party with a notice to the
adverse party;
2. There must be a hearing of the motion
for discretionary execution;
3. There must be good reasons to justify
the discretionary execution; and
4. The good reasons must be stated in a
special order.
5.
Discretionary execution may be issued
by:
1. Trial court even after the perfection
of the appeal for so long as the motion
for execution was filed while the TC
has jurisdiction over the case and is
in possession of the records, upon
motion of the prevailing party with
notice to the adverse party
2. Appellate court
after the TC has
lost jurisdiction

145

146

By notice of appeal, the court loses


jurisdiction over the case:
1. Upon perfection of the appeals filed in
due time and
2. Expiration of the time to appeal of the
other parties.
Section 3. Stay of Discretionary
Execution.
1. Upon approval by proper court;
2. Filing of supersedeas bond by the
party against whom it is directed;
3. Condition upon the performance of
the judgment or order allowed to be
executed in case it shall be finally
sustained.
When the judgment executed pending
appeal and subsequently overturned, the
party who moved for immediate execution
should, upon return of the case to the
trial court, be required to make specific
restitution.
EXECUTION OF JUDGMENT
Section 6: Execution by Motion or By
Independent Action.
1. Execution by motion The prevailing
party shall ask the court to issue a
writ of execution by simply filing a
motion in the same case within 5
years from the date of its entry.
After the lapse of such time, and
before it is barred by the statute of
limitations, a judgment may be
enforced by action.
2. Execution by independent action
The prevailing party should file an
action for revival of judgment after 5
years but within 10 years from the
date of its entry. (Art. 1144[3], Civil
Code).

When the judgment has been revived,


the prevailing party can then enforce
it by motion within 5 years from the
date of entry of the revived judgment.
Remedy: File another civil action for the
revival of judgment (Execution by
Independent Action) which must be filed
before it is barred by the Statute of
limitations.
Venue of
Judgment

Action

for

Revival

of

Qualify whether the action for revival of


judgment is a real or personal action.
1. If the action affects title to or
possession of real property or any
interest therein, the action for revival
must be filed with the court having
jurisdiction over the place where the
real property or any portion thereof is
situated.
2. If the action for revival of judgment is
a personal action, the venue lies with
the residence of either the plaintiff or
defendant, at the option of the
plaintiff (Riguera 2013, citing Infante v
Aran Builders, Inc., G.R. No.156596,
2007).
Notes:
1. Not
Applicable
in
Land
Registration and Cadastral Cases.
2. The 5 to 10 periods do not apply
to special proceedings, such as
land registration and cadastral
cases where the right to apply for
a
writ
of
possession
is
imprescriptible (Riguera 2013,
citing Rodil v Benedicto, 95 SCRA
137 [1980]). This is so because a
party in a civil action must
promptly enforce a judgment that
is secured against the adverse
party, and his failure to act to

enforce the same makes it


unenforceable.
3. In
special
proceedings,
the
purpose is to establish a status,
right or a particular fact;
4. In land registration proceedings,
the ownership by a person of a
parcel of land is sought to be
established (Ibid., citing Ting v
Heirs of Lirio, G.R. No. 168913,
2007).
Section 7: Execution in case of Death
of Party.
Effect of Death of Party:
1. Death
of
judgment
obligee

application of his executor or


administrator or successor-in- interest
2. Death of judgment obligor Against
his executor, etc. if the judgment be
for recovery of real or personal
property or the enforcement of a lien
thereon.
a. If death after execution is actually
levied upon his property, it may be
sold for satisfaction of the
obligation.
b. If the judgment obligor dies after
the
entry
but
before
levy,
execution will issue if it were for
the recovery of real or personal
property.
c. If judgment is for a sum of money,
and the judgment obligor dies
before levy, such judgment cannot
be enforced by writ of execution
but must be filed as a claim
against his estate.
Section 8: Issuance and Contents of a
Writ of Execution
1. Shall issue in the name of the
Republic of the Philippines from
court which granted the motion;
2. State the name of the court, case
number and title, and the

dispositive portion of the judgment


order;
3. Require the sheriff or other proper
officer to whom it is directed to
enforce the writ according to its
terms.
Manner of executing writ:
1. If judgment is against property of the
judgment obligor Out of real or
personal property with interest.
2. If against his real or personal property
in the hands of the personal
representatives,
heirs,
devisees,
legatees, tenants, or trustees of the
judgment obligor Out of that
property, with interest.
3. If for sale of real or personal property
To sell property, describing it and
apply the proceeds in conformity with
judgment.
4. If for delivery of possession of property
Deliver possession of the same to
the party entitled to it, describing it,
and to satisfy any costs, damages,
rents, or profits covered by the
judgment out of the personal property
of the person against whom it was
rendered, and out of real property if
sufficient personal property cannot be
found.
5. In all cases writ of execution shall
specifically state the amount of the
interest, costs, damages, rents, or
profits due as of date of issuance of
writ, aside from principal obligation.
Note: Judgment obligor is given
option to choose which property may
be levied on sufficient to satisfy the
judgment.
GROUNDS TO QUASH A WRIT
EXECUTION:
1. Improperly issued
2. Defective in substance
3. Issued against the wrong party

OF

147

148
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties
renders execution inequitable
7. Controversy
was
never
validly
submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against
property exempt from execution
10. Ambiguity in the terms of the
judgment
APPEAL - the proper remedy from an
order denying the issuance of a writ of
execution.
However, an order granting the issuance
of a writ of execution of a final judgment
is not appealable (Regalado, 10th Ed.,
citing several cases).
Section 9: Execution of Judgments for
Money
How is Execution
Money Enforced.

of

Judgment

of

1. Immediate payment on demand


a. The sheriff must demand payment
from the obligor of the full amount
stated in the writ of execution and
other lawful fees.
b. The judgment obligor can pay in:
i. cash,
ii. certified bank check payable to
the judgment obligee or
iii. any other form of payment
acceptable to the latter.
2. The payment shall be made directly to
the judgment obligee or authorized
representative.
If the obligee or representative is not
present to receive payment, the judgment
obligor shall deliver it to the executing
sheriff.

The lawful fees shall be paid to the


executing sheriff who shall turn over the
said amount within the same day to the
clerk of court that issued the writ.
Note: There is no valid payment when a
check is payable to the sheriff and not to
the judgment obligee. The obligation to
pay upon a judgment obligor still subsists
and a writ of execution may still be
enforced against him.
Satisfaction by Levy
LEVY
An act by which an officer sets part or
appropriates a part or whole of the
property of the judgment debtor for
purposes of the execution sale.
a. If payment cannot be made under
No. 1, the officer shall levy upon
the properties of the judgment
obligor of every kind and nature
which may be disposed of for value
and not otherwise exempt from
execution;
b. The obligor shall choose which
property may be levied upon. If the
obligor does not choose which
property or part thereof may be
levied upon, the officer shall first
levy on the personal properties,
then on the real properties if the
former are insufficient;
c. Real property, stocks, shares,
debts, credits and other personal
property, or any interest in either
real or personal property, may be
levied upon in like manner.
Garnishment of debts and credits
a. The officer may levy on debts due
the judgment obligor and other
credits, royalties, commissions
and other personal property not
capable of manual delivery in the
possession or control of third
parties.

b. Levy shall be made by serving


notice upon the person owing
such debts or having possession
or control of such credits to which
the judgment obligor is entitled.
c. Garnishee shall make a written
report to the court within 5 days
from
service
of
notice
of
garnishment stating whether or
not the judgment obligor has
sufficient funds to satisfy the
amount of the judgment.
d. The garnished amount shall be
delivered directly to the judgment
obligee within 10 working days
from service of notice on said
garnishee requiring such delivery,
except that the lawful fees shall be
paid directly to the court.
e. If there are several garnishees, the
judgment obligor shall indicate the
garnishee/s who shall be required
to deliver the amount due,
otherwise, the choice shall be
made by the judgment obligee.
PERSONS
DISQUALIFIED
FROM
PARTICIPATING IN THE EXECUTION
SALE:
1. Officer conducting the execution
sale or his deputy;
2. Guardian with respect to the
property under his guardianship;
3. Agents, the property entrusted to
them, unless with principals
consent;
4. Executors and administrators, the
property of the estate under
administration;
5. Public officers and employees, the
property of the State or any
subdivision thereof, or any GOCC,
the administration of which has
been entrusted to them;
6. Justices,
judges,
prosecuting
attorneys, clerks of courts, and
other officers and employees
connected with the administration

of justice, the property and rights


in litigation or levied upon an
execution before the court within
whose jurisdiction or territory
they exercise their respective
functions;
7. Lawyers, the property and rights
which may be the subject of
litigation in which they take part
by virtue of their profession;
8. Others specifically disqualified by
law.
ExAMPLE: Seller of goods who exercise
right of resale of goods
Section 10: Execution of Judgments
for Special Acts
Scope:
1. Conveyance, delivery of deeds;
2. Sale of personal or real property;
3. Delivery or Restitution of real
property;
4. Removal of improvements on
property subject of execution;
5. Delivery of personal property.

Judgment for Conveyance, Delivery or


Other Specific Acts; How Enforced
The court may, at the cost of the
defendant, direct the act to be done by
some other person appointed by the court
and the act when so done shall have the
effect as if done by the party. (Riguera
2013)
REMOVAL OF AN IMPROVEMENT
Requisites before demolition order is
issued:
1. Motion;
2. Notice to the adverse party;
3. Hearing;
4. Special order;

149

150
5. Reasonable
time
improvements

to

remove

Execution of Special Judgments


Special Judgment - one which requires
the performance of any act other than the
payment of money or the sale or delivery
of real or personal property under Secs. 9
& 10, which a party must personally do
because his personal qualifications and
circumstances have been taken into
consideration (Riguera 2013, citing Caluag
v Pecson, 82 Phil.8).
Note: the judgment should not require
the performance of a service otherwise
that would run afoul of the Constitutional
proscription
against
involuntary
servitude. (Riguera 2013).
How Enforced
A certified copy of the judgment shall be
attached to the writ of execution and
served by the officer upon the party
against whom the same is rendered or
upon any other persons required thereby,
or by law, to obey the same, and such
party or person may be punished for
contempt if he disobeys the same (Riguera
2013).
Writ of Possession employed to enforce
a judgment to recover the possession of
land. It commands the sheriff to enter the
land and give possession of it to the
person entitled under judgment.

Section 12: Effect of Levy on Third


Persons.
The levy on execution shall create a lien
in favor of the judgment obligee over the
right, title, and interest of the judgment
obligor in such property at the time of the
levy, subject to liens and encumbrances
then existing.

With respect to land, the writ of execution


shall be registered with the Registry of
Deeds in order to affect third persons
(Riguera 2013, see Secs. 69, 74, and
113(d) of P.D. No. 1529).
Section 14: Return of Writ of
Execution.
Writ
of
execution
is
returnable to the court after a judgment
is satisfied in part or in full.
In case the judgment cannot be satisfied
in full the sheriff shall report to the court
within 30 days after receipt and every 30
days until judgment is satisfied in full.
A writ of execution is valid for 5 years
from the date of entry of judgment.
Notice of Sale of Property on Execution
Property
Notice
Perishable
Posting written notice of
Property time and place of sale in 3
public
places,
in
conspicuous areas of the
municipal or city hall, post
office and public market
where the sale is to take
place.
Other
Personal
Property

Real
Property

Posting similar notice in 3


public places mentioned
above.
Posting for 20 days in 3
public places mentioned,
describing the property
and where the property to
be sold; if assessed value
exceeds
50,000,
by
publishing copy of notice
once a week for 2
consecutive weeks in a
newspaper
of
general
circulation in the province
or city.

All Cases

Written notice of sale


shall be given to the
judgment obligor, at least
3 days before the sale,
except in cases proved
under par.A.

Section 18: No sale if Judgment and


Cost Paid.
The debtor may stop auction sale if he pay
the amount required by the execution and
the costs.
Section 19: How Property Sold on
Execution; Who may Direct Manner
and Order of Sale.
1. Sales of property under execution
must be made at public auction,
to the highest bidder, to start at
the exact time fixed in the notice.
2. An excess property or proceeds of
the sale shall be delivered to the
judgment obligor.
3. The judgment obligor, if present at
the sale, may direct the order in
which property, real or personal,
shall be sold, when such property
consists of several known lots or
parcels which can be sold to
advantage separately.
4. The officer conducting the sale or
his deputes cannot purchase nor
be interested directly or indirectly
in any purchase at such sale.
5. The officer shall issue a certificate
of sale to the purchaser pursuant
to Sec. 24 to 26 of Rule 39.
Section 20: Refusal of Purchaser to
Pay.
Officer may again sell the property to the
highest bidder and shall not be
responsible for any loss;
But the court may order the refusing
purchaser to pay into the court the

amount of loss, with costs, and may


punish him for contempt if he disobeys
the order.

Section 21:
Purchaser.

Judgment

Obligee

as

General rule: If the oblige is the highest


bidder he need not pay the amount bid.
(Apply the law on compensation)
Exceptions:
1. When his bid is higher than the
judgment, he has to pay the cash
for the excess.
2. When the property is a subject of
a third-party claim.
RULES ON CERTIFICATE OF SALE
Section 23: Personal property capable
of manual delivery.
The officer making the sale must deliver
the property, and if desired, execute and
deliver to him a certificate of sale. The
certificate conveys to the purchaser all
the rights which the judgment obligor had
in such property as of the date of the levy
on execution or preliminary attachment.
Section 24: Personal Property NOT
Capable of Manual Delivery.
Officer making the sale must execute and
deliver to the purchaser a certificate of
sale.
Section 25: Real Property.
The officer must give to the purchaser a
certificate of sale. The certificate must be
registered in the registry of deeds of the
place where the property is located. This
is
necessary
since
the
one-year
redemption period commences from the
registration of the certificate of sale.

151

152

Section 26: Property Claimed by a


Third Person.
The certificate of sale to be issued by the
sheriff shall make express mention of the
existence of the third-party claim.
Sale of Personal
Property
Rule 39, sec.
23
No
right
of
redemption
Title
is
transferred after
payment
of
purchase price
and
delivery
upon purchaser

Sale of Real
Property
Rule 39, Sec. 25
1 year
period

redemption

Title is transferred
after the expiration of
the right to redeem

Remedies againstExecutory Judgments


orOrders:
1. Petitionforrelief
2. Directattack
3. Collateralattackjudgmentisnullonitsface
orcourthadnojurisdiction
Whencourt
mayorderexecutioneven
beforeanexecutoryjudgmentandpendin
ganappeal:
1. Lapse oftime wouldmake the ultimate
judgmentineffective;
2. Appealisclearlydilatory;
3. Judgment
isforsupportandthebeneficiaryisinneed
thereof;
4. Articlessubjectofthecaseareperishable;
5. Defendantsareexhaustingtheirincome
andhavenootherpropertyasidefromthe
proceedsfromthesubdivisionoflotssubj
ectoftheaction;
6. Movants were in extreme need of
the
premisessubjectofthesuitandthebondt
oanswerfordamagesincaseofreversalon

appeal(supersedeasbond)waspostedby
them;
7. Judgmentdebtorisinimminentdangero
finsolvency;
8. Prevailing
partyisofadvancedageandina
precariousstateofhealthandtherightint
hejudgmentisnontransmissiblebeingforsupport;
9. Prevailingparty postssufficient bond
to
answerfordamagesincaseofreversalofju
dgment
Note:
Butinmostcases,themerefilingofab
ondisnotsufficient
justificationfordiscretionaryexecuti
on.
PROPERTIES
EXEMPT
FROM
EXECUTION
1. Family home, homestead in which he
resides, and land necessarily used in
connection therewith;
2. Lettered gravestones;
3. (Insurance proceeds) Money, benefits,
annuities accruing or in any manner
growing out of any life insurance;
4. Provisions for individual or family use
sufficient for 4 months;
5. Clothing and other articles necessary
for ordinary personal use, excluding
jewelry;
6. Household furniture and utensils
necessary for housekeeping NOT
exceeding P100,000;
7. Implements and ordinary tools used
in trade, employment, or livelihood;
8. Earnings, salaries, or wages for
personal services within the 4 months
preceding
the
levy
which
are
necessary for the support of the
family;
9. Fishing boat (1) and accessories NOT
more than P100,000 owned by a
fisherman and by which he earns his
living;

10. Right to receive legal Support or any


pension
or
gratuity
from
the
government;
11. Properties especially exempted by Law.
12. Beasts of burden, including 3 horses,
cows, or carabaos, used in his
ordinary occupation;
13. Professional libraries and equipment
of judges, lawyers, physicians, etc.
NOT exceeding P300,000. (Riguera
2015)
Exemption does not apply if execution is
upon a judgment for its purchase price or
for foreclosure of mortgage. Right of
Exemption is a personal right granted to
the judgment creditor. Thus, the sheriff
may not claim it.
Right of Exemption on Family Home
It is not sufficient that the person
claiming exemption merely alleges that
such property is a family home. This
claim for exemption must be set and
proved to the sheriff. Failure to do so
would estop the party from later claiming
the exemption (Riguera 2013, citing
Spouses Versola v CA, 2006).
Income Exempted Does Not Apply to
Juridical Persons
Rule 39, Sec. 13 and Sec. 1 Rule IV NLRC
Manual on Execution of Judgments are
confined only to natural persons (Riguera
2013, citing DArmoured Security and Inv.
Agency v 2005).
Proceedings Where Property Is Claimed
By Third Persons
In Relation to Third-Party
Attachment and Replevin

Claim

in

Third-party claim (TERCERIA) a remedy


afforded to a third-party with a claim to
property:
1. Levied,

2. Attached, or
3. Seized by virtue of a court order,
Wherein the third-party makes an
affidavit of his title or right of possession
to the property and serves the affidavit
upon:
1. The court officer and
2. The judgment obligee.
Note: It is available to a third-party in
cases of levy on execution, attachment
and replevin.
Procedure:
1. The third-party shall make an
affidavit showing his title to or right of
possession over the property.
2. He shall serve the affidavit upon the
levying officer, files a bond approved
by the court to indemnify third-party
claimant, not the sheriff or officer.
3. Amount of bond should be not less
than value of property levied on.
Sheriff shall NOT be liable for
damages if bond is filed.
4. A claim for damages for the taking or
keeping of the property may be
enforced by the third-party against
the bond provided he files an action
within 120 days from the filing of the
bond. (Riguera, 2013)
Remedies Available to third-party
1. Terceria or Third-party claim under
Rule 39, Sec. 16;
2. Reivindicatory action to recover
possession of the property from the
officer or the purchaser at the
execution sale. This is filed separately
in cases of levy on execution;
3. Indemnity bond, if one is filed, may be
assailed in an action for damages;
4. Motion or application with the court
for the release of the property based
on continuing jurisdiction of a court
with respect to matters concerning

153

154
the execution or enforcement of its
judgment
(Riguera, 2013)
Note: (TRIMI). In third-party claims
involving attachment or replevin, the
third-party claimant may vindicate his
claim to the property by Intervention
since the action is still pending.
Rules on Redemption
1. There is a right of redemption
in real property but such right
is not afforded in case of
personal property.
2. In case of execution of levy on
growing crops, defendant has
no right to redeem. Such
growing crops are classified as
real property under Article
415(2) of the Civil Code, the
right to the growing crops
mobilizes
the
same
by
anticipation (Riguera 2013,
citing Sibal v Valdez, 50 Phil.
512).
3. Rents, Earnings and Income of
Property Pending Redemption.
Refer to Rule 39, Sec. 32
Purchaser or redemptioner
shall not be entitled to
receive rents and income of
property sold inasmuch as
these
belong
to
the
judgment obligor until the
expiration of the period of
redemption.
Section 27: Who may Redeem Real
Property Sold
1. Judgment obligor or his successor
in interest in the whole or any part
of the property;
2. Redemptioner or Creditor having
lien by virtue of an attachment,
judgment, or mortgage on the
property sold subsequent to the lien
under which the property was sold.

PROCEDURE:
1. The
judgment
obligor,
whether
exercising a first or subsequent
registration, has one year from the
date of the registration of the
certificate of sale to redeem property
sold by paying the purchaser the
amount of his purchase, with 1% per
month interest plus any assessments
or taxes which he may have paid
thereon after purchase with interest
on said amount at 1% per month.
Once he redeems, there shall be no
further redemption. In no case may
the judgment obligor redeem beyond
the one-year period.
2. The redemptioner exercising first
redemption has the same one-year
period within which to redeem.
3. The
redemptioner
exercising
a
subsequent registration has a period
of 60 days after the last redemption
within
which
to
redeem.
The
redemptioner
may
redeem
even
beyond the one-year period provided it
is within 60 days after the last
redemption.
Section
30:
Proof
Required
of
Redemptioner
1. Copy of the judgment or final order
under which he claims the right to
redeem.
2. If he redeems upon a mortgage or
other lien, a memorandum of record
3. Original or certified true copy of any
assignment
4. Affidavit executed by him or his agent.
Section 33: Deed and Possession to be
given at expiration of Redemption
Period; By Whom executed or given
1. Two document which the sheriff
executes in case of Real Property:
2. Certificate of Sale executed after
auction sale.

3. Deed of conveyance executed after 1


year if there is no redemption.

any property of the judgment obligor in


his possession.

Section 34: Recovery of Price if sale is


not effective; Revival of Judgment
1. Recover the money from oblige
2. Have the judgment revived.

Such examination is now required to be


conducted by the court which issued the
writ of execution, or by a commissioner
appointed by it, within the province or
city where such debtor resides or is found
(Regalado, 10th Ed.).

REMEDIES IN AID OF EXECUTION:


1. Examination of judgment obligor
when judgment unsatisfied.
2. Examination of obligor of judgment
obligor. Enforcement of attendance
and conduct of examination.
3. Order of application of property and
income to satisfaction of judgment.
4. Appointment of receiver.
5. Sale of ascertainable interest of
judgment obligor in real estate.
6. Proceedings
when
indebtedness
denied or another person claims the
property.
Satisfaction of Judgment - Compliance
with or fulfillment of the mandate of
judgment.
Section 36: Examination of Judgment
Obligor when Judgment is Unsatisfies
f
theexecutionisreturnedunsatisfied,thejud
gmentcreditormaycauseexaminationofthej
udgmentdebtorastohispropertyandincome
.
However,nojudgmentobligorshallbesorequ
iredtoappearbeforeacourtorcommissioner
outsidetheprovinceorcityinwhichsuchoblig
orresidesorisfound.
Section 37: Examination of Obligor of
Judgment Obligor.
In case Judgment is not fully satisfied,
the judgment creditor may cause the
examination of the debtor of the judgment
obligor as to any debt owed by him or to

If after the examination, the court finds


property of the judgment debtor, either in
his own hands or that of any person, the
court may order the property applied to
the satisfaction of the judgment.
Section 47: Effect of Judgment or
Final Orders.
Res Judicata(A thing decided) - once a
matter has been decided with finality by a
court, the matter is conclusive as between
the parties to the case and can no longer
be relitigated.
Requisites of Bar by Prior Judgment:
1. Identify subject matter, parties,
and causes of action between the
prior action and the subsequent
action;
2. Prior judgment must be rendered
by a court having Jurisdiction over
the subject matter and the parties;
3. Prior judgment or order must be
on the Merits; a dismissal order
with prejudice or has the effect of
adjudication on the merits, even if
not on the merits, constitutes res
judicata.
4. Prior judgment must be Final and
executor or final and unappealable
(Riguera 2013).
RULES ON BAR BY PRIOR JUDGMENT
1. In case of judgment or final order
against:

155

156
a. A specific thing;
b. Probate of a will, or the
administration of estate of a
deceased person, or;
c. With respect to the personal,
political or legal condition or
status of a particular person or
his relationship to another, it is
conclusive upon (TWAC)
i.
Title to the thing;
ii.
Will or administration, or;
iii.
Condition,
status,
or
relationship of the person
Note: This is the Rule on res judicata in
judgments in rem.(Regalado, 10th Ed.)
2. In other cases/matters directly
adjudged, or matters relating thereto
that could have been raised subsequent
to commencement of action, judgment is
conclusive between parties and their
successors in interest.
Note: This is the Rule on res judicata in
judgments in personam.(Regalado, 10th
Ed.)
Requisites
of
Conclusiveness
of
Judgment
Same as those above, except that causes
of action are different (Riguera 2015).
Rule on Conclusiveness of Judgment
In any other litigation, only those deemed
to have been adjudged in a former
judgment or which was actually and
necessarily
included
therein
are
conclusive upon the same parties or their
successors-in-interest (Riguera 2013).
Section 48: Enforcement and Effect of
Foreign Judgments or Final Orders.
EffectofForeignJudgment:
1. Judgment
uponaspecificthing,
conclusiveuponthetitletothething;

Note: Rule on foreign judgments


in actions in rem (Regalado).
2. Ifagainstaperson,judgmentispresu
mptiveevidenceofaright
as
betweenthepartiesandtheirsuccess
orsininterest;
Note: Rule on foreign judgments
in actions in personam (Regalado).
Thejudgmentofaforeigntribunalcannotbee
nforcedbyexecutionin
thePhilippines.Suchjudgmentonlycreatesa
rightofactionanditsnonsatisfaction,acauseofaction,anditisnecess
arythatasuitbebroughtuponsaidforeignjud
gmentinourlocalcourts.
Note:Foreignjudgments
contemplated
under Sec.48:
1. Maybeconclusive,ifinrem,or
2. Presumptive,ifinpersonam,
Itisnecessarythatin
eithercaseacivilactionshouldbefiledin
ourcourts,toallowthelosingpartyanopp
ortunitytochallengethejudgmentonthe
groundsprovided
anddefend
itselfagainsttheenforcementofthatdeci
sioninthelocalforum(RegaladocitingMij
aresvRanada,GRNo.139325,2005).
WhenForeignJudgmentmayberepelled:
1. Evidenceofwantofjurisdiction
2. Wantofnoticetoparty
3. Collusion
4. Fraud
5. Clearmistakeoflaw.

RULE 40
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC
This rule governs appeal from judgment
or final order of an MTC to RTC exercising

jurisdiction over the area to which the


former pertains.
Where to Appeal:
An appeal from a judgment or order of a
Municipal Trial Court may be taken to the
Regional Trial Court exercising
jurisdiction over the area to which the
former pertains.
Title of the case:
As it was in the court of origin. But the
party appealing the case shall be further
referred to as appellant and the adverse
party as the appellee.

Section 2: When to Appeal


An appeal may be taken within 15 days
after notice to the appellant of the
judgment or final order appealed from.
Where record on appeal is required, the
appellant shall file a notice of appeal and
a record on appeal within 30 days after
notice of the judgment.
The period to appeal shall be interrupted
by a timely motion for new trial or
reconsideration.
No motion for extension of time to file a
motion for new trial or reconsideration
shall be allowed.
NOTE: To standardize the appeal periods
provided in the Rules and to afford
litigants fair opportunity to appeal their
cases, the Court deems it practical to
allow a fresh period of 15 days within
which to file the notice of appeal in the
Regional Trial Court, counted from receipt
of the order dismissing a motion for a new
trial or motion for reconsideration.
Henceforth, this fresh period rule
shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts
to Regional Trial Courts. (Neypes vs.

Court of Appeals, 469 SCRA 633, 2005)


Section 3: How to Appeal.
1. File a notice of appeal with the
trial court.
2. Notice of appeal must indicate:
a. Parties
b. judgment or final order
appealed from
c. material
dates
showing
timeliness of appeal
3. A copy served on the adverse
party.
4. Payment in full of docket fees and
other lawful fees
NOTE: A record on appeal shall be
required only in a) special proceedings
and b) in other cases of multiple or
separate appeals. The forms and contents
of the record on appeal shall be as
provided in Sec. 6, Rule 41.
Material Dates Showing the Timeliness
of the Appeal
The material dates showing the timeliness
of an appeal includes:
1. The day the notice of judgment or final
order was received
2. The day when a motion for
reconsideration or new trial, if any, was
filed
3. The day when notice of the denial of
the motion for reconsideration or new
trial was received (Riguera 2015)
APPEAL BONDS
Appeal bonds under Sec. 3 Rule 40 and
Sec. 5 Rule 41 was removed by the
Interim Rules. Under the 1997 Rules of
Civil Procedure, appeal bonds are no
longer provided therein.
An exception is found under Sec. 46 of
the Alternative Dispute Resolution Act
(RA 9285) which provides that the losing
party who appeals to the CA from a
judgment of the court confirming the

157

158
arbitral award shall be required by the
appellate court to post counterbond
executed in favor of the prevailing party
equal to the amount of the award.
(Riguera 2013)
Section 4: Perfection of Appeal.
Governed by the provisions of Sec. 9, Rule
41.
Section 5: Appellate Court Docket and
other Lawful Fees
Within the period for taking an appeal,
the appellant shall pay to the clerk of
court which rendered judgment docket
and other lawful fees otherwise it is a
ground for dismissal.
Section 6: Duty of the Clerk of Court
The clerk of court shall within 15 days
from perfection of appeal:
1. Transmit to the RTC the original record
or the record on appeal, with the
transcripts and exhibits; and
2. Certify them as complete record.

1.

2.
3.

Section 7: Procedure in RTC


Upon receipt of the complete record, the
clerk of court of the RTC shall notify the
parties of such fact;
Within 15 days from notice, the appellant
shall submit a memorandum.
Within 15 days from receipt of the
appellants memorandum. Failure of the
appellant to file memorandum shall be a
ground for dismissal.
Section 8: Appeals from Orders
dismissing the case without trial; Lack
of Jurisdiction
If the appeal is taken from an order of the
lower court dismissing the case without a
trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case
may be.

In case of affirmance and the ground is


lack of jurisdiction over the subject
matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case
on the merits as if the case was originally
filed with it.
In case of reversal, the case shall be
remanded for further proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it
has original jurisdiction thereof, but shall
decide the case in accordance with the
preceding section, without prejudice to
the admission of amended pleadings and
additional evidence in interest of justice.
Section 9: Applicability of Rule 41
The other provisions of Rule 41 shall
apply to appeals provided herein (Rule 40)
insofar as not inconsistent with or may
serve to supplement the provisions.
Direct Appeal to SC, Not Applicable
The provision allowing direct appeal to the
Supreme Court on pure question/s of law
applies only to a judgment of the RTC,
not that of the MTC. (Riano 2013, citing
Sec. 2(c) Rule 41).
Delegated Jurisdiction in Cadastral and
Land Registration Cases
Under Sec. 34 of B.P. Blg. 129 on the
delegated jurisdiction of the MTC in
cadastral and land registration cases, it is
provided that the decision of the MTC
shall be appealable in the same manner
as decisions of the RTC. (Riano 2015)

RULE 41
APPEAL FROM JUDGMENTS OR
FINAL ORDERS THE RTC

Rule 41 refers to an ordinary appeal from


the RTC to the CA in cases where the
RTC rendered a decision in the exercise of
its ORIGINAL JURISDICTION.E
RTC JURISDICTION
Q:Petitioner bank filed a complaint for
annulment
of
title,
revocation
of
certificate
and
damages
against
respondent on RTC Bulacan. On the
other hand, respondent filed a motion to
dismiss alleging that RTC of Bulacan has
no jurisdiction over the case because the
subject property have an assessed value
of less than P20,000. Petitioner insists
that the property involved has an
assessed value of more than P20k as
shown in a Tax Declaration attached in
the complaint. Does the RTC has
exclusive original jurisdiction over the
matter?
A: Yes. Under Batas Pambansa Bilang
129, as amended by Republic Act No.
7691, the RTC has exclusive original
jurisdiction over civil actions which
involve title to possession of real property,
or any interest therein, where the
assessed value of the property involved
exceeds P20k. The tax declaration
showing the assessed value of the
property is deemed a part of the
complaint and should be considered
together with it in determining that the
RTC has exclusive original jurisdiction.
(BSP v. Legaspi, Mar. 2, 2016)
Subject of Appeal (Sec.1) (As amended
by A.M. No. 07-7-12-SC December 4, 2007)
Q: What judgment or orders may be
appealed?
A: An appeal may be taken from a
judgment or final order that completely
disposes of the case, or of a particular

matter therein when declared by these


Rules to be appealable.
A court order is final in character if it
puts an end to the particular matter
resolved, leaving thereafter no substantial
proceeding to be had in connection
therewith except its execution. (Bairan vs.
Tan Siu Lay, G.R. No. L-19460, 1966)
Interlocutory Order
An order which does not dispose of the
case, but leaves something else to be done
by the trial court on the merits of the
case.
Q: What judgments or orders may not
be appealed?
A:(SIDE-CAP-SSCC)
1. An order denying a petition for
relief or any similar motion
seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing
an appeal;
4. An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or
duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third-party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and

159

160
7. An order dismissing an action
without prejudice (Sec. 1 Rule 41
as amended by SC Resolution
effective 27 December 2007).
(SSCC)
8. A judgment of direct contempt
(Sec. 2 Rule 71)
9. Compromise judgment
10. Judgments of the court in
summary judicial proceedings in
the family law (Art. 247 Family
Code)
11. Judgments in small claims cases
(Sec. 23 Rules of Procedure for
Small Claims Cases). (Riguera ,
Primer on Remedial Law, Vol.1
2015)
Perfection of Appeal. (Sec.9.)
Notice of Appeal A partys appeal is
perfected upon the filing of the notice of
appeal in due time.
The court loses jurisdiction over the case
upon:
a. Perfection of the appeal filed in
due time; and
b. Expiration of the time to appeal by
the other parties
Record on Appeal
A partys appeal is perfected upon the
approval of the record on appeal filed in
due time.
The court loses jurisdiction only over the
subject matter upon:
a. Approval of the records on appeal
filed in due time; and
b. Expiration of the time to appeal
of the other parties

Residual Jurisdiction
It is the power of the trial court after it
has lost jurisdiction but prior to the
transmittal of the original record or the
record on appeal, to: (PWICE)
a. Issue orders for the protection
and preservation of the parties'
rights which do not involve any
matter litigated by the appeal;
b. Approve compromises;
c. Permit
appeals
of
indigent
parties;
d. Order execution pending appeal
in accordance with Sec. 2 Rule
39, and;
e. Allow withdrawal of the appeal.
(Riguera 2015).
Remedy When Appeal is Not Allowed
A party may file a Special Civil Action of
Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or Mandamus if there is no
performance of duty.
Under Sec. 1 Rule 41, no appeal lies from
an order dismissing a case without
prejudice and hence a party may file an
appropriate civil action under Rule 65
(Riguera 2013, citing Casupanan v Laroya,
G.R. No. 145391, 2002).
WHERE APPEALS PERMITTED BEYOND
REGLEMENTARY PERIOD
1. Matters of life, liberty, honor or
property;
2. Counsels negligence without any
negligence on the client;
3. Existence of special or compelling
circumstances;
4. Merits of the case.
WHEN APPEAL IS A MATTER OF
RIGHT; EFFECTS
1. Ordinary appeal is a matter of right.

This means that the appellate court


should review the case, and this duty
is compellable by mandamus.
2. Appeals under Rules 42, 43, and 45
are NOT a matter of right.
3. Review is discretionary and the
appellate court may dismiss the
petition outright if it finds that the
questions raised are too unsubstantial
to require consideration (Riguera
2013).

RULE 42
PETITION FOR REVIEW FROM
THE REGIONAL TRIAL COURT
TO THE COURT OF APPEALS
Rule 42 refers to a mode of appeal from
the RTC to CA in cases where RTC
rendered a decision in the exercise of its
APPELLATE JURISDICTION.
Section 1. How Appeal Taken.
1. Filing a verified petition for review
with the CA
2. Payment of docket and other lawful
fees
3. Depositing 500.00 for costs
4. Serving the RTC and the adverse
party a copy.
WHEN TO APPEAL:
Within 15 days from notice of the decision
sought to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after
judgment.
THE CA MAY GRANT AN ADDITIONAL
PERIOD OF 15 DAYS ONLY WITHIN
WHICH TO FILE THE PETITION FOR
REVIEW:
1. Upon proper motion and
2. Payment of the full amount of the
docket and other lawful fees and the
deposit for costs

3. Before
the
expiration
reglementary period,

of

the

No further extension shall be granted


except for the most compelling reason and
in no case to exceed 15 days.
APPEAL FROM
THE RTC
Rule 41
File
notice
of
appeal with RTC

PETITION FOR
REVIEW FROM THE
RTC TO THE CA
Rule 42
File petition for review
directly with the CA

If MR is denied,
appeal within the
remaining
balance of the 15
day period.

If MR denied, Fresh
Period Rule applies.

15 day period to
appeal is NONExtendible.

15 day period to file


petition for review is
Extendible.

Section 2. Form and Contents.


1. Petition must be filed in 7 copies with
the original copy intended for CA
NOTE: This has been amended in view of
A.M. No. 11-9-4-SC, Efficient Use of
Paper Rule. In the Court of Appeals, only
one original (properly marked) and two
copies with their annexes.
2. Payment of docket and other lawful
fees
3. Deposit for costs
4. Proof of service of the petition
5. Contents of petition must specify:
a. Names
of
parties,
without
impleading the court or judges
b. Material dates
c. Errors of facts and/or law

161

162
d. Duplicate originals or certified
true and correct copies of the
judgment or final order
e. Certification
of
non-forum
shopping
Section 3. Effect of Failure to Comply
with Requirements.
It shall be a sufficient ground for the
dismissal of the petition.
Section 8: Perfection of Appeal by
Petition For Review
1. Upon timely filing
2. Payment of docket and other lawful
fees
EFFECT OF APPEAL
General Rule: The appeal shall not stay
the award, judgment, final order or
resolution sought to be reviewed.
Exception: CA shall direct otherwise
upon such terms as it may deem just.
Section 9: Petition Given Due Course.
If petition is given due course, CA may set
the case for oral argument or require
parties to submit memoranda. The case
shall be deemed submitted for a decision
after the filing of the last pleading or
memoranda.
Decisions of Special Agrarian Courts
Sec. 60 of the Comprehensive Agrarian
Reform Law of 1998 provides that an
appeal may be taken from a decision of
the Special Agrarian Courts by filing a
petition for review with the CA within 15
days from receipt of the notice of the
decision. Otherwise, the decision shall
become final.
Hence, the proper mode of appeal is by a
petition for review under Rule 42 and not
through an ordinary appeal under Rule

41(Riguera 2013, citing Land Bank v CA,


GR No. 190660, 2011).

RULE 43
APPEALS FROM QUASIJUDICIAL AGENCIES TO THE CA
Section 1: Scope.
Quasi-judicial agencies covered; appeals
from quasi-judicial bodies to the court of
appeals
1. Civil Service Commission;
2. Securities and Exchange Commission;
3. Office of the President;
4. Land Registration Authority;
5. Social Security Commission;
6. Civil Aeronautics Board;
7. Bureau of Patents, Trademarks and
Technology Transfer;
8. National
Electrification
Administration;
9. Energy Regulatory Board;
10. National
Telecommunications
Commission;
11. Department of Agrarian Reform under
RA No. 6657;
12. GSIS;
13. Employees
Compensation
Commission;
14. Agricultural Inventions Board;
15. Insurance Commission;
16. Philippine Atomic Energy Commission
17. Board of Investments
18. Construction Industry Arbitration
Commission;
19. Voluntary arbitrators
20. Ombudsman
(administrative
disciplinary cases)
Section
2:
Cases
not
covered.
Judgments or final orders issued under
the Labor Code.
1. Special rules of procedure have also
been adopted for cases formerly within
the jurisdiction and adjudicatory
processes of the SEC (Regalado, 10th
Ed.).

a. Interim Rules of Procedure for


Intra-Corporate
Controversies
under R.A. 8799 (A.M. No. 01-204-SC, effective April 1, 2001)
b. Re: Mode of Appeal in Cases
Formerly Cognizable by the SEC
(A.M. No. 04-9-07- SC, effective
Sept. 30, 2004)
APPEAL FROM JUDGMENTS OR FINAL
ORDERS OF THE CTA
Resolution of a Division
A party adversely affected by a resolution
of a division of CTA on a motion for
reconsideration or a new trial, may file a
petition for review with the CTA en banc
(Sec.18 R.A.1125, as amended by Sec. 11
R.A. 9282).
Motion for Reconsideration or New
Trial: A Condition Precedent
A motion for reconsideration or a new
trial filed with the CTA division is a
condition precedent for filing a petition for
review with CTA en banc.
REMEDY FROM CTA EN BANC
A party adversely affected by a decision or
ruling of the CTA en banc may file with
the Supreme Court a verified petition for
review on certiorari under Rule 45 of the
1997 Rules on Civil Procedure (sec.19,
R.A. 1125, as amended by Sec. 12, R.A.
9282;
Riguera,
Primer-Reviewer
on
Remedial Law).
Note: The CTAs decision is no longer
appealable to the CA. The appeal to the
CTA shall be by petition for review under
a procedure analogous to that provided
for under Rules 42 and 43 of the Rules of
Court. However, it is not governed by the
technical rules of evidence. (RA 9282,
March 30 2004).

RULE 44

ORDINARY APPEALED CASES


Section 1.Title of the Case
a. If the plaintiff appeals plaintiffappellant and defendant-appellee
b. If defendant appeals plaintiffappellee and defendant-appellant
c. If both appeal, the plaintiff will be
designated as plaintiff-appellant
while the defendant is referred to
as defendant-appellant (Riguera,
2015).
CROSS-APPEAL
One where both parties have appealed
(Riguera, 2015).
PAPERS TO BE FILED BY THE PARTIES
IN AN ORDINARY APPEAL
1. Appellants Brief (Sec.7)
Filedwithin45daysfromthereceiptofnoti
ceof
theclerkofcourtthatalltheevidence,oral
anddocumentary,areattachedtotherec
ord.Itshallbein7legiblytypewritten,mi
meographedorprintedcopieswithproofo
fserviceof2copiesthereofupontheappell
ee.
CONTENTS OF APPELLANTS BRIEF.
(Sec. 13)
a. A subject index ofthematter inthebrief
withadigestoftheargumentsandpageref
erences,andatableofcasesalphabeticall
yarranged,textbooksandstatutes
citedwithreferencestothepages
wheretheyarecited;
b. An assignment oferrors intended to be
urged,whicherrorsshallbeseparately,di
stinctlyand
concisely
stated
withoutrepetitionandnumberedconsec
utively;
c. "StatementoftheCase,"aclearandconcis
e
statementofthenatureoftheaction,asu
mmaryoftheproceedings,theappealedr
ulingsandordersofthecourt,thenatureo

163

164

d.

e.

f.

g.

h.

fthejudgmentandanyothermattersnece
ssarytoanunderstandingofthenatureof
thecontroversy,withpagereferencestot
herecord;
"Statement of Facts,"a clearand
concise
statementin
anarrativeformofthefactsadmittedbybo
thpartiesandofthoseincontroversy,toge
therwiththesubstanceoftheproofrelatin
gtheretoinsufficientdetailtomakeitclea
rlyintelligible,withpagereferencestothe
record;
Aclearandconcisestatementoftheissue
s
offactorlawtobesubmittedtothecourtfor
itsjudgment;
"Argument,"
the
appellants
argumentson
eachassignmentoferrorwithpagerefere
ncestotherecord.Theauthoritiesreliedu
ponshallbecitedbythepage
ofthereportat
whichthecasebeginsandthepageofthere
portonwhichthecitationisfound;
Undertheheading"Relief,"aspecification
oftheorderorjudgmentwhichtheappella
ntseeks;and
Incases
notbroughtupbyrecordonappeal,
theappellantsbriefshallcontain,asana
ppendix,acopyofthejudgmentorfinalord
erappealedfrom.

2. Appellees Brief (Sec. 8)


Filed within 45 days from the receipt
of
appellantsbrief,withaproofofserviceof2
copiesthereofuponappellant.
Contents of Appellees Brief (Sec. 14)
a. A subject index ofthematter inthebrief
withadigestoftheargumentsandpageref
erences,andatableofcasesalphabeticall
yarranged,textbooksandstatutescited
withreferencestothepageswheretheyar
ecited;
b. "StatementofFacts,"theappelleeshallst
atethatheacceptsthe

statementoffactsintheappellantsbrief,
orundertheheading"CounterStatementofFacts,"heshallpointoutsuc
hinsufficienciesorinaccuraciesashebeli
evesexistintheappellantsstatementoff
actswithreferencestothepagesoftherec
ordinsupportthereof,butwithoutrepetit
ionofmattersintheappellantsstatemen
toffacts;and
c. "Argument,"theappelleeshallsetforthhi
sargumentsinthecaseoneachassignme
ntoferrorwithpagereferencestotherecor
d.Theauthorities relied on shallbecited
by
the
pageofthereportatwhichthecasebegins
andthepageofthereportonwhichthecita
tionisfound.
3. Appellants Reply Brief (Sec. 9)
Filed within 20 days from receipt of
the appellees brief, answering points
in the appellees brief not covered in
his main brief.
Withdrawal of Appeal as a Matter of
Right. (Sec. 3)
An appeal may be withdrawn as a
matter of right at any time before the
filing
of
the
appellees
brief.
Thereafter, the withdrawal may be
allowed in the courts discretion
(Riguera, Primer on Remedial Law, Vol.
12015).
POWER OF COURT OF APPEALS(THEF)
1. Try cases
2. Conduct hearings
3. Receive evidence
4. Perform acts necessary to resolve
factual issues on cases falling within
its original and appellate jurisdiction
Subject to the rule that factual or legal
issues not raised in the lower court may
not be raised on appeal (Riguera, 2013).

EXTENSION OF
BRIEFS. (Sec.12)

TIME

FOR

FILING

General Rule: Extension of time is not


allowed.
Exception: May be allowed for:
1. Good and sufficient cause, and
2. A motion for extension is filed before
the expiration of the time sought to be
extended.
Questions that may be
Appeal. (Sec.15)
Questions of fact and law.

raised

on

Purely legal questions cannot be raised.


Memorandum
In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the
parties shall file, in lieu of briefs, their
respective memoranda within a nonextendible period of 30 days from the
receipt of the notice issued by the clerk
that
all
the
evidence,
oral
and
documentary, is already attached to the
record (Riguera 2013).
BRIEF
Filed
ordinary
appeals

in

Filed within 45
days
Contents
specified
by
rules

MEMORANDUM
Filed in
1. certiorari,
2. prohibition,
3. mandamus,
4. quo warranto and
5.
Habeas
corpus
cases
Filed within 30 days
Shorter, briefer, only
one issue involved
no subject index or
assignment of errors
just facts and law
applicable.

RULE 45
APPEAL BY CERTIORARI TO
THE SUPREME COURT
Q: What is a Petition for Review on
Certiorari (Appeal by Certiorari)
A: It is a mode of appeal to the SC from a
judgment or final order of the:
1. CA;
2. SB;
3. RTC, where the appeals raises only
pure questions of law;
4. CTA en banc (See Sec. 19 R.A. 1125
as amended by R.A. 9282);
5. CA, SB, and RTC in a writ of amparo
or writ of habeas data case (See Sec.
19, Rule on the Writ of Amparo; Sec.
19, Rule on the Writ of Habeas Data)
Notes:
1. An appeal to the Supreme Court may
be taken only by the filing of a verified
petition for review on certiorari,
Except in criminal cases where the
penalty imposed is reclusion perpetua
or life imprisonment (Sec. 3 Rule 56).
2. A judgment imposing the death
penalty is subject to automatic review.
(Riguera 2013).
Section 1. Filing of Petition with the
Supreme Court.
(As amended A.M. No. 07-7-12-SC
December 4, 2007)
1. From a judgment or final order of CA,
Sandiganbayan, RTC, other courts
whenever authorized by law
2. Verified petition for review on
certiorari
3. The
petition
may
include
an
application for a writ of preliminary
injunction
or
other
provisional
remedies

165

166
4. Petition shall raise only question of
law, which must be distinctly set
forth.
Section 2. How to Appeal.
1. Thepetitionshallbefiledwithin15days
from:
a. Notice ofthejudgmentor final order
orresolutionappealedfrom,or
b. Ofthedenialofthepetitionersmotion
fornewtrialorreconsiderationfiledin
duetimeafternoticeofjudgment.
2.
Onmotiondulyfiledandserved,withfullp
aymentofthedocketandotherlawfulfees
and
3. Thedeposit
forcostsbeforetheexpirationoftheregle
mentaryperiod,
Note:
TheSupremeCourtmayfor
justifiablereasonsgrantanextensionof30
daysonlywithinwhichtofilethepetition.
A.M.No.00-2-14-SC(Amendments
to
Sec. 4, Rule 7 and Sec. 13, Rule 41)
Anyextensionoftimegrantedbyacourtshoul
d
becomputedfromtheexpirationoftheorigina
lperiod,regardlessofthefactthatsaidexpiryd
atefallsonaSaturday,Sunday,orlegalholida
y.(Riguera2013,p.485)
AnRTCjudgehasnorighttodisapproveanotic
eofappealonthegroundthattheissuesraised
involveapurequestionoflaw,andthat
themodeofappealiserroneous.Thatisthepre
rogativeoftheCA,nottheRTCjudge.Anoticeo
fappealneednotbeapproved
bythejudge,unlikearecordonappeal.
(Khov.Camacho)
Note: Fresh Period Rule Applies in this
Rule.
Question of Fact

Question of Law

Exists when there


is a doubt or
controversy as to
what the law is
on a certain state
of facts.

Exists
when
the
doubt or difference
rises as to the truth
or falsehood of facts.

TEST TO DETERMINE WHETHER


QUESTION OF FACT OR LAW
Whethertheappellatecourtcandetermineth
eissueraisedwithoutreviewingorevaluating
theevidence,inwhichcaseitisaquestionofla
w,otherwise,itwillbeaquestionoffact.
CONCLUSIVENESS OF FACTS
General Rule: The findings of fact of the
CA are final and conclusive and cannot be
reviewed on appeal to the SC.
Exceptions:
1. When the finding is grounded entirely
on
speculations,
surmises
or
conjectures;
2. When inference made is manifestly
absurd, mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of
discretion in the appreciation of facts;
5. When the findings of fact are
conflicting;
6. When the CA in making its findings
went beyond the issues of the case
and the same is contrary to both the
admissions
of
appellants
and
appellees;
7. When the findings of fact of the CA
are at variance with those of the trail
court, the SC has to review the
evidence in order to arrive at the
correct findings based on the record;
8. When the findings of fact are
conclusions
without
citation
of
specific evidence on which they are
based;

9. When the facts set forth in the


petition as well as in the petitioners
main and reply briefs are not disputed
by the respondents;
10. The findings of fact of the CA is
premised on the supposed evidence
and is contradicted by the evidence on
record;
11. When certain material facts and
circumstances have been overlooked
by the trial court which, if taken into
account, would alter the result of the
case in that they would entitle the
accused to acquittal.
Section 4. Contents of Petition.
1. Statethefullnameoftheappealingpartya
sthepetitionerandtheadversepartyasth
erespondent,withoutimpleadingthelow
ercourtsor
judgesthereofeitheraspetitionersorresp
ondents;
2. Indicatethematerialdates
a. Whennoticeofthejudgmentorfinalor
derorresolutionsubjectthereofwasr
eceived;
b. Whena
motionfornewtrialor
reconsideration,ifany,wasfiledand;
c. Whennoticeofthedenial thereofwas
received;
3. Set forth concisely a statementof the
mattersinvolved, and the reasonsor
argumentsreliedonfortheallowanceofth
epetition
4. Beaccompaniedbyaclearlylegibleduplic
ateoriginalora
certified
truecopyof
thejudgmentorfinalorderorresolutionc
ertifiedbytheclerkofcourtofthecourtaqu
oandtherequisitenumberofplaincopiest
hereof,andsuchmaterialportionsof
therecordaswouldsupportthepetition;
5. Containasworncertificationagainstforu
mshoppingasprovidedinRule42, Sec.2.

epartyshallbesubmittedtogetherwith
thepetition.Refer to Rule 45, Sec.3.

1.

2.

a.
b.
c.

GROUNDSFOROUTRIGHTDISMISSA
LORDENIAL
Failuretocomplywithanyofthefollowing:
a. Paymentofdocketorotherlawful
fees;
b. Depositforcosts;
c. Proofofserviceofthepetition;
and the contents of and the
documents
whichshouldaccompanythepetition
shallbea
sufficientgroundforthedismissalth
ereof.
Onitsowninitiative,theSCmaydeny the
petition onthe ground that theappeal
is either:
Withoutmerit;
Prosecutedmanifestlyfordelay,or;
Thatthequestionsraisedthereinare
toounsubstantialtorequireconsideratio
n.(Rule45, Sec.5)
Note:
ReviewunderRule45isnotamatterofrigh
tbutofsoundjudicialdiscretion,granted
onlywhentherearespecialandimportant
reasonstherefor. Refer to Rule 45,
Sec.6.(Riguera2013).
Rule 45 is applicable to both civil and
criminal cases

Appeal By Certiorari
Rule 45
Mode of appeal

Special c

Seeks to review final judgments or final order

Directed
matters

Raises only questions of law

Raises q

Note:
Proofofserviceofacopyofthepetitiononth
elowercourtconcernedandontheadvers

167

168
rywrit

Filed within 15 days from notice of judgment


or final order appealed from

sorpro
cesses
,wheth

Does not require


reconsideration

prior

motion

erorno

for

ttheya
reinai
dofitsa

Stays judgment appealed from

ppellat

Appellant appellee are the original parties

ejuris
diction
,

Filed with the SC

6. Exclus
iveorig
inaljur

RULE 46
ORIGINAL CASES

isdicti
onover
action

Section 1. Title of cases.


In all cases originally filed in the Court of
Appeaks, the party instituting the action
shall be called the petitionr and the
opposing party shall be called the
respondent.

sforan
nulme
ntofju
dgmen
tsofRT
C

Section 2. To what actions applicable.


General
Rule:
UnderBP
Blg.129,theCAhasoriginaljurisdictiontoiss
ue:
1. Writso

Exceptions:
1. Asothe
rwisep
rovide

fmand

d,

amus,

2. Theact

2. Prohib

ionsfor

ition,
3. Certior

annul
mentof

ari,an

judgm

entsha

4. Quow

llbegov

arrant

ernedb

o,and

yRule4

5. Auxilia

7,

3. Forcer
tiorari,
prohib
itiona
ndma
ndam
usbyR
ule65,
and
4. Quow
arrant
obyRul
e66.
(Sec.2)
Note:

Petitionforhabeascorpus

havebeenexcludedfromthecoverageofthe
presentrevised
Rulesincetheyareactuallyspecialproceed
ingsandthecorresponding
proceduralrulesgoverning
thesameareprovidedforintheRulesonspe
cialproceedingsandinRule41,Sec.3(Rega
lado,10thEd.)
Section 3.Contents and Filing of
Petition; Effect of Non- Compliance.

Contents
1. The full names and actual addresses
of all the petitioners and respondents;
2. A concise statement of the matters
involved;
3. The factual background of the case,
and;
4. The grounds relied upon for the relief
prayed for
In actions filed under Rule 65, the
petition shall further indicate the
material dates showing:

1. When notice of the judgment or final


order or resolution subject thereof
was received;
2. When a motion for new trial or
reconsideration, if any, was filed, and;
3. When notice of the denial thereof was
received (Circ. No. 39-98).
Filing
1. Filed in seven (7) clearly legible copies;
Note: This has been amended in view of
A.M. No. 11-9-4-SC, Efficient Use of
Paper Rule, effective January 1, 2013.
Sec. 5. Copies to be filed.
Unless
otherwise directed by the court, the
number of court- bound papers that a
party is required or desires to file shall be
as follows:
a. SC Division: one original (properly
marked) and four copies and two sets
of annexes (one attached to the
original and an extra copy);
b. SC en banc: ten additional copies and
two sets of annexes (one attached to
the original and an extra copy)
c. CA: one original (properly marked)
and two copies with their annexes
d. CTA Division: one original (properly
marked) and two copies with annexes
e. CTA en banc: one original (properly
marked) and eight copies with
annexes
f. Other courts: one original (properly
marked) with the stated annexes
attached to it
2. Together with proof of service thereof
on the respondent;
3. With the original copy intended for the
court indicated as such by the
petitioner, and;
4. Shall be accompanied by a clearly
legible duplicate original or certified
true copy of the judgment, order,
resolution, or ruling subject thereof,

169

170
such material portions of the record
as referred to therein, and other
documents relevant or pertinent
thereto.
5. Petitioner Shall Submit Certification
Against Forum Shopping. (Rule 7,
Sec.5.)
The certification shall be accomplished
by:
1. The proper clerk of court or his duly
authorized representative, or;
2. By the proper officer of the court,
tribunal, agency, or office involved, or
by his duly authorized representative.
The other requisite number of copies of
the petition shall be accompanied by
clearly legible plain copies of all
documents attached to the original.
Certification Against Forum Shopping
The petitioner shall also submit:
1. a sworn certification that he has not
theretofore commenced any other action
involving the same issues in the SC, CA
or different divisions thereof, or any other
tribunal or agency;
2. If there is such other action or
proceeding, he must state the status of
the same; and
3. if he should thereafter learn that a
similar action or proceeding has been
filed or is pending before the SC, CA, or
different divisions thereof, or any other
tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within
five (5) days therefrom.
Note:
1. The original copy of the petition
intended for the court shall be marked or
indicated as such, since, among others, it
must be accompanied by a clearly legible
duplicate original or certified true copy of

the adjudicatory issuance complained of,


whereas:
a. The
other
copies
may
be
accompanied by only plain copies
thereof.
b. If the original copy of the petition
intended
for
the
court
is
accompanied by only plain copies
of said documents, the same may
be dismissed outright. (Regalado,
10th Ed.)
General Rule: The lack of certification
against form shopping is generally not
curable by the submission thereof after
the filing of a petition.
Exception: In exceptional circumstances,
however, such as the filing of the
certification a day after but within the
reglementary period for filing such
petition, the belated filing was allowed as
a substantial compliance.
Note: While the filing of certification is
mandatory, still the requirement must not
be interpreted too literally (Regalado, 10th
Ed., citing Shipside, Inc. v CA, GR
No.143377, 2001).
CERTIFIED TRUE COPY
The certified true copy shall be such other
copy furnished to a party at his instance
or in his behalf, by the authorized officers
or representatives of the issuing entity.
1. It must comply with all the
regulations therefor of the issuing
entity and
2. It is the authenticated original of such
certified true copy, and
3. It should not be a mere Xerox copy
thereof,
4. It shall be attached as an annex to the
petition or other initiatory pleading
(Regalado, 10th Ed., citing NYK
International v NLRC, GR No. 146267,
2003).

Effect of Failure to File Comment(Sec.


7)
The case may be decided on the basis of
the record, without prejudice to any
disciplinary action which the court may
take against the disobedient party.

RULE 47
ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
RESOLUTIONS.
ANNULMENT OF JUDGMENT
A remedy in law independent of the case
where the judgment sought to be
annulled was rendered.
A person who is not a party to the
judgment may sue for its annulment
provided he can prove that the same was:
1. Obtained
through
fraud
or
collusion; and
2. Would
be
adversely
affected
thereby.
An action for annulment of judgment may
be availed of even if the judgment to be
annulled had already been fully executed
or implemented. (Regalado, 10th Ed.,
citing Isalmic DaWah Council of the Phil. v
CA, GR No.80892, 1989).
Purpose:
To have the final and executed judgment
set aside so that there will be renewal of
litigation.

Section 1: Coverage
This rule shall govern the annulment by
the Court of Appeals of judgments or final
orders and resolutions in civil actions of
RTC for which the ordinary remedies of
new trial, appeal, petition for relief or
other appropriate remedies are no longer

available through
petitioner.

no

fault

of

the

Section 2: Grounds for Annulment of


Judgment of RTC in Civil Cases
1. Lack of jurisdiction; and
2. Extrinsic fraud.
However, extrinsic fraud is not
available as a ground if availed of
earlier in a motion for new trial or
petition for relief
REMEDY UNDER RULE 47 TO BE
AVAILABLE
The petitioner must have failed, with
sufficient justification, to either:
1. Move
for
new
trial
or
reconsideration;
2. Appeal from the judgment or final
order;
3. File a petition for relief against the
judgment or final order; or
4. Take other appropriate remedies
assailing the questioned judgment
or final order
Note: If he failed to avail of those
remedies without sufficient justification,
he cannot resort to the action for
annulment provided in this Rule,
otherwise he would benefit from his own
inaction or negligence (Regalado, 10th Ed.)
Section 3: Period to File Action
1. For extrinsic fraud within four years
from discovery;
2. Lack of jurisdiction
a. Same period for annulment of
contracts on that ground. Refer to
Art. 1371, NCC.
b. Also, the time when the period
starts to run (Regalado, 10th Ed.);
must be filed before action is
barred by estoppels by laches.
Where to File
Under BP Blg. 129:

171

172
1. CA has exclusive original jurisdiction
in actions to annul judgment of RTC
(Sec. 9[2]) and
2. RTC retains their jurisdiction to annul
judgments of inferior courts in the
region (Sec. 19[6]; Regalado, 10th Ed.)
Section 7: Effects of Judgment
1. Set aside the questioned judgment or
final order and render the same null
and void, without prejudice to the
refilling of the original action in the
proper court.
2. Where the judgment or final order or
resolution is set aside on the ground
of extrinsic fraud, the court may on
motion order the trial court to try the
case as if a timely motion for new trial
had been granted therein.
3. The judgment may include the award
of damages, attorneys fees and other
relief. (Sec.9)
Section 8: Suspension of Prescriptive
Period.
Prescriptive period for re-filing the
original action is suspended unless the
extrinsic fraud is attributable to the
plaintiff in the original action.
Collateral Attacks of Judgment
A collateral or incidental attack is made
when, in another action to obtain a
different relief, an attack on the judgment
is made as an incident in said action.
This is proper only when it is patent that
the court which rendered such judgment
had no jurisdiction.

RULE 48
PRELIMINARY CONFERENCE
Purposes:
1. To consider the possibility of
amicable settlement except when
the case is not allowed by law to

be compromised;
2. To define, simplify and clarify the
issues for determination;
3. To formulate stipulations of facts
and admission of documentary
exhibits, limit the number of
witness to be presented;
4. To take up such other matters
which may aid the court in the
prompt disposition of the case.
Preliminary Conference may be availed of
not only in original actions but also in
cases on appeal wherein a new trial was
granted on the ground of newly
discovered evidence.
Failure of the appellant to appear at the
preliminary conference is a ground to
dismiss the appeal. (Sec. 1[h], Rule 50 and
Sec. 5[e], Rule 56)
Rule 48 is applicable to the SC in original
and appealed cases (Secs. 2 and 4, Rule
56).
Binding Effect of the Results of the
Conference (Sec.3)
General rule: The resolution embodying
all the actions taken therein, the
stipulations and admissions made, and
the issues defined shall control the
subsequent proceedings in the case.
Exception: If within 5 days from notice
thereof, any party shall satisfactorily
show valid cause why the same should
not be followed.

RULE 49
ORAL ARGUMENT
Section 1: When Allowed
The court motu proprio or upon motion of

a party, the court may hear the parties in


oral argument on the merits of a case, or
on any material incident in connection
therewith.
No hearing or oral argument for motions.
General rule: Motions shall not be set for
hearing (Sec.3)Exception: Unless the
court otherwise directs, no hearing or oral
argument shall be allowed in support
thereof. (Thus, motions filed in the CA
need not contain a notice of hearing
anymore)
Period to Object The adverse may file
objections to the motion within five (5)
days from service, upon the expiration of
which such motion shall be deemed
submitted for resolution.

RULE 50
DISMISSAL OF APPEAL
Section 1: Grounds for Dismissal of
appeal by the Court of Appeals.
1. Failure
to
file
within
the
reglementary period;
2. Failure to file the notice of appeal
or record on appeal within the
period;
3. Failure of the appellant to pay the
docket and other lawful fees;
4. Unauthorized
alterations,
omissions, or additions in the
approved record on appeal;
5. Failure of the appellant to serve
and file the required number of
copies
of
his
brief
or
memorandum within the time
provided;
6. Absence of specific assignment of
errors in appellants brief or page
references to the record;
7. Failure of the appellant to take
necessary steps for the completion

or correction of the record within


the time limited by the order;
8. Failure of appellant to appear at
the preliminary conference or to
comply with orders, circulars, or
directives of the court without
justifiable cause
9. Judgment or order appealed from
is not appealable.
Section 2: Dismissal of Improper
Appeal to the Court of Appeals.
No transfer of appeals, erroneously taken
to it or to the CA, whichever of these
tribunals has appropriate appellate
jurisdiction, will be allowed.
Elevating such appeal by the wrong mode
of appeal shall be a ground for dismissal
(Regalado, 2005).
A resolution of the CA dismissing the
appeal and remanding the case to the
trial court for further proceedings is
merely interlocutory, hence a motion for
its reconsideration filed a year later may
be entertained and granted
Section 3: Withdrawal of Appeal.
1. As a matter of right at any time
before the filing of the apellees
brief;
2. In the discretion of the court.
Note: CA may dismiss the appeal outright
even without motion.

RULE 51
JUDGMENT
Section
1.
When
case
deemed
submitted for judgment
The new provisions in this section are
intended to clarify and provide specific
rules on when a case is deemed
submitted for judgment, depending in
whether what is involved is an ordinary
appeal, petition for review, or an original

173

174
action, and whether or not a hearing was
conducted by the appellate court.
The determination of the date of
submission of the case is made doubly
important by the fact that under the
Constitution, such date is the reckoning
point for the periods for deciding or
resolving the case or matter, and which
periods are now mandatory in nature.
(Regalado, 10thEd.)

writing of the decision.


Section 3: Quorum and Voting in the
Court
For deliberation: participation of all 3
justices of a division.
For pronouncement of judgment or
final resolution: Unanimous vote of all 3
Justices of a division.

CASE DEEMED SUBMITTED


If FOR
the JUDGMENT
3 judges do not reach a
unanimous vote:
1.Where no hearing on the merits of the
main
is held
1. case
The clerk
shall enter the votes of the
pleading,
brief,Justices
or memorandum
required by
dissenting
in the record.
the Rules or by the court itself, or the
2. TheofChairman
division shall
expiration
the period of
for the
its filing.
refer the case, together with the minutes
of thesuch
deliberation,
the Presiding
2.Where
hearing isto held
A. IN ORDINARY APPEALS
Justice. or upon filing of the last pleading
termination
or memorandum as may be required or
3. The Presiding
Justice
shallcourt,
designate
2
permitted
to be filed
by the
or the
other
Justices
chosen
by
raffle,
forming
a
expiration of the period for its filing.
special division of 5 Justices.

B. IN ORIGINAL ACTIONS AND


PETITIONS FOR REVIEW

1. Where no comment is filed upon the


4. Participation of all 5 justices of a
e
special division.
2.
5. The concurrence of a majority of such
of the
last pleading
permitted
special
division required
shall be or
required
for to
thebe
filedpronouncement
by the court, of
or athejudgment
expiration
of
the
or final
period
for
its
filing.
resolution.
3. Section 5: Form of Decision
main case is held
upon
the decision
filing of
the resolution
last pleading
Every
or final
of theor
memorandum
as
may
be
required
or
permitted
court in appealed cases shall clearly and
to be
filed by the
court,
the expiration
the
distinctly
state
the or
findings
of fact of
and
period
for
its
filing.
conclusions of law on which it is based,

Section 2: By Whom Rendered


Judgment shall be rendered by the
members of the court who participated in
the deliberation on the merits of the case
before its assignment to a member for the

which may be contained in the decision or


final resolution itself, or adopted from
those set forth in the decision, order or
resolution appealed from.
Note however, that the requirement for the
statement of facts and the law, as

provided by the Constitution, B.P. 129


and the foregoing section, refers to a
decision or final resolution. The same
does not apply to Minute Resolutions
since these usually dispose of the case
not on its merits but on procedural or
technical considerations (Regalado, 2005).
Section 9: Promulgation and Notice of
Judgment
After judgment or final resolution of the
CA and dissenting or separate opinions if
any, are signed by the Justices taking
part, they shall be delivered for filing to
the clerk who shall indicate thereon the
date of promulgation and cause true
copies to be served upon parties or
counsel.
Section 10: Entry of Judgment and
Final Resolutions
The date when judgment or final
resolution becomes executory shall be
deemed as date of entry.
NOTE:
Memorandum
permitted in the CA.

decisions

are

Execution of Judgment (See also S39)


The motion for execution of judgment may
only be filed on the proper court of its
entry. The writ may be sought and is the
issued by the court from which the action
originated, which is the court of origin or
a quo.
Dismissals of Action without Trial
which are considered Dismissal on the
Merits
1. Two dismissal rule under Sec. 1,
Rule 17.
2. Dismissal for failure to prosecute,
to appear at trial, or to comply
with rules or order of the court
under Sec. 3, Rule 17 and
operates as adjudication on the
merits unless otherwise ordered

by the court.
3. Judgment on the pleadings,
summary judgment, judgment by
confession,
judgment
by
compromise
operates
as
adjudication on the merits.
4. Dismissal on the ground of noncompliance with Circular No. 1-88
had the effect of resolving the
issues raised therein.

RULE 52
MOTION FOR
RECONSIDERATION
Section 1: Period for Filing
Within 15 days from notice of judgment or
final resolution with proof of service on
the adverse party.
Section 3: Resolution of Motion
In the Court of Appeals, a motion for
reconsideration shall be resolved within
90 days from the date when the court
declares it submitted for resolution.
Section 4: Stay of Execution
Pendency of a motion for reconsideration
stays the execution of judgment unless
the court, for good reasons, directs
otherwise.

RULE 53
NEW TRIAL
Section 1: Period for Filing
Any time after the appeal from the lower
court has been perfected AND before the
CA loses jurisdiction over the case.
Ground:
Newly discovered evidence which:
a. could not have been discovered prior to

175

176
the trial in the court below by the exercise
of due diligence, and;
b. which is of such character as would
probably change the result.
Motion must be accompanied by affidavits
of merit. Same procedure followed as in
new trials before the RTC.

RULE 54
INTERNAL BUSINESS
Section 1: Distribution of cases among
divisions
Rule: Cases of the CA are allotted among
different divisions.
When CA should sit en banc:
a. To make proper orders or rules to
govern the allotment of cases among
divisions;
b.
Tomakerulesontheconstitutionofdivisions;
c. To make rules on the regular rotation of
Justices;
d. To make rules
vacancies; and

on

the

filling

of

majority of the members of those present;


2. Division affirmative votes of 3
members.

RULE 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
Judgments and final resolutions of the
court shall be published in the Official
Gazette and in the Reports officialy
authorized by the court. (Philippine
Reports/SCRA).

RULE 56
PROCEDURE IN THE
SUPREME COURT
Section 1: Original Cases
1.Petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
writ of amparo;
2.Disciplinary proceedings against judges
and attorneys;
3.Cases affecting ambassadors, other
public ministers, and consuls.

e. To make rules on other matters relating


to the business of the court.

NOTE: Exclusive list

Section 2: Quorum of the Court


What constitutes quorum:
1.En banc majority of actual members
of the court shall constitute a quorum;
2.Division 3 members shall constitute a
quorum.

Section 3: Appealed CasesMode of


appeal
An appeal to SC can only be taken by
petition for review on certiorari, except in
criminal cases where the penalty imposed
is death, reclusion perpetua, or life
imprisonment.

Number of affirmative votes necessary


to
pass
a
resolution/pronounce
judgment:
1. En banc affirmative votes of the

Section 5: Grounds for dismissal of


appeal by SC.
Failure to take the appeal within the
reglementary period;

2.
3.

4.

5.

6.
7.

Lack of merit in the petition;


Failure to pay the requisite docket fee and
other lawful fees or to make deposit for
costs;
Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition;
Failure to comply with any circular,
directive or order of the SC without
justifiable cause;
Error in choice or mode of appeal;
Case is not appealable to the SC.
NOTE: It is discretionary upon the SC
(and the CA) to call for preliminary
conference similar to pre- trial.
General rule: Appeal to SC by notice of
appeal shall be dismissed.
Exception: In criminal cases where the
penalty imposed is life imprisonment, or
when a lesser penalty is imposed but
involving offenses committed on the same
occasion or arising out of the same
occurrence which gave rise to the more
serious offense for which the penalty of
death or life imprisonment is imposed
(Section 3, Rule 122)
NOTE: Appeal by certiorari from RTC to
SC submitting issues of fact may be
referred to the CA for decision or
appropriate action, without prejudice to
considerations on whether or not to give
due course to the appeal as provided in
Rule 45.
Section 7: Procedure if Opinion is
Equally Divided
Where the Court en banc is equally
divided in opinion, or the necessary
majority cannot be had, the case shall
again be deliberated on, and if after such
deliberation no decision is reached, the
original action commenced in the court
shall be dismissed; in appealed cases, the

judgment or order appealed from shall


stand affirmed; and on all incidental
matters, the petition or motion shall be
denied.

PROVISIONAL REMEDIES
Nature of Provisional Remedies
These are temporary, auxiliary and
ancillary remedies available to the litigant
for the protection and the preservation of
his rights while the main action is
pending. They are writs and processes
which are not main actions and they
presuppose the existence of a principal
action.
Provisional
means
temporary,
preliminary or tentative (Tan v nAdre, 450
SCRA 145).
Purposes:
1. To preserve or protect the rights or
interests of litigants while the
main action is pending.
2. To secure the judgment.
3. To preserve the status quo.
4. To preserve the subject matter of
the action.
KINDS OF PROVISIONAL REMEDIES:
(ARIRS)
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendente lite (Rule 61)
Note: The enumeration is NOT exclusive.
The family court is in the nature of
Provisional Remedies and may grant the
following:
1. Spousal Support
2. Child
Support
of
Common
Children
3. Child Custody
4. Visitation Rights

177

178
5. Hold Departure OrderOrder of
Protection
6. Administration of Community or
Conjugal Property (A.M. No.02-1112-SC Rule on Provisional Orders)
Note: Provisional remedies are also
available in criminal cases pursuant to
Sec. 1, Rule 127 of the Revised Rules of
Criminal Procedure. The provisional
remedies in civil actions, may be availed
of in connection with the civil action
deemed instituted with the criminal
action.
JURISDICTION OVER PROVISIONAL
REMEDIES
1. The court which grants or issues a
provisional remedy is the court which
has jurisdiction over the main action.
2. Even an inferior court may grant a
provisional remedy in an action
pending with it and within its
jurisdiction (Riano. 2009 Ed, p. 532).
3. All inferior courts can grant all
appropriate
provisional
remedies,
including
the
appointment
of
receivers, with the writ of preliminary
injunction being now available in
either forcible entry or unlawful
detainer cases.
Note: The enforcement of said writs do
not require the approval of the Regional
Trial Courts having jurisdiction over the
inferior
courts
issuing
the
same.
(Regalado, 10th Ed.)

RULE 57
PRELIMINARY ATTACHMENT
Preliminary Attachment
1. A provisional remedy issued upon
order of the court where an action is
pending to be levied upon the
property of the defendant therein, the
same to be held by the sheriff as

security for the satisfaction


whatever judgment that might
secured in the said action by
attaching
creditor
against
defendant (Torres v Satsatin,
No.166759, 2009).

of
be
the
the
GR

2. It is a provisional remedy, auxiliary or


incidental to the main action, whereby
the debtors property capable of being
taken under levy and execution is
placed under custody of the law
pending the determination of the
cause, to secure the payment of any
judgment that may be recovered
therein (Davao Light & Power CO. v
CA, GR No. 93262, 1991).
Who May Apply
The plaintiff or defendant who asserts a
counterclaim, a cross-claim or a thirdparty claim may avail of the remedy.
When
to
apply
for
Preliminary
Attachment:
1. At the commencement of the
action or
2. At any time before entry of
judgment.
KINDS OF ATTACHMENTS:
1. Preliminary Attachment attach
the property while the case is
going on, before judgment, or at a
commencement, as security for
the satisfaction of any judgment
that may be recovered
2. Garnishment process in which
money or goods in the hands of a
third person which are due to the
defendant, are attached by the
plaintiff
3. Levy on execution or final
attachment a writ issued by the
court after judgment by which the
property of the judgment obligor is
taken into the custody of the court

for the satisfaction of a final


judgment.
STAGES
OF
A
PRELIMINARY
ATTACHMENT:
1. Filing of the application for issuance
of writ of preliminary attachment in
the form of an affidavit.
2. Court issues the Order granting the
application. The order fixes the
amount of the attachment bond but
does not yet require the sheriff to
attach the property of the person
against whom it is issued. Refer to
Rule 57, Sec. 4.
3. The applicant must thereafter file the
attachment Bond in the amount fixed
by the court.
4. The court issues the Order of
attachment, with the corresponding
writ of attachment, requiring the
sheriff to attach properties of the
adverse party as may be sufficient to
satisfy
the
applicants
demand.
Several writs may be issued at the
same time to the sheriffs of the courts
of different judicial regions.
5. The writ of attachment is enforced by
the sheriff pursuant to Sec. 5 and 7 of
Rule 57.
6. After enforcing the writ, the sheriff
must make a Return thereon to the
court from which the writ is issued.
Refer to Rule 57, Sec. 6.
Note: Jurisdiction over the person of the
defendant is only required in the 5th
stage.
Section 1: Grounds for Issuance Of Writ
Of Attachment.
1. Recovery of specified amount of
money and damages, except moral
or exemplary, where party is about
to depart from the Philippines,
with intent to defraud creditors;

2. Action for money or property


embezzled or for willful violation of
duty by public officers, officers of
corporation, agent, or fiduciary;
3. Recovery of possession of property
(both real and personal) unjustly
detained, when the property is
concealed or disposed of to prevent
its being found or taken;
4. Action against party guilty of fraud
in contracting the debt or
incurring the obligation or in the
performance thereof;
5. Action against party who is
concealing
or
disposing
of
property, or is about to do so, with
intent to defraud creditors;
6. Action against party who is not a
resident of the Philippines, and
cannot be found therein or upon
whom service by publication can
be made.
Note: The grounds are exclusive.
REQUISITES FOR THE ISSUANCE OF
AN ORDER OR WRIT OF PRELIMINARY
ATTACHMENT:
1. The case must be any of those
where Preliminary Attachment is
proper as provided under Rule 57,
Sec. 1.
2. The appellant must file a motion
(ex parte or with notice and
hearing).

3. The appellant must show by


affidavit that:
a. A sufficient cause of action
exists.
b. The case is one of those
mentioned in Sec. 1 hereof.
c. There is no sufficient
security for the claim
sought to be enforced by
the action.

179

180
d. The amount claimed in the
action or value of property
the possession of which
the plaintiff is entitled to
recover, is as much as the
sum for which the order is
granted
above
all
counterclaims. Refer to
Rule 57, Sec. 3.
4. Applicants bond or attachment
bond The attaching party shall
post a bond executed to the
adverse party in the amount fixed
by the court in its order granting
the
issuance
of
the
writ,
conditioned that the applicant will
pay all the costs which may be
adjudged to the adverse party and
all damages which he may sustain
by reason of the attachment, if the
court shall finally adjudge that the
applicant is not entitled thereto.
Refer to Rule 57, Sec. 4.
Note: The AFFIDAVIT and BOND
must be duly filed with the court
before the order issues.

ATTACHMENT LIEN
While the provision of Rule 57 are silent
on the length of time within which an
attachment lien shall continue to subsist
after the rendition of a final judgment,
jurisprudence dictates that the said lien
continues until the debt is paid, or the
sale is had under execution issued on the
judgment or until the judgment is
satisfied, or the attachment discharged or
vacated in the same manner provided by
law(Lim vs. Lazaro 3 July 1995).
EFFECT
OF
INCOMPLETE
ALLEGATIONS IN AFFIDAVIT
The affidavit filed therefor must contain
all the allegations required in Sec. 3 of

this Rule. Failure to do so renders the


writ totally defective, as the judge issuing
the writ acts in excess of jurisdiction
(Regalado, 10th Ed., citing K.O. Glass
Construction Co., Inc. v Valenzuela, GR
No.L-487856, 1982).
Section 2: Issuance and aContents of
the Order of Attachment, Affidavit and
Bond
An order of attachment may be issued
by:
1. Exparteor
2. Maybegrantedupon
motionwithnoticeandhearingbythecou
rtinwhichtheactionispending,orbytheC
AorSC.
Note:
Itmustrequirethesheriffofthecourttoattach
somuchofthepropertyinthePhilippinesofth
epartyagainstwhomitisissued.
Property to be attached:
1.Must not be exempt fromexecution.
2.Must be sufficient
applicants demand.

to

satisfy

the

Unless such party makes a deposit or


gives a bond as hereinafter provided in an
amount equal to that fixed in the
order,which may be the amount sufficient
to satisfy the applicants demand or the
value of the property to be attached as
stated by the applicant,exclusive of costs.
Note: Several writs may be issued at the
same time to the sheriffs of the courts of
different judicial regions.
Applicants bond or attachment bond
The attaching party shall post a bond
executed to the adverse party in the
amount fixed by the court in its order
granting the issuance of the writ,

conditioned that the applicant will pay all


the costs which may be adjudged to the
adverse party and all damages which he
may sustain by reason of the attachment,
if the court shall finally adjudge that the
applicant is not entitled thereto.
Rule on prior or Contemporaneous
Service of Summons
General Rule:No levy on attachment shall
be enforced unless it is preceded or
contemporaneously
accompanied
by
service of summons, together with:
1. A copy of the complaint,
2. Application for attachment,
3. Applicants affidavit,
4. Bond,
5. Order,
6. Writ of attachment,
on the defendant within the Philippines
(Riguera 2013).
While the petition for a writ of preliminary
attachment may be granted and the writ
itself issued before the defendant is
summoned, the writ of attachment cannot
be implemented until jurisdiction over the
person of the defendant is obtained.
(Onate vs. Abrogar 23 February 1995)
The attachment of properties before the
service of summons on the defendant is
invalid, even though the court later
acquires jurisdiction over the defendant.
At the very least, then, the writ of
attachment
must
be
served
simultaneously with the service of
summons before the writ may be
enforced. (Onate vs. Abrogar 23 February
1995)
Exception:
1. The summons could not be served
personally or by substituted
service despite diligent efforts

2. The defendant is a resident of the


Philippines Temporarily absent
therefrom
3. Defendant is a Non-resident of the
Philippines.
4. The action is in rem or quasi in
rem.
Section 5: Manner of Attaching Real
and Personal Property; When Property
attached is claim by third person
Thesheriffenforcingthewritshall:
1. Without delay and with all
reasonable diligence attach,
2. To await judgment and execution
in the action,
3. Only so much of the property in
the Philippines of the party
against whom the writ is issued,
4. Not exempt
from execution,as
may be sufficientto satisfy the
applicantsdemand.
Manner of Attachment:
1. Realproperty,orgrowingcropsthere
on, oranyinteresttherein:
a. Byfilingwiththeregistryofde
edsacopyoftheorderofattach
ment,togetherwithadescrip
tionofthepropertyattacheda
nd
n oticethat
it
is
attached,and
b. By
leavingacopyofsuchorder,de
scription,andnoticewiththe
occupantoftheproperty.
Note:
Eveniftherealpropertyisnotregisteredwitht
heregister
ofdeeds,theattachmentmayberegisteredpu
rsuanttoSec.113[d],PDNo.1529.
2. Personalpropertycapableofmanual
delivery

181

182
a. Bytakingandsafelykeepingit
inhiscustody,
b. Afterissuance
ofcorrespondingreceiptther
efor.
3. Stocksorsharesinacompany
a. Byleavingwiththepresident
ormanagingagentthereof,
b. Acopyofthewrit,and
n oticestatingthatthe
stockorinterestofthepartya
gainstwhomtheattachmenti
sissuedisattachedinpursua
ntofsuchwrit.
4. Debtsandcredits,andotherpersonal
propertynotcapableofmanualdelive
ry
Debtsand
credits,includingbankdeposits,fina
ncialinterest,royalties,commission
sandother
personal
propertynotcapableofmanualdelive
ry,areattached:
a. Byleavingwiththepersonowi
ngsuchdebts,orhavinginhis
possessionorunderhiscontr
ol,suchcreditsorotherperso
nalproperty,orwithhisagent
,acopyofthewrit,andnoticet
hatthedebtsowingbyhimtot
hepartyagainstwhomattach
mentisissued,andthecredit
sandotherpersonalproperty
inhispossession,orunderhi
scontrol,belongingtosaidpa
rty,areattachedinpursuanc
eofthewrit.
4. Interestinestateofthedecedent
a. Byservingtheexecutororad
ministratororotherpersonal
representativeofthedeceden
twithacopyofthewritandn ot
icethatsaidinterestisattach
ed.

b. Acopyofthewritand
noticeshallalsobefiledinthe
officeoftheclerkofthecourtin
whichsaidestateisbeingsettl
edandserveupontheheir,leg
ateeordeviseeconcerned.
RemedyWhenWrit
ofAttachmentisImproperlyorIrregularly
Enforced
Filea
motiontodischargetheattachmentbasedon
Sec.13(Riguera2013,citingOnatevAbrogar,
G.R.No.107303,1995).
Note:
Apropertyincustodialegismaybeattached.I
nsuchcase:
1. Acopyofthewritofattachmentshallbefile
dwith
thepropercourtorquasijudicialagency,and
2 . Noticeoftheattachmentserveduponthec
ustodianofsuchproperty(Riguera2013,
citingSec.7).
Section
14:
Proceedings
where
property is claimed by third person
ThesameasthatinSec.16,Rule39;andSec.7
,Rule 61.
Procedure:
1. The third-party shall makean affidavit
showinghis
titleto
or
right
ofpossession overtheproperty.
2. Heshallservetheaffidavituponthelevyin
g
officer,files
abondapprovedbythecourtto
indemnifythirdpartyclaimant,notthesherifforofficer.
3. Amountofbondshouldbenotlessthanval
ueofpropertyleviedon.The
sheriffshallNOTbeliablefordamagesifbo
ndisfiled.
4. Aclaimfordamages
forthetakingorkeeping
ofthepropertymaybeenforcedbythethir
d-partyagainstthebond

providedhefilesanactionwithin120days
fromthefilingofthebond.
RemedyWhenThirdPartyClaimantisUnabletoRecoverthePro
perty
Fileaseparateactiontorecover possession.
Remedy When Third-Party Claimant is
Unable to Recover the Property
The remedy is to file a separate action to
recover possession.
Note: Nothing shall prevent the thirdparty claimant from vindicating his claim
to the property in the same or separate
action. Refer to Rule 39, Sec. 16 (Riguera
2013).
Section 12: Discharge of Attachment
and the Couner-bond.
Remedies Available to a Party against
Whom a Writ Is Issued or Enforced
1. He may discharge a writ of
attachment
which
has been
enforced
or
prevent
its
enforcement altogether if:
a. He makes a cash deposit or
files a counter-bond executed
to the attaching party
b. With the clerk of court where
the application is made,
c. In an amount equal to that
fixed by the court in the order
of attachment,
d. Exclusive of costs.
2. To quash the attachment based on
the following grounds:
a. That it was improperly
issued.(Sec. 13); or
b. That it was improperly
enforced; or
c. That
the
bond
is
insufficient.(Sec. 3)

3. He may move to discharge because


there
was
no
ground
for
attachment. (Sec. 1)
4. He may move to discharge on the
ground that the attachment is
excessive, but the discharge shall
be limited to the excess. (Sec. 13)
5. He may move to discharge on the
ground that the property attached
is exempt from execution, hence
exempt
from
preliminary
attachment. (Secs. 2 and 5)
6. The judgment is rendered against
the attaching creditor.(Sec.19 )
(Regalado 10th Ed.)
Section 20: Claim for Damages on
Account of Improper, Irregular or
Excessive Attachment.
An application for damages may be filed
by a party against whom the attachment
was issued on account of improper,
irregular or excessive attachment.
Q: May damages be claimed by a party
prejudiced by a wrongful attachment
even if the judgment is adverse to
him?
A: Yes, damages may be claimed by a
party
prejudiced
by
a
wrongful
attachment even if the judgment is
adverse to him. This is authorized by the
Rules. A claim, for damages may be made
on account of improper, irregular or
excessive attachment, which shall be
heard with notice to the adverse party
and his surety or sureties. (Javellana v. D.
O. Plaza Enterprises Inc., 32 SCRA 281)
When to apply for damages against the
attachment bond
1. Before trial;
2. Before appeal is perfected;
3. Before the judgment becomes
executory;

183

184
4. During the pendency of the appeal
for damages sustained during
such appeal, if the judgment of
the appellate court is favorable to
the party against whom the
attachment was issued and before
said judgment becomes executory.
ATTACHMENT
COUNTER-BOND
BOND
It is posted by the It is posted by the
attaching
party party
against
or the applicant.
whom
attachment
is
issued.
The purpose of
the
applicants
bond is to obtain
a
writ
of
preliminary
attachment.
This bond shall
answer for all the
costs which may
be adjudged to
the adverse party
and all damages
which he may
sustain
on
account of the
attachment, if the
court shall finally
adjudge that the
applicant is not
entitled.

It aims to prevent
or discharge a
preliminary
attachment.

The liability of
surety under the
applicants bond
must be enforced
by an application
after motion with
due notice has
been given to the
applicant and the
sureties and after

The sureties on
the counter-bond
are
charged
under
the
judgment
and
their liability may
be recovered after
notice
and
summary hearing
in
the
same

It secures the
payment of the
judgment which
the
applicant
may be entitled
to.

proper hearing.

action.

Section 15: Satisfaction of Judgment


out of Property attached
a. Ifjudgmentberecoveredbytheattach
ingpartyandexecutionissuethereon
,thesheriffmaycausethejudgmentto
besatisfied
outofthepropertyattached,ifitbesu
fficientforthatpurposeinthefollowin
gmanner;
b. By paying to thejudgmentobligee
the
proceedsofallsalesofperishableorot
her
propertysoldinpursuanceoftheorde
rofthecourt,orsomuchas
shallbenecessary
tosatisfythejudgment;
c. Ifanybalanceremainsdue,bysellings
omuch
oftheproperty,realorpersonal,asma
ybenecessarytosatisfythebalance,if
enoughforthatpurposeremaininthe
sheriff'shands,orinthoseoftheclerk
ofthecourt;
d. Bycollectingfromallpersonshavingi
ntheirpossessioncreditsbelonging
tothejudgmentobligor,orowingdebt
stothelatteratthetimeoftheattachm
entofsuch
creditsordebts,theamountofsuchcr
editsanddebtsasdeterminebytheco
urtintheaction,and
statedinthejudgment,andpayingth
eproceedsofsuchcollectionovertoth
ejudgmentoblige.
Note:
Thesheriffshall:
1. Makeareturninwritingtothecourtofhis
proceedingsunderthissection;and
2. Furnishthepartieswithcopies.

RULE 58
PRELIMINARY INJUNCTION

Preliminary Injunction
Anorderrequiringapartyoracourt,agencyor
a
persontorefrainfromaparticularactoracts.I
tmaybegrantedatanystageofanactionorpro
ceedingpriortothejudgmentorfinalorder.
A writ of preliminary injunction is an
ancillary or preventive remedy that may
only be resorted to by a litigant to protect
or preserve his rights or interests and for
no other purpose during the pendency of
the principal action. The dismissal of the
principal action thus results in the denial
of the prayer for the issuance of the writ
(DFA vs. Falcon, 1 September 2010)
A writ of preliminary injunction may
be issued upon the concurrence of the
following essential requisites, to wit:
a. the invasion of right sought to be
protected
is
material
and
substantial;
b. the right of the complainant is
clear and unmistakable; and
c. there is an urgent and paramount
necessity for the writ to prevent
serious damage.
While a clear showing of the right is
necessary, its existence need not be
conclusively established. Hence, to be
entitled to the writ, it is sufficient that the
complainant shows that he has an
ostensible right to the final relief prayed
for in his complaint (Lukand vs Pagbiilao
Development Corp. 10 March 2014).
PreliminaryMandatoryInjunction
Anorderrequiringapartyoracourt,agencyor
a persontoperformaparticularactoracts.
Itmaybegrantedatanystageofanactionorpr
oceedingpriortothejudgmentorfinalorder.
TemporaryRestrainingOrder

An order to maintainthestatus quountil


the
determinationoftheprayerforawritofprelimi
naryinjunction
ObjectoftheIssuanceofPreliminaryInjun
ction
Topreservethestatusquo
untilthemeritsofthecasecanbeheard.
Status Quo
The last actual peaceable uncontested
status that preceded the controversy.
Q: Differentiate a TRO from a status
quo order (BAR 2006)
A: A status quo order (SQO) is more in
the nature of a cease and desist order,
since it does not direct the doing or
undoing of acts, as in the case of
prohibitory or mandatory injunctive relief.
A TRO is only good for 20 days if issued
by the RTC; 60 days if issued by the CA;
until further notice if issued by the SC.
The SQO is without any prescriptive
period and may be issued without a bond.
A TRO dies a natural death after the
allowable period; the SQO does not.
A TRO is provisional. SQO lasts until
revoked. A TRO is not extendible, but the
SQO may be subject to agreement of the
parties.
PRELIMINARY INJUNCTION

TE
MP
OR
ARY
RES
TRA
INI
NG
OR
DE

185

186

An order granted at any stage of


an action or proceeding prior to
the judgment, requiring a person,
a party or a court or agency or to
refrain from or to perform
particular acts.

A writ of preliminary injunction


cannot be issued ex parte. There
must be notice and hearing.

R
An
orde
r to
mai
ntai
n
the
stat
us
quo
unti
l the
dete
rmi
nati
on
of
the
pray
er
for a
writ
of
preli
min
ary
inju
ncti
on.
It
may
be
gra
nted
ex
part
e if
it
shal
l
app
ear
that
grea
t or
irre
par

able
inju
ry
wou
ld
resu
lt to
the
appl
ican
t
befo
re
the
mat
ter
can
be
hear
d on
noti
ce.
It may exceed 20 days.
Note:
WPI
issued
bytrial
court,CA,SBorCTAagainstalowerc
ourt,board,officer,
orquasijudicialagencyshalldecidethemain
caseorpetitionwithin6monthsfrom
theissuanceofthewrit.
(AsamendedbyA.M.No.07-7-12SC, December12,2007.)

It
doe
s
not
exce
ed
20
days
.
Note
s:
1.
TRO
issu
ed
by
CA
or a
me
mbe
r,
effe
ctiv
e for

60
days
.
2.
TRO
issu
ed
by
SC
or a
me
mbe
r,
effe
ctiv
e
unti
l
furt
her
orde
rs.
INJUNCTION
Generally directed
against any person
not
exercising
judicial,
quasijudicial
or
ministerial
functions.
Does not involve
the jurisdiction of
the court

PROHIBITION
Directed against a
court, tribunal or
person
exercising
judicial powers.

May be main action


itself
or
just
provisional remedy
in the main action.

Always
action.

May be on the
ground that the
court
against
whom the writ is
sought
acted
without
or
in
excess
of
jurisdiction.
a

1. Invasion of the right is material


and substantial;
2. Right of the complainant is clear
and unmistakable; and
3. Urgent and paramount necessity
for the writ to prevent serious
damages.
There must be a right in esse or the
existence of a right to be protected and
the act against which the injunction is to
be directed is a violation of such right
(Idolor v. Court of Appeals, G.R. No.
141853, 2001, Gustilo v. Real, A.M. No.
MTJ-00-1250, 2001).
Injunction may be an action itself,
brought specifically to restrain or
command the performance of an act. As
an action, it is immediately executory
under Sec. 4, Rule 39.
Kinds
1.
2.
3.
4.

of Injunction
Preliminary Injunction
Final Injunction
Prohibitory Injunction
Mandatory Injunction

Preliminary
Injunction
The writ secured
before the finality
of the judgment.

Final Injunction
Issued
as
a
judgment making
the
injunction
permanent.

main

Requisites:

187

188
Prohibitory
Injunction
To prevent a person
from
the
performance of a
particular act.

Mandatory
Injunction
To require a person
to
perform
a
particular act.

Section 2: Who may grant preliminary


injunction:
1. The court where the action is pending
2. Court of Appeals, or any of its justices
3. Supreme Court, or any of its justices

The act has not yet


been performed.

The act has already


been
performed
and this act has
violated the rights
of another.

Section 3: Grounds for Issuance of


Preliminary Injunction
1. Plaintiff is entitled to relief sought
which consists in restraining or
requiring the performance of acts
(latter is preliminary mandatory
injunction);
2. The commission of acts or nonperformance during pendency of
litigation
would
probably
work
injustice to the plaintiff;
3. Defendant is doing or about to do an
act
violating
plaintiffs
rights
respecting the subject of the action
and tending to render judgment
ineffectual.

The status quo is


preserved.

The status quo is


restored.

Section 1: When Writ May Be Issued.


Thewritmaybegrantedatanystageofthe
proceeding
prior
to
thejudgmentorfinalorder

Notes:
1. Independent action merely to obtain
preliminary injunction is not allowed.
2. Substantive relief must be sought as
well as a clear and positive right
calling for judicial protection must be
shown.
Requirements for the Grant of a
Preliminary Injunction or TRO:
1. Verified application shows the
facts entitling the applicant to the
relief demanded.
2. Bond unless exempted by the
court.

The applicant files a bond with the


court where
the
action or
proceeding is pending in an
amount to be fixed by the court to
the effect that the applicant will
pay to such party or person all
damages which he may sustain by
reason of the injunction or TRO.
If the court should finally decide
that the applicant was not entitled
thereto.
Upon approval of the requisite
bond, a writ of preliminary
injunction shall be issued.
3. Notice of Raffle When an
application
for
a
writ
of
preliminary injunction or TRO is
included in a complaint or any
initiatory pleading.
If filed in a multiple-sala court,
shall be raffled only after notice to
and in the presence of the adverse
party or the person to be enjoined.
In any event, notice shall be
preceded, or contemporaneously
accompanied by:

a. Service of summons,
b. Together with a copy of the
complaint
or
initiatory
pleading;
c. The applicants affidavit
and
d. Bond, upon the adverse
party in the Philippines.
Prior or contemporaneous service of
summons shall not apply in the following
cases:
a. The summons could not be served
personally or by substituted
service despite diligent efforts.
b. The defendant is a resident of the
Philippines Temporarily absent
therefrom.
c. Defendant is a Non-resident of the
Philippines.
SUMMARY HEARING
General Rule: For TRO, the application
shall thereafter be acted upon only after
all the parties are heard in a summary
hearing which shall be:
a. Conducted within 24 hours
b. After the sheriffs return of service
and/or the records are received by the
branch
c. Selected by raffle and
d. To which the records shall be
transmitted immediately (Riguera,
2013).
Note: The period within which to conduct
summary hearing is 24 hours after the
records are transmitted to the branch to
which it is raffled. (Riguera 2013, citing
Bagong West Kabulusan 1 Neighborhood
Association v. Lerma, A.M. No. RTJ-051904, 2005).
Exceptions: TRO may be issued ex parte
or without summary hearing:
a. If it shall appear from the facts shown
by affidavits or by the verified
application
that
GREAT
OR

IRREPARABLE INJURY would result


to the applicant before the matter can
be heard on notice, in which case the
court to which the application for
preliminary injunction was made may
issue a TRO ex parte effective for only
20 days from service on the party or
person sought to be enjoined.
The court must order the applicant to
show cause within the 20-day period
why the injunction should not be
granted, and the court shall also
determine whether or not the
preliminary
injunction
shall
be
granted; or
b. If the matter is of EXTREME
URGENCY and the applicant will
suffer
GRAVE
INJUSTICE
AND
IRREPARABLE INJURY, in which case
the executive judge of a multiple-sala
court or the presiding judge of a
single-sala court may issue a TRO ex
parte effective for only 72 hours from
issuance but he shall immediately
comply with the rule on SCAB. The
judge before whom the case is
pending shall conduct a summary
hearing within 72 hours to determine
whether or not the TRO shall be
extended until the application for
preliminary injunction can be heard.
Note:
TRO under exception is
1. Non- extendible while
2. May be extended for 20 days, inclusive
of the initial 72-hour period.
SECTION 5. Duration of A TRO
General
Rule:
Periodnotexceeding20daysfromservicetoth
e partysoughttobeenjoined.
Exceptions:
Ifthematteris:
a. Extremeurgency;and

189

190
b. Theapplicantwill
suffer
graveinjusticeandirreparableinjury
,
Thejudgemayissueexparteatemporaryrest
raining order:
a. Itshallbeeffective foronly72hours;
b. HeshallimmediatelycomplywithSectio
n4regardingserviceofsummonsandacc
ompanyingdocument;and
c. Heshallconductasummaryhearingwith
insaid72hourstodeterminewhetherthe
restrainingordershallbeextendeduntilt
heapplicationforthepreliminaryinjunct
ioncanbeheard.
Section 6: Grounds for objection to or
for the Dissolution of Injunction for
Restraining Order.
1. Application is insufficient;
2. Other grounds upon affidavits of the
party or person enjoined
3. Applicants bond is insufficient. Refer
to Rule 58, Sec. 7
DOCTRINE
OF
COMPARATIVE
INCONVENIENCE OR DAMAGE
The injunction or restraining order may
be denied or dissolved, if it appears after
hearing that although the applicant is
entitled to the injunction or restraining
order, the issuance or continuance
thereof, as the case may be, would cause
irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may
suffer, and the former files a bond in an
amount fixed by the court conditioned
that he will pay all damages which the
applicant may suffer by the denial or the
dissolution
of
the
injunction
or
restraining order.
In relation to RA No. 8975, Ban on
Issuance of TRO or Writ of Injunction
in
cases
involving
Government
Infrastructure Projects

Nocourt,excepttheSupremeCourt,shalliss
ueanytemporaryrestrainingorder,prelimin
aryinjunctionorpreliminarymandatoryinju
nctionagainst
thegovernment,oranyofitssubdivisions,offi
cialsoranypersonorentity,whetherpublicor
privateactingunderthegovernmentdirectio
n,torestrain,prohibitorcompelthefollowing
acts:
a. Acquisition,clearanceanddevelopm
entoftheright-of-wayand/or
siteorlocationofanynationalgovern
mentproject;
b. Biddingorawardingofcontract/proj
ectof the national government
asdefined underSection2hereof;
c. Commencementprosecution,execu
tion,implementation,operationofan
ysuchcontractorproject;
d. Terminationorrescissionofanysuch
contract/project;and
e. The
undertakingorauthorizationofanyo
therlawfulactivitynecessaryforsuch
contract/project.
Thisprohibitionshallapplyinallcases,dispu
tesorcontroversiesinstitutedbyaprivatepar
ty,includingbutnot
limitedtocasesfiledbybiddersorthoseclaimi
ngtohaverightsthroughsuchbiddersinvolvi
ngsuchcontract/project.
Thisprohibitionshallnotapplywhenthe
matterisofextremeurgencyinvolvingaconst
itutionalissue,suchthatunlessatemporary
restrainingorderisissued,graveinjusticean
dirreparableinjurywillarise.
Theapplicantshallfileabond,inanamountto
befixedby
thecourt,whichbondshallaccruein
favor
ofthegovernmentifthecourtshouldfinallyde
cidethattheapplicantwasnotentitledtother
eliefsought.
Ifafterduehearingthecourtfinds
that
theawardofthecontractisnullandvoid,theco

urtmay,ifappropriateunderthecircumstan
ces,awardthecontracttothequalifiedandwi
nningbidderororderarebiddingofthe
same,withoutprejudicetoanyliabilitythatth
eguiltypartymayincurunderexistinglaws.
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO
ATTACHMENT
PRINCIPLE
OF
PRIOR
CONTEMPORARY JURISDICTION
When
an
application
for
a
writofpreliminaryinjunction
or
a
temporary restraining order isincludedin
acomplaintor
anyinitiatorypleading,thecase,iffiledinamu
ltiplesalacourt,shallberaffledonlyafterNOTICEt
o
andINTHEPRESENCEoftheadversepartyor
thepersontobeenjoined. Refer to Rule
58,Sec.4(c).
Thereisdifferenceontheapplicationofthepri
ncipleinpreliminaryattachmentandprelimi
naryinjunction.
Inattachment,theprincipleappliesonlyinth
eimplementationofthewrit,while
inapplications
forinjunctionorTRO,thisprincipleappliesbe
foretheraffleandissuanceofthewritsorTRO.
GeneralRule:PreliminaryInjunctionwillno
tissuetoprotectcontingentorfuturerights;ri
ghtswhicharenotclear.
Exception:Itmayhoweverbeissuedtopreve
ntfuturewrongs
thoughnoright
yethasbeenviolated.
Example:Topreventthehusbandfrominterf
eringwifesmanagementpendingdesignatio
noftheadministrator.

RULE 59
RECEIVERSHIP
Receivership
It is a provisional or ancillary remedy
wherein the court appoints a receiver to
receive and preserve the property or fund
in the litigation pendente lite, when it
does not seem reasonable to the court
that either part should hold it (PrimerReviewer on Remedial Law, Manuel R.
Riguera).
A receiver is a person appointed by the
court in behalf of all the parties to an
action for the purpose of preserving the
property involved in the suit and to
protect the rights of all the parties under
the direction of the court (Mallari v. CA,
G.R. No. L-26467, July 15, 1981).
Before appointing a receiver, courts
should consider:
a. Whether or not the injury
resulting from such appointment
would probably be greater than
the injury ensuing if the status
quo is left undisturbed; and
b. Whether or not the appointment
will imperil the interest of others
whose rights deserve as much a
consideration from the court as
those of the person requesting for
receivership. (Tantano vs. EspinaCaboverde 29 July 2013)
Section 1.Cases When Receiver May Be
Appointed.
The Court may appoint a receiver in the
following cases:
a. Applicant has an Interest in the
property or fund subject of the
proceeding and such property is in
danger of being lost, removed, or
materially
injured
unless
a
receiver is appointed;

191

192
b. In foreclosure of mortgage, when
the property is in Danger of being
dissipated or materially injured,
and that its value is probably
insufficient to discharge the
mortgage debt or that it has been
agreed upon by the parties;
c. After judgment, to Preserve the
property during the pendency of
an appeal or to dispose of it
according to the judgment or to
aid execution;
d. When appointment of receiver is
the most Convenient and feasible
means
of
preserving,
administering or disposing of the
property in litigation.
Note: The
litigation.

property

must

be

under

Requisites:
1. Property or fund subject of
receivership is under litigation
2. Appointment
of
receiver
is
warranted under Sec. 1 Rule 59
3. Applicant files a sufficient bond to
the effect that the applicant will
pay the receiver all damages he
may sustain by reason of the
appointment
in
case
such
applicant shall have procured the
appointment without sufficient
cause. Refer to Rule 59, Sec. 2.
4. No counterbond filed by the
adverse party to deny the
application for receivership. Refer
to Rule 59, Sec. 3.
5. Receiver shall be:
a. Sworn to perform his duties
faithfully, and
b. Shall file a bond to the effect
that he will faithfully discharge
his duties in the action or
proceeding and
c. Obey the orders of the court.
6. Service of copies of bonds shall be
made by the party filing the same

to each interested party who may


except to its sufficiency, or of the
surety or sureties thereon.
Requisites before Issuance of an Order:
1. Verified application and such
other proof as the court may
require that the applicant has an
interest in property or fund which
is the subject of the action or
proceeding and such property or
fund is in danger of being lost,
removed, or materially injured
unless a receiver is appointed to
administer
and
preserve
it
(Riguera,
Primer-Reviewer
on
Remedial Law).
2. Bond an applicants bond is
required:
a. It is an executed to the
party against whom the
application presented,
b. In an amount fixed by
court,
c. To the effect that the
application will pay such
party all damages he may
sustain by reason of the
appointment
of
such
receiver (Riguera, PrimerReviewer
on
Remedial
Law).
3. Notice and Hearing is conducted
to determine that:
a. The applicant has interest
in the property or fund,
and
b. In danger of being lost,
removed
or
materially
injured, and
c. Appointment of a receiver
is the most convenient and
feasible
means
of
preserving, administering
or disposing the property
in litigation.
Where to file:

During the pendency of the appeal, the


appellate court, may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin
and the receiver appointed to be subject
to the control of said court.
GENERAL POWERS OF A RECEIVER
1. Bring and defend, in such capacity,
actions in his own name;
2. Take and keep possession of the
property in controversy;
3. Receive rents;
4. Collect debts due to himself as
receiver or to the fund, property,
estate, person, or corporation of which
he is the receiver;
5. Compound for and compromise the
same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property
that shall remain among the persons
legally entitled to receive the same;
9. Generally to do such acts respecting
the property as the court may
authorize; and
10. Invest funds in his hands, only by
order of the court upon the written
consent of all the parties.
Note: Section 30 of the General Banking
Law of 2000 (RA 8791) states that the
appointment of a receiver shall be vested
exclusively with the monetary board. The
term exclusively connotes that only the
Monetary Board can resolve the issue of
whether a bank is to be placed under
receivership and, upon an affirmative
finding, it also has authority to appoint a
receiver (Koruga v Arcenas; G.R. No.
168332; 2009).
Two Kinds of Bonds
1. Applicantsbond.

Sec. 2 of Rule 59 is very clear in that


before issuing the order appointing a
receiver the court shall require the
applicant to file a bond executed to the
party against whom the applicant is
presented. The filing of an applicants
bond is required at all times (Tantano vs.
Espina-Caboverde 29 July 2013).
2. Receiversbond
On the other hand, the requirement of a
receivers bond rests upon the discretion
of court. Sec. 2 of Rule 59 clearly states
that the court may, in its discretion, at
any time after appointment, require an
additional bond as further security for
such damages (Tantano vs. EspinaCaboverde 29 July 2013).
Termination Of Receivership
Receivership may be denied or lifted:
a. If the appointment sought or
granted is without sufficient
cause.
b. Adverse party files a sufficient
bond to answer for damages (Sec.
3);
c. Bond posted by the applicant for
grant
of
receivership
is
insufficient.(Sec. 5); or
d. Bond of the receiver is insufficient
(Sec. 5).

RULE 60
REPLEVIN
Section 1: When May Writ Be Issued.
Replevin is a provisional remedy wherein
a party praying for the recovery of
possession of personal property may
apply for an order for the delivery of such
property to him.
It may also refer to the main action for the
recovery of personal property wrongfully
detained by the defendant (Riguera 2013).

193

194

Notes:
1. Principal Action: Recovery of
possession of personal property
2. Provisional Remedy: Replevin
Subject Matter: Personal Property
The contracting parties may validly
stipulate that a real property be
considered as personal. After agreeing to
such stipulation, they are consequently
estopped from claiming otherwise. Under
the principle of estoppel, a party to a
contract is ordinarily precluded from
denying the truth of any material fact
found therein. The Court upheld the
intention of the parties to treat a house as
personal property because it had been
made the subject of a chattel mortgage.
(Sergs Product vs. PCI Leasing & Finance
Co. 22 August 2000)
Note: The applicant seeking immediate
possession need not be the holder of legal
title. It is sufficient that he is entitled to
the possession thereof.
When May Writ Be Issued
Replevin may be applied for and issued at
the commencement of the action or at any
time before answer.
Note: Once an answer has been filed, the
replevin is no longer available and the
remedy would be to move for preliminary
attachment under Sec. 1(c) Rule 57.
(Riguera 2013)
Requisites for the Issuance of a Writ of
Replevin
1. The applicant must show by his own
affidavit or that of some other person
who personally knows the facts:
a. That the applicant is entitled to
the possession of the subject
property

b. That the property is wrongfully


detained by the adverse party
c. That the property has not been
distrained or taken for a tax
assessment or a fine, or seized
under a writ of execution or
preliminary
attachment,
or
otherwise placed in custodia
legis, or if so seized, that it is
exempt from such seizure or
custody.
d. The actual market value of the
property
2. Bond. The applicant must give a bond,
executed to the adverse party in
double the value of the property as
stated in the affidavit for the return of
the property if such return be
adjudged, and for the payment to the
adverse party of such sum as he may
recover from the applicant in the
action. (Riguera 2013)
Requisites for Recovery of Replevin
Bond:
1. Application showing right to damage;
2. Notice given to plaintiff and his surety;
3. Hearing in case recovery is opposed;
4. Award for damages must be included
in judgment of the court (Sec. 20,
Rule 57).
Adverse party can seek the return of
the property
If within 5 days from taking of the
property by the sheriff, the adverse party
decides to have the property back, he may
require the return by:
1. Filing with the court where the action
is pending a redelivery bond executed
to the applicant, in double the value
of the property conditioned upon the
payment of sum as may be recovered
against the adverse party; and
2. By serving a copy of the bond on the
applicant.

AFFIDAVIT AND BOND; REDELIVERY


BOND
Procedurefortheapplicationforreplevin
1. A party praying for theremedy
ofreplevin
mustfileanapplicationforawritofrep
levin,atthecommencementoftheact
ionoratanytimebeforethedefendant
answer.
2. Theapplication
mustcontainhisownaffidavitorthat
ofsomeotherpersonwhopersonallyk
nowsthefacts:
a. That
the
applicant
istheowner
ofthe
propertyorisentitledtoitspo
ssession.
b. Thattheadverse
party
wrongfully
detains
the
property.
c. That
thepropertyhasnotbeendist
rainedortakenfortaxassess
mentorafinepursuant
tolaw,orseizedunderawritof
executionorpreliminaryatta
chmentorotherwiseplacedi
ncustodialegis.
d. Theactualmarketvalueofthe
property
3. Theapplicantmustgiveabond,execu
tedtotheadversepartyanddoublethe
valueoftheproperty.
Which Court has jurisdiction:
MTC or RTC depending on the value of
thepropertyandnotthevalueofthebond.
Section 3: Order.
Whenthe
court
approves
the
application,the
courtshallissueanorderandthecorrespondi
ng
writofreplevin
describing
thepropertyalleged
tobewrongfullydetained.

Section 4: Sheriffs Duty in the


Implementation of the Writ, When
Property Us Claimed by Third Party.
1. Upon receipt of the court order,
the sheriff must:
a. Serve a copy of the order
on the adverse party;
b. With
a
copy
of
the
application;
c. Affidavit; and
d. Bond
2. Take custody of the property;
3. He must keep the property it in a
secure place
Note: The proceedings where property
claimed by third person in this rule is the
same as the procedure in Rule 57.

RULE 61
SUPPORT PENDENTE LITE
Support Pendente Lite
It is the support provided to a party
during the pendency of the litigation.
Principal Action:
Provisional

Action for

support

Remedy: Support Pendente Lite


Section 1: Application.
At the commencement of the proper
action or proceeding, or at any time prior
to the judgment or final order, stating the
grounds for the claim and financial
conditions of both parties, accompanied
by affidavits and other documents in
support thereof.
Section 2: Comment.
This section now requires the filing within
the extended period of 5 days of a
comment,
instead
of
an
answer
(Regalado).

195

196
Section 5: Enforcement of the Order.
If the adverse party fails to comply with
the order, the court, shall motu proprio or
upon motion issue an order of execution.
ACTIONS
WHERE
REMEDY
IS
AVAILABLE:
1. Actions for support
2. In criminal actions where the civil
liability includes support for the
offspring as a consequence of the
crime and the civil aspect thereof
has not been waived, reserved or
instituted prior to its filing.
Q: What courts may grant Support
Pendente Lite?
A:
CIVIL CASES
FAMILY COURT may grant support
pendente lite since an action for support
falls within the jurisidction of the family
court.

action.

Relief)

There are ten (10) such special civil


actions, to wit:
1. Quo warranto;
2. Contempt;
3. Foreclosure
of
real
estate
mortgage;
4. Interpleader;
5. Declaratory relief and similar
remedies;
6. Certiorari,
prohibition
and
mandamus;
7. Review of decisions of COMELEC
and COA (riguera 2013)
8. Expropriation;
9. Ejectment (Forcible entry and
Unlawful Detainer)
10. Partition(Riguera,
Primer
on
Remedial Law,Vol.1 ,2015)

Venue
The venue of Special Civil Actions is
THE CA MAY ALSO GRANT SUPPORT PENDENTE LITE WHERE PROPER IN AN APPEALED
governed by the general rules on venue,
CASE.(Riguera, Primer on Remedial Law,Vol. 1, 2015)
EXCEPT as otherwise indicated in the
particular rule for said Special Civil
Action. (Ex. Quo Warranto under Sec. 7,
SPECIAL CIVIL ACTION
Rule 66).
NATURE OF SPECIAL CIVIL ACTION
A special civil action, which aside from
being governed by the rules for ordinary
civil actions, is subject to specific rules to
provide it (Riguera, Primer Reviewer on
Remedial Law).
ORDINARY
CIVIL ACTION
Governed
by
the rules on
ordinary
civil
action;
Every Ordinary
Civil
Action
must be based
on a cause of

SPECIAL CIVIL
ACTION
Governed
by
the
rules on ordinary
civil
actions
and
specific rules;
Not every Special
Civil Action is based
on a cause of action.
(ex.
Declaratory

Special Civil Actions are governed by the


rules on Ordinary Civil Actions, subject
to the specific rules prescribed for a
particular Special Civil Action. (Sec. 3-a,
Rule 1)
By virtue of Section 3 of Rule 1, the
provisions of Rule 16 on motion to
dismiss are applicable in Special Civil
Actions (National Power Corp. v. Valera, L15295, Nov. 30, 1961).

RULE 62
INTERPLEADER

Interpleader
A special civil action filed by a person
against whom two conflicting claims are
made upon the same subject matter and
over which he claims no interest, to
compel the claimants to interplead and to
litigate their conflicting claims among
themselves.

laches. Where a party was aware of the


dispute and in fact had been sued by one
of the claimants and the former did not
implead the other claimant, he can no
longer invoke the remedy of interpleader.
(Wack wack golf & Country Club v. Lee
Won, G.R. No. L-23851, March 26, 1976)
(Regalado)

It is also a special civil remedy whereby a


person, who has a property in his
possession or an obligation to perform,
either wholly or partially, but who claims
no interest in the subject, or whose
interest in whole or in part, is not
disputed by others, goes to court and
asks that conflicting claimants to the
property or obligation be required to
litigate among themselves in order to
determine finally who is entitled to the
same(Alvarez v. Commonwealth, G.R. No.
45315, Feb. 25, 1938)

Section 4: Grounds to Dismiss an


Action for InterpleaderImpropriety of
the interpleader action.
1. Other appropriate grounds under
Rule 16.

Breach of Obligations, Not covered


Interpleader cannot be availed of to
resolve
the
issue
of
breach
of
undertakings made by defendants which
issues should be resolved in an ordinary
civil action for specific performance or
other relief (Beltran v. PHHC, L-25138,
Aug. 28, 1969).
Requisites of Interpleader:
1. The plaintiff claims no interest in the
subject matter or his claim thereto is
not disputed;
2. The parties to be interpleaded must
make effective claims;
3. There must be at least two or more
conflicting claims; and
4. The subject matter must be one and
the same.
When to file
An action for interpleader must be filed
within a reasonable time after a dispute
has arisen, otherwise it may be barred by

Noter: the period to file an answer shall


be tolled, and if the motion to dismiss is
denied, the movant may file his answer
within the remaining period, but which
shall not be less than 5 days reckoned
from notice of denial. This rule is the
same with sec. 5, Rule 12 and Sec. 4,
Rule 16.
Period to File an Answer:
Each claimant shall file his answer
setting forth his claim within 15 days
from service of summons.

RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
Declaratory Relief
It is a special civil action brought by a
person interested under a deed, will,
contract or other written instrument,
whose rights are affected by a statute,
executive order or regulation, ordinance,
or any other governmental regulation to
determine any question of construction
or validity arising, and for a declaration
of his rights or duties, thereunder.
Actions under Rule 63
1. Petition for declaratory relief

197

198
2. Similar remedies, specifically:
a. Action for reformation of an
instrument
b. Action to quiet title
c. Action to consolidate ownership
over the real property by the
vendee a retro pursuant to Art.
1607 of the Civil Code.
Who may file the action
All persons which have or claim any
interest which would be affected by the
declaration shall be made parties. No
declaration shall prejudice the rights of
persons not parties to the action, except
as otherwise provided in the Rules.
When to file
It should be brought before breach or
violation of the contract or written
instrument, or of the statute, executive
order,
regulation,
ordinance,
or
governmental regulation (Sec.1). Where
the contract has already been breached
prior to the filing of an action for
declaratory relief, the court can no longer
assume jurisdiction over the action. Any
judgment for declaratory relief is a
nullity.
(Riguera 2013, citing Tambunting vs.
Baello, 16 September 2005).
Where to file the action
Distinction should be made between the
first and second paragraphs of Sec. 1.

The first paragraph describes the


general circumstances in which a person
May file a petition for declaratory relief,
and as the provision states, it may be
brought before the appropriate RTC.
However, second paragraph refers to
remedies
considered
similar
to
declaratory relief because they also result

in adjudication of the legal rights of the


litigants, often without the need of
execution to carry the judgment into
effect. Hence, whether RTC or MTC has
jurisdiction over such actions as
identified in the second paragraph
depends on the value of the property
involved. (Malana vs. Tappa, G.R. No.
181303, September 17, 2009)
An action for declaratory relief is an
of
pecuniary
actionincapable
estimation. Hence, any action for
declaratory relief shall be filed with the
RTC (Riguera 2013, citing Ombudsman
vs. Ibay,G.R. No.137538, 3 Sept. 2001).
The non-joinder of parties in declaratory
relief proceeding is NOT a jurisdictional
defect for Sec.2, Rule 63 provides that
the declaration/ declaratory judgment
shall not prejudice their interests. Since
the judgment in a declaratory relief
case
is
merely
declaratory
and
not executory, the rule on compulsory
joinder of indispensable parties does
not apply.
Requisites of actions for Declaratory
Relief:
1. The subject matter of the
controversy must be a deed, will,
contract
or
other
written
instrument, statute, executive
order or regulation, or ordinance;
2. The terms of said documents and
the validity thereof are doubtful
and require judicial construction;
3. There must have been no breach
of the documents in question;
4. There must be an actual
justiciable controversy or the
ripening seeds of one between
persons whose interests are
adverse;
5. The issue must be ripe for
judicial determination; and

6. Adequate relief is not available


through other means or other
forms of action or proceeding
(Republic vs. Roque 24 September
2013)
Section 5: When Court may refuse to
make Judicial Declaration
1. The decision will not terminate
the controversy or uncertainty
giving rise to theaction; or
2. The declaration or construction is
not necessary and proper under
thecircumstances.
Note:
This provision does NOT apply in
actions for reformation of an instrument
to quiet title of real property or remove
clouds therefrom, or to consolidate
ownership under Art. 1607 of the Civil
Code.
CONVERSION TO ORDINARY ACTION
When is Conversion Proper:
If before the final termination of the
case, a breach or violation of the
instrument or statute occurs, then the
same may be converted into an ordinary
action.
If there has been a breach of statute
BEFORE the filing of the action, the
remedy of declaratory relief CANNOT be
availed of.
The law does not require that there
shall be an actual pending case. It is
sufficient that there is a breach of the
law, an actionable violation to bar a
complaint
for
declaratory
relief
(Borja v. Villadolid, L-1897, November
28, 1949).

However, if the petition has farreaching


implications
and
raises
questions that should be resolved, the
Supreme
Court
may
treat
the
petition as one for prohibition or
mandamus
and
take
cognizance
thereof (Riguera 2013, citing Alliance
of Govt Workers vs. Minister of Labor
and Employment, 124 SCRA 7).
Proceedings considered as Similar
Remedies
1. An action for the reformation
of an instrument;
2. An action to quiet title to real
property
or
remove
clouds
therefrom; and
3. An action to consolidate ownership
under Article 1607 of the NCC
(Section 1, 2nd par.).
These three remedies are considered
similar to declaratory relief because
they also result in the adjudication of
the legal rights of the litigants, often
without the need of execution to carry
the judgment into effect.
A procedural distinction between the
two remedies is that in actions
falling under the second paragraph,
the court is BOUND to render
judgment, whereas in actions falling
under the first paragraph, the court
MAY REFUSE to exercise the power to
declare rights and to construe
instruments.
JURISDICTION
Action for Reformation RTC
Action for Quieting of Title
Generally, RTC.However, where the
principal relief sought is the recovery of
possession or title to real property or
interest therein, the action would be a

199

200
real action and jurisdiction would
depend on the assessed value of the
property.
Action to Consolidate
Ownership
over Real Property MTC or RTC,
depending on the assessed value of
the subject real property(Riguera
2013)

RULE 64
REVIEW OF JUDGMENTS AND
FINAL ORDERS OR
RESOLUTIONS OF THE
COMMISSION ON ELECTION
AND COMMISSION ON AUDIT
Basis:
Unless otherwise provided by the
Constitution or by law, any decision,
order or ruling of each commission may
be brought to the Supreme Court on
certiorari by the aggrievedparty within
30 days from receipt of a copy
thereof. (Sec. 7, Art. XI, 1987
Constitution)
Section 2: Mode of Review
Petition for certiorari under Rule 65.
However, the period for filing a petition
for certiorari assailing the judgment of
the COMELEC and COA is shorter than
that provided for under Rule 65.
Under Rule 65, the petition for certiorari
shall befiled not later than 60 days from
notice of judgment or from notice of
denial of a motion forreconsideration or
motion for new trial whereas Rule 64
provides that the petition shall be filed
within 30 days only.
However, review of judgment, final
order or resolution of the Civil Service
Commission is not covered by this rule
but by Rule 43 through a petition for

review to the CA pursuant to R.A.


7902.
RULE 64
Directed only to the
judgments,
final
orders,
or
resolutions of the
COMELEC and the
COA
Must be filed within
30 days from notice
of the judgment or
resolution.
Note: Fresh period
Rule does not apply.
If MR is denied, the
aggrieved
party
may file the petition
within
the
remaining
period
but which shall not
be less than 5 days.

RULE 65
Directed to any
tribunal, board,
or
officer
exercising judicial
or quasi-judicial
functions
Must
be
filed
within 60 days
from notice of the
judgment
or
resolution.
If MR is denied,
the
aggrieved
party will have
another 60 days
counted from the
notice of the denial
within which to file
the petition.

The filing of a motion for reconsideration


is mandatory because the mode by which
a decision, order or ruling of the
COMELEC en banc may be elevated to the
Supreme Court is by the special civil
action of certiorari under Rule 64 of the
Rules of Civil Procedure.
It is settled that the filing of a motion for
reconsideration of the order, resolution or
decision of the tribunal, board or office is,
subject to well-recognized exceptions, a
condition sine qua non to the institution
of a special civil action for certiorari. The
rationale therefore is that the law intends
to afford the tribunal, board or office an
opportunity to rectify the errors and
mistakes it may have lapsed into before
resort to the courts of justice can be had.
(Esteves vs. Sarmiento 11 November 2008)

RULE 65

CERTIORARI, PROHIBITION
AND MANDAMUS
CERTIORARI
An extraordinary remedy by which an
aggrieved person prays for a judgment
annulling or modifying the proceedings of
a tribunal, board or officer exercising
judicial, quasi-judicial functions on the
ground that such tribunal, board or
officer has acted without or in excess
of jurisdiction, or with grave abuse of
discretionamounting to lack or excess of
jurisdiction (Sec.1).
An aggrieved party under Section 1, Rule
65 of the Rules of Court is one who was a
party to the original proceedings that gave
rise to the original action for certiorari
under Rule 65.
Thus, a person not a party to the
proceedings in the trial court or in the CA
cannot maintain an action for certiorari
in the Supreme Court to have the
judgment reviewed. Stated differently, if a
petition for certiorari or prohibition is
filed by one who was not a party in the
lower court, he has no standing to
question the assailed order. (Pascual vs.
Robles 22 June 2011)
Q: Petitioner engaged the services of
KGLC law offices to pursue a civil
collection case and administrative case
against the Municipal Government of
Muria. RTC dismissed the case for failure
to prosecute. Petitioner filed a petition for
certiorari under Rule 65 of the Rules of
Court to challenge RTCs decision. Is the
petition correct?
A: No. The SC explained that under Rule
17 Sec. 3 and Rule 56 of the ROC, the
remedy against final order is appeal and
not certiorari. An appeal may be
dismissed upon motion if a party resorts

to an erroneous mode. (SPIDC v.


Municipal Govt of Muria, Mar. 16, 2016)
PROHIBITION
An extraordinary remedy by which an
aggrieved person prays for a judgment
commanding a tribunal, corporation,
board, officer or person, whether
exercising judicial, quasi-judicial or
ministerial functions, to desist from
further proceedings in an action or
matter in the ground that such
proceedings are without or in excess of
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction (Sec.2).
MANDAMUS
An extraordinary remedy commanding a
tribunal, corporation, board or person,
to do an act required to be done:
1. When
it
or
he unlawfully
neglects the performance
of
an
act
which
the
lawspecifically
enjoins as a duty, or
2. When a person unlawfully excludes
another from the use and enjoyment
of a right or office to which such
person is entitled.
Q: Petitioner filed a petition of mandamus
to compel COMELEC to implement Voter
Verified Audit Trail security feature.
COMELEC refuses arguing that the use if
this security feature will only delay in the
conduct of the elections and that it may
also be used for vote buying. May the
COMELEC
be
compelled
in
implementing the said security feature
through a writ of mandamus?
A: Yes. A petition for mandamus may be
granted and issued when an agency
unlawfully neglects the performance of
an act which the law specifically enjoins

201

202
as a duty resulting from an office.
COMELEC fails to fulfill the duty required
under the law through its inaction in
utilizing the VVPAT feature of the vote
counting machines. (Bagumbayan-VNP
Movement, Inc. et. al. v. COMELEC, Mar. 8,
2016)

CERTIORARI

PROHIBITION

This remedy is corrective


to correct usurpation of
jurisdiction.

NATURE
The remedy is preventive
and negative to restrain or
prevent
usurpation
of
jurisdiction.

Directed against an entity


or person exercising judicial
or quasi-judicial function.

AGAINST WHOM DIRECTED


Directed against an entity or Directed against an entity or
person exercising judicial, person exercising ministerial
quasi-judicial or ministerial function.
function.

Entity or person is alleged


to have acted: without
jurisdiction; in excess of
jurisdiction; or with grave
abuse
of
discretion
amounting to lack or excess
of jurisdiction.

GROUNDS
Entity or person is alleged to
have
acted:
without
jurisdiction; in excess of
jurisdiction; or with grave
abuse
of
discretion
amounting to lack or excess
of jurisdiction.

To annul or
proceeding.

PURPOSE
To have respondent desist
from further proceeding.

nullify

a. It is directed against a
tribunal, board, or officer
exercising judicial
or
quasi-judicialfunctions;
b. That such tribunal,
board, or officer has acted
without or in excess of
jurisdiction or withgrave
abuse of discretion;
c. There is no appeal nor
plain,
speedy
and
adequate remedy in the
ordinary course oflaw;
d. Petition is verified and
must allege facts with
certainty;
e.
Petition
must
be
accompanied by a certified
true copy of the judgment
copies of all pleadings and

REQUISITES
a. The petition must be
directed against atribunal,
corporation,
board
or
person exercising judicial,
quasi-judicial or ministerial
functions;
b.
The
tribunal,
corporation,
board
or
person must have acted
without or in excess of
jurisdiction or with grave
abuse
of
discretion
amounting
to
lack
of
jurisdiction;
c. There is no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law;
d. Shall be accompanied by
certified true copy of the

MANDAMUS
This remedy is affirmative or
positive (if the performance of
duty is ordered) or it is
negative (if a person is ordered
to
desist
from excluding
another from a right or office.)

Entity or person is alleged to


have unlawfully: neglected a
ministerial duty; or excluded
another from a right or office.

For respondent to:


1. Do the act recquired; and
2. To pay damages.
a. The plaintiff has a clear
legal right to the act
demanded.
b. It must be the duty of
the defendant, to perform
the act because the
same is mandated by law.
c. The defendant unlawfully
neglects the performance of
the duty enjoined by law.
d. The act to be performed is
ministerial, not discretionary.
e. There is no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law.

203

204
document relevant and a
sworn certification of nonforum shopping.

judgment or order subject of


the petition, copies of all the
pleadings and documents
pertinent thereto, and a
sworn certification against
forum shopping.

RULE 45
APPEAL BY CERTIORARI
Broad
Mode of appeal
Under the exclusive appellate jurisdiction
of the SC
Raises only questions of law

Review of the final judgments or final


orders
Must be filed within the reglamentary
period for appeal
Does not require prior MR
Stays the judgment appealed from
Petitioners and Respondents are the
original parties to the action; the court is
not to be impleaded

RULE 65
SPECIAL CIVIL ACTION FOR CERTIORARI
Limited
Original action
Under the concurrent original jurisdiction of SC,
CA and RTC
Raises the question of jurisdiction because the
court acted without or in excess of jurisdiction or
with grave abuse of discretion
May be directed against interlocutory order
May be filed not later than 60 days from notice of
judgment
As a general rule, filing of MR is a condition
precedent
Does not stay the judgment or order subject of
the petition unless an injunction has been issued
Parties are the aggrieved party against the court
or tribunals as respondents; the court or judge
whose orders or proceedings are challenged are
impleaded as public respondents

PROHIBITION

INJUNCTION

Special civil action

Ordinary action

Prohibition strikes at once to the


jurisdiction of the court

Injuction usually recognizes the jurisdiction


of the court before which the proceeding is
pending

Prohibition is directed against a


tribunal, board or officer, exercising
judicial or quasi-judicial functions

Injunction may not be directed against a


tribunal, board or officer; it may be directed
only to the parties.

MANDAMUS

INJUNCTION

Remedial

Preventive

To set in motion or compel action

To restrain motion or to enforce inaction

Motion to dismiss under Rules 16&17

Additional ground is Sec. 6, Rule 58

205

When
petition
Prohibition
and
proper:

such other is entitled, and there is no other


plain, speedy, adequate remedy in the
ordinary course of law.

for
Certiotari
Mandamus
is

Certiorari is proper when any tribunal,


board, officer, or body exercising judicial
or quasi-judicial functions has acted
without or in excess of its or his
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal,
no any plain, speedy, adequate remedy
in the ordinary course of law.
Considering the final nature of a small
claims case decision, the remedy of appeal
is not allowed, and the prevailing party
may, thus, immediately move for its
execution. Nevertheless, the proscription
on appeal in small claims cases, similar to
other proceedings where appeal is not an
available remedy, does not preclude the
aggrieved party from filing a petition for
certiorari under Rule 65 of the Rules of
Court. (A.L. Ang Network vs. Mondejar 22
January 2014)
Prohibition
is
proper
when
the
proceedings of any tribunal, corporation,
board,
officer
or
person,
whether
exercising judicial, quasi-judicial, or
ministerial functions, are without or in
excess of its or his jurisdiction, or with
grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is
no appeal, nor any other plain, speedy,
adequate remedy in the ordinary course of
law.
Mandamus is
proper
when
any
corporation,
board,
officer
or
tribunal,
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

INJUNCTIVE RELIEF
The petition shall NOT interrupt the course of
the principal case UNLESS a temporary
restraining order or a writ of preliminary
injunction has been issued against the public
respondent from further proceeding in the
case.
The public respondent shall PROCEED
WITH THE PRINCIPAL CASE WITHIN 10
DAYS FROM THE FILING OF THE PETITION
FOR CERTIORARI WITH THE HIGHER
COURT, absent a TRO or preliminary
injunction, or upon its expiration. Failure of
the public respondent to proceed may be a
ground
for
an
administrative
charge(A.M.No.07-7-12-SC).
Exceptions to Filing of Motion for
Reconsideration before filing Petition for
Certiorari
General Rule:The filing of a Motion for
Reconsideration is condition sine qua non to
the filing of a petition for certiorari, to allow
the court an opportunity to correct its
imputed errors(Riano, 2007).
Exceptions:
1. Where the order is a patent nullity;
2. Where the questions raised in the
certiorariproceeding has been duly raised
and passed by the lower court;
3. Where there is an urgent necessity for
the resolution of the question and any
furtherdelay would prejudice
the
interests of the government or of the
petitioner;
4. Where the subject matter of the action
is perishable;
5. Where under the circumstances, a motion
for reconsideration would be useless;

6. Where petitioner was deprived of due


process and there is extreme urgency
for relief;
7. Where in a criminal case, relief from
order ofarrest is urgent and the
granting of such relief by the trial
court is improbable
8. Where the proceedings in the lower
court are a nullity for lack of due
process;
9. Where the proceedings was ex parte
or in which the petitioner had no
opportunity toobject; and
10. Where the issue raised is one purely of
law or where public interest is involved
RELIEFS PETITIONER IS ENTITLED TO:

Commission
on
Elections - Election
cases involving an act or an omission of a
municipal or a regional trial court (as
amended
by
A.M.
No.
077-12-SC December 4, 2007).
There is concurrent original jurisdiction
among the SC, CA, RTC, Sandiganbayan,
and COMELEC.
UNMERITORIOUS PETITION
It is a petition which is either patently
without merit or prosecuted for delay, or if
the questions raised therein are too
unsubstantial to require consideration.

Stay the Execution of Judgment/


Final Order/ Resolution
Under this rule, the petitioner may apply
for a restraining order or a preliminary
injunction from the Supreme Court to
stay the execution of judgment or final
order or resolution sought to be reviewed.

Effect of filing

When to file petition


It is filed not later than 60 days from
notice of the judgment, order or resolution
or notice of denial of the motion for
reconsideration or new trial, if one is filed.

The Court may impose motu proprio, based


onres ipsa loquitor, other disciplinary
sanctionsor measures on erring lawyers for
patently
dilatory
and
unmeritorious
petitions for certiorari.(As amended by A.M.
No. 07-7-12-SC, December 12, 2007)

ACTIONS or OMISSIONS of MTC or


RTC IN ELECTION CASES
Where to File
Regional Trial Court, Court of
Appeals, Sandiganbayan petition
relates to an act or an omission of a
municipal trial court
or
of
a
corporation, a board, an officer or a
person
Court of Appeals - petition involves an
act or an omission of a quasi judicial
agency unless otherwise provided by law
or these rules.

The court may award in favor of


respondent treble costs solidarily against
the petitioner and counsel, in addition to
subjecting
counsel
to
administrative
sanctions under Rules 139 and 139-B of
the Rules of Court.

Q: After an information for rape was filed in


the RTC, the DOJ Secretary, acting on the
accused's petition for review, reversed the
investigating prosecutor's finding of probable
cause. Upon order of the DOJ Secretary, the
trial prosecutor filed a Motion to Withdraw
Information which the judge granted. The
order of the judge stated only the following:
"Based on the review by the DOJ Secretary of
the findings of the investigating prosecutor
during the preliminary investigation, the
Court agrees that there is no sufficient
evidence against the accused to sustain the
allegation in the information. The motion to

withdraw
granted."

Information

is,

therefore,

If you were the private prosecutor, what


should you do? Explain.
A: If I were the private prosecutor, I would
file a petition for certiorari under Rule 65
with the Court of Appeals (Cerezo vs.
People, G.R. No.185230, June 1, 2011). It is
well-settled that when the trial court is
confronted with a motion to withdraw and
Information (on the ground of lack of
probable cause to hold the accused for
trial based on resolution of the DOJ
Secretary), the trial court has the duty to
make an independent assessment of the
merits of the motion. It may either agree or
disagree with the recommendation of the
Secretary.
Reliance alone on the resolution of the
Secretary would be an abdication of the
trial courts duty and jurisdiction to
determine a prima facie case. The court
must itself be convinced that there is
indeed no sufficient evidence against the
accused. Otherwise, the judge acted with
grave abuse of discretion if he grants the
Motion to Withdraw Information by the
trial prosecutor. (Harold Tamargo vs.
Romulo Awingan et. al. G.R. No. 177727,
January 19, 2010)
Q:Mr. Sheriff attempts to enforce a Writ of
Execution against X, a tenant in a
condominium unit, who lost in an
ejectment case. X does not want to budge
and refuses to leave. Y, the winning party,
moves that X be declared in contempt and
after hearing, the court held X guilty of
indirect contempt. If you were X's lawyer,
what would you do? Why?
A: If I were Xs Lawyer, I would file a
petition for certiorari under Rule 65. The
judge should not have acted on Ys motion

to declare X in contempt. The charge of


indirect contempt is initiated through a
verified petition. (Rule 71, Sec. 4, Rules of
Court). The writ was not directed to X but to
the sheriff who was directed to deliver the
property to Y. As the writ did not command
the judgment debtor to do anything, he
cannot be guilty of the facts described in Rule
71 which is disobedience of or resistance
toalawfulwrit, process, order, judgment, or
command any court. The proper procedure is
for the sheriff to oust X availing of the
assistance of peace officers pursuant to
Section 10 (c) of Rule 39.(Lipa vs. Tutaan, L16643, 29 September 1983; Medina vs.
Garces, L-25923, July 15, 1980; Pascua vs.
Heirs of Segundo Simeon, 161 SCRA 1;
Patagan et. al. Vs. Panis, G.R. No. 55630,
April 8, 1988)
Q: A files a Complaint against 8 for recovery
of title and possession of land situated in
Makati with the RTC of Pasig. B files a
Motion to Dismiss for improper venue. The
RTC Pasig Judge denies B's Motion to
Dismiss, which obviously was incorrect.
Alleging that the RTC Judge "unlawfully
neglected the performance of an act which
the law specifically enjoins as a duty
resulting from an office", 8 files a Petition for
Mandamus
against
the
judge.
Will
Mandamus lie? Reasons.
A: No, mandamus will not lie. The proper
remedy is a petition for prohibition. (Serana
vs. Sandiganbayan, G.R. No. 162059,
January 22, 2008). The dismissal of the case
based on improper venue is not a ministerial
duty. Mandamus does not lie to comple the
performance of a discretionary duty. (Nilo
Paloma vs. Danilo Mora, G.R. No. 157783,
September 23, 2005)

RULE 66
QUO WARRANTO

In latin, quo warranto means by what


right of authority. (Riguera 2013).
A special civil action brought in the name
of the Republic against the usurpation of
public office, position or franchise, and
commenced by the filing of a verified
petition.
QUO
WARRANTO
Basis is that
occupant is
disqualified
from
holding
office by reason
of
ineligibility
or
disloyalty.
If
successful,
respondent is
ousted
but
petitioner shall
not
automatically
assume
the
office vacated.
This
rule
presupposes
that
the
respondent is
already holding
office.
Petition
must
be filed by a
person entitled
to the office.

ELECTION
PROTEST
Challenge rights
of a person to
hold office on
the ground of
irregularities in
the conduct of
election

Successful
protestant
will
assume office if
he had obtained
plurality of valid
votes.

Must be filed
within 10 days
from
the
proclamation of
the candidate.
Petition must be
filed
by
any
registered
candidate.
(Regalado)

Section
1:
When
Government
commence
an
action
against
Individuals
Quo warranto is commenced by the
Government against the following:

1. A person who usurps a public office,


position or franchise;
2. A public officer who performs an act
constituting forfeiture of public office
3. An association which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority to do so.
Section 2: When Solicitor General or
Prosecutor must commence action.
The Solicitor General or public prosecutor
must commence a quo warranto proceeding
when:
1. Directed by the President of the
Philippines,or;
2. Upon complaint or otherwise, he has
good reason to believe that any case
specified inthe preceding section can
be established by proof.
Section 3: When Solicitor General or
Public Prosecutor commence action with
permission of court.
The Solicitor General or public prosecutor
may bring a quo warrantoproceeding at the
request and upon the relation of another
person, with the permission of the court in
which action is to be commenced.
Section
5:
When
Individual
may
commence an action.
A person claiming to be entitled to a public
office or position usurped or unlawfully
held or exercised by another may bring
an action therefore in his own name.
Section 7: Venue of Action
An action for quo warranto can be brought
only on the following courts:
1. Supreme Court;
2. Court of Appeals;
3. Regional
Trial
Court
exercising
jurisdiction over the territorial
area
where therespondent or any of the
respondent resides;
4. Sandiganbayan under RA8249;

5. COMELEC;
6. MTC over barangay
contest

level

election

If the proceeding was brought before the


RTC, it should
be
filed
with
the
RTC
exercising jurisdiction over the
territorial area where the respondent or
any of the respondents resides. If the
action is commenced by the Solicitor
General, it may be brought in a RTC in
Manila, in the Court of Appeals, or in the
Supreme Court (Sec. 7 Rule 66).
JUDGMENT IN QUO WARRANTO
ACTION
Section 9: Judgment where usurpation
found.
Judgment shall be rendered that such
respondent found to be usurping,
intruding or unlawfully holding or
exercising public office, position or
franchise, be ousted.
Section 10: Rights of a Person adjudged
entitled to Public Office
1. After taking the oath of office and
executing any official bond required by
law, he may take upon himself the
execution of the office;
2. Immediately demand from respondent
all the books and papers appertaining
to the office to which the judgment
relates; Respondents neglect or
refusal to comply with the demand is
punishable by contempt.
3. Bring an action for damages
against respondent sustained by him
by reason of the usurpation.
It must be commenced WITHIN 1 YEAR
after
the
entry
of the
judgment
establishing the petitioners right to the
office in question.

RULE 67
EXPROPRIATION
EXPROPRIATION
It is the procedure to be observed in the
exercise of the right of eminent domain.
EMINENT DOMAIN
The right of the State to acquire private
property for public use, upon payment of
just compensation and observance of due
process of law
Requisites:
1. due process
2. just compensation
3. public use
4. valid and definite offer previously
made
Who may exercise the power:
1. The State through, the national
legislature.
2. Local
governments (Sec. 19 Local
Government Code).
There must
bean ordinance passed by
the
LGU, a mere resolution will not
suffice.
3. Public utilities when authorized
by their franchise
Exprorpiation cases are
within the
jurisdiction of the Regional Trial Court.
Justice Feria emphasized that jurisdiction
over eminent domain cases is still within
the RTC under the 1997 Rules of Court. It is
not a question of who has a better title or
right for the government does not even claim
that it has a title to the property. It merely
asserts its inherent sovereign power of
eminent domain to appropriate and control
individual property for the public benefit,
as the public necessity, convenience or
welfare may demand. The subject of an

expropriation suit is the governments


exercise of the power of eminent
domain, a matter incapable of pecuniary
estimation (Brgy. San Roque v. Pastor, G.R.
138896, June 20, 2000).
Matters to allege in Complaint for
Expropriation:
1. State with certainty the right and
purpose of expropriation;
2. Description of the real or personal
property sought to be expropriated;
3. All persons owning or claiming to
own or occupying any part or interest
therein must bejoined as defendants,
showing, so far as practicable, the
separate interest of each defendant;
4. If the title of the property to be
expropriated is in the name of the
republic of thePhilippines or if
the title is obscure or doubtful,
averment to that effect shall be
made in the complaint.
Two Stages in every Action for
Expropriation:
1. Determination of the authority of
the petitioner to exercise the
power of eminent domain and
the propriety of its exercise.
2. Ascertainment by the court of
just compensation. This is done
with assistance of not more than
three (3) commissioners.
When plaintiff can immediately enter
into possession of the Real Property,
in relation to RA 8974
In Case of Real Property
Upon filing of the complaint or at
anytime thereafter and after due notice to
the defendant, the plaintiff shall have the
right to take or enter upon the possession
of the real property involved if he makes
a
Preliminary
Deposit
with
the
authorized
government
depositary

equivalent to the assessed value of the


property.
Form of Deposit:
Shall be in money, unless in lieu thereof the
court authorizes the deposit of a certificate
of deposit of a government bank of the
Republic of the Philippines payable on
demand to the authorized government
depositary.
Purpose of Preliminary Deposit:
1. Provide damages if court finds that the
plaintiff has no right to expropriate.
2. Advance payment for just compensation,
if property is finally expropriated
(Herrera, p. 400).
Value of Preliminary Deposit
If
personal
property

provisionally
ascertained and fixed by the court
If real property assessed value in tax return
In Case of Expropriation for National
Government Infrastructure Projects
The government shall immediately pay the
owner of the property 100% of the market
value of the property based on the tax
declaration or the current relevant BIR
zonal valuation, whichever is higher, and the
value of the improvements using the
replacement cost method (Riguera 2013
citing, Republic vs. Gingoyon, G.R. No.166429,
19 December 2005).
In Case of Expropriation
Government Unit

for

Local

The government unit may immediately take


possession of the property upon the filing of
the expropriation proceedings and upon
making a deposit with the proper court of at
least 15% of the fair market value of the
property based on the current tax
declaration
of
the
property
to
be
expropriated.

the current relevant zonal valuation of


the BIR and

In Case of Personal Property


The value of the personal property shall
be provisionally ascertained and the
amount to be deposited shall be promptly
fixed by the court.
After the deposit is made, the court shall
order the sheriff or other proper officer to
place
the
plaintiff
in
forthwith
possession of the real or personal
property and promptly submit a report
thereof to the court with service of copies
to the parties (Sec. 2 Rule 67). The court
shall issue a writ of possession for this
purpose.Otherwise, the plaintiff shall
have the right to enter upon the property
only upon payment to the defendant of
the compensation fixed by the judgment,
with legal interest thereon from the
taking of the possession of the property, or
after tender to the defendant of the
amount so fixed and payment of the
costs (Sec. 10 Rule 67)(Riguera 2013).
NEW SYSTEM OF IMMEDIATE
PAYMENT OF INITIAL JUST
COMPENSATION
(R.A. 8974)
Where real property is to be acquired for
the right-of-way, site or location for any
national government
infrastructure
project, the appropriate implementing
agency shall initiate the expropriation
proceedings before the proper court under
the following guidelines:
a.

upon the filing of the complaint and


after due
notice
to
the
defendant,
theimplementing
agency shall immediately pay the
owner of the property:
1. The amount equivalent to 100% of
the value of the property based on

2. The value of the improvements or


structures.
b.

In areas where there is no zonal


valuation, the BIR is mandated within 60
days from thedate of the filing of the
expropriation
case
to
come up with a zonal valuation for said
area.

c.

In
case
the
completion
of
government infrastructure
is
of
utmost urgency andimportance, and
there
is
no
existing valuation of
the area, the implementing agency
shall immediately pay the owner of the
property its proffered value.

Upon compliance with the guidelines above,


the court shall immediately issue to
the implementing agency an order to take
possession of the property and start the
implementation
of
the project.
Before the court can issue a writ of
possession, the implementing agency shall
present to the court a certificate of
availability of funds from the proper official
concerned.
Compensation must conform not only with
law but equity as well. Equity is defined as
justice outside the law, being ethical rather
jural and belonging to the sphere of morals
than of law. It is grounded on the precepts
of conscience and not on any sanction of
positive law. Hence, equity finds no room for
application where there is law. However, it is
complement of legal jurisdiction that seeks
to reach and to complete justice where courts
of law, through the inflexibility of their
rules and want of power to adapt their
judgments to the special circumstances of
cases, are incompetent to do so (Asias

Emerging Dragon Corp. v. DOTC; G.R. No.


169914; April 18, 2008)
Section 3: Defenses and Objections

If

defendant

of

Just

JUST COMPENSATION

Objections
A.

Section
5:
Ascertainment
Compensation.

has

no

objection

or

defense:
1. He may file and serve a NOTICE OF
APPEARANCE and MANIFESTATION to
that effect specifically designating or
identifying the property in which he
claims to be interested;
2. Thereafter, he shall be entitled to notice
of all proceedings.
B. If defendant has objection to the filing
or the allegations in the complaint or
defense to the taking of his property,
he must serve his answer within the
time stated in the summons.
Section 4: Order of Expropriation
It is the declaration of the Court that
petitioner has a lawful right to take the
property for public use and upon payment
of just compensation as of the time of
taking of property or filing of the
complaint, whichever is earlier.
The report of the Commissioner on the
value of the condemned property is not
final. Judgment of the court is necessary
to give effect to their valuation.
The
court may correct the commissioners
report in any manner so that final
judgment may be rendered.
A final order sustaining the right to
expropriation may be appealed by any
party aggrieved thereby, but the appeal
shall not prevent the court from
determining the just compensation to be
paid.

The equivalent to the fair market value of


the property at the time of its taking or
filing of complaint whichever comes first. It
is the fair and full equivalent for the loss
sustained by the defendant.
Just Compensation; When Determined
Just compensation is determined as of the
date of the taking of the property or the filing
of the complaint, whichever comes first.
Formula
for determination
of Just
Compensation:
JC means Just Compensation
FMV means Fair Market Value
CD
means
Consequential
Damages
CB means Consequential Benefits
JC = FMV + CD - CB
If CB is MORE than CD then,JC = FMV
In no case shall the consequential benefits
exceed the consequential damages assessed,
or the owner be deprived of the actual
value of his property so taken (Sec. 6).
Sentimental value not computed.
FAIR MARKET VALUE
The price at which the property would
bring in a market of willing buyers and
willing sellers in the ordinary course of trade
and neither operating under pressure or
constraints (Riguera 2013, citing Steven Gifis
Law Dictionary 125 [1975]).
APPOINTMENT
OF
COMMISSIONERS;
COMMISSIONERS REPORT;
COURT
ACTION UPON COMMISSIONERS REPORT

COMMISSIONERS
Not more than 3 competent and
disinterested persons to ascertain and
report to the court the just compensation.
NOTE:
Objections
to
the
ORDER OF APPOINTMENT must be filed
within 10 DAYS from service of the order
and shall be resolved within30 DAYS after
ALL commissioners received the copies of
the objections.
Different from trial by commissioner
because the latters appointment is merely
discretionary.
NOTE: The appointment of commissioners
is MANDATORY and cannot be dispensed
with (Meralco v. Pineda, G.R. No. L-59791,
February 13, 1992).
Duties of the Commissioners
1. Unless the parties consent to the
contrary, Commissioners shall
view and examine theproperty
sought to be expropriated and its
surroundings, and may measure
the same;
2. Assess
the
consequential
damages
to
theproperty not
taken and deduct such damages
from the consequential benefits
derived by the owner; and
3. Report to the court its findings as
to the just compensation of the
property sought to beexpropriated.
Section 7: Report of Commissioners
and Judgment Thereupon
Report of Commissioners
1. It must be filed with the court within
60 DAYS from notice of their
appointment, which timemay be
extended in the discretion of the
court.

2. It shall not be effectual until the court


shall have accepted their report and
rendered judgment
in accordance
with their recommendations.
3. Interested parties may file their objections
to the report within 10 DAYS from
notice thereof.
Findings
of
the
Commissioners
may be disregarded and the Court may
substitute its own estimate of the value
but the latter may only do so for valid
reason and based on the evidence
gathered (Meralco v. Pineda, supra).
Section 8: Action upon Commissioners
Report
Actions Available to the Court
1.
After hearing, accept the report and
render
judgment
in
accordance
therewith;
2. Recommit the same to commissioners
for further report of facts;
3. Set aside the report and appoint new
commissioners; or
4. Accept the report in part and reject it in
part.
Section 10: Rights of Plaintiff upon
Judgment and Payment
Upon payment by the plaintiff of
the compensation fixed by the judgment,
he shall have the right to enter upon the
property expropriated and to appropriate
for the public purpose defined in the
complaint, or to retain it if he has previously
entered it after having given a deposit.
Section 13: Effect of Recording of
Judgment.
The
judgment
entered
in
expropriation
proceedings
shall
state
definitely, by an adequate description, the
particular property or interest therein
expropriated, and the nature of the public use
or purpose for which it is expropriated. When

real estate is expropriated, a certified


copy of such judgment shall be recorded
in the registry of deeds of the place in
which the property is situated, and its
effect shall be to vest in the plaintiff the
title to the real estate so described for
such public use or purpose.
Multiple Appeals in Expropriation
Proceedings; Record on Appeal is
Indispensable
Jurisprudence
recognizes
the
existence
of multiple appeals in
expropriation proceedings because there
are two stages in every action for
expropriation. The reason for multiple
appeals is to enable the rest of the case to
proceed in the event that a separate and
distinct issue is resolved by the trial
court and held to be final. In such a case,
a record on appeal is indispensable since
only a particular incident of the case is
brought to the appellate court for
resolution with the rest of the proceedings
remaining within the jurisdiction of the
trial
court
(Riguera
2013,
citing
Marinduque Mining and Ind. Corp. vs.
NAPOCOR, G.R. No. 161219, 6 October
2008).
Q: The Republic of the Philippines,
through the department of Public Works
and Highways (DPWH) filed with the RTC a
complaint for the expropriation of the
parcel of land owned by Jovito. The land is
to be used as an extension of the national
highway. Attached to the complaint is a
bank certificate showing that there is, on
deposit with the Land Bank of the
Philippines, an amount equivalent to the
assessed value of the property. Then
DPWH filed a motion for the issuance of a
writ of possession. Jovito filed a motion to
dismiss the complaint on the ground that
there are other properties which would
better serve the purpose.

Will Jovitos motion to dismiss prosper?


A:
NO. The present Rule of Procedure
governing expropriation (Rule 67), as
amended by the 1997 Rules of Civil
Procedure, requires the defendant to file an
Answer, which must be filed on or before the
time stated in the summons. Defendants
objectionsand defenses should be pleaded in
his Answer not in a motion.
Q: As judge, will you grant the writ of
possession prayed for by DPWH? Explain.
A: NO. The expropriation here is governed by
Rep. Act No. 8974 which requires 100%
payment of the zonal value of the property as
determined by the BIR, to be the amount
deposited. Before such deposit is made, the
national government thru the DPWH has no
right to take the possession of the property
under expropriation.

RULE 68
FORECLOSURE OF REAL ESTATE
MORTGAGE
JUDGMENT
ON
FORECLOSURE
FOR
PAYMENT OR SALE
a. Ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation,including
interest
and
other
charges
as approved by the
court, and costs;
b. Render judgment for the sum so found
due and order that the same be paid to
the court or to judgment oblige
Within what period:
Within a period of not less than 90 days nor
more than 120 days from entry of judgment.
In default of such payment:
Such property shall be sold at public auction
to satisfy the judgment.

PROPERTY;

due forthe principal or interest and other


valid charges.

Effect when defendant fails to pay the


amount of the judgment within the
period specified
1. The court, upon motion, shall order
the property to be sold in the manner and
underthe provisions of Rule 39 and
other regulations governing sales of real
estate under execution.

Exception:
If property cannot be sold in portions without
prejudice to the parties:
a. Whole shall be ordered to be sold in
the first instance
b. The entire debt and costs shall be
paid, if the proceeds of the sale be
sufficient, therefore, there being a
rebate of interest where such rebate is
proper.

SALE OF
EFFECT

MORTGAGED

2. Sale shall not affect the rights of


persons holding prior encumbrances
upon theproperty or a part thereof.
Effect of Confirmation of the Sale
a. divest the rights in the property of
all the parties to the action; AND
b.
vest their rights in the purchaser,
subject to such rights of redemption as
may be allowedby law.
Section 4: Disposition of Proceeds of
Sale
a. It shall be paid to the person
foreclosing
themortgage
after
deducting the costs of the sale.
b. When there is a balance or residue, it
shall be paid to junior encumbrances
in the order oftheir priority to be
ascertained by the court.
c.
If none, or should there be a
residue after payment to them, then,
to the mortgagor.
Section 5: How sale is to proceed in
case the debt is not all due
General rule:
1. A sufficient portion of the property is
sold to pay the total amount and the costs
due.
2. Thereafter sale shall terminate.
3. Afterwards, court may, on motion, order
more to be sold as often as more becomes

Section 6: Defficiency of Judgment


The court, upon motion, shall render
judgment against the defendant for any
balance (for which, by the record of the case,
he may be personally liable to the plaintiff)
1. If balance is all due at the time of the
rendition of the judgment: execution may
issue immediately.
2. Otherwise, plaintiff shall be entitled to
execution at such time as the balance
remaining becomes due under the terms
of the original contract, which time shall
be stated in the judgment.
Instances

when

court

cannot

render

deficiency judgment:
1. Where the debtor-mortgagor is a nonresident and who at the time of the filing
of the action for foreclosure and during
the pendency of the proceedings was
outside the Philippines, it is believed that
a deficiency judgment
under
sec.6
would not be procedurally feasible. A
deficiency judgment is by nature in
personam and jurisdiction over the
person is mandatory. Having been outside
the country, jurisdiction over his person
could not have been acquired.(Riano)
2. The mortgage was executed by a third
person to secure an obligation of a
debtor,such third person not having

assumed personal liability


payment of debt (Regalado).

for

the

3. A different rule applies in the case of a


mortgage debt due from the estate of a
deceased mortgagor since it is under
Sec. 7, Rule 86 (Regalado).
Section 7: Registration
If no right of redemption exists, the
certificate of title in the name of the
mortgagor shall be cancelled and a new
one issued in the name of the purchaser.
If right of redemption exists:
a. Certificate of title in the name of the
mortgagor shall not be cancelled;
b. Certificate of sale and the order
confirming the sale shall be registered;
c. A brief memorandum thereof shall be
made by the registrar of deeds upon
the certificate of title.
If property is redeemed:
a. Deed of redemption shall be registered
with the registry of deeds;
b. A brief memorandum thereof shall be
made by the registrar of deeds.
If property is NOT redeemed:
a. The final deed of sale shall be
registered with the registry of deeds;
b. The certificate of title in the name of
the mortgagor shall be cancelled and a
new one issued in the name of the
purchaser.
JUDICIAL
FORECLOSUR
E
Requires court
intervention
There is only an
equity
of
redemption
Governed
by

Rule 68
There could be
a
deficiency
judgment

Period
of
redemption
starts from the
finality of the
judgment until
order
of
confirmation
Decisions
are
appealable

EQUITY
REDEMPTION
Right
of
defendant
mortgagor
to
extinguish
the
mortgage
and
retain ownership
of the property by
paying the debt
within
90-120
days
after
the
entry of judgment
or even after the
foreclosure
sale
but
prior
to
confirmation.

EXTRA-JUDICIAL
FORECLOSURE
No
court
intervention
is
necessary
Right
of
redemption exists
Governed

by

Act

Period is 90-120
days after entry of
judgment or even
after
the

3135
No
deficiency
judgment because
there is no judicial
hearing
but
recovery
of
deficiency
is
allowed
Period to redeem
starts from the
date of registration
of certificate of sale

Decisions are not


appealable. It is
immediately
executory
RIGHT OF
REDEMPTION
Right
of
the
debtor,
his
successor
in
interest or any
judicial creditor of
said debtor or any
person having a
lien
on
the
property
subsequent to the
mortgage or deed
of trust under
which
the
property is sold to
redeem
the
property within 1
year
from
registration of the
Sheriffs
certificate
of
foreclosure sale.

Period is 1 year
from
date
of

foreclosure
sale
but
prior
to
confirmation
Governed by Rule
68

registration
of
certificate of sale.
Governed by Secs.
29-31 of Rule 39

Q: (a) RC filed a complaint for annulment


of the foreclosure sale against Bank V. In
its answer, Bank V set up a counterclaim
for actual damages and litigation expenses.
RC filed a motion to dismiss the
counterclaim on the ground that Bank Vs
Answer with Counterclaim was not
accompanied by a certification against
forum shopping. Rule.
A: A certification against forum shopping
is required only in initiatory pleadings. In
this case, the counterclaim pleaded in the
defendants Answer appears to have arisen
from
the
plaintiffs
complaint
or
compulsory in nature and thus, may not
be regarded as an initiatory pleading.
The absence thereof in the Banks
Answer is not a fatal defect. Therefore, the
motion to dismiss on the ground raised
lacks merit and should be denied (UST v.
Suria, 294 SCRA 382 [1998]).
On
the
other
hand,
if
the
counterclaimraised by the defendant
Banks Answer was not predicated on the
plaintiffs claim or cause of action, it is
considered a permissive counterclaim. In
which case, tit would partake an initiatory
pleading which requires a certification
against forum shopping. Correspondingly,
the motion to dismiss based on lack of the
required certificate against forum shopping
should be granted.

RULE 69
PARTITION

PARTITION
The process whereby the co-ownership over
real property is terminated by vesting in
each of the co-owners a specific property or
allotment of the proceeds or value of the
property (Riguera 2013)
Who may file complaint; Who should be
made Defendants
Parties
All co-owners are indispensableparties.
Creditors
or
assignees of
co-owners
may intervene and object to a partition
effected without their concurrence. But
they cannot impugn a partition already
executed.
Unless:
1. There has been fraud; or
2. In case it was made notwithstanding
aformal opposition presented to prevent it.
However, this right to intervene is not
absolute and intervenor must show a
legitimate and proper interest in the subject
property. (De Borja v. Lugo, G.R. No. L-45297,
July 16, 1937)
Non-Inclusion of a Co-Owner
1. Before Judgment - Not a ground for
motion to dismiss; remedy is to file a
motion to include the party.
2. After Judgment - Judgment is void
because co-owners are indispensable
parties.
MATTERS
TO
ALLEGE
COMPLAINT FOR PARTITION

IN

THE

Contents of a Complaint:
1. NATURE AND EXTENT of his title;
2. ADEQUATE DESCRIPTION of the real
estate of which partition is demanded; and

3. Join as DEFENDANTS all


persons interested in the property.

other

Two Stages in every Action for Partition


1. Determination of Co-ownership
2. Accounting
ORDER
OF
PARTITION
PARTITION BY AGREEMENT

AND

When Partition is Proper:


When after trial, thecourt finds that the
plaintiff has right to the property
subject to partition. After the order of
partition, the parties may make the
partition by proper instruments of
conveyance PROVIDED:
1. the court confirmed the partition;
and
2. all parties agreed thereto.
A final order decreeing partition and
accounting may be appealed by any party
aggrieved thereby.
The aggrieved party shall file a notice of
appeal and a record on appeal within 30
days from notice of the order. A record on
appeal is required since there may be a
subsequent appeal from the judgment of
partition and/or accounting for rent and
profits under Sec. 7 and 8 Rule 69
(Riguera 2013, citing Miranda vs. CA, 71
SCRA 295).
Section
3:
Partition
by
the
Commissioners.
If the parties are unable to agree upon
the partition, the court shall appoint not
more than three (3) competent and
disinterested persons as commissioner
to
make
the
partition,
commanding them to set off to the
plaintiff and to each party in interest such
part and proportion of the property as the
court shall direct.

Section 5: Assignment or sale of real


estate by commissioners.
If the commissioners determine that the
property cannot
be
divided
without
prejudice to the interests of the parties, the
court may order that the property be
assigned to one of the parties willing to take
the same, provided he pays to the other
parties such amounts as the commissioners
deem equitable.
Instead of being assigned, an interested
party may ask that the property be sold, in
which case the court shall order the
commissioners to sell the property at a
public sale.
Section 6: Commissioners Report
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, copies shall
be served by the clerk of court upon all
interested parties with notice that they are
allowed 10days within which to file
objections to the findings of the report.
Section 7: Court
Action
upon
Commissioners Report
Court, may upon hearing:
a. Accept the report and render judgment
in accordance with the same.
b. The court may instead of accepting the
report,
recommit
the
same
to
thecommissioners for further report of
facts.
c. It may also accept the report in part or
rejectthe report in part or it may
render such judgment that shall
effectuate a fair and just partition.
Section 11: Judgment and its Effects
Judgment shall state definitely, by metes
and bounds and adequate description, the
particular portion of the real estate assigned
to each party, and the effect of the judgment
shall be to vest in each party to the action in

severalty the portion of the real estate


assigned.
If the whole property is assigned to one
of the parties, the judgment shall state
the fact of such payment and of the
assignment of the real estate to the party
making the payment, and the effect of
judgment is to vest in the party making
the payment the whole of the real estate
free from any interest on the part of the
other parties to the action.
If Property is sold and sale confirmed
by the court, the judgment shall state the
name of the purchaser and a definite
description of the parcels of real estate
sold and the effect of the judgment shall
be to vest the real estate in the
purchaser free from the claims of any
of the parties to the action.
Section 13: Partition of Personal
Property
An action for partition admits multiple
appeals. There are actually three stages in
the action, each of which could be the
subject of appeal, to wit:
1. the order determining the propriety
of the partition;
2. the judgment as to the fruits and
income of the property; and
3. the judgment of partition (Riano,
p.596, supra)
PRESCRIPTION OF ACTION
When can Partition be made:
General rule: It can be made anytime
and the right to demand partition is
IMPRESCRIPTIBLE.
Exception: If a co-owner asserts adverse
title to the property in which case the
period of prescription runs from such
time of assertion of the adverse title.

Q: Florencio sued Guillermo for partition of a


property they owned in common. Guillermo
filed a motion to dismiss the complaint
because Florencio failed to implead Herando
and Inocencio, the other co-owners of the
property. As Judge, will you grant the
motion to dimiss?
A: NO, because the non-joinder of parties is
not a ground for dismissal of action (Rule 3,
Sec. 11). The motion to dismiss should be
denied.

RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
FORCIBLE ENTRY
A summary proceeding for the recovery of
possession by a person who has been
deprived of possession of any land or
building by (FITSS) force, intimidation,
threat, strategy or stealth.
UNLAWFUL DETAINER
The summary proceeding for the recovery of
possession
against
a
person whose
possession was initially lawful but which
later on became unlawful by virtue of
the expiration or termination of the right
to hold possession by virtue of an express
or implied contract or because of the lessees
failure to pay or comply with the conditions
of the lease.
Q: Petitioner and respondent lived in a house
in the expense of respondent while the lot is
registered at the name of the former. They
executed a contract of lease, MOA and special
power of attorney. When their relationship
became sour after 16 years of living together,
respondent filed a complaint for unlawful
detainer against the petitioner when the latter
does not vacate the property despite
demands. Can the respondent eject the

petitioner from the property through


filing of unlawful detainer case?
A: No, because under Section 1 of Rule 70
of the Rules of Court, a lessor, vendor,
vendee, or other person against whom the
possession of any land or building is
unlawfully withheld after the expiration or
termination
of the
right
to
hold
possession, by virtue of any contract,
express
or
implied,
or
the
legal
representatives or assigns of any such
lessor, vendor, vendee, or other person,
may, at any time within one (1) year after
such unlawful deprivation or withholding
or possession, bring an action in the
proper Municipal Trial Court against the
person or persons unlawfully withholding
or depriving of possession, or any person
or persons claiming under them, for the
restitution of such possession together
with damages and costs.
A complaint sufficiently alleges a cause of
action for unlawful detainer if it recites the
following:
1. Initially, possession of property by the
defendant was by contract with or by
tolerance of the plaintiff;
2. Eventually, such possession became
illegal upon notice by plaintiff to defendant
of the termination of the latters right of
possession;
3. Thereafter, the defendant remained in
possession of the property and deprived
the plaintiff of the enjoyment thereof; and
4.Within one year from the last demand on
defendant to vacate the property (Fullido v.
Grilli, Feb. 29, 2016)
FORCIBLE
ENTRY
Possession

of

UNLAWFUL
DETAINER
Possession

of

land is unlawful
from
the
beginning due to
force,
intimidation,
threat,
strategy
or stealth (FITSS)
No requirement of
previous demand
for defendant to
vacate
the
premises
Plaintiff
must
prove that he was
in prior physical
possession until
he was deprived
thereof by the
defendant
1-year
period
counted
from
date of actual
entry or when
plaintiff learned
thereof.

property
defendant
is
inceptively lawful
but
become
illegal by reason
of termination of
right
of
possession.
Demand
is
jurisdictional

Plaintiff need not


have
been
in
prior
physical
possession

1-year
period
from date of last
demand

Three (3) Kinds of Possessory Actions of


Real Property:
1. Accion Interdictal - summary action for
forcible entry and detainer. It seeks the
recovery oaACf physical possession only.
It is brought within 1 year in the
Municipal Trial Court.
2. Accion Publiciana - plenary action for
the recovery of right to possess.
3. Accion Reivindicatoria - seeks the
recovery of ownership and possession.
HOW TO DETERMINE JURISDICTION IN
ACCION
INTERDICTAL,
ACCION
PUBLICIANA
AND
ACCION
REINVINDICATORIA
ACCION
INTERDICT

ACCION
PUBLICIA

ACCION
REINVINDI

AL
Summary
action
for
the
recovery of
physical
possession
where the
dispossessi
on has not
lasted
for
more than
1 year
All cases of
forcible
entry and
unlawful
detainer,
irrespective
of
the
amount of
damages or
unpaid
rentals
sought
to
be
recovered
should be
brought to
the MTC.

NA
A
plenary
action
for
the
recovery of
the
real
right
of
possession
when
the
dispossessi
on
has
lasted
for
more than
1 year.
RTC
has
jurisdiction
if the value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdiction
if the value
of
the
property
does
not
exceed the
above
amounts.

CATORIA
An
action
for
the
recovery of
ownership,
which
necessarily
includes
the
recovery of
possession.

RTC
has
jurisdictio
n if the
value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdictio
n if the
value of
the
property
does not
exceed the
above
amounts.

NOTE: RA 7691 expanded the jurisdiction


of the MTCs. It vests MTCs with exclusive
original jurisdiction over real actions
where the assessed value
does
not
exceed PHP 20,000.00 and PHP 50,000.00
in Metro Manila.
Lessor must proceed against lessee only
after demand.
Demand may either be:

1. to pay and vacate; or


2. to comply with the conditions of the
lease and vacate.
When prior demand in unlawful detainer
actions not required:
a. When purpose of action is to terminate
lease because of expiry of term and not
because of failure to pay rental or to
comply with terms of lease contract;
b. Purpose of suit is not for ejectment but
for enforcement of terms of contract;
c. When defendant is not a tenant but a
mere intruder
In all other cases, there must be a
demand:
1.To pay or to comply with the conditions
ofthe lease; and
2. To vacate by written notice on the person
inthe premises or by posting such notice on
the premises if no person is found thereon
and this is a condition precedent to the filing
of the case.
ORAL demand is not permitted.
3. If demand is in the alternative (pay or
vacate),
this
is
NOT
the
demand
contemplated by the Rules.
NOTE: The right of the owner to file
ejectmentsuit is limited by PD 1517.
Where the owner intends to sell the
property to third party, the legitimate
tenant of at least 10 years may not be
ejected but only if he decides to purchase
the property intended for sale by its owner.
The preemptive right of the lessee exists only
in respect of the urban land under lease on
which the tenant has built his home.

When
the
defendant
raises
the
issue of ownership in his pleadings and
the question of possession cannot be
resolved without deciding the issue of
ownership, the latter issue shall be
resolved
only
to
determine
the
issue of possession.
NOTE: A forcible entry/unlawful detainer
action has an entirely different subject
matter from that of an action for
reconveyance.
The
former
involves
material possession, and the latter,
ownership. Thus, the pendency of an
action for reconveyance does not divest
the MTC of its jurisdiction over an action
for FE/UD, nor will it preclude execution
of judgment in the ejectment case where
the only issue involved is material
possession.
Section 1: Who may institute the
action and when; against whom the
action may be maintained
1.
The action of forcible entry and
detainer may be maintained only against
one in possessionat the commencement of
the action;
2. Tenant with right of possession may
bringaction against another tenant;
3. Vendor may bring action for ejectment
against vendee upon failure to pay the
installments;
3. Forcible entry and unlawful detainer lie
evenagainst the very owner of property.
NOTE: Amount of rents and damages
claimed does not affect the jurisdiction of
the municipal court because they are
only incidental or accessory to the main
action (Lao Seng Hian v. Lopez, G.R. No.
L-1950, May 16, 1949).
But if only rents or damages are claimed
in an ordinary action, the action is

personal
and
the
amount
claimed
determines whether it falls within the
jurisdiction of RTC or MTC.
Section 4: Pleadings Allowed.
1. Complaint
2. Compulsory counterclaims
3. Cross-claim
4. Answer thereto
Section 5: Action on the complaint
Dismiss case outright if any ground for
dismissal of civil action is apparent therein
or issue summons if no ground for dismissal
is found.
WHEN DEMAND IS NECESSARY
When prior demand in unlawful detainer
actions not required:
a. When purpose of action is to terminate
lease because expiry of term and not
because of failure to pay rental or to
comply with terms of lease contract;
b. Purpose of suit is not for ejectment but
for enforcement of terms of contract; and
c. When defendant is not a tenant but a
mere intruder.
In all other cases, there must be a
demand:
1. To pay or to comply with the conditions of
the lease; and
2. To vacate by written notice on the person
in the premises or by posting such notice on
thepremises if no person is found thereon
and this is a condition precedent to the filing
of the case; ORAL demand is not permitted.
If demand is in the alternative (pay OR
vacate), this is NOT the demand
contemplated by the Rules.
Section 13: Prohibitefd Pleadings and
Motions.

1. Motion to dismiss the complaint


except on the grounds of lack of
jurisdiction over thesubject matter,
or failure to comply with Sec. 12;
2. Motion for bill of particulars;
3. Motion
for
postponements
which are dilatory;
4. Motion for reconsideration or new
trial, or for reopening of trial;
5. Motion for extension of time to file
pleading, affidavits or any other
paper;
6. Motion to declare the defendant in
default;
7. Third-party complaints;
8. Memoranda;
9. Petition for relief from judgment;
10. Intervention;
11. Reply;
12. Certiorari,
mandamus,
or
prohibition
against
any
interlocutory order issued by the
court.
Section 15: Preliminary Injunction and
Preliminary Mandatiry Injunction.
PRELIMINARY INJUNCTION
The court may grant preliminary
injunction in accordance with the
provisions of Rule 58 to prevent the
defendant from committing further acts of
dispossession against the plaintiff.
PRELIMINARY
MANDATORY
INJUNCTION
A possessor deprived of his possession
through forcible entry or unlawful
detainer may, within 5 days from filing
of
the complaint, present a
motion, in the action for forcible
entry
or unlawful detainer, for the
issuance of a writ of preliminary
mandatory injunction to restore him in
his possession, and the same shall be
decided within 30 days from the filing
thereof (Riguera 2013).

Preliminary Mandatory Injunction in case


of Appeal
Upon motion of the plaintiff and within 10
days from the perfection of the appeal to the
RTC, the latter may issue a writ of
preliminary mandatory injunction to restore
the plaintiff in possession if the court is
satisfied that the defendants appeal is
frivolous or dilatory, or that the
plaintiffs appeal is prima facie meritorious
(Riguera 2013, citing Sec. 20)
Section
16:
Resolving
Defense
of
Ownership
When the defendant raises the defense of
ownership in his pleadings and the question
of possession cannot be resolved without
deciding the issue of ownership, the
ownership shall be resolved
only
to
determine the issue of possession.
Q: Is formal contract a prerequisite in
unlawful detainer?
A:NO. The existence of a formal contract is
NOT necessary in unlawful detainer. Even
if there is no formal contract between the
parties, there can still be an unlawful
detainer because implied contracts are
covered
by
ejectment
proceedings.
Possession by tolerance creates an implied
promise to vacate the premises upon
demand by the owner (Peran v. CFI of
Sorsogon, G.R. No. 57259, October 13, 1983).
Section 19: How to Stay the Immediate
Execution of Judgment
General rule: Judgment against
defendant is immediately executor.

the

Exception:
When the following concur:
1. The defendant perfects an appeal;
2. Defendant
files
a
sufficient
supersedeasbond, to pay the rents,
damages and cost accruing down to

the time of judgment appealed from;


and
3. Defendant deposits with the court
the amount of rents due from time to
time underthe contract, or in the
absence of contract, the reasonable
value of the use and occupation of
the premises.
In forcible entry, the amount of the
supersedeas bond and the amounts to
be periodically deposited shall be the
reasonable value of the use
and
occupancy of
the
premises
as
determined by the court.
In unlawful detainer, the amount of the
bond and periodic deposit of rentals shall
be that stated in the lease contract.
(Regalado)
Q: The spouses Juan reside in Quezon
City. With their lottery winnings, they
purchased a parcel of land in Tagaytay City
for P100,000.00. In a recent trip to their
Tagaytay property, they were surprised to
see hastily assembled shelters of light
materials occupied by several families of
informal settlers who were not there when
they last visited the property three (3)
months ago.
To rid the spouses Tagaytay property of
these informal settlers, briefly discuss
the legal remedy you, as their counsel,
would use; the steps you would take;
the court where you would file your
remedy if the need arises; and the
reason/s for your actions.
A: As counsel for spouses Juan, I will file a
special civil action for Forcible Entry. The
Rules of Court provide that a person
deprived of the possession of any land or
building by force, intimidation, threat,
strategy, or stealth may at any time within
1 year after such withholding of

possession bring an action in the proper


Municipal Trial Court where the property is
located. This action which is summary in
nature seeks to recover the possession of the
property from the defendant which was
illegally withheld by the latter (Section 1, Rule
70, Rules of Court).
An ejectment case is designed to restore,
through summary proceedings, the physical
possession of any land or building to one who
has been illegally deprived of such
possession,
without
prejudice
to
the
settlement of partiesopposing claims of
juridical possession in an appropriate
proceedings (Heirs of Agapatio T. Olarte and
Angela A. Olarte et. al. vs. Office of the
President of the Philippines et al., G.R. No.
177995, June 15, 2011, Villarama, Jr., J.).
In Abad vs. Farrales, G.R. No. 178635, April
11, 2011, the Supreme Court held that two
allegations are indispensable in actions for
forcible entry to enable first level courts to
acquire jurisdiction over them: first, that the
plaintiff had prior physical possession of the
property; and, second, that the defendant
deprived him of such possession by means of
force, intimidation, threats, strategy, or
stealth.
However, before instituting the said action, I
will first endeavor to amicably settle the
controversy with the informal settlers before
the
appropriate
Lupon
or
Barangay
Chairman. If there is no agreement reached
after mediation and conciliation under the
Katarungang Pambarangay Law, I will secure
a certificate to file action and file the
complaint for ejectment before the MTC of
Tagaytay City where the property is located
since ejectment suit is a real action
regardless of the value of the property to be
recovered or claim for unpaid rentals (BP 129
and RULE 4, Section 1 of the Revised Rules on
Civil Procedure).

In the aforementioned complaint, I will


allege that Spouses Juan had prior
physical
possession
and
that
the
dispossession
was
due
to
force,
intimidation and stealth. The complaint
will likewise show that the action was
commenced within a period of one (10 year
from unlawful deprivation of possession,
and that the Spouses Juan is entitled to
restitution of possession together with
damage costs.
Q: Anabel filed a complaint against B for
unlawful detainer before the Municipal
Trial Court (MTC) of Candaba, Pampanga.
After the issues had been joined, the MTC
dismissed the complaint for lack of
jurisdiction after noting that the action
was one for accion publiciana.
Anabel appealed the dismissal to the RTC
which affirmed it and accordingly
dismissed her appeal. She elevates the
case to the Court of Appeals, which
remands the case to the RTC. Is the
appellate court correct? Explain.
A: YES, the Court of Appeals is correct in
remanding the case to the RTC for the
latter to try the same on the merits. The
RTC, having jurisdiction over the subject
matter of the case appealed from MTC
should try the case on the merits as if the
case was originally filed with it, and not
just to affirm the dismissal of the case.
R.A. No. 7691, however, vested jurisdiction
over specified accion publiciana with
courts of the first level (Metropolitan Trial
Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts) in cases
where the assessed value of the real
property
involved
does
not exceed
P20,000.00 outside Metro Manila, or in
Metro Manila, where such value does not
exceed P50,000.00.

Q: Filomeno brought an action in the


Metropolitan Trial Court (METC) of Pasay City
against Marcelino pleading two causes of
action. The first was a demand for the
recovery of physical possession of a parcel of
land situated in Pasay City with an assessed
value of 40,000; the second was a claim for
damages of 500,000 for Marcelinos unlawful
retention of the property. Marcelino filed a
motion to dismiss on the ground that the
total amount involved, which is 540,000, is
beyond the jurisdiction of the MeTC. Is
Marcelino correct?
A: No, Metropolitan or Municipal trial Courts
have exclusive jurisdiction over a complaint
for forcible entry and unlawful detainer
regardless of the amount of the claim for
damages (Sec. 33 [2], B.P. 129).
Also, Sec. 3, Rule 70 gives jurisdiction to the
said courts irrespective of the amount of
damages. This is the same provision in the
Revised Rules of Summary Procedure that
governs all ejectment cases (Sec. 1[A][1],
Revised Rule on Summary Procedure). The
Rule, however, refers to the recovery of a
reasonable amount of damages. In this case,
the property is worth only P40,000, but the
claim for damages is P500,000.
Q:X files an unlawful detainer case against Y
before the appropriate Metropolitan Trial
Court. In his answer, Y avers as a special and
affirmative defense that he is a tenant of Xs
deceased father in whose name the property
remains registered. What should the court
do? Explain briefly.
A: The court should hold a preliminary
conference not later than thirty (30) days
after the defendants Answer was filed, since
the case is governed by summary procedure
under Rule 70, Rules of Court, where a Reply
is not allowed. The court should receive
evidence to determine the allegations of
tenancy. If tenancy had in fact been shown to

be the real issue, the court should dismiss


the case for lack of jurisdiction. If it would
appear that Ys occupancy of the subject
property was one of agricultural tenancy,
which is governed by agrarian laws, the
court should dismiss the case because it
has no jurisdiction over agricultural
tenancy cases. Defendants allegation that
he is a tenant of plaintiffs deceased
father suggests that the case is one of
landlord-tenantrelation andtherefore, not
within the jurisdiction of ordinary courts.
Q: Ben sold a parcel of land to Del with
right to repurchase within one (1) year.
Ben remained in possession of the
property. When Ben failed to repurchase
the same, title was consolidated in favor of
Del. Despite demand, Ben refused to
vacate the land, constraining Del to file a
complaint for unlawful detainer. In his
defense, Ben averred that the case should
be dismissed because Del had never been
in possession of the property. Is Ben
correct?
A: No, for unlawful detainer, the defendant
need not have been in prior possession of
the property. This is upon the theory that
the vendee steps into the shoes of the
vendor and succeeds to his rights and
interests. In contemplation of law, the
vendees possession is that of the vendors
(Maninang vs. C.A., G.R. No. 121719, 16
September 1999; Dy Sun vs. Brillantes, 93
Phil. 175 [1953]); (Pharma Industries, Inc.,
vs. Pajarillaga, G.R. No. L-53788, 17
October 1980).

RULE 71
CONTEMPT
CONTEMPT
The disobedience to the court by acting
in opposition to its authority, justice and
dignity.

KINDS OF CONTEMPT
According to Manner of commission
1. DIRECT CONTEMPT is misbehavior in
the presence of or so near a court as to
obstructor interrupt the court proceeding.
2.
INDIRECT CONTEMPT is one not
committed in the presence of the court. It is
an act done at adistance which tends to
belittle, degrade, obstruct or embarrass the
court and justice.
According to their Nature:
1.
CRIMINAL
CONTEMPT conduct
directed against the authority and dignity of
the courtor a judge. It is obstruction of
the administration of justice which tends to
bring the court to disrespect.
2. CIVIL CONTEMPT the failure to do
somethingordered by the court to be done
for thebenefit of the opposing party.
Functions of Contempt
1. Vindication of public interest by
punishment of contemptuous court
2. Coercion to compel the contempt or to do
what the law requires him to uphold the
power of the court and to secure rights of
the parties to a suit awarded by the court.
Purpose of Contempt
The reason behind this power to punish for
contempt is that respect of the courts
guarantees the stability of their institution
(Riguera 2013,citing Jaime R. Nuevas,
Remedial Law Reviewer 321 [1964]).
Acts
constituting
Direct
Contempt
(contempt in facie curiae)
1. Misbehavior in the presence or so near
the court as to obstruct or interrupt
the proceedings before the same;
2. Disrespect toward the court;
3. Offensive personalities towards others;

4. Refusal to be sworn as witness or to


answeras a witness; and
5.
Refusal
to
subscribe
an
affidavit
or deposition when lawfully
required to do so.
An imputation in a pleading of gross
ignorance against a court or its judge,
especially in the absence of any evidence,
is a serious allegation, and constitutes
direct contempt of court. It is settled that
derogatory,
offensive
or
malicious
statements contained in pleadings or
written submissions presented to the same
court or judge in which the proceedings
are pending are treated as direct contempt
because they are equivalent to a
misbehavior committed in the presence of
or so near a court of judge as to interrupt
the administration of justice. This is true,
even if the derogatory, offensive or
malicious statements are not read in open
court.(Habawel vs. CTA 8 June 2004)
Penalty for Direct Contempt
1. If the act constituting direct
contempt was committed against
the RTC or a court of equivalent
or higher rank the penalty is a
fine not exceeding two thousand
pesos or imprisonment not
exceeding 10 days, or both.
2. If the act constituting direct
contempt was committed against
a lower court - the penalty is a
fine not exceeding two hundred
pesos or imprisonment of not
exceeding 1 day, or both
Indirect Contempt
a. Not committed in the presence of
the court;
b. Punished only after hearing
complaint in writing or motion or
party or order of courtrequiring

person to appear and explain,


opportunity to appear and show cause.
Grounds for Indirect Contempt
1. Misbehavior of an officer of a court in the
performance of his official duties or in
hisofficial transactions;
2. Disobedience of or resistance to a lawful
writ, process, order or judgment of a court;
3. Any
abuse
of
or
any
unlawful
interferencewith
the
processes
or
proceedings of a court not constituting
direct contempt;
4. Any improper conduct tending, directly
orindirectly, to impede, obstruct, or
degrade the administration of justice;
5. Assuming to be an attorney or officer of a
court,
and
acting
as
such
withoutauthority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of
aperson or property in the custody of an
officer by virtue of an order or process of a
court held by him.
Requisites before the Accused may be
Punished for Indirect Contempt:
1. A charge in writing to be filed
2. An opportunity for the person charged to
appear and explain his conduct.
3. To be heard by himself or counsel.
Criminal Contempt
Conduct directed against
orauthority of the court.

the

dignity

Purpose:
To vindicate authority of the court and
protect its outraged dignity.
If accused is acquitted, there can be no
appeal.
Civil Contempt
Failure to do something ordered by the
court for the benefit of a party.

Purpose:
To protect and enforce civil rights and
remedies of the litigants.
If judgment is for respondent, there can be
an appeal.
Remedy against Direct Contempt
Petition for Certiorari or Prohibition
directed against the court which
adjudge him in direct contempt.
Remedy
against
Indirect
ContemptAppeal (Notice of Appeal) from
judgment or final order in the same
manner as in criminal cases. The appeal
shall not stay the judgment, unless the
offender files a bond in an amount fixed
by the court from which the appeal is
taken.
Section 4: How Contempt Proceedings
are Commenced:
1. By order or other formal charge by
the court requiring the respondent
to show cause whyhe should not
be punished for contempt (motu
proprio); or
2. By a verified petition with
supporting
particulars
and
certified
true
copies
of
thenecessary
documents
and
papers (independent action.
ACTS
DEEMED
PUNISHABLE
AS
INDIRECT CONTEMPT
1. Misbehavior of an Officer of the
court in theperformance of his
official duties or in his official
transactions.
2. Disobedience of or a resistance to
a lawfulwrit, process, order, or
judgment of the court, including
the act of a person who after being

3.

4.

5.

6.
7.

dispossess or ejected from a real


property by the judgment or process
of
any
court
of
competent
jurisdiction, enters or attempts or
induces another to enter into or upon
such real property, for the purposes
of executing acts of ownership, or
in
any manner disturb the
possession given to the person
adjudged to be entitled thereto.
Any abuse of or any unlawful
interferencewith
the
process
or
proceedings of a court, or degrade the
administration of justice.
Any improper conduct tending,
directly orindirectly, to impede,
obstruct,
or
degrade
the
administration of justice.
Assuming to be an attorney or an
officer of acourt, and acting without
such authority.
Failure to obey subpoena duly served.
The rescue, or attempted rescue of a
person or property in the custody of
an officer by virtue of an order or
process of a court heldby
him
(Riguera,
Primer
Reviewer
on
Remedial Law).

Section 8: When Imprisonments shall be


imposed.
When the contempt consists in the refusal
or omission to do an act which is yet in the
power of the
respondent
to
perform,
he may be imprisoned by the order of the
court concerned until he performs it.
CONTEMPT AGAINST QUASI-JUDICIAL
ENTITIES
Rule 71
applies
suppletorily
to
contempt committed against persons,
entities, bodies or agencies exercising
judicial functions.
The RTC of the place where the contempt
was committed shall have the jurisdiction
over such charges.

The
persons,
entities,
bodies
or
agencies
exercising
quasi-judicial
functions does not have the power to
contempt. Contempt power is essentially
of a judicial nature (Negros Oriental ll
Electric
Cooperative
v.
Sangguniang
Panlunsod of Dumaguete G.R. No. 72492,
5 Nov 1987)

EVIDENCE
RULE 128
GENERAL PRINCIPLES
Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the
truth respecting a matter of fact (Sec. 1, Rule 128).
Component Elements
a. Evidence as a means of ascertainment -refer to (a) the evidentiary fact; or, (b) the
manner of bringing this fact forward before the tribunal; or, (c) both.
b. Sanctioned by these rules
-means allowed under these rules or more accurately NOT excluded by these rules. The
rules can only refer to the rules on relevancy and admission.
c. In a JUDICIAL PROCEEDING.
d. The truth respecting a matter of fact -refers to an issue of fact and is both substantive
(determines what facts need to be established) and procedural (the manner of proving
these facts or acts) (Herrera).
The Rules of Evidence determine the following:
4. The relevancy of facts
5. The proof of facts
6. The production of proof of relevant facts
APPLICABILITY OF THE RULES
ON EVIDENCE

General Rule:
The rules of evidence, being partsof the Rules of
Court, apply only to judicial proceedings (Sec. 1, Rule 128).
Exception: When the law specifically providesotherwise such as Section 4, Rule 1, 1997 Rules
of Civil Procedure on non-applicability of the Rules of Court.
Instances where rules of evidence DO NOT apply to judicial proceedings:
1. In a civil case covered by the Rule on Summary Procedure since there is no trial;
2. Rules on Summary Procedure in criminal cases, where the witnesses admit their
affidavits and counter-affidavits, subject only. to cross-examination;
3. Agrarian cases;
4. Rules regarding the testimony of witnesses from examinations, etc., in cases under the
MTC (where the parties merely submit theirposition papers and their witnesses affidavits
and counter-affidavits
SCOPE OF THE RULES ON EVIDENCE
(Sec. 2)
General Rule: The rules of evidence shall be thesame in all courts and in all trials and
hearings (Principle of Uniformity).

Exception: When the law or the Rules of Courtprovide otherwise.


EVIDENCE IN CIVIL CASES AND
EVIDENCE IN CRIMINAL CASES
DISTINGUISHED
CIVIL CASES
Claim
must
be
proven
by
preponderance
of
evidence
Offer of compromise
is not an admission
of liability and is not
admissible
in
evidence against the
offeror
Concept
of
presumption
of
innocence does not
apply
except
in
certain
cases
provided for by law

CRIMINAL CASES
Guilt of the accused
has to be proven
beyond
reasonable
doubt
Offer of compromise
by the accused may
be
received
in
evidence
as
an
implied admission of
guilt except those
involving
quasioffenses
Accused enjoys the
constitutional
presumption
of
innocence

EVIDENCE AND PROOF DISTINGUISHED


EVIDENCE
Medium of proof
The
mode
and
manner of proving
competent facts in
judicial proceedings
The
process
of
proving
facts
in
judicial proceedings

PROOF
Result or effect of
evidence
The effect when the
requisite quantum of
evidence
of
a
particular fact has
been duly admitted
and given weight
The facts which are
to be proven

FACTUM PROBANDUM AND FACTUM


PROBANS
Evidence signifies a relationship between two facts:
1. Factum Probandum the ultimate fact orproposition to be established. The
determination of what facts are necessary for the application of a particular law or a
legal precept is the foundation upon which the law on evidence rests. It may be
ascertained in:
a. pleadings submitted by the parties;
b. pre- trial order;
c. issues which are tried with the express or implied consent of the parties (Sec.
5, Rule10).
NOTE:

If a fact is admitted, established or proven(i.e. matters of judicial notice, conclusive


presumptions and judicial admissions) there is no more factum probandum because such
matters need not be established or proven (Evidence [TheBar Lectures Series], Riano, 2009).

CIVIL CASES

CRIMINAL
CASES

The
factum
probandum refers to
the elements of a
plaintiffs cause of
action
and
the
elements
of
the
defense from the
standpoint of the
defendant.
The
factum
probandum
includes all matters
that
the
prosecution
must
prove
beyond
reasonable doubt in
order to justify a
conclusion.

2. Factum Probans the facts or materialevidencing the fact or proposition to be


established. It is the evidentiary fact by which the factum probandum is to be
established.
The probans signifies a relation between the facts. The difference would not be in the nature of
the proof but in the nature of facts required to be proved.
The law on evidence is concerned solely with the relation between the EVIDENTIARY FACTS
and such PROPOSITION.
ADMISSIBILITY OF EVIDENCE
(Sec. 3)
Axioms of Admissibility
a. None but facts having rational probative value are admissible. - Axiom of Relevance;
b. All facts having rational probative value are admissible, unless some specific rule
forbids them. - Axiom of Competence (1 Wigmore).
REQUISITES FOR ADMISSIBILITY
1. It must be relevant.
It must have such arelation to the fact in issue as to induce belief in its existence or
non-existence. It is determinable by the rules of logic and human experience.
Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.

2. It must be competent Not excluded by thelaw or the Rules of Court. It is determined


by the prevailing exclusionary rules of evidence.
Exclusionary Rule
The exclusionary rule is embodied in the 1987 Constitution.
Scope
1.
2.
3.
4.

of Exclusionary Rule: Four (4) Rights Protected


The right against unreasonable search and seizure (Sec. 2);
The right to privacy and inviolability of communication (Sec. 3);
The right of person under investigation for an offense (Sec. 12); and
The right against self-incrimination (Sec. 17) (Herrera).

Fruit of the Poisonous Tree Doctrine


All evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed,
whether it was obtained directly through the illegal search itself, or indirectly using
information obtained in the illegal search.
Q: Dominique was accused of committing a violation of the human Security Act. He was
detained incommunicado, deprived of sleep, and subjected to water torture. He later allegedly
confessed his guilt via an affidavit After trial, he was acquitted on the ground that his
confession was obtained through torture, hence, inadmissible as evidence. In a subsequent
criminal case for torture against those who deprived him of sleep and subjected him to water
torture. Dominique was asked to testify and to, among other things, identify his above said
affidavit of confession. As he was about to identify the affidavit, the defense counsel objected
on the ground that the affidavit is a fruit of a poisonous tree. Can the objection be sustained?
Explain. (Bar 2010)
A: No, the objection may not be sustained on the ground stated, because the affiant was only
toidentify the affidavit which is not yet being offered in evidence.
The doctrine of the poisonous tree can only be invoked by Domingo as his defense in the crime
of Violation of Human Security Act filed against him but not by the accused torture case filed
by him.
In the instant case, the presentation of the affidavit cannot be objected to by the defense
counsel on the ground that is a fruit of the poisonous tree because the same is used in
Domingos favor.
Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he was
informed of his constitutional rights. During the investigation, Edmond refused to give any
statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6)
sachets of shabu were confiscated from him.
Edmond consented and also signed a receipt for the amount of P3,000, allegedly representing
the purchase price of the shabu. At the trial, the arresting officer testified and identified the
documents executed and signed by Edmond. Edmonds lawyer did not object to the testimony.

After the presentation of the testimonial evidence, the prosecutor made a formal offer of
evidence which included the documents signed by Edmond.
Edmonds lawyer object to the admissibility of the document for being the fruit of the poisoned
tree. Resolve the objection with reasons. (Bar 2009)
A: The objection to the admissibility of the documents which the arresting officer asked
Edmond to sign without the benefit of counsel, is well-taken. Said documents having been
signed by the accused while under custodial investigation imply and admission without the
benefit of counsel, that the shabu came from him and that the P3,000,00 was received by him
pursuant to the illegal selling of the drugs. Thus, it was obtained by the arresting officer in
clear violation of sec. 12 (3), Art. III of the 1987 Constitution, particularly the right to be
assisted by counsel during custodial investigation. Moreover, the objection to the admissibility
of the evidence was timely made, i.e., whe the same is formally offered.
Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the
same is formally offered.
ADMISSIBILITY OF
EVIDENCE
Refers
to
the
question of whether
certain
pieces
of
evidence are to be
considered at all
The admissibility of
the
evidence
depends
on
its
relevance
and
competence.

WEIGHT OF
EVIDENCE
Refers
to
the
question of whether
the
admitted
evidence proves an
issue
It has to do with the
effect of evidence
admitted and its
tendency to convince
and persuade.

Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its
surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of shabu
which they alleged to have swallowed Lorenzo.
Suppose the PGH agreed to, and did perform the surgery is the package of shabu admissible in
evidence? Explain. (Bar 2010)
A: No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence
because it was obtained through surgery which connotes forcible invasion into the body of
Lorenzo without his consent and absent due process. The act of the policemen and the PGH
surgeoninvolved,violate the fundamental rights of Lorenzo, the suspect.
RELEVANCE OF EVIDENCE AND
COLLATERAL MATTERS
(Sec. 4)

When is evidence relevant


When it relates directly to a fact in issue; or to a fact from which, by the process of logic, an
inference may be made as to the existence or non-existence of a fact in issue. (Francisco, 1984).
Collateral Matters
Matters other than the factsin issue and which are offered as a basis for inference as to the
existence and non-existence of the facts in issue. A matter is collateral when it is on a parallel
or diverging line, merely additional or auxiliary.
General Rule:
Collateral matters are NOT allowed because it does not have relevance to the issue of the case.
Exception:
Acollateral matter may be admitted ifit tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
Classification of Collateral Matters
a. Prospectant Collateral matters- are thosepreceding of the fact in issue but pointing
forward to it. e.g.: moral character, motive, conspiracy.
b. Concomitant Collateral matters- are thoseaccompanying the fact in issue and
pointing to it. e.g., alibi, or opportunity and incompatibility.
c. Retrospectant Collateral matters- are thosesucceeding the fact in issue but pointing
backward to it. e.g., flight and concealment, behavior of the accused upon being
arrested, fingerprints or footprints, articles left at the scene of the crime which may
identify the culprit.
DOCTRINES OF ADMISSIBILITY OF EVIDENCE
1. Multiple Admissibility
Evidence is relevant and competent for two or more purposes, such evidence should be
admitted for any or all purposes for which it is offered provided it satisfies all the
requirements of law for its admissibility therefor.
NOTE:
It must be remembered that thepurpose for which the evidence is offered must be specified
because such evidence may be admissible for several purposes under the doctrine of
multiple admissibility, or may be admissible for one purpose and not for another, otherwise
the adverse party cannot interpose the proper objection (Uniwide Sales Realty v. Titan-Ikeda
Construction and Development Corp., G. R. No. 126619, Dec. 20, 2006).
2. CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer appears to be immaterial or irrelevant unless
it is connected with the other facts to be subsequently proved, such evidence may be
received on the condition that the other facts will be proved thereafter, otherwise the
evidence already given will be stricken out.
This doctrine was applied in a criminal case People v. Yatco, 97 Phil. 940 and in a civilcase
Prats & Co. v. Phoenix Insurance Co., etc., 52 Phil. 807 subject to the qualification that there

should be no bad faith on the part of the proponent which appears necessary to avoid
unfair surprises to the other party (Regalado).
3. CURATIVE ADMISSIBILITY
Allows a party to introduce otherwise inadmissible evidence to answer the opposing
partys previous introduction of inadmissible evidence if it would remove any unfair
prejudice caused by the admission of the earlier inadmissible evidence. Conversely, the
doctrine should not be invoked where evidence was properly admitted.
What Determines
the Rule on Curative Admissibility:
a. Whether the incompetent evidence is seasonably objected to;
b. Whether regardless of the objections, the admission of such evidence will cause a plain
and unfair prejudice to the party against whom it was admitted.
The admissibility of evidence is determined at the time it is offered to the court (Sec. 35, Rule
132). Object or real evidence is offered to the court when the same is presented for its view or
evaluation, or when the party rests his case and the real evidence consists of objects exhibited
in court. Testimonial evidence is offered by the calling of the witness to the stand.
Documentary evidence is formally offered by the proponent immediately before he rests his
case (Regalado).
CLASSIFICATION OF EVIDENCE
A. Depending on its ABILITY TO ESTABLISH THE FACT in dispute:
1. DIRECT EVIDENCE that which provesthe fact in dispute without the aid of
any inference or presumption.
2. CIRCUMSTANTIAL EVIDENCE proof offact or facts from which, taken either
singly or collectively, the existence of the particular fact in dispute may be
inferred as a necessary or probable consequence. (Sec. 5, Rule 133)
B. Depending on its WEIGHT AND ACCEPTABILITY:
1. PRIMARY OR BEST EVIDENCE that whichthe law regards as affording the
greatest certainty of the fact in question.
2. SECONDARY OR SUBSTITUTIONARY thatwhich is necessarily inferior to
primary evidence and shows on its face that better evidence exists. It is
permitted by law only when best evidence is not available.
C. Depending on its FORM:
1. OBJECT EVIDENCE (REAL or PHYSICAL
That which is addressed to the senses of the court, and when relevant to the fact
in issue, may be exhibited to, examined or viewed for the personal observation of
the judge. It is also called autopticproference.
2. DOCUMENTARY EVIDENCE

Consists of writing, or any material containing letters, words, numbers, figures,


symbols or other modes of written expression offered as proof of their contents
(Sec. 2, Rule 130).
3. TESTIMONIAL EVIDENCE (ORAL or VERBAL)
That which is submitted to the court through the testimony or deposition of a
witness.
4. POSITIVE EVIDENCE
When the witness affirms that a certain state of facts does exist or that a certain
event happened.
NOTE:
Positive evidence is, as a generalrule, more credible than negative evidence.
5. NEGATIVE EVIDENCE
When the witness states that an event did not occur or that the state of facts
alleged to exist does not exist.
Evidence that is negative is self-serving in nature and cannot attain more credibility than the
testimonies of witnesses who testify on clear and positive evidence (People v. Larranaga, 463
SCRA652).
Although such categories as positive and negative evidence are normally associated with
testimonial evidence, no rule precludes their application to other forms of evidence.
(Evidence[The Bar Lectures Series], Riano, 2009).
Such may refer to the presence or absence of something, i.e., the presence of fingerprints of a
person in a particular place is positive evidence of his having been in said place although
absence of his fingerprints does not necessarily mean he was not in the same place.
D. Depending on its DEGREE OF VALUE:
1. CONCLUSIVE EVIDENCE that class ofevidence which the law does not allow it
to be contradicted.
2. PRIMA FACIE EVIDENCEthat which,standing alone, unexplained
uncontradicted, is sufficient to maintain the proposition affirmed.

or

3. CUMULATIVE EVIDENCE evidence of thesame kind and character as that


already given and that tends to prove the same proposition.
4. CORROBORATIVE EVIDENCE one that issupplementary to that already given
to strengthen and confirm it. It is additional evidence of a different kind and
character, tending to prove the same point.
Corroborative evidence is necessary only when there are reasons to suspect that
the witness falsified the truth or that his observations are inaccurate
(Mangangey v. Sandiganbayan, G.R.Nos. 147773-74, February 18, 2008).

E. Depending on its QUALITY:


1. RELEVANT EVIDENCE one which has arelation to the fact in issue as to
induce belief in its existence or non-existence. (Sec. 4, Rule 128)
2. MATERIAL EVIEDENCE when it is directedto prove a fact in issue as
determined by the rules of substantive law and pleadings (Wigmore on Evidence).
3. COMPETENT EVIDENCE one that is notexcluded by law or the Rules of Court,
a statute or the Constitution.
4. ADMISSIBILE EVIDENCE it is relevant tothe issue and is not excluded by law
or by the Rules of Court.
5. CREDIBLE EVIDENCE it is not onlyadmissible but also believable and used by
the court in deciding a case.
F. Depending on its FUNCTION:
1. REBUTTAL EVIDENCE that which is givento explain, repel, counteract or
disprove facts given in evidence by the adverse party.
2. SUR-REBUTTAL that which is given toexplain, repel, counteract or disprove
facts introduced in rebuttal.
Types of Rules of Evidence
a. Those established for reasons of publicpolicy; and
b. Those established for the protection of theparties. In such a case, the rules of
evidencemay be waived.
The parties may waive such rules (1) during the trial of a case or (2) through stipulation in a
contract, provided the waiver is not contrary to law, public order, public policy, morals, or
good customs or prejudicial to a third person with a right recognized by law (Art. 6, Civil
Code).
NOTE:
However, if the rule of evidence waived bythe parties has been established by law on grounds
of public policy, the waiver is void, i.e. waiver of the privilege against the disclosure of state
secrets is void (Handbook on Evidence,Francisco, 1984).
RULE 129
WHAT NEED NOT BE PROVED
Facts
a.
b.
c.

that need not be proved:


Facts which are presumed (Rule 131);
Facts which are of judicial notice (Rule 129); and
Facts which are judicially admitted (Rule129).

MATTERS OF JUDICIAL NOTICE

Judicial notice is based on considerations of expediency and convenience (Regalado, 2008). The
function of judicial notice is to abbreviate litigation by the admission of matters that need no
evidence because judicial notice is a substitute for formal proof of a matter by evidence
(Evidence [The Bar Lectures Series], Riano, 2009).
NOTE:
Judicial notice takes the place of proof andis of equal force. It displaces evidence and fulfills the
purpose for which the evidence is designed to fulfill. Hence, it makes evidence unnecessary
(Moran, Comments on the Rules of Court, 1980).
JUDICIAL NOTICE, WHEN MANDATORY
(Sec. 1, Rule 129)
Matters subject to MANDATORY Judicial Notice (SOFT GL2AMP2)
a. Territorial extent of states;
b. Political history of states;
c. Forms of government of states;
d. Symbols of nationality;
e. Law of nations;
f.
Admiralty and maritime courts of the worldand their seals;
g. Political constitution and history of thePhilippines;
h. Official acts of the legislative, executive andjudicial departments of the Philippines;
i. Laws of nature;
j. Measure of time; and
k. Geographical divisions
NOTE:
When the matter is subject tomandatory judicial notice, no motion or hearing is necessary for
the court to take judicial notice of a fact as this is a matter which a court ought to take judicial
notice of.
Judicial Notice fulfills the objective which theevidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the personal knowledge of the court; rather, it is
the cognizance of common knowledge.
Matter considered as common knowledgeThey are those matters coming to the knowledge of men generally in the course of ordinary
experiences of life, or they may be matters which are generally accepted by mankind as true
and are capable of ready and unquestioned demonstration.
Judicial Knowledge
It is the cognizance of certain factswhich a judge under rules of legal procedure or otherwise
may properly take or act upon without proof because they are already known to him, or is
assumed to have, by virtue of his office.
JUDICIAL NOTICE, WHEN

DISCRETIONARY
(Sec. 2, Rule 129)
Matters Subject to DISCRETIONARY Judicial Notice:
1. Matters of public knowledge -- A fact is said to be generally recognized or known when
its existence or operation is accepted by the public without qualification or contention
(Francisco).
2. Matters capable of unquestionable demonstration -- pertains to fields of professional
and scientific knowledge; and
3. Matters ought to be known to judges because of their judicial functions i.e. facts which
are ascertainable from the record of court proceedings, such as when court notices were
received by a party.
NOTE:
Judicial notice under Sec. 2 of Rule 129rests on the wisdom and discretion of the court. The
power to take judicial notice must be exercised with caution and care must be taken that the
requisite notoriety exists. Any reasonable doubt on the matter sought to be judicially noticed
must be resolved against the taking of judicial notice (State Prosecutors v. Muro, 236SCRA 505).
General Rule:
The Court is NOT authorized totake judicial notice of the contents of the record of other cases
in the adjudication of cases pending before it even if said cases have been heard or are pending
before such Court.
Exceptions:
Courts may take judicial notice of therecord of other cases before it when:
1. There is no objection or by agreement of the parties, in which case it may be read into
therecords or admitted as part of the record ofthe case then pending; The other
proceedings or causes of which are so closely interwoven or independent;
2. Where the interests of the public in ascertaining the truth are of paramount
importance; or
3. In cases seeking to determine what is reasonable exercise of discretion or whether or
not a previous ruling is applicable in a case under consideration (Francisco on
Evidence).
The exceptions are applicable only when in the absence of objections, with the knowledge of
the opposing party, or at the request or with the consent of the parties.The case is
withdrawnfrom the archives and admitted as part of the record then pending.
JUDICIAL NOTICE, WHEN HEARING IS
NECESSARY
(Sec. 3, Rule 129)
A hearing may be necessary, not for the presentation of evidence, but to afford the parties
reasonable opportunity to present information relevant to the propriety of taking such judicial
notice or to the tenor of the matter to be noticed (Herrera on Evidence).

When Judicial Notice May Be Taken


1. During the trial, on any matter The courtmay announce its intention to take judicial
notice of any matter and may hear the parties thereon.
2. After the trial and before judgment or on appeal The Court may take judicial notice
ofany matter and allow the parties to be heard thereon only if such matter is decisive of
a material issue in the case.
In BOTH instances, the Court may act on its own initiative or on request of a
party(Feria,Philippine Legal Studies, Series No. 4).
JUDICIAL ADMISSION
(Sec. 4, Rule 129)
It is an admission, verbal or written, made by a party in the course of the proceedings in the
same case, which does not require proof
Requisites for Judicial Admissions:
a. The admission must be made by a party to the case.
b. It must be made in the course of the proceedings in the same case.
c. Admission may be either verbal or written.
Judicial admissions may be made in:
1. The pleadings filed by the parties (National Electrification Administration v. CA, GR No.
103585, Oct. 6, 1996);
NOTE:
An admission made in a pleading maybe an actual admission as when a party (a)
categorically admits a material allegation made by the adverse party or (b) fails to
specifically deny the material allegations in the other partys pleadings.
2. During the trial either by verbal or written manifestations or stipulations;
3. In other stages of the judicial proceedings, as in the pre-trial conference of the; or
4. Admissions obtained through depositions (Rule 24), written interrogatories (Rule 25) or
requests for admissions (Rule 26).
JUDICIAL
ADMISSION
Admission
made
by a party in the
course
of
the
proceedings in the
same case.
Conclusive
upon
the party making it

EXTRAJUDICIAL
ADMISSION
One made out of
court or in a
judicial proceeding
other than the one
under
consideration.
As a rule, it is
conclusive.

and
does
require proof.

not

However, when the


elements
of
estoppel are not
present,
it
is
disputable.

EFFECTS OF JUDICIAL ADMISSION


General rule:
Judicial does not require proof andit cannot be contradicted because they are conclusive upon
the party making it.
Exceptions:
1. When shown that the admission was made through palpable mistake, or
2. When it is shown that no such admission wasin fact made.
Instances of Judicial Admission:
a. Admissions of facts in pre-trial of civil cases (Sec. 2, Rule 18)
b. Genuineness and due execution of an actionable document when the adverse party fails
to specifically deny it (Sec. 8, Rule 8,PNBv. Refrigeration Industries, Inc., G.R. No.
156178, January 20, 2006)
c. Allegations of usury in a complaint to recover usurious interest, if not denied under
oath (Sec. 11, Rule 8)
d. Act, declaration or omission of a party as to a relevant fact (Sec. 26, Rule 130)
e. Admissions obtained through depositions, written interrogatories or requests for
admission.
Averments in Pleadings which are NOT Deemed Admissions
a. Immaterial allegations, e.g., allegations by way of anticipation of defense (Worcester
v.Lorenzana);
b. Incorrect conclusions of facts drawn from facts set out in the complaint;
c. Conclusions of law;
d. General averments contradicted by specific averments;
e. Unliquidated damages.
No admissions are permitted in:
a. Annulment of marriage (Article 48, FamilyCode); and
b. Legal separation (Article 60, Family Code)
General rule:
Judicial admissions made in onecase are admissible at the trial of another case provided they
are proved and are pertinent to the issue involved in the latter.
Exceptions:
a. The said admissions were made only for purposes of the first case, as in the rule of
implied admissions and their effects under Rule 26;
b. The same were withdrawn with the permission of the court therein; or
c. The court deems it proper to relieve the party therefrom.

HOW JUDICIAL ADMISSIONS


MAYBE CONTRADICTED
When such admission was made through palpable mistake or that there was no such
admission.
JUDICIAL NOTICE OF FOREIGN LAWS,
LAWS OF NATIONS AND MUNICIPAL
ORDINANCES
1. Foreign Law must be proved as any otherfact, except where said laws are within the
actual knowledge of the courts.
To prove a written foreign law, the requirements of Secs. 24 and 25, Rule 132 must be
complied with.
SEC. 24. Proof of official record.
The record of public documents referred to in paragraph (a) of Section 19, 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, with a certificate that such
officer has the custody. If the office in which the record is kept is in a 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.
SEC. 25. What attestation of copy must state.
Whenever a copy of a document or record is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official seal
of the attesting officer, if there be any, or if he be the clerk of a court having a seal,
under the seal of such court.
To prove an unwritten foreign law, the provisions of Sec. 46, Rule 130 supply the
evidential sources or remedies.
SEC. 46. Learned treatises.
A published treatise, periodical or pamphlet on a subject of history, law, science or art is
admissible as tending to prove the truth of a matter stated therein if the court takes
judicial notice, or a witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is recognized in his profession or
calling as expert in the subject.
DOCTRINE OF PROCESSUAL PRESUMPTION
The doctrine which lays down the presumption that the foreign law is the same as the
law of the forum. It arises if the foreign law, though properly applicable, is either not
alleged, or if alleged, is not duly proven before a competent court.

2. Law of Nations the law of nations which is the subject of judicial notice is the law
which regulates the relations of the dominant powers of the earth. It is the compilation
of rules which by common consent of mankind have been acquiesced in as law.
When foreign law refers to the law of nations, such law is subject to a mandatory
judicial notice under Sec. 1 of Rule 129.
Under the Philippine Constitution, the Philippines adopts the generally accepted
principles of international law as part of the law of the land (Sec. 2, Art. II, Constitution
of the Philippines).
Being parts of the law of the land, they are therefore technically in the nature of local
laws, hence are subject to mandatory judicial notice.
3. Judicial Notice of Municipal Ordinances
Municipal trial courts are required to take judicial notice of the ordinances of the
municipality or city wherein they sit. However, in the case of Regional Trial Courts, they
must take judicial notice only:
a. When required to do so by statute, e.g., in Manila as required by the city charter
(City ofManila v. Garcia, et al., L-26053, 21 Feb. 1967); and
b. In a case on appeal before them and wherein the inferior court took judicial
notice of an ordinance involved in said case (U.S. v.Fernandez, 31 Phil. 342).
RULE 130
RULES OF ADMISSIBILITY
OBJECT (REAL) EVIDENCE
(Sec. 1, Rule 130)
Nature of Object Evidence
Objects as evidence are those addressed to the senses of the court. When an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed by the court.
Rationale on Admissibility of Object Evidence
The evidence of ones own senses furnishes the strongest probability and the only perfect and
indubitable certainty of the existence of any sensible fact.
Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred
witnesses.
Requisites
a. The
b. The
c. The
d. The

of Admissibility of Object Evidence


evidence must be relevant;
evidence must be authenticated before it is admitted;
authentication must be made by a competent witness; and
object must be formally offered in evidence.

Categories of Object Evidence

For purposes of authentication, object evidence is classified into the following:


1. Objects that have readily identifiable marks (unique objects);
2. Objects that are readily made identifiable (objects made unique); and
3. Objects with no identifying marks and cannot be marked (non-unique objects).
DEMONSTRATIVE EVIDENCE
Tangible evidence that merely illustrates a matter of importance in the litigation, i.e., maps,
diagrams, photographs, x-ray pictures. It is not strictly real evidence because it is not the
very thing involved the case as it merely represents or demonstrates the real thing. It is a
visual aid.
If the object evidence can be brought to the courtroom, the court can have it exhibited before it
through a witness who may present it as an exhibit during his testimony, and thereafter the
court may have it examined or viewed in open court during trial in the presence of the parties.
An object may be merely set forth for inspection, or some experimental process may merely
employ his senses directly or he may use some suitable mechanical aid, such as a microscope;
and he may merely look on, or he may take an active share in the process of experimentation
(Herrera citing 2 Wigmore on Evidence, Sec.1152).
Where an object which has relevance to the fact in issue cannot be introduced in court,
because it is immovable or inconvenient to remove, like buildings, machinery, animals or other
heavy objects, the natural tendency is for the tribunal to go to the object in its place and there
observe it. This process, traditionally known as a view, has been recognized as appropriate
and rests entirely on the sound discretion of the trial court (Herreraciting 2 Wigmore on
Evidence, Sec. 1162).
CHAIN CUSTODY RULE
(in relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2000)
The Chain of Custody Rule applies to objects which are not readily identifiable, were not made
identifiable or cannot be made identifiable like drops of blood, drugs in powder form, fiber and
similar objects.
Under this situation, the proponent must establish a chain of custody.
Chain of Custody means the duly recordedauthorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. (People v.Obmiranis, G.R. No. 181492, December 16,
2008)
General Rule:
The rule requires that in order to guaranty the integrity of the physical evidence and to prevent
the introduction of evidence which is not authentic, each of the handlers of the evidence who is
a link in the chain must testify how he received the object, how he handled it to prevent
substitution and how it was transferred to another.

Exceptions:
1. As long as one of the chain testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
2. Where evidence is possessed jointly by two people, it is not necessary for both to testify
as to the chain of custody.
Instances when exhibition maybe dispensed with:
a. Where the presentation is violative of decency.
b. Where the presentation has no purpose other than to arouse the passion of the court
towards the party against whom it is offered in evidence.
c. When the object is repulsive or offensive to the sensibilities.
d. Where, in the discretion of the court, the production of evidence will cause great
inconvenience, or where, for other reasons, it is unjust.
Q: Discuss the "chain of custody" principle with respect to evidence seized under R.A. 9165 or
the Comprehensive Dangerous Drugs Act of 2002. (Bar 2012)
A: In prosecutions involving narcotics and other illegal substances, the substance itself
constitutes part of the corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt. The chain of custody requirement is
essential to ensure that doubtsregarding the identity of the evidence are removed through the
monitoring and tracking of the movements of the seized drugs from the accused, to the police,
to the forensic chemist, and finally to the court. (People vs. Sitco, G.R. No. 178202, May 14,
2010, Velasco, Jr. J.)
Ergo, the existence of the dangerous drug is a condition sine qua non for conviction. (People vs.
De Guzman Y Danzil, G.R. No. 186498, March 26, 2010 Nachura J.)
The failure to establish, through convincing proof, that the integrity of the seized items has
been adequately preserved through an unbroken chain of custody is enough to engender
reasonable doubt on the guilt of an accused. (People vs. De Guzman y Danzil)
Nonetheless, non-compliance with the procedure shall not render void and invalid the seizure
and custody of the drugs when:
1. such non-compliance is attended by justifiable grounds; and
2. the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending team. There must be proof that these two (2) requirements were met
before such non-compliance may be said to fall within the scope of then proviso. (People
vs. Dela Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273)
A.M. No. 06-11-5-SC RULE ON DNA
EVIDENCE
Scope

This Rule shall apply whenever DNAevidence, is offered, used, or proposed to be offered or
used as evidence in:
a. criminal actions,
b. civil actions, and
c. special proceedings (Sec.1)
DNA (deoxyribonucleic acid)
The chainof molecules found in every nucleated cell of the body. The totality of an individuals
DNA is unique for the individual, except identical twins.
DNA Evidence
The totality of the DNA profiles,results and other genetic information directly generated from
DNA testing of biological samples.
DNA Profile
Genetic information derived fromDNA testing of a biological sample obtained from a person,
which biological sample is clearly identifiable as originating from that person.
APPLICATION FOR DNA TESTING ORDER
Who May File an Application for DNA Testing Order
1. Appropriate court at its own instance
2. Any person who has a legal interest in the matter in litigation (Sec. 4, RDE)
The DNA Testing Order shall be issued upon a showing of the following:
a. A biological sample exists that is relevant to the case;
b. The biological sample: (i) was not previously subjected to the type of DNA testing now
requested; or (ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new information that is relevant
to the proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy of integrity of the DNA testing (Sec.5).
However, DNA testing may be done without the prior court orderat the behest of any
party,including law enforcement agencies, before a suit or proceeding is commenced (Sec. 4,
RDE).
An order granting the DNA testing shall be immediately
be appealable.

executory

and

shall

NOT

Remedy against the court order if it is NOT appealable


The remedy is to file a petition for certiorari but any petition for certiorari initiated shall not, in
any way, stay the implementation thereof, unless a higher court issues an injunctive order
(Sec. 5,RDE).
Post-conviction DNA testing; when available

Post-conviction DNA testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judgment provided that:
a. A biological sample exists,
b. Such sample is relevant to the case, and
c. The testing would probably result in the reversal or modification of the judgment of
conviction. (Sec. 6)
POST-CONVICTION DNA TESTING; REMEDY
The convict or the prosecution may file a petition for a writ of habeas corpus in the court of
origin if the results of the post-conviction DNA testing are favorable to the convict.
In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or
modify the judgment of conviction and order the release of the convict, unless continued
detention is justified for a lawful cause (Sec. 10, RDE).
Where should the petition for habeas corpus be filed
The petition shall be filed in the court of origin as a rule. However, it may be filed either in the
CA or the Supreme Court, or with any member of said courts, which may conduct a hearing
thereon or remand the petition to the court of origin and issue the appropriate orders (Sec. 10).
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY
The following shall be considered:
1. The chain of custody, including how the biological samples were collected, how they
were handled, and the possibility of contamination of the samples;
2. The DNA testing methodology;
3. The forensic DNA laboratory; and
4. The reliability of the testing result (Sec. 7,RDE).
Jurisprudential Guidelines in Assessing the Probative Value of DNA Evidence
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the
tests; and
4. The qualification of the analyst who conducted the tests (People v. Vallejo, 382SCRA
192, 2002).
RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY
The court shall consider the following:
a. Weight of matching DNA evidence or the relevance of mismatching DNA evidence;
b. The totality of the other evidence presented in the case; and
c. DNA results that exclude the putative parent from paternity shall be conclusive proof of
non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results
of the DNA testing shall be considered as corroborative evidence. If the value of the
Probability of Paternity is 99.9% or higher there shall be a disputable presumption of
paternity (Sec. 9, RDE).
CONFIDENTIALITY OG THE DNA TESTING RESULTS
General rule:

DNA profiles and all results or otherinformation obtained from DNA testing shall be
confidential.
Exception:
Upon order of the court, a DNA profileand all results or other information obtained from DNA
testing shall only be released to any of the following: (PLL DO)
a. Person from whom the sample was taken;
b. Lawyers representing parties in the case oraction where the DNA evidence is offered
and presented or sought to be offered and presented;
c. Lawyers of private complainants in a criminalaction;
d. Duly authorized law enforcement agencies;and
e. Other persons as determined by the court (Sec. 11, RDE).
Where the person from whom the biological sample was taken files a written verified request to
the court that allowed the DNA testing for the disclosure of the DNA profile of the person and
all results or other information obtained from the DNA testing, the same may be disclosed to
the persons named in the written verified request (Sec. 11).
The use of DNA as object evidence did not violate the constitutional right against selfincrimination. The right against self-incrimination applies only to testimonial compulsion and
it does not apply where the evidence sought to be excluded is not an incriminating statement
but an object evidence (People v. Yatar, G.R. No. 150224, May19, 2004).
Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence
showing that the semen found in the private part of the victim was not identical with that of
the accused. As private prosecutor, how will you dispute the veracity and accuracy of the
results of the DNA evidence? (Bar 2010)
A: As a private prosecutor, I shall try to discredit the results of the DNA test by questioning and
possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the
biological sample obtained; the testing methodology employed; the scientific standard observed;
the forensic DNA laboratory which conducted the test; and the qualification, training and
experience of the forensic laboratory personnel who conducted the DNA testing.
Q: The Vallejo standard refers to jurisprudential norms considered by the court in assessing
the probative value of DNA evidence. (Bar 2009)
A: TRUE. In People vs. Vallejo, 382 SCRA 192 (2002), it was held that in assessing the
probative value of DNA evidence, courts should consider among other things, the following
data: how the samples were collected, how they were handled, the possibility of contamination
of the samples, whether the proper standards and procedures were followed in conducting the
test and the qualification of the analyst who conducted tests.
DOCUMENTARY EVIDENCE
(Sec. 2, Rule 130)
Documents as evidence are:

1. Writings, or
2. Any material containing modes of written expressions including letters, words,
numbers, figures, or symbols offered as proof of their contents.
When a document is considered as real or object evidence
If a document is offered for the purpose establishing its existence, execution, circumstances
surrounding its execution or the condition of the document itself and NOT as proof of their
contents, the same is considered as object or real evidence which the court may view for such
purpose.
Documents are object (real) evidence if the purpose is to prove their existence or condition, or
the nature of the handwritings thereon, or to determine the age of the paper used, or the
blemishes or alterations thereon, as where falsification is alleged. Otherwise, they are
considered documentary evidence, i.e., if the purpose is to establish the contents or tenor
thereof (Regalado).
REQUISITES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a competent witness; and
d. The document must be formally offered in evidence.
BEST EVIDENCE RULE
General rule
When the subject of inquiry is thecontents of a document, no evidence shall be admissible
other than the original document itself. It operates as a rule of exclusion in that secondary
evidence cannot inceptively be introduced as the original writing itself must be produced in
court, except in the four instances mentioned.
Rationale
The copy of the original is notas reliable as the latter because of possible inaccuracies in the
process of copying and the danger of erroneous transmission of the original.
Exceptions
1. When the original has been lost, or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
4. When the original is a public record in the custody of a public officer or is recorded in a
public office. (Sec. 3, Rule 130)
Limitations to the Rule:
a. Proof of collateral facts is not within the coverage of the best evidence rule;
b. The document is not necessarily the best evidence even if a fact in issue is evidenced by
the same;

c. The rule has no application to prove a fact which existence is proven independently of
any writing;
d. The rule applies only to documentary evidence and not to object evidence.
The subject of inquiry under the best evidence rule is the contents of writing, NOT the truth
thereof.
Where the transactions have been recorded in writing but the contents of such writing are not
the subject of the inquiry, the best evidence rule does not apply. Affidavits and depositions
are considered as not being the best evidenced, hence not admissible if the affiants or
deponents are available as witnesses (4 Martin, op. cit., p. 82). However, if the issue is the
existence and/or contents of said documents, then they are considered primary evidence, but
any recitation therein of the contents of another document would merely be secondary evidence
of the latter (Regalado).
Waiver of the Rule
The Best Evidence Rule may be WAIVED if not raised in the trial as when secondary evidence is
offered and no objection was made by the adverse party.
ORIGINAL OF DOCUMENT (Sec. 4, Rule 130)
What are Considered Original Documents
1. The original of a document is one the contents of which are the subject of inquiry.
2. When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.
3. When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.
Is the photocopy of marked bills admissible in evidence?
The photocopy of the bills being object evidence is admissible in evidence without violation of
the best evidence rule. The rule applies only to documentary evidence and not to object
evidence.
Requisite for admission of secondary evidence
In order that such secondary evidence may be admissible, there must be proof by
satisfactoryevidence of:
a. Due execution of the original;
b. Loss, destruction or unavailability of all such originals; and
c. Reasonable diligence and good faith in the search for or attempt to produce the original
(Zaldivar v. Mun. of Talisay, 18 Phil. 262).
The loss, destruction or unavailability of the document should not be due to the offerors bad
faith (Sec. 5, Rule 130).
The due execution of the document should be proved through the testimony of either:
a. The person/s who executed it;
b. The person before whom its execution was acknowledged; or
c. Any person who was present and saw it executed and delivered or who thereafter saw it
and recognized the signatures, or one to whom the parties thereto had previously

confessed the execution thereof (Director ofLands, et al. v. CA, et al., L-29575, 30 April
1971).
If the document is in the custody or under the control of the adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its existence,
he fails to produce the document, secondary evidence may be presented as in the case of its
loss (Sec. 6, Rule 130).
A party who calls for the production of a document and inspects the same is not obliged to
offer it as evidence (Sec. 8, Rule 130).
No particular form of notice is required, as long as it fairly apprises the other party as to what
papers are desired (4 Martin, op. cit., pp. 94-95). Even oral demand in open court for such
production at a reasonable time thereafter will suffice. Such notice must, however, be given to
the adverse party, or his attorney, even if the document is in the actual possession of a third
person (Regalado).
RULE 130
The production of
the
original
document
is
procured by mere
notice
to
the
adverse party and
the requirements of
such notice must be
complied with as a
condition precedent
for the subsequent
introduction
of
secondary evidence
by the proponent.
Generally,
it
presupposes
that
the document to be
produced
is
intended
as
evidence for the
proponent who is
presumed to have
knowledge of its
contents, secondary
evidence
thereof
being available in
case of its nonproduction.

RULE 27
The production of
the document is in
the nature of a
mode of discovery
and can be sought
only
by
proper
motion in the trial
court,
but
is
permitted only upon
good cause shown.

This
rule
contemplates
the
situation
wherein
the document is
either assumed to
be favorable to the
party
in
the
possession thereof
or that the party
seeking
its
production is not
sufficiently
informed
of
the
contents
of
the
same. (Regalado)

Where the nature of the action is in itself a notice, as where it is for the recovery or annulment
of documents wrongfully obtained or withheld by the other party, no notice to produce said
documents is required (Warner Barnes & Co., Ltd. V. Buenaflor, et al., 36 O.G. 3290).
For the exception regarding voluminous records to apply, the following must be present:
a. The voluminous character of the records must be established; and
b. Such records must be made accessible to the adverse party so that their correctness
may be tested on cross-examination (Cia.Maritima v. Allied Free Workers Union, et al.,
L028999, 24 May 1977).
Sec. 7, Rule 130 complements as an exception to the Best Evidence Rule in correlation with
Rule 132 Secs. 24 and 27.
SEC. 7. Evidence admissible when originaldocument is a public record.
When theoriginal of a document is in the custody of a public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in custody
thereof.
A.M. No. 01-7-01-SC
RULES ON ELECTRONIC EVIDENCE
Scope
The Rules on Electronic Evidence shall apply whenever an electronic data message, is offered
or used in evidence.
Coverage
These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases.
An electronic document, also known interchangeably as electronic data message, based on the
definition of the Rules, does not only refer to the information itself. It also refers to the
representation of that information (Sec.1[h], Rule 2).
Electronic data message
Information generated,sent, received or stored by electronic, optical or similar means Whether
it is the information itself or its representation, for the document to be electronic, it is
important that it be received,recorded, transmitted, stored, processed, retrieved or produced
electronically.
Purposes for the Use of Electronic Documents
An electronic document may be used for any of the following purposes:
a. To establish a right;
b. To extinguish an obligation; or
c. To prove or affirm a fact (Sec.1[h], Rule 2).
Electronic documents as functional equivalent of paper-based documents
NOTE: Since, an electronic document is thefunctional equivalent of a paper-based document,
whenever a rule of evidence refers to the terms of a writing, document, record, instrument,

memorandum or any other form of writing, such term shall be deemed to include electronic
documents (Sec.1, Rule 3).
Requisites for Admissibility:
An electronic document is admissible in evidence:
a. If it complies with the rules on admissibility prescribed by the Rules of Court related
laws and;
b. Authenticated in the manner prescribed by these Rules (Sec. 2).
Burden of Proving Authenticity
The person seeking to introduce an electronic document in any legal proceeding has the
burden of proving its authenticity in the manner provided in this Rule (Sec. 1, Rule 5).
NOTE:
If it is a private electronic documentoffered as authentic, its authenticity need to be proven by
the person introducing the document before it is admitted in evidence (Sec. 1 and 2,Rule 5,
Rules on Electronic Evidence).
An electronic evidence is the equivalent of an original document under the Best Evidence Rule
if it is a printout or readable by sight or other means, shown to reflect the data accurately. (Bar
2009) (Sec. 1, Rule 4 of A.m. No. 01-7-01-SC, re: Rules on Electronic Evidence)
MANNER
OF AUTHENTICATION OF ELECTRONIC DOCUMENTS
Before any private electronic document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:
a. By evidence that it had been digitally signed by the person purported to have signed the
same; or
b. By evidence that other appropriate security procedures or devices as may be authorized
by the Supreme Court or by law for authentication of electronic documents were applied
to the document; or
c. By other evidence showing its integrity and reliability to the satisfaction of the judge
(Sec.2, Rule 5).
NOTE:
Sec. 2, Rule 5 will only apply when thedocument is a private electronic document and when the
same is offered as an authentic document.
If the electronic document is offered simply for what it is or claimed without regard to whether
or not it is authentic, Sec. 2, Rule 5 does not apply. In such case, the electronic document has
to be only identified pursuant to the suppletory application of Sec. 20, Rule 132 of the Rules of
Court stating that any private document need only be identified as that which it is claimed to
be (Evidence [The Bar Lectures Series], Riano, 2009).
Proof of Electronically Notarized Document
A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court.

NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
Privileged Communication
The confidential character of a privileged communication is NOT lost solely on the ground that
it is in the form of an electronic document (Sec.3, Rule 3).
NOTE: Privileged communications apply even toelectronic evidence.
ELECTRONIC SIGNATURES
Electronic signature refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedure employed or
adopted by a person and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data message or electronic document. For
purposes of these Rules, an electronic signature includes digital signatures (Sec. 1[j]).
An electronic signature or a digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional equivalent of the signature of a person
on a written document (Sec. 1, Rule 6).
Authentication of Electronic Signatures
An electronic signature may be authenticated in any of the following manner:
1. By evidence that a method or process was utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as establishing the genuineness of the
electronic signature (Sec. 2, Rule 6).
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
1. The electronic signature is that of the person to whom it correlates;
2. The electronic signature was affixed by that person with the intention of authenticating
or approving the electronic document to which it is related or to indicate such person's
consent to the transaction embodied therein; and
3. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6).
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Factors for Assessing Evidentiary Weight
In assessing the evidentiary weight of an electronic document, the following factors may be
considered:
1. The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls,

2.
3.

4.
5.

6.

tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;
The reliability of the manner in which its originator was identified;
The integrity of the information and communication system in which it is recorded or
stored, including but not limited to the hardware and computer programs or software
used as well as programming errors;
The familiarity of the witness or the person who made the entry with the
communication and information system;
The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document
was based; or
Other factors which the court may consider as affecting the accuracy or integrity of the
electronic document or electronic data message (Sec. 1, Rule 7).

METHOD OF PROOF
Affidavit Evidence
All matters relating to the admissibility and evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on authentic records. The affidavit must affirmatively show the competence of the affiant to
testify on the matters contained therein (Sec.1, Rule 9).
Cross-examination of Deponent
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse party (Sec. 2, Rule 9).
BEST EVIDENCE RULE ON ELCTRONIC DOCUMENT
Original of an Electronic Document
An electronic document shall be regarded as the equivalent of an original document under the
Best Evidence Rule if it is a printout or output readable by sight or other means, shown to
reflect the data accurately (Sec.1, Rule 4).
NOTE:
The terms electronic data message andelectronic document, as defined under the
Electronic Commerce Act of 2000, do not include a facsimile transmission and cannot be
considered an electronic evidence. It is not the functional equivalent of an original under the
Best Evidence Rule and is not admissible as electronic evidence (MC Industrial Sales Corp. v.
SsangyongCorp., G.R. No. 170633, October 17, 2007).
Copies as Equivalent of the Originals
When a document is in two or more copies executed at or about the same time with identical
contents, or is a counterpart produced by the same impression as the original, or from the
same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by
other equivalent techniques which accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall NOT be admissible to the same extent
as the original if:

a. A genuine question is raised as to the authenticity of the original; or


b. In the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original (Sec. 2, Rule 4).
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
Inapplicability of the Hearsay Rule
A memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses, made by electronic, optical or other similar means at or near the time of or from
transmission or supply of information by a person with knowledge thereof, and kept in the
regular course or conduct of a business activity, and such was the regular practice to make the
memorandum, report, record, or data compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence (Sec.1, Rule 8).
Overcoming the Presumption
The presumption provided for in Section 1 of this Rule may be overcome by evidence of the
untrustworthiness of the (1) source of information OR (2) the method or circumstances of the
preparation, transmission or storage thereof.
EXAMINATION OF WITNESSES
Electronic Testimony
After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may
authorize the presentation of testimonial evidence by electronic means. Before so authorizing,
the court shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances, including the protection of the rights
of the parties and witnesses concerned (Sec. 1, Rule 10).
AUDIO, PHOTOGRAPHIC,VIDEO, AND
EPHEMERAL EVIDENCE
Requisites for Admissibility of Audio, Video and Similar Evidence
It shall be admissible, provided:
1. It shall be shown, presented or displayed to the court; and
2. It shall be identified, explained or authenticated by the person who made the recording
or by some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11).
Ephemeral Electronic Communications
Ephemeral electronic communications refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained (Sec. 1[k], Rule 2, Rules
onElectronic Evidence). It shall beprovenby thetestimony of a person who was a party to the
same or has personal knowledge thereof. In the absence or unavailability of such witnesses,
other competent evidence may be admitted (Sec. 2,Rule 11).
A recording of the telephone conversation or ephemeral electronic communication shall be
covered by the immediately preceding section. If the foregoing communications are recorded or

embodied in an electronic document, then the provisions of Rule 5 on Authentication of


Electronic Documents shall apply (Sec. 2, Rule 11).
NOTE:
If the ephemeral electroniccommunication or a telephone conversation is recorded, it now is no
longer ephemeral hence, shall be proven following the procedure provided for under Sec. 1,
Rule 11 of the Rules of Electronic Evidence.
PAROL EVIDENCE RULE
(Sec. 9, Rule 130)
Pertains to extraneous evidence or evidencealiunde, whether oral or written, which isintended
or tends to vary or contradict a complete and enforceable agreement embodied in a document.
Purpose:
To give certainty to written transactions,to preserve the reliability and to protect the sanctity of
written agreements.
Evidence of written agreements
When the terms of an agreement have been reduced to writing, it is to be 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 said written
agreement.
NOTE:
The term "agreement" includes wills.This rule forbids any addition or contradiction of the
terms of a written instrument by testimony purporting to show that different terms were
agreed upon by the parties, varying the purport of the written contract (SeaOil Petroleum Corp.
v.Autocorp Group, G.R. No. 164326, October 17, 2008).
APPLICATION OF THE PAROL EVIDENCE RULE:
Requisites for Applicability:
1. There is a valid contract;
2. The terms of the agreement are reduced to writing;
3. The agreement is between the parties and their successors in interest; and
4. There is a dispute as to the terms of said agreement.
When parol evidence can be introduced
A party may present evidence to modify, explain or add to the terms of written agreement if he
puts in issuein his pleadings:(FIVE)
1. An Intrinsic ambiguity, mistake or imperfection in the written agreement;
NOTE:
The rule allowing parol evidenceparticularly refers to an intrinsic ambiguity.
2. The Failure of the written agreement to express the true intent and agreement of the
parties thereto;

3. The Validity of the written agreement; or


4. The Existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.
NOTE:
Introducing parol evidence means offering extrinsic evidence that would modify, explain or add
to the terms of the written agreement, but it may only be allowed if the matter is put in issue in
the pleadings.
Even if there was a written agreement on a particular subject matter, the parol evidence rule
did not apply to or bar evidence of a collateralagreement between the same parties on thesame
or related subject matter, in the following instances:
a. Where the collateral agreement is not inconsistent with the terms of the written
contract (Robles v. Lizarraga Hermanos, 50Phil. 387);Where the collateral agreement has
not been integrated in and is independent of the written contract (id.), as where it is
suppletory to the original contract;
b. Where the collateral agreement is subsequent to (Filipinas Manufacturers Bankv.
Eastern Rizal Fabricators, G.R. No. 62741, 29 May 1987) or novatory of the
writtencontract (Canuto v. Mariano, 37 Phil. 840); and
c. Where the collateral agreement constitutes a condition precedent which determines
whether the written contract may become operative or effective (Henry W. Peabody &Co.
v. Bromfield, et al., 38 Phil. 841), but thisexception does not apply to a condition
subsequent not stated in the agreement.
With respect to evidence on collateral agreements, the same may be allowed provided they have
been put in issue in view of the provisions of par. (d) of Sec. 9 (Regalado).
KINDS OF AMBIGUITY
1. Intrinsic or latentambiguity when thelanguage of the writing is clear and intelligible
and suggests but a single meaning but some matter extraneous to the writing creates
the ambiguity.
2. Extrinsic or patent ambiguity that whichappears on the very face of the instrument,
and arises from the defective, obscure, or insensible language used, and requires
something to be added in order to ascertain the meaning of the words. In such case,
parol evidence is NOT admissible, otherwise the court would not thereby be construing
the contract but would be creating a contract between the parties.
3. Intermediate ambiguity refers to asituation where an ambiguity partakes of the
nature of both patent and latent ambiguity because the words of the writing, though
seemingly clear and with a settled meaning, is actually equivocal and admits of two
interpretations. Parol evidence, in such case, is admissible to clarify the ambiguity
provided that matter is put in issue by the pleader.
Falsa Demonstratio Non Nocet Cum De Corporel Constant

The legal maxim which means that false description does not vitiate a document if the subject
is sufficiently identified. The incorrect description shall be rejected as surplusage while the
correct and complete description standing alone shall sustain the validity of the writing.
Theory of Integration of Jural Acts (Previous Acts)
Previous acts and contemporaneous transaction of the parties are deemed integrated and
merged in the written agreement which they have executed. When the parties reduced their
agreement to writing, it is presumed that they have made the writing the only repository and
memorial of the truth, and whatever it is not found in the writing must be understood to have
been waived or abandoned.
However, collateraloralagreements are notprovable by parol evidence.
Collateral Oral Agreement
A contract made prior to or contemporaneous with another agreement and if oral and NOT
inconsistent with written agreement is admissible as exception to parol evidence rule.
BEST EVIDENCE
RULE
The issue is the
contents
of
a
document.

Establishes
a
preference for the
original document
over a secondary
evidence
thereof;
contemplates
the
situation
wherein
the original writing
is
not
available
and/or there is a
dispute
as
to
whether the said
writing
is
the
original.
Precludes
the
admission
of
secondary evidence
to
prove
the
contents
of
a
writing or document
if
the
original
document
is

PAROL EVIDENCE
RULE
The
issue
is
whether or not a
party is adding or
modifying the terms
of
the
written
agreement.
It is not concerned
with the primacy of
the evidence but
presupposes
that
the
original
is
available.

Precludes
the
admission of other
evidence to prove
the terms of a
document,
other
than the contents of
the document itself
for the purpose of

available, regardless
of whether or not it
varies the contents
of the original.
It can be invoked by
any litigant to an
action whether or
not said litigant is a
party
to
the
document involved.
Applies to all forms
of writing.

varying the terms of


the writing.

It can be invoked
only by the parties
to the document
and
their
successors
in
interest.
Applies to written
agreements
(contracts)
and
wills.

RULE 131
BURDEN OF PROOF AND PRESUMPTIONS
BURDEN OF PROOF AND BURDEN OF
EVIDENCE
PROOF
The establishment of a requisite degree ofbelief in the mind of the trier of fact as to the facts
in issue; the cumulation of evidence that persuades the trier of the facts.
BURDEN OF PROOF or onus probandi
The duty ofa party to present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law (Sec. 1, Rule 131). It is based on the maxim
ei incumbit probation qui dicit, no qui negat which means he who asserts, not he who
denies, must prove. (Martin v. Court of Appeals, 205 SCRA 191)
BURDEN OF EVIDENCE
Logical necessity on a partyduring a particular time of the trial to create a prima facie case in
his favor, or to destroy thatcreated against him by presenting evidence.
BURDEN OF
PROOF
Does not shift as it
remains
throughout
the
trial with the party
upon whom it is
imposed

BURDEN OF
EVIDENCE
Shifts from party to
party
depending
upon the exigencies
of the case in the
course of the trial
(when the other
party has produced
sufficient evidence
to be entitled as a

The burden of proof


is
generally
determined by the
pleadings filed by
the party.

It is on the party
who asserts the
affirmative of the
issue
at
the
beginning of the
case and continues
on him throughout
the case.
Burden
persuasion

of

matter of law to a
ruling in his favor)
The
burden
of
evidence
is
generally
determined by the
developments
of
the trial, or by the
provisions of the
substantive law or
procedural
rules
which may relieve
the
party
from
presenting evidence
on the fact alleged,
i.e. presumptions,
judicial
notice,
admissions.
Pertains
to
the
duty of a party to
go forward with the
evidence to over
throw prima facie
evidence
established against
him and passes
from party to party.
Burden of going
forward

NOTE:
In both civil and criminal cases, the BURDEN OF EVIDENCE lies on the party who asserts an
affirmative allegation.
In both civil and criminal cases, negative allegations do not have to be proved except where
such negative allegations are essential parts of the cause of action or defense in a civil case, or
are essential ingredients of the offense in a criminal case or the defenses thereto. (Regalado
citing Industrial Finance Corp. v. Tobias, GR No. L-41555)
CIVIL
CASES
Generally, the
burden
of
proof is on the
party
who
would
be
defeated if no
evidence were

CRIMINAL
CASES

given on either
side
1. The burden
of proof rests`
upon
the
plaintiff, with
respect to his
complaint;
Upon
whom the
burden of
proof
rests

2.
The
defendant
bears
the
burden
of
proof if he
raises
an
affirmative
defense which
he sets up in
answer to the
plaintiffs
cause
of
action or with
respect to his
counterclaim.

The burden of
proof is with
the
prosecution by
reason of the
presumption of
innocence.

3. The burden
of proof is on
the
crossclaimant, with
respect to his
cross-claim

Degree of
proof that
satisfies

Preponderanc
e of evidence

1. To sustain
conviction
evidence
of
guilt
beyond
reasonable
doubt
2. Preliminary
Investigation
engender a
well-founded
belief of the
fact
of
the
commission of
a crime
3. Issuance of

warrant
of
arrest

evidence
of
probable
cause,
i.e.,
that there is a
reasonable
ground
to
believe
that
the
accused
has committed
an offense

Upon
whom the
burden of
evidence
rests

The plaintiff
has to prove
his affirmative
allegations in
the complaint.
The
defendant
has to prove
the affirmative
allegations in
his
counterclaims
and
his
affirmative
defenses.

4. To warrant
the filing of
an
information
prima
facie
evidence
The
prosecution
has to prove
its affirmative
allegations in
the
information
regarding the
elements
of
the crime as
well as the
attendant
circumstances
.
The
defense
has to prove
its affirmative
allegations
regarding the
existence
of
justifying,
exempting
circumstances
,
absolutory
causes
or
mitigating
circumstances
.

PRINCIPLE OF NEGATIVATING AVERNMENTS


General rule:
Negative allegations need not beproved, whether in a civil or criminal action.
Exception:
Where such negative allegations areessential parts of the cause of action or defense in a civil
case, or are essential ingredients of the offense in a criminal case or defenses thereto.
Exceptions to the Exception:
However, in civil cases, even if the negative allegation is an essential part of the cause of
action or defense, such negative allegation does NOT have to be proved if it is only for the
purpose of denying the existence of a document which should properly be in the custody of the
adverse party.
In criminal cases, it is not incumbent upon the prosecution to adduce positive evidence to
support a negative averment, the truth of which is fairly indicated by the established
circumstances and which, if untrue, could readily be disproved by the production of
documents or other evidence probably within the defendants control or possession. (People v.
Macalaba G.R. Nos. 146284-86, Jan 20, 2003).
EQUIPOISE RULE OR EQUIPOISE DOCTRINE
The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty
and property without due process of law. (Sec. 1, Art.III, Constitution of the Philippines)
The doctrine refers to a situation where the evidence of the parties are evenly balanced or
there is doubt on which side the evidence preponderates.
The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty
and property without due process of law. (Sec. 1, Art. III, Constitution of the Philippines)
PRESUMPTIONS
Presumption
An inference of the existence or non-existence of a fact which courts are permitted to draw
from proof of other facts (In the Matter of the IntestateEstates of Delgado and Rustia, G.R. No.
175733, January 27, 2006)
NOTE:
A presumption is not evidence. Theymerely affect the burden of offering evidence (Evidence
[The Bar Lectures Series], Riano, 2009).
PRESUMPTION
OF LAW
A certain inference
must
be
made
whenever the facts
appear
which

PRESUMPTION
OF FACT
A
discretion
is
vested in a tribunal
as to the drawing
of inference.

furnish the basis of


the inference.
Reduced to fixed
rules and form
part of the system
of jurisprudence.

Derived wholly and


directly
from
circumstances
of
the particular case
by
means
of
common
experience
of
mankind.
(Regalado)

CLASSES OF PRESUMPTION
1. Presumption of Law (praesumptiones juris)
An assumption which the law requires to be made from a set of facts; a deduction which
the law expressly directs to be made from particular facts.
2. Presumption of Facts (praesumptioneshominis)
An assumption is made from thefacts without any direction or positive requirement of a
law; a deduction which reason draws from the facts proved without an express direction
to that effect.
CLASSES OF PRESUMTION OF LAW
1. Conclusive Presumption (absolute or juris et de jure)
One which cannot be overcomeby evidence to the contrary (Sec. 2, Rule 131).
2. Disputable Presumption (rebuttable or juristantum or prima facie)
One which issatisfactory if uncontradicted, but may be contradicted and overcome by
other evidence. (Sec. 3, Rule 131)
Effect of a Presumption
A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. One need not introduce in evidence to prove the fact
for a presumption is prima facie proof of the fact presumed (Diesel Construction Co., Inc. v.
UPSIProperty Holdings, Inc., G.R. No. 154937, March 24, 2008).
CONCLUSIVE PRESUMPTIONS
(Presumptions juris et de jure)
(Sec. 2, Rule 131)
Conclusive Presumptions
When the presumption becomes irrebuttable upon the presentation of the evidence and any
evidence tending to rebut the presumption is not admissible. (Riano, 2013)
CLASSES OF CONCLUSIVE PRESUMTION
1. Estoppel in pais
Whenever a party has, by hisown declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing is true, and to act upon such belief,

he cannot, in any litigation arising


be permitted to falsify it.

out

of

such declaration, act or omission,

Elements of Estoppel in pais as to Party Estopped:


a. Conduct amounting to false representation or concealment of material facts, or at least
calculated to convey the impression that the facts are otherwise than, and inconsistent
with those which the party subsequently attempted to assert;
b. Intent or at least expectation that the conduct shall be acted upon by, or at least
influence the other party; and
c. Knowledge, actual or constructive, of the real facts.
Elements of Estoppel in Pais as to Party Claiming Estoppel:
a. Lack of knowledge and of the means of knowledge of the truth as to the facts in question;
b. Reliance in good faith, upon the conduct or statement of the party to be estopped; and
c. The action or inaction based thereon is of such character as to change the position or
status of the party claiming the estoppel, to his injury, detriment, or prejudice.
2. Estoppel Against Tenant: The tenant is notpermitted to deny the title of his landlord at
the time of the commencement of the relation of landlord and tenant between them.
NOTE:
What a tenant is estopped from denying isthe title of his landlord at the time of the
commencement of the landlord-tenant relation. If the title is one that is alleged to have been
acquired subsequent to the commencement of that relation, the presumption will not apply.
The tenant may show that the landlords title has expired or been conveyed to another or to
himself.
DISPUTABLE PRESUMPTIONS
(Presumptions juris tantum)
(Sec. 3, Rule 131)
Disputable Presumptions
If the presumptions may be contradicted or overcome by other evidence. These are satisfactory,
if uncontradicted and overcome by other evidence.
Examples of Disputable Presumptions:
a. That evidence willfully suppressed wouldbe adverse if produced
Requisites:
i.
That the evidence is material;
ii.
That the party had the opportunity to produce the same; and
iii.
That the said evidence is available only to said party.
NOT APPLICABLE:
1. The suppression is not willful;
2. The evidence that is withheld is merely corroborative or cumulative;
3. The evidence is at the disposal of or equally available to both parties;
4. The suppression is an exercise of a privilege.

b. That a person found in possession of athing taken in the doing of a recent wrongful act
is the taker and the doer of the whole act; otherwise, that things which a person
possesses, or exercises acts of ownership over, are owned by him.
Requisites:
i.
The crime was actually committed;
ii.
The crime was committed recently;
iii.
The stolen property was found in the possession of the accused; and
iv.
The accused is unable to satisfactorily explain his possession thereof.
c. That a letter duly directed and mailed wasreceived in a regular course of the mail.
Requisites:
i.
The letter was properly addressed with postage prepaid, and
ii.
That it was actually mailed.
d. Presumptions of Death
1. Absence of seven (7) years If it is unknownwhether or not the absentee is still
alive, he is considered dead for allpurposes but not for the purpose of
succession.
2. Absence of ten (10) years The absentee shallbe considered dead for the
purpose of opening his succession only after an absence of ten (10) years. Before
the lapse of ten (10) years, he shall not be considered dead if the purpose is the
opening of his succession.
3. Absence of five (5) years In relation to theimmediately preceding number, if
the absentee disappeared after the age of seventy-five (75) years, his absence for
five (5) years is sufficient for the purpose of opening his succession in which
case, it is not necessary to wait for the lapse of 10 years
4. Absence of four (4) years A person isdeemed considered dead for all purposes
even for the purpose of the division of his estate among his heirs under certain
extraordinary circumstances after a relatively shorter time that any of the above
periods, in any of the following cases:
NOTE:
If the person is on board a vessel that was not shown who died first, and there are no
particular circumstances from which it can be inferred, the survivorship is determined from
the probabilities resulting from strength and age of the sexes.
e. That if there is a doubt, as between twoor more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, they shall be considered to have
died at the same time.
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
a. The electronic signature is that of the person to whom it correlates;

b. The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or to
indicate such person's consent to the transaction embodied therein; and
c. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6, Rules onElectronic Evidence).
Disputable
Presumptions Relating to Digital Signatures
Upon the authentication of a digital signature, it shall be presumed, in addition to those
mentioned above, that:
a. The information contained in a certificate is correct;
b. The digital signature was created during the operational period of a certificate;
c. No cause exists to render a certificate invalid or revocable;
d. The message associated with a digital signature has not been altered from the time it
was signed; and
e. A certificate had been issued by the certification authority indicated therein. (Sec. 3,
Rule 6, Rules on Electronic Evidence)
QUANTUM OF EVIDENCE
PROOF BEYOND REASONABLE DOUBT
It does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required (Sec. 2,Rule 133).
Moral Certainty
That degree of proof which produces conviction in an unprejudiced mind; a certainty that
convinces and satisfies the reason and conscience of those who are to act upon it.
Reasonable Doubt
It does not refer to any doubtor a mere possible doubt but that state of the case which, after a
comparison of all the evidence, does not lead the judge to have in mind, a moral certainty.
Rules:
a. Accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
b. Moral certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
c. An extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti (Sec. 3, Rule 133).
Totality of circumstances test
This is used regarding the admissibility and reliability of out-of-court identification of suspects.
The following are the factors:
a. The witness opportunity to view the criminal at the time of the crime;
b. The witness degree of attention at that time;
c. The accuracy of any prior description given by the witness;
d. The level of certainty demonstrated by the witness at the identification;

e. The length of time between the crime and the identification; and
f. The suggestiveness of the identification procedure (People v. Teehankee, Jr., G.R.
Nos.111206-08, 6 Oct. 1995).
Danger Signs that the identification may be erroneous even though the method used is proper
(NOT EXHAUSTIVE):
a. The witness originally stated that he could not identify anyone;
b. The witness knew the accused before the crime but made no accusation against him
when questioned by the police;
c. A serious discrepancy exists between the witness original description and his actual
description of the accused;
d. Before identifying the accused at the trial, the witness erroneously identified some
other person;
e. Other witnesses of the crime fail to identify the accused;
f. Before trial, the witness sees the accused but fails to identify him;
g. Before the commission of the crime, the witness had limited opportunity to see the
accused;
h. The witness and the person identified are of different racial groups;
i. During his original observation of the offender, the witness was unaware that a crime
was involved;
j. A considerable time elapsed between the witness view and his identification of the
accused;
k. Several persons committed the crime; and
a. The witness failed to make a positive trial identification (People v. Pineda, G.R. No.141644,
27 May 2004 citing Patrick M. Wall, Eyewitness Identification in Criminal Cases 74).
Corpus delicti
It is the actual commission by someone of the particular crime charged.
It is a common fact made up of two things:
1. The existence of a certain act or result forming the basis of the criminal charge; and
2. The existence of a criminal agency as the cause of the act or result.
The identity of the accused is not a necessary element of the corpus delicti (16 C.J.S. 771).
The corpus delicti is proved when the evidence onrecord shows that the crime prosecuted had
been committed (People v. Santos, et al., CA-G.R. No. 3767, 8 May 1950).
There must be independent proof of the corpusdelicti. The evidence may be circumstantial
but,just the same, there should be some evidence substantiating the confession (U.S. v. De la
Cruz, 2Phil. 148).
The expression corpus delicti means that there should be some evidence apart from the
confession tending to show the commission of the crime (People v. Bantagan, et al., 54
Phil.834).
Circumstantial Evidence, when sufficient
Circumstantial evidence is sufficient for conviction if:
a. There is more than one circumstance;

b. The facts from which the inferences are derived are proven;
c. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt; and
d. The fact on which the inference may be legitimately rest must be established by direct
evidence. (People v. Usis, 3 Phil. 373; People v. Dino, 46 Phil. 295) An inference cannot be
based on another inference. (U.S. v. Ross, 92 P ed. 281)
In order to convict a person accused of a crime on the strength of circumstantial evidence
alone, it is incumbent upon the prosecution to present such circumstantial evidence which will
and must necessarily lead to the conclusion that the accused is guilty of the crime charged
beyond reasonable doubt, excluding all and each and every reasonable hypothesis consistent
with his innocence (People v. Tan-Choco, 76 Phil. 463).
Not only the prior and coetaneous actuations of the accused in relation to the crime but also
his acts or conduct subsequent thereto can be considered as circumstantial evidence of guilt
(Regalado).
While the motive of the accused is generally immaterial not being an element of the crime, such
motive becomes important when the evidence of the crime is purely circumstantial.
PREPONDERANCE OF EVIDENCE
By a preponderance of evidence is meant simply evidence which is of greater weight, or more
convincing, than that which is offered in opposition to it (32 C.J.S.) In civil cases, the party
having the burden of proof must establish his case by preponderance of evidence (Sec. 1,
Rule133). In simple terms, it meansgreater or superior weight of evidence
In determining where the preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstances of the case:
l. the witnesses' manner of testifying;
m. their intelligence;
n. their means and opportunity of knowing the facts to which there are testifying;
o. the nature of the facts to which they testify;
p.
the probability or improbability of their testimony;
q. their interest or want of interest;
r. their personal credibility so far as the same may legitimately appear upon the trial;
s. the court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.
NOTE: It is the greater weight of evidence, notnecessarily established by the greater number of
witnesses testifying to a fact but by evidence that has the most convincing force.
SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a reasonable mind might accept as adequate to justify
a conclusion (Sec. 5, Rule 133).
NOTE:
In a petition for Writ ofAmparo, theparties shall establish their claims by substantial evidence
(Sec. 17, Rule on the Writ of Amparo,effective October 24, 2007).

Rules:
a. Applicable to cases filed before administrative or quasi-judicial bodies.
b. A fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
CLEAR AND CONVINCING EVIDENCE
Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or
conviction as to allegations sought to be established.
NOTE: In his separate opinion inPurganan, thenAssociate Justice then later Chief Justice
Reynato S. Puno, proposed that a new standard which he termed clear and convincing
evidence should be used in granting bail in extradition cases. According to him, this standard
should be lowerthan proof beyond reasonable doubt but higher than preponderance of evidence
(Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19,
2007).
Factors in the evidentiary weight of Electronic Evidence
1. Realiability of the manner in which it was generated, stored or communicated;
2. Realibility of the manner in which the originator was identified
3. Integrity of the information and communication system;
4. Familiarity of the witness or the person who made the entry with the communication
and information system;
5. Nature and quality of the information and communication system;
6. Other factors which the court may consider.
All matters relating to the admissibility and evidentiary weight of the electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on the authentic record.
The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right of the adverse party.
RULE 132
AUTHENTICATION AND PROOF OF
DOCUMENTS
AUTHENTICATION
The introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it to be; that which is necessary to establish the
genuineness of a document.
DOCUMENT

A deed, instrument or other duly authorized paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, 31 SCRA 764)
NOTE:
For documents to be considered as documentary evidence, it must be offered as proof of their
contents. (Sec. 2, Rule 130). If the document is not offered for that purpose, the documents is a
mere object evidence as when the purpose is merely to prove its existence.
CLASSES OF DOCUMENTS (Sec. 19, Rule 132)
1. Public Documents
a. The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or
of a foreign country;
b. Documents acknowledged before a notary public except last wills and
testaments;
c. Public records kept in the Philippines, of private documents required by law to
be entered therein; and
d. A document electronically notarized in accordance with the rules promulgated
by the Supreme Court (Rules onElectronic Evidence, A.M. No. 01-7-01-SC).
2. Private documents
All other writings are private.
NOTE:
The classification of documents intoofficial, public, commercial and private documents under
the Revised Penal Code is different. But when these types of documents are offered in
evidence, they fall into either public or private documents.
Under the rules of evidence, official documents are public documents (Sec. 19) and governed
by Sec. 30 while commercial and private documents would fall under private documents
except private documents required by law to be entered in public records are considered as
public documents and are subject to Sec. 27, Rule 132.
When
a.
b.
c.

authentication of document not required


the writing is an ancient document, under the requisites of Sec. 21;
the writing is a public document or record under Sec. 19;
it is a notarial document acknowledged, proved or certified in accordance with Sec. 30;
or
d. the authenticity and due execution of the document has been expressly or impliedly
admitted by a failure to deny the same under oath, as in the case of actionable
documents

PROOF OF AUTHENTICITY
PROOF OF PRIVATE DOCUMENT (Sec. 20, Rule132)
PRIVATE DOCUMENT

The due execution and authenticity must be proved:


a. By anyone who saw the document executed or written; or
b. By evidence of the genuineness of the signature or handwriting of the maker.
NOTE:
The manner of authenticating a documentrequired by Sec. 20, Rule 132, applies only when a
private document is offered as authentic as when it is offered to prove that the document was
truly executed by the person purported to have made the same.
WHEN EVIDENCE BY AUTHENTICITY OF PRIVATE DOCUMENT NOT NECESSARY (Sec. 21,
Rule 132)
ANCIENT DOCUMENT
Requisites:
a. It is more than thirty (30) years old at the time it is introduced in evidence;
b. It is produced from a custody in which it would naturally be found if genuine; and
c. It is unblemished by any alterations or circumstances of suspicion.
ACTIONABLE DOCUMENT
An actionable document must be pleaded:
a. By reciting the substance of the document in the pleading and attaching to the pleading
a copy of that document; or
b. Without attaching the document to the pleading, by reciting into the pleading the entire
text of the document (Sec. 7, Rule 8).
NOTE:
The genuineness and due execution of thedocument are deemed admitted when NOT denied
under oath by the party against whom it was pleaded. It is not even necessary to formally offer
it in evidence (Sec. 8, Rule 8).
HOW GENUINENESS OF HANDWRITING PROVED (Sec. 22, Rule 132)
The authenticity and due execution of aprivate document are proved, inter alia, by evidence of
the genuineness of the handwriting of the maker (Sec. 20, Rule 132).
The genuineness of handwriting may be proved:
a. By any witness who believes it to be the handwriting of such person because he has
seen the person write or he has seen writing purporting to be his upon which the
witness has acted or been charged.
b. By a comparison, made by the witness or the court with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to be genuine to
the satisfaction of the judge.
This provision does not require experttestimony to prove the handwriting of a person. A
handwriting is proved by:
a. A witness who actually saw the person writing the instrument (Sec. 20[a]);
b. A witness familiar with such handwriting (Sec.22) and who can give his opinion
thereon,such opinion being an exception to the opinion rule (Sec. 50[b], Rule 130);

c. A comparison by the court of the questioned handwriting and admitted genuine


specimens thereof (Sec. 22); and
d. Expert evidence (Sec. 49, Rule 130) (Regalado).
NOTE:
Sec. 22 merely enumerates the methods of proving handwriting but does not give preference or
priority to a particular method (Lopez v. CA, etal., G.R. No. L-31494, 23 Jan. 1978).
PROOF OF OFFICIAL RECORD (Sec. 24, Rule 132)
The record of a public document may be evidenced by:
1. Domestic Record (record kept in the Philippines); an official publication; or by a copy of
the document with the attestation the officer having legal custody of the record, or his
deputy;
2. Foreign Record (record kept in a foreign country); by an official publication; or by a copy
of the document with the attestation the officer having legal custody of the record, or
his deputy and accompanied by a certificate by a secretary of the embassy or legation,
consul general, consul, vice-consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
ATTESTATION OF A COPY
The attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official capacity of
the attesting officer, if there be any, or if he be the clerk of court having a seal, under the seal
of such court (Sec.25, Rule 132).
NOTE:
The certificate and attestation are requiredbecause of the general rule on the irremovability of
public records.
Where the special power of attorney is executed and acknowledged before a notary public or
other competent officer in a foreign country, it cannot be admitted in evidence in Philippine
courts unless it is certified as such in accordance with Sec. 24, Rule 132 by a secretary of the
embassy or legation, consul-general, consul, vice consul, consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept of
said public document and authenticated by the seal of his office (Lopez v. CA, G.R. No. 77008,
Dec. 29, 1987;Heirs of Medina v. Natividad, G.R. No. 177505, Nov. 27, 2008).
IRREMOVABILITY OF PUBLIC RECORD (Sec. 26, Rule 132)
General rule
Any public record, an official copyof which is admissible in evidence, must not be removed from
the office in which it is kept.
Exception
It may be removed upon order of acourt where the inspection of the record is essential to the
just determination of a pending case.

PUBLIC RECORD OF A PRIVATE DOCUMENT (Sec. 27, Rule 132)


It may be proved by:
a. The original record; or
b. A copy thereof attested by the legal custodian of the record and accompanied by an
appropriate certificate that such officer has the custody.
What is considered a public document is not the private writing, but the public record thereof.
So, if a private writing itself is inserted officially into a public record, its recordation or
incorporation into the public records becomes a public document, but that does not make the
private writing itself a public document so as to make it admissible without certification
(Republic v. Worldwide Insurance & Surety Co., et al., [CA], 62 O.G. 8857).
PROOF OF LACK OF RECORD (Sec. 28, Rule 132)
Consists of written statement signed by an officer having custody of an official record or by his
deputy stating that after diligent search no record or entry of a specified tenor is found to exist
in the records of his office and accompanied by a certificate that such officer has the custody of
official records.
HOW JUDICIAL RECORD IMPEACHED (Sec. 29, Rule 132)
JUDICIAL RECORD
The record of judicialproceedings. It does not only include official entries or files or the official
acts of a judicial officer but also the judgment of the court.
A judicial record is admissible in evidence in a subsequent action if it is relevant to an issue
involved therein.
Grounds for Impeaching a Judicial Record
A judicial record may be impeached by evidence of:
a. Want of jurisdiction;
b. Collusion between the parties; or
c. Fraud in the party offering the record, in respect to the proceedings
PROOF OF NOTARIAL DOCUMENTS (Sec. 30, Rule132)
NOTARIAL DOCUMENT
One duly acknowledgedbefore a notary public. It is a public document. A recital in the
certificate of acknowledgment is prima facie evidence of the execution of theinstrument or
document involved.
To overcome recitals in a notarial document, evidence must be clear, convincing and beyond a
mere preponderance (Monteverde v. Infante, 45 O.G. No. 1313).
Every instrument duly acknowledged or proved and certified as provided by law may be
presented in evidence without further proof, the certificate of acknowledgment being prima
facie evidence of the execution of the instrument or document involved.
Proof of Electronically Notarized Document

A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court (Sec. 3, Rule 5, Rules onElectronic Evidence).
NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
The probative value of public instruments depends on the kind of document that is presented
in evidence (Dupilas v. Cabacungan, 30 Phil. 354).
HOW TO EXPLAIN ALTERATION IN A DOCUMENT (Sec. 31, Rule 132)
The party producing a document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute, must account for the
alteration. He may show that:
a. the alteration was made by another, without his concurrence;
b. was made with the consent of the parties affected by it;
c. was otherwise properly or innocent made; or
d. that the alteration did not change the meaning or language of the instrument.
If he fails to do that, the document shall not be admissible in evidence.
A party presenting the writing should account for the alteration when he introduces the paper
inevidence, and not endeavor to explain thealteration afterwards (Vda. De Bonifacio, et al. v.
B.L.T. Bus Co., Inc., 34 SCRA 618).
If a change is shown to have been made after the execution of the instrument, it will be
presumed to have been made by the party producing it, or with his privity and fraudulently in
so far as legal fraud attaches to a willful change of an instrument by one of the parties thereto,
and the burden is upon him to show that the alteration was not made by him, or by those
under whom he claims, or with his or their privity or consent (3 C.J.S. 992).
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE (Sec. 33, Rule 132)
General rule
Documents written in an unofficiallanguage shall NOT be admitted as evidence.
Exception
When the documents areaccompanied with a translation into English or Filipino.
QUALIFICATION OF A WITNESS
WITNESS
One who, being present, personallysees or perceives a thing; a beholder, spectator or
eyewitness; one who testifies to what he has seen or heard, or otherwise observed.

PROSECUTION WITNESS
A person who is not anaccused and who is called to testify relating to a criminal case.
STATE WITNESS
One of two or more personsjointly charged with the commission of a crime but who is
discharged with his consent so that he can be a witness for the state.
WITNESSES; THEIR QUALIFICATIONS (Sec. 20, Rule 130)
All persons who can perceive, and perceiving, can make known their perception to others may
be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime shall
NOT be a ground for disqualification unless otherwise provided by law.
QUALIFICATIONS OF A WITNESS
1. He can perceive; and in perceiving,
2. He can make known his perception to others (Sec. 20, Rule 130);
3. He must take either an oath or affirmation (Sec. 1, Rule 132); and
4. He must not possess the disqualifications imposed by the law or the rules.
NOTE:
The ability to make known the perception of the witness to the court involves two factors:
a. the ability to remember what has been perceived; and
b. the ability to communicate the remembered perception
Consider
a
oath and who has
event which he is
Evidence, 2009)
NOTE:
A
prospective
has the following
a. To
quality of
b. To
testimonial
c. To Relate
narration
d. To
Truth

sincerity.

COMPETENCE
A matter of law or
a matter of rule.
In deciding the
witness
competence,
the
court
will
not
inquire into the
trustworthiness of
a witness.
It has reference to
the
basic
qualifications of a
witness
as
his
capacity
to
perceive
and
communicate his
perceptions
to
others.
It
also
includes
the
absence of any of
the
basic
qualifications
imposed upon a
witness.

CREDIBILITY
It has nothing to
with the law or
with the rules.
It is the weight and
trustworthiness or
reliability of the
testimony.

It refers to the
believability of a
witness.

witness who has taken the


personal knowledge of the
going
to
testify.
(Riano,

witness must show that he


abilities.
observe the testimonial
perception;
Remember

the
quality of memory
the testimonial quality of
Recognize a duty to tell the
the

testimonial

quality

of

Factors that do not affect the


competency of a witness:
a. Religious belief;
b. Political belief;
c. Interest in the outcome of the case;
or
d. Conviction
of
crime,
unless
otherwise provided by law.
Persons disqualified to be a witness:
1. Disqualified by reason of his mental
incapacity or immaturity (Sec. 21,
Rule130);
2. Disqualified by reason of marriage
(Sec. 22,Rule 130);
3. Disqualified by reason of death or
insanity of adverse party (Sec. 23,
Rule 130);
4. Disqualified by reason of privileged
communication (Sec. 24, Rule 130);
or
5. When disqualified by law or these
Rules (e.g.,Art. 821, Civil Code of
the Philippines).

NOTE:
The
qualifications
and
disqualifications
ofwitnesses
are
determined as of the time the witnesses
are produced for examination in court or at
the
taking
of
their
depositions
(Regalado,Florenz.
D.
Remedial
Law
Compendium Vol. II, 2008.
NOTE: Questions concerning the credibility of
awitness are best addressed to the sound
discretion of the trial court as it is in the best
position to observe his demeanor and bodily
movements.
Voir Direliterally means to speak the truth.
Voir
Dire
Examinationthe
preliminaryexamination under oath where

the witness is presented to answer as to


his competency.
DISQUALIFICATIONS OF WITNESSES
DISQUALIFICATION BY REASON OF
MENTAL INCAPACITY OR IMMATURITY
(Sec. 21, Rule 130)
Disqualification by Reason of Mental
Incapacity
Requisites:
a. The person must be incapable of
intelligently making known his
perception to others; and
b. His incapability must exist at the
time
of
his
production
for
examination.
NOTE:
Amental retardate is not for this reason
alone disqualified from being a witness. As
in thecase of other witnesses, acceptance of
his testimony depends on its nature and
credibility or, otherwise put, the quality of
his perceptions and the manner he can
make them known to the court. (People vs.
Salomon, GR. No. 96848January 21, 1994)
A deaf-mute is not incompetent as awitness.
All persons who can perceive, and
perceiving,
can
make
known
their
perception to others, may be witnesses.
Deaf-mutes are competent witnesses
where they:
1. can understand and appreciate the
sanctity of an oath;
2. can comprehend facts they are going
to testify on; and
3. can
communicate
their
ideas
through a qualified interpreter.
(People vs Aleman, G.R. No. 181539,
July 24, 2013)
Disqualification by Reason of Immaturity

Requisites:
a. The mental maturity of the witness
must render him incapable of
perceiving the facts respecting which
he is examined;
b. He is incapable of relating his
perception truthfully;
c. His incompetency must occur at the
time the witness perceives the event
including his incapability to relate his
perceptions truthfully.
NOTE:
The rule on disqualification by reason
ofimmaturity must however, be construed in
relation to the Rule on Examination of a Child
Witness (A.M. No. 00-4-07-SC, Effective Dec.
15,2000).
The
requirements
then
of
a
competency as a witness are the:
a. capacity of observation,
b. capacity of recollection, and
c. capacity of communication.

child's

And in ascertaining whether a child is of


sufficient intelligence according to the
foregoing requirements, it is settled that the
trial court is called upon to make such
determination. (Peoplevs. Mendoza, GR. No.
113791, February 22, 1996)
As long as the witness can convey ideas by
words or signs and give sufficiently intelligent
answers to questions propounded, he is a
competent witness even if he is feeble-minded
(People v. De Jesus, L-39087, 27 April 1984) or
is a mental retardate(People v. Palma, G.R. No.
69152, 23 Sept. 1986) or is a schizophrenic
(People v. Baid, G.R. No.129667, 31 July 2000)
(Regalado).
DISQUALIFICATION BY REASON OF
MARRIAGE
(Sec. 22, Rule 130)
MARITAL DISQUALIFICATION RULE

During their marriage, neither husband nor


wifemay testify for or against the other
without the consent of the affected spouse.
NOTE:
The benefit of the rule
waivedimpliedly or expressly.

may

be

Requisites:
a. The marriage is valid and existing as
of the time of the offer of testimony;
b. Either spouse must be a party to the
case;
c. No consent was obtained from the
spouse-party; and
d. The controversy is not a civil case by
one spouse against the other, or a
criminal case for a crime committed
by one against the other or the
latters
direct
descendants
or
ascendants.
Exception
In a civil case by one against the other, or in
a criminal case for a crime committed by
one against the other or the latters direct
descendants or ascendants.
NOTE:
The right to invoke this disqualification is
apersonal one and it belongs to the partyspouse. Therefore, he or she alone can claim
or waive it.
Reasons for the rule:
a. There is identity of interests between
the husband and wife.
b. If one were to testify for or against
the other, there is consequent
danger of perjury.
c. To
guard
the
security
and
confidences of private life and to
prevent domestic disunion.
d. Where there is want of domestic
tranquility, there is danger of
punishing one spouse through
hostile testimony of the other.

e. The societys intent to preserve the


marriage
relations
and
promote
domestic peace.
When an offense directly attack or directly
and vitally impairs, the conjugal relation, it
comes within the exception to the statute that
one shallnot be a witness against the other
except in a criminal prosecution for a crime
committed (by) one against the other (Ordonio
v. Daquigan, L-39012, 31 Jan. 1975 citing
Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25
Okl. 314).
DISQUALIFICATION BY REASON OF
DEATH OR INSANITY OF ADVERSE
PARTY
(Sec. 23, Rule 130)
DEADMANS STATUTE OR SURVIVORSHIP
DISQUALIFICATION RULE
It provides that if one party to the alleged
transaction is precluded from testifying by
reason of death, insanity or other mental
disabilities, the surviving party is not entitled
to undue advantage of giving his own
uncontradicted and unexplained account of
the transaction.
Purpose
To discourage perjury and protect theestate
from fictitious claims.
NOTE:
This rule applies only to a civil case or
aspecial proceeding (Regalado, Remedial
LawCompendium, Vol. II, 2008 ed.).
Requisites:
a. The witness offered for examination is
the plaintiff or assignor of a party to a
case or is a person in whose behalf a
case is prosecuted;
b. The case is against an executor or
administrator or other representative
of a deceased person or of unsound
mind;

c. The case is upon a claim or demand


against the estate of such person
who is deceased or of unsound
mind; and
d. The testimony to be given is on any
matter of fact occurring before the
death of such deceased or before
such person became of unsound
mind.
Exceptions:
1. Ordinary witness;
2. When
the
plaintiff
is
a
corporation,
the
officers
or
stockholders are not disqualified;
3. When there is an imputation of
fraud against the deceased, the
plaintiff is not barred from testifying
to such fraud;
4. When the plaintiff is the executor,
administrator or legal representative
of the deceased, or a person of
unsound mind, the defendant is free
to testify against the plaintiff (Razon
v. IAC, 207 SCRA 234);
5. When the survivors testimony refers
to a negative fact;
6. When the survivors testimony is
favorable to the deceased;
7. When the executor or administrator
waives the benefit of the rule; and
8. When the transaction which gives
rise to the claim was transacted to
by the plaintiff and an agent of the
deceased.
NOTE:
It is not applicable to bar corporate
officersor stockholders from testifying in
support of a claim of the corporation or to
testimony concerning a conversation with
the deceased president of a defendant
corporation, as none of these persons is a
party or assignor of a party.
Persons Entitled to Invoke the Protection
of the Dead Mans Statute

1. The executor, administrator and any


other representative of a deceased
person, when they are the defendants
in a claim against the estate of the
deceased.
2. A person of unsound mind in a claim
filed against him.
Since the purpose of this rule is to discourage
perjury and protect the estate from fictitious
claims, the prohibition does not apply, even if
all the four requisites above are present,
where the testimony is offered to prove a
claim less than what is established under a
written document (Icard v. Masigan, et al., 71
Phil. 419), or is intended to prove a fraudulent
transaction of the deceased (Ong Chua v.
Carr, 53 Phil. 975), providedsuch fraud is first
establishedaliunde (Babao v. Perez, 102 Phil.
756).
Meaning of assignors
Assignor of a cause of action which has arisen
and not the assignor of the right before any
cause of action has arisen (Herrera).
Meaning of Representative
If a party is so placed in a litigation that he is
called upon to defend that which he has
obtained from a deceased person, and make
the defense which the deceased might have
had, if living, or to established a claim which
A: False. The said rule bars only partiesplaintiff and their assignors, or persons
prosecuting a claim against the estate of a
deceased; it does not cover Maria who is a
mere
witness.
Furthermore,
the
disqualification is in respect of any matter
of fact occurring before the death of said
deceased (Sec. 23, Rule 130, Rules of Court,
Razon v. Intermediate Appellate Court, 207
SCRA 234 [1992]). It is Pedro who filed the
claim against the estate of Jose.
SURVIVORSHIP
DISQUALIFICATIO

MARITAL
DISQUALIFICATIO

the deceased might have been interested to


establish, if living, then he may sais in that
litigation to represent a deceased person;
but where he is not standing in the place of
the deceased person, and asserting a right
of the deceased is, where the right of the
deceased himself, at the time of his death,
is not in any way involved), and the question
is not what was the right of the deceased at
the time of his death, but merely to whom
has the right descended, in a such a contest
neither party can be said to represent the
deceased. (Go Chi Gun v. Co Cho, G.R. No. L5208, 28 February 1955 citing McCoy vs.
Conrad, 64 Neb. 150, 89 N. W. 665)
Waiver of the Rule
The survivorship disqualification rule is
intended to benefit the estate of the
deceased or insane person, hence, this
protection may be waived by:
a. Failing to object to the testimony;
b. Cross-examining the witness on
the prohibited testimony (Santos v.
Santos, 366SCRA 395); or
c. By offering evidence to rebut the
testimony.
Q: True or False. The surviving parties rule
bars Maria from testifying for the claimant
as to what the deceased Jose had said to
her, in a claim filed by Pedro against the
estate of Jose. Explain. (Bar 2007)
N RULE
Partial
disqualification as
the witness is only
prohibited
from
testifying matters of
fact
occurring
before the death of
a deceased person
or
before
such
person
become
insane.
Applies only to a
civil case or a

N RULE
Complete
and
absolute
disqualification.

Applies to a civil or
criminal
case

special proceeding
over the estate of a
deceased or insane
person.

subject to exception.

NOTE:
If death has closed the lips of one party,the
policy of the law is to close the lips of the
other party (Goni v. CA, GR No. L-77434,
23September 1986). This is to prevent
thetemptation to perjury.
PRIVILEGED COMMUNICATIONS
(Sec. 24, Rule 130)
PRIVILEGED COMMUNICATION RULE
A rule of law that, to protect a particular
relationship or interest, either permits a
witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone, usually one of the
parties, to prevent the witness from
revealing certain information.
Kinds of Privileged Communications:
1. Marital Privilege Rule (Sec. 24 [a],
Rule 130)
2. Attorney-Client Privilege (Sec. 24 [b],
Rule130)
3. Physician-Patient Privilege (Sec. 24
[c], Rule130)
4. Priest/Minister-Penitent
Privilege
(Sec. 24 [d],Rule 130)
5. Privileged
Communications
to
Public Officers (Sec. 24 [e], Rule 130)
6. Editors cannot be compelled to
disclose the source of published
news (R.A. 53, asamended by R.A.
1477)
7. Trade secrets
8. Voters may not be compelled to
disclose for whom they voted;
9. Information contained in tax census
returns;
10. Bank deposits (Air Philippines v.
Penswell, Inc.G.R. No. 172835, Dec.
13, 2007)

11. Information made at conciliation


proceedings (Art. 233, Labor Code)
MARITAL PRIVILEGED RULE
Requisites:
a. There must be a valid marriage
between the husband and wife;
b. The privilege is invoked with respect
to
a
confidential
information
between the spouses during said
marriage; and
c. The spouse against whom such
evidence is being offered has not
given his/her consent to such
testimony.
Exceptions
1. In a civil case instituted by one
against the other, and
2. In a criminal case for a crime
committed by one against the other
or the latters direct descendants or
ascendants.
NOTE:
The
exceptions
under
the
MaritalDisqualification Rule (Sec. 22, Rule
130) and Marital Privileged Communication
Rule (Sec.24[a], Rule 130) are the same.
When Communication Heard By Third
Persons
a. Communication overheard by a
third person without the knowledge
of the spouses is still confidential.
However, the third party is not
disqualified.
b. Communication
made
in
the
presence of thirdpersons including
children of the family with their
knowledge, is NOT confidential.
However, where it is uttered in the
presence of children of the family
who are too young to understand
what is said, the communication is
confidential (Evidence,Riano, 2009).

Where there is collusion and voluntary


disclosure to third party, the latter
becomes an agent and cannot testify
(Herrera).
The privilege continues even after death,
unless it is a dying declaration (U.S. v.
Antipolo, 37 Phil.726).
MARITAL
DISQUALIFICATION
RULE
(Sec. 22, Rule 130)
Covers all the facts,
occurrences
or
information relating
to the pother spouse
received prior to or
during the marriage.
It
only
applies
during the marriage.
Requires that the
spouse against for or
whom the testimony
is offered is a party
to the action.
It
constitutes
a
prohibition against
any testimony for or
against the partyspouse.

Ceased
after
dissolution
of
marriage.
Absolute
disqualification.

MARITAL
PRIVILEGED
COMMUNICATION
(Sec. 24[a], Rule
130)
Covers confidential
communications
received by one
spouse from the
other
spouse
during
the
marriage.
It applies during
and
after
the
marriage.
Neither
spouse
need not be a party
to the action.

What is prohibited
is the examination
of one spouse to
protect
the
confidential
communication
between
the
spouses.
Lasts even after the
death of either of
the spouses.
Partial
disqualification as
it applies only to
confidential
communications
between
the
spouses.

ATTORNEY-CLIENT PRIVILEGED RULE


Requisites:
a. There is an attorney and client
relation
or with
a view to
professional
employment
There
must be a communication made by
the client to the attorney or an
advice given by the attorney to his
client;
b. The communication or advice must
have been given in confidence;
c. The communication or advice must
have been given either in the course
of the professional employment or
with
a
view
to
professional
employment;
d. The client has not given his consent
to the attorneys testimony thereon.
For the privilege to apply, the attorney must
have been consulted in his professional
capacity, even if no fee has been paid
therefor. Preliminary communications made
for the purpose of creating the attorneyclient relationship are within the privilege
(Regalado citing 8 Wigmore 587).
The communications covered by the
privilege include: (a) verbal statements (b)
and documents or papers entrusted to the
attorney, and (c) of facts learned by the
attorney through the act or agency of the
client.
The communication is NOT deemed lacking
in
confidentiality
because
the
communication is transmitted by electronic
means.
The Privilege does NOT apply to:
1. Communications
which
are
intended to be made public;
2. Intended to be communicated to
others;
3. Intended for unlawful purpose;
4. Received from third persons not
acting in behalf or as agent of the
client;

5. Made in the presence of the third


parties who are strangers to the
attorney-client relationship.
Communications regarding a crime already
committed, made by the offender to an
attorney, consulted as such are privileged
communications while communications on
clients contemplated or future criminal act,
or in aid or furtherance thereof, are not
covered by the privilege.
Furthermore, where that attorney was
himself a conspirator in the commission of
the crime, the privilege does not attach. It
is well settled that in order that a
communication between a lawyer and his
client may be privileged, it must be for a
lawful purpose. Every communication
between an attorney and a client for a
criminal purpose is a conspiracy or an
attempt at a conspiracy which is not only
lawful to divulge but must promptly be
disclosed (People v. Sandiganbayan, et al.,
G.R. Nos. 115439-41, 16 July 1997).
Test in applying the attorney-client
privilege
Whether the communication made is with
the view of obtaining from the lawyer his
professional assistance or advice regardless
of the existence or absence of a pending
litigation.
General Rule
Lawyers may not invoke the privilege and
refuse to divulge the name or identity of
their client.
Exceptions:
1. Where a strong possibility exists
that revealing clients name would
implicate the client in the very
activity for which he sought the
lawyers advice;
2. Where the disclosure would open
the client to civil liability; or
3. Where the prosecutors have no case
against the client unless by

revealing the clients name, the said


name would furnish the only link
that would form the chain of
testimony necessary to convict an
individual for a crime.
PHYSICIAN-PATIENT PRIVILEGED RULE
Requisites:
1. That the physician is authorized to
practice
medicine,
surgery
or
obstetrics;
2. The information was acquired or the
advice or treatment was given by
him in his professional capacity for
the purpose of treating and curing
the patient;
3. The
information,
advice
or
treatment,
if
revealed,
would
blacken the reputation of the
patient;
4. The privilege is invoked in civil case,
whether the patient is a party
thereto or not.
The physician may be considered to be
acting in his professional capacity when he
attends to the patient for curative,
preventive, or palliative treatment.
The privileged disclosure
necessary to able him to
efficaciously treat his patient.

are those
safely and

The Privilege does NOT apply to:


1. Communications which was not
given in confidence;
2. Communication is irrelevant to the
professional employment;
3. The communication was intended
for an unlawful purpose, as when it
is intended for the commission or
concealment of a crime;
4. The information was intended to be
made public; or
5. There was a waiver of the privilege
either by provisions of contract or
law. e.g. Sec. 4, Rule 28, Rules of
Court.

Rule 28, Sec. 4provides:


By requesting and obtaining a
report of the examination so ordered
or by taking the deposition of the
examiner, the party examined
waives any privilege he may have in
that action or any other involving
the same controversy, regarding the
testimony of every other person who
has examined or may thereafter
examine him in respect of the same
mental or physical examination.
The statutory physician-patient privilege,
though duly claimed, is not violated by
permitting a physician to give expert
testimony in response to a strictly
hypothetical question in a lawsuit involving
the physical mental condition of a patient
whom he has attended professionally,
where his opinion is based strictly upon the
hypothetical facts stated, excluding and
disregarding any personal professional
knowledge he may have concerning such
patient. But in order to avoid the bar of the
physician-patient privilege where it is
asserted in such a case, the physician must
base his opinion solely upon the facts
hypothesized in the question, excluding
from consideration his personal knowledge
of the patient acquired through the
physician and patient relationship. If he
cannot or does not exclude
from
consideration his personal professional
knowledge of the patients condition he
should not be permitted to testify as to his
experts opinion (Lim v. CA, G.R. No. 91114,
25 Sept. 1992 citing 81 Am. Jur. 2d, 277278).
The rule cannot be invoked as a shield for
the
commission
of
a
crime,
and
communications, however confidential they
may be, are not within the privilege if made
in furtherance of an unlawful or criminal
purpose.
PRIEST/MINISTER-PENITENT RULE

Requisites:
a. The minister or priest must be duly
ordained or consecrated by his sect
or denomination;
b. The communication was made
pursuant to a religious duty
enjoined in the course of discipline
of the sect or denomination to which
the priest or minister belongs; and
c. The
communication
covers
confession
which
must
be
penitential in character and any
advice made or given by the priest or
minister in his professional capacity.
The Privilege does
not apply when the
communication is not penitential in
character as when what is divulged is the
plan to commit a crime.
Q: For over a year, Nenita had been
estranged from her husband Walter
because of the latters suspicion that she
was having an affair with Vladimir, a
barangay kagawad who lived in nearby
Mandaluyong. Nenita lived in the meantime
with her sister in Makati. One day, the
house of Nenitas sister inexplicably burned
almost to the ground. Nenita and her sister
were caught inside the house but Nenita
survived as she fled in time, while her sister
tried to save belongings and was caught
inside when the house collapsed.
As she was running away from the burning
house, Nenita was surprised to see her
husband also running away from the scene.
Dr. Carlos, Walters psychiatrist who lived
near the burned house and whom Walter
medically consulted after the fire, also saw
Walter in the vicinity some minutes before
the fire. Coincidentally, Fr. Platino, the
parish priest who regularly hears Walters
confession and who heard it after the fire,
also encountered him not too far away from
the burned house.

Walter was charged with arson and at his


trial, the prosecution moved to introduce
the testimonies of Nenita, the doctor and
the priest-confessor, who all saw Walter at
the vicinity of the fire at about the time of
the fire.
a. May the testimony of Nenita be
allowed over the objection of Walter?
b. May
the
testimony
of
Dr.
Carlos, Walters psychiatrist, be
allowed over Walters objection?
c. may the testimony of fr. Platino the
priestconfessor, be allowed
over Walters objection? (Bar 2013)
A: (A) No. Nenita may not be allowed to
testify against Walter. Under the Marital
Disqualification
Rule,
during
their
marriage, neither the husbandnor the wife
may testify for or against the other without
the consent of the affected spouse, except
in a civil case by one against the other, or in
a criminal case for a crime committed by
one against the other or the latters direct
descendant or ascendant(Section 22, Rule
130, Rules on Evidence). The foregoing
exceptions cannot apply since it only
extends to a criminal case of one spouse
against the other or the latters direct
ascendants or descendants. Clearly, Nenita
is not the offended party and her sister is
not her direct ascendant or descendant for
her to fall within the exception.
(B) Yes. The testimony of Walters
psychiatrist may be allowed. The privileged
communication contemplated under Sec.
24 (c) Rule 130 of the Rules on Evidence
involves only person authorized to practice
medicine, surgery or obstetrics. It does not
include a Psychiatrist. Moreover, the
privilege communication applies only in
civil cases and not in a criminal case for
arson. Besides, the subject of the testimony
of Dr. Carlos was not in connection with the
advice or treatment given by him to Walter,
or any information he acquired in attending
to Walter in a professional capacity. The

testimony of Dr. Carlos is limited only to


what he perceived at the vicinity of the fire
and at the time of the fire.
(C) Yes. The Priest can testify over the
objection of Walter. The disqualification
requires that the same were made pursuant
to a religious duty enjoined in the course of
discipline of the sect or denomination to
which they belong and must be confidential
and penitential in character, e.g., under the
seal of confession (Sec. 24 (d) Rule 130,
Rules on Evidence).
Here, the testimony of Fr. Platino was not
previously subject of a confession of Walter
or an advice given by him to Walter in
hisprofessional character. The Testimony
was merely limited to what Fr. Platino
perceived at the vicinity of the fire and at
about the time of the fire. Hence, Fr.
Platino may be allowed to testify.
PRIVILEGED COMMUNICATIONS TO
PUBLIC OFFICERS
Requisites:
a. The communication was made to
the
public
officer
in
official
confidence; and
b. Public interest would suffer by the
disclosure of such communication.
Exceptions
1. When useful to vindicate the
innocence of an accused or
2. To lessen the risk of false testimony,
or
3. When essential to the proper
disposition of the case, or
4. When the benefit to be gained is
greater than any injury which could
inure.
Without prejudice to his liability under the
civil and criminal laws, the publisher,
editor, columnist or duly accredited
reporter of any newspaper, magazine or

periodical of general circulation cannot be


compelled to reveal the source of any newsreport or information appearing in said
publication which was related in confidence
to such publisher, editor or reporter unless
the court or a House or committee of
Congress finds that such revelation is
demanded by the security of the State (Sec.
1, R.A. No. 53, as amended by R.A. 1477).
The
privilege
only
applies
to
communications to such officers who have
a responsibility or duty to investigate or to
prevent public wrongs, and not to officials
in general (Francisco, p. 139, 1992 ed.).
PRIVILEGED COMMUNICATIONS UNDER
THE RULES ON ELECTRONIC EVIDENCE
The confidential character of a privileged
communication is NOT lost solely on the
ground that it is in the form of an
electronic document (Sec.3, Rule 3, Rules
on Electronic Evidence).
NOTE:
Privileged communications
toelectronic evidence.

apply

even

OTHER PRIVILEGED MATTERS


Section 7, Article III of the Constitution states
that the right of the people to information
on matters of public concern shall be
recognized. Access to official records, and to
documents, and papers pertaining to
official acts, transactions, or decisions, as
well as to government research data used
as basis for policy development, shall be
afforded the citizen, subject to such
limitations as may be provided by law.
However, like all constitutional guarantees,
the right to information, with its companion
right of access to official records, is not
absolute. While providing guaranty for that
right, the Constitution also provides that
the peoples right to know is limited to
matters of public concern and is further
subject to such limitations as may be
provided by law. Jurisprudence has

provided the following limitations to that


right:
a. national security matters and
intelligence information;
b. trade
secrets
and
banking
transactions;
TRADE SECRETS
A plan or process, tool, mechanism or
compound known only to its owner and
those of his employees to whom it is
necessary to confide it. The definitionalso
extends to a secret formula or process not
patented, but known only to certain
individuals using it in compounding some
article of trade having a commercial value.
American jurisprudence has utilized the
following factors to determine if an
information is a trade secret,towit:
a. the extent to which the information
is known outside of the employers
business;
b. the extent to which the information
is known by employees and others
involved in the business;
c. the extent of measures taken by the
employer to guard the secrecy of the
information;
d. the value of the information to the
employer and to competitors;
e. the amount of effort or money
expended by the company in
developing the information; and
f. the extent to which the information
could be easily or readily obtained
through an independent source. (Air
Philippines Corp. v. Pennswell, Inc.
G.R. No. 172835, Dec. 13, 2007)
NOTE:
Trade secrets cannot be disclosed although
this is not absolute as the court may
compel disclosure where it is indispensable
for doing justice (Francisco, p. 335, 1992
ed.)
BANK DEPOSITS

Absolutely confidential innature except


upon written permission of the depositor, or
in cases of impeachment, or upon lawful
order
of
a competent
court
(R.A.
1405;Francisco, p. 335, 1992 ed.).
An examination of the secrecy of bank
deposits law (R. A. No. 1405) would reveal
the following exceptions:
1. Where the depositor consents in
writing;
2. Impeachment case;
3. By court order in bribery or
dereliction of duty cases against
public officials;
4. Deposit is subject of litigation;
5. Sec. 8, R. A. No. 3019, in cases of
unexplained
wealth
(PNB
vs.
Gancayco G.R. No. 135882, June 27,
2001)
NOTE:
Before an in camera inspection may be
allowed, there must be a pending case
before a court of competent jurisdiction.
Further, the account must be clearly
identified, the inspection limited to the
subject matter of the pending case before
the court of competent jurisdiction.
Thebank personnel and the account holder
must be notified to be present during the
inspection, and such inspection may cover
only the account identified in the pending
case. (Marquez, Branch Manager of Union
Bank of the Phils. V. Desierto, G.R. No.
135882, June 27, 2001)
CONFIDENTIAL INFORMATION
Information notyet made a matter of public
record relating to pending cases, as well as
information not yet made public concerning
the work of any justice or judge relating to
pending cases, including notes, drafts,
research papers, internal discussions,
internal memoranda, records of internal
deliberations and similar papers.
NOTE:

The notes, drafts, research papers,


internaldiscussions, internal memoranda,
records of internal deliberations and similar
papers that a justice or judge uses in
preparing a decision, resolution or order
shall remain confidential even after the
decision, resolution or order is made public.
Any release of a copy to the public, or to the
parties, of an unpromulgated ponencia
infringes on the confidential internal
deliberations of the Court. It is settled that
the internal deliberations of the Court are
confidential.
A
frank
exchange
of
exploratory ideas and assessments, free
from the glare of publicity and pressure by
interested parties, is essential to protect the
independence of decision-making of those
tasked to exercise judicial power. (In re:
Undated Letter of Mr. Louis C. Biraogo v.
Nograles and Limkaichong, G.R. No. 179120,
A.M. No. 09-2-19-SC, Feb. 24, 2009)
The constitutional right to information
includes official information on on-going
negotiations before a final contract. The
information, however, must constitute
definite propositions by the government and
should not cover recognized exceptions like
privileged
information,
military
and
diplomatic secrets and similar matters
affecting national security and public order.
The guardian ad litem shall not testify in
any proceeding concerning any information,
statement, or opinion received from the
child in the course of serving as a guardian
ad litem, unless the court finds it necessary
to promote the best interests of the
child(Sec. 5 (e), Rule on Examination of a
Child Witness).
Editors, publisher, or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any news
report or any information given to him in
confidence, unless a court or a House or a

committee of Congress finds that such


revelation is demanded for State security
(R.A. 1477).
Voters may not be compelled to disclose for
whom they voted.
Conciliators and similar officials shall not
testify in any court or body regarding any
matter taken up at the conciliation
proceedings conducted by them (Art. 233,
Labor Code).
Informers, for the protection of their
identity, cannot be compelled to testify by
the prosecutor when their testimony would
merely
be
cumulative
and
corroborative(Herrera, Vol. V,p. 353, 1999
ed.).
TESTIMONIAL PRIVILEGED PARENTAL
AND FILIAL PRIVILEGED (Sec. 25, Rule
130)
NOTE:
The rule applies to both criminal and
civilcases since it makes no distinction.
PARENTAL PRIVILEGE
A parent cannot becompelled to testify
against his child or direct descendants.
FILIAL PRIVILEGE RULE
Achild may not becompelled to testify
against his parents or direct ascendants.
General rule
No person may be compelled totestify
against
his
parents,
other
direct
ascendants, children or other direct
descendants.
Exceptions
1. When
the
testimony
of
the
descendant is indispensable in a
crime
committed
against
said
descendant;
2. When
the
testimony
of
the
descendant is indispensable in a

crime committed by one parent


against
the
other
(Art. 215,
FamilyCode);
3. Waiver such privilege and the
witness voluntarily testifies against
his
parent,
ascendant,
or
descendant.
ADMISSIONS AND CONFESSIONS
ADISSION OF A PARTY
(Sec. 26, Rule 130)
ADMISSIONS OF A PARTY
The act, declaration or omission of a party
as to a relevant fact may be given in
evidence against him.
An admission is any statement of fact
made by a party against his interest or
unfavorable to the conclusion for which he
contends or is inconsistent with the facts
alleged by him (31C.J.S. 1022).
Requisites for Admissibility
a. An admission must involve matters
of fact, not law;
b. It must be categorical and definite;
c. It
must
be
knowingly
and
voluntarily made;
d. It must be adverse to the admitters
interest, otherwise, it would be selfserving.
SELF-SERVING EVIDENCE
Self-serving evidence is evidence made by a
party out of court at one time; it does not
include a partys testimony as a witness in
court. It is excluded on the same ground as
any hearsay evidence, that is lack of
opportunity for cross-examination by the
adverse party, and on theconsideration that
its admission would open the door to fraud
and to fabrication of testimony. On the
other hand, a partys testimony in court is
sworn and affords the other party the
opportunity for cross examination (5 Moran

222,citing National Development Co. v.


WorkmensCompensation Commission, 19
SCRA 861, 865-866, citing 2 Jones on
Evidence, Sec. 335 5th Ed.)
General Rule
Self-serving
declarations,
which
areunsworn statements made by the
declarant out of court and which are
favorable to his interest are NOT
admissible.
Exceptions
1. When they form part of the res
gestae,
including
spontaneous
statements, and verbal acts (Ency.
Of Evidence, 315, 385).
2. When they are in the form of a
complaint or exclamations of pain
and suffering (31 C.J.S. 956).
3. When they are part of a confession
offered by the prosecution (2
Whartons Criminal Evidence, Sec.
690).
4. Where the credibility of a party has
been assailed on the ground that
his testimony is a recent fabrication,
in which case his prior declaration,
even of a self-serving character, may
be admitted, provided they were
made at a time when a motive to
misrepresent did not exist (22 C.J.S.
230). This is sometimes referred to
as testimonial rehabilitation.
5. Where they are offered by the
opponent.
6. When they are offered without
objection, the evidence cannot
afterwards be objected to as
incompetent (Phyll v. New York, etc.
R.Co. 92 App. Div. 513; 87 N.Y.S.
345) (Francisco, Evidence 1990 Ed.,
Part I).
NOTE:
Diaries are, as a rule, inadmissible
becausethey are self-serving in nature, they

are the nature of books of account; but it


has been held that an entry in a diary
being in the nature of a declaration, if it
was made against the interest when made,
it is admissible (Herrera citing 5Moran).
FORMS OF ADMISSION
1. Express Admission
2. Implied Admission
3. Judicial Admission
4. Extrajudicial Admission
5. Adoptive Admission
Express Admission
An admission made
statement or act.

through

apositive

Implied Admission
An admission which can be inferred from
the statements, declarations and acts of a
person.
Admissions are not limited to any particular
form. They may be not only in the form of
declarations, oral or written, but they may
be implied from the conduct or acts of
parties.
Flight from justice is an admission by
conduct and circumstantial evidence of
consciousness of guilt (U.S. v. Sarikala, 37
Phil. 486). Also, evidence of attempts to
suppress evidence, as by destruction of
documentary evidence or eloignment of
witnesses, are admissible under the same
rationale.
NOTE:
The act of repairing a machine, bridge
orother facility after an injury has been
sustained therein is NOT an implied
admission of negligence by conduct. It is
merely a measure of extreme caution by
adopting additional safeguards since,
despite due care and diligence, an
unexpected accident can still occur
(Regalado).

Judicial Admission
An admission, verbal orwritten, made by a
party in the course of a judicial proceeding
in the same case. The admission may be
contradicted only by showing that it was
made through palpable mistake or that no
such admission was made (Sec. 4,
Rule129).
Extrajudicial Admission
Admission made out ofcourt or even in the
proceeding other than the one under
consideration, as found in Sec. 26 and 32.
Adoptive Admission
It is a partys reaction to astatement or
action by another person when it is
reasonable to treat the partys reaction as
an admission of something stated or
implied by the other person. A third
persons statement becomes the admission
of the party embracing or espousing it.
Adoptive admission may occur when a
party:
a. Expressly agrees to or concurs in an
oral statement made by another;
b. Hears a statement and later on
essentially repeats it;
c. Utters an acceptance or builds upon
the assertion of another;
d. Replies by way of rebuttal to some
specific points raised by another but
ignores further points which he or
she has heard the other make; or
e. Reads and signs a written statement
made by another. (Republic v.
Kendrick Development Corp.,G.R. No.
149576, Aug. 8, 2006)
It states that a party may, by his words or
Conduct, voluntarily adopt or ratify
anothers statement. Where it appears
that a party clearly and unambiguously
assented to or adopted the statements of
another, evidence of those statements is
admissible against him. (Riano,Evidence:
A Restatement for the Bar, p. 117, 2009
ed.)

Q:True or False. Under the doctrine of


adoptive admission, a third partys
statement becomes the admission of the
party embracing or espousing it. Explain.
(Bar 2010)
A: True. The effect or consequence of the
admission will bind also the party who
adopted or espoused the same, as applied
in Estrada vs. Desierto, an adoptive
admission is a partys reaction to a
statement or action by another person
when it is reasonable to treat the partys
reaction as an admission of something
stated or implied by the other person.
Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
attesting that he was the last person seen
with the woman when she was still alive,
Carlito was arrested within five hours after
the discovery of the cadaver and brought to
the police station. The crime laboratory
determined that the woman had been
raped. While in police custody, Carlito broke
down in the presence of an assisting
counsel orally confessed to the investigator
that he had raped and killed the woman,
detailing the acts he had performed up to
his dumping of the body near the creek. He
was genuinely remorseful. During the trial,
the state presented the investigator to
testify on the oral confession of Carlito. Is
the oral confession admissible in evidence
of guilt? (Bar 2008)
A: The declaration of the accused expressly
acknowledging his guilt, in the presence of
assisting counsel, may be given in evidence
against him and any person, otherwise
competent to testify as a witness, who
heard the confession is competent to testify
as to the substance o what he heard and
understood it. What is crucial here is that
the accused was informed of his right to an
attorney and that what he says may be
used in evidence against him. As the

custodial confession was given in the


presence of an assisting counsel, Carlito is
deemed fully aware of the consequences of
his statements (People v. Silvano, GR No.
144886, 29 April 2002).
ADMISSION
Statement of fact
does not involve
acknowledgment or
guilt or liability.
Maybe
made
by
third persons and in
certain cases, is
admissible against a
party.
It may be express or
tacit.
A general admission
in a sense includes
confessions.
The
former being the
general
term
because
accordingly,
a
confession is also
an admission by the
accused of the fact
essential
to
the
charge.
ADMISSIONS

It is admissible even
if
the
person
making
the
admission is alive or
is in court.
Made at any time,
even during the
trial.
It is admissible as
long
as
it
is
consistent with his
present claim or

CONFESSION
It
involves
acknowledgment of
guilt or liability.
Can be made only
by the party himself
and in some cases,
is
admissible
against
his
coaccused.
It must be express.

defense and need


not be against ones
pecuniary or moral
interest.
It is admissible only
against the party
making
the
admission.
It
is
not
an
exception to any
rule.

It is admissible even
against
third
persons.
It is an exception to
the hearsay rule.

RES INTER ALIOS ACTA RULE


If fully expressed reads: res inter alios acta
alterinocere non debet which literally means
that things done between strangers
ought not toinjure those who are not
parties to them.

A confession is a
specific
type
of
admission
which
refers
only
to
acknowledgment of
guilt.

This rule applies to both extrajudicial


confessions and admissions (People v.
Valerio, Jr., L-4116, Feb.25, 1982) and not to
statements made in opencourt.

DECLARATION
AGAINST
INTEREST
To be admitted, it
must be made by a
person who is either
deceased or unable
to testify.
Made before the
controversy arises.

NOTE:
This
rule
applies
only
to
extrajudicial declarations and not to
statements made in open court.

It is made against
ones pecuniary or
moral interest.

Branches of Res Inter Alios Acta Rule


1. FIRST BRANCH. The rule that the
rights
of
aparty
cannot
be
prejudiced by an act, declaration, or
omission of another (ADMISSION
BY A THIRD PARTY) (Sec. 28,Rule
130, Rules of Court).

Exceptions
a. Admission by a co-partner or
agent (Sec. 29)
b. Admission by a conspirator
(Sec. 30)
c. Admission by privies (Sec.
31)
NOTE:

Sections 29, 30 and 31 are


collectivelyclassified as VICARIOUS
ADMISSIONS.
2. SECOND BRANCH. The rule that
evidence ofprevious conduct or
similar acts at one time is not
admissible to prove that one did or
did not do the same act at another
time
(SIMILAR
ACTS
AS
EVIDENCE) (Sec. 34, Rule130, Rules
of Court).
ADMISSION BY CO-PARTNER OR
AGENT, JOINT OWNER, JOINT DEBTOR
OR PERSON WHO HAS A JOINT
INTEREST WITH THE PARTY
(Sec. 29, Rule 130)
Requisites:
a. The partnership, agency or joint
interest is established by evidence
other than the act or declaration;
b. The act or declaration is within the
scope of the partnership, agency or
joint interest; and
c. Such act or declaration must have
been made during the existence of
the partnership, agency or joint
interest.
Relevant substantive provisions of the
Civil Code on:
a. Partners: Art. 1803.
b. Agents: Art. 1910.
c. Co-owners: Art. 487.
d. Solidary debtors: Art. 1222.
DOCTRINE
OF
CONDITIONAL
ADMISSIBILITY
Inasmuch as it must often happen that the
admission of only one partner can be
proved at a time, declarations may be
received where the existence of a
partnership is alleged without proof of the
partnership at that time. Here, as in other
cases, the order of the testimony is within
the discretion of the judge.

ADMISSION BY CONSPIRATOR
(Sec. 30, Rule 130)
CONSPIRACY
Exists when two or more personscome to an
agreement concerning the commission of a
felony and decide to commit it (Art. 8,
Revised Penal Code).
NOTE:
Once conspiracy is proven, the act of one
isthe act of all. The statement therefore of
one, may be admitted against the other coconspirators as an exception to the rule of
resinter alios acta.
Requisites
of
Admission
by
Coconspirator
a. The declaration or act be made or
done during the existence of the
conspiracy;
b. The declaration or act must relate to
the conspiracy; and
c. The conspiracy must be shown by
evidence other than the declaration
or act.
NOTE:
This
rule
applies
only
to
extrajudicialadmissions
and
not
to
testimonies at trial where the party
adversely affected has the opportunity to
cross-examine the declarant (People v.
Palijon,343 SCRA 486).
PRINCIPLE OF IMPLIED CONSPIRACY
Conspiracy
may
be
justified
by
circumstantial evidence, that is, their
community of purpose and their unity of
design
in
the
contemporaneous
or
simultaneous performance of the act of
assaulting the deceased. Although the
intent may be classified as instantaneous,
it sprung from the turn of events, thereby
uniting the criminal design of the slayer
immediately before the commission of the

offense (Subayco v. Sandiganbayan, G.R.


No. 117267, Aug. 22, 1996).
DOCTRINE
OFADOPTIVE
ADMISSIONIN CONSPIRACY
Where one joins a conspiracy after its
formation and actively participates in it, he
ADOPTS the previous acts and declarations
of his fellow conspirators, so that such acts
and declarations, although done or made
before he joined the conspiracy, are
ADMISSIBLE against him.
To free himself from such criminal liability,
the law requires overt act on the part of the
conspirator, to seek to prevent commission
of the second or related felony or to
abandon or dissociate himself from the
conspiracy to commit the initial felony
(People v. Punzalan, G.R. No. 78853, 8 Nov.
1991).
INTERLOCKING CONFESSIONS
Where several extrajudicial confessions had
been made by several persons charged with
the same offense and without the
possibility of collusion among them, the
fact that the statements are in all material
respects identical is confirmatory of the
confessions of the co-defendants and are
admissible against other persons implicated
therein. This is an exception to the hearsay
and res inter alios acta rule.
ADMISSION BY PRIVIES
(Sec. 31, Rule 130)
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.
PRIVIES
Denotes the idea of succession not onlyby
right of heirship and testamentary legacy,
but also that of succession by singular title,
derived from acts inter vivos, as by
assignment, subrogation or purchase in

fact any act whereby the successor is


substituted in the place of the predecessor
in interest (Alpuerto v. Perez, 38 Phil.785).
Requisites:
a. there must be a relation of privity
between
the
party
and
the
declarant;
b. The admission was made by the
declarant,
as
predecessor-ininterest, while holding the title of
the property;and
c. The admission is in relation to said
property (People v. Du, O.G. 2229).
ADMISSION BY SILENCE
(Sec. 32, Rule 130)
Basis
The maximQui tacet consentire videtur(he
who is silent appears to consent) is
received on the theory that the failure to
deny what is asserted in the presence of a
party is an implied admission of the truth
of the statement.
Requisites:
a. He must have heard or observed the
act or declaration of the other
person;
b. He must have had the opportunity
to deny it;
c. He must have understood the
statement;
d. He must have an interest to object,
such that he would naturally have
done so if the statement was not
true;
e. The facts were within his knowledge;
and
f. The fact admitted or the inference to
be drawn from his silence
DOCTRINE OF ADOPTIVE ADMISSION
An adoptive admission is a partys reaction
to a statement or action by another person
when it is reasonable to treat the partys

reaction as an admission of something


stated or implied by the other person
(Estrada v. Desierto, 356 SCRA 108).
NOTE:
By
adoptive
admission,
a
third
personsstatement becomes the admission
of the party embracing or espousing it.
Instances of Adoptive Admission
1. When a party expressly agrees to or
concurs in an oral statement made
by another;
2. When a party hears a statement and
later on essentially repeats it;
3. A party utters an acceptance or
builds upon the assertion of
another;
4. A party replies by way of rebuttal to
some specific points raised by
another but ignores further points
which he or she has heard the other
make; or
5. A party reads and signs a written
statement
made
by
another
(Republic
v. KenrickDevelopment
Corporation, G.R. No. 149576,
August 8, 2006).
CONFESSIONS
(Sec. 33, Rule 130)
CONFESSION
The
declaration
of
an
accused
acknowledging his guilt in express words of
the truth of the offense charged, or of some
essential parts thereof.
Requisites:
a. The confession must involve an
express
and
categorical
acknowledgment of guilt;
b. The facts admitted must be
constitutive of a criminal offense;
c. The confession must have been
given
voluntarily
and
made
intelligently, where the accused

realizes the legal significance of his


act;
d. 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 latters absence,
upon a valid waiver, and in the
presence of any of the parents, older
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 (Sec. 12, Art. III,1987
Constitution; Sec. 2[d], R.A. No.
7438).
FORMS OF CONFESSION
1. Judicial Confession one made
before acourt in which a case is
pending and in the course of legal
proceedings therein and, by itself,
can sustain a conviction even in
capital offenses.
2. Extrajudicial Confession one
made in anyother place or occasion
and cannot sustain a conviction
unless corroborated by evidence of
the corpus delicti (Sec. 3, Rule 133).
General rule
Extrajudicial confession is binding only
upon the confessant and is not admissible
against his co-accused based on the Res
InterAlios Acta Rule and Hearsay Rule.
Exceptions
1. If
the
co-accused
impliedly
acquiesced in or adopted said
confession by not questioning its
truthfulness;
2. If the accused persons voluntarily
and
independently
executed
identical
confessions
without
collusion, commonly known as
interlocking
confessions,
which

3.

4.

5.

6.
7.

confessions are corroborated by


other evidence;
Where the accused admitted the
facts stated by the confessant after
being apprised of such confession;
If they are charged as coconspirators of the crime which was
confessed by one of the accused and
said confession is used only as a
corroborating evidence
Where the confession is used as
circumstantial evidence to show the
probability of participation by the
co-conspirator;
Where the confessant testified for
his co-defendant;
Where
the
co-conspirators
extrajudicial
confession
is
corroborated by other evidence of
record
(Regalado,
Florenz.
D.
RemedialLaw Compendium Vol. II.,
2008).

SPONTANEOUS
OF
SPUR-OF-THEMOMENT STATEMENTS
In one case, before the police officer
interrogated the accused, the latter had
already admitted the crime when, after
coming out of the toilet, the scene of the
crime, revealed to the guard they
encountered that they committed an act of
revenge. That spontaneous statement
elicited without any interrogation, was part
of the res gestae and, at the same time, was
a voluntary confessionof guilt. Not only did
the accused, bymeans of said statement,
waive their right to remain silent and to
counsel,
but
by
their
extrajudicial
confession, plea of guilty, testimony in court
and by not appealing the judgment of
conviction (People v. Tampus, 96 SCRA
624;People v. Dy, 158 SCRA 111).
Presumption of Voluntariness
A confession isdeemed to be voluntary and
the confessant has the burden of proving
that it was given as a result of violence,
intimidation, threat or promise of reward or
leniency.

Weight of confession
The confession constitutesan evidence of a
higher order since it is supported by strong
presumption that no person of normal mind
would deliberately and knowingly confess to
a crime.
SIMILAR ACTS AS EVIDENCE
(Sec. 34, Rule 130)
General rule
Evidence that one did or did not doa certain
thing at one time is not admissible to prove
that he did or did not do the same or
similar thing at another time.
Exceptions
Evidence of similar acts is admissiblefor
any of the following purposes:
a. Specific intent;
b. Knowledge;
c. Identity;
d. Plan;
e. System;
f. Scheme;
g. Habit;
h. Custom;
i. Usage; and the like.
NOTE:
It
is well-settled
that
evidence
is
notadmissible which shows, or tends to
show, that the accused in a criminal case
has committed a crime wholly independent
from the offense for which he is on trial. A
man may be a notorious criminal, and may
have committed many crimes and still be
innocent of the crime charged on trial
(People v. Galo, 143 SCRA 193).
UNACCEPTED OFFER
(Sec. 35,Rule 132)
UNACCEPTED OFFER
An offer in writing to pay a particular sum
of money or to deliver a written instrument
or specific property is, if rejected without

valid cause, equivalent to the actual


production and tender of the money,
instrument or property.
NOTE:
Sec.
35
is
merely
an
evidentiarycomplement to the rule on
tender of payment
(Art. 1256, Civil Code) by providing that
said offerof payment must be made in
writing.
TESTIMONIAL KNOWLEDGE
TESTIMONY GENERALLY CONFINED TO
PERSONAL KNOWLEDGE; HEARSAY
EXCLUDED
(Sec. 36, Rule 130)
HEARSAY RULE
Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of some other person
not on the witness stand.
Elements:
a. There must be an out-of-court
statement; and
b. That the statement made out of
court, is repeated and offered by the
witness in court to prove the truth
of the matters asserted by the
statement. (Riano, Evidence: A
Restatement forthe Bar, p. 348, 2009
ed.)
Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of some other person
not on the witness stand. (Regalado, Vol. II,
p. 776, 2008 ed.)
It also includes all assertions which have
not been subjected to cross-examination by
the adverse party at the trial in which they

are being offered against him. (Herrera, Vol.


V, p. 581, 1999ed.)
REASONS WHY HEARSAY IS EXCLUDED
1. The party against whom it is
presented is deprived of his right
and opportunity to cross-examine
the pe