VILLASIS LAW CENTER

BAR REVIEW

2017 PRE-WEEK NOTES FOR 1

REMEDIAL LAW BAR EXAMINATION

By:

Eleuterio L. Bathan 2

Question No 1. What is a minute trial?

Minute trial is the availment of the discovery procedures sanctioned by the Rules of
Court, namely: depositions, interrogatories to parties, request for admission by the adverse
party, production or inspection of documents or things, physical and mental examination of
persons,

Question No. 2. On Supreme Courts reviewing power:

Case:
The JBCs five (5) year minimum requirement policy is embodied in its rules and
procedures.
Judge Hapilong is on his fourth year as Regional Trial Court judge in Marawi City. He
applied for promotion to the Sandiganbayan. However, his application was rejected by the
Judicial and Bar Council (JBC) on the ground that he has not yet reached the minimum five
(5) year stay policy in the Regional Trial Court as judge. Judge Hapilong challenged the JBC
said JBC Policy.
Supreme Court has the power and authority to review the JBCs act.
By virtue of the Court's supervisory duty over the JBC and in the exercise of its
expanded judicial power, the Court assumes jurisdiction over the present petition.
The Court can appropriately take cognizance of this case by virtue of the Court's
power of supervision over the JBC. Jurisprudence provides that the power of supervision is
the power of oversight, or the authority to see that subordinate officers perform their duties.
It ensures that the laws and the rules governing the conduct of a government entity are

1
Part I. THIS IS NOT FOR SALE !!!
2
Presiding Judge, RTC, Branch 92, Quezon City.
San Sebastian College of Law, Manila
observed and complied with. Supervising officials see to it that rules are followed, but they
themselves do not lay down such rules, nor do they have the discretion to modify or replace
them. If the rules are not observed, they may order the work done or redone, but only to
conform to such rules. They may not prescribe their own manner of execution of the act.
They have no discretion on this matter except to see to it that the rules are followed.
Following this definition, the supervisory authority of the Court over the JBC is to see
to it that the JBC complies with its own rules and procedures. Thus, when the policies of the
JBC are being attacked, then the Court, through its supervisory authority over the JBC, has
the duty to inquire about the matter and ensure that the JBC complies with its own rules
(Judge Villanueva vs. JBC, 2015).

On Jurisdiction:

Take note of the rule that: trial court may motu proprio or ex mere motu dismiss the
case/complaint if it has no jurisdiction over the subject matter; decision rendered by the
court without jurisdiction over the subject matter is null and void; if the trial court has no
jurisdiction over the subject matter the only power it has is to dismiss the case. Therefore, on
aspects of jurisdiction whether regular courts (MTC or RTC) or quasi-judicial bodies, observe
the following basic guidelines:

Rule No. 1. Breach of contract as cause of action for Specific Performance RTC.
Breach of contract as cause of action for Damages MTC or RTC.

Rule No. 2. If the action has something to do with O.P.I. over real property
(subject of the action), propertys A.V. is determinative of trial courts jurisdiction
MTC or RTC.

Assessed value is jurisdictional; primary intention of the plaintiff

is controlling (Trayvilla vs. Sejas, 2016).

Petitioners argued that a complaint for annulment of a deed

of sale and partition is incapable of pecuniary estimation, and thus falls
within the exclusive jurisdiction of the RTC. The High Court ruled that
'the nature of an action is not determined by what is stated in the
caption of the complaint but by the allegations of the complaint and the
reliefs prayed for. Where the ultimate objective of the plaintiff is to
obtain title to real property, it should be filed in the proper court having
jurisdiction over the assessed value of the property subject thereof
(Huguete vs. Embudo, 2003).

If the case is captioned as one for specific performance and

damages, the relief sought was the conveyance or transfer of real
property, or ultimately, the execution of deeds of conveyance in their
favor of the real properties enumerated in the provisional memorandum
 of agreement, the case is actually a real action affecting as it did title to
or possession of real property. Consequently, the basis for determining
the correct docket fees shall be the assessed value of the property, or
the estimated value thereof as alleged in the complaint. But since
Mercedes Gochan failed to allege in their complaint the value of the real
properties, the High Court found that the RTC did not acquire
jurisdiction over the same for non-payment of the correct docket fees
(Gochan vs. Gochan, 2001).

Rule No. 3. If the action has something to do with O.P.I. over real property
(subject of the action), with or without prayer for damages (damages are mere
incidental), the A.V. of the property involved is determinative of trial courts
jurisdiction MTC or RTC.

Rule No. 4. If the action has something to do with O.P.I. over real property
(subject of the action), with alternative cause of action for damages, but the
primary purpose of the complaint has something to do with O.P.I., AV of the
property involved is determinative of trial courts jurisdiction MTC or RTC.

Rule No. 5. If the action has something to do with recovery of possession over
real property (subject of the action), determine whether the recovery of
possession is in the nature of interdictal or publiciana. If interdictal, MTC, if
publiciana MTC or RTC, depending upon propertys A.V.).

Rule No. 6. If in ejectment cases where the issue of possession is intimately

intertwined with the issue of ownership, it will not divest the MTC of its
jurisdiction. It is because the issue of ownership is material to the case to
determine who has better possession.

To consider a complaint for unlawful detainer as sufficiently

alleges a cause of action the presence of the following elements is a
must:

1. Initially, the possession of the property by the defendant was by

contract with or by tolerance of the plaintiff.

2. Eventually, the possession became illegal upon the plaintiffs notice to

the 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 latters enjoyment.

4. Within one year from the making of the last demand on the
 defendant to vacate the property, the plaintiff instituted the Complaint
for ejectment

Even where the defendant raises the question of ownership

in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the first level courts have the
undoubted competence to resolve the issue of ownership albeit only to
determine the issue of possession (Wilmon Auto Supply Corp. vs. CA,
1992).

In unlawful detainer, tolerance must be present right

from the start of possession sought to be recovered, to categorize a
cause of action as one of unlawful detainer (Monteblanco vs. Hinigaran
Sugar Plantation, 1936).

The rule in forcible entry cases, but not in those for

unlawful detainer, is that a party who can prove prior possession can
recover such possession even against the owner himself. Regardless of
the actual condition of the title to the property and whatever may be
the character of his prior possession, if he has in his favor priority in
time, he has the security that entitles him to remain on the property
until he is lawfully ejected by a person having a better right through an
accion publiciana or accion reivindicatoria. Corollarily, if prior possession
may be ascertained in some other way, then the inferior court cannot
dwell upon or intrude into the issue of ownership (German
Management & Services vs. CA, 1989).

Rule No. 7. If the action has something to do with O.P.I. over real property with
action for specific performance with or without prayer for damages, disregard the
AV of the property involved in determining trial courts jurisdiction. It is because
this is an action incapable of pecuniary estimation because the real action case is
intertwined with an action incapable of pecuniary estimation.

Rule No. 8. If the principal amount cannot be estimated in terms of money, the
action is incapable of pecuniary estimation RTC.

Rule No. 9. If the action is declaratory relief governed by Section 1, paragraph 1 of

Rule 63, jurisdiction is with the RTC.

Rule No. 10. If the claim is purely for sum of money, the amount of the demand
shall be the totality of the claims in all the causes of action: MTC or RTC,
depending upon the total.
 Rule No. 11. If the resolution of the case requires expertise, specialized skills, and
knowledge of a particular government agency or agencies in resolving an issue,
apply the doctrine of primary jurisdiction.

Rule No. 12: Regular Court vs. Labor Arbiter [Article 217, Labor Code]: (a) not all
disputes between an employer and his employee fall within the jurisdiction of the
labor tribunals; and (b) a cause of action is based on a quasi-delict or tort, which
has no reasonable causal connection with any of the claims provided for in Article
217, jurisdiction over the action is with the regular courts. Therefore, if it is clear
and pure labor LA/NLRC. If it is a claim for payment and post-employment
issue: MTC or RTC, depending upon the amount.

On Condition Precedent (Katarungang Pambarangay):

Take note of the cases cognizable by the Lupong Tagapamaya.
The general rule is that ALL disputes between parties actually residing in the same city
or municipality are subject of barangay conciliation (Article 408), but subject to the following
EXCEPTIONS:
(1) Where one party is the government, or any subdivision or instrumentality
thereof;
(2) Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
(3) Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five thousand pesos (P5,000.00);
(4) Offenses where there is no private offended party;
(5) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
(6) 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.

AS TO VENUE, take note also of the rules to be observed cases cognizable by the
Lupong Tagapamaya (Article 409, LGC):
(1) Disputes between persons actually residing in the same barangay shall be
brought for amicable settlement before the lupon of said barangay;
(2) Those involving 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 involving real property or any interest therein shall be brought in
the barangay where the real property or the larger portion thereof is situated;
(4) Those arising at the workplace where the contending parties are employed or
at the institution where such parties are enrolled for study, shall be brought in the
barangay where such workplace or institution is located. Objections to venue shall
be raised in the mediation proceedings before the punong barangay; otherwise, the
same shall be deemed waived. Any legal question which may confront the punong
barangay in resolving objections to venue herein referred to may be submitted to
the Secretary of Justice, or his duly designated representative, whose ruling
thereon shall be binding.

Case:
Complainant and Respondent are both employees of the trial court holding office at
Barangay X, Manila. They are also both residing in the same barangay (Barangay X, Manila).
While inside the office, Respondent uttered abusive remarks to complainant made in the
heat of unrestrained anger and obfuscation.

Held: The case is cognizable by the Katarungang Pambarangay, because the case is
slight oral defamation and at the same time the parties are both residing in the same
barangay, but not on the basis that they are working on the same office. Uttering
defamatory words in the heat of anger, with some provocation on the part of the offended
party constitutes only a light felony thus mandatory barangay conciliation is required
pursuant to Sections 408 and 409 of RA 7160, because the lupon of each barangay shall have
authority to bring together the parties actually residing in the same city or municipality for
amicable settlement of all disputes (Villanueva vs. People, 2006; Agbayani vs. CA, 2012).

TAKE NOTE also that in barangay conciliation proceeding, the residence of the real-
party-in-interest, the plaintiff or defendant, as the case may be, and not the residence of the
attorney-in-fact is material in any barangay conciliation proceeding, because attorney-in-fact
is not the real party-in-interest (Pascual vs. Pascual, 2005; Abagatnan vs. Clarito, G.R.
211966); the requirement under Section 412 of the 1991 Local Government Code that a case
be referred for conciliation before the Lupon as a precondition to its filing in court applies
only to those cases where the real parties-in-interest actually reside in the same city or
municipality (Banting vs. Spouses Maglapuz, 2006).

Real parties-in-interest Estate as party, not the administrator:

Take note that complaints by or against corporations, partnerships or other juridical
entities may not be filed with, received or acted upon by the barangay for conciliation. Estate
as party, not the administrator, condition precedent is not necessary, because estate is a
juridical entity that has a personality, which is separate and distinct from that of
administrator (4-5-17) (Uy vs. Fernandez, G.R. No. 200612).
 A real party-in-interest is the party who stands to be benefited or injured by the
judgment of the suit, or the party entitled to the avails of the suit (Carandang vs. Heirs of De
Guzman, 2006).

TAKE NOTE also of the case of Aquino vs. Aure, 2008, that the non-recourse to the
barangay conciliation process IS NOT a jurisdictional flaw to warrant the dismissal of the
case; on that ground the trial court cannot motu proprio dismiss the case, because the 1997
Rules of Civil Procedure provide only three instances when the court may motu proprio
dismiss the claim, viz: when the pleadings or evidence on the record show that: (1) the court
has no jurisdiction over the subject matter; (2) there is another cause of action pending
between the same parties for the same cause; or (3) where the action is barred by a prior
judgment or by a statute of limitations. This ground (no-referral to the Lupon is not being
among those mentioned. Therefore, trial court cannot dismiss a case on its own initiative.

Summons:
The general rule in this jurisdiction is that summons must be served personally on the
defendant. Section 6, Rule 14 of the Rules of Court provides:

Sec. 6. Service in person on defendant. -Whenever practicable, the

summons shall be served by handing a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.

For justifiable reasons, however, other modes of serving summons may be resorted to.
When the defendant cannot be served personally within a reasonable time after efforts to
locate him have failed, the rules allow summons to be served by substituted service.
Substituted service is effected by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion then residing therein, or by
leaving the copies at defendant's office or regular place of business with some competent
person in charge thereof.
When the defendant's whereabouts are unknown, the rules allow service of summons
by publication. As an exception to the preferred mode of service, service of summons by
publication may only be resorted to when the whereabouts of the defendant are not only
unknown, but cannot be ascertained by diligent inquiry. The diligence requirement means
that there must be prior resort to personal service under Section 7 and substituted service
under Section 8, and proof that these modes were ineffective before summons by
publication may be allowed. This mode also requires the plaintiff to file a written motion for
leave of court to effect service of summons by publication, supported by affidavit of the
plaintiff or some person on his behalf, setting forth the grounds for the application.
Substituted service presupposes that the place where the summons is being served is
the defendant's current residence or office/regular place of business. Thus, where the
defendant neither resides nor holds office in the address stated in the summons, substituted
service cannot be resorted to. Not being a resident of the address where the summons was
served, the substituted service of summons is ineffective (Express Padala vs. Ocampo, G.R.
No. 202505).
 Substituted service may be effected (a) by leaving copies of the summons at the
defendant's dwelling house or residence with some person of suitable age and discretion
then residing therein, or (b) by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof The terms "dwelling house" or
"residence" are generally held to refer to the time of service, hence it is not sufficient "to
leave the copy at defendant's former dwelling house, residence, or place of abode, as the
case may be, after his removal therefrom." They refer to the place where the person named
in the summons is living at the time when the service is made, even though he may be
temporarily out of the country at the time. Similarly, the terms "office" or "regular place of
business" refer to the office or place of business of defendant at the time of service. Note
that the rule designates the persons to whom copies of the process may be left. The rule
presupposes that such a relation of confidence exists between the person with whom the
copy is left and the defendant and, therefore, assumes that such person will deliver the
process to defendant or in some way give him notice thereof (Keister vs. Navarro, 1977).

On Pleadings
Filing a motion to dismiss in cases
covered by the Rules on Summary Procedure:
Take note that in ejectment cases (summary procedure case) filing a motion to dismiss
complaint is not prohibited. So, if what is filed is an answer asserting as one of the special
affirmative defenses is the non-referral to the lupon, and not a motion to dismiss, the issue
of non-referral can no longer be brought on appeal because it is deemed waived, because,
the non-referral issue is not among the non-waiveable grounds. This is a personal opinion
relying on the case of Royales vs. IAC, 1984, said: Ordinarily, non-compliance with the
condition precedent prescribed by P.D. 1508 could affect the sufficiency of the plaintiff's
cause of action and make his complaint vulnerable to dismissal on ground of lack of cause of
action or prematurity; but the same would not prevent a court of competent jurisdiction from
exercising its power of adjudication over the case before it, where the defendants, as in this
case, failed to object to such exercise of jurisdiction in their answer and even during the entire
proceedings a quo.

On motion to dismiss on laches ground:

One of the enumerated grounds to move to dismiss the case under Section 1of Rule 16
of the Rules of Court is if the action is barred by statute of limitations.
Is laches included?
No. Defense of laches is evidentiary in nature and cannot be established by mere
allegations in the pleadings. Without solid evidentiary basis, laches cannot be a valid ground
to dismiss respondents' complaint (Macababbad vs. Masirag, 2009).
Dismissal based on laches cannot also apply in this case, as it has never reached the
presentation of evidence stage and what the RTC had for its consideration were merely the
parties pleadings. Laches is evidentiary in nature and cannot be established by mere
allegations in the pleadings. Without solid evidentiary basis, laches cannot be a valid ground
to dismiss the respondents complaint (Ungria vs. CA, 2011).
 On motion to dismiss on indispensable party issue:
Indispensable parties as those who are parties in interest without whom no final
determination can be had of an action. They are those parties who possess such an interest
in the controversy that a final decree would necessarily affect their rights so that the courts
cannot proceed without their presence. A party is indispensable if his interest in the subject
matter of the suit and in the relief sought is inextricably intertwined with the other parties'
interest.
Take note that if indispendable party who is supposed to be impleaded in the
complaint was not impleaded as such, such failure to implead is not dismissible per se. The
complaint may be dismissed only upon motion of the defendant or upon the courts own
motion if the plaintiff to whom the order to include the indispensable party is directed
refuses to comply with the order of the court.
The general rule with reference to the making of parties in a civil action requires the
joinder of all indispensable parties under any and all conditions, their presence being a sine
qua non of the exercise of judicial power (Borlasa vs. Polistico, 47 Phil. 345).
When it appears of record that there are other persons interested in the subject
matter of the litigation, who are not made parties to the action, it is the duty of the court to
suspend the trial until such parties are made either plaintiffs or defendants (Pobre, et al.
vs. Blanco, 17 Phil. 156).

On Motion to dismiss only alleging/claiming prescription.

What is the effect to other grounds available for the dismissal of the case but not
alleged in the Motion?
A motion to dismiss based on prescription hypothetically admits the allegations
relevant and material to the resolution of this issue, but not the other facts of the case
(Halimao vs. Villanueva, 1996).

Motion to dismiss filed on ground of prescription vs. bill of particulars.

Defendants motion to dismiss on ground of prescription is ordered denied by the trial
court? Can he still file a motion for bill of particulars to clarify certain material date alleged in
the complaint?

No. It is because once a motion to dismiss is filed, defendant hypothetically admits the
truth of the material allegations of the ultimate facts contained in the plaintiffs complaint
(Davao Light & Power Co. vs. Judge, Regional Trial Court, Davao City, 2006; Vitangcol vs.
New Vista Properties, 2009).

When a motion to dismiss is filed, the material allegations of the complaint are
deemed to be hypothetically admitted (Spouses Jayme and Ana Solidarios vs. Alampay, 159
Phil. 149; Municipality of Hagonoy, Bulacan vs. Judge Dumdum, Jr., 2010).

The hypothetical admission extends not only to the relevant and material facts well
pleaded in the complaint, but also to inferences that may be fairly deduced from them
(Viewmaster Construction Corporation vs. Roxas (390 Phil. 872) and Navoa vs. CA, 1995).
 TAKE NOTE: A motion to dismiss based on prescription hypothetically admits the
allegations relevant and material to the resolution of this issue, but not the other facts of the
case (Halimao vs. Villanueva, 1996).

ALSO ON PLEADINGS:
Though beyond the coverage of the syllabus, but it is a possible topic because you
will be covered by this Rule (IN GODs NAME): This is also possible in your Legal Ethics
asking your legal duty in the community after passing this Bar.

Question: A.M. No. 17-03-09-SC RULE ON COMMUNITY LEGAL AID SERVICE (October
2017): The rule is that an unsigned pleading produces no legal effect. Under A.M. No. 19-03-
09-SC, dated October 2017, otherwise known as the Rule on Community Legal Service, will
those pleadings soon to be filed in court sans bearing the co-signature by the supervising
lawyer still produce legal effect?

Yes. Signing of Pleadings -Any and all pleadings, motions, briefs, memoranda, or other
papers to be filed in court or any quasi-judicial agency must be signed by the covered lawyers
and co-signed by the chairperson of the IBP Chapter Legal Aid Committee, or the
chairperson, director, or supervising partner or lawyer from the Accredited Legal Aid Service
Provider. The pleadings may be signed solely by the covered lawyers only in the event the
chairperson of the IBP Chapter Legal Aid Committee or the chairperson, director, or
supervising partner or lawyer from the Accredited Legal Aid Service Provider is unavailable
but such signature page shall indicate who the supervising lawyers are.

On Certification against forum shopping:

Section 5, Rule 7 of the Rules of Court provides:
Section 5. Certification against forum shopping. -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:
(a) that he has not theretofore 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;
(b) if there is such other pending action or claim, a complete statement of the
present status thereof; and
(c) 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 five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be 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
therein shall constitute indirect 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 ground for summary dismissal with
prejudice and shall constitute direct contempt, as well as a cause for administrative
sanctions.

What are the twofold compliance requirements of Certification against forum

shopping?
Ans.: (1) the non-commission of forum-shopping itself, and (2) the submission of the
certification against forum-shopping (Spouses Melo vs. CA, 1999).

The essence of forum-shopping:

The essence of forum-shopping is the filing of multiple suits involving the same parties
for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment.
It exists where the elements of litis pendentia are present or where a final judgment in
one case will amount to res judicata in another.
On the other hand, for litis pendentia to be a ground for the dismissal of an action, the
following requisites must concur:
(a) identity of parties, or at least such parties who represent the same interests in both
actions;
(b) identity of rights asserted and relief prayed for, the relief being founded on the
same facts; and
(c) the identity with respect to the two preceding particulars in the two cases is such
that any judgment that may be rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other case.

With respect to res judicata, the following requisites must concur to bar the institution
of a subsequent action:
(1) the former judgment must be final;
(2) it must have been rendered by a court having jurisdiction over the subject matter
and [over] the parties;
(3) it must be a judgment on the merits; and
(4) there must be, between the first and second actions,
(a) identity of parties,
(b) identity of subject matter, and
(c) identity of cause of action (Bradford United Church of Christ vs. Ando,
2016).

The Chairmans favorite:

What is res judicata? What is the purpose of the doctrine (RJ)?
What is the doctrine of conclusiveness of judgment?
What is the difference between preclusions of issues (or collateral estoppels) and
preclusions of claims?
- Res judicata means matter adjudged: a thing judicially acted upon or
decided; a thing or matter settled by judgment. This is known also as estoppels per
rem judicatum. It involves both cause of action estoppels and issue estoppels. The
 purpose of the doctrine is 2-fold: first to prevent unnecessary proceedings
involving expenses to the parties and wastage of the courts time which could be
used by others; second, to avoid stale litigations as well as to enable to the
defendant to know the extent of the claims being made arising out of the same
single incident.
- Conclusiveness of judgment means that an issue actually and directly
passed upon and determined in a former suit cannot again be drawn in question in
any future action between the same parties involving different cause of action. It is
also known as collateral estoppels or preclusion of issues, as distinguished from
preclusion of claims, or res judicata. It does not apply to issues of law, at least
when substantially unrelated claims are involved; or to a case where a new
determination is warranted in order to take account of an intervening change in
the applicable legal context or otherwise to avoid inequitable administration of the
laws (discussed in the Book of the Chairman).

TAKE NOTE: No forum shopping, no res judicata if the plaintiff filed an ejectment case
and later on filed an Ex-Parte Petition for Issuance of Writ of Possession. There being no
identity or similarity of action between the two proceedings with the latter being just an
incident in the transfer of title.

TAKE NOTE: the filing of the summary action for unlawful detainer during the
pendency of an action for recovery of ownership of the same parcel of Land subject of the
summary action of unlawful detainer does not amount to forum-shopping.
VERY CLEAR: NO FORUM SHOPPING
There is only identity of parties between the summary action of unlawful detainer and
the land ownership recovery case. The issues are not identical or similar in the two cases.
The issue in the unlawful detainer case is which party is entitled to, or should be awarded,
the material or physical possession of the disputed parcel of land, (or possession thereof as a
fact); whereas the issue in the action for recovery of ownership is which party has the right
to be recognized as lawful owner of the disputed parcels of land.

Certification against forum shopping apply both to natural and juridical persons:
In Zulueta vs. Asia Brewery, Inc. (2001), the High Court ruled that the requirements
under the Rules of Court involving the certification against forum shopping apply both to
natural and juridical persons, to wit: "[t]he requirement that the petitioner should sign the
certificate of non-forum shopping applies even to corporations, considering that the
mandatory directives of the Circular and the Rules of Court make no distinction between
natural and juridical persons."
In Fuentebella vs. Castro (2006), the High Court held that the certification against
forum shopping must be signed by the principal party. In case the principal party cannot sign,
the one signing on his or her behalf must have been duly authorized, to wit: "the petitioner
or the principal party must execute the certification against forum shopping. The reason for
this is that the principal party has actual knowledge whether a petition has previously been
filed involving the same case or substantially the same issues. If, for any reason, the principal
party cannot sign the petition, the one signing on his behalf must have been duly
authorized."
Juridical persons, including corporations, that cannot personally sign the certification
against forum shopping, must act through an authorized representative. The exercise of
corporate powers including the power to sue is lodged with the board of directors which acts
as a body representing the stockholders. For corporations, the authorized representative to
sign the certification against forum shopping must be selected or authorized collectively by
the board of directors.
In Eslaban, Jr. vs. Vda. de Onorio (2001), the High Court ruled that if the real party in
interest is a corporation, an officer of the corporation acting alone has no authority to sign
the certification against forum shopping. An officer of the corporation can only validly sign
the certification against forum shopping if he or she is authorized by the board of directors
through a board resolution or secretary's certificate.
In Gonzales vs. Climax Mining Ltd. (2005), the High Court ruled that a board resolution
authorizing a corporate officer to execute the certification against forum shopping is a
necessary requirement under the Rules. A certification signed by a person who was not duly
authorized by the board of directors renders the petition for review subject to dismissal. The
authority of the representative of a corporation to sign the certification against forum
shopping originates from the board of directors through either a board of directors'
resolution or secretary's certificate which must be submitted together with the certification
against forum shopping.
In Zulueta (2001), this Court declared invalid a petition for review with a certification
against forum shopping signed by the party's counsel which was not supported by a board
resolution or secretary's certificate proving the counsel's authority. This Court dismissed the
case and held: "[t]he signatory in the Certification of the Petition before the CA should not
have been respondents' retained counsel, who would not know whether there were other
similar cases of the corporation. Otherwise, this requirement would easily be circumvented
by the signature of every counsel representing corporate parties."
In Eslaban (2001), the High Court held that a certification signed by counsel alone is
defective and constitutes a valid cause for the dismissal of the petition.
In DBP vs. CA (2004), the High Court held that the failure to attach a copy of a board
resolution proving the authority of the representative to sign the certification against forum
shopping was fatal to its petition and was sufficient ground to dismiss since the courts are
not expected to take judicial notice of board resolutions or secretary's certificates issued by
corporations.

ON APPEAL:
Unresolved issue on appeal:
Upon receipt of the summons, Defendant Pedro moved to dismiss the complaint on
the ground that Plaintiff Joses cause of action is barred by prescription and Mario being an
indispensable party was not impleaded by Plaintiff Jose. RTC granted Defendant Pedros
motion on ground of prescription and failure of Plaintiff Jose to implead the indispensable
party, Mario. On appeal, Plaintiff Jose assigned as error that the action is not barred by
prescription and no need to implead Mario as he is not an indispensable party, the Higher
Court reversed the RTC ruling and reinstated the complaint holding that the Plaintiff Joses
cause of action is not barred by prescription. Defendant Pedro sought the High Courts
reviewing power arguing that for failure of the Higher Court to rule on the assigned error
that the RTC erred in ruling dismissing the complaint on the ground of Plaintiff Joses failure
to implead Mario as indispensable party the issue had become final and executory for failure
to rule on the issue. Is Defendant Pedros contention tenable?

RULING: The argument lacks legal basis as nothing in the Rules of Court states that the
failure of an appellate court to rule on an issue raised in an appeal renders the appealed
order or judgment final and executory with respect to the undiscussed issue. A court need
not rule on each and every issue raised, particularly if the issue will not vary the tenor of the
Court's ultimate ruling. It is enough to explain that the courts are not required to decide each
and every question of law raised by one party, regardless of its materiality to the litigation
(Macababbad vs. Masirag, 2009).
Memorandum Decision:
Requirements:
Section 40 of B.P. Blg. 129 reads as follows:
Sec. 40. Form of decision in appealed cases. Every decision or final resolution of a
court in appealed cases shall clearly and distinctly state the findings of fact and the
conclusions of law on which it is based which may be contained in the decision or final
resolution itself, or adopted by reference from those set forth in the decision, order or
resolution appealed from.
If the decision of the appellate court actually reproduces the findings of fact or the
conclusions of law of the court below, it is not a memorandum.
The distinctive features of the memorandum decision are, first, it is rendered by an
appellate court, and second, it incorporates by reference the findings of fact or the
conclusions of law contained in the decision, order or ruling under review. Most likely, the
purpose is to affirm the decision, although it is not impossible that the approval of the
findings of fact by the lower court may lead to a different conclusion of law by the higher
court. At any rate, the reason for allowing the incorporation by reference is evidently to
avoid the cumbersome reproduction of the decision of the lower court, or portions thereof,
in the decision of the higher court. The Idea is to avoid having to repeat in the body of the
latter decision the findings or conclusions of the lower court since they are being approved
or adopted anyway.
The memorandum decision, to be valid, cannot incorporate the findings of fact and the
conclusions of law of the lower court only by remote reference, which is to say that the
challenged decision is not easily and immediately available to the person reading the
memorandum decision. For the incorporation by reference to be allowed, it must provide
for direct access to the facts and the law being adopted, which must be contained in a
statement attached to the said decision. In other words, the memorandum decision
authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact and
conclusions of law of the lower court in an annex attached to and made an indispensable
part of the decision.
It is expected that this requirement will allay the suspicion that no study was made of
the decision of the lower court and that its decision was merely affirmed without a proper
examination of the facts and the law on which it was based. The proximity at least of the
annexed statement should suggest that such an examination has been undertaken. It is, of
course, also understood that the decision being adopted should, to begin with, comply with
Article VIII, Section 14 as no amount of incorporation or adoption will rectify its violation.
The Court finds it necessary to emphasize that the memorandum decision should be
sparingly used lest it become an addictive excuse for judicial sloth. It is an additional
condition for its validity that this kind of decision may be resorted to only in cases where the
facts are in the main accepted by both parties or easily determinable by the judge and there
are no doctrinal complications involved that will require an extended discussion of the laws
involved. The memorandum decision may be employed in simple litigations only, such as
ordinary collection cases, where the appeal is obviously groundless and deserves no more
than the time needed to dismiss it (Francisco vs. Permskul, 1989).

On appeal, may the appellate court consider matters not in the record of the appeal?
Yes, applying the doctrine of judicial notice. This is an exception to the general rule.
When a fact is notorious and commonly known without any evidence being necessary
to prove it, the appellate court may rightly take cognizance of it.
The two categories of facts subject of judicial notice are the following:
Mandatory judicial notice such as the existence of territorial extent of estates; the
political history, forms of government, and symbols of nationality of states; the law of
nations; the admiralty and maritime courts of the world and their seals; the political
constitution and history of the Philippines; the official acts of the legislative, executive and
judicial departments of the government; the laws of nature; the measure of time; and the
geographical divisions (Rule 129, Section 1, Rules of Court discussed in the Book of the
Chairman).
Discretionary judicial notice: matters which are of public knowledge; matters capable;
of unquestionable demonstration; matters which ought to be known to judges because of
their judicial functions (Rule 129, Section 2, Rules of Court discussed in the Book of the
Chairman).

On Appeal:
Three (3) modes of appeal from decisions of the RTC:
(1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was
rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction.
(This mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed
questions of fact and law).

(2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC
in the exercise of its appellate jurisdiction; and
(This mode of appeal is brought to the CA on questions of fact, of law, or mixed
questions of fact and law).

(3) by a petition for review on certiorari before the Supreme Court under Rule 45.
 (This mode of appeal is elevated to the Supreme Court only on questions of law).
(Republic vs. Sunvar, 2012).

There is a question of law when the issue does not call for an examination of
the probative value of the evidence presented or of the truth or falsehood of the facts being
admitted, and the doubt concerns the correct application of law and jurisprudence on the
matter. The resolution of the issue must rest solely on what the law provides on the given set
of circumstances (Republic vs. Sunvar, 2012).

Decision
Remedy of MR or Appeal if dispositive portion does not jibe with the ruling:
Jurisprudence holds that it is the dispositive portion of the decision that controls for
purposes of execution. If petitioners believed that the dispositive portion of the June 15,
1992 Decision is questionable, they should have filed a motion for reconsideration or appeal
before the said Decision became final and executory. But as pointed out earlier, while
petitioners filed a Motion for Partial Reconsideration, they did not raise therein the
supposed error of the court in declaring the properties enumerated in the dispositive
portion of the Decision as comprising the estate of Aruego. They also failed to appeal the
Decision and thereby lost the chance to question the Decision and seek a modification or
amendment thereof. The inevitable result of their failure to timely question the Decision is
for them to be bound by the pronouncements therein. To reiterate, once a decision has
attained finality, '"not even this Court could have changed the trial court's disposition
absent any showing that the case fell under one of the recognized exceptions." As amply
discussed above, this case does not fall under any of the recognized exceptions (Torres vs.
Aruego, G.R. No. 201271).

Findings of fact of the trial court given great weight and respect, exceptions:
The rule is that the findings of fact of the trial court, especially when affirmed by the
CA, are accorded great weight and respect and will not be disturbed on appeal. Exceptions:
(1) where the conclusion is a finding grounded on speculations, surmises and
conjectures;
(2) where the inference made is manifestly mistaken;
(3) where there is grave abuse of discretion;
(4) where the judgment is based on misapprehension of facts; and
(5) the the findings of the trial court are premised on the absence of evidence and are
contradicted by the evidence on record (Pareno vs. Sandiganbayan, 326 Phil. 255, 279
(1996), cited in Uyboco vs. People, 749 Phil. 987, 992 (2014).
(6) when in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to that of the trial court;
(8) when the findings 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 petitioner's main and reply
briefs are not disputed by the respondent;
 (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; or
(11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different conclusion
(DBP vs. TRB, 2010).

On Certiorari
Declaratory Relief
Mandamus
Prohibition
Case:
The JBCs five (5) year minimum requirement policy is embodied in its rules and
procedures.
Judge Hapilong is on his fourth year as Regional Trial Court judge in Marawi City. He
applied for promotion to the Sandiganbayan. However, his application was rejected by the
Judicial and Bar Council (JBC) on the ground that he has not yet reached the minimum five
(5) year stay policy in the Regional Trial Court as judge. Judge Hapilong challenged the JBC
said JBC Policy.
(a) Can JBC be corrected be challenged via certiorari, prohibition, declaratory relief
action, or mandamus

Procedurally, No, because the JBC does not fall within the scope of a tribunal, board,
or officer exercising judicial or quasi-judicial functions. In the process of selecting and
screening applicants, the JBC neither acted in any judicial or quasi-judicial capacity nor
assumed unto itself any performance of judicial or quasi-judicial prerogative.
However, since the formulation of guidelines and criteria, including the policy that the
petitioner now assails, is necessary and incidental to the exercise of the JBC's constitutional
mandate as it is conferred by the Constitution to the JBC, a determination must be made on
whether the JBC has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy (See Judge Villanueva vs. JBC, 2015).

Is JBCs act in rejecting the applicants application correctible by mandamus?

No.
The remedy of mandamus cannot be availed of by the petitioner in assailing JBC's
policy. The petitioner insisted that mandamus is proper because his right was violated when
he was not included in the list of candidates for the RTC courts he applied for. He said that
his non-inclusion in the list of candidates for these stations has caused him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant should have a
clear legal right to the thing demanded and it must be the imperative duty of the respondent
to perform the act required. The petitioner bears the burden to show that there is such a
clear legal right to the performance of the act, and a corresponding compelling duty on the
part of the respondent to perform the act. The remedy of mandamus, as an extraordinary
writ, lies only to compel an officer to perform a ministerial duty, not a discretionary one.
Clearly, the use of discretion and the performance of a ministerial act are mutually exclusive.
 The writ of mandamus does not issue to control or review the exercise of discretion or
to compel a course of conduct, which, it quickly seems to us, was what the petitioner would
have the JBC do in his favor. The function of the JBC to select and recommend nominees for
vacant judicial positions is discretionary, not ministerial. More so, the petitioner cannot claim
any legal right to be included in the list of nominees for judicial vacancies. Possession of the
constitutional and statutory qualifications for appointment to the judiciary may not be used
to legally demand that one's name be included in the list of candidates for a judicial vacancy
(Judge Villanueva vs. JBC, 2015).

Can JBCs act be challenged via declaratory relief action?

No.
The petition for declaratory relief is improper. "An action for declaratory relief should
be filed by a person interested under a deed, a will, a contract or other written instrument,
and whose rights are affected by a statute, an executive order, a regulation or an ordinance.
The relief sought under this remedy includes the interpretation and determination of the
validity of the written instrument and the judicial declaration of the parties' rights or duties
thereunder. The purpose of the action is to secure an authoritative statement of the rights
and obligations of the parties under a statute, deed, contract, etc., for their guidance in its
enforcement or compliance and not to settle issues arising from its alleged breach."
In this case, the petition for declaratory relief did not involve an unsound policy.
Rather, the petition specifically sought a judicial declaration that the petitioner has the right
to be included in the list of applicants although he failed to meet JBC's five-year requirement
policy. Again, the Court reiterates that no person possesses a legal right under the
Constitution to be included in the list of nominees for vacant judicial positions. The
opportunity of appointment to judicial office is a mere privilege, and not a judicially
enforceable right that may be properly claimed by any person. The inclusion in the list of
candidates, which is one of the incidents of such appointment, is not a right either. Thus, the
petitioner cannot claim any right that could have been affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this Court does not
have original jurisdiction over a petition for declaratory relief even if only questions of law
are involved. The special civil action of declaratory relief falls under the exclusive jurisdiction
of the appropriate RTC pursuant to Section 19 of Batas Pambansa Blg. 129, as amended by
R.A. No. 7691 (Judge Villanueva vs. JBC, 2015).

Can High Court consider issues which are not raised by either party in cases brought
before it?
Yes, if the issues are necessary for the complete resolution of the cases (Dinio vs.
Laguesma, 1997).
If the High Court can review unassigned errors which are necessary to arrive at a just
resolution of the case, with all the more reason can it review a matter raised as a defense by
a party to uphold the validity of a resolution assailed in the case (Marmeto vs. COMELEC,
G.R. No. 213953).

Criminal Procedure
 Can a pending specific performance case with the HLURB (an administrative agency)
be considered a prejudicial question to justify suspension of the criminal proceedings?
Yes. An action for specific performance is an action civil in nature but could not be
instituted elsewhere except in the HLURB, whose jurisdiction over the action is exclusive and
original.
That the action for specific performance is an administrative case pending in the
HLURB, instead of in a court of law, is of no consequence at all. The determination of
whether the proceedings ought to be suspended because of a prejudicial question rested on
whether the facts and issues raised in the pleadings in the specific performance case were so
related with the issues raised in the criminal complaint for the violation of Presidential
Decree No. 957, such that the resolution of the issues in the former would be determinative
of the question of guilt in the criminal case. An examination of the nature of the two cases
involved is thus necessary (SMB vs. Secretary Nani B. Perez, G.R. No. 166836, September 04,
2013).

Criminal Procedure
On Prescription
Estafa case:
The filing of the complaint for estafa even if it be merely for purposes of preliminary
examination or investigation, should and does interrupt the period of prescription of the
criminal responsibility, even if the court where the complaint or information is filed cannot
try the case on its merits (People vs. Olarte, 1967).

Criminal Procedure
Evidence
Warrantless arrest
Admissibility of evidence:
Section 2, Article III of the 1987 Constitution mandates that a search and seizure must
be carried out through or on the strength of a judicial warrant predicated upon the existence
of probable cause, absent which, such search and seizure becomes "unreasonable" within
the meaning of said constitutional provision. To protect the people from unreasonable
searches and seizures, Section 3 (2), Article III37 of the 1987 Constitution provides that
evidence obtained from unreasonable searches and seizures shall be inadmissible in
evidence for any purpose in any proceeding. In other words, evidence obtained and
confiscated on the occasion of such unreasonable searches and seizures are deemed tainted
and should be excluded for being the proverbial fruit of a poisonous tree.
One of the recognized exceptions to the need for a warrant before a search may be
effected is a search incidental to a lawful arrest. In this instance, the law requires that there
first be a lawful arrest before a search can be made-the process cannot be reversed.
A lawful arrest may be effected with or without a warrant. With respect to the latter,
the parameters of Section 5, Rule 113 of the Revised Rules of Criminal Procedure should -as a
general rule -be complied with: Section 5.
 Arrest without warrant; when lawful. -A peace officer or a private person may, without
a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 7 of Rule 112 (Peralta vs. People, G.R. No.
221991).

The aforementioned provision identifies three (3) instances when warrantless arrests
may be lawfully effected. These are:
(a) an arrest of a suspect in fiagrante delicto;
(b) an arrest of a suspect where, based on personal knowledge of the arresting officer,
there is probable cause that said suspect was the perpetrator of a crime which had
just been committed; and
(c) an arrest of a prisoner who has escaped from custody serving final judgment or
temporarily confined during the pendency of his case or has escaped while being
transferred from one confinement to another.

In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must
concur, namely:
(a) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of the arresting officer.
On the other hand, Section 5 (b ), Rule 113 requires for its application that at the time
of the arrest, an offense had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the accused had committed it.
In both instances, the officer's personal knowledge of the fact of the commission of an
offense is essential. Under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure,
the officer himself witnesses the crime; while in Section 5 (b) of the same, he knows for a
fact that a crime has been committed (Comerciante vs. People, 2015).

Evidence

Take Note:
Qualification of Witness
 That a witness is a person who testifies in a cause or gives evidence before a court of
justice.
That all persons who can perceive, and perceiving can make known their perception to
others, may be witnesses.
That religious or political belief, interest in the outcome of the case, or conviction of a
crime unless otherwise provided by law, shall not be a ground for disqualification.
That conviction of a crime is not a ground for disqualification, unless otherwise
provided by law. Disqualifications:
(1) cannot be discharged as state witness (Rule 119, Section 9);
(2) convicted of falsification of a document, perjury or false testimony are
disqualified from being witnesses to a will (Art. 821, Civil Code).
That the G.R. is: a witness is always presumed competent.
Test of competency: - deemed competent if he has the ability to observe, recollect and
communicate the essentials about upon which he is called to testify with accuracy sufficient
to make the narration correspond to the knowledge and the recollection - he must
appreciate the nature and obligation of an oath.
That to declare a witness as incompetent: - there must be an objection; - be proof of
incompetency; - incompetency must be established; - must be proved by the party objecting
to the competency of a witness.

That incompetency is waived: if no objection; - if the testimony will favor the adverse
partys case; - if the witness is cross-examined.

That disqualification of a witness on ground of mental incapacity is waived if no

objection is timely made; - if the testimony will favor the adverse partys case; and - if the
witness is cross-examined.

That child is not disqualified to testify, because all persons who can perceive, and
perceiving can make known their perception to others, may be witnesses. Exception: if
childs mental maturity is such as to render him/her incapable of perceiving the facts
respecting which he/she is examined.

Child witness:
at the time of giving testimony is below the age of eighteen (18) years.
In child abuse cases, a child includes one over eighteen (18) years but is found by the
court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition
Sec. 6. Competency.Every child is presumed qualified to be a witness. However, the
court shall conduct a competency examination of a child, motu proprio or on motion of a
party, when it finds that substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the
truth in court.

That if the competency of a child is disputed:

 -courts function to resolve the question as to whether the proposed witness has the
requisite understanding and capacity
-court may also allow the attorneys to make inquiry
-examination should show that the child has some understanding of the punishment
which may result from false swearing; but the courts have not insisted on a very definite or
exact knowledge of this subject.

Marital disqualification rule:

During their marriage, neither the husband nor 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 the other against the other or the
latters direct descendants or ascendants.
The rule applies to any form of testimony; therefore it protects against using the
spouse-witness admission, or against compelling him (or her) to produce documents.
But, res gestae declarations of husband and wife are admissible for or against each
other, even though each is incompetent to testify.

Marital disqualification rule is waived when (3): the accused is deemed to have waived
his or her privilege by calling the other spouse as a witness for him or her, thereby making
the spouse subject to cross-examination in the usual manner; the accused introduces his
wife as a witness in his behalf, the state is entitled to question her as to all matters germane
and pertinent to her testimony on direct examination; and by the failure of the accused to
make timely objection to the admission of the spouses testimony.
The rule that the husband cannot be examined for or against his wife without her
consent and vice versa recognizes the following exceptions: (a) that the case in which the
husband or the wife is called to testify is not a civil case instituted by one against the other,
(b) that it is not a criminal case for a crime committed by one against the other.
Marital disqualification rule ceases when the marriage is dissolved by death, there is
no more marriage, and therefore, the privilege can no longer be claimed.

What are the essential requisites before a dead mans statute or survivorship rule can
be invoked?
Ans. Before this rule can be successfully invoked to bar the introduction of testimonial
evidence, it is necessary that: 1. The witness is a party or assignor of a party to case or
persons in whose behalf a case in prosecuted; 2. The action is against an executor or
administrator or other representative of a deceased person or a person of unsound mind; 3.
The subject-matter of the action is a claim or demand against the estate of such deceased
person or against person of unsound mind; 4. His testimony refers to any matter of fact of
which occurred before the death of such deceased person or before such person became of
unsound mind (Sunga-Chan vs. Chua, August 15, 2001).
A mere witness
Mere witnesses who are not included in the above enumeration are not prohibited
from testifying as to a conversation or transaction between the deceased and a third person,
if he took no active part therein, because the rule is exclusive and cannot be construed to
extend its scope by implication so as to disqualify persons not mentioned therein (Sanson vs.
CA, April 22, 2003).
Failure to seasonably invoke disqualification under dead mans statute is deemed a
waiver.
The protection under the dead man's statute is effectively waived when the adverse
partys counsel cross-examines the witness on matters occurring during the deceased's
lifetime.
This is true also if the party fails to timely challenge the order denying the motion to
disqualify the witness under dead mans statute and allow the trial ensued and the witness
was crossed examined, because failure to appeal from the order allowing the witness testify
is deemed a waiver of his/her right to invoke the dead man's statute (Santos vs. Santos,
October 2, 2001).

PROSECUTORS DUTY WHEN PROSECUTING A CASE

It is settled that the evidence for the prosecution must stand or fall on its own merits,
and cannot be allowed to draw strength from the weakness of the evidence for the defense
(People vs. Tismo, 204 SCRA 535).
The first duty of the prosecutor is to establish the positive identification of the
accused. In every criminal prosecution, the identity of the offender, like the crime itself, must
be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is
not to prove the crime but to prove the identity of the criminal, for even if the commission of
the crime can be established, there can be no conviction without proof of identity of the
criminal beyond reasonable doubt (People vs. Caliso, 2011).
People vs. Maguing, 2003, said that in every criminal prosecution, the prosecution
must prove two things: (1) the commission of the crime and (2) the identification of the
accused as the perpetrator of the crime. Cursory identification does not suffice to convict the
accused. What is needed is that positive identification was made with moral certainty as to
the person of the offender.

Statute of frauds application

Evidence application:
The Statute of Frauds is applicable only to contracts which are executory and not to
those which have been consummated either totally or partially. If a contract has been totally
or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for
it would enable the defendant to keep the benefits already derived by him from the
transaction in litigation, and at the same time, evade the obligations, responsibilities or
liabilities assumed or contracted by him thereby. This rule, however, is predicated on the fact
of ratification of the contract within the meaning of Article 1405 of the Civil Code either (1)
by failure to object to the presentation of oral evidence to prove the same, or (2) by the
acceptance of benefits under them (San Miguel Properties vs. BF Homes, G.R. No. 169343,
August 05, 2015).

Evidence:
Trafficking in Persons (RA 9208)
People vs. Rodriquez, G.R. No. 211721:
Facts: PO1 Escober together with two (2) other co-officers conducted an Oplan Bugaw.
While traversing Quezon Avenue, Rodriguez offered to them three (3) pick up girls for sexual
services. Escober handed to Rodriquez the marked money and implemented the warrantless
arrest. Only Escober was presented as prosecution witness. Trial court convicted Rodriguez.
High Court acquitted Rodriguez.

Ruling: it was held that it is not proper to convict the accused for trafficking in persons
based on the sole testimony of the arresting officer. Material details on how human
trafficking is committed cannot be established through sole testimony of the arresting
officer. The victim must be presented as witness to prove the act of recruitment, the means
used in recruiting and the purpose of trafficking; it was held also that presentation of co-
arresting officers sworn statement without calling him to the witness stand cannot be fully
relied upon, because by mere introducing the sworn statement without presenting the said
co-arresting officer to the witness stand cannot corroborate the evidence presented by the
arresting officer (People vs. Rodriquez, G.R. No. 211721).

Corroborative evidence is necessary:

Corroborative evidence is necessary when there are reasons to warrant the suspicion
that the witness falsified the truth or that his observation had been inaccurate (People vs.
Rodriquez, G.R. No. 211721 citing Rabanal vs. People, 518 Phil. 734 citing Rivera vs. People,
501 Phil. 37; People vs. Manalad, 436 Phi. 37).

However, the case of People vs. Casio (740 Phil. 458) is different. Casios conviction
was affirmed, because in that case more than one (1) credible witness, the minor victims,
were presented in court by the prosecution, and allowed to testify on the circumstances on
how they were recruited by the accused and later offered for sex in exchange for money.
High Court said in Rodriguez (G.R. No. 211721):

Apart from the deficient testimony of PO I Escober, the prosecution did not
bother to present the testimonies of the alleged victims. It is grossly erroneous to
say that "the non-presentation of the three women is not fatal to the prosecution."
Their testimonies that they were sexually exploited against their will through force,
threat or other means of coercion are material to the cause of the prosecution.
These women would be in the best position to say that Rodriguez had recruited or
used these women by giving them payments or benefits in exchange for sexual
exploitation. To rely solely on the testimony of PO I Escober as basis for convicting
 Rodriguez would run riot against logic and reason, and against the law. To sustain
this whimsical reasoning would encourage anyone to accuse a person of "trafficking
in persons" or of any other crime, without presenting the material testimony of the
alleged victim. Given that POI Escober's testimony is missing on material details,
the prosecution should have presented in court at least one of the three (3) women
that indeed they were sexually exploited or recruited by the accused for
prostitution as alleged in the information. Even a neophyte police officer of the
lowest rank would be stupefied why POI Escober and the two (2) other police
officers allegedly with him failed to get the statements of the alleged victims while
they were under police custody after the entrapment operation.

The only possible evidence that could explicitly prove the necessary elements of
the offense charged would be the joint sworn affidavit executed by the arresting
officers. Even if this document were to be considered, we remain unconvinced that
the three (3) women were offered to PO1 Escober particularly for sexual purposes.
Still, it would fail to convince us that this piece of evidence would not help the
prosecution meet the degree of proof required in criminal cases because a sworn
statement cannot be fully relied upon. We are not unmindful that affidavits are
usually abbreviated and inaccurate; oftentimes, an affidavit is incomplete and
results in inconsistencies with the declarant's testimony in court.

All said, absent any direct or circumstantial evidence to prove with moral
certainty that Rodriguez had offered three (3) women to POI Escober, his appeal
warrants an acquittal. The gravamen of the crime of human trafficking is not so
much the offer of a woman or child; it is the act of recruiting or using, with or
without consent, a fellow human being for sexual exploitation. In this case, the
prosecution miserably failed to prove this.
Under the equipoise rule, if the evidence admits two interpretations, one of which is
consistent with guilt, and the other with innocence, the accused must be given the benefit of
the doubt and should be acquitted. Rodriguez was acquitted (G.R. No. 211721).

In criminal cases, the overriding consideration is not whether the court doubts the
innocence of the accused but whether it entertains a reasonable doubt as to his guilt. Where
there is reasonable doubt as to the guilt of the accused, he must be acquitted even though
his innocence may be doubted since the constitutional right to be presumed innocent until
proven guilty can only be overthrown by proof beyond reasonable doubt (G.R. No. 211721).

Evidence
Prosecution of illegal drugs
Chain of custody
The essential elements to be duly established for a successful prosecution of offenses
involving the illegal sale of dangerous drugs, viz:
(1) the identity of the buyer and the seller, the object of the sale, and the
consideration; and
(2) the delivery of the thing sold and payment therefor.
 Briefly, the delivery of the illicit drug to the poseur-buyer and the receipt of the
marked money by the seller successfully consummate the buy-bust transaction. What is
material, therefore, is the proof that the transaction or sale transpired, coupled with the
presentation in court of the corpus delicti (People vs. Rosauro, 2015).

The failure to immediately mark the seized items, taken together with the absence of a
representative from the media to witness the inventory, without any justifiable explanation,
casts doubt on whether the chain of custody is truly unbroken. Serious uncertainty is created
on the identity of the corpus delicti in view of the broken linkages in the chain of custody.
The prosecution has the burden of proving each link in the chain of custody -from the initial
contact between buyer and seller, the offer to purchase the drug, the payment of the buy-
bust money, and the delivery of the illegal drug. The prosecution must prove with certainty
each link in this chain of custody and each link must be the subject of strict scrutiny by the
courts to ensure that law-abiding citizens are not unlawfully induced to commit an offense
(People v. Bartolini, 2016).

Presenting in court the corpus delicti is not rote function, but a tedious undertaking.
Much had already been said about the unique characteristic of narcotic substances -that they
are not readily identifiable and prone to tampering, alteration, or substitution9 -which
justifies the Court's imposition of a more exacting standard before they could be accepted as
evidence, if only to render it improbable that the integrity or identity of the original item had
been compromised (Malilin vs. People, 2008).

Chain of Custody:
The integrity and evidentiary value of seized items are properly preserved for as long
as the chain of custody of the same are duly established.
"Chain of Custody' means the duly recorded authorized 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. Such
record of movements and custody of seized item shall include the identity and
signature of the person who had temporary custody of the seized item, the date
and time when such transfer of custody was made in the course of safekeeping
and use in court as evidence, and the final disposition." There are links that must
be established in the chain of custody in a buy-bust situation, namely: "first, the
seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; second, the turnover of the illegal drug
seized by the apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drug to the forensic chemist
for laboratory examination; and, fourth, the turnover and submission of the
marked illegal drug seized from the forensic chemist to the court (People vs.
Salvador, 2014).

Section 21 of R.A. 9165, as amended by R.A. 10640:

 Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. -The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors
and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment
so confiscated, seized and/or surrendered, for proper disposition in the following manner: (
1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation, conduct a physical inventory of
the seized items and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel,
with an elected public official and a representative of the National Prosecution Service or the
media who shall be required to sign the copies of the inventory and be given a copy thereof:
Provided, That the physical inventory and photograph shall be conducted at the place where
the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending . officer/team, whichever is practicable, in case of warrantless seizures:
Provided, finally, That noncompliance of these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid such seizures and custody
over said items.

Evidence
Relaxation of Section 21 and held that the
subsequent marking at the police station is valid:
Non-compliance is not fatal only when there are (1) justifiable grounds and (2) the
integrity and evidentiary value of the seized items are properly preserved. And while the
amendment of RA 9165 by RA 10640 now allows the conduct of physical inventory in the
nearest police station, the principal concern remains to be the preservation of the integrity
and evidentiary value of the seized items. In this case, however, the prosecution offered no
explanation at all for the noncompliance with Section 21, more particularly that relating to
the immediate marking of the seized items (People v. Bartolini, 2016).

As a rule, strict compliance with the prescribed procedure is required because of the
illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and
easily open to tampering, alteration, or substitution either by accident or otherwise. The
exception found in the IRR of RA 9165 comes into play when strict compliance with the
proscribed procedures is not observed. This saving clause, however, applies only (1) where
the prosecution recognized the procedural lapses, and thereafter explained the cited
justifiable grounds, and (2) when the prosecution established that the integrity and
evidentiary value of the evidence seized had been preserved. The prosecution, thus, loses
the benefit of invoking the presumption of regularity and bears the burden of proving -with
moral certainty -that the illegal drug presented in court is the same drug that was
confiscated from the accused during his arrest (People vs. Cayas, 2016).

Evidence
 Paraffin test:
Paraffin tests, in general, have been rendered inconclusive by the High Court.
Scientific experts concur in the view that the paraffin test was extremely unreliable for
use.
It can only establish the presence or absence of nitrates or nitrites on the hand;
however, the test alone cannot determine whether the source of the nitrates or nitrites was
the discharge of a firearm.
The presence of nitrates should be taken only as an indication of a possibility or even
of a probability but not of infallibility that a person has fired a gun, since nitrates are also
admittedly found in substances other than gunpowder (People vs. Cajumoca, 2004).

Evidence
Corpus delicti:
Corpus delicti has been defined as the body or substance of the crime and, in its
primary sense, refers to the fact that a crime has been actually committed. As applied to a
particular offense, it means the actual commission by someone of the particular crime
charged. The corpus delicti is a compound fact made up of two (2) things, viz: the existence
of a certain act or result forming the basis of the criminal charge, and the existence of a
criminal agency as the cause of this act or result (See People vs. Roluna, 1994).

In the early case of People vs. Sasota (1952), the High Court affirmed the conviction of
the accused for murder although the body of the victim was not found or recovered. In said
case, the High Court ruled that in case of murder or homicide, it is not necessary to recover
the body of the victim or show where it can be found. It is enough that the death and the
criminal agency causing death is proven. The Court recognized that there are cases where
the death and intervention of the criminal agency that caused it may be presumed or
established by circumstantial evidence (Recall Korean national case allegedly killed inside
Camp Crame).

Facts: Conrado testified that on xxx, at around xxx in the morning, he was on his way
to Sitio Bungabungan in barangay Amguhan to attend to the pasture of his carabao. At a
distance of thirty (30) meters, he saw his neighbor, Anatalio, stopped in his tracks and taken
captive by accused Abundio Roluna. Roluna was then accompanied by seven (7) other
persons. viz: Didoc, Federico, Bienvenido, Teodulfo, Carlos, Mamerto and Paterno. Accused
Roluna was armed with an armalite while his companions were carrying short firearms. Using
an abaca strip, he saw Carlos tie up the hands of victim Moronia at the back. Frightened, he
did not shout for help and proceeded on his way. With the exception of his wife, he did not
inform anyone about what he saw that fateful day.
Buenaventura corroborated in substance the testimony of Sombilon. He testified that
on said day, at around nine o'clock in the morning, he came from his farm in barangay
Monterico, Baybay and was on his way home to barangay Amguhan. At a distance of about
twenty-five (25) meters, he saw Moronia walking along a human trail in barangay Amguhan,
with his hands tied by a rope behind his back. Moronia was followed by accused Roluna,
Carlos Daguing and five (5) other persons whom he did not recognize. Accused Roluna was
carrying an armalite while Carlos Daguing was armed with a pistol. Frightened, Nogalada
immediately left the place. Roluna was charged of Kidnapping with Murder.
Ruling:
The ruling in the Sasota case cannot be applied to the case at bench.
In the Sasota case, the prosecution witnesses saw the four (4) armed accused forcibly
take the victim from his house to a lake, beating him up all the way to the boat. While sailing,
the accused continued ill-treating the victim until the latter died. The body of the victim was
never found.
In this case, however, the prosecution witnesses testified that they merely saw one of
the accused, Carlos Daguing, tie up the hands of Moronia. He was then taken in the direction
of barangay Monterico and was never seen or heard from since. At no point during the trial
was it ever established that any of the eight (8) accused beat up Moronia or in any way laid a
violent hand on him. Nogalada even testified that he did not hear any shot fired by any of the
eight (8) armed accused so as to warrant a reasonable conclusion that Moronia was killed by
accused-appellant or any of his co-conspirators. Indeed, even the possible motive of
accused-appellant and his group for abducting Moronia was not definitively established. To
be sure, the circumstances proved are insufficient to produce a conviction beyond
reasonable doubt for the serious crime of kidnapping with murder.
There being no evidence to the contrary, the disputable presumption under Section 5
(x) (3), Rule 131 of the Rules of Court would apply, but only insofar as to establish the
presumptive death of Moronia. Whether accused-appellant is responsible for the death of
Moronia is a different matter. The Rules did not authorize that from this disputable
presumption of death, it should be further presumed that the person with whom the
absentee was last seen shall be responsible for the subsequent unexplained
absence/disappearance of the latter. The conviction of accused-appellant for the serious
crime of kidnapping with murder cannot be allowed to rest on the vague and nebulous facts
established by the prosecution. As discussed earlier, the evidence presented by the
prosecution surrounding the events of that fateful day are grossly insufficient to establish the
alleged liability of accused-appellant for the death of Moronia.
It is a well-entrenched principle in criminal law that an accused is presumed innocent
until proven otherwise. No less than proof beyond reasonable doubt is required to convict
him. On the whole, the evidence adduced by the prosecution would not prove beyond a
shadow of a doubt that accused-appellant should be convicted for the serious crime of
kidnapping with murder.
Since none of the circumstances mentioned in Article 267 of the Revised Penal Code
(kidnapping with serious illegal detention) was proved and only the fact of kidnapping of
Anatalio Moronia was established, we find that the crime committed is slight illegal
detention under Article 268 of the Revised Penal Code (People vs. Roluna, 1994).

Evidence
Illegal possession of firearms
Corpus delicti:
The corpus delicti in the crime of illegal possession of firearms is the accused's lack of
license or permit to possess or carry the firearm, as possession itself is not prohibited by law.
 To establish the corpus delicti, the prosecution has the burden of proving that:
(a) the firearm exists; and
(b) the accused who owned or possessed it does not have the corresponding license or
permit to possess or carry the same (Sayco vs. People, 2008).
`
So, if the prosecution has able to prove that: (a) the police officers positively identified
the accused as the one holding a .45 caliber pistol with Serial Number 4517488 with
magazine and live ammunitions, which was seized from him and later on, marked, identified,
offered, and properly admitted as evidence at the trial; and ( b) the Certification dated
August 10, 2011 issued by the Firearms and Explosives Office of the Philippine National
Police which declared that accused "is not a licensed/registered firearm holder of any kind
and calibre, specifically Caliber .45 Pistol, make (unknown) with Serial Number 4517 488 per
verification from the records of this office as of this date, the offense charge for illegal is
successfully established.
Paraffin test is inconsequential since it is not indicative of his guilt or innocence of the
crime charged.
Paraffin test is not an element of the offense (Peralta vs. People, G.R. No. 221991).

Because of the election period brought about by the scheduled barangay election,
the COMELEC announced and implemented the election gun ban. Pedro was arrested and
pending prosecution for violation of the election gun ban. One week after, the President
signed into law the bill passed by Congress suspending the barangay election to next year.
Can Pedro still be convicted even though the election is already declared suspended?

No. The penal laws should be applied mechanically. The application of the law must be
consistent with the purpose of and reason for the law. Ratione cessat lex, et cessat
lex. (When the reason for the law ceases, the law ceases.) This is true, because there is no
more barangay election this year by reason of the recent law suspending the barangay
election. It is not the letter alone but the spirit of the law also that gives it life. To convict the
accused for violation of Comelec Gun Ban is no longer tenable nor justified by law or
equitable consideration.

The rule is that: to call accused verdict of conviction, the prosecution must rely on the
strength of its own evidence, not on the weakness of the defense's evidence.
In what instance, if any, where the accused must rely on the strength of his own
evidence and not on the weakness of the Prosecution's evidence?
Ans. If the accused is invoking self-defense. This is because his admission of the killing
required him to rely on the strength of his own evidence, not on the weakness of the
Prosecution's evidence, which, even if it were weak, could not be disbelieved in view of his
admission (People vs. Tanduyan, G. R. No. 108784, September 13, 1994, 236 SCRA 433, 439;
People v. Quino, G.R. No. I05580, May 17, 1994, 232 SCRA 400, 403; People vs. Molina, G.R.
No. 59436, August 28, 1992, 213 SCRA 52, 64; People vs. Dori co, G .R. No. L-31568,
November 29, I 973, 54 SCRA 172, 184).
 If self-defense in invoked, the accused had to prove that the following elements of
self-defense were present, namely:
(1) the victim committed unlawful aggression amounting to actual or imminent threat
to the life and limb of the person claiming self-defense;
(2) there was reasonable necessity in the means employed to prevent or repel the
unlawful aggression; and
(3) there was lack of sufficient provocation on the part of the person claiming self-
defense or at least any provocation executed by the person claiming self-defense was not
the proximate and immediate cause of the victim's aggression (Razon vs. People, 2007;
Garong vs. People, 2006.

The unlawful aggression to pose a real peril on the life or personal safety of the person
defending himself, and its indispensability as an element of self-defense in the following
manner: Unlawful aggression on the part of the victim is the primordial element of the
justifying circumstance of self-defense. Without unlawful aggression, there can be no
justified killing in defense of oneself. The test for the presence of unlawful aggression under
the circumstances is whether the aggression from the victim put in real peril the life or
personal safety of the person defending himself; the peril must not be an imagined or
imaginary threat. Accordingly, the accused must establish the concurrence of three elements
of unlawful aggression, namely: (a) there must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least, imminent; and (c) the attack or assault must
be unlawful. Unlawful aggression is of two kinds: (a) actual or material unlawful aggression;
and ( b) imminent unlawful aggression. Actual or material unlawful aggression means an
attack with physical force or with a weapon, an offensive act that positively determines the
intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack
that is impending or at the point of happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must be offensive and positively strong (like
aiming a revolver at another with intent to shoot or opening a knife and making a motion as
if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the
victim, such as pressing his right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to throw a pot (People vs. Nuga,
2011).

TRAFFICKING IN PERSONS (RA 9208)

Elements
The elements to prove:
(1) the act of recruitment, transportation, transfer or harboring, or receipts of persons
with or without the victim's consent or knowledge, within or across national borders;
(2) the means used which include "threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or the giving or receiving of payments or benefits to achieve the
consent of a person having control over another; and
 (3) the purpose of trafficking is exploitation which includes "exploitation or the
prostitution of others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs" (People vs. Casio, 740 Phil. 458).

Conviction vs. Acquittal

Accused verdict of conviction
The rule is that: to call accused verdict of conviction, the prosecution must rely on the
strength of its own evidence, not on the weakness of the defense's evidence.
In what instance, if any, where the accused must rely on the strength of his own
evidence and not on the weakness of the Prosecution's evidence?
Ans. If the accused is invoking self-defense. This is because his admission of the killing
required him to rely on the strength of his own evidence, not on the weakness of the
Prosecution's evidence, which, even if it were weak, could not be disbelieved in view of his
admission (People vs. Tanduyan, 1994).

Special Rules

Writ of Amparo
The protective writ of amparo is a judicial remedy to expeditiously provide relief to
violations of a person's constitutional right to life, liberty, and security, and more specifically,
to address the problem of extralegal killings and enforced disappearances or threats thereof.

Enforced disappearance:
"Enforced or involuntary disappearance of persons" means the arrest, detention, or
abduction of persons by, or with the authorization, support or acquiescence of, a State or a
political organization followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time (RA 9851, Section
3[g].
Extralegal killings vs. enforced disappearance:
Are killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings. On the other hand, enforced disappearance has been defined by the
Court as the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization, support
or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law (Mamba vs. Bueno, G.R. No. 191416).

Elements constituting enforced disappearance:

(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of, the State
or a political organization; ( c) that it be followed by the State or political organization's
refusal to acknowledge or give information on the fate or whereabouts of the person subject
of the amparo petition; and, ( d) that the intention for such refusal is to remove subject
person from the protection of the law for a prolonged period of time (Navia vs. Pardico,
2012).
For the issuance of the writ, it is not sufficient that a person's life is endangered. It is
even not sufficient to allege and prove that a person has disappeared. It has to be shown by
the required quantum of proof that the disappearance was carried out by, or with the
authorization, support or acquiescence of the government or a political organization, and
that there is a refusal to acknowledge the same or to give information on the fate or
whereabouts of the missing persons (RA 9851, Section 3[g].

Petitioners relationship to the subject must be alleged.

The petition may be filed by the aggrieved party or by any qualified person or entity in
the following order: (a) Any member of the immediate family, namely: the spouse, children
and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization,
association or institution, if there is no known member of the immediate family or relative of
the aggrieved party.
The order of priority on who can file the petition should be strictly followed. Failure to
allege filial relationship would be a ground for the dismissal of the petition on ground of
locus standi or legal standing to file the petition.
 College of Law, Manila

LEGAL ETHICS
2017BAR EXAMINATION TIPS
By:

Judge Eleuterio L. Bathan

LEGAL ETHICS

Citizenship to admission to the Bar and in Practice of Law:

Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules of Court provides:

Requirements for all applicants for admission to the bar. Every applicant for admission as a
member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good
moral character, and a resident of the Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character, and that no charges against him, involving moral
turpitude, have been filed or are pending in any court in the Philippines.
Section 1, Rule 138 of the Rules of Court provides:

Who may practice law. Any person heretofore duly admitted as a member of the bar, or
thereafter admitted as such in accordance with the provisions of this Rule, and who is in good and
regular standing, is entitled to practice law.
Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the
statutory requirements and who is in good and regular standing is entitled to practice law.

The practice of law is a privilege burdened with conditions. It is so delicately affected

with public interest that it is both a power and a duty of the State (through the High Court)
to control and regulate it in order to protect and promote the public welfare (Petition of
Benjamin M. Dacanay for Leave to Resume Practice of Law, B.M. No. 1678, December 17,
2007).
Adherence to rigid standards of mental fitness, maintenance of the highest degree of
morality, faithful observance of the rules of the legal profession, compliance with the
mandatory continuing legal education requirement and payment of membership fees to the
Integrated Bar of the Philippines (IBP) are the conditions required for membership in good
standing in the bar and for enjoying the privilege to practice law. Any breach by a lawyer of
any of these conditions makes him unworthy of the trust and confidence which the courts
and clients repose in him for the continued exercise of his professional privilege (Petition of
Benjamin M. Dacanay for Leave to Resume Practice of Law, B.M. No. 1678, December 17,
2007).

Admission to the bar involves various phases such as furnishing satisfactory proof of
educational, moral and other qualifications; passing the bar examinations; taking the
lawyer's oath and signing the roll of attorneys and receiving from the clerk of court of this
Court a certificate of the license to practice (Petition of Benjamin M. Dacanay for Leave to
Resume Practice of Law, B.M. No. 1678, December 17, 2007).
The second requisite for the practice of law membership in good standing is a
continuing requirement. This means continued membership and, concomitantly, payment of
annual membership dues in the IBP; payment of the annual professional tax; compliance
with the mandatory continuing legal education requirement; faithful observance of the rules
and ethics of the legal profession and being continually subject to judicial disciplinary control
(Petition of Benjamin M. Dacanay for Leave to Resume Practice of Law, B.M. No. 1678,
December 17, 2007).

Case: Benjamin M. Dacanay who was admitted to the Philippine Bar in 1960 and
practiced law until he migrated to Canada in 1998 for medical reason. He subsequently
applied for Canadian citizenship to avail of Canada's free medical aid program. His
application was approved and he became a Canadian citizen in May 2004. In 2006, Dacanay
reacquired his Philippine citizenship pursuant to RA 9225 (Citizenship Retention and Re-
Acquisition Act of 2003). On that day, he took his oath of allegiance as a Filipino citizen
before the Philippine Consulate General in Toronto, Canada, and thereafter, he returned to
the Philippines and now intends to resume his law practice. He now petitioned the High
Court for leave to resume the practice of law.
May a lawyer who has lost his Filipino citizenship still practice law in the Philippines?
No.
The Constitution provides that the practice of all professions in the Philippines shall be
limited to Filipino citizens save in cases prescribed by law. Since Filipino citizenship is a
requirement for admission to the bar, loss thereof terminates membership in the Philippine
bar and, consequently, the privilege to engage in the practice of law. In other words, the loss
of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The
practice of law is a privilege denied to foreigners.
The exception is when Filipino citizenship is lost by reason of naturalization as a citizen
of another country but subsequently reacquired pursuant to RA 9225. This is because all
Philippine citizens who become citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of RA 9225 (Petition of Benjamin M.
Dacanay for Leave to Resume Practice of Law, B.M. No. 1678, December 17, 2007).
 Has Dacanay lost his membership in the Philippine bar when he gave up his
Philippine citizenship in May 2004?
No. A Filipino lawyer who becomes a citizen of another country is deemed never to
have lost his Philippine citizenship if he reacquires it in accordance with RA 9225. Although
he is also deemed never to have terminated his membership in the Philippine bar, no
automatic right to resume law practice accrues.
Under RA 9225, if a person intends to practice the legal profession in the Philippines
and he reacquires his Filipino citizenship pursuant to its provisions (he) shall apply with the
proper authority for a license or permit to engage in such practice. Stated otherwise, before
a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice,
he must first secure from the High Court the authority to do so, conditioned on:
the updating and payment in full of the annual membership dues in the IBP;
the payment of professional tax;
the completion of at least 36 credit hours of mandatory continuing legal education;
this is specially significant to refresh the applicant/petitioner's knowledge of
Philippine laws and update him of legal developments and
the retaking of the lawyer's oath which will not only remind him of his duties and
responsibilities as a lawyer and as an officer of the Court, but also renew his pledge
to maintain allegiance to the Republic of the Philippines.
Compliance with these conditions will restore his good standing as a member of the
Philippine bar (Petition of Benjamin M. Dacanay for Leave to Resume Practice of Law, B.M.
No. 1678, December 17, 2007).

What is the purpose of requiring the completion of at least 36 credit hours of

mandatory continuing legal education?
Ans. This is specially significant to refresh the applicant/petitioner's knowledge of
Philippine laws and update him of legal developments (Petition of Benjamin M. Dacanay for
Leave to Resume Practice of Law, B.M. No. 1678, December 17, 2007).

What is the purpose of requiring the retaking of the lawyer's oath?

Ans. Not only remind him of his duties and responsibilities as a lawyer and as an
officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the
Philippines (Petition of Benjamin M. Dacanay for Leave to Resume Practice of Law, B.M.
No. 1678, December 17, 2007).

The negligence and mistakes of counsel are binding on client (Sapad vs. CA, 2000).
A counsel, once retained, holds the implied authority to do all acts necessary or, at
least, incidental to the prosecution and management of the suit in behalf of his client, such
that any act or omission by counsel within the scope of the authority is regarded, in the eyes
of the law, as the act or omission of the client himself (Bejarasco, Jr. vs. People, 2011).