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CIVIL PROCEDURE

I. JURISDICTION matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Court’s docket.
A. CLASSES OF JURISDICTION
The SC will not entertain direct resort to it unless the redress desired
1. General vs. Special cannot be obtained in the appropriate courts, and exceptional and
compelling circumstances justify the availment of the extraordinary
General Jurisdiction – the power to adjudicate all controversies except remedy of writ of certiorari, calling for the exercise of its primary
those expressly withheld from the plenary powers of the court; jurisdiction. (Liga ng mga Barangay vs. City of Manila)

Special Jurisdiction – restricts the court’s jurisdiction only to particular However, when cases brought before the appellate courts do not involve
cases and subject to such limitations as may be provided by the governing factual but legal questions, a strict application of the rule of hierarchy of
law. courts is not necessary. (Agan vs. PIATCO)

E.g., Drugs Court; Intellectual Property Court; Commercial Court; Moreover, when the rights of the parties have been extremely prejudiced
Environmental Court. because of the delay in the ruling of the court and damage has already
set in, then the SC can take action and rule on the matter.
2. Original vs. Appellate
2. Doctrine of Transcendental Importance (Liga ng mga Barangay vs. City
Original Jurisdiction - the power of the court to take judicial cognizance of of Manila);
a case instituted for judicial action for the first time under conditions provided 3. Supreme Court is not a trier of facts.
by law.
Exception: in the interest of substantial justice.
Appellate Jurisdiction - the authority of a court higher in rank to reexamine
the final order of judgment of a lower court which tried the case now elevated Administrative Proceedings against public school teachers: the CSC,
for judicial review. the Department of Education (DepEd) and the Board of Professional Teachers-
Professional Regulatory Commission (PRC) have concurrent jurisdiction over
3. Exclusive vs. Concurrent administrative cases against public school teachers. (Pat-og vs. CSC)

Exclusive Jurisdiction - the power to adjudicate a case or proceeding to 4. Other Classes


the exclusion of all other courts at that stage.
Delegated Jurisdiction - under BP 129, the grant of authority to inferior
e.g. Declaratory Relief and Ejectment cases – RTC; Ejectment Cases – MTC; courts to hear and determine cadastral and land registration cases under
Annulment of Marriage – Family Court. where the assessed value does not exceed P100,000 and there are no
oppositions. (See Sec 34)
Concurrent Jurisdiction (Concurrent or Confluent) - the power
conferred upon different courts, whether of the same or different ranks, to Appeal from the exercise of a lower court of delegated jurisdiction is with the
take cognizance of the same case in the same or different judicial tribunals. Court of Appeals not with the RTC.

Where concurrent jurisdiction exists in several tribunals, the body that first Primary Jurisdiction – authority of administrative bodies to take cognizance
takes cognizance of the complaint shall exercise jurisdiction to the exclusion certain cases before it can be brought before regular courts.
of the others (see Pat-og vs. Civil Service Commission)
Special Jurisdiction - under BP 129, the power of inferior courts to hear
Concurrent Jurisdiction applies only to original and not appellate. In appeals, and decide petitions for a writ of habeas corpus or applications for bail in the
there is only one court that has jurisdiction. absence of RTC judges in the trial or city

The RTC, CA and SC have concurrent jurisdiction over: petitions for certiorari, Territorial Jurisdiction - refers to the geographical area within which its
mandamus, quo warranto, writ of amparo and writ of habeas data, among powers can be exercised.
others, subject to the principle of the Hierarchy of Courts.
Residual Jurisdiction – jurisdiction of the trial courts that remains even
Important Principles of Jurisdiction relative to concurrent after losing jurisdiction over the case because of appeal. A trial court loses
jurisdiction: complete jurisdiction over a case when an appeal is perfected and the period
1. Hierarchy of Courts to appeal has expired.

The concurrence of jurisdiction in the RTC, CA and SC, is not, however, Distinguished from Residual Prerogatives – which is the authority of the
to be taken as according to parties seeking any of the writs an absolute, appellate court to dismissal case motu propio. (see Katon vs. Palanca) When?
unrestrained freedom of choice of the court to which application therefor a. Rule 17, Sec. 3:
will be directed. There is after all a hierarchy of courts. That hierarchy is i. Failure of the plaintiff to appear on the date of the presentation of
determinative of the venue of appeals, and also serves as a general his evidence in chief for a unreasonable period of time;
determinant of the appropriate forum for petitions for the extraordinary ii. Failure of the plaintiff to prosecute his action for an unreasonable
writs. A becoming regard of that judicial hierarchy most certainly length of time;
indicates that petitions for the issuance of extraordinary writs against iii. Failure of the plaintiff to comply with an order of the court.
first level ("inferior") courts should be filed with the Regional Trial Court,
and those against the latter, with the Court of Appeals. A direct b. Rule 9, Sec. 1:
invocation of the Supreme Court’s original jurisdiction to issue these writs i. Lack of jurisdiction
should be allowed only when there are special and important reasons ii. Res judicata
therefor, clearly and specifically set out in the petition. This is [an] iii. Litis pendentia;
established policy. It is a policy necessary to prevent inordinate demands iv. Prescription.
upon the Court’s time and attention which are better devoted to those c. In cases governed by the Rules on Summary Procedure.

Cesar Nickolai F. Soriano Jr.


1 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Jurisdiction vs. Venue BAR QUESTION: if the pleading alleged that the claim is more than
P400,000, but in the course of the trial, it was proven that the claim is only
JURISDICTION VENUE P200,000. Should the RTC dismiss the case for lack of jurisdiction?
The authority to hear and The place where the case is to be
determine a case. heard. ANSWER: No. Jurisdiction is determined by the allegations in the pleadings
Matter of substantive law. Matter of procedural law. which guide the judge whether a particular case falls within his jurisdiction as
Establishes a relation between the Establishes a relation between the conferred by law.
court and the subject matter. plaintiff and defendant or petitioner
and respondent. Criminal Case: The jurisdiction of the court over criminal cases is determined
Fixed by law and cannot be May be conferred by the act or by the allegations in the Information or the Complaint and the statute in effect
conferred by the parties. agreement of the parties. at the time of the commencement of the action, unless such statute provides
for a retroactive application thereof. The jurisdictional requirements must be
Venue is jurisdictional in criminal cases. Territories are essential in alleged in the Information. Such jurisdiction of the court acquired at the
determining the venue and court which has jurisdiction over the case, unlike inception of the case continues until the case is terminated. (Escobal vs.
in civil cases, where territorial jurisdiction of the courts are essential only for Garchitorena)
venue purposes.
C. JURISDICTION OF REGULAR COURTS
B. REQUISITES FOR THE EXERCISE OF JURISDICTION
CLASSIFICATION OF COURTS:
1. Jurisdiction over the plaintiff or petitioner - acquired by the filing
of the complaint, petition or initiatory pleading before the court by the Kind Of Court Description
plaintiff or petitioner. Courts of those competent to decide their own jurisdiction and
General take cognizance of all kinds of cases
2. Jurisdiction over the defendant or respondent - acquired by the Jurisdiction
voluntary appearance or submission by the defendant or respondent to Example: RTC
the court or by coercive process issued by the court to him, generally by Courts of those which have no power to decide their own
service of summons. Limited jurisdiction and can only try cases permitted by
Jurisdiction statute.
In an action in personam, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the case. (Biaco vs. Example: MTC, Juvenile and Domestic Relations Court
Philippine Countryside Rural Bank) (under BP 129, JDRC has been integrated into the RTC
to form a branch thereof.
3. Jurisdiction over the subject matter - conferred by law; unlike Courts of those which, under the law, actions may originally be
jurisdiction over the parties, CANNOT be conferred on the court by the Original commenced
voluntary act or agreement of the parties. Jurisdiction
Courts of those which have the power to review on appeal the
4. Jurisdiction over the issues of the case - determined and conferred Appellate decisions or orders of a lower court
by the pleadings or by agreement during pre-trial or by the parties’ Jurisdiction
implied consent such as when they fail to object to the admissibility in Superior Courts those which have the power of review or supervision
evidence. over another and lower court
Inferior Courts those which, in relation to another court are lower in
5. Jurisdiction over the res (property/ thing subject of litigation) - rank and subject to review and supervision by another.
acquired by the actual or constructive seizure by the court of the thing
in question, thus placing it in custodial legis or by provision of law which * now called "lower courts" under the 1987
recognizes in the court the power to deal with the property or subject Constitution.
matter within in its territorial jurisdiction. Courts of those whose proceedings are enrolled and which are
Record bound to keep a written record of all trials and
The court need not acquire jurisdiction over the res as long as it acquires proceedings handled by them.
jurisdiction over the person of the defendant. However, if it cannot
acquire jurisdiction over the person of the defendant, it may acquire * all inferior courts are now courts of record (prior to
jurisdiction over the res to continue with the proceedings. RA 6031, they were courts not of record).
Courts Not of those which are not required to keep a written record
Decision is limited to the value of the property if jurisdiction is Record or transcript of proceedings held therein
not acquired over the person of the defendant: while the trial court Constitutional those which owe their creation and existence to the
acquired jurisdiction over the res, its jurisdiction is limited to a rendition Courts Constitution hence cannot be legislated out of
of judgment on the res. It cannot extend its jurisdiction beyond the res existence or deprived by law of their jurisdiction and
and issue a judgment enforcing petitioner’s personal liability. In doing so powers which were unqualifiedly vested to them by the
without first having acquired jurisdiction over the person of petitioner, Constitution.
as it did, the trial court violated her constitutional right to due process,
warranting the annulment of the judgment rendered in the case. (Biaco SC and SB only (BUT the better view is that the SB is
vs. Philippine Countryside Rural Bank) ONLY a constitutional-mandated court since its
creation was by statutory enactment ALTHOUGH its
Judicial foreclosure proceedings is quasi in rem: the judicial existence is provided for by the Constitution.
foreclosure proceeding instituted by respondent PCRB undoubtedly Statutory those which were created, organized and with
vested the trial court with jurisdiction over the res. A judicial foreclosure Courts jurisdiction exclusively determined by law.
proceeding is an action quasi in rem. As such, jurisdiction over the person
of petitioner is not required, it being sufficient that the trial court is All courts except SC and Sandiganbayan are considered
vested with jurisdiction over the subject matter. (Biaco vs. Philippine statutory courts.
Countryside Rural Bank)
1. SUPREME COURT

Cesar Nickolai F. Soriano Jr.


2 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari,
1987 Constitution, Art. VIII, Section 5. The Supreme Court shall have habeas corpus, and quo warranto, and auxiliary writs or processes,
the following powers: whether or not in aid of its appellate jurisdiction;
2. Exclusive original jurisdiction over actions for annulment of judgments
Exercise original jurisdiction over cases affecting ambassadors, other of Regional Trial Courts; and
public ministers and consuls, and over petitions for certiorari, prohibition, 3. Exclusive appellate jurisdiction over all final judgments, resolutions,
mandamus, quo warranto, and habeas corpus. orders or awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commission, including the Securities and
Review, revise, reverse, modify, or affirm on appeal or certiorari, as the Exchange Commission, the Social Security Commission, the Employees
law or the Rules of Court may provide, final judgments and orders of lower Compensation Commission and the Civil Service Commission, Except those
courts in: falling within the appellate jurisdiction of the Supreme Court in accordance
with the Constitution, the Labor Code of the Philippines under Presidential
All cases in which the constitutionality or validity of any treaty, international Decree No. 442, as amended, the provisions of this Act, and of
or executive agreement, law, presidential decree, proclamation, order, subparagraph (1) of the third paragraph and subparagraph 4 of the fourth
instruction, ordinance, or regulation is in question. paragraph of Section 17 of the Judiciary Act of 1948.
The court of Appeals shall have the power to try cases and conduct
All cases involving the legality of any tax, impost, assessment, or toll, or hearings, receive evidence and perform any and all acts necessary to
any penalty imposed in relation thereto. resolve factual issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new trials or Appeals
All cases in which the jurisdiction of any lower court is in issue. must be continuous and must be completed within three (3) months,
unless extended by the Chief Justice. (as amended by R.A. No. 7902.)
All criminal cases in which the penalty imposed is reclusion perpetua or
higher. 3. REGIONAL TRIAL COURT

All cases in which only an error or question of law is involved. BP Blg 129, Section 19. Jurisdiction in civil cases. – Regional Trial
Courts shall exercise exclusive original jurisdiction:
Assign temporarily judges of lower courts to other stations as public
interest may require. Such temporary assignment shall not exceed six (1) In all civil actions in which the subject of the litigation is incapable of
months without the consent of the judge concerned. pecuniary estimation;
(2) In all civil actions which involve the title to, or possession of, real
Order a change of venue or place of trial to avoid a miscarriage of justice. property, or any interest therein, where the assessed value of the property
involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions
Promulgate rules concerning the protection and enforcement of in Metro Manila, where such the value exceeds Fifty thousand pesos
constitutional rights, pleading, practice, and procedure in all courts, the (50,000.00) except actions for forcible entry into and unlawful detainer of
admission to the practice of law, the integrated bar, and legal assistance lands or buildings, original jurisdiction over which is conferred upon
to the under-privileged. Such rules shall provide a simplified and Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
inexpensive procedure for the speedy disposition of cases, shall be uniform Courts;
for all courts of the same grade, and shall not diminish, increase, or modify (3) In all actions in admiralty and maritime jurisdiction where he demand
substantive rights. Rules of procedure of special courts and quasi-judicial or claim exceeds One hundred thousand pesos (P100,000.00) or , in Metro
bodies shall remain effective unless disapproved by the Supreme Court. Manila, where such demand or claim exceeds Two hundred thousand
pesos (200,000.00);
Appoint all officials and employees of the Judiciary in accordance with the (4) In all matters of probate, both testate and intestate, where the gross
Civil Service Law. value of the estate exceeds One hundred thousand pesos (P100,000.00)
or, in probate matters in Metro Manila, where such gross value exceeds
NOTE: Only appeals from the following are allowed to done directly to the Two hundred thousand pesos (200,000.00);
Supreme Court: (5) In all actions involving the contract of marriage and marital relations;
1. Court of Appeals; (6) In all cases not within the exclusive jurisdiction of any court, tribunal,
2. Court of Tax Appeals (en banc); person or body exercising jurisdiction or any court, tribunal, person or body
3. Sandiganbayan; exercising judicial or quasi-judicial functions;
4. COMELEC; (7) In all civil actions and special proceedings falling within the exclusive
5. COA; original jurisdiction of a Juvenile and Domestic Relations Court and of the
6. Shariah Appellate Courts. Courts of Agrarian Relations as now provided by law; and
(8) In all other cases in which the demand, exclusive of interest, damages
All other bodies, tribunals or courts may file an appeal with the Court of of whatever kind, attorney's fees, litigation expenses, and costs or the
Appeals. value of the property in controversy exceeds One hundred thousand pesos
(100,000.00) or, in such other abovementioned items exceeds Two
Actions to discipline judges is different from a criminal case filed hundred thousand pesos (200,000.00). (as amended by R.A. No. 7691*)
against the same judge: A criminal case against an attorney or judge is
distinct and separate from an administrative case against him. The dismissal Title to, or possession of, real property, or any interest therein: the
of the criminal case does not warrant the dismissal of an administrative case basis is the assessed value, for determining whether which court has
arising from the same set of facts. The quantum of evidence that is required jurisdiction. EXCEPT: quieting of title and removal of cloud under Rule 63,
in the latter is only preponderance of evidence, and not proof beyond which falls squarely within the jurisdiction of the RTC. (Sabitsana vs. Murtegui)
reasonable doubt which is required in criminal cases. (Office of the Court
Administrator vs. Sardido) Amended Amounts: no longer P100,000 and P200,000. Now, exceeding
P300,000 outside Metro Manila; P400,000 in Metro Manila. Applicable to the
2. COURT OF APPEALS following cases:
1. Claims for money;
BP Blg. 129, Section 9. Jurisdiction. – The Court of Appeals shall 2. Actions purely for damages;
Exercise: 3. Estate proceedings;
4. Cases in admiralty and maritime jurisdictions.

Cesar Nickolai F. Soriano Jr.


3 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Incapable of Pecuniary Estimation: the claim or the issue cannot be
reduced into an amount. Examples: The sentence, however, shall be suspended without need of application
1. Annulment or rescission of contract; pursuant to Presidential Decree No. 603, otherwise known as the "Child
2. Specific performance; and Youth Welfare Code";
3. Cancellation of title – the ultimate relief is the cancellation of the title,
the subject is only the title itself; this is different from actions involving b) Petitions for guardianship, custody of children, habeas corpus in relation
title to, or possession of, real property, the jurisdiction of which may be to the latter;
determined by the assessed value;
4. Cancellation of mortgage. c) Petitions for adoption of children and the revocation thereof;

Ruby Shelter case: initially assessed by the clerk of court as incapable of d) Complaints for annulment of marriage, declaration of nullity of marriage
pecuniary estimation. Later on, it was determined that the ultimate result of and those relating to marital status and property relations of husband and
the case is that title would pass on, not merely for recovery of title wife or those living together under different status and agreements, and
(document), but the title to the property itself (ownership). The RTC then petitions for dissolution of conjugal partnership of gains;
assessed filing fees. CA sustained the RTC. The Supreme Court sustained RTC
and CA. the petitioner’s complaint involved not only the annulment of the e) Petitions for support and/or acknowledgment;
deed of sale but also the recovery of the real properties identified in the
documents. In other words, the objective of the petitioner in filing the case f) Summary judicial proceedings brought under the provisions of Executive
were to cancel the deed and ultimately to recover possession. Therefore, the Order No. 209, otherwise known as the "Family Code of the Philippines";
value of the property determines the filing fees.
g) Petitions for declaration of status of children as abandoned, dependent
Section 20. Jurisdiction in criminal cases. – Regional Trial Courts shall or neglected children, petitions for voluntary or involuntary commitment
exercise exclusive original jurisdiction in all criminal cases not within the of children; the suspension, termination, or restoration of parental
exclusive jurisdiction of any court, tribunal or body, except those now authority and other cases cognizable under Presidential Decree No. 603,
falling under the exclusive and concurrent jurisdiction of the Executive Order No. 56, (Series of 1986), and other related laws;
Sandiganbayan which shall hereafter be exclusively taken cognizance of
by the latter. h) Petitions for the constitution of the family home;

Section 21. Original jurisdiction in other cases. – Regional Trial i) Cases against minors cognizable under the Dangerous Drugs Act, as
Courts shall exercise original jurisdiction: amended;
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which may be enforced in any part j) Violations of Republic Act No. 7610, otherwise known as the "Special
of their respective regions; and Protection of Children Against Child Abuse, Exploitation and Discrimination
(2) In actions affecting ambassadors and other public ministers and Act," as amended by Republic Act No. 7658; and
consuls.
k) Cases of domestic violence against:
Section 22. Appellate jurisdiction. – Regional Trial Courts shall
exercise appellate jurisdiction over all cases decided by Metropolitan Trial 1) Women - which are acts of gender based violence that results, or are
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their likely to result in physical, sexual or psychological harm or suffering to
respective territorial jurisdictions. Such cases shall be decided on the basis women; and other forms of physical abuse such as battering or threats
of the entire record of the proceedings had in the court of origin and such and coercion which violate a woman's personhood, integrity and freedom
memoranda and/or briefs as may be submitted by the parties or required movement; and
by the Regional Trial Courts. The decision of the Regional Trial Courts in 2) Children - which include the commission of all forms of abuse, neglect,
such cases shall be appealable by petition for review to the Court of cruelty, exploitation, violence, and discrimination and all other conditions
Appeals which may give it due course only when the petition shows prima prejudicial to their development.
facie that the lower court has committed an error of fact or law that will
warrant a reversal or modification of the decision or judgment sought to If an act constitutes a criminal offense, the accused or batterer shall be
be reviewed. subject to criminal proceedings and the corresponding penalties.

Section 23. Special jurisdiction to try special cases. – The Supreme If any question involving any of the above matters should arise as an
Court may designate certain branches of the Regional Trial Courts to incident in any case pending in the regular courts, said incident shall be
handle exclusively criminal cases, juvenile and domestic relations cases, determined in that court.
agrarian cases, urban land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies, and/or such other special NOTE: Family Courts are creations of law, as distinguished from Special
cases as the Supreme Court may determine in the interest of a speedy and Commercial Courts and Intellectual Property Courts which are created by
efficient administration of justice. Supreme Court issuances.

a. FAMILY COURTS b. INTELLECTUAL PROPERTY COURTS

RA No. 8369 dated Oct. 28, 1997 Supreme Court Administrative Order No. 113-95: Designation of
Special Courts for Intellectual Property Rights
Section 5. Jurisdiction of Family Courts. - The Family Courts shall
have exclusive original jurisdiction to hear and decide the following cases: In the interest of an efficient administration of justice and to ensure speedy
disposition of cases involving violation of Intellectual Property Rights, the
a) Criminal cases where one or more of the accused is below eighteen (18) Branches of the Regional Trial Courts, Metropolitan Trial Courts and
years of age but not less than nine (9) years of age but not less than nine Municipal Trial Courts in Cities, presently presided over by their respective
(9) years of age or where one or more of the victims is a minor at the time trial judges as herein below indicated, are hereby specially designated to
of the commission of the offense: Provided, That if the minor is found try and decide cases for violations of Intellectual Property Rights such as,
guilty, the court shall promulgate sentence and ascertain any civil liability but riot limited to,:
which the accused may have incurred. 1. Violations of Art. 188 of the Revised Penal Code (Substituting and
Altering Trademarks, Trade Names, or Service Marks),
Cesar Nickolai F. Soriano Jr.
4 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
2. Art. 189 of the Revised Penal Code (Unfair Competition, Fraudulent 4. Ejectment cases: forcible entry and unlawful detainer governed by Rule
Registration of Trade Name, Trademark or Service Mark, Fraudulent 70.
Designation of Origin, and False Description),
3. Presidential Decree No. 49 (Protection of Intellectual Property Rights), Section 34. Delegated jurisdiction in cadastral and land
4. Presidential Decree No. 87 (An Act Creating-the Videogram Regulatory registration cases. – Metropolitan Trial Courts, Municipal Trial Courts,
Board), and Municipal Circuit Trial Courts may be assigned by the Supreme Court
5. Republic Act No. 165 "as amended (The Patent Law), and to hear and determine cadastral or land registration cases covering lots
6. Republic Act 166 as amended' (The Trademark Law) committed within where there is no controversy or opposition, or contested lots the where
their respective territorial areas: the value of which does not exceed One hundred thousand pesos
(P100,000.00), such value to be ascertained by the affidavit of the claimant
4. METROPOLITAN TRIAL COURTS or by agreement of the respective claimants if there are more than one,
MUNICIPAL TRIAL COURTS IN CITIES or from the corresponding tax declaration of the real property. Their
MUNICIPAL TRIAL COURTS AND decisions in these cases shall be appealable in the same manner as
MUNICIPAL CIRCUIT COURTS decisions of the Regional Trial Courts. (as amended by R.A. No. 7691)

Section 32. Jurisdiction of Metropolitan Trial Courts, Municipal Section 35. Special jurisdiction in certain cases. – In the absence of
Trial Courts and Municipal Circuit Trial Courts in criminal cases. – all the Regional Trial Judges in a province or city, any Metropolitan Trial
Except in cases falling within the exclusive original jurisdiction of Regional Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and
Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, decide petitions for a writ of habeas corpus or applications for bail in
Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: criminal cases in the province or city where the absent Regional Trial
Judges sit.
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction; and 5. SANDIGANBAYAN
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of PD 1606, Sec. 4. Jurisdiction. The Sandiganbayan shall exercise
fine, and regardless of other imposable accessory or other penalties, original jurisdiction in all cases involving:
including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value, or amount thereof: Provided, however, a. Violations of Republic Act No. 3019, as amended, otherwise known as
That in offenses involving damage to property through criminal negligence the Anti-graft and Corrupt Practices Act, Republic Act No. 1379, and
they shall have exclusive original jurisdiction thereof. (as amended by R.A, Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
No. 7691) one or more of the accused are officials occupying the following positions
in the government whether in a permanent, acting or interim capacity, at
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal the time of the commission of the offense:
Trial Courts and Municipal Circuit Trial Courts in civil cases. –
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial (1) Officials of the executive branch occupying the positions of regional
Courts shall exercise: director and higher, otherwise classified as Grade '27' and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
(1) Exclusive original jurisdiction over civil actions and probate 6758), specifically including:
proceedings, testate and intestate, including the grant of provisional (a) Provincial governors, vice-governors, members of the sangguniang
remedies in proper cases, where the value of the personal property, estate, panlalawigan and provincial treasurers, assessors, engineers and other
or amount of the demand does not exceed One hundred thousand pesos provincial department heads;
(P100,000.00) or, in Metro Manila where such personal property, estate, (b) City mayors, vice-mayors, members of the sangguniang panlungsod,
or amount of the demand does not exceed Two hundred thousand pesos city treasurers, assessors engineers and other city department heads;
(P200,000.00) exclusive of interest damages of whatever kind, attorney's (c) Officials of the diplomatic service occupying the position of consul and
fees, litigation expenses, and costs, the amount of which must be higher;
specifically alleged: Provided, That where there are several claims or (d) Philippine army and air force colonels, naval captains, and all officers
causes of action between the same or different parties, embodied in the of higher rank;
same complaint, the amount of the demand shall be the totality of the (e) Officers of the Philippine National Police while occupying the position
claims in all the causes of action, irrespective of whether the causes of of provincial director and those holding the rank of senior superintendent
action arose out of the same or different transactions; or higher;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful (f) City and provincial prosecutors and their assistants, and officials and
detainer: Provided, That when, in such cases, the defendant raises the prosecutors in the Office of the Ombudsman and special prosecutor;
question of ownership in his pleadings and the question of possession (g) Presidents, directors or trustees, or managers of government-owned
cannot be resolved without deciding the issue of ownership, the issue of or -controlled corporations, state universities or educational institutions or
ownership shall be resolved only to determine the issue of possession. foundations;
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed (2) Members of Congress and officials thereof classified as Grade'27'and
value of the property or interest therein does not exceed Twenty thousand up under the Compensation and Position Classification Act of 1989;
pesos (P20,000.00) or, in civil actions in Metro Manila, where such
assessed value does not exceed Fifty thousand pesos (P50,000.00) (3) Members of the judiciary without prejudice to the provisions of the
exclusive of interest, damages of whatever kind, attorney's fees, litigation Constitution;
expenses and costs: Provided, That value of such property shall be
determined by the assessed value of the adjacent lots. (as amended by (4) Chairmen and members of Constitutional Commissions, without
R.A. No. 7691) prejudice to the provisions of the Constitution; and

Jurisdiction of the MTC: (5) All other national and local officials classified as Grade'27' and higher
1. RTC civil cases where the amount is exactly P300,000/P400,000 or less; under the Compensation and Position Classification Act of 1989.
2. RTC civil cases involving title to or possession of real property with
assessed value of exactly P20,000/P50,000 or less; b. Other offenses or felonies whether simple or complexed with other
3. Small Claims: amount has been increased from P100,000 to P200,000; crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
Cesar Nickolai F. Soriano Jr.
5 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Requirements for jurisdiction of the Sandiganbayan:
c. Civil and criminal cases filed pursuant to and in connection with 1. The offense is committed by public officials and employees mentioned in
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Section 4(A) of P.D. No. 1606, as amended, and
2. That the offense is committed in relation to their office. (Serrana vs.
In cases where none of the accused are occupying positions corresponding Sandiganbayan)
to salary grade '27' or higher, as prescribed in the said Republic Act No.
6758, or military or PNP officers mentioned above, exclusive original Private Persons in conspiracy with public officers with a salary grade
jurisdiction thereof shall be vested in the proper regional trial court, of 27 are also under the jurisdiction of the Sandiganbayan, even
metropolitan trial court, municipal trial court and municipal circuit trial after the death of the said public officer: private persons, when acting
court as the case may be, pursuant to their respective jurisdiction as in conspiracy with public officers, may be indicted and, if found guilty, held
provided in Batas Pambansa Blg. 129, as amended. liable for the pertinent offenses under Section 3 of R.A. 3019, in consonance
with the avowed policy of the anti-graft law to repress certain acts of public
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final officers and private persons alike constituting graft or corrupt practices act or
judgments, resolutions or orders or regional trial courts whether in the which may lead thereto.
exercise of their own original jurisdiction or of their appellate jurisdiction
as herein provided. It is true that by reason of public officer’s death, there is no longer any public
officer with whom respondent can be charged for violation of R.A. 3019. It
The Sandiganbayan shall have exclusive original jurisdiction over petitions does not mean, however, that the allegation of conspiracy between
for the issuance of the writs of mandamus, prohibition, certiorari, habeas them can no longer be proved or that their alleged conspiracy is
corpus, injunctions, and other ancillary writs and processes in aid of its already expunged. The only thing extinguished by such death is the public
appellate jurisdiction and over petitions of similar nature, including quo officer’s personal criminal liability. His death did not extinguish the crime nor
warranto, arising or that may arise in cases filed or which may be filed did it remove the basis of the charge of conspiracy between him and private
under Executive Order Nos. 1,2,14 and 14-A, issued in 1986: Provided, respondent.
That the jurisdiction over these petitions shall not be exclusive of the
Supreme Court. The requirement before a private person may be indicted for violation of
Section 3(g) of R.A. 3019, among others, is that such private person must be
The procedure prescribed in Batas Pambansa Blg. 129, as well as the alleged to have acted in conspiracy with a public officer. The law, however,
implementing rules that the Supreme Court has promulgated and may does not require that such person must, in all instances, be indicted together
hereafter promulgate, relative to appeals/petitions for review to the Court with the public officer. If circumstances exist where the public officer may no
of Appeals, shall apply to appeals and petitions for review filed with the longer be charged in court, as in the present case where the public officer has
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the already died, the private person may be indicted alone. (People vs. Henry Go)
Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the People of the Philippines, 6. COURT OF TAX APPEALS
except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986. The Court of Tax Appeals (CTA), created by RA No. 1125, has been held to
be a part of the judicial system vested with special jurisdiction to act only on
In case private individuals are charged as co-principals, accomplices or protests of private persons adversely affected by the tax, customs or
accessories with the public officers or employees, including those assessment laws. (Ursal vs. CA)
employed in government-owned or controlled corporations, they shall be
tried jointly with said public officers and employees in the proper courts Jurisdiction:
which shall exercise exclusive jurisdiction over them.
Sec. 7. Jurisdiction. - The CTA shall exercise:
Any provisions of law or Rules of Court to the contrary notwithstanding,
the criminal action and the corresponding civil action for the recovery of a. Exclusive appellate jurisdiction to review by appeal, as herein
civil liability shall at all times be simultaneously instituted with, and jointly provided:
determined in, the same proceeding by the Sandiganbayan or the 1. Decisions of the Commissioner of Internal Revenue in cases involving
appropriate courts, the filing of the criminal action being deemed to disputed assessments, refunds of internal revenue taxes, fees or other
necessarily carry with it the filing of the civil action, and no right to reserve charges, penalties in relation thereto, or other matters arising under the
the filing of such civil action separately from the criminal action shall be National Internal Revenue or other laws administered by the Bureau of
recognized: Provided, however, That where the civil action had therefore Internal Revenue;
been filed separately but judgment therein has not yet been rendered, and 2. Inaction by the Commissioner of Internal Revenue in cases involving
the criminal case is hereafter filed with the Sandiganbayan or the disputed assessments, refunds of internal revenue taxes, fees or other
appropriate court, said civil action shall be transferred to the charges, penalties in relations thereto, or other matters arising under the
Sandiganbayan or the appropriate court, as the case may be, for National Internal Revenue Code or other laws administered by the Bureau
consolidation and joint determination with the criminal action, otherwise of Internal Revenue, where the National Internal Revenue Code provides
the separate civil action shall be deemed abandoned." (as amended by RA a specific period of action, in which case the inaction shall be deemed a
No. 8249) denial;
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax
NOTE: Sandiganbayan is not a constitutional court, it is a constitutionally cases originally decided or resolved by them in the exercise of their original
mandated court created by law as required by the Constitution. or appellate jurisdiction;
4. Decisions of the Commissioner of Customs in cases involving liability for
To exercise jurisdiction: customs duties, fees or other money charges, seizure, detention or release
1. What: Crimes enumerated above plus estafa and falsification of of property affected, fines, forfeitures or other penalties in relation thereto,
documents (Serrana vs. Sandiganbayan and Gen. Garcia vs. or other matters arising under the Customs Law or other laws administered
Sandiganbayan) by the Bureau of Customs;
2. Who: any public officer with a salary grade of “27” and such other 5. Decisions of the Central Board of Assessment Appeals in the exercise of
officers enumerated above. its appellate jurisdiction over cases involving the assessment and taxation
3. How: in relation to his public office. The public office must be an essential of real property originally decided by the provincial or city board of
ingredient to the commission of the offense or that the office facilitated assessment appeals;
the commission of the offense. 6. Decisions of the Secretary of Finance on customs cases elevated to him
automatically for review from decisions of the Commissioner of Customs
Cesar Nickolai F. Soriano Jr.
6 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
which are adverse to the Government under Section 2315 of the Tariff and If this Court were to sustain petitioners' contention that jurisdiction over
Customs Code; their certiorari petition lies with the CA, this Court would be confirming
7. Decisions of the Secretary of Trade and Industry, in the case of the exercise by two judicial bodies, the CA and the CTA, of jurisdiction
nonagricultural product, commodity or article, and the Secretary of over basically the same subject matter – precisely the split-jurisdiction
Agriculture in the case of agricultural product, commodity or article, situation which is anathema to the orderly administration of justice.
involving dumping and countervailing duties under Section 301 and 302,
respectively, of the Tariff and Customs Code, and safeguard measures A grant of appellate jurisdiction implies that there is included in it the
under Republic Act No. 8800, where either party may appeal the decision power necessary to exercise it effectively, to make all orders that will
to impose or not to impose said duties. preserve the subject of the action, and to give effect to the final
determination of the appeal. It carries with it the power to protect that
b. Jurisdiction over cases involving criminal offenses as herein jurisdiction and to make the decisions of the court thereunder effective.
provided: The court, in aid of its appellate jurisdiction, has authority to control all
1. Exclusive original jurisdiction over all criminal offenses arising from auxiliary and incidental matters necessary to the efficient and proper
violations of the National Internal Revenue Code or Tariff and Customs exercise of that jurisdiction.
Code and other laws administered by the Bureau of Internal Revenue or
the Bureau of Customs: Provided, however, That offenses or felonies 3. Section 1 of RA 9282: states that the CTA shall be of the same level
mentioned in this paragraph where the principal amount of taxes and fees, as the CA and shall possess all the inherent powers of a court of justice.
exclusive of charges and penalties, claimed is less than One million pesos
(P1,000,000.00) or where there is no specified amount claimed shall be Indeed, courts possess certain inherent powers which may be said to be
tried by the regular Courts and the jurisdiction of the CTA shall be implied from a general grant of jurisdiction, in addition to those expressly
appellate. Any provision of law or the Rules of Court to the contrary conferred on them. These inherent powers are such powers as are
notwithstanding, the criminal action and the corresponding civil action for necessary for the ordinary and efficient exercise of jurisdiction; or are
the recovery of civil liability for taxes and penalties shall at all times be essential to the existence, dignity and functions of the courts, as well as
simultaneously instituted with, and jointly determined in the same to the due administration of justice; or are directly appropriate,
proceeding by the CTA, the filing of the criminal action being deemed to convenient and suitable to the execution of their granted powers; and
necessarily carry with it the filing of the civil action, and no right to reserve include the power to maintain the court's jurisdiction and render it
the filing of such civil action separately from the criminal action will be effective in behalf of the litigants.
recognized.
Thus, this Court has held that "while a court may be expressly granted
2. Exclusive appellate jurisdiction in criminal offenses: the incidental powers necessary to effectuate its jurisdiction, a grant of
a. Over appeals from the judgments, resolutions or orders of the Regional jurisdiction, in the absence of prohibitive legislation, implies the
Trial Courts in tax cases originally decided by them, in their respected necessary and usual incidental powers essential to effectuate it, and,
territorial jurisdiction. subject to existing laws and constitutional provisions, every regularly
b. Over petitions for review of the judgments, resolutions or orders of the constituted court has power to do all things that are reasonably
Regional Trial Courts in the exercise of their appellate jurisdiction over tax necessary for the administration of justice within the scope of its
cases originally decided by the Metropolitan Trial Courts, Municipal Trial jurisdiction and for the enforcement of its judgments and mandates.
Courts and Municipal Circuit Trial Courts in their respective jurisdiction. (City of Manila vs. Judge Cuerdo)

c. Jurisdiction over tax collection cases as herein provided: 7. QUASI-JUDICIAL BODIES


1. Exclusive original jurisdiction in tax collection cases involving final and
executory assessments for taxes, fees, charges and penalties: Provided, Quasi-judicial bodies are not regular courts. The enumeration under Rule 43
however, that collection cases where the principal amount of taxes and is not exclusive, because every now and then, quasi-judicial bodies are
fees, exclusive of charges and penalties, claimed is less than One million created, mostly under the Executive department, e.g., ERC, HLURB.
pesos (P1,000,000.00) shall be tried by the proper Municipal Trial Court,
Metropolitan Trial Court and Regional Trial Court. 8. QUASI COURTS
2. Exclusive appellate jurisdiction in tax collection cases: 9. SHARIA’H COURTS
a. Over appeals from the judgments, resolutions or orders of the Regional
Trial Courts in tax collection cases originally decided by them, in their a. APPELLATE – equivalent to Court of Appeals
respective territorial jurisdiction. b. DISTRICT – equivalent to the Regional Trial Courts in rank, which
b. Over petitions for review of the judgments, resolutions or orders of the were established in certain specified provinces in Mindanao where
Regional Trial Courts in the Exercise of their appellate jurisdiction over tax the Code of Muslim Personal Laws of the Philippines is being
collection cases originally decided by the Metropolitan Trial Courts, enforced.
Municipal Trial Courts and Municipal Circuit Trial Courts, in their respective c. CIRCUIT
jurisdiction. (as amended by RA No. 9282)
Jurisdiction of Sharia’h District Courts:
CTA has the authority to issue writs of certiorari:
1. Art. VIII, Sec. 1 of the 1987 Constitution: On the strength of this Exclusive original jurisdiction over the following:
constitutional provision, it can be fairly interpreted that the power of the 1. All cases involving custody, guardianship, legitimacy, paternity and
CTA includes that of determining whether or not there has been grave filiation arising under Presidential Decree No. 1083;
abuse of discretion amounting to lack or excess of jurisdiction on the
part of the RTC in issuing an interlocutory order in cases falling within 2. All cases involving disposition, distribution and settlement of the estate
the exclusive appellate jurisdiction of the tax court. It, thus, follows that of a deceased Muslim, probate of wills, issuance of letters of administration
the CTA, by constitutional mandate, is vested with jurisdiction to issue or appointment of administrators or executors regardless of the nature or
writs of certiorari in these cases. the aggregate value of the property;

2. Section 6, Rule 135 of the Rules of Court: provides that when by 3. Petitions for declaration of absence and death and for cancellation and
law, jurisdiction is conferred on a court or judicial officer, all auxiliary correction of entries in the Muslim Registries mentioned in Title VI, Book
writs, processes and other means necessary to carry it into effect may Two of Presidential Decree No. 1083;
be employed by such court or officer.
4. All actions arising from customary contracts in which the parties are
Muslims, if they have not specified which law shall govern their relations;
Cesar Nickolai F. Soriano Jr.
7 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
subject matter of the action and the decision sought to be appealed from
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas becomes final and executory.
corpus, and all auxiliary writs and processes in aid of its appellate
jurisdiction; The payment of the docket fees within this period is a condition sine qua non
to the perfection of the appeal.
Concurrent original jurisdiction over the following:
1. Petitions by Muslims for the constitution of the family home, change of The payment of the appellate docket and other lawful fees is not a mere
name and commitment of insane person to any asylum; technicality of law or procedure. It is an essential requirement, without which
2. All other personal and real actions not mentioned in paragraph 1(d) the decision or final order appealed from would become final and executory
wherein the parties involved are Muslims except those for forcible entry as if no appeal was filed at all (Antonio Navarro vs. Metropolitan Bank & Trust
and unlawful detainer which shall fall under the exclusive original Company, see also Saint Louie University, Inc. vs. Cobarrubias)
jurisdiction of the Municipal Circuit Courts; and
3. All special civil actions for interpleader or declaratory relief where the Petition for Certiorari: the Court likewise does not acquire jurisdiction if the
parties are Muslims or the property involved belongs exclusively to a docket fees are not paid within the 60 day period for filing a petition for
Muslim. certiorari. (Mercado vs. CA)

Appellate jurisdiction over all cases tried in the Shari'a Circuit Courts Sun Insurance case:
within their territorial jurisdiction. 1. When filing of initiatory pleading is unaccompanied by payment, court
may allow extension of time for payment but NOT beyond reglementary
It shall decide every case on the basis of the evidence and the records period to file said pleading.
transmitted as well as such memoranda, briefs or oral arguments as the 2. Same rule applies to permissive counterclaims, third-party claims, similar
parties may submit. pleadings.
3. When court acquires jurisdiction by filing and payment, BUT judgment
ESTOPPEL BY LACHES: later on awards a claim which is not specified in the pleading or if
specified, the amount has been left for the determination of court, the
GENERAL RULE: The fundamental rule is that, the lack of jurisdiction of the additional filing fee shall constitute a lien on the judgment which shall
court over an action cannot be waived by the parties, or even cured by their be enforced and collected by the Clerk of Court. (Sun Insurance Office,
silence, acquiescence or even by their express consent. Further, a party may Ltd. V. Hon. Maximiano Asuncion, mentioned in Alday vs. FGU Insurance
assail the jurisdiction of the court over the action at any stage of the Corporation)
proceedings and even on appeal. (Duero vs. CA)
No Automatic Dismissal: qualifications to the rule on non-payment
EXCEPTION: estoppel by laches: active participation in the proceedings in of docket fees: although the payment of the prescribed docket fees is a
the court which rendered the order or decision will bar such party from jurisdictional requirement, its non-payment does not result in the automatic
attacking its jurisdiction. (Tijam vs. Sibonghanoy) While an order or decision dismissal of the case provided the docket fees are paid within the applicable
rendered without jurisdiction is a total nullity and may be assailed at any prescriptive or reglementary period. (Suson vs. CA)
stage, active participation in the proceedings in the court which rendered the
order or decision, including invoking the court’s authority to grant affirmative Notwithstanding the mandatory nature of the requirement of payment of
relief, effectively estops and will bar such party from attacking its jurisdiction. appellate docket fees, we also recognize that its strict application is
(Sps. Gonzaga vs. CA, see also Manila Bankers Life Insurance Corporation vs. qualified by the following:
Eddy Ng Kok Wei) 1. first, failure to pay those fees within the reglementary period allows only
discretionary, not automatic, dismissal;
NOTE STILL: That estoppel must be applied only in exceptional cases, as its 2. second, such power should be used by the court in conjunction with its
misapplication could result in a miscarriage of justice. (Duero vs. CA) exercise of sound discretion in accordance with the tenets of
justice and fair play, as well as with a great deal of circumspection in
The general rule should, however, be, as it has always been, that the issue of consideration of all attendant circumstances. (Antonio Navarro vs.
jurisdiction may be raised at any stage of the proceedings, even on appeal, Metropolitan Bank & Trust Company)
and is not lost by waiver or by estoppel. Estoppel by laches, to bar a litigant
from asserting the court’s absence or lack of jurisdiction, only supervenes in Not subject to waiver: If the defendant filed an answer but did not raise
exceptional cases similar to the factual milieu of Tijam v. Sibonghanoy. the non-payment of the docket fees or paid an incorrect amount, it may still
be raised at any time. This is because the payment of the filing or docket fees
To apply the Tijam doctrine, a considerable period must have already elapsed is jurisdictional. As such, it is not subject to waiver as provided under Sec. 1,
for laches to attach. In applying the principle of estoppel by laches in the Rule 9.
exceptional case of Sibonghanoy, the Court therein considered the patent and
revolting inequity and unfairness of having the judgment creditors go up their Until docket fees are paid, no need to file answer: there is obviously no
Calvary once more after more or less 15 years. (Figueroa vs. People) need to file an answer until petitioner has paid the prescribed docket fees for
only then shall the court acquire jurisdiction over such claim. (Alday vs. FGU
DOCKET FEES Insurance)

DOCKET FEES: a pleading is only considered filed upon payment of the Damages: which are stated in the complaint are included in the computation
correct docket fees. Payment of the docket fees is jurisdictional. of the docket fees.

The court cannot acquire jurisdiction over the subject matter of a case, unless Lien on the Judgment Award: where the docket fees not paid would
the docket fees are paid. And where the filing of the initiatory pleading is not constitute a lien on the judgment award, such as when:
accompanied by payment of the docket fees, the court may allow payment of 1. Interest accrued during the pendency of the case. (Proton case);
the fee within a reasonable time but in no case beyond the applicable 2. Award was given by the court even if the same was not originally prayed
prescriptive or reglementary period. (Mercado vs. CA) for.

Appeals: the payment of docket fees within the prescribed period is Supplemental complaint: a supplement complaint covers events or
mandatory for the perfection of an appeal. Without such payment, the appeal occurrences that have taken effect after the filing of the pleading sought to
is not perfected. The appellate court does not acquire jurisdiction over the be implemented. Filing fees should be paid only for the supplemental
complaint for claims not part of the original complaint.
Cesar Nickolai F. Soriano Jr.
8 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
11. in the name of substantial justice and fair play;
Counter-claims: 12. importance of the issues involved; and
1. Permissive – docket fees are required to be paid for permissive 13. exercise of sound discretion by the judge, guided by all the attendant
counterclaims. circumstances.
2. Compulsory – no need to pay for docket fees.
Thus, there should be an effort, on the part of the party invoking liberality, to
In Korea Technologies vs. Lerma, it was held that effective August 16, advance a reasonable or meritorious explanation for his/her failure to comply
2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC, with the rules. (Saint Louis University Inc. vs. Cobarrubias)
docket fees are now required to be paid in compulsory counterclaim or
cross-claims. The Court ruled in Aranas v. Endona, the strict application of the jurisdictional
nature of the above rule on payment of appellate docket fees may be
However, the above rule has been suspended. As such, as it stands, mitigated under exceptional circumstances to better serve the interest of
there is no need to pay docket fees for compulsory counterclaims. justice. It is always within the power of this Court to suspend its own rules,
or to except a particular case from their operation, whenever the purposes of
Exemptions granted by the SC: justice require it. (Bautista vs. Unangst)
1. Legal Aid Chapter of the IBP, subject to two requirements:
a. Merits test – the case must have merit; DOCTRINE of Exhaustion of Administrative Remedies: before a party
b. Means test – the party does not have capacity to bring the action is allowed to seek the intervention of the court, it is a pre-condition that he
to court, as such, the party must be an indigent. should have availed of all the means of administrative processes afforded him.
2. Unicapital vs. Consing (unusual case) – claim for filing fee was based on Hence, if a remedy within the administrative machinery can still be resorted
“metered” damages. People claim the right to sell properties in behalf of to by giving the administrative officer concerned every opportunity to decide
the corporation. They were thus sued for such misrepresentation, for on a matter that comes within his jurisdiction, then such remedy should be
recovery of sum of money, for P2M a month. Defendants claim that no exhausted first before the court’s judicial power can be sought. The premature
filing fees were paid for the claim. SC: it is allowed. This can be invocation of a court’s intervention is fatal to one’s cause of action. (UP vs.
considered as a lien on the judgment award. Since it accrues while the Catungal, Jr.)
action is pending.
Exceptions:
Environmental Cases: while the Rules require that the docket or filing fees 1. There is estoppel on the part of the party invoking the doctrine;
are to be paid at the filing of the complaint to acquire jurisdiction over the 2. The challenged administrative act is patently illegal, amounting to lack
case, in environmental cases, the filing fees are deferred until judgment on of jurisdiction;
the case. 3. There is unreasonable delay or official inaction that will irretrievably
prejudice the complainant;
Writ of Amparo: there are no docket or filing fees required. Unlike in the 4. The amount involved is relatively so small as to make the rule
Writ of Habeas Data which requires the payment of such fees, unless the party impractical and oppressive;
is an indigent. 5. The question involved is purely legal and will ultimately have to be
decided by the courts of justice;
Actions to recover title to or possession of real property: In computing 6. Judicial intervention is urgent;
the docket fees for cases involving real properties, the courts, instead of 7. The application of the doctrine may cause great and irreparable
relying on the assessed or estimated value, would now be using the fair damage;
market value of the real properties (as stated in the Tax Declaration or the 8. The controverted acts violate due process;
Zonal Valuation of the Bureau of Internal Revenue, whichever is higher) or, 9. The issue of non-exhaustion of administrative remedies has been
in the absence thereof, the stated value of the same. (Ruby Shelter Builders rendered moot;
and Realty Development Realty Corporation vs. Formaran) 10. There is no other plain, speedy and adequate remedy;
11. Strong public interest is involved; and
Non-payment within the reglementary period; strict compliance; 12. Quo warranto proceedings
exceptions; While procedural rules are liberally construed, the provisions on
reglementary periods are strictly applied, indispensable as they are to the II. RULES 1 TO 5
prevention of needless delays, and are necessary to the orderly and speedy
discharge of judicial business. RULES OF COURT

Viewed in this light, procedural rules are not to be belittled or dismissed simply Pursuant to the provisions of section 5 (5) of Article VIII of the Constitution,
because their non-observance may have prejudiced a party's substantive the Supreme Court hereby adopts and promulgates the following rules
rights; like all rules, they are required to be followed. concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission to the practice of law, the
However, there are recognized exceptions to their strict observance, Integrated Bar, and legal assistance to the underprivileged:
such as:
1. most persuasive and weighty reasons; Constitutional Basis for Rules of Court:
2. to relieve a litigant from an injustice not commensurate with his failure
to comply with the prescribed procedure; 1987 Constitution, Art. VIII, Sec. 5(5)
3. good faith of the defaulting party by immediately paying within a
reasonable time from the time of the default; Promulgate rules concerning the protection and enforcement of
4. the existence of special or compelling circumstances; constitutional rights, pleading, practice, and procedure in all courts, the
5. the merits of the case; admission to the practice of law, the integrated bar, and legal assistance
6. a cause not entirely attributable to the fault or negligence of the party to the under-privileged. Such rules shall provide a simplified and
favored by the suspension of the rules; inexpensive procedure for the speedy disposition of cases, shall be uniform
7. a lack of any showing that the review sought is merely frivolous and for all courts of the same grade, and shall not diminish, increase, or modify
dilatory; substantive rights. Rules of procedure of special courts and quasi-judicial
8. the other party will not be unjustly prejudiced thereby; bodies shall remain effective unless disapproved by the Supreme Court.
9. fraud, accident, mistake or excusable negligence without the appellant's
fault; RULE 1: GENERAL PROVISIONS
10. peculiar, legal and equitable circumstances attendant to each case;
Cesar Nickolai F. Soriano Jr.
9 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 1. Title of the Rules. — These Rule shall be known and cited Section 1. Ordinary civil actions, basis of. — Every ordinary civil
as the Rules of Court. action must be based on a cause of action.

A. ACTIONS; COMMENCEMENT Section 2. Cause of action, defined. — A cause of action is the act
or omission by which a party violates a right of another.
Section 3. Cases governed. — These Rules shall govern the procedure
to be observed in actions, civil or criminal and special proceedings. The cause of action lies with the defendant, because he is the violator or
cause of the “act or omission” which gives rise to the same.
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress Rule 6, Sec. 3 should thus refer to a plaintiff’s right of action, not cause of
of a wrong. A civil action may either be (1) ordinary or (2) special. Both action.
are governed by the rules for ordinary civil actions, subject to the specific
rules prescribed for a special civil action. ELEMENTS of a cause of action are:
1. A right in favor of the plaintiff by whatever means and under whatever
(b) A criminal action is one by which the State prosecutes a person law it arises or is created;
for an act or omission punishable by law. 2. An obligation on the part of the named defendant to respect or not to
violate such right; and
(c) A special proceeding is a remedy by which a party seeks to 3. An act or omission on the part of such defendant in violation of the right
establish a status, a right, or a particular fact. of the plaintiff or constituting a breach of the obligation of the defendant
to the plaintiff for which the latter may maintain an action for recovery
Action vs. Suit: There is no difference between an action and a suit; but if of damages. (Relucio vs. Lopez)
there is, “action” is generally confined with the proceedings in a court of law,
while “suit” is equally applied to prosecutions at law or in equity. However, in Cause of action that has not ripen yet: not allowed; premature. Even if
the Philippines, there is no such distinction because there are no courts of the cause of action ripened during the pendency of the action. The SC
equity in this jurisdiction. explained that you cannot amend a pleading to give it a cause of action when
in the outset it had no cause of action. This cannot be corrected by an
Section 5. Commencement of action. — A civil action is commenced amendment.
by the filing of the original complaint in court. If an additional defendant
is impleaded in a later pleading, the action is commenced with regard to B. ONE SUIT FOR ONE ACTION
him on the dated of the filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied by the court. Section 3. One suit for a single cause of action. — A party may not
institute more than one suit for a single cause of action.
Significance: of the above provision is for purposes of determining the
reglementary period, which is particularly important when the defense of A single act will rise to a single cause of action; whereas two acts or omissions,
prescription is raised. call for two complaints, etc.

Filing of complaint by registered mail: is deemed filed from the date it is SPLITTING OF A SINGLE CAUSE OF ACTION
mailed, not when received. However, if the docket fees are paid on a
subsequent date, the date of such payment is deemed the date of filing of the Section 4. Splitting a single cause of action; effect of. — If two or
pleading. more suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a ground
APPLICABILITY OF RULES: for the dismissal of the others.

Section 2. In what courts applicable. — These Rules shall apply in all Splitting of a Single Cause of Action is the act of dividing a single cause
the courts, except as otherwise provided by the Supreme Court. of action, claim or demand into two or more parts, intending to reserve the
rest for another separate action; filing of two complaints for a single cause of
APPLICABILITY AS TO CASES: action will be a ground for dismissal of one and amendment of the other.

Section 4. In what case not applicable. — These Rules shall not apply Acts should be understood to include a series of transactions.
to election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy Purpose of the proscription:
or in a suppletory character and whenever practicable and convenient. 1. In order to avoid harassment and vexation to defendant;
2. To obviate multiplicity of suits.
Naturalization case: the rule on formal offer of evidence (Rule 132, §34) is
not applicable to a case involving a petition for naturalization. The only Remedies of defendant:
instance when said rules may be applied is by analogy or suppletorily in such 1. File motion to dismiss on the ground of litis pendentia, if one action is
cases is when it is "practicable and convenient.” (Ong Chia vs. Republic) ending and another one is filed from the same cause of action;
2. File motion to dismiss on the ground of res judicata, if there is already
CONSTRUCTION: a final judgment on one action and another one is instituted based on
the same cause of action.
Section 6. Construction. — These Rules shall be liberally construed in
order to promote their objective of securing a just, speedy and inexpensive Installments: In a loan payable in installments, non-payment of one
disposition of every action and proceeding. installment is a cause of action in itself. Hence, may be raised in separate
cases, or alleged in supplemental pleadings in the same case.
CIVIL ACTIONS
ORDINARY CIVIL ACTIONS JOINDER OF CAUSES OF ACTION

RULE2: CAUSE OF ACTION Section 5. Joinder of causes of action. — A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he may
have against an opposing party, subject to the following conditions:

Cesar Nickolai F. Soriano Jr.


10 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
(a) The party joining the causes of action shall comply with the rules on Section 15. Entity without juridical personality as
joinder of parties; defendant. — When two or more persons not organized as an entity
(b) The joinder shall not include special civil actions or actions governed with juridical personality enter into a transaction, they may be sued
by special rules; under the name by which they are generally or commonly known.
(c) Where the causes of action are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the In the answer of such defendant, the name and addresses of the
Regional Trial Court provided one of the causes of action falls within the persons composing said entity must all be revealed.
jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes action are principally for recovery of Summons, upon the entity may be served upon any one of these persons or
money, the aggregate amount claimed shall be the test of jurisdiction. upon the person in charge thereof.

Purpose: to avoid multiplicity of suits. The individual members cannot sue under the name of the entity but may,
however, may sue in their own name.
Permissive: joinder of causes of action is permissive, not mandatory. As
such, it is upon the plaintiff on whether he wants to join the causes of action Section 2. Parties in interest. — A real party in interest is the party
in one case or not. who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit. Unless otherwise
Compliance with the requirements of joinder of parties: necessary authorized by law or these Rules, every action must be prosecuted or
that the right of relief from said (1) causes of action should arise out of the defended in the name of the real party in interest.
same transaction or series of transactions and (2) a question of law
and fact common to all the plaintiffs or defendants may arise in the A party, not a real party in interest is included: maybe the subject of a
action. motion to dismiss on the ground that the pleading asserting the claim does
not state a cause of action.
No special civil actions: only causes of action for ordinary civil actions may
be joined. This is because special civil actions are governed by special rules Direct Injury Test
that may not be allowed in regular proceedings, e.g., certiorari, where the
court does not necessarily acquire jurisdiction over the person of the Transcendental Importance
respondent by summons.
Far-reach implication test
Example: Collection of sum of money with foreclosure of real estate mortgage
covering another loan. Section 3. Representatives as parties. — Where the action is allowed
to be prosecuted and defended by a representative or someone acting in
REMEDY FOR MISJOINDER: Should the plaintiff include the special civil a fiduciary capacity, the beneficiary shall be included in the title of the case
action, is this a ground for dismissal? No. Sec. 6 of Rule 2 provides: and shall be deemed to be the real party in interest. A representative may
be a trustee of an express trust, a guardian, an executor or administrator,
Section 6. Misjoinder of causes of action. — Misjoinder of causes or a party authorized by law or these Rules. An agent acting in his own
of action is not a ground for dismissal of an action. A misjoined name and for the benefit of an undisclosed principal may sue or be sued
cause of action may, on motion of a party or on the initiative of the without joining the principal except when the contract involves things
court, be severed and proceeded with separately. belonging to the principal.

As such, the proper remedy is to file for severance. BAR QUESTION: Distinguish representative party and a class suit.

Jurisdiction: shall be with the RTC who has jurisdiction or venue over one ANSWER: Improper question. A class suit is a “suit” whereas a representative
of the causes of action, even if the other is under the jurisdiction of the MTC. party is a “party” to the suit. No distinguishing or common ground.
For purposes of determining jurisdictional amount, par. (d) above provides
that in recovery of money, the aggregate amount shall be the test of A parties in a class suit are those under a common interest in a question
jurisdiction. of law or fact that it would be impractical to bring them all to court; whereas
class suit is one where the parties in interest are so numerous that it is
SPLITTING VS. JOINDER OF CAUSES OF ACTION: In joinder, several impractical to bring them all to court.
acts or omissions are put in one complaint, in splitting, there was only one act
or omission, where only one complaint should be filed, but were separated. Impracticality refers not only to physical but also to procedure, e.g., filing of
the complaint.
JOINDER OF CAUSES OF ACTIONS (Rule 2, Sec. 5) VS. PARTIES (Rule
3, Sec. 6): the latter refers to multiplicity of parties, while the former refers Representative party, on the other hand, is one who is not a party in
to multiplicity of causes of actions, where only one action is filed. interest but he represents a party in interest, e.g., trustee in an express trust,
administrator/executor of an estate, guardians ad litem.
RULE 3: PARTIES TO A CIVIL ACTION
Section 4. Spouses as parties. — Husband and wife shall sue or be
C. PARTIES TO A CIVIL ACTION sued jointly, except as provided by law.

Section 1. Who may be parties; plaintiff and defendant. — Only Exceptions:


natural or juridical persons, or entities authorized by law may be parties in 1. Crime committed by one spouse;
a civil action. The term "plaintiff" may refer to the claiming party, the 2. Administrative case against a spouse in relation to the exercise of one’s
counter-claimant, the cross-claimant, or the third (fourth, etc.) — party profession;
plaintiff. The term "defendant" may refer to the original defending party, 3. Suit of one spouse against another;
the defendant in a counter-claim, the cross-defendant, or the third (fourth, 4. If there is judicial separation of property, or if the subject of the case is
etc.) — party defendant. the exclusive property of one spouse.

Entity without juridical personality: cannot sue as such entity, but may
be sued:

Cesar Nickolai F. Soriano Jr.


11 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 5. Minor or incompetent persons. — A minor or a person accorded in the suit even without their participation, since the suit is presumed
alleged to be incompetent, may sue or be sued with the assistance of his to have been filed for the benefit of all co-owners. (Navarro vs. Escobido)
father, mother, guardian, or if he has none, a guardian ad litem.
Note, however, that when a co-owner is sued as a principal (whether in his
JOINDER OF PARTIES own or representative capacity) in an agency to sell the property, he may be
sued even without the other co-owners. (De Castro vs. CA)
Section 6. Permissive joinder of parties. — All persons in whom or
against whom any right to relief in respect to or arising out of the same Judicial Partition: however, if the case is for judicial partition, all co-owners
transaction or series of transactions is alleged to exist, whether jointly, are indispensable parties. Such that, failure to implead one, will result in the
severally, or in the alternative, may, except as otherwise provided in these judgment rendered being void.
Rules, join as plaintiffs or be joined as defendants in one complaint, where
any question of law or fact common to all such plaintiffs or to all such Effect of not impleading a NECESSARY party:
defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being Section 9. Non-joinder of necessary parties to be pleaded. —
embarrassed or put to expense in connection with any proceedings in Whenever in any pleading in which a claim is asserted a necessary party
which he may have no interest. is not joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission
INDISPENSABLE AND NECESSARY PARTIES unmeritorious, it may order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
Section 7. Compulsory joinder of indispensable parties. — Parties
in interest without whom no final determination can be had of an action The failure to comply with the order for his inclusion, without justifiable
shall be joined either as plaintiffs or defendants. cause, shall be deemed a waiver of the claim against such party.

Section 8. Necessary party. — A necessary party is one who is not The non-inclusion of a necessary party does not prevent the court from
indispensable but who ought to be joined as a party if complete relief is to proceeding in the action, and the judgment rendered therein shall be
be accorded as to those already parties, or for a complete determination without prejudice to the rights of such necessary party.
or settlement of the claim subject of the action.
Remedy for Non-Joinder of indispensable or necessary party: is to
Indispensable Party is one without whom there can be no final ask for their inclusion NOT DISMISSAL. The court may, upon motion, or in its
determination of the case. own initiative order that the other parties be impleaded, as provided under
Sec. 11:
Necessary Party is one without whom there can be no complete
determination of the case. Accordingly, the case may proceed. Section 11. Misjoinder and non-joinder of parties. — Neither
misjoinder nor non-joinder of parties is ground for dismissal of an action.
However, the reasons for the non-inclusion of a necessary party must be Parties may be dropped or added by order of the court on motion of any
stated in the complaint, otherwise, it may be deemed that the claim against party or on its own initiative at any stage the action and on such terms as
him has been waived. are just. Any claim against a misjoined party may be severed and
proceeded with separately.
See Relucio vs. Lopez under cause of action.
However, after such order is given, and the plaintiff refuses or fails to implead
Effect of not impleading an indispensable party: if one indispensable the:
party is not brought to court the judgment of the court is null and void, not
only as to those who were not brought in the complaint, but also those who 1. Indispensable party, the court may dismiss the complaint/petition for the
were brought in the case. petitioner/plaintiff’s failure to comply therefor, as provided above.

The joinder of indispensable parties is mandatory and courts cannot proceed Moreover, if an indispensable party was not impleaded and judgment
without their presence. Whenever it appears to the court in the course of a was rendered. Such judgment is void. Note that the case was not
proceeding that an indispensable party has not been joined, it is the duty of dismissed, but the judgment was void for failure to implead an
the court to stop the trial and order the inclusion of such party. (De Castro vs. indispensable party.
CA)
2. Necessary party, the non-inclusion is not a ground for dismissal, but the
Solidary liability does not connote being indispensable parties: claim against the necessary party is deemed waived. Moreover, if a
solidarity does not make a solidary obligor an indispensable party in a suit judgment has been rendered despite non-inclusion, such judgment is
filed by the creditor. Article 1216 of the Civil Code says that the creditor `may valid.
proceed against anyone of the solidary debtors or some or all of them
simultaneously.’ (De Castro vs. CA) Strangers to a case: No man shall be affected by any proceeding to which
he is a stranger, and strangers to a case are not bound by any judgment
Co-owners: In a co-ownership, the co owners are indispensable parties rendered by the court. In the same manner, a writ of execution can be issued
when they are impleaded as defendants, but if they file a case as plaintiffs, only against a party and not against one who did not have his day in court.
even one of the co-owners can file it without including the other co-owners. Only real parties in interest in an action are bound by the judgment therein
This is because the co-owner(s) who bring the suit is presumed to bring it for and by writs of execution and demolition issued pursuant thereto. (Orquiola
an in behalf of the other co-owners. vs. CA)

In suits to recover properties, all co-owners are real parties in interest. CLASS SUIT
However, pursuant to Article 487 of the Civil Code and relevant jurisprudence,
any one of them may bring an action, any kind of action, for the recovery of Section 12. Class suit. — When the subject matter of the controversy is
co-owned properties. Therefore, only one of the co-owners, namely the co- one of common or general interest to many persons so numerous that it
owner who filed the suit for the recovery of the co-owned property, is an is impracticable to join all as parties, a number of them which the court
indispensable party thereto. The other co-owners are not indispensable finds to be sufficiently numerous and representative as to fully protect the
parties. They are not even necessary parties, for a complete relief can be interests of all concerned may sue or defend for the benefit of all. Any

Cesar Nickolai F. Soriano Jr.


12 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
party in interest shall have the right to intervene to protect his individual survive, the injury complained of is to the person, the property and rights of
interest. property affected being incidental. (Carabeo vs. Sps. Dingco)

Requisites: Duty of the Lawyer: to inform the court within 30 days after notice of such
1. The controversy is one of common or general interest to many persons. death and to name a legal representative.

Examples: Duty of the Court: to issue an order requiring the substitute or legal
a. Residents of a subdivision whose right of way was blocked. Their representative to appear and order substitution.
interests are common – i.e., access to the road;
b. Oposa vs. Factoran – the common or general interest is the Effect on judgment: both of the above duties are necessary for proper
intergenerational responsibility to protect ecology. However, under substitution. Otherwise, the judgment rendered without a valid substitution
the Rules on Environmental Laws, this is now known as a Citizen’s may be void. Except, if the legal representative/s actively participated.
Suit.
Note that the requirement of substitution is for purposes of due process, not
There is no common or general interest: for jurisdiction.
a. In a vehicular mishap, the victims of the car crash, where some
died, some were injured, some were traumatized, cannot sue as a A formal substitution by heirs is not necessary when they themselves
class since they do not have a common or general interest. voluntarily appear, participate in the case, and present evidence in defense of
b. In a ship that sank, the victims are doctors, lawyers and some the deceased. These actions negate any claim that the right to due process
common people – they do not have common interests. was violated. (Sps. Dela Cruz vs. Joaquin)

They may, however, sue by joinder of parties. Substitution is not a matter of jurisdiction but of due process: the
rule on the substitution by heirs is not a matter of jurisdiction, but a
2. The persons are so numerous that it is impracticable to join all the parties requirement of due process. Thus, when due process is not violated, as when
and to bring them all to court; the right of the representative or heir is recognized and protected,
3. There is adequate representation: noncompliance or belated formal compliance with the Rules cannot affect the
a. Whether the interest of the named party is co-extensive with the validity of a promulgated decision. Mere failure to substitute for a deceased
interest of the class; plaintiff is not a sufficient ground to nullify a trial court’s decision. The alleging
b. The proportion of those made as a party in relation to the total party must prove that there was an undeniable violation of due process. (Sps.
number of persons in the class; Dela Cruz vs. Joaquin)
c. Other factors bearing on the ability of the named party to speak for
the rest of the class. Legal Representative: an heir, executor or administrator.

Section 11. Misjoinder and non-joinder of parties. — Neither Section 17. Death or separation of a party who is a public officer.
misjoinder nor non-joinder of parties is ground for dismissal of an action. — When a public officer is a party in an action in his official capacity and
Parties may be dropped or added by order of the court on motion of any during its pendency dies, resigns, or otherwise ceases to hold office, the
party or on its own initiative at any stage the action and on such terms as action may be continued and maintained by or against his successor if,
are just. Any claim against a misjoined party may be severed and within thirty (30) days after the successor takes office or such time as may
proceeded with separately. be granted by the court, it is satisfactorily shown to the court by any party
that there is a substantial need for continuing or maintaining it and that
DEATH OR SEPARATION OF PARTY the successor adopts or continues or threatens to adopt or continue to
adopt or continue the action of his predecessor. Before a substitution is
Section 16. Death of party; duty of counsel. — Whenever a party to made, the party or officer to be affected, unless expressly assenting
a pending action dies, and the claim is not thereby extinguished, it shall thereto, shall be given reasonable notice of the application therefor and
be the duty of his counsel to inform the court within thirty (30) days after accorded an opportunity to be heard.
such death of the fact thereof, and to give the name and address of his
legal representative or representatives. Failure of counsel to comply with Requisites:
his duty shall be a ground for disciplinary action. 1. The public officer is a party in an action in his official capacity;
2. He dies, resigns or otherwise ceases to hold office;
The heirs of the deceased may be allowed to be substituted for the 3. The successor adopts or continues or threatens to adopt or continue to
deceased, without requiring the appointment of an executor or adopt or continue the action of the predecessor.
administrator and the court may appoint a guardian ad litem for the minor
heirs. If it cannot be determined that the successor will adopt or continue to adopt
the acts of his predecessor, he must be notified before substitution can be
The court shall forthwith order said legal representative or representatives made.
to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, TRANSFER OF INTEREST
or if the one so named shall fail to appear within the specified period, the
court may order the opposing party, within a specified time to procure the Section 19. Transfer of interest. — In case of any transfer of interest,
appointment of an executor or administrator for the estate of the deceased the action may be continued by or against the original party, unless the
and the latter shall immediately appear for and on behalf of the deceased. court upon motion directs the person to whom the interest is transferred
The court charges in procuring such appointment, if defrayed by the to be substituted in the action or joined with the original party.
opposing party, may be recovered as costs.
Actions of the court:
Applicability: of this rule is only if the action survives the death of the party. 1. The court may validly render judgment even without substitution or
The question as to whether an action survives or not depends on the nature impleading the transferee;
of the action and the damage sued for. 2. The court may require that the transferee be impleaded;
3. The court may require that the transferee be substituted.
In the causes of action which survive, the wrong complained of affects
primarily and principally property and property rights, the injuries to
the person being merely incidental, while in the causes of action which do not
Cesar Nickolai F. Soriano Jr.
13 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
PROBLEM: During his lifetime and the pendency of the case, A transferred Section 14. Unknown identity or name of defendant. — Whenever
his property to B. A continued to be a party to the case and died during its the identity or name of a defendant is unknown, he may be sued as the
pendency. Which provision will apply? unknown owner heir devisee, or by such other designation as the case
may require, when his identity or true name is discovered, the pleading
ANSWER: Sec. 16. Transfer of interest can only be effected during the must be amended accordingly.
lifetime of the party. Thus, the proper party to be substituted is either the
heir, executor or administrator and not the transferee of the property. Section 21. Indigent party. — A party may be authorized to litigate his
action, claim or defense as an indigent if the court, upon an ex
Section 18. Incompetency or incapacity. — If a party becomes parte application and hearing, is satisfied that the party is one who has no
incompetent or incapacitated, the court, upon motion with notice, may money or property sufficient and available for food, shelter and basic
allow the action to be continued by or against the incompetent or necessities for himself and his family.
incapacitated person assisted by his legal guardian or guardian ad litem.
Such authority shall include an exemption from payment of docket and
CONTRACTUAL MONEY CLAIMS other lawful fees, and of transcripts of stenographic notes which the court
may order to be furnished him. The amount of the docket and other lawful
Section 20. Action and contractual money claims. — When the fees which the indigent was exempted from paying shall be a lien on any
action is for recovery of money arising from contract, express or implied, judgment rendered in the case favorable to the indigent, unless the court
and the defendant dies before entry of final judgment in the court in which otherwise provides.
the action was pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final judgment. A Any adverse party may contest the grant of such authority at any time
favorable judgment obtained by the plaintiff therein shall be enforced in before judgment is rendered by the trial court. If the court should
the manner especially provided in these Rules for prosecuting claims determine after hearing that the party declared as an indigent is in fact a
against the estate of a deceased person. person with sufficient income or property, the proper docket and other
lawful fees shall be assessed and collected by the clerk of court. If payment
Action for contractual money claims survives the death of the defendant is not made within the time fixed by the court, execution shall issue or the
and such death is not a ground for dismissal, it shall continue until entry payment thereof, without prejudice to such other sanctions as the court
of final judgment. may impose.

A favorable judgment obtained by the plaintiff shall be proceeded against in Indigent Party: is defined under Sec. 18, Rule 141 as that party whose
accordance with Rule 86 of the Rules of Court: Claims against the estate. income or that of his immediate family does not exceed double the monthly
minimum wage and does not own any real property with a fair market value
Claim must be based on a contract: As such, if for example, it arise from exceeding P300,000. The court does not require to exercise discretion. If the
quasi-delict, it shall not fall within the provisions of the above. party falls within such definition, he is considered an indigent party. (Sps.
Algura vs. Local Government of Naga)
Claims which may be proceeded against the estate:
1. Funeral Expenses; If one of the above is not met, the indigency test may be resorted to, under
2. Expenses of last illness; Sec. 21, Rule 3, i.e., that the party is one who has no money or property
3. Judgment for money arising from contract, whether express or implied; sufficient and available for food, shelter and basic necessities for himself and
4. Damages. (Rule 86, Sec. 5) his family. The court may declare him indigent.

All other claims may be filed under Rule 87: Action By or Against Executor or As an indigent, the party is:
Administrator. 1. Not required to pay docket fees for the time being but in case of a
favorable decision, such fees shall be a lien on the judgment award;
NOTE: 2. Not required to pay for the copy of the transcripts of stenographic case.
1. Sec. 20, Rule 3 above comes within the claims against the estate under
no. 3 in the above enumeration; Rule 141, Sec. 19
2. The favorable judgment obtained must be filed as a claim against the
estate, which presupposes that settlement thereof has already begun. Section 22. Notice to the Solicitor General. — In any action involving
Otherwise, the judgment creditor may initiate settlement proceedings, the validity of any treaty, law, ordinance, executive order, presidential
as such. decree, rules or regulations, the court, in its discretion, may require the
3. Once filed and approved, must await final settlement of estate and its appearance of the Solicitor General who may be heard in person or a
distribution. representative duly designated by him.

Compared with Sec. 16: RULE 4: VENUE


1. Applies only if the one who dies is the defendant;
2. The case concerns sum of money arising from contract; D. VENUE OF ACTIONS; REAL ACTIONS; PERSONAL ACTIONS
3. No substitution; the case will continue against the estate of the
defendant. Section 1. Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be commenced and
OTHER PROVISIONS UNDER RULE 3: tried in the proper court which has jurisdiction over the area wherein the
real property involved, or a portion thereof, is situated.
Section 10. Unwilling co-plaintiff. — If the consent of any party who
should be joined as plaintiff cannot be obtained, he may be made a Forcible entry and detainer actions shall be commenced and tried in the
defendant and the reason therefor shall be stated in the complaint. municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.
Section 13. Alternative defendants. — Where the plaintiff is uncertain
against who of several persons he is entitled to relief, he may join any or Venue of Real Actions is the place where the property is located. However,
all of them as defendants in the alternative, although a right to relief not all actions which may involve real property may be considered as “real
against one may be inconsistent with a right of relief against the other. actions” for purposes of the venue, what is controlling, is that the actions
affect “title to or possession of” real property.

Cesar Nickolai F. Soriano Jr.


14 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Example, the following are personal actions: There is a specific law or rule providing for the venue, but the parties
1. Action to recover purchase price of the land (Garcia vs. Velasco) stipulated on the venue: the law or rule will apply. Basic is the rule that
2. Action to compel mortgagee to accept payment (Hernandez vs. Rural stipulations must not be contrary to law.
Bank of Lucena)
3. An action filed by the husband for damages, based on the wife’s RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
adulterous acts, and for his share in the fruits of the conjugal
partnership, with a prayer for injunction to restrain her from selling real Section 1. Uniform procedure. — The procedure in the Municipal Trial
property belonging to the conjugal partnership. (De Guzman vs. Genato) Courts shall be the same as in the Regional Trial Courts, except (a) where
a particular provision expressly or impliedly applies only to either of said
Section 2. Venue of personal actions. — All other actions may be courts, or (b) in civil cases governed by the Rule on Summary Procedure.
commenced and tried where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the principal defendants resides, Ordinary Procedure vs. Summary Procedure:
or in the case of a non-resident defendant where he may be found, at the
election of the plaintiff. ORDINARY PROCEDURE SUMMARY PROCEDURE
Complaint/Answer Complaint/Answer
General Rule: Sections 1 and 2 provide for the basic rules on venue of Answer to be filed generally within Answer to be filed within 10 days
actions or the default rules. Note that the general rule for venue of civil actions 15 days
may be waived or agreed upon or may be otherwise fixed by law or rules, as Motion for Extension to File Said motion is a prohibited
provided under Sec. 4 of Rule 4. Answer is allowed pleading
Plaintiff may file a Reply although Reply is a prohibited pleading
Venue of other actions as set by the Rules: not mandatory
1. Adoption – resident of the petitioner; Pre-trial/Mediation/Judicial Dispute Preliminary Conference
2. Guardianship – resident of the ward; Resolution
3. Quo Warranto – resident of the respondent; Pre-trial under Rule 18, Sec. 1, the Preliminary Conference takes
plaintiff has the duty to file an ex- place within 30 days from the
Parties’ Agreement as to venue: must contain exclusivity for the parte motion to set the case for filing of the last pleading
agreement to apply. Otherwise, the general rule shall be applicable. pre-trial “promptly”; in 2004, in
the guidelines issued by the SC on
Residence as used under Sec. 2 above, should mean his personal, actual or pre-trial and modes of discovery,
physical habitation or his actual residence or place of abode (Fule, et al. vs. within 5 days from the filing of the
CA) not his permanent home or residence. (Koh vs. CA) reply or the last pleading as
confirmed in the Lapu Lapu case.
Improper Venue as ground for dismissal: improper venue not raised as A motion to dismiss on any of the Motion to Dismiss is a prohibited
a ground in a motion to dismiss can still be raised as an affirmative defense grounds under Rule 16 may be pleading, except if the ground is
and not considered waived.
filed lack of jurisdiction over the
subject matter or non-compliance
Section 3. Venue of actions against nonresidents. — If any of the with barangay conciliation
defendants does not reside and is not found in the Philippines, and the proceedings
action affects the personal status of the plaintiff, or any property of said
A petition for certiorari may be Petitions for certiorari, prohibition
defendant located in the Philippines, the action may be commenced and filed against interlocutory orders, or mandamus are prohibited
tried in the court of the place where the plaintiff resides, or where the
such as denial of a motion to pleadings
property or any portion thereof is situated or found. dismiss
EXCEPTIONS, certiorari was
Section 4. When Rule not applicable. — This Rule shall not apply. granted:
* case of Bayog – a farmer who
(a) In those cases where a specific rule or law provides otherwise; or had tuberculosis was not able to
(b) Where the parties have validly agreed in writing before the filing of the file an answer, a petition for relief
action on the exclusive venue thereof. was granted even if it is a
prohibited pleading, due to the
Words of exclusivity: There can be a valid venue stipulation concerning special circumstance;
real property provided, there are words of exclusivity, the stipulation * case of Go – the preliminary
concerning venue is valid even if it concerns title to, possession of or interest conference was held in abeyance
in, real property. Trial – presentation of testimonial No trial in the strict sense. Parties
evidence subject to the Judicial are only required to submit
While they are considered valid and enforceable, venue stipulations in a Affidavit Rule covering direct judicial affidavits or position
contract do not, as a rule, supersede the general rule set forth in Rule 4 of examination paper.
the Revised Rules of Court in the absence of qualifying or restrictive words. Within 60 days, submitted for Within 30 days, submitted for
They should be considered merely as an agreement or additional forum, not decision decision
as limiting venue to the specified place. They are not exclusive but, rather
Motion for reconsideration may be Motion for reconsideration of a
permissive. If the intention of the parties were to restrict venue, there must filed against a judgment judgment is a prohibited pleading
be accompanying language clearly and categorically expressing their purpose (but does not include an MR
and design that actions between them be litigated only at the place named against an interlocutory order). As
by them. such, the remedy is to file an
ordinary appeal.
Examples: "only," "solely," "exclusively in this court," "in no other court save
Petition for relief may be filed Prohibited pleading subject to the
—," "particularly," "nowhere else but/except —," or words of equal import
against an executory order exception in the case of Bayog
were stated in the contract. (Pacific Consultants International Asia, Inc. vs.
Schonfeld)
MTC to RTC appeal: the RTC can review based on the entire records of the
case. (Rule 40, Sec. 7 and Sec. 18 of Rule 70) As such, the RTC may rule
upon matters not originally raised on appeal.

Cesar Nickolai F. Soriano Jr.


15 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
(b) An affirmative defense is an allegation of a new matter which,
SUMMARY PROCEDURE VS. SMALL CLAIMS SUIT while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar
SUMMARY PROCEDURE SMALL CLAIMS SUIT recovery by him. The affirmative defenses include fraud, statute of
Lawyers may be present to litigate No lawyer is allowed to appear limitations, release, payment, illegality, statute of frauds, estoppel, former
Terms: Complaint/Answer Terms: Application/Reply recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.

Section 2. Meaning of terms. — The term "Municipal Trial Courts" as Negative defense: must be raised through a specific denial in accordance
used in these Rules shall include Metropolitan Trial Courts, Municipal Trial with Rule 8, Sec. 10. Otherwise, a general denial, or that which denies the
Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. allegations but does not state the truth of the matter, may be regarded as an
admission.
III. RULES 6 TO 9
From there, the plaintiff may move for Summary Judgment or Judgment on
RULE 6: KINDS OF PLEADINGS the Pleadings, as the case may be.

Section 1. Pleadings defined. — Pleadings are the written statements COUNTERCLAIMS


of the respective claims and defenses of the parties submitted to the court
for appropriate judgment. Section 6. Counterclaim. — A counterclaim is any claim which a
defending party may have against an opposing party.
Section 2. Pleadings allowed. — The claims of a party are asserted in
a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, Different from the Answer: a counterclaim is the claim of the defendant
or complaint-in-intervention. against the plaintiff, so that the plaintiff may be declared in default with
respect to the counterclaim if he does not file an answer thereto.
The defenses of a party are alleged in the answer to the pleading asserting
a claim against him. Section 7. Compulsory counterclaim. — A compulsory
counterclaim is one which, being cognizable by the regular courts of
An answer may be responded to by a reply. justice, arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing
KINDS OF PLEADINGS: party's claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire
Criminal Proceedings: in criminal proceedings: jurisdiction. Such a counterclaim must be within the jurisdiction of the
1. Complaint – Complaint Affidavit; court both as to the amount and the nature thereof, except that in an
2. Answer – Counter Affidavit; original action before the Regional Trial Court, the counter-claim may be
3. Reply – Rejoinder; considered compulsory regardless of the amount.
4. Reply to a Rejoinder – Sur Rejoinder.
The criteria or tests that may be used in determining whether a
But the above are administrative in nature, because they are not in filed in counterclaim is compulsory or permissive, summarized as follows:
court but with the fiscal’s office. After finding probable cause, the fiscal will 1. Are the issues of fact and law raised by the claim and counterclaim
file an information. largely the same?
2. Would res judicata bar a subsequent suit on defendant's claim absent
Exceptions: when may a criminal action be filed directly with the the compulsory counterclaim rule?
court: 3. Will substantially the same evidence support or refute plaintiff's claim as
1. Under Rule 110, Sec. 1 (2), where the penalty for the offense is less than well as defendant's counterclaim?
4 years, two months and one day or that which does not require a 4. Is there any logical relation between the claim and the counterclaim?
preliminary investigation as provided under Rule 112, Sec. 1; (Valencia v. Court of Appeals)
2. When a person is lawfully arrested without a warrant, and the inquest
prosecutor is unavailable, the complaint-affidavit may be filed directly Another test, applied in the more recent case of Quintanilla v. Court of
with the court by the complainant or the peace officer. Appeals, is the "compelling test of compulsoriness" which requires "a
logical relationship between the claim and counterclaim, that is,
COMPLAINT where conducting separate trials of the respective claims of the
parties would entail a substantial duplication of effort and time by
Section 3. Complaint. — The complaint is the pleading alleging the the parties and the court." (Alday vs. CA)
plaintiff's cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint. Jurisdiction: must be with the same court, except when the original action
is with the RTC.
ANSWER
Example: A filed a complaint for sum of money amounting to P150k against
Section 4. Answer. — An answer is a pleading in which a defending party B. B filed a counterclaim in the amount of P500k.
sets forth his defenses.
1. The counterclaim should be dismissed since the jurisdiction thereof is
DEFENSES: NEGATIVE AND AFFIRMATIVE with the RTC and not with the MTC.
2. However, if the original action is P500k and the counterclaim is P150k,
there is no dismissal, since the original action is with the RTC, the latter
Section 5. Defenses. — Defenses may either be negative or affirmative.
may then take cognizance of the counterclaim.
3. The same is true if the counterclaim interposed arises out of an
(a) A negative defense is the specific denial of the material fact or
Employer-Employee relationship, or intracorporate disputes, which
facts alleged in the pleading of the claimant essential to his cause or
should be filed with the NLRC or the Special Commercial Courts,
causes of action.
respectively.

Cesar Nickolai F. Soriano Jr.


16 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 8. Cross-claim. — A cross-claim is any claim by one party The bringing of a third-party defendant is proper if he would be liable to the
against a co-party arising out of the transaction or occurrence that is the plaintiff or to the defendant or both for all or part of the plaintiff's claim against
subject matter either of the original action or of a counterclaim therein. the original defendant, although the third-party defendant's liability arises out
Such cross-claim may include a claim that the party against whom it is of another transaction. The defendant may implead another as third-party
asserted is or may be liable to the cross-claimant for all or part of a claim defendant:
asserted in the action against the cross-claimant. (a) On an allegation of liability of the latter to the defendant for
contribution, indemnity, subrogation or any other relief;
Section 9. Counter-counterclaims and counter-crossclaims. — A (b) On the ground of direct liability of the third-party defendant to the
counter-claim may be asserted against an original counter-claimant. plaintiff; or
(c) The liability of the third-party defendant to both the plaintiff and
A cross-claim may also be filed against an original cross-claimant. the defendant. (ACDC vs. CA)

Counter-claim not raised in the answer: is considered waived under Rule Intra-Corporate Dispute: the summary nature of the
9, Sec. 2. proceedings governed by the Interim Rules, and the allowance of the filing of
third-party complaints is premised on one objective, the expeditious
Rule 9, Section 2. Compulsory counterclaim, or cross- disposition of cases. Moreover, following the rule of liberal interpretation
claim, not set up barred. — A compulsory counterclaim, or a found in the Interim Rules, and taking into consideration the suppletory
cross-claim, not set up shall be barred. application of the Rules of Court under Rule 1, Sec. 2 of the Interim Rules,
the Court finds that a third-party complaint is not, and should not be
Exception to the above rule: Rule 11, Sec. 10: “When a pleader fails to prohibited in controversies governed by the Interim Rules. The logic and
set up a counterclaim or a cross-claim through oversight, inadvertence, or justness of this conclusion are rendered beyond question when it is considered
excusable neglect, or when justice requires, he may, by leave of court, set up that Sy Tiong Shiou and Juanita Tan are not complete strangers to the
the counterclaim or cross-claim by amendment before judgment.” The litigation as in fact they are the moving spirit behind the filing of the principal
counterclaim may be set-up with leave of court through amendment. complaint for accounting and damages against the Spouses Sy. (Sy-Tiong vs.
Sy Chim)
Money Claim: not raised within the time prescribed in estate proceedings
may only be prosecuted as a counter-claim for a case filed by an executor or Section 12. Bringing new parties. — When the presence of parties
administrator against the creditor. other than those to the original action is required for the granting of
complete relief in the determination of a counterclaim or cross-claim, the
REPLY court shall order them to be brought in as defendants, if jurisdiction over
them can be obtained.
Section 10. Reply. — A reply is a pleading, the office or function of which
is to deny, or allege facts in denial or avoidance of new matters alleged by Section 13. Answer to third (fourth, etc.)—party complaint. — A
way of defense in the answer and thereby join or make issue as to such third (fourth, etc.) — party defendant may allege in his answer his
new matters. If a party does not file such reply, all the new matters alleged defenses, counterclaims or cross-claims, including such defenses that the
in the answer are deemed controverted. third (fourth, etc.) — party plaintiff may have against the original plaintiff's
claim. In proper cases, he may also assert a counterclaim against the
If the plaintiff wishes to interpose any claims arising out of the new matters original plaintiff in respect of the latter's claim against the third-party
so alleged, such claims shall be set forth in an amended or supplemental plaintiff.
complaint.
Leave of Court: is not required for counterclaims, either permissive or
When not necessary: when the answer consists only of denials, these are compulsory, even cross-claim. However, a third-party complaint requires
deemed controverted. But if the answer raises or allege facts in denial or leave of court before it is filed.
avoidance, a reply should be filed to specifically deny the same. Denials will
be a matter of evidence and no longer a matter of pleading. Filing Fees: is required to be paid for permissive counter-claims, cross-claims
and third-party complaint, but not in a compulsory counter-claim.
Different from counterclaim: a reply is an answer to an Answer, while the
Answer to a counterclaim is the answer to the claim of defendant. Certification Against Forum Shopping: is required in permissive counter-
claims but not in a compulsory counter-claim, this is because a permissive
Matters raised in the answer is a basis for a new/additional cause of counter-claim is in itself a separate case, unlike a compulsory counter-claim,
action: the plaintiff has the option to file a supplemental complaint rather where the court already acquired jurisdiction over the defendant therein
than a reply to seek additional/new relief not raised in the complaint. (plaintiff in the case).

THIRD PARTY COMPLAINT AND REPLY THERETO Such certification is likewise required for a third-party complaint.

Section 11. Third, (fourth, etc.)—party complaint. — A third (fourth, RULE 7: PARTS OF A PLEADING
etc.) — party complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action, called the third Section 1. Caption. — The caption sets forth the name of the court, the
(fourth, etc.) — party defendant for contribution, indemnity, subrogation title of the action, and the docket number if assigned.
or any other relief, in respect of his opponent's claim.
The title of the action indicates the names of the parties. They shall all be
Purpose: the defendant wants the third-party, in case the former loses the named in the original complaint or petition; but in subsequent pleadings,
case, to contribute, indemnify or subrogate the defendant to the claim. it shall be sufficient if the name of the first party on each side be stated
with an appropriate indication when there are other parties.
Applicability: The test to determine whether the claim for indemnity in a
third-party complaint is, whether it arises out of the same transaction on Their respective participation in the case shall be indicated.
which the plaintiff's claim is based, or the third-party plaintiff's claim, although
arising out of another or different contract or transaction, is connected with Section 2. The body. — The body of the pleading sets forth its
the plaintiff's claim. designation, the allegations of the party's claims or defenses, the relief
prayed for, and the date of the pleading. (n)

Cesar Nickolai F. Soriano Jr.


17 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
(a) Paragraphs. — The allegations in the body of a pleading shall be divided 1. Complaint under the Alternative Dispute Resolution Law;
into paragraphs so numbered to be readily identified, each of which shall 2. Complaint in Ejectment Cases;
contain a statement of a single set of circumstances so far as that can be 3. Complaint in ordinary procedures praying for a provisional remedy;
done with convenience. A paragraph may be referred to by its number in 4. Petition for Review as an appeal;
all succeeding pleadings. (3a) 5. Petition for Certiorari under Rule 65.
(b) Headings. — When two or more causes of action are joined the
statement of the first shall be prefaced by the words "first cause of action,'' Who should verify: the party itself. Otherwise, the case may be dismissed.
of the second by "second cause of action", and so on for the others. If there are more than one, all should verify. If only one signed, it is generally
When one or more paragraphs in the answer are addressed to one of not valid. However, the court, in a number of cases allowed such verification
several causes of action in the complaint, they shall be prefaced by the as substantial compliance if there is commonality of interest.
words "answer to the first cause of action" or "answer to the second cause
of action" and so on; and when one or more paragraphs of the answer are Where the petitioners are immediate relatives, who share a common interest
addressed to several causes of action, they shall be prefaced by words to in the property subject of the action, the fact that only one of the petitioners
that effect. (4) executed the verification or certification of forum shopping will not deter the
(c) Relief. — The pleading shall specify the relief sought, but it may add a court from proceeding with the action. It is deemed substantially complied
general prayer for such further or other relief as may be deemed just or with when one who has ample knowledge to swear to the truth of the
equitable. (3a, R6) allegations in the complaint or petition signs the verification; and when
(d) Date. — Every pleading shall be dated. matters alleged in the petition have been made in good faith or are true and
correct (Medado vs. Heirs of Consing)
Section 3. Signature and address. — Every pleading must be signed
by the party or counsel representing him, stating in either case his address Section 5. Certification against forum shopping. — The plaintiff or
which should not be a post office box. principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification annexed
The signature of counsel constitutes a certificate by him that he has read thereto and simultaneously filed therewith: (a) that he has not theretofore
the pleading; that to the best of his knowledge, information, and belief commenced any action or filed any claim involving the same issues in any
there is good ground to support it; and that it is not interposed for delay. 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
An unsigned pleading produces no legal effect. However, the court may, pending action or claim, a complete statement of the present status
in its discretion, allow such deficiency to be remedied if it shall appear that thereof; and (c) if he should thereafter learn that the same or similar action
the same was due to mere inadvertence and not intended for delay. or claim has been filed or is pending, he shall report that fact within five
Counsel who deliberately files an unsigned pleading, or signs a pleading in (5) days therefrom to the court wherein his aforesaid complaint or
violation of this Rule, or alleges scandalous or indecent matter therein, or initiatory pleading has been filed.
fails promptly report to the court a change of his address, shall be subject
to appropriate disciplinary action. Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be
Signature: all pleadings must be signed by either the party or his counsel. cause for the dismissal of the case without prejudice, unless otherwise
However, once there is a counsel, he must ALWAYS sign. This is because provided, upon motion and after hearing. The submission of a false
notice to the party is not notice to the counsel, but a notice to the counsel is certification or non-compliance with any of the undertakings therein shall
notice to the party. constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party
Lawyer’s Signature: signifies that or his counsel clearly constitute willful and deliberate forum shopping, the
1. he has read the pleading; same shall be ground for summary dismissal with prejudice and shall
2. that to the best of his knowledge, information, and belief there is good constitute direct contempt, as well as a cause for administrative sanctions.
ground to support it; and
3. that it is not interposed for delay. Forum shopping is the act of a party litigant against whom an adverse
judgment has been rendered in one forum seeking and possibly getting a
VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING favorable opinion in another forum, other than by appeal or the special civil
action of certiorari, or the institution of two or more actions or proceedings
Section 4. Verification. — Except when otherwise specifically required grounded on the same cause or supposition that one or the other court would
by law or rule, pleadings need not be under oath, verified or accompanied make a favorable disposition.
by affidavit.
Forum shopping happens when, in the two or more pending cases, there is
A pleading is verified by an affidavit that the affiant has read the pleading identity of parties, identity of rights or causes of action, and identity of reliefs
and that the allegations therein are true and correct of his knowledge and sought. Where the elements of litis pendentia are present, and where
belief. a final judgment in one case will amount to res judicata in the other,
there is forum shopping. (In Re: Reconstitution of Transfer Certificates of
A pleading required to be verified which contains a verification based on Title Nos. 303168 and 303169 and Issuance of Owner’s Duplicate Certificates
"information and belief", or upon "knowledge, information and belief", or of Title In Lieu of Those Lost, Rolando Edward G. Lim cited in the case of
lacks a proper verification, shall be treated as an unsigned pleading. Alma Jose vs. Javellana)

Purpose: the verification requirement is simply intended to secure an Certiorari and Appeal questioning different orders do not constitute
assurance that the allegations in the pleading are true and correct, and not forum shopping: For forum shopping to exist, both actions must involve the
the product of the imagination or a matter of speculation, and that the same transaction, same essential facts and circumstances and must raise
pleading is filed in good faith. (Medado vs. Heirs of Consing) identical causes of action, subject matter and issues. Clearly, it does not exist
where different orders were questioned, two distinct causes of action and
Verification of the party: signifies that the party: issues were raised, and two objectives were sought.
1. has read the pleading; and
2. that the allegations therein are true and correct of his knowledge and The appeal and the petition for certiorari actually sought different objectives.
belief. In his appeal in C.A.-G.R. CV No. 68259, Javellana aimed to undo the RTC’s
erroneous dismissal of Civil Case No. 79-M-97 to clear the way for his judicial
Examples of pleadings required to be verified: demand for specific performance to be tried and determined in due course by
Cesar Nickolai F. Soriano Jr.
18 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
the RTC; but his petition for certiorari had the ostensible objective "to prevent Who should certify in case of multiple parties: the signature of only one
(Priscilla) from developing the subject property and from proceeding with the of the petitioners in the certification against forum shopping substantially
ejectment case until his appeal is finally resolved," as the CA explicitly complied with [the] rules because all the petitioners share a common interest
determined in its decision in C.A.-G.R. SP No. 60455. and invoke a common cause of action or defense. (HLC Construction and
Development Corporation v. Emily Homes Subdivision Homeowners
Nor were the dangers that the adoption of the judicial policy against forum Association)
shopping designed to prevent or to eliminate attendant. The first danger, i.e.,
the multiplicity of suits upon one and the same cause of action, would not Difference of non-compliance between verification and certification:
materialize considering that the appeal was a continuity of Civil Case Verification is a formal requirement, whereas certification against forum
No. 79-M-97, whereas C.A.-G.R. SP No. 60455 dealt with an shopping is a substantial requirement. As such, non-compliance with the
independent ground of alleged grave abuse of discretion amounting former may be corrected by a liberal court through a belated verification.
to lack or excess of jurisdiction on the part of the RTC. The second Whereas non-compliance with the requirement of certification is not
danger, i.e., the unethical malpractice of shopping for a friendly court or judge correctible by amendment.
to ensure a favorable ruling or judgment after not getting it in the appeal,
would not arise because the CA had not yet decided C.A.-G.R. CV No. 68259 Non-Compliance with Forum Shopping Certification:
as of the filing of the petition for certiorari. (Alma Jose vs. Javellana) 1. NO CERTIFICATION: dismissal without prejudice;
2. FALSE CERTIFICATION: dismissal with prejudice; indirect contempt
Forum shopping exists even if one action is for rescission of a of court without prejudice to the administrative or criminal actions;
contract of sale and the other one is for its enforcement: It does not 3. NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS:
even matter that one action is for the enforcement of the parties' agreements, dismissed with prejudice; indirect contempt of court without prejudice to
while the other action is for the rescission thereof. In the similar case the administrative or criminal actions;
of Victronics Computers, Inc. v. RTC, Branch 63, Makati, we discussed: 4. WILLFUL AND DELIBERATE FORUM SHOPPING: summary
dismissal WITH prejudice and shall constitute direct contempt as well as
Civil Case No. 91-2069 actually involves an action for specific cause for administrative sanctions.
performance; it thus upholds the contract and assumes its validity. Civil
Case No. 91-2192, on the other hand, is for the nullification of the THREE WAYS BY WHICH FORUM SHOPPING MAY BE COMMITTED:
contract on the grounds of fraud and vitiated consent. While 1. Multiple cases, all pending, with the same prayer;
ostensibly the cause of action in one is opposite to that in the 2. Multiple cases, based on the same cause of action, with the same prayer,
other, in the final analysis, what is being determined is the and there is a judgment on the merits on one – res judicata;
validity of the contract. x x x Thus, the identity of rights asserted 3. Multiple cases, identical causes of action, varying prayers – splitting
cannot be disputed. Howsoever viewed, it is beyond cavil that cause of action. (Chua vs. Metrobank)
regardless of the decision that would be promulgated in Civil Case No.
91-2069, the same would constitute res judicata on Civil Case No. 91- EXAMPLE; VERIFICATION: “I, pedro santos, is the plaintiff in the above
2192 and vice versa. (emphasis supplied) entitled case. I caused the preparation of the foregoing complaint. I have read
the allegations therein and the same are true and correct of my personal
The test of identity of causes of action lies not in the form of an action knowledge.”
but on whether the same evidence would support and establish the
former and the present causes of action. (Casil vs. CA cited in EXAMPLE: CERTIFICATION: “I, Predo santos, the plaintiff in this case state
Medado vs. Consing) and depose, that I have not filed any other case of this nature before any
court, tribunal, body or agency; that there is no pending case similar to this
Which case should be dismissed: the relevant factors that courts must before any court, tribunal, body or agency; that should I come to know of any
consider when they have to determine which case should be dismissed, given I will inform the honorable court within 5 days from notice thereof.”
the pendency of two actions, to wit:
(1) The date of filing, with preference generally given to the first action filed Writ of Execution: even if the pleading was worded as a “petition”, it is a
to be retained; mere motion which is an incident of the case which does not require a
(2) Whether the action sought to be dismissed was filed merely to pre-empt certification of non-forum shopping. Such certification is required only for
the latter action or to anticipate its filing and lay the basis for its dismissal; initiatory pleadings.
and
(3) Whether the action is the appropriate vehicle for litigating the issues RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
between the parties. (Medado vs. Consing)
Section 1. In general. — Every pleading shall contain in a methodical
Contents of the Certification: and logical form, a plain, concise and direct statement of the ultimate
(a) that he has not theretofore commenced any action or filed any claim facts on which the party pleading relies for his claim or defense, as the
involving the same issues in any court, tribunal or quasi-judicial agency and, case may be, omitting the statement of mere evidentiary facts.
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 If a defense relied on is based on law, the pertinent provisions thereof and
the present status thereof; and their applicability to him shall be clearly and concisely stated.
(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 Evidentiary matters: are not required to be stated in the pleading
to the court wherein his aforesaid complaint or initiatory pleading has been
filed. Malice/intent: can be through general averments, since they cannot be
alleged with particularity because they are conditions of the mind.
Not jurisdictional but mandatory: such that failure to comply with
verification and certification requirements is actionable against the one who Section 2. Alternative causes of action or defenses. — A party may
cause non-compliance. set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
Who should sign for juridical entities: the established rule is that it must causes of action or defenses. When two or more statements are made in
be executed by the plaintiff or any of the principal parties and not by counsel. the alternative and one of them if made independently would be sufficient,
(Commission on Appointments vs. Paler) the pleading is not made insufficient by the insufficiency of one or more of
the alternative statements.

Cesar Nickolai F. Soriano Jr.


19 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 3. Conditions precedent. — In any pleading a general formal requisites required by law, such as a seal, an acknowledgment, or
averment of the performance or occurrence of all conditions precedent revenue stamp, which it lacks, are waived by him. When the law makes use
shall be sufficient. of the phrase 'genuineness and due execution of the instrument' it means
nothing more than that the instrument is not spurious, counterfeit, or of
Section 4. Capacity. — Facts showing the capacity of a party to sue or different import on its face from the one executed.” (Benguet Exploration Inc.
be sued or the authority of a party to sue or be sued in a representative vs. CA)
capacity or the legal existence of an organized association of person that
is made a party, must be averred. A party desiring to raise an issue as to The admission covers:
the legal existence of any party or the capacity of any party to sue or be 1. Existence of the document;
sued in a representative capacity, shall do so by specific denial, which shall 2. It was properly executed;
include such supporting particulars as are peculiarly within the pleader's 3. Signatures therein are authentic.
knowledge.
As such, during trial, the one presenting the document need not authenticate
Section 5. Fraud, mistake, condition of the mind. — In all averments the document since its genuineness and due execution have been admitted.
of fraud or mistake the circumstances constituting fraud or mistake must
be stated with particularity. Malice, intent, knowledge, or other condition Exceptions:
of the mind of a person may be averred generally. 1. When the adverse party does not appear to be a party to the instrument;
or
Section 6. Judgment. — In pleading a judgment or decision of a 2. When compliance with an order for an inspection of the original
domestic or foreign court, judicial or quasi-judicial tribunal, or of a board instrument is refused.
or officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it. Section 9. Official document or act. — In pleading an official document
or official act, it is sufficient to aver that the document was issued or the
ACTIONABLE DOCUMENTS act done in compliance with law.

Section 7. Action or defense based on document. — Whenever an SPECIFIC DENIAL


action or defense is based upon a written instrument or document, the
substance of such instrument or document shall be set forth in the Section 10. Specific denial. — A defendant must specify each material
pleading, and the original or a copy thereof shall be attached to the allegation of fact the truth of which he does not admit and, whenever
pleading as an exhibit, which shall be deemed to be a part of the pleading, practicable, shall set forth the substance of the matters upon which he
or said copy may with like effect be set forth in the pleading. relies to support his denial. Where a defendant desires to deny only a part
of an averment, he shall specify so much of it as is true and material and
Actionable documents: not all documents are actionable, only those upon shall deny only the remainder. Where a defendant is without knowledge
which an action or a defense is based, e.g., promissory note as a basis for or information sufficient to form a belief as to the truth of a material
collection of a sum of money. averment made to the complaint, he shall so state, and this shall have the
effect of a denial.
How to use:
1. State the substance of the document in the pleading, in verbatim; and Purpose: of requiring respondents to make a specific denial is to make them
attach a copy of the document in the pleading; disclose facts which will disprove the allegations of petitioner at the trial,
2. State the text of the document, in verbatim, in the pleading. Attaching a together with the matters they rely upon in support of such denial. Our
copy of the document is not stated in the provision for this mode but in jurisdiction adheres to this rule to avoid and prevent unnecessary expenses
practice, attaching a copy is still made. and waste of time by compelling both parties to lay their cards on the table,
thus reducing the controversy to its true terms. (Republic vs. Sandiganbayan)
Section 8. How to contest such documents. — When an action or
defense is founded upon a written instrument, copied in or attached to the Three Kinds:
corresponding pleading as provided in the preceding section, the 1. Specific Denial – specifying the allegation of fact which is not admitted
genuineness and due execution of the instrument shall be deemed and setting forth the substance of the matters upon which the denial is
admitted unless the adverse party, under oath specifically denies them, based;
and sets forth what he claims to be the facts, but the requirement of an 2. Qualified Denial – denying only a part and specifying which parts are
oath does not apply when the adverse party does not appear to be a party denied and setting forth the substance of matters upon which the denial
to the instrument or when compliance with an order for an inspection of is based and specifying matters which are admitted;
the original instrument is refused. 3. Lack of knowledge – the party must so state and such shall have the
effect of denial.
Denial and effect of failure thereof: denial must be under oath, i.e., the
defendant did not sign the document or that his signature was forged. However, lack of knowledge is NOT applicable to matters which are
within the personal knowledge of the party; the denial should have
Otherwise, there is an admission as to the genuineness and due execution. In
general, answering an initiatory pleading, does not require a verification. But positively stated how it was that they were supposedly ignorant of the
facts alleged. Otherwise, the same may be considered a negative
if the complaint made use of actionable documents, the answer must be under
oath, i.e., it must be verified. If the actionable document is in an Answer, the pregnant. (see Republic vs. Sandiganbayan)
reply should be verified to deny specifically the document under oath.
NEGATIVE PREGNANT: a denial pregnant with admission. Example: “We
don’t have 11 deposit accounts in Switzerland” denies not having 11 deposit
The truth as to the statements therein may still be contested, since this is not
part of the genuineness and due execution of the document. What is being accounts but admits that there may be more or less than 11, and thus admits
that there are swiss accounts. (Republic vs. Sandiganbayan)
admitted is that the document is not authentic and not spurious.

The admission of the due execution and genuineness of a document simply Simple declarative statements; NO negative pregnant: “B specifically denies
means that "the party whose signature it bears admits that he signed it or that he borrowed P100k from A” – there is no negative pregnant because the
that it was signed by another for him with his authority; that at the time it allegation is a simple declarative statement.
was signed it was in words and figures exactly as set out in the pleading of
the party relying upon it; that the document was delivered; and that any Compound complex sentence: “B specifically denies that he borrowed P100k
when the latter was on his way to the market” – there is denial as to WHEN
Cesar Nickolai F. Soriano Jr.
20 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
B borrowed from A, but there is admission that B borrowed money from A on be set aside on such terms and conditions as the judge may impose in the
some other time. interest of justice.
(c) Effect of partial default. — When a pleading asserting a claim states a
Denial by lack of knowledge: when the fact alleged is within the knowledge common cause of action against several defending parties, some of whom
of the defendant, the same is considered a negative pregnant. (see Republic answer and the others fail to do so, the court shall try the case against all
vs. Sandiganbayan) upon the answers thus filed and render judgment upon the evidence
presented.
Failure to specifically deny: the matters not specifically denied are deemed (d) Extent of relief to be awarded. — A judgment rendered against a party
admitted under Section 11, to wit: in default shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.
Section 11. Allegations not specifically denied deemed (e) Where no defaults allowed. — If the defending party in an action for
admitted. — Material averment in the complaint, other than those annulment or declaration of nullity of marriage or for legal separation fails
as to the amount of unliquidated damages, shall be deemed admitted to answer, the court shall order the prosecuting attorney to investigate
when not specifically denied. Allegations of usury in a complaint to whether or not a collusion between the parties exists, and if there is no
recover usurious interest are deemed admitted if not denied under collusion, to intervene for the State in order to see to it that the evidence
oath. submitted is not fabricated.

Section 12. Striking out of pleading or matter contained therein. Summary Procedures: motion to declare party in default is a prohibited
— Upon motion made by a party before responding to a pleading or, if no pleading in summary procedures.
responsive pleading is permitted by these Rules, upon motion made by a
party within twenty (20) days after the service of the pleading upon him, Criminal Cases: Court acquires jurisdiction over the accused through arrest
or upon the court's own initiative at any time, the court may order any (Rule 113), not arraignment (which is a mere compliance with the due process
pleading to be stricken out or that any sham or false, redundant, requirement that the accused must be informed).
immaterial, impertinent, or scandalous matter be stricken out therefrom.
Motion: a motion is required. Thus, the court cannot declare a party in
RULE 9: EFFECT OF FAILURE TO PLEAD default motu propio, only through a motion.

WAIVER OF DEFENSES AND OBJECTIONS The motion is a litigated motion, as such, Sections 4, 5 and 6 of Rule 15 must
be complied with (i.e., in writing, set for hearing and a copy of the motion
Section 1. Defenses and objections not pleaded. — Defenses and must be served with the adverse party).
objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the However, it is different from an ordinary motion, since it is required to be
evidence on record that the court has no jurisdiction over the subject verified; and must show fraud, accident, mistake or excusable neglect, and
matter, that there is another action pending between the same parties for meritorious defenses. The allegations of (1) fraud, accident, mistake or
the same cause, or that the action is barred by a prior judgment or by excusable neglect, and (2) of meritorious defenses must concur. (Banco de
statute of limitations, the court shall dismiss the claim. Oro-EPCI vs. Transipek)

Residual Prerogatives is the authority of the appellate court to dismiss a Judge’s actions once granted:
case motu proprio on the following grounds: 1. Judgment based on the pleading;
1. Lack of jurisdiction 2. Presentation of evidence by the plaintiff ex-parte.
2. Res judicata
3. Litis pendentia; Defendant entitled to notice of subsequent proceedings: once
4. Prescription. declared in default, the defendant is still entitled to notice of subsequent
proceedings.
Also in cases governed by the Rules on Summary Procedure. Other grounds
are found under Rule 17, Sec. 3: However, if plaintiff did not move for declaration of default but only for ex
1. Failure of the plaintiff to appear on the date of the presentation of his parte presentation of evidence, defendant is not entitled to notice of
evidence in chief for a unreasonable period of time; subsequent proceedings under Sec. 3(a): Even if the order of the court did
2. Failure of the plaintiff to prosecute his action for an unreasonable length not limit itself from permitting the movant to presenting its evidence ex parte
of time; but in effect the court issued an order of default. This is because the court
3. Failure of the plaintiff to comply with an order of the court. could not validly do that as an order of default can be made only upon motion
of the claiming party. Since no motion to declare petitioner in default was
DEFAULT filed, no default order should have been issued.

Section 3. Default; declaration of. — If the defending party fails to Thus, the defendant cannot reasonably demand that copies of orders and
answer within the time allowed therefor, the court shall, upon motion of processes be furnished him. (Santos vs. PNOC Exploration Corporation)
the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. Thereupon, the court shall Remedy: is to file a motion to set aside/lift the order of default, which must
proceed to render judgment granting the claimant such relief as his (1) be grounded upon: Fraud, Mistake, Accident or Excusable Negligence and
pleading may warrant, unless the court in its discretion requires the (2) allege that he has a meritorious defense.
claimant to submit evidence. Such reception of evidence may be delegated
to the clerk of court. A Motion for Reconsideration is improper. (Banco de Oro-EPCI vs. Transipek)

(a) Effect of order of default. — A party in default shall be entitled to notice Partial Default: when there is a common cause of action against several
of subsequent proceedings but not to take part in the trial. defendants and only one or not all files an Answer, those who failed to file an
(b) Relief from order of default. — A party declared in default may at any answer may be declared in default.
time after notice thereof and before judgment file a motion under oath to
set aside the order of default upon proper showing that his failure to However, defenses raised by those who filed an Answer which is applicable
answer was due to fraud, accident, mistake or excusable negligence and to the other co-defendants, may likewise benefit them.
that he has a meritorious defense. In such case, the order of default may
This may also arise under Rule 70 of Sec. 7.
Cesar Nickolai F. Soriano Jr.
21 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Amendment that substantially alters the cause of action allowed:
Plaintiff’s default: can happen on permissive counterclaims upon which no The amendment of the Rule now allows amendments, even if the amendment
answer was filed not in compulsory counterclaims where such claim also arose substantially alters the cause of action or defense, such amendment could still
from the action filed by the plaintiff. Note that the effect of being declared in be allowed when it is sought to serve the higher interest of substantial justice;
default is not being able to participate in the trial of the said case. As such, prevent delay; and secure a just, speedy and inexpensive disposition of
even if the plaintiff is declared in default as to the compulsory counterclaim, actions and proceedings. (Lisam Enterprises, Inc. vs. BDO Unibank Inc., and
he is not totally excluded from the compulsory counterclaim since what he will Ching Tiu vs. PBCOM)
present as evidence for his cause of action will necessarily negate the
compulsory counterclaim. KINDS OF AMENDMENTS:

Judgment by default: must always be preceded by an order of default. 1. As to nature:


Exception: Sec. 3, par. C of Rule 29, which provides: a. Formal:

Section 3. Other consequences. — If any party or an officer or Section 4. Formal amendments. — A defect in the designation
managing agent of a party refuses to obey an order made under of the parties and other clearly clerical or typographical errors may
section 1 of this Rule requiring him to answer designated questions, be summarily corrected by the court at any stage of the action, at
or an order under Rule 27 to produce any document or other thing its initiative or on motion, provided no prejudice is caused thereby
for inspection, copying, or photographing or to permit it to be done, to the adverse party.
or to permit entry upon land or other property or an order made
under Rule 28 requiring him to submit to a physical or mental b. Substantial – any other amendment not falling within the above
examination, the court may make such orders in regard to the refusal definition is considered substantial.
as are just, and among others the following:
xxx 2. As to whether it is a matter of right:
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or a. Amendment as a matter of right
proceeding or any part thereof, or rendering a judgment by
default against the disobedient party; and Section 2. Amendments as a matter of right. — A party may
xxx amend his pleading once as a matter of right at any time before a
responsive pleading is served or, in the case of a reply, at any time
Remedy against a judgment by default: while the remedy against an within ten (10) days after it is served.
order of default is only a motion to lift or set aside the same, in a judgment
by default, all remedies against a judgment are available. Motion to dismiss already filed: The right granted to the plaintiff
under procedural law to amend the complaint before an answer has been
Partial Default: when only one or two, but not all, of the defendants filed served is not precluded by the filing of a motion to dismiss or any other
an answer. In this case, the plaintiff may have those who did not answer be proceeding contesting its sufficiency. (Remington Industrial Sales
declared in default, but he shall not be allowed to present evidence ex-parte, Corporation vs. CA)
since there are defendants who were not declared in default. Moreover, the
defendants may be subject to a common defense. b. Amendment by leave of court

General Order of Default: applies to actions in rem where the summons Section 3. Amendments by leave of court. — Except as
are served by publication. provided in the next preceding section, substantial amendments
may be made only upon leave of court. But such leave may be
“As in Default”: in this situation, the defendant received notice to appear in refused if it appears to the court that the motion was made with
the pre-trial but failed to do so or failed to file a pre-trial brief which has the intent to delay. Orders of the court upon the matters provided in
same effect. The court will allow the plaintiff to present evidence ex-parte. this section shall be made upon motion filed in court, and after
The remedy of the defendant is to file a motion for reconsideration showing notice to the adverse party, and an opportunity to be heard.
that his failure to file a pre-trial brief was due to fraud, accident, mistake or
excusable neglect. When allowed:

Not being represented by counsel: is not a valid and meritorious defense to AMENDMENT TO CONFORM TO OR AUTHORIZE PRESENTATION OF
set aside to order allowing the adverse party to present evidence ex parte. EVIDENCE:
(Saguid vs. CA)
Section 5. Amendment to conform to or authorize presentation of
IV. RULES 10 to 14 evidence. — When issues not raised by the pleadings are tried with the
express or implied consent of the parties they shall be treated in all
RULE 10: Amended and Supplemental Pleadings respects as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to the
Section 1. Amendments in general. — Pleadings may be amended by evidence and to raise these issues may be made upon motion of any party
adding or striking out an allegation or the name of any party, or by at any time, even after judgment; but failure to amend does not affect the
correcting a mistake in the name of a party or a mistaken or inadequate result of the trial of these issues. If evidence is objected to at the trial on
allegation or description in any other respect, so that the actual merits of the ground that it is not within the issues made by the pleadings, the court
the controversy may speedily be determined, without regard to may allow the pleadings to be amended and shall do so with liberality if
technicalities, and in the most expeditious and inexpensive manner. the presentation of the merits of the action and the ends of substantial
justice will be subserved thereby. The court may grant a continuance to
When amendment? When supplemental?: depending on WHEN the enable the amendment to be made.
event/fact/information to be included occurred. If it happened prior to the
filing of the pleading or already available prior to filing, it shall be included Applicability: when there is a variance between that which was alleged in
therein through amendment. Otherwise, facts that occurred after filing are the pleadings and that which was proven. Example: the allegation sought to
included in the case through supplements. recover P700,000; but the evidence was able to prove that the claim is
P1,000,000. In this case, the Rules allow an amendment to conform with the
evidence presented.
Cesar Nickolai F. Soriano Jr.
22 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Purpose: so that for purposes of appeal, it is easier to refer to the pleadings. Section 3. Answer to amended complaint. — When the plaintiff files
It is not an indispensable requirement for a valid judgment. an amended complaint as a matter of right, the defendant shall answer
the same within fifteen (15) days after being served with a copy thereof.
No amendment was made: the judgment based on the evidence presented
remains to be valid. Where its filing is not a matter of right, the defendant shall answer the
amended complaint within ten (l0) days from notice of the order admitting
Objection: if there is an objection or opposition from the adverse party, it is the same. An answer earlier filed may serve as the answer to the amended
upon the discretion of the court to grant or deny the same. Nevertheless, the complaint if no new answer is filed.
judgment based on the evidence presented is still valid.
This Rule shall apply to the answer to an amended counterclaim, amended
AMENDMENTS IN CIVIL PROCEDURES vs. CRIMINAL PROCEDURE: cross-claim, amended third (fourth, etc.)—party complaint, and amended
1. In criminal procedures, it is not amendment and supplements, it is complaint-in-intervention.
amendment and substitution.
2. What is being amended is the information. Section 4. Answer to counterclaim or cross-claim. — A counterclaim
3. It is a matter of right before arraignment, after which, it is done only with or cross-claim must be answered within ten (10) days from service.
leave of court. However, if the amendment will result in downgrading a charge
or to exclude one of the accused, it is to be done with leave of court, even Section 5. Answer to third (fourth, etc.)-party complaint. — The
before arraignment. time to answer a third (fourth, etc.)—party complaint shall be governed by
the same rule as the answer to the complaint.
Mere error in title of information: such that if the allegations already contained
aggravating circumstances that would qualify homicide to murder, would only Section 6. Reply. — A reply may be filed within ten (10) days from
make the amendment of the information from homicide to murder, formal service of the pleading responded to.
instead of substantial.
Section 7. Answer to supplemental complaint. — A supplemental
Substitution: discards the earlier filed information and substitutes it with
complaint may be answered within ten (10) days from notice of the order
another. While an amendment does not call for another preliminary
admitting the same, unless a different period is fixed by the court. The
investigation, the same is not true with substitution, where another
answer to the complaint shall serve as the answer to the supplemental
preliminary investigation is required. Moreover, a substantial amendment of
complaint if no new or supplemental answer is filed.
the Information would likewise require a new preliminary investigation.
Section 8. Existing counterclaim or cross-claim. — A compulsory
Double jeopardy: substitution is not allowed if the accused will be placed twice
counterclaim or a cross-claim that a defending party has at the time he
in jeopardy.
files his answer shall be contained therein.
SUPPLEMENTAL PLEADINGS
Section 9. Counterclaim or cross-claim arising after answer. — A
Section 6. Supplemental pleadings. — Upon motion of a party the counterclaim or a cross-claim which either matured or was acquired by a
court may, upon reasonable notice and upon such terms as are just, permit party after serving his pleading may, with the permission of the court, be
him to serve a supplemental pleading setting forth transactions, presented as a counterclaim or a cross-claim by supplemental pleading
occurrences or events which have happened since the date of the pleading before judgment.
sought to be supplemented. The adverse party may plead thereto within
ten (10) days from notice of the order admitting the supplemental Section 10. Omitted counterclaim or cross-claim. — When a pleader
pleading. fails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may, by
Section 7. Filing of amended pleadings. — When any pleading is leave of court, set up the counterclaim or cross-claim by amendment
amended, a new copy of the entire pleading, incorporating the before judgment.
amendments, which shall be indicated by appropriate marks, shall be filed.
Section 11. Extension of time to plead. — Upon motion and on such
Section 8. Effect of amended pleadings. — An amended pleading terms as may be just, the court may extend the time to plead provided in
supersedes the pleading that it amends. However, admissions in these Rules.
superseded pleadings may be received in evidence against the pleader,
and claims or defenses alleged therein not incorporated in the amended The court may also, upon like terms, allow an answer or other pleading to
pleading shall be deemed waived. be filed after the time fixed by these Rules.

EFFECT ON ALLEGATIONS: allegations in the amended pleading are RULE 12: BILL OF PARTICULARS
deemed extrajudicial admissions.
Section 1. When applied for; purpose. — Before responding to a
RULE 11: When to File Responsive Pleadings pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averted with sufficient definiteness
Section 1. Answer to the complaint. — The defendant shall file his or particularity to enable him properly to prepare his responsive pleading.
answer to the complaint within fifteen (15) days after service of summons, If the pleading is a reply, the motion must be filed within ten (10) days
unless a different period is fixed by the court. from service thereof. Such motion shall point out the defects complained
of, the paragraphs wherein they are contained, and the details desired.
Summary Proceedings: the period is 10 days.
Inherent right to extend the period for filing an answer: when one
receives a copy of summons and compliant, he must comply with the rule
Section 2. Answer of a defendant foreign private juridical entity.
requiring him to answer within a specified period. But the Rules provide him
— Where the defendant is a foreign private juridical entity and service of
an inherent right to extend a period, i.e., to file a motion for bill of particulars.
summons is made on the government official designated by law to receive
The extension is the period which has not been consumed yet.
the same, the answer shall be filed within thirty (30) days after receipt of
summons by such entity.

Cesar Nickolai F. Soriano Jr.


23 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Example: B received a complaint on January 10, so he has until January 25 to Service is the act of providing a party with a copy of the pleading
file an Answer. If he files a Motion for Bill of Particulars on January 15, he has or paper concerned. If any party has appeared by counsel, service upon
already consumed the 5 days. So if his Motion is denied, he has only 10 days him shall be made upon his counsel or one of them, unless service upon
within which to file his Answer. the party himself is ordered by the court. Where one counsel appears for
several parties, he shall only be entitled to one copy of any paper served
Fresh Period Rule: does not apply to a motion for bill of particulars. upon him by the opposite side.

Bill of Particulars in Civil vs. Criminal Proceedings (Rule 116, Sec. Which comes first? In initiatory pleadings, filing comes first, then service.
9): It is the court that serves the initiatory pleading to the other party together
with the summons. Thereafter, service comes first before filing, e.g., Answer,
BOP IN CIVIL CASES BOP IN CRIMINAL CASES where before filing with the Court, there must be proof that the same has
Anytime before responsive pleading Before arraignment been served upon the adverse party.
is filed
The purpose is for the defendant to The purpose is to allow the accused Other than an initiatory pleading, processes that emanate from the court are
properly prepare his responsive to properly plead and prepare for first filed then served, e.g., Judgments, resolutions or orders.
pleading trial.
To whom should service be made: the service should be made generally
Remedy against order denying or granting Bill of Particulars: is a to the counsel of record, except when service should also be given to the
motion for reconsideration or a petition for certiorari being an interlocutory party, such as a notice of pre-trial, notice of promulgation of judgment,
order.
Section 3. Manner of filing. — The filing of pleadings, appearances,
Motion granted but the plaintiff failed to file a Bill of Particulars: motions, notices, orders, judgments and all other papers shall be made by
1. The case may be dismissed for failure of the plaintiff to comply with an presenting the original copies thereof, plainly indicated as such, personally
order of the court (Rule 17, Sec. 3); to the clerk of court or by sending them by registered mail. In the first
2. The pleading may be stricken off or portions thereof, as provided under case, the clerk of court shall endorse on the pleading the date and hour of
Sec. 4: filing. In the second case, the date of the mailing of motions, pleadings,
or any other papers or payments or deposits, as shown by the post office
Section 4. Effect of non-compliance. — If the order is not stamp on the envelope or the registry receipt, shall be considered as the
obeyed, or in case of insufficient compliance therewith, the court date of their filing, payment, or deposit in court. The envelope shall be
may order the striking out of the pleading or the portions thereof to attached to the record of the case.
which the order was directed or make such other order as it deems
just. MANNER OF FILING: Filing may either be done
1. Personally
Prohibited Pleading: in the following proceedings: 2. Registered mail.
1. Summary Procedures;
2. Small Claims; There is no filing by ordinary mail. In filing through registered mail, the date
3. Intra-corporate disputes. of filing is the post office stamp on the envelope or the registry receipt.

Section 2. Action by the court. — Upon the filing of the motion, the The reason why ordinary mail is not allowed in filing is because of the
clerk of court must immediately bring it to the attention of the court which prescriptive period. Where in service, the adverse party may contest the
may either deny or grant it outright, or allow the parties the opportunity propriety or impropriety of such when made through ordinary mail, the same
to be heard. is not necessarily true with regards the court.

Section 3. Compliance with order. — If the motion is granted, either To whom filed: “Clerk of Court” should be understood as the CHIEF Clerk of
in whole or in part, the compliance therewith must be effected within ten Court and not the Branch Clerk of Court.
(10) days from notice of the order, unless a different period is fixed by the
court. The bill of particulars or a more definite statement ordered by the Section 4. Papers required to be filed and served. — Every
court may be filed either in a separate or in an amended pleading, serving judgment, resolution, order, pleading subsequent to the complaint, written
a copy thereof on the adverse party. motion, notice, appearance, demand, offer of judgment or similar papers
shall be filed with the court, and served upon the parties affected.
Section 5. Stay of period to file responsive pleading. — After service
of the bill of particulars or of a more definite pleading, or after notice of Section 5. Modes of service. — Service of pleadings motions, notices,
denial of his motion, the moving party may file his responsive pleading orders, judgments and other papers shall be made either personally or by
within the period to which he was entitled at the time of filing his motion, mail.
which shall not be less than five (5) days in any event.
MODES OF SERVICE: may be made through:
Section 6. Bill a part of pleading. — A bill of particulars becomes part 1. Personal Service
of the pleading for which it is intended.
Section 6. Personal service. — Service of the papers may be made by
RULE 13: Filing and Service of Pleadings, Judgments and Other delivering personally a copy to the party or his counsel, or by leaving it
Papers in his office with his clerk or with a person having charge thereof. If no
person is found in his office, or his office is not known, or he has no
Section 1. Coverage. — This Rule shall govern the filing of all pleadings office, then by leaving the copy, between the hours of eight in the
and other papers, as well as the service thereof, except those for which a morning and six in the evening, at the party's or counsel's residence, if
different mode of service is prescribed. known, with a person of sufficient age and discretion then residing
therein.
Section 2. Filing and service, defined. — Filing is the act of
presenting the pleading or other paper to the clerk of court. Service to the person of the defendant: under Rule 14 is only one of the
modes in personal service under Rule 13. Under this provision, personal
service may be done in the following instances:

Cesar Nickolai F. Soriano Jr.


24 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
a. Delivering personally a copy to the party or his counsel; 2. Service by ordinary mail – upon expiration of 10 days after mailing,
b. Leaving it in his office with his clerk or with a person having charge unless the court otherwise provides;
thereof; 3. Service by registered mail – upon actual receipt of the addressee or 5
c. If no person is found in his office, or his office is not known, or he days from the date he received the first notice of the postmaster,
has no office, by leaving a copy between 8am to 6pm at the party’s whichever is earlier.
or counsel’s residence.
Completeness of filing:
Note that the other two (b and c) are considered substituted service and must 1. Personal filing – upon actual delivery;
comply with the requirements under Rule 14 to be valid. 2. Filing by registered mail – the posting date or the date on the post office
stamp.
2. Substituted Service
Section 11. Priorities in modes of service and filing. — Whenever
Section 8. Substituted service. — If service of pleadings, motions, practicable, the service and filing of pleadings and other papers shall be
notices, resolutions, orders and other papers cannot be made under the done personally. Except with respect to papers emanating from the court,
two preceding sections, the office and place of residence of the party or a resort to other modes must be accompanied by a written explanation
his counsel being unknown, service may be made by delivering the copy why the service or filing was not done personally. A violation of this
to the clerk of court, with proof of failure of both personal service and Rule may be cause to consider the paper as not filed.
service by mail. The service is complete at the time of such delivery.
Improper Mode: personal service is preferred over any other modes. If
Substituted Service is resorted to when personal service and service by other modes are resorted to, you have to include the reason or provide an
registered mail or ordinary mail fails. It is done by filing with the CLERK OF explanation, except by reason of convenience or practicality.
COURT with proof of failure of the other modes.
PROOF OF FILING AND SERVICE
This is different in substituted service of summons where the defendant
cannot be served within a reasonable time as provided in the preceding Section 12. Proof of filing. — The filing of a pleading or paper shall be
section, service may be effected (a) by leaving copies of the summons at the proved by its existence in the record of the case. If it is not in the record,
defendant's residence with some person of suitable age and discretion then but is claimed to have been filed personally, the filing shall be proved by
residing therein, or (b) by leaving the copies at defendant's office or regular the written or stamped acknowledgment of its filing by the clerk of court
place of business with some competent person in charge thereof. on a copy of the same; if filed by registered mail, by the registry receipt
and by the affidavit of the person who did the mailing, containing a full
Moreover, this mode of service is not allowed for judgments, final orders or statement of the date and place of depositing the mail in the post office in
resolutions under Section 9. a sealed envelope addressed to the court, with postage fully prepaid, and
with instructions to the postmaster to return the mail to the sender after
3. By mail (registered, or if none, ordinary) ten (10) days if not delivered.

Section 7. Service by mail. — Service by registered mail shall be made Section 13. Proof of Service. — Proof of personal service shall consist
by depositing the copy in the post office in a sealed envelope, plainly of a written admission of the party served, or the official return of the
addressed to the party or his counsel at his office, if known, otherwise at server, or the affidavit of the party serving, containing a full statement of
his residence, if known, with postage fully prepaid, and with instructions the date, place and manner of service. If the service is by ordinary mail,
to the postmaster to return the mail to the sender after ten (10) days if proof thereof shall consist of an affidavit of the person mailing of facts
undelivered. If no registry service is available in the locality of either the showing compliance with section 7 of this Rule. If service is made by
senders or the addressee, service may be done by ordinary mail. registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be filed
SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS immediately upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice given by the
Section 9. Service of judgments, final orders, or resolutions. — postmaster to the addressee.
Judgments, final orders or resolutions shall be served either personally or
by registered mail. When a party summoned by publication has failed to Proof of Filing and Service
appear in the action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the expense of the Mode Filing Service
prevailing party. Personal Existence in the records of Written admission of the
the case; otherwise, by the party served, or the official
Mode of service: written or stamped return of the server, or the
1. Personal or through registered mail. Note that there is no acknowledgment of its filing affidavit of the party
substituted service of judgments, final orders or resolutions. If a party by the clerk of court on a serving.
cannot serve the same through the earlier modes, it may be made copy of the same
through publication, the duration of which may be fixed by the court. Registered Registry receipt and by the Affidavit and the registry
2. Publication – when a party was summoned by publication. Mail affidavit of the person who receipt issued by the mailing
did the mailing office.
Why Publish? In order for the prescriptive period to begin to run and Ordinary N/A Affidavit of the person
accordingly, in order to execute. Mail mailing of facts

Section 10. Completeness of service. — Personal service is complete Affidavit of sender: note that it is now required that the party furnish an
upon actual delivery. Service by ordinary mail is complete upon the affidavit of the sender as proof of service. This is a ground for dismissal under
expiration of ten (10) days after mailing, unless the court otherwise Rule 66.
provides. Service by registered mail is complete upon actual receipt by the
addressee, or after five (5) days from the date he received the first notice Section 14. Notice of lis pendens. — In an action affecting the title or
of the postmaster, whichever date is earlier. the right of possession of real property, the plaintiff and the defendant,
when affirmative relief is claimed in his answer, may record in the office
Completeness of service: of the registry of deeds of the province in which the property is
1. Personal service – upon actual delivery;
Cesar Nickolai F. Soriano Jr.
25 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
situated notice of the pendency of the action. Said notice shall Purpose: the purpose of serving summons is to acquire jurisdiction over the
contain the names of the parties and the object of the action or defense, person of the defendant. The other mode is by voluntary appearance under
and a description of the property in that province affected thereby. Only Sec. 20.
from the time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed to have Mode of Service of Summons can be summarized as follows:
constructive notice of the pendency of the action, and only of its pendency 1. Natural Person; Defendant is in the Philippines:
against the parties designated by their real names. a. Service on the person of the defendant;
b. Substituted Service
The notice of lis pendens hereinabove mentioned may be cancelled only
upon order of the court, after proper showing that the notice is for the If identity is unknown or known but whereabouts are unknown –
purpose of molesting the adverse party, or that it is not necessary to publication, even if the case is in personam.
protect the rights of the rights of the party who caused it to be recorded.
If temporarily out of the Philippines – similar to non-resident. However,
Lis Pendens: is a notice that the property is subject of a pending litigation. since the person continues to be a resident of the Philippines, the
Supreme Court has allowed a substituted service of summons.
Purpose: so that any person who transacts with the said property will put to
notice of the litigation. 2. Non-resident natural person; action (a) affects personal status of the
plaintiff; (b) subject of which is property within the Philippines, service,
How: by filing a written memorandum, no necessity of an order of the court; with leave of court, may be made by:
the Notice should indicate the institution of the action concerning the subject a. Service upon the person of the defendant;
property; the court where it is pending; the date of commencement of the b. Publication in the Philippines with service by registered mail in his
action; attaching a copy of the complaint or petition. (PD 1529) last known address;
c. Other manner the court may deem sufficient.
However, even if a court order is not necessary for a notice of lis pendens, a
court order is required to remove/cancel the same, such as when it was only 3. Minor – upon the person of the minor and his guardian.
annotated to molest the adverse party. 4. Prisoner – service shall be made by the warden or the one in charge of
the penal facility;
Who: there is nothing in the rules that a party seeking annotation of the 5. Domestic Juridical Entity – upon the entity’s (1) president, (2) managing
notice must be the owner thereof. The rule merely requires an affirmative partner, (3) general manager, (4) corporate secretary, (5) treasurer, or
relief. (6) in-house counsel.
6. Entity without juridical personality – any one of the persons constituting
Effect: The notice of lis pendens does not create a right or lien over the the association or the person in charge of the office or place of business.
property or encumbrance thereon. 7. Foreign Private Juridical Entity – (1) upon its resident agent; (2) on the
government official designated by law to that effect (e.g., DFA); (3) any
Reinstatement: in the event that the RTC cancelled the lis pendens, the CA of its officers or agents within the Philippines; (4) publication in the place
may validly reinstate the lis pendens. where it is conducting business; (5) fax, as long as proof of submission
can be generated; (6) other modes as may be determined by the court.
Mortgage: the auction retroacts to the annotation of the mortgage, putting 8. Public Corporations – (1) if Republic of the Philippines – Solicitor General;
the mortgage beyond any intervening lis pendens or attachment. However, (2) Local Government Units – Executive Head or such other officer(s) as
for as long as there is lis pendens, it doesn’t mean that if there is cancellation the law or the court may direct.
of title by reason of a sale, the lis pendens is erased. The lis pendens is carried 9. Government-owned or –controlled corporation – if created by a charter
on to the new title. and no provision as to service of summons, or if created by registration
with the SEC – as if domestic juridical entity.
Applicability: it applies to the following:
1. Action to recover real property; Escheat of a dormant account: the law provides that the summons shall
2. Action for quieting of title; be served upon the President, Treasurer or Managing Officer of the Bank and
3. Action to remove cloud; by publication for the depositor.
4. Partition;
5. Any other proceeding of any kind directly affecting title to the land, or No individual notice to the depositors is required since escheat proceedings
the use or the occupation thereof or the buildings thereon. are action in rem whereby an action is brought against the thing itself, i.e.,
the dormant deposits.
It does not apply to attachment, levies of execution or proceedings for the
probate of the will. Moreover, it has no application in a proceeding in which Forfeiture proceedings: service may be made by publication since it is
the only object sought is recovery of money judgment or sum of money. As likewise an action in rem.
such, if the subject is not recovery of property or title to or possession thereof,
the doctrine of lis pendens does not apply. Publication: from the above, service of summons by publication may be
made in the following instances:
Motion: the law requires that there is an action pending in court and not by 1. In actions in rem;
mere motion before the LRA. Such motion cannot be the basis of a notice of 2. Defendant is unknown, even actions in personam;
lis pendens. 3. Defendant is known but whereabouts is unknown;
4. If the defendant is a non-resident or not found in the Philippines, with
RULE 14: SUMMONS leave of court;
5. If the defendant is a resident, but temporarily out of the Philippines, with
SUMMONS: an order of the court requiring and informing a party to file an leave of court;
answer to the complaint, otherwise judgment will be rendered against him. 6. If the defendant is a foreign juridical entity, in the place where business
is conducted.
Requirement of Due Process: notice to enable the other party to be heard and
to present evidence is not a mere technicality or a trivial matter in any Section 1. Clerk to issue summons. — Upon the filing of the complaint
administrative or judicial proceedings. The service of summons is a vital and and the payment of the requisite legal fees, the clerk of court shall
indispensable ingredient of due process. (Sps. Mason vs. CA) forthwith issue the corresponding summons to the defendants.

Cesar Nickolai F. Soriano Jr.


26 Arellano University School of Law 2011-0303
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Section 2. Contents. — The summons shall be directed to the defendant, defendant had a relation of confidence, ensuring that the latter actually
signed by the clerk of court under seal and contain (a) the name of the receive the summons.
court and the names of the parties to the action; (b) a direction that the
defendant answer within the time fixed by these Rules; (c) a notice that Security guard: not authorized and who does not possess a relation of
unless the defendant so answers plaintiff will take judgment by default and confidence that the defendant would receive the summons is not the kind of
may be granted the relief applied for. service contemplated by the rule. Thus, service on the security guard could
not be considered as substantial compliance with the requirements of
A copy of the complaint and order for appointment of guardian ad litem if substituted service. (Chu vs. Mach Asia Trading)
any, shall be attached to the original and each copy of the summons.
How many attempts: at least three, preferably on at least two different
Section 3. By whom served. — The summons may be served by the dates. (Manotoc vs. CA) Note, however, in Macasaet vs. Co, the SC held that
sheriff, his deputy, or other proper court officer, or for justifiable reasons there was valid substituted service when the summonses served twice within
by any suitable person authorized by the court issuing the summons. the day and there was evidence of actual receipt.

Section 4. Return. — When the service has been completed, the server “Reasonable Time”: for service in the person of the defendant may be
shall, within five (5) days therefrom, serve a copy of the return, personally understood as “one month” from the issuance of summons.
or by registered mail, to the plaintiff's counsel, and shall return the
summons to the clerk, who issued it, accompanied by proof of service. Section 8. Service upon entity without juridical personality. —
When persons associated in an entity without juridical personality are sued
Section 5. Issuance of alias summons. — If a summons is returned under the name by which they are generally or commonly known, service
without being served on any or all of the defendants, the server may be effected upon all the defendants by serving upon any one of them,
shall also serve a copy of the return on the plaintiff's counsel, stating the or upon the person in charge of the office or place of business maintained
reasons for the failure of service, within five (5) days therefrom. In such a in such name. But such service shall not bind individually any person whose
case, or if the summons has been lost, the clerk, on demand of the connection with the entity has, upon due notice, been severed before the
plaintiff, may issue an alias summons. action was brought.

Applicability: when the original summons was: Upon whom is summons served: all the defendants by serving upon:
1. Returned unserved; or 1. Any one of them;
2. Lost. 2. The person in charge of the office or place of business.

Section 6. Service in person on defendant. — Whenever practicable, Such service will not bind individually any person whose connection with the
the summons shall be served by handling a copy thereof to the defendant entity has been severed before the action was brought.
in person, or, if he refuses to receive and sign for it, by tendering it to him.
Section 9. Service upon prisoners. — When the defendant is a prisoner
2 MODES OF SERVICE IN PERSON: confined in a jail or institution, service shall be effected upon him by the
1. By handing a copy of the summons to the defendant in person; or officer having the management of such jail or institution who is
2. By tendering it to him, if he refuses to receive and sign it. deemed deputized as a special sheriff for said purpose.

Section 7. Substituted service. — If, for justifiable causes, the Warden: in this case is not the one upon whom summons is served, but the
defendant cannot be served within a reasonable time as provided in the one authorized as a sheriff to serve the summons upon the prisoner.
preceding section, service may be effected (a) by leaving copies of the
summons at the defendant's residence with some person of suitable age Section 10. Service upon minors and incompetents. — When the
and discretion then residing therein, or (b) by leaving the copies at defendant is a minor, insane or otherwise an incompetent, service shall be
defendant's office or regular place of business with some competent made upon him personally AND on his legal guardian if he has one,
person in charge thereof. or if none his guardian ad litem whose appointment shall be applied
for by the plaintiff. In the case of a minor, service may also be made on
Four requirements to effect a valid substituted service of summons: his father or mother.
1. Impossibility of prompt service on the person of the defendant;
Section 11. Service upon domestic private juridical entity. — When
In general, substituted service can be availed of only after a clear the defendant is a corporation, partnership or association organized under
showing that personal service of summons was not legally possible. (Sps. the laws of the Philippines with a juridical personality, service may be made
Jose vs. Sps. Boyon) on the (1) president, (2) managing partner, (3) general manager,
(4) corporate secretary, (5) treasurer, or (6) in-house counsel.
2. Specific details in the return describing the facts and circumstances
surrounding the service on the person of the defendant; Test of Validity and Sufficiency of Service of Summons: is whether:
3. If to be effected in the defendant’s house, it must be left to a person of 1. The same and the attachments thereto were ultimately received by the
suitable age and discretion residing therein; corporation;
4. If to be effected in the defendant’s office, it must be served upon a 2. No undue prejudice is sustained by it from procedural lapse; and
competent person in charge thereof. (Manotoc vs. CA) 3. It was afforded full opportunity to present its responsive pleading.

Residence, must be that at the time of service. The service of the summons Where a corporation only learns of the service of summons and the filing of
on a person at a place where he was a visitor is not considered to have been the complaint against it through some person or means other than the person
left at the residence or place or abode, where he has another place at which actually served, the service of summons becomes meaningless. (Millennium
he ordinarily stays and to which he intends to return. Thus, the service of Industrial Commercial Corporation vs. Tan)
summons upon the brother of the defendant, who was only there to collect
rentals, and is not shown to live there, is not valid. (Domagas vs. Jensen) Enumeration is exclusive: the designation of persons or officers who are
authorized to accept summons for a domestic corporation or partnership is
Person to receive: the report should indicate the person who received the now limited and more clearly specified in Sec. 11, Rule 14. The then Sec. 13
summons in the defendant’s behalf; that he was one with whom the of this Rule allowed service upon a defendant corporation to be made on the
president, manager, secretary, cashier, agent or any of its directors. The
aforesaid terms were obviously ambiguous and susceptible of broad and
Cesar Nickolai F. Soriano Jr.
27 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
sometimes illogical interpretations, especially with the word agent of the Government Official designated by law; example: Governor of BSP for
corporation. (EB Villarosa vs. Benito) banks, Insurance Commissioner for insurance companies.

The enumeration above is exclusive and that service of summons upon one The above has been amended by AM No. 11-3-6-SC as follows:
who is not enumerated therein is invalid. (Millennium Industrial Commercial
Corporation vs. Tan) AMENDMENT OF SECTION 12, RULE 14 OF THE RULES OF
COURT ON SERVICE UPON FOREIGN PRIVATE JURIDICAL
Rationale: The rationale of the rule is that service of summons must be made ENTITY
on a representative so integrated with the corporation sued as to make it a
priori presumable that he will realize his responsibilities and know what he Section 12, Rule 14 of the Rules of Court is hereby amended to read
should do with any legal papers received by him. (Millennium Industrial as follows:
Commercial Corporation vs. Tan)
"SEC. 12. Service upon foreign private juridical entity. — When the
Exception: SUBSTANTIAL COMPLIANCE: however, it is settled that defendant is a foreign private juridical entity which has transacted
substantial compliance by serving summons on persons other than those business in the Philippines, service may be made on its resident agent
mentioned in the above rule may be justified (Millennium Industrial designated in accordance with law for that purpose, or, if there be no
Commercial Corporation vs. Tan), such as if it appears that the summons and such agent, on the government official designated by law to that effect,
complaint were in fact received by the corporation, there is substantial or on any of its officers or agents within the Philippines.
compliance with the rule as its purpose has been attained. (G & G Trading
Corporation vs. CA) If the foreign private juridical entity is not registered in the Philippines or
has no resident agent, service may, with leave of court, be effected out
REQUISTIES OF APPLICATION OF THE DOCTRINE OF SUBSTANTIAL of the Philippines through any of the following means:
COMPLIANCE:
1. There must be actual receipt of the summons by the person served, i.e., a) By personal service coursed through the appropriate court in the
transferring possession of the copy of the summons from the Sheriff to foreign country with the assistance of the Department of Foreign Affairs;
the person served;
2. The person served must sign a receipt or the sheriff’s return; and b) By publication once in a newspaper of general circulation in the
3. There must be ACTUAL RECEIPT of the summons by the CORPORATION country where the defendant may be found and by serving a copy
through the person on whom the summons was actually served. of the summons and the court order by-registered mail at the last
known address of the defendant;
The third requisite is the most important for it is through such receipt that the
purpose of the rule on service of summons is attained. c) By facsimile or any recognized electronic means that could
generate proof of service; or
For substantial compliance to apply, receipt cannot be inferred, the
same must be actual: for there to be substantial compliance, actual receipt d) By such other means as the court may in its discretion direct."
of summons by the corporation through the person served must be shown.
Where a corporation only learns of the service of summons and the filing of This rule shall take effect fifteen (15) days after publication in a
the complaint against it THROUGH SOME PERSON OR MEANS OTHER THAN newspaper of general circulation in the Philippines.
THE PERSON ACTUALLY SERVED, the summons becomes meaningless.
March 15, 2011
Service to BRANCH manager; not valid: since the enumeration is
exclusive, the service should be done upon a GENERAL manager and not a Section 13. Service upon public corporations. — When the defendant
BRANCH manager. Service to the latter is not valid and will not bind the is the Republic of the Philippines, service may be effected on the Solicitor
corporation since the branch manager is not included in the enumeration of General; in case of a province, city or municipality, or like public
the statute of the persons upon whom service of summons can be validly corporations, service may be effected on its executive head, or on such
made in behalf of the corporation. (EB Villarosa & Partner Co., Ltd., vs. Benito, other officer or officers as the law or the court may direct.
BPI vs. Santiago)
SERVICE BY PUBLICATION:
Service to Legal Assistant; not valid: since the enumeration is restricted,
limited and exclusive. A legal assistant, is not one of those authorized to Section 14. Service upon defendant whose identity or
receive court processes in behalf of the president. Especially so, when the whereabouts are unknown. — In any action where the defendant is
same is made on a legal assistant not employed by the defendant but that of designated as an unknown owner, or the like, or whenever his
its related companies, but nonetheless a separate entity. whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a
When defect is cured: newspaper of general circulation and in such places and for such time
1. Service of alias summons – whatever defect attended the service of the as the court may order.
original summons, was promptly and accordingly cured. (BPI vs.
Santiago) Any action: the present rule expressly states that it applies “in any action
2. Filing of motion seeking affirmative relief – a defendant’s Entry of where the defendant is designated as unknown owner, or the like, or
Appearance with Motion for Time, equivalent to a voluntary appearance, whenever his whereabouts are unknown and cannot be ascertained by diligent
places the defendant under the jurisdiction of the court. (DOLE inquiry.” Thus, it now applies to ANY ACTION, WHETHER IN PERSONAM, IN
Philippines Inc. vs. Quilala) REM OR QUASI IN REM. (Santos vs. PNOC Exploration Corporation)

Section 12. Service upon foreign private juridical entities. — When Section 15. Extraterritorial service. — When the defendant does not
the defendant is a foreign private juridical entity which has transacted reside and is not found in the Philippines, and the action affects the
business in the Philippines, service may be made on (1) its resident personal status of the plaintiff or relates to, or the subject of which is,
agent designated in accordance with law for that purpose, or, (2) if there property within the Philippines, in which the defendant has or claims a lien
be no such agent, on the government official designated by law to or interest, actual or contingent, or in which the relief demanded consists,
that effect, or (3) on any of its officers or agents within the wholly or in part, in excluding the defendant from any interest therein, or
Philippines. the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by
Cesar Nickolai F. Soriano Jr.
28 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
personal service as under section 6; or by publication in a newspaper of jurisdiction over the person of the defendant shall not be deemed a
general circulation in such places and for such time as the court may order, voluntary appearance.
in which case a copy of the summons and order of the court shall be sent
by registered mail to the last known address of the defendant, or in any Motion to Dismiss: for a defendant not to be considered to have submitted
other manner the court may deem sufficient. Any order granting such leave through voluntary appearance, the submission must be UNEQUIVOCAL or
shall specify a reasonable time, which shall not be less than sixty (60) days CATEGORICAL, e.g., a motion to dismiss on any ground, even if not for lack
after notice, within which the defendant must answer. of jurisdiction. A motion to dismiss precisely questioning jurisdiction over the
person of the defendant can by no means be deemed a submission to the
Extraterritorial Service; when applicable: jurisdiction of the court. (EB Villarosa & Partner Co., LTD vs. Benito)
1. When the defendant does not reside and is not found in the Philippines;
AND However, if a motion to extend time is filed, by asking affirmative relief from
2. The action: the court, such as to admit answer or for reconsideration of default judgment,
a. Affects the personal status of the plaintiff; or the defendant is deemed to have voluntarily submitted to the court’s
b. Relates to, or the subject of which is property within the Philippines, jurisdiction. (DOLE Philippines, Inc. vs. Quilala)
in which the defendant has or claims a lien or interest, actual or
contingent; or in which the relief demanded consists, wholly or in OTHER CASES ON SUMMONS:
part, in excluding the defendant from any interest therein, or the 1. Heirs who are not registered owners of the land subject of the litigation,
property of the defendant has been attached within the Philippines. but represented merely an inchoate interest thereto as heirs had no
standing in court because the property of the estate was represented by
How made? by leave of court: the executor or administrator. Thus, there was no need to implead them
1. by service upon the person of the defendant as under section 6; or as defendants in the case, in as much as the estate of the deceased had
2. by publication in a newspaper of general circulation in such places and already been made a party. As such, there was no need to include said
for such time as the court may order, in which case a copy of the heirs. Not being parties to the case, were not entitled to service of
summons and order of the court shall be sent by registered mail to summons. (Ramos vs. Ramos)
the last known address of the defendant, or 2. Although the respondent should have resorted to other means to
3. in any other manner the court may deem sufficient. determine the correct address of the petitioner when it was informed by
the sheriff that he failed to serve the summons on the petitioner, the
Substituted Service, when allowed: Service upon the person of the respondent is not entirely to blame for such failure because the
husband of the defendant is not within the first two modes. Thus, to be valid, petitioner’s address as indicated by Wood Based Panels, Inc., and
it must fall under the third mode, and as such, must be done with leave of Sinrimco, Inc. on their respective General Information Sheets, was
court. (Valmonte vs. CA) incorrect. (Teh vs. CA)

Summons served by registered mail: may only be done as “any other V. RULES 15 to 19
manner the court may deem sufficient”. Note that service of summons by
registered mail is not allowed in other cases. RULE 15: Motions

Ordinarily service of summons cannot be done by mail (registered or ordinary) Section 1. Motion defined. — A motion is an application for relief
because it will be dependent upon the mail proper by which the court do not other than by a pleading.
necessarily have control.
In motions, particular relief is sought; while in a pleading, general relief is
Section 16. Residents temporarily out of the Philippines. — When prayed for. As such, a motion is a kind of pleading, but pleadings are not
any action is commenced against a defendant who ordinarily resides within motions.
the Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding 2 KINDS OF MOTIONS:
section. 1. Litigated – requirements are under Sec. 4, 5 and 6:
a. In writing;
Section 17. Leave of court. — Any application to the court under this b. Notice - serve a copy to the adverse party;
Rule for leave to effect service in any manner for which leave of court is c. Set for hearing.
necessary shall be made by motion in writing, supported by affidavit of the 2. Non-litigated
plaintiff or some person on his behalf, setting forth the grounds for the
application. Section 2. Motions must be in writings. — All motions shall be in
writing except those made in open court or in the course of a
Section 18. Proof of service. — The proof of service of a summons shall hearing or trial.
be made in writing by the server and shall set forth the manner, place, and
date of service; shall specify any papers which have been served with the Written motions which are non-litigious: motion for postponement and
process and the name of the person who received the same; and shall be motion for extension of time. Although required to be in writing and a copy
sworn to when made by a person other than a sheriff or his deputy. thereof sent to the other party, it is not required to be set for hearing.

Section 19. Proof of service by publication. — If the service has been Section 3. Contents. — A motion shall state (1) the relief sought to be
made by publication, service may be proved by the affidavit of the printer, obtained and (2) the grounds upon which it is based, and if required by
his foreman or principal clerk, or of the editor, business or advertising these Rules or necessary to prove facts alleged therein, shall be
manager, to which affidavit a copy of the publication shall be attached and accompanied by supporting affidavits and other papers.
by an affidavit showing the deposit of a copy of the summons and order
for publication in the post office, postage prepaid, directed to the Section 4. Hearing of motion. — Except for motions which the court
defendant by registered mail to his last known address. may act upon without prejudicing the rights of the adverse party, every
written motion shall be set for hearing by the applicant.
Section 20. Voluntary appearance. — The defendant's voluntary
appearance in the action shall be equivalent to service of summons. The Every written motion required to be heard and the notice of the hearing
inclusion in a motion to dismiss of other grounds aside from lack of thereof shall be served in such a manner as to ensure its receipt by the

Cesar Nickolai F. Soriano Jr.


29 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
other party at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice. Section 10. Form. — The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, designation, signature, and
Section 5. Notice of hearing. — The notice of hearing shall be other matters of form.
addressed to all parties concerned, and shall specify the time and date of
the hearing which must not be later than ten (10) days after the RULE 16: Motion to Dismiss
filing of the motion.
When Filed: generally, before an answer is filed. Except, if grounded upon
3-day NOTICE and 10-day SETTING rule: when a motion is filed on the following:
February 1, the hearing must not be later than February 11 and the notice 1. Lack of jurisdiction over the subject matter;
must be received by the adverse party not later than February 8 if the motion 2. Litis Pendentia;
is set for hearing on the 11th. 3. Res Judicata;
4. Statute of Limitations.
If there is a conflict, such that the notice was received only on the 10th, the
hearing should be sent on the 13th. The 3-day notice rule is preferred over the Section 1. Grounds. — Within the time for but before filing the answer
10-day setting rule. to the complaint or pleading asserting a claim, a motion to dismiss may be
made on any of the following grounds:
This is because the notice is a matter of due process, whereas the 10-day
setting rule is only with regards the calendar of the court. (a) That the court has no jurisdiction over the person of the defending
party;
When notice is not required: when the motion is ex-parte or will not (b) That the court has no jurisdiction over the subject matter of the
prejudice the right of the other party, such as a motion to set the case for claim;
pre-trial. (c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
Section 6. Proof of service necessary. — No written motion set for (e) That there is another action pending between the same parties for
hearing shall be acted upon by the court without proof of service thereof. the same cause;
(f) That the cause of action is barred by a prior judgment or by the
Section 7. Motion day. — Except for motions requiring immediate statute of limitations;
action, all motions shall be scheduled for hearing on Friday afternoons, or (g) That the pleading asserting the claim states no cause of action;
if Friday is a non-working day, in the afternoon of the next working day. (h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
Section 8. Omnibus motion. — Subject to the provisions of section 1 of (i) That the claim on which the action is founded is unenforceable under
Rule 9, a motion attacking a pleading, order, judgment, or the provisions of the statute of frauds; and
proceeding shall include all objections then available, and all (j) That a condition precedent for filing the claim has not been complied
objections not so included shall be deemed waived. with.

Exceptions to the omnibus motion rule: GROUNDS: PSV-LAB-NEUC: RELATED RULES:


1. The court has no jurisdiction over the subject matter; (a) Rule 14: Summons or Voluntary Appearance;
2. That there is an action pending between the same parties for the same (b) Conferred by law;
cause; or (c) Rule 4: Venue;
3. That the action is barred by prior judgment or (d) Rule 3: Parties;
4. By the statute of limitations.
e.g. a minor who sues in his own instance without the assistance of a
Lack of jurisdiction over the person of the defendant is waived if not parent or guardian.
raised in a Motion to Dismiss or Answer: the defense of lack of
jurisdiction over the person of a party to a case is not one of those defenses (e) Litis Pendentia; one case for a single cause of action: Rule 2: Cause of
which are not deemed waived under Section 1 of Rule 9, such defense must Action;
be invoked when an answer or a motion to dismiss is filed in order to prevent
a waiver of the defense. If the objection is not raised either in a motion to Requirements of litis pendentia:
dismiss or in the answer, the objection to the jurisdiction over the person of 1. Identity of parties;
the plaintiff or the defendant is deemed waived by virtue of the first sentence 2. Identity of subject matter;
of the above-quoted Section 1 of Rule 9 of the Rules of Court. (Boston Equity 3. Identity of causes of action.
Resources, Inc. vs. CA)
Such that a decision in one case will amount to res judicata on the other.
Defective Certification of Non-Forum Shopping and/or Verification
is waived if not raised in a Motion to Dismiss or Answer: Absent any (f) Res Judicata;
justifiable reason to explain the fatal omission, the ground of defective
verification and certification of forum shopping was deemed waived and could Requirements of Res Judicata: (FJCI)
no longer be questioned by the petitioners in their second motion to dismiss. 1. There must be final judgment – in the sense of Rule 39
(Sps. De Guzman vs. Ochoa) (Execution of Judgment), not under Rule 36 because a mere final
judgment has no entry yet, and it can be remedied under Rule 37
Section 9. Motion for leave. — A motion for leave to file a pleading or and Appeal. “final” should be “executory”.
motion shall be accompanied by the pleading or motion sought to be 2. It must be a judgment on the merits – does not mean that there
admitted. was a trial proper or presentation of evidence. As long as all the
parties were given the opportunity to present their side, or their
When necessary: position, it will suffice that the judgment is one on the merits.
1. Pleadings in intervention; Examples: Judgment by default; Summary Judgment; Judgment on
2. 3rd, 4th – party claim; the Pleadings; Judgment based on compromise;
3. Cross-claim. 3. Judgment must be rendered by a court of competent
4. Demurrer. jurisdiction – which goes into the validity of the judgment,

Cesar Nickolai F. Soriano Jr.


30 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
because a judgment rendered by a court without jurisdiction is null jurisdiction over the subject matter, res judicata, litis pendentia and
and void; prescription.
4. Identity of cause of action, subject matter and parties –
“parties” need not be literal, such that successors-in-interest may Compare with: Rule 117, Sec. 3: see Sec. 3, Rule 117 for the comparison.
still be considered identical “parties”, the better term would be
identity of interests. Section 2. Hearing of motion. — At the hearing of the motion, the
parties shall submit their arguments on the questions of law and their
The above requirements are for res judicata proper. The other kind of evidence on the questions of fact involved except those not available at
res judicata is Conclusiveness of Judgment, which lacks the identity that time. Should the case go to trial, the evidence presented during the
of cause of action requirement. (Sec. 47, Rule 39) hearing shall automatically be part of the evidence of the party presenting
the same.
Example: In a probate of the will whose subject is the extrinsic validity
of the same, ownership over a property was determined with the consent Section 3. Resolution of Motion. — After the hearing, the court may
of the parties affected thereto, who are all heirs (as an exception to the dismiss the action or claim, deny the motion, or order the amendment of
limited jurisdiction of the probate court). If later on, one of the heirs the pleading.
would file an action for res judicata, there is no identity of cause of action
for res judicata to apply, but conclusiveness of judgment will bar the The court shall not defer the resolution of the motion for the reason that
claim since the issue on ownership has already been decided upon. the ground relied upon is not indubitable.

Law of the case doctrine: is still different from conclusiveness of In every case, the resolution shall state clearly and distinctly the reasons
judgment. Under this doctrine, once a decision attains finality, it therefor.
becomes the law of the case, whether or not said decision is
erroneous. Having been rendered by a court of competent jurisdiction REMEDY IF DISMISSED: file an answer and wait for judgment. Afterwhich,
acting within its authority, the judgment may no longer be altered even an appeal may be had.
at the risk of legal infirmities and errors it may contain.
No appeal. Since an order denying a motion to dismiss is interlocutory.
Criminal Actions: the equivalent of res judicata in criminal actions is However, a petition for certiorari may be filed on jurisdictional grounds or if
double jeopardy. there is grave abuse of discretion amounting to lack or excess of jurisdiction.

(g) States no cause of action: Rule 2: Cause of Action; REMEDY IF GRANTED:


1. Appeal - If dismissal is with prejudice, such as res judicata, prescription,
No cause of action – by examining the complaint, assuming the the claim has been paid, waived, abandoned or otherwise extinguished,
allegations to be true, there is no cause of action, such as there was no or unenforceable under the statute of frauds. The grant of a motion to
right, or there is a right but there was no breach, or the defendant is not dismiss is a final order subject of an appeal, because the case was
a real party in interest. Based on the reading of the complaint, the court dismissed, there is nothing left for the court to do.
cannot render a relief. 2. Certiorari – if dismissal is without prejudice, since appeal is not an
available remedy under Sec. 1 of Rule 40, where the dismissal is without
Lack of cause of action – considers evidence already presented. In this prejudice to re-filing.
case, the proper remedy is not the filing of a motion to dismiss but by
filing a demurrer. Order of Issuance of Alias Summons: in a motion to dismiss grounded
upon lack of jurisdiction over the person of the defendant due to improper
(h) Rule 6: Affirmative Defenses service of summons, the court may order the issuance of alias summons since
(i) Statute of Frauds; the grant of the motion would result in a dismissal without prejudice where
(j) 3 conditions precedent: (prematurity) the case may be re-filed. As such, the court, even if not provided under Sec.
1. Exhaustion of Administrative Remedies; 3, may issue an alias summons.
2. Barangay Conciliation Proceedings;
3. When the case is between members of the same family – earnest Section 4. Time to plead. — If the motion is denied, the movant shall
effort to arrive at a settlement. file his answer within the balance of the period prescribed by Rule 11 to
which he was entitled at the time of serving his motion, but not less than
*exceptions to the barangay conciliation requirement: five (5) days in any event, computed from his receipt of the notice of the
a. an action wherein one of the parties is a government instrumentality; denial. If the pleading is ordered to be amended, he shall file his answer
b. when a public officer is involved and the action involved his public within the period prescribed by Rule 11 counted from service of the
office amended pleading, unless the court provides a longer period.
c. where one of the parties is a corporation
d. If the parties resides in different cities or municipalities except when No fresh period rule: the filing of the motion to dismiss will interrupt the
they voluntarily submit themselves in the proper forum and the barangay period to file the answer. However, the party shall only have the balance of
in which they reside is adjacent to each other. So even if the parties the period, but not less than 5 days.
reside in different cities or municipalities but they reside in a barangay
who is adjacent to each other there is still a need for barangay Section 5. Effect of dismissal. — Subject to the right of appeal, an order
conciliation. granting a motion to dismiss based on paragraphs (f), (h) and (i) of section
e. When the action avails any of the provisional remedies 1 hereof shall bar the refiling of the same action or claim.
*Note: non-compliance with barangay conciliation proceedings is no Dismissal is always with prejudice: if based on the following grounds:
longer jurisdictional in that they may be waived. 1. Res judicata/Prescription;
*Dismissal due to non-compliance with conditions precedent is grounded 2. That the claim has been paid, waived, abandoned or otherwise
on prematurity. Such that, the court does not dismiss but merely
extinguished;
suspends the proceedings subject to compliance thereof. 3. That the claim is unenforceable under the statute of frauds.
Time of Filing: “before answer” under Section 1 is not absolute. A motion to
Section 6. Pleading grounds as affirmative defenses. — If no motion
dismiss may be filed on the four grounds under Sec. 1 of Rule 9: lack of
to dismiss has been filed, any of the grounds for dismissal provided for in

Cesar Nickolai F. Soriano Jr.


31 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
this Rule may be pleaded as an affirmative defense in the answer and, in
the discretion of the court, a preliminary hearing may be had thereon as if Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable
a motion to dismiss had been filed. cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an
The dismissal of the complaint under this section shall be without prejudice unreasonable length of time, or to comply with these Rules or any order
to the prosecution in the same or separate action of a counterclaim of the court, the complaint may be dismissed upon motion of the defendant
pleaded in the answer. or upon the court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate
RULE 17: Dismissal of Actions action. This dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court.
Section 1. Dismissal upon notice by plaintiff. — A complaint may be
dismissed by the plaintiff by filing a notice of dismissal at any time Grounds for dismissal by the court MOTU PROPIO: similar to Sec. 1 of
before service of the answer or of a motion for summary Rule 9, the court may dismiss the complaint motu propio on the following
judgment. Upon such notice being filed, the court shall issue an order grounds:
confirming the dismissal. Unless otherwise stated in the notice, the 1. Failure of the plaintiff to appear on the date of the presentation of his
dismissal is without prejudice, except that a notice operates as an evidence in chief;
adjudication upon the merits when filed by a plaintiff who has once 2. Failure of the plaintiff to prosecute his action for an unreasonable length
dismissed in a competent court an action based on or including the same of time;
claim. 3. Failure to comply with the Rules of Court or any order of the court.

Dismissal by plaintiff: under this rule, the dismissal is caused by the Effect on counterclaim: the dismissal is without prejudice to the right of
plaintiff, and no ground is required. the defendant to prosecute the counterclaim whether on the same action or
in a separate action.
Order of Confirmation: for the dismissal under this rule, the court must
issue an order of confirmation, without which, the dismissal does not become Re-filing of the case: dismissal under this section is deemed to be on the
effective. merits, unless otherwise declared by the court.

This is different from the Order of Confirmation under Rule 68: Judicial Section 4. Dismissal of counterclaim, cross-claim, or third-party
Foreclosure which cuts the equity of redemption. complaint. — The provisions of this Rule shall apply to the dismissal of
any counterclaim, cross-claim, or third-party complaint. A voluntary
Before answer: if the notice was given AFTER an answer has been filed, the dismissal by the claimant by notice as in section 1 of this Rule, shall be
rule will no longer apply. made before a responsive pleading or a motion for summary judgment is
served or, if there is none, before the introduction of evidence at the trial
2-dismissal rule: when the action has been dismissed once before by the or hearing.
plaintiff under this rule, the 2nd dismissal shall be deemed an adjudication
of the merits. Therefore, res judicata will apply. RULE 18: Pre-Trial

Note, however, that the two dismissals must be valid. Such that, if the first Section 1. When conducted. — After the last pleading has been
dismissal was due to lack of jurisdiction, the rule will not apply yet. served and filed, if shall be the duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial.
Section 2. Dismissal upon motion of plaintiff. — Except as provided
in the preceding section, a complaint shall not be dismissed at the plaintiff's Setting for pre-trial: is by MOTION (non-litigated) after the last pleading
instance save upon approval of the court and upon such terms and has been served and filed. Under the guidelines for pre-trial, the plaintiff has
conditions as the court deems proper. If a counterclaim has been 5 days to file the motion from the service of the last pleading.
pleaded by a defendant prior to the service upon him of the plaintiffs
motion for dismissal, the dismissal shall be limited to the complaint. Criminal cases: pre-trial for criminal cases is under Rule 118.
The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15) Section 2. Nature and purpose. — The pre-trial is mandatory. The
days from notice of the motion he manifests his preference to have his court shall consider:
counterclaim resolved in the same action. Unless otherwise specified in the (a) The possibility of an amicable settlement or of a submission to
order, a dismissal under this paragraph shall be without prejudice. A class alternative modes of dispute resolution;
suit shall not be dismissed or compromised without the approval of the (b) The simplification of the issues;
court. (c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
Dismissal is upon motion: in contrast with Sec. 1, where the dismissal is documents to avoid unnecessary proof;
by notice. Similar to the first dismissal under Sec. 1, the dismissal under this (e) The limitation of the number of witnesses;
Section is without prejudice unless otherwise specified. (f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
Class suit: cannot be dismissed under Sec. 1, only by motion and with judgment, or of dismissing the action should a valid ground therefor be
approval of the court. found to exist;
(h) The advisability or necessity of suspending the proceedings; and
Effect on counter-claim: whether compulsory or permissive: (i) Such other matters as may aid in the prompt disposition of the action.
1. Not dismissed. The dismissal is limited to the complaint.
2. Dismissal is without prejudice to the right of the defendant to prosecute Section 3. Notice of pre-trial. — The notice of pre-trial shall be served
his counterclaim in a separate action UNLESS within 15 days from notice on counsel, or on the party who has no counsel. The counsel served with
of the motion, he manifests his preference to have his counterclaim such notice is charged with the duty of notifying the party represented by
resolved in the SAME action him.

This is an exception to the rule that the dismissal of the complaint carries with Notice: under the guidelines, the notice is provided to BOTH the counsel and
it the dismissal of the compulsory counterclaim. This is because the defendant the parties.
was already prejudiced by the filing of the complaint.
Cesar Nickolai F. Soriano Jr.
32 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
which shall recite in detail the matters taken up in the conference, the
Section 4. Appearance of parties. — It shall be the duty of the parties action taken thereon, the amendments allowed to the pleadings, and the
and their counsel to appear at the pre-trial. The non-appearance of a party agreements or admissions made by the parties as to any of the matters
may be excused only if a valid cause is shown therefor or if a considered. Should the action proceed to trial, the order shall, explicitly
representative shall appear in his behalf fully authorized in writing to enter define and limit the issues to be tried. The contents of the order shall
into an amicable settlement, to submit to alternative modes of dispute control the subsequent course of the action, unless modified before trial
resolution, and to enter into stipulations or admissions of facts and of to prevent manifest injustice.
documents.
Testimony need not be presented for matters already stipulated
Representative: of a party who does not appear in the pre-trial must be during pre-trial: Age of the victim was stipulated at the pre-trial and the
AUTHORIZED in writing: birth certificate marked as evidence; likewise, the victim testified as to her
1. To enter into an amicable settlement; age. As such, there is no need to present the birth certificate during the trial
2. To submit to alternate modes of dispute resolution; and to prove the age of the victim. (People vs. Perez)
3. To enter into stipulations or admissions of facts and of documents.
RULE 19: Intervention
Section 5. Effect of failure to appear. — The failure of the plaintiff to
appear when so required pursuant to the next preceding section shall be Section 1. Who may intervene. — A person who has a legal interest in
cause for dismissal of the action. The dismissal shall be with prejudice, the matter in litigation, or in the success of either of the parties, or an
unless otherwise ordered by the court. A similar failure on the part of the interest against both, or is so situated as to be adversely affected by a
defendant shall be cause to allow the plaintiff to present his evidence ex distribution or other disposition of property in the custody of the court or
parte and the court to render judgment on the basis thereof. of an officer thereof may, with leave of court, be allowed to intervene in
the action. The court shall consider whether or not the intervention will
Failure of PLAINTIFF to appear: shall be cause for the dismissal of the unduly delay or prejudice the adjudication of the rights of the original
action with prejudice, unless otherwise ordered by the court. parties, and whether or not the intervenor's rights may be fully protected
in a separate proceeding.
Failure of DEFENDANT to appear: cause to allow the plaintiff to present
his evidence ex parte and the court to render judgment on the basis thereof. Who may intervene: a person who:
No need to declare defendant in default. 1. Has legal interest over the subject matter of the case, either for or
against the defendant, the plaintiff or both;
Remedy for failure to appear: as for reconsideration showing that his 2. Is situated to be adversely affected by a distribution or other disposition
failure to appear or to file a pre-trial brief (which has the same effect) was of property in the custody of the court or of an officer.
due to fraud, accident, mistake or excusable neglect. (Saguid vs. CA)
Ombudsman who rendered the decision in the administrative case is
Both present: the parties will undergo mandatory conciliation or mediation not a proper party to intervene: the government party that can appeal is
proceedings. If no amicable settlement is reached, the mediator shall forward not the disciplining authority or tribunal which previously heard the case and
the records of the case to the court for preliminary conference. imposed the penalty of demotion or dismissal from the service. The
government party appealing must be the one that is prosecuting the
Preliminary Conference before the branch Clerk of Court: if there is administrative case against the respondent. Otherwise, an anomalous
no amicable settlement reached, the case shall be set for preliminary situation will result where the disciplining authority or tribunal hearing the
conference where the parties shall be asked of their stipulations and case, instead of being impartial and detached, becomes an active participant
admissions, evidence are marked, and the names of the witnesses are in prosecuting the respondent
provided.
Clearly, the Office of the Ombudsman is not an appropriate party to intervene
Section 6. Pre-trial brief. — The parties shall file with the court and in the instant case. It must remain partial and detached. More importantly, it
serve on the adverse party, in such manner as shall ensure their receipt must be mindful of its role as an adjudicator, not an advocate.
thereof at least three (3) days before the date of the pre-trial, their
respective pre-trial briefs which shall contain, among others: The Office of the Ombudsman is not a third party who has a legal interest in
(a) A statement of their willingness to enter into amicable settlement or the administrative case against the petitioner such that it would be directly
alternative modes of dispute resolution, indicating the desired terms affected by the judgment that this Court had rendered. It must be
thereof; remembered that the legal interest required for an intervention must be direct
(b) A summary of admitted facts and proposed stipulation of facts; and immediate in character. Lest it be forgotten, what was brought on appeal
(c) The issues to be tried or resolved; before this Court is the very Decision by the Office of the Ombudsman. Plainly,
(d) The documents or exhibits to be presented stating the purpose thereof; the Office of the Ombudsman, as an adjudicator, and not an advocate, has
(e) A manifestation of their having availed or their intention to avail no legal interest at stake in the outcome of this Rule 43 Petition (Office of the
themselves of discovery procedures or referral to commissioners; and Ombudsman vs. Sison)
(f) The number and names of the witnesses, and the substance of their
respective testimonies. A person who did not intervene before the trial court or the CA,
cannot maintain an action for certiorari to question the decisions of
Failure to file the pre-trial brief shall have the same effect as the said court: a person not a party to the proceedings in the trial court or
failure to appear at the pre-trial. in the CA cannot maintain an action for certiorari in the Supreme Court to
have the judgment reviewed. Stated differently, if a petition for certiorari or
Failure of the defendant to submit a pre-trial brief shall have the same effect prohibition is filed by one who was not a party in the lower court, he has no
as failure to appear at the pre-trial, i.e., the plaintiff may present evidence ex- standing to question the assailed order.
parte.
A petition seeking to annul a writ of preliminary injunction issued by the CA
Remedy of the defendant is to ask for reconsideration and provide a reason cannot be allowed if the party filing it did not bother to intervene in the CA
for non-compliance. Not being assisted by counsel is not a valid ground. cases. (Fernandez vs. CA)
(Saguid vs. CA)
How: by leave of court. No direct intervention, must always be preceded by
Section 7. Record of pre-trial. — The proceedings in the pre-trial shall leave of court.
be recorded. Upon the termination thereof, the court shall issue an order
Cesar Nickolai F. Soriano Jr.
33 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Under Rule 15, Sec. 1, a motion for leave to intervene may be filed attaching corpus cases, election cases, special civil actions, and those so required by
thereto the answer or complaint in intervention. law.

Purpose: is not to delay the proceedings, but to resolve the case in one Section 2. Assignment of cases. — The assignment of cases to the
setting. different branches of a court shall be done exclusively by raffle. The
assignment shall be done in open session of which adequate notice shall
Requisites: be given so as to afford interested parties the opportunity to be present.
1. The intervenor has legal interest in the case;
2. The adjudication of the rights of the parties will NOT be delayed or RULE 21: Subpoena
prejudiced;
3. That the intervenor’s right cannot be protected in a different proceeding. Section 1. Subpoena and subpoena duces tecum. — Subpoena is a
process directed to a person requiring him to attend and to testify at the
Section 2. Time to intervene. — The motion to intervene may be filed hearing or the trial of an action, or at any investigation conducted by
at any time before rendition of judgment by the trial court. A copy of the competent authority, or for the taking of his deposition. It may also require
pleading-in-intervention shall be attached to the motion and served on the him to bring with him any books, documents, or other things under his
original parties. control, in which case it is called a subpoena duces tecum.

When: as a general rule, the motion must be filed before rendition of Subpoena vs. Summons: compared to a Summons, a subpoena is not
judgment. (Yao vs. Perello) issued to acquire jurisdiction over a person, but a judicial invitation for the
person to appear before the court or produce documents.
Exception: In Pinlac vs. CA, where the intervention was filed before the
Supreme Court, during a motion for reconsideration. The Court allowed the Kinds:
intervention in the interest of substantial justice. 1. Subpoena duces tecum - require him to bring with him any books,
documents, or other things under his control.
In this case, the intervenor was the Republic concerning the annulment of 2. Subpoena ad testificandum - a process directed to a person requiring
land titles of Filinvest. him to attend and to testify at the hearing or the trial of an action, or at
any investigation conducted by competent authority, or for the taking of
Moreover, even if the judgment has already been rendered and attained his deposition.
finality, intervention may still be allowed if the intervenor is an indispensable
party. This is because the judgment would be useless, null and void, if an Section 2. By whom issued. — The subpoena may be issued by —
indispensable party would not be allowed to intervene.
(a) the court before whom the witness is required to attend;
Exceptional circumstances may warrant the granting of an intervention even (b) the court of the place where the deposition is to be taken;
after the decision has attained finality, to wit: (c) the officer or body authorized by law to do so in connection with
1. The interests of the intervenor arose only after rendition of the investigations conducted by said officer or body; or
judgment; (d) any Justice of the Supreme Court or of the Court of Appeals in any case
2. The intervention would not result in delay or prejudice to the rights of or investigation pending within the Philippines.
the parties;
3. The ground of the intervenor has ownership of the property subject of When application for a subpoena to a prisoner is made, the judge or officer
the execution where he filed his intervention; and shall examine and study carefully such application to determine whether
4. Upon learning of the execution, the intervention was the most opportune the same is made for a valid purpose.
and expedient remedy available to the intervenor. (Rodriguez vs. CA)
No prisoner sentenced to death, reclusion perpetua or life imprisonment
Section 3. Pleadings-in-intervention. — The intervenor shall file a and who is confined in any penal institution shall be brought outside the
complaint-in-intervention if he asserts a claim against either or all of the said penal institution for appearance or attendance in any court unless
original parties, or an answer-in-intervention if he unites with the authorized by the Supreme Court.
defending party in resisting a claim against the latter.
Who may issue: aside from courts, as stated above, the following may issue
Dismissal of principal complaint: carries with it the dismissal of a a subpoena:
complaint-in-intervention since the latter is only ancillary to the former. 1. NBI;
2. DOJ;
Section 4. Answer to complaint-in-intervention. — The answer to 3. Senate and House of Representatives;
the complaint-in-intervention shall be filed within fifteen (15) days from 4. Other investigative bodies (quasi-judicial tribunals)
notice of the order admitting the same, unless a different period is fixed 5. Commissioners under Rule 32.
by the court.
Convict sentenced to death, reclusion perpetua and life
Remedy to Question Grant of Motion for Leave to Intervene is imprisonment: only the Supreme Court may authorize the issuance of a
CERTIORARI: when a court commits a mistake and allows an uninterested subpoena to bring the said convict to court.
person to intervene in a case—the mistake is not simply an error of judgment,
but one of jurisdiction. In such event, the allowance is made in excess of the Pending case: a subpoena for civil and criminal procedures cannot be issued
court’s jurisdiction and can only be the product of an exercise of discretion without a pending case. This is different from Senate and Congressional
gravely abused. That kind of error may be reviewed in a special civil action Hearings in aid of legislation which have different rules.
for certiorari. (Anonuevo vs. Intestate Estate of Rodolfo Jalandoni)
Section 3. Form and contents. — A subpoena shall state the name of
RULE 20: Calendar of Cases the court and the title of the action or investigation, shall be directed to
the person whose attendance is required, and in the case of a
Section 1. Calendar of cases. — The clerk of court, under the direct subpoena duces tecum, it shall also contain a reasonable description of the
supervision of the judge, shall keep a calendar of cases for pre-trial, for books, documents or things demanded which must appear to the
trial, those whose trials were adjourned or postponed, and those with court prima facie relevant.
motions to set for hearing. Preference shall be given to habeas

Cesar Nickolai F. Soriano Jr.


34 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 4. Quashing a subpoena. — The court may quash a court from which the subpoena is issued. If the subpoena was not issued
subpoena duces tecum upon motion promptly made and, in any event, at by a court, the disobedience thereto shall be punished in accordance with
or before the time specified therein if it is unreasonable and oppressive, or the applicable law or Rule.
the relevancy of the books, documents or things does not appear, or if the
person in whose behalf the subpoena is issued fails to advance the Section 10. Exceptions. — The provisions of sections 8 and 9 of this
reasonable cost of the production thereof. Rule shall not apply to a witness who resides more than one hundred (100)
kilometers from his residence to the place where he is to testify by the
The court may quash a subpoena ad testificandum on the ground that the ordinary course of travel, or to a detention prisoner if no permission of the
witness is not bound thereby. In either case, the subpoena may be court in which his case is pending was obtained.
quashed on the ground that the witness fees and kilometrage allowed by
these Rules were not tendered when the subpoena was served. RULE 22: Computation of Time

Grounds for quashing a subpoena: Section 1. How to compute time. — In computing any period of time
1. Duces Tecum: prescribed or allowed by these Rules, or by order of the court, or by any
a. It is unreasonable and oppressive; applicable statute, the day of the act or event from which the designated
b. The relevancy of the documents does not appear; period of time begins to run is to be excluded and the date of performance
c. The person in whose behalf the subpoena is issued fails to advance included. If the last day of the period, as thus computed, falls on a
the cost of production; Saturday a Sunday, or a legal holiday in the place where the court sits, the
d. The witness fees and kilometrage allowed by the Rules were not time shall not run until the next working day.
tendered when the subpoena was served.
e. There is no reasonable description of the documents required to be Section 2. Effect of interruption. — Should an act be done which
produced. effectively interrupts the running of the period, the allowable period after
such interruption shall start to run on the day after notice of the cessation
2. Ad testificandum: of the cause thereof.
a. The witness is not bound by the subpoena;
b. The witness fees and kilometrage allowed by the Rules were not The day of the act that caused the interruption shall be excluded in the
tendered when the subpoena was served. computation of the period.

Not bound: when the witness is disqualified, such as an insane person VI. RULES 23 to 32
or any person whose testimony is privileged.
MODES OF DISCOVERY: 12:
Viatory Right – if the witness is residing more than 100km from the place 1. Deposition pending appeal
where to testify, he may not be compelled to attend. (Section 10, Rule 21) 2. Deposition before action
The one who caused the issuance of the subpoena must pay the expenses of 3. Deposition pending action
transportation. 4. Interrogatories to parties
5. Admission by Adverse Parties
Section 5. Subpoena for depositions. — Proof of service of a notice to 6. Production of things
take a deposition, as provided in sections 15 and 25 of Rule 23, shall 7. Production of instruments/documents
constitute sufficient authorization for the issuance of subpoenas for the 8. Inspection of things
persons named in said notice by the clerk of the court of the place in which 9. Inspection of instruments/documents
the deposition is to be taken. The clerk shall not, however, issue a 10. Physical examination
subpoena duces tecum to any such person without an order of the court. 11. Mental examination

Section 6. Service. — Service of a subpoena shall be made in the same Purpose of Modes of Discovery: are meant to enable a party to learn all
manner as personal or substituted service of summons. The original shall the material and relevant facts, not only known to him and his witnesses but
be exhibited and a copy thereof delivered to the person on whom it is also those known to the adverse party and the latter's own witnesses. In fine,
served, tendering to him the fees for one day's attendance and the the object of discovery is to make it possible for all the parties to a case to
kilometrage allowed by these Rules, except that, when a subpoena is learn all the material and relevant facts, from whoever may have knowledge
issued by or on behalf of the Republic of the Philippines or an officer or thereof, to the end that their pleadings or motions may not suffer from
agency thereof, the tender need not be made. The service must be made inadequacy of factual foundation, and all the relevant facts may be clearly and
so as to allow the witness a reasonable time for preparation and travel to completely laid before the Court, without omission or suppression.
the place of attendance. If the subpoena is duces tecum, the reasonable (Dasmarinas Garments, Inc. vs. Reyes)
cost of producing the books, documents or things demanded shall also be
tendered. RULE 23: Depositions Pending Action

Section 7. Personal appearance in court. — A person present in court Section 1. Depositions pending action, when may be taken. — By
before a judicial officer may be required to testify as if he were in leave of court after jurisdiction has been obtained over any defendant or
attendance upon a subpoena issued by such court or officer. over property which is the subject of the action, or without such leave after
an answer has been served, the testimony of any person, whether a party
Section 8. Compelling attendance. — In case of failure of a witness to or not, may be taken, at the instance of any party, by deposition upon oral
attend, the court or judge issuing the subpoena, upon proof of the service examination or written interrogatories. The attendance of witnesses may
thereof and of the failure of the witness, may issue a warrant to the sheriff be compelled by the use of a subpoena as provided in Rule 21. Depositions
of the province, or his deputy, to arrest the witness and bring him before shall be taken only in accordance with these Rules. The deposition of a
the court or officer where his attendance is required, and the cost of such person confined in prison may be taken only by leave of court on such
warrant and seizure of such witness shall be paid by the witness if the terms as the court prescribes.
court issuing it shall determine that his failure to answer the subpoena was
willful and without just excuse. DEPOSITION is the testimony of a witness taken upon oral question or
written interrogatories, not in open court, but in pursuance of a commission
Section 9. Contempt. — Failure by any person without adequate cause to take testimony issued by court, or under a general law or court rule on the
to obey a subpoena served upon him shall be deemed a contempt of the subject, and reduce to writing and duly authenticated, and intended to be

Cesar Nickolai F. Soriano Jr.


35 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
used in preparation and upon the trial of a civil or a criminal prosecution. A any other party, including the existence, description, nature, custody,
pretrial discovery device by which one party (through his or her attorney) ask condition, and location of any books, documents, or other tangible things
oral questions of the other party or of a witness for the other party. The and the identity and location of persons having knowledge of relevant
person who is deposed is called the deponent. The deposition is conducted facts.
under oath outside of the court room, usually in one of the lawyer's offices. A
transcript — word for word account — is made of the deposition. Testimony What may be asked:
of [a] witness, taken in writing, under oath or affirmation, before some judicial 1. Any matter, not privileged;
officer in answer to questions or interrogatories. (People vs. Webb) 2. Relevant to the subject of the pending action;
3. Whether relating to the claim or defense of any other party;
Rule 23 is not applicable to Criminal Cases: the criminal proceedings are 4. Including the existence, description, nature, custody, condition and
primarily governed by the Revised Rules of Criminal Procedure. Considering location of any books, documents, or other tangible things; and
that Rule 119 adequately and squarely covers the situation in the instant case, 5. Identity and location of persons having knowledge of relevant facts.
we find no cogent reason to apply Rule 23 suppletorily or otherwise. (Vda. De
Manguera vs. Risos) Section 3. Examination and cross-examination. — Examination and
cross-examination of deponents may proceed as permitted at the trial
Leave of Court: under sections 3 to 18 of Rule 132.
1. Necessary when:
a. After jurisdiction over the person of the defendant has been Section 4. Use of depositions. — At the trial or upon the hearing of a
acquired but before issues are joined (before filing and service of motion or an interlocutory proceeding, any part or all of a deposition, so
the Answer); and far as admissible under the rules of evidence, may be used against any
b. Taking the deposition of a person confined in prison. party who was present or represented at the taking of the
2. Not necessary after issues have been joined. deposition or who had due notice thereof, in accordance with any one
of the following provisions;
Before issues are joined, leave of court is necessary to limit the questions that
the movant may ask to avoid any prejudice against the person whose (a) Any deposition may be used by any party for the purpose of
deposition is to be taken. contradicting or impeaching the testimony of deponent as a
witness;
After joining of the issues, leave of court is no longer necessary, since it would
necessarily follow that the questions are limited to the issues which have been (b) The deposition of a party or of any one who at the time of taking the
determined. deposition was an officer, director, or managing agent of a public or
private corporation, partnership, or association which is a party
Exception to the open court requirement: deposition is a full exception may be used by an adverse party for any purpose;
to the requirement that testimonial evidence must be taken in open court
under Rule 132, Section 1. (c) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds:
However, they are not generally meant to be a substitute for the actual (1) that the witness is dead, or
testimony in open court of a party or witness. The deponent must as a rule (2) that the witness resides at a distance more than one hundred
be presented for oral examination in open court at the trial or hearing any (100) kilometers from the place of trial or hearing, or is out of the
deposition offered to prove the facts therein set out during a trial or hearing, Philippines, unless it appears that his absence was procured by the party
in lieu of the actual oral testimony of the deponent in open court, may be offering the deposition, or
opposed and excluded on the ground that it is hearsay; the party against (3) that the witness is unable to attend or testify because of age,
whom it is offered has no opportunity to cross-examine the deponent at the sickness, infirmity, or imprisonment, or
time that his testimony is offered. It matters not that that opportunity for (4) that the party offering the deposition has been unable to procure
cross-examination was afforded during the taking of the deposition; for the attendance of the witness by subpoena; or
normally, the opportunity for cross-examination must be accorded a party at (5) upon application and notice, that such exceptional circumstances
the time that the testimonial evidence is actually presented against him during exist as to make it desirable, in the interest of justice and with due regard
the trial or hearing. to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and
However, depositions may be used without the deponent being actually called
to the witness stand by the proponent, under certain conditions and for certain (d) If only part of a deposition is offered in evidence by a party, the
limited purposes. These exceptional situations are governed by Section 4, Rule adverse party may require him to introduce all of it which is relevant
23 of the Rules of Court. (Dasmarinas Garments, Inc. vs. Reyes) to the part introduced, and any party may introduce any other parts.

Depositions may be taken at any stage of the proceeding: Depositions Section 5. Effect of substitution of parties. — Substitution of parties
may be taken at any time after the institution of any action, whenever does not affect the right to use depositions previously taken; and,
necessary or convenient. There is no rule that limits deposition-taking only to when an action has been dismissed and another action involving the same
the period of pre-trial or before it; no prohibition against the taking of subject is afterward brought between the same parties or their
depositions after pre-trial. (Dasmarinas Garments, Inc. vs. Reyes) representatives or successors in interest, all depositions lawfully taken and
duly filed in the former action may be used in the latter as if originally
However, in People vs. Webb, it was held that a deposition, in keeping with taken therefor.
its nature as a mode of discovery, should be taken before and not during trial.
In fact, rules on criminal practice — particularly on the defense of alibi, which
Section 6. Objections to admissibility. — Subject to the provisions of
is respondent's main defense in the criminal proceedings against him in the
section 29 of this Rule, objection may be made at the trial or hearing, to
court below — states that when a person intends to rely on such a defense,
receiving in evidence any deposition or part thereof for any reason which
that person must move for the taking of the deposition of his witnesses within
would require the exclusion of the evidence if the witness were then
the time provided for filing a pre-trial motion.
present and testifying.
Section 2. Scope of examination. — Unless otherwise ordered by the
Section 7. Effect of taking depositions. — A party shall not be deemed
court as provided by section 16 or 18 of this Rule, the deponent may be
to make a person his own witness for any purpose by taking his deposition.
examined regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or defense of
Cesar Nickolai F. Soriano Jr.
36 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
When does a deposition become testimonial evidence? The taking of 1. Commission – follows the Rules in the Philippines;
a deposition does not necessarily make a deponent the witness of the one 2. Letter Rogatory – once accepted by the foreign judicial officer,
requesting for his deposition. His deposition becomes testimonial evidence will follow the procedure in the foreign country.
only when offered.
c. Any person authorized to administer oaths, as stipulated by the
The effect of such use (except the purpose of contradicting or impeaching a parties, under Sec. 14.
deponent) is that the witness, whose testimony was used, becomes the
witness of the party introducing the deposition, but this does not apply to the Section 11. Persons before whom depositions may be taken
use by an adverse party under par. (b), as provided under Sec. 8: in foreign countries. — In a foreign state or country, depositions
may be taken (a) on notice before a secretary of embassy or legation,
Section 8. Effect of using depositions. — The introduction in evidence consul general, consul, vice-consul, or consular agent of the Republic
of the deposition or any part thereof for any purpose other than that of of the Philippines, (b) before such person or officer as may be
contradicting or impeaching the deponent makes the deponent the witness appointed by commission or under letters rogatory; or (c) the person
of the party introducing the deposition, but this shall not apply to the use referred to in section 14 hereof.
by an adverse party of a deposition as described in paragraph (b) of section
4 of this Rule. DISQUALIFICATION OF DEPOSITION OFFICER:

Section 9. Rebutting deposition. — At the trial or hearing any party Section 13. Disqualification by interest. — No deposition shall be
may rebut any relevant evidence contained in a deposition whether taken before a person who is a relative within the sixth degree of
introduced by him or by any other party. consanguinity or affinity, or employee or counsel of any of the parties, or
who is a relative within the same degree, or employee of such counsel; or
DEPOSITION OFFICER: before whom may depositions be taken? who is financially interested in the action.
1. Within the Philippines (Section 10):
a. Any judge; Who are disqualified:
b. Notary public; or 1. A relative within the sixth degree of consanguinity or affinity of any of
c. Any person authorized to administer oaths, as stipulated by the the parties or of their counsel;
parties, under Sec. 14. 2. Employees of any of the parties or of their counsel;
3. Counsel of any of the parties;
Section 10. Persons before whom depositions may be taken 4. Any person who is financially interested in the action.
within the Philippines. — Within the Philippines depositions may
be taken before any judge, notary public, or the person referred to DEPOSITION OFFICER BY STIPULATION:
in section 14 hereof.
Section 14. Stipulations regarding taking of depositions. — If the
parties so stipulate in writing, depositions may be taken before any person
2. In foreign countries (Section 11): authorized to administer oaths, at any time or place, in accordance with
a. Secretary of embassy or legation, consul, general consul, vice- these Rules and when so taken may be used like other depositions.
consul, or consular agent of the Republic of the Philippines – on
notice; Requirements:
b. Such person or officer as may be appointed by commission or under 1. Stipulation in writing;
letters rogatory; 2. The person must be authorized to administer oaths.

To whom addressed: TWO TYPES OF DEPOSITIONS PENDING ACTION:


i. Notices or Commission – officers may be designated either by 1. Depositions through oral examination; and
name or descriptive title 2. Depositions upon written interrogatories.
ii. Letters rogatory – to the appropriate judicial authority in the
foreign country. (Section 12) Section 15. Deposition upon oral examination; notice; time and
place. — A party desiring to take the deposition of any person upon oral
NOTE: Commission is a notice to any person named or designated examination shall give reasonable notice in writing, to every other party to
therein, while a letter rogatory is addressed to a judicial officer in the action. The notice shall state the time and place for taking the
the particular foreign country. deposition and the name and address of each person to be examined, if
known, and if the name is not known, a general description sufficient to
A commission may be defined as "(a)n instrument issued by a identify him or the particular class or group to which he belongs. On motion
court of justice, or other competent tribunal, to authorize a person of any party upon whom the notice is served, the court may for cause
to take depositions, or do any other act by authority of such court shown enlarge or shorten the time.
or tribunal".
Section 16. Orders for the protection of parties and deponents. —
Letters rogatory, on the other hand, may be defined as "(a)n After notice is served for taking a deposition by oral examination, upon
instrument sent in the name and by the authority of a judge or motion seasonably made by any party or by the person to be examined
court to another, requesting the latter to cause to be examined, and for good cause shown, the court in which the action is pending may
upon interrogatories filed in a cause pending before the former, a make an order that the deposition shall not be taken, or that it may be
witness who is within the jurisdiction of the judge or court to whom taken only at some designated place other than that stated in the notice,
such letters are addressed" or that it may be taken only on written interrogatories, or that certain
matters shall not be inquired into, or that the scope of the examination
Requirements: shall be held with no one present except the parties to the action and their
i. Issued only when necessary and convenient; officers or counsel, or that after being sealed the deposition shall be
ii. Application; opened only by order of the court, or that secret processes, developments,
iii. Notice; or research need not be disclosed, or that the parties shall simultaneously
iv. Issued only on such terms and with such direction as just and file specified documents or information enclosed in sealed envelopes to be
appropriate. (Section 12) opened as directed by the court or the court may make any other order

Procedure to be followed:
Cesar Nickolai F. Soriano Jr.
37 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
which justice requires to protect the party or witness from annoyance, on the record the fact of the waiver or of the illness or absence of the
embarrassment, or oppression. witness or the fact of the refusal to sign together with the reason be given
therefor, if any, and the deposition may then be used as fully as though
Orders for the protection of the parties and deponents: signed, unless on a motion to suppress under section 29 (f) of this Rule,
1. That the deposition shall not be taken; the court holds that the reasons given for the refusal to sign require
2. That it may be taken only at some designated place other than that rejection of the deposition in whole or in part.
stated in the notice;
3. That it may be taken only on written interrogatories; Requirements which may be waived:
4. That certain matters shall not be inquired into; 1. Reading of the deposition to or by the witness;
5. That the scope of the examination shall be held with no one present 2. Signature of the witness (other than waiver, if the witness is ill or cannot
except the parties to the action and their officers or counsel; be found or refused to sign).
6. That after being sealed the deposition shall be opened only by order of
the court; Section 20. Certification, and filing by officer. — The officer shall
7. That secret processes, developments, or research need not be disclosed; certify on the deposition that the witness was duly sworn to by him and
8. That the parties shall simultaneously file specified documents or that the deposition is a true record of the testimony given by the witness.
information enclosed in sealed envelopes to be opened as directed by He shall then securely seal the deposition in an envelope indorsed with the
the court; title of the action and marked "Deposition of (here insert the name of
9. The court may make any other order which justice requires to protect witness)" and shall promptly file it with the court in which the action is
the party or witness from annoyance, embarrassment, or oppression. pending or send it by registered mail to the clerk thereof for filing.

Section 17. Record of examination, oath; objections. — The officer Section 21. Notice of filing. — The officer taking the deposition shall
before whom the deposition is to be taken shall put the witness on oath give prompt notice of its filing to all the parties.
and shall personally, or by someone acting under his direction and in his
presence, record the testimony of the witness. The testimony shall be Section 22. Furnishing copies. — Upon payment of reasonable charges
taken stenographically unless the parties agree otherwise. All objections therefor, the officer shall furnish a copy of the deposition to any party or
made at the time of the examination to the qualifications of the officer to the deponent.
taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to the Section 23. Failure to attend of party giving notice. — If the party
proceedings, shall be noted by the officer upon the deposition. Evidence giving the notice of the taking of a deposition fails to attend and proceed
objected to shall be taken subject to the objections. In lieu of participating therewith and another attends in person or by counsel pursuant to the
in the oral examination, parties served with notice of taking a deposition notice, the court may order the party giving the notice to pay such other
may transmit written interrogatories to the officers, who shall propound party the amount of the reasonable expenses incurred by him and his
them to the witness and record the answers verbatim. counsel in so attending, including reasonable attorney's fees.

Section 18. Motion to terminate or limit examination. — At any time Section 24. Failure of party giving notice to serve subpoena. — If
during the taking of the deposition, on motion or petition of any party or the party giving the notice of the taking of a deposition of a witness fails
of the deponent, and upon a showing that the examination is being to serve a subpoena upon him and the witness because of such failure
conducted in bad faith or in such manner as unreasonably to annoy, does not attend, and if another party attends in person or by counsel
embarrass, or oppress the deponent or party, the court in which the action because he expects the deposition of that witness to be taken, the court
is pending or the Regional Trial Court of the place where the deposition is may order the party giving the notice to pay to such other party the
being taken may order the officer conducting the examination to cease amount of the reasonable expenses incurred by him and his counsel in so
forthwith from taking the deposition, or may limit the scope and manner attending, including reasonable attorney's fees.
of the taking of the deposition, as provided in section 16 of this Rule. If
the order made terminates the examination, it shall be resumed thereafter Sec. 23 and 24: are instances where deposition does not take place either
only upon the order of the court in which the action is pending. Upon by failure of said party to attend or by failure to serve subpoena upon the
demand of the objecting party or deponent, the taking of the deposition witness, and as such, he would be liable for the reasonable expenses of travel
shall be suspended for the time necessary to make a notice for an order. including attorney’s fees to the other party attending such deposition.
In granting or refusing such order, the court may impose upon either party
or upon the witness the requirement to pay such costs or expenses as the
Section 25. Deposition upon written interrogatories; service of
court may deem reasonable. notice and of interrogatories. — A party desiring to take the deposition
of any person upon written interrogatories shall serve them upon every
When may motion to terminate or limit examination be granted? other party with a notice stating the name and address of the person who
1. Upon motion or petition of any party or of the deponent; is to answer them and the name or descriptive title and address of the
2. There must be a showing that the examination is being conducted: officer before whom the deposition is to be taken.
a. In bad faith; or
b. In such manner as unreasonably to annoy, embarrass, or oppress Within ten (10) days thereafter, a party so served may serve cross-
the deponent or party. interrogatories upon the party proposing to take the deposition.
Resumption: after an order terminating the examination has been made, it Within five (5) days thereafter, the latter may serve re-direct
may be resumed only upon order of the court in which the action is pending. interrogatories upon a party who has served cross-interrogatories.
Section 19. Submission to witness; changes; signing. — When the Within three (3) days after being served with re-direct interrogatories, a
testimony is fully transcribed, the deposition shall be submitted to the party may serve recross-interrogatories upon the party proposing to
witness for examination and shall be read to or by him, unless such take the deposition.
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall Section 26. Officers to take responses and prepare record. — A
be entered upon the deposition by the officer with a statement of the copy of the notice and copies of all interrogatories served shall be delivered
reasons given by the witness for making them. The deposition shall then by the party taking the deposition to the officer designated in the notice,
be signed by the witness, unless the parties by stipulation waive the who shall proceed promptly, in the manner provided by sections 17, 19
signing or the witness is ill or cannot be found or refuses to sign. If the and 20 of this Rule, to take the testimony of the witness in response to
deposition is not signed by the witness, the officer shall sign it and state
Cesar Nickolai F. Soriano Jr.
38 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
the interrogatories and to prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the interrogatories received Which court has jurisdiction? RTC. Not capable of pecuniary estimation.
by him.
Section 2. Contents of petition. — The petition shall be entitled in the
Section 27. Notice of filing and furnishing copies. — When a name of the petitioner and shall show:
deposition upon interrogatories is filed, the officer taking it shall promptly (a) that the petitioner expects to be a party to an action in a court of
give notice thereof to all the parties, and may furnish copies to them or to the Philippines but is presently unable to bring it or cause it to be brought;
the deponent upon payment of reasonable charges therefor. (b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and
Section 28. Order for the protection of parties and deponents. — his reasons for desiring to perpetuate it;
After the service of the interrogatories and prior to the taking of the (d) the names or a description of the persons he expects will be adverse
testimony of the deponent, the court in which the action is pending, on parties and their addresses so far as known; and
motion promptly made by a party or a deponent, and for good cause (e) the names and addresses of the persons to be examined and the
shown, may make any order specified in sections 15, 16 and 18 of this substance of the testimony which he expects to elicit from each,
Rule which is appropriate and just or an order that the deposition shall not
be taken before the officer designated in the notice or that it shall not be and shall ask for an order authorizing the petitioner to take the depositions
taken except upon oral examination. of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.
Section 29. Effect of errors and irregularities in depositions. —
(a) As to notice. — All errors and irregularities in the notice for taking a Section 3. Notice and service. — The petitioner shall serve a notice
deposition are waived unless written objection is promptly served upon each person named in the petition as an expected adverse party,
upon the party giving the notice. together with a copy of the petition, stating that the petitioner will apply
(b) As to disqualification of officer. — Objection to taking a deposition to the court, at a time and place named therein, for the order described in
because of disqualification of the officer before whom it is to be taken is the petition. At least twenty (20) days before the date of the
waived unless made before the taking of the deposition begins or hearing, the court shall cause notice thereof to be served on the parties
as soon thereafter as the disqualification becomes known or and prospective deponents in the manner provided for service of
could be discovered with reasonable diligence. summons.
(c) As to competency or relevancy of evidence. — Objections to the
competency of witness or the competency, relevancy, or materiality of Section 4. Order and examination. — If the court is satisfied that the
testimony are not waived by failure to make them before or during perpetuation of the testimony may prevent a failure or delay of
the taking of the deposition, unless the ground, of the objection justice, it shall make an order designating or describing the persons
is one which might have been obviated or removed if presented whose deposition may be taken and specifying the subject matter of the
at that time. examination and whether the depositions shall be taken upon oral
(d) As to oral examination and other particulars. — Errors and examination or written interrogatories. The depositions may be taken in
irregularities occurring at the oral examination in the manner of taking the accordance with Rule 23 before the hearing.
deposition in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties and errors of any kind which Section 5. Reference to court. — For the purpose of applying Rule 23
might be obviated, removed, or cured if promptly prosecuted, are to depositions for perpetuating testimony, each reference therein to the
waived unless reasonable objection thereto is made at the taking court in which the action is pending shall be deemed to refer to the court
of the deposition. in which the petition for such deposition was filed.
(e) As to form of written interrogatories. — Objections to the form of
written interrogatories submitted under sections 25 and 26 of this Rule are Section 6. Use of deposition. — If a deposition to perpetuate testimony
waived unless served in writing upon the party propounding them is taken under this Rule, or if, although not so taken, it would be admissible
within the time allowed for serving succeeding cross or other in evidence, it may be used in any action involving the same subject matter
interrogatories and within three (3) days after service of the last sub-sequently brought in accordance with the provisions of sections 4 and
interrogatories authorized. 5 of Rule 23.
(f) As to manner of preparation. — Errors and irregularities in the
manner in which the testimony is transcribed or the deposition is prepared, Section 7. Depositions pending appeal. — If an appeal has been taken
signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt from a judgment of a court, including the Court of Appeals in proper cases,
with by the officer under sections 17, 19, 20 and 26 of this Rule are or before the taking of an appeal if the time therefor has not expired, the
waived unless a motion to suppress the deposition or some part court in which the judgment was rendered may allow the taking of
thereof is made with reasonable promptness after such defect is, or depositions of witnesses to perpetuate their testimony for in the
with due diligence might have been, ascertained. event of further proceedings in the said court. In such case the party
who desires to perpetuate the testimony may make a motion in the said
RULE 24: Depositions Before Action or Pending Appeal court for leave to take the depositions, upon the same notice and service
thereof as if the action was pending therein. The motion shall state (a) the
Section 1. Depositions before action; petition. — A person who names and addresses of the persons to be examined and the
desires to perpetuate his own testimony or that of another person substance of the testimony which he expects to elicit from each, and (b)
regarding any matter that may be cognizable in any court of the Philippines the reason for perpetuating their testimony. If the court finds that the
may file a verified petition in the court of the place of the residence of perpetuation of the testimony is proper to avoid a failure or delay of justice,
any expected adverse party. it may make an order allowing the deposition to be taken, and thereupon
the depositions may be taken and used in the same manner and under the
Whose testimony may be perpetuated? Any POSSIBLE witness, which same conditions as are prescribed in these Rules for depositions taken in
may include the one filing the petition or any other person regarding any pending actions.
matter cognizable in any court of the Philippines.
RULE 25: Interrogatories to Parties
Where:
1. If the testimony is that of the petitioner – the court of the place of his Section 1. Interrogatories to parties; service thereof. — Under the
residence; same conditions specified in section 1 of Rule 23, any party desiring to
2. Others – court of the residence of any expected adverse party. elicit material and relevant facts from any adverse parties shall file

Cesar Nickolai F. Soriano Jr.


39 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
and serve upon the latter written interrogatories to be answered by the straying or harassing the adverse party when it takes the latter to the
party served or, if the party served is a public or private corporation or a stand (Afulugencia vs. Metropolitan Bank & Trust Co.)
partnership or association, by any officer thereof competent to testify in
its behalf. RULE 26: Admission by Adverse Party

DEPOSITIONS VS. INTERROGATORIES: Section 1. Request for admission. — At any time after issues have
been joined, a party may file and serve upon any other party a written
DEPOSITIONS INTERROGATORIES request for the admission by the latter of the genuineness of any
Deponent is subject to direct and No such types of examination. The material and relevant document described in and exhibited with
cross-examination (redirect and form only contains a narrative of the request or of the truth of any material and relevant matter of
recross) questions. fact set forth in the request. Copies of the documents shall be delivered
In oral depositions, notice contains The document given to the adverse with the request unless copy have already been furnished.
place, time, name of deponent party already contains the
and officer before deposition is to questions. Distinguished from actionable documents under Rule 8: the
be taken documents under Sec. 1 of Rule 26 are non-actionable documents, this may
Deponent may be a party or not The person to whom the include voluminous documents, delivery receipts, which are evidentiary
interrogatories are addressed matters rather than the basis for the action or defense of a party.
should be a party.
No such requirement. Required if you wish to call the Section 2. Implied admission. — Each of the matters of which an
adverse party to the witness stand admission is requested shall be deemed admitted unless, within a
as well as deposition pending period designated in the request, which shall not be less than fifteen (15)
appeal. days after service thereof, or within such further time as the court may
allow on motion, the party to whom the request is directed files and serves
upon the party requesting the admission a sworn statement either
Section 2. Answer to interrogatories. — The interrogatories shall be denying specifically the matters of which an admission is
answered fully in writing and shall be signed and sworn to by the requested or setting forth in detail the reasons why he cannot
person making them. The party upon whom the interrogatories have been truthfully either admit or deny those matters.
served shall file and serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after service thereof unless Objections to any request for admission shall be submitted to the court by
the court on motion and for good cause shown, extends or shortens the the party requested within the period for and prior to the filing of his sworn
time. statement as contemplated in the preceding paragraph and his compliance
therewith shall be deferred until such objections are resolved, which
resolution shall be made as early as practicable.
Section 3. Objections to interrogatories. — Objections to any
interrogatories may be presented to the court within ten (10) days after
service thereof, with notice as in case of a motion; and answers shall be Upon service of request for admission, the party served may do any
deferred until the objections are resolved, which shall be at as early of the following acts:
a time as is practicable. (a) he may admit each of the matters of which an admission is requested, in
which case, he need not file an answer;
(b) he may admit the truth of the matters of which admission is requested by
Section 4. Number of interrogatories. — No party may, without
serving upon the party requesting a written admission of such matters within
leave of court, serve more than one set of interrogatories to be
the period stated in the request, which must not be less than ten (10) days
answered by the same party.
after service, or within such further time as the court may allow on motion
and notice;
Section 5. Scope and use of interrogatories. — Interrogatories may
(c) he may file a sworn statement. denying specifically the matter of which an
relate to any matters that can be inquired into under section 2 of
admission is requested; or,
Rule 23, and the answers may be used for the same purposes
(d) he may file a sworn statement setting forth in detail the reasons why he
provided in section 4 of the same Rule.
cannot truthfully either admit or deny the matters of which an admission is
requested.
Section 6. Effect of failure to serve written interrogatories. —
Unless thereafter allowed by the court for good cause shown and to Failure to specifically deny will be deemed an admission: Petitioner
prevent a failure of justice, a party not served with written interrogatories failed to submit the required answer within the period. The matters set forth
may not be compelled by the adverse party to give testimony in open in the request were therefore deemed admitted by petitioner,
court, or to give a deposition pending appeal.
The burden of affirmative action is on the party upon whom notice is served
General Rule: A party not served with written interrogatories may not be to avoid the admission rather than upon the party seeking the
compelled by the adverse party to give testimony in open court, or to give a admission. Hence, when petitioner failed to reply to a request to admit, it may
deposition pending appeal. Exceptions: unless allowed by court for good not argue that the adverse party has the burden of proving the facts sought
cause shown and to prevent a failure of justice. to be admitted. Petitioner's silence is an admission of the facts stated in the
request. (Allied Agri-Business Development Co. vs. CA)
Rationale:
1. To prevent fishing expeditions and needless delays; it is there If the allegations are deemed admitted, summary judgment may be
to maintain order and facilitate the conduct of trial. It will be had: if the adverse party fails to specifically deny by failure to reply to the
presumed that a party who does not serve written interrogatories on the request to admit, no questions of fact will be in issue since the material
adverse party beforehand will most likely be unable to elicit facts useful allegations of the complaint are not disputed. As such, summary judgment
to its case if it later opts to call the adverse party to the witness stand may be properly granted. (Allied Agri-Business Development Co. vs. CA)
as its witness. Instead, the process could be treated as a fishing
expedition or an attempt at delaying the proceedings; it produces no
significant result that a prior written interrogatories might bring. Section 3. Effect of admission. — Any admission made by a party
2. By requiring prior written interrogatories, the court may limit the pursuant to such request is for the purpose of the pending action only and
inquiry to what is relevant, and thus prevent the calling party from shall not constitute an admission by him for any other purpose
nor may the same be used against him in any other proceeding.
Cesar Nickolai F. Soriano Jr.
40 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 4. Waiver of privilege. — By requesting and obtaining a report
Section 4. Withdrawal. — The court may allow the party making an of the examination so ordered or by taking the deposition of the examiner,
admission under the Rule, whether express or implied, to withdraw or the party examined waives any privilege he may have in that action or any
amend it upon such terms as may be just. other involving the same controversy, regarding the testimony of every
other person who has examined or may thereafter examine him in respect
Section 5. Effect of failure to file and serve request for admission. of the same mental or physical examination.
— Unless otherwise allowed by the court for good cause shown and to
prevent a failure of justice a party who fails to file and serve a request for Waiver: where a party examined requests and obtains a report on the results
admission on the adverse party of material and relevant facts at issue of the examination, the consequences are:
which are, or ought to be, within the personal knowledge of the latter, 1. He has to furnish the other party a copy of the report of any previous or
shall not be permitted to present evidence on such facts. subsequent examination of the same physical and mental condition; and
2. He waives any privilege he may have in that action or any other involving
RULE 27: Production or Inspection of Documents or Things the same controversy regarding the testimony of any other person who
has so examined him or may thereafter examine him.
Section 1. Motion for production or inspection; order. — Upon
motion of any party showing good cause therefor, the court in which an RULE 29: Refusal to Comply with Modes of Discovery
action is pending may (a) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the moving Section 1. Refusal to answer. — If a party or other deponent refuses
party, of any designated documents, papers, books, accounts, letters, to answer any question upon oral examination, the examination may be
photographs, objects or tangible things, not privileged, which constitute or completed on other matters or adjourned as the proponent of the question
contain evidence material to any matter involved in the action and which may prefer. The proponent may thereafter apply to the proper court of the
are in his possession, custody or control, or (b) order any party to permit place where the deposition is being taken, for an order to compel an
entry upon designated land or other property in his possession or control answer. The same procedure may be availed of when a party or a witness
for the purpose of inspecting, measuring, surveying, or photographing the refuses to answer any interrogatory submitted under Rules 23 or 25.
property or any designated relevant object or operation thereon. The order
shall specify the time, place and manner of making the inspection and If the application is granted, the court shall require the refusing party or
taking copies and photographs, and may prescribe such terms and deponent to answer the question or interrogatory and if it also finds that
conditions as are just. the refusal to answer was without substantial justification, it may require
the refusing party or deponent or the counsel advising the refusal, or both
Production of documents: affords more opportunity for discovery than a of them, to pay the proponent the amount of the reasonable expenses
subpoena duces tecum as, in the latter, the documents are brought to the incurred in obtaining the order, including attorney's fees.
court for the first time.
If the application is denied and the court finds that it was filed without
Inspection of land and other real property: avoids the need for ocular substantial justification, the court may require the proponent or the
inspection by the court. counsel advising the filing of the application, or both of them, to pay to
the refusing party or deponent the amount of the reasonable expenses
Criminal Cases: motions for production or inspection of documents are incurred in opposing the application, including attorney's fees.
governed by Sec. 10 of Rule 116 and may be availed of only by the accused
generally during the pendency of the case. Section 2. Contempt of court. — If a party or other witness refuses to
be sworn or refuses to answer any question after being directed to do so
RULE 28: Physical and Mental Examination of Persons by the court of the place in which the deposition is being taken, the refusal
may be considered a contempt of that court.
Section 1. When examination may be ordered. — In an action in
which the mental or physical condition of a party is in Section 3. Other consequences. — If any party or an officer or
controversy, the court in which the action is pending may in its discretion managing agent of a party refuses to obey an order made under section 1
order him to submit to a physical or mental examination by a physician. of this Rule requiring him to answer designated questions, or an order
under Rule 27 to produce any document or other thing for inspection,
Patient-physician privilege: Physical and mental examination of person copying, or photographing or to permit it to be done, or to permit entry
serve as an exception from the privilege, i.e., by order of the court. Moreover, upon land or other property or an order made under Rule 28 requiring him
such examination is not necessary to treat or cure the patient but to assess to submit to a physical or mental examination, the court may make such
the extent of the injury. orders in regard to the refusal as are just, and among others the following:

Section 2. Order for examination. — The order for examination may (a) An order that the matters regarding which the questions were asked,
be made only on motion for good cause shown and upon notice to the or the character or description of the thing or land, or the contents of the
party to be examined and to all other parties, and shall specify the time, paper, or the physical or mental condition of the party, or any other
place, manner, conditions and scope of the examination and the person or designated facts shall be taken to be established for the purposes of the
persons by whom it is to be made. action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
Section 3. Report of findings. — If requested by the party examined, designated claims or defenses or prohibiting him from introducing in
the party causing the examination to be made shall deliver to him a copy evidence designated documents or things or items of testimony, or from
of a detailed written report of the examining physician setting out his introducing evidence of physical or mental condition;
findings and conclusions. After such request and delivery, the party (c) An order striking out pleadings or parts thereof, or staying further
causing the examination to be made shall be entitled upon request to proceedings until the order is obeyed, or dismissing the action or
receive from the party examined a like report of any examination, proceeding or any part thereof, or rendering a judgment by default against
previously or thereafter made, of the same mental or physical condition. the disobedient party; and
If the party examined refuses to deliver such report, the court on motion (d) In lieu of any of the foregoing orders or in addition thereto, an order
and notice may make an order requiring delivery on such terms as are just, directing the arrest of any party or agent of a party for disobeying any of
and if a physician fails or refuses to make such a report the court may such orders except an order to submit to a physical or mental examination.
exclude his testimony if offered at the trial.

Cesar Nickolai F. Soriano Jr.


41 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 4. Expenses on refusal to admit. — If a party after being counsel at the trial is indispensable and that the character of his
served with a request under Rule 26 to admit the genuineness of any illness is such as to render his non-attendance excusable. (5a, R22)
document or the truth of any matter of fact serves a sworn denial thereof
and if the party requesting the admissions thereafter proves the Section 5. Order of trial. — Subject to the provisions of section 2 of Rule
genuineness of such document or the truth of any such matter of fact, he 31, and unless the court for special reasons otherwise directs, the trial shall
may apply to the court for an order requiring the other party to pay him be limited to the issues stated in the pre-trial order and shall proceed as
the reasonable expenses incurred in making such proof, including follows:
attorney's fees. Unless the court finds that there were good reasons for (a) The plaintiff shall adduce evidence in support of his complaint;
the denial or that admissions sought were of no substantial importance, (b) The defendant shall then adduce evidence in support of his defense,
such order shall be issued. (4a) counterclaim, cross-claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense,
Section 5. Failure of party to attend or serve answers. — If a party counterclaim, cross-claim and fourth-party complaint;
or an officer or managing agent of a party wilfully fails to appear before (d) The fourth-party, and so forth, if any, shall adduce evidence of the
the officer who is to take his deposition, after being served with a proper material facts pleaded by them;
notice, or fails to serve answers to interrogatories submitted under Rule (e) The parties against whom any counterclaim or cross-claim has been
25 after proper service of such interrogatories, the court on motion and pleaded, shall adduce evidence in support of their defense, in the order to
notice, may strike out all or any part of any pleading of that party, or be prescribed by the court;
dismiss the action or proceeding or any part thereof, or enter a judgment (f) The parties may then respectively adduce rebutting evidence only,
by default against that party, and in its discretion, order him to pay unless the court, for good reasons and in the furtherance of justice,
reasonable expenses incurred by the other, including attorney's fees. permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted
Section 6. Expenses against the Republic of the Philippines. — for decision, unless the court directs the parties to argue or to submit their
Expenses and attorney's fees are not to be imposed upon the Republic of respective memoranda or any further pleadings.
the Philippines under this Rule. If several defendants or third-party defendants, and so forth, having
separate defenses appear by different counsel, the court shall determine
RULE 30: Trial the relative order of presentation of their evidence. (1a, R30)

Section 1. Notice of Trial. — Upon entry of a case in the trial calendar, Reverse Trial: when the defendant or accused (in a criminal case) interposes
the clerk shall notify the parties of the date of its trial in such manner as an affirmative defense (or claims a justifying/exempting circumstance), the
shall ensure his receipt of that notice at least five (5) days before such order of trial is reversed.
date. (2a, R22)
E.g., in a criminal proceeding for murder, the accused admitted killing the
Section 2. Adjournments and postponements. — A court may victim but interposed self-defense. The prosecution need not present evidence
adjourn a trial from day to day, and to any stated time, as the expeditious to establish that the accused killed the victim since this is already admitted.
and convenient transaction of business may require, but shall have no The accused will present evidence as to the existence of the elements of the
power to adjourn a trial for a longer period than one month for each justifying circumstance of self-defense.
adjournment nor more than three months in all, except when authorized
in writing by the Court Administrator, Supreme Court. (3a, R22) After this, the prosecution need not present evidence in chief, what they will
present is rebuttal evidence to destroy the elements of self-defense.
Length of adjournment: no longer than a period of one month for each
adjournment nor more than 3 months in all, EXCEPT when authorized in Section 6. Agreed statement of facts. — The parties to any action may
writing by the Court Administrator of the Supreme Court. agree, in writing, upon the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon, without the introduction of
Grounds for postponement: evidence.
1. Unavailability of evidence – upon showing the materiality or
relevancy of such evidence and that due diligence has been used to If the parties agree only on some of the facts in issue, the trial shall be
procure it. held as to the disputed facts in such order as the court shall prescribe. (2a,
R30)
EXCEPT: when the adverse party admits the facts to be given in
evidence, the trial shall not be postponed, even if he objects or reserves Section 7. Statement of judge. — During the hearing or trial of a case
the right to object to their admissibility. any statement made by the judge with reference to the case, or to any of
the parties, witnesses or counsel, shall be made of record in the
Section 3. Requisites of motion to postpone trial for stenographic notes. (3a, R30)
absence of evidence. — A motion to postpone a trial on the
ground of absence of evidence can be granted only upon affidavit Section 8. Suspension of actions. — The suspension of actions shall
showing the materiality or relevancy of such evidence, and that due be governed by the provisions of the Civil Code. (n)
diligence has been used to procure it. But if the adverse party admits
the facts to be given in evidence, even if he objects or reserves the Section 9. Judge to receive evidence; delegation to clerk of court.
right to object to their admissibility, the trial shall not be postponed. — The judge of the court where the case is pending shall personally receive
(4a, R22; Bar Matter No. 803, 21 July 1998) the evidence to be adduced by the parties. However, in default or ex
parte hearings, and in any case where the parties agree in writing, the
court may delegate the reception of evidence to its clerk of court who is a
2. Unavailability of party or counsel – illness of party or counsel, when member of the bar. The clerk of court shall have no power to rule on
such party’s presence at the trial is indispensable and the character of objections to any question or to the admission of exhibits, which objections
his illness is such as to render his non-attendance excusable. shall be resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing. (n)
Section 4. Requisites of motion to postpone trial for illness
of party or counsel. — A motion to postpone a trial on the ground RULE 31: Consolidation or Severance
of illness of a party or counsel may be granted if it appears upon
affidavit or sworn certification that the presence of such party or

Cesar Nickolai F. Soriano Jr.


42 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 1. Consolidation. — When actions involving a common question Neither party has an absolute right to have a separate trial of an issue; hence,
of law or fact are pending before the court, it may order a joint hearing or the motion to that effect should be allowed only to avoid prejudice, further
trial of any or all the matters in issue in the actions; it may order all the convenience, promote justice, and give a fair trial to all parties
actions consolidated, and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay. (1) GENERAL RULE: is having all the issues in every case tried at one
time, since a "single trial will generally lessen the delay, expense, and
Purpose: to obtain justice at the least expense and avoid vexation to the inconvenience to the parties and the courts."
litigants and avoid multiplicity of suits.
Exceptions to the general rule are permitted only when there are:
Kinds of Consolidation: In the context of legal procedure, the term (1) extraordinary grounds for conducting separate trials on different issues
"consolidation" is used in three different senses: raised in the same case,
1. Quasi-Consolidation: where all except one of several actions are (2) or when separate trials of the issues will avoid prejudice, or
stayed until one is tried, in which case the judgment in the one trial is (3) when separate trials of the issues will further convenience, or
conclusive as to the others. This is not actually consolidation but is (4) when separate trials of the issues will promote justice, or
referred to as such. (5) when separate trials of the issues will give a fair trial to all parties.
2. Actual Consolidation: where several actions are combined into one, (Metropolitan Bank and Trust Company vs. Sandoval)
lose their separate identity, and become a single action in which a single
judgment is rendered. This is illustrated by a situation where several RULE 32: Trial by Commissioner
actions are pending between the same parties stating claims which might
have been set out originally in one complaint. Commissioner: includes a referee, auditor and an examiner.
3. Consolidation for Trial: where several actions are ordered to be tried
together but each retains its separate character and requires the entry Where Rules provide for Commissioners:
of a separate judgment. This type of consolidation does not merge the 1. Expropriation cases (Sec. 5 to 8 of Rule 67)
suits into a single action, or cause the parties to one action to be parties 2. Judicial Partition (Sec. 3 to 7 of Rule 69)
to the other. (Republic vs. Heirs of Enrique Oribello Jr.)
Matters which may be referred to the Commissioners:
Decision on one case consolidated with others for trial may be 1. Any matter – if reference is made by consent of the parties:
appealed separately: In cases consolidated for trial, a decision on one
action, which remains separate and distinct from the other, may be appealed Section 1. Reference by consent. — By written consent of both parties,
separately while the other one is still pending. Severance is not necessary. the court may order any or all of the issues in a case to be referred to a
Since each action does not lose its distinct character, severance of one action commissioner to be agreed upon by the parties or to be appointed by the
from the other is not necessary to appeal a judgment already rendered in one court. As used in these Rules, the word "commissioner" includes a referee,
action. (Republic vs. Heirs of Oribello, Jr.) an auditor and an examiner. (1a, R33)

Consolidation is not a remedy for forum-shopping: the consolidation of 2. Limited – if not made through consent, limited to the following:
cases was never intended to cure the defect of forum-shopping. If one litigant
has filed multiple suits involving the same parties for the same cause of action, Section 2. Reference ordered on motion. — When the parties do not
the consolidation of these suits is not the correct palliative. These suits should consent, the court may, upon the application of either or of its own motion,
instead be dismissed on the ground of forum-shopping. (Mega-Land direct a reference to a commissioner in the following cases:
Resources and Development Corporation vs. Tinga, GR No. 156211, July 31, (a) When the trial of an issue of fact requires the examination of a long
2007) account on either side, in which case the commissioner may be directed to
hear and report upon the whole issue or any specific question involved
Court with the lowest docket number: in cases filed separately, the cases therein;
shall be consolidated in the court with the lowest docket number. (b) When the taking of an account is necessary for the information of the
court before judgment, or for carrying a judgment or order into effect.
Where to file motion: in all courts where the actions to be consolidated are (c) When a question of fact, other than upon the pleadings, arises upon
pending. motion or otherwise, in any stage of a case, or for carrying a judgment or
order into effect. (2a, R33)
Even if courts are in different locations: in the case of Zulueta vs. Asia
Brewery, Inc., the Court allowed consolidation even if one case is in IloIlo and ORDER OF THE COURT
the other one is in Makati. As long as the two cases involving the same parties
and affecting closely related subject matters, they must be ordered Section 3. Order of reference; powers of the commissioner. —
consolidated and jointly tried in court, where the earlier case was filed. The When a reference is made, the clerk shall forthwith furnish the
consolidation of cases is proper when they involve the resolution of common commissioner with a copy of the order of reference. The order may specify
questions of law or facts. or limit the powers of the commissioner, and may direct him to report only
upon particular issues, or to do or perform particular acts, or to receive
Section 2. Separate trials. — The court, in furtherance of convenience and report evidence only and may fix the date for beginning and closing
or to avoid prejudice, may order a separate trial of any claim, cross-claim, the hearings and for the filing of his report. Subject to other specifications
counterclaim, or third-party complaint, or of any separate issue or of any and limitations stated in the order, the commissioner has and shall exercise
number of claims, cross-claims, counterclaims, third-party complaints or the power to regulate the proceedings in every hearing before him and to
issues. (2a) do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue subpoenas and
Only when clearly necessary and there are special and persuasive subpoenas duces tecum, swear witnesses, and unless otherwise provided
reasons: the general practice is to try all the issues in a case at one time; in the order of reference, he may rule upon the admissibility of evidence.
and it is only in exceptional instances where there are special and persuasive The trial or hearing before him shall proceed in all respects as it would if
reasons for departing from this practice that distinct causes of action asserted held before the court. (3a, R33)
in the same case may be made the subjects of separate trials. Whether this
reasonably may be done in any particular instance rests largely in the court’s Section 4. Oath of commissioner. — Before entering upon his duties
discretion. the commissioner shall be sworn to a faithful and honest performance
thereof. (14, R33)

Cesar Nickolai F. Soriano Jr.


43 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 5. Proceedings before commissioner. — Upon receipt of the When filed: after the plaintiff has completed the presentation of his
order of reference and unless otherwise provided therein, the evidence.
commissioner shall forthwith set a time and place for the first meeting of
the parties or their counsel to be held within ten (10) days after the date Rationale: The defendant is permitted, without waiving his right to offer
of the order of reference and shall notify the parties or their counsel. (5a, evidence in the event that his motion is not granted, to move for a dismissal
R33) (i.e., demur to the plaintiffs evidence) on the ground that upon the facts as
thus established and the applicable law, the plaintiff has shown no right to
Section 6. Failure of parties to appear before commissioner. — If relief. (Radiowealth Finance Company vs. Sps. Del Rosario)
a party fails to appear at the time and place appointed, the commissioner
may proceed ex parte or, in his discretion, adjourn the proceedings to a If Reversed, Duty of the Appellate Court: is to render judgment on the
future day, giving notice to the absent party or his counsel of the merits based on the evidence of the plaintiff; not to remand the case to the
adjournment. (6a, R33) trial court for further proceedings.

Section 7. Refusal of witness. — The refusal of a witness to obey a In other words, defendants who present a demurrer to the plaintiff’s evidence
subpoena issued by the commissioner or to give evidence before him, shall retain the right to present their own evidence, if the trial court disagrees with
be deemed a contempt of the court which appointed the commissioner. them; if the trial court agrees with them, but on appeal, the appellate court
(7a R33) disagrees with both of them and reverses the dismissal order, the defendants
lose the right to present their own evidence. The appellate court shall, in
Section 8. Commissioner shall avoid delays. — It is the duty of the addition, resolve the case and render judgment on the merits, inasmuch as a
commissioner to proceed with all reasonable diligence. Either party, on demurrer aims to discourage prolonged litigations. (Radiowealth Finance
notice to the parties and commissioner, may apply to the court for an order Company vs. Sps. Del Rosario)
requiring the commissioner to expedite the proceedings and to make his
report. (8a, R33) Demurrer in Criminal Cases:

Rule 119, Sec. 23. Demurrer to evidence. – After the prosecution


Section 9. Report of commissioner. — Upon the completion of the trial
or hearing or proceeding before the commissioner, he shall file with the rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the
court his report in writing upon the matters submitted to him by the order
of reference. When his powers are not specified or limited, he shall set prosecution the opportunity to be heard or (2) upon demurrer to evidence
filed by the accused with or without leave of court.
forth his findings of fact and conclusions of law in his report. He shall attach
thereto all exhibits, affidavits, depositions, papers and the transcript, if
If the court denies the demurrer to evidence filed with leave of court, the
any, of the testimonial evidence presented before him. (9a, R33)
accused may adduce evidence in his defense. When the demurrer to
evidence is filed without leave of court, the accused waives the right to
Section 10. Notice to parties of the filing of report. — Upon the filing
present evidence and submits the case for judgment on the basis of the
of the report, the parties shall be notified by the clerk, and they shall be
evidence for the prosecution.
allowed ten (10) days within which to signify grounds of objections to the
findings of the report, if they so desire. Objections to the report based
The motion for leave of court to file demurrer to evidence shall specifically
upon grounds which were available to the parties during the proceedings
state its grounds and shall be filed within a non-extendible period of five
before the commissioner, other than objections to the findings and
(5) days after the prosecution rests its case. The prosecution may oppose
conclusions therein, set forth, shall not be considered by the court unless
the motion within a non-extendible period of five (5) days from its receipt.
they were made before the commissioner. (10, R33)
If leave of court is granted, the accused shall file the demurrer to evidence
Section 11. Hearing upon report. — Upon the expiration of the period within a non-extendible period of ten (10) days from notice. The
of ten (10) days referred to in the preceding section, the report shall be prosecution may oppose the demurrer to evidence within a similar period
set for hearing, after which the court shall issue an order adopting, from its receipt.
modifying, or rejecting the report in whole or in part, or recommitting it
with instructions, or requiring the parties to present further evidence The order denying the motion for leave of court to file demurrer to
before the commissioner or the court. (11a, R33) evidence or the demurrer itself shall not be reviewable by appeal or by
certiorari before judgment.
Section 12. Stipulations as to findings. — When the parties stipulate
that a commissioner's findings of fact shall be final, only questions of law Requirements to determine whether the pleading is a demurrer to
shall thereafter be considered. (12a, R33) evidence or motion to dismiss: the Court must consider:
1. the allegations in it made in good faith;
Section 13. Compensation of commissioner. — The court shall allow 2. the stage of the proceeding at which it is filed; and
the commissioner such reasonable compensation as the circumstances of 3. the primary objective of the party filing it.
the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires. (13, R33) If the accused invokes his right to speedy trial after the prosecution has
dragged the case for a long time, even though in his pleading he made
VII. RULE 33 to RULE 36 remarks as to the insufficiency of evidence, the same cannot be regarded as
a demurrer. Moreover, a demurrer assumes that the prosecution has already
RULE 33: Demurrer to Evidence rested its case. In a case where the prosecution made a formal offer of
evidence but the same has not been ruled upon, or even if already ruled upon,
Section 1. Demurrer to evidence. — After the plaintiff has completed but the prosecution has not rested its case, the demurrer would have been
the presentation of his evidence, the defendant may move for dismissal on improper. (see Cabador vs. People, citing Enojas vs. COMELEC)
the ground that upon the facts and the law the plaintiff has shown no right
to relief. If his motion is denied he shall have the right to present evidence. If Demurrer is granted: the order granting demurrer to evidence is a
If the motion is granted but on appeal the order of dismissal is reversed resolution of the case on the merits, and amounts to an acquittal. Any further
he shall be deemed to have waived the right to present evidence. (1a, prosecution of the accused would then violate the proscription on double
R35) jeopardy. (People vs. Sumingwa)

Effect if Demurrer is DENIED:


Cesar Nickolai F. Soriano Jr.
44 Arellano University School of Law 2011-0303
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1. With Leave of Court: the accused may adduce evidence in his defense. if GRANTED - the case is dismissed; if GRANTED - accused is acquitted;
2. Without Leave of Court: the accused waives the right to present order of dismissal is a FINAL order, order of acquittal is NOT appealable;
evidence and submits the case for judgment on the basis of the evidence hence appealable otherwise, it will be a violation of his
of the prosecution. right against double jeopardy

Leave of Court is DENIED: once leave of court is denied, the only right left If plaintiff appeals and the appellate
to the accused is to present his evidence. Otherwise, if he insists on filing a court REVERSES - defendant is no
demurrer after denial of his motion, he loses his right to present evidence on longer allowed to present evidence
his behalf. (Bernardo vs. CA)

Remedy if denied: generally, under Sec. 23 of Rule 119, last paragraph, no RULE 34: Judgment on the Pleadings
appeal or certiorari may be had. However, as held in Singian Jr. vs.
Sandiganbayan, the resolution of a demurrer to evidence should be left to the Section 1. Judgment on the pleadings. — Where an answer fails to
exercise of sound judicial discretion. A lower court’s order of denial shall not tender an issue, or otherwise admits the material allegations of the adverse
be disturbed, that is, the appellate courts will not review the prosecution’s party's pleading, the court may; on motion of that party, direct judgment
evidence and precipitately decide whether such evidence has established the on such pleading. However, in actions for declaration of nullity or
guilt of the accused beyond a reasonable doubt, unless accused has annulment of marriage or for legal separation, the material facts alleged
established that such judicial discretion has been gravely abused, there by in the complaint shall always be proved. (1a, R19)
amounting to a lack or excess of jurisdiction. Mere allegations of such abuse
will not suffice. When may a party ask for a judgment on the pleadings:
1. When an answer fails to tender an issue; or
When matters raised in the demurrer are best tackled in a full blown 2. Admits of the material allegations of the adverse party’s pleading.
trial, denial of the same is proper: the presence or absence of the
elements of the crime is evidentiary in nature and is a matter of defense that Rule 34 speaks of “answer”, does this mean that only a plaintiff may
may be passed upon after a full-blown trial on the merits," and "the validity ask for a judgment on the pleadings? No. A defendant may ask for a
and merits of a party's defense or accusation, as well as admissibility of judgment on the pleadings with regards the answer on permissive
testimonies and evidence, are better ventilated during trial proper." counterclaim which likewise requires an answer because allegations therein
Petitioner's claims and defenses in his Demurrer to Evidence can best be are deemed controverted.
tackled during trial. (Singian Jr. vs. Sandiganbayan)
Judgment on the Pleadings vs. Summary Judgments:
4th Paragraph: no longer applicable since the accused is required to submit
the demurrer together with the motion for leave in accordance with Rule 15, JUDGMENT ON THE SUMMARY JUDGMENT
Sec. 9. PLEADINGS
Judgment is based solely on the Judgment is based on the
Discretionary upon the court to grant leave; once denied, pleadings, i.e., the complaint, the pleadings, affidavits, depositions
presentation of evidence is not discretionary: the grant of a LEAVE is answer and sometimes the reply. and admissions.
discretionary upon the court. But if the same has been denied, the Totally bereft of an issue There is an issue, only that the
PRESENTATION OF EVIDENCE is not discretionary. The court no longer has
issue is not genuine.
discretion to allow the accused to adduce evidence, the only recourse left is
Available in all cases, except Available only in actions to recover
for the court to decide the case on the basis of the evidence presented by the
annulment of marriage, declaration debt, for liquidated sum of money
prosecution. (see Bernardo vs. CA)
of nullity and legal separation or declaratory relief
Requires compliance with the 3-day Requires 10-day prior notice
CIVIL VS. CRIMINAL DEMURRER
notice rule
Similarities:
In the Allied case which illustrates a summary judgment, there is a request
1. Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading
for admission but the request was never answered. Thus, the admissions
under the Rules on Summary Proceedings because (1) it is there to
sought were deemed admitted and there was no longer an issue. Therefore,
similarly expedite the proceedings and (2) it is not among those
a summary judgment was proper. (see Allied Agri-Business case)
mentioned under prohibited pleadings;
2. The ground is the same, that is, INSUFFICIENCY OF EVIDENCE;
RULE 35: Summary Judgments
3. Only available AFTER the presentation of the evidence of the plaintiff or
prosecution, as the case may be;
Summary or accelerated judgment is a procedural technique aimed at
4. Court may either grant or deny the Demurrer
weeding out sham claims or defenses at an early stage of litigation thereby
avoiding the expense and loss of time involved in a trial.
Differences:
When proper: summary judgment is appropriate when there are no genuine
CIVIL DEMURRER CRIMINAL DEMURRER
issues of fact which call for the presentation of evidence in a full-blown trial.
More difficult to file because the Easier to file because the prosecution
Even if on their face the pleadings appear to raise issues, when the affidavits,
plaintiff is only required to present is required to prove the guilt of
depositions and admissions show that such issues are not genuine, then
his case by preponderance of accused beyond reasonable doubt
summary judgment as prescribed by the Rules must ensue as a matter of law.
evidence
The determinative factor, therefore, in a motion for summary judgment, is
the presence or absence of a genuine issue as to any material fact.
If DENIED - plaintiff presents if DENIED - distinguish whether
evidence there had been prior leave of court Duty of the court is limited to determining whether there is an issue
(1) if with leave, accused may
of fact: The aforecited rule does not vest in the trial court jurisdiction to
proceed with presentation of his summarily try the issues on depositions and affidavits but gives it limited
evidence; (2) if without leave,
authority to render summary judgment only when there is no genuine issue
accused can no longer present his of material fact at bar. Upon a motion for summary judgment, the sole
evidence
function of the court is to determine whether or not there is an issue of fact
to be tried. (Garcia vs. CA)

Cesar Nickolai F. Soriano Jr.


45 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
forth such facts as would be admissible in evidence, and shall show
Requisites: For a summary judgment to be proper, the movant must affirmatively that the affiant is competent to testify to the matters stated
establish two requisites: therein. Certified true copies of all papers or parts thereof referred to in
(a) there must be no genuine issue as to any material fact, except for the the affidavit shall be attached thereto or served therewith. (5a, R34)
amount of damages; and
(b) the party presenting the motion for summary judgment must be entitled Section 6. Affidavits in bad faith. — Should it appear to its satisfaction
to a judgment as a matter of law. (Smart Communications vs. Aldecoa) at any time that any of the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of delay, the court shall
1st Requisite: Genuine Issue: is an issue of fact which requires the forthwith order the offending party or counsel to pay to the other party
presentation of evidence as distinguished from a sham, fictitious, contrived or the amount of the reasonable expenses which the filing of the affidavits
false claim. When the facts as pleaded by the parties are disputed or caused him to incur including attorney's fees, it may, after hearing further
contested, proceedings for summary judgment cannot take the place of adjudge the offending party or counsel guilty of contempt. (6a, R34)
trial. (PBCom vs. Go)
RULE 36: Judgments, Final Orders and Entry Thereof
When the facts as pleaded appear uncontested or undisputed, then there is
no real or genuine issue or question as to any fact and summary judgment Final Judgment vs. Interlocutory Order: A final order is one which
called for. On the other hand, where the facts pleaded by the parties are disposes of the whole subject matter or terminates a particular proceeding or
disputed or contested, proceedings for a summary judgment cannot take the action, leaving nothing to be done but to enforce by execution what has been
place of a trial. The evidence on record must be viewed in light most favorable determined. An order or judgment is deemed final if it finally disposes of,
to the party opposing the motion who must be given the benefit of all adjudicates, or determines the rights, or some right or rights of the parties,
favorable inferences as can reasonably be drawn from the evidence. (Smart either on the entire controversy or on some definite and separate branch
Communications vs. Aldecoa) thereof, and concludes them until it is reversed or set aside. Where no issue
is left for future consideration, except the fact of compliance with the terms
2nd Requisite: Entitled as a matter of right: Conclusory assertions are of the order, such order is final and appealable. In contrast, an order is
insufficient to raise an issue of material fact. A party cannot create a genuine interlocutory if it does not finally dispose of the case. (Augusto vs. Risos)
dispute of material fact through mere speculations or compilation of
differences. He may not create an issue of fact through bold assertions, Final vs. Executory Judgment: A judgment may be final but not executory
unsupported contentions and conclusory statements. He must do more than but once a judgment is executory is must necessarily be final, because a final
rely upon allegations but must come forward with specific facts in support of judgment is one where the trial court is left with nothing else to do. The court
a claim. Where the factual context makes his claim implausible, he must come has completed its task and the case has been disposed.
forward with more persuasive evidence demonstrating a genuine issue for
trial. (Smart Communications vs. Aldecoa) But it is not yet executory because the period to appeal or to reconsider or to
retry the case has not expired yet. Only after the expiration of the period for
Section 1. Summary judgment for claimant. — A party seeking to new trial, reconsideration or appeal will the judgment become final and
recover upon a claim, counterclaim, or cross-claim or to obtain a executory.
declaratory relief may, at any time after the pleading in answer thereto
has been served, move with supporting affidavits, depositions or In Rule 36, the final order referred to in here is executory not just final.
admissions for a summary judgment in his favor upon all or any part
thereof. (1a, R34) Immutability of final judgment: a decision that has acquired finality
becomes immutable and unalterable. A final judgment may no longer be
Section 2. Summary judgment for defending party. — A party modified in any respect, even if the modification is meant to correct erroneous
against whom a claim, counterclaim, or cross-claim is asserted or a conclusions of fact or law; and whether it will be made by the court that
declaratory relief is sought may, at any time, move with supporting rendered it or by the highest court in the land.
affidavits, depositions or admissions for a summary judgment in his favor
as to all or any part thereof. (2a, R34) The only exceptions to this rule are the correction of:
1. Clerical errors,
Section 3. Motion and proceedings thereon. — The motion shall be 2. The so-called nunc pro tunc entries which cause no prejudice to any
served at least ten (10) days before the time specified for the hearing. The party – a correction based on the records of the case; and
adverse party may serve opposing affidavits, depositions, or admissions at 3. Void judgments.
least three (3) days before the hearing. After the hearing, the judgment
sought shall be rendered forthwith if the pleadings, supporting affidavits, Section 1. Rendition of judgments and final orders. — A judgment
depositions, and admissions on file, show that, except as to the amount of or final order determining the merits of the case shall be in writing
damages, there is no genuine issue as to any material fact and that the personally and directly prepared by the judge, stating clearly and distinctly
moving party is entitled to a judgment as a matter of law. (3a, R34) the facts and the law on which it is based, signed by him, and filed with
the clerk of the court. (1a)
Section 4. Case not fully adjudicated on motion. — If on motion
under this Rule, judgment is not rendered upon the whole case or for all Requirements for a valid judgments:
the reliefs sought and a trial is necessary, the court at the hearing of the 1. It must be in writing;
motion, by examining the pleadings and the evidence before it and by 2. The judgment must be personally and directly written and signed by the
interrogating counsel shall ascertain what material facts exist without judge;
substantial controversy and what are actually and in good faith 3. The judgment must be entered. Because a judgment which is not
controverted. It shall thereupon make an order specifying the facts that entered has only become final but not executory.
appear without substantial controversy, including the extent to which the 4. That every judgment must state the facts and the law on which its
amount of damages or other relief is not in controversy, and directing such disposition was anchored and based.
further proceedings in the action as are just. The facts so specified shall
be deemed established, and the trial shall be conducted on the The above requirements are not only procedural but likewise constitutional.
controverted facts accordingly. (4a, R34)
Section 2. Entry of judgments and final orders. — If no appeal or
Section 5. Form of affidavits and supporting papers. — Supporting motion for new trial or reconsideration is filed within the time provided in
and opposing affidavits shall be made on personal knowledge, shall set these Rules, the judgment or final order shall forthwith be entered by the
clerk in the book of entries of judgments. The date of finality of the
Cesar Nickolai F. Soriano Jr.
46 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
judgment or final order shall be deemed to be the date of its entry. The action shall proceed as to the remaining claims. In case a separate
record shall contain the dispositive part of the judgment or final order and judgment is rendered the court by order may stay its enforcement until
shall be signed by the clerk, within a certificate that such judgment or final the rendition of a subsequent judgment or judgments and may prescribe
order has become final and executory. (2a, 10, R51) such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered. (5a)
“The date of finality of the judgment or final order shall be deemed
to be the date of its entry”: It means that when the judgment has become Execution of Several and Separate Judgments: is discretionary upon the
executory, the date where the judgment has become executory shall be the court and may be done only with leave of court, under Sec. 2(b) of Rule 39,
date of its entry. (see Sec. 10 of Rule 51) not as a matter of right.

Entry of judgment: An entry of judgment is the recording of the judgment Section 6. Judgment against entity without juridical personality.
by the clerk of court in the book of entries of judgment. — When judgment is rendered against two or more persons sued as an
entity without juridical personality, the judgment shall set out their
If the judgment was rendered by the RTC Manila on January 5, 2005, let us individual or proper names, if known. (6a)
assume that all the parties to that case received a copy of the judgment on
January 10, so the parties have until January 25 (15 days) to file Motion for REMEDIES AGAINST A FINAL JUDGMENT NOT YET EXECUTORY:
New Trial, Motion for Reconsideration, or Appeal. After January 25, the
judgment has become executory. 1. Motion for New Trial (Rule 37)
2. Motion for Reconsideration (Rule 37)
If the clerk of court entered or recorded the judgment on May 15, 2007, the 3. Appeal (Rule 40 to 45)
entry of judgment is January 26. This is what’s meant by the second sentence
of Section 2, so the judgment was entered January 265 and not March 15. New Trial and Reconsideration

Rationale: if the actual recording is the reckoning date, the finality of RULE 37: New Trial or Reconsiderations
judgment and its executory character will depend upon the will of the clerk of
court. Section 1. Grounds of and period for filing motion for new trial or
reconsideration. — Within the period for taking an appeal, the aggrieved
Importance of date of entry of judgment: It is very important because party may move the trial court to set aside the judgment or final order and
there are procedural actions which is counted from its entry of judgment. grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party:
Examples: Judgment can be executed only by motion within a period of 5
years from entry of judgment. Petition for Relief can only be done within a (a) Fraud, accident, mistake or excusable negligence which ordinary
period of 6 months from entry of judgment. prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
Kinds of Judgment: (b) Newly discovered evidence, which he could not, with reasonable
1. Judgment upon compromise; diligence, have discovered and produced at the trial, and which if
2. Judgment upon confession; presented would probably alter the result.
3. Judgment upon the merits;
4. Clarificatory judgment; Within the same period, the aggrieved party may also move for
5. Judgment non pro tunc (now for then); reconsideration upon the grounds that the damages awarded are
6. Judgment sin perjuicio; excessive, that the evidence is insufficient to justify the decision or final
7. Judgment by default (Sec. 3, Rule 9); order, or that the decision or final order is contrary to law. (1a)
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35); When: this is the remedy of the judgment obligor after the judgment has
10. Several judgment (Sec. 4, Rule 36); become final but not executory.
11. Separate judgment (Sec. 5, Rule 36);
12. Special judgment (Sec. 11, Rule 39); Period: The above provision provides that the motion may be filed “within
13. Judgment for specific acts (Sec. 10, Rule 39); the period for taking an appeal.” As such, it may be filed 15 days in case
14. Judgment on demurrer to evidence (Rule 33); appeal is by notice of appeal; or 30 days in case by record of appeal, in both
15. Conditional judgment; cases reckoned from receipt or notice of judgment.
16. Judgment by default; and
17. Final judgment. Motion for Reconsideration: when mandatory: generally a motion for
reconsideration is not mandatory, except in cases of special civil action on
Section 3. Judgment for or against one or more of several parties. certiorari. Thus, it is not an indispensable requirement to avail of the remedy
— Judgment may be given for or against one or more of several plaintiffs of appeal.
and for or against one or more of several defendants. When justice so
demands, the court may require the parties on each side to file adversary Grounds for a Motion for Reconsideration:
pleadings as between themselves and determine their ultimate rights and 1. Excessive award of damages;
obligations. (3) 2. Evidence is insufficient to justify the decision or final order; or
3. Decision or final order is contrary to law.
Section 4. Several judgments. — In an action against several
defendants, the court may, when a several judgment is proper, render Grounds for a Motion for New Trial:
judgment against one or more of them, leaving the action to proceed 1. Fraud, accident, mistake or excusable negligence which ordinary
against the others. (4) prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
Section 5. Separate judgments. — When more than one claim for relief 2. Newly discovered evidence, which he could not, with reasonable
is presented in an action, the court, at any stage, upon a determination of diligence, have discovered and produced at the trial, and which if
the issues material to a particular claim and all counterclaims arising out presented would probably alter the result.
of the transaction or occurrence which is the subject matter of the claim,
may render a separate judgment disposing of such claim. The judgment In criminal proceedings, the grounds do not include FAME under Rule 121:
shall terminate the action with respect to the claim so disposed of and the
Cesar Nickolai F. Soriano Jr.
47 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 2. Grounds for a new trial. — The court shall grant a new 5. there is a failure to utilize available discovery procedures. (see
trial on any of the following grounds: Mendezona vs. Ozamis)
(a) The errors of law or irregularities prejudicial to the substantial
rights of the accused have been committed during the trial; GRANT OF MOTION FOR NEW TRIAL/RECONSIDERATION:
(b) The new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and Section 6. Effect of granting of motion for new trial. — If a new trial
produced at the trial and which if introduced and admitted would is granted in accordance with the provisions of this Rules the original
probably change the judgment. (2a) judgment or final order shall be vacated, and the action shall stand for
trial de novo; but the recorded evidence taken upon the former trial,
Section 3. Ground for reconsideration. — The court shall grant insofar as the same is material and competent to establish the issues, shall
reconsideration on the ground of errors of law or fact in the be used at the new trial without retaking the same. (5a)
judgment, which requires no further proceedings. (3a)
Effect if Motion for New Trial is GRANTED:
Ground for reconsideration is used in a motion for new trial: the 1. Previous judgment is vacated;
motion may be treated as one of reconsideration, and vice versa. 2. Previously admitted evidence remain; no need for retaking them.

FAME: Motion for Reconsideration: judgment is not set aside, but the dispositive
portion, since the grounds for a motion for reconsideration is more of an
When negligence is excusable: There is no hard and fast rule. As to amendment in the dispositive portion.
subject matter, if the same is not that serious. As such, the procedural rules
should not be a deterrent to the proper administration of justice and must SECOND MOTION FOR NEW TRIAL/RECONSIDERATION:
give way to the substantive rights of individuals.
Section 5. Second motion for new trial. — A motion for new trial shall
Mistake: refers to mistake of fact and not mistake of law. This is because include all grounds then available and those not so included shall be
mistake of law amounts to ignorance of the law. As such, to be a ground for deemed waived. A second motion for new trial, based on a ground not
new trial, the mistake must be that of fact or misappreciation of facts. existing nor available when the first motion was made, may be filed within
the time herein provided excluding the time during which the first motion
Accident: those unforeseen, unexpected, or sudden occurrences. had been pending.

Fraud: refers to extrinsic fraud. Extrinsic fraud connotes any fraudulent No party shall be allowed a second motion for reconsideration of a
scheme executed by a prevailing party outside of the trial against the losing judgment or final order (4a, 4, IRG)
party who because of such fraud is prevented from presenting his side of the
case; while an intrinsic fraud refers to acts of a party during the trial which Second Motion for Reconsideration: Generally not allowed, except in the
does not affect the presentation of the case. Supreme Court which can grant even upto a third motion for reconsideration.

Example: The rule rests on the basic tenet of immutability of judgments. "At some point,
Extrinsic Fraud: If A (witness) was paid not to appear before the court for a decision becomes final and executory and, consequently, all litigations must
trial. come to an end." (McBurnie s. Ganzon)
Intrinsic fraud: When the signature of the party was forged.
This is because all the grounds are already existent at the time of filing of the
Why intrinsic fraud is not a ground for new trial: Because you should have first motion for reconsideration, as such it should no longer be allowed
questioned it right there and then but you did not. So you waive your right. following the Omnibus Motion Rule.
For example, during the proceeding, the other party presents a forged
document or a fictitious document and it was admitted. Because right there Second for Motion for New Trial: Ground: only on newly-discovered
and then you should have questioned it but because you didn't question it the evidence. FAME cannot be a ground for a second motion for new trial since
evidence has been admitted, you have considered to have waived your right. they were already present or forms part of the proceeding at the time the first
motion was filed. Again, the second motion based on FAME should not be
Newly discovered evidence: requisites: allowed following the Omnibus Motion Rule.
1. The evidence had been discovered after trial;
2. The evidence could not have been discovered and produced during trial When you file a motion for new trial on the ground of newly-discovered
even with the exercise of reasonable diligence: and evidence for the first time, FAME was already existent. But if you file a motion
3. The evidence is material and not merely corroborative, cumulative or for new trial on the ground of FAME, for the first time and it was denied, it is
impeaching and is of such weight that if admitted, would probably alter possible that you will still file a second motion for new trial on the ground of
the result. (see Mendezona vs. Ozamis, People vs. Li Ka Kim) newly-discovered evidence.

What is material for newly discovered evidence is availability. Such that, if the Second or Third Motion before the SC:
same was already available at the time of trial, this is not newly discovered
evidence but a newly procured one, not a ground for new trial. 1. GENERAL RULE: second and subsequent motions for reconsideration
are prohibited. (Section 2, Rule 52 of the Rules of Court)
Lack of diligence to procure evidence: is exhibited where
1. the newly discovered evidence was necessary or proper under the 2. EXCEPTION: the present Internal Rules of the Supreme Court,
pleadings, and its existence must have occurred to the party in the particularly Section 3, Rule 15 thereof, provides:
course of the preparation of the case, but no effort was made to secure
it; Sec. 3. Second motion for reconsideration. ― The Court shall not
2. there is a failure to make inquiry of persons who were likely to know the entertain a second motion for reconsideration, and any exception to
facts in question, especially where information was not sought from co- this rule can only be granted in the higher interest of justice by
parties; the Court en banc upon a vote of at least two-thirds of its actual
3. there is a failure to seek evidence available through public records; there membership. There is reconsideration "in the higher interest
is a failure to discover evidence that is within the control of the of justice" when the assailed decision is not only legally
complaining party; erroneous, but is likewise patently unjust and potentially
4. there is a failure to follow leads contained in other evidence; and, capable of causing unwarranted and irremediable injury or
Cesar Nickolai F. Soriano Jr.
48 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
damage to the parties. A second motion for reconsideration can testimonial or documentary evidence or to the provisions of law alleged to
only be entertained before the ruling sought to be reconsidered be contrary to such findings or conclusions.
becomes final by operation of law or by the Court’s declaration.
A pro forma motion for new trial or reconsideration shall not toll the
SPECIFIC ILLUSTRATIONS WHEN THE SUPREME COURT reglementary period of appeal. (2a)
ALLOWED A THIRD OR FOURTH MOTION FOR
RECONSIDERATION: Section 3. Action upon motion for new trial or reconsideration. —
1. In Tirazona v. Philippine EDS Techno-Service, Inc. (PET, Inc.), we also The trial court may set aside the judgment or final order and grant a new
explained that a second motion for reconsideration may be allowed in trial, upon such terms as may be just, or may deny the motion. If the court
instances of "extraordinarily persuasive reasons and only finds that excessive damages have been awarded or that the judgment or
after an express leave shall have been obtained." final order is contrary to the evidence or law, it may amend such judgment
2. In Apo Fruits Corporation v. Land Bank of the Philippines, we allowed or final order accordingly. (3a)
a second motion for reconsideration as the issue involved therein
was a matter of public interest, as it pertained to the proper Section 4. Resolution of motion. — A motion for new trial or
application of a basic constitutionally-guaranteed right in the reconsideration shall be resolved within thirty (30) days from the time
government’s implementation of its agrarian reform it is submitted for resolution. (n)
program.
3. It is also recognized that in some instances, the prudent action Section 7. Partial new trial or reconsideration. — If the grounds for
towards a just resolution of a case is for the Court to suspend rules of a motion under this Rule appear to the court to affect the issues as to only
procedure, for "the power of this Court to suspend its own rules a part, or less than an of the matter in controversy, or only one, or less
or to except a particular case from its operations whenever than all, of the parties to it, the court may order a new trial or grant
the purposes of justice require it, cannot be questioned." (De reconsideration as to such issues if severable without interfering with the
Guzman vs. Sandiganbayan) judgment or final order upon the rest. (6a)
4. In Munoz v. CA, the Court resolved to recall an entry of
judgment to prevent a miscarriage of justice. Section 8. Effect of order for partial new trial. — When less than all
5. In Barnes v. Judge Padilla, we ruled: of the issues are ordered retried, the court may either enter a judgment
or final order as to the rest, or stay the enforcement of such judgment or
A final and executory judgment can no longer be attacked by final order until after the new trial. (7a)
any of the parties or be modified, directly or indirectly, even by
the highest court of the land. Appeal
However, this Court has relaxed this rule in order to serve 1. Rule 40: Appeal from MTC to the RTC
substantial justice considering
2. Rule 41: Appeal from the RTC
(a) matters of life, liberty, honor or property, 3. Rule 42: Petition for Review from the RTC to the CA
(b) the existence of special or compelling circumstances,
4. Rule 43: Appeals from Quasi-Judicial Agencies to the CA
(c) the merits of the case, 5. Rule 44: Ordinary Appealed Cases to the CA
(d) a cause not entirely attributable to the fault or negligence of the party
6. Rule 45: Appeal by Certiorari
favored by the suspension of the rules,
(e) a lack of any showing that the review sought is merely frivolous and RULE 40: Appeal From Municipal Trial Courts to the Regional Trial
dilatory, and Courts
(f) the other party will not be unjustly prejudiced thereby
Section 1. Where to appeal. — An appeal from a judgment or final order
Consistent with the above, the Supreme Court, in some instances have
of a Municipal Trial Court may be taken to the Regional Trial Court
reconsidered decisions even when they have attained FINALITY.
exercising jurisdiction over the area to which the former pertains. The title
of the case shall remain as it was in the court of origin, but the party
Once a leave to file a second motion for reconsideration is granted,
appealing the case shall be further referred to as the appellant
it must be resolved. The same is no longer a prohibited pleading: the
and the adverse party as the appellee. (a)
Supreme Court’s resolve to grant, and not just merely note, in a Resolution,
the motion for leave to submit a second motion for reconsideration already
Notice of Appeal vs. Record on Appeal
warranted a resolution and discussion of the motion for reconsideration on its
merits. (McBurnie vs. Guanzon)
Notice of Appeal Record on Appeal
Contents of Motion: How to Appeal by filing a notice of By filing a record on
appeal with the court appeal before the court
that rendered the that rendered the
Section 2. Contents of motion for new trial or reconsideration and
judgment or final order judgment.
notice thereof. — The motion shall be made in writing stating the ground
or grounds therefor, a written notice of which shall be served by the Period 15 days from notice 30 days from notice
movant on the adverse party. When Perfected Upon filing of the notice Upon approval of the
As to the of appeal record on appeal
A motion for new trial shall be proved in the manner provided for proof of Appellant
motion. A motion for the cause mentioned in paragraph (a) of the Loss of Upon perfection of the Only over the subject
preceding section shall be supported by affidavits of merits which may be Jurisdiction of appeal AND the matter appealed upon
rebutted by affidavits. A motion for the cause mentioned in paragraph (b) the trial court expiration of the time to approval of record on
shall be supported by affidavits of the witnesses by whom such evidence appeal appeal and the
is expected to be given, or by duly authenticated documents which are expiration of the period
proposed to be introduced in evidence. to appeal

A motion for reconsideration shall point out a specifically the findings or Perfection of Appeal:
conclusions of the judgment or final order which are not supported by the
evidence or which are contrary to law making express reference to the

Cesar Nickolai F. Soriano Jr.


49 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 4. Perfection of appeal; effect thereof. — The perfection of Other Provisions:
the appeal and the effect thereof shall be governed by the provisions of
section 9, Rule 41. (n) Section 6. Duty of the clerk of court. — Within fifteen (15) days from
the perfection of the appeal, the clerk of court or the branch clerk of court
Rule 41, Section 9. Perfection of appeal; effect thereof. — A of the lower court shall transmit the original record or the record on appeal,
party's appeal by notice of appeal is deemed perfected as to him together with the transcripts and exhibits, which he shall certify as
upon the filing of the notice of appeal in due time. complete, to the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be furnished the
A party's appeal by record on appeal is deemed perfected as to him parties. (n)
with respect to the subject matter thereof upon the approval of the
record on appeal filed in due time. Section 7. Procedure in the Regional Trial Court. —
(a) Upon receipt of the complete record or the record on appeal, the clerk
In appeals by notice of appeal, the court loses jurisdiction over the of court of the Regional Trial Court shall notify the parties of such fact.
case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties. (b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors
In appeals by record on appeal, the court loses jurisdiction only over imputed to the lower court, a copy of which shall be furnished by him to
the subject matter thereof upon the approval of the records on the adverse party. Within fifteen (15) days from receipt of the appellant's
appeal filed in due time and the expiration of the appeal of the other memorandum, the appellee may file his memorandum. Failure of the
parties. appellant to file a memorandum shall be a ground for dismissal of the
appeal.
In either case, prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the protection and (c) Upon the filing of the memorandum of the appellee, or the expiration
preservation of the rights of the parties which do not involve any of the period to do so, the case shall be considered submitted for
matter litigated by the appeal, approve compromises, permit appeals decision. The Regional Trial Court shall decide the case on the basis of
of indigent litigants, order execution pending appeal in accordance the entire record of the proceedings had in the court of original and such
with 2 of Rule 39, and allow withdrawal of the appeal. (9a) memoranda as are filed. (n)

Docket Fees: Section 9. Applicability of Rule 41. — The other provisions of Rule 41
shall apply to appeals provided for herein insofar as they are not
Section 5. Appellate court docket and other lawful fees. — Within inconsistent with or may serve to supplement the provisions of this Rule.
the period for taking an appeal, the appellant shall pay to the clerk of the (n)
court which rendered the judgment or final order appealed from the full
amount of the appellate court docket and other lawful fees. Proof of RULE 41: Appeal From The Regional Trial Courts
payment thereof shall be transmitted to the appellate court together with
the original record or the record on appeal, as the case may be. (n) Section 1. Subject of appeal. — An appeal may be taken from a
judgment or final order that completely disposes of the case, or of a
To whom paid: clerk of court which rendered the judgment or final particular matter therein when declared by these Rules to be appealable.
order appealed from.
No appeal may be taken from: (MPIASESD)
APPEAL FROM ORDERS OF THE MTC DISMISSING THE CASE FOR (a) An order denying a motion for new trial or reconsideration (removed
LACK OF JURISDICTION: under AM No. 7-7-12-SC);
(b) An order denying a petition for relief or any similar motion seeking
Section 8. Appeal from orders dismissing case without trial; lack relief from judgment;
of jurisdiction. — If an appeal is taken from an order of the lower court (c) An interlocutory order;
dismissing the case without a trial on the merits, the Regional Trial Court (d) An order disallowing or dismissing an appeal;
may affirm or reverse it, as the case may be. In case of affirmance and (e) An order denying a motion to set aside a judgment by consent,
the ground of dismissal is lack of jurisdiction over the subject matter, the confession or compromise on the ground of fraud, mistake or duress, or
Regional Trial Court, if it has jurisdiction thereover, shall try the case on any other ground vitiating consent;
the merits as if the case was originally filed with it. In case of reversal, the (f) An order of execution;
case shall be remanded for further proceedings. (g) A judgment or final order for or against one or more of several parties
or in separate claims, counterclaims, cross-claims and third-party
If the case was tried on the merits by the lower court without jurisdiction complaints, while the main case is pending, unless the court allows an
over the subject matter, the Regional Trial Court on appeal shall not appeal therefrom; and
dismiss the case if it has original jurisdiction thereof, but shall decide the (h) An order dismissing an action without prejudice.
case in accordance with the preceding section, without prejudice to the
admission of amended pleadings and additional evidence in the interest of In all the above instances where the judgment or final order is not
justice. (n) appealable, the aggrieved party may file an appropriate special civil action
under Rule 65. (n)
When the RTC may treat the appeal as an action originally filed
before it: MODES OF APPEAL:
1. In case the RTC affirms the dismissal of the action before the lower court
on the ground of lack of jurisdiction without a trial on the merits and it Section 2. Modes of appeal. —
has jurisdiction over the case. (a) Ordinary appeal. — The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
In case the RTC reverses the lower court, the case shall be remanded. jurisdiction shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and serving a copy
2. In case the action was dismissed on the merits before the lower court thereof upon the adverse party. No record on appeal shall be required
who did not have jurisdiction over the subject matter and the RTC has except in special proceedings and other cases of multiple or separate
original jurisdiction thereof.

Cesar Nickolai F. Soriano Jr.


50 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
appeals where law on these Rules so require. In such cases, the record on as a mere scrap of paper, and under the last paragraph of Sec. 2, Rule 37,
appeal shall be filed and served in like manner. does not toll the reglementary period of appeal.

(b) Petition for review. — The appeal to the Court of Appeals in cases How to Appeal; Ordinary Appeals; Contents:
decided by the Regional Trial Court in the exercise of its appellate 1. Notice of Appeal
jurisdiction shall be by petition for review in accordance with Rule 42.
Section 5. Notice of appeal. — The notice of appeal shall indicate
(c) Appeal by certiorari. — In all cases where only questions of law the parties to the appeal, specify the judgment or final order or part
are raised or involved, the appeal shall be to the Supreme Court by thereof appealed from, specify the court to which the appeal is
petition for review on certiorari in accordance with the Rule 45. (n) being taken, and state the material dates showing the timeliness of
the appeal. (4a)
Erroneous Appeal/Improper Mode of Appeal: the following shall be
caused for dismissal of the appeal taken from the decision of the RTC: 2. Record on Appeal
1. When an appeal raises ONLY questions of law and the same is filed with
the CA; Section 6. Record on appeal; form and contents thereof. —
2. An appeal by notice of appeal instead of a petition for review from the The full names of all the parties to the proceedings shall be stated
appellate jurisdiction of the RTC. in the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
Note that the above appeals shall be dismissed and are not to be transferred chronological order, copies of only such pleadings, petitions,
or remanded as provided under Rule 50, Section 2. motions and all interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of the issue
When Record on Appeal applicable: involved, together with such data as will show that the appeal was
1. Special Proceedings perfected on time. If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the evidence,
Examples: testimonial and documentary, taken upon the issue involved. The
a. Settlement of Estates where every stage may be final and complete reference shall specify the documentary evidence by the exhibit
in itself and is thus appealable while other parts of the proceedings numbers or letters by which it was identified when admitted or
are left in the trial court. Like probate of a will or appointment of offered at the hearing, and the testimonial evidence by the names
executor or administrator. of the corresponding witnesses. If the whole testimonial and
documentary evidence in the case is to be included, a statement to
b. Partition, even though the actual partition is still pending, the that effect will be sufficient without mentioning the names of the
determination of co-ownership may be appealed. witnesses or the numbers or letters of exhibits. Every record on
appeal exceeding twenty (20) pages must contain a subject index.
c. Expropriation proceedings, where the determination of the just (6a)
compensation is still pending, the right or propriety of exercise of
the right to expropriate may already be the subject of an appeal. PERFECTION OF APPEAL:

Note, however, that in the final proceedings, like distribution and Section 9. Perfection of appeal; effect thereof. — A party's appeal
partition in the case of settlement of estates, the appeal is by notice of by notice of appeal is deemed perfected as to him upon the filing of the
appeal, where all the records are transmitted to the appellate court. This notice of appeal in due time.
is because the proceedings are at its finality and all portions are already
determined. A party's appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on
2. Other cases of multiple or separate appeals. appeal filed in due time.

Why called record on appeal: because only the portion of the record In appeals by notice of appeal, the court loses jurisdiction over the case
relevant to that appealed are transmitted to the appellate court, unlike in upon the perfection of the appeals filed in due time and the expiration of
notice of appeal, where the entire record is transmitted. the time to appeal of the other parties.

Section 3. Period of ordinary appeal. — The appeal shall be taken In appeals by record on appeal, the court loses jurisdiction only over the
within fifteen (15) days from notice of the judgment or final order appealed subject matter thereof upon the approval of the records on appeal filed in
from. Where a record on appeal is required, the appellant shall file a notice due time and the expiration of the appeal of the other parties.
of appeal and a record on appeal within thirty (30) days from notice of the
judgment or final order. In either case, prior to the transmittal of the original record or the record
on appeal, the court may issue orders for the protection and preservation
The period of appeal shall be interrupted by a timely motion for new trial of the rights of the parties which do not involve any matter litigated by the
or reconsideration. No motion for extension of time to file a motion for new appeal, approve compromises, permit appeals of indigent litigants, order
trial or reconsideration shall be allowed. (n) execution pending appeal in accordance with 2 of Rule 39, and allow
withdrawal of the appeal. (9a)
Fresh Period Rule: an ordinary appeal from the RTC to the Court of Appeals,
under Section 3 of Rule 41 of the Rules of Court, shall be taken within fifteen OTHER PROVISIONS:
(15) days either from:
1. Receipt of the original judgment of the trial court or Section 4. Appellate court docket and other lawful fees. — Within
2. Receipt of the final order of the trial court dismissing or denying the the period for taking an appeal, the appellant shall pay to the clerk of the
motion for new trial or motion for reconsideration. (Manaloto vs. Veloso court which rendered the judgment or final order appealed from, the full
III) amount of the appellate court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the appellate court together
Note, however, that this rule applies only to a motion for reconsideration/new with the original record or the record on appeal. (n)
trial that is validly filed, i.e., contains all the requirements under Sec. 2 of Rule
37. Otherwise, it may be treated as a pro forma motion, which is considered To whom payment is made: to the clerk of court which rendered the
judgment or final order appealed from.
Cesar Nickolai F. Soriano Jr.
51 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
evidence shall remain in the lower court for the examination of the parties.
Unlike in a Petition for Review and an Appeal by Certiorari where the payment (11a)
of the docket fees is with the Court of Appeals.
Section 13. Dismissal of appeal. — Prior to the transmittal of the
Section 7. Approval of record on appeal. — Upon the filing of the original record or the record on appeal to the appellate court, the trial court
record on appeal for approval and if no objection is filed by the appellee may motu propio or on motion dismiss the appeal for having been taken
within five (5) days from receipt of a copy thereof, the trial court may out of time. (14a)
approve it as presented or upon its own motion or at the instance of the
appellee, may direct its amendment by the inclusion of any omitted RULE 42: Petition for Review From the Regional Trial Courts to the
matters which are deemed essential to the determination of the issue of Court of Appeals
law or fact involved in the appeal. If the trial court orders the amendment
of the record, the appellant, within the time limited in the order, or such Section 1. How appeal taken; time for filing. — A party desiring to
extension thereof as may be granted, or if no time is fixed by the order appeal from a decision of the Regional Trial Court rendered in the exercise
within ten (10) days from receipt thereof, shall redraft the record by of its appellate jurisdiction may file a verified petition for review with the
including therein, in their proper chronological sequence, such additional Court of Appeals, paying at the same time to the clerk of said court the
matters as the court may have directed him to incorporate, and shall corresponding docket and other lawful fees, depositing the amount of
thereupon submit the redrafted record for approval, upon notice to the P500.00 for costs, and furnishing the Regional Trial Court and the adverse
appellee, in like manner as the original draft. (7a) party with a copy of the petition. The petition shall be filed and served
within fifteen (15) days from notice of the decision sought to be reviewed
Section 8. Joint record on appeal. — Where both parties are or of the denial of petitioner's motion for new trial or reconsideration filed
appellants, they may file a joint record on appeal within the time fixed by in due time after judgment. Upon proper motion and the payment of the
section 3 of this Rule, or that fixed by the court. (8a) full amount of the docket and other lawful fees and the deposit for costs
before the expiration of the reglementary period, the Court of Appeals may
Section 10. Duty of clerk of court of the lower court upon grant an additional period of fifteen (15) days only within which to file the
perfection of appeal. — Within thirty (30) days after perfection of all the petition for review. No further extension shall be granted except for the
appeals in accordance with the preceding section, it shall be the duty of most compelling reason and in no case to exceed fifteen (15) days. (n)
the clerk of court of the lower court:
How to Appeal; Where to File: while in ordinary appeal, a notice or record
(a) To verify the correctness of the original record or the record on of appeal is filed with the court that rendered the decision, an appeal via a
appeal, as the case may be aid to make certification of its correctness; petition for review is done by filing a verified petition with the Court of
(b) To verify the completeness of the records that will be, transmitted to Appeals.
the appellate court;
(c) If found to be incomplete, to take such measures as may be This is similar to a complaint but with “assignment of errors”. (Brondial, 2016)
required to complete the records, availing of the authority that he or the
court may exercise for this purpose; and Issues which may be raised: questions of fact and law, similar to ordinary
(d) To transmit the records to the appellate court. appeal. If only questions of law, the remedy should be appeal by certiorari.

If the efforts to complete the records fail, he shall indicate in his letter of When applicable: on matters decided by the RTC in the exercise of its
transmittal the exhibits or transcripts not included in the records being appellate jurisdiction.
transmitted to the appellate court, the reasons for their non-transmittal,
and the steps taken or that could be taken to have them available. Where to pay docket fees: with the Court of Appeals. Unlike in ordinary
appeal where the docket fees are paid to the clerk of court of the court which
The clerk of court shall furnish the parties with copies of his letter of rendered the judgment or final order appealed from.
transmittal of the records to the appellate court. (10a)
Period of Filing: 15 days from notice of the decision sought to be reviewed
How completeness and correctness is checked? By referring to the or of the denial of petitioner’s motion for new trial or reconsideration.
footnotes and reference to the records which should be chronologically
numbered starting from the complaint. Extension: The CA may grant an additional 15 days subject to a proper
motion and payment of docket fees and deposit for costs before the expiration
Section 11. Transcript. — Upon the perfection of the appeal, the clerk of the reglementary period.
shall immediately direct the stenographers concerned to attach
to the record of the case five (5) copies of the transcripts of the No further extension shall be granted except for the most compelling reason
testimonial evidence referred to in the record on appeal. The and in no case to exceed 15 days.
stenographers concerned shall transcribe such testimonial evidence and
shall prepare and affix to their transcripts an index containing the names FAILURE TO COMPLY WITH REQUIREMENTS:
of the witnesses and the pages wherein their testimonies are found, and
a list of the exhibits and the pages wherein each of them appears to have Section 3. Effect of failure to comply with requirements. — The
been offered and admitted or rejected by the trial court. The transcripts failure of the petitioner to comply with any of the foregoing requirements
shall be transmitted to the clerk of the trial court who shall thereupon regarding the payment of the docket and other lawful fees, the deposit for
arrange the same in the order in which the witnesses testified at the trial, costs, proof of service of the petition, and the contents of and the
and shall cause the pages to be numbered consecutively. (12a) documents which should accompany the petition shall be sufficient
ground for the dismissal thereof. (n)
Section 12. Transmittal. — The clerk of the trial court shall transmit to
the appellate court the original record or the approved record on PERFECTION OF APPEAL:
appeal within thirty (30) days from the perfection of the appeal, together
with the proof of payment of the appellate court docket and other lawful Section 8. Perfection of appeal; effect thereof. — (a) Upon the
fees, a certified true copy of the minutes of the proceedings, the order of timely filing of a petition for review and the payment of the corresponding
approval, the certificate of correctness, the original documentary evidence docket and other lawful fees, the appeal is deemed perfected as to the
referred to therein, and the original and three (3) copies of the transcripts. petitioner.
Copies of the transcripts and certified true copies of the documentary

Cesar Nickolai F. Soriano Jr.


52 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
The Regional Trial Court loses jurisdiction over the case upon the having been submitted, the Court of Appeals finds prima facie that the
perfection of the appeals filed in due time and the expiration of the time lower court has committed an error of fact or law that will warrant a
to appeal of the other parties. reversal or modification of the appealed decision, it may accordingly give
due course to the petition. (n)
However, before the Court of Appeals gives due course to the petition, the
Regional Trial Court may issue orders for the protection and preservation Section 7. Elevation of record. — Whenever the Court of Appeals
of the rights of the parties which do not involve any matter litigated by the deems it necessary, it may order the clerk of court of the Regional Trial
appeal, approve compromises, permit appeals of indigent litigants, order Court to elevate the original record of the case including the oral and
execution pending appeal in accordance with section 2 of Rule 39, and documentary evidence within fifteen (15) days from notice. (n)
allow withdrawal of the appeal. (9a, R41)
Section 9. Submission for decision. — If the petition is given due
(b) Except in civil cases decided under the Rule on Summary Procedure, course, the Court of Appeals may set the case for oral argument or require
the appeal shall stay the judgment or final order unless the Court of the parties to submit memoranda within a period of fifteen (15) days from
Appeals, the law, or these Rules shall provide otherwise. (a) notice. The case shall be deemed submitted for decision upon the filing of
the last pleading or memorandum required by these Rules or by the court
OTHER PROVISIONS: itself. (n)

Section 2. Form and contents. — The petition shall be filed in seven RULE 43: Appeals From the Court of Tax Appeals* and
(7) legible copies, with the original copy intended for the court being Quasi-Judicial Agencies to the Court of Appeals
indicated as such by the petitioner, and shall (a) state the full names of
the parties to the case, without impleading the lower courts or judges * Court of Tax Appeals: is no longer included in the list by virtue of RA No.
thereof either as petitioners or respondents; (b) indicate the specific 9282 which places the CTA on the same level as the CA.
material dates showing that it was filed on time; (c) set forth concisely a
statement of the matters involved, the issues raised, the specification of CONTENTS OF THE PETITION:
errors of fact or law, or both, allegedly committed by the Regional Trial
Court, and the reasons or arguments relied upon for the allowance of the Section 6. Contents of the petition. — The petition for review shall (a)
appeal; (d) be accompanied by clearly legible duplicate originals or true state the full names of the parties to the case, without impleading the court
copies of the judgments or final orders of both lower courts, certified or agencies either as petitioners or respondents; (b) contain a concise
correct by the clerk of court of the Regional Trial Court, the requisite statement of the facts and issues involved and the grounds relied upon for
number of plain copies thereof and of the pleadings and other material the review; (c) be accompanied by a clearly legible duplicate original or a
portions of the record as would support the allegations of the petition. certified true copy of the award, judgment, final order or resolution
appealed from, together with certified true copies of such material portions
The petitioner shall also submit together with the petition a certification of the record referred to therein and other supporting papers; and (d)
under oath that he has not theretofore commenced any other action contain a sworn certification against forum shopping as provided in the
involving the same issues in the Supreme Court, the Court of Appeals or last paragraph of section 2, Rule 42. The petition shall state the specific
different divisions thereof, or any other tribunal or agency; if there is such material dates showing that it was filed within the period fixed herein. (2a)
other action or proceeding, he must state the status of the same; and if
he should thereafter learn that a similar action or proceeding has been Requirements:
filed or is pending before the Supreme Court, the Court of Appeals, or 1. Verification;
different divisions thereof, or any other tribunal or agency, he undertakes 2. Certification against forum shopping;
to promptly inform the aforesaid courts and other tribunal or agency 3. Proof of service;
thereof within five (5) days therefrom. (n) 4. Explanation if not served personally;
5. Attachment of the pertinent pleadings and the decision, which must be
Section 4. Action on the petition. — The Court of Appeals may require certified true copies
the respondent to file a comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition if it finds the same Under Rule 42, only the order needs to be a certified true copy, while in
to be patently without merit, prosecuted manifestly for delay, or that the Rule 43, all pleadings must be certified true copies since quasi-judicial
questions raised therein are too insubstantial to require consideration. (n) agencies are not part of the judicial system and must thus be
authenticated.
Actions by the CA:
1. Require the respondent to file a comment, not a motion to dismiss; ACTION ON PETITION:
2. Dismiss the petition if it finds the same:
a. To be patently without merit; Section 8. Action on the petition. — The Court of Appeals may require
b. Prosecuted manifestly for delay; or the respondent to file a comment on the petition not a motion to dismiss,
c. That the questions raised therein are to unsubstantial to require within ten (10) days from notice, or dismiss the petition if it finds the same
consideration to be patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require consideration.
Section 5. Contents of comment. — The comment of the respondent (6a)
shall be filed in seven (7) legible copies, accompanied by certified true
copies of such material portions of the record referred to therein together Actions by the CA: similar to a petition for review under Rule 42 (Sec. 4):
with other supporting papers and shall (a) state whether or not he accepts 1. Require the respondent to file a comment, not a motion to dismiss;
the statement of matters involved in the petition; (b) point out such 2. Dismiss the petition if it finds the same:
insufficiencies or inaccuracies as he believes exist in petitioner's statement a. To be patently without merit;
of matters involved but without repetition; and (c) state the reasons why b. Prosecuted manifestly for delay; or
the petition should not be given due course. A copy thereof shall be served d. That the questions raised therein are to unsubstantial to require
on the petitioner. (a) consideration.

Section 6. Due course. — If upon the filing of the comment or such EFFECT OF APPEAL:
other pleadings as the court may allow or require, or after the expiration
of the period for the filing thereof without such comment or pleading

Cesar Nickolai F. Soriano Jr.


53 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 12. Effect of appeal. — The appeal shall not stay the award, are beyond the RTC's control. (Springfield Development Corporation, Inc. vs.
judgment, final order or resolution sought to be reviewed unless the RTC of Misamis Oriental)
Court of Appeals shall direct otherwise upon such terms as it may ORABLE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF
deem just. (10a) OTHER PROVISIONS:

What if the judgment was executed: it will not render the appeal moot Section 3. Where to appeal. — An appeal under this Rule may be taken
and academic, and if reversed, the appellant shall be entitled to damages. to the Court of Appeals within the period and in the manner herein
provided, whether the appeal involves questions of fact, of law, or mixed
OTHER PROVISIONS: questions of fact and law. (n)

Section 1. Scope. — This Rule shall apply to appeals from judgments or Section 4. Period of appeal. — The appeal shall be taken within fifteen
final orders of the Court of Tax Appeals and from awards, judgments, final (15) days from notice of the award, judgment, final order or resolution, or
orders or resolutions of or authorized by any quasi-judicial agency in the from the date of its last publication, if publication is required by law for its
exercise of its quasi-judicial functions. Among these agencies are the Civil effectivity, or of the denial of petitioner's motion for new trial or
Service Commission, Central Board of Assessment Appeals, Securities and reconsideration duly filed in accordance with the governing law of the court
Exchange Commission, Office of the President, Land Registration or agency a quo. Only one (1) motion for reconsideration shall be allowed.
Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Upon proper motion and the payment of the full amount of the docket fee
Patents, Trademarks and Technology Transfer, National Electrification before the expiration of the reglementary period, the Court of Appeals may
Administration, Energy Regulatory Board, National Telecommunications grant an additional period of fifteen (15) days only within which to file the
Commission, Department of Agrarian Reform under Republic Act No. 6657, petition for review. No further extension shall be granted except for the
Government Service Insurance System, Employees Compensation most compelling reason and in no case to exceed fifteen (15) days. (n)
Commission, Agricultural Invention Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of Investments, Construction Section 5. How appeal taken. — Appeal shall be taken by filing a
Industry Arbitration Commission, and voluntary arbitrators authorized by verified petition for review in seven (7) legible copies with the Court of
law. (n) Appeals, with proof of service of a copy thereof on the adverse party and
on the court or agency a quo. The original copy of the petition intended
Enumeration: provided under Section 1 are not exclusive. (Land Bank of the for the Court of Appeals shall be indicated as such by the petitioner.
Philippines vs. De Leon)
Upon the filing of the petition, the petitioner shall pay to the clerk of court
Other Agencies/Tribunals not covered by the Rule aside from the of the Court of Appeals the docketing and other lawful fees and deposit
NLRC: the sum of P500.00 for costs. Exemption from payment of docketing and
1. Commission on Audit; other lawful fees and the deposit for costs may be granted by the Court of
2. Commission on Elections; Appeals upon a verified motion setting forth valid grounds therefor. If the
3. Sandiganbayan Court of Appeals denies the motion, the petitioner shall pay the docketing
and other lawful fees and deposit for costs within fifteen (15) days from
Decisions from the above agencies/tribunals are directly appealable to the SC. notice of the denial. (n)
The first two being under Rule 64.
Section 7. Effect of failure to comply with requirements. — The
Section 2. Cases not covered. — This Rule shall not apply to judgments failure of the petitioner to comply with any of the foregoing requirements
or final orders issued under the Labor Code of the Philippines. (n) regarding the payment of the docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the contents of and the
Labor Code: decisions by the NLRC are not covered by this Rule and are thus documents which should accompany the petition shall be sufficient
not considered appealable to the CA. The remedy of the aggrieved party ground for the dismissal thereof. (n)
would be to file for a special civil action for certiorari under Rule 65.
Section 9. Contents of comment. — The comment shall be filed within
Filed with the CA: despite the RTC and the CA having concurrent jurisdiction ten (10) days from notice in seven (7) legible copies and accompanied by
over special civil actions for certiorari, such action directed against decisions clearly legible certified true copies of such material portions of the record
of the NLRC should be filed with the CA. This is because the RTC is of the referred to therein together with other supporting papers. The comment
same level as that of the NLRC. But still, not directly with the SC by virtue of shall (a) point out insufficiencies or inaccuracies in petitioner's statement
the principle of hierarchy of courts. of facts and issues; and (b) state the reasons why the petition should be
denied or dismissed. A copy thereof shall be served on the petitioner, and
Intracorporate disputes: in decisions rendered by the RTC as a commercial proof of such service shall be filed with the Court of Appeals. (9a)
court in intracorporate disputes is appealable to the CA via a Petition for
Review under this Rule (Rule 43) and not ordinary appeal under Rule 41). Section 10. Due course. — If upon the filing of the comment or such
other pleadings or documents as may be required or allowed by the Court
RTC as Agrarian Court: the decision of the RTC as a special agrarian reform of Appeals or upon the expiration of the period for the filing thereof, and
court is appealable by Petition for Review with the CA, not by ordinary appeal. on the records the Court of Appeals finds prima facie that the court or
Section 60 of RA 6657 clearly and categorically states that the said mode of agency concerned has committed errors of fact or law that would warrant
appeal should be adopted. (Land Bank of the Philippines vs. De Leon) reversal or modification of the award, judgment, final order or resolution
sought to be reviewed, it may give due course to the petition; otherwise,
Decision of the Provincial Agrarian Reform Adjudication Board – is it shall dismiss the same. The findings of fact of the court or agency
appealable to the DARAB before the CA via a Petition for Review. concerned, when supported by substantial evidence, shall be binding on
the Court of Appeals. (n)
Decision of the DARAB is reviewable by the CA not the RTC: where
legislation provides for an appeal from decisions of certain administrative Section 11. Transmittal of record. — Within fifteen (15) days from
bodies to the CA, it means that such bodies are co-equal with the RTC, in notice that the petition has been given due course, the Court of Appeals
terms of rank and stature, and logically, beyond the control of the latter. may require the court or agency concerned to transmit the original or a
legible certified true copy of the entire record of the proceeding under
Given that DARAB decisions are appealable to the CA, the inevitable review. The record to be transmitted may be abridged by agreement of all
conclusion is that the DARAB is a co-equal body with the RTC and its decisions

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54 Arellano University School of Law 2011-0303
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parties to the proceeding. The Court of Appeals may require or permit insufficiencies or inaccuracies as he believes exist in the appellant's
subsequent correction of or addition to the record. (8a) statement of facts with references to the pages of the record in support
thereof, but without repetition of matters in the appellant's statement of
Section 13. Submission for decision. — If the petition is given due facts; and
course, the Court of Appeals may set the case for oral argument or require (c) Under the heading "Argument," the appellee shall set forth his
the parties to submit memoranda within a period of fifteen (15) days from arguments in the case on each assignment of error with page references
notice. The case shall be deemed submitted for decision upon the filing of to the record. The authorities relied on shall be cited by the page of the
the last pleading or memorandum required by these Rules or by the court report at which the case begins and the page of the report on which the
of Appeals. (n) citation is found. (17a, R46)

Procedure in the Court of Appeals OTHER PROVISIONS:

RULE 44: Ordinary Appealed Cases Section 1. Title of cases. — In all cases appealed to the Court of Appeals
under Rule 41, the title of the case shall remain as it was in the court of
APPELLANT’S BRIEF: origin, but the party appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (1a, R46)
Section 7. Appellant's brief. — It shall be the duty of the appellant to
file with the court, within forty-five (45) days from receipt of the notice of Section 2. Counsel and guardians. — The counsel and guardians ad
the clerk that all the evidence, oral and documentary, are attached to the litem of the parties in the court of origin shall be respectively considered
record, seven (7) copies of his legibly typewritten, mimeographed or as their counsel and guardians ad litem in the Court of Appeals. When
printed brief, with proof of service of two (2) copies thereof upon the others appear or are appointed, notice thereof shall be served immediately
appellee. (10a, R46) on the adverse party and filed with the court. (2a, R46)

Section 13. Contents of appellant's brief. — The appellant's brief shall Section 3. Order of transmittal of record. — If the original record or
contain, in the order herein indicated, the following: the record on appeal is not transmitted to the Court of Appeals within thirty
(a) A subject index of the matter in the brief with a digest of the (30) days after the perfection of the appeal, either party may file a motion
arguments and page references, and a table of cases alphabetically with the trial court, with notice to the other, for the transmittal of such
arranged, textbooks and statutes cited with references to the pages where record or record on appeal. (3a, R46)
they are cited;
(b) An assignment of errors intended to be urged, which errors shall be Section 4. Docketing of case. — Upon receiving the original record or
separately, distinctly and concisely stated without repetition and numbered the record on appeal and the accompanying documents and exhibits
consecutively; transmitted by the lower court, as well as the proof of payment of the
(c) Under the heading "Statement of the Case," a clear and concise docket and other lawful fees, the clerk of court of the Court of Appeals
statement of the nature of the action, a summary of the proceedings, the shall docket the case and notify the parties thereof. (4a, R46)
appealed rulings and orders of the court, the nature of the judgment and
any other matters necessary to an understanding of the nature of the Within ten (10) days from receipt of said notice, the appellant, in appeals
controversy with page references to the record; by record on appeal, shall file with the clerk of court seven (7) clearly
(d) Under the heading "Statement of Facts," a clear and concise legible copies of the approved record on appeal, together with the proof
statement in a narrative form of the facts admitted by both parties and of of service of two (2) copies thereof upon the appellee.
those in controversy, together with the substance of the proof relating
thereto in sufficient detail to make it clearly intelligible, with page Any unauthorized alteration, omission or addition in the approved record
references to the record; on appeal shall be a ground for dismissal of the appeal. (n)
(e) A clear and concise statement of the issues of fact or law to be
submitted, to the court for its judgment; Section 5. Completion of record. — Where the record of the docketed
(f) Under the heading "Argument," the appellant's arguments on each case is incomplete, the clerk of court of the Court of Appeals shall so inform
assignment of error with page references to the record. The authorities said court and recommend to it measures necessary to complete the
relied upon shall be cited by the page of the report at which the case record. It shall be the duty of said court to take appropriate action towards
begins and the page of the report on which the citation is found; the completion of the record within the shortest possible time. (n)
(g) Under the heading "Relief," a specification of the order or judgment
which the appellant seeks; and Section 6. Dispensing with complete record. — Where the
(h) In cases not brought up by record on appeal, the appellant's brief shall completion of the record could not be accomplished within a sufficient
contain, as an appendix, a copy of the judgment or final order period allotted for said purpose due to insuperable or extremely difficult
appealed from. (16a, R46) causes, the court, on its own motion or on motion of any of the parties,
may declare that the record and its accompanying transcripts and exhibits
APPELLEE’S BRIEF: so far available are sufficient to decide the issues raised in the appeal, and
shall issue an order explaining the reasons for such declaration. (n)
Section 8. Appellee's brief. — Within forty-five (45) days from receipt
of the appellant's brief, the appellee shall file with the court seven (7) Section 9. Appellant's reply brief. — Within twenty (20) days from
copies of his legibly typewritten, mimeographed or printed brief, with proof receipt of the appellee's brief, the appellant may file a reply brief answering
of service of two (2) copies thereof upon the appellant. (11a, R46) points in the appellee's brief not covered in his main brief. (12a, R46)

Section 14. Contents of appellee's brief. — The appellee's brief shall Section 10. Time of filing memoranda in special cases. —
contain, in the order herein indicated the following: In certiorari, prohibition, mandamus, quo warranto and habeas
(a) A subject index of the matter in the brief with a digest of the corpus cases, the parties shall file in lieu of briefs, their respective
arguments and page references, and a table of cases alphabetically memoranda within a non-extendible period of thirty (30) days from receipt
arranged, textbooks and statutes cited with references to the pages where of the notice issued by the clerk that all the evidence, oral and
they are cited; documentary, is already attached to the record. (13a, R46)
(b) Under the heading "Statement of Facts," the appellee shall state that
he accepts the statement of facts in the appellant's brief, or under the The failure of the appellant to file his memorandum within the period
heading "Counter-Statement of Facts," he shall point out such therefor may be a ground for dismissal of the appeal. (n)

Cesar Nickolai F. Soriano Jr.


55 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
(e) when the factual findings are conflicting;
Section 11. Several appellants or appellees or several counsel for (f) when the Court of Appeals, in making its findings, went beyond the
each party. — Where there are several appellants or appellees, each issues of the case and the same are contrary to the admissions of both
counsel representing one or more but not all of them shall be served with appellant and appellee
only one copy of the briefs. When several counsel represent one appellant (g) when the Court of Appeals manifestly overlooked certain relevant facts
or appellee, copies of the brief may be served upon any of them. (14a, not disputed by the parties and which, if properly considered, would
R46) justify a different conclusion; and,
(h) where the findings of fact of the Court of Appeals are contrary to those
Section 12. Extension of time for filing briefs. — Extension of time of the trial court, or are mere conclusions without citation of specific
for the filing of briefs will not be allowed, except for good and sufficient evidence, or where the facts set forth by the petitioner are not disputed
cause, and only if the motion for extension is filed before the expiration of by the respondent, or where the findings of fact of the Court of Appeals
the time sought to be extended. (15, R46) are premised on the absence of evidence and are contradicted by the
evidence on record. (PAL vs. CA)
Section 15. Questions that may be raised on appeal. — Whether or
not the appellant has filed a motion for new trial in the court below he may Findings of the trial court as affirmed by the CA are generally
include in his assignment of errors any question of law or fact that has binding: In a petition for review on certiorari under Rule 45, this Court
been raised in the court below and which is within the issues framed by reviews only errors of law and not errors of facts. The factual findings of the
the parties. (18, R46) appellate court are generally binding on this Court. This applies with greater
force when both the trial court and the Court of Appeals are in complete
RULE 45: Appeal by Certiorari to the Supreme Court agreement on their factual findings. (Sps. Alfredo vs. Sps. Borras)

Distinguished from Rule 65: Rule 45 is a mode of appeal, while certiorari Findings of the trial court are accorded great respect, if not conclusive.
under Rule 65 is a special civil action (an original action). However, this principle does not apply if the trial court ignored, misunderstood
or misconstrued cogent facts and circumstances of substance which, if
Time to file: An appeal by certiorari is to be filed within 15 days, unlike a considered, would alter the outcome of the case. (People vs. Corpuz)
petition for certiorari under Rule 65 which can be filed within 60 days from
receipt of the judgment or final order. When questions of fact may be raised as provided in the Rules: in
cases of prerogative writs, such as a Writ of Amparo (Sec. 19 on the Rule on
Extension: is available under Rule 45 for compelling reasons for a period of the Writ of Amparo), Writ of Habeas Data (Sec. 19 on the Rule on the Writ of
30 days, while under Rule 65, no such extension of time is available. Habeas Data) and Writ of Kalikasan (Sec. 16, Rule 7: Writ of Kalikasan).

Motion for Reconsideration: is not required before filing a Rule 45, while in In such cases, the appeal may raise both questions of fact and law.
Rule 65, it is generally required.
Availability of an appeal by certiorari forecloses the right to resort
How appeal is taken: by filing a petition not a notice of appeal, with the to a special civil action for certiorari: a special civil action for certiorari is
same requirements as under Rule 42. a limited form of review and a remedy of last resort, which lies only when
there is no appeal or plain, speedy and adequate remedy in the ordinary
MTC: cases decided by the MTC, even if purely of questions of law, is still course of law.
appealable to the RTC, not to the SC.
A petition for review on certiorari under Rule 45 and a petition for certiorari
Sandiganbayan: to the SC, a petition for review on certiorari is filed only if under Rule 65 are mutually exclusive remedies. Certiorari cannot co-exist with
the penalty is NOT death, life imprisonment or reclusion perpetua. an appeal or any other adequate remedy. Rule 65 is not a remedy for a lost
appeal. (Estinozo vs. CA)
Court of Tax Appeals: may be appealed to the SC via a petition for review
on certiorari. But only those decided by the CTA en banc. Grant of a Motion to Dismiss is subject of an appeal, petition for
certiorari: The fact that the order granting the motion to dismiss was a final
Evidence Test Rule: Questions of Fact vs. Questions of Law: order for thereby completely disposing of the case, leaving nothing more for
the trial court to do in the action, truly called for an appeal, instead of
1. Question of Law: if there is no need to establish a fact by evidence or certiorari, as the correct remedy. (Heirs of Sps. Reterta vs. Mores)
the existence or non-existence of a law; or if one is called upon to
determine what the law is and its applicability to a particular situation. Note, however, that under Rule 41, Sec. 1(g), an order dismissing an action
2. Question of Fact: if evidence is necessary to establish to existence or without prejudice cannot be the subject of an appeal. Thus, Certiorari under
non-existence of certain matters in a case. Rule 65 may not lie if the dismissal is based on the following grounds:
1. Res judicata;
A question of law arises when there is doubt as to what the law is on a certain 2. Prescription;
state of facts, while there is a question of fact when the doubt arises as to 3. That the claim has been paid, waived, abandoned or otherwise
the truth or falsity of the alleged facts. (Latorre vs. Latorre) extinguished;
4. That the claim is unenforceable under the statute of frauds.
GENERAL RULE: only questions of law may be raised by the parties and
passed upon by the Supreme Court. Factual findings of the appellate court CONTENTS OF PETITION:
are generally binding on the SC especially when in complete accord with the
findings of the trial court. This is because it is not the SC’s function to analyze Section 4. Contents of petition. — The petition shall be filed in eighteen
or weigh the evidence all over again. (18) copies, with the original copy intended for the court being indicated
as such by the petitioner and shall (a) state the full name of the appealing
EXCEPTIONS: party as the petitioner and the adverse party as respondent, without
(a) where there is grave abuse of discretion; impleading the lower courts or judges thereof either as petitioners or
(b) when the finding is grounded entirely on speculations, surmises or respondents; (b) indicate the material dates showing when notice of the
conjectures; judgment or final order or resolution subject thereof was received, when
(c) when the inference made is manifestly mistaken, absurd or impossible; a motion for new trial or reconsideration, if any, was filed and when notice
(d) when the judgment of the Court of Appeals was based on a of the denial thereof was received; (c) set forth concisely a statement of
misapprehension of facts; the matters involved, and the reasons or arguments relied on for the
Cesar Nickolai F. Soriano Jr.
56 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
allowance of the petition; (d) be accompanied by a clearly legible duplicate (a) When the court a quo has decided a question of substance, not
original, or a certified true copy of the judgment or final order or resolution theretofore determined by the Supreme Court, or has decided it in a way
certified by the clerk of court of the court a quo and the requisite number probably not in accord with law or with the applicable decisions of the
of plain copies thereof, and such material portions of the record as would Supreme Court; or
support the petition; and (e) contain a sworn certification against forum (b) When the court a quo has so far departed from the accepted and usual
shopping as provided in the last paragraph of section 2, Rule 42. (2a) course of judicial proceedings, or so far sanctioned such departure by a
lower court, as to call for an exercise of the power of supervision. (4a)
REQUIREMENTS:
Section 8. Due course; elevation of records. — If the petition is given
Section 7. Pleadings and documents that may be due course, the Supreme Court may require the elevation of the complete
required; sanctions. — For purposes of determining whether the record of the case or specified parts thereof within fifteen (15) days from
petition should be dismissed or denied pursuant to section 5 of this Rule, notice. (2a)
or where the petition is given due course under section 8 hereof, the
Supreme Court may require or allow the filing of such pleadings, briefs, Section 9. Rule applicable to both civil and criminal cases. — The
memoranda or documents as it may deem necessary within such periods mode of appeal prescribed in this Rule shall be applicable to both civil and
and under such conditions as it may consider appropriate, and impose the criminal cases, except in criminal cases where the penalty imposed is
corresponding sanctions in case of non-filing or unauthorized filing of such death, reclusion perpetua or life imprisonment. (n)
pleadings and documents or non-compliance with the conditions therefor.
(n) RULE 46 to 49

OTHER PROVISIONS: ORIGINAL ACTION: the Court of Appeals do not have original jurisdiction
over ORDINARY civil cases. However, the following actions may be originally
Section 1. Filing of petition with Supreme Court. — A party desiring filed with the CA:
to appeal by certiorari from a judgment or final order or resolution of the 1. Annulment of Judgment of the RTC;
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals (as 2. Special Civil Actions, e.g., certiorari, mandamus and prohibition and quo
amended by AM No. 7-7-12-SC) the Regional Trial Court or other courts warranto.
whenever authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition shall raise only questions of Summons: even if an original action is filed with the CA, it does not issue
law which must be distinctly set forth. (1a, 2a) summons. Instead, it issues a resolution requiring the other party to
comment. EXCEPT: in annulment of judgment, but not outright, only upon
Cases decided by the Court of Tax Appeals: division is appealable to the determination of a prima facie case, the absence of which, the CA may dismiss
CTA en banc, before it can be the subject of an Appeal by Certiorari to the the same outright.
Supreme Court.
Jurisdiction over respondent: under Sec. 4, the CA acquires jurisdiction
Section 2. Time for filing; extension. — The petition shall be filed over original cases:
within fifteen (15) days from notice of the judgment or final order or 1. Upon showing receipt of the resolution of the court;
resolution appealed from, or of the denial of the petitioner's motion for 2. Upon voluntary submission to the jurisdiction of the court;
new trial or reconsideration filed in due time after notice of the judgment.
On motion duly filed and served, with full payment of the docket and other Hearing: the Court of Appeals conducts a hearing on the case similar to the
lawful fees and the deposit for costs before the expiration of the RTC. However, it can direct the trial court to receive evidence and submit a
reglementary period, the Supreme Court may for justifiable reasons grant report on the same.
an extension of thirty (30) days only within which to file the petition. (1a,
5a) The Supreme Court may likewise direct the Court of Appeals to receive
evidence and submit a report thereon in cases directly filed with the SC, like
Section 3. Docket and other lawful fees; proof of service of an application for a Writ of Kalikasan.
petition. — Unless he has theretofore done so, the petitioner shall pay
the corresponding docket and other lawful fees to the clerk of court of the Trial: in annulment of judgments, the CA likewise conducts a trial where
Supreme Court and deposit the amount of P500.00 for costs at the time of witnesses and evidence are presented.
the filing of the petition. Proof of service of a copy, thereof on the lower
court concerned and on the adverse party shall be submitted together with Preliminary Conference: before the trial court and a clerk of court is
the petition. (1a) different with a preliminary conference with the CA under Rule 48, which is
more similar to a pre-trial and applicable whether in an original or an appealed
Section 5. Dismissal or denial of petition. — The failure of the case.
petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, deposit for Under Rule 50, if the petitioner is not present in the preliminary conference,
costs, proof of service of the petition, and the contents of and the the case may be dismissed.
documents which should accompany the petition shall be sufficient
ground for the dismissal thereof. Rule 49: Oral Arguments: may be allowed only in original actions and
limited to the matters as may be specified by the court.
The Supreme Court may on its own initiative deny the petition on the
ground that the appeal is without merit, or is prosecuted manifestly for Notice of Hearing on Motions: under Sec. 3 of Rule 49, hearings in the
delay, or that the questions raised therein are too unsubstantial to require Court of Appeals are only scheduled by the court (similar to the SC) not by
consideration. (3a) the party. As such, no notice of hearing is required in the CA since no hearing
shall be allowed therefor.
Section 6. Review discretionary. — A review is not a matter of right,
but of sound judicial discretion, and will be granted only when there are Supreme Court Procedures: are similar to the Court of Appeals, as such,
special and important reasons thereof. The following, while neither the above rules are likewise applicable to original and appealed cases to the
controlling nor fully measuring the court's discretion, indicate the character SC, except rules on ordinary appeal.
of the reasons which will be considered:
GROUNDS FOR DISMISSAL OF APPEAL

Cesar Nickolai F. Soriano Jr.


57 Arellano University School of Law 2011-0303
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RULE 50: xxx

Section 1. Grounds for dismissal of appeal. — An appeal may be Section 5 of Rule 56: Procedures in the Supreme Court:
dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds: Section 5. Grounds for dismissal of appeal. — The appeal may be
(a) Failure of the record on appeal to show on its face that the appeal was dismissed motu proprio or on motion of the respondent on the following
taken within the period fixed by these Rules; grounds:
(b) Failure to file the notice of appeal or the record on appeal within the (a) Failure to take the appeal within the reglementary period;
period prescribed by these Rules; (b) Lack of merit in the petition;
(c) Failure of the appellant to pay the docket and other lawful fees as (c) Failure to pay the requisite docket fee and other lawful fees or to
provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. make a deposit for costs;
803, 17 February 1998) (d) Failure to comply with the requirements regarding proof of service
(d) Unauthorized alterations, omissions or additions in the approved record and contents of and the documents which should accompany the
on appeal as provided in section 4 of Rule 44; petition;
(e) Failure of the appellant to serve and file the required number of copies (e) Failure to comply with any circular, directive or order of the Supreme
of his brief or memorandum within the time provided by these Rules; Court without justifiable cause;
(f) Absence of specific assignment of errors in the appellant's brief, or of (f) Error in the choice or mode of appeal; and
page references to the record as required in section 13, paragraphs (a), (g) The fact that the case is not appealable to the Supreme Court.
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction Section 2. Dismissal of improper appeal to the Court of Appeals.
or completion of the record within the time limited by the court in its order; — An appeal under Rule 41 taken from the Regional Trial Court to the
(h) Failure of the appellant to appear at the preliminary conference under Court of Appeals raising only questions of law shall be dismissed, issues
Rule 48 or to comply with orders, circulars, or directives of the court purely of law not being reviewable by said court. Similarly, an appeal by
without justifiable cause; and notice of appeal instead of by petition for review from the appellate
(i) The fact that the order or judgment appealed from is not appealable. judgment of a Regional Trial Court shall be dismissed. (n)
(1a)
An appeal erroneously taken to the Court of Appeals shall not be
Material Data Rule: the absence of material data may be a ground for transferred to the appropriate court but shall be dismissed outright. (3a)
dismissing an appeal, such as, when the judgment was received, when the
motion for reconsideration was filed, when the order of denial or grant of the Section 6 of Rule 56:
motion for reconsideration was received, issues, errors, etc.
Section 6. Disposition of improper appeal. — Except as provided
Motion to dismiss on the ground of material data rule is filed with in section 3, Rule 122 regarding appeals in criminal cases where the
the court a quo: the lower court should order the amendment and penalty imposed is death, reclusion perpetua or life imprisonment, an
completion thereof. This is different from the rule where the motion to dismiss appeal taken to the Supreme Court by notice of appeal shall be
was filed in the appellate court (Ozaeta Jr. vs. CA) as the provisions of Sec. dismissed.
6, Rule 41 are principally intended for the appellate courts. (Tanalega vs.
Tizon) An appeal by certiorari taken to the Supreme Court from the Regional
Trial Court submitting issues of fact may be referred to the Court of
Other grounds for dismissal of an appeal: Appeals for decision or appropriate action. The determination of the
1. By agreement of the parties, as where the case was amicably settled Supreme Court on whether or not issues of fact are involved shall be
by them; final. (n)
2. Where the appealed case has become moot or academic;
3. Where the appeal is frivolous. Section 3. Withdrawal of appeal. — An appeal may be withdrawn as
of right at any time before the filing of the appellee's brief. Thereafter, the
Page References are not indicated: Sec. 13 (a), (c), (d) and (f) of withdrawal may be allowed in the discretion of the court. (4a)
Rule 44:
REMEDIES AGAINST AN EXECUTORY JUDGMENT:
Section 13. Contents of appellant's brief. — The appellant's brief
shall contain, in the order herein indicated, the following: 1. Petition for Relief (Rule 38)
(a) A subject index of the matter in the brief with a digest of the 2. Annulment of Judgment (Rule 47)
arguments and page references, and a table of cases alphabetically
arranged, textbooks and statutes cited with references to the pages Petition for Relief
where they are cited;
xxx RULE 38: Relief from Judgments, Orders, or Other Proceedings
(c) Under the heading "Statement of the Case," a clear and concise
statement of the nature of the action, a summary of the proceedings, Two Forms of Petition for Relief:
the appealed rulings and orders of the court, the nature of the 1. Petition for relief from judgment (Sec. 1); and
judgment and any other matters necessary to an understanding of the
nature of the controversy with page references to the record; Section 1. Petition for relief from judgment, order, or other
(d) Under the heading "Statement of Facts," a clear and concise proceedings. — When a judgment or final order is entered, or any
statement in a narrative form of the facts admitted by both parties and other proceeding is thereafter taken against a party in any court
of those in controversy, together with the substance of the proof through fraud, accident, mistake, or excusable negligence, he may
relating thereto in sufficient detail to make it clearly intelligible, with file a petition in such court and in the same case praying that the
page references to the record;
judgment, order or proceeding be set aside. (2a)
xxx
(f) Under the heading "Argument," the appellant's arguments on
2. Petition for relief from denial of appeal (Sec. 2)
each assignment of error with page references to the record. The
authorities relied upon shall be cited by the page of the report at which
Section 2. Petition for relief from denial of appeal. — When a
the case begins and the page of the report on which the citation is
judgment or final order is rendered by any court in a case, and a
found;
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party thereto, by fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may file a petition in Where to file: with the court that rendered the judgment. Thus, if the
such court and in the same case praying that the appeal be given judgment assailed is that of the MTC, it is to be filed with the MTC. This is
due course. (1a) different from action for revival of judgments, the jurisdiction of which is with
the RTC since it is incapable of pecuniary estimation.
Grounds: FAME: Fraud, Accident, Mistake or Excusable Negligence, the same
grounds as motion for new trial. “Petition”: is a misnomer because it connotes a separate action. In case of
petition for relief, it is a mere continuation of the case and is even docketed
Limitation: if a party already had an opportunity to file a motion for new trial as the same case.
and the same is not filed due to his fault or negligence, that party likewise
loses the right to file a petition for relief. Section 7. Procedure where the denial of an appeal is set aside. —
Where the denial of an appeal is set aside, the lower court shall be required
These are not alternative remedies, such that if a motion for new trial is not to give due course to the appeal and to elevate the record of the appealed
granted and the party failed to appeal the order, he cannot likewise file for a case as if a timely and proper appeal had been made. (7a)
petition for relief since they have the same grounds. (see Mesina vs. Meer)
If the Petition is Granted:
Prayer: both petitions for relief have the same grounds the difference lies on • Petition for relief from judgment – in effect, the court grants a new trial;
the prayer: • Petition for relief from denial of appeal – the lower court shall be required
• Petition for relief from judgment – that the judgment, order or to give due course to the appeal and to elevate the record of the
proceeding be set aside; appealed case as if a timely and proper appeal had been made.
• Petition for relief from denial of appeal – that the appeal be given due
course. Injunction: Note that when a petition for relief is filed, the judgment is
already executory. As such, the filing of a petition for relief, does not, per se,
“ANY COURT” does not cover Court of Appeals; no Petition for Relief stop the execution of the judgment. Accordingly, the judgment may still be
may be filed therein: While the law uses the phrase "any court," it refers executed being final and executory. This is why Sec. 5 allows an application
only to Municipal/Metropolitan and Regional Trial Courts. The procedure in for injunction together with the petition.
the Court of Appeals and this Court are governed by separate provisions of
the Rules of Court and may, from time to time, be supplemented by additional Section 5. Preliminary injunction pending proceedings. —
rules promulgated by this Court through resolutions or circulars. As it stands, The court in which the petition is filed may grant such preliminary
neither the Rules of Court nor the Revised Internal Rules of the Court of injunction as may be necessary for the preservation of the rights of
Appeals allows the remedy of petition for relief in the Court of Appeals. (Sps the parties, upon the filing by the petitioner of a bond in favor of
De la Cruz vs. Andres) the adverse party, conditioned that if the petition is dismissed or
the petitioner fails on the trial of the case upon its merits, he will
Section 3. Time for filing petition; contents and verification. — A pay the adverse party all damages and costs that may be awarded
petition provided for in either of the preceding sections of this Rule must to him by reason of the issuance of such injunction or the other
be verified, filed within sixty (60) days after the petitioner learns of the proceedings following the petition, but such injunction shall not
judgment, final order, or other proceeding to be set aside, and not more operate to discharge or extinguish any lien which the adverse party
than six (6) months after such judgment or final order was entered, or may have acquired upon, the property, of the petitioner. (5a)
such proceeding was taken, and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence relied upon, What if Petition is Granted, no injunction was filed, and the
and the facts constituting the petitioner's good and substantial cause of judgment was already executed: Restitution or Damages.
action or defense, as the case may be. (3)
Illustration: In a case for collection of sum of money, judgment was rendered
Time for filing; When: in favor of A. B failed to file a motion for new trial and reconsideration and
1. Within 60 days after the petitioner learns of the judgment, final order, failed to appeal, without his fault and the judgment became executory. B filed
or other proceeding to be set aside; and for a petition for relief from judgment and injunction, but the injunction was
2. Not more than 6 months after such judgment or final order was entered, denied. The judgment was executed.
or such proceeding was taken.
What is the remedy now of B if the petition is granted? B can file for claim for
Notice: must be other than the regular notice coming from court, i.e., damages or restitution.
receiving a copy of the judgment. In the case of a petition for relief, petitioner
came to know of the judgment other than the regular manner. This is because What if petition is DENIED; Remedy: is to file a motion for
a party would normally file an appeal from receipt of copy of the judgment. reconsideration, if denied, a special civil action for certiorari. Note that a denial
of a petition for relief is not appealable under Rule 41, Sec. 1(b).
Both periods must be complied with: Illustration: X was a judgment
obligor in a decision which was entered on January 10. The denial of a petition for relief from judgment is subject only to a special
1. X came to know of the decision only on July 5 - He has 5 days to file his civil action for certiorari under Rule 65 not by a petition for review on certiorari
petition for relief since the 6 month period from entry of judgment under Rule 45. (see De La Cruz vs. Andres)
expires on July 10.
2. X came to know of the decision on January 20 - He has until March 21 Section 4. Order to file an answer. — If the petition is sufficient in
or 22 (if leap year) to file, in order to comply with the 60 day period. form and substance to justify relief, the court in which it is filed, shall issue
3. X came to know of the decision only on August 5 – He cannot anymore an order requiring the adverse parties to answer the same within fifteen
file a petition for relief since this is already beyond the 6 month period. (15) days from the receipt thereof. The order shall be served in such
manner as the court may direct, together with copies of the petition and
Counsel’s notice: is notice to the client. As such, if from the time the counsel the accompanying affidavits. (4a)
had notice, the 60 day period expired, the party cannot anymore file for a
petition for relief. (Mercury Drug vs. CA) Section 6. Proceedings after answer is filed. — After the filing of the
answer or the expiration of the period therefor, the court shall hear the
Knowledge of the party: The 60-day period is reckoned from the time the petition and if after such hearing, it finds that the allegations thereof are
party acquired knowledge of the order, judgment or proceedings and not from not true, the petition shall be dismissed; but if it finds said allegations to
the date he actually read the same. (Escueta vs. Lim) be true, it shall set aside the judgment or final order or other proceeding
Cesar Nickolai F. Soriano Jr.
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complained of upon such terms as may be just. Thereafter the case shall Extrinsic fraud shall not be a valid ground if it was availed of, or could have
stand as if such judgment, final order or other proceeding had never been been availed of, in a motion for new trial or petition for relief. (n)
rendered, issued or taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new trial or reconsideration Grounds:
had been granted by it. (6a) 1. Extrinsic Fraud – if this ground was already availed of, or could have
been availed of, in a motion for new trial or petition for relief, it is no
Annulment of Judgments longer available for annulment of judgments.
2. Lack of Jurisdiction – which may either be lack of jurisdiction over the
RULE 47: Annulment of Judgments of Final Orders and Resolutions subject matter or over the person of the defendant. (see NHA vs.
Evangelista)
Annulment of Judgments: a remedy granted only under exceptional 3. Violation of due process (see Diona vs. Balanque)
circumstances where a party, without fault on his part, has failed to avail of
the ordinary remedies of new trial, appeal, petition for relief or other Violation of Due Process as a ground for annulment of judgment:
appropriate remedies. Said rule explicitly provides that it is not available as
a substitute for a remedy which was lost due to the party’s own While under Section 2, Rule 47 of the Rules of Court a Petition for Annulment
neglect in promptly availing of the same. of Judgment may be based only on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due process as
The underlying reason is traceable to the notion that annulling final judgments additional ground to annul a judgment.
goes against the grain of finality of judgment. Litigation must end and
terminate sometime and somewhere, and it is essential to an effective There is such violation of due process when a party declared in default is
administration of justice that once a judgment has become final, the issue or ordered to pay interest at a rate higher than that prayed for by the winning
cause involved therein should be laid to rest. party, because he was not informed of such possibility of greater relief.

Section 1. Coverage. — This Rule shall govern the annulment by the Limited to the determination of whether or not judgment can be
Court of Appeals of judgments or final orders and resolutions in civil actions annulled: the CA cannot go into the merits of the original case and decide
of Regional Trial Courts for which the ordinary remedies of new trial, on it.
appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner. (n) Effect/Re-filing:
1. If the ground relied upon is lack of jurisdiction, the entire proceedings
Applicability: Rule 47 is applicable only for judgments rendered by the RTC are set aside without prejudice to the original action being refiled in the
in the exercise of its original exclusive jurisdiction. However, it may likewise proper court.
apply to cases decided by the MTC as provided under Section 10, to wit: 2. If the judgment or final order or resolution is set aside on the ground of
extrinsic fraud, the CA may on motion order the trial court to try the case
Section 10. Annulment of judgments or final orders of as if a timely motion for new trial had been granted therein.
Municipal Trial Courts. — An action to annul a judgment or final
order of a Municipal Trial Court shall be filed in the Regional Trial The remedy is by no means an appeal whereby the correctness of the
Court having jurisdiction over the former. It shall be treated as an assailed judgment or final order is in issue; hence, the CA is not called
ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall upon to address each error allegedly committed by the trial court.
be applicable thereto. (n) (Pinausukan Seafood House vs. Far East Bank & Trust Company)

Filed with the CA: Section 1 provides that the annulment is done by the CA. Res Judicata not a valid defense against Petition for Annulment: the
Note that under Sec. 9(3) of BP Blg 129, as amended, this is the only case concept of res judicata is inconsistent with annulment of judgment. The
where the CA has exclusive original jurisdiction. petition for annulment precisely challenges the validity of the judgment. To
adopt the argument that res judicata has set in would lead to a permanent
Not Applicable: preclusion of annulment of judgment. To say that res judicata will lie will
1. Before the Supreme Court – since a Petition for Annulment is an original prevent any annulment of judgment. Significantly, the reverse is true for the
action not cognizable by the Supreme Court under Rule 56. rational underlying annulment of judgment is incongruent with res judicata
2. Criminal Proceedings – applicable only to civil cases;
3. Judgment of a quasi-judicial agency; Section 3. Period for filing action. — If based on extrinsic fraud, the
4. If a motion for reconsideration or new trial is available: action must be filed within four (4) years from its discovery; and if based
on lack of jurisdiction, before it is barred by laches or estoppel. (n)
A petition for annulment of judgment is a remedy in equity so exceptional
in nature that it may be availed of only when other remedies are wanting, Period for Filing:
and only if the judgment, final order or final resolution sought to be 1. Extrinsic Fraud – 4 years from discovery;
annulled was rendered by a court lacking jurisdiction or through extrinsic 2. Lack of jurisdiction – before it is barred by estoppel or laches.
fraud. Yet, the remedy, being exceptional in character, is not allowed to
be so easily and readily abused by parties aggrieved by the final Contents of Petition:
judgments, orders or resolutions. The Court has thus instituted
safeguards by limiting the grounds for the annulment to lack of Section 4. Filing and contents of petition. — The action shall be
jurisdiction and extrinsic fraud, and by prescribing in Section 1 of Rule commenced by filing a verified petition alleging therein with particularity
47 of the Rules of Court that the petitioner should show that the the facts and the law relied upon for annulment, as well as those
ordinary remedies of new trial, appeal, petition for relief or supporting the petitioner's good and substantial cause of action or defense,
other appropriate remedies are no longer available through no as the case may be.
fault of the petitioner. A petition for annulment that ignores or
disregards any of the safeguards cannot prosper. (Pinausukan Seafood The petition shall be filed in seven (7) clearly legible copies, together with
House vs. Far East Bank & Trust Company) sufficient copies corresponding to the number of respondents. A certified
true copy of the judgment or final order or resolution shall be attached to
Section 2. Grounds for annulment. — The annulment may be based the original copy of the petition intended for the court and indicated as
only on the grounds of extrinsic fraud and lack of jurisdiction. such by the petitioner.

Cesar Nickolai F. Soriano Jr.


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REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
The petitioner shall also submit together with the petition affidavits of Section 1. Execution upon judgments or final orders. — Execution
witnesses or documents supporting the cause of action or defense and a shall issue as a matter of right, or motion, upon a judgment or order that
sworn certification that he has not theretofore commenced any other disposes of the action or proceeding upon the expiration of the period to
action involving the same issues in the Supreme Court, the Court of appeal therefrom if no appeal has been duly perfected. (1a)
Appeals or different divisions thereof, or any other tribunal or agency if
there is such other action or proceeding, he must state the status of the If the appeal has been duly perfected and finally resolved, the execution
same, and if he should thereafter learn that a similar action or proceeding may forthwith be applied for in the court of origin, on motion of the
has been filed or is pending before the Supreme Court, the Court of judgment obligee, submitting therewith certified true copies of the
Appeals, or different divisions thereof, or any other tribunal or agency, he judgment or judgments or final order or orders sought to be enforced and
undertakes to promptly inform the aforesaid courts and other tribunal or of the entry thereof, with notice to the adverse party.
agency thereof within five (5) days therefrom. (n)
The appellate court may, on motion in the same case, when the interest
Effect of Judgment: of justice so requires, direct the court of origin to issue the writ of
execution. (n)
Section 7. Effect of judgment. — A judgment of annulment shall set
aside the questioned judgment or final order or resolution and render the EXECUTION cannot be obtained until and unless
same null and void, without prejudice to the original action being refiled in a. the judgment has become final and executory;
the proper court. However, where the judgment or final order or resolution b. the right of appeal has been renounced or waived;
is set aside on the ground of extrinsic fraud, the court may on motion order c. the period for appeal has lapsed without an appeal having been filed; or
the trial court to try the case as if a timely motion for new trial had been d. having been filed, the appeal has been resolved and the records of the
granted therein. (n) case have been returned to the court of origin

Effect if granted: In the above cases, execution shall issue as a matter of right. (City of Iligan
1. Lack of jurisdiction – the questioned judgment or final order or resolution vs. Principal Management Group Inc.)
is set aside and rendered null and void.
2. Extrinsic fraud – the court may, on motion, order the trial court to try Writ of Execution – who issues: the court of origin, not the appellate
the case as if a timely motion for new trial had been granted therein. court, may it be RTC, CA or SC.

Refiling of the original action in the proper court: the judgment is Example: If a case is filed in the MTC which decided in favor of A against B:
without prejudice to the refilling of the action. • If B does not appeal the judgment and the same becomes final and
executory, A will file the motion for issuance of a writ of execution with
Suspension of prescriptive period: the MTC.
1. Lack of jurisdiction – the prescriptive period is suspended from the time • If B appeals to the RTC, and the same affirms the judgment of the MTC,
of filing of the original action until finality of the judgment of annulment; and the judgment (of the RTC) becomes final and executory, the motion
2. Extrinsic Fraud – the same; EXCEPT, if the fraud is attributable to the is still filed with the MTC.
plaintiff in the original action. • The motion may be filed even if the records are still with the appellate
court; only the copy of the judgment of the appellate court and the entry
Section 8. Suspension prescriptive period. — The prescriptive of judgment is required.
period for the refiling of the aforesaid original action shall be • The motion is a litigated motion which requires compliance with Secs. 4-
deemed suspended from the filing of such original action until the 6 of Rule 15.
finality of the judgment of annulment. However, the prescriptive
period shall not be suspended where the extrinsic-fraud is Opposition: the requirements under Rule 15 must be complied with to allow
attributable to the plaintiff in the original action. (n) the losing party to oppose on the ground that the judgment has not been
executory as to the obligor since he received it in a different date than the
Other Provisions: party filing the motion.

Section 5. Action by the court. — Should the court find no substantial Mandamus; Alternative Remedy: is the remedy if the trial court refuses
merit in the petition, the same may be dismissed outright with specific to issue the writ of execution, when it is a matter of right. But, under the
reasons for such dismissal. present rules, you can file a motion with the appellate court praying that an
order be issued directing the court of origin to issue the writ of execution, no
Should prima facie merit be found in the petition, the same shall be given need to initiate a special civil action for mandamus.
due course and summons shall be served on the respondent. (n)
When Execution would be Unjust and Inequitable: Settled is the rule
Section 6. Procedure. — The procedure in ordinary civil cases shall be that a judgment that has acquired finality becomes immutable and unalterable
observed. Should trial be necessary, the reception of the evidence may be and may no longer be modified in any respect except only to correct clerical
referred to a member of the court or a judge of a Regional Trial Court. (n) errors or mistakes. True, this rule admits of certain exceptions. One of these
exceptions is whenever circumstances transpire after the finality of
the decision rendering its execution unjust and inequitable. (Villaruel,
Section 9. Relief available. — The judgment of annulment may include
Jr. vs. Fernando)
the award of damages, attorney's fees and other relief.
It may happen that new facts and circumstances may develop or occur after
If the questioned judgment or final order or resolution had already been
a judgment had been rendered and while an appeal therefrom is pending; or
executed the court may issue such orders of restitution or other relief as
new matters had developed after the appeal has been dismissed and the
justice and equity may warrant under the circumstances. (n)
appealed judgment had become final and executory, which the parties were
not aware of and could not have been aware of prior to or during the trial or
VIII. RULE 39: EXECUTION
during the appeal, as they were not yet in existence at that time. The
execution may be stayed, notwithstanding the affirmance of the appealed
A. KINDS OF EXECUTION
judgment by the Supreme Court. (Sps. Serrano vs. CA)
1. Matter of Right; Ministerial
The supervening facts and circumstances must either have a direct effect
upon the matter already litigated and settled or create a substantial change
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61 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
in the rights or relations of the parties therein which would render the judgments as are now or may hereafter be declared to be immediately
execution of a final judgment unjust, impossible or inequitable or when it executory, shall be enforceable after their rendition and shall not, be
becomes imperative in the interest of justice. (Sps. Serrano vs. CA) stayed by an appeal taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its discretion may make
When the event happened before the finality; when the case raised an order suspending, modifying, restoring or granting the injunction,
as a supervening event is entirely separate and distinct: it is not receivership, accounting, or award of support.
considered a supervening event that warrants the stay of the execution of the
decision of the trial court. Furthermore, the resolution of the ombudsman did The stay of execution shall be upon such terms as to bond or otherwise as
not and could not supersede the decision of the trial court since they are may be considered proper for the security or protection of the rights of the
completely different, clearly separate and distinct. (Villaruel vs. Fernando) adverse party. (4a)

2. Discretionary Rationale: because of very nature of the following cases, i.e., immediately
executory: (IRASO)
Section 2. Discretionary execution. — 1. Injunction;
(a) Execution of a judgment or final order pending appeal. — On 2. Receivership;
motion of the prevailing party with notice to the adverse party filed in the 3. Accounting;
trial court while it has jurisdiction over the case and is in possession of 4. Support;
either the original record or the record on appeal, as the case may be, at 5. Other judgments declared to be immediately executory.
the time of the filing of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the expiration of the Requisites: for the execution of a judgment pending appeal:
period to appeal. a) a motion must be filed by the prevailing party with notice to the adverse
party;
After the trial court has lost jurisdiction the motion for execution pending b) there must be good reasons for execution pending appeal; and
appeal may be filed in the appellate court. c) the good reasons must be stated in a special order. (City of Iligan vs.
Principal Management Group Inc.)
Discretionary execution may only issue upon good reasons to be stated in
a special order after due hearing. Good reasons consist of compelling circumstances that justify the
immediate execution of a judgment, lest it become illusory; or the
(b) Execution of several, separate or partial judgments. — A prevailing party be unable to enjoy it after the lapse of time, considering
several, separate or partial judgment may be executed under the same the tactics of the adverse party who may have no recourse but to delay.
terms and conditions as execution of a judgment or final order pending (City of Iligan vs. Principal Management Group Inc.)
appeal. (2a)
Examples of good reasons based on jurisprudence:
Residual Jurisdiction: when an appeal has been taken, the motion for 1. If the appeal is merely dilatory. Normally, the trial court is not
execution pending appeal may be filed with: allowed to assess its own judgment and to hold that an appeal may
1. Court of Origin – when the records have not been transmitted yet; not prosper, or that it would merely be dilatory. However, they may
2. Appellate Court – when the records were already transmitted. However, do so if there are circumstances that indisputably serve as cogent
the motion’s prayer is only for the issuance of an order directing the bases for arriving at such a conclusion. (City of Iligan vs. Principal
court of origin to issue a writ of execution. The appellate court cannot Management Group Inc.)
issue the writ of execution itself. 2. Advanced age: as any delay in the final disposition of the case may
deny the party of his right to enjoy fully the money he has with the
An order of dismissal without prejudice, after reconsideration (due defendant bank. (FEBTC vs. Toh)
to intention of parties to submit to compromise) is not revived by 3. To discharge the functions of his office as a government
the failure of the parties to reach a settlement agreement. If it is so: official: a combination of two or more of the following good reasons
1. The trial court would not have any jurisdiction to issue subsequent orders would suffice: (a) public interest is involved or will of the electorate;
denying a motion to set the case for pre-trial; and (b) the shortness of the remaining portion of the term of the contested
2. To deny a notice of appeal on the ground that the orders assailed are office; and (c) the length of time that the election contest has been
interlocutory – which would mean that there is something more to be pending. (Santos vs. COMELEC)
done with the case. (RCBC vs. Magwin Marketing Corporation)
No execution pending appeal:
Supersedeas Bond; Stay of Discretionary Execution: to stay the 1. When the appeal taken is meritorious;
execution pending appeal, the adverse party may file a supersedeas bond: 2. When there is no superior circumstance that outweigh the damages that
may result from the issuance of the writ. E.g., when the wife, after legal
Section 3. Stay of discretionary execution. — Discretionary separation, wants a writ of execution covering the house where the
execution issued under the preceding section may be stayed upon husband lived, when she did not intend to use the said house and resides
approval by the proper court of a sufficient supersedeas bond filed by permanently in the US with 2 properties, where the husband has none.
the party against whom it is directed, conditioned upon the (Banez vs. Banez)
performance of the judgment or order allowed to be executed in case 3. Absence of good reasons - the posting of a bond, standing alone and
it shall be finally sustained in whole or in part. The bond thus given absent the good reasons required under Section 2, Rule 39 of the Rules,
may be proceeded against on motion with notice to the surety. (3a ) is not enough to allow execution pending appeal. In this case, the reason
propounded, i.e., the sickness of the husband, was not considered since
Different from Supersedeas Bond under Rule 70: under Rule 70 the party to the case was the wife. (Stronghold Insurance Company, Inc.
(forcible entry/unlawful detainer), the supersedeas bond is equivalent to the vs. Felix)
rentals in arrears. Under Sec. 3, Rule 39, the supersedeas bond is dependent 4. Eminent Domain proceedings – funds of government should be
on the discretion of the court which should answer for any damages that may specifically appropriated by law. Execution cannot lie to create confusion
be incurred by the moving party due to the stay of the execution. as to the funds’ application. The court therefore cannot entertain
execution pending appeal of expropriation cases.
Judgments not stayed by appeal
B. MODES OF EXECUTION
Section 4. Judgments not stayed by appeal. — Judgments in actions
for injunction, receivership, accounting and support, and such other
Cesar Nickolai F. Soriano Jr.
62 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 6. Execution by motion or by independent action. — A final party to a litigation. Execution of a judgment can be issued only against a
and executory judgment or order may be executed on motion within five party to the action and not against one who did not have his day in court.
(5) years from the date of its entry. After the lapse of such time, and before (Panotes vs. CTDC)
it is barred by the statute of limitations, a judgment may be enforced by
action. The revived judgment may also be enforced by motion within five C. MANNER OF EXECUTION
(5) years from the date of its entry and thereafter by action before it is
barred by the statute of limitations. (6a) Liability for Contempt: is with the sheriff, since the writ is addressed to
him, not the party.
1. By Motion – only within 5 years from date of entry.
1. When Party is Dead
Except: when the delay is caused or occasioned by actions of the
judgment obligor and/or is incurred for his benefit or advantage. (see Section 7. Execution in case of death of party. — In case of the death
RCBC vs. Serra) of a party, execution may issue or be enforced in the following manner:

In the said case, pending appeal of the decision of the trial court granting (a) In case of the death of the judgment obligee, upon the application of
specific performance ordering Serra to execute a deed of sale in favor of his executor or administrator, or successor in interest;
RCBC, the former donated the subject land to her mother, who thereafter (b) In case of the death of the judgment obligor, against his executor or
sold it. RCBC first sought nullification of the donation and sale prior to administrator or successor in interest, if the judgment be for the recovery
executing the judgment but more than 5 years passed. The SC held that of real or personal property, or the enforcement of a lien thereon;
this constituted an exception since the delay is caused or occasioned by (c) In case of the death of the judgment obligor, after execution is actually
the actions of the judgment obligor. levied upon any of his property, the same may be sold for the satisfaction
of the judgment obligation, and the officer making the sale shall account
The Court has reiterated that the purpose of prescribing limitations for to the corresponding executor or administrator for any surplus in his
enforcing judgments is to prevent parties from sleeping on their rights. hands. (7a)
Far from sleeping on its own rights, RCBC pursued persistently its action
against Serra in accordance with law. Death of:
a. Obligee – the writ may be enforced upon application of his executor,
2. By Independent Action – after the lapse of 5 years, the judgment administrator or successor in interest;
may be executed only after revival thereof through an action to revive b. Obligor – when death occurred:
the judgment. • Before execution
i. Recovery of real or personal property or enforcement of a lien
An action for revival of judgment is no more than a procedural means of thereon - it may be enforced against his executor or
securing the execution of a previous judgment which has become administrator or successor in interest under Sec. 1 of Rule 87.
dormant after the passage of five years without it being executed upon ii. If money claims – no writ of execution is necessary, because
motion of the prevailing party. It is not intended to re-open any issue it will be enforced as a money claim against the estate under
affecting the merits of the judgment debtor’s case nor the propriety or Sec. 5, Rule 86.
correctness of the first judgment. (Panotes vs. CTDC)
• After execution is actually levied upon any of his property – the
Where to File Action to Revive Judgment: it depends on the amount of same may still be sold for the satisfaction of the judgment
the claim or if it is capable of pecuniary estimation, and not necessarily with obligation, and the officer making the sale shall account to the
the same court since the action is separate and distinct from the judgment corresponding executor or administrator for any surplus in his
sought to be revived. hands.

Example: the RTC rendered judgment for P500,000 and a writ was secured 2. When Judgment is for Money
for its execution. The obligee was able to collect P350,000. After the lapse of
5 years, the obligee can no longer use the same writ, as such he must file for Section 9. Execution of judgments for money, how enforced. —
an action to revive judgment. Since the remaining claim is only P150,000 the
action for revival of judgment must be filed with the MTC. (a) Immediate payment on demand. — The officer shall enforce an
execution of a judgment for money by demanding from the judgment
However still, if the judgment is not capable of pecuniary estimation, then the obligor the immediate payment of the full amount stated in the writ of
jurisdiction therefor will be with the RTC. (Brondial, 2016) execution and all lawful fees. The judgment obligor shall pay in cash,
certified bank check payable to the judgment obligee, or any other form
Judgment granting revival: is separate and distinct from the judgment of payment acceptable to the latter, the amount of the judgment debt
revived and must therefor have its own entry. under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be
No limit: if after revival, 5 years has elapsed already, you can still file an handed under proper receipt to the executing sheriff who shall turn over
action for revival of judgment, provided it is still not prescribed, which is the said amount within the same day to the clerk of court of the court that
usually for 10 years counted from the date of entry of the judgment sought issued the writ.
to be revived, not the original judgment.
If the judgment obligee or his authorized representative is not present to
Coverage: the action is limited to reviving the judgment. As such, there is receive payment, the judgment obligor shall deliver the aforesaid payment
no need to present evidence anew nor can the judgment be modified. to the executing sheriff. The latter shall turn over all the amounts coming
into his possession within the same day to the clerk of court of the court
Subsequent buyers in good faith of lot covered by a judgment to be that issued the writ, or if the same is not practicable, deposit said amounts
an open space to be provided by developer-seller: An action to revive to a fiduciary account in the nearest government depository bank of the
the judgment cannot enforce the original judgment against an ordinary buyer Regional Trial Court of the locality.
of a lot, in good faith and for value. The obligation of the developer to provide
an open space does not transfer to such buyer. The clerk of said court shall thereafter arrange for the remittance of the
deposit to the account of the court that issued the writ whose clerk of court
Furthermore, strangers to a case are not bound by the judgment rendered by shall then deliver said payment to the judgment obligee in satisfaction of
a court. It will not divest the rights of a party who has not and never been a the judgment. The excess, if any, shall be delivered to the judgment
Cesar Nickolai F. Soriano Jr.
63 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
obligor while the lawful fees shall be retained by the clerk of court for a. by leaving a copy of the writ of execution and entry of judgment together
disposition as provided by law. In no case shall the executing sheriff with a copy of the judgment to the person owing such debt or in
demand that any payment by check be made payable to him. possession of such credits;
b. a report shall be filed within 5 days from such service;
(b) Satisfaction by levy. — If the judgment obligor cannot pay all or c. if the amount is not sufficient, the report shall state how much was
part of the obligation in cash, certified bank check or other mode of garnished;
payment acceptable to the judgment obligee, the officer shall levy upon d. any garnished amounts received in cash or certified check shall be
the properties of the judgment obligor of every kind and nature delivered to the obligee within 10 working days from service.
whatsoever which may be disposed, of for value and not otherwise exempt
from execution giving the latter the option to immediately choose which Levy: is taking legal custody of real or personal properties if the judgment
property or part thereof may be levied upon, sufficient to satisfy the obligor cannot pay all or part of the obligation in cash, certified bank check or
judgment. If the judgment obligor does not exercise the option, the officer other mode of payment acceptable to the obligee.
shall first levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for the Choice of which property: is with the obligor. If he does not exercise said
judgment. option, the officer shall first levy on the personal properties, if insufficient,
then on the real properties.
The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon. How done; Personal Property:
a. Sheriff takes actual custody of it if it is capable of manual delivery and
When there is more property of the judgment obligor than is sufficient to places it in court premises and not use the same for personal matters,
satisfy the judgment and lawful fees, he must sell only so much of the otherwise he may be liable for administrative charges, even if at the
personal or real property as is sufficient to satisfy the judgment and lawful order of the judge, the judge may likewise be held liable.
fees. b. Otherwise, the personal property must be duly ascertained that it is in
place and a copy of the writ to the one in charge of the property and
Real property, stocks, shares, debts, credits, and other personal property, such becomes in custodia legis.
or any interest in either real or personal property, may be levied upon in
like manner and with like effect as under a writ of attachment. How done; Real Property: by annotation in the office of the register of deeds
of the place where the property is located. By the annotation, the property
(c) Garnishment of debts and credits. — The officer may levy on debts becomes in custodia legis.
due the judgment obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other personal property not If property is UNREGISTERED: the sheriff shall secure a copy of the tax
capable of manual delivery in the possession or control of third parties. declaration in the name of the judgment obligor and have the same registered
Levy shall be made by serving notice upon the person owing such debts with the register of deeds.
or having in his possession or control such credits to which the judgment
obligor is entitled. The garnishment shall cover only such amount as will 3. When Judgment is for Specific Act
satisfy the judgment and all lawful fees.
Section 10. Execution of judgments for specific act. —
The garnishee shall make a written report to the court within five (5) days (a) Conveyance, delivery of deeds, or other specific acts; vesting
from service of the notice of garnishment stating whether or not the title. — If a judgment directs a party to execute a conveyance of land or
judgment obligor has sufficient funds or credits to satisfy the amount of personal property, or to deliver deeds or other documents, or to perform,
the judgment. If not, the report shall state how much funds or credits the any other specific act in connection therewith, and the party fails to comply
garnishee holds for the judgment obligor. The garnished amount in cash, within the time specified, the court may direct the act to be done at the
or certified bank check issued in the name of the judgment obligee, shall cost of the disobedient party by some other person appointed by the court
be delivered directly to the judgment obligee within ten (10) working days and the act when so done shall have like effect as if done by the party. If
from service of notice on said garnishee requiring such delivery, except real or personal property is situated within the Philippines, the court in lieu
the lawful fees which shall be paid directly to the court. of directing a conveyance thereof may by an order divest the title of any
party and vest it in others, which shall have the force and effect of a
In the event there are two or more garnishees holding deposits or credits conveyance executed in due form of law. (10a)
sufficient to satisfy the judgment, the judgment obligor, if available, shall
have the right to indicate the garnishee or garnishees who shall be (b) Sale of real or personal property. — If the judgment be for the
required to deliver the amount due, otherwise, the choice shall be made sale of real or personal property, to sell such property, describing it, and
by the judgment obligee. apply the proceeds in conformity with the judgment. (8[c]a)
The executing sheriff shall observe the same procedure under paragraph
(a) with respect to delivery of payment to the judgment obligee. (8a, 15a) (c) Delivery or restitution of real property. — The officer shall
demand of the person against whom the judgment for the delivery or
If payment is made to the sheriff: payment to the sheriff is not a valid restitution of real property is rendered and all persons claiming rights
satisfaction of judgment. If payment is thus made to the sheriff, the rule under him to peaceably vacate the property within three (3) working days,
provides that the sheriff should turn the money over to the clerk of court that and restore possession thereof to the judgment obligee, otherwise, the
issued the writ or deposit the same in a fiduciary account in the nearest officer shall oust all such persons therefrom with the assistance, if
government depository bank of the RTC of the locality within the same day. necessary, of appropriate peace officers, and employing such means as
may be reasonably necessary to retake possession, and place the
Check Payment: is valid only if made payable to the order of the judgment judgment obligee in possession of such property. Any costs, damages,
obligee and acceptable to him. Otherwise, if made payable to the sheriff, or rents or profits awarded by the judgment shall be satisfied in the same
to cash, it is not a valid satisfaction of judgment. manner as a judgment for money. (13a)

Garnishment: is taking legal custody of debts due to the obligor or credits, (d) Removal of improvements on property subject of execution.
including bank deposits, financial interests, royalties, commissions and other — When the property subject of the execution contains improvements
personal property not capable of manual delivery in the possession or control constructed or planted by the judgment obligor or his agent, the officer
of third parties. shall not destroy, demolish or remove said improvements except upon
special order of the court, issued upon motion of the judgment obligee
How done:
Cesar Nickolai F. Soriano Jr.
64 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
after the hearing and after the former has failed to remove the same within (h) One fishing boat and accessories not exceeding the total value of
a reasonable time fixed by the court. (14a) one hundred thousand pesos owned by a fisherman and by the lawful use
of which he earns his livelihood;
(e) Delivery of personal property. — In judgment for the delivery of (i) So much of the salaries, wages, or earnings of the judgment obligor
personal property, the officer shall take possession of the same and for his personal services within the four months preceding the levy as are
forthwith deliver it to the party entitled thereto and satisfy any judgment necessary for the support of his family;
for money as therein provided. (8a) (j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any
Specific Performance: then the sheriff must undertake that the act shall be manner growing out of any life insurance;
done. (l) The right to receive legal support, or money or property obtained
as such support, or any pension or gratuity from the Government;
Unlawful Detainer: the judgment will consist of the obligor vacating the (m) Properties specially exempted by law.
premises. He must be given 3 or 5 days to do so.
But no article or species of property mentioned in this section shall be
Remedy: If they failed to do so, the remedy of the sheriff is to seek assistance exempt from execution issued upon a judgment recovered for its price or
from peace officers to forcibly eject the judgment obligor, not for the obligee upon a judgment of foreclosure of a mortgage thereon. (12a)
to file contempt charges. This is because the writ is addressed to the sheriff
and not the obligor. Exemptions under this rule are confined only to natural persons and not to
juridical entities such as petitioner. Thus, the rule speaks of salaries,
If obligor returns: the sheriff can now cite the obligor in contempt. wages and earning from the ‘personal services’ rendered by the judgment
obligor. The rule further requires that such earnings be intended for the
Demolition: cannot be done immediately, a court order for demolition must support of the judgment debtor’s family
be first secured.
The exemption contemplated by the provision involved is personal,
4. When it is a Special Judgment available only to a natural person, such as a dentist’s dental chair
and electric fan (Belen v. de Leon, G.R. No. L-15612, 30 Nov. 1962). As
Section 11. Execution of special judgments. — When a judgment pointed out by the Solicitor General, if properties used in business are
requires the performance of any act other than those mentioned in the exempt from execution, there can hardly be an instance when a
two preceding sections, a certified copy of the judgment shall be attached judgment claim can be enforced against the business entity’. (D’
to the writ of execution and shall be served by the officer upon the party Armoured Security and Investigation Agency vs. Orpia, et al.)
against whom the same is rendered, or upon any other person required
thereby, or by law, to obey the same, and such party or person may be E. THIRD PARTY CLAIM
punished for contempt if he disobeys such judgment. (9a)
Section 16. Proceedings where property claimed by third person.
Judgment to withdraw money: the sheriff must accompany the obligor and — If the property levied on is claimed by any person other than the
ask him to withdraw from the bank. This is considered a special judgment judgment obligor or his agent, and such person makes an affidavit of his
since no other person can perform the act other than the judgment obligor. title thereto or right to the possession thereof, stating the grounds of such
right or title, and serves the same upon the officer making the levy and
If the judgment can be performed by another at the expense of the obligor, copy thereof, stating the grounds of such right or tittle, and a serves the
then Sec. 10 applies. same upon the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the property,
Contempt: generally, the judgment obligor cannot be held in contempt since unless such judgment obligee, on demand of the officer, files a bond
the writ is directed towards the sheriff. However, under Sec. 11, the act can approved by the court to indemnity the third-party claimant in a sum not
only be performed by the judgment obligor and said provision specifically less than the value of the property levied on. In case of disagreement as
punishes him for contempt. to such value, the same shall be determined by the court issuing the writ
of execution. No claim for damages for the taking or keeping of the
D. PROPERTIES EXEMPT FROM EXECUTION property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of
Section 13. Property exempt from execution. — Except as otherwise the bond.
expressly provided by law, the following property, and no other, shall be
exempt from execution: The officer shall not be liable for damages for the taking or keeping of the
(a) The judgment obligor's family home as provided by law, or the property, to any third-party claimant if such bond is filed. Nothing herein
homestead in which he resides, and land necessarily used in connection contained shall prevent such claimant or any third person from vindicating
therewith; his claim to the property in a separate action, or prevent the judgment
(b) Ordinary tools and implements personally used by him in his trade, obligee from claiming damages in the same or a separate action against a
employment, or livelihood; third-party claimant who filed a frivolous or plainly spurious claim.
(c) Three horses, or three cows, or three carabaos, or other beasts
of burden, such as the judgment obligor may select necessarily used by When the writ of execution is issued in favor of the Republic of the
him in his ordinary occupation; Philippines, or any officer duly representing it, the filing of such bond shall
(d) His necessary clothing and articles for ordinary personal use, not be required, and in case the sheriff or levying officer is sued for
excluding jewelry; damages as a result of the levy, he shall be represented by the Solicitor
(e) Household furniture and utensils necessary for housekeeping, and General and if held liable therefor, the actual damages adjudged by the
used for that purpose by the judgment obligor and his family, such as the court shall be paid by the National Treasurer out of such funds as may be
judgment obligor may select, of a value not exceeding one hundred appropriated for the purpose. (17a)
thousand pesos; (P100,000)
(f) Provisions for individual or family use sufficient for four months; Different form a third party complaint: a third party claim happens on
(g) The professional libraries and equipment of judges, lawyers, auction sale on execution, foreclosure, replevin or attachment. A third party
physicians, pharmacists, dentists, engineers, surveyors, clergymen, complaint is covered under Rule 3, which contains a claim that a defending
teachers, and other professionals, not exceeding three hundred thousand party may file against a person not a party to the action for contribution,
pesos in value; (P300,000) indemnity, subrogation or any other relief, in respect of his opponent's claim.

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65 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Third party claimant in Execution compared to replevin and parties or if the parties are not around, depending on the sheriff giving notice
attachment: in foreclosure, the third party can only vindicate his claim in a to the parties.
SEPARATE ACTION, unlike in attachment and replevin where the third party
claimant can vindicate his claim in the SAME or SEPARATE action through an When judgment obligee may be required to pay: as a rule, if the obligee
intervention. (Sec. 14, Rule 57 and Sec. 7, Rule 60) is the highest bidder, he is not required to pay. The exceptions are:
a. When there is a third party claim which puts into issue the ownership of
F. EXECUTION SALE the property.
b. When the judgment obligee bids higher than his claim.
3 BASIC REQUIREMENTS:
a. Notice; Section 17. Penalty for selling without notice, or removing or
b. Posting; defacing notice. — An officer selling without the notice prescribed by
c. Publication section 15 of this Rule shall be liable to pay punitive damages in the
amount of five thousand (P5,000.00) pesos to any person injured thereby,
Section 15. Notice of sale of property on execution. — Before the in addition to his actual damages, both to be recovered by motion in the
sale of property on execution, notice thereof must be given as follows: same action; and a person willfully removing or defacing the notice posted,
if done before the sale, or before the satisfaction of the judgment if it be
(a) In case of perishable property, by posting written notice of the time satisfied before the sale, shall be liable to pay five thousand (P5,000.00)
and place of the sale in three (3) public places, preferably in conspicuous pesos to any person injured by reason thereof, in addition to his actual
areas of the municipal or city hall, post office and public market in the damages, to be recovered by motion in the same action. (19a)
municipality or city where the sale is to take place, for such time as may
be reasonable, considering the character and condition of the property; Section 18. No sale if judgment and costs paid. — At any time before
the sale of property on execution, the judgment obligor may prevent the
(b) In case of other personal property, by posting a similar notice in the sale by paying the amount required by the execution and the costs that
three (3) public places above-mentioned for not less than five (5) days; have been incurred therein. (20a)

(c) In case of real property, by posting for twenty (20) days in the three Section 19. How property sold on execution; who may direct
(3) public places abovementioned a similar notice particularly describing manner and order of sale. — All sales of property under execution must
the property and stating where the property is to be sold, and if the be made at public auction, to the highest bidder, to start at the exact time
assessed value of the property exceeds fifty thousand (P50,000.00) pesos, fixed in the notice. After sufficient property has been sold to satisfy the
by publishing a copy of the notice once a week for two (2) consecutive execution, no more shall be sold and any excess property or proceeds of
weeks in one newspaper selected by raffle, whether in English, Filipino, or the sale shall be promptly delivered to the judgment obligor or his
any major regional language published, edited and circulated or, in the authorized representative, unless otherwise directed by the judgment or
absence thereof, having general circulation in the province or city; order of the court. When the sale is of real property, consisting of several
known lots, they must be sold separately; or, when a portion of such real
(d) In all cases, written notice of the sale shall be given to the judgment property is claimed by a third person, he may require it to be sold
obligor, at least three (3) days before the sale, except as provided in separately. When the sale is of personal property capable of manual
paragraph (a) hereof where notice shall be given the same manner as delivery, it must be sold within view of those attending the same and in
personal service of pleadings and other papers as provided by section 6 of such parcels as are likely to bring the highest price. The judgment obligor,
Rule 13. if present at the sale, may direct the order in which property, real or
personal shall be sold, when such property consists of several known lots
The notice shall specify the place, date and exact time of the sale which or parcels which can be sold to advantage separately. Neither the officer
should not be earlier than nine o'clock in the morning and not later than conducting the execution sale, nor his deputies, can become a purchaser,
two o'clock in the afternoon. The place of the sale may be agreed upon by nor be interested directly or indirectly in any purchase at such sale. (21a)
the parties. In the absence of such agreement, the sale of the property or
personal property not capable of manual delivery shall be held in the office Section 20. Refusal of purchaser to pay. — If a purchaser refuses to
of the clerk of court of the Regional Trial Court or the Municipal Trial Court pay the amount bid by him for property struck off to him at a sale under
which issued the writ of or which was designated by the appellate court. execution, the officer may again sell the property to the highest bidder and
In the case of personal property capable of manual delivery, the sale shall shall not be responsible for any loss occasioned thereby; but the court may
be held in the place where the property is located. (18a) order the refusing purchaser to pay into the court the amount of such loss,
with costs, and may punish him for contempt if he disobeys the order. The
Notice to whom: the judgment obligor. Otherwise, the auction becomes amount of such payment shall be for the benefit of the person entitled to
irregular and may be invalidated. It must be given 3 days before the date of the proceeds of the execution, unless the execution has been fully
sale, except when the goods to be sold are perishable. satisfied, in which event such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject any subsequent bid of
How long is posting necessary: such purchaser who refuses to pay. (22a)
a. If perishable goods: posting may be required but only for a day or two;
b. If personal properties, capable of manual delivery: not less than 5 days, Section 21. Judgment obligee as purchaser. — When the purchaser
otherwise, it may be more depending on the court. is the judgment obligee, and no third-party claim has been filed, he need
c. If real property – 20 days. not pay the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the excess. (23a)
When done: the places stated in the rules are not mandatory but only
suggestive. What is important is where as many people as possible can read
Section 22. Adjournment of sale. — By written consent of the
it, e.g., municipal building, public market, post offices.
judgment obligor and obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time agreed upon by them.
Publication: is generally not necessary. Only when the assessed value of the
Without such agreement, he may adjourn the sale from day to day if it
real property exceeds P50,000, publication must be done, once a week in 2
becomes necessary to do so for lack of time to complete the sale on the
consecutive weeks in a newspaper of general circulation.
day fixed in the notice or the day to which it was adjourned. (24a)
Auction Sale; Time: must be done between the hours of 9am to 2pm and
Section 23. Conveyance to purchaser of personal property
may be adjourned from time to time depending on the agreements of the
capable of manual delivery. — When the purchaser of any personal

Cesar Nickolai F. Soriano Jr.


66 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
property, capable of manual delivery, pays the purchase price, the officer to the time of redemption, together with the amount of any assessments
making the sale must deliver the property to the purchaser and, if desired, or taxes which the purchaser may have paid thereon after purchase, and
execute and deliver to him a certificate of sale. The sale conveys to the interest on such last named amount at the same rate; and if the purchaser
purchaser all the rights which the judgment obligor had in such property be also a creditor having a prior lien to that of the redemptioner, other
as of the date of the levy on execution or preliminary attachment. (25a) than the judgment under which such purchase was made, the amount of
such other lien, with interest.
Section 24. Conveyance to purchaser of personal property not
capable of manual delivery. — When the purchaser of any personal Property so redeemed may again be redeemed within sixty (60) days after
property, not capable of manual delivery, pays the purchase price, the the last redemption upon payment of the sum paid on the last redemption,
officer making the sale must execute and deliver to the purchaser a with two per centum thereon in addition and the amount of any
certificate of sale. Such certificate conveys to the purchaser all the rights assessments or taxes which the last redemptioner may have paid thereon
which the judgment obligor had in such property as of the date of the levy after redemption by him, with interest on such last named amount, and in
on execution or preliminary attachment. (26a) addition, the amount of any liens held by said last redemptioner prior to
his own, with interest. The property may be again, and as often as a
Section 25. Conveyance of real property; certificate thereof given redemptioner is so disposed, redeemed from any previous redemptioner
to purchaser and filed with registry of deeds. — Upon a sale of real within sixty (60) days after the last redemption, on paying the sum paid
property, the officer must give to the purchaser a certificate of sale on the last previous redemption, with two per centum thereon in addition,
containing: and the amounts of any assessments or taxes which the last previous
(a) A particular description of the real property sold; redemptioner paid after the redemption thereon, with interest thereon,
(b) The price paid for each distinct lot or parcel; and the amount of any liens held by the last redemptioner prior to his own,
(c) The whole price paid by him; with interest.
(d) A statement that the right of redemption expires one (1) year from the
date of the registration of the certificate of sale. Written notice of any redemption must be given to the officer who made
Such certificate must be registered in the registry of deeds of the place the sale and a duplicate filed with the registry of deeds of the place, and
where the property is situated. (27 a) if any assessments or taxes are paid by the redemptioner or if he has or
acquires any lien other than that upon which the redemption was made,
Section 26. Certificate of sale where property claimed by third notice thereof must in like manner be given to the officer and filed with
person. — When a property sold by virtue of a writ of execution has been the registry of deeds; if such notice be not filed, the property may be
claimed by a third person, the certificate of sale to be issued by the sheriff redeemed without paying such assessments, taxes, or liens. (30a)
pursuant to sections 23, 24 and 25 of this Rule shall make express mention
of the existence of such third-party claim. (28a) Redemption period: is 1 year from the date of registration of the certificate
of sale.
G. REDEMPTION
However, for subsequent redemptioners, redemption period is only 60 days
Personal property: redemption is only available if the property sold is real after the last redemption.
property. The same is not available if the property sold is personal property.
Continuous Redemption: if the property is redeemed by a redemptioner,
Registration of Certificate of Sale: is the reckoning point of the right to then other redemptioners have 60 days from the date of redemption, and so
redeem. Such that if the certificate of sale is not registered with the registry on and so forth. But, if the property is redeemed by the judgment obligor
of deeds, the period to redeem does not begin to run. from a redemptioner, no other redemption may redeem from the obligor, as
provided under Sec. 29:
1. The Right of Redemption vs. Equity of Redemption
Section 29. Effect of redemption by judgment obligor, and a
Right of Redemption is the privilege or right of the judgment obligor or certificate to be delivered and recorded thereupon; to whom
redemptioner to redeem the property within a period of 1 year from the payments on redemption made. — If the judgment obligor
registration of the certificate of sale. Equity of Redemption, on the other redeems he must make the same payments as are required to effect
hand, is available only in judicial foreclosure which gives the mortgagor 90 to a redemption by a redemptioner, whereupon, no further redemption
120 days from the time of sale to redeem the property. However, equity of shall be allowed and he is restored to his estate. The person to whom
redemption is not cut until there is order of confirmation of sale. the redemption payment is made must execute and deliver to him a
certificate of redemption acknowledged before a notary public or other
2. Who May Redeem officer authorized to take acknowledgments of conveyances of real
property. Such certificate must be filed and recorded in the registry of
Section 27. Who may redeem real property so sold. — Real property deeds of the place in which the property is situated and the registrar
sold as provided in the last preceding section, or any part thereof sold of deeds must note the record thereof on the margin of the record of
separately, may be redeemed in the manner hereinafter provided, by the the certificate of sale. The payments mentioned in this and the last
following persons: preceding sections may be made to the purchaser or redemptioner, or
for him to the officer who made the sale. (31a)
(a) The judgment obligor; or his successor in interest in the whole
or any part of the property; Rationale for allowing: it extinguishes as many obligations as there are
(b) A creditor having a lien by virtue of an attachment, judgment or redemptions.
mortgage on the property sold, or on some part thereof, subsequent to
the lien under which the property was sold. Such redeeming creditor is Amount to be paid by redemptioner:
termed a redemptioner. (29a) a. Purchase price;
b. Any assessments or taxes paid by the purchaser after the purchase;
Section 28. Time and manner of, and amounts payable c. Interest on the first two at the rate of 1% per month, upto the time of
on, successive redemptions; notice to be given and filed. — The redemption;
judgment obligor, or redemptioner, may redeem the property from the d. If the purchaser be also a creditor with a prior lien, the amount of such
purchaser, at any time within one (1) year from the date of the registration lien with interest.
of the certificate of sale, by paying the purchaser the amount of his
purchase, with the per centum per month interest thereon in addition, up

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Subsequent redemptioner other than the judgment obligor: has 60 shall have the same force and effect as an original judgment would have
days to redeem, from the last redemption by paying the amount paid from as of the date of the revival and no more. (36a)
the last redemption plus 2% thereof.
Purchaser not able to obtain the property, or is evicted therefrom:
Notice: it is required that a notice be given to the officer who made the sale the remedy is provided for under Sec. 34: by motion:
and a copy thereof given to the register of deeds to be entitled to the payment 1. Recover the amount paid with interest, or so much thereof as has not
of assessments, taxes or liens, in case of a subsequent redemption from him. been delivered to the judgment obligor, or
2. He may have the original judgment revived in his name for the whole
Section 33. Deed and possession to be given at expiration of price with interest, or so much thereof as has been delivered to the
redemption period; by whom executed or given. — If no redemption judgment obligor.
be made within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and possession Section 30. Proof required of redemptioner. — A redemptioner must
of the property; or, if so redeemed whenever sixty (60) days have elapsed produce to the officer, or person from whom he seeks to redeem, and
and no other redemption has been made, and notice thereof given, and serve with his notice to the officer a copy of the judgment or final order
the time for redemption has expired, the last redemptioner is entitled to under which he claims the right to redeem, certified by the clerk of the
the conveyance and possession; but in all cases the judgment obligor shall court wherein the judgment or final order is entered, or, if he redeems
have the entire period of one (1) year from the date of the registration of upon a mortgage or other lien, a memorandum of the record thereof,
the sale to redeem the property. The deed shall be executed by the officer certified by the registrar of deeds, or an original or certified copy of any
making the sale or by his successor in office, and in the latter case shall assignment necessary to establish his claim; and an affidavit executed by
have the same validity as though the officer making the sale had continued him or his agent, showing the amount then actually due on the lien. (32a)
in office and executed it.
H. OTHER REMEDIES TO FULLY SATISFY JUDGMENT
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights, title, 1. Examination of Judgment Obligor
interest and claim of the judgment obligor to the property as of the time
of the levy. The possession of the property shall be given to the purchaser Section 36. Examination of judgment obligor when judgment
or last redemptioner by the same officer unless a third party adversely to unsatisfied. — When the return of a writ of execution issued against
the judgment obligor. (35a) property of a judgment obligor, or any one of several obligors in the same
judgment, shows that the judgment remains unsatisfied, in whole or in
Possession; prevention of wastage: of the property sold remains with the part, the judgment obligee, at any time after such return is made, shall be
judgment obligor for the period of redemption. However, the purchaser may entitled to an order from the court which rendered the said judgment,
apply for injunction to prevent the wastage of the property bought as provided requiring such judgment obligor to appear and be examined concerning
under Sec. 31: his property and income before such court or before a commissioner
appointed by it at a specified time and place; and proceedings may
Section 31. Manner of using premises pending thereupon be had for the application of the property and income of the
redemption; waste restrained. — Until the expiration of the time judgment obligor towards the satisfaction of the judgment. But no
allowed for redemption, the court may, as in other proper cases, judgment obligor shall be so required to appear before a court or
restrain the commission of waste on the property by injunction, on commissioner outside the province or city in which such obligor resides or
the application of the purchaser or the judgment obligee, with or is found. (38a)
without notice; but it is not waste for a person in possession of the
property at the time of the sale, or entitled to possession afterwards, 2. Examination of the Obligor of Judgment Obligor
during the period allowed for redemption, to continue to use it in the
same manner in which it was previously used, or to use it in the Section 37. Examination of obligor of judgment obligor. — When
ordinary course of husbandry; or to make the necessary repairs to the return of a writ of execution against the property of a judgment obligor
buildings thereon while he occupies the property. (33a) shows that the judgment remain unsatisfied, in whole or in part, and upon
proof to the satisfaction of the court which issued the writ, that a person,
Section 32. Rents, earnings and income of property pending corporation, or other juridical entity has property of such judgment obligor
redemption. — The purchaser or a redemptioner shall not be entitled to or is indebted to him, the court may, by an order, require such person,
receive the rents, earnings and income of the property sold on execution, corporation, or other juridical entity, or any officer, or member thereof, to
or the value of the use and occupation thereof when such property is in appear before the court or a commissioner appointed by it, at a time and
the possession of a tenant. All rents, earnings and income derived from place within the province or city where such debtor resides or is found,
the property pending redemption shall belong to the judgment obligor until and be examined concerning the same. The service of the order shall bind
the expiration of his period of redemption. (34a) all credits due the judgment obligor and all money and property of the
judgment obligor in the possession or in the control of such person
Fruits and rent: earned from the property, during the period of redemption, corporation, or juridical entity from the time of service; and the court may
shall belong to the judgment OBLIGOR until the expiration of the period of also require notice of such proceedings to be given to any party to the
redemption. action in such manner as it may deem proper. (39a)

Section 34. Recovery of price if sale not effective; revival of 3. Appointment of Receiver
judgment. — If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof, or is evicted Section 41. Appointment of receiver. — The court may appoint a
therefrom, in consequence of irregularities in the proceedings concerning receiver of the property of the judgment obligor; and it may also forbid a
the sale, or because the judgment has been reversed or set aside, or transfer or other disposition of, or any interference with, the property of
because the property sold was exempt from execution, or because a third the judgment obligor not exempt from execution. (43a)
person has vindicated his claim to the property, he may on motion in the
same action or in a separate action recover from the judgment obligee the 4. Sale of Ascertainable Interest
price paid, with interest, or so much thereof as has not been delivered to
the judgment obligor, or he may, on motion, have the original judgment Section 42. Sale of ascertainable interest of judgment obligor in
revived in his name for the whole price with interest, or so much thereof real estate. — If it appears that the judgment obligor has an interest in
as has been delivered to the judgment obligor. The judgment so revived real estate in the place in which proceedings are had, as mortgagor or

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REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
mortgagee or other- wise, and his interest therein can be ABSOLUTE identity of parties is not required: absolute identity of
ascertained without controversy the receiver may be ordered to sell parties is not a condition sine qua non for the application of res
and convey such real estate or the interest of the obligor therein; and such judicata. It is sufficient that there is a shared identity of interest. The
sale shall be conducted in all respects in the same manner as is provided rule is that, even if new parties are found in the second action, res
for the sale of real state upon execution, and the proceedings thereon shall judicata still applies if the party against whom the judgment is offered in
be approved by the court before the execution of the deed. (34a) evidence was a party in the first action; otherwise, a case can always be
renewed by the mere expedience of joining new parties in the new suit. (Perez
5. Sale of Property or Interest in contested property vs. CA)

Section 43. Proceedings when indebtedness denied or another Identity of Causes of Action: The ultimate test to ascertain identity of
person claims the property. — If it appears that a person or causes of action is whether or not the same evidence fully supports and
corporation, alleged to have property of the judgment obligor or to be establishes both the first and second cases. (Perez vs. CA)
indebted to him, claims an interest in the property adverse to him or denied
the debt, the court may authorize, by an order made to that effect, Conclusiveness of Judgment: Section 47(c) of Rule 39 enumerates the
the judgment obligee to institute an action against such person concept of conclusiveness of judgment. This is the second branch, otherwise
or corporation for the recovery of such interest or debt, forbid a known as collateral estoppel or estoppel by verdict. This applies where,
transfer or other disposition of such interest or debt within one between the first case wherein judgment is rendered and the second case
hundred twenty (120) days from notice of the order, and may wherein such judgment is involved, there is no identity of causes of action.
punish disobedience of such order as for contempt. Such order may be
modified or vacated at any time by the court which issued it, or by the It has been held that in order that a judgment in one action can be conclusive
court in which the action is brought, upon such terms as may be just. (45a) as to a particular matter in another action between the same parties or their
privies, it is essential that the issues be identical. If a particular point or
I. JUDGMENT: PRINCIPAL VS. SURETY question is in issue in the second action, and the judgment will depend on the
determination of that particular point or question, a former judgment between
Section 46. When principal bound by judgment against surety. — the same parties will be final and conclusive in the second if that same point
When a judgment is rendered against a party who stands as surety for or question was in issue and adjudicated in the first suit; but the adjudication
another, the latter is also bound from the time that he has notice of the of an issue in the first case is not conclusive of an entirely different and distinct
action or proceeding, and an opportunity at the surety's request to join in issue arising in the second. In order that this rule may be applied, it must
the defense. (48a) clearly and positively appear, either from the record itself or by the aid of
competent extrinsic evidence that the precise point or question in issue in the
J. EFFECT OF JUDGMENT second suit was involved and decided in the first. And in determining whether
a given question was an issue in the prior action, it is proper to look behind
Section 47. Effect of judgments or final orders. — The effect of a the judgment to ascertain whether the evidence necessary to sustain a
judgment or final order rendered by a court of the Philippines, having judgment in the second action would have authorized a judgment for the
jurisdiction to pronounce the judgment or final order, may be as follows: same party in the first action. (Perez vs. CA, see also City of Cebu vs. Dedamo)

(a) In case of a judgment or final order against a specific thing, or in K. EFFECT OF FOREIGN JUDGMENT
respect to the probate of a will, or the administration of the estate of a
deceased person, or in respect to the personal, political, or legal condition Section 48. Effect of foreign judgments or final orders. — The effect
or status of a particular person or his relationship to another, the judgment of a judgment or final order of a tribunal of a foreign country, having
or final order is conclusive upon the title to the thing, the will or jurisdiction to render the judgment or final order is as follows:
administration or the condition, status or relationship of the person,
however, the probate of a will or granting of letters of administration shall (a) In case of a judgment or final order upon a specific thing, the judgment
only be prima facie evidence of the death of the testator or intestate; or final order, is conclusive upon the title to the thing, and
(b) In other cases, the judgment or final order is, with respect to the matter (b) In case of a judgment or final order against a person, the judgment or
directly adjudged or as to any other matter that could have been missed final order is presumptive evidence of a right as between the parties and
in relation thereto, conclusive between the parties and their successors in their successors in interest by a subsequent title.
interest, by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in In either case, the judgment or final order may be repelled by evidence of
the same capacity; and a want of jurisdiction, want of notice to the party, collusion, fraud, or clear
(c) In any other litigation between the same parties or their successors in mistake of law or fact. (50a)
interest, that only is deemed to have been adjudged in a former judgment
or final order which appears upon its face to have been so adjudged, or Grounds to repel a foreign judgment or final order:
which was actually and necessarily included therein or necessary thereto. 1. Want of Jurisdiction;
(49a) 2. Want of Notice to the party;
3. Collusion;
1. In Rem – conclusive upon the title of the thing or the subject matter. 4. Fraud;
E.g., adoption. 5. Clear Mistake of Law or Fact.
2. In Personam – conclusive upon the parties and their successors in
interest Arbitral Award: The above grounds are likewise the grounds to
3. Over Judicata question/contest an arbitral award with the addition that the arbitral award is
contrary to public policy.
Res Judicata: There are four (4) essential requisites which must concur
for the application of this doctrine: FOREIGN JUDGMENT AS BASIS FOR CORRECTION OF ENTRY IN THE
(a) finality of the former judgment – there must be a final judgment; CIVIL REGISTRY: Section 48(b), Rule 39 of the Rules of Court states that
(b) by a competent court – i.e., the court which rendered it had jurisdiction the foreign judgment is already "presumptive evidence of a right between the
over the subject matter and the parties; parties." Upon recognition of the foreign judgment, this right
(c) it must be a judgment on the merits; and becomes conclusive and the judgment serves as the basis for the
(d) there must be, between the first and second actions, identity of parties, correction or cancellation of entry in the civil registry. The recognition
subject matter and causes of action of the foreign judgment nullifying a bigamous marriage is a subsequent event
that establishes a new status, right and fact that needs to be reflected in the
Cesar Nickolai F. Soriano Jr.
69 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
civil registry. Otherwise, there will be an inconsistency between the
recognition of the effectivity of the foreign judgment and the public records When a writ of execution is placed in the hands of a sheriff, it is his duty, in
in the Philippines. (Fujiki vs. Marinay) the absence of contrary instructions, to have it implemented forthwith. The
sheriff is primarily responsible for the speedy and efficient service of all court
OTHER PROVISIONS: processes and writs originating from the court and its branches, including such
as may be properly delegated to him by other courts. (Fajardo vs. Quitalig)
Section 5. Effect of reversal of executed judgment. — Where the
executed judgment is reversed totally or partially, or annulled, on appeal “Heavy Workload” is not an excuse for unreasonable delay for
or otherwise, the trial court may, on motion, issue such orders of implementation of the writ: the final stage in the litigation process -- the
restitution or reparation of damages as equity and justice may warrant execution of judgment -- must be carried out promptly. They should exert
under the circumstances. (5a) every effort and indeed consider it their bounden duty to do so, in order to
ensure the speedy and efficient administration of justice. A decision that is
Section 8. Issuance, form and contents of a writ of execution. — left unexecuted or delayed indefinitely because of the sheriff’s inefficiency or
The writ of execution shall: (1) issue in the name of the Republic of the negligence remains an empty victory on the part of the prevailing party. For
Philippines from the court which granted the motion; (2) state the name this reason, any inordinate delay in the execution of judgment is truly
of the court, the case number and title, the dispositive part of the subject deplorable and cannot be countenanced by the Court.
judgment or order; and (3) require the sheriff or other proper officer to
whom it is directed to enforce the writ according to its terms, in the manner The excuse proffered by respondent sheriff -- heavy workload -- cannot
hereinafter provided: absolve him from administrative sanctions. As an officer of the court, he
(a) If the execution be against the property of the judgment obligor, to should at all times show a high degree of professionalism in the performance
satisfy the judgment, with interest, out of the real or personal property of of his duties. (Sps. Morta vs. Bagagnan)
such judgment obligor;
(b) If it be against real or personal property in the hands of personal Section 35. Right to contribution or reimbursement. — When
representatives, heirs, devisees, legatees, tenants, or trustees of the property liable to an execution against several persons is sold thereon, and
judgment obligor, to satisfy the judgment, with interest, out of such more than a due proportion of the judgment is satisfied out of the proceeds
property; of the sale of the property of one of them, or one of them pays, without a
(c) If it be for the sale of real or personal property to sell such property sale, more than his proportion, he may compel a contribution from the
describing it, and apply the proceeds in conformity with the judgment, the others; and when a judgment is upon an obligation of one of them, as
material parts of which shall be recited in the writ of execution; security for another, and the surety pays the amount, or any part thereof,
(d) If it be for the delivery of the possession of real or personal property, either by sale of his property or before sale, he may compel repayment
to deliver the possession of the same, describing it, to the party entitled from the principal. (37a)
thereto, and to satisfy any costs, damages, rents, or profits covered by the
judgment out of the personal property of the person against whom it was Section 38. Enforcement of attendance and conduct of
rendered, and if sufficient personal property cannot be found, then out of examination. — A party or other person may be compelled, by an order
the real property; and or subpoena, to attend before the court or commissioner to testify as
(e) In all cases, the writ of execution shall specifically state the amount provided in the two preceding sections, and upon failure to obey such
of the interest, costs, damages, rents, or profits due as of the date of the order or subpoena or to be sworn, or to answer as a witness or to subscribe
issuance of the writ, aside from the principal obligation under the his deposition, may be punished for contempt as in other cases.
judgment. For this purpose, the motion for execution shall specify the Examinations shall not be unduly prolonged, but the proceedings may be
amounts of the foregoing reliefs sought by the movant.(8a) adjourned from time to time, until they are completed. If the examination
is before a commissioner, he must take it in writing and certify it to the
Section 12. Effect of levy on execution as to third person. — The court. All examinations and answers before a court commissioner must be
levy on execution shall create a lien in favor of the judgment obligee over under oath, and when a corporation or other juridical entity answers, it
the right, title and interest of the judgment obligor in such property at the must be on the oath of an authorized officer or agent thereof. (40a)
time of the levy, subject to liens and encumbrances then existing. (16a)
Section 39. Obligor may pay execution against obligee. — After a
Section 14. Return of writ of execution. — The writ of execution shall writ of execution against property has been issued, a person indebted to
be returnable to the court issuing it immediately after the judgment has the judgment obligor may pay to the sheriff holding the writ of execution
been satisfied in part or in full. If the judgment cannot be satisfied in full the amount of his debt or so much thereof as may be necessary to satisfy
within thirty (30) days after his receipt of the writ, the officer shall report the judgment, in the manner prescribed in section 9 of this Rule, and the
to the court and state the reason therefor. Such writ shall continue in effect sheriff's receipt shall be a sufficient discharge for the amount so paid or
during the period within which the judgment may be enforced by motion. directed to be credited by the judgment obligee on the execution. (41a)
The officer shall make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in full, or its Section 40. Order for application of property and income to
effectivity expires. The returns or periodic reports shall set forth the whole satisfaction of judgment. — The court may order any property of the
of the proceedings taken, and shall be filed with the court and copies judgment obligor, or money due him, not exempt from execution, in the
thereof promptly furnished the parties. (11a) hands of either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the judgment, subject
Full Satisfaction of the Judgment: is when: to any prior rights over such property.
1. The WRIT itself is returned to the court – note that the writ has no term,
Sec. 14 above just requires the sheriff to make a return and report to If, upon investigation of his current income and expenses, it appears that
the court the progress of the execution. But once the judgment is fully the earnings of the judgment obligor for his personal services are more
satisfied, the writ itself will be returned to the court; than necessary for the support of his family, the court may order that he
2. There is written acknowledgment of the judgment obligee. pay the judgment in fixed monthly installments, and upon his failure to
pay any such installment when due without good excuse, may punish him
Duty of Sheriff to make a return within 30 days from receipt of the for indirect contempt. (42a)
writ: Within 30 days from receipt thereof and every 30 days thereafter until
the judgment is fully satisfied, a sheriff is required by the Rules of Court to Section 44. Entry of satisfaction of judgment by clerk of court. —
render a report on the action taken on a writ of execution. Satisfaction of a judgment shall be entered by the clerk of court in the
court docket, and in the execution book, upon the return of a writ of
The failure to make a return of a writ within the required period is nonfeasance
Cesar Nickolai F. Soriano Jr.
70 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
execution showing the full satisfaction of the judgment, or upon the filing counsel must execute and acknowledge, or indorse an admission of the
of an admission to the satisfaction of the judgment executed and satisfaction as provided in the last preceding section, and after notice and
acknowledged in the same manner as a conveyance of real property by upon motion the court may order either the judgment obligee or his
the judgment obligee or by his counsel unless a revocation of his authority counsel to do so, or may order the entry of satisfaction to be made without
is filed, or upon the endorsement of such admission by the judgment such admission. (47a)
obligee or his counsel, on the face of the record of the judgment. (46a)

Section 45. Entry of satisfaction with or without admission. —


Whenever a judgment is satisfied in fact, or otherwise than upon an
execution on demand of the judgment obligor, the judgment obligee or his

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71 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
CRIMINAL PROCEDURE
I. JURISDICTION the avowed policy of the anti-graft law to repress certain acts of
public officers and private persons alike constituting graft or corrupt
A. SUPREME COURT practices act or which may lead thereto.

1. No original jurisdiction over criminal cases; It is true that by reason of public officer’s death, there is no longer
2. Appellate jurisdiction: any public officer with whom respondent can be charged for
a. By petition for review; violation of R.A. 3019. It does not mean, however, that the
b. By notice of appeal. allegation of conspiracy between them can no longer be
proved or that their alleged conspiracy is already
SECTION 5. The Supreme Court shall have the following powers: expunged. The only thing extinguished by such death is the public
xxx officer’s personal criminal liability. His death did not extinguish the
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as crime nor did it remove the basis of the charge of conspiracy
the law or the Rules of Court may provide, final judgments and orders of between him and private respondent.
lower courts in:
xxx The requirement before a private person may be indicted for
(d) All criminal cases in which the penalty imposed is reclusion perpetua violation of Section 3(g) of R.A. 3019, among others, is that such
or higher. private person must be alleged to have acted in conspiracy with a
xxx public officer. The law, however, does not require that such person
must, in all instances, be indicted together with the public officer.
When the RTC imposed the death penalty, the Court of Appeals shall If circumstances exist where the public officer may no longer be
automatically review the judgment under Rule 122, Sec. 3(d) and Sec. 10. charged in court, as in the present case where the public officer has
already died, the private person may be indicted alone. (People vs.
Whenever the Court of Appeals finds that the penalty of death should be Henry Go)
imposed, the court shall render judgment but refrain from making an entry of
judgment and forthwith certify the case and elevate its entire record to the Public Office: compensation is not an essential element of public
Supreme Court for review. (Sec. 13[a] of Rule 124) office. At most, it is merely incidental to the public office.

If the CA imposes reclusion perpetua or life imprisonment or a lesser penalty, Delegation of sovereign functions is essential in the public office. An
it shall render and enter judgment imposing such penalty and the same may investment in an individual of some portion of the sovereign functions of
be appealed to the SC by notice of appeal. (Sec. 13[c] of Rule 124) the government, to be exercised by him for the benefit of the public
makes one a public officer. (Serrana vs. Sandiganbayan)
B. COURT OF APPEALS
C. SANDIGANBAYAN 3. How the offense was committed? In relation to public office. It is,
however, not necessary that the office be an ingredient of the offense,
Original Jurisdiction: it is sufficient that the public office has facilitated the commission of the
How to determine when Sandiganbayan has jurisdiction: crime. (Serrana vs. Sandiganbayan)
1. What offense was committed?
Appellate Jurisdiction: All cases decided by the RTC in the exercise of its
a. RA 3019 (Anti-Graft and Corruption Practices Act) original or appellate jurisdiction over cases of public officers with SG less than
b. RA 1379 (The Law on Ill-Gotten Wealth) 27 charged with offenses/ crime aforementioned.
c. Chapter II Title VII Book 2 of the Revised Penal Code (Bribery)
d. E.O. Nos. 1, 2, 14, 14-A (PCGG cases) Forfeiture Cases: Executive Order No. (EO) 14, Series of 1986, albeit
e. Estafa (Serana case) defining only the jurisdiction over cases involving ill-gotten wealth of former
f. Falsification (Garcia case) President Marcos, his immediate family and business associates, authorizes
g. Other offenses or felonies whether simple or complexed with other under its Sec. 3 the filing of forfeiture suits under RA 1379 which will proceed
crimes (committed by public officers in relation to their public office, independently of any criminal proceedings. (Clarita Garcia vs. Sandiganbayan)
where such officer occupies a position with salary grade 27 or
higher) Primary Jurisdiction of the Ombudsman: The Ombudsman has primary
jurisdiction over all cases cognizable by the Sandiganbayan in the exercise of
2. Who committed the offense? its original jurisdiction.

a. Public officers in the executive, legislative, and judicial branches of Motion for Reconsideration finding probable cause will not be a bar
the government with SG 27 according to RA 6758 (The to the arraignment: If the filing of a motion for reconsideration of the
Compensation and Position Classification Act of 1989) as well as resolution finding probable cause cannot bar the filing of the corresponding
those enumerated under Sec. 4(a)(1) of PD 1606, as amended, information, then neither can it bar the arraignment of the accused, which in
including presidents, directors, trustees or managers of GOCCs or the normal course of criminal procedure logically follows the filing of the
State Universities (par. [g] thereof). information. (Ramiscal, Jr. vs. Sandiganbayan)

Even if the public officer is only an accomplice. D. REGIONAL TRIAL COURTS

b. Private individuals committing the offense or crime with public Original Jurisdiction:
officers. 1. All criminal cases which are NOT within the exclusive original jurisdiction
of any court. The offense must carry a penalty of more than 6 years
Private Persons in conspiracy with public officers with a (prision mayor).
salary grade of 27 are also under the jurisdiction of the 2. Cases involving public officers in relation to their public office with a
Sandiganbayan, even after the death of the said public salary grade LOWER than 27.
officer: private persons, when acting in conspiracy with public 3. Cases with a penalty of a fine of P10,000 or more.
officers, may be indicted and, if found guilty, held liable for the 4. Tax criminal cases where the amount involves less than P1M or where
pertinent offenses under Section 3 of R.A. 3019, in consonance with no amount is indicated (if P1M or more, the CTA will have original
Cesar Nickolai F. Soriano Jr.
72 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
jurisdiction). However, if the amount is P400,000 within Metro Manila; SEC. 21. Jurisdiction. — The Regional Trial Court shall have
or P300,000 outside Metro Manila, or less, the jurisdiction is with the jurisdiction over any violation of the provisions of this Act including any
MTC. violation committed by a Filipino national regardless of the place of
5. Libel cases even those committed by public officials: although RA 7691 commission. Jurisdiction shall lie if any of the elements was committed
was enacted to decongest the clogged dockets of the Regional Trail within the Philippines or committed with the use of any computer system
Courts by expanding the jurisdiction of first level courts, said law is of a wholly or partly situated in the country, or when by such commission any
general character. Even if it is a later enactment, it does not alter the damage is caused to a natural or juridical person who, at the time the
provision of Article 360 of the RPC, a law of a special nature. offense was committed, was in the Philippines.

Laws vesting jurisdiction exclusively with a particular court, are special There shall be designated special cybercrime courts manned by specially
in character, and should prevail over the Judiciary Act defining the trained judges to handle cybercrime cases.
jurisdiction of other courts (such as the Court of First Instance) which is
a general law. A later enactment like RA 7691 does not automatically PRINCIPLES ON JURISDICTION IN CRIMINAL CASES:
override an existing law, because it is a well-settled principle of
construction that, in case of conflict between a general law and a special 1. Jurisdiction over the subject matter is conferred by law
law, the latter must prevail regardless of the dates of their enactment. 2. Jurisdiction over the territory is conferred by law since venue is
Jurisdiction conferred by a special law on the RTC must therefore prevail jurisdictional
over that granted by a general law on the MTC. (People vs. Benipayo) 3. Venue is jurisdictional in criminal cases. That is why jurisdiction over the
territory does not apply in civil cases.
Appellate Jurisdiction: All criminal cases decided by the MTC.
As such, the Information must be filed in the territory where the crime
E. FAMILY COURTS was committed.

Original Exclusive Jurisdiction But if the offense is transitory or continuing, any place where any of the
1. Where a party is a minor at the time of the commission of the crime ingredients of the crime may be found.
2. Violence against women and children
3. Child abuse cases However, even if the place of instituting criminal offense, or the venue,
4. Drug cases cannot be the subject of a compromise or stipulation, the venue of the
trial can be moved subject to the approval of the Supreme Court, for the
F. METROPOLITAN/MUNICIPAL TRIAL COURT protection of the witnesses, the accused, offended party or for the
orderly administration of justice, e.g., the Maguindanao Massacre case.
1. All violations of city/ municipal ordinances
2. All offenses punishable with imprisonment of not more than 6 years If committed outside the Philippine territory but may be prosecuted
3. Violations of traffic rules and regulations herein, as those provided under Art. 2 of the Revised Penal Code, or
4. Violations of B.P 22 those committed in the Philippine Embassy, or acts of terrorism.
5. Damage to property with fine of not more than P10,000
4. Jurisdiction over the person of the accused is acquired through arrest or
G. COURTS OF MUSLIM MINDANAO (RA 6734, as amended by RA voluntary surrender
9054)
H. MILITARY COURTS In civil cases, there are 5 parties. The court acquires jurisdiction over the
person of the intervenor upon approval of the motion to intervene.
• Jurisdiction only over service-oriented cases.
• Neither are they courts nor quasi-judicial bodies 5. Jurisdiction of the court is determined by the law enforced at the time of
• They are only considered as quasi-courts the commission of the offense
• BUT for purposes of the prohibition on the practice of law on public
officers, military courts are considered as courts. 6. Jurisdiction over the res: In civil cases, the court does not have to acquire
jurisdiction over the res as long as it has jurisdiction over the person of
I. OFFICE OF THE OMBUDSMAN the defendant. But if it cannot acquire jurisdiction over the person of the
defendant, and acquires jurisdiction over the res, the case can continue.
PROSECUTOR VS. OMBUDSMAN
Jurisdiction over the res is not applicable in criminal cases. Rather, it is
PROSECUTOR OMBUDSMAN jurisdiction over the offense. This is determined by the penalty
Conducts preliminary investigation Likewise conducts preliminary imposable not penalty imposed, except in the Sandiganbayan, where the
investigation determinants is the office, salary grade, etc.
Prosecutes the case under Rule Prosecutes the case through the
110, Sec. 5, under his direction office of the special prosecutor 7. Jurisdiction over the issue: In civil cases, jurisdiction over the issue is
and control, but authority may be under the office of the determined by the allegations in the pleadings. In criminal cases, it is
had from the Chief Prosecution Ombudsman determined by the Information.
Office for a private prosecutor to 8. Principle of Adherence: is applicable also to criminal cases, such that,
prosecute in the absence of a once jurisdiction is acquired by the criminal court, it has to continue until
public prosecutor. final judgment.
Conducts inquest proceedings Conducts fact-finding investigation 9. Filing Fees: no filing fees are assessed for ACTUAL damages. But for
under Rule 112, Sec. 6 and if they find irregularities, files other types of damages, if they are alleged and the amount thereof is
the complaint. indicated, the filing fees are assessed thereon, otherwise, the filing fees
shall constitute a lien on the award of damages.

J. CYBERCRIME PREVENTION ACT EXCEPT: for BP Blg 22, where the amount in the check shall be
considered actual damages and filing fees need to be paid based
Cybercrime Prevention Act of 2012 (RA 10175) thereon.
.
II. RULE 110
Cesar Nickolai F. Soriano Jr.
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grandparents or guardian shall be exclusive of all other persons and shall
A. INSTITUTION OF CRIMINAL ACTIONS be exercised successively in the order herein provided, except as stated in
the preceding paragraph.
Section 1. Institution of criminal actions. — Criminal actions shall be
instituted as follows: No criminal action for defamation which consists in the imputation of the
offenses mentioned above shall be brought except at the instance of and
(a) For offenses where a preliminary investigation is required pursuant to upon complaint filed by the offended party. (5a)
section 1 of Rule 112, by filing the complaint with the proper officer for
the purpose of conducting the requisite preliminary investigation. The prosecution for violation of special laws shall be governed by the
provisions thereof. (n)
(b) For all other offenses, by filing the complaint or information directly
with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the Offenses which may not be instituted without a complaint:
complaint with the office of the prosecutor. In Manila and other chartered Concubinage, Adultery, Seduction, Acts of Lasciviousness and Abduction.
cities, the complaint shall be filed with the office of the prosecutor unless Rape, as a crime against persons, may now be instituted de officio.
otherwise provided in their charters.
Defamation concerning the above crimes must likewise be instituted with a
The institution of the criminal action shall interrupt the running period of complaint.
prescription of the offense charged unless otherwise provided in special
laws. (1a) Who may file the complaint aside from the offended party: parents,
grandparents or guardians ad litem, in that order. The presence of the
How is a criminal action instituted? parents, will not give right to the grandparents to file a complaint.
1. Complaint filed with the fiscal: in Metro Manila and other chartered cities.
Information filed with the court by the fiscal after a preliminary Who files the Information: the offended party, which is the State. The
investigation. private complainant is not a party to the case, but normally a witness. As
2. Complaint directly filed with the MTC: for cases punishable by 6 years or such, the court may exclude the public, including the private complainant.
less. However, if the offense is punishable by imprisonment of at least 4 Unlike in civil cases where the plaintiff and defendants are both the parties to
years, 2 months and 1 day (prision correccional maximum) or more, the case.
there may still be a preliminary investigation under RA No. 7691.
Otherwise, the MTC may take cognizance of the case without a Complaint defined. — A complaint is a sworn written statement charging a
preliminary investigation. person with an offense, subscribed by the offended party, any peace officer,
or other public officer charged with the enforcement of the law violated.
Effect of institution: interrupt the running of the period of prescription of (Section 3)
the offense charged unless otherwise provided in special laws.
Information defined. — An information is an accusation in writing charging
Once a complaint is filed with the justice of the peace for preliminary a person with an offense, subscribed by the prosecutor and filed with the
investigation, the prescription of the offense is halted. (Panaguiton vs. DOJ) court. (Section 4)

Special laws: the period of prescription is interrupted upon filing with the The main difference in a complaint and in an information is, who is the
fiscal’s office, similar to a violation of the RPC. subscribing party, i.e., the private complainant in a complaint (offended
party), and the prosecutor in an information.
Ordinance: from filing of the information in COURT.
B. SUFFICIENCY OF COMPLAINT OR INFORMATION
Section 5. Who must prosecute criminal actions. — All criminal actions
commenced by a complaint or information shall be prosecuted under the Section 6. Sufficiency of complaint or information. — A complaint
direction and control of the prosecutor. However, in Municipal Trial Courts or information is sufficient if it states the name of the accused; the
or Municipal Circuit Trial Courts when the prosecutor assigned thereto or designation of the offense given by the statute; the acts or omissions
to the case is not available, the offended party, any peace officer, or public complained of as constituting the offense; the name of the offended party;
officer charged with the enforcement of the law violated may prosecute the approximate date of the commission of the offense; and the place
the case. This authority cease upon actual intervention of the prosecutor where the offense was committed.
or upon elevation of the case to the Regional Trial Court.
When an offense is committed by more than one person, all of them shall
The crimes of adultery and concubinage shall not be prosecuted except be included in the complaint or information. (6a)
upon a complaint filed by the offended spouse. The offended party cannot
institute criminal prosecution without including the guilty parties, if both What must be included in the Complaint or Information:
alive, nor, in any case, if the offended party has consented to the offense 1. Name of accused :
or pardoned the offenders.
Section 7. Name of the accused. — The complaint or information
The offenses of seduction, abduction and acts of lasciviousness shall not must state the name and surname of the accused or any appellation or
be prosecuted except upon a complaint filed by the offended party or her nickname by which he has been or is known. If his name cannot be
parents, grandparents or guardian, nor, in any case, if the offender has ascertained, he must be described under a fictitious name with a
been expressly pardoned by any of them. If the offended party dies or statement that his true name is unknown.
becomes incapacitated before she can file the complaint, and she has no
known parents, grandparents or guardian, the State shall initiate the If the true name of the accused is thereafter disclosed by him or appears
criminal action in her behalf. in some other manner to the court, such true name shall be inserted in
the complaint or information and record.
The offended party, even if a minor, has the right to initiate the prosecution
of the offenses of seduction, abduction and acts of lasciviousness 2. Name of offended party
independently of her parents, grandparents, or guardian, unless she is
incompetent or incapable of doing so. Where the offended party, who is a Section 12. Name of the offended party. — The complaint or
minor, fails to file the complaint, her parents, grandparents, or guardian information must state the name and surname of the person against
may file the same. The right to file the action granted to parents, whom or against whose property the offense was committed, or any
Cesar Nickolai F. Soriano Jr.
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REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
appellation or nickname by which such person has been or is known. If
there is no better way of identifying him, he must be described under a Joinder of causes of action not allowed:
fictitious name.
Section 13. Duplicity of the offense. — A complaint or information
(a) In offenses against property, if the name of the offended party is must charge but one offense, except when the law prescribes a single
unknown, the property must be described with such particularity as to punishment for various offenses.
properly identify the offense charged.
There can be no joinder of causes of action in criminal proceedings unlike in
(b) If the true name of the person against whom or against whose civil cases. Even in BP 22, each check is equivalent to one information.
properly the offense was committed is thereafter disclosed or Exception: in cases of complex crimes where one act or omission violates 2
ascertained, the court must cause the true name to be inserted in the laws.
complaint or information and the record.
C. AMENDMENT vs. SUBSTITUTION
(c) If the offended party is a juridical person, it is sufficient to state its
name, or any name or designation by which it is known or by which it Section 14. Amendment or substitution. — A complaint or information
may be identified, without need of averring that it is a juridical person may be amended, in form or in substance, without leave of court, at any
or that it is organized in accordance with law. time before the accused enters his plea. After the plea and during the trial,
a formal amendment may only be made with leave of court and when it
3. Name of offense can be done without causing prejudice to the rights of the accused.

Section 8. Designation of the offense. — The complaint or However, any amendment before plea, which downgrades the nature of
information shall state the designation of the offense given by the the offense charged in or excludes any accused from the complaint or
statute, aver the acts or omissions constituting the offense, and specify information, can be made only upon motion by the prosecutor, with notice
its qualifying and aggravating circumstances. If there is no designation to the offended party and with leave of court. The court shall state its
of the offense, reference shall be made to the section or subsection of reasons in resolving the motion and copies of its order shall be furnished
the statute punishing it. all parties, especially the offended party. (n)

How is the offense designated? Under the Rules, in layman’s language so that If it appears at any time before judgment that a mistake has been made
it is understandable by an ordinary individual. The essential ingredients of the in charging the proper offense, the court shall dismiss the original
offense must always be stated, absence of at least one, may be reason for complaint or information upon the filing of a new one charging the proper
dismissal on the ground that the facts charged do not constitute an offense offense in accordance with section 19, Rule 119, provided the accused
(Rule 117). shall not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (14a)
4. Cause of accusation
Prior to making a plea: amendment may be had even without leave of
Section 9. Cause of the accusation. — The acts or omissions court, on matters both of substance and form, BEFORE the accused enters
complained of as constituting the offense and the qualifying and his plea.
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in However, if the amendment downgrades the nature of the offense charged
terms sufficient to enable a person of common understanding to know or excludes any accused from the complaint or information, the amendment
what offense is being charged as well as its qualifying and aggravating can be made before plea only upon MOTION of the prosecutor and NOTICE
circumstances and for the court to pronounce judgment. to the offended party WITH leave of court.

5. Place of commission Plea already made: only matters of form may be amended for as long as it
would not prejudice the rights of the accused.
Section 10. Place of commission of the offense. — The complaint
or information is sufficient if it can be understood from its allegations Amendment without motion: is allowed by order of the court under Rule
that the offense was committed or some of the essential ingredients 117, Sec. 3, to wit:
occurred at some place within the jurisdiction of the court, unless the
particular place where it was committed constitutes an essential Section 4. Amendment of the complaint or information. — If the
element of the offense or is necessary for its identification. motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order
There are crimes where the place is an essential ingredient. Example: Theft that an amendment be made. (4a)
in the national library and highway robbery.
If it is based on the ground that the facts charged do not
6. Date of commission constitute an offense, the prosecution shall be given by the court
an opportunity to correct the defect by amendment. The motion shall
Section 11. Date of commission of the offense. — It is not be granted if the prosecution fails to make the amendment, or the
necessary to state in the complaint or information the precise date the complaint or information still suffers from the same defect despite the
offense was committed except when it is a material ingredient of the amendment.
offense. The offense may be alleged to have been committed on a date
as near as possible to the actual date of its commission. Change of modality of the execution of the offense is not
substitution but merely an amendment. Hence, new no preliminary
Regarding the place and time, they do not have to be exact. If it is committed investigation is required: Only the mode of commission was
in Manila, you do not have to specify that it was committed in Tondo or Malate. modified. While jurisprudence, the most recent being Talaga, Jr. v.
The information usually just says “within the jurisdiction of this Honorable Sandiganbayan, provides that there are two (2) acts or modes of committing
Court.” the offense, thus: a) by causing any undue injury to any party, including the
government; or b) by giving any private party any unwarranted benefit,
Example of a crime where time is an element: under the aggravating advantage or preference, it does not mean that each act or mode constitutes
circumstances, nighttime may increase the penalty. a distinct offense. An accused may be charged under either mode or under
both should both modes concur.
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75 Arellano University School of Law 2011-0303
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(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
While it is a rule that in substitution of information another preliminary deemed to include the corresponding civil action. No reservation to file
investigation is entailed and that the accused has to plead anew to the new such civil action separately shall be allowed.
information is not applicable to the present case because, as already stated,
there is no substitution of information there being no change in the nature of Upon filing of the aforesaid joint criminal and civil actions, the offended
the offense charged. (Saludaga vs. Sandiganbayan) party shall pay in full the filing fees based on the amount of the check
involved, which shall be considered as the actual damages claimed. Where
D. PLACE WHERE ACTION IS TO BE INSTITUTED the complaint or information also seeks to recover liquidated, moral,
nominal, temperate or exemplary damages, the offended party shall pay
Section 15. Place where action is to be instituted. — additional filing fees based on the amounts alleged therein. If the amounts
(a) Subject to existing laws, the criminal action shall be instituted and tried are not so alleged but any of these damages are subsequently awarded by
in the court of the municipality or territory where the offense was the court, the filing fees based on the amount awarded shall constitute a
committed or where any of its essential ingredients occurred. first lien on the judgment.

(b) Where an offense is committed in a train, aircraft, or other public or Where the civil action has been filed separately and trial thereof has not
private vehicle while in the course of its trip, the criminal action shall be yet commenced, it may be consolidated with the criminal action upon
instituted and tried in the court of any municipality or territory where such application with the court trying the latter case. If the application is
train, aircraft or other vehicle passed during such its trip, including the granted, the trial of both actions shall proceed in accordance with section
place of its departure and arrival. 2 of this Rule governing consolidation of the civil and criminal actions. (cir.
57-97)
(c) Where an offense is committed on board a vessel in the course of its
voyage, the criminal action shall be instituted and tried in the court of the Civil Aspect: arising from the offense charged shall be deemed instituted
first port of entry or of any municipality or territory where the vessel passed with the criminal action unless:
during such voyage, subject to the generally accepted principles of 1. the offended party waives the civil action;
international law. 2. reserves the right to institute it separately; or
3. institutes the civil action prior to the criminal action.
(d) Crimes committed outside the Philippines but punishable under Article
2 of the Revised Penal Code shall be cognizable by the court where the Reservation; When Made: prior to the presentation of the prosecution of
criminal action is first filed. (15a) evidence.

E. INTERVENTION OF THE OFFENDED PARTY Filing Fees: except as otherwise provided in these Rules, no filing fees shall
be required for actual damages.
Section 16. Intervention of the offended party in criminal
action. — Where the civil action for recovery of civil liability is instituted For other damages: moral, nominal, temperate, or exemplary damages:
in the criminal action pursuant to Rule 111, the offended party may 1. If amount thereof is specified in the complaint or information, the filing
intervene by counsel in the prosecution of the offense. (16a) fees shall be paid by the offended party in the court;
2. If not specified, the filing fees thereof shall constitute a first lien on the
III. RULE 111: PROSECUTION OF CIVIL ACTION judgment awarding such damages.

A. CIVIL LIABILITY ARISING FROM THE OFFENSE IS DEEMED Counterclaim, cross-claim or third-party complaint: the accused in the
INSTITUTED criminal case cannot file any counterclaim, cross-claim or third-party
complaint, but any cause of action which could have been the subject thereof
Section 1. Institution of criminal and civil actions. — (a) When a may be litigated in a separate civil action
criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the Violation of BP Blg. 22: Unlike other cases where the civil aspect may be
criminal action unless the offended party waives the civil action, reserves reserved, in the criminal action for violation of BP Blg. 22, the civil aspect shall
the right to institute it separately or institutes the civil action prior to the be deemed to include the corresponding civil action. No reservation to file
criminal action. such civil action separately shall be allowed.

The reservation of the right to institute separately the civil action shall be Note that what is prohibited is only reservation, waiver and prior institution of
made before the prosecution starts presenting its evidence and under the civil action is not.
circumstances affording the offended party a reasonable opportunity to
make such reservation. If civil action already filed: it may either be suspended or consolidated with
the criminal action upon application with the court trying the criminal case.
When the offended party seeks to enforce civil liability against the accused
by way of moral, nominal, temperate, or exemplary damages without Criminal tax cases and Sadiganbayan: civil aspect is likewise included
specifying the amount thereof in the complaint or information, the filing and simultaneously instituted and there is no right to reserve the civil aspect.
fees thereof shall constitute a first lien on the judgment awarding such
damages. Two kinds of acquittal and their effect on the civil liability arising
from delict:
Where the amount of damages, other than actual, is specified in the 1. No more civil liability - Acquittal on the ground that the ACCUSED
complaint or information, the corresponding filing fees shall be paid by the IS NOT THE AUTHOR OF THE ACT OR OMISSION COMPLAINED
offended party upon the filing thereof in court. OF. This instance closes the door to civil liability, for a person who has
been found to be not the perpetrator of any act or omission cannot and
Except as otherwise provided in these Rules, no filing fees shall be required can never be held liable for such act or omission. There being no delict,
for actual damages. civil liability ex delicto is out of the question, and the civil action, if any,
which may be instituted must be based on grounds other than the delict
No counterclaim, cross-claim or third-party complaint may be filed by the complained of. This is the situation contemplated in Rule 111 of the Rules
accused in the criminal case, but any cause of action which could have of Court.
been the subject thereof may be litigated in a separate civil action. (1a) 2. Not exempt from civil liability - an acquittal based on
REASONABLE DOUBT on the guilt of the accused. In this case,
Cesar Nickolai F. Soriano Jr.
76 Arellano University School of Law 2011-0303
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even if the guilt of the accused has not been satisfactorily established, Criminal action filed first: no separate civil action can be commenced.
he is not exempt from civil liability which may be proved by
preponderance of evidence only. This is the situation contemplated in Civil action filed first: it shall be suspended at whatever stage it may be
Article 29 of the Civil Code, where the civil action for damages is "for the found before judgment on the merits until final judgment is rendered on the
same act or omission. (Castillo vs. Salvador) criminal action.

Civil liability is likewise extinguished if the acquittal was NOT due to Consolidation: before judgment on the merits, the offended party may, by
reasonable doubt: We have to clarify that the acquittal of Dr. Solidum would motion, have the civil action (already instituted) consolidated with the criminal
not immediately exempt him from civil liability. But we cannot now find and action. In the court trying the latter.
declare him civilly liable because the circumstances that have been
established here do not present the factual and legal bases for validly doing Evidence in civil case: already adduced, once consolidated, shall be deemed
so. His acquittal did not derive only from reasonable doubt. There was really reproduced in the criminal action, without prejudice to the rights of the
no firm and competent showing how the injury to Gerard had been caused. prosecution to cross-examine the witnesses presented by the offended party
(Solidum vs. People) or the parties’ right to present additional evidence.

Civil Liability deemed instituted includes only those arising from the The cases shall be tried and decided jointly.
offense charged: In criminal prosecutions, the civil action for the recovery
of civil liability that is deemed instituted with the criminal action refers only to Applicability of Prohibition and Suspension is only to civil actions
that arising from the offense charged. (Solidum vs. People) arising from delict: This rule applies only to the separate civil action filed
to recover liability ex-delicto. The rule did not apply to independent civil
COVERAGE: only civil actions arising from delict: A single act or actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could
omission that causes damage to an offended party may give rise to two proceed independently regardless of the filing of the criminal action.
separate civil liabilities on the part of the offender:
(1) civil liability ex delicto, that is, civil liability arising from the criminal offense Section 2 of the present Rule 111 also prohibits the filing, after
under Article 100 of the Revised Penal Code, and commencement of the criminal action, of a separate civil action to recover
(2) independent civil liability, that is, civil liability that may be pursued damages ex-delicto. (Casupanan vs. Laroya)
independently of the criminal proceedings. (Lim vs. Kou Co Ping)
Prescription of the civil action: The period of running of the prescriptive
Under Section 1 of the present Rule 111, what is "deemed instituted" with the period of the civil action which cannot be instituted shall be tolled;
criminal action is only the action to recover civil liability arising from the crime
or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of Extinction:
the Civil Code are no longer "deemed instituted," and may be filed separately 1. The extinction of the penal action does not carry with it the extinction of
and prosecuted independently even without any reservation in the criminal the civil action.
action. The failure to make a reservation in the criminal action is not a waiver 2. However, if there is a finding in a final judgment in the criminal action
of the right to file a separate and independent civil action based on these that the act or omission from which the civil liability based on delict may
articles of the Civil Code. The prescriptive period on the civil actions based on arise did not exist.
these articles of the Civil Code continues to run even with the filing of the
criminal action. Verily, the civil actions based on these articles of the Civil Code Bar Rule under the Rules on the Writ of Amparo and Writ of Habeas
are separate, distinct and independent of the civil action "deemed instituted" Data:
in the criminal action. (Casupanan vs. Laroya)
Effect of Filing of a Criminal Action. – When a criminal action has
B. SUSPENSION OF CIVIL ACTION been commenced, no separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion in the criminal case.
Section 2. When separate civil action is suspended. — After the
criminal action has been commenced, the separate civil action arising The procedure under this Rule shall govern the disposition of the reliefs
therefrom cannot be instituted until final judgment has been entered in available under the writ of amparo.
the criminal action.
Consolidation. – When a criminal action is filed subsequent to the
If the criminal action is filed after the said civil action has already been filing of a petition for the writ, the latter shall be consolidated with the
instituted, the latter shall be suspended in whatever stage it may be found criminal action.
before judgment on the merits. The suspension shall last until final
judgment is rendered in the criminal action. Nevertheless, before judgment When a criminal action and a separate civil action are filed subsequent
on the merits is rendered in the civil action, the same may, upon motion to a petition for a writ of amparo, the latter shall be consolidated with
of the offended party, be consolidated with the criminal action in the court the criminal action.
trying the criminal action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed automatically reproduced in After consolidation, the procedure under this Rule shall continue to
the criminal action without prejudice to the right of the prosecution to apply to the disposition of the reliefs in the petition.
cross-examine the witnesses presented by the offended party in the
criminal case and of the parties to present additional evidence. The The writ of amparo is an extraordinary and independent remedy that
consolidated criminal and civil actions shall be tried and decided jointly. provides rapid judicial relief, as it partakes of a summary proceeding that
requires only substantial evidence to make the appropriate interim and
During the pendency of the criminal action, the running of the period of permanent reliefs available to the petitioner. It is not an action to determine
prescription of the civil action which cannot be instituted separately or criminal guilt requiring proof beyond reasonable doubt, or liability for damages
whose proceeding has been suspended shall be tolled. (n) requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings. Rather,
The extinction of the penal action does not carry with it extinction of the it serves both preventive and curative roles in addressing the problem of
civil action. However, the civil action based on delict shall be deemed extrajudicial killings and enforced disappearances. It is preventive in that it
extinguished if there is a finding in a final judgment in the criminal action breaks the expectation of impunity in the commission of these offenses, and
that the act or omission from which the civil liability may arise did not exist. it is curative in that it facilitates the subsequent punishment of perpetrators
(2a) by inevitably leading to subsequent investigation and action.

Cesar Nickolai F. Soriano Jr.


77 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Meanwhile, the writ of habeas data provides a judicial remedy to protect a
person’s right to control information regarding oneself, particularly in In any of the cases referred to in this article, whether or not the
instances where such information is being collected through unlawful means defendant's act or omission constitutes a criminal offense, the aggrieved
in order to achieve unlawful ends. As an independent and summary remedy party has a right to commence an entirely separate and distinct civil action
to protect the right to privacy – especially the right to informational privacy – for damages, and for other relief. Such civil action shall proceed
the proceedings for the issuance of the writ of habeas data does not entail independently of any criminal prosecution (if the latter be instituted), and
any finding of criminal, civil or administrative culpability. If the allegations in may be proved by a preponderance of evidence.
the petition are proven through substantial evidence, then the Court may (a)
grant access to the database or information; (b) enjoin the act complained of; The indemnity shall include moral damages. Exemplary damages may also
or (c) in case the database or information contains erroneous data or be adjudicated.
information, order its deletion, destruction or rectification.
The responsibility herein set forth is not demandable from a judge unless
C. INDEPENDENT CIVIL ACTION his act or omission constitutes a violation of the Penal Code or other penal
statute.
Section 3. When civil action may proceeded independently. — In
the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of Article 33. In cases of defamation, fraud, and physical injuries a civil
the Philippines, the independent civil action may be brought by the action for damages, entirely separate and distinct from the criminal action,
offended party. It shall proceed independently of the criminal action and may be brought by the injured party. Such civil action shall proceed
shall require only a preponderance of evidence. In no case, however, may independently of the criminal prosecution, and shall require only a
the offended party recover damages twice for the same act or omission preponderance of evidence.
charged in the criminal action. (3a)
Article 34. When a member of a city or municipal police force refuses or
General rule: Once you file a criminal case, the civil aspect is deemed fails to render aid or protection to any person in case of danger to life or
instituted therein. property, such peace officer shall be primarily liable for damages, and the
city or municipality shall be subsidiarily responsible therefor. The civil
Exception: Violations of Articles 32, 33, 34 and 2176 of the Civil Code – action herein recognized shall be independent of any criminal proceedings,
These are 2 cases that can run parallel lines. You can file both because these and a preponderance of evidence shall suffice to support such action.
particular provisions violate both the Civil Code and the RPC.
Article 2176. Whoever by act or omission causes damage to another,
Example: A is the driver of B. There was a collision where someone died, due there being fault or negligence, is obliged to pay for the damage done.
to the fault of A (reckless imprudence resulting to homicide). A case may be Such fault or negligence, if there is no pre-existing contractual relation
filed against A under the RPC and against B under the Civil Code. They can between the parties, is called a quasi-delict and is governed by the
move on parallel lines. You can file both cases. provisions of this Chapter. (1902a)

Civil Code Provisions: Limitation on double recovery: The criminal case that moved independent
of civil case can no longer award civil damages, as provided under Art. 2177:
Article 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes Art. 2177. Responsibility for fault or negligence under the preceding
or impairs any of the following rights and liberties of another person shall article is entirely separate and distinct from the civil liability arising from
be liable to the latter for damages: negligence under the Penal Code. But the plaintiff cannot recover damages
(1) Freedom of religion; twice for the same act or omission of the defendant.
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication; Independent Civil Actions not arising from delict: The independent civil
(4) Freedom from arbitrary or illegal detention; liability may be based on "an obligation not arising from the act or omission
(5) Freedom of suffrage; complained of as a felony," as provided in Article 31 of the Civil Code (such
(6) The right against deprivation of property without due process of law; as for breach of contract or for tort). It may also be based on an act or
(7) The right to a just compensation when private property is taken for omission that may constitute felony but, nevertheless, treated independently
public use; from the criminal action by specific provision of Article 33 of the Civil Code
(8) The right to the equal protection of the laws; ("in cases of defamation, fraud and physical injuries").
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures; The civil liability arising from the offense or ex delicto is based on the acts or
(10) The liberty of abode and of changing the same; omissions that constitute the criminal offense; hence, its trial is inherently
(11) The privacy of communication and correspondence; intertwined with the criminal action. For this reason, the civil liability ex delicto
(12) The right to become a member of associations or societies for is impliedly instituted with the criminal offense.
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the If the action for the civil liability ex delicto is instituted prior to or subsequent
Government for redress of grievances; to the filing of the criminal action, its proceedings are suspended until the
(14) The right to be a free from involuntary servitude in any form; final outcome of the criminal action. The civil liability based on delict is
(15) The right of the accused against excessive bail; extinguished when the court hearing the criminal action declares that "the act
(16) The right of the accused to be heard by himself and counsel, to be or omission from which the civil liability may arise did not exist." (Lim vs. Kou
informed of the nature and cause of the accusation against him, to have a Co Ping)
speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in his behalf; Independent Civil Liability may be pursued separately and may
(17) Freedom from being compelled to be a witness against one's self, or proceed independently from the criminal action: Because of the distinct
from being forced to confess guilt, or from being induced by a promise of and independent nature of the two kinds of civil liabilities, jurisprudence holds
immunity or reward to make such confession, except when the person that the offended party may pursue the two types of civil liabilities
confessing becomes a State witness; simultaneously or cumulatively, without offending the rules on forum
(18) Freedom from excessive fines, or cruel and unusual punishment, shopping, litis pendentia, or res judicata.
unless the same is imposed or inflicted in accordance with a statute which
has not been judicially declared unconstitutional; and This is because one of the elements of litis pendentia or res judicata is that
(19) Freedom of access to the courts. they are based on the same cause of action. The criminal action is based on
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culpa criminal, while the independent civil action maybe based on culpa the accused after proper substitution or against said estate, as the case
contractual or culpa acquillana. (Lim vs. Kou Co Ping) may be. The heirs of the accused may be substituted for the deceased
without requiring the appointment of an executor or administrator and the
The offended party can file two separate suits for the same act or omission. court may appoint a guardian ad litem for the minor heirs.
The first a criminal case where the civil action to recover civil liability ex-delicto
is deemed instituted, and the other a civil case for quasi-delict - without The court shall forthwith order said legal representative or representatives
violating the rule on non-forum shopping. The two cases can proceed to appear and be substituted within a period of thirty (30) days from notice.
simultaneously and independently of each other. (Casupanan vs. Laroya) A final judgment entered in favor of the offended party shall be enforced
in the manner especially provided in these rules for prosecuting claims
No forum shopping: The essence of forum shopping is the filing of multiple against the estate of the deceased.
suits involving the same parties for the same cause of action, either
simultaneously or successively, to secure a favorable judgment. Although the If the accused dies before arraignment, the case shall be dismissed without
cases filed by [the offended party] arose from the same act or omission of prejudice to any civil action the offended party may file against the estate
[the offender], they are, however, based on different causes of action. The of the deceased. (n)
criminal cases for estafa are based on culpa criminal while the civil action for
collection is anchored on culpa contractual. Moreover, there can be no forum- Effect of death of the accused after arraignment during the
shopping in the instant case because the law expressly allows the filing of a pendency of the criminal action:
separate civil action which can proceed independently of the criminal action. 1. Civil liability arising from delict – extinguished;
(Lim vs. Kou Co Ping) 2. Independent civil actions arising from contract or quasi-delict – may be
continued against the estate or legal representative of the accused after
Limitation: on instituting a separate civil action, is the rule on double proper substitution or against said estate, as the case may be.
recovery under Art. 2177 of the Civil Code.
The criminal action is extinguished inasmuch as there is no longer a defendant
Accused (not the offended party) can file a civil action, simultaneously to stand as the accused, the civil action instituted therein for recovery of civil
and independently, a separate civil action for quasi-delict against liability ex delicto is ipso facto extinguished, grounded as it is on the criminal
the private complainant in a civil case: no forum shopping: Laroya case. Corollarily, the claim for civil liability survives notwithstanding the death
filed the criminal case for reckless imprudence resulting in damage to property of the accused, if the same may also be predicted on a source of obligation
based on the Revised Penal Code while Casupanan and Capitulo filed the civil other than delict. (People vs. Romero)
action for damages based on Article 2176 of the Civil Code. Although these
two actions arose from the same act or omission, they have different causes Before arraignment: case shall be dismissed without prejudice to any civil
of action. The criminal case is based on culpa criminal punishable under the action the offended party may file against the estate of the deceased.
Revised Penal Code while the civil case is based on culpa aquiliana actionable
under Articles 2176 and 2177 of the Civil Code. Substitution of heirs of the accused:
1. May be had even without requiring the appointment of an executor or
Any aggrieved person can invoke these articles provided he proves, by administrator;
preponderance of evidence, that he has suffered damage because of the fault 2. The court may appoint a guardian ad litem for the minor heirs;
or negligence of another. Either the private complainant or the accused can 3. The court shall order such legal representative(s) to appear and be
file a separate civil action under these articles. There is nothing in the law or substituted within thirty days from notice.
rules that state only the private complainant in a criminal case may invoke
these articles. E. PREJUDICIAL QUESTION

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Section 6. Suspension by reason of prejudicial question. — A
Criminal Procedure ("2000 Rules" for brevity) expressly requires the petition for suspension of the criminal action based upon the pendency of
accused to litigate his counterclaim in a separate civil action, to wit: a prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When the
"SECTION 1. Institution of criminal and civil actions. – (a) x x x. criminal action has been filed in court for trial, the petition to suspend shall
be filed in the same criminal action at any time before the prosecution
No counterclaim, cross-claim or third-party complaint may be filed by the rests. (6a)
accused in the criminal case, but any cause of action which could have
been the subject thereof may be litigated in a separate civil action." Where to file petition for suspension:
(Emphasis supplied) 1. if the criminal action has not been filed in court for trial - Prosecutor or
the court conducting the preliminary investigation;
Since the present Rules require the accused in a criminal action to file his 2. If already filed – the court trying the criminal action at any time BEFORE
counterclaim in a separate civil action, there can be no forum-shopping if the the prosecution rests.
accused files such separate civil action.
Section 7. Elements of prejudicial question. — The elements of a
The accused, who is presumed innocent, has a right to invoke Article 2177 of prejudicial question are: (a) the previously instituted civil action involves
the Civil Code, in the same way that the offended party can avail of this an issue similar or intimately related to the issue raised in the subsequent
remedy which is independent of the criminal action. To disallow the accused criminal action, and (b) the resolution of such issue determines whether
from filing a separate civil action for quasi-delict, while refusing to recognize or not the criminal action may proceed. (5a)
his counterclaim in the criminal case, is to deny him due process of law, access
to the courts, and equal protection of the law. (Casupanan vs. Laroya) Definition of Prejudicial Question: A prejudicial question is defined as
that which arises in a case the resolution of which is a logical antecedent of
D. EFFECT OF DEATH ON THE CIVIL ACTION the issue involved therein, and the cognizance of which pertains to another
tribunal.
Section 4. Effect of death on civil actions. — The death of the accused
after arraignment and during the pendency of the criminal action shall The prejudicial question must be determinative of the case before the court
extinguish the civil liability arising from the delict. However, the but the jurisdiction to try and resolve the question must be lodged in another
independent civil action instituted under section 3 of this Rule or which court or tribunal. It is a question based on a fact distinct and separate from
thereafter is instituted to enforce liability arising from other sources of the crime but so intimately connected with it that it determines the guilt or
obligation may be continued against the estate or legal representative of innocence of the accused.
Cesar Nickolai F. Soriano Jr.
79 Arellano University School of Law 2011-0303
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For the purpose of filing an The purpose is for the
For a prejudicial question in a civil case to suspend criminal action, it must information issuance or non-issuance of
appear not only that said case involves facts intimately related to those upon the warrant of arrest
which the criminal prosecution would be based but also that in the resolution A process to determine Conducted by the judge, to
of the issue or issues raised in the civil case, the guilt or innocence of the whether a crime is committed determine the probability also
accused would necessarily be determined. and the accused or of the accused having
respondent is probably guilty committed a crime and
Requisites: thereof and this is conducted therefore a warrant of arrest
1. the civil case involves facts intimately related to those upon which by the prosecutor is issued
the criminal prosecution would be based;
2. in the resolution of the issue or issues raised in the civil action, the guilt Purpose of Preliminary Investigation: to determine whether
or innocence of the accused would necessarily be determined; and 1. a crime has been committed; and
3. jurisdiction to try said question must be lodged in another tribunal. 2. there is a probable cause to believe that the accused is guilty thereof.
(Magestrado vs. People) (Burgundy Realty Corporation vs. Josefa Reyes)

Civil action must have been filed FIRST: Section 7(a) of Rule 111 Probable Cause: has been defined as such facts as are sufficient to
provides that one of the elements of a prejudicial question is that the engender a well-founded belief that a crime has been committed and that
“previously” instituted civil action involves an issue similar or intimately related respondent is probably guilty thereof.
to the issue raised in the subsequent criminal action.
The term does not mean "actual and positive cause" nor does it import
The rule is clear that the civil action must be instituted first before the absolute certainty. It is merely based on opinion and reasonable belief.
filing of the criminal action. (Pimentel vs. Pimentel) Probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act
Case for cancellation of mortgage and for collection of some of or omission complained of constitutes the offense charged. (Fenequito vs.
money NOT prejudicial to the criminal action for perjury in an Vergara)
affidavit of loss of owner’s duplicate certificate of title; the civil cases
and the criminal case can proceed independently of each other. Regardless of Evidence Necessary: A finding of probable cause needs only to rest on
the outcome of the two civil cases, it will not establish the innocence or guilt evidence showing that, more likely than not, a crime has been committed
of the petitioner in the criminal case for perjury. The purchase by petitioner by the suspects. It need not be based on clear and convincing evidence of
of the land or his execution of a real estate mortgage will have no bearing guilt, not on evidence establishing guilt beyond reasonable doubt, and
whatsoever on whether petitioner knowingly and fraudulently executed a false definitely not on evidence establishing absolute certainty of guilt. In
affidavit of loss of TCT No. N-173163. (Magestrado vs. People) determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has
Action for annulment of marriage NOT prejudicial to a criminal case no technical knowledge. He relies on common sense. (Fenequito vs. Vergara)
for parricide: The relationship between the offender and the victim
distinguishes the crime of parricide from murder or homicide. However, the It does not call for the application of rules and standards of proof that a
issue in the annulment of marriage is not similar or intimately related to the judgment of conviction requires after trial on the merits. The complainant
issue in the criminal case for parricide. Further, the relationship between the need not present at this stage proof beyond reasonable doubt. A preliminary
offender and the victim is not determinative of the guilt or innocence of the investigation does not require a full and exhaustive presentation of the parties'
accused. evidence. Precisely, there is a trial to allow the reception of evidence for both
parties to substantiate their respective claims. (Burgundy Realty Corporation
The issue in the civil case for annulment of marriage under Article 36 of the vs. Josefa Reyes)
Family Code is whether petitioner is psychologically incapacitated to comply
with the essential marital obligations. The issue in parricide is whether the B. WHO MAY CONDUCT
accused killed the victim. (Pimentel vs. Pimentel)
Section 2. Officers authorized to conduct preliminary
IV. RULE 112: PRELIMINARY INVESTIGATION investigations. — The following may conduct preliminary investigations:

A. DEFINITION/DESCRIPTION (a) Provincial or City Prosecutors and their assistants;


(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
Section 1. Preliminary investigation defined; when required. — (c) National and Regional State Prosecutors; and
Preliminary investigation is an inquiry or proceeding to determine whether (d) Other officers as may be authorized by law.
there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and Their authority to conduct preliminary investigations shall include all crimes
should be held for trial. cognizable by the proper court in their respective territorial jurisdictions.
(2a)
Except as provided in section 7 of this Rule, a preliminary investigation is
required to be conducted before the filing of a complaint or information for Preliminary Investigation primarily an executive function: The
an offense where the penalty prescribed by law is at least four (4) years, conduct of a preliminary investigation is primarily an executive function.
two (2) months and one (1) day without regard to the fine. (1a) (Abanado vs. Bayona) It does not contemplate a judicial function. It is
essentially an inquisitorial proceeding, and often, the only means of
When Applicable: if the offense carries a penalty of AT LEAST 4 years, 2 ascertaining who may be reasonably charged with a crime. Prosecutors
months and 1 day. control and direct the prosecution of criminal offenses, including the conduct
of preliminary investigation, subject to review by the Secretary of Justice. The
DISTINGUISHED FROM PRELIMINARY EXAMINATION: duty of the Court in appropriate cases is merely to determine whether the
executive determination was done without or in excess of jurisdiction or with
Preliminary investigation Preliminary examination grave abuse of discretion. Resolutions of the Secretary of Justice are not
Quantum of evidence: probable cause subject to review unless made with grave abuse. (Heirs of Tria vs. Obias)
Executive function Judicial function
Other officers as may be authorized by law, include:
1. The Ombudsman;
Cesar Nickolai F. Soriano Jr.
80 Arellano University School of Law 2011-0303
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2. The COMELEC; Note: if the DOJ or the OP finds that there is no probable cause, they
3. Special Panel of Prosecutors will direct the prosecutor to file a motion to withdraw Information. It is
still within the jurisdiction of the court to grant or deny such motion.
Process:
1. Offended party files a complaint-affidavit (different from complaint 2. File for suspension of arraignment. However, the suspension should not
directly filed in court to commence a criminal action); exceed 60 days. After which, the arraignment may proceed.
2. The fiscal shall issue a subpoena (summons) directing the respondent to
file a counter-affidavit within 10 days; The justice secretary is not precluded from exercising his power of review
3. Respondent files a counter-affidavit, otherwise, the prosecutor may over the investigating prosecutor even after the information has already been
proceed with the conduct of preliminary investigation with the evidence filed in court. However, the justice secretary’s subsequent resolution
of the complainant. withdrawing the information or dismissing the case does not cause the court
to lose jurisdiction over the case. In fact, the court is duty-bound to exercise
*a subpoena is not necessary to acquire jurisdiction. judicial discretion and its own independent judgment in assessing the merits
4. Complainant may file a reply-affidavit; of the resulting motion to dismiss filed by the prosecution
5. Respondent may file a rejoinder;
6. Complainant may file a surrejoinder; When Appeal to the Office of the President from the decision of the
7. Fiscal will submit for resolution DOJ may be had?
1. Those involving offenses punishable by reclusion perpetua to death
In Manila, Makati, QC and Caloocan – a case filed is raffled to an 2. Wherein new and material issues are raised
investigating prosecutor, the one who will determine whether a case a. which were not previously presented before the DOJ and
should be filed in court. Before the chief prosecutor signs the b. were not ruled upon in the subject decision/order/resolution
resolution for the filing of an information, the same is reviewed by a 3. The prescription of the offense is not due to lapse within six (6) months
reviewing prosecutor. from notice of the questioned resolution/order/decision, and
4. The appeal or petition for review is filed within thirty (30) days from such
Once filed, another prosecutor called the trial prosecutor, will be the notice. (Memorandum Circular No. 58)
one who prosecutes the case before the court.
Action to be taken:
8. The investigating prosecutor will issue, based on his findings, either: 1. the Office of the President MAY order the Secretary of Justice to
a. An Information if finding probable cause – he then attaches a draft reopen/review the case;
information to be reviewed by the reviewing prosecutor before 2. re-examine the merits of the appeal
signature of the chief prosecutor, or the chief prosecutor himself
reviews the resolution. Court’s finding of probable cause: Ordinarily, the determination of
probable cause is not lodged with this Court. Its duty in an appropriate case
The chief prosecutor may overturn the findings of the investigating is confined to the issue of whether the executive or judicial determination, as
prosecutor, the former would then dismiss the case. In this case, the case may be, of probable cause was done without or in excess of
there is no need to return the information to the investigating jurisdiction or with abuse of discretion amounting to want of jurisdiction.
prosecutor.
However, this Court may ultimately resolve the existence or non-existence of
b. A Resolution if not finding probable cause – he issues a resolution probable cause by examining the records of the preliminary investigation
to that effect for review by the chief or reviewing prosecutor. when necessary for the orderly administration of justice, or to avoid
oppression or multiplicity of actions. (Heirs of Tria vs. Obias)
If the chief/reviewing prosecutor finds probable cause, contrary to
the findings of the investigating prosecutor, the chief prosecutor Conspiracy need not be proven in finding probable cause: whether or
himself files the Information without returning it to the investigating not respondent actually conspired with Aclan and Ona need not be fully
prosecutor. resolved during the preliminary investigation. The absence or presence of
conspiracy is factual in nature and involves evidentiary matters. The same is
Resolution of investigating prosecutor, after being overturned by better left ventilated before the trial court during trial, where the parties can
the chief prosecutor, MAY still form part of the records: attachment adduce evidence to prove or disprove its presence. (Heirs of Tria vs. Obias)
of the overturned resolution to the filing of Information is optional:
there is nothing in the DOJ- National Prosecution Service (DOJ-NPS) Manual C. PROCEDURE IN METRO MANILA VS. OUTSIDE METRO MANILA
requiring the removal of a resolution by an investigating prosecutor
recommending the dismissal of a criminal complaint after it was reversed by Section 3. Procedure. — The preliminary investigation shall be
the provincial, city or chief state prosecutor. conducted in the following manner:

Nonetheless, we also note that attaching such a resolution to an Information (a) The complaint shall state the address of the respondent and shall be
filed in court is optional under the aforementioned manual. The DOJ-NPS accompanied by the affidavits of the complainant and his witnesses, as
Manual states that the resolution of the investigating prosecutor should be well as other supporting documents to establish probable cause. They shall
attached to the information only "as far as practicable." Thus, such be in such number of copies as there are respondents, plus two (2) copies
attachment is not mandatory or required under the rules. for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in
Case already filed in court: once an Information has been filed in court, their absence or unavailability, before a notary public, each of who must
the court has an absolute control over the case. (Ramiscal vs. Sandiganbayan) certify that he personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
Remedies of accused if an Information is already filed in court:
1. File for petition for review before the DOJ on the finding of probable (b) Within ten (10) days after the filing of the complaint, the investigating
cause; officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy
After which, an appeal may be had before the Office of the President. of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them
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REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
at his expense. If the evidence is voluminous, the complainant may be corresponding information without conducting another preliminary
required to specify those which he intends to present against the investigation, or to dismiss or move for dismissal of the complaint or
respondent, and these shall be made available for examination or copying information with notice to the parties. The same rule shall apply in
by the respondent at his expense. preliminary investigations conducted by the officers of the Office of the
Ombudsman. (4a)
Objects as evidence need not be furnished a party but shall be made
available for examination, copying, or photographing at the expense of the Section 5. Resolution of investigating judge and its review. —
requesting party. Within ten (10) days after the preliminary investigation, the investigating
judge shall transmit the resolution of the case to the provincial or city
(c) Within ten (10) days from receipt of the subpoena with the complaint prosecutor, or to the Ombudsman or his deputy in cases of offenses
and supporting affidavits and documents, the respondent shall submit his cognizable by the Sandiganbayan in the exercise of its original jurisdiction,
counter-affidavit and that of his witnesses and other supporting documents for appropriate action. The resolution shall state the findings of facts and
relied upon for his defense. The counter-affidavits shall be subscribed and the law supporting his action, together with the record of the case which
sworn to and certified as provided in paragraph (a) of this section, with shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b)
copies thereof furnished by him to the complainant. The respondent shall the affidavits, counter-affidavits and other supporting evidence of the
not be allowed to file a motion to dismiss in lieu of a counter-affidavit. parties; (c) the undertaking or bail of the accused and the order for his
release; (d) the transcripts of the proceedings during the preliminary
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not investigation; and (e) the order of cancellation of his bail bond, if the
submit counter-affidavits within the ten (10) day period, the investigating resolution is for the dismissal of the complaint.
officer shall resolve the complaint based on the evidence presented by the
complainant. Within thirty (30) days from receipt of the records, the provincial or city
prosecutor, or the Ombudsman or his deputy, as the case may be, shall
(e) The investigating officer may set a hearing if there are facts and issues review the resolution of the investigating judge on the existence of
to be clarified from a party or a witness. The parties can be present at the probable cause. Their ruling shall expressly and clearly state the facts and
hearing but without the right to examine or cross-examine. They may, the law on which it is based and the parties shall be furnished with copies
however, submit to the investigating officer questions which may be asked thereof. They shall order the release of an accused who is detained if no
to the party or witness concerned. probable cause is found against him. (5a)

The hearing shall be held within ten (10) days from submission of the Section 6. When warrant of arrest may issue. — (a) By the Regional
counter-affidavits and other documents or from the expiration of the Trial Court. — Within ten (10) days from the filing of the complaint or
period for their submission. It shall be terminated within five (5) days. information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the
(f) Within ten (10) days after the investigation, the investigating officer case if the evidence on record clearly fails to establish probable cause. If
shall determine whether or not there is sufficient ground to hold the he finds probable cause, he shall issue a warrant of arrest, or a
respondent for trial. (3a) commitment order if the accused has already been arrested pursuant to a
warrant issued by the judge who conducted the preliminary investigation
Section 4. Resolution of investigating prosecutor and its review. or when the complaint or information was filed pursuant to section 7 of
— If the investigating prosecutor finds cause to hold the respondent for this Rule. In case of doubt on the existence of probable cause, the judge
trial, he shall prepare the resolution and information. He shall certify under may order the prosecutor to present additional evidence within five (5)
oath in the information that he, or as shown by the record, an authorized days from notice and the issue must be resolved by the court within thirty
officer, has personally examined the complainant and his witnesses; that (30) days from the filing of the complaint of information.
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that (b) By the Municipal Trial Court. — When required pursuant to the second
the accused was informed of the complaint and of the evidence submitted paragraph of section 1 of this Rule, the preliminary investigation of cases
against him; and that he was given an opportunity to submit controverting falling under the original jurisdiction of the Metropolitan Trial Court,
evidence. Otherwise, he shall recommend the dismissal of the complaint. Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court may be conducted by either the judge or the prosecutor. When
Within five (5) days from his resolution, he shall forward the record of the conducted by the prosecutor, the procedure for the issuance of a warrant
case to the provincial or city prosecutor or chief state prosecutor, or to the or arrest by the judge shall be governed by paragraph (a) of this section.
Ombudsman or his deputy in cases of offenses cognizable by the When the investigation is conducted by the judge himself, he shall follow
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the procedure provided in section 3 of this Rule. If the findings and
the resolution within ten (10) days from their receipt thereof and shall recommendations are affirmed by the provincial or city prosecutor, or by
immediately inform the parties of such action. the Ombudsman or his deputy, and the corresponding information is filed,
he shall issue a warrant of arrest. However, without waiting for the
No complaint or information may be filed or dismissed by an investigating conclusion of the investigation, the judge may issue a warrant of arrest if
prosecutor without the prior written authority or approval of the provincial he finds after an examination in writing and under oath of the complainant
or city prosecutor or chief state prosecutor or the Ombudsman or his and his witnesses in the form of searching question and answers, that a
deputy. probable cause exists and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of
Where the investigating prosecutor recommends the dismissal of the justice.
complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on (c) When warrant of arrest not necessary. — A warrant of arrest shall not
the ground that a probable cause exists, the latter may, by himself, file the issue if the accused is already under detention pursuant to a warrant
information against the respondent, or direct any other assistant issued by the municipal trial court in accordance with paragraph (b) of this
prosecutor or state prosecutor to do so without conducting another section, or if the complaint or information was filed pursuant to section 7
preliminary investigation. of this Rule or is for an offense penalized by fine only. The court shall then
proceed in the exercise of its original jurisdiction. (6a)
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses or RTC; Action of the Court: upon filing of the Information, the court may:
modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
Cesar Nickolai F. Soriano Jr.
82 Arellano University School of Law 2011-0303
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1. Issue a warrant of arrest – if the determination of probable cause is as amended, in the presence of his counsel. Notwithstanding the waiver,
upheld, since there is always preliminary investigation for cases filed with he may apply for bail and the investigation must be terminated within
the RTC. fifteen (15) days from its inception.
2. Dismiss the case – if the evidence on record fails to establish probable
cause. After the filing of the complaint or information in court without a
3. Conduct a hearing for finding of probable cause. preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
MTC: same right to adduce evidence in his defense as provided in this Rule.
1. If the case underwent preliminary investigation – same procedure as (7a; sec. 2, R.A. No. 7438)
with the RTC;
2. If without preliminary investigation – Inquest: is the summary investigation conducted by an inquest prosecutor
a. The court can issue SUMMONS (instead of a warrant) if there is concerning an accused arrested without a warrant, for the purpose of filing
probable cause; an Information, without need of a preliminary investigation. It is an inquiry of
b. Dismiss the case for lack of probable cause; the prosecutor whether the accused should be detained or released for further
c. Conduct a hearing. preliminary investigation. In the absence of an inquest prosecutor, the
complaint may be filed by the offended party or the peace officer directly with
Summary Procedure: the court.
1. No warrant is issued, as provided under Sec. 16 of the Revised Rules on
Summary Procedure which categorically states "the court shall not order However, the accused is not barred from asking for a preliminary
the arrest of the accused except for failure to appear whenever investigation, provided waiver of Art. 125 of the Revised Penal Code is
required." obtained.
2. No preliminary investigation is required since the same is only required
if the penalty at least 4 years, 2 months and 1 day. Art. 125 of the Revised Penal Code:

Section 9. Cases not requiring a preliminary investigation nor Article 125. Delay in the delivery of detained persons to the proper
covered by the Rule on Summary Procedure. — judicial authorities. - The penalties provided in the next preceding article
shall be imposed upon the public officer or employee who shall detain
(a) If filed with the prosecutor. — If the complaint is filed directly with the any person for some legal ground and shall fail to deliver such person
prosecutor involving an offense punishable by imprisonment of less four to the proper judicial authorities within the period of; twelve (12) hours,
(4) years, two (2) months and one (1) day, the procedure outlined in for crimes or offenses punishable by light penalties, or their equivalent;
section 3(a) of this Rule shall be observed. The prosecutor shall act on the eighteen (18) hours, for crimes or offenses punishable by correctional
complaint based on the affidavits and other supporting documents penalties, or their equivalent and thirty-six (36) hours, for crimes, or
submitted by the complainant within ten (10) days from its filing. offenses punishable by afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his
(b) If filed with the Municipal Trial Court. — If the complaint or information detention and shall be allowed upon his request, to communicate and
is filed directly with the Municipal Trial Court or Municipal Circuit Trial Court confer at any time with his attorney or counsel. (As amended by E.O.
for an offense covered by this section, the procedure in section 3(a) of this Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).
Rule shall be observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause after Waiver: Delay in the delivery refers to the filing of the information, rather
personally evaluating the evidence, or after personally examining in writing than the information being immediately filed in court, the accused may try to
and under oath the complainant and his witnesses in the form of searching delay the same by asking for a preliminary investigation, provided he signs
question and answers, he shall dismiss the same. He may, however, the waiver of the above Art. 125.
require the submission of additional evidence, within ten (10) days from
notice, to determine further the existence of probable cause. If the judge Applicability: if the crime for which accused was arrested is not subject to
still finds no probable cause despite the additional evidence, he shall, a preliminary investigation, inquest will not apply.
within ten (10) days from its submission or expiration of said period,
dismiss the case. When he finds probable cause, he shall issue a warrant If the accused did not signify his desire to have a preliminary
of arrest, or a commitment order if the accused had already been arrested, investigation, it may be deemed waived if he is arraigned and he
and hold him for trial. However, if the judge is satisfied that there is no entered his plea: the accused-appellant signified his readiness to be
necessity for placing the accused under custody, he may issue summons arraigned, the Court can only conclude that he waived his right to have a
instead of a warrant of arrest. (9a) preliminary investigation, when he did, in fact, pleaded "Not Guilty" upon his
arraignment. (People vs. Valencia)
Under the Rules on Summary Procedure, if the penalty imposable on the crime
charged is less than 4 years, 2 months and 1 day, a preliminary investigation E. QUANTUM OF EVIDENCE
is no longer required.
PRIMA FACIE VS. PROBABLE CAUSE: Evidence good and sufficient on
D. INQUEST its face. Such evidence as, in the judgment of the law, is sufficient to
establish a given fact, or the group or chain of facts constituting the party’s
Section 7. When accused lawfully arrested without warrant. — claim or defense, and which if not rebutted or contradicted, will remain
When a person is lawfully arrested without a warrant involving an offense sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to
which requires a preliminary investigation, the complaint or information sustain a judgment in favor of the issue it supports, but which may be
may be filed by a prosecutor without need of such investigation provided contradicted by other evidence. [H. Black, et al., BLACKS LAW DICTIONARY
an inquest has been conducted in accordance with existing rules. In the 1190 (6th ed.,1990)]
absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace office directly with the proper court On the other hand, probable cause has been defined as such facts and
on the basis of the affidavit of the offended party or arresting officer or circumstances which would lead a reasonable, discreet and prudent man to
person. believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched.
Before the complaint or information is filed, the person arrested may ask
for a preliminary investigation in accordance with this Rule, but he must OTHER PROVISIONS:
sign a waiver of the provisions of Article 125 of the Revised Penal Code,
Cesar Nickolai F. Soriano Jr.
83 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Section 8. Records. — (a) Records supporting the information or or jail and shall be proceeded against in accordance with section 7 of Rule
complaint. — An information or complaint filed in court shall be supported 112. (5a)
by the affidavits and counter-affidavits of the parties and their witnesses,
together with the other supporting evidence and the resolution on the VALID WARRANTLESS ARRESTS
case.
1. In Flagrante Delicto Rule: “When, in his presence, the person to
(b) Record of preliminary investigation. — The record of the preliminary be arrested has committed, is actually committing, or is attempting to
investigation, whether conducted by a judge or a fiscal, shall not form part commit an offense;”
of the record of the case. However, the court, on its own initiative or on
motion of any party, may order the production of the record or any of its “has” – still in the vicinity of continuance. If it were “had,” it would have been
part when necessary in the resolution of the case or any incident therein, done already.
or when it is to be introduced as an evidence in the case by the requesting
party. (8a) “attempting to commit” – there must be an overt act. Otherwise, it is only in
the mind and the person cannot be arrested. Example: The act of pouring
V. RULE 113: ARREST gasoline all over the place is an overt act in committing arson.

A. DEFINITION Whose presence? The private person or the peace officer.

Section 1. Definition of arrest. — Arrest is the taking of a person 2. Hot Pursuit Rule: “When an offense has just been committed, and
into custody in order that he may be bound to answer for the he has probable cause to believe based on personal knowledge of facts
commission of an offense. (1) or circumstances that the person to be arrested has committed it”

HOW MADE: The arresting individual must know through his personal knowledge, not
merely hearsay.
Section 2. Arrest; how made. — An arrest is made by an actual restraint
of a person to be arrested, or by his submission to the custody of the Example: A told a policeman that X shot Y. The policeman cannot arrest X
person making the arrest. without a warrant based on the hearsay.

No violence or unnecessary force shall be used in making an arrest. The Under the rule of evidence, perception is not limited to seeing. Who may
person arrested shall not be subject to a greater restraint than is necessary testify? One who may perceive, and perceiving can make known his
for his detention. (2a) perception. Perception is not limited to seeing. Any exercise of any of the 5
senses may be considered as perception.
TIME OF MAKING ARREST:
Example: A police officer heard a gunshot. He knew it was a .45 caliber based
Section 6. Time of making arrest. — An arrest may be made on any day on his training. He saw a man running, holding a gun. He can arrest the man
and at any time of the day or night. (6) because he had personal knowledge. Although he did not see what happened,
he heard it.
DUTY OF ARRESTING OFFICER:
3. Escape Rule: “When the person to be arrested is a prisoner who has
Section 3. Duty of arresting officer. — It shall be the duty of the officer escaped from a penal establishment or place where he is serving final
executing the warrant to arrest the accused and to deliver him to the judgment or is temporarily confined while his case is pending, or has
nearest police station or jail without unnecessary delay. (3a) escaped while being transferred from one confinement to another.”

EXECUTION OF WARRANT:
4. Abscond Rule, under Rule 114, Sec. 23, par. 2: “An accused
released on bail may be re-arrested without the necessity of a warrant
if he attempts to depart from the Philippines without
Section 4. Execution of warrant. — The head of the office to whom
permission of the court where the case is pending.”
the warrant of arrest was delivered for execution shall cause the warrant
to be executed within ten (10) days from its receipt. Within ten (10) days
Procedure: delivery to the nearest police station or jail: When you arrest, you
after the expiration of the period, the officer to whom it was assigned for
can immediately file an Information against whom you arrested, provided you
execution shall make a report to the judge who issued the warrant. In case
complied with Section 6 of Rule 112 regarding inquest. You file the information
of his failure to execute the warrant, he shall state the reasons therefor.
with the court. There is no need for preliminary investigation proper.
(4a)
C. METHODS OF ARREST:
B. WARANTLESS ARRESTS
1. BY AN OFFICER
Section 5. Arrest without warrant; when lawful. — A peace officer
or a private person may, without a warrant, arrest a person:
a. WITH WARRANT:
(a) When, in his presence, the person to be arrested has committed, is
Section 7. Method of arrest by officer by virtue of warrant. — When
actually committing, or is attempting to commit an offense;
making an arrest by virtue of a warrant, the officer shall inform the person
(b) When an offense has just been committed, and he has probable cause
to be arrested of the cause of the arrest and of the fact that a warrant has
to believe based on personal knowledge of facts or circumstances that the
been issued for his arrest, except when he flees or forcibly resists before
person to be arrested has committed it; and
the officer has opportunity to so inform him, or when the giving of such
(c) When the person to be arrested is a prisoner who has escaped from a
information will imperil the arrest. The officer need not have the warrant
penal establishment or place where he is serving final judgment or is
in his possession at the time of the arrest but after the arrest, if the person
temporarily confined while his case is pending, or has escaped while being
arrested so requires, the warrant shall be shown to him as soon as
transferred from one confinement to another.
practicable. (7a)
In cases falling under paragraph (a) and (b) above, the person arrested
Inform the accused of:
without a warrant shall be forthwith delivered to the nearest police station
1. The authority of the arresting officer;
Cesar Nickolai F. Soriano Jr.
84 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
2. The fact that a warrant has been issued, but need not have the warrant Be it enacted by the Senate and House of Representatives of the
with him; Philippines in Congress assembled::
3. The cause of the arrest.
Section 1. Statement of Policy. – It is the policy of the Senate to value
The above does not apply if: the dignity of every human being and guarantee full respect for human
1. The accused flees; rights.
2. The accused forcibly resists before the officer has the opportunity to
inform him; Section 2. Rights of Persons Arrested, Detained or Under
3. When the giving of such information will imperil the arrest. Custodial Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation shall at
Section 10. Officer may summon assistance. — An officer making a all times be assisted by counsel.
lawful arrest may orally summon as many persons as he deems necessary (b) Any public officer or employee, or anyone acting under his order or his
to assist him in effecting the arrest. Every person so summoned by an place, who arrests, detains or investigates any person for the commission
officer shall assist him in effecting the arrest when he can render such of an offense shall inform the latter, in a language known to and
assistance without detriment to himself. (10a) understood by him, of his rights to remain silent and to have competent
and independent counsel, preferably of his own choice, who shall at all
Section 11. Right of officer to break into building or enclosure. — times be allowed to confer privately with the person arrested, detained or
An officer, in order to make an arrest either by virtue of a warrant, or under custodial investigation. If such person cannot afford the services of
without a warrant as provided in section 5, may break into any building or his own counsel, he must be provided with a competent and independent
enclosure where the person to be arrested is or is reasonably believed to counsel by the investigating officer.lawphi1Ÿ
be, if he is refused admittance thereto, after announcing his authority and (c) The custodial investigation report shall be reduced to writing by the
purpose. (11a) investigating officer, provided that before such report is signed, or
thumbmarked if the person arrested or detained does not know how to
Section 12. Right to break out from building or enclosure. — read and write, it shall be read and adequately explained to him by his
Whenever an officer has entered the building or enclosure in accordance counsel or by the assisting counsel provided by the investigating officer in
with the preceding section, he may break out therefrom when necessary the language or dialect known to such arrested or detained person,
to liberate himself. (12a) otherwise, such investigation report shall be null and void and of no effect
whatsoever.
Section 13. Arrest after escape or rescue. — If a person lawfully (d) Any extrajudicial confession made by a person arrested, detained or
arrested escapes or is rescued, any person may immediately pursue or under custodial investigation shall be in writing and signed by such person
retake him without a warrant at any time and in any place within the in the presence of his counsel or in the latter's absence, upon a valid
Philippines. (13) waiver, and in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal judge, district
b. WITHOUT A WARRANT: school supervisor, or priest or minister of the gospel as chosen by him;
otherwise, such extrajudicial confession shall be inadmissible as evidence
Section 8. Method of arrest by officer without warrant. — When in any proceeding.
making an arrest without a warrant, the officer shall inform the person to (e) Any waiver by a person arrested or detained under the provisions of
be arrested of his authority and the cause of the arrest, unless the latter Article 125 of the Revised Penal Code, or under custodial investigation,
is either engaged in the commission of an offense, is pursued immediately shall be in writing and signed by such person in the presence of his
counsel; otherwise the waiver shall be null and void and of no effect.
after its commission, has escaped, flees or forcibly resists before the officer
has opportunity so to inform him, or when the giving of such information (f) Any person arrested or detained or under custodial investigation shall
be allowed visits by or conferences with any member of his immediate
will imperil the arrest. (8a)
family, or any medical doctor or priest or religious minister chosen by him
or by any member of his immediate family or by his counsel, or by any
2. BY A PRIVATE PERSON:
national non-governmental organization duly accredited by the
Commission on Human Rights of by any international non-governmental
Section 9. Method of arrest by private person. — When making an
organization duly accredited by the Office of the President. The person's
arrest, a private person shall inform the person to be arrested of the
"immediate family" shall include his or her spouse, fiancé or fiancée, parent
intention to arrest him and cause of the arrest, unless the latter is either
or child, brother or sister, grandparent or grandchild, uncle or aunt,
engaged in the commission of an offense, is pursued immediately after its
nephew or niece, and guardian or ward.
commission, or has escaped, flees, or forcibly resists before the person
making the arrest has opportunity to so inform him, or when the giving of
As used in this Act, "custodial investigation" shall include the practice of
such information will imperil the arrest. (9a)
issuing an "invitation" to a person who is investigated in connection with
an offense he is suspected to have committed, without prejudice to the
D. RIGHT TO VISIT PRISONER; COUNSEL OR RELATIVE
liability of the "inviting" officer for any violation of law.
Section 14. Right of attorney or relative to visit person arrested.
Objection to irregularity of arrest must be made BEFORE the accused
— Any member of the Philippine Bar shall, at the request of the person
enters his plea on arraignment: Having failed to move for the quashing
arrested or of another acting in his behalf, have the right to visit and confer
of the information against them before their arraignment, appellants are now
privately with such person in the jail or any other place of custody at any
estopped from questioning the legality of their arrest. Any irregularity was
hour of the day or night. Subject to reasonable regulations, a relative of
cured upon their voluntary submission to the trial court’s jurisdiction. (People
the person arrested can also exercise the same right. (14a)
vs. Vasquez)
RIGHTS OF PERSONS ARRESTED: VI. RULE 114: BAIL

Republic Act No. 7438 April 27, 1992 A. CONSTITUTIONAL BASIS


AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS Art. III, Sec. 13 of the 1987 Constitution:
THE DUTIES OF THE ARRESTING, DETAINING AND
INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR Sec. 13. All persons, except those charged with offenses punishable by
VIOLATIONS THEREOF reclusion perpetua when evidence of guilt is strong, shall, before
Cesar Nickolai F. Soriano Jr.
85 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
conviction, be bailable by sufficient sureties, or be released on recognizable
as may be provided by law. The right to bail shall not be impaired even Should the court grant the application, the accused may be allowed to
when the privilege of the writ of habeas corpus is suspended. Excessive continue on provisional liberty during the pendency of the appeal under
bail shall not be required. the same bail subject to the consent of the bondsman.

Bail protects the right of the accused to due process and to be presumed If the penalty imposed by the trial court is imprisonment exceeding six (6)
innocent. (Juan Ponce Enrile vs. Sandiganbayan) years, the accused shall be denied bail, or his bail shall be cancelled upon
a showing by the prosecution, with notice to the accused, of the following
Purpose: is to guarantee the appearance of the accused at the trial, or or other similar circumstances:
whenever so required by the trial court. (Juan Ponce Enrile vs.
Sandiganbayan) (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
B. DEFINITION/DESCRIPTION (b) That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
Section 1. Bail defined. — Bail is the security given for the release (c) That he committed the offense while under probation, parole, or
of a person in custody of the law, furnished by him or a bondsman, to conditional pardon;
guarantee his appearance before any court as required under the (d) That the circumstances of his case indicate the probability of flight if
conditions hereinafter specified. Bail may be given in the form of corporate released on bail; or
surety, property bond, cash deposit, or recognizance. (1a) (e) That there is undue risk that he may commit another crime during the
pendency of the appeal.
Civil cases: in civil cases, there is a bond, which may either answer for
damages or for the award. In criminal cases, there are bail bonds, in order to The appellate court may, motu proprio or on motion of any party, review
provide temporary liberty to a person in c