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Transcendental Importance – Agan v. PIATCO , Republic

v. Guingoyon, Asia’s Emerging Dragon v. DOTC. The SC is
The solar system of remedial law revolves around the sun of not governed by the rules.
jurisdiction. Remove the sun, all the planets will die. 3. SC is not a trier of facts
Appellate – second time (pangalawang bf)
Any judgment, decision, final order or resolution rendered by a City of Manila v. Judge Cuerdo –
court without jurisdiction is null and void. Split-Jurisdiction is anathema to procedure.
I don’t even pay my taxes. Jurisdiction of the Supreme Court Sec 5 of Art VIII of the
Forcible entry and unlawful detainer. A leases unto B, B will pay a. All cases involving ambassador and public minister
3k per month. B failed to pay. A Filed before the RTC. It should be b. Petitions for CPM, QW and HC
dismissed on the ground of lack of jurisdiction.
Petitioner filed petition for certiorari before the SC. It should be EXCLUSIVE - Final orders, resolutions, decisions, judgment of CA,
filed before the RTC pursuant to the doctrine of hierarchy of CTA En banc, SB, COA, COMELEC, Shariah Appellate Courts. All
courts the rest would be concurrent.

Jurisdiction is the authority to hear and determine a case. BAR MATTER WRIT OF AMPARO PROPER – JURISDICTION
Any authority of the court may only be exercised if there is Appellate Jurisdiction of the SC
justiciable controversy. If the controversy is not justiciable, it is By appeal or certiorari so if it is by appeal it would be Rule 45
beyond the scope of judiciary. which is a mode of appeal. If certiorari, rule 65.
Jurisdiction lies with the regular courts.
One Supreme Court AS TO OBJECT: Umpisahan sa baba
Article VIII of the 1987 Constitution 1. Jurisdiction over the subject matter
Memorize Sec 5 Art VIII Jurisdiction over the subject matter is conferred by law.
Read BP 129, RA 7691, RA 8369
Regular Courts Family Courts and RTC are separate and distinct from each other.
Court of Tax Appeals had been regularized. It now forms part of Remember that Family Courts are creations of law. They are not
the regular courts. It has been elevated to the level of a CA. (RA instituted through SC Circulars. Unlike Special Criminal Courts,
9282) Intellectual Property Courts, Drug Courts.

Regional Trial Courts Bar Matter

Lower Courts - MeTC MTCC MTC McTCShariah Courts – Circuit, Memorize Rule 113 Sec. 5 Warrantless Arrest VERBATIM.
District, Appellate The Supreme Court jurisdiction is not conferred by law. It is
Villagracia v. the 5thShariah Circuit Court (2014) – the Shariah conferred by Constitution. Sec 5 Art VIII. First par refers to
Courts do not have jurisdiction over real actions where one of original jurisdiction. 2nd par refers to appellate jurisdiction. All
the parties is not a muslim. the rest has nothing to do with jurisdiction.
Lomondot v. Balindong 762 SCRA – Any decision of the Circuit The law governing Sandiganbayan. RA 7975, 8249 the latest is RA
Shariah court must be brought to the district and any decision of 10662.
the district must be brought before the Shariah appellate court. Shariah Court 1054.
Quasi-judicial have jurisdiction pursuant to the law or circular CTA RA 9282
issued by the Supreme Court creating them. RA7691
QJ bodies falling under the executive department has power to Exclusive original jurisdiction isa lang yan. Annulment of
determine justiciable controversies. judgment of RTC under Rule 47.
Military Courts are not really courts as it is known. They can only Bar matter Santos v. Santos 737 SCRA
take cognizance of military service oriented disputes. Eto magasawa to who were married in QC, lived in QC. Wife
There are cases which can be brought before the military courts went to HK. 1st and 2nd year nagpapadala. on the 3rd 4th 5th yr
and regular courts e.g. coup d etat biglang naglaho. On the 7th year of absence ata, Mr Santos filed
declaration of presumptive death case for purposes of
Jurisdiction: According to Nature remarriage. He filed the case in Tarlac. after trial RTC granted it.
Original – first time(virginal) He remarried and lived in Tarlac. Mrs. Santos filed an annulment
It may either be exclusive or concurrent(confluent). of judgment before the CA. She argued that all the while she
Exclusive – one and only never left for HK, her husband knows that she was in QC they
Concurrent – several courts can take cognizance of a case. The were never separated. It was Mr. Santos who left and live with
party has no absolute power/right where to bring it. his kalaguyo. So there was fraud in obtaining the judgment. Mr.
3 Fundamental Principles on Concurrent Jurisdiction Santos said that the remedy was wrong. She should have filed an
1. Hierarchy of Courts – it should be brought before the affidavit of reappearance. The SC said J.Leonen there is no other
lower court remedy but Rule 47 and not that simple affidavit of
Annulment of Judgment of MTC – bring that to RTC not CA
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Annulment of Judgment of quasi-judicial bodies – there is no A files an action for recovery of parcel of land against B. But B is
such remedy. Remedy is Rule 43. nowhere to be found. Can the case continue? Generally the case
All the rest, appellate jurisdiction. cannot continue bec the court cannot acquire jurisdiction over
2. Jurisdiction over the persons of the parties the person of the defendant B. What should A do? Let the
court acquire jurisdiction over the res. How? Rule 57-
Plaintiff – Kumpleto dapat sagot eto: Attachment. Apply for a writ of preliminary attachment. If it is
The court acquires jurisdiction over the person of the plaintiff granted, the court acquires jurisdiction over the property. The
upon filing of the complaint and timely payment of the correct case can continue nonetheless as long as the court acquire
docket fees. Jurisdictional yan. jurisdiction over the res. Watch out for the enumeration. See
Rule 57 Sec. 1 is exclusive.
Even if you pay but pay out of time or pay it on time but it is Secs 14 and 16 of Rule 14 on Summons
incorrect, the court does not acquire. where the defendant’s whereabout is unknown
Landmark Case of Alday v. FGU, Proton v. Banco National De temporarily outside the philippines
Paris, Rubi Shelter Doctrine. SLU v. Cobarubbias. Gipa v. Southern these are the instance where the court may acquire jurisdiction
Luzon Institute. Revisit these cases over the res and proceed even if it does not acquire jurisdiction
We have gone back to the doctrine in Alday v. FGU. Docket fees over the person of the defendant.
are required also in permissive counterclaims.
Not limited to complaints only, even counterclaims require the 4. Jurisdiction issue – determined by the allegations in the
payment of docket fees. Forget about Lerma Doctrine. Apply pleadings. If it is not alleged, the court does not have
Alday v. FGU juris over the issue but could be a subject matter of trial
Docket fees are required only in permissive counterclaims. Pleadings – Complaint, Answer, Reply
On appeal, kailangan din ang docket fees. It is not equated to In Spec pro – Issues are not determined by the pleading. It is
filing fees only but all other required fees. It includes deposit. determined by law.

Gipa Case A filed a complaint against B for sum of money. In A’s complaint,
SLU filed a case against Gipa et al for recovery of property of SLU. he never mentioned about DEMAND letters before he filed the
SLU won before the RTC of Sorsogon. Gipa appealed to the CA. complaint. In the course of trial, A’s counsel was trying to
He appealed by mail and pinadala yung pera. Pagdating sa CA establish that there was demand by presentation of demand
timely naman. CA said kulang ang docket fees. Gipa said it is letters. What should the counsel for the defendant do? The
enough they already paid 3000. CA said kulang ng 30 pesos. Gipa counsel for the defendant should object on the ground of lack of
argued I have paid substantially. SC said the court did not acquire jurisdiction over the issues. The objection must be immediately
jurisdiction because the payment was incorrect. raised. The issues regarding demand letters were not raised in
the pleading. What should the court do? Sustain. The court has
Saint Louis v. Cobarubbias no jurisdiction. What is the remedy of the plaintiff? go to Sec. 5
Cobarubias was an employee of SLU. Tinerminate siya. Talo si Rule 10. Amendment to conform to evidence.
Cobarrubias so he appealed(certiorari) to CA. Cobarubias paid
the docket fees. SLU opposed that it was paid out of time. The SC There are cases where the law already specifies the issues:
said the court did not acquire jurisdiction. The non-payment will Unlawful Detainer/Forcible Entry - issue of possession de facto.
not toll the prescriptive period. Any issue other than possession de facto is outside the
Defendant – upon valid service of summons or voluntary jurisdiction of the court. However, Sec 16 R70 when the issue of
appearance. ownership is raised in the pleadings, the court is not divested of
Co-defendant - upon valid service of summons or voluntary jurisdiction but must resolve the issue of ownership to resolve
appearance. the issue of possession.
3rd, 4th, 5th party defendant – upon impleading such party. You Probate of a will – the only issue is the authenticity and due
cannot implead them without leave of court. execution of the will. Ownership of the property belonging to
Intervenor – Rule 19. You cannot intervene without leave of estate is not the issue there. But it can be raised and therefore
court. the court acquires jurisdiction over the issue.
Parties to Crim Case - Republic and Accused
Spec Pro Petitioner 5. Jurisdiction over the territory – does not apply in civil
3. Jurisdiction res – “thing” cases. It applies therefore in criminal cases. The court
This refers to the object of the action. Should the court acquire must have jurisdiction over the territory. Territory
jurisdiction over the res in order to proceed with trial? NO. it where the crime is committed. In civil cases, territory is
does not have to. as long as the court has acquired jurisdiction not a matter of jurisdiction but a matter of venue.
over the person of the defendant, it does not have to have Venue is jurisdictional in criminal cases
jurisdiction over the res. But when is jurisdiction over the res
necessary? When the court cannot acquire jurisdiction over the Rules on VENUE
person of the defendant. The case can continue nonetheless, as 1. provided for by law or Rule
long as the court has jurisdiction over the res. If it is a right, it will 2. Agreement of the parties
not apply. 3. Apply Rule 4 Sec. 1 or Sec. 2

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In criminal cases: NO. Sec 8 of R.40 WILL NOT apply. That should be REMANDED to
Jurisdiction over the offense charged the MTC on an action involving title to or possession of property.
Jurisdiction over the person of the accused Now what is the doctrine?
Jurisdiction over the issues Ans: That accion publiciana is not necessarily cognizable by the
When does the court acquire jurisdiction over the issues? Upon RTC because accion publiciana may involve title to, or possession
arraignment of property where the DETERMINANT of the jurisdiction is the
The jurisdiction of the RTC pursuant to R.A 9281, just read them. ASSESSED value of the property. 20k and below if outside MM.
What is important here? 50K and below if it is within MM. (within the jurisdiction of the
Action not capable of pecuniary estimation (sagad na sagad nay lower court)
an. Gasgas nay an) (
Procedurally what is meant by action not capable of pecuniary Side Topic)
estimation is where a party prays for money, is determinable by Yung dyan sa Sec. 8 R.40 (Appeal from MTC to RTC) (Appeal from
money, then it is capable of pecuniary estimation BUT if money orders dismissing case without trial; lack of jurisdiction)
becomes IMMATERIAL OR INCIDENTAL as the rule provides, then It provides that if RTC has jurisdiction it shall assume jurisdiction
it is not capable of pecuniary estimation. as if it was originally filed with the RTC. Pero kung wala I remand
Kaya nga you have to look at the prayer in the complaint. If the mo duon gaya ng sa vda. De barrera case.
prayer is ultimately for money then it is determinable, capable. Remember that R.40, Sec.8 is an exception rather than the
If money is only incidental then it is not capable. general rule. Bakit? You look at the nature of this provision. An
EX: The prayer is finish the construction of my house AND pay me appellate court can only take cognizance of a case in the exercise
P250K. (The 250K is only incidental) of its appellate jurisdiction if the lower court has original
But if you change the prayer into, “finish the construction of my jurisdiction. So in this case the RTC is taking cognizance of the case
house OR pay me 250K (there’s an alternative) so now it is capable in the exercise of its appellate jurisdiction but assuming original
of pecuniary estimation. (Itatanong ba to sa bar? Hindi na, hindi jurisdiction ultimately kasi walang jurisdiction yung MTC. (Hindi ba
na itatnong yan, diniscuss ko lang kasi we will not leave any stone it violates the basic rule? That an appellate court can only take
unturned. Hahaha) cognizance of a case exercising appellate jurisdiction if the trial
court has original jurisdiction, ngayon this is an instance where the
An action for a sum of money, you have to distinguish the principal trial court has no original jurisdiction but in the exercise of its
claim, the claim for interest, attys fees, damages of whatever kind. appellate jurisdiction assumes jurisdiction as if it was originally
What DETERMINES jurisdiction is the PRINCIPAL claim for money. filed with it. (Yun ang impact nitong sec 8 r.40) (intindihin dahil
But there was one bar problem where the promissory note there are possible questions there)
specifically provides for principal 250K, Damages 100K, Interest
100k, Attys fees 50k. Well, ano pang importante?
This promissory note was made the basis of a claim for a civil case. Estate Proceedings
Where should it be filed? Under R.A 7691, estate proceeding whether testate or intestate
ANS: It is no longer an action for sum of money but it is already for may be taken cognizance of by the lower court depending on the
a breach of contract irrespective of the amount. BREACH is gross value of the estate.
INCAPABLE of pecuniary estimation.
Yung jurisdictional amount (Wag kalimutan)
How about an action involving title to or possession of property. 300k and below MTC outside, 400k and below. MTC inside. Tie this
The DETERMINANT of jurisdiction is the ASSESSED value of the up with the totality rule, on the joinder of causes of action.
property. (Eto pwede pa ito lumabas) (This was asked last year
indirectly in relation to sec 8, Rule 40) Now. Jurisdiction of the RTC vs. Family Court, (Basahin ang 7691
in relation to 8369)
Presentation of problem: Marriage you don’t file this anymore with the RTC. Take note with
A files a case for unlawful detainer (this is an exclusive & original the law transferring the subject matter involving family etc to the
jurisdiction) however there was no valid demand (remember Family Court.
demand to vacate & pay is jurisdictional, and provides a period
that it should be filed not more than 1yr from the last demand) Guardianship. Guardianship over minors (Family Court) yan. But
In this particular case the demand was beyond the 1yr period how about Guardianship over an incompetent RTC yan. Now if the
hence the court has no jurisdiction for unlawful detainer & forcible incompetent is a minor eh family court, because R.A 8369 clearly
entry hence the MTC dismissed the case for lack of jurisdiction. states that whenever a minor is involve, then it is automatically
That order of dismissal is a final order hence it is appealable. This and exclusively cognizable by the family court. (Take note of the
was appealed to the RTC (Accion publiciana) from accion simple distinctions)
interdictal it now becomes accion publiciana cognizable by the Anti-Violence Against Women And Children(R.A9262) – Family
RTC. Courts
All cases regarding marriage and marital relation – Family Court
When the RTC analyzed the allegation in the complaint it was How about drug cases? That is RTC, pero If it involves a minor even
discovered that the assessed value of the property was within the though it is with the drug court it has to be transferred to Family
jurisdiction of the MTC. Therefore the RTC has now jurisdiction as Court. Absolute kasi ang rule.
well. (eto yung kaso sa Vda. De bareira doctrine?) (Note: the minor must be a party to the case) ayan ang titignan
So what does the RTC do? Assume jurisdiction? niyo. Being a witness is not a party. Therefore, it remain with the
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RTC. You will only be a party to the case if you are either the Aside from Hannah serranah case, as far as the 1st criterion is
plaintiff or the defendant. concern is the case of Ramiscal vs Sandiganbayan, anong kaso ito?
In fact in criminal cases the party is the complainant the Republic Falsification.
of the PH and the accused. Eto this is ticklish, because if the Then ang pangatlo although this not directly related kasi civil ito,
private complainant is a minor in criminal cases, where should it forfeiture. Sandiganbayan took cognizance pursuant to the case of
be? Clarita Garcia vs. Sandiganbayan.
Is he a party to the case? Technically he is not a party to the case So aside from the first four mentioned by law, etong tatlong case
because in criminal case the party is only the republic of the PH naman ay provided by the jurisprudence. (So this answer are first
and the accused. BUT that is still with the FAMILY COURT. question)
Yan ang tatandaan niyo. Absolute yan ah. Kapag ang minor. Do not 2. What crime or offense was committed?
confuse this with the rule of evidence, the exclusion. Na the court Will that answer the jurisdiction of the SB? No hindi pa, the next
can exclude nonparties to the case. is who committed the offense.
So, the private complainant in a criminal case can be excluded. Ans: Public officer with Salary Grade (SG) 27.
Why? Because he is not a party to the case. But yung regarding So kahit na anti-graft yan if you are not a public officer, or even if
jurisdiction you don’t apply that provision. It is always absolute you’re a public officer but your SALARY GRADE is 27, your case is
when a minor is involve it is WITH the FAMILY COURT. NOT within the jurisdiction of the Sandiganbayan.
(Ok, this answers the second question)
SANDIGANBAYAN. Ngayon by jurisprudence na aamyendahan yan ah. Although still
This is not a constitutional court. It is a constitutionally mandated the landmark case of Escobal vs. Gatchitorena applies, the SB does
court but it is still a creation of law not a creation of the not have jurisdiction over Escobal because he is a sergeant of the
constitution. There is only one constitutional court and that is the PH army but his salary grade is merely 23.
Supreme Court. All the rest are creations of law or constitutionally May bago ngayon, new case. Duncano vs. SB 762 SCRA. The SC
mandated. said: Duncano is not within the jurisdiction of the SB because the
The Sandiganbayan has both the original and appellate jurisdiction regional director of the BIR, is only Salary Graded 26.
over criminal cases. BOTH original and appellate. Now.
Unlike the Supreme Court and the Court of Appeals they DO NOT 3. How was the offense committed?
have original jurisdiction over criminal cases. SC & CA – NO Ans: the offense was committed in relation to one’s public office.
ORIGINAL jurisdiction over criminal cases. “in relation to one’s public office” was construed to be that the
But the SB has BOTH. public office must be the ingredient of the crime.
Etong mga tanong na to No. 1,2,3 is only a GEN.RULE because this
Let’s discuss the original jurisdiction. Under the original was somehow amended by the Hannah Serrana vs SB case. (Kaya
jurisdiction, the original law is P.D 1606 but this is under the it’s a must to read this case)
present, R.A 7975 as amended by 8249 the latest law is R.A10662 Hannah Serrana Case:
But still to determine the jurisdiction of the SB pare pareho. You Hannah Serranah was a member of the Board of Regent, she hails
just have to answer three (3) fundamental questions in from the UP Visayas. The Governing body of a State university is
determining the jurisdiction of the Sandiganbayan. the Board of Regent.
1. What offense or crime was committed? She solicited money from President Joseph Estrada to renovate
2. Who committed the crime or offense? the vinzons hall in the UP. The President gave her millions,
3. How was the offense or crime committed? however nothing happened with the project.
1. What offense or crime was committed? Apat lang ito. There are So the following year, the successor in the Board, filed a case of
only under the law four crimes or offenses cognizable by the Estafa against her before the Sandganbayan.
SB Hannah filed a motion to quash on the ground of lack of
a. R.A 3019 the Anti-Graft & Corrupt Practices Act jurisdiction. Why?
b. Ill-gotten wealth law 1379 Accdg to her:
c. Bribery under the RPC 1. Estafa is not among the crimes cognizable by the SB
d. Law on the PCGG Cases, E.O1, 2, 14, 14-A 2. Assuming that it is, I’m not a public officer.
Apat lang yan. All the rest is not with the jurisdiction of the 3. Assuming again that im a p.o, I do not have SG 27.
Sandiganbayan. And this was enunciated in two landmark cases. 4. And even if it is, I did not commit it in relation to my one’s
The first is the case of Sanchez vs Demetrio: Mayor prosecuted for public office. (which must be an element or ingredient of
rape with homicide, who said, Mayor ako dapat sa SB ito, SC held the crime)
that you don’t have to be a mayor to be a rapist. (To commit rape)
The other case is the kuratong baleleng case Lacson vs. Executive SB denied the quashal of the information. So Hannah went to SC
Secretary. Murder case, the SB said that murder does not fall raising the same issues. SC held that:
within its jurisdiction. 1. From now on, Estafa will be cognizable by the SB.
Kaya yun lang apat nayun. (Walang rationale)
However, jurisprudence has added other crimes Hannah Serranah 2. Who is a p.o? it is someone who performs public function
vs Sandiganbayan (IMPT ITO!) MUST READ CASE. and considering you are a board of regent, you’re
Anong kaso ito? Estafa. performing a public function, you’re a public officer.
Estafa is not within the laws, pero now ESTAFA is within the 3. If you try to look at the law 1606, not all public officers
jurisdiction of the Sandiganbayan are salary graded. There are a lot of p.o who do not have

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SG, like presidents of state colleges, directors, trustees of Ano ang determinant ng jurisdiction in criminal cases? Basically it
GOCC. (you fall under this category) is the penalty imposable. 6yrs & below MTC. 6yrs & 1 day RTC.
4. “As long as the public office facilitated the commission of However, take note of the exceptions because the law itself
the crime, it is done in the performance of one’s public provides, irrespective of the penalty imposed, the following are
office. with the RTC: like written defamation, illegal recruitment,
Therefore, the 3 requirements earlier mentioned was somewhat violations of the omnibus election code (if not with the COMELEC),
amended by the Hannah Serranah Case. (KAYA BASAHIN NYO TO) Anti – Money laundering law, Cybercrime prevention act of 2012.
Yung ramiscal somewhat nakapasok na yung falsification.
8249 history ng jurisdiction ng Sandiganbayan. Daanan niyo din. Universal Jurisdiction: yung sa cybercrime prevention act, it is
universal or international jurisdiction. Ex: Laptop, and you see a
we will study some kinds of jurisdiction already given in the Bar libelous matter against you. (Now: where does the crime
already. committed) will you follow the rule that it is where the crime was
Delegated Jurisdiction: it is the jurisdiction of the MTC in handling first published and printed? Ans: wala na to.
cases of land registration and cadastral cases where the assessed Kasi ngayon sa Cybercrime, it transcend space. Will discuss this
value is not more than 100k and there are no oppositors. with the Electronic Evidence.
Importanteng tatandaan niyo dtto is the appeal therefrom is not
to the RTC. This is the only case where a judgment or decision of Residual Jurisdiction: is the jurisdiction of the trial courts that
the MTC is not brought to the RTC, but brought to the C.A (Yan remains with it even if has lost jurisdiction over the case.
lang, exercise of delegated jurisdiction) Do not confuse this with residual prerogatives, as laid down by
Katon vs. Palanca, which refers to the jurisdiction of the appellate
Special Jurisdiction: is the jurisdiction of the lower court in courts to dismiss a case motu proprio pursuant to sec 1 rule 9.
handling petitions for bail and petitions for habeas corpus in the (yung apat nay un) This is residual prerogative yan.
absence of RTC judges. “JUDGES” When does trial court lose jurisdiction over the case?
Limited Jurisdiction: is the jurisdiction of the court that can handle Upon perfection of appeal (Sec. 9, R.41)
only specific subject matter like probate court, mtc court handling Appeal is perfected upon filing of the notice of appeal of approval
unlawful detainer and forcible entry cases. of the record on appeal either or. (perfection only)
Primary Jurisdiction: already laid down in the early case of Omictin It only loses jurisdiction over the case only upon expiration of
vs. CA. The primary jurisdiction refers to the jurisdiction of quasi period to appeal:
judicial body in handling administrative cases pursuant to the 15 days from receipt of the copy of judgment. So when that
exhaustion of administrative remedy principle. already expires then the court loses jurisdiction.
Ex: If you are a subdivision owner and you filed a case against the Notwithstanding the loss of jurisdiction over the case, the trial
subdivision developer, you cannot bring that to regular court. You court can still act on certain matters on the case in the exercise of
have to file it first with the HLURB residual jurisdiction.
Landlord/tenant = file with the DARAB
Contractor Subcontractor = CIAC (Construction Industry Illustration:
Arbitration Committee) Mr. A files a case against 3 defendants X, Y, Z.
A vs XYZ
Ang latest concept ngayon ng primary jurisdiction refers already Then judgment was rendered in favor of A, copies of judgment
to jurisdiction of an investigative agency which is the office of the were received by X Y Z on Jan 5, 10, 15, respectively.
ombudsman. Therefore, counting 15 days from receipt of the copies of the
How did this happen? 2 yrs ago there was a MOA signed between judgment they have until 20, 25 & 30 of January respectively.
the OBM and the DOJ between Leila Delima & Carpio Morales. Suppose X, files a notice of appeal on January 8. When is the
In the MOA: All cases cognizable by the SB in the exercise of its appeal perfected? Ans: appeal is perfected on January 8 as to X
ORIGINAL JURISDICTION must be investigated by the Office of the only.
Ombudsman, so that if it is under investigation by the DOJ, the When is the appeal perfected as to Y and Z? Ans: ang sagot niyo
Office of the Ombudsman can take it away from the DOJ and the question is wrong. Because they never filed a notice of appeal,
continue the investigation in the exercise of PRIMARY so appeal can never be perfected as to y and Z.
JURISDICTION. (Look at now the meaning of the primary Ang dapat tinanong, when does the court lose jurisdiction over the
jurisdiction) case?
This somehow amends the case of sanchez vs Demetrio: in this The court loses jurisdiction over the case after January 30.
case the SC said there is concurrence of jurisdiction between the Because the last day to appeal is January 30. By whom? By Z. who
office of the ombudsman and the doj in conducting cases received a copy of judgment January 15.
cognizable by the SB . So by January 31, the court has no more jurisdiction over the case.
Ngayon this is somewhat amended. Notwithstanding that it has lost jurisdiction over the case, the trial
Pero take note ah, this is limited cases cognizable by the court can still act on certain of matters about the case in the
Sandiganbayan in the exercise of its ORIGINAL JURISDICTION. exercise of residual jurisdiction
Jurisprudence however, the exercise of residual jurisdiction can
In relation to criminal procedure, only be done by the trial court as long as the records of the case
Sandiganbayan is principally a criminal court. But take note of are still with the trial court.
R.111, that whenever a criminal case is filed the civil aspect arising Rules on appeal, 40-45 tignan niyo ang transmittal. Pag MTC to the
therefrom is deemed instituted with the criminal case. RTC 15 days. From RTC to the CA 30 days. So within that period.
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ANSWER IT INRELATION TO PRINCIPLE OF JURISDICTION. ☺ ) Because civil cases are deemed instituted with the criminal case
Let us summarize all the principles we have discussed for the last the docket fees is a lien, first lien on the judgment.
3 hours: XPN: BP 22, you always have to pay the docket fees. (No
1hr 4min reservation kasi ditto)
Principle on concurrent jurisdiction: Rule 2: Causes of Action.
Hierarchy of courts The act or omission in violation of the right of another. Don’t get
Transcendental importance confuse of section 3 of rule 6, is a complaint. Complaint is Plaintiffs
That the Supreme Court is not trier of facts cause of action. Does that violate rule 2? Apparently it does.
Jurisdiction as to its object
Venue is jurisdictional in criminal cases Where lies the cause of action? It lies with the defendant, but look
at the definition of complaint. May conflict.
Jurisdiction over the issues is determined by the allegations in the It is resolved by interchange of words. A complaint is “right of
pleading action”
Jurisdiction over the res is not necessary but if the court cannot
acquire jurisdiction over the person of the defendant and acquires There can never be a right of action if there is no cause of action.
jurisdiction over the res then the case can continue So COA and ROA are the two sides of the same coin. Two banks of
Jurisdiction over the subject matter is conferred by law the same river. Correlative yan.
Jurisdiction over the persons of the party as to the plaintiff upon
filing of the complaint and timely payment of correct docket fees. There are 2 principles:
May bago ngayon 2015 case, yung marine mammals. Can they be One suit for a single cause of action & joinder of causes of action.
parties? Of course they cannot be parties mammals un eh. One suit for a single cause of action: Because if you bring out 2 or
But marine mammals represented by owners. Environmental laws more suit from the same act or omission, you call that splitting a
ito. single cause of action, and that violates the principle of multiplicity
Rule 1 General Provisions. of suits. 1 is to 1 lang dapat.
Sec 4 & 5.
Although general provision states that this rule shall apply in all EX: A leases unto B a property for 2 years, at the expiration, B fails
cases. But they have suppletorily application in land registration to surrender the property. A now files a case for recovery of
and cadastral cases, naturalization, election and in other which property. Suppose he also filed a recovery for unpaid of rentals.
may be provided for by law. (That will be splitting a single cause of action. Because it arose
2013 case (Sasan vs NLRC) from one act)
But Ong Chia Case still good. (Naturalization) Documents were still
admissible even if they were not offered. Now. Even if there are only two parties in a case A vs B but they
Followed by Sasan Case: have several transactions which are separate and distinct from
Before the LA judgment was rendered, in favor of the each other, there are several acts or omissions.
complainant, the nthe employer went up on appeal submitting
several document and he complains that this should not be IF B defendant borrowed money from the plaintiff in January then
admitted bec they were neven offered before the arbitration borrowed another same amount in April, and then in December.
branch. SC: Rules of court is merely suppletorily. There are 3 borrowing. How many act or omission will he commit
if he fails to pay? Ans: 3. (Series of acts)
Sec. 5: Commencement of the action. Upon filing of the complaint
+ timely payment of docket fees. Will this violate multiplicity of suits? ANS: NO. Because this three
Criminal Cases R.110, 2 ito. borrowings are separate and distinct.
Criminal Action & Criminal Proceeding.
But don’t ever confuse this with joinder of causes of action. This is
As to the criminal action upon filing of the complaint for purposes not the opposite of one suit for single cause of action.
of preliminary investigation. (Complaint you filed in the fiscal Ex: If B borrowed money from A, 150k January, then another 150K
office for purposes of P.I, this is commencement of criminal in april. Total obligation 300k on separate and distinct transaction,
action) (Note: Prescription is tolled upon filing of the criminal by December on the same year he borrowed again 1M but this
action. time with security of REM. There were 3 separate and distinct
But commencement of criminal proceeding is upon filing of the
complaint (one filed in court) or information. Can A file only one suit against B? ANS: YES.
Question can he file 3 cases? ANS: YES.
Docket fees in criminal cases: Generally not required. 1. Complied with joinder of parties. (there’s series of
However if there is an allegation as to the civil liability and there 2. It is of the same nature. (collection suit)
is an allegation as to the amount prayed for civil liability you have 3. As long as one is cognizable by RTC
to pay docket fees. 4. Totality rule (1,3M) thus with the RTC.
If there’s no allegation to that, what happen to docket fees in
criminal cases? You know have joinder of causes of action.
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Suppose A filed 150 and 150 in the same court plus foreclosure. Who may be parties? Natural person, Juridical person or entities
Can he do that? Ans: No. because there is already a special civil authorized by law. But even there is a natural person, a juridical
action. Violates the 2nd requirement person or an entities authorized by law, still there is another
Can B file a motion to dismiss? Ans: NO. Misjoinder & Non joinder qualification, which is in Section 2.
of causes of action not a ground for dismissal. So what is his
remedy? Ans: Amendment. Who moves to amend? Pwedeng si A Even if you are natural person, juridical person, entity authorized
or B. by law, you cannot just sue and be sued. The 2nd qualification is
Now suppose it was B who asked for amendment and A does not even more important that the 1st. Because, only parties in
want to comply, what should B do now? Ans: he can now ask for interest can sue or be sued. This is strictly procedural.
dismissal. On the ground of failure to comply with the order of the Parties-in-interest, please memorize that, preferably verbatim.
court. Actually, this recurs every now and them. Pag may problem sa
Transcribe – Audio 3: Remedial Law party in interest, sagutin mo palagi sa Rule 3, Section 2.

Rule 3: Parties Who is a party in interest? One who stands to be benefited or

Section1. Who may be parties? injured by the judgment in the suit.
Answer: Natural person, juridical person, and entities authorized
by law. That is why, if you are suing as a representative party, under
Section 3, you are not actually a party-in-interest, you are only
So if Beings from the planet Mars invade Earth, can we sue representing someone who is a party-in-interest. That is why the
them? rule provides, that if you suing as a representative party, you
No, they are not natural persons. They are aliens. Just to have to name the party in interest.
emphasize the point of natural person.
For example, you are the guardian, representing the ward, you
But if a man is born with one eye, three mouths, five noses, can have to state who is the ward, if you are the administrator
you sue him? Yes, because he is a natural person. representing the estate, you have to state which estate are you
representing. So this is very clear, representative party must
So what makes a person a natural person? One who is endowed always state the party-in-interest. Because, that party cannot sue
with reasons. or the suit would be inappropriate if he does not implead the
party in interest pursuant to section 2 of Rule 3.
And what are the faculties of reasons? Intellect and will. Those
are the faculties of reason. Natural person, juridical person and entities authorized by law,
aside from that, he must be a party-in-interest. And who is a
Intellect is directed towards truth. The will is directed toward party in interest, One who stands to be benefited or injured by
somun bonum (goodness). So as long as the person can exercise the judgment in the suit.
that, he is a natural person. That is why, this is quite relevant,
because if you are presented with problem with natural person, Yung sinabi ko na marine mammals, hindi pwede yun because it
you can always think that way. is not a party interest. Unang una, not under section 2 but rather
section 1. It will not fall on either, natural person, juridical person
So why can’t we sue insane person or imbecile, generally or entities authorized by law.
speaking? Because he has lost or does not have the full exercise
of his reasons. How about spouses?
“What has God has joined together, let no man put a sun there.
Juridical person may also sue or be sued. That is another point. So they have to sue or be sued together. You look into the
How do you define juridical persons. Juridical persons are person exceptions.
created by law. An example is a corporation.
The exceptions are when:
Entities authorized by law. What are these? Under section 15 of • A husband is suing for or relative to his capital property
Rule, entities without juridical personality. Entities without or the the wife suing relative to paraphernal property
juridical personality can also sue and be sued. A classical example • Cases between or against each other
of entity authorized by law is the estate of the person. • Crime committed by one spouse
• Administrative case against one spouse against another
If XYZ presents themselves as a business enterprise, can it sue
and be sued? Yes, because they are entity authorized by law. In Ordinarily, they must be joined together. You tied this up also
fact under rule 14, how do you summon/ how does the court with motion to dismiss under section 1 of rule 16, the conditions
acquires jurisdiction over these entities without juridical precedent.
personality. Like a partnership which is not duly registered, or
which is not accredited or registered with proper agency. Can Ordinarily, under the present rule, the family code, hindi conjugal
you sue the partnership? Yes, it is an entity without juridical partnership. The general rule is that absolute community. That is
personality. But once it is registered, it will not fall under entity why when the husband files, he must always include the wife or
without juridical personality but rather a juridical person. when you sue the husband, you should always include the wife.
2017: AUSL BarOps Remedial Law Team Page 7 of 109
stockholders/directors. Basic is the rule of Corporation law that
How about a minor. directors have separate and distinct personality from the
A minor may be benefited or injured by the judgment of a suit. corporation itself. They have entered into Compromise
But considering that the minor does not have the full exercise of Agreement. In the compromise agreement, the party considers
his reason, his intellect and will, he must be duly represented. the property belonging to Olympia, which was never impleaded
While this is not a representative per se, but the rule provides in the complaint. When they have to execute the compromise
that even a minor or an incompetent, can sue and be sued but agreement, it was raised, the Olympia Corporation was never
always be through parent or guardian, or in the absence of both, impleaded in the Original complaint. So if you have to execute
guardian ad litem. the judgment against Olympia, it is totally unprocedural because
you cannot execute a judgment against someone who is not a
Under the rules there are two very important kinds of parties. party to the case and Olympia here as a corporation was now
We call them indispensable parties or necessary parties. Know included in the compromise agreement when the case is
the distinction. You just hold on to two word, to make the proper between incorporators. So how you could possibly implement?
distinction. An indispensable party is one without whom there But what is more important here is that considering that the
can be no final determination of the case. A necessary party is property involve here is subject to execution belongs to Olympia,
someone without whom there can be no complete you can never execute them and any judgment will be rendered
determination of the case. Just hold on to these two words: null and void, including this judgment on compromise agreement
FINAL and COMPLETE. because an indispensable party which is Olympia, is not
Doctrine on indispensable party: Land bank of the Philippines vs. Cacayuran,
Any judgment, decision or final order, without impleading an In this case the members of the Sangunian bayan entered into a
indispensable party renders the judgment, decision or final order contract of loan with a bank. Security for the loan is a property of
null and void not only to those who not impleaded but also to the municipality. But the municipality was never impleaded. SC
those who where impleaded. You must always implead an said that the municipality here is an indispensable party. So
indispensable party. whatever decision, judgment or final order rendered is null and
A very good example of these are co-owners. General Rule: Co-
owners are indispensable parties. So if you do not implead an Necessary Party
indispensable party, the judgment is null and void. But Someone without who there can be no complete determination
jurisprudence told us that co-owners are only indispensable of the case. So even without impleading the necessary party, the
party defendants because when a co-owner files as a plaintiff, case can go on and judgment can be rendered.
only one co-owner is indispensable. But look at section 9 thereof of Rule 3, it say there that if you do
not implead a necessary party, you have to give the reason why
Example. If H and W are husband and wife, and they live behind he/she was not impleaded. Allege in your pleading why you are
after their death A,B, C, D and E as their children, the A, B, C, D, not impleading the necessary party, why there should be no
and E are co-owners of the property left by H and W. complete determination of the case.

If A files a case against anyone, will that be valid to the aspect of What is the effect if you failed to implead the necessary party?
indispensable party? Yes. A does not have to include B, C, D and You cannot run after him anymore.
E because he is a party plaintiff.
Suppose X would like to sue relative to co-owned property of A, Exceptional case:
B, C, D and E, should A, B, C, D and E be impleaded as An indispensable party was never impleaded by the SC said that
defendants? Yes. the judgment is valid. That is the judgment laid in the case of De
Castro v. Court of Appeals. In this case, there were five siblings,
Suppose X only impleads, A and B, leaving C,D and E as non party they owned a property (co-owners). Two of the sisters entered
to the case, what will be the judgment? The judgment will be null into a contract of agency with X, authorizing the latter to sell the
and void not only with respect to C,D and E but also to A and B. property. The property was finally sold pursuant to the contract
of agency. Thereafter, X filed a complaint against A and B,the two
Please read Cases: sisters on the ground he did not receive the commission
Iglesia ni Cristo v. Ponferada pursuant to the contract of agency. The two sister file a motion
David vs. Paragas Jr. (source of BAR question) to dismiss for failure to implead an indispensable party, C, D and
Land Bank of the Philippines vs. Cacayuran E, the other three sisters. When this reached the SC, the SC
sustained the doctrine which I have enunciated. While co-owners
Who were considered indispensable party? re indispensable parties, but here, the judgment is valid because
the kind of action is based on the contract of Agency (breach of
In the case of David vs. Paragas. The Corporation known as contract).
Olympia, was never impleaded in the action. The action was only
against the petitioner, Paragas and David and Co., never Landbank vs. Oliver
impleading the corporation which they were the
2017: AUSL BarOps Remedial Law Team Page 8 of 109
Oliver 1 secured a loan with Chinabank. It was secured by the No, the case should continue. But it is now incumbent upon the
property owned by Oliver 2. During the pendency of the loan, counsel of the other party to cause the substitution. This time, he
Oliver 2 (true Oliver) said “I am the right Oliver, the one who has to make sure that there is an appointed executor or
contracted the loan is not the true Oliver.’’Oliver 2 filed a case administrator of the estate. So iba. Kapag ang nagsubstitute ay
against the Bank. The Bank moved to dismiss the case on the ang counsel of the decedent, no need for appointment. He just
ground of failure to implead an indispensable party (Oliver 1). need to report that these are the heirs of the decedent. And if
According the SC Oliver 2 is a third party, and therefore, Oliver 1, they want, they have to appear within a certain period of time
the mortgagor is not an indispensable party. and the case continues. But kung hindi ginawa yan, then the
other party will do it, But this time, he have to cause the
When a mortgagee filed a case for the annulment of mortgagee. appointment of the executor or administrator of the estate.
The mortgagee is an indispensable plaintiff. And who will be the
indispensable defendant? The mortgagor is an indispensable This means that the appointment that appointment is judicial.
defendant. But in this particular case of Landbank and Oliver, Now, if he does not do this, this is without prejudice.
take note that it was not the mortgagor who filed the case but
rather a third party so that the mortgagor there is not an This is an exception to the cutting of the lawyer-client
indispensable party. relationship.

Transfer of interest But this provision applies only when the actions survives.
The transferee is not an indispensable party. The transferee is
only a necessary party. Section 17
When a public officer is incapacitated or dies or resigns, what
Relate this also with Rule 68. Under rule 68, which provides that happens to the case? It is now incumbent now on the successor
in action for foreclosure a real estate mortgage, you have to whether to continue or not to continue. Hindi mandatory. The
implead all persons whose rights are subordinate to that of the successor may or may not continue the action upon the
holder of the mortgage. Are they indispensable parties? No. They incapacity, death or resignation of the public officer.
are only necessary parties.
Section 20.
Unwilling plaintiff Very complicated. Apparently simple but complicated.
Unwilling plaintiff is one who does not want to join the prey.
What you need to do with an unwilling plaintiff? Sue him as Contractual money claims. Sino ang namatay dito? Not the
defendant. plaintiff, it is only the defendant. And what is the nature of the
action? It is an action for money but based on contract, whether
Example: A, B , C ,D and E are brothers and sisters who are co- express or implied. This is an example that of a case that
owners of a property. A would to file a case and he asked B or C survives.
or D or E to join him but refused. Can A possibly sue them? Off
course. But why he should do it? The principle is that only one co And when the defendant dies, the rule is, the case should not be
–owner plaintiff is an indispensable party. But supposed he dismissed but shall proceed upon entry of judgment. It does not
wanted to implead them, he can do so, considering that they are say upon final judgment but up to final entry of judgment. And
an unwilling plaintiff. you know very well than an executory judgment must be final
but a final judgment is not necessarily executory. And ang
The most important Sections in Rule 3 are Sections 16,17 and 20. continuation dito ng kaso is up to entry. In other words,
thereafter after the judgment has been rendered, execute and
Section 16. Death of a Party satisfy the judgment. And how do you normally, execute and
Under section 16, when a case is pending and one of the parties satisfy a judgment, Rule 39, you file a motion for execution.
dies, what happens? You have to qualify whether the action
survives or the actions does not survive? If the action does not BAR
survive, then wala na, dismissed na. But if the action survives, it Is that applicable under Section 20? No. That does not apply in
is the duty of the counsel of the decedent to cause the the section 20. Because to execute an entered judgment on
substitution of the decedent and he has to do that within a contractual money claims, you have to apply it as a claim against
period of thirty days. But please underscore that these does not the estate under Rule 86. Very exceptional because you do not
require for the appointment of the executor or administrator. go to the usual route under Rule 39. Lumabas sa 2014 bar exam
Why I emphasize that? Because upon the death of the person, he pero indirectly.
is succeeded by the estate.
When the defendant dies pendete lite in an action for sum of
The counsel of the decedent does not have to secure the money based on contract, either express or implied, the case
appointment of the executor or administrator. Any heir can be shall no be dismissed.
substituted. Exceptional, exceptional, that is why I give emphasis
to that. Tignan moa ng next paragraph. So may cross reference yan sa Rule 86. You will find out that
claims against the estate are limited only to four: funeral
Next paragraph provides that if after 30 days or if the counsel of expenses, expenses of the last illness, judgment for money and
the decedent does not substitute, Should the case be dismissed? money claims.
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In order to be binding, the agreement must be couched in terms
If the action is recovery of real or personal property, or any of exclusivity and a word “shall” is not mandatory. It should be
interest therein or lien thereon, you do not apply 86, you apply stronger than than that. The term exclusively will do. In no other
87, actions by or against executor or administrator. place, this is a term of exclusivity. But a simple word “shall” is not
mandatory because the purpose of the venue is for the
Let us complicate further. convenience of the parties.
Suppose during the pendency of the case, the plaintiff was able
to secure a writ of preliminary attachment under Rule 57, so Read the following case:
during the pendency of the case the property is already attached Shaunfeld Doctrine
to secure the satisfaction of a favorable judgment. Then the Sweetline vs. Teves (Contract of Adhesion)
defendant died. What happens not to the attached property?
Will you apply the usual procedure in 57? You don’t have also to BPI Savings Bank vs Sps. Cojuito, 2015 case. (BAR matter)
proceed under Rule 39 or you immediately proceed to Sale on Subsidiary issue on venue. Extra-judicial foreclosure. Remember
attachment? Or you will go again in the settlement of the estate? that under extra-judicial foreclosure, walang deficiency
judgment. But is that proscribed absolutely? No. Of you want to
Answer: You have still to go with the settlement of the estate. collect your deficiency in an extra-judicial foreclosure, you have
But the attached property is not discharged by the death of the to file a separate action. In this particular case, mayroong
defendant. Hindi mawawala yung settlement of estate. Tuloy pa deficiency. The deficiency was brought in Makati when the
rin. properties was found in manila and according to the respondent,
the case should be dismissed on the ground of improper venue.
Correlate also with Rule 130 (Evidence) Why? Because this deficiency judgment is just a continuation of
Section 23. Deadman’s statute disqualifications. Ano ang the original foreclosure action. The SC said, this is different. This
requirements? is extra-judicial foreclosure. So that a separate action is no longer
Four requirements (2 and 3 requirements): a real action but rather a personal action. And because it is a
2. Action must be against the executor or personal action it must be brought with the residence of the
administrator. plaintiff or defendant at the option of the plaintiff. Hindi na eto
3. It must be a claim against the estate. real or quasi-real action. Dun kayo possibleng tanungin.

Hindi ba conflicting? Why? Claims against the estate is in Section The rule provides that in the absence of an agreement, apply
5 of Rule 86. An action by the executor or administrator is under sections 1 and 2. If it is a real action, venue is where the property
87. So bakit yun ang kelangan ng deadman’s statute? or portion thereof is located. When it is a personal action, then,
at the residence of the plaintiff or any principal plaintiff or
Conflicting yung two requirements. No. That’s not. The defendant or principal defendants at the option of the plaintiff.
interpretation of claims against the estate there is not under
section 5. In other words, even if you file the claim against What are the basic distinction between venue and jurisdiction?
executor or administrator, the one ultimately liable is the estate. Jurisdiction is the authority while venue is the place. Venue is not
You are not filing this against executor or administrator in his/her conferred by law and can even be subject to agreement but
personal capacity. But in his representative capacity. jurisdiction is conferred by law and cannot subject to agreement.
And hence, as consequence of that, venue is waivable while
Section 21, Indigent jurisdiction is not. Finally, venue creates relationship between
Itatanong pa bay an sa bar? Hindi na. the parties while jurisdiction creates relationship between the
court and the parties.
Rule 4. Venue
Doctrine: The present rule now is that no waiver of venue when you fail to
Venue is jurisdictional in criminal cases. But in civil case, the rule file a motion to dismiss on the ground of improper venue.
in venue is not section 1 and 2, but rather Section 4. If there is Because venue now may be raise as an affirmative defense in
law that provides for venue, that must be followed. You cannot your answer. But once you fail to raise that in your answer, that
do anything but to follow the rule. For example, Rule 66 quo is where the waiver lies.
warranto. Under Rule 66, the venue must be the respondent’s
residence. The law on adoption, the rule on venue is the Rule 5. Uniformity
residence of the adopter. The law on guardianship, the residence
of the ward is the venue of the action. Summary Procedure (1991 Revised Rule)
Amendments not yet incorporate in the revised rule:
Paragraph a of section 4, is the general rule. In the absence of a 1. Limitation on the attorney’s fees (no longer applicable)
rule or a law, providing for venue, paragraph b. You go now to
the agreement od the party. The First thing you should note is Salient points:
that the agreement must be entered into before the case is filed. 1. Summary procedures apply only in the lower courts.
You cannot agree on the venue while the case is pending. It must There is no summary procedure in the RTC or higher
be before. courts.

2017: AUSL BarOps Remedial Law Team Page 10 of 109

2. In summary procedure, there is not trial. In lieu of trial,
parties submits position papers, affidavits, depositions. There are other several lines between C and B because cross
On the basis of these papers and affidavits, the court claim must also be answered. And there is also counter cross-
renders judgment. If there are things need to be claim. There can also be a counter counter cross claim.
clarified by the court, then the court may motu proprio
set a date for clarificatory questions. Now if C impleads for example D. Who will be D? D would be the
third-party defendant. And C would be the third-party plaintiff.
Exceptions is in criminal cases, criminal cases there is And this line would represent the third party complaint.
half trial. While it is covered by the Rules on Summary
Procedure, there is still confrontation by the accused If D impleads X for example. X would be the fourth-party
against his/her witnesses. One of the rights of the defendant. In relation to what? Not in relation to the third-party
accused is to confront the witnesses against him and defendant, but rather to the fourth-party plaintiff. Plaintiff si D as
that can only be done through trial. far as X is concern.

3. The prescriptive procedures are shorter than regular So these are the different kinds of pleadings. The last party that
procedure. we discuss was the intervenor, E. So what is his position in
4. There are prohibited pleadings. Take note of this relation to the pleading? He crosses the entire action. Under Rule
prohibited pleadings because we will going back to this 19, it says there that the intervenor must have interest over the
on writ on amparo. subject matter or he must have interest in favor of the plaintiff or
interest in favor of the defendant, as the case may be.
Motion to dismiss is a prohibited pleading under Rules on
Summary procedures. Is that absolute? No, may exception: (1) So pag meron kayong mental picture nitong relationship, it is not
MTD on the ground of lack of jurisdiction (2) non-compliance difficult to analyze the problem. Pag binasa nyo halimbawa isang
with the conciliation proceeding under the barangay conciliation kaso, Asian Development Corporation vs. Court of Appeals, you
procedure rule (pre-maturity). get lost along the way because the case uses co-defendant, then
counter claimant, then third-party, fourth-party, so ang dami, so
Demurrer of Evidence is a form of motion to dismiss. Is it a you get lost along the way. But with this mental picture, you
prohibited pleading? The answer is no. Why? (1) The demurrer is never get lost along the way.
for the purpose of expediting. (2) What the law does not include
it excludes. In the law, demurrer to evidence is not a prohibited Let us discuss them one by one.
pleading. Compliant
The first pleading is the complaint. Section 3 of Rule 6 says that
How about motion for reconsideration? Are they prohibited the complaint is the pleading alleging the plaintiff’s cause or
pleadings? Yes, but take note. Motion for reconsideration of a causes of action. We discussed that already in relation to Rule 2.
judgment. So if it is an interlocutory order, motion for
reconsideration is not a prohibited pleading even under the rules Answer
of summary procedures. How about the answer? The answer is the pleading emanating
from the defendant is response to the complaint. What is
If a case is handled by the MTC under the Rules on Summary constituted in the answer? Defenses.
Procedures, and judgment was rendered and it was appealed, it
is no longer covered by the rules on summary procedure. Kapag Under the rules, there are two general kinds of defenses. It can
umakyat na yan sa RTC or higher, regular procedure na. either be negative defense or affirmative defense. And what is
negative defense? Negative defenses are of two kinds. The first
Rule 6: Kinds of Pleading kind is specific denial of the allegations in the complaint. And the
Imagine five lines. Line 1, line 2, line 3, line 4 and line 5. These second one is lack of knowledge sufficient to form a belief as to
are connecting lines between the plaintiff and the defendants. So the truth of allegations of the complaint.
let us give one plaintiff here A as against defendant B and C.
These are the two kinds of specific denial. When you deny the
A is the plaintiff. B is the defendant allegations in the complaint, which is found in your answer, it is
not specific simply because you are using the word “specific”.
1st line from A to B, represents complaint. When you say “I specifically deny the allegations in paragraph 2
2nd line from B to A, represents answer. of the complaint.”, that will not be a specific denial.
3rd line from A to B, represents reply.
4th line from B to A, represents counterclaim. So how do you specifically deny, give the reason, give the basis
5th line from A to B, represents counter counterclaim. for your denial. “Defendant specifically denies the allegations in
So that is to the maximum the pleadings referred to in Rule 6. paragraph 5 of the complaint, the truth of the matter being that
…” Ibibigay mo yung reason. Being that, I never borrowed
A line connecting B to C or C to B represents the cross-claim. So Php50,000 from the plaintiff. So may rason ka. But to put an end
when you hear the word cross-claim, alam nyo agad kung saan after denying it or using the word specifically, does not amount
yun. If there is only one defendant, there is no cross-claimant. to specific denial.
Hindi magkakaroon ng cross claimant.
2017: AUSL BarOps Remedial Law Team Page 11 of 109
In the second kind of specific denial, baliktad naman ang These is very pronounced in criminal cases. In criminal cases, if
ginagawa ng mga abogado. Example: As to paragraphs 8,9 and you are charged for a crime, and you put up an affirmative
10, defendant has no knowledge sufficient to form a belief as to defense, it means, that you have done the charged. But you put
the truth of them or those allegations. Period na dapat, huwag up something to contravene the claim, to defend yourself from
nyo ng dadagan “and therefore, they are denied.” Otherwise, any liability.
you are contradicting yourself. If don’t have any knowledge
sufficient to form a belief as to the truth of the allegations, how BAR
can you deny that? Wala ka ngang knowledge eh. Lumabas yan sa BAR. Akala mo the question is Evidence but the
answer is actually in Rule 6. Question: What is an affirmative
Negative pregnant. defense? its effect.
Negative pregnant is a sign the of contradiction. Because when
you are pregnant, you are positive. But this is an instance when If an accused is charged for the crime of murder, and he puts up
you are claiming you are pregnant but you are negative. It is a an affirmative defense of self-defense. It means that he really
denial pregnant with admissions. killed the victim. But in so doing, he is nonetheless not criminally
liable. Otherwise, he would have killed. Ang defense, affirmative
So when is there a denial pregnant with admissions? When the defense.
allegations is a simple declarative sentence, negative pregnant
will not apply because there is no qualification in the allegation. When the defendant or the accused puts up an affirmative
Example, defendant borrowed Php50,000 from the plaintiff, wala defense, the effect of that is REVERSE TRIAL. Evidence na yun.
jan, that is a simple declarative sentence. There can be no Kaya nga pag tinanong ka “What is a reverse trial?”, kung di mo
negative pregnant applicable there. You either deny it or admit alam ang affirmative defense, di masasagot yun. There is only a
it. Hindi pwedeng deny pregnant with admission. reverse trial when the accused/defendant puts up an affirmative
defense. In the order of trial under Rule 132, nalakagay dun
Baguhin natin, let make the allegation/sentence more complex. mauna muna plaintiff pagkatapos ang defendant. When the
“Defendant borrowed Php50,000 from the plaintiff while the defendant/accused puts up an affirmative defense, ano pa ang
plaintiff was washing her clothes. You deny it. “I did not borrow evidence in chief ng plaintiff? Wala na, admitted eh. So ang
Php50,000 while plaintiff was washing her clothes. Negative magprerpesent na ng evidence would be the accused.
pregnant. Bakit? Because when you deny that you never
borrowed money from the plaintiff while the plaintiff was Charged for Murder. Affirmative defense of self-defense. So
washing her clothes, you must have borrowed sometime, while admitted na the fact of killing. So hindi na magpuput-up ng
doing other things, (perhaps, while going to the market). Yun ang evidence in chief yung prosecution. It is now incumbent upon the
concept ng negative pregnant. defense to put up its defense, yung evidence in chief nya sa self
defense. After that, ang mga susunod na, yung prosecution. The
Landmark case on negative pregnant: prosecution will put up rebuttal evidence.
1972 case of Galopa v. Ni Bong Sing
Latest cases: Under the rules, reply is the answer/response to the answer.
Republic vs. Sandiganbayan. Eto yung kaso ni Emelda Marcos.
The Republic of the Philippines before the Sandiganbayan If you do not file a reply, the allegations in the answer are
charged the Marcoses of having stolen millions of dollars and deemed controverted. You are in effect denying the allegations
deposited it in seven Swiss bank accounts. Allegations yan. Ano in the answer. So you do not need any reply. However, there
ang denial ng mga Marcoses, “we never deposited money in instances where reply is necessary. When the answer puts up a
seven Swiss bank accounts”. Negative pregnant yan, baka you defense which is totally alien from the allegations in the
deposited it in twelve Swiss bank accounts not is seven Swiss complaint. Then there is a requirement for a reply.
bank accounts.
Example. Rule 8, section 7 & 8, actionable documents. When the
Affirmative Defenses. defense puts up an actionable document, kelangan yung reply.
When the defendant puts up an affirmative defense, it means Because if you don’t, the Rule provides that it is deemed
that he is admitting the allegations. There is an implied or admitted. Which is admitted, the authenticity and due execution
hypothetical admission when the defendant puts up an of the document. They must be denied specifically under oath.
affirmative defense. But, in putting up that defense, the
defendant he uses other matter in defense of his position. Under General Rule: No reply is necessary. Exception: When the
the rules, andami jan. The enumeration is not even exclusive. But answer puts up new matters.
some will give you an idea what an affirmative defense is. Like
payment, collusion, statute of frauds, statute of limitations, Counter claim
prescription. When the defendant says of payment, he is The counterclaim is the complaint of the defendant against the
hypothetically admitting that he really borrowed the money from original plaintiff. Hiwalay na pleading ang counterclaim. It is a
the plaintiff and by borrowing money, he admits the allegations different pleading from an anwer.
that he owes the plaintiff. However, he is no longer liable
because he has paid it. May a plaintiff be declared in default?

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The answer is yes. The plaintiff may declare in default relative to
a permissive counterclaim. Because the counterclaim is separate If A files a case against B and C for sum of money for Php100,000.
and distinct from the answer. But may agreement si B and C that what B borrowed from A in
the amount of Php100,000 will go only to B. C may file a cross-
In the counterclaim, there are two kinds. The compulsory claim against B.
counterclaim and permissive counterclaim. Docket fees are
required only in permissive counterclaim. Compulsary Against a cross claim is answer to the cross claim. Against an
counterclaim do not require the payment of docket fees. answer to the cross-claim, pwede rin reply. It defends, if it is
applicable, or also a counter cross claims, as the case may be.
When it is compulsory and when it is permissive?
It is compulsory when it arises from the same cause in the What I would like to emphasize here, is that when a B or C files
complaint. From that complaint, arises the counterclaim. an answer to the cross claim, he can already allege in his answer
Without the complaint, there can be no compulsory to A. Ang sagot ni B kay C is not only against C but also against A,
counterclaim. Remove the complaint, the compulsory who is also the principal plaintiff. Because between B and C, C is
counterclaim will have no legal leg to stand on. What gives rise to the plaintiff and B is the defendant.
the compulary counterclaim is the complaint.
And that principle holds true also in a case of a third party
Permissive, in the other hand, does not arise from the allegations defendant.
in the compliant. Classical illustration: Alday vs. FGU. Cited by the
by the SC are the requisites/ determinants of a compulsory When D, files his answers to the complaint of C, he answers also
counterclaim: the complaint of A against C. Kasama na un dun.
(1) Evidence test rule
(2) Res Judicata rule So these are the different pleadings.
(3) Litis Pendencia
Rule 7: Parts of the pleadings
In that particular case, Alday, is an agent of FGU Insurance. FGU
insurance filed a case against Alday for non-remittance of Review your subject in legal forms. Anong importante sa Rule 7,
premium. Sections 3,4, and 5. Signature and address, verification and
certification against forum shopping.
In her counterclaim, Alday said that she was not given her
bonus/commissions. And because of the complaint, she contends Signature and Address
that she suffered sleepless nights, wounded feelings, moral Who should sign the pleading? The pleader.
damages and also to show good example, she also entitled to And who is the pleader? If is should be the plaintiff, the plaintiff.
exemplary damages. And for the fact that she was force to If it should be the defendant, the defendant. However, if the
secure the services of the counsel, she is entitled to Attorney’s party is represented by a lawyer, the lawyer must sign. Not the
fees. Yun ang counterclaim. Sabi ng FGU, dismiss the party himself.
counterclaim for non-payment of docket fees. Sabi ng SC, sandal
muna, tignan muna natin ang counterclaim ni Alday. Mayroon So it is wrong to say that plaintiff and defendant, cannot not sign
siyang permissive counterclaim at meron siyang compulsary the pleading. They can sign, If they are not represented by a
counterclaim. counsel. But if they are represented by a counsel, their signature
would be incomplete. It must always be signed by the counsel, by
Bakit nagkaroon ng wounded feelings, besmirch reputation, the lawyer. Unlike verification and certification against forum
sleepless nights si Alday? Because of the complaint. This is a shopping under Section 4 and 5. Verification and certification
compulsory counterclaim. against forum shopping must be signed by either all the plaintiff
or by any plaintiff who are duly authorized to sign for and in
Pero yung claim for the unpaid bonuses, commission, it did not behalf of the others.
arise from the complaint of FGU and therefore, this is a
permissive counterclaim, for which, Alday should pay docket Where lies the distinction between verification and certification
fees. against forum shopping?
In the case of verification, it is not jurisdictional. Therefore, it is
Relate to Rule 17, Section 2. subject to amendment. If you failed to verify the pleading and
the verification is required, you may ask for the delayed
Counter counterclaim verification of the pleading because it is not jurisdictional.
The complaint of the plaintiff brought about by the counterclaim.
In the case of certification against forum shopping, it is not also
Intervention jurisdictional. However, it a ground for dismissal. Kapag walang
Under Rule 19 certification against forum shopping, the count may dismiss the
complaint either on motion of motu propio for lack of
Cross-claim certification against forum shopping.
The cross-claim is that the defendant is asking for subrogation,
indemnification and contribution. BAR
2017: AUSL BarOps Remedial Law Team Page 13 of 109
Memorize verification and certification against forum shopping. Actionable documents are written materials or written
Kasi, lalabas yan sa BAR. documents that used as the basis of one’s cause of action or
defense. If you are collecting a sum of money based on
If you were asked to prepare a pleading, huwag ng mag isip pa promissory note, the promissory note is an actionable document.
kung lalagyan ng verification and certification of forum shopping. If you are answering a case of annulment of document, you are
Kasi even if it not required and you put one, wala kang the defendant and you include in your answer the deed of sale,
deduction. But if is required and you did not place one, meron as a matter of defense, you also using an actionable document.
kang deduction. But be careful, unless the question itself
provides that no verification is required. Whoever uses an actionable document, whether the plaintiff or
the defendant, the adverse party must deny it specifically under
Who will verify and certify against forum shopping? oath. Meaning to say, that whether it is initiatory pleading or
Even if the party is represented by the lawyer, it should be the not, you have to verify the pleading. Remember, under Rule 7,
party himself who should sign in the verification and certification verification is required only in initiatory pleading. But if a plaintiff
against forum shopping. uses an actionable document, your answer as a defendant must
also be verified. Ordinarilly, an answer need not be verified. But
What is the general rule? All the parties (plaintiffs or defendants) if the complaint contains an actionable document, answer must
should sign the verification and certification against forum be verified.
shopping. Exception: If one of the parties is duly authorized by
the others (co-plaintiff or co-defendant). How do you allege an actionable document? Two ways
1. Copy the document verbatim in your pleading; or,
Corporate parties 2. You can only copy the substance of the document and
It must be verified and certified against forum shopping by the attach the copy of the document in the pleading.
authorized representative of the corporation as provided in the How do you contest actionable documents? You contest it by
Board Resolution (not special power of attorney). specific denial under oath.
Reason. In order to contest the authenticity and due execution of
Read case of Iglesia ni Cristo vs. Ponferada the actionable document.
In the case, parties are co-owners. If plaintiffs are co-owners,
only one of the co-owners will suffice in signing the verification Case:
and certification against forum shopping. But if they are Benguet Exploration Incorporated vs CA.
defendants, all of them (co-owners) must sign the verification SC provides that when you deem to have admitted the
and certification against forum shopping. actionable document for failure to specifically deny under oath.
You are only admitting the following:
Rule 8: Manner of making allegations in the pleading 1. That the document was signed
2. That the document appears what it is now (meaning no
Important Provisions: alteration)
Section 7 and 8: Actionable documents. Take note of this as we 3. That the document was delivered
will compare this with Modes of Discovery under Rule 26. 4. That all the formalities of the document have been
complied with the formalities
Tie up Rule 8 with Rule 7, Parts of Pleading
Start with jurisdictional facts. Yun lang ang admission. Baka bigyan kayo ng problem ha about
lack of verification, look at the consequences. Admission means
Special considerations under rule 8. that you have admitted only the authenticity and due execution
If you alleging fraud, you have to allege that with particularity. of the document. You are not admitting the content/s of the
You cannot just say, the defendant committed fraud or failed to document.
comply with his obligation fraudulently. Kulang yan, that is a
wrong allegation of fraud because fraud must be allege with Exceptions that you need not deny the documents under oath:
particularity unlike malice or other conditions/state of the mind. 1. When you are not privy to the document (meaning you
are not a party to the instrument)
In connection with fraud, when you allege fraud, you have an 2. When you asked for the production of the document
affidavit of merits. Affidavit of merit is required in an allegation and it was not complied with.
of Fraud. However, as a matter of jurisprudence, if you explain
what constituted fraud, in the body of you complaint, you do not But you still have to deny them. Otherwise, deemed admitted.
need to execute an affidavit of merits. What is not required is to deny them under oath. But you still
have to deny them.
When you allege judgment, you do not need to allege whether
the judgment was rendered of court with valid jurisdiction. Rule 9: Effect of failure to plead.
Bakit? Because of disputable presumption that you under Rule
31, he who disputes it has the burden of proof. Rule 9 has good batting average in the bar. 60-70% asked in the
bar. Other topics with high batting average: Jurisdiction,
Actionable Documents Certiorari.

2017: AUSL BarOps Remedial Law Team Page 14 of 109

Section 1. Residual prerogatives one remedy to for the defendant and that is to file a motion to
Residual prerogatives is the authority of the appellate court to set aside the order of default.
dismiss the case motu proprio on the grounds provided for under
Rule 9, Section 1. (Res judicata, Litis pendencia, lack of What is the effect if the order of default is issued against the
jurisdiction over the subject matter, prescription). On this defaulted party? The defaulted party losses his personality
grounds, the appellate court may dismiss the case even without before the court. That means that he can no longer participate in
a motion. Where else, aside from these grounds, you have 3 the proceeding. But he is entitled to copies of the proceedings
more grounds under Section 3, Rule 17, when the court may even if he cannot participate in the proceedings.
dismiss the case motu proprio. Ano yun? Failure to present
evidence-in-chief, failure to appear for so long a time, failure to From the order of default if it cannot be set aside, then the court
comply with any order of the court. In addition, in summary may render a judgment. The judgment is known as the judgment
procedure the court may dismiss the case motu proprio. by default. Don’t ever confuse that with the order of default. A
remedy against a judgment by default, andaming remedies yun.
Section 2. Compulsory counterclaim All the remedies against a judgment applies thereto. Basically,
You have to invoke it, otherwise, deemed waived. Is that motion for reconsideration, new trial and appeal because this is a
absolute? No, under section 10 of Rule 11, omitted counterclaim. judgment. There can be no judgment by default without being
If you omitted a counterclaim by reason of inadvertence, preceded by an order of default.
oversight, excusable negligence, you can still avail of
amendment. Order of default first then judgment by default. You have a
remedy for the order of default and you have also remedy for
Substance of Rule 9 is found in section 3. Principle for Default. judgment by default. Yan lang.
Under the present Rule, isa nalang ang ground for default.
Failure to answer/responsive pleading within the prescriptive Exception: When a court can render a judgment by default
period. Wala na pong iba. Iisa nalang, wala ng iba. without an order of default?
Non-compliance with the modes of discovery under Rule 29,
Whether a plaintiff can be declared in default? Yes. why? Is the Section 3, paragraph c. That is the only instance when the court
plaintiff also required to file a responsive pleading? Of course, if may render a judgment by default without being preceded by an
the defendant interpose a permissive counterclaim and the order of default.
plaintiff does not it answer, therefore the plaintiff can be declare
in default relative to the permissive counterclaim. Ano yung Partial Default? Bakit partial default?
Because this is an instance when there are several parties to the
How may a party be declared in default? Never motu proprio. To case. Walang partial default if there is only one defendant or one
declare the party in default, the other party must always file a plaintiff. When there are multiple parties (defendant for
motion. And the motion to declare the party in default is a example), some answered while other do not, then you have
litigated motion. When I say litigated motion, it is a motion which partial default.
have to comply with Sections 4,5 and 6 of Rule 15 Motion. It
must be in writing. It must set for hearing. It must be served to When there is a partial default, what is the effect of that to the
the adverse party. defaulted party? It depends, if the defense put up by the
answering defendant is common to all the defendants, then it
Motion to declare the adverse party in default, is a litigated will be advantageous to all of them. But if the defense put up by
motion. That cannot be done motu proprio. The court has to wait the answering defendants, apply personally to him, then he
for the other party to file a motion to declare the other party in cannot avail/ get advantage out of that.
default. And because this is a litigated motion, it must set for
hearing. And only after the hearing, the other party can be RULE 10 Amended and Supplemental Pleadings
declared in default. Then the court issue an order of default.
Scenario 1
Order of Default should not confuse with Judgment by default.
If A files a case against B for some of money in the amount of
Ibang-iba yan. The order of default is pursuant to motion of the
Php250,000, Can A amend that to Php500,000?
party to declare the other party in default. The effect of that if so
granted is an order of default. This order of default can only be Answer: Syempre hindi. Ine-emphasized ko masyado ang
set aside in one way, that is another litigated motion, to set asidejurisdiction just like yesterday. It is a matter of jurisdiction.
the order of default.
Php250,000 with the MTC ilalagay mo doon. Refile. Pag matter of
jurisdiction, hold on to that. You can not amend that. Kasi the
Attention to the case of Banco De Oro vs. Tan Si Pek. In that case,
the SC said that there is only one remedy against the order of issue is jurisdiction.
default, and that is a motion to set aside the order of default. Scenario 2
Because in this case, the defendant filed a motion for
reconsideration of the order of default. SC said that a motion for If A files a case against B for Php250,000, B in his answer
reconsideration for an order of default is not the proper remedy interposes counterclaim for Php500,000, will the
to restore the party who default in good standing. There is only counter claim progress?

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Answer: No again, why? Under counterclaim, it must be within filing. So even if B files the answer A has not received a copy he
the jurisdiction of the court in an amount as well as in nature. Eh can still amend the complaint as a matter of right.
yung amount Php500,000 so MTC has no jurisdiction over the
Suppose he amended it as matter of right, and then and
counterclaim. Wala na yong old doctrine that the court takes
summons served to B. Who received the second summons on
cognizance up to the extent of its jurisdiction. Sa Rule 6 Section
the amended complaint. And he now served or filed the answer
7. Compulsory counterclaim. Sa last sentence, Such a
the second time around. B filed the answer. Can A who has not
counterclaim must be within the jurisdiction of the court both as
received the amended complaint still file the complain as a mater
to the amount and the nature.
or right?
Scenario 3
Answer: No. you can amend only the pleading as a matter of
If A files a case against B for Php500,000, B interposes a right only once.
counterclaim of Php250,000. Should the counter claim be
After the party received a copy of the responsive pleading,
whatever it is, kasi hindi lang naman plaintiff ang pwedeng mag-
Answer: No. Has the court has court jurisdiction over amend, pwede rin naman mag amend ang defendant, hindi
Php250,000, No. It has no jurisdiction, however, the rules say, naman limited sa plaintiff, to the defendant, co-defendant, third
dib a, yung RTC lang yon. If you have 500 it will always starts with party, pwede silang lahat even the intervenors, all these
one peso. Meaning to say, if it is within the jurisdiction of the amendments are available to all.
RTC, that will be within its jurisdiction because the complaint was
Now, after a responsive pleading has been served to the party,
Php500,000 and that counterclaim of php250000 can be taken
can he still amend? Yes, but this time he has to precede his
cognizance of.
amended or amendment with leave of court under Rule 15
But supposed the Php250,0000 counterclaim in a Php500,000 Section 9.
complaint arises from employer-employee relationship, eh di
Amendment may either be by substantial or formal. Whether it
wala rin, it must be dismissed. The nature of that is outside the
is formal or substantial, what is important is a matter of right or a
jurisdiction of the trial court.
matter of discretion.
See, nakita nyo kung gaano kaimportante ang jurisdiction. Sabi
Amendment in criminal procedure can be substantial or formal.
ko ang guide ko sa inyo, pag di nasasagot any question sa
It can also be a matter of right or a matter of discretion. Pareho
remedial try to think ang mga principles that we enunciated,
lang. What is the correlative of this in criminal procedure? Rule
pag applicable ang basic principle, i-state mo and you will be
110 Section 14 you tie it up, Amemdment or substitution and
credited for your answer because you are stating the basic
meron pa Rule 117 Motion to Quash Section 4. Amendment din
principle in remedial law.
When can you amend? Anytime you can amend but it can either
Amendmenment maybe a matter or leave of court in criminal
be a matter of right or a matter of discretion.
cases. Dito sa civil procedure, and daming pwedeng i-amends,
What do you mean an amendment as a matter of right, no need pleading, motion. Pero dito sa criminal what you can amend is
to ask for leave of court. You just amend it. The only exception the information, or complaint as the case may be. The complaint
dito is when it involves jurisdiction. Kapag involve ang as filed in court.
jurisdiction hindi ka pwede mag-amend. Jurisdiction over the
When it is a mater of right in criminal case? It is before the
subject matter is conferred by law. Even in amendments and
accused enters plea so bago arraignment and plea. It is a matter
supplemental pleadings always look into the basic principles on
of right. Thereafter, it is a matter of discretion. But there is a
jurisdiction. Hindi mo pwedeng baguhin yon, kung ano ang batas
fundamental exception which is as long as the accused will not
nandoon na yon.
be placed put in double jeopardy.
When it is matter of right? The rule provides it is a matter of right
before the party files a responsive pleading. If it is the complaint,
the plaintiff can amend before he receives the answer to Isa pa na imporante sa criminal procedure ang amendment,
complaint. He does not need to ask for a motion to amend. No whether it before plea, it is always a matter of discretion if the
more because that is a matter of right. amendment amounts to downgrading, yung downgrading sa
criminal - murder to homicide. Downgrading, it is always
A files a case against B with Regional Trial Court. Summons was
discretionary. There are rules: you file a motion, set for a hearing
served upon B on January 5. On Jan 10 B files his answer. Can A
pag downgrading, or Downgrading will even include exclusion of
is still amend the complain as a matter of right.
one of the accused from the information. Hindi yan a matter of
Answer: B already filed an answer. Yes, why? The word is right. There are requisites there, you have to file a motion that
service hindi filing. A presumed that he has not received the will be set for a hearing and you have to ask for a fiscal
copy of answer. The term in Section 2 of Rule 10, service not

2017: AUSL BarOps Remedial Law Team Page 16 of 109

pagkatapos yung private complainant must be duly informed changing certain matters in the information. It is not new. Kaya
about it. So, mabigat dito sa criminal procedure. nga be careful in criminal procedure, the accused might be
jeopardized. In other words may double jeopardy. Hindi pwede
Dito naman sa civil procedure madali lang yung amendment
yon. You will notice bakit ine- emphasized ko ang amendment.
there must be liberality in the amendment in civil cases but that
Pag sa amendment mas importante ang sa criminal procedure
does not apply in criminal cases. The concept of liberality on
than in civil procedure.
amendment does not apply in criminal procedure kasi in criminal
cases the accused might always be placed in double jeopardy RULE 11 When to File Responsive Pleadings
danger of being convicted for the second time around.
Madali lang ito. Just remember Four dates or four periods: 10,
Dapat alam mo ang civil and criminal amendments. 15, 30 and 60. Yun lang tandaan nyo. Wala naming 28 days dyan.
Amendments must conform to evidence. Allegation is not proof. Ngayon ditto 10, 15, 30, 60. Madali tandaan.
Every allegation in the pleading must be proven and how do you
Pag dating sa sa 60 Extraterritorial service of Section 15 Rule 14.
prove that, through evidence. But the opposite here is already an
60 day period yan.
evidence but there is no allegation yet. That is why your remedy:
Amendment to conform with the evidence. Halimbawa, in an Yung 30 day period, isa lang rin yan, Section 12 of Rule 14. When
action for sum of money. There was no allegation whatsoever the defendant is a foreign juridical corporation/foreign juridical
regarding demand but during trial the counsel for the plaintiff entity service of summons must be done on 3 kinds:
started to present evidence on demand letters, therefore the
plaintiff would say, the court has no jurisdiction over the issue. 1. Resident agent designated by law,
Ano yung principle that we have studied about jurisdiction:
2. Public officer designated by law,
Jurisdiction over the issue is determined by allegation in the
pleadings. 3. Any representative or agent found in the Philippines.

Rule 10 if you tie it up with on evidence you will find out that as a Pag service of summon don sa middle, public officer designated
remedy against that issue that court has no jurisdiction over such by law – 30 days.
issue. You ask for an amendment to conform to evidence.
Pag dito sa una at pangatlo ganoon parin 15 days pa rin yon. Ito
Ngayon, when a pleading is amended, what happens to the lang public officer designated by law – 30 days. Which law?
admission in those pleadings, so this is partly tying up with Philippine law NOT a foreign law.
evidence? The admissions there already become extra judicial
admissions because in rule of evidence admissions in the Halimbawa, yung case filed against BANK MILWAUKE, alam nyo
pleadings are judicial admissions and under the rule of evidence kung nasaan ang Milwauke, that is a foreign corporation, so if
judicial admissions need not be proven. Di ba kasi tinanggap na you do not find any representative or agent here, where do you
yan, di mo na kailangan i-prove. But when you amend a serve it, you serve it on the governor of the central bank, that is
complaint for example the admission in the complaint or answer the public officer in the Philippines designated by law. Now,
for that matter become now extra judicial admission and extra upon receipt of the governor of the central bank? No. Upon
judicial admission must be proven so that they are not receipt still from the governor of the central bank by the Bank of
admission unless they established. Yan ang effect. Milwauke – 30 days yon mahaba rather than the usual 15- day
There was a landmark case. Ang tagal na nitong kasong ito.
BUHAT VS. COUR OF APPEALS (265 SCRA 701, December 17, BANK OF NEW YORK – New York Insurance Company, wala kang
1996). Criminal ito. The information was for homicide. Buhat resident agent na makuha dito sa Pilipinas, you serve the
was charged for homicide. There was an amendment made from summons upon the Insurance Commissioner that is the public
homicide to murder. The issue is: Is that substantial or formal officer designated by law. Answer to the pleading is 30-day
amendment. Well pag tiningnan mo at face value definitely alam period. So tag isa lang ito yung 60 day at 30 day.
mong substantial yan di ba. Yung penalty ibang iba. Substantial Ano ang 15 day – Yung 15-day period, Any summon served when
yan. You are charged for homicide and then amended to murder. the case is covered by regular procedure. 15 days yan. Regular.
That would definitely be substantial. But in this particular case of
Buhat vs CA, The supreme court said No, that is only formal. Ano yung pangalawa. When there is an amendment and the
Bakit? Because the allegations in the information amount to amendment is a matter of right from receipt doon. 15 days don.
murder but the title was homicide. That is peculiar. Using the
And also, Third party complaint yung mga sagot doon – yon
basic principle in civil procedure that what counts are the
because that is in effect, an original complaint 15 days.
allegations in the body rather than the title. Bale wala yung
title. Tatlo lang ang 15 days. All the rest 10 days. Madali lang tandaan
ang Rule 11.
In criminal procedure, amendment must not be confused with
substitution. Amendment is different from substitution. Ano yung all the rest? Amendment when it is not a matter of
Substitution is a new charge while Amendment it is simply right answer thereto 10 days. When a complaint is filed and the
2017: AUSL BarOps Remedial Law Team Page 17 of 109
case is governed by the rules on summary procedure 10 days Halimbawa: A motion for bill of particular is denied. The rule says
yan, counterclaim 10 days, crossclaim 10 days, counter the party has a balance of the period but not less than 5 days – A
counterclaim, 10 days yan. Lahat yan 10 days. complaint was filed by Mr. A and summons was served upon B
the defendant on January 5. So Mr. B has until January 20 within
Let me emphasize one thing, Bill of particular, 10 days din yon.
which to file his answer. On January 6, instead of filing an
RULE 12 Bill of Particulars answer he files a Motion for Bill of Particulars, denied. So he has
only the balance of the period but not less than 5 days. What is
Importane pa ito. The case of Juan Ponce Enrile is a good source the balance of the period? One day lang ang na-consumed. He
for a bar question on Bill of Particulars, that is August 11, 2015. has 14 days.
Remember, that when in civil cases, a party files a motion bill of The next question is where do you count the 14 day period from?
particulars, unang una the court may either grant or deny the Ang pagkakamali ng karamihan you count it beginning with
motion for bill of particular. It has the same nature and purpose. January 20. That’s wrong, mali yon. Logic will tell you that you
What is the purpose for filing a motion of bill of particular - to can not start counting on January 20. Bakit natanggap mo na ba
give adverse party, for the other party, a chance to answer yung order, denying. You have not even received the copy of the
correctly. order. You did not even know when it was denied. You count the
14 day period from the time you receive a copy of the order.
Halimbawa yung complaint says that you borrowed money from
Very clear yan sa rule.
me in the total amount of 1 million pesos on 3 occasions. Eh ang
labo non. Ano ba, Kelan ba yon ba yung 3 occasions I borrowed a Halimbawa, the same scenario. Summons was served in January
total amount of 1 million from you. I-particularize mo. I cannot 5. B has until January 20 within which to file an answer. He files
answer this. So idedetalye mo yon. instead of an answer, a Motion for Bill of Particulars on January
19. One (1) day na lang on the balance of the period and it was
So if the motion for bill of particulars is granted – dito yung 10
Denied. He has the balance of the period but not less than five
day period na sinasabi. So if granted magfile ka ng bill of
(5) days. Where do you count the 5 day period from? Don’t
particular. Or the other way of complying with the grant of a
count it from 20, 21, 22, 23, 24, 25. Mali yon. You count it from
motion for bill of particulars, is amendment, i-amend mo yung
the time you receive a copy of the order, if you receive it
complaint. Although you may not amend the complaint proper.
February 10, start counting 11, 12, 13, 14, 15, you have until
You can file a specification of allegations. Separate pleading but
February 15. Ganoon ang pagbilang. Kumpleto and daliri pero
Masalimuot yon. The better way in actual practice i-amend mo
kulang ang bilang o mali.
ang complaint. I-detalye mo kung ano nandoon. That is, If it is
granted. Pero naman kung granted, the burden now is on with the
plaintiff now when it is granted. The plaintiff has 10 days within
Supposed it is denied, if the motion for bill of particulars is
which to file a Bill of Particulars but from receipt also of the
denied, the defendant has only the balance of the period but not
order granting the bill of particulars, syempre, the logic dictates
less than 5 days.
In other words, the NAPES doctrine, the fresh day-period rule,
RULE 13 Filing and Service of Pleadings, Judgments and Other
will not apply.
1. So this is the first instance, where the fresh day period will not
Filing and Service are two different things. Don’t confuse one for
apply, Rule 12. Because the party has given only the period but
the other. Filing is the presentation of the pleadings or
not less than 5 days.
submission of pleadings with the clerk of court. Service is
Where else is NAPES doctrine inapplicable also in: furnishing of a copy to the adverse party. Syempre yung filing
wag nang sabihin Filing mandatory ba yan. Yung service ang
2. Rule 16 Motion to Dismiss, and pinag-uusapan. Paano malalaman ng korte kung hindi mo ipapa-
3. Rule 62 Interpleader, and file. Service is mandatory yan para malaman naman nya kung
ano ang reklamo. Under Rule 13, let me discuss about three (3)
4 . Rule 64 Review of Judgment from COA and COMELEC. issues of concern:
Ito ang apat na Rules 12, 16, 62, and 64 the Napes doctrine will 1. Modes and manner
not apply because you will have the balance period but not less
than 5 days. Filing are of two 2 modes: You can file either

Tingnan nyong mabuti yung Computation of Time under Rule 22, a) Personally and
always to exclude the first day and include the last day, regarding b) By registered mail.
the balance of the period. Tingnan mo kung kelan ka
magsisimulang magbibilang.

2017: AUSL BarOps Remedial Law Team Page 18 of 109

Service: Pwede ring personal (puntahan mo kalaban mo bigyan To whom it is addressed for service? It is addressed to the sheriff
mo ng kopya) or you can send it by mail. In other words, it does for service and the sheriff will serve that on the defendant. That
not say a registered mail or ordinary mail. is why, the rule there provides as to who can serve the
Be careful in Quezon City, there is one pilot court called E-court.
This E-court will happen throughout the Philippines. a) the sheriff,

2. Completeness b) the deputy sheriff,

You received a copy of order by a registered mail, what is the c) any person authorized by the court.
rule provides, when it is considered complete:
So if you will add:
2.1 Pag Personal, no question about that, it is complete upon
Can the plaintiff serve the summons? Yes, if he is authorized by
the court.
2.2 If regular mail: 10 days
Can the Policeman serve the summons? Yes, if he authorized by
2.3 If registered mail: 5 days from receipt of the first registry the court. But if he is not authorized, ito lang dalawang ito the
notice deputy sheriff and sheriff himself.

3. Proof Is that followed to the letter? Kasi Sa court may tinatawag na

process server, may tinatawag na sheriff, may tinatawag na
How do you prove it? Pag Personal, stamp. Pag mail – registry
bayleaf, mga ganyan, but this cannot be served through a simple
notice that it has been received and registry receipt that has
process server? The rule is clear about the matter. It must be
been sent. So dalawa yon. Kukunin mo registry notice for proving
done by the sheriff. But if the process server is duly authorized
it has been received and registry receipt that has been sent.
by the court, then the service of summons is valid.
Yung dalawang yan ay sina-submit sa court.

Judges are very much concern, and this is very common in court,
some lawyers will say your honor for the past meetings Modes of manner in service summons
complainant or plaintiff has not appeared. I moved for the
What are the modes of manner in service of summons or
dismissal of this case for failure to prosecute. Titingnan ng court,
counsel there is no notice, no notice of the receipt of the order –
yun ang malimit ngayon no receipt of the order. Will give him The first is Service on person of defendant huwag nyo nang
another chance. This is an everyday occurrence in court. Clerk of sabihin personal as not to confuse it with service of pleadings in
court, let’s reset this. We are now in September, let’s reset this. Rule 13. Personal service pa doon. Pero pagdating dito sa
The clerk of court will go over it. Your honor can we reset that Summons sa Section 6, already said service on person of the
next week or week after next? Let us see. No available date. defendant. Parang madali ma-differeniate doon sa service of
When is the next setting? January of next year, that is normal in pleading in Rule 13.
courts now. Justice delayed, justice denied.
Pangalawa: Substituted service of summons.

Pangatlo: Service thru publication.

RULE 14 Summons
Pang apat: Under Section 15, extra territorial service of
Summons is important it is the way by which the court acquires summons.
jurisdiction over the person of the defendant. My first warning
to you is summons is always spelled with s and that is always Under extraterritorial service, there are three (3) ways under
singular. The plural is summonses with es. Summons is; section 15:
summonses are.
1. Personal
What is a summons? A Summons is a directive or an order or
2. By Publication
coming from the clerk of court for the court to acquire
jurisdiction. Ito ang purpose ng summons for the court to acquire 3. By any other mode authorized by the court.
jurisdiction of the person of the defendant.
Supposed asked in the bar: Is there any service of summons by
Is there an alias summons? Yes. An alias summons is any registered mail? There is none.
summons other than the first summons.
Can service by registered mail be valid? Yes, if it will fall under
Can you ask for it? Yes, how, by motion, no need, simply apply section 15, any other mode authorized by the court. But take
with the clerk of court and valid ground, the clerk of court will note this any other mode authorized by the court falls under
issue an alias summons.

2017: AUSL BarOps Remedial Law Team Page 19 of 109

extraterritorial service. When the defendant is WITHIN the 2. Managing partner,
country, you can not avail of that.
3. General manager,
Incidentally, may circular ang Supreme Court matagal na ito 2007
4. Corporate secretary,
pa yata ito, we can add another one extraterritorial service
through the Department of Foreign Affairs. 5. Treasurer, or
How does it work? The court will communicate with the 6. In-house counsel.
Department of Foreign Affairs who in turn will communicate with
court, hindi ito directly, sa court in the foreign country and ask In these four (4) modes of summons, the most important for
the court to serve it to particular individual within its territorial purposes of the bar is substituted service. Kung magtatanong sa
jurisdiction. But that is how it works. Maganda sana ito pero bar tungkol sa service of summons, it is substituted service, and
bihirang gamitin dito sa Pilipinas, kasi pupunta ka sa DFA hindi ka It is a must for you to read the doctrine held in MANOTOC v.
naman papansinin, di ba. Kaya we rely on the court. This was COURT OF APPEALS, that is the land mark case on substituted
intended to facilitate the service of summons of people who are service. Basahin nyo yon. I strongly recommend for you to
temporarily outside of the country. Pero pupunta ka sa DFA, refresh your memory on the doctrine held on Manotoc v. Court
papasinin ka ba doon, di ka papansinin. Sino ka ba? Si of Appeal. Ito yung kay Imee Marcos Manotoc. Ano yung
ambassador ka? Hindi. So it is very difficult. So you just go doctrine dito. The following are the requisites for a valid
through the process in the court. substituted service of summons.

Under Rule 14 there are specific kinds of individuals there, like Una. It must be established that earnest efforts to serve the
for example: summons on the person of the defendant. In other words,
before you can avail of the substituted service, you have to
Section 9. Prisoners – When a Prisoner is a defendant in a civil establish that there were efforts to serve the summons on the
case. Pwede ba yon, siguro. Dadami ito. Kasi pwede yung mga person of the defendant. There being efforts which did not
civil cases against drug lords na nakakulong. materialize, you have now to serve it on either the person’s
residing in the residence of the defendant or the person in-
So how is summons served on this prisoner? It is served upon
charge of the office of the defendant.
the prisoner. Do not misread section 9. It is not served upon the
warden but it is served to the prisoner through the warden. Nakita mo yung distinction dito nauna muna yung residence
Aside from the sheriff, deputy sheriff, this warden falls under any pagdating doon sa pleadings which is part of personal part of
other person authorized by the court. pleadings nauna yung office because the presumption there, is
there is already a counsel. Dito summons ito, there is no counsel
So, service on the warden is invalid because the service upon
yet. So, you will start with the residence. Now doon sa
prisoner must be on the prisoner through the warden.
residence serve it not on anyone but on someone residing there
If the defendant is a minor or incompetent, you can serve that, on the residence of the defendant.
ito pwede sa parent, if no parents, guardian, if no guardian, you
So, if he is the maid, he is residing there unless he is pumumunta-
still ask from the court an appointment ad litem.
punta lang doon. Sa Pilipinas katulong natin parte ng pamilya.
How about juridical entities – juridical entities, you should But aside from being a resident at the residence of the defendant
distinguish them into two (2) the public the private? As to public he must be of age, under Manotoc doctrine, age there is legal
juridical entity, then serve it on the head of public juridical entity, age, he must be at least 18 years old. So, si sheriff dapat
if in the city, the city mayor, if it is municipality, the municipal tanungin ilang tao ka na ba. Di na magtatanong si sheriff kung sa
mayor, if it is the province, the governor. itsura ng tao kwan na eh talagang tatanungin mo pa kung wala
ng ngipin. Hindi na. If nagda doubt ka, tanungin, aside from age
But if is a private juridical entity, make a distinction, whether it is
must be of discretion. Ano ba discretion doon. Discretion, there
domestic or foreign. We discussed already Foreign, Private
is maturity. Who assesses if the person is in discretion? Sya
entity, Section 12, yung tatlo: una resident agent, pangalawa
mismo…yung tumambang sa harapan mo sa bahay. Hindi mo
public officer designated by law, pangatlo any representative or
alam kung ikaw ang tinitingnan, naglalaway. Syempre, Nasa sa
agent found in the Philippines.
iyo na yan. In other words, What counts in the validity of
Pag private domestic juridical entities, ewan ko ba kung bakit summon is the return. Very important yon. The sheriff’s returns
hanggang ngayon jurisprudence is still hold on to VILLAROSA yun ang magpre-prevail.
DOCTRINE hanggang ngayon, the enumeration therein is
Pag doon naman sa office pareho rin. But the one to whom you
exclusive and limited you can only validly serve summons to a
serve the summons at the office of the defendant mmust be
domestic juridical entiry to six (6) individual enumerated therein.
incharge of the office. So pagpunta mo doon halimbawa
Memorize that, madali lang naman. Sino ba mga boss:
pagkatok mo may nakita ka sa likod ng pintuan na nandoon
1. President, pangalan, kukuyakoy pa or nakataas pa ang paa, ano yan
summons po, akina, tinuktok pa, pumirma, and is so happens it is
2017: AUSL BarOps Remedial Law Team Page 20 of 109
the janitor. He is not in charge of the office. He is incharge of the Ano doctrine dito: There was no valid service of summons upon
garbage of the office. Ganoon din security guard, he is in-charge Mrs. Valmonte because Mrs. Valmonte is outside the country. It
of the security and of the building but not in-charge of the office. should be extraterritorial. In extraterritorial service, wala
yung secretary? Yes, the secretary is in charge of the office. namang substituted service of summons. Hanggang nagyon,
nandyan pa yan Section 15.
What is very important when you get into the practice? Look
into the sheriff returns. Practical ito. That will prevail. Kasi dapat Yung sa publication, yung Sections 14 and 16 as of now, where
doon sundin ang Manotoc there must an earnest efforts of the whereabouts are unknown or the identity is unknown or the
serving it. At ano ang Concept of earnest effort? There must be defendant is temporarily outside the country.
an earnest effort to serve it in the person of the defendant, you
Is that the only way by which the court could acquire jurisdiction
tried to serve it for at least three times, Two of which must of
over the person of the defendant?
the same day. This is a Manotoc doctrine. Pag di yon sinunod,
invalid service of summons. Kaya ang buhay mo ay nakasalalay sa No, the last section of Rule 14, provides the other way which the
sheriff. court could acquire jurisdiction over the person of the defendant
and this is voluntary apperance.
Take note that in the extraterritorial service of summons, walang
substituted service, napansin nyo ba, under Section 15 ano yon The prevailing doctrine now under voluntary appearance is:
personal, publication, any other mode authorized by the court. MILLENNIUM INDUSTRIAL CORPORATION VS. TAN. So that
Walang substituted service. voluntary appearance to be valid way by which the court acquire
jurisdiction over the person of the defendant, the appearance,
If the defendant is outside the country you can avail of this but
the submission must be unequivocal and categorical. So, when
be sure not by substituted service. But my point here bakit wala
you go to court and enter special appearance precisely for the
ang substituted service kasi it is easily be controverted and
purpose is to question the validity of the service of summons
chances are it will be invalid. Or the best way, for purpose of
that is not voluntary appearance.
outside the country service, is by publication and any other mode
authorized by the court. So when there is voluntary appearance? Example, when you
asked from the court an affirmative relief. Halimbawa: Motion
This is common in cases of declaration of nullity of marriage.
for extension for time to file an answer. That is a voluntary
Most of the defendants are outside of the country. Under Rule
appearance. Motion to set aside an order of default. But if you
13, if summons is through publication then the finality of the
are questioning the jurisdiction of the court even if you raised
judgment must also be through publication. When you received
other issues other than the lack of jurisdiction of the court, there
the judgment it must be published otherwise you will not get a
is no voluntary appearance.
Certificate of Finality. So that, the finality will begin to run.

There is no substituted service to corporation. That is the case of

BAR MATTER : Service of Pleadings thru private
DOLE PHILIPINES VS. JUDGE QUILALA. The easiest way to serve
courier – not a valid service;
summons on a corporation is corporate in-house counsel. These
: Motions
big corporation they have in-house counsel. Like San Miguel, : Motion to Dismiss – Res Judicata;
every line of law, there is in-house counsel. Ibigay mo lang sa Conclusiveness of Judgment
secretary yan tatakan na yan and that is service of summons to
in-house counsel. To look for the President, Managing partner,
general manager is very very hard. In real estate business, big Good for your reading, this is the case of Palileo vs Planters
corporations, napakahirap, go to the in-house counsel. Development Bank. This is October 2014, 738 SCRA (738 SCRA 1,
October 8, 2014). Now, what is this all about - let us discuss the
VALMONTE CASE. That extraterritorial service of summons. Mr. doctrine actually is not a doctrine. In this particular case, the
and Mrs. Valmonte are residents of Seattle, Washington. A case pleading was served through private service courier, (yung) LBC. It
of partition, hindi ma-serve and Summons masyado. Sabi ng so happened that at that time in Cotabato there was still no LBC.
plaintiff, Mr. Valmote is a lawyer. He practices his profession. The sender realizing that it could not be delivered within the
Pagdating sa Manila ni Atty. Valmote, sabi ni sheriff eto na po required period, followed it up with another service by registered
Atty. ang summonses sa inyo at saka sa Mrs. nyo. Si Atty. mail. The service by registered mail, however, was one day late
Valmote kinuha, pinirmahan, I received - so personal service. Ito and when this reached the SC, among others, the issue was that
pa po ang kay Mrs. Valmote, sabi ni Atty. Valmote, I cannot the service of pleading by private courier a valid one?
receive that, I am not authorized to receive that. Ano ginawa ng
sheriff? Tendering it. Because personal service or Service on the The Supreme Court in this particular case was very careful in its
defendant is not only giving it if he refuses tender it, iiwan mo statement; I think it was thru Justice Del Castillo, saying that
doon and that is equivalent to personal service. Sa report nya sa service of pleadings by private courier is NOT provided for in the
return nya that there was personal service on the defendants. Rules of Court. It does not say that it is allowed neither does it say
that it is prohibited. It simply says that it is not provided for in the
Rules of Court so the consequence of this hindi mo makikita ung

2017: AUSL BarOps Remedial Law Team Page 21 of 109

rationalization in the case of Palileo vs planters Development Bank of pleadings but pleadings are not kind of motions because when
kung gusto mo makita ang rationalization you look at the footnote you file a pleading you are asking for a general relief as against a
and under the footnote you are referred to another case, the case motion where you are praying for a particular relief.
of Heirs of Numeriano Miranda vs Miranda (G.R. No. 179638, July
Motions are of two kinds. It can either be a litigious motion or a
8, 2013, 700 SCRA 746) which was decided by the same ponente
non-litigious motion, also called litigated or non-litigated. To be a
one year ago, 2013, kung bakit prohibited, nilagay dun not allowed
valid litigated motion it has to comply with Sections 4, 5, and 6 of
na ung service by courier, because you cannot determine the
Rule 15. Now non-litigated motions do not have to comply with
prescriptive period. Because in the registered service the rule is
Sections 4, 5, and 6. Ordinarily, these non-litigious motions are
very clear that the counting of period is from the time that you
oral motions. This can be done orally but there are certain written
send it thru the postal service, ung stamp dun that is the date of
motions that are non-litigious. Example: motion for extension of
posting, that is the date of filing. But in private couriers there is no
time to file pleading or motion for cancellation of date of trial or
provision as to when (like in this particular case when at the time
date of presentation of evidence but you always have to serve
there was no LBC in Cotabato) so you cannot determine kung
copies of these to adverse party but you don’t set that for hearing.
kailan un and the service by registered mail was simply an
admission, according to the Supreme Court, that service by the As a general rule when you file a motion with the Court of Appeals
private courier depends on whether that is received on time. If it and the Supreme Court, never, never set it for hearing because
is received on time well and good, no question about it but you hearing before these appellate courts, especially the Supreme
cannot say, since there is no provision in the Rule, that upon Court, is not a matter of right. So you never set for hearing any
delivery of that pleading with LBC that is the date it is posted. So motion you filed with Supreme Court or Court of Appeals because
you check that out, Palileo vs Planters Development Bank. it is not a matter of right, it is a matter of discretion on their part.
And let me connect this with Judicial Affidavit Rule, under the Now what are Sections 4, 5, and 6 which are the requirements of
Judicial Affidavit Rule it is specifically provided that service of a litigated motion? Section 4 tells us that a litigated motion must
Judicial Affidavit to the adverse party can be done by private be in writing, and the 2nd paragraph thereof tells us that you have
service couriers. Remember that last year there was a question on to comply with the 3-day notice rule. The 3–day notice rule means
Judicial Affidavit Rule. Tatlo lang ung question sa evidence. And that the adverse party must have received a copy three days
one of that was Judicial Affidavit. Can u imagine tatlong questions before the scheduled hearing. So that even if you send it within
lang sa evidence last year’s bar exam and one of that was Judicial that period if the adverse party was unable to receive it three days
Affidavit Rule and also what I have forgotten...ung Section 11, the before the scheduled hearing, there is non-compliance of section
priority of personal than any other mode kasi inaabuso ang 4. The point here is not the time of sending but the time of receipt
registered service by lawyers. The counsel for the plaintiff has his of the copy of your motion. Dapat matanggap ng kabilang partido
office on the 42nd floor of Pacific Bldg. in Makati, yung kalaban three days before the scheduled hearing and under the same Rule
nyang opisina was on the 6th floor of the same Bldg. how would he the regular hearing day on motion is a Friday. Regular yan
serve pleading by registered mail. Because they are buying time although that’s not mandatory. Assuming that the court follows
kaya... nilagay ung Section 11 of Rule 13 that when you avail of the regular day for the motion which is a Friday, you must cause
service of pleadings other than personal service, then you have to that the pleading you served on the adverse party must have been
state the reason why. Hindi naman sinabi na state a valid reason. received on or not later than Tuesday. When u get to be practicing
Magsabi ka lang ng reason, ako ginagawa ko lagi by reason of lawyers before you file a motion and set it for hearing call up the
convenience and practicality..kung minsan sinsabi ko because of clerk of court, tanungin nyo muna what is your day on hearing on
the horrendous traffic situation in Metro Manila (judicial notice motion...Ung point of reference three days before the scheduled
yan...). Kahit lakarin mo un..anyway just give the reason. hearing. However, take note of Section 5, eto ung 10-day setting
rule, don’t confuse that with the 3-day notice rule. These 2 rules
And also let me point out to you that substituted service of
must both be complied with with regard to motions: 3-day notice
pleadings is different from substituted service of summons. Ang
rule, 10-day setting rule. And you count the 3-day notice rule
layo ng distinction nyan. Substituted service of pleading must be
based on the setting rule. That it must be received by the adverse
given or submitted to the clerk of court. When you serve it on or
party three days at least before you set it for hearing. So if u set it
at residence or office of the adverse party it is still personal pag
on hearing, as I said, on a Friday, it must be received not later than
dating sa pleadings.
Tuesday. Anyway, yung 10-day setting rule, when you file your
Now regarding judgements, judgment cannot be served by motion doon sa baba you have to comply with the 10-day setting
substituted service. So ano ang gagawin mo..move for leave of rule, so bibilangin mo, that when you file it, you have to set it
court to have it published..by publication. within a 10-day period from the time you file it. Not more than
that. So suppose you file your motion on a Monday, so...ung 10-
Rule 15
day setting dapat it must be set thereon. Kaya ko-computin nyo
Let’s move on now to Rule 15. Just a few words about Rule 15, the ng mabuti baka ma-technical kayo dun sa 10-day setting rule.
title of Rule 15 is motions. Are motions pleadings? YES, they are
In case of conflict between the 10-day setting rule and the 3-day
kinds of pleadings. Are pleadings motions? NO. Motions are kinds
notice rule, which should prevail over which? First, before we

2017: AUSL BarOps Remedial Law Team Page 22 of 109

answer that, can there be a possible conflict between the two? criminal cases, attach already your demurrer. So yan ang impact,
Definitely there is. There can be a conflict. Sometimes you cannot the result of Section 9, Rule 15.
comply with both. The requirements in the Rules is that you
Rule 16 Motion to Dismiss.
comply with both these periods..pero mangyayari there are
situations when definitely you cannot comply with these rules. I By this time you have memorized the grounds...that when you
am a practicing lawyer here in Manila, my case is in Davao City. read Section 1 of Rule 16, read that with Section 3 or Rule 117,
Alangan naman pumunta ako ng Davao para i-file ko personally, kasi ang bawat isa dyan may equivalent sa Section 3 of Rule 117.
motion lang yan. Pupunta ako dun pag naka set ko na ung motion Ano ung Rule 117, motion to quash. So kita nyo civil and criminal
for hearing...If you file it by mail, if you are going to comply with pinagsasama sama natin...
the 10-day setting rule, chances are you will not be able to comply
with the 3-day notice rule or if you are going to comply with the 1st question, there are 10 grounds in the motion to dismiss under
3-day notice rule chances are you cannot comply with the 10-day Rule 16. There are only 9 grounds in the motion to quash, kung
setting rule. Pagpadala mo pa ng registered mail darating un dun may equivalent yan may isang nawawala. Alin ba ang nawawala
15 days after...this Rule 15 is still very active and very much dyan, syempre alam na natin yun: venue. Because venue is
applicable. So in case of conflict which should prevail over which? jurisdictional in criminal cases. Pero bawat isa nyan ay may
The 3-day notice rule must prevail over the 10-day setting rule. equivalent..that the facts charged does not constitute an offense,
What is the rationale because the 10-day setting rule affects only that the allegations in the pleading asserts no cause of action.
the calendar of the court while the 3-day notice rule maybe Duplicitous offenses, that one information must consist only one
prejudicial to the rights of the adverse party. So you must comply charge, that there is an action pending between the same parties
with the 3-day notice rule in case of conflict between the 10-day of the same cause, paragraph E of Section 1 of Rule 16. So may
setting and 3-day notice rule. equivalent, that the cause of action has been barred by prior
judgment or by the statute of limitation paragraph F, last ground
Section 8, omnibus motion rule. The word suggests its meaning. sa motion to quash, that the accused have been convicted,
When your file a motion, allege all the available grounds that acquitted or the case against him has been dismissed without his
which is not alleged is deemed waived, in your motion. A very express consent. So res judicata ang equivalent sa criminal
good example of this would be Rule 37, yung motion for new trial. procedure: double jeopardy. 1 and 2 very clear un..the court trying
When you file ung motion for new trial, allege all available grounds the case has no jurisdiction over the subject matter of the offense,
if you do not avail any of those grounds available, you are that the court has no jurisdiction over the object of the action, that
considered to have waived it, that is why under Rule 37 on new the court has no jurisdiction over the person of the defendant,
trial, you ask: can you file a second motion for a new trial? The that the court trying the case has no jurisdiction over the person
answer must be distinguished. If your 1st motion for new trial is of the accused.
newly discovered evidence you cannot file a 2nd motion for new
trial. Why? Because the grounds are available already, fraud, Number 3 that venue is improperly laid, wala to. That the plaintiff
accident, mistake, excusable negligence. But if your 1st motion for has no legal personality, paragraph E that there is a pending action
new trial is grounded on either fraud, accident, mistake, excusable between the same parties for the same cause that the cause of
negligence, you can still file a 2nd motion for new trial because your action has been barred by prior judgment or the statute of
2nd ground which is newly discovered evidence is not available. So limitations, that the claim or demand asserted has been paid,
you cannot include that in an omnibus motion pero pag nag file ka abandoned, waived, or extinguished. That the claim is
ng newly discovered evidence there must be Fraud, Accident, unenforceable under the statute of frauds, that condition
Mistake, Excusable negligence that is why pursuant or in relation precedent have not been complied with.
to the omnibus motion rule, you are not allowed to file a 2nd
So you noticed that we have taken up almost all the grounds. Ung
motion for new trial under that instance.
1 and 2 jurisdiction, we took that up yesterday, jurisdiction over
Finally, (Section) 9, eto yung leave of court. Whenever you ask for the parties, jurisdiction over the subject matter. Tapos na natin
leave of court you already have to attach the appropriate pleading yan.
or the necessary pleading in your leave of court. Halimbawa
Ung number 3, that venue is improperly laid, we took that up
itanong sainyo, state the instances where leave of court is
already in Rule 4. That the plaintiff has no legal personality to sue
necessary. Naku ang dami nun. Maguumpisa ka sa Rule 6 diba, ung
we took that up already in Rule 3.
third party complain, 4th party complaint, yan kailangan leave of
court, intervention, depositions, kailangan mo ng leave of court. Ung 5 that there is another action pending between the same
Demurrer in criminal cases, kailangan ng leave of court. What does parties of the same cause, litis pendentia, we took that up already
Section 9, may parenthesis dyan may letter (n), ibig sabhin nun in Rule 2, one suit for a single cause of action. So nandyan na lahat.
bago yan. And I told you about this. This somehow amends Section
23 of Rule 119, demurre to evidence, nakalagay dun maglagay ka Etong susunod hindi pa. That the cause of action has been barred
muna ng file of motion to leave and if granted, within a period of by prior judgment or by statute of limitations. Hindi pa natin
5 days , you file your demurrer to evidence. Hindi na yan. When nakuha yan because the provision on res judicata is found in
you file your motion for leave to file a demurrer to evidence in Section 47 of Rule 39.

2017: AUSL BarOps Remedial Law Team Page 23 of 109

There are 2 forms of res judicata, under that Section 47. 2nd case is the property located in Caloocan, there is no identity of
subject matter. So res judicata will not apply.
The 1st kind is bar by prior judgment or estoppel by judgment.
Then the 2nd kind (last paragraph) is conclusiveness of judgment. Identity of cause of action – ganun din absolute. If it is recovery
Do you know the distinction between conclusiveness of judgment then ung pangalawa ay annulment then there is no identity of
and bar by prior judgment? You look at the requirements, by this cause of action. But there can be still another form of res judicata,
time, master nyo na ung requirements ng res judicata. Ano ung otherwise known as conclusiveness of judgment if there is no
fundamental requirement, kailangan sa res judicata, as bar by identity of cause of action.
prior judgment or estoppel by prior judgment.
When we study Rule 70 much later on, in one case there was an
The 1st requirement is there must be a final judgment, 2nd unlawful detainer ---CGR Corporation vs Treyes Jr. (522 SCRA 765,
requirement it must be rendered by a court of competent April 27, 2007), pero dun yan sa unlawful detainer pinaguusapan.
jurisdiction, 3rd requirement it must be a judgment on the merits Nag file ng forcible entry pagkatapos ng forcible entry ni ransack
and 4th requirement there must be identity of cause of action, ung fish pond and everything. Finile-an immediately ng forcible
subject matter and parties. That should be in your fingertips by entry. After filing the case of forcible of entry, nag file ng damages
this time. These are the 4 fundamental requirements for Res with the RTC. Then, the adverse party filed a motion to dismiss the
Judicata. Tanggalin mo diyan ang isa, which is identity ang isa RTC case saying that this is litis pendentia. The Supreme Court held
which is identity of cause of action, that is conclusiveness of that there is no litis pendentia there because there is no identity
judgment. So lahat ng requirement except identity of cause of of cause of action. Kasi in unlawful detainer, for one, walang
action, it will become conclusiveness of judgment. Don’t confuse damages, the damages referred to there is only unpaid rentals. Eto
conclusiveness of judgment with the principle of stare decisis. these are actual damages, so walang litis pendetia. Could there be
possible conclusiveness of judgment? YES. Again, there are 2 kinds
Isa isahin natin. That there must be a final judgment. The word
of res judicata: 1) Bar by prior judgment – ung lahat ng
final judgment there means executory judgment, not just a final
requirements na sinabi ko dapat nandun, walang mawawala. 2)
judgment because a final judgment is still remediable by new trial,
Pero kung walang identity of cause of action it is still res judicata
reconsideration or appeal. So ang ibig sabihin dito ay a judgment
but another form of res judicata which is conclusiveness of
which has been entered, executory.
judgment. I am illustrating it kasi in the reverse e, unlawful
Pangalawa, it must be a judgment on the merits. What does it detainer. Hanap tayo ng example na direct. Settlement of estate.
mean judgment on the merits? All the parties were given the Mayroong will, ung decedent may will, the 1st step in the
opportunities to present their side. It does not mean that there settlement of estate is probate of a will, kung may will and in the
should be a trial because there are several kinds of judgments that probate of the will, the probate court exercises limited
do not call for trial. We have studied some. Judgment by default, jurisdiction. It has only to decide on the authenticity and due
it does not call for trial. Judgment by compromise, it does not call execution of the will. Halimbawa, the parties involved in the case
for trial. Rule 34 judgment on pleading, Rule 35, summary submit for resolution by the probate court the ownership of the
judgment. Now these kinds of judgment the parties were given properties belonging to the estate and the court resolves the issue
the opportunity to present their positions and that is a judgment of ownership in that probate court, kasi sinumbit nila, is the issue
on the merits. It is not mandatory that there should be actual of ownership here res judicata? YES, it is res judicata but in the
presentation of evidence during the trial. So it must be a judgment form of conclusiveness of judgment. Settlement of estate
on the merit. pinaguusapna natin hidni unlawful detainer. Tinanggal ko na nga
ung unlawful detainer. Dun sa unlawful detainer di un res judicata
And of course this judgment must be rendered by a court of diba kasi there is a specific provision is section 16 of Rule 70 that
competent jurisdiction. Why again? Because, you go to the basic when the issue of ownership is raised in the pleading, the court is
principle on jurisdiction: any judgment, decision, final order, bound to resolve the issue of ownership only to resolve the issue
rendered by a court without jurisdiction is null and void. of possession kaya nga the issue of ownership there is not res
judicata kaya nga sabi ko ibahin ko ung example kasi nagbibigay
Last requirement – identity of 3 things – identity of subject matter,
ako ng example ng conclusiveness of judgment in the reverse kaya
identity of cause of action, identity of parties. The identity of cause
pinaandar ko...eto res judicata un but not res judicata as barred
of action – absolute. But identity of parties is not absolute, it is
by prior judgment but conclusiveness of judgment. Ibig sabihin
relative. Identity of subject matter - absolute.
halimbawa 10 yrs after nagkaroon ng issue among the heirs, this
Identity of parties. If A files a case against B, for recovery of a property X which has been resolved by the probate court as
parcel of land. Judgment was rendered in favour of A. 10 yrs after, belonging to Mr. Y is brought again in another court to be
X files a case against Y for recovery of the same parcel of land and resolved, can the adverse party say that is already res judicata?
it happens that X and Y are the children of A and B, there is no YES. Res Judicata as far as conclusiveness of judgment is
absolute identity of parties but there is identity of interest. Will concerned, only on that particular aspect. Halimbawa may iba
res judicata apply? Yes, res judicata will apply. pang aspect, the unrecovered fruits from the property that is not
res judicata because this is conclusiveness of judgment. Ang res
But as to the subject matter, it is absolute. If what you seek to judicata total yan, ang buong kaso, ang lahat ng nadiscuss dun,
recover in the first place is the property located in Makati and the
2017: AUSL BarOps Remedial Law Team Page 24 of 109
hindi na ulit madiscuss. Yan ang barred by prior judgment or exceptions tingnan nyo, who are the parties involved. If the party
estoppel by judgment. is the government, walang Barangay conciliation proceeding. If
the party is a corporation, walang Barangay conciliation
Regarding Boston Equity Resources Inc. vs Spouse Toledo, check
proceeding. If the party is a non-resident of the same city or
that out 2014-2015 decision, estoppel din kasi to but jurisdictional
municipality then there is no Barangay conciliation proceeding.
estoppel. What is the doctrine there? The doctrine there is that
Ano ung exception to the exceptions: even if they belong or they
jurisdictional estoppel refers to lack of jurisdiction over the subject
reside in the same city or municipality if the same is adjacent to or
matter. Never lack of jurisdiction over the person. This is taken
if the Barangay which they reside in are adjacent to each other.
from Tijam vs Sibonghanoy (23 SCRA 29, April 15, 1968) pero ang
Example in E. Rodriguez, the other side is Manila and the other is
latest is Boston Equity Resources vs Court of Appeals and Spouses
Quezon City. So if you live in Barangays adjacent to each other but
they belong to different cities, kailangan pa din ng Barangay
Paragraph F, Section 1 of Rule 16, that the cause of action has conciliation proceeding. It is an exception to the exception. So
been barred by prior judgment or by the statute of limitations. these are instances of Barangay conciliation proceedings. I
Pareho yan sa double jeopardy kaya nga ang tawag ay double mentioned to you already na pagdating dito hindi tinatanggap,
jeopardy kasi may 1st jeopardy. Yung 1st jeopardy that is what res pinagbabawal ang abugado. Unless you are the person involved in
judicata is all about. Di mo na ulit ihahabla to kasi nahabla mo na the case. If you avail of provisional remedies, hindi kailangan ang
sya o yan ay natapos na ng korte. Kaya yan ay double jeopardy Barangay conciliation proceedings. Then, under the case of
because there is already 1st jeopardy and that 1st jeopardy requires Peregrina vs Panis (133 SCRA 72, October 31, 1984). In criminal
this res judicata in civil cases only in another light. Syempre cases, there is no Barangay conciliation proceeding proper. Not all
criminal court yan eto civil court eto. That there was a final criminal cases, depending on the penalty, mga light offenses,
judgment. Yes..what is that final judgment, in criminal cases kasi warrantless arrest, hindi kailangan ang Barangay Conciliation
there are only two principal kinds of judgment: judgment of proceeding. Yan ang exceptions, juts go over the exceptions.
conviction and judgment of acquittal. Sa civil case, there are
Exhaustion of administrative remedies, as a condition precedent.
various. Sa criminal case, walang iba. Ung iba dyan is not a
We discussed that already under jurisdiction on quasi-judicial
judgment but order of dismissal, you may also call it decision but
bodies on what is this regarding primary jurisdiction. Ano naman
pag dating ng judgment sa criminal case either conviction or
etong requirement ng earnest efforts...when the case is between
acquittal. Kaya nga sa last paragraph ng Rule 113 that the accused
members of the family. Sino ba etong members of the family...kasi
has been acquitted, convicted or the case against him has been
dito sa Pilipinas we have extended families. That is not the concept
dismissed without his express consent. Tingnan nyo acquitted,
here. But under the rule, this earnest efforts refer only in the
convicted, dalawa lang na klase. And the requirements there of
collateral lines up to brothers and sisters only. Cousins are no
the 1st jeopardy is the same requirement in res judicata. Dapat
longer included there. On the vertical lines, walang limitation. So
perfectin nyo dito ung requirement ng res judicata.
great great grandfather having a case against the great great
That the claim or demand has been paid, waived, abandoned, or granddaughter. The most difficult cases to handle are between
otherwise extinguished. Just go back to your obligations and and among family members...now how do you go about it para
contracts. When is your obligation and contract extinguished? Ang hindi madismiss on prematurity? You have to allege it. Kapag nag
dami dami nun. Payment is extinguishment, novation is file ka ng case against a member of the family, in your pleading,
extinguishment.. has been that paid or abandoned or otherwise you have to allege earnest efforts. Pag hindi mo ina-allege yan, the
extinguished. Unenforceability under the statute of frauds and court does not acquire jurisdiction over such issue and therefore,
also in reference to civil code on the statute of frauds. it can even be brought for lack of that as a ground for dismissal
not on the ground of lack of jurisdiction but on the ground of
And let me discuss the last one there, condition precedent. This is prematurity. Some of these grounds when availed of will call for
basically procedural. There are three condition precedent. Now, it the final or absolute or end of the case. Like if it is lack of
is only prematurity no longer jurisdictional. What are these three jurisdiction, res judicata, but some allow would allow refilling of
conditions precedent, 1) exhaustion of administrative remedies; the case.
2) earnest efforts when the case is between members of the same
family and 3) Barangay Conciliation proceedings. You know very And when are you suppose to file the motion to dismiss under Rule
well that what used to be applicable here was PD1508. It has been 16? The motion to dismiss must be filed, as a general rule, before
repealed already but the provisions therein had been integrated you file your answer. Can you still file a motion to dismiss after you
or incorporated in the Local Government Code on the chapter on have filed your answer? YES. Depending on your ground.
Barangay. Kaya nga etong Barangay conciliation proceeding is Remember we even said that if it is jurisdictional you can raise it
mandatory pursuant to the Local Government Code. And anytime even on appeal but other grounds there during lang or
tatandaan nyo dito are the exceptions. before answer.

General rule: every case before it is filed with the court must first Under the present rule now, the court cannot defer a motion to
undergo Barangay conciliation proceeding and emphasize the dismiss. The court must either grant or deny it. Wala ng third
exceptions. Madami, para hindi ka malito sa pag alaala ng option. Only 2 options of court. There is no longer deferral of the

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resolution. Pinagbawal na yan under the rules. So these are the First remedy available to plaintiff as I said is Rule 17. Look at
more important areas under Rule 16. section 1 of rule 17, ano yang remedy na yan. Notice. Notice lang,
hindi nga motion. Mr. A files a case against Mr. B, then he realized
Let us go to rule 17. Rule 17 is the 1st remedy by the plaintiff. Even
na hindi dapat pala sya nag file ng complaint against B and so he
we go to that I will give you a set up of the entire remedial law
files a notice with the court. Notice to Dismiss. On what ground?
para d kayo mahirapan. Sabi ko on the start, yesterday, remedial
NO GROUNDS. Nakita nyo, Section 1 of Rule 17, walang grounds.
law is all about remedies. So titingan nyo para meron kayong
Notice lang bakit di kailangan ng ground, kasi walang
overview of the entire remedial law, what are the remedies
mapprejudice, ikaw ang nag file ng docket fee, ikaw ang malulugi.
available under the rules. As far as the defendant is concerned,
So u can think of 1000 and 1 grounds basta you file a notice of
the remedies are as follows:
dismissal of action. ....no ground. Ang importante sa Section 1
1. Rule 16, Motion to Dismiss– 1 remedy; which you have to consider is the effectivity of the notice. When
does the notice take effect? It is mandated there that the notice
2. Followed by demurrer to evidence - Rule 33; of dismissal takes effect upon the CONFIRMATION OF THE COURT
and when the court confirms that notice, it must issue an order of
3. And after that, follow it will motion for reconsideration confirmation. Yan ang bago sa Section 1 of Rule 17.
or motion for new trial under Rule 37
If you are asked, what is an order of confirmation? The answer
4. Then followed by appeal under Rules 40 to 45 which is that as I said an order under Section 1 of rule 17. Pero
meron pang isang order of confirmation under the rules of court
Sa presentation pa lang ng problem alam mo na kung ano ang at un ay under Rule 68 - foreclosure of real estate mortgage. So if
remedy mo na ilalagay nyo. Once the judgment has been entered, you are asked what is an order of confirmation, dalawa yan under
meaning to say it is already executory you are left with but two Section 1 of Rule 17 and the other one is under Rule 68, Section 3.
remedies. Forget about all the other remedies that I mentioned What do you confirm? The sale. Foreclosure sale must be
dalawa nalang Rule 38 petition for relief from judgment and confirmed; until and unless the sale is confirmed, it will not cut the
annulment of judgment. Sa presentation palang ng problem alam equity of redemption. The order of confirmation under Rule 68
mo na kung ano ang ire-remedy mo. If the problem says, after cuts the equity of redemption. Section 1 of rule 17, the order of
judgment has been ENTERED, forget about all your remedies, you confirmation effects the notice of dismissal.
are only left with two remedies, petition for relief from judgment
under Rule 38 and annulment of judgment under Rule 47. Kung Section 2 ng Rule 17 is now motion. Motion to dismiss by the
ang presentation ng problem, after the finality of the judgment, plaintiff. Ung una by notice eto by motion. Bakit by motion kasi
bakit mag de-demurrer ka, that is not your remedy, tatlo lang ang nagfile na ng answer ung defendant and when the defendant filed
remedy mo, New Trial, Reconsideration, Appeal. And we have just his answer in all probabilities meron na syang counterclaim. Pag
finished the first remedy available to the defendant, which is the may counterclaim na sya, the Section 2 of Rule 17 protects
motion to dismiss under Rule 16. him...kaya Section 2 provides that filing a motion so that the court
will rule the validly of your motion not so much for the plaintiff
Un lang ba ang nareremedy? Syempre ang plaintiff meron din in but for the defendant. Kaya nga sec 2 provides that the dismissal
Rule 17. That is the 1st remedy of the plaintiff. 2nd remedy he can of the complaint of Section 2 is limited only to the complaint, the
go to Rule 34 judgment on the pleading, or he can also go to Rule counterclaim remains. (Remember this because this is
35, which is summary judgment. Hindi sya magde-demurrer kasi exceptional). We studied counterclaims under Rule 6, Section 7,
ang demurrer after the plaintiff has rested, although meron ding what is a compulsory counterclaim. What is a compulsory
demurrer on the part of the defendant if it is relative to permissive counterclaim that which arises from the same cause of action in
counterclaim. But I am talking in generality and the plaintiff can the complaint, if the counterclaim referred to in Section 2, Rule 17
also avail of New Trial, Reconsideration or Appeal and then after a compulsory counterclaim? NO. NOT NECESSARILY, it does not
judgement or after entry of judgment, he can also go for Petition make a distinction so whether it a compulsory or permissive it
for Relief. I call these the sign posts of remedial law. Presentation remains. Nakita nyo kung ano ang exceptional character nito.
pa lang ng problem alam mo na kung ano ang gagawin mong Because a compulsory counterclaim cannot survive without the
sagot. In between the sign posts of remedial law are Certiorari, complaint but here is an instance where there is no longer a
Prohibition, Mandamus. Because they can be used against complaint because it is to be dismissed but the counterclaim
interlocutory orders and in between these remedies are remains to protect the defendant.
interlocutory orders. Pag ganun ang remedy mo, not appeal but
certiorari or prohibition o mandamus. Un kahit dko na tapusin ung Mayroon ditong tinatawag na two dismissal rule. Ano ba tong 2
remedial law pag-aralan nyo lang ung sign posts wala ng lulusot dismissal rule under section 2 of rule 17,ndwhen the plaintiff cause
dun. A matter of understanding, matter of having a bird’s eye view the dismissal of his own complaint the 2 time around, he can no
of the entire remedial law. longer file it again, meaning the second dismissal is dismissal with
prejudice. Di na sya puedeng mag file again that case . Exception
Rule 17 to the 2 dismissal rule, if the first dismissal was on the ground of
lack of jurisdiction. If the 1st dismissal was on the ground of lack of
jurisdiction, then the two dismissal rule will not apply. Section 3 is
2017: AUSL BarOps Remedial Law Team Page 26 of 109
a cross reference to Sections 1 and 2. While you apply that to
notice and motion, these matters may also be applied to other 3rd After the mediation and if the mediation failed, it will be returned
party complaints, cross claim and so on and so forth. And to the Clerk of Court who will undertake preliminary conference.
remember what I told you the grounds there under Section 3,
dismissal motu proprio by the court tatlo yan: 1) failure to present The clerk of court should try to arrive at settlement (this is
evidence in chief, 2) failure to prosecute for an unreasonable considered the second time for trying to settle). If settlement fails,
preliminary conference proper will take place. Here, the clerk of
length of time and 3) failure to comply with any order of the court.
court proper will ask the plaintiff the following:
Nasan ung lima...Section 1 of Rule 9: res judicata, litis pendentia,
1. What pieces of documentary evidence he has;
lack of jurisdiction and prescription, ung pang walo, summary 2. How many witness will the plaintiff present;
procedure so that is the 3rd time that only in these instances that 3. How long will it take you to complete presentation of evidence
a court can dismiss the case motu proprio so that is Rule 17. (Continuous trial will apply);
4. same questions with the defendant (1-3);
Rule 18, mahaba ang rule 18 pre trial, kasi I am going to discuss it
5. what is the issue of the plaintiff
as amended. So you look now into the mediation and conciliation 6. what is the issue of the defendant
proceeding, we will discuss it after lunch. 7. stipulation proper

Once the stipulations are admitted, they don’t form part of the
trial anymore. The stipulations will be given to the court which
would right then and there write and issue the pre-trial order.

Relate to rule 118 (pre trial in criminal procedure) The pre-trial order is mandatory.

Today, pre-trial is mandatory in both civil and criminal cases. One new thing in the pre-trial order, the court will always ask you
If there is no pre-trial, there is irregularity in the proceeding. if you will avail the modes of discovery.

Under criminal procedure, Rule 121, irregularity in the proceeding Upon receipt of the pre-trial order, you have 10 or 15 days within
can be a ground for new trial. which to file a comment or opposition. Failure to file your
comment or opposition to the pre-trial order will hinder your right
Pre-Trial in CIVIL vs CRIMINAL to change anything during the trial. You will not be allowed to
As to OBJECTIVE present testimonial evidence not included in the pre-trial order
They have the same objective. Pre-Trial is there to expedite the but you are allowed to substitute.
proceedings. It is the guide to the trial. The stipulations and
admissions in the pre-trial will not be discussed during the trial. E.g. Those not marked as evidence will not be admitted.
In criminal cases, part of pre-trial is plea bargaining. There is no Speedy Trial Act
plea bargaining in civil cases. You do not enter into a compromise In actual practice, it delays the proceedings.
in the pre-trial proper in civil cases.
You can plea bargain to a crime which necessarily includes or is Presence is mandatory in pre-trial.
necessarily included. Basis: Rule 9
If absent in pre-trial, immediately you are allowed to present
E.g. if you are charged with homicide, you cannot plea bargain to evidence ex parte and on the basis of such evidence judgment will
jaywalking be rendered.

Administrative Matter 03-1-09 (mediation and conciliation Pre-trial brief

proceedings) Same effect as presence.
This is mandatory. No pre-trial proper without undergoing and c Failure to submit a pre-trial brief, the other party will be allowed
proceedings before the Clerk of Court. to present evidence ex parte and on the basis of which judgment
will be rendered.
The term Preliminary Conference applies now both in summary
procedure, and regular procedure preparatory to pre-trial proper.
Rule 18, sec. 1
After the last pleading has been served and filed, the plaintiff shall INTERVENTION INTERPLEADER (RULE
file a motion ex parte that the case be set for pre-trial. The court 62)
will set the case for pre-trial. The court will ask if you have gone to Nature An ancillary action. This is a special civil
mediation. If not, the court will refer you to mediation. There is no such thing as action.
an action for
Preferably, the mediators and conciliators should not be lawyers. intervention.
In actual practice, these mediators and conciliators are retired Interest The intervenor must The plaintiff has no
lawyers. have interest in the : interest in the subject
a. subject matter, matter.
2017: AUSL BarOps Remedial Law Team Page 27 of 109
b. over the plaintiff or RULE 22 COMPUTATION OF TIME
c. in favor of the Always exclude the first day and include the last.
1. If A files a case
against B for recovery of
a parcel of land and the The Supreme Court emphasizes to avail the modes of discovery
parcel of land is
for purposes of expediting the proceedings.
mortgaged to you, you
can intervene because
Barangay conciliation
you have interest over Summary procedure
the subject matter.
Small claims They all
have the same objective:
2. If B is the mortgagor, Pre-trial To expedite the
you have interest in
favour of the
Preliminary conference
Modes of Discovery

The court acquires jurisdiction over the person of the intervenor There are 14 modes of discovery
upon approval of the motion for leave to intervene. RULE 27 provides 6 modes: Production and inspection of
documents and things
When can you intervene? 1. production of documents
GR: Before resolution of the action or before judgment. After 2. production of things
judgment you can no longer intervene. 3. inspection of documents
XPN: Because of TRANSCENDENTAL IMPORTANCE 4. inspection of things
Pinlak vs CA (this is the only exception). Here, the case was already 5. production and inspection of documents
in the Supreme Court on Motion for Reconsideration but there 6. production and inspection of things
was an intervenor which is the government. So the Supreme Court
said that “we will dispense with the rule” because of RULE 24 provides 2 modes:
transcendental importance. 1. deposition before action
2. deposition pending appeal
Doctrine in Pinlak vs CA: Newspaper of General Circulation
RULE 28 provides 3 modes:
RULE 20 Just read that (HAHA) 1. physical examination
2. mental examination
RULE 21 (43:44) SUBPOENA 3. physical and mental examination

2 Kinds You can avail of these different kinds and modes of discovery
1. Duces Tecum
2. Ad testificandum RULE 23 (BAR MATTER)
Whenever it is a subpoena dces tecum it is always at the same There is a pending case. You avail this mode of discovery when the
time ad testificandum. But it cannot be ad testificandum without case is pending before a court. Without the case pending, you
being duces tecum. cannot avail Rule 23.
Ad testificandum you are subpoenad to testify.
Duces tecum you have to produce certain document and testify When the court has acquired jurisdiction over the defendant or
thereon. over property, deposition pending action can be availed of by
leave of court. But once answer has been filed, there is no need
Can you quash a subpoena? for leave of court (Sec.1, Rule 23)
YES. When it is unreasonable.
Why? Parang baliktad?
Viatory Right Because the answer joins issues in the case. When issues are
You can assail or quash a subpoena issued against you if your joined, that delimits the issues in the case and when issues are
residence is 100 kilometers away from where you are going to limited because the complaint and answer have been joined,
testify (Sec. 10, Rule 21). there is no need for leave of court because the questions to be
propounded in the course of the deposition taking will definitely
If you do not follow subpoena, you may be declared in contempt limited to the issues as designed by the complaint and answer.
of court.
When you are declared in contempt of court, you can be arrested.

2017: AUSL BarOps Remedial Law Team Page 28 of 109

But if there is no answer yet, ask for leave of court because the
proponent must be a lose canon to the detriment of the party This is also taken stenographically.
In open court, who ever calls a witness is DEEMED to be using him
In deposition taking, you must know the following parties of as his witness. Not so in deposition taking (under Sec. 7 and 8, Rule
which each deposition shall be taken: 23).
1. any party to the case, or
2. a non party When one takes the deposition of another he is not deemed to
have taken him as his witness. Others can use the deposition as
E.g. evidence. Because after the taking of the deposition, the records
Parties to the case: A, b, c, d, e will form part of the records of the pending case. It will be
Plaintiff submitted in court.
Co-defendant Is that evidence?
Third, fourth, fifth party defendant Yes.
Whose evidence?
Any one of them can cause the taking of the deposition of any of Nobody’s evidence.
them or none of them.
The basic requirement of admissibility of evidence is offer.
A can cause the taking of the deposition of d or c, or X (a non party) When do you offer testimonial evidence? Even before you ask the
first question.
Whose deposition can be taken?
That of a party or a non-party. But always at the instance of a In deposition, you offer the evidence when you make use of it.
party. Because it does not follow that when you cause the taking of the
A non-party cannot go to court and ask for the taking of the deposition of someone, that someone is already your witness. Not
deposition of anyone under Rule 23 because there is already a yet.
pending action.
Sec. 4. Use of Depositions.
What is a deposition? a. Any deposition can be used to impeach or contradict the
It is testimonial evidence. deposition or the testimony of the deponent.
-Because the GR is not discarded by simply taking the deposition.
Thus, the general rule in testimonies will apply.
GR: Testimonies must be done in open court (under Rule 132). GR: Testimonial evidence must be taken in open court.

What is the opposite of “open court” E.g.

Trial in chambers. Mr. A would like to cause the taking of the deposition of Mr. X with
leave of court.
XPN: When testimonies are done outside the court, it becomes a Court asks why
deposition. (Deposition Taking) Because Mr. X is living abroad and he might not come back so Mr.
A would want to take Mr. X’s deposition.
Before whom is it taken? Court says OK.
It depends, whether it is taken here domestically or outside the Mr. X’s deposition is taken in stenographic notes and that
country (taken abroad). deposition will be submitted to the court.
If it is taken abroad, it must be before the consular office or
members of the consulate: the consul, the vice consul, or any That does not become part of the evidence of anybody. It only
consular officer. forms part of the records of the case. Anyone can offer that.

If it is taken in the country, it can be taken before anyone who is Why?

authorized to administer oath. This includes notary public. Thus, a Because in the taking of the deposition anyone was afforded the
notary public can be a deposition officer. right to due process. You can cross-examine, etc. No violation of
the right to due process.
What is needed?
NOTICES to be given to all parties. All the parties notified should The deposition only forms part of the records.
be there to conduct their own examination whether cross or re-
cross or re-direct. E.g.
Nakuha mo na yung deposition, nakatranscribe na. It already
When you apply for the taking of the deposition of a party, send forms part of the records of the case. But Mr. X comes back to the
notices to all the parties that you are going to take the deposition Philippines. What if the other parties ask Mr. X to testify?
of Mr. X on a particular period and at a particular place.
2017: AUSL BarOps Remedial Law Team Page 29 of 109
Will he be prohibited to testify because his deposition has already On the day and time in place, according to the notice, you start
been taken? asking questions.
NO, because the GR is that testimonial evidence must be taken in
open court. Sec. 25, deposition upon written interrogatories.
The questions are prepared ahead of the testimony taking.
So Mr. X takes the witness stand, and at the instance of D’s
counsel, who used now Mr. X as his witness, now the direct If I am the proponent, I will prepare direct examination questions.
examination. I will furnish all the parties copies of my direct examination
questions. After, we will prepare cross-examination questions.
Suppose there is a question, where were you on March 5, 2005? Send it to the parties, then prepare re-direct examination
questions. Send it to all the parties, who finally, will prepare re-
Mr. X said, “on March 5, 2005, I was walking along Avenida St. at cross examination questions.
Mr. A said, “sinungaling to. Kinuha ko yung deposition niya, sabi When all of these are gathered and the deposition taking happens,
niya March 5 nasa New York siya.” hindi na actual ang pagtanong. Babasahin nalang dun ng
deposition officer kasi prepared na ito ahead.
So ano ang gagamitin ni Mr. A? CROSS-EXAMINATION.
Do you see the futility of this Section?
Mr. A will say, “Mr. X, do you recall the time your deposition was
taken?” Madali gumawa ng direct examination questions. Paano mo
Mr. X: Yes maggawa ang cross-examination questions na wala pang sagot?
Mr. A: I have here a copy of your deposition, will you go over it. Is
that your deposition? You conjecture, if the answer is this, my question is this. But if the
Mr. X: Yes. answer is otherwise, my question would be this.
Mr. A: You have signed it.
Mr. X: Yes, that is my signature. It is more difficult, thrice as much, to prepare re-direct
Mr. A: Will you please go to page 5? Please read question number examination questions when there are yet no answers to the
2. cross-examination questions. And its almost an impossibility to
Mr. X: It says, “Where were you on March 5, 2005? I was in New prepare a re-cross examination.
Mr. A: That is according to your deposition, correct? But why is this allowed by the rules?
Mr. X: Yes, Your Honor. Because the rules allow a combination of sec. 15 and sec. 25
Mr. A: No further question, Your Honor. especially if the deposition will be taken abroad.

GR: A testimony must not only be credible by itself, it must also E.g.
come from a credible witness. The deposition will be taken in Michigan. Sasabihin mo sa client
mo, my deposition taking dun, pupunta ako sa America. Sabi nung
Here, the testimony as well as the witness are both incredible. client mo, “Atty., di ko kaya yan.” Sabi mo, “Sige bahala ka,
INADMISSIBLE. importante yun.” But if you are fair and just to your client, you will
say, “Okay, I will just prepare cross-examination questions.” Kung
Paragraph a, USE OF A DEPOSITION. tumugma, okay lang. Kung hindi, walang magagawa.

Paragraph b, DEPOSITION OF A PARTY, OFFICER OF A Send it to the deposition officer in the United States.
- you can use it to impeach or for your own. RULE 23 does not apply in criminal cases. It started with People
vs Hubert Webb. Followed by Vda de Manguera vs Risos and
Under the rules on evidence, when you offer a part of the People vs Go.
deposition, the other can offer the entire. Deposition taking in criminal cases is not allowed.


WITNESS CAN BE USED FOR ANY PURPOSE, whether a party or not Separate Opinions (Davide and Puno)
a party. While depositions under Rule 23 are not applicable in criminal
-when such witness is already dead or cannot testify or is very sick. cases, there are equivalent provisions in criminal procedure (Secs
12, 13 and 15, Rule 119, Advance examination of the parties in a
These are the uses of deposition. criminal case, either the accused or that of the prosecution
There are 2 forms of taking the deposition under Sec. 15 and Sec.
25. Deposition taken in criminal cases, as much as possible, must be
done in court and before the judge. Not necessarily the judge
Sec. 15 is deposition upon oral examination. hearing the case, but any judge, provided it is approved by the
court where the case is pending.
2017: AUSL BarOps Remedial Law Team Page 30 of 109
His estate will be liable for his obligation to BDO. To assure na
Deposition under Rule 23 is done before a deposition officer, kaya tama whatever case, JPE can ask for his won deposition. Can he do
it is not allowed in criminal cases. that? Yes.

It must be before a judge, preferably. BDO can also go to court and ask for the taking of the deposition
of JPE because you can foresee that sooner or later there will be a
RULE 24 DEPOSITION BEFORE ACTION OR PENDING APPEAL case relative to the 250Million obligation. Which I think by that
time will now be chargeable to the estate.
When the case is already on appeal, you can still ask for the taking
Where will you ask for that?
GR: With the appellate court. A party to the case can prepare questionnaire to the other party
which the latter will have to answer.
For what purpose? So that in case it is remand to the trial court,
the deposition can be used as testimonial evidence. Sec. 6 (IMPT)
The sanction for non-compliance to the rule.
Deposition is testimonial evidence.
The one who should prepare the written interrogatories and did
Can you offer such evidence as documentary? YES. The copy of the not do so cannot be compelled to testify in court or for his
transcript. deposition to be taken.

If you are not offering the evidence as to its content but only to The sanction refers to the party who should have prepared the
establish the fact that it was taken, it can be object evidence. written interrogatories in order to expedite.

E.g. Dito sa written interrogatories, pag sinagot yun, that will be set
I want to establish the fact that deposition was taken. aside as part of the trial.

You are not establishing the content. If content, that is testimonial Ngayon, my possible conflict when we were discussing pre-trial,
or documentary. hindi ba meron nadin dung stipulations and admissions? How will
that go together with interrogatories to parties? Hindi na ngayon
In case of pending appeal, in case of remand, ibabalik don, you can mag-aaply yun, because of the stipulations and admissions. So
use the deposition. these interrogatories to parties now would be those questions
after the fact. Kasi yung present during the pre-trial, i-stipulate mo
Ano yung before action? na yun. But after the fact if something happened, you can avail.
Wala pa ngang kaso, kukuha ka na ng testimony?
Yes. Because you can foresee that there will be a case. And by the So this is a second chance for you to expedite the proceedings.
time that there will be a case, baka hindi mo na makuha yung
principal witness mo. So ngayon pa man, kunin mo nay an. RULE 26 REQUEST FOR ADMISSION

First, which court has jurisdiction? Because this is a separate Ganun din, the sanction is upon the party who did not ask or
action. That is an action not capable of pecuniary estimation. request for admission.
Hence, RTC.
If I am the plaintiff, and based on the pleading, I know that there
Venue? The residence of the prospective defendant. are certain questions the answers to which can be done by the
defendant, I have to apply Rule 26.
Perpetuation of testimony under Rule 134. In fact, Rule 134 has
already been transposed to Rule 24. Because you want to I asked him, I requested him to admit the following, and if he does
perpetuate the testimony of someone kasi hindi mo nasisiguro not admit or answer, then the queries that I have prepared will be
that by the time you need his testimony, he would still be around. admitted as to their authenticity and due execution.

E.g. Note that as against 25, dito sa 26, this refers to DOCUMENTS.
Juan Ponce Enrile, he is now going to 92 yrs. Old.
Very colourful political life. Tie this up with Secs. 7 & 8 of Rule 8.
Ngayon, tahimik si Manong Johnny. Manner of making allegations in the pleading.
For instance, JPE was able to secure a loan worth 250Million from Actionable Documents.
BDO payable in 25 years.
So kelan matatapos ang pagbabayad ni JPE? 92+25=117 Will there be no conflict between Rule 26 and Secs. 7 & 8 of Rule
If you are JPE, pwedeng ma-foresee mo na magkakaroon ng kaso 8?
against you, or against BDO.

2017: AUSL BarOps Remedial Law Team Page 31 of 109

Kasi sabi sa Actionable document, that when a party avails of an Doctors are not allowed to testify in connection with what he
actionable document, the adverse party must deny it specifically discovered from his client/s in relation to the case that he is
under oath. Otherwise, authenticity and due execution are handling.
admitted. When is there a waiver?
It is not between the doctor and the patient who was examined
Magcoconflict ba? by order of the court because that is already waived.
NO. Because what is referred to under Rule 26 are non-actionable
documents, otherwise contradictory. This is between a patient and another doctor examined at the
instance of the person himself.
In an action for sum of money, the Promissory note is an Basis is Sec. 3
actionable document. That will not be covered by request for
admission. E.g.
A vs B, plaintiff and defendant.
But suppose the obligation is covered by 100 sales receipts or sales A, plaintiff, wanted a mental examination of B by Doctor X.
invoices which are not actionable documents. So instead of Between B and Doctor X, there is privileged communication.
presenting them 1 by 1, ipa-admit mo na yon.
Yun ba ang winewaive ditto?
Take note again, after the fact ito. Why? Because of the pre-trial. Hindi, kasi wala nang privilege yon kasi it is by order of the court.

Ilabas mo na sa pre-trial kung gusto mong pamarkahan. The examination of B by Doctor X is at the instance of plaintiff A.

But if they are not available, you do this. Second chance request But who is entitled to the medical report of Doctor X.
for admission under Rule 26. A, because it was A who wanted B to be examined.
So the medical report of Doctor X must be given to A.
Look at Sec. 5
If Mr. B would like to get a copy of the medical report of his own
Rule 25, Sec. 6 vs Rule 26, Sec. 5 person and it is given to him, then to level the playing field, any
These are the sanctions examination conducted upon B by other doctors like Doctor Y,
there is privilege communication that is waived.
The sanction is on the person who should have availed of these
Rules but did not. B in relation to Doctor Y.

Under Sec. 6 of Rule 25, cannot be compelled. Because B asked for the result of his examination when he is not
entitled to that report. It should be. So A must also be given a
Dito, cannot be allowed to present evidence on those documents chance to see the medical report of Doctor Y on B.
because you failed to ask or request for admission.
The privilege communication between B and Doctor will be
But that can be joined together already because the subject here DISCOVERY
are not only documents but also objects.
1. that which is sought to be admitted is now deemed admitted.
Often used in Criminal cases 2. you can claim also for damages
Ocular inspection. 3. you can ask the non-compliant party to be cited in contempt of
E.g. 4. you can have him arrested.
Exhumation of the cadaver- because cadaver is already an object
Judicial Dispute Resolution
You can also examine a living body Depends if before MTC or RTC. The judge may conduct Judicial
Dispute Resolution (JDR) or one can move for JDR. The point is, if
RULE 28 PHYSICAL AND MENTAL EXAMINATION in the JDR, it does not materialize, the general rule is, the case will
Ties this up with privileged communication under Rule 130, Sec. be re-raffled, unless the parties agree to submit the same to the
24, particularly the relationship between a doctor and a patient. judge before the case is pending, instead of filing a motion for
inhibition (kasi medyo pangit tingnan minsan, so magmotion ka
Sec. 4 (BAR MATTER) for JDR. And alam mo naman na hindi ka mag-aagree sa JDR, and
Waiver of Privilege then you ask for re-raffle).
What privilege? Privilege of communication. Mediation and conciliation do not only apply in the trial courts,
also apply in the appellate courts. By motion or motu proprio, the
court may apply JDR. Let me tie this up in criminal cases, should
2017: AUSL BarOps Remedial Law Team Page 32 of 109
there be JDR, the general rule is, criminal cases are beyond acquires jurisdiction over the person in criminal cases. In civil
compromise, but once you resolve the civil aspect, the resolution cases, the court acquires jurisdiction upon valid service of
of the criminal aspect follows. It is more of the circumvention of summon or voluntary surrender. In criminal cases, upon lawful
the law. Because criminal cases, cannot be compromise, so you arrest. Perhaps, the question is - once invalidly arrested, can he be
ask to settle the civil aspect, and once settled, the fiscal will say, re-arrested? The answer is yes, of course. Why not? Because the
“considering your honor that the civil aspect of the case, and by arrest is invalid.
virtue of the affidavit of desistance executed by the private Example, under Section 5 of Rule 113 on warrantless arrest, a
complainant, the prosecution will be unable to establish the guilt person was arrested on the “attempting to commit” stage but was
beyond reasonable doubt, so we move for the dismissal of the not proven, so he was not validly arrested.
case”. The court will grant that easily. (So inikutan lang ung batas. In People vs. Menggito, the warrantless arrest is not valid, as
Kasi kung ididirect mo, we have settled the criminal aspect, that holding ones stomach is not a crime. He is not committing or
would be denied. The plaintiff is already the Republic, so if you attempting to commit a crime. Only suspicious looking.
want to settle this, you have to ask for the settlement of more than
hundreds of Filipinos). Rule 30: TRIAL (Civil)
Read this together with Rule 119. In Rule 30, the following are
Is an action for foreclosure an action incapable of pecuniary important:
estimation? a. Notice of trial, must be given at least five days before the date
In the case of Brgy. San Roque vs. Heirs of Pastor penned by Justice
Ferria, it was stated that an expropriation proceeding is an action b. Postponement
not capable of pecuniary estimation, so is the foreclosure of real There are two grounds:
estate mortgage and partition. i. unavailability or absence of evidence; and
In a 2015 case (title not mentioned) – foreclosure of real estate ii. illness of counsel or party (most abused ground by lawyer).
mortgage can be an action involving title to or possession of You have to present certificate (most abused – medical
property, hence, the determinant of the jurisdiction will be the certificate).
assessed value of the property pursuant to Republic Act No. 7691.
In this case, there is no direct statement that foreclosure is an c. Order of trial
action incapable of pecuniary estimation as stated in the early Do not confuse this with order of presentation of evidence
case of Brgy. San Roque vs. Heirs of Pastor. under Rule 132. This means you start with prosecution or
It’s not always that foreclosure of real estate mortgage involves plaintiff in civil cases, defendant, co-defendant, third or
title to or possession of property. Most mortgages would avail of fourth or fifth party defendant, the last person to present the
extrajudicial foreclosure rather than judicial foreclosure (Rule 68). evidence is the intervenor.
In the presentation of evidence, direct, cross, indirect,
Can a person declared in default be allowed to present evidence redirect, or recross.
on appeal?
Of course, if he appeals, because when you are declared in default, Rule 119: TRIAL (Criminal)
you lose your personality before the trial court. But in order to Take note of the following:
regain the personality before the trial court, the remedy is to file a. Sections 1-3 (time frame)
a motion to set aside the order of default. Otherwise, judgement In criminal cases, it cannot, in no way, exceed 180 days. Not in
by default will follow. Any remedy against the judgement is civil
available against a judgement by default. So when you appeal that Section 3 – exclusions, the common denominator is delay
judgement, you have new list on your legal life, so you will be (valid delays)
allowed to present evidence. But remember that on appeal, trial Extended time limit – Aside from 180 days plus 80 days = 260
or actual presentation of evidence is not a matter of right. Because days
in our rules on appeal, you only to have submit documents. b. Sections 12, 14, and 15
However, the court can ask for oral arguments. But it is not a Equivalent to deposition pending action in criminal cases
matter of right. You cannot insist that it is your right.
c. Section 17
What if the defendant file a motion for new trial and then The state witness rule
granted, can he present evidence in such new trial if he was Remember ANSAM – Absolute necessity, No other evidence,
declared in default in the original trial? Substantially corroborate, Appear not to be the most guilty,
Remedy against judgement is not proscribed against a faulted Moral turpitude (not convicted)
party – i.e., motion for new trial, motion for reconsideration, and
appeal. You can file a motion for new trial, but the question is, “on d. Section 23
what grounds”? Technically, it is allowed, on the possibility of Demurrer to evidence
newly discovered evidence. Utmost, excusable negligence. So
allowed. The answer is yes. But it does not mean that when you e. Reopening
ask for new trial it will be granted. Last section in Rule 119

How do you arrest an arrested person? *If questions will be on trial, chances are it will be from Rule 119
You cannot arrest, because once arrested, you are already under rather than Rule 30.
the custody of the law. Arrest is the means by which the court
2017: AUSL BarOps Remedial Law Team Page 33 of 109
Trial with assessors is not in the rules, but still procedurally
Rule 31: CONSOLIDATION OR SEVERANCE available. The rule only maintains trial by commissioners (not
These are not opposites. They have different concepts.
The deposition officer cannot rule on objections, he has to await
Two new cases: in court if presented. But in trial by commissioners, the
a. Metrobank vs. Sandoval, 2014 (as to severance) Commissioner acts as a judge, therefore:
a. He can rule on admission or admissibility of evidence
Severance – there is only one case but there are several b. He can issue subpoena, duces tecum and ad testificandum
causes of action. And one cause of action may be tried c. Call on witnesses
separately from the others, the only limitation is that once d. Hear the cases
judgement is rendered on one portion of the severed cause
of action, you cannot execute that yet. You have to wait for So mas malawak ang authority or right of a commissioner.
When do you ask for trial by commissioner?
The case involves properties of Marcoses. Some were In some parts, it is mandatory, such as:
transferred already to Metrobank. Sandoval granted the a. In Rule 67, expropriation.
motion for severance, i.e., try first the case of Marcoses There are two parts, the last part is the determination of just
(defendant) or separate trial for Marcoses, and separate for compensation. The rule specifically provides for the
Metrobank. The Supreme Court said that the granting of the appointment of three commissioners to determine just
motion is improper. You cannot severe that because you are compensation
not giving due process to Metrobank. This must be tried b. In partition, Rule 69, on the accounting process.
together and not separately.
How is a commissioner appointed?
b. Republic vs. Heirs of Oribello, 2014 (as to consolidation) Through an order of reference, the appointment of commissioner
Consolidation – lump or lodge together several separate and as judge. Do not confuse with order of confirmation.
distinct cases provided there is common question of facts and
law and parties Do commissioners render judgment?
e.g. No. Even when trial by commissioner is mandatory, they do not
Case 1 – A vs. B pending before the RTC of Manila Branch 55 render judgement. Instead, he is obligated to submit a report. And
Case 2 – B vs. A pending before the RTC of Makati Branch 4 on the basis of this report, judgement may be rendered by the
Case 3 – A vs. B and C pending before the RTC of QC Branch court (not mandatory). The court may:
a. Admit the report of the commissioner in toto
If there is common question of fact and law, given that they b. May reject in toto
are same parties, pending before three different RTCs, you c. Admit in part
can consolidate them. With more reason, if they are lodge in d. Reject in toto
the same judicial districts (now judicial region). As long as e. May recommit for further studies
there are common question of fact and law and identity of f. May use other means to expedite the resolution of the case
parties, cases can be consolidated.
But remember, the commissioner never render judgement.
General Rule:
You file your motion for consolidation in the lowest Rule 33: DEMURRER TO EVIDENCE
numbered case, i.e., the first case filed. But this is not Both in civil and criminal.
mandatory, it depends upon the court, on what is more Procedural basis will be Rule 43 and Section 23 of Rule 119.
convenient to parties.
This case has the only discussion in jurisprudence of the three Civil Criminal
kinds of consolidation: A kind of a motion to A kind of a motion to
i. Actual dismiss; not a prohibited dismiss; not a prohibited
ii. Quasi consolidation pleading (will not defeat pleading (will not defeat
iii. Case consolidation proper the purpose of summary the purpose of summary
procedure) procedure)
In consolidated cases, there can be one judgement or several Grounds are the same – Grounds are the same –
judgment. insufficiency of evidence insufficiency of evidence
Available after the Available after the
Rule 32: TRIAL BY COMMISSIONERS plaintiff has rested its prosecution has rested
case its case
If denied, the defendant If denied, distinguish:
presents evidence

2017: AUSL BarOps Remedial Law Team Page 34 of 109

i. If with leave of court,
accused is allowed to Del Rosario vs. Radiowealth Finance Company (civil)
present evidence After the plaintiff has rested its case, defendant filed a demurrer
ii. If without, the to evidence. Leave of court not needed. The court granted. This is
accused loses his final order. So, the plaintiff appealed. The appellate court reversed
right to present the order granting the demurrer. In addition, the appellate court
evidence remanded the case for further proceeding. The Supreme Court
If granted, this is a final If granted, that amounts held that the appellate court was partly correct and partly wrong.
order, not interlocutory. to acquittal of the While it is within the discretion of the appellate to reverse or not
accused. the order on demurrer, it has no right to remand the case to the
Appealable if granted. Not appealable if trial court. Because when the reverses, the defendant loses his
granted, otherwise the right to present evidence. Then what is it to do in the trial court?
accused will be placed in
double jeopardy. BP 22 case involving two Koreans.
If appealed, and the After the prosecution rested its case, the accused filed a demurrer
appellate court reverses, to evidence which was granted by the court. Hence, with the
the defendant loses the effect of acquittal. Private complainant, filed an appeal, without
right to present even identifying what is appealed, whether criminal or civil. The
evidence. Supreme Court approved the appeal on the civil aspect of the
Quantum of evidence – Quantum – proof beyond case. You can still appeal on the civil aspect. Supreme Court ruled
preponderance reasonable doubt (easier this wrongly, civil aspect is deemed instituted in criminal case. No
to avail) reservation in BP 22. Demurrer granted, acquittal, appeal
admitted on the civil aspect.
Oropeza vs. Oropeza.
Children filed petition for guardianship (father is a widower
who has a girlfriend allegedly wanting only money from the Cabador vs. People
father). After the presentation of evidence by the plaintiff or This involves the murder of Atty. Valerio of Quezon City. The
the petitioner, Gen. Oropeza filed demurrer. Is demurrer suspect was finally arraigned. Trial moved on for five years. The
applicable in guardianship? prosecution presented five witnesses in the span of five years.
Trial court said enough is enough, so rest your case, make now
Yes. your formal offer of evidence. Prosection said we will now submit
Bernardo vs. CA formal offer of evidence. Cabador received a motion for extension
Counsel for the accused is Atty. Miravite (author of reviewer of time to file formal offer of evidence. Cabador said, this is sobra
of Commercial Law). This is BP 22 case. After the last witness na, delaying tactic. Hence, a motion to dismiss invoking the
for the prosecution, the prosecution said I will now make constitutional right of the accused to speedy trial was then filed.
offer of evidence. But on that same day, the prosecution submitted formal offer of
evidence. The court said, this is a demurrer and so denied the
Judge: exhibits are hereby admitted, noting the objections of same. And because of the denial, the accused now wanted to
the defense counsel. present evidence, however, objected to because there is no leave
of court.
After this, the prosecution rests its case.
Judge: Counsel for the accused, present your evidence. Issue: Was the motion to dismiss a demurrer.
Atty. Miravite: I am not going to present, I am going to file
demurrer. Ruling:
Judge: Make leave of court. Supreme Court said it is not. Fundamentally, because there is only
Atty. Miravite: I move for leave of court. one ground on demurrer to evidence, which is insufficiency of
Judge: Denied. evidence. The ground here pertains to speedy trial, so how can it
Atty. Miravite: Move for reconsideration. be a demurrer? But the more important reason here is that, the
Judge: Denied. demurrer to evidence, is available only after the prosecution has
Atty. Miravite: Filed demurrer to evidence. rested its case. Here it is not yet resting its case. After submission
Demurrer was denied. of formal offer of evidence, the accused shall file comment, and
Atty. Miravite: Moved for the presentation of accused evidence. then that’s the only time the prosecution can rest its case, i.e.,
Court: Denied, you did not file the demurrer with leave of court. when the accused accepted the same. The Supreme Court
Atty. Miravite: I did. remanded the case to trial court for further proceeding.
Court: It was denied, therefore no motion for leave.
Issue: Who was right? Rule 35: SUMMARY JUDGEMENT

Supreme Court sustained the lower court. The demurrer is They are different.
without leave of court. Therefore, the accused lose his right to
present evidence. Rule 34 Rule 35
2017: AUSL BarOps Remedial Law Team Page 35 of 109
Where an answer fails to Applies when there is an appears to be in Section 1 of Rule 120 although that particularly
tender an issue, or issue, only that the issue is refers to judgment in criminal cases.
otherwise admits the sham (can be decided Well, whether it is civil or criminal, judgment is an
material allegations of the immediately by the adjudication of the merits of the case, whether it is civil or
adverse party's pleading court). criminal, it is the determination, in criminal cases for example, of
(this cannot be motu whether the accused is guilty or not guilty but the requirements in
proprio)* Sec. 1 of Rule 36 is that any judgment must be in writing,
There is no issue at all. There is no genuine issue. personally written and prepared to by the judge, do you believe
Judgement is based on Rule 35, is it not only that? That is only for academic purposes, and so to in criminal case
the pleadings, complaint, based on the pleadings personally written and prepared to by the judge. The judgment
answer, reply if there is. but other documents must contain the determination of the facts and the law on which
supporting it, like it is based. Unlike in criminal cases there are many kinds of
deposition, affidavits, and judgment in civil cases we have studied a lot of them, we passed
other doc, in support. by Rule 9, judgment by default, we discussed Rule 34 Judgment on
It is only available to the Available in claim, the pleading, Rule 35 Summary Judgment, meron pa tayong
plaintiff. counterclaim, or even nririnig na Judgment on Compromise, Judgment by confessiom in
cross claim. fact in this very R36 you have there several judgment as against
separate judgment, hindi yan “several”, kundi “seve-ral” ksi
*Note that in Rule 6, there are two kinds of defenses – negative sinevere kinut.
and affirmative. If you do not specifically deny the allegation in the When you speak of “Seve-ral” Jugments it means there
complaint, you have admitted, therefore your answer fail to are several parties in the case and the judgment is severed, 1
tender an issue. That’s why you have to specifically deny the judgment for 1 party and another judgment for another party as
allegation. Give the reason why you are denying. Otherwise the distinguished from a separate judgment, where the plurality lies
plaintiff is entitled to judgement on the pleading. with the causes of action. So a judgment on 1 cause of action may
be resolved, or issued by the court before resolving the case this
Can there be partial summary judgement? is separate judgment.

Yes So andaming Judgment in Civil Cases, you even have a

judgment on note, do you know what is a judgment on note? Or
Asian Management Corporation case note judgement? This is a void judgment, why? Because this is a
The city entered into a contract with the contractor to build the disavowal or giving up your right to due process, when 1 executes
sports arena in the city. The contractor said it has already finished a promissory note on the basis of which a judgment is rendered,
77% of the construction but the city has not yet paid the amount but in the very promissory note you say that you are liable to the
corresponding to that 77% completed project. The city ignored. So Promissory Note upon its non compliance you call that a judgment
the contractor filed a case for collection. After this, summons, plus note and that is null and void because you cannot give away your
copy of the complaint. The city answered: we deny that you have constitutional right to due process, so have you heard of nunc
completed 77% of the project. The truth is that you have only protunc, lumabas sa bar yan several years ago, kalokohan diba?
completed 55% not 77%. The contractor, filed a motion for Ano ba yan? Actually it is not a judgment but is a correction of a
summary judgement. It was partially granted. Why? Because judgment, a judgment which has not been entered must now be
there is admission. The city said not 77% but 55%. The Supreme entered yan ung nunc protunc judgment, now and then.
Court ruled that specific denial is partially admission, therefore I am just trying to illustrate to you that in civil cases there
you are bound to pay the 55%. Partial summary judgement. are several kind of judgment, what is a clarificatory judgment (CJ)
? A CJ is such kind of judgment which is subsequent to the original
RULE 36 judgment, which is vauge or nebulous, cloudy, Malabo, that is why
you file a motion for a clarificatory judgment and what does the
court do? The court amends the judgment, pag inamend ang
Good afternoon, Summary Judgment, So what is the title
judgment, we studied Rule 10 amendments, what is the effects of
of Rule 36? Kung 36 tyo dapat tapusin na na tin ang civ pro ngaun,
the amended pleading to the original pleading? The original
then provisional remedies tomorrow, then special civil action, so
pleading is superseded okay, is that also true in case of
hopefully by Sunday we can start on spec pro. Di ko sinusunod
clarificatory judgment? Yes, so the original judgment is
yung sa outline nyo
superseded by an amended judgment and don’t confuse an
There will be a question in evidence regarding matubato,
amended judgment from supplemental judgment. In
anyway familiarize yourselves with whats going on in our blessed
Supplemental Judgment it only adds something to the original
judgment it does not therefore supersede the original judgment
What is the Titile of Rule 36?, Judgments, Judgments, Final Orders
so these are 2 different things Amended Judgment and
and Entry Thereof, when you read rule 36, you read that together
Supplemental Judgment.
with Rule 120, because Rule 36 is about judgment and Rule 120 is
While there are many kinds of judgment in civil cases, in
also about Judgment, Judgment in civil cases versus Judgment in
criminal cases under R120, section 2 thereof there are only 2 kind
criminal cases. Where lies the difference? There is actually no
of judgment in criminal cases it is either judgment of acquittal or
definition of Judgment under Rule 36, section 1 but the definition
a judgment of conviction, ung dismissal technically it is an order,
the order of dismissal but as to J in criminal cases, it is either of
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conviction or acquittal and it is quite clear, section 2 of Rule 20, thereof, intindihin ng mabuti yan, that is repeated in R51
you try to look into that there are certain requirements if it is a Judgment, Section 10, that phrase is repeated, anong ibig sabihin
judgment of acquittal or Judgment of conviction. non? To understand this, what is the technical or real meaning of
What should include in a judgment of conviction? The entry of judgment? Entry of Judgment means the recording of the
participation of the accused, what crime or offense was judgment in the book of entries, every court has a big book known
committed, how was it committed, these are some facts in the as the book of entries of judgments and the clerk of court is
judgment of conviction, in the judgment of acquittal dapat more tasked, is obliged to record the dispositive portion of the judgment
pronounce it to, clearly the rules says the court must determine in the book of entries ano yung dispositive portion? Yung nagsstart
whether the prosecution has failed to established the guilt of the na “WHEREFORE”, “PREMISES CONSIDERED” etc, yung hanggang
accused only beyond reasonable doubt or failed absolutely to don sa “SO ordered”. That dispositive portion is recorded in the
establish the guilt of the accused. Bakit imporatante yung book of entries of judgment that is the real meaning of entering
distinction because of the civil liability, if the judgment in Criminal the judgment recording it in the book of entries pero sinabi dyan
Case simply says the prosecution was unable to establish guilt of that the date of entry of judgment is not really the date of
the accused beyond reasonable doubt that does not remove the recording of judgment but rather the finality of judgment bakit? If
civil liability, pero if there is no basis for the judgment because the you interpret it otherwise then the prescriptive period will now
prosecution absolutely failed to prove the guilt of the accused depend on the clerk of court and not depending on the rules, kaya
then what happens then there is no concomitant civil liability, in nga irrespective of the date of the recording of the dispositive
Rule 111 you know in crim pro, whenever the criminal case is filed judgment in the book of entries, the judgment becomes executory
the civil aspect arising from the crime is deemed instituted kaya when the parties has lost already the right to appeal, file a motion
palaging kailangan yon, so dalawa lang yon ganon. for new trial or a motion for reconsideration, kaya importante yon,
Another distinction that you must know, is that in civil bakit importante yung date of entry of judgment? It is important
cases a judgment becomes finale and executory when there is no because that is the point of preference for certain prescriptive
appeal or new trial or reconsideration, but in criminal cases it is period like in Rule 38, Petition for Relief of Judgment or denial of
not limited to the absesnce of new trial, reconsideration or appeal, appeal, it says there 6 months from entry, 60 days from
when the accused is start serving sentence then the judgment knowledge, ngaun yung point of reference is there 6 months from
becomes final, pero ang possible BAR question ditto is probation, entry anong ibig sabhin nung entry? Is that the actual recording of
kung sakali, because there is a new caes yung Kulinares vs People the judgment? NO! finality of judgment or when the judgment
but that was reiterated lately by villareal vs people, Criminal becomes final and executory
Procedure ito hopefully your reviewer will discuss this 2 cases ung The date shall not depend the whims of the clerk of court
Villareal eto yung Aquilla Legis, pro simply what is the general but must be with the rules of court kaya that sentence is quite
rule? The doctrine is that when the accused applies for probatiom important the date of finality of judgment shall be deemed to be
that makes the judgment final but look at the twist in this Villareal the entry thereof, date of finality, and when is a judgment final?
following the case of Kulinares, Villareal is a 2015 decision, ditto When you loose already your right to appeal, or file a motion for
hindi pa nagappeal, so when you appeal you loose your right to new trial, or a motion for reconsideration. Yung classical example
probation, but in the villareal case inappeal and on appeal there na binigay ko sa inyo diba? A files an action against XYZ, judgment
was a reduction of the penalty and the penalty imposed on appeal was rendered in favor of A and copies of the judgment were
was no probationable so nagfile ng probation, ang ng Korte received by XYZ on Jan 5, 10, and 15 diba? So kalian sila pwede
Suprema, error yung nangyare sa trial court, that is why this is mag appeal? 20, 25, 30 san ba natin to diniscuss? Jurisdiction ata,
probationable yun ang possibleng mangyare dyan. residual jurisdiction, so yun, when does a judgment becomes
In criminal cases, also, judgment becomes final when final? After the 30th, the judgment not just become final but
there is a waiver, probation, then it becomes final. executorry even if that is entered or recorded in March the date
You will notice that in criminal cases they don’t use the of entry is still January 31 I think that is already clear so hanggang
word executor, kaya medyo Malabo, sa civil cases madali ditto nalang ang Rule 36, nga pala who can prepare a judgment
maintindihan, a final judgment is not an executor judgment but an pala? Syempre sabi tinatanong paba yan? Tinatanong paba yan?
executor judgment is necessarily final, yung a relationship, so if So di na yan pinagiisipan, syempre yung judge but sinong judge
you draw a small circle, this small circle represents a final yung judge sa kaso nasa RTC branch 55 Manila, should it only be
judgment and you circumscribe that small circle with a big circle, the Judge of RTC branch 55 of manila who can render the
the bigger circle represents the executor judgment kaya nga once judgment? No, not necessarily suppose this judge was transferred
you have the bigger circle the small circle is there but you cannot to RTC quezon city, can he still render the judgment of the case he
have the big circle without the small circle so that’s how you have heard in Manila? Yes, yung 1970 wala na yung Soria doctrine,
to look at it. overturned na yan, sabi non only the judge that heard the case,
In civil cases there is an entry of judgment, entry of ngaun pag lateral ang judgment ng judge he can still render a
judgment is different from promulgation of judgment, in criminal judgment of the case, ay eto people vs donesa na ngaun, 1973
cases iba din yon, promulgation of judgment in criminal cases is hanggang ngaun yan ang ruling, pro vertical transfer hindi na,
the reading of the judgment and only then will it be entered upon MTC judge ka at kinuha ka sa RTC you cannot anymore render a
filing of the judgment with the office of the clerk of court ang judgment of even which you hear, later lang, RTC, RTC, MTC to
tawag dyan sa civil case, yung promulgation rendition as MTC. The general rule therefore, the incumbent judge must be the
distinguished from entry of judgment. one to render the judgment, even if he did not hear the case not
Eto ang very important provision dyan sa Rule 36, Section a portion of a case was heard by him can he render a judgment?
2 the second sentence I underline nyo un, intindihin ng mabuti, Yes, if he is the incumbent judge in the Sala where the case heard
the date of finality of judgment shall be deemed to be the entry
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kasi ang pagbabasehan nya lang is yung transcript, yung TSN. So have not guarded against and would prejudiced the substantial
this Rule 36. rights of the parties iqualify nyo agad. Halimbawa may objective
question that would be an incomplete answer if you just say
RULE 37 Fraud, Accident, Mistake and Excusable Negligence, the worst
Let me premise this of sign post remedial law, I will thing that you can answer is to answer it “FAME” your answer will
repeat that for clarity, uulitin ko yan ngaun, uulitin ko padn yan sa be wrong. And the 5 ground is Newly Discovered evidence which
November 3 kaya dapat di nyo mkalimutan sa November 23 pre could not be discovered despite of diligent effort and if so allowed
week natin kung ano ang diniscuss ko dto yun ang ididiscuss ko din would probably alter the result.
doon so wag na kayong pumunta. Fraud, Accident, Mistake, and Excusable negligence
Design post of remedial law, remedial law is all about tignan natin ng mabuti to, these are the same grounds for petition
remedies as far as the plaintiff is concerned anong unang remedy for relief under Rule 38, settled is the rule that you cannot avail of
nya? Rule 17 dismissal of action then Rule 34, Judgment on the Rule 38 if you have the chance to avail of Rule 37 and you did not
pleading, then Rule 35, Summary Judgment, then he can ask also yan ang unang condition sa Rule 38, prerogative remedies ang
for new trial, or reconsideration and appeal under Rule 37 yung tawag don, yung dalawang natitira after remedies for executory
New trila and consideration. judgments Rule 38 and 47 they prerogative remedies. Kaya tignan
Pagdating naman sa defendant yung first remedy nya is mabuti ung meaning ditto kasi they have the same meaning Fraud,
Rule 16 motion to dismiss, yung pangalawang remedy nya is Accident, Mistake, and Excusable negligence.
Demurrer to evidence, then new trial din and reconsideration and What is Fraud? Deceit panloloko, panlilinlang but eto ang
then appeal yun lang ang mga remedies, in between design post panloloko or panlilinlang which is beyond your control kasi kaya
you have the special civil action of mong kontrolin it is not extrinsic, it is intrinsic so yan yung ground
certiorari,prohibition,mandamus because this special civil action for new trial here it must be extrinsic fraud, fraud committed
are not against final orders, but against interlocutory order, outside the trial because if fraud or deceit is committed within or
pagtapos non when the judgment has become final and excutory, during the trial you are given the opportunity to contest it, to
dalawa nalang ang remedies which are petition for relief from oppose it, but you did not therefore there is a waiver. Yung kaso
judgment under Rule 38 and annulment of Judgment kaya sabi ko ng Formoso, pinagaaralan yan sa contempt pero partly etong si
sa inyo presentation palang ng problem dapat alam nyo na kung Atty. Formoso ng present ng mga evidence which according to the
ano ang remedy nyo kung yung order ay interlocutory wag na kayo judge were fraudulent, if it is true what kind of fraud would that
magisip nitong mga appeal na ito, hindi pwede yon ang remedy be? Intrinsic because it was committed in the course of the trial
dyan would be certiorari. and this is not a ground for new trial you should have objected to
Now we are starting our first remedy available to both it right there and then but since you did not object therefore you
plaintiff and defendant, which is New trial or reconsideration have waived.
under Rule 37, but let me atleast tell you that in both civil and Ano ung extrinsic fraud? That beyond your control,sabi
criminal cases merong remedy ito but look at the grounds so when ng kalaban mong abogado, padre wag kana pumunta sa pre trial
you read Rule 37 you read that together with Rule 121 sunod bukas, bakit?kasi ngfile nako ng motion for suspension of our
sunuran lang diba? Iba ang grounds, they are not identical. hearing tomorrow, “ganon ba? So d nako pupunta” the next order
Let’s start with civil cases, in civil cases, new trial and you received was a copy of the judgment kasi ngpresent pala sya
reconsideration are separate and distinct remedies, they are not ng evidence ex-parte cause you were absent, that is extrinsic
the same because they have different grounds, the 1964 rules of fraud.
court walang clear distinction but under the present rules of court Now if you are the one who committed the fraud, you
there is a clear distinction between the grounds for new trial and cannot ask for new trial of course, you must not be the guilty party
reconsideration. of this extrinsic fraud.
Ano yung grounds for reconsideration? That the Other than fraud, the 3 other ground are more prevalent
judgment contrary to law, that the award of damages is excessive now, used in many instances, accident, mistake, excusable
or that is contrary to law, ano pa? tatloy yun, anyway, suppose you negligence.
file an action for new trial on the ground of insufficiency of What is an accident? An accident is an event not forseen
evidence, which is for reconsideration yon diba? Should the court and beyond your control, example undoy, simpleng example
dismiss that for wrong ground? No, the court must consider it as nasiraan ka ng sasakyan on your way to court it’s beyond your
a motion for reconsideration not a motion for new trial, on the control. Mistake must be mistake of fact not a mistake of law,
otherhand when you file a motion for reconsideration on the because if it is a mistake of law that would amount to ignorance
ground of newly discovered evidence should the court dismiss of the law, Aricle 3 of Civil Code. Negligence that is excusable,
that? No, the court should take cognizance of it as a motion for ngaun ano ang non excusable negligence? We are guided here by
new trial here in Rule 37 the principle of leniency is applied. jurisprudence what is excusable and what is not? Kasi ang
As to motion for reconsideration, talto yan, last meaning ng gross negligence is when what is required is ordinary
paragraph of section 1, insufficiency of evidence award of diligence, and still you committed a mistake or neglected it, that
damages is excessive, and it is contrary to law but when you speak is gross, but if it is extra-ordinary diligent you commit a mistake or
of new trial what are the grounds? Dpat sa ulo nyo nay an, you you are neglectful, then that is excusable.
cannot just say Fraud, Accident, Mistake, and Excusable Based on jurisprudence there is no hard and fast rule in
negligence, you have to qualify them bakit kailangang i- excusable negligence, I empashize this more than fraud kasi eto
emphasize? Kasi all jurisprudence speak of their qualification kaya na yung malimit magamit ngaun, what is excusable? Consider this
you don’t have to read all the cases basta alam nyo Fraud, cases, the lawyers were in court and the clerk of court says
Accident, Mistake, and Excusable which ordinary prudence could “walang hearing tayo ngaun”, “bakit?”, “because the judge is
2017: AUSL BarOps Remedial Law Team Page 38 of 109
absent.” “anong available dates nyo? Counsel for the plaintiff and So this are the grounds for Motion for New Trial. Let me
counsel for the defendant” are you available of October 6?” mention in passing the funny case of People vs Likakim, chine who
“Yes!” so they put in their calendar October 6. One of the parties was convicted for drug possession and the lawyer ask for new trial
on October 6 did not appear, because he wrote in his diary on on the ground of newly discovered evidence what is the newly
November 6, because nagmakali sya, so when this reached the discovered evidence in this case? The lawyer said passport, why?
Supreme Court he was asking for new trial on the ground of Because in his passport he is not Likakim but another person,
excusable negligence, Supreme Court said that is excusable Supreme court did not appreciate the lawyers contention.
negligence, that is Scenario number 1. May bagong kaso dyan 2013, Rumbawa vs Padilla-
In scenario No. 2 the clerk of court said wala tayong Rumbawa, newly discovered evidence to, this is a case for
hearing the judge is absent, o etong available date name, no need, declaration of nullity of marriage, ung testimony ditto was chage
we have already reset it in fact there is already and order from the of witness kasi pumalpak ung abogado, so he wants new trial on
court, ano bang order ng court? (COC) October 6, both are several grounds including excusable negligence, sabi nya had I
available, and both counsel received the copy of the order, they gotten a better equipped lawyer I would have won the case so I
went home, one of the lawyers pagdating nya sa office, binigay sa am going to have a new lawyer a better one, or whether it is a
secretary ngaun nakaligtaaan ilagay sa calendar, na misplaced newly discovered evidence, a repetition of the entire case again,
yung order, then the counsel did not appear on October 6, then because that is the effect, because the judgment in the case in
he ask for new trial on the ground of excusable negligence, the effect will be vacated, and there will be re trial or trial de novo,
Supreme Court says No that is not excusable negligence you must only those which are necessary the records of the case will remain,
be clear about your things and documents. so example you are granted new trial on the newly discovered
If you look at case no. 1 and case no. 2 you can even evidence, even if the judgment is vacated it doesn’t mean na mag
interchanged them, what I would like to tell you is that there is no sstart uli kayo sa zero, No only on that particular newly discovered
hard and fast rule as to what is excusable. So this is the concept of evidence.
excusable negligence. If you want to file a motion for new trial on So in the case Rumbawa the Supreme Court said, how
the ground of excusable negligence, whatever it is file it and let could that be a excusable negligence? The basic rule is that fault
the court decide. of the lawyer is the fault of client, vice versa, neither the
Now the 5th ground is newly discovered evidence and testimonies here will be considered newly discovered evidence.
what is a newly discovered evidence? That must be properly When are you supposed to file a motion for new trial?
qualified, newly discovered evidence which could not be You are suppose to file it after judgment becomes final this is your
discovered despite of diligent efforts and if so allowed would alter first remedy, either new trial or reconsideration. When the
the result. All the requirements must be present when you avail judgment has become executory you cannot avail anymore of
of newly discovered evidence. You must equate newly discovered these. The trial court has the absolute right to grant it or to deny
evidence with unavailable evidence the emphasis is not on the it.
word “discovery” but on the word availability, if the evidence is Can you file a motion for new trial the second time
available you must use it, it cannot be considered as newly around? It depends. If your ground for your first motion for new
discovered if you avail that after judgment has been rendered. For trial is newly discovered evidence, then you cannot file a second
example affidavit of desistance, this can be secured by the party motion for new trial but if your ground in your first motion new
in the course of the trial, there was a case after judgment has been trial either Fraud, Accident, Mistake, and Excusable you can still
rendered then the accused was convicted he moved for new trial file a second motion for new trial what is the rationale behind this?
on the ground of newly discovered evidence he was trying to Section 8 of Rule 15, The omnibus motion rule, meaning to say all
present affidavit of desistance, the Supreme Court said that it was the possible grounds must already be alleged in the motion, so
not a newly discovered evidence because you could have avail of when you file your first motion for new trial on newly discovered
that during trial. Another reports from appropriate agencies, evidence all the other ground, Fraud, Accident, Mistake, and
which can be secured during trial but you did not secure them. In Excusable, should have been already availed of, but when you file
a prosecution from falsification of public documents newly a motion for new trial on the grounds of Fraud, Accident, Mistake,
discovered evidence sought to be submitted for new trial was and Excusable, syempre you can still file another motion for new
secured by the party an NBI report that there was no falsification, trial solely on the ground of newly discovered evidence precisely
Supreme Court said it was not a newly discovered evidence because that ground was not available when you first filed your
because that report could have been secured during the course of first motion for new trial.
the proceeding. When your motion for new trial is denied, what is now
So what would be an example of newly discovered your next remedy? Your next remedy is appeal, and when can you
evidence? You have stated in your pre trial order testimony of Mr. appeal? Neypes doctrine applies here, meaning to say, upon
X as your evidence in chief but when you try to present Mr. X to receipt of the order deny your motion for new trial you have the
give his testimony his no where to be found, so he was not entire period all over again, Let me just explain to you the deletion
presented, but when your client was convicted biglan nag appear in Rule 41 of paragraph A of section 1, nakalagay dyan the
si Mr. X is that a newly discovered evidence? That can be following are not appealable, ung paragraph A dyan was used to
considered, because even if he was in new trial he later became be order deny order for new trial, ngaun wala nayan , pursuant to
unavailable and this can be used as a newly discovered evidence 07-7-2 Administrative matter which took effect in 2007, does it
because it became all of a sudden unavailable, and now that it is mean therefore that an order denying a motion for new trial is
available can you now ask for new trial on the ground of newly now appealable? NO! why? because the last section of Rule 37,
discovered evidence? Yes! Especially if that is evidence in chief, that is not an oversight this is only to emphasize the last section in
kung corroborative siguro yon baka di ka pagbgyan. Rule 37, it says there that your remedy against an order denying
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your motion for new trial is not appeal from the order but rather appeallate court it will remain at the trial court, the classical
appeal from the judgment. example of this is settlement of estate, what is only elevated are
those documents or records which are relevant and material to
the pertinent issue.
APPEAL Even in special civil actions there are mandatory multiple
Before we go to the next remedy appeal, lalagpasan ntn appeals 67 expropriation 69 partition both takes 2 part.
ang 38 to be consistent, we study now the next remedy for final When the appellant files a notice of appeal, when is
judgment, which is appeal, so where do you find appeal? You find appeal perfected? There is a cross reference in Section 9 of Rule
them in Rules 40 – 45, madali lang to, then after that balikan ntn 41 even in Rule 40 that is a very crucial or important section in
yung remedy against an executor judgments whichs is already appeal, Section 9 of Rule 41. Appeal is perfected upon the filing of
Rule 38 and 47, para systematic and chronological for purposes of the notice of appeal as to the appellant only, but the court does
academics. not loose jurisdiction of it yet, only upon expiration of period to
But let me metion about 121, because we were trying to appeal, anyway once you file your notice of appeal, we are talking
compare which is a motion for reconsideration which is the same of MTC ah, you file it with the Trial Court, you don’t file it in the
subject matter in rule 121 of criminal cases, you will note na appellate court, and once you filed and perfected it is the duty of
nawala dyan ung Fraud, Accident, Mistake, and Excusable but the clerk of court to prepare the records for elevation to the
newly discovered evidence is also a ground for new trial in criminal Regional Trial Court, and he has 15 days to elevate that, take note
cases. Ano yun? Errors of law or irregularities in the proceedings of the dates kasi pag dating ntn ng execution, that is the rationale
don’t stop there qualify it, the irregularities which will prejudice why bkit ganon sa Rule 39 because of the dates profounded in this
the substantial rights of the accused when during the trial. Itong appeals under Rules 40 – 45 so pagdating don RTC, the clerk of
lahat nangyare in the course of the trial when we were discussing court now of the RTC, it is incumbent upon him to notify the
rule 18 in relation to rule 118 I was telling you that if there is an appellant within a period of 15 days to submit memorandum of
error in the pre trial order the lack of it can be an irregularity in appeal, copy furnished the appellee who has the same period of
the course of the proceeding and that can be a ground for new time within which to prepare appellee’s memorandum and on the
trial in criminal cases, when you speak here of “during” the trial basis of the memoranda of both parties the court will render a
under rule 121, it begins with arraignment up to judgment, all judgment trial here or the presentation of evidence is no longer
irregularities therein are included. holds, puro nalang ito in writing, memorandum. If the appellant
So we go now to the last remedy of the final judgment does not submit its memorandum within the period prescribe in
and that is appeal. You find them in Rules 40 – 45, under Rule 40 the order that is ground for dismissal, if appellee does not submit
that is appeal from MTC to the RTC within the district yan, hindi its memorandum that is not a ground for dismissal but that is a
regional ang concept ditto, in other words if the MTC of Manila ground already for rendition of judgment by the appellate court.
decides, you appeal to the RTC of Manila, even if Quezon City or Fees are also jurisdictional requirement in appeal so that non
Makati are within the National Capital Judicial Region. payment of the fess will be a ground for dismissal.
Any decision, final order, or resolution of the lower
courts appeal is only and solely to the Regional Trial Court of the I emphasize Section 8 of Rule 40, because section 8 there
district, except when the MTC exercises delegated jurisdiction yun illustrates the doctrine held in Vda. De barera vs Court of Appeals,
lang, walang ibang exception. Ano ba yung delegated jurisdiction? saying that when the MTC dimisses the case for lack of jurisdiction
That is Land Registration and Cadastral Cases where the assessed with or without trial that dismissal is a final order hence it is
value of the property is not more than 100k and there are no appealable but when that is appeal ano pag appeal non? By notice
oppositors. When the MTC renders a judgment in the exercise of of appeal to the RTC and the RTC must take cognizance of it as if it
its delegated jurisdiction, Appeal is not to the RTC but to the Court had been originally filed with it that is with or without trial in
of Appeals. lower, the only distinction is if there was a trial and it was
How do you appeal from the MTC to the RTC? Your dismissed nonetheless, the records will be considered before the
appeal is of 2 kinds, 1. Appeal by notice of appeal, 2. Appeal by appellate court yun lang ang distinction dyan.
record of appeal, remember appeal by record of appeal includes
notice of appeal but you can file a notice of appeal without the Suppose the Trial court has no jurisdiction, in other words
record, but when you appeal by record of appeal that is in addition it is with MTC, what the RTC will do is to remand the case to MTC.
to notice of appeal, the most important point here is the time
frame, appeal by notice of appeal is 15 days receipt of the copy of Let’s go to Rule 41, Appeal from the RTC to CA what are
the order as against appeal by record on appeal which is 30 days the modes of appeal here? Ganon din Appeal by notice of appeal,
that is a very long period given by the rules, because you can file 2. Appeal by record on appeal, what is the distinction? The time
your notice of appeal in just a minute and yet the court gives you frame, the elevation of the record sunder rule 40 is within 15 days
15 days to do that so that it would be most impractical for one to from perfection of appeal, in Rule 41, 30 days, the clerk of court
file a motion for extension of time to file an appeal but as to of the RTC will first prepare the records of the case including the
appeal by record on appeal, pwede pa yon but this applies only in transcript of the stenographic notes which is even stated that it
cases of multiple appeals now when I say multiple appeals what must be prepared in 5 copies, 2 of which must remain with trial
we are referring to there is the subject matter constitutes several court and the 3 will be elevated there, once it is raffled to the
parts independent of each other so that a resolution in one is a particular division of the court of appeals, preho din the clerk of
final order which is appealable that is why, every final order there court of the court of appeals will now send to notice to the
is appealable and you do not appeal that by notice of appeal but appellant to prepare, ditto ung basic distinction, ang ihahanda
by record on appeal kasi hindi mo iielevate yung record sa ditto is no longer a memorandum but an appellant’s brief and the
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time frame here is 45 days, ito ang brief which is very long and under section 12 of Rule 43, the appeal shall not stay the award,
copy furnished the appellee who has the same period of 45 days judgment, final order, or the resolutions to be reviewed unless the
within which to prepare the appellee’s brief, copy furnished the Court of Appeals shall direct otherwise upon such term as it may
appellant who may or may not prepare a reply brief 20 days lang deemed just. So, so as not to frustrate or to make your appeal in
yun, and on the basis of this briefs the court can render judgment these quasi-judicial bodies “inutil” or useless, what you have to do
unless the court of appeals, call for clarificatory hearing yan ung when you avail of Rule 43 is to invoke injunctive relief which is
tinatawag na oral arguments, pag ntawag ka don mghanda ka ng under Rule 58 under provisional remedy because if you cannot get
mgandang toga, di pwede barong don, may mga cross na an injunction from the Court of Appeals, there will be no stalling
nagtatnong mga justices. Take note that oral argumentation or staying of the execution then your appeal under Rule 43 might
under the rules is not a matter of right. kaya when you file a just be useless. Now going to the last kind of appeal under the Rule
motion with the CA or Supreme Court don’t set that for hearing is appeal under Rule 45.
because it is not a matter of right.
Just a reminder, to prepare an appellants brief, binabasa Rule 45
nyo ung Rule 41 diba? Then up to the last section of Rule 41, bitin This appeal is otherwise known as; an appeal on
ka, because that is not the end of it because the continuation of certiorari, basic in your study is the distinction between Rule 45
Rule 41 is not Rule 42, but Rule 44 kaya ung appellants brief wala and Rule 65. Rule 65 is a special civil action, while Rule 45 is a mode
sa Rule 41 yan, after rule 41, you turn your page to Rule 44 that is of appeal. Remember that under Rule 65, you, or the petitioner, is
the continuation of appeal from the RTC to CA and you will find correcting an error of jurisdiction while in Rule 45, the appellant is
there the required contents of an appellants brief and this is correcting is correcting an error of judgment while in Rule 65, you
mandatory, non compliance with that is a ground for dismissal can raise factual issues, but in Rule 45, you are limited only to
under Rule 50, Section paragraph (f) kaya icomply mo yung questions of facts. Now, from what tribunal or courts is appeal to
requirements for appellants brief the SC, under 45, as amended again by the administrative matter
which took effect again of December of 2007, they have included
Rule 42 here the Sandigangbayan and the Court of Tax appeals. So it is not
Let us go now to Rule 42, the appeal in Rule 42 is not by on the CA or the RTC, but you also include the Court of Tax
notice of appeal or record of appeal, but rather it is by petition for Appeals, and the Sandigangbayan. You go up to the SC via Rule 45,
review that is the mode of appeal under Rule 43 and this is the but what you have to remember here is that, it is raised to the SC
appeal from the RTC to the CA when the former that is the RTC on pure questions of law, questions of facts are not allowed so
exercises an appellate jurisdiction. A very good example of that that questions of facts are raised to the SC under this Rule, then
would be a case of unlawful detainer or forcible entry, you already that would be a ground for dismissal considering or saying that it
know that these cases are originally and exclusively cognizable by is not the proper mode of appeal. So pure question of law, so
the lower courts so when an unlawful detainer case is filed with when is there a pure question of law? When the court does not
the lower court and the judgment therein or thereof is issued by have to investigate evidence in support of the matters raised in
the MTC, appeal therefrom is to the RTC, now from the RTC, the the petition or in the complaint then that is a pure question of law,
appeal is no longer by notice of appeal but rather by petition for but if the court is required to consider or reconsider questions of
review because RTC exercises appellate jurisdiction. evidence or evidentiary matter then ordinarily, that would be a
question of fact. This is how to determine whether an issue is a
Rule 43 factual issue or a legal issue. If it does not require the presentation
Going now to Rule 43, this is the appeal by the quasi- of evidence but only a determination of whether the correct law
judicial agencies to the Court of Appeals. The appeal here is also is applied on a particular situation then is it a question of law,
by petition for review and not by notice of appeal. If you both still otherwise, it is a question of fact. Parenthetically, let me tell you
retain the title of rule 43 including the appeals from the Court of as a matter of exception, petitions for the writ of habeas data, the
Tax Appeals, you better delete that part because the appeal under writ of amparo and the writ of kalikasan are raised to the SC via
Rule 43 no longer includes the Court of Tax Appeals, is already Rule 45 but in those petitions, the petitioner can raise both
elevated to the Court of Appeals it is no longer under Rule 43. And questions of law and facts. So these are now our remedies on
so as not to passed you or in order to facilitate your retention of appeal. To sum them up, appeal is the remedy against a final
these quasi-judicial agencies, you do not have to memorize all the order, resolution, decision or judgment, the other remedies aside
quasi-judicial bodies or tribunals appeals from which bodies go up from appeal are petitions or motions for new trial or motion for
to the Court of Appeals. I would repeat for purposes of emphasis reconsideration once the period of 15 days to appeal to file a
that you have only to remember the following tribunals; the Court motion for reconsideration or motion for new trial has expired
of Appeals, the Court of Tax Appeals, the Sandigangbayan, the then you can no longer avail of these remedies, you are left with
COA, and the COMELEC whose decisions, final orders, and two more remedies and these are petition for relief from
judgment are appealable to the Supreme Court, all the rest that is judgment under Rule 38 and annulment of judgment under Rule
actually includes all quasi-judicial tribunals or bodies, the 47.
decisions from these quasi-judicial bodies are appealable to the
Court of Appeals under Rule 43, which is by petition for review. Rule 38
Please take note of section 12 of the same Rule 43, the effect of So, let us go now to these two remaining remedies, not
appeal because unlike Rule 40, 41, and 42, upon filing of those against a final judgment but an executory judgment where the
appeals, it stays the execution of judgment but appeal by the judgment has already been entered or there is already an entry of
quasi-judicial bodies under Rule 43 has a different effect. It says judgment. Let’s start with Rule 38; Rule 38 is otherwise titled as
petition for relief from judgment, now this remedy as I said is
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available when the judgment is already executory why is this so? stayed in the US almost a year but when he returned to the
Because you cannot avail of this because it is a prerogative remedy Philippines, his first move was to find out what happened now to
in other words, this is equitable remedy. These two remedies my case and when he went to the office of his lawyer, he found
against an executory judgment are equitable remedies and you out that the office was already close because while he was away,
know the principle of equity, if there are available remedies, then his lawyer died and so he went to court and asked the clerk of
you cannot avail of these. In these remedies against an executor court, what happened now to my case? And the clerk of court, oh
judgment, have you not avail of new trial, reconsideration or there was already a judgment on your case and you lost in the
appeal because of your own fault then you cannot avail of these case, but there was already an entry of judgment, but he came to
equitable remedies of petition for relief from judgment. So, under know only of that now so he has to count from that kind of
Rule 38, sections 1 and 2 are two different remedies against two knowledge, sixty days within which to file his petition for relief
different problems. Here in section 1, it is petition for relief from from judgment. It is already beyond the six month period when he
judgment, section 2 is petition for relief from denial of appeal. So, came to know the remedy of petition for relief judgment no longer
what is the prescriptive period within which one can avail of applies. Supposed the judgment was entered in January 01 and
petition for relief from judgment. Remember these two periods roughly estimated July 01, let us says January 01 to July 01, six
which must be complied with, both periods must be complied month period, it is within that period that the party should come
with. Compliance with one will not qualify for availment for this to know of the judgment. If he comes to know of the judgment
remedy. So you have to comply with both of these periods and after July 01, then he can no longer file a petition for relief from
what are these periods? The 60-day period from knowledge of judgment. Supposed he come to know of the judgment on June
judgment and 6-month period from entry of judgment, remember 15, he has roughly 15 days only, June 15 by the time he comes to
about what I have been discussing about entry of judgment. The know of it must not be counted from the time he came to know of
date of entry of judgment is deemed to be that time when the judgment on June 15 because of the limitation of the six month
judgment has become final and executory not the actual period. If he comes to know of the judgment on June 15, he has
recording. So it is from that date of entry, you count six months until July 01 within which to file a petition for relief from
only within which, one can avail or during which a person or a judgment. If he comes to know of the judgment on the day when
party can avail of the remedy of petition for relief, after the it was entered on January 01, he has also sixty days from January
expiration of the 6-month period from the entry of judgment, you 01, that is roughly about of March 03, it is not a leaf year, just 60
can longer avail of the petition for relief from judgment. Aside days and he does not have until July 01, because these two periods
from the 6-month period from the entry of judgment, the other of sixty days and six month from entry must both be complied
period which must be complied with is the sixty-day period from with. What are the ground s for this petition for this remedy for
knowledge about the judgment. When the party comes to know petition for relief from judgment, the grounds are the same for
of the judgment, he has only 60 days within which to avail of this new trial which are fraud, accident, mistake and excusable
remedy of petition for relief from judgment. I repeat, negligence that is why when a party comes to know of this, then
noncompliance with these two remedies will render the remedy his remedy is new trial and not petition for relief only when he was
unavailable. Now, the possible problem, or question which must not able to avail of new trial or reconsideration or appeal not
be lurking in your mind is this, when does a party come to know because of his fault can he avail of this equitable remedy. Where
of the judgment? Is it not the party comes to know of the should you file this petition? Is it a separate or distinct case? No,
judgment when he is notified of the judgment? The answer is yes, although it is called a petition, it is akin to a motion because the
when receives the copy of judgment, he is furnished a copy of the rule provides that you have to file it in the same court and
judgment by the trial court, that is the time when he comes to docketed under the same number. Now, if your petition finds
know of the judgment. Should he upon receipt of the judgment merit with the court, it is as if you’re granted with your motion or
wait and he waits for 60 days and avail for petition for relief from a motion for new trial. If it is denied, it is up to you if you want to
judgment, the answer no precisely because an equitable remedy. file a certiorari, but to my mind it would be a wasted of time as
Upon receipt of the judgment, a party does not have and cannot long as there is grave abuse of discretion, possibly, there is no
have to wait for 60 days so as to file a petition for relief from a prohibition but ordinarily, the abuse there lies there is not
judgment because that remedy is not available to him. His remedy entertaining your relief from judgment even if it were meritorious
upon notice of the judgment is either to file a motion for new trial so that is the first remedy against an executor judgment or a
or motion for reconsideration or appeal from judgment, but not a judgment has been entered.
petition for relief from judgment because for the nth time this
remedy is an equitable remedy. Over and above the sixty days Rule 47
period, he has also the six months period from entry to contempt The ultimate remedy available to a party is found under
with. Rule 47 which is annulment of judgment. This is the sign post of
What is the possible illustration where one may validly remedial law that I have been talking about. Just like petition for
file a petition for relief from judgment? When the party comes to relief from judgment, this remedy of annulment of judgment is
know of the judgment other or if another way other than the also an equitable remedy meaning to say that you cannot avail of
official notification coming from the court. Give me a minute or this, have you the opportunity to avail of new trial or
two to illustrate that clearly, so as A files a case against B and after reconsideration, appeal if you have the opportunity to do that but
the presentation of evidence of A, the counsel of the plaintiff you did not do due to your own fault, it has the same equitable
rested his case, A tells his counsel, attorney, I am leaving for the nature as petition for relief. Now, take note that under Rule 47,
states and I will not be here for a year or six months and “bahala this is only a remedy against the RTC and the lower courts there is
ka na”, take care of my case and he leaves for abroad and yes no such remedy of annulment of judgment against decisions, final
confined everything and entrusted everything to his counsel and orders and resolutions of quasi-judicial bodies neither is there
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annulment of judgment of the Court of Appeals, or the With this, we can go now to Rule 39, why did we have to
Sandigangbayan, this is limited only to the RTC and MTC, to discuss this as the last topic in our lecture? Because Rule 39 now
Municipal trial courts in cities, Municipal Trial Courts and is, post judgment where there is nothing else to be done in the
Municipal Circuit Trial Courts. In fact, decisions of the RTC sought trial or in the course of the trial, the end now of procedure is the
to be annulled is exclusively and originally cognizable by the CA. satisfaction of judgment and you find that in the Rule 39. Rule 39
You cannot file that anywhere else while the last section of Rule is said to be the bible of the Sheriff, it a very lengthy rule but a very
47, provides that annulment of judgment of the lower courts are important rule not so much perhaps academically as practically,
exclusively and originally cognizable by the RTC. So, these but the thread now in the bar but also to ask a lot of question
remedies are available only to these courts and you have also a based on Rule 39. So, Rule 39 is titled execution, satisfaction and
time for these and you are given limited as to grounds you can effects of judgment, it consists this is the most lengthy rule
invoke in this kind of remedy you have only two grounds on which composed of 49 section so, we will, I will discuss it in summary for
you can depend your remedy of annulment of judgment and these your proper appreciation because of the sections there may be
grounds are fraud again it is extrinsic fraud and lack of jurisdiction. discussed together with the other so I will try to correlate. First let
These are the only ground available for annulment of judgment us go the basic principle regarding the execution of a judgment,
and what are the limitations? If you use fraud as ground for only a judgment which has been entered is executory and when a
annulment there is a limited period for that and the prescriptive judgment is executor it is necessarily, final. But a final judgment is
period is four years from discovery of the fraud if you avail of lack not necessarily executory and we put that graphically, you draw a
of jurisdiction, the limitation is principle of laches or estoppel. circle and draw another circle within the big circle. The small circle
These are the limitations to the ground of lack of jurisdiction. If stands for the final judgment and the bigger circle circumscribing
the judgment is annulled, then you can re-file it so that would be the small circle is the executor judgment. When does a judgment
your remedy, unlike, incidentally, petition for relief, this is a become executory? When all the other remedies available against
separate and distinct action, you can file separately, it is not a a final and executory judgment did not progress, you have now go
continuation even if it is a remedy, even if it is a remedial measure the last procedure which is to implement the judgment this is
it is not a continuation of the action brought before the trial court. when money lies for lawyers, so you better take note of this. You
So there you have all the remedies, both against a final decision or may be winning a lot of cases, but if you cannot execute then, you
judgment and the remedy against an executor judgment. remain a poor lawyer. But even if you have a few cases, but you
Now, there are certain things that I would like to teach to can all execute and implement them then, you are making good
this lecture relative to civil procedure before we go to Rule 39, I as a practicing lawyer. How do you execute an executor
would like to mention the fact that the Rules after 47 refer to the judgment? General rule is, you execute an executory judgment by
court of appeals, you will note that there are cases which can be filing a motion for execution so that any court cannot motu
filed in the CA in the exercise of its original jurisdiction even when proprio issue, it must be done via a motion and when are you
it is a concurrent jurisdiction, the CA can take of cognizance of it supposed to file a motion? You have to file with the trial court and
originally or for the even first time are provided for in the Rules not and never with the appellate court as a general rule so that if
48, 49, 50, 51, 52, 53, 54 up to 55, 56 would be about the CA. a case emanated from a lower court, let us say, the MTC and it
Remember that there are also cases which you can file in the CA went up to RTC and then to CA and then to SC, where will you file
in the exercise of its original jurisdiction so in the CA let me just a motion for execution? You have to go back to the MTC that
mentioned it is also a collegial body, it is composed of several originally handled the case, there you will file your motion for
divisions and the SC is also a collegial body composed of three execution. You know as you often heard and as you have studied,
divisions, the difference is that, while in SC, a majority decision issuance of the writ of execution is ministerial on the part of the
may be promulgated, in other words, it can be issued, it can be Trial court and if it is ministerial on the part of the trial court then
released and it is a valid decision. In the CA, a majority of two why is there a need of the filing of motion? A motion is still
justices will not suffice; there must be unanimity of the three necessary precisely because the court has to determine whether
justices in a division. Now, if one dissents in the CA, the presiding the judgment has become executory because of the meaning that
justice of the CA will have to create a special division for the CA an executory judgment is when all the other remedies to a party
consisting of five justices and the majority three will result to a are no longer applicable thus, a necessity of a motion. If for
valid promulgation of a judgment. Let us go over the dismissal example, A files a case against B and judgment was rendered in
under Rule 50, for your own safety or security, also go over Rule favor of A and received a copy of a judgment on January 5 and it
51, although Rule 51, is somewhat a repetition of Rule 36 is now March 05 and he goes to court and files motion for
regarding judgment. Take note that the provision which I execution and if the defendant goes there and said, “your honor,
emphasized section 2 of Rule 36 is repeated in Rule 51 section 10 why execute a judgment when I haven’t received a copy of the
where the date of finality of judgment shall be deemed to be entry judgment and the remedies of appeal, new trial, reconsideration
thereof, also take note of the harmless error which is not really are still available to defendant B so that as far as he is concern, the
prejudicial to any party and because of this it cannot be a ground judgment is not yet executory. Thus, the necessity of filing a
for new trial when certain pieces of evidence were not considered motion even if its issuance is ministerial on the part of the trial
in the resolution of a case or in deciding a case then that is a court.
harmless error which does not prejudice any party and cannot be Execution of judgment is matter of right or is a matter of
a ground for a new trial or reconsideration they are harmless discretion. When is it a matter of right? When the judgment is
errors. executory, it is a matter of right, or when the judgment is only final
and is pending appeal, then execution is discretionary or a matter
Rule 39 of discretion. Now, supposed you want execution of judgment
pending appeal, when are you supposed to file that motion? You
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have to file that still with the trial court, provided that the period 1996, you have to count 5 years therefrom, by which you can
of appeal has not expired yet and even the period of appeal has execute this revived judgment by motion in the court that issued
already expired, provided, the records of the cases has not been or rendered that revived judgment, that is May 15, 1996, you have
forwarded to the appellate court by the clerk of court then your until May 14, 2001 within which to file motion to execute the
motion for execution must be filed with the trial court. The trial revived judgment, thereafter, you have again five years within
court exercises again residual jurisdiction, but once the records of which to execute the revived judgment by independent action so
the case had been transmitted to the appellate court pursuant to on and so forth until your judgment is fully satisfied.
the notice of appeal filed by the appellant you may file your ------------------------------------------------------------------------------------
motion for execution pending appeal with the CA, the CA may When a party files a motion for execution pending appeal it is a
order the trial court to issue a writ of execution pending appeal. matter of discretion on the part of the court to grant or deny the
So, execution as a matter of right and as a matter of discretion. same. And there are certain requirements in order for the court to
Execution of a judgment may either be by both motion or by grant a motion for execution pending appeal.
action and this is found in section 6 of Rule 39. Execution by First, the motion must be a litigated motion. When the motion
motion and execution by independent action, when can one ask must contain good reasons and then the grant of the motion must
for execution by motion? You have a limited period of five years be stated in a special order. The point is, what are good reasons
from entry of judgment, thereafter, you can only execute for a motion for execution pending appeal to be granted? Now we
judgment by independent action, provided, the prescriptive are guided here by jurisprudence.
period for judgment has not expired yet which is a period of two Now I would just refer you to certain cases for you to go over these
years. If a judgment was entered in 1990, January 01, 1990, you cases and find out for yourself what are good reasons and what
have until December 31, 1995 to file a motion for execution of the are not good reasons. I am talking of the case of Far East Bank and
judgment. So you can do that by motion, you can execute Trust co vs Toh, Sr. which you'd find on 404 scra and new case of
judgment by motion from January 01, which is the date of entry of Stronghold Insurance vs Felix which youll find in 508 scra.
judgment up to December 31, 1995, this is a five –year period,. By In Far East Bank and Trust Co. the SC held that old age may be a
January 1996, you can only ask for the execution of judgment not good reason and here it was considered a good reason under the
by motion but by filing an independent action until December 31, circumstances prevailing therein while in Stronghold Insurance
2000. From January 1990 to December 31, 2000, that is the the health of the husband of the petitioner was not considered a
prescription of judgment. If you did not do anything during that good reason so check out these cases.
period, either by motion or by independent action you can no Old cases may also be instructive. Like the case of Banez vs. Banez
longer execute the judgment thereafter. So in my illustration by which you'd find in 374 scra they say its judgment in favor of the
January 01, of 2001, you have no remedy of execution then the wife in the action for legal separation and separation of conjugal
judgment can no longer be implemented , hence, the property and then the judge... and the wife asked for execution
judgment can no longer be satisfied. After December 31, 1995 pending apppeal the SC held this is not a valid ground for
until December 31, 2000, the 5-year period, you can execute execution pending appeal.
judgment by independent action, how will you go about this, this And another old case of Santos vs COMELEC, 399 SCRA. You will
is by filing an independent action, otherwise known as revival of know also that this is an election case The one who won the
judgment or action to revive judgment. Where are supposed to election which was contested by the other candidate and when he
file that? This is an independent action, and considering that this was proclaimed even if under contest the judgment of the court
is an independent action, this is not a continuation of the same was executed pending appeal that is accordingly a good reason
action because that action has long been adjudged already. Now, otherwise there will be no political representation of the members
many books say that, an action for revival of judgment not capable of the community. So just check out these cases.
of pecuniary estimation and hence, it is cognizable only by the Now, what happens if we have here an executory judgment and
RTC. In my opinion, I had to consider the kind of judgment, when you were able to get the writ of execution, its either the
because a judgment of money, to my mind, is an action, judgment obligee or judgment obligor against whom the
nonetheless, which is capable of pecuniary estimation, so that for judgment must be executed, died. So you have Sec 7 to answer
example a judgment of 1000000 has been partially executed and that.
what remained to be executed is 250000 by independent action, In case of the death of the judgment obligee upon application of
it is in my humble opinion, needs to be filed in the lower court his executor or administrator; In case with the death of the
because the 250000 is within the jurisdiction of the lower court judgment obligor against his executor or administrator or
and capable of pecuniary estimation. Let me tell you, we do not successor-in-interest. Please take note just for reference purposes
have jurisprudence on the matter; the general consensus except that actions against the executor or administrator are limited to
myself perhaps is that, an action for revival of judgment is an actions found or enumerated under Rule 87 as distinguished from
action no capable of pecuniary estimation, it is your take. To those which must be filed as claims against the estate under Rule
pursue my example that, on March of 1996, a party filed for an 86.
action for revival of judgment so this is, let us say March 05, 1996, There are several kinds of judgments and the execution of a
if the judgment is revived, we have a judgment totally distinct and judgment depends upon the nature of such judgment. The Rules
separate from the original judgment so that this revived judgment provide for execution of several kinds of judgment. Like for
is not the same as the judgment which was entered on January 01, example, a judgment for money. How do you execute a judgment
of 1990, this revived judgment of March 05 1996, is totally for money?
separate and distinct, hence, this judgment must be entered and The written execution upon issuance by the court by the trial court
supposed this judgment is entered on May 15 of the same year, is addressed to the sheriff for the said sheriff to implement the
from May 15 which is the entry of the revived judgment, May 15, same. So let us just consider, illustration to.. uh.. for you to
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understand the execution of a money judgment when a money always have an absentee judgment obligor and at this point since
judgment is rendered by the court and a written execution is the obligor who has control as to what of his properties should be
issued to implement the same money judgment. levied is not around hence it is now incumbent on the sheriff to
The sheriff goes to judgment obligor and gives him or furnishes supervise the kinds of properties to be levied to satisfy the
him a copy of the writ of execution together with the entry of the judgment.
judgment and informs him that he is collecting the money But the rule provide that the sheriff must levy only on personal
judgment. Suppose it is a judgment for 5oo,ooo pesos. The sheriff properties and once those personal properties levied on had fully
goes to the judgment obligor and says "Mr. Obligor I have here a or sufficiently satisfy the judgment thats it. he should stop. but if
written execution for 5ook pesos." The judgment obligor says, the personal properties that he found subject of his levy are not
"Wait a minute ill go to my room." and he gets from his baul 500k sufficient to fully satisfy the judgment then he can levy on real
in cash and gives that to the sheriff. Is there a satisfaction of properties.
judgment? No, because it was given to the sheriff. Personal properties are levied by taking actual custody of these
The case of PAL vs. PALEA is instructive of the ban. As long as it is properties and the sheriff puts them in custodia legis not only by
not given or as long as there is no manifestation of satisfaction of physically taking custody or actually taking custody but this must
judgment by the judgment obligee or judgment creditor then be properly receipted or properly documented.
there is no satisfaction judgment. So don’t give it to the sheriff. If Now how does the sheriff levy on real properties?
he give now to the judgement obligee and he acknowledges it This is just a matter of annotation he goes to the register of deed
then there is satisfaction of judgment. Suppose the judgment where the property is located and have the writ of execution
obligor does not have cash and says "ok, I'll write you a check." if annotated. The levy annotated on the title of the property if the
the check is to the order of judgment obligee once it is encashed property's untitled you know in the office of the register of deed
there is satisfaction of judgment. It can never be issued to the there is a book there of unregistered properties. So, whatever kind
order of the sheriff, the sheriff will run away. That will not be of properties.
satisfaction of judgment now if there is no cash neither is there So even if the property is located outside of the jurisdiction of the
check. Another way of satisfying or executing a money judgment court those properties they are found to be owned or the
is through garnishment. Garnishment. How do you garnish? You judgment obligor has rights over these real properties they can be
garnish not just the accounts, bank account.. but any debt or any levied on.
credit. That is why the rule says garnishment of debts and credit So a case or a judgment rendered by the RTC of Manila which
that will include bank deposits, financial interests, royalties, judgment is now under execution and the property of the
commissions and other personal property not capable of manual judgment obligor is found in Baguio City. Can that be levied? YES.
delivery in the possession or control of third parties. The sheriff goes to the RD of Baguio City and have it annotated.
So, if for example the writ of execution addressed to the sheriff After the levy on the properties, the properties are now in
and the sheriff brings that to the bank what should the bank do? custodia legis. For what purpose are these properties taken under
The bank should inform within the period of five days how much custodia legis? For purposes of selling them and the proceed from
money has the judgment obligor is keeping in his account and this those sales will be applied to the satisfaction of the judgment. So,
is by order of the court. The Bank Secrecy Law cannot prevail over that is the purpose.
this order of the court because there is an order for garnishment. But before the sale, otherwise known as auction sale, there are
And if the bank says, in our example of 500k pesos, "Well, the certain requirements to be complied with. To sum up just
judgment obligor has 1M in this, he sets aside this bank, sets aside remember the following: Notice, Posting, Publication.
the 500k and delivers that to the court or to the judgment obligee The first two requirements are mandatory in all kinds of sale or
as the case may be within ten days from notice. So that is auction sale or execution sale which is Notice and Posting.
garnishment. Publication is required only when what is under sale... under
Suppose there is no money in the bank, there is nothing to garnish, auction sale are real properties and this must be published in a
no debts, no credits. Now this time the sheriff now will undertake newspaper of general circulation. You find the rule in 15. Rule 15
the third way of executing the writ of satisfying the judgment Notice of Sale of property on execution.
through what we called levy on execution. What should the sheriff The notice must be given principally to the judgment obligor the
levy on? he should levy on real and personal properties of the posting must be done on any public place like the post office as
judgment obligor. Who has control as to what properties of the exemplified in the Rule like the bulletin board of the Court, like the
judgment obligor should he levy on? It is not the sheriff. But rather market. But these places are only suggested places, they are not
it is the judgment obligor himself who has absolute control as to mandatory. like the post office, now, who goes to post office
what of his properties should be considered as payment or as nowadays? So perhaps the judge can say "You post that at the
satisfaction for the judgment. Megamall" Perhaps. will that be compliant? Definitely, that will be
So, if for example the sheriff is in the house of the judgment a compliant. Only the problem that the notice must be taken
obligor and the judgment obligor is there in the house and it is away, torn or might be defaced, is very high. That is why
only for 500k pesos, The judgment obligor can tell the sheriff, "Mr. sometimes Judges do not do that. But anyway what im tryin to
sheriff just get one of my cars there one of my two cars you get establish is that the places mentioned in the rule are only
that 1995 toyota car that will satisfy if that is worth more than or suggested place - any public place. The church entrance, for
500k pesos and then the sheriff can no longer levy on the example, can be. Well, is there safety now in the church?
property. So, take note, Notice, posting and publication. Now when these
The problem is that whenever the sheriff goes to the house or are complied with the auction sale, sale on execution can now take
residence of the judgment obligor to levy on the latter's place. the Rules provide for a particular time. It must be within the
properties... the obligor is not around more often than not we hours of 9 in the morning to 2 in the afternoon. But, ah, this can
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be also changed or altered. This is only recommendatory. property; he does not own it. Now, what is the remedy? The
Provided, notice is duly given. Although it is unreasonable to remedy of the judgment obligee is to claim against the third party
conduct the auction sale in the middle of the night. But anyway claimant.
Once all of these are complied with, the auction sale takes place So this is another instance where the purchaser-judgment obligee
now. Where should it take place? Ordinarily, the Rules say in the has to pay because there is a third party claim. The rationale
court. When I say in the court it is because the properties levied behind that because the right of ownership over the property
on execution are capable of manual delivery they may be a simple under auction is not yet determined. So he has to pay.
office table or a refrigerator or a washing machine or television If later on it was determined that it is really the property of the
set. But if they are cars let's say 100 cars because the judgment judgment obligor then his deposit will be discharged. So this is the
obligor is Toyota Motors, you hold your auction sale where the levy on execution. When the purchaser who bids does not pay,
cars are kept in custodia legis so perhaps in a warehouse. So this what is the effect of that? From then on, he will be blacklisted. He
is a matter of notifying, this is a matter of notice, as to where the will be disqualified from participating in the case.
auction sale is going to take place. When does the purchaser of a property in an auction sale become
Who can participate in the auction sale? ANYBODY can participate the owner of the property? If the property under auction are
in the auction sale except the court personnel including the judge, personal properties capable of manual delivery, it is immediately
sheriff, and his staff. they cannot participate in the auction sale. delivered to the proper… to the purchaser and the purchaser takes
The judgment obligor? Can he? Of course! But look, why would hold of the property which is capable of manual delivery after
the judgment obligor go there where in the 1st place he does not paying the purchase price. At that time, does he become the
have money that's why his properties were levied. How about the owner of the property? The answer is even more than the time.
judgment obligee? well, he is in the best position to be the Why? Because the ownership retroacts to the time of the levy. So
purchaser of the properties under auction. Why? Because he does he was the owner of the property from the time of the levy. So if
not have to spend money he does not have to shell out. So when the auction sale took place in December and the levy - the taking
the purchaser is the judgment obligee he does not have to shell of the property - was in August, the purchaser became the owner
out any money. of the property as of August and not just as of December when it
Suppose the judgment debt is 50ok pesos or let's put it in 1M. And was delivered to him. This is with personal properties capable of
then at auction is a Toyota Corolla and he wants that for... it is manual delivery because those which are not capable of manual
bidded at let’s say 800k pesos and to outbid the highest bidder, delivery, and more particularly real property, has a different rule
he says "ill bid it at 850k pesos" so he gets the car. Does he shell on the matter.
out anything? No! Because the judgment debt is 1M. In fact, he When real properties are the subject of an auction sale, and there
can still collect P150,000 because his highest bid - the highest bid are purchasers, the highest bidder purchases the property; does
- which he put up was only for P850k. So in many instances, it is he become the owner of that real property when he pays the
really the judgment-obligee who is at the auction site because he purchase price? The answer is NO.
would like to be. He does not have to shell out something because When does the purchaser of the property become the owner of
it is like getting money from his left pocket an putting it in his right that property? Only when the title over the property is already
pocket. consolidated in his name. And the consolidation takes place only
In what instances may a judgment obligee as the highest bidder after the expiration of the period of redemption. And when is… or
still pay? what is the period of redemption? The period of redemption is
There are two instances. The first instance is when his bid is higher that one-year period from the registration of the Certificate of
than the judgment debt. Suppose he likes the car so much because Sale because if real property is the subject of auction it is
it is a brand new Toyota Corolla and the judgment debt is only 1M mandated by the Rule that the same must be covered by a Deed
and that car for example is still worth 1.2M so he bid at 1.1M. of Sale and the Certificate of Sale must be registered with the
Should he pay? YES. He should pay the excess of the judgment Register of Deed of the place where the property is located.
debt as bidded. So, he pays only 100k because the 1M will be Now, upon registration, you count, the one-year period is counted
equated to the judgment debt. therefrom within which the property may be redeemed. Within
The other instance where the purchaser-judgment obligee is that one-year period, the property may be redeemed. And who
required to pay is when there is a third-party claim. Now, this can redeem that property? There are two persons. two kinds of
third-party claim which you'd find under Sec. 16 of Rule 39 has the persons who can redeem that property. You find that in Sec. 27 of
same nature of third party claims which you find in the provisional Rule 39.
remedies of preliminary attachment and replevin, Rules 57 and 60 The first kind of person is the judgment obligor or his successor-
respectively. in-interest. His heir or successor-in-interest. The second kind is the
So that when a third party , not a party to the case, of course, person otherwise known as a redemptioner.
executes an affidavit of third party claim and delivers that affidavit At this point,let me tell you that you have to understand the
of third party claim to the sheriff. The sheriff is bound to deliver meaning or the concept of a redemptioner. Possibly, memorize
that to the third party claimant unless the judgment obligee posts paragraph b of Sec. 27 of Rule 39 where it is the definition or the
a bond to secure the judgment, or rather to secure the third-party description of a redemptioner.
claimant. A redemptioner is one who has a lien subsequent to the lien under
Please take note that it is not the third-party claimant that posts which the property was sold. The sale on execution that we are
the bond but rather it is the judgment obligee that posts the bond talking about - the lien here is the levy on execution. And from the
to secure the third party claimant. date on the levy on execution , the person who dealt with the
Now suppose, the third party claimant's claim is frivolous. Because property from the time of the levy until it was sold are lienholders
it is untruthful. he has not really.. He has no right over the subsequent to the lien under which the property was sold.
2017: AUSL BarOps Remedial Law Team Page 46 of 109
Because if you're lien was prior to the levy on the property then So, you count sixty days. It can be redeemed by another
you are not a redemptioner. Only those whose lien are redemptioner from December 15, count sixty days, it can still be
subsequent to the lien under which the property was sold. redeemed by a redemptioner. How about the judgment obligor?
Consider, in relation to this, you have to correlate this with sale on With more reason. Because he is the owner of the property that
attachment. Under Rule 57, Preliminary Attachment, a provisional he has also sixty days or beyond the one year period in this
remedy, you can apply for a Writ of Preliminary Attachment at the example from December 15 up to February 15, rough estimate,
commencement of the action. So if the action commences or was the property can still be redeemed by any redemptioner or with
commenced in 1990; then in 1990 you can already ask for a writ more reason by the obligor.
of preliminary attachment if the action was adjudged or a Why is there successive redemption.. in the Rules? Because the
judgment was rendered on the action in 1990… or year 2000, in a more redemptions there are, the better for our economy. And the
ten-year period. It was commenced in 1990 and it was… judgment better for compliance or fulfillment or payment of obligation. with
was rendered in year 2000 - it is a ten year period. Remember that just one property, many obligations are paid for and nobody
the attached property secures a favorable judgment so if the losses. Everybody wins. Because for every redemption, for every
judgment was rendered in year 2000. In that span of one year, period, for every period of time alloted by the Rule, the
there may be some person who took interest in the property redemptioner pays 2%. So if the redemption period again is from
which was already a subject of a writ of preliminary attachment one year, or January 31 or January 1 to December 31, and a
and these who had lien on the property after the issuance of the redemptioner redeems it on January 15 then he pays 2% over and
writ of preliminary attachment are lienholders subsequent to the above - 2% interest over and above - the price, the purchase price
lien under which the property was sold because at this instant, you of the property as well as other expenses like the attorney's fees,
are not selling the property pursuant to levy on execution but you like costs, so on and so forth. Plus two percent interest. So that
are selling the property in auction pursuant to a levy on the next redemptioner whether he redeems that within the period
attachment. When did the levy on attachment take place? Year of five days.or within a period of - whether he redeems that on
1990. So, if there are other attaching creditors, mortgagees over the fifth day from the last redemption or on the 55th day of the
the same property after the writ of preliminary attachment was last redemption, he pays 2% interest from the last purchase price.
issued - they are REDEMPTIONER. Because their liens are As far as the judgment obligor is concerned, he pays only 1% per
subsequent to the lien under which the property was sold. month. So in our example, if the obligor redeems the property in
So, these two kinds of persons may redeem the property sold on May of that year, he pays 5%. That is a five-month period. If he
auction within the period of one year from entry of the judgment. redeems it by December, he pays 12% of interest. So that is
Entry of the judgment. redemption by a redemptioner or the judgment obligor or his
Now, if the judgment obligor redeems the property, there will be successors-in-interest.
NO further redemption. Why? Because the property has returned After the period of redemption has expired, there is consolidation
to its owner. It is the judgment obligor who is the owner of the of title and from that date of consolidation the purchaser or the
property. So it has returned to him, it is now in his possession. He redemptioner as the case may be, becomes the owner of the real
is again the owner of the property. So who can get that from him? property. So, that is as to redemption.
No one can. And the law is protecting him as owner second time Suppose, after all this auction sale, after all this levies on the
around of the property. so once the judgment obligor redeems the properties, the judgment debt has not been fully satisfied. What
property, no further redemption. And the judgment obligor has all are the other remedies of the judgment obligee to recover fully
the time.. in all instances, i mean, has one-year period from the the judgment debt?
registration of the Certificate of Sale, he has one-year period The Rule provides for examination of the judgment obligor under
within which to redeem the property. Rule 36 and then examination of the obligor of the judgment
Let's consider the registration of the Certificate of Sale again as obligor under Rule 37. Then another remedy is under Rule.. under
January 1. So he have until December 31 of the same year within Section 41. So Section, I'm not..[????] Section. not rule. Sec. 36,
which to redeem. Sec. 37, Sec. 41 and Sec. 42. These are the remedies. 41 -
Suppose the judgment obligor did not redeem it, but a Appointment of receiver, 42 - Sale of Ascertainable interest. These
redemptioner redeems the property in January 15. Then the are the remedies.
judgment obligor can still redeem that up to December 31 Now, if all... if all these remedies have been availed of and still the
because he has one-year period. How about a redemptioner? A judgment was not fully satisfied. Well, blame yourself. because
redemptioner only has sixty days in which to redeem that from you gave a loan to someone who could not pay you. You might just
the last redemption. as well legally kill yourself. So this has.. These are about the
So if what... If it were January 15, that will be sixty days, will be execution.
about March 18 or March 17 depending on whether it is a leap Just a note. When we took up Section 6 which is execution by
year, February, is a leap year or the year is a leap year because independent action which means revival of judgment. Please
there are 28 days in February, but what I'm trying to point out is don’t confuse that with revival of judgment you file under Rule 34.
that there is only a sixty-day period from the last redemption The revival of judgment here under Rule 34, is a prerogaritive or is
within which redemption, another redemption, can take place by the privilege of the purchaser of the property. The purchaser of
a redemptioner. But as far as the judgment obligor is concerned, the property. Because after paying the purchase price, he did not
he has the entire one-year period. get the property, for one reason or the other and so one of his
Suppose, our one year period is from January 1 to December 31. remedies is also revival of judgment in his name so that he can
Suppose on December 15, it was redeemed by a redemptioner. execute the judgment.
Can it go beyond the one year period? The answer is YES. And, uh, the last two sections here need clarification. Written
clarification. But I have already discussed res judicata under Rule
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16, Motion to Dismiss is a ground for Res judicata. Here under Se. Remember that it cannot be taken cognizance of by the inferior
47 of Rule 39, we've also res judicata. Paragraph 1 here of Res courts because support is an action which is incapable of
judicata refers here to estoppel by judgment while the last pecuniary estimation. Therefore, support pendente lite is only
paragraph refers to conclusiveness of judgment. Just check that cognizable by the RTC because support to which it adheres is
please. incapable of pecuniary estimation. Exception: In criminal cases.
Then, you have the last section which is Sec. 48, this part is Because the present rules on criminal procedure speaks that once
important. this is also bar material. this is enforcement of a foreign a criminal case is filed, the civil aspect is deemed instituted with it
judgment. The general rule is that, any judgment rendered under Rule 111.
outside the Philippine jurisdiction is not and cannot be Hence, if the action is criminal in nature but cognizable by the
implemented in our country. We are sovereign on our own so inferior court and the prosecution includes the civil action for
what is the remedy? The remedy is Sec. 48 of Rule 39 which is support, then support pendente lite can be taken cognizance of by
enforcement of a foreign judgment. the inferior courts.
If A and B, for example, are American citizens now who were
formerly Filipinos and they foreign out to the United States and Example: complaint for seduction which is cognizable by the
let's say the County Court of California or San Mateo California inferior courts. And together with that you pray for the
rendered a judgment relative to properties of A which are found acknowledgment of the child (suppose merong anak) and you pray
in the Philippines. That judgment is beyond our jurisdiction. That for support pendente lite. In this instance the support pendente
cannot be implemented here in the Philippines. Your remedy is to lite is taken cognizance of the inferior courts.
file an action to enforce that judgment here and this is an action
not capable of pecuniary estimation then it is cognizable by the In Receivership: both inferior courts and RTC.
Regional Trial Court. And what is the venue? The petitioner or the
plaintiff's residence because this is a personal action even if it In Replevin: both inferior courts and RTC.
concerns real properties then it is a personal action, venue must In Injunction: both inferior courts and RTC.
be the residence of the plaintiff or any of the plaintiff or that of
the defendant or any of the defendant at the option of the In Attachment: both inferior courts and RTC depending now on
plaintiff. the principal action to which the provisional remedy attaches.
Final word. There are certain properties which are exempt from
execution. The enumeration in Rules are 13 kinds of properties REQUIREMENTS for PROMREV
and you find it in Sec. 13 of Rule 39. So, triple 3. Section 13, 13 GR:
kinds of properties, in Rule 39. Just check it out. 1. Affidavit
Thank you and Good day. 2. Bond
Provisional Remedies Peculiarity of rule 57 (Writ of Attachment). Unlike all other
bonds which answer only for damages, it is only in Rule 57
AIRRS will the bond answer for the judgment. So you underline the
Rule 57: Preliminary Attachment word judgment. Kasi dito mo lang makikita yan sa Rule 57.
Rule 58 Preliminary Injunction Vs.
Rule 59 Receivership Because in Rules 58-61, the bond answers for damages only.
Rule 60 Replevin While in Rule 57, the bond answers for judgment.
Rule 61 Support Pendente Lite Ano'ng ibig sabihin nun?
Sometimes damages can be separated from judgment. But
Nature of PromRev in most instances hindi. Let's say defendant is ordered to pay
Being provisional remedies, they are dependent, contingent, or P20,000 as principal obligation and damages of P10,000, so
adhere to a principal action. So that you cannot find an action for hiwalay. In other cases the bond or counter bond only
preliminary attachment. It must always be adhered to the answers for the P10,000.
principal action. But in preliminary attachment, the bond or counter bond
answers for the P30,000, judgment and damages.
Bo. Conciliation proceedings – n/a to PromRev
Do not be misled therefore by cross-references to
Jurisdiction over these provisional remedies Section 20 by the other rules.
GR: where the principal action is pending Do you notice that? di ba puro cross-references. Section
EXPN: SPL – cognizable only before the RTC since incapable of 8 of Rule 58, Section 9 of Rule 59, and Section 10, Rule
pecuniary estimation 60 cross-refer to Section 20, Rule 57. The cross-
EXPN to EXPN: In crim cases When there is joinder of causes of reference is correct but the difference is that the bond
action and counter bond in all these provisional remedies
Say: Seduction is cognizable with the MTC because of penalty answer only for damages. But in writ of preliminary
imposable. Support and SPL can be filed before the MTC with attachment because of its precedent section which is
acknowledgment of a child. Section 19, which answers for any judgment.


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How do you secure, aside from these requirements, the writs for Normally attachment is for big cases. It would be impractical to
these provisional remedies? avail of attachment for small cases since you will spend more than
A: what you will get.
1. Preliminary attachment, you may secure it ex parte. Although
the writ cannot be implemented ex parte but it can be issued Purposes of Writ of PA.
ex parte. 1. Secure satisfaction of the favorable judgement not to
2. Preliminary injunction, as a general rule you cannot secure it secure favourable judgment. The latter is for the court to
ex parte under Section 5, Rule 58, although in cases of decide.
urgency, that injunctive relief for a period of 72 hours can be IF you secure the property the satisfaction of the
granted summarily (meron pa din notice and hearing for due judgement is almost assured. You are not going to
process). That is how stringent in applying for injunctive relief. sale on execution but on sale on attachment.
3. Replevin, you cannot get it ex parte.
4. Support pendente lite, there is a peculiar provision under 2. Forcing the adverse party to come into the negotiating
Section 2 (Rule 61) wherein the respondent, within a period table. – this is unwritten purpose and not in the Rules.
of 5 days from notice, is bound to file his comment. And if he Say: You a businessman you can attach the property of a
does not file his comment, the case will be heard on the sari-sari store. The sari-sari store shall be forced to
application only (Section 3) within 3 days. negotiate to avoid attachment.

How do you discharge the writ once the writ is granted or issued? 3. To covert the action strictly in personam to quasi-in rem.
A: The court acquires jurisdiction over the res.
Preliminary 1. Sections 5, 12 2. a motion questioning Once the court acquires jurisdiction over the res you could
attachment and 13 of Rule the propriety or proceed over the case even if no jurisdiction over the
57. Cash regularity of the defendant.
deposit or issuance of the writ Limitation: Once you execute judgment you are limited only
counter bond; (Section 13) as to the res since the court has no jurisdiction over the
or defendant.

preliminary counter bond* 1. Only remedy: 2 Basic Requirement of the Writ of PA (Sec 3, R 57)
injunction does not file a motion 1. Affidavit
replevin discharge a writ questioning the NOTE: The 4 requirements must be contained in an affidavit.
receivership of preliminary propriety or So your affidavit is pro forma or insufficient if it does not
injunction, regularity of the allege these 4 basic requirements as enumerated under
replevin or issuance of the writ. Section 3.
support No Bond. 4 REQUIREMENTS (GECS)
pendente lite SPL was discharged because there is no basis a. Valid grounds – as enumerated in section 1 Rule 57. Note
to stand with these grounds are exclusive! (MEMORIZE!!!)
* The counter bond, in effect, automatically discharges the writ.
6 GROUNDS (Sec 1, Rule 57) (SETIRO)
Section 5 speaks of a cash deposit or a counter bond. The counter A-C – action for vs. D-F action against
bond will answer for the judgment. The cash deposit will also i. Action for the recovery of sum of money and
answer for the judgment, damages, excluding moral and exemplary damages,
arising from law, contracts, quasi contracts, delict
Claim for damages – Sec 20, Rule 57 – a general provision and quasi delict directed against a party who is to
applicable to all PROMREV except for SPL. Equivalent to SPL of depart from the Philippines with intent to defraud.
claim for damages is restitution or reimbursement.
ii. Action for the recovery of money or property
PRELIMINARY ATTACHMENT (RULE 57) embezzled by the defendant who is a public officer,
officer of a corporation, attorney, factor, broker,
- Putting the property under custody of the court agent, or clerk.
there must be a fiduciary relationship between
When to file the applicant and the respondent.
At the commencement of the action or any time before
entry of judgment iii. Action for recover of possession of property unjustly
taken against a party who removed, disposed, or
Jurisdiction: does not disclose it, or who hid these properties
EXPN: Court that has jurisdiction over the case. Hence if there is a iv. Action against the person who is guilty of fraud in
case before the MTC you file writ of PA before the MTC. contracting a debt or incurring obligation upon
which the action is brought or in the performance
2017: AUSL BarOps Remedial Law Team Page 49 of 109
• In the first two stages, the court need not have
v. Action against a person who tries to dispose the to acquire jurisdiction over the person.
property guilty of fraud However, in the third stage the prior or
contemporaneous service of summons over the
Say: person of the defendant is necessary for the
A businessman who was engaged in buying and court to acquire jurisdiction over the person of
selling. So when he owed somebody a sum of the defendant.
money, that somebody filed a case against this
businessman and applied for a writ of preliminary Here, SC ruled that the implementation of the writ of
attachment on the ground that the businessman was PA was wrong since there was no earnest effort in
disposing his property in fraud of creditors. serving summons despite the fact that Mangila is
Ruling: Writ is not proper. He is disposing his outside the country.
property in line of his business precisely he is in buy When the writ was implemented Mangila was
and sell. If he does not dispose his property, how will already in Guam. She was here before the writ was
he ever be able to pay you. The attachment was implemented. The post service after her return
invalid. would not cure the jurisdictional error.

Vs Chuidian v. SB (BAR MATTER)

Doctrine: Discharged of prelim attachment and the
A businessman who had a sari-sari store. A case was property under the writ becomes in custodia legis to
filed against him for a sum of money and a writ of await satisfaction of judgment.
preliminary attachment was applied for. The
businessman is selling the goods in the middle of th Chuidian is a crony of Marcos and was able to secure
night. a loan from Phil Guarantee in million of dollars
Ruling: Writ of preliminary attachment was validly alleging to be used in the Phils. Business but actually
issued because there was disposal of the property in was invested by Chuidian in Silicon Valley, California.
fraud of creditors. Even if the disposal was made in For failure to pay, they entered into a compromise
line of his business, the SC held that the disposal was agreement. A letter of credit was issued in favour of
made at midnight and through the backdoor. So Chuidian granting him letters of credit which he
there is fraud. could withdraw USD100K per month.
After EDSA revolution, PCGG filed a case before SB
vi. When the defendant is outside the country and who to recover the letters of credit. PCGG applied for a
can be served the summon through publication. writ of PA which was issued by SB.
This ground is peculiar because it speaks about his When Chuidian returned to the Phils, he filed a
situation or residence. So in this instance, any person motion assailing the issuance of the writ of PA under
who left the country and temporarily reside there, section 13.
you file an action and you can apply for a writ of SB ruled the following against him
preliminary attachment. 1. Not around
But take note of the last phrase there and those who 2. Committed fraud in the performance of the obli
may be served by publication. So you cross-refer 3.
that to Section 15-17 of Rule 14 on Summons, who
must be served through publication. It applies only Issue: WON SB abuse its discretion
on actions in rem or quasi in rem. Actions which are SC: When the cause of action is grounded in the
strictly in personam, summons by publication is not same ground as in the application for the writ of
allowed. prelim attachment you cannot discharge the writ of
PA through a mere motion under Section 13
Note: otherwise you are resolving the principal action
One of the objectives of a writ of preliminary through a mere motion and this is going through the
attachment is to convert an action which is strictly in back door.
personam to an action quasi in rem. Once you Here the principal action is recovery of sum of
convert it, then you can now serve summons money due to fraud which is the same ground as the
through publication. writ. Hence, if the SC resolved the writ, as if they are
deciding the principal case. SC ruled that the only
CASE DOCTRINES remedy is post a bond under Section 12.
Mangila v. CA (2001 BAR)
Doctrine: There are three stages in the Writ of PA 3 Stages in Writ of PA
1. Issuance of the order 1. Issuance of the order – no need of jurisdiction
2. Issuance of the writ over the defendant
3. Implementation of the writ 2. Issuance of Writ - no need of jurisdiction over
the defendant

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3. Implementation of writ – court must acquire b. Value of the prop. Sought to be recovered must be equal
jurisdiction after the defendant. to the sum prayed for in the order less all other counter
NOTE: The first two stages may be done ex parte. But Meaning if you are securing P1M be sure to attach
the last stage must always be with prior or property at least P1million. In actual case you attach
contemporaneous service of summons. Hence, you property much more than the obli.
can avail of paragraph f of Section 1 of Rule 57 in If the property is not sufficient, attach more property and
converting the action in to an action in rem. Because there is no limitation as long as the order prayed for must
the writ of preliminary attachment can be issued be equal to the order.
even without service of summons. c. There must be a valid cause of action
d. There must be no sufficient security
In the application for the writ of preliminary If there is security there is no need of attachment since
attachment, there are three stages. Yung una hindi already secured by mortgage.
mo kailangan ng summons. So you can already apply,
on the basis that the defendant is outside of the Say: Prop is 2B and the claim is 1b. The remaining P1B can
country. You apply irrespective whether the still be attached by other creditors subsequent to your
summons can be issued or not because it can be lien.
issued ex parte. But dito lang sa issuance. Pero pag
hawak na yan ng sheriff, i-implement na niya under
Section 7, levy on attachment, hindi ka pwede mag- 2. Bond – Applicant must post the bond that is duly accredited
levy on attachment if the court has not acquired otherwise it is null and void. Even the writ is null and void.
jurisdiction over the person of the defendant. Kaya
nakalagay diyan, prior or contemporaneous. Prior is Bond is required of the applicant. Counter bond is required of
Mangila case. Contemporaneous sabay na ng pag the person against whom the application was filed. Deposit
implement ng writ of preliminary attachment ang can be cash either on the part of the plaintiff or the defendant
service of summons. as the case may be.

3 ways to lift Writ of PA Torres v. Satsatin (2009 case)

1. Posting of bond or cash deposit Doctrine: Bonding company must be accredited by the SC
2. Motion assailing the propriety of the issuance of otherwise the posting of bond is null and void which is fatal to
writ the grant of promrev.
3. Sec 5 – means to lift is through cash deposit or Sibling sold a property through an agent, Satsatin, worth
counter-bond – writ has issued but not yet P35million. However, Satsatin only remitted P9million to the
implemented Torreses. Hence, they sought to recover the balance and in the
Vs. process they ask for the issuance of the writ of PA. Torresses
Sec 5 – means to lift is through cash deposit or learned that after the sale of the property, Satsatin was able to
counter-bond – writ has issued and acquire numerous properties and posted the bond.
implemented Satsatin questioned the bond since it was posted before the
Vs. issuance of writ. Satsatin also posted the counterbond.
Section 13 – motion to lift the writ assailing the
propriety of the issuance. SC ruled that the bonding company is not accredited by the SC
and only accredited in Makati, Pasig and Pasay and not
Note: accredited in Dasmarinas Cavite where the property is located.
A. The bond is different from cash deposit. Hence, the bond is nothing and the issuance of the writ of PA is
However, you cannot use property deposit to null and void.
discharge the writ since it is not in the Rules.
B. If you avail Section 12, you can still apply section CLAIM FOR DAMAGES
13 even you already availed of section 12 since - ONLY Before finality of judgment otherwise claim is deemed
Sec 12 is not a bar to avail Sec 13. In Sec 12 waived.
immediately the writ is discharge and you - Not including moral and exemplary damages
recover possession of the property again. - Unlike in other promRev, it is only in Writ of PA that the bond
However, you can still avail Section 13 to answers not only for the damages but also for the judgement
question propriety of the issuance of the writ. unfavourable for the applicant.
The purpose of Section 13 is to release the bond
not the return of the property since already NOTE: Common error of the students think that since the 3rd
released using Section 12. party claimant files his claim, then the 3rd party claimant should
file for the bond. Atty. Brondial corrects that it is not. The applicant
for the writ who should file the bond without prejudice, of course,
to a filing a case against the 3rd party claimant who filed a 3rd

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party claim frivolously and fraudulently. And that case can be 1. 72-HOUR TRO – effective upon issuance
threshed out in the same action or even in a separate action.
2. 20-DAY TRO- effective upon receipt of notice.
Principal action – Injunction May the court call for the hearing prior to issuance of TRO?
Seldom will you find an action filed specifically for injunction Yes. It is discretionary upon the court even if the court can grant
only. It is coupled always with other causes of action. Like the TRO ex-parte. So court can conduct a hearing and it is not
damages, or recovery of property with injunction and prayer grave abuse of discretion.
for preliminary injunction and TRO
Now the executive judge of the multi-sala court can grant the TRO
Jurisdiction ex-parte of conduct a summary hearing. Hearing is discretionary
GR: RTC only not ministerial.
XPN: If on appeal, to the court where the case is pending
While injunction can be availed of in any court, including the SC, Status quo – the last peaceful undisturbed situation.
but if you read cases and statements to the effect that you cannot
file for an action for injunction to the SC it is because it is not a 3 REQUIREMENTS FOR PI OR TRO (EVI)
court of original jurisdiction over this action except certiorari, 1. Right in esse or substantial and existing actual right
prohibition, mandamus, quo warranto, habeas corpus Say: Your parents told you that their property shall be
sold since they are already old. But you object since you
EXPN: Joinder of causes of action. have a share in the inheritance.
Say: If you join with other civil action it depends. Like CPM, You cannot file prelim injunction since your right is not in
they are concurrent jurisdiction in RTC, CA, SB and esse yet. You only have an inchoate right.
2. Such right was violated or threatened to be violated
Territorial Effect:
If issued by the RTC – only within its jurisdiction Idolor v. cA
Vs. Loan secured by mortgage and was not paid.
If issued by CA/SB/SC – entire country Restructuring of loan was made however Idolor still failed
to pay. Forclosure of REM was made and the title was
Contrast this with Search Warrant – consolidated after the right of redemption. One day after
If issued by RTC of QC and MLA – valid in the entire country the consolidation. Idolor moved to invoke right of
If issued by other RTCs- only within its jurisdiction redemption.
If issued by SB/CA – entire country Ruling: No more right in esse, hence, writ of PI cannot be
1. Prohibitory – seeks to maintain the status quo (wla gagalaw) Bristo-Mayers Case
2. Mandatory – seeks to return to the status (ngalaw na or Doctrine: The purpose of the bond for the issuance of any
ginagalawan p din). provisional remedy is not to answer the satisfaction of
- Applies only when the act is continuing act. Since if it has judgment but merely to answer for damages the adverse
been done it cannot be undone anymore. Remedy is ask party may incur due to the issuance of the PromRev.
for damages.
Here, even if there is still a pending labor case for illegal
Proper remedy if the house is already finished construction: dismissal it is proper to release the cash and surety bond
1. Destruction of the house; or posted by Bristo-Mayor since the principal action of
2. Only damages injunction was already denied by the court. Hence, the
provisional remedy of prelim injunction automatically
Example: dies vis-à-vis there’s no more reason to retain the cash
You go home tonight finding the home in total darkness because and surety bond posted by Bristo Mayer.
electricity was cut.
Use: Mandatory injuction – return to status quo (ibalik kuryente) Jenosa v. Deloriarte
Vs. Doctrine: You must come to court always with clean
When you go home there is notice of disconnection. hands including in the application for writ of PI.
Use: Prohibitory injunction – maintain the status quo (retain the
electricity). Facts:
HS students who are members of frat were expelled.
GR: Notice and Hearing is mandatory prior to Writ of PI Parents and the school agreed that instead of expulsion
Because of its urgency, the Rule provides TRO to deter the possible the students shall leave the school
happening of adverse event. Later on Jenosa questioned the agreement assailing
violation of rights and praying for mandatory injunction
2 KINDS OF TRO to admit the students

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Ruling: Aside from academic freedom and estoppel, you his property in satisfaction of the judgment, or otherwise
must come to court with clean hands. Since parents carry the judgment into effect;
entered into a compromise writ of prelim injunction is d. Whenever in other cases it appears that the appointment of
not applicable. a receiver is the most convenient and feasible means
Look Par D of Sec 1
3. Irreperable injury - The violation or threatened violation
will result in irreparable damage and injuries. Purpose:
Take note of 3 words (PAD)
1. Preliminary injunction is preparatory to injunction. 2. ADMINISTRATION – because the prop is mismanaged and
2. TRO is preparatory to preliminary injunction. And within that it might get lost, materially injured hence you need to
TRO is the 72 hour period of the TRO. preserve or administer it
Preliminary injunction has no time frame. After trial that can
become permanent. But remember that a preliminary injunction If Receivership is called for: ALWAYS REMEMDER PAD.
is a provisional remedy attached to injunction. So when a
preliminary injunction has become permanent, it means that you Who may be appointed?
already won the case of injunction. But not the TRO, because the Not necessarily the applicant. It is not a guarantee that simply
TRO is preparatory to preliminary injunction. That is why there is because you applied for the appointment you will be
a time frame in the TRO which is 20 days in cases of the RTC and appointed. It is discretionary on the part of the court.
MTC and 60 days of CA. A receiver is not necessarily an individual person, it may also
be a corporation.
RECEIVERSHIP (Rule 59) It is not only in replevin that the bond is called for twice, it is also
applicable in receivership!
Principal action – Receivership
PromRev – Appointment of the Receiver 2 Types of bond
1. Applicant for the appointment of the receiver
When to file: By mere application damage may be incurred already.
commencement of action even after the execution of
judgment Say: A depositor may apply for the appointment for the
Why this long? receiver of the bank (BDO). The mere fact you apply for
Because the property subject of the action might be injured, the appointment, before the receivership is issued you
dissipated or lost. So that at the time you will deliver it the must file a bond. Mere application somehow damage the
property is remains in-tact. name of the bank.
It has the longest time of all the types of promrev.
Must be verified petition (under oath)
2. Appointment of the receiver
If the applicant is the same person the court may
dispense posting of new bond.
EXPN: Joinder of causes of action it can also before the MTC, etc.
If the appointed receiver is not the same person as the
applicant, posting of bond is mandatory!
Grounds for the Application for Appointment of Receiver
Sec1 Rule 59
a. When it appears from the verified application, and such other Koruga v. Arsenas Case.
proof as the court may require, that the party applying for the Doctrine: Jurisdiction over the application of receivership for the
appointment of a receiver has an interest in the property or financial institution is the Monetary Board of the BSP not the
fund which is the subject of the action or proceeding, and that regular courts pursuant to New Central Bank Act. For other
such property or fund is in danger of being lost, removed, or entities, you may go to the regular courts.
materially injured unless a receiver be appointed to
administer and preserve it; Larrobis Jr. v. Phill Veterans Bank
b. When it appears in an action by the mortgagee for the Doctrine: Prescriptive period is not tolled during the receivership.
foreclosure of a mortgage that the property is in danger of Receiver has the duty to collect debts while in receivership. If he
being wasted or dissipated or materially injured, and that its stop collecting debts during that period how can the bank be
value is probably insufficient to discharge the mortgage debt, rehabilitated. When the bank is placed under receivership, the
or that the parties have so stipulated in the contract of bank cannot transact banking business like accepting deposits,
mortgage; etc. but the collecting of debts is not prohibited. This is provided
c. After judgment, to preserve the property during the under Sec 6 of Rule 59. Hence, failure to file action within the 10
pendency of an appeal, or to dispose of it according to the yr period the cause of action already prescribed.
judgment, or to aid execution when the execution has been
returned unsatisfied or the judgment obligor refuses to apply

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Spouses Larrobis secured a loan from PVB. During the pendency 1. That the applicant is the owner of the property claimed,
of the loan, the bank was placed under receivership. When the particularly describing it, or is entitled to the possession
bank was rehabilitated, the management found out that the thereof;
Larrobis has not paid the loan resulting to the foreclosure of the 2. That the property is wrongfully detained by the adverse party,
REM. alleging the cause of detention thereof according to the best
Larrobis invoked prescription since the bank filed a case after of his knowledge, information, and belief;
more than 10 years. The bank assailed that the prescriptive period 3. That the property has not been distrained or taken for a tax
was tolled during the period of receivership. assessment or a fine pursuant to law, or seized under a writ
of execution or preliminary attachment, or otherwise placed
Chaves v. CA under custodia legis, or if so seized, that it is exempt from
Doctrine: The appointment of receivership is not available for a such seizure or custody; and
simple collection suit. If the property is not lost, dissipated or 4. That actual market value of the property is stated in the
injured there is no ground for the appointment of the receiver. affidavit.


Say: You a buy a car in installment. The buyer is required to sign a
When there is no more reason for its existence it has to be
chattel mortgage in favour of the seller stating “the right to
judicially or extra-judicially foreclose the prop for failure to pay for
Therefore if the properties subject of receivership is no longer
at least 3 months”.
in danger of being wasted, lost, damage, injured or value
The mortgagee can ask for the issuance for the writ of replevin.
dissipated then receivership will terminate.
When the writ was issued you can immediately recover the car.
Replevin (Rule 60) Upon issuance of the writ, the sheriff may recover the car
– IMMEDIATE possession of the personal prop. anywhere it may be found. NO JURISDICTIONAL LIMITATION. Even
if the writ was issued in Manila and the car is in Mindanao the
Principal Action – Recovery of possession of personal property sheriff can still recover the car. Due to its nature the personal
property can easily be transported.
When to file – at the commencement or before the answer
Why before answer? Say:
When an answer is filed issues are joined and because issues A sold a lot to B, then B caused the titling of the property
are joined, the court already knows whether the applicant is fraudulently in his favor can A ask for recovery of the property
entitled to the ownership or possession. So hindi na igagrant being entitled to the recovery of the property?
ng court, kaya it must be before the answer because it is an No, because replevin only applies to personal property.
immediate remedy.
1. Bond – twice the value of the property.
Say: The car is P1million. If you seek to recover the car you must
obtain a bond of P2million.
MTC or RTC depending upon the value of the property because
When you speak of the bond, it is not cash deposit but merely a
technically replevin is only a provisional remedy.
surety bond. You are only paying a premium not the entire value
of the prop which is between 3-15%. Hence, if the car is P1 million
Note: only receivership may only be a principal action but replevin the premium is only 200K if the premium is 10%. Hence, you can
will always be a provisional remedy. recover the car by merely paying 200K (bond twice the value) and
not paying the cold cash P2M.
- Only allowed before answer. (the shortest time of all
promrev) Why 2x
The issue is that you are entitled for the possession of the car First amount – for the value of the property
hence it is only before answer. 2nd amount – for the damages

Note: Once the answer is submitted, the issues are joined. Orosa Doctrine: (Sec 9 of Rule 60)
Hence, there is controversy who is really the owner and the You cannot recover the car and the value of the car otherwise it is
court will have to hear both sides and the writ of replevin is unjust enrichment.
n/a. It is unfair for the court to issue replevin upon answer Facts:
since there is already justiciable issue. Orosa bought a car, after 6 months a writ of replevin was filed
against him. Orosa contested and sued the applicant for recovery
- Opposite of redemption since the latter is only real prop. and damages.
- Even if you are the owner you can apply for replevin The lower court ordered the return of the car and its value
Ruling: It is in alternative. You either get the value of the car or the
POSSESSION – holding of a thing and enjoyment of the right car itself. Note that judgment must be in the alternative.
2017: AUSL BarOps Remedial Law Team Page 54 of 109
2. Sheriff to keep the personal property for at least 5 days on her own pocket but was denied by SMART since the car was
otherwise he is administratively liable. only given to her due to employment.
- 5 day period is mandatory, even if you put up a redelivery Action for recovery of possession with prayer for writ of replevin
bond but beyond was filed in RTC of Makati. Astorga moved to dismiss the case for
the 5 day period it will not have the effect intended for. lack of jurisdiction since there is a pending case before the NLRC
due to ER-EE relationship. RTC granted SMART but was reversed
Purpose of the 5-day period: by the CA saying had it not been for the fact that Astorga was
a. To determine the sufficiency of the bond otherwise it employed the car cannot be granted be granted to her. Hence RTC
must be returned to the possessor. has no jurisdiction for application of writ of replevin.
Note: If bond is insufficient the court must ask the J. Nachura said that it is no longer an ER-EE relationship but
applicant to satisfy the insufficiency of the bond, and only already a cr-dr relationship since she was already dismissed and
when the order comes out and there is still no there is no more ER –EE relationship.
satisfaction of the insufficiency of the bond then the
property shall be delivered to the person to whom it was How to discharge the replevin
taken by the sheriff. 1. Counter bond or redelivery
2. Section 13 : questioning the propriety of its issuance
b. await the possibility of posting the counter-bond or
redelivery bond. Agner Case:
Demand is not necessary prior to issuance of replevin. Due to the
Note: What is in the Rules of Court is mere bond. But the correct nature of the personal property the demand will only make the
term should be a counter bond or redelivery bond. replevin futile since the possessor of the property can hide the
property after such demand.
Hao v. Andres (importance of 5-day period)
The sheriff immediately deliver 6 cars to the applicant and due to BPI CASE:
negligence lost the 3 cars in his custody. It does not follow that once writ of replevin was issued you already
Facts: lose your right to collect sum of money. Writ of replevin gives you
The writ of replevin for 20 cars. Sheriff recovered only 9. Within an alternative: whether to execute the writ of replevin or file
the 5 day period the 3 cars lost when certain Nonoy entered the another action for the collection of sum of money. Filing another
property and made a key duplicate. action is not multiplicity of suit since ROC provides such
Ruling: Sheriff was suspended due to gross negligence. alternative.

3. Third party claim (Section 7) SUPPORT PENDETE LITE (Rule 61)

If there is a third party claim then the sheriff shall deliver the
property to the third party claim. Principal Action - Support
Remedy of the applicant: Jurisdiction –
Posting another bond equivalent the value of the property. GR: RTC since it is incapable of pecuniary estimation.
Hence, the applicant shall deliver 3x the value of the property. XPN: Crim cases – civil action is deemed instituted in crim case in
order to avoid multiplicity of suit.
Navarro v. Escubido XPN to XPN: Reservation, prior institution
Doctrine: There is no necessity for the demand to recover
possession of the car. It is contradictory to the very nature of the Venue: since it is a personal action: where the plaintiff resides or
writ of replevin. If you required demand then the car will be where the defendant resides or wherever he may be found at the
immediately lost. option of the plaintiff

When to file - commencement of the action or at anytime prior to

Smart Communication v. Astorga (POTENTIAL BAR) final judgment
Doctrine: ER-EE relationship can be converted into cr-dr
relationship upon dismissal of the employee as far as the writ of Hearing: Mandatory like in Prelim Injunction
replevin is concern.
Action of the court upon filing of the SPL
Facts: The court shall issue an order directing the respondent to file
Astorga failed failed in the re-evaluation performance. She was a comment within 5 days (not answer). And with or without
transferred to another department. She refused the lateral comment, hearing must be held by the court. The hearing
transfer resulting in dismissal due to insubordination. here is for the provisional remedy. (parang injunction, it
Illegal dismissal case was filed by the NLRC. SMART demanded for cannot be granted without a hearing. In preliminary
the return of the car under the car plan program. Astorga refuses attachment pwede, kasi it can be granted ex parte but it
to return the car and assailed that she will continue paying the car cannot be implemented without prior or comtemporaneous

2017: AUSL BarOps Remedial Law Team Page 55 of 109

service of summons). If he failed to appear, court grant an against him since it is policy of the state to protect sanctity of
order of support pendent lite, here it is only provisional marriage.

- Of all provisional remedies – SPL HAS THE UNIQUE Manahan was charged for rape and it produced a child resulting
- for support and support pindente lite. Judgment was rendered in
CHARACTERISTICS not present to other Prom Rev favour of a woman.
1. No Bond – only verified complaint SC Ruled: There is a part error in the decision since the lower court
2. Interlocutory order when granted by the court – only judgment requires recognition of the child.
instance that an interlocutory order is subject to SC said that the married man cannot be forced to recognized the
execution. child.
GR: Interlocutory order cannot be implemented since it
is not yet final De Asis v. CA
XPN: SPL when granted is subject to execution Doctrine: Res judicata is not applicable in action for support.
3. JUDGEMENT OR ORDER IN SPL or even judgment for Furthermore, under the Civil Code waiver of future support is not
support never becomes final hence no entry of judgment. allowed.
RES JUDICATA – never applies in judgement for support.
4. RTC has jurisdiction since incapable of pecuniary Action for support with support pendente lite was filed by the
estimation. woman against De Asis. Through intimidation of De Asis the
5. No damages in SPL but you may ask for restitution or woman moved for the dismissal of the case. After several years
reimbursement. SC: Res Judicata is not applicable for action for support.
Restituion = must be in the same action
Lim v. Lim
Reimbursement –c an be in the same or separate action
Doctrine: Support is not only the liability of the parents of the
child. If the immediate parent has no capacity to provide support
- N0 case yet that a husband filed for support. It is always a
to his child, the court may order the ascendants to provide
woman or child.
support depending on their capacity.

Say: A prostitute, Aya, working in a night club. Due to familiarity Spouses Lim stayed in the house of the husband. The parents of
with the taxi driver, Aya got pregnant. Aya filed action for support the husband were millionaires. Lim Jr. was employed in the
with prayer for support pendente lite before the RTC. company of Sr with a salary of P6k but all household expenses
ROC: Within the period of 5 days to comment. including the expenses of 3 grand children are shouldered by the
Note: Before answer there must be comment or opposition to the parents.
application for pindente lite. Failure to do so, the court will render The wife found the Lim Jr. has an affair with the midwife who’s
a judgement on the application for support pendente lite. This taking care of the mother of the husband. Wife left the house
judgement is not for principal action. Say: The RTC, pursuant to together with their 3 children.
the application of AYA, granted support pendente lite for the child Wife then filed a case for action for support with prayer for
for P5K monthly. support against the husband and the parents in law for the benefit
Afterwards, judgement for the principal action was rendered of the children and herself.
dismissing the case since the driver is not the father of Aya’s child. Issue: Are grandparents liable to give support to grandchildren?
What will happen then? Ruling: Yes, provided that you will be able to determine that the
Restitution shall be made not reimbursement. father cannot give sufficient support while the grandparents can
Who will restitute? give support.
Aya. She will return all the payment made by the driver plus SC directed that the P6k salary of the hushand and the balance
interest. shall be shouldered by the grandparents. However, only the
What about the reimbursement? grandchildren are entitled for the support not including the wife.
The true father shall reimburse Aya or the giver may directly ask
for reimbursement from the real father.
IS The action for reimbursement with the same action?
Heirs of Ruiz v. Ruiz
No. Issue on jurisdiction.
Note: Grandchildren are not entitled for support by the estate. IT
is only the widow and the children. In Lim v. Lim the action is
Note: Judgment for Support (not the prom rev of support regular support unlike in Heirs of Ruiz.
pendente lite) never becomes final. It can be increased or reduced
by the Court. In amending a judgment for support there are
Lim Lua v. Lim
Doctrine: Support is not only for sustenance of the receipient such
Two Criterias:
as food but also includes household expenses, medical needs, etc.
1. Capacity of the person to give support
It is more than the capacity rather than the need in considering
2. Necessity of the person to be supported.
the amount of support.
People v. Manahan Here, the wife is asking for support initially at P500k a month as
Doctrine: Although support may be imposed against a married support pendente lite. The court reduced it to P250K a month. The
man, the compulsory recognition of a child cannot be made
2017: AUSL BarOps Remedial Law Team Page 56 of 109
wife justified it is below her needs since she is undergoing it is still allowed but the unpaid docket fee shall constitute as a lien
medication and going therapy. Hence, aside from P250K in the judgment.
additional support was granted by the Court.
Say: A found a wallet and 3 are the claimants. What to do?
Gutardo v. Buling: File an action for interpleader for the 3 claimants to interplead
Support follows filiation. between and among them.
Del Soccorro case: Bar Matter A classic case of the interpleader.
Where to file. MTC because of the value wallet and what’s

Why SCA? Say: A bank account was being claimed by three persons.
Because the Rules specifically provided for that these rules shall A as the widow
apply. In case of conflict with the regular rules of procedure, these B. claiming that the account was donated to him
Rules shall apply. Regular procedures only supplement the SCA. C – she is the paramour
Where to file? MTC or RTC depending on the value of the account.
For example some special civil actions have no summons, the
court acquire jurisdiction over the respondent in a different Court shall issue summonses for the defendants to file the answer
manner but in ordinary actions summons is mandatory. Like in who has the better right for the action for interpleader for the
certiorari, there is no issuance of summons there, the court judgment of interpleader.
acquire jurisdiction by the issuance of order to file a comment.
Q: After an action of interpleader is filed, what happens next?
INTERPLEADER (Rule 62) A: The court shall order the respondents to file their answer.
After filing an answer and once the issues are joined then you go
to the regular rules of court which is you go to pretrial then trial.
Interpleader R19: Intervention
SCA Ancillary Action
Remedy for the judgment of Interpleader
Plaintiff must have no int. in the Person must have int. in the
Appeal, MNT, etc.
subject matter subject matter
Whenever there are conflicting Ethernal Gardens v. IAC (BAR PROBLEM)
claims over one subject matter Doctrine: Court may order that the subject matter be paid or
against a person who has no int delivered to court. And the person who filed the interpleader
over the subject matter being having no interest over the subject matter should be ordered by
claimed by several individuals, the the court to do so.
one who has no interest will have
to file the interpleader for the The development of Ethernal Gardens in Bulacan. There was a
conflicting claimants to joint venture between Ethernal and Mission Realty Corp (MRC).
interplead. And ask the conflicting The agreement was that 60% of the proceeds from sale shall go to
claimants to interplead between Ethernal and the 40% to MRC, the owner of the lot.
and among then. Maysilo Estate then write Ethernal claiming that they are the
At least 2 defendants with There can be 1 defendant. owner of the land not MRC. Ethernal then filed action for
conflicting claims interpleader. In the course of the proceedings, MRC assailed that
why the proceeds already amounting to P20m not deposited to
There is no action yet There is already a pending
escrow account but to the account of Ethernal, the latter getting
the interest from the account.
Subject matter: Real or personal prop or performance of the
SC: The P20m should be deposited with the court. Ethernal has no
interest in the subject matter. Hence, Ethernal has no interest
over the subject matter.
GR: Value of the prop over which persons have conflicting claims
XPN: Performance of obli since incapable of pecuniary estimation. Wack-wack Case
Doctrine: Interpleader is a compulsory counterclaim. A
Purpose of Judgement: compulsory counterclaim when not raised is deemed waived (Sec
The judgment shall be a declaration as to who is entitled or who is 2 Rule 9).
the legitimate or entitled to the real or personal property or of the XPN: Sec 2 of Rule 11 – in case of inadvertent oversight, excusable
performance of the obligation. negligence = you can still amend the complaint

Docket Fees: When Tan filed a case against Wakwak knowing already that there
Still required. Interpleader cannot be dismissed merely on the is another claimant, it could have and it should have filed a
non-payment of docket fees. But even no payment of docket fee compulsory counterclaim of interpleader. For not doing so, it is

2017: AUSL BarOps Remedial Law Team Page 57 of 109

considered that it had waived its right to any action against the
defendant. Venue
If personal action, where the plaintiffs or respondents resides at
Golf certificates were being caused to be registered in the name the option of the plaintiff.
of Tan and Won. Tan assailed that the share shall be registered in
his name pursuant to a deed of assignment by the British Subject Matter
Company. Won assailed to be registered in his name due to Any contract, will, deed, or other instruments or whose rights are
judgement by the Court. Wack-wack filed action for interpleader. affected by a statute, executive order or regulation, ordinance or
any other governmental regulation.
SC: Action for interpleader was dismissed since there is already a
judgement which Wack-wack is also a party defendant and the
shares was already awarded to one of the claimants. Example a regulation of a school was issued stating that by the
school year 2018-2019 starting June tuition fees shall be raised by
Q: Can there be a compulsory intervention? 120%. There was already a circular to that effect. Declaratory
A: Yes it can happen. relief was filed, pending action 2018 came. The increase was
already collected from the students so you convert your action for
Bank Of Communication (Bar Matter: 2015 Decision) declaratory relief to what kind of action?
If interpleader is a complusary counter claim, can it be a A: Convert is to collection of sum of money.
compulary cross claim
SC: Yes
2013 Doctrine: Malana v. Tappa
BAR MATTER - It did not overturn the doctrine in Sabitsana v. Muertegui since
Can an interpleader can be also be a compulsory cross claim is he the latters doctrine is merely obiter, hence, follow the Malana
can be a compulsory counterclaim. YES. doctrine (per Atty. Brondial).

Pasricha v. Don Realty Case Second paragraph of Sec 1 Rule 63 shall be read in conjunction
Contract over apartment units. Pasricha, lessee, stop paying with Judiciary Act.
rentals since she does not know where to pay due to issue on the Here, the case was filed before the RTC even if the value of the
owners. Hence a case was filed for unlawful detainer. Pasricha property is less than P20k.
assailed that non-payment was due to confliction claims of SC Ruled that the 1st paragraph is different with 2nd paragraph, the
owners. latter is similar remedies and reading it in conjunction with
SC There are remedies available but Patricia did not avail it. Hence, Judiciary Act the quieting of tile, reformation of instrument or
ejectment case is proper. consolidation of title hence the determinant of jurisdiction is the
assessed value of the property. Hence the case should be filed
Alternative remedy for interpleader? with the MTC not RTC.
JUDICIAL CONSIGNATION. SC ruled that the word “may”

Can NLRC can take cognizance with the recovery of personal Vs

property in connection with illegal dismissal case? Sabitsana v. Muertegui (This is Obiter only!)
Yes but there must be a pending illegal dismissal case otherwise it All cases for declaratory relief shall be filed with the RTC. Take
should be with the regular courts. (But pls take note of the SMART note the words “declaratory relief” not including other similar
Case stating that er-ee relationship is converted to cr-dr remedies which is paragraph 2 since in quieting of title or
relationship upon termination of employment. reformation of instruments or consolidation of title the
Take note that all cases involving er-ee relationship is cognizable jurisdiction of the court is based on the assessed value of the
with the NLRC. property.

Before Breach
Rule 63: Declaratory Relief and Similar Remedies
You have read the prayer assailing the Constitutionality of the law
how to distinguish it?
Any person interested in any deed contract will or any instrument If the law is existing only it cannot be declaratory relief
or any person whose rights are affected by any statute, order or since you are merely invoking the Constitutionality and
ordinance before the breach shall file a declaratory relief. there is already breach.
Declaratory relief is only proper prior to the effectivity of
2 parts the law
1. Par 1 – Declaratory relief proper - RTC
2. Par 2 – Similar remedies – MTC or RTC depending on the Say: Ordinance was passed prohibiting smoking starting Jan 2018.
assessed value. What to file?
-Refers to 3 kinds of actions (1) quieting title (2) reformation of Prior to Jan 2018 – DR
instrument; 3. Consolidation of title After effectivity – You only question the constitutionality of
ordinance not DR
Jurisdiction: RTC – incapable of pecuniary estimation
2017: AUSL BarOps Remedial Law Team Page 58 of 109
That is why in certiorari, you say petition for certiorari Juan De la
Republic v. Orbecido Cruz vs RTC branch 45 manila then name of respondent. The
H filed a declaratory relief after his wife married to someone after principal respondent there is the tribunal court or bodies, but they
the decree of divorce was obtained by the latter. become nominal in the process.

Almaeda v. Bathala Marketing Rule 45 Rule 65

Six requirements for DR Mode of appeal SCA
1. There must be Justiciable controversy Error of judgment Error of jurisdiction
2. There must Adverse int. Grounds: Grounds
3. Ripe for judicial determination 1. Insufficiency of evidence for Certiorari and Prohibition:
4. No breach yet of the statute or of the written instrument 2. Judgment is not according 1. Lack of jurisdiction
5. The subject matter for DR is limited to deed contract will to the facts 2. Excess of jurisdiction
or other written instrument of ordinance law or order 3. Damages awarded is 3. Grave abuse of discretion
6. No appeal of other remedies available (i.e., MR or MNT) contrary to law amounting to lack or excess of
Rule 64: Relief fr Judgment, Final Orders and Reso of Commission For Mandamus
on Audit (COA) and COMELEC 1. Neglect in the performance
of duty imposed by law
Subject Matter: Judgements, Final Orders or Resolutions of COA 2. Exclusion from enjoyment
or COMELEC ONLY of an office
Correctible by appeal Correctible by certiorari
Jurisdiction: ONLY SC
Remember: COA and COMELEC are two of the six tribunals where Jurisdiction
you can only file a case directly with SC: RTC, CA, SC, SB, CTA (City of Manila v. Judge Cuerdo)
Other four are SB, CTA, CA, Shariah Appellate District Court But apply the 3 principles in remedial law
1. Hierarchy of courts
Any decision final order, resolution of COA and COMELEC, you can 2. Transcendental importance
assail that only under Rule 64 directly to SC 3. SC is not trier of facts

ONLY one remedy: Certiorari which is the certiorari under Rule 65 When does the court acquires jurisdiction over the person?
1. Plaintiff –upon filing of the petition
Certiorari (R. 64) Certiorari (R. 65) 2. Defendant – upon receipt of the court order directing the
Only applies to COA and No specific agency defendant to file comment within 10 days from receipt
COMELEC thereof.
SC Jurisdiction only Concurrent jurisdiction of
RTC, CA, SC, SB (in its 6 Issues under Rule 65
appellate jurisdiction). 1. Who are the petitioners for CPM
Timeframe: 30 days from 60 days from receipt of order 2. Who is the respondents for CPM
receipt of the copy of order denying the appeal/MR/MNT 3. What are the grounds for the petition for CPM
Fresh period rule is not Neypes Doctine (fresh period 4. What functions did the respondents in the petition for CPM
applicable rule) or the Balance of the 5. What is the common condition in the petition for CPM
Same with Rule 62, 16 and 12 period of 5 days whichever is 6. What is the prayer in the petition for CPM
Hence: If MR or MNT was higher is not applicable in Rule
filed against the order of COA 65 since Rule 65 is only Certiorari Prohibition Mandamus
or Comelec you only have the applicable when there is no Sec 1 Sec 2 Sec 3
balance of the period of 30 appeal nor no other plain, Petitioner Aggrieved party
days but not less than 5 days adequate and speedy remedy How?
(tie up will 22 on the Due to the actuation of the respondents
computation of time). Responde May either be May either be (TBO-PC)
nts (TBO) 1. Tribunal
Rule 65: Certiorari, Prohibition, Mandamus (100% BAR) 1. Tribunal – ex. 2. Board; or
MTC, RTC 3. Officer
Distinguish Rule 65 with Rule 45 2. Board; or 4. Person or
In special civil actions in Rule 65 it says there that the tribunal, Ex.: ERC 5. Corp
body, board, officer, corporation are only nominal parties and 3. Officer (ex. For person - this is not ordinary
under regulations now of the SC, circulars, the tribunal, CIR) individual person but a person
corporations under or impleaded as respondent are not suppose exercising quasi-judicial function.
to appear and not suppose to file pleadings, let the private Remember that quasi judicial
respondentsdo that for them. bodies as we have studied does

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not belong to the judiciary and a Always go in twos:
lot of them falls under the 1. whimsical and capricious –
executive branch of no basis, unwarranted,
the government and that includes baseless, the law does not
the NLRC. The NLRC is not a provide.
judicial body but it exercises quasi
judicial functions. 2. arbitrary and despotic - done
Grounds 1. Lack of jurisdiction 1. Neglect in the out of passion, out of
- Jurisdiction over the subject performance revenge, out of hatred or out
matter not over the person of duty of love.
enjoined by Remember despotic pa rin
Say: MTC rendered a judgment law; or yan kahit out of love.
on an issue which the subject is 2. Excludes Relationships, maraming
not capable of pecuniary someone from jurisprudence dyan, kaya
estimation. This is lack of the enjoyment lawyers always file motion
jurisdiction since it is under RTC. of office of for inhibition.
franchise Ex. Judgement more than
2. Excess of jurisdiction what the plaintiff prayed for.
Overstepping the authority – You can join Functions Discretionary Both Ministerial
going beyond your authority petition for - When one 1. Ministerial; function
mandamus and has given an or - No option
Say: quo-warranto option 2. Discretiona
1. A judge handling the (ex. ry
prosecution of seduction and Say: Mayor Application of
you imposed a penalty of Estrada removed Indeterminate
reclusion perpetua even if the city engr and sentence Law)
you MTC judge who can his place Discretionary – different food
imposed max penalty of 6 appointed his Vs.
yrs. Here you are son. Ministerial – only one food
overstepping your authority. Mandamus for Cannot be brought against legislative or executive
Penalty of prision Erap function
mayor is under the RTC Quo-warranto for Applicable for Judicial or Quasi judicial functions only
hence if imposed by the son. – ex. Creation of executive branch like HLURB, DARAB
the MTC it is beyond its can be subjected to certiorari in the exercise of quasi-
jurisdiction. judicial function.
Conditions No appeal or any other adequate, speedy remedy in
2. What if the RTC judge the ordinary courts of law
imposed penalty of < 6 years, Or in simple terms
is it in excess of jurisdiction? No appeal, No MR, No MNT = hence neypes
No. Under the doctrine (fresh period rule) or the balance of the
Indeterminate period or 5 days whichever is higher is not
Sentence Law, the RTC applicable since CPM is only proper if no
judge may imposed appeal/MR/MNT
penalty lower than 6
yrs. - Certiorari and appeal are mutually exclusive
3. Grave abuse of discretion - EXPN: directed to different orders of the
amounting to lack of court
jurisdiction Prayer Nullify the final Cease and To do or perform
- The most common ground judgement, or desist from (take note
used by lawyers (this catch all final orders, or doing mandamus is
provision) resolutions something merely
- Amounts to gross violation of ministerial
the rules function) plus
- If you look at jurisprudence damages, if any
there is only one description -Hipus Sr. V. Bay
using four adjectives: Damages No claim for damagers Damages is
a. Whimsical allowed.
b. Capricious
c. Arbitrary –
TUAZON v. Registrar of Deeds of Caloocan
d. Despotic –

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Doctrine: Certiorari will only lie against tribunal exercising such, the issuance of writ is purely ministerial already leaving the
judicial/quasi-judicial function. court no choice but to issue

Mr. Tuazon, a retired public school teacher, used his retirement

pay to buy a lot in Caloocan. However, through PD Marcos UP BOARD OF REGENTS v. Ligo-Teylan
annulled the title of the buyers including that of Tuazon and was Doctrine: Board was considered as a body exercising discretionary
subsequently distributed by Marcos to his Presidential Security function, in effect quasi judicial. Even in an administrative bodies,
Guard. a school board, when it rules that a student is not entitled to be
After EDSA, Tuazon filed certiorari to nullify the PD issued by enrolled in said school due to some grounds.
Marcos. OSG assailed that Marcos is an executive officer and does
not perform judicial function hence certiorari is not available. Facts: UP student who applied for scholar ng bayan but in his 4th
SC: Certirorari is valid. He is a usurper of judicial function hence year it was discovered that there was misrepresentation on the
the more certiorari has a valid ground. part of Nadal. UP Committee recommended for his expulsion in
UP (he cannot enter in any school). MR was filed but was denied.
Remington Doctrine Hence, he appealed to UP Board of Regents and honourable
Where one party these two remedies (certiorari and appeal) are dismissal was only released. But Nadal went to court for certiorari,
allowed since two remedies are directed to different orders of the prohibition and mandamus.
court This landed to Judge Tilan and ruled in favour of Nadal. UP was
directed to accept Nadal for enrolment.
A filed a case against B and C. B and C filed a motion to dismiss but SC: CPM will not apply. In mandamus, SC reiterated the case of
was denied. Note M2D is an interlocutory order. B then filed Arellano v. Cui is academic freedom. The school has the right
certiorari against interlocutory order. When a judgment was whom to accept and whom not to accept. However, mandamus is
rendered while the certiorari is still pending, C then filed an not proper since the school has discretion in the exercise of
appeal. academic freedom.
As to C who filed an appeal for the judgment – this is valid
As to B – he filed petition for certiorari is still valid Sections 4 to 9 of Rule 65 – common provisions applicable to CPM

Say: A files a case against B and M2D was filed. When that is No. of copies
granted, the order is final. Hence, your remedy is appeal. But if it not anymore 18 but five copies with only two copies with
was denied, the order is interlocutory order since there is complete anexes for SC pursuant to efficient use of paper
something to do. The remedy is certiorari. rule
For CA – instead of 7 it is now 3 copies with only one copy
Say. Collection suit for P250k filed with the RTC but a decision was with complete annexes
rendered. Certiorari is not available since appeal or other For Lower courts – only one copy
remedies are available. All single space
Font 12
Hipus Sr. v. Bay
Doctrine: Mandamus will not lie for discretionary function of the REMEDY AGAINST ORDER OF JUDGMENT OF CPM
judge. 1. Rule 45 to SC; or
2. Rule 65 also (CPM) to a higher court -remember that
Upon the filing of information in court, and upon motion for certiorari is a concurrent jurisdiction
reinvestigation which was granted by Judge Bay there was a There is no prohibition that a certiorari can be
finding of no probable cause. Resulting in the petition to withdraw certioraried
the information. Judge Bay denied the withdrawal.
SC: Judge Bay is correct it is discretion of the judge, hence, cannot Note: The court is a nominal party. It is not really the party in
be subjected to mandamus since the latter is only ministerial interest. While the court is the principal respondent, it is not
function. enough to only file the cae against the court but you need to
include also the private respondent.
Atienza Case:
Depot in STa Mesa removing the depot mandamus was filed. The Say A v. B. Judgement was rendered in favour of A. B filed rule 65
petition is proper since it is only ministerial for it is merely in due to grave abuse of discretion. Who is the respondent.
compliance with the ordinance which was upheld by the court as Not only MTC but also the party in interest which in this case is B.
valid. Refusal of Atienza to implement it is ministerial function. It That’s why the judge is only a nominal party and prohibited to
is neglect in the performance of once duty enjoined by law. participate. The filing of memorandum, etc is to be directed
against the adverse party not the judge.
Say: Writ of Execution – a ministerial function and mandamus is
Note: CPM is not a matter of right = SC can dismiss it in a minute
Then why there is a motion for writ of execution – it is only to
determine if the matter is really executory. After determination of
Rule 66: Quo-warranto

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Literal meaning – “by what authority” If OSG filed – venue is always manila

Note: There is only usurpation of public office and not of private When to file – within one year from accrual of action.
office. How about damages – one year from entry of judgment.

Nature: assailing the authority or by what authority are you Mendoza Case
occupying that position which is limited to APPOINTIVE PUBLIC Doctrine: A petition for Quo warranto is against a public. It is
OFFICES (appointive only) directed to the person occupying the public office and not to the
office per se. Also plaintiff is not entitled to backwages in quo-
Calleja v. Panday warranto proceedings since wages in that office is legislated and
A corp have faction among the BOD and one faction ousted the it was given to his successor. Likewise, it cannot be imposed
other by force resulting to filing of quo-wararnto. against the successor who was not impleaded in the case.
SC: Not proper since quo-warranto is only for public office.
Mendoza is the Acting Director in BoC. When Ramos was elected
2 TYPES OF QUO-WARRANTO as President, he transferred Mendoza from Manila to CDO which
Omnibus Election Code Rule 66 was objected by the latter. In place of Mendoza, Allas was
Issue on the qualification for Issue is the appointed on a temporary basis. Mendoza filed petition for quo-
election BUT this quo- qualification/capacity for warranto before the residence of alias. Mendoza won. But the
warranto is different from appointment. Issue is the return of Mendoza did not happened due to appeal. Meanwhile,
election protest. qualification/capacity for Allas was promoted as deputy commissioner. However, instead of
appointment. reinstating Mendoza a new person (olores) was appointed.
Issue is the ineligibility of Issue is the Mendoza then filed for M2d of appeal since it is moot and
Public Officer and/or violation qualification/capacity for academic after Allas was promoted. Judgment in favour of
of OEC Rules appointment. Mendoza became final and executory.
Execution was not allowed by the court since he cannot execute
Rule 66 the judgement for the judgment was against Allas who was
Subject Matter: Public office, but not directed to public office promoted. He won but he cannot execute since Olores, the
itself but the person occupying it. Hence, the successor is not current occupant, is not a party to the case.. In Quo-warranto the
subject to quo-warranto if it was filed before succession tool respondent is the person not the office per-se.
Who is the proper plaintiff in Rule 66–
GR: The government since it is an award of the Govt to an We premise our discussion in the Constitutional provision, in Bill
individual – no one has the right to public office or Rights there is one provision regarding consti
“No property shall be taken for public use without just
Who can file – compensation”
GR: OSG which can be handled by the DOJ as authorized by the - Without this substantial conti you cannot exercise
OSG however through circulars this can be handled by the DOJ expropriation.
(Public Prosec)
EXPN: Private individual can also file petition for quo-warranto Note: Before the Rules of Court named this rule as Eminent
provided he has a claim to the public office. Domain.
If he has no claim- you cannot file but he can initiate deemed a
relator (the sipsip to OSG for the filing of the quo-warranto) Eminent Domain – inherent power of the state.
Who is the Relator Taxation – the life blood of the state.
a private person who has no claim in the public office but the one
who initiates the quo-warranto by informing the OSG/DOJ that a Eminent Domain – based on regalia doctrine (all lands belong to
person is usurping a public office and on that basis OSG/DOJ files the state and he who claims it has the burden of proof).
petition for quo warranto.
Note: In the study of expropriation, you need to go back in
Jurisdiction: substantive law – Land Registration Act.
Same with CMP, Habeas Corputs – concurrent, SC, CA, RTC, SB but What is property discussed here?
not CAT. Not only the real property but also personal property.
Hence, ill-gotten wealth can be subject to appropriation.
Venue: GR: Where the rule provides The word property in the consti is not limited to real
GR: Under Rule 66- must be the resident of the respondent property but can also extends personal property which is
XPN: Always in Manila if OSG is the petitioner. also applicable in Rule 67.
Although in Rule 67, most of the topics here are real
When a claimant to the public office files the case – where the property since personal property are being covered by
respondent resides different rules and laws.
2017: AUSL BarOps Remedial Law Team Page 62 of 109
Say: AML Law it is taking also but it is not under Rule 67. was filed assailing violation of equal protection clause. However,
Bayani said that these urinals can be used by women also.
What is the concept of taking? Even if these urinals covers only men it redounded for the benefit
Not limited to actual seizure or custody of property. of general welfare. It is only men that can urinate anywhere and
There is taking when there is diminution of usefulness. not the women.
When you diminish the utilization or usefulness of the Hence, when we speak of public use it does not necessarily
property of an individual there is taking, thus, person is benefits the entire community as long as it redounds for the
entitled to compensation.
Formula for Just compensation (JC)
National Power Corp. vs. CA (BAR MATTER) JC = FMV + consequential damages – consequential benefits which
Given in the Bar in relation to Section 1 of Rule 17 should not be more than the consequential damages.
Doctrine: There is already taking of the property upon filing of the
applicant of expropriation case even if there is no actual taking yet
of the property. Hence, the aggrieved party is entitled for FMV –
compensation even if the expropriation case was already as provided by PD of Marcos is declared unconstitutional.
dismissed due to M2D filed by the petitioner assailing that there Now the FMV is the price that the buyer is willing to buy
was a mere error of judgment on the part of the petitioner and without being forced to or the seller is willing to sell
the lot previously expropriated is sufficient already. without being forced to.
Can you apply these in expropriation case?
Here, NPC wanted to set-up geothermal plant in Albay in the slope In reality it is not since the owner actually suffers loss.
of Mayon Volcano. The property is owned by Pobre Family. This
was expropriated by the NPC. While NPC is constructing the Note: Upon filing of the complaint they can immediate takeover
geothermal plant, NPC said that they expropriate insufficient land, even without payment of the property. The petitioner can just pay
hence, NPC filed another expropriation case which also belongs to deposit for purposes of taking immediate of the property is 15%
the Pobres. However, before Pobres filed an answer in the of the zonal value of the property not the market value of the
complaint, NPC filed notice of dismissal since according to NPC property. Zonal valuation is the value assessment of the BIR.
they already expropriated sufficient lands.
Pobre assailed that they are entitled compensation since the case Asias Emerging Dragon v. DOTC (BAR MATTER)
was already filed in court, hence, there is already taking. Doctrine: Before the government can take possession of the
property expropriated they must pay 100% of the zonal valuation.
Is the Pobres entitled to compensation in the second But take note that this rule is for INFRASTRUCTURE PROJECT OF
expropriation case? THE Government and not for the ordinary project of the
government like mere road widening. The example of
Ruling: Yes. Upon filing there was already taking even if the infrastructure project is the building of MRT.
property was not physically/actually taken.
Barangay San Roque v. Heirs of Pastor
Manila Internal Airport Case Expropriation case is not capable of pecuniary expropriation
Here, MIAA expanded its operation. MIAA expropriated several hence under the jurisdiction of RTC only.
properties there. However, the adjacent owner of the property
expropriated property also asked for compensation since the Who is the plaintiff?
utilization of the property was greatly diminish. The poultry Only the government. But the local government code granted that
operation of the said property dwindled resulting in the decline in power not only to local government and barangay but also to
income due to less egg production caused by loud noise of the GOCCs, etc.
SC ruled: There was already taking even if there is no actual taking Can the barangay expropriate by merely passing a resolution (BAR
since there is a reduction of income on the part of the adjacent MATTER)?
property. Such resolution must also be approved by the municipal or city
Note: The taking must only be for a definite purpose: for public
use. Remember the Chinese Cemetery case: if the property is Note for GOCCs? Not all can expropriate, it must be stated in the
already for public use it can never be subject for another taking. charter of the GOCC.
It is not necessary that entire community shall benefit. Even if it
caters only to certain members of the society as long as it is for Reclamation is not expropriation. Reclamation is only a mode of
the common good and for the general welfare then it is for public acquiring title over the property.
1. The first thing that the court issues is the order of
Say: condemnation or what we call the order of expropriation.
In Manila, when MMDA Chairman Bayani Fernando constructed in This is a final order hence the remedy is appeal which is a
Mla the pink urinals. But this pink urinals cater only to men. Case notice of appeal.

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2. Determination of just compensation. To appoint 3 2 types of foreclosure
commissioners decided by the parties, plaintiff and the 1. Judicial Foreclosure – by Rule 68
defendant shall suggest the member of the commission and 2. Extrajudicial foreclosre - RA 3135 as amended
the court shall appoint a common member. Take note that
the members of the commission may accept evidence, here Most Bar questions is about extra-judicial foreclosure and not
testimony not for the purpose of judgment but only a report under Rule 68.
which is not controlling and merely recommendatory.
The applicability of Rule 68 is when there is a mortgage of real
The determination of just compensation is ALWAYS A property. Hence, it is always anchored on a loan. The bank uses
JUDICIAL FUNCTION AND NEVER AN EXECUTIVE NOR these real properties as security. This security is known as the
LEGISLATIVE FUNCTION. That’s why the commissioner can mortgage and the debtor enters the Real Estate Mortgage. Failure
only recommend which the court may take it or not or to pay will result in foreclosure
recommit the recommendation for further studies.
Who are parties?
BAR 2009 1. Plaintiff –mortgagee/creditor
Can Congress pass a law expropriating 100 sqm of UST 2. Defendant – mortgagor/debtor
property to be paid through exchange or barter with another
one hectare property in Calamba as payment. Objective is to Sec1 Rule 68 last sentence
build statute of Mayor Lacson. “You have to implede all defendants: the names and residences of
Committee Answer: Yes as alternative answer all the person whose rights are are subordinate to that of the
Atty Brondial said No. The answer should be in remedial law holder of the mortgage.
not in constitutional law since it is a rem bar.
What do you mean by whose rights are subordinates?
2015 BAR They are junior encumbrances. Those they have a right
Larceny question in remedial law which is already outside subsequent to the loan.
remedial law.
Unanimous approval that regardless of the answer it is a full These persons are only necessary party not indispensable party.
Remember that the indispensable party are those if not impleaded
City of Manila v. Serrano the judgment is null and void even if those who are impleaded
Seranno questioned the expropriation of the property claiming v.
that the property is very small hence cannot be expropriated. The Necessary parties – there will no complete determination of the
issue here is WON City of Manila correctly follow the process in case.
the expropriate case.
Ruling: No. Expropriation must always be the last resort. If there Note: You can still use a property as security even if you are not
are other properties which could be taken expropriation should the owner of the real property.
never be exercised. The owner of the property is an indispensable property.
Republic v. Andaya The possessor of the property. He can be indispensable or a
Doctrine: Even if the property has not been actually taken as long necessary party.
as it cannot be used as it used to be, then there is already taking
and there must be payment of just compensation. Say: A son borrowed the title of the property of Atty. Brondial and
used it as collateral. He disagreed but his wife approached him to
2 parts in expropriation allow his son to use the land title as collateral.
1. WON the property is for public use
2. Payment of just compensation. What should be the judgement in action for foreclosre?
Not a judgment to sell but a judgment to pay.
Orders in Expropriation If the mortgagee worn, it is not a judgment to sell.
1. Order of expropriation – final order, hence, appealable.
You cannot recover anymore the property. You must Timeframe within which payment is to be made
appeal the order of expropriation for you to recover the Not less than 90 days nor more than 120 days from entry of
property. After the finality of judgment you cannot judgment.
recover anymore the property. Take note of the liberality of the law in favour of the
2. Payment of just compensation. mortgagor. It is from entry of judgment. The law provided the
mortgagor to pay after foreclosure. This is what is known as
57:08 EQUITY OF REDEMPTION. – meaning to say the property
Rule 68: FORECLOSURE OF REAL ESTATE MORTGATE (REM) should not be sold yet the mortgagor has the period to pay.
Then why mortgagor cannot pay or did not exercise equity of
Reminder: Most of the cases that you read in foreclosure is RA redemption – because of the high charges already. (that’s why
3135 not based on Rule 68 banks are known to be a legalized robbers). That’s why

2017: AUSL BarOps Remedial Law Team Page 64 of 109

notwithstanding the leniency of the rule, mortgagors failed to Doctrine: There is no need for a demand before you can file a
pay. foreclosure.

Vs. Golden Merchandising Corp.

Doctrine: In extra-judicial d
Right of Redemption – the one year period to redeem the
property counted from the date of registration of certificate of Extrajudicial foreclosure.
sale. Who can redeem – judgment obligor or the successor in GR:Writ of possession – not a separate action it can be file by mere
interest or a redemptioner (one who has a lien over which the motion without notice.
property is sold). XPN: If it is in possession of the real property who is not the party
in the case.
If you appeal to CA, the 30 day period (the not less than 90 days
nor more than 120 days) does not begin to run. If you go to SC, the Can there be a valid foreclosure of REM even if the REM is not
30-day period does not also begin to run to. That’s why some notarized?
mortgagor go to SC. Yes. Even if it is not notarized it is only binding between the
parties. Notarization can make only the documents public. Which
Sec 2 means notarized documents does not requirement
When the mortgagor failed to pay the loan within the period – the authentication.
mortgagee by mere motion can go to court for the authority to sell
the property. Rule 69: Partition (SELDOM GIVEN IN THE BAR)
The buyer of the property is more often the bank.
Two parts:
The foreclosure sale must be confirmed – there must be an ORDER (1) the determination of whether the property is suited
OF CONFIMATION, otherwise, the foreclosure will not take effect. for public use
Order of expropriation or order of
What is sought to be confirmed here? condemnation
THE SALE OF THE PROPERTY MUST BE CONFIRMED OTHERWISE Appealable. If not appealed, order is final and
Vs. No recovery of property once the order
Sec 1 of Rule 17 becomes final and executory
Order of Confirmation is required to effects the dismissal of the
case. (2) the payment of just compensation
Order separate and distinct from the order of
Deficiency Judgment expropriation
Don’t be misled by Section 6 Remedy for non-payment of just
This is not applicable in extra-judicial foreclosure. compensation: appeal from the judgment
This deficiency judgment is not brought about by Cannot seek anymore for the recovery of
separate action. You do this by mere motion since it is a property
continuation of the main action.
When it is done? Foreclosure of real estate mortgage based on a deed of real
If the proceeds is less than the debt. estate mortgage not notarized
Once the deficiency judgment is granted by the Court, go
• Notarization, under the rules of evidence only make the
to Rule 39 = Execution of Judgment. (Sections 31, 32, 34).
document public, which means it does not require
authentication. So even if a document is not notarized,
What if the sale proceeds is more than the debt?
it is binding, but it binds the parties thereto.
The mortgagee must return the excess to mortgagor. However, if
there are junior encumbrances (subsequent attaching creditors,
Rule 69 Partition
etc) the mortgagee must deliver it to junior encumbrances

• Hypothetical case
2 Cases under Extra-judicial Foreclosure
(How do you apply for extra-judicial foreclosure-
H and W are husband and wife who have 5 children, A,
Simply apply with the branch clerk of court.
B, C, D, and E. H and W own a big parcel of land, 1,000
Is there right of redemption and period to redeem?
sqm. H and W both died, thus under the law, the
A: It depends upon the contract. If there is nothing stated in the
property then will then go to the children, in co-
contract it is one year period. EXPN: In case of bank, it is only
ownership. Children are all of age. The siblings did not
maximum of 3 months to redeem not one year.
enter into an extrajudicial settlement. A filed for
partition, joined by E, the other 3 siblings are the
Advantage of Extra-judicial foreclosure:
unwilling plaintiffs, respondents.
No need for notice.
How will this be partitioned?
LZK Holdings v. Planters Bank
2017: AUSL BarOps Remedial Law Team Page 65 of 109
Rule 70 Forcible Entry and Unlawful Detainer
The court will assign commissioners, for the accounting.
Should the parties not agree to a project of partition Unlawful Detainer Forcible Entry
(extrajudicial settlement of estate), the rule provides, Nature possession was lawful possession was
the next option of the commissioner is Assignment. at the start and unlawful from the
Assignment is to buy out. The commissioner will ask the became unlawful start
children who among them are willing to buy out the later
property. If B buys out the property and takes the Grounds 1) Expiration of the (FISTS) Force,
property for himself and the other children agree, there contract; Intimidation,
would be no problem. If one opposes, under the rules, 2) Violation of any Strategy, Threat
no assignment or buy out is to take place. The last term or condition in or Stealth
option then would be Sale. the contract, and
3) Tolerance
• Balus vs Balus ( G.R. 168970, Jan. 15, 2010) Note: Rent Control
Facts: The father together with his wife, owned Law provide for
a piece of land. He then secured a loan from a grounds for ejectment
bank with his property. However, he forgot to proceedings
pay his loan and the bank foreclosed his Recovery Action accion interdictal (recovery of possession
property. It was the bank who was the buyer of de facto)
the property in the foreclosure sale and after it
Requirement for there is a need of there is no need
bought the property, it was consolidated. The Action demand to pay and for demand
children of Balus entered into an extrajudicial vacate
settlement of the estate of their parents saying
Prescriptive one (1) year from the none
that they are going to divide between and
Period last demand
among themselves the properties. But the heirs
Note: beyond the
know for a fact that the property was with the
one-year period, valid
bank without fully knowing that it was already
action would be
consolidated. Upon knowing of this, one of the
accion publiciana
children bought back the property from the
bank, after which, he wanted the full
• Exclusive and original jurisdiction of MTCs
ownership of the property. But there was an
• Summary Procedure
extrajudicial settlement, so that during the
no hearing
pendency of the mortgage, the property for
there are prohibited pleadings
quite some time has already been in the
period much shorter (10 days to file answer, 30
possession of one of the children. That child
days to submit for decision, 30 days to render
was not the one who bought it back from the
bank. Hence, a case for partition was filed
no trial but there is preliminary conference
based on the extrajudicial settlement of the
Issue to be resolved: possession de facto, not
estate as evidence.
possession de jure
Issue: W/N partition will apply, and w/n there
When the issue of ownership is raised in the
is co-ownership.
pleading, the court is not divested of its
Held: In a partition case, the first thing that
jurisdiction and must resolve the issue of
must be determined is whether or not there is
ownership only to resolve the issue of
co-ownership. The records of the case state
possession. Resolution of the issue of
that there was already no more co-ownership
ownership is not res judicata. Litis pendencia
from the time that the bank consolidated the
therefore would not apply because the
title over the property. Co-ownership ceased
resolution of issue of ownership is only to
by the time of consolidation. So that to go back
resolve the issue of possession.
to that, pursuant to the extrajudicial
Damages allowed in cases will only be unpaid
settlement of the estate will not turn it back to
rentals and attorney’s fees
a co-ownership. Here, partition will not lie. The
case was dismissed and the file to proper
action which is recovery of property or • Injunctive reliefs for ejectment proceedings
ejectment as the case may be. That is the first (1) Trial court
part of partition. It has a second part like Section 15 – plaintiff can immediately ask for
expropriation, which is accounting. Accounting injunction
here means, the certain expenses for the
partition, the proceeds, if there are civil fruits, (2) Appellate court
these must be properly distributed between Section 20 – plaintiff can still ask for injunction
and among the heirs. while pending appeal by the defendant

2017: AUSL BarOps Remedial Law Team Page 66 of 109

• Appeal by the defendant 2. The court acquires jurisdiction over the case only after
Requirements for appeal: (1) notice of appeal, publication : once a week for three consecutive weeks. It
(2) supersedeas bond and (3) regular monthly must cover three weeks which is 21 days, the publication
deposit for the use and occupancy of the is not for 21 days.
appeal will not stall the execution of judgment 3. Special Proceedings are imprescriptible.
in unlawful detainer unless that appeal is
coupled by posting of supersedeas bond and 4. The issues in Special Proceedings are determined not by
regular monthly deposit for the use and the allegations in the pleading, but rather by law.
occupancy of the premises.
MTC - file the notice of appeal and post the RULE 74, Summary Settlement of Estate.
supersedeas bond
- supersedeas bond refers to unpaid *the word settlement of estate automatically connotes the
rentals. If there are no unpaid rentals, existence of an estate. It only comes to life when one is deprived
supersedeas bond is unnecessary of life. So estate happens only when someone dies. If death does
Appellate court (RTC) - deposit the monthly fee not occur, there will be no settlement of estate. So it is mandated,
for the use of the premises on or before the not by just the rule, but by logic, that when settlement of estate is
10th day of every succeeding month availed of, someone must have died. It is basic that the first
How much should be posted? The amount jurisdictional requirement of estate is that someone must
must be according to judgment establish the death of the decedent, either actual death or
• Appellate court affirms judgment of lower court presumptive death. You cannot continue with settlement of
There is already execution of judgment. There estate if you cannot establish the death of the person whose
is no longer appeal. estate you are going to settle.*
File for petition for review under Rule 42
To stall the execution of judgment, apply for Actual Death
injunction Presumptive Death

Rule 71 Contempt Settlement of Estate consists of three things:

1. Inventory of the estate
• Two kinds as to nature: civil and criminal 2. Administration of the estate
• Direct contempt - there is misbehavior or disrespect to 3. Liquidation of the estate.
the court, actually done in the court or so near the court
as to disturb the proceedings, or to vex the judge Two different modes of settlement of estate:
• Indirect contempt – grounds as provided under Section
3 1. Judicial
• Only the SC can suspend lawyers (Yasay vs Recto (G.R. a. Summary settlement of estate of small value
129521, Sept. 7, 1999)) (Rule 74, Sec. 1)
• The power of contempt must not be exercised in a
vindictive manner but always cautiously and in the b. Judicial partition (Rule 69)
preservative way (Sison vs Caoibes (A.M. No. RTJ-03- Steps in Judicial Partition – (i) file the project of
1771. May 27, 2004)) partition, (ii) A commissioner is appointed when
there is determination of co-ownership, and (iii) the
commissioner has the following options : project of
General characteristics of Special Proceeding.
partition, buy-out, and/or sale
Basis : Rule 1, Sec. 3.
c. Escheat (Rule 91) – where there absolutely no
heir, and there is no will
3 kinds of action : civil action, criminal action and special
The State settles the estate. As regards
jurisdiction, it must be filed where the properties are
Special Proceedings - it is a remedy that seeks to establish a status,
found. If the properties are scattered, then the
a right or a particular fact.
properties shall be scattered where the properties
are located. The publication requirement shall be
Characteristics of a Special Proceeding:
once a week for six consecutive weeks in a
newspaper of general circulation. The property
1. There is only 1 party, the petitioner;
belonging to the estate must be used for charitable
purposes and education purposes where they may
Exception - Writ of Amparo, Writ of Habeas Data, and
be found.
Writ of Kalikasan.
[Alvarico vs Sola, G.R. No. 138953, June 6, 2002]
The property given by the State can only be returned
2017: AUSL BarOps Remedial Law Team Page 67 of 109
to the State only through the action of the State and wife in Tarlac which assailed the petition on the ground that the
not an individual. second wife is not the proper party in interest and the venue is
wrong. In addition, the first wife claims that in the death
d. Conventional form of the settlement of the certificate of Quiazon, he is a resident of Tarlac. The SC held that
estate (Rule 75-90). Las Piñas was the proper venue, because that is the residence of
the decedent where he last resided. In addition, a death certificate
2 kinds : (i) testate; (ii) intestate is not an evidence of residence, but a mere proof of death.
[Quiazon, et al vs De Belen G.R. No. 189121,July 31, 2013]
N.B. it is not only the RTC that can take cognizance
over the settlement of the estate, even the MTC can
take cognizance of the settlement of the estate RULE 75, Production of Will. Allowance of Will Necessary
because the law, R.A. 7691, states that testate or
intestate, so the jurisdiction depends on the gross The presumption here is it is a testate settlement since a will was
value of the estate (P300,000 outside MM/P400,000 executed.
in MM).
Sec. 1 is fundamental, since no property shall pass unless the will
2. Extrajudicial is allowed. Thus, a probate proceeding is mandatory. Any court
a. extra-judicial partition that takes cognizance of this settlement of the estate is a court of
b. affidavit of self-adjudication. limited jurisdiction.
Requirements : (1) someone dies, Concept of limited jurisdiction – states that when the court is
(2)the person who died left only one heir, acting as a probate court, it cannot deal with other issues so far,
(3) he left no will, and (4) he left no debts, but once the will is allowed or disallowed, it this does not mean
or if there are debts, there are properties that the case will stop. It continues up to the end of settlement
already to answer such debt. which is distribution of the estate.

N.B. If for instance, you have Production of the Will - Whoever is in possession of the will is
illegitimate brothers or sisters, then the duty-bound to surrender the will. If he does not surrender that will
affidavit for self-adjudication cannot apply. within a period of 30 days from the death of the decedent or
knowledge of the death of the decedent, he can be sanctioned.
This affidavit is not a simple affidavit,
you have to apply with the office of the Problem:
registry of deeds if there is real property Mr. X resides in QC. He has 5 children. He executed a will in QC.
involved. You must execute an application After executing a will, he gave the will to his eldest son, Mr. A, as
stating your personal circumstances, how custodian of the will. Through the years, Mr. A was in custody of
you are the sole heir, the marriage contract the will, but later on he was married and he resided in Cebu. While
of your parents if any, your birth certificate, in Cebu and as resident thereof, A’s father died in QC.
your muniments of titles, and if there are Immediately, Mr. A complied with Rule 75 and surrendered a copy
personal properties it should be stated also. of the will with the RTC of Cebu. One or two months after, the wife
After this, there must be publication and and the other children of the decedent filed a petition for probate
posting of such affidavit. This is of the will, with the will annexed, in RTC of QC.
administrative, it does not need the
participation of the court, Which is the court of proper venue, Cebu or QC?

RULE 73, Venue and Process QC because it is where the decedent last resided. If you are going
to assail the issue of improper venue, where are you supposed to
What is the venue of the action? The venue of the action, under file our opposition, in QC or in Cebu? - In Cebu, because QC is not
the rules, must be the last residence of the decedent. the court of proper jurisdiction. Cebu is the court of proper
jurisdiction. (Cuenco vs Court of Appeals, G.R. No. L-24742
Residence - the actual, personal, and physical abode. October 26, 1973)

Is residence the same as domicile? According to the SC, what is N.B. By mere surrender of the copy of the will, the court can
required in the settlement of estate for venue is the residence and already set the case for hearing.
not the domicile. Domicile is the residence of someone with the
intent to remain there, so that for purposes of election, the Exclusionary Rule – the court that takes cognizance of a case takes
requirement is not residence but domicile. But for purposes of it to the exclusion of all other courts.
settlement of the estate, it is the residence. [San Luis vs San Luis,
G.R. No. 133743, February 6, 2007]. Question:
1. Regarding using tolerance, how to use it as a ground for filing
Quiazon died in Las Piñas. The wife in Las Pinas filed an action for an ejectment case?
appointment as administrator of the estate. There was another
2017: AUSL BarOps Remedial Law Team Page 68 of 109
The same, the subject is only a ground. Summary procedure; file No witness Rule- the application for the allowance of a will, if it is
the complaint and after filing the complaint, summons is served, filed by the testator himself of his own holographic will, no witness
and the answer must be filed in ten days. There is no distinction. is necessary.
How to allege tolerance? He will simply testify that he has entirely written it, he has signed
-Settled is the rule that only ultimate facts, i.e. the defendant is in it, and he has dated it.
possession of a 20 sqm property thru tolerance of the plaintiff. No One-witness Rule- a notarial will which is uncontested. When you
need to explain what tolerance means; only the ultimate facts. seek the probate of a notarial will and there is absolutely no
2. Statement of facts: contest, you need only one witness who will establish that this was
A, B, and C are sisters. They were co-owners of certain hectares of written.
land which they acquired from their deceased parent. A and B died Two-witness Rule- refers to a lost or destroyed will. When a will is
leaving the undivided properties in the hands of C who enjoyed lost or destroyed, before you can have that probated you have to
the fruits of the land alone without considering the children of her establish the existence of the lost or destroyed will and you need
deceased sisters. One of the children asserted rights over the two witnesses for that.
properties but because of young age, C gave her nieces a few Three-witness rule- refers to a contested holographic will. You
amount of money and made them sign a notarized document have to get atleast three witnesses to establish that is the will.
which is a sort of waiver waiving the rights over the properties. Is Four-witness rule- refers to notarial will that is contested. This is
the document valid? If not, what would be the remedy of the the three instrumental witnesses and the notary public.
- The validity of the document (bilateral) depends on the validity Rule 77- Allowance of Will Proved Outside of Philippines and
of the consent. In the example, there is a vice of consent. There is, Administration of Estate Thereunder
in other words, undue pressure and influence. So the document is
contestable. It is a matter of evidence. You have to show that When a will is executed abroad, can that be implemented here?
there was a vice of consent whether force, intimidation or even
undue pressure and influence, so much so in a will. - No. That is in effect a foreign judgment. And because it is a
3. A, an incumbent elected barangay chairman, seeks for a higher foreign judgment, you have to cause its approval here in the
position and filed a certificate of candidacy for mayor and Philippines irrespective whether a Filipino or not. As long as the
participated in the last local election on May 9, 2016. will was:
Unfortunately, A lost. Consequently, A reassumed his original 1. executed abroad
position that was already vacated by him. Besides, by fortune, he 2. probated abroad
was appointed as a member of the sangguniang panlalawigan 3. under the laws abroad
equal to the rank of regular members of the provincial board. Can 4. by a probate court
he be removed in the board invoking quo warranto proceeding then it cannot be implemented here.
raising the ground of ineligibility?
- No, because the quo warranto here is under the omnibus These are to be established in the enforcement of that will in the
election code. Philippines.
You have to show that the testator:
Rule 76- Allowance or Disallowance of Will 1. Is domiciled abroad, not resident.
Who can file a petition for allowance/disallowance of a will? 2. That he executed a will abroad
(DELTA) 3. According to the laws of the country where he executed it
1. Devisee 4. That it has been probated by a court of competent
2. Executor jurisdiction
3. Legatee named in the will 5. According to the laws where it was probated
4. Testator
5. Any person interested in the estate Reprobate of a will- means that the will has been probated in
Don’t confuse this with Rule 78 (Letters Testamentary and Letters abroad. Considering that it is equivalent to a foreign judgment, it
of Administration). Rule 78 is different. Here, it is application for has to be re – enforced. To enforce here you have to file reprobate
administratorship. Under rule 76, it is petition for the allowance of that will.
of the will. Under Rule 78, letters testamentary or letters of
administration, who can file an application for appointment as Jurisdiction – RTC has general jurisdiction or because it is an action
administrator of the estate. not capable of pecuniary estimation.
Letters testamentary (incompetent to serve as executors or
administrators) Venue – where he has an estate. If he has estate all over the
1. Not a Minor Philippines then we shall apply the Exclusionary Rule.
2. Not a resident of the Philippines
3. In the opinion of the court unfit to execute the duties of the E.g. If the deceased has estate in Parañaque, another in Manila,
trust by reason of drunkenness, improvidence, or want of others in Quezon City, you can choose anywhere for as long as it
understanding or integrity, or by reason of conviction of an is the RTC.
offense involving moral turpitude
Reprobate Court once approved, there must be a judgment.
Certificate of Probate has to have finality. Copy furnish the

2017: AUSL BarOps Remedial Law Team Page 69 of 109

interested parties and after 15 days from receipt then a Certificate 1. Payment and posting of bonds;
of Finality will be given then execution. 2. Submission of an inventory and appraisal within three
months from appointment;
If there are several properties in the Philippines, the court may still 3. Accounting within one year from appointment or as may
appoint an executor or administrator of the estate. This is be directed by the probate court;
different from ancillary administrator who was assigned to take 4. Rule 87/88 – Sales, mortgages and encumbrances should
charge of the properties found in the Philippines. Ancillary go first before payment of debts;
administrator is different from the initially appointed executor or 5. Payment of debts; and
administrator abroad. 6. Distribution and partition.

Letters Testamentary vs. Letters Administration Settlement of Estates ends during partition and distribution of the
Letters Testamentary is the appointment of a executor. When
there is a will, there is an appointed executor. But it is necessary Rule 83 – Inventory and Appraisal
that the person in the will will be approved by the court because
in order for the court to issue Letters Testamentary, in effect BAR MATTER
appoint an executor, he must be duly qualified and what are the Sec. 3 – Who is entitled to the proceeds from the estate?
basic qualifications, it would be based on the court.
The widow and children. Grandchildren are not entitled to the
The Rule says that he must post a bond and accept the trust. If he fruits of the estate.
accepts the trust as an appointed, then he would be appointed.
Otherwise, there will be Letters of Administration which is the Heirs of Hilario Ruiz vs. Edmond Ruiz (252 SCRA) Landmark Case
appointment of an administrator.
Edmond Ruiz the son of the late admiral Ruiz, a sole heir but there
Qualifications - Administrator: was an adopted daughter who has three children. In the course of
the proceeding, the lawyer of the children against the father.
1. Not a minor; Edmond Ruiz is legally separated from the wife because he caught
2. Resident of the country; the wife in the act of adultery and so the wife was charged and
3. Must be duly qualified; convicted. The children lived with the grandparents. When Hilario
4. Not a drunkard (includes drug addict); Ruiz died, Edmond is the custodian of the will which he did not
5. Not convicted of offense involving moral turpitude (e.g. surrender. The adopted daughter filed a petition for a probate of
urinating in public) – any act degrading is an act involving the will with the will annexed. In the course of the proceedings, he
moral turpitude. filed a case asking that the rentals from part of the estate shall be
given to the grandchildren.
Rule 80 – Special Administrator
Grandchildren are not entitled to the proceeds from the estate.
When may a special administrator be appointed? Only the widow and the children are entitled.

On two instances: Rule 85- Accountability and Compensation of Executors and

1. When there is delay in the appointment of a regular
administrator; A lawyer who at the same is time is executor or administrator of
a. Delay may consist of a lot of things the estate cannot charge attorney’s fees. Remedy?
b. Estate of Dr. Ortañes Case - Charge it as expenses of administration.
Dr. Ortañes has three legitimate children and
five illegitimate. The legitimate wife and the Rule 86- Claims Against Estate
eldest child sold the shares of a Corporation.
The illegitimate children contested the sale and In reference to Section 20, Rule 3 (Contractual Money Claim),
stated that they cannot dispose the properties when the defendant dies pendent lite, the case shall not be
before the settlement of the estate. There is no dismissed but shall proceed up to entry of judgment and once
appointed executor but the delay in the there is entry of judgment, you cannot execute the judgment
appointment of an administrator is due to the under Rule 39, you have to claim it against the estate.
disagreement of the parties as to who to
appoint. So, the court appointed a special What are claimable against the estate?
- These claims against the estate immediately after the issuance
2. Sec. 8 Rule 86, when there is claim against the estate by of letters testamentary or letters of administration, the court
the executor/administrator. must order the publication of this appointment for pusposes of
filing against the estate. This claim against the estate must be
Rights and Obligations of the Appointed Executor or Administrator filed within the statute of non-claims.

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Setting aside of part of the estate is not yet for distribution. The
Statute of non-claims- filed not more than 12 months nor less than law says “in due course of administration”, meaning, wait for the
6 months from the first publication. time for proper distribution (Rule 90). So it cannot be distributed
yet. It is just set aside.
Is there a conflict between the statute of non-claims and the
prescriptive period? Do you have now preferential right in the distribution of the
- The prescriptive period for filing a claim is 10 years.
- No, because there is no payment of debts yet.
Which should prevail, prescriptive period for filing a claim against
the estate or the statute of non-claims? If you have a claim but it is recovery of real or personal property,
recovery of interest therein, lien theron, or claim for damages
- You have to follow statute of non-claims. So that if you do not arising from injury, you cannot file that as a claim against the
file a claim against the estate within this statute of non-claims, estate. You have to file a separation action against the executor or
you can no lobger file a claim against the estate notwithstanding administrator of the estate under Section 1, Rule 87 (Actions by or
that it is still within the 10-year prescriptive period (statute of against executor or administrator of the estate).
- The statute of non-claims supersedes the statute of limitations Penultimate Duties of the Executor/Administrator
(10-year prescriptive period)
1. Payment of Debts (Rule 88)
What are claimable against the estate? -if without fund to pay, and there is no provision in the will, if
there is any, as to what property can be used in the payment
1. Money-claims based on contract whether express or of debt, the rule provides the personalty goes first. Then if the
implied, which may be due, not due, or contingent. If not personalty proceeds from the personal properties would not
filed against the estate, it is deemed waived. suffice, use the real property.
2. Funeral expenses But if the will so provides, that which is provided will prevail.
3. Judgment for money (Section 20, Rule 3)
2. Sales, Mortgages and Encumbrances (Rule 89)
These can be filed within the statute of non-claims. No need to -you can only sell, mortgage, and encumber real property. As
wait for the 10-year period. Otherwise, if filed after the 6- to personal property, you cannot mortgage or encumber
month period provided for under the statute of non-claims, them, you can only sell them.
you can no longer claim.
3. Distribution and Partition of the Estate (Rule 90)
Section 7, the estate is a mortgagor. -if something from the estate remains after payment of debts.
How to claim against the estate? -if the estate is not enough for the payment of debt, the
3 options: remedy is preference of credits under the civil code.

1. File it as a claim against the estate Guardianship

2. Apply rule 68, foreclosure of real estate mortgage
3. Avail 3135 as amended, extra-judicial foreclosure 3 Kinds:
These are not successive remedies. They are alternative. 1. Natural- parents
Availment of one is a waiver of the other. 2. Judicial- anyone qualified to be appointed as guardian of the
person of the ward or the property of the ward
Filing a claim against the estate is not by petition. If there is an 3. Guardian Ad Litem- anyone qualified who has a limited
ongoing settlement of the estate, it is easier; but if there is no authority because he is appointed only for a particular purpose
ongoing settlement of the estate, initiate the settlement of the
estate because you are a creditor, a person interested in the Under the present rule, as amended, there are two objects of
estate. If filed, the claim is already there. guardianship:

But if there is an ongoing settlement of the estate, you have only 1. Guardianship over the person of the ward
to present evidence to the clerk of court. 2. Guardianship over the property of the ward

Upon submission of documentary evidence to establish claim, the There is a middleground or the third kind:
clerk of court will notify the administrator/executor of the estate
to file Answer to the claim within a period 15 days. -Guardianship over the person and property of the ward.

The Answer of the executor/administrator may either be positive Two grounds in order to apply for guardianship:
or negative. If positive, the settlement court will set aside part of
the estate to answer for that claim; if the Answer is in the 1. Guardianship over a minor- governed by the new rule. (Adm.
negative, hearing will be conducted and the Court will decide. Matter ___, 2003)

2017: AUSL BarOps Remedial Law Team Page 71 of 109

2. Guardianship over an incompetent- still with the present rules judgment but that is strictly known as the Reprobate of
of court the will.

Before the amendment on the law on guardianship, being a minor Remember: 5 requirements of Reprobate of the will
is already a ground for guardianship. Now, under the new rule,
mere minority is not a ground. You have to qualify the situation of 2. Claims against the Estate
the minor. Rule 86, Sec. 7

Incompetent- prodigal, deaf-mute, unable to read and write, When the estate is the mortgagor
insane, imbecile, one who cannot take charge of his own affairs. The mortgagee has three options but one would exclude
the other, the availment of one is the exclusion of the
Jurisdiction over a petition for guardianship over the incompetent other.
is with the RTC. 1. File it as a claim against the estate under Rule 86;
Petition for guardianship over a minor is with the Family Court. 2. File judicial foreclosure under Rule 68; or
If the incompetent is at the same time a minor, Family Court has 3. File Extrajudicial foreclosure under 3135 as amended
jurisdiction. by 4118, he cannot ask for deficiency judgment in
the same action. Is there deficiency judgment? Yes
Oropesa vs Oropesa but in a separate action.

General Oropesa was the subject of petition for guardianship by If he chooses one, he waives the other.
his own two children saying that he cannot take care anymore of
his affairs because of the young girlfriend. In Rule 87, the antithesis of 86, but take note also that
Sec 5 regarding the fact that the estate is the mortgagee.
The SC said that the allegation was not proved. Petition did not
succeed. 3. Guardianship
Oropesa vs. Oropesa
Two Rules on Guardianship
Under the new rules, natural guardians are required to post 1. Rule in the Rules of Court; and
bonds. They cannot sell the properties of their wards. They have 2. The Administrative Matter or Guardianship over
to apply for appointment as a judicial guardian or guardian ad Minors
litem only for the purpose of selling particular properties.
To apply for guardianship over Minors, minority is not the
BAR MATTER: ground alone. Solely the fact of minority cannot be a
Rule 101 (Hospitalization of Insane Persons) ground for guardianship. It should be qualified.
Rule 103 (Change of Name)
Rule 108 (Cancellation or Correction of Entries In The Civil e.g. Death of the parents; remarry of one of the parents
Registry) and incapacity on the part of the parents

Special Proceedings Minority before the amendatory rule, 2003, by being a

REMEDIAL LAW BAR OPERATIONS mere minor that can already be a ground for petition for
guardianship. But incompetency, it is there already in the
Criminal Procedure rules.
Villa Real case on Probation
Jurisdictional Aspect of this:
Settlement of Estate is the most important on Special Proceedings When incompetency is the ground in guardianship, it
should be filed with the RTC. But if it is a minor, it should
Salient Points: be filed with the Family Court.
1. Venue and Jurisdiction
The Family Court is separate and distinct from the RTC
Venue – doctrine in fule, substantiated, latest case is San
Luis vs. San Luis As to the Venue
The venue in settlement of estates is the last The residence of the ward, prospective ward.
personal, physical abode of the decedent.
And also the Bond
Reprobate of the will
Rule 77 When is Guardianship terminated?
When a will is executed abroad under the law where it When the ground, the cause for the petition for
was executed, you cannot implement that in the country. guardianship ceases or ends, that is the termination of
You have to file a petition for enforcement of a foreign guardianship.

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Carmen Caniza as represented by Amparo Evangelista vs.
CA; 1997 or 1998 Not only Secretary of Health can treat the contagious
Don’t read it as if the rule on termination of guardianship diseases but even the Regional Health.
here was overturned. It is still the same. Read this
thoroughly. But the new rules are not yet approved.

Upon the death of the ward, the guardianship was

terminated. The case continues because the guardian is 5. Adoption
the niece of the ward. Even by substitution, it is still the
same. Definition. What is adoption?

Case in QC of a Solfem old woman, the niece (Amparo Adoption is a juridical act, a proceeding in rem, which
Evangelista) filed guardianship over the person and creates a relationship between two persons similar to
property of her aunt. Petition was granted. While that of legitimate paternity and filiation.
exercising her duties as a guardian, she found out that
one of the properties is being leased to the Estradas. But A juridical act – it cannot be a subject of a contract. There
it is not actually being leased but merely being occupied must be a judicial order that is why it is a juridical act. It
by Pedro Estrada who is the all-around worker of her must pass through the court.
aunt – the driver, gardener, and all. Since she needs
medicine for her aunt, the property being occupied Proceeding in rem – it binds the whole world.
should be sold. But since it is being occupied by the family
of Pedro, she filed unlawful detainer as a guardian, Which creates a relationship between two persons –
representing the owner. The petition was granted. object or things are not included.
However, Pedro’s family filed an appeal. Therefore, the
judgment cannot be executed since the judgment is not A relationship similar to that legitimate paternity and
yet final and executory. During the pendency of the filiation – only a relationship “similar”
appeal, Carmen died. The niece is requesting to dismiss
the appeal on the ground of improper party since there The law can never approximate or substitute nature.
is no longer guardianship. You cannot represent Anak ay anak. Tatay ay tatay.
someone who is no longer around. CA dismissed the case.
Hence, appeal to the SC. Paternity and filiation – should not be interpreted
Was guardianship terminated? Paternity – man, father
Filiation – son
Guardianship was terminated because the rule is very These are used generically. Includes maternity.
clear that when either the ward or the guardian dies then
wala na. It is likened to SPA. Pagnamatay na ang isa, Legitimate – it is accepted. All the rights of the natural
whether the principal or the agent, wala ng SPA ganun father, mother, child also apply here.
din ang guardianship.
Rules on Adoption has taken a lot of changes through the
So the guardianship was terminated but will that call for years. Being adapted on the new trends. But
the dismissal of the case? SC said that NO because of substantially, it is the same.
substitution. Who is the compulsory heirs? Substitute the
ward by the guardian. And she is the niece. Therefore, Adoption was formerly governed by the Child and
the unlawful detainer case should continue. Welfare Code, PD 6303. This went through a lot of
Bonds on guardianship.
At present, the law governing adoption is Domestic
4. Hospitalization of the Insane Person Adoption Act of 1998 and Intercountry Adoption Law of
Enlarged and enhanced the provisions of this during the
revised rules on special proceedings. Intercountry Adoption Board – quasi-judicial
Medical commitment – new title of Hospitalization of the
Insane Person on the Revised Rules on Special The governing law is R.A. 8552, Domestic Adoption Act of
Proceedings. 1998.

New Rule on the Hospitalization of the Insane Person Rules of Procedure which took effect in 2002 (not sure of
covers not only the insane but even the drug dependents the year)
and those who are with or afflicted by contagious
diseases. End 32:30
2017: AUSL BarOps Remedial Law Team Page 73 of 109
Child Placement Agency – not only care but they can ask
R.A. 8043 and 8552 law on adoption, when you know the for the matching.
law, you already know the rules.

Definition. Child. Who can adopt? Simulation of Birth

Anyone below 18 years old – Domestic Adoption Act When you try to tamper with the Civil Registry and make
Any child below 15 years old – Intercountry Adoption Law it appear that you are the parents of a child who is not
really your own. This is a criminal offense.
*Legal age is not the only requirement to qualify to
adopt. There is an amnesty on this.

BAR MATTER Case: IN RE: Adoption of Michelle and Michael Lim

Liza is a 19-year-old Filipino, working and handsomely
earning who wants to adopt little Mario. Is she qualified Husband and wife Lim. The wife is an optometric. A child
to adopt? was brought to her clinic who during that time is 11-day
old. She took care of the child and called her Michelle
No, Liza cannot adopt because the she no full legal Lim. The birth was simulated. After a year, the same
capacity. The law provides that a Filipino of legal age who woman brought another child. Again, she simulated the
has full civil capacity. She doesn’t have a full civil capacity birth of this second child and named him, Michael Lim.
because under our Civil Code, one has only full civil When Domestic Adoption Act was enacted, Mrs. Lim
capacity at 21 years old. So, she does not have the full already knew that simulation of birth is a criminal offense
exercise of her civil rights. and there is amnesty. So, Mrs. Lim would like to adopt
the children. It is stated in the law that when you avail of
Under the Family Code, a 19-year-old girl cannot marry this law then you will be exonerated. When she filed the
without parental consent. petition of adoption, Michelle is already married and
Michael is already of age. Mrs. Lim had a second husband
already who is an American citizen but they already have
Prospective Adoptee the plan of separating. But Mrs. Lim still acquired the
consents from her husband, from Michelle and Michael
Must be legally available for adoption. When is one to adopt. The petition was eventually granted but
legally available for adoption? appealed by the Solicitor General.

OLD RULE: There must be a judicial declaration that the And the decision of the SC was against the adoption on
adoptee is legally available for adoption. Judicial the ground that the adoption must always be filed jointly
declaration means that you need to go to court. by the husband and the wife even when there is a
prospective plan to divorce and even the spouses are
NEW RULE: In the very petition for adoption, you start separated in fact. The adoption must be a joint adoption
with a judicial declaration that the prospective adoptee by the spouses.
is legally available for adoption. No need for a separate
Adoption Requirements:
Legally available for adoption
1. Voluntarily committed – the parents renounce their 1. 18 years of age;
parental authority and commit the child to DSWD; 2. Full civil capacity;
and 3. Qualified emotionally, psychologically, financially,
2. Involuntarily committed – the government forced and physically (totality of the person); and
the parents to commit the child to DSWD. 4. 16 year-age gap – between the adopter and the
a. Abandoned child – must have been adoptee
abandoned for 6 months; and Rationale: To lessen immoral or illicit relationships.
b. Neglected child
R.A. 8552 Who can adopt?
Child placement agency can also be a Child caring agency
but a Child caring agency is not necessarily child 1. Filipino – mentioned above;
placement. 2. Alien – always all the requirements of a Filipino and
residency requirement; with diplomatic relationship
Child Caring Agency – who takes care or provides support with the Philippines; and duly certified and qualified
materially, financially, psychologically to the child but to adopt according to their home country law; and
they are not authorize to file adoption proceeding. 3. Guardian – only after the termination of

2017: AUSL BarOps Remedial Law Team Page 74 of 109

Consent is very important. Most of the cases refer to the informed about the adoption and she said that she never
requirement of consent. The consent of the adoptee if he knew the adoption. That her consent was not secured.
is at least 10 years old and the parents of the prospective That the adoption was filed in Batac which not Atty.
adoptee, the mother and father; and the children of the Castro’s residence.
adopter whether legitimate or illegitimate; and spouse
since adoption must always be joint. BAR MATTER
What is the remedy of Mrs. Castro?
Cang VS. CA
Annulment of Judgment on the ground of fraud.
Mr. and Mrs. Cang in the Philippines. Mr. Cang is a Fundamentally, there was no consent. But the facts of
womanizer and Mrs. Cang wanted to end their marriage. the case states that these two children are not really his
So, Mr. Cang went abroad and stayed there to file a illegitimate children but the children of Larry to the house
divorce. He left behind three children, all minors. When helper. Larry is the husband of the house helper of Atty.
Mrs. Cang got sick, she wanted that their children be Castro and Atty. Castro’s lover. And in order to help his
adopted by her brother-in-law and sister who were lover, he adopted the children since Mr. Castro has
childless. A petition was filed. When Mr. Cang knew homosexual tendencies. There was fraud but
about it, he came back in the Philippines and opposed the fundamentally, the consent was not secured.
petition on the ground that he did not give his consent.
The petitioner claimed that the consent is no longer ISSUE: Annulment of the decision of the adoption.
necessary because he already filed a divorce and in effect
he has abandoned the family already. When this reached Check Santos VS. Santos
the SC, the SC denied the petition on the ground of lack
of consent on the part of the husband. For the defense of Grounds on Annulment of Judgment:
abandonment to be valid, it must be total and absolute
abandonment. In the case, there is no absolute or full 1. Lack of jurisdiction;
abandonment of his parental authority. The husband 2. Lack of due process; and
regularly communicated with the children and the 3. Extrinsic Fraud.
husband sends certain amount of money to the children
and sends gifts to the children on special occasions. IN RE: STEPHANIE NATALY GARCIA

The SC states that how there can be full abandonment if Illegitimate child of Mr. Catindig. Mr. Catindig wanted to
the communication and good relationship continue. adopt his illegitimate child. Granted. But in the very
While adoption is always to the best interest of the petition for adoption. The petitioner asked that the child
prospective adoptee but that should not deprive parents would retain Garcia, the family name of the mother.
their parental authority. This parental authority does not Remember that in adoption, it is automatic that the
only consist of in support but rather the relationship of family name of the petitioner/adopter is followed by the
the father and children must always be considered. adoptee after the decree of the adoption. Following the
According to the wife, in the course of the testimony, the adoption, the family name now of Stephanie would be
children already wanted to live with their uncle and aunty Catindig. But Mr. Catindig wanted that the middle name
and they can provide. According to the SC, you cannot now of Stephanie should be Garcia. This was opposed by
delegate your parental authority just like that simply the Solicitor General and stated that it should be in a
because the children wanted to be adopted does not separate petition. That would be Change of Name under
mean that it is to their best interest. Rule 103. Hence, appealed to SC.

SC reversed the decision. Today, Sec. 10 of the new Rules

allows in a petition for adoption, change of name and
Castro VS. Gregorio – Consent; Annulment of Judgment middle name. But at that time it is not yet allowed. There
on the ground of Extrinsic Fraud is no provision in the rule that the family name of the
illegitimate child carrying the name of the mother should
Atty. Jose Castro of Laoag was married to Rosario then also be maintained or retained. Neither is there a
while they were married they had one child who died in prohibition. Considering that the identity of a person
infancy. After the death of their first child, they decided depends not only on the paternal side but also on the
to separate. They remained to be good friends to the maternal side. There is no reason why he could not adopt
point that they got back together. They had another child Garcia as the middle name of Stephanie. The name now
named Joana. Mrs. Castro separated from the husband will carry, as pronounced by the court, Garcia as the
on the ground that Mr. Castro has homosexual middle name of the child and Catindig as her surname.
tendencies. Mrs. Castro continues to support their child
and every now and then Mr. Castro gives support as well. Carula San Wang Case
The lawyer sought to adopt his two allegedly illegitimate
children from his house helper and the adoption was
granted. Atty. Castro died. Mrs. Castro was eventually
2017: AUSL BarOps Remedial Law Team Page 75 of 109
We want to remove the middle name on the ground that
we are going to Singapore. And in Singapore, people has Intercountry Adoption Law
no official middle name.
Can only be availed of by Filipino citizens living abroad or
The SC disapproved on the same rationale as in the case those permanently residing abroad. You can file to the
of Stephanie Garcia wherein the court stated that the court here in the Philippines under the Intercountry
identity of a person depends not only on the paternal Adoption Law or file to the Intercountry Adoption Board.
side but also on the maternal side. Depriving the middle The Intercountry Adoption Board is not scattered all over
name is the deprivation of the person’s maternal the world, only located in some countries (i.e. Chicago).
identity. You are trying to avoid the residency requirement.

BAR MATTER Can a foreigner avail of the Domestic Adoption Act of

1998 as well?
With regard to consent, suppose the child is a product of Yes. Intercountry Adoption Act does not proscribe the
egg transplant. The consent is need. The question is availment of Domestic Adoption Act of 1998.
whose consent is necessary. Is it the natural father or the
biological father. The biological father is the sperm So a foreigner can stay here in the Philippines for at least
donor. The natural father is the one who took care of the three years prior to the petition and comply with the
child. Domestic Adoption Act.

There is no jurisprudence. You can only give Emphasis on the Exception:

rationalization. Considering here that it would be
detrimental; the sperm donor should be unknown. Foreigner who comes in the Philippines and seeks to
Reason dictates that you should acquire the consent of adopt a relative within the 4th civil degree of
the natural father. consanguinity – requirement on residency will be
However, if you are going to ask me on this, get the
consent of both if the sperm donor is known. Seeks to adopt his/her own illegitimate child*
Seeks to adopt the legitimate child of the spouse*
The law on recessional is different. The adopter can no
longer rescind the adoption, it is only the adoptee who *These are not only require an exemption for joint
can rescind the adoption. adoption but as well on the residency requirement.

Who is entitled upon the death of the adopter. It goes 6. Habeas Corpus
back to the biological parents.
Refers to all kinds of illegal confinement or detention or
Bartolome VS. SSS illegal or unlawful withholding of custody from a person
2014 entitled thereto.

A certain seaman was earning handsomely and he met Unlawful withholding of custody
an accident while on board a ship and he died. The - Happens to husband and wife as well
biological mother filed an application with the
Compensation Act as beneficiary. This was disapproved E.g. Unlawful withholding of custody from the mother
by SSS on the ground that during the childhood when he
was only less than 2 years old (the seaman), he was Illegal detention or confinement
already adopted by his grandfather. And because of that - When it violates the constitution or the law
adoption, the parental authority seized. And under the
Compensation Act, according to the law, because of this If the court that renders judgment without jurisdiction
the parental authority was never returned to the then it can be subject for habeas corpus.
biological mother even upon the death of the adopter.
Serapio VS. Sandiganbayan
This is exceptional. SC found out that after adoption,
before the adoptee turned 2 years old, the adopter died. Filed a petition for habeas corpus. The SC said that the
Because the adopter died, the biological mother took remedy is wrong because you have a remedy against
care of the child again until the child became a seaman. illegal confinement in your case where you are confined
According to the SC, it should be the adopter who is by virtue of a warrant of arrest, you can always ask for
supposed to benefit. But in this particular situation bail.
considering that parental authority has returned to the
biological mother because of the death of the adopter, Doctrine: If there are other remedies, you cannot avail of
the biological mother is entitled to the benefit. This is a habeas corpus.
peculiar case.
2017: AUSL BarOps Remedial Law Team Page 76 of 109
Buildner Case Subject matter
a. Cancellation
Mr. and Mrs. Potenciano got separated and divided the 6 b. Correction
children to the spouses. After a vacation, he returned to
his wife. Then the two children who used to be with the Jurisdiction – RTC
father told her mother that you are killing Dad. So, the
children brought the father in their Makati house. The
Venue - civil registrar keeping the records you want corrected or
mother filed a petition for habeas corpus for illegal
detention. In addition, Mrs. Potenciano requested for
visitorial rights of a spouse.
There are several instances, several documents or several entries
The SC said that the record will show that Atty. in the civil registrar which you may want to be corrected or
Potenciano notwithstanding his more than 80 years of cancelled.
age is still of very sound and disposing mind. If you have
a sound and disposing mind and you left the conjugal 1. Births
home then there is no illegal detention or there is even 2. Marriage
no withholding of custody because when you get married 3. Deaths;
you do not surrender your privacy. As to Mrs. Potenciano 4. Legal separations;
requested for visitorial rights of a spouse. Visitorial right 5. Judgments of annulments of marriage;
only refers to parents and children relationship but as to 6. Judgments declaring marriages void from the beginning;
husband and wife there is no visitorial rights. 7. Legitimations;
8. Adoptions;
Continuation of Change of Name 9. Acknowledgments of natural children;
10. Naturalization;
In one case, there were neighbors both women, Terese A. Castro,
11. Election, loss or recovery of citizenship;
the neighbor also named Teresa A. Castro. The difference is with
12. Civil interdiction;
their Middle name, one is Aguilar and the other one is Apolinario.
13. Judicial determination of filiation;
In order to avoid confusion, she asked for change of name. Ground
14. Voluntary emancipation of a minor; and
of a change of Name - Confusing.
15. Changes of name
During the Japanese times, we are hostile with the Japanese
because of the atrocities that they have done to certain Filipinos,
Procedure may either be a.) Summary or
so that when your name is Japanese sounding we tried to change
b.) Adversarial.
it. We are inimical, we abhor Japanese during those times. This is
another ground for change of name. Summary - When what is sought to be changed is only
typographical or clerical
What needs to be changed, your name in your birth certificate.
The name to be change is that which is contained in the birth Adversarial – When what is sought to be changed is substantial
certificate, and not on any other document, because the name on
your birth certificate is the official appellation of a person. These
are the ground on the change of name.

Being a special proceeding, how does the court acquire

Eleosida vs. Local Civil Registrar of Quezon City, G.R. No. 130277,
jurisdiction? By publication. We have established already that in
May 9, 2002 - Rule 108 of the Revised Rules of Court provides the
all special proceedings cases there must always be publication and
procedure for cancellation or correction of entries in the civil
generally once a week for three consecutive weeks in a newspaper
registry. The proceedings under said rule may either be summary
of general circulation, not national circulation but general
or adversary in nature. If the correction sought to be made in the
circulation. I have mentioned to you the distinguishing feature of
civil register is clerical, then the procedure to be adopted is
a newspaper of general circulation, there must be fixed
summary. If the rectification affects the civil status, citizenship or
subscriber, it must be published regularly, it caters to the general
nationality of a party, it is deemed substantial, and the procedure
community/general public, not to a certain class of individuals.
to be adopted is adversary.
After all these things there must be a hearing, and after the
hearing the court grants the petition for change of name.

Onde vs The Office of the Local Civil Registrar of Las Pinas City,
G.R. No. 197174 (read the case) - The remedy and the proceedings
regulating change of first name are primarily administrative in
Rule 108 – Cancellation or Correction of Entries in the Civil nature, not judicial.

2017: AUSL BarOps Remedial Law Team Page 77 of 109

Correction of entries in the birth certificate, change of status of Republic of the Philippines vs. Cagandahan
parents from married to 'not married' is substantial and requires G.R. No. 166676 | 2008-09-12
an adversary proceeding under rule 108, rules of court
Change of first name allowed when purpose is to conform to
Citing Republic vs Cagandahan “Under R.A. No. 9048, the gender election arising from pre-existing medical condition called
correction of clerical or typographical errors can now be made congenital adrenal hyperplasia (cah)
through administrative proceedings and without the need for a
Rule 108 now applies only to substantial changes and corrections
judicial order. The law removed from the ambit of Rule 108 of the
in entries in the civil register.
Rules of Court the correction of clerical or typographical errors.
Thus petitioner can avail of this administrative remedy for the A correction in the civil registry involving the change of sex is not
correction of his and his mother’s first name.” a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is rule 108 of the rules of court,
Typographical/ Clerical Error – That which is harmless and
not republic act no. 9048
innocuous, visible to the eyes, obvious to the understanding.
A change of name is not a matter of right but of judicial discretion.
R. A. 9048 – Clerical Error Act
As for Cagandahan’s change of name under Rule 103, it has held
• Amends Rule 103 and Rule 108 that a change of name is not a matter of right but of judicial
• Corrects typographical/ Clerical Error and changes of first discretion, to be exercised in the light of the reasons adduced and
name and nickname the consequences that will follow. The trial court’s grant of
• File a petition with the Office of the Civil Registrar Cagandahan’s change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name. Considering the
• If seeking to correct an entry (supposed a resident in
consequence that Cagandahan’s change of name merely
Manila) in Davao, no need to file the petition in Davao,
recognizes his preferred gender, there is a merit in Cagandahan’s
you may file the petition in Manila. The receiving registry
change of name. Such a change will conform with the change of
(Manila) will forward it to Davao. However, the posting
the entry in his birth certificate from female to male.
(10 days) in Manila is not sufficient, there should also be
a posting in Davao. No need for publication for
typographical error. Difference between Silverio case and Cagandahan case.
• Remedy if Civil Registrar denies the petition – One step Sex Change – No
appeal. To appeal with the Civil Registrar General. If the Sex Choice – Yes
dismissal is sustained. Go to Judicial
• Venue under Rule 103 and Rule 108 Fujiki vs. Marinay 700 SCRA 69 – the petition to recognize the
Silverio vs. Republic of the Philippines 537 SCRA 72 G.R. No. Japanese Family Court judgment may be made in a Rule 108
174689 | 2007-10-22 proceeding. In Corpuz v. Santo Tomas, the Court held that “[t]he
recognition of the foreign divorce decree may be made in a Rule
Petition for Change of Name 108 proceeding itself, as the object of special proceedings is
precisely to establish the status or right of a party or a particular
Petition For Change Of Name, A Person's First Name Cannot Be
Changed On The Ground Of Sex Reassignment

Administrative Nature of Proceedings for Change of First Name WRIT OF KALIKASAN

RA 9048 now governs the change of first name. It vests the power
Writ of Kalikasan – Rule 7 and Rule 8 of the Procedures on
and authority to entertain petitions for change of first name to the
Environmental Cases.
city or municipal civil registrar or consul general concerned.
Jurisdiction over applications for change of first name is now
*If given in bar always include the terms “Healthful and Balanced
primarily lodged with the aforementioned administrative officers.
Ecology”, being the main purpose of environmental laws
The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Resident Marine Mammals and Stewards of the Protected
Rules of Court, until and unless an administrative petition for Seascape Tanon Strait vs. Energy Secretary Reyes -G.R. No.
change of name is first filed and subsequently denied. It likewise 180771 and G.R. No. 181527 | 2015-04-21 - Environmental Cases;
lays down the corresponding venue, form and procedure. In sum, Citizen's Suit, Any Filipino Citizen In Representation Of Others,
the remedy and the proceedings regulating change of first name Including Minors Or Generations Yet Unborn, May File An Action
are primarily administrative in nature, not judicial. To Enforce Rights Or Obligations Under Environmental Laws

"Under what other judicial discipline describes as ‘continuing

mandamus,’ the Court may, under extraordinary circumstances,
issue directives with the end in view of ensuring that its decision
2017: AUSL BarOps Remedial Law Team Page 78 of 109
would not be set to naught by administrative inaction or
indifference." Responsibility vs. Accountability
Responsibility refers to the extent the actors have been
Writ of kalikasan and Writ of Continuing Mandamus (know the established by substantial evidence to have participated in
difference) whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft,
Grounds for the filing of a writ of continuing mandamus - Neglect among them, the directive to file the appropriate criminal and civil
in the performance of duty which is enjoined by law cases against the responsible parties in the proper courts.

Ground for filing of a writ of Kalikasan – unlawful acts and Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited
omission of public officer or employee or private individual or
entity involving environmental damage of such magnitude as toinvolvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined
affect the life health and property of the inhabitants of two or
more cities of provinces. above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure;
Arigo vs Swift or those who carry, but have failed to discharge, the burden of
Award of damages not one of the reliefs granted in a Writ of extraordinary diligence in the investigation of the enforced
Kalikasan suit disappearance.

US expected to comply with international obligations under the Burgos vs Esperon

UNCLOS, despite being a non-party to the international
agreement; The Court’s role in a writ of Amparo proceeding is merely to
determine whether an enforced disappearance has taken place;
Strategic Lawsuit Against Public Participation (SLAPP) - Can be a to determine who is responsible or accountable; and to define and
claim or a defense. When a claim is set put to harass or vex, you impose the appropriate remedies to address the disappearance.
may use SLAPP as a defense, conversely, when use as a defense,
you may use this as a counterclaim.
Roxas vs GMA
The use by the petitioner of the doctrine of command
Writ of Amparo (May be asked in Remedial Law, Political Law, responsibility as the justification in impleading the public
Criminal Law) respondents in her amparo petition, is legally inaccurate, if not
incorrect. The doctrine of command responsibility is a rule of
Protective remedy against violations or threats of violation against substantive law that establishes liability and, by this account,
the rights to life, liberty and security, involving extra-legal killings cannot be a proper legal basis to implead a party-respondent in an
and enforced disappearances. amparo petition.

Cannot be used to pray for any affirmative reliefs The Commanders may be Impleaded not because of Command
Used to pinpoint Responsibility or Accountability, never criminal Responsibility but rather on the Ground of their Responsibility.
The Writ of Amparo Does Not Fix Liability for Disappearances,
Filing the writ of Amparo will not proscribe the filing of a criminal Killings and Threats
or civil case.
Property Rights are Not Within the Ambit of Protection of the Writ
If you file a criminal case, it will suspend the amparo case, of Amparo
consolidate the writ of amparo with the criminal case.
Jurisdiction of Writ of Amparo – Concurrent Jurisdiction of the
If you file a criminal case, it will bar the filing of a writ of amparo, following:
you may avail the writ thru a motion. a. RTC – enforceable within the judicial region
b. Court of Appeals – enforceable anywhere in the country;
*Read the following cases: can be remanded to RTC for further proceedings
Burgos vs Esperon c. Supreme Court – enforceable anywhere in the country; can
Roxas vs GMA be remanded to RTC for further proceedings
Razon vs Tagitis
Who may file (one excludes the other):
Razon vs Tagitis 1. Aggrieved party
2017: AUSL BarOps Remedial Law Team Page 79 of 109
2. Immediate family, ascendants or descendants
3. Non-Governmental Organization Name appearing in the baptismal certification

Interim Reliefs (for further understanding – refer to modes of Baptismal certification is not a subject matter for correction. You
discovery) only correct those of public records.

School records
WRIT OF HABEAS DATA If the school records will conflict with the birth certificate, you
have to correct the school records and it must comply with the
The writ of habeas data must not be confused with the writ of birth certificate. But that is administrative. 9048 is not applicable
amparo but it aids the writ of Amparo. here, what is sought to be corrected are only the entries there
under rule 108, section 1, yung 16 entries.
To protect a person from violation or threat of violation of one’s
right to privacy in life liberty and security (privacy rights). Is RA 9048 the right remedy under the following facts: The birth
certificate in the local civil registry was eaten by termites resulting
*Read the cases: Lee vs Ilagan and Roxas vs GMA to damage to a middle name (i.e., Pelingon became Peling, “on”
was eaten by termites”). Actually, this is only correction and not
cancellation. If you have other certifications, let’s say baptismal
Dr. Joy Margate Lee, Vs. P/Supt. Neri A. Ilagan - In order to certificate, school records or affidavit. You can show that so that
support a petition for the issuance of such writ, Section 6 of the this will be corrected. This should be 9048.
Habeas Data Rule essentially requires that the petition sufficiently
alleges, among others, “the manner the right to privacy is violated EVIDENCE
or threatened and how it affects the right to life, liberty or security
of the aggrieved party.” In other words, the petition must Basically, you have two things to consider here:
adequately show that there exists a nexus between the right to 1. Admissibility
privacy on the one hand, and the right to life, liberty or security on 2. Credibility
the other.
Evidence must not only be admissible but also credible. For
evidence to be credible, it is not only credible by itself, it must also
Roxas vs GMA come from a credible witness.

Nature of Writ of Habeas Data Example:

The writ of habeas data was conceptualized as a judicial remedy Cardinal Tagle is a very credible witness. But when you asked him,
enforcing the right to privacy, most especially the right to “Your eminence, where were you on March 5, 2000?”, he
informational privacy of individuals. answered, “I recall, on March 5, 2000, I was on my way to the
moon”. The testimony is very incredible. It comes from a very
The writ operates to protect a person's right to control credible witness but is incredible. Admissible? Yes.
information regarding himself, particularly in the instances where
such information is being collected through unlawful means in On the other hand, Mr. X was an eye witness to the falsification of
document, when you started asking him, he said “I saw him sign,
order to achieve unlawful ends.
he is not Juan dela Cruz, he is Petra Santos and not Juan dela Cruz,
and he was the one who signed there as Juan dela Cruz. On cross
An indispensable requirement before the privilege of the writ may examination you asked, where were you before you came here, “I
be extended is the showing, at least by substantial evidence, of an just came out of prison, I was an inmate and incarcerated for
actual or threatened violation of the right to privacy in life, liberty falsification.”
or security of the victim.
This is a very credible testimony but it came from an incredible
Until such time that any of the public respondents were found to witness.
be actually responsible for the abduction and torture of the
petitioner, any inference regarding the existence of reports being First guide – memorize the definition of evidence, verbatim.
kept in violation of the petitioner's right to privacy becomes
farfetched, and premature. Evidence is the means, sanctioned by the rules, of ascertaining in
a judicial proceeding the truth respecting a matter of fact.

This is your principal tool in answering any question in evidence.

From this very definition, the requirements for admissibility of
Name appearing in the birth certificate, Juan dela Cruz, Female.
evidence are inherent in its definition.
But Juan dela Cruz is a male.
Two requirements for admissibility:
This is not cancellation but correction. Is it Rule 108, or 9048? This
1. Relevancy; and
is substantial.
2. Competency
2017: AUSL BarOps Remedial Law Team Page 80 of 109
Relevancy – that which tends to prove In trial, there are things not sanctioned by the rules. That’s why
you object: Objection, irrelevant, immaterial, incompetent.
That is why the word “means” in the very definition signifies the
first requirement for the admissibility of evidence which is Ong Chia vs. Republic
relevancy. Ong Chia was Chinese national, his petition for naturalization was
granted. The OSG appealed that, and on appeal presented certain
What is required is that evidence is relevant, materiality is not documents which were not offered in the lower courts. Ong Chia
required. Even if it is material, if it is not relevant, it doesn’t tend questioned that it should not be admitted because it violates my
to prove, then it is not admissible. right to due process.

Example: SC: The rules of court will not apply that. It is not sanctioned,
A gun is material in killing a person. But the person was killed by because the rules itself so provide that naturalization cases are not
stabbing or drowning. Would the gun be relevant? It would not governed by the rules of court, if ever, only suppletorily.
tend to prove the issue, although that would be material.
Sasan Jr. vs. NLRC
Relevant and Material In labor cases, evidence not presented before the labor arbiter
An eye witness is testifying to the fact of robbery. He saw, his may still be presented on appeal to the NLRC. I am using the word
testimony is very relevant and material as well. Suppose in the “appeal” very loosely here because in labor cases, there are no
course of his testimony, he tries to establish that the robber was appeals.
only in grade 1.
Ascertaining – to make sure that it is the real thing
Will that be relevant in robbery? Definitely it will not be relevant,
neither will it be material. Nature of evidence:
1. Object
Sometimes it may not be material, but it may tend to prove, or 2. Documentary
what is called indirect evidence. 3. Testimonial

All of these must be ascertained.

Sanctioned – it is allowed, it is competent How do you ascertain documentary evidence?

1. Marking
The second requirement for admissibility of evidence is 2. Identification
competency. It is right in the very definition of evidence.
In may be a case of criminal or civil, when you present evidence
Competency, meaning allowed or sanctioned by the rules. Only you have to make sure that it is the real thing. How do you do
the rules? that? Authenticate.

No. It may be disallowed as well by the Constitution. In fact, very The first step of authentication, identify it, and then mark it. That
fundamental, there are matters that may very relevant, very happens under the present dispensation, during the pretrial, or
material, but you cannot present them as evidence because they preliminary conference. The authentication proper takes place at
are not sanctioned or allowed by the rules. the trial. The rationale behind the rule of marking and
identification in the pretrial is preparatory to authentication.
Two landmark cases:
Mr. Witness, I have here a deed of sale. What relation has this to
Zulueta vs. Court of Appeals the deed of sale you mentioned? That is the deed of sale.
Mag-asawa, yung asawa niyang doctor pinagsususpetyahan. The
marriage was already in danger of being dissolved. Aside from the On the lower portion, there is the name Juan dela Cruz. Whose
filing of legal separation, there was also a case for disqualification signature is this?
to practice medicine. That is may signature

One time, she went to the office of her husband and ransack the You have now authenticated the document.
office, got documents such as love letters, pictures. She tried to
present this as evidence in court. The SC said that these may be How do you authenticate object evidence?
relevant evidence but they are not sanctioned by the rules Before a witness is allowed to testify, he must take an oath. That
because in securing these pieces of documentary evidence, wife is the authentication.
has violated the husband’s right to privacy.
If the witness refuses to take an oath because of religion, he
The word rules is not limited to the rules, it may refer to a statute should take an affirmation. But witness also refused to take
(such as Anti-wire tapping Law). You cannot present evidence affirmation.
violative of said law, they are inadmissible.
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Which should be given preference, religious right or the right to
hear the truth? Common defense by accused: Planted evidence

In this particular case, the right to your religion gives way to the What is the purpose of the rule?
right to what is true because this is a judicial proceeding. If To preserve the integrity and evidentiary value of the evidence.
witness doesn’t want to swear or affirm, witness cannot testify.
How sure can the court be that he will say the truth? There can be several links in the chain of custody rule. At least,
there should be four in the chain of custody rule.
When one does not one to take an oath or affirmation, he cannot
authenticate his testimony. Therefore, his testimony is 1. Who confiscated it?
inadmissible. 2. To whom drug was given upon confiscation?
3. Who gave that to the laboratory?
Object evidence 4. Who gave that to the court?

There are object evidence which are easily identifiable, because The old doctrine, you have to present at least four chains. The new
by their very nature, they are already marked. doctrine (Gani, Posing), it is really very hard to bring them all to
court and to establish the unbroken chain is quite improbable.
For example, gun. You ask the witness, “what were you doing at Somewhere, somehow, the chain will be broken. But as long as
the scene of the crime?”. I was the police investigator. you can preserve the integrity and evidentiary value of the object,
then you have complied with the chain of custody rule.
“What did you find, if any?” I found a gun
“What kind of a gun?” A 45-caliber Furthermore, you can only present one witness to establish the
“Is this the gun which you have found at the scene of the crime?” chain of custody rule, but this one witness that you are presenting
Yes Sir knows all the chains.
“How do you know that this is the gun that you found at the scene
of the crime?” Two witnesses are usually presented:
1. The one who confiscated, brought to his boss and to the
This is authentication, you have to authenticate/ make lab
sure/ascertain that it is the real thing. 2. The one who examined

W: When I found that at the scene of the crime, I wrote in my It can be one only, as long as he is able to establish the chain and
notebook the serial number. he has personal knowledge of the matters he is testifying to.

Atty: Let’s compare. Section 21, RA 9165, requirements:

Once you have confiscated, items must be inventoried. It must be
Afterwhich, you have already authenticated because it is easily done in the presence of the accused, member of the PDEA, elected
identifiable. official and media.

If the object is not easily identifiable, make them identifiable. The truth respecting a matter of fact – offer of evidence

Atty: What did you find at the scene of the crime? How do you offer testimonial evidence? Even before he speaks
W: I found a knife the first testimonial word. After the oath or affirmation, you start
Atty: What kind of knife? to make the offer now.
W: I found a kitchen knife
Atty: I have here a knife, how do you know that this is the knife? How do you offer documentary or object evidence?
W: When I found it, I put a mark there. Before you rest your case, you have the make an offer for the
documentary and object evidence. Even if presented, still you
Objects which are not identifiable have to make a formal offer of evidence.
Example: Blood, oil, shabu
Different classifications of evidence:
First possible question in the bar: Doctrine of chain of custody Positive and negative
rule (RA 9165, Section 21) An affirmation of something negative or an affirmation of non-
existence of something is a positive evidence. Denial is negative
Doctrinal cases which amended old doctrine: evidence.
People vs. Gani
People vs. Posing Direct and circumstantial

What do we mean by the chain of custody rule? Cumulative and corroborative

This are the several steps in ascertaining that shabu confiscated Corroborative is evidence of another nature. If both testimonial
somewhere is now the shabu which is presented here in open evidence, they do not corroborate. Cumulative is evidence of the
court. If different, this is not admissible for failure to authenticate. same nature. Both testimonial or both documentary.
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Adoptive evidence (in the case of Joseph Estrada) 1. Public knowledge – that which is beyond question;
A written testimony which is believed to be true may be applied certain (e.g., Senator Leila de Lima landed as no. 12 in the
and may be admissible to the person involved or mentioned in last election, or that President Duterte won)
that documentary evidence. Mentioned in lectures as the Angara
diary. Technically hearsay. 2. That which is known to judges by reason of their judicial
Collateral evidence, in general, are inadmissible. They are
demonstrative evidence, they are not the real thing, but they Victim of rape, when she takes the witness stand, her
establish the truth of the real thing. testimony consists of badges of truthfulness.
Jurisprudence has already recognized that when a girl
Different kinds of admissibility of evidence: says what she is supposed to say, chances are she is
1. Conditional – telling the truth.
2. Multiple – one particular evidence may be admitted for
two or more purposes (e.g., in the hearsay rule, where a Minimum wage, witnesses in the country are afraid to
1) dying declaration can also admitted as 2) declaration testify, if you do not entice or urge them to testify, they
against interest or as a 3) part of the res gestae would not. This is known to judges by reason of their
3. Curative – Irrelevant or incompetent evidence is not to judicial function.
be admitted. The adverse party must also be allowed to
present inadmissible evidence contradicting this 3. That which is easily demonstrable, easily established or
evidence which were erroneously admitted. shown, in the open court.

RULE 129 – WHAT NEED NOT BE PROVED The judge can take judicial notice, March 24, 2000, was
good Friday.
Under this rule, what is the effect of evidence? Proof.
What is the use of evidence? To establish or prove a fact. Remember that foreign laws cannot be taken judicial notice of.
How about the records of the case in their own sala?
Two kinds:
1. Judicial Notice No. Not even the records in their own sala. In case #1 and #2, in
2. Judicial Admission trying case #2, the court cannot take judicial notice of the records
in case #1.
What constitutes judicial admission?
The following will constitute judicial admission: The Rules of Evidence is very practical. Under Rule 130,
1. Admissions in the pleadings (whether complaint, reply or admissibility of evidence. Look at the division of admissibility of
even in motions evidence. First, you are presented of different rules, according to
2. Admissions during the pre-trial or preliminary conference the kind of evidence. As to their nature, there is only one rule on
3. Admissions during the trial object evidence. In documentary evidence there are only 2 rules.
Remember that the admissions in the original complaint Before there are two principles, but now there are three because
are judicial admissions, However, when that original of the introduction of Rules of Electronic Evidence. Then all the
complaint is amended, the amended pleading rest will be about testimonial evidence. Do you see why that is
supersedes the original pleadings. The admissions in the so? Why there are so many Rules under Testimonial Evidence.
original pleadings become or are turned to extra judicial There are only three rules, used to be two rules on documentary
admissions. In order for these to be admitted, you have evidence. And there is only one rule on object evidence. It is
to prove them and offer them. because the strongest kind of evidence is object evidence. It is
the strongest. As far as its credibility is concerned, object
Two kinds of judicial notices: evidence is of the highest order. That is why it takes but one rule
1. Mandatory – mandated by the rules to be admitted to provide for object evidence. Next to that is of course,
(familiarize yourself) documentary evidence. And the rest would be about testimonial
evidence. Why there are so many? It is because it is the weakest
Local laws are not of judicial notice. of all evidence. But, being the weakest of all evidence,
testimonial evidence is the most important. So again, the rules
MTC judges are supposed to take judicial notice of city are necessary for testimonial evidence because it is the most
ordinances where they sit. How about the RTC? The important. Object evidence and documentary evidence, while
statutes which govern or applicable only in that locality, they have the strongest effect of credibility or acceptability or
then they are of judicial notice. even admissibility, they cannot stand on their own, because
these two kinds of evidence, object and documentary evidence,
2. Discretionary – this can only be done, or availed of before will have to be testified to. They cannot stand on their own. You
or during the trial, but not after. present a person as an example. A person can be an object
evidence, you present Mahal. Do you know Mahal or Mura? You
Three grounds before the court can take discretionary judicial present them as object evidence to establish dwarfism, that
notice: there is dwarfism in the country. Will you arrive at the conclusion
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that there is dwarfism in the country? No, someone must testify. examiner why will I be asking about this best evidence rule, when
You present Mahal or Mura to show the entire world that there it is already impractical, because nowadays all copies are original
is dwarfism in the Philippines. It requires someone to sponsor copies. This best evidence rule, of all the documentary evidence,
object evidence. Another example is a calibre-45 gun, we need to will not be asked now if the examiner is keeping abreast with the
offer or present the gun to the judge to be marked. Someone modern times. It should be electronic evidence and not the best
must tell us, what relation has this to the fact in issue. What evidence rule. For academic purposes nonetheless, you will be
relation has this to the corpus delicti. To the fact of the crime. asked what the exemptions are. You don’t have to memorize the
Corpus delicti. So someone must sponsor that. Kaya nga while exemption just use your logic. Why can’t you produce the
documentary and object evidence would greet them? Credibility original? The exemptions found in the rule are matters of logic.
and admissibility as against testimonial evidence, testimonial is Whatever the logical reason you have that could be the
the most important, because without it, these object and exemption. Why can’t I produce, because the original was lost;
documentary evidence cannot stand. The first rule there is about because the original was destroyed partially or totally; Because I
real evidence or object evidence. And what is object evidence? It can’t produce the original, why? because the original is with the
is described or defined as that which is addressed to the senses adverse party; because I will not produce the original, because I
of the court. To the senses of the court means to the senses of am only after the summary of the original. Because the original is
the judge or addressed to the judge. These refer to the five a public record, it is in the custody of a public officer. Just consult
senses of man. Because object evidence is categorized according your logic and reason you will know the exemption to the best
to what sense of man it is addressed to. The kinds of object evidence rule. Let us now discuss parole evidence. When the
evidence depends on the kind of sense of man to which it is terms of an agreement are set in writing, then there is no other
addressed to. So if that evidence is addresses to the sense of evidence of the terms of the agreement except those found in
sight, you call it visual evidence; to the sense of hearing, it is writing. Parole evidence means evidence outside the document.
auricular or audio evidence; to the sense of taste, gustatory So that any evidence aliunde is not admissible. Any evidence
evidence; to the sense of smell, olfactory evidence; to the sense outside of the document cannot establish the terms and
of touch, BBBBBBBBB. If you ask me, which is the most condition of the agreement. The rationale behind this is that
important of them. It depends on the fact of issue, although when two persons enter into a contract, they put in writing the
ordinarily what is often used in court is audio-visual. So any kind terms and condition of the contract, they have already agreed
of evidence that address not only of this world, but it can be that this will only be the terms and condition of the contract. All
seen, it can be read, or smell, like perfume, olfactory evidence of the terms cannot be established by evidence aliunde, including
foul odor. It is address also to the sense of smell. The skin, sense oral evidence. Don’t limit yourself to oral testimony, you cannot
of touch, you try to examine the texture of the skin. Olfactory prove the terms and condition of the contract under parole
evidence is a very strong evidence. So this is object evidence. evidence by other contract which is also a documents. Because
Under object evidence there are three rules, we have the best that is outside evidence. So you don’t limit this to oral evidence.
evidence rule, the parole evidence rule, and then electronic The general meaning of that is any document outside the
evidence rule. The term best evidence rule is a misnomer. It is contract are inadmissible. The reason and logic dictates what are
because the rule says, original copy of the document does not the exemptions. If your contract is invalid there is no contract to
necessarily means that it is the best evidence. This should talk about. Sometimes, the exemption also will be on the
instead be called the original evidence rule. Under the best ambiguity of the terms used in the contract. There are several
evidence rule, it is not necessarily a documentary evidence. As terms which are ambiguous. It means it can be doubly
we said precisely, object evidence maybe of the highest order. interpreted. For example sa klase, give me an example of an
When we say best evidence rule we are referring to the original. ambiguous word. Ang tagal, ang tagal, sabi ko don’t be shy.
But what you have to take to remember here is the formulation Beautiful. My gosh ambiguous ba ang beautiful. If it is applied to
of the best evidence rule. When the subject of the inquiry is the you yes. An example of an ambiguous word is when you use the
contents of a document, there is no other admissible evidence word dollar. If I have to borrow money and asked, I will tell that I
other than original. Take note of the first phrase, that is crucial. borrowed Hong Kong Dollar, contrary to what you may say that
When the content of the document is the subject of the inquiry, what I have borrowed is US dollar. So that is an ambiguous term.
so that if the content of the document is not the subject of the When you devised a real property to Mario Santos, and there
inquiry, but you are only trying to establish the existence of the happens to be two Mario Santoses. Then you’ve come to
document or the age of the document, or the quality of the establish by parole evidence. Because this agreement referred to
document, the best evidence rule will not apply. That is crucial. here includes wills. But before going into the exemptions, don’t
When the subject of the inquiry is the content of the document, forget the second paragraph, that is very important. You have
there is no other admissible evidence except the original of the there, parole evidence, then there is a second or third paragraph
document. This term original descended for the rule is getting to which are the exemptions. In second paragraph it states, that the
be passé already. The possibility of the chance of being asked in exemption must be put in the pleadings. Must be set in the
the bar is very small regarding original document, because now, pleadings. What does it means? What that means is that when
you prepare an appellant’s brief or a memorandum to be you are contesting certain terms and condition that you want to
submitted before the Supreme Court. Under the best evidence establish by parole evidence or oral evidence or by evidence
rule is what is quite important is the original, the first copy. You outside the document. You have to set that in the pleading.
have to present the original; all other copies are not acceptable Supposed there is a complaint. The complaint is based on the
or admissible. That is the best evidence rule. Nowadays, when document and when you run over the document you found out
can you say that the document is original? You only print one and that there a lot of imperfections in the document, and you want
have it xerox. Then you sign. They are all original. So if I were the to contest that in order to be allowed parole evidence or oral
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evidence or evidence outside the document, otherwise known as perform, then he is disqualified. I take emphasis on paragraph D,
evidence aliunde. You have to place in your answer that the the children, because that has been amended already. Because
contract is imperfect or there are mistakes or imperfection. If in the presentation of the problem, it appears that children are
you do not allege that in your Answer then you cannot use presumed incompetent. The presumption is there is an inability
parole evidence. Okay this is regarding the parole evidence. Let to perceive and perceiving can make known his perception.
say something about electronic evidence. For purposes of the bar Under the rule on the examination of a child witness, the
there is only one question possibly being asked under the presumption now is that a child is a competent witness.
electronic evidence rule and that is the necessity of Therefore if you want to assail the competence of a child, the
authentication. How do you authenticate electronic evidence? rule now favors the competency of a child. If you want to assail
Answer, to authenticate electronic evidence, it must be by the competency you have the burden of proof. Under the rule on
someone privy to the document. One who is not privy to the the child examination witness, so if you assail or impugn the
document has no right to authenticate the document. How competency of a child to testify, you have to establish it by the
about an expert witness? That could be an exemption. If you competency test provided for in section 6 of the rule on
cannot get someone privy to the document, then you can secure examination of a child witness. What is this competency test
the testimony of an expert witness. For example, you are trying about? This is not a psychological test. This is a regular
to present evidence of text message, you have to present your observation of a searching question of a judge to simply establish
cellphone to the court. And show to the court that these are the whether or not a child is competent and how will the judge
copies of the text messages which are hereby printed. Compare. establish the competency of a child? Through his questioning, he
So that we have to mark here. But when presented, you have to must determine if the child knows the difference between
authenticate before the court the messages you have received truthfulness and falsity. That is the only objective of competency
from somebody. In other words you are privy to the document. If test. If the child does not find the difference between the two,
someone is testifying, for example, Mr. X texted Mr. Y and these then he is incompetent. There is a jurisprudence that a four year
are the text messages ( other example, chats, email, etc.). You old child was considered competent to testify. But another, a
cannot do that in court because you are not privy to the two year old was considered to be incompetent. While he is able
document. I know a possible expert witness here, the service to perceive, he cannot make known his perception. Under the
provider. Electronic evidence can only be authenticated by rule, the competency test must be done in seclusion, away from
someone privy to the document. The best evidence rule will not the general public. What is live link testimony? You can find that
apply here because electronic evidence are not considered in the rule on the examination of a child witness. I think section
original document. They are only, at best, reproduction. So you 25. That is secluded testimony. You isolate the child with the
have to distinguish another point in electronic evidence. You help of testimonial aids (diaper, gun, person, play toy,
have to distinguish electronic message against electronic data anatomically correct doll). Testimonial aid is different from
and electronic document. Electronic document consist of support persons. Support person is anyone who accompanies the
electronic data or message, but these electronic document child (relatives). You have also a term there called facilitator.
creates rights or establishes rights or extinguishes obligations but Who is a facilitator? A facilitator is one who propounds question
not electronic data message. So notice the distinction. For to the child relayed by the parties concern. To this facilitator, the
example, you send a contract to the US through email. Of course child has trust. There are questions barred to be asked to the
you signed it, it is called electronic signature. Electronic child (sexual abuse shield rule). One, the sexual propensity of the
signature, you know, is not always a writing. Electronic signature child. You cannot ask regarding past sexual encounters of the
can only be an electronic sign. But it can even be a sound. Back child. But there is an exemption to bar this rule. If you are going
to my example of the contract, he improves it makes certain to establish that the accused is not the source of the semen
corrections and send it back to you. That is electronic document. found in the vagina of the child, then you can ask specific sexual
Suppose what you send is a contract of rescission, then it encounter of a child.
extinguishes an obligation. As distinguished from simple
messages that do not create rights or obligation. Let’s go now to HEARSAY RULE
testimonial evidence. I asked you to memorize the definition of
evidence. Evidence is the means, sanctioned by the Rules of There is a lot of misconception of Hearsay Rule. The
ascertaining in a judicial proceeding the truth respecting a matter layman often apply very loosely, they simply say, oh that’s
of fact. Then the next thing that I want you to remember and hearsay. Meaning to say, it is unbelievable. That is not the concept
preferably memorize is the qualification of witnesses. This is also in legal parlance of hearsay. A hearsay rule in legal parlance is that
a catch all provision. That is in section 20 of the rule. One who which is not admissible. Why not? Because it is incompetent.
can perceive and perceiving and can make known his perception
can be a witness. Can a blind man testify? If you forgot the For admissibility of evidence, Evidence is the means,
landmark case, use that general rule. Can a deaf-mute testify? sanctioned by the rules, of ascertaining in the judicial proceeding,
use the same. Three requirements, first, one who can perceive the truth respecting a matter of fact. The word sanctioned, means
means the ability to observe. Perceiving, the ability to competency. So hearsay is an incompetent evidence because it is
remember, recollect or recall, can make known his perception, not allowed by the rules. It is the only reason. The rationale behind
communicate what he can recall. Next we go now to the non-allowance of hearsay evidence maybe diverse. But
disqualification. Who are disqualified to testify? The following fundamentally or basically, it is because the rule does not allow
are disqualified to testify, under section 21, whose mental the admission of hearsay.
condition is such that he is unable to perceive or perceiving can
not make known his perception. Any of the three he cannot
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But whenever we say hearsay for purposes of other than the fact that B is the killer of C, that is independent of
admissibility, we have always to consider the purpose. What is the the fact that B killed C. That is why you called that the Doctrine of
purpose of the testimony in order that it will become hearsay? Independently Relevant Statement.
This is the most important part of the hearsay rule. You have to
know what is the purpose of so saying of stating so because if the [Another example] Let’s analyze the testimonies of
purpose is not to establish the truth of the statement which you Colangco. Some are hearsay, because they simple establish the
heard from someone, that is not hearsay. That is why, in a hearsay fact of drug business and it was taken from other sources. But if
rule, three important requirements must be consider: Colangco is stating or is trying to establish the fact that someone
1. There must be an out of court statement or told him, that’s the end of it. Independent of whether or not there
declaration; is a drug business inside the National Bilibid prision, that is
2. That the out of court statement or declaration is admissible. Independent of the fact as the cause of the subject
repeated in court; and matter of the case.
But hearsay does not yet apply, what is the
purpose of repeating that out of court statement in This Doctrine of Independently Relevant Statement is
court? If the purpose is other than to establish the often asked in the Bar. It has a batting average of fifty percent. It
truth of that out of court statement, it is not hearsay, can be asked as an exception or as a rule itself.
it is, therefore, admissible.
3. That the out of court statement or declaration is Take note of the Hearsay Rule. The three requirements,
repeated in court for the purpose of establishing the [a] there must be an out of court declaration [b] repeated in court
truth of that out of court declaration. [c] for the purpose of establishing the truth of the out of court
declaration. If it is not to establish the truth of the out of court
Example: Mr. X is on the witness stand. He is in court. He declaration but other matter, then that is admissible under the
testifies this way, Mr. A told me that B killed C. Who is saying that? Doctrine of Independently Relevant Statement.
X. Where is X saying that? In Court, he is testifying. His testimony
is that A told him that B killed C. That is the out of court Exceptions [to the Hearsay Rule]:
declaration. Who made the out of court declaration? It was A
telling X that B killed C. There are several exceptions under the rules but will
point out only which are quite important or possible being asked.
So the two composite of hearsay rule is present. There is
an out of court declaration repeated in court not by the declarant 1. Dying declaration.
but by Mr. X. So the 2 components are there already. But is it
hearsay? As of now, not yet because you don’t know the purpose What is the rationale of this? It is clearly
of that statement of X that A told him that B killed C. C is the victim. hearsay. All the requirements of hearsay are present.
C is the subject matter of the case and X is testifying that A told Just the word itself will give you an idea why it is an
him that B killed C. exception, by underscoring the word “Dying”. The most
important in a dying declaration is consciousness of
Question: What is the purpose of X testifying that A told impending death because all the other will just come as
him that B killed C. Suppose at the time of the testimony, the a matter of course.
adverse party said: Objection your honor, that’s hearsay. What is It is not consciousness of death because all of us
the purpose? The court asked now, why are you telling the court are conscious of death. We are conscious of dying. In fact
that A told you that B killed C? [X] I want your honor to show that I call death as the most certain uncertainty and the most
on that day that A told me that B killed C. [However,] B was alive. uncertain certainty because it will definitely come but
The fact that B was alive, is that the subject matter of the case? you do not know when it will come. That is why the
No. Is that hearsay? No. Because what is under consideration is consciousness here is that of impending death, not just
the death of C. This is not hearsay. So the objection is overruled. consciousness death.
How does the rule construe of the word
Suppose the court ask X, Mr. X why are you telling that A impending? You are aware that you are going to die six
told you that B killed C? I want to show your honor that B is the months from now? That is not an impending death. You
killer. That would be hearsay. That is inadmissible. That is the are aware that you are going to die one week from now?
subject matter of the case. You are not. That is not what is meant here of
consciousness of impending death. You are aware that
The first example is what we call, which is often given in you are going to die NOW. This is what consciousness of
the Bar, the Doctrine of Independently Relevant Statement. You impending death means.
are not establishing the fact subject matter of the case, but you
are only establishing the fact that there was statement made to Should this be established, therefore, by the fact
you by A. What is the truth of the killing by B of C? That is that the situation of a dying person even without saying
independent. What is relevant in that testimony is to establish a word? Yes. This consciousness of impending death can
who is the killer. And the statement [that] A told X that B killed C. be established even if no word was stated by the dying.
Are you establishing the fact that it was B who really killed C? If The term declaration of statement is not absolute.
that’s the purpose of your testimony, it is hearsay. That is
inadmissible. But if your purpose in so saying, in so testifying, is
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Death is what you are going to testify to. The occurrence. When you speak of a startling
fact of death. occurrence it is to an average individual.

The requirements of admissibility in a dying For example you are walking in

declaration, you don’t center only on the fact that it is an Luneta and you were following a man, all of
exception to the hearsay rule. You have also to establish the sudden he saw you. About 10 meters
the requirements which are basically: relevancy and away, you were following a man and talked
competency. to each other. All of the sudden you saw the
head of the man rolling towards you. It was
For example, the declarant is blind, he was hacked by a man. You mean to say that an
under the conscious of impending death, and he said: average man will not be startled by that
Mario shot me! How can he know if he is blind? This occurrence? So when you declare, that man
exception to the hearsay rule, the court does not have to with a samurai is the one [he] did it, that is
admit that who __________. You can still assail the a startling occurrence, that is part of the res
testimony through the requirements of admissibility of gestae. There is no time to contrive. It is
evidence which is either relevancy or competency. spontaneaous.

Take note of these requirements: In all of these, the first

requirement in the hearsay rule is that the
1. The subject matter must be about the declarant is dead already. Because if they
death of the declarant; are alive, you should place them on the
2. What is testified to, are the facts and witness stand.
circumstances surrounding the
declaration. Surrounding the fact of Under jurisprudence, the time
death; and frame is not fixed. There is no hard and fast
3. Consciousness of impending death. rule regarding time frame. For example, a
victim of rape, after the act of rape was
The statement should not always be in favor of consummated; the young girl just went on
the declarant. It can be also used against the declarant. It the corner of the room and started crying.
could be in favor of the accused. So don’t limit it to the After two or three hours, the mother found
fact that a dying declaration is always offered in favor of out, coming from market, finding the girl,
the declarant or in favor of the government. When I say her child, in the corner crying and asked her
government, I am talking of a criminal case. Although this what happened, and answered that a man
dying declaration is now no longer limited to criminal raped her. It is considered as part of res
cases. Even in civil cases, this is already admissible. It gestae even after three hours from the time
used to be only in homicide cases and later on it was it was happened. It is still considered as long
admissible in criminal cases but now under the present as the effect on the person is still there. The
rule, in all cases. So whether it is civil or criminal case, effect of rape is not just a matter of hours;
then you can avail of this dying declaration. it is a matter of years. Although, what was
said is what is to be testified to why it is part
of the res gestae.
This exception must always be tied up to the
part of res gestae. As previously discussed regarding In another case, after 24 hours or
multiple admissibility that statement or evidence may the following day, the victim of rape started
either be admitted as a dying declaration or only part of narrating to the mother. The Supreme
the res gestae. It can even be considered a declaration Court said, it is no longer part of the res
against interest. With regard to part of the res gestae, gestae because there is already the
sometime, it may not be admissible as a dying declaration possibility of contriving.
but it can be admissible as part of the res gestae.
Sometime also, it is only part of the res gastae or lying So there is no hard and fast rule in
declaration but not part of the res gestae. res gestae. If you are given a problem
regarding this res gestae, answer it
Other exception on the part of the res gestae: according to the facts and circumstances
and argue accordingly and your argument
The thing done, that is what res gestae must not miss the fact that the effect of the
means, literally. occurrence is still with the victim. The
startling occurrence is still affecting the
But legally or procedurally, the victim because you cannot fix it with time.
part of the res gestae are acts which are
stated or uttered in a very dire situation. Another part of the res gestae is
Yung mabilisan. The word is startling what you called the “words accompanying
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an act” or sometimes called “Verbal Acts”.
For example, from a distance you saw Mr. A i. The entrant must not be available;
waving an envelope to Mr. B, and with the ii. The entry made by the entrant is in
passes of that act, Mr. A was saying, ito na compliance with his duty;
yung 10,000 na inutang ko sayo. So that is a (important requirement) not just
verbal act. You cannot no longer say that it by anybody who made the entry,
was a donation because of the verbal act. he must be performing a duty; and
iii. This entrant is the one which is
Words accompanying acts can also hearsay in effect, because it is a
be considered as part of the res gestae. declaration statement out of court
repeated in court to establish the
2. Declaration against interest. fact of the entry in the course of
In this kind of an exception of the hearsay
rule, is has broaden by recent jurisprudence. It What is the concept of course of
covers all kinds of declaration against interest not business? Should it really be a business
only pecuniary or financial declaration against transaction? No. Not necessarily. What is
interest; it can also be psychological, emotional, or referred to here is that to any transaction.
A baptismal certificate entered into a
When someone say, for example, that my book or records of baptism is now considered as
companion is not a real wife. Declaration against an entry in the course of business.
interest. Or I am not the owner of the land where my
house stands. It is also a declaration against interest. 6. Entries in the official records.
But take note always of the requirements. The
declarant is not available to testify, otherwise, the What are these official records? These
hearsay rule will not apply. are Registers, Court records, and Certificates.
How about police blotter? As a general rule,
3. Declaration about Pedigree. they are not because [it is] known as hearsay on
hearsay. When are these police matters
Pedigree is a notable fact in the life of an admissible as exception as part of official
individual. That is the general meaning of Pedigree. records? It is when [it is] given to the police by
Notable fact or situation in the individual. The someone who has personal knowledge about
enumeration there must be lumped together into a the occurrence. That would be an exception to
notable fact, something important in the life of an the hearsay rule.
individual that is about Pedigree. Like relationship by
affinity, by consanguinity, a fact of marriage, For example, there was a vehicular
relationship, this is about the Pedigree. accident, a policeman arrived and recorded the
event and recorded it officially in the blotter,
4. Related to that would be the common reputation. could it be use as an exception to the hearsay
rule? Yes, because this is [an] entry in official
This is not limited to statements. This is record. But, if a person who is privy to the
considered as acts. For example, in Cavite there are accident, he decided to report the accident, but
some people with that common reputation. In instead he called his sibling to blotter the
Tondo, Boy Tumbling. In Province, they don’t know accident then the police made a blotter. Is that
the real name but they are known in different name. admissible as an exception to the hearsay rule?
This can be part of common reputation. This is No. Because this is known as hearsay on a
admissible as evidence. hearsay.

5. Entries in the course of business. (Possible bar 7. Returns. They are exception to the hearsay rule;
question) 8. Learned treaties;
9. Commercial lists;
The entrant is not available to testify in 10. Testimony at the former trial. (possible bar
court. This should what you always look for in this qsuestion)
exception, is not available. The general rule,
testimony must be done in open court and the This may be tied up with depositions.
exception is out of court. So if he is available, put him
in the witness stand. If he is not then that is the only Admissible? Yes. As an exception to the
time that you asked other who have heard him. The hearsay rule. But take note, it must be the same
requirements for entries in the course of business parties and there was an opportunity to cross
2017: AUSL BarOps Remedial Law Team Page 88 of 109
examine the witness by the other party to Mr. X: Well, I was his employee for the past twenty years,
comply with the cross examination rule. I know his signature, I am familiar with his
Section 20 of rule 3. Contractual money
claim. There are many interelations involved, it It is an exception, that is an opinion.
is interelated to Rule 39, related to Rule 86,
related to Rule 87, related to Rule 57. If these will
Atty.: Mr. Witness, do you know Mr. Juan Dela Cruz?
be asked in the Bar, they are the difficult Mr. X: Yes I know him.
questions. Atty.: How do you describe his mental sanity?
Mr. X: I think he is mentally challenged.
Atty.: Why mentally challenged?
11. There is an exception to the hearsay rule which is not Mr. X: Well, we were together in the mental hospital. He
found there among the eleven (11) which is the just left ahead of me.
Testimony of a child. We have discussed this already
under the child witness rule. The other exception is that of an Expert Witness.

OPINION RULE For purposes of trial in court, when you present an expert
witness, you have always to lay the bases, lay the predicate
Under this rule, it simply means that in court, a witness because if you do not establish his expertise on a particular
cannot give his opinion. Under the basic qualification, one who matter, then you cannot ask him about his opinion. So lay first the
can perceive and perceiving can make known of his perception, in bases.
other words, the knowledge that came to him was on account of
his personal observation not what he opines. In actual practice, if you are going to present an expert
witness, you should prepare already the biodata of your expert
In actual practice, be very careful when you get to become witness. And before you present him in the witness stand, you
lawyers. If you are coaching a witness, it does not necessarily furnish a copy of his biodata to the Fiscal, if criminal case or to the
[means] that you are cheating but you are teaching the witness adverse counsel if it is civil case. That’s why when you go to the
how to correctly testify. For example, you tell him never premise court, you simply ask the adverse counsel if they are going to
your testimony by saying “I think” because that is already accept his expertise.
objectionable. That is already a matter of opinion. “I believe” [is]
already a matter of opinion. Opinion[s] are not allowed in the For example, the fiscal said, “no, I don’t accept his
course of the testimony. expertise,” it will take time to lay the predicate. You have to lay
always the bases.
What are the exceptions? As an ordinary witness, there
are exceptions four (4) exceptions: There is a certain witness that an expert witness is
required. Like today, declaration of nullity of marriage is
1. When you testify in the handwriting of an individual; psychologist.
2. When you testify on the identity of an individual;
3. When you testify on the mental sanity of the When you have already established the expertise of this
individual; and witness, you can ask him opinions because that is an exception.
4. When you testify about your impressions on the
individual. Once the expert witness has testified, generally, don’t
cross examine. When you present a expert witness, as a general
For example, you call Mr. X on the witness stand and you rule, if you are not an expert on the subject, you should not cross
show him a document. examine because you will not get any from him because he is an
expert and you are not an expert on the subject unless he is a
Atty.: Mr. Witness, I have here a document, please go lawyer and discusses legal matters, then you can cross examine
over page four. What do you see on page four on him. But if he has another field, let us say Structural Engineer,
the right hand lower portion? what do you know about it? None.
You find there a printed name Juan Dela Cruz,
above which is the signature. Atty.: Whose signature is After you controvert that expert testimony, you
that? controvert him by presenting also an expert witness or even a
Mr. X: This is my signature. more expert witness. Then let the court evaluate who is the better
witness between the two.
Will that be an exemption to the hearsay rule? Of course
not. The opposite of an expert witness is what you call Lay
Witness or Lay Evidence (possible bar question).
Atty.: This is the signature of Juan Dela Cruz. How do you
know that it is the signature of Juan dela Cruz? Lay Evidence is simply the testimony of a non-expertise
witness on ordinary matters.

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defendant, third, fourth or fifth defendant, that is why the burden
Under Rule 130, the Character. of evidence shifts but not the burden proof.

What is the general rule? Character evidence is Reminder: Passing the bar does not only need a push from below
inadmissible. Not admittable. but a lift from above.
Elmer was 16 years old when he was presented as the primary
Exceptions: child witness against the accused. 5 yrs. thereafter, he was again
presented as a witness to be examined in the same case. His
1. In Civil cases, any character, whether good statement 5 yrs. ago became inconsistent with his current
or bad, can be establish in civil cases if it is statement. May his statement 5 yrs. ago which was conceded as
relevant to the case at issue. privileged be still appreciated?
2. In criminal cases, you can establish the Ans.: What is privileged remains to be privileged. It will not change
character only in rebuttal. through the years. This is only conjectural. Unang una meron ng
rule ngaun the 1 day-examination of witness rule kaya malabo
Rule 131, On Burdens of proof and presumptions. nang mangyyari yan.
May he be impeached? It is another matter covered by Section 11
What is the burden of proof? The burden of proof is the of Rule 132. Impeachment of a Witness. You can always
duty of a party to establish his claim. Whoever has the claim has impeached witness provided there are grounds. It will be discussed
the burden of proof. So don’t immediately say that it is always the later.
plaintiff because you may be trying to establish the claim in a Burden of Proof and Presumption.
counter-claim and, therefore, if it is the claim in the counter-claim, What is a presumption? A presumption is an inference. You
it is the defendant which has the burden of proof. Whoever has a arrived at a conclusion – a logical conclusion. There are two kinds
claim has the duty to prove his claim. of inferences:
1. Presumption of Facts – is a simple inference. Any object
In criminal cases, we often say, that the burden of proof which is lighter than air will have to fall down when thrown.
sticks or remains with the prosecution. Because what is in the Pag tumapon ka and that object is heavier than air it will fall.
criminal case? The criminal case is nothing else but to show that Inference: Living things grow and die. Very simple inference.
the accused is guilty beyond reasonable doubt. There is no other 2. Presumption of Law – is an inference directed by laws. Under
purpose in criminal case but to show that the accused is guilty for our rules, there are only two kinds:
which he was charge. Therefore, the obligation to prove that guilt
never leaves the prosecution at all times from the start to the end Two kinds of presumption of law:
because in criminal case, there is no counter-claim, cross-claim, a. Conclusive presumption – that which cannot be
third-party or fourth-party complaint, there is even no controverted. Court
intervention. That is why the burden of proof sticks to the has no other choice but to accept
prosecution because there is no other thing to determine in the
criminal case except the guilt of the accused. Two (2) Conclusive Presumption
i. Estoppel in Pais – when you make a representation
However, when the accused interposes self-defense, to somebody and that somebody on the basis of your
(remember Rule 6 in kinds of pleadings, affirmative, self-defense) representation acted on it whether negatively or
meaning to say that he already accepts the facts for which he was positively, then you can no longer deny the fact of
charged. He has not confessed. He already admits the fact of your representation. You are estopped!
killing but he does not confess to the fact of killing. That is why
even in an affirmative defense, the burden of proof never leaves Ex. I am the agent of Mr. X selling to you property of
the prosecution because the only thing that the accused does is to X and you on the basis of my representation believed
admit the fact and never confess to guilt or acknowledgment of that I am the agent of X, you enter into a contract
guilt. But because of this admission what shifts now the burden of through the principle of agency with me. I can no
evidence. longer deny agency because I am in estoppel ----
conclusive presumption; cannot be controverted.
What is the burden of evidence? The burden of evidence
is coming forth forward with the evidence. Meaning, who will now
present evidence? This is sometimes called reverse trial. The
ii. Estoppel by a Tenant (lessor/lessee;
burden of evidence now is with the accused. He now starts to
landlord/tenant estoppel) – A lessee for example
present setting forth forward the evidence of his claim. Since he
who is the occupant of the premises on the basis
has now a claim, self-defense. But has he the burden of proof
of accepting the fact of contract of lease. You
now? No, only the burden of evidence.
accept the fact that lessor duly authorized to
enter into contract. You cannot deny anymore
It is easy to understand the Burden of Proof than the
the authority of lessor in leasing unto you the
Burden of Evidence in Criminal Cases than in Civil Cases. Because
the Burden of evidence in civil cases is shifting many times. But
the burden of proof will always remain on one who has a claim.
Also, it is not always the plaintiff who has the claim, it can be the
2017: AUSL BarOps Remedial Law Team Page 90 of 109
A leased to B a parcel of land. B cultivates it. and one of the steps is not complied with, the
Later on B found that A is not the owner. He stop disputable presumption is not applicable.
paying rental for the said reason. Is the reason
valid? No! When he enter into the contract, he iii. Paragraph “w” – Absence. Gen Rule: any one
acknowledge the fact that A has authority to who has been absent for seven (7) consec. Years
lease the property unto him. He is therefor in without news of the absentee being alive, he is
estoppel. presumed dead. This is disputable presumption.

b. Disputable presumption – there are 37 disputable Exception:

presumptions (“a-kk”). (Atty. Brondial pointed out only what (1) for the purpose of opening one’s sucession,
are possible bar questions) absence must be at least 10 years. Exception to
the exception: unless the person who
i. Paragraph “e” (Suppression of Evidence). The disappears was at least 75 yrs. old.
requisites are as follows: (i) Willful suppression. (2) Instead of 7 years, there are certain
(ii) evidence must be material not just circumstance where period of absence is only
corroborative; and (iii) evidence is not available 4yrs. (i) goes to war, and has not returned after
to both parties (Improtant!) war ended; (ii) there was earthquake, plane
crash, etc.;
Example #1 (negative): In a case of rape, victim (3) with regard to marriage, it can also 4 yrs.
was not presented as a witness. When the Under circumstances mentioned above (war,
accused was convicted, he appealed. One of the earthquake, etc.), presumptive death of 2 yrs.
ground raised was suppression of evidence. for purpose of remarriage.
SC: There was no suppression of evidence in this
instance because evidence which is testimonial is Absence in settlement of estate – estate exists
available to both parties. If prosecution did not only when someone died. Death can either be
present victim as a witness, you could have factual or presumptive.
subpoena the victim and present as hostile
witness. While the 1st and 2nd requisite may be iv. Paragraph “aa” (Cohabitation). When a man and
present, 3rd requisite is not. All requisites a woman deports themselves as Husband &
mentioned above must be complied with. If one wife, it is presumed that they entered into a
is lacking, there is no suppression of evidence. lawful marriage, That is disputable
Example #2 (positive; Brondial’s own case): My v. Paragraph “bb” Whether capable of getting
client (former law student in AUSL) filed a case married means effort are undertaken jointly
against hospital charging it as a corporation, as
well as the doctor, nurse chief of Dept., for vi. Paragraph “jj” (Survivorship rule). Who survives
damages, because his son died. Nanganak, when two persons alleged to have died together
premature ang anak but died on 43rd day. During (matter of minutes, hour, etc.) Presumption
trial, I was taking direct exam. I have hospital provided by the Rules, ex. Male survived over
record. I noticed I have only record from day 1-40, females.
wala ung days 41 to 42. In open court, I manifested
that I need this 2 missing records immediately In legitimacy – no presumtpion, one who claims
preceding the death. The defendants said we will the legitimacy or illegitimacy has the burden of
produce the record. They were given certain proof.
period of time but unable to produce record.
Requested extension but still failed to comply. I
moved for the suppression of evidence which the
court granted! What is the effect? That I want to
establish is deemed establish. There is clear Three Parts
suppression of evidence because all the three (3) 1. Presentation of Evidence (Sections 1-18)
requisites are present. Namatay ung bata kc my 2. Proof and Authentication (Sections 19-33)
misfeeding, hndi napadede sa tamang oras which 3. Offer and Objection (Sections 34-40)
may contain in that record, I assume.
Salient Doctrines

1st part
• When you present evidence, must be in open court.
ii. Paragraph “m” (Chain of custody rule).
Under the Constitution, a party is entitled to a public,
Regularity in the performance of a public
impartial and speedy trial. Public means open court --
function. Commonly applied in drug cases – buy-
-- testimony and gathering of evidence must be in
bust operation. If there are steps to be followed
open court. Opposite: in-chamber. Exception and in-
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chamber usually when it is a crucial case or involved • In Rule 23, we discussed about Depositions. This is the
privileged communication. Ex. Support, annulment, same in giving testimony in open court. Ang mahirap
rape case, etc. sa depositions, ung written interrogatories, you
• All trials/proceedings must be recorded. All courts should prepare it ahead of the examination
now are “courts of record. There is official recorder (questions on direct exam, cross, etc.). You prepare it
(stenographer). The recordings is called the Transcript even without answer yet kya mahirap.
of Stenographic Notes “TSN”. Under the rule, TSN is • Trial proper starts with Direct Exam of Evidence in
prima facie correct. Chief – not limited only to principal witness. In direct
exam, there are prohibited modes.
Brondial note: For more than 30 yrs., I have never i. Leading questions – those which suggest the
found a TSN without an error. Before you proceed with answer. Generally, questions answerable by yes
the next hearing, go over the TSN because errors may or no are leading questions.
be fatal. You have to distinguish that from
misleading question – those that assume a
• Manifest before the court, if you found fact to have been testified when in truth it
error in the TSN. Ex., there is error in parag. # xx has not been or assumed a fact different
page xx, so on and so forth (isa-isahin mo!). from that which has been testified to.
Sometimes, error is very substantial/fatal, in fact Misleading questions are not allowed. But
if you ask for correction, other party will not there are lawyers who ask misleading
agree. What will you do? Recall. If trial is not yet questions purposely e.g., to find out
ended, you can ask for continuation of whether adverse party is paying attention
direct/cross examination. You think of ways how to what is going on (kung
to correct the error. natutulog/tatanga-tanga and kalaban
ppasok ang question mo).
Note: Tie this up with Appeal. If appeal with the Nowadays, judicial affidavit (JA) is being
Appellate Court, record must be complete. What used, but with more reason that you should
if record is incomplete? Inform the court so that it examine the JA. Under JA rule, there may be
will be completed. Supposed it can no longer be a lot of leading and misleading questions.
completed, ex. nasunog, you should file a Petition Remember that it is direct exam, leading
for Reconstitution of Judicial Records. Otherwise, questions are not allowed. As adverse
appeal cannot be done. Remember that the party, you should bother to examine
requirements for Appeal are complete records because most of the questions in the JA is
and attachments of certified true copy of answerable by yes or no.
judgment. • If you go immediately to cross exam, all the leading
questions there are deemed waived. So even before
• In the course of presentation of witness, you you undertake the cross, you should made the proper
should respect him/her as individual with manifestation, Your honor, I object to the following
constitutional rights. You should not keep him questions… xxxx”. I moved to strike out the following
longer as she is supposed to. Do not ask him questions #1, # 3, xxx for being leading questions.
question that are irrelevant.
Supposed the court said it remains, what will happen
In criminal case, one of the rights of the accused if you cross exam? You put on record that you object
is the right against self-incrimination. It can be in not striking out the question for being a leading
invoked anytime before or during the time of question.
• Leading questions are allowed in certain
• Order of Presentation of Evidence is difference circumstances under the rule:
from Order of Trial. Under Rule 132, you have the 1. Preliminary question – you call the witness. Say:
order of presentation of evidence as against the Mr. W are you the Plaintiff in this case.
order of trial under Rule 30 (Trial). In the latter, (Preparatory only and that is allowed. Laying the
you start with the Plaintiff, Defendant, Co- predicate yet).
defendant, 3th Party, etc. and the last to present 2. Child witness – child must be lead. They are
is the Intervenor (if there is any). presumed to be truthful or not yet capable of
telling lies.
Under Rule 132, when Plaintiff presents, what 3. Adverse witness (kalaban). You don’t have to lay
should be the order? predicate because it is of record. Ex. Defendant -
a) Direct exam you never find cooperation with that kind of
b) Cross-exam witness.
c) Re-direct 4. Hostile/Unwilling Witness – Remember when
d) Re-cross you witness is hostile or unwilling, you have to

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qualify it. You lay the basis, otherwise you can ask
leading questions.
Sec. 16 Memorandum
Ex. Counsel: Mr. X, I am calling him as hostile
witness. There are two principles here:
Judge: Why counsel? 1. Present Memory revived
Counsel: The record will show the three (3) 2. Past Recollection recorded
subpoena ad testificandum were issued to
this witness but never complied. As a basis: remember that you can only
Judge: Why is he here now? testify on something that your personally
Counsel: I moved for the issuance of warrant know. While testifying dapat wala ka
How can you expect him to cooperate? kodigo. You tell what you actually saw,
That is why you have to qualify for you heared, etc. You are not allowed to read.
to ask leading questions.
• What is present memory revived? –
5. Cross examination – you go over or cross-over With leave of court, Counsel can ask the
the bridge. You can never expect cooperation court to allow you to revive your
against the adverse party that is why leading memory. If ever there are notes/writing
questions are allowed. that will refresh your memory so that
you can correctly state the truth, court
• Incidentally, you can never impeach your own may or may not allow that.
witness, you should not unless
hostile/adverse/unwilling. If it is the witness of the Ex. on you way home, you saw a man
other, then on cross exam , you can impeach the clubbed by the robbers 10-m away from
testimony. your residence. You look over, he was being
attended to, you saw two wounds from his
body, blood oozing and about to die. When
3 Ways to Impeach (Testimony Adverse) you arrived home, you are fond of writing
1. Contradictory evidence diaries as to what transpired for the day.
2. Contrary statement in some other forums or other You wrote there what you witness. Then
occasions you called in a witness stand, and ask about
3. Impeaching character/reputation – dangerous! Why? what you saw, you said it was already more
Because you might go to character evidence and than 2 yrs. ago and you cannot recall.
character evidence is inadmissible. You have to clearly Counsel will ask the court to invoke present
lay down that his honesty and integrity is memory revived. If allowed, you can go
questionable. You must have basis in the course of over you diary and then testify.
Limitations: After testifying, you cannot
Section 4, Rule 23 (Use of Depositions) already give moved that diary be marked as
example in impeaching witness through contradictory documentary evidence because the
evidence. Any depositions can be used to impeach the purpose of diary is only to refresh --- cannot
testimony of a deponent, i.e., by showing the be corroborative evidence.
deponent that his statement in deposition is
contradictory against his testimony in court. • Past recollection Recorded – witness
Ex. Former statements – witness now testifying that has no recollection whatsoever to what
he saw the accused, In fact, the prosecution asked transpired. It can only testify based on
him to describe the accused. The witness described the record/memorandum. You can have
the accused something like this, “fair complexion, memorandum mark in evidence unlike
wearing white tshirt, etc. xxx”. In order to impeach the present memory revived.
him, you confront him with his Sinumpaang Salaysay
before the precint, he stated there, “how can I Ex. One who is conducting autopsy in
describe the accused when I did not see him clearly”. medico-legal cases. Supposed on the
The foregoing are contrary statements. That is how t witness stand the doctor said, he is
impeach. conducting 3 autopsy a day.
Counsel: Do you recall conducting Cadaver
Do not confuse that with Sec. 29 (Impeachment of X?
Judicial Records). How to impeach? Doctor: Yes
(i) Lack of jurisdiction; Counsel: What is the result?
(ii) (ii) Collusion; and Doctor: Let me refer now to my
(iii) (iii) Fraud memorandum.

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Cadaver X - 3 gunshot wounds; one That is the doctrine of incomplete
was fatal and which pierce his testimony.
heart, went out, trajectory, etc.
Proof and Authentication
The doctor has absolutely no recollection
unless with the memorandum. Counsel will Partly discussed under the definition of
move that the report/memo be marked in Evidence – means sanctioned by the rule
evidence as Exhibit “L” for instance. ascertaining in a judicial proceeding the
truth respecting a matter of fact. This
(Brondial: Referring to above, the possibility portion of the rule refers to the word in
of being asked is minimal) the definition “ascertaining” which is
actually authenticating or making sure
• Doctrine of Incomplete Testimony that it is the real thing.
How is testimonial evidence completed?
When all parties are given opportunity
as provided for by the rules. Meaning to
say, direct, cross, re-direct, etc. If you Under this Section (beginning with Rule 19 of Rule
forgot something, then your remedy is 132), there are two kinds of documents:
(i) recall of the witness (not a matter of
right); or (ii) additional direct, cross, 1. Public documents – rule does not define but
redirect. Unless it is completed, enumerate only
testimony is incomplete. Ex. public records kept in the agency or the office,
of private writings
Is incomplete testimony admissible to (see enumerations in Sec. 19; Rule 132)
the point that it will be used as the basis
for judgment/decision? 2. Private documents – all other writing are private.
Answer: You have to qualify as to who
cause the incompleteness of the Ex. Marriage contract – private writing not a public
testimony. If cause by the party, then it document. If you file a Petition for Nullity, marriage
will be disadvantageous to him. contract is needed. You should get from NSO, it
must be authenticated. You get public record pf
private writing. So that, when you present that, you
don’t have to call as witness the priest who
solemnized because if from NSO, it is already
Ex. During direct examination the authenticated.
counsel has completed it saying, I have
completed the direct testimony. Next Documents acknowledge before a notary public
cross. The lawyer said, I have another (not a simple jurat). No need to be authenticated if
hearing. I moved for continuance. The there is acknowledgment.
Court granted and the hearing was reset
2 weeks from said date. On the day set, Ancient document Rule – don’t need
the witness died. authentication. Requirements: (i) any document
more than 30 yrs. old. (ii) not only the age but it is
What happens to the incomplete required that document must be found where it
testimony? Will it form part of the should supposed to be found; (iii) no alterations;
record? YES! The cause of the and (iv) no circumstances of suspicions.
incompleteness is the Defense and the
witness is for the Plaintiff. Whoever Offer and Objection
cause the incompleteness will be to his • Discussed on the definition of evidence, “the truth
disadvantage. respecting a matter of fact”
• How do you offer? It depends.
Other side: I am undertaking a direct 1. Testimonial evidence – make the offer even
exam. Then after my direct, the Court before the witness says his 1st testimonial word.
said, “Ok counsel, cross”. Then the Offer must be brief but complete.
direct examiner (Plaintiff this time) 2. Documents and Real Evidence – offer before
moved for continuance. Court reset two you rest your case.
weeks after. When witness died on the
day, direct exam will not be considered Incidentally, formal offer of evidence as a general
as part of the record because the cause rule must be oral. Formal offer in writing is the
of the incompleteness is the Plaintiff. “exception” but it should be orally done. If you are
going to offer few documents (ex. 10 only), do it, be
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ready! Ung ibang judges very strict after presenting up. Your honor, he does not want to take
last witness, will direct to do formal offer of the oath. Court: Please step down, you
evidence. Be ready that when you present your last cannot testify.
witness, make now the formal offer. It must be oral You can now make a proffer of proof.
(general rule), exception and “in writing” especially
the document that you are going to formally offer What do you do now? Your Honor, if Mr. X
consist of volumes. is allowed to testify, he would have
establish the following: (enumerate
Objection. 1..2..xx)

• How do you interpose objection? You interpose Supposed documentary evidence. Exhibit A,
objection in the course of the offer, not in the B, C (all the rest not admitted) Say: You put
course of authentication. Remember that it now in writing. Attach it and submit a
authentication consist of three (3) parts: (i) tender of excluded evidence.
marking; (ii) identification during the
pretrial/preliminary conference; (iii) What is the purpose? In case of appeal,
authentication proper in the course of trial. those evidence not admitted may be
appreciated by the appellate court
You should not make any objection especially if important/crucial.
there,that will be premature.
The time to object should be at the time of Weight and Sufficiency of Evidence
Premise: admissibility vs. credibility. It is
• When do you object in the course of the trial? two different thing
During testimonial evidence. This is what you
call oral objection which must be ruled upon • Admissibility of evidence – matter of law.
immediately by the court. Pag pinalampas mo • Weight and sufficiency/credibility – matter
yan during trial, there is a waiver. So right there of perception/judicial evaluation.
in there, you object. Weight – quantum of evidence defends on
the following kinds of evidence
What are the kinds of objection? 1. Overwhelming evidence – highest; any
1. Substantial Objection – violative of the best evidence which is beyond controversy;
evidence rule, parole evidence. conclusive; cannot be controverted
2. Formal Objection – ex. objection to leading 2. Proof beyond reasonable doubt –
question which goes to form only (applies in criminal cases) the quantum
3. Both formal and substantial of evidence which produces in an
unprejudiced mind a conviction of
Other objections: truth. You are convince that something
really happens. It may be doubtful but
Broad side objection – general objection to an unprejudiced mind, it produces
that you do not state anymore the grounds conviction. No absolute certainty,
because it is understood usually in the moral certainty or a mind that is
ground of irrelevancy and competency of impartial. No remorse of conscience. If
evidence. you doubt, you acquit.
3. Clear and convincing evidence –
Continuing objection – you objected to the quantum of evidence lower than proof
line of questioning but yet the proponent beyond reasonable doubt but higher
continues the same way of asking than preponderance of evidence (used
questions. SO instead of always standing up in (i) labor cases; (ii) establish forgery;
and making objection, you make a (iii) overturn disputable presumption;
manifestation of continuing objection so (iv) when the accused interposed
that it will be properly recorded. affirmative defenses)
4. Preponderance of evidence – (applies
Tender of excluded evidence in civil cases) more weighty/heavy than
the other.
Asked in the bar: What is proffer of
evidence? To what kind of evidence does Equiposed Doctrine – evidence for
this apply? To all kind whether testimonial. both parties are on equilibrium.

Ex. My next witness is Mr. X. After he took How do you determine which is
the witness stand, the adverse party stood heavier? Ans. Not only by number
2017: AUSL BarOps Remedial Law Team Page 95 of 109
because even if only one but it can
5. Substantial evidence – quantum of APPLICABILITY
evidence required only in only during the existence of 1. Husband and wife -
administrative cases; lower than the marriage continues even if the
preponderance marriage has been
6. Probable cause – quantum of evidence
consisting of several facts and GR: Marital Disqualification
circumstances known to the person to XPN:
arrive at the probability that the person 1. If husband and wife have no commonality of interest
charged is probably guilty thereof • Alvarez vs. Ramirez - being separated-in-
(hindi impossibility). Used in fact, there is no commonality of interest to
(i) preliminary investigation; and (ii) protect marital rights
preliminary examination (issuance of • People vs. Judge Castaneda - subject matter
warrant of arrest) is conjugal property, when the husband
falsify the signature of the wife, he is doing
7. Prima Facie evidence – quantum which it against the wife
becomes conclusive; not controverted 2. Great temptation to PERJURY

8. Iota of Evidence – cannot convict. Must BAR MATTER: based on Alvarez vs. Ramirez case (2005
be understood with circumstantial or 2006 BAR)
evidence – consist of several Q: Why does the MARITAL PRIVILEGED
facts/circumstances in order for it to COMMUNICATION RULE disqualification subsist even
convict, there must be more than one after the marriage has been dissolved?
circumstances; and it should be A: It is because the knowledge of the spouse, which may
brought together to lead a conclusion. have been gotten during the marriage being privileged,
remains to be protected. It is not anymore the marriage,
itself, which is to be protected, but rather the privileged
Disqualifications communication.
Rule 130, Section 20
Rule 130 - Bulk/meat/substance of evidence Unlike in MDR, after the marriage has been dissolved, the
Qualifications of a witness may be summarized in the following disqualification no longer exists.
(coded in “one who can perceive and perceiving, can make known
his perception”) Alvarez vs. Ramirez
-ability to observe A case between husband and wife, who were separated-
-ability to recall or remember what you have observed in-fact. The wife left the conjugal home and live with her
-ability to communicate sister. One day, the house of the wife’s sister got burned
Disqualifications and the suspect, and in fact the one who was charged,
1. The immature person - one who is mentally challenged was the husband. In the course of the proceeding, when
(mental sanity according to the Rule) he was charged for arson, the estranged wife was called
Children are deemed to be immature, but for purposes of the upon to testify. The adverse party objected to the
evidence, under the present dispensation, children, now, are testimony of the wife on the ground of MARITAL
deemed competent. They are PRESUMED competent, so that DISQUALIFICATION RULE and this was sustained until it
if a question on competency of a witness child is raised, the was brought up to the Supreme Court.
Court has the obligation to undertake COMPETENCY TEST.
COMPETENCY TEST must be undertaken in the presence of ISSUE: Is the Marital Disqualification Rule applicable in
the judge. This is in connection with the rule on the this instance?
examination of Child Witness. It was previously emphasized
the SEXUAL ABUSE SHIELD RULE and the section 6 of the HELD: No. The wife is no longer disqualified. She could
competency test testify. Since the marriage is not dissolve for only being
2. Section 22 - MARITAL DISQUALIFICATION RULE (BAR separated-in-fact, the Marital Disqualification Rule,
MATTER) according to the SC, will not apply in this case for the
WHENEVER this disqualification is raised, the confusion commonality of interest between the husband and the
lies on distinguishing this disqualification from MARITAL wife no longer holds.
disqualification. So at the outset, you must know the One of the purposes why the husband or wife is
distinction between MDR from the MPCR. To underscore disqualified to testify during the marriage is because of
the distinctions, emphasize on the word PRIVILEGED. the (1) common interest to protect their marital rights.
2017: AUSL BarOps Remedial Law Team Page 96 of 109
In this case, being separated-in-fact, there is no more A: No because IT IS NEVER INTENDED TO BE PRIVATE.
marital rights to be protected.

Another purpose of the disqualification of a spouse to PRIVILEGED COMMUNICATION

testify against or in favor of the other spouse is because 1. Husband and Wife - already discussed in the distinction
it is a (2) great temptation for PERJURY. However, in this between Marital Disqualification Rule and Marital
case, said ground will not hold because there is no Privileged Communication Rule.
temptation for perjury, since there is no more marital 2. Lawyer and Client
rights to be protected.
• Q: Who is being protected here? Client
People vs. Judge Castaneda • Q: Who is disqualified? Lawyer
The husband sold a parcel of land, which is a conjugal • Rationale: To protect the legal profession,
property, but the marital conformity, which should be because when a client goes to the office and
signed by his wife, was instead signed by him without confides matters that should not be divulged to
knowledge and consent of the wife. During the charge of the public.
falsification, the wife was called to take the witness’ • Tie this with the sub judice rule (also a
stand to testify. The adverse party objected. This is protective mantle)
violative of the marital disqualification rule. But Judge • The Privileged Communication is only on
Castaneda sustained that. MATTERS which is the subject of the lawyer-
Was there a marriage in this case? Yes, there was no client relationship.
intent to severe marital ties. Clearly, the MDR applies • Client went to a lawyer for consultation on
except if there is a civil case by one against the other. annulment of marriage. After narrating what
Here, it is a criminal case. It is neither a case filed by a happened with the marriage, the conversation
spouse against the other spouse. But using the doctrine somehow went to farming. Is that still covered
held in Alvarez vs. Ramirez, there is no longer a by privileged communication?
commonality of interest.
Considering that this is a conjugal property, when the A: It is not covered for not being a subject
husband falsify the signature of the wife, he is doing it matter for which the client came to the
against the wife. Even if there is no actual case against lawyer for.
the wife, the disqualification will no longer hold because
what the husband done is against the interest of the wife. • NOTE: Lawyer-Client relationship is not limited
And the possibility of perjury is quite nil here. to the lawyer alone but also to the STAFFS in
Q: There are multiple rape cases wherein the victim was the law office (ex: Secretary), unlike the
the daughter of a woman and the accused is the father of secretary in a doctor-client relationship
the daughter. Can the wife testify against the husband wherein (1) secretaries are mostly away with
who rape their daughter? the conversation, (2) the medical terms are not
A: Jurisprudence provides that a crime or offense of common knowledge to them.
committed against the daughter is, in effect, a crime
against the mother. Note that this is not limited to rape • If the communication between lawyer and
cases. client is for the purpose of attempting to
commit a crime, that is no longer a privileged
A communication being privileged means that it was never communication. (Paredes case)
intended to be known by others.
3. Doctor - Patient Relationship
Q: Supposed one night, a family had a dinner. The husband and • No prohibition of the privileged communication
wife were communicating with each other in the presence of the between doctor and patient IN CRIMINAL
children. Suppose, conjecturally, a case arose regarding husband CASES, only in CIVIL CASES.
and wife where one may be asked to testify about what they have
• If privileged communication can be invoked in
discussed during that dinner time, in the presence of the children.
criminal cases and doctor cannot testify, it may
Will the disqualification apply?
be a source of criminal attempts.
A: Yes. That is still privileged even if the children are around,
4. Priest/Minister - Penitent
because the children belong to the family. It is still considered
• Minister covers any kind of religion, there is
always a fiduciary relationship, a relationship of
trust and confidence between the minister and
Q: Supposed other people are present. Example: In a party, a wife,
• As long as the matters given by the penitent in
while having conversations with other wives, said that her
confidence is in relation to religious matters.
husband is a womanizer. Is that considered a privileged
5. Public Officer

2017: AUSL BarOps Remedial Law Team Page 97 of 109

• The relationship to which the privileged is • If the case is against the executor or the
attached is on custody of public documents or administrator of the estate, it would not be a
conversations/communications which are claim against the estate.
• Executive privilege simply means that the It is conflicting as to what have been studied
President of the Philippines cannot be called regarding Rule 86 in relation to Rule 87.
into a congressional hearing. It is absolute and
extends to the alter-egos of the President. What are claimable against the estate? Sec. 5 of
In the case of Almonte vs. Vasquez, Gen. Rule 86 limits the claims against the estate to
Almonte, who became the head of EIIB, was the following: (1) Judgment for money, (2)
asked to divulge certain matters which were of funeral expenses, (3) expenses for the last
national interest. But he said he cannot divulge illness, and (4) money claims. However, Sec. 1 of
said matters because it borders on national Rule 87 states that other claims must be filed
security. From the doctrine held in this case, against the executor or administrator of the
national security, diplomatic matters, and those estate.
which will involve national safety and security
are now privileged. But if you go through Sec. 23 of Rule 130, the 2nd
Until Executive Order (EO) 464, which is the and 3rd requirements appear to be conflicting.
subject matter of the case of Senate of the Why? It is because the 2nd requirement said the
Philippines vs. Ermita, assailing to impune, “claim against the executor or administrator of
declare, to cause the declaration of EO 464 as the estate” and the 3rd requirement said it must
unconstitutional. EO 464 states that the be a “claim against the estate”.
following officers cannot testify in a
congressional hearings without the consent of How to construe the contradicting
the President of the Philippines, i.e. Executive requirements? The word “claim against the
Department heads and General and Flag estate” must be correctly construed not under
Officers in the Armed Forces of the Philippines, Rule 86. In other words, the liability is not
and those under them, which may be personal to the executor or administrator but,
determined by the flag officers, among others. rather, it is chargeable to the estate. Therefore,
The Supreme Court held that it is a balancing you file it against the executor or administrator
matter regarding the constitutional right to of the estate.
information as against national security,
national safety, of national interest, which The rationale behind the Dead Man’s Statute:
should be privileged. There must be a balancing It is to avoid the temptation of perjury because
factor. The Supreme Court declared certain a dead man cannot rebut assertions of others.
parts of the said EO unconstitutional because it Accordingly, when nature or death closes the
encroaches upon the power of Congress to lips of one party, the law must close the lips of
conduct investigation IN AID OF LEGISLATION. the other party as well, so the playing field is
6. Sy Hun Liong vs. Rivera (2015) - The privileged leveled.
communication extends to employer-employee In the case of Sunga Chan vs. Chan, the plaintiff
relationship if the communication is in the performance filed a case against the executor or
of one’s duty by the employee to the employer or by the administrator. But the executor or
employer to the employee. administrator, in answering the complaint, set
up a counterclaim. When the plaintiff took the
7. Dead Man’s Statute witness’s stand, the executor or administrator
• 4 requirements in order for the Dead Man’s invoke the Dead Man’s Statute. The Supreme
Statute to apply (Sec. 23 in Rule 130) Court said that the Deadman’s Statute will no
longer apply because it is the executor now, as
i. The person disqualified to testify: far as the counterclaim is concerned, is the
Plaintiff or assignor of Plaintiff; plaintiff. So, it removes from the mantle of the
ii. Action is against whom: Against the Deadman’s Statute. (1st requirement missing)
executor or administrator of the
estate; It is clarified further in the case of E. Razon vs.
iii. Subject-matter of the action: On claims IAC. In this case, the father of Vicente Chuidian
against the estate; and owns certain shares of stocks in E. Razon and
iv. Testimony refers to: Matters Vicente Chuidian is the administrator of the
communicated to the other before the estate of his father. E. Razon who filed a claim.
death of the party [or which happened Accordingly, Vicente Chuidian was sought to be
ante lite motam (before the disqualified on the ground of the testimony
occurrence of death of the deceased)] (allegedly based on the Dead Man’s Statute).
The Supreme Court said that the Dead Man’s
2017: AUSL BarOps Remedial Law Team Page 98 of 109
Statute will no longer apply here because it was - If there is a vice of consent [force,
Vicente Chuidian, representing the estate, intimidation (either physical or psychological),
which has the claim against E. Razon. So the undue pressure and influence] established, the
application of the requirements will not apply, extrajudicial confession no longer holds, hence,

8. Parental - Filial Privilege b. Needs and independent and competent counsel

• This is actually not a disqualification because the if confession was made during a custodial
formulation of the Rule says, the child or the interrogation.
parent CANNOT BE COMPELLED TO TESTIFY If there is a confession, is it within the time
against the other. frame of custodial interrogation or outside it?
• The child can testify against the parent or the Because if it is within the time frame of custodial
parent can testify against the child. But if they interrogation, it is ABSOLUTE that the
don’t want to, they cannot be compelled. confessant needs and independent and
competent counsel.
ADMISSIONS AND CONFESSIONS When does the time frame begin? When he is
Admissions were partly discussed in Rule 129, in relation to taken among the many, then, custodial
Judicial Admission. What is referred in Sec. 26 onwards are interrogation starts, not when a person
EXTRAJUDICIAL ADMISSION. suspected nor when he is in a line-up. And at
What is the basic distinction between admission and confession? that point in time, he can already invoke his
ADMISSION CONFESSION right to counsel. If the confession, within the
time frame of custodial interrogation, was
- It is not only a statement
without the aid of counsel, which is
of a fact but you even
- A statement or move forward than simply
c. Must be IN WRITING.
confirmation about a fact stating so. In so stating,
- An admission is not you acknowledge your
If all these things are present, the confession is
necessarily a confession. guilt.
- In effect, a confession is
NOTE: One thing is the admissibility and another is
an admission.
the WEIGHT or CREDIBILITY of the confession.
It may either be a (1) judicial or (2) extrajudicial.
In examining the Rule on Admissions, you read together Sections
1. Judicial Confession - the plea of guilty in criminal
26, 28 and 34 of Rule 130 to have a full appreciation and
understand on Rule on Admission. The premise on the Rule on
When an accused enters a plea of guilty in a capital
Admission is on Sec. 26, which said that the act, declaration, or
offense, the judge is required to do three (3) things:
omission of a party is admissible only as to the actor, declarant, or
a. Undertake searching questions to determine
omitter and to no one else. (RES INTER ALIOS ACTA Rule). This is
the voluntariness and comprehension of his
because human nature tells us that we never accept our fault. We
entering the plea of guilty to a capital offense;
always pass on the blame to others. Even if people were caught,
b. Direct the prosecution to present evidence to
still they try to evade liability or responsibility.
still establish the guilt of the accused beyond
RES INTER ALIOS ACTA Rule is found in Sec. 28, which provides
reasonable doubt; and
that the rights of a party cannot be prejudiced by the act,
c. Ask the accused whether he is willing to present
declaration, or omission of another.
countervailing evidence.
These requisites are important when death penalty is
1. When there is conspiracy, which must be established by
still in effect.
acts other than the acts involved in the res inter alios acta
What are the requirements when an accused enters a
rule (not by the conspiracy itself).
plea of guilty to a lesser offense (less than the capital
2. Co-partner or Agent
3. Privies - There must be privity in relationship, privity in
a. Asking the court whether he understands what
he is entering into (Pp vs. Mingote); and
4. Admission by Silence
b. Asking the prosecution to present evidence not
for the purpose of establishing the guilt but for
4.1 When the person is under advisement (when he has
the purpose of determining what penalty to
a lawyer who tells him not to say anything).
4.2 When he does not understand what is going on; i.e.,
language barrier
2. Extrajudicial Confessions
EFFECT of the XPN to XPN: Said admission by Silence is
NOT ADMISSIBLE as to him under legal advisement

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DOCTRINE OF INTERLOCKING CONFESSIONS the MTC or MCTC can exercise delegated jurisdiction over land
registration or cadastral cases? If the amount or the assessed
This doctrine talks about several confessants. When there are value of the property does not exceed one hundred thousand
more than one who executed a confession and the allegations in (Php100,000) or it is uncontested. Which court has jurisdiction?
one are attributable to the other without any collusion between Therefore, the MTC. The one hundred thousand (Php100,000) is
them, the admission in one confession is admissible as to the based either on the Tax Declaration or the Affidavit of the owner
others. or the claimant. In case of adverse decision in land registration
delegated by the MTC, what is the remedy? Appeal. Where would
(END OF TRANSCRIPTION) you appeal? CA. [So how would you argue why appeal to the CA is
Jurisdiction the proper remedy] Because the MTC in entertaining the land
registration and cadastral, is assuming the jurisdiction of the RTC.
So therefore, the appeal would be under Rule 41. That is by way
Real Action - action involving title to, possession, or interest over of Notice of Appeal within fifteen days. So fifteen days from
a real property that is 20 based on assessed value or 50 based on, when? [Titingnan nyo baka may date dun.] There are two
20,000 outside of Metro Manila, 50,000 within Metro Manila, if reckoning period if your going to compute the fifteen day period.
you exceed then you go with the RTC, if you don’t exceed then you (1) the notice of the decision; or (2) the notice of the order denying
go with the MTC or MCTC as the case may be. the motion for reconsideration. Especially if you are requested or
asked to compute. And then, try to observe the Fresh Period to
Personal Claims - money 300 outside, 400 as far as within Metro Appeal Rule. So even though you filed a MR on the fifteenth day
Manila. Personal, real, and probate proceedings. and the same has been denied; therefore, in case of denial, still
you have a fresh period of fifteen days.
Except on 2015, the question was Totality Sum of Money. Under
Section. 5, 4th par., Rule 2 on Joinder of Causes of Action. Original Jurisdiction

Why is there an importance to know whether the action or the Original jurisdiction is the power of the court to entertain actual
specific place mentioned in the problem. controversy brought at the first instance. All courts have original
jurisdiction. [Di lang kasama yung Sharia kasi pinaexclude natin
BAR 2006. Estate of a decedent worth Php 200,000.00 Which yun. Ang SC meron yan.] Any disposition of these original actions
court has jurisdiction? Where is the Venue? Pampanga. is in the form of a judgment or decision. If it is a judgment,
therefore, that is appealable. [So if you are asked what is your
Answer 1. Because it is outside of Metro Manila and it does not basis? Kasi sa lahat ng sasagutin natin dun sa problem dapat
exceed Php 300,000, MTC has jurisdiction. meron kang basehan. Bar Examination again as I have been telling
before to my students, is a matter of impression. You need to
Answer 2. Rule 73. (1) the actual residence of the decedent at the impress the examiner that the one writing the answer is already
time of the death; or, (2) if he is outside of the Philippines, where fit to become a member of the Bar. Kaya iingatan ninyo ang
his estate may be found. pagsusulat ninyo. Yung presentation. Yung margin. Yung sulat sa
babae wala tayong problema. Dun sa lalaki may problema. Minsan
There is an amendment in 2016. If we talk of sum of money, all caps pa yan. Hindi pwede po yun. You should know the
regularly that is 300,000 if that is outside of Metro Manila; paragraphing. Dapat malinis. Even though, your answer is
400,000, if it is within Metro Manila. If you exceed, therefore that incorrect. If you presented your answer in such a way that would
is RTC; if you don’t exceed, therefore that is MTC. sway the mind of the examiner, then you will be given a point. Di
ho ako nagbibiro. So again, it is a matter of impression. ]
There is an amendment as far as small claims. Ordinarily, on 2008,
that is only to Php 100,000. Now, it was raised to Php 200,000. Rules of Court
Payment of money or Reinvestment of money for the amount Php
200,000; that is, regardless, whether it is within or without Metro I will not discuss the Rules by according to the Rules. I cannot do
Manila. So that is MTC or MCTC as the case may be. that because Bar Examination is a mixture of provisions.

The Revised Rules on Small Claims, 2016. Consider also the Venue. Rule 1. Distinctions of three actions. Criminal, Civil & Special
If the defendant is engaged in financial business or lending Proceedings.
business, and he has a branch in another place where the
defendant is residing, then that is the venue. That may be the Civil action is an action or a suit filed before the court for the
venue of the action. For example, he is residing in Bacolod, and enforcement and protection of a right, or prevention or redress of
a wrong. Whereas, criminal proceedings is a proceeding whereby
the plaintiff has a branch office in Bacolod, you can file in Bacolod,
even if your principal office is in Manila. the State prosecutes a person for acts or omission in violation of
penal laws. Special proceedings is a proceeding in order to
Delegated Jurisdiction establish a particular fact, status or a right. [Lahat po ng
proceedings that need to iestablish a particular fact, status or a
In Land Registration or Cadastral cases, originally it is within the right is a special proceeding.]
original jurisdiction of the RTC. But the same may be delegated by
the SC pursuant to its power. Now, what are the instances wherein
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BAR 2008. Is a petition for presumptive death a special proceeding. Pero, ang naniningil dalawa. Hindi ka nabayad ng upa. Para
[1 point. Eh 1 point lang pala yan eh. Bakit babanggitin mo pa? perwisyohin ka ng mayari. Nagfile ng sum of money. Nagfile ng
Lahat ng point sa BAR importante. If your focus now is to get a ejectment. Bawal po yun. Isa lang dapat. Because there is only one
grade of 90 in Remedial Law; one thing, I can tell you, you will be cause of action splitting to two. That is not allowed. Now my
a lawyer next year. Would that be impossible? The answer is No. question is? Can there be a motu proprio dismissal of an action
It is up to you. So your mind setting now is not only to pass or get based on splitting of causes of action. Diba? That is a possible
a grade of seventy five. If you fall short, then you fail. Wag mo na question. Either direct question or in the form of a problem.
ipagyayabang sa katabi mo na magaling ka, 90 ka, hindi, within Pwede ba? The answer is Yes. If that is based on litis pendencia, or
yourself. And, that is my focus 90. When I was reviewing like you barred by prior judgment, anu ang magiging basis mo sa
before, I had the difficulty of papano ba to ang hirap intindihin, pagdiscuss ng sagot mo? You have Sec. 1 of Rule 9. Pagtinanong
and then your Rules of Court, hindi ka pa nakakatatlong Rules, ang motu proprio dismissal. There are four grounds available
tulog ka na. Ang gagawin mo tatayo ka, magyoyosi ka, ibibitin mo there. (1) Lack of jurisdiction over the subject matter of the action.
yung ulo mo sa kama. Magyoyosi ka. Iinom ka. Manunuod ka. (2) The other one is litis pendencia, (3) barred by prior judgment.
Makakatulog ka. Lalo na sa Modes of Discoveries. Tama, mali? Lalo (4) And, therefore, the other one is prescription.
na dun sa Special Proceedings. Paglumagpas na ng 77; except 86
and 87, tulog ka na. Diba? Kasi boring yun. Now you have to know Pagtinanong sa Inyo yun. Wag nyo ilalagay ang res judicata.
it by heart. And, you should know how to correlate one provision Because there are two aspects of res judicata: (1) One is barred by
to the other. Otherwise, you will get lost.] prior judgment. (2) The other one is conclusiveness of judgment.
What is stated there is only barred by prior judgment; never the
Duon sa distinctions. May parties in civil actions. There are two conclusiveness. So If you answer the question, yun and magiging
parties involved. Plaintiff, defendant. And then, in criminal, it basehan mo. Papano mangyayari yun? Problem. Nagdalawang
depends. If the case is already filed before the court, we have the kaso, pending yung isa, nag file uli inisplit nya. Ano ang inyong
plaintiff, or the State, or the accused. If it is for purposes of remedyo? O ang tanong ay, the Court immediately dismissed the
preliminary investigation, you have two parties there. One is the case outright. Is the dismissal of the court valid? Diba? Can there
complainant. The other one is the respondent. Now, in special be motu proprio dismissal? The answer is Yes. Because litis
proceedings, it is as a general rule, non-adversarial; except, when pendencia and barred by prior judgment is a ground for motu
there is an oppositor to your petition. proprio dismissal under Sec. 1 of Rule 9. Tingnan nyo po yun.
Markahan nyo yun. So that is, splitting of causes of action.
So, how do you commence a civil action? In three ways, (1) one is
by complaint. (2) The other one is by way of a petition. (3) The Joinder of Causes of Action.
other one is by way of a verified statement of claims, in case of
small claims. Criminal, how do you commence? You can read it Actually, tinanong yung last paragraph; yung Totality Rule. If you
under Sec. 1 of Rule 110. By way of complaint, affidavit complaint, joined a cause of action which means you are complying with the
if there is a necessity of preliminary investigation; or criminal provisions under Sec. 5 of Rule 2. It must comply with the Rules on
complaint directly filed with the court the MTC or MCTC; and then joinder of parties. Yung second is important. It must not include
we have the criminal information. In special proceedings, that is or involve special civil actions or actions governed by special rules.
by way of petition. So pagtiningnan mo dun sa problem. Isa dun ay special civil action.
Then there can be no joinder of causes of action. A sum of money
Now in civil. What is the basis of civil action? That is based on a cannot be joined with foreclosure; because that is a special civil
cause of action. In criminal, the acts or omission in violation of action. Tinanong na po yung 2nd paragraph sa BAR exam. Nilagyan
penal laws. In special proceeding, the particular fact, status or ka ng set of causes of action; jinojoin in one complaint; tama ba
right that is sought to be established. [Kasi may examiner na yun? How would you answer the question? You are going to
nagbibigay ng tanong, ayaw ipasagot yung tanong. Last year, diba discuss all the requisites. Hindi mo na kailangan discuss yun. I
may tanong. Anu nga bang tanong dyan. Jason clause. Hindi mo discuss mo lang yung 2nd paragraph. Under the 2nd paragraph of
makikita yun, unless yung reviewer binangit sa inyo. What is Sec. 5 of Rule 2, it is expressly stated that it must not involve
Defasage in civil law. Mahirap tingnan. Diba? Mahirap intindihin. special civil actions or actions governed by special rules. Since the
Saan mo kukunin, unless nakita mo yung nabasa mo yun sa isang foreclosure proceedings is a special civil action that is prohibited;
book. Diba? Pasensya na kayo, wala na akong boses. Kasi nagklase therefore, that is, not allowed. So may basis ka na. Sinagot mo ng
ako kanina. Mula 10 hanggang 3. So wala akong boses. Pasensya diretso. Wala ka nang problema. Maigsi.
na kayo.]
Do not answer the question more than one page.
Rule 2. [Dalawa ang titingnan nyo dyan. One is splitting causes of
action. One cause of action divided into several action that is what What is the distinction of lack of cause of action and failure to
we call splitting and that is not allowed. What are the effects of state a cause of action? There are two different things.
this splitting of causes of action? It may result to litis pendencia.
When a case was filed either simultaneously or successively, when If we talk of failure to state a cause of action that is a ground for a
one case is still pending; therefore, that is litis pendencia right? Or, motion to dismiss under Rule 16., Section 1.
when one of the cases is already decided with finality. That is
barred by prior judgment. Diba? So, abangan nyo po yun. Paano If it is based on lack of cause of action, that is a ground for
tinatanong yun sa BAR? In the form of a problem. Take for demurrer to evidence under Rule 33, Section 1.
example you are, naguupa ka ng bahay. Meron, ikaw ay umuupa.
2017: AUSL BarOps Remedial Law Team Page 101 of 109
Lack of cause of action is different from failure to state a cause of costs, attorney’s fees and cost of interest. So that provision must
action. also be correlated with the provision of BP 129, as amended.

If we talk of failure to state a cause of action, therefore, the RULE 3.

allegations in the complaint or in the pleading, no cause of action
or insufficient. Parties.

If the motion to dismiss is denied based on failure to state a cause Real parties in interest. Who are real parties in interest? In order
of action, what is your remedy? In case of denial of the motion to to have a complete determination of the case, then action must
dismiss, what would be your remedy? File responsive pleading. be prosecuted or defended in the name of the real parties in
Based not only on the provisions of Rule 11 but based also on interest.
existing jurisprudence. If you will encounter the same again in the
form of a problem. File the responsive pleading or the answer Make sure the case is filed by or against the real parties in interest.
within the balance in which the defendant is entitled to but in no If he is not real parties in interest, what would be your remedy?
case less than five days. Raise the ground of the motion to dismiss Motion to dismiss based on failure to state a cause of action. So
as an affirmative defense. Proceed with the trial. In case of Sec.2, Rule 2 have correlation with Rule 16, Sec. 1. Failure to state
adverse decision, you appeal and assign the denial as one of the a cause of action.
errors unless the denial is tainted with grave abuse of discretion
amounting to lack or in excess of jurisdiction, then petition for Alternative defendants. If the plaintiff is not sure as to who among
certiorari is a remedy under Rule 65. With that kind of framing of the defendants will be liable, he may implead all the defendants.
the answer, then out of five or out of three, you will get three. Do A as against B, C, D, and E.
not settle for less. Make sure your answer will impress the
examiner. The one who will read your answer must be satisfied Sec. 12. Class Suit. The most important element of class suit is the
not you always. first paragraph. That the subject of the case is of common or
general interest.
If the demurrer to evidence is denied, therefore, your remedy is
defendant may present evidence. If based on failure to state a Yung daanan sa may Laguna sinarado. Nagkaroon ng excavation.
cause of action, the motion to dismiss is granted, what is your Walang makanaan ngayon. So hindi ka makakadaan pababa ng
remedy on the part of the plaintiff? Failure to state a cause of Maynila. Yung mag Barangay dun hindi makadaan. So what they
action, that is without prejudice. Can you amend? Two remedies. did is to file an action before the court. Then the barangays, yung
(1) Refile Sec. 5, Rule 16 except FHI which will bar the refiling of adjoining barangays nagfile din, nag intervene. Is the class suit
the action; all other grounds is without prejudice; (2) Amend in proper? Yes, because the subject matter of the action is common
order to state a cause of action. You can amend even if there is an of all the parties who are numerous and impracticable to bring
order of dismissal provided that is not yet final and executory. If it them all to court. What is there common general interest? Their
is after, therefore, you cannot amend anymore. Why? Because the right to passage on the highway is impaired. In class suit, the
case has already been dismissed with finality. elements will not be asked. You should know the elements to be
applied in the problem. That the subject involves common or
So amendment is a remedy before the finality of the order of general interest among many parties who are impracticable to
dismissal. bring them all before the court and there is a sufficient number in
representation of the others who will protect the benefits or rights
So if you will be asked in the form of a problem. Look closely of the other parties involved.
whether final or not. If not yet final, two answer. (1) To refile. (2)
Amendment. Why? Because a motion to dismiss is not a Class suit is different from Derivative suit.
responsive pleading. Order of dismissal not yet final, you can
amend as a matter of right under Sec. 1, Rule 10. A class suit is a form of a representative party. Executor,
administrator, attorney’s in fact and that is also representative.
For purposes of making a distinction, if the demurrer to evidence
is granted, therefore, that is a final order. Therefore, appealable. A derivative suit is also a representative party. Minority
Rule 33 has a connection with Section 1 of Rule 41. Since it is a stockholders filing an action for and on behalf of the corporation
final order as provided for under Section 1 of Rule 41, it is due to their inaction. That is derivative. BAR 2005.
appealable because it is expressly stated there. Judgments, final
orders are all appealable. So you have Rule 33 and Sec 1, Rule 4, What is a citizen’s suit? Rules on Environmental Cases. Can it be
therefore, that is quite convincing. You cannot just say this and filed by a foreigner? No, because by express definition given by
that without any basis at all. the Rules; It is a suit filed by any Filipino citizen for and on behalf
of the others generations yet unborn or minor for the protection
If one of the causes of action falls under the jurisdiction of the RTC, and enforcement of environmental laws, rules and regulations.
then that is allowed. If the joint causes of action is to be joined,
consist of sum of money. So 100, 100, 100, etc. The aggregate Citizen’s suit. Derivative suit. Distinguished. Sec. 3, 12. Death of a
amount will be the test of jurisdiction. If that is a sum of money party in a civil action. Sec. 16 has a relation to Sec. 20 and Sec. 1
that is in relation to the provision of BP 129 exclusive of damages, of Rule 87. In case of death of a party, the counsel within thirty
days must inform the court and shall effect substitution of heirs.
2017: AUSL BarOps Remedial Law Team Page 102 of 109
Because the action survives the death of the party. And, one of Mixed. No option.
which is Sec. 20 of Rule 3. Action that survives the death, action
for the recovery of sum of money arising from contract, express How would you determine whether the action placed in the
or implied, after the death of a party shall continue until its final question is real, personal or mixed? What is mixed? Both, where
judgment but the enforcement shall be made on the estate of the the property is located.
decedent under Rule 86. So all actions for recovery for sum of
money arising from contract, express or implied, if there is death, If you will be the counsel for the defendant, and there is improper
there is substitution, the action will survive. There will be venue, what is your remedy? Motion to dismiss based on venue is
substitution of heirs. How would you claim against the estate? So improperly laid. Sec. 1, Rule 16.
you go back to the provision of Rule 86. By simply presenting the
final entry of judgment before the clerk of court. Then the Clerk of Then what will be your remedy if the case is dismissed? Refile, Sec.
Court will receive it. Copy furnished the executor, administrator 5. So lahat nang sinabi dun makikita mo except FH&I.If you look at
who will be given a chance to file his comment or answer. And, FH&I, nandyan ang barred by prior judgment, prescription, paid,
then it will be submitted to the court for disposition. So if the court waived or abandoned otherwise extinguish the claim or statute of
say granted, the order granting the same is again a final order; fraud, unenforceable. Kasama po dyan ang litis pendencia.
therefore, appealable. Sec. 9 or Sec. 13. So Sec. 20 has a relation
to Rule 86. On how to present your claim. What is the doctrine of exclusivity of venue. Jurisprudence 2015.
Parang unlawful detainer yung nandun. The doctrine of exclusivity
What are the actions that survives the death? of venue will only apply if there is a valid binding agreement.The
agreement was executed prior to the commencement of the
(1)Sec. 20 of Rule 3. In addition to that, Sec. 1 of Rule 87. Recovery action. And, there must be an express provision in the contract.
of real or personal properties; enforcement of a lien; damages But if there is a question as to the contract itself. Its existence, the
arising from the injury, etc. Funeral expenses. So kung genuineness. If for example the signature there was forged,
nakaisolate lang yan, papaano mo sila pagdidikitin? Therefore, finilelan ka ng kaso, then sa venue na nakalagay dun, can you
there will be continuity of actions. enforce the terms of the agreement as to the exclusive venue?
(2) Yun yung tanong dun eh. NO. Because the doctrine will only apply
if there is a valid binding agreement. Yung isang party sa kasong
What is the Constitutional Basis of Indigent Sec. 21? Sec. 11 of Art. yun, nasa Singapore, nagkaroon ng pirma, so there is a forgery in
III. Free access to court. the contract, finile ng plaintiff duon sa place nakalagay sa contract.
Nagfile ngayon ng motion to dismiss based on improper venue.
BAR 1991. What is the writ of amparo?(1 point) What is the hanggang umakyat duon sa Supreme Court. SC held that there
Constitutional Basis? (2 points) should be a valid agreement.

What is the Constitutional Basis of Writ of Kalikasan? Is there a motu proprio dismissal based on improper venue? NO
because it is not one of those mentioned Sec. 1, Rule 9. Exception:
Marami yan. One is Sec. 5, par. 5 of Art. 8. The power to (1) Summary (2) Small Claims. Considering the case falls under the
promulgate rules. Rules on Summary Proceedings, there is such a thing as motu
proprio dismissal. Sec. 4, Rules on Summary Proceedings. Sec. 11,
Habeas corpus is a form of amparo. That is what we call amparo Rules on Small Claims. After the court determines that the case
libertad. falls under summary or small claims and upon examination of the
allegations on the complaint and the evidence attached
Pwede syang lumabas provided meron syang relation sa Syllabus. therewith, the court may immediately dismiss the case based on
Umiksi ng 25 pages yung Syllabus. any of the grounds for the dismissal of the action under the Rules.
So therefore that is motu proprio. In addition to Sec. 1, Rule 9,
RULE 4. VENUE. include (1) summary, and (2) small claims. It will be asked by
problem. Hypothetical question.
Venue place where the case shall be instituted, heard and tried.
Venue is only for purposes of convenience. If the question is venue Defendant who is temporarily out of the Philippines. Where is the
except special proceedings and criminal case. If civil, Real, venue?Where the property is located.
personal, mixed. Not in personam, not in rem, not quasi in rem.
Rule 5. Wala yan.
Real action. Where the property is located or where any portion
thereof is situated. All actions involving title to, possession, or RULE 6. PLEADINGS.
interest over those enumerated under Art. 415 of the New Civil
Code. Because there are properties bounded by two cities or Sec 12 or Sec. 13. Bringing in of new parties. If the court will
municipalities. determine that there will be no complete relief that will be
granted as far as the cross-claim or counterclaim is concerned. The
If it is personal. That is involving privity of contract. Involving court may allow the bringing in of new parties.
personal properties or damages. Residence of plaintiff or
defendant at the option of the plaintiff. Pleadings. Distinction between permissive and compulsory.

2017: AUSL BarOps Remedial Law Team Page 103 of 109

Distinguish the principle of recoupment (compulsory) and the pleadings. Because the answer that you have filed does not tender
principle of set-off (permissive). an issue. Therefore, the remedy there is judgment on the
Permissive is initiatory. Compulsory is responsive. Since it is
initiatory, therefore, it must be verified. In compulsory as a Request for written admission. If you failed to have it under oath,
general rule, need not be verified; except: (1) Summary the material document there is deemed (the genuineness and due
proceedings, and (2) Small Claims Case. execution) impliedly admitted. The answer does not tender an
issue. Therefore, the remedy on the part of the plaintiff is motion
Bakit kailangan verified ang compulsory? By express provisions of for judgment on the pleadings.
the Rules. All pleadings must be verified. So considering
permissive is initiatory, it must contain a certification against What else are the answers that should be verified? What if you did
forum shopping. Compulsory, need not. not answer the interrogatories to parties? Is there a declaration of
default? Can you be required to file your answer? YES Sec. 5, Rule
In permissive, being initiatory, it must be answered; otherwise, 29. You may be declared or there will be a judgment by default.
there will be declaration of default. In compulsory, as a general Modes of Discoveries, there is judgment by default if you failed to
rule, need not be answered; except, summary proceedings. file an answer under Rule 25. So Rule 25 in relation to Sec. 5, Rule
Payment of docket fees. In permissive, required, being initiatory.
Compulsory, payment of docket fees suspended. Per resolution of Response under the Rules on Small Claims.
the Supreme Court September 21, 2004. Suspended ang payment
ng docket fees sa compulsory counterclaim. Response under Petition for Writ of Amparo, Data, Writ of
Kalikasan and Continuing Madamus.
If you fail to raise the permissive, then it is not barred. Your
remedy is to file a separate claim or action. Compulsory not raised All pleadings under the Rules on Environmental Cases must be
barred. verified. So with that if the question goes like this. What are the
pleadings that should be verified? All initiatory. Plus, all responsive
In permissive, it requires the presence of a third person of whom that I have mentioned. In the scale of 1 to 5; you get 5. Again, you
the court will acquire jurisdiction. Compulsory need not. have to impress.

What are the pleadings that should be verified? BAR twice. All What are the initiatory pleadings? Original Complaint. Permissive.
initiatory pleadings verified. Compulsory. Cross-claim. Third-Party Complaint. Fourth-Party
Complaint. Complaint-In-Intervention. Then we have verified
Responsive pleading does it require verification? As a general rule, Statement of Claims. Lahat nang complaint and petitions under
No; except, when the law or the rules otherwise requires. the Rules on Special Civil Actions. Lahat nang petitions under the
Rules on Special Proceedings. Ilagay mo na rin yung dalawang
What are the responsive pleadings that should be verified or under special civil actions writ of kalikasan and continuing mandamus.
oath under the Rules? An answer to the allegation of actionable With all of that you can have forty all in all. That is quite impressive
document under Sec. 8, Rule 8. It should be verified; except (1) if already. Ubos ang oras mo.
the person or party filing the answer is not a party to the
actionable document; [It will be given in the form of a problem; If Yung cross-claim hindi itatanong.
not a party to the contract, then need not be verified; If a party,
then it should be verified (2) failure or refusal to comply with the Distinction of counterclaim and cross-claim. (Malabo yun hindi
order of production. masyadong napapansin yun.)

What is an actionable document? An actionable document is a PARTS OF THE PLEADINGS. Babantayan ninyo yung Verification.
document which is the basis of the plaintiff’s filing of the action or Yung Forum Shopping. Sec. 5, Rule 7. Verification. This is the
the claim. Example: promissory note, deed of sale, chattel written sworn attestation of the parties that he has read the
mortgage, etc. If the complaint is based on an actionable allegation or allegations in the pleading that it is true and correct
document; therefore, it must be under oath. If there is an answer based on his personal knowledge or authentic records. Diniscuss
to the allegation of usury; that must be under oath. All answers na natin lahat ng pleadings na may verification. Right?
under the Rules on Summary Proceedings as provided for under
Sec. 3. Answer to the original complaint. Answer to the Now, what is the effect of failure to verify? It may be considered
Compulsory. Answer to the Cross. Under the Rules on Summary. by the court as an unsigned pleading or the court may allow
Answer to written interrogatories under Rule 25 must be under amendment or verification of the pleading except those pleadings
oath. Answer to written request for admission under Rule 26 must filed before the appellate courts. You cannot do that.
be under oath.
Verification is only formal requirement. It is not jurisdictional.
How is interrogatories to parties given under Rule 25. Purpose. To
illicit material relevant facts. If you failed to have it under oath, Sec. 5. Certification or Acts of Forum Shopping. One act of forum
deemed admitted are all the facts stated therein. Therefore, if it is shopping. One certification against forum shopping. But the title
deemed admitted. You may file a motion for judgment on the heading is certification. It the middle forum shopping is placed.
2017: AUSL BarOps Remedial Law Team Page 104 of 109
Let’s define forum shopping or acts of forum shopping. Acts of Is a Jurat a part of a pleading? You know what is a Jurat. Diba sa
forum shopping are different from the certification against forum Affidavit may nakalagay.
shopping. One is an act the other one is an affidavit. The acts are
prohibited. The certification is a condition precedent. And all Is a Jurat a part of a pleading? As a general rule, a Jurat is not a
initiatory pleadings. All initiatory pleadings have certification part of a pleading unless the pleading should be verified or shall
against forum shopping. contain an affidavit of certification against forum shopping then it
becomes forms part of the pleading. Because you cannot have an
An act of forum shopping is an act of malpractice committed by a affidavit without a Jurat.
party to the action by filing multiple suits before different courts
either successively or simultaneously involving the same parties, Is a Bill of Particulars a part of a pleading? Sec. 6, Rule 12. A Bill of
same cause of action, asking for the same relief and for the Particulars is or forms part of a pleading. So if a Bill of Particulars
purpose of securing a favorable judgment. has been filed, it forms part of the pleading. Because it clarifies
the ambiguities in the pleading.
If what is asked is what are the requisites of forum shopping, all
you have to do is to dissect the definition. You can answer two Is a Bill of Particulars a part of a complaint or information? Motion
questions at the same time. So it is an act of malpractice for Bill of Particulars is different from Bill of Particulars. A motion
committed by the parties filing multiple suits before different is an application. The other one is a more definite statement. So
courts either simultaneously or successively. Take note, it must anu yung part ng pleading, yung more definite statement.
involve same parties, same cause of action, same relief. And, the
purpose is merely to secure a favorable judgment. RULE 8. Actionable Document.

Yung iba nagkakamali, same parties, same issues, same subject RULE 9. Objections or defenses not raised, then it is deemed
matter. Hindi po yun, cause of action nakalagay dun. waived except the four. So the ground there provided for under
Sec. 1, Rule 9 are the exception to the Omnibus Motion Rule. Sec.
2015 case. Reconveyance. Then nagkaroon ng decision umabot sa 8, Rule 15 that is in correlation with Sec. 1, Rule 9.
Supreme Court. Then after the SC, judgment become final and
executory. Lahat ng remedies inavail. Nagkaroon ngayon ng What is an Omnibus Motion Rule? It is a Rule which provides that
execution. Nagfile ng motion for execution. Ngayon and execution motion attacking a pleading, judgment, orders, or proceeding
naman ang sinabject yung petition for certiorari before the higher must contain all available objections at the time of its filing;
courts. Tanong, meron bang forum shopping dun. Wala. Bakit? otherwise, it is deemed waived except Sec.1, Rule 9.
Not the same cause of action.
Lack of Jurisdiction.
Ways of committing forum shopping. Litis pendencia.

(1) Barred by prior judgment.

Can there be a motu proprio dismissal of the action? Yes, Sec. 1,
Rule 9. Litis pendencia and barred by prior judgment. If dismissed And, prescription.
motu proprio, your remedy is now appeal. Bakit? That is with
prejudice. FHI. Sec. 5, Rule 16. So yung Sec. 1, Rule 9 ilipat nyo na yun sa Sec. 8, Rule 15. Para
pagdating ng Pre-week nabasa mo na yun, alam mo na yun. Hindi
What are the effects of forum shopping. ka na magkakaroon ng cross reference. That would save you time.
(1)Summary dismissal of the cases.
(2)Contempt Sec. 9 Order of Default. An order of default is different from a
(3)Administrative Liability under Sec. 5. judgment by default. An order is an order issued by the court.
While a judgment is a decision rendered by the court. If you use
Now let’s go to certification against forum shopping. the word order, use the word issued. If you use the word judgment
or decision, use the word rendered. Order is an order of the court.
In the form of an affidavit, stating among others that he has not It is interlocutory in character. Judgment is a final adjudication
commenced. All initiatory pleadings have certification against upon the merits.
forum shopping.
What is an order of default?
Can there be a motu proprio dismissal of the action based on
failure to comply with the certification against non forum- It is an order issued by a court for failure on the part of the
shopping? Either in a direct question or in the form of a problem. defendant to file responsive pleading within the period prescribe
The answer is No. There are two basis there. (1) It does not fall by the Rules. So that Rule 9 has a correlation with Rule 11. When
under Sec. 1, Rule 9. (2) By express provision of Sec. 5, Rule 7, it to file responsive pleading.
can be dismissed by hearing or motion. That pertains to
certification against non forum shopping. Hindi ka nagfile ng answer. In default ka. Pagdisumagot. Anu ba
kailangan sagutin. Lahat ng initiatory pleadings. It should be
You cannot amend by express provision of Sec. 5. answered. So kanina may binangit tayo. Original complaint.
2017: AUSL BarOps Remedial Law Team Page 105 of 109
Permissive. Cross. Third. Fourth. Complaint-In-Intervention. (2) Before the rendition of judgment, another remedy is Motion
Complaint-In-Interpleader. Verified Statement of Claims. That all to Admit Answer. That is by way of jurisprudence.
must be answered. Sa small claims walang declaration of default.
In case your Motion to Lift Order of Default is denied. File a Motion
So what are the requirements for a motion in default? for Reconsideration. Both the Order of Default, the Order denying
the Motion to Lift, the Order denying the Motion for
(1)There must be a motion in writing. Reconsideration are all interlocutory orders.
(2)There must be a valid service of summons.
(3)There must be proof of failure on the part of the defendant to What is your remedy? Itong order ba na ito tinatapos ang buong
file responsive pleading in accordance with the provision of kaso o hindi? Pagtinatapos nya. Final yun. Paghindi nya tinatapos.
Rule 11. Interlocutory yun.

So if the service of summons is not valid; therefore, defendant If interlocutory, it is not appealable under Sec. 1, Rule 41. No
need not answer. The court did not acquire jurisdiction over his appeal may be taken from an interlocutory order. So considering
person. It is upon motion in writing. that the order of default does not disposes of the action in its
entirety and leaves something to be done by the trial court that is
Can there be motu proprio declaration of default? General rule, interlocutory; that is not appealable.
No. Because under Rule 9. It must be in writing. But take note of So what is your remedy if there is an order of default? Since the
Sec. 2 on Environmental Cases. Failure on the part of the order of default is interlocutory and not appealable; certiorari is
defendant to file an answer. The court may outrightly declare the the remedy. Rule 65. There are only three remedies under Rule
defendant in default. That is a motu proprio declaration of default. 65. Petition for certiorari. Prohibition. Mandamus. You cannot use
Take note of Sec. 15. mandamus because you are not ordering the performance of an
act. You cannot use Prohibition because you are not prohibiting
What is Precautionary Principle? BAR 2014 the performance of an act. You are trying to annul the order;
Kalikasan, Continuing Mandamus, SLAP. therefore, that is certiorari. So if you answer the question make
Strategic Lawsuit Against Participation. It is an action whether sure that you have a reference or a basis. Since an order of default
civil, criminal, administrative, filed against an individual. Officer, is an interlocutory order, and not appealable under Sec. 1, Rule
government officer, or government units who has initiated an 41, and as provided for under Sec. the special civil action is the
action for the enforcement and protection of environment for the remedy; therefore, 65 petition for certiorari is proper remedy.
purpose of harassing, vexing, annoying, etc.
No Order of Default.
It is a countercharge. Para magkaruon tayo ng idea kung anu yon.
So nag file ang individual ng kaso for the enforcement of (1)Annulment.
environmental laws, rules and regulations. Yung dinemanda (2)Declaration of Nullity.
nagdemanda din. Either civil, administrative, or criminal to vex. (3)Legal Separation.
(4)Summary Proceedings.
If that is a civil case, you can file an Answer raise the SLAP as an (5)Small Claims Case. And,
affirmative defense. (6)Environmental Cases. Together with Amparo and Data.

But in criminal, it is different. You can file a motion to dismiss Judgment by Default.
based on the ground of SLAP.
Judgment rendered by the court following the order of default
What then would be the quantum of evidence? based on the presentation of evidence ex parte by the plaintiff.

The one against whom the SLAP was filed. The burden or the If there is a judgment of default, what is your remedy?
quantum of evidence is merely substantial. But the one who filed
the SLAP, then the quantum of evidence is preponderance. Ito What are the possible remedy or remedies in case of Judgment by
lang ang isa sa mga judicial proceedings na ang burden ay Default? (General Question) So you have to determine before
substantial at preponderance. after finality of judgment. Motion for Reconsideration or New Trial
under Rule 37. And after finality, we have Rule 38, Petition for
May warrantless arrest ba sa environmental rules? Annulment, collateral attack.

Nagtatapon ka ng toxic waste sa may Ayala Bridge. Nakita ka ng In case your Motion for Reconsideration or New Trial has been
police hinuli ka. Would that be a valid warrantless arrest? YES, Sec. denied, what would be your remedy? Ordinarily, you are going to
5, Rule 113. think, judgment that is appealable. But again the judgment by
default was based only on the plaintiffs evidence. So on appeal,
Kung meron order of declaration of default. Two remedies: there is nothing to review by the appellate court except the
(1)Motion to lift order of default under Sec. 3, Rule 9. Verification. evidence of the plaintiff. So if that is the case appeal is not an
Affidavit of Merit on the grounds of extrinsic fraud, accident, adequate speedy remedy. Certiorari is the remedy.
mistake or excusable negligence. Sec. 1, Rule 17, 38, 47. All
have extrinsic fraud.
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So if appeal is not an adequate speedy remedy; certiorari is a
remedy. But mere filing of a petition for certiorari will not stop the What is the remedy? If it is with prejudice, you appeal. If without
running of default, you should temporary restraining order or writ prejudice, you refile.
of injunction.
Paginamend substantially, merong answer yan. You have to file an
The proper answer there is petition for certiorari with temporary answer. Would your answer in the original complaint; would be
restraining order or writ of injunction. your answer in the amended? You have to file your answer to the
amended complaint; otherwise, you will be declared in default
What is a Single Motion Rule? also.

There will be only one Motion for Reconsideration that can be RULE 11. WHEN TO FILE RESPONSIVE PLEADINGS.
filed under the Rules; except when there is special compelling Periods lang yan.
reasons and only by the Supreme Court. So if the case is with the
SC, you may be allowed with leave of court. Ilagay mo na sa Rule RULE 12. BILL OF PARTICULARS
37, 32. Intracorporate dispute under the Securities Regulation Code.
Nagfile ng complaint may ambiguity; therefore, nag file ng motion
What is Berry Rule. for bill of particulars, that is prohibited under the Rules.

Motion for New Trial on the ground of newly discovered evidence. If the motion for bill of particulars is denied, what is your remedy?
Ginamit sa criminal case under Rule 121. Pwede rin dyan sa Rule File responsive pleading within the balance to which he is entitled
37. to but in no case less than five days.

Now, if you use motion for reconsideration Rule 37, that only Iba po ang motion for bill of particulars sa bill of particulars.
covers judgments, orders or resolutions. Di kasama ang
interlocutory order dyan. So if that is interlocutory in character. RULE 13. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND
Hindi po Rule 37 ang gamit don. Sec. 4, Rule 65, with relation to OTHER PAPERS
Rule 37. So impress the examiner, that is preparatory to the filing
of a petition for certiorari before the appellate court for purposes Lis pendens. Sec. 14, Rule 13. Nagaapply lang ang lis pendens, if
of review. the action that was filed action involving title to, possession, or
interest over a real property. Nauuna ang action bago ang lis
RULE 10. Amendments. pendens.

BAR 2005. Amendment to confer Jurisdiction before filing of If your lis pendens is denied, what is your remedy? Appeal five
responsive pleading is allowed. days. Sec. 117, Land Registration Authority. Pag denied by LRA,
petition for review under Rule 43. Sa Court of Appeals, fifteen
In case of service of summons, may service of summons ba kapag days.
may amendment? No, tingnan mo if the court has already
acquired jurisdiction over the defending party. There is already What is the remedy if the decision of the RTC, Special Commercial
acquisition of jurisdiction, no need of summons. Otherwise, you Court, violation of Intellectual Property Code? That is Rule 43 not
have to serve summons. Rule 41. Nabasa nyo na ba ang Rules sa Intellectual Property
Cases? Rule 43 po yun. Petition for review fifteen days.
Distinction. Amendment. Supplemental.
Is lis pendens the same with litis pendencia?
Amendment is the changing, omitting, allegations etc.
Supplemental is to supplant, supplement. Amendment is either a Auter action pendant. That is litis pendencia.
matter or right or a matter of discretion. Supplemental is always
with leave of court. NO. Lis pendens is notice or annotated at the back of the title
before the Register of Deeds were the property is located. That is
Amendment to conform to or authorize presentation of evidence. a ground for Motion to Dismiss. Notice of lis pendens is filed
Tandaan. Issues not raised in the pleadings tried by both parties before the office of the Register of Deeds. Motion to Dismiss on
with their express or implied consent, the court may allow the the basis of litis pendencia is filed before the court.
amendment of the pleadings in order to conform to the evidence
presented. Pero kung walang amendment, as if the issue will RULE 14. SUMMONS.
Juridical entities without resident agent in the Philippines
If you file a motion to amend, and the movant because of the busy transacting business duon sa Adm. Matter 1163. How would you
schedule was not able to file the amended pleading. What will serve the summons? (1)Personal.
happen? That may be a ground for the dismissal of the action (2)Through the DFA.
under Sec,. 3, Rule 17, Failure to comply with the order of the (3)We have publication.
court would cause dismissal with prejudice otherwise ordered of (4)Fac simile other electronic means.
the court without prejudice.
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Can you serve summons by fac simile? YES, Adm. Matter 1163. Exclusive po ba ang motion to dismiss? (a) to (j) Condition
precedent yung huling huli dyan.
Sec. 15, Rule 14. Extraterritorial. Any other modes which the court
may deem proper, What are the grounds in which the dismissal is with prejudice?
Markahan nyo na po isa isa because all the rest is without
Service of Summons. The purpose is to acquire jurisdiction over prejudice.
the person of the defending party. In case of action in rem, action
quasi in rem, for purposes of compliance with due process. Ano yung with prejudice? (f) (h) (i) Remedy, appeal Sec. 5.

Personam. In rem. If the motion to dismiss is grounded on the lack of jurisdiction over
the person of the defending party; possible actions of the court,
Personam. Judgment liable parties. either to grant, deny the same or issue alias summons. Because
alias summons can be issued if the original summon has not been
In rem. Binds the whole world. Or yung mga Special Proceedings. duly served.

Ano yung mga quasi in rem proceedings? Foreclosure of Distinction. Rule 16 and Rule 33. Demurrer to Evidence.
mortgage. Attachment.
Kanina diniscuss na natin yan. Motion to Dismiss. Meron isang
The purpose of the summons is only to comply with due process. jurisprudence eh.

Acquisition of the property subject matter of the action. Sinong pwedeng mag grant ng demurrer to evidence?

Sec. 20. Voluntary appearance. Kung ikaw ay nag file any motion, Can an appellate court or courts grant a motion for demurrer to
you appear there without questioning the jurisdiction of the court; evidence?
therefore, that is voluntary submission. If you file a motion for
extension of time; therefore, that is voluntary submission. For May case dyan eh. Sabi ng SC nung 2011. Only the trial court may
example, you file a motion to dismiss questioning the jurisdiction grant demurrer to evidence not appellate courts. That is in civil
of the court that would not be voluntary submission. case.

Can there be service of summons by publication in an action in But different po dun sa criminal, naalala nyo yung kaso ni Gloria
personam? Kasi diba young service of summons in case of actions Macapagal Arroyo, nagkaroon ng Demurrer to Evidence diba?
that is in personam, it’s either personal or substituted. May Then it was denied. Umakyat on certiorari dun sa SC. Una hindi sya
exception dun. Sec. 14, Rule 14. In any action where the identity dumaan don sa proseso ng Hierarchy of Courts. Bakit dun sa SC?
or whereabouts of the defendant is unknown, in any action that There is special and compelling reasons. An exception to hierarchy
includes action in personam. of courts. Second, sabi nila appellate courts cannot grant
demurrer to evidence. So that is a deviation from the the ruling in
RULE 15. MOTIONS civil procedure. Tingnan nyo young Gloria Macapagal Arroyo.
Although that is beyond, still that is within the Syllabus.
Is a letter a motion? As a rule, a letter is not a motion. In order to
be a motion, there must be Sec. 4,5,6, Rule 14. Except in Sec. 3 e RULE 17. DISMISSAL OF ACTIONS.
small claims.
Two dismissal rule. Ano bang requisite ng two dismissal rule? (1)
What is the definition of motion under the Rules on Small Claims? There are two dismissal based on the same parties by a court of
competent jurisdiction. Second dismissal would amount to barred
A request whether oral or written requiring an order or an action by prior judgment. So the second dismissal is a final order of
from the court including informal request or letter. dismissal. So therefore, appeal is the remedy.

Is a letter a motion? Tingnan mo kung ang kaso small claims. Now, Sec. 3. Padilla v. Global Seatic. Pagtiningnan mo young Rules
nag file ng letter ang defendant Dear Judge we request that the without prejudice to the counterclaim raised by the defendant
case be reset to Date because I am suffering from loose bowel which can be prosecuted in the same case in a separate case. With
movement. Lovingly yours defendant. Tingnan mo muna kung yan the advent of the ruling of Global Seatic, the dismissal of the
ay ordinary or small claims. original action causes the dismissal of everything that includes
counterclaim. Your remedy there is to file a separate claim as far
If what is involved is Php 200,000 payment of money or as your counterclaim is concerned. 2014. That is a deviation from
reimbursement of money arising from those enumerated the Rules.
damages, delict, quasi-delict or quasi-contract or contract of
lease, mortgage. That is small claims. That is a motion. Sec. 3 e, RULE 18. PRE-TRIAL
Rules on Small Claims.
Doctrine of non-suited. Failure to appear on the part of the
RULE 16. MOTION TO DISMISS. plaintiff would cause the dismissal of the action with prejudice
unless otherwise ordered by the court without prejudice.
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BAR 2008. One day one witness rule.

May isa pang natitira dun sa amendment nuns 2004 sa Rule18.

Most Important Witness Rule.

During Pre-Trial, the … who are the most important witnesses to

be presented during the trial in order to limit corroborative
testimonies. Yung po yung tinatawag na most important witness

Motion ex parte is required as a general rule, meron pong

jurisprudence dyan. Would the failure on the part of the plaintiff
to file a motion ex parte to set the case for pre-trial confer ground
for the dismissal of the action Sec. 3, Rule 17. Failure to comply
with the provisions of the Rules of Court. Yun yung nagging issue.
Sabi ng SC NO, the clerk of court is mandated to issue a notice of
pre-trial conference.

Can a pre-trial conference be waived? General Rule, No. But there

is a case in 2010, di nakita ng dalawang parties na walling pre-trial
conference, nag proceed with the trial, nag present na ng
evidence. Nung nag appeal, walling pre-trial conference which is
mandatory. Therefore, the decisions and all proceedings are null
and void. Sabi ng SC, you should have raised that in the trial court
because as a rule you cannot raise the issue for the first time on
appeal except lack of jurisdiction. That is the only case na nag rule,
the right or the privilege to invoke the right to pre-trial conference
is waived. Tandaan nyo yan ha. Wag kakalimutan.

Ano ang remedy in case the plaintiff failed to appear

Ang problema if the defendant failed to appear? There will be

presentation of evidence ex parte. If there is an order for the
presentation of evidence, therefore, you have to file a motion for
reconsideration on the order that is before the fifteen day period.
Pero halimbawa meron ng order at meron ng judgment. So you
have to determine whether the judgment is already final. If it is
not final, then motion for reconsideration and new trial is proper
remedy. If it is already final and executory, then 38, 47, 65
collateral attack.

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