ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 1. GENERAL PRINCIPLES IN Q: Compare substantive and remedial law. REMEDIAL LAW rn AUS cUUV Aan Q: What is remedial law? ‘A: Itis abranch of law that prescribes the methods of enforcing rights and obligations created by ‘substantive law. (Bustos vs. Judge Lucero, G.R. No. L-2068, 1948) Q: What is the doctrine of hierarchy of courts? ‘A: The judicial system follows a ladderized scheme which in essence requires the lower courts to initially decide on a case before it is considered by a higher court. ‘A higher court will not entertain direct resort to it Unless the redress cannot be obtained in the appropriate courts (Santiago v. Vasquez, G.R. ‘Nos. 99289-90, 1993) ‘A direct invocation of the Supreme Court's original jurisdiction to issve this writ should be allowed only When there are special and important reasons, clearly and specifically set out in the petition. (Republic v. Caguioa, G.R. No. 174385, 2013) What is the exhaustion of administrative remedies? ‘A: The general rules that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be ‘summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation. (Addition His _v. ‘Megaworld, GR. No. 175039, 2012 citing Republic v. Lacap, G.R. No. 198253, 2007) Roum Prescribes the regulates rights and| methods of enforcing duties concerning life, | rights and obligations liberty or property | created by substantive which when violated law. It provides a gives rise to a cause of | procedural system for action. obtaining redress for the invasion of rights and violations of duties. It also prescribes rules as to how suits are filed, tried and decided upon by the courts. (Bustos vs. Lucero, G.R. No. L- 2068, 1948) Creates, defines and What are the limitations on the rule-making power of the Supreme Court under the Constitution? A a. The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases; b. The rules shall be uniform for courts of the same grade; and c. The rules shall not diminish, increase, or ‘modify substantive rights (Pit. Const. art vil, § 5.) PAGE 1 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ENERAL PRINCIPLES ON JURISDICTION @: How is jurisdiction of the court determined? ‘A: The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action, (Narra Nickel Mining v. Redmont, GR. No. 195580, 2014) EXCEPT: Unless such statute provides for its retroactive application, as where it is a curative legislation. (Atlas Fertiizer v. Navarro, G.R. No 72074, 1987) The cour jurisdiction over a case only upon payment of the prescribed docket fee. (Pacific Redhouse Corp v. EIB Securities, G.R. ‘No. 184036, 2010) When several courts have concurrent jurisdiction, the first court which acquires jurisdiction retains it to the exclusion of the others. (Nenaria v. Veluz, GR No. L-4683, 1952) @: How is jurisdiction over the plaintiff acquired? A: Jurisdiction over the person of the plaintiff is acquired by the filing of the initiatory pleading, such as a complaint (De Joya v. Marquez, G.R. No, 162416, 2006). @: How is jurisdiction over the issues acquired? A: Itis acquired or conferred by the pleadings (De Joya v. Marquez, G.R. No. 162416, 2006). Q: How is jurisdiction over the res or property acquired? ‘A; Itis acquited by the seizure of the thing under legal process or it may result from the institution of legal proceedings (De Joya v. Marquez, G.R. No, 162416, 2006) @: What are some actions incapable of pecuniary estimation? A 4. Actions for specific performance; 2. Actions for support which will require the determination of the civil status; 3. The right to support of the plaintiff; 4. Those for the annulment of decisions of lower courts; 5. Those for the rescission or reformation of contracts; 6. Interpretation of a contractual stipulation (Heirs of Bautista v. Lindo, G.R. No. 108232, 2014). Q: X filed a complaint to enforce his right granted by law to recover the lot subject of free patent. Which court has jurisdiction over the complaint? ‘A: RTC. The action is for specific performance; hence, incapable of pecuniary estimation and is cognizable by the RTC. Although the selling price is less than PHP 20,000, the RTC still has jurisdiction because the repurchase of the lots is only incidental to the exercise of the right to redeem. The reconveyance of the title to petitioners is not the principal or main relief or remedy sought (Heirs of Bautista v. Lindo G.R. No. 208232, 2014), Q: What is the nature of an action to recover, deficiency on the extrajudicial foreclosure? A: Itis a personal action for it does not affect ttle to oF possession of real property, or any interest therein (BPI Savings Bank v. Spouses Benedicto, GR. No. 175796, 2015). ): M filed before the DENR two Townsite Sales Applications. Upon his death, his applications were transferred to his heirs, X. N executed a deed of transfer of rights, transferring hereditary share in the property covered by TSA No. 123 to Sps Y and Z. Sometime thereafter, an OCT was issued in favor of X. X filed before the RTC a Complaint or Recovery of Possession of Real Property against Y and Z. X allege that they are the true owners of the parcel of land that Y and Z's TSA encroach upon the subject property. PAGE 20F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW RTC ruled in favor of X, but CA reversed the decision on the ground of lack of jurisdiction. Did RTC acquire jurisdiction over the complaint? (DEL CASTILLO) No. The Court held that in an action for recovery of possession, the assessed value of the property sought to’ be recovered determines the cour's jurisdiction. inthis case, for the RTC to exercise jurisdiction, the assessed value of the subject property must exceed 20,000.00. Since X failed to allege in their Complaint the assessed value of the subject Property, the CA correctly dismissed the ‘Complaint as petitioners failed to establish that the RTC had jurisdiction over it. In fact, since the assessed value of the property was not alleged, it ‘cannot be determined which tral court had original and exclusive jurisdiction over the case. In an action to recover, the property must be identified. The plaintf, therefore, is duty-bound to Clearly identify the land sought to be recovered, in accordance with the tile on which he anchors his Tight of ownership. In this case, X failed to identity the property they seek to recover as they failed to describe the location, the area, as well as the boundaries thereof. (Heirs of Julao v Alejandro, G.R. No. 176020, September 29, 2014) @; What happens when the venue was improperly laid? ‘A: In civil proceedings, venue is procedural, not jurisdictional, and it may be waived by the defendant if not seasonably raised either in a motion to dismiss or in the answer (BP! Family Savings Bank, Inc. v. Yujuico, G.R. No. 175796, 2018). Q: Which is the basis in determining which court has jurisdiction over a complaint for accion publiciana? : It depends on the assessed value of the property (Supapo v. Sps. de Jesus, G.R. No. 198356, 2019). The case is for the declaration of the nullity of a contract of loan and its accompanying continuing surety agreement, and the real estate and chattel mortgages. What is the nature of the action? A: Itis a personal action; hence, its filing in Cebu City, the place of business of one of the plaintiffs, was correct under Section 2, Rule 4 of the Rules of Court. The venue of @ personal action is the place where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff, for which reason the action is considered a TRANSITORY one. Unlike a real action, where it has to be commenced and tried in the proper court having jurisdiction over the area wherein the real property involved, or a portion thereof is situated, which explains why the action is also referred to as a LOCAL action (BPI v, Hontanosas, G.R. No. 15761326, 2014) @: What is the doctrine of adherence of jurisdiction? ‘A: Once jurisdiction has attached, it cannot be ousted by subsequent happenings or events, although the event is of such character which ‘would have prevented jurisdiction from attaching in the first instance. Once jurisdiction has been acquired by the court, it retains that jurisdiction until it finally disposes of the case (Banitua v. Mercader, G.R. No. 136048, 2001). Q: Does exclusive venue stipulation apply where the complaint assails the validity of the written instrument? ‘A: No. In cases where the complaint assails only the terms, conditions, andlor coverage of a written instrument and not its validity, the exclusive venue stipulation contained therein shall stil be binding on the parties, and thus, the complaint may be properly dismissed on the ground of improper venue. However, if the complaint assailis the validity of the written instrument itself, the parties should not be bound by the exclusive venue stipulation contained therein. It would be inherently inconsistent for a complaint of this nature to recognize the exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained (Briones v. CA, G.R. No. 204444, 2015). PAGE3OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ll, JURISDICTION OF COURTS. NOTE: The Jurisdiction tables below are taken from Feria’, Justice Jose Y. and Atty. Maria Concepcion S. Noche. Civil Procedure Annotated. Vol. 1. 2013 Ed. Quezon City: Central Book Supply, Inc., 2013. 665- 700, updated with jurisprudence and new laws. 4. SUPREME COURT (Feria and Noche, pp.665-668) OX i. Original and Exclusive Petitions for the issuance of writs of certiorari, prohibition and mandamus against: 1. Court of Appeals. 2. Commission on Elections. | 3. Commission on Audit 4. Sandiganbayan, Court of Tax Appeals. a ii, Original and Concurrent 1. With the CA 7. Petitions for the issuance of writs of certiorari, prohibition and ‘mandamus against: ‘a. NLRC. [However, the petitions should be filed with the CA based on hierarchy of courts; otherwise, they shall be dismissed.) b. CSC. c. Quasi-Judicial Agencies. [However, the petitions should be filed with the CA] d. RTC and lower cour. fe 2. Petitions for the issuance of a writ of kalikasan. 2. With the CA, SB and | 1. Petition for writ of amparo, ' RTC 2. Petition for writ of habeas data, 3. With the CA and RTC _| 1. Petitions for habeas corpus and quo warranto. 2. Petitions for the issuance of writs of certiorari, prohibition and ‘mandamus against lower courts or bodies. | 3, Petitions for the issuance of wit of continuing mandamus in | | environmental cases. 4. With the RTC ‘Actions affecting ambassadors, other public ministers and consuls. Gee eu | 1. Appeal by Notice of | From the RTC or the SB in all criminal cases where the penelty imposed | Appeal is reclusion perpetua or higher, and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense, regardless of whether the accused are charged principals, accomplices or accessories, or whether they have been tried jointly or separately. 8 appeal, the SC reviews the questions tw and of fact dace by te cout 0, | PAGE 4 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. Appeal by Petition for | Appeals from the: Review on Certiorari 4. Court of Appeals 2. Sandiganbayan - on pure questions of law, except in cases where the penaity imposed is reclusion perpetua, ife imprisonment or death 3. Court of Tax Appeals. 4, Regional Trial Courts - exercising original jurisdiction in the following cases 2. If no question of fact is involved and the cases involves: (i) Constitutionalty or validity of any treaty, international or executive agreement, law, presidential decree, protlamation, order, instruction, ordinance or regulation in question i) Legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; or (iii) Jurisdiction of lower courts is in issue (Note: If, in addition to constitutional, tax, or jurisdictional questions, the cases mentioned in (i), (i) and (ii) above also involve questions. Of fact or mixed questions of fact and law, the aggrieved party shall appeal to the CA; and the final judgment or decision of the latter may be reviewed, revised, reversed, modified or affirmed by the SC on writ of certiorari) . All cases in which only errors of questions of law are involved, 3. Special Civil Action of _| Decision, order or ruling of: Certiorari within 30 days _| 1. Commission on Elections. i | 2. Commission on Audit. (Feria and Noche, pp. 669-672) (a) ORIGINAL JURISDICTION i. Original and Exclusive ‘Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction. |. Original and Concurrent 7. With the SC 7. Petitions for the issuance of writs of certiorari, prohibition and mandamus against: | a. NLRC. (However, the petitions should be filed with the CA; otherwise, they shall be dismissed] b. CSC. cc. Quasi-Judicial Agencies. (However, the petitions should be filed with the CA] d, RTC and lower courts. 2. Petitions for the issuance of a writ of kalikasan. 2. With the SC, SB, and | 1. Petition for writ of amparo. RTC 2. Petition for writ of habeas data. | PAGE 5 OF 157 NN enATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 3. With the SC and RTC _| 1. Petitions for habeas corpus and quo warranto. 2. Petitions for the issuance of wits of certiorari, prohibition and mandamus against lower courts or bodies. 3. Petitions for the issuance of writ of continuing mandamus in environmental cases, Ova uen 7. Exclusive Appellate [Ordinary Appeaiby [Appeals rom SS Notice of 2. Appealor —_| 1. RTC in the exercise of its original jurisdiction, except in all cases where | Record on Appeal | only questions of law are raised or involved, which are appealable to | the SC by petition for review on certiorari in accordance with Rule 45 2. RTC on constitutional and jurisdictional questions which involve questions of fact 3. Family Courts 3. Appeal by Petition for | An appeal may be taken tothe CA whether the appeal involves questions | | Review | of fact, mixed questions of fact and law, 3 of law, in the following cases: Regular 1. Appeals from RTC in the exercise of its appellate jurisdiction. Special 1. Appeals from CSC. 2. Appeals from QuastvJudicial Agencies: ‘Securities and Exchange Commission Office of the President Land Registration Authority Social Security Commission Civil and Aeronautics Board Intellectual Property Office National Electrification Administration Energy Regulatory Commission National Telecommunications Commission Department of Agrarian Reform under RA 6657 Government Service Insurance System Employees Service Insurance System Insurance Commission Philippine Atomic Energy Commission Board of Investments Construction Industry Arbitration Commission Voluntary Arbitrators authorized by law ‘Ombudsman, in administrative disciplinary cases National Commission on Indigenous Peoples or eposg-xS-serpn0gD From the judgments or final orders or resolutions of the CA, the aggrieved parly may appeal by certiorari to the SC as provided in Rule 45. Judgments and final orders of the CTA en banc are now appealable to | the SC through a petition for review under Rule 45, pursuant to RA 9282 PAGE 6 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 3. SANDIGANBAYAN (as amended by Section 4, R.A. 10660, promulgated April 16, 2015) 1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, otherwise known as An Act Deciaring Forfeiture in favor of the State any Property Found to have been Uniawuly Acquired by any Public Orficer or Employee and Providing for the Proceedings therefor, and Chapter lI, Section 2, Tile Vil, Book Il of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, atthe time of the commission of the offense: a. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including i. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads: ii, City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; ii. Offcias of the diplomatic service occupying the position of consul and higher: iv. Philippine army and air force colonels, naval captains, and all officers of higher rank; V. Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent and higher; vi, City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecut vii, Presidents, directors or trustees, or managers of govemmentowned or controlled corporations, state universities or educational institutions or foundations. Note: Those specifically mentioned herein (a-g) need not be with a salary grade of 27 or higher to be under the jurisdiction of the Sandigantayan. (Inding v. Sandiganbayan, G.R. No. 143047, 2004) b. Members of Congress and officials thereof classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989; ‘c. Members of the judiciary without prejudice tothe provisions of the Constitution; 4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; and All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. Note: In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27 fr higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their ‘respective jurisdictions as provided in Batas Pambansa Big. 129, as amended. PAGE7 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials. and employees mentioned in subsection a. of this section in relation to their office. The Offense is in relation to the office when ‘a. The offense is intimately connected with the office of the offender and perpetrated while he was in the performance of his official functions b. The crime cannot exist without the office | c. The office is a constituent element of the crime as defined in the statute | If the character of being “in relalion lo his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the Sandiganbayan, | 3. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1,2, 14 and 14- A, issued in 1986. law or Rules of Court to the contrary notwithstanding, the criminal action and the wultaneously instituted Note: Any provisions corresponding civil action for the recovery of civil liability shalt at all times be st with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, | the filing of the criminal action being deemed to necessarily carry with it the fling of the civil action, and 10 right to reserve the filing of such civil action separately from the criminal action shall be recognized Note: Where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned. 4, Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be-filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Note that the jurisdiction over these petitions ] shall not be exclusive of the Supreme Court ceases The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or ‘orders of Regional Trial Courts whether in the exercise of their own original jurisdiction or of their | appellate jurisdiction as provided in R.A. 10860, Note: The procedure prescribed in Batas Pambansa Big. 129, as well as the implementing rules that the ‘Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except Lin cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986, PAGE 8 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 4, COURT OF TAX APPEALS. VSO eass et een endeeen ‘Decisions from the COMMISSIONER OF INTERNAL REVENUE in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National internal Revenue Code (NIRC) or other laws administered by the Bureau of Internal Revenue (BIR). 2. Inaction by the COMMISSIONER INTERNAL REVENUE in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by the BIR, where the NIRC provides a specific period of action, in which case the Inaction shall be deemed a deniel. 3. Decisions, orders or resolutions of REGIONAL TRIAL COURTS in local tax cases originally decided or resolved by them in the exercise of their original and appeliate jurisdiction, 4. Decisions of the COMMISSIONER OF CUSTOMS in cases involving liability for custom duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs. 5. Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the Provincial or city board of assessment appeals. 6. Decisions of the SECRETARY OF FINANCE ‘on customs cases elevated to him/her automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code. 7. Decisions of the SECRETARY OF TRADE AND INDUSTRY in the case of non-agricultural product, commodity or article; and 8. Decisions of the SECRETARY OF AGRICULTURE in the case of agricultural product, commodity or article involving dumping and countervailing duties under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard ‘measures under the RA 8800, where either party may appeal the decision to impose or not to impose said duties. Cees 1. Exclusive Appellate Criminal cases arising from violations of the: Jurisdiction 4. National Internal Revenue Code. 2. Tariff and Customs Code. 3. Other laws administered by the BIR or the Bureau of Customs. PAGE 9. OF 157 LaATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Provided, however, ‘offenses or felonies mentioned in thi paragraph where the principal amount of taxes and fees, exclusive of charges and penalties, claimed in less than P1M or where there is no | specified amount claimed shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall be at ail times be simultaneously instituted with, and jointly determined in the ‘same proceeding by the CTA, the fling of the criminal action being deemed to necessarily carry with it the fling of the civil action, and no right to reserve the filing of such civil action separately from the criminal | action wil be recognized. ‘2. Exclusive Appellate | 1. Over appeals from the judgments, resolutions or orders of the RTC | Jurisdiction in tax cases originally decided by them, in their respective territorial ine | 2: Over peitions for review of the udgrents,resohons or order of | the RTC in ho exo oir apple ject ovr tox casos orcinaly cocied the MTC. MFC and MCTC in thor. rpocive jurisdi Esko cokes) 1. Exclusive Original ‘Cases involving final and executory assessment for taxes, fees, Jurisdiction charges and penalties: Provided, however, that collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1M shall be tried by the proper MTC, MoTC and RTC. 2, Exclusive Appellate Tn tax collection cases: Jurisdiction 1. Over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them, in their respective | territorial jurisaction 2, Over petitions for review of judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided the MeTC, MTC and MCTC in their respective | Jurisdiction, J PAGE 10 OF 157 SSATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2018 Ree i. Original and Exclusive 5, REGIONAL TRIAL COURTS: 1. CIVIL Cases ‘Criminal cases not within the exclusive jurisdiction of any court, tribunal 1. Givil actions in which the subject of litigation is incapable of pecuniary estimation 2. Civil actions which involve the title to, or possession of, REAL property, or any interest therein, where the assessed value of the property involved exceeds P20K, or PS0K if in Metro Manila, except actions forcible entry and unlawful detainer which are cognizable by the MeTC, MTC, MCTC. 3. Actions in admiralty and maritime jurisdiction where the demand or claim exceeds P300K, or P400K if in Metro Manila. 4. Matters of probate, both testate and intestate, where the gross value of the estate exceeds P300K, or P400K if in Metro Manila, 5. Cases not within the exclusive jurisdiction of any court, tribunal, Person or body exercising judicial or quasi-judicial functions, 6. Actions involving the contract of marriage and marital relations. 7. Civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Special Agrarian Courts as now provided by law. 8. Other cases in which the demand, exclusive of interest, damages of whatever kind, attorey's fees, litigation expenses, and costs or the value of the property in controversy, exceeds P300k, or P400K if in ‘Metro Manila. IMPORTANT: If the claim for damages is the main cause of action, the ‘amount thereof shall be considered in determining the jurisdiction of the court or body, such as the following: 1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine. 2. Those not falling under the original jurisdiction of the Sandiganbayan where none of the principal accused are occupying positions corresponding to salary grade ourts as now provided by law., except ‘actions for Manila.try and unlawful detainer which are co their equivalent and the penalty provided by law exceeds 6 years imprisonment, inrespective of fine. PAGE 11 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 3. Only penalty provided by law is a fine exceeding PAK 4. Over criminal cases specifically conferred by special laws: 2. Ubel and written defamation. Administrative Order No. 104- 96, 1996 designated the RTC as special court having jurisdiction in libel cases. b. Violations of the Comprehensive Dangerous Drugs Act of 2002. Regardless of its penalty, the jurisdiction falls within the Regional Trial Court designated as Drugs Cour. (People v. Morales, G.R. No. 126623, 1997; RA. No. 9168, Soc. 90). But ifthe case involves a minor, the jurisdiction fies with the Family Courts. (R.A. 8369, ase c. Violations of intellectual property rights. (A.M. No. 03-03- 03-SC, 2003) Election offenses @. Violations of the Anti-Violence against Women and their | Children Act of 2004 (specifically, those involving violence jainst women and children as defined under Section 5) f. Violations of the Comprehensive Agrarian Reform Law. N.B.: Family Courts have exclusive original jurisdiction over criminal cases where one or more of the accused is below 18 years old, or when one or more of the victims is 2 minor at the time of the commission of the offense. However, ifthe victim has already died, such as in homicide cases, the regular courts can have jurisdiction. (People v Dela Torre-Yadao (G.R. Nos. 162144-54) 3. OTHER Cases T. Actions for recognition and enforcement of an arbitration agreement for vacation, setting aside, correction or modification of an arbitral award, and any application with a court for arbitration assistance and supervision. 2. Actions for determination of just compensation to land under the CARL. 3. R.A, 10660 (promulgated April 16, 2015): The REGIONAL TRIAL COURT shall have exclusive original jurisdiction where the information involving civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A (1986): 8. Doss not allege any damage to the government or any bribery: or b. Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding One milion pesos (P1,000,000.00). Note: Subject to the rules promulgated by the Supreme Court, the cases falling under the jurisdiction of the Regional Trial Court under Section 4 of R.A. 10660 shal be tried ina judicial region other than where the oficial holds office. ii. Original and Concurrent T.With the SC [[Aelions affecing ambassadors and other publ ministers and consuls PAGE 12 OF 187ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. With the SC and CA ‘3. With the SC, CA “4. With the Insurance ‘Commissioner 1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which may be enforced in any part of their respective regions. 2. Petition for the issuance of writ of continuing mandamus in environmental cases. ‘SB | 1. Petition for writ of amparo. 2. Petition for wrt of habeas data, Claims not exceeding P100K. This is applicable ect of the action is incapable of pecuniary estimation; otherwise, jurisdiction is concurrent with the MeTC. Ovary) Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Jurisdiction, (c) SPECIAL JURISDICTION ‘The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the SC may [determine in the interest of a speedy and efficient administration of justice. PAGE 13. OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 6. FAMILY COURTS (Feria and Noche, pp. 690-692) Puc raoe herr nese) 1. Criminal cases where one or more of the accused is 1Sandle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction ‘of quasi-judicial bodies and agencies and ascertain any civil lability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to the Child and Youth Welfare Code (PD 603). 2, Petitions for guardianship, custody of children, habeas corpus in relation to the latter. 3. Petitions for adoption of children and revocation thereof. 4. Complaints for annulment of marriage, dectaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and | agreements, and petitions for dissolution of conjugal partnership or gains. | 5, Petitions for support and/or acknowledgment. 6, Summary judicial proceedings brought under the provisions of the Family Code of the Philippines (E.O No. 209), 7. Petitions for declaration of status of children as abandoned, dependent or neglected children; pet for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under the Child and Youth Welfare Code (PD 603), Authorizing the Ministry of Social Services and Development to Take Protective Custody of Child Prostitutes and Sexually Exploited Children, and for Other Purposes (E.. $6), and other related laws. 8. Petitions for constitution of the family home. 9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2005. 10, Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination ‘Act (RA 7610), as amended by RA 7658 and RA 9231 11, Cases of violence against: ‘a. Women — which are acts of gender-based violence that result, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom of movement; and . Children — which include the commission of all forms of abuse, neglect, exploitation, violence and discrimination and all other conditions prejudicial to their development. TFan act consiluies a criminal offense, the accused or balierer shal be sibjedt fo orminal proceedings | and the corresponding penates, If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court PAGE 14 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 7. MUNICIPAL TRIAL COURTS and MeTC, MTC and MCTC (Feria and Noche, pp.685-689) Or aerate i. Original and Exclusive 1. Civil cases 1. Gil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of demand does NOT exceed P300K, or P400K if in Metro Manila, exclusive of interest, damages of whatever kind, attomey's fees, litigation expenses, and costs, the amount of which must be specifically alleged. However, interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the fling fees. 2. Admiralty and maritime cases where the demand or claim does NOT ‘exceed P300K, or P400K if in Metro Manila, Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions. 3. Forcible entry and unlawful detainer regardless of value of property involved, with jurisdiction to determine the issue of ownership only to resolve the issue of possession, 4. Civil actions which involve title to, or possession of, REAL property, ‘or any interest therein where the assessed value of the property or interest therein does NOT exceed P20K, or P5OK if in Metro Manila, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs. In cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. 5. Inclusion and exclusion of voters. PAGE 15 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. Criminal cases 7. Over all violations of city or municipal ordinances committed within their respective territorial jurisdictions; 2. Over all offenses punishable with imprisonment of not more than 6 years irrespective of the amount of fine (prision correccional); 3. Over all offenses punishable with fine only amounting to not more than P4,000.00 without the penalty of imprisonment. | 4. Over alll offenses (except violations of RA 3019 and Arts. 210 to 212, of RPC) committed by public officers and employees in relation to their office, including those employed in GOCCs and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment of not more than 6 years or where none of the accused holds a position classified as Grade “27” and higher; 5. In all cases of damage to property through criminal negligence, regardless of other penalties and the civil liabilities arising therefrom; 6. In cases of summary procedure for violations of 8.P. 22 (Bouncing | Checks Law). (A. M. No. 00-11-01-SC) 7. Summary procedure in cases of tratfic viotatio | rental law, violations of city or municipal ordinances, violations of BP 22, and all other offenses where the penalty does not exceed 6 months imprisonment and/or P1,000 fine, irrespective of other penalties or civil liabilities arising therefrom, and in offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000 8. Jurisdiction over cases where the imposable penalty is destierro considering that in the hierarchy of penalties under Article 71 of the Revised Penal Code, destierra follows arrest mayor which involves imprisonment. (People v. Eduarte, G.R. No. 88232, 1990) Municipal Trial Courts have no jurisdiction over cases which by provision of special law are to be heard before the Regional Trial Courts or the Sandiganbayan, even ifthe maximum penalty prescribed by such special law is less than 6 years. Included in such exceptions are ‘lection offenses, libel or written defamation, and violation of Section 39 of the Dangerous Drugs Act of 1972 (R.A. No. 6426). Petree eae) ‘Cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots where the value of which does NOT exceed P100K, such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. These cases are assigned and not ated. automatically de Chase PAGE 16 OF 157 oooATENEO CENTRAL BAR OPERATIONS 2018 In the absence of all the RTC Judges in a province or city: 1. Hear and decide petitions for writ of habeas corpus. 2. Hear and decide applications for bail in criminal cases. 1. CIVIL cases. REMEDIAL LAW (4) SUMMARY PROCEDURE 1. Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, 2. All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one hundred thousand pesos (P'100,000) or two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest and costs, (A.M. No. 02-11-09-SC) NOTE: Under the Sec. 11 of the 2016 Revised Rules of Procedure for ‘Small Claims Cases, if he case does not fall under such Rule, but falls, under summary or regular procedure, the case shall not be dismissed, Instead, the case shall be re-docketed under the appropriate procedure, and retumed to the court where it was assigned, subject to payment of any deficiency in the applicable regular rate of fling fees. If ‘a case is filed under the regular or summary procedure, but actually falls under the Rule for Small Claims cases, the case shall be referred to the Executive Judge for appropriate assignment. | | | 2. CRIMINAL cases 1. Traffic violations. 2. Rental law violations. 3. Violations of city or municipal ordinances. 4. Violations of 8.P. 22 (Bouncing Checks Law). 5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K, PAGE 17 0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Mi, CIVIL PROCEDURE ‘A ACTIONS Q: What are ordinary civil actions? A: Itis a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law (Rule 1, Sec. 3{a) as enunciated by Sps. Ochoa v. Chinabank, G.R. No. 192877, 2011). It is governed by ordinary rules. Q: Whatis a real action? A: Areal action affects ttle to or possession of reat property or an interest therein (Rule 4, Sec. f) Q: What is a personal action? ‘A: A personal action is one brought for the recovery of personal property, forthe enforcement of some contract or recovery of damages for its breach, or for the recovery of damages for the ‘commission of an injury to the person or property (Go v. UCPB, G.R. No. 156187, 2004) Q: What are actions in rem, in personam and quasi in rem? A (2) In Rem (DSC-ATIJDNR-JBWW) 1. A proceeding to determine the state or gondition of a thing (Lopez v. Director of Lands, G.R. No. L-22136, 1924). 2. Directed against the thing itself (Alba v. CA, GR. No. 164041, 2008). 3, Jurisdiction over the person of the defendant is not required (Biaco v. Carpo- Morales, G.R. No. 161417, 2007). 4. Judgment is binding on the whole world (Ang Lam V. Rosillosa, G.R. No. L- 3595, 1950). ‘An action in rem is one where the action is directed against the thing itself, as in land registration and cadastral proceedings (Domagas v Jensen, 6.R. No. 158407, 2005) (b) In Personam (IRPD-APP-JDR-JBPISI) 1. An action to impose a responsibility or liability upon a person directly (Domagas v Jensen, G.R. No. 158407, 2008) 2. Directed against a particular person. (Domagas v Jensen, G.R. No. 158407, 2008). 3. Jurisdiction over the person of the defendant is required (Domagas v Jensen, G.R. No. 158407, 2005) 4. Judgment is binding only upon the parties impleaded or their successors-in- (terest (Munoz v. Yabut, G.R. No. 142676, 2011), ‘An action in personam is one which has for its object @ judgment against the person. It is a proceeding lo enforce personal rights or obligations (Domagas v. Jensen, G.R. No. 158407, 2008). in an action in personam, when the defendant is a NON-resident of the Philippines, the court cannot acquire jurisdiction over the case because ‘summons cannot be served to that non-resident who is out of the country (Domagas v Jensen, G.R. No. 158407, 2005). - (©) Quasi in Rem (SIDPOL-APP-JDWR, JRA- JPP) 4.1t 1s a proceeding, the purpose of which is to subject the interest of a named defendant over a particular property to an ‘gbligation or fien burdening it 2. Directed against particular persons. 3.durisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired. 4.Judgment is binding upon the particular persons, A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. It deals with the status or ownership of a particular property (Domagas v. Jensen, supra) PAGE 18 OF 157 aATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘Q: What is an independent civil action? ‘A; In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of and simultaneously with the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action (Rule 111, Sec. 3). Requisites (PIO) 1. May be brought by the offended party; 2. Shall proceed independently of criminal action; and 3. Shall require only a preponderance of evidence (Rule 111, Sec. 3). Note: An offended party cannot recover damages twice for the same act or omission charged in the criminal action (Rule 111, Sec. 3) B. CAUSE OF ACTION Q: What is a cause of action? ‘A: A cause of action is an act or omission of one Party in violation of the legal rights of another (Rule 2, Sec. 2)) Q: What is a joinder of causes of action? ‘A: A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: 1. The party joining the causes of action shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions or actions governed by special rules; 3. Where the causes of action are between the ‘same patties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and 4. Where the claims in all the causes action are principally for recovery of money, the ‘aggregate amount claimed shall be the test of jurisdiction (Rule 2, Section 5). : What is a misjoinder of causes of action? : When there is a misjoinder of causes of action, the erroneously joined cause of action can be severed and proceeded with separately upon ‘motion by a party or upon the court's own initiative, (Rule 2, Sec. 6) Q: Compare right of action and cause of action. A CAUSE OF ACTION ‘A delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. RIGHT OF ACTION ‘Aremedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him/her, it is the right of a person to bring and prosecute an action to obtain a judgment, the elements of which are as follows: 1. There must be a cause of action; 2. Compliance with all the conditions precedents; and 3. Action must be instituted by the proper party. ‘While the “cause of action’ is the reason for the action (e.9. breach of contract), the “right of action” is the remedy or means afforded or the consequent relief (e.g., fling a civil action for recovery of damages on the ground of breach of ‘contract, Lastly, @ cause of action is not affected by affirmative defenses (fraud, prescription, estoppel etc.). On the other hand, a right of action may be lost or waived (e.g. through prescription if a complaint is not filed within the prescriptive period.) (Riano, 2014, p. 43) PAGE 19 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ARTIES TO CIVIL ACTIONS Q: Who is a real party-in-interest? A: A real part-in-interest is one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit, (Rule 3, Sec. 2). Q: What are the exceptions to the general rule that one who is not privy to a contract may not bring an action to enforce it? A: The exceptions are: 1. Stipulation pour atrui - If a contract should contain some stipulation in favor of a third person, he may demand its fulilment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient, The contracting parties must have Clearly and deliberately conferred a favor upon a third person (Civil Code, A. 1311) 2. Those who are not principally or subsidiarily obligated in a contract ma show the detriment that could result from it j.e., when contracts entered into in fraud of creditors may be rescinded when the creditors cannot collect the claims due them (Civil Code, Art. 1318). Q: Spouses X are the registered owners of a parcel of land. Y and Z are alleged to be the owners of Company A, which owns the lots adjacent to the property of Spouses X. Company A claimed that Spouses X were constructing a fence without a valid permit, and the construction would destroy the walll of, its building. To gather evidence, Company A set-up and installed two video surveillance cameras facing the property of Spouses X. Y and Z, as a defense, raised that they are not the owners of Company A and were wrongfully impleaded in this case. Are Y and Z’s contention correct? jo. The fact that Y and Z are not the registered ‘owners of the building does not automatically mean that they did not cause the installation of the video surveillance cameras. Although Company A has a juridical personality separate and distinct from its stockholders, records show that it is a PAGE 20 OF 157 family-owned corporation managed by the family of Y and Z. In these instances, the personalities of ‘Company A and Y and Z seem to merge. As such, Y and Z are merely using the corporate fiction of ‘Company A as a shield to protect themselves from the suit, Y and Z are, thus, proper parties to the suit. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013). Q; Who is an indispensable party? ‘A: A eal party-in-interest without whom NO FINAL DETERMINATION can be had of an action. They are those with such an interest in the contraversy that a final adjudication cannot be made, in his absence, without injuring or affecting that interest Q: What is the effect of the non-joinder of indispensable parties? ‘A: It is not a ground for automatic dismissal of complaint; hence, the court should order an amendment and impleading of the indispensable parties. The case would be dismissed if there is, refusal to comply with the directive of the court for the joinder of an indispensable party to the case (Contreras vs. Rovila Water Supply, G.R. No. 168979, 2013). @: Respondent is a domestic corporation engaged in providing manpower services to airline companies. The Union of Philippine Aircraft Loaders and Cargo Employees filed a petition for direct certification election before the Med-Arbiter to represent rank-and-file employees of Respondent assigned to Philippine Airlines (PAL) in NAIA, but Respondent countered that the employees are project-based, whose employment is for a fixed period of time and dependent upon its agreement with PAL. The Med-Arbiter granted the petition, while Respondent appealed. Meanwhile, Phil-Japan is another domestic corporation in the same position. Phil-Japan appealed to the CA but its petition was also denied. However, the CA reversed both decisions and nullified the same for being in conflict with the Labor Code. Then, the Secretary of Labor filed a review on certiorari. Can the Secretary of Labor file a petition for review pursuant to Rule 457ATENEO CENTRAL BAR OPERATIONS 2018 A (DEL CASTILLO): No. The Secretary of Labor is a nominal party because of her decision but she is not the real party-in-interest vested with personality to file the present petitions. A real Party-in-interest is the party who stands to be benefitted or injured by the judgment in the suit, or the party entitled to the avails of the suit, The real party-in-interest would have been the unions to appear and defend the ruling of the Secretary of Labor. Only real-parties-in-interest who Participated in the titigation of the case before the CA can avail of appeal by certiorari. (Republic of the Philippines v. Namboku Peak Inc., G.R. No. 169745, July 18, 2014) Q: What are the two tests to determine an indispensable party? A 1. Whether a relief be afforded to the plaintiff without the presence of the other party; and 2. Whether the case can be decided on its merits ‘without prejudicing the rights of the other party (Republic v. Sendiganbayan, G.R. No. 152154, 2003). Q: Who Is a necessary party? ‘A: Anecessary party is not an indispensable party. He is ought to be joined as a party if COMPLETE RELIEF is to be accorded as to those already parties; he should be joined whenever possible. Q: Is substitution of a party allowed? ‘A: Yes. In case of death of a litigant during the pendency of an action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs (Rule 3, Sec. 16). Q: Are alternative defendants allowed? ‘A: Yes. Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other (Rule 3, Sec. 13). REMEDIAL LAW Q: When is a party misjoined? ‘A: A party is MISJOINED when he is made a party to the action although he should not be impleaded (Rule 3, Section 11) joinder? Q: What is the remedy in case of in contract, in misjoinder of cause of action, the court can order severance (Rule 3, Section 11) What is the effect of the death of a party upon a pending action? A: The death of the client extinguishes the attorney-client relationship and divests a counsel of his authority to represent the client; neither does. he become the counsel of the heirs of the deceased unless said heirs engage his services. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and. to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased ‘may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs (Rule 3, Sec. 16). Q: Does unincorporated association have capacity to sue? ‘A: No, because an unincorporated association cannot be considered a juridical person or an entity authorized by law, thus it cannot be a party to a civil action (Association of Flood Victims vs. COMELEC, G.R. No. 2037755, 2014). PAGE 21 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW D. VENUE OF ACTIONS Q: Can the patties stipulate on the venue? A: Yes, Parties may stipulate on the venue, as long as itis agreed in writing before the filing of the action on the exclusive venue thereof (Rule 4, Sec. (0). Q: Compare venue and jurisdiction. Mere stipulation on the venue of an action, however, is not enough to preclude parties from Authority to hear and | Place where the case bringing a casc in other venues. The parties must Cee eae: ie to be heard or tied be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, A etanmatet, 1] Amatierf precede!) ing siputation should be doomed as mere an i oe a agreement on an additional forum, not as limiting enue fo the pected pave (Spe Lantinv Hon Establishes a relation | Establishes a relation oa Hi between the court and | between plaintiff and anion, G.R. No, 160053, 1992). the subject mater "| defendant, or ie Examples of qualifying or restrictive words: titioner and sa “exclusively” and “waiving for this purpose any en other venue,” “shall only" preceding the designation of venue, “to the exclusion of the other courts,” or words of similar import (Auction in Malinta, Inc. v. Luyaben, GR. No. 173979, 2007). Fixed by law and| May be conferred by cannot be conferred | the act or agreement by the parties of the parties (e.g. a contractual stipulation can contain the following: “In case of dispute arising from this contract, a party shall fle a suit exclusively with the Regional Trial Court of Pasig City’) (Nocum v. Tan, G.R. No, 145022, 2005) Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of Not a ground for a the municipality or city WHEREIN THE REAL PROPERTY involved, or a portion thereof, IS Q: What is the venue for real actions? ‘A: Actions affecting title to or possession of real Property, or interest therein, shall be commenced {and tried in the proper court which has jurisdiction over the area WHEREIN THE REAL PROPERTY INVOLVED, or a portion thereof, IS SITUATED (Rule 4, Sec. 1(1)). Lack of jurisdiction over the subject matter | iulu proprio dismissat is a ground for a motu (except in cases SITUATED, (Rule 4, Sec. 1(2)) proprio dismissal subject. to Summary Procedure) Real actions, as so opposed to personal actions, fare those which affect the title to or possession of Cannot be waived —_| May be waived only real property. Where a contrary claim to in civil cases. In ownership is made by an adverse party, and criminal cases, venue where the relief prayed for cannot be granted is jurisdictional without the court deciding on the merits, the issue (Nocum v. Tan, GR of ownership andiile, more specifically, as to who, No. 145022, 2008, between the contending parties, would have a Dacoyooy v. IAC, G.R. better right to the property, the case can only be No. 74864, 1991) but a real action (Gumabon v. Larin, G.R. No. 142523, 2001). PAGE 22 OF 187ATENEO CENTRAL BAR OPERATIONS 2018 Where a complaint is entitled as one for specific performance but nonetheless prays for the issuance of a deed of sale for a parcel of land, its primary objective and nature is one to recover the parcel of land itself and, thus, is deemed a real action. In such a case, the action must be filed in the proper court where the property is located (Gochan v. Gochan, G.R. No. 146089, 2001), ‘An action to recover the deficiency after ‘oxtrajudicial foreclosure of a real property ‘mortgage is a personal action because it does not affect title to or possession of real property, or any interest therein (BPI Family v. Yujuico, GR. 175796, 2015). Q: What is the venue for personal actions? A: All other actions may be commenced and tried WHERE PLAINTIFF RESIDED, OR WHERE. DEFENDANT RESIDES or any of the principal defendants resides, or in the case of a non- resident defendant WHEREVER HE MAY BE FOUND, at the election of the plaintiff (Rule 4, Sec. 2). ‘When there is more than one plaintiff ina personal action case, the residences of the principal parties should be the basis for determining proper venue. Eliminate the qualifying term “principal fin the Rules) and the purpose of the Rule would be defeated where a nominal or formal party is impleaded in the action since the latter would not have the degree of interest in the subject of the ‘action which would warrant and entail the desirably active participation expected of litigants in a case (Marcos-Araneta v. Cam, GR No. 154096, 2008). REMEDIAL LAW E, RULES ON PLEADINGS 4. Kinds of Pleadings Q: What are the kinds of pleadings? A: (CART) ‘Complaint Counterclaim Cross-claim Answer Reply (Rule 6) Third (fourth, etc. -party complaint) One one Q: What is a complaint? ‘A: A complaint is the pleading alleging the plaintiff's cause or causes of action, The names and residences of the plaintiff and defendant must, be stated in the complaint (Rule 6, Sec. 3). Q: What is an answer? ‘A: An answer is a pleading in which a defending party sets forth his defenses. It may be an answer to a complaint, a counterclaim or a cross-claim. (Rule 6, Sec. 4) Q: What is a counterclaim? ‘A: A counterciaim is any claim, which a defending party may have against an opposing party. When a defendant files a counterclaim against the plaintiff, fhe becomes the plaintiff in the counterclaim and the original plaintiff becomes the defendant. ‘A counterclaim may be COMPULSORY or PERMISSIVE. (Rule 6, Sec. 6) Q: What is a compulsory counterclaim? A: Elements: (ATAC) 1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party's claim; 2. It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; 3. The court has jurisdiction over the amount and nature of the case; and 4. It must be cognizable by the regular courts of Justice (Yulienco v. CA). PAGE 23 OF 157 NeeATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: May a compulsory counterclaim prosper after dismissal of complaint for lack of A: Yes. If the compulsory counterclaim is by reason of an unfounded suit then it may prosper even with the main complaint having been dismissed (Padilla vs Globe Asiatique, G.R. No. 207376, 2014). : When should compulsory counterclaim be filed? A: At the time for fing of answer. A claim for recovery of the excess in the bid price vis-a-vis the ‘amount due should be interposed as a compulsory counterclaim jn an action for recovery of a deficiency filed by the mortgagee against the debtor-mortgagor (MBTC vs CPR Promotions and Marketing, G.R. No. 200567, 2015). ‘What is a permissive counterclaim? A: A counterclaim is permissive if any of the elements of a compulsory counterclaim is absent (see above). The most commonly treated feature of a permissive counterciaim is iis absence of a logical connection with the subject matter of the ‘complaint. (International Container Terminal Services Inc. v. CA, G.R. No. 90530, 1992). ‘A permissive counterclaim does not necessarily arise out of or is not directly connected with the subject matter of the first claim; it can be filed as a separate case altogether. There is a need to pay for docket fees since itis seen as a different action altogether with defendants becoming “plaintiffs” in respect of such counterclaim (Reillo v. San Jose, GR. No. 166393, 2009). Q: Corporation A was one of Corporation B's distributors/dealers of its agricultural chemicals. However, Corp. B stopped delivering stocks to Corp. A after the latter failed to settle its unpaid accounts. As Corp. B’s authorized dealer, Corp. A enjoyed discounts and rebate. Corp. A, although aware of the deadline to pay its debts with Corp. B, withheld payment to compel Corp. B to reconcile its accounts. Accusing Corp. B of maliciously breaching the distributorship agreement by manipulating Corp. A's accounts, withholding discounts and rebates due it, charging unwarranted penalties, refusing to supply goods, and favoring the new distributors/dealers to drive il out of business, Corp. A filed a suit for damages against Corp. B. Corp. B filed an Answer with Counterclaim. ‘The RTC ruled that Corp. B’s Counterclaim was permissive and thus dismissed it for non- payment of docket fees. Was the court correct in dismissing the permissive counterclaim for non-payment of docket fees? A (DEL CASTILLO): NO. Corp. B's counterclaim is permissive. It may independently proceed in a separate action. Although the rights and obligations of the parties are anchored on the same coniiact, the cause of action they filed against each other are distinct and do not involve the same factual issues. The counterclaim for money is not intertwined with or contingent on Corp. A’s own ciaim on damages, which was based on the principle of abuse of rights. It is settled that although the payment of the prescribed docket fees is a jurisdictional requirement, its non- Payment should not result in the automatic dismissal of the cases provided the docket fees are paid within the applicable prescriptive period. Hence, the trial court should have instead ordered Corp. B to pay the required docket fees for the permissive counterclaim, giving it reasonable time but in no case beyond the reglementary period (Calibre Traders v. Bayer Philippines, G.R. No. 161431, October 13, 2010). Q: What is a cross-claim? st A: Across-claim is any claim by one party ag: a co-party arising out of the transaction or ‘occurrence that is the subject matter either of the original action or of a counterclaim therein. ‘Such cross-claim may include a ciaim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Rule 6, Sec. 8). PAGE 24 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Requirements: (CAP) 1. A claim by one party against a co-party; 2. Must arise out of the transaction or occurrence that is the subject matter either of the original action of of a counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party. (Rule 6, Sec. 8) Q: What is a reply? ‘A: Itis a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to file a reply (Rule 6, Sec. 10). is a third- (fourth, etc) party ‘X: A claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc:}party defendant, for contibution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Rule 6, Sec. 17) 2. Pleadings Allowed Under The Rules of Procedure for Small Claims and the Rule on Summary Procedure 3. Parts of a Pleading Q: What are the parts of a pleading? A: Caption and body. ‘The caption sets forth the following: 1. The name of the court; 2. The title of the action; and 3. The docket number, if assigned. ‘The body sets forth the following: 1. Its designat 2. The allegation of the party's claims and defenses; 3. The reliefs prayed for, and 4. The date of the pleading. (Rule 7) REMEDIAL LAW Q: What is the significance of a lawyer's signature? A: His signature constitutes a certification by him that (a) he has read the pleading, (b) that to the best of his knowledge and belief, there is good ground to support it, and (c) that its not interposed for delay (Rule 7, Sec. 3). What is the effect of an unsigned pleading? It has. NO LEGAL EFFECT. The court is authorized, however, to allow the pleader to correct the deficiency if the pleader shows, to the satisfaction of the court, that the failure to sign the pleading was due to the mere inadvertence and not to delay the proceedings (Rule 7, Sec. 3). Q: What are the actions of counsel that are subject to disciplinary measures? A 1. When he deli pleading 2. When he signs a pleading in violation of the Rules 3. When he alleges in the pleading scandalous. or indecent matter, or 4. When he fails to promptly report to the court a change of his address (Rule 7, Sec. 3). jerately files an unsigned Q: What is verification? ‘A: Itis an affidavit dectaring that: (a) the affiant has read the pleading, and (b) the allegations therein are true and correct of his personal knowiedge andlor based on authentic records (Rule 7, Sec. 4 as amended by AM No. 00-2-10). Generally, pleadings need not be verified EXCEPT only ‘when the law or a rule requires it (Rule 7, Sec. 4). Q; What is the significance of verification? it is meant to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct, not merely speculative (Sarmiento v. Zaratan, G.R. No. 167471, 2007). PAGE 25.OF 157ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW Q: What is Forum Shopping? A: It consists of fing multiple suits in differ courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same related causes andlor to grant the same or substantially the same relief. it exists ‘when the elements of litis pendentia are present or where a final judgment in one case will amount to 1€8 judicata in another. (Heirs of Sotto vs. Palicte, G.R. No. 159691, 2014) Q: What is the nature of a certification of non- forum shopping? A: ILis @ mandatory requirement and must be allached to the intiatory pleading. Failure to do so Constitutes a cause for dismissal without prejudice (Rule 7, Sec. 5) Q: How is the certification against forum shopping executed? A: It is executed by the PLAINTIFF or the PRINCIPAL PARTY under oath and must be signed by the party himself/herself and not merely by his attorney (Rule 7, Sec. 5). Q: X filed an ejectment complaint against Y before the MeTC. The MeTC and the RTC dismissed the case for lack of cause of action. Upon appeal to the CA, X's counsel requested an extension to file a petition for review. X’s. counsel claimed that X was not able to sign the certification against forum shopping due to commitments abroad. X's counsel was able to file the petition however the certification against forum shopping attached thereto was signed by the counsel and not X without any accompanying authority to do so. CA dismissed the case. Whether the petition should be dismissed due to the failure of X to sign the certification against forum shopping. A (DEL CASTILLO): The requirement that itis the petitioner, not her counsel, who should sign the certificate of non-forum shopping is due to the fact, that a “certification is a peculiar personal representation on the part of the principal party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action." However, if a petitioner is unable to sign a certification for reasonable or justifiable reasons, she must execute an SPA designating her counsel of record to sign on her behalf. “A certification which had been signed by counsel without the proper authorization is defective and constitutes a valid cause for the dismissal of the petition.” No sufficient and justifiable grounds exist in this case as to relax the rules on certification against forum shopping (Anderson v Ho, G.R. No. 172590, January 7, 2013) Q: What are the undertakings of a party under the certification against forum shopping? - 4, That the pary has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his/her knowledge, Ro such other action or claim is pending therein; 2. That if there is such other pending action or claim, a complete statement of the present status thereof; and 3. That ifhe/she should thereafter learn that the ‘same or similar action or ciaim has been filed or is pending, he/she shall report that fact within 5 days therefrom to the court wherein, his/her complaint or initiatory pleading was been filed (Rule 7, Sec. §). @: May an “office manager and resident interpreter” for 23 years sign the verification and certification without need of a board resolution? A: Yes. X can be considered as having knowledge of all matters in the office and is in a position to verify “the truthfulness and the correctness of the allegations in the Petition” (Fuji Television Network, Inc. v. Arlene S. Espintu, G.R. No. 204944-45, December 3, 2014). PAGE 26 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 4. Allegations in a Pleading Q: What are the contents of a pleading? ‘A: A pleading should only contain ULTIMATE FACTS, which are essential to a party's cause of, action or defense. It must be stated in a logical form and in a plain and concise manner (Sec. 1, Rule 8). Q: What are ultimate facts? ‘A: The ULTIMATE FACTS are the important and substantial facts which form the basis of the primary right of the plaintiff and which make up the wrongful act or omission of the defendant, If the ullimate facts are not alleged, the cause of action would be insufficient (Riano, Civil Procedure: A Restatement for the Bar, 2d ed., 2009). Q: How do you allege fraud or mistake? A: Fraud or mistake, the circumstances constituting such fraud or mistake must be stated with PARTICULARITY. How do you allege malice, intent, knowledge or other conditions of the mind of a person? A; Malice, intent, knowledge or other conditions of the mind of a person may be averred GENERALLY. (Rule 8, Sec. 5) : How do you allege an official document or act? AA; Ils sufficient to aver that the document or act was issued or done in compliance with law (Rule 8, Sec. 9). Q: How do you plead an actionable document? A: (SUB-OR-COP) (1) The substance of such document shall be set forth in the pleading; and the original or a copy shall be attached as an exhibit; or (2) Said copy may with lke effect be set forth in the pleading (Rule 8, Sec. 7). REMEDIAL LAW Q: What is the effect if the defendant fails to deny under oath? A (1) The genuineness and due execution of an actionable document is deemed admitted (Implied Admission) (Casent Realty Development Corp _—_v. _Philbanking Corporation, G.R. No. 150731, 2007). (2) The document need not be formally offered in evidence (Central Surety v. Hodges, G.R. No. L-28633, 1971). denial? : What is spot A: A specific denial is made by specifying each material allegation of fact, the truth of which the defendant does not admit and, whenever Practicable, setting forth the substance of the ‘matters upon which he relies to support his denial (UA vs. Wallem Philippines Shipping, Inc G.R. No. 171837, 2012). Q: What is the effect of failure to make a specific denial? A: General Rule: Allegations NOT specifically denied are deemed admitted (Rule 8, Sec. 11). Exceptions: (UC-COA) 1. Allegations as to the amount of unliquidated damages (Rule 8, Sec. 11); 2. Gonclusion of law; and 3. Allegations immaterial as to the cause of action @: When does a specific denial require an oath? A: (ADU) 1. Denial of an actionable document (Rule 8, Section) 2. Denial of allegations of usury in a complaint to recover usurious interest (Rule 8, Sec. 11) PAGE 27 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: What is a negative pregnant? ‘A: Where a fact is alleged with some qualifying or ‘modifying language, and the denial is conjunctive, a “negative pregnant’ exists, and only the qualification or modification is denied, while the fact itself is admitted (Galofa v. Nee Bon Sing GR. No. L-22018, 1968). 5. Effect of Failure to Plead Q: What is the general rule on the effect of failure to plead defenses or objections? A: Defenses and objections not pleaded either in ‘a motion to dismiss or in the answer are deemed waived (Rule 9, Sec. 1). Q: What are the exceptions? ‘A: However, there is no such waiver, and the Court shall DISMISS the claim if it appears from the pleadings or the evidence on record that there is: (LLRP) (a) Lack of jurisdiction over the subject matter (b) Litis pendentia (0) Res judicata (d) Brescription (Rule 9, Sec. 1) Q: What is the effect of the failure to plead a compulsory counterclaim and cross-claim? A General Rule: A compulsory counterclaim, or a cross-claim, not set up shall be barred (Rule 9, See. 2) Exception: Permissive counterclaim shall not be barred (International Container Terminal Services, Inc. v. CA, GR. No. 90530, 1992). REMEDIAL LAW 6. Default Q: What are the remedies against an order of dofault? A: Remedy after_notice_of_order_and_before judgment: File a motion under oath to set aside the ‘order of default and properly show that: (a) The failure to answer was due to fraud, accident, mistake, or excusable negligence (FAME); and (b) Meritorious defense (i.e. affidavit of merit) (Rule 9, Section 3 (b) of the Rules of Court) Remedy after judament and before it become final ‘and executory: File a motion for new trial under Rule 37 and/or appeal from the judgment as being contrary to law or evidence (Lina v. CA, G.R. No. 1-63397, 1985). Remedy after judament becomes _final_and executory: File a petition for relief from judgment under Rule 38. Grave abuse of discretion amounting to lack or excess of jurisdiction and no plain, speedy, and jequate remedy avail those improperh ‘declared in_defaull: Petition for Certiorari under Rule 65 Q: What is the effect of order of default? ‘A; The party in default loses his standing in court, but he is entilled to notices of subsequent proceedings (Rule 9, Sec. 3 (a)) The party may stil participate as a witness (Riano, Civil Procedure (The Bar Lecture Series) Volume 1, 2014), Q: What is the relief from an order of dofault? ‘A: A judgment rendered against a party in default shail: (EDU) (@) not exceed the amount or (b) be diferent in kind from that prayed for {6) nor award uniquidated damages (Rule 9, Sec 3). PAGE 28 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Whatis the effect of partial default? ‘A: When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the ‘others fail to do 50, the court shall try the case against all upon the answers thus fled and render judgment upon the evidence presented (Rule 9, Sec. 3(c)) : When is there no defaults allowed? (JAL) - (@) Judicial Dectaration of Nullty of Marriage (b) Annulment of marriages (c) Legal Separation (Rule 9, Sec. 3 (e)) 7. iling and Service of Pleadings Q: Whats filing? ‘A: The act of presenting the pleading or other papers to the CLERK OF COURT (Rule 13, Sec. 2). For the purpose of fling, the original must be presented personally to the clerk of court or by sending the same by registered mail (Rule 13, Sec. 3) Q: What is service? ‘A: The act of providing a party with a COPY of the pleading or paper concerned (Riano, p. 402). NOTE: Whenever practicable, the service and fling of pleadings and other papers shall be done personally, Except with respect to papers ‘emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally A violation of this Rule may be the cause to consider the paper as not fled (Rule 12, Sec. 11). Q: What papers are required to be filed with the Court and served upon the parties affected? (J- PRO®-WANDS) A 1. Judgments: 2. Pleadings subsequent to the complain; 3. Resolutions 4. Orders 5. Offers of judgment; 6. Written motion; 7. Appearances; 8 Notices: 9. Demands; 10. Similar papers (Rule 13, Sec. 4). Q; What are the papers required to be filed? : (PAM-NO-JA) Pleadings Appearances Motions Notices Orders dudgments Alvother papers (Rule 13, Sec. 3) NOORENaD Q: What are the papers required to be served to the adverse party? (POM-NO~Jo) Pleadings ‘Orders Motions Notices Judgments, Other papers (Rule 13, Sec. 5) O2RwNa> PAGE 29 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: An RTC decision rendered in favor of the Republic to expropriate the property of X the RTC rendered judgment in favor of the Republic condemning the subject property for the purpose of implementing the construction of the C-5 Northern Link Road Project Phase 2. The RTC likewise directed the Republic to pay respondents consequential damages equivalent to the value of the capital gains tax and other taxes necessary for the transfer of, the subject property in the Republic's name. The Republic moved for _ partial reconsideration, specifically on the issue relating to the payment of the capital gains tax, but the RTC denied the motion in its Order dated January 10, 2013 for having been belatedly filed. ts the RTC correct to deny such motion? ‘A: No. Section 3, Rule 13 of the Rules of Court provides thal if a pleading is fied by registered mail, the date of mailing shall be considered as the date of fling. It does not matter when the court actually receives the mailed pleading. In this case, the records show that the Republic fled its Motion for Partial Reconsideration before the RTC via registered mail on September 28, 2012. Although the trial court received the Republic's motion only ‘on October 5, 2012, it should have considered the pleading to have been filed on September 28, 2012, the date of its mailing, which is clearly within the reglementary period of 15 days to file said mation, counted from September 13, 2012, or the date of the Republic's receipt of the assailed Decision. Given these circumstances, we hold that the RTC erred in denying the Republic's Motion for Partial Reconsideration for having been filed out of time. (Republic v Sps. Senando G.R. No. 205428, June 7, 2017) G. AMENDMENT. @: How is an amendment made? A: Pleadings MAY be Amended By: (AS?C?) 1. Adding or striking out an allegation of a party; 2. Adding oF striking out the name of a party 3. Correcting a mistake in the name of a party: and 4. Correcting a mistake or inadequate allegation or description in any other respect. (Sec. 1, Rule 10) Q: When is amendment a matter of right? A: A party may amend his pleading ONCE as a matter of right. Subsequent amendments must be WITH LEAVE of court. Ht may be exercised at ANY time BEFORE a responsive pleading is SERVED. In the case of a reply it may be amended at any time within ten (10) days after it is SERVED (Rule 10, Sec. 2). Pleader has a right to amend his complaint before a responsive pleading is served even if it is to correct a jurisdictional defect. When Amendment is a Matter of Right: 1. A COMPLAINT may be amended before an answer is served (regardiess of whether a new cause of action or change in theory is introduced — thus, MAY be substantia), 2. An ANSWER may be amended before a reply is served upon the defendant; 3. AREPLY may be amended any time within ten (10) days after itis served; and 4. A-defect in the designation of the parties and other clearly clerical or typographical eors may be summarily corrected by the court at any stage Of the action, at is initiative or on motion, provided no prejudice is caused thereby to the adverse party (Rule 10, Sec. 4) Section 2 Rule 10 refers to an amendment made before the trial court and NOT to amendments before the Court of Appeals. The Court of Appeals, is vested with jurisdiction to admit or deny amended petitions filed before it (Navarro v. Vda De Taroma, G.R. No. 160214, 2005). Even if the motion to dismiss is granted by the court, the plaintiff may stil amend the complaint as PAGE 30 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW a matter of right before such dismissal becomes final. Before the filing of any responsive pleading, a party has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced. It is settled that a motion to dismiss is not the responsive pleading contemplated by the Rule (Bautista v. Maya-Maya, G.R. No. 148361, 2005) The plaintiff may amend his complaint once as a ‘matter of right, i. without leave of court, before: any responsive pleading is filed or served, Responsive pleadings are those which seek affirmative relief andlor set up defenses, like an answer. A motion to dismiss is not a responsive pleading for purposes of Section 2 of Rule 10 (Marcos-Araneta v. CA, G.R. No. 154096, 2008). Itis erroneous for a court to refuse an amendment ‘exercised as a matter of right and this error may be corrected by mandamus (Ong Peng v. Custodio, G.R. No. L-14911, 1961). Q: When is leave of court required in amendment? ‘A: 1. Ifthe amendment is substantial; and 2. Aresponsive pleading had already been served (Rule 10, Secs. 2-3). Q: When can the court refuse to allow amendments by leave of court? ‘A: Amendment by Leave of Court may NOT be Allowed When: 1. Cause of action, defense or theory of the case is changed; 2. Amendment is intended to confer jurisdiction to the court; 3. Amendment to cure a premature or non- ‘existing cause of action; and 4. Amendment for purposes of delay, After a responsive pleading has been served, a complaint cannot be amended to confer jurisdiction on the court in which itis fled, if the ‘cause of action originally set forth was not within the cours jurisdiction (Campos Rueda Corporation v. Bautista, G.R. No. L-18453, 1962). Q: What is a formal amendment? A: A defect in the designation of the parties and other clearly CLERICAL or TYPOGRAPHICAL errors may be summarily corrected by the court at ANY stage of the action, at its initiative or on motion, provided so prejudice is caused thereby to the adverse party (Rule 10, Sec. 4). When is amendment needed to conform to or authorize presentation of evidence applicable? ‘A: When Issues Not Raised by the Pleadings Are Tried with the Express or Implied Consent of the Parties 1. They shall be treated in all respects as if they had been raised in the pleadings. 2. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion of any party at any time, even after judgment 3. BUT failure to amend does NOT affect the result of the trial of these issues. I Evidence is Objected to at the Trial on the Ground That itis Not Within the Issues Made by the Pleadings 1. The court may allow the pleadings to be amended. 2. It shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be sub served thereby. 3. The court may grant a continuance to enable the amendment to be made (Rule 10, Sec. 5). This also covers situations where @ complaint insufficiently states the cause of action. Such insufficiency may be cured by evidence presented during the trial without objection. However, this is applicable only if a cause of action in fact exists at the time the complaint i fled, but the complaint is defective for failure to allege the essential facts (Swagman Hotels and Travel Inc., v. CA, G.R. No. 161135, 2008). PAGE 31 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the effect of an amended pleading? ‘A: An amended pleading supersedes the pleading that it amends. Under the Rules, pleadings superseded or amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized against the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. if not offered in evidence, the admission contained therein will not be considered (Ching v. CA, G.R. No. 110844, 2000). Admissions made inal pleadings are considered as EXTRAJUDICIAL admissions. However, admissions in superseded pleadings may be received in evidence against the pleader as long as they are formally offered in evidence (Rule 10, Sec. 8). Q: What is the procedure? ‘A: When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by the appropriate marks, shall be filed (Rule 10, Sec. 7) : What is substituted service? ‘A: Substituted service can only be made if personal service CANNOT be made within reasonable time for justifiable causes. (Rule 13, Sec. 8) Q: What are the circumstances for substituted service to be justified? A: For Substituted Service of Summons to be valid, the folowing MUST be demonstrated: (IE- SAD-CP) 4, Thal personal service of summons within a reasonable time was impossible; 2, That efforts were exerted to locate the party; and 3. That the summons was served upon a person of sufficient age and discretion residing at the party's residence or upon a competent person in charge of the party's office or regular place of business. (Macasaet vs. Francisco, GR. No. 156759, 2013) Wt is Tkewise required that the pertinent facts proving these circumstances be stated In the proof of service or in the officer's return (Sagana v. Francisco, G.R. No. 161952, 2009). Q: How is personal service done? ‘A: How Served (HT) 1. By handing a copy thereof to the defendant in person 2. If he/she refuses to receive and sign for it, summons will be tendered by server to defendant. (Section 6, Rule 13) @: What are the requirements for extra: territorial service? A: Involves a NON-RESIDENT defendant who CANNOT be found in the Philippines and the action against him is IN REM or QUASI IN REM. Exception: When service may be effected OUT of the Philippines (23 provided in extra-territorial service) for ANY ACTION involving residents who are TEMPORARILY out of the Philippines. (Rule 14, Sec. 16) PAGE 32 OF 157ATENEO CENTRAL, REMEDIAL LAW BAR OPERATIONS 2018 Q: Instances When Extra-territorial Service May be availed of A: (PLEA) 1. Actions that affect the personal status of the laintif; 2. Actions which relate to, or the subject matter of which is property within the Philippines, in which defendant claims a lien or interest, actual or contingent; 3. Actions in which the relief demanded consists, wholly or in part in excluding the defendant from ‘an interest in the propery located in the Philippines; and 4. When defendant's property has been attached in the Philippines. (Perkin Elmore vs. Dakila Trading, G.R. No. 172242, 2007) Q: Petitioners had actually received the ‘summonses served through their substitutes, ‘as borne out by their filing of several pleadings in the RTC, including their answer with compulsory counterclaim ad cautelam and a prestrial brief ad cautelam. They also availed of the modes of discovery. Can they insist on personal service? ‘A: No, their insistence was demonstrably superiuous. Such acts evinced their voluntary appearance in the action (Macasaet vs. Co, G.R. No. 156759, 2013) Q: When is summons by publication available in an action in personam? A: (DU-WU-RT) 1. Identity of the defendant is unknown 2. His whereabouts are unknown and cannot be ascertained by diligent inquiry: 3. He is a resident of the Philippines but is temporarily out of the country If he does not reside and is not found in the Philippines but the suit can be properly maintained. against him in the Philippines, it being in rem or quasi in rem, Service of summons shall be effected by Publication in a newspaper of general circulation land in such places and for such time as the court may order. (Santos vs. PNOC, G.R. No. 170943, 2008) In ANY suit against a resident of the Philippines temporarily absent from the country, the defendant may be served by SUBSTITUTED service because he still leaves a definite place of residence where he/she is bound to retum. (Rule 14, Sec.16) In addition, EXTRA-TERRITORIAL service [by personal service effected out of the Philippines OR by publication in a newspaper of general circulation in such places and for such time as the ‘court may order] MAY be resorted to WITH LEAVE OF COURT. (Riano, Civil Procedure: A Restatement for the Bar, 2d ed., 2009, p. 400) Summons by publication against a _NON- RESIDENT in an action IN PERSONAM is NOT a proper mode of service. Q: The Sandiganbayan issued summons on an amended complaint. The summons as to X was returned unserved because Y's family occupied the residence. The Republic then filed an ex parte motion for leave to serve summons by publication. Alias of summons were issued twice but both were returned unserved. The Republic then filed a motion to resolve, which was granted. X then filed a motion to lift order of default. Is the validity of the service of summons deemed mooted? A: Yes, under Section 1 of Rule 23, there are two instances when a defendant can take depositions. One is after jurisdiction has been acquired over the person of the defendant. In this case, X filed several motions, which sought various affirmative reliefs. By doing such, X was deemed to be submitting himself to the jurisdiction of the Sandiganbayan. Service of summons is not the only way to acquire jurisdiction over the person of the defendant. Another is through voluntary ‘appearance (Disini v. Sandiganbayan, G.R. No. 175730, May 7, 2010). PAGE 33.OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 Q: What are the requisites of proof of service? A: The following are the requisites and contents of valid proof of service (W-MPD-SN-S) 1, Made in writing by the server: 2. Shall set forth the manner, place, and date of service 3, Shall specify any papers which have been served with the process and the name of the person who received the same; and 4. Shall be sworn to when made by a person other than a sheriff or his deputy (Rule 14, Sec. 18). 1. MOTIONS Q: What is a motion? A: An application for relief other than by a pleading The rules that apply to pleadings shall also apply to written motions so far as concems caption designation, signature, and other matters of form (Rule 15, Sec. 10) Q: What is a motion ex parte? rt One that does not require a party to be heard and which the court may act upon without prejudice the rights of the other party This kind of motion is not covered by the hearing requirement under Section 2, Rule 15 of the Rules of Court, (Bautista vs. Judge Causapin, A.M. No, RTJ -07-2044, 2011) Examples: 1. Setting for pre-trial (Rule 18, Sec. 1) 2. Motion for extension of time (Bautista vs. Judge Causapin, A.M, No. RTJ -07-2044, 2011) REMEDIAL LAW Q: What is a litigated motion? ‘A: One which requires the parties to be heard before ruling on the motion can he made by the court (Riano, p. 368) Examples 1. Motion to Dismiss (Rule 16) 2. Motion for Judgment on Pleadings (Rule 34) 3, Summary Judgment (Rule 35) Q: What is a special motion? A: A motion addressed to the discretion of the court (Black's Law Dictionary) Q: What is omnibus motion? A The OMNIBUS MOTION RULE is a procedural principle which requires that every motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived (Rule 15, Sec. 8). Q: What is a motion for bill of particulars? A; It is a motion which seeks to clarify matters in the complaint which are vague, ambiguous, or not averred with sufficient definiteness. It applies to ANY PLEADING which in the perception of the movant contains ambiguous: allegations. (Rule 1, Sec. 12, Virata vs. Sandiganbayan, G.R. No. 106527, 1993) PAGE 34 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: What are the grounds for a motion to dismiss? (JV-L?-BaCa-ExUC) A 1. Absence of jurisdiction over a) Person of the defending party OR b) Subject matter of the claim 2. Venue is improperly laid 3. Plaintif has no legal capacity to sue 4, Another action is pending between the same parties for the same cause (Litis Pendentia) 5. Cause of action is barred by a) A prior judgment (Res Judicata) OR ) The statute of imitations (Prescription) 6. No cause of action stated in pleading asserting the claim (Failure to state cause of action) 7.Payment, waiver, abandonment, or extinguishment of claim or demand set forth in the plaints pleading 8. Unenforceable (under the provisions of the Statute of Frauds) claim under which the action is founded ‘9. Non-compliance with a condition precedent for filing the claim (Rule 15, Sec. 1) Itis subject to the OMNIBUS MOTION RULE. Any objection available at the time of fing of the pleading NOT raised will be DEEMED WAIVED. Q: X raised the ground of defective verification and certification of forum shopping only when, they filed their second motion to dismiss, despite the fact this ground was existent and available to them at the time of the filing of their first motion to dismiss. Is this ground waived? A (DEL CASTILLO): Yes, absent any justifiable reason to explain this fatal omission, the ground of defective verification and certification of forum shopping was deemed waived and could no longer be questioned by the petitioners in their second ‘motion to dismiss (De Guzman vs. Ochoa, G.R. No. 169292, April 13, 2011) Q; What are the 3 courses of action of the court, for the resolution of the motion? DDA) 1. Dismiss the action or claim 2. Deny the motion 3. Order the amendment of the pleading, Court shall NOT defer the resolution of the motion for the reason that the ground relied upon is not indubitable. The resolution shall state clearly and distinctly the reasons therefor in every case. (Rule 15, Sec. 3) Q: What are the remedies of the plaintiff when the complaint is dismissed? ‘A: (RAP) 1. Re-file complaint if ground for dismissal does NOT bar refing 2. Appeal from order of dismissal if ground for dismissal is one which BARS refiling of complaint such as: (RPES) a) Res juicata ) Brescription ©) Extinguishment of obigation 4) Violation ofthe Statue of Frauds (Rule 16, Sec. §) 3. Retition for Certiorari if court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice. (Strongworld Construction vs. Perelfo, G.R. No. 148026, 2006) PAGE 35 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: When do you file a motion to dismiss? State the general rule and the exceptions. ‘A: General Rule: A motion to dismiss is fled within the time for filing the answer but BEFORE filing said answer. If @ motion to dismiss is filed AFTER the answer has been filed, itis to be considered filed OUT OF TIME and the defending party is ‘estopped from filing the motion to dismiss Exceptions: (LLRP) ‘A Motion to Dismiss MAY be Filed AFTER the Filing of an Answer or at any time during the proceedings: 1. If the ground raised is lack of jurisdiction over the subject matter, 2. if itis alleged that there is another action pending between the same parties for the same cause or litis pendentia; 3. If the ground filed is that the action is barred by prior judgment; or 4. If the action is barred by the statute of limitations (Riano, Civil Procedure Volume 1, 477, 2014), Q: What are the instances when a complaint can no longer be re-filed after the court grants ‘a motion to dismiss? A: (RPES) 1. Cause of action barred by prior judgment or res judicata; 2. Claim or demand has been paid, waived, abandoned, or extinguished 3. Cause of action barred by statute of limitations, 4. Claim is unenforceable under the Statute of Frauds (Rule 16, Sec. 5). Q: Is the defense of lack of jurisdiction over the Person of a party one of the defenses which are not deemed waived under Section 1 of Rule 9? ‘A: No. Such defense must be invoked when an answer or a motion to dismiss is filed in order to prevent a waiver of the defense (Boston Equity Resources, inc. v. CA, GR. No. 173946, 2013). @: Is the ground of non-compliance with condition precedent deemed waived if not raised in motion to dismiss or answer? A: Yes. The rule is that defenses and objections, ‘not pleaded either in a motion to dismiss or in the answer are deemed waived. Since the heirs of X did not raise the defense of non-compliance with Att 151 of the Family Code as a ground to dismiss. the complaint to annul the Deed of Donation, such was deemed waived (Heirs of Favis v. Gonzales, 2014), Q: Is a preliminary hearing on affirmative defense raised in the answer necessary when affirmative defense is failure to state a cause of action? ‘A: No. When the motion is based on the ground of insufficiency of the cause of action which must be determined on the basis only of the facts alleged in the complaint and no other (Aquino vs. Quiazon, GR. No. 201248, 2015) @: When can prescription be a ground for motion to dismiss? A: An allegation of prescription can effectively be used in a motion to dismiss only when the ‘complaint on its face shows that indeed the action has already prescribed. If the issue of prescription is one involving evidentiary matters requiring a ful- blown trial on the merits, it cannot be determined in.a motion to dismiss (Sanchez v. Sanchez, G.R. No, 187661, 2013) Q: The RTC rendered a Decision in favor of X. Thereafter, a writ of execution was issued by the trial court. Thereafter, the Branch Sheriff conducted a public bidding and auction sale property covered by T ing which X was the highest bidder. Consequently, @ cettificate of sale was executed in her favor on. even date and was annotated at the back of the TCT. Thereafter, the taxes due on the sale of the subject property were paid. X filed a motion for the issuance of an order directing the sheriff to execute the final certificate of sale in her favor. Y opposed on the twin grounds that the subject motion was not accompanied by a notice of hearing and that the trial court's Decision can no longer be PAGE 36 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW executed as it is barred by prescription. The trial court granted the motion. Y moved for reconsideration which was denied. Y thereafter ‘sought review via certiorari before the CA. The CA denied the petition saying that the motion is non-litigious so the three-day notice rule does not apply. Was the CA correct? ‘A (DEL CASTILLO): Yes, The CA correctly ruled that the subject motion is a non-itigious motion, While, as a general rule, all written motions should be set for hearing under Section 4, Rule 15 of the Rules of Court, excepted from this rule are non- litigious motions or motions which may be acted upon by the court without prejudicing the rights of the adverse party. As already discussed, respondent is entitled to the issuance of the final certificate of sale as a matter of right and petitioner is powerless to oppose the same. Hence, the subject motion falls under the class of nor-iitigious motions. (Jose delos Reyes v. Josephine Ramnani, G.R. No. 169135, June 18, 2010) ISMISSAL OF ACTIONS: Q: When will the case be dismissed motu propio or on motion due to the fault of the plaintiff? (Rule 17, Sec. 3) ‘A: When, iffor no justifiable cause, plaintiff FAILS to: 1. Appear on the date of presentation of his evidence in chief; 2, Prosecute his action for an unreasonable length of time; 3. Comply with the Rules of Court; 4. Comply with any order of the Court; or 5. Appear at pre-trial Q: What is the effect of dismissal upon motion of the plaintiff on existing counterclaims? ‘A: The dismissal of the complaint does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. The dismissal of the complaint is without prejudice to the right of the defendants to prosecute the counterclaim. (Pinga v. Santiago, G.R. No. 170354, 2006). PRI RIAL Q: What are the purposes of pre-trial? A: Toallow the court to consider: 1. The possibilty of an amicable settlement or of a submission to altemative modes of dispute resolution; 2. The simplification of the issues; 3. The necessity or desirability of amendments to the pleadings; 4. The possibilty of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof: 5. The advisability of a preliminary reference of issues to a commissioner; 6. The propriety of rendering judgment on the pleadings, or summary judgment, or dismissing the action should a valid ground exist; 7. The advisability or necessity of suspending the proceedings; and 8. Such other matters as may aid in the prompt. disposition of the action (Rule 18, Sec. 2) Q: What are the effects of non-appearance in Pre-trial? (Rule 18, Sec. 5) ‘A: Ifthe plaintif fails to appear, this shali be cause for dismissal of the action which is with prejudice unless otherwise ordered by the court. If the defendant fails to appear, it shall be. cause to allow the plaintiff to present his ‘evidence ex parte and the court to render the judgement on the basis thereof PAGE 37 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW TL. INTERVENTION Q: What are the requisites for intervention? A 1. Motion for intervention fled BEFORE rendition ‘of judgment. (Sec. 2) 2. Movant must show in histher motion that he/she has legal interest in the matter in tigation, in the sucvess of ether of the partes in the action, or against both parties. (Sec. 1) 3, Movant must show that he/she is situated as to be adversely affected by a distribution or other disposition of property in the custody of the court 4, Intervention must not unduly delay or prejudice the adjudication of rights of the original parties. 5. Intervenor’s rights may not be fully protected in a seperate proceeding, (Mactan Cebu vs. Heirs of Mioze, G.R. No. 186045, 2011) M, SUBPOENA Q; What is subpoena ad testificandum? A: Process directed to a person requiring him to attend and to testify at the hearing or for the taking of his deposition (Rule 21. Sec. 1). Q: When can subpoena duces tecum and ad testificandum be quashed? A: Subpoena duces tecum may be quashed upon motion promptly made at or before the time ‘specified therein: 1. Ifitis unreasonable and oppressive 2. The relevancy of the books, documents, or things does not appear 3. If the person in whose behalf the subpoena is issued falls to advance the reasonable cost of the production thereof 4, That the witnesses’ fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Rule 21, Sec. 4) ‘Subpoena ad testificandum may be quashed when: 1. It is shown that the witness is not bound thereby 2. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Rule 21, Sec. 4). ‘COMPUTATION OF TIME Q: What is the correct rule on the computation of time according to AM. 00-2-14-SC? ‘A: When the due date falls on a Saturday, Sunday, or legal holiday, in which case, the filing of the said pleading on the next working days is deemed on time, Any extension of time to file the required pleading should be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday, or legal holiday (Reinier Pacific International vs. Guevarra, G.R. No, 457020, 2013). N, MODES OF DISCOVERY Q: What is a deposition? ‘A: Taking of the testimony of any person, whether he/she be a party or not, but at the instance of a party to the action. This testimony is taken out of court and it may either be an oral examination or a written interrogatory (Rule 23, Sec. 1). Q: When is leave of court necessary in taking depositions pending appeal? A 1. After jurisdiction has been obtained over ‘any defendant or over the property which |s the subject of the action but BEFORE an answer has been filed 2. Deposition of a person confined in prison (Rule 24, Sec. 15). Q: What are the uses of deposition (under Sec. 4, Rule 23)? (CIAW-D-100-AS-S-£) For the purpose of contradicting or impeaching the testimony of the deponent as witness by any party 2, Ifthe deponent is a party or anyone who was at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association Which is @ party, hisIher deposition can be used by an adverse party for any purpose. PAGE 38 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 3. Ifthe deponent is a witness, whether or not a party to the case, his/her deposition may be Used by any party for any purpose ifthe court finds that a. The witness is dead; or b. The witness resides at a distance more tran one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines (UNLESS it” appears that his/her absence was procured by the party offering the deposition}; or ¢. The witness is unable to attend or testy because of age, sickness, infirmity or imprisonment; or 4. The party offering the deposition has been tunable to procure the attendance of the witness by subpoena; or . Upon application and notice, that such exceptional circumstances exist as to make it desirable, inthe interest of justice to allow the deposition to be used (Rule 23, Sec. 4) @: What is production or inspection of documents or things? ‘A: Upon motion of any party showing good cause therefor, the court in which an action is pending may: 1. order any party to produce and permit the inspection and copying or photographing, by (or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, or 2. order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or Photographing the property or any designated relevant object or operation thereon, The order shall specify the time, place and manner cof making the inspection and taking copies and Photographs, and may prescribe such terms and conditions as are just (Rule 27, Sec. 1) REMEDIAL LAW Q: What are the limitations on production or inspection of documents or things? A; (NPR) May be any matter not privileged and which is relevant to the subject of the pending action, inciuding: (CD-BD-IL) 1. Claim or defense of any other party; 2. Existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and 3, Identity and location of persons having knowledge of relevant facts. In civil cases, a person may not use the right against setfincrimination as an objection to make 2 deposition. Only when an incriminating question is asked can a person invoke the right. (Rosete v. Lim, G.R. No, 136051, 2006) Q: What are written interrogatories to adverse parties? ‘A: Its purpose is to elicit material and relevant facts from any adverse party, which may amount to admission, Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Since the caling party is deemed bound by the adverse party's testimony, and in view of failure to avail of written interrogatories, compelling the adverse party to take the witness stand may result in the calling party damaging its own case (Sps. Alulugencia v. Metrobank, G.R. No. 185145, 2014) PAGE 39 OF 157)ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When can 2 physical and mental examination of a person be ordered? ‘A: When the mental or physical condition of a arty is in controversy, the court, UPON MOTION, FOR GOOD CAUSE SHOWN, may order the party to submit to a physical or mental examination by physician, The party examined MAY request the party causing the examination to be made to deliver to him a copy of a detailed report of the examining physician (Rule 28, Sec. 1-3) Q: What are the consequences of refusal to answer any question upon oral examination? 4. The proponent may apply for a court order to compel an answer: a. If the motion is GRANTED — the court shall require the refusing party to answer. if the refusal to answer was without SUBSTANTIAL JUSTIFICATION, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attomey's fees. b. If the motion is DENIED — and the court finds that it was filed WITHOUT SUBSTANTIAL JUSTIFICATION, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees 2. Mf despite the court order, the party or deponent stil refuses to answer, the refusal may be considered contempt of that court or the court may make such order as are just under Section 3, Rule 29 of the Rules of Court (Rule 29, Sec. 1) Q: What are the consequences of refusal to produce document or thing for inspection, copying or to submit to physical or mental examination? ‘A: The court may make such orders in regard to the refusal as are just, and among others, also Issue the following: 1. An order that the matters regarding which the questions were asked shall be TAKEN TO BE. ESTABLISHED for the purposes of the action in accordance with the claim of the party obtaining the order. 2. Anorder ‘a. Prohibiting the disobedient party to support or oppose claims or defenses, or Prohibiting such disobedient party from introducing in evidence designated documents or things or items of testimony. 3. Anorder 2. Striking out pleadings or parts thereof, or b. Staying further proceedings until the order is obeyed, ©. Dismissing the action or proceeding or any part thereof, or ¢. Rendering a judgment by default against the disobedient party. 4. Inaddition to any of the above orders, an order directing the arrest of any party or agent of a party for disobeying any of such orders (Rule 29, Sec. 3). ‘Q: What are the consequences of refusal to request for admission by adverse party? : If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact serves ‘a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him/her the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought Were of no substantial importance, such order shall be issued (Rule 29, Sec. 4). PAGE 40 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: X is the registered owner of a lot located in Roxas City. In 1991, Foundation Y took possession and occupancy of said lot by virtue of a memorandum of agreement entered into by and between it and the City of Roxas. The possession and occupancy of said land is in the character of being lessee thereof. In February and March 2003, X served notices upon the Foundation ¥ to vacate the premises. of said land. Foundation Y did not heed such notices because it still has the legal right to continue its possession and occupancy of said land. In 2003, X filed a Complaint for Unlawful Detainer against the Foundation Y before the MTCC of Roxas City. Was the court limited in interpreting a single phrase/ allegation in the ‘complaint in determining if there is a case of unlawful detainer? Was there an unlawful detainer in this case? ‘A (DEL CASTILLO): No. A judicial admission is ‘one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with ‘some rules of practice necessary to be observed and complied with. The facts alleged in the complaint are deemed admissions of the plaintiff and binding upon him. In this case, X judicially admitted that Foundation Y took control and Possession of subject property without their ‘consent and authority and that respondent's use of the land was without any contractual or legal basis, Nature of the action is determined by the judicial admissions in the Complaint. In this case, the allegations in the Complaint establish a cause of faction for forcible entry, and not for unlawful detainer. X's Complaint maintained that the Foundation Y took possession and control of the subject property without any contractual or legal basis. Assuming that these allegations are true, it hence follows that Foundation Y's possession was illegal from the very beginning. Therefore, the foundation of X's complaint is one for forcible entry. Thus, and as correctly found by the CA, there can be no tolerance as X alleged Foundation Y possession was illegal at the inception. Since the deprivation of physical possession was attended by strategy and force, the proper remedy was to file a Complaint for Forcible Entry and not the instant suit for untawful detainer. (Spouses ‘Manuel and Florentina Del Rosario v. Gerry Roxas Foundation, Inc., G.R. No. 170575, June 08, 2011) REMEDIAL LAW (0. TRIAL Q: What is the effect of parties agreeing to submit the case for judgment based on the facts agreed upon? A: A trial need not be conducted because evidence would no longer be presented. But if the Parties agree only to some facts in issue, trial will be held as to the disputed facts (Rule 30, Sec. 6). Q: What is the justification for consolidation? AA: It is to prevent a judge from deciding identical issues presented in the case assigned to him in a ‘manner that will prejudice another judge from deciding a similar case before him. The rigid policy is to [consolidate] all cases and proceedings resting on the same set of facts, or involving identical claims or interests or parties mandatory. [This] should be made regardless of whether or not the parties or any of them requests it. A mandatory policy eliminates conflicting results concerning similar or like issues between the same parties or interests even as it enhances the administration of justice (Re: Letter Complaint Of Merita B. Faviana, A.M, No. CA-13-51-J, 2013). P. DEMURRER TO EVIDENCE Q: Compare demurrer to evidence in a ci case and in a criminal case. CT mer Creed Filed with or without leave of court (Rule 119, Sec. 23) Leave of court is not required before filing Not appealable (will violate the right against double jeopardy) If demurrer is granted, the order of dismissal is appeatable (Rule 33 Sec. 1) if demurrer is denied, | Accused may adduce the defendant may | his evidence only ifthe demurrer is filed with proceed to present evidence (Rule 33] leave of court (Rule Sec. 1) 119, Sec. 23) PAGE 41 0F 157:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW | motu} Court may | motu | proprio do so Court cannot proprio demurrer make Q: What are the effects of granting the demurrer to evidence? A 1. The case shall be dismissed (Rule 33, Sec. 1. Republic v. Tuvera, §16 SCRA 113, 2007). 2. The appellate court, reversing the order granting the demurrer, should render judgment on the basis of the evidence submitted by plaintiff. Itis, not correct to remand the case to the trial court, (Villanueva Transit v. Javellana, 33 SCRA 755, 1930) 3. The appellate court, reversing the order of denial by the court, should render judgement on the basis of the evidence submitted by the plaintiff. A remand is not only frowned upon by the Rules, but is also logically unnecessary on the basis of the facts on record (Rediowealth Finance Corporation v. Del Rosario, 335 SCRA 288, 2000). 4. If reversed on appeal, the defendant loses his right to present evidence (Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc., 465 SCRA 117, 2005). Q: X, Vice Mayor of T City, was charged with violation of Sec. 89 of PD 1445 before the Sandiganbayan for having obtained cash advances which he received by reason of his office. After the prosecution filed its formal offer of evidence and rested their case, X filed his demurrer to evidence. The Sandiganbayan granted the demurrer to evidence because the testimony of the lone witness of the prosecution that X had already liquidated the cash advances proved that the element of “Damage” was lacking in the case. Did the Sandiganbayan act with grave abuse of discretion amounting to lack or excess of jurisdiction in giving due course to and eventually granting the demurrer to evidence? ‘A: No, the Sandiganbayan did not act with GADALE\. In the case at bar, the Sandiganbayan granted the demurrer to evidence on the ground that the prosecution failed to prove that the government suffered any damage from private respondent's norliquidation of the subject cash advance because it was later shown that private respondent liquidated the same albeit belatedly. Contrary to the findings of the Sandiganbayan, actual damage to the government arising from the rnon-lquidation of the cash advance is not an essential element of the offense. The gravamen of the offense is the mere failure to timely liquidate the cash advance since the law seeks to compel the accountable officer to promptly render an account of the funds which he has received by reason of his office. (People v. Sandiganbayan and Manuel Barcenas, G.R. 174504, March 21, 2011) Q: When does a defendant lose his right to present evidence? A: If the defendant's motion is granted, and the order Is subsequently reversed on appeal, the movant loses his right to present evidence (Consolidated Bank and Trust Corporation v. Del ‘Monte Motor Works, Inc., 465 SCRA 117, 2005). Q: What is the ground for granting a demurrer to evidence? A: Upon the facts and the law, the plaintiff has shown no right to relief (Rule 33, Sec. 1). 'Q. JUDGMENTS AND FINAL ORDERS Q: What are the contents of 2 judgment? A: 1. Opinion of the court (findings of fact and conclusions of law) ~ Ratio Decidendi, 2. Disposition of the case (dispositive portion) - Fallo; 3. Signature of the judge. When there is a conflict between the dispositive portion and the body of the decision, the FALLO control (Florentino v. Rivera, G.R. No. 167968, 2006). PAGE 42 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark and is especially prejudicial to the losing party who is unable to point the assigned error in seeking a reviow by a higher tribunal (Shimizu Philippines Contractors, Inc. v. Magsalin, G.R. No. 170026, 2012). Q: What is a memorandum decision? ‘A: The judgment or final resolution of he appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court (Solid Homes v. Lasema, G.R. No. 166051, 2008) Q: What are the elements of res judicata? A: (EMCI) 4. Former judgment or order must be final 2. The judgment or order must be on the merits 3. It must have been rendered by a court having jurisdiction over the subject matter and the parties 4, There must be, between the first and second action, identity of parties, of subject matter, and causes of action (Sps. Mendiola v. CA, G.R No. 159746, 2012) : When is there a bar by prior judgment? ‘A: When there is identity of (PSC) 4. Parties 2. Subject matter 3. Causes of action (Spouses Ocampo v. Heirs of Dionisio, G.R. No. 191101, 2014) Q: When is there identity of parties? ‘A: There is identity of parties not only when the Parties in the case are the same, but also between those in privity with them, such as between their successors-in-interest (Quintos v. Nicolas, G.R. No. 210252, 2014) Q: What is the test to determine identity of causes of action? ‘A: Whether the same evidence will sustain the actions, or whether there is an identity in the facts essential to the maintenance of the actions (Sps. Mendiola v. CA, G.RNo. 159746, 2012). Q: When is there conclusiveness of judgment? : Where there is identity of parties in the first and second cases but no identity of causes of action, Res judicata only applies if there is identity of ‘causes of action. Thus, if the first cause of action involves the entitlement to the de facto possession of the property based on breach of contract it will not bar a subsequent ejectment complaint raising a different cause of action such as recovery of de facto possession grounded on tolerance (De Leon v. Dela Liana, GR. No. 212277, 2014). Q: When is a counterclaim for partition not barred by prior judgment? ‘A: When there is no actual adjudication of ‘ownership of shares yet. Art. 494 of the Civil Code is an exception to Sec. 3, Rule 17 in that even if the order of dismissal for failure to prosecute is silent on whether or not itis with prejudice, it will be deemed to be without prejudice. The rights granted to co-owners under Art. 494 should prevail. But there can stil be rés judicata once the respective shares of the co-owners have been determined with finality or if the court determines that partition is improper (such as when co- ‘ownership does not or no longer exists) (Quintos v. Nicolas, G.R. No. 210252, 2014). @: When is judgment on the pleadings allowed? ‘A: Where an answer FAILS TO TENDER AN ISSUE, or otherwise ADMITS THE MATERIAL ALLEGATIONS of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions, for declaration of nullity or annulment of marriage for legal separation, the material facts alleged in the complaint shall always be proved. (Rule 34, Sec. 1). PAGE 43. OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: X filed a judicial separation of property against his wife, Y. X suggested a separation of conjugal property but ¥ refused and denied that the property in question is her paraphernal property. X filed a request for admission of the genuineness of the certified true copies of the complaint. Y failed to file her answer or response for this request. X filed a motion for judgement on the pleadings. Is a Motion for Judgment on the pleadings the proper remedy? A (DEL CASTILLO): No. Judgment on the pleadings is proper where an answer fails to tender an issue, or otherwise admits the material allegations of ‘the adverse party's pleading Summary judgment, on the other hand, will be granied if the pleadings, supporting affidavi depositions, and admissions on file, show that, except as to the amount of damages, there is NO GENUINE ISSUE as to any material fact and that the moving party is entitled to a judgment as a matter of law. Here, there exists an ostensible issue in the pleadings. Y merely failed to tender an issue when she was not able to answer. (Adolfo v. Adolfo, 6.R. No, 201427, March 18, 2018). Q: What is summary judgment? When is it proper? What are the bases of summary judgment? A: ‘The two types of summary judgment are: Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or ‘cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Rule 38, Sec. 1). ‘Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross- claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Rule 36, Sec. 2). Q: What is the rule when the case Is not fully adjudicated on motion? ‘A: If on motion under this Rule, judgment is not rendered upon the whole case or forall the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is notin controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, ‘and the trial shall be conducted on the controverted facts accordingly (Rule 38, Sec. 4). Q; What is the rule on affidavits and attachments? ‘A: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein, Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Rule 35, Sec. 5). NOTE: Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the ‘amount of the reasonable expenses which the filing of the affidavits caused him to incur including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt (Rule 35, Sec. 6) PAGE 44 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Whatis the difference between judgment on the pleadings and summary judgments? ST LU cad recur A parly seeking to recover upon a claim, counterclaim, or cross- claim or to obtain a dectaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Rule 35, Sec. 1) Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may; on motion of that party, direct judgment fon such pleading, However, in actions for dectaration of nulity or annulment of marriage or for legal separation, the material facts alleged inthe complaint shall always be proved (Rule 34, Sec. 1) oR A party against whom a claim, counterctaim, or cross-claim is asserted ora dectaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Rule 35, Sec. 2). Q: What is rendition of judgment? ‘A: The filing of the signed decision with the clerk of court (Riano, 2014, p. 583). NOTE: It is not the writing or signing of the judgment which constitutes rendition of the judgment. (Castro v. Malazo, 99 SCRA 164, 1980). ‘A__case is deemed SUBMITTED FOR RESOLUTION upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court (Riano, p. 609; Philippine Constitution, Art. Vill, Sec. 15). Even if the judgment has already been put in writing and signed, it is STILL subject to amendment if it has not yet been filed with the Clerk of Court (Riano, p. 529, Ago v. Court of Appeals, 6 SCRA 530, 535). ‘A judgment is considered RENDERED upon the FILING of the signed decision with the Clerk of Court. (Ago v. Court of Appeals, 6 SCRA 530, 536). This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule, Q: What is promulgation? ‘A: The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled vith notice to the parties or their counsel (Baldado v. Mejica, A.C, No. 9120, 2013). Q: Can the SC decide a case on the merits even if main case was already closed and terminated for being moot and academic? A: Yes. In a case, not to reverse the decision of the CA would prejudice X because it would allow Y to claim possession despite the fact that the contract, on which it based its right has long since expired (Pasig Printing vs Rockland Construction, GR. No. 193592, 2014). PAGE 45 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: What are exceptions to immutability of judgment? ‘A: The doctrine of immutability of judgment has. not been absolute. Some of the exceptions are the (VUNC) judgments b. Whenever circumstances transpire after the finality of the decision that render its execution unjust and inequitable cc. Nunc pro tung entries that cause no prejudice to any party d. Correction of clerical errors (University of the Philippines vs Dizon, G.R. No. 171182, 2012) ‘A supervening event is an exception to the execution as a matter of right of a final and immutable judgment rule, only if t directly affects the matter already litigated and settled, or substantially changes the rights or relations of the parties therein as to render the execution unjust, impossible or inequitable. The supervening event ‘cannot rest on unproved or uncertain facts (Abrigo v.Flores, G.R. No. 160786, 2014). The interested party may properly seek the stay of execution or the quashal of the writ of execution, or he may move the court to modify or alter the judgment in order to harmonize it with justice and the supervening event (Abrigo vs Flores, G.R. No. 160786, 2013). REMEDIAL LAW R. POST-JUDGMENT REMEDIES: @: What are the grounds for a motion for reconsideration? (DED) A 1. Damages awarded are excessive; 2. Evidence is insufficient to justly the decision or final order; and 3. Decision or final order is contrary to taw (Rule 37, Seo. 1). Q: What are the grounds for a motion for new trial? (FAME & NDE) A: A motion for new trial may be filed upon any towing grounds: 1. Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or 2. Newly discovered evidence, which he could not, with reasonable diligence, _ have discovered and produced at the trial, and which if presented would probably alter the result (Rule 37, Sec. 1) NOTE: A new trial can be granted only 1. On motion of the accused: or 2. On motion of the court but with the consent of the accused (Rule 121, Sec. 1). Q: What are the requisites of newly discovered evidence? A: 1, New evidence discovered after trial 2. It could not have been previously discovered ‘and produced atthe trial even with reasonable diligence 3. Itis new and material evidence 4. If introduced and admitted, it would probably change judgment (Ybiernas vs. Tanco- Gabaldon, G.R.178925, 2011). PAGE 46 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW NOTE: Newly discovered evidence need not be newly created evidence. it may and does ‘commonly refer to evidence already in existence prior or during trial, but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant (Tumang v CA, G.R. Nos. 8234647, 1989) Q: What is an appeal? A: While an appeal in a criminal case throws the case wide open for review, in civil cases itis limited to the errors and grounds raised in the appeal. (People v. Bagamano, G.R. No. 222658, 2016). Q: What are the ba jelines regarding appeal? he right to appeal is not a natural or inherent right; it is not a part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with law (Potinsan v, People, G.R. No. 161827, 2008). \: What matters are appealable? ‘A: An appeal may be taken only from judgments r final orders that completely dispose of the case (Bergomia v. CA,G.R. No. 189151, 2012) Q: What matters are not appealable? A: (RID-CES-WP) 1. An order denying a petition for Relief or any simitar motion seeking relief from judgment; 2. An Interlocutory order; 3. An order disallowing or Dismissing an appeal; 4. An order denying a motion to set aside a judgment by Consent, confession or ‘compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. An order of Execution; 6. A judgment or final order for or against one or ‘more of Several parties or in separate claims, counterclaims, cross-claims, and third party complaints, while the main case is ending, Unless the court allows an appeal therefrom: and 7. An order dismissing an action Without Prejudice (Rule 41, Sec. 1). : What is the nature of judgments or orders that are subject to the performance of a condition precedent? A: They are not final until the condition is performed. Before the condition is performed or the contingency has happened, the judgment is not effective and is not capable of execution. Such judgment contains no disposition at all and is a ‘mere anticipated statement of what the court shall, do in the future when a particular event should happen 1: What is the final judgment rule and what are the exceptions to this rule? A: In those instances where the judgment or final order is not appealable because itis interlocutory, the aggrieved party may file the appropriate special civil action under Rule 65. Q: What is the effect of noncompliance with the finality of judgment rule? ‘A: The appellate court will be held to lack jurisdiction and the recourse is the dismissal of the appeal Q: What are the exceptions to the final judgment rule? X General Rule: Immediate review on appeal of judgments or orders which do not decide all portions of a case is disallowed by virtue of the final judgment rule. Exceptions: 1. Statutory exception Example: Appeal from a partial judgment or order render for or against one or more of several parties, or in separate claims, counterclaims, ‘cross-claims, and third-party complaints, while the ‘main case is pending, of allowed by the trial court 2. Discretionary exception Supreme Court's plenary discretion to accept or refuse invocations ofits appellate jurisdiction PAGE 47:0F 157°ATENEO CENTRAL BAR OPERATIONS 2018 3. Collateral order exception The decision or order determines a matter collateral to the rights undertying the action and which is too important to be denied review. This depends upon finding that the decision or order being appealed truly involves collateral matters and is a final determination of those issues. Example: When a party or counsel is charged for indirect contempt which is related to a principal action pending in court. Sec. 4, Rule 71 requires that the petition for contempt, which shall allege such connection with the pending action, should bbe docketed, heard and decided separately from the pending action. If there is no consolidation, and wicted, an appeal to the proper cou! mediately as in criminal cases. The immediate appeal is allowed because the contempt incident was collateral to the main case and the conviction is a final determination of the issue of contempt. However, no immediate appeal is proper if the order of contempt is purely civil (only to coerce compliance, ‘not punish). 4. Where immediate harm might occur to the appellant if review is postponed because the trial court's decision is such that it requires some immediate act by the parties that will be irremediable should later review suggest that it was improperly ordered, Q: What is the participation of the Solicitor General during appeal? A: The Solicitor General is the sole representative of the People of the Philippines in appeals before the CA and the Supreme Court. Failure to have a copy of @ petition served on the People of the Philippines, through the OSG, is a sufficient {ground for the dismissal ofthe petition as provided in Section 3, Rule 42 of the Rules of Court (People v. Duca, G.R. No, 171175, 2009). Q: What are the modes of appeal? Ordinary Appeal from MTC to RTC (Rule 40) Ordinary Appeal from RTC to CA (Rule 41) Patition for Review (Rule 42) Patition for Review on Certiorari (Rule 45) Appeal from Quasi Judicial Agencies to CA (Rule 43) REMEDIAL LAW Q: What is the period of appeal via notice of appeal under Rules 40, 41, 42, 43 and 45? 15 days of BO Gays Gi record on appeal is fequied) from notice of Final judgment or final order toRTC Full payment of appeal fees within the period to appeal Non-extendible, but MRIMNT will trigger fresh period from receipt of order ofdenial reg GR: 15 days oF 30 days (if PME RIed record on appeal is required) from notice of final judgment or final order EXC: 48 hours for habeas corpus cases Full payment of appeal fees within the period to appeal Non-extendible, but MRIMNT will trigger fresh period from receipt of order of denial 15 days from notice of decision Extendible for 15 days upon proper motion and payment of the full amount of docket and other lawful fees and deposit for costs before the expiration of the reglementary period Extendible for another 15 days for the most compelling reasons PAGE 48 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 rrr 15 days from notice of the ee award, judgment, final CNS Corder or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for ‘new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo Only one (1) motion for reconsideration shall be allowed Extendible for another 15 days for the most compelling reasons with full payment of docket fees. REMEDIAL LAW Q: Whats the function of notice of appeal? ‘A: An appeal by notice of appeal is a mode that envisions the elevation of the original records to the appellate court as to thereby OBSTRUCT the trial court in its further proceedings regarding the other parts of the case (Lebin v. Mirasol, G.R. No. 164255, 2011). Q: What is the rationale for allowing multiple appeals? ‘A: The rationale behind allowing more than one appeal in the same case is to enable the rest of the case 10 proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Rovira v. Heirs of Dloste, GR. No. 160825, 2010) Q: What is the Fresh Period Rule: Neypes Rule? A: A party shall have a FRESH PERIOD of 15 days to file a notice of appeal to the RTC from receipt of the order denying a motion for new trial ‘or motion for reconsideration. This rule shall apply to Rules 40, 41, 42, 43 and 45 (Neypes v. CA, G.R. No 141524, 2005) and in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure (Yu vs. Tatad, GR. No. 170979, 2011) Note: The period is 30 days if record on appeal is required. Q: What issues are to be raised on appeal? AD 1. Questions of FACT — exists when the doubt or difference arises as to the truth or the falsehood of alleged facts; or when the query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole and the probabilities of the situation (Sesbreno vs. CA, G.R. No. 84096, 1998): (Cirtek Employees Labor Union vs. Cirtek Electronics, Inc., G.R. No. 190515, 2011). 2. Questions of LAW — exists when the doubt or difference arises as to what the law is on certain state of facts (Sesbreno vs. CA, G.R. No. 64096, PAGE 49.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 1995); (Cirtek Employees Labor Union vs. Cirtek Electronics, Inc., G.R. No, 190518, 2011). It also pertains to the legal consequences or effects of the law on a given set of facts. 3. MIXED Questions of Fact and Law Q: What issues are allowed to be raised for the first time on appeal? & 1. Those affecting jurisdiction over subject matter 2. Evidently plain and clerical errors within contemplation of law In order to serve ends of justice Matters raised in trial court having some bearing on issue which parties failed to raise Or which lower court ignored 5. Matters closely related to error assigned (Sps. Mario and Julia Campos v. Republic, G.R. No, 184371, 2014). Q: What is the Harmless Error Rule in appellate decisions? A: The Court at every stage of proceedings must disregard any error or defect which does not affect substantial rights of parties (Rule 51, Sec. 6). Q: What is the remedy from denial of motion to dismiss? ‘A: Appeal from decision. E: If ground for dismissal is tack of jurisdiction over the subject matter, the remedy should be certiorari from the order denying the motion to dismiss, (Boston Equity Resources, Inc. vs. Court of Appeals, G.R. No. 173946, 2013) Q: Is the trial court's order denying petitioner Republic's motion for reconsideration of the decision granting respondent Ortigas the authority to sell its property to the government appealable? A: Yes, since the order denying the motion for sconsideration is not an interlocutory order because it completely disposed of a particular matter. However, the Court of Appeals correctly dismissed Petitioner's appeal to the CA because: the Republic used the wrong mode of appeal (Republic v. Ortigas, G.R. No. 171496, 2014). Q: Differentiate between the first and second paragraphs of Sec. 8, Rule 40. ‘A: If an appeal is taken from an order of the lower court dismissing the case without a trial ‘on the merits, the Regional Trial Court may affirm cr reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if t has jurisdiction thereover, shall try the case on the merits as ithe case was originally 1d with it. In case of reversal, the case shall be remanded for further proceedings. (1* paragraph) If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the ‘admission of amended pleadings and additional evidence in the interest of justice (Rule 40, Sec. 8). (2° paragraph) a jl NU 17 PARAGRAPH PT Contempiates an appeal rom | Appeal from an an order off order of dismissal of | dismissal of the MTC] the MTC but issued the case was without trial tried on the ofthe case on | merits the merits PEMA Rule 41 (as fit was originally | pig filed in the eae RTC) Ce fo en Lack of jurisdiction Ce Q: The counsel for petitioner filed the Notice of Appeal via a private courier, a mode of filing not provided in the Rules. When is the pleading, considered filed? PAGE 50 OF 167:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: Although not prohibited by the Rules, the date of delivery of pleadings to a private letter forwarding agency is not to be considered as the date of fing thereof in court. Instead, the date of actual receipt by the court is deemed the date of filing of that pleading. Records show that the Notice of Appeal was mailed on the 15th day and was received by the court on the 16th day or one day beyond the reglementary period (Heirs of Miranda vs. Miranda, July 3, 2013). : What is not appealable under Sec. 1, Rule 41? A: What Sec 1, Rule 41 prohibits an appeal from an interlocutory order. An interlocutory order, unlike a final judgment, does “not completely dispose of the case [because it leaves to the court} something else to be decided upon.” Appeals from interlocutory orders are generally prohibited to Prevent delay in the administration of justice and to.prevent “undue burden upon the courts. Orders denying motions for reconsideration (MR) are not always interlocutory orders. When the MR is on a final order, as when it is an MR of an order of dismissal of the complaint, it is considered an appeal from a final decision or order and thus appealable. The trial court's order denying petitioner's MR of the decision granting respondent the authority to sell its property to the government was not an interlocutory order because it completely disposes of a particular matter. An appeal from it would not cause delay in the administration of justice (Republic v. Ortigas, G.R. No. 171496, 2014). Q: May an appeal be taken from the denial of a motion for reconsideration? A: Yes, if the subject of the MR is a judgment or final order. ‘An order denying the motion for reconsideration of a decisions the final resolution of the issues a trial court earlier passed upon and decided. Thus, the notice of appeal filed against the order of denial is deemed to refer to the decision subject of the MR. (Sps. Mendiola v. CA, G.R No. 159746, 2012), ‘The denial of a motion for reconsideration of an order granting the defendant's motion to dismiss is not an interlocutory order but a final order because it puts an end to the particular matter involved. Accordingly, the claiming party has a fresh period of 15 days from the notice of the denial within which to appeal the denial (Alma Jose v. Javellana, G.R. No. 158239, 2012), Pen ened Crest i ng aoe een) Ce uencry Not appealable via | Appealable via ‘ordinary appeal; | ordinary appeal (Sps. certiorari is proper] Mendiola v. CA, G.R remedy No. 159746, 2012). Example: MR of an order of dismissal of a complaint ((Sps. Mendiola v. CA, G.R No. 159746, 2012). Example: MR of an order denying bill of particulars Q: X filed a petition to claim attorney's fees for services rendered for Y. The RTC ruled granted the award to X, thus, Y filed a Notice of Appeal. ‘The RTC granted that Notice of Appeal, but on. Motion for Reconsideration by X, alleging that the such Notice of Appeal failed to comply with the requirements of Rule 13 of the Rules of Court; failure to state material dates; contained deliberate suppression and omissions; and did. not contain full names of the petitioners. The CA reversed the decision on the ground that the RTC by granting the Notice of Appeal had been perfected, and that the RTC had already been divested of jurisdiction. Whether or not there was reversible error by the CA. A (DEL CASTILLO): No. Since the case has not been made out for multiple appeals ~ Rule 41, Sec. 2 of the Rules of Court - a record on appeal is unnecessary to perfect the appeal. The only requirement to perfect the appeal in the present case is the fling of a notice of appeal in due time. 'Y complied with such, and the RTC had already decided with finality up to the appeal stage and is already in the execution stage. Hence, there is no reason why the original records of the case must remain with the trial cour. PAGE St OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW AS for the jurisdiction of the CA over the petition for certiorari, the discretion on initially determining the sufficiency of a petition lies with the court before which patition was filed. As to compliance with Rule 13, Sec. 11, the Court has the discretion, to relax the rules since they are mere tools designed to facilitate the attainment of justice. For the statement of material dates, such may be excused since the dates are evident from the records. For the oppression of documents or pleadings, the Rules only state that such documents, pleadings or records should be relevant or pertinent to the assailed resolution, judgment or orders, where the sufficiency of such is left with the CA. As to the caption, although it ly specified the names, the contained all the names and verification signatures. (Rovira v. Heirs of Jose C. Deleste, GR. No, 160825, March 26, 2010) Q: When does Rule 42 apply? ‘A: Rule 42 applies when the case involves an appeal from an order of the RTC in its appeliate jurisdiction (Rule 41, Sec. 2 & Lebin v. Mirasol, GR. No, 164255, 2011). @: X filed an ejectment complaint against the ‘Municipality of Y. MTC decided in X’s favor and ordered the Municipality to vacate the Property. The latter filed a notice of appeal but the MTC did not give due course thereto. Thus, the Municipality filed a petition for certiorari with the RTC. The RTC granted the Municipality's petition. X filed a Rule 42 petition with the CA. Is A correct? ‘A: No. Since the Municipality filed a petition for certiorari instead of an appeal from the MTC's ‘order, X's remedy should be an appeal under Rule 41, not under Rule 42 (Heirs of Arturo Garcia v. Municipality of Iba, G.R. No. 162217, 2015), Q: The sole issue raised by petitioner Republic of the Philippines to the CA is whether respondent Ortigas’ property should be conveyed to it only by donation. This question involves the interpretation and application of ‘Sec. 50 of PD 1529. What is the proper mode of appeal? ‘A: The issue raised before the CA was purely ‘question of law. The proper mode of appeal is through a petition for review under Rule 45, Hence, the Court of Appeals did not err in dismissing the appeal on this ground (Republic v. Ortigas, G.R. No. 171496, 2014). : What is a Petition for Relief from judgment? A: A potition for relief from judgment is a remedy available ONLY to those PARTIES in the case which is only allowed in exceptional cases when there is NO OTHER AVAILABLE ADEQUATE REMEDY and for the following grounds ~ fraud accident, mistake or excusable negligence. It is filed with the same court which rendered the judgment. (Tuason v. CA, G.R. No. 116607, 1996). @: What are the grounds for availing the remedy? A: A potition for Relief may be filed based on the following grounds: 1. When a judgment or final order is entered into, or any other proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake or inexcusable negligence; or 2. When the petitioner has been prevented from taking an appeal by fraud, accident, mistake or inexcusable negligence (City of Dagupan v. Maramba, G.R. No. 17441, 2014), Q: What is the time to file a petition? rhe petition shall be filed within sixty (60) days after the petitioner learns of the judgment, final order or proceeding, and NOT more than six (6) months after such judgment or final order was entered, or such proceeding was taken (Rule 38, Sec. 3). PAGE 52.0F 157ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2018, Q: What is a petition for annulment of judgment? AA: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. Consequently, an action for annulment of judgment may be availed of even ifthe judgment to be annulled had already been fully executed or implemented (Bulawan v. Aquende, G.R. No. 182819, 2011; Diona v. Balangue, G.R. No. 173559, 2013) Q: What kind of fraud is contemplated as a ground for annulment of judgment? A: Extrinsic fraud (Sy Bang v. Sy, 604 Phi. 606, 625, 2009) @ Can gross negligence be equated to extrinsic fraud? A: No. By its very nature, extrinsic fraud relates to cause that is collateral in character. It relates to any fraudulent act of the prevailing party in litigation which is committed outside the trial of the case, where the defeated party has been Prevented from presenting fully his side of the cause, by fraud or deception of his opponent. Even in the presence of fraud, annulment will not lie unless the fraud is committed by the adverse party, not by one’s own lawyer. In the latter case, the remedy of the client is to proceed against his own lawyer and not re-itigate the case where judgment had been rendered (Pinasukan Seafood House v. FEBTC, GR. No. 159926, 2014), Q: Can a judgment based on a compromise agreement be nullified because of extrinsic fraud? ‘A: No. A compromise agreement is a contract Whereby the parties make reciprocal concessions. to avoid litigation or to put an end to one already ‘commenced. Once it is approved by the RTC, it ceases to be a mere contract of the parties and is, transformed into a final judgment. If the ground of the respondent to assail the judgment based on the compromise agreement was extrinsic fraud, his action should be brought under Rule 47. If the ground relied upon is extrinsic fraud, the action ‘must be filed within 4 years from the discovery of the extrinsic fraud; of the ground is lack of jurisdiction, the action must be brought before itis barred by laches or estoppel. This remedy could only be availed if the ordinary remedies of new trial, appeal, or petition for relief or other appropriate remedies are not available. In the present case, respondent could have availed of Rule 38, relief from judgment (Tung Hui Chung and Tong Hong Chung v. Shih Chi Huang, G.R. ‘No. 170679, 2016). Grounds: 1. Extrinsic fraud 2. Lack of Jurisdiction 3. Lack of Due Process (under jurisprudence) 'S. EXECUTION, SATISFACTION, AND. EFFECT OF JUDGMENTS Q: How should a judgment be executed? ‘A: Judgment should be executed on motion within five (5) years from entry: or by filing an independent action for revival of judgement after five years but before ten (10) years from entry. The Rovived judgment may be enforced by motion five (6) years from date of its entry; or by action, after the lapse of five (5) years, before itis barred by the statute of limitations (Rule 38, Sec. 6). @: What must the judgment creditor accomplish within the 5-year prescriptive period in execution by motion? A 4. The filing of the motion for the issuance of the writ of execution 2. The court's actual issuance of the writ Execution by independent action is mandatory if the five-year prescriptive period has already elapsed. However, it must be filed before it is barred by the statute of limitations, which is 10 years from the finality of judgment (Olongapo City v. Subic Water and Sewerage Co, Inc., G.R. No. 171626, 2014) PAGE 53:0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When does execution of judgment by motion prescribe? A: General rul ssalisfied fully, Exception: When delay caused by actions of judgment debtor and/or is incurred for his benefit cr advantage (Olongapo City v. Subic Water and Sewerage, G.R. No. 171626, 2014) In 5 years; If issued, valid untit Q: Is execution a matter of right? ‘A: Execution is a matter of right on motion either {upon judgment or order that disposes of the action oF proceeding, upon expiration of the period to appeal thereffom and no appeal hi J perfected, or when an appeal has been duly perfected and resolved with finality. (Rule 39, Sec. 0. Qi Is there discretionary execution? A: Yes in two instances. Execution of a judgment or a final order pending appeal and execution of several, separate or partial judgments (Rule 39, See. 2). Q: What are the properties exempt from execution? Az 1. The judgment obligor's family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith; 2. Ordinary tools and implements personally used by him in his trade, employment, or valinoos: 3. Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; 4. His necessary clothing and articles for ordinary personal use, excluding jewelry; 5. Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value ‘not exceeding 100,000 pesos. 6. Provisions for individual or family use sufficient for four months; 7. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000 pesos; 8. One fishing boat and accessories not ‘exceeding the total value of 100,000 pesos ‘owned by a fisherman and by the lawul use of which he ears his livelihood: 9. So much of the salaries, wages, or earnings of the judgment obligor for his personal services, with 4 months preceding the levy as are necessary for the support of his family; 10. Lettered gravestones; 11. Monies, benefits, privileges, or annuities aceruing or in any manner growing out of any life insurance; 12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and 13, Properties specially exempted by law (Rule 39, Sec. 13). Q: What are the requirements to stay the ‘execution of judgment in plaintiff's favor in an ejectment suit under Sec. 19, Rule 70? A: The defendant must: (PSR) 4. Perfect an appeal 2. File a supersedeas bond 3. Periodically deposit the rentals becoming due during the pendency of the appeal. Failure to comply with all would make the judgment immediately executory (Acbang v. Luczon, Jr, G.R. No. 164246, 2014) Q: What are the characteristics of execution pending appeal in ejectment cases? (Rule 70, sec. 21) A 1. The judgment of the RTC against_the defendant is immediately executory. ‘The RTC’s duty to issue a writ of execution is not discretionary but ministerial and may be compelled by mandamus. Rationale: To avoid injustice to a lawlul possessor Nevertheless, the appallate court may stay the writ of execution should the circumstances so require. PAGE 54 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 2. Such judgment of the RTC is not stayed by appeal therefrom, unless otherwise ordered by the RTC or, in the appellate court's discretion, suspended or modified Execution of the RTC's judgment under Sec. 21 Rule 70 is not governed by Sec. 2, Rule 39 but by Sec. 4, Rule 39 on judgments not stayed by appeal. Thus the general rule that the judgment of, the RTC is stayed by appeal to the CA is not applicable (ATO v. CA, G.R. No. 173616, 2014). May be availed of in| May be availed of at the RTC only before | any stage of the the CA gives due | appeal to the CA (ATO course to the appeal|v. CA, GR. No. (ATO v. CA, GR. No. | 173616, 2014). 173616, 2014), Q: What are the requisites of execution pending appeal? ht General Rule: Only a final judgment may be executed Exception: Execution of a judgment pending appeal (Diese! Construction Company v. Jolibee Foods, G.R. No. 136805, 2000). Requisites: (MGS) 1. Motion by the prevailing party with notice to the adverse party 2. Good reason for execution pending appeal 3. Good reason must be stated in the special order (Navarosa v.COMELEC, G.R. No, 157957, 2003). Q: What are considered good reasons? A: Compelling circumstances _ warranting immediate execution for fear that favorable judgment may yield to an empty victory (GSIS v. Prudential, G.R. No, 165585, 2013). REMEDIAL LAW Q: Can GSIS funds and assets be subject to execution? ‘A: Yes, because the exemption under Sec. 39 of RA 8231 does not deny private entities the right to enforce their contractual claims against GSIS. GSIS may be held liable for the contracts it has entered _into_in_the_cour its_business investments, especially since the right of redress. arose from a purely contractual relationship of a private character (GSIS v. Prudential Guarantee & Assurance, Inc., G.R. No. 165585, 2018) Q: Does the execution of the judgment mean that the issues on appeal have become moot and academic? ‘A: No. The execution of the RTC judgment cannot bbe considered as a supervening event that would automatically moot the issues in the appealed case. Otherwise, there would be no use appealing a judgment, once a writ of execution is issued and satisfied. That situation would be absurd. The Rules of Court provides for reversal or annulment of an executed judgment, where there would be restitution or reparation. Thus, there is stil possibility of the appellate court's reversal of the appealed decision - even if already executed — and, consequently, of a restitution or a reparation (Carpio v. CA, G.R. No, 183102, 2013). Q: Against whom can a writ of execution be issued against? ‘A: A writ of execution can only be issued against @ party and not to strangers to a case or those who did not have his day in court (Olongapo City v. Subic Water and Sewerage Co, Inc., G.R. No. 171626, 2014). Q: Is an appeal from the decision in an action for revival of judgment allowed? Yes. The party aggrieved may appeal the ion but only insofar as the merits of the action des for revival is concemed. The original judgment, which is already final and executory, may no longer be reversed, altered, or modified (Heirs of Miranda v. Miranda, G.R. No, 179638, 2013) PAGE 550F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the remedy of the third party claimant to prevent the inclusion of his property in the execution sale? A 1. Separate action under Sec. 16, Rule 39 to vindicate his claim of ownership and/or Possession. In that action, he may secure an injunction to restrain the sale of the property (Arabay, Inc. v. Salvador, G.R. No L-31077, 1978) 2. Motion for summary hearing A third person whose property was seized may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor. However, the court can only determine whether the sheriff has indeed taken hold of property not belonging to the judgment debtor. It does not and cannot pass upon the ‘question of title to the property, with any character of finality (Villasi v. Garcia, G.R. No. 190106, 2014). The timing of the filing of the third party claim is important because it determines the remedies that a third party is allowed to file. He may vindicate his claim to the propery in a separate action, because intervention is no longer allowed as judgment has already been rendered. He may also vindicate his claim by intervention because he has a legal interest in the matter in iigation (Fort Bonifacio Development Corp. v. Yilas Lending Com. G.R. No. 158997, 2008) TV. PROVISIONAL REMEDIES: ‘A. GENERAL MATTERS, B, PRELIMINARY ATTACHMENT Q: What is preliminary attachment? A; Attachment is a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party (Olib v. Pastoral, GR No, 81120, 1990). ‘The attachment of the property of the defendant converts an ordinary action in personam into an action quasi in rem. In such case, jurisdiction over the person of the defendant is not required as long as the court acquires jurisdiction over the res (Biaco_v. Countryside Rural Bank, G.R. No. 161417, 2007). Q: What are the grounds for issuance of preliminary attachment? A: The following are the grounds: (DEC-CR) 1. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from aw, contract, quasi-contract, delct, or quasi-delict against a party who is about to depart from the Philippines with the intent to defraud his creditors; 2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or {for a wilful viottion of duty; 3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been goncealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; PAGE 56 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 4. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof, 5. In an action against a party who has removed or disposed of his property, oF is about to do so, with intent to defraud his creditors; and 6. In an action against a party who does not reside in the Philippines, or on whom summons may be served by publication (Rule $7, Sec. 1). NOTE: In grounds 1-5, fraud (in fraud of creditors, fraudulent detention or removal, embezzlement, etc.) is an essential requirement. NOTE: The fact that the applicant is wiling to post the attachment bond is not by itself a ground for the issuance of the writ of attachment, What are the requisites for the issuance of an order of writ of preliminary attachment? A 4. Afficavit To ensure that the applicant states the truth by requiring him to allege the presence of all the legal requirements under oath. The affidavit is the foundation of the writ and if none be filed or one be filed wholly fails. to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void (Callo-Claridad v. Esteban, G.R. No. 191567, 2013) ‘The affidavit is the foundation of the weit and if none be filed or one be filed wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void (Jardine-Manila France v. CA, G.R. No. 55272, 1989). Contents of the affidavit 1. Asufficient cause of action exists 2. The case is one of those mentioned in Sec. 1, Rule 57 3. There is no sufficient security for the claim sought to be enforced by the action 4. The amount due to the applicant is as ‘much as the sum for which the order is granted above all legal counterclaims (Rule 57, Sec. 3) REMEDIAL LAW Itis not enough to state that a sufficient cause of action exists. The applicant must state the facts showing cause of action, ‘To convince the court that the case is one of those mentioned in Section 1 of the Rule, the applicant must state facts, i. place, time, date, to illustrate the grounds for attachment relied upon. bare allegation that an encumbrance of property is in fraud of creditors does not suffice. Factual bases for such conclusion must be clearly averred (Adlawan v Torres, G.R. No. 65957-58, 1994). ‘The amount due to the applicant must be as much as the sum for which the order is granted above all legal counterclaims, because if the adverse party has a counterclaim against the applicant, this may off-set the claim (See Rule 57, Sec 3). 3. Attachment Bond ~ Executed in favor of the adverse party in an amount fixed by the cour, the bond is conditioned to pay all the costs which wil be adjudged the adverse party and all damages he may sustain if the court should later rule that the applicant is not entitled to the attachment (See Rule 57, Sec. 4) ‘The surety is liable for all damages and not only for damages sustained during the appeal as this Is its commitment (Phil. Charter Ins. v CA, G.R. No. 88379, 1989). ‘The writ will not be issued if areal estate mortgage exists to secure the obligation. (Salgado v. Court of Appeals, G.R. No. 55381, 1994). PAGE 57 OF 187ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW PRELIMINARY INJUNCTION. Q: What is preliminary injunction? A; Itis an order granted at any stage of an action oF proceeding before the judgment or final order, requiring a party or a court, agency or person to: 1 Refrain from a particular act or acts (prohibitory injunction); or 2. Perform a particular act or acts (mandatory injunction) (Rule 58, Sec. 1). Q: Whatis its purpose? A: Injunction is resorted to only when there is a pressing necessily to avoid _ injurious consequences which cannot be remedied under any standard compensation. The sole objective of writ of preliminary injunction is to preserve the ‘status quo until the merits of the case can be heard fully (Unilever v CA, G.R. No. 119280, 2006). Right of applicant to the injunction must be clear and unmistakable. Q: What a Temporary Restraining Order? A: Itis a temporary or provisional order to maintain the subject of controversy in status quo until the hearing of an application for a temporary injunction Unlike the injunction, it is intended as a restraint upon the defendant until the propriety of granting an injunction pendente lite can be determined, and it goes no further than to preserve the status quo untit such determination. Accordingly, the grant, denial, or lifting thereof does not in any way pre- ‘empt the court's power to decide the issue in the main action which is the injunction suit (Regalado 2008 ed). The court to which the application for preliminary injunction was made may issue a TRO, effective for 20 days from notice to the party or person sought to be enjoined, if it shall appear from facts ‘shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, Meanwhile, the executive judge of @ multiple-sala court or the presiding judge of a single-sala court may issue ex parte a TRO effective for seventy- two (72) hours from issuance if: a, The matter is of extreme urgency; and b. The applicant will suffer grave injustice or irreparable injury (Rule 58, Sec. 5). Q: What are the requisites of a writ of preliminary injunction or temporary restraining order? A: (VERB NH) (2) There must be a verified application; (b) The application must show facts entitling the applicant to the relief demanded; (©) A bond must be filed, unless exempted in the court where the action is pending; and (@) Prior notice and hearing for the party/persons sought to be enjoined (Rule 58, Sec. 4) N.B. TRO — bond is optional P| — bond is mandatory. : Is the writ of injunction proper to restrain foreclosure of mortgage in a case where respondents principally feared the loss of the mortgaged properties, and faced the possibility of a criminal prosecution for the post-dated checks they issued? ‘A: No, Such fears did not constitute the requisite irreparable injury, because ultimately the amount to which the mortgagee-bank shall be entitled will be determined by the RTC’s disposition of the case (Bank of the Philippine Islands vs. Hontanosas, G.R. No. 15761325, 2014). @: Can courts issue writs of prohibition or Injunction in order to enjoin or restrain any criminal prosecution? A: As a general rule, no. But there are extreme cases in which exceptions to the general rule have been recognized, including: 1. When the injunction is necessary to afford adequate protection to the constitutional rights of the accused; 2. When it is necessary for the orderly administration of justice or to avoid oppression (or multiplicity of actions; 3. When there is a prejudicial question that is sub judice; PAGE 58 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 4. When the acts of the officer are without or in excess of authority; 5. When the prosecution is under an invalid law, ‘ordinance, or regulation; 6. When double jeopardy is clearly apparent; 7. When the court has no jurisdiction over the offense; 8. When It is a case of persecution rather than prosecution; 9. When the charges are manifestly false and motivated by the lust for vengeance; and 40. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Bank of the Philippine Islands vs Hontanosas, G.R. No. 18761325, 2014) Q: RTC granted X's application for injunction in the initial stage of the case. Is this proper? No. Such granting of X's application already amounted to the virtual acceptance of X's alleged entitlement to preventing Y from considering and passing upon the applications of other parties to operate their own Private Emission Testing Center in lloilo City based on X's still controversial capabily to serve all the registered motor vehicles jn Woilo City. The granting amounted to the prejudgment of the merits of the case (City of loo v. Honrado, G.R. No. 160399, 2015). In stressing that the RTC is bereft of jurisdiction to entertain the injunction case, the Republic avers that it Is the POEA which has original and exclusive jurisdiction to hear and decide all pre-employment cases which are administrative in character involving or arising out of violations of recruitment regulations, or violations of conditions for the issuance of license to recruit workers. Is this correct? ‘A: No. The RTC can take cognizance of the injunction complaint, which "is a suit which has for its purpose the enjoinment of the defendant, Perpetually or for 2 particular time, from the ‘commission or continuance of a specific act, or his ‘compulsion o continue performance of a particular act." Actions for injunction and damages ie within the exclusive and original jurisdiction of the RTC pursuant to Section 19 of Bates Pambansa Big. 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by RA 7691. (Republic v. Principalia Management, G.R. No. 198426, September 2, 2015). D. RECEIVERSHIP. Q: Whats receivership? Receivership is aimed at the preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights (Arranza v. B.F. Homes, Inc., 33 SCRA 799, 2000). Property subject of receivership must be under litigation (See Rule 59, Sec. 1 & Rella v. Alcasid, GR. No. L-17176, 1962). The purpose of Receivership is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal, or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied (Rule 59, Sec. 1). Q: What are the rules on the appointment of a receiver? ‘A: Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: 1, When it appears from the verified application land such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; 2. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; PAGE 59 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied for the judgment obligor refuses to apply his property to the satisfaction of the judgment or otherwise carry the judgment into effect; or 4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing the property in tigation, Sec. 1(d), Rule 59 of the Rules of Court is couched in general terms and broad in scope, encompassing instances not covered by the other grounds enumerated under the said sect Courts must remain mindful of the basic principle that receivership may be granted only when the circumstances so demand, either because the property sought to be placed in the hands of a receiver is in danger of being lost or because they fun the risk of being impaired, and that being a drastic and harsh remedy, receivership must be granted only when there is a clear showing of necessity for it in order to save the plaintiff from grave and immediate loss or damage (Tantano v. Caboverde, G.R. No. 203685, 2013) During the pendency of an appeal, the appeliate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court (Rule 59, Sec. 1) E, REPLEVIN Q: What is replevin? A: Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, Le. to regain the possession of personal chattels being wrongfully detained trom the plaintiff by another, or to the provisional remady that would allow the plaintiff to retain the thing during the pendency of the action. and hold it in pendente lite (Tilson v. Court of Appeals, 197 SCRA 587, 1991), The action is primarily possessory in nature and determines nothing more than the right of possession, Replevin is so usually described as a mixed action, being partly in rem and partly in personam ersonam on is primarily pecovery of specific property is concerned, and in personam as regards to damages Involved. As an . As an roperty is concerned, and in an the right of possession, Replevin is so usually described as a mixed action, being partly in rem and partly in personamer or of his having a special interest therein (BA Finance Corporation v. Court of Appeals, 258 SCRA 102, 1996) Q: X filed a case of Recovery of Possession with Prayer for Replevin against Y. X then appointed Z as his agent to sell the subject vehicle, surrendering to Z all documents of title. Z sold the vehicle to another person. Will the case prosper? A (DEL CASTILLO): It will not. Rule 60 allows a plaintiff in an action for the recovery of possession of personal property, to apply for a writ of replevin if it can be shown that he is the owner of the property claimed or is entitled to the possession thereof. In this case, when X authorized Z to sell the vehicle and Z subsequently sold the vehicle, X ceased to be the owner of the vehicle and also lost his right of possession over it, Hence, X may no longer seek a return of the same through replevin. For a writ of replevin to prosper, plaintiff must show entitied to possession over the thing. (Wiliam Siy v, Alvin Tomlin, G.R. No. 205998, April 24, 2017) PAGE 60 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 V. SPECIAL CIVIL ACTIONS: ‘A. GENERAL MATTERS. B_INTERPLEADER Q: What is an interpleader? ‘A: An interpleader is a remedy whereby a person who has property whether personal or real, in his possession, or an obligation to render wholly or partially, without claiming any right in both, or claims an interest which in whole or in part is not disputed by the conflicting claimants, comes to ‘court and asks that the persons who claim the said property or who consider themselves entitled to demand compliance with the obligation, be required to litigate among themselves, in order to determine finally who is entitled to one or the other thing (Ocampo v. Tirona, G.R. No. 147812, 2008). Q: What are its requisites? 1. There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; 2. The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; 3. The subject matter of the adverse claims must be one and the same; and 4. The parties to be interpleaded must make effective claims (Rule 62, Sec.1) DECLARATORY RELIEF Q: What is an action for Dectaratory Relief? A: An action brought by any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for @ declaration of his rights or duties thereunder before breach or violation is committed. REMEDIAL LAW Q: What are its requisites? (JALR) A: 1. There must be a justiciable controversy; 2. The controversy must be between persons whose interests are adverse; 3. The party seeking dectaratory relief must have a logal interest in the controversy; and 4. The issue involved must be ripe for judicial determination (CJH Development vs. BIR, G.R. No. 172457, 2008) Q: Is declaratory relief a proper remedy for decisions of quasi-judicial agencies? ‘A: No. In the same manner that court decisions: cannot be the proper subjects of a petition for declaratory relief, decisions of quasi-judicial agencies cannot be subjects of a petition for declaratory relief for the simple reason that if a party is not agreeable toa decision either on ‘questions of law or of fact, it may avail of the various remedies provided in the Rules of Court Thus, a decision of the BSP Monetary Board, issued pursuant to its quasi-judicial powers, cannot be a proper subject for dectaratory relief. (Monetary Board v. Philippine Veteran Board,, GR. No. 189571, 2015) Q: Children A, B and C are descendants of X by his first wife while D is a descendant by X’s second wife. An OCT registered in the name of the second wife covered a land in Leyte. X appeared as the owner of the land in its tax declaration and that a free patent was issued in the name of the second wife's heirs. A certain 3° person claims exclusive ownership of the land alleging that such land has been sold to him by the second wife’s heir, D after the former died. A, B, and C, on the ground that D had no right to sell a portion of the land filed an action to quiet the title. Should the quieting of title apply in this case? ‘A (DEL CASTILLO): No. The issues in a case for quieting of title are fairly simple; A etal need to prove only two things, namely: (1) the plaintiff or Complainant has a legal or an equitable title to or interest in the real property subject of the action; and (2) that the deed, claim, encumbrance or proceeding claimed to be casting a cloud on his file must be shown to be in fact invalid or PAGE 61 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW inoperative despite its prima facie appearance of validity or legal efficacy. It Is evident from the ttle that the land belongs to no other than the heirs of the second wife, The land could not have belonged to X, because he is not even named in OCT. With greater reason may it be said that the land could not belong to A et.al, who are X's children by his first wife Unless the first wife and second wife were related by blood such fact is not borne out by the record they could not be heirs to each other. (Chung vs. Mondragon G.R. No. 179754, November 21, 2012) : X filed an action for quieting of title before the RTC. The assessed value of the land is merely 1,230.00. Does the RTC have jurisdiction over the case? A (DEL CASTILLO): YES. On the question of jurisdiction, it is clear under the Rules that an action for quieting of title may be instituted in the RTCs, regardless of the assessed value of the real property in dispute. Under Rule 63 of the Rules of Court, an action to quiet title to real property or remove clouds therefrom may be brought in the appropriate RTC. (Sps..Clemencio C. Sabitsana v. Juanito F. Muertegui De! Castillo, J, G.R. No. 181359, August 05, 2013) [D. REVIEW OF JUDGMENTS AND FINAL| ORDERS OR RESOLUTIONS OF THE| ICOMELEC AND COA ‘CERTIORA! AND] |MANDAMUS PROHIBITION Q: What is a Writ of certiorari? ‘A: A writ directed against any tribunal, board, or officer exercising judicial or quasi-judicial functions, to annul or nullify a proceeding because the entity or person either acted without/in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, by a Person who has no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of aw (Rule 65, Sec. 1) Q: What are the requisites of a Valid Certiorari? a. Tribunal, board, or officer exercises judicial or quasi-judicial functions; b. Tribunal, board, or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and cc. Thereis no appeal or any plain, speedy, and adequate remedy in the ordinary course of law (Rule 65, Sec. 1). Q: What is the nature of Cer rari? A: A petition for certiorari is a special civil action/original action and not a mode of appeal. The sole office of a certiorari is the correction of errors of jurisdiction, including the commission of grave abuse of discretion amounting to lack of jurisdiction and does nat include correction of public respondent's evaluation of the evidence and factual findings based thereon (Riano, 2016) Q: What is the purpose of Certiorari? ‘A: That the judgment, order, or resolution subject of the petition for certiorari be annulled or modified (Rule 65, Sec. 1). Q: What are the grounds? ‘A: That the public respondent acted either with, 1. Lack of jurisdiction 2. Excess of jurisdiction 3. Grave abuse of discretion amounting to lack or excess of jurisdiction (Rule 65, Sec. 1) PAGE 62 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 @: Why is a motion for reconsideration required before certiorari can be filed? A: Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it. Exceptions: (When MR not required) 1. Where the order is a patent nulily, as where the court a quo has no jurisdiction 2 Questions raised have been raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court 3, Urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or the petitioner or the subject matter of the action is perishable 4. A motion for reconsideration would be useless 5. Petitioner was deprived of due process and there is extreme urgency for relief 6. Inacriminal case, relief from an order of arrest js urgent and the granting of such relief by the trial court is improbable 7. The proceedings in the lower court are a nullity, for lack of due process 8. The proceedings was ex parte or in which the petitioner had no opportunity to object 9. Issue raised is purely of law or where public interest is involved 10. Judicial intervention is urgent 11. Its application may cause great and imeparable damage 12, Failure of a high government official from whom relief is sought to act on the matter 19, The issue of non-exhaustion of administrative remedies has been rendered moot 414. Special circumstances warrant immediate and more direct action (Republic v. Bayao, G.R. No. 179492, 2013). Considering that the matter brought to the CA — whether the act complained against justified the filing of the formal charge for grave misconduct and the imposition of preventive suspension Pending investigation — was a purely legal question, the defendant had no need to exhaust the available administrative remedy of filing the motion for reconsideration (Garcia v. Molina, G.R. No. 165223, January 11, 2016). REMEDIAL LAW : Is a motion for reconsideration still required before a petition for certiorari may be instituted even if itis prohibited by the agency? A: Yes. While a government agency may prohibit altogether the filing of a motion for reconsideration with respect to its decisions, the fact remains that certiorari requires the filing of a motion for reconsideration, which is the tangible representation of the opportunity given to the office to correct itself Thus, regardless of the proscription against the filing of the motion for reconsideration, it may be filed on the assumption that rectification of the decision or order must be obtained, and before a petition for certiorari may be instituted (Philtranco Service Enterprises v. Phittranco Service Union, GR.No. 180962, 2014), i Is certiorari the proper remedy for assailing an order GRANTING a motion to dismiss? (0. The proper remedy is to file an appeal. X filed an action for quieting of ttle. ¥ fled a motion to dismiss. The RTC granted the said motion. X filed a motion for reconsideration, but the RTC denied the same, X assailed the dismissal via petition for certiorari, The Court held that the order granting Y's motion to dismiss was a final and not an interlocutory order, against which the proper remedy was an appeal. Certiorari is not a substitute for appeal (Heirs of Sps. Teofilo M. Reterta v. Sps. Lorenzo Mores, G.R. No. 159941, 2011) Q: Is certiorari the proper remedy for assailing an order DENYING a motion to dismiss? A: No. An order denying a motion to dismiss, being ‘merely interlocutory, cannot be the basis of certiorari, But a petition for certiorari may be filed to assail an interlocutory order if it is issued without jurisdiction, or with excess of ju ion, or in grave abuse of discretion amounting to lack of excess of jurisdiction (Banez v. Concepcion, G.R. No. 159508, 2012) PAGE 62.0F 157°ATENEO CENTRAL BAR OPERATIONS 2018 The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the interlocutory order is rendered without or in excess Cf jurisdiction or with grave abuse of discretion (Aranas v. Mercado, G.R. No. 156407, 2014) Q: Does the CTA have jurisdiction over a certiorari assailing an interlocutory order issued by the RTC in a local tax case? A: Yes. The authority of the CTA is included in the powers granted by the Constitution as well as inherent in the exercise ofits appellate jurisdiction, It would be more logical to conclude that the grant of appellate jurisdiction to the CTA over tax cases: fled in and decided by the RTC carries with it the power (o issue a writ of certiorari when necessary in aid of such appellate jurisdiction (City of Manila, v. Cuerdo, G.R. No, 178723, 2014). The CA's original jurisdiction over a petition for certiorari assailing the DOJ resolution in a preliminary investigation involving tax and tariff offenses was transferred to the CTA (Bureau of Customs v. Hon. Devanadera, G.R. No. 193253, 2018) Q: Does the fresh period rule apply to a petition for certiorari under Rule 647 ‘A: No. The fresh period rule does not apply to a petition for certiorari under Rule 64 as itis not akin to a petition for review brought under Rule 42; hence, the period to file a Rule 64 petition should not be reckoned from the receipt of the order denying the motion for reconsideration or the ‘motion for new trial. Pursuant to Sec. 3, Rule 64, it had only 5 days from receipt of the denial of its motion for reconsideration to file the petition. Therefore, since X received the decision denying its motion on July 14, 2014, it had only until July 19 to file the petition (Fortune Life Insurance Company, Inc. v. COA Proper, G.R. No. 213525, 2016). REMEDIAL LAW Q: What is a Writ of Prohibition? A writ directed against any tribunal, board, or officer exercising judicial or quasijudicial or ministerial functions, to desist from further proceeding in the action or matter specified because the entity or person either acted withouvin excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, by @ person who has no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law (Rule 65, Sec. 2) Q: What are the requisites of a Valid Prohibition? a a. Thore must be @ controversy; b. Respondent is exercising judicial, quasi- judicial, or ministerial functions; ©. Respondent acted without or in excess of jurisdiction, or acted with grave abuse of discretion; and d. There must be no appeal or other plain, speedy, and adequate remedy (Rule 65, Sec. 2) Q: What is the purpose of Prohibition? A: A petition for prohibition is intended to prohibit or prevent FUTURE acts done without authority or jurisdiction, and is not proper for acts already accomplished Exceptions: In specific cases wherein the SC allowed @ writ of prohibition even when the act is, already fait accompli: 1. Where it would prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality (Tan v. Comolec, G.R. No. 73155, 1986). Where it would provide a complete relief by not only preventing what remains to be done but by undoing what has been done, such as terminating a preliminary investigation instead of fling a motion to quash (Aurilo v. Rabi, G.R. No. 120014, 2002), 3. Where the acts sought to be enjoined were performed after the injunction suit is brought (Versozav. Martinez, G.R. No. 119511, 1998). PAGE 64 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is a Writ of Mandamus? A: Awrit directed against any tribunal, corporation, board, or officer who unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the Use or enjoyment of a right or office to which such is entitled for it to do the act required to be done to protect the rights of the petitioner and to pay damages. because the entity or person either acted withoutin excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, by a person who has no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law (Rule 65, Sec. 3), Q: What are the grounds for Mandamus? ‘The officer had an imperative duty to perform the act required and the officer unlawfully neglects. the performance of the duty enjoined by law (Rule 65, Sec. 3 & Eng v. Lee, G.R. No. 176831, 2010). : What are the exceptions to the rule on exhaustion of administrative remedies? 1. Where the order questioned is a patent nullity; 2. Where the questions raised in the certiorari proceeding have already been duly raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court; 3. Where there is an urgent necessity for the resolution of the question; 4, Where an MR would be useless or is prohibited: 5. Where petitioner is deprived of due process; 6. Where, ina criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; 7. Where the issue raised is one purely of law or where public interest is involved; 8. Where the proceedings in the lower court are ‘a nullity for lack of due process; 9. Where the proceeding was ex parte or in which the petitioner had no opportunity to object; and 40. Where the subject matter of the action is perishable (Nuque v. Aquino, G.R. No. 193058, 2018). @: When is Mandamus available to a discretionary duty? A: Act sought to be performed involves the exercise of discretion, respondent may only be directed by mandamus to act but not to act in one way or another. Available to compel action, when refused, even in matters involving judgment and discretion, but not to direct the exercise of judgment in a particular matter. When there is gross abuse of discretion, manifest injustice, or palpable excess of authority. (Riano, 2016 citing Dejuras v. Vila, G.R. No. 173428, 2010; MA Jimenez Enterprises v. Ombudsman, GR. No. 155307, 2011). F_ QUO WARRANTO Q: What is quo warranto? ‘A: Nature of a quo warranto proceeding: 1, Itis a direct, not a collateral attack, on the matter assailed! 2. Itis a proceeding against a public officer, not jn his officiel capacity, because no official power or right or duty is sought, but because the officers of authority. but not to direct the 3. It is a proceeding of a public nature filed by a prosecuting attorney ex officio such as by the Solicitor General or fiscal. (But itis personal in ature as to the person claiming office.) (Topacio v. Ong, G.R. No. 179895, 2008). Q: To whom may the action for quo warranto be filed? A: The action is brought against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground {or the forfeiture of his office; or 3. An association which acts as @ corporation within the Philippines without being legally incorporated or without lawful authority so to act (Rule 66, Sec. 1). PAGE 65.0F 157:ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW Q: Is quo warranto a valid remedy to remove an impeachable officer? ‘A: Yes. While the Constitution mentions the list of impeachable officers, the wording of provision implied that impeachment is not the only remedy for removing said officers. (Ropublic v. Sereno, GR. No, 237428, 2018), G_EXPROPRIATION Q: What ‘expropriation? A: Itis a process by which the power of eminent domain is carried out; taking as of private owned property, by government under eminent domain (Barangay Sindalan v. CA, GR. No. 150640, 2007). Q: What are the two stages in an action for Expropriation? - Stage 1: Determination of the plaintiff's authority to ‘exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit ‘Stage 2: Determination by the court of the just ‘compensation for the property sought to be taken (Suguitan v. City of Mandaluyong, 123 SCRA 73, 2000). Q: What is the scope of expropriation? ‘A: Expropriation is not limited to the acquisition of real property with a corresponding transfer of tile or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines ‘also falls within the ambit of the term “expropriation” (National Power Corporation vs Vda. De Capin, G.R. No. 175176, 2008) H. FORECLOSURE OF REAL ESTATE MORTGAGE Q: What is foreclosure of real estate mortgage? A: Foreclosure is a procedure by which the holder of @ morgage — an interest in land providing security for the performance of a duty or the payment of a debt — sells the property upon the failure of the debtor to pay the mortgage debt and, thereby, terminates his or her rights in the property (West's Encyclopedia of American Law, 2d ed). Q: What are its requisites? A: The following are the requi 1. A finding of the amount due the plaint including interest, cost, and other charges approved by the court; 2. Order to defendant to pay said amount within 2 period of not less than ninety (80) days nor more than 120 days from enity of judgment (equity of redemption); and 3. If the defendant defaults, the court should order the sale at public auction of the mortgaged property (Sec. 2, Rule 68). 1. PARTITION Q; What is partition? ‘A: Itis the separation, division and assignment of property held in common among co-owners in proportion to their respective interests in the said property (Marasigan v. Heirs of Marasigan, G.R. No. 156078, 2008). @: Who has jurisdiction over an action for partition? A: The Municipal Trial Court has jurisdiction to take cognizance of real actions or those affecting title to real property, or for the recovery of possession, or for the partition or condemnation of, for foreclosure of a mortgage on real property where the assessed value of the property or interest therein does not exceed Php 20,000, or if in Metro Manila, where the assessed value does not exceed Php 60,000. If the value exceeds the foregoing amounts, the Regional Trial Court shall PAGE 66 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 have jurisdiction. (Barrido v. Nonanto, G.R. No. 176492, 2014) Q: What are the instances when a co-owner may not demand partition? A: (ADITPU) 1. Existence of an agreement among co-owners to retain the property undivided for not exceeding ten (10) years; 2, When co-owners are prohibited by the donor or testator for a period not exceeding twenty (20) years; 3. When partition is prohibited by law; (Civil Code, Art. 494) and 4, When the property is NOT subject to a physical division and to do so would render it unserviceable for the use which itis Unintended (Civil Code, Art. 498). !: Who may file? ‘A: The action shall be brought by the person who ‘has a right to compet the partition of real estate (Rule 69, Sec. 1) or of an estate composed of Personal property, or both real and personal property (Rule 69, Sec. 13), ie. a co-owner. Q: What is forcible entry? ‘A: The possession of the defendant is illegal from the very beginning having deprived the actual possessor of his possession by: (FISTS) {a) Force, (b) Intimidation, (©) Strategy, or (a) Threat, (e) Stealth (Rule 70, Sec. 1) Q: What are its requisites? (PD) A 1. Plaintiff had prior physical possession of the property; and 2. Defendant deprived him of such possession by FISTS (Abad v. Farrales, G.R. No. 178635, 2011). REMEDIAL LAW Q: What is untawful detainer? ‘A: The possession of the defendant is legal in the beginning which, however, subsequently becomes illegal because of the: (ED) 1. expiration or termination of the right to have possession, by virtue of any contract, express or implied, 2. and after a demand to vacate was not heeded by the defendant (Rule 70, Section 1 of the Rules of Court) What are its requisites? (CNR1) 1. Possession of property by the defendant was by contract with or by tolerance of the plaintitt, 2. Such possession became illegal upon notice by plaintiff to defendant of the termination of the latter's right of possession; 3. The defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof, 4, Within one (1) year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment (Romulo v. Samahang Magkapitbahay ng Bayanihan Compound Homeowners Association, Inc., G.R. No. 180687, 2010) : In an appeal from the judgment of the MTC in an unlawful detainer case, is there a trial de novo in the RTC? ‘A: No. Under Sec. 18, Rule 70, the RTC shall decide the appeal on the basis of the entire record of the proceedings had in the MTC and such ‘memoranda as may be submitted by the parties, Thus, RTC erred in ordering the relocation and verification survey ‘in aid of its appellate jurisdiction’ and by hearing the testimony of the surveyor, for its doing so was tantamount to its holding of a trial de novo (Manalang v. Bacani, G.R. No. 156995, 2015) PAGE 67 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Is a boundary dispute a proper subject of Rule 70? ‘A: No. A boundary dispute cannot be settled summarily under Rule 70, the proceedings under which are limited to unlawful detainer and forcible entry (Manalang v. Bacani, G.R. No. 156995, 2015) Q: What is the nature of possession required in ejectment cases? A: Possession in ejectment cases means nothing more than actual physical possession, not legal possession. A party who can prove prior physical possession can recover such possession even against the owner himsol. If he has in his favor prior possession in time, he has the security that entitles him to remain on the property until a person with a better right lawfully ejects him (Calingasan v. Rivera, G.R. No. 171555, 2013). @: Is an action for recovery of physical possession of real property extinguished by the death of a party? A: No. It is a real action and is thus not extinguished by the death of a party. Such death will not render moot the forcible entry case (Calingasan v. Rivera, G.R. No. 171555, 2013). K, CONTEMPT Q: What is contempt? ‘A: Contempt is disobedience and utter disregard to the court by acting in opposition to its authority, justice and dignity. It also includes conduct which tends to bring the authority of the court and, the administration of law into disrepute or in a manner which impedes the due administration of justice (Siy v. National Labor Relations Commission, G.R. No. 158971, 2005). Q: What Is the remedy if a person is cited in contempt of Court? A: Contempt in facie curiae Remedy is certiorari! prohibition (NOT appeal) and filing of such petition for certiorari or prohibition shall suspend the execution of the judgment, provided a bond is filed (Rule 77, Sec. 2). This bond is conditioned upon his performance of the judgment should the petition be decided against him (Bacul v. Belen, AM. RTJ-09-2179, 2012). Constructive contempt Remedy: Appeal (Rule 71, Sec. 11) Q: What is the nature of indirect contempt? ‘ontempt is not a criminal offense. However, it partakes of the nature of a criminal action. Rules that govern criminal prosecution strictly apply to a prosecution for contempt. In fact, Sec. 11, Rule 71 provides that the appeal in indirect contempt proceedings may be taken as in criminal cases. The Supreme Court has held that an alleged contemnor should accorded the same rights. as that of an accused. Thus, the dismissal of the indirect _contempt_c inst_rest amounts to an acquittal, which effectively bars a ‘second prosecution (Digital Tolecommunications Philippines, Inc. v. Cantos, G.R. No. 180200, 2013). PAGE 68 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: What are the acts that may constitute Indirect Contempt? A 1. Misbehavior an officer of a court in the performance of his official duties or in his official transactions; 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, afler being dispossessed or ejected from any real property by the judgment or process of any ‘court of competent jurisdiction, enters or attempts or induces another to enter into or Upon such real property, for the purpose of executing acts of ownership or possession, or jn any manner disturbs the possession given to the person adjudged to be entitled thereto; 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5, Assuming to be an attorney or an officer of a ‘court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of @ person or property in the custody of an officer by virtue of an order or process of a court held by him; and 8. Failure by counsel to inform the court of the death of his client, since it constitutes an improper conduct tending to impede the administration of justice (Rule 71, Sec. 3). Q: What are the procedural requisites before the accused may be punished for Indirect Contempt? A: (COH) 1. Charge in writing to be fled or a show cause order issued by the court; 2. Opportunity for person charged to appear and explain his conduct; and 3. To be heard by himself or counsel (Inonog v. Ibay, AM. No. RTJ-09-2178, 2009). REMEDIAL LAW VI. SPECIAL PROCEEDINGS Q: What is a Special Proceeding? ‘A: A remedy by which a party seeks to establish a status, a right or a particular fact. (Rule 1, Sec. 3a) Q: What are the Subject Matter of Special Proceedings? Settlement of estate of deceased persons; Escheat; Guardianship and custody of children; Trustees; Adoption, Rescission and revocation of adoption; Hospitalization of insane persons; Habeas corpus Change of name; 410. Voluntary dissolution of corporations; 11. Judicial approval of voluntary recognition of minor natural children; 12. Constitution of family home; 13. Declaration of absence and death; _ 14, Cancellation of correction of entries inthe civil registry. (Rule 72, Sec. 1) SoNogsena Q: What is the difference between a civil action and a special proceeding? Baar etre CTL) ‘Act by which one sues another in a court for the enforcement or protection of aright, or the prevention or redress of a wrong Formal demand of a| Petition for a right by one against | dectaration of a status, another right or fact Usually one party, who usually initiates the ‘The act by which one seeks to establish the status or right of a party, or a particular fact At least two parties: plaintiff (complaint), | proceedings with a and defendant | petition, application, or (answer) a special form of pleading ‘Aadversarial Not adversarial when proceedings, where | initiated, but _ may court rules on rights | become adversarial in PAGE 69 OF 167:ATENEO CENTRAL BAR OPERATIONS 2078 ‘and obligations of [the course af the parties proceedings if there are oppositors Not usually based ona cause of action; EXC: Based on a cause of ce habeas corpus Formal pleadings | Formal pleadings not required usually required ‘SETTLEMENT OF ESTATE OF DECEASED PERSONS @: Which court has jurisdiction over settlement of the estate? ye GROSS VALUE of, A: Jui the estate. n depends on t If within Metro Manila, the Regional Trial Court would assume jurisdiction if tho estate exceeds 400,000. If not, the Municipal Trial Court has jurisdiction. Outside Metro Manila, the Regional Trial Court ‘would assume jurisdiction if the estate exceeds 300,000. if not, the Municipal Trial Court has. jurisdiction. (RA. 7691) Q: Where is the Venue of the Proceeding to Settle the Estate? in PSE Tas "Not Phiipine | Resident (Rie 73, Sec. 1) in ary place where any of the decedent's properties are located ‘What is the extent of the jurisdiction of the probate court? : General Rute: Questions as to TITLE to property cannot be passed upon by the probate court in the testate or intestate proceeding but should be ventilated in a separate action. Exception: To determine whether said property should be included in the inventory or list of properties to be administered by the administrator, the court may make a provisional determination. Such determination is provisional and NOT PAGE 70 OF 157 REMEDIAL LAW conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties. (Pio Baretto Realty Development, Inc. v. CA, G.R. No. 132362, 2001) Q: What are the powers and duties of a probate court? ‘A: In probate proceedings, the court 1. Orders the probate of the wil of the decedent (Rule 77, Sec. 3) 2. Grants letters of administration of the party best entitled thereto or to any qualified applicant (Rule 79, Sec. 5) 3. Supervise and controls all acts of ‘administration; hears and approves ciaims against the estate of the deceased (Rule 86, Sec 11) 4, Orders payment of lawful debts (Rule 88, Sec. 11) 5. Authorizes sale, mortgage or any ‘encumbrance of real estate (Rule 69, Sec. } 6. Directs the delivery of the estate to those entitled thereto (Rule 90, Sec. 1) 7. Issues warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law (Rute 73, Sec. 3); an If a person defies a probate order, it may ‘issue a warrant for the apprehension and imprisonment of such person until he perfoms such order or judgment, or is released. (Rule 73, Sec. 3) Q: What is the procedure in the settlement of an estate? A: General Rule: Estate settlement should be judicially administered through an. administrator/executor. Exceptions: 1, Extra-judicial seltlement by agreement between or among heirs. (Rule 74, Sec. 1) 2. Summary settlement of estates of small value. (Rule 74, Sec. 2)ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When is an extrajudicial settlement by agreement between the heirs allowed? A 1. Decedent died intestate (left no wil); 2. There are no outstanding debts at the time of settlement; 3. Heirs are all of legal age or minors represented by judicial guardians or legal representatives; 4. The settlement is made in a public instrument OR by means of an affidavit, in the case of a sole heir, duly filed with the Register of Deeds; (a) If the decedent left only one heir: the heir executes an affidavit of self-adjudication, (b) If the decedent left more than one heir, the settlement must be made in a public instrument 5. Publication of the extrajudicial settlement in a newspaper of general circulation in the province once a week for three consecutive weeks; and 6. Filing of bond equivalent to the value of personal property posted with the register of deeds Q: How is an extra-judicial settlement done? A: General Rule: Extra judicial settlement shall be done by means of a public instrument filed in the Register of Deeds. (Rule 74, Sec. 1) Exception: If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the Registry of Deeds. (Rule 74, Sec. 1) Q: When is a summary settlement of estates of small value allowed? i 1. Petition filed by any interested person 2. Gross value of the estate, whether or not the decedent died testate OR intestate, must not ‘exceed ten thousand pesos (P10,000).. 3. Application must contain allegation of gross value of estate. 4. Upon hearing, the date of which: (@) Shall be set by court not less than one (1) ‘month nor more than three (3) months from 4 yr, 2 mo, and 1 day a To determine WIN a warrant of arrest or a commitment Judge (Rule | order shall be issued and that 112, Secs. 5 & | there is a necessity of placing 8) respondent under immediate custody in order not to frustrate the ends of justice _| When making a warrantless arrest, and he has probable cause to believe based on Peace Officer Poon” fu evi ee 113, Sec. Bfb)) | OF Cie ee = person to be arrested has committed it Judge (Rule | To determine WIN a search 126, Sec. 4) _| warrant shall be issued @: Can the courts rule on the validity of the Secretary of Justice's determination of the existence of lack of probable cause? ‘A: No. The settled policy is that the courts will not interfere with the executive determination of probable cause for the purpose of filing an information, in the absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostlity. (Metropolitan Bank and Trust Co. V. Tobias, G.R. No. 177780, 2012) @: Can the Secretary of Justice conduct automatic review of the Provincial Prosecutor's affirmance of former resolutions issued by previous investigating prosecutors without conducting an actual reinvestigation of the case? A: Yes. The Secretary of Justice is empowered to review the actions of the Provincial Fiscal during the preliminary investigation or the reinvestigation by virtue of Section 4, Rule 112 of the Rules of Court which recognizes the Secretary of Justice's power to review the actions of the investigating prosecutor, even motu proprio. (Fortaleza v, Gonzales, G.R. No. 179287, 2016) Q: Can the Secretary of Justice issue an Order creating a new panel of investigators to conduct a reinvestigation of the case? : Yes. Under Rule 112, Section 4 of the Rules of Court, the Secretary of Justice may motu proprio, reverse or modify resolutions of the provincial or city prosecutor or the chief state prosecutor even without a pending petition for review. The Secretary of Justice exercises control and supervision over prosecutors and it is within her- authority to affirm, nullify, reverse, or modify the resolutions of her prosecutors. Section 4 of RA. No. 10071 also gives the Secretary of Justice the authority to directly act on any “probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or PAGE 92 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW the city prosecutor." Accordingly, the Secretary of Justice may step in and order a reinvestigation ‘even without a prior motion or petition from a party in order to prevent any probable miscarriage of Justice. (De Lima v. Reyes, G.R. No. 209330, 2016) Q: Is the respondent entitled to copies of co- respondent's affidavit, as well as the transcripts of the clarificatory hearings conducted by the Ombudsman with said co- respondent? ‘A: No. In Estrada v. Ombudsman, the Court had already resolved in detail that under both Rule 112 of the 2000 Rules of Criminal Procedure and Section 4, Rule Il of the Rules of Procedure of the Office of the Ombudsman, a respondent to a preliminary investigation proceeding is only entitled to the evidence submitted by the complainants, and not to those submitted by a co- respondent. (Reyes v. OMB, G.R. Nos. 212593- 94, 2016) Q: Do judges have the authority to immediately dismiss the case for lack of probable cause? ‘A: Yes. The Court declared in Santos-Dio v. CA {(Santos-Dio) that while a judge's determination of probable cause is generally confined to the limited Purpose of issuing arrest warrants, he is ‘nonetheless authorized under Section 5 (a), Rule 112 of the Revised Rules of Criminal Procedure to immediately dismiss the case if the evidence on record clearly fails to establish probable cause. A judge may dismiss the case for lack of probable cause only in clear-cut cases when the evidence Con record plainly fails to establish probable cause = that is when the records readily show tuncontroverted, and thus, established facts which unmistakably negate the existence of the elements of the crime charged. (Young v. People, G.R. No. 213910, 2016) Q: A complaint-affidavit was filed by X accusing Y of libel. After the preliminary investigation, the investigating prosecutor issued a resolution finding that there is probable cause to indict Y of libel. The resolution was approved and an information for libel was filed against Y. Y filed an appeal with the NCR Regional Prosecutor and then to the DOJ Secretary but was denied. Y filed a petition for certiorari saying there was abuse of discretion in finding a prima facie case of libel against her. CA denied the petition. Is there sufficient probable cause to file the information? ‘A (DEL CASTILLO): Yes. Probable cause for the purpose of filing a criminal information needs only. to rest on evidence showing that more likely than not, a crime has been committed and was committed by the suspect. Prosecutor alone determines sufficiency of evidence to establish probable cause justifying the filing of a criminal information since the determination of the existence of probable cause is the function of the prosecutor. Judicial review is allowed only when there is a clearly established grave abuse of discretion. (Corpuz v. Del Rosario, G.R. 149261, December 15, 2010) Q: When may a warrant of arrest be issued? ‘A: If the judge, upon the filing of the complaint or information with the court, finds probable cause, helshe shall issue a warrant of arrest or a ‘commitment order (if the accused had already been arrested) and hold him/her for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he/she may issue summons instead of warrant of arrest. Ifthe judge does not find probable cause, he may either dismiss the case or give the prosecutor a period of 10 days to file additional evidence. If the judge dismisses the case, he must state the basis, of his dismissal, However, if the evidence on record shows that, more likely than not, the crime charged has been committed and that respondent is probably guilty of the same, the judge should not dismiss the case and thereon, order the parties to proceed to trial. (People vs. Young, GR No. 213910, 2016) PAGE 93:0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What procedures docs the prosecutor need to follow in deciding whether to issue warrants of arrest? A: In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses, Following established doctrine and procedure, he shall: 1. Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest [Personal determination]; or 2.If on the basis thereof he finds no probable cause, he may disregard the fisca's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Sollven v. Makasiar, G.R. Nos. L- 82585, L-82827, and L-83979, 1988) : Can a judge issue a warrant of arrest even though the preliminary investigs not yet finished? A: Section 6(b) of Rule 112 also states that the investigating judge could issue a warrant of arrest during the preliminary investigation even without awaiting its conclusion should he find after an. examination in writing and under oath of the complainant and the witnesses in the form of searching questions and-answers that a probable cause existed, and that there was a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (Mangila v. Pangilinan, G.R. No. 160739, 2013) Q: When is warrant of arrest not necessary? Az 1, When the accused is already under detention 2. When the accused is lawfully arrested without a warrant 3. When the offense is penalized by a fine only. (Rule 112, Secs. 5{c}-fd)) Q: What are the remedies of the accused if there was no preliminary investigation? A 1, Refuse to enter a plea upon arraignment and object to further proceedings on ground of absence of preliminary investigation 2. Insist on a preliminary investigation. 3. Raise lack of preliminary investigation as error ‘on appeal. 4. File a petition for prohibition and certiorari If the accused files a petition for prohibition and certiorari, he can also ask for the remedy for injunctive relief. f the court where the petition was. filed does not grant the injunctive relief within 10 days from the fling of the petition, the lower court shall proceed with the hearing of the case or arraignment. (Rule 65, Sec. 7) Q: What is the effect of absence of preliminary Westigation? ‘A: The absence ofa preliminary investigation does ‘not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation, (Villafor v. Viva, G.R. No. 134744, 2001) : X filed a criminal complaint against Y for violation of the Forestry Reform Code for illegally cutting timber. The Office of the City Prosecutor recommended the filing of information against Y and was approved by the Office of the Ombudsman. An information was, filed against Y. Y filed for a Motion for Reinvestigation stating that the complaint filed by X did not mention him as one of the perpetrators of the crime, this was denied by the Office of the Ombudsman. Trial ensued and the trial court found Y guilty of the crime charged. CA affirmed the lower court's decision. ¥ filed an appeal with the SC arguing that the refusal of the Ombudsman to conduct a reinvestigation was tantamount to a denial of the right to due process, and claimed that he was not afforded a preliminary investigation because he was not named in the complaint PAGE 94-OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW filed by X. Was Y denied of due process when he was not afforded a preliminary investigation? A: NO. Absence of a proper preliminary investigation must be timely raised and must not have been waived. This isto allow the trial court to hold the case in abeyance and conduct its own investigation or require the prosecutor to hold a reinvestigation which, necessarily involves a re- examination and re-evaluation of the evidence already submitted by the complainant and the accused, as well as the inital finding of probable cause which lod to the fling of the information after the requisite preliminary investigation. There was no basis on the assertion Y was not afforded preliminary investigation, Y participated in the scheduled preliminary investigation conducted prior to filing the criminal case and even denied involvement in the crime, and he also never raised the issue again after the Ombudsman denied his, motion and entered a plea of not guilty and Participated in the trial, By entering his plea, and actively participating in the trial, he is deemed to have waived his right to preliminary investigation (Vilerin v People, GR No. 175289, August 31, 2011) Q: What is an inquest? A: Inquest isan informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly charged in court. (004 Department Circular No. 61, 1993) ARREST Q: When is a warrantless arrest valid and lawful? A: Lawful Warrantless Arrest 1. When IN HIS/HER PRESENCE, the person to be arrested has committed, is actually commiting or is attempting to commit an offense (IN FLAGRANTE DELICTO ARRESTS). (Rule 113, Sec. 5{a)) 2. When an offense has just been committed and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it, (DOCTRINE OF HOT PURSUIT).(Rule 113, Sec. 5(0)) Note: This doctrine is different from in flagrante delicto in the sense that this does not require the arresting officer or person to personally witness the commission of the offense. What is important is the immediacy of the arrest reckoned from the commission of the crime, However, it is not enough that the arresting officer had reasonable ground to believe that the accused had just committed a crime; a crime must, in fact, have been committed first and that the arresting officer knows for a fact that it has been committed. (Comerciante v. People, G.R. No. 205926, 2015) Note: The standards for evaluating the factual basis supporting a probable cause assessment fare not less stringent in warrantless arrest situation than in a case where a warrant is sought, from a judicial officer. The probable cause determination of a warrantless arrest is based on information that the arresting officer possesses at the time of the arrest and not on the information acquired later. (People vs. Pestilos, GR No. 182601, 2014) 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another [Escaped Prisoner}. (Rule 113, Sec. 5c) PAGE 95.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 4, When a person who has been lawfully arrested escapes or is rescued (Rule 113, Sec. 13) 5. By the bondsman for the purpose of surrendering the accused (Rule 113, Sec. 23) 6.Where the accused released on bail attempts to leave the country without permission of the court (Rule 114, Sec. 23) Q: What are the requisites to constitute a valid arrest in flagrante delicto? What are the effects. of such a valid warrantless arrest? A: To constitute a valid in flagrante delicto arest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, oF is. attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. (Martin Villamor v. Victor Bonaobra, G.R. No. 200396, 2017) A valid warrantless arrest gives the officers the right to search the area for objects relating to the crime and seize them only if they are in plain view. In the course of their lawful intrusion, if items plainly visible were discovered, the police officers. would be justified in seizing them. A valid warrantless arrest means that the search and seizure that resulted from it are likewise lawful The objects obtained from such lawful search and seizures are admissible in evidence. (Saraum v. People, G.R. No. 205472, 2016) Q: Are routine baggage inspections conducted by port authorities, done without a search warrant, unreasonable per se? Is it the same as a customs search? ‘A: With port security personnet’s functions having the color of state-related functions and deemed agents of government, the Bill of Rights applies in this case, Searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to routine security procedures in airports. ‘The reason behind tis that there Is a reasonable reduced expectation of privacy when coming into airports or ports of travel Travelers are often notfed through airport pubic address systoms, signs and notices intel aiine tckets thet tney are subject to search and, i ny prohibited materials or substances are found, such Would bo subject to. seure. These announcements place psssengers on notice thal Grtinary. constitutional protections against warrantless searches and seizures donot apply 10 rouline ator procedures It is also important to note that routine baggage inspections are different from a customs search, Although customs searches usually occur within ports or terminals, it is important that the search must be for the enforcement of customs laws. (Dela Cruz v. People, G.R. No. 209387, 2015) @: Is consent considered invalid if it is premised on one’s belief that there are no prohibited items in his bag? A: One's belief that no incriminating evidence would be found does not automatically negate valid consent to the search when incriminating items are found. His or her belief must be measured against the totality of the circumstances. (Dela Cruz v. People, G.R. No 209387, 2016) Q: What are the requisites of a valid warrant of arrest? A 1. The arrest warrant must be issued upon probable cause. 2. Probable cause must be determined personally by a judge. 3, There must be an examination under oath or affirmation of the complainant and the witnesses he may produce. 4. The warrant must particularly describe the person to be seized. (Tabujara Ill v. People, G.R. No, 175162, 2008) PAGE 96 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: May the defense file a motion for judicial declaration of probable cause when a warrant of arrest or a commitment order has already been issued or when arraignment has already been set? ‘A: No. The motion shall be denied by the courts. Section 6 of Rule 112 specifically provides that before a warrant of arrest or a commitment order may be issued by the judge, there must first be a judicial determination of probable cause by the judge himself. In one case, it was held that a ‘motion for judicial dectaration of probable cause is moot and academic when a warrant of arrest is subsequently issued. (Hao v. People, G.R. No. 183345, 2014) Q: How is an arrest made? i 1. By actual restraint of the person tobe arrested; or 2. By hishher submission to the custody of the person making the arrest. (Rule 113, Socs. 1- 2 Q: What is the effect of the failure to raise an objection to the irregularity of arrest before arraignment? A (DEL CASTILLO): An accused is estopped from assailing any irregularity of his arrest if he fails to ‘aise this issue or to move for the quashal of the information against him on this ground before arraignment. Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the objection is deemed waived. (Salvador V. Rebellion v. People, G.R. No. 175700, 2010) Q: X was caught through a buy-bust operation for selling shabu wherein she was convicted for the same. She insists that the warrantless arrest, search and seizure carried out by the police offers was illegal since they meroly ‘suspected her to have committed a crime. She further alleges that the evidence recovered from her had no evidentiary value for the failure of the buy-bust team to photograph the seized shabu in the presence of a media representative, the DOJ, and any elected Public official. Was X’s warrantless arrest valid? A (DEL CASTILLO): YES. In cases involving the illegal sale of dangerous drugs, “credence should be given to the narration of the incident by the prosecution witnesses, especially when they are Police officers who are presumed to have performed their duties in a regular manner, unless, there is evidence to the contrary. Here, X was arrested after committing a criminal offense that resulted from a successful buy-bust operation. Having been apprehended in lagrante delicto, the Police officers were not only authorized but were ‘even duty-bound to arrest her even without a warrant. Besides, X's objection to the evidence's admissibility must have been manifested prior to entering her plea, otherwise, it is deemed waived. (People v. Gloria Nepomuceno y Pedraza, G.R. ‘No. 194999, February 9, 2015) F. BAIL Q: What is Bail? A: It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (Rule 114, Sec. 1) Q: What are the forms of ball? A: These are: Corporate surety; Property bond; Cash deposit; and Recognizance. (Rule 114, Sec. 1) 1 2. 3, 4 PAGE 97 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: When is a person under custody of the law? ‘A: A person is “in the custody of law” when he has been arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. As bail is, intended to obtain or secure one's provisional liberty, he same cannot be posted before the court has acquired custody over him. Upon assumption (of the obligation of bail, the sureties become in law the jailes of thei principal. (People v. Gako, G.R. No. 135045, December 15, 2000) Q: When is bail a matter of right? & Before or after conviction by the MTC; and Before conviction by RTC for all offenses punishable by a penalty lower than reclusion pempetua, death, of life imprisonment. (Rule 114, Sec. 4) Q: When is bail a matter of discretion? 1. Before conviction, in offenses punishable by death, rectusion perpetua or life imprisonment 2. After conviction by the RTC of a non-capital offense. (Rule 114, Sec. §) Q: What are the bail-negating circumstances? A: If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shail be denied bail or his bail be cancelled upon ‘a showing by the prosecution of the following 1. Accused is a recidivist, quasi-recidivist or habitual delinquent or has committed the crime aggravated by the circumstance of reiteration; (Recidivist] 2. That he has previously escaped from legal confinement, evaded sentence or violated the Condition of his bail without valid justification; [Escaped] 3. That he committed the offense while under probation, parole or conditional pardon; [Probation] 4. That the circumstances of his case indicate the probability of fight if released on bail; [Flight-risk} or 5. That there is undue risk that he may commit another crime during the pendency of the appeal. [Crime-risk] (Rule 114, Sec. 5) Q: What is the rule on bail pending appeal when the conviction by the RTC is punishable by imprisonment exceeding 6 years but not more than 20 years? ‘A: Two scenarios under Rule 114, Sec. 5 1. Ifthe accused is convicted and sentenced by the RTC to imprisonment exceeding 6 years but not more than 20 years AND none of the above circumstances (recidvist, etc.) is present, the grant of bail is a matter of discretion. The court may or may not grant ba. 2, Ifthe accused is convicted and sentenced by the RTC to imprisonment exceeding 6 years but not more than 20 years AND one or more of the above circumstances (recidivist, et.) is present, bail should be denied. (Leviste v. CA, G.R. No. 189122, 2010) Q: When is hearing for bail mandatory? A: Although in theory, the only function of bailis to ‘ensure the appearance of the accused at the time set for the arraignment and trial; and in practice, bail serves the further purpose of preventing the release of an accused who may be dangerous to society or whom the judge may not want to release, a hearing upon notice is mandatory before the grant of bail, whether bail is a matter of right or discretion. With more reason is this true in, criminal prosecutions of a capital offense, or of an offense punishable by reclusion perpetua or life imprisonment. Even if the accused did not file an application for bail and even if the public prosecutor had recommended bail, a hearing should still be hel. ‘Such hearing is separate and distinct from the initial hearing to determine the existence of probable cause. (Atty. Franklin G. Gacal v. Judge Jaime |. Infante, A.M. No. RTJ-04-1845, 2011) PAGE 98 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the duties of trial judge in a petition for bail in offenses punishable by reclusion perpetua, life imprisonment, or death? - 1. Inall cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses. to present evidence to show that the guilt of the accused is strong for the purpose of entabling the court to exercise its sound discretio 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Enrile v. Sandiganbayan, G.R. No. 213847, 2015) Q: What are the conditions for bail? 1. The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; 2. The accused shall appear before the proper court whenever required by the court of these Rules; 3. The failure of the accused to appear at the trial without justification and despite due natice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and 4. The bondsman shall surrender the accused to the court for execution of the final judgment. (Rule 114, Sec. 2) Q: Is arraignment required before the granting of bail? ‘A: No. Bail does not require arraignment. As long as there is deprivation of liberty or voluntary surrender, one can apply for bail. (Serapio v. Sandiganbayan, G.R. No. 148468, 2003) The trial court could ensure the presence of the accused at the arraignment precisely by granting ball and ordering his presence at any stage of the proceedings such as arraignment. (Rule 114, Sec. 2 Requiring arraignment would place the accused in @ position where he has to choose between 1) fling a motion to quash and thus delay his release (on bail and; 2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereatter be released on bail, These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid ‘complaint or information sufficient to charge him with a crime and his right to bail. (Lavides v. Court of Appeals, G.R. No. 129670, 2000) Q: Is the application for bail a bar to objections on illegal arrest, lack of or irregular preliminary investigation? ‘A: Bail is not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for admission to bail shall not bar the accused from: 4. Challenging the validity of his arrest; or 2. The legality of the warrant issued therefore; or 3. From assailing the regularity or questioning the absence of a preliminary investigation of the charge against him. PROVIDED: That the accused raises them before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case. (Rule 114, Sec. 26) PAGE 99. OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What happens when an accused who is granted bail fails to appear before the court who requires his appearance? ‘A: When bail is granted, the accused must appear whenever the court requires his presence; otherwise, his bail shall be forfeited. This authorizes the court to cancel the bail bond. Any ‘motion for bail pending appeal will also be denied because of violation of the conditions of the previous bail. Once an accused escapes from prison or confinement, jumps bail or flees to 2 foreign country, he loses his standing in court Unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek relief from the court. (People v. Piad, G.R. No. 213607, 2016) Q: Under R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006), is the child in conflict with the law entitled to bail? A: Yes. The child has a right to bail and recognizance or to be transferred to a youth detention home / rehabilitation center. The court cannot order the child's detention in a jail pending trial or hearing. (Sec. 35, RA. No. 9344) Q: Will a clear showing of fragile health justify admission to bait? A: Yes. A clear showing of fragile health justifies, one's admission to bail. The court recognizes the country’s responsibility to the international community which arises from the Universal Declaration of Human Rights. This national ‘commitment to uphold the fundamental human rights as well as value the worth and dignity of every porson has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or @ danger to the community; and (2) that there exist special, humanitarian and compelling circumstances. (Enrile v. Sandiganbayan, GR. No. 213847, 2015) ‘G. ARRAIGNMENT AND PLEA What is an arraignment? A: Arraignment means the proceeding in a criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information. (People v Pillado, G.R. No. L- 7264, 1954) Q: When should arraignment be held? A: Accused should be arraigned within 30 days from the date the court acquires jurisdiction over ‘son, unless 2 shorter period is provided for by law, The time of the pendency of a motion to quash or a bil of particulars or other causes justifying suspension of arraignment shall be ‘excluded in computing the period. (Rule 116, Sec, ual) Q: What are the instances where the law provides a shorter period of time’ A 1. When an accused is under preventive detention, his case should be raffled within 3 days from fling and accused shall be arraigned within 10 days from receipt by the judge of the records of the case. [R.A. 8493 Speedy Trial Act} 2. Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without olay. [R.A. 4908] 3. Cases under R.A. 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment. Cases under the Dangerous Drugs Act. 5. Cases under SC AO 104-86, i.c., heinous crimes, violations of the intelectual Property Rights Law, these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be cided within 30 days from the submission of the case. PAGE'100 OF 157 neATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is plea bargaining? A: Plea Bargaining is the process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to the court's approval. It usually involves the defendant's pleading quity to a lesser offense or to only one or some of the counts of a multi-count indictment in retum for a lighter sentence than that for the graver charge. (Daan v. Sandiganbayan, G.R. No. 163972-77, 2008) NOTE: Acceptance of an offer to plead guilty is not ‘a demandable right but depends on the consent of the offended party and the prosecutor. Its further addressed to the sound discretion of the trial court (Estipona v. Lobrigo, G.R. No. 226679, 2017) Comprehensive prohibits plea Is this valid? @: Section 23 of the Dangerous Drugs Act bargaining in drugs case ‘A: NO. This is unconstitutional for being contrary to the rule-making authority of the Supreme Cour, siven that plea bargaining is a rule of procedure which only the Supreme Court has the sole prerogative to allow or disallow. (Estipona v. Lobrigo, G.R. No. 226679, 2017) Q: When may accused enter a plea of guilty to a lesser offense? a Plea to Lesser Offense During Arraignment. During arraignment, the accused may enter a plea of guilty to a lesser offense PROVIDED there is consent of the offended party AND of the prosecutor to the plea of guilty 1o a lesser offense that is necessarily included in the offense charged. ‘The accused may also enter a plea of guilty to a lesser offense if the offended party was notified and did not appear in the arraignment of the accused. (Rule 116, Sec. 2) Plea to Lesser After Arraignment But Before Trial. After arraignment but before trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his previous plea of not guilty. No amendment to the complaint or information is necessary. (Rule 116, Sec. 2) Plea to Lesser Offense after Trial Has Begun. Alter the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evidence to establish the guilt of the accused for the crime charged. The judge cannot ‘on its own grant the change of plea. (People vs. Keyanan, G.R. No. L-39355, 1978) What should the ruling on the motion to plead guilty to a lesser offense contain? he ruling on the motion must disclose the strength and weaknesses of the prosecution's evidence. Absent any finding on the weight of the evidence on hand, the judge’s acceptance of the defendant's change of plea is improper and inregular. (Estipona v. Lobrigo, G.R. No. 226679, 2017) What should the court do when the accused pleads guilty to a capital offense: A 1. Conduct a searching inquiry into the voluntariness and full comprehension of the ‘consequences of the plea. 2. Require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused. 3. Ask the accused if he desires to present evidence in his behalf and allow him to do so it he desires (Rule 116, Sec. 3) Q: What are the grounds for suspension of arraignment? A: 1. There exists a prejudicial question 2. Accused appears to be suffering trom an unsound mental condition which renders him Unable to understand the charge against him and to plead intelligently thereto, 3. There is a petition for review pending before the DOJ or Office of the President, however the period of suspension shall not exceed 60 days counted from the filing of the petition for review. PAGEMOt OF 157ATENEO CENTRAL BAR OPERATIONS 2018 White the pendency of a petition for review is @ ground for suspension of the arraignment, the Rules on Criminal Procedure limits the deferment of the arraignment to a period of 60 days reckoned from the filing of the petition with the reviewing office. It follows, therefore, that after the expiration Of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment. The trial court has to set the date of arraignment even before the lapse of 60 days. (Aguinaido vs. Ventus, G.R. No. 176033, 2045) 1H. MOTION TO QUASH Q: What are the grounds for a motion to quash? A 1. Facts charged do not constitute an offense 2. Court has no jurisdiction over offense charged 3. Court has no jurisdiction over the person of the accused 4. Officer who filed the information had no authority to do so 5. Does not conform substantialy to the prescribed form 6. More than one offense is charged except when a single punishment for various offense is prescribed by law 7. Criminal action or tiabilily has been extinguished by prescription 8. Contains averments wic, if true, would constitute a legal excuse o justification 9. Accused has been previously convicted oF acquited of offense. charged, or case has been dismissed or otherwise terminated w/o the express consent of the accused (double jeopardy). (Rule 117, Soc 3) ‘An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. (People v. Salazar, G.R. No. 181900, 2010) REMEDIAL LAW Q: Is the personal examination of the complainant and his witnesses by the judge mandatory in finding probable cause for the issuance of a warrant of arrest? Would lack of this examination be a valid ground to quash the warrant? ‘A: No. What the Constitution underscores is the ‘exclusive and personal responsibilty of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established d shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscat's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven v. Makasiar, G.R. No. 825885, November 14, 1988) Q: Distinguish Motion to Quash from Demurrer, to Evidence. A: Creda a TT Bo) avers Filed before the| Filed afer the defendant enters. his | prosecution has rested plea lis case ‘Does not require prior | May be filed either wi) leave of court oF wlo leave of court Based on matters | Predicated upon found on _the | matters outside of the complaint ‘r | complaint or information such as the evidence or lack of it T granted, damissal | if granted, 1 deemed of the case will not] an acquitial of the necessarily folow | accused | [See Sections § and 6 Of this Rule, where another complaint or information may be | information PAGE 102 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW filed by order of the court) If denied by grave | If denied, shall not be abuse of discretion, | reviewable by appeal then certiorari or | or certiorari before prohibition lies judgment but may be reviewable via Rule 65 (Choa v. Choa, G.R. No. 143376. ‘November 26, 2002). Q: Is the filing of a Demurrer without express leave of court a waiver of the accused’s right to present evidence? ‘When the accused files such motion to dismiss without express leave of court, he WAIVES the Fight to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.” The RTC did not need to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to evidence without first obtaining express leave of court effectively waived her right to present her evidence. (People ¥. Cristobal, G.R. No. 159450, 2011) Q: Whatis the primary test in deciding whether @ motion to quash must be sustained on the ground that the complaint or information charges no offense? ‘A: The fundamental test in determining whether a motion to quash may be sustained based on this ground is whether the facts alleged, if HYPOTHETICALLY ADMITTED, will establish the essential elements of the offense as defined in the law. Extrinsic matters or evidence aliunde are not considered. (Herminio Disini v. Sandiganbayan, G.R. Nos. 169823-24, 2013) Q: What is the effect of sustaining a motion to quash? A EXTIES Gia Facts charged do not | » Court may order constitute an offense that another Officer who filed the} information be information had no] filed or an authority to do so amendment Mt does not conform | thereof be made substantially to the prescribed form ‘= More than one offense is, charged _ _ = Criminal action or} Court must liability has been | state, in its order extinguished the * Averments would the release of the accused if he is, constitute a legal excuse or justification * Accused has been| _ in custody or the previously convicted or} cancellation of acquitted of the offense | his bond if he is charged on bail = Court cannot order a new complaint or information ‘= Court has no jurisdiction | Court should over the offense remand or forward Court has no jurisdiction | the case to the ‘over the person of the | proper court, not accused to quash the complaint or information (Rule 197, Secs. 5-6) PAGE 103.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What happens when the court 1) orders a new complaint or information to be filed and 2) does not orderiorders but no new information is filed? Dr Tea ag NNR sais Ome) Neveu aCd FILED The accused, if in custody, shall be discharged unless. he Is also in custody for another charge ote OL) Ne The accused, ifn custody, shall not be — discharged unless admitted tobail (Rute 17 Q: What is the remedy of the accused should the motion to quash be denied? A: A patition for certiorari is not the proper remedy absent any showing of arbitrariness. The remedy is for the movant to go to trial without prejudice to reiterating the defenses invoked in the motion to quash. In case of conviction, he may appeal and assign as error the denial of the motion to quash. (Lalican v. Vergara, G.R. No. 108619, July 31, 1997) Q: What are the requisites required to invoke double jeopardy? rt 1. First jeopardy must have attached 2. Accused must have been convicted or acquitted, or the case against him was dismissed or terminated without his ‘express consent b. Made by 2 court of competent jurisdiction ©. Valid complaint or information d. Accused has been arraigned 2. First jeopardy must have been validly terminated 3. The second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt or frustration thereof. (Rule 117, Sec. 7) Q: What are the requisites of a provisional dismissal? Consent of the prosecutor Consent of the accused; Notice to the offended party; and Public prosecutor is served with a copy of the order of provisional dismissal. (Rule 117, Sec. 9) AeRap Q: Are there exceptions to the general rule on. provisional dismissals? A: Yes. The general rule provides that 2 criminal case that results to an acquittal with the consent or upon motion of the accused will not consiitute double jeopardy. The exceptions would include the following 1. Insufficiency of evidence 2. Denial of the right to a speedy trial (Philippine Savings Bank v. Bermoy, G.R. No. 151912, September 26, 2005) @: When does the provisional dismissal become permanent? A: The provisional dismissal shall become permanent if not revived within: Caray CNR pant If penalty is 6 years and below, or a fine of any ‘amount, of both i Penaily exceeds 6 years. 1 year after issuance of order 2 years afier issuance of order One year shall start from the receipt of the prosecutor of the order of provisional dismissal If no reinstatement is made within the period, the accused can no longer be prosecuted. (Rule 117, Sec. 8) PAGE 104 OF 157,ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When can the State revive a case provisionally dismissed with consent of the accused? ‘A: When a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived by the State within the time prescribed by the rules. There is no violation of, due process as long as the revival of a provisionally dismissed complaint was made within the time-bar provided under the law. (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 2015) 1. PRE-TRIAL Q: Where is pre-trial mandatory? A: Itis mandatory in: 1. Sandiganbayan 2. Regional Trial Court 3. Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, Municipal Circuit Trial Court (Rule 118, Sec. 1) Q: What are the purposes of pre-trial? A To simpify the issues 2. To shape up the testimonial and documentary evidence 3. To clear the desks for trial Pretrial is not a mere technicality in court proceedings for it serves a vital objective: the simplification, abbreviation, and expedition of trial, if not indeed its dispensation. (Tolentino v. Heirs of Laurel-Ascalon, G.R. No. 181368, 2012) Q: What are the matters considered during pre- trial? ‘A: The matters considered in a pre-trial are: 1. Plea bargaining 2. Stipulation of facts 3. Marking for identification of evidence 4. Waiver of objections 0 admissibilly of evidence Modification of the order of tral if the accused admits the charge but interposes a lawful defense 6 Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case (Rule 118, Sec. 1) All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties and/or their counsels. (/-8/9), A.M. No, 03-1-09-SC) : Who is in charge of questioning in pre-trial? ‘A: During the pre-trial, the judge shail be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between parties. (I-B{7], A.M. No. 03-1- 09-SC) J TRIAL What are the instances when presence of the accused Is required by law? ‘A: Accused is required to be present during: At arraignment and plea, whether of innocence or of guilt; 2.During trial, whenever identification purposes; 3.Whenever required by the court for purposes of identification; and at 4.Promulgation of sentence. Exception: In light offenses, when the accused may appear by counsel or representative. (People v. De Grano, G.R. No. 167710, 2009) necessary for Q: What is a demurrer to evidence? ‘A: A motion to dismiss filed by the accused after the prosecution has rested its case; the grounds being insufficiency of the evidence of the prosecution.(Sec, 23, Rule 119, Revised Rules of Criminal Procedure) PAGE 105(0F 157:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Whatis the effect of the denial of a demurrer to evidence? Pred Cora Pe od Cos |Accused may still] Accused waives the adduce evidence inis|right —to_present defense evidence and submits the case for judgment (Rule 179, Sec. 23) — Q: What is the difference of a demurrer to I case and a criminal case? Bass SS Based on plaintiff's | Predi upon failure to prove his | insufficiency of entitlement to relief | evidence Requires no prior | May be filed wl or wlo leave of court leave of court Defendant may still | Accused may adduce adduce evidence if| evidence only if the denied demurrer was filed w! leave of court Plaintiff may appeal i| No appeal i granted granted, and if reversed, defendant is deemed’ to have waived his right to present his evidence [Ttisthe defendant who | The cour may, ia is invokes a demurrer by | own initiative, dismiss moving for the | the action after giving dismissal of the case. | the prosecution an The court does not do | opportunity to be hear Lsoinits own initiative | (Rule 119, Soc. 33) Is a grant of demurrer appealable? ‘A (DEL CASTILLO): In criminal cases, the grant of a demurrer is tantamount to an acquittal and the dismissal order may not be appealed because this would place the accused in double jeopardy. The dismissal order is not subject to appeal; however, itis still reviewable but only through certiorari under Rule 65 of the Rules of Court. For the writ to issue, the trial court must be shown to have acted with grave abuse of discretion ‘amounting to lack or excess of jurisdiction such as where the prosecution was denied the opportunity to present its case or where the trial was a sham thus rendering the assailed judgment void. The burden is on the petitioner to clearly demonstrate that the trial court blatantly abused its authority to @ point so grave as to deprive it ofits very power to dispense justice. (People v. Sandiganbayan and Manuel Barcenas, G.R. 174504, 2011) Q: What are the requisites of a Trial in Absentia? A: Requisites of a Trial in Absentia: 1. Accused has already been arraigned 2. Accused has been duly notified of the trial or hearings 3. Absence of the accused is unjustified (People v. Salas, 227 Phil, 152 [1986)) Q: What are the requisites for an accused to be discharged to be a state witness? A: The following elements must concur: 1, There is absolute necessity for the testimony of the accused whose discharge is requested 2. No other direct evidence available for the prosecution 3, Testimony of said accused can be substantially corroborated in its material points 4, Accused does not appear to be the most guilty; AND 5. Accused has never been convicted of moral turpitude. (Rule 119, Sec. 17) PAGE 106 OF 157° |ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: What are the effects of discharge of accused as state witness? A: Unless the accused fails or refuses to testify against his co-accused in accordance w/ his sworn statement constituting the basis for his discharge, the discharge shall operate as: 1. An acquittal on the case; AND 2. Abar to future prosecution for the same offense. (Rule 119, Sec. 18) Q: What is meant by “absolute necessity” of the testimony of the accused as a condition to bea state witness? A: Absolute necessity exists for the testimony of ‘an accused sought to be discharged when he or she alone has knowledge of the crime. In more concrete terms, necessity is not there when the testimony would simply corroborate or otherwise strengthen the prosecution's evidence. The requirement of absolute necessity for the testimony of a state witness depends on the circumstances of each case regardless of the ‘number of the participating conspirators. (Jimenez v. People, G.R. No. 209195, 2014) Q: What is meant by the “accused does not appear to be most guilty” as a condition to be a state witness? ‘A: By jurisprudence, "most guilty” refers to the highest degree of culpability in terms of participation in the commission of the offense and does not necessarily mean the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered to have lesser or the least guilt taking into account his degree of participation in the commission of the offense. (Wimenez v. People, G.R. No. 209195, 2014) Q: What are covered by the right against set incrimination? ‘A: The constitutional right of an accused against selt-incrimination proscribes the use of physical or ‘moral compulsion to extort communications from the accused and not the inclusion of his body in ‘evidence when it may be material, Thus, cases where non-testimonial compulsion has been allowed reveal that the pieces of evidence obtained must be material to the principal cause of the arrest. In one case, since the urine sample for drug testing is immaterial to the charge of extortion, there is a violation against right to self- incrimination. The evidence is inadmissible. (Dela Cruz v. People, G.R. No. 200748, 2014) Q: Is assistance by counsel mandatory in administrative cases? ‘A: There is no law, jurisprudence or rule which, ‘mandates that an employee should be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not indispensable in administrative proceedings. (Perez v. People, G.R. No. 164763, 2008) Q: Does the counsel de oficio’s failure to attend one court hearing constitute a violation of the right of the accused to counsel? ‘A: Not necessarily. In the case of Ibanez v. People, since the beginning of the proceedings in the trial court until the fling of the petition before the Supreme Court, three counsel de oficio were appointed to represent the accused. Their counsel de oficio actively participated in the proceedings before the trial court including the direct and cross- ‘examination of the witnesses. The accused were duly represented by a counsel de oficio all throughout the proceedings except for one hearing when their court appointed lawyer was absent. Going by the records, there was no indication that any of the counsel de oficio had been negligent in protecting the accused's interests. The counsel de Oficio kept on attending the trial court hearings in representation of the accused despite the latter's unjustified absences. The Court was not persuaded that the absence of the counsel de Cficio in one of the hearings of amounts to a denial Of right to counsel. Nor does such absence warrant the nulification of the entire trial court proceedings and the eventual invalidation of its ruling. (Ibanez v. People, G.R. No. 190798, 2016) PAGE 107 OF 157:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: Must the suspect be provided with a Judgment of Acquittal counsel during police line-ups? 1. State whether or not evidence of the prosecution: ‘A: The right to counsel attaches upon the start of the custodial investigation, ie, when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused. Custodial investigation starts when the police investigation is no longer a general inguiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. (People v. Pepino, B.R. No. 174471, 2016) K. JUDGMENT Q: What are the contents of a judgment? a Judgment of Conviction 1. Legal qualification of the offense constituted by the acts committed by the accused 2. Aggravating and mitigating circumstances 3. Participation of the accused whether as principal, accomplice or accessory 4. Penalty imposed 5. Civil lability or damages, unless reserved or waived (Rule 120, Sec. 2) Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the weakness of the defense, but on the strength of the prosecution. The burden is on the prosecution to prove his innocence. (Chua v. Court of Appeals, 520 SCRA 729, 2007) {DEL CASTILLO) Judgment is not rendered defective just because of the absence of a declaration of guit beyond reasonable doubt in the dispostive Portion (D' Aigle v. People, G.R. No. 174181, June 27, 2012) a. Absolutely failed to prove guilt b. Merely failed to prove guilt beyond reasonable doubt 2. ineither case, judgment shall determine if the act or omission from which the civil liability might arise did not exist (Rule 120, Sec. 2) Note that a verdict of acquittal is immediately final (People v. Serrano, GR. No, 135451, 1999) Q: What are the rules on judgment for two or more offenses charged in the complaint or information? A: Accused may file a motion to quash. I accused fails to object to it before trial, the accused is deemed to have waived the defect and the court may convict him of as many offenses as charged and proved, and impose @ penalty for each offense. (Rule 120, Section 3) While Sec. 13 of Rule 110 frowns upon multiple offenses being charged in a single information, the failure to raise this issue during arraignment amounts to a waiver, and the objection can no longer be raised on appeal. (Abalos v. People, G.R. No, 136994, 2002) Q: What is the rule for judgment in case of variance between allegation and proof? A General Rule: The accused may be convicted only of the crime with which he is charged. Exception: Rule on Variance. When there Is variance between the crime charged and the crime proved, and the offense as charged is included or necessarily includes offense proved, the accused shail be convicted of the offense proved which is Included in the offense charged, or of the offense charged which is included in the offense proved. (People v. Chi Chan Liv, G.R. No 189272, 2015) ‘An offense charged necessarily includes the offense proved when some essential elements of the former, as alleged in the complaint or information, constitute the latter. PAGE 108 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute the latter. If there is variance, the accused can only be convicted of the lesser offense which is included in the graver offense. (People v. Pareja, G.R. No. 202122, 2014) Q: When does a judgment become final? : Judgment becomes final after: Lapse of period for appeal Sentence partially or totally served Accused waives in writing his right to appeal ‘Accused has applied for probation 1 2. 3. 4 Exception is when the death penalty is imposed (Teodoro vs. Court of Appeals and People, G.R. No. 103174, 1996) Q: What are the effects of the accused's failure to appear at the promulgation of judgment? ‘A: The accused who fails to appear at the promulgation of the judgment of conviction loses the remedies available under the Rules of Court against the judgment, specifically: (a) the fing of ‘a motion for new trial or for reconsideration (Rule 121), and (b) an appeal from the judgment of conviction (Rule 122). However, the Rules of Court permits him to regain his standing in court in order to avail himself of these remedies within 15 days from the date of promulgation of the judgment conditioned upon: (2) his surrender, and (b) his filing of a motion for leave of court to avail himself of the remedies, stating therein the reason for his absence. Should the trial court find that his absence was for a justifiable cause, he should be allowed to avail himself of the remedies within 15 days from notice of the order finding his absence justified and allowing him the available remedies from the judgment of conviction (Rule 120, Sec. 6) (Salvador v. Chua, G.R. No, 212865, 2015) Q: x, Y, and Z were charged with violation of the Forestry Code of the Philippines. During the date of promulgation of judgment, counsel of X informed the court that X and Y were ill and Z was not notified of the scheduled REMEDIAL LAW promulgation, but court found their absence inexcusable and proceeded to promulgate the decision as scheduled wherein they were found guilty. Their bail bonds were cancelled and warrants of arrest were issued against them. X, ¥, and Z questioned the validity of the promulgation. CA granted the petition for certiorari and acquitted X, while ordered the re- promulgation of the decision in the presence ‘of Y and Z. SC reversed the acquittal and reinstated the decision of the RTC. Is the promulgation valid despite the absence of X, Y, and Z? A; (DEL CASTILLO) Yes. There was no reason to postpone the promulgation because the absence of X, Y, and Z was unjustifiable, there was no abuse of discretion which could be attributed to the RTC in promulgating the decision despite the absence of the accused. According to Administrative Circular No. 16-93, when the CA or SC affirmed the decision of the lower courts, there is no more deed to require convicts to appear before the trial courts for promulgation of the affirmance or modification by the SC or CA of judgments of conviction. (Almuete v. People, G.R. — No. 179611, March 12, 2013, En Banc) L. NEW TRIAL OR RECONSIDERATION, Q: What are the grounds for new trial? ‘A: A motion for new trial may be filed upon any Of the following grounds: 1. Errors of law during trial 2. Irregularities prejudicial to the substantial rights of the accused during trial 3. New and material evidence has been discovered NOTE: A new trial can be granted only 1. On motion of the accused; or 2. On motion of the court but with the consent of the accused The rule does not provide for a motion for new trial by the prosecution as the reopening of the case would result in double jeopardy. PAGE 109 OF 157:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW : What are the grounds for reconsideration? A: A motion for reconsideration may be filed ‘upon any of the following grounds: 1. Errors of law. 2. Errors of fact in the judgment. Note: Requires no further proceedings Q: When may a new trial be granted on the basis of newly discovered evidence? A; The following elements must concur 1. New evidence discovered after trial 2. Iteould not have been previously discovered and produced at the trial even with reasonable dtigence Itis new and material evidence 4. If introduced and admitted, it would probably change judgment (Ybiernas v. Tanco- Gabaldon, G.R. No. 179825, 2011) NOTE: A new trial may not be had on the basis of evidence which was available during trial but was not presented due to its negligence. (People v. Senit, G.R. No. 192914, 2016) Q: Does the Neypes Rule apply to criminal cases? A: YES. A party shall have a fresh period of 15 days to file a notice of appeal to the RTC from receipt of the order denying a motion for new trial ‘or motion for reconsideration. (Neypes vs. CA, G.R_No. 141524, 2005) This rule applies in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure. (Yu vs. Tatad, G.R. No. 170979, 2011) Mi, APPEAL Q: Who may appeal? A: Any party may appeal from a judgment or final Corder, unless the accused wil be placed in double jeopardy. Note that since the rule refers to ‘any party,” the prosecution may appeal provided the accused will not be placed in double jeopardy. (Sec. 1, Rule 122, Revised Rules on Criminal Procedure) Q: Can the prosecution appeal a judgment of acquittal? A: The prosecution cannot appeal from a judgment of acquittal because 2 1 of that rrature is immediately final and to try him on the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense. (Central Bank of the Phils. v. CA, GR. No, 41859, 1989) Despite acquittal, however, either the offended party or the accused may appeal, but only with respect tothe civil aspect of the decision, Or, said judgment of acquittal may be assailed through a petition for certiorari under Rule 68 of the Rules of Court showing that the lower court, in acquitting the accused, committed not merely reversible errors of judgment, but also exercised grave abuse ‘of discretion amounting to lack or excess of jurisdiction, or a denial of due process, thereby rendering the assailed judgment null and void (AAA v. CA, G.R. No. 183652, 2015) @: What happens when the accused appeal a Judgment? ‘A: Inan appeal by an accused, he waives his right not to be subject to double jeopardy. An appeal in 2 criminal case opens the entire case for review on any question including one not raised by the parties. (People v. Reynaldo Torres, G.R. No. 189850, 2014) PAGE 110 OF 157 |ATENEO CENTRAL BAR OPERATIONS 2018 : What is the effect of an appeal by any of several accused? ‘A: An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate ccourt is favorable and applicable to him, ‘Appeal of the offended party of the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. Upon perfection of appeal, the execution of Judgment or final order appealed from shall be stayed as to the appealing party. (Rule 122, Sec. 14) Q: In a robbery with homicide case, X is the accused and was convicted by the trial court with only murder for having failed to establish his intent to rob the victim. On appeal, the CA modified X’s conviction to robbery with homicide. He, now raises the defense that his acquittal from the robbery charge should not have been reviewed by the CA because he only appealed his conviction for his murder charge. Did the CA commit any error in reviewing X's conviction? ‘A: (DEL CASTILLO) NO. In an appeal by an accused, he waives his right not to be subject to double jeopardy. An appeal in a criminal case ‘opens the entire case for review on any question including one not raised by the parties. Thus, when X appealed the RTC’s judgment of conviction for murder, he is deemed to have abandoned his right to invoke the prohibition on double jeopardy since it became the duty of the CA to correct errors that may be found in the appealed judgment. (People v. Torres, G.R. No. 189850, September 14, 2014) REMEDIAL LAW N. SEARCH AND SEIZURE Q: What is the nature of a search warrant? : A search warrant is an order in writing issued in the name of the People of the Philippines, signed by the judge and directed to a peace officer, ‘commanding him to search for personal property described therein and bring it before the court (Rule 126, Sec. 1) isan application for a search warrant a criminal action? A: No. Awarrant such as a warrant of arrest or a search warrant merely constitutes process. Its in the nature of a criminal process askin to a wrt of discovery. It is a speacial and peculiar remedy, drastic in its nature, and made necessary because of a public necessity. In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, such warrant'is definitively considered merely as a process, generally issued byt a court in the exercise of its ancillary jurisdiction. (Plipinas Shell Petroleum Corp., et al. v. Romars International Gases., G.R. No. 189669, 2015) Q: When can a search warrant or warrant of, arrest be issued? A: No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and. particularly describing the place to be searched and the persons or things to be seized. (Phi. Const. art. Il, § 2) Q: What are the purposes of the constitutional provision against unlawful searches and seizure? To prevent the officers of the law from violating private security in person and property and illegally invading the sanctity of the home; and give remedy against such usurpations when attempted ‘or committed. (PLDT v. Razon, G.R. No. 179408, 2014) PAGE 111 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 Q: How must be the place described in order for a warrant to be issued? A: A description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the ‘community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. (Laud v. People, G.R. No. 199032, 2014) Q: When does a search warrant particularly describe the things to be seized? A: The description therein is as specific as the circumstances will ordinarily allow (People v. Rubio, 57 Phil, 384, 1932) ‘The description expresses a conclusion of fact-not of law- by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.) or Things described are limited to those which bear ct relation to the offense for which the warrant is being issued. (Sec. 2, Rule 126, Revised Rules of Court; Laud v. People, G.R. No. 199032, 2014) Q: Where is the application for search warrant filed? ‘A: General Rule: Before any court wlin whose territorial jurisdiction a crime was committed. (De Joya v. Marquez, citing Regalado, Remedial Law ‘Compendium, Vol. 1, pp. 7-9; Sps. Marimla v. People, G.R. No. 158467, 2009) Exception/s: 1, Before any court wiin the judicial region where the crime was committed if the place of the crime is known. (AM. No. 00-5-03-SC as cited in Sps. Marimla v. People, G.R. No. 158467, 2009) 2. Before any court wiin the judicial region where the warrant shall be enforced. (A.M. No. 00-5-03- SC as cited in Sps. Marimia v. People, G.R. No. 158467, 2009) REMEDIAL LAW Note: In both exceptions, filing in such courts requires compelling reasons stated in the application, 3. Application shall be made only in the court where the criminal action is pending, if criminal action has already been filed. (Sec. 2, Rule 126, Revised Rules of Criminal Procedure) Q: What are the exceptions in the Search Warrant requirement? A: Search warrant is not required in the following instances: 1. Search incidental to tawul arrest Seizure of evidence in “plain view" Search of a moving vehicle Consented warrantless search Customs search Stop and frisk (Terty searches) Checkpoints Exigent and emergency circumstances Search of vessels and aircraft 410. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations (People v. Bacla-an Lapitaje, G.R. No. 132042, February 19, 2003) ©eNopsen Q: Is omission of the People of the Philippines. in a petition for certiorari questioning the issuance of a search warrant a fatal defect? ‘A: The omission of the People of the Philippines, from the petition was fatal. A search warrant is not similar to a criminal action but is rather a legal process that may be likened to a writ of discovery ‘employed by no less than the State to procure relevant evidence of a crime. In that respect, it is an instrument or tool, issued under the State's police power, and this is the reason why it must issue in the name of the People of the Philippines. If one wishes to contest the finding of probable cause of any other aspect of the issuance of the ‘search warrant, then he must implead the entity who in legal contemplation made the finding and in whose name the finding was made; otherwise, there can be no final determination of the case because the party indispensable to its resolution, had been omitted. (Te v. Breva, G.R. No. 164974, 2015) PAGE 112 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 ‘0. PROVISIONAL REMEDIES: I 1 : What are the provisional remedies available to criminal cases? REMEDIAL LAW A: These are: ‘Attachment (Rule 57) Injunction (Rule $8) Receivership (Rule 59) Replevin (Rule 60) ‘Support pendent lite (Rule 61) To avail of a provisional remedy in a criminal action, it must be one with a corresponding civil liability, which must be one arising from the offense charged. If the civil action has been waived, reserved, or instituted separately, a provisional remedy may not be availed of in the criminal action. Instead, the provisional remedy should be applied for in the separate civil action instituted, (Rule 127, Sec. 1) Q: When is attachment proper? A - 1. Accused is about to abscond from the Philippines; 2. Criminal action is based on a claim of money or property embezzled or fraudulently misapplied or converted; 3. When the accused has concealed, removed, (or disposed of his property, or is about to do 0; and 4. When the accused resides outside the Philippines. (Rule 127, Sec. 2) Note that under R.A. 9208, in cases of trafficking in persons, the court may motu propio issue attachment and injunction. PAGE 113 OF 157:ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Vill, RULES ON EVIDENCE Q: What are the rules on waiver of the Rules on Evidence? A: When an otherwise objectionable piece of evidence is not objected to, the evidence becomes admissible because of a waiver. However, when the waiver amaunts to a transgression of the law, principles of morality, good customs and public Policy or when the rights of third persons are violated, then there can be no waiver. Q: What are not covered under the Rules on Evidence? [NICOLE] A: Naturalization Proceedings Insolvency Proceedings Cadastral Proceedings Other cases as may be provided for by law Land Ragistration Cases 6 Election Cases (Rule 1, Sec. 4) Q: When do the Rules on Evidence apply? ‘A: The rules on evidence, being part of the Rules of Court, apply only to judicial (as opposed to administrative or quastjudicial) proceedings, (DEL CASTILLO) In quasi-judicial proceedings, the Rules on Evidence shall not apply except by analogy or in a suppletory character and whenever practicable and convenient. (Ferrer v. Carganillo, G.RNo. 170956, May 12, 2010) 4: Distinguish between Factum Probans and Factum Probandum. A: Roa CNet Rae meer |The | evidentiary fact probative or | | tending to prove the fact in issue or the | The ultimate fact to be FACTUM proved or proposition PROBANDUM. It is | tobe established. the material evidencing the proposition 5. ADMISSIBILITY OF EVIDENCE : What are the requisites for admissibility of evidence? A 1. Relevant ~ Relevant to the issue 2. Competent — Not excluded by the Rules on Evidence, the law and the Constitution (Rule 128, Sec. 3) Q: Distinguish between Admissibility and Weight of Evidence. A CE Refers to the question of whether or not the evidence proves an issue Pertains to its tendency to convince land persuade Depends on the | guidelines provided in Rule 133° and | jurisprudence (Taling v. Marcella, GR. No. 15508, 2007) ‘ADMISSIBILITY. Refers to the question | of whether or not the evidence is to be considered at all Pertains to its relevance and competence Depends on logic and | the taw PAGE 114 OF 157 SS]ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the components of relevant evidence? A: 1, Material ~ evidence offered upon a matter property in issue. Itis directed towards a fact within the range of allowable controversy. 2. Probative ~ tendency of evidence to establish the proposition that itis offered to prove. Q: What is multiple admissibility? : When a proffered evidence is admissible for two or more purposes. It may be admissible for one purpose but inadmissible for another or vice versa. Itmay also mean that it may be admissible against one party but not against another. Q: What is conditional admissibility? ‘A: When a piece of evidence appears to be relevant as it is connected with other pieces of evidence not yet offered or proved, such piece of evidence may be conditionally admitted subject to the condition that its relevancy and competency be established at a later time. If the condition is not ‘met, the evidence should be rejected. Q: What is curative admissibility? ‘A: When a partyis allowed to present inadmissible evidence over the objection of the opposing party, such opposing party may be allowed to introduce otherwise inadmissible evidence to contradict the previously admitted inadmissible evidence and to remove any prejudice caused by its admission. @: Distinguish between Competent and Credible Evidence. A: Coe faveentas When evidence is not One that isnot | only Coa vanes admissible ‘excluded by the Rules, | evidence but is statutes or | believable and used Constitution. by the court in deciding a case. Q: What is Circumstantial Evidence? ‘A: Evidence that indirectly proves a fact in issue through an inference which the fact finder draws. from the evidence established, (DEL CASTILLO) Direct evidence is not the only means by which the gull of an accused may be established. Circumstantial evidence may similarly be resorted to. (People v. Biglete, GR. No. 182920, 2012) (DEL CASTILLO) Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (©) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (People v. Solano, Jr, G.R.No. 199871, June 2, 2014). ©. BURDEN OF PROOF AND BURDEN OF EVIDENCE Q: What is the “Burden of Proof’? A: Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Rule 131, Sec. 1) Q: Upon whom does the Burden of Proof Rest? A: 4. In CIVIL CASES - the plaintiff has the burden of, proof to show the truth of his allegations, IF the defendant raises a negative defense. However, IF the defendant raises an affirmative defense on the ‘complaint of the plaintf, the burden of proof rests upon him, (Far East Bank Trust Company v. Chante, G.R. No. 170598, October 9, 2013) 2. In CRIMINAL CASES - The burden of proof as to the guilt of the accused must be bome by prosecution, by reason of presumption of innocence.The exception to this rule are cases where the accused pleads self-defense or other justifiable defenses, in which case, the accused hhas the burden of proving the existence of the defense. (People v. Campos et. al, G.R. No. 176061, July 4, 2011) PAGE 115.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the rule when the accused is not brought to trial within the time limit set by taw? ‘A: Under the Speedy Trial Act, if the accused was NOT brought to trial within the time required, the information shall be dismissed on the motion of the accused, The accused shall have the burden of proof of supporting such motion BUT the prosecution shall have the burden of going forward with the ‘evidence in connection with the exclusion of time under this Act. (R.A. No. 8483, Sec. 13) @: What the degree of proof required for successful prosecution? a 1. In Civil Cases - preponderance of evidence is required. (Rule 133, Sec. 1) 2. In Criminal Cases - a) To sustain conviction — Evidence of guilt beyond reasonable doubt. b) Preliminary investigation — probable cause - engenders a well-founded belief of the fact of the commission of acrime. ©) Issuance of warrant of arrest- Probable cause (\e., that there is reasonable ground to believe that a criminal offense has been committed and that the accused committed the offense). (Rule 133, Sec. 2) 3. In Administrative Cases — Substantial evidence. (Rule 133, Sec. 5) Q: What is the Hierarchy of Evidence? BK Proof beyond reasonable doubt Clear and convincing evidence Preponderance of evidence Substantial evidence (Rule 133, Secs. 1-5) istinguish Burden of Proof vs. Burden of Evidence. Ey a ern Duty of a party to go forward with the Cua ‘Obligation of a party to present evidence on the facts in issue | evidence to overthrow necessary to establish | any prima facie his claim or defense by | presumption against the amount — of | him evidence required by law _ ‘The burden of proof is fixed by the pleadings Generally determined by the developments of the trial or by | provisions. of substantive law or procedural rules jatven tay fevleve the, | party from presenting evidence on the facts alleged. May shift from one side to the other as Does not generally shift during the course of the trial ‘tial unfolds. (Bautista v. Sarmiento, GR. No. September 23, 1985) L-45137, Q: What is Averments? the principle of Negative ‘A: Negative Allegations need not be proved, whether ina civil or criminal action, Exception: When such negative allegations are essential parts of the cause of action or defense in a civil case or are essential ingredients of the offense in a criminal case or defenses thereto, (see People v. Yang, G.R. No. 148077, 2004) Exception to the exception: in CRIMINAL CASES, if the subject of a negative averment inheres to the offense as an essential ingredient thereof, the prosecution has the burden of proving the same, In view, however, of the dificult office of proving a negative allegation, the prosecution, under such circumstance, needs to do no more than make a prima facie case from the best evidence obtainable. For example, in a case {or illegal possession of firearms, the prosecution PAGE 116 OF 157 EEATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW hhas to present a certification from the Firearms and Explosives Division of the Philippine National Police that the accused is not licensed to carry a firearm outside of his or her residence. (People v. Quebral, G.R. No. 46094, 1939) D. PRESUMPTIONS Q: What is a ‘Presumption’? A: Itis an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact found or otherwise established in the action. (Estate of Honorio Poblador, Jr. v. Manzano, G.R. No. 192391, 2017) : What are the Effects of Presumptions? : A party in whose favor the legal presumption exists may invoke such presumption to establish a fact in issue and need not initoduce evidence to prove the fact for the presumption is prima facie proof of the fact presumed. (Diesel Construction Co. v. UPS! Property Holdings Inc, G.R. No. 184937, 2008) the burden of going forward with the evidence. It imposes on the party against whom itis directed the burden of going forward with evidence to meet fr rebut the presumption. However, it does not shift the burden of proof. (REGALADO, p.819) Q: How can PRESUMPTION JURIS be further divided? A Conclusive Presumption (juris et de jure) — inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Rule 131, Sec. 2) Disputable Presumption — presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence, (Rule 131, Sec. 3) @: What are conclusive presumptions? examples of A: 1. Estoppel in pais 2. Estoppel against tenant (Rule 131, Sec. 2) Q: X is the landlord of Y. However, after the commencement of the lease contract, X's property was extrajudicially foreclosed and Y refuses to pay his rent saying that X is not his landlord anymore. Is Y correct? (DEL CASTILLO) Yes, since there was a change in the nature of the tlle of the landlord during the subsistence of the iease, then the conclusive presumption does not apply. (Enrico Santos v. National Statistics Office, GR. No. 171128, 2011) @: What are some relevant examples of disputable presumptions? A 1. Presumption of innocence 2: A person takes ordinary care of his concems 3. Possession of stolen goods means you are the thier 4. A person acting in a public office was regularly appointed or elected to it 5. An official duty has been regularly performed (presumption of regularity) 6. Ordinary course of business has been followed 7. Private transactions have been done with regularity and fairy, 8. Evidence wilfully suppressed would be adverse if produced E. QUANTUM OF PROOF (WEIGHT AND ‘SUEEICIENCY OF EVIDENCE) Q: What is Proof Beyond Reasonable Doubt? A: Proof beyond reasonable doubt does not mean ‘such a degree of proof as excluding the possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an. Lnprejudiced mind. (Rule 133, Sec. 2) PAGE 117 0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is Preponderance of Evidence? A: Itdoes not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that the probability of truth is on one side than on the other. (Rivera v. Court of Appeats, G.R. No. 115625, 1998) Q: Corporation A is engaged in the business of rice milling and selling of grains. X entered into a rice supply contract with Corporation A. However, X failed to pay for the rice supplied by Corporation A. Corporation A sent a letter of demand to X and ¥, the father of X who also owns a rice supply business. Y contends that he is not privy to the contract between Corporation A and X. On the other hand, Corporation A claims that Y is an agent of X which makes him privy to contract. Is Corporation A correct? ‘A: (DEL CASTILLO) No, Corporation A is incorrect. Its a basic rule in evidence that he who alleges must prove his case or claim by the degree of evidence required. In civil cases, the quantum of proof required is preponderance of evidence, which connotes “that evidence that is of greater weight or is more convincing than that which is in ‘opposition to it. It does not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that the probability of truth is on one side than on the other.” The evidence does not support Corporation A's view that both X and Y contracted with Corporation A forthe delivery of rice on credit uite the contrary, the preponderance of evidence indicates that it was X alone who entered into the rive supply agreement with Corporation A. (Manlar Rice Mill v. Lourdes L. Deyto, G.R. No. 191189, January 28, 2017) Q: What is Substantial Evidence? A: In cases filed before administrative and quasi judicial bodies, a fact may be deemed established if itis supported by substantial evidence. ‘Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify 2 conclusion. (Rule 133, Sec. 5) Q: What is Clear and Convincing Evidence? ‘A: Evidence is clear and convincing if it produces. in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. (Black's Law Dictionary, 7" ed., 596) This #s a greater burden than preponderance of evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials. (Black’s Law Dictionary, 8" ed., 596) The rule is that charges of misconduct against judges should be proven by clear and convincing evidence, otherwise they should be dismissed.” (Pesole v. Rodriguez, A.M, No. 755-MyJ, 1978) Q: X and Y, X's minor child, filed a complaint for support against Z. X claims that Y is 2's illegitimate child. The RTC and CA both granted support to Y on the basis of the Certificate of Live Birth of Y, Baptismal Certificate’ of Y but both unsigned by Z, and that Y called Z “Papa”. Was X able to prove itegitimate fillation? A: (DEL CASTILLO) No. An order for support must be issued only if patemity or filition is established by clear and convincing evidence. Evidence presented was the Certificate of Live Birth and Baptismal Certificate of Y identifying Z as, the father. However, said documents have ite or 1o probative value to establish fifation since Z had not signed the same and had no hand in the preparation of the certificate. Neither does the testimony of Z being called "Papa at one time establish his illegitimate filiation. There must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. Support may only be issued upon clear and convincing evidence of filiation. (Antonio Perla v. Mirasol Baring, G.R. No. 172471, November 12, 2012) PAGE 118 0F 197ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: How can these different types of quantum of evidence be summarized? A: IU aires Proof Beyond Reasonable Doubt (Rule 133, Sec. 2) Clear and Convincing el Maker) Criminal cases Evidence Extradition cases (Govt of HK v. Olalia, | Charges filed against G.R. No. 153675, | judges and justices 2007) = Preponderance of Evidence Civil cases (Rule 133, Sec. 1) ‘Administrative Cases, Quasi-Judicial Bodies, Writ of Ampar Substantial Evidence (Rule 133, Sec. 5) G_ JUDICIAL NOTIGE AND JUDICIAL ADMISSIONS: Q: What is JUDICIAL NOTICE? ‘A: It is cognizance of certain facts which judges may properly take and act on without proof because they already know them. Q: When Is Judicial Notice Mandatory? & 1. Existence and territorial extent of states 2. Their political history, Forms of government and symbols of nationality, 3. The law of nations 4. The admiralty and maritime courts of the world and their seals 5. The political constitution and history of the Philippines, 6. The official acts of legislative, executive and Judicial departments of the Philippines, 7. The laws of nature, 8. The measure of time The geographical divisions (Rule 129, Sec. 1) Q: When is Judicial Notice Discretionary? Az 1. The matter is one of public or common knowledge 2. The matter must be capable of unquestionable demonstration 3. The matter is one that is ought to be known to judges. because of their judicial functions (Rute 129, Sec. 2) Q: What is the rule on Judicial Notice of records of other cases? General Rule: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such have been tried or are pending in the same court and with the same judge. Exceptions: ‘© Aparty clearly makes reference to the records of another case and there is no objection by the other party; ‘© Judicial notice is at the request or with the consent of the parties; or The original or part of the records of the case are actually withdrawn from the archives and are admitted as part of the record of the case pending. Distinguish between Mandatory and ;cretionary Judicial Notice? Peng Reena Nag Rete ehies ‘Court is compelled to take judicial noice __| COu"t not compelled At the cour’s own initiative or on request of any of the parties Hearing required By own initiative of the court No hearing Q: What are Judicial Admissions? ‘A: Admissions, verbal or written, made by a party in the course of the proceedings in the same case. (Rule 129, Sec. 4) PAGE-119. OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the elements of Judicial Admissions? (PPP) A 1. Must be made by a party to a case; and 2. Must be made in the course of proceedings in the same case. 3. No particular form is required, thus a judicial admission may be verbal or written e NOTE: Judicial admissions may be made by either a party or his counsel. (Adolfo v. Adolfo, G.R. No. 201427, 2015) Q: What is the effect of judicial admissions? A: An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. (Rule 128, Sec. 4) Q: How may judicial admissions may be contradicted? {A judicial admission is conclusive upon the parly making it and does not require proof Exceptions: Jucicial admissions contradicted ONLY by showing that: 1. The admission was made through PALPABLE MISTAKE 2. NO ADMISSION was made. (Rule 129, See. 4) may be Q: X filed a complaint for Easement of Right of Way against A Corporation. A corporation answered the X have an access to the highway through another property adjoining the latter's property. X avers that the right of way affects only one road lot, contrary to what A Corporation contends. However, during the remand proceedings X admitted that that the right of way granted to them affects several road lots within A corporation's subdivision. Can X still claim that the right of way comprises only of one road lot? A; (DEL CASTILLO) NO. Section 4, Rule 129 of the Rules of Court provides that an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. itis an established principle that judicial admissions cannot be contradicted by the admitter who is the party himself and binds the person who makes the ‘same, and absent any showing that this was made thru palpable mistake, no amount of rationalization can offset it. Since X already judicially admitted that the right of way affects a number of road lots, they cannot not now claim that it only comprise one road lot. (Demetria De Guzman v. Filinvest Development Corporation, GR No. 191710, January 14, 2015) Q: X was caught to be in possession of unlicensed firearms and ammunitions in NAIA. He was subsequently charged with violation of P.D. 1866 (illegal Possession of Firearms and Ammunition). X denies the ownership of the firearms and alleges that he was forced to accept the ownership of the guns. During trial, X admitted before the Court that he brought the firearms and ammunitions on his flight from Manila to Dubai. Does X's testimony constitute judicial admission? A: (DEL CASTILLO) Yes. To the Court, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made. No such ccontroversion is extant on record. Admission may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made. (Teofilo Evangelista v. People, G.R. No. 163267, May 5, 2010). : What are the effects of admissions made in pleadings? ‘A: Such admissions cannot be controverted by the party making such admission and are conclusive as to such party. (Sps. Noynay vs Citihomes Builder and Development, Inc., G.R. No, 204160, 2014) PAGE 120 OF 157 —————ATENEO CENTRAL BAR OPERATIONS 2018 Q: What is the effect when a pleading superseded or amended? A: Pleadings that are superseded or amended “disappear” from the record and any admissions made in such pleadings cease to be judicial admissions. In order that any statement contained therein may be considered as evidence, a party should formally offer the superseded or amended pleading in evidence. (Lucido v. Calupitan, GR. No. L-£200, 1914) : What are the remedies of a Party Who Gave a Judicial Admission? A: 2) Motion to Withdraw: for written judicial admissions, by fing @ motion to withdraw the pleadings, motion or other writen instrument Containing such admission; or by moving that such admission be deemed withdrawn or disregarded due to palpable mistake. b) Motion for Exclusion: for oral judicial admissions, counsel in open court may move for the exclusion of such admission due to palpable mistake. Q: What are ExtraJudicial Admissions? ‘A: Those made out of court, or in a judicial proceeding other than the one under consideration, Q: What is the difference between admissions in pre-trial in civil and criminal cases? A Cosas C= ‘Admissions in pre-trial, as well as those made Goa mer) [The admission} must during the depositions, interrogatories or | Pe bs (1) reduced in writing requests for admission are deemed judicial admissions since they are made in the course of the proceedings of the case and (2) signed by both the accused and counsel REMEDIAL LAW Q: What is adoptive admission? in adoptive admission is a party's reaction toa statement or action by another person when it is reasonable to treat the party's reaction as an admission of something stated or implied by the other person. The basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made. in the Angara Diary, Estrada's options started to dwindle when the armed forces withdrew its support. Thus, Executive Secretary Angara had to ‘ask Senate President Pimentel to advise petitioner to consider the option of dignified exit or resignation. Estrada did not object to the suggested option but simply said he could never eave the country. His silence on this and other related suggestions can be taken as an admission by him. (Estrada v. Desierto, G.R. Nos. 146710- 18, 2001) Q: What are the rules on judicial notice of foreign laws? A: Courts cannot take judicial notice of foreign laws. Foreign laws have to be proved like any other fact. (De! Socorro v. Van Wilsem, G.R. 193707, 2014) Exceptions: 1, When the said laws are already within the actual knowiedge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (PCIB v. Escolin, G.R. Nos, L-27860 and L-27896, 1974) 2. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (Rule 130, Sec. 46) For example, courts can cite the treatise of Wigmore on Evidence without need Of testimony from a witness. PAGE 121 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: How are foreign laws proved? written foreign law maybe proved by: + An official publication; or =A copy attested by the officer having legal custody of the record, or by his deputy. If the record is not kept in the Philippines, the proponent of the foreign law must also submit a certificate that such officer has the custody of the record. The certificate may be made by any of the following officers and must be authenticated by the seal of his office: © Secretary of the embassy or legation Consul general Consul Consular agent Any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept. (Rule 130, Sec. 24) Q: What is the doctrine of processual presumption? A: If the foreign law is not properly proved, the foreign law is presumed to be the same as the law in the Philippines (Northwest Orient Airlines. v. Court of Appeals, G.R. No. 112573, 1995) BJECT (REAL) EVIDENCE Q: What are the categories of object evidence? A: They are — 1. Unique objects — objects that have readily identifiable marks, e.g., a gun with a serial number. 2. Objects made unique — objects with no unique characteristics but are made readily identifiable, e.g., a typical kitchen knife with identifying marks placed on it by the __ witness. 3. Nonunique objects - Objects with no identifying marks and cannot be marked, €.9. narcotic substances. (People v. Bardaje, G.R. No. L-29271, 1980) Q: What must be done by a proponent when presenting non-unique objects as evidence? ‘A: A proponent offering evidence which falls under the third category must establish a chain of custody. (People v. Bardaje, G.R. No. L-29271, 1980) 1 DOCUMENTARY EVIDENCE Q: What are the requisites for Admissibility of documentary evidence? A; To be admissible, documentary evidence, like any other evidence, must be relevant and competent, It is also subject to general exclusionary rules such as on hearsay, best evidence rule, and parol evidence rule. Q: To what type of proceedings and actions do the REE apply? A: The Rules apply to civil actions and proceedings, as well as quasijudicial and administrative cases. (REE, Rule 1, Sec. 2) thas ‘also been held tnat they apply to criminal actions. (People v. Enojas, G.R. No. 204894, 2014) Q: What is an electronic document? A: It is information or the representation of information, data, figures, symbols, or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically (REE, Rule 2, See. 1(h}) Q: What is an electronic data message? A: It is information generated, sent, received or stored by electronic, optical, or similar means. (REE, Rule 2, Sec. 1(9)) For purposes of the REE, the term “electronic document’ may be used interchangeably with electronic data message.” (REE, Rule 2, Sec 1(h)) PAGE 122 OF 187ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW What is the “functional equivalent” principle in relation to electronic evidence? A: The REE provides that electronic evidence is deemed to be the functional equivalent of paper based documents, As such, whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. (REE, Rule 3, Sec. 1) @: When is an electronic document admissible? A: An electronic document is admissible in ‘evidence if: 1. It complies with the rules on admissibility prescribed by the Rules of Court and related laws; and 2. itis authenticated in the manner prescribed by these Rules. (REE, Rule 3, Sec. 2) Q: What is the Best Evidence Rule under the REE? ‘A: An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect, the data accurately. (REE, Rule 4, Sec. 1) : When is a copy or duplicate of a document regarded as original under the REE? A: When — 1. Itis in two or more copies executed at or about the same time with identical contents; or 2. It'is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re- recording, or by chemical reproduction, or by ‘other equivalent techniques which accurately reproduces the original ‘Such copies or duplicates shall be regarded as the ‘equivalent of the original. (REE, Rule 4, Sec. 2) @: When are copies or duplicates not admissible to the same extent as the original? ‘A: They are not admissible to the same extent as the original if: 1. A genuine question is raised as to the authenticity of the original; or 2. In the circumstances, it would be unjust or inequitable to admit the copy in lieu of the original. (REE, Rule 4, Sec. 2) Q: How is the admissibility and evidentiary weight of an electronic document established? A: All matters relating to the admissibiity and evidentiary weight of an electronic document may be established by an affidavit stating facts of 1. rect personal knowledge ofthe affiant; or 2. based on authentic records The afiavt must affrmatvely show the competence of the alfiant to testify on the matters contained therein. (REE, Rule 9, Sec. 0 What must be done before a private electronic document offered as authentic is received in evidence? A: Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved. (REE, Rule 5, Sec. 2) authenticated? A: By any of the following means: 1. By evidence that it had been digitally signed by the person purported to have signed the same; 2. By evidence that other appropriate security Procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or 3. By other evidence showing its integrity and reliability to the satisfaction of the Judge. (REE, Rule 5, Sec. 2) PAGE 123 OF 157"ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: Is there such a thing as electronic notarization? ‘A: Yes. A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. (REE, Rule 5, Sec. 3) : What is the Best Evidence Rule? ‘A: The best evidence rule operates as a rule of exclusion, that is, secondary evidence cannot be introduced as the original writing itself must be produced in court, subject to exceptions. The best evidence rule applies only when the subject of the inquiry is the contents of 9 document. The rule requires that the original of the writing must be produced. It is also known as the “original document rule” or the “primary evidence” rule (Nepocer v. Codila, G.R. No. 170491, 2007) Q: What are the exceptions to the Best Evidence Rule? A 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office. (Rule 130, Sec. 3) Q: What effect arises in case the proponent fails to adduce the original documents? ‘A: The non-production of the eriginal document by an accused unless justified under the exceptions gives rise to the presumption of suppression of evidence adverse to him. (Vallarta v. CA, G.R. No. 36543, 1988) Q: What is an original document? The original of a document is one the contents of which are the subject of inquiry. 2. When a document is in two or more copies, executed at or about the same time, with identical contents, all such copies are equally regarded as originals. 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals. (Rule 130, Sec. 4) hen may secondary evidence be admitted when original is lost, destroyed or cannot be produced in court? A: 1. Proof of the existence and the due execution of the original; 2. Loss, destruction or unavailability of all such originals; 3. Reasonable diligence and good faith in the search for or attempt to produce the original (Rule 130, Sec. 5) NOTE: the correct order of proof is as follows- ‘existence, execution, loss, and contents (ELC) (MCMP Construction vs. Monark, G.R. No. 20100, 2014). Q: What facts must be shown by the party offering Secondary Evidence when original is under the adverse party's custody or control? A: 4. The adverse party's custody or control of the original document; 2. That reasonable notice was given to the adverse party who has the custody or control of the document; Satisfactory proof ofits existence; Failure or refusal by the adverse party to produce it in court. (Rule 130, Sec. 6) PAGE 124 OF 157 SlATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW : What is the order by which presentation of secondary evidence for lost or unavailable originals be done? & 1. A copy of the document; Recital of its contents in an authentic document; 3. The recollection or testimony of the witnesses, (Rule 130, Sec. 5) Q: What must be shown in order for the testimony regarding the original document be admissible? & 1. The original was read by him or read to him by another person; 2. He reads the copy; and 3. Finds that the latter corresponds with what was. read to him Q: How do you prove the contents of an Authentic Document? A: In proving the contents of the original in some. authentic document, itis sufficient ifit appears in a private document which is proved to be authentic. Q: What happens in case the documents sought to be presented are too voluminous. and only the general result is sought? ‘A: There is no need to present the original where: the documents are too voluminous. Secondary evidence may consist of a summary of the voluminous documents or records. The voluminous records must, however, be made accessible to the adverse party so that the correctness of the summary may be tested on ccross-examination. (Rule 130, Sec. 3{d)) Q: What evidence is admissible in case the original document is a public record? ‘A: Secondary evidence may consist of a Certified ‘True Copy issued by the public officer in custody thereof. (Rule 130, Sec. 7) @: Is a party calling for the production of a document bound to offer it? ‘A: No. Production of papers or documents upon the trial, pursuant to a notice duly served, does not make such papers or documents evidence. It is ‘not until the party who demanded the production of the papers examines them and offers them in evidence that they assume the status of evidentiary matter. (Rule 130, Sec. 8) Q: Can the Best Evidence Rule be waived? Yes, If there is no timely objection to a document on the ground that it violates the Best Evidence Rule, the secondary evidence will be admitted. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth representing a matter of fact. (Rule 128, Sec. 1) Q: X sued Y for collection for sum of money. X presented a photocopy of _—the Acknowledgment receipt. Y contends that the original copy was not presented in court when X was testifying on the receipt, and thus the receipt is inadmissible. Is the acknowledgement receipt admissible? ‘A: (DEL CASTILLO) Yes. Failure to present the original copy during her testimony does not materially affect the outcome of the case. The failure was a mere procedural inadvertence. The original exists and was made part of the records of the case when evidence was first presented ex parte. In fact, the reason why the original could not be presented was because it was already made part of the exhibits. More to the point is the fact that Y failed to deny specifically under oath the genuineness and due execution of the Acknowledgment in their Answer. ‘The effect of this is that the genuineness and due execution of the Acknowledgment is deemed admitted. There is no need for proof of execution and authenticity with respect to documents the genuineness and due execution of which are admitted by the adverse party. However, only those who signed the instrument may be held liable. The rule that the genuineness and due execution of the instrument shall be deemed PAGE125 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW admitted, unless the adverse party specifically enies them under oath, applies only to parties to such instrument. (Sps. Ferando and Elena Santos v. Lolita Alcazar, G.R. No. 183034, March 12, 2014) Q: Z Bank foreclosed the 2 parcels of land owned by X due to X's failure to pay back a Joan, Z Bank issued a Certificate of Land Ownership (CLOAs) in favor of A and B as tenants of the property formerly owned by X pursuant to the Comprehensive Agrarian Reform Law. X filed a complaint to cancel the CLOAs on the ground that X has brought back the property from Z Bank before the issuance of the CLOAs. On appeal, the CA held that the Dood of Sale between X and Z Bank is the best evidence as to the property that was sold back by Z Bank to X. A and B argued that the CA erred in using the best evidence rule to determine the subject of the Deed of Sale and the Deeds of Voluntary Land Transfer. A and B maintained that itis the Parol Evidence Rule that should be applied in order to adequately resolve the dispute since the issue in the case Is not the contents of the contracts but the intention of the parties that was not adequately expressed in their contracts. Is the Best Evidence Rule applicable in this case? ‘A: (DEL CASTILLO) No, The Best Evidence Rule states that when the subject of inquiry is the contents of a document, the best evidence is the original document itself and no other evidence (such as a reproduction, photocopy or oral evidence) is admissible as a general rule. In the instant case, there is no room for the application of the Best Evidence Rule because there is no dispute regarding the contents of | the documents. The real issue is whether the admitted contents of these documents adequately and correctly express the true intention of the parties, ‘The instant case falls under the exceptions to the Paro! Evidence Rule, as provided in the second paragraph of Rule 130, Section 9, among them: (1) Anintinsic ambiguity, mistake or imperfection in the written agreement; and (2) The failure of the written agreement to express the true intent and agreement of the parties thereto, Based on the foregoing, the resolution of the instant case necessitates an examination of the parties’ respective parol evidence, in order to determine the true intent of the parties. (Salun-at Marquez v. Eloisa Espejo, G.R. No. 168387, August 25 2010) Q: What is parol evidence? ‘A: Any evidence aliunde (extraneous evidence), whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. (Rule 130, Sec. 9) @: What are the exceptions to the parol evidence rule? ‘A: A parly may present evidence to modify explain or add to the terms of the written agreement ihe puts in issue in his pleading any of the following 1, An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. The failure of the written agreement to express the true intent and agreement of the parties thereto; 3. The validity of the written agreement; or 4, The existence of other terms agreed to by the parlies or their successors in interest afler the ‘execution of the written agreement. (Rebusquillo vs. Galvez, G.R. No. 204029, 2014) @: When does the parol evidence rule apply? A 1, Existence of a valid contract; 2. The terms of the agreement must be in writing, This may refer to either public or private writing; 3. The dispute is between parties and their successors in interest; and/or PAGE 126 OF 157ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2018 4. ‘There is dispute as to the terms of the agreement with the party basing his claim or asserting aright originating inthe instrument or the relation established thereby. @: \guish between the Parol Evidence and Best Evidence Rule. A: GEIS Establishes a It presupposes that the | preference for the original document is | original document available in court over secondary evidence thereof. Predudes ha admission of other evidence to prove the terms of a document | 23mission 2 carer than he contont | S22UBNYevonce of the document ist Me, iin for the purpose of eae varying the terms of the a wring Precludes the Gan be invoked by Can be invoked only by | any tigant to an the parties tothe | action whether or not document and their | said Itigant is @ party successors-in-interest, | to the document involved. ‘Applies to written agreements (contracts), wil. When the subject of the inquiry is the terms of the agreement, one must, as a rule, read the agreement" itself and not seek guidance fon sources outside the writing, Sources outside the writing are considered parol evidence, and are Applies to all forms of including | writings When the subject of the inquiry is the contents of a writing, ‘he must look at the original writing. This is the best evidence rule. inadmissible, Q: What is Authentication? ‘A: Process of proving the due execution and genuineness of the document, In order to be admissible in evidence, the object sought to be offered must authenticated, that is, it must be shown to have been the very thing that is, the subject matter of the lawsuit or the very one involved to prove an issue in the case. Q: Whatis a private document? A: A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. (Patula v. People, G.R. No. 164457, 2012) @: How do you authenticate a private document? A: Before any private document offered as authenticis received in evidence, its due execution ‘and authenticity must be proved either: 1. By anyone who saw the document or vwitten; or 2. By evidence of the genuineness of the signature or handwriting of the maker. ‘Any other private document need only be identified as that which itis claimed to be. (Rule 132, Sec. 20) Q: What is a public document? A 1. The writen oficial acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2, Documents acknowledged before a notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to the entered therein. All other witings are PRIVATE (Rule 132, Sec. 19). PAGE 127 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Is a USAID Certification used as basis in computing the award for loss of income a public document? A: Yes. Sec. 19 (a), Rule 132 of the Rules of Court, classifies as public documents the written officiat acts, oF records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. USAID is the principal United States agency that extends assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms and that it is an independent federal government agency that receives over-all foreign policy guidance from the Secretary of State of the United States. In view of this, # is clear that the USAID Certification is a Public document. (Heirs of Jose Marcial K. Ochoa Namely: Ruby B. Ochoa Micaela B. Ochoa v. G&S Transport Corporation, GR No. 170071, July 16, 2012) Q: How do you authenticate genuineness of signature or handwriting? A: The rule is that he who disavows the authenticity of his signature on a public document bears the responsiblity of presenting evidence to that effect. Section 22, Rule 132, Rules of Court instructs that genuineness of handwriting may be Proved by a comparison, made by the witness or the court, with writings admitted or treated as genuine by a party against whom the evidence is offered, or proved to be genuine to the satisfaction of the Judge. (Wyna Marie P. Garingan-Ferreras v. Eduardo 7. Umblas, AM No. P-11-2989, January 10, 2017 fen bane}) The handwriting of a person may be proved by any witness who believes it to be the handwiting of such person because he has seen the person write, or has seen writing purporting to be his upon ‘which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. (Sps. Bernales v. Heirs of Sambalaan, G.R. No. 163271, January 15, 2010) Q: What is the ancient document rule? A: Where a private document is more than 30, years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances, of suspicion, no other evidence of its authenticity need be given. (Rule 132, Sec. 21) Q: What must an attestation contain? ‘A: Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court (Rule 132, Sec. 25) Q: How is lack of record proved? ‘A: A written statement signed by an officer having the custody of an official record or by his deputy that after dliigent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry (Rule 132, Sec. 26). Q: How is judicial record impeached? A: Any jusicial record may be impeached by evidence of: 1. Want of jurisdiction in the court or judicial officer 2. Collusion between the partes; or 3. Fraud of the party offering the record, in respect to the proceedings (Rule 132, Sec 29). Q: How are notarial records proved? A: Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Rule 132, Sec. 30) PAGE 128 OF 157: easATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW A public document duly acknowledged before a notary public, under his hand and seal with his certificate thereto attached, is admissible in evidence without further proof of its due execution and delivery until some question is raised as to the verity of said acknowledgment and certificate (Antilion v. Barcelon, G.R. No. L-12483, 1917). Q: How are alterations to a document explained? A 1. The alteration was made by another, without his concurrence; or 2. It was made with the consent of the parties affected by it; or 3. It was otherwise properly or innocently made; or 4. The alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence (Rule 132, Sec. 31). Q: How do you prove a document in an unofficial language? ‘A: Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, Parties or their attorneys are directed to have such translation prepared before trial (Rule 132, Sec. 33), However, more than once, this Court has taken into consideration documents written in a Philippine dialect, unaccompanied by the required translation but which had been admitted in evidence without objection by the accused. In those instances, the Court merely ordered official translations to be made. (People v. Salison, G.R. ‘No. 115690, 1996). TESTIMONIAL EVIDENCE Q: What are the rules as to the qualifications of awitness? A 1. All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. (Rule 130, Sec. 20) Exceptions: Except as provided by law or the Rules, such as: 1. Disqualification by reason of mental capacity or immaturity (Rule 130, Sec. 21) 2, Disqualification by reason of mariage (Rule 130, Sec. 22) 3. Disqualification by reason of death or insanity of adverse party (Rule 130, Sec. 23) 4. Disqualification on ground of privileged communication (Rule 130, Sec. 24) 2. Religious or political belief, interest in the ‘outcome of the case, or conviction of a crime shall ot be a ground for disqualification. (Rule 130, Sec. 20) Exception: Unless othennise provided by law. 3. Conviction of a crime is not a ground for disqualification of a witness. Exceptions: 1. Those convicted of falsification of a document, perjury or false testimony cannot be witnesses to a wil. (Civil Code, Art. 821) 2. An accused convicted of a crime involving moral turpitude, whenever made a co- accused in any criminal case, cannot be discharged to become a witness for the Government. (Rule 119, Sec. 17) PAGE 129.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: X was indicted for murder and plead guilty to a lesser offense of homicide. Before X was indicted, X executed an extrajudicial confession wherein he admitted to shooting Y and implicated his co-conspirator Z. Based on X's confession, Z was charged with murder. Is X, a co-conspirator, a credible witness? A; (DEL CASTILLO) Yes. Convietion of a crime, unless otherwise provided by law, shall not be a ground for disqualification of witnesses. X's previous conviction neither detracts _ his competency as a witness nor necessarily renders. his testimony totally untrustworthy and inadmissible. The determination of the character of a witness is not a prerequisite to belief in his testimony. Ilis alleged bad reputation, even if true, should not sway the court in the evaluation of the veracity of his testimony. The inconsistencies enumerated to discredit X only refers to minor details, and not to the central fact of the crime. (Virgiio Bug-atan v. People, G.R. 174195, September 15, 2010) Q: What are the qualities a person must show before he could be a qualified witness? A: A prospective witness must show that he has the following abilities: (ORRR) To Observe testimonial quality of perception; To Remember the perception; To Relate the perception; That he has to Recognize a duty to tell the truth, under oath or affimation. (Herrera, p. 278) Bens @: When is a deaf-mute qualified as a witness? A: A deaf-mute is competent to be a witness so Jong as helshe has the faculty to make observations and he/she can make those observations known to others (People v. Aleman y Longhas, G.R. No. 181593, 2012) Are parties in default disqualified as to be witnesses? ‘A: No. Parties deciared in default are not disqualified fram taking the witness stand for non- disqualified parties. The law does not provide default as an exception. (Marcos v. Heirs of Navarro, G.R. No. 198240, 2013) @: Is an authorization required before a witness can testify on behalf of a party? ‘A: No. There is no substantive or procedural rule which requires a witness for 2 party to present ‘some form of authorization to testify as a witness: for the party presenting him or her. (AFP Retirement and Separation Benefits System v. Republic, G.R. No. 188956, 2013) Q: Distinguish competency from credibility of a witness, ‘A: Competency is the legal fitness or abilty of a witness to be heard on a trial of a cause. Credibility of a witness refers to the believabilty of a witness, and has nothing fo do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. To hold that a particular person is competent to testify upon a given matter does not mean that his testimony thereon must be believed by the court or must be deemed by it to be of sufficient probative value to establish the point which it was intended to prove. Competency ‘of a witness is one thing, and it is another to be a credible witness. (Regalado 2008 ed.) Q: Can rape be established by the sole testimony of the victim? A: Yes. Rape can be established by the sole testimony of the victim that is credible and untainted with serious uncertainty. With more reason is this ‘ue when the medical findings supported the testimony of the victim, as inthis case. When the victim's testimony of her violation is corroborated by the physical evidence of penetration, there is. sufficient foundation for concluding that there was canal knowledge. (People of the Philppines v. Alan Rodriguez y Grajo, G.R. No. 208406, 2016) PAGE 130 OF 187 |ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW : What is the test of competency? ‘A: Whether the individual has _ sufficient understanding to appreciate the nature and obligation of an oath and sufficient capacity to observe and describe correctly the facts in regard 10 which he is called to testify Q: When is there presumption of competency? ‘A: As a general rule, when a witness takes the stand to testify, the law presumes that he is competent. The burden is upon the party objecting to the competency of a witness to establish the ‘grounds of incompetency. : When must objection to competency be made? A: The objection to the competency of a witness ‘must be made: 1. Before the witness testifies 2. As soon as it becomes apparent on the trial : What is the effect of failure to object to a witness’ competency? A: Failure to object to the competency of a witness ‘amounts to a waiver and once the evidence is admitted, it shall stay in the records and can be ‘weighed according to its merits. DISQUALIFICATIONS OF A WITNESS @: What are the two (2) Kinds of Disqualifications of Witnesses? A 1. ABSOLUTE DISQUALIFICATION (Rule 130, Secs. 21-22) 2. RELATIVE DISQUALIFICATION (Rule 130, Secs. 23-24) 4. BY REASON OF MENTAL CAPACITY OR IMMATURITY Q: Who cannot be witnesses? A 1. Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (By reason of mental incapacity); and 2. Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (By reason of immaturity) (Rule 130, Sec. 21) NOTE: The law presumes that every person is of sound mind, in the absence of proof to the contrary. (Torres v. Lopez, G.R. No. L-24569, 1926) ish mental incapacity from Q: isting. immaturity. Coma Nevin Incompetent at the time he is produced for examination Tnabilty to inteligently make known what he has perceived Incompetent - at the time he perceives the event Tnabilly to relate his perceptions truthfully Q: What is the rule on child witnesses? ‘A: Every child is now presumed qualified to be a witness. To rebut this presumption, the burden of roof lies on the party challenging the child's ‘competency. Only when substantial doubt exists. regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court will he court, motu proprio or on motion of a party, conduct a competency examination of a child. (Rule on Examination of a Child Witness, ‘A.M. No, 004-07-SC) PAGE 131 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When can a child become a witness? A: For a child witness to be competent, it must be shown that he has the capacity of (1) observation, (2) of recollection, and (3) of communication (People v. Mendoza, G.R. No. 113791, 1996) Q: Is a mental retardate disqualified as a witness? A: A mental retardate is not per se disqualified from being a witness. As long as his senses can perceive facts and he can convey his perceptions in court, he can be a witness. (People of the Philippines v. Espafiote, G.R. No. 119308, 1997) 2. BY REASON OF MARRIAGE (MARITAL DISQUALIFICATION RULE) : What are the requisites for disqualification by reason of marriage? A 1. Spouses are legally married; and 2. Either spouse must be a party to a case Exceptions: 1. The case in which the husband or wife is called to testify is a civil case instituted by fone against the other 2 That it is a criminal case for a crime ‘committed by one against the other, or the latter's direct descendants or ascendants, (Rule 130, Sec. 22) NOTE: The privilege lasts only during marriage. When does the Marital Disqualification Rule not apply? ‘A: Where the marital and domestic relations are ‘80 strained that there is. no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fais. in such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Thus, there is no longer any reason to apply the Marital Disqualification Rule. (Alvarez v. Ramirez, G.R. No. 143349, 2005) 3. BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY Q: What are the requisites for disqualifica by reason of death or insanity of adverse party? A 1 @ ‘The witness is a party or assignor of a party to a case or is a person in whose behaif a case is prosecuted; The action is against an executor or administrator or other representative of a deceased person or against 2 person of unsound minds; The subject matter of the action is a claim or demand against the estate of a deceased person or a person of unsound mind; and ‘The testimony of witnesses and the testimony of the party or assignor of a party to the case refer to any matter of fact which occurred before the death of the deceased or before the person became insane. (Rule 130, Sec. 23) When does the Dead Man's Statute not apply? A 1. To awitness who is not party or assignor of @ party or person in whose behalf 2 case is being prosecuted. (Lichauco v. Atiantic Gulf, G.R. No. L-2016, 1949) 2, Where the case is not a claim or demand against the estate of a deceased person. 3. When there is waiver. a. Defendant failed to timely object to the admission of such evidence b. Defendant filed a counterclaim against the plaintif. 4. To a witness who is an officer and/or stockholder of a corporation testifying for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person. (Lichauco v. Altantic Gulf, G.R. No. L- 2016, 1949) 5. When the testimony of plaintiff denies the occurrence of a transaction with the deceased. 6. When the testimony refers to fraudulent transactions as the rule was never Intended to serve as shield for fraud. PAGE 132 OF 157 |ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 7. Ifthe case is prosecuted by anexecutoror 4. «Ss BY REASON OF _—PRIVILEGED. administrator or other representative of a. COMMUNICATION deceased person or by a person of tunsound mind. 8. Thedead man's statute is applied to cases fled AGAINST the administrator for claims AGAINST the estate of the deceased. In this case, it the administrator who filed the case for delivery ofthe stocks and it was not a claim against the estate so the dead man's statute does not apply. (Razon vs. IAC, G.R. No. 74306, 1992) 9. When the testimony is favorable to the representative of the deceased person or person of unsound mind X owns a land and Y is her agricultural lessee. When she died, her daughter Z and Y continued the lease agreement. After Y died, his wife continued the lease agreement. However, W and V claimed that they are co- lessees of Y and that they were deprived of their rights when Y is still alive and now again that his wife took over. The alleged co-lease agreement happened before Y died. Can W and \V prove their claim through W's affidavit? A: (DEL CASTILLO) No, they cannot for being violative of the Dead Man's Statute. Ws declaration in her Affidavit covering Y's alleged admission and recognition of the alternate farming scheme is inadmissible for being a violation of the Dead Man's Statute, which provides that “if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.” Thus, since Y is deceased, and W's declaration which pertains to the leasehold agreement which she as assignor entered into with V, and which is, ow the subject matter of the present case and claim against Y's surviving spouse and lawful successor-in-interest, such declaration cannot be admitted and used against the latter, who is placed inan unfair situation by reason of her being unable to contradict or disprove such declaration as a result of her husband-declarant Y's prior death. (Apotonio Garcia v. Dominga Robles Vda. De Caparas, G.R. No. 180843, April 17, 2013) Q: What are privileged communications under the Rules of Court? A 1, Husband and Wife 2. Attorney and Client 3. Physician and Patient 4. Priest and Penitent 5. Public Officers (Rule 130, Sec. 24) Husband and = Wife (Marital ‘Communications Privilege) Q: What are the requisites for disqualification by Marital Communications Privilege: A 1, The spouses must be legally married; and 2. The communication must be confidential and ‘made during the marriage. The privilege applies to any form of confident disclosure both in words and in conduct. Q: When does the privilege not apply? A 1. When the husband or wife is called to be a witness in a civil case instituted by one against the other. 2. When the husband or wife is called to be a witness in a criminal case for a crime committed by one against the other or the latter's direct ascendants or descendants. 3. Communications between husband and wife ‘overheard by a third person. 4, Where the privileged communication came into the hands of a third party. 5. When there is waiver. (People v. Francisco, GR. No. L-568, 1947) PAGE 133. OF 157" LaATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the distinction between the Marital Disqualification Rule and the Marital ‘Communications Privilege? AL Sa ay Ge (Sec 22) Ceo teary owes (Sec 24fal) Prohibits adverse | Prohibits only as to testimony regardless | knowledge obtained of source through confidence in the marital relation Exists only when a| Exists whether the party to the action is | husband or the wife is 3 the husband or wife | party to the action or not ‘Ceases upon death | Continues even after the termination of the marriage b. Attorney and Client Q: What are the requisites? Communication by client to attorney; and Communication must have been made to the attorney in the course of or with a view to professional employment. (Rule 130, Sec. 24) A: 1. There must be a relation of attorney and client; 2. 3. Q: When does the attorney-client privilege does not apply? A: 1, When there is no attorney-client relationship. ‘When the communication was not intended to be confidential. 3. When the communication is for an unlawful purpose having for its object the commission of a crime. 4. When the communication was made in the presence of third persons. 5. When the communication is overheard by third persons. ‘When the communication comes to the hands of a third party. 7. When the action is one brought by the client against the attorney and the disclosure of the confidential information becomes necessary for the attorney (But fimited only for what is necessary for attomey's own protection). 8. When there is waiver. ‘a. Client of the attomey consents to disclose privileged communication b. Giving evidence on the privileged communication c. When the privileged communication falls into the hands of the adverse party. 4. In calling or cross-examining his attorney regarding the privileged communication. 9. The receipt of fees from a client is not usually within the privilege because the payment of a fee is not normally a matter of confidence or a ‘communication. The ministerial or clerical services of an attomey in transferring funds to or from a client is not a matter of confidence that is protected by the privilege. (In re Grand Jury Investigation, 732 F.2d 447, 1983) Q: Crime or Fraud as Exception to the Privilege ‘A: There is no privilege if the services of the lawyer ‘were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. (People v. Sandiganbayan, 1997) Q: When is the identity of a client privileged? (LAST LINK DOCTRINE) 1. where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. 2. Where disclosure would open the client to civil liability, his identity is privileged. 3. Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name ‘would furnish the only link that would form the chain of testimony necessary to convict an individual of @ crime, the client's name is privileged. (Regala v Sandiganbayan, 1996) PAGE 134 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the work-product privilege? A: Here is simply an attempt, without purported necessity of justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As Such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims Not even the most iberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attomey. (Hickman v. Taylor, 329 U.S. 495, 1947) . Physician and Patient Q: What are the requisites for disqualification by reason of Physician and Patient privilege? i The privilege is claimed in a civil case: The person against whom the privilege is Glaimed is one duly authorized to practice medicine, surgery or obstetrics; 3. Such person acquired the information while he was attending to the patient; 4. The information was necessary to enable him to act in that capacity; and 5. The information was confidential and if disclosed would blacken the reputation of the patient. (Krohn v. CA, 1994) Reo ‘Q: What is the scope of the Privilege? A: The prohibition applies not only to ‘communications made by the patient to the physician but also to opinions or prescriptions. The privilege does not cover all obtained confidentially or necessary for treatment. The information must be one, if disclosed, would blacken the reputation of the patient. (Rule 130, Sec. 24fc)) Q: When does the physician-patient privilege does not apply? When the case is a criminal case. 2. When the testimony refers to information regarding a patient which the physician acquired either before the relation of physician and patient began or after its termination, ‘When there is waiver. 4. Ifthe physician acted for purposes other than, to prescribe for the patient. 5. When the information was not necessary for the proper treatment of the patient. 6 When the information does not blacken the reputation of the patient. 7. Where an action for damages is brought by the patient against his physician. 8 When the physician is presented as an expert witness and the facts testified to are merely hypothetical. (Lim v. Court of Appeals, G.R. No. 91114, 1992) 9. When the’ information was intended to be public, such as results of physical and mental ‘examinations ordered by the court and results of autopsies. 1 4d. Priest and Penitent Q: What are the requisites for Priest and Penitent Privilege? A 1. The confession must be made to the minister or priest in his professional character, and in the course of discipline enjoined by the rules ‘of practice of the denomination to which the priest or minister belongs; and 2. The confession must be of a penitential character. (Rule 130, Sec. 24) : When does the priest-penitent privilege does not apply? 1. Where 2 minister is consulted not as such (e.g. he's consulted as a friend or interpreter. 2. Where the confession is not made in the course of religious discipline 3, When there is waiver. PAGE 135 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ¢. Public Officers What are the requisites for public officers Privilege? 1. The communication must have been made to a public officer; 2. The communication was made in official confidence; and 3. Public interest would suffer by the disclosure of the information (Rule 130, Sec. 24(e]) Q: What is the Presidential Communications Privilege? A: There is a Recognized Presumptive Presidential Communications Privilege - it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three. (Neri v. Senate Committee, GR. No. 180643, 2008) Q: What are the elements of the Presidential Communications Privilege? - 1. Must relate to a “quintessential and non- delegable presidential power.” 2. Must be authored or “solicited and rect by a close advisor of the President or the President himself; and 3. Privilege may be overcome by a showing of adequate need such that the information ‘sought “likely contains important evidence and by the unavailability of the information elsewhere (Neri v. Senate Commitee, G.R. No, 180643, 2008) Q: What is the Newsman's Privilege (R.A. 1477, Sec. 1)? A: Without prejudice to his liability under the civi and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any ews-report or information appearing in said Publication which was related in confidence to ‘such publisher, editor or reporter unless the court ‘or @ House or committee of Congress finds that such revelation is demanded by the security of the State Q: What is the Privileged Communication in Labor Conciliation Proceedings (Labor Code, Art. 233) A: Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciiators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. Q: Define the concept of Secrecy of Bank Deposits (R.A. 1405, Sec. 2) A: All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be ‘examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, orn cases where the money deposited or invested is the subject matter of the litigation PAGE 136 OF 187ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is Judicial Privilege? ‘A: At the most basic level and subject to the principle of comity, Members of the Court, and Court’ officials and employees may not be compelled to testify on maiters that are part of the internal deliberations and actions of the Court in the exercise of their adjudicatory functions and duties, while testimony on matters external to their adjudicatory functions and duties may be compelled by compulsory processes. (Per Curiam ‘Supreme Court Decision in connection with the letter of the House Prosecution Panel to subpoena Justices of the Supreme Court, 2013) Q: What is Witness Protection Security and Benefit Act (RA. 6981, Sec. 7)? ‘A: All. proceedings involving application for admission into the Program and the action taken thereon shall be confidential in nature. No information or documents given or submitted in ‘support thereof shall be released except upon written order of the Department or the proper court si Q: What are the factors in determining if an information is a trade secret and hence protected from disclosure? a 4. The extent to which the information is known outside of the employer's business; 2. The extent to which the information is known by employees and others involved in the business; 3. The extent of measures taken by the employer to guard the secrecy of the information; 4, The value of the information to the employer and to competitors; 5. The amount of effort or money expended by the company in developing the informatior and — 6. The extent to which the information could be easily or readily obtained through an independent source. (Air Philippines vs. Pennswell,Inc., G.R. No. 172835, 2007) f. Parental and Filial Privilege Q: What is the rule with regard to parental and filial privilege? No person may be compelled to testify against his parents, other direct ascendants, children and other direct descendants. (Rule 130, Sec. 25) : Distinguish parental privilege from filial privilege. 1. Parental Privilege: A parent cannot be compelled to testify against his child or direct descendants 2. Filial Privilege: A child may not be compelled to testify against his parents or other direct ascendants @: When does the privilege does not apply? A ‘A person who voluntariy testifes against his parents 2. Persons other than direct ascendants and descendants testifies against the person. The privilege under the provision mentioned applies only to direct ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. (Lee v. Court of ‘Appeals, G.R. No. 177861, 2010) Q: To which courts does the Judicial Affidavit, Rule apply? s 1, The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shar’ a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC; 2. The Regional Trial Courts and the Shari'a District Courts; 3. The Sandiganbayan, the Court of Tax ‘Appeals, the Court of Appeals, and the Shari'a Appellate Courts; 4. The investigating officers and bodies authorized by the Supreme Court to PAGE 137 0F 157"ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW receive evidence. including the Integrated Bar of the Philippine (IBP); and 5. The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of Procedure contravene the provisions of this Rule. (JAR, Sec. 1(a)) Q: What are the contents of a judicial affidavit? (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and Neither he nor any other person then present or assisting him coached the witness. regarding the latter's answers, (JAR, Sec. 4a) Q A: A judicial affidavit shall be prepared in the @: What is the procedure in using judicial language known to the witness and, if not in affidavits? English or Filipino, accompanied by a translation in English or Filipino, and shall contain the A following: 1 (a) Tho name, age, residence or business ‘address, and occupation of the witness; (b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the ‘examination is being held; (c) Astatement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury: (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and 2 (3) Identity the _alttached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; {e) The signature of the witness over his printed name; and (f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. (JAR, Sec. 3) (g) A sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that PAGE 138 OF 157 | The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: a. The judicial affidavits of their witnesses, which shall take the place of such witnesses’ direct testimonies; and . The parties’ documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plainti, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant. (JAR, Sec. 2(4)) ‘Shoulda party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavits a faithful copy Or reproduction ofthat original. n addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, falling which the latter shall not be admitted + This is without prejudice to the introduction of secondary evidence in place of the originalATENEO CENTRAL BAR OPERATIONS 2018 when allowed by existing rules. (WAR, Sec. 2(b)) The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it fon ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of ‘excluded evidence under Section 40 of Rule 132 of the Rules of Court. (JAR, Sec. 6) The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re- direct. In every case, the court shall take active part in examining the witness to truth of his testimony and to elicit the answers that it needs for resolving the sues. (JAR, Soc. 7) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (JAR, Sec. a(a)) ‘fier each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to ts admission, and the court shall immediately make its tuling respecting that exhibit. (JAR, Sec. a(b)) Since the documentary of object exhibits form part of the judicial affidavits that describe and authenticate them, iis sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. (AR, See. 6(6)) PAGE’ 139. OF 157 REMEDIAL LAW Q: What are the effects of failure to comply with the Judicial Affidavit Rule? A: 1 A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. (JAR, Sec. 4(b)) If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably deciines to execute judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same ‘as when taking his deposition except that the taking of a judicial affidavit shalt be understood to be ex parte. (JAR, Sec. 5) ‘A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. + The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing parly, and the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court. The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present. The court shall not admit as evidence Judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4.ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW + The court may, however, allow only ‘once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public Or private counsel responsible for their preparation and submission pays a fine of not less than P 1,000.00 nor more than P 5,000.00, at the discretion of the court. (JAR, Sec. 10) Q; Whatis the one-day examination of witness rule? A: A witness has to be fully examined in ove (7) day only. This rule shall be stricly adhered to subject to the court's discretion during trial on whether or not to extend the direct and/or cross- ‘examination for justifiable reasons. (OCA Cire. 05- 2012) Q: What happens on the last hearing day allotted for each party? A: 1. Presentation of last witness 2. Formal offer of evidence 3. Opposing party interposes objections 4. Judge rules on the offer of evidence in open court NOTE: However, the judge has the discretion to allow the offer of evidence in writing in conformity with sec. 35 Rule 132. (Par.5(), SC A.M. No. 03— 1-09) Q: How is a witness examined? A: 1. Inopen court; and 2. Under oath or affimation. (Rule 132, Sec. 1) Q: How shall the witness give his answer? ‘A: The answers shall be given orally, EXCEPT if: 1. The witness is incapacitated to speak; 2. The question calls for a different mode of answer, (Rule 132, Sec. 1) NOTE: However, check the Judicial Affidavit Rule which now allows the testimonies of witnesses to be in affidavits. Q: What are the obligations of a witness? ‘A: A witness must answer questions, although histher answer may tend to establish a claim against him/her. Note: Refusal of a witness to answer is punishable by Contempt (Rule 71) font kinds of immunity? eT Maeno a nung | Prohibits the use of the | Grants immunity to the witness's compete | witness from testimony and its fruits | prosecution for an in any manner in|ofense to which his connection with the| compelled testimony criminal prosecution of relates. This second the witness: immunity is broader. ‘(Gaiman v. Pamaran, G.R. Nos. (-71208-09 and L-71212-13, 1985) Not Under RA. 6981 (Witness Protection, Security and Benefit Act), A witness admitted into the witness protection program cannot refuse to testify or give evidence, produce books, documents, records, or writings necessary for the prosecution of the offense or offenses for which he has been admitted on the ground of the right against self- incrimination. (R.A 6981, Sec. 14) Q: What is direct examination? A: Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. PAGE 140 OF 157 |ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is cross examination? ‘A: Cross examination is the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify as to any matter stated in the direct examination, or connected therewith and all important facts bearing upon the issue. But, where the witness is an unwilling or hostile witness so deciared by the court oris an adverse party, the cross-examination shall only be on the subject matter of his examination-in-chief. The same rule applies to an accused who takes the stand. (Rule 132, Sec. 12) ; What are the different rules on cross ‘examination? A 4. AMERICAN RULE — Cross-examination must, be confined to matters inquired about in the direct examination, 2. ENGLISH RULE — A witness may be cross- ‘examined not only upon matters testified by him on his direct examination but also on all ‘matters relevant to the issue. We follow the English Rule. Q: Who can waive the right to conduct cross examination? ‘A: The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross- ‘examination. Thus, where a party has had the ‘opportunity to cross-examine a witness but failed to avail himself/herself of it, he/she necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. (Fulgado v. CA, G.R. No, L-61570, 1990) Q: What happens when a witness dies before he can be cross examined? A: Ifthe witness dies before his cross-examination is completed, his testimony on the direct may be stricken out only with respect to the testimony not covered by the cross-examination. The absence of the witness is not enough to warrant striking out his testimony for failure to appear for further cross- ‘examination where the witness has already been sufficiently cross-examined, and the matter on which the cross-examination is sought is not in controversy. (People v. Sefieris, G.R. No. L- 48883, 1980) Q: What happens when a witness is not cross examined? ‘A: Ifthe witness was not cross-examined because of causes attributable to the cross examining party and the witness had always made himself available for cross examination, the direct testimony of witness shall remain in the record and cannot be ordered stricken off because the cross examiner is deemed to have waived the right to ‘cross-examine witness. (De la Paz v. IAC, G.R. No. 71537, 1987) : What is re-direct examination? ‘A: Itis the further examination by a party of his/her own witness after cross-examination on matters dealt with during the cross-examination and on other matters may be allowed by the court in its discretion in order to allow the witness-in-chief to explain or supplement his answers given during the cross-examination Q: What is re-cross examination? A: It is the examination of a witness who has finished hisIher examination-in-chief, _cross- ‘examination, and re-direct examination, by the counsel who cross-examined on matters stated in the re-direct examination. However, other matters may be allowed by the court in its discretion. PAGE 141.0F 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: What is the rule on recalling a witness? A: After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court A: Itis a question which suggests to the witness the answer which the examining party desires. Itis not allowed, EXCEPT: 1. On cross-examination; 2. On preliminary matters; 3. When there is difficulty in getting direct and inteligible answers from a witness who is ignorant, or a child of tender years, or is of feebie mind, or a deat. 4, Of an unwilling or hostile witness; or 5. Of a witness who is an adverse parly or an officer, director, or managing agent of a public co private corporation or of a partnership or association which is an adverse party. (Rule 130, Sec. 10) @: How do you test whether a question is leading or misleading? A: The test is whether a question is leading or not is the suggestiveness of its substance and not the form of the question. If the question suggests the answer desired by putting words into the mouth of the witness, itis leading. (Rule 130, Sec. 10) @: How can an adverse party’s witness be impeached? A: 1. Contradictory evidence; 2. Evidence of bad character, 3. Evidence of bias, interest, incompetence; and 4. Evidence that he/she has made at other times statements inconsistent with his/her present testimony, (PRIOR INCONSISTENT STATEMENTS) prejudice, or REMEDIAL LAW General Rule: The adverse party's witness cannot be impeached by evidence of particular wrongful acts. Exception: It may be shown by the examination of the witness or the record of the judgment that the adverse party's witness has been convicted of an offense. Q: Distinguish between impeaching through contradictory evidence and through prior inconsistent statements. A: Cr eU ie Meo Euan BN) Prior inconsistent statements refer to statements, oral or documentary, made by | the witness sought to be | impeached on occasions other than the trial in which he is testifying. (Regalado, Evidence, 851) | | Contradictory evidence roers. to einer testimony. of the same wines, oF alter evidence presented by bim in the game ©850- conticting (Rogalado, | which are Evidence, 851) witnesses have given testimonies, inconsistent with their present testimony and which would accordingly cast a doubt on their credibility [(Vitaton v. 1AC, GR. No. | 79781, 1986) Q: What are the other modes of impeaching a witness? A 1. Impeachment by showing improbability or unreasonableness of testimony. 2. Impeachment by showing bias, prejudice, and. hostility Impeachment by prior inconsistent acts or conduct. 4. Impeachment by showing social connections, ‘occupation and manner of living, 5. Impeachment by showing interest. 6. Impeachment by showing intent or motive PAGE 142 OF 157 SdATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Can a party impeach his own witness? ‘A: General Rule: A party producing a witness is ot allowed to impeach his/her own witness’ credibility. Exceptions: 1, Ifthe witness is an adverse party. 2. If the witness has become an unwiling or hostile witness. 3. If the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will (Femandez v. Tantoco, GR. No. 25489, 1926) Q: How can a party impeach his own witness? Evidence contradictory to witness’ testimony; 2. Evidence of prior inconsistent statements of the witness. : Who is an adverse party witness? ‘A: In order to be considered an adverse party, the witness must be adverse to the party calling himiner and be actively seeking a recovery against, or opposing a recovery by, such party, or 2 person for whose immediate benefit the action was brought or defended Q: When can a witness be considered as a hostile or unwilling witness? ‘A: Awitness will be considered hostile or unwilling upon: 1. Declaration by the court; 2. Adequate showing of his/her adverse interest, unjustified reluctance to testify, or his/her having misled the party into calling him/her to the witness stand. Q: What is a hostile witness? ‘A: Ahostile witness is one who manifests somuch hostility or prejudice under examination-in-chief that the party who has called such witness is allowed to cross-examine him/her, that is to treat him/her as though he/she had been called by the opposite party. Q: When can a witness be impeached by prior Inconsistent statements? A: General Rule: A witness cannot be impeached by proof of inconsistent statements until the proper foundation or predicate has been laid. Exception: Failure to lay a proper foundation may be waived by the failure of the adverse Party to object in proper form to the instruction Of the alleged inconsistent statement. Q: How is “laying the predicate” done? By relating to him such statements with the circumstances of the times and places and the persons present. 2. By asking him whether he made such statements 3. By giving him a chance to explain the inconsistency. 4. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. (Rule 132, Sec. 13) Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete. However, such defect can be waived if no objection is raised when the document involved is offered for admission. (Regalado, Evidence, 852) @: When does the “laying down the predicate” does not apply? A 1. Ifthe prior inconsistent staternent appears in a deposition of the adverse party, and not a mere witness, as such statements are in the nature of admissions of said adverse party. (Regatado, Evidence, 852) 2. Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him. (Regalado, Evidence, 852 citing Juan Ysmael & Co., Inc, v. Hashim, et. al, G.R. No. L-26247) PAGE 143 OF 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the rule on good character of a witness? A: Evidence of the good character of a witness is not admissible until such character has been impeached. (Rule 132, Sec. 14) Q: What is an ADMISSION? A; A voluntary acknowledgement in express terms (or by implication by a party interest or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue. (In other words, itis an acknowledgement of factls opposite to the fact/s raised or positions taken in court.) (see Rule 130 Sec. 26) : What are the two (2) types of Admissions? A 1, JUDICIAL ADMISSION — An Admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made ‘one made in a judicial proceeding under consideration. (Rule 129 Sec. 4) 2. EXTRAJUDICIAL ADMISSION - one made out of court or in a judicial proceeding other than the one under consideration, (Perry v. Simpson, Gon. 313 cited in Riano) Q: What are the components of the res inter alios acta rule? A: 1. The nights of a party cannot be prejudiced by an act, declaration, or omission of another (Rule 130, Sec. 28) 2, Previous Conduct Rule: Evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same act at another time (Rule 130, Sec. 34) NOTE: This rule only applies to extrajudicial declarations (People v. Raquel, G.R. No. 119006, 2006) What are the exceptions to the res inter alios. acta rule? 1. Admission by a Co-Partner or Agent (Rule 130, Sec. 29) 2. Admission by a Co-Conspiralor (Rule 130, Sec. 30) 3. Admission by Privies (Rule 130, Sec. 31); 4. Admission by Silence (Rule 130, Sec. 32; see Tan Siok Kuan v. Returta, G.R. No. 175085, 2016, J. Perez); and 5. Interlocking Confessions (People v. Mut, G.R. No. 181043, 2008) 6. Statements made by an employee against his employer are admissible against the latter. where the statements while in employ and where they concerned a matter within the scope of his employment. (Mahlanat v. Wild Canid Survival & Research Center, 588 F.2d 626, 8th Cir. 1978) Q: What is the Rule on Admissions by a Party? ‘A: The act, deciaration, or omission of a party as toa relevant fact may be given in evidence against him. (Rule 130, Sec. 26) company binding upon such company? ‘A: The admissions of the president of a company are binding on the company under the rule that admissions of liability by a party may be given against it. (Keller & Co. v. COB, G.R. No. L-68097, 1986) : What are SELF-SERVING DECLARATIONS? ‘A: Unsworn statements made by the declarant out of court and which are favorable to his interests (People v. Omictin, G.R. No. 188130, 2010) Q: Aro Self-Serving Declarations admissible? A: Self-serving dectarations are not admissible. (People v. Omictin, G.R. No. 188130, 2010) PAGE 144 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When are self-serving admissions admissible? A 1. Diaries, if tis against interest, ori it is in the nature of books of accounts. Letters prepared not in anticipation of tigation are not considered self-serving declarations. (See Rule 130 Sec. 5) 2, Part of the res gestae, including spontaneous statements and verbal ats. (See Rule 130 Sec. 42) 3. When in the form of complaint and exclamations of pain and suffering 4. When part of a confession offered by the prosecution. (such as those favorable to the accused, e.. I shot him because he was going to stab me.) 5, When the creaibilty ofa party has been assailed (on the ground that his testimony is a recent fabrication 6. When offered by the opponent. 7. When offered without objection or there is waiver Q: What is the Rule on Compromises? A 1, In CIVIL CASES: An offer of compromise is not an admission of any liability and is not admissible in evidence against the offeror. (Rule 130, Sec. 27) 2. In CRIMINAL CASES’ General Rule: an offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Rule 130, Sec. 27) Q: What are the Exceptions? AB 1. Those involving quasi-offenses (criminal negligence); or 2. Those allowed by law to be compromised, (Rule 130, Sec. 27) Q: What are those NOT admissible in evidence against the accused who made the plea or offer? A 1.A plea of guilty ater withdrawn, oF 2. Anunaccepted offer of a plea of guilty to alesser offense. (Rule 130, Sec. 27) Q: What is the Rule on Offer of Payment of Expenses occasioned by injury (Good Samaritan Doctrine)? : An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or Criminal liability for the injury. (Rule 130, Sec. 27) Q: What is the Rule on Admissions by a third party (Res Inter Alios Acta)? ‘A: The rights of an accused cannot be prejudiced by the extra-judicial dectarations of another person. (People v. Raquel, G.R. No. 119006, 1996) NOTE: Section 28, Rule 130 refers to the first branch of the res inter alios acta rule. The second branch can be found in Section 34, Rule 130— similar acts as evidence. (Regalado 2008 ed., 758) Q: What are the requisites for an act or declaration of a partner or agent of the party to. be admitted in evidence against his co-partner or agent? (PSE) A 1. That the partnership or agency be previously proven by evidence other than the admission itself 2. The acts or deciarations refer to a matter within the scope of his authority, 3. The acts or declarations were made during the existence of the partnership or agency. (Rule 130, Sec. 29) NOTE: The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Rule 130, Sec. 29) PAGE 145:0F 157°ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: When can the act or declaration of a conspirator be given in evidence against the co-conspirator? (P) ‘A: When the following requisites are present: 1. That the conspiracy be first proved by evidence other than the admission itself 2. That the admission relates to the common. object 3. That it has been made while the declarant was ‘engaged in carrying out the conspiracy. NOTE: Applicable only to extrajudicial acts or declaration but NOT to testimony given on the stand at the trial where the defendant has the Opportunity to cross-examine the declarant. (Peopie v. Serrano, G.R. No. -7973, 1959} Q: What is the rule on Admission by Privies? A: Where one derives title to property from another, the act, deciaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (Rule 130, Sec. 31) Q: What are the Exceptions? ‘A: The declaration made subsequent to the transfer of the property shall be admissible: 1. Where the declaration was made in the presence of the transferee and he acquiesces in the statements or asserts no rights where he ought to speak 2. Where there has been prima facie case of fraud established. 3. Where the evidence establishes @ continuing conspiracy to defraud which conspiracy exists between the vendor and the vendes. : What is the Rule on Admission by Silence? ‘A: An admission by silence or an ADOPTIVE ADMISSION may be given in evidence against the Party who does or says nothing where the statement would naturally call for a response or reaction. (People v. Kenrick Development Corp, G.R_No. 149576, 2006) Q: What are the requisites before the Silence of a Party can be Taken as an Admission of What is Said? He heard and understood the statement; He was at liberty to interpose a denial; The statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally for an answer: The facts were within his knowledge; and 5. The fact admitted or the inference to be drawn, from his silence would be material to the issue. (People v. Paragsa, G.R. No. L-44060, 1978) oNep Q: What is a CONFESSION? ‘A: A confession is an acknowledgement in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. (People v. Maqueda, G.R. No. 112983, 1995) Q: What are the differences between an Admission and a Confession? A Poss ‘A statement of fact | Involves. an which does notinvolve | acknowledgement of ‘an acknowledgement | guilt or liability cof guilt or liability May be express or [tacit | May be made by third | Can be made only by persons and, in| the party himself and, ‘ADMISSION Must be express: certain cases, are | in some instances, are admissible against a | admissible against his L party __| co-accused (Ladiana R. No. 144293, 2002) PAGE 146 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 Q: What are the requisites for the Admissibility of Extrajudicial Confessions? A 1.The confession must involve an express and categorical acknowledgement of guil 2. The facts admitted must be constitutive of a criminal offense. 3. The confession must have been given voluntarily. 4. The confession must have been intelligently made, the accused realizing the importance or legal significance of his act. 6. There must have been no violation of Section 12, Art. Ill of the 1987 Constitution. (People v. Muleta, G.R. No. 130189, 1999) Q: Are extra-judicial confessions binding? ‘A: The extrajudicial confession of an accused is binding only upon himself and is not admissible against his co-accused. (People v. Lising, G.R. No. 106210-11, 1998) Q: When are extra-judicial confessions binding against a co-accused? A 1. If the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness, as where it was made in his presence and he did not remonstrate against his being implicated by it; (waiver) 2. If the co-acoused persons voluntarily and independently executed identical confessions ‘without conclusions; Confessions corroborated by other evidence and without contradiction by the co-accused who was present (INTERLOCKING CONFESSIONS) 3. Where the co-accused admitted the facts stated by the confessant after being apprised of such confession; 4. Ifthe confession is used only as a corroborating ‘evidence against the other co-accused charged 2s co-conspirators; 5, Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, 6. Where the co-conspirator used as circumstantial evidence corroborated by other evidence of record. (People v. Lising, G.R. No. 106210-11, 1998) REMEDIAL LAW Q: What is the General Rule on Previous conduct as evidence? A: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. (Rule 130, Sec. 34) Q: What are the Exceptions? A: Similar acts may be received as evidence to prove. (SIPPS-HCU) 1. A speeific intent or knowledge 2. Identity 3, Plan 4, System 5. Scheme 6 Habit 7. Custom or usage 8. and the like. (Rule 130, Sec. 34) NOTE: Rule 130, Sec. 34 is the second branch of the res inter alios acta rule and applies to both civil ‘and criminal cases. (Regalado 2008 ed.) Q: What is an Unaccepted offer? A: An offer in writing to pay a particular sum of ‘money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (Rule 130, Sec. 35) Q: What is the rule on Hearsay? A: A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as ‘otherwise provided in these rules. (Rule 130, Sec. 36) NOTE: It may be verbal or in writing, PAGE 147 OF 157° (ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Corporation A shipped from Singapore to the Philippines 10 container vans of soft wheat flour with seals intact. The shipment was. insured against all risks and consigned to Corporation B. However, upon receipt of the container vans at its warehouse, Corporation B discovered substantial shortages in the number of bags of flour delivered. It claims that there were two instances when the seals were broken. For the second instance, no documentary or testimonial proof on the matter was presented other than the Survey Report. The person who prepared the said report was also not presented. Was the alleged second instance proven by competent evidence? ‘A: (DEL CASTILLO) NO. The person who Prepared the said report was not presented in court to testify on the same. Thus, the said survey report has no probative value for being hearsay. It is a basic rule that evidence, whether oral or documentary, is hearsay, if its probative value is ot based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand, Moreover, "an unverified and unidentified private document cannot be accorded probative value. It is precluded because the party against whom it is presented is deprived of the right and opportunity to cross-examine the person to whom the statements or writings are attributed. Its executor or author should be presented as a witness to Provide the other party to the litigation the opportunity to question its contents. Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect and of no probative value.” (Marina Port Services, Inc. v. American Home Assurance Corp., G.R. No. 201822, August 12, 2015) What is the Doctrine of Independently Relevant Statements? ‘A: The doctrine on independently relevant statements that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (2) constitutes a fact in issue oF (b) is circumstantially relevant to the existence of such fact. (Republic v. Heirs of Alejaga, G.R. No. 146030, 2002) Q: What are the two classes of Independently Relevant Statements? A: 1. Those statements which are the very facts in issue. 2. Those statements which are circumstantial evidence of the facts in issue. Examples: ~ Statement of a person showing his state of mind; = Statement of a person showing his physical condition: = Statement of 2 person to infer a state of mind of another person; = Statements which may identify the date, place and person in question; ~ Statements to show a lack of credibility of a witness. (Estrada v. Desierto, GR. Nos. 146710-15, 2001) @: What are the EXCEPTIONS TO THE HEARSAY RULE? A: Dying dectaration Declaration against interest Act or declaration about pedigree Family reputation or tradition regarding pedigree ‘Common reputation Part of the res gestae Entries in the course of business Entries in oficial records Commercial ists and the like 0. Learned treatises 11. Testimony or deposition at a former trial (Rule 130(C)(6), Secs. 37-47) PAGE 148 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 NOTE: The list is not exclusive. There are other exceptions laid down by special laws and jurisprudence. @: What are the Requi DECLARATIONS? a 4. Declaration is made by dying person 2, Made under the consciousness of an impending death 3. Must relate to the cause and circumstances surrounding declarant’s death (not the death of another person) 4. Dectaration is offered in a case where declarant’s death is the subject of inquiry 5. That the declarant would have been ‘competent to testify had he survived. 6. Declarant should have died. (Rule 130, Sec. 37) NOTE: Dying declarations are admissible in both civil and criminal cases. Q: What are the Requisites for DECLARATION AGAINST INTEREST? & 1. Declarant must not be available to testify due to death, mental incapacity, or physical incompetence, or outside the territorial jurisdiction of the country if exact whereabouts are unknown. 2. The declaration must concem a fact cognizable by the declarant. 3. The circumstances must render it improbable that a motive tofalsify existed. (Rule 130, Sec. 38) REMEDIAL LAW es for act or Q: What are the req declaration about pedigree? Declarant is dead or unable to testify; Necessity that pedigree be in issue; Declarant is a relative of the person whose pedigree is in question; 4. Declaration was made before the controversy ‘occurred; and 5. The relationship between the declarant and the person whose pedigree is in question must bbe shown by evidence other than such act or declaration. (Rule 130, Sec. 39) NOTE: Where the subject of the declaration is the pedigree of the deciarant, it must be shown by evidence other than such act or declaration, (Rule 130, Sec. 39) @: What are the requisites for Family reputation or tradition regarding pedigree? i = 1. Thereis controversy in respect tothe pedigree cof any member of a family; 2. The reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and 3. The witness testitying to the reputation or tradition regarding the pedigree of the person concerned must be a member of the family of said person either by consanguinity or affinity (Rule 130, Sec. 40) Q: What may be Established by Common Reputation? A: 1. Facts of public or general interest more than 30 years old 2. Marriage and related facts. 3. Individual moral character. (Rule 190, Sec. 41) PAGE 149.0F 197° MnATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the requisites for Admissibility of Common Reputation Respecting Facts of Public or General Interest? 1. The facts must be of public or general interest 2. The common reputation must have been ancient, i., more than tity (30) years oi 3._ The reputation must have been formed among a class of persons who were in a position to have some sources of information and to Contribute inteligently to the formation of the opinion; and 4. The reputation must have been existing previous to the controversy. (Rule 130, Sec. 4) Q: What are the requisites for Admissibility of Common Reputation Respecting Moral Character? A 1. That itis the reputation in the place where the person in question is best known; and 2. That it’ was formed previous to the controversy. (People v. Alegado, G.R. No. 93030-31, 1991) Q: What are the 2 types of res gestae utterances? re a. Spontaneous Statements Requisitos: 1. There must be a startling occurrence; 2. The statement must be made before the dectarant had the time to contrive or devise a falsehood, and 3. The statement must concern the occurrence in question and its immediate attending circumstances, (People v. Estibal, G.R. No. 208749, 2014) b. Verbal Acts ~ utterances which accompany ‘some equivocal act or conduct to which it 1s desired to give a legal effect. Requisites: 1. Act or occurrence characterized must be equivocal 2. Verbal acts must characterize or explain the equivocal act; 3. Equivocal act must be relevant to the issue; and 4, Verbal acts must be contemporaneous with equivocal act (Talidane v. Falcom, G.R. No. 172031, 2008) Q: What is the difference between Res Gestae and Dying Declaration? A: Ba hice elm Niels It is the event itself] A sense of impending which is speaking | death takes the place through the witness | of an oath and the law regards the declarant as testifying iy may precede, | Confined to matters accompany or follow | surrounding or the events occurring | occurring after the as @ part of the | homicidal act. (People Principal act (People | v. Peralta, G.R. No. v. Peralta, G.R. No. | 94570, 1994) 94570, 1994) Q: What are the requisites for entries in the course of business? AD 1. Person who made the entry must be dead or unable to testify 2. Entries must have been made at or near the time of the transaction to which they refer; 3. Entrant must have been in a position to Know the facts stated in the entries; 4, Entries must have been made by entrant in his professional capacity or in the performance of his duty; 5. Entries were made in the ordinary or regular ‘course of business or duties. (Rule 130, Sec. 43) PAGE 150 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 @: What is the difference between the Business Records Exception to Hearsay under the Rules on Evidence and under the Rules on Electronic Evidence? A: Ta reel elie TR nny a aol The person who made | The — person who the entry must be dead | made the entry need or unable to testify not be dead or unable to testify Personal knowledge is not required The entrani/custodian | must have personal knowledge of the facts stated in the entries (Rule 130, Sec. 43 & Rule 8, REE) Q: What are the requisites for entries in official records? A: 1. Entry was made by a public officer, or by another person, specially enjoined by law to do so; 2. That it was made by the public officer in the Performance of his duties, or by such other Person in the performance of a duty specially enjoined by law; and 3. That the public officer or other person had sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official information, (Attica v. Caltex, , G.R. No. L-12986, 1966) Q: What are the requisites for commercial lists, and the like? i. 1. Itis a statement of maiters of interest to persons ‘engaged in an occupation; 2. Such statement is contained in a list, register, periodical or other published compilation; 3. Said compilation is published for the use of persons engaged in that occupation, and 4. Itis generally used and relied upon by persons in the same occupation. (Rule 130, Sec. 45) REMEDIAL LAW Q: What are the requisites for leamed treatises? 1. Apublished treatise, periodical or pamphlet on a subject of history, law, science, or art 2. Offered to prove the truth of a matter stated therein 3. Court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (Rule 130, Sec. 46) Q: What are the requisites for testimony or deposition at a formal trial: A 1. The witness whose testimony is offered in ‘evidence is dead or unable to testify; 2. Identity of parties; 3. Identity of issues; and 4. Opportunity of cross-examination of witness. NOTE: Actual cross-examination of the witness in the former trial is not a prerequisite. It is enough if there was an opportunity to cross-examine. (Rule 130, Sec. 47) : Are opinions admissible in evidence? 1. Opinion of expert witness (Rule 130, ‘Section 49) 2. Opinion of ordinary witness (Rule 130, Section 50) Q: What are the rules on expert witnesses? ‘A: The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence. (Rule 130, Sec. 49) PAGE'151 OF 187° Seen ee eeeATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: When may the opinion of a witness for which proper basis is given be received in evidence? A: 1. The identity of a person about whom he has adequate knowledge 2. A handwriting with which he has sufficient familiarity; and 3. The mental sanity of a person with whom he is. sufficiently acquainted, The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (Rule 130, Sec. 50) a evidence be admitted? hen can ‘A: The general rule is characteris not admissible in evidence. (Rule 30, Section 51). Character evidence may only be admissible in ‘evidence in: (a) CRIMINAL CASES - 1a) The accused may prove his good moral character, which is pertinent to the moral trait involved in the offense charged. ) The prosecution may prove his bad moral character pertinent to the moral trait involved in the offense charged in rebuttal {In rebuttal, the prosecution may present evidence that the Accused has a reputation for being a quarrelsome person The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbabilty of the offense charged. (Rule 130, Section 51(a)) and in (b) CIVIL CASES - when the evidence of the moral character of a party in a civil case is admissible only when pertinent (o the issue of character involved in the case. (Rule 130, Section 51(b)) Q: What is the reckoning period for the determination of the character of the person? ‘A: Settled is the principle that evidence of one’s, character or reputation must be confined to a time, not too remote from the time in question. In other words, whal is to be determined is the character or reputation of the at the time of the trial and prior thereto, but NOT at a period remote from the ‘commencement of the suil. (CSC v. Belagan, G.R. No. 132164, 2004) KK OFFER AND OBJECTION Q: What is the rule on offer of evidence? A: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (Rule 132, Sec. 34) Q: What are the exceptions to the formal offer rule? A: 1. the Same must have been duly identified by testimony duly recorded, and 2. the same must have been incorporated in the records of the case. (People v Libnao, G.R. No. 13860, 2003) 3, Exhibits which were not formally offered by the prosecution but were repeatedly referred to in the course of the trial by the counsel of the accused, (People v. Vivencio De Roxas et al, G.R. No. L- 16947, 1962) 4. (DEL CASTILLO) Evidence which have not been formally offered, but 1) have been duly identified by testimony duly recorded, and 2) have been incorporated to the records of the case (Guyamin v. Flores, G.R. No. 202189, April 25, 2017) : Why is offer of evidence necessary? ‘A: Formal offer is necessary because itis the duty of the judge to rest his findings of facts and his, judgment only and strictly upon the evidence offered by the parties atthe trial. (Candido, v CA, G.R.No, 107493, 1996 PAGE 152 OF 157 SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: How is evidence offered? ‘A: The purpose for which the evidence is offered ‘must be specified. (Rule 132, Sec. 34) Q: Why must the purpose of the evidence be specified? ‘A: Evidence submitted for one purpose may not, be considered for any other purpose. Such evidence may be admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another; otherwise the adverse party cannot interpose the proper objection. (Catuira v. CA, G.R. No. 105813, 1994) NoTE: 1. A party who has introduced evidence is NOT entitled as a matter of right to withdraw it on finding that it does not answer his purpose. 2. A party has the option of not offering into evidence the evidence identified at the trial and marked as an exhibit. The party may decide to formally offer iti it believes this will advance its cause, and then again it may decide not to do so at all. (Interspecific Transit v. Aviles, G.R. No, 86062, 1990) nen to make an offer? Dr EOCy el EVIDENCE It shall be offered after the presentation of a The offer must be | party's testimonial made at the time the | evidence. witness is called to testify. (Rule 132, Such offer shall be Sec. 35) done orally unless allowed by the court to be done in writing (Rule 132, Sec. 35) ae evn Nas Q: What are the purposes of objections? 1. To keep out inadmissible evidence that would cause harm to a client’s cause. The rules of ‘evidence are not self-operating and hence, must be invoked by way of an objection; 2. To protect the record, ie. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as @ ground for a future appeal; 3. To protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel; 4, To expose the adversary’s unfair tactics like his consistently asking obviously leading questions 8. To give the trial court an opportunity to correct, its own errors and, at the same time, warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court's appellate jurisdiction; and 6. To avoid a waiver of the inadmissibilty of an otherwise inadmissible evidence. (Riano, Evidence, 517-518) 7. To stop an answer to a question put to a witness oto prevent the receipt of a document in evidence until the court has had opportunity to make a ruling upon its admissibility Q; What are the rules on objections in relation how evidence was offered? in 1. As to evidence offered orally - to a question ut to a witness or to prevent the receipt of a document must be made immediately after the offer is made, ‘As to evidence offered in writing - to a question put to a witness or to prevent the receipt of a document shall be objected within period allowed by the court. 3. As to questions propounded in the course of the oral examination — to questions propounded in the course of the oral ‘examination or to prevent the receipt of a document shall be made as soon as the grounds therefor shall become reasonably apparent. PAGE153 OF 157 (SSATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW in any cate, the grounds for the objections must { afier the | (Francisco, be specified. | presentation | supra) of hither last | witness and Q: What are the rules on objections in relation to the type of evidence offered? | before he | rests his case. A (Francisco, een ke a2 ‘When the NOTES: same is 1. An objection to evidence cannot be made in presented. for ‘advance ofthe offer of the evidence sought to its view or be introduced evaluation, as | Should be mado | 2. (DEL CASTILLO) Objection to evidence | in ocular | either at the time cannot be raised for the first time on appeal inspection or | it is presented in (People v. Jimmy Gabuya y Adiawan, GR. Object | demonstration ocal No. 195245, February 16, 2015) evidence | s, or when the | inspection or party rests his | demonstrations Q: What is the importance of offer and case and the | or when it is| objection in relation to admissibility? real evidence | formally offered consists of A: Any objection to the admissibilty of evidence objects should be made at the time such evidence is exhibited in offered or as soon thereatter asthe objection tots court admissibility becomes apparent, otherwise the AS tothe] objection wit be considered waived and such qualification of |_ evidence will form part of the records of the case the witness =| as competent and admissible evidence. (Chua v. should be made | CA, G.R. No. 109840, 1999). At this point, the at the time he is} court has no power, on its own motion, to called to the | disregard the evidence. (People v. Yateo, G.R. No. stand and | L-9187, 1955) immediately after the opposing |__Q: Whattis the rule on repetition of objection? won winess | Fer tstinany.| A: When hy apparent int isther testimony. When it becomes reasonably apparent in the Testimon | fs catedto the |" omnorwise | course of tho examination of a winess that the Wridence | before harane | Uaified : questions being propounded are of the same class | before helshe | cpiociion should | as those to which objection has been made, i be raised when whether such objection was sustained or the objectionable | overruled, it shall not be necessary to repeat the ; ‘question is asked | objection, it being sufficient for the adverse party or after the | _torecord hister continuing objection to such class answoris given if | of question. (Rule 132, Sec. 37) the objectionable features became apparent by reason of such | answer. Docume | Formally nary” |onered by ne Ae tne H evidence | proponent y PAGE 184 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: When must the ruling of the court be given? ‘A: General Rule: The ruling of the court must be given immediately after the objection is made. Exception: Unless the court desires to take a reasonable time to inform itself on the question presented, However, notwithstanding the exception, the ruling shall always be made: 1. During the trial; and 2. At such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. (Rule 132, Sec. 38) Q: When must the reason for a ruling be stated? ‘A: The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (Rule 132, Sec. 38) Q: How are rulings of the trial court on procedural questions and on admissibility of evidence challenged? ‘A: The rulings of the trial court on procedural questions and on admissibility of evidence during the course of a trial are interlocutory in nature and. may not be the subject of separate appeals or review on certiorari. These are to be assigned as errors and reviewed in the appeal taken from the ‘rial court on the merits of the case. (Gatdula v. People, G.R. No. 140688, Jan. 26, 2001) Q: What is the rule on striking out an answer? ‘A: An objection to questions propounded in the course of oral examination must be interposed as soon as the ground(s) become evident. Faiture to interpose a timely objection may be taken as a waiver of the right to object and the answer will be admitted Q: What are the exceptions on the rule on striking out an answer? \: A motion to strike out the answer is available as a remedy where: 1. A witness answers a question after an objection has been sustained; 2. The irrelevance of the evidence becomes apparent only after an objection has been overruled; 3. Where a witness answers a question before an attomey can object. (Rule 132, Sec. 39) @: How may an answer be stricken off the record? A 1. On initiative of the court - Should a witness answer the question before the adverse party hhad the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. 2. On motion of party - of answers, which are incompetent, irelevant, or otherwise improper. Q: What is tender of excluded evidence? ‘A; (DEL CASTILLO) Where the court refuses to permit the counsel to present evidence which he thinks is competent, material and necessary to prove his case, the method to properly preserve the record to the end that the question may be saved for the purpose of review during appeal, is through the making of an offer of proof. (Jose Catacutan v. People, G.R. No. 175991, August 31, 2011) Q: What are the purposes of the rule on tender of excluded evidence? A 1. To inform the court what is expected to be proved. 2. So that a higher court may determine from the record whether the proposed evidence is competent, PAGE 55 OF 157 LnATENEO CENTRAL BAR OPERATIONS 2018, REMEDIAL LAW Q: What is the rule on Tender of Excluded Evidence? A: 1. Ifthe excluded evidence is documentary or object - the offeror may have the same attached to or made part of the record, (Rule 132, Sec. 40) 2. If the evidence excluded Is oral - If the evidence excluded i oral attached to or made part of the record. evidence is competent. and the substance of the proposed testimony. (Rule 132, Sec. 40) 1X. REVISED RULE ON SUMMARY PROCEDURE Q: What are the Cases Covered under Summary Procedure? A Civil Cases 4) All cases of forcible entry and unlawful detainer, iespective of the amount of damages or unpaid rentals sough to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000) b) All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one hundred thousand pesos {P100,000) or two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest and costs. (A.M. No. 02-11-09-SC) riminal Cases a) Violations of trafic laws, rules and regulations; b) Violations of the rental law; c) Violations of municipal or city ordinances: 4) Violations of B.P. 22 (Bouncing Checks Law) @) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six (6) months, or a fine not exceeding (P1,000), or both, irrespective of other imposable penalties, accessory or otherwise, oF of the civil liability arising therefrom; Provided. however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000). RULES OF PROCEDURE FOR SMALL CLAIMS CASES What are the Cases Covered under Small Claims? hi: 4. Purely civil in nature where the claim or relief prayed for by the plant is solely for payment or reimbursement of sum of money; and 2. The civil aspect of criminal actions, either fled before the institution of the criminal action, or reserved upon the fling of the criminal action in Court. (Revised Rules of Criminal Procedure, Rule 411) Q: Are decisions in small claims cases appealable? ‘A: The decision shall be final, executory and unappealable. However, small claims decisions may be assailed by a petition for certiorari under Rule 65. (A.L. Ang ‘Network v. Mondejar, G.R_No. 200804, 2014) XI. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES. Q: What Cases are governed by the Rules of Procedure on Environmental Cases? (A.M. No. 09-6-8-SC, Rule 1, Section 2) A: ‘These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: (2) Act No. 3572, Prohibition Against Cutting of Tindalo, Aki, and Molave Trees; (©) P.D. No. 705, Revised Forestry Code: (6) P.D. No. 856, Sanitation Code; (a) P.D. No. 978, Marine Pollution Decree; (@) P.D. No. 1067, Water Code; ()P.D. No. 1151, Philippine Environmental Policy of 1977; PAGE 156 OF 157ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW (g)P.0. No. 1433, Plant Quarantine Law of 1978; (h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (}) RA. No, 3571, Prohibition Against the Cutting, Destroying or injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, Schoo! Premises or in any Other Public Ground; @) RA. No. 4850, Laguna Lake Development Authority Act (k) RA No, 6969, Toxic Substances and Hazardous Waste Act; ( RA. No. 7076, People's Small-Scale Mining At (mn) RA. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, ‘orders, proclamations and issuances establishing protected areas; (0) RA. No, 7611, Strategic Environmental Plan for Palawan Act; (0) RA. No. 7942, Philippine Mining Act; (P) RA No. 8371, indigenous Peoples Rights Act; (q) RA. No. 8550, Philippine Fisheries Code; ()RA. No. 8749, Clean Air Act; (s) RA. No. 9003, Ecological Solid Waste Management Act; () RA. No, 9072, National Caves and Cave Resource Management Act; (u) RA. No. 8147, Wildlife Conservation and Protection Act; (¥) RA. No. 9175, Chainsaw Act (W) RA No. 9276, Clean Water Act; () RA. No. 9483, Oil Spill Compensation Act of 2007; and (¥) Provisions in CA. No. 141, The Public Land ‘Act, RA, No. 6557, Comprehensive Agrarian Reform Law of 1988; RA. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC), RA. No. 7308, Seed Industry Development Act of 1992; RA. No. 7900, High- Value Crops Development @: When can a Writ of Continuing Mandamus be availed of ? ‘A: When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law tule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, (AM. No. 09-6-8-SC, Rule 8, Section 1) fhen can a Writ of Kalikasan be availed of ? A: The writ is a remedy available to a natural or juridical person, entity authorized by law, people's ‘organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a ublic official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (A.M. No, 09-6-8-SC, Rule 7, Section 1) Q: What is a Citizen's Suit? ‘A: It is an action to enforce rights or obligations under environmental laws filed by any Filipino citizen in representation of others, including ‘minors or generations yet unborn. (A.M. No. 09- 8-SC, Rule 2, Section 5) Q: What does SLAPP stand for? A: SLAPP stands for Strategic Lawsuit Against Public Participation. It is a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules. (A.M. No. 09-6-8-SC, Rule 6, Section 1) PAGE 187 OF 157°The Ateneo Central Bar Operations would like to thank the following: Quisumbing Torres. Meri Firct Bier kee erator carmartan Fi (| ZGIAW ( k > | Patacse ZAMBRANO GRUBA CAGANDA & ADVINCULA ‘GUTIERREZ & ae te = cut rere | PROTACIO: