BRB_REMEDIAL LAW

GENERAL PRINCIPLES
I. CONCEPT OF REMEDIAL LAW
Q: What is Remedial Law?
ANS: Remedial Law prescribes the method of enforcing rights or obtaining redress
for their invasion (Bustos v. Lucero, G.R. No. L-2068, October 20, 1948).

II. SUBSTANTIVE LAW VIS-A-VIS REMEDIAL LAW

Q: What are the differences between Substantive Law and Remedial Law?
ANS: The following are the differences:
a. Substantive law is that part of the law which creates, defines and regulates
rights, or which regulates the rights and duties which give rise to a cause of
action; that part of the law which courts are established to administer; as
opposed to adjective or remedial law, which prescribes the method of
enforcing rights or obtains redress for their invasion (Bustos v. Lucero,
supra);
b. Substantive law creates vested rights; while no vested rights may attach to
nor arise from remedial law (Billones v. CIR, G.R. No. L-17566, July 30,
1965);
c. If the rule takes away a vested right, it is not procedural. If the rule creates
a right such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right then
the rule deals merely with procedure (Fabian v. Desierto, G.R. No.
129742, September 16, 1998);
d. Substantive law is prospective in application; remedial law may be made
applicable to actions pending and undetermined at the time of their
passage and are deemed retroactive in that sense and to that extent
(People v. Sumilang, G.R. No. L-49187, December 18, 1946);
e. Substantive law originates from the legislature; on the other hand, remedial
law does not originate from the legislature, but has the force and effect of
law (Alvero v. De La Rosa, G.R. No. L-286, March 29, 1946).

III. RULE-MAKING POWER OF THE SUPREME COURT

Q: State the rule-making power of the Supreme Court.
ANS: The Supreme Court has the constitutional power to promulgate rules
concerning pleading, practice and procedure (Sec. 5 [5], Article VIII, 1987
Constitution of the Philippines).

Q: Is the power to promulgate rules concerning pleading, practice and

procedure exclusive to the Supreme Court?
ANS: Yes. Unlike the 1935 and 1973 Constitutions, which empowered Congress to
repeal, alter or supplement the rules of the Supreme Court concerning pleading,
practice and procedure, the 1987 Constitution removed this power from Congress.
Hence, the Supreme Court now has the sole authority to promulgate rules
concerning pleading, practice and procedure in all courts (In Re: Petition for
Recognition of the Exemption of the Government Service Insurance System from
Payment of Legal Fees, A.M. No. 08-2-01-0, February 11, 2010).

A.LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT

Q: Give the limitations on the rule-making power of the Supreme Court.

1
 ANS: The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases; shall be uniform for courts of the same grade; and shall not
diminish, increase or modify substantive rights (Sec. 5 [5], Article VIII, 1987
Constitution of the Philippines).

B.POWER OF THE SUPREME COURT TO AMEND AND SUSPEND

PROCEDURAL RULES
Q: Does the Supreme Court have the power to amend procedural rules?
ANS: Yes. The Supreme Court has the sole prerogative to amend, repeal or even
establish new rules for a more simplified and inexpensive process, and the speedy
disposition of cases (Neypes v. Court of Appeals, G.R. No. 141524, September 14,
2005).

Q: Does the Supreme Court have the power to suspend procedural rules?
ANS: Yes. The courts have the power to relax or suspend technical or procedural
rules or to except a case from their operation when compelling reasons so warrant
or when the purpose of justice requires it. What constitutes good and sufficient
cause is discretionary upon the courts (Republic of the Philippines v. Imperial, G.R.
No. 130906, February 11, 1999). Some of the reasons may be:
a. The existence of special or compelling circumstances;
b. The merits of the case;
c. A cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules;
d. A lack of any showing that the review sought is merely frivolous and dilatory; and
e. The other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan,
G.R. No. 167471, February 5, 2007).

IV. NATURE OF PHILIPPINE COURTS

A.MEANING OF A COURT
Q: What is a Court?
ANS: A court is an organ of government belonging to the judicial department the
function of which is the application of the laws to controversies brought before it as
well as the public administration of justice (Black’s Law Dictionary, 5th ed., p. 356).

B.COURT DISTINGUISHED FROM A JUDGE

Q: What are the distinctions between a court and a judge?
ANS: A court is distinguished from a judge in the following manner:
a. A court is a tribunal officially assembled under authority of law; a judge is
simply an officer of such tribunal (Wagenhorst v. Philadelphia Life
Insurance, Co. 358 Pa. 55, 55 A2d 762);
b. A court is an organ of the government with a personality separate and
distinct from the person or judge who sits on it (People of the Philippines v.
Carlos, G.R. No. L-239, June 30, 1947);
c. A court is a being in imagination comparable to a corporation, whereas a
judge is a physical person (People ex rel. Herndon v. Opekl, 188 Ill 194, 58
NE 996);
d. A judge is a public officer while a court is an office (Todd v. United States
158 US 278);
e. The circumstances of the court are not affected by the circumstance that
would affect the judge. The continuity of a court and the efficacy of its
proceedings are not affected by the death, resignation or cessation from
the services of the judge presiding over it. In other words, the judge may

2
 f. 3 | P a g e resign become incapacitated or be disqualified to hold office
but the court remains. The death of the judge does not mean the death of
the court (ABC Davao Auto Supply v. Court of Appeals, G.R. No. L-
113296, January 16, 1998).

Q: Explain the rule that jurisdiction is conferred upon the court, not the judge.
ANS: When a case is filed in one branch, jurisdiction over the case does not attach
to the branch or judge alone to the exclusion of the other branches. Trial may be
held or proceedings continue by and before another branch or judge. The
apportionment and distribution of cases do not involve a grant or limitation of
jurisdiction; the jurisdiction attaches and continues to be vested in the RTC of the
province, and the trials may be held by any branch or judge of the court (Albano,
Remedial Law Reviewer, 2010 ed., p. 4).

C.CLASSIFICATION OF PHILIPPINE COURTS

Q: How are Philippine courts classified?
ANS: Philippine courts may be classified according to levels:
a. First Level – Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts, Municipal Circuit Trial Courts;
b. Second Level – Regional Trial Courts;
c. Third Level – Court of Appeals, Court of Tax Appeals, Sandiganbayan;
d. Fourth Level – Supreme Court (Herrera, Remedial Law I, 2007 ed., p.118).

D.COURTS OF ORIGINAL AND APPELLATE JURISDICTION

Q: What are courts of original jurisdiction?
ANS: It refers to those courts which, under the law, have the power to take judicial
cognizance of a case instituted for judicial action for the first time under the
conditions set by the law. In other words, it is where a case is commenced (21
C.J.S., Courts, §3, 1940).

Q: What are courts of appellate jurisdiction?

ANS: Courts of appellate jurisdiction refer to those courts which have the power to
review on appeal the decisions or orders of a lower court (21 C.J.S., Courts, §3,
1940).

E.COURTS OF GENERAL AND SPECIAL JURISDICTION

Q: What are courts of general jurisdiction?
ANS: They refer to courts with competence to decide on their own jurisdiction and
to take cognizance of all cases except those expressly withheld from them either by
the Rules or by law. A court may also be considered general if it has the
competence to exercise jurisdiction over cases not falling within the jurisdiction of
any court, tribunal, person or body exercising judicial or quasi-judicial functions (i.e.
RTC) (Riano, Civil Procedure A Restatement for the Bar, 2009 ed, p. 41).

Q: What are courts of special/limited jurisdiction?

ANS: These refer to courts whose jurisdiction extends only to particular or specified
cases (e.g. Family Courts, Court of Tax Appeals) (Riano, p. 41).

F.CONSTITUTIONAL AND STATUTORY COURTS

Q: Define Constitutional courts.
ANS: Constitutional courts are courts which owe their creation and existence to the
Constitution and thus cannot be legislated out of existence or deprived by law of the

3
 jurisdiction and powers unqualifiedly vested in them by the Constitution. In the
Philippines, only the Supreme Court is a Constitutional court (Riano, p. 39).

Q: What are statutory courts?

ANS: Statutory courts refer to courts created by law other than by the Constitution.
All courts in the Philippines, except the Supreme Court, are statutory courts (Riano,
p. 40).

G.COURTS OF LAW AND EQUITY

Q: What is a court of law?
ANS: A court of law is any tribunal duly administering the laws of the land (Riano,
Fundamentals of Civil Procedure, 2005 ed., p.64).

Q: What is a court of equity?

ANS: A court of equity is a tribunal which rules according to the precepts of equity
or justice, and is sometimes called “courts of conscience.” It adjudicates a
controversy according to the common precepts of what is right and just without
inquiring into the terms of the statutes (Ibid.).

Q: Are Philippine Courts courts of law, courts of equity, or both?

ANS: Both. Our courts are both a court of law and of equity (Alonzo v. Intermediate
Appellate Court, G.R. No. 72873, May 28, 1987).

H.PRINCIPLE OF JUDICIAL HIERARCHY

Q: Discuss the Principle of Judicial Hierarchy (Hierarchy of Courts).
ANS: The principle provides that lower courts shall initially decide a case before it is
considered by a higher court. A higher court will not entertain direct resort to it
unless the redress desired cannot be obtained in the appropriate courts (Santiago
v. Vasquez, G.R. Nos. 99289-90, January 27, 1993).

Q: What is the rationale for this principle?

ANS: The rationale is two-fold: (a) it would be an imposition upon the limited time of
this court; and (b) it would inevitably result in a delay, intended or otherwise, in the
adjudication of cases, which in some instances, had to be remanded or referred to
the lower court as the proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not a trier of facts (Heirs of
Bertuldo Hinog v. Hon. Achilles Melicor, G.R. No. 140954, April 12, 2005).

Q: Is the Principle of Judicial Hierarchy absolute?

ANS: No. In several cases, the court has allowed direct invocation of the Supreme
Court’s original jurisdiction on the following grounds:
a. Special and important reasons clearly stated in the petition;
b. When dictated by public welfare and the advancement of public policy;
c. When demanded by the broader interest of justice;
d. When the challenged orders were patent nullities; or
e. When analogous exceptional and compelling circumstances called for and
justified the immediate and direct handling of the case (Republic of the
Philippines v. Hon. Ramon S. Caguioa, etc., et al., G.R. No. 174385, February
20, 2013).

I.DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY

Q: What is the Doctrine of Non-Interference?

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 ANS: According to the doctrine, courts of equal and coordinate jurisdiction cannot
interfere with each other’s orders. It also bars a court from reviewing or interfering
with the judgment of a co-equal court over which it has no appellate jurisdiction or
power of review. The doctrine applies with equal force to administrative bodies
(Villamor v. Salas, G.R. No. 101041, November 13, 1991).

JURISDICTION
Q: Define Jurisdiction.
ANS: Jurisdiction is the power and authority of the court to hear, try and decide a
case (Zamora v. Court of Appeals, G.R. No. 78206, March 19, 1990), as well as to
enforce or execute its judgments or final orders. The power to control the execution
of its jurisdiction is an essential aspect of jurisdiction (Echegaray v. Secretary of
Justice, G.R. No. 132601, January 19, 1999).

Q: Is jurisdiction substantive or procedural?

ANS: Both. Jurisdiction over the subject matter is conferred by the Constitution or
by law while jurisdiction over the person is acquired by his voluntary submission to
the authority of the court or through the exercise of its coercive processes.
Jurisdiction over the res is obtained by actual constructive seizure placing the
property under the orders of the court (Zamora v. Court of Appeals, supra).

I. OVER THE PARTIES

Q: What does jurisdiction over the parties mean?
ANS: Jurisdiction over the parties is the legal power of the court to render personal
judgment against a party to an action or proceeding (Black’s Law Dictionary, 5th ed.,
767).

A.HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED

Q: How does the court acquire jurisdiction over the plaintiff?
ANS: Jurisdiction over the plaintiff is acquired by the plaintiff’s filing of the complaint
or petition or other initiatory pleading. By doing so, he submits himself to the
jurisdiction of the court (Davao Light & Power Co. Inc v. Court of Appeals, G.R. No.
93262, December 29, 1991).

B.HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED

Q: How does the court acquire jurisdiction over the defendant?
ANS: Jurisdiction over the defendant is obtained either by a valid service of
summons upon him or by his voluntary submission to the court’s authority or other
coercive process upon him (Ibid.).

II. OVER THE SUBJECT MATTER

A.MEANING OF JURISDICTION OVER THE SUBJECT MATTER
Q: Define jurisdiction over the subject matter.
ANS: Jurisdiction over the subject matter is the power to hear and determine cases
of the general class to which the proceedings in question belong and is conferred
by the sovereign authority which organizes the court and defines its powers (Reyes
v. Diaz, G.R. No. L-48754, November 26, 1941).

B.JURISDICTION VERSUS THE EXERCISE OF JURISDICTION

Q: Distinguish jurisdiction from the exercise of jurisdiction.

5
 ANS: Jurisdiction is the authority to hear and determine a case. It does not depend
either upon the regularity of the exercise of that power or upon the rightfulness of
the decisions made. The authority to decide a case at all, and not the decision
rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the
person and subject matter, the decision of all other questions arising in the case is
but an exercise of that jurisdiction (Herrera v. Barretto, G.R. No. 8692, September
10, 1913).

C.ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT

Q: Distinguish between error of jurisdiction and error of judgment.
ANS: An error of judgment is one that the court may commit in the exercise of its
jurisdiction. Such an error does not make the court’s decision void and it may serve
only as a ground for reversal if it is shown that prejudice has been caused by it. An
error of judgment can be reviewed only by an appeal. On the other hand, an error of
jurisdiction is one where the act complained of was issued by the court, officer or a
quasi-judicial body without or in excess of jurisdiction, or with grave abuse of
discretion which is tantamount to lack or excess of jurisdiction. An error of
jurisdiction renders a judgment void or at least voidable and which error is
correctable only by the extraordinary writ of certiorari (Jaro v. Court of Appeals,
G.R. No. 127536, February 19, 2002).

D.HOW JURISDICTION IS CONFERRED AND DETERMINED

Q: How is jurisdiction determined?
ANS: Jurisdiction over the subject matter is determined by the allegations of the
complaint regardless of whether or not the plaintiff is entitled to the claims asserted
therein (Sunny Motors Sales, Inc. v. Court of Appeals, G. R. No. 119900, August
16, 2001). It is not determined by:
a. The defenses in the answer or motion to dismiss (exception: defense of tenancy);
or
b. By the evidence in the trial; or
c. Consent or agreement of the parties; or
d. By estoppel (Tolentino v. Court of Appeals, G.R. No. 123445, October 6, 1997).

Q: How is jurisdiction conferred?

ANS: Jurisdiction over the subject matter is conferred by the Constitution or by
law. Nothing can change the jurisdiction of the court over the subject matter. That
power is a matter of legislative en actment which none but the legislature may
change (Zamora v. Court of Appeals, supra). It is not conferred by:
a. A court’s unilateral assumption of jurisdiction (Tolentino v. Social Security
Commission, G.R. No. L-28870, September 6, 1985);
b. Contract (Luna v. Carandang, G.R. No. L-27145, November 29, 1968);
c. Compromise (Kaisahan ng mga Manggagawa sa La Campana v. De Los
Angeles, G.R. No. L-30798, November 26, 1970);
d. Agreement of the parties; or
e. Acquiescence of the court (Republic of the Philippines v. Estipular, G.R. No.
136588, July 20, 2000).

E.DOCTRINE OF PRIMARY JURISDICTION

Q: Discuss the Doctrine of Primary Jurisdiction.
ANS: Under the Doctrine of Primary Jurisdiction, courts will not resolve a
controversy involving a question which is within the jurisdiction of an administrative
tribunal, especially where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services

6
 of said tribunal in determining technical and intricate matters of fact (Omictin v.
Court of Appeals, G.R. No. 148004, January 22, 2007).

F.DOCTRINE OF ADHERENCE OF JURISDICTION

Q: What does the Doctrine of Adherence of Jurisdiction (Continuity of
Jurisdiction) mean?
ANS: The doctrine provides that once a court has acquired jurisdiction, such
jurisdiction cannot be ousted by subsequent events although they be of a character
which would have prevented jurisdiction from attaching in the first instance. Once
jurisdiction has been acquired, it continues until the court finally disposes of the
case (Ramos v. Central Bank of the Philippines, G.R. No. L-29352, October 4,
1971).

Q: X seeks to recover PhP500,000 from Y so he filed a case with the RTC.

During the trial, X was able to prove that his entitlement is only PhP150,000
which is below the jurisdictional amount of the RTC. Can the court validly
render a judgment for the sum of PhP150,000?
ANS: Yes. Under the doctrine of adherence of jurisdiction, once the court acquires
jurisdiction over the case, the court continues to exercise such jurisdiction until its
final adjudication even if the amount awarded is below the jurisdictional amount
under the law.

G.OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER

Q: May the court, motu proprio, dismiss the case if it finds that it has no
jurisdiction over the subject matter?
ANS: Yes. The court may dismiss the case on its own initiative, if it appears from
the pleadings or the evidence on record that it has no jurisdiction over the subject
matter (Sec. 1, Rule 9).

Q: When may a party raise the issue of jurisdiction over the subject matter?
ANS: A party may object to the jurisdiction of the court as a ground in a motion to
dismiss (Sec. 1 [b], Rule 16) or as an affirmative defense in the answer (Sec. 6,
Rule 16).

Q: At what stage of the proceedings may the question of jurisdiction be

raised?
ANS: Objection to the court’s jurisdiction over the subject matter may be raised at
any time during the proceedings, even for the first time on appeal (People of the
Philippines v. Cheng, G.R. No. 120158-59, September 15, 1997).

H.EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION

Q: What is the effect of estoppel on objections to jurisdictions?
ANS: While as a general rule, objections to the jurisdiction over the subject matter
may be raised at any stage of the proceedings, estoppel may in certain instances
bar the raising of such objection.

NOTE: The objection must have been raised so belatedly so as to give rise to the
presumption that the party entitled to assert it had abandoned or declined to assert
it. A party who has invoked the jurisdiction of the court over a particular matter to
secure affirmative relief cannot be permitted to afterwards deny that same
jurisdiction to escape liability (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15,
1968).

7
 NOTE: The active participation of a party in a case is tantamount to recognition of
that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction.
This only applies to exceptional circumstances (Concepcion v. Regalado, G.R. No.
167988, February 6, 2007).

Q: Is the doctrine in Tijam v. Sibonghanoy on estoppel by laches the general

rule?
ANS: No. The ruling in Tijam that a party is estopped from questioning the
jurisdiction applies only to exceptional circumstances. What is still controlling is that
jurisdiction over the subject matter of the action is a matter of law and may not be
conferred by consent or agreement of the parties (Calimlim v. Ramirez, G.R. No. L-
34362, November 19, 1982).

III. OVER THE ISSUES

Q: What is an issue?
ANS: An issue is a disputed point or question to which parties to an action have
narrowed down their several allegations and upon which they are desirous of
obtaining a decision (Black’s Law Dictionary, 5th ed., 745).

Q: What does jurisdiction over the issues mean?

ANS: This refers to the power of the court to try and decide the issues raised in the
pleadings of the parties (Reyes v. Diaz, supra).

Q: How is jurisdiction over the issues conferred and determined?

ANS: It is generally conferred and determined by the pleadings of the parties. The
pleadings present the issues to be tried and determine whether these are of fact or
of law (61A Am. Jur. 2d, Pleading, §1, 1981). Jurisdiction over the issues may also
be conferred by:
a. Stipulations of parties (Rule 18); or
b. By waiver or failure to object to the presentation of evidence on a matter not
raised in the pleadings (Sec. 5, Rule 10).

IV. OVER THE RES OR PROPERTY IN LITIGATION

Q: What is jurisdiction over the res?
ANS: Jurisdiction over the res refers to the court’s jurisdiction over the thing or the
property under litigation (Perkins v. Dizon, G.R. No. 46631, November 16, 1939).

Q: How is jurisdiction over the res acquired?

ANS: Jurisdiction over the res is acquired either by the seizure of the property
under legal process, whereby it is brought into actual custody of the law; or as a
result of the institution of legal proceedings, in which the power of the court is
recognized and made effective (Macahilig v. Heirs of Grace M. Magalit, G.R. No.
141423, November 15, 2000).

V. JURISDICTION OF COURTS
Q: Give an outline of the jurisdiction of courts in civil cases.
ANS: The following are the jurisdiction of courts in civil cases:

A.SUPREME COURT

CIVIL CASES SUPREME COURT

EXLUSIVE

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 ORIGINAL Petitions for certiorari, prohibition or mandamus against
the:
a. Court of Appeals;
b. Commission on Elections;
c. Commission on Audit;
d. Sandiganbayan.

With the RTC:

Cases affecting ambassadors, other public ministers
CONCURRENT and consuls.

NOTE: While With the CA:

the Rules a. Petitions for certiorari, prohibition or mandamus
provide for against the RTC;
concurrent b. Petitions for a Writ of Kalikasan.
jurisdiction
among the With the RTC & CA:
RTC, CA, and a. Petitions for habeas corpus;
SC, the same is b. Petitions for quo warranto;
still subject to c. Petitions for certiorari, prohibition or mandamus
the Doctrine of against inferior courts and other bodies.
Hierarchy of
Courts. With the RTC, CA & Sandiganbayan
a. Petitions for a Writ of Amparo;
b. Petitions for a Writ of Habeas Data.

By way of Appeal by Certiorari (Rule 45), against the:

a. Court of Appeals;
b. Sandiganbayan;
c. RTC on pure questions of law;
d. In cases involving the constitutionality or validity of a
APPELLATE law or treaty, international agreement or executive
agreement, law, presidential decree, proclamation,
order, instruction, ordinance or regulation, legality of
a tax, impost, assessment, toll or penalty, jurisdiction
of a lower court (Sec. 5, Art. VIII, Constitution);
e. CTA en banc.

B.COURT OF APPEALS

CIVIL CASES COURT OF APPEALS

EXCLUSIVE
Actions for annulment of the judgment of the RTC.
ORIGINAL

With the SC
a. Petitions for certiorari, prohibition or mandamus
CONCURRENT against the RTC;
b. Petitions for a Writ of Kalikasan;
c. Petitions for certiorari, prohibition or mandamus
against the NLRC (but according to the St. Martin

9
 Funeral Home v. Court of Appeals [G.R. No.
130866, Sept. 16, 1998] case, the petition should
be filed with the CA instead of the SC).

With the SC & RTC

a. Petitions for habeas corpus;
b. Petitions for quo warranto;
c. Petitions for certiorari, prohibition or mandamus
against inferior courts and other bodies;

With the RTC, SC, & Sandiganbayan

a. Petitions for a Writ of Amparo;
b. Petitions for a Writ of Habeas Data.

a. By way of ordinary appeal from the RTC and the

Family Courts;
b. By way of Petition for Review from the RTC
rendered in the exercise of its appellate jurisdiction;
c. By way of Petition for Review from the decisions,
resolutions, orders or awards of the:
APPELLATE i. Civil Service Commission;
ii. Office of the Ombudsman in administrative
disciplinary cases;
iii. Other bodies mentioned in Rule 43;
d. Exclusive appellate jurisdiction over decisions of the
MTCs in cadastral or land registration cases
pursuant to its delegated jurisdiction.

C.COURT OF TAX APPEALS (Please refer to Taxation Law)

D.SANDIGANBAYAN

CIVIL CASES SANDIGANBAYAN

Cases involving violations of:

a. E.O. No. 1 (Creating the PCGG);
b. E.O. No. 2 (Illegal Acquisition and Misappropriations
of Ferdinand Marcos, Imelda Marcos their close
relatives, subordinates, business associates,
EXCLUSIVE
dummies, agents or nominees);
ORIGINAL
c. E.O. No. 14 [Cases involving the ill-gotten wealth of
the immediately mentioned persons (Marcos and
dummies)]; and
d. E.O. No. 14-A (amendments to E.O. No. 14) (Sec.
2, R.A. No. 7975 as amended by R.A. No. 8294).
.

With the SC
CONCURRENT
a. Petitions for certiorari, prohibition, and mandamus
whether or not in aid of its appellate jurisdiction

10
 (A.M. NO. 07-7-12-SC);
b. Petitions for habeas corpus, injunction and other
ancillary writs in aid of its appellate jurisdiction,
including quo warranto arising in cases falling under
E.O. Nos. 1, 2, 14 and 14-A.

With the SC, CA & RTC

Petitions for the issuance of writ of amparo and writ of

habeas data.

E.REGIONAL TRIAL COURTS

F.MUNICIPAL TRIAL COURTS

MUNICIPAL
CIVIL CASES REGIONAL TRIAL COURTS
TRIAL COURTS

If the gross value,

claim, or demand
If the gross value, claim, or
does not exceed
demand exceeds PhP300,000
PhP300,000 (outside
(outside Metro Manila), or
Metro Manila, or
exceeds PhP400,000 (Metro
does not exceed
Manila):
PhP400,000 (Metro
Manila):

1. Actions involving personal property depending on the

value;
2. Admiralty and maritime cases depending on the
amount of demand or claim;
3. Probate proceedings (testate or intestate) depending
on the gross value of the estate;
EXCLUSIVE 4. Demand for money depending on the amount.
ORIGINAL
NOTE: Exclusive of Interest, Damages of whatever
kind, Attorney’s fees, Litigation Expenses, and Costs
(Code: IDALEC), the amount of which must be
specifically alleged but the filing fees thereon shall be
paid

NOTE: The exclusion of the term “damages of whatever

kind” applies to cases where the damages are merely
incidental to or a consequence of the main cause of
action. However, in cases where the claim for damages
is the main cause of action, or one of the causes of
action, the amount of such claim shall be considered in
determining the jurisdiction of the court.

If the assessed value or If the assessed

interest in the real property value or interest in

11
exceeds PhP20,000 (outside the real property
Metro Manila), or exceeds does not exceed
PhP50,000 (Metro Manila): PhP20,000 (outside
Metro Manila), or
does not exceed
PhP50,000 (Metro
Manila):

5. Actions involving title to or possession of real

property, or any interest therein depending on the
assessed value.
6. Actions the subject matter of 6. Inclusion and
which is incapable of exclusion of voters
pecuniary estimation; (B.P. Blg. 881,
7. Cases not within the Sec.138);
exclusive jurisdiction of any 7. Those covered by
court, tribunal, person or the Rules on
body exercising judicial or Summary
quasi-judicial functions Procedure
(general jurisdiction of RTC); a. Forcible Entry
8. Under Sec. 5.2 of the and Unlawful
Securities and Regulations Detainer (FEUD)
Code to hear and decide:
a. Devices or schemes NOTE: With
employed by or any acts of jurisdiction to
the board of directors, resolve issue of
business associates, its ownership to
officers or partnership, determine only
amounting to fraud and the issue of
misrepresentation; possession;
b. Intra-corporate
controversies; NOTE:
c. Controversies in the Irrespective of
elections or appointments the amount of
of directors, trustees, damages or
officers or managers of unpaid rentals
corporations, partnerships sought to be
or associations; recovered;
d. Petitions of corporations,
partnerships or NOTE: Where
associations to be attorney’s fees
declared in the state of are awarded,
suspension of payments. the same shall
not exceed
PhP20,000.
b. Other civil
cases, except
probate
proceedings,
where the total
amount of the
plaintiff’s claim
does not exceed

12
 PhP100,000 or
does not exceed
PhP200,000 in
Metro Manila,
exclusive of
interests and
costs (as
amended by
A.M. No. 02-11-
09-SC, effective
November 25,
2002).
SC may designate certain Petition for Habeas
branches of RTC to try Corpus or application
exclusively criminal cases, for bail in criminal
juvenile and domestic relations cases in the absence
cases, agrarian cases, urban of all RTC judges in
SPECIAL
land reform cases not falling the province or city.
w/in the jurisdiction of any
quasi-judicial body and other
special cases in the interest of
justice.
With the SC
Actions affecting ambassadors,
public ministers and consuls.

With the SC & CA

a. Petitions for Habeas Corpus;
b. Petitions for Quo Warranto;
c. Petitions for certiorari,
prohibition or mandamus
against inferior courts and
other bodies.
CONCURRENT --------
With the SC, CA,&
Sandiganbayan
a. Petitions for a Writ of
Amparo;
b. Petitions for a Writ of
Habeas Data.

With the Insurance

Commissioner
Claims not exceeding
PhP100,000.
All cases decided by the lower
courts in their respective
territorial jurisdiction except
APPELLATE ---------
decisions of lower courts in the
exercise of delegated
jurisdiction.
May be assigned by
DELEGATED ------
the SC to hear

13
 cadastral or land
registration cases
where there is no
controversy or
opposition over the
land or in case of
contested lands, the
value does not
exceed PhP100,000.

G.FAMILY COURTS

FAMILY COURTS
NOTE: In areas where there are no Family Courts, the
following cases shall be adjudicated by the RTC.
Family Courts now have exclusive original jurisdiction over:
a. Petitions for guardianship, custody of children, habeas
corpus involving children (but the SC and the CA have
not been deprived of their original jurisdiction);
b. Petitions for adoption of children and the revocation
thereof;
c. Complaints for annulment and declaration of nullity of
marriage, matter relating to marital status and property
relations of husband & wife or those living together under
different status or agreement, and petitions for
dissolution of conjugal partnership of gains;
d. Support and/or acknowledgment;
e. Summary judicial proceedings under the Family Code
f. Petition for declaration of status of children, voluntary or
involuntary commitment of children, matter relating to
parental authority and other cases cognizable under P.D.
ORIGINAL No. 603, E.O. No. 56 (series of 1996) and other related
laws.

NOTE: Under the Family Code, the family home is deemed

constituted, hence, no need for its constitution.

Special Provisional Remedies:

a. In cases of violence among the family members living in
the same domicile or household, the Family Court may
issue a restraining order against the accused or
defendant upon verified application by the complainant
or the victim for relief from abuse.
b. The court may order the temporary custody of children in
all civil actions for their custody, support pendente lite,
including deduction from the salary, and use of conjugal
home and other properties in all civil actions for support.

H.SHARI’AH COURTS JURISDICTION

SHARIAH COURTS
ORIGINAL 1. All cases involving custody, guardianship, legitimacy,

14
 paternity and filiation arising under the Code of
Muslim Personal Laws;
2. All cases involving disposition, distribution and
settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration or
appointment of administrators or executors
regardless of the nature or aggregate value of the
property;
3. Petitions for the declaration of absence and death for
the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the
Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in
which the parties are Muslims, if they have not
specified which law shall govern their relations;
5. All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
1. Petitions by Muslim for the constitution of a family
home, change of name and commitment of an insane
person to an asylum;
2. All other personal and legal actions not mentioned in
paragraph 1 (d) wherein the parties involved are
CONCURRENT Muslims except those for forcible entry and unlawful
detainer, which shall fall under the exclusive
jurisdiction of the Municipal Circuit Court;
3. All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims.
1. Offenses defined and punished under PD 1083;
2. Disputes relating to:
i. Marriage;
ii. Divorce;
iii. Betrothal or breach of contract to marry;
CASES THAT iv. Customary dower (mahr);
CAN BE FILED v. Disposition and distribution of property upon
divorce;
vi. Maintenance and support and consolatory gifts
(mut’a);
vii. Restitution of marital rights;
3. Disputes relative to communal properties.

VI. OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON

SUMMARY PROCEDURE AND BARANGAY CONCILIATION
Q: What cases are covered under the Rules on Small Claims, Summary
Procedure and Barangay Conciliation?
ANS:

Rule on Small Claims Summary Procedure Barangay

Cases Conciliation
Civil Cases Covered

15
Civil claims which are 1. All cases of forcible All disputes involving
exclusively for the entry and unlawful parties who actually
payment or detainer irrespective of reside in the same city
reimbursement of a sum the amount of or municipality may be
of money not exceeding damages or unpaid the subject of the
PhP100,000 exclusive of rentals sought to be proceedings for
interest and costs, recovered. Where amicable settlement in
either: attorney’s fees are the barangay.
a. Purely civil in nature awarded, the same
where the claim or shall not exceed
relief prayed for by the PhP20,000; and
plaintiff is solely for 2. All other civil cases,
payment or except probate
reimbursement of sum proceedings, where
of money, or the total amount of
b. The civil aspect of plaintiff’s claim does
criminal actions, either not exceed
filed before the PhP100,000 or does
institution of the not exceed
criminal action, or PhP200,000 in Metro
reserved upon the Manila, exclusive of
filing of the criminal interests and costs
action in court, (A.M. No. 02-11-09-
pursuant to Rule 111 SC, Nov. 25, 2005).
of the Revised Rules
of Criminal Procedure.

These claims or
demands may be:
1. For money owed
under any of the
following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of
Mortgage
2. For damages arising
from any of the
following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable
settlement or an
arbitration award
involving a money
claim covered by this
Rule pursuant to Sec.
417.
Criminal Cases Covered

16
 1. Violations of traffic When punishable by
laws, rules and imprisonment of not
regulations; more than 1 year or
2. Violations of the rental fine of not more than
law; PhP5,000 (Sec. 408,
3. Violations of municipal LGC).
or city ordinances;
4. Violations of B.P. Blg.
22 or the Bouncing
Checks Law (A.M. No.
00-11-01-SC, Apr. 15,
2003);
5. All other criminal
cases where the
penalty is
imprisonment not
exceeding 6 months
and/or a fine of
PhP1,000 irrespective
of other penalties or
civil liabilities arising
therefrom; and
6. Offenses involving
damage to property
through criminal
negligence where the
imposable fine is not
exceeding PhP10,000.

VII. TOTALITY RULE

Q: What is the Totality Rule?
ANS: 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 (Sec. 33, B.P. Blg.
129).

Q: When is the Totality Rule applicable?

ANS: The Totality Rule is applicable in the following cases:
a. In actions where the jurisdiction of the court is dependent on the amount
involved, the test of jurisdiction shall be the aggregate sum of all the money
demands, exclusive only of interest and costs, irrespective of whether or
not the separate claims are owned by or due to different parties. If any
demand is for damages in a civil action, the amount thereof must be
specifically alleged;
b. Cases where there are two or more plaintiffs having separate causes of
action against two or more defendants joined in a complaint.

NOTE: The Totality Rule applies under the condition that the causes of action
in favor of the two or more plaintiffs or against the two or more defendants
should arise out of the same transaction or series of transactions and there
should be a common question of law or fact (Flores v. Mallare-Philipps, G.R.
No. L-66620, September 24, 1986).

17
 CIVIL PROCEDURE
I. ACTIONS
Q: What is an action?
ANS: An action is the legal and formal demand of one’s right from another person
made and insisted in a court of justice (Bouvier‘s Law Dictionary, Vol. I, 8th ed.,
128).

A.MEANING OF ORDINARY CIVIL ACTIONS

Q: What is an ordinary civil action?
ANS: It is one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong (Sec. 3 [a], Rule 1).

B.MEANING OF SPECIAL CIVIL ACTIONS

Q: What is a special civil action?
ANS: Special civil actions refer to actions which, while governed by the rules for
ordinary civil actions, are subject to specific rules prescribed for under Rules 62 to
71 of the Rules of Court.

C.MEANING OF CRIMINAL ACTIONS

Q: Define criminal action.
ANS: It is an action by which the State prosecutes a person for an act or omission
punishable by law (Sec. 3 [b], Rule 1).

D.CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS

Q: What is a Special Proceeding?
ANS: A special proceeding is an application to establish the status or right of a
party or a particular fact or any remedy other than an ordinary suit in a court of
justice (Sec. 3 [c], Rule 1).

Q: How do we distinguish civil Actions from special Proceedings?

ANS: The differences between civil actions and special proceedings are the
following:
Ordinary Action Special Proceeding
Generally no definite
Generally adversarial in adverse party because it is
nature. There are definite directed against the whole
Nature
parties – plaintiff vs. world, as majority of
defendant. special proceedings are in
rem.
To protect or enforce a right
To establish a right, status
Purpose or prevent or redress a
or fact.
wrong.
It is governed by ordinary It is governed by special
Governing
rules supplemented by rules supplemented by
Rules
special rules. ordinary rules.
Court w/ It is heard by courts of It is heard by courts of
Jurisdiction general jurisdiction. limited jurisdiction.
How Initiated by a pleading and Initiated by means of a
initiated parties respond through an petition and parties

18
 answer after being served
with summons.
Parties are generally
Applicability allowed to file answer,
of pleadings counterclaim, cross-claim
and third-party complaint.
The period to appeals is
Appeal only 15 days and notice of
appeal suffices.
respond by means of an
opposition after notice and
publication are made.
Law on pleadings
generally not applicable.
The period to appeal is 30
days and aside from a
notice of appeal, a record
on appeal is required.

E.PERSONAL ACTIONS AND REAL ACTIONS

Q: What is the difference between a personal action and a real action?
ANS: A personal action is one founded on the privity of contract. In this action one
seeks to enforce a contract, recover personal property, or recover damages (De La
Cruz v. La Seminario v. Archidiocesis De Manila, et al, G.R. No. L-5402, January
28, 1911); a real action is an action affecting title to or possession of real property,
or interest therein (Sec 1, Rule 4).

Q: What is the importance of the distinction between personal actions and

real actions?
ANS: The distinction between a real action and a personal action is important for
the purpose of determining the venue of the actions.

F.LOCAL AND TRANSITORY ACTIONS

Q: What is a local action?
ANS: This is an action brought in the place where the subject property or a part
thereof is located in the absence of agreement to the contrary (e.g. Action for
recovery of real property). A real action is local.

Q: What is a transitory action?

ANS: A transitory action is one which depends on where the party resides and
regardless of where the cause of action arose subject to Sec. 4 of Rule 4 (e.g.
Action to recover a sum of money). A personal action is transitory.

Q: What are the different tests to determine the nature of the action?
ANS: The different tests are:
a. If the ultimate objective is to recover real property, then it is a real action (Tenorio
v. Paño, G. R. No. L-48117, November 27, 1986);
b. The allegations of facts and the relief prayed for may be determinative of the
nature of the action (Rone v. Claro, G.R. No. L-4472, May 8, 1952).

G.ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM

Q: Distinguish between actions in rem, in personam and quasi in rem.
ANS: The differences are the following:

Action in Personam Action in Rem Action Quasi In Rem

Directed against Directed against the Directed against
particular persons. The thing itself. particular persons.
defendant is sought to
be held liable.

19
 Jurisdiction over the Jurisdiction over the Jurisdiction over the
person of the defendant person of the defendant person of the
is required. is not required. defendant is not
required as long as
jurisdiction over the res
is acquired.
An action to impose a A proceeding to A proceeding to
responsibility or liability determine the state or subject the interest of
upon a person directly. condition of a thing. a named defendant
over a particular
property to an
obligation or lien
burdening it.
Judgment is binding only Judgment is binding on Judgment binding
upon parties impleaded the whole world. upon particular
or their successors in persons.
interest.
Ex. Action for specific Ex. Probate proceeding; Ex. Action for partition;
performance; action for cadastral proceeding. action to foreclose real
breach of contract. estate mortgage.

Q: What is the importance of knowing the distinctions between actions in

personam, in rem and quasi in rem?
ANS: The distinction is important to determine whether or not jurisdiction over the
person of the defendant is required and consequently to determine the type of
summons to be employed.

H.INDEPENDENT CIVIL ACTIONS

Q: What are independent civil actions?
ANS: Independent civil actions are those provided in Articles 32, 33, 34 and 2176
of the New Civil Code. They may proceed independently of the criminal action and
shall require only a preponderance of evidence (Sec. 3, Rule 111).

II. CAUSE OF ACTION

A.MEANING OF CAUSE OF ACTION
Q: What is a cause of action?
ANS: It is the act or omission by which a party violates the rights of another (Sec. 2,
Rule 2).

B.RIGHT OF ACTION VERSUS CAUSE OF ACTION

Q: Define right of action and give its elements.
ANS: Right of action is the right to commence and prosecute and action to obtain
the relief sought. Its elements are:
a. Existence of a cause of action;
b. Performance of all conditions precedent to the bringing of the action;
c. Right to bring and maintain the action must be in the person instituting it (Albano,
p. 81).

Q: Distinguish right of action from cause of action.

ANS: The differences are the following:

20
 a. A cause of action refers to the delict or wrong committed by the
defendants; whereas right of action refers to the right of the plaintiff to
institute the action;
b. A cause of action is determined by the pleadings; whereas a right of action
is determined by substantive law;
c. A right of action may be taken away by the running of the statute of
limitations, by estoppel or other circumstances which do not affect the
cause of action (Marquez v. Varela, G.R. No. L-4845, December 24, 1952;
Multi-Realty Dev’t Corp. v. Makati Tuscany Condominium Corp., G.R. No.
146726, June 16, 2006).

C.FAILURE TO STATE A CAUSE OF ACTION

Q: Explain the concept and effect of failure to state a cause of action.
ANS: If the elements of a cause of action are not extant, the complaint becomes
vulnerable to a motion to dismiss on the ground of failure to state a cause of action.
A defendant who moves to dismiss the complaint on the ground of failure to state a
cause of action hypothetically admits all the averments thereof. The hypothetical
admission extends to the relevant and material facts well pleaded in the complaint
and inferences fairly deducible therefrom (Ceroferr Realty Corp. v. Court of
Appeals, et al., G.R. No. 139539, February 5, 2002).

Q: Does a dismissal based on a failure to state a cause of action bar the

subsequent re-filing of the complaint?
ANS: No. Dismissal of a complaint for failure to state a cause of action is one
without prejudice. It does not bar the subsequent re-filing of the complaint (Sec. 5,
Rule 16).

Q: State the distinctions between “failure to state a cause of action” and “lack
of cause of action”.
ANS: The distinctions are the following:
a. There is failure to state a cause of action where the complaint does not
allege a sufficient cause of action; there is a lack of cause of action where
the evidence does not sustain the cause of action alleged;
b. The ground of failure to state a cause of action is raised in a motion to
dismiss under Rule 16 before a responsive pleading is filed and can be
determined only from the allegations in the initiatory pleading and not from
evidentiary or other matters aliunde; The ground of lack of cause of action
is raised in a demurrer to evidence under Rule 33 after the plaintiff has
rested his case and can be resolved only on the basis of the evidence he
has presented in support of his claim;
c. The first does not concern itself with the truth and falsity of the allegations
while the second arises precisely because the judge has determined the
truth and falsity of the allegations and has found the evidence wanting
(Domondon v. Lopez, A.M. No. RTJ-02-1696, June 20, 2002).

D.TEST OF SUFFICIENCY OF A CAUSE OF ACTION

Q: What is the test of sufficiency of a complaint?
ANS: The test of sufficiency of the facts found in a complaint as constituting a
cause of action is whether or not admitting the facts alleged the court can render a
valid judgment upon the same in accordance with the prayer thereof (Ceroferr
Realty Corp. v. Court of Appeals, et al., supra).

E.SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECT

21
 Q: What is meant by splitting of causes of action?
ANS: Splitting a single cause of action is the act of instituting two or more suits for
the same cause of action (Sec. 4, Rule 2).

Q: What is the effect of splitting a single cause of action?

ANS: If two or more suits are instituted for a single cause of action, the filing of one
(litis pendentia) or a judgment upon the merits (res judicata) in one shall be a
ground for the dismissal of the others (Sec. 4, Rule 2). As to which action is to be
dismissed would lie within the discretion of the court and the prevailing
circumstances of the case.

Q: There was foreclosure of mortgage due to the debtor’s failure to pay an

obligation. The debtor filed a complaint for declaration of nullity of the
foreclosure proceeding and a separate complaint for damages arising out of
the foreclosure proceedings. Is the rule against splitting a cause of action
violated?
ANS: Yes. There was filing of multiple cases based on the same cause of action
although with different prayers. Two remedies that arose from one wrongful act
cannot be pursued in two different cases (Albano, p. 92).

F.JOINDER AND MISJOINDER OF CAUSES OF ACTIONS

Q: What is joinder of causes of action?
ANS: A joinder of causes of action is the uniting of two or more demands or right of
action in a complaint. The question of the joinder of causes of action involves in
particular cases a preliminary inquiry as to whether two or more causes of action
are alleged (Decena v. Piquero, G.R. No. 155736, March 31, 2005).

Q: State the tests involved in a joinder of causes of action.

ANS: In declaring whether more than one cause of action is alleged, the main
thrust is whether more than one primary right or subject of controversy is
present. Other tests are whether recovery on one ground would bar recovery on
the other, whether the same evidence would support the other different counts and
whether separate actions could be maintained for separate relief; or whether more
than one distinct primary right or subject of controversy is alleged for enforcement
or adjudication (Decena v. Piquero, supra).

Q: Are there any limitations to the joinder of causes of actions?

ANS: The joinder of causes of action allowed subject to the following conditions:
a. The party joining the causes of action shall comply with the rules on joinder
of parties;
b. The joinder shall not include special civil actions or actions governed by
special rules;
c. Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional
Trial Court provided one of the causes of action falls within the jurisdiction
of said court and the venue lies therein; and
d. Where the claims in all the causes action are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction (Sec.
5, Rule 2).

Q: How may causes of action be joined?

ANS: They may be joined cumulatively or alternatively (Sec. 6, Rule 2).

22
 Q: What is a cumulative joinder?
ANS: Cumulative joinder exists when one is seeking relief for all of his causes of
action.

Q: What is an alternative joinder?

ANS: Alternative joinder exists when the cause of action is against either one or the
other defendant. One is not seeking relief from both but from either one.

Q: When is there a misjoinder of causes of action?

ANS: There is a misjoinder of causes of action when two or more causes of action
were joined in one complaint when they should not be so joined. When there is a
misjoinder of causes of action, the erroneously joined cause of action may be
severed and proceeded with separately upon motion by a party or upon the court’s
initiative (Sec. 6, Rule 2). It is not a ground for the dismissal of the action.

III. PARTIES TO CIVIL ACTIONS

A.REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES;
REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT
PARTIES; ALTERNATIVE DEFENDANTS
Q: Define real party in interest.
ANS: A real party in interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by the law or rules, every action must be prosecuted or
defended in the name of the real party in interest (Sec. 2, Rule 3).

Q: Who is an indispensable party?

ANS: An indispensable party is a real party-in-interest without whom no final
determination can be had of an action (Sec. 7, Rule 3). A joinder of an
indispensable party is mandatory. The presence of all indispensable parties is a
condition sine qua non for the exercise of judicial power.

Q: What is the nature of the defect of the pleading if an indispensable party is

not impleaded?
ANS: Where the indispensable party is not impleaded or is not before the court, an
outright dismissal is not the remedy. Rather, the court shall order such party to be
impleaded (Cortez v. Avila, G.R. No. L-9782, April 26, 1957).

Q: A leased a real property from owner B. When B originally bought the

property from C, there was a restriction in the contract that it would be used
exclusively for residential purposes. When it was leased, lessee A
constructed a commercial building, hence, C filed a suit for injunction. A was
not impleaded as a party. Is A, a lessee, a real party in interest?
ANS: Yes. As lessee and in actual possession, C sought to enjoin the construction
of the building by A. Clearly, it is his act which is at issue hence, his interest in said
issue cannot be a mere incidental interest, hence, he is adversely affected (Sec. 7,
Rule 3).

Q: Christina and Owen filed a petition for the adoption of Zola, a minor child
of Meredith and Derek. After the filing of the petition, Zola killed her playmate
Sophia, hence, a suit for damages was filed by the parents of Sophia against
Christina and Owen, and Meredith and Derek. Are Meredith and Derek
indispensable parties?

23
 ANS: Yes. The incident occurred when parental authority was still lodged in
Meredith and Derek, the natural parents of the minor Zola. It would thus follow that
the natural parents who had then actual custody of the minor Zola, are the
indispensable parties to the suit for damages (Tamargo v. Court of Appeals, G.R.
No. 85044, June 3, 1992).

Q: Who can be representatives of parties?

ANS: A representative may be a trustee of an express trust, a guardian, an
executor or administrator or a party authorized by law or the Rules of Court (Sec. 3,
Rule 3).

Q: Are representatives allowed as parties?

ANS: Yes. Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be deemed to be the real party in interest.
An agent acting in his own name and for the benefit of an undisclosed principal may
sue or be sued without joining the principal except when the contract involves
things belonging to the principal (Sec. 3, Rule 3).

Q: Who are necessary parties?

ANS: A necessary party is one who is not indispensable but who ought to be joined
as a party if complete relief is to be accorded or for a complete determination or
settlement of the claim subject of the action (Sec. 8, Rule 3).

Q: What is the effect of the non-inclusion of a necessary party?

ANS: The non-inclusion of a necessary party does not prevent the court from
proceeding with the action and the judgment therein shall be without prejudice to
the rights of such necessary party not impleaded. The failure to comply with the
order of the court to include a necessary party without justifiable cause shall be
deemed a waiver of the claim against such party (Sec. 9, Rule 3).

Q: Who are indigent parties?

ANS: An indigent party is one who has no money or property sufficient and
available for food, shelter and basic necessities for him and his family. A party may
be authorized to litigate his action, claim or defense as an indigent. Such party will
be exempted from the payment of docket fees and of transcript of stenographic
notes. However, the amount of the docket and other lawful fees shall be a lien on
the judgment rendered in the case favorable to the indigent; it will not be a lien
when the court provides otherwise (Sec. 21, Rule 3).

Q: Define alternative defendants.

ANS: Where the plaintiff is uncertain against who of several persons he is entitled
to relief, he may join any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right to relief against the other
(Sec. 13, Rule 3).

Q: Allan was riding a passenger jeepney driven by Ben that collided with a
car driven by Cesar, causing Allan injury. Not knowing who was at fault, what
is the best that Allan can do? (2011 Bar)
ANS: Sue both Ben and Cesar as alternative defendants (Sec. 13, Rule 3).

B.COMPULSORY AND PERMISSIVE JOINDER OF PARTIES

Q: When is permissive joinder of parties allowed?

24
 ANS: Parties can be joined in a single complaint or may themselves maintain or be
sued in separate suits. Normally, joinder of parties is permissive provided that the
following requisites concur:
a. The right to relief arises from the same transaction or series of transactions;
b. There is a question or law or fact common to all the plaintiffs or defendants; and
c. The joinder is not proscribed by the provisions of the rules on jurisdiction and
venue (Sec. 6, Rule 3).

Q: When is joinder of parties compulsory?

ANS: A joinder of a party becomes compulsory when the one involved is an
indispensable party. Where an indispensable party is not a party to an action, the
court shall order that he be joined as a party to the action.

Q: True or false: The failure to join indispensable parties automatically

dismisses the case.
ANS: False. It is only when the order of the court to implead an indispensable party
goes unheeded may the case be dismissed (Albano, p.115).

C.MISJOINDER AND NON-JOINDER OF PARTIES

Q: When is there a misjoinder of parties?
ANS: A party is misjoined when he is made a party to the action although he should
not be impleaded.

Q: Define non-joinder of parties.

ANS: A party is not joined when he is supposed to be joined but is not impleaded in
the action.

Q: Is the misjoinder or non-joinder of parties a ground for dismissal?

ANS: The misjoinder or non-joinder of a party is not per se a ground for the
dismissal of the action (Sec. 11, Rule 3). However when the court orders the joinder
or dropping of a party and such is not obeyed, the grounds for dismissal will be the
failure to comply with the court’s order (Sec. 3, Rule 17).

Q: X, a co-owner of a certain parcel of land occupied by A and B, filed an

ejectment case against the latter. A and B moved to dismiss the case on the
ground that Y, a co-owner of the property in question, was not impleaded.
Rule on the contention.
ANS: The contention of A and B is not correct. Y, as a co-owner of the property in
question, is not an indispensable party (Art. 487, NCC). Y is only a necessary party.
Under the rules, neither misjoinder nor non-joinder of parties is a ground for
dismissal of an action. This is because parties may be dropped or added by order
of the court on motion of any party or on its own initiative at any stage of the action.
Any claim against a misjoined party may be severed and proceeded with
separately. If a party is not joined, the failure to comply with the order of the court
would be a ground for dismissal of the action (Albano, p.134).

D.CLASS SUIT
Q: What is a class suit?
ANS: A class suit is an action where one or more may sue for the benefit of all,
implying that if the parties are numerous and it is impractical to bring them all to
court, one or more may sue for their benefit (Sec. 12, Rule 3).

Q: Give the requisites of a class suit.

25
 ANS: A class suit has the following requisites:
a. The subject matter of the controversy is one of common or general interest
to many persons;
b. The persons are so numerous that it is impractical to join them all as
parties;
c. The parties bringing the class suit are sufficient in number and
representative of the class as to fully protect the interests of all concerned;
d. The representatives sue or defend for the benefit of all (Sec. 12, Rule 3).

E.SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY

Q: Discuss the rules regarding suits against entities without juridical
personality.
ANS: Persons associated in an entity without juridical personality may be sued
under the name by which they are generally or commonly known, but they cannot
sue under such name. In the answer of such defendant, the names and addresses
of the persons composing said entity must all be revealed (Sec. 15, Rule 3).

F.EFFECT OF DEATH OF PARTY LITIGANT

Q: What is the effect of the death of a party litigant to the complaint?
ANS: Where the claim is not extinguished by the death of the litigant, it shall be the
duty of his counsel to inform the court of such fact within 30 days from such death
and to give the name and address of the legal representative.

NOTE: In such case, the heirs may be substituted for the deceased or if no legal
representative is named or if the one so named shall fail to appear within the
specified period, the court will order the opposing party to procure the appointment
of an executor or administrator for the estate of the deceased. In case of minor
heirs, the court may appoint a guardian ad litem for them (Sec. 16, Rule 3).

IV. VENUE
A.VENUE VERSUS JURISDICTION
Q: Distinguish venue from jurisdiction.
ANS: The differences between venue and jurisdiction are the following:
a. Venue is the place where the cause is instituted, heard or tried; jurisdiction
is the power of the court to hear and decide a case;
b. Venue is procedural while jurisdiction is substantive;
c. Venue may be waived; jurisdiction over the subject matter is conferred by
law and cannot be waived;
d. Venue may be changed by the written agreement of the parties; jurisdiction
cannot be the subject of the agreement of the parties;
e. Venue is not a ground for a motu proprio dismissal, except in summary
procedure; lack of jurisdiction of the subject matter is a ground for a motu
proprio dismissal.

B.VENUE OF REAL ACTIONS

Q: What is the venue of real actions?
ANS: Where the action is real, the venue is local; hence, the venue is the place
where the real property involved, or any portion thereof, is situated (Sec. 1, Rule 4).

C.VENUE OF PERSONAL ACTIONS

Q: What is the venue of personal actions?

26
 ANS: If the action is personal, the venue is transitory; hence, it is the residence of
the plaintiff or defendant at the option of the plaintiff (Sec. 2, Rule, 4).

D.VENUE OF ACTIONS AGAINST NON-RESIDENTS

Q: Discuss the rules on venue of actions against non-residents.
ANS: If the action is personal and the defendant is a non-resident, the venue is the
residence of the plaintiff or where the non-resident defendant may be found, at the
election of the plaintiff (Sec. 2, Rule 4).

NOTE: When the action is real, and the defendant is a non-resident not found in the
Philippines and the action affects the personal status of the plaintiff or any property
of the defendant in the Philippines, the venue shall be the residence of the plaintiff
or where the property or any portion thereof is situated (Sec. 3, Rule 4).

E.WHEN THE RULES ON VENUE DO NOT APPLY

Q: When are the rules on venue not applicable?
ANS: The rules on venue shall not apply where:
a. The rules or substantive law provides otherwise (e.g. an action for
damages arising from libel; the power of the Supreme Court to order a
change of venue to avoid miscarriage of justice under Sec. 5 [4], Article VIII
of the 1987 Constitution);
b. The parties have validly agreed in writing before the filing of the action on
the exclusive venue thereof (Sec. 4, Rule 4).

F.EFFECTS OF STIPULATIONS ON VENUE

Q: Can the parties agree upon a specific venue?
ANS: Yes. The parties may validly agree upon a specific venue which could be in a
place where neither of them resides, provided the following requisites are met:
a. The agreement must be in writing;
b. It must be made before the filing of the action; and
c. There must be exclusivity as to the selection of the venue (Sec. 4, Rule 4).

Q: What is the effect of a stipulation on venue agreed upon by the parties?

ANS: The mere stipulation on the venue of an action is not enough to preclude
parties from bringing a case in other venue. In the absence of restrictive words, the
stipulation should be deemed as merely an agreement on an additional forum, not
as limiting venue. While they are considered valid and enforceable, venue
stipulations in a contract do not, as a rule, supersede the general rule set forth in
Rule 4 in the absence of qualifying or restrictive words. If the language is restrictive,
the suit may be filed only in the place agreed upon by the parties (Spouses Lantin v.
Lantion, G.R. No. 160053, August 28, 2006).

V. PLEADINGS
Q: What are pleadings?
ANS: Pleadings are the written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6).

A.KINDS OF PLEADINGS

Complaint
Q: What is a complaint?
ANS: A complaint is an initiatory pleading alleging the plaintiff’s cause or causes of
action. The names and residences of the plaintiff and defendant must be stated in

27
the complaint (Sec. 3, Rule 6). It should contain a concise statement of the ultimate
facts constituting the plaintiff’s cause of action. The jurisdiction of the court and the
nature of the action are determined by the averments in the complaint.

Answer
Q: What is an answer?
ANS: An answer is a responsive pleading in which a defending party sets forth his
defenses (Sec. 4, Rule 6). It only applies to civil cases. The equivalent of an answer
in a criminal case is the plea. It may be an answer to the complaint, counterclaim,
cross-claim, third-party complaint or complaint-in-intervention.

Q: What types of defenses may be set up by the defendant?

ANS: The defendant may set up two kinds of defenses: negative and affirmative
defenses (Sec. 5, Rule 6).

Negative Defenses
Q: What is a negative defense?
ANS: A negative defense is the specific denial of the material fact or facts alleged
in the pleading of the claimant essential to his cause or causes of action (Albano, p.
185).

Q: What is an absolute denial?

ANS: There is an absolute denial when the defendant specifies each material
allegation of fact the truth of which he does not admit and whenever practicable
sets forth the substance of the matters upon which he relies to support such denial
(Sec. 10, Rule 8).

Q: What is a partial denial?

ANS: There is partial denial when the defendant does not make a total denial of the
material allegations in a specific paragraph, denying only a part of the averment. In
doing so, he specifies that part the truth of which he admits and denies only the
remainder (Sec. 10, Rule 8).

Q: What is a denial by disavowal of knowledge?

ANS: There is a denial by disavowal of knowledge when the defendant alleges
having no knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint (Sec. 10, Rule 8). Such denial must be
made in good faith.

NOTE: Where the matter denied by a disavowal of knowledge is plainly and

necessarily within the defendant’s knowledge that his averment of ignorance must
be palpably untrue, such claim shall not be considered as a specific denial (Warner
Barnes & Co., Ltd. v. Reyes, G.R. No. L-9531, May 14, 1958).

Q: What is a general denial?

ANS: If the denial does not fall within the scope of the abovementioned kinds of a
specific denial, it shall be considered a general denial which is considered as an
admission of the averment not specifically denied.

Negative Pregnant
Q: What is a negative pregnant?

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ANS: It is said to be a denial pregnant with an admission of the substantial facts in
the pleading responded to. It is not a specific denial and is actually an admission.
This arises when the pleader merely repeats the allegations in a negative form.

Q: Plaintiff Y’s complaint for a sum of money alleges the following: “On
December 8, 2009, defendant borrowed PhP100,000.00 from plaintiff in Taguig
promising to pay on December 8, 2011.” Defendant X, in his answer, stated
the following: “Defendant specifically denies that on December 8, 2009, he
borrowed PhP100,000.00 from plaintiff in Taguig and that he promised to pay
on December 8, 2011.” Is this a proper denial?
ANS: No. The denial does not specify the fact or facts which the pleader intends to
deny. Although the answer avers that it denies the allegations, the failure to so
specify the fact denied implies an admission. It is in effect a denial filled or pregnant
with admissions (Riano, Fundamentals of Civil Procedure, 2005 ed., p.354).

Affirmative Defenses
Q: What is an affirmative defense?
ANS: Affirmative defenses are in the nature of confession and avoidance. They
import that, admitting the allegations of the complaint to be true, yet the matters set
out in the answer deny or take away the plaintiff’s right of action (La Corporacion
De Padres Agustinos Recoletos v. Crisostomo, G.R. No. L-10031, December 6,
1915).

NOTE: Affirmative defenses include fraud, statute of limitations, release, payment,

illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and
any other matter by way of confession and avoidance (Sec. 5 [b], Rule 6).

Counterclaims
Q: What are counterclaims?
ANS: Counterclaims refer to claims which a defending party may have against an
opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against
the plaintiff.

Compulsory Counterclaim
Q: What is a compulsory counterclaim?
ANS: A compulsory counterclaim is one which has the following elements:
a. It is cognizable by the regular courts of justice;
b. It arises out of, or is necessarily connected with the transaction or
occurrence which is the subject matter of the opposing party’s claim;
c. It does not require for its adjudication the presence of third parties over
whom the court cannot acquire jurisdiction;
d. The court has jurisdiction to entertain it both as to amount and nature,
except that in an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and
e. The defending party has a counterclaim at the time he files his answer
(Sec. 7, Rule 6).

Q: Why is the filing of a compulsory counterclaim important?

ANS: The failure of the defendant to set up a compulsory counterclaim shall bar its
institution, subject to the following exceptions:
a. If the counterclaim matured or was acquired after the defendant had served his
answer. In such case, it may be pleaded by filing a supplemental answer or
pleading before judgment, with the permission of the court; and

29
b. When a pleader fails to set-up a counterclaim through oversight, inadvertence,
excusable negligence, or when justice requires, he may, by leave of court, set-up
the counterclaim by amendment of the pleadings before judgment.

Q: The USSR submitted a plan for the construction of a residential building

which was authorized by the Forbes Park Association. But Financial Building
Corp. submitted to the Makati City government a different plan. Thereafter,
the Association refused to issue a permit to enter Forbes Park. Financial
Building filed an injunction case to prohibit the Association from preventing
entry into the subdivision which was dismissed. Forbes Park Association
then filed a suit for damages against it. Will the action for damages prosper?
ANS: No. The action for damages is barred for failure to set it up as a compulsory
counterclaim in the injunction case. A compulsory counterclaim cannot be the
subject of a separate action but it should instead be asserted in the same suit
involving the same transaction or occurrence, which gave rise to it. Otherwise, it is
deemed waived. Since Forbes Park filed a motion to dismiss, its existing
compulsory counterclaim at that time is now barred (Financial Building Corp. v.
Forbes Park Association Inc., G.R. No. 133119, August 17, 2000; Albano, p. 191).

Permissive Counterclaim
Q: What is a permissive counterclaim?
ANS: A counterclaim is permissive if any of the elements of a compulsory
counterclaim is absent.

Q: What are the differences between permissive counterclaim and

compulsory counterclaim?
ANS: The differences between permissive counterclaim and compulsory
counterclaim are the following:
a. A permissive counterclaim may be set up as an independent action and will not
be barred if not contained in the answer to the complaint; a compulsory
counterclaim shall be contained in the answer because a compulsory
counterclaim not set up shall be barred;
b. A permissive counterclaim is considered an initiatory pleading; a compulsory
counterclaim is not an initiatory pleading;
c. A permissive counterclaim should be accompanied by a certification against
forum shopping, and whenever required by law, also a certificate to file action
issued by the Lupong Tagapamayapa; a compulsory counterclaim does not
require such certificate;
d. A permissive counterclaim must be answered by the party against whom it is
interposed. Otherwise, he may be declared in default as to the counterclaim. A
compulsory counterclaim that merely reiterates special defenses are deemed
controverted even without a reply. In such a case, failure to answer may not be a
cause for a declaration of default.

Q: Defendant Dante said in his answer: “Plaintiff Perla claims that defendant
Dante owes her PhP4,000 on the mobile phone that she sold him; 2. But Perla
owes Dante PhP6,000 for the dent on his car that she borrowed.” How should
the court treat the second statement? (2011 Bar)
ANS: A permissive counterclaim.

EFFECT ON COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED

Q: Discuss the effect on the counterclaim when the complaint is dismissed.

30
ANS: A party who desires to plead a compulsory counterclaim should not file a
motion to dismiss. If he files a motion to dismiss and the complaint is dismissed
there will be no chance to invoke the counterclaim.

However, the dismissal of the complaint where the defendant has previously filed
an answer and a counterclaim, whether compulsory or permissive, shall allow the
latter to prosecute the counterclaim whether in the same or a separate action
notwithstanding such dismissal:
a. If no motion to dismiss has been filed, any of the grounds for dismissal provided
for in this Rule may be pleaded as an affirmative defense in the answer and, in
the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed. If during the hearing on the affirmative
defenses, the court decides to dismiss the complaint, the counterclaim pleaded in
the answer, compulsory or permissive, is not dismissed (Sec. 6, Rule 16).
b. Where the plaintiff himself files a motion to dismiss his own complaint after the
defendant has filed an answer with counterclaim, the dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within 15 days from notice of the motion, he manifests his
preference to have his counterclaim resolved in the same action (Sec. 2, Rule
17).
c. Where the complaint is dismissed due to the plaintiff’s fault and at a time when a
counterclaim has already been set up. The dismissal is also without prejudice to
the right of the defendant to prosecute his counterclaim in the same or separate
action (Sec. 3, Rule 17).

Cross-Claims
Q: What is a cross-claim?
ANS: A cross claim refers to any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter of either the original
action or of a counterclaim therein. A cross-claim may include a claim 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 (Sec. 8, Rule 6). A cross-
claim may be filed against the original cross-claimant (Sec. 9, Rule 6).

Third (Fourth, Etc.) Party Complaints

Q: What is a third (fourth, etc.) party complaint?
ANS: It refers to a complaint independent of the plaintiff’s complaint where the
defendant may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent’s
claim (Sec. 11, Rule 6).

Complaint-in-Intervention
Q: What is a complaint-in-intervention?
ANS: A complaint-in-intervention refers to a pleading filed by a third person who is
not a party to the action but having an interest in the matter of the litigation and
asserting a claim against either or all of the original parties to the action. Such party
may, with leave of court, become a party to the pending action (Sec. 1, Rule 19).

Reply
Q: What is a reply?
ANS: A reply is the responsive pleading to an answer. Its function is to deny or
allege facts in denial or avoidance of new matters alleged by way of defense in the
answer, thereby joining or making issue as to such new matters (Sec. 10, Rule 6).

31
 Q: Is a reply mandatory?
ANS: The general rule is that the filing of a reply is not mandatory and will not have
an adverse effect since all the new matters alleged in the answer will be deemed
controverted or denied (Sec. 11).

Q: Are there any exceptions to the general rule?

ANS: Yes. The exceptions are:
a. A reply may be necessary when the answer is based upon an actionable
document. The plaintiff has to file a specific denial under oath if he wants to
avoid the admission of such matter; and
b. To set up affirmative defenses on the counterclaims.

B.PLEADINGS ALLOWED IN SMALL CLAIMS CASES AND CASES COVERED BY

THE RULES ON SUMMARY PROCEDURE
Q: What kinds of pleadings are allowed in Small Claims cases?
ANS: The pleadings that are allowed in Small Claims cases are the Statement of
Claim, the Response and the Counter-claim in the response (A.M. No. 08-8-7-SC).

Q: What kinds of pleadings are allowed in cases governed by the Rules on

Summary Procedure?
ANS: The only pleadings allowed under this Rule, which must all be verified, are
the complaint, the compulsory counterclaims pleaded in the answer, the cross
claims pleaded in the answer and the answers thereto (Sec. 3 [a], Revised Rules on
Summary Procedure).

C.PARTS OF A PLEADING

Caption
Q: What is a caption?
ANS: The caption contains the name of the court, the title of the action which
indicates the names of the parties, and the docket number, if assigned (Sec.1, Rule
7).

Signature and Address

Q: What is the importance of the signature and the address?
ANS: Every pleading must be signed by the party or counsel representing him,
stating in either case his address which must not be a post office box. In the
absence of a proper notice to the court of a change of address, service upon the
parties must be made at the last address of their counsel of record. An unsigned
pleading shall produce no effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it was due to mere inadvertence and not intended
for delay (Sec. 3, Rule 7).

Verification And Certification Against Forum Shopping

Q: When is verification required?
ANS: As a general rule, a pleading need not be under oath (verified) unless it is
required by a law or by a rule (Sec. 4, Rule 7). A pleading required to be verified but
lacks the proper verification shall be treated as an unsigned pleading and as if not
filed in court. Hence, it produces no legal effect.

The court may, however, order the correction of the pleading, if the attending
circumstances are such that a strict compliance may be dispensed with in the

32
interest of justice since verification is only a formal and not a jurisdictional
requirement.

A pleading is verified by an affidavit which declares that the affiant has read the
pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.

Q: What is a certification against forum shopping?

ANS: The certification of non-forum shopping is a mandatory requirement in filing a
complaint and is executed by the plaintiff or the principal party and not by his
counsel. The plaintiff or the principal party shall certify under oath:
a. That the party has not commenced or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and that to the best of his knowledge
no such other action or claim is pending;
b. That if there is such other pending action or claim, a complete statement of the
present status thereof; and
c. That if he should therefore learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within 5 days therefrom to the court
where his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule
7).

Q: What is forum shopping?

ANS: Forum shopping consists of filing multiple suits in different courts, either
simultaneously or successively, involving the same parties, to ask the courts to rule
on the same or related causes and/or to grant the same or substantially the same
relief (Alaban v. Court of Appeals, G.R. No. 156021, September 23, 2005).

Q: How do we determine the presence of forum shopping?

ANS: In determining the presence of forum shopping, the test should be whether in
the two or more cases pending there is an identity of (1) parties; (2) rights or causes
of action; and (3) reliefs sought. Also, forum shopping exists when the elements of
litis pendentia are present or where a final judgment in one case will amount to res
judicata in another (Lim v. Vianzon, G.R. No. 137187, August 3, 2006).

Q: What is the effect of non-compliance with the rule on forum shopping?

ANS: The failure to comply with the required certification is not curable by mere
amendment and shall be a cause for dismissal of the action without prejudice,
unless otherwise provided (Sec. 5, Rule 7).

Q: Can the dismissal be done by the court motu proprio?

ANS: No. The rule requires that the dismissal be upon motion and after hearing
(Sec. 5, Rule 7).

Q: What is the effect of the signature of the counsel in a pleading?

ANS: The counsel’s signature certifies that he has read the pleading; that to the
best of his knowledge, information and belief there is a good ground to support it;
and that it is not interposed for delay (Sec. 3, Rule 7).

Requirements of a Corporation Executing the Verification/ Certification of

Non-Forum Shopping
Q: What are the requirements of a corporation executing the
verification/certification of non-forum shopping?

33
 ANS: Where the plaintiff or a principal party is a juridical entity like a corporation it
may be executed by a properly authorized person. This person may be the lawyer
of the corporation so long as he is duly authorized by the corporation and has
personal knowledge of the facts required to be disclosed therein (National Steel
Corporation v. Court of Appeals, G.R. No. 134468, August 29, 2002).

D.ALLEGATIONS IN A PLEADING

Manner of Making Allegations

Q: Discuss the manner of making allegations.
ANS: Every pleading shall contain in a methodical and logical form, a plain, concise
and direct statement of the ultimate facts on which the party pleading relies for his
claim or defense, omitting statements of evidentiary facts (Sec. 1, Rule 8).

Condition Precedent
Q: How are conditions precedent pleaded?
ANS: Where there are matters that must be complied with before a cause of action
will arise, a general averment of the performance or occurrence of all such
conditions precedent shall suffice (Sec. 3, Rule 8). But there must still be an
allegation that the specific condition precedent has been complied with, otherwise,
it will be dismissed for lack of cause of action.

Fraud, Mistake, Malice, Intent, Knowledge and Other Conditions of the Mind,
Judgments, Official Documents or Acts
Q: Discuss the manner of pleading fraud, mistake, intent, knowledge and
other conditions of the mind.
ANS: In pleading fraud or mistake, the circumstances constituting such fraud or
mistake must be stated with particularity. In pleading malice, intent, knowledge or
other conditions of the mind of a person, the same may be averred generally given
the difficulty in stating the particulars constituting these matters (Sec. 5, Rule 8).

Q: How is a judgment pleaded?

ANS: In pleading a judgment or decision of a domestic or foreign court, judicial or
quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or
decision without the need of alleging matters showing the jurisdiction to render such
decision (Sec., 6, Rule 8).

Q: How is an official document or act pleaded?

ANS: It is sufficient to aver that the document was issued or the act was done in
compliance with the law (Sec. 9, Rule 8).

Pleading an Actionable Document

Q: How is an actionable document pleaded?
ANS: When an actionable document is the basis of a pleading, the pleader must
either set forth the substance of such document in the pleading and attach the
original or a copy thereof as an exhibit, which shall be deemed to be a part of the
pleading; or set forth the said document verbatim in the pleading (Sec. 7, Rule 8).

Specific Denials
Q: What are the types of specific denials?
ANS: The three types of specific denial are: absolute denial, partial denial and
denial by disavowal of knowledge.

34
 Effect of Failure to Make Specific Denials
Q: What is the effect of the failure to make a specific denial?
ANS: Where the allegation is not specifically denied, it shall be deemed admitted by
the party against whom such allegation is directed against. (Sec. 11, Rule 8).

NOTE: The following are, nevertheless, not deemed admitted by the failure to make
a specific denial:
a. Amount of unliquidated damages;
b. Conclusions in a pleading which do not have to be denied at all because only
ultimate facts need be alleged in a pleading;
c. Non-material averments or allegations are not deemed admitted because only
material allegations have to be denied (Sec. 11, Rule 8).

When a Specific Denial Requires an Oath

Q: When is an oath required in a specific denial?
ANS: An oath is required in the denial of the:
a. Genuineness and due execution of an actionable document; and
b. Allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8).

E.EFFECT OF FAILURE TO PLEAD

Failure to Plead Defenses and Objections

Q: Discuss the effects of the failure to plead defenses and objections.
ANS: As a general rule, the failure to raise a defense or an objection in an answer
or a motion to dismiss shall be waiver of such defense or objection. However, there
shall be no waiver of the objection or defense if it is based on the following grounds
(RJLP):
a. Res judicata,
b. Lack of jurisdiction over the subject matter,
c. Litis pendentia, and
d. Prescription of the action (Sec. 1, Rule 9).

NOTE: The above defenses may be raised at any stage of the proceedings.

Failure to Plead a Compulsory Counterclaim and Cross-Claim

Q: What is the effect of the failure to plead a compulsory counterclaim and
cross-claim?
ANS: A compulsory counterclaim or a cross-claim that was not set up shall be
barred (Sec. 2, Rule 9).

F.DEFAULT
Q: Define default.
ANS: Default occurs when the defending party fails to file his answer within the
reglementary period (Sec. 3, Rule 9). It does not arise from the failure of the
defendant to appear in the pre-trial or trial stage.

When a Declaration of Default is Proper

Q: When is the declaration of default proper?
ANS: In order for the court to declare the defendant in default the following
requisites must be present:
a. The court must have validly acquired jurisdiction over the person of the defendant
either by service of summons or voluntary appearance;
b. The defendant fails to answer within the time allowed therefore;

35
c. There must be a motion to declare the defendant in default filed by the claiming
party;
d. There must be notice to the defendant by serving upon him a copy of such
motion (Herrera, p.807-808);
e. There must be proof of such failure to answer; and
f. There must be a hearing to declare the defendant in default (Sec 3, Rule 9).

Effect of an Order of Default

Q: Discuss the effects of an Order of Default.
ANS: The order of default has the following effects:
a. The party declared in default loses his standing in court preventing him
from taking part in the trial. He may, however, participate in the trial as a
witness (Sec. 3, Rule 9);
b. The party in default shall still be entitled to notices of subsequent
proceedings (Sec. 3, Rule 9);
c. The declaration of default is not an admission of the truth or validity of the
plaintiff’s claims (Monarch Insurance Co., Inc. v. Court of Appeals, G.R.
No. 92735, June 8, 2000).

NOTE: When a party is declared in default, the court may either proceed to
render judgment or require the plaintiff to present his evidence ex parte, the
reception of which may be delegated to the clerk of court (Sec. 3, Rule 9).

Relief from an Order of Default

Q: How can a defaulting party get relief from an Order of Default?
ANS: The defaulting party may, after notice of the order of default and before
judgment, file under oath a Motion to Lift the Order of Default and show that the
failure to answer was due to fraud, accident, mistake or excusable negligence, and
that he has a meritorious defense appearing in his Affidavit of Merit. In such case,
the order of default may be set aside on such terms and conditions as the judge
may impose in the interest of justice (Sec. 3 [b], Rule 9).

Effect of a Partial Default

Q: What is the effect of a partial default?
ANS: Where a pleading asserts a claim against several defendants and some of
them are declared in default, the court shall try the case against all the defending
parties based on the answers filed and render judgment on the evidence presented
where the claim states a common cause of action against them (Sec. 3 [c], Rule 9).

Q: Gerry sued XYZ Bus Co, and Rico, its bus driver, for injuries Gerry
suffered when their bus ran off the road and hit him. Of the two defendants,
only XYZ Bus Co. filed an answer, alleging that its bus ran off the road
because one of its wheels got caught in an open manhole, causing the bus to
swerve without the driver’s fault. Someone had stolen the manhole cover and
the road gave no warning of the danger it posed. On Gerry’s motion and over
the objection of XYZ Bus Co., the court declared Rico, the bus driver in
default. Did the court act correctly? (2011 Bar)
ANS: No, since the court should have tried the case against both defendants upon
the bus company’s answer.

Extent of Relief
Q: What is the extent of the relief that may be granted to a claimant?

36
 ANS: Where the defendant is declared in default and subsequently judgment is
rendered against him, such judgment shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages (Sec. 3 [d], Rule 9).

Actions where Default is not Allowed

Q: Which actions prohibit a declaration of default?
ANS: The following actions do not allow a party to be declared in default:
a. An action for annulment of marriage;
b. The declaration of nullity of a marriage;
c. An action for legal separation;
d. In special civil actions for certiorari, prohibition and mandamus where a
comment instead of an answer is required to be filed;
e. In small claims; and
f. In cases under summary procedure.

NOTE: Where a rule provides that a “motion to declare defendant in default”

is a prohibited pleading, the conclusion is that no declaration of default may
be allowed.

NOTE: In the first three instances, the court shall order the prosecuting
attorney to investigate whether or not collusion exists between the parties. If
there is no collusion, the court shall order said prosecuting attorney to
intervene for the State in order to see to it that the evidence submitted is not
fabricated (Sec. 3 [e], Rule 9).

G.FILING AND SERVICE OF PLEADINGS

Payment of Docket Fees

Q: Discuss the rule concerning the payment of docket fees.
ANS: The rule is that when an action is filed, the filing must be accompanied by the
payment of the requisite docket and filing fees. Jurisdiction over the case is
acquired only upon payment of the prescribed fees. Thus without such payment,
the general rule is that the complaint is not considered filed (Nestle Philippines v.
FY Sons, Inc., G.R. No. 150780, May 5, 2006).

Q: Is the rule absolute?

ANS: No. There were some instances when the rule had been applied with liberality
as when the payment was allowed within a reasonable time but not beyond the
prescriptive period (Sun Insurance Office, Ltd. v. Asuncion, G.R. No. 79937-38,
February 13, 1989). But still in this case, the court acquires jurisdiction only upon
full payment thereof.

Filing versus Service of Pleadings

Q: Differentiate filing from service of pleadings.
ANS: Filing is the act of presenting the pleading or other papers to the clerk of court
whereas service of pleadings refers to the act of providing a party with a copy of the
pleading or paper concerned (Sec. 2, Rule 13).

Periods of Filing of Pleadings

Q: Discuss the rules on the periods of filing of pleadings.
ANS: The filing of responsive pleadings shall have the following periods:
a. Answer to the complaint – within 15 days after service of summons, unless
a different period is fixed by the court (Sec. 1, Rule 11);

37
 b. Answer of a defendant foreign private juridical entity
i. If it has a resident agent – within 15 days after the service of summons
to such agent;
ii. If it has no resident agent but it has an agent or officer in the Philippines
– within 15 days after service of summons to said agent or officer.
iii. If it has no resident agent, agent or officer the service of summons shall
be made on the proper government office which will then forward it by
registered mail within 10 days to the corporation’s office – The answer
must be filed within 30 days from receipt of the summons by the home
office (Sec. 2, Rule 11);
c. Where the service is made by publication – within the time specified in the
order granting leave to serve summons by publication which shall not be
less than 60 days after notice;
d. Where the defendant is a non-resident on whom extraterritorial service is
made – within 60 days from such service;
e. Answer to an amended complaint – where the amendment is a matter of
right, within 15 days from the service of the amended complaint. If the
amendment is not a matter of right, the answer must be filed within 10 days
from notice of the order admitting the same;
f. The same periods shall apply to answers filed on an amended
counterclaim, cross-claim and third-party complaint (Sec. 3, Rule 11);
g. Answer to a counterclaim or cross-claim – within 10 days from service
(Sec. 4, Rule 11);
h. Answer to a third-party complaint – The period to answer shall be the same
as the periods given in answering a complaint which shall either be 15, 30
or 60 days as the case may be (Sec. 5, Rule 11);
i. Reply – within 10 days from the service of the pleading responded to (Sec.
6, Rule 11);
j. Answer to supplemental complaint – within 10 days from notice of the order
admitting the supplemental complaint, unless a different period is fixed by
the court (Sec. 7, Rule 11);
k. Answer to a complaint under the Rules on Summary Procedure – within 10
days from service of summons.

NOTE: The period to file an answer is further modified, in certain cases, by the
following: motion to dismiss, motion for a bill of particulars, motion for extension,
and when the last day falls on a Saturday, Sunday or Holiday.

Manner of Filing
Q: Discuss the manner of filing of pleadings.
ANS: The pleadings may be filed:
a. By presenting the original copy of the pleading, notice, appearance,
motion, order or judgment personally to the clerk of court who shall
endorse on the pleading the date and hour of filing; or
b. By registered mail which must be through the Registry Service. The date of
the mailing or payments or deposits as shown by the post office stamp on
the envelope or the registry receipt, shall be considered as the date of
filing, payment, or deposit in court (Sec. 3, Rule 13).

Modes of Service

Personal Service
Q: How is the personal service of pleadings done?

38
ANS: The personal service is the preferred mode of service, with the other modes
being the exception to this general rule. It is made by:
a. Delivering a copy of the papers served personally to the party or his counsel; or
b. By leaving the papers in the counsel’s office with his clerk or a person having
charge thereof; or
c. If no person is found in his office, or his office is not known, or he has no office,
then by leaving a copy between 8 a.m. and 6 p.m. at the party’s or counsel’s
residence, if known, with a person of sufficient age and discretion then residing
therein (Sec. 6, Rule 13).

Service by Mail
Q: How is service by mail done?
ANS: Service by mail may either be by registered mail or by ordinary mail.

Q: How is service by registered mail done?

ANS: Service by way of registered mail is the preferred mode of mailing. Service by
registered mail shall be made:
a. by depositing the copy in the post office;
b. in a sealed envelope;
c. plainly addressed to the party or his counsel at his office, if known;
d. otherwise, at his residence, if known;
e. with postage fully pre-paid; and
f. with instructions to the postmaster to return the mail to the sender after 10 days if
undelivered (Sec. 7, Rule 13).

Q: How is service by ordinary mail done?

ANS: If no registered service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail (Sec. 7, Rule 13).

Substituted Service
Q: When is substituted service available?
ANS: This mode is availed of only when there is failure to effect service either
personally or by mail when the office and residence of the party or counsel is
unknown. It is effected by the delivery of the copy to the clerk of court, with proof of
failure of both personal service and service by mail (Sec. 8, Rule 13).

Service of Judgments, Final Orders or Resolutions

Q: How are judgments, final orders, or resolutions served?
ANS: Judgments, final orders or resolutions shall be served either personally or by
registered mail. When a party summoned by publication has failed to appear,
judgments, final orders or resolutions against him shall be served upon him also by
way of publication at the expense of the prevailing party (Sec. 9, Rule 13).

Priorities in Modes of Service and Filing

Q: In the service and filing of pleadings, which of the modes is the priority?
ANS: Whenever practicable, the service and filing 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 was not done personally (Sec. 11, Rule 13). The paper may be considered
as not filed if this rule is violated.

When Service is Deemed Complete

Q: When is service deemed complete?

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 ANS: The following rules shall apply:
a. A Personal Service is deemed complete upon actual delivery;
b. A service by way of registered mail is deemed complete upon actual
receipt by the addressee or after 5 days from the date he received the first
notice of the postmaster, whichever is earlier;
c. In service by ordinary mail, it is deemed complete upon the expiration of 10
days after mailing unless the court otherwise provides (Sec. 10, Rule 13);
d. In substituted service, it is complete at the time of the delivery of the copy
to the clerk of court (Sec. 8, Rule 13).

Proof of Filing and Service

Q: How is filing proved?
ANS: The filing of a pleading or paper is proved by its existence in the record. If it is
not in the record:
a. If filed personally: Proved by the written or stamped acknowledgment of its filing
by the clerk of court on a copy of the same; or
b. If filed by registered mail: Proved by the registry receipt and the affidavit of the
person who did the mailing with a full statement of:
i. The date and place of depositing the mail in the post office in a sealed
envelope addressed to the court;
ii. With postage fully prepaid; and
iii. With instructions to the postmaster to return the mail to the sender after 10
days if undelivered (Sec. 12, Rule 13).

Q: How is service proved?

ANS: The following rules shall apply to prove service of the pleadings:
a. Proof of personal service – shall consist of:
i. The written admission of the party served; or
ii. The official return of the server; or
iii. The affidavit of the party serving containing full information of the date,
place and manner of the service.
b. Proof of service by registered mail – shall be shown by the affidavit of the
mailer showing compliance with Sec. 7 of Rule 13 and the registry receipt
issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof of the
unclaimed lettter together with the certified or sworn copy of the notice
given by the postmaster to the addressee (Sec. 13, Rule 13);
c. Proof of service by ordinary mail – service shall be proved by the affidavit
of the mailer showing compliance with Sec. 7 of Rule 13.

H.AMENDMENT

Amendment as a Matter of Right

Q: When is an amendment a matter of right?
ANS: The party has the unconditional right to amend his pleading once before a
responsive pleading thereto is served by the other party; in the case of a reply, at
any time within 10 days after it is served (Sec. 2, Rule 10).

Q: Can the plaintiff still amend his complaint as a matter of right even if the
defendant has already been declared in default?
ANS: Yes. The Rules provide that amendment is a matter of right before a
responsive pleading is filed by the defendant. The order of default is deemed lifted

40
and the defendant is given a new reglementary period within which to file an answer
to the amended complaint.

Amendments by Leave of Court

Q: When is an amendment required to have leave of court?
ANS: Where a substantial amendment is sought to be made after a responsive
pleading has already been served, it is necessary for the party seeking such
amendment to obtain leave of court. A motion must be filed in court with notice to
the adverse party who shall be afforded the opportunity to be heard (Sec. 3, Rule
10).

Q: Can the court refuse to allow an amendment?

ANS: Yes. The court may refuse to allow an amendment under the following
circumstances:
a. When it is made with intent to delay (Sec. 3, Rule 10);
b. When the amendment is for the purpose of making the complaint confer
jurisdiction upon the court;
c. When the amendment is for the purpose of curing a premature or non-existing
cause of action; and
d. When the cause of action, defense, or theory of the case is changed.

Formal Amendment
Q: What is a formal amendment?
ANS: A formal amendment cures a defect in the designation of the parties and
other clearly clerical or typographical errors. It may be summarily corrected by the
court at any stage of the action, at its initiative or on motion, provided no prejudice
is caused to the adverse party (Sec. 4, Rule 10).

Amendments to Conform to or Authorize Presentation of Evidence

Q: What is an amendment to conform to evidence?
ANS: When issues not raised in the pleadings are tried with the express or implied
consent of the parties, they shall be treated as if they had been raised in the
pleadings. The pleadings may be amended to conform to such evidence, upon
motion of any party at any time, even after judgment and the failure to amend shall
not affect the result of the trial on these issues (Sec. 5, Rule 10).

Different from Supplemental Pleadings

Q: What are supplemental pleadings?
ANS: A supplemental pleading is one which sets forth transactions, occurrences, or
events which have happened since the date of the pleading sought to be
supplemented. Its filing shall require leave of court through the filing of a
corresponding motion, upon reasonable notice (Sec. 6, Rule 10).

Q: What are the differences between an amended pleading and a

supplemental pleading?
ANS: The distinctions between an amended pleading and a supplemental pleading
are the following:
a. An amended pleading refers to facts existing at the time of the commencement of
the action. It takes the place of the original pleading; a supplemental pleading
refers to facts arising after the filing of the original pleading;
b. An amended pleading can be made as a matter of right as when no responsive
pleading has yet been filed; a supplemental pleading is taken together with the
original pleading and always with leave of court;

41
 c. When an amended pleading is filed, a new copy of the entire pleading must be
filed, incorporating the amendments, which shall be indicated by appropriate
marks; a supplemental pleading does not require the filing of a new copy of the
entire pleading.

Effect of Amended Pleading

Q: Discuss the effects of an amended pleading.
ANS: An amended pleading has the following effects:
a. Amended pleading shall supersede the pleading it amended;
b. Admissions in the superseded pleading can still be received in evidence
against the pleader but as an extrajudicial admission which must be
formally offered in evidence; and
c. Claims or defenses alleged in the superseded pleading which are not
incorporated in the amended pleading are deemed to have been waived
(Sec. 8, Rule 10).

VI. SUMMONS
Q: What is a summons?
ANS: Summons is a writ by which a defendant is notified of the action brought
against him (Hock v. Court of Appeals, G.R. No. L-60848, May 20, 1991). It is a
means by which the court acquires jurisdiction over the person of the defendant.
The issuance of summons is mandatory on the part of the clerk of court upon the
filing of the complaint and the payment of the requisite legal fees.

A.NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN

PERSONAM, IN REM AND QUASI IN REM
Q: Discuss the nature and purpose of summons in relation to an action in
personam, in rem and quasi in rem.
ANS: In actions in personam, the purpose of summons is (1) to notify the defendant
of the action against him and (2) to acquire jurisdiction over his person whereas in
actions in rem or quasi in rem, jurisdiction over the defendant is not mandatory and
the court acquires jurisdiction over an action so long as it acquires jurisdiction over
the res. The purpose of summons is not the acquisition of jurisdiction but to satisfy
the requirements of due process (Umandap v. Sabio, Jr., G.R. No. 140244, August
29, 2000).

B.VOLUNTARY APPEARANCE
Q: What is the effect of a voluntary appearance?
ANS: Where the defendant makes a voluntary appearance in the action it shall be
the equivalent to service of summons and jurisdiction is acquired over him (Sec. 20,
Rule 14).

Q: What is a special appearance?

ANS: There is special appearance when the defendant appears before the court for
the purpose of objecting to the jurisdiction of the court over the person of the
defendant even if other grounds are included in a motion to dismiss.

C.SERVICE IN PERSON
Q: How is service in person made?
ANS: In an action in personam the preferred mode of serving summons is through
service in person. The defendant is handed a copy of the summons in person and
should he refuse to sign for it, the server shall “tender” it to him (Sec. 6, Rule 14).

42
 Only when service in person cannot be made promptly and after all efforts to do so
are exerted, may substituted service be resorted to.

D.SUBSTITUTED SERVICE
Q: How is substituted service of summons done?
ANS: Where personal service of summons cannot be made for justifiable causes
within a reasonable period of time, substituted service may be had. It is carried out
by leaving copies of the summons at the defendant’s residence with a person of
suitable age and discretion residing therein, or leaving copies at the defendant’s
office or regular place of business with some competent person in charge thereof
(Sec. 7, Rule 14).

NOTE: The following facts must first be shown for the service to be valid:
a. The impossibility of personal service within a reasonable time;
b. The efforts exerted to locate the person to be served; and
c. Service upon a person of sufficient age and discretion residing in the
same place or some competent person in charge of his office or regular
place of business.

E.CONSTRUCTIVE SERVICE (BY PUBLICATION)

Service upon a Defendant where his Identity is Unknown or his whereabouts

are Unknown
Q: How is service upon a defendant whose identity or whereabouts are
unknown effected?
ANS: In “any action” (in rem, quasi in rem and in personam) where the defendant is
designated as an unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service may, by leave of
court, be effected upon him by publication in a newspaper of general circulation and
in such places and for such time as the court may order (Sec. 14, Rule 14). In this
case, the whereabouts of the defendant is unknown, but he is in the Philippines.

Service upon Residents Temporarily outside the Philippines (See Extra-

Territorial Service)

F.EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED

Q: When may extra-territorial service be availed of?
ANS: Extraterritorial service may be availed of under Sections 15 and 16 of Rule
14.
a. Under Section 15, a non-resident not found in the Philippines named as a
defendant in an action in rem or quasi in rem may with leave of court be the
subject of extraterritorial service of summons in the following ways:
i. By personal service of summons done outside the Philippines;
ii. By publication in a newspaper of general circulation in such places and for
such time as the courts shall set. A copy of the summons and order by the
court shall be sent by registered mail to the last known address of defendant;
or
iii. By any other manner which the court may deem sufficient.

NOTE: The specific actions, which are either in rem or quasi in rem that will
justify extraterritorial service of summons in actions involving a nonresident are:
i. Actions that affect the personal status of the plaintiff;

43
 ii. Actions which relate to, or the subject matter of which is property within the
Philippines, in which the defendant claims a lien or interest, actual or
contingent;
iii. Actions in which the relief demanded consists, wholly or in part, in excluding
the defendant from an interest in property located in the Philippines; and
iv. When the defendant’s property has been attached in the Philippines.

b. Under Section 16, a resident who is temporarily out of the Philippines named as a
defendant in any action (in rem, quasi in rem and in personam) may with leave of
court be the subject of extraterritorial service in the same ways as
abovementioned.

Q: How is service on a foreign private juridical entity made?

ANS: When the defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent designated
in accordance with law for that purpose, or, if there be no such agent, on the
government official designated by law to that effect, or on any of its officers or
agents within the Philippines.

If the foreign private juridical entity is not registered in the Philippines or has no
resident agent, service may, with leave of court, be effected out of the Philippines
through any of the following means:
a. By personal service coursed through the appropriate court in the foreign country
with the assistance of the Department of Foreign Affairs;
b. By publication once in a newspaper of general circulation in the country where
the defendant may be found and by serving a copy of the summons and the court
order by-registered mail at the last known address of the defendant;
c. By facsimile or any recognized electronic means that could generate proof of
service; or
d. By such other means as the court may in its discretion direct (AM. No. 11-3-6-
SC).

G.SERVICE UPON PRISONERS AND MINORS

Q: How is the summons served to a prisoner?
ANS: Where a defendant is a prisoner, service shall be effected upon him by the
officer managing the jail or institution where the prisoner is confined (Sec. 9, Rule
14). The jail manager is deemed deputized as a special sheriff. It is not necessary
for the court officer to go into jail and look for the prisoner.

Q: In case the defendant is a minor, insane or an incompetent, to whom is the

service of summons made?
ANS: Service upon a minor, insane or an incompetent shall be made upon him
personally and on his legal guardian, if he has one, and if none to his guardian ad
litem whose appointment shall be applied for by the plaintiff. If the defendant is a
minor, service may also be made to either of his parents (Sec. 10, Rule 14).

H.PROOF OF SERVICE
Q. Discuss the rules regarding the proof of service.
ANS: In proving the service of summons, the following rules are applicable:
a. The proof of service shall be made in writing by the server and shall state
the manner, place and date of service, specify any accompanying papers
and the name of the person who received the summons. It shall be sworn
to if made by a person other than a sheriff or his deputy (Sec. 18, Rule 14).

44
 b. Where service is by publication, it may be proved by the affidavit of the
printer, his foreman, principal clerk, editor, business or advertising
manager to which a copy of the publication shall be attached and by an
affidavit showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address (Sec. 19, Rule 14).

VII. MOTIONS
A.MOTIONS IN GENERAL

Definition of a Motion
Q: What is a Motion?
ANS: A motion is an application for relief other than by a pleading (Sec. 1, Rule 15).

Motions versus Pleadings

Q: Distinguish between motions and pleadings.
ANS: The differences between motions and pleadings are the following:
a. The purpose of a pleading is to submit a claim or defense for appropriate
judgment; the purpose of a motion is to apply for an order not included in
the judgment;
b. A pleading may be initiatory; a motion cannot be initiatory as they are
always made in a case already filed in court;
c. A pleading is always filed before judgment; a motion may be filed even
after judgment;
d. There are only 9 kinds of pleadings allowed by the Rules; any application
for not by a pleading is a motion;
e. A pleading must be written; a motion may be oral when made in open
court or in the course of a hearing or trial.

Contents and Forms of Motions

Q: Is there a form prescribed?
ANS: All motions shall be in writing except when it is made in open court or in the
course of a hearing or trial (Sec. 2, Rule 15).

Q: What are the contents of a motion?

ANS: Motions shall:
a. State the relief sought to be obtained;
b. The grounds upon which the motion is based; and
c. Be accompanied by supporting affidavits and other papers when
mandated by the Rules or necessary to prove the facts in the motion (Sec.
3, Rule 15).

Notice of Hearing and Hearing of Motions

Q: Who shall set the hearing of a written motion?
ANS: Except for motions which the court may act upon without prejudice to the
rights of the adverse party (ex parte motions), every written motion shall be set for
hearing by the applicant (Sec. 4, Rule 15).

Q: Discuss the rules regarding notice of hearing.

ANS: The motion which contains the notice of hearing shall be served as to ensure
its receipt by the other party at least 3 days before the date of hearing, unless the
court for good cause sets the hearing for shorter notice (Sec. 4, Rule 15). The

45
notice of hearing shall be addressed to all the parties concerned and shall specify
the time and date of the hearing which shall not be later than 10 days after the filing
of the motion (Sec. 5, Rule 15). Proof of service is necessary as no written motion
set for hearing shall be acted upon by the court without proof of service thereof
(Sec. 6, Rule 15).

Q: When are motions heard by the court?

ANS: Except motions requiring immediate action, all motions shall be scheduled for
hearing on Friday afternoons, or if Friday is a nonworking day, in the afternoon of
the next working day (Sec. 7, Rule 15).

Omnibus Motion Rule

Q: What is the Omnibus Motion Rule?
ANS: Every motion that attacks a pleading, judgment, order or proceeding shall
include all grounds then available, and all objections not so included shall be
deemed waived (Sec. 8, Rule 15). However, the following objections are not
deemed waived even if not raised:
a. That the court has no jurisdiction over the subject matter;
b. That there is another action pending between the same parties for the same
cause (litis pendencia);
c. That the action is barred by a prior judgment (res judicata);
d. That the action is barred by the statute of limitations (prescription).

Q: The defendant in an action for a sum of money filed a motion to dismiss

the complaint on the ground of improper venue. After hearing, the court
denied the motion. In his answer, the defendant claimed prescription of
action as affirmative defense, citing the date alleged in the complaint when
the cause of action accrued. May the court, after hearing, dismiss the action
on ground of prescription? (2011 Bar)
ANS: Yes, because prescription is an exception to the rule on Omnibus Motion
(Sec. 8, Rule 15).

Q: Is it possible to file several motions to dismiss successively without

violating the Omnibus Motion rule?
ANS: Yes. Successive motions to dismiss may be filed under the four non-waivable
grounds, i.e. res judicata, lack of jurisdiction over the subject matter, litis pendentia
and prescription.

Litigated and Ex Parte Motions

Q: What is a litigated motion?
ANS: It is one which requires that the parties be heard before a ruling on the motion
is made by the court.

Q: What is an ex parte motion?

ANS: An ex parte motion is one which does not require that the parties be heard
and which the court may act upon without prejudicing the rights of the other party. It
is taken or granted at the instance and for the benefit of one party, and without
notice to or contestation by any party adversely affected (Regalado, Remedial Law
Compendium, 2009 ed., p. 264)

Pro Forma Motions

Q: What are pro forma motions?

46
 ANS: A pro forma motion refers to a motion which does not satisfy the
requirements of the Rules and which will be treated as a motion intended to delay
the proceedings. It is that which does not comply with the rules on motion and is
considered as one filed merely to delay the proceedings (Marikina Development
Corp., v. Flojo, G.R. No. 110801, December 8, 1995).

B.MOTION FOR BILL OF PARTICULARS

Purpose and when Applied for

Q: State the purpose of the motion for bill of particulars.
ANS: The purpose is to seek an order from the court directing the pleader to submit
a “bill of particulars” which avers matters with sufficient definiteness or particularity
to enable the movant to prepare his responsive pleading. Such motion shall point
out the defects complained of, the paragraphs wherein they are contained, and the
details desired (Sec. 1, Rule 12).

Q: When should the motion be applied for?

ANS: The motion shall be filed before the responsive pleading is filed. Reference
should thus be had to the periods to file an answer or reply laid down in Rule 11. If
the pleading is a reply, the motion must be filed within 10 days from service thereof
(Sec. 1, Rule 12).

Actions of the Court

Q: What actions may the court take upon the motion applied for?
ANS: The court may either deny or grant the motion outright or to hold a hearing of
the motion (Sec. 2, Rule 12).

Compliance with the Order and Effect of Non-Compliance

Q: How should the order be complied with?
ANS: If the motion is granted either in whole or in part, the pleader shall submit a
bill of particulars within 10 days from notice of the order, unless a different period is
fixed by the court. The bill may be filed either in a separate or in an amended
pleading with copy served to the adverse party (Sec. 3, Rule 12).

Q: State the effects of non-compliance with the court order.

ANS: The non-compliance with the order produces the following effects:
a. If the order is disobeyed or there is insufficient compliance, the court may
order the striking out of the pleading or parts of it to which the order was
directed or make such other orders as it may deem just (Sec. 4, Rule 12);
b. If the plaintiff fails to obey, his complaint may be dismissed with prejudice
unless otherwise ordered by the court.
c. If defendant fails to obey, his answer will be stricken off and his
counterclaim dismissed, and he will be declared in default upon motion of
the plaintiff.

Effect on the Period to File a Responsive Pleading

Q: What is the effect of the filing of the motion as regards to the reglementary
period for filing a responsive pleading?
ANS: The filing of a motion for a bill of particulars shall stay the period to file the
responsive pleading.

NOTE: After the service of the bill of particulars or after notice of the denial of the
motion, the movant may file his responsive pleading within the period to which he

47
 was entitled to at the time the motion was filed. Such period shall not be less than 5
days in any event (Sec. 5, Rule 12).

C.MOTION TO DISMISS

Grounds
Q: What are the grounds of a motion to dismiss?
ANS: Under Section 1 of Rule 16 of the Rules of Court, the following may be used
as a ground for a motion to dismiss:
a. Lack of jurisdiction over the defendant;
b. Lack of jurisdiction over the subject matter of the claim;
c. Improper venue;
d. Plaintiff has no legal capacity to sue;
e. Litis pendentia;
f. Res judicata;
g. Prescription;
h. Failure to state a cause of action;
i. The claim has been paid, waived, abandoned or otherwise extinguished;
j. The claim is unenforceable under the Statute of Frauds;
k. Non-compliance with a condition precedent for filing the claim (Sec. 1, Rule 16).

Resolution of Motion
Q: What actions may the court take in resolving the motion?
ANS: After hearing the court may:
a. Dismiss the action or claim;
b. Deny the motion; or
c. Order the amendment of the pleading.

NOTE: The resolution of the motion shall not be delayed for the reason that
the ground relied upon is indubitable. It shall state clearly and distinctly the
reason for the court’s action (Sec. 3, Rule 16).

Remedies of the Plaintiff when the Complaint is Dismissed

Q: Discuss the remedies available to the plaintiff if the motion is granted.
ANS: The plaintiff may:
a. Re-file the complaint - Where the dismissal is final but is without prejudice,
the plaintiff may simply re-file the action (e.g. improper venue).
b. Appeal - Where the dismissal is final and it bars the re-filing of the case, he
may appeal from the order of dismissal (e.g. res judicata).
c. Petition for Certiorari - Where the dismissal is without prejudice and the
court has gravely abused its discretion in doing so, the plaintiff may resort
to certiorari.

Remedies of the Defendant when the Motion is Denied

Q: What remedies are available to the defendant if the motion is denied?
ANS: The defendant may:
a. Appeal - As a rule, if the motion to dismiss is denied, such order is
interlocutory and thus not appealable under Rule 41. The defendant must
file his Answer and if adverse judgment is rendered he may file an appeal
of such judgment.
b. Petition for Certiorari - However, where the denial of the motion is tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction
the defendant may resort to Certiorari or Prohibition under Rule 65.

48
 Effect of Dismissal of the Complaint on Certain Grounds
Q: What is the effect of the dismissal of the complaint?
ANS: As a general rule, the dismissal of a complaint shall be without prejudice to
the re-filing of the case except those cases covered by the bar by dismissal-rule
(Sec.5, Rule 16).

When Grounds Pleaded as Affirmative Defense

Q: Can the defendant, instead of filing a motion to dismiss, incorporate the
grounds for dismissal in his Answer?
ANS: Yes. Where no motion to dismiss is filed but the grounds therefor are pleaded
in the answer as an affirmative defense, the court in its own discretion, may set a
preliminary hearing as if a motion to dismiss was filed (Sec. 6, Rule 16).

Bar by Dismissal
Q: Which grounds have the effect of barring the action?
ANS: When the dismissal is for any of the following grounds, the action shall be
barred and may no longer be re-filed:
a. Res judicata
b. Prescription
c. Payment, waiver, abandonment or extinguishment of the claim
d. Unenforceability of the claim under the Statute of Frauds (Sec. 5, Rule 16).

Distinguished from Demurrer to Evidence Under Rule 33

Q: What are the differences between a motion to dismiss and a demurrer to
evidence?
ANS: The differences between motion to dismiss and demurrer to evidence are the
following:

Motion To Dismiss Under Rule 33

Motion To Dismiss Under Rule 16
(Demurrer To Evidence)
Grounded on preliminary objections Based on insufficiency of evidence
May be filed by any defending party May be filed only by the defendant
against whom a claim is asserted in against the complaint of the plaintiff
the action
Should be filed within the time for but May be filed only after the plaintiff has
prior to the filing of the answer of the completed the presentation of his
defending party to the pleading evidence
asserting the claim against him
If denied, defendant must file an If denied, defendant may present
answer, or else he may be declared evidence.
in default. If granted, plaintiff appeals and the
If granted, plaintiff may appeal or if order of the dismissal is reversed, the
subsequent case is not barred, he defendant loses his right to present
may re-file the case. evidence.

VIII. DISMISSAL OF ACTIONS

A.DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE
Q: When can the plaintiff file for dismissal of the complaint by notice?

49
 ANS: The plaintiff, at any time before the service of an answer or a motion for
summary judgment, may file a notice of dismissal of his complaint. Upon its filing
the court shall issue an order confirming such dismissal (Sec. 1, Rule 17).

Q: Is the dismissal upon notice by the plaintiff with prejudice?

ANS: This dismissal shall be without prejudice to the re-filing of the complaint
except when:
a. The notice of dismissal provides that the dismissal is with prejudice; or
b. The plaintiff has previously dismissed the same case in a court of competent
jurisdiction (Sec. 1, Rule 17).

Q: Discuss the Two-Dismissal Rule.

ANS: This rule applies when the plaintiff has twice dismissed the action based on or
including the same claim in a court of competent jurisdiction. The second notice of
dismissal will bar a further re-filing of the action because it will operate as an
adjudication of the claim based upon the merits.

B.DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING

COUNTERCLAIM
Q: Can a plaintiff file a motion to dismiss his own complaint?
ANS: Yes. Once an answer or a motion for summary judgment has been served on
the plaintiff, the dismissal is no longer a matter of right and will require the filing of a
motion to dismiss and not a mere notice thereof. It will be subject to the approval of
the court upon such terms and conditions as are just.
a. Unless otherwise specified in the order, the dismissal shall be without prejudice.
b. A class suit shall not be dismissed nor compromised without the approval of the
court (Sec. 2, Rule 17).

Q: What is the effect of the dismissal on the defendant’s counterclaim?

ANS: When a counterclaim has been pleaded by the defendant prior to the service
upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the
complaint. It shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within 15 days from notice of the motion he
manifests his preference to have the counterclaim resolved in the same action (Sec.
2, Rule 17).

C.DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF

Q: Can the court dismiss the complaint?
ANS: Yes. The court may, upon motion or motu proprio, dismiss a complaint even
when the plaintiff has no desire to have the same dismissed when:
a. Plaintiff fails to appear for no justifiable cause on the day of the presentation of
his evidence in chief on the complaint;
b. Plaintiff fails to prosecute his action for an unreasonable length of time; or
c. Plaintiff fails to comply with the Rules or any order of the court (Sec. 3, Rule 17).

Q: Is the dismissal under this rule with prejudice?

ANS: This dismissal shall have the effect of an adjudication upon the merits and is
thus with prejudice to the re-filing of the action, unless the court declares otherwise.
However, the dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action (Sec. 3, Rule 17).

Q: What is the available remedy to the plaintiff?

50
 ANS: Since the dismissal has the effect of an adjudication upon the merits of the
case, appeal is the proper remedy.

D.DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY

COMPLAINT
Q: Discuss the rules regarding the dismissal of counterclaims, cross-claims
or third-party complaints.
ANS: The same rules as discussed above shall also apply to the dismissal of a
counterclaim, cross-claim or third-party complaint. A notice of dismissal here shall
be made before a responsive pleading or motion for summary judgment is served or
if there is none, before the introduction of evidence at trial or hearing (Sec. 4, Rule
17).

IX. PRE-TRIAL
A.CONCEPT OF PRE-TRIAL
Q: What is a pre-trial?
ANS: The pre-trial is a mandatory conference and personal confrontation before the
judge between the parties and their respective counsel. It is conducted after the last
pleading has been served and filed, with the plaintiff having the duty to move ex
parte that the case be set for pre-trial (Sec. 1, Rule 18).

B.NATURE AND PURPOSE

Q: What should the Court consider during the pre-trial?
ANS: The court shall consider the following matters in the pre-trial:
a. The possibility of an amicable settlement or submission to alternative
modes of dispute resolution;
b. The simplification of the issues;
c. The necessity or desirability of amendments to the pleadings;
d. The possibility of obtaining stipulations or admissions of facts and
documents to avoid unnecessary proof;
e. The limitation of the number of witnesses;
f. The advisability of a preliminary reference of the issues to a commissioner;
g. The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist;
h. The advisability or necessity of suspending the proceedings;
i. Such other matters as may aid in the prompt disposition of the case (Sec.
2, Rule 18).

Q: Is pre-trial mandatory?
ANS: Pre-trial is mandatory in all civil cases, in all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Municipal Trial Court in Cities, Municipal Trial
Court, Metropolitan Trial Courts, and Municipal Circuit Trial Court. It is likewise
mandatory in both civil and criminal cases under the Rules on Summary Procedure.

C.NOTICE OF PRE-TRIAL
Q: To whom shall the notice of the pre-trial be served?
ANS: The notice of pre-trial shall be served on the counsel of the party if the latter
is represented by counsel. Otherwise, the notice shall be served on the party
himself. The counsel is charged with the duty of notifying his client of the date, time
and place of the pre-trial (Sec. 3, Rule 18).

51
D.APPEARANCE OF THE PARTIES; EFFECT OF FAILURE TO APPEAR
Q: Can the parties be excused from appearing at the pre-trial?
ANS: Both parties and their counsels have the duty to appear at the pre-trial. The
non-appearance of a party may be excused only if a valid cause is shown therefor
or if a representative shall appear in his behalf fully authorized in writing to enter
into an amicable settlement, to submit to alternative modes of dispute resolution,
and to enter into stipulations or admissions of facts and of documents (Sec. 4, Rule
18).

Q: What is the effect of the failure of the plaintiff to appear?

ANS: The failure of the plaintiff to appear shall be cause for the dismissal with
prejudice of the action, unless the court orders otherwise (Sec. 5, Rule 18). The
dismissal shall have the effect of an adjudication on the merits and is thus final. The
remedy of the plaintiff is to appeal the order of dismissal.

Q: Discuss the effect of the failure of the defendant to appear during the pre-
trial.
ANS: The failure of the defendant to appear shall be cause to allow the plaintiff to
present his evidence ex parte and for the court to render judgment on the basis of
the evidence presented by the plaintiff (Sec. 5, Rule 18). However, the defendant
shall not be declared in default. The order to present evidence ex parte is
interlocutory and thus not appealable. The defendant may ask for reconsideration
and if the denial is with grave abuse of discretion he may file a petition for certiorari.

E.PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE

Q: Discuss the rules on filing of the pre-trial brief.
ANS: The parties shall file a pre-trial brief with the court and serve on the adverse
party, in such manner as shall ensure their receipt thereof at least three (3) days
before the date of the pre-trial (Sec. 6, Rule 18).

Q: What should the pre-trial brief contain?

ANS: The pre-trial brief shall contain, among others:
a. A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms
thereof;
b. A summary of admitted facts and proposed stipulations of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented stating the purpose thereof;
e. A manifestation of their having availed or their intention to avail themselves
of discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, and the substance of their
respective testimonies (Sec. 6, Rule 18).

Q. What is the effect of the failure to file a pre-trial brief?

ANS: The failure to file the brief shall have the same effects as the failure to appear
during pre-trial (Sec. 6, Rule 18).

F.DISTINCTION BETWEEN PRE-TRIAL IN CIVIL AND CRIMINAL CASES

Q: What are the differences between pre-trial in civil cases and those in
criminal cases?
ANS: The following are the differences between the two:

52
 Pre-Trial In Civil Cases
Set when the plaintiff moves ex
parte to set the case for pre-trial.
The motion to set the case for
pre-trial is made after the last
pleading has been served and
filed.
Considers the possibility of an
amicable settlement as an
important objective
The proceedings are to be
recorded in the minutes to be
signed by either the party or his
counsel.
The sanctions for non-
appearance in a pre-trial are
imposed upon the plaintiff and
the defendant.
The presence of the defendant is
required, unless he is duly
represented at the pre-trial
conference by his counsel with
the requisite authority to enter
into a compromise agreement,
failing in either of which the case
shall proceed as if the defendant
has been declared in default.
The presence of the plaintiff is
required at the pre-trial unless
excused therefrom for valid
cause or if he is represented
therein by a person fully
authorized in writing to perform
the acts specified in Sec 4, Rule
18.
Absent such justification, the
case may be dismissed with or
without prejudice.
Pre-Trial In Criminal Cases
Ordered by the court and no
motion to set the case for pre-trial
is required from either the
prosecution or the defense.
The pre-trial is ordered by the
court after arraignment and within
30 days from the date the court
acquires jurisdiction over the
person of the accused.
Does not include the considering
of the possibility of amicable
settlement as one of its purposes.
All agreements or admissions
made or entered during the pre-
trial conference shall be reduced
in writing and signed by both the
accused and counsel; otherwise,
they cannot be used against the
accused.
The sanctions in a criminal case
are imposed upon the counsel for
the accused or the prosecutor.
The accused is merely required to
sign the written agreement arrived
at in the pre-trial conference, if he
is in conformity therewith.
Unless otherwise required by the
court, his presence therefore is
not indispensable.
NOTE: This is aside from the
consideration that the accused
may waive his presence at all
stages of the criminal action,
except at the arraignment,
promulgation of judgment or when
required to appear for
identification.
The presence of the private
offended party is not required at
the pre-trial. Instead, he is
required to appear at the
arraignment of the accused for
purposes of plea bargaining,
determination of civil liability, and
other matters requiring his
presence.
Should he fail to appear therein,
and the accused offers to plead
guilty to a lesser offense
necessarily included in the
53

A pre-trial brief is required with
the particulars and the sanctions
provided by Sec. 6, Rule 18.
offense charged, he may be
allowed to do so with the
conformity of the trial prosecutor
alone.
The Rules do not require the filing
of a pre-trial brief in criminal cases
but only require attendance at a
pre-trial conference to consider
the matters stated in Sec.2, Rule
118 (Regalado, pp.519-520).

G.ALTERNATIVE DISPUTE RESOLUTION (ADR)

Q: Define Alternative Dispute Resolution (ADR).
ANS: ADR System means any process or procedure used to resolve a dispute or
controversy, other than by adjudication of a presiding judge of a court or an officer
of a government agency, in which a neutral third party participates to assist in the
resolution of issues, which includes arbitration, mediation, conciliation, early neutral
evaluation, mini-trial, or any combination thereof (R.A. No. 9285).

Q: When is the Alternative Dispute Resolution not applicable?

ANS: The provisions of R.A. No. 9285 shall not apply to resolution or settlement of
the following (Section 6):
a. Labor disputes covered by the Labor Code as amended and its Implementing
Rules and Regulations;
b. The civil status of persons;
c. The validity of marriage;
d. Any ground for legal separation;
e. The jurisdiction of courts;
f. Future legitime;
g. Criminal liability;
h. Those of which by law cannot be compromised (example: future support).

Special Rules of Court on ADR (A.M. No. 07-11-08-SC)

Q: Who makes the request to a referral to ADR?
ANS: A party to a pending action filed in violation of the arbitration agreement,
whether contained in an arbitration clause or in a submission agreement, may
request the court to refer to the arbitration in accordance with such agreement
(Rule 4.1).

Q: When should the request for referral be made?

ANS: Where the arbitration agreement exists before the action is filed, the request
for referral shall be made not later than the pre-trial conference. After the pre-trial
conference, the court will only act upon the request for referral if it is made with the
agreement of all parties to the case.

If there is no existing arbitration agreement at the time the case is filed but the
parties subsequently enter into an arbitration agreement, they may request the
court to refer their dispute to arbitration at any time during the proceedings (Rule
4.2).

54
 Q: Is judicial relief available?
ANS: Judicial relief before commencement of arbitration may be availed to
determine any question concerning the existence, validity and enforceability of such
arbitration agreement (Rule 3.2).

After arbitration commences, any party to arbitration may also petition the
appropriate court for judicial relief from the ruling of the arbitral tribunal on a
preliminary question upholding or declining its jurisdiction (Rule 3.12).

The judicial relief, whether resorted to before or after the commencement of

arbitration, shall apply only when the place of the arbitration is in the Philippines
(Rule 4.1).

X. INTERVENTION
Q: State the nature of an intervention.
ANS: Intervention is a remedy by which a third party, not originally impleaded in a
proceeding, becomes a litigant therein to enable him to protect or preserve a right
or interest which may be affected by such proceeding (First Philippine Holdings
Corp. v. Sandiganbayan, G.R. No. 88345, February 1, 1996).

Q: What is the purpose of an intervention?

ANS: The purpose of an intervention is to settle in one action and by a single
judgment, the whole controversy (among) the persons involved (Francisco, Revised
Rules of Court, 1973 ed., p. 720).

A.REQUISITES FOR INTERVENTION

Q: What are the requisites for an intervention by a non-party in an action
pending in court?
ANS: The requisites for intervention are the following:
a. There must be a motion for intervention filed before rendition of judgment
by the trial court;
b. The movant must show that he:
i. Has a legal interest in the matter in litigation; or
ii. Has a legal interest in the success of either party; or
iii. Has a legal interest against both of them; or
iv. Is so situated that he will be adversely affected by a distribution or other
disposition of property in the custody of the court or an officer thereof;
c. The intervention must not unduly delay or prejudice the adjudication of the
rights of the original parties;
d. The intervenor’s rights may not be fully protected in a separate proceeding
(Sec. 1, Rule 19; Mabayo Farms, Inc. v. Court of Appeals, G.R. No.
140058, August 1, 2002).
e. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties (Sec. 2, Rule 19).

B.TIME TO INTERVENE
Q: Within what period may a person intervene in a case?
ANS: The motion to intervene may be filed at any time before rendition of judgment
by the trial court (Sec. 2, Rule 19).

Q: May intervention be allowed after rendition of judgment by the court?

55
 ANS: As a general rule, no. Under the rules, the motion to intervene may be filed at
any time before rendition of judgment by the trial court. However, the Supreme
Court has recognized the following exceptions:
a. Intervention may be allowed on appeal, provided the intervenor is an
indispensable party (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13,
1952);
b. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, January
27, 1995).
c. Where is it necessary to protect some interest which cannot be protected, or to
preserve the intervenor’s right to appeal (Herrera, p.847).

C.REMEDY FOR THE DENIAL OF MOTION TO INTERVENE

Q: What is the remedy if intervention is denied?
ANS: The remedy of the aggrieved party is appeal. Mandamus will not lie except in
case of grave abuse of discretion (Albano, p. 353).

XI. SUBPOENA
A.SUBPOENA DUCES TECUM
Q: What is a subpoena duces tecum?
ANS: It is a process directed to a person requiring him to bring with him books,
documents, or other things under his control (Sec. 1, Rule 21).

B.SUBPOENA AD TESTIFICANDUM
Q: What is a subpoena ad testificandum?
ANS: It is a process directed to a person requiring him to attend and to testify:
a. At the hearing or the trial of an action; or
b. At any investigation conducted by competent authority; or
c. For the taking of his deposition (Sec. 1, Rule 21).

C.SERVICE OF SUBPOENA
Q: How shall a subpoena be served?
ANS: Service of subpoena shall be made in the same manner as personal or
substituted service of summons.
a. The original shall be exhibited and a copy thereof be delivered to the person on
whom it is served;
b. Tendering to him the fees for one day’s attendance and the kilometrage allowed
by the Rules; except that, when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof, the tender need not be
made;
c. The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance; and
d. If the subpoena is duces tecum, the reasonable cost of producing the books,
documents, or things demanded shall also be tendered (Sec. 6, Rule 21).

D.COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT

Q: What may the court do in case of failure of a witness to appear after
service of subpoena?
ANS: The court, upon showing of the failure of the witness to attend and upon proof
of the service of the subpoena, may issue a warrant to arrest the witness and bring
him before the court or officer where his attendance is required. The cost of such
warrant and seizure shall be paid by the witness if the court finds that his failure to
answer the subpoena was willful and without just excuse (Sec. 8, Rule 21).

56
 Q: What is the effect if a person fails to obey a subpoena without adequate
cause?
ANS: Failure to obey a subpoena without adequate cause shall be deemed a
contempt of the issuing court. If the subpoena was not issued by a court, the
disobedience shall be punished in accordance with the applicable law or Rule (Sec.
9, Rule 21).

Q: When is a witness not bound by a subpoena?

ANS: A witness is not bound to attend as such in the following situations:
a. Where the witness resides more than 100 kilometers from his residence to
the place where he is to testify by the ordinary course of travel (Viatory
Right; Sec. 10, Rule 21); and
b. In case of a detention prisoner, where no permission of the court in which
his case is pending was obtained (Sec. 10, Rule 21).

Q: In an admiralty case filed by A against Y Shipping Lines (whose principal

offices are in Manila) in the RTC, Davao City, the court issued a subpoena
duces tecum directing Y, the president of the shipping company, to appear
and testify at the trial and to bring with him several documents.
a. On what valid ground can Y refuse to comply with the subpoena duces
tecum?
b. How can A take the testimony of Y and present the documents as exhibits
other than through the subpoena from the RTC? (1997 Bar)
ANS:
a. Y can refuse to comply with the subpoena duces tecum on the ground that he
resides more than 100 kilometers from the place where he is to testify by the
ordinary course of travel (Sec. 10, Rule 21).
b. A can take the testimony of Y and present the documents as exhibits through the
use of a deposition (Rule 23) or written interrogatories (Rule 25) or by filing a
motion for the production or inspection of documents (Rule 27).

E.QUASHING OF SUBPOENA
Q: When may the court quash a subpoena duces tecum?
ANS: A subpoena duces tecum may be quashed upon motion promptly made and,
in any event, before the time specified therein. It must be shown that:
a. It is unreasonable and oppressive; or
b. The relevancy of the books, documents or things does not appear; or
c. If the person in whose behalf the subpoena is issued failed to advance the
reasonable cost of the production thereof (Sec. 4 [a], Rule 21); or
d. The witness fees and kilometrage allowed by the Rules were not tendered when
the subpoena was served (Sec. 4 [b], Rule 21).

Q: When may the court quash a subpoena ad testificandum?

ANS: A subpoena ad testificandum may be quashed upon showing that:
a. The witness is not bound thereby; or
b. The witness fees and kilometrage allowed by the Rules were not tendered
when the subpoena was served (Sec. 4 [b], Rule 21).

XII. MODES OF DISCOVERY

Q: Define discovery.
ANS: A discovery is the disclosure of facts disclosure of facts resting in the
knowledge of the defendant, or as the production of deeds, writings, or things in his

57
 possession or power, in order to maintain the right or title of the party asking it, in a
suit or proceeding (Insular Life Assurance Co. v. Court of Appeals, G.R. No. 97654,
November 14, 1994).

Q: State the purpose of discovery.

ANS: The modes of discovery are meant to serve as a device, along with the pre-
trial, to narrow and clarify the basic issues between the parties, for ascertaining the
facts relative to those issues, and to enable parties to obtain the fullest possible
knowledge of the issues and facts before trials and thus prevent that said trials are
carried on in the dark (Republic of the Philippines v. Sandiganbayan, G.R. No.
90478, November 21, 1991).

A.DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR

PENDING APPEAL

Meaning of Deposition
Q: What is a deposition?
ANS: A deposition is a written testimony of a witness given in the course of a
judicial proceeding, in advance of the trial or hearing, upon oral examination or in
response to written interrogatories, and where an opportunity is given for cross-
examination (16 Am. Jur. 699).

Q: When may a deposition be availed of?

ANS: A deposition may be taken:
a. During a pending action (Deposition de bene esse; Sec. 1, Rule 23);
b. Before action or pending appeal (Deposition in perpetua rei memoriam;
Rule 24).

Q: When may a party take a deposition pending action?

ANS: A party may take the deposition of another under the following
circumstances:
a. By leave of court, after jurisdiction has been obtained over any defendant or over
property which is the subject of the action; or
b. Without leave of court after an answer has been served; or
c. By leave of court when the deposition of a person confined in prison is to be
taken (Sec. 1, Rule 23).

Q: State the concept of a deposition before action or pending appeal.

ANS: A deposition before action and a deposition pending appeal are referred to as
“perpetuation of testimony” or perpetua rei memoriam because their objective is to
perpetuate the testimony of a witness for use in the future (Riano, Fundamentals of
Civil Procedure, 2005 ed., p.550).

Uses; Scope of Examination

Q: Where may a deposition be used?
ANS: It may be used either:
a. At the trial; or
b. At the hearing of a motion; or
c. At the hearing of an interlocutory proceeding (Sec. 4, Rule 23).

Q: Give an outline showing how a deposition may be used.

58
 ANS: A deposition may be used against any party who was present or represented
at the taking of the deposition or who had due notice thereof, according to the
following:
a. For the purpose of contradicting or impeaching the testimony of the deponent as
witness;
b. The deposition of a party or of any one, who at the time of the deposition, was an
officer, director, or managing agent of a public or private corporation, partnership
or association which is a party may be used by an adverse party for any purpose.
c. The deposition of a witness, whether or not a party, may be used by any part for
any purpose if the court finds that:
i. The witness is dead; or
ii. The witness resides more than 100 km. from the place of trial, or is out of the
Philippines, unless such absence was procured by the party offering the
deposition; or
iii. The witness is unable to testify due to age, sickness, infirmity or imprisonment;
or
iv. The party offering the deposition has been unable to procure the attendance
of the witness by subpoena; or
v. Upon application and notice, that such exceptional circumstances exist as to
make it desirable in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used.
d. If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts (Sec. 4, Rule 23).

Q: What may be covered by a deposition?

ANS: A deponent may be examined regarding any matter which is:
a. Relevant to the subject of the pending action;
b. Not privileged (Sec. 2, Rule 23); and
c. Not restricted by an order of the court to protect the parties and deponents
or to limit the examination (Secs. 16 and 18, Rule 23).

When may Objections to Admissibility be Made

Q: When may a party interpose his objections to the admissibility of a
deposition?
ANS: Objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the
evidence if the witnesses were then present and testifying (Sec. 6, Rule 23).

When may taking of Deposition be Terminated or its Scope Limited

Q: When may the court terminate or limit the taking of a deposition?
ANS: At any time during the taking of the deposition, any party or the deponent
may move for the termination or limiting of the scope of the deposition upon
showing:
a. That the examination is being conducted in bad faith; or
b. That it is being conducted in such a manner as unreasonably to annoy,
embarrass or oppress the deponent or party (Sec. 18, Rule 23).

B.WRITTEN INTERROGATORIES TO ADVERSE PARTIES

Q: State the purpose of written interrogatories.
ANS: This type of discovery is availed of by a party to the action for the purpose of
eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25).

59
 Q: When may a party serve written interrogatories upon an adverse party?
ANS: A party may serve written interrogatories upon an adverse party:
a. By leave of court after jurisdiction has been obtained over the defendant or
over property which is the subject of the action; or
b. Without leave of court after an answer has been served (Sec. 1, Rule 25 in
relation to Sec. 1, Rule 23).

Consequences of Refusal to Answer

Q: What are the consequences of refusal to answer written interrogatories?
ANS: The party who fails to serve his answer to written interrogatories may be the
subject of a judgment by default (Cason v. San Pedro, G.R. L-18929, December 28,
1962; Sec. 3 [c], Rule 29);

Effect of Failure to Serve Written Interrogatories

Q. State the effect if a party is not served with written interrogatories.
ANS: Unless 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:
a. To give testimony in open court; or
b. Give a deposition pending appeal (Sec. 6, Rule 25).

C.REQUEST FOR ADMISSION

Q: What is the purpose of a request for admission?
ANS: The purpose of a request for admission is to expedite trial and relieve parties
of the cost of proving facts which will not be disputed on trial and the truth of which
can be ascertained by reasonable inquiry (Congrete Aggregate Corp. v. Court of
Appeals, et al., G.R. No. 117574, January 2, 1997).

Q: State the facts which an adverse party may be required to admit in a

request for admission.
ANS: The admission may cover:
a. The genuineness of any material and relevant document described in and
exhibited with the request; or
b. The truth of any material and relevant matter of fact set forth in the request
(Sec. 1, Rule 26).

Q: When may a party serve upon the adverse party a written request for
admission?
ANS: A written request for admission may be served upon the other party at any
time after the issues have been joined (Sec. 1, Rule 26).

Implied Admission by Adverse Party

Q: When is there an implied admission by an adverse party?
ANS: When the adverse party is silent on the plaintiff‘s request for admission, he is
deemed to have impliedly admitted the facts set forth therein (Herrera, Remedial
Law Vol. II, 2007 ed., p. 56).

Consequences of Failure to Answer the Request for Admission

Q: Suppose a party fails to answer the request for admission, what would be
the effect?
ANS: Each of the matters of which an admission is requested shall be deemed
admitted unless the party to whom the request is directed files and serves upon the

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 party requesting the admission a sworn statement either denying specifically the
matters of which an admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters (Sec. 2, Rule 26).

Effect of Admission
Q: What is the effect of an admission?
ANS: Any admission made pursuant to the request for admission shall be for the
purpose of the pending action only and cannot be used as such for any other
purpose nor may the admission be used against the admitting party in any other
proceeding (Sec. 3, Rule 26).

Effect of Failure to File and Serve Request for Admission

Q: State the effect of failure to file and serve a request for admission.
ANS: Unless otherwise allowed by the court for good cause shown and to prevent a
failure of justice, a party who fails to file and serve a request for admission on the
adverse party of material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be permitted to present
evidence on such facts (Sec. 5, Rule 26).

D.PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Q. What are the requirements for the production or inspection of documents
or things pursuant to Rule 27 of the Rules of Court?
ANS: The following are the requirements:
a. A motion must be filed by a party showing good cause therefor;
b. Notice of the motion must be given to all other parties;
c. The motion must sufficiently describe the document or thing sought to be
produced or inspected;
d. The document or thing sought to be produced or inspected must constitute
or contain evidence material to the pending action;
e. Documents or things subject of the motion should not be privileged;
f. The documents or things must be within the possession, control, or
custody of a party; and
g. The Rule only applies to a pending action (Sec. 1, Rule 27).

E.PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Q: Give requisites to obtain an order of physical and mental examination of
persons pursuant to Rule 28 of the Rules of Court.
ANS: The following are the requisites to obtain an order for examination:
a. The mental or physical condition of a party is in controversy in the action;
b. A motion showing good cause must be filed for the physical and mental
examination;
c. Notice must be given to the party to be examined and to all other parties;
and
d. The motion shall specify the time, place, manner, conditions, and scope of
the examination and the person or persons by whom it is made (Secs. 1
and 2, Rule 28).

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F.CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Q: State the consequences of refusal to make discovery.
ANS:
Refusal to Comply
with Modes of Sanctions
Discovery
1. The examining party may complete the examination on
the other matters or adjourn the same (Sec. 1, Rule
29).
2. The court, may, upon proper application, compel a
refusing deponent to answer.
a. If application is granted and refusal to answer is
without substantial justification, court may require
the refusing party to pay the proponent the amount
Refusal to answer any
of the reasonable expenses incurred in obtaining the
question upon oral
order, including attorney's fees.
examination or any
b. If the application is denied and filed without
written interrogatory
substantial justification, court may require the
proponent, or his counsel, or both of them, to pay
the refusing party the amount of the reasonable
expenses incurred in obtaining the order, including
attorney's fees (Sec.1, Rule 29).
3. A refusal to answer after being directed by the court to
do so may be considered as contempt of court (Sec. 2,
Rule 29).
Cite the disobedient deponent in contempt of court (Sec.
Refusal to be sworn
2, Rule 29).
The court may make the following orders:
1. That the facts sought to be established by the
examining party shall be taken to be established for
the purpose of the action in accordance with the claim
Refusal to answer of the party obtaining the order;
designated questions; 2. Refusal to allow the disobedient party to support or
or oppose designated claims or defenses or prohibiting
him from introducing in evidence designated
Refusal to produce documents or things or items of testimony;
documents; or 3. The striking out of pleadings or party thereof;
4. That further proceedings be stayed until the order is
Refusal to submit to obeyed;
physical or mental 5. Dismissal of the action or proceeding or any party
examination thereof, or rendition of judgment by default against the
disobedient party;
6. The arrest of any party or agent of a party for
disobeying its orders, except an order to submit a
physical or mental examination (Sec. 3, Rule 29).
Refusal to Admit or If the party requesting the admissions thereafter proves
serves a sworn denial the genuineness of such document or the truth of any
thereof under Rule 26 such matter of fact, the court may, upon proper
application, issue an order requiring the other party to
pay him reasonable expenses incurred in making such
proof, including attorney's fees (Sec. 4, Rule 29).

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 Failure of Party to The court, on motion and notice, may:
attend or serve 1. Strike out all or any part of any pleading of disobedient
answers to written party or;
interrogatories 2. Dismiss the action or proceeding or any part thereof
or;
3. Enter a judgment by default against disobedient party;
and
4. In its discretion, order payment of reasonable
expenses incurred by the other including attorney's
fees.

XIII. TRIAL
Q: What is a trial?
ANS: Trial is an examination before a competent tribunal of the facts or law put in
issue in a case, for the purpose of determining the issue (Ballentine’s Law
Dictionary, 2nd ed., p.1299).

A.ADJOURNMENTS AND POSTPONEMENTS

Q: State the rule on adjournments and postponements of trial.
ANS: The general rule is that a court may adjourn a trial from day to day and to any
stated time as the expeditious and convenient transaction of business may require.
However, except when authorized in writing by the Court Administrator, the court
has no power to adjourn a trial for:
a. A period longer than 1 month for each adjournment; or
b. More than 3 months in all (Sec. 2, Rule 30).

B.REQUISITES OF MOTION TO POSTPONE TRIAL

For Absence of Evidence

Q: What are the requisites of a motion to postpone trial on the ground of
absence of evidence?
ANS: The requisites are the following:
a. A motion for postponement stating the ground relied upon must be filed;
b. The motion must be supported by an affidavit showing:
i. The materiality and relevancy of such evidence; and
ii. That due diligence has been used to procure it (Sec. 3, Rule 30).

Q: State the requisites of a motion to postpone trial on the ground of illness.

ANS: The requisites are the following:
a. A motion for postponement stating the ground relied upon must be filed;
b. The motion must be supported by an affidavit or sworn certification
showing that:
i. The presence of such party or counsel at the trial is indispensable; and
ii. The character of the illness is such as to render his non-attendance as
excusable.

Q: Is a motion for postponement a matter of right?

ANS: No. A motion for postponement is not a matter of right. It is addressed to the
sound discretion of the court (Garces v. Valenzuela, G.R. No. L-55226, February
28, 1989).

C.AGREED STATEMENT OF FACTS

Q: May the parties agree on the facts involved in the action?

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 ANS: Yes. The parties to any action may agree, in writing, upon the facts involved
in the litigation, and submit the case for judgment on the facts agreed upon, without
the introduction of evidence. No trial shall thus be held. If the parties agree to only
some facts in issue trial shall be held as to the disputed facts in such order as the
court shall prescribe (Sec. 6, Rule 30).

D.ORDER OF TRIAL; REVERSAL OF ORDER

Q: State the order of trial of civil actions.
ANS: Subject to provisions on separate trials and unless the court for special
reasons otherwise directs, the trial shall proceed as follows:
a. The plaintiff shall adduce evidence in support of his complaint;
b. The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaint.
c. The third-party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
d. The fourth-party and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
e. The parties against whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense, in the order to be prescribed
by the court;
f. The parties may then respectively adduce rebutting evidence only, unless the
court for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case; and
g. Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective
memoranda or any further pleadings.

NOTE: If several defendants or third-party defendants, and so forth, having

separate defenses appear by different counsel, the court shall determine the
relative order of presentation of their evidence (Sec. 5, Rule 30).

Q: When shall a reverse order of trial take place?

ANS: Where the defendant, in his answer, relies upon an affirmative defense, a
reverse order of trial shall take place. In this situation, the defendant presents
evidence ahead of the plaintiff. The plaintiff need not present evidence since judicial
admissions do not require proof (Sec. 4, Rule 129).

E.CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL

Q: When is consolidation of actions proper?
ANS: Consolidation of actions is proper:
a. When two or more cases involve a common question of law or facts; and
b. The said cases are pending before the same court (Sec. 1, Rule 31).

Q: State the different modes of consolidating cases.

ANS: The modes are the following:
a. Recasting the cases already instituted, conducting only one hearing and
rendering only one decision;
b. Consolidating the existing cases, conducting only one hearing and
rendering only one decision; and
c. Without recasting or consolidating the cases, the principal case is heard,
the hearing on the others being suspended until judgment has been
rendered in the first case (Salazar v. CFI of Laguna, G.R. No. 45642,
September 25, 1937).

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 Q: When may the court order a separate trial of any claim?
ANS: The court may order a separate trial of any claim, cross-claim, counterclaim
or third-party complaint in furtherance of convenience or to avoid prejudice. In
severance, there is one case with several claims (Sec. 2, Rule 31).

F.DELEGATION OF RECEPTION OF EVIDENCE

Q: Under what circumstances may the judge delegate the reception of
evidence?
ANS: Reception of evidence may be delegated under the following conditions:
a. The delegation may be made only in default or ex parte hearings, and in
any case where the parties agree in writing;
b. The reception of evidence shall be made only by the clerk of that court who
is a member of the bar;
c. Said clerk shall have no power to rule on objections to any question or to
the admission of exhibits; and
d. The clerk shall submit a report and transcripts of the proceedings, together
with the objections to be resolved by the court, within 10 days from the
termination of the hearing (Sec. 9, Rule 30).

G.TRIAL BY COMMISSIONERS

Reference by Consent or Ordered on Motion

Q: Under what circumstances may there be a trial by commissioner?
ANS: Trial by commissioner may be conducted under the following circumstances:
a. Reference by Consent – When both parties agree in writing to have the case
referred to a commissioner (Sec. 1, Rule 32); or
b. Reference Ordered on Motion – When the court, on its own motion or on motion
of either party, directs a reference to the commissioner in the following cases:
i. When the trial of an issue of fact requires the examination of a long account;
ii. When the taking of an account is necessary for the information of the court
before judgment or in carrying it out; or
iii. When a question of fact, other than upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for carrying a judgment or order into effect
(Sec. 2, Rule 32).

Powers of the Commissioner

Q: What powers may the commissioner exercise?
ANS: The commissioner has and shall exercise the power:
a. To regulate the proceedings in every hearing before him;
b. To do all acts and take all measure necessary or proper for the efficient
performance of his duties;
c. To issue subpoenas and subpoenas duces tecum;
d. To swear witnesses; and
e. To rule upon the admissibility of evidence.

However, such powers are subject to the specifications and limitations stated in the
order of reference which is furnished to the commissioner. The order may:
a. Direct him to report only upon particular issues;
b. Direct him to or perform particular acts;
c. Direct him to receive and report evidence only; and
d. Fix the date for beginning and closing the hearings and for the filing of his report
(Sec. 3, Rule 32).

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 Commissioner’s Report; Notice to Parties and Hearing on the Report
Q: Within what time shall the commissioner file his report?
ANS: Upon completion of the trial, hearing or proceeding before the commissioner,
he shall file with the court his report in writing upon the matters submitted to him by
the order of reference. When his powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his report. All exhibits, affidavits,
depositions, papers and the transcript, if any, of the testimonial evidence presented
before him shall be attached to the report (Sec. 9, Rule 32).

Q: May a party object to the commissioner’s report?

ANS: Yes. Upon filing of the report, parties shall be notified by the clerk and they
shall be allowed 10 days within which to signify grounds of objections to the findings
of the report. Objections based on grounds which were available during the
proceedings other than those to the findings and conclusions shall not be
considered by the court unless they were made before the commissioner (Sec. 10,
Rule 32).

Q: What shall the court consider during the hearing on the commissioner’s
report?
ANS: When the reports come up for confirmation, the court cannot be expected to
re-hear the case upon the entire record, but will review only so much as may be
drawn in question by proper objections (Kreidt v. McCullough and Co., G.R. No. L-
11362, January 24, 1918). After the hearing, the court shall issue an order
adopting, modifying or rejecting the report in whole or in part or recommit it to the
commissioner or the court (Sec. 11, Rule 32).

XIV. DEMURRER TO EVIDENCE

Q: What is meant by demurrer to evidence?
ANS: A demurrer to evidence is a motion to dismiss on the ground of insufficiency
of evidence and is presented after the plaintiff rests his case (Regalado, Remedial
Law Compendium, 2010 ed., p. 400).

A.GROUND
Q: On what ground may a demurrer to evidence be filed?
ANS: After plaintiff has finished presenting his evidence, the defendant may move
for the dismissal of the complaint on the ground that upon the facts and the law, the
plaintiff has shown no right to relief or insufficiency of evidence (Sec. 1, Rule 33).

B.EFFECT OF DENIAL
Q: Give the effect of a denial of the demurrer to evidence.
ANS: The defendant shall have the right to present his evidence. Such denial of the
demurrer to evidence does not deprive the defendant of the right to adduce
evidence on his behalf (Sec. 1, Rule 33).

C.EFFECT OF GRANT
Q: What is the effect of granting the demurrer to evidence?
ANS: The case shall be dismissed. A demurrer to evidence is an instrument for the
expeditious termination of an action, thus, abbreviating judicial proceedings (Heirs
of Pedro Pasag, et al. v. Sps. Parocha, et al., G.R. No. 155483, April 27, 2007).

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D.WAIVER OF RIGHT TO PRESENT EVIDENCE
Q: When is there a waiver of the right to present evidence?
ANS: If the defendant’s motion for judgment on demurrer to evidence is granted
and the order is subsequently reversed on appeal, the defendant shall be deemed
to have waived his right to present evidence (Sec. 1, Rule 33). The appellate court
cannot remand the case for further proceedings; rather it should render judgment
on the basis of the evidence presented by the plaintiff (Radiowealth Finance Co. v.
Sps. Del Rosario, G.R. No. 138739, July 26, 2000).

Q: Compare the effect of a reversal of an order granting a demurrer to

evidence to that of an order of default.
ANS: In an order reversing the grant of a demurrer to evidence, the appellate court
should render judgment on the basis of the evidence presented by the plaintiff, and
this includes unliquidated damages proven during the trial. In an order of default,
the court cannot award unliquidated damages, because of the absence of a trial
where the same may be proved (Sec. 3 [d], Rule 9).

Q: Carlos filed a complaint against Pedro in the RTC of Ozamis City for the
recovery of the ownership of a car. Pedro filed his answer within the
reglementary period. After the pre-trial and actual trial, and after Carlos has
completed the presentation of his evidence, Pedro moved for the dismissal of
the complaint on the ground that under the facts proven and the law
applicable to the case, Carlos is not entitled to the ownership of the car. The
RTC granted the motion for dismissal. Carlos appealed the order of dismissal
and the appellate court reversed the order of the trial court. Thereafter, Pedro
filed a motion with the RTC asking the latter to allow him to present his
evidence. Carlos objected to the presentation of evidence by Pedro. Should
the RTC grant Pedro’s motion to present his evidence? Why? (2001 Bar)
ANS: Pedro’s motion should be denied. Under the Rules, if the motion for dismissal
is granted but on appeal the order of dismissal is reversed, the defendant shall be
deemed to have waived the right to present evidence (Sec. 1, Rule 33; Answers to
the Bar Examination Questions by the UP Law Complex and Philippine Law
Schools Association 2006).

E.DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO

EVIDENCE IN A CRIMINAL CASE
Q: Compare the effects of the filing of demurrer to evidence in a civil case
with those of the filing of demurrer to evidence in a criminal case.
ANS: The differences are the following:
a. As to whether leave of court is required – In civil cases, the defendant need
not ask for a leave of court before he files a demurrer to evidence, while in
criminal cases, a demurrer may be filed with or without leave of court.
b. As to the effect of a finding of insufficiency – In a civil case, the court will
grant the demurrer by dismissing the complaint, while in a criminal case the
court will grant the demurrer by rendering judgment acquitting the accused.
c. As to the effect of the grant of the demurrer – In a civil case, the order or
dismissal of the complaint is appealable. In a criminal case, the granting of
the demurrer results in the acquittal of the accused. An acquittal is not
appealable under the principle of double jeopardy.
d. As to the effect of denial of the demurrer – In a civil case, if the demurrer is
denied, the defendant will proceed to present his evidence. In a criminal
case, the defendant may adduce his evidence in his defense if his
demurrer was filed with leave of court. If the demurrer was filed without

67
 leave of court, he is not allowed to present his evidence because he is
deemed to have waived his right to present his evidence and he submits
the case for judgment on the basis of the evidence of the prosecution (Sec.
23, Rule 119).

XV. JUDGMENTS AND FINAL ORDERS

Q: What is a judgment?
ANS: A judgment is the final consideration and determination of a court of
competent jurisdiction upon the matters submitted to it in an action or proceeding
(Gotamco v. Chan Seng, G.R. No. L-22737, November 28, 1924).

Q: Enumerate the special forms of judgments.

ANS: The special forms of judgments under the Rules of Court and jurisprudence
are the following:
a. Judgment upon the merits – A judgment is on the merits when it determines the
rights and liabilities of the parties based on the ultimate facts as disclosed by the
pleadings or issues presented for trial (Republic of the Philippines v. Court of
Appeals, G.R. No. 103412, February 3, 2000);
b. Judgment by default – It is one rendered by the court after a defendant has been
declared in default for failure to file an answer within the time required (Sec. 3,
Rule 9);
c. Judgment on the pleadings – It is one rendered by the court if the answer fails to
tender an issue, or otherwise admits the material allegations of the adverse
party’s pleading (Sec. 1, Rule 34);
d. Summary judgment – It is one granted by the court upon motion by either party, if
it appears from the pleadings, depositions and affidavits that there are no
genuine issues as to any pertinent facts hence, no serious controversy (Rule 35;
Raboca v. Velez, A.M. No. RTJ-99-1469, October 2, 2000);
e. Several judgment – It is one rendered by a court against one or more defendants
and not against all of them, leaving the action to proceed against the others (Sec.
4, Rule 36);
f. Separate judgment – It is a judgment rendered disposing of a claim among
several others presented in a case, after a determination of the issues material to
a particular claim and all counterclaims arising out of the transaction or
occurrence which is the subject matter of said claim (Sec. 5, Rule 36);
g. Judgment for specific acts – It is a judgment applicable in cases of:
i. Conveyance, delivery of deeds, or other specific acts;
ii. Sale of real or personal property;
iii. Delivery or restitution of real property;
iv.Removal of improvements on property subject of execution;
v. Delivery of personal property (Sec. 10, Rule 39);
h. Special judgment – It is a judgment which can only be complied with by the
judgment obligor because of his personal qualifications or circumstances or one
that requires the performance of an act other than:
i. Payment of money; and
ii. Sale of real and personal property (Sec. 1, Rule 39);
i. Judgment upon confession – It is one rendered by the court when a party
expressly agrees to the other party’s claim or acknowledges the validity of the
claim against him (Natividad v. Natividad, G.R. No. L-28296,March 2, 1928);
j. Judgment upon compromise – It is one rendered by the court on the basis of a
compromise agreement entered into between the parties (Riano, Fundamentals
of Civil Procedure, 2005 ed., p. 592);

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 k. Clarificatory judgment – It is one rendered to clarify an ambiguous judgment or
one difficult to comply with (Almendras v. Del Rosario, G.R. No. L-20158,
October 14, 1968);
i. Judgment nunc pro tunc (literally, now for then) – It is a judgment intended to
enter into the record the acts which had already been done, but which do not
appear in the records (Lichauco v. Tan Pho, G.R. No. L-19512, November 21,
1923);
ii. Judgment sin perjuicio – It is a judgment without a statement of the facts in
support of its conclusion to be later supplemented by the final judgment (Dizon
v. Lopez, A.M. No. RTJ-96-1338, September 5, 1997).
iii. Judgment on demurrer to evidence – It is a judgment rendered by the court
dismissing a case upon motion of the defendant, on the ground that upon the
facts presented by the plaintiff and the law on the matter, the plaintiff has not
shown any right to relief (Rule 33);
iv. Conditional judgment – It is one the effectivity of which depends upon the
occurrence or the non-occurrence of an event. Such judgment is generally void
because of the absence of any disposition (Cu Unjieng E. Hijos v. The
Mabalacat Sugar Co., G.R. No. 45351, June 29, 1940);
v. Final judgment – It is one which disposes of a case in a manner that leaves
nothing more to be done by the court in respect thereto (Investments, Inc. v.
CA, G. R. No. L-60036, January 27, 1987), or one that is no longer appealable
and is already capable of being executed because the period for appeal has
elapsed without a party having perfected an appeal (Riano, Fundamentals of
Civil Procedure, 2005 ed., p.600).

A.JUDGMENT WITHOUT TRIAL

Q: Give the concept of a judgment without trial.
ANS: The theory of summary judgment is that although an answer may on its face
appear to tender issues—requiring trial—yet if it is demonstrated by affidavits,
depositions, or admissions that those issues are not genuine, but sham or fictitious,
the court is justified in dispensing with the trial and rendering summary judgment for
plaintiff (Carcon Dev’t. Corp. v. Court of Appeals, G.R. No. 88218, December 17,
1989).

B.CONTENTS OF A JUDGMENT
Q: What are the parts of a judgment?
ANS: The judgment shall have the following parts:
a. The opinion of the court or the ratio decidendi – Contains the findings of
facts and conclusions of law;
b. The disposition of the case or the fallo – The final and actual disposition of
the rights litigated (the dispositive part); and
c. Signature of the judge (Herrera, p.155).

Q: If there is a conflict between the ratio decidendi and the fallo, which should
prevail?
ANS: The fallo controls. This rule rests on the theory that the fallo is the final order
while the opinion in the body is merely a statement ordering nothing. The rule
applies when the dispositive part of a final decision or order is definite, clear, and
unequivocal, and can wholly be given effect without need of interpretation or
construction (Obra v. Sps. Badua, et al., G.R. No. 149125, August 9, 2007).

C.JUDGMENT ON THE PLEADINGS

Q: When may a party file a motion for judgment on the pleadings?

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 ANS: 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, direct
judgment on such pleading (Sec. 1, Rule 34).

Q: What is meant by “an answer fails to tender an issue”?

ANS: An answer fails to tender an issue if it does not deny the material allegations
in the complaint or admits said material allegations of the adverse party’s pleadings
by confessing the truthfulness thereof and/or omitting to deal with them at all (Tan v.
De la Vega, G.R. No. 168809, March 10, 2006).

Q: When is judgment on the pleadings not applicable?

ANS: The following actions cannot be the subject of a judgment on the pleadings as
the material facts alleged in the complaint shall always be proved:
a. In actions for declaration of nullity or annulment of marriage or for legal
separation (Sec. 1, Rule 34);
b. Unliquidated damages (Albano, Remedial Law Reviewer, 2010 ed., p.409);
c. Admission of the truth of allegations of the adverse party (Ibid.).

Q: In a complaint for recovery of real property, the plaintiff averred, among

others, that he is the owner of the said property by virtue of a deed of sale
executed by the defendant in his favor. Copy of the deed of sale was
appended to the complaint as Annex "A" thereof. In his unverified answer, the
defendant denied the allegation concerning the sale of the property in
question, as well as the appended deed of sale, for lack of knowledge or
information sufficient to form a belief as to the truth thereof. Is it proper for
the court to render judgment without trial? Explain. (2005 Bar)
ANS: Yes. The defendant cannot deny the sale of the property for lack of
knowledge or information sufficient to form a belief as to the truth thereof. Such
denial amounts to an admission. A mere allegation of ignorance of the facts alleged
in the complaint is insufficient to raise an issue, for the defendant must aver
positively or state how it is that he is ignorant of the facts so alleged (Phil.
Advertising Counselors, Inc. v. Revilla, G.R. No. L-31869, August 8, 1973). As to
the deed of sale, its genuineness and due execution must be denied under oath
and failure to do so amounts to an admission of the deed (Sec. 8, Rule 8). Hence, it
was proper for the court to render judgment without trial (Answers to the Bar
Examination Questions by the UP Law Complex and Philippine Law Schools
Association 2006).

D.SUMMARY JUDGMENTS
Q: What do you understand by a Summary Judgment?
ANS: A summary judgment, or accelerated judgment, is a procedural technique to
promptly dispose of cases where the facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits on record, or for weeding out
sham claims or defenses at an early stage of the litigation to avoid the expense and
loss of time involved in a trial (Monterey Foods Corp., et al. v. Eserjose, G.R. No.
153126, September 11, 2003).

Q: Give the requisites of a summary judgment.

ANS: The following are the requisites for a summary judgment to be proper:
a. There must be no genuine issue as to any material fact; and
b. That the moving party is entitled to a judgment as a matter of law (Sec. 3,
Rule 35).

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Q: What is a genuine issue?
ANS: A genuine issue is an issue of fact which calls for the presentation of
evidence, as distinguished from an issue which is sham, fictitious, contrived and
patently unsubstantial so as not to constitute a genuine issue for trial (Ley
Construction and Dev’t Corp. v. Union Bank of the Phil., G.R. No. 133801, June 27,
2000).

For the Claimant

Q: When may a claimant file a motion for a summary judgment?
ANS: 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 for summary judgment upon all or any part thereof (Sec. 1, Rule
35).

For the Defendant

Q: When may a defendant file a motion for a summary judgment?
ANS: A party against whom a claim, counterclaim or cross-claim is asserted or a
declaratory relief is sought may, at any time, move for a summary judgment in his
favor as to all or any part thereof (Sec. 2, Rule 35).

When the Case not Fully Adjudicated

Q: May there be partial summary judgment?
ANS: Yes. If judgment is not rendered upon the whole case, the court shall
ascertain what material facts exist without substantial controversy and those that
are controverted. The court shall then render a partial judgment with trial to proceed
on the matters that remain controverted (Sec. 4, Rule 35).

Q: After defendant has served and filed his answer to plaintiff’s complaint for
damages before the proper RTC, plaintiff served and filed a motion (with
supporting affidavits) for a summary judgment in his favor upon all of his
claims. Defendant served and filed his opposition (with supporting affidavits)
to the motion. After due hearing, the court issued an order (1) stating that the
court has found no genuine issue as to any material fact and thus concluded
that plaintiff is entitled to judgment in his favor as a matter of law except as to
the amount of damages recoverable, and (2) accordingly ordering that
plaintiff shall have judgment summarily against defendant for such amount
as may be found due plaintiff for damages, to be ascertained by trial on
October 7, 2004, at 8:30 o'clock in the morning. May defendant properly take
an appeal from said order? Or, may defendant properly challenge said order
thru a special civil action for certiorari? Reason. (2004 Bar)
ANS: No, defendant may not appeal from said order because it is a partial
summary judgment. Such judgment is merely interlocutory and not a final judgment
(Province of Pangasinan v. Court of Appeals, G.R. No. 104266, March 31, 1993). It
does not dispose of the case totally because the case can still be tried on the basis
of the remaining issue, which is the award of damages. But the defendant may
challenge the order through a special civil action for certiorari, if there is grave
abuse of discretion (Sec. 1, Rule 65; Answers to the Bar Examination Questions by
the UP Law Complex and Philippine Law Schools Association 2006).

Affidavits and Attachments

Q: State the form and contents of the affidavits and supporting papers in a
motion for summary judgment.

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 ANS: Supporting and opposing affidavits shall be made on personal knowledge
setting forth facts admissible in evidence and showing 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 and served
therewith (Sec. 5, Rule 35).

Q: What is the effect of submission of affidavits in bad faith?

ANS: The court shall 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, and the offending party or counsel may further be
adjudged guilty of contempt.

E.JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

Q: How is judgment on the pleadings distinguished from summary judgment?
ANS: The following are the distinctions:
a. As to ground, a judgment on the pleadings is rendered because the answer
fails to tender an issue, while a summary judgment is based on the ground
that while there is an issue, there is no genuine factual issue (Narra
Integrated Corp. v. Court of Appeals, G.R. No. 137915, November 15,
2000);
b. As to basis of the judgment, a judgment on the pleadings is based solely
on the pleadings (Sec. 1, Rule 34), while a summary judgment is based on
pleadings, depositions, and admissions (Sec. 3, Rule 35);
c. As to who may file, a judgment on the pleadings is filed by a claiming party
(Sec. 1, Rule 34), while a summary judgment may be filed either by the
claiming or defending party (Sec. 1 and 2, Rule 35);
d. As to notice, the movant in a motion for judgment on the pleadings must
give the adverse party a 3-day notice of hearing (Sec. 4, Rule 15), while
the movant for summary judgment must give a 10-day notice (Sec. 3, Rule
35);
e. As to its termination, the entire case is terminated in a judgment on the
pleadings, while there may be a partial termination in a summary judgment
(Sec. 4, Rule 35);
f. As to the existence of an answer, in a judgment on the pleadings, there is
already an answer filed (Sec. 1, Rule 34). In a summary judgment, if the
motion is filed by the plaintiff, it must be filed at any time after the answer is
served (Sec. 1, Rule 35). If the motion is filed by the defendant, it may be
filed at any time, even before there is an answer (Sec. 2, Rule 35).

F.RENDITION OF JUDGMENTS AND FINAL ORDERS

Q: What is a rendition of judgment?
ANS: A rendition of judgment is the filing of the signed decision with the clerk of
court. The mere pronouncement of the judgment in open court with the
stenographer taking note thereof does not constitute a rendition of the judgment
(Ago v. Court of Appeals, G.R. No. L-17898, October 31, 1962).

Q: What is the form of a judgment or final order determining the merits of the
case?
ANS: The same shall be in writing, personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it is based, signed by
him and filed with the clerk of court (Sec. 1, Rule 36).

G.ENTRY OF JUDGMENT AND FINAL ORDER

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 Q: When does a judgment or final order become final and executory?
ANS: A judgment becomes “final and executory” by operation of law. Finality of
judgment becomes a fact upon the lapse of the reglementary period to appeal if no
appeal is perfected (City of Manila v. Court of Appeals, G.R. No. 100626,
November 29, 1991).

Q: What is an entry of judgment?

ANS: The entry of judgment is the physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the book of entries of judgment
and after the same has become final and executory. The record shall contain the
dispositive portion of the judgment or final order and shall be signed by the clerk of
court, with a certificate by said clerk that the judgment has already become final
and executory (Sec. 2, Rule 36).

Q: What shall be deemed the date of entry of judgment and what is its
importance?
ANS: The date of finality of the judgment or final order shall be deemed to be the
date of its entry (Sec. 2, Rule 36). The date of entry is significant in reckoning
relevant periods in some proceedings such as:
a. The execution of a judgment by motion is within 5 years from the entry of
judgment (Sec. 6, Rule 39);
b. The filing of a petition for relief from judgment must be not more than 6 months
from the entry of judgment or final order (Sec. 3, Rule 38).

XVI. POST JUDGMENT REMEDIES

A.MOTION FOR NEW TRIAL AND RECONSIDERATION
Q: Distinguish between a Motion for New Trial and a Motion for
Reconsideration.
ANS: The distinctions are the following:
Grounds
A motion for new trial may be filed based on the following grounds:
a. Fraud, accident, mistake or excusable negligence which ordinary prudence could
not have guarded against and by reason of which, the aggrieved party has
probably been impaired in his rights; or
b. Newly discovered evidence, which he could not, with reasonable diligence have
discovered and produced at trial, and if so presented, would probably alter the
result (Sec. 1, Rule 37).

On the other hand, a motion for reconsideration may be filed on the following
grounds:
a. That the damages awarded are excessive;
b. That the evidence is insufficient to justify the decision or final order; or
c. That the final order is contrary to law (Sec. 1, Rule 37).

When to File
The period to file either motion shall be within the period for taking an appeal of the
decision (Sec. 1, Rule 37).

Denial of the Motion, Effect

An order denying a motion for new trial or reconsideration is not appealable, the
remedy being an appeal from the judgment subject of the motion for new trial (Sec.
9, Rule 37).

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Grant of the Motion, Effect
Where a motion for new trial is granted, the original judgment or final order shall be
vacated and the action shall stand for trial de novo, but the recorded evidence
taken upon the former trial, in so far as it is material and competent to establish the
issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

On the other hand, where a motion for reconsideration is granted as when the court
finds that there has been excessive award of damages or that the judgment or final
order is contrary to the evidence or law, the court may amend such judgment or
final order accordingly (Sec. 3, Rule 37).

Remedy when Motion is Denied; Fresh 15-Day Period Rule

Q: Explain the concept of the “Fresh Period” rule.
ANS: Where the motion for new trial or reconsideration is denied, the movant shall
have a fresh period within which to file his appeal of the judgment or final order. The
“fresh period” is 15 days counted from the receipt of the order denying the motion
for new trial or for reconsideration (Neypes v. Court of Appeals, G.R. No. 141524,
Sept. 14, 2005).

Q: What courts are covered by the fresh period rule?

ANS: This “fresh period rule” shall also apply to Rule 40 governing appeals from
the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for
review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals
from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals
by certiorari to the Supreme Court. This rule was adopted to standardize the appeal
periods provided in the Rules to afford fair opportunity to review the case and, in the
process, minimize errors of judgment (Ibid.).

Q: Is the fresh-period rule applicable in all cases?

ANS: No. The fresh period rule of 15 days becomes significant only when a party
opts to file a motion for new trial or reconsideration (Riano, Civil Procedure, 2007
ed., p.358). Moreover, the rule does not refer to the period within which to appeal
from the order denying the motion for reconsideration but to the period within which
to appeal from the judgment itself, because an order denying a motion for
reconsideration is not appealable (Riano, p.433).

Q: Plaintiff A received an adverse Decision of the RTC in an ordinary civil

case on 06 December 2012 and, on 19 December 2012, filed a Motion for
Reconsideration of the Decision. On 20 December 2012, the court denied A’s
Motion for Reconsideration. Plaintiff A received the Order denying his Motion
for Reconsideration on 03 January 2013 and filed his Notice of Appeal on 05
January 2013. The court denied due course to A’s Notice of Appeal on the
ground that he period to appeal had already lapsed. Is the court’s denial of
due course to A’s appeal correct? (2003 Bar)
ANS: No, the court’s denial of due course to A’s appeal is not correct. The court
allows a fresh period of 15 days counted from the receipt of the order denying the
motion for reconsideration within which to file his appeal of the RTC decision
(Neypes v. Court of Appeals, supra). Plaintiff A filed his notice of appeal on January
5, 2013, or only 2 days after he received notice of the denial of the motion for
reconsideration. Following the Neypes doctrine, the notice of appeal was filed in
due time (Answers to the Bar Examination Questions by the UP Law Complex and
Philippine Law Schools Association 2006).

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B.APPEALS IN GENERAL
Q: What is an appeal?
ANS: An appeal is the resort to a superior or appellate court to review the decision
of an inferior court or an administrative agency (Black’s Law Dictionary, 5th ed.,
p.88).

Q: State the nature of the right to appeal.

ANS: The right to appeal is not a natural right or a part of due process, it is merely
a statutory privilege, and may be exercised only in the manner and in accordance
with the provisions of the law. The party who seeks to avail of the same must
comply with the requirements of the rules. Failing to do so, the right to appeal is lost
(Producers Bank of the Philippines v. Court of Appeals, et al., G.R. No. 126620,
April 17, 2002).

Judgments and Final Orders subject to Appeal

Q: What may be the subject of appeal?
ANS: An appeal is available only from a judgment or a final order that completely
disposes of the case or of a particular matter therein when declared by the Rules to
be appealable (Sec. 1, Rule 41).

Q: True or False: All final orders are appealable.

ANS: False. Only final orders that completely dispose of the case or of a particular
matter therein when so declared by the Rules are appealable. Moreover, Sec. 1, of
Rule 41 of the Rules of Court enumerates several final orders that are not
appealable.

Matters not Appealable

Q: What orders or judgments may not be appealed from?
ANS: No appeal may be taken from:
a. An order denying a petition for relief or any similar motion seeking relief
from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an appeal;
d. 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;
e. An order of execution;
f. A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints,
while the main case is pending; unless the court allows an appeal
therefrom;
g. An order dismissing an action without prejudice (Sec. 1, Rule 41).

Remedy against Judgments and Orders which are not Appealable

Q: What is the remedy in those instances where the judgment or final order is
not appealable?
ANS: The aggrieved party may file the appropriate special civil action under Rule
65 (Sec. 1, Rule 41).

Modes of Appeal
Q: Outline the modes of appeal from the decision of the Regional Trial Court.
ANS:

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 a. Ordinary Appeal – Refers to appeals to the Court of Appeals from cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction. The appeal shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party (Rule 41).
b. Petition for Review – Where judgment is rendered by the Regional Trial
Court in the exercise of its appellate jurisdiction and is brought before the
Court of Appeals (Rule 42).
c. Petition for Review on Certiorari – Where a judgment of the Regional Trial
Court exercising its original jurisdiction is brought to the Supreme Court
raising only questions of law (Rule 45).

Q: When is a record on appeal required?

ANS: A record on appeal is required in the following cases:
a. In special proceedings and in other cases of multiple or separate appeals
(Sec. 3, Rule 40);
b. In an order of expropriation in eminent domain proceedings (Sec. 2, Rule
69);
c. In a judgment for recovery of property or partition with accounting (Roman
Catholic Archbishop of Manila v. Court of Appeals, G.R. No. 111324, July
5, 1996);
d. In a foreclosure of mortgage (Ibid.); and
e. In a judgment for or against one or more of several defendants, leaving the
action to proceed against the others (Sec. 4, Rule 36).

Q: Distinguish between an improper appeal and an erroneous appeal.

ANS: Improper appeal means the choice or mode of appeal is correct but the
appellant raises issues which the court could not resolve. In this instance the case
may be referred to the Court of Appeals (Sec. 6, Rule 56), although the Supreme
Court may also dismiss the appeal. On the other hand, erroneous appeal means
error in the choice or mode of appeal. In this instance, the appeal shall be
dismissed outright (Circular No. 2-90, March 9, 1990).

Issues to be Raised on Appeal

Q: What are the issues that may be raised on appeal?
ANS: The rules on the issues to be raised on appeal may be summarized as
follows:
a. In all cases decided by the RTC in the exercise of its original jurisdiction, appeal
may be made to the Court of Appeals by mere notice of appeal where the
appellant raises questions of fact or mixed questions of fact and law;
b. In all cases decided by the RTC in the exercise of its original jurisdiction where
the appellant raises only questions of law, the appeal must be taken to the
Supreme Court on a petition for review on certiorari under Rule 45.
c. All appeals from judgments rendered by the RTC in the exercise of its appellate
jurisdiction, regardless of whether the appellant raises questions of fact,
questions of law, or mixed questions of fact and law, shall be brought to the Court
of Appeals by filing a petition for review under Rule 42 (Macawiwili Gold Mining
and Development Co., Inc. v. Court of Appeals, G.R. No. 115104, October 12,
1998).

Q: May the court consider issues not raised on appeal?

ANS: As a general rule, no issue may be raised on appeal unless it has been
brought before the lower tribunal for its consideration. But this rule has some

76
exceptions. Thus, an appellate court is clothed with ample authority to review
rulings even if they are not assigned as errors in the appeal in these instances:
a. Grounds not assigned as errors but affecting jurisdiction over the subject matter;
b. Matters not assigned as errors on appeal but are evidently plain or clerical errors
within contemplation of law;
c. Matters not assigned as errors on appeal but consideration of which is necessary
in arriving at a just decision and complete resolution of the case or to serve the
interests of justice or to avoid dispensing piecemeal justice;
d. Matters not specifically assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the issue submitted which the
parties failed to raise or which the lower court ignored; matters not assigned as
errors on appeal but closely related to an error assigned; and
e. Matters not assigned as errors on appeal but upon which the determination of a
question properly assigned, is dependent (Mendoza v. Bautista, G.R. No.
143666, March 18, 2005).

Period to Appeal
Q: Within what period should an appeal be taken?
ANS:
a. In the case of an ordinary appeal under Rule 40, an appeal may be taken
within 15 days after notice to the appellant of the judgment or final order
appealed from. Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within 30 days after notice of
the judgment or final order.
b. In the case of an ordinary appeal under Rule 41, an appeal by notice of
appeal may be taken within 15 days after notice of the judgment or final
order appealed from. In special proceedings and in cases of multiple or
separate appeals where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within 30 days after notice of
the judgment or final order. However, an appeal in habeas corpus cases
shall be taken within 48 hours from notice of the judgment or final order
appealed from.
c. In a Petition for Review under Rule 42, the appeal may be taken within 15
days from notice of the decision sought to be reviewed or of the denial of
petitioner‘s motion for new trial or reconsideration filed in due time after
judgment;
d. In a Petition for Review under Rule 45, the appeal may be taken within 15
days from notice of the award, judgment, final order or resolution, or
from the date of its last publication 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.

Perfection of Appeal
Q: When is an appeal deemed perfected?
ANS:
a. A party’s appeal by notice of appeal is deemed perfected as to him by the
filing of the notice of appeal in due time.
b. A party’s appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon approval of the record on appeal
filed in due time (Sec. 4, Rule 40; Sec. 9, Rule 41).

Q: What is the effect of the perfection of appeal?

ANS: Perfection of appeal has the following effects:

77
 a. In appeals by notice of appeal, the court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.
b. In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the record on appeal filed in
due time and the expiration of the time to appeal by the other parties (Sec.
4, Rule 40; Sec. 9, Rule 41).

Appeal from Judgments or Final Orders of the MTC

Q: Where may an appeal from a judgment or final order of a MTC be made?
ANS: An ordinary appeal from a judgment or final order of the MTC may be taken
to the RTC exercising jurisdiction over the area to which the MTC pertains (Sec. 1,
Rule 40).

NOTE: Where the MTC dismisses a case for lack of jurisdiction and appeal of such
dismissal is made to the RTC, should the latter affirm the dismissal and if it has
jurisdiction over the subject matter, the RTC is obliged to try the case as if it were
originally filed with it (Sec. 8, Rule 40).

Appeal from Judgments or Final Orders of the RTC

Q: What are the three modes of appealing a judgment or final order of the
RTC?
ANS: There are three modes of appealing a judgment or final order of the RTC. It
may be through an ordinary appeal (Rule 41), a petition for review (Rule 42) or by
petition for review on certiorari (Rule 45).

Appeal from Judgments or Final Orders of the Court of Appeals (CA)

Q: Where may an appeal from a judgment or final order of the CA be taken?
ANS: Appeal from the judgments or final orders of the Court of Appeals concerning
purely questions of law which must be distinctly set forth may be elevated to the
Supreme Court by way of Rule 45: petitions for review on certiorari.

Appeals from Judgments or Final Orders of the Court of Tax Appeals (CTA)
Q: To what court is a resolution of a division of the CTA on a motion for
reconsideration or new trial appealable?
ANS: A party adversely affected by a resolution of a division of the CTA on a
motion for reconsideration or new trial, may file a petition for review with the CTA en
banc (A.M. No. 05-11-07-CTA).

Q: To what court are decisions or rulings of the CTA en banc appealable?

ANS: A party adversely affected by a decision or ruling of the CTA en banc may file
with the Supreme Court a verified petition for review on certiorari under Rule 45
(Secs. 1 and 3, Rule 43).

Review of Final Judgments or Final Orders of the Commission on Elections

(COMELEC)
Q: How may a judgment, resolution or final order of the COMELEC be
appealed?
ANS: A judgment, resolution, or final order of the COMELEC may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule 65 in relation to Rule
64 by filing the petition within 30 days from notice (Sec 2, Sec. 3, Rule 64).

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 Review of Final Judgments or Final Orders of the Commission on Audit
(COA)
Q: How may a judgment, resolution or final order of the COA be appealed?
ANS: A judgment, resolution or final order of the COA may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule 65 in relation to Rule
64 by filing the petition within 30 days from notice (Secs. 2 and 3, Rule 64).

Review of Final Judgments or Final Orders of the Civil Service Commission

(CSC)
Q: What is the mode of appeal from a decision of the CSC to the CA?
A: A judgment, final order or resolution of the CSC may be taken to the CA under
via a petition for review under Rule 43.

Review of Final Judgments or Final Orders of the Ombudsman

Q: To what court are orders, directives and decisions of the Ombudsman
appealable?
ANS: It depends:
a. An appeal from the orders, directives and decisions of the Ombudsman in
administrative disciplinary cases may be brought before the Court of
Appeals via a petition for review under under Rule 43.
b. If what is involved is a criminal or non-administrative case, the remedy is to
file a petition for certiorari under Rule 65 with the Supreme Court.

Review of Final Judgments or Final Orders of the National Labor Relations

Commission (NLRC)
Q: To what court are decisions or final orders of the NLRC appealable?
ANS: They are appealable by way of a petition for certiorari under Rule 65 within 60
days from notice of the decision. Such petition must be filed with the Court of
Appeals in accordance with the doctrine of hierarchy of courts (St. Martin Funeral
Homes v. NLRC, G.R. No. 130866, Sept. 16, 1998). Should the same be filed with
the Supreme Court, the latter shall dismiss the same instead of referring the action
to the CA (A.M. No. 99-2-01-SC).

Review of Final Judgments or Final Orders of Quasi-Judicial Agencies

Q: To what court are final judgments or final orders of quasi-judicial agencies
appealable?
ANS: Appeals from the quasi-judicial agencies listed in Rule 43 are required to be
brought to the Court of Appeals via a petition for review. It may involve a question of
law, a question of fact or mixed questions of law and fact (Sec. 3, Rule 43). The
appeal shall not stay the award, judgment, final order or resolution unless the CA
directs otherwise (Sec. 12, Rule 43).

C.RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS

Q: Discuss the concept of a petition for relief from judgment.
ANS: It is a remedy where a party seeks to set aside a judgment, final order or any
other proceeding rendered against him by a court whenever he was unjustly
deprived of a hearing or was prevented from taking an appeal because of fraud,
accident, mistake or excusable neglect (Sec. 1, Rule 38).

Q: With what court should a petition for relief from judgment be filed?
ANS: The petition may be filed with the same court where the original judgment
was rendered (Sec. 1, Rule 38).

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 Grounds for Availing of the Remedy
Q: State the grounds for availing of the remedy of a petition for relief from
judgment.
ANS: They are:
a. 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 excusable negligence (Sec. 1, Rule 38);
b. When the petition has been prevented from taking an appeal by fraud,
accident, mistake or excusable negligence (Sec. 2, Rule 38).

Time to file Petition

Q: When should the petition for relief from judgment be filed?
ANS: A petition for relief from judgment must be filed within (a) 60 days from
knowledge of judgment, order or other proceedings to be set aside and (b) 6
months from entry of such judgment, order or other proceeding. These two periods
must concur. Both periods are not extendible and are never interrupted (Sec. 3,
Rule 38).

Contents of Petition
Q: State the form and contents of a petition for relief.
ANS: The petition must be verified, and accompanied by an affidavit showing fraud,
accident, mistake, or excusable negligence. It must also be have an affidavit of
merit which shows the facts constituting the petitioner’s good and substantial cause
of action or defense as the case may be (Sec. 3, Rule 38).

D.ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Q: State the nature and purpose of an annulment of judgment.
ANS: An annulment of judgment is a remedy independent of the case where the
judgment sought to be annulled was rendered (Islamic Da’wah Council of the
Philippines v. Court of Appeals, G.R. No. 80892, September 29, 1989). Its purpose
is to have the judgment set aside so that there will be a renewal of litigation where
the ordinary remedies of new trial, appeal, relief from judgment are no longer
available without the petitioner’s fault (Sec. 1, Rule 47).

Q: Which court has original jurisdiction over actions to annul judgments of

the RTC?
ANS: The CA has exclusive original jurisdiction over actions for annulment of
judgments or final orders and resolutions in civil actions of the RTC (Sec. 1, Rule
47).

Grounds for Annulment

Q: State the grounds for annulment of judgment of the RTC.
ANS: An annulment of judgment may be based on the ground of extrinsic fraud and
lack of jurisdiction (Sec. 2, Rule 47).

Q: What is extrinsic fraud?

ANS: Extrinsic fraud refers to any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of the case, whereby the defeated
party has been prevented from exhibiting fully his side of the case, by fraud or
deception practiced on him by his opponent (Makabingkil v. PHHC, G.R. No. L-
29080, August 17, 1976).

Q: When is extrinsic fraud not a valid ground to annul a judgment?

80
 ANS: If it was availed of, or could have been availed of, in a motion for new trial or
petition for relief (Sec. 2, Rule 47).

Q: What does lack of jurisdiction as a ground to annul a judgment refer to?

ANS: Lack of jurisdiction may refer to either the lack of jurisdiction over the person
of defendant or lack of jurisdiction over indispensable parties, or over the subject
matter of the claim (Riano, Fundamentals of Civil Procedure, 2005 ed., p.676).

Period to File Action

Q: Within what period should an action to annul a judgment be filed?
ANS: The period within which an action to annul a judgment should be filed is as
follows:
a. Where the ground is based upon extrinsic fraud, the action must be filed within 4
years from its discovery.
b. If the ground is based on lack of jurisdiction, the action must be brought before
the action is barred by laches or estoppel (Sec. 3, Rule 47).

Effects of Judgment of Annulment

Q: State the effects of the judgment of annulment.
ANS: The effects of the judgment of annulment are the following:
a. On the ground of lack of jurisdiction:
i. The questioned judgment or order shall be set aside and rendered void.
The nullity shall be without prejudice to the re-filing of the original action
in the proper court (Sec. 7, Rule 47).
ii. The prescriptive period to re-file shall be deemed suspended from the
filing of such original action until the finality of the judgment of annulment
(Sec. 8, Rule 47).
b. On the ground of extrinsic fraud:
i. The court, upon motion may order the trial court to try the case as if a
motion for new trial was granted (Sec. 7, Rule 48).
ii. The prescriptive period shall not be suspended if the extrinsic fraud is
attributable to the plaintiff in the original action (Sec. 8, Rule 47).

NOTE: In addition to these, the court may include the award of damages,
attorney’s fees and other relief (Sec. 9, Rule 47).

E.COLLATERAL ATTACK OF JUDGMENTS

Q: What is a collateral attack of a judgment?
ANS: A collateral attack is made when, in another action to obtain a different relief,
an attack on the judgment is made as an incident in said action. This is proper only
when the judgment, on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction (Co v. Court of Appeals, G.R. No.
93687, May 6, 1991).

XVII. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Q: What is meant by execution?
ANS: Execution is a remedy afforded by law for the enforcement of a judgment, its
object being to obtain satisfaction of the judgment on which the writ is issued. It
issues by order of the court a quo, on motion of the judgment obligee, upon finality
of a judgment or order sought to be enforced (Cagayan de Oro Coliseum, Inc. v.
Court of Appeals, G.R. No. 129713, December 15, 1999).

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A.DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF
APPEAL; FOR PURPOSES OF EXECUTION
Q: Distinguish between finality of judgment for purposes of appeal and
finality of judgment for purposes of execution.
ANS: For purposes of appeal, a judgment or order is final if it disposes of the action
or proceeding. It is one that leaves nothing else for the court to do, so that it is now
appealable (Investments, Inc. v. Court of Appeals, supra). For purposes of
execution, a judgment or order is no longer appealable and is already capable of
being executed because the period for appeal has elapsed without the party having
perfected an appeal or if there has been an appeal, it has already been affirmed by
the highest possible tribunal (Riano, Fundamentals of Civil Procedure, 2005 ed.,
p.600).

B.WHEN EXECUTION SHALL ISSUE

Q: When may execution issue as a matter of right?
ANS: Execution as a matter of right is available on motion upon a judgment or
order that disposes of the action or proceeding upon the expiration of the period to
appeal and if no such appeal has been duly perfected (Sec. 1, Rule 39).

Q: When is execution a matter of discretion?

ANS: An execution may be allowed even before the expiration of the period for
appeal or pending appeal provided the following requisites are present:
a. There must be a motion filed by the prevailing party with notice to the adverse
party;
b. The motion must be filed with the trial court while it has jurisdiction over the case
and is in possession of either the original record or the record on appeal, as the
case may be, at the time of the filing of the motion;
c. There must be a hearing of the motion for discretionary execution;
d. There must be good reasons to justify the discretionary execution; and
e. The good reasons must be stated in a special order (Sec. 2(a), Rule 39).

C.HOW A JUDGMENT IS EXECUTED

Execution by Motion or by Independent Action

Q: What are the modes of execution of judgment?
ANS: The following are the modes of execution:
a. Execution by motion may be had if the enforcement of the judgment is
sought within 5 years from the date of its entry.
b. Execution by independent action may be had when the five-year period
has elapsed from the entry of judgment and before it is barred by the
statute of limitations. This action to revive the judgment must be filed within
10 years from the date the judgment became final (Sec. 6, Rule 39).

Issuance and Contents of a Writ Of Execution

Q: What are the contents of a writ of execution?
ANS: The writ of execution shall issue in the name of the Republic of the
Philippines from the court which granted the motion and shall state:
a. The name of the court which granted the motion;
b. The case number;
c. The title;
d. The dispositive portion of the judgment or order subject of the execution;
e. Require the sheriff or other proper officer to whom it is directed to enforce the writ
according to its terms (Sec. 8, Rule 39).

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Execution of Judgments for Money
Q: How may execution for money judgment be made?
ANS: The officer enforces the judgment by:
a. Immediate payment on demand – The officer enforcing the writ shall
demand from the judgment obligor the immediate payment of the full
amount stated in the judgment including the lawful fees in cash, certified
check payable to the judgment obligee or any other form of payment
acceptable to him.

b. Satisfaction by levy – If the judgment obligor cannot pay all or part of the
obligation in cash, certified check payable to the judgment obligee or other
mode of payment acceptable to the latter, the officer shall levy upon the
properties of the judgment obligor.

NOTE: The judgment obligor shall have the option of selecting which
property shall be levied upon sufficient to cover the judgment debt. Should
he fail to exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the personal properties
are insufficient. The sheriff shall sell only a sufficient portion of the
properties of which has been levied and only so much of them as is
sufficient to satisfy the judgment and lawful fees.

c. Garnishment of debts and credits – The officer may levy on the debts due
the judgment debtor including bank deposits, financial interests, royalties,
commissions and other personal property not capable of manual delivery in
the possession or control of third parties (Sec. 9, Rule 39).

Q: What is a levy?
ANS: Levy is the act whereby the sheriff sets apart or appropriates a part or the
whole of the properties of the judgment obligor to satisfy the command of the writ
(Fiestan v. Court of Appeals, G.R. No. 81552, May 28, 1990).

Q: What is meant by garnishment?

ANS: Garnishment is a species of attachment for reaching any property or credits
pertaining or payable to a judgment debtor. In legal contemplation, it is a forced
novation by the substitution of creditors (Perla Compania de Seguros, Inc. v.
Ramolete, G.R. No. L-60887, November 13, 1991).

Execution of Judgments for Specific Acts

Q: How shall a judgment for the performance of a specific act be executed?
ANS: If the judgment requires a person to perform a specific act, all that a sheriff is
called upon to do is to serve the writ of execution with a certified copy of the
judgment requiring specific performance upon the party or parties against whom the
same was rendered and in case of failure to abide, it is at the prevailing party's
instance not the sheriff's that the aid of the court may be sought (Del Rosario v.
Bascar, A.M. No. P-88-255, March 3, 1992). Said act must be performed but if the
party fails to comply within the specified time, the court may direct the act to be
done by someone at the cost of the disobedient party and the act when so done
shall have the effect as if done by the party (Sec. 10, Rule 39).

Execution of Special Judgments

Q: What is a special judgment?

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 ANS: It is one which can only be complied with by the judgment obligor because of
his personal qualifications or circumstances. It is one other than payment of money
or for the sale or delivery of real or personal property (Albano, p.502).

Q: How shall a special judgment be executed?

ANS: A certified copy of the judgment shall be attached to the writ and shall be
served upon the party required to obey the same and such party may be punished
for contempt if he disobeys such judgment (Sec. 11, Rule 39).

Effect of Levy on Third Persons

Q: What is the effect of levy on third persons?
ANS: The levy shall create a lien in favor of the judgment obligee over the right, title
and interest of the judgment obligor in such property at the time of the levy, subject
to liens and encumbrances then existing (Sec. 12, Rule 39).

D.PROPERTIES EXEMPT FROM EXECUTION

Q: What are the properties exempt from execution?
ANS: Except as otherwise expressly provided by law, the following property, and no
other, shall be exempt from execution:
a. The judgment obligor’s family home as provided by law, or the homestead in
which he resides, and land necessarily used in connection therewith;
b. Ordinary tools and implements personally used by him in his trade, employment,
or livelihood;
c. 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;
d. His necessary clothing and articles for ordinary personal use, excluding jewelry;
e. 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;
f. Provisions for individual or family use sufficient for 4 months;
g. The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding 300,000 pesos in value;
h. One fishing boat and accessories not exceeding the total value of 100,000 pesos
owned by a fisherman and by the lawful use of which he earns his livelihood;
i. So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the 4 months preceding the levy as are necessary for the
support of his family;
j. Lettered gravestones;
k. Monies, benefits, privileges, or annuities accruing or in any manner growing out
of any life insurance;
l. The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government; and
m. Properties specially exempted by law.

NOTE: No article or species of property mentioned shall be exempt from execution

issued upon a judgment recovered for its price or upon a judgment of foreclosure of
a mortgage hereon (Sec. 13, Rule 39).

E.PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS

Q: If the property levied upon is claimed by a third person, what are the
remedies available to him?

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 ANS: The third person claiming a property levied upon has the option to resort to
any of the following remedies:
a. Summary hearing before the court which authorized the execution where the
court may command that the property be released from the mistaken levy and
restored to the rightful owner or possessor; or
b. Terceria or third-party claim filed with the sheriff under Sec. 16, Rule 39;
c. Action for damages on the bond posted by judgment oblige filed within 120 days
from the date of the filing of the bond; or
d. Independent reinvindicatory action.

NOTE: The abovementioned remedies are cumulative and may be resorted to by

the third party claimant independently of or separately from and without need of
availing of the others (Sy v. Discaya, G.R. No. 86301, January 23, 1990).

In Relation to Third Party Claim in Attachment and Replevin

Q: What is the remedy of a third person whose property is subject of
attachment?
ANS: He may avail of terceria by making an affidavit of his title thereto or his right
of possession thereof, stating the grounds of such right or title. The affidavit must
be served upon the sheriff and a copy thereof upon the attaching party (Sec. 14,
Rule 57).

Q: What is the remedy of a third person whose property is subject of the writ
of replevin?
ANS: A third person, not a party to the action, whose property is the subject of the
writ of replevin, may avail of terceria by making an affidavit of his title thereto or his
right of possession thereof, stating the grounds of such right or title. The affidavit
must be served upon the sheriff and a copy thereof upon the applicant (Sec. 7, Rule
60).

F.RULES ON REDEMPTION
Q: True or False: The right of redemption is available to any type of property.
ANS: False. The right of redemption is available only to real properties (Sec. 27,
Rule 39).

Q: If property is sold on execution, who may redeem it?

ANS: The following persons may redeem real property sold on execution:
a. The judgment obligor or his successor in interest in the whole or any part of
the property.
b. The redemptioner or a creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, subsequent to the lien under
which the property was sold (Sec. 27, Rule 39).

Q: Within what period may the judgment obligor or redemptioner redeem the
property from the purchaser?
ANS: He may redeem the property within 1 year from the date of the registration of
the certificate of sale. All subsequent redemptioners may redeem within 60 days
from the last redemption (Sec. 28, Rule 39). In all cases the judgment obligor shall
have the entire period of 1 year from the date of the registration of the sale to
redeem the property. If the judgment obligor redeems, no further redemption is
allowed and he is restored to his estate (Sec. 29, Rule 39).

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 Q: What is the effect if no redemption is made within one year form the
registration of the certificate of sale?
ANS: The purchaser shall be entitled to a conveyance and possession of the
property; or, if so redeemed whenever 60 days have elapsed and no other
redemption has been made, and notice thereof given, and the time for redemption
has expired, the last redemptioner is entitled to the conveyance and possession.
Under the expiration of the right of redemption, the purchaser or redemptioner shall
be substituted to and acquire all the rights, title, interest and claim of the judgment
obligor to the property as of the time of the levy (Sec. 33, Rule 39).

G.EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED

Q: What is the remedy of the judgment creditor when the return of the writ of
execution shows that the judgment is unsatisfied?
ANS: The judgment creditor is entitled to an order from the court which rendered
the judgment requiring the judgment debtor to appear and be examined concerning
his property and income before the court or a commissioner appointed by it.
However, the judgment obligor cannot be required to appear before a court or
commissioner outside the province or city in which such obligor resides or is found
(Sec. 36, Rule 39).

H.EXAMINATION OF THE OBLIGOR OF JUDGMENT OBLIGOR

Q: May the obligor of the judgment obligor be examined when the judgment is
unsatisfied?
ANS: Yes. Where the return of the writ of execution shows that the judgment is
unsatisfied in whole or in part and upon proof to the satisfaction of the court that a
person, corporation or juridical entity has property of the judgment debtor or is
indebted to the latter the court may order such person, corporation or juridical entity
to appear before the court or commissioner at a time and place within the province
or city where such debtor resides or is found to be examined concerning the same
(Sec. 37, Rule 39).

I.EFFECT OF JUDGMENT OR FINAL ORDERS

Q: Outline the effects of a judgment or final order under Rule 47 of the Rules
of Court.
ANS: The effects of a judgment or final order under Rule 47 are the following:
a. If the judgment or final order is on a specific thing, the same is conclusive
upon the title to the thing.
b. If the judgment or final order is in respect to the probate of a will or the
administration of the estate of a deceased person, it is conclusive upon the
will or administration but the probate of the will or the grant of letters of
administration shall only be prima facie evidence of the death of the
testator or intestate and not a conclusive presumption of death.
c. If the judgment or final order is in respect to the personal, political or legal
condition or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the condition, status or
relationship (Sec. 47 [a], Rule 39).
d. In other cases, if the judgment is with respect to the matter directly
adjudged or as to any matter that could have been raised in relation
thereto, the judgment or final order will be conclusive against the parties
and their successors in interest by title subsequent to the commencement
of the action or special proceeding, litigating for the same thing and under
the same title and in the same capacity (Sec.47 [b], Rule 39).

86
 e. In any other litigation between the same parties of their successors in
interest, that only is deemed to have been adjudged in a former judgment
or final order which appears upon its face to have been so adjudged, or
which was actually and necessarily included therein or necessary thereto
(Sec. 47 [c], Rule 39).

Q: Give the requisites of res judicata.

ANS: The essential requisites of res judicata are:
a. The former judgment must be final;
b. It must have been rendered by a court having jurisdiction over the subject
matter and the parties;
c. It must be a judgment or order on the merits; and
d. There must be between the first and second action identity of parties,
identity of subject matter, and identity of causes of action.

Q: What are the two aspects of res judicata?

ANS: The two aspects of res judicata are the following:
a. Bar by former judgment (Sec. 47 [b], Rule 39) – The judgment or decree of
a court of competent jurisdiction on the merits concludes the parties and
their privies to the litigation and constitutes a bar to a new action or suit
involving the same cause of action either before the same or any other
tribunal; and
b. Conclusiveness of judgment (Sec. 47 [c], Rule 39) – Any right, fact, or
matter in issue directly adjudicated or necessarily involved in the
determination of an action before a competent court in which a judgment or
decree is rendered on the merits is conclusively settled by the judgment
therein and cannot again be litigated between the parties and their privies
whether the claim or demand, purpose, or subject matter of the two suits is
the same or not (Prudential Bank v. Mauricio, G.R. No. 183350, January
18, 2012).

Q: Give examples of bar by former judgment and conclusiveness of judgment.

ANS: Examples of bar by former judgment and conclusiveness of judgment are the
following:
a. Bar by former judgment – A judgment rendered upon a promissory note is
conclusive as to the validity of the instrument and the amount due upon it,
although it be subsequently alleged that perfect defenses actually existed, of
which no proof was offered, such as forgery, want of consideration, or payment. If
such defenses were not presented in the action, and established by competent
evidence, the subsequent allegation of their existence is of no legal
consequence. The judgment is as conclusive, so far as future proceedings at law
are concerned, as though the defenses never existed (Peñalosa v. Tuason, G.R.
No. L-6809, March 22, 1912).
b. Conclusiveness of judgment – In an action to recover several installments due
and unpaid on a promissory note without an acceleration clause, the judgment
declaring the promissory note to be genuine is conclusive between the same
parties or their successors-in-interest in a subsequent action to recover
succeeding installments due and unpaid (Ibid.).

J.ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS

Q: How may foreign judgments be given effect in the Philippines?
ANS: There are two ways of giving effect to a foreign judgment:
a. An ordinary action to enforce the foreign judgment may be filed in court or

87
 b. It may be pleaded in an answer or a motion to dismiss (Herrera, Remedial
Law, Vol. II, 2007 Ed., p. 531).

NOTE: In both instances, the judgment may be repelled by evidence of

a. Want of jurisdiction;
b. Want of notice;
c. Collusion;
d. Fraud; or
e. Clear mistake of law or fact (Sec. 48, Rule 39).

Q: State the effects of foreign judgments.

ANS: Foreign judgments shall have the following effects:
a. In case of judgment or final order upon a specific thing, it shall be
conclusive upon the title to the thing,
b. In case of a judgment or final order against a person, it is presumptive
evidence of a right as between the parties and their successors in interest
by a subsequent title (Ibid.).

XVIII. PROVISIONAL REMEDIES

A.NATURE OF PROVISIONAL REMEDIES
Q: What are provisional remedies?
ANS: Provisional remedies, also known as ancillary or auxiliary remedies, are writs
and processes available during the pendency of the action which may be resorted
to by a litigant to preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in the case
(Regalado, p. 684).

Q: State the nature of provisional remedies.

ANS: Provisional remedies are temporary measures availed of during the pendency
of the action and ancillary because they are mere incidents in and are dependent
upon the result of the main action (Ibid.).

B.JURISDICTION OVER PROVISIONAL REMEDIES

Q: Which court has jurisdiction to grant or issue a provisional remedy?
ANS: The court which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. This includes an inferior court which may grant a
provisional remedy in an action pending within its jurisdiction (Regalado, p. 685).

C.PRELIMINARY ATTACHMENT
Q: What is a writ of preliminary attachment?
ANS: It is a provisional remedy issued upon order of the court where an action is
pending to be levied upon the property or properties of the defendant therein, the
same to be held thereafter by the Sheriff as security for the satisfaction of whatever
judgment might be secured in said action by the attaching creditor against the
defendant (Adlawan v. Tomol, G.R. No. 63225, April 3, 1990).

Grounds for Issuance of a Writ of Attachment

Q: State the grounds upon which attachment may issue.
ANS: They are the following:
a. In actions for recovery of a specified sum of money or damages, except
moral and exemplary, on a cause of action arising from law, contract,

88
 quasi-contract, delict or quasi-delict against a party about to depart from
the Philippines with intent to defraud his creditors;
b. In actions 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
willful violation of duty;
c. In actions to recover the possession of property unjustly or fraudulently
taken, detained, or converted when the property or part thereof, has been
concealed, removed or disposed of to prevent its being found by the
applicant or an authorized person;
d. In actions against a person guilty of fraud in contracting the debt (dolo
causante) or incurring or performing an obligation upon which the action is
based (dolo incidente);
e. In actions against a party who has removed or disposed of his property, or
is about to do so, with intent to defraud his creditors;
f. In actions against non-residents not found in the Philippines, or on whom
summons may be served by publication (Sec. 1, Rule 57).

Q: Arthur, a resident foreigner, sold his car to Bren. After being paid but
before delivering the car, Arthur replaced its original sound system with an
inferior one. Bren discovered the change, rejected the car, and demanded the
return of his money. Arthur did not comply. Meantime, his company
reassigned Arthur to Singapore. Bren filed a civil action against Arthur for
contractual fraud and damages. Upon his application, the court issued a writ
of preliminary attachment on the grounds that Arthur is a foreigner, he
departed from the Philippines and he was guilty of fraud in contracting with
Bren. Is the writ of preliminary attachment proper? (2011 Bar)
ANS: Yes. One of the grounds for the issuance of a writ of preliminary attachment
is that the party against whom the writ is issued is guilty of a fraud in incurring the
obligation upon which the action is brought, or in the performance thereof (Sec. 1
[d], Rule 57). Arthur is guilty of a fraud in changing the sound system and its
components before delivering the car bought from him, hence, the writ of
preliminary attachment is proper.

Requisites
Q: What are the requisites for the issuance of a writ of preliminary
attachment?
ANS: The requisites for the issuance of a writ of preliminary attachment are:
a. The case must be any of those where preliminary attachment is proper.
b. The applicant must file a motion whether ex parte or with notice and
hearing.
c. The applicant must show by affidavit that there is no sufficient security for
the claim sought to be enforced and that the amount claimed in the action
is as much as the sum of which the order is granted above all
counterclaims.
d. The applicant must post a bond executed to the adverse party (Secs. 2 and
3, Rule 57).

Issuance and Contents of the Order of Attachment; Affidavit and Bond

Q: What courts may issue an order of attachment?
ANS: The following courts may issue an order of attachment:

89
 a. The court in which the action is pending;
b. The Court of Appeals;
c. The Supreme Court (Sec. 2, Rule 57).

Q: How may the writ be issued?

ANS: The writ of preliminary attachment may be issued:
a. By motion and notice of hearing by the court in which the action is pending
and may even be issued by the CA or the SC (Sec. 2, Rule 57);
b. Ex parte and even before summons is served upon the defendant.
However, the writ may not be enforced and may not validly effected unless
preceded, or contemporaneously accompanied, by service of summons, a
copy of the complaint, the application for attachment, the order of
attachment and the attachment bond (Davao Light & Power Co., Inc. v.
Court of Appeals, G.R. No. 93262, December 29, 1991).

Q: State the contents of the order of attachment.

ANS: The order must require the sheriff of the court to attach so much of the
property in the Philippines of the party against whom it issued, not exempt from
execution, as may be sufficient to satisfy the applicant’s demand, the amount of
which must be stated in the order (Sec. 2, Rule 57).

Q: What should the affidavit contain?

ANS: The affidavit must state that:
a. A sufficient cause of action exists;
b. The case is one of those mentioned in Sec. 1 of Rule 57;
c. There is no other sufficient security for the claim sought to be enforced by
the action; and
d. The amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for
which the oder is granted above all legal counterclaims (Sec. 3, Rule 57).

Q: What shall be the basis of the applicant’s bond?

ANS: The applicant must give a bond executed to the adverse party in the amount
fixed by the court in the order granting the issuance of the writ, conditioned that the
latter will pay all the costs which may be adjudged to the adverse party and all
damages which he may sustain because of the attachment should the court finally
rule that he was not entitled thereto (Sec. 4, Rule 57).

Rule on Prior or Contemporaneous Service of Summons

Q: What is the rule on prior or contemporaneous service of summons?
ANS: The rule requires that levy on property pursuant to the writ thus issued may
not be validly effected unless preceded, or contemporaneously accompanied, by
service on the defendant of summons, a copy of the complaint (and of the
appointment of guardian ad litem, if any), the application for attachment (if not
incorporated in but submitted separately from the complaint), the order of
attachment, and the plaintiff's attachment bond. The failure to acquire jurisdiction
over the person of the adverse party shall render the implementation of the writ void
(Davao Light and Power Co., Inc. v. Court of Appeals, supra).

Q: Is the rule on contemporaneous service of summons absolute?

ANS: No. The following are exceptions to the requirement:
a. The summons could not be served despite diligent efforts;

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 b. The defendant is a resident of the Philippines and is temporarily out of the
country;
c. The defendant is a non-resident; or
d. The action is in rem or quasi in rem (Sec. 5, Rule 57).

Manner of Attaching Real and Personal Property; When Property is Claimed

by Third Person
Q: Give an outline on the manner of attaching real and personal properties.
ANS: The manner of attaching real and personal properties is as follows:
a. The sheriff shall without delay and with all reasonable diligence attach to
await judgment and execution in the action only so much of the property in
the Philippines of the party against whom it is issued which are not exempt
from execution, sufficient to satisfy the applicant’s demand (Sec. 5, Rule
57);
b. In attaching real property, growing crops or any interest therein, a copy of
the order shall be filed with the registry of deeds along with a description of
the property attached and leaving a copy of such with the occupant of the
property if any, or with such other person or his agent if found within the
province;
c. In attaching personal property capable of manual delivery, by taking and
safely keeping it in his custody after issuing the corresponding receipt
therefor;
d. As to stocks or shares or an interest therein, by leaving with the president
or managing agent of the company, a copy of the writ, and a notice stating
that the stock or interest is attached in pursuant to such writ;
e. Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery
shall be attached by leaving with the person owing such debts or in
possession or control such credits or other personal property, or his agent,
a copy of the writ and notice that such properties are attached.;
f. As to the interest of the party against whom attachment is issued in the
estate of the decedent are attached by giving a copy of the writ to the
executor or administrator and the office of the clerk of court where the
estate is being settled;
g. If the property to be attached is in custodia legis, a copy of the writ shall be
filed with the proper or court or quasi-judicial agency, and notice of the
attachment served upon the custodian of the property (Sec. 7, Rule 57).

Q: Enumerate the remedies available to a third party claiming the property

attached.
ANS: The third party may resort to any of the following remedies which are
cumulative and thus could be resorted independently and separately from the
others:
a. He may avail of the remedy of terceria or third party claim (Sec. 14, Rule 57); or
b. He may file an independent action to recover his property (Accion
reinvindicatoria);
c. He may file a motion for intervention (Rule 19).

Q: How may a defendant prevent the attachment of his property?

ANS: If the attachment has not yet been effected, the party whose property is
sought to be attached may:

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 a. Deposit with the court from which the writ was issued an amount equal to the
value of the bond fixed by the court in the order of attachment or an amount
equal to the value of the property to be attached, exclusive of costs;
b. Give a bond executed in favor of the applicant, in an amount equal to the bond
posted by the latter to secure the attachment or in an amount equal to the value
of the property to be attached, exclusive of costs (Sec. 5, Rule 57).

Discharge of Attachment and the Counter-Bond

Q: What is the remedy of the defendant if the attachment has already been
enforced?
ANS: If the attachment has already been enforced:
a. The defendant may, upon motion, ask for the discharge of the property in
whole or in part. After due notice and hearing, the court shall discharge the
settlement if the movant makes a cash deposit or files a counter-bond in
the amount set by the court equal to that fixed by the court in the order of
attachment, exclusive of costs (Sec. 12, Rule 57).
b. Discharge may also be had without the need for filing a counter-bond on
motion based on the following grounds:
i. The attachment was improperly or irregularly issued or enforced;
ii. The bond of the attaching party is insufficient;
iii. The attachment is excessive and must be discharged as to the excess;
iv. The property is exempt from execution and thus also exempt from
attachment;
v. The court has rendered a judgment against the attaching party; and
vi. Ex parte discharge is not proper (Sec. 13, Rule 57).

Satisfaction of Judgment out of Property Attached

Q: How can the judgment be satisfied out of the property attached?
ANS: If judgment be recovered by the attaching party and execution issue thereon,
the sheriff may cause the judgment to be satisfied out of the property attached, if it
be sufficient for that purpose in the following manner:
a. By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment;
b. If any balance remains due, by selling so much of the property, real or personal,
as may be necessary to satisfy the balance, if enough for that purpose remain in
the sheriff's hands, or in those of the clerk of the court;
c. By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of
such credits or debts, the amount of such credits and debts as determined by the
court in the action, and stated in the judgment, and paying the proceeds of such
collection over to the judgment oblige.

NOTE: The sheriff shall forthwith make a return in writing to the court of his
proceedings under this section and furnish the parties with copies thereof (Sec. 15,
Rule 57).

D.PRELIMINARY INJUNCTION

Definitions and Differences: Preliminary Injunction and Temporary

Restraining Order; Status Quo Ante Order
Q: Distinguish between preliminary injunction and temporary restraining
order.

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ANS: The differences are the following:
a. As to nature, preliminary injunction is an ancillary or preventive remedy
where a court requires a person or a party or even a court or tribunal to
either refrain from or to perform particular acts during the pendency of an
action (Sec. 1, Rule 58); while a temporary restraining order (TRO) is
issued to preserve the status quo until the hearing of the application for
preliminary injunction (Sec. 5, Rule 57);
b. As to requirement of hearing, preliminary injunction cannot be granted
without hearing; while a TRO may be granted ex parte if great or
irreparable injury would result to the applicant before the matter can be
heard on notice (Sec. 5, Rule 57);
c. As to its effectivity, a preliminary injunction is effective during the pendency
of the action involved; while a TRO is effective for a period of 20 days if
issued by the RTC; 60 days if issued by the CA; and until lifted, if issued by
the CA (Sec. 5, Rule 57).

Q: What is the nature of a status quo order?

ANS: A status quo order is one which is merely intended to maintain the last,
actual, peaceable and uncontested state of things which preceded the
controversy. This is resorted to when the projected proceedings in the case made
the conservation of the status quo desirable or essential, but the affected party
neither sought such relief or the allegations in his pleading did not sufficiently make
out a case for a temporary restraining order. The status quo order is thus
issued motu proprio on equitable considerations. Also, unlike a temporary
restraining order or a preliminary injunction, a status quo order is more in the nature
of a cease and desist order, since it neither directs the doing or undoing of acts as
in the case of prohibitory or mandatory injunctive relief. A status quo order does not
require the posting of a bond (Garcia v. Mojica, G.R. No. 139043, September 10,
1999, citing Regalado).

Requisites
Q: What are the requisites for the issuance of a writ of preliminary injunction?
ANS: The requisites are the following:
a. There must be a verified application;
b. The applicant must establish that he has a right to relief or a right to be
protected and that the act against which the injunction is sought violates
such right;
c. The applicant must establish that there is a need to restrain the
commission or continuance of the acts complained of and if not enjoined
would work injustice to him;
d. A bond must be posted, unless otherwise exempted by the court;
e. The threatened injury must be incapable of pecuniary estimation (Sec. 5,
Rule 58).

Kinds of Injunction
Q: What are the kinds of injunction?
ANS: They are:
a. Preliminary Prohibitory Injunction – It is an order prior to judgment or final
order, requiring a party, court, agency or person to refrain from a particular
act or acts. The purpose is to preserve the status quo by preventing the
enjoined act from being performed.
b. Preliminary Mandatory Injunction – It is an order prior to judgment or final
order, requiring the performance of a particular act or acts. In mandatory

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 injunction, the act has already been performed and has violated the rights
of the applicant and the order seeks to restore the status quo prior to such
violation (Sec. 1, Rule 58).

When Writ may be Issued

Q: When may the writ of preliminary injunction be issued?
ANS: It may be issued at any stage prior to the judgment or final order (Sec. 1,
Rule 58).

Grounds for Issuance of Preliminary Injunction

Q: State the grounds for the issuance of preliminary injunction.
ANS: The grounds are the following:
a. Applicant is entitled to the relief demanded; or
b. Commission, continuance or non-performance of the act complained of
would work injustice to the applicant; or
c. Party, court, agency or a person is doing threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual (Sec. 3, Rule
58).

Grounds for Objection to, or for the Dissolution of Injunction or Restraining

Order
Q: What are the grounds for the dissolution or objection to a preliminary
injunction?
ANS: They are:
a. Insufficiency;
b. On other grounds upon affidavits of the party or person enjoined, which
may be opposed by the applicant also by affidavits; or
c. If injunction would cause irreparable damage to the person enjoined while
the applicant can be fully compensated for such damages as he may
suffer; Provided, the defendant files a bond conditioned that he will pay all
the damages which the applicant may suffer (Sec. 6, Rule 58).

Duration of a Temporary Restraining Order (TRO)

Q: What is the lifetime of a TRO?
ANS: The lifetime of a TRO is as follows:
a. If it is shown that the applicant would suffer great and irreparable injury
before the application for the writ of injunction can be heard, the court may
issue a TRO ex parte which shall be effective for a period not exceeding 20
days from service to the party sought to be enjoined;
b. If the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of a multi-sala court or
the presiding judge of a single-sala court may issue a TRO effective for
only 72 hours from issuance. Within such period the judge shall conduct a
summary hearing to determine if the TRO can be extended to 20 days. The
72 hours shall be included in the maximum 20 day period (Sec. 5, Rule
58).

Q: What is the lifetime of a TRO issued by the Court of Appeals or a member

thereof?
ANS: If a TRO is issued by the Court of Appeals or any of its members it shall be
effective for 60 days from notice to the party to be enjoined (Sec. 5, Rule 58).

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 Q: What Is the lifetime of a TRO issued by the Supreme Court?
ANS: If a TRO is issued by the Supreme Court or any of its members shall be
effective until further orders (Sec. 5, Rule 58).

In Relation to R.A. No. 8975, Ban on Issuance of TRO or Writ of Injunction in

Cases Involving Government Infrastructure Projects
Q: May injunction be issued by the RTC to stop infrastructure projects of the
government?
ANS: No. R.A. No. 8975 provides that no court except the Supreme Court shall
issue any TRO or preliminary injunction or preliminary mandatory injunction against
the government or any of its subdivisions, officials or any person or entity whether
public or private acting under the government direction, to restrain, prohibit or
compel the following acts:
a. Acquisition, clearance and development of the right of way and/or site or location
of any government project;
b. Bidding or awarding of a contract/project of the national government;
c. Commencement, prosecution, execution implementation, operation of any such
contract or project;
d. Termination or rescission of any such contract/project; and
e. The undertaking of authorization of any other lawful activity necessary for such
contract or project.

NOTE: Any TRO, preliminary injunction and preliminary mandatory injunction

issued in violation of the above prohibition shall be void (Sec. 3, R.A. No. 8975).

Q: Is the prohibition absolute?

ANS: No. This prohibition shall not apply when the matter is of extreme urgency
involving a constitutional issue, such that unless a temporary restraining order is
issued, grave injustice and irreparable injury will arise. The applicant shall file a
bond, in an amount to be fixed by the court (Sec. 3, R.A. No. 8975).

Rule on Prior or Contemporaneous Service of Summons in Relation to

Attachment
Q: What is the rule on prior or contemporaneous service of summons in
relation to attachment?
ANS: When an application for a writ of preliminary injunction or TRO is made in a
complaint or other initiatory pleading, the case, if filed in a multi-sala court, shall be
raffled only after notice to and in the presence of the adverse party. In any event,
such notice shall be preceded or contemporaneously accompanied by service of
summons, together with a copy of the complaint or initiatory pleading and the
applicant’s affidavit and bond, upon the adverse party in the Philippines (Sec. 4 [c]
Rule 58). This rule has the same exceptions in Sec. 5 of Rule 57 on preliminary
attachment, but excluding actions in rem or quasi in rem (Feria, 1997 Rules of Civil
Procedure, p. 239). Thus, the exceptions are the following:
a. Summons cannot be served personally or by substituted service despite diligent
efforts; or
b. The adverse party is a resident of the Philippines temporarily absent therefrom;
or
c. The adverse party is a non-resident.

F.RECEIVERSHIP
Q: Who is a receiver?

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ANS: A receiver is a representative of the court appointed for the purpose of
preserving and conserving the property in litigation and prevent its possible
destruction or dissipation if it were left in the possession of any of the parties. The
receiver is not the representative of any of the parties but of all of them to the end
that their interests may be equally protected with the least possible inconvenience
and expense (Normandy v. Duque, G.R. No. L-25407, August 29, 1969).

Cases when a Receiver may be Appointed

Q: When may a receiver be appointed?
ANS: Receivers over property, real or personal, may be appointed during the
pendency of the action (Sec. 1, Rule 59).

Q: In what cases may a receiver be appointed?

ANS: Upon a verified application, one or more receivers of property which is the
subject of the action may be appointed by the court where the action is pending or
by the Court of Appeals or Supreme Court or a member thereof in the following
cases:
a. Applicant has an interest in the property or fund subject of the proceeding and
such property is in danger of being lost, removed, or materially injured unless a
receiver is appointed;
b. In foreclosure of mortgage, when 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 it has been agreed upon by the parties;
c. After judgment, to preserve the property during the pendency of an appeal or to
dispose of it according to the judgment or to aid execution;
d. When appointment of receiver is the most convenient and feasible means of
preserving, administering or disposing of the property in litigation (Sec. 1, Rule
59).

Requisites
Q: What are the requisites in the application for receivership?
ANS: They are:
a. There must be a verified application;
b. That the party applying for receivership has an existing interest in the
property in litigation;
c. The case must be any one of those stated under Sec. 1, Rule 59;
d. The posting of a bond by the applicant (Sec. 2, Rule 59);
e. Receiver must be sworn to perform his duties faithfully and file a bond
(Sec. 4, Rule 59).

Requirements before Issuance of an Order

Q: State the requirements before the court may issue of an order appointing a
receiver.
ANS: The requirements are the following:
a. Before issuing an order the court shall require the applicant to file a bond in
favor of the adverse party in an amount fixed by the court, to the effect that
the applicant will pay such party all damages he may sustain by reason of
the appointment of the receiver in case the appointment was procured
without sufficient cause.
b. The court may in its discretion, at any time after the appointment, require
additional bond as further security for such damages (Sec. 2, Rule 59).

General Powers of a Receiver

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 Q: State the general powers of a receiver.
ANS: Subject to the control of the court in which the action or proceeding is
pending, a receiver shall have the power to:
a. Bring and defend, in such capacity, actions in his own name;
b. Take and keep possession of the property in controversy;
c. Receive rents;
d. Collect debts due to himself as receiver or to the fund, property, estate, person,
or corporation of which he is the receiver;
e. Compound for and compromise the same;
f. Make transfers;
g. Pay outstanding debts;
h. Divide the money and other property that shall remain among the persons legally
entitled to receive the same;
i. Generally to do such acts respecting the property as the court may authorize;
j. Invest funds in his hands, only by order of the court upon the written consent of
all the parties (Sec. 6, Rule 59).

Two Kinds of Bonds

Q: What are the two bonds posted in cases of the appointment of a receiver?
ANS: They are the following:
a. The first bond is executed by the applicant for receivership in favor of the
adverse party in order to answer for any damages that the latter may suffer
in case the receivership is found to have been procured without sufficient
cause (Sec. 2, Rule 59).
b. The second bond is executed by the receiver himself in favor of such
person and in such sum as the court may direct, to the effect that he will
faithfully discharge his duties in the action or proceeding and that obey the
orders of the court (Sec. 4, Rule 59).

Termination of Receivership
Q: When shall receivership be terminated?
ANS: When the court:
a. Shall have determined that necessity for a receiver no longer exists (Sec.
8, Rule 59);
b. In his opinion finds that the receivership is not justified by the facts and
circumstances of the case (Sanson v. Araneta, G.R. No. L-43482, July 28,
1937); or
c. Is convinced that the powers are abused (Duque v. CFI of Manila, G.R. No.
L-18359, March 26, 1965).

Q: What shall the court do before the termination of receivership?

ANS: The court shall settle the accounts of the receiver, direct delivery of the funds
or property in his possession, to the person adjudged entitled thereto and order the
discharge of the receiver (Sec. 8, Rule 59).

G.REPLEVIN
Q: Give the concept of replevin.
ANS: Replevin is a proceeding by which the owner or one who has a general or
special property in the thing taken or detained seeks to recover possession in
specie, the recovery of damages being only incidental (Am. Jur. 6).

Q: What is the subject matter of a replevin?

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ANS: The subject matter of a replevin is personal property (Sec. 1, Rule 60). It
cannot be incorporeal property (Albano, p.688).

When may Writ be Issued

Q: When may a party claiming recover of possession of personal property
apply for an order for the delivery of such property to him?
ANS: He may do so at the commencement of the action or at any time before an
answer (Sec. 1, Rule 60).

Requisites
Q: State the requisites for the issuance of a writ of replevin.
ANS: They are:
a. The filing of an application for writ of replevin at the commencement of the
action or at any time before the defendant answers (Sec. 1, Rule 60);
b. The application must contain an affidavit containing the matters
enumerated under Sec. 2 of Rule 60;
c. The applicant must give a bond, executed to the adverse party and double
the value of the property (Sec. 2, Rule 60).

Affidavit and Bond; Redelivery Bond

Q: What are the contents of the affidavit?
ANS: The applicant must show by his affidavit or of some other person who
personally knows that facts:
a. That the applicant is the owner of the property claimed or entitled to the
possession thereof;
b. That the property is wrongfully detained by the adverse party;
c. That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law or seized under a writ of execution or preliminary attachment or is
otherwise is in custodia legis, or if so seized, that it is exempt from such seizure
or custody;
d. The actual market value of the property (Sec. 2, Rule 60).

Q: How much is the bond required to be given by the applicant?

ANS: The bond must be in double the value of the property.

Q: What is a redelivery bond?

ANS: In order to recover possession of the personal property which was taken
under a writ of replevin, the defendant must (1) post a redelivery bond and (2) serve
a copy of such bond on the applicant. Both requirements are mandatory (Yang v.
Valdez, G.R. No. 73317, August 31, 1989).

Sheriff’s Duty in the Implementation of the Writ; When Property is Claimed by

Third Party
Q: How shall the sheriff implement the writ of replevin?
ANS: The property shall be delivered to the applicant if, within 5 days after the
taking of the property by the sheriff:
a. The adverse party does not object to the sufficiency of the bond or of the surety
or sureties thereon; or
b. The adverse party so objects and the court affirms its approval of the applicant’s
bond or approves a new bond; or
c. The adverse party requires the return of the property but his bond is object to and
found insufficient and he does not forthwith file an approved bond.

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 NOTE: If for any reason, the property is not delivered to the applicant, the sheriff
must return it to the adverse party (Sec. 6, Rule 60).

Q: What is the effect if a third person claims title to the property taken by the
sheriff?
ANS: When a third-party claimant makes an affidavit of his title to the property or
his right to the possession thereof, and serves such affidavit to the sheriff and a
copy thereof to the attaching party, the sheriff shall not be bound to keep the
property under replevin unless the applicant files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
levied upon. Claim for damages for the taking or keeping the property must be filed
within 120 days from filing of the bond (Sec. 7, Rule 60).

XIX. SPECIAL CIVIL ACTIONS

A.NATURE OF SPECIAL CIVIL ACTIONS
Q: What is a special civil action?
ANS: It is an action which has special features not found in ordinary civil actions. It
is governed by the ordinary rules but is subject to specific rules prescribed under
Rules 62 to 71 (Sec. 3, Rule 1).

B.ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS

Q: Distinguish ordinary civil actions from special civil actions.
ANS: The differences are the following:
a. As to governing rules, an ordinary civil action is governed by ordinary rules; a
special civil action is also governed by ordinary rules but subject to specific rules
prescribed under Rules 62 to 71;
b. As to existence of a cause of action, an ordinary civil action must be based on a
cause of action; while the concept of a cause of action does not always fit in a
special civil action (e.g. interpleader and declaratory relief);
c. As to venue, in an ordinary civil action, the venue is determined by either the
residence of the parties or the location of the property; in a special civil action,
this is not necessarily true as in quo warranto, the venue is where the SC or CA
sits;
d. As to where it may be filed, an ordinary civil action may be filed initially either in
the MTC or the RTC; while there are special civil actions which can only be filed
in the MTC (e.g. forcible entry and unlawful detainer) and there are also those
which cannot be commenced in the MTC (e.g. certiorari, prohibition and
mandamus);
e. As to how it is commenced, an ordinary civil action is commenced by the filing of
a complaint; a special civil action may be commenced by the filing of a complaint
or petition.

C.JURISDICTION AND VENUE

Q: Which court has jurisdiction over special civil actions?
ANS: The rules on jurisdiction are the following:
a. There are three special civil actions which can be filed in or are within the
jurisdiction of the inferior courts:
i. Interpleader, provided the amount involved is within its jurisdiction;
ii. Ejectment suits;
iii. Contempt.

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 b. A petition for declaratory relief and complaints for expropriation, foreclosure
of real estate mortgage and partition, being incapable of pecuniary
estimation, may only be filed with the RTC;
c. Petitions for certiorari, prohibition and mandamus may be filed with the
RTC, CA, SC, Sandiganbayan. These petitions, when relating to election
cases of the RTC or MTC, may also be filed with the COMELEC, in aid of
its appellate jurisdiction (Sec. 4, Rule 65);
d. A petition for quo warranto may be brought only in the RTC, CA or SC
(Sec. 7, Rule 66).

Q: What rule governs the venue of special civil actions?

ANS: The venue of special civil actions is governed by the general rules on venue,
except as otherwise indicated in the particular rule for said special civil action
(Regalado, p.770).

D.INTERPLEADER
Q: What is interpleader?
ANS: An interpleader is a remedy whereby a person, who has property in his
possession or an obligation to perform, either wholly or partially, but who claims no
interest in the subject, or whose interest, in whole or in part, is not disputed by
others, goes to court and asks that conflicting claimants to the property or obligation
be required to litigate among themselves in order to determine finally who is entitled
to the same (Alvarez v. Commonwealth, G.R. No. L-45315, February 25, 1938).

Requisites for Interpleader

Q: State the requisites for an interpleader to prosper.
ANS: They are:
a. The plaintiff claims no interest in the subject matter or his claim thereto is
not disputed;
b. There must be at least two or more conflicting claimants;
c. The parties impleaded must make effective claims;
d. The subject matter must be one and the same (Herrera, Remedial Law Vol.
III, 2007 ed., p.225).

When to File
Q: When should an action for interpleader be filed?
ANS: An action of interpleader should be filed within a reasonable time after a
dispute has arisen without waiting to be sued by either of the contending claimants.
Otherwise, it may be barred by laches or undue delay. This is because after
judgment is obtained against the plaintiff by one claimant, he is already liable to the
latter (Wack Wack Golf and Country Club, Inc. v. Won, G.R. No. L-23851, March
26, 1976).

E.DECLARATORY RELIEF AND SIMILAR REMEDIES

Who may File the Action

Q: Who may file a petition for declaratory relief?
ANS: 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 may file an action for declaratory
relief (Sec. 1, Rule 63).

Q: What is the purpose of an action for declaratory relief?

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ANS: The purpose of the action for declaratory relief is to secure an authoritative
statement of the rights and obligations of the parties under said law or contract, for
their guidance in the enforcement thereof or compliance therewith, not to settle
issues arising from an alleged breach thereof (Dy Poco v. Commission of
Immigration, G.R. No. L-22313, March 31, 1966).

Requisites of an Action for Declaratory Relief

Q: State the requisites of an action for declaratory relief.
ANS: The requisites are:
a. There must be a justiciable controversy;
b. The controversy must be between persons whose interests are adverse;
c. The parties must have legal interest in the controversy;
d. The controversy must be ripe for judicial determination (Caltex, Inc. v.
Palomar, G.R. No. L-19560, September 29, 1966);
e. The petition must be filed before there is a breach or violation (Sec. 1, Rule
64).

Q: What is meant by the requirement that the petition for declaratory relief
must be filed before there is a breach or violation?
ANS: A petition for declaratory relief will not prosper if filed after the contract or
statute on which it is based has already been breached (De Borja v. Villadolid, G.R.
No. L-1897, November 28, 1949). The law does not require that there is an actual
pending case. It is sufficient that there is a breach of the law, an actionable violation
to bar a complaint for declaratory judgment (Samson v. Andal, G.R. No. L-5932,
February 25, 1954).

When may the Court Refuse to Make a Judicial Declaration

Q: Give instances where the court may refuse to grant declaratory relief.
ANS: The court has discretion to act or not to act on the petition. It may, motu
proprio or on motion, refuse to exercise the power to declare rights and to construe
instruments in any case:
a. Where a decision would not terminate the uncertainty or controversy which gave
rise to the action; or
b. In any case where the declaration or construction is not necessary and proper
under the circumstances (Sec. 5, Rule 63).

NOTE: The court does not have the discretion to refuse to exercise the power to
declare rights and to construe instruments in actions for reformation of instrument,
consolidation or ownership and quieting of title instituted under Rule 63.

Conversion to Ordinary Action

Q: May an action for declaratory relief be converted into an ordinary action?
ANS: Yes. If before the final termination of the case, a breach or violation of the
instrument or law or other governmental regulation should take place, the action
thereupon may be converted into an ordinary action, and the parties shall be
allowed to file such pleadings as may be necessary or proper (Sec. 6, Rule 63).

Q: Is a third party complaint proper in an action for declaratory relief?

ANS: No. A third-party complaint is inconceivable when the main case is one for
declaratory relief. In a third-party complaint, the defendant or third-party plaintiff is
supposed to seek contribution, indemnity, subrogation or any other relief from the
third-party defendant is respect to the claim of the plaintiff against him, while an
action for declaratory relief is confined merely to the interpretation of the terms of

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 the contract (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30,
1977).

Proceedings Considered as Similar Remedies

Q: Discuss the other similar remedies governed by Rule 63.
ANS: The following are the other similar remedies under Rule 63:
a. Reformation of an Instrument – An action for reformation is brought where
the parties have entered into a contract but the instrument which is
supposed to embody their agreement does not reflect their true agreement
by reason of mistake, fraud, inequitable conduct or accident. The action is
brought so the true intention of the parties may be expressed in the
instrument (Art. 1359, NCC).
b. Consolidation of Ownership – Where real property is sold with a stipulation
that the vendor has the right to repurchase the same and he fails to do so
within the period agreed upon, the buyer of said property must obtain a
judicial order before he may have the property registered in his name.
Such action is necessary as the law precludes the registration of the
property in the buyer’s name without such judicial order (Art. 1607, NCC).
c. Quieting of Title – This action is brought to remove or prevent a cloud on
title to or interest in real property. It contemplates a situation where an
instrument or record is apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable or unenforceable, and may be prejudicial to
said title to real property (Art. 476, NCC).

F.REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE

COMELEC AND COA

Application of Rule 65 under Rule 64

Q: To what court may a decision of the COMELEC or COA be reviewed?
ANS: A judgment, final order or resolution of the COMELEC or the COA may be
brought by the aggrieved party to the Supreme Court on certiorari under Rule 65
(Sec. 2, Rule 64).

Distinction in the Application of Rule 65 to Judgments of the COMELEC and

COA and the Application of Rule 65 to Other Tribunals, Persons and Officers
Q: Give the distinction in the application of Rule 65 to judgments of the
COMELEC and COA and the application of Rule 65 to other tribunals, persons
and officers.
ANS: In the application of Rule 65 to judgments of the COMELEC and COA, the
petition must be filed within 30 days from notice of the judgment or resolution. The
filing of a motion for new trial or reconsideration of said judgment shall interrupt the
period fied. If the motion is denied, the aggrieved party may file the petition within
the remaining period but which shall not be less than 5 days in any event, reckoned
from notice of denial (Sec. 3, Rule 64).

On the other hand, in the application of Rule 65 to other tribunals, persons or

officers, the petition must be filed within 60 days from notice of the judgment or
resolution. If a motion for new trial or reconsideration is filed and the same is
denied, the aggrieved party will have another 60 days counted from the notice of
the denial within which to file the petition (Sec. 4, Rule 65).

G.CERTIORARI, PROHIBITION AND MANDAMUS

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Definitions and Distinctions
Q: What is a writ of certiorari?
ANS: Certiorari is a writ issued by a superior court to an inferior court, board or
officer exercising judicial or quasi-judicial functions whereby the record of a
particular case is ordered to be elevated for review and correction in matters of law
(Meralco Securities Industrial Corp. v. Central Board of Assessment Appeals, G.R.
No. L-46245, May 31, 1982).

Q: What is prohibition?
ANS: Prohibition is a writ by which a superior court prevents inferior courts, a
corporation, board or persons from usurping or exercising, a jurisdiction or a power
with which they have not been vested by law (Mataguina Integrated Wood
Products, Inc. v. Court of Appeals, G.R. No. 98310, October 24, 1996).

Q: Define mandamus.
ANS: Mandamus is a writ issued in the name of the state, to an inferior tribunal, a
corporation, board or person, commanding the performance of an act which the law
enjoins as a duty resulting from an office, trust or station (Herrera, p.326, citing
Moran).

Certiorari Distinguished from Appeal by Certiorari

Q: Distinguish certiorari under Rule 65 from appeal by certiorari under Rule
45.
ANS: The distinctions are the following:
DIFFERENCES
PETITION FOR
APPEAL BY CERTIORARI
CERTIORARI
(RULE 45)
(RULE 65)
Proper to correct errors of
Proper where the error is jurisdiction committed by
Primary not one of jurisdiction but an the lower court, or grave
Element error of law or fact which is abuse of discretion which is
a mistake of judgment. tantamount to lack of
jurisdiction.

Nature A mode of appeal. A special civil action.

Jurisdiction Invokes the appellate Invokes the original

Invoked jurisdiction of the court. jurisdiction of the court.
May be directed against an
Subject of the Seeks to review final interlocutory order or
action judgments or final order. matters where no appeal
may be taken from.
Questions
Questions of law. Questions of jurisdiction.
Raised

Filed within the period for Filed within 60 days from

Period appeal (15 or 30 days, as notice of judgment, order or
the case may be). resolution or from the denial

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 of the motion for
reconsideration or new trial.

Does not require a prior As a general rule, a prior

MR
MR. MR is required.

Connection
Continuation of the original Original and independent
With Original
case. action.
Case

The appellant and the

The judge, court, quasi-
appellee are the original
judicial agency, tribunal,
parties to the action, and
corporation, board, officer or
Parties the lower court or quasi-
person shall be public
judicial agency is not
respondents who are
impleaded.
impleaded in the action.

Does not stay the judgment

Stay of Stays the judgment or order subject of the
Judgment appealed from. petition unless enjoined or
restrained.

RTC, CA, SC or
Where Filed SC
Sandiganbayan

Prohibition and Mandamus Distinguished from Injunction

Q: Distinguish prohibition and mandamus from injunction.
ANS:
DIFFERENCES
Prohibition Mandamus Injunction
Special Civil Action Special Civil Action Ordinary Civil Action
It may be the main
Always the main action Always the main action action itself or a
provisional remedy
Directed against a
tribunal, corporation,
Directed against a
board, officer or person Directed against a party
tribunal, corporation,
exercising judicial, to the action
board, officer or person
quasi-judicial or
ministerial functions
Filed to compel the
Filed to compel the
Filed to prevent the respondent to perform
respondent to perform a
respondent from an act which is not
ministerial and legal
usurping jurisdiction necessarily a legal and
duty
ministerial duty

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 May be brought in the May be brought in the
May be brought in the
SC, CA, SC, CA, Sandiganbayan
RTC
Sandiganbayan or RTC or RTC

Requisites
Q: State the requisites of certiorari.
ANS: The following are the requisites of a petition for certiorari:
a. The writ is directed against a tribunal, board or officer exercising judicial or
quasi-judicial functions;
b. Such tribunal, board or officer has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to excess or lack of
jurisdiction;
c. There must be no appeal or any plain, speedy and adequate remedy in the
ordinary course of law (Abedes v. Court of Appeals, G.R. No. 174373,
October 15, 2007);
d. That the petition is verified and must allege facts with certainty;
e. The petition must be accompanied with certified true copies of the
judgment or order sought to be annulled and copies of all pleadings and
documents relevant and pertinent thereto (Sec. 1, Rule 65).

Q: What are the requisites of a petition for the issuance of a writ of

prohibition?
ANS: They are the following:
a. There must be a controversy;
b. The respondent is exercising judicial, quasi-judicial or ministerial functions;
c. Respondent acted without or in excess of jurisdiction, or acted with grave
abuse of discretion amounting to lack or excess of jurisdiction;
d. There must be no appeal or other plain, speedy and adequate remedy
(Sec. 2, Rule 65).

Q: What are the requisites of a valid mandamus?

ANS: The requisites of mandamus are the following:
a. There must be a clear legal right or duty in favor of the petitioner;
b. The act to be performed must be within the powers of the respondent to
perform;
c. The respondent must be exercising a ministerial duty;
d. The duty or act to be performed must be existing; and
e. There is no other plain, speedy and adequate remedy in the ordinary
course of law (Sec. 3, Rule 65).

Q: What is meant by the phrase “exercising judicial functions”?

ANS: A body or officer may be said to be exercising judicial functions when such
officer or body is clothed with authority and undertakes to determine what the law is
and what the legal rights of the parties are with respect to the matter in controversy
(Herrera, p.264, citing Moran).

Q: What is a quasi-judicial function?

ANS: A quasi-judicial function is a term which applies to the action, discretion, etc.,
of public administrative officers or bodies, who are required to investigate facts, or
ascertain the existence of facts, hold hearings, and draw conclusions from them, as
a basis for their official action and to exercise discretion of a judicial nature
(Villarosa v. Commission on Elections, et al., G.R. No. 133927, November 29,
1999).

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Q: Distinguish between ministerial duty and discretionary duty.
ANS: Ministerial duty is that which is so clear and specific as to leave no room for
the exercise of discretion in its performance (Compania General de Tabacos de
Filipinas v. French, G.R. No. L-14027, November 8, 1918); discretionary duty is that
which by its nature requires the exercise of judgment (Rodriguez v. De la Rosa,
C.A.-G.R. SP-00542, October 27, 1971).

Q: What is grave abuse of discretion?

ANS: Grave abuse of discretion means “such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.” It is not sufficient that a tribunal, in the exercise of its power,
abused its discretion; such abuse must be grave (Benito v. Commission on
Elections, et al., G.R. No. 134913, January 19, 2001).

When Petition for Certiorari, Prohibition, and Mandamus is Proper

Q: What are the grounds for the filing of a petition for the issuance of a writ of
certiorari?
ANS: That the tribunal, board or officers has acted:
a. Without or in excess of jurisdiction; or
b. With grave abuse of discretion amounting to lack or excess of jurisdiction
(Sec. 1, Rule 65).

Q: When may a special civil action for certiorari be availed of?

ANS: As a general rule, the special civil action of certiorari may only be availed
when the lower court or any of its officers, acted without or in excess of jurisdiction
or with grave abuse of discretion, and there is no plain, speedy, and adequate
remedy in the ordinary course of law. When an appeal is in itself a sufficient and
adequate remedy that would promptly relieve the petitioner from the injurious
effects of the order or judgment complained of, existence of that appeal would bar
the institution of the remedy of certiorari (Santos, et al. v. Cruz, et al., G.R. Nos.
170096-97, March 3, 2006).

Q: When may a person file a petition for prohibition?

ANS: When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are:
a. Without or in excess of its or his jurisdiction, or
b. With grave abuse of discretion amounting to lack or excess of jurisdiction, and
c. There is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law.

An aggrieved party may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered:
a. Commanding the respondent to desist from further proceedings in the action or
matter specified therein, or
b. Otherwise granting such incidental reliefs as law and justice may require (Sec. 2,
Rule 65).

Q: Is a petition for prohibition the proper remedy in assailing implementing

rules and regulations issued in the exercise of quasi-legislative functions?

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ANS: No. Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions (Holy Spirit Homeowners Association, Inc.
v. Defensor, G.R. No. 163980, August 3, 2006).

Q: When may a petition for mandamus be filed?

ANS: When any tribunal, corporation, board, officer or person:
a. Unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or
b. Unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled, and
c. There is no other plain, speedy and adequate remedy in the ordinary
course of law.

The person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be
specified by the court:
a. To do the act required to be done to protect the rights of the petitioner, and
b. To pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent (Sec. 3, Rule 65).

Q: In 1996, Congress passed Republic Act No. 8189, otherwise known as the
Voter's Registration Act of 1996, providing for computerization of elections.
Pursuant thereto, the COMELEC approved the Voter's Registration and
Identification System Project. It issued invitations to pre-qualify and bid for
the project. After the public bidding, Fotokina was declared the winning
bidder with a bid of PhP6 billion and was issued a Notice of Award. But
COMELEC Chairman Gener Go objected to the award on the ground that
under the Appropriations Act, the budget for the COMELEC's modernization
is only PhP1 billion. He announced to the public that the VRIS project has
been set aside. Two Commissioners sided with Chairman Go, but the majority
voted to uphold the contract. Meanwhile, Fotokina filed with the RTC a
petition for mandamus compel the COMELEC to implement the contract. The
Office of the Solicitor General, representing Chairman Go, opposed the
petition on the ground that mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority Commissioners filed a
manifestation that Chairman Go was not authorized by the COMELEC En
Banc to oppose the petition. Is a petition for mandamus an appropriate
remedy to enforce contractual obligations? (2006 Bar)
ANS: No. It is a settled rule that mandamus will lie only to compel the performance
of a ministerial duty but does not lie to require anyone to fulfill contractual
obligations. Only such duties as are clearly and peremptorily enjoined by law or by
reason of official station are to be enforced by the writ (G&S Transport Corp. v.
Court of Appeals, G.R. No. 120287, May 28, 2002; Answers to the Bar Examination
Questions by the UP Law Complex and Philippine Law Schools Association 2006).

Injunctive Relief
Q: Will the mere filing of a petition for certiorari, prohibition or mandamus
interrupt the principal case?
ANS: No. The petition shall not interrupt the course of the principal case unless a
temporary restraining order or a writ of preliminary injunction has been issued
against the public respondent from further proceeding in the case (Sec. 7, Rule 65).

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Q: After a petition for certiorari, prohibition or mandamus has been filed, and
in the absence of a TRO or a preliminary injunction, what shall the public
respondent do with the principal case?
ANS: The public respondent shall proceed with the principal action within 10 days
from the filing of a petition for certiorari, absent a TRO or a preliminary injunction, or
upon its expiration. Failure to proceed with the principal case may be a ground for
an administrative charge (A.M. No. 07-7-12-SC).

Q: Which court may grant injunctive relief in actions for certiorari, prohibition
and mandamus?
ANS: The court in which the petition is filed may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties pending such
proceedings (Sec. 7, Rule 65).

Exceptions to Filing of Motion for Reconsideration before Filing Petition

Q: Is a motion for reconsideration required to be filed before a petition for
certiorari, prohibition and mandamus may be availed of as a remedy?
ANS: As a general rule, yes. However, the following have been recognized as
exceptions to the rule:
a. Where the order is a patent nullity, as where the court a quo has no jurisdiction;
b. Where the questions raised in the certiorari proceedings have been duly raised
and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court;
c. Where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government or of the petitioner;
d. Where the subject matter of the action is perishable;
e. Where, under the circumstances, a motion for reconsideration would be useless;
f. Where petitioner was deprived of due process and there is extreme urgency for
relief;
g. Where, in a criminal case, relief from an order of arrest is urgent and the granting
of such relief by the trial court is improbable;
h. Where the proceedings in the lower court are a nullity for lack of due process;
i. Where the proceedings was ex parte or in which the petitioner had no opportunity
to object; and
j. Where the issue raised is one purely of law or where public interest is involved
(Abraham v. NLRC, G.R. No. 143823, March 6, 2001).

Reliefs the Petitioner is entitled to

Q: State the reliefs to which petitioner is entitled in an action for certiorari.
ANS: The court shall annul the judgment or modify the proceedings subject of the
petition, and grant such incidental reliefs as law and justice may require (Sec. 1,
Rule 65).

Q: If the petition for prohibition is granted, what reliefs shall petitioner be

entitled to?
ANS: If the petition for prohibition is granted, the court shall command the
respondent to desist from further proceedings in the action or matter specified in the
petition, or otherwise grant such incidental reliefs as law and justice may require
(Sec. 2, Rule 65).

Q: What shall the court do if the petition for mandamus is granted?

108
 ANS: If the petition for mandamus is granted, the court shall order the respondent
to immediately or at some other time specified by the court, to do the act required to
be done to protect the rights of the petitioner and to pay the damages sustained by
the latter, by reason of the wrongful acts of the respondent (Sec. 3, Rule 65).

Actions/Omissions of MTC/RTC in Election Cases

Q: What is the rule on acts or omissions of the MTC or RTC in election cases?
ANS: In election cases involving an act or an omission of a municipal or a regional
trial court, the petition shall be filed exclusively with the COMELEC, in aid of its
appellate jurisdiction (A.M. No. 07-7-12-SC).

When and Where to File the Petition

Q: Within what period may a petition for certiorari, prohibition or mandamus
be filed?
ANS: The petition shall be filed not later than 60 days from notice of the judgment,
order or resolution. In case a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the 60-day period shall be counted from
notice of the denial of said motion (Sec. 4, Rule 65).

Q: In what court shall a petition for certiorari, prohibition or mandamus be

filed?
ANS: The petition shall be filed in the SC or, if it relates to the acts or omissions of
a lower court or of a corporation, board, officer or person, in the RTC exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be
filed in the CA or in the Sandiganbayan, whether or not the same is in aid of its
appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these Rules, the petition shall be filed in and
cognizable only by the CA (Sec. 4, Rule 65).

Effects of Filing an Unmeritorious Petition

Q: What are the grounds for the dismissal of the petition?
ANS: The court may dismiss the petition if it finds it to be:
a. Patently without merit; or
b. Prosecuted manifestly for delay; or
c. If the questions raised are too unsubstantial to require substantiation.

NOTE: In such event, the court may award in favor of the private respondent
treble costs solidarily against the petitioner and counsel, in addition to
subjecting the counsel to administrative sanctions (Sec. 8, Rule 65).

H.QUO WARRANTO
Q: What is a quo warranto?
ANS: It is a prerogative proceeding or writ issued by the court to determine the right
to the use or exercise of a franchise or office and to oust the holder from its
enjoyment, if his claim is not well- founded, or if he has forfeited his right to enjoy
the privilege (Fortuno v. Palma, G.R. No. 70203, December 18, 1987).

Q: Against whom may a quo warranto be filed?

ANS: A quo warranto may be filed against:
a. A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
b. A public officer who does or suffers an act which by the provision of law,
constitutes a ground for the forfeiture of his office;

109
 c. An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act (Sec. 1, Rule
66).

Q: Distinguish between quo warranto and mandamus.

ANS: The distinctions are the following:
a. Quo warranto is the remedy to try that right to an office or franchise;
mandamus does not lie to try disputed titles but merely to enforce clear
legal duties;
b. Where there is usurpation or intrusion, quo warranto is the proper remedy;
where, however, the respondent, without claiming any right to an office,
excluded the petitioner therefrom, the remedy is mandamus;
c. Quo warranto tests the title to one’s office claimed by another and has as
its object the ouster of the holder from its enjoyment, while mandamus
avails to enforce clear legal duties and not to try disputed titles (Herrera, p.
372).

Distinguish from Quo Warranto in the Omnibus Election Code

Q: Distinguish quo warranto under the Rules of Court from quo warranto
under the Omnibus Election Code.
ANS: The differences are the following:

DIFFERENCES
Quo Warranto under Quo Warranto under the
Rule 66 Omnibus Election Code
A prerogative writ by which the
government can call upon any Purpose is to contest the right of
person to show by what title he an elected public officer to hold
holds a public office or exercises public office.
a public franchise.
The grounds are ineligibility or
The grounds are usurpation,
disqualification to hold public
forfeiture or illegal association.
office.
Action must be commenced within
Petition must be filed within 10
1 year from the cause of ouster or
days from the proclamation of
from the time the right of petitioner
the candidate.
to hold office arose.
Petitioner must be the
government or the person entitled
May be filed by any voter even if
to the office and who would
he is not entitled to the office.
assume the same if his action
succeeds.
Person adjudged entitled to the
office may bring a separate action Actual or compensatory
against the respondent to recover damages are recoverable.
damages.

When Government may commence an Action against Individuals

Q: When may the Solicitor General or public prosecutor file a petition for quo
warranto?
ANS: The Solicitor General or public prosecutor may file the petition in the following
cases:

110
 a. When directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the preceding
section can be established by proof, must commence such action (Sec. 2, Rule
66).
b. With the permission of the court in which the action is to be commenced, at the
request and upon the relation of another person; but in such case the officer
bringing it may first require an indemnity for the expenses and costs of the action
in an amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought (Sec. 3, Rule 66).

When Individual may Commence an Action

Q: When may an individual file a quo warranto proceeding?
ANS: A person claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another may bring an action therefor in his own
name (Sec. 5, Rule 66).

Judgment in Quo Warranto Action

Q: What is the tenor of the judgment if there is usurpation of office?
ANS: Judgment shall be rendered that the respondent be ousted and excluded
from the office and that the petitioner or relator to recover his costs. Such further
judgment may be rendered determining the respective rights in and to the public
office, position or franchise of all the parties to the action as justice requires (Sec. 9,
Rule 66).

Rights of a Person Adjudged Entitled to Public Office

Q: What are the rights of a person adjudged entitled to the public office?
ANS: The person’s rights are the following:
a. He may take upon himself the execution of the office;
b. He may demand from respondent all the books and papers appertaining to
the office to which the judgment relates;
c. He may bring an action for damages against respondent sustained by him
by reason of the usurpation (Sec. 10, Rule 66).

I.EXPROPRIATION
Q: What is expropriation?
ANS: Expropriation is the procedure for enforcing the right of eminent domain
(Napocor v. Court of Appeals, G.R. No. 106804, August 12, 2004, citing Herrera).

Q: What is the power of eminent domain?

ANS: It is the authority and right of the state, as sovereign, to take private property
for public use upon observance of due process of law and payment of just
compensation (Visayan Refining Co. v. Camus, G.R. No. L-15870, December 3,
1919)

Matters to Allege in the Complaint for Expropriation

Q: What matters shall be alleged in a complaint for expropriation?
ANS: The verified complaint shall state:
a. The right of the plaintiff to expropriation and the purpose thereof;
b. A description of the real or personal property sought to be expropriated;
and
c. The names of all persons owning or claiming to own, or occupying, any
part of the property or interest therein, showing as far as practicable the
interest of each defendant.

111
 d. Averment that the plaintiff cannot, with accuracy, identify the real owners, if
applicable (Sec. 1, Rule 67).

Two Stages in Every Action for Expropriation

Q: What are stages in expropriation?
ANS: There are two stages in an action for expropriation.
a. The first is concerned with the determination of the authority of the plaintiff
to exercise the power of eminent domain and the propriety of its exercise in
the context of the facts involved in the suit;
b. The second phase of the eminent domain action is concerned with the
determination by the Court of “the just compensation for the property
sought to be taken” (Municipality of Biñan v. Garcia, G.R. No. 69260,
December 22, 1989).

When Plaintiff can Immediately Enter into Possession of the Real Property, in
Relation to R.A. No. 8974
Q: When may the plaintiff take immediate possession of the property sought
to be expropriated?
ANS: The plaintiff may enter upon the property immediately upon the filing of the
complaint with due notice to the defendant and after making a deposit with the
proper government authority. The deposit shall be in an amount equivalent to the
assessed value of the real property for the purposes of taxation (Sec. 2, Rule 67).
Upon compliance with the requirements the issuance of the writ of possession
becomes ministerial (Biglang-Awa v. Bacalla, G.R. Nos. 139927 and 139936,
November 22, 2000).

Q: Is Rule 67 the solitary guideline through which the State may expropriate
private property?
ANS: No. The following rules also apply:
a. Sec. 19 of the Local Government Code governs as to the exercise by local
government units of the power of eminent domain through an enabling
ordinance. Under Sec. 19, the amount of the deposit shall be at least 15%
of the fair market value of the property, based on the current tax
declaration of the property to be expropriated;
b. R.A. No. 8974 covers expropriation proceedings intended for national
government infrastructure projects. But if expropriation is engaged in by the
national government for purposes other than national infrastructure
projects, the assessed value standard and the deposit mode prescribed in
Rule 67 continues to apply (Republic of the Philippines v. Gingoyon, G.R.
No. 166429, December 19, 2005).

New System of Immediate Payment of Initial Just Compensation

Q: What is the new system of immediate payment in cases involving national
government infrastructure projects?
ANS: Under R.A. No.8974 the government is required to make an immediate
payment to the property owner upon the filing of the complaint, in order to be able
to enter the property. The immediate payment shall be equivalent to the sum of (1)
100% of the value of the property based on the current relevant zonal valuation of
the BIR; and (2) the value of the improvements and/or structures as determined
under Sec. 7 of R.A. 8974 (Sec. 4).

Defenses and Objections

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Q: State the rules if the defendant in an expropriation proceedings has no
objection or has an objection thereto.
ANS: The rules are the following:
a. If a defendant has no objections or defense:
i. He may file and serve a notice of appearance and manifestation to that
effect specifically designating or identifying the property in which he
claims to be interested, within the time stated in the summons;
ii. Thereafter, he shall be entitled to notice of all proceedings.
b. If the defendant has objections to the filing or allegations in the complaint
or a defense to the taking of his property, he must serve an answer within
the time stated in the summons. The answer shall:
i. Specifically designate or identify the property in which he claims to have
an interest;
ii. State the nature and extent of the interest claimed; and
iii. Adduce all his objections and defenses to the taking of his property. No
counterclaim, cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading.

NOTE: As a rule, a defendant waives all defenses and objections not alleged
in his answer. However, the court may permit amendments to the answer to
be made not later than 10 days from its filing.

NOTE: In relation to the determination of the just compensation, the

defendant may present evidence as to the amount of compensation to be
paid, whether or not he had previously filed his answer or appeared before
the court (Sec. 3, Rule 67).

Order of Expropriation
Q: What is an order of expropriation?
ANS: An order of expropriation is one issued by the court when (a) the objections
or defenses of the defendant are overruled, or (b) no party appears to defend the
case. The order shall declare that the plaintiff has a lawful right to take the property
for the public use or purpose stated in the complaint, upon payment of just
compensation to be determined as of the date of taking of the property or the filing
of the complaint, whichever came first (Sec. 4, Rule 67).

Q: What is the remedy from an order of expropriation?

ANS: Appeal, and not certiorari, is the proper remedy. The order is by its nature not
interlocutory but final and appealable (Uriarte v. Teodoro, G.R. No. L-2833, April 24,
1950). It shall not however, prevent the court from proceeding with the
determination of the just compensation. In addition, after such order has been
rendered, the plaintiff may no longer be permitted to dismiss or discontinue the
proceedings except on such terms as the court deems just and equitable (Sec. 4,
Rule 67).

Ascertainment of Just Compensation

Q: What is meant by just compensation?
ANS: Just compensation means the equivalent for the value of the property at the
time of its taking. Anything beyond that is more and anything short of that is less,
than just compensation. It means a fair and full equivalent for the loss sustained,
which is the measure of the indemnity, not whatever gain would accrue to the
expropriating entity (J.M. Tuason & Co. Inc. v. The Land Tenure Administration,
G.R. No. L-21064, February 18, 1970).

113
Q: What is the formula for determining just compensation?
ANS: The formula is as follows:
JC means Just Compensation
FMV means Fair Market Value
CD means Consequential Damages
CB means Consequential Benefits

JC = FMV + CD – CB
If CB is MORE than CD then,
JC = FMV

NOTE: In no case shall the consequential benefits exceed the consequential

damages assessed, or the owner be deprived of the actual value of his property so
taken (Sec. 6).

Q: What shall the court do upon rendition of the order of expropriation?

ANS: Once the court has issued an order of expropriation, it shall appoint not more
than 3 competent and disinterested persons as commissioners. They shall
ascertain and report to the court the just compensation for the property sought to be
expropriated (Sec. 5, Rule 67).

Appointment of Commissioners; Commissioner’s Report; Court Action upon

Commissioner’s Report
Q: May the court dispense with the assistance of commissioners in the
determination of just compensation?
ANS: No, it is indispensable. The trial with the aid of commissioners is a substantial
right that may not be done away with capriciously or for no reason at all (Meralco v.
Pineda, G.R. No. L-59791, February 13, 1992).

Q: What shall the commissioners do before entering upon the performance of

their duties?
ANS: The commissioners shall take and subscribe an oath that they will faithfully
perform their duties as commissioners, which oath shall be filed in court with the
other proceedings in the case (Sec. 6, Rule 67).

Q: What is the duty of the commissioners after they have passed upon a
property?
ANS: The commissioners shall file make a report of their proceedings within 60
days from notice of their appointment, subject to extension by the court. The report
shall not be effectual until the court has accepted the report and rendered judgment
in accordance with their recommendations. The parties may file objections to such
report within 10 days from notice thereof (Sec. 7, Rule 67).

Q: What may the court do with the report?

ANS: The court may, after hearing, take any of the following actions with respect to
the commissioners’ report:
a. Accept the report and render judgment in accordance therewith;
b. Recommit the same to commissioners for further report of facts;
c. Set aside the report and appoint new commissioners; or
d. Accept the report in part and reject it in part (Sec. 8, Rule 67).

Rights of Plaintiff upon Judgment and Payment

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 Q: State the rights of the plaintiff upon judgment and payment of just
compensation.
ANS: Upon payment by the plaintiff of the compensation fixed by judgment, with
legal interest thereon, he shall have the right to enter upon the property
expropriated and to appropriate it for the public use or purpose defined in the
complaint, or to retain it if he has previously entered it after having given a deposit
(Sec. 10, Rule 67).

Effect of Recording of the Judgment

Q: What shall the judgment entered in expropriation proceedings contain, and
what is the effect of its recording?
ANS: The judgment shall definitely describe the property or interest expropriated
and the nature of the public use or purpose for which it is taken. When real estate is
expropriated, a certified copy of the judgment shall be recorded in the registry of
deeds of the place where the property is situated. Its effect shall be to vest in the
plaintiff the title to the real estate (Sec. 13, Rule 67).

J.FORECLOSURE OF REAL ESTATE MORTGAGE

Q: What matters must be alleged in an action for foreclosure of mortgage?
ANS: The complaint shall set forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a statement of the date of the
note or other documentary evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants in the action (Sec. 1,
Rule 68).

Q: What is the purpose of foreclosure of real estate mortgage?

ANS: Its purpose is to have the property seized and sold by court order to the end
that the proceeds thereof be applied to the payment of plaintiff's claim (Ocampo v.
Domalanta, G.R. No. L-21011, August 30, 1967).

Judgment on Foreclosure for Payment or Sale

Q: What is the judgment on foreclosure for payment or sale?
ANS: It is the judgment of the court ordering the debtor to pay within 90-120 days
from the entry of judgment after ascertaining the amount due to the plaintiff. The
judgment shall state the following:
a. An ascertainment of the amount due the plaintiff upon the mortgage debt or
obligation with interest and other charges as well as costs;
b. A judgment on the sum found due;
c. An order that the amount found due be paid to the court or to the judgment
creditor within a period of not less than 90 days nor more than 120 days from
entry of judgment; and
d. An admonition that in case of default in such payment that the property shall be
sold at public auction to satisfy the judgment (Sec. 2, Rule 68).

Sale of Mortgaged Property; Effect

Q: State the effect if the defendant fails to pay the amount of the judgment
within the period specified therein.
ANS: The court, upon motion, shall order the sale in the manner and under the
provisions of Rule 39 and other regulations governing the sales of real estate under
execution (Sec. 3, Rule 68).

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Q: What is the effect of the sale of the property mortgaged?
ANS: It shall have the following effects:
a. The sale shall not affect the rights of persons holding prior encumbrances
upon the property or part thereof;
b. When the sale, upon motion, is confirmed by the court, it shall operate to
divest the rights of all the parties in the property and to vest them upon the
purchaser, subject to such rights of redemption as may be allowed by law;
c. When the order of confirmation becomes final or when the period for any
redemption allowed expires, the purchaser or the last redemptioner shall
be entitled to the possession of the property unless a third party is actually
holding the same adversely to the judgment obligor. The purchaser or last
redemptioner may, upon motion, secure a writ of possession from the court
that ordered the foreclosure (Sec. 3, Rule 68).

Disposition of Proceeds of Sale

Q: How shall the amount realized from the foreclosure be disposed of?
ANS: It shall be disposed of as follows:
a. The cost of sale shall be deducted first;
b. After deduction of costs, it shall be paid to the person foreclosing;
c. When there is balance or residue, after paying the mortgage debt, the
same shall be paid to junior encumbrancers in the order of their priority, as
ascertained by the court;
d. If there are no junior encumbrancers, the residue goes to the mortgagor or
his authorized agent, or any other person entitled to it (Sec. 4, Rule 68).

Deficiency Judgment
Q: What is the effect of deficiency after the foreclosure sale?
ANS: Where the proceeds of the foreclosure sale after its application still result in a
balance due to the plaintiff, the latter may ask the court upon motion, to render a
judgment against the defendant for such balance. The court shall render such
judgment upon which execution shall issue immediately if the balance is all due at
the time the judgment is rendered. Otherwise, the plaintiff shall be entitled to the
execution at such time as the remaining balance becomes due (Sec. 6, Rule 68).

Instances when Court cannot Render Deficiency Judgment

Q: State the instances when the court cannot render a deficiency judgment.
ANS: The court cannot render a deficiency judgment in the following cases:
a. Recto Law (par. 3, Art. 1484 of the NCC);
b. When the mortgagor is a non-resident and is not found in the Philippines;
c. When the mortgagor dies, the mortgagee may file his claim with the
probate court (Sec. 7, Rule 86);
d. If mortgagor is a third person but not solidarily liable with the debtor.
e. In case of a mortgage debt due from the estate of a deceased mortgagor
and the mortgage creditor availed of the third remedy which is to rely upon
his mortgage alone and foreclose within the statute of limitations (Sec. 7,
Rule 86).

Judicial Foreclosure versus Extrajudicial Foreclosure

Q: Distinguish judicial foreclosure from extrajudicial foreclosure.
ANS: The differences are the following:
a. As to which law governs, judicial foreclosure is governed by Rule 68; while
extrajudicial foreclosure is governed by Act No. 3135;

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 b. As to whether court intervention is necessary, judicial foreclosure requires
court intervention; in extrajudicial foreclosure, no court intervention is
necessary;
c. As to the nature of redemption, in judicial foreclosure there is only an
equity of redemption and no right of redemption except when the
mortgagee is a banking institution; while in extrajudicial foreclosure, the
right of redemption exists;
d. As to deficiency judgment, the court may render a deficiency judgment in
judicial foreclosure; in extrajudicial foreclosure, there is no deficiency
judgment because there is no judicial proceeding but recover of deficiency
is allowed through an independent action.

Equity of Redemption versus Right of Redemption

Q: Distinguish equity of redemption from right of redemption.
ANS: The differences are the following:
a. Equity of redemption is the right of the defendant mortgagor to extinguish
the mortgage and retain ownership of the property by paying the debt w/in
90 -120 days after the entry of judgment or even after the foreclosure sale
but prior to confirmation. On the other hand, right of redemption is the right
of the debtor, his successor in interest or any judicial creditor or judgment
creditor of said debtor or any person having a lien on the property
subsequent to the mortgage or deed of trust under which the property is
sold to redeem the property w/in 1 year from the registration of the Sheriff’s
certificate of foreclosure sale;
b. As to when it may be exercised, the period for equity of redemption is 90 to
120 days after entry of judgment or even after foreclosure sale but prior to
confirmation; in right of redemption, the period is 1 year from the date of
registration of the certificate of sale;
c. As to governing law, equity of redemption is governed by Rule 68; right of
redemption is governed by Sections 29-31 of Rule 39.

Q: Can there be a right of redemption in judicial foreclosure?

ANS: As a general rule, no. However, there is right of redemption if the mortgagee
is a bank or banking institution as provided by the General Banking Act (GSIS v.
CFI of Iloilo, G.R. No. L-45322, July 5, 1989).

K.PARTITION
Q: What is partition?
ANS: Partition, in general, is the separation, division and assignment of a thing held
in common among those to whom it may belong (Art. 1079, NCC).

Who may File Complaint; Who should be made Defendants

Q: Who may file an action for partition of real estate?
ANS: A person having the right to compel the partition of real estate may file an
action for partition of real estate (Sec. 1, Rule 69).

Q: Who shall be made defendants in an action for partition of real estate?

ANS: The plaintiff shall join as defendants all other persons interested in the
property (Sec. 1, Rule 69).

Matters to Allege in the Complaint for Partition

Q: State the matters that should be alleged in the complaint for partition.
ANS: The complaint for partition must contain the following:

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 a. The nature and extent of the plaintiff’s title;
b. An adequate description of the real estate of which partition is demanded;
c. Join as defendants all other persons interested in the property (Sec. 1,
Rule 69); and
d. A demand for the accounting of the rents, profits, and other income from
the property to which he may be entitled (Sec. 8, Rule 69).

Two Stages in an Action for Partition

Q: What are the two stages in an action for partition?
ANS: The following are the stages:
a. The first stage is the determination of whether or not a co-ownership in fact
exists and a partition is proper (i.e., not otherwise legally proscribed) and
may be made by voluntary agreement of all the parties interested in the
property;
b. The second stage commences when it appears that “the parties are unable
to agree upon the partition” directed by the court. In that event, partition
shall be done for the parties by the court with the assistance of not more
than 3 commissioners (Dadizon v. Bernadas, G.R. No. 172367, June 5,
2009).

Order of Partition and Partition by Agreement

Q: What shall the court do if it finds that the plaintiff is a co-owner and a co-
ownership exists between him and the defendants and that no legal
impediment to a partition exists?
ANS: The court, upon finding that the plaintiff has a right to the partition of the real
estate, shall order the partition of the property (Sec. 2, Rule 69).

Q: What shall the parties do after the court shall have ordered a partition?
ANS: The parties may choose to partition the property among themselves by
proper instruments of conveyance. The court shall confirm the partition so agreed
upon and it shall be recorded in the registry of deeds in the place in which the
property is located (Sec. 2, Rule 69).

Partition by Commissioners; Appointment of Commissioners;

Commissioner’s Report; Court Action upon Commissioner’s Report
Q: What shall the court do if the parties fail to agree upon a partition of the
property?
ANS: The court shall appoint not more than 3 competent and disinterested persons
as commissioners to make the partition, commanding them to set off to the plaintiff
and to each party in interest such part and proportion of the property as the court
shall direct (Sec. 3, Rule 69).

Q: What shall the commissioners do before entering upon the performance of

their duties?
ANS: Before making such partition, the commissioners shall take and subscribe an
oath that they will faithfully perform their duties as commissioners, which oath shall
be filed in court with the other proceedings in the case (Sec. 4, Rule 69).

Q: What is the duty of the commissioners about their proceedings in the

partition?
ANS: The commissioners shall make a full and accurate report of the proceedings
as to the partition, or assignment of the real estate to one of the parties or the sale
of the same (Sec. 6, Rule 69).

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 Q: What may the court do with the commissioners’ report?
ANS: Upon expiration of the period to object to the report or when the parties have
filed their objections or agreement to it, the court may, upon hearing:
a. Accept the report and render a judgment in accordance with it;
b. Recommit the report to the commissioners for further report of facts;
c. Set aside the report and appoint new commissioners; or
d. Accept the report in part and reject it in part (Sec. 7, Rule 69).

Judgment and its Effects

Q: What is the nature of a judgment in partition?
ANS: A judgment ordering partition with damages is final and duly appealable,
notwithstanding the fact, which petitioner seeks to capitalize on, that further
proceedings will still have to take place in the trial court (Lim de Mesa v. Court of
Appeals, G.R. No. 109387, April 25, 1994).

Q: Give an outline of the contents of a judgment in a partition and its effects.

ANS: The following are the contents and effects of a judgment in a partition:
a. If actual partition of property is made, the judgment shall state definitely, by
metes and bounds and adequate description, the particular portion of the
estate assigned to each party. The effect of the judgment shall be to vest in
each party to the action in severalty the portion of the estate assigned to
him;
b. If the whole property is assigned to one of the parties upon his paying to
the others the sum or sums ordered by the court, the judgment shall state
the fact of such payment and of the assignment of the real estate to the
party making the payment, and the effect of the judgment shall be to vest in
the party making the payment the whole of the real estate free from any
interest on the part of the other parties to the action;
c. If the property is sold and the sale confirmed by the court, the judgment
shall state the name of the purchaser or purchasers and a definite
description of the parcels of real estate sold to each purchaser, and the
effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any
of the parties to the action (Sec. 11, Rule 69).

Partition of Personal Property

Q: May partition of personal property be made?
ANS: Yes. The provisions on the rule on partition shall apply to partition of estates
composed of personal property, or of both real and personal property, in so far as
the same may be applicable (Sec. 13, Rule 69).

Prescription of Action
Q: Does the right to demand partition prescribe?
ANS: As a general rule, no. The right of action to demand partition does not
prescribe, except where one of the interested parties openly and adversely
occupies the property without recognizing the co-ownership in which case
acquisitive prescription may set in (Cordova v. Cordova, G.R. No. L-9936, January
14, 1958).

L.FORCIBLE ENTRY AND UNLAWFUL DETAINER

Definitions and Distinction

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Q: What is forcible entry?
ANS: Forcible entry is the possession of a land by the defendant by force,
intimidation, threats, strategy or stealth (Sec. 1, Rule 70).

Q: What is unlawful detainer?

ANS: Unlawful detainer is the unlawful possession of a land by the defendant after
the expiration or termination of the right to hold possession, by virtue of any
contract, express or implied (Sec. 1, Rule 70).

Q: Distinguish forcible entry from unlawful detainer.

ANS: The distinctions are the following:
a. In forcible entry, the plaintiff must prove that he was in prior physical
possession of the premises until he was deprived thereof by the defendant;
while in unlawful detainer, the plaintiff need not have been in prior physical
possession;
b. In forcible entry, the possession of the land by the defendant is unlawful
from the beginning as he acquires possession thereof by force,
intimidation, threat, strategy or stealth, while in unlawful detainer, the
possession of the defendant is inceptively lawful but it becomes illegal by
reason of the termination of his right to the possession of the property
under his contract with the plaintiff;
c. In forcible entry, the law does not require a previous demand for the
defendant to vacate the premises, but in unlawful detainer, the plaintiff
must first make such demand, which is jurisdictional in nature (Muñoz v.
Court of Appeals, G.R. No. 102693, September 23, 1992);
d. In forcible entry, the one-year period is generally counted from the date of
actual entry on the land; in unlawful detainer, from the date of last demand
(Sarona, et al. v. Villegas, et al., G.R. No. L-22984, March 27, 1968) or last
letter of demand (DBP v. Canonoy, G.R. No. L-29422, September 30,
1970).

Distinguished from Accion Interdictal, Accion Publiciana and Accion

Reinvindicatoria
Q: What are the 3 kinds of possessory action on real property?
ANS: The 3 kinds of possessory action on real property are:
a. Accion interdictal which is the summary action for the recovery of physical
possession where the dispossession has not lasted for more than one
year;
b. Accion publiciana which is a plenary action for the recovery of the real right
of possession when the dispossession has lasted for more than one year.
c. Accion reinvindicatoria which is an action for the recovery of ownership,
which necessarily includes the recovery of possession (Reyes v. Sta.
Maria, G.R. No. L-33213, June 29, 1979).

How to Determine Jurisdiction in Accion Publiciana, Accion Reinvindicatoria

And Accion Interdictal
Q: Which court has jurisdiction over the 3 kinds of possessory action?
ANS: The following rules shall be followed in order to determine jurisdiction:
a. All cases of forcible entry and unlawful detainer (accion interdictal)
irrespective of the amount of damages or unpaid rentals sought to be
recovered should be brought to the MTC. However, if not brought within 1
year, RTC has jurisdiction;

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 b. In accion publiciana, the RTC has jurisdiction if the value of the property
exceeds PhP20,000 outside Metro Manila; or exceeds PhP50,000 within
Metro Manila. MTC has jurisdiction if the value of the property does not
exceed the above amounts;
c. In accion reinvindicatoria, the RTC has jurisdiction if the value of the
property exceeds PhP20,000 outside Metro Manila; or exceeds PhP50,000
within Metro Manila. MTC has jurisdiction if the value of the property does
not exceed the above amounts.

Who may Institute the Action and when; Against whom the Action may be
Maintained
Q: Who may file an action for forcible entry or unlawful detainer?
ANS: They are the following:
a. In forcible entry, the person entitled to the possession of the land or
building who is deprived thereto by way of force, intimidation, threats,
strategy or stealth;
b. In unlawful detainer, the lessor, vendor, vendee or other person against
whom the possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any
contract, express or implied (Sec. 1, Rule 70).

Q: Within what period must the action for forcible entry or unlawful detainer
be brought?
ANS: The rules are the following:
a. In the case of forcible entry, the action must be brought within one year
from the date of entry or taking of possession by use of force, intimidation,
threat or strategy. In case possession was taken through stealth, the one
year period may be counted from the demand to vacate upon learning of
the entry by stealth;
b. In case of unlawful detainer the action must be brought with one year from
the last demand in case of the non-payment of rent or from the non-
compliance with the conditions of the lease (Sec. 1, Rule 70).

Q: Against whom may the action for forcible entry or unlawful detainer be
maintained?
ANS: The action of forcible entry and detainer may be maintained against the
person or persons unlawfully withholding or depriving of possession, or any person
or persons claiming under them (Sec. 1, Rule 70).

Pleadings Allowed
Q: What are the pleadings allowed in an action for ejectment?
ANS: Since ejectment is governed by the Rules on Summary Procedure, the only
pleadings allowed to be filed are the complaints, compulsory counterclaims and
cross-claims' pleaded in the answer, and the answers thereto (Sec. 3 [a], Revised
Rules on Summary Procedure).

Action on the Complaint

Q: What action will the court make upon receipt of the complaint?
ANS: The court may, from an examination of the allegations of the complaint and
such evidence as may be attached, dismiss the case outright on any of the grounds
for the dismissal of a civil action apparent therein. If no ground for dismissal is
found, the court shall issue the summons (Sec. 5, Rule 70).

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Q: In a forcible entry action, there was no allegation that respondent or his
co-owners were in prior possession; it was alleged that the land was tenanted
but respondent failed to state when the tenant started possessing the same;
there was also failure to allege when the entry was accomplished or when the
respondent learned of such entry. Will the action prosper?
ANS: No. Failure of respondent to allege the time when unlawful deprivation took
place is fatal because this will determine the start of the counting of the one-year
period for the filing of the summary action of forcible entry. When the complaint fails
to aver facts constitutive of forcible entry or unlawful detainer, as where it does not
state how entry was effected or how and when dispossession started, the action
should either be accion publiciana or reinvindicatoria in the RTC or in the MTC
depending upon the assessed value of the property (Albano, Remedial Law
Reviewer, 2010 ed., p. 765; Sarona v. Villegas, G.R. No. L-22984, March 27, 1968).

Q: What should be alleged in a complaint for unlawful detainer?

ANS: A complaint for unlawful detainer must allege:
a. That the tenant is withholding the possession of the property illegally
because his right to possess under his contract with the landlord had
expired (Sec. 2, Rule 70);
b. That the landlord has made a demand upon the tenant to comply with the
terms of the contract and to return the possession of the property, and that
the tenant failed to satisfy the demand within 15 or 5 days, in case of
buildings;
c. That the complaint must be filed within one year from the date of the
demand (Herrera, p. 546).

When Demand is Necessary

Q: When is demand necessary in unlawful detainer?
ANS: In case the action is for unlawful detainer, demand shall be an essential
requisite before the action may be commenced by the plaintiff. The action may be
brought only after the demand to pay or comply with the conditions of the lease and
to vacate is made and the lessee fails to do so (Sec. 2, Rule 70). Consequently,
both demands – either to pay rent or adhere to the terms of the lease and vacate
are necessary to make the lessee a deforciant in order that an ejectment suit may
be filed. It is the lessor’s demand for the lessee to vacate the premises and the
tenant’s refusal to do so which makes unlawful the withholding of the possession.
Such refusal violates the lessor’s right of possession giving rise to an action for
unlawful detainer (Dio v. Concepcion, G.R. No. 129493, September 25, 1998).

Q: What is the nature of the demand in unlawful detainer?

ANS: It may be in the form of a demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee, or by serving written notice of such
demand upon the person found on the premises if no person be found thereon
(Sec. 2, Rule 70). Demand in unlawful detainer cases can be oral. The law does not
require it to be in writing (Jakihaca v. Sps. Aquino, G.R. No. 83982, January 12,
1990). It is a jurisdictional requirement (Cetus Dev’t Corp. v. Court of Appeals, G.R.
No. 77647, August 7, 1989).

Preliminary Injunction and Preliminary Mandatory Injunction

Q: What is the purpose of a preliminary injunction?
ANS: It is intended to prevent the defendant from committing further acts of
dispossession against the plaintiff (Sec. 15, Rule 70).

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Q: What is the purpose of the preliminary mandatory injunction?
ANS: It is intended to restore plaintiff in his possession (Sec. 20, Rule 70).

Resolving the Defense of Ownership

Q: In an action for unlawful detainer in the MTC, defendant A raised in his
answer the defense that plaintiff Z is not the real owner of the house subject
of the suit, and that he, in fact, is the owner of the house. Does the assertion
of the defendant of the issue of ownership over the subject property divest
the MTC of its jurisdiction?
ANS: No. The assertion of the defendant of the issue of ownership over the subject
property does not divest the inferior court of its jurisdiction and the summary nature
of the proceedings remains (Sps. Refugia v. Court of Appeals, G.R. No.
118284, July 5, 1996).

Q: May the court trying the case for ejectment resolved the issue of
ownership?
ANS: Yes. The court may resolve the issue of ownership only when the issue of
possession cannot be resolved without dealing with the issue of ownership. The
determination is merely provisional and for it to be settled with finality, a separate
action shall be necessary (Sec. 16, Rule 70).

How to Stay the Immediate Execution of Judgment

Q: What steps must the defendant take if he wants to stay the execution of
the judgment?
ANS: Defendant must take the following steps to stay the execution of the
judgment:
a. Perfect an appeal with the RTC;
b. File a supersedeas bond to pay for the rents, damages and costs accruing up to
the time of the judgment appealed from;
c. Deposit periodically with the RTC, during the pendency of the appeal, the
adjudged amount of monthly rent due under the contract or in the absence
thereof, the reasonable value of the use and occupation of the property (Sec. 19,
Rule 70).

Q: X filed a complaint for ejectment against A. It was ruled in favor of X. The

MTC decision was affirmed by the RTC. Is the judgment immediately
executory?
ANS: As a general rule, the judgment of the RTC against the defendant in an
ejectment case is immediately executory (Sec. 21, Rule 70). Where supervening
events (occurring subsequent to the judgment) bring about a material change in the
situation of the parties which makes the execution inequitable, or where there is no
compelling urgency for the execution because it is not justified by the prevailing
circumstances, the court may stay immediate execution of the judgment (City of
Naga v. Asuncion, G.R. No. 174042, July 9, 2008).

Summary Procedure
Q: What rules govern forcible entry and unlawful detainer cases?
ANS: The Rules on Summary Procedure shall apply to all cases of forcible entry
and unlawful detainer, irrespective of the amount of damages or unpaid rentals
sought to be recovered. Where attorney’s fees are awarded, it shall not exceed
PhP20,000 (Sec. 1, Revised Rules on Summary Procedure).

Q: What are the prohibited pleadings in ejectment cases?

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 ANS: They are the following:
a. Motion to dismiss the complaint, except (a) lack of jurisdiction over the subject
matter, or (b) failure to comply with conciliation;
b. Motion for bill of particulars;
c. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension of time to file pleadings, affidavits or any other paper;
f. Memoranda;
g. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
h. Motion to declare the defendant in default;
i. Dilatory motions for postponement;
j. Reply;
k. Third party complaints;
l. Interventions (Sec. 19, Revised Rules on Summary Procedure).

M.CONTEMPT
Q: What is contempt?
ANS: Contempt of court is a defiance of the authority, justice or dignity of the court;
such conduct as tends to bring the authority and administration of the law into
disrespect or to interfere with or prejudice parties, litigants or their witnesses during
litigation (12 Am. Jur. 389). It is a disobedience to the Court by acting in opposition
to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience of the court’s orders, but such conduct as tends to bring the authority
of the court and the administration of law into disrepute or in some manner to
impede the due administration of justice (17 C.J.S. 4).

Q: What is the reason for the power to punish for contempt?

ANS: The reason is that respect of the courts guarantees the stability of their
institution (Cornejo v. Tan, G.R. No. L-2217, March 23, 1950).

Kinds of Contempt
Q: What are the kinds of contempt?
ANS: They are:
a. According to nature:
i. Criminal; and
ii. Civil;
b. According to the manner of commission:
i. Direct; and
ii. Indirect.

Purpose and Nature of Each

Q: Distinguish civil contempt from criminal contempt.
ANS: A civil contempt is the failure to do something ordered to be done by a court
or by a judge in a civil action for the benefit of the opposing party therein. The
delineation line may be drawn from the purpose for which the power is
exercised. Where the primary purpose is to preserve the court’s authority and to
punish for disobedience of its orders, the contempt is criminal. Where the primary
purpose is to provide a remedy for an injured litigant and to coerce compliance with
an order, the contempt is civil (Republic of the Philippines v. Baes, G.R. No.
139464, September 9, 2005).

Q: When is there direct contempt?

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ANS: Direct contempt is committed in the presence of or so near the court or judge
as to obstruct or interrupt the proceedings before it. The following acts constitute
direct contempt:
a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the
proceedings before the same;
b. Disrespect towards the court;
c. Offensive personalities towards others;
d. Refusal to be sworn or to answer as witness;
e. Refusal to subscribe an affidavit or deposition when lawfully required;
f. Acts of a party or counsel which constitute a willful and deliberate forum shopping
(Sec. 1, Rule 71).

Q: What is indirect contempt?

ANS: Indirect contempt is one not committed in the presence of the court and can
be punished only after hearing (People of the Philippines v. Peralta, G.R. No. L-
36506, April 28, 1983).

Remedy against Direct Contempt; Penalty

Q: What is the remedy of a person adjudged in direct contempt?
ANS: The remedy of a person adjudged in direct contempt is not an appeal but a
petition for certiorari or prohibition directed against the court which adjudged him in
direct contempt. Pending the resolution of such petition, the execution of the
judgment for direct contempt may be suspended if the offender files a bond fixed by
the court and conditioned upon his performance of the judgment should the petition
be denied (Sec. 2, Rule 71).

Q: State the penalty for direct contempt.

ANS: The penalty for direct contempt depends upon the court against which the act
is committed,
a. If the act was committed against a Regional Trial Court or a court of equivalent or
higher rank, the penalty is a fine not exceeding PhP2,000.00 or imprisonment not
exceeding 10 days, or both;
b. If the act was committed against a lower court, the penalty is a fine not exceeding
PhP200.00 or imprisonment not exceeding one day, or both (Sec. 1, Rule 71).

Remedy against Indirect Contempt; Penalty

Q: What is the remedy of a person adjudged in indirect contempt?
ANS: The person adjudged in indirect contempt may appeal from the judgment or
final order in the same manner as in criminal cases. The appeal shall not stay the
judgment, unless the offender files a bond in an amount fixed by the court from
which the appeal is taken. Such bond shall be conditioned upon his performance of
the judgment or final order if the appeal is decided against him (Sec. 11, Rule 71).

Q: State the penalty for indirect contempt.

ANS: The penalty for indirect contempt depends upon the level of the court against
which the act was committed.
a. If the act was committed against an RTC or a court of equivalent or higher rank,
the penalty is a fine not exceeding PhP30,000 or imprisonment not exceeding 6
months, or both;
b. If the act was committed against a lower court, the penalty is a fine not exceeding
PhP5,000.00 or imprisonment not exceeding 1 month, or both;
c. If the contempt consists in the violation of a writ of injunction, TRO or a status
quo order, the offender may also be ordered to make complete restitution to the

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 party injured by such violation of the property involved or such amount as may be
alleged and proved (Sec. 7, Rule 71).

How Contempt Proceedings are Commenced

Q: State the modes of commencing a proceeding for indirect contempt.
ANS: Indirect contempt is commenced either through a formal charge initiated by
the court motu proprio or through a verified petition.
a. Charge initiated motu proprio by the court – It is commenced by an order of the
same court or any formal charge requiring the respondent to show cause why he
should not be punished for contempt.
b. Charge initiated by someone other than the court – The charge is commenced by
a verified petition accompanied by the supporting particulars and certified true
copies of documents or papers involved therein. It shall also comply with the
requirements of the filing of an initiatory proceeding for civil actions (certification
against forum shopping) in the court concerned (Sec. 4, Rule 71).

Acts Deemed Punishable as Indirect Contempt

Q: What are the acts that may constitute indirect contempt?
ANS: The following acts are deemed punishable as direct contempt:
a. Misbehavior of an officer of a court in the performance of his official duties
or in his official transactions;
b. Disobedience or resistance to a lawful writ, process, order, or judgment or
any unauthorized intrusion to any real property after being ejected;
c. Any abuse or any unlawful interference w/ the proceedings not constituting
direct contempt;
d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
e. Assuming to be an attorney or an officer of the court without authority;
f. Failure to obey a subpoena duly served;
g. Rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him (Sec. 3, Rule
71).

When Imprisonment shall be Imposed

Q: May a person guilty of contempt be imprisoned?
ANS: Yes. When the contempt consists in the refusal or omission to do an act
which is yet in the power of the respondent to perform, he may be imprisoned by
order of the court concerned until he performs it (Sec. 8, Rule 71).

Contempt against Quasi-Judicial Bodies

Q: May contempt be committed against quasi-judicial bodies?
ANS: Yes. Rule 71 applies to contempt committed against persons or entities
exercising quasi-judicial functions or in case there are rules for contempt adopted
for such bodies or entities pursuant to law, the Rules shall apply suppletorily. The
RTC of the place where the contempt was committed shall have jurisdiction over
such charges as may be filed therefor (Sec. 12, Rule 71). These quasi-judicial
bodies include the:
a. Securities and Exchange Commission (Securities and Exchange Commission v.
Recto, G.R. No. 129521, September 7, 1999). However, “the chairman and
commissioners of the SEC must exercise the power of contempt judiciously and
sparingly with utmost self-restraint” (Ibid.);
b. National Labor Relations Commission (Robosa, et. al. v. NLRC, G.R. No.
176085, February 8, 2012). Article 218 of the Labor Code provides for the rules

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 on direct contempt. The Labor Code, however, requires the labor arbiter or the
Commission to deal with indirect contempt in the manner prescribed under Rule
71 of the Rules of Court (Ibid.).

SPECIAL PROCEEDINGS
I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND
PROCESS
Q: What are the modes of settlement of the estate of a deceased person?
ANS: They are the following:
a. Extrajudicial Settlement of Estate (Sec. 1, Rule 74);
i. Extrajudicial partition
ii. Self-adjudication
b. Summary Settlement of Estate of Small Value (Sec. 2, Rule 74);
c. Judicial Settlement of Estate;
i. Partition (Rule 69)
ii. Probate of Will (Rule 75-79)
d. Petition for Letters of Administration in case of Intestacy (Rule 79).

A.WHICH COURT HAS JURISDICTION

Q: Which court has jurisdiction over the settlement of estate of a deceased
person?
ANS: It depends.
a. In the settlement of the estate, the MTC shall have jurisdiction when the
gross value of the estate does not exceed PhP300,000 (outside Metro
Manila), or does not exceed PhP400,000 (in Metro Manila);
b. If the gross value of the estate exceeds the abovementioned amounts the
action falls within the jurisdiction of the RTC (R.A. No. 7691).

B.VENUE IN JUDICIAL SETTLEMENT OF ESTATE

Q: In what court may the settlement of estate of a deceased person be filed?
ANS: It depends.
a. If the decedent is an inhabitant of the Philippines (whether a citizen or
alien) at the time of his death, the venue of the action shall be the court of
the province or city where he resides at the time of his death;
b. If the decedent is an inhabitant of a foreign country at the time of his death,
the venue of the action shall be in the court of any province where he had
his estate (Sec. 1, Rule 73).

C.EXTENT OF JURISDICTION OF PROBATE COURT

Q: State the nature of the jurisdiction of the trial court in settlement
proceedings.
ANS: The trial court, siting as a probate court, is primarily concerned with the:
a. Administration;
b. Liquidation; and
c. Distribution of the estate (De La Cruz v. Camon, et al., G.R. No. L-21034,
April 30, 1966).

Said court has limited and special jurisdiction and cannot hear and dispose of
collateral matters and issues which may be properly threshed out only in an

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 ordinary civil action (Vda. De Manalo v. Court of Appeals, G.R. No. 129242,
January 16, 2001).

Q: May the probate court pass upon the issue of ownership?

ANS: As a general rule, no. The probate court may not decide a question of title or
ownership. The following are the exceptions:
a. The court may pass upon the issue of ownership for the purpose of including
property in the inventory; or
b. If the interested parties are all heirs, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the
probate court and the rights of third parties are not impaired, then the probate
court is competent to decide the question of ownership (Coca vs. Borromeo, G.R.
No. L-27082, January 31, 1978).

D.POWERS AND DUTIES OF PROBATE COURT

Q: State the powers and duties of a probate court.
ANS: In probate proceedings, the court:
a. Orders the probate of the will of the decedent (Sec. 3, Rule 77);
b. Grants letters of administration of the party best entitled thereto or to any
qualified applicant (Sec. 5, Rule 79);
c. Supervises and controls all acts of administration;
d. Hears and approves claims against the estate of the deceased (Sec. 11,
Rule 86);
e. Orders payment of lawful debts (Sec. 11, Rule 88);
f. Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2,
Rule 89); and
g. Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
h. Declare who are the heirs of the deceased testator and whether or not a
particular party is or should be declared his acknowledged natural child
(Conde v. Abaya, G.R. No. 4275, March 23, 1909).

II. SUMMARY SETTLEMENT OF ESTATES

A.EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN THE HEIRS,
WHEN ALLOWED
Q: How may the estate of a decedent be settled if he left no will and no debts?
ANS: When the decedent left no will nor debts and the heirs are all of age or the
minors are represented by the their judicial or legal representatives, the parties
may, without securing letters of administration, divide the estate among themselves.
The settlement shall be made either in a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action
for partition (Sec. 1, Rule 74).

B.TWO-YEAR PRESCRIPTIVE PERIOD

Q: What is the prescriptive period within which to question the settlement and
distribution of the estate?
ANS: The rules are as follows:
a. If it shall appear at any time within 2 years after the settlement and
distribution of an estate in accordance with the provisions of either of the
first two sections of this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such heir or such other
person may compel the settlement of the estate in the courts for the
purpose of satisfying such lawful participation;

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 b. Within the same time of 2 years, if it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or
other person has been unduly deprived of his lawful participation payable
in money, the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each distributee
shall contribute in the payment thereof (Sec. 4, Rule 74);
c. If on the date of the expiration of the period of same 2-year period, the
person authorized to file a claim is a minor or mentally incapacitated, or is
in prison or outside the Philippines, he may present his claim within 1 year
after such disability is removed (Sec. 5, Rule 74).

Q: To whom does the two-year prescriptive period apply?

ANS: This rule applies only to:
a. Persons who have participated or taken part or had notice of the
extrajudicial partition, and, in addition,
b. When all the persons or heirs of the decedent have taken part in the
extrajudicial settlement or are represented by themselves or through
guardians.

In other words, it is only a bar against the parties who had taken part in the
extrajudicial proceedings, but not against third persons not parties thereto
(Herrera, p. 39).

C.AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR

Q: What may a sole heir do if his predecessor-in-interest left no will?
ANS: When there is only one heir, he may execute an affidavit of self-adjudication
filed in the office of the register of deeds, showing that he is the only heir who is
entitled to the estate of the deceased (Sec. 1, Rule 74).

D.SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED

Q: When may an estate be summarily settled?
ANS: When the decedent dies, whether testate or intestate, and his gross estate
does not exceed PhP10,000.00, a summary proceeding may be had to settle such
estate. It shall have the following requirements:
a. The application must contain an allegation of the gross value of the estate which
does not exceed PhP10,000;
b. A date of hearing shall be set by the court not less than 1 month nor more than 3
months from the date of last publication of the notice of such hearing;
c. There shall be an order of hearing published once a week for 3 consecutive
weeks in a newspaper of general circulation;
d. Notice shall be served upon such interested persons as the court may direct; and
e. If personal property is to be distributed, a bond in an amount fixed by the court
shall be executed conditioned upon the payment of any just claims (Sec. 2, Rule
74).

E.REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT

OF ESTATE
Q: State the remedies of parties aggrieved by an extrajudicial settlement of
estate after the lapse of the 2-year prescriptive period.
ANS: They are:

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 a. An ordinary action for reconveyance of real property may be instituted
against the distributees within the statute of limitations, but not against the
bond (Regalado, Remedial Law Compendium Vol. II, 2008 ed., p. 23);
b. An action to annul a deed of extrajudicial settlement on the ground of fraud
may be filed within 4 years from the discovery of such fraud (Gerona vs.
De Guzman, G.R. No. L-19060, May 29, 1964);
c. In case of the preterition of a compulsory heir in a partition with bad faith,
he may ask for the rescission of such partition (Art. 1104, NCC);
d. Reopening by intervention in summary settlement under Rule 19 which
may be availed of after judgment but before its finality or appeal by the
aggrieved party;
e. Petition for relief on grounds of fraud, accident, mistake, and excusable
negligence

III. PRODUCTION AND PROBATE OF WILL

A.NATURE OF PROBATE PROCEEDING
Q: State the nature of probate proceedings.
ANS: Probate proceedings are:
a. In Rem (Manalo v. Paredes, G.R. No. 24168, September 22, 1925).
b. Mandatory (Guevarra v. Guevarra, G.R. No. L-48840 December 29, 1943),
as no will shall pass either real or personal property unless it is proved and
allowed in the proper court (Sec. 1, Rule 75).
c. Imprescriptible, because of the public policy to obey the will of the testator
(Ibid).
d. The doctrine of estoppel does not apply (Fernandez v. Dimagiba, G.R. No.
L-23638, October 12, 1967).

Q: After Lulu's death, her heirs brought her last will to a lawyer to obtain their
respective shares in the estate. The lawyer prepared a deed of partition
distributing Lulu's estate in accordance with the terms of her will. Is the act of
the lawyer correct? Why? (2005 Bar)
ANS: The act of the lawyer is not correct. The probate of a will is mandatory. Sec.
1, Rule 75 of the Rules of Court provides that no will shall pass either real or
personal estate unless it is proved and allowed in the proper court.

B.WHO MAY PETITION FOR PROBATE; PERSOS ENTITLED TO NOTICE

Q: Who may file a petition for the allowance of a will?
ANS: The following persons may file a petition for the allowance
a. The executor named in the will;
b. The devisee or legatee named in the will;
c. Any other person interested in the estate;
d. The testator himself during his lifetime (Sec. 1, Rule 76).

Q: Who are entitled to notice of the probate proceedings?

ANS: The designated or known heirs, legatees and devisees and the executor or
co-executor shall be entitled to notice of probate. If the notice is sent by mail, it must
be made 20 days before the hearing. If the notice is by personal service, it must be
made 10 days before the hearing. If the testator asks for the allowance of his own
will, notice hall be sent only to his compulsory heirs (Sec. 4, Rule 76).

IV. ALLOWANCE OR DISALLOWANCE OF WILL

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A.CONTENTS OF PETITION FOR ALLOWANCE OF WILL
Q: State the contents of a petition for the allowance of a will.
ANS: A petition for the allowance of a will must show, so far as known to the
petitioner:
a. Jurisdictional facts;
b. The names, ages and residences of the heirs, legatees and devisees;
c. Probable value and character of the property of the estate;
d. The name of the person for whom letters are prayed for;
e. If the will has not been delivered to the court, the person having its custody (Sec.
2, Rule 76).

B.GROUNDS FOR THE DISALLOWANCE OF WILL

Q: What are the grounds for disallowance of a will?
ANS: The will shall be disallowed in any of the following cases:
a. If not executed and attested as required by law;
b. If the testator was insane, or otherwise mentally incapable to make a will,
at the time of its execution;
c. If it was executed under duress, or the influence of fear, or threats;
d. If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
e. If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his
signature thereto (Sec. 9, Rule 76).

C.REPROBATE

Requisites before a will proved abroad would be allowed in the Philippines

Q: May a will proved abroad be allowed in the Philippines? If so, what are the
matters that have to be proven?
ANS: Yes. Where a will has been probated in a foreign country, it may be
reprobated in the Philippines. The following matters have to be proven during the
reprobate proceedings:
a. The due execution of the will in accordance with the foreign laws;
b. The testator has his domicile in the foreign country and not in the Philippines;
c. The will has been admitted to probate in such country;
d. The fact that the foreign tribunal is a probate court; and
e. The laws of a foreign country on procedure and allowance of wills (Herrera,
Special Proceedings and Special Rules Implementing the Family Courts Act of
1997, 2005 ed., p. 75).

Q: What are the effects of reprobate of a will under Rule 77 of the Rules of
Court?
ANS: The following are the effects of a reprobate of a will:
a. The will shall be treated as if originally proved and allowed in Philippine
courts (Sec. 3);
b. Letters testamentary or administration with a will annexed shall extend to
all estates of the testator in the Philippines;
c. After payment of just debts and expenses of administration, the residue of
the estate shall be disposed of as provided by law in cases of estates in
the Philippines belonging to persons who are inhabitants of another state
or country (Sec. 4).

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D.EFFECTS OF PROBATE
Q: State the effects of the allowance of a will.
ANS: Subject to the right of appeal, the allowance of the will shall be conclusive as
to its due execution (Sec. 1, Rule 75).

Q: May the probate court pass upon the intrinsic validity of a will?
ANS: As a general rule, no. In a special proceeding for the probate of a will, the
issue by and large is restricted to the extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law (Pastor, Jr. v. Court of Appeals, G.R. No. L-56340,
June 24, 1983). However, in exceptional cases where the probate of a will might
become an idle ceremony if on its face it appears to be intrinsically void, and where
practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue (Nuguid v. Nuguid, G.R.
No. L-23445, June 23, 1966).

V. LETTERS TESTAMENTARY AND OF ADMINISTRATION

Q: What is meant by letters testamentary?
ANS: Letters testamentary is the appointment issued by a probate court, after the
will has been admitted to probate, to the executor named in the will to administer
the estate of the deceased testator, provided the executor named in the will is
competent, accepts the trust and gives a bond (Sec. 4, Rule 78).

Q: What is the concept of letters of administration?

ANS: Letters of administration is the appointment issued by a court to a competent
person to administer the estate of a deceased who died without a will provided such
person accepts the trust and gives a bond (Albano, p. 831).

A.WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED

Q: When may letters of administration be granted?
ANS: Letters of administration may be granted when:
a. No executor is named in the will; or
b. The executor or executors are:
i. Incompetent; or
ii. Refuse the trust; or
iii. Fail to give bond; or
c. The decedent died intestate (no will) (Sec. 6, Rule 78).

Q: State the preference in the appointment of administrator of an estate.

ANS: A letter of administration shall be granted to the following, in the order of
preference:
a. Surviving spouse or next of kin or their nominee – The surviving husband or wife
or the next of kin, or both, in the discretion of the court, or to such person as such
surviving spouse or next of kin requests to be appointed, if competent and willing
to serve;
b. Principal creditor/s – If the surviving spouse or the next of kin or the person
selected by them be incompetent or unwilling to serve, or if the surviving spouse
or next of kin neglects for 30 days after the death of the decedent to apply for
administration by them or their nominee, any one or more of the principal
creditors, if competent and willing to serve;
c. Stranger – If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select (Sec. 6, Rule 78).

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B.ORDER OF PREFERENCE
Q: Is the order of preference is the appointment of administrator of an estate
absolute?
ANS: No. It is well settled that a probate court cannot arbitrarily and without
sufficient reason disregard the preferential rights of the surviving spouse to the
administration of the estate of the deceased spouse. But, if the person enjoying
such preferential rights is unsuitable, the court may appoint another person. The
determination of a person's suitability for the office of administrator rests, to a great
extent, in the sound judgment of the court exercising the power of appointment and
such judgment will not be interfered with on appeal unless it appears affirmatively
that the court below was in error (Sioca v. Garcia, G.R. No. L-20080, March 27,
1923).

C.OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS

FILING OF PETITION FOR ADMINISTRATION
Q: Who may oppose the issuance of letters testamentary?
ANS: Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein as executors, or any of
them, and the court after hearing upon notice shall pass upon the sufficiency of
such grounds. The opposition may include with it a petition for the issuance of
letters administration with a will annexed (Sec. 1, Rule 79).

D.POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS;

RESTRICTIONS ON THE POWERS
Q: State the powers and duties of executors and administrators.
ANS: Executors and administrators have the following powers:
a. To have access to, and examine and take copies of books and papers
relating to the partnership in case of a deceased partner;
b. To examine and make invoices of the property belonging to the partnership
in case of a deceased partner;
c. To maintain in tenantable repairs, houses and other structures and fences
and to deliver the same in such repair to the heirs or devisees when
directed so to do by the court;
d. To make improvements on the properties under administration with the
necessary court approval except for necessary repairs;
e. To possess and manage the estate when necessary:
i. For the payment of debts;
ii. For the payment of expenses of administration (Rule 84).

Q: What are the restrictions on the powers of an executor or administrator?

ANS: Executors or administrators CANNOT:
a. Acquire by purchase, even at public or judicial auction, either in person or
mediation of another, the property under administration (Art. 1491, NCC);
b. Borrow money without authority of the court;
c. Speculate with funds under administration;
d. Lease the property for more than one year (Regalado, p. 65);
e. Continue the business of the deceased unless authorized by the court;
f. Profit by the increase or decrease in the value of the property under
administration;
g. Exercise the right of legal redemption over a portion of the property owned
in common sold by one of the other co-owners (Caro v. Court of Appeals,
G.R. No. L-46001, March 25, 1982);

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 h. Enter into any transaction involving the estate without any prior approval of
the court, when the estate of the deceased is already the subject of a
testate or intestate proceeding (Estate of Olave v. Reyes, G.R. No. L-
29407 July 29, 1983).

E.APPOINTMENT OF A SPECIAL ADMINISTRATOR

Q: When may the probate court appoint a special administrator?
ANS: A special administrator shall be appointed when:
a. There is delay in the grant of letters due to any cause including appeal in
the probate of the will (Sec. 1, Rule 80); or
b. The executor is a claimant of the estate he represents, in which case the
special administrator shall have the same powers as that of a general
administrator (Sec. 8, Rule 86).

NOTE: Unless emergency situations threatening the dissipation of the assets

of an estate are present, a special administrator may not be appointed
without complying with the notice requirement under Rule 76, Sections 3 and
4 (De Guzman v. Angeles, G.R. No. 78590, June 20, 1988).

Q: What are the powers and duties of a special administrator?

ANS: A special administrator has the following powers and duties:
a. To take possession and charge of the goods, chattels, rights, credits, and
estate of the deceased and preserve the same for the executors or
administrator afterwards appointed;
b. To commence and maintain suits as administrator
c. To sell only such perishable and other property as the court orders sold. To
pay such debts of the deceased only upon orders of the court (Sec. 2, Rule
80).

F.GROUNDS FOR REMOVAL OF ADMINISTRATOR

Q: State the grounds for the removal of an executor or administrator.
ANS: The following are the grounds for removal of an executor or administrator:
a. Neglect to render accounts (within 1 year and when required by the court);
b. Neglect to settle the estate according to the rules;
c. Neglect to perform an order or judgment of the court or a duty expressly
provided by these rules;
d. Absconding;
e. Insanity;
f. Incapability; or
g. Unsuitability to discharge the trust (Sec. 2, Rule 82).

VI. CLAIMS AGAINST THE ESTATE

Q: What are the claims that may be filed against the estate of the decedent?
ANS: They are:
a. All claims for money against the decedent, arising from contract, express
or implied, whether the same be due, not due, or contingent;
b. All claims for funeral expenses and expense for the last sickness of the
decedent; and
c. Judgment for money against the decedent (Sec. 5, Rule 86).

A.TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS

Q: Within what period shall the claims against the estate of the decedent be
filed?

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 ANS: Claims must be filed within the time fixed in the notice to the creditors. The
period shall not be more than 12 months nor less than 6 months after the date of
the first publication (Sec. 2, Rule 86).

Q: State the effect if a claimant does not file his claim against the estate of the
decedent within the period prescribed by law.
ANS: Failure to do so shall bar the claim forever (Sec. 5, Rule 86).

Q: Is the rule absolute?

ANS: No. The exceptions to the rule are the Belated Claims. These are claims not
filed within the original period fixed by the court. On application of a creditor who
has failed to file his claim within the time previously limited at any time before an
order of distribution is entered, the court may, for cause shown and on such terms
as are equitable, allow such claim to be filed within a time not exceeding 1 month
from the order allowing belated claims (Sec. 2, Rule 86).

B.STATUTE OF NON-CLAIMS
Q: What is the statute of non-claims?
ANS: The statute of non-claims is the term used to refer to the provisions of Rule
86 in fixing the period for the filing of claims against the estate of the decedent
(Santos v. Manarang, G.R. No. L-8235, March 19, 1914).

Q: Between the statute of non-claims and the statute of limitation, which will
prevail?
ANS: Insofar as claims against the estates of deceased persons are concerned, the
statute of non-claims supersedes the statute of limitations. Hence, if a debtor dies,
his creditors must present their claims, whether the same be due, not due or
contingent, in the settlement proceeding of the estate of the deceased debtor within
the time provided in the statute of non-claims, or the same shall be barred forever
(Albano, p. 856 citing In Re: Estate of De Dios, G.R. No. L-7940, March 27, 1913).

C.CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE

Q: What shall the executor or administrator do if he has a claim against the
estate of the decedent?
ANS: The executor or administrator shall give notice in writing to the court of such
claim. The court shall then appoint a special administrator who shall, in the
adjustment of the claim, have the same power and be subject to the same liability
as a general administrator or executor. The court may order the claiming
administrator/executor to pay the special administrator the necessary funds to
defend such claims (Sec. 8, Rule 86).

D.PAYMENT OF DEBTS
Q: Give an outline on how the executor or administrator shall pay the debts of
the estate of the decedent.
ANS: The following rules shall be followed:
a. Where the estate is sufficient to pay all the debts of the decedent, the
executor or administrator shall pay them within the time limited for that
purpose (Sec. 1, Rule 88);
b. Where the will provides for the property which shall be used in the payment
of the debts, such debts will be paid according to the provisions of the will
(Sec. 2, Rule 88);

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 c. Where the property stipulated is not sufficient or where no stipulation was
made, the debt shall first be paid using personal property not disposed of,
and if still lacking, from the real property not disposed of by will (Ibid.);
d. Where devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have been settled
and paid, the court may order them, after hearing, to pay the debts based
on the contributive share they received (Sec. 6, Rule 88);
e. The executor or administrator shall retain sufficient estate to pay contingent
claims when the same becomes absolute (Sec. 4, Rule 88).

VII. ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
A.ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND
ADMINISTRATORS
Q: State the actions which may be brought against the executor or
administrator.
ANS: The following actions may be commenced directly against the executor or
administrator:
a. Recovery of real or personal property or any interest therein from the estate;
b. Enforcement of a lien on the abovementioned; or
c. An action to recover damages from any injury to a person or property, real or
personal (Sec. 1, Rule 87).

Q: What actions may not be brought against the executor or administrator?

ANS: No action upon a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator (Sec. 1, Rule 87).

Q: State the action which may be brought by an executor or administrator.

ANS: For the recovery or protection of the property or rights of the deceased, an
executor or administrator may bring or defend, in the right of deceased, actions for
causes which survive (Sec. 2, Rule 87).

B.REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR THE

RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED
Q: State the requisites before a creditor may bring an action for the recovery
of properties fraudulently disposed of by the decedent.
ANS: They are the following:
a. There is a deficiency of assets in the hands of an executor or administrator
for the payment of debts and expenses of administration;
b. The deceased in his lifetime had made fraudulent conveyance of his
properties, real or personal, or a right or interest therein, or a debt or credit;
c. The conveyance was done with the intent to defraud his creditors or to
avoid any right, debt or duty, or credit;
d. By law, the conveyance would be void as against his creditors and the
subject of the attempted conveyance would be liable to attachment in his
lifetime (Sec. 9, Rule 88);
e. The executor or administrator has shown no desire to file action or failed to
institute the same within a reasonable time;
f. Leave is granted by the court to the creditor to file the action;
g. A bond is filed by the creditor; and

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 h. The action by the creditor is in the name of the executor or administrator.
However, the last three requisites may be dispensed with when the grantee
of the fraudulent conveyance is the executor or administrator himself. In
such case the action should be in the name of all the creditors (Sec. 10,
Rule 88).

VIII. DISTRIBUTION AND PARTITION

A.LIQUIDATION
Q: Define liquidation.
ANS: Liquidation refers to the determination of all the assets of the estate and the
payment of all the debts and expenses (Bernardo v. Court of Appeals, G.R. No. L-
18148, February 28, 1963).

Q: Outline the steps for distribution and partition of the estate of the
decedent.
ANS: The steps for distribution and partition are the following:
a. After the debts, funeral charges, and expenses of administration, the
allowance to the widow, and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate
to the persons entitled to the same (Sec. 1, Rule 90);
b. No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributees, or any
of them, give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs (Ibid.);
c. Questions as to advancement made, or alleged to have been made, by the
deceased to any heir may be heard and determined by the court having
jurisdiction of the estate proceedings (Sec. 2, Rule 90);
d. Expenses of partition may be paid by the executor or administrator out of
the assets in his hands of sufficient; otherwise, they shall be paid by the
parties in proportion to their respective shares or interest (Sec. 3, Rule 90);
e. Certified copies of final orders and judgments of the court relating to the
real estate or the partition thereof shall be recorded in the registry of deeds
of the province where the property is situated (Sec. 4, Rule 90);
f. Controversies as to who are the lawful heirs of the deceased or as to the
distributive shares of each shall be heard and decided as in ordinary cases
(Sec. 1, Rule 90).

B.PROJECT OF PARTITION
Q: What is a project of partition?
ANS: It is a document prepared by the executor or administrator setting forth the
manner in which the estate of the deceased is to be distributed among the heirs. If
the estate is a testate estate, the project of partition must conform to the terms of
the will; if intestate, the project of partition must be in accordance with the
provisions of the Civil Code (Albano, p. 875, citing Camia de Reyes v. Reyes de
Ilano, G.R. No. L-42092, October 28, 1936).

The heirs may, by agreement, submit a project of partition to serve as a basis for
the order of distribution. The heirs who disagree may submit a counter-project of
partition. In approving a project of partition, it is not necessary for the court to state
the specific property adjudicated to an heir, but may award the same to the heirs

137
 pro indiviso shares. If they cannot then agree on their respective specific
participations, they can resort to an action for partition under Rule 69.

C.REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE

Q: What is the remedy of an heir who is entitled to receive his distributive
share from the residue but was not given the same?
ANS: It depends:
a. If he is excluded from the proceedings, he may move for the reopening of
the proceedings before the order declaring the same closed has become
final and executory.
b. If he is not excluded, but only has not received his distributive share under
the project of partition, the remedy is to file a motion with the probate court
for the delivery to him of his share of the estate.
c. If the estate proceedings have already closed, he should file a motion for
the reopening of the proceeding, within the prescriptive period. The remedy
is not to file an independent action for annulment of the project of partition
(Guilas v. Judge of CFI Pampanga, G.R. No. L-26695, January 31, 1972).

D.INSTANCES WHEN THE PROBATE COURT MAY ISSUE WRIT OF EXECUTION

Q: May the probate court issue a writ of execution?
ANS: As a general rule, no. Its orders usually refer to the adjudication of claims
against the estate which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The probate court as such, does not
render any judgment enforceable by execution (Dinglasan v. Ang Chia, G.R. No. L-
3342, April 18, 1951).

NOTE: The following are the only instances when the probate court may issue a
writ of execution:
a. To enforce the contributive share of the devisees, legatees or heirs when they
have entered into prior possession of the estate before the debts and expenses
have been settled and paid (Sec. 6, Rule 88);
b. To enforce the payment of the expenses of partition against the party not paying
for the sum assessed (Sec. 3, Rule 90);
c. To satisfy the costs when a person is cited for examination in the probate
proceedings (Sec. 13, Rule 142).

IX. TRUSTEES
Q: In what instances may a trustee be appointed?
ANS: If a testator has omitted in his will to appoint a trustee in the Philippines, and
if such appointment is necessary to carry into effect the provisions of the will, the
proper Regional Trial Court may, after notice to all persons interested, appoint a
trustee who shall have the same rights, powers, and duties, and in whom the estate
shall vest, as if he had been appointed by the testator. No person succeeding to a
trust as executor or administrator of a former trustee shall be required to accept
such trust.

A.DISTINGUISHED FROM AN EXECUTOR/ADMINISTRATOR

Q: What are the distinctions between a trustee and an
executor/administrator?
ANS: The differences are the following:
a. The accounts of a trustee must be under oath and filed annually; while
accounts of an executor/administrator are not under oath, and except for

138
 initial and final submission of accounts, they shall be filed only at such
times as may be required by the court;
b. A trustee necessary to carry into effect the provisions of a will shall be
appointed by the RTC; the court which has jurisdiction over an executor or
administrator may be the MTC or the RTC;
c. A trustee is appointed to carry into effect the provisions of a will or written
instrument; an executor/administrator is appointed by the court to settle the
estate of a decedent;
d. A trustee may be exempted from filing a bond if provided in the will or if the
beneficiaries requested exemption; an executor/administrator is not
exempted from filing a bond even if such exemption is provided in the will;
e. Trusteeship is terminated upon turning over the property to the beneficiary
after expiration of the trust; while services of an executor/administrator are
terminated upon payment of debts of the estate and distribution of property
to the heirs; and
f. A trustee has no obligation to pay the debts of a beneficiary or trustor;
while an executor/administrator must pay the debts of the estate.

B.CONDITIONS OF THE BOND

Q: State the conditions for the bond of the trustee.
ANS: They are:
a. That the trustee will make and return to the court, at such time as it may
order, a true inventory of all the estate belonging to him as trustee, which
at the time of the making of such inventory shall have come to his
possession or knowledge;
b. That he will manage and dispose of all such estate, and faithfully discharge
his trust in relation thereto, according to law and the will of the testator or
the provisions of the instrument or order under which he is appointed;
c. That he will render upon oath at least once a year until his trust is fulfilled a
true account of the property in his hands and of the management and
disposition thereof, and such other accounts as the court may order; and
d. That at the expiration of his trust, he will settle his accounts in court and
pay over and deliver all the estate remaining in his hands, or due from him
on such settlement, to the person or persons entitled thereto (Sec. 6, Rule
98).

C.REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE

Q: State the requisites for the removal and resignation of a trustee.
ANS: The requisites are the following:
a. In the resignation of a trustee, whether appointed by the court or by a
written instrument, the same shall be allowed if it appears to the court
proper to allow such resignation.
b. The removal shall have the following requisites:
i. A petition filed by the parties beneficially interested;
ii. Notice to the trustee;
iii. Hearing (Sec. 8, Rule 98).

D.GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE

Q: When may a trustee be removed?
ANS: A trustee may be removed on the following grounds:
a. Removal appears essential in the interest of the petitioners;
b. Insanity;
c. Incapability of discharging the trust;

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 d. Unsuitability (Sec. 8, Rule 98).

Q: When may a trustee resign?

ANS: A trustee is at liberty to tender his resignation and apply for his release on the
sole ground of unwillingness to act further in the trust. But the acceptance of the
resignation of a trustee is not a matter of course; due regard must be had for the
interest of the parties to be affected and there must ordinarily be some ground for
discharge other than the mere wish of the trustee to be relieved (90 CJS 182-183).

E.EXTENT OF TRUSTEE’S AUTHORITY

Q: What is the extent of the powers of a trustee?
ANS: The powers of a trustee appointed by a Philippine court cannot extend
beyond the confines of the territory of the Republic of the Philippines. This is based
on the principle that his authority cannot extend beyond the jurisdiction of the
Republic of the Philippines, under whose courts he was appointed. Remotely, the
rule is also based on the rule in international law of the sovereign equality of states
(Herrera, p. 452).

X. ESCHEAT
Q: Defined escheat.
ANS: Escheat is a proceeding where the real and personal property of a deceased
person in the Philippines, who dies without leaving any will and legal heirs,
becomes the property of the State upon his death (Municipal Council of San Pedro,
Laguna v. Colegio de San Jose, Inc., et al., G.R. No. L-45460, February 25, 1938).

A.WHEN TO FILE
Q: When may a petition for escheat be filed?
ANS: If a person dies intestate, seized of real property in the Philippines, leaving no
heir or person by law entitled to the same, an escheat proceeding may be filed
(Sec. 1, Rule 91).

Q: Who may be parties in a petition for escheat?

ANS: They are:
a. An escheat proceeding must be initiated by the government through the
Solicitor General or his representative.
b. All interested parties, especially the actual occupants and the adjacent lot
owners shall be personally notified of the proceeding and given the
opportunity to present their valid claims; otherwise, it will be reverted to the
State (Bermudo v. Intermediate Appellate Court, G.R. No. L-38622,
October 26, 1987);
c. Any person alleging to have a direct right or interest in the property sought
to be escheated, likewise an interested and necessary party, may properly
oppose the petition for escheat or file a claim thereto with the court within
the period provided for (Municipal Council of San Pedro, Laguna v. Colegio
de San Jose, Inc., et al., supra);
d. Under the Unclaimed Balances Law, a depositary bank should be joined as
a respondent in an action for escheat since a decree of escheat would
necessarily deprive it of the use of such deposits (Sec. 3, Act No. 3936;
Republic v. CFI-Manila, G.R. No. L-30381, August 30, 1988).

B.REQUISITES FOR FILING OF PETITION

Q: What are the requisites for the filing of a petition for escheat?
ANS: They are:

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 a. That a person died intestate;
b. He left no heirs or persons by law entitled to the same;
c. The deceased left properties in the Philippines (In re Estate of Lao Sayco,
G.R. No. L-4824, February 13, 1912).

C.REMEDY OF RESPONDENT AGAINST THE PETITION; PERIOD FOR FILING A

CLAIM
Q: What is the remedy of respondent against a petition for escheat?
ANS: When a petition for escheat does not state facts which entitle the petitioner to
the remedy prayed for, and even admitting them hypothetically, it is clear that there
is no ground for the court to proceed to the inquisition provided by law, an interest
party should not be disallowed from filing a motion to dismiss the petition (Herrera,
p. 227-228).

Q: When and by whom may a claim to escheated property be filed?

ANS: A devisee, legatee, heir, widow, widower, or other persons entitled to the
estate, may appear and file a claim thereto with the court within 5 years from the
date of such judgment. Such person shall have possession of and title to the
property, or if it had been sold, the municipality or city shall be accountable for the
proceeds after deducting reasonable charges for the care of the estate. A claim not
made within the 5-year period shall forever be barred (Sec. 4, Rule 91).

XI. GUARDIANSHIP
A.GENERAL POWERS AND DUTIES OF GUARDIANS
Q: State the powers and duties of a guardian.
ANS: The powers and duties of a guardian are the following:
a. To have the care and custody of the person of the ward, and the
management of his estate, or the management of the estate only, as the
case may be (Sec. 1, Rule 96);
b. Pay the debts of the ward (Sec. 2, Rule 96);
c. Settle accounts, collect debts and appear in actions for ward (Sec. 3, Rule
96);
d. Manage the estate of the ward frugally, and apply the proceeds to
maintenance of the ward (Sec. 4, Rule 96);
e. Render a verified inventory within 3 months after his appointment and
annually thereafter, and upon application of interested persons (Sec. 7,
Rule 96);
f. Render to the court for its approval an accounting of the property upon the
expiration of 1 year from his appointment, and as often thereafter as may
be required (Sec. 8, Rule 96).

B.CONDITIONS OF THE BOND OF THE GUARDIAN

Q: State the conditions of the bond of the guardian.
ANS: They are the following:
a. To make and return to the court, within 3 months, a true and complete
inventory of all the estate of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other person for him;
b. To faithfully execute the duties of his trust, to manage and dispose of the
estate according to the rules for the best interests of the ward, and to
provide for the proper care, custody, and education of the ward;
c. To render a true and just account of all the estate of the ward in his hands,
and of all proceeds or interest derived therefrom, and of the management

141
 and disposition of the same, at the time designated by these rules and
such other times as the court directs;
d. At the expiration of his trust, to settle his accounts with the court and
deliver and pay over all the estate, effects, and moneys remaining in his
hands, or due from him on such settlement, to the person lawfully entitled
thereto;
e. To perform all orders of the court by him to be performed (Sec. 1, Rule 94).

C.RULE ON GUARDIANSHIP OVER MINORS

Q: Who may file a petition for the appointment of a guardian for a resident of
the Philippines?
ANS: They are:
a. Any relative;
b. Other persons in behalf of the minor;
c. The minor himself if he is of 14 years of age or over;
d. The Secretary of the DSWD or of the DOH in case of an insane minor who
needs to be hospitalized (Sec. 2, AM-03-02-05-SC).

Q: State the grounds for a petition for guardianship over minors.

ANS: The grounds for the appointment of a guardian over the person or property, or
both, of a minor are the following:
a. Death, continued absence or incapacity of the child’s parents;
b. The suspension, termination or deprivation of parental authority;
c. The remarriage of the surviving parent, if the latter is found unsuitable to exercise
parental authority;
d. When the best interests of the minor so require (Sec. 4, AM-03-02-05-SC).

Q: Who are the persons who may be appointed as guardian of the minor?
ANS: In default of the parents or a court appointed guardian, the court may appoint
one, observing as far as practicable the following order of preference:
a. The surviving grandparent and in case several grandparents survive the court
shall select any of them taking into account all relevant considerations;
b. The oldest brother or sister of the minor, who is over 21 years of age, unless unfit
or disqualified;
c. The actual custodian of the minor, who is over 21 years of age, unless unfit or
disqualified; and
d. Any other person, who in the sound discretion of the court would serve the best
interests of the minor (Sec. 6, AM-03-02-05-SC).

Q: State the grounds for the removal of a guardian.

ANS: They are the following:
a. Insanity;
b. Incapability of discharging the trust;
c. Unsuitability;
d. Wasted or mismanaged the property of the ward;
e. Failure to render an account for 30 days after it is due;
f. Failure to make a return for 30 days after it is due (Sec. 24, AM-03-02-05-
SC).

Q: On what ground may a guardian resign?

ANS: The court may allow the guardian to resign for justifiable causes (Sec. 24,
AM-03-02-05-SC).

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 Q: Upon what grounds may a petition to terminate the guardianship be filed?
ANS: The court motu proprio or upon verified motion of any person allowed to file a
petition for guardianship may terminate the guardianship on the ground that the
ward has come of age or the ward has died (Sec. 25, AM-03-02-05).

XII. ADOPTION
A.DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Q: State the distinctions between domestic adoption and inter-country
adoption.
ANS:
DIFFERENCES
Domestic Adoption
Under the jurisdiction of the
Family Court where adopter
resides.
Trial custody is in the Philippines
for 6 months but court may
reduce period or exempt parties
from trial custody.
Petition for adoption may include
prayer for change of name, or
declaration that child is a
foundling, abandoned,
dependent or neglected child.
Adoptee: Legitimate or
illegitimate child of a spouse or
even a person who is of legal
age may be adopted.
Annexes: Income tax returns,
police clearance, character
reference, family picture, birth
certificate of adopter are not
required to be annexed in the
petition.
Petition must be published at
least once a week for 3
successive weeks in a
newspaper of general circulation
in the province or city where
court is situated.
Application is through a petition
in the Family Court.
Inter-Country Adoption
Under the jurisdiction of the Inter-
Country Adoption Board (ICAB),
but a petition may also be filed
with the Family Court where
adoptee resides which will turn it
over to ICAB.
Trial custody for 6 months is in
the country of adopter and is
mandatory before a decree of
adoption is issued.
Petition for adoption only.
Adoptee: Only a child legally
available for domestic adoption
may be the subject of inter-
country adoption.
Annexes: Income tax returns,
police clearance, character
reference, family picture, birth
certificate of adopter are required
to be annexed in the petition.
No publication requirement.
Application may be through an
agency in the foreign country and
then it will submit the application
to the ICAB.

B.DOMESTIC ADOPTION ACT

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 Effects of Adoption
Q: State the effects of adoption.
ANS: Adoption shall have the following effects:
a. The adopter will exercise parental authority (Sec. 16, R.A. No. 8552);
b. All legal ties between biological parents and the adoptee shall be severed,
except when biological parent is spouse of adopter (Ibid);
c. Adoptee shall be considered legitimate child of adopter for all intents and
purposes (Sec. 17, R.A. No. 8552);
d. Adopters shall have reciprocal rights of succession without distinction from
legitimate filiations (Sec. 18, R.A. No. 8552).

Instances when Adoption may be Rescinded

Q: Who may file the petition for rescission of adoption?
ANS: Under the Domestic Adoption Act, the adopter cannot rescind the adoption.
Only the adoptee or his guardian or counsel may seek its rescission under the
following grounds:
a. Repeated physical violence and verbal maltreatment by the adopter despite
having undergone counseling;
b. Attempt on the life of the adoptee;
c. Sexual assault or violence; or
d. Abandonment or failure to comply with the parental obligations (Sec. 19, R.A. No.
8552).

Effects of Rescission of Adoption

Q: What are the effects of rescission?
ANS: The following are the effects of rescission of adoption:
a. The parental authority of the biological parent of the adoptee, if known, or
the legal custody of the Department shall be restored if the adoptee is still
a minor or incapacitated.
b. The reciprocal rights and obligations of the adopter and the adoptee to
each other shall be extinguished.
c. The successional rights shall revert to its status prior to the adoption, as of
the date of judgment of judicial rescission.
d. Vested rights prior to judicial rescission shall be respected (Sec. 20, R.A.
No. 8552).

C.INTER-COUNTRY ADOPTION
Q: What is inter-country adoption?
ANS: It refers to the socio-legal process of adopting a Filipino child by a foreigner
or a Filipino citizen permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of adoption is issued outside
the Philippines (Sec. 3 [a], R.A. No. 8043).

When Allowed
Q: When is inter-country adoption allowed:
ANS: It is allowed only when the Inter-Country Adoption Board has ensured that all
possibilities for adoption of the child under the Domestic Adoption Act have been
exhausted and that inter-country adoption is in the best interest of the child (Sec. 7,
R.A. No. 8043).

Functions of the RTC

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 Q: What shall the RTC do after finding the petition for adoption to be
sufficient in form and substance and a proper case for inter-country
adoption?
ANS: The RTC shall immediately transmit the petition to the Board for appropriate
action (Sec. 32, Rule on Adoption).

“Best Interest of the Minor” Standard

Q: What is meant by the “best interest of the minor” standard?
ANS: This refers to the totality of the circumstances and conditions as are most
congenial to the survival, protection, and feelings of security of the minor
encouraging to his physical, psychological and emotional development. It also
means the least detrimental available alternative for safeguarding the growth and
development of the minor (Sec. 14, A.M. 04-04-SC).

XIII. WRIT OF HABEAS CORPUS

Q: What is a writ of habeas corpus?
ANS: It is a writ which has been esteemed the best and only sufficient defense of
personal freedom having for its object the speedy release by judicial decree of
person who are illegally restrained of their liberty, or illegally detained from the
control of those who are entitled to their custody (Ballentine’s Law Dictionary, 2nd
ed., p. 569).

Q: To what cases shall a writ of habeas corpus apply?

ANS: The writ shall extend to all cases of illegal confinement or detention by which
any person is deprived of his liberty, or by which the rightful custody of any person
is withheld from the person entitled thereto (Sec. 1, Rule 102).

A.CONTENTS OF THE PETITION

Q: State the contents of the application of a writ of habeas corpus.
ANS: The verified petition must set forth:
a. That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
b. The officer or name of the person detaining another, or if unknown, such
person may be described by an assumed appellation, and the person who
is served with the writ shall be deemed the person intended;
c. The place where the detainee is imprisoned or restrained of his liberty; and
d. A copy of the commitment or cause of the detention, if it can be procured
without impairing the efficiency of the remedy. If no legal authority appears
for the imprisonment, such fact should be stated (Sec. 3, Rule 102).

B.CONTENTS OF THE RETURN

Q: State the contents of the return of a writ of habeas corpus.
ANS: The person or officer having custody of the person in whose behalf the
application is made shall state in the return the following:
a. Whether he has or has not the party in his custody or power, or under restraint;
b. If he has the party in his custody or power, or under restraint, the authority and
the true and whole cause thereof, set forth at large, with a copy of the writ, order,
execution, or other process, if any, upon which the party is held;
c. If the party is in his custody or power or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought before the court or judge;
d. If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what

145
 time, for what cause, and by what authority such transfer was made (Sec. 10,
Rule 102).

C.DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION

Q: Distinguish a preliminary citation from a peremptory writ.
ANS: A preliminary citation refers to a citation to the government officer having the
person in his custody, the illegality of which is not patent, to show cause why the
writ of habeas corpus should not issue. A peremptory writ, on the other hand, is
issued when the cause of the detention appears to be patently illegal and the non-
compliance therewith is punishable (Lee Hick Yon v. The Insular Collector of
Customs, G.R. No. L-16779, March 30, 1921).

D.WHEN NOT PROPER/APPLICABLE

Q: When is habeas corpus not proper?
ANS: Application for a writ of habeas corpus is not proper:
a. For asserting or vindicating the denial of the right to bail (Galvez v. Court of
Appeals, G.R. No. 114046, October 24, 1994); or
b. For correcting errors in the appreciation of facts or law (Sotto v. Director of
Prisons, G.R. No. L-18871, May 30, 1962);
c. Where the trial court had jurisdiction over the cause, over the person of the
accused, and to impose the penalty provided for by law, the mistake
committed by the trial court, if any, refers to the appreciation of the facts
and/or in the appreciation of the law, which cannot be corrected by habeas
corpus (Ibid.);
d. Once a person detained is duly charged in court, he may no longer
question his detention through a petition for issuance of a writ of habeas
corpus. His remedy would be to quash the information and/or the warrant
of arrest duly issued (Rodriguez v. Bonifacio, A.M. No. RTJ-99-
1510, November 6, 2000).

E.WHEN THE WRIT IS DISALLOWED OR DISCHARGED

Q: When may the court deny a petition for habeas corpus?
ANS: The court may deny a petition for habeas corpus in the following instances:
a. If jurisdiction appears after the writ is allowed;
b. If the person is in the custody of an officer under process issued by a court
or by virtue of a judgment or order of a court of record which has
jurisdiction to issue the process, render the judgment or make the order;
c. If the person is charged with or convicted of an offense in the Philippines;
d. If the person is suffering imprisonment under lawful judgment (Sec. 4, Rule
102);
e. 3-day detention of a suspect for three (3) days without charge (Sec. 18, Ra
No. 9372 “Human Security Act of 2007” to take effect on July 14, 2007).

F.DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA

Q: Distinguish writ of habeas corpus from writ of amparo and habeas data
ANS:
DIFFERENCES
Habeas Corpus Writ of Amparo Habeas Data
Involves the right to Involves the right to Involves the right to
liberty of and rightful life, liberty and privacy in life, liberty
custody by the security of the or security of the
aggrieved party. aggrieved party and aggrieved party and
covers extralegal may cover extralegal

146
 killings and enforced killings and enforced
disappearances. disappearances.
There is an actual There is an actual or There is an actual or
violation of threatened violation of threatened violation
aggrieved party’s aggrieved party’s of aggrieved party’s
right. right. right.
Respondent is a
public official or
Respondent: may or Respondent is a employee or a private
may not be an public official or individual or entity
officer. employee or a private engaged in the
individual or entity. gathering, collecting
or storing of data or
information regarding
the person, family
name and
correspondence of
the aggrieved party.
Filed by the party for Filed by the aggrieved Filed by the
whose relief it is party or by any aggrieved party; but
intended or by some qualified person or in cases of extralegal
person on his entity in the following killings and enforced
behalf. order: disappearances, may
a) any member of the be filed by:
immediate family of a) any member of the
the aggrieved party, immediate family of
i.e. spouse, children the aggrieved party,
and parents; i.e. spouse, children
b) any ascendant, and parents;
descendant or b) any ascendant,
collateral relative of descendant or
the aggrieved party collateral relative of
within the fourth civil the aggrieved party
degree of within the fourth civil
consanguinity or degree of
affinity; consanguinity or
c) any concerned affinity.
citizen, organization,
association or
institution (right to file
is successive).
Filed before: Filed before: Filed with:
1. RTC or any judge 1. RTC of the place 1. RTC where the
thereof, where the threat petitioner or
2. CA or any act or omission respondent
member thereof in was committed or resides, or that
instances any of its elements which has
authorized by law, occurred jurisdiction over
and 2. Sandiganbayan or the place where
3. SC or any any justice thereof the data or
member thereof 3. CA or any justice information is
thereof gathered
4. SC or any justice collected or

147
 thereof stored, at the
option of
petitioner
2. SC, CA or
Sandiganbayan
when the action
concerns public
data files or
government
offices
If granted by SC or The writ shall be The writ shall be
CA or any member enforceable anywhere enforceable
of such courts, it is in the Philippines anywhere in the
enforceable regardless of who Philippines regardless
anywhere in the issued the same. of who issued the
Philippines; if same.
granted by the RTC
or a judge thereof, it
is enforceable only
within his judicial
district.
If granted by the SC If issued by the RTC If issued by the RTC
or CA or any or any judge thereof, or any judge thereof,
member of such it is returnable before it shall be returnable
courts, it may be such court or judge. before such court or
made returnable judge.
before the court or If issued by the
any member thereof Sandiganbayan or the If issued by the CA or
or before an RTC or CA or any of their the Sandiganbayan or
any judge thereof. justices, it may be any of its justices, it
returnable before may be returnable
If granted by the such court or any before such court or
RTC or a judge justice thereof, or to any justice thereof, or
thereof, it is any RTC of the place to any RTC of the
returnable before where the threat, act place where the
himself. or omission was petitioner or
committed or any of respondent resides or
its elements occurred. that which has
jurisdiction over the
If issued by the SC or place where the data
any of its justices, it or information is
may be returnable gathered, collected or
before such Court or stored.
any justice thereof, or
the Sandiganbayan or If issued by the SC or
CA or any of their any of its justices, it
justices, or to any may be returnable
RTC of the place before such Court or
where the threat, act any justice thereof, or
or omission was before the CA or the
committed or any of Sandiganbayan or
its elements occurred. any of its justices, or
to any RTC of the

148
 place where the
petitioner or
respondent resides or
that which has
jurisdiction over the
place where the data
or information is
gathered, collected or
stored.
Petitioner is exempted Only an indigent
from payment of petitioner is not
docket and other required to pay
lawful fees. docket and other
lawful fees.
Summary hearing Summary hearing
Date and time of shall be conducted shall be conducted
hearing is specified not later than 7 days not later than 10 work
in the writ. from the date of the days from the date of
issuance of the writ. the issuance of the
writ.
Served to the Served upon the Served upon the
person to whom it is respondent respondent
directed; and if not personally, but if it personally, but if it
found or has not the cannot be served cannot be served
prisoner in his personally, the rules personally, the rules
custody, to the other on substituted service on substituted service
person having or shall apply. shall apply.
exercising such
custody.
If the person to If the respondent If the respondent
whom the writ is refuses to make a refuses to make a
directed neglects or return or makes a return or makes a
refuses to obey or false return, he may false return, he may
make return of the be punished with be punished with
same, or makes a imprisonment or fine imprisonment or fine
false return thereof, for committing for committing
or who, upon contempt. contempt.
demand made by or
on behalf of the
prisoner, refuses to
deliver to the person
demanding, within 6
hours after the
demand therefore, a
true copy of the
warrant or order of
commitment, he
shall forfeit to the
party aggrieved the
sum of PhP1,000
and may be
punished for
contempt.

149
 The person who The person who files The person who files
makes the return is the return is the the return is the
the officer by whom respondent. respondent.
the prisoner is
imprisoned or the
person in whose
custody the prisoner
is found.
A general denial of A general denial of
the allegations in the the allegations in the
petition shall not be petition shall not be
allowed. allowed.
If the respondent fails In case the
to file a return, the respondent fails to file
court, justice or judge a return, the court,
shall proceed to hear justice or judge shall
the petition ex parte. proceed to hear the
petition ex parte,
granting the petitioner
such relief as the
petition may warrant
unless the court in its
discretion requires
the petitioner to
submit evidence.
There are prohibited There are prohibited
pleadings and pleadings and
motions. motions.
Sec. 12 Sec. 14. The court,
1. Unless for good justice or judge may
cause shown, the grant interim reliefs, to
hearing is wit: temporary
adjourned, in protection order,
which event the inspection order,
court shall make production order and
an order for the witness protection
safe keeping of order.
the person
imprisoned or
restrained as the
nature of the case
requires;
2. The court or judge
must be satisfied
that the person’s
illness is so grave
that he cannot be
produced without
any danger.
There is no
presumption that
official duty has been
regularly performed.

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 Judgment shall be Judgment shall be
rendered within 10 rendered within 10
days from the time the days from the time
petition is submitted the petition is
for decision. submitted for
decision.
Judgment shall be
enforced within 5
working days.
Period of appeal is Period of appeal shall Period of appeal shall
within 48 hours from be 5 working days be 5 working days
notice of the from the date of from the date of
judgment or final notice of the adverse notice of the
order appealed from judgment. Filed with judgment or final
SC thru RULE 45 order. Filed with SC
thru RULE 45
May be consolidated May be consolidated
with a criminal action with a criminal action
filed subsequent to filed subsequent to
the petition. the petition.
Quantum of proof is Quantum of proof is Quantum of proof is
clear and convincing substantial evidence. substantial evidence.
evidence.
If upon its
determination it
cannot proceed for a
valid cause such as
failure of petitioner or
witnesses to appear
due to threats on their
lives, the court shall
not dismiss the
petition, but shall
archive it. It may be
revived by the court
motu proprio or upon
motion by any party

G.RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN

RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
Q: Who may file a petition of writ of habeas corpus involving custody of
minors?
ANS: A verified petition for the rightful custody of a minor may be filed by any
person claiming such right (Sec. 2).

Q: What are the contents of the petition?

ANS: The verified petition shall contain the following:
a. The personal circumstances of the petitioner and respondent;
b. The name, age and present whereabouts of the minor and his relationship
to the petitioner and respondent;
c. The material operative facts constituting deprivation of custody;
d. Such other matters which are relevant to the custody of the minor (Sec. 4).

151
 Q: State the requisites for the grant of the writ of habeas corpus involving
custody of minors.
ANS: The requisites are the following:
a. The petitioner has the right of custody over the minor;
b. The rightful custody of the minor is being withheld from the petitioner by
the respondent;
c. That it is to the best interest of the minor concerned to be in the custody of
the petitioner and not that of the respondent (Sombong v. Court of
Appeals, G.R. No. 111876, January 31, 1996).

Q: Widow A and her two children, both girls, aged 8 and 12 years old, reside in
Angeles City, Pampanga. A leaves her two daughters in their house at night
because she works in a brothel as a prostitute. Realizing the danger to the
morals of these two girls, B, the father of the deceased husband of A, files a
petition for habeas corpus against A for the custody of the girls in the Family
Court in Angeles City. In said petition, B alleges that he is entitled to the
custody of the two girls because their mother is living a disgraceful life. The
court issues the writ of habeas corpus. When A learns of the petition and the
writ, she brings her two children to Cebu City. At the expense of B the sheriff of
the said Family Court goes to Cebu City and serves the writ on A. A files her
comment on the petition raising the following defenses: a) The enforcement of
the writ of habeas corpus in Cebu City is illegal; and b) B has no personality to
institute the petition. Resolve the petition in the light of the above defenses of
A. (2003 Bar)
ANS:
a. The writ of habeas corpus issued by the Family Court in Angeles City may not
be legally enforced in Cebu City, because the writ is enforceable only within
the judicial region to which the Family Court belongs, unlike the writ granted
by the SC or CA which is enforceable anywhere in the Philippines (Sec. 20).
b. B, the father of the deceased husband of A, has the personality to institute the
petition for habeas corpus of the two minor girls, because the grandparent has
the right of custody as against the mother A who is a prostitute (Secs. 2 and
13; Answers to the Bar Examination Questions by the UP Law Complex and
Philippine Law Schools Association 2006).

XIV. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

A.COVERAGE
Q: What is the writ of amparo?
ANS: The writ of amparo is a remedy available to any person whose right to life,
liberty and security has been violated or is threatened with violation by an unlawful
act or omission of a public official or employee or of a private individual or entity.
The writ covers extralegal killings and enforced disappearances or threats thereof
(Sec. 1).

B.DISTINGUISH FROM WRIT OF HABEAS CORPUS AND HABEAS DATA (See

4.13.6)

C.DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT

Q: Distinguish between the production order under the writ of
amparo and a search warrant.
ANS: The differences are the following:

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 a. A production order is one issued by the court, justice or judge, upon
verified motion and after due hearing, ordering any person in possession,
custody or control of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or objects in digitized or
electronic form, which constitute or contain evidence relevant to the petition
or the return, to produce and permit their inspection copying or
photographing by or on behalf of the movant; a search warrant, on the
other hand, is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer commanding
him to search for personal property described therein and bring it before
the court; and
b. A production order is likened to the production of documents or things
under Sec. 1, Rule 27 of the Rules of Civil Procedure; whereas a search
warrant is a legal process which has been likened to a writ of discovery
employed by the state to procure relevant evidence of a crime. It is in the
nature of a criminal process and may be invoked only in furtherance of
public prosecutions.

D.WHO MAY FILE

Q; Who may file a petition for the issuance of a writ of amparo?
ANS: The petition may be filed by the aggrieved party or by any qualified person or
entity in the following order:
a. Any member of the immediate family, namely: the spouse children and parents of
the aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity, in default of those in the preceding
paragraph;
c. Any concerned citizen, organization, association or institution, if there is no
known member if the immediate family or relative of the aggrieved party.

NOTE: The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. In the same way, the filing of the petition
by an authorized party shall suspend the right of all others in the order established
above (Sec. 2).

E.CONTENTS OF RETURN
Q: State the contents of the return of a writ of habeas corpus.
ANS: Within 5 working days after service of the writ, the respondent shall file a
verified written return together with supporting affidavits which shall, among other
things, contain the following:
a. Lawful defenses to show that the respondent did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any
act or omission;
b. The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for
the threat, act or omission;
c. All relevant information in the possession of the respondent pertaining to the
threat, act or omission against the aggrieved party; and
d. If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken:
i. Verify the identity of the aggrieved party;
ii. To recover and preserve evidence related to the death or disappearance which
may aid in the prosecution of the person/s responsible;

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 iii. To identify witnesses and obtain statements from them concerning the death or
disappearance;
iv. To determine the cause, manner, location and time of death or disappearance
as well as any pattern or practice that may have brought about the death or
disappearance;
v. To identify and apprehend the person/s involved in the death or
disappearance;
vi. To bring the suspected offenders before the competent court;
e. Other matters relevant to the investigation, its resolution and prosecution of the
case (Sec. 9).

F.EFFECTS OF THE FAILURE TO FILE A RETURN

Q: What shall the court do in case respondent fails to file a return?
ANS: The court shall proceed to hear the petition ex parte (Sec. 12).

G.OMNIBUS WAIVER RULE

Q: What is the omnibus waiver rule?
ANS: It refers to the rule that the respondent must plead all his defenses in the
return. Failure to do so shall operate as a waiver of such defenses not therein
pleaded (Sec. 10).

H.PROCEDURE FOR HEARING

Q: What is the nature of the hearing?
ANS: The hearing on the petition shall be summary (Sec. 13).

Q: How long shall the hearing last?

ANS: The hearing shall be from day to day until completed and shall be given the
same priority as petitions for habeas corpus. The court, justice or judge may call for
a preliminary conference to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties (Sec. 13).

I.INSTITUTION OF SEPARATE ACTION

Q: May a separate action be filed even after a petition for a writ of amparo has
been filed?
ANS: Yes. The petition for a writ of amparo shall not preclude the filing of separate
criminal, civil or administrative actions (Sec. 21).

J.EFFECT OF FILING OF A CRIMINAL ACTION

Q: What is the effect of the filing of a criminal action on the action for
a writ of amparo?
ANS: When a criminal action has been commenced, no separate petition
for the writ shall be filed. The reliefs under the writ shall be available by
motion in the criminal case. The procedure under the Rule on the writ of
amparo shall govern the disposition of reliefs available under the writ
(Sec. 22).

K.CONSOLIDATION
Q: May a petition for writ of amparo be consolidated with a criminal action?
ANS: Yes. When a criminal action is filed subsequent to the filing of a petition for
the writ, the latter shall be consolidated with the criminal action. When a criminal
action and a separate civil action are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the criminal action. After consolidation,

154
 the procedure under this Rule shall continue to apply to the disposition of the reliefs
in the petition (Sec. 23).

L.INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT

Q: State the interim reliefs available to a petitioner in a petition for a writ of
amparo.
ANS: They are the following:
a. Temporary Protection Order – The court, justice or judge, upon motion or
motu proprio, may order that the petitioner or the aggrieved party and any
member of the immediate family be protected in a government agency or
by an accredited person or private institution capable of keeping and
securing their safety. If the petitioner is an organization, association or
institution, the protection may be extended to the officers involved.
b. Inspection Order - The court, justice or judge, upon verified motion and
after due hearing, may order any person in possession or control of a
designated land or other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the property or any
relevant object or operation thereon.
c. Production Order - The court, justice or judge, upon verified motion and
after due hearing, may order any person in possession, custody or control
of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in digitized or electronic
form, which constitute or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying or photographing by
or on behalf of the movant.
d. Witness Protection Order – The court, justice or judge, upon motion or
motu proprio, may refer the witnesses to the DOJ for admission to the
Witness Protection, Security and Benefit Program (Sec. 14).

Q: What interim reliefs are available to a respondent?

ANS: Upon verified motion of the respondent and after due hearing, the court,
justice or judge may issue an inspection order or production order. A motion for
inspection order shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent (Sec. 15).

M.QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF A WRIT OF

AMPARO
Q: What is the burden of proof necessary for the issuance of a writ of
amparo?
ANS: The parties shall establish their claims by substantial evidence (Sec. 17).

XV. WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC)

A.SCOPE OF WRIT
Q: What is the scope of the writ of habeas data?
ANS: The writ covers instances where a person’s right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting
or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party (Sec. 1). It may also cover cases of
extralegal killings and enforced disappearances (Sec. 2).

B.AVAILABILITY OF WRIT

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 Q: When is the writ of habeas data available?
AND: The remedy is available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting
or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party (Sec. 1).

Q: Who may file a petition for writ of habeas data?

ANS: Any aggrieved party may file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced disappearances, the petition may be
filed by:
a. Any member of the immediate family of the aggrieved party, namely: the spouse,
children and parents; or
b. Any ascendant, descendant or collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity, in default of those mentioned in the
preceding paragraph (Sec. 2).

C.DISTINGUISH FROM WRIT HABEAS CORPUS AND AMPARO (See 4.13.6)

D.CONTENTS OF THE PETITION

Q: State the contents of a petition for writ of habeas data.
ANS: A verified written petition for habeas data should contain the following:
a. Personal circumstances of the petitioner and respondent;
b. The manner the right of privacy is violated or threatened;
c. Actions and recourses taken by the petitioner to secure the data or
information;
d. Location of the files, registers or database, the government office, person
in charge, in possession and control of the data, if known;
e. Reliefs prayed for;
f. Other relevant reliefs as are just and equitable (Sec. 6).

E.CONTENTS OF THE RETURN

Q: What shall the return of the respondent contain?
ANS: The return shall, among other things, contain the following:
a. The lawful defenses such as national security, state secrets, privileged
communication, confidentiality of the source of information of media and
others;
b. In case of respondent in charge, possession or control of the data or
information subject of the petition:
i. A disclosure of the data or information about the petitioner, the nature of
such data or information, and the purpose for its collection;
ii. The steps of actions taken by the respondent to ensure the security and
confidentiality of the data or information;
iii. The currency and accuracy of the data or information held;
c. Other allegations relevant to the resolution of the proceeding (Sec. 10).

F.INSTANCES WHEN THE PETITION MAY BE HEARD IN CHAMBERS

Q: Are there instances where a petition for habeas data may be heard in
chambers? Explain.
ANS: A hearing in chambers may be conducted where the respondent invokes the
defense that the release of the data or information in question shall compromise
national security or state secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged character (Sec. 12).

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G.CONSOLIDATION
Q: When may a petition for habeas data be consolidated with a criminal
action?
ANS: When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the criminal action. When a criminal action
and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action. When there is
consolidation, the procedure under the Rule on the Writ of Habeas Data shall
govern the disposition of the reliefs under the writ (Sec. 21).

H.EFFECT OF FILING OF A CRIMINAL ACTION

Q: What is the effect of the filing of a criminal action on the petition for writ of
habeas corpus?
ANS: When a criminal action has been commenced, no separate petition for the
writ shall be filed. The reliefs under the writ shall be available to an aggrieved party
by motion in the criminal case (Sec. 22).

I.INSTITUTION OF A SEPARATE ACTION

Q: May a separate criminal, civil or administrative action be filed aside from a
petition for the writ of habeas data?
ANS: The filing of a petition for the writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions (Sec. 20).

J.QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF

HABEAS DATA
Q: What is the burden of proof needed for the issuance of a writ of habeas
data?
ANS: The parties shall establish their claims by substantial evidence (Sec. 16).

XVI. CHANGE OF NAME

A.DIFFERENCES UNDER RULE 103, R.A. NO. 9048 AND RULE 108
Q: Give the differences between Rule 103, R.A. No. 9048 and Rule 108.
ANS:
DIFFERENCES
Petitions For The
Petitions For Correction,
Change Of Name Cancellation Of R.A. No. 9048
(Rule 103) Entries
(Rule 108)
Change of first
Change or
Refers to change name and
corrections in the
Subject of full name nickname and other
civil entries
Matter (substantial civil entries
(substantial
corrections) (typographical or
corrections)
clerical errors only)
Any person Any person having
May be filed by interested, in any a direct and
Who may any person act, event, order personal interest in
file desiring to change or decree the correction of a
his name concerning the clerical or
civil status of typographical error

157
 persons which in an entry and/or
has been change of first
recorded in the name or nickname.
civil register
1. In the local civil
registry office of
the city or
municipality
where the record
being sought to
RTC of the RTC of the city or be corrected or
province in which province where changed is kept,
Where to
petitioner resides the corresponding 2. The local civil
file
for 3 years prior to civil registry is registrar of the
the filing. located. place where the
interested party
is currently
residing or
domiciled,
3. Philippine
consulates
Summary
proceedings when
dealing with
clerical and
typographical
What kind
Judicial errors. Administrative
of
proceedings Adversarial when proceedings
proceeding
there are
substantial
changes that
affect the status of
an individual.
1. First name or
nickname is
ridiculous,
tainted with
1. The name is dishonor or
ridiculous, extremely
tainted with difficult to write
dishonor or or pronounce,
extremely 2. New first name
Grounds
difficult to write Upon good and or nickname has
for Change
or pronounce, valid grounds. been habitually
of Name
2. A consequence and continuously
of a change of used by the
status, petitioner and he
3. Necessary to has been
avoid confusion publicly known
by such first
name or
nickname in the
community,

158
 3. Change will
avoid confusion.

B.GROUNDS FOR CHANGE OF NAME

Q: What are some of the sufficient grounds for change of name?
ANS: The following are sufficient grounds to warrant a change name:
a. When the name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
b. When the change is a legal consequence of legitimation or adoption;
c. When the change will avoid confusion;
d. When one has continuously used and been known since childhood by a
Filipino name and was unaware of alien parentage;
e. When the change is based on a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith and without prejudice to
anybody; and
f. When the surname causes embarrassment and there is no showing that
the desired change of name was far a fraudulent purpose, or that the
change of name would prejudice public interest (Republic of the Philippines
v. Court of Appeals, G.R. No. 88202, December 14, 1998).

XVII. ABSENTEES
A.PURPOSE OF THE RULE
Q: What is the purpose of the rule on absentees?
ANS: The purpose of the rule is to appoint an administrator over the properties of
the absentee. Hence, if absentee left no properties, such petition is unnecessary
(Reyes v. Alejandro, G.R. No. L-32026, January 16, 1986).

B.WHO MAY FILE; WHEN TO FILE

Q: Who may file an application for declaration of absence of a person?
ANS: The following may file an application for declaration of absence of a person:
a. The spouse present;
b. The heirs instituted in a will, who may present an authentic copy of the
same;
c. The relatives who would succeed by the law of intestacy;
d. Those who have over the property of the absentee some right
subordinated to the condition of his death (Sec. 2, Rule 107).

Q: When may the declaration of a person’s absence be applied for?

ANS: After the lapse of 2 years from his disappearance and without any news
about the absentee or since the receipt of the last news, or of 5 years in case the
absentee has left a person in charge of the administration of his property (Sec. 2,
Rule 107).

XVIII. CANCELLATION AND CORRECTION OF ENTRIES IN THE CIVIL

REGISTRY
A.ENTRIES SUBJECT TO CORRECTION UNDER RULE 108, IN RELATION TO
R.A. No. 9048
Q: State the entries that are subject to correction under Rule 108, in relation
to R.A. No. 9048.
ANS: They are the following:

159
 a. Births;
b. Marriages;
c. Deaths;
d. Legal separations;
e. Judgments of Annulments of marriage;
f. Judgments declaring marriages Void from the beginning;
g. Legitimations;
h. Adoptions;
i. Acknowledgments of natural children;
j. Naturalization;
k. Election, loss or recovery of citizenship;
l. Civil interdiction;
m. Judicial determination of filiation;
n. Voluntary emancipation of a minor;
o. Change of name (Sec. 2).

NOTE: Under R.A. No. 9048, clerical or typographical errors in entries of the
civil register are now to be corrected and changed without need of a judicial
order and by the city or municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of Rule 108 the correction or
changing of such errors in entries of the civil register. Hence, what is left for
the scope of operation of Rule 108 are substantial changes and corrections in
entries of the civil register.

NOTE: R.A. No. 9048 is Congress’ response to the confusion wrought by the
failure to delineate as to what exactly is that so-called summary procedure for
changes or corrections of a harmless or innocuous nature as distinguished
from that appropriate adversary proceeding for changes or corrections of a
substantial kind. For we must admit that though we have constantly referred
to an appropriate adversary proceeding, we have failed to categorically state
just what that procedure is. R.A. No. 9048 now embodies that summary
procedure while Rule 108 is that appropriate adversary proceeding. Be that
as it may, the case at bar cannot be decided on the basis of Republic Act No.
9048 which has prospective application (Lee v. Court of Appeals, G.R. No.
118387, October 11, 2001).

Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is

married to another woman living in China. Her birth certificate indicates that
Helen is the legitimate child of Tony and Eliza and that she is a Chinese
citizen. Helen wants her birth certificate corrected by changing her filiation
from "legitimate" to "illegitimate" and her citizenship from "Chinese" to
"Filipino" because her parents were not married. What petition should Helen
file and what procedural requirements must be observed? Explain. (2005 Bar)
ANS: A petition to change the record of birth by changing the filiation from
"legitimate" to "illegitimate" and petitioner's citizenship from "Chinese" to "Filipino"
because her parents were not married, does not involve a simple summary
correction, which could otherwise be done under the authority of R.A. No. 9048. A
petition has to be filed in a proceeding under Rule 108 of the Rules of Court, which
has now been interpreted to be adversarial in nature (Republic of the Philippines v.
Valencia, G.R. No. L-32181, March 5, 1986). Procedural requirements include:
a. Filing a verified petition;
b. Naming as parties all persons who have or claim any interest which would be
affected;

160
 c. Issuance by the court of an order fixing the time and place of hearing;
d. Giving reasonable notice to the parties named in the petition; and
e. Publication of the order once a week for three consecutive weeks in a newspaper
of general circulation (Rule 108; Answers to the Bar Examination Questions by
the UP Law Complex and Philippine Law Schools Association 2006).

XIX. APPEALS IN SPECIAL PROCEEDINGS

A.JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN
Q: When may appeals be made in special proceedings?
ANS: An interested person may appeal in special proceedings from such order or
judgment rendered which:
a. Allows or disallows a will;
b. Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
c. Allows or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to a
claim against it;
d. Settles the account of an executor, administrator, trustee or guardian;
e. Constitutes, in the proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except that
no appeal shall be allowed from the appointment of a special administrator; and
f. Is the final order or judgment rendered in the case, and affects the substantial
rights of the person appealing, unless it be an order granting or denying a motion
for a new trial or for reconsideration (Sec. 1, Rule 109).

B.WHEN TO APPEAL
Q: What is the period to appeal from an order or judgment in special
proceedings?
ANS: A party may appeal from an order or judgment within 30 days from notice
thereof (Sec. 19(b), Interim Rules and Guidelines; Gonzales Orense v. Court of
Appeals, G.R. No. 80526, July 18, 1988).

C.MODE OF APPEAL
Q: What is the mode of appeal in special proceedings?
ANS: Appeals in special proceedings shall be by record on appeal (Ibid.).

D.RULE ON ADVANCE DISTRIBUTION

Q: State the rule on advance distribution in special proceedings.
ANS: Notwithstanding a pending controversy or appeal in proceedings to settle the
estate of a decedent, the court, in its discretion and upon such terms as it may
deem just and proper, permit that such part of the estate as may not be affected by
the controversy or appeal be distributed among the heirs or legatees, upon
compliance with the condition in Rule 90 (Sec. 2, Rule 109).

CRIMINAL PROCEDURE
I. GENERAL MATTERS
Q: What is criminal procedure?

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 ANS: Criminal procedure is the method prescribed by law for the apprehension and
prosecution of persons accused of any criminal offense and for their punishment, in
case of conviction (Herrera, Vol. IV, p. 1, 2007 ed., p.1).

Q: What are the elements of jurisdiction in criminal cases?

ANS: The elements of jurisdiction in criminal cases are:
a. The nature of the offense and/or the penalty attached thereto; and
b. The fact that the offense has been committed within the territorial
jurisdiction of the court (Herrera, p.2).

Q: In criminal cases, is venue the same as jurisdiction?

ANS: Yes. Venue is an essential element of jurisdiction in criminal cases. It
determines not only the place where the criminal action is to be instituted, but also
the court that has the jurisdiction to try and hear the case. The reason for this rule is
two-fold. First, the jurisdiction of trial courts is limited to well-defined territories such
that a trial court can only hear and try cases involving crimes committed within its
territorial jurisdiction. Second, laying the venue in the locus criminis is grounded on
the necessity and justice of having an accused on trial in the municipality of
province where witnesses and other facilities for his defense are available (Union
Bank of the Philippines v. People of the Philippines, G.R. No. 192565, February 28,
2012).

A.DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION

OVER THE PERSON OF THE ACCUSED
Q: What is criminal jurisdiction?
ANS: Criminal jurisdiction is the authority to hear and try a particular offense and
impose the punishment for it (People of the Philippines v. Mariano, G.R. No. L-
40527, June 30, 1976).

Q: State the distinctions between jurisdiction over the subject matter and
jurisdiction over the person of the accused in criminal cases.
ANS: The distinctions are the following:
a. Jurisdiction over the subject matter refers to the authority of the court to
hear and determine a particular case (Reyes v. Diaz, G.R. No. L-48754,
November 26, 1941); jurisdiction over the person charged with the offense
must have been brought in to its forum for trial, forcibly by warrant of arrest
or upon his voluntary submission to the court (Arula v. Espino, G.R. No. L-
28949, June 23, 1969);
b. Jurisdiction over the subject matter is derived from law. It can never be
acquired solely by consent of the accused; jurisdiction over the person of
the accused may be acquired by the consent of the accused or by waiver
of objections (People of the Philippines v. Marquez, G.R. No. L-23654,
March 28, 1969);
c. Objection that the court has no jurisdiction over the subject matter may be
made at any stage of the proceeding, and the right to make such objection
is never waived (Suy Sui v. People of the Philippines, G.R. No. L-5278,
February 17, 1953); in jurisdiction over the person, if the accused fails to
make his objection in time, he will be deemed to have waived it (People of
the Philippines v. Marquez, supra).

B.REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION

Q: What are the requisites for a valid exercise of criminal jurisdiction?

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 ANS: The following requisites must be present before a court can validly exercise
its power to hear and try a case:
a. It must have jurisdiction over the subject matter;
b. It must have jurisdiction over the territory where the offense was committed;
c. It must have jurisdiction over the person of the accused (Herrera, p. 4).

Q: When should the question of jurisdiction be raised?

ANS: The issue of jurisdiction may be raised at any stage of the proceedings, even
on appeal, and is not lost by waiver or by estoppel (Figueroa v. People of the
Philippines, G.R. No. 147406, July 14, 2008). The only exception is when the
factual setting is similar to that in Tijam v. Sibonghanoy (G.R. No. L-21450, April 15,
1968), where the Court held that a party may be barred by laches from invoking
lack of jurisdiction at a late hour for the purpose of annulling everything done in the
case with the active participation of said party invoking the plea of lack of
jurisdiction (People of the Philippines v. Eduarte, G.R. No. 88232, February 26,
1990).

C.JURISDICTION OF CRIMINAL COURTS

Q: How is jurisdiction determined?
ANS: The jurisdiction of courts in criminal cases is determined by the allegations of
the complaint or Information and not by the findings the court may make after the
trial (Buaya v. Polo, G.R. No. L-75079 January 26, 1989).

Q: What is the principle of adherence of jurisdiction?

ANS: The principle of adherence of jurisdiction means that once jurisdiction is
vested in the court, it is retained up to the end of the litigation. It remains with the
court until the case is finally terminated (De la Cruz v. Moya, G.R. No. L-65192,
April 27, 1988).

Q: Is the principle of adherence absolute?

ANS: No. The exception is when a newly enacted statute changing the jurisdiction
of a court is given retroactive effect, it can divest a court of jurisdiction over cases
already pending before it which were filed before the statute came into force or
became effective (Binay v. Sandiganbayan, G.R. Nos. 120681-83, October 1,
1999).

Q: Give an outline of the criminal jurisdiction of courts.

ANS: The following is an outline of the criminal jurisdiction of courts.

CRIMINAL
MUNICIPAL TRIAL COURTS
CASES

1. Offenses punishable with imprisonment not exceeding

six (6) years irrespective of the amount of fine, and
regardless of other imposable accessory or other
penalties, including the civil liability arising from such
EXCLUSIVE offenses or predicated thereon, irrespective of kind,
ORIGINAL nature, value or amount thereof;

NOTE: The rule disregarding the amount of the fine and

other accessory penalties applies where the offense is
punishable by imprisonment or fine or both, but not
when the offense is punishable by fine only.

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 NOTE: The jurisdiction of the MTC is qualified by the
phrase “Except in cases falling within the exclusive
jurisdiction of the RTC and of the Sandiganbayan.” This
indicates that the MTC does not at all times have
jurisdiction over offenses punishable with imprisonment
not exceeding 6 years if jurisdiction is vested by law
either in the RTC (e.g. libel) or Sandiganbayan (e.g.
bribery).

2. Where the only penalty provided for by law is a fine not

more than PhP4,000 (Adm. Cir. 09-94).

3. Offenses involving damage to property through criminal

negligence.

4. Those covered by the Rules on Summary Procedure:

a. Violations of traffic laws, rules and regulations;
b. Violations of the rental law;
c. Violations of municipal or city ordinances;
d. Violations of B.P. Blg. 22, otherwise known as
Bouncing Checks Law (A.M. No. 00-11-01-SC);
e. All other criminal cases where the penalty is
imprisonment not exceeding 6 months and/or
PhP1,000 fine irrespective of other penalties or civil
liabilities arising therefrom;
f. Offenses involving damage to property through
criminal negligence where the imposable fine does
not exceed PhP10,000.
Special Jurisdiction on applications for bail in criminal
SPECIAL cases in the absence of all RTC judges in a province or
city (Sec. 35, B.P. Blg. 129).

CRIMINAL
REGIONAL TRIAL COURT
CASES

1. Criminal cases not within the exclusive jurisdiction of any

court, tribunal or body, except those falling under the
exclusive and concurrent jurisdiction of the
Sandiganbayan;
2. Offenses the imposable penalty for which exceeds 6
years imprisonment;
3. In cases where the only penalty is a fine exceeding
EXCLUSIVE PhP4,000, RTCs have jurisdiction (Adm. Cir. 09-94);
ORIGINAL 4. Criminal cases under specific laws:
a. Written defamation;
b. Jurisdiction of designated courts over cases in
violation of the Comprehensive Dangerous Drugs Act
of 2002 as provided in Sec. 90 thereof;
c. Violation of intellectual property rights.
5. All cases on money laundering except those falling
under the jurisdiction of the Sandiganbayan
6. Election offenses.

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 Family Court – Criminal cases where:
a. One or more of the accused is/are below eighteen (18)
years of age but not less than nine (9) years of age; or
b. Where one of the victims is a minor at the time of the
commission of the offense;
c. Cases against minors cognizable under the Dangerous
Drug Act;
d. Violations of R.A. No. 7610, otherwise known as the
“Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act” as amended by R.A.
No. 7658; and
e. Cases of domestic violence against women and
children.
All cases decided by the MTCs in their respective
APPELLATE
territorial jurisdiction.
To handle exclusively criminal cases as designated by the
SPECIAL
Supreme Court.

CRIMINAL
SANDIGANBAYAN
CASES

The Sandiganbayan shall exercise original jurisdiction in all

cases involving:
1. Violations of:
a. R.A. No. 3019 (Anti-Graft and Corrupt Practices Act);
b. R.A. No. 1379 (Ill Gotten Wealth);
c. Chapter 2, Section 2, Title 7, Book 2 of the RPC
(Bribery, etc.)
where one or more of the accused are official occupying
the following positions in the government, whether
permanent, acting or interim capacity, at the time of the
commission of the offense:
i. Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade “27” and higher of the
EXCLUSIVE Compensation and Position Classification Act of 1989;
ORIGINAL ii. Members of Congress and officials thereof classified
as Grade “27” and up under the Compensation and
Position Classification Act of 1989;
iii. Members of the judiciary without prejudice to the
provisions of the Constitution;
iv.Chairmen and members of the Constitutional
Commissions, without prejudice to the provisions of
the Constitution; and
v. All other national and local officials classified as Grade
“27” and higher under the Compensation and Position
Classification Act of 1989.

NOTE: It is not only the salary grade that determines the

jurisdiction of the Sandiganbyan. The salary grade has
no reference for example to provincial governors, vice
governors or members of the sangguniang panlalawigan,

165
 sangguniang panlungsod, directors or managers of
GOCCs, city mayors, vice mayors, city treasurers,
assessors, engineers, trustees of state universities, and
other officials enumerated in Sec. 4 (1) (a) from letters
“a”-“g” of P.D. No. 1606 as amended.

2. Other offenses or felonies whether simple or complexed

with other crimes committed by the public officials and
employees mentioned in subsection (a) in relation to their
office.
3. Cases filed pursuant to and in connection with E.O. No.
1, 2, 14 and 14-A (Sequestration cases), issued in 1986.
4. Money laundering cases committed by public officers
and private persons who are in conspiracy with such
public officers.

Appeals from the final judgments, resolutions or orders of

regional trial courts whether in the exercise of their own
jurisdiction or of their appellate jurisdiction where all the
accused are occupying positions lower than salary grade
27 or not otherwise covered by the preceding enumeration.

Petitions for the issuance of the writs of mandamus,

APPELLATE
prohibition, certiorari, habeas corpus, injunction 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 E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, that the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.

CRIMINAL
COURT OF APPEALS
CASES
EXCLUSIVE a. Crimes of Terrorism under Human Security Act of
ORIGINAL 2007.
With the SC:
Petitions for certiorari, prohibition and mandamus
against the RTCs.
CONCURRENT
With the SC & RTC:
Petitions for certiorari, prohibition and mandamus
against the MTCs.

By Notice of Appeal:
a. From the RTC in the exercise of its original
jurisdiction, except those appealable to the the
Sandiganbayan, Court of Tax Appeals and Supreme
APPELLATE
Court;
b. From the RTC where penalty imposed is reclusion
perpetua or life imprisonment or where a lesser
penalty is imposed but for offenses committed on the

166
 same occasion or which arose out of the same
occurrence that gave rise to the more serious offense
for which the penalty of death, reclusion perpetua, or
life imprisonment is imposed (Section 3 Rule 122 as
amended by AM. No. 00-5-03-SC).

By Automatic Review
(i.e. No Notice of Appeal is Necessary):
From the RTC, in cases where the death penalty is
imposed.

By Petition for Review under Rule 42

From the RTC in cases appealed thereto from lower
courts and not appealable to the Sandiganbayan.

CRIMINAL
SUPREME COURT
CASES
EXCLUSIVE Petition for certiorari, prohibition and mandamus against
ORIGINAL Court of Appeals and Sandiganbayan.
With the CA:
Petitions for certiorari, prohibition and mandamus
against the RTCs.
CONCURRENT
With the CA & RTC:
Petitions for certiorari, prohibition and mandamus
against the MTCs.
By Petition for Review on Certiorari
a. From the Court of Appeals;
b. From the Sandiganbayan;
c. From the RTC where only an error or question of law
is involved.
APPELLATE
NOTE: Where the penalty imposed is reclusion
perpetua or life imprisonment, appeal should be made
to the CA, not the SC (People of the Philippines v.
Mateo, G.R. Nos. 147678-87, July 7, 2004).

Q: With respect to the jurisdiction of the Sandiganbayan, when is an offense

deemed committed “in relation to one’s office”?
ANS: The office must be a constituent element of the crime as defined in the
statute. The test is whether the offense cannot exist without the office (Crisostomo
v. Sandiganbayan, G.R. No. 152398. April 14, 2005).

Q: X, a municipal mayor whose position is classified as salary grade (SG) 27,

was charged with the crime of malversation, together with his co-accused, Y,
a municipal accountant whose position is classified as SG 24, and Z, a private
individual. Which court has jurisdiction over the complaint?
ANS: The Sandiganbayan has jurisdiction. The determinative fact is that the
position of the municipal mayor, is classified as SG 27, and under the last
paragraph of Section 2 of R.A. No. 7975, if the position of one of the principal
accused is classified as SG 27, the Sandiganbayan has original and exclusive
jurisdiction over the offense (Barriga v. Sandiganbayan, G.R. Nos. 161784-86, April

167
 26, 2005).

Q: In election offenses committed by public officers with SG 27 or higher,

which court has jurisdiction – the RTC or the Sandiganbayan?
ANS: The Omnibus Election Code provides that the RTC shall have exclusive
original jurisdiction to try election offenses (Sec. 268), whether committed by a
private individual or public officer or employee, and in the latter instance,
irrespective of whether the offense is committed in relation to his official duties or
not. It is the nature of the offense and not the personality of the offender that
matters (Corpus v. Tanodbayan, G.R. No. L-62075 April 15, 1987).

D.WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL

PROSECUTION
Q: May injunction be issued to restrain criminal prosecutions?
ANS: As a general rule, no. Criminal prosecutions may not be restrained or stayed
by injunction because public interest requires that criminal acts be immediately
investigated and prosecuted for the protection of society (Domingo v.
Sandiganbayan, G.R. No. 109376, January 20, 2000).

Q: Is the rule absolute?

ANS: No. The following are exceptions to the rule:
a. To afford adequate protection to the constitutional rights of the accused;
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
c. When there is a prejudicial question which is sub judice;
d. When the acts of the officer are without or in excess of authority;
e. When the prosecution is under an invalid law, ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. When the court had no jurisdiction over the offense;
h. When it is a case of persecution rather than prosecution;
i. When the charges are manifestly false and motivated by the lust for
vengeance;
j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied; and
k. To prevent the threatened unlawful arrest of petitioners (Ocampo, IV v.
Ombudsman, G.R. Nos. 103446-47, August 30, 1993);
l. To prevent the use of the strong arm of the law in an oppressive and
vindictive manner (Hernandez v. Albano, et al., G.R. No. L-19272, January
25, 1967);
m. When preliminary investigation is conducted hastily (Brocka v. Enrile, G.R.
No. 69863-65, December 10, 1990).

II. PROSECUTION OF OFFENSES

A.CRIMINAL ACTIONS, HOW INSTITUTED
Q: How are criminal actions instituted?
ANS: Criminal actions shall be instituted as follows:
a. In offenses where a preliminary investigation is required – By filing the
complaint with the proper officer for the purpose of conducting the requisite
preliminary investigation;
b. In offenses which do not require preliminary investigation – By filing the
complaint or Information directly with the Municipal Trial Courts or
Municipal Circuit Trial Courts, or with the office of the prosecutor. In Manila

168
 and other chartered cities, the complaint shall be filed with the office of the
prosecutor, unless otherwise provided in their charters (Sec. 1, Rule 110).

NOTE: The offenses falling under the first group refer to those punishable by
a penalty of at least 4 years, 2 months and 1 day of imprisonment, while
those falling under the second group are offenses punishable by lesser
penalty. Proper officers include city and provincial prosecutors (Pineda, The
Revised Rules on Criminal Procedure, 2003 ed., p. 2).

Q: What is the effect of the filing of a criminal action on the period of

prescription of offenses?
ANS: The institution of a criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws (Sec.
1, Rule 110).

Q: What is a complaint?
ANS: A complaint is a sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer, or other public officer charged
with the enforcement of the law violated (Sec. 3, Rule 110).

Q: Who may file a complaint?

ANS: The complaint may be filed by the offended party, any peach officer, or other
public officer charged with the enforcement of the law violated (Albano v. Arranz,
G.R. No. L-24403, December 22, 1965).

Q: What is an Information?
ANS: An Information is an accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court (Sec. 4, Rule 110).

Q: Distinguish a complaint from an Information.

ANS: The distinctions are the following:
a. A complaint may be signed by the offended party, any peace officer, or
other public officer charged with the enforcement of the law violated; an
Information is always signed by the prosecuting officer;
b. A complaint is sworn to by the person signing it; an Information need not be
under oath since the prosecuting officer filing it is already acting under his
oath of office; and
c. A complaint may be filed either with the office of the prosecutor or with the
court; an Information is always filed with the court (Sabio, Criminal
Procedure, p. 17-18).

Q: In case of variance between the complaint filed by the offended party and
the Information in crimes against chastity, which shall prevail?
ANS: The complaint (People of the Philippines v. Mendez, G.R. No. 132546, July 5,
2000).

B.WHO MAY FILE THEM; CRIMES THAT CANNOT BE PROSECUTED DE

OFFICIO
Q: What are the crimes that must be prosecuted upon complaint of the
offended party?
ANS: The following crimes must be prosecuted upon the complaint of the offended
party:

169
 a. Concubinage and adultery – The criminal action should be initiated by the
offended spouse, who should have the status, capacity and legal representation
at the time of the filing of the complaint.
b. Seduction, Abduction and Acts of Lasciviousness – The criminal action is to be
initiated exclusively and successively by the following persons in the following
order:
i. By the offended woman;
ii. By the parents, grandparents or legal/judicial guardians of the offended woman
in that successive order, if the offended party is incompetent or incapable of
doing so;
iii. By the State pursuant to the doctrine of Parens Patriae, when the offended
party dies or becomes incapacitated before she could file the complaint and
she has no known parents, grandparents or guardian.
c. Defamation imputing to a person any of the following crimes of concubinage,
adultery, seduction, abduction or acts of lasciviousness can be prosecuted only
by the party or parties defamed (Sec. 5, Rule 110).

C.CRIMINAL ACTIONS, WHEN ENJOINED

Q: When may criminal actions be enjoined?
ANS: NOTE: See Item I-D, under General Matters, When Injunction May be Issued
to Restrain Criminal Prosecution.

D.CONTROL OF THE PROSECUTION

Q: Who must prosecute criminal actions?
ANS: All criminal actions commenced either by complaint of Information shall be
prosecuted under the direction and control of the public prosecutor (Sec. 5, Rule
110).

Q: When may a private prosecutor be allowed to prosecute a criminal action?

ANS: The prosecution may be allowed to a private prosecutor upon compliance
with the following conditions:
a. The public prosecutor has a heavy work schedule, or there is no public
prosecutor assigned in the province or city;
b. The private prosecutor is authorized in writing by the Chief of the Prosecutor
Office or the Regional State Prosecutor (RSP);
c. The authority of the private prosecutor must be approved by the court;
d. The private prosecutor shall continue to prosecute the case until the end of the
trial unless the authority is withdrawn or otherwise revoked;
e. In case of the withdrawal or revocation of the authority of the private prosecutor,
the same must be approved by court (A.M. No. 02-2-07-SC; DOJ Memo Circular
No. 25).

Q: A filed with the Office of the Prosecutor a Complaint for estafa against B.
After the preliminary investigation, the Prosecutor dismissed the Complaint
for lack of merit. May the Prosecutor be compelled by mandamus to file an
Information? (1999 Bar)
ANS: No. It is a matter of discretion which cannot be compelled (People of the
Philippines v. Pineda, G.R. No. L-26222, July 21, 1967). The remedy is to appeal to
the Secretary of Justice (Sec. 4, Rule 122).

Q: May the prosecutor be compelled to prosecute a case already filed?

ANS: Yes. Notwithstanding his personal convictions or opinions, the Prosecutor
must proceed with his duty of presenting evidence to the court to enable the court

170
 to arrive at its own independent judgment as to the culpability of the accused (Sta.
Rosa Mining Co. v. Asst. Provincial Fiscal Zabala, G.R. No. L-44723, August 31,
1987).

Q: Distinguish control by prosecution from control by the court.

ANS: Before a case is filed in court, the prosecution has a wide range of discretion
– the discretion of whether, what and whom to charge, the exercise of which
depends upon a variety of factors which are best appreciated by prosecutors
(Punzalan v. Dela Peña, G.R. No. 158543, July 21, 2004). After a case is filed in
court, any disposition of the case as to its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court. Although the Prosecutor
retains the direction and control of the prosecution of criminal cases even while the
case is already in Court he cannot impose his opinion on the trial court. The Court
is the best and sole judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence (Crespo v. Mogul,
G.R. No. L-53373, June 30, 1987).

E.SUFFICIENCY OF COMPLAINT OR INFORMATION

Q: When is a complaint or Information deemed sufficient?
ANS: A complaint or Information shall be sufficient if it states the following:
a. Name and surname of the accused, or any appellation or nickname by
which he is known or has been known;
b. The designation of the offense;
c. The acts or omissions complained of as constituting the offense;
d. The name of the offended party;
e. The approximate date of the commission of the offense; and
f. The place where the offense was committed (Sec. 6, Rule 110).

F.DESIGNATION OF OFFENSE
Q: State the requirements as to the designation of the offense.
ANS: The Information or complaint must state:
a. The designation of the offense given by the statute, or if there is no
designation of the offense, reference shall be made to the section of the
statute punishing it;
b. The statement of the acts or omissions constituting the offense, in ordinary,
concise and particular words;
c. The specific qualifying and aggravating circumstances must be stated in
ordinary and concise language (Sec. 8, Rule 110).

Q: If there is inconsistency between the designation of the offense and the

allegations in the Information, what shall prevail?
ANS: The allegation. What controls is not the title of the Information or the
designation of the offense but the actual facts recited in the Information. It is the
recital of facts of the commission of the offense, not the nomenclature of the
offense that determines the crime being charged in the Information (Carungcong v.
People of the Philippines, G.R. No. 181409, February 11, 2010).

Q: What is the effect of an erroneous designation or failure to make the

designation of the offense?
ANS: The errors or omissions shall not affect the validity of the information, so long
as the facts alleged in the body of the information sufficiently recite the essential
facts constituting the offense charged.

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 Q: What is the effect when a qualifying or an ordinary aggravating
circumstance is attendant in the offense is not specified in the information?
ANS: If they are not alleged in the Information, even if proved, they cannot be
considered (Sec. 8, Rule 110).

G.CAUSE OF THE ACCUSATION

Q: How should a cause of action be alleged in the complaint or Information?
ANS: The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is
being charged as well as its qualifying and aggravating circumstances and for the
court to pronounce judgment (Sec. 9, Rule 110).

Q: Can an accused charged of a complex offense be convicted of one of the

component offenses?
ANS: Yes. Where a complex crime is charged and the evidence fails to support the
charge as to one of the component offenses, the defendant can be convicted of the
other (United States v. Lahoylahoy, G.R. No. L-12453, July 15, 1918).

H.DUPLICITY OF THE OFFENSE; EXCEPTION

Q: What is the rule on duplicity of offenses?
ANS: A complaint or Information must charge only one offense (Sec. 13, Rule 110).
An Information is defective if it charges two or more distinct or different offenses
(People of the Philippines v. Ferrer, G.R. No. L-8957, April 29, 1957).

Q: What is the rationale behind the rule enjoining the charging of two or more
offenses in an Information?
ANS: The aim is to give the defendant the necessary knowledge of the charge to
enable, him to prepare his defense. The State should not heap upon the defendant
two or more charges which might confuse him in his defense (People of the
Philippines v. Ferrer, supra).

Q: Is the rule on duplicity of offenses absolute?

ANS: No. The following are the exceptions:
a. Complex crimes;
b. Special complex crimes;
c. Continuing crimes or delito continuado;
d. Crimes susceptible of being committed in various modes;
e. Crimes of which another offense is an element thereof (principle of
absorption);
f. Where a single act violates two or more distinct statutes.

Q: What is the remedy of the accused if the Information charges two or more
offenses?
ANS: If there is duplicity in the offense charged, the remedy of the accused is to file
a motion to quash (Sec. 3 [f], Rule 117). If he fails to do so, the objection is deemed
waived (United States v. Paraiso, G.R. No. 5658, September 28, 1910), in which
case, the court may convict him of as many offenses as are charged and proved,
and impose on him the penalty for each offenses (Sec. 3, Rule 120).

I.AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION

Q: Explain the concept of amendment.

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ANS: Amendment refers to the modification of a complaint or Information by the
public prosecutor which changes its form or substance (Pineda, p. 48).

Q: What is a formal amendment?

ANS: The amendment is only in form if it does not affect or alter the nature of the
offense charged (Arevalo v. Nepomuceno, G.R. No. L-45332, October 27, 1936).
The test of whether an amendment is only of form and an accused is not prejudiced
by such amendment has been said to be whether or not a defense under the
Information as it originally stood would be equally available after the amendment is
made, and whether or not any evidence the accused might have would be equally
applicable to the Information in the one form as in the other; if the answer is in the
affirmative, the amendment is one of form and not of substance (Teehankee v.
Madayag, G.R. No. 103102, March 6, 1992).

Q: What are substantial amendments?

ANS: Amendments that are prohibited after the accused has pleaded are
amendments in substance. And the substantial matters in the complaint or
Information is the recital of facts constituting the offense charged and determinative
of the jurisdiction of the court. All other matters are merely in form (Almeda v.
Villaluz, G.R. No. L-31665, August 6, 1975).

Q: X was charged with the crime of murder to which he pleaded not guilty.
After the presentation of the prosecution’s evidence, the prosecutor moved to
amend the Information to include the aggravating circumstances of dwelling
and insult to the rank, age and sex of the victim. X opposed on the ground
that such an amendment is substantial and hence cannot be made after plea.
Is the contention correct?
ANS: No. The insertion of the aggravating circumstances of dwelling and insult or
disregard of the respect due to rank, age, or sex of the victim is a formal, not a
substantial, amendment. These amendments do not have the effect of charging
another offense different or distinct from the charge of murder as contained in the
original Information. They relate only to the range of the penalty that the court might
impose in the event of conviction. The amendment did not adversely affect any
substantial right of X (People of the Philippines v. Tubongbanua, G.R. No. 171271,
August 31, 2006).

Q: When may a complaint or Information be amended?

ANS: If made before the plea, the general rule is that any amendment, formal or
substantial, may be done without need for leave of court. However, where the
amendment downgrades the nature of the offense charged or excludes any
accused from the complaint or Information, it shall require a motion by the
prosecutor, notice to the offended party and leave of court.

If made after the plea, only formal amendments may be made and it shall require
leave of court and such amendment should not be prejudicial to the rights of the
accused. When a fact supervenes which changes the nature of the crime charged
in the Information, or upgrades it to a higher crime, a substantial amendment may
be made with a need for a re-arraignment of the accused under the amended
Information (Sec. 14, Rule 110).

Q: Distinguish amendment from substitution.

ANS: The distinctions are as follows:
a. Amendment applies to both form and substance; substitution applies only

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 to substantial changes in the original charge because a new complaint or
Information is charged as a substitute for the original charge;
b. When amendment is as to form, there is no need for another preliminary
investigation; whereas in substitution, there is a need for another
preliminary investigation and the accused has to plead anew to the new
complaint or Information;
c. An amended Information involves the same offense originally charged or to
an offense which necessarily includes or is necessarily included in the
original charge, hence, substantial amendments to the Information after the
plea has been taken cannot be made over the objection of the accused, for
if the original Information would be withdrawn, the accused could invoke
double jeopardy; Substitution presupposes that the new Information
involves a different offense which does not include or is not included in the
original charge, hence, the accused cannot claim double jeopardy (Pineda,
p. 52).

Q: What are the instances when an Information may be substituted?

ANS: If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
Information upon the filing of a new one charging the proper offense, provided the
accused shall not be placed in double jeopardy (Sec. 14, Rule 110).

J.VENUE OF CRIMINAL ACTIONS

Q: Where should a criminal action be instituted?
ANS: The general rule is that the criminal action shall be instituted in the courts of
the municipality or territory where the offense was committed or any of its essential
ingredients occurred. The following are the exceptions:
a. Where an offense is committed on a railroad train, in an aircraft, or in any other
public or private vehicle in the course of its trip – The criminal action may be
instituted and tried in the court of any municipality or territory where such train,
aircraft or other vehicle passed during such trip, including the place of departure
and arrival;
b. Where an offense is committed on board a vessel in the course of its voyage –
The criminal action may be instituted and tried in the proper court of the first port
of entry or of any municipality or territory through which the vessel passed during
such voyage subject to the generally accepted principles of international law
(Sec. 15, Rule 110);
c. Felonies under Art. 2 of the Revised Penal Code shall be cognizable by the
proper court where the criminal action was first filed.
i. Piracy – The venue of piracy, unlike all other crimes, has no territorial limits. It
may be tried anywhere.
ii. Libel – The action may be instituted at the election of the offended or suing
party in the province or city:
1. Where the libelous article is printed and first published;
2. If one of the offended parties is a private individual, where said private
individual actually resides at the time of the commission of the offense;
3. If the offended party is a public official, where the latter holds office at the
time of the commission of the offense;
d. In cases filed under B.P. Blg. 22 – The criminal action shall be filed in the place
where the check was dishonored or issued. In case of crossed-check, in the
place of depositary or collecting bank;

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 e. In exceptional circumstances – To ensure a fair trial and impartial inquiry, the SC
shall have the power to order a change of venue or place of trial to avoid
miscarriage of justice (Sec. 5 [4], Article VIII, 1987 Constitution).

Q: Distinguish a transitory offense from a continuing offense.

ANS: A transitory offense is one where some acts material and essential to the
crime occur in one place and some in another, in which case, the rule is settled that
the court of either province where any of the essential ingredients of the crime took
place has jurisdiction to try the case, such as estafa, malversation or abduction.

On the other hand, a continuing offense is one which, although all the elements
thereof for its consummation may have occurred in a single place, yet by reason of
the very nature of the offense committed, the violation of the law is deemed to be
continuing, such as kidnapping, illegal detention where the deprivation of liberty is
persistent and continuing from one place to another and libel where the libelous
matter is published or circulated from one province to another (Parulan v. Director
of Prisons, G.R. No. L-28519, February 17, 1968).

K.INTERVENTION OF THE OFFENDED PARTY

Q: May the offended party intervene in the prosecution of a criminal action?
Discuss.
ANS: Yes. The offended party has the right to intervene by counsel in the
prosecution of the criminal action, where the civil action for recovery of civil liability
is instituted in the criminal action pursuant to Rule 111. However, the exceptions
are:
a. Where from the nature of the crime and the law defining and punishing it, no civil
liability arises in favor of the offended party;
b. Where the offended party has waived his right to civil indemnity;
c. Where the offended party has expressly reserved his right to institute a separate
civil action; or
d. Where the offended party has already instituted said action (Sec. 16, Rule 110).

III. PROSECUTION OF CIVIL ACTION

A.RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION
Q: What is the general rule governing the institution of criminal and civil
actions?
ANS: The civil action for the recovery of civil liability against the offender is deemed
instituted together with the criminal action (Sec. 1, Rule 111).

Q: What are the exceptions?

ANS: The civil action is not deemed instituted in the following cases:
a. When the offended party waives the civil action;
b. When the offended party reserves his right to institute a separate civil
action;
c. When the offended party has already previously instituted the civil action
prior to the criminal action (Sec. 1, Rule 111).

Q: When should the reservation of the right to institute the civil action
separately be made?
ANS: The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under

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 circumstances affording the offended party a reasonable opportunity to make such
reservation (Sec. 1, Rule 111).

Q: Give the instances where the reservation of the right to institute a civil
action separately is not allowed.
ANS: They are the following:
a. In criminal actions for violation of B.P. Blg. 22 (Sec. 1 [b], Rule 111);
b. In criminal actions falling under the jurisdiction of the Sandiganbayan (Sec.
4, R.A. No. 8249);
c. In tax cases (Sec. 7 [b][1], RA No. 9282).

Q: Saturnino filed a criminal action against Alex for the latter’s bouncing
check. On the date of the hearing after the arraignment, Saturnino manifested
to the court that he is reserving his right to file a separate civil action. The
court allowed Saturnino to file a civil action separately and proceeded to hear
the criminal case. Alex filed a motion for reconsideration contending that the
civil action is deemed included in the criminal case. The court reconsidered
its order and ruled that Saturnino could not file a separate action. Is the
court’s order granting the motion for reconsideration correct? Why? (2001
Bar)
ANS: Yes, the court’s order is correct. The criminal action for violation of B.P. Blg.
22 shall be deemed to include the corresponding civil action, and no reservation to
file such civil action separately shall be allowed (Sec. 1 [b], Rule 111).

Q: What is the reason for the rule that criminal actions are given priority over
civil actions?
ANS: Criminal actions take precedence over civil actions because the former
involves the life and liberty of the accused. The civil action is just an incident of the
criminal case (Pineda, p. 77).

B.WHEN MAY CIVIL ACTION PROCEED INDEPENDENTLY

Q: What are independent civil actions?
ANS: Independent civil actions are those provided under Article 32 (fundamental
rights and liberties), Article 33 (cases of defamation, fraud and physical injuries),
Article 34 (refusal or failure by police force to render aid or protection in case of
danger to life or property), and Article 2176 (quasi-delict) of the New Civil Code.
They may proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case shall the offended party recover damages
twice for the same act or omission.

C.WHEN SEPARATE CIVIL ACTION IS SUSPENDED

Q: When is the separate civil action suspended?
ANS: After the commencement of the criminal action, a separate civil action which
the offended party has reserved cannot be instituted until final judgment has been
rendered in the criminal action. If the civil action has already been instituted before
the criminal action, the civil action shall be suspended until final judgment in the
criminal action is rendered. In such case, the offended party has the option of
consolidating the civil action with the criminal proceeding (Sec. 2, Rule 111). The
bar on the institution or suspension of the separate civil actions has the following
exceptions:
a. In cases of independent civil actions under Articles 32, 33, 34 and 2176 of the
New Civil Code;
b. When the civil action raises a prejudicial question;

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 c. Where the civil action is consolidated with the criminal action;
d. When the civil action is not one intended to enforce the civil liability arising from
the crime.

Q: Delia sued Victor for personal injuries which she allegedly sustained when
she was struck by a car driven by Victor. May the court receive in evidence,
over proper and timely objection by Delia, a certified true copy of a judgment
of acquittal in a criminal prosecution charging Victor with hit-and-run driving
in connection with Delia’s injuries? Why? (2002 Bar)
ANS: Yes. The general rule is that the acquittal of the accused does not
necessarily exempt him from civil liability. He may be acquitted but he may still be
adjudged civilly liable (Padilla v. Court of Appeals, G.R. No. L-39999, May 31,
1984). However, the civil action based on delict may be deemed extinguished if
there is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist (Sec. 2, Rule 111).

D.EFFECT OF THE DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION

Q: What is the effect of the death of the accused on civil actions?
ANS: The effect of the death of the accused on civil actions is as follows:
a. If the accused dies before arraignment, the case shall be dismissed without
prejudice to any civil action the offended party may file against the estate of
the accused (Limjoco v. Intestate Estate of Fragante, G.R. No. L-770, April
27, 1948);
b. If the accused dies after arraignment during the pendency of the criminal
action, the civil liability arising from the delict shall be extinguished (Art. 89
[i], RPC);
c. If the accused dies during appeal, his civil and criminal liabilities are
extinguished (People of the Philippines v. Alison, G.R. No. L-30612, May 3,
1983);
d. If the accused dies after final judgment, the pecuniary liabilities of the
accused are not extinguished. Claims shall be filed against the estate of
the accused under Rule 86 of the Rules of Court.

Q: What are the exceptions?

ANS: They are the following:
a. Where the civil liability is predicated on other sources of obligations such
as law, contract, quasi-contract and quasi-delict, or is an independent civil
action, the action may be continued against the estate of the accused after
proper substitution is made either as to the relatives or the estate; and
b. If the civil action has been reserved and subsequently filed or such civil
action has been instituted when the accused died, such civil action will
proceed and substitution of parties shall be ordered by the court pursuant
to Sec. 16, Rule 3.

E.PREJUDICIAL QUESTION
Q: What is a prejudicial question?
ANS: A prejudicial question is one which arises in a case, the resolution of which is
a logical antecedent of the issue involved therein and the cognizance of which
pertains to another tribunal (Quiambao v. Osorio, G.R. No. L-48157 March 16,
1988).

Q: What are the elements of a prejudicial question?

ANS: It has the following elements:

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 a. The civil action must be instituted prior to the criminal action;
b. The civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action;
c. The resolution of such issue determines whether the criminal action may
proceed (Sec. 7, Rule 111).

Q: X is charged with estafa in court for failure to remit to Y sums of money

collected by him (X) for Y in payment for goods purchased from Y, by
depositing the amounts in his (X’s) personal bank account. X files a motion to
suspend proceedings pending resolution of a civil case earlier filed in court
by CX against Y for accounting and damages involving the amounts subject
of the criminal case. As the prosecutor in the criminal case, briefly discuss
your grounds in support of your opposition to the motion to suspend
proceedings. (2000 Bar)
ANS: I will oppose the motion to suspend proceedings on the grounds that the civil
case filed by X against Y for accounting and damages does not involve an issue
which is similar or intimately related to the issue of estafa in the criminal action, and
that the resolution of the issue for accounting will not determine whether the
criminal action may proceed (Sec. 7, Rule 111).

Q: X allegedly sold to Y a parcel of land which X later also sold to Z. Y

brought a civil action for nullification of the second sale and asked that the
sale made by X in his favor be declared valid. X theorized that he never sold
the property to Y and his purported signatures appearing in the first deed of
sale were forgeries. Thereafter, an Information for estafa was filed against X
based on the same double sale that was the subject of the civil action. X filed
a "Motion for Suspension of Action" in the criminal case, contending that the
resolution of the issue in the civil case would necessarily be determinative of
his guilt or innocence. Is the suspension of the criminal action in order?
Explain. (1999 Bar)
ANS: Yes. The issue in the civil action whether X sold the property to Y and
whether his purported signatures in the first deed of sale were forgeries, is a
prejudicial question the resolution of which is determinative of his guilt or
innocence. If the first sale is null and void, there would be no double sale and X
would be innocent of the offense of estafa (Ras v. Rasul, G.R. Nos. L-50441-42,
September 18, 1980).

F.RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE

CRIMINAL ACTION
Q: Give an outline of the rules on filing fees when the civil action is deemed
instituted with the criminal action.
ANS: The rules are the following:
a. No filing fees are required for amounts of actual damages, except with
respect to criminal actions for violation of B.P. Blg. 22, in which case, the
offended party shall pay in full the filing fees based on the face value of the
check as the actual damages;
b. If damages, other than actual (moral, exemplary and other damages), are
specified in the complaint or Information, the corresponding filing fees shall
be paid;
c. Where moral, exemplary and other damages are not specified in the
complaint or Information (the grant and amount thereof are left to the
sound discretion of the trial court), the corresponding filing fees need not

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 be paid and shall simply constitute a first lien on the judgment awarding
such damages (Sec. 1, Rule 111).

IV. PRELIMINARY INVESTIGATION

Q: What is preliminary investigation?
ANS: It is an inquiry or proceeding to determine whether there exists sufficient
ground to engender a well-founded belief that a crime has been committed and that
the respondent is probably guilty thereof and should be held for trial.

A.NATURE OF RIGHT
Q: What is the nature of the right of the accused to preliminary investigation?
ANS: The right to preliminary investigation is of a statutory character and may be
invoked only when specifically created by statute. It is not a fundamental right and
is not among the rights guaranteed to the accused in the Bill of Rights. It may be
waived expressly or by silence (Herrera, p. 274).

B.PURPOSES OF PRELIMINARY INVESTIGATION

Q: State the purposes of preliminary investigation.
ANS: Preliminary investigation is conducted for the following purposes:
a. To determine whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof;
b. To preserve the evidence and keep the witnesses within the control of the
State;
c. To determine the amount of bail, when the offense is bailable (Arula v.
Espino, supra).

C.WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE

CAUSE
Q: What is meant by probable cause for purposes of preliminary
investigation?
ANS: Probable cause is the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted (Buchanan v. Esteban, G.R. No. L-10402, November 30, 1915).

Q: Who may conduct a preliminary investigation?

ANS: The following may conduct a preliminary investigation:
a. Provincial or city fiscal and their assistants;
b. National and regional state prosecutors;
c. Such other officers as may be authorized by law such as: the COMELEC,
Ombudsman and PCGG (Sec. 2, Rule 112).

Q: What is the nature and extent of the authority of the Ombudsman to

conduct preliminary investigation?
ANS: The power to investigate and to prosecute granted by law to the Ombudsman
is plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts (Office of the Ombudsman
v. Breva, G.R. No. 145938, Feb. 10, 2006).

D.RESOLUTION OF INVESTIGATING PROSECUTOR

Q: What shall the investigating prosecutor do if he finds probable cause?

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 ANS: If the investigating prosecutor finds cause to hold the respondent for trial, he
shall prepare the resolution and information where he shall certify under oath that:
a. He or an authorized officer personally examined the complainant and his
witnesses;
b. There is reasonable ground to believe that a crime has been committed and the
accused is probably guilty thereof;
c. The accused was informed of the complaint and the evidence against him; and
d. The accused was given an opportunity to submit controverting evidence (Sec. 4,
Rule 112).

Q: What shall the investigating prosecutor do if he finds no probable cause to

hold the respondent for trial?
ANS: The investigating prosecutor shall recommend the dismissal of the case. No
complaint or Information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
the Ombudsman or his deputy (Sec. 4, Rule 112).

E.REVIEW
Q: What is the remedy of the aggrieved party from the resolution of the
investigating prosecutor?
ANS: An aggrieved party may appeal by filing a verified petition for review with the
Secretary of Justice, and by furnishing copies thereof to the adverse party and the
Prosecution Office issuing the appealed resolution, subject to the following
conditions:
a. The appeal shall be taken within 15 days from receipt of the resolution, or of the
denial of the motion for reconsideration/reinvestigation if one has been filed. Only
one motion for reconsideration shall be allowed;
b. Unless the Secretary directs otherwise, the appeal shall not stay the filing of the
corresponding information in court on the basis of the finding of probable cause in
the appealed resolution, but the appellant and prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court are held in abeyance;
c. The party filing a petition for review is allowed to file a motion for the suspension
of the arraignment;
d. If the Secretary of Justice finds the same to be patently without merit or
manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration, he may dismiss the petition outright;
e. If an Information has already been filed and the accused has already been
arraigned “prior” to the filing of the petition, the petition shall not be given due
course. If the accused has been arraigned “after” the filing of the petition, any
arraignment shall not bar the Secretary of Justice from exercising his power of
review;
f. The Secretary of Justice may reverse, affirm or modify the appealed resolution;
g. However, the Secretary has another option which is to order the reinvestigation of
the case by the investigating prosecutor or by another prosecutor designated to
conduct the same (DOJ Circular No. 70, July 3, 2000).

F.WHEN WARRANT OF ARREST MAY ISSUE

Q: What is a warrant of arrest?
ANS: It is a legal process issued by competent authority, directing the arrest of a
person or persons upon grounds stated therein.

Q: When may a warrant of arrest be issued?

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 ANS: If the judge, after examining the resolution of the prosecutor and its
supporting evidence finds probable cause, he shall issue a warrant of arrest or a
commitment order if the accused has already been arrested pursuant to a warrant.
In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence (Sec. 6, Rule 112).

G.CASES NOT REQUIRING A PRELIMINARY INVESTIGATION

Q: In what cases is a preliminary investigation not required?
ANS: Preliminary investigation is not required in the following cases:
a. Cases in which the imposable penalty does not exceed 4 years, 2 months
and 1 day (prision correccional in its maximum period);
b. Where the accused who has been lawfully arrested without a warrant has
undergone inquest proceeding (Sec. 9, Rule 112).

H.REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION

Q: State the remedies of the accused if no preliminary investigation was
conducted.
ANS: An accused may:
a. Refuse to enter a plea upon arraignment and object to further proceedings
upon such grounds;
b. Insist on a preliminary investigation;
c. Raise the lack of preliminary investigation as an error on appeal;
d. File a petition for certiorari;
e. File for petition for prohibition.

I.INQUEST
Q: What is an inquest?
ANS: Inquest is an informal and summary investigation conducted by a public
prosecutor in criminal cases involving persons lawfully 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 be charged in court (DOJ Circular No. 61, September 21, 1993).

V. ARREST
Q: What is arrest?
ANS: Arrest is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense (Sec. 1, Rule 113).

A.ARREST, HOW MADE

Q: How is an arrest made?
ANS: Arrest is made:
a. By an actual restraint of a person to be arrested; or
b. By the submission of the accused to the custody of the person making the
arrest (Sec. 2, Rule 113).

B.ARREST WITHOUT WARRANT, WHEN LAWFUL

Q: State the instances when an arrest without warrant is lawful.
ANS: A peace officer or a private person may, without warrant, arrest a person:
a. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
b. When an offense has in fact just been committed, and he has probable
cause to believe based on his personal knowledge of facts and
circumstances that the person to be arrested has committed the crime;

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 c. When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another (Sec. 5, Rule 113);
d. Where a person who has been lawfully arrested escapes or is rescued
(Sec. 13, Rule 113);
e. When the bondsman arrests a prisoner out on bail for the purpose of
bringing him to court (Sec. 23, Rule 114);
f. Where the accused attempts to leave the country without the permission of
the court (Ibid.).

C.METHOD OF ARREST
Q: Give and explain the different methods of arrest.
ANS: The following are the methods of arrest:
a. By an Officer with a Warrant – The officer shall inform the person to be
arrested of the cause of the arrest and the fact that a warrant has been
issued for his arrest except when he flees or forcibly resists before the
officer has opportunity to so inform him, or when the giving of such
information will imperil the arrest. The officer need not have the warrant in
his possession at the time of the arrest, but after the arrest, if the person
arrested requires, the warrant shall be shown to him as soon as practicable
(Sec. 7, Rule 113).
b. By an Officer without a Warrant – The officer shall inform the person to
be arrested of his authority and the cause of the arrest unless the latter is
either:
i. Engaged in the commission of an offense;
ii. Is pursued immediately after its commission; or
iii. Has escaped, flees, or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information will imperil the
arrest (Sec. 8, Rule 113).
c. By a Private Person – He shall inform the person to be arrested of the
intention to arrest him and the cause of the arrest unless the latter is either:
i. Engaged in the commission of an offense;
ii. Is pursued immediately after its commission; or
iii. Has escaped, flees, or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information will imperil the
arrest (Sec. 9, Rule 113).

D.REQUISITES OF A VALID WARRANT OF ARREST

Q: State the requisites of a valid warrant of arrest.
ANS: They are:
a. It shall be issued upon probable cause which must be personally
determined by a judge after evaluating the resolution of the prosecutor and
its supporting documents (Sec. 6, Rule 112);
b. The warrant must particularly describe the person to be arrested in
connection with a specific offense of crime.

E.DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF

ARREST
Q: What is meant by probable cause in connection with the issuance of a
warrant of arrest?
ANS: Probable cause for the issuance of a warrant of arrest is the existence of
such facts and circumstances that would lead a reasonably discreet and prudent

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 person to believe that an offense has been committed by the person sought to be
arrested (Ho v. People of the Philippines, G.R. No. 106632, October 9, 1997).

Q: State the procedure for the issuance of warrant of arrest.

ANS: The following steps must be followed in the issuance of a warrant of arrest by
a judge:
a. The judge shall 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
b. If on the basis thereof he finds no probable cause, he may disregard the fiscal’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 (Abundo v.
Manio, A.M. No. RTJ-98-1416. August 6, 1999);
c. If the judge still finds no probable cause despite the additional evidence, he shall,
within 10 days from its submission or expiration of said period, dismiss the case.
When he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no necessity for placing the
accused under custody, he may issue summons instead of a warrant of arrest
(Sec. 9, Rule 112).

F.DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE

Q: Distinguish the judge’s determination of probable cause from the fiscal’s
determination of probable cause.
ANS: Whether there is reasonable ground to believe that the accused is guilty of
the offense charged and should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines whether a warrant of arrest should
be issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice (Cruz v.
Areola, A.M. No. RTJ-01-1642, March 6, 2002). The first kind of preliminary
investigation is executive in nature. It is part of the prosecution's job. The second
kind of preliminary investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the judge (People of the
Philippines v. Inting, G.R. No. 88919, July 25, 1990).

VI. BAIL
Q: What is bail?
ANS: Bail 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 (Sec. 1, Rule 114).

Q: What is the purpose of bail?

ANS: The purpose of putting up bail is to release an accused from his
imprisonment until his conviction and yet secure his appearance at the trial of the
case (Almeda v. Villaluz, G.R. No. L-31665, August 6, 1975).

Q: What are the forms of bail for the release of a detained person?
ANS: Bail may be given in the form of:
a. Corporate surety (Sec. 10, Rule 114);
b. Property bond (Sec. 11, Rule 114);
c. Cash bond (Sec. 14, Rule 114);
d. Recognizance (Sec. 15, Rule 114).

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A.NATURE
Q: What is the nature of the right to bail?
ANS: The right to bail is a constitutional right. Such a right flows from the
presumption of innocence in favor of the accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt
be proved beyond reasonable doubt (De La Camara v. Enage, G.R. Nos. L-32951-
2, September 17, 1971).

B.WHEN A MATTER OF RIGHT; EXCEPTIONS

Q: When is bail a matter of right?
ANS: All persons in custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognizance:
a. Before or after conviction by the MTC;
b. Before conviction by the RTC of an offense not punishable by reclusion perpetua,
life imprisonment or death (Sec. 4, Rule 114);
c. Before conviction by the RTC when the imposable penalty is reclusion perpetua,
life imprisonment or death, when evidence of guilt is not strong (Sec. 7, Rule
114).

C.WHEN A MATTER OF DISCRETION

Q: When is bail a matter of discretion?
ANS: Bail is a matter of discretion in the following cases:
a. Before conviction, in case of offenses punishable by reclusion perpetua, life
imprisonment or death, when evidence of guilt is strong (Sec. 7, Rule 114);
b. Upon conviction by the RTC of an offense not punishable by death,
reclusion perpetua, or life imprisonment (Sec. 5, Rule 114).

D.HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES

Q: What is a capital offense?
ANS: A capital offense is one which, under the law existing at the time of its
commission and of the application for admission to bail, may be punished with
death (Sec. 6, Rule 114).

Q: Is a hearing required in the application for bail in capital offenses?

ANS: Yes. A summary hearing shall be held in order for the prosecution to show
that the evidence of guilt of the applicant for bail is indeed strong (Sec. 8, Rule
114).

E.GUIDELINES IN FIXING AMOUNT OF BAIL

Q: What are the guidelines in setting the amount of bail?
ANS: The judge who issued the warrant or granted the application for bail shall fix a
reasonable amount of bail considering primarily, but not limited to, the following
factors:
a. Financial ability of the accused to give bail;
b. Nature and circumstances of the offense;
c. Penalty for the offense charged;
d. Character and reputation of the accused;
e. Age and health of the accused;
f. Weight of evidence against the accused;
g. Probability of the accused appearing at the trial;
h. Forfeiture of other bail;
i. The fact that the accused was a fugitive from justice when arrested;

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 j. Pendency of other cases when the accused is on bail (Sec. 9, Rule 114).

F.WHEN BAIL NOT REQUIRED

Q: When is bail not required?
ANS: Bail is not required in the following instances:
a. A person who has been in custody for a period equal to or more than the
possible maximum imprisonment prescribed for the offense charged,
without prejudice to the continuation of the trial or the proceedings on
appeal;
b. A person accused of an offense with a maximum penalty of destierro shall
be released after 30 days of preventive imprisonment;
c. A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged shall be released on a
reduced bail or on his own recognizance, at the discretion of the court
(Sec. 16, Rule 114);
d. When the offense charged is a violation of an ordinance, light felony or a
criminal offense, the imposable penalty wherefore does not exceed 6
months of imprisonment and/or fine of PhP2,000 under R.A. No. 6036
where said person has established that he is unable to post the required
cash or bail bond. Instead of bail, he shall be required to sign in the
presence of 2 witnesses of good standing in the community;
e. Where the accused has applied for probation and before the same has
been resolved but no bail was filed or the accused is incapable of filing
one, in which case he may be released on recognizance;
f. In case of a youthful offender held for physical or mental examination, trial
or appeal, if unable to furnish bail and under the circumstances under P.D.
No. 603, as amended;

G.INCREASE OR REDUCTION OF BAIL

Q: May the bail be increased or decreased?
ANS: Yes. After the accused has been granted bail, the court may, upon good
cause, either increase or reduce its amount. When the amount of bail is increased,
the accused may be committed into custody if he does not give bail in the increased
amount within a reasonable period. An accused released without bail upon filing of
the complaint or Information may, at any subsequent stage of the proceedings and
whenever a strong showing of guilt appears to the court, be required to give bail in
the amount fixed, or in lieu thereof, committed to custody (Sec. 20, Rule 114).

H.FORFEITURE AND CANCELLATION OF BAIL

Q: When may the bail be forfeited?
ANS: If the accused fails to appear in person as required by the court or the rules,
his bail shall be declared forfeited. An order of forfeiture of the bail bond is
conditional and interlocutory, there being something more to be done. The
bondsmen are allowed 30 days from the order of forfeiture to produce the body of
the accused or give reasons for his non-production and explain why the accused
did not appear before the court when first required to do so. Failing in these 2
requirements, a judgment shall be rendered against the bondsmen, jointly and
severally, for the amount of the bail (Sec. 21, Rule 114).

Q: When may a bond be cancelled?

ANS: Bail may be cancelled by application of the bondsmen with due notice to the
prosecutor, upon surrender of the accused or proof of his death. The bail may also

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 be deemed automatically cancelled upon acquittal of the accused, dismissal of the
case or execution of judgment of conviction (Sec. 22, Rule 114).

Q: What is the remedy of the bondsman if the petition for cancellation of bail
is denied?
ANS: The order of court denying it could be appealed from, for if such order were
not appealable, it would become final, without ulterior remedy, and would work
irreparable injury to the petitioner (Babasa v. Linebarger, G.R. No. 3026, April 26,
1906).

I.APPLICATION NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST, LACK OF

OR IRREGULAR PRELIMINARY INVESTIGATION
Q: Does an application for bail bar the accused from questioning the validity
of his arrest or the validity of the warrant, or the manner of conducting the
preliminary investigation?
ANS: No, but these objections must be raised before the accused enters his plea;
otherwise, they shall be deemed waived (Torralba v. Sandiganbayan, G.R. No.
101421, February 10, 1994).

Q: What remedies are available to the accused?

ANS: The accused may file a:
a. Motion to quash under Rule 117 if the ground is irregularity of his arrest or
irregularity of the warrant of arrest; or
b. Motion for preliminary investigation or reinvestigation, if the ground is lack
or irregularity in the conduct of the preliminary investigation (Luciano v.
Mariano, G.R. No. L-32950, July 30, 1971).

J.HOLD DEPARTURE ORDER & BUREAU OF IMMIGRATION WATCH LIST

Q: Who may issue a Hold Departure Order?
ANS: A Hold Departure Order may be issued either by the Regional Trial Courts or
by the DOJ (DOJ Circular No. 41, June 7, 2010).

Q: When may the RTC issue hold departure orders?

ANS: Hold Departure Orders issued by the RTC shall pertain to criminal cases
falling within their exclusive jurisdiction, pursuant to Supreme Court Circular 39-97.

Q: When may the DOJ issue a hold departure order?

ANS: The DOJ in the following cases may issue a Hold Departure Order
a. Against an accused irrespective of nationality, in criminal case falling within
the jurisdiction of courts below the Regional Trial Courts;
b. Against the alien whose presence is required either as a defendant,
respondent or witness in a civil or labor case pending litigation, or any case
before an administrative agency;
c. Against any person, motu proprio, or upon the request of the Head of a
Department of the Government; the head of a constitutional body or
commission; the Chief Justice of the Supreme Court for the Judiciary; the
Senate President or the House Speaker for the Legislature, when the
adverse party is the Government or any of its agencies or instrumentalities,
or in the interest of national security, public safety or public health (Sec. 1,
DOJ Circular No. 41).

Q: When may the Secretary of Justice issue a watch list order?

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 ANS: The Secretary of Justice may issue a Watchlist Order in the following
circumstances:
a. Against the accused, irrespective of nationality, in criminal cases pending trial
before the Regional Trial Court;
b. Against the respondent, irrespective of nationality, in criminal cases pending
preliminary investigation, petition for review, or motion for reconsideration before
the Department of Justice or any of its provincial or city prosecution offices;
c. Against any person, either motu proprio, or upon the request of any government
agency, including commissions, task forces or similar entities created by the
Office of the President, pursuant to the “Anti-Trafficking in Persons Act of 2003”
(R.A. No. 9208) and/or in connection with any investigation being conducted by it,
or in the interest of national security, public safety or public health (Sec. 2, DOJ
Circular No. 41).

VII. RIGHTS OF THE ACCUSED

A.RIGHTS OF THE ACCUSED AT THE TRIAL
Q: What are the rights of the accused at the trial?
ANS: The following are the rights accorded the accused at trial:
a. To be presumed innocent until the contrary is proved beyond reasonable
doubt;
b. To be informed of the nature and cause of the accusation against him;
c. To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of judgment;
d. To testify as a witness in his own behalf but subject to cross-examination
on matters covered by the direct examination;
e. To be exempt from being compelled to be a witness against himself;
f. To confront and cross-examine the witnesses against him at trial;
g. To have compulsory process issued to secure the attendance of witnesses
and production of other evidence in his behalf;
h. To have a speedy, impartial and public trial;
i. To appeal in all cases allowed and in the manner prescribed by law (Sec.
1, Rule 115).

B.RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION

Q: State the rights of persons under custodial investigation.
ANS: The following are the rights accorded persons under custodial investigation:
a. To be informed of the right to remain silent and to counsel;
b. To be reminded that if he waives his right to remain silent, anything he says
can and will be used against him;
c. To remain silent;
d. To have competent and independent counsel, preferably of his own
choice;
e. To be provided with counsel, if he cannot afford the services of one;
f. No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him;
g. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited;
h. To have confessions or admissions obtained in violation of the foregoing
rights as inadmissible in evidence (R.A. No. 7438).

VIII. ARRAIGNMENT AND PLEA

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A.ARRAIGNMENT AND PLEA, HOW MADE
Q: What is an arraignment?
ANS: Arraignment is that stage of a criminal proceeding where the complaint or
Information is read to the accused in open court and in a language or dialect known
to him and furnishing him a copy thereof (Pineda, p. 294).

Q: What is the purpose of arraignment?

ANS: Through the arraignment, the constitutional right of the accused to be
informed of the nature of the accusation against him is implemented and observed
(Ibid.).

Q: Where should arraignment be made?

ANS: The accused shall be arraigned in the court where the complaint or
Information was filed or assigned for trial (Sec. 1, Rule 116).

Q: How is arraignment made?

ANS: Arraignment shall be made in open court by the judge or clerk by furnishing
the accused a copy of the complaint or Information, and reading the same in the
language or dialect known to the accused. He shall then be asked whether he
pleads guilty or not guilty. The accused must be present at the arraignment and
must personally enter his plea. Both arraignment and plea shall be made of record,
but failure to do so shall not affect the validity of the proceedings (Sec. 1, Rule 116).

Q: What is a plea?
ANS: A plea is a formal reaction or response required of the accused after the
complaint or Information has been read to him. It is his brief answer to the
accusation by declaring in open court either the words “guilty” or “not guilty”
(Pineda, p. 295).

B.WHEN SHOULD A PLEA OF NOT GUILTY BE ENTERED

Q: What are the instances when a plea of “not guilty” should be entered?
ANS: A plea of “not guilty” should be entered in the following circumstances:
a. When the accused so pleads (unconditional plea of guilt);
b. When the accused refuses to make a plea (negative indirect plea);
c. When the accused makes a conditional plea of guilty;
d. When in admitting the act charged, he sets up matters of defense or with
lawful justification;
e. When the plea is indefinite or ambiguous.

C.WHEN MAY THE ACCUSED ENTER A PLEA OF GUILTY TO A LESSER

OFFENSE
Q: What are the requisites of a plea for a lesser offense?
ANS: They are the following:
a. The accused shall get the conformity of both the offended party and the
prosecutor;
b. The lesser offense is necessarily included in the offense charged (Sec. 2,
Rule 116).

Q: What is the effect if the plea to a lesser offense is without the consent of
the offended party and the prosecutor?
ANS: The conviction of the accused to the lesser offense is not a bar to another
prosecution for an offense which necessarily includes the offense charged in the

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 former information (People of the Philippines v. De Luna, G.R. No. 71969, June 22,
1989).

D.ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE, WHAT THE COURT

SHOULD DO
Q: What should the court do when the accused pleads guilty to a capital
offense?
ANS: When the accused pleads guilty to a capital offense, the court should:
a. Conduct a searching inquiry into the voluntariness and full comprehension
of the consequences of the plea;
b. Require the prosecution to present evidence to prove the guilt and precise
degree of culpability of the accused;
c. Ask the accused if he desires to present evidence in his behalf and allow
him to do so if he desires (Sec 3, Rule 116).

E.SEARCHING INQUIRY
Q: What is the meaning of the duty of the judge to conduct a “searching
inquiry”?
ANS: A searching inquiry must not only comply with the requirements of Sec. 1,
par. (a), of Rule 116 but must also:
a. Expound on the events that actually took place during the arraignment, the words
spoken and the warnings given, with special attention to the age of the accused,
his educational attainment and socio-economic status as well as the manner of
his arrest and detention, the provision of counsel in his behalf during the custodial
and preliminary investigations, and the opportunity of his defense counsel to
confer with him. These matters are relevant since they serve as trustworthy
indices of his capacity to give a free and informed plea of guilt;
b. Explain the essential elements of the crime he was charged with and the penalty
and civil liability; and
c. Direct a series of questions to defense counsel to determine whether he has
conferred with the accused and has completely explained to him the meaning of
a plea of guilty. This formula is mandatory and absent any showing that it was
followed, a searching inquiry cannot be said to have been undertaken (People of
the Philippines v. Molina, G.R. Nos. 141129-33, December 14, 2001).

F.IMPROVIDENT PLEA
Q: What is an improvident plea?
ANS: It is a plea of guilty made without proper advice, or recklessly entered by the
accused without comprehending its seriousness and consequences (Pineda,
p.314).

Q: What shall the court do with an improvident plea?

ANS: The court may permit an improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty (Sec. 5, Rule 116).

G.GROUNDS FOR SUSPENSION OF ARRAIGNMENT

Q: What are the grounds for suspending arraignment?
ANS: The arraignment shall be suspended upon motion by the proper party in the
following cases:
a. The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto;
b. There exists a valid prejudicial question;

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 c. A petition for review of the resolution of the prosecutor is pending at the
Department of Justice or the Office of the President; provided that the period of
suspension shall not exceed 60 days counted from the filing of the petition (Sec.
11, Rule 116); and
d. There are pending incidents such as:
i. A Motion to Quash
ii. A Motion for Inhibition
iii. A Motion for Bill of Particulars

Q: When may the accused move for a bill of particulars?

ANS: The accused may, before arraignment, move for a bill of particulars to enable
him properly to plead and to prepare for trial. The motion shall specify the alleged
defects of the complaint or Information and the details desired (Sec. 9, Rule 116).

IX. MOTION TO QUASH

Q: What is a motion to quash?
ANS: A motion to quash is a motion filed by the accused seeking the dismissal of
the information before entering his plea wherein he hypothetically admits the facts
alleged in the information, and no facts contrary to those allege or facts which do
not appear on the face thereof can be considered by the court in resolving it
(Pineda, p. 332).

A.GROUNDS
Q: What are the grounds that the accused may invoke to quash a complaint
or Information?
ANS: The following are the only valid grounds to quash a complaint or Information:
a. That the facts charged do not constitute an offense;
b. That the court trying the case has no jurisdiction over the offense charged;
c. That the court trying the case has no jurisdiction over the person of the
accused;
d. That the officer who filed the information had no authority to do so;
e. That it does not conform substantially to the prescribed form;
f. That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
g. That the criminal action or liability has been extinguished;
h. That it contains averments which, if true, would constitute a legal excuse or
justification;
i. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent (Sec, 3, Rule 117).

Q: Can the court motu proprio quash an Information?

ANS: No. Except on ground of lack of jurisdiction over the offense charged, a trial
court cannot motu proprio quash an Information (People of the Philippines v.
Nitafan, G.R. No. 107964-66, February 1, 1999).

B.DISTINGUISH FROM DEMURRER TO EVIDENCE

Q: How is a motion to quash distinguished from demurrer to evidence?
ANS:
DIFFERENCES
Motion to Quash Demurrer to Evidence

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 Filed before the defendant enters
his plea
Does not go into the merits of the
case but is anchored on matters
not directly related to the question
of guilt or innocence of the
accused
Rule 117 does not require prior
leave of court for the filing of a
motion to quash
The grounds may be based on the
matters found on the face of the
complaint or Information as when it
is alleged that the facts do not
constitute an offense
When granted, a dismissal of the
case will not necessarily follow.
The court may even order the filing
of a new complaint or Information
because an order sustaining the
motion is generally not a bar to
another prosecution
If the court acted without or in
excess of jurisdiction or with grave
abuse of discretion in denying the
motion to quash, then certiorari or
prohibition lies
Filed after the prosecution has
rested its case and hence,
presupposes that the accused has
already entered his plea and is in
fact already going through a trial
Based upon the inadequacy of the
evidence adduced by the
prosecution in support of the
accusation
A demurrer to evidence under Rule
119 may be filed by the accused
either with or without leave court
A demurrer to evidence would
necessarily be predicated upon
matters outside of the complaint or
Information such as the evidence
or lack of it
The grant of a demurrer on the
ground of insufficiency of evidence
is, by jurisprudence, deemed an
acquittal and could preclude the
filing of another information or an
appeal by the prosecution
The order denying the motion for
leave to file a demurrer shall not be
reviewable by appeal or by
certiorari before judgment

C.EFFECTS OF SUSTAINING THE MOTION TO QUASH

Q: State the effects if the court sustains the motion to quash.
ANS: The following are the effects:
a. If the ground for the motion is either:
i. The facts charged do not constitute an offense;
ii. The officer who filed the information had no authority to do so;
iii. The information does not conform substantially to the prescribed form;
iv.That more than one offense is charged in the information.

NOTE: The court may order that another Information be filed or an

amendment thereof be made, as the case may be, within a definite period.
If such order is not made, or if made, is not complied with, the accused if
he is in custody shall be discharged therefrom, unless he is also in custody
on some other charge.

b. If the motion is based on the following:

i. The criminal action or liability has been extinguished;

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 ii. The information contains averments which, if true, would constitute a
legal excuse or justification;
iii. That the accused has been previously convicted or acquitted of the
offenses charged.

NOTE: The court must state, in the order granting the motion, the release
of the accused if he is in custody or the cancellation of his bond if he is on
bail.

c. If the ground for the motion is based on lack jurisdiction over the offense
the better practice is to forward or remand the case to the proper court, not
to quash the complaint or Information.

D.EXCEPTION TO THE RULE THAT SUSTAINING MOTION TO QUASH IS NOT A

BAR TO ANOTHER PROSECUTION
Q: Is the grant of a motion to quash a bar to another prosecution?
ANS: As a general rule, no. The grant of the motion to quash is not a bar to another
prosecution for the same offense except when:
a. The motion was based on the ground that the criminal action has been
extinguished; and
b. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without
his express consent (Sec. 6, Rule 117).

E.DOUBLE JEOPARDY
Q: What is double jeopardy?
ANS: The rule on double jeopardy states that when a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other
manner without the express consent of the accused, the latter cannot again be
charged with the same or identical offense (Sec. 7, Rule 117).

Q: State the requisites for the defense of double jeopardy to prosper.

ANS: The requisites are:
a. There must be a complaint or Information or other formal charge sufficient
in form and substance to sustain a conviction;
b. Filed before a court of competent jurisdiction;
c. After the accused had been arraigned and pleaded to the charge;
d. That the accused was convicted or acquitted or the case against him was
dismissed or otherwise terminated without his express consent;
e. The second offense charged is the same as the first charge, or of an
attempt to commit the same or a frustration thereof or that the second
offense necessarily includes or is necessarily included in the first offense
charged (Pineda, p.375).

Q: An Information was filed against B. B filed a motion to quash on the

grounds that the court trying the case has no jurisdiction over his person,
and that the facts do not constitute an offense. Can the court grant the
motion on the ground of lack of jurisdiction?
ANS: No. The rule is that if the accused objects to the jurisdiction of the court over
his person, he may move to quash the information, but only on that ground. If, as in
this situation, the accused raises other grounds in the motion to quash, he is
deemed to have waived that objection and to have submitted his person to the

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 jurisdiction of that court (Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9,
1993).

F.PROVISIONAL DISMISSAL
Q: What is meant by the concept of provisional dismissal?
ANS: The concept of a provisional dismissal contemplates that the dismissal of the
criminal action is not permanent and can be revived within the period set by the
Rules of Court (Sec. 8, Rule 117).

Q: May a provisional dismissal be used for invoking double jeopardy?

ANS: No. This is because the dismissal is with the express consent of the accused
(People v. Hewald, G.R. No. L-11315 March 18, 1959).

Q: What are the requisites that should be established for a provisional

dismissal?
ANS: The following essential requisites should be established as conditions sine
qua non for provisional dismissal:
a. There must be a motion by the prosecution with the express conformity of the
accused, or by the accused himself, or by both the prosecution and the accused
for a provisional dismissal of the case;
b. The offended party is notified of the motion for a provisional dismissal of the
case;
c. The court issues an order granting the motion and dismissing the case
provisionally;
d. The public prosecutor is served with a copy of the order of provisional dismissal
of the case (Sec. 8, Rule 117).

Q: When shall provisional dismissal become permanent?

ANS: The dismissal shall become permanent if:
a. The case is not revived within 1 year after the issuance of the order of
provisional dismissal with respect to the offenses punishable by
imprisonment not exceeding 6 years or a fine of any amount or both; or
b. The case is not revived within 2 years after the issuance of the order of
provisional dismissal with respect to offenses punishable by imprisonment
of more than 6 years (Sec. 8, Rule 117).

X. PRE-TRIAL
Q: What is the objective of a pre-trail?
ANS: Its main objective is to achieve an expeditious resolution of the case.

Q: When is pre-trial mandatory?

ANS: Pre-trial is mandatory in all criminal cases cognizable by the Sandiganbayan,
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court and Municipal Circuit Trial Court (Sec. 1, Rule 118).

Q: When should a pre-trial be conducted?

ANS: The court shall, after arraignment and within 30 days from the time the court
acquires jurisdiction over the person of the accused, unless a shorter period is
provided for by law, order a pre-trial (Sec. 1, Rule 118).

A.MATTERS TO BE CONSIDERED DURING PRE-TRIAL

Q: What happens during pre-trial?
ANS: The following matters are considered:

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 a. Plea bargaining;
b. Stipulation of facts;
c. Marking for identification of evidence;
d. Waiver of objections to admissibility of evidence;
e. Modification of the order of trial if the accused admits the charge but
interposes a lawful defense (reverse trial);
f. Other matters that will promote a fair and expeditious trial of the civil and
criminal aspects of the case (Sec. 1, Rule 118).

B.WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED

PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED
Q: What is plea bargaining?
ANS: It is the process whereby the accused and the prosecutor in a criminal case
work out a mutually satisfactory disposition of the case subject to court approval. It
usually involves the defendant’s pleading guilty to a lesser offense or to only one or
some of the counts of a multi-count indictment in return for a lighter sentence than
that possible for the graver charge (Black’s Law Dictionary, 6th ed., p.1152).

Q: When is plea bargaining not allowed?

ANS: It is not allowed in cases for violation of the Comprehensive Dangerous
Drugs Act of 2002 (A.M. No. 03-1-09-SC).

Q: What shall the court do if plea bargaining is agreed upon?

ANS: If plea bargaining is agreed upon, the court shall:
a. Issue an order to that effect;
b. Proceed to receive evidence on the civil aspect of the case; and
c. Render and promulgate judgment of conviction, including the civil liability or
damages duly established by the evidence (Ibid.).

C.PRE-TRIAL AGREEMENT
Q: What is the form of a pre-trial agreement?
ANS: All agreements or admissions made or entered into during the pre-trial
conference shall be reduced to writing and signed by the accused and counsel;
otherwise, the same shall not be used in evidence against the accused (Sec. 2,
Rule 118).

D.NON-APPEARANCE DURING PRE-TRIAL

Q: What is the effect of non-appearance during pre-trial?
ANS: If the counsel for the accused or the prosecutor does not appear in the pre-
trial conference, the court may impose the proper sanctions or penalties, if the
counsel or prosecutor absent does not offer an acceptable excuse for his lack of
cooperation (Sec. 3, Rule 118).

E.PRE-TRIAL ORDER
Q: What is a pre-trial order?
ANS: It is an order issued by the court within 10 days after the termination of the
pre-trial, reciting the actions taken, the facts stipulated, the admissions made, the
evidence marked, the number of witnesses to be presented and the schedule of the
trial. Such order shall bind the parties, limit the trial to matters not disposed of and
control the course of action during the trial, unless modified by the court to prevent
manifest injustice (Sec. 4, Rule 118).

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F.REFERRAL OF SOME CASES FOR COURT ANNEXED MEDIATION AND
JUDICIAL DISPUTE RESOLUTION
Q: What cases fall under the mandatory coverage for Court Annexed
Mediation and Judicial Dispute Resolution?
ANS: They are the following:
a. All civil cases and the civil liability of criminal cases covered by the Rule on
Summary Procedure, including the civil liability for violation of B.P. Blg. 22,
except those which by law may not be compromised;
b. All civil and criminal cases filed with a certificate to file action issued by the
Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised
Katarungang Pambarangay Law;
c. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal
Code;
d. The civil aspect of less grave felonies punishable by correctional penalties
not exceeding 6 years imprisonment, where the offended party is a private
person;
e. The civil aspect of estafa, theft and libel (A·M. No, 11-1-6-SC-PHILJA).

Q: What cases shall not be referred for Court Annexed Mediation and Judicial
Dispute Resolution?
ANS: The following shall not be referred:
a. Other criminal cases not covered above.
b. All cases under R.A. No. 9262, (Anti-Violence against Women and
Children). However, if the parties to this case inform the court of their
agreement to submit to mediation, they shall accordingly be referred (A·M.
No, 11-1-6-SC-PHILJA).

XI. TRIAL
A.INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW
Q: State the instances when the presence of the accused is required.
ANS: The presence of accused is required only:
a. During arraignment;
b. During trial, when ordered by the court for the purpose of his identification;
c. In the promulgation of the sentence except when the conviction is for a light
offense, in which case, it may be pronounced in the presence of his
counsel or a representative (Lavides v. Court of Appeals, G.R. No. 129670,
February 1, 2000).

B.REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF

ABSENCE OF WITNESS
Q: State the requisites for trial to be suspended on account of absence of
witness.
ANS: The requisites are the following:
a. The witness is material and appears to the court to be so;
b. The party who applies has been guilty of no neglect;
c. The witnesses can be had at the time to which the trial is deferred and
incidentally that no similar evidence could be obtained;
d. An affidavit showing the existence of the above circumstances must be
filed (Sec. 3, Rule 119).

Q: Distinguish between an absent witness and an unavailable witness.

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 ANS: An absent witness is one whose whereabouts are unknown or his
whereabouts cannot be determined by due diligence. An unavailable witness is one
whose whereabouts are known but his presence for trial cannot be obtained by due
diligence (Sec. 3 [b], Rule 119).

C.TRIAL IN ABSENTIA
Q: What is the concept of Trial in Absentia?
ANS: The absence of the accused without any justifiable excuse at the trial on a
particular date of which he had notice shall be considered a waiver of his right to be
present during that trial. When an accused under custody had been notified of the
date of the trial and escapes, he shall be deemed to have waived his right to be
present on said date and all subsequent trial dates until custody is regained. Trial
shall thus proceed in his absence (Sec. 1 [c], Rule 115).

Q: State the requisites for trial in absentia to be conducted.

ANS: The following are the requisites for trial in absentia:
a. The accused has been arraigned;
b. He has been duly notified of the trial; and
c. His failure to appear is unjustified.

D.REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE

PRESCRIBED PERIOD
Q: If the accused is not brought to trial within the time limit required, what is
the remedy?
ANS: The remedy of the accused is to file a motion to dismiss the information on
the ground of denial of his right to speedy trial. Failure of the accused to move for
dismissal prior to trial shall constitute a waiver of his right to dismiss. The dismissal
shall be subject to the rules on double jeopardy (Sec. 9, Rule 119).

E.REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE

WITNESS
Q: What are the requisites in order for a person to be discharged as a state
witness?
ANS: The following requisites must be complied with:
a. The discharge must be with the consent of the accused sought to be a
state witness;
b. There is absolute necessity for the testimony of the accused whose
discharge is requested;
c. No other direct evidence available for the prosecution except the testimony
of said accused;
d. Testimony can be substantially corroborated in its material points;
e. Accused does not appear to be the most guilty;
f. Accused has never been convicted of an offense involving moral turpitude
(Sec. 17, Rule 119).

Q: What is meant by “absolute necessity” for the testimony of the accused

whose discharge is sought?
ANS: The expedient of discharging an accused as state witness should be availed
of only when there is absolute necessity for his testimony, as when he alone has
knowledge of the crime, and not when his testimony would simply corroborate or
otherwise strengthen the evidence in the hands of the prosecution (Chua v. Court of
Appeals, G.R. No. 103397, August 28, 1996).

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F.EFFECTS OF THE DISCHARGE OF ACCUSED AS STATE WITNESS
Q: What are the effects if the accused is discharged as a state witness?
ANS: The following are the effects:
a. Evidence adduced in support of the discharge shall automatically form part
of the trial;
b. If the court denies the motion to discharge the accused as state witness,
his sworn statement shall be inadmissible in evidence;
c. Discharge of accused operates as an acquittal and bar to further
prosecution for the same offense, except if the accused fails or refuses to
testify against his co-accused in accordance with his sworn statement
constituting the basis of his discharge (Sec. 18, Rule 119).

G.DEMURRER TO EVIDENCE
Q: What is meant by demurrer to evidence?
ANS: Demurrer to evidence is a motion to dismiss based on insufficiency of
evidence (Sec. 23, Rule 119).

Q: When may a motion for demurrer to evidence be made?

ANS: The motion for demurrer to evidence may be made after the prosecution has
rested its case and the motion may be with or without leave of court (Ibid.).

Q: What is the effect of filing the demurrer to evidence with leave of court?
ANS: If the motion for demurrer to evidence is with leave of court and the demurrer
to evidence is denied, the accused still has the right to present evidence in his
defense (Ibid.).

Q: What is the effect of filing the demurrer to evidence without leave of court?
ANS: If the motion is filed without leave of court, the accused would be deemed to
have waived the right to present evidence and to have submitted the case for
decision on the basis of the prosecution’s evidence (Ibid.).

Q: Patricio, the accused in a theft case, filed a demurrer to evidence without

leave of court. The court denied the demurrer to evidence and Patricio moved
to present his evidence. The court denied Patricio’s motion to present
evidence and instead rendered judgment on the basis of the evidence for the
prosecution. Was the court correct in preventing Patricio from presenting his
evidence and rendering judgment on the basis of the evidence for the
prosecution? Why? (2001 Bar)
ANS: Yes. The demurrer to the evidence was filed without leave of court. The
Rules of Court provide that when the demurrer to evidence is filed without leave of
court, the accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution (Sec. 23, Rule 119;
Answers to the Bar Examination Questions by the UP Law Complex and Philippine
Law Schools Association 2006).

Q: What is the remedy of the accused if the demurrer to evidence is denied?

ANS: The order of denial of the demurrer to evidence is not reviewable by appeal
or certiorari before judgment. However, certiorari may be availed of when the denial
is tainted with grave abuse of discretion or excess of jurisdiction or oppressive
exercise of judicial authority (Sec. 23, Rule 119).

XII. JUDGMENT
Q: Define judgment.

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 ANS: It is the adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition of the proper penalty and civil liability provided
for by the law (Sec. 1, Rule 120).

A.REQUISITES OF A JUDGMENT
Q: What is the form required for the judgment?
ANS: The judgment should have the following form:
a. It must be written in the official language;
b. It must be personally and directly prepared by the judge; and
c. It must contain clearly and distinctly a statement of the facts and the law
upon which it is based (Ibid).

B.CONTENTS OF JUDGMENT
Q: What are the contents of the judgment?
ANS: If the judgment convicts the accused, it must state the:
a. Legal qualification of the offense constituted by the acts committed by the
accused;
b. Aggravating or mitigating circumstances attending its commission;
c. Participation of the accused, whether as principal, accomplice or
accessory;
d. Penalty imposed upon the accused;
e. Civil liability or damages caused by the wrongful act or omission, unless a
separate civil action has been reserved or waived.

If the judgment acquits the accused, it must state:

a. Whether or not the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt;
b. In either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist (Sec. 2, Rule 120).

Q: State the rules when there is variance between the offense charged and
the offense proved.
ANS: As a general rule, an accused can be convicted of an offense only when it is
both charged and proved. Variance between the allegation and proof cannot justify
conviction for either the offense charged or the offense proved unless either is
included in the other (Esguerra v. People of the Philippines, G.R. No. L-14313, July
26, 1960). However, when the offense as charged is included in or necessarily
includes the offense proved, the accused shall 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 (Sec. 4, Rule 120). In short, in case of variance
between what is alleged and what is proved, as long as the court has jurisdiction,
the conviction should always be for the lesser offense (Pineda, p. 487).

C.PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF

JUDGMENT IN ABSENTIA
Q: What is meant by promulgation?
ANS: It is the official proclamation or announcement of the judgment. It consists of
reading the judgment or sentence in the presence of the accused and any judge of
the court rendering the judgment (Sec. 6, Rule 120).

Q: Is the presence of the accused mandatory during the promulgation of

judgment?

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 ANS: As a general rule, yes. The presence of the accused is mandatory during the
promulgation of judgment, whether the same is for acquittal or conviction. There are
however two exceptions to this, which are:
a. When the judgment is for a light offense, in which case, the accused’s counsel or
representative may appear for him; and
b. When despite due notice to the accused or his bondsman or warden and
counsel, the accused failed to appear at the promulgation of the decision (Sec. 6,
Rule 120).

Q: What is the significance of promulgation?

ANS: The significance of promulgation of judgment lies in the fact that the right to
appeal accrues only upon proper promulgation of the judgment (Pineda, p. 495).

Q: What are the essential elements for the validity of a promulgation of

judgment in absentia?
ANS: The essential elements for its validity are:
a. That the judgment be recorded in the criminal docket; and
b. That a copy thereof shall be served upon the accused in his last known
address or to his counsel (Sec. 6, Rule 120).

D.WHEN DOES JUDGMENT BECOME FINAL (FOUR INSTANCES)

Q: When does judgment become final?
ANS: Except in cases where death penalty is imposed, judgment becomes final:
a. When the period for perfecting an appeal has lapsed;
b. When the sentence is partially or totally satisfied or served;
c. When the accused expressly waives in writing his right to appeal; or
d. When the accused applies for probation.

XIII. NEW TRIAL OR RECONSIDERATION

A.GROUNDS FOR NEW TRIAL
Q: State the grounds for a motion for a new trial.
ANS: The grounds for a new trial are the following:
a. Errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
b. New and material evidence discovered;
c. Other grounds which the court may determine in the exercise of its
discretion (Sec. 2, Rule 121).

B.GROUNDS FOR RECONSIDERATION

Q: What are the grounds for a motion for reconsideration?
ANS: The grounds for reconsideration are the following:
a. Errors of law in the judgment which requires no further proceedings;
b. Errors of fact in the judgment which also requires no further proceedings
(Sec. 3, Rule 121).

C.REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED BASED ON GROUND

OF NEWLY DISCOVERED EVIDENCE
Q: What are the requisites for granting a new trial on the ground of newly
discovered evidence?
ANS: The requisites are the following:
a. That the evidence was discovered after trial;

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 b. That such evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence;
c. That it is material, not merely cumulative, corroborative or impeaching; and
d. The evidence is of such a weight that it would probably change the
judgment if admitted.

D.EFFECTS OF THE GRANTING OF A NEW TRIAL OR RECONSIDERATION

Q: What are the effects of a grant of the motion for new trial or
reconsideration?
ANS: The grant of a new trial does not result in the acquittal of the accused but
rather the judgment rendered is set aside and the case will be tried anew as if no
previous trial had been held. The effects are:
a. When a new trial is granted on the ground of errors of law or irregularities
committed during the trial, all proceedings and evidence not affected by the
commission of such errors and irregularities shall stand, but those affected
thereby shall be set aside and taken anew. The court may, in the interest of
justice, allow the introduction of additional evidence.
b. When a new trial is granted on the ground of newly discovered evidence, the
evidence already taken shall stand, and the newly discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced, shall
be taken and considered together with the evidence already in the record.
c. In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside and a new judgment rendered accordingly (Sec. 6,
Rule 121).

E.APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES

Q: What is the “Neypes Doctrine?”
ANS: The Neypes doctrine provides that a party may appeal for a “fresh-period” of
15 days from the receipt or notice of the denial of a motion for reconsideration or for
new trial.

Q: Is the Neypes doctrine applicable in criminal cases?

ANS: Yes. The Court in Judith Yu v. Judge Samson-Tatad, (G.R. No. 170979,
February 9, 2011) held that the “fresh period” rule previously laid down in Neypes v.
Court of Appeals, shall likewise be applicable to criminal cases for the following
reasons:
a. Section 39 of B.P. Blg. 129 does not distinguish between a civil and criminal case
in setting the period to appeal at 15 days from the “notice of the final order”
appealed from. Note that the court in Neypes had held that the denial of the
Motion for Reconsideration or for New Trial is the “final order” referred to in B.P.
Blg. 129.
b. The provisions of Section 3 of Rule 41 and Section 6 of Rule 122, though
differently worded mean exactly the same. That the appeal period stops running
from the time a motion for new trial or reconsideration is filed, and begins to run
again upon receipt of the order denying such motions. There is then no reason
why the period of appeal which is stayed in civil cases should likewise not be
stayed in a criminal case when a motion for new trial or reconsideration is filed.

The Neypes rule was expressly declared to be applicable to appeals under Rules
40, 41, 42, 43, and 45. Rule 122, Sec. 3 however, of the Rules on Criminal
Procedure also allows appeal in criminal cases based under Rule 42 (Sec. 3 [b],
Rule 122) and Rule 45 (Sec. 3 [e], Rule 122). If the appeal in a criminal case is

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 predicated upon either Rule 42 or Rule 45, it is likewise submitted that the Neypes
rule should be made to apply.

XIV. APPEAL
Q: Discuss the concept of appeal.
ANS: Any party may appeal from a judgment or final order, unless the accused will
be placed in double jeopardy (Sec. 1, Rule 122).

A.EFFECT OF AN APPEAL
Q: What is the effect of an appeal in criminal cases?
ANS: In criminal cases, an appeal throws the case wide open for review and the
reviewing tribunal can correct errors or even reverse the trial court’s decision on
grounds other than those that the parties raised as errors. Therefore, the appellate
court may modify the penalty, indemnity or the damages awarded by the trial court,
even if the offended party had not appealed from said award, and the party who
sought a review of the decision was the accused. The rule is in contrast with the
general rule in civil cases where as a rule, no error will be considered by the
appellate court unless stated in the assignment of errors subject to certain
exceptions.

B.WHERE TO APPEAL
Q: Where does one file an appeal?
ANS: If the case was decided by the MTCs, the appeal should be filed with the
RTC. If the case was decided by the RTC, the appeal should be filed with the CA or
the SC in proper cases provided by law. If the case was decided by the CA, the
appeal should be filed with the SC (Sec. 3, Rule 121).

C.HOW APPEAL IS TAKEN

Q: How is appeal taken?
ANS: It depends on the court of origin and its jurisdiction:
a. Appeals taken from MTC to RTC – By filing a notice of appeal with the
court that rendered the judgment or final order appealed from, and serving
a copy to the adverse party;
b. Appeals from RTC to CA –
i. In appeals from the RTC in the exercise of its original jurisdiction, by
filing a notice of appeal with the court which rendered the judgment or
final order appealed from and serving a copy to the adverse party.
ii. In appeals of cases decided by the RTC in its appellate jurisdiction, by
filing a petition for review under Rule 42.
iii. Appeals where the penalty imposed by the RTC is reclusion perpetua,
life imprisonment or where a lesser penalty is imposed but involving
offenses committed on the same occasion or arising out of the same
occurrence that gave rise to the more serious offense for which the
penalty of death, reclusion perpetua or life imprisonment is imposed: by
filing a notice of appeal with the Court of Appeals.
c. Appeals where the RTC imposes the death penalty – No notice of appeals
is necessary in cases where the RTC imposed death penalty. The Court of
Appeals shall automatically review the judgment.

NOTE: Sec. 1 of R.A. No. 9346, approved June 24, 2006, now prohibits the
imposition of the death penalty.

d. Appeals from CA to SC

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 i. The appeal is generally made by filing a petition for review on certiorari
under Rule 45 with the SC, because the procedure for the review by the
SC of decisions in criminal cases rendered by the CA shall be the same
as in civil cases (Sec. 2, Rule 125, Rules of Court in relation to Sec. 1,
Rule 45, Rules of Court).
ii. In cases however, where the CA imposes reclusion perpetua, or life
imprisonment the judgment by the CA may be appealed to the SC by
notice of appeal filed with the CA (Sec. 13 [c], Rule 124, Rules of Court).
iii. All other appeals to the Supreme Court: by petition for review on
certiorari.

D.EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED

Q: Carlos and Ray were convicted of murder. Only Carlos appeals from the
conviction. Should the decision of the appellate court bind Ray?
ANS: It depends. An appeal taken by one or more of several accused shall not
affect those who did not appeal. In the case of the co-accused who did not appeal,
the judgment of the trial court insofar as it relates to him becomes final, and the
appellate court has no power to interfere therewith. Nevertheless, if the verdict of
the appellate court is favorable or applicable to him, the same may be given effect
(Sec. 11, Rule 122).

E.GROUNDS FOR DISMISSAL OF APPEAL

Q: What are the grounds for the dismissal of an appeal?
ANS: The appellate court, on motion of the appellee or motu proprio with notice to
the appellant in either case, may dismiss the appeal on the following grounds:
a. Failure on the part of the appellant to file brief within the reglementary period,
except when he is represented by a counsel de officio;
b. Escape of the appellant from prison or confinement;
c. When the appellant jumps bail; and
d. Flight of the appellant to a foreign country during the pendency of the appeal
(Sec. 8, Rule 122).

Q: What is the effect if the accused used a wrong mode of appeal?

ANS: A wrong mode of appeal will not vest, or give the court appellate jurisdiction
(Sec. 5 [f], Rule 56).

XV. SEARCH AND SEIZURE

A.NATURE OF A SEARCH WARRANT
Q: What is a search warrant?
ANS: A search warrant is an order in writing issued in the name of the People of
the Philippines, signed by a judge and directed to a peace officer, commanding him
to search for personal property described therein and bring it before the court (Sec.
1, Rule 126).

B.DISTINGUISH FROM WARRANT OF ARREST

Q: What are the distinctions between a warrant of arrest and a search
warrant?
ANS:
DIFFERENCES
Warrant of Arrest Search Warrant
The rules on arrest are concerned The rules on searches and seizures
with the seizure of a person. A cover a wider spectrum of matters

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 search may follow an arrest but the
search must be incident to a lawful
arrest.
Order directed to the peace officer
to execute the warrant by taking the
person stated therein into custody
that he may be bound to answer for
the commission of the offense.
In order to determine probable
cause to arrest, the judge (not the
prosecutor) must have sufficient
facts in his hands that would tend to
show that a crime has been
committed and that a particular
person committed it.
The judge is not required to make a
personal examination before issuing
a warrant of arrest.
Judge is merely called upon to
examine and evaluate the report of
the fiscal and the evidence
Does not become stale.
An arrest may be made at any time
of the day or night (Sec. 6, Rule
113).
on the search of both persons and
places and the seizure of things
found therein.
Order in writing in the name of the
RP signed by the judge and directed
to the peace officer to search
personal property described therein
and to bring it to court (Sec. 1).
Probable cause to search requires
facts to show that particular things
connected with a crime are found in
a specific location.
The judge must, before issuing the
search warrant, personally examine
the complainant and the witnesses
he may produce.
Examination must be probing. Not
enough to merely adopt the
questions and answers asked by a
previous investigator
Validity is for 10 days only (Sec. 9).
A search warrant is generally served
in the day time, unless there be a
direction in the warrant that it may
be served at any time of the day or
night (Sec. 9, Rule 126).

C.APPLICATION FOR A SEARCH WARRANT, WHERE FILED

Q: Where should one file an application for a search warrant?
ANS: As a general rule, an application for a search warrant should be filed with the
court within whose territorial jurisdiction the crime was committed (Sec. 2, Rule
126). There are, however, recognized exceptions:
a. For compelling reasons, it can be filed with the court within whose judicial region
the offense was committed or where the warrant is to be served;
b. If the criminal action has already been filed, the application can only be made in
the court where the criminal action is pending;
c. In case of search warrants involving heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions as well as violations of the
Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code,
the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as
amended, and other relevant laws that may hereafter be enacted by Congress,
and included herein by the Supreme Court, the Executive Judges and, whenever
they are on official leave of absence or are not physically present in the station,
the Vice-Executive Judges of the RTCs of Manila and Quezon City shall have
authority to act on applications filed by the NBI, PNP and the Anti-Crime Task
Force (ACTAF). Such warrants may be served in places outside the territorial
jurisdiction of the said courts.

D.PROBABLE CAUSE
Q: What is the meaning of probable cause in relation to a search warrant?

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 ANS: Probable cause for search warrant means such facts and circumstances
which could lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the offense are
in the place sought to be searched.

E.PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES

Q: What is the procedure to be followed in the conduct of the examination of
the complainant and the witnesses he may produce?
ANS: The procedure involves:
a. The examination must be personally conducted by the judge;
b. The examination must be in the form of searching questions and answers;
c. The complainant and the witnesses shall be examined on those facts
personally known to them;
d. The statements must be in writing and under oath; and
e. The sworn statements of the complainant and the witnesses, together with
affidavits submitted, shall be attached to the record (Sec. 5, Rule 126).

F.PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED

Q: What is meant by the requirement that the warrant must particularly
describe the place to be searched and the person or things to be seized?
ANS: The provision requiring a particular description of the items or things to be
seized is designed to prevent general searches and avoid the seizure of a thing not
described in the warrant. Particularity is said to be satisfied if the warrant imposes a
“meaningful restriction” upon the objects to be seized. A “meaningful restriction” is
one that leaves nothing to the discretion of the officer who conducts the search.

G.PERSONAL PROPERTY TO BE SEIZED

Q: State the nature of the personal property to be seized.
ANS: The personal property to be seized may be:
a. Subject of the offense;
b. Stolen or embezzled and other proceeds or fruits of the offense;
c. The means used or intended to be used for committing an offense (Sec. 3,
Rule 126).

H.EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT

Q: Discuss the instances where searches and seizures are allowed to be
carried out even without a search warrant?
ANS: A search and seizure without a warrant is still reasonable if conducted under
the following circumstances:
a. Search Incident to a Lawful Arrest – The arrest must precede the search and
not the reverse. Hence, a person illegally arrested cannot be validly searched
without a warrant. For an arrest to be lawful, the arrest may either be by virtue of
a warrant lawfully procured and by virtue of a warrantless arrest authorized under
Sec. 5 of Rule 113 and other applicable provisions. The rule limits the search to
the following:
i. For dangerous weapons;
ii. For anything which may have been used in the commission of an offense; or
iii. For anything which constitute proof in the commission of an offense.

NOTE: The warrantless search and seizure as an incident to a lawful arrest may
extend beyond the person of the one arrested to include the premises or
surrounding under his immediate control. The phrase “within the area of his

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 immediate control” means the area from within which he might gain possession of
a weapon or destructible evidence.

b. Consented Search – No search warrant is required where the person to be

searched has given his consent thereto. The right to be secure from
unreasonable search may, like every right, be waived, and such waiver may be
made expressly or impliedly. A consented search is reasonable only if kept within
the bounds of the actual consent.

c. Search of Moving Vehicle – A warrantless search of a moving vehicle is justified

on the ground that it is not practicable to secure a warrant because the vehicle
can be quickly moved out of the locality or jurisdiction in which the warrant must
be sought.

d. Check Points; Body Checks in Airport – Under exceptional circumstances,

checkpoints may be allowed and installed by the government. Searches
conducted in checkpoints are valid for as long as they are warranted by
exigencies of public order and are conducted in a way least intrusive to motorists.

e. Plain View Situation – The elements of the plain view exception are:
i. Prior valid intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties;
ii. The evidence was inadvertently discovered by the police who have the right to
be where they are;
iii. The evidence must be immediately apparent; and
iv.“Plain view” justified mere seizure of evidence without further search.

f. Stop and Frisk Situation – This is a limited protective search of outer clothing
for weapon. A genuine reason must exist, in light of the police officer’s
experience and surrounding conditions, to warrant the belief that the person who
manifests unusual suspicious conduct has weapons or contraband concealed
about him. Such “stop-and-frisk” practice serves a dual purpose:
i. The general interest of effective crime prevention and detection; and
ii. The safety of the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could be used
against him.

g. Enforcement of Custom Laws – For the enforcement of customs duties and

tariff laws, the Collector of Customs is authorized to effect searches and seizures
conformably with the provision of the said laws. The Tariff and Customs Code
does not require a search warrant in that case. Persons suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines
contrary to law may be searched without the need of a search warrant. However,
the search of a dwelling house may be made only upon warrant issued by a
judge.

h. Emergency (Based on Probable Cause under Extraordinary Circumstances)

i. Others:
i. When it is an incident of inspection;
ii. Enforcement of health and sanitary laws;
iii. In times of war within the area of military operation.

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 Q: What are the remedies from an unlawful search and seizure?
ANS: The accused shall have two alternative remedies available to him in such
instances:
a. Motion to quash the search warrant – A search warrant illegally obtained or
secured or which is issued in violation of the constitution or the rules may be
quashed through the proper motion.
b. Motion to suppress the evidence – When evidence is illegally obtained, such
motion to suppress is in order.

XVI. PROVISIONAL REMEDIES

A.NATURE
Q: What are provisional remedies?
ANS: These are remedies which the party litigants may resort to for the
preservation or protection of their rights or interests during the pendency of the
action. In relation to criminal proceedings, the provisional remedies under Rule 127
are proper only where the civil action for the recovery of civil liability ex delicto has
not been waived, or is not reserved when such reservation of a separate action may
be made. In other words, the provisional remedies in civil actions insofar as they
are applicable, may be availed of in connection with the civil action deemed
instituted with the criminal action.

B.KINDS OF PROVISIONAL REMEDIES

Q: What are the kinds of provisional remedies available in criminal
proceedings?
ANS: They are:
a. Attachment – Preliminary attachment is available in the following case:
i. When the accused is about to abscond from the Philippines;
ii. When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the
accused who is a public officer, officer of a corporation, 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 willful violation of duty;
iii. When the accused has concealed, removed or disposed of his property,
or is about to do so; and
iv.When the accused resides outside the Philippines.

NOTE: Grounds for a preliminary attachment in a criminal case are not as

varied as the grounds for preliminary attachment in a civil case.

b. Preliminary Injunction
c. Receivership
d. Delivery of personal property
e. Support pendente lite.

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 EVIDENCE
I. GENERAL PRINCIPLES
A.CONCEPT OF EVIDENCE
Q: Define Evidence.
ANS: Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a
judicial proceeding, the truth respecting a matter of fact (Sec. 1, Rule 128).
Evidence is a means of proving a fact. It is offered to ascertain the truth respecting
a matter of fact (Riano, Evidence: The Bar Lecture Series, 2009 ed., p.3).

B.SCOPE OF THE RULES ON EVIDENCE

Q: What is the scope of the rules on evidence?
ANS: The rules of evidence shall be the same in all courts and in all trials and
hearings, except as otherwise provided by law or by these rules (Sec. 2, Rule 128).

Q: Are the rules of evidence such as formal offer of evidence applicable in a

petition for naturalization?
ANS: No. Significantly, Sec. 4 of Rule 1 provides for non-applicability of the Rules
of Court, including necessarily the Rules of Evidence, to certain specified
proceedings. These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings and other cases not herein
provided for except by analogy or in a suppletory character and whenever
practicable and convenient (Ong Chia v. Republic of the Philippines, G.R. No.
127240, March 27, 2000). Rules of Evidence are not strictly observed in
proceedings before administrative bodies where decisions may be reached on the
basis of position papers (Bantolino v. Coca Cola Bottlers Inc., G.R. No. 153660,
June 10, 2003).

C.EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES

Q: Distinguish between evidence in civil cases and evidence in criminal
cases.
ANS: The distinctions are the following:

DISTINCTIONS
Evidence in Criminal
Evidence in Civil Cases
Cases
The claimant must show The prosecution must
Quantum of
a preponderance of prove guilt beyond
Proof
evidence. reasonable doubt.
In criminal cases, except
those involving quasi-
An offer of compromise offenses or those allowed
is not an admission of by law to be
Offer of
liability and is not compromised, the offer of
Compromise
admissible against the compromise by the
offeror. accused may be received
in evidence as an implied
admission of guilt.
General denial is General denial is not
General Denial
allowed. allowed.

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 Judicial admission
Withdrawal of Withdrawn plea is
withdrawn becomes
Plea/Admission inadmissible.
extrajudicial admission.
Generally, there exists
no presumption in favor The accused enjoys the
Presumption of
of either party, except in presumption of his
Innocence
cases specifically innocence.
provided for by law.
Party who loses is the
Equiponderance
one who has the burden Accused is acquitted.
of Evidence
of proof.
Presence of
More than one is
Circumstantial Not applicable.
required.
Evidence
Privileged
Communication Applicable. Not applicable.
(Doctor-Patient)
A party or defendant may The accused cannot be
Compulsion as a
be compelled to be a compelled to be a
Witness
witness. witness.
Cross-
Examination in
Not applicable. Applicable.
Summary
Procedure

D.PROOF VERSUS EVIDENCE

Q: What is the difference between proof and evidence?
ANS: Evidence is the mode and manner of proving competent facts in judicial
proceedings (Bustos v. Lucero, G.R. No. L-2068, October 20, 1948), while proof is
the result or effect of evidence. When the requisite quantum of evidence of a
particular fact has been duly admitted and given weight, the result is called the
proof of such fact (Regalado, Remedial Law Compendium, Vol II, 2008 ed, p. 698).

E.FACTUM PROBANS VERSUS FACTUM PROBANDUM

Q: What is the difference between factum probans and factum probandum?
ANS : Factum probandum is the fact to be proved; the fact which is in issue and to
which the evidence is directed. On the other hand, factum probans is the fact or
probative or evidentiary fact tending to prove the fact in issue (Riano, p. 23, citing
Black’s Law Dictionary).

Q: P claims to have been injured by the negligence of D who denies having

been negligent. State the factum probandum and the factum probans of the
suit.
ANS: The negligence of D, and the causal connection between such negligence
and the injuries of P taken as a whole, constitute the factum probandum. The
evidence offered by P, whether it be object, documentary or testimonial, constitute
the materials to prove the liability of D. The totality of the evidence to prove the
liability refers to the factum probans (Riano, p. 23).

F.ADMISSIBILITY OF EVIDENCE

Requisites for Admissibility of Evidence

Q: What are the requisites for admissibility of evidence?

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ANS: For evidence to be admissible, two elements must concur:
a. The evidence must be relevant – It must have such a relation to the fact in
issue as to induce belief in its existence or non-existence. Relevancy is
determinable by logic and human experience.
b. The evidence must be competent – It must neither be excluded by law nor
by the rules. Competency is determined by the prevailing exclusionary
rules of evidence (Regalado, p.704).

Q: What is the exclusionary rule?

ANS: The exclusionary rule is a judicially created remedy which provides that
evidence obtained in violation of a defendant’s constitutional rights must be
suppressed from government’s case in chief (Herrera, Remedial Law, Vol. V, 1999
edition, p. 31).

Q: What is the scope of exclusionary rule?

ANS: The Exclusionary Rule includes the following constitutional rights:
a. The right against unreasonable search and seizure (Sec. 2, Art. III, 1987
Constitution);
b. The right to privacy and inviolability of communication (Sec. 3 [1], Art. III,
1987 Constitution);
c. The rights of person under investigation for an offense (Sec. 12, Art. III,
1987 Constitution);
d. The right against self-incrimination (Sec. 17, Art. III, 1987 Constitution).

Q: What is Fruit of Poisonous Tree doctrine?

ANS: This doctrine posits that all evidence (fruit) derived from an illegal search (the
poisonous tree) must be suppressed, whether it was obtained directly through the
illegal search itself or indirectly using information obtained in illegal search (Wong
Suan v. United States, 371 U.S. 471, January 14, 1963). Once the primary source
is shown to have been unlawfully obtained, any secondary or derivative evidence
derived from it is also inadmissible (Herrera, p. 31).

Relevance of Evidence and Collateral Matters

Q: Define collateral matters.
ANS: A matter is collateral when it is on a parallel or diverging line, merely
additional or auxiliary (Black’s Law Dictionary, 5th ed., p. 237).

Q: Is evidence on collateral matters allowed?

ANS: As a general rule, no. It is not allowed because it does not have direct
relevance to the fact in issue. However, a collateral matter may be admitted if it
tends in any reasonable degree to establish the probability or improbability of the
fact in issue (Sec. 4, Rule 128).

Q: Give instances when evidence on collateral matters may be admitted.

ANS: Evidence on collateral matters is allowed in the following instances:
a. Although evidence of character is generally inadmissible (Sec. 51, Rule
130), the accused may prove his good moral character which is pertinent to
the moral trait involved in the offense charged (Sec. 51 [a] [1], Rule 130,
Rules of Court);
b. In civil cases, evidence of moral character of a party is admissible when
pertinent to the issue of character involved in the case (Sec. 5 [1] [b], Rule
130);

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 c. Evidence of the good character of a witness is admissible if his character
has been previously impeached (Sec. 14, Rule 132).

Multiple Admissibility
Q: May evidence be admissible for more than one purpose?
ANS: Yes. Where the evidence is relevant and competent for two or more
purposes, such evidence may be admitted for any or all the purposes for which it is
offered provided it satisfies all the requirements of law for its admissibility therefor
(Riano, p.26).

Conditional Admissibility
Q: P filed an action for recovery of ownership of a parcel of land against D.
The complaint alleged that P is the owner of the property. During trial, Mr. P
testified and adduced evidence that sometime in 1995, the property subject of
the action was bought by O from a certain M. D objected on the ground that
the evidence is irrelevant to support the claim of ownership of P. May P ask
the court to conditionally allow the testimony?
ANS: Yes. Where the evidence at the time of its offer appears to be immaterial or
irrelevant unless it is connected with the other facts to be subsequently proved,
such evidence may be received on the condition that the other facts will be proved
thereafter; otherwise, the evidence given will be stricken out (Riano, p. 30).

Curative Admissibility
Q: What is the doctrine of curative admissibility?
ANS: The doctrine of curative admissibility states that where improper evidence
was admitted over the objection of the opposing party, he should be permitted to
contradict it with similar improper evidence. Otherwise it would result in disparity of
rulings to his prejudice (Riano, p.30).

Direct and Circumstantial Evidence

Q: Define direct evidence.
ANS: Direct evidence means evidence which if believed, proves the existence of a
fact in issue without inference or presumption (State v. Mclure, Mo. App. 504 S.W.
2d, 664, 668).

Q: What is meant by circumstantial evidence?

ANS: Circumstantial evidence is that evidence that indirectly proves a fact in issue
through an inference which the fact finder draws from the evidence established
(People of the Philippines v. Matito, G.R. No. 144405, February 24, 2004).

Q: A was accused of having raped X. A pair of short pants allegedly left by A

at the crime scene was offered in evidence. Rule on its admissibility. (1998
Bar)
ANS: The evidence may be admissible as circumstantial evidence although not
sufficient in itself to support a conviction. To be sufficient for conviction, the
following requisites must concur:
a. There is more than one circumstance;
b. The facts from which the inferences are derived are proven; and
c. The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt (Sec. 4, Rule 133; People of the Philippines v. Garcia,
G.R. No. 174479, June 17, 2008).

Positive and Negative Evidence

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 Q: Distinguish positive evidence from negative evidence.
ANS: Evidence is positive when a witness affirms in the stand that a certain state of
facts does exist or that a certain event happened; it is negative when the witness
states that an event did not occur or that the state of facts alleged to exist does not
actually exist. Thus, the testimony of W that he saw P fire a gun at the victim is
positive evidence, while the testimony of W that he could not have fired the gun
because he was not armed during the incident, is negative evidence (Riano, p. 44-
45).

Q: Is a negative result on a paraffin test conclusive evidence that one has not
fired a gun?
ANS: No. It is possible for a person to fire a gun and yet bear no traces of nitrates
or gunpowder, as when the culprit washes his hands or wears gloves (People of the
Philippines v. Cerilla, G.R. No. 177147, November 28, 2007).

Competent and Credible Evidence

Q: What is meant by competent evidence?
ANS: Competent evidence refers to evidence which is not excluded by law in a
particular case (Riano, citing Moran, p. 66).

Q: What is meant by the term “credibility”?

ANS: Credibility refers to worthiness of belief, that quality which renders a witness
worthy of belief (Black’s Law Dictionary, 5th ed., 330). Whether or not a witness or
evidence is credible is an issue addressed to the judgment of the trial court (People
of the Philippines v. Castro, G.R. No. 172874, December 17, 2008).

G.BURDEN OF PROOF AND BURDEN OF EVIDENCE

Q: Distinguish burden of proof from burden of evidence.
ANS: The differences are the following:
a. Burden of proof is the obligation 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 (Sec. 1, Rule 130); Burden of evidence is the
duty of a party to go forward with the evidence to overthrow any prima facie
presumption against him (Bautista v. Sarmiento, G.R. No. L-45137,
September 23, 1985);
b. Burden of proof does not shift and remains throughout the entire case
exactly where the pleadings originally placed it (Bank of the Philippines
Islands v. Sps. Royeca, G.R. No. 17664, July 21, 2008); while burden of
evidence shifts from party to party depending on who wants to establish a
legal right in his favor (Riano, p. 407).

H.PRESUMPTIONS
Q: Define presumption.
ANS: Presumption is an inference as to the existence of a fact not actually known,
arising from its usual connection with another which is known or a conjecture based
on past experience as to what course human affairs ordinarily take (Martin v. Court
of Appeals, G.R. No. 82248, January 30, 1992).

Conclusive Presumptions
Q: When is a presumption deemed conclusive?
ANS: A presumption is conclusive when the presumption becomes irrefutable upon
presentation of evidence and any evidence tending to rebut the presumption is

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 inadmissible. The following are the conclusive presumptions under the Rules of
Court:
a. Estoppel in pais – Whenever a party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a particular thing to be true
and to act upon such belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it.
b. Estoppel against tenant – The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the relation of landlord and tenant
between them (Sec. 2, Rule 131).

Disputable Presumptions
Q: What are Disputable Presumptions?
ANS: These presumptions are satisfactory if uncontradicted, but may be
contradicted or overcome by other evidence. When evidence that rebuts the
presumption is introduced, the force of the presumption disappears. Sec. 3, Rule
131 of the Rules of Court enumerates the different disputable presumptions.

I.LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE

Q: How are the Rules of Evidence construed?
ANS: The Rules of Evidence must be liberally construed (Sec. 6, Rule 1).
Procedural rules are mere tools intended to facilitate rather than to frustrate the
attainment of justice. A strict and rigid application of the rules must be avoided
when it would subvert their primary objective of enhancing substantial justice.
However, to justify the relaxation of the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have always been required (Riano, p.
46-47).

J.QUANTUM OF EVIDENCE

Proof beyond Reasonable Doubt

Q: What is meant by “proof beyond reasonable doubt”?
ANS: This quantum of evidence has application to criminal prosecutions. It does
not mean such degree of proof, as, excluding possibility of error, produces absolute
certainty. Only moral certainty is required, or that degree of proof which produces
conviction in an unprejudiced mind (Sec. 2, Rule 133).

Preponderance Of Evidence
Q: What is meant by preponderance of evidence?
ANS: This is the quantum of evidence applicable to civil cases. It means that the
evidence adduced by one side is, as a whole, superior to or has greater weight than
that of the other (Bank of the Philippine Islands v. Reyes, G.R. No. 157177,
February 11, 2008).

Q: What are the factors which the court may consider in determining whether
or not there is preponderance of evidence?
ANS: In determining whether or not there is preponderance of evidence, the court
may consider the following:
a. All the facts and circumstances of the case;
b. The witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the
facts to which they testify, the probability or improbability of their testimony;
c. The witnesses’ interest or want of interest, and also their personal credibility so
far as the same may ultimately appear in the trial;

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 d. The number of witnesses, although it does not mean that preponderance is
necessarily with the greater number (Sec. 1, Rule 133).

Substantial Evidence
Q: Define substantial evidence.
ANS: This degree of evidence applies to cases filed before administrative and
quasi-judicial bodies. It requires that in order to establish a fact, the evidence
should constitute that amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion (Sec. 5, Rule 133).

Q: What is the burden of proof in petitions for writ of amparo and habeas
data?
ANS: The parties shall establish their claims by substantial evidence in petitions for
writ of amparo (Sec. 17, The Rule on the Writ of Amparo) and habeas data (Sec.
16, The Rule on the Writ of Habeas Data).

Clear and Convincing Evidence

Q: What is meant by clear and convincing evidence?
ANS: 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. It is intermediate,
being more than preponderance, but not to the extent of such certainty as required
beyond reasonable doubt in criminal cases (Black’s Law Dictionary, 5th Ed., 227).

Q: What is the standard of proof required in granting or denying bail in

extradition proceedings?
ANS: An extradition proceeding being sui generis, the standard of proof required in
granting or denying bail can neither be the proof beyond reasonable doubt in
criminal cases nor the standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of substantial evidence used
in administrative cases cannot likewise apply given the object of extradition law
which is to prevent the prospective extradite from fleeing our jurisdiction. The
standard should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. Thus, the potential extradite must prove by “clear and
convincing evidence” that he is not a flight risk and will abide with all the orders and
processes of the extradition court (Gov’t. of Hongkong Special Administrative
Region v. Olalia, Jr., G.R. No. 153675, April 19, 2007).

II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

Q: What is meant by judicial notice?
ANS: Judicial notice is the cognizance of certain facts which judges may properly
take and act upon without need of proof. It is based on considerations of
expediency and convenience and displaces the necessity of evidence on a settled
matter to save time, labor and expense in introducing such evidence (Regalado,
p.833).

A.WHAT NEED NOT BE PROVED

Q: What are matters that need not be proved?
ANS: The following matters need not be proved:
a. Facts subject to judicial notice (Secs. 1 to 3, Rule 129);
b. Facts admitted or not denied, provided they have been sufficiently alleged
(Sec. 1, Rule 8);
c. Facts legally presumed (Rule 131);
d. Agreed and admitted facts (Sec. 4, Rule 129); and

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 e. Immaterial allegations.

B.MATTERS OF JUDICIAL NOTICE

Mandatory
Q: When is judicial notice mandatory?
ANS: The court shall take judicial notice of the following:
a. The existence and territorial extent of states
b. Their political history, forms of government, and symbols of nationality
c. The law of nations
d. The admiralty and maritime courts of the world and their seals
e. The political constitution and history of the Philippines
f. The official acts of the legislative, executive and judicial departments of the
Philippines
g. The laws of nature
h. The measure of time
i. The geographical divisions (Sec. 1, Rule 129).

Discretionary
Q: When is judicial notice discretionary?
ANS: Judicial notice is discretionary in the following matters:
a. Matters which are of public knowledge
b. Matters capable of unquestionable demonstration
c. Matters ought to be known to judges because of their judicial functions
(Sec. 2, Rule 129).

C.JUDICIAL ADMISSIONS
Q: What is judicial admission?
ANS: A judicial admission is an admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof (Sec. 4, Rule
129).

Q: State the elements of a judicial admission.

ANS: They are the following:
a. The admission must be made by a party to the case;
b. The admission to be judicial, must be made in the court of the proceedings
in the same case;
c. No particular form is required for an admission (Riano, p. 99).

Effect of Judicial Admissions

Q: What is the effect of judicial admissions?
ANS: Judicial admissions have the following effects:
a. A matter admitted need no longer be proved ; and
b. The matter admitted cannot be contradicted because they are conclusive
upon the party making it (Sec. 4, Rule 129).

How Judicial Admissions may be Contradicted

Q: How may judicial admissions be contradicted?
ANS: Judicial admissions may be contradicted in the following instances:
a. Upon a showing that the admission was made through palpable mistake;
b. When it is shown that no such admission was made (Sec. 4, Rule 129).

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D.JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATION AND MUNICIPAL
ORDINANCE
Q: Can the Philippine court take judicial notice of foreign laws?
ANS: In general, and in the absence of statutory requirement to the contrary, the
courts will not take judicial notice of the laws prevailing in another country. Foreign
laws must be alleged and proved. In the absence of proof, the foreign law will be
presumed to be the same as the laws of the Philippines under the doctrine of
processual presumption (Northwest Orient Airlines v. Court of Appeals, G.R. No.
112573, February 9, 1995).

NOTE: Where the foreign law is within the actual knowledge of the court such as
when the law is generally well known, had been ruled upon in previous cases
before it and none of the parties claim otherwise, the court may take judicial notice
of the foreign law (PCIB v. Escolin, G.R. Nos. L-27860 and L-27896, March 29,
1974).

Q: Can the Philippine courts take judicial notice of the law of nations?
ANS: Yes. The law of nations is subject to a mandatory judicial notice. Under the
Philippine Constitution, we adopt the generally accepted principles of international
law as forming part of the law of the land. Being part of the law of the land, they are
therefore technically in the nature of local laws and thus subject to mandatory
judicial notice (Riano, p.89).

Q: When should the court take judicial notice of municipal ordinances?

ANS: Courts may take judicial notice of municipal ordinances in the following
instances:
a. Municipal courts must take judicial notice of the municipal ordinances in force in
the municipality in which they sit (United States v. Blanco, G.R. No. L-12435,
November 9, 1917);
b. The Regional Trial Courts should take judicial notice of the municipal ordinances
within their jurisdiction only when so required by law, or on appeal of cases from
the MTC in which the latter took notice of such ordinance. Such court must take
judicial notice also of municipal ordinances on appeal to it from the inferior court
in which the latter judicial took notice (Riano, p.91);
c. The Court of Appeals may take judicial notice of municipal ordinances because
nothing in the Rules prohibits it from taking cognizance of an ordinance which is
capable of unquestionable demonstration (Gallego v. People of the Philippines,
G.R. No. L-18247, August 31, 1963).

III. OBJECT (REAL) EVIDENCE

A.NATURE OF OBJECT EVIDENCE
Q: What is object evidence?
ANS: Object evidence refers to those which are addressed to the senses of the
court (Sec. 1, Rule 130).

B.REQUISITES FOR ADMISSIBILITY

Q: State the requisites for admissibility of object evidence.
ANS: They are the following:
a. The object must be relevant to the fact in issue.
b. The object must be authenticated before it is admitted.
c. The authentication must be made by a competent witness.
d. The object must be formally offered in evidence.

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 e. It must meet any other additional requirement set by law (Riano, p.147).

C.CATEGORIES OF OBJECT EVIDENCE

Q: What are the categories of object evidence?
ANS: They are the following:
a. Unique objects – objects that have readily identifiable marks.
b. Objects made unique – objects that are made readily identifiable.
c. Non-unique objects – objects with no identifying marks and cannot be
marked (Riano, p.148, citing American jurisprudence).

D.DEMONSTRATIVE EVIDENCE
Q: Define demonstrative evidence.
ANS: It is tangible evidence that merely illustrates a matter of importance in the
litigation, such as maps, diagrams, models, summaries and other material specially
made for litigation. It is not the actual thing but rather represents or demonstrates
the real thing (Riano, p.160).

E.VIEW OF AN OBJECT OR SCENE

Q: When may the court view an object or crime scene outside the courtroom?
ANS: Where the object is immovable or inconvenient to remove, the court may go
to the place where the object is located. An inspection made outside the courtroom
should be made in the presence of the parties or at least with previous notice to
them of the time and place thereof (Riano, p.165).

F.CHAIN OF CUSTODY IN DRUG CASES IN RELATION TO SECTION 21 OF THE

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
Q: What is the chain of custody in drug cases?
ANS: It is the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment
of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of
the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and used in court
as evidence, and the final disposition (People of the Philippines v. Obminoris, G.R.
No. 181492, December 16, 2008).

Q: What is the rationale for the chain of custody rule?

ANS: The purpose of establishing a chain of custody is to guaranty the integrity of
the physical evidence and to prevent the introduction of evidence which is not
authentic (Lester v. State, 82 Md App 391, 571 A2d 897).

The chain of custody rule also applies in the assessment of the probative value of
DNA evidence. Issues on how the biological samples were collected, handled, and
the possibility of contamination will be taken into consideration (Sec. 6 [a], Rule on
DNA Evidence).

G.RULE ON DNA EVIDENCE (AM No. 06-11-5-SC)

Meaning of DNA
Q: What is DNA?

216
ANS: DNA (Deoxyribonucleic Acid) is the chain of molecules found in every
nucleated cell of the body. The totality of an individual’s DNA is unique for the
individual, except identical twins (Sec. 3 [b]).

Applicable for DNA Testing Order

Q: When may a party apply for DNA Testing?
ANS: The appropriate court may, at any time, either motu proprio or on application
of a person having a legal interest in the matter in litigation, order a DNA testing.
Such order shall issue after due hearing and notice to the parties upon a showing
that:
a. A biological sample exists that has relevance to the case
b. The biological sample:
i. Was not previously subjected to the type of DNA testing now requested, or
ii. If it was previously subjected to DNA testing, but the results may require
confirmation for good reasons.
iii. The DNA testing uses a scientifically valid technique,
iv. The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case, and
v. The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy and integrity of the DNA testing (Sec. 4).

Post Conviction DNA Testing; Remedy

Q: What are the rules for Post-Conviction DNA Testing?
ANS: Post-conviction DNA testing may be available, without need of prior court
order, to the prosecution or any person convicted by final and executory judgment
provided that:
a. A biological sample exists;
b. Such sample is relevant to the case; and
c. The testing would probably result in the reversal or modification of the judgment
of conviction (Sec. 6).

Q: What is the remedy If the results of the Post-Conviction DNA Testing is

favorable to the Accused?
ANS: The convict or the prosecution may file a petition for a writ of habeas corpus
in the court of origin. If the court finds that the petition is meritorious, if shall reverse
or modify the judgment of conviction and order the release of the convict, unless
continued detention is justified for a lawful cause. A similar petition may be filed
either in the Court of Appeals or the Supreme Court, or with any member of said
courts, which may conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders (Sec. 10).

Assessment of Probative Value of DNA Evidence and Admissibility

Q: What are the factors to be considered in the assessment of Probative
Value of DNA Evidence?
ANS: The court shall consider the following:
a. The chain of custody, including how the biological samples were collected,
how they were handled, and the possibility of contamination of the
samples;
b. The DNA testing methodology, including the procedure followed in
analyzing the samples, the advantages and disadvantages of the
procedure, and compliance with the scientifically valid standards in
conducting the tests;

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 c. The forensic DNA laboratory, including accreditation by any reputable
standards-setting institution and the qualification of the analyst who
conducted the tests. If the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and credibility shall be
properly established; and
d. The reliability of the testing result.

NOTE: The Rules of Court provisions concerning appreciation of evidence

shall apply suppletorily (Sec. 7).

Rules on Evaluation of Reliability of the DNA Testing Methodology

Q: What are the rules on the Evaluation of the Reliability of the DNA Testing
Methodology?
ANS: In evaluating whether the testing result is reliable the court shall consider:
a. The falsifiability of the principles or methods used, that is, whether the
theory or technique can be and has been tested;
b. The subjection to peer review and publication of the principles or
methods;
c. The general acceptance of the principles or methods by the relevant
scientific community;
d. The existence and maintenance of standards and controls to ensure the
correctness of data generated;
e. The existence of an appropriate reference population database; and
f. The general degree of confidence attributed to mathematical calculations
used in comparing DNA profiles and the significance and limitation of
statistical calculations used in comparing DNA profiles (Sec. 8).

IV. DOCUMENTARY EVIDENCE

A.MEANING OF DOCUMENTARY EVIDENCE
Q: What is documentary evidence?
ANS: It is one which consists of writings or any material containing letters, words,
numbers, figure, symbols or other modes of written expressions offered as proof of
their contents (Sec. 2, Rule 130).

Q: May a private document be offered and admitted in evidence both as

documentary evidence and as object evidence? (2005 Bar)
ANS: Yes. A private document may be offered and admitted in evidence both as
documentary evidence and as object evidence depending on the purpose for which
the document is offered. If offered to prove its existence, condition or for any
purpose other than the contents of a document, the same is considered as an
object evidence. When the private document is offered as proof of its contents, the
same is considered as a documentary evidence (Sec. 2, Rule 130).

B.REQUISITES FOR ADMISSIBILITY

Q: What are the requisites for admissibility of documentary evidence?
ANS: They are the following:
a. The document must be relevant.
b. The evidence must be authenticated (if private and offered as authentic).
c. The document must be authenticated by a competent witness.
d. The document must be formally offered in evidence (Riano, p.183).

C.BEST EVIDENCE RULE

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Meaning of the Rule
Q: What is the meaning of the best evidence rule?
ANS: It has been said that the best evidence rule has a misleading name. Contrary
to what it implies, the rule does not require a party to present the best or most
probative evidence on an issue, where more than one means of proof is available.
Rather, the best evidence rule is a specific evidentiary requirement applicable to
documentary evidence. It might therefore be better referred to as the “original
writing rule” (Herrera, p. 167).

When Applicable
Q: When is the best evidence rule applicable?
ANS: When the subject of the inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself (Sec. 3, Rule 130).

Where the issue is only as to whether such a document was actually executed,
exists or on the circumstances relevant to or surrounding its execution, the best
evidence rule does not apply and testimonial evidence is admissible. Any other
substitutionary evidence is likewise admissible without need of accounting for the
original (Regalado, p.842).

Q: During the direct examination for an annulment case, counsel asked the
witness what happened after the wedding ceremony on June 18, 2010. The
witness answered that H and W signed a document and that same document
was also signed by the priest. The counsel subsequently asked what
document they signed. The witness answered that it was the marriage
contract. The opposing counsel raised an objection that the best evidence is
the marriage contract. Decide whether the objection should be sustained.
ANS: No. The best evidence rule does not apply. The inquiry involved the existence
and execution of the marriage contract. An inquiry into these matters does not bring
the best evidence rule into operation there being no inquiry as to the contents of the
document. The best evidence rule applies only when the subject of inquiry is the
contents of a document (Sec. 3, Rule 130).

Q: When may the best evidence rule be waived?

ANS: It is universally accepted that when secondary or incompetent evidence is
presented and accepted without any objection on the part of the other party, the
latter is bound thereby and the court is obliged to grant it the probative value it
deserves (United States v. Ong Shin, G.R. No. L-9784, October 21, 1914).

Q: When is the proper time for objection?

ANS: The proper time for making objection is when the formal offer is made and
not during the identification merely of the secondary evidence (Interpacific Transit v.
Aviles, G.R. No. 86062, June 6, 1990).

Meaning of Original
Q: When is a document considered original?
ANS: The following are considered as originals of a document:
a. One the contents of which are the subject of inquiry;
b. 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 (duplicate originals);

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 c. When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries
are equally regarded as originals (Sec. 4, Rule 130).

Q: When A loaned a sum of money to B, A typed a single copy of the

promissory note, which they both signed. A made two photocopies of the
promissory note, giving one copy to B and retaining the other copy. A
entrusted the typewritten copy to his counsel for safekeeping. The copy with
A's counsel was destroyed when the law office was burned. a) In an action to
collect on the promissory note, which is deemed to be the "original" copy for
the purpose of the "Best Evidence Rule"? b) Can the photocopies in the
hands of the parties be considered "duplicate original copies"? (1997 Bar)
ANS: The original is the one typed and signed by both parties and which was lost
when the office of the counsel of A was burned. The photocopies are not duplicate
originals. They cannot be deemed as having been made at the same time with the
original because they were not signed unlike the original (Answers to the Bar
Examination Questions by the UP Law Complex and Philippine Law Schools
Association 2006).

Q: X Co. filed a complaint against defendant Y for the collection of sum of

money of PhP40,000 representing the balance of defendant's unpaid
accounts for passage and freight on shipments of hogs, cattle and carabaos.
Plaintiff attached carbon originals of the ship's copy of the bills of lading.
However, the Commissioner rejected plaintiff's claims which were not
actually supported by the original of the bills of lading. Can the defendant be
held liable for the amount which represents the charges for the freight, even if
the original of the bills of lading were not submitted?
ANS: Yes. Where there are two or more originals, any of them may be used without
accounting for the others. The defendant can be held liable for the amount which
represents the charges for the freight, even if the original of the bills of lading were
not submitted, where the amounts were supported by carbon originals of the ship’s
copy of the bills of lading (Compania Maritima v. Limson, G.R. No. L-27134,
February 28, 1986).

Requisites for Introduction of Secondary Evidence

Q: State the exceptions to the best evidence rule.

ANS: No evidence shall be admissible other than the original document itself,
except in the following cases:
a. When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
b. 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;
c. 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
d. When the original is a public record in the custody of a public officer or is
recorded in a public office (Sec. 3, Rule 120).

NOTE: Secondary evidence is admissible when the original documents were

actually lost or destroyed. But prior to the introduction of such secondary evidence,
the proponent must establish the former existence of the document. The correct
order of proof is as follows: existence, execution, loss, contents. The order may be

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 changed if necessary in the discretion of the court (Lazatin v. Campos, G.R. No. L-
43955-56, July 30, 1979). The proponent must also account for the loss of all the
originals.

Q: State the requisites for the proper introduction of secondary evidence.

ANS: Secondary evidence may be admitted only by laying the basis for its
production which requires compliance with the following:
a. The offeror must prove the execution and existence of the original document;
b. The offeror must show the cause of its unavailability; and
c. The offeror must show that the unavailability was not due to his bad faith (Sec. 5,
Rule 130).

D.RULES ON ELECTRONIC EVIDENCE (A.M. No. 01-7-01-SC)

Scope, Coverage; Meaning of Electronic Evidence; Electronic Data Massage

Q: What is meant by electronic evidence?
ANS: An electronic document or electronic data message which is used or offered
in evidence.

Q: What is an electronic document?

ANS: It refers to information or the representation of information, data, figures,
symbols 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 (Sec. 1 [h], Rule 2).

Q: What is an Electronic Data Message?

ANS: It refers to information generated, sent, received or stored by electronic,
optical or similar means (Sec. 1 [g], Rule 2).

NOTE: The terms “electronic document” and “electronic data message” may be
used interchangeably within the Rule.

Probative Value of Electronic Documents or Evidentiary Weight; Method of

Proof
Q: What is the probative value of electronic documents?
ANS: Electronic documents have the following probative value:
a. Electronic evidence is considered as the functional equivalent of paper-
based documents. Whenever a rule of evidence refers to the term of
writing, document, record, instrument, memorandum or any other form of
writing, such term shall include an electronic document as defined in the
Rules (Sec. 1, Rule 3).
b. The electronic document shall be regarded as the equivalent of an original
document under the Best Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data accurately (Sec. 1, Rule
4).

Q: What are the factors to be considered in determining the weight of

electronic documents?
ANS: In assessing the evidentiary weight of an electronic document, the following
factors may be considered:
a. The reliability of the manner or method in which it was generated, stored or
communicated;
b. The reliability of the manner in which its originator was identified;

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c. The integrity of the information and communication system in which it is recorded
or stored;
d. The familiarity of the witness or the person who made the entry with the
communication and information system;
e. The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic
document was based;
f. Other factors which the court may consider as affecting the accuracy or integrity
of the electronic document or electronic data message (Sec. 1, Rule 7).

Q: What is the method of proof?

ANS: All matters relating to the admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts of direct personal
knowledge of the affiant or based on authentic records.
a. The affidavit must affirmatively show the competence of the affiant to testify on
the matters contained therein;
b. The affiant shall be made to affirm the contents of the affidavit in open court and
may be cross-examined as a matter of right by the adverse party (Rule 9).

Authentication of Electronic Documents and Electronic Signatures

Q: Who has the burden of proving the authenticity of electronic documents?
ANS: The person seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity (Sec. 1, Rule 5).

Q: How may the authenticity of electronic documents be proved?

ANS: Such authenticity must be proved by any of the following means:
a. By evidence that it had been digitally signed by the person purported to
have signed the same;
b. By evidence that other appropriate security procedures or devices as may
be authorized by the SC or by law for authentication of electronic
documents were applied to the document; or
c. By other evidence showing its integrity and reliability to the satisfaction of
the judge (Sec. 2, Rule 5).

Q: How is an electronic signature authenticated?

ANS: An electronic signature may be authenticated in any of the following manner:
a. By evidence that a method or process was utilized to establish a digital
signature and verify the same;
b. By any other means provided by law; or
c. By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature (Sec. 1, Rule 6).

Electronic Documents Vis-A-Vis the Hearsay Rule

Q: Is the rule on electronic evidence an exception to hearsay rule?
ANS: Yes. Under Rule 8 of the Rules on Electronic Evidence, a memorandum,
report, record or data compilation of acts, events, conditions, opinions, or
diagnoses, made by electronic (known as electronic business records), optical or
other similar means is an exception to the hearsay rule provided that the following
are shown by the testimony of the custodian or other qualified witnesses:
a. That it was made at or near the time of or from transmission or supply of
information;
b. That it was made by a person with knowledge thereof;
c. That it was kept in the regular course or conduct of business activity; and

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 d. That such was the regular practice (Sec. 1).

Q: How may the above presumption be overcome?

ANS: The presumption provided for in Section 1 of this Rule may be overcome by
evidence of the untrustworthiness of the source of information or the method or
circumstances of the preparation, transmission or storage thereof (Sec. 2, Rule 8).

Audio, Photographic, Video and Ephemeral Evidence

Q: When are audio, photographic, video and ephemeral evidence admissible?
ANS: Audio, Photographic, Video Evidence of events, acts or transactions shall be
admissible provided it:
a. Shall be shown, presented or displayed to the court; and
b. Shall be identified, explained or authenticated by the person who made the
recording or by some other person competent to testify on the accuracy thereof
(Sec. 1, Rule 11).

Q: What is ephemeral electronic communication?

ANS: Ephemeral electronic communication pertains to telephone conversations,
text messages, chat room sessions, streaming audio, streaming video and other
electronic forms of communication the evidence of which is not recorded or retained
(Sec. 1 [k], Rule 2).

Q: How may ephemeral electronic communications be proven?

ANS: Communications of this type shall be proven by the testimony of a person
who was a party to the same or has personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent evidence may be admitted (Sec.
2, Rule 11).

E.PAROL EVIDENCE RULE

Application of the Parol Evidence Rule

Q: What are the requisites for the applicability of parol evidence rule?
ANS: They are the following:
a. There is a valid contract;
b. The terms of agreement reduced to writing;
c. There is an issue as to the terms of agreement;
d. The dispute is between parties and their successors in interest (Sec. 9,
Rule 130).

The written agreement is already considered to contain all the things agreed
upon. Being a final agreement, any extraneous evidence or “parol” evidence
is inadmissible for any of the following purposes: (a) to modify; (b) to explain;
or (c) to add to the terms of the written agreement (Ibid.).

Q: What is the purpose of the parol evidence rule?

ANS: The parol evidence rule is designed to give stability to written agreements
and remove the temptation and possibility of perjury, which would be afforded if
parol evidence was admissible (Conde v. Court of Appeals, G.R. No. L-40242,
December 15, 1982).

When Parol Evidence can be Introduced

Q: When may parol evidence be introduced?

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ANS: Evidence to modify, explain or add to the terms of the written agreement can
be introduced by a party if he puts in issue in his pleadings:
a. An intrinsic ambiguity, mistake or imperfection in the written agreement;
b. The failure of the written agreement to express the true intent and agreement of
the parties thereto;
c. The validity of the written agreement; or
d. The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement (Sec. 9, Rule 130).

Distinctions between the Best Evidence Rule and Parol Evidence Rule
Q: State the distinctions between the parol evidence rule and the best
evidence rule.
ANS: The differences are the following:
a. The parol evidence rule presupposes that the original is available in court;
while the best evidence rule contemplates a situation where the original is
not available in court and/or there is a dispute as to whether said writing is
the original;
b. The parol evidence rule prohibits the varying of the terms of a written
agreement; whereas the best evidence rule prohibits the introduction of
substitutionary evidence in lieu of the original document regardless of
whether or not it varies the contents of the original;
c. The parol evidence rule can be invoked only when the controversy is
between the parties to the written agreement, their privies, or any party
directly affected thereby; the best evidence rule can be invoked by any
party to an action regardless of whether such party participated or not in
the writing involved;
d. With the exception of wills, parol evidence rule applies only to written
agreements; while best evidence rule applies to all kinds of writing.

Q: Is the Parol Evidence Rule applicable to wills?

ANS: Yes. By the explicit provision of Sec. 9 of Rule 130, the term “agreement”
includes wills.

Q: X was hired by Philoil Co. as General Manager for its oil exploration
venture in Palawan. The employment contract expressly provided that X was
to receive a salary of PhP10,000 a month plus representation and traveling
expenses of PhP5,000 a month. Philoil Co. failed to pay and so X filed an
action for specific performance of the employment contract. At the trial,
Philoil Co. attempted to prove, by oral testimony that the payment of salary to
X was subject to the condition that Philoil Co’s exploration in Palawan was
already successful. Is such oral testimony admissible? (1978 Bar)
ANS: No. Under the parol evidence rule, no evidence of the terms of a writing is
admissible other than the contents of the written agreement. Such content cannot
be modified, altered or explained by extrinsic or parol evidence like oral testimony.

Q: When is the parol evidence rule not applicable?

ANS: The parol evidence rule does not apply, and may not properly be invoked by
either party to the litigation against the other, where at least one of the parties to the
suit is not party or a privy of a party to the written instrument in question and does
not base a claim on the instrument or assert a right originating in the instrument or
the relation established thereby. Elsewise stated the rule is not applicable where
the controversy is between one of the parties to the document and third persons
(Lechugas v. Court of Appeals, G.R. Nos. L-39972 & L-40300, August 6, 1986).

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F.AUTHENTICATION AND PROOF OF DOCUMENTS

Meaning of Authentication
Q: What is authentication?
ANS: Authentication means the act or mode of giving authenticity to a statute,
record or other written instrument, or a certified copy thereof, so as to render it
legally admissible in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p. 262).

Public and Private Documents

Q: What are considered as public and private documents?
ANS: Public documents are:
a. The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
b. Documents acknowledged before a notary public except last wills and
testaments. Assumed to be included in this class of public documents are
those acknowledged before an officer, other than a notary public
authorized to administer oaths (Riano, p.232);
c. Public records, kept in the Philippines, of private records required by law to
be entered therein (Sec. 19, Rule 132).The public document does not refer
to the private document itself but the public record of that private document
(Riano, p.232).

All other writings are private documents (Sec. 19, Rule 132).

Q: What is the importance of knowing whether a document is public or

private?
ANS: Before the admission of a private document in evidence that is offered as
authentic, its due execution and authenticity must be proved. This requirement does
not apply to a public document which is admissible without further proof of its due
execution and genuineness (Riano, p.233).

Q: True or False. All notarial documents are public documents.

ANS: False. Only those which are “acknowledged” are public documents. Affidavits
are not considered as public documents. A jurat is a notarial act, but that would not
make the document a public document (Francisco, Evidence, 1996 ed., p. 500).

When a Private Writing Requires Authentication; Proof of a Private Writing

Q: When does a private writing require authentication?
ANS: When a private document is offered in evidence as authentic, there is a need
to prove its due execution and authenticity (Sec. 20, Rule 130).

Q: How may a private writing be proved?

ANS: The due execution and authenticity of a private document must be proved
either by:
a. Anyone who saw the document executed or written; or
b. Evidence of the genuineness of the signature or handwriting of the maker (Sec.
20, Rule 130).

When Evidence of Authenticity of a Private Writing is not Required (Ancient

Documents)
Q: When is evidence of authenticity of private writing not necessary?

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ANS: Evidence of authenticity of a private writing is not required:
a. When the genuineness and due execution of the document is admitted by
the adverse party;
b. When such genuineness and due execution are immaterial to the issue;
c. When the document is an ancient document (Sec. 21, Rule 132).

Q: What are the requisites in order for ancient document to be admissible?

ANS: The following are the requisites of an ancient document:
a. The private document is more than 30 years old;
b. It is produced from a custody in which it would naturally be found if
genuine;
c. It is unblemished by any alterations or circumstances of suspicions (Sec.
21, Rule 132).

How to Prove Genuineness of a Handwriting

Q: How may the genuineness of a handwriting be proved?
ANS: The genuineness of handwriting may be proved by:
a. By any witness who believes it to be the handwriting of such person
because he has seen the person write; or
b. By any witness who has seen writing purporting to be his upon which the
witness has acted or been charged, and thus has acquired knowledge of
the handwriting of such person; or
c. By a comparison made by the witness or the court, with writings admitted
or treated as genuine by the party, against whom the evidence is offered,
or proved to be genuine to the satisfaction of the judge (Sec. 22, Rule 132).

Public Documents as Evidence; Proof of Official Record

Q: What is the probative value of entries in public records?
ANS: Documents consisting of entries in public records made in the performance of
a duty by a public officer are prima facie evidence of the facts therein stated. All
other public documents are evidence, even against a third person, of the fact which
gave rise to their execution and of the date of the latter (Sec. 23, Rule 132).

Q: How is an official record proved?

ANS: The records of public documents, when admissible for any purpose may be
evidenced by:
a. An official publication; or
b. A copy thereof attested by the officer having the custody of the record or his
deputy.

If it is a foreign record, it may be evidenced by:

a. An official publication; or
b. A copy thereof attested by the officer having the custody of the record or his
deputy, accompanied by a certificate that such officer has the custody, which
may be made by the secretary of the embassy or legation, consul- general,
consul, vice-consul, or consular agent or foreign service officer and with a seal of
his office (Sec. 24, Rule 132).

Attestation of a Copy
Q: What must the attestation of copies of public records or documents state?
ANS: An attestation of a copy must state that it is a correct copy of the original or a
specific part thereof, as the case may be. Likewise, it must be under the official seal

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of the attesting officer, if there be any or if he be a clerk of court having a seal,
under the seal of such court (Sec. 25, Rule 132).

Q: How may foreign judgments be authenticated?

ANS: Foreign judgments may be authenticated in the following modes:
a. By an exemplification under the great sea;
b. By a copy proved to be a true copy;
c. By the certificate of an officer authorized by law, which certificate itself
must be properly authenticated (Herrera, p.296).

Public Record of a Private Document

Q: How may an authorized public record of a private writing be proved?
ANS: An authorized public record of a private document may be proved by the
original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has custody thereof (Sec. 27, Rule
132).

Proof of Lack of Record

Q: How is lack of record proved?
ANS: To prove that no official record or entry is found in the custody of an officer, it
must be evidenced by a written statement signed by an officer having the custody
of an official record or by his deputy that after diligent 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 (Sec. 28, Rule 132).

How a Judicial Record is Impeached

Q: How may a judicial record be impeached?
ANS: A judicial record may be impeached:
a. By evidence of want of jurisdiction in the court or judicial officer;
b. Collusion between the parties; or
c. Fraud in the party offering the record, in respect to the proceedings (Sec.
29, Rule 132).

Proof of Notarial Documents

Q: What is the probative value of notarial documents?
ANS: Notarial documents 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 (Sec. 30, Rule 132).

How to Explain Alterations in a Document

Q: How may an alteration in a writing be explained?
ANS: The party producing a document as genuine which has been altered and
appears to have been altered after its execution, in a part material to the question in
dispute, must account for the alteration. He must show that:
a. The alteration was made by another, without his concurrence; or
b. The alteration was made with the consent of the parties affected by it; or
c. The alteration was otherwise properly or innocently made; or
d. The alteration did not change the meaning or language of the instrument (Sec.31,
Rule 132).

Documentary Evidence in an Unofficial Language

Q: When are documents written in an unofficial language admissible in
evidence?

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 ANS: As a general rule, documents written in an unofficial language shall not be
admitted as evidence. The exception to this is when such document is
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 (Sec. 33, Rule 132).

V. TESTIMONIAL EVIDENCE
Q: What is the nature of testimonial evidence as a source of evidence?
ANS: Testimonial evidence may be oral or in writing, like a deposition (Albano,
Remedial Law Reviewer, 2010 ed., p. 1213).

Q: What is meant by the term “witness”?

ANS: A witness is one who, being present, personally sees or perceives a thing, a
beholder, spectator or eyewitness. One who testifies to what he has seen or heard
or otherwise observed (Black’s Law Dictionary, 5th ed., 1438).

A.QUALIFICATIONS OF A WITNESS
Q: Who may be witnesses?
ANS: Subject to certain exceptions provided for under the Rules of Court, all
persons who can perceive, and perceiving, and can make known their perception to
others, may be witnesses (Sec. 20, Rule 130).

Q: What are the qualifications of a witness?

ANS: A prospective witness must show that he has the following abilities:
a. To Observe – the testimonial quality of perception;
b. To Remember – the testimonial quality of memory;
c. To Relate – the testimonial quality of narration; and
d. To Recognize a duty to tell the truth – the testimonial quality of sincerity
(Herrera, p.278).

Q: May a witness be disqualified on the ground of political or religious belief,

or interest?
ANS: No. Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not be a ground for
disqualification (Sec. 20 [2], Rule 130).

Q: Facundo is a member of a religious group called Jehovah’s Witnesses and

an active member of Akbayan Partylist. He was previously convicted of
falsification of document. Facundo is one of the 5 witnesses to the will of Don
Juan. Is Facundo qualified to testify as witness in the probate of the will of
Don Juan?
ANS: No. Although Sec. 20, Rule 130 provides that religious or political belief,
interest in the outcome of the case, or conviction of a crime unless otherwise
provided by law, shall not be a ground for disqualification, Art. 821 of the Civil Code
provides that those who have been convicted of falsification of a document, perjury
or false testimony are disqualified from being witnesses to a will. As a
consequence, these persons may not testify as witnesses in the probate of a will
where the subject of testimony is the very fact of execution of the will in their
presence.

Q: Al was accused of raping Lourdes. Only Lourdes testified on how the

crime was perpetrated. On the other hand, the defense presented Al’s wife,
son and daughter to testify that Al was with them when the alleged crime took

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 place. The prosecution interposed a timely objection to the testimonies on
the ground of obvious bias due to the close relationship of the witnesses with
the accused. Rule on the objection. (1994 Bar)
ANS: The objection should be overruled. Interest in the outcome of a case which
also includes close relationship is not a ground to disqualify a witness (Answers to
the Bar Examination Questions by the UP Law Complex and Philippine Law
Schools Association 2006).

B.COMPETENCY VERSUS CREDIBILITY OF A WITNESS

Q: What are the distinctions between competency and credibility of a
witness?
ANS: The distinctions are the following:
a. Competency of a witness refers to his personal qualifications to testify. In
deciding the competence of a witness, the court will not inquire into the
trustworthiness of the witness; whereas credibility refers to the weight and
the trustworthiness or reliability of the testimony.
b. Competency is a matter of law or in this jurisdiction, also a matter of rule;
credibility of the witness has nothing to do with the law or the rules (Riano,
p. 249);
c. A witness may be competent, and yet give incredible testimony; he may be
incompetent, and yet his evidence, if received, is perfectly credible (Black’s
Law Dictionary, 5th ed., 257).

C.DISQUALIFICATION OF WITNESSES

By Reason of Mental Incapacity or Immaturity

Q: Who may not be a witness by reason of mental incapacity?
ANS: 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 may not be a witness (Sec. 21, Rule 130).

Q: Is a mental retardate disqualified from being a witness?

ANS: 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. Española, G.R. No. 119308, April 18,
1997).

Q: What is the presumption of sanity?

ANS: The law presumes that every person is of sound mind, in the absence of
proof to the contrary (Art. 800, NCC). However, there is no such presumption if the
witness is a lawful inmate of an asylum for the insane (Torres v. Lopez, G.R. No. L-
24569, February 26, 1926).

Q: X, a 32-year-old farm girl and a deaf-mute was allegedly raped by B. The

victim's sister, C, who has communicated with her since childhood by means
of sign language, was the sole available witness who could make known to
her the questions on direct and cross-examination and could articulate her
alleged answers for the record. X did not study in the school for deaf-mutes
and as there was no instructor in that school available as an interpreter the
trial court had no choice but to use C as the medium for communicating with
X. C is a public school teacher. Is C’s verbalization of the deaf-mute's
improvised sign language, alleging that B raped x, trustworthy?

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ANS: No. The story was not recounted by X directly in her own words but was
made known by means of sign language which was interpreted by her sister. The
trustworthiness of that interpretation is doubtful. The probability of error or
fabrication in such a case is very manifest. The court and the accused have no
means of checking the accuracy of the verbalization made by the interpreter who is
herself interested in sending the accused to prison (People of the Philippines v.
Hayag, G.R. No. L-38635, November 17, 1980).

Q: Who may not be a witness by reason of immaturity?

ANS: 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 cannot be witnesses (Sec. 21, Rule 130).

Q: What are the requirements of child’s competency as a witness?

ANS: The requirements of a child’s competency as a witness are the following:
a. Capacity of observation;
b. Capacity of recollection;
c. Capacity of communication (People of the Philippines v. Mendoza, G.R.
No. 113791, February 22, 1996).

Q: Is age a criterion in determining a child’s competency as a witness?

ANS: No. The capacity of children to testify as witnesses is to be determined, not
by the fact of age alone, but by the understanding and intelligence of the individual
child (3 Jones, 6th ed., pp.604-605).

By Reason of Marriage
Q: Can the spouses testify against each other? Is the rule absolute?
ANS: During their marriage, neither the husband nor the wife testify for or against
the other without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants (Sec. 22, Rule 130).

Q: What are the requisites of the rule on marital disqualification?

ANS: The requisites are the following:
a. That the spouse for or against whom the testimony is offered is a party to
the case;
b. That the spouses are legally married (valid until annulled);
c. That the testimony is offered during the existence of marriage;
d. That the case is not one of the exceptions provided in the rule (Herrera, p.
302).

Q: What is the reason for the rule prohibiting one spouse from testifying for
or against the other?
ANS: To obviate perjury for or against the other and to prevent domestic disunity
and unhappiness (United States v. Concepcion, G.R. No. L-10396, July 29, 1915).

Q: Vida and Romeo are legally married. Romeo was charged in court with the
crime of serious physical injuries committed against Selmo, son of Vida, and
stepson of Romeo. Vida witnessed the infliction of the injuries on Selmo by
Romeo. The public prosecutor called Vida to the witness stand and offered
her testimony as an eyewitness. Counsel for Romeo objected on the ground
of the marital disqualification rule under the Rules of Court.
a. Is the objection valid?

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b. Will your answer be the same if Vida’s testimony is offered in a civil case
for recovery of personal property filed by Selmo against Romeo? (2000 Bar)
ANS:
a. No. While neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, one exception is if the
testimony of the spouse is in a criminal case for a crime committed by one
against the other or the latter’s direct descendants or ascendants (Sec, 22,
Rule 130). The case falls under this exception because Selmo is the direct
descendant of the spouse Vida.
b. No. The marital disqualification rule applies this time. The exception
provided by the rules is in a civil case by one spouse against the other. The
case here involves a case by Selmo for the recovery of personal property
against Vida’s spouse, Romeo.

Q: Before the marriage of W to H, W witnessed the murder of X by H but she

never reported what she witnessed to the authorities. A year after the murder,
H and W married. Barely 6 months after the marriage, W became a battered
wife and to get even with H, she decided to report the murder to the police.
a. May W testify against H over the latter’s objection even if the murder took
place before the marriage?
b. Suppose a year after the marriage, the marriage is annulled. May W now
testify despite the objection of H?
ANS:
a. W cannot testify over the objection of H. The situation is covered by the
marital disqualification rule.
b. Yes. The prohibition no longer applies since the testimony is to be offered
after, not during the marriage (Riano, p.266-267).

By Reason of Death or Insanity of Adverse Party

Q: What are the requisites for the rule on disqualification by reason of death
or insanity of an adverse party?
ANS: The rule, also known as the Dead Man’s Statute, has the following requisites:
a. That the witness is a party or assignor of a party to a case or persons in
whose behalf a case is prosecuted;
b. That the action is against an executor or administrator or other
representative of a deceased person or a person of unsound mind;
c. That the subject-matter of the action is a claim or demand against the
estate of such deceased person or against a person of unsound mind;
d. That his testimony refers to any matter of fact which occurred before the
death of such deceased person or before such person became of unsound
mind (Herrera, p. 308-309).

Q: Maximo filed an action against Pedro, the administrator of the estate of

deceased Juan, for the recovery of a car which is part of the latter’s estate.
During the trial, Maximo presented witness Mariano who testified that he was
present when Maximo and Juan agreed that the latter would pay a rental of
PhP20,000 for the use of Maximo’s car for one month after which Juan should
immediately return the car to Maximo. Pedro objected to the admission of
Mariano’s testimony. If you were the judge, would you sustain Pedro’s
objection? (2001 Bar)
ANS: No, the testimony is admissible in evidence because witness Mariano, who
testified as to what Maximo and Juan, the deceased person agreed upon, is not
disqualified to testify on the agreement. Those disqualified are parties or assignors

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of parties to a case, or persons in whose behalf a case is prosecuted, against the
administrator or Juan’s estate, upon a claim or demand against his estate as to any
matter of fact occurring before Juan’s death (Answers to the Bar Examination
Questions by the UP Law Complex and Philippine Law Schools Association 2006).

By Reason of Privileged Communication

Q: What is meant by privilege?
ANS: A privilege is a rule of law that, to protect a particular relationship or interest,
either permits a witness to refrain from giving testimony he otherwise could be
compelled to give, or permits someone, usually one of the parties, to prevent the
witness from revealing certain information (Herrera, p. 315).

Q: Who may not testify by reason of privileged communication?

ANS: They are the following:
a. Husband and wife;
b. Attorney and client;
c. Physician and patient;
d. Priest and penitent;
e. Public officers (Sec. 24, Rule 130).

Husband and Wife

Q: What are the requisites of the rule on privileged marital communications?
ANS: It has the following requisites:
a. That the spouses must have been legally married;
b. That the privilege is claimed, with regards to communication, oral or
written, made during the marriage;
c. That said communication was made confidentially; and
d. That the action or proceeding where the privilege is claimed is not by one
spouse against the other (Sec. 24 [a], Rule 130).

Q: What is the reason for the rule on privileged communication between

husband and wife?
ANS: The reason for the rule is that society has a deeply rooted interest in the
preservation of peace of families and in the maintenance of the sacred institution of
marriage, and its strongest safeguard is to preserve with zealous care and violation
of those hallowed confidences inherent in, and inseparable from, the marital status
(Mercer v. State, 40 Fla. 216, 24 50154).

Attorney and Client

Q: What are the requisites for the rule on confidential communications
between attorney and client?
ANS: For the privilege to apply, the following requisites must be present:
a. There is an attorney and client relationship;
b. There must be communication by the client to the attorney, or advice given
thereon by the latter to the former; and
c. The communication or advice must have been made confidentially (Sec. 24
[b], Rule 130).

Q: Who are the persons disqualified under this rule?

ANS: The persons disqualified under this rule are: the attorney, the attorney’s
secretary, stenographer, and clerk (Ibid.).

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Q: What is the reason for the rule on confidential communications between
attorney and client?
ANS: It is a rule founded in the interest of the administration of justice and is
intended to enable a client to place unrestricted and unbounded confidence in his
attorney in matters affecting his rights and obligations without danger of having
disclosures forced from the attorney on the witness stand (58 Am. Jur. 259-260).

Q: Does the attorney-client privilege cover future crimes?

ANS: No. A distinction must be made between confidential communications relating
to past crimes already committed, and future crimes intended to be committed, by
the client. Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an attorney,
consulted as such, are privileged communications. Contrarily, communications
between attorney and client having to do with the client’s contemplated criminal
acts, or in aid or furtherance thereof, are not covered by the cloak of
privileges ordinarily existing in reference to communications between attorney and
client (People of the Philippines v. Sandiganbayan, G.R. No. 115439-41, July 16,
1997).

Q: Does the attorney-client privilege preclude inquiries into the fact that the
lawyer was consulted?
ANS: As a general rule, no. The traditional and still applicable rule is that an inquiry
into the fact of consultation or employment is not privileged. Even the identity of the
client is not privileged as well as that of the lawyer is not privileged. However, under
the so-called “Last Link Doctrine”, non-privileged information such as identity of the
client is protected if the revelation of such information would necessarily reveal
privileged information (Riano, p.283).

Physician and Patient

Q: What are the requisites in order that the physician-patient privilege may be
successfully claimed?
ANS: They are the following:
a. The privilege is claimed in a civil case;
b. The person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;
c. Such person acquired the information while he was attending to the patient
in his professional capacity;
d. The information was necessary to enable him to act in that capacity; and
e. The information was confidential, and, if disclosed, would blacken the
reputation of the patient (Krohn v. Court of Appeals, G.R. No. 108854 June
14, 1994).

Q: What is the reason for the physician-patient privilege?

ANS: The rule on the physician-patient privilege is intended to facilitate and make
safe full and confidential disclosure by the patient to the physician of all facts,
circumstances, and symptoms, untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled safely and efficaciously to
treat his patient (Will of Bruendi, 102 Wis., 47, 78 N.W. 169).

Priest and Penitent

Q: What are the requisites for the rule on privileged communication between
priest and penitent?

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 ANS: They are the following:
a. There must be a relationship of priest and penitent;
b. There must be a confession or advice given thereon by the priest in his
professional character in the course of discipline enjoined by the church to
which he belongs;
c. The communications made were confidential and penitential in character
(Sec.24 [d], Rule 130).

Q: What is the policy behind the privilege?

ANS: If the secrecy of confession is not maintained it would be an annulment of the
Confessional Institution (Herrera, p. 357).

Public Officers
Q: What are the requisites of the rule protecting communications made to
public officers in official confidence?
ANS: Before the privilege can be invoked, the following requisites must concur:
a. The holder of the privilege is the government, acting through a public
officer;
b. The communication was given to the public officer in confidence;
c. The communication was given during the term of office of the public officer
but the privilege may be invoked not only during the term of office of the
public officer but also after;
d. The public interest would suffer by the disclosure of the communication
(Sec. 24 [e], Rule 130).

Q: What is the reason for protecting communications made to a public officer

in official confidence?
ANS: The rule rests on general grounds of public policy. The right of the people to
information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be
provided by law (Sec. 7, Art. III, 1987 Constitution).

Q: What are the matters within the scope of the privilege?

ANS: They are:
a. Confidential official communication;
b. Communication to the government and its officials regarding violation of
law;
c. Communication to a prosecuting attorney regarding the commission of a
crime (Herrera, p. 358).

Parental and Filial Privilege Rule

Q: What is the parental and filial privilege rule?
ANS: The parental and filial privilege rule states that no person may be compelled
to testify against his parents, other direct ascendants, children or other direct
descendants. A person however, may testify against his parents or children
voluntarily but if he refuses to do so, the rule protects him from any compulsion.
The rule applies to both criminal and civil cases (Sec. 25, Rule 130).

D.EXAMINATION OF A WITNESS

Rights and Obligations of a Witness

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Q: What are the rights of a witness?
ANS: A witness taking the witness stand has the following rights:
a. To be protected from irrelevant, improper, or insulting questions, and from
harsh or insulting demeanor;
b. Not to be detained longer than the interests of justice require;
c. Not to be examined except only as to matters pertinent to the issue;
d. Right Against Self-Incrimination – Not to give an answer which will tend to
subject him to a penalty for an offense unless otherwise provided by law;
e. Right Against Self-Degradation – Not to give an answer which will tend to
degrade his reputation, unless it be to the very fact at issue or to a fact
from which the fact at issue would be presumed (Sec. 3, Rule 132;
Regalado, p.842);

Q: What are the obligations of a witness?

ANS: The obligations of a witness are the following:
a. A witness must answer questions although his answer may tend to
establish a claim against him;
b. A witness must answer to the fact of his previous final conviction for an
offense (Sec. 3, Rule 132);
c. A witness must testify under oath or affirmation (Sec. 1, Rule 132).

Order in the Examination of Individual Witnesses

Q: What is direct examination?
ANS: It is the examination-in-chief of a witness by the party presenting him on the
facts relevant to the issue (Sec. 5, Rule 132).

Q: What is cross examination?

ANS: Upon the termination of the direct examination, the witness may be cross-
examined by the adverse party as to any matter stated in the direct examination, or
connected therewith with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue (Sec. 6, Rule 132).

Q: What is re-direct examination?

ANS: This examination is conducted after the cross examination and the party who
called the witness on direct examination may re-examine the same witness to
explain or supplement his answers given during the cross-examination. The
counsel may elicit testimony to correct or repel any wrong impression or inferences
that may have been created in the cross-examination. Questions on matters not
dealt with during the cross-examination may be allowed by the court in its discretion
(Sec. 7, Rule 132).

Q: What is re-cross examination?

ANS: Upon the conclusion of the re-direct examination, the adverse party may re-
cross examine the witness on matters stated in his re-direct examination, and also
on such other matters as may be allowed by the court in its discretion (Sec. 8, Rule
132).

Q: What is recalling of witness?

ANS: As a general rule, after the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave of court. This is so
because a witness cannot be detained longer than the interest of justice requires.

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An exception to this rule is when the recall has been expressly reserved with the
permission of the court (Sec. 9, Rule 132).

Leading and Misleading Questions

Q: What are leading questions?
ANS: One which suggests to the witness the answer which the examining party
desires. It is generally not allowed, except in the following instances:
a. On cross-examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness
who is ignorant, or a child of tender years, or is of feeble mind or a deaf-mute;
d. Unwilling or hostile witness;
e. Witness is an adverse party or an officer, director, or managing agent of a public
or private corporation or of a partnership or association which is an adverse party
(Sec. 10, Rule 132).

Q: What are misleading questions?

ANS: One which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated (Sec. 10, Rule 132). It is not allowed
Sec. 10, Rule 132 in any type of examination (Riano, p. 322).

Methods of Impeachment of Adverse Party’s Witness

Q: What are the methods of impeaching the adverse party’s witness?
ANS: A witness may be impeached through the following modes:
a. By contradictory evidence;
b. By evidence that the general reputation for truth, honesty, or integrity of the
witness is bad; or
c. By prior inconsistent statements (Sec. 11, Rule 132).

NOTE: Other than the foregoing, the following are methods which may be
used to impeach the adverse party’s witness:
i. By involving him during cross examination in contradiction;
ii. By showing the impossibility or improbability of his testimony;
iii. By proving action or conduct of the witness inconsistent with his testimony;
iv. By showing bias, interest or hostile feeling against the adverse party
(Herrera, p. 209);
v. By showing that there is a defect in the observation, memory or narration
by the witness (Herrera, p. 219).

How the Witness is Impeached by Evidence of Inconsistent Statements

(Laying the Predicate)
Q: How is the witness impeached by evidence of inconsistent statements?
ANS: Impeaching a witness by prior inconsistent statements requires the “laying of
the predicate”, the elements of which are as follows:
a. The alleged statements must be related to the witness including the
circumstances of the times, places and persons present;
b. If the statements are in writing, they must be shown to the witness;
c. He must be asked whether he made such statements and also to explain them if
he admits making those statements (Sec. 13, Rule 132).

NOTE: Non-compliance with the foundational elements for this mode will be a
ground for an objection based on “improper impeachment.” Over a timely objection,

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 extrinsic evidence of a prior inconsistent statement without the required foundation
is not admissible (Riano, p. 327).

Evidence of Good Character of Witness

Q: When is evidence of the good character of a witness admissible?
ANS: The evidence of the good character of a witness is admissible only until such
character has been impeached (Sec. 14, Rule 132). This arises from the
presumption that the witness is truthful and of good character, hence the necessity
of initially showing such traits is unnecessary (Riano, p. 331).

Judicial Affidavit Rule (A.M. No. 12-8-8-SC)

Q: How does the Judicial Affidavit Rule affect the rules on examination of
witness?
ANS: Under the Judicial Affidavit Rule, judicial affidavits of witnesses shall take the
place of their direct testimonies (Sec. 2). However, 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
on re-direct. The court shall take active part in examining the witness to determine
his credibility as well as the truth of his testimony and to elicit the answers that it
needs for resolving the issues (Sec. 7).

NOTE: For a detailed explanation of the Judicial Affidavit Rule, please refer to
Special Laws.

E.ADMISSIONS AND CONFESSIONS

Res Inter Alios Acta Rule

Q: What is the res inter alios acta rule?
ANS: The principle of res inter alios acta alteri noncore non debet means that
“things done between strangers ought not to injure those who are not parties to
them” (Black’s Law Dictionary, 5th ed., 1178).

Q: What is the rationale behind the res inter alios acta rule?
ANS: The reason for this rule is that a man’s own acts are binding upon himself,
and are evidence against him. So are his conduct and declarations. Yet, it would
not only be rightly inconvenient, but also manifestly unjust, that a man should be
bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as
evidence against him (People of the Philippines v. Tena, G.R. No. 100909, October
21, 1992).

Q: X and Y were charged with murder. Upon application of the prosecution, Y

was discharged from the Information to be utilized as a state witness. The
prosecutor presented Y as witness but forgot to state the purpose of his
testimony much less offer it in evidence. Y testified that he and X conspired
to kill the victim but it was X who actually shot the victim. The testimony of Y
was the only material evidence establishing the guilt of X. Y was thoroughly
cross-examined by the defense counsel. After the prosecution rested its
case, the defense filed a motion for demurrer to evidence based on the
ground that Y’s testimony is not admissible against X pursuant to the rule on
“res inter alios acta”. Is the contention correct? (2005 Bar)

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ANS: No. The res inter alios acta rule applies only to extrajudicial declarations and
not to statements made in open court. Since Y testified as a witness and was cross-
examined, the rule does not apply.

Q: What are the two branches of the res inter alios acta rule?
ANS: They are the following:
a. The rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another (Sec. 28, Rule 130).
b. The rule that 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
(Sec. 34, Rule 132).

Admission by a Party
Q: What is an admission?
ANS: An admission is an act, declaration or omission of a party as to a relevant fact
which may be given in evidence against him (Sec. 26, Rule 130). It is a voluntary
acknowledgment made by a party of the existence of the truth of certain facts which
are inconsistent with his claims in an action (Black’s Law Dictionary, 5th Ed., 44).

Q: Distinguish admission from confession.

ANS: The distinctions between a confession and admission are the following:
a. In confession, there is an acknowledgment of guilt; in an admission, there
is merely a statement of fact not directly involving an acknowledgment of
guilt or of the criminal intent to commit the offense with which one is
charged (Ladiana v. People of the Philippines, G.R. No. 144293, December
4, 2002);
b. An admission in a general sense includes confessions, the former being a
broader term because accordingly, a confession is also an admission…by
the accused of the fact charged against him or of some fact essential to the
charge” (4 Wigmore, Sec. 1050). A confession is a specific type of
admission which refers only to an acknowledgment of guilt;
c. An admission may be implied like an admission by silence; a confession
cannot be implied;
d. Applied to a criminal case, a confession is an acknowledgment in express
terms, by a party in a criminal case, of his guilty 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 (Herrera, p. 114-115).

Admission by a Third Party

Q: May the rights of a party be prejudiced by the act, declaration or omission
of another?
ANS: As a general rule, no. However, the Rules of Court provide for the following
exceptions:
a. An admission by a co-partner or agent (Sec. 29, Rule 130);
b. Admissions by a co-conspirator (Sec. 30, Rule 130); and
c. Admission by privies (Sec. 31, Rule 130).

Admission by a Co-Partner or Agent

Q: What are the requisites of an admission by a co-partner or agent?
ANS: For this admission to apply, the following requisites must concur:
a. The act or declaration of a partner or agent of the party must be within the
scope of his authority;

238
 b. It must have been made or done during the existence of the partnership or
agency (while the person making the declaration was still a partner or an
agent); and
c. The existence of the partnership or agency is shown by evidence other
than such act or declaration (Sec. 29, Rule 130).

NOTE: The same rule applies to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the party (Ibid.).

Admission by a Conspirator
Q: What are the requisites of admission by a co-conspirator?
ANS: For the admission of a conspirator to be received against his co-conspirators,
it is necessary that:
a. The declaration or act must be made or done during the existence of the
conspiracy;
b. The declaration or act must relate to the conspiracy itself; and
c. The conspiracy must be shown by evidence other than the declaration or act
(Sec. 30, Rule 130).

Admission by Privies
Q: What are the requisites of admission by privies?
ANS: The requisites are:
a. There must be an act, declaration or an omission by a predecessor-in-interest;
b. The act, declaration or omission of the predecessor must have occurred while he
was holding the title to the property; and
c. The act, declaration or omission must be in relation to the property (Sec. 31, Rule
130).

Admission by Silence
Q: What are the requisites of admission by silence?
ANS: Before the silence of a party may be taken as an admission of what is said, it
must appear that:
a. He heard and understood the statement;
b. He was at liberty to interpose a denial;
c. The statement was in respect to some matter affecting his rights or in which he
was then interested, and calling, naturally, for an answer;
d. The facts were within his knowledge; and
e. The fact admitted or the inference to be drawn from his silence would be material
to the issue (People of the Philippines v. Paragsa, G.R. No. L-44060, July 20,
1978).

NOTE: It must be noted, however, that the accused’s right to remain silent prevails
over the rule allowing silence of a person is admissible (Regalado, p.763).

Confessions
Q: What is a confession?
ANS: It is a categorical acknowledgment of guilt made by an accused of the offense
charged or of any offense necessarily included therein, without any exculpatory
statement or explanation (Sec. 33; Regalado, p. 764). It may be given in evidence
against him (Sec. 33, Rule 130).

Q: Distinguish judicial from extrajudicial confession.

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ANS: The distinctions between a judicial and extrajudicial confession are the
following:
a. Judicial confessions are those made in conformity to law before a committing
magistrate or in court in the course of legal proceedings. Extrajudicial
confessions are those which are made by a party elsewhere than before a
magistrate or in court (16 C.J., Sec. 1465, p. 716);
b. A judicial confession may sustain a conviction, an extrajudicial confession is not
sufficient for conviction, unless corroborated by evidence of corpus delicti (Sec. 3,
Rule 133). A judicial confession will support conviction without proof of corpus
delicti independent of the judicial confession (State v. Dena, 28 N. Mexico, 479,
214, Pac. 583).

Q: State the requisites for an extrajudicial confession to be admissible.

ANS: In order that an admission of guilt of an accused during custodial
investigation be admitted in evidence, the following requisites must be present:
a. The confession must involve an express and categorical acknowledgment of
guilt;
b. The facts admitted must be constitutive of a criminal offense;
c. The confession must have been given voluntarily;
d. The confession must have been intelligently made by the accused while realizing
the importance or legal significance of his act (People of the Philippines v.
Matignas, G.R. No. 126146, March 12, 2002).

Q: The mutilated cadaver of a woman was discovered near a creek. Due to

witnesses attesting that he was the last person seen with the woman when
she was still alive, Carlito was arrested within 5 hours after the discovery of
the cadaver and brought to the police station. The crime laboratory
determined that the woman had raped. While in police custody, Carlito broke
down in the presence of an assisting counsel and orally confessed to the
investigator that he had raped and killed the woman, detailing the acts he had
performed up to his dumping of the body near the creek. He was genuinely
remorseful. During the trial, the state presented the investigator to testify on
the oral confession of Carlito. Is the oral confession admissible as evidence
of guilt? (2008 Bar)
ANS: No. The confession is in the nature of an extrajudicial confession before an
investigator while under custodial investigation. Under R.A. No. 7438, any
extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person the presence of his
counsel, or, in the latter’s absence, upon a valid waiver; otherwise, such
extrajudicial confession shall be inadmissible as evidence any proceeding (Sec. 2;
Riano, p. 123).

Q: Every statement made to the police by a person involved in some crime

must be made in the presence of counsel.
ANS: False. If not made “under custodial investigation” or “under investigation for
the commission of an offense” the statement is not protected. Thus, in one case,
where a person went to a police precinct and before any sort of investigation could
be initiated, declared that he was giving himself up for the killing of an old woman
because she was threatening to kill him by barang or witchcraft, this court ruled that
such statement was admissible, compliance with the constitutional procedure on
custodial interrogation not being exigible under circumstances (People of the
Philippines v. Taylaran, G.R. No. L-49149, October 23, 1981).

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 Similar Acts as Evidence
Q: May evidence of similar acts or previous conduct be admissible as
evidence?
ANS: As a general rule, no. 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 (Sec. 34, Rule 130). It is a well-settled rule that evidence is not
admissible which shows or tends to show that the accused in a criminal case has
committed a crime wholly independent from the offense for which he is on trial. A
man may be a notorious criminal, and may have committed many crimes and still
be innocent of the crime charged in the case on trial (People of the Philippines v.
Galo, G.R. Nos. 70306-07, July 30, 1986). However, it may be received to prove
(SKIPS-SCHUL):
a. Specific intent;
b. Knowledge;
c. Identity;
d. Plan;
e. System;
f. Scheme;
g. Custom;
h. Habit;
i. Usage; and the like (Sec. 34, Rule 130).

F.HEARSAY RULE

Meaning of Hearsay
Q: What is hearsay?
ANS: It is an oral testimony or documentary evidence as to somebody’s words or
actions outside of court, where they are offered to prove the truth of the very
matters they assert (V. Wigmore, Evidence; Chadbourn Rev., Secs. 1360-1365).
Evidence is called hearsay when its probative force depends, in whole or in part, on
the competency and credibility of some persons other than the witness by whom it
is sought to produce it (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001).

Q: State the elements of hearsay.

ANS: The elements of hearsay are:
a. An assertion or conduct amounting to an assertion;
b. Made or done by someone other than a testifying witness on the stand; in
other words, by an out-of-court declarant or act;
c. Which is offered to prove the truth of the matter asserted at the trial in
which it is offered (Herrera, p. 569)

Q: X was charged with robbery. On the strength of a warrant of arrest issued

by the court, X was arrested by police operatives. They seized from his
person a handgun. A charge for illegal possession of firearm was also filed
against him. In a press conference called by the police, X admitted that he
had robbed the victim of jewelry valued at PhP500,000.00. The robbery and
illegal possession of firearm cases were tried jointly. The prosecution
presented in evidence a newspaper clipping of the report to the reporter who
was present during the press conference stating that X admitted the robbery.
Is the newspaper clipping admissible in evidence against X? (2003 Bar)
ANS: Yes. The newspaper clipping is admissible in evidence against X as non-
hearsay if offered for the purpose of showing that the statement of X was made to a
reporter regardless of the truth or falsity of the statement. The admissibility depends

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now on whether the fact that the statement was made is relevant to the case. If it is
relevant, it is admissible as an independent relevant statement (a non-hearsay
declaration). It would be hearsay if offered to prove the truth that X as the robber
(Riano, p. 361).

Reason for Exclusion of Hearsay Evidence

Q: What are the reasons for exclusion of hearsay evidence?
ANS: Underlying the rule against hearsay are serious concerns about the worth
(trustworthiness, reliability) of hearsay evidence. This is because such evidence
was not given under oath or solemn affirmation and was not subject to cross-
examination by opposing counsel to test the perception, memory, veracity and
articulateness of the out-of-court declarant or actor upon whose reliability on which
the worth of the out-of-court testimony depends (Sec. 216 [2], Gilbert, Law
Summaries on Evidence).

Exceptions to the Hearsay Rule

Q: What are the exceptions to the Hearsay Rule?
ANS: The following are exceptions to the Hearsay Rule:
a. Dying declarations (Sec. 37, Rule 130);
b. Declaration against interest (Sec. 38, Rule 130);
c. Act or declaration about pedigree (Sec. 39, Rule 130);
d. Family reputation or tradition regarding pedigree (Sec. 40, Rule 130);
e. Common reputation (Sec. 41, Rule 130);
f. Part of the res gestae (Sec. 42, Rule 130);
g. Entries in the course of business (Sec. 43, Rule 130);
h. Entries in official records (Sec. 44, Rule 130);
i. Commercial lists and the like (Sec. 45, Rule 130);
j. Learned treatises (Sec. 46, Rule 130);
k. Testimony or deposition at a former trial (Sec. 47, Rule 130).

Dying Declarations
Q: What are dying declarations?
ANS: Dying declarations are the ante mortem statements made by a person after
the mortal wound has been inflicted under the belief that death is certain, stating the
facts concerning the cause of and the circumstances surrounding the attack. It
applies to any case where death of the declarant is the subject of the inquiry
(Herrera, p. 596).

Q: What are the requisites in order for a dying declaration to be admissible?

ANS: For a dying declaration to be admissible, the following requirements must
concur:
a. That the declaration is one made by a dying person;
b. That the declaration was made by said dying person under a consciousness of
his imminent death;
c. That the declaration refers to the cause and circumstances surrounding the death
of the declarant and not of anyone else;
d. That the declaration is offered in a case where the declarant’s death is the
subject of inquiry;
e. The declarant is competent as a witness had he survived (Geraldo v. People of
the Philippines, G.R. No. 173608, November 20, 2008);
f. The declarant should have died (Riano, p. 370);
g. The declaration must be complete. A full expression of all the declarant intended
to say (Marturillas v. People, G.R. No. 163217, April 18, 2006).

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Q: The accused was charged with robbery and homicide. The victim suffered
several stab wounds. It appears that 11 hours after the crime, while the victim
was being brought to the hospital in a jeep, with his brother and a policeman
as companions, the victim was asked certain questions which he answered,
pointing to the accused as his assailant. His answers were put in writing, but
since he was a in a critical condition, his brother and the policeman signed
the statement. Is the statement admissible as a dying declaration? (1999 Bar)
ANS: Yes. The statement is admissible as a dying declaration if the victim
subsequently died and his answers were made under the consciousness of
impending death (Sec. 37 of Rule 130). The fact that he did not sign the statement
point to the accused as his assailant, because he was in critical condition, does not
affect its admissibility as a dying declaration. A dying declaration need not be in
writing (People of the Philippines v. Viovicente, G.R. No. 118707, February 2, 1998;
Answers to the Bar Examination Questions by the UP Law Complex and Philippine
Law Schools Association 2006).

Q: X was stabbed and brought to the hospital. When asked by the police
before his dying declaration was taken whether he believed he was going to
die of his wounds, his answer was: “God willing, I will survive.” The
admission of the dying declaration on trial was objected to on the ground that
the declaration was not made under the consciousness of an impending
death. Should the objection be sustained?
ANS: Yes. If there is no showing in the records that the victim was under a
consciousness of an impending death at the time of his declaration that the
accused was one who shot him, the same is not admissible as a dying declaration,
but because it was made shortly after a startling occurrence and under the
influence thereof, it is nonetheless admissible as part of the res gestae (People of
the Philippines v. Espina, G.R. Nos. 132325-26, July 26, 2001).

Declaration against Interest

Q: What are the requisites in order for declaration against interest to be
admissible?
ANS: A statement may be admissible when it complies with the following requisites:
a. That the declarant is dead or unable to testify;
b. That it relates to a fact against the interest of the declarant;
c. That at the time he made said declaration the declarant was aware that the
same was contrary to his aforesaid interest; and
d. That the declarant had no motive to falsify and believed such declaration to
be true (People of the Philippines v. Bernal, G.R. No. 113685, June 19,
1997).

Q: Distinguish declaration against interest from admission.

ANS: A declaration against interest is to be distinguished from an admission in that:
a. An admission need not be against an interest of the declarant;
b. An admission may be used even if the declarant is alive and available as a
witness; and
c. An admission is admissible only against the declarant or his privies but not
against third persons (Herrera, p. 630).

Act or Declaration about Pedigree

Q: What are the requisites in order for act or declaration about pedigree to be
admissible?

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ANS: A declaration about pedigree is subject to the following conditions:
a. That the declarant is dead or unable to testify;
b. That the declarant be related to the person whose pedigree is the subject
of inquiry;
c. That such relationship be shown by evidence other than the declaration;
and
d. That the declaration was made ante litem motam, that is, not only before
the commencement of the suit involving the subject matter of the
declaration, but before any controversy has arisen thereon (Tison v. Court
of Appeals, G.R. No. 121027, July 31, 1997).

Q: Is the rule that the relationship must be shown by independent evidence

absolute?
ANS: No. The general rule is that where the party claiming seeks recovery against
a relative common to both claimant and declarant, but not from the declarant
himself or the declarant's estate, the relationship of the declarant to the common
relative may not be proved by the declaration itself. There must be some
independent proof of this fact. As an exception, the requirement that there be other
proof than the declarations of the declarant as to the relationship, does not apply
where it is sought to reach the estate of the declarant himself and not merely to
establish a right through his declarations to the property of some other member of
the family (Tison v. Court of Appeals, G.R. No. 121027, July 31, 1997).

Family Reputation or Tradition Regarding Pedigree

Q: What are the requisites in order for family reputation or tradition regarding
pedigree to be admissible?
ANS: The requisites for this exception are:
a. There is controversy in respect to the pedigree of a member/s of a family;
b. The reputation or tradition is one existing in the family of the person whose
pedigree is in question;
c. The reputation or tradition was formed before the controversy (ante litem
motam);
d. The witness testifying to the reputation of a person is a member of the
family (Sec. 40, Rule 130).

Q: Is evidence on pedigree limited to oral testimony in court?

ANS: No. It applies also to documentary evidence. Under the present rule, family
reputation or tradition may also be established through entries in:
a. Family bible;
b. Family books or charts;
c. Engravings on rings;
d. Family portraits and the like (Sec. 40, Rule 130).

Common Reputation
Q: What is meant by common reputation?
ANS: Common reputation is the prevailing belief in the community as to the
existence of a certain fact or aggregation of facts (Black’s Law Dictionary, 5th
Edition, p. 250).

Q: What are the requisites in order for common reputation to be admissible?

ANS: The requisites for this exception are:
a. The common reputation involves facts of public or general interest more
than 30 years old;

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 b. That the reputation is ancient;
c. The reputation must come from persons in a position to know such
matters;
d. The common reputation existed ante litem motam, i.e., “previous to the
controversy” (Herrera, 671).

Q: Aside from facts of public or general interest more than 30 years old, what
other matters may be proved by common reputation?
ANS: The following may be proved by common reputation:
a. Matters respecting marriage
b. Matters respecting moral character (Sec. 41, Rule 130).

Part of the Res Gestae

Q: What is res gestae?
ANS: Res Gestae literally means “things done”. It refers to those exclamations and
statements made by either the participants, victims, or spectators to a crime
immediately before, during, or immediately after the commission of the crime, when
the circumstances are such that the statements were made as spontaneous
reaction or utterance inspired by the excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false statement (People
of the Philippines v. Sanchez, G.R. No. 74740, August 28, 1992).

Q: What are the two types of res gestae?

ANS: The two types of res gestae are:
a. Spontaneous statements; and
b. Contemporaneous statements or verbal acts (Sec. 42, Rule 130).

Q: What are spontaneous statements?

ANS: Spontaneous statements are statements or exclamation made immediately
after some exciting occasion by a participant or spectator and asserting the
circumstances of that occasion as it is observed (Keefe v. State of Arizona, 72, p.
425). To determine whether or not the statement is spontaneous, the following facts
may be considered:
a. The time that lapsed between the occurrence of the act or transaction and the
making of the statement;
b. The place where the statement is made;
c. The condition of the declarant when the utterance is given;
d. The presence or absence of intervening events between the occurrence and the
statement relative thereto; and
e. The nature and the circumstances of the statement itself (People of the
Philippines v. Dianos, G.R. No. 119311, October 7, 1998).

Q: State the requisites for admissibility of evidence as part of res gestae.

ANS: They are the following:
a. That the principal act, the res gestae, be a startling occurrence;
b. The statements were made before the declarant had the time to contrive or
devise a falsehood; and
c. That the statements must concern the occurrence in question and its
immediate attending circumstances (People of the Philippines v. Sanchez,
supra).

Q: What are verbal acts?

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ANS: Verbal acts are statements accompanying an equivocal act material to the
issue, and giving it a legal significance (Sec. 42, Rule 130).

Q: State the requisites for the admissibility of verbal acts.

ANS: The requisites for the admissibility of verbal acts are:
a. The principal act to be characterized must be equivocal;
b. Equivocal act must be relevant to the issue;
c. Verbal acts must be contemporaneous with the equivocal act;
d. Verbal acts must give legal significance to the equivocal act (Talidano v. Falcom
Maritime & Allied Services, Inc., G.R. No. 172031, July 14, 2008).

Entries in the Course of Business (Business Records Rule)

Q: What are the requisites in order for entries in the course of business to be
admissible?
ANS: In order that an entry may be admissible as evidence, the following requisites
must be present:
a. The entries must have been made at or near the time of the transaction to which
they relate;
b. That the entry was made in the regular course of business or duty;
c. The entrant must have been in a position to know the facts stated in the entries;
d. That the entrant made the entry in his professional capacity or in the performance
of a duty;
e. The entrant must be deceased or unable to testify (Northwest Airlines, Inc. v.
Chiong, G.R. No. 155550, January 31, 2008).

Entries in Official Records

Q: What are the requisites for entries in official records to be admissible?
ANS: The requisites for admission of entries in official records are:
a. That it was made by a public officer or by another person specially
enjoined by law to do so; and
b. That it was made by a public officer in the performance of his duty, or by
another person in the performance of a duty specially enjoined by law; and
c. The public officer or the other person had sufficient knowledge of the facts
by him stated which must have been acquired by him personally or through
official information (Barcelon Roxas Security Inc. v. CIR, G.R. No. 157064,
August 7, 2006).

Commercial Lists and the Like

Q: Are commercial lists admissible in evidence?
ANS: Yes. Commercial lists are admissible as tending to prove the truth of any
relevant matter so stated therein (Sec. 45, Rule 130).

Q: What are the requisites in order for commercial lists to be admissible?

ANS: For this exception to apply, the following must be present:
a. Statements of matters of interest to persons engaged in an occupation;
b. The statements must be contained in a list, register, periodical or other
published compilation;
c. That compilation is published for use by persons engaged in that
occupation; and
d. It is generally used and relied upon by them (Ibid).

Learned Treatise
Q: When is a learned treatise admissible?

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 ANS: A published treatise, periodical or pamphlet on a subject of law, history,
science or art may be admissible as tending to prove the truth of a matter stated
therein if:
a. The court takes judicial notice of it; or
b. 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 (Sec. 46, Rule 130).

Testimony or Deposition at a Former Trial

Q: What are the requisites in order for testimony or deposition at a former
trial to be admissible?
ANS: To be admissible under this rule, the following requisites must be present:
a. The testimony was given in a former case or proceeding, judicial or
administrative;
b. The former case or proceeding was between the same parties;
c. The former testimony relates to the same subject matter or issues;
d. The adverse party had an opportunity to cross-examine the witness; and
e. The witness is dead or is unable to testify in the subsequent trial (Manliclic
v. Calaunan, G.R. No. 150157, January 25, 2007).

G.OPINION RULE
Q: May the opinion of an ordinary witness be received as evidence?
ANS: As a general rule, it is not admissible. Witnesses must give the facts and not
their inferences, conclusions or opinions, except for the following:
a. Opinion of an Expert Witness – The opinion of a witness requiring special
knowledge, skill, experience or training which he is shown to possess may be
received in evidence (Sec. 49, Rule 130).
b. Opinion of an Ordinary Witness – The opinion of an ordinary witness may be
received in evidence regarding:
i. The identity of a person about whom he has adequate knowledge;
ii. A handwriting with which he has sufficient familiarity;
iii. The mental sanity of a person with whom he is sufficiently acquainted;
iv. The witness’ impression of the emotion, behavior, condition or appearance of a
person (testimony of collective facts) (Sec. 50, Rule 130).

H.CHARACTER EVIDENCE
Q: Distinguish character from reputation.
ANS: The distinctions are the following:
a. Character is the aggregate of the moral qualities which belong to and
distinguish an individual person; the general result of one’s distinguishing
attributes. It refers to what a man is and depends on the attributes he
possesses. On the other hand, reputation depends on attributes which
others believe one to possess;
b. Character signifies reality while reputation signifies what is accepted to be
reality at present;
c. Character is what the person really is; while reputation is what he is
supposed to be in accordance with what people say he is, and is
dependent on how people perceive a person to be (Riano, p. 335).

Q: Is character evidence admissible?

ANS: Character evidence, as a general rule, is not admissible in evidence. This is
so because the evidence of a person’s character does not prove that such person

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 acted in conformity with such character or trait in a particular occasion. The
following, however, are the exceptions:
a. In Criminal Cases:
i. The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged,
ii. The prosecution may not prove the bad moral character of the accused unless
in rebuttal when the latter opens the issue by introducing evidence of his good
moral character,
iii. As to the offended party, his good or bad moral character may be proved as
long as it tends to establish the probability or improbability of the offense
charged.

Exceptions to the exception:

i. Proof of bad character of the victim in a murder case is not admissible if the
crime was committed through treachery and premeditation (People of the
Philippines v. Lee, G.R. No. 139070, May 29, 2002).
ii. Rape-shield rule – In prosecutions for rape, evidence of complainant's past
sexual conduct, opinion thereof or of his/her reputation shall not be admitted
unless, and only to the extent that the court finds, that such evidence is
material and relevant to the case (Sec. 6, R.A. No. 8505).

b. In Civil Cases – Evidence of the moral character of a party in a civil case is

admissible only when pertinent to the issue of character involved in the case.
c. As To Witnesses – The bad moral character of a witness may be proved by
either party, but evidence of the good moral character of a witness is not
admissible unless such character has been impeached (Sec. 51, Rule 130).

I.RULE ON THE EXAMINATION OF A CHILD WITNESS (A.M. No. 004-07-SC)

Applicability of the Rule

Q: What is the scope of the rule?
ANS: It shall apply in all criminal proceedings and non-criminal proceedings
involving child witnesses. Unless otherwise provided, this Rule shall govern the
examination of child witnesses who are:
i. Victims of crime;
ii. Accused of a crime; and
iii. Witnesses to a case, criminal, civil or other proceedings (Sec. 1).

Meaning of Child Witness

Q: Who is a child witness?
ANS: A child witness is any person who at the time of giving testimony is below 18
years. In child abuse cases, a child includes one over 18 years but is found by the
court as unable to fully take care of himself or protect himself from abuse, neglect,
cruelty, exploitation, or discrimination because of a physical or mental disability or
condition (Sec. 4 [a]).

Competency of Child Witness

Q: Is a child competent to be a witness?
ANS: Every child is presumed qualified to be a witness. However, the court shall
conduct a “competency examination” of a child, motu proprio or on motion of a
party, when it finds that substantial doubt exists regarding the ability of the child to
perceive, remember, communicate, distinguish truth from falsehood, or appreciate
the duty to tell the truth in court (Sec. 6).

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Examination of Child Witness
Q: What are the rules on the examination of a child witness?
ANS: As a general rule, the examination of a child witness presented in a hearing
or any proceeding shall be done in open court. Unless the witness is incapacitated
to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child
witness may, however, move the court to allow him to testify in the manner provided
in the Rule (Sec. 8).

Thus, the Rule states that the court may:

a. Allow the child witness to testify in a narrative form (Sec. 19);
b. Allow leading questions in all stages of the examination of a child if the same will
further the interests of justice (Sec. 20);
c. When a child does not understand English or Filipino language or is unable to
communicate in said languages, an interpreter may be appointed by the court,
motu proprio or upon motion (Sec. 9);
d. The court may, motu proprio or upon motion, appoint a facilitator if it determines
that the child is unable to understand or respond to the questions asked (Sec.
10);
e. A child testifying at a judicial proceeding or making a deposition shall have the
right to be accompanied by one or two persons of his own choosing to provide
him emotional support (Sec. 11);
f. Allow the child reasonable periods of relief while undergoing direct, cross, re-
direct and re-cross examinations as often as necessary depending on his
developmental level (Sec. 15);
g. While testifying, a child shall be allowed to have an item of his own choosing
such as a blanket, toy or doll (emotional security item) (Sec. 17);
h. The court may prohibit a counsel from approaching a child if it appears that the
child is fearful of or intimidated by the counsel (Sec. 18);
i. The court may order that persons attending the trial shall not enter or leave the
courtroom during the testimony of the child (Sec. 24).

Live-Link TV Testimony of a Child Witness

Q: When may the trial court order that the testimony of a child be taken by
live-link television? (2005 Bar)
ANS: In criminal cases where a child is a victim or witness, the prosecutor, counsel
or the guardian ad litem may apply for an order that the testimony of the child be
taken in a room outside the courtroom and be televised to the courtroom by live-link
television.

The person seeking such an order shall apply at least 5 days before the trial date,
unless the court finds on the record that the need for such an order was not
reasonably foreseeable.

The court may order that the testimony of the child be taken by live-link television if
there is a substantial likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as the case may
be. The trauma must be of a kind which would impair the completeness or
truthfulness of the testimony of the child. The child shall, therefore, testify in a
separate room.

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The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject to
a protective order (Sec. 25).

Videotaped Deposition of a Child Witness

Q: When may a deposition of a child witness be videotaped?
ANS: The prosecutor, counsel, or guardian ad litem may apply for an order that a
deposition be taken of the testimony of the child and that it be recorded and
preserved on videotape. Before the guardian ad litem applies for this order, he
shall consult with the prosecutor or counsel.

NOTE:
a. If the court finds that the child will not be able to testify in open court at trial, it
shall issue an order that the deposition of the child be taken and preserved by
videotape. The judge shall preside at the videotaped deposition of the child.
b. It must be noted that the right of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be violated during
the deposition.
c. If the order of the court is based on evidence that the child is unable to testify in
the physical presence of the accused, the court may direct the latter to be
excluded from the room. In such case, the court shall order that the testimony of
the child be taken by live-link television.
d. The videotaped deposition shall be preserved and stenographically recorded and
be subject to a protective order.
e. If at the time of trial, the court finds that the child is unable to testify (substantial
likelihood to suffer trauma), or is unavailable to testify for any reason under Sec.
4 [c], Rule 23 of the Rules of Civil Procedure, the court may admit into evidence
the videotaped deposition of the child in lieu of his testimony at the trial. The court
shall issue an order stating the reasons therefor (Sec. 27).

Hearsay Exception in Child Abuse Cases

Q: What are the rules on hearsay exception in child abuse cases?
ANS: A statement made by a child describing any act or attempted act of child
abuse, not otherwise admissible under the hearsay rule, may be admitted in
evidence in any criminal or non-criminal proceeding.

For such statements to be admissible, the following rules shall apply:

a. Before such hearsay statement may be admitted, its proponent shall make known
to the adverse party the intention to offer such statement and its particulars to
provide him a fair opportunity to object.
b. If the child is available, the court shall, upon motion of the adverse party, require
the child to be present at the presentation of the hearsay statement for cross-
examination by the adverse party.
c. When the child is unavailable, the fact of such circumstance must be proved by
the proponent.
d. In ruling on the admissibility of such hearsay statement, the court shall consider
the time, content and circumstances thereof which provide sufficient indicia of
reliability (Sec. 28).

Q: When shall a child be deemed unavailable?

ANS: A child witness is deemed unavailable under the following situations:

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 a. Is deceased, suffers from physical infirmity, lack of memory, mental illness,
or will be exposed to severe psychological injury; or
b. Is absent from the hearing and the proponent of his statement has been
unable to procure his attendance by process or other reasonable means
(Ibid).

Q: What is the effect if a child witness is unavailable?

ANS: When the child witness is unavailable, his hearsay testimony shall be
admitted only if corroborated by other admissible evidence (Ibid.).

Sexual Abuse Shield Rule

Q: What is Sexual Abuse Shield Rule?
ANS: As a general rule, the following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse:
a. Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
b. Evidence offered to prove the sexual predisposition of the alleged victim (Sec.
30).

Q: Is the sexual abuse shield rule absolute?

ANS: No. Evidence of specific instances of sexual behavior by the alleged victim to
prove that a person other than the accused was the source of the semen, injury, or
other physical evidence shall be admissible (Ibid.).

Protective Orders
Q: When is Protective Order available?
ANS: A protective order shall be available in the following instances:
a. Any videotape or audiotape of a child that is part of the court record shall
be under a protective order that provides as follows:
i. Tapes may be viewed only by parties, their counsel, their expert witness,
and the guardian ad litem;
ii. No tape, or any portion thereof, shall be divulged by any person
mentioned to any other person, except as necessary for the trial;
iii. No person shall be granted access to the tape unless he signs a written
affirmation that in case of violation of the protective order, he will be
subject to the contempt power of the court;
iv. Each of the tape cassettes and transcripts thereof made available shall
bear a cautionary notice;
v. No tape shall be given, loaned, sold, or shown to any person except as
ordered by the court;
vi. Within 30 days from receipt, all copies and any transcripts thereof shall
be returned to the clerk of court for safekeeping unless the period is
extended by the court on motion of a party; and
vii. The protective order shall remain in full force and effect until further
order of the court.
b. As additional protective orders, the court may, motu proprio or on motion of
any party, the child, his parents, legal guardian, or the guardian ad litem,
issue additional orders to protect the privacy of the child (Sec. 31).

VI. OFFER AND OBJECTION

A.OFFER OF EVIDENCE
Q: What is the rule on offer of evidence?

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 ANS: The court shall consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be specified (Sec. 34, Rule
132).

B.WHEN TO MAKE AN OFFER

Q: When to make an offer?
ANS: The proper time to offer evidence depends on its form.
a. With respect to testimonial or oral evidence, the offer must be made at the
time the witness is called to testify;
b. For documentary and object evidence, it shall be offered after the
presentation of a party's testimonial evidence. Such offer shall be done
orally unless allowed by the court to be done in writing (Sec. 35, Rule 132).

C.OBJECTION
Q: When is the proper time for objection?
ANS: The proper time to make a protest or objection against the admission of
evidence depends on the manner the evidence is offered.
a. Objection to evidence offered orally must be made immediately after the offer is
made;
b. Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefore shall become
reasonably apparent;
c. In case of an offer of evidence in writing, the objection must be within 3 days after
notice of the offer unless a different period is allowed by the court (Sec. 36, Rule
132).

NOTE: A protest or objection against the admission of any evidence must be made
at the proper time, and if not so made, it will be understood to have been waived
(Mactan Cebu International Airport Authority v. Court of Appeals, G.R. No. 121506,
October 30, 1996). In any case, the grounds for the objections must be specified
(Sec. 36, Rule 132).

Q: When should the objection to documentary evidence be made?

ANS: Objection to the documentary evidence must be made at the time it is
formally offered, not earlier. The identification of the document before it is marked
as an exhibit does not constitute the formal offer of the document as evidence for
the party presenting it. Objection to the Identification and marking of the document
is not equivalent to objection to the document when it is formally offered in
evidence. What really matters is the objection to the document at the time it is
formally offered as an exhibit (Interpacific Transit, Inc. v. Aviles, G.R. No. 86062,
June 6, 1990).

D.REPETITION OF AN OBJECTION
Q: When may a continuing objection be made?
ANS: When it becomes reasonably apparent in the course of the examination of a
witness that the questions being propounded are of the same class as those to
which objection has been made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the objection, it being sufficient for the
adverse party to record his continuing objection to such class of questions (Sec. 37,
Rule 132).

E.RULING
Q: When should the court rule on the objection raised?

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 ANS: The ruling of the court must be given immediately after the objection is made.
The court may however take a reasonable time to study the questions raised by the
objection, but a ruling should always be made during the trial and at such time as
will give the party against whom it is made an opportunity to meet the situation
presented by the ruling.

NOTE: 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
(Sec. 38, Rule 132).

F.STRIKING OUT OF AN ANSWER

Q: When is motion to strike out answer proper?
ANS: A motion to strike out may be availed in the following instances:
a. When the answer is premature;
b. When the answer of the witness is irrelevant, incompetent or otherwise
improper;
c. When the answer is unresponsive;
d. When the witness becomes unavailable for cross-examination through no
fault of the cross-examining party; or
e. When the testimony was allowed conditionally and the condition for its
admissibility was not fulfilled (Riano, p. 467).

G.TENDER OF EXCLUDED EVIDENCE

Q: What is meant by tender of excluded evidence?
ANS: If documents or things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the record.

If the evidence excluded is oral, the offeror may state for the record the same and
other personal circumstances of the witness and the substance of the proposed
testimony (Sec. 40, Rule 132).

NOTE: This is otherwise known as “offer of proof”. It is a disclosure of the evidence

the offering party wishes to introduce in the face of rejection to the admission of
said evidence. In case of an appeal, the appellate court may be able to examine
said exhibits and to judge whether or not their rejection was erroneous (Herrera, p.
342).

REVISED RULES ON SUMMARY PROCEDURE

I. CASES COVERED BY THE RULE
Q: What are the cases covered by the rule?
ANS: They are the following:
a. Civil cases
i. All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered;
ii. All other civil cases, except probate proceedings, where the total amount
of the plaintiff’s claim does not exceed PhP100,000 or does not exceed
PhP200,000 in Metro Manila, exclusive of interests and costs.
b. Criminal cases
i. Violations of traffic laws, rules and regulations;
ii. Violations of the Rental Law ;

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 iii. Violations of municipal or city ordinances;
iv. Violations of the Bouncing Checks Law (B.P. Blg. 22);
v. All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding 6 months, or a fine not
exceeding PhP1,000 or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom;
vi. In offenses involving damage to property through criminal negligence,
this Rule shall govern where the imposable fine does not exceed
PhP10,000 (Sec. 1).

II. EFFECT OF FAILURE TO ANSWER

Q: What is the effect of failure to answer?
ANS: Should the defendant fail to answer the complaint within 10 days from the
service of summons, the court, motu proprio, or on motion of the plaintiff, shall
render judgment (not an order declaring the defendant in default) as may be
warranted by the facts alleged in the complaint and limited to what is prayed for
therein. The court may, in its discretion, reduce the amount of damages and
attorney’s fees claimed for being excessive or otherwise unconscionable (Sec. 6).

III. PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES

Q: When should the preliminary conference be held?
ANS: A preliminary conference shall be held not later than 30 days after the last
answer is filed. The rules on pre-trial shall be applicable to the preliminary
conference unless it is inconsistent with the provisions of the Rule (Sec. 7).

Q: What is the effect of failure of parties to appear at the preliminary

conference?
ANS: The failure of the plaintiff to appear in the preliminary conference shall be a
cause for the dismissal of the complaint. The defendant in such case shall be
entitled to judgment on his counterclaim. All cross-claims shall be dismissed.

If a sole defendant fails to appear, the plaintiff shall be entitled to judgment as

warranted by the allegations in the complaint and limited to the reliefs prayed for
therein. This rule shall not apply when there are two or more defendants sued
under the same cause of action who had pleaded a common defense and at least
one of them attends the preliminary conference (Sec. 7).

KATARUNGANG PAMBARANGAY LAW

(P.D. No. 1508; R.A. No. 7160, as amended)
I. CASES COVERED
Q: What is the coverage of Katarungang Pambarangay Law?
ANS: Subject to the exceptions enumerated below, the Katarungang Pambarangay
rule covers all disputes that may be the subject of barangay conciliation (Sec. 2 PD
1508; Sec. 408, Local Government Code).

II. SUBJECT MATTER FOR AMICABLE SETTLEMENT

Q: What kind of disputes are subject to amicable settlement?
ANS: The general rule declares that all disputes may be the subject of the
barangay proceedings for amicable settlement and prior recourse thereto is a pre-

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 condition before a complaint in court or any government offices may be filed (Sec.
412, LGC), except in the following:
a. Where one party is the government, or any subdivision or instrumentality thereof;
b. Where one party is a public officer or employee and the dispute relates to the
performance of his official functions;
c. Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference to
amicable settlement by an appropriate Lupon;
d. Any complaint by or against corporations, partnerships or juridical entities, since
only individuals shall be parties to Barangay conciliation proceedings either as
complainants or respondents;
e. Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the
parties thereto agree to submit their differences to amicable settlement by an
appropriate Lupon;
f. Offenses for which the law prescribes a maximum penalty of imprisonment
exceeding 1 year or a fine of over PhP5,000;
g. Offenses where there is no private offended party;
h. Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically the following:
i. Criminal cases where accused is under police custody or detention;
ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of or on acting in his behalf;
iii. Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of
the action; and
iv.Actions which may be barred by the Statute of Limitations.
i. Any class of disputes which the President may determine in the interest of justice
or upon the recommendation of the Secretary of Justice;
j. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL);
k. Labor disputes or controversies arising from employer-employee relations;
l. Actions to annul judgment upon a compromise which may be filed directly in court
(Adm. Circ. No. 14-93).

III. VENUE
Q: What are the rules on venue of barangay conciliation?
ANS: The following rules govern the venue of barangay conciliation:
a. Disputes between persons actually residing in the same barangay shall be
brought for amicable settlement before the Lupon of said barangay.
b. Those involving actual residents of different barangays within the same city
or municipality shall be brought in the barangay where the respondent or
any of the respondents actually resides, at the election of the complainant.
c. All disputes involving real property or any interest therein shall be brought
in the barangay where the real property or the larger portion thereof is
situated.
d. Those arising at the workplace where the contending parties are employed
or at the institution where such parties are enrolled for study, shall be
brought in the barangay where such workplace or institution is located
(Sec. 409, LGC).

IV. WHEN PARTIES MAY DIRECTLY GO TO COURT

Q: May parties directly go to court?

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 ANS: As a general rule, no. However, the parties may go directly to court in the
following instances:
a. Where the accused is under detention;
b. Where a person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings;
c. Where actions are coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property, and support pendente lite;
and
d. Where the action may otherwise be barred by the statute of limitations (Sec. 412,
LGC).

V. EXECUTION
Q: What is the period for execution?
ANS: The amicable settlement and arbitration award shall have the force and effect
of a final judgment of a court upon the expiration of 10 days from the date thereof
(Sec. 416, LGC). The settlement or award may be enforced by execution of the
Lupon within 6 months from the date of the settlement. After the lapse of such time,
the settlement may be enforced by action in the appropriate city or municipal court
(Sec. 417, LGC).

VI. REPUDIATION
Q: When may a party repudiate the amicable settlement?
ANS: Any party to the dispute may, within 10 days from the date of the settlement,
repudiate the same by filing with the Lupon chairman a statement to that effect
sworn to before him, where the consent is vitiated by fraud, violence or intimidation.
The repudiation shall be sufficient basis for the issuance of the certification
necessary for filing a complaint before the courts (Sec. 418, LGC).

RULES OF PROCEDURE FOR SMALL CLAIMS CASES

(A.M. No. 08-8-7-SC)
I. SCOPE AND APPLICABILITY OF THE RULE
Q: What is the scope of the rule?
ANS: The rule shall govern the procedure in actions for payment of money where
the value of the claim does not exceed PhP100,000.00 exclusive of interest and
costs, before the:
a. Metropolitan Trial Courts;
b. Municipal Trial Courts in Cities;
c. Municipal Trial Courts; and
d. Municipal Circuit Trial Courts (Sec. 2).

Q: In what cases is the rule on small claims available?

ANS: The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which
are:
a. Purely civil in nature where the claim or relief prayed for by the plaintiff is solely
for payment or reimbursement of sum of money; and
b. The civil aspect of criminal actions, either filed before the institution of the
criminal action, or reserved upon the filing of the criminal action in court, pursuant
to Rule 111 of the Revised Rules of Criminal Procedure.

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 NOTE: These claims or demands may be:
a. For money owed under any of the following:
i. Contract of Lease
ii. Contract of Loan
iii. Contract of Services
iv. Contract of Sale
v. Contract of Mortgage
b. For damages arising from any of the following:
i. Fault or negligence
ii. Quasi-contract
iii. Contract
c. The enforcement of a barangay amicable settlement or an arbitration award
involving a money claim covered by this Rule pursuant to Sec. 417 the Local
Government Code of 1991 (Sec. 4).

The kinds of cases that can be filed in Small Claims Court vary, but the case must
seek money only. For example, a suit cannot be brought in Small Claims Court to
force a person or business to fix a damaged good; or to demand fulfillment of a
promised obligation which is not purely for money, or to seek money to compensate
for pain and suffering. Some of the kinds of cases which are allowed as small
claims include the following:
a. Actual damage caused to vehicles, other personal property, real property or
person;
b. Payment or reimbursement for property, deposit, or money loaned;
c. Payment for services rendered, insurance claim, rent, commissions, or for goods
sold and delivered;
d. Money claim pursuant to a contract, warranty or agreement; and
e. Purely civil action for payment of money covered by bounced or stopped check
(Explanatory note, A.M. No. 08-8-7-SC).

II. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE

Q: How is small claims action commenced?
ANS: A small claims action is commenced by filing with the court of an:
a. Accomplished and verified Statement of Claim in duplicate;
b. Accompanied by a Certification of Non-forum Shopping;
c. Two (2) duly certified photocopies of the actionable document/s subject of
the claim;
d. The affidavits of witnesses and other evidence to support the claim.

NOTE: No evidence shall be allowed during the hearing which was not
attached to or submitted together with the Claim, unless good cause is shown
for the admission of additional evidence. No formal pleading, other than the
Statement of Claim, is necessary to initiate a small claims action (Sec. 5).

Q: What is the period for filing a verified response?

ANS: The defendant shall file with the court and serve on the plaintiff a duly
accomplished and verified response within a non-extendible period of ten (10) days
from receipt of summons. It shall be accompanied by certified photocopies of
documents, as well as affidavits of witnesses and other evidence in support thereof.
No evidence shall be allowed during the hearing which was not attached to or
submitted together with the Response, unless good cause is shown for the
admission of additional evidence (Sec. 11).

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 Q: What is the effect of failure to file a response?
ANS: The court by itself shall render judgment as may be warranted by the facts
alleged in the Statement of Claim limited to what is prayed for. The court however,
may, in its discretion, reduce the amount of damages for being excessive or
unconscionable (Sec. 12).

III. PROHIBITED PLEADINGS AND MOTIONS

Q: What are the prohibited pleadings and motions?
ANS: They are the following:
a. Motion to dismiss the complaint, except on the ground of lack of
jurisdiction;
b. Motion for a bill of particulars;
c. Motion for new trial, or for reconsideration of a judgment, or for reopening
of trial;
d. Petition for relief from judgment;
e. Motion for extension of time to file pleadings, affidavits, or any other paper;
f. Memoranda;
g. Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
h. Motion to declare the defendant in default;
i. Dilatory motions for postponement;
j. Reply;
k. Third-party complaints;
l. Interventions.

IV. APPEARANCES
Q: Who shall appear for the party at the designated hearing?
ANS: The parties shall appear at the designated date of hearing personally or
through a representative authorized under a Special Power of Attorney to enter into
an amicable settlement, to submit to Judicial Dispute Resolution and to enter into
stipulations or admissions of facts and of documentary exhibits (Sec. 16). No
attorney shall appear in behalf of or represent a party at the hearing unless the
attorney is the plaintiff or defendant (Sec. 17).

Q: What is the effect of failure to appear at the hearing?

ANS: Failure of the plaintiff to appear shall be cause for the dismissal of the claim
without prejudice. The defendant who appears shall be entitled to judgment on a
permissive counterclaim. Failure of the defendant to appear shall have the same
effect as his failure to file a response. This rule shall not apply when at least one of
two or more defendants sued on a common cause of action appear. Failure of both
parties to appear shall cause the dismissal with prejudice of both the claim and
counterclaim (Sec. 18).

V. HEARING; DUTY OF THE JUDGE

Q: What are the duties of the judge during the hearing?
ANS: The following are the duties of the judge during the hearing:
a. At the beginning of the court session, the judge shall read aloud a short
statement explaining the nature, purpose and the rule of procedure of small
claims cases (Sec. 20);
b. At the hearing, the judge shall exert efforts to bring the parties to an
amicable settlement of their dispute;

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 c. Any settlement or resolution of the dispute shall be reduced into writing,
signed by the parties and submitted to the court for approval;
d. Settlement discussions shall be strictly confidential and any reference to
any settlement made in the course of such discussions shall be punishable
by contempt (Sec. 21).

VI. FINALITY OF JUDGMENT

Q: What is the nature of judgment of court?
ANS: The decision of the court shall be final and unappealable (Sec. 23) and if it is
rendered in favor of the plaintiff, the judgment shall be executed upon his motion
(Sec. 24).

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

(AM NO. 09-6-8-SC)
I. SCOPE AND APPLICABILITY OF THE RULE
Q: What is the scope of application of this rule?
ANS: These Rules shall govern the procedure in civil, criminal and special civil
actions before the RTC, 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:
a. Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
b. P.D. No. 705, Revised Forestry Code;
c. P.D. No. 856, Sanitation Code;
d. P.D. No. 979, Marine Pollution Decree;
e. P.D. No. 1067, Water Code;
f. P.D. No. 1151, Philippine Environmental Policy of 1977;
g. P.D. 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;
i. R.A. 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, School Premises or in any Other Public Ground;
j. R.A. No. 4850, Laguna Lake Development Authority Act;
k. R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
l. R.A. No. 7076, People’s Small-Scale Mining Act;
m. R.A. No. 7586, National Integrated Protected Areas System Act including all
laws, decrees, orders, proclamations and issuances establishing protected
areas;
n. R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
o. R.A. No. 7942, Philippine Mining Act;
p. R.A. No. 8371, Indigenous Peoples Rights Act;
q. R.A. No. 8550, Philippine Fisheries Code;
r. R.A. No. 8749, Clean Air Act;
s. R.A. No. 9003, Ecological Solid Waste Management Act;
t. R.A. No. 9072, National Caves and Cave Resource Management Act;
u. R.A. No. 9147, Wildlife Conservation and Protection Act;
v. R.A. No. 9175, Chainsaw Act;
w. R.A. No. 9275, Clean Water Act;

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 x. R.A. No. 9483, Oil Spill Compensation Act of 2007; and
y. Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A. 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); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act;
R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and
Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic
Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637,
Philippine Biofuels Act; and other existing laws that relate to the conservation,
development, preservation, protection and utilization of the environment and
natural resources (Sec. 2, Rule 1).

II. CIVIL PROCEDURE

A.PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
Q: Can the court issue TRO or preliminary injunction?
ANS: Except the Supreme Court, no court can issue a TRO or writ of preliminary
injunction against lawful actions of government agencies that enforce environmental
laws or prevent violations thereof (Sec. 10, Rule 2).

B.PRE-TRIAL CONFERENCE; CONSENT DECREE

Q: What are the rules during pre-trial conference and when can the judge
issue consent decree?
ANS: The judge shall put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences. The judge shall exert best efforts to
persuade the parties to arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the parties in accordance with
law, morals, public order and public policy to protect the right of the people to a
balanced and healthful ecology. Evidence not presented during the pre-trial, except
newly discovered evidence, shall be deemed waived (Sec. 5, Rule 5).

C.PROHIBITED PLEADINGS AND MOTIONS

Q: What are prohibited pleadings and motions?
ANS: The following pleadings or motions shall not be allowed:
a. Motion to dismiss;
b. Motion for a bill of particulars;
c. Motion for extension of time to file pleadings, except to file answer, the
extension not to exceed fifteen (15) days;
d. Motion to declare the defendant in default;
e. Reply and rejoinder; and
f. Third party complaint (Sec. 2, Rule 2).

NOTE: Motion for intervention is permitted in order to allow the public to

participate in the filing and prosecution of environmental cases, which are
imbued with public interest. Petitions for certiorari are likewise permitted
since these raise fundamentally questions of jurisdiction. Under the
Constitution, the SC may not be deprived of its certiorari jurisdiction.

D.TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO)

Q: What is environmental protection order?

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 ANS: An Environmental Protection Order refers to an order issued by the court
directing or enjoining any person or government agency to perform or desist from
performing an act in order to protect, preserve or rehabilitate the environment (Sec.
4 [d], Rule 1).

Q: What are the rules in the issuance of Temporary Environmental Protection

Order (TEPO)?
ANS: A TEPO shall be issued when it appears from the verified complaint with a
prayer for the issuance of an Environmental Protection Order that the matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury.
The applicant therefor shall be exempted from the posting of a bond for the
issuance of the TEPO. The executive judge of a multiple sala court before raffle or
the presiding judge of a single sala court as the case may be, may issue ex parte a
TEPO effective only for 72 hours from the date of the receipt of the TEPO by the
party enjoined. Within the said period, the court where the case is assigned shall
conduct a summary hearing to determine whether the TEPO may be extended until
the termination of the case. The court handling the case shall periodically monitor
the existence of acts that are the subject matter of the TEPO and may lift the same
at any time as the circumstances warrant (Sec. 8, Rule 2).

E.JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT

Q: Is the judgment of the court immediately executory?
ANS: Yes. Any judgment directing the performance of acts for the protection,
preservation or rehabilitation of the environment shall be executory pending appeal
unless restrained by the appellate court (Sec. 2, Rule 5).

Q: What are the reliefs in a citizen suit?

ANS: If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the
payment of attorney’s fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the violator, or to contribute to a
special trust fund for that purpose subject to the control of the court (Sec. 1, Rule
5).

F.PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF

CONTINUING MANDAMUS
Q: Can the court convert TEPO to a permanent environmental protection
order?
ANS: Yes. In the judgment, the court may convert the TEPO to a permanent EPO
or issue a writ of continuing mandamus directing the performance of acts which
shall be effective until the judgment is fully satisfied. The court may, by itself or
through the appropriate government agency, monitor the execution of the judgment
and require the party concerned to submit written reports on a quarterly basis or
sooner as may be necessary, detailing the progress of the execution and
satisfaction of the judgment. The other party may, at its option, submit its comments
or observations on the execution of the judgment (Sec. 3, Rule 5).

G.STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION

Q: What is Strategic Lawsuit Against Public Participation (SLAPP)?
ANS: It refers to an action whether civil, criminal or administrative, brought against
any person, institution or any government agency or local government unit or its
officials and employees, with the intent to harass, vex, exert undue pressure or

261
 stifle any legal recourse that such person, institution or government agency has
taken or may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights (Sec. 4 [g], Rule 1).

Q: How may the defendant raise the defense of SLAPP?

ANS:If a case is a SLAPP the defendant in that case may interpose the affirmative
defense that the case is a SLAPP and shall be supported by documents, affidavits,
papers and other evidence; and, by way of counterclaim, pray for damages,
attorney’s fees and costs of suit (Sec. 2, Rule 6).

Q: What shall the court do if a defendant raises the defense of SLAPP?

ANS: The court shall direct the plaintiff or adverse party to file an opposition
showing the suit is not a SLAPP, attaching evidence in support thereof, within a
non-extendible period of 5 days from receipt of notice that an answer has been
filed. The defense of a SLAPP shall be set for hearing by the court after issuance of
the order to file an opposition within 15 days from filing the comment or the lapse of
the period (Sec. 2, Rule 6).

III. SPECIAL PROCEEDINGS

A.WRIT OF KALIKASAN
Q: What is the Writ of Kalikasan?
ANS: The writ of kalikasan 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 public
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 (Sec. 1, Rule 7).

B.PROHIBITED PLEADINGS AND MOTIONS

Q: What are prohibited pleadings and motions in a petition for writ of
kalikasan?
ANS: The following are the prohibited pleadings and motions:
a. Motion to Dismiss;
b. Motion for Extension of time to file return;
c. Motion for Postponement;
d. Motion for a Bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to Declare respondent in default (Sec. 9, Rule 7).

NOTE: A motion for intervention is excluded from the enumeration. Allowing

this motion is a reaffirmation of the public participation aspect in the Writ of
Kalikasan since there may be a large, qualified pool of possible
representatives interested in availing of the remedy.

C.DISCOVERY MEASURES
Q: What discovery measures are available to the parties?
ANS: A party may file a verified motion for the following reliefs:

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 a. Ocular Inspection; order – The court may order any person in possession
or control of a designated land or other property to permit entry for the
purpose of inspecting or photographing the property or any relevant object
or operation thereon.
b. Production or inspection of documents or things; order – The court may
order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of the
movant (Sec. 12, Rule 7).

D.WRIT OF CONTINUING MANDAMUS

Q: What is writ of continuing mandamus?
ANS: A writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or series of
acts decreed by final judgment which shall remain effective until judgment is fully
satisfied (Sec. 4 [c], Rule 1). It permits the court to retain jurisdiction after judgment
in order to ensure the successful implementation of the reliefs mandated under the
court’s decision.

Q: What are the grounds for continuing mandamus?

ANS: The grounds are the following:
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 rule or regulation or a
right therein;
b. When any agency or instrumentality of the government or officer thereof
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 (Sec. 1, Rule 8).

Q: Who may file a petition for writ of continuing mandamus?

ANS: A writ of continuing mandamus is available only to one who is personally
aggrieved by the unlawful act or omission (Sec. 1, Rule 8).

Q: Is the application for writ of continuing mandamus exempt from docket

fees?
ANS: Yes, the application is exempted from the payment of docket fees (Sec. 3,
Rule 8).

Q: What is the venue for the filing of the petition?

ANS: The petition shall be filed with the Regional Trial Court exercising jurisdiction
over the territory where the actionable neglect or omission occurred or with the
Court of Appeals or the Supreme Court (Sec. 2, Rule 8).

IV. CRIMINAL PROCEDURE

A.WHO MAY FILE
Q: Who may file a criminal complaint under the rules of procedure for
environmental cases?

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 ANS: Any offended party, peace officer or any public officer charged with the
enforcement of an environmental law may file a complaint before the proper officer
in accordance with the Rules of Court (Sec. 1, Rule 9).

B.INSTITUTION OF CRIMINAL AND CIVIL ACTION

Q: What is the effect of institution of criminal action?
ANS: When a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged, shall be deemed instituted with the
criminal action unless the complainant waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the criminal action. Unless
the civil action has been instituted prior to the criminal action, the reservation of the
right to institute separately the civil action shall be made during arraignment (Sec.
1, Rule 10).

C.ARREST WITHOUT WARRANT, WHEN VALID

Q: When is an arrest without a warrant lawful?
ANS: A peace officer or an individual deputized by the proper government agency
may, without a warrant, arrest a person:
a. When, in his presence, the person to be arrested has committed, is actually
committing or is attempting to commit an offense; or
b. When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it. Individuals deputized by the proper government
agency who are enforcing environmental laws shall enjoy the presumption of
regularity under Section 3 (m), Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws (Sec. 1, Rule 111).

D.PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS

Q: What is the procedure in the custody and disposition of seized items?
ANS: Custody and disposition of seized items shall be in accordance with the
applicable laws or rules promulgated by the concerned government agency (Sec. 1,
Rule 12). In the absence of applicable laws or rules promulgated by the concerned
government agency, the following procedure shall be observed:
a. The apprehending officer having initial custody and control of the seized items,
equipment, paraphernalia, conveyances and instruments shall physically
inventory and whenever practicable, photograph the same in the presence of the
person from whom such items were seized.
b. Thereafter, the apprehending officer shall submit to the issuing court the return of
the search warrant within five (5) days from date of seizure or in case of
warrantless arrest, submit within five (5) days from date of seizure, the inventory
report, compliance report, photographs, representative samples and other
pertinent documents to the public prosecutor for appropriate action.
c. Upon motion by any interested party, the court may direct the auction sale of
seized items, equipment, paraphernalia, tools or instruments of the crime. The
court shall, after hearing, fix the minimum bid price based on the
recommendation of the concerned government agency. The sheriff shall conduct
the auction.
d. The auction sale shall be with notice to the accused, the person from whom the
items were seized, or the owner thereof and the concerned government agency.
e. The notice of auction shall be posted in 3 conspicuous places in the city or
municipality where the items, equipment, paraphernalia, tools or instruments of
the crime were seized.

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 f. The proceeds shall be held in trust and deposited with the government depository
bank for disposition according to the judgment (Sec. 2, Rule 12).

E.BAIL
Q: Where may bail be filed?
ANS: Bail may be filed in the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge, metropolitan trial
judge, municipal trial judge or municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a province, city or municipality other than
where the case is pending, bail may also be filed with any Regional Trial Court of
said place, or if no judge thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein. If the court grants bail,
the court may issue a hold-departure order in appropriate cases (Sec. 1, Rule 14).

Q: What are the duties of the court in acting upon the application for bail?
ANS: Before granting the application for bail, the judge must read the information in
a language known to and understood by the accused and require the accused to
sign a written undertaking, as follows:
a. To appear before the court that issued the warrant of arrest for arraignment
purposes on the date scheduled, and if the accused fails to appear without
justification on the date of arraignment, accused waives the reading of the
information and authorizes the court to enter a plea of not guilty on behalf of the
accused and to set the case for trial;
b. To appear whenever required by the court where the case is pending; and
c. To waive the right of the accused to be present at the trial, and upon failure of the
accused to appear without justification and despite due notice, the trial may
proceed in absentia (Sec. 2, Rule 14).

F.ARRAIGNMENT AND PLEA

Q: What is the period for arraignment?
ANS: The court shall set the arraignment of the accused within 15 days from the
time it acquires jurisdiction over the accused, with notice to the public prosecutor
and offended party or concerned government agency that it will entertain plea-
bargaining on the date of the arraignment (Sec. 1, Rule 15).

Q: Is plea bargaining allowed?

ANS: Yes. On the scheduled date of arraignment, the court shall consider plea-
bargaining arrangements. Where the prosecution and offended party or concerned
government agency agree to the plea offered by the accused, the court shall:
a. Issue an order which contains the plea-bargaining arrived at;
b. Proceed to receive evidence on the civil aspect of the case, if any; and
c. Render and promulgate judgment of conviction, including the civil liability for
damages (Sec. 2, Rule 15).

G.PRE-TRIAL
Q: When is the period for pre-trial conference?
ANS: After the arraignment, the court shall set the pre-trial conference within 30
days. It may refer the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least 3 days prior to the pre-trial (Sec. 1, Rule
16).

Q: What are the duties of the judge during pre-trial?

ANS: His duties are the following:

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 a. Place the parties and their counsels under oath;
b. Adopt the minutes of the preliminary conference as part of the pre-trial
proceedings, confirm markings of exhibits or substituted photocopies and
admissions on the genuineness and due execution of documents, and list
object and testimonial evidence;
c. Scrutinize the information and the statements in the affidavits and other
documents which form part of the record of the preliminary investigation
together with other documents identified and marked as exhibits to
determine further admissions of facts as to:
i. The court’s territorial jurisdiction relative to the offense(s) charged;
ii. Qualification of expert witnesses; and
iii. Amount of damages;
d. Define factual and legal issues;
e. Ask parties to agree on the specific trial dates and adhere to the flow chart
determined by the court which shall contain the time frames for the
different stages of the proceeding up to promulgation of decision;
f. Require the parties to submit to the branch clerk of court the names,
addresses and contact numbers of witnesses that need to be summoned
by subpoena; and
g. Consider modification of order of trial if the accused admits the charge but
interposes a lawful defense (Sec. 3, Rule 16).
h. All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and
counsel; otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in Section 1, Rule 118 of the
Rules of Court shall be approved by the court (Sec. 5, Rule 16).
i. The court shall issue a pre-trial order within 10 days after the termination of
the pre-trial, setting forth the actions taken during the pre-trial conference,
the facts stipulated, the admissions made, evidence marked, the number of
witnesses to be presented and the schedule of trial. The order shall bind
the parties and control the course of action during the trial (Sec. 7, Rule
16).

H.SUBSIDIARY LIABILITIES
Q: May the court enforce subsidiary liability?
ANS: Yes. In case of conviction of the accused and subsidiary liability is allowed by
law, the court may, by motion of the person entitled to recover under judgment,
enforce such subsidiary liability against a person or corporation subsidiarily liable
under Article 102 and Article 103 of the Revised Penal Code (Sec. 1, Rule 18).

V. EVIDENCE
A.PRECAUTIONARY PRINCIPLE
Q: What is the precautionary principle?
ANS: Precautionary principle states that when human activities may lead to threats
of serious and irreversible damage to the environment that is scientifically plausible
but uncertain, actions shall be taken to avoid or diminish that threat (Sec. 4 [f], Rule
1).

Q: When is the precautionary principle available?

ANS: When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it. The constitutional right of the

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 people to a balanced and healthful ecology shall be given the benefit of the doubt
(Sec. 1, Rule 20). The precautionary principle finds direct application in the
evaluation of evidence in cases before the courts. The said principle shifts the
burden of evidence of harm away from those likely to suffer harm and onto those
desiring to change the status quo.

Q: What is the nature of the precautionary principle for purposes of

evidence?
ANS: For purposes of evidence, the precautionary principle should be treated as a
principle of last resort, where application of the regular Rules of Evidence would
cause in an inequitable result for the environmental plaintiff.

Q: How should cases be resolved in case of doubt?

ANS: When in doubt, cases must be resolved in favor of the constitutional right to a
balanced and healthful ecology.

Q: What are the standards for the application of the precautionary principle?
ANS: In applying the precautionary principle, the following factors, among others,
may be considered:
a. Threats to human life or health;
b. Inequity to present or future generations; or
c. Prejudice to the environment without legal consideration of the environmental
rights of those affected (Sec. 2, Rule 20).

B.DOCUMENTARY EVIDENCE
Q: When is documentary evidence admissible?
ANS: Photographs, videos and similar evidence of events, acts, transactions of
wildlife, wildlife by-products or derivatives, forest products or mineral resources
subject of a case shall be admissible when authenticated:
a. By the person who took the same;
b. By some other person present when said evidence was taken; or
c. By any other person competent to testify on the accuracy thereof (Sec. 1, Rule
21).

NOTE: Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in performance of a duty specially enjoined
by law, are prima facie evidence of the facts therein stated (Sec. 2, Rule 21).

JUDICIAL AFFIDAVIT RULE

(A.M. No. 12-8-8-SC)
I. SCOPE AND WHERE APPLICABLE
Q: What is the scope and applicability of the Judicial Affidavit Rule?
ANS: The rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence before:
a. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts, and the Shari’a Circuit Courts but
shall not apply to small claims cases under A.M. 08-8-7-SC;
b. The Regional Trial Courts and the Shari’a District Courts;
c. The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the
Shari’a Appellate Courts;

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 d. The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippines; and
e. 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 (Sec. 1 [a]).

II. CONTENTS AND PROCEDURE

Q: Outline the procedure under the Judicial Affidavit Rule.
ANS: The procedure is as follows:
a. The parties shall file with the court and serve on the adverse party, not
later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:
i. The judicial affidavits of their witnesses, which shall take the place of
such witnesses’ direct testimonies; and
ii. The parties’ documentary or object evidence, if any.
b. Should a 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 affidavit is a faithful copy or
reproduction of that original.
c. In 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, failing which the latter shall not be
admitted (Sec. 2).
d. 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.
e. The adverse party may move to disqualify the witness or to strike out his
affidavit or any of the answers found in it on ground of inadmissibility. The
court shall promptly rule on the motion and, if granted, shall cause the
marking of any excluded answer (Sec. 6).
f. 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.
g. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the
answers that it needs for resolving the issues (Sec. 7).
h. 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.
i. After each piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall
immediately make its ruling respecting that exhibit (Sec. 8).

Q: What is the remedy of a requesting party if the witness or government

employee unjustifiably declines to execute a judicial affidavit?
ANS: If the government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness, unjustifiably declines
to execute a judicial affidavit, the requesting party may avail himself of the issuance
of a subpoena ad testificandum under Rule 21 of the Rules of Court (Sec. 5).

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 Q: What is the remedy of a requesting party if the witness or government
employee unjustifiably 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?
ANS: If the government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness, unjustifiably 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 duces tecum
under Rule 21 of the Rules of Court (Sec. 5).

Q: State the form and contents of a judicial affidavit.

ANS: A judicial affidavit shall be prepared in the language known to the witness
and, if not in English or Filipino, accompanied by a translation in English or Filipino,
and shall contain the following:
a. The 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. A statement 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:
i. Show the circumstances under which the witness acquired the facts upon
which he testifies;
ii. Elicit from him those facts which are relevant to the issues that the case
presents; and
iii. Identify the attached 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;
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 (Sec. 3);
g. A sworn attestation of the lawyer who conducted or supervised the examination
of the witness, to the effect that:
i. He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and
ii. Neither he nor any other person then present or assisting him coached the
witness regarding the latter’s answers.

NOTE: A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.

III. APPLICATION TO CRIMINAL ACTIONS

Q: In what instances does the Judicial Affidavit Rule apply in criminal
actions?
ANS: They are:
a. Where the maximum of the imposable penalty does not exceed six years;
b. Where the accused agrees to the use of judicial affidavits, irrespective of
the penalty involved; or
c. With respect to the civil aspect of the actions, whatever the penalties
involved are (Sec. 9).

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 Q: State the procedure for the application of the Judicial Affidavit Rule to
criminal actions.
ANS: The procedure is as follows:
a. The prosecution shall submit the judicial affidavits of its witnesses not later
than five days before the pre-trial, serving copies of the same upon the
accused.
b. The complainant or public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking them as Exhibits
A, B, C and so on. No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
c. If the accused desires to be heard on his defense after receipt of the
judicial affidavits of the prosecution, he shall have the option to submit his
judicial affidavit as well as those of his witnesses to the court within ten
days from receipt of such affidavits and serve a copy of each on the public
and private prosecutor, including his documentary and object evidence.
These affidavits shall serve as direct testimonies of the accused and his
witnesses when they appear before the court to testify (Sec. 9).

IV. EFFECT OF NON-COMPLIANCE

Q: What is the effect of a party fails to submit the required affidavits and
exhibits on time?
ANS: They 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 party, and the defaulting
party pays a fine of not less than PhP1,000 nor more than PhP5,000, at the
discretion of the court (Sec. 10).

Q: State the effect if a witness or counsel fails to appear at the scheduled

hearing of the case as required.
ANS: The court shall not consider the affidavit of the witness who fails to appear at
the scheduled hearing. 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 (Sec. 10).

Q: What is the effect if the judicial affidavits do not conform to the

requirements of Sections 3 and 4 of the Judicial Affidavit Rule?
ANS: 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.
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 PhP1,000 nor more than PhP5,000, at the
discretion of the court (Sec. 10).

V. EFFECT ON OTHER RULES

Q: State the effect of the Judicial Affidavit Rule on existing rules.
ANS: The provisions of the Rules of Court and the rules of procedure governing
investigating officers and bodies authorized by the Supreme Court to receive
evidence are repealed or modified insofar as these are inconsistent with the
provisions of the Rule. The rules of procedure governing quasi-judicial bodies
inconsistent with the Rule are disapproved (Sec. 11).

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 EFFICIENT USE OF PAPER RULE
(A.M. No. 11-9-4-SC)
Q: To what courts and bodies shall the Efficient Use of Paper Rule apply?
ANS: The rule shall apply to all courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court (Sec. 2).

Q: State the format and style of pleadings, motions and similar papers under
the Rule.
ANS: All pleadings, motions, and similar papers intended for the court and quasi-
judicial body's consideration and action (court-bound papers) shall be written in:
a. Single space with a one and-a-half space between paragraphs;
b. An easily readable font style of the party's choice, of 14-size font;
c. On a 13-inch by 8.5-inch white bond paper (Sec. 3); and
d. With a left hand margin of 1.5 inches from the edge; an upper margin of 1.2
inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower
margin of 1.0 inch from the edge. Every page must be consecutively numbered
(Sec. 4).

Q: What is the required number of copies to be filed in court?

ANS: Unless otherwise directed by the court, the number of papers that a party is
required or desires to file shall be as follows:
a. Supreme Court – one original (properly marked) and four copies, unless the case
is referred to the Court En Banc, in which event, the parties shall file ten
additional copies.
i. For the En Banc, the parties need to submit only two sets of annexes, one
attached to the original and an extra copy.
ii. For the Division, the parties need to submit also two sets of annexes, one
attached to the original and an extra copy.
iii. Parties to cases before the Supreme Court are further required, on voluntary
basis for the first six months following the effectivity of this Rule and
compulsorily afterwards unless the period is extended, to submit,
simultaneously with their court-bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to the Court's e-mail address
or by compact disc (CD).
b. Court of Appeals and the Sandiganbayan – one original (properly marked) and
two copies with their annexes;
c. Court of Tax Appeals – One original (properly marked) and two copies with
annexes. On appeal to the En Banc, one original (properly marked) and eight
copies with annexes; and
d. Other courts – one original (properly marked) with the stated annexes attached to
it.

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