BT-RemRev Edited PDF

REMEDIAL LAW REVIEWER
Section 5 (5), Art. VIII of the Constitution provides that

G ENERAL P RINCIPLES the Supreme Court shall have the power to:
a. promulgate rules concerning the protection and

Remedial Law enforcement of constitutional rights, pleading, practice,
and procedure in all courts;
Remedial Law is that branch of law which prescribes b. admission to the practice of law;
the method of enforcing rights or obtaining redress for c. the Integrated Bar;
their invasion. d. and legal assistance to the underprivileged
Limitations of the Rule-making power of the

Substantive Law vs. Remedial Law Supreme Court
1) The rules shall provide a simplified and inexpensive

Substantive Law Remedial Law procedure for the speedy disposition of cases
It is that part of the law It refers to the rules 2) They shall be uniform for all courts of the same
which creates, defines or prescribing methods grade
regulates rights whereby causes of action 3) They shall not diminish, increase, or modify
concerning life, liberty or may be effectuat ed, substantive rights.
property, which when wrongs redressed and 4) The power t o admit attorneys to the Bar is not an
violat ed gives rise to a reliefs obtained (also arbitrary and despotic one but is the duty of the court to
cause of action. known as Adjective Law). exercise and regulate it by a sound and judicial
discretion.
It makes vested rights No vested rights may
possible. attach to nor arise
 Rules of procedure of special courts and quasi-
therefrom.
judicial bodies shall remain effective unless
It is prospective in It may be made disapproved by the Supreme Court.
application. applicable to actions
pending and Note: In ESTIPONA v. LOBRIGO (G. R.No. 226679,
undetermined at the time August 15, 2017), Petitioner S alvador A. Estipona, Jr.
of their passage and are (Estipona) is the accused for violation of Section 11,
deemed retroactive in that Article II of R.A. No. 9165 (P ossession of Dangerous
sense and to that extent. Drugs). Estipona filed a Motion to Allow him to Enter
It originat es from the It does not originat e from into a Plea Bargaining Agreement, it was however
legislature. the legislature but has the denied bas ed on the provision of RA9165 that plea
force and effect of law if bargain is not allowed in violation of RA9165.
not in conflict with The Supreme Court ruled that provision is
substantive law. unconstitutional because Sec 5(5) Art.VIII of the
Constitution provides that the power to promulgate
It cannot be enacted by The Supreme Court is
rules, practice, pleadings and procedure is now in the
the Supreme Court. expressly empowered to
exclusive domain of the SC.
promulgate procedural
rules.
In MORALES v. COURT OF APP EALS (G.R.
Nos. 217126-27, November 10, 2015), Binay and other
public officers and employees of the City Government
Judicial Power of Makati were charged of plunder and violation of
RA3019 before the Ombudsman. Ombudsman issued
It includes the duty of the courts of justice to settle preventive suspension which Binay seeks to nullify. CA
actual controversies involving rights, which are legally issued a TRO and/or WRI. Morales opposed
demandable and enforc eable, and to determine contending that no writ of injunction shall be issued to
whet her or not there has been grave abuse of delay the investigation being conducted by
discretion amounting to lack or excess of jurisdiction on Ombudsman pursuant to Sec 14 RA 6770.
the part of any branch or instrumentality of the The Court ruled that specific provision is
Government (Article VIII, Sec. 1, 1987 Constitution). unconstitutional. It held that the 1987 Constitution took
away the power of Congress to repeal, alter or
The judicial power shall be vested in one Supreme supplement rules concerning pleading, practice and
Court and in such other lower courts as may be procedure.
established by law (Art. VIII, Sec. 1, 1987 Constitution).
Power of the Supreme Court to amend and
Rule-Making Power of the Supreme Court suspend procedural rules
Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 1

When compelling reasons so warrant or when the interpretations, for example, it may take cognizance of
purpose of justice requires it = discretionary upon a petition for certiorari directly filed before it.
courts.
Doctrine of Non-interference or Doctrine of
Reasons that would warrant the suspension: Judicial Stability
1) the existence of special or compelling circumstances;
2) merits of the case; Courts of equal and coordinate jurisdiction cannot
3) caus e not entirely attributable to t he fault or interfere with each other’s orders. Thus, the RTC has
negligenc e of the party favored by the suspension of no power to nullify or enjoin t he enforcement of a writ of
rules possession issued by another RTC. The principle also
4) a lack of showing that the review sought is merely bars a court from reviewing or interfering with the
frivolous and dilatory; judgment of a co-equal court over which it has no
5) the other party will not be unjustly prejudiced thereby. appellate jurisdiction or power of review.
 Where substantial and important issues await This doctrine applies with equal forc e to administrative
resolution. bodies. When the law provides for an appeal from the
 When transcendental matters of life, liberty or decision of an administrative body to the SC or CA, it
state security are involved. means that such body is co-equal with the RTC and
 The constitutional power of the Supreme Court logically beyond the control of the latter.
to promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law J URISDICT ION
through the amendment of the Rules of Court.
Note: The rules may be relaxed so that the end of Jurisdiction is the power and authority of the
justice may be better served (Cruz v. CA 476 SCRA court to hear, try and decide a case.
581, 586). The Rules must not be applied rigidly so as
not to override substantial justice bec ause rules of
procedure must be used to facilitate, not frustrate C LASSIFICAT ION OF J URISDICT ION
substantial justice (Canton v. City of Cebu, 515 SCRA
441, 448).
Principle of Judicial Heirarchy Courts of Original and Appellate Jurisdiction
A court is one with original jurisdiction when actions or

This is an ordained sequenc e of recourse to courts
proceedings are originally filed with it. A court is one
vested with concurrent jurisdiction, beginning from the with appellate juris diction when it has the power of
lowest, on to the next highest and ultimately to the
review over the decisions or orders of a lower court.
highest. This hierarchy is determinative of the venue of
appeals, and is likewise determinative of the proper MeTCs, MCTCs and MTCs are c ourts of original
forum for petitions for extraordinary writs. This is an
jurisdiction without appellate jurisdiction. RTC is
established policy necessary to avoid inordinate
likewise a court of original jurisdiction with respect to
demands upon the Court’s time and attention which are cases originally filed with it; and appellate court with
better devoted to those matters within its exclusive
respect to cases decided by MTCs within its territorial
jurisdiction, and to preclude the further clogging of the
jurisdiction. (Sec. 22, BP 129).
Court’s docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII,
Constitution of the Philippines)
CA is primarily a court of appellate jurisdiction with
.
competence to review judgments of the RTCs and
A higher court will not entertain direct resort to it unless specified quasi-judicial agencies (S ec. 9[3], BP 129). It
the redress cannot be obtained in the appropriate
is also a court of original jurisdiction with respect to
courts. The SC is a court of last resort. It cannot and
cases filed before it involving issuance of writs of
should not be burdened with the task of deciding cases certiorari, mandamus, quo warranto, habeas corpus,
in the first instances. Its jurisdiction to issue
and prohibition. CA is a court of original and exclusive
extraordinary writs should be exercised only where
jurisdiction over actions for annulment of judgments of
absolutely necessary or where serious and important RTCs (Sec. 9 [1],[2], BP 129).
reasons exist.
The SC is fundamentally a court of appellate jurisdiction
The doctrine of hierarchy of courts may be disregarded but it may also be a court of original jurisdiction over
if warranted by the nature and import ance of the issues cases affecting ambassadors, public ministers and
raised in the interest of speedy justice and to avoid
consuls, and in cases involving petitions for certiorari,
future litigations, or in cases of national int erest and of prohibition and mandamus (Sec. 5[1], Art. VIII,
serious implications. Under the principle of liberal Constitution). The S upreme Court en banc is not an

appellate court to which decisions or resolutions of a interpretations, for example, it may take cognizance of
division of the Supreme Court may be appealed. a petition for certiorari directly filed before it.
Courts of General and Special Jurisdiction
Doctrine of Adherence of Jurisdiction
Courts of general jurisdiction are those with (Continuity of Jurisdiction)
competence to decide on their own jurisdiction and to
take cognizanc e of all cases, civil and criminal, of a Once a court has acquired jurisdiction, such jurisdiction
particular nature. Courts of special (limited) jurisdiction cannot be ousted by subsequent events although they
are t hose which have only a special jurisdiction for a be of a character which would have prevented
particular purpose or are clothed with special powers jurisdiction from attaching in the first instance. Once
for the performanc e of specified duties beyond which jurisdiction has been acquired, it continues until the
they have no authority of any kind. court finally disposes of t he case (Ramos v. Central
Bank of the Philippines, G.R. No. L-29352, October 4,
A court may also be considered general if it has the 1971).
competence to exercise juris diction over cases not
falling within the jurisdiction of any court, tribunal, General Rule: A law enacted during the pendency of a
person or body exercising judicial or quasi-judicial case which trans fers jurisdiction to another court does
functions. It is in the context that the RTC is considered not affect cases prior to its enactment.
a court of general jurisdiction.
Exceptions:
Courts of Exclusive and Concurrent 1. When the new law ex pressly provides for a
Jurisdiction retroactive application;
2. When the change of jurisdiction is curative in
Courts of exclusive juris diction are those confined t o a character.
particular court to the exclusion of other courts. Courts
of conc urrent jurisdiction are those that possessed by
the court together wit h another or other courts over the J URISDICT ION OF VARIO US
same subject matter. The court obtaining jurisdiction P HILIPPINE COURT S
first retains it to the exclusion of the others, but the
choice of the court is lodged in those persons duly
authorized to file the action (also referred to as Regular courts engaged in the administration of justice
confluent or coordinate jurisdiction). are organized into four (4) levels:
Doctrine of Hierarchy of Courts (a) First Level (MTCs, MeTCs, MCTCs) – which try and
decide
This is an ordained sequenc e of recourse to courts (1) Criminal actions involving:
vested with concurrent jurisdiction, beginning from the a. violations of city or municipal ordinances committed
lowest, on to the next highest and ultimately to the within their respective territorial jurisdiction; and
highest. This hierarchy is determinative of the venue of b. offenses punishable with imprisonment not
appeals, and is likewise determinative of the proper exceeding six (6) years irrespective of the amount of
forum for petitions for extraordinary writs. This is an fine and regardless of other imposable accessory or
established policy necessary to avoid inordinate other penalties, and
demands upon the Court’s time and attention which are
better devoted to those matters within its exclusive (2) Civil actions including EJE CTME NT CASES
jurisdiction, and to preclude the further clogging of the (FEUD) and recovery of personal property with a value
Court’s docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII, of not more than P300,000 outside MM or does not
Constitution of the Philippines) exceed P400,000 in MM;
.
A higher court will not entertain direct resort to it unless (b) Second Level (RTCs, Family Courts)
the redress cannot be obtained in the appropriate courts of general jurisdiction
courts. The SC is a court of last resort. It cannot and among the civil actions assigned to them by law
should not be burdened with the task of deciding cases are those in which the subject of litigation is:
in the first instances. Its jurisdiction to issue
extraordinary writs should be exercised only where a. actions incapable of pecuniary estimation
absolutely necessary or where serious and important b. actions involving title to or possession of real
reasons exist. property where the assessed value of the property
exceeds P20,000 outside MM or exceeds P50,000 in
The doctrine of hierarchy of courts may be disregarded MM.
if warranted by the nature and importance of the issues c. where the demand exclusive of interest, damages of
raised in the interest of speedy justice and to avoid what ever kind, attorney’s fees, litigation expenses, and
future litigations, or in cases of national int erest and of cost, or the value of the personal property or
serious implications. Under the principle of liberal

controversy exceeds P300,000 outside MM or exceeds

P400,000 in MM. a) from the RTC in all criminal cases involving offenses
exercise appellate jurisdiction for which the penalty is reclusion perpetua or life
- Review cases appealed from courts of the first imprisonment, and those involving ot her offenses which,
level. although not so punished, arose out of the same
- occurrence or which may have been committed by the
(c) Third Level (Court of Appeals, Sandiganbayan) accused on the same occasion;
b) Automatic review where death penalty is imposed.
CA is an appellate court c) By petition for review on Certiorari from the CA,
a. reviewing cases appealed to it from the RTC on Sandiganbayan and from the RTC where only error or
questions of fact or mixed questions of fact and law question of law is involved
b. decisions of t he RTC in the ex ercise of original
jurisdiction Note: In PP vs. Mateo (2004), the SC held that while
i. as a matter of right the Fundamental Law requires a mandat ory review by
ii. as a matter of discretion. the SC of cases where the penalty imposed is r eclusion
perpetua, life imprisonment or death, nowhere however,
Occasionally, CA may act as a trial court, as in has it proscribed an intermediate review. If only to
actions praying for the annulment of final and executory ensure utmost circumspection before the penalty of
judgments of RTCs on the ground of extrinsic fraud reclusion perpetua, life imprisonment or death is
subsequently discovered, against whic h no other imposed, the Court now deems it wise a nd compelling
remedies lies. to provide in these cases a review by the CA before the
case is elevated to the S C. A prior determination by the
Sandiganbayan has jurisdiction CA on, particularly, the factual issues, would minimize
the possibility of an error of judgment. If the CA should
over all criminal and civil cases involving affirm the penalty of reclusion perpetua, life
• graft and corrupt practices act imprisonment or death, it could t hen render judgment
• such other offenses committed by public imposing the corresponding penalty as the
officers and employees including those in GOCCs in circumstances so warrant, refrain from entering
relation to their office. judgment and elevate the entire records of t he case to
the SC for final disposition.
It also has exclusive appellate jurisdiction over
final judgments, resolutions, or orders of RTCs whether CIVIL CASES
in the exercise of their own original or appellate
jurisdiction over criminal and civil cases committed by E XCLUS IVE ORIGINAL JURIS DICTION in petitions for
public offic ers or employ ees including those in GOCCs certiorari, prohibition and mandamus against the CA,
in relation to their office. COMELEC, COA, CTA, Sandiganbayan
(d) Fourth Level (Supreme Court) CONCURRENT JURISDICTION
JURISDICTION OF THE SUPREME COURT 1) With Court of Appeals in petitions for certiorari,
prohibition and mandamus against the RTC, CSC,
Cent ral Board of Assessment Appeals, NLRC, Quasi-
CRIMINAL CASES judicial agencies, and writ of kalikasan, all subject to the
doctrine of hierarchy of courts.
EXCLUSIVE ORIGINAL JURISDICTION
2) With the CA and RTC in petitions for certiorari,
prohibition and mandamus against lower courts and
Petitions for certiorari, prohibition and mandamus bodies and in petitions for quo warrant o, and writs of
against CA and Sandiganbayan
habeas corpus, all subject to the doctrine of hierarchy
of courts.
CONCURRENT JURISDICTION 3) With CA, RTC and Sandiganbayan for petitions for
writs of amparo and habeas data
a) With the CA and RTC: petitions for certiorari, 4) Concurrent original juris diction with the RTC in cases
prohibition and mandamus against the MTC affecting ambassadors, public ministers and consuls.
b) With the CA: petitions for certiorari, prohibition and
mandamus against the RTC APPELLATE JURISDICTION
c) with Sandiganbayan: petitions for mandamus,
prohibition, certiorari, habeas corpus, injunction and
1) by way of petition for review on certiorari (appeal by
ancillary writs in aid of its appellate jurisdiction and over certiorari under Rule 45) against CA, Sandiganbayan,
petitions of similar nature, including quo warranto RTC on pure questions of law and CTA in its decisions
arising or that may arise in cases filed or which may be
rendered en banc.
filed. 2) in cases involving the constitutionality or validity of a
law or treaty, international or executive agreement, law,
APPELLATE JURISDICTION
presidential
decree, proclamation, order, instruction, ordinance or b) From the RTC where penalty imposed is
regulation, legality of a tax, impost, assessment, toll or reclusion perpetua or life imprisonment or
penalty, where a lesser penalty is imposed but for
jurisdiction of a lower court; and offenses committed on the same occasion or
3) all cases in which the jurisdiction of any court is in which arose out of the same occurrence that
issue; gave rise to the more serious offense for which
4) all cases in which an error or question of law is the penalty of death, reclusion perpetua or life
involved imprisonment is imposed (Sec. 3, Rule 122 as
Exceptions in which factual issues may be resolved by amended by AM No. 00-5-03-SC).
the Supreme Court:
a) When the findings are grounded entirely on  Automatic Review (i.e. no notice of appeal is
speculation, surmises or conjectures; necessary) from the RTC in cases wherein the death
b) When the inference made is manifestly penalty is imposed.
mistaken, absurd or impossible;  Petition for Review from the RTC in cases
c) When there is grave abuse of discretion; appealed
d) When the judgment is based on thereto from the lower courts and not appealable to
misapprehension of facts; the Sandiganbayan.
e) When the findings of facts are conflicting;
f) When in making its findings the CA went CIVIL CASES
beyond the issues of the case, or its findings
are contrary to the admissions of both the EXCLUSIVE ORIGINAL JURISDICTION
appellant and the appellee;
g) When the findings are contrary to the trial in actions for the annulment of the judgments of the
court; RTC.
h) When the findings are conclusions without
citation of specific evidence on which they are CONCURRENT ORIGINAL JURISDICTION
based;
i) When the facts set forth in the petition as well 1) With SC to issue writs of certiorari, prohibition and
as in the petitioner‘s main and reply briefs are mandamus against the RTC, CS C, CBAA, other quasi-
not disputed by the respondent; judicial agencies mentioned in Rule 43, and the NLRC
j) When the findings of fact are premis ed on the (however, this should be filed first with the CA as per St.
supposed abs ence of evidence and Martin Funeral Home
contradicted by the evidence on record; and case), and writ of kalikasan.
k) When the Court of Appeals manifestly 2) With the SC and RTC to issue writs of certiorari,
overlooked certain relevant facts not disputed prohibition and mandamus (CPM) against lower courts
by the parties, which, if properly conside red, and bodies and writs of quo warrant o, habeas corpus,
could justify a different conclusion. whet her or not in aid of its appellat e jurisdiction, and
writ of continuing mandamus on environmental cases.
JURISDICTION OF THE COURT OF APPEALS 3) With SC, RTC and Sandiganbayan for petition for
(69 Justices) writs of amparo and habeas data where the action
involves public data or government office
CRIMINAL CASES
EXCLUSIVE APPELLATE JURISDICTION
EXCLUSIVE ORIGINAL JURISDICTION
1) by way of ordinary appeal from the RTC and the
a) Actions for annulment of judgment of the RTCs Family Courts.
b) Crimes of Terrorism under Human Security Act of 2) by way of petition for review from the RTC rendered
2007 by the RTC in the exercise of its appellate jurisdiction.
3) by way of petition for review from the decisions,
CONCURRENT ORIGINAL JURISDICTION resolutions, orders or awards of the CS C, CBAA and
other bodies mentioned in Rule 43 and of the Office of
a) With the SC: petitions for certiorari, prohibition and the Ombudsman in administrative disciplinary cases.
mandamus against the RTC 4) over decisions of MTCs in cadastral or land
b) With the S C and RTC: petitions for certiorari, registration cases pursuant to its delegated jurisdiction;
prohibition and mandamus against the MTC this is because decisions of MTCs in these cases are
appealable in the same manner as decisions of RTCs.
APPELLATE JURISDICTION
 Note: There is no action to annul the decision
Notice of Appeal: of
a) From the RTC in the exercise of its original the CA.
jurisdiction, except those appealable to the
Sandiganbayan

JURISDICTION OF THE COURT OF TAX of charges and penalties claimed is less than P1M tried
APPEALS by the proper MTC, MeTC and RTC.
(UNDER RA 9282 AND RULE 5, AM 0511 07CTA)
EXCLUSIVE APPELLATE JURISDICTION
EXCLUSIVE ORIGINAL OR APPELLATE
JURISDICTION TO REVIEW BY APPEAL 1) In criminal offenses
a) over appeals from the judgment, res olutions
1) Decisions of CIR in cases involving disputed or orders of the RTC in tax cases originally
assessments, refunds of internal revenue t axes, fees or decided by them, in their respective territorial
other charges, penalties in relation thereto, or other jurisdiction, and
matters arising under t he NIRC or other laws b) over petitions for review of the judgments,
administered by BIR; resolutions or orders of t he RTC in the exercise
2) Inaction by CIR in cases involving disputed of their appellate jurisdiction over tax cases
assessments, refunds of IR taxes, fees or other originally decided by the MeTCs, MTCs, and
charges, penalties in relation thereto, or other matters MCTCs in their respective jurisdiction.
arising under the NIRC or other laws administered by 2) In tax collection cases
BIR, where t he NIRC or other applicable law provides a a) over appeals from the judgments, resolutions
specific period of action, in which case the inaction shall or orders of the RTC in tax collection cases
be deemed an implied denial; originally decided by them in t heir respective
3) Decisions, orders or resolutions of the RTCs in local territorial jurisdiction; and
taxes originally decided or resolved by them in the b) over petitions for review of the judgments
exercise of their original or appellate jurisdiction; resolutions or orders of t he RTC in the exercise
4) Decisions of the Commissioner of Customs of their appellate jurisdiction over tax collection
a. in cases involving liability for customs duties, cases originally decided by the MeTCs, MTCs
fees or other charges, seizure, detention or and MCTCs in their respective jurisdiction.
release of property affected, fines, forfeitures or
other penalties in relation thereto, or JURISDICTION OF THE SANDIGANBAYAN
b. other matters arising under the Customs law
or other laws, part of laws or special laws ORIGINAL JURISDICTION in all cases involving
administered by BOC;
5) Decisions of the Central B oard of Assessment 1) Violations of RA 3019 (Anti-Graft and Corrupt
Appeals in the exercise of its appellate jurisdiction over Practices Act)
cases involving the assessment and taxation of real 2) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act)
property originally decided by the provincial or city 3) Sequestration cases (E.O. Nos. 1,2,14,14-A)
board of assessment appeals; 4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RP C)
6) Decision of the secretary of Finance on customs where one or more of the principal accused are
cases elevat ed to him aut omatically for review from occupying the following positions in the government,
decisions of the Commissioner of Customs which are whet her in permanent, acting or int erim capacity at the
adverse to the government under Sec. 2315 of the time of the commission of the offense:
Tariff and Customs Code; a) Officials of t he exec utive branch occupying
7) Decisions of Secretary of Trade and Industry in the the positions of regional director and higher,
case of non-agricultural product, commodity or article, otherwise classified as Grade 27 and higher, of
and t he Sec retary of Agriculture in the case of the Compensation and Position Classification
agricultural product, commodity or article, involving Act of 1989 (RA 6758)
dumping duties and counterveiling duties under Secs. b) Members of Congress and officials thereof
301 and 302, respectively, of the Tariff and Customs classified as G-27 and up under RA 6758
Code, and safeguard measures under RA 8800, where c) Members of the Judiciary without prejudice
either party may appeal the decision to impose or not to to the provisions of the Constitution
impose said duties. d) Chairmen and Members of the Constitutional
Commissions without prejudice t o the
EXCLUSIVE ORIGINAL JURISDICTION provisions of the Constitution
e) All ot her national and local officials classified
1) Over all criminal cases arising from violation of the as Grade 27 and higher under RA 6758
NIRC and the TCC and ot her laws, part of laws, or f) Other offenses or felonies committed by the
special laws administered by the BIR or the BOC where public officials and employees mentioned in
the principal amount of t axes and fees, exclusive of Sec. 4(a) of RA 7975 as amended by RA 8249
charges and penalties claimed is less than P1M or in relation to their office
where there is no specified amount claimed (the g) Civil and c riminal cas es filed pursuant to and
offenses or penalties shall be tried by the regular courts in connection with E O Nos. 1, 2, 14-A (S ec. 4,
and the jurisdiction of the CTA shall be appellate); RA8249)
2) In tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties  Note: Without the office, the crime cannot be
where the principal amount of taxes and fees, exclusive committed.
 2) Title t o, possession of, or interest in, real property

APPELLATE JURISDICTION - from the RTC in cases with assessed value exceeding P20,000 outside Metro
under PD 1606, as amended by PD 1861, whether or Manila, or exceeds P50,000 in Metro Manila
not 3) If the amount involved exceeds P300,000 outside
the cases were decided b them in the exercise of their MM or exceeds P400,000 in MM in the following cases:
original or appellate jurisdictions. a) Admiralty and maritime cases
b) Matters of Probate (testate and intestate)
CONCURRENT ORIGINAL JURISDICTION WITH c) Other actions involving personal property
SC, CA AND RTC for petitions for writs of habeas data d) Demand for money
and amparo 4) Cases not falling within t he jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-
 The requisites that the offender the offender judicial functions (general jurisdiction of RTC)
occupies salary Grade 27 and the offense must 5) All actions involving the contract of marriage and
be intimately connected with the official function family relations
must concur for the SB to have jurisdiction –
Justice Magdangal De Leon JURISDICTION OF FAMILY COURTS (RA 8369)
JURISDICTION OF THE REGIONAL TRIAL a) Petitions for guardianship, custody of

COURTS children and habeas corpus involving children
b) Petitions for adoption of children and the
CRIMINAL CASES revocation thereof
c) Complaints for annulment of marriage,
EXCLUSIVE ORIGINAL JURISDICTION declaration of nullity of marriage and those
relating to status and property relations of
1) Offenses punishable with imprisonment which husband and wife or those living together under
exceeds 6 years imprisonment different status and agreements, and petitions
2) Offenses not within the exclusive jurisdiction of any for dissolution of conjugal partnership of gains
court, tribunal or body, except those falling under the d) Petitions for support and/or acknowledgment
exclusive jurisdiction of the Sandiganbayan e) Summary judicial proceedings brought under
the provisions of EO 209 (Family Code)
 Note: In cases where the only penalty is fine, f) Petitions for declaration of status of children
the amount thereof shall determine jurisdiction. as abandoned, dependent or neglected
If the amount exceeds P4,000, the RTC has children, petitions for voluntary or involuntary
jurisdiction. commitment of children, the suspension,
termination or restoration of parental authority
3) Family Court – Criminal Cases and ot her cases cognizable under PD 603, EO
a) One or more of the accused is/are below 18 56 (1986) and other related laws
years old but not less than 9 years old; g) Petitions for the constitution of the family
b) Where one of the victims is a minor at the home
time of the commission of the offense;  In areas where there are no Family
c) Cases against minors cognizable under the Courts, the above-enumerated cases
Dangerous Drugs Act; shall be adjudicat ed by the RTC
d) Violations of RA 7610, otherwise known as (RA8369)
the “Special Protection of Children Against 6) To hear and decide intra-corporate controversies
Child Abuse, Exploitation and Sec. 52, Securities and Regulations Code):
Discrimination Act” as amended by RA 7658; a) Cases involving devises or schemes
and employed by or any acts, of the board of
e) Cas es of domestic violation against women directors, business associates, its officers or
and their children. partnership, amounting to fraud and
misrepresent ation which may be detrimental to
APPELLATE JURISDICTION the interest of the public and/or of
 All cases decided by the MTC in their the stockholders, partners, members of
respective territorial jurisdiction. associations or organizations registered with
the SEC
CIVIL CASES b) Controversies arising out of intra -corporate
or partnership relations, between and among
EXCLUSIVE ORIGINAL JURISDICTION stockholders, members or associates; between
any or all of them and the corporation,
1) The action is incapable of pecuniary estimation (such partnership or association of which they are
as rescission of contract, action to revive judgment, stockholders, members or associates,
declaratory relief (1st part), support, expropriation) respectively; and between suc h corporation,
partnership or association and the state insofar

as it concerns their individual franchise or right which is not a special commercial court. It was
to exist as such entity dismissed by Branch 276 for lack of jurisdiction.
c) Controversies in the election or It was ruled that from the time of filing, the RTC
appointments of directors, trustees, officers or acquired jurisdiction over the subject matter or the
managers of such corporations, partnerships or nature of the action. The erroneous raffling is only a
associations matter of proc edure which is an incident related to the
d) Petitions of corporations, partnerships or exercise of jurisdiction and thus, should not negate the
associations to be declared in the state of jurisdiction which the RTC of Muntinlupa City had
suspension of payments in cases where the already acquired.
corporation, partnership of association
possesses sufficient property to cover all its JURISDICTION OF METROPOLITAN TRIAL
debts but fores ees the impossibility of meeting COURTS/MUNICIPAL TRIAL COURTS
them when they respectively fall due or in
cases where the corporation, partnership of CRIMINAL CASES
association has no sufficient assets to cover its
liabilities, but is under the management of a EXCLUSIVE ORIGINAL JURISDICTION
Rehabilitation Receiver or Management
Committee. 1) Cases covered by Summary proceedings
a) Violations of city or municipal ordinances
Note: In Garcia v. Drilon (G.R. No. 179267, June including traffic laws
25,2013), private res pondent claimed that she is a b) Violation of rental law
victim of physical abuse, emotional, psychological and c) Violation of traffic laws, rules and regulations
economic violence as a result of marital infidelity on the d) Violation of BP 22 (Bouncing Check Law)
part of her husband. On appeal, petitioner argues that effective April 15, 2003
the Family Court has limited aut hority and jurisdiction to e) All other criminal cases where the penalty is
decide the constitutionality of RA 9262. imprisonment not exceeding 6 months and/or
The Court held that the RTC have jurisdiction to resolve P100,000 fine irrespective of other penalties
the constitutionality of statute, this being an authority arising therefrom
embraced in the general definition of the judicial power 2) offenses punishable with imprisonment not
to determine what are the valid and binding laws by exceeding six (6) years irrespective of the amount of
criterion of their conformity to the fundamental law. fine, and regardless of other imposable accessory or
other penalties, including the civil liability arising from
CONCURRENT JURISDICTION such offenses or predicated thereon, irrespective of the
kind, nature, value or amount thereof; provided
1) with the Supreme Court in actions affecting however, that in offens es involving damage to property
ambassadors, other public ministers and consuls through criminal negligence, they shall have exclusive
2) with the SC and CA in petitions for certiorari, original jurisdiction thereof (Sec. 2, RA 7691).
prohibition and mandamus against lower courts and 3) Offenses involving DAMAGE TO PROPERTY
bodies in petitions for quo warranto, habeas corpus, through CRIMINA L NEGLIGENCE where the
and writ of continuing mandamus on imposable fine is not exceeding P10,000
environmental cases
3) with the SC, CA and Sandigabayan in petitions for  Note: In cases where the only penalty is fine,
writs of habeas data and amparo the amount thereof shall determine jurisdiction.
4) With Insurance Commissioner – claims not If the amount does not exceed P4,000, the
exceeding P100,000 MTC has jurisdiction.
4) All offenses (except violations of RA 3019, RA 1379
APPELLATE JURISDICTION over cases decided by and Arts. 210 to 212, RP C) committed by public officers
lower courts in their respective territorial jurisdictions and employees in relation to their office, including those
except decisions of lower courts in the exercise of employed in GOCCs, and by private individuals
delegated jurisdiction. charged as co-principals, accom plices or accessories,
punishable with imprisonment of not more than 6 years
SPECIAL JURIS DICTION – SC may designate certain OR where none of the accused holds a position of
branches of RTC to try exclusively criminal cases, salary Grade 27 and higher.
juvenile and domestic relations cases, agrarian cases,
urban land reform cases not falling within the CIVIL ACTIONS
jurisdiction of any quasi-judicial body and other special
cases in the interest of justice. EXCLUSIVE ORIGINAL JURISDICTION
Note: In Gonzales v GJH Land (G.R. No. 202664, 1) If the amount involved does not exceed P300,000
November 20, 2015), Gonzales filed before the RTC outside MM or does not exceed P400,000 in MM in the
Muntinlupa City complaint for injunction against GJH following cases:
seeking to enjoin the sale of GJH shares which they a) Actions involving personal property
purportedly bought. The case was raffled to Branch 276
b) Probate P roceeding (testate and intestate) over cont ested lots, the value of which does not exceed
based on gross value of the estate PHP 100,000. Thus, MTC has jurisdiction because the
c) Admiralty and maritime cases jurisdiction is determined not by the selling price but by
d) Demand for money the assessed value.
 Note: Do not include Interest, Damages of In Sebastian v. Lagmay (G.R.No. 164594 April
what ever kind, Attorney’s fees, Litigation 22, 2015), the parties entered into amicable settlement
Expenses, and Costs (IDALE C). However, in before the barangay justice. However, the barangay
cases where the claim or damages is the main failed to enforce the kasunduan. Lagmay filed wit h the
cause of action, or one of the causes of action, MCTC a motion for execution of kasunduan. Petitioner
the amount of such claim shall be considered in contends that the MCTC does not have jurisdiction over
determining the jurisdiction of the court. the case since the subject of the kasunduan is in
2) Actions involving title to, or possession of, real excess of MCTC’s jurisdictional amount.
property, or any interest therein where the assessed The Court ruled that MCTC has the authority and
value of the property or interest therein does not jurisdiction to enforce the kasunduan regardless of the
exceed P20,000 outside MM or does not exceed amount involved.
P50,000 in MM
3) Inclusion and exclusion of voters SHAR’IAH COURTS
4) Those governed by the Rules on Summary
Procedure EXCLUSIVE JURISDICTION
a) Forcible entry and unlawful detainer (FEUD)
 With jurisdiction to resolve issue of 1) All cases involving custody, guardianship, legitimacy,
ownership to determine ONLY issue of paternity and filiation arising under the Code of Muslim
possession (provisional only) Personal Laws;
 Irrespective of t he amount of damages or 2) All cases involving disposition, distribution and
unpaid rentals sought to be recover settlement of estate of deceased Muslims, probate of
 Where attorney’s fees are awarded, the wills, issuance of letters of administration of
same shall not exceed P20,000 appointment administrators or exec utors regardless of
b) Other civil cases, except probate proceeding, the nature or aggregate value of the property;
where the total amount of the plaintiff’s claim does 3) Petitions for the declaration of absence and death for
not exceed P200,000 in MM, exclusive of interests the cancellation and correction of entries in the Muslim
and costs. Registries;
4) All actions arising from the customary contracts in
SPECIAL JURISDICTION over petition for writ of which the parties are Muslims, if they have not specified
habeas corpus OR application for bail in criminal cases which law shall govern their relations; and
in the absence of all RTC judges in the province or city 5) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus and all other auxiliary writs
DELEGA TE D JURISDICTION to hear and decide and processes in aid of its appellate jurisdiction
cadastral and land registration cases where there is no
controversy over the land or in case of contested lands, CONCURRENT JURISDICTION
the value does not exceed P100, 000 = appealable to
the CA 1) Petitions of Muslim for the constitution of the family
st
home, change of name and commitment of an insane
1 level courts: person to an asylum
a. Metropolitan Trial Court – Metro Manila; 2) All other personal and legal actions not mentioned in
b. Municipal Trial Courts in Cities – situated in par 1 (d) wherein the parties involved are Muslims
cities except those for forcible entry and unlawful detainer,
c. Municipal Circuit Trial Court – composed of which shall fall under the exclusive juris diction of the
multi-sala MTC.
d. Municipal Trial Courts – in one municipality 3) All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
Note: In Republic v Bantigue Point (G.R. No.162322 involved belongs exclusively to Muslims Cases that can
March 14, 2012), respondent filed with the RTC an be files:
application for original registration of title over a parcel 1) Offenses defined and punished under PD
of land wit h an assessed value of Php 14,920 for the 1083
entire property. The RTC clerk of court transmitted 2) Disputes relating to:
motu proprio the records of the case to MTC. Petitioner a. Marriage
posits that MTC has no jurisdiction because the selling b. Divorce
price of the property based on the deed of sale c. Betrothal or breach of contract to
annexed to respondent’s application was Php 160,000. marry
The Court ruled that MTC has delegated jurisdiction in d. Customary dowry (mahr)
cadastral and land registration in two instances: first,
where there is no controversy or opposition or second,
e. Disposition and distribution of CRIMINAL CASES

property upon divorce
f. Maintenance and support and 1) Violations of traffic law, rules and regulations;
consolatory gifts (mut’a) 2) Violation of the rental law;
g. Restitution of marital rights 3) All other criminal cases where the penalty prescribed
3) Disputes relative to communal properties is imprisonment not exceeding six (6) months, or fine
not exceeding P1,000, or both, irrespective of other
Note: In Villagracia v. Fifth Sharia District Court imposable penalties, accessory or otherwise, or of the
(G.R.No. 188832 April 23, 2014), private respondent civil liability arising therefrom, provided, that in offenses
alleged that the petitioner occupied parcel of land involving damage to property through criminal
covered by his TCT. He filed an action to rec over the negligenc e, RSP shall govern where the imposable fine
possession of the parcel of land to Fifth Sharia district does not exceed P10,000.
Court. Petitioner argued that Sharia has no jurisdiction
to take cognizance of real actions where not both the  RSP does not apply to a civil case where the
parties involved are Muslims. plaintiff‘s cause of action is pleaded in the
The Court ruled that when it became apparent that the same complaint with another cause of action
petitioner is not a Muslim, The Fifth Sharia District subject to the ordinary procedure; nor to a
Court should have motu proprio dismissed the case. criminal case where the offense charged is
Cons equently, respondent had no authority under the necessarily related to another criminal case
law to decide private res pondent’s action because not subject to the ordinary procedure.
all of the parties involved in the action are Muslims.
CASES COVERED BY THE RULES ON
JURISDICTION OVER SMALL CLAIMS BARANGAY CONCILIATION
1) MTCs, MeTCs and MCTCs shall have jurisdiction The Lupon of eac h barangay shall have the authority to
over actions for payment of money where the value of bring together the parties actually residing in the same
the claim does not exceed P400,000 exclusive of municipality or city for amicable settlement of all
interest and costs (Sec. 2, AM 08-8-7-S C, April 1, 2019, disputes except:
as amended). 1) Where one party is the government or any
2) Actions covered are subdivision or instrumentality thereof
a) purely civil in nature where t he claim or relief 2) Where one party is a public officer or
prayed for by the plaintiff is solely for payment or employee, and the dispute relates to the
reimbursement of sum of money, and performance of his official functions
b) the ci vil aspect of criminal actions, either filed
3) Offenses punishable by imprisonment
before the institution of the criminal action, or
reserved upon the filing of the criminal action in court, exceeding one (1) year or a fine exceeding
pursuant to Rule 111 (Sec. 4, AM 08-8-7-SC). P5,000
4) Offenses where there is no private offended
These claims may be: party 5) Where the disput e involves real
a) For money owed under the contracts of lease, properties located in different cities or
loan, services, sale, or mortgage; municipalities unless the parties thereto agree
b) For damages arising from fault or negligence, to submit their differenc es to amicable
quasi-contract, or contract; and settlement by an appropriate lupon
c) The enforcement of a barangay amicable
6) Disputes involving parties who actually
settlement or an arbitration award involving a money
claim pursuant to Sec. 417 of RA 7160 (LGC). 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
CASES COVERED BY RULES ON SUMMARY
settlement by an appropriate lupon
PROCEDURE (SEC. 1 RSP)
7) Such other classes of disputes which the
President may determine in the interest of
CIVIL CASES
justice or upon the recommendation of the
Secretary of Justice
1) All cases of forcible ent ry and unlawful detainer
8) Any complaint by or against corporations,
(FEUD), irrespective of the amount of damages or
partnerships, or juridical entities. The reason is
unpaid rentals sought to be recovered. Where
that only individuals shall be parties to
attorney‘s fees are awarded, the same shall not exceed
barangay conciliation proceedings either as
P20,000;
complainants or respondents
2) All other cases, except probate proceedings where
9) Disputes where urgent legal action is
the total amount of the plaintiff‘s claim does not exceed
necessary to prevent injustice from being
P100,000 (outside MM) or P200,000 (in MM), exclusive
committed or further continued, specifically:
of interest and costs.
a) A criminal case where the accused is under
police custody or detention

b) A petition for habeas corpus by a person 3. Compromise (Kaisahan ng mga Manggagawa sa La

illegally detained or deprived of his liberty or Campana v. De Los Angeles, G.R. No. L-30798,
one acting in his behalf November 26, 1970);
c) Actions coupled with provisional remedies, 4. Agreement of the parties; or
such as preliminary injunction, attachment, 5. Acquiescence of the court (Republic of the
replevin and support pendente lite Philippines v. Estipular, G.R. No. 136588, July 20,
d) Where the action may be barred by statute 2000).
of limitation
10) Labor disputes or controversies arising Exception: Estoppel by laches (Tijam v. Sibonghanoy,
from employer-employee relationship G.R. No. L-21450, April 15, 1968).
11) Where the dispute arises from the CARL
12) Actions to annul judgment upon a Note: The reason for this exception is that a party who
compromise which can be directly filed in court. has invoked t he jurisdiction of the court over a
particular matter to secure affirmative relief cannot be
 It is a condition precedent under Rule 16; can permitted to afterwards deny that same jurisdiction to
be dismissed but without prejudice escape liability. However, the Tijam ruling still remains
to be an exception to the general rule that a court’s lack
TOTALITY RULE of jurisdiction may be raised at any stage of the
proceedings even on appeal.
Where there are several claims or causes of actions
between the same or different parties, embodied in the The general rule should be, as it has always been, that
same complaint, the amount of the demand s hall be the the issue of jurisdiction may be raised at any stage of
totality of the claims in all the claims of action,
the proceedings, even on appeal, and is not lost by
irrespective of whether the causes of action arose out of
the same or different transactions (Sec. 33[1], BP 129). waiver or by estoppel. Estoppel by laches, to bar a
litigant from asserting the court’s absence or lack of
jurisdiction, only supervenes in exceptional cases
Aspects of jurisdiction similar to the factual milieu of Tijam (Figueroa v. People
of the Philippines, G.R. No. 147406, July 14, 2008).
1. Jurisdiction over the subject matter – a matter of
Estoppel, being in the nature of forfeiture, is not favored
substantive law because it is conferred by law.
by law. It is to be applied rarely—only from necessity,
2. Jurisdiction over the parties – not a matter of
and only in extraordinary circumstances. The doctrine
substantive law. This is covered by the rule on
must be applied with great care and the equity must be
summons, in case of a defendant.
strong in its favor. When misapplied, the doctrine of
3. Jurisdiction over the issues – not a matter of
estoppel may be a most effective weapon for the
substantive law. This is governed by the rule on
accomplishment of injustice (Figueroa v. People,
pleadings.
supra).
4. Jurisdiction over the res – not a matter of substantive
law. This may be governed by the rule on attachment.
The jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action
Jurisdiction over the subject matter (People of the Philippines v. Paderna, L -28518, Jan.
29, 1968) unless such statute provides for its
Concept: Jurisdiction over the subject matter is the retroactive application, as where it is a curative
power to hear and determine cases of the general class legislation (Atlas Fertilizer Corp. v. Navarro, G.R.
to which the proceedings in question belong and is 72074, April 30, 1987).
conferred by the sovereign aut hority which organizes
the court and defines its powers (Reyes v. Diaz, G.R. How jurisdiction is determined
No. L-48754, November 26, 1941). It is the jurisdiction
of the court over the nature of the action. General Rule: Jurisdiction over the subject matter is
determined by the allegations of the complaint
How jurisdiction i s conferred: Jurisdiction over the regardless of whether or not the plaintiff is entitled to
subject matter is conferred by the Constitution or by the claims asserted therein (Sunny Motors Sales, Inc. v.
law. Nothing can change the jurisdiction of the court Court of Appeals, G. R. No. 119900, August 16, 2001).
over the subject matter. That power is a matter of It is not determined by:
legislative enactment which none but the legislature 1. The defenses in the answer or motion to dismiss
may change (Zamora v. Court of A ppeals, supra). It is (Exception: defense of tenancy – the court does not
not conferred by: automatically lose jurisdiction over ejectment cases
1. A court’s unilateral assumption of jurisdiction by the mere allegation of the defense of tenancy.
(Tolentino v. Social Securit y Commission, G.R. No. L- There must first be a reception of evidence and, if
28870, September 6, 1985); after hearing, tenancy had in fact been shown to be
2. Cont ract (Luna v. Carandang, G.R. No. L-27145, the real issue, the court should dismiss the case for
November 29, 1968); lack of jurisdiction); or

2. By the evidence in the trial; or pleadings present the issues to be tried and determine
3. Consent or agreement of the parties; or whet her these are of fact or of law (61A Am. Jur. 2d,
4. By estoppel (Tolentino v. Court of Appeals, G.R. No. Pleading, §1, 1981). Jurisdiction over the issues may
123445, October 6, 1997). also be conferred by:
1. Stipulations of parties (e.g. in the pre-trial) (Rule 18);
Motu proprio di smi ssal of the ca se by the court: or
Under Sec. 1 of Rule 9, when it appears from the 2. By waiver or failure to object to the presentation of
pleading or the evidence on rec ord that the court has evidence on a matter not raised in the pleadings (Sec.
no jurisdiction over the subject matter, the court shall 5, Rule 10).
dismiss the same.
Issue
A party may object to the jurisdiction of the court in a An issue is a disputed point or question to which parties
motion to dismiss or as an affirmative defense in the
to an action have narrowed down their several
answer (Rule 16).
allegations and upon which they are desirous of
obtaining a decision (Black ’s Law Dictionary, 5th ed.,
Jurisdiction over the parties
745).
Jurisdiction over the parties is the legal power of the
court to render personal judgment against a party to an An issue is generally acquired in civil cases after the
action or proceeding (Black ’s Law Dictionary, 5th ed., defendant files an answer joining the issues involved in
767). the case.
Juri sdiction over the plaintiff: Jurisdiction over the Jurisdiction over the res or property in
plaintiff is acquired by the plaintiff’s filing of the litigation
complaint or petition or other initiatory pleading. By
doing so, he submits himself to the jurisdiction of the Concept: Jurisdiction over the res refers to the court’s
court (Davao Light & Power Co. Inc v. Court of Appeals, jurisdiction over the thing or the property under litigation
G.R. No. 93262, December 29, 1991).
(Perk ins v. Dizon, G.R. No. 46631, November 16, 1939).
Juri sdiction over the defendant: Jurisdiction over the
Jurisdiction over the res is acquired either by the
defendant is acquired:
1. Upon service on him of coercive process in the seizure of the property under legal process, whereby it
manner provided by law (service of summons). If the is brought into actual custody of the law; or as a result
defendant was never served with summons, any of the institution of legal proc eedings, in which the
judgment rendered by the court will not bind him.; or power of the court is recognized and made effective
2. By his voluntary submission to the jurisdiction of the (Macahilig v. Heirs of Grace M. Magalit, G.R. No.
court. The defendant’s voluntary appearance in the 141423, November 15, 2000).
action shall be equivalent to service of summons.
Such voluntary appearance is one that seeks It is sometimes a substitute for jurisdiction over the
affirmative relief except when the relief sought is for person. There are instances when the court cannot
the purpose of objecting to the jurisdiction of the court acquire jurisdiction over the defendant like when he is
over the person of the defendant. abroad. But if the court acquires jurisdiction over the res,
the case may go on.
Examples of voluntary appearance:
a. By filing an answer; or
If t he action is in rem or quasi in rem, jurisdiction over
b. By filing a motion to dismiss, except when the
defendant also raises the issue of lack of the person of the defendant is not necessary;
jurisdiction over his person (Sec. 20, Rule 14). jurisdiction over the res is required although summons
must also be served in order to satisfy the requirements
Juri sdiction over the defendant: The jurisdiction over of due process.
the defendant can be acquired by:
1. Waiver; Jurisdiction Exercise of
2. Consent; or Jurisdiction
3. Lack of objection by the defendant. The aut hority to hear and Where there is
decide a case. jurisdiction over the
Jurisdiction over the issues person and subject
matter, the resolution of
Concept: It refers to the power of the court to try and all other questions
decide the issues raised in the pleadings of the parties arising in the case is but
(Reyes v. Diaz, supra). It is generally conferred and an exercise of
determined by the pleadings of the parties. The jurisdiction.

Error of Jurisdiction Error of Judgment determine the hours at which the witnesses and
When a court takes When a court acquires lawyers may be heard, direct the disposition of money
cognizance of a case jurisdiction over the deposited in court in the course of the proceedings,
over the subject matter of subject matter, the appoint a receiver and grant an injunction, attachment
or garnishment.
which it has no decision or order on all
jurisdiction, the court other questions arising
commits an error of in the case is but an Residual Jurisdiction
jurisdiction. exercise of jurisdiction;
errors which the court It is the jurisdiction left to be exercised by the trial court
may commit in the after the case has been appealed to a higher court.
exercise of such (See Rules 41 and 42).
jurisdiction are merely
Delegated jurisdiction of inferior courts: Under Sec.
errors of judgment.
34 of B.P. Blg. 129, inferior courts can try land
Reviewable by certiorari. Reviewable by appeal.
registration and cadastral cases regardless of value if
If there is a total want of When the court has
the case is uncontested, or if contested, the value of the
jurisdiction, the jurisdiction, a wrong
lots should not exceed, PhP100,000.
proceeding is an absolut e decision is not void. The
nullity, confers no right judgment cannot be Special jurisdiction of inferior courts: Inferior court
and affords no protection considered a nullity and judges, in the absence of RTC judges, may hear and
and will be pronounced therefore cannot be decide petitions for a writ of habeas corpus or
void when collaterally collaterally impeached. applications for bail in criminal cases.
attacked. Such is binding on the
parties unless reversed Distinctions between a court and a judge
or annulled.
Court Judge
A tribunal officially The judge is the
Courts of Record assembled under authority person or officer who
of law and has a presides over a court.
Those whose proceedings are enrolled and which are personality separate and
bound to keep a written record of all trials and distinct from the judge who
proceedings handled by them. R.A. No. 6031 mandates sits therein.
all Municipal Trial Courts to be courts of record. This A court is a being in A judge is a physical
finds significance when the case is appealed whereby a imagination comparable to person.
superior court reviews the case through the records. a corporation.
The court is an office. The judge is a public
officer.
O T HER P RINCIPLES The existence of the court The judge shall have
is continuous. It will such powers only as
Exclusionary Principle continue to exist and its he continues to
The court first acquiring jurisdiction excludes all others. proceedings will remain occupy the office. The
effective despite the death, judge may resign,
Doctrine of Primary Jurisdiction resignation, or cessation become
Under this doctrine, courts will not resolve a from the service of the incapacitated, or be
controversy involving a question which is within the judge presiding over it. disqualified to hold
jurisdiction of an administrative tribunal, especially office.
where the question demands the exercise of sound
administrative discretion requiring the special
knowledge and experience of said tribunal in
determining technical and intricate matters of fact
(Villaflor v. Court of Appeals, G.R. No. 95694, October
8, 1997).
Doctrine of Ancillary Jurisdiction

It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its
primary jurisdiction.
Under its ancillary jurisdiction, a court may determine all

questions relative to the matters brought before it,
regulate the manner in which a trial shall be conducted,

C IVIL PROCEDURE
RULE 1-71
RULE 1 SECTION 3. CASES GOVERNED

G ENERAL P RINCIPLES Action Claim
An ordinary suit in a A right possessed by
SECTION 1. TITLE OF THE RULES court of justice. one against another.
One party prosecutes The moment said claim
The Rules of Court do not have retroactive effect another for the is filed before a court,
(Bermejo v. Barrios, G.R. No. L-23614, February 27, enforcement or the claim is convert ed
1970). They can, however, be made applicable to protection of a right or into an action or suit.
cases pending at the time of their passage and the prevention or
therefore are retroactive in that sense. redress of a wrong.
The rule-making power of the Supreme Court has the Applicability: An action is the legal and formal demand
following limitations: of one’s right from another person made and insisted
1. Simplified and inexpensive procedure for t he speedy upon in a court of justice (Bouvier’s Law Dictionary, vol.
th
disposition of cases; 1, 8 ed., p. 128; Words and Phrases, vol. 2, 25).
2. Uniform for all courts of the same grade; and
3. Shall not diminish, increase or modify substantive Civil Action
rights (Sec. 5[5], Art. VIII, 1987 Constitution). One by which a party sues another for the enforc ement
or prot ection of a right or the prevention or redress of a
wrong.
The Supreme Court has the constitutional power to
promulgate rules concerning pleading, practice and A civil action may either be:
procedure (Sec. 5[5], Art. VIII, 1987 Constitution). a. Ordinary, or
b. Special
The Supreme Court has the power to amend, repeal or Both are governed by the rules for ordinary civil actions,
even establish new rules for a more simplified and subject to the specific rules prescribed for a s pecial civil
inexpensive process, and the speedy disposition of action.
cases. The constitutional power of the SC to
promulgate rules of practice and procedure and to Criminal Action
amend or repeal the same necessarily carries with it the One by which the State prosecutes a person for an act
power to overturn judicial precedents on points of or omission punishable by law.
remedial law through the amendment of the Rules of
Court. Special Proceedings
A remedy by which a party seeks to establish a status,
Unlike the 1935 and 1973 Constitutions, which a right, or a particular fact (SRP).
empowered Congress to repeal, alter or supplement the
rules of the S upreme Court concerning pleading,
practice and procedure, the 1987 Constitution rem oved Classification of actions
this power from Congress. Hence, the Supreme Court
now has the sole aut hority to promulgate rules A. As to nature
concerning pleading, practice and procedure in all Ordinary Civil Action Special Civil Action
courts (In Re: Petition for Recognition of the Exemption Governed by ordinary Also governed by
of the Government Service Insurance S ystem from rules. ordinary rules but
Payment of Legal Fees, A.M. No. 08-2-01-0, February subject to specific rules
11, 2010). prescribed (Rules 62 to
71).
SECTION 2. IN WHAT COURTS APPLICABLE
Formal demand of Special features not
one’s legal rights in a found in ordinary civil
The Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court. court of justice in the actions.
manner prescribed by
the court or by the
law.

B. As to object estate. contract.

Action in Action Quasi in
Action in Rem It is local It is transitory The rules on
Personam Rem
because its because its venue of real
Directed Directed against Directed against venue depends venue actions shall
against the specific persons. particular persons. upon the depends upon govern.
thing itself. The location of the the residence
defendant is property in the of the plaintiff
sought to be litigation. or the
held liable. defendant at
Jurisdiction Jurisdiction over Jurisdiction over the option of
over the the person of the the person of the the plaintiff.
person of the defendant is defendant is not e.g. Accion e.g. Action for e.g. Accion
defendant is required. required as long reinvindicatoria a sum of publiciana with a
not required. as jurisdiction money claim for
over the res is damages
acquired.
A proceeding An action to A proceeding to The distinction is significant in determining the venue of
to determine impose a subject the an action.
the state or responsibility or interest of a
condition of a liability upon a named defendant
thing. person directly. over a particular Note: An action could be real as to cause and in
property to an personam as to object (e.g., action to recover a piece of
obligation or lien land). An action could also be pers onal as to cause and
burdening it. in rem as to object (e.g., action for annulment of
Judgment is Judgment is Judgment is marriage).
binding on the binding only binding upon
whole world. upon parties particular persons.
impleaded or D. As to the place of filing
their successors Local Action Transitory Action
in interest.
Must be brought in a Dependent on t he place
e.g. Probate e.g. Action for e.g. Action for particular place where where t he party resides
proceeding; specific partition; action to the subject property or regardless of where the
cadastral performance; foreclose real a portion thereof is cause of action arose
proceeding. action for breach estate mortgage. located, unless there subject to Sec. 4, Rule 4.
of contract. is an agreement to the
contrary (Sec. 4, Rule
4).
The distinction between Actions in rem, in personam
e.g. Action to recover e.g. Action to recover
and quasi in rem is important in determining the
real property sum of money
following:
1. Whether or not jurisdiction over the person of the
defendant is required; Note: If the action is founded on privity of contract
2. To determine the type of summons to be employed; between t he parties, then the action, whether debt or
and covenant, is transitory. But if there is no privity of
3. To determine upon whom upon whom judgment is contract and the action is founded on privity of estate
binding. only, such as a covenant that runs with the land in the
hands of the remote grant ees, then the action is local
C. As to cause and must be brought in the place wherein the land lies
Personal (Paper Industries Corporation of the Philippines v.
Real Action Mixed Action
Action Samson, G.R. No. L-30175, November 28, 1975).
Ownership or Personal Both real and
possession of property is personal Actions incapable of pecuniary estimation
real property is sought to be properties are
involved. recovered or involved. An action capable of pecuniary estimation is one
where wherein the action is brought primarily for the recovery
damages for of a sum of money; and the amount of the claim shall
breach of determine where the jurisdiction lies.
contract are
sought. An action incapable of pecuniary estimation is one
Founded on Founded on Founded on both. wherein the basic issue is something other than the
privity of real privity of right to recover a sum of money, or where the money

claim is purely incidental to, or a consequence of, the action. Where the filing of t he initiat ory pleading is not
principal relief sought; and are cognizable exclusively accompanied by payment of the docket fee, the court
by Regional Trial Courts (Davao Light and Power Co., may allow payment of the fee within the reasonable
Inc. v. Hon. Judge of the RTC Davao City, BR. 8, G.R. time but in no case beyond the applicable prescriptive
No. 147058, March 10, 2006). period.
b. The same rule applies to permissive counterclaims,
Examples: third-party claims and similar pleadings which shall
not be c onsidered filed until and unless the filing fee
a. Specific Performance; prescribed therefor is paid.
b. Rescission; c. Where the trial court acquires jurisdiction over a claim
c. Support; by the filing of the appropriate pleading and payment
d. Foreclosure of Mortgage; of the prescribed filing fee, but subsequently, the
e. Injunction etc. judgment awards a claim not specified in the pleading,
or if specified, the same has been left for
determination by the court, the additional filing fee
SECTION 4. IN WHAT CASES NOT therefor shall constitute a lien on the judgment.
APPLICABLE
Not applicable in: (NICOLE) The amount of damages should be specified not only in
1. Naturalization; the body of the pleading but also in the prayer.
2. Insolvency proceedings;
3. Cadastral cases; If the complete amount of the docket fee is not paid, the
4. Other cases not provided in the Rules of Court; prescriptive period continues to run as the complaint is
5. Land registration; deemed not filed (Feria, Civil Procedure Annotated,
6. Election Cases. 2001 ed., p. 208).
Exception: The Rules of Court are applicable to the An action can be commenced by filing the complaint by
above cases by analogy or in a suppletory character registered mail. In which case, it is the dat e of mailing
and whenever practicable and convenient. that is considered as the date of filing and not the date
of the receipt thereof by the clerk of court.
SECTION 5. COMMENCEMENT OF ACTION
This provision assumes significance especially where SECTION 6. CONSTRUCTION

prescription is raised as a defense against the claim of
the plaintiff in the complaint. General Rule: Liberal construction.
A civil action is commenced by: Exceptions:

1. Reglementary periods
1. The filing of t he complaint (When an additional 2. Rule on forum shopping
defendant is impleaded in a later pleading, the action 3. Service of summons
is commenced with regard to him on the date of the
filing of such later pleading); and 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
Note: Civil actions are deemed commenc ed from the when the purpose of justice requires it.
date of t he filing and docketing of the complaint,
without taking into account the issuance and service Reasons which would warrant the suspension of
of summons (Cabrera v. Tiano, G. R. No. L-17299, the rules
July 31, 1963). 1. Most persuasive and weighty reasons;
2. To relieve a litigant from an injustice not
2. The payment of docket fees (Determined not only by commensurate with his failure to comply with the
the amount of the claim but also by the amount of prescribed procedure;
damages). 3. Good faith of the defaulting party by immediately
paying within a reas onable time from the time of the
default;
In Sun Insurance Office, Ltd. v. Asuncion (G.R. Nos.
4. The existence of special or compelling
79937-38, February 13, 1989) the Supreme Court laid circumstances;
down the following rules: 5. The merits of the case;
a. It is not simply the filing of the complaint or 6. A cause not entirely attributable to the fault or
negligenc e of a party favored by the suspension of
appropriate initiatory pleading but also the payment of
rules;
the prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the 7. A lack of any showing that the review sought is
merely frivolous and dilatory;

8. The other party will not be unjustly prejudiced Injury

thereby;
9. Fraud, accident, mistake or excusable negligence It is the illegal invasion of a legal right.
without appellant’s fault;
10. Peculiar legal and equitable circumstances Damage
attendant to each case;
11. In the name of substantial justice and fair play; It is the loss, hurt, or harm which results from the injury.
12. Importance of the issues involved; and Is it necessary that the plaintiff wait for the actual
13. Exercise of sound discretion by the judge violation of hi s right before he can file a complaint
guided by all the attendant circumstances (Labao v. in court? No. Under Sec. 3, Rule 1, “A civil action is
Flores, et al., G.R. No. 187984, November 10, one by whic h a party sues another for the enforc ement
2010). or prot ection of a right or the prevention or redress of a
wrong.”
RULE 2 Right of Action
C AUSE OF ACT ION It is procedural in character and is the consequence of
the violation of the right of the plaintiff. It is the right of a
person to commence and prosecute an action to obtain
SECTION 1. ORDINARY CIVIL ACTIONS, the relief sought.
BASIS OF Requisites:
E very ordinary civil action must be based on a cause of 1. There must be a good cause (The existence of a
action. cause of action);
2. A compliance with all the conditions precedent to the
SECTION 2. CAUSE OF ACTION, DEFINED
bringing of the action; and
Cause of Action 3. The action must be instituted by the proper party.
It is the act or omission by which a party violates a right

of another. Cause of Action Right of Action
Delict or wrongful act or Remedial right or right to
Elements of a cause of action: omission committed by relief granted by law to a
the defendant in violation party to institute an action
1. The existence of a legal right of the plaintiff;
of the primary rights of the against a person who has
2. A correlative obligation of the defendant to respect
plaintiff. committed a delict or
plaintiff’s right; and
wrong against him.
3. An act or omission of t he defendant in violation of the
plaintiff’s legal right. The reason for the action. The remedy or means
afforded or the
consequent relief.
A single act or omission can be violative of various The formal statement of The remedial right given
rights but where there is only one delict or wrong, there the operative facts that to a person becaus e of
is but a single cause of action regardless of the number gives rise to remedial the occurrence of the
of rights violated. right. alleged facts.
The mere existence of a cause of action is not sufficient A matter of right and A matter of proc edure and
depends on substantive depends on the pleadings
for a complaint to prosper.
law. filed by the parties.
The sufficiency of the statement of t he caus e of action Not affected by affirmative Affected by affirmative
must appear on the face of the complaint and its defenses (fraud, defenses.
existence may be determined only by the allegations of prescription, estoppel,
the complaint, consideration of other facts being etc.).
proscribed and any attempt to prove extraneous
circumstances not being allowed (Viewmaster
Construction Corp. v. Roxas, G.R. No. 133576, July 13,
2000).
Test of sufficiency of a cause of action: Whether or

not admitting the facts alleged, the court could render a
valid judgment in accordance with the prayer of the
complaint.

Relief Remedy Subject Matter Splitting of single cause of action

It is the act of dividing a single or indivisible cause of
The redress, The procedure The thing, action into several parts or claims and bringing several
protection, or appropriate wrongful act, actions thereon. It is not allowed.
award or legal form of contract or
coercive relief of action property which Purpose of prohibition:
measure which which may be is directly To avoid the following:
the plaintiff availed of by involved in the 1. Multiplicity of suits;
prays the court the plaintiff as action, 2. Conflicting decisions; and
to render in his the means to concerning 3. Unnecessary vexation and harassment of
favor as obtain the which the defendants.
consequence of desired relief. wrong has Applies not only to complaints but also to counterclaims
the delict been done and and cross-claims.
committed by with respect to
the defendant. which the Remedies against splitting a single cause of action
controversy has A. Motion to dismiss on the ground of:
arisen.
1. Litis pendentia (Sec. 1[e], Rule 16); or
2. Res judicata (Sec. 1[f], Rule 16).
Difference between an action from a cause of
action: An action is the suit filed in court for the
enforcement or prot ection of a right, or the prevention Note: Litis pendentia and forum shopping have
or redress of a wrong. A cause of action is the basis of similar elements, so it is best for the counsel to move
the action filed (Riano, Civil Procedure, 2009 Edition, for the dismissal based on forum shopping under Sec.
p.88). 5, Rule 7 and show that the party or his counsel
willfully and deliberately resorted to forum shopping
Caus e of action is an “the act or omission by which a
because t he effect is a dismissal with prejudice in
party violates a right of anot her. ” The caus e of action in
addition to the sanction for direct contempt as well as
Civil Case No. 276 and Civil Case No. 573 is the sale of
the entire subject property by Basilia, et al., to a cause for administrative sanctions.
petitioners without respondent’s knowledge and B. An answer alleging either of the
consent, henc e, depriving respondent of her rights and aforementioned grounds a s affirmative defense
interests over her pro-indiviso share in the subject
(Rule 16, Sec. 6).
property as a co-heir and co-owner. The annulment of
the sale of respondent‟s share in t he subject property,
the legal redemption by respondent of her co-heirs‟ Rules in determining the singleness of a cause of
share sold to petitioners, and the claim for damages action
should not be mistaken to be the causes of action, but General Rule: A contract embraces only one cause of
they were the remedies and reliefs prayed for by the action even if it contains several stipulations (Quiogue,
respondent to redress the wrong allegedly committed et al., v. Bautista, et al., G.R. No. L-13159, February 28,
against her. Hence the withdrawal by respondent of his
1962).
appeal from the RTC decision in CC 276 (which did not
grant redemption to respondent ) with the result that the Exception: A contract to do several things at several
judgment therein bec ame final and executory precluded times is divisible, and judgment for a single breach of a
the respondent from filing CC 573 for legal redemption continuing contract is not a bar to a suit for a
since the latter was barred by res judicata. (Selga v. subsequent breach (e.g. promissory note payable in
Brar, 21 September 2011).
several installments so long as there is no acceleration
Compulsory heir has cause of action to declare clause) (Blossom & Co., Inc. v. Manila Gas, G.R. No. L-
marriage void. (Garcia-Quiazon v. Belen, 31 July 2013). 32958, November 8, 1930).
Exception to the exception: All obligations which

Caus e of action against father’s debt is the same
have matured at the time of the suit must be integrated
against son who promised to pay father’s debt in his
behalf. (Marilag v. Martinez, 22 July 2015,). as one cause of action in one complaint, and those not
so included would be barred (Larena v. Villanueva, G.
SECTION 3. ONE SUIT FOR A SINGLE CAUSE R. No. L-29155, November 5, 1928).
OF ACTION Doctrine of Anticipatory Breach
A party may not institute more than one suit for a single
cause of action. An unqualified and positive refusal to perform a contract,
though the performance thereof is not yet due, may, if
SECTION 4. SPLITTING A SINGLE CAUSE OF the renunciation goes into the whole contract, be
ACTION, EFFECT OF treated as a complete breach which will entitle the

injured party to bring his action at once (Blossom & Co. of whether the causes of action arose out of the same
v. Manila Gas Corp., No. 32958, November 8, 1930). or different transaction (Sec. 33, B.P. 129).
The rule against splitting of a cause of action applies Determination of jurisdictional amount in relation to
only where the action is bet ween the same parties the totality rule
(Itogon Suoc Mines, Inc. v. Sangil-Itogon Work er’s
Union, G.R. No. L-24189, August 30, 1968). Under B.P. Blg. 129, as amended, and under R.A. No.
7691, the jurisdictional amount excludes the following
(IDALec):
Stipulations allowing splitting cause of action
a. Interest
The stipulation that allows the filing of the complaint b. Damages of whatever kind
base on the same cause of action is invalid for being c. Attorney’s fees
repugnant to our public policy. (Riviera v. CCA G.R.No. d. Litigation expenses and costs
173793 June 17, 2015)
SECTION 5. JOINDER OF CAUSES OF ACTION These matters, however, shall be included in

determining the filing fees (Riano, p. 179).
Joinder of Causes of Action
It is the assertion of as many causes of action as a “Damages of whatever kind” applies to cases where the
party may have against anot her in one pleading alone. damages are merely incidental to or consequence of
It is purely permissive. The plaintiff can always file the main cause of action (Adm. Circ. No. 09-94, June
separate actions for each cause of action. 14, 1994). Thus, if the main cause of action is the
recovery of damages, the amount of damages should
Alternative Joinder not be excluded in determining the jurisdictional amount
It exists when the cause of action is against either one (Sante v. Claravall, G.R. 173915, February 22, 2010).
or the other defendant. One is not seeking relief from
both but from either one.
Note: We will follow the tot ality rule in BP 129 because
Cumulative Joinder it is elementary in statutory construction that in case of
Cumulative joinder exists when one is seeking relief for conflict, substantive law prevails over procedural laws.
all of his causes of action.
Splitting of Cause of Joinder of Causes of
Requisites for joinder of causes of action: Action Action
1. The party joining the causes of action must comply
with the rules on joinder of parties. There is a single cause Cont emplates several
of action. causes of action.
Note: The following are the elements for a joinder of
parties (Sec. 6, Rule 3): Prohibited. Encouraged.
a. A right to relief in respect to or arising out of t he It causes multiplicity of It minimizes multiplicity of
same transaction or series of transactions; and suits and double vexation suits and inconvenience
b. A common question of law or fact. on the part of the on the parties.
defendant.
2. The joinder shall not include special civil actions or
actions governed by special rules;
3. Where the causes of action are between the same SECTION 6. MISJOINDER OF CAUSES OF
parties but pertain to different venues or jurisdictions, ACTION
jurisdiction is with the Regional Trial Court, provided
that: There is a misjoinder when two or more causes of
a. One of the causes of action falls within the action were joined in one complaint when they should
jurisdiction of the RTC; and not be so joined. This is not a ground for dismissal of an
b. The venue lies thereon. action. A misjoined cause of action may be severed and
4. Where the claims in the causes of action are proceeded with separately by filing a motion in relation
principally for recovery of money, the aggregate thereto.
amount claimed shall be t he test of jurisdiction
(Totality Rule). There is no sanction against non-joinder of separate
causes of action.
Totality Rule
Where there are several claims or causes of actions Non-joinder of causes of action is when such cause/s of
between the same or different parties, embodied in the actions should be joined.
same complaint, the amount of the demand shall be the
totality of the claims in all causes of action, irrespective An action for partition cannot be joined with an action
for rescission of donation intervivos. An action for

partition is a special civil action governed by rule 69 of 3. If the plaintiff has capacity to sue but not the real
the Rules of Court while an action for rescission is an party-in-interest, the ground for dismissal is a failure
ordinary civil actioned governed by ordinary rules of to state a cause of action (Riano, p. 213).
civil procedure. (A da v B aylon G.R.No. 182435 August
13, 2012) Lack of Legal Capacity Lack of Legal
To Sue Personality To Sue
RULE 3 It refers to a plaintiff’s The plaintiff is not the

general disability to sue, real party-in-interest.
P ART IES T O C IVIL ACT ION such as on account of
minority, insanity,
incompet ence, lack of
SECTION 1. WHO MAY BE PARTIES; juridical personality or any
PLAINTIFF AND DEFENDANT other general
disqualifications of a
Requirements for a person to be a party to a civil party.
action: It can be a ground for a It can be used as a
1. He must be either: motion to dismiss on the ground for a motion to
a. A natural ground of lack of legal dismiss based on the
b. A juridical person, or capacity to sue. fact that the complaint,
c. An entity authorized by law on the face thereof,
2. He must have the legal capacity to sue; states no cause of
3. He must be the real party-in-interest. action.
One need not be a nat ural or a juridical person to be a
party to a civil action. As long as an entity is authorized Plaintiff
by law to be a party, such entity may sue, be sued or The party having an interest in the matter of the action
both (Riano, p.212). or in obtaining the relief demanded. The term may refer
to the claiming party, the counter-claimant, the cross-
Note: Entities authorized by law to be parties to a suit claimant, or the third (fourth, etc.)-party plaintiff.
include:
1. The estate of a deceased person (Nazareno v. Court Defendant
of Appeals, G.R. No. 138842, October 18, 2000); The party claiming an interest in the controversy or the
2. Corporations by estoppel (S ec. 21, B.P. Blg. 68, subject thereof adverse t o the plaintiff. The term may
Corporation Code); also include:
3. Partnership by estoppel; 1. An unwilling co-plaintiff or one who should be joined
4. A political party incorporated under Act 1459 (now as plaintiff but refuses to give his consent thereto
B.P. Blg. 68, Corporation Code); (Sec. 10, Rule 3);
5. A registered labor union (Sec. 243, P.D. No. 442, 2. The original plaintiff bec oming a defendant to original
Labor Code), with respect to its property; defendant’s counterclaim; and
6. A partnership having a capital of three thousand 3. One necessary to a complete determination or
pesos (P3,000) or more but which fails to comply with settlement of the questions involved therein.
the registration requirements is nevertheless liable as
a partnership to third person (A rt. 1772, Civil Code of SECTION 2. PARTIES IN INTEREST
the Philippines);
7. As to properties of the Roman Catholic Church, the Real Party-in-Interest
Archbishop of the diocese t o which they belong may It is the party who stands to be benefited or injured by
be a party (Versoza v. Fernandez, G.R. No. L-25254, the judgment in the suit or the party entitled to the
November 22, 1926); avails of the suit.
8. A dissolved corporation may prosec ute and defend
suits by or against it provided that the suits: a) occur Note: To be a real party-in-interest, the interest must be
within 3 years after its dissolution; and b) the suits are ‘real’, which is a present substantial interest as
in connection with the settlement and closure of its distinguished from a mere expectancy or a fut ure,
affairs (Sec. 122, Corporation Code). contingent subordinate or consequential interest. It is
an interest that is material and direct, as distinguished
Remedies when a party is not authorized to be a from a mere incidental interest in the question
party: (Samaniego v. Aguila, G.R. No. 125567, June 27,
1. A motion to dismiss may be filed on t he ground that 2000).
the plaintiff has no legal capacity to sue;
2. Where it is the defendant who is not authorized, the In Oposa v. Factoran (G. R. No. 101083, July 30, 1993),
complaint may be dismissed on the ground that the minors represented by their parents were held as real
pleading states no cause of action or failure to state a parties in interest to file an action to annul timber
cause of action;

licenses issued by the state under the following Classification of parties in interest
principles: 1. Indispens able parties – those without whom no final
a. Inter-generational responsibility; determination can be had of an action. A joinder of an
b. Inter-generational justice; indispensable party is mandatory.
c. The right of the Filipinos to a balanced and healthful 2. Necessary parties – those who are not indispensable
ecology; and but ought to be joined as parties if complete relief is
d. Minors represent themselves and the generation to to be accorded as to those already parties, or for a
come. complete determination or settlement of the claim
subject of the action (may or may not be joined).
In an action for declaration of nullity of a free patent by
a private person who alleges prior ownership of the
property covered thereby, it is the private pers on and Indispensable Parties Necessary Parties
not the State who is the real party-in- interest. This
should be distinguished from a reversion cas e wherein Must be joined under any Should be joined
the purpose is to revest title in the State not a private and all conditions, their whenever possible; the
person. (Soquillo v. Tortola, 23 July 2012). presence being a action can proceed even
condition sine qua non for in their absence.
The action for reconveyance should have been brought the exercise of judicial
against the registered owner Emmanuel and not his power.
mother Carmencita. The lower courts justified the filing No valid judgment if The case may be
of the action against Carmencita on the ground that she indispensable party is not determined in court but
was the attorney-in-fact of Emmanuel. E ven assuming joined. the judgment therein will
that Carmencita was Emmanuel‟s attorney -in-fact, the not res olve the entire
real party in interest was still Emmanuel who should controversy if a
have been impleaded in the complaint pursuant to S3 necessary party is not
R3. Hence the action failed to state a cause of action joined.
and must be dismissed. (Guizano v. Veneracion, 12
They are those with such They are those whose
September 2012).
an interest that a final presence is necessary to
decree would necessarily adjudicate the whole
Travel agent cannot sue in its own name to recover
affect either right so that controversy but whose
value of unused tickets which it had bought in behalf of
the court cannot proceed interests are so far
airplane passengers. (V-Gent, Inc. v. Morning Star
without their presence. separable that a final
Travel & Tours, 22 July 2015,).
decree can be made in
their absence without
Grandchildren are not real parties-in-interest to file
affecting them.
nullification of sale of their grandfather‟s lot on claim of
alleged forgery. (Ang v. Pacunio, 8 July 2015).
3. Representative parties – those acting in fiduciary
The Rules of Court requires that an action must be capacity such as trustees, guardians, executors, or
brought in the name but not necessarily by the real administrators. The beneficiary shall be included in
party-in-interest. In fact, the practice is for an attorney- the title of the case and shall be deemed to be the
in-fact to bring the action in the name of the plaintiff real party in interest.
(Tuas on v. Bolanos, G.R. No. L-25894, January 30, 4. Pro forma parties – those who are required to be
1971). joined as co-parties in suits by or against another
party as may be provided by the applicable
Reason: To know the real party-in-interest. substantive law or procedural rule such as in the case
of spouses under Sec. 4.
General Rule: Only parties to a contract may sue. 5. Quasi parties – those in whose behalf a class or
representative suit is brought.
Exceptions:
1. A beneficiary of a stipulation pour autrui may demand Note: In a suit against the co-owners of JD Grains
its fulfillment (Art. 1311, Civil Code of the Philippines); Cent er, the daught er Ang and the mother Deyto, the
2. Those who are not principally or subsidiarily obligated daughter is an indispensable party. Hence summons by
in the contract, in which they had no intervention, publication should be made upon her if she could no
may show their detriment that could result from it, i.e. longer be located. Otherwise the case cannot proceed.
a creditor who is not a party to a contract can sue to (Pua v. Deyto, 26 November 2012)
rescind the contract to redress the fraud committed
upon him (Art. 1318, Civil Code). In an action for t he cancellation of memorandum
annotated at the back of a certificate of title, the
Locus Standi persons considered as indispensable include those
It is the right of appearance in a court of justice on a whos e liens appear as annotations pursuant to Section
given question. 108 of P.D. No. 1529 (Crisologo v JEWM Agro-
Industrial Corp., 3 March 2014).

SECTION 6. PERMISSIVE JOINDER OF

In an action for cancellation of a loan contract entered PARTIES
into between a municipality and the Land Bank, filed by
a taxpayer against LBP and the municipal officers, the Permissive joinder: The rule on permissive joinder of
municipality itself is an indispensable party. Hence all parties is that they can be joined in a single complaint
decisions up to SC were set aside and case remanded or may themselves maintain or be sued in separate
to RTC for disposition on the merits. (LBP v Cacayuran, suits. Normally, joinder of parties is permissive.
22 April 2015).
Requisites: (CAP)
In an action for cancellation of a trans fer certificate of 1. There is a question of law or fact common to all the
title, the RD is merely a nominal not an indispensable plaintiffs or defendants;
party. (De Leon v. Chu, 2 Sep 2015). 2. Right to relief arises out of the same transaction or
series of transactions; and
Dismissal of a petition under Rule 42 on the ground that 3. Such joinder is not otherwise proscribed by the
the notice of death was belatedly filed by counsel was provisions of the Rules on jurisdiction and venue.
uncalled for. The same is a ground not for the dismissal
of the case but for disciplinary proceedings against the Series of Transactions
counsel. The CA should have ordered the It pertains to transactions connected with the same
representatives to appear and be substituted rather subject matter of the suit.
than perfunctorily dismissing the case purs uant to S 16
R3. (Regalado v. Regalado, 6 June 2011). SECTION 7. COMPULSORY JOINDER OF
INDISPENSABLE PARTIES
SECTION 3. REPRESENTATIVES AS PARTIES The indispensable party must always be included in the
A represent ative may be a trustee of an express trust, a suit. The presenc e of all indispensable parties is a
guardian, an executor or administrat or or a party condition sine qua non for the exercise of judicial
authorized by law or the Rules of Court. power. In the absence of such party, the court should
order that the indispensable party be included. It shall
Where the action is allowed to be prosecuted or not order the dismissal of the suit outright.
defended by a repres entative or someone acting in a
fiduciary capacity, the beneficiary shall be included in Where the indispensable party is not impleaded or is
the title of the case and shall be deemed to be the real not before the court, an outright dismissal is not the
party-in-interest. remedy. Rather, the court shall order such party to be
impleaded. It is when the order of t he court to implead
An agent may sue or be sued without joining his an indispensable party goes unheeded may the case
principal except when the contract involves things be dismissed.
belonging to the principal.
Effect of the failure to join indispensable parties:
SECTION 4. SPOUSES AS PARTIES The absence of an indispensable party renders all
subsequent actuations of the court null and void for
General Rule: Husband and wife shall sue or be sued want of authority to act not only as to the absent parties
jointly. but even as to those present.
Exceptions (Under the Family Code): SECTION 8. NECESSARY PARTY

1. A spouse without just cause abandons the other or Also called proper parties, they are those whose
fails to comply with his or her obligations to the family presence is necessary to adjudicate the whole
with respect to the marital, parental or property controversy, but those interests are so far separable
relations. that a final decree can be made in their absence
2. A spouse of age mortgages, encumbers, alienates or without affecting them (Quisumbing v. Court of Appeals,
otherwise disposes of his or her exclusive property. G.R. No. 93335, September 13, 1990).
3. The regime of separation of property governs the
property relations of the spouses (Feria, p. 231). The non-inclusion of a necessary party does not
prevent the court from proceeding with the action and
SECTION 5. MINOR OR INCOMPETENT the judgment therein shall be without prejudice to the
Under the present rules, a suit may be brought by or rights of such necessary party not impleaded.
against a minor or incompetent but with the assistance
of his parents or his guardian. Illustrations:
A person need not be judicially declared incompet ent, it 1. A joint debtor is an indispensable party in a suit
being sufficient that his incompetency be alleged in the against him but a necessary party in a suit against his
corresponding pleadings. co-debtor.

2. In a suit brought by a creditor against one solidary Note: An action does not become a class suit merely
debtor, the other solidary debtor is neither because it is designated as such in the pleadings.
indispensable nor a necessary party. Whether the suit is or is not a class suit depends upon
the attending facts.
SECTION 9. NON-JOINDER OF NECESSARY Requisites of a class suit (CNSB)

PARTIES TO BE PLEADED 1. Subject matter of the controversy is one of common
or general interest to many persons;
Duty of a pleader whenever a necessary party i s not 2. The persons are so numerous that it is impracticable
joined or impleaded: to join them all as parties;
1. State the name of the necessary party, if known; and 3. Parties bringing the class suit are sufficient in number
2. State why said necessary party is omitted in the and representative of the class and can fully protect
pleading. the interests of all concerned;
4. The representative sues or defends for the benefit of
Should the court find the reason for the omission all.
unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained by ordering plaintiff to file an amended Note: A taxpayer’s suit or a stockholder’s derivative suit
complaint impleading the necessary party therein as co- is in the nature of a class suit, although subject to the
defendant. other requisites of the corresponding governing law
especially on the issue of locus standi (Regalado
Note: The failure to comply with the court’s order to Remedial Law Compendium, Vol. 1, 2010 ed., p. 97).
include or join a necessary party without justifiable
cause shall be deemed a waiver of t he claim against Any party in interest shall have the right to intervene to
such party. protect his individual interest (This is an instance when
a person may intervene as a matter of right).
SECTION 10. UNWILLING CO-PLAINTIFF
If the consent of any party who should be joined as
plaintiff cannot be obtained, he may be made a Permissive Joinder of
Class Suit
defendant and the reason therefore shall be stated in Parties
the complaint. There is one single There are multiple
cause of action causes of action
SECTION 11. MISJOINDER AND NON-JOINDER pertaining to numerous separately belonging t o
OF PARTIES persons. several persons.
A party is misjoined when he is made a party to the
action although he should not be impleaded. SECTION 13. ALTERNATIVE DEFENDANTS
A party is not joined when he is supposed to be joined Where the plaintiff is uncertain against who of several
but is not impleaded in the action (Riano, p. 229). persons he is entitled to relief, he may join any or all of
them in the alternative, although a right to relief against
Neither misjoinder nor non-joinder of parties is a ground one may be inconsistent with a right to relief against the
for dismissal of the action. other.
Exception: S ec. 7, Rule 3 in relation to the Example: Assume Mr. X, a pedestrian was injured in
disobedience to the rules or order of the court for the the collision of two vehicles. He suffered injuries but
inclusion of an indispensable party. does not know with c ertainty which vehicle caused the
mishap. What should Mr. X do if he wants to sue?
Note: Objections to defects in parties should be made
at the earliest opportunity, i.e., the moment such defect Answer: He should sue the vehicle drivers or owners in
becomes apparent, by a motion to strike the names of the alternative (Riano, p. 228).
the parties impleaded. Objections to misjoinder cannot
be raised for the first time on appeal. SECTION 14. UNKNOWN IDENTITY OR NAME
OF DEFENDANT
SECTION 12. CLASS SUIT
Requisites:
Class Suit 1. There is a defendant;
It is an action where one or more may sue for the 2. His identity or name is unknown;
benefit of all, implying that if the parties are numerous 3. Fictitious name may be used because of ignorance of
and it is impracticable to bring them to court, one or defendant’s true name and s aid ignorance is alleged
more may sue for their benefit. in the complaint;
4. Identifying description may be used: sued as
unknown owner, heir, devisee, or other designation;

5. Amendment to the pleading when identity or true the court will order the opposing party to procure the
name is discovered; and appointment of an executor or administrator for the
6. Defendant is the defendant being sued, not a mere estate of the deceased. In case of minor heirs, the court
additional defendant. may appoint a guardian ad litem for them.
Service of summons upon a defendant whose identity is The substitute defendant need not be s ummoned. The
unknown may be made by publication in a newspaper order of substitution shall be served upon the parties
of general circulation in accordance with Sec. 14 of substituted for the court to acquire jurisdiction over the
Rule 14. substitute party.
SECTION 15. ENTITY WITHOUT JURIDICAL If there is notice of death, the court should await
PERSONALITY AS DEFENDANT appointment of legal representative; otherwise,
subsequent proceedings are void (Herrera, Remedial
Requisites: (TED) Law Vol.1, p.399).
1. There are two or more persons not organized as a
juridical entity; Note: If the action does not survive (like purely
2. They enter into a transaction; and personal actions of support, annulment of marriage and
3. A wrong or delict is committed against a third person legal separation), the court shall simply dismiss the
in the course of such transaction. case. Substitution will not be required (Riano, p. 200).
Persons associated in an entity without juridical Action for specific performance to compel defendant to
personality may be sued under the name by which they execute a deed of sale over land is a real action which
are generally or commonly known, but they cannot sue is not extinguished by the death of the defendant.
under such name. In the answer of such defendant, the (Pacific Rehouse Corp. v. Ngo, 12 April 2016).
names and addresses of the persons composing s aid
entity must all be revealed. Rules in ca se s where the action survive s the death
of a party
The service of summons may be effected upon all the 1. Contractual Money Claim
defendants by serving upon any of them, or upon the a. Plaintiff dies
person in charge of the office or place of business The case will continue and the heirs or legal
maintained under such name (Sec. 8, Rule 14). representatives will proceed.
b. Defendant dies
INSTANCES WHERE S UBSTITUTION OF P ARTIES i. Before entry of final judgment – the case shall
IS PROPER not be dismissed but shall be allowed to
continue until entry of final judgment (Sec. 20,
A. SECTION 16. DEATH OF PARTY; DUTY Rule 3).
OF COUNSEL ii. After entry of final judgment but before
Where t he claim is not extinguished by the death of the execution – all claims against the decedent,
litigant, it shall be the duty of his counsel to inform the whet her due, not due, or contingent, must be
court of such fact within 30 days from such death and filed within the time limited in the notice as a
to give the name and address of the legal claim against the estate (Sec. 5, Rule 86). The
representative. plaintiff cannot move to execute under Rule 39.
iii. After levy or execution but before auction sale –
In such case, the heirs may be substituted for the the property actually levied may be sol d for the
deceased or if no legal repres entative is named, the satisfaction of the judgment obligation (S ec. 7[c],
court will order the opposing party to procure the Rule 39).
appointment of an executor or administrator for the
estate of the deceas ed. In case of minor heirs, the court 2. Non-Contractual Money Claim – These claims are
may appoint a guardian ad litem for them. those mentioned in Sec. 7, Rule 86 and Sec. 1, Rule
87. - Apply substitution.
This provision applies where the claim is not
extinguished as in cases involving property and B. SECTION 17. DEATH OR SEPARATION
property rights such as: OF A PARTY WHO IS A PUBLIC OFFICER
1. Recovery of real and personal property against the
estate; Requisites:
2. Enforcement of liens on such properties; or 1. Public officer is a party to an action in his official
3. Recovery for an injury to pers on or property by capacity;
reason of tort or delict committed by the deceased. 2. During t he pendency of the action, he either dies,
resigns, or otherwise ceases to hold office;
3. It is satisfactorily shown to the court by any party,
In this case, the heirs will be substituted for the within 30 days aft er the successor takes office, that
deceased or if no legal representative is named then

there is a substantial need for continuing or claim against the estate of the decedent without need of
maintaining the action; proving the claim.
4. That the successor adopts or continues or t hreatens
to adopt or continue the action of his predecessor; SECTION 21. INDIGENT PARTY
and
5. The party or officer affected has been given Indigent
reasonable notice of the application therefor and Refers to one who has no money or property sufficient
accorded an opportunity to be heard. and available for food, shelter, and basic necessities.
C. SECTION 18. INCOMPETENCY OR The applicant need not be a pauper; the fact that he is
INCAPACITY able-bodied and may earn the necessary money is no
In case a party becomes incompetent or incapacitated, answer to his statement that he has not sufficient
the action survives and may be continued by or against means to prosec ute the action or to secure the costs
the incompetent or incapacitated assisted by his legal (Acar, et al., v. Rosal, G.R. No. L-21707, March 18,
guardian or guardian ad litem, who is his legal 1967).
representative.
While the authority to litigate as an indigent party may
D. SECTION 19. TRANSFER OF INTEREST be granted upon an ex parte application and hearing, it
The trans fer of interest that is referred to in this section may be c ontested by the adverse party at any time
is a transfer that occurs during the pendency of the before judgment is rendered.
action. The transferor would no longer be the real party -
in-interest if the trans fer is made before the If one is authorized to litigate as an indigent, such
commencement of the suit. authority shall include:
1. An exemption from the payment of docket fees; and
General rule: The rule does not consider the transferee 2. An exemption from the payment of transcript of
an indis pensable party. Hence, the action may proceed stenographic notes.
without the need to implead him.
The amount of the docket and other lawful fees which
Exception: When the substitution by or joinder of the the indigent was exempt ed from paying shall be a lien
transferee is ordered by court. on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
A transferee pendente lite:
1. Stands in exactly the same position as its Note: A certificate of indigency must be attached to the
predecessor-in-interest, the original defendant; and pleadings issued either by the Barangay in which the
2. Bound by the proceedings had in the case before the party is a resident or the DSWD.
property was transferred to it, even if not formally
included as a defendant (Herrera, vol.1 p. 405). The party is indigent if the applicant’s gross income and
that of his immediat e family do not exceed the amount
The case will be dismissed if the interest of plaintiff is double the monthly minimum wage of an employee and
transferred to defendant unl ess t here are several the applicant does not own real property wit h fair
plaintiffs, in which case, the remaining plaintiffs can market value of more than Php 300,000 (Rule 141
proceed with their own cause of action. Section 19 Rules of Court)
SECTION 20. ACTION ON CONTRACTUAL SECTION 22. NOTICE TO THE SOLICITOR

MONEY CLAIMS GENERAL
Requisites: (MAD) The OSG as principal law officer and legal defender of
1. The action must primarily be for rec overy of money, the government possesses the unequivocal mandate to
debt , or interest thereon; appear for and its behalf in legal proceedings. Only the
2. The claim, subject of the action, arose from cont ract, Solicitor General can bring or defend actions on behalf
express or implied; and of the Republic, the rule is settled that actions filed in
3. Defendant dies before the entry of final judgment in the name of the latter not initiated by the OSG are
the court in which the action was pending. susceptible of summary dismissal. (Republic v. Heirs of
Cuizon G.R.No. 191531 March 6, 2013)
Note: Under this section, the death of the defendant will
not result in the dismissal of the action. The deceased
shall be substituted by his legal representatives in the
manner provided for in S ec. 16 of Rule 3 and the action
continues until the entry of final judgment.
However, execution shall not issue in favor of the

winning party. The final judgment should be filed as a

obligation. (Paglaum v. Union Bank G.R.No. 179018

RULE 4 June 18, 2012)
V ENUE OF ACT IONS SECTION 1. VENUE OF REAL ACTIONS

A real action is local. The venue is the place where the
Venue real property or any portion thereof is located.
It is the place of trial or geographical location in which
an action or proceeding should be brought. If property is located at the boundaries of two places:
File case in either place at the option of the plaintiff.
Venue Jurisdiction
When the case involves two properties located in two
Place where the action Power of the court to different places:
is instituted. hear and decide a case. 1. If the properties are the object of the s ame
May be waived. Jurisdiction over the transaction, file it in any of the two places; and
subject matter and over 2. If they are the subjects of two distinct transactions,
the nature of the action separate actions should be filed in each place unless
is conferred by law and properly joined.
cannot be waived.
Procedural Substantive
SECTION 2. VENUE OF PERSONAL ACTIONS
May be changed by the Cannot be the subject of A personal action is transitory. It is filed:
written agreement of the agreement of the 1. Where the plaintiff or any of the principal plaintiffs
the parties. parties. resides;
Not a ground for a mot u Ground for a motu 2. Where the defendant or any of the principal
proprio dismissal proprio dismissal defendants resides; or
(except in summary 3. In case of a non-resident defendant, the action may
procedure) be brought in the place where he may be found.
Requisites for venue agreement to be valid: Note: All at the election of the plaintiff.
1. In writing; and
2. Executed by the parties before the filing of the action. Residence should be viewed or understood in its
3. There must be exclusivity as to the selection of the popular sense, meaning the personal, actual, or
venue. physical habit ation of a person, actual residence or
place of abode (Raymond v. Court of Appeals G.R.
The mere stipulation on the venue of an action is not No.80380 September 28, 1988).
enough to preclude parties from bringing a case in
other venues. In the absence of qualifying or restrictive Nominal Party
words, such as “exclusively” and “waiving for his It is one which is included in a lawsuit bec ause of his
purpose any other venue,” “shall only” preceding the technical connection with the matter of dispute but with
designation of the venue, “to the exclusion of the other no right to recover (i.e. sheriff or trustee holding title to
courts,” or words of similar import, the stipulation should a real property).
be deemed as merely an agreement on an additional
forum, not as limiting venue to the specified place Means of waiving venue:
(Auction in Malinta, Inc., v. Luyaben, G.R. No. 173979, 1. Failure to object via motion to dismiss;
February 12, 2007). 2. Affirmative relief sought in the court where the case is
filed;
When the stipulation as to venue in a passenger ticket 3. Affirmative defense in an answer;
of a vessel would be cont rary to public policy of making 4. Voluntary submission to the court where the case is
courts accessible to all who may have need of their filed; or
service, the stipulation is void and unenforceable 5. Laches.
(Sweet Lines v. Teves, G.R. No. 28324, May19, 1972).
SECTION 3. VENUE OF ORDINARY CIVIL
Note: When the action is no longer based on the ACTIONS AGAINST NON-RESIDENTS
agreement but on the t ortious act of sending collection
telegrams despite the fact that the obligation had 1. Non-resident found in the Philippines
already been paid, venue is no longer based on the a. For personal actions – where the plaintiff resides;
written stipulation but at the election of the plaintiff as and
fixed by law (Herrera, Vol. 1, p. 636). b. For real actions – where the property is located.
2. Non-resident not found in the Philippines
In cases where the Real Estate Mortgage was An action may be filed only when the case involves:
restructured, the venue stipulation in the Restructuring a. Personal status of plaintiff – Venue: Where plaintiff
Agreement is controlling because it modify the entire resides; and

b. Any property of said defendant located in the The procedure in the MTC shall be the same as in the
Philippines – Venue: Where the property or any RTC, except:
portion thereof is situated or found. 1. Where a particular provision expressly or impliedly
applies only to either of said courts; or
The Supreme Court has the power to order a change of 2. In civil cases governed by the Rule on Summary
venue to prevent a miscarriage of justice. Procedure (See discussions under Special Laws).
Note: The court may not motu proprio dismiss a Note: When defendant fails to file an ans wer, the court
complaint on the ground of improper venue (Dacoycoy can render judgment based solely on the allegations in
v. Intermediate Appellate Court, G.R. No. 74854, April the complaint. No need for plaintiff to present evidence.
2, 1991). (Fairland Knitcraft Corp. v. Po, 27 January 2016).
Exception: Under the Revis ed Rules on Summary

Procedure, the court may dismiss the case outright on RULE 6
any of the grounds apparent therefrom for the dismissal
of a civil action. K INDS OF P LEADINGS
If the plaintiff does not reside in the Philippines, the

SECTION 1. PLEADINGS DEFINED
complaint may only be filed in the court of the place
where t he defendant resides. The plaintiff bein g a
resident of USA is not given the choice of venue of the Pleadings
filling of the complaint. (Ang v.A ng G.R. No. 186993 These are the written statements of the respective
August 22,2012) claims and defenses of the parties submitted to the
court for appropriat e judgment. Under the Rules of
SECTION 4. WHEN RULE NOT APPLICABLE Court, pleadings cannot be oral because they are
clearly described as “written” statements.
The rule on venue is inapplicable in cases:
Purpose of pleadings: (AID)
1. Where a specific rule or law provides otherwise (i.e.
1. To apprise the Court of the rival claims in a judicial
an action for damages arising from libel); or
controversy submitted for trial and decision;
2. The parties have validly agreed in writing before the
2. To indicate fairly the nature of the claims and
filing of the action on the exclusive venue thereof
defenses of both parties; and
(Sec. 4).
3. To present, define and narrow the issues, to limit the
proof to be submitted in the trial and form the
Note: A real estate mortgage over a property in
foundation of proof to be submitted during trial as well
Paranaque City contained a stipulation that the
as advice a party to what his adversary would rely on
exclusive venue is in Makati City. The mort gagors filed
as a cause of action or as defense ( Lianga Lumber v.
their action for annulment of the foreclosure sale in
Lianga Timber, G.R. No. 38685, March 31, 1977).
Paranaque and the mort gagee filed its petition for
extrajudicial foreclosure also in Paranaque. While the
Pleadings are necessary to invoke the jurisdiction of the
venue of the annulment action was improperly laid, that
court. They determine whether the issue presented to
is not the case with the petition for extrajudicial
be tried is of law or of fact (61 Am J ur 2d, Pleading, S1,
foreclosure. The extrajudicial foreclos ure sale of a real
1981).
estate mortgage is governed by Act No. 3135. Thus the
sale can be made only in Paranaque where the realty is
Note: A motion to dismiss is not a pleading.
located purs uant to Section 2 of Act No. 3135. The
exclusive venue of Makati City, as stipulated by the
However, there are motions that actually seek judgment
parties and sanctioned by Section 4, Rule 4 of the
like a motion for judgment on the pleadings (Rule 34)
Rules of Court, cannot be made to apply to the Petition
and motion for summary judgment (Rule 35).
for Extrajudicial Foreclosure filed by respondent bank
because the provisions of Rule 4 pert ain to venue of
All pleadings shall be liberally construed so as to do
actions, which an extrajudicial foreclosure is not.
substantial justice (Concret e Aggregate Corporation v.
(Ochoa v. China Banking Corp., 23 March 2011).
Court of Appeals, G.R. No. 117574, January 2, 1997).
In cases there are ambiguities in the pleadings, the
same must be construed most strongly against the
RULE 5 pleader and that no presumptions in his favor are to be
indulged in (61 Am Jur, Pleading, S57).
UNIFORM P ROCEDURE IN T RIAL
C OURT S SECTION 2. PLEADINGS ALLOWED
1. Complaint;
SECTION 1. UNIFORM PROCEDURE 2. Counterclaim;
3. Cross-claim;

4. Third-party Complaint (or fourth, etc); SECTION 5. DEFENSES

5. Complaint-in-intervention;
6. Answer; Two kinds of defense s that may be set forth in the
7. Reply; answer
8. Counter-counterclaim; and 1. Affirmative Defense s – It is an allegation of a new
9. Counter-Crossclaim. matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
SECTION 3. COMPLAINT would nevertheless prevent or bar recovery by him.
This is not a denial but is one which, if established,
Complaint will be a good defense, i.e. an avoidance of the claim.
It is an initiatory pleading alleging the plaintiff’s cause or
causes of action. It should contain: Affirmative defenses include fraud, prescription,
1. The names and residences of the plaintiff and release, payment, illegality, statute of frauds,
defendant; estoppel, former recovery, discharge in bankruptcy,
2. A concise statement of the ultimate facts constituting and another matter by way of confession and
the plaintiff’s cause of action. avoidance.
2. Negative Defenses – It refers to a specific denial of
Ultimate Facts the material facts or facts alleged in the pleading of
These refer to the essential facts constituting the the claimant essential to his cause of action.
plaintiff’s cause of action, not evidentiary facts or legal
conclusions. Insufficient denial or denial amounting to
admissions
A fact is essential if it cannot be stricken out without 1. General denial; and
leaving the statement of the cause of action insufficient. 2. Denial in the form of a negative pregnant.
The jurisdiction of t he court and the nature of the action Negative Pregnant
are determined by the averments in the complaint. It is a form of denial which at the same time involves an
affirmative implication favorable to the opposing party.
Test of sufficiency of the facts alleged in the Where a fact is alleged wit h some qualifying or
complaint: Determine whether upon the averment of modifying language, and the denial is conjunctive, a
facts, a valid judgment may be properly rendered. negative pregnant exists and only the qualification or
modification is denied while the fact itself is admitted. It
What are not Ultimate facts (LEAD): is said to be a denial pregnant with an admission of the
1. Legal conclusions, conclusions or inferences of facts substantial facts in the pleading responded to. It is not a
from facts not stated, or incorrect inferences or specific denial and is actually an admission.
conclusions from facts stated;
2. Evidentiary or immaterial facts; SECTION 6. COUNTERCLAIM
3. An allegation that a contract is valid or void is a mere
conclusion of law; and Counterclaim
4. The details of probative matter or particulars of It is any claim which a defending party may have
evidence, statements of law, inferences and against an opposing party.
arguments.
Nature of a counterclaim: It partakes of a complaint
Note: A complaint is also called an initiatory pleading by the defendant against the plaintiff or a cross-
because it is actually the first pleading filed in court. It is complaint. Although it may be alleged in the answer, it
the pleading that initiates the civil action. is not part of the ans wer. Upon its filing, the same
proceedings are had as in t he original complaint. For
It is important to know the initiatory pleadings because this reason, it must be ans wered within ten (10) days
there are certain requirements mandated by law to be from service.
complied with (i.e. certification against forum-shopping
and payment of docket fees). Counterclaims may either be:
1. Compulsory; or
SECTION 4. ANSWER 2. Permissive.
Answer SECTION 7. COMPULSORY COUNTERCLAIM

It is a responsive pleading in which a defending party
sets forth his affirmative or negative defenses. It may or Compulsory Counterclaim
may not contain a counterclaim. It is one which, being cognizable by the regular courts,
arises out of or is connected with the transaction or
It may likewise be the response to a counterclaim or a occurrence constituting the subject matter of the
cross-claim. opposing party’s claim and does not require for its

adjudication the presence of third parties of whom the

court cannot acquire jurisdiction. Where the mortgagee after an extrajudicial foreclosure,
had filed an action for the deficiency, the mortgagor’s
Requisites of a compulsory counterclaim claim for the nullification of the extrajudicial foreclosure
1. It must arise out of, or be necessarily connected with, is a compulsory counterclaim whic h cannot be set up in
the transaction or occurrence that is the subject a separate action. (Sps. Mendiola v. CA, 18 July 2012).
matter of the opposing party’s claim;
2. It does not require for its adjudication the presence of
third parties of whom the court cannot acquire In a complaint by a distributor against Bayer Phils. for
jurisdiction; abuse of right in terminating a distribut orship contract,
3. It must be within the jurisdiction of the court; and the latter’s counterclaim for unpaid accounts under the
4. It must be cognizable by the regular courts of justice. distributorship cont ract is a permissive counterclaim as
it involves different issues and evidentiary requirements.
Rules on compul sory counterclaim: A counterclaim Nonetheless the trial court should not have dismissed
before the MTC must be within the jurisdiction of said the counterclaim but should have given Bayer
court, both as to the amount and nature thereof. reasonable time but not within the reglementary period
to pay the docket fee. This was because Bayer
In an original action before the RTC, the count erclaim honestly thought that the counterclaim was compulsory
may be considered compulsory regardless of the by virtue of the trial court’s earlier order denying the
amount. motion to strike out the counterclaim. (Calibre Traders
Inc. v. Bayer Phils., 13 October 2010).
Illustration: In accion publiciana filed with the RTC
where the value of the land is PhP1,000,000 and General Rule: A compulsory counterclaim not set up in
defendant claims for reimburs ement of PhP 50,000, the the answer is deemed barred.
reimbursement would be considered as compulsory
because the original action was filed with the RTC. Exceptions:
a. If it is a counterclaim which either matured or was
However, the nature of the action is always material acquired by a party after serving his answer. In this
such that unlawful detainer cannot be set up in the RTC. case, it may be pleaded by filing a supplemental
answer or pleading before judgment, with the
If a counterclaim is filed in the MTC in excess of its permission of the court (Sec. 9, Rule 11).
jurisdictional amount, the excess is considered waived b. When a pleader fails to set-up a counterclaim through
(Agustin v. Bacalan, G.R. No. 46000, March 18, 1985). oversight, inadvertence, excusable negligenc e, or
In Calo v. Ajax Int ’l (G.R. No. 22485, March 16. 1968), when justice requires, he may, by leave of court, set-
the remedy where a counterclaim is beyond the up the counterclaim by amendment of the pleadings
jurisdiction of the MTC is to set off the claims and file a before judgment (Sec. 10, Rule 11).
separate action to collect the balance.
Permissive Counterclaim
Note: A plaintiff who fails or choos es not to answer a Refers to a count erclaim where any of the elements of
compulsory counterclaim may not be declared in a compulsory counterclaim is absent.
default, principally because the issues raised in the
counterclaim are deemed aut omatically joined by the It is an initiatory pleading. “A counterclaim is considered
allegations of the complaint (Gojo v. Goyala, G.R. No. a complaint, only this time, it is the original defendant
26768, October 30, 1970). who becomes the plaintiff. It stands on the same
footing and is to be tested by the s ame rules as if it
The filing of a motion to dismiss and the setting up of a were an independent action” (DBP v. Court of Appeals,
compulsory counterclaim are incompatible remedies. In G. R. No. 129471, April 28, 2000).
the event that a defending party has a ground for
dismissal and a compulsory counterclaim at the same In this connection, in filing a counterclaim, docket fee is
time, he must choose only one remedy. If he decides to required to be paid (See Sec. 1 and Sec. 7 and 8, Rule
file a motion to dismiss, he will lose his compulsory 141) and a certification of non-forum shopping has to
counterclaim. But if he opts to set up his compulsory be attached (See Sec. 5, Rule 7).
counterclaim, he may still plead his ground for dismissal
as an affirmative defense in his answer (Financial In an action filed by a former mortgagor to nullify
Building Corp. v. Forbes Park Association, G.R. No. GSIS‟s bid award of the foreclosed property to a
133119, August 17, 2000). corporation, GSIS ‟s claim for the former mortgagor to
pay rentals he collected from the corporation over the
Action for deficiency filed by the mortgagee bank. The foreclosed property is a permissive counterclaim. The
mortgagor’s claim for refund of the excess over the bid evidence needed by the former mortgagor to nullify the
price was a compulsory count erclaim. On appeal, the bid award is different from the evidence needed by
CA cannot award refund even if excess was raised as a GSIS to prove its claim to the rentals. Likewise the
defense because contrary to S2 R9. (Metrobank v. CPR issue of the validity of the bid award is not related to
Promotions, 22 June 2015). GSIS‟s right to collect rentals which is based on its
acquisition of ownership after the former mortgagor’s the counterclaim pleaded in the answer, compulsory
failure t o redeem. Since GSIS did not pay docket fees or permissive is not dismissed.
on the permissive count erclaim, the award thereof was 2. Where t he plaintiff himself files a motion t o dismiss
null and void for failure of the trial court to acquire his own complaint after the defendant has filed an
jurisdiction over it. (GSIS v. Caballero, 4 October 2010). answer with count erclaim, the dismissal shall be
without prejudice to the right of the defendant to
prosecut e his counterclaim in a separate action
Permissive Compulsory unless within 15 days from notice of the motion, he
Counterclaim Counterclaim manifests his preference to have his count erclaim
It does not arise out of One which arises out resolved in the same action.
nor is it necessarily of or is necessarily 3. Where the complaint is dismissed due to the plaintiff’s
connected with the connected with the fault and at a time when a counterclaim has already
subject matter of the transaction or been set up. The dismissal is also without prejudice
opposing party’s occurrence that is the to the right of the defendant to prosecute his
claim. subject matter of the counterclaim in the same or separate action.
opposing party’s claim.
It may require for its It does not require for SECTION 8. CROSS-CLAIM
adjudication the its adjudication the
presence of third presence of third Cross Claim
parties over whom the parties of whom the It is any claim by one party against a co-party arising
court cannot acquire court cannot acquire out of the transaction or occurrence that is the subject
jurisdiction. jurisdiction. matter either of the original action or of a count erclaim
It is not barred even if It is barred if not set up therein. Such cross-claim may include a claim that the
not set up in the in the action. party against whom it is asserted is or may be liable to
action. the cross-claimant for all or part of a claim asserted in
It is considered an It is not an initiat ory the action against the cross-claimant. A cross-claim
initiatory pleading. pleading. may be filed against the original cross-claimant.
It should be It does not require the
accompanied by a certificate. Requirements for a cross- claim:
certification against 1. A claim by one party against a co-party;
forum shopping and 2. It must arise out of the subject matter of the complaint
whenever required by or of the counterclaim; and
law, also a certificate 3. The cross-claimant is prejudiced by the claim against
to file action issued by him by the opposing party.
the Lupong
Tagapamayapa. Purpose: To settle in a single proceeding all the claims
It must be answered A compulsory of the different parties in the case against each other in
by the party against counterclaim that order to avoid multiplicity of suits (Republic of the
whom it is interposed merely reiterates Philippines v. P aredes, G. R. No. L-12546, May 20.
otherwise, he may be special defenses are 1960).
declared in default as deemed controverted
to the counterclaim. even without a reply. General Rule: If it is not set up in the action, it is
In suc h a case, failure barred.
to answer may not be
a cause for a Exceptions:
declaration of default. 1. When it is outside the jurisdiction of the court; or
2. If the court cannot acquire jurisdiction over third
Effect on the counterclaim when the complaint is parties whose presence is necessary for the
dismi ssed: The dismissal of the complaint where the adjudication of said cross-claim. In which case, the
defendant has previously filed an ans wer and a cross-claim is considered permissive; or
counterclaim, whet her compulsory or permissive, shall 3. Cross claim that may mature or may be acquired after
allow the latter to prosecute the counterclaim whether in service of the answer (Riano, p. 285).
the same or a separat e action, not withstanding such
dismissal: Note: The dismissal of the complaint carries with it the
1. If no motion to dismiss has been filed, any of the dismissal of a cross-claim which is purely defensive, but
grounds for dismissal provided for in this Rule may be not a cross-claim seeking an affirmative relief.
pleaded as an affirmative defense in the answer and,
rd
in the discretion of the court, a preliminary hearing 3 -Party
Cross Claim Counterclaim
may be had thereon as if a motion to dismiss had Complaint
been filed. If during the hearing on the affirmative
defenses, the court decides to dismiss the complaint,

rd Note: Only allegations of usury in a complaint to
3 -Party
Cross Claim Counterclaim recover usurious interest are deemed admitted if not
Complaint
denied under oath. Henc e, if the allegation of usury is
Against a co- Against an Against a
contained in an ans wer, it is not necessary for the
party. opposing party. person not a
plaintiff to file a reply thereto in order to deny that
party to the
allegation under oath (Regalado, Vol. 1, p.146).
action.
Must arise out May arise out of Must be in SECTION 11. THIRD (FOURTH, ETC.) – PARTY
of the or be respect of the COMPLAINT
transaction necessarily opponent’s
that is the connected with (Plaintiff) Third – Party Complaint
subject matter the transaction claim.
It is a claim that a defending party may, with leave of
of the original or the subject court, file against a person not a party to the action for
action or of a matter of the contribution, indemnity, subrogation or any other relief
counterclaim opposing
(CISA), in respect of his opponent’s claim. There could
therein. party’s claim, in also be a fourth, etc., - party complaint with the same
which case, it is purpose and function.
called a
compulsory Tests to determine whether the third-party
counterclaim, or complaint is in respect of plaintiff’s claim
it may not, in
1. Whether it arises out of the same transaction on
which case it is which the plaintiff’s claim is based, or although arising
called a out of another or different transaction, is connected
permissive
with the plaintiff’s claim;
counterclaim. 2. Whether the third-party defendant would be liable to
No need for a No need for a Leave of court the plaintiff or to the defendant for all or part of the
leave of court. leave of court. is needed. plaintiff’s claim against the original defendant; and
3. Whether the third-party defendant may assert any
SECTION 9. COUNTER-COUNTERCLAIMS AND defenses which the t hird-party plaintiff has or may
COUNTER-CROSS-CLAIMS have to the plaintiff’s claim.
Leave of court to file a third-party complaint may be

Counter-Counterclaim
obtained by motion under Rule 15.
It is a claim asserted against an original
counterclaimant.
Summons on third, fourth, etc.-party defendant must be
served for the c ourt to obtain jurisdiction over his
Counter-Crossclaim
person, since he is not an original party.
It is a claim filed against an original cross-claimant.
Where the trial court has jurisdiction over the main
SECTION 10. REPLY case, it also has jurisdiction over t he third -party
complaint, regardless of the amount involved as a third-
Reply party complaint is merely auxiliary to and is a
It is the respons e of the plaintiff to t he defendant’s continuation of the main action (Republic of the
answer, the function of which is to deny or allege facts Philippines v. Central S urety & Ins urance Co., G.R. No.
in denial or in avoidance of new matters alleged by way L-27802, October 26, 1968).
of defense in the ans wer and thereby join or make
issue as to such new matters. A third-party complaint is not proper in an action for
declaratory relief (Commissioner of Customs v. Cloribel,
Effect of failure to file a reply G.R. No. L- 21036, June 30, 1977).
General Rule: Filing a reply is merely optional. New
Third-Party Complaint Complaint in
facts that were alleged in the ans wer are deemed
Intervention
controverted should a party fail to reply thereto.
Brings into the action a Same.
third person who was
Exceptions: Reply is required: not originally a party.
1. Where the answer is based on an actionable Initiative is with the Initiative is with a non-
document (Sec.8, Rule 8); and person already a party party who seeks to join
2. To set up affirmative defenses on the count erclaim to the action. the action.
(Ros ario v. Martinez, G.R. No. L- 4473, September
30, 1952). SECTION 12. BRINGING NEW PARTIES

Di stingui shed from a third-party complaint: A third- 3. Alleging scandalous or indecent matter in the
party complaint is proper when not one of the third- pleading; or
party defendants therein is a party to the main action. If 4. Failing to promptly report a change of his address.
one or more of t he defendants in a c ount erclaim or
cross-claim is already a party to the action, then the SECTION 4. VERIFICATION
other necessary parties may be brought in under t his Pleadings need not be verified (under oath) except
section. when otherwise provided by the law or rules.
RULE 7 How a pleading is verified: By an affidavit that the

affiant:
P ART S OF P LEADINGS 1. Has read the pleading; and
2. That the allegations therein are true and correct of his
personal knowledge or based on authentic
PARTS OF A PLEADING
documents.
SECTION 1. CAPTION
The purpose of requiring a verification is to secure an
assuranc e that the allegations of the petition have been
The Caption contains the following:
made in good faith, or are true and correct, not merely
1. The name of the court;
speculative. The absence of a proper verification is
2. The title of the action – indicates the names of the
cause to treat the pleading as unsigned and
parties; and
dismissible; hence, produces no legal effect (Sarmiento
3. The docket number if assigned.
v. Zaratan, G.R. No. 167471, February 5, 2007).
SECTION 2. THE BODY
List of pleadings that should be verified (not
The body sets forth:
exclusive)
1. Its designation;
1. Certification against forum shopping in initiatory
2. The allegation of the party’s claims and defenses;
pleadings asserting claims for relief (including
3. The relief prayed for; and
permissive counter-claims). (See Sec. 5, Rule 7,
4. The date of the pleading.
Rules of Civil Procedure).
2. Statement of Claim for Small Claims Cases, as well
Note: It is not the caption of the pleading but the
as the Response thereto (See Secs. 5 & 11, Rules of
allegations therein which determine the nature of the
Procedure for Small Claims Cases).
action and the court shall grant relief warranted by the
3. Complaint for injunction (See Sec. 4, Rule 58, Rules
allegations and proof even if no such relief is prayed for
of Civil Procedure).
(Riano, p. 54).
4. Application for appointment of receiver (See Sec. 1,
Rule 59, Rules of Civil Procedure).
SECTION 3. SIGNATURE AND ADDRESS
5. Application for support pendente lite (See Sec. 1,
E very pleading must be signed by the party or counsel
representing him, stating in either case his address
6. Petition for forcible entry or unlawful detainer, the
which must not be a post office box.
answers thereto, and the answers to any compulsory
counter-claim and cross-claim pleaded in the answer
Significance of the signature of counsel: His
(See Sec. 4, Rule 70, Rules of Civil Procedure).
signature constitutes a certificate by him: (RNB)
7. Petition for indirect contempt (See Sec. 4, Rule 71,
1. That he has read the pleading;
Rules of Civil Procedure).
2. That to the best of his knowledge, information or
8. Petition for relief from judgment or order. (See Sec. 3,
belief, there is good ground to support it; and
3. It is not interposed for delay.
9. Petition for Review from the RTC to the Supreme
Court (S ee Sec. 2[c], Rule 41, Rules of Civil
Note: A signed pleading is one that is signed either Procedure).
by the party himself or his counsel. An unsigned 10. Petition for Review from RTC to Court of
pleading produces no legal effect. However, the court Appeals (See Sec. 1, Rule 42, Rules of Civil
Procedure).
may, in its discretion, allow suc h deficiency to be
11. Petition for Review under Rule 43, from CTA
remedied if it shall appear that the same was due to
and other quasi-judicial agencies to Court of Appeals
inadvertence and not intended for delay. (See Sec. 5, Rule 43, Rules of Civil Procedure).
12. Appeal by Certiorari under Rule 45, from Court
of Appeals to Supreme Court (See Sec. 1, Rule 45,
Di sciplinary action on counsel in the follow ing Rules of Civil Procedure).
cases: 13. Petition for Certiorari (special civil action) under
1. Deliberately filing an unsigned pleading; Rule 64 (See Sec. 2, Rule 64, Rules of Civil
2. Deliberately signing a pleading in violation of the Procedure).
Rules;

14. Petition for Certiorari (special civil action) under 2. Filing multiple cases based on the same cause of
Rule 65 (See Sec. 1, Rule 65, Rules of Civil action and with the same prayer, the previous having
Procedure). been resolved with finality (res judicata);
15. Petition for Prohibition under Rule 65 (See Sec. 3. Filing multiple cases based on the same causes of
2, Rule 65, Rules of Civil Procedure). action but with different prayers (splitting of cause of
16. Petition for Mandamus under Rule 65 (See Sec. action, where the ground for dismissal is also litis
3, Rule 65, Rules of Civil Procedure). pendentia or res judicata) (Ao-As v. Court of Appeals,
17. Petition for appointment of guardian (See Sec. et al., G.R. No. 128464, June 20, 2006).
2, Rule 93, Rules of Court).
18. Petition for leave filed by guardian to sell or Note: The certificate of non-forum shopping is a
encumber property of an estate (See Sec. 1, Rule 95, mandatory requirement in filing a complaint and other
Rules of Court). initiatory pleadings asserting a claim or relief (S ec. 5,
19. Petition for declaration of competency of a ward Rule 7, Rules of Court).
(See Sec. 1, Rule 97, Rules of Court). The certificate against forum shopping is required only
20. Petition for habeas corpus (See Sec. 3, Rule in a complaint of other initiat ory pleading. The ex parte
102, Rules of Court). petition for the issuance of a writ of possession is not
21. Petition for change of name (See Sec. 2, Rule an initiatory pleading. (Metrobank v. Santos G.R.No.
103, Rules of Court). 157867 December 15, 2009)
22. Petition for voluntary judicial dissolution of a
corporation (See Sec. 1, Rule 105, Rules of Court; These initiatory pleadings include not only the original
see also Sec. 119, Corporation Code). complaint but also:
23. Petition for cancellation or correction of entries 1. Permissive counterclaim;
in the civil registry under Rule 108 (See Sec. 1, Rule 2. Cross-claim;
108, Rules of Court). 3. Third (fourth, etc.) - party complaint;
4. Complaint-in-intervention; and
SECTION 5. CERTIFICATION AGAINST FORUM 5. Petition or application wherein t he party asserts his
SHOPPING claim for relief.
Forum Shopping The rule does not require a certificate against forum
It consists of filing multiple suits in different courts, shopping for a compulsory counterclaim because it
either simultaneously or successively, involving the cannot be subject to a separate and independent
same parties, to ask the courts to rule on the same or adjudication. It is not an initiatory pleading (University of
related causes and/or to grant the same or substantially Sto. Tomas v. Surla, G.R. No. 129718, August 17,
the same relief. 1998).
It is an act of malpractice, as the litigants trifle with the Effect of failure to comply: Not curable by mere
courts and abuse their processes (Riano, p. 64). amendment of the pleading but shall be cause for the
dismissal of the case, without prejudice, unless
Test to determine the presence of forum shopping: otherwise provided, upon motion (not motu proprio) and
Whether in the two (or more) cases pending, there is after hearing.
identity in terms of the following:
1. Parties or identity of interests represented (Cf. First Effect of submi ssi on of false certification or non-
Phil. International Bank , et al. v. Court of Appeals, compliance with the undertakings therein
G.R. No. 115849, January 24, 1996); 1. Indirect contempt; and
2. Rights or causes of action; and 2. Without prejudice to the filing of administrative and
3. Relief sought. criminal actions against the counsel.
The certificate is to be executed by petitioner, and not Note: In relation to the crime of perjury, the material
by counsel, unless the latter is specifically authorized to matter in a Certificate against Forum Shopping is the
do so. truth of the required declarations which is designed to
guard against litigants pursuing simultaneous remedies
Ratio: The party himself has actual knowledge or in different fora. Willful and deliberate assertion of
knows better than anyone else, whet her he has initiated falsehood in the certificate of non-forum shopping
similar actions in other courts agencies or tribunals constitutes perjury (See Union Bank v. People, G.R. No.
(Riano, 2007, p. 56). 192565, February 28, 2012).
Effect of willful and deliberate forum shopping

Three ways of committing forum shopping: 1. Shall be ground for summary dismissal of the case
with prejudice; and
1. Filing multiple cases based on the same cause of
2. Direct cont empt, as well as a c ause for administrative
action and with the same prayer, the previous not
sanctions.
having been resolved yet (litis pendentia);

Di stinctions between defect in verification and 173326 December 15, 2010; Mid-Pasig Land Dev‟t
certificate of non-forum shopping Corp. v. Tablante, 4 February 2010).
1. As to verification, non-complianc e therewith or a
defect therein does not necessarily render the Petitioners to sign certification on non-forum shopping
pleading fatally defective. The court may order its In the case of Formoso v.P NB G.R.No. 154704 June 1,
submission or correction or act on the pleading if the 2011, among seven petitioners only one of the
attending circumstances are s uch that strict petitioner signed the certification of non -forum shopping.
compliance with the Rule may be dispensed with in The case was dismissed because Malcaba, the one
order that the ends of justice may be served thereby. who signed, have not shown proof that he was
authorized by his co-petitioners to sign for them.
Verification is deemed substantially complied with Further, there was no special power of attorney shown
when one who has ample knowledge to swear to the by the Formosos aut horizing Malcaba as their attorney
truth of the allegations in the complaint or petition in fact in filing petition for review on certiorari. Moreover,
signs the verific ation, and when matters alleged in the Malcaba is not a relative who is similarly situated with
petition have been made in good faith or are true and the other petitioners.
correct.
2. As to certification against forum shopping, non- There can be forum shopping even if the violator was a
compliance therewith or a defect therein, unlike in respondent in the earlier case and the petitioner in the
verification, is generally not curable by its subsequent latter case where she had sought the same relief
submission or correction t hereof, unless there is a (application for protection order) in both cases. (Brown-
need to relax the Rule on the ground of “substantial Araneta v Araneta, 9 October 2013).
compliance” or pres ence of “special circumstances or
compelling reasons.”
A violation of the rule against forum -shopping other
The certification against forum shopping must be than a willful and deliberate forum shopping did not
signed by all the plaintiffs or petitioners in a case; authorize the RTC to dismiss the proc eeding without
otherwise, those who did not sign will be dropped as motion and hearing. Specifically, the submission of a
parties to the case. false certification of non-forum shopping did not
automatically warrant the dismissal of the proceeding,
Under reas onable or justifiable circumstances, even if it might have constituted contempt of court, for
however, as when all the plaintiffs or petitioners share Section 5, Rule 7, of the 1997 Rules of Civil Procedure
a common interest and invoke a common cause of is clear on the matter. (In re: Reconstitution of TCTs
action or defense, the signature of only one of them 3031684 & 303169, G.R. 156797, 6 July 2010).
in the certification against forum shopping
substantially complies with the Rule. Petition should be dismissed where notarial certificate
of the V erification & CFS did not state whether
The certification against forum shopping must be petitioners presented competent evidence of their
executed by the party-pleader, not by his counsel. If, identities, or that they were personally known t o the
however, for reasonable or justifiable reasons, the notary public. (William Go Que Construction v. Singson,
party-pleader is unable to sign, he must execute a 19 April 2016).
Special Power of Attorney designating his counsel of
record to sign on his behalf (Altres v. Empleo, G.R. In ejectment case, the CFS may be executed and
No. 180986, December 10, 2008). signed by attorney-in-fact who had authority to file and
did file the complaint. (Monasterio-Pe v. Tong, 23
Note: Where the plaintiff or a principal party is a March 2011).
juridical entity like a corporation it may be ex ecuted by
a properly authorized person. This person may be the Non-inclusion of phrase “or based on authentic records”
lawyer of the corporation. As long as he is duly does not render verification defective. (Heirs of Mesina
authorized by the corporation and has personal v. Heirs of Fian, 8 April 2013).
knowledge of the facts required to be disclosed in the
certification against forum shopping, the certification
may be signed by the authorized lawy er (National Steel RULE 8
Corp. v. Court of Appeals, G.R. No. 134468, August 29,
2002). M ANNER OF M AKING ALLEGAT IONS
IN P LEADINGS
The following officials or employ ees of the company
can sign the verification and certification without need
of board resolution: 1. the chairperson of the board of
SECTION 1. IN GENERAL
directors; 2. the president of the corporation; 3. the
general manager or the acting general manager; 4. E very pleading shall contain in a methodical and logical
Personnel offic er and 5. An employment specialist in form a plain, concise and direct statement of the
labor case. (South Cotabato v. Sto. Tomas G.R.No. ultimate facts, omitting the statement of mere
evidentiary facts.

Ultimate Facts Two permissible ways of pleading an actionable

These refer to those which directly form the basis of the document
right sought to be enforced or the defense relied 1. By setting forth the substance of such document in
upon. If the ultimate facts are not alleged, the cause of the pleading and attaching said document thereto as
action would be insufficient. an exhibit (contents of the document annexed are
controlling, in case of variance in the substance of the
Evidentiary Facts document set forth in the pleading and in the
These refer t o those which are necessary to prove the document attached); or
ultimate fact or which furnish evidence of the existence 2. By setting forth said document verbatim in the
of some other facts. pleading.
Test to di stingui sh conclusion of law from NOTE: It is true that notarial document is considered
statement of facts: If from the facts in evidence, the evidence of facts expressed therein. A notarial
result can be reached by the process of natural document enjoys prima facie presumption of
reasoning adopted in the investigation of truth, it authenticity and due ex ecution and only clear and
becomes an ultimate fact to be found as such. convincing evidence will overcome such legal
presumption. (Titan Construction v. David
If, on the other hand, resort must be had to artificial G.R.No.169548 March 15, 2010)
processes of the law in order to reach a final
determination, the result is a conclusion of law (Herrera, BPI’s cause of action is not based only on the
Vol. 1, p. 521). document containing the Terms and Conditions
accompanying the issuance of the BPI credit card in
SECTION 2. ALTERNATIVE CAUSES OF favor of Ledda. Therefore, the document containing
ACTION OR DEFENSE the Terms and Conditions governing the use of the BPI
A party may state as many claims or defenses as he credit card is not an actionable document contemplated
has regardless of consistency but each must be in Section 7, Rule 8 of the 1997 Rules of Civil
consistent in itself (Herrera, Vol. 1, p. 525). Procedure. As such, it is not required by the Rules to be
set forth in and attached to the complaint. (Ledda v. BPI,
Facts that may be averred generally: (CCC LeMJO) 21 November 2012).
1. Conditions precedent (but there must still be an
allegation that the specific condition precedent has SECTION 8. HOW TO CONTEST SUCH
been complied with, otherwis e, it will be dismissed for DOCUMENT
lack of cause of action (Sec. 3);
2. Capacity to sue or be sued (Sec. 4); How to contest an actionable document
3. Capacity to sue or be sued in a representative 1. By specific denial under oath; and
capacity (Sec.4); 2. By setting forth what is claimed to be the facts.
4. Legal existence of an organization (Sec. 4);
Note: A party desiring to raise an issue as to the Where the actionable document is properly alleged,
legal existence or capacity of any party to sue or be the failure to specifically deny under oath the same
sued in a representative capacity shall do so by results in:
specific denial which shall include supporting 1. The admission of the genuineness and due exec ution
particulars within the pleader’s knowledge. of said document, except that an oath is not required:
5. Malice, intent, knowledge, or other condition of the a. When the adverse party was not a party to the
mind (Sec. 5); instrument; or
Ratio: It is difficult to state the particulars constituting b. When complianc e with an order for an inspection
these matters. was refused.
6. Judgments of domestic or foreign courts, tribunals, 2. The document need not be formally offered in
boards, or officers (no need to show jurisdiction (for it evidence.
is presumed; Sec. 6); and
7. Official document or act (Sec. 9). Genuineness
It means that the instrument is:
Facts that must be averred particularly: The 1. Not spurious, counterfeit, or of different import on its
circumstances showing fraud or mistake in all face from the one executed by the party; or
averments of fraud or mistake (Sec. 5). 2. That the party whose signat ure it bears has signed it;
and
SECTION 7. ACTION OR DEFENSE BASED ON 3. That at the time it was signed, it was in words and
DOCUMENT figures exactly as set out in the pleadings.
Actionable Document Due Execution

It refers to a written instrument upon whic h the action or It means that the document was:
defense is based.

1. Signed volunt arily and knowingly by the party whose Negative Pregnant
signature appears thereon; It is a form of denial which at the same time involves an
2. That if signed by somebody else such representative affirmative implication favorable to the opposing party. It
had the authority to do so; and is in effect, an admission of the averment to which it is
3. That it was duly delivered, and that the formalities directed. It is said to be a denial pregnant with an
were complied with (Hibberd v. Rhode, G.R. No. admission of the substantial facts in the pleading
8418, December 9, 1915). responded to.
The following defense s, being consi stent with the Denial based on lack of knowledge or information
genuineness and due execution, are not waived ineffective where paragraph in complaint averred
despite failure to specifically deny under oath: matters that the Defendant ought to know or could have
(FEW MPM DSC) easily known. (Fernando Medical Enterprises v.
1. Fraud; Wesleyan University Phil., Inc., 20 Jan 2016, Bersamin,
2. Estoppel; J.).
3. Want or illegality of consideration;
4. Mistake; SECTION 11. ALLEGATION NOT
5. Payment; SPECIFICALLY DENIED DEEMED ADMITTED
6. Minority or Imbecility;
7. Duress; General Rule: Allegations not specifically denied are
8. Statute of Limitations; and deemed admitted.
9. Compromise.
Exceptions:
But the following defenses are waived: 1. Allegations as to the amount of unliquidated
1. Forgery in the signature; damages;
2. Unauthorized signature, as in the case of an agent 2. Allegations immaterial to the cause of action; and
signing for his principal; 3. Conclusion of law.
3. The corporation was not authorized under its charter
to sign the instrument; Note: Admissions may be withdrawn by amendments.
4. Want of delivery; or The original pleadings are superseded by the amended
5. At the time the document was signed, it was not in pleading (Insular Veneer, Inc. v. Plan, G.R. No. L-
words and figures exactly as set out in the pleading. 40155, September 10, 1976).
Note: Failure to specifically deny under oath the SECTION 12. STRIKING OUT OF PLEADING OR
genuineness and due execution of an actionable MATTER CONTAINED THEREIN
document generally implies an admission of the same
by the other party. However, such implied admission is
Allegations of merely evidentiary or immaterial facts
deemed waived if the party asserting the same has
may be expunged from the pleading or may be stricken
allowed the adverse party to present evidence cont rary
out on motion.
to the contents of such document without objection
(Central Surety v. Hodges, G.R. No. 12730, August 22,
1960).
RULE 9
SECTION 10. SPECIFIC DENIAL E FFECT OF F AILURE TO P LEAD
Three ways of making a specific denial
1. Specific Absolute Denial – By specifically denying
the averment and, whenever practicable, setting forth SECTION 1. DEFENSES AND OBJECTIONS
the substance of the matters relied upon for such NOT PLEADED
denial;
2. Partial Specific Denial – Part admission and part General Rule: Defenses and objections not raised in a
denial; and motion to dismiss or in the answer are deemed waived.
3. Di savowal of Knowledge – By an allegation of lack
of knowledge or information sufficient to form a belief Exceptions: (RLPJ)
as to the truth or falsity of the averment in the 1. Res judicata;
opposing party’s pleading. 2. Litis pendentia;
3. Prescription of the action; and
This does not apply where the fact as to which want 4. Lack of jurisdiction over the subject matter.
of knowledge is assert ed is, to the k nowledge of the The court shall dismiss the claim if any of foregoing
court, so plain and necessarily within the defendant’s grounds appears from t he pleadings or the evidence on
knowledge that his averment of ignorance must be record.
palpably untrue.

General Rule: Lack of jurisdiction may be raised at any Before judgment by default is Court maintains order
stage of the proceedings even for the first time on
rendered, defendant may: of default.
appeal.
1. Move to set aside order of
Exception: Lack of jurisdiction over the subject matter default upon showing of:
may be barred by laches (Tijam v. Sibonghanoy, G.R.
Presentation of
FAME and that he has a plaintiff’s evidence ex-
No. L-21450, April 15, 1968).
meritorious defense; parte
Note: The ruling in Tijam on the matter of jurisdiction is 2. Avail of Rule 65 in proper
however, the exception rather than the rule as cases.
subsequently confirmed in Calimlim v. Ramirez (G. R.
No. L-34362, November 19, 1982) and Pangilinan v. If plaintiff proves his
Court of Appeals (G. R. No. 83588, Sept ember 29, allegations – Court
1997). Estoppel by laches may be invoked to bar the renders judgment by
issue of jurisdiction only in cases in which the factual Court sets aside order of default.
milieu is analogous to that of Tijam (Riano, p. 157). default and defendant is
allowed to file an answer If plaintiff fails to prove
SECTION 2. COMPULSORY COUNTERCLAIM, his allegations, case is
OR CROSS-CLAIM, NOT SET-UP BARRED dismissed.
Case set for pre-trial
Amended Answer
It is proper if the counterclaim or cross-claim already
existed at the time the original ans wer was filed, but Two stages of default:
due to oversight, inadvertence, or excusable neglect, it 1. Declaration or order of default; and
was not set up. 2. Rendition of judgment by default.
Supplemental Answer Order of Default Judgment by Default

It is proper if the counterclaim or cross-claim matures or Issued by the court, on Rendered by the court
is acquired after the answer is filed. plaintiff’s motion for following a default order
failure of the defendant or aft er it received, ex
SECTION 3. DEFAULT; DECLARATION to file his responsive parte, plaintiff’s
OF DEFAULT pleading seasonably. evidence.
Interlocutory - Not Final – Appealable.
It is the failure of the defendant to answer within the appealable.
period allowed. It is not his failure to appear, nor failure
to present evidence. Note: Failure of the defendant to attend the pre-t rial is a
cause for the court to order the plaintiff to present his
Default in Ordinary Procedure evidence ex parte and for the court to render judgment
on the basis thereof under the Rules. This
After the lapse of Motion denied: consequence is not to be called a declaration of default
(Sec. 5, Rule 18).
time to file an
Defendant allowed General Rule: Default order and consequently a
answer, the plaintiff default judgment are t riggered by the failure of the
may move to declare defending party to file the required answer (S ec. 3, Rule
the defendant in Defendant answers 9).
default.
Exceptions: A judgment by default may be rendered in
the following cases despite an ans wer having been
Motion granted: filed:
1. If a party refuses to obey an order requiring him to
Court issues order of comply with the various modes of discovery (Sec.
default and renders 3[c], Rule 29); or
judgment, or require 2. If a party or officer or managing agent of a party
willfully fails to appear before the officer who is to
plaintiff to submit take his deposition or a party fails to serve ans wers to
evidence ex parte. interrogatories (Sec. 5, Rule 29) (Riano, p. 359).
Elements of a valid declaration of default:

1. The court must have validly acquired jurisdiction over
the pers on of the defendant either by service of
summons or voluntary appearance;

2. The defendant fails to answer within the time allowed 1. Motion to declare him in default;
therefore; 2. Order declaring him in default;
3. There must be a motion to declare the defendant in 3. Subsequent proceedings; and
default filed by the claiming party; 4. Service of final orders and judgments.
4. There must be notice to the defendant by serving
upon him a copy of such motion; Note: A defendant declared in default cannot take part
5. There must be proof of such failure to answer; and in the trial, but he cannot be disqualified from testifying
6. There must be a hearing to declare the defendant in as a witness in favor of non-defaulting defendants
default. (Cavile v. Florendo, G.R. No. 73039, October 9, 1987).
Where no defaults are allowed: (AD LeSS) If the defendant was declared in default upon an
1. Annulment of marriage; original complaint, the filing of the amended complaint
2. Declaration of nullity of marriage; resulted in the withdrawal of t he original complaint.
3. Legal Separation; Henc e, the defendant was entitled to file answer to the
4. Special civil actions of certiorari, prohibition and amended complaint as to which he was not in default.
mandamus where comment instead of an answer is
required to be filed; Note: Judges are admonished against issuing
5. Summary Procedure. precipitat e orders of default as these have the effect of
denying a litigant the chance to be heard and in order to
Note: Under A. M. No. 02-11-10-S C (Rule on prevent needless litigations in the appellate courts.
Declaration of Absolute Nullity of Void Marriages and While there are instances when a party may properly be
Annulment of Voidable marriages) which took effect on defaulted, this should be the exception rather than the
March 5, 2003, if the defendant-spouse fails to answer rule (Tropical Homes, Inc. v. Villaluz, G.R. No. 40628,
the complaint, the c ourt cannot declare him or her in February 24, 1989).
default but instead, should order the pros ecuting Partial default
attorney to det ermine if collusion exists between the 1. The pleading asserting a claim states a common
parties (A ncheta v. Ancheta, G.R. No. 145370, March cause of action against several defending parties;
4, 2004). 2. Some of the defending parties answer and the others
fail to do so; and
May a defendant be declared in default while a 3. The answer interposes a common defense.
motion to dismi ss or a motion for bill of particulars
remains pending and undi sposed of? No, because Effect of partial default: The court will try the case
the filing of a motion to dismiss or motion for bill of against all defendants upon the ans wer of some except
particulars interrupts the running of the period to where the defense is personal to the one who
answer. It will run again from the moment defendant answered, in which case, it will not benefit those who
receives the order denying motion to dismiss or for bill did not answer.
of particulars (Feria, p. 155).
The extent of relief to be awarded in a judgment by
Effect of an order of default default shall not:
1. The court shall proceed to render judgment granting 1. Exceed the amount prayed for; nor
the claimant such relief as his pleading may warrant; 2. Be different in kind from that prayed for; nor
2. Or in its discretion, shall require the claimant to 3. Award unliquidated damages.
submit evidence;
3. Loss of standing in court of the defaulting party Remedies from judgment by default
(Cavile v. Florendo G.R. No. 73039, October 9, 1987); In Crisologo v. Globe Telecom Inc. (G.R. No. 167631,
and December 16, 2005), the Court laid down the remedies
4. Defendant is still entitled to notices of subsequent available to a party declared in default:
proceedings. 1. The defendant in default may, at any time after
discovery thereof and before judgment, file a motion
Relief from order of default: motion to lift order of under oath to set aside he order of default on the
default ground that his failure to answer was due to fraud,
accident, mistake or excusable negligenc e, and that
Requisites: he has a meritorious defense (Sec. 3[b], Rule 9);
1. Verified motion showing fraud, accident mistake or 2. If the judgment has already been rendered when the
excusable negligence; and defendant discovered the default, but before the
2. Meritorious defenses. same has become final and executory, he may file a
motion for new trial under Sec. 1(a), Rule 37;
In such a case, the order of default may be set aside on 3. If the defendant discovered the default after the
such terms and conditions as the judge may impose in judgment has become final and executory, he may
the interest of justice (Sec. 3 [b], Rule 9). file a petition for relief under Sec 1, Rule 38.
4. He may also appeal from the judgment rendered
Rights of a party in default: against him as contrary to evidence or to the law,
Entitled to notice of –
even if no petition to set aside the order of default has

been presented by him (Sec. 2, Rule 41); and If new causes of action are alleged in the amended
complaint filed before the defendant has appeared in
A petition for certiorari to declare the nullity of a court, another summons must be served on the
judgment by default if the trial court improperly declared defendant with t he amended complaint (Gumabay v.
a party in default, or even if the trial court properly Baralin, G.R. No. 30683, May 31, 1977).
declared a party in default, if grave abuse of discretion
attended such declaration. Will the order of the court declaring the defendant
in default be affected by the amendment of the
complaint? Yes, becaus e the amended complaint
RULE 10 supersedes the original complaint. In other words, the
order of default is set aside.
AM ENDED AND S UPPLEM ENT AL
P LEADINGS Supposing the complaint was amended as a matter
of right. I s there a requirement to send summons
anew? No. Based on the following reasons: (Sec. 3,
SECTION 1. AMENDMENTS IN GENERAL Rule 11) First, “answer to amended complaint filed as a
matter of right of right shall be made within 15 days
Pleadings may be amended by: after being served a copy of the amended complaint.
1. Adding an allegation of a party; Secondly, “an answer earlier filed may serve as the
2. Adding the name or substitution of a party; answer to t he amended complaint if no new ans wer is
3. Striking out an allegation of a party; filed.”
4. Striking out the name of a party;
5. Correcting a mistake in the name of a party; and SECTION 3. AMENDMENTS BY LEAVE OF
6. Correcting a mistake or inadequate allegation or COURT
description in any other respect.
Leave of court is required:
Types of amendments: 1. If the amendment is substantial; and
1. Amendment as a matter of right – the party has the 2. A responsive pleading had already been served.
unconditional right to amend his pleading. The court
has no right to prevent him from amending. The Note: E ven if the amendment is substantial, no leave of
opposite party has no right to oppose the amendment st
court is required if made as a matter of right (Sec. 3, 1
(If the court refused to admit the amended pleading sentence says: “except as provided in the next
as a matter of right, it is correctible by mandamus). preceding section”). In other words, the consideration
2. Amendment as a matter of judicial discretion – the should always be whet her the responsive pleading has
court may or may not allow the amendment. The already been filed or not. If yes, then it is no longer a
other party has the right to oppose (Amendment by matter of right.
Leave of Court).
Requisites:
SECTION 2. AMENDMENTS AS A M ATTER OF 1. There must be a motion filed in court;
RIGHT 2. Notice to the adverse party; and
Amendment is a matter of right before a responsive 3. Opportunity to be heard afforded to the adverse
pleading is served, or in cas e of a Reply, within 10 days party.
after it was served.
Instance s when amendment by leave of court may
Such right can only be exercised once. Subsequent not be allowed:
amendments should be made only by leave of court 1. When the cause of action, defense or theory of the
even if the ot her party has not yet served a responsive case is changed;
pleading. 2. Amendment is intended to confer jurisdiction to the
court;
Instances when amendment is a matter of right: 3. Amendment to cure a premature or non -existing
1. Amendment of complaint before an answer is filed; cause of action; and
2. Amendment of ans wer before a reply is filed or before 4. Amendment for purposes of delay.
the period for filing a reply expires;
3. Amendment of reply any time within 10 days after it is SECTION 4. FORMAL AMENDMENT
served; and A defect in the designation of the parties and other
4. Formal amendment. clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the
Note: A motion to dismiss is not a responsive pleading. action, at its initiative or on motion, provided no
As such, an amendment after the denial of a motion to prejudice is caused to the adverse party.
dismiss is still considered as a matter of right. Hence, it
may be done without leave of court.

SECTION 5. AMENDMENT TO CONFORM TO Amended Pleading Supplemental

OR AUTHORIZE PRESENTATION OF Pleading
EVIDENCE (This is significant especially in relation to Refers to facts existing at Refers to facts arising
Evidence.) the time of t he after the filing of t he
When issues not raised in the pleadings are tried with commencement of the original pleading.
the express or implied consent of parties: action.
1. They shall be treated as if raised in the pleadings;
Takes the place of the Taken together with
2. Pleadings may be amended to conform to the
original pleading. the original pleading.
evidence; and
3. Failure to amend does not affect the result of the trial Can be made as a matter Always with leave of
of these issues. of right as when no court.
responsive pleading has
Note: In Mercader v. Development Bank of the Phils. yet been filed.
(Cebu Branch), the Court explained that the foregoing When an amended A supplemental
provision envisions two scenarios -- first, when pleading is filed, a new pleading does not
evidence is introduced on an issue not alleged in the copy of the entire require the filing of a
pleadings and no objection was interjected and s econd, pleading must be filed, new copy of the entire
when evidenc e is offered on an issue not alleged in the incorporating the pleading.
pleadings but this time an objection was amendments, which shall
interpolated. In cases where an objection is made, the be indicated by
court may nevertheless admit the evidence where the appropriate marks.
adverse party fails to satisfy the court that the
admission of the evidence would prejudice him in SECTION 7. FILING OF AMENDED
maintaining his defense upon the merits, and the court
PLEADINGS
may grant him a continuance to enable him t o meet the
An amendment which merely supplements and
new situation created by the evidenc e (Azolla Farms v.
amplifies facts originally alleged in the complaint relates
Court of Appeals, G.R. No. 138085, November 11,
back to the date of the commencement of the action
2004).
and is not barred by the Statute of Limitations which
expired after servic e of the original complaint (V erzosa
Note: At the time of the filing of the complaint, the
v. Court of Appeals, G.R. No 119511 -13, November 24,
cause of action must actually exist. If cause of action
1998).
accrues after the filing then a party cannot avail of this
remedy.
SECTION 8. EFFECT OF AMENDED PLEADING
Legal basis: (“Nihil de re accrescit ei qui nihil in re
quando jus accresceat habet”) That which has no Effect of amended pleading
cause of action cannot by amendment or supplemental 1. An amended pleading supersedes the pleading that it
pleading be converted in a cause of action. amends;
2. Admissions in the superseded pleading can still be
Illustration: received in evidence against the pleader but as an
The plaintiff sues the defendant before the maturity of extrajudicial admission which must be formally
the loan. Clearly, there is no c ause of action when the offered in evidence and proved;
complaint was filed. Thus, if the loan matures after the 3. Claims or defens es alleged therein but not
filing of the complaint, there is nothing that will conform incorporated or reit erat ed in the amended pleading
to evidence since there is no cause of action in the first are deemed waived.
place.
SECTION 6. SUPPLEMENTAL PLEADINGS RULE 11

WHEN T O F ILE RESPONSIVE
Supplemental Pleadings
Those which aver facts occurring after the filing of the P LEADINGS
original pleadings and which are mat erial t o the
matured claims and/or defenses therein alleged
SECTION 1. ANSWER TO THE COMPLAINT
(Herrera, Vol.1, p. 603).
SECTION 2. ANSWER OF A DEFENDANT
The cause of action stated in the supplemental FOREIGN PRIVATE JURIDICAL ENTITY
complaint must be the same as that stated in the
original complaint. Ot herwise, the c ourt should not Answer to a complaint
admit the supplemental complaint (Asset Privatization
1. Within 15 days after service of summons, unless a
Trust v. Court of Appeals, G.R. No. 121171, December
29, 1998). different period is fixed by the Court;
2. In case the defendant is a foreign privat e juridical
entity:

a. If it has a resident agent – Within 15 days aft er SECTION 7. ANSWER TO SUPPLEMENTAL

service of summons to him; COMPLAINT
b. If it has no resident agent, but it has an agent or Answer t o a supplemental complaint must be filed
officer in the Philippines – Within 15 days aft er within 10 days from notice of the order admitting the
service of summons to said agent or officer; same unless a different period is fixed by the court.
c. If it has no resident agent nor agent nor officer – in
which case service of summons is to be made on SECTION 8. EXISTING COUNTERCLAIM OR
the proper government office (now the SEC) which CROSS-CLAIM
will then send a copy thereof by registered mail
within 10 days to the home office of the foreign SECTION 9. COUNTERCLAIM OR CROSS-
private corporation – within 30 days after receipt of
CLAIM ARISING AFTER ANSWER
summons by the home office of the foreign private
entity.
3. In case of service of summons by publication – Within SECTION 10. OMITTED COUNTERCLAIM OR
the time specified in the order granting leave to s erve CROSS-CLAIM
summons by publication, which shall not be less than Counterclaims or cross-claims omitted through
60 days after notice (Sec. 15, Rule 14); and oversight, inadvertence, or excusable neglect or when
4. In case of a non-resident defendant on whom justice requires may be set up by amendment before
extraterritorial service of summons is made, the judgment. Leave of court is necessary.
period to answer should be at least 60 days.
SECTION 11. EXTENSION OF TIME TO PLEAD
The court may extend the time to file the pleadings
but may not shorten them (Except: in Quo Warranto Requisites:
proceedings). 1. There must be a motion;
2. With service of such motion to other party; and
SECTION 3. ANSWER TO AMENDED COMPLAINT 3. On such terms as may be just.
1. If t he filing of an amended complaint is a matter of
right – Within 15 days from service of the amended
complaint.
RULE 12
2. If the filing of the amended complaint is not a matter B ILL OF P ART ICULARS
of right – Within 10 days counted from notice of the
court order admitting the same. This is so bec ause
SECTION 1. WHEN APPLIED FOR; PURPOSE
the responding party was already served with a copy
of the proposed amended complaint.
Bill of Particulars
The Rule s hall apply to the ans wer t o an amended It is a more definite statement of any matter which is not
averred with sufficient definiteness or particularity.
counterclaim, amended cross-claim, amended third
(fourt h, etc.-party complaint, and amended complaint-
Purpose: To aid in the preparation of a responsive
in-intervention). pleading.
If no new answer is filed, answer to original pleading
An action cannot be dismissed on the ground that the
shall be deemed as answer t o the amended
complaint is vague or indefinite. The remedy of the
pleading. defendant is to move for a bill of particulars or avail of
SECTION 4. ANSWER TO COUNTERCLAIM OR the proper mode of discovery (Galeon v. Galeon, G.R.
No. L-30380, February 28, 1973).
CROSS-CLAIM
A counterclaim or cross-claim must be answered within The motion for bill of particulars shall be filed before
responding to a pleading. Hence, it must be filed within
10 days from service.
the period granted by the Rules (Rule 11) for the filing
SECTION 5. ANSWER TO THIRD (FOURTH, of a responsive pleading.
ETC.)-PARTY COMPLAINT
The Motion shall point out:
The third-party defendant is served with s ummons just
1. The defects complained of;
like the original defendant. Hence, he also has 15, 30,
2. The paragraphs wherein they are contained; and
or 60 days from service of summons, as the case may
3. The details desired.
be, to file his answer.
The motion must comply with the requirements for
SECTION 6. REPLY
motions under Sec. 4, 5 and 6 of Rule 15. Otherwise
A reply may be filed within 10 days from service of the the motion will not suspend the period to answer
pleading responded to.
(Filipino Fabricator v. Magsino, G.R. No. 47574,
January 29, 1988).

Note: A motion for bill of particulars is not directed only SECTION 6. BILL A PART OF PLEADING
to a complaint. It is a motion that applies to any
pleading which in the perception of the movant contains A Bill of Particular becomes part of the pleading for
ambiguous allegations (Riano, p. 306). which it is intended
SECTION 2. ACTION BY COURT

RULE 13
The court may either: F ILING AND S ERVICE OF
1. Deny;
2. Grant it outright; or
P LEADINGS , J UDGM ENT S AND
3. Allow the parties the opportunity to be heard. O T HER P APERS
Supposing the motion for a bill of particulars is SECTION 1. COVERAGE
denied. Is there any remedy left for the party a sking
for a bill of particulars? Yes. A party may resort to SECTION 2. FILING AND SERVICE, DEFINED
discovery (See Rule 23). Notice given to a party who is duly repres ented by
counsel is a nullity, unless service thereof on the party
SECTION 3. COMPLIANCE WITH ORDER himself was ordered by the court or the technical defect
was waived.
Period to comply with order granting the motion:
Ten (10) days from notice of order unless a different Where party is represented by more than one counsel
period is fixed by the court. of record, servic e of notice on any of the latter is
sufficient.
The Bill of P articulars may be filed either in a separate
or in an amended pleading, serving a copy thereof on If there are 5 defendants in the same case and there is
the adverse party. only one lawyer for all, is the lawyer entitled to 5
copies? No. Where one counsel appears for several
SECTION 4. EFFECT OF NON-COMPLIANCE parties, he shall only be entitled to one copy of any
paper served upon him by the opposite side (S ec.2,
Effect of non-compliance: Rule 13 Last paragraph).
1. If the Order is not obeyed or in c ase of ins ufficient Filing

compliance therewith, the court: This refers to the act of presenting the pleading or other
a. May order the striking out of the pleading or the papers to the clerk of court.
portion thereof to which the order is directed; or
b. Make such order as it may deem just. SECTION 3. MANNER OF FILING
2. If the plaintiff fails to obey, his complaint may be 1. Personal service by presenting the original copies
dismissed with prejudice unless otherwise ordered thereof, plainly indicated as such, to the clerk of
by the court (Sec. 4, Rule 12; Sec. 3, Rule 17); court; or
3. If defendant fails to obey, his answer will be stricken 2. Registered mail.
off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff (Rule Filing by mail should be t hrough the registry service
12, Section 4; Rule 17, Section 4; Rule 9, Section 3). which is made by deposit of the pleading in the post
office, and not through other means of transmission.
SECTION 5. STAY OF PERIOD TO FILE
RESPONSIVE PLEADING If a privat e carrier is availed of by the party, the date of
actual receipt by the court of such pleading and not the
Effects of Motion date of delivery to the private carrier, is deemed to be
1. If t he motion is granted, in whole or in part, the the date of the filing of that pleading (Benguet Electric
movant can wait until the bill of particulars is served Cooperative, Inc. v. NLRC, G.R. No. 89070 May 18,
on him by the opposing party and then he will have 1992).
the balance of the reglement ary period within which
to file his responsive pleading; and SECTION 4. PAPERS REQUIRED TO BE FILED
2. If his motion is denied, he will still have such balance AND SERVED: (PAMNOJ-DORS)
of the reglement ary period to file his res ponsive 1. Pleading subsequent to the complaint;
pleading, counted from service of the order denying 2. Appearance;
his motion. 3. Written motion;
4. Notice;
Note: In either case, he shall have not less than 5 5. Order;
days to file his responsive pleading. 6. Judgment;
7. Demand;
8. Offer of Judgment;

9. Resolution; or Personal service and filing: This is the general rule,

10. Similar papers. and resort to other modes of service and filing is the
exception.
SECTION 5. MODES OF SERVICE
1. Personal Service (Section 6) Except papers emanating from the court, a resort to
a. Delivering pers onally a copy to the party, who is not modes other than by personal service must be
represented by a counsel, or to his counsel; or accompanied by a written explanation why the service
b. Leaving a copy in counsel’s office with his clerk or or filing was not done personally.
with a person having charge thereof; or
c. Leaving the copy between 8 a.m. and 6 p.m. at the SECTION 12. PROOF OF FILING
party’s or counsel’s residence, if known, with a The filing of a pleading or paper is proved by its existence
person of sufficient age and discretion then residing in the record. If it is not in the record,
therein - If no pers on is found in his office, or if his a. If filed personally: Proved by the written or stamped
office is unknown, or if he has no office. acknowledgment of its filing by the clerk of court on a
copy of the same; or
2. Service By Mail (Section 7) b. If filed by registered mail: Proved by the registry receipt
a. Registered mail - Service by registered mail shall be and the affidavit of the person who did the mailing with a
made: full statement of:
i. By depositing the copy in the post office, i. The date and place of depositing the mail in the post
ii. In a sealed envelope, office in a sealed envelope addressed to the court;
iii. Plainly addressed to the party or his counsel at his ii. With postage fully prepaid; and
office, if known, iii. With instructions to the postmaster to return the mail
iv. Otherwise at his residence, if known, to the sender after 10 days if undelivered.
v. With postage fully pre-paid, and
vi. With instructions to the postmaster to return the SECTION 13. PROOF OF SERVICE
mail to the sender after 10 days if undelivered. a. Proof of personal service – shall consist of:
i. The written admission of the party served; or
b. Ordinary mail – If no register service is available in the ii. The official return of the server; or
locality of either the sender or the addressee, service iii. The affidavit of the party serving containing full
may be done by ordinary mail. information of the date, place and manner of the
3. Substituted Service (Section 8) – By delivery of the service.
copy to the clerk of court with proof of failure of both b. Proof of servic e by registered mail – shall be shown by
personal and service by mail. the affidavit of the mailer showing compliance wit h Sec. 7
of Rule 13 and the registry receipt issued by the mailing
SECTION 9. SERVICE OF JUDGMENT, FINAL office. The registry return card shall be filed immediately
ORDERS, OR RESOLUTIONS upon its receipt by the sender, or in lieu t hereof of the
1. By personal service; unclaimed lettter together with the certified or sworn copy
2. By registered mail; or of the notice given by the postmaster to the addressee.
3. By publication, if party is summoned by publication c. Proof of service by ordinary mail – service shall be proved
and has failed to appear in the action. by the affidavit of the mailer s howing compliance with
Sec. 7 of Rule 13.
Note: No substituted service.
SECTION 14. NOTICE OF LIS PENDENS
Service
It is the act of providing a party wit h a copy of the Lis Pendens
pleading or paper concerned. It refers to a notice of a pendency of the action between
the parties involving title to or right of possession over
SECTION 10. COMPLETENESS OF SERVICE real property.
a. Personal Service – is deemed complete upon actual
delivery. Requisites:
b. Service by way of registered mail – is deemed complete 1. Action affects the title or the right of possession of the
upon actual receipt by the addressee or after 5 days from real property;
the date he received the first notice of the postmaster, 2. Affirmative relief is claimed;
whichever is earlier. 3. Notice shall contain the name of the parties and the
c. Service by ordinary mail – is deemed complete upon the object of the action or defense and a description of
expiration of 10 days aft er mailing unless the court the property affected thereby; and
otherwise provides. 4. Action in rem (AFP Mutual Benefit Association, Inc. v.
d. Substituted servic e – is complete at the time of the Court of Appeals, G.R. No.104769, March 3, 2000).
delivery of the copy to the clerk of court.
This serves as a warning to all persons that a particular
SECTION 11. PRIORITIES IN MODES OF real property is in litigation, and that one who acquires
SERVICE AND FILING an interest over said property does so at his own risk,

or that he gambles on the result of the litigation over Jurisdiction over the person of the defendant in a civil
said property (Lee Tek Sheng v. Court of Appeals, G.R. case is acquired eit her by his voluntary appearance or
No. 115402, July 15, 1998). service of summons upon him (Minucher v. Court of
Appeals, G.R. No.142963, February 11, 2003).
The defendant may also record a notice of lis pendens
when he claims an affirmative relief in his answer. Summons
It is the writ by whic h the defendant is notified of the
Note: Section 76 of P.D. No. 1529 provides that no action brought against him (Cano-Gutierrez v.
action to recover possession of real estate, or to quiet Gutierrez, G.R. No. 138584, October 2, 2000).
title thereto, or to remove clouds upon the title thereof,
or for partition, or other proceedings of any kind in court The issuance of summons is not discretionary on the
directly affecting the title to land or the use or part of the court or clerk of court but is a mandatory
occupation thereof or the buildings thereon, and no requirement.
judgment, and no proceeding to vacate or reverse any
judgment, shall have any effect upon registered land as Purpose of summons
against pers ons other t han the parties thereto, unless a A. Actions in Personam:
memorandum or notice stating the institution of such 1. To acquire jurisdiction over the person of the
action or proceeding and the court wherein the same is defendant in a civil case; and
pending, as well as the date of the institution thereof, 2. To give notice to the defendant that an action has
together with a reference to the number of the been commenced against him (Right to Due
certificate of title, and an adequate description of the Process).
land affected and the registered owner thereof, shall B. Actions in Rem and Quasi in Rem: Not to
have been filed and registered. acquire jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process.
Notice of lis pendens cannot be cancelled on an ex Jurisdiction over the defendant is not required and
parte motion or upon the mere filing of a bond by the the court acquires jurisdiction over an action as long
party on whose title the notice is annotated, as Section as it acquires jurisdiction over the res (Riano, p.273).
14 provides that such cancellation may be authorized
only upon order of court, after proper showing that: Effect of non-service: Unless the defendant voluntarily
1. The notice is for the purpose of molesting the submits to the jurisdiction of the court, non -service or
adverse party; or irregular service of summons renders null and void all
2. It is not necessary to prot ect the rights of the party subsequent proceedings and issuances in the action
who caused it to be recorded. from the order of default up to and including the
judgment by default and the order of execution.
Note: File for cancellation of the notice of lis pendens
only during the pendency of the case and not if it is The non-service or invalidity of service of summons
already final and executory pursuant to PD No. 1529 may be a ground for dismissal, for lack of jurisdiction
Section 77. over the person of the defending party.
Service and filing of pleadings by courier service is a Note: Where the defendant has already been served
mode not provided in the Rules. Since there was no with summons on the original complaint, no further
motion for rec onsideration properly and timely filed, the summons is required on the amended complaint if it
judgment against the defendant became final and does not introduce new causes of action (Ong Peng v.
executory. (Palileo v. Planters Dev‟t Bank, 8 October Custodio, G.R. No. 14911, March 25, 1961).
2014)
But where the defendant was declared in default on the
Service of judgment on security guard of building where original complaint and the plaintiff subs equently filed an
counsel’s office is loc ated is valid and binding. amended complaint, new summons must be served on
(Mendoza v. Court of Appeals, 15 July 2015). the defendant on the amended complaint, as the
original complaint was deemed wit hdrawn upon such
Service of notice of pretrial on OSG binding even if no amendment (Atk ins v. Domingo, G.R. No. L-19565,
notice was sent to the deputized counsel. (Republic v. March 24, 1923).
Viaje, 27 January 2016).
General Rule: When an additional defendant is joined,
Service of resolution denying MR upon collaborating summons must be served upon him.
counsel already binds client. (Philippine Asset Growth
Two Inc. v. Fastech Synergy Phils. Inc., 28 June 2016). Exceptions:
1. When the administrator of a deceased party
defendant substitutes the deceased;
RULE 14 2. Where upon the death of the original defendant his
infant heirs are made parties; and
S UM M ONS 3. In cases of substitution of the deceas ed under Sec.
16 of Rule 3.
sheriff for servic e. The Sheriff’s Return provides data

Note: In thes e instances, the service of the Order of to the Clerk of Court, which the clerk uses in the
Substitution is sufficient. Monthly Report of Cases to be submitted to the Office
of the Court Administrator within the first ten (10)
SECTION 1. CLERK TO ISSUE SUMMONS days of the succeeding month. Thus, one month
Summons to be issued: from the issuance of summons can be considered
1. Upon the filing of the complaint; and “reasonable time with regard to pers onal service on
2. Payment of the requisite legal fees. the defendant (Collado-Lacorte v. Rabena, A.M. No.
P-09-2665, August 4, 2009).
SECTION 2. CONTENTS 2. The efforts exert ed to locate the person to be served;
and
SECTION 3. BY WHOM SERVED 3. Service upon a person of sufficient age and discretion
Summons may be served by: residing in the same place as defendant or some
1. Sheriff; competent person in charge of his office or regular
2. Sheriff’s deputy; or place of business.
3. Other proper court officers; or
4. For justifiable reasons, by any suitable person In substituted service, the sheriff’s return must show
authorized by the court issuing the summons. that an effort or attempt was exerted to personally
serve the summons on the defendant and that the
Note: The enumeration is exclusive. same had failed (Spouses Venturanza v. Court of
Appeals, G.R. No. 77760, December 11, 1987).
SECTION 4. RETURN
For substituted service of summons to be available,
there must be several attempts by the sheriff to
SECTION 5. ISSUANCE OF ALIAS SUMMONS personally serve the summons within a reasonable
period [of one month] which eventually resulted in
Alias Summons failure to prove impossibility of prompt service.
It is one issued when the original has not produced its
effect because of a defect in form or in the manner of “Several attempts” means at least three (3) tries,
service, and when issued, supersedes the first writ. preferably on at least two different dates (Collado-
Lacorte v. Rabena, A.M. No. P-09-2665, August 4,
Modes of service summons 2009).
A. Service in person on defendant (Sec. 6)
1. By handing a copy of summons to him; or C. Publication (Section 14)
2. By tendering it to him if he refuses to receive it. Requisites:
1. Defendant’s identity or whereabouts are unk nown
B. Substituted Service (Sec. 7)
and cannot be ascert ained by diligent inquiry (but
Only when service in person cannot be made he is in the Philippines); and
promptly and after all efforts to do so are exerted, 2. There must be leave of court.
may substituted service be resorted to.
Summons by way of publication may wit h leave of court
1. By leaving copies of the summons at the
be availed of where a defendant involved in any action
defendant’s residence with some person of suitable
age and discretion residing therein; or (in rem, quasi in rem and in personam ) is designated as
2. By leaving the copies at defendant’s offic e or an unknown owner or whenever his whereabouts are
regular place of business with some competent unknown and cannot be ascertained. The summons
person in charge thereof. shall be effected through publication in a newspaper of
general circulation and in such places and for such time
For substituted service of summons to be valid, it is as the court sets.
necessary to establish the following:
1. The impossibility of the personal service of summons In Santos v. PNOC (G. R. No. 170943, September 23,
within a reasonable time; 2008), the Supreme Court held that the in rem/in
personam distinction was significant under the old rule
Note: Reasonable time is defined as “so much time because it was silent as to the kind of action to which
as is necessary under the circumstances for a the rule was applicable. Because of this silence, the
reasonably prudent and diligent man to do, court limited the application of the old rule to in rem
conveniently, what the contract or duty requires that actions only. This has been changed. The present rule
should be done, having regard for the rights and expressly states that it applied to any action where the
possibility of loss, if any, to the other party.” defendant is designated as unknown owner, or the like,
or whenever his whereabouts are unknown and cannot
To the sheriff, “reas onable time” means 15 to 30 days
be ascert ained by diligent inquiry. Thus, it now applies
because at the end of the month, it is a practice for
the branch clerk of court to require the sheriff to to any action, whether in personam, in rem or quasi-in
submit a return of the summons assigned to the rem.

If property is attached and later the defendant appears Defendant Service of Summons
(and voluntarily submits to the jurisdiction of the court), of the Department of Foreign
the case becomes mainly a suit in personam (Villareal v. Affairs;
Court of Appeals, G.R. No. 107314, September. 17, b. By publication once in a newspaper
1998). of general circulation in the country
where the defendant may be found
Note: Summons is validly served if it is left with some and by serving a copy of the
person of suitable age and discretion then residing in summons and the court order by
the defendant’s residence, even if defendant was registered mail at the last known
abroad at that time. The fact that the defendant did not address of the defendant;
actually receive the summons did not invalidate the c. By facsimile or any recognized
service of such summons (Montalban v. Maximo, G.R. electronic means that could
No. 22997, March 15, 1968). generate proof of service; or
d. By such other means as the court
may in its discretion direct.
Service of summons on different entities
Public In case the defendant is the Republic
Defendant Service of Summons corporations of the Philippines – By serving upon
Entity w/o Upon any or all the defendants being (Section 13) the Solicitor General
juridical sued under common name; or person
personality in charge of the office. In case of a province, city or
(Sec. 8) municipality, or like public
Minors and In Case Of Minors: By serving upon corporations – by serving on its
Incompetents the minor, regardless of age, and executive head or on such other
(Sec. 10) upon his legal guardian, or also upon officer or officers as the law or the
either of his parents. court may direct.
In Case Of Inc ompetents: By serving

on him personally and upon his legal SECTION 14. SERVI CE UPON DEFENDANT WHOS E
guardian, but not upon his parents, IDENTITY OR WHEREABOUTS ARE UNKNOWN
unless they are his legal guardians.
SECTION 15. EXTRATERRITORIAL SERVICE
In any event, if the minor or SECTION 16. RESIDENTS TEMPORARILY OUT OF
incompet ent has no legal guardian, THE PHILIPPINES
the plaintiff must obtain the
appointment of a guardian ad litem for Service of
him. Defendant Action
Summons
Prisoner Serve on officer having management
(Sec. 9) of the jail or prison (warden).
With leave of
Domestic To the president, managing partner, court, by
private general manager, corporate secretary, Resident but
Any action (in publication in a
juridical treasurer, or in-house counsel. identity or
rem, in news paper of
entity whereabouts
personam or general
(Sec. 11) Note: Service upon a person other unknown
quasi in rem) circulation.
than those mentioned is invalid and (Sec. 14)
does not bind the corporation.
The enumeration is exclusive. In rem or quasi Extraterritorial
Foreign If registered in t he Philippines, serve in rem. It either: Service:
private on the resident agent; or if none; on [AREA] a. With leave of
juridical the government official designated by a. Affects the court serve
entity law; or on any officer or agent of the personal outside the
(Section 12 corporation within the Philippines. Not a status of Phil. by service
as amended If the foreign privat e juridical entity is resident and plaintiff; in person; or
by A.M. No. not registered in the Philippines or has is not found b. Relat es to or b. With leave of
11-3-6-SC, no resident agent, service may, with in the the subject of court serve by
March 15, leave of court, be effected out of the Philippines which is publication in a
2011 ) Philippines through any of the property news paper of
following means: (Sec. 15) within the general
a. By personal service cours ed Philippines in circulation, in
through the appropriate court in t he which which case
foreign country with the assistance defendant copy of the
has a lien or summons and

Service of SECTION 18. PROOF OF SERVICE

Defendant Action
Summons
The proof of service shall be made in writing by the
interest; order of c ourt server and shall state t he manner, place and date of
c. Demands a must also be service, specify any accompanying papers and the
relief which sent by name of the pers on who rec eived the summons. It shall
consists registered mail be sworn to if made by a person other than a sheriff or
wholly or in to the last his deputy.
part in known address
excluding the of defendant; SECTION 19. PROOF OF SEVICE BY
defendant or PUBLICATION
from any c. Any other
interest in any manner the A. Affidavit of the print er, his foreman or principal clerk,
property court deem or of the edit or, business or advertising manager, to
within the sufficient. which affidavit a copy of the publication shall be
Phil; or attached; and
d. Property of B. Affidavit showing the deposit of a copy of the
defendant summons and order for publication in the post office,
has been postage prepaid directed to the defendant by
attached in registered mail to his last known address.
the
Philippines.
Substituted SECTION 20. VOLUNTARY APPEARANCE
service or with
leave of court, Where the defendant makes a voluntary appearance in
personal service the action it shall be the equivalent to service of
out of the Phil. as summons and jurisdiction is acquired over him.
under Submission to the court’s jurisdiction takes the form of
extraterritorial an appearance t hat seeks affirmative relief, except
service when the relief sought is for the purpos e of objecting to
the jurisdiction of the court over the pers on of the
Note: In all these defendant even if other grounds are included in a
cases, it should motion to dismiss. This is also known as special
be noted that, appearance.
Resident Any action (in defendant must
temporarily rem, in be a resident of
out of the personam or the Philippines. RULE 15
Philippines quasi- in rem) Otherwise, an
action in
M OT IONS
(Sec. 16)
personam cannot
be brought SECTION 1. MOTION, DEFINED.
because
jurisdiction over
Motion
his person is
This refers to an application for relief other than by a
essential to make
pleading. A motion is not a pleading.
a binding
decision (Belen
v. Chavez, G.R. Pleading Motion
No. 175334, Purpose: To submit a Purpose: To apply for an
March 28, 2008). claim or defense for order not included in the
appropriate judgment. judgment.
Can servi ce of summons be effected by means of Cannot be initiatory as
fax (facsimile) transmi ssion or e -mail? Yes. Sec. they are always made in
May be initiatory.
12(c), Rule 14, allows it provided that there is means a case already filed in
that could generate proof of service. court.
Always filed before May be filed even after
judgment. judgment.
Note: This applies only to foreign private juridical
Only 9 kinds of pleading Any application for relief
entities that are not registered in the Philippines or has
are allowed by the not by a pleading is a
no resident agent. Rules. motion
SECTION 17. LEAVE OF COURT May be oral when made
Must be written.
in open court or in the

course of a hearing or c. Motions agreed upon by the parties to be heard on

trial. shorter notice or jointly submitted by the parties; and
d. Motions for summary judgment which must be served
Kinds of Motions at least 10 days before its hearing (Regalado, Vol. 1,
1. Motion ex part e - is made without the presence or a p. 264).
notification to the other party because the question
generally presented is not debatable (i.e. Motion for 5. Proof of service (Sec. 6).
extension of time to file pleadings).
2. Motion of course - is where the movant is entitled to Note: Any motion that does not comply with Sections
the relief or remedy sought as a matter of discretion 4, 5 and 6 of this Rule (Requirements 4 and 5) is a
on the part of the court. mere scrap of paper.
3. Litigated Motion - is the one made with notice to the
adverse party to give an opportunity to oppose (i.e. It does not interrupt the reglementary period for the
Motion to dismiss). filing of the requisite pleading.
4. Special Motion - is a motion addressed to the
discretion of the court. SECTION 7. MOTION DAY
Except motions requiring immediate action, all motions
General Rule: A motion cannot pray for judgment. shall be scheduled for hearing on Friday afternoons, or
if Friday is a nonworking day, in the afternoon of the
Exceptions: next working day.
1. Motion for judgment on the pleadings;
2. Motion for summary judgment; and Note: No motion day in the Supreme Court.
3. Motion to dismiss (judgment of dismissal).
SECTION 8. OMNIBUS MOTION
SECTION 2. MOTION MUST BE IN WRITING
Omnibus Motion Rule
General Rule: Motions must be in writing. A motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available.
Exceptions: Those made in open court or in the course Objections not included shall be deemed waived except
of hearing or trial. the defenses referred in S ec. 1, Rule 9 (See Rule 16 on
Motion to Dismiss).
SECTION 3. CONTENTS
SECTION 9. MOTION FOR LEAVE
Contents of the Motion:
1. The relief sought to be obtained; SECTION 10. FORM
2. The ground upon which it is based; and
3. If required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavits and other papers.
RULE 16
M OT ION T O D ISM ISS
Requisi tes of a Motion (not made in open court or in
the course of a hearing or trial):
1. It must be in writing; Motion to Dismiss
2. Hearing of motion set by the applicant; It is not a responsive pleading. It is not a pleading at
Except for motions which the court may act upon all.
without prejudice to the rights of the adverse party (ex
parte motions), every written motion shall be set for It is subject to the omnibus motion rule since it is a
hearing by the applicant. motion that attacks a pleading. Hence, it must raise all
objections available at the time of the filing thereof.
3. Notice of hearing shall be addressed to all parties
concerned. Date of hearing must not be later than 10 However, the following grounds are not deemed waived
days from the filing of the motion (Sec. 5); (RLPJ):
4. Motion and notice of hearing must be served at least 1. Res judicata;
3 days before the dat e of hearing (Three Day Notice 2. Litis pendentia;
Rule); 3. Prescription; and
4. Lack of jurisdiction over the subject matter (S ec.1,
Exceptions to the three day notice rule: Rule 9).
a. Ex-Parte Motions – one which does not require that
the parties be heard and which the c ourt may act General Rule: A court may not motu proprio dismiss a
upon without prejudicing the rights of the other party. case unless a motion to that effect is filed by a party
b. Urgent motions; thereto.

Exceptions: the phrase “claim or demand deemed set forth in the

1. Those cases where t he court may dismiss a case plaintiff’s pleading” is broad enough to include within its
motu proprio (Sec. 1, Rule 9); ambit the defense of bar by lac hes (Pineda v. Heirs of
2. Sec. 3, Rule 17 (Failure to prosecute); and Eliseo Guevarra, G.R. No. 168557, February 19, 2007).
3. Rule on Summary Procedure (Section 4, 1991,
Revised Rule on Summary Procedure). Note: A motion to dismiss hypothetically admits the
truth of the facts alleged in the complaint. Such
Motion to Dismiss admission, however, is limited only t o material and
Motion to Dismiss Under Rule 33 relevant facts which are well pleaded in the complaint
Under Rule 16 (Demurrer To (Regalado, p. 271).
Evidence)
Requisites of Litis Pendentia
Grounded on Based on insufficiency
1. Identity of parties or at least such parties representing
preliminary objections. of evidence.
the same interests in both actions;
May be filed by any May be filed only by the 2. There is substantial identity in the cause of action and
defending party against defendant against the relief sought, the relief being founded on the same
whom a claim is complaint of the plaintiff. facts; and
asserted in the action. 3. The identity in the two cases should be such that any
Should be filed within May be filed only aft er judgment that may be rendered in one, regardless of
the time for but prior to the plaintiff has which party is successful, would amount to res
the filing of the answer completed the judicata in the other case.
of the defending party to presentation of his
the pleading asserting evidence. Note: It is applicable between the same parties only
the claim against him. when the judgment to be rendered in the action first
If denied, defendant If denied, defendant instituted will be such that, regardless of which party is
successful, it will amount to res judicata against the
must file an ans wer, or may present evidence.
else he may be declared If granted, plaintiff second action (HSBC v. Aldecoa & Co., G.R. No. L-
in default. appeals and the Order 8437, March 23, 1915).
If grant ed, plaintiff may of the dismissal is
appeal or if subsequent reversed, the defendant A motion to dismiss may be filed in either suit, not
case is not barred, he loses his right to necessarily in the one instituted first (Magsaysay v.
Magsaysay, et al., L-49847, July, 17, 1980).
may re-file the case. present evidence.
Requisites of res judicata
Types of dismissal of action 1. Previous final judgment or order;
1. Motion to dismiss before answer under Rule 16; 2. Jurisdiction over the subject matter and t he parties by
2. Motion to dismiss under Rule 17; the court rendering it;
a. Upon notice by plaintiff; 3. Judgment upon the merits; and
b. Upon motion by plaintiff; or 4. There must be identity of parties, of subject matter,
c. Due to fault of plaintiff. and of cause of action between the first and second
3. Motion to dismiss called a demurrer to evidence after actions.
plaintiff has completed the presentation of his
evidence under Rule 33; and Note: There could be res judicata without a trial, such
4. Dismissal of an appeal. as in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of dismissal
SECTION 1. GROUNDS (D-SILL-RPF-CUN) under Section 3 of Rule 17.
1. No jurisdiction over the person of the defending party;
2. No jurisdiction over the subject matter of the claim; Prescription: A motion to dismiss on the ground of
3. Improper venue; prescription will be given due course only if the
4. No legal capacity to sue; complaint shows on its face that the action has already
5. Litis pendentia; prescribed.
6. Res judicata;
7. Prescription;
Prescription Laches
8. Failure to state a cause of action;
9. Claim or demand has been paid, waived, abandoned, It is concerned with the It is concerned with the
or otherwise extinguished; fact of delay. effect of delay.
10. Claim is unenforceable under the Statute of It is a matter of time. It is a matter of equity.
Frauds; and Statutory. Non-statutory.
11. Non-compliance with a condition precedent for
filing claim. Applies at law. Applies in equity.
Based on fixed time. Not based on fixed time.
The language of the rule, particularly on the relation of
the words “abandoned” and “otherwise extinguished” to

Complaint state s no cause of action: When the If the pleading is ordered to be amended, the defendant
ground for dismissal is that the complaint states no shall file his answer within the period prescribed by
cause of action, such fact can be determined only from Rule 11 from service of amended pleading unless the
the facts alleged in the complaint (Mindanao Realty court provides a longer period.
Corp. v. Kintanar, et al., L-17152, November 30,
1962). SECTION 5. EFFECT OF DISMISSAL
Failure to state a cause of action and not lack or General Rule: The action or claim may be re-filed.
absence of cause of action is the ground for a motion
to dismiss. The former means there is insufficiency in Exception: The action cannot be re-filed if it was
the allegations in the pleading while the latter refers to dismissed on any of these grounds: (PURE)
the failure to prove or to establish by evidence one’s 1. Prescription;
stated cause of action (Riano, p. 89). 2. Unenforceability under the Statute of Frauds
3. Res judicata; and
Effects of Action on 4. Extinguishment of the claim or demand;
Remedy
Motion to Dismiss
Order granting motion Re-file the complaint. In these instances, the remedy of the plaintiff is appeal.
to dismiss is a final
order (without SECTION 6. PLEADING GROUNDS AS
prejudice). AFFIRMATIVE DEFENSES
If no motion to dismiss had been filed, any of the
Order granting motion Appeal.
grounds for dismissal provided for in Rule 16, including
to dismiss (with
improper venue, may be pleaded as affirmative
Prejudice).
defenses in t he answer and a preliminary hearing may
Order denying the File answer and proceed be had thereon in the discretion of the court.
motion to dismiss is with the trial, if decision
interlocutory. is adverse, appeal Note: If t he defendant would want to file a
therefrom and raise as counterclaim, he should not file a motion to dismiss.
error the denial of the Instead, he should allege the grounds of a motion to
motion to dismiss. If dismiss as affirmative defenses in his ans wer with a
there is grave abuse of counterclaim. A preliminary hearing may be had
discretion amounting to thereon, and in the event the complaint is dismissed,
lack or excess of the defendant can prosecute his counterclaim.
jurisdiction, Certiorari or
Prohibition may lie under nd
The 2 paragraph of S ection 6 clearly provides that the
Rule 65. dismissal of the complaint is without prejudice to the
prosecution of the counterclaim.
Non-Compliance with a condition precedent: Non-
compliance with P.D. No. 1508 (Katarungang
Pambarangay Law) may result in dismissal of the case RULE 17
on the ground of non-compliance with a condition
precedent. D ISM ISSAL OF ACT IONS
SECTION 2. HEARING OF MOTION
SECTION 1. DISMISSAL UPON NOTICE BY
PLAINTIFF
SECTION 3. RESOLUTION OF MOTION
Dismissal is effected not by motion but by mere notice
The court may:
of dismissal which is a matter of right before t he service
1. Dismiss the action;
of:
2. Deny the motion; or
1. The answer; or
3. Order the amendment of the pleading
2. A motion for summary judgment.
Note: In resolving motion to dismiss, the court is
Note: The dismissal as a matter of right ceases when
required to give reasons for its resolution.
an answer or a motion for summary judgment is served
on the plaintiff and not when the answer or the motion
SECTION 4. TIME TO PLEAD
is filed with the court. Thus, if a notice of dismissal is
Defendant is granted only the balanc e of the filed by the plaintiff even after an answer has been filed
reglementary period to which he was entitled at the time in court but before the res ponsive pleading has been
he filed his motion to dismiss, counted from his receipt served on the plaintiff, the notice of dismissal is still a
of the denial order, but not less than 5 days in any matter of right (Riano, 2007, p. 224).
event.

Upon filing of the notice of dismissal by the plaintiff, the

motion to dismiss filed by respondents became moot SECTION 3. DISMISSAL DUE TO FAULT OF
and academic and the trial court should have dismissed PLAINTIFF
the case without prejudice based on the notice of
dismissal filed by the petitioner (Dael v. Beltran, G.R. Causes for dismissal
No. 156470, April 30, 2008). 1. Plaintiff fails to appear for no justifiable cause on the
date of the present ation of his evidence in chief on
The rule requires a court order confirming the dismissal. the complaint;
Such dismissal is without prejudice. 2. Plaintiff fails to prosecute his action for an
unreasonable length of time (Nolle Prosequi); and
Except: 3. Plaintiff fails to comply with these Rules or any order
1. Where the notice of dismissal so provides; or of the court.
2. Where the plaintiff has previously dismissed the same
case in a court of competent jurisdiction (Two- The plaintiff’s failure to appear at the trial after he has
Dismissal Rule). presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of
Two-dismissal rule applies when the plaintiff has a) failure to pros ecute. It is merely a waiver of his right to
twice dismissed actions, b) based on or including the cross-examine and to object to the admissibility of
same claim, c) in a court of competent jurisdiction. The evidence (Jalover v. Ytoriaga, G.R. No. L-35989,
second notice of dismissal will bar the refilling of the October 28, 1977).
action because it will operate as a n adjudication of the
claim upon the merits (Riano, p. 265). Complaint may be dismissed:
1. Upon motion of the defendant; or
If the plaintiff files a notice of dismissal providing therein 2. Upon the court’s own initiative.
a reason that prevents the refilling of the complaint, the
dismissal must be deemed one with prejudice. This Dismissal shall have the effect of an adjudication upon
happens when the notice provides that the plaintiff the merits (res judicata), unless otherwise declared by
recognizes the fact of prescription or extinguishment of the court or if the court has not yet acquired jurisdiction
the obligation of the defendant or for reasons stated in over the person of t he defendant (Herrera, vol. 1 p.
Sec. 5 of Rule 16 (Riano, 2007, p. 225). 798).
SECTION 2. DISMISSAL UPON MOTION OF SECTION 4. DISMISSAL OF COUNTERCLAIM,

PLAINTIFF CROSS-CLAIM, OF THIRD-PARTY COMPLAINT
Under t his section, the dismissal of the complaint is
subject to the discretion of the court and upon such A dismissal or discontinuance of an action operates to
terms and conditions as may be just. annul orders, rulings or judgments previously made in
the case, as well as all proc eedings had in connection
If a counterclaim has been pleaded by the defendant therewith and renders all pleadings ineffective
prior to the service upon him of the plaintiff’s motion for (Servicewide Specialist, Inc. v. Court of Appeals, G.R.
dismissal, the dismissal shall be limited to the No. 110597, May 8, 1996).
complaint.
Such dismissal shall be without prejudice to the right of RULE 18

the defendant to either:
1. Prosecute his counterclaim in a separate action; or P RE -T RIAL
2. To have the same resolved in the same action. In
this case, defendant must manifest such preference
Pre-Trial
to the trial court within 15 days from notice to him of
It refers to a mandatory conference and personal
plaintiff’s motion to dismiss.
confront ation before the judge between the parties and
their respective counsel.
These alternative remedies of the defendant are
available to him regardless of whether his counterclaim
is compulsory or permissive. SECTION 1. WHEN CONDUCTED
After the last pleading has been served and filed, it
Di smi ssal under this Rule is without prejudice, i.e. shall be the duty of the plaintiff to promptly move ex-
the complaint can be re-filed, except: parte that the case be set for pre-trial.
1. When otherwise stated in the motion to dismiss; or
2. When stated to be with prejudice in the order of the Specifically, the motion is to be filed within 5 days after
court. the last pleading joining the issue has been served and
filed (Administrative Circular No. 3-99 January 15,
The approval of the court is necessary in the dismissal 1999). If the plaintiff fails to file said motion within the
or compromise of a class suit. given period, the branch clerk of c ourt shall issue a
notice of pre- trial (A.M. No. 03-109-SC, July 13, 2004).

of valid caus e for t he non-appearance of the party

Note: The “last pleading” need not be literally construed himself.
as the actual filing of the last pleading. For purposes of
the pre-trial, the expiration of the period for filing the last SECTION 5. EFFECT OF FAILURE TO APPEAR
pleading is sufficient (Sarmiento v. Juan, G.R.
No.56605, January 28, 1983). Effect of non-appearance of plaintiff: Cause for the
dismissal of the action. This dismissal shall be with
SECTION 2. NATURE AND PURPOSE prejudice except when the court orders otherwise. The
The Court shall consider: dismissal shall have the effect of an adjudication on the
1. The possibility of an amicable settlement or of a merits and is thus final. The remedy of the plaintiff is to
submission to alternative modes of dispute resolution; appeal the order of dismissal.
2. The simplification of issues;
3. The nec essity or desirability of amendments to the Effect of non-appearance of defendant: Cause the
pleadings; plaintiff to present evidence ex parte and for the court to
4. The possibility of obtaining stipulations or admissions render judgment on the basis thereof. The order to
of facts and documents to avoid unnecessary proof; present evidence ex parte is interlocutory and thus not
Note: The process of securing admissions, whether appealable. The defendant may ask for reconsideration
of facts or evidenc e, is essentially voluntary. When and if the denial is with grave abuse of discretion he
the parties are unable to arrive at a stipulation of may file a petition for certiorari.
agreed facts, the court must close the pre-trial and
proceed with the trial of the case (Filoil Mark eting Note: The non-appearance of the defendant in the pre-
Corp. v. Dy P ac & Co., G. R. No.29636, September trial is not a ground to declare him in default.
30, 1982).
5. The limitation of the number of witnesses; SECTION 6. PRE-TRIAL BRIEF
6. The advisability of a preliminary reference of issues to The parties shall file with the court and serve on the
a commissioner; adverse party, in such manner as shall ensure their
7. The propriety of rendering judgment on the pleadings, receipt thereof at least three (3) days before the date of
or summary judgment, or of dismissing the action the pre-trial.
should a valid ground therefor be found to exist;
8. The advisability or necessity of suspending the Contents of the pre-trial brief
proceedings; and 1. A statement of their willingness to ent er into amicable
9. Such other matters as may aid in the prompt settlement or alternative modes of dispute resolution,
disposition of the case. indicating the desired terms thereof;
2. A summary of admitted facts and proposed
SECTION 3. NOTICE OF PRE-TRIAL stipulations of facts;
The notice of pre-trial shall be served on c ounsel, or on 3. The issues to be tried or resolved;
the party who has no couns el. The counsel served with 4. The documents or exhibits to be presented stating
such notice is charged with the duty of notifying the the purpose thereof;
party represented by him. 5. A manifestation of their having availed or their
intention to avail themselves of discovery procedures
SECTION 4. APPEARANCE OF PARTIES or referral to commissioners; and
Both the parties and their counsel must appear at the 6. The number and names of the witnesses, and the
pre-trial. substance of their respective testimonies.
When non-appearance of a party may be excused: Note: Failure to file pre-t rial brief has the same effect
1. If a valid cause is shown therefor; and as failure to appear at the pre-trial.
2. If a representative shall appear in his behalf fully
authorized in writing to: Principles involved in compromi se agreements: The
a. Enter into an amicable settlement; authority to compromise a litigation is not mandatorily
b. Submit to alternative modes of dispute resolution; required to be in writing. The vital thing is that the
and authority was made expressly. The authority to
c. Enter into stipulations or admissions of facts and of compromise if not in writing may be establis hed by
documents. evidence.
Written authority must be in t he form of Special P ower Compromise agreement entered without authority is not
of Attorney (Riano, 2007, p. 306). If the party is a void, but unenforceable and may be ratified (Lim Pin v.
corporation, the SPA must be supported by a board Liao Tan, G.R. No. L-47740, July 20, 1982).
resolution.
SECTION 7. RECORD OF PRE-TRIAL
Note: The mere presentation of such written authority is CONTENTS OF PRE-TRIAL ORDER
not sufficient, but must be complemented by a showing 1. A statement of the nature of the case;

2. The stipulations or admissions of the parties, from either the

including testimonial and documentary evidence; prosecution or the
3. The issues involved: factual and legal; defense.
4. Number of witnesses; and The motion to set the The pre-trial is ordered
5. The dates of trial. case for pre-trial is by the court after
made after the last arraignment and within
The proceedings in the pre-trial shall be recorded. pleading has been 30 days from the date
served and filed. the court acquires
The contents of the pre-trial order shall c ontrol the jurisdiction over the
subsequent course of the action, unless: person of the accused.
1. Modified before trial to prevent manifest injustice Considers the Does not include the
(Rule 18, Sec.7); possibility of an considering of the
2. Issues impliedly included therein or may be inferable amicable settlement as possibility of amicable
therefrom by necessary implication (Velasco v. an important objective. settlement as one of its
Apostol, G.R. No. 44588, May 9, 1989); and purposes.
3. Amendment to conform to evidence (Rule 10, Sec. The proceedings are to All agreements or
5). be recorded in the admissions made or
minutes to be signed by entered during the pre-
A party is deemed to have waived the right to invoke either the party or his trial conference shall be
stipulations in the pre-t rial order if he failed to object to counsel. reduced in writing and
the introduction of evidence outside of the pre -trial signed by both the
order, as well as in cross-examining the witness in accused and counsel,
regard to said evidence. otherwise, they cannot
be used against the
accused.
Pre-Trial The sanctions for non- The sanctions in a
appearance in a pre- criminal case are
trial are imposed upon imposed upon the
the plaintiff and the counsel for the accused
No Amicable Failure to defendant. or the prosecutor.
settlement settlement appear The presenc e of the The accused is merely
defendant is required, required to sign the
unless he is duly written agreement
If plaintiff is represented at the pre- arrived at in the pre-trial
Agreements
trial conference by his conference, if he is in
made by parties; counsel with the conformity therewith.
absent, when so
requisite authority to Unless otherwise
Amendments to required to enter into a required by the court, his
pleading; attend, the court compromise presence therefore is not
may dismiss the agreement, failing in indispensable.
Schedule of case. either of which the case
trial. shall proceed as if the Note: This is aside from
If defendant defendant has been the consideration that the
Trial declared in default. accused may waive his
is absent, court presence at all stages of
may hear the criminal action,
evidence of except at the
plaintiff ex parte. arraignment,
promulgation of judgment
Court or when required to
renders appear for identification.
decision The presenc e of the The presence of the
plaintiff is required at private offended party is
the pre-trial unless not required at the pre-
excused therefrom for trial. Instead, he is
valid cause or if he is required to appear at the
Pre-Trial in Civil Pre-Trial in Criminal represented t herein by arraignment of the
Cases Cases a person fully accused for purposes of
authorized in writing to plea bargaining,
Set when the plaintiff Ordered by the court and perform the acts determination of civil
moves ex parte to set no motion to set the case specified in Sec 4, Rule liability, and other
the case for pre-trial. for pre-trial is required 18. matters requiring his

presence. It is neither compulsory nor mandatory but only optional

Absent such Should he fail to appear and permissive (Mabayo Farms, Inc. v. Court of
justification, the case therein, and the accused Appeals, G.R. No. 140058, August 1, 2002).
may be dismissed with offers to plead guilty to a
or without prejudice. lesser offense SECTION 1. WHO MAY INTERVENE (MEBA)
necessarily included in There must be a motion for intervention filed before
the offense charged, he rendition of judgment by the trial court, because leave
may be allowed to do so of court is required before a person may be allowed to
with the conformity of the intervene, by:
trial prosecutor alone. 1. One who has a legal interest in the matter in litigation;
A pre-trial brief is The Rules do not require 2. One who has a legal interest in the success of either
required with the the filing of a pre-trial of the parties;
particulars and the brief in criminal cases but 3. One who has an interest against both parties; or
sanctions provided by only require attendance 4. One who is so situated as to be adversely affected by
Sec. 6, Rule 18. at a pre-trial conference a distribution or other disposition of property in the
to consider the matters custody of the court or of an officer thereof.
stated in Sec.2, Rule 118
(Regalado, pp.519-520). General Rule: The final dismissal of the principal action
results in the denial of a pending motion for
intervention.
RULE 19 Exception: When intervention has been allowed and
I NT ERVENT ION the complaint in intervention has already been filed
before plaintiff’s action had been expressly dismissed
Intervention (Metro Bank v. RTC-Manila, Br. 39, G.R. No. 89909,
September 21, 1990).
It is a legal proceeding by which a person not a party to
the action is permitted by the court to become a party Note: Denial of motion to intervene does not constitute
by intervening in a pending action after meeting the res judicata. Remedy of intervenor is to file a separate
conditions and requirement set by the Rules of Court. action (Asuncion v. Pineda, G.R. No. L-47924, July 31,
This third person who intervenes is one who is not 1989).
originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G. R. No. 88345, Factors to be considered by the court
February 1, 1996; Rule 19, Rules of Court). 1. Whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
Requisites for intervention: parties; and
2. Whether or not the int ervenor’s rights may be fully
1. There must be a motion for intervention filed before protected in a separate proceeding (Mabayo Farms,
rendition of judgment by the trial court, Inc. v. Court of Appeals, supra).
2. The movant must show that he has a legal interest in
the matter in litigation, the success of either party or Interest in the Subject
against the both of them. It means a direct interest in the cause of action as
3. That the movant will be adversely affected by a pleaded and which would put the intervenor in a legal
distribution or other disposition of property in the position to litigate a fact alleged in the complaint,
custody of the court or an officer thereof. without the establishment of which plaintiff could not
4. The intervention must not unduly delay or prejudice recover (Magsaysay Labrador v. Court of Appeals.,
the adjudication of the rights of the original parties, G.R. No. 58168, Dec. 19, 1989).
5. The int ervenor’s rights may not be fully protected in a
separate proceeding. Legal interest: It must be one that is actual and
6. A copy of the pleading-in-intervention shall be material, direct and of an intermediate character, not
attached to the motion and served on the original merely contingent or expectant so that the intervenor
parties. will either gain or lose by the direct legal operation of
It is never an independent proceeding but is ancillary the judgment (Riano, p.346).
and supplemental to an existing litigation.
Purpose: To enable a stranger to an action to become Intervention Interpleader

a party to protect his interest (Santiago Land An ancillary action. An original action.
Development Corporation v. Court of Appeals, G.R. No.
Proper in any of the Presupposes that the
106194, January 28, 1997).
four situations plaintiff has no int erest in
It cannot alter the nat ure of the action and the issues mentioned in this the subject matter of the
already joined (Castro v. David, G.R. No. L-8508, Rule. action or has an interest
therein, which in whole or
November 29, 1956).
in part, is not disputed by Note: Motion for intervention is prohibited in summary

the other parties to the procedure.
action.
The action is against Defendants are being s ued
either or both the precisely to implead them.
RULE 20
original parties to the C ALENDAR OF C ASES
pending suit.
General Rule: Intervention is a matter of discretion on SECTION 1. CALENDAR OF CASES

the part of the court.
Preference shall be given to:
Exception: In civil cases, there is one instance where 1. Habeas corpus cases;
intervention is a matter of right and that is in class suit. 2. Election cases;
3. Special civil actions;
E very member who is involved in a class suit has the
4. Habeas data;
right to intervene.
5. Writ of Amparo; and
SECTION 2. TIME TO INTERVENE 6. Those so required by law.
The motion to intervene must be filed at any time before SECTION 2. ASSIGNMENT OF CASES
rendition of judgment by the trial court. Note: Assignment of cases is required to be done
exclusively by raffle.
General Rule: After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
recognizes the right of the movant. The remedy of the RULE 21
movant is to file a separate action. S UBPOENA
Exceptions:
1. With respect to indispensable parties, intervention
Subpoena and Summons; Distinguished
may be allowed even on appeal (Falc asantos v.
Falcasantos, G.R. No. L-4627, May 13, 1952).
2. When the intervenor is the Republic (Lim v. Subpoena Summons
Pacquing, G.R. No. 115044, Jan. 27, 1995). An order to appear and An order to answer
3. Intervention may be allowed after judgment where testify or to produce complaint.
necessary to prot ect some interest which cannot books and documents.
otherwise be protected, and for the purpose of
May be served to a Served on the
preserving the intervenor’s right to appeal (Herrera
non-party. defendant.
vol.1 p. 847).
Needs tender of Does not need tender of
SECTION 3. PLEADINGS-IN-INTERVENTION kilometrage, attendance kilometrage and other
The intervenor shall file a motion for intervention fee and reasonable cost fees.
attaching thereto his pleading-in-intervention. of production fee.
1. Complaint-in-intervention – If the intervenor asserts a
claim against either or all of the original parties.
2. Answer-in-intervention – If the intervenor unites with SECTION 1. SUBPOENA AND SUBPOENA
the defendant in resisting a claim against the latter. DUCES TECUM
The motion and pleading shall be served upon the Subpoena Ad Testificandum
original parties. It is a process directed to a person requiring him to
attend and to testify at the hearing or the trial of an
SECTION 4. ANSWER TO A COMPLAINT-IN- action, or at any investigation conducted by competent
INTERVENTION authority, or for the taking of his deposition.
Within 15 days from notice of the order admitting the
same, unless a different period is fixed by the courts. Subpoena Duces Tecum
It is a process directed to a person requiring him to
Remedies for the denial of intervention: bring with him books, documents, or other things under
1. Appeal; or his control.
2. Mandamus, if there is grave abuse of discretion.
SECTION 2. BY WHOM ISSUED
If there is improper granting of intervention, the remedy
of the party is certiorari. Who may issue:
1. Court before whom the witness is required to attend;

2. Court of the place where the deposition is to be 4. If the subpoena is duces tecum, the reasonable cost
taken; of producing the books, documents, or things
3. Officer or body authorized by law to do s o in demanded shall also be tendered.
connection with investigations conducted by said
officer or body; or SECTION 7. PERSONAL APPEARANCE IN
4. Any Justice of the SC or of the CA in any case or COURT
investigation pending within the Philippines.
General Rule:
Subpoena to a prisoner: It must be for a valid 1. The court which issued the subpoena may issue a
purpose. If prisoner required to appear in court is warrant for the arrest of the witness and mak e him
sentenced to death, reclusion perpetua or life pay the cost of such warrant and seizure, if the court
imprisonment and is confined in prison – must be should determine that his disobedience was willful
authorized by the SC. and without just cause (Sec. 8).
2. The refusal to obey a subpoena without adequate
SECTION 3. FORM AND CONTENTS cause shall be deemed contempt of the court issuing
it (Sec. 9).
A. Subpoena:
1. Shall state the name of the court and the title of the SECTION 10. EXCEPTIONS
action or investigation; Provisions regarding the compelling of attendance
2. It shall be directed to t he person whose attendance is (Sec. 8) and contempt (Sec. 9) do not apply where:
required; and 1. Witness resides more than 100 kilomet ers from his
3. In the case of a subpoena duces tecum, it shall residence to the place where he is to testify by the
contain a reas onable description of the books, ordinary course of travel (Viatory Right); and
documents or things demanded which must appear to Note: This refers only to civil and not to criminal
the court to be prima facie relevant. cases (Genorga v. Quitain, G.R. No. 891 July 21,
1977).
SECTION 4. QUASHING A SUBPOENA
A. Subpoena Duces Tecum may be quashed 2. Permission of the court in which the detention
upon: (MPuraw) prisoner’s case is pending was not obtained.
1. Motion promptly made; and
2. Proof that:
a. It is unreasonable and oppressive;
b. The articles sought to be produced do not appear RULE 22
prima facie to be relevant to the issues; or
c. The person asking for the subpoena does not
C OM PUT AT ION OF T IM E
advance the cost for t he production of the articles
desired.
d. The witness fees and kilometrage allowed by the SECTION 1. HOW TO COMPUTE TIME
Rules were not tendered when the subpoena was
The Rules have adopted the New Civil Code principle in
served.
computation of time: exclude the first and include the
B. Subpoena Ad Testificandum may be quashed:
last.
a. If the witness is not bound thereby; and
b. The witness fees and kilometrage allowed by the
SECTION 2. EFFECT OF INTERRUPTION
Rules were not tendered when the subpoena was
Any extension of time to file the required pleading
served.
should be counted from the expiration of the period
regardless of the fact that the said due date is a
SECTION 5. SUBPOENA FOR DEPOSITIONS
Saturday, Sunday, or legal holiday (A.M. No. 00-2-14-
SC, as explained in Luz v. National Amnesty
SECTION 6. SERVICE Commission, G.R. No. 1597028, September 24, 2004).
Service of subpoena shall be made in the same manner
as service in person or substituted service of summons. Rules of Discovery
1. The original shall be ex hibited and a copy thereof be Discovery
delivered to the person on whom it is served; A device employed by a party to obtain information
2. Tendering to him the fees for one day’s attendance or about relevant matters on the case from the adverse
kilometrage allowed by the Rules; except that, when party in the preparation for trial. This may be used by all
a subpoena is issued by or on behalf of the Republic the parties to the case. (Riano, p. 375).
of the Philippines or an officer or agency thereof, the
tender need not be made; Basic purposes of the rules of discovery:
3. The servic e must be made so as to allow the witness 1. To serve as an additional device aside from pre trial;
a reasonable time for preparation and travel to the to narrow and clarify the basic issues between the
place of attendance; and parties; to ascertain the facts relative to the issues;

2. To enable a party to obt ain knowledge of material

facts within the knowledge of the adverse party or of RULE 23
third parties through depositions; D EPOSIT IONS P ENDING ACT IONS
3. To obtain knowledge of material facts or admissions
from the adverse party through written interrogatories; Deposition
4. To obtain admissions from the advers e party
A written testimony of a witness given in the course of a
regarding the genuineness of relevant documents or
judicial proceeding in advance of the trial or hearing
relevant matters of fact through requests for
upon oral examination or in response to written
admissions;
interrogatories and where an opport unity is given for
5. To inspect relevant documents or objects, and lands
cross-examination.
or other property in the possession and control of the
adverse party; and
Depositions are different from affidavits since the latter
6. To determine the physical or mental condition of a
are ex parte statements wit hout formal int errogation
party when such is in controversy (Koh v.
and opportunity for cross-examination.
Intermediate Appellate Court, G.R. No. 71388,
Affidavits are not admissible in evidence except in
cases governed by the Rule on Summary Procedure or
In sum: To enable the parties to obtain the fullest
in ordinary cases subject to cross-examination.
possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried
Depositions are intended as a means to compel
on in the dark.
disclosure of facts resting in the knowledge of a party or
other person, which are relevant in a suit/ proceeding.
Importance: To shorten the period of litigation and
speed up adjudication. This mutual discovery enables a
Dual function of deposition
party to discover the evidence of the adverse party and
a. As a method of discovery – provided that the subject
thus facilitates an amicable settlement or expedites the
of deposition is relevant and not privileged.
trial of the case. All parties are required to lay their
b. As an alternative to testimony – If the purpos e is only
cards on the table so that justice can be rendered on
for use as testimony, the ground therefor is not solely
the merits of the case (Justice Magdangal De Leon,
relevancy but there must be a showing of necessity
2011 Modes of Discovery Outline).
or unavailability of the deponent to appear and testify
in court.
Di scovery still applies even if motion for bill of
particulars denied: That the matters on which
Classification of depositions
discovery is desired are the same matters subject of a
1. Depositions on oral examination and Depositions
prior motion for bill of particulars denied for lack of merit
upon written interrogatories;
is beside the point. Indeed xxx a bill of particulars may
2. Depositions de bene esse – Those taken for
elicit only ultimate facts, not so called evidentiary facts.
purposes of a pending action (Rule 23); and
The latter are without a doubt proper subject of
3. Depositions in perpetuam rei memoriam – Those
discovery (Republic of the Philippines v.
taken to perpetuate evidence for purposes of an
Sandiganbayan, G.R. No. 90478, November 21, 1991).
anticipated action or further proceedings in a case on
appeal (Rule 24).
Modes of di scovery under the Rule s of Court (D-
DIAPP)
1. Depositions pending action (Rule 23);
SECTION 1. DEPOSITION PENDING ACTION,
2. Depositions before action or pending appeal (Rule WHEN MAY BE TAKEN
24);
3. Interrogatories to parties (Rule 25); When taken:
4. Admission by adverse party (Rule 26); A. With leave of court
5. Production or inspection of documents, or t hings 1. After jurisdiction has been obtained over any
(Rule 27); and defendant or over the property which is the subject
6. Physical and mental examination of persons (Rule of the action but before an answer has been filed.
28).
Ratio: Leave of court is necessary because the
Modes of discovery are int ended to be cumulative, and issues are not yet joined and the disputed facts are
not alternative nor mutually exclusive (Fortune Corp. v. not yet clear.
CA, G.R. No. 108119, January 19, 1994).
Note: This contemplates a situation where the
Note: Discovery is not mandatory but failure to avail complaint has already been filed and the summons
carries sanctions in Rules 25 and 26. (personal or otherwise) has been served. That is
why before using this discovery tool, the rule says
“After jurisdiction has been obtained…”

2. Deposition of a person confined in prison. This is to Five instance s where deposition of any witness
be taken only with leave of court and upon such may be used for any purpose (DR. USE)
terms as the court may prescribe 1. The witness is dead;
2. The wit ness resides more than 100 kilometers from
B. Without Leave of Court: the place of trial or hearing, or is out of the
After answer and deponent is not confined in prison. Philippines. Unless it appears that his absenc e was
procured by the party offering the deposition;
An answer ex abudanti cautela ("out of abundant 3. The witness is unable to testify because of age,
caution" or "to be on the s afe side) does not make an sickness, infirmity, or imprisonment;
answer less of an answer. Thus, when an ans wer ex 4. The party offering the deposition has been unable to
abudanti cuatela is filed, deposition may be made procure the attendance of the witness by subpoena;
WITHOUT leave of court (Rosette v. Lim, G.R. No. OR
136051, June 8, 2006). 5. Upon application and notice, that such exceptional
circumstances exist as to make it desirable in the
Who may take deposition and how: Any party to an interest of justice.
action may take the deposition of another by oral
examination or written interrogatories (Rule 23, Sec.1). Section 4 of Rule 23 on the use of deposition is clearly
indicative of the use of deposition as an alternative
SECTION 2. SCOPE OF EXAMINATION mode of testimony in view of distance, death or
disability of the deponent.
Scope of examination in depositions
1. Matter which is relevant to the subject of the pending Note: Certiorari will not lie against an order admitting
action; or rejecting a deposition in evidence. The remedy is an
2. Not privileged; and appeal from the final judgment assigning as error the
3. Not restricted by a protective order (Sections 16 and admission or rejection of a deposition.
18).
Ratio: Because it is merely an error of law not grave
SECTION 3. EXAMINATION AND CROSS- abuse of discretion.
EXAMINATION
The deponent may be examined or cross examined Where depositions may be used:
following the procedures for witnesses in a trial. He has 1. At the trial;
the same rights as a witness and may be impeached 2. At the hearing of a motion;
like a court witness because Secs. 3 to 18 of the Rule 3. At the hearing of an interlocutory proceeding (Albano,
132 apply to a deponent (Riano, 2009 ed. p. 379) Remedial Law Reviewer, 2010 ed., p.366).
SECTION 4. USE OF DEPOSITIONS Against whom may be used:

Where the witness is available to testify and the 1. Party present at the time of its taking;
situation is not one of those excepted under Section 4, 2. Party represented at the time of its taking;
his deposition is inadmissible in evidenc e and he 3. Party notified of its taking (Albano, p.366-367).
should be made to testify.
SECTION 5. EFFECT OF SUBSTITUTION OF
Deponent Use
PARTIES
The substitution of parties does not affect the right to
Any person. By any party for use depositions previously taken.
contradicting or
impeaching the SECTION 6. OBJECTIONS TO ADMISSIBILITY
testimony of deponent
Subject to Sec. 29, objection may be made at the trial
as witness. or hearing for any reason which would require exclusion
A party or anyone who By an adverse party for of evidence if the witness were then present and
at the time of the any purpose. testifying.
deposition was an
officer, director, or SECTION 7. EFFECT OF TAKING
managing agent of a DEPOSITIONS
public or private corp., A party shall not be deemed to make a person his own
partnership, or witness for any purpose by taking his deposition
association which is a because depositions are taken for discovery and not for
party. use as evidence.
Witness, whether or not By any party for any
a party. purpose if the court Exception: If a party offers the deposition in evidence,
finds the 5 instances then he is deemed to have made the deponent his
occurring. witness (Sec.8).

Exception to the exception: Unless the deposition is SECTION 13. DISQUALIFICATION BY

that of an opposing party or the deposition is used to INTEREST
impeach or contradict the deponent (Sec. 8). No deposition shall be taken before a person who is:
th
1. A relative wit hin the 6 degree of affinity or
SECTION 9. REBUTTING DEPOSITION consanguinity;
2. An employee or counsel of any of the parties;
SECTION 10 AND 11. PERSONS BEFORE 3. A relative within the same degree, or employee of
WHOM DEPOSITIONS MAY BE TAKEN such counsel; and
4. Financially interested in the action.
Within the Philippines:
1. Judge; SECTION 14. STIPULATIONS REGARDING
2. Notary public; or TAKING OF DEPOSITONS
3. Any person authorized to administer oaths, as Within the Philippines, a deposition may be taken
stipulated by the parties in writing (Sec.14). before any person authorized to administer oaths if the
parties so stipulate in writing.
Outside the Philippines: [SeCS]
1. On notice before a secretary of embassy or legation, SECTION 15. DEPOSITION UPON ORAL
consul general, consul, vice-consul, or consular agent EXAMINATION; NOTICE; TIME AND PLACE
of the Phil.;
2. Before such pers on or officer as may be appointed by SECTION 16. ORDERS FOR THE PROTECTION
commission or under letters rogatory; or OF PARTIES AND DEPONENTS
3. Any person authorized to administer oaths, as
After notice is served and upon motion seasonably
stipulated by the parties in writing.
made and for good cause shown, the court may make
an order:
SECTION 12. COMMISSION OR LETTERS
1. That the deposition shall not be taken;
ROGATORY 2. That it may be taken only at some designat ed place
other than that stated in the notice;
Commission 3. That it may be taken only on written interrogatories;
An instrument issued by a court of justice, or other 4. That certain matters shall not be inquired into;
competent tribunal, to authorize a person to take 5. That the scope of examination shall be held with no
depositions or do any other act by authority of such one present except the parties to the action and their
court or tribunal. officers or counsel;
6. That after being sealed the deposition shall be
Letters Rogatory opened only by order of the court;
An instrument sent in the name and by the authority of 7. That secret processes, developments, or research
a judge or court to another, requesting the latter to need not be disclosed;
cause to be examined, upon interrogatories filed in a 8. That the parties shall simultaneously file specified
case pending before t he former, a witness who is within documents or information enclosed in sealed
the jurisdiction of the judge or court to whom such envelopes to be opened as directed by the court;
letters are addressed (Feria, p. 518). 9. Any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or
Commission Letters Rogatory oppression.
Issued to a non-judicial Issued to the
foreign officer who will appropriate judicial SECTION 17. RECORD OF EXAMINATION;
directly take the officer of the foreign OATH; OBJECTIONS
testimony. country who will direct
somebody in said SECTION 18. MOTION TO TERMINATE OR
foreign country to take LIMIT EXAMINATION
down testimony.
Applicable rules of Applicable rules of May be filed:
procedure are those of procedure are those of 1. Any time during the taking of the deposition;
the requesting court. the foreign court 2. On motion or petition of any party or of the deponent;
requested to act. and
Resorted to if Resorted to if the 3. Upon showing that the examination is conducted in:
permission of the execution of the a. Bad faith;
foreign country is given. commission is refused b. In such manner as unreas onably to annoy,
in the foreign country. embarrass, or oppress the deponent or party; or
c. When the inquiry touches upon the irrelevant or
Leave of court is not Leave of court is encroaches upon the recognized domains of
necessary. necessary. privilege (Hyatt Industrial v. Ley Construction, G.R.
No. 147143, March 10, 2006)

SECTION 29. EFFECT OF ERROR AND

When the constitutional privilege against self- IRREGULARITIES IN DEPOSITIONS
incrimination is invoked by the deponent or his counsel,
the trial court may stop the examination (Isabela Sugar 1. As to notice – Waived unless written objection is
Co. v. Macadaeg, G.R. No. L-5924, October 28, 1953). promptly served upon the party giving the notice.
2. As to di squalification of officer – Waived unless
Motion To Terminate made before t he taking of the deposition begins or as
Protection Order
Or Limit Examination soon thereafter as the disqualification becomes
(Section 16)
(Section 18) known.
Provides protection to Provides such protection 3. As to competency and rele vancy of evidence –
the party or witness during the taking of Not waived by failure to mak e them before or during
before the taking of deposition. the taking of the deposition unless the ground of the
deposition. objection is one which might have been obviated or
removed if presented at that time.
Motion is filed with the Motion or petition is filed 4. As to oral examination – Waived unless reasonable
court in which the action in the court in which the objections thereto is made at the taking of the
is pending. action is pending or the deposition.
RTC of the place where 5. As to form of written interrogatories – Waived
the deposition is being unless served in writing upon the party propounding
taken. them within the time allowed.
6. As to manner of preparation – Waived unless a
Note: Generally, depositions are not meant as a motion to suppress the deposition or some part
substitute for the actual testimony in open court of a thereof is made with reasonable promptness after
party or witness. It may be opposed and excluded on such defect is, or with due diligenc e might have been,
the ground of hearsay (Sales v. Sabino, G.R. No. ascertained.
133154, December 9, 2005).
RULE 24
SECTION 19. SUBMISSION TO WITNESS;
CHANGES; SIGNING D EPOSIT IONS BEFORE ACT ION OR
P ENDING APPEALS
SECTION 20. CERTIFICATION AND FILING BY
OFFICER
A deposition before action and a deposition pending
SECTION 21. NOTICE OF FILING appeal are referred to as perpetuation of testimony or
perpetuam rei memoriam because their objective is to
SECTION 22. FURNISHING COPIES perpetuate the testimony of a witness for future use.
Depositions under this Rule are also taken

SECTIONS 23 & 24. FAILURE TO ATTEND OF
conditionally, to be used at the trial only in case the
PARTY GIVING NOTICE; FAILURE OF PARTY deponent is not available.
GIVING NOTICE TO SERVE SUBPOENA
The court may order the party giving the notice t o pay Depositions under this Rule do not prove the existence
such other party the amount of reasonable expenses of any right and the testimony perpetuated is not in
incurred by him and his counsel in so attending, itself conclusive proof, either of the existence of any
including reasonable attorney’s fees. right or even of the facts to which they relate, as it can
be controverted at the trial in the same manner as
SECTION 25. DEPOSITION UPON WRITTEN though no perpetuation of testimony was ever had.
INTERROGATORIES; SERVICE OF NOTICE
AND OF INTERROGATORIES However, in the absence of any objection to its taking,
and even if the deponent did not testify at the hearing,
SECTION 26. OFFICERS TO TAKE AND the perpetuated testimony constitutes prima facie proof
PREPARE RECORD of facts referred to in the deposition.
SECTION 27. NOTICE OF FILING AND SECTION 1. DEPOSITION BEFORE ACTION;

FURNISHING OF COPIES PETITION
A verified petition may be filed by any person:
1. Who wants to perpetuate his own testimony; or
SECTION 28. ORDERS FOR THE PROTECTION 2. Who wants to perpet uate the testimony of another
OF PARTIES AND DEPONENTS person.
Note: This may be availed of only in civil cases and

not in criminal cases.
Interrogatories Bill of Particulars

For example, the petitioner has a cause of action which
A party may properly A party may properly
has not yet accrued. In such a case, inasmuch as he
seek disclosure of seek disclosure only of
cannot bring the action until the cause of action
matters of proof which matters which define the
accrues, he may perpetuate his testimony or that of
may later be made a issues and become a
another person (Feria, p. 534).
part of the records as part of the pleadings.
evidence.
SECTION 2. CONTENTS OF PETITION
The petition shall be verified and shall be filed in the Seeks to disclose all Designed to clarify
place of residence of any expected adverse party. It material and relevant ambiguities in a pleading
shall contain the matters set forth in Sec. 2 of Rule 24. facts from a party. or to state with sufficient
definiteness allegations
SECTION 3. NOTICE AND SERVICE in a pleading
1. The petitioner shall serve a notice upon eac h person Not directed t o a Directed to a pleading.
named in the petition as an expected advers e party, particular pleading.
together with a copy of the petition, stating that the
petitioner will apply to the court, at the time and place
stated therein; and
Depositions upon
2. At least 20 days before the date of hearing, the court Interrogatories to
Written Interrogatories
shall cause notice thereof to be served on the parties Parties
to Parties
and prospective deponents in the manner provided (Rule 25)
(Rule 23)
for in the service of summons.
As to Deponent
SECTION 4. ORDER AND EXAMINATION Party or ordinary Party only.
witness.
SECTION 5. REFERENCE TO COURT As to Procedure
With intervention of the No int ervention. Written
SECTION 6. USE OF DEPOSITION officer authorized by the interrogatories are
If deposition is taken under this Rule, it may be used in court to take deposition. directed to the party
any action involving the same subject matter Not served upon the himself.
subsequently brought. adverse party directly,
instead, delivered to the
SECTION 7. DEPOSITIONS PENDING APPEAL officer before whom the
Depositions are taken pending appeal with the view of deposition is to be taken
being used in the event of further proc eedings in the
As to Scope
court of origin or appellate court.
Direct, cross, redirect, Only one set of
For example, a party may perpet uate the testimony of a re-cross. interrogatories.
witness which was objected by the adverse party and Interrogatories
ruled out by the court. If the appellate court should
No fixed time. 15 days to answer
reverse the decision/ order of the lower court, it could
unless extended or
admit the deposition as additional evidence or remand
reduced by the court.
the case back to the lower court for such A DMISSION
in accordance with Sections 4 and 5 of Rule 23 (Feria,
p. 537). SECTION 1. INTERROGATION TO PARTIES;
SERVICE THEREOF
A party may serve written interrogatories:
RULE 25 1. Without Leave of Court – After answer has been
served, for the first set of interrogatories.
I NT ERROGAT ORIES TO P ART IES 2. With Leave of Court – Before answer has been
served.
Purpose of written interrogatories: To elicit
material and relevant facts from any adverse party Reason: At that time, the issues are not yet joined
(ans wers may also be used as admissions of the
and the disputed facts are not yet clear.
adverse party).
SECTION 2. ANSWER TO INTERROGATORIES
Written interrogatories and the answers thereto must
both be filed and served. Hence, the answers may The interrogatories shall be answered fully in writing
constitute as judicial admissions (Sec. 4 Rule 129). and shall be signed and sworn to by the person
making them.

Answers cannot be made by an agent or attorney; 2. To avoid unnecessary inconvenience to the parties in
answers not made by the parties are nullities (Herrera, going through the rigors of proof, before a trial
Vol. 2, p. 44). (Riano, 2010 ed. p. 383;
3. To expedite trial and relieve the parties of the costs of
A judgment by defaul t may be rendered against a proving facts which will not be disputed on trial and
party who fails to answer written interrogatories. the truth of which can be ascertained by reasonable
inquiry.
SECTION 3. OBJECTIONS TO When request may be made: At any time after the
INTERROGATORIES issues have been joined (after the responsive pleading
Objections to any interrogatories may be pres ented to has been served).
the court within 10 days after service thereof, with
notice as in the case of motion. What request may include:
1. Admission of the genuineness of any material and
Answers shall be deferred until objections are resolved, relevant document described in and exhibit ed with
which shall be at the earliest possible time. the request;
2. Admission of the truth of any material and relevant
SECTION 4. NUMBER OF INTERROGATORIES matter of fact set forth in the request; or
Only one set of int errogatories by the same party is 3. Under this rule, a matter of fact not related to any
allowed. Leave of court is necessary for succeeding documents may be presented to the other party for
sets of interrogatories. admission or denial.
SECTION 5. SCOPE AND USE OF

Note: Request for admission may be served only after
INTERROGATORIES
The SCOPE of interrogatories shall be the matters the issues are joined because the questions of fact
mentioned in Sec. 2 Rule 23. The ans wers may be involved in a case are inquired into only when it
used for the same purpose provided in Sec. 4 of the reaches the stage of proof (Uy Chao v. De la Rama
same Rule. Steamship Co., Inc., G.R. No. L-14495, Sept ember 29,
1962).
Since answers to int errogatories may be used for the
same purposes as depositions, they may als o be the
Request for Admission Actionable Document
basis of a summary judgment under Rule 35.
Proper when the Must be attached to the
SECTION 6. EFFECT OF FAILURE TO SERVE genuineness of an complaint or copied
WRITTEN INTERROGATORIES evidentiary document is therein. Its genuineness
Unless a party had been served with written sought to be admitted. and due execution is
interrogatories, he may not be compelled by the If not denied under oath, deemed impliedly
adverse party: its genuineness is admitted unless
1. To give testimony in open court; or deemed impliedly specifically denied under
2. Give a deposition pending appeal. admitted. Essentially oath by the advers e
a mode of discovery. party.
The only exception is when the court allows it for good
cause shown and to prevent a failure of justice.
SECTION 2. IMPLIED ADMISSION
Note: The sanction adopted by the Rules is not one Each of the matters of which an admission is requested
of compulsion in the sense that the party is being shall be deemed admitted unless the party to whom
compelled to avail of the discovery mechanics, but one the request is directed files and serves upon the party
of negation by depriving him of evidentiary sources requesting the admission a sworn statement either
which would otherwise have been accessible to him. denying specifically the matters of which an admission
is requested or setting forth the reas ons why he cannot
either admit or deny those matters.
RULE 26
The remedy of the party, in this case, is to file a motion
ADM ISSION BY ADVERSE P ART Y to be relieved of the consequences of the implied
admission. The amendment of the complaint per se
cannot set aside the legal effects of the request for
SECTION 1. REQUEST FOR ADMISSION admission since its materiality has not been affected by
the amendment.
Purpose of written request for admission:
1. To allow one party to request the adverse party in Note: A motion for summary judgment may be filed by
writing to admit cert ain material and relevant matters party if there is no statement of denial or reason why
which most likely will not be disputed during the trial; the other party cannot admit or deny because there are

no questions of facts in issue (Allied Agri-Business Co. 1. A motion must be filed by a party showing good
v. Court of Appeals, G.R. No. 118438, December 4, cause therefor;
1998) 2. The motion must sufficiently describe the document
or thing sought to be produced or inspected;
SECTION 3. EFFECT OF ADMISSION 3. The motion must be given to all the other parties;
4. The document or thing sought to be produced or
Use: An admission under this Section is for the purpose inspected must constitute or contain evidence
of the pending action only and cannot be used in material to any matter involved in the action;
other proceedings. 5. The document or thing sought to be produced or
inspected must not be privileged; and
SECTION 4. WITHDRAWAL 6. The document or thing sought to be produced or
The party making an admission under this Rule, may be inspected must be in the possession of the adverse
allowed by the court to withdraw or amend it upon such party or, at least under his control.
terms as may be just.
In a petition for the production of papers and
SECTION 5. EFFECT OF FAILURE TO FILE documents, they must be sufficiently described and
AND SERVE REQUEST FOR ADMISSION identified. Otherwise, the petition cannot prosper.
The party who fails or refuses to request the admission
This mode of discovery does not authorize the
of facts in question is prevented from thereafter
opposing party or the clerk or other functionaries of the
presenting evidence thereon unless otherwise allowed
court to distrain the articles or deprive the person who
by the court. produced the same of their possession, even
temporarily (Tanda v. Aldaya, G.R. No. L-13423,
Note: It is intended to compel requests for admission
November 23, 1959).
(Albano, p.387).
RULE 27 RULE 28
P RODUCT ION OR I NSPECT ION OF P HYSICAL AND M ENT AL
D OCUM ENT OR T HINGS E XAM INAT ION OF P ERSONS
This Rule applies only to a pending action and the

SECTION 1. WHEN EXAMINATION MAY BE
documents or t hings subject of the motion must be only
those within the possession, cont rol, or custody of a ORDERED
party. This mode of discovery is available in an action in
which the mental or physical condition of a party is in
controversy.
Production or
Subpoena Duces Examples of this action would be:
Inspection of
Tecum a. An action for annulment of a contract where the
Documents or Things
ground relied upon is insanity or dementia;
Essentially a mode of A means of compelling
b. A petition for guardianship of a person alleged to be
discovery production of evidence
insane;
The Rules is limited to It may be directed to a c. An action to recover damages for personal injury
the parties to the action. person whether a party where the issue is the extent of the injuries of the
or not. plaintiff (Riano, p. 389).
The order under t his It may be issued upon an
Rule is issued only upon ex parte application. The mental condition of a party is in controversy in
motion with notice to the proceedings for guardianship over an imbecile or
adverse party. insane person, while the physical condition of the party
is generally involved in physical injuries cases.
SECTION 1. MOTION FOR PRODUCTION OR Since the results of the examination are intended to be
INSPECTION; ORDER made public, the same are not covered by the
Production of documents affords more opport unity for physician-patient privilege (Sec. 24 [b], Rule 130).
discovery than a subpoena duces tecum. However, the
rule is not intended for use as a dragnet or any fishing SECTION 2. ORDER FOR EXAMINATION
expedition.
Requisites to obtain an order for examination:
Requisites: (MS.GENP) 1. A motion must be filed for the physical and mental
examination;

2. The motion must show good cause for the Refusal To

examination; Comply With
3. The mental or physi cal condition of a party is in Sanctions
Modes Of
controversy; Discovery
4. Notice to the party to be examined and to all other
parties; and 1. The court, may, upon proper
5. The motion shall specify the time, place, manner, application, compel a
conditions, and scope of the examination and the refusing deponent to answer
person or persons by whom it is made. (Sec.1).
a. If granted and ref usal to
SECTION 3. REPORT OF FINDINGS ans wer is without
substantial justification,
Rules: court may require the
1. The pers on examined shall, upon request, be entitled refusing party to pay the
to a copy of a detailed written report of the examining
proponent the amount
physician setting out his findings and conclusions.
of the reasonable
2. After such request and delivery, the party causing the
examination to be made shall be entitled upon expenses incurred in
request to receive from the party examined, a like obtaining the order,
report of any examination previously or thereafter including attorney's
made, of the same physical or mental condition. Refusal to fees.
3. If the party examined refuses to deliver such report, answer any
the court on motion and notice may make an order b. If denied and filed without
question substantial justification,
requiring delivery.
4. If a physician fails or refuses to make such report, the court may require the
court may exclude his testimony if offered at the trial. proponent to pay the
refusing party the
SECTION 4. WAIVER OF PRIVILEGE amount of the
reasonable expenses
Where the party examined requests and obtains a incurred in obtaining the
report on the res ults of the examination, the order, including
consequences are: attorney's fees.
1. He has to furnish the other party a copy of the report
of any previous or subs equent examination of the
same physical and mental condition; and
2. He waives any privilege he may have in t hat action or 2. A refusal to ans wer after
any other involving the same controversy regarding being directed by the court
the testimony of any other person who has so to do so may be considered
examined him or may thereafter examine him. as contempt of court (Sec. 2)
Refusal to be Cite the disobedient deponent
Sworn (Sec. 2) in Contempt of court
RULE 29
The court may make the
REFUSAL T O C OM PLY WIT H T HE
following orders:
M ODE OF D ISCOVERY
Refusal to 1. Prohibit the disobedient
party to introduce evidence
answer
If a party refuses to answer the whole written of physical or mental
designated condition
interrogatories, Section 5 of Rule 29 applies. Where a
party refuses to answer a particular question, in the set questions or 2. Refuse to allow the
of written interrogatories and despite an order refusal to disobedient party to support
compelling him to answer, still refuses to obey the produce or oppose claims or
order, Section 3(c) will apply (Zepeda v. China Bank ing documents or to defenses
Corporation, G.R. No. 172175, October 9, 2006). submit to 3. Strike out pleadings or parts
physical or thereof
Expenses and attorney’s fees are not to be imposed mental 4. Stay further proceedings
upon the Republic of the Philippines under this rule. examination 5. Dismiss the action or
(Sec. 3) proceeding or any part
thereof
6. Render a judgment by
default against disobedient
party

Refusal To 8. Stipulation of fact.

Comply With
Sanctions
Modes Of
Discovery
SECTION 1. NOTICE OF TRIAL
Upon entry of the case in the trial calendar, the clerk of
7. Direct the arrest of any court shall notify the parties of the date of trial in such
party or agent of a party manner as to ensure its receipt at least five (5) days
disobeying any of such before such date.
orders except an order to
submit to a physical or Trial Hearing
mental examination Not confined to trial and
The court, upon proper Reception of evidence presentation of evidence
application, issue an order and other processes: the because it embraces
Refusal to Admit period for the several stages in
requiring the other party to pay
under Rule 26 introduction of evidence litigation, including the
him reasonable ex penses
(Sec. 4) by both parties. pre-trial and the
incurred, including attorney's
determination of granting
fees. or denying a motion.
The court, on motion and Does not necessarily
imply presentation of
notice, may:
evidence in open court
1. Strike out all or any part of but the parties are
Failure of Party any pleading of disobedient afforded the opport unity
to attend or party; to be heard.
serve answers 2. Dismiss the action or
to written proceeding or any part SECTION 2. ADJOURNMENTS AND
interrogatories thereof; POSTPONEMENTS
(Sec. 5) 3. Enter a judgment by default A court may adjourn a trial from day to day, and to any
against disobedient party; stated time, as the expeditious and convenient
4. Order payment of transaction of business may require.
reasonable expenses
incurred by the other
including attorney's fees.
However, the court has no power to adjourn a trial for:
1. A period longer than one month for each adjournment;

or
RULE 30 2. More than 3 months in all, except when authorized in
T RIAL writing by the court administrator, Supreme Court.
Trial SECTION 3. REQUISITES OF MOTION TO

The judicial process of investigating and determining POSTPONE TRIAL FOR ABSENCE OF
the legal controversies, starting with the production of EVIDENCE
evidence by the plaintiff and ending with his closing
arguments (Acosta v. People of the Philippines, G.R. Requisites:
No. L-17427, July 31, 1962). It is an examination before 1. A motion for postponement stating the ground relied
a competent tribunal of the facts or law put in issue in a upon must be filed; and
case, for the purpose of determining such issue. 2. The motion must be supported by an affidavit
showing:
General Rule: When an issue exists, trial is necessary. a. The materiality and relevancy of such evidence;
Decision should not be made without trial. and
b. That due diligence has been used to procure it.
Exceptions: A civil case may be adjudicated upon
without the need for trial in any of the following cases: If the adverse party admits the facts to be given in
1. Judgment by default if the court does not require the evidence, the trial will not be postponed even if he
claimant to submit evidence; objects or reserves the right to object to their
2. Judgment on the Pleading (Rule 34); admissibility (Feria, p. 565).
3. Summary Judgment (Rule 35);
4. Judgment on Compromise; Note: This section does not apply to criminal cases
5. Judgment by Confession; as the rule on postponements in criminal cases is
6. Dismissal with Prejudice (Rule 17); governed by Sec. 2, Rule 119.
7. Judgment under Rule on Summary Procedure; and

SECTION 4. REQUISITES OF MOTION TO Plaintiff presents evidence

POSTPONE TRIAL FOR ILLNESS OF PARTY
OR COUNSEL
Requisites: Defendant Defendant files

1. A motion for postponement stating the ground relied
presents evidence demurrer to
upon must be filed; and
2. The motion must be supported by an affidavit or to support his evidence
sworn certification showing: defense/
a. The presence of such party or counsel at the trial counterclaim/
is indispensable; and crossclaim/ If court grants
b. That the character of his illness is such as to render motion:
his non-attendance excusable. Third-party
complaint Renders dismissal
Postponements are addressed to the sound discretion
of the court. In the absence of grave abuse of Third-party If court denies
discretion, it cannot be controlled by mandamus (Olsen defendant presents motion:
v. Fressel & Co., G.R. No. 12955, November 8 1917).
evidence, if any
Continues with
SECTION 5. ORDER OF TRIAL hearing
Trial is required only if there are triable issues.
Parties against
If there is no triable issue, the court will render a whom a
judgment. counterclaim or
cross-claim is
Note: Subject to Section 2 of Rule 31 and unless the
court for special reasons, otherwise directs, the trial pleaded presents
shall be limited to the issues stated in the pre -trial evidence in their
order. defense
Reverse order of trial: In this situation, the defendant

Rebuttal evidence
presents evidence ahead of the plaintiff.
by parties
When proper: If the defendant in his answer relies
After presentation
upon an affirmative defense, a reverse order of trial is
of evidence:
proper. 1. Oral arguments
Ratio: Plaintiff need not have to present evidence since Decision 2. Submission of
judicial admissions do not require proof (Sec. 2, Rule memoranda
129).
Note: E vidence offered in rebuttal is not automatically SECTION 6. AGREED STATEMENTS OF FACT
excluded just because it would have been more
properly admitted in the case in chief ( Regalado, This is known as Stipulation of Facts and is among
th the purposes of a pre-t rial. Under the Rules, it must be
Remedial Law Compendium, Volume 1, 9 Ed., p. 378).
in writing. But it may als o be verbally made in open
court.
Stipulation of facts verbally made is binding, i.e., those

facts given during pre-trial conference.
However, stipulation of facts in criminal cases must at

all times be in writing.
Note: If no evidence is presented and the case is

submitted for decision on an agreement of the parties,
the court should render judgment in accordance with
said agreement. The court cannot impose upon the
parties a judgment different from their compromise
agreement.

However, the compromise agreement must not be Consolidation

contrary to law, morals, good customs, public order and
public policy (Philippine Bank of Communications v. Involves several actions having a common question of
Echiverri, G.R. No. L-41795, August 29, 1980). law or fact which may be jointly tried.
Stipulations of Facts (SOF) are not permitted in actions Severance

for annulment of marriage and for legal separation. Cont emplates a single action having a number of
claims, counterclaims, cross-claims, third-party
complaints, or issues which may be separately tried.
SOF in Civil Cases SOF in Criminal Cases
SECTION 1. CONSOLIDATION
May be signed by the
Must be signed both by General Rule: Consolidation is discretionary upon the
counsel alone who has a
the counsel and the court.
special power of
accused.
attorney. Exceptions: Consolidation becomes a matter of duty
May be made verbally or Strict; It must always be when the cases are:
in writing. in writing. 1. Pending before the same judge; or
2. Filed with different branc hes of the same RTC and
one of such cases has not been partially tried.
SECTION 7. STATEMENT OF JUDGE Purpose: To avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested
SECTION 8. SUSPENSION OF ACTIONS dockets, simplify the work of the trial court and save
unnecessary costs and expenses.
Under, Article 2030 of the Civil Code: E very civil action
or proceeding shall be suspended: Requisites for consolidation:
1. If willingness to discuss a possible compromise is 1. Actions which involve a common question of law or
expressed by one or both parties; or fact; and
2. If it appears that one of the parties, before the 2. There must be at least 2 actions pending before the
commencement of the action or proceeding, offered same court.
to discuss a possible compromise but the other party If filed with different courts, an authorization from the
refused the offer. Supreme Court is necessary.
SECTION 9. JUDGE TO RECEIVE EVIDENCE; Three (3) ways of consolidating cases

DELEGATION TO CLERK OF COURT. 1. By recasting the cases already instituted - Reshaping
of the cases by amending the pleading and
General Rule: The judge shall personally receive and
dismissing some cases and retaining only one case.
resolve the evidence to be adduced by the parties. There must be joinder of causes of action and of
However, the reception of such evidence may be parties;
2. By consolidation proper or by consolidating the
delegated under the following conditions:
existing cases – It is a joint trial with joint decision, the
1. The delegation may be made only in defaults or ex- cases retaining their original docket numbers; and
parte hearings, and in any case where the parties 3. By test-case method - by hearing only the principal
agree in writing; case and suspending the hearing on the other cases
2. The reception of evidence shall be made only by the until judgment has been rendered in the principal
clerk of that court who is a member of the bar; case. The cases retain their original docket numbers.
3. Said clerk shall have no power to rule on objections
to any question or to admission of evidence or Cons olidation of cases on appeal and assigned to
exhibits; and different divisions of the SC and the CA is also
4. He shall submit his report and transcripts of the authorized.
proceedings, together wit h the objections to be
resolved by the court, within 10 days from the Note: The consolidation of civil with criminal cases is
termination of the hearing. allowed. This is now sanctioned under Section 2(a),
Rule 111 of the Rules of Criminal Procedure (Canos v.
Peralta, G.R. No. L-38352, Aug. 19, 1982).
RULE 31
SECTION 2. SEPARATE TRIALS
C ONSOLIDAT ION OF S EVERANCE

Requisites of the order of reference:

RULE 32
1. It must state the purpose;
T RIAL BY C OM M ISSIONER 2. It must be in writing; and
3. It may specify or limit the power of the commissioner.
SECTION 1. REFERENCE BY CONSENT Powers of Commissioner (RASIR)
Commissioner 1. Exercise power to regulate the proceedings before
him;
A person to whom a case pending in court is referred,
2. Do all acts and take all measures necessary or
for him to take testimony, hear the parties and report
proper for the efficient performance of his duties;
thereon to the court, and upon whose report, if 3. Swear witnesses;
confirmed, judgment is rendered (2 Martin, p. 142). 4. Issue subpoenas and subpoenas duces tecum;
5. Unless otherwise provided in the order of reference,
Referenc e to a commissioner may be had by the written
rule upon the admissibility of evidence.
consent of both parties.
Note: Requirement of hearing cannot be dispensed
General Rule: Trial by commissioner depends largely with as this is the essence of due process.
upon the discretion of the court; but the following are
SECTION 4. OATH OF COMMISSIONER
instances when such appointment is mandatory:
1. Expropriation (Rule 67);

SECTION 5. PROCEEDINGS BEFORE THE
2. Partition (Rule 69); COMMISSIONER
3. Settlement of Estate of a Deceased Person in case of
contested claims; and SECTION 6. FAILURE OF PARTIES TO
4. Submission of accounting by executors or APPEAR BEFORE COMMISSIONER
administrators.
Note: An irregularity in the appointment of a Where the order was merely to examine the accounts
involved in the counterclaim wit hout any direction to
Delegation to Clerk of Trial by Commissioner hold hearings, the commissioner do not need the
Court presence of the parties (Froilan v. Pan Oriental
Shipping, G.R. No. L-6060, September 30, 1954).
Clerk of court must be a Commissioner need not
lawyer. be a lawyer. SECTION 7. REFUSAL OF WITNESS
Clerk of court cannot rule Commissioner can rule Disobedience to a subpoena issued by the
on objections or on the on objections or on commissioner is deemed a contempt of the court which
admissibility of evidence. admissibility of evidence. appointed the latter.
Delegation is made Commissioner can be

SECTION 8. COMMISSIONER SHALL AVOID
during trial. appointed even after the DELAYS
case has bec ome final SECTION 9. REPORT OF COMMISSIONER
and executory.
SECTION 10. NOTICE TO THE PARTIES OF
commissioner must be seasonably raised in the trial
THE FILING OF REPORT
court where the defect could still be remedied. It can be
waived by consent of the parties, express or implied. Upon the filing of the report of the commissioner:
SECTION 2. REFERENCE ORDERED ON 1. The parties shall be notified by the clerk; and
MOTION 2. The parties shall be allowed 10 days within which to
object to the findings of the report.
Situations when reference to a Commissioner may be Note: Objections to the report based upon grounds
made on motion: (ETC-Q) which were available to the parties during the
proceedings before the commissioner shall not be
1. Examination of a long account;
considered by the court, unless they were made before
2. Taking of an account is necessary;
the commissioner.
3. Carrying a judgment or order into effect; or
4. Question of fact, other than upon the pleading arises. SECTION 11. HEARING UPON REPORT
SECTION 12. STIPULATIONS AS TO FINDINGS
SECTION 3. ORDER OF REFERENCE;
POWERS OF THE COMMISSIONER

When the parties stipulate that a commissioner’s finding Two Scenarios

shall be final, only questions of law shall thereaft er be
considered. Motion Granted But
Motion Denied
Reversed On Appeal
SECTION 13. COMPENSATION OF
COMMISSIONER Movant is deemed to
have waived his right to
present evidence. The
decision of the appellate
RULE 33 Movant shall have the court will be based only
D EM URRER T O E VIDENCE right to present his on the evidence of the
evidence. plaintiff as the
SECTION 1. DEMURRER TO EVIDENCE defendant loses his right
to have the case
Demurrer to Evidence
remanded for reception
A motion to dismiss based on the ground of of his evidence.
insufficiency of evidence and is presented after the
plaintiff rests his case. Order of the court is an
adjudication on the
When can we say that the plaintiff already rested Denial is interlocutory.
merits. Hence, the
his ca se? After the completion of the presentation of Sec. 1, Rule 36 (That
requirement in Sec. 1,
his evidence (Riano, p. 517). judgment should state
Rule 36 should be
clearly and distinctly the
complied with.
Nature: There is only a one-sided trial, i.e., it is only the facts and the law on
plaintiff who has presented evidence. which it is based), will
not apply.
Purpose: To discourage prolonged litigations. It is an
aid or instrument for the expeditious termination of an The denial is not
action similar to a motion to dismiss which the court or appealable.
tribunal may either grant or deny (Nepomuceno v.
Comelec, G.R. No. L-60601, December 29, 1983).
Demurrer To Evidence Motion To Dismiss

(Under Rule 16) Civil Cases Criminal Cases
It is presented after the Presented before a Defendant need not ask May be filed with or
plaintiff has rested his responsive pleading for leave of court. The without leave of court.
case. (ans wer) is made by the defendant does not Leave of court is
defendant. waive his right to offer necessary so that the
evidence in the event his accused could pre sent
The ground is based on It may be based on any motion is denied (Albano, his evidence if the
p.402). demurrer is denied.
insufficiency of evidence. of those enumerated in
Rule 16. If t he court finds plaintiff’s If the court finds the
evidence insufficient, it prosecution’s evidence
If the motion is denied, If the motion to dismiss will grant the demurrer by insufficient, it will grant
the defendant may is denied, the defendant dismissing the complaint. the demurrer by
present his evidence. may file his responsive rendering judgment
pleading. acquitting the accused.
Judgment of acquittal is
If the motion is granted, If the motion to dismiss not appealable; double
the complaint is is granted, the complaint jeopardy sets-in.
dismissed. The remedy is dismissed and
of the plaintiff is appeal. depending on the
ground, the complaint
may be re-filed.

Civil Cases Criminal Cases The “facts” referred to in resolving the motion should
include all the means sanctioned by Rules of Court in
The judgment of Judgment of acquittal is ascertaining matters in judicial proceedings such as
dismissal is appealable. not appealable; double judicial admissions, matters of judicial notice,
If plaintiff appeals and jeopardy sets-in. stipulations made during the pre-trial and trial,
judgment is reversed by admissions, and pres umptions, the only exclusion being
the appellate court, it will the defendant’s evidence (Casent Realty and Dev. Corp.
decide the case on the v. Phil. Bank ing Corp. G.R. No. 150731, S eptember 14,
basis of the plaintiff’s 2007).
evidence with the
consequence that the
defendant already loses RULE 34
his right to present J UDGM ENT ON T HE P LEADINGS
evidence; There is no res
judicata in dismissal due
to demurrer. Judgment on the Pleadings
If court denies the If court denies the A judgment rendered by the court if the answer fails to
demurrer, defendant will demurrer: tender an issue, or otherwise admits the material
present his evidence. allegations of the adverse party’s pleading. It will not
apply when no ans wer is filed. It is rendered without a
trial, or even without a pre-trial.
If demurrer was with
leave, accused may An ans wer f ails to tender an issue when the material
present his evidence. allegations of the other party are admitted or not
specifically denied by the pleader.
The judgment is based exclusively upon the allegations

If demurrer was without
appearing in the pleadings of the parties and the
leave, accused can no annexes thereto, if any, without consideration of any
longer present his
evidence aliunde.
evidence and submits
the case for decision SECTION 1. JUDGMENT ON THE PLEADINGS
based on the
prosecution’s evidence. A judgment on the pleadings must be on motion of the
claimant. However, if at the pre-trial the court finds that
a judgment on t he pleadings is proper, it may render
such judgment motu proprio (Sec. 2g, Rule 18).
Judgment on demurrer to evidence is a judgment
rendered by the court dismissing a case upon motion of One who prays for judgment on the pleadings without
the defendant, made after plaintiff has rested his case, offering proof as to the truth of his own allegations and
on the ground that upon the facts presented and the without giving the opposing party an opportunity to
law on the matter, plaintiff has not shown any right to introduce evidenc e, must be understood to admit all
relief. material and relevant allegations of the opposing party
and to rest his motion for judgment on those allegations
Note: The requirement under this Rule would apply if
taken together with such of his own as are admitted in
the demurrer is granted, for in this event, there would in
the pleadings (Falcas antos v. How Suy Ching G.R. No.
fact be adjudication upon the merits of the case, leaving
L-4229, May 29, 1952).
nothing more to be done (Nepomuceno v. COMELEC,
G.R. No. L-60601, December 29, 1983). Allegations not deemed admitted by filing of
judgment on the pleadings:
The granting of judgment on demurrer to evidence is
correctible by a writ of error (appeal); certiorari will not 1. Irrelevant allegations;
lie unless there is grave abuse of discretion. 2. Immaterial allegations; and
3. Allegations of damages in the complaint.
The evidence c ontemplated by the rule on demurrer is
that pertains to the merits of the case, excluding Grounds for judgment on the pleadings
technical aspects such as capacity to sue (Celino v.
Heirs of Alejo and Teres a Santiago, G.R. No. 161817, 1. The answer fails to tender an issue because of:
July 30, 2004). a. General denial of the material allegations of the
complaint;

b. Insufficient denial of the material allegations of t he However, summary judgments are made specifically
complaint; or applicable to a special civil action for declaratory relief
2. The answer admits material allegations of the (Rule 63).
adverse party’s pleading.
SECTIONS 1 & 2. SUMMARY JUDGMENT FOR
Note: By moving for judgment on the pleadings, CLAIM ANT; SUMMARY JUDGMENT FOR
plaintiff waives his claim for unliquidated damages. DEFENDING PARTY
Claim for such damages must be alleged and proved.
Who can file:
No judgment on the pleadings in actions for:
1. Plaintiff (includes a claimant in a counterclaim or
1. Declaration of Nullity of Marriage; cross-claim or obtaining declaratory relief): May
2. Annulment of marriage; and file the motion at any time after the answer has been
3. Legal Separation. served, and therefore, must wait until the issues have
4. When the issue is the amount of unliquidated been joined.
damages (Abubak ar Tan v. Tian Ho, G.R. No. L- 2. Defendant (include s a defendant in a
18820, December 29, 1962, Delfin v. CAR, G. R. No. counterclaim, cross-claim or in a declaratory
L-23348, March 24, 1967). relief): He can move for summary judgment at any
5. When only conclusions of law are being alleged. time.
Test: Whether or not the pleadings, affidavits and
Motion to Dismiss Motion for judgment exhibits in support of the motion are sufficient to
on the pleadings overcome the opposing papers and to justify the finding
that, as a matter of law, there is no defense t o the
Filed by a defendant to a Filed by the plaintiff if the action or claim is clearly merit orious (Estrada v.
complaint, counterclaim, answer fails to tender an Consolacion, et al., G.R. No. L-40948, June 29, 1976).
rd
cross-claim or 3 -party issue
SECTION 3. MOTION AND PROCEEDINGS
complaint.
THEREON
Note: If the complaint states no caus e of action, a The motion must also satisfy the requirements under
motion to dismiss should be filed and not a motion for Rule 15.
judgment on the pleadings.
After hearing, the judgment shall be rendered if the
A Motion for Judgment on the Pleadings is one that is pleadings, supporting affidavits, depositions, and
considered ex parte because upon particular facts thus admissions on file, show that except as to the amount
presented, the plaintiff is entitled to judgment, or motu of damages, there is no genuine issue.
proprio under Rule 18 (2g) (Dino v. Valencia, G.R. No.
L-43886, July 19, 1989). SECTION 4. CASE NOT FULLY ADJUDICATED
ON MOTION
This authorizes rendition of partial summary judgment
RULE 35
but such is interlocutory in nature and is not a final and
S UM M ARY J UDGM ENT S appealable judgment (Guevarra v. Court of Appeals,
G.R. No. L-49017, August 30, 1983).
Summary Judgment
SECTION 5. FORM OF AFFIDAVITS AND
A judgment rendered by a court without trial if it is clear SUPPORTING PAPERS
that there exist no genuine i ssue or controversy as to
any material fact, except as to the amount of damages. Requisites of affidavits:
It is also called accelerated judgment
1. Based on personal knowledge;
Genuine Issue 2. Set forth facts as would be admissible in evidence;
3. Show affirmatively that affiant is competent to testify
An issue of fact which calls for the presentation of on matters stated therein; and
evidence as distinguished from an issue which is a 4. Certified copies of all papers must be attached
sham, fictitious, contrived, and patently unsubstantial so thereto and served on the opposing party.
as not to constitute a genuine issue for trial.
SECTION 6. AFFIDAVITS IN BAD FAITH
An action for annulment of marriage cannot be decided
by summary judgment proceeding (Roque v. Sanctions:
Encarnacion, G.R. No. L-6505, August 23, 1954). 1. Pay to the other party the amount of the reasonable
expenses including attorney’s fees; and

2. After hearing, adjudge the offending party or counsel defendant, may

guilty of contempt. be filed at any
Note: It is in the nature of indirect contempt. time even
before there is
Bases of summary judgment
an answer.
1. Affidavits made on personal knowledge
2. Depositions of the adverse party or a third party
under Rule 23
3. Admissions of the adverse party under Rule 26; and
4. Answers to interrogatories under Rule 25. All
intended to show that: RULE 36
a. There is no genuine issue as to any material fact, J UDGM ENT S , F INAL O RDERS , AND
except damages which must always be proved; and
b. The movant is entitled to a judgment as a matter of E NT RY T HEREOF
law.
Judgment
E ven if the answer does tender an issue, and therefore The final consideration and determination by a court of
a judgment on the pleadings is not proper, a summary competent jurisdiction regarding the rights or other
judgment may still be rendered if the issues tendered matters submitted to it in an action or proceeding.
are not genuine, are sham, fictitious, contrived, set-up
in bad faith, and patently unsubstantial (Vergara v. Parts of a judgment
Suelto, G.R. No. L-74766, December 21, 1987). 1. The opinion of the court – Contains the findings of
facts and conclusions of law;
Summary Judgment on Judgment by 2. The disposition of the case – The final and actual
Judgment the Pleadings Default disposition of the rights litigated (the dispositive part);
(Rule 9) and
Based on the Based solely Based on the 3. Signature of the judge (Herrera, p. 145).
pleadings, on the complaint and
depositions, pleadings. evidence, if SECTION 1. RENDITION OF JUDGMENTS AND
admissions presentation is FINAL ORDERS
and affidavits. required. Requisites of a valid judgment:
A vailable to Generally A vailable to 1. The court or tribunal must be clothed wit h authority to
both plaintiff available only plaintiff. hear and determine the matter before it;
and defendant. to the plaintiff, 2. The court must have jurisdiction over the parties and
unless the the subject matter;
defendant 3. The parties must have been given an opportunity to
presents a be heard;
counterclaim. 4. The evidence must have been considered by the
tribunal in deciding the case;
There is The answer No issue as no Formal Requisites:
no genuine fails to tender answer is filed
5. It should be in writing, personally and directly
issue between an issue or by the
prepared by the judge;
the parties, i.e. there is an defending 6. It must state clearly and distinctly the facts and the
there may be admission of party.
law on which it is based; and
issues but material
7. It should contain a dispositive part and should be
these are allegations. signed by the judge and filed with the clerk of court.
irrelevant.
10-day notice 3-day notice 3-day notice General Rule: Where there is conflict between the
required. required. rule applies. dispositive portion or the fallo and the body of the
May be On the merits. On the merits. decision, the f allo controls. This rule rests on t he theory
interlocut ory or that the fallo is the final order. However, when the
on the merits. conclusion from the body of the decision is clear as to
show that there was a mistake in the dispositive portion,
the body of the decision will prevail.
If filed by There is There is no
plaintiff, it must already an answer filed.
Kinds of Judgments
be filed at any answer filed. 1. Judgment upon compromise;
time after an 2. Judgment upon confession;
answer is 3. Judgment upon the merits;
served; 4. Clarificatory judgment;
5. Judgment non pro tunc (Now for then);
If filed by 6. Judgment sin perjuicio;

7. Judgment by default (Sec. 3, Rule 9);

8. Judgment on the pleadings (Rule 34); Two kinds of judgment by confession
9. Summary judgment (Rule 35); 1. Judgment by cognovit actionem – The defendant
10. Several judgment (Sec. 4, Rule 36); after service instead of entering a plea,
11. Separate judgment (Sec. 5, Rule 36); acknowledged and confessed that the plaintiff’s
12. Special judgment (Sec.11, Rule 39); cause of action was just and rightful.
13. Judgment for specific acts (Sec. 10, Rule 39); 2. Judgment by confe ssion relicta verifi catione –
14. Judgment on demurrer to evidence (Rule 33); After pleading and before trial, the defendant both
15. Conditional judgment; confessed the plaintiff’s cause of action and
16. Final judgment; withdrew or abandoned his plea or ot her allegations,
17. Amended judgment; and whereupon judgment was entered against him
18. Supplemental judgment without proceeding to trial.
A. Judgment upon a compromi se – It is one Note: Remedy against judgment by consent,

rendered by the court on t he basis of a c ompromise confession or compromise is to first file a Motion to
agreement entered into bet ween the parties set it aside, then if denied file the appropriate
(Diamond Builders Conglomeration v. Country petition under Rule 65 (Sec.1 Rule 41).
Bank ers Corp., G.R. No. 171820, December 13,
2007). C. Judgment upon the merits – one that is
rendered after consideration of the evidence
It is covered by Articles 2028 to 2046 of the New Civil submitted by the parties during the trial of the case.
Code.
Note: There can be a judgment on the merits even if
Judgment upon a compromise cannot be entered into there is no trial. A ruling bas ed on a motion to dismiss,
by counsel without the knowledge and special without any trial or formal presentation of evidence,
authority of t he client. It is immediat ely executory can still be a judgment on the merits (Riano, p. 418)
upon the signing of the compromise agreement in the
absence of a motion to set aside on the ground of D. Clarificatory judgment – one rendered to
fraud, mistake, etc. Hence, it has the effect of res clarify an ambiguous judgment or one diffic ult to
judicata (World Machine Enterprises v. Intermediate comply with.
Appellate Court, G.R. No. 72019, December 20,
1990). Where the judgment is difficult to execute because of
ambiguity in its terms, the remedy is to file a motion
The judgment is based upon the compromise for clarificatory judgment and not to assail the
agreement of the parties so long as the agreement is judgment as void (Riano, p. 405).
not contrary to law.
Amended or Clarified Supplemental Decision
The parties may submit to a compromise agreement Judgment
at any stage of the case, even if judgment has
already bec ome final and executory, even wit hout It is an entirely new It does not supersede the
approval of the court. decision and supersedes original decision.
the original judgment.
It cannot be annulled unless it is vitiated with error, Court makes a thorough Serves to bolster or add
deceit, violence or forgery of documents (Morales v.
study of the original to the original judgment.
Fontanos, G.R. No. 43299, January 29, 1937; Article judgment and renders
2038, Civil Code). the amended and
clarified judgment only
A compromise has the effect of res judicata upon the after considering all the
parties. Substantive law does not require a court factual and legal issues.
approval for the res judicata effect of a compromise
agreement to attach.
E. Judgment nunc pro tunc (literally, “now for
Advantage of approval of court: The court could then”) – a judgment intended to enter into the record
render a judgment based upon a compromise and in the acts which had already been done, but which do
case of breach of any of the conditions, the party may not appear in the records (Lichauco v. Tan Pho, G.R.
ask the court for Execution of Judgment under Rule No. 19512, November 21, 1923). Its purpose is not to
39. supply an omitted action by the court but to enter into
the record an action previously done but which was
B. Judgment by confe ssi on – It is one rendered not reflected in the record by reason of inadvert ence
by the court when a party expressly agrees to the or mistake.
other party’s claim or acknowledges the validity of the
claim against him (Natividad v. Natividad, G.R. No. F. Judgment sin perjuicio – may refer to a
28296, March 2, 1928). dismissal of a case without prejudice to its being re-

filed. It is one which contains only the dispositive Promulgation of Judgment

portion of the decision and reserves the making of
findings of fact and conclusions of law in a Court renders Accepts If no appeal is
subsequent judgment. It does not state the facts and
the law upon which it is based. It is a void judgment.
decision decision taken or did not
with avail of
G. Several judgment (See Section 4) Losing party further remedies,
contest judgment
H. Separate judgment (See Section 5) becomes final
I. Conditional judgment – one wherein the effectivity and executory.
of which depends upon the occurrence or non- File an appeal
occurrence of an event. As a general rule, judgments within 15/30
of such kind, conditioned upon a contingency, are days from
held to be null and void (Cu Unjieng y Hijos v. If granted, the court:
notice of
Mabalacat Sugar Co., G.R. No. 45351, June 29,
1940). judgment. 1. Modifies decision;
or
J. Incomplete judgment – one which leaves certain
matters to be settled in a subsequent proceeding 2. Grants new trial
(Ignacio v. Hilario, G.R. No. L-175, April 30, 1946).
There is a decision but there are still other matters to File a motion for If denied, losing party
be incorporated later in such decision. reconsideration or may appeal within a
motion for new trial fresh 15-day period
within 15/30 days
Judgment upon Judgment by from notice of (Neypes vs. Court of
Compromise Confession
judgment. Appeals.)
The provisions and An affirmative and
terms are settled and voluntary act of the
agreed upon by the defendant himself. The
parties to the action, court exercises a The power to amend a judgment is inherent in the court
and whic h is entered in certain amount of before judgment becomes final and executory.
the record by the supervision over the
consent of the court. entry of judgment. When judgment becomes final
The parties bargain It is unilateral which 1. When the period for perfecting an appeal has lapsed;
and agree on the terms comes from the 2. When the sentence is partially or totally satisfied or
and conditions of their defendant himself who served;
agreement. There is a admits liability and 3. When the accused expressly waives in writing his right to
mutual or reciprocal accepts the judgment appeal; and
concession. to be rendered against 4. When the accused applies for probation.
him.
Effects of finality of judgment
1. The prevailing party is entitled to ex ecution as a matter of
Promulgation right;
Promulgation refers to the process by which a decision 2. Immutability of judgment;
is published, officially announced, made known to the 3. Res Judicata.
public or delivered to the clerk of court for filing, coupled
with notice to the parties or their counsel. General Rule: After judgment has become final and
executory, it becomes immutable and unalterable,
Memorandum Decision that is, it can no longer be modified.
A decision of the appellate court which adopts the
findings and the conclusion of the trial court. B.P. Blg. Exceptions:
129 provides that “E very decision or final resolution of 1. To make corrections of clerical errors, not substantial
the court in appealed cases shall clearly and distinctly amendments, as by an amendment non pro tunc;
state the findings of fact and the conclusions of law on 2. To clarify an ambiguity which is borne out by and
which it is based, which may be cont ained in the justifiable in the context of the decision;
decision or final resolution itself, or adopted from those 3. Where the judgment is void; or
set forth in the decision, order, or resolution appealed 4. In judgments for support which can always be
from.” amended from time to time.
Rule: The validity of a judgment or order of a court

cannot be collaterally attacked.
One rendered by a court disposing of a claim, among

Exceptions: several others, presented in a case after determination
1. Lack of jurisdiction; and of the issues material to a particular claim and all
2. Irregularity of its entry apparent from the face of the counterclaims arising out of transaction or occurrence,
record. which is the subject matter of said claim.
A judge permanently trans ferred to another court of It is proper when more than one claim for relief is
equal juri sdiction (coordinate court) c an render a presented in an action and a determination as to the
decision on a case in his former court whic h was totally issues material to the claim has been made. The action
heard by him and submitted for decision, with the shall proceed as to the remaining claims.
parties having argued the case (V alentin v. Sta. Maria,
G.R. No. L-30158, January 17, 1974). Remedies against judgments or final orders
A. Before finality of judgment or final order:
Minute resolutions of the Supreme Court denying 1. A motion for reconsideration;
petition to review the decision of the Court of Appeals 2. A motion for new trial; or
are not decisions within the requirement of Sec. 1, Rule 3. An appeal.
36 (Commercial Union Assn. Co., Ltd. v. Lepanto B. After the finality of the judgment or final order:
Cons olidated Mining Co., G.R. No. L-43342, October 1. Relief from judgment or final order;
30, 1978). 2. An annulment of judgment;
3. A petition for certiorari; and
SECTION 2. ENTRY OF JUDGMENTS AND FINAL 4. Collateral attack of a judgment.
ORDERS
The date of finality of the judgment or final order shall
be deemed to be the date of its entry. RULE 37
Illustration:
NEW T RIAL OR RECONSIDERAT ION
When the lower court rendered judgment, the parties
did not appeal nor file a motion for new trial or SECTION 1. GROUNDS O F AND P ERI OD FOR
reconsideration. Thus, the judgment became final and
FILING MOTION FOR NEW TRIAL OR
executory. Let us say that it became final and executory
RECONSIDERATION
on February 14, 2012. The clerk of court entered the
same in the Book of Entries of Judgments only on Formal requisites of a motion for new trial or
February 29, 2012. Based on the above rule, the date reconsideration
of entry (February 29) retroacts to February 14.
1. Must be in writing;
Note: Entry of judgment or final order assumes 2. A written notice must be served on the adverse party;
importance in reckoning some reglementary periods, and
such as the 5-year period for execution by motion (S ec. 3. Must state the ground/s therefore.
6, Rule 39) or the 6-month period for a petition for relief
(Sec. 3, Rule 38) (Regalado, p. 413). New Trial
SECTION 3. JUDGMENT FOR OR AGAINST ONE OR The rehearing of a case already decided by the court
MORE OF SEVERAL PARTIES but before the judgment rendered thereon becomes
final and executory, whereby errors of law or
SECTION 4. SEVERAL JUDGMENTS irregularities are expunged from the record or new
evidence is introduced, or both steps are taken.
Several Judgment
One rendered by a court against one or more Note: Rule 9 Sec 3(b) on the rules from order of default
defendants and not against all of them leaving the and Rule 37 on motion for new trial has the same
action to proceed against the others. grounds – FAME. Rule 37 could also be a remedy in
case the defendant who is declared in default failed to
Several judgment is proper where the liability of each avail of the remedy in Rule 9 S ec 3(b) and as a res ult, a
part is clearly separable and distinct from his co-parties judgment has already been rendered. This is because
such that the claims against each of them could have
Rule 37 is broader.
been the subject of separate suits, and the judgment for
or against one of them will not necessarily affect the One remedy available to a party declared in default is, If
other. A several judgment is not proper in action the judgment has already been rendered when the
against solidary debtors (Fernandez v. Sta. Maria, G.R. defendant discovered the default, but before the same
No. 160730, December 10, 2004).
has bec ome final and executory, he may file a Motion
for New Trial under Section 1 (a) of Rule 37 (Cerezo v.
SECTION 5. SEPARATE JUDGMENTS
Tuazon, G.R. No. 141538, March 23, 2004).
Separate Judgment
Rule 9 Section 3(b) v. Rule 37 Motion For A Motion For

Reconsideration
Rule 9, S ection 3 (b) – after notice of the order of New Trial
default but before judgment
Rule 37 – if there is already a judgment but not yet final final order is vacat ed. have been awarded or
The case stands for trial that the judgment or
and executory. During the period of filing an appeal.
de novo and will be final order is contrary to
Reconsideration tried anew. the evidence or law, it
may amend such
The motion for reconsideration under this Rule is one judgment or final order
that is directed against a judgment or final order, not of accordingly.
an interlocutory order whic h for instance, precedes a
petition for certiorari (Riano, p. 427). A vailable even on A vailable against the
Note: A motion for reconsideration of a judgment or appeal but only on the judgments or final
new trial is a prohibited motion in a case that falls under ground of newly orders of both the trial
Summary P rocedure (S ec. 19[c], IV Rules on Summary discovered evidence. and appellate courts.
Procedure; Bar 1989, 1990). It is also prohibited under
The Rule of Procedure for Small Claims (Sec.14(c), Both are prohibited motions under
A.M. No. 08-8-7 SC, September 9, 2008). Summary Procedure.
When and where to file a motion for a new trial or
reconsideration
Fraud: Fraud as a ground for new trial must be
When to file: Within the period for taking an appeal extrinsic.
(within 15 or 30 days from notice of the judgment). No
motion for extension of time to file a motion shall be Extrinsic Fraud
allowed.
Connotes any fraudulent scheme execut ed by the
Where to file: With the trial court which rendered the prevailing party outside of the trial against the losing
questioned judgment. party who because of such fraud is prevent ed from
presenting his side of the case (ex. prevent witness
Motion For A Motion For from testifying).
Reconsideration
New Trial Intrinsic Fraud
Grounds: fraud, Grounds: damages Refers to acts of a party during the trial which does not
accident, mistake or awarded are excessive, affect the present ation of the case (ex. presentation of a
excusable negligence that the evidence is forged promissory note).
or newly discovered insufficient to justify the Accident
evidence which could decision or final order,
not, with reasonable or that the decision or An event that takes place without one’s foresight or
diligence, have been final order is contrary to expectation (ex. a party, after being hit with a car, fails
discovered and law. to attend the trial).
produced at the trial,
and which if presented Mistake
would probably alter the Generally refers to mistakes of fact or law where, in
result. good faith, the defendant was misled in a case (ex. a
part y, relying upon a compromise, fails to ans wer and
Second motion may be Second motion from the was declared in default).
allowed so long as same party is
based on grounds not prohibited. (The Excusable Negligence
existing or available at prohibition applies only
st What constitutes excusable negligence depends upon
the time the 1 motion to final orders or
the circumstances of each case.
was made. judgments; henc e, it is
allowed in interlocutory Rule: Negligence of counsel is binding on the client.
orders.)
Exception: Suc h negligence of counsel may be a
If a new trial is grant ed, If the court finds that ground for new trial if it was so great that the party was
the original judgment or excessive damages

prejudiced and prevented from fairly presenting his evidence before judgment.
case. Specifically:
Based on the FA ME This is based on the
1. Where the gross negligence of the counsel deprives or Newly Discovered interest of justice and upon
the client of due process of law; Evidence. the court’s discretion.
2. When the application of the rule will result in the
outright deprivation of client’s liberty or property; or This is always on This may be done on the
3. Where the interests of justice so require. motion of the party. court’s initiative.
Requisi tes of newly-di scovered evidence (Berry Specifically Not mentioned in the
Rule) mentioned in the Rules but is
Rules. nevertheless a
1. It must have been discovered after the trial; recognized procedural
2. It could not have been discovered and produc ed at recourse deriving
the trial even with the exercise of reasonable
validity and acceptance
diligence; and
from long established
3. The evidence is of such weight that if admitted, would
probably alter the result of the action; and usage.
4. It must be material and not merely collateral,
cumulative or corroborative.
Note: It is actually
These standards, also known as the “Berry” rule, trace mentioned in the Rules
their origin to the 1851 case of Berry v. State of Georgia. of Criminal Procedure
(Rule 119,Sec. 24) and
Newly discovered evidence need not be newly created
as a prohibit ed pleading
evidence. It may and does commonly refer to evidence
in the 1991 Revised
already in existence prior or during trial but which could
Rules on S ummary
not have been secured and pres ented during the trial
Procedure (Sec. 19c).
despite reasonable diligence on the part of the litigant
(Tumang v. Court of Appeals, G.R. Nos.82346 -47, April
17, 1989).
SECTION 2. CONTENTS OF MOTION FOR NEW
Newly Discovered TRIAL OR RECONSIDERATION AND NOTICE
Forgotten Evidence
Evidence THEREOF
E vidence was not E vidence was already A Motion for New Trial:
available to a party available to a party and
1. Based on FAME and must include an affidavit of
during the trial, and was was not able to present it
merit, which states:
discovered only through inadvertence or
a. The nature or character of FAME;
thereafter. negligenc e of counsel; b. The facts constituting the movant’s good and
not a ground for new substantial defense or valid cause of action; and
trial. c. The evidence which he intends to present if his
motion is granted.
2. A motion for new trial, based on newl y di scovered
Note: New trial should be distinguished from the evidence, must contain affidavits of witnesses or duly
exercise of the discretionary power of the court to authenticated documents.
REOPEN a trial for the introduction of additional
A motion for reconsideration must point out the
evidence, to clarify its doubts on material points. This
findings or conclusions not supported by the evidence
discretionary power is subject to no rule other than the
or contrary to law, making express reference to the
paramount interest of justice and will not be reviewed
testimonial or documentary evidence or to the
on appeal unless the exercise thereof is abused (A rce v.
provisions of law alleged t o be contrary to such findings
Arce, G.R. No. L-13035, November 28, 1959).
or conclusions.
An Affidavit of Merits is one which recites the nature

New Trial Reopening of Trial and character of FAME on which the motion is based
and stating the movant’s good and substantial cause of
Proper only after May properly be pres ented action or defense and the evidence he int ends to
promulgation of only after either or both the present if the motion is granted, which evidence should
judgment. parties have formally be such as to warrant reasonable belief t hat the result
offered and closed their of the case would probably be otherwise (P az v.

Inandan, G.R. No. 59, December 20, 1945; Manila Motions for Reconsideration held Pro Forma:
Suret y v. Del Rosario, G.R. No. L -10056, April 30, 1. It was a second motion for reconsideration;
1957). 2. It did not comply with the rule that the motion must
specify specific matters;
Note: A motion for new trial or reconsideration 3. It failed to substantiate the alleged errors;
suspends or tolls the running of the reglementary period 4. It merely alleged that the decision in question was
for appeal except when the same is pro-forma. contrary to law;
5. The adverse party was not given notice thereof.
Note: A pro form a motion is one which does not
satisfy the requirements of the rules and one which will SECTION 3. ACTION UPON MOTION FOR NEW
be treated as a motion intended to delay the TRIAL OR RECONSIDERATI ON
proceedings (Marik ina Development Corp. v. Flojo, G.R.
No. 110801, December 8, 1995). SECTION 4. RESOLUTION OF MOTION
Pro-Forma Motion for New Trial SECTION 5. SECOND MOTION FOR NEW TRIAL
One where the movant fails to mak e reference to the “Single motion” Rule
testimonial and documentary evidence on record or the
A party shall not be allowed to file a second motion for
provisions of law alleged to be contrary to the trial
reconsideration of judgment or a final order (Riano,
court’s conclusion as well as the reasons thereof, or if
2009)
there is no affidavit of merit. The period to appeal is
NOT interrupted by the filing of such motion for new trial. While a second motion for reconsideration is not
allowed, a second motion for new trial is authorized by
Two (2) type s of pro forma motion for new trial
the rules. A motion for new trial shall include all grounds
under Rule 37:
then available otherwise they are deemed waived. A
1. A motion for new trial whic h is not support ed by second motion for new trial, based on a ground not
affidavits of merits – one which does not comply in existing, nor available when the first motion was made
substance or in form with Section 2; and within the period allowed but excluding the time during
2. A second motion for new trial on a ground available which the first motion had been pending.
to the party when the first motion was filed (Section 5).
SECTION 6. EFFECT OF GRANTING OF MOTI ON
FOR NEW TRIAL
Indications of a Pro-Forma Motion For New Trial
When motion is grant ed, the original judgment is
1. It is based on t he same ground as that raised in a thereby vacated and the action stands for trial de novo,
denied motion under Rule 37; but the rec orded evidence taken upon the former trial
2. It contains the same arguments in the opposition to a so far as the same is material and competent to
granted motion to dismiss establish the issues, shall be used at the new trial
3. The new ground alleged in the second motion for new
taking the same.
trial already existed, was available and could have
been alleged in the first motion for new trial which Note: If the order granting a new trial is set aside, the
was denied; original judgment is deemed repromulgated (Pineda v.
4. It is based on the ground of insufficiency of evidence Court of Appeals, G.R. No. L-38196, July 22, 1975).
or that the judgment is contrary to law but does not
specify the supposed defects in the judgment; SECTION 7. PARTI AL NEW TRIAL OR
5. It is based on FAME but does not specify the facts RECONSIDERATION
constituting these grounds and/or is not accompanied
by an affidavit of merit; and SECTION 8. EFFECT OF ORDER FOR P ARTIAL
6. Non-compliance with the requirements of Rule 15. NEW TRIAL
Note: A motion for reconsideration, if based on the SECTION 9. REMEDY AGAI NST ORDER DENYING A
same grounds as that of a new trial, is considered a MOTION FOR NEW TRIAL OR RECONSIDERATION
motion for new trial and has the same effect (Rodriguez
Not certiorari under Rule 65 nor appeal from the denial
v. Rovira, G.R. No. 45252, September 24, 1936).
of the motion but appeal from the judgment or final
Pro Forma Motion for Reconsideration order.
A motion for reconsideration is deemed pro forma if the
Denial of the motion; the “fresh period” rule – if the
same does not specify the findings or conclusions in the
motion is denied, the movant has a fresh period of
judgment which are not supported by the evidenc e or
fift een (15) days from receipt or notice of the order
contrary to law, making express reference to the
denying or dismissing the motion for reconsideration or
pertinent evidence or legal provisions.
for new trial within which to file a notice of appeal. This

“fresh period” rule applies not only to Rule 41, but also Note: This is not applicable to the Supreme Court
to Rule 40, Rule 42, Rule 43 and Rule 45 (Neypes v. because it is not a trier of facts.
Court of Appeals, G.R. No. 141524, September 14,
2005). A petition for relief from judgment together with a
motion for new trial and a motion for reconsideration
are remedies available only to parties in the
An order denying the motion for new trial proceedings where the assailed judgment is rendered.
In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein,
2nd motion for new trial based on grounds not existing or cannot avail of a petition for relief from judgment
available when the 1st motion was filed (Alaban v. Court of Appeals, G.R. No. 156201,
Appeal from the judgment or final order and assign as SECTION 1. P ETITION FOR RELI EF FROM
one of the errors the denial of the motion for new trial JUDGMENT, ORDER OR OTHER PROCEEDING
This remedy presupposes that judgment has already

become final and executory.
Fresh Period Rule: The aggrieved party has a “fresh
period” of 15 days within which to file his appeal. This Nature: Not an independent action but a continuation
applies to Rules 40, 41, 42, 43 and 45 (Neypes v. CA, of the old case. It is filed with the same court which
G.R. No. 141524, September 14, 2005) and to an
decided the case.
appeal in a criminal case.
Grounds:
The fresh period of 15 days becomes signific ant only
when a party opts to file a motion for new trial or 1. When judgment or final order is entered or any other
reconsideration (Riano, Civil P rocedure, 2007 E dition, p. proceeding is thereafter taken against the petitioner
358). through FAME.
2. When petitioner has been prevented from taking an
The fresh period rule does not refer to the period within appeal by FAME.
which to appeal from the order denying the motion for
reconsideration but to the period within which to appeal Note: A petition for relief has been held to be
from the judgment itself because an order denying a applicable to all kinds of special proceedings, such as
motion for reconsideration is not appealable (Riano, p. land registration, intestate settlement, and guardianship
433). proceedings (Regalado, p. 432).
Note: Taking its cue from the earlier case of Neypes, A petition for relief is available not only against a
the Court in one case s et aside the denial of a notice of judgment or final order. Under Sec. 1 of Rule 38, it is
appeal which was purportedly filed five days late. With also available when “any other proceeding is thereafter
the fresh period rule, the 15-day period within which to taken against the petitioner in any court through fraud,
file the notice of appeal was counted from the notice of accident, mistake or excusable negligence”. Thus it was
the denial of the motion for reconsideration (S umaway v. held that a petition for relief is also applicable to a
Urban Bank , Inc., G.R. No. 142534, June 27, 2006). proceeding taken after the entry of judgment or final
order such as an order of execution (Cayetano v.
Effective Dec ember 27, 2007 it is submitted that an Ceguerra, G.R. No. L-18831, January 30, 1965), or an
order denying a motion for reconsideration is no longer order denying an appeal.
assailable by certiorari because of the amendment to
SECTION 2. PETITION FOR RELI EF FROM DENIAL
Rule 41 by A.M. No 07-7-12 SC. The amendment
OF AN APPEAL
obviously seeks to prevent the filing of a petition for
certiorari under Rule 65 based on an order denying a The petition is, in effect, a second opportunity for an
motion for new trial or a motion for reconsideration. The aggrieved party to ask for a new trial. Hence, the
remedy available therefore, would be that prescribed grounds mentioned have the same concepts that they
under Sec. 9 of Rule 37, i.e. to appeal from the have in motion for new trial.
judgment or final order.
Rule 37 Rule 38
A vailable before A vailable after judgment

RULE 38
judgment becomes final has become final and
RELIEF FROM J UDGM ENT S , and executory. executory.
O RDERS OR O T HER P ROCEEDINGS

Applies to judgment s Applies to judgments, final Form and contents of the petition
or final orders only. orders and other
1. The petition for relief must be verified;
proceeding: 2. The petition must be accompanied by an affidavit
Land Registration; showing the FAME relied upon; and
3. The affidavit of merit accompanying the petition must
Special Proceedings; also show the facts constituting the petitioner’s good
and substantial cause of action or defense as the
Order of Execution. case may be.
Grounds: Grounds:
Affidavit of Merit
a. FAME; and a. FAME
One which recites the nature and character of fraud,
b. Newly discovered accident, mistake or excusable Negligence (FAME) on
which the motion is based.
evidence.
It serves as the jurisdictional basis for the court to
Filed within the time to Filed within 60 days from entert ain a petition for relief. However, it is not a fatal
appeal. k nowledge of the judgment defect to warrant denial of the petition so long as the
and within 6 months from facts required to be set out also appear in the verified
entry of judgment. petition.
Instance s when an affidavit of merit is not

If denied, the order of If denied, the order denying
necessary
denial is not a petition for relief is not
appealable, hence appealable; the remedy is 1. Where there is no jurisdiction over the defendant;
remedy is appeal from appropriate civil action 2. Where there is no jurisdiction over the subject matter;
the judgment. under Rule 65. 3. Where judgment was taken by default;
4. Where judgment was entered by mistake or was
Legal remedy. Equitable remedy. obtained by fraud; or
5. Other similar cases.
Motion need not be Petition must be verified.
SECTION 4. ORDER TO FILE AN ANSWER
verified.
This remedy precludes the issuance of summons upon
its filing. If the petition is sufficient in form and in
A party who has filed a timely motion for new trial substance, the court shall issue an order requiring the
adverse parties to ans wer within 15 days from receipt
and/or reconsideration cannot file a petition for relief
thereof. The order shall be served in such manner as
after his motion has been denied. These remedies are
the court may direct, together with copies of the petition
exclusive of each ot her. It is only in appropriat e cases and the accompanying affidavits.
where a party aggrieved by the judgment has not been
able to file a motion for new trial and/or reconsideration Failure to file answer does not warrant declaration of
that a petition for relief can be filed (Francisco v. Puno, default.
G.R. No. L-55694, October 23, 1981).
SECTION 5. PRELIMINARY INJUNCTION PENDI NG
SECTION 3. TIME FOR FILING P ETITION; PROCEEDINGS
CONTENTS AND VERIFICATION (60-6 RULE)
Rule: Execution of judgment is not stayed unless a writ
Sixty (60) days after knowledge of the judgment AND of preliminary injunction is issued by the court.
not more than six (6) months after entry of such
judgment. Upon filing of the petition:
The date of entry of judgment is the date of finality of 1. The court in which the petition is filed may grant such
judgment or final order. Preliminary Injunction as may be necessary for the
preservation of the right of the parties, upon the filing
The two periods for the filing of a petition for relief are by the petitioner of a bond in favor of the adverse
not extendible and never interrupted (i.e. filing of party.
petition for certiorari). Bot h periods must be complied 2. Such injunction shall not di scharge any lien which
with (Phil. Rabbit Bus Lines, Inc. v. Arciaga, G.R. No. the adverse party may have ac quired upon the
29701, March 16, 1987). property of the petitioner.

SECTION 6. PROCEEDI NGS AFTER ANSWER IS 2. It cannot vary the terms of the judgment it seeks to
FILED enforce.
Two hearings under Rule 38 Final Judgment or Order

1. Hearing to determine whether the judgment should One which disposes of the whole subject matter or
be set aside; and terminat es the particular proceedings or action, leaving
2. If in the affirmative, a hearing on the merits of the nothing to be done by the court but to enforce by
case. execution what has been determined.
Note: Failure to file an answer to the petition for relief Note: Judgments and orders become final and
does not constitute default, even without such answer executory by operation of law and not by judicial
the court will still have to hear the petition and declaration. The trial court need not even pronounce
determine its merits (Regalado, p. 447). the finality of the order as the same becomes final by
operation of law. Its finality becomes a fact when the
SECTION 7. PROCEDURE WHERE THE DENIAL OF
reglementary period for appeal lapses, and no appeal is
AN APPEAL IS SET ASIDE
perfected within such period (Testate of Maria Manuel
Remedies if Rule 38 no longer available Vda. De Biascan, G.R. No. 138731, December 11,
2000; Vlason Enterprises v. Court of Appeals, G.R. Nos.
1. Petition for Annulment of Judgment under Rule 47; 121662-664, July 6, 1999).
and
2. A direct or collateral attack if judgment is void ab initio A void judgment for want of jurisdiction is no judgment
for lack of jurisdiction. at all. It cannot be the source of any right nor the
creator of any obligation. All acts performed pursuant to
Note: Under A. M. No. 08-8-7 S C, otherwise k nown as it and all claims emanating from it have no legal effect.
the Rule of P rocedure for Small Claims Cases, a Henc e, it can never become final and any writ of
Motion for New Trial or Reconsideration (Rule 37), and execution based on it is void (Galicia v. Manliquez, G.R.
a Petition for Relief from Judgment (Rule 38) are No. 155785 April 13, 2007).
prohibited pleadings. Both remedies, likewise, are
prohibited pleadings under the Rule on Summary Test to determine whether a judgment or order is
Procedure. final or interlocutory: If t he judgment or order leaves
nothing more for the court to do with respect to the
merits of t he case, it is a final order. Otherwise, it is an
interlocutory order.
RULE 39 Classes of execution
E XECUT ION , S AT ISFACT ION AND
A. As to their nature:
E FFECT OF J UDGM ENT 1. Compulsory execution – known as Execution as a
Matter of Right (Section 1)
2. Discretionary execution – known as Execution
Execution Pending Appeal (Section 2)
B. As to how it is enforced (Section 6):
A process provided by law for the enf orcement of a final 1. Execution by motion
judgment. Enforcement is part of the court’s jurisdiction. 2. Execution by independent action
It is the fruit and end of suit (Ayo v. Violago-Isnani, A.M.
No. RTJ-99-1445, June 21, 1999). SECTION 1. EXECUTION UP ON JUDGMENTS AND
FINAL ORDERS.
Against whom issued: Execution can only issue
against a party and not against one who never had his Execution as a matter of right
day in court.
1. On motion;
Writ of Execution 2. Upon a judgment or order that dispos es of the action
or proceeding;
A judicial writ issued to an officer authorizing him to 3. Upon expiration of the period to appeal therefrom and
execute the judgment of the court. no appeal has been duly perfected.
Essential requisites of a writ of execution General Rule: It is a matter of right on the part of the
winning party. The court cannot refuse execution.
1. A writ of execution to be valid, must conform strictly to
the decision or judgment which gives it life; and
Unless: (I-NEED-U-VIP)

1. Where the judgment turns out to be incomplete or 1. Where there is ambiguity, the body of the opinion
conditional; may be referred to for purposes of construing the
2. Judgment novated by subsequent agreement of the judgment because the dispositive part of a decision
parties; must find support from the decision’s ratio decidendi
3. Equitable grounds like a change in situation of the (Mutual Security Ins. Corp. v. Court of Appeals, G.R.
parties which makes execution inequitable No. L-47018, September 11, 1987);(The Insular Life
(Supervening fact doctrine); Assurance Company, Ltd. v. Toyota B el-Air, Inc., G.R.
4. Execution is enjoined; NO. 137884, March 28, 2008) and
e.g. Petition for Relief from Judgment or Annulment of 2. Where extensive and explicit discussion and
Judgment with TRO or writ of preliminary injunction settlement of the issue is found in the body of the
decision (Wilson Ong Ching Kian Chung, et al v.
5. Judgment has become dormant except Chinese National Cereals Oil and Foodstuffs Import
support which can be executed by motion; and E xport Corp., et al., G. R. No. 131502, June 8,
6. Execution is unjust or impossible; 2000).
7. When the judgment has already been executed by Note: When the writ of execution varies the terms of
the voluntary compliance thereof by the parties the dispositive portion, the defeated party can file:
(Cunanan v. Court of Appeals, G.R. No. L-25511,
September 28, 1968); 1. Motion to quash the writ of execution, if denied; and
8. When refusal to execute has become imperative in 2. File petition for certiorari under Rule 65 with prayer
the higher interest of justice; for TRO (Albano, p.470).
9. When the execution is sought against property
exempt from execution under Sec. 13 of Rule 39. SECTION 2. DISCRETIONARY EXECUTION
Discretionary Execution As A Matter

Ministerial duty of the court: Finality of judgment has
Execution Of Right
the effect of entitling the prevailing party to execution as
a matter of right. It is the mini sterial duty of the court
May issue before the
to do and it is compellable by mandamus. Such Period to appeal has
ministerial duty finds exception when subsequent lapse of period to
already lapsed and no
events would render execution of judgment appeal, and even during
appeal is perfected.
unjust (Mangahas v. Paredes, G.R. No. 157866, appeal.
February 14, 2007).
Discretionary upon the
Ministerial duty of the
Take note that for the supervening event to apply, the court; there is inquiry on
court provided there are
supervening event must happen after the judgment has whet her there is good
no supervening events.
become final and executory. reason for execution.
Instances where execution is a matter of right:
1. Section 1, paragraph 1 – no appeal; judgment

becomes final; Execution is a matter Discretionary
2. Section 1, paragraph 2 – there is an appeal; once the of right after expiration execution upon good
CA judgment becomes final; of period to appeal and reasons stated in a
3. Section 4 – Judgment in an action for injunction,
no appeal is perfected. special order after due
receivers hip, accounting, support, judgment declared
to be immediately executory; and
hearing.
4. Rule 70 – Judgments in Forcible E ntry and Unlawful
Detainer cases.
Sheriff enforces writ of
Quashal of writ of execution when proper: (C- execution.
WWIDSS)
1. A change in the situation of the parties renders
execution inequitable; Losing party is made to indemnify
2. Issued against the wrong party; thru:
3. Issued without authority;
4. Improvidently issued; 1. Payment with interest;
5. Defective in substance; 2. Levy and sale of personal
6. Judgment already satisfied; and property;
7. The controversy was never submitted to the court. 3. Levy and sale of real property;
4. Delivery of personal and real
General Rule: The dispositive portion of the decision is
that part that becomes the subject of execution.
property.
Exceptions:

Note: Unlike judgments that are final and executory, a Communications of the Phils., Inc. v. Lantin, G.R. No.
judgment subject to discretionary execution cannot be L-59311, January 31, 1985).
insisted upon but simply prayed and hoped for because
a discretionary execution is not a matter of right. SECTION 3. STAY OF DIS CRETIONARY
EXECUTION
Execution Pending Appeal
The party against whom an ex ecution is directed may
By the appellate court: It can order the execution of file a supersedeas bond to stay discretionary execution.
judgment pending appeal for good reasons to be stated
in a special order after due hearing (Bangk ok Bank Supersedeas Bond
Public Company Ltd. v. Lee, G.R. 159806, Jan. 29, One filed by the party against whom the execution was
2006). issued and approved by the court conditioned upon the
By the trial court: May also do so in the exercise of its performance of the judgment or order allowed to be
residual jurisdiction under Rule 41 and 42. executed in case it shall be finally sustained in whole or
in part.
Grounds:
Supersedeas bond guarantees satisfaction of the
1. Insolvency of the judgment debtor; and judgment in case of affirmance on appeal. It does not
2. Wastage of asset by judgment debtor. answer for damage to property pending the appeal.
Requisites for discretionary execution: General Rule: An order of execution is not appealable
otherwise there would be no end to the litigation
1. There must be a motion filed by the prevailing party between the parties.
with notice to the adverse party;
2. There must be a hearing of the motion for Exceptions:
discretionary execution;
3. There must be good reasons to justify the 1. When the terms of the judgment are not very clear;
discretionary execution; and and
4. The good reasons must be stated in a special 2. When the order of ex ecution varies with the t enor of
order after due hearing (Sec. 2, Rule 39). the judgment.
SECTION 4. JUDGMENTS NOT S TAYED BY

“The requirement of good reason is important and APPEAL
must not be overlooked, because if the judgment is
executed and, on appeal, the same is reversed, General Rule: Judgment is stayed by appeal
although there are provisions for restitution, oftentimes Exceptions: Instances when judgment is immediat ely
damages may arise which cannot be fully compensated. executory (IRASO):
Accordingly, execution should be granted only when
these considerations are clearly outweighed by superior 1. Injunction;
circumstances demanding urgency, and the above 2. Receivership;
provision requires a statement of those circumstances 3. Accounting;
as a security for their existence” (City of Bacolod v. 4. Support; and
Enriquez, G.R. No. L-9775, May 29, 1957). 5. Such other judgments declared to be immediately
executory unless otherwise ordered by the trial court.
Examples of good reasons: e.g. A judgment in f orcible entry or unlawf ul detainer
when favorable to the plaintiff (Sec. 19 Rule 70).
1. When there is danger of the judgment becoming
ineffectual (Scottish Union v. Macadaeg, G.R. Nos.
L-5717, August 30, 1952); The reason for t he non-stay of judgment for support is
2. Old age; because s upport is immediately needed and its delay
3. Where the appeal is for the purpose of delay; may unduly prejudice the one in need of it.
4. When the successful party files a bond (but is not by
itself alone, a good reason); The rule on immediate execution of judgment in an
injunction case does not apply to a judgment in an
An award for actual and compensatory damages may action for prohibition (Embroidery & Apparel Control
be ordered executed pending appeal, but not an award Board v. Cloribel, G.R. No. L-20024, June 30, 1967).
for moral or exemplary damages.
General Rule: Once a judgment attains finality it
Ratio: Moral and exemplary damages are dependent thereby becomes immutable and unalterable. It may
on the outcome of the appeal. While the amounts of no longer be modified in any respect, even if the
actual damages are fixed and certain (Radio modification is meant to correct what is perceived to be
an erroneous conclusion of fact or law, and regardless

of whether the modification is attempted to be made by (Tan Ching Ji v. Mapalo, G.R. No. 21933, February 22,
the court rendering it or by the highest court of the land 1971).
(Abalos v. Philex Mining Corp. G.R. No. 140374
November 27, 2002). A revived judgment is a new judgment thus anot her five
or ten (5/10)-year period to execute and revive is given
Exception: The court may modify or alter a judgment the party. That second revived judgment can again be
even after the same has become exec utory whenever enforced under Sec. 6.
circumstances transpire rendering its execution unjust
and inequitable, as where certain facts and Sec.6 does not apply in:
circumstances justifying or requiring such modification 1. Judgments for support;
or alteration transpired after the judgment has become 2. Cont empt orders in unauthorized reentry on the land
final and executor (David v. Court of Appeals, G.R. No. by an ejected defendant;
115821 October 13, 1999). (Other Exceptions 3. Issuance of Writs of Possession; and
Discussed in Rule 36). 4. Special Proceedings (i.e. land registration cases).
Ratio: The fact that the decision has become final does
not preclude a modification or an alteration thereof Revival of Judgment Revival of Judgment
because even with the finality of judgment, when its
execution becomes impossible or unjust, it may be In Sec. 6 In Sec. 34
modified or altered t o harmonize the same with justice It is carried out through
and the facts. It is an independent
the filing of a motion in
action.
SECTION 5. EFFECT OF REV ERSAL OF EX ECUTED court.
JUDGMENT Assumes that a
Assumes that there is no
If reversed totally or partially, or annulled (Rule 47), on judgment is executed
execution within the first
appeal or ot herwise, the trial court may, on motion, within the first five (5)
five (5) years.
issue orders of restitution or reparation of damages as years.
equity and justice may warrant under the circumstances.
The party who files the The party who files such
SECTION 6. EX ECUTION BY MOTI ON OR action is the judgment motion is not the original
INDEPENDENT ACTION creditor himself, or his judgment creditor but he
assignee, or successor- is the highest bidder in
Modes of enforcement in-interests. the public auction sale.
1. By motion within 5 years from date of its entry; Filed because the
2. By independent action for revival of judgment after Filed due to lapse of the
movant is deprived of
five (5) years from ent ry and before it is barred by five (5) year period.
the property purchased.
statute of limitations which is ten (10) years from
entry under Art. 1144 (3) of Civil Code. This action is
a personal one and not quasi in rem.
SECTION 7. EX ECUTION IN CASE OF DEATH OF
A dormant judgment is one that was not executed PARTY
within five (5) years. The enforcement of a dormant
A. In case of death of the judgment obligee:
judgment is in the nature of an ordinary civil action with
Execution will issue in any case upon the application
the object of (1) reviving the dormant judgment and (2)
of his executor or administrator, or successor in
executing the judgment reviving it. interest.
Note: The independent action to revive judgment will B. In case of death of judgment obligor
1. Before levy:
not necessarily be filed with the same court that
Execution will issue if the action is for the recovery
decided the case. It shall be filed in the RTC as one
of real or personal property or any lien thereon.
incapable of pecuniary estimation. It must also satisfy
requirements of venue in Rule 4. Execution will not i ssue if the action is for the
recovery of a sum of money. In this situation, the
Five (5)-year period may be extended if delay is
judgment obligee should file a claim against the
traceable to the fault of the judgment debtor.
estate of the judgment obligor under Rule 86.
The five (5)-year period is to be counted not from the
2. After levy
date the judgment became final in the sense that no
Execution will continue even in money judgment.
appeal could be taken therefrom but when it became
The property may be sold for the satisfaction of the
executory in the sens e that it could already be enforced judgment obligation, and the officer making the sale

shall account to the corresponding execut or or after issuing the corresponding receipt therefor (Section
administrator for any surplus in his hands. 7[b], Rule 57).
Ratio: After a valid levy, the property is already Garnishment

separated from the estate of the deceased and is
deemed in custodia legis. It is an act of appropriation by the court when the
property of debtor is in the hands of a third person.
SECTION 8. ISSUANCE, FORM AND CONTENTS OF
A WRIT OF EXECUTION A specie of attachment for reaching any property or
credits pertaining or payable to a judgment debtor.
Note: Appeal is the remedy for an order denying the
issuance of a writ of execution. The sheriff may levy on debts due the judgment obligor
and other credits, including bank deposits, financial
However, an order granting the issuance of a writ of interests, royalties, commissions and other personal
execution of a final judgment is not appealable under property not capable of manual delivery in the
Rule 41; the remedy is to file an appropriate special civil possession or control of third parties (Sec. 9[c]).
action under Rule 65. rd
The garnishee or t he 3 person who is in possession of
SECTION 9. EX ECUTION OF JUDGMENTS FOR the property of the judgment debtor is deemed a forced
MONEY, HOW ENFORCED intervenor.
If award is for payment of money: Procedure for garnishment
1. Immediate payment on demand; 1. The sheriff will serve a notice upon the person owing
2. Satisfaction by levy; such debts (garnishee);
3. Garnishment of debts and credits. 2. The garnishee shall make a written report to the c ourt
within 5 days stating whether or not the judgment
The judgment obligor shall pay in cash, or certified bank obligor has sufficient funds;
check payable to the judgment obligee or any other 3. The garnished amount shall be delivered directly to
form of payment acceptable to the obligee (Sec 9[a]). the judgment oblige within 10 days from service of
notice.
Levy
It is an act by which an officer sets apart or Attachment Garnishment

appropriates a part or the whole property of the
judgment debtor for purposes of the execution sale. It refers to money, stocks,
credits and other
Levy is a pre-requisite to the auction sale. In order that It refers to corporeal incorporeal property
an execution sale may be valid, there must be a property in the which belong to the
previous valid levy. A sale not preceded by a valid levy possession of the judgment debtor but is in
is void and the purchas er acquires no title (Valenzuela judgment debtor. the possession or under
v. De Aguilar, G.R. No. L-18083-84, May 31, 1963). the control of a third
person.
The sheriff can validly levy any property of the judgment
obligor which may be disposed of for value but not
exempt from execution. The judgment obligor has the
option to choose which property to levy upon. SECTION 10. EX ECUTION OF JUDGMENTS FOR
SPECIFIC ACT
If he does not exercise the option, the officer shall first
levy on the personal properties, if any, and then on the 1. Convey ance, delivery of deeds, or ot her s pecific acts,
real properties if the personal properties are insufficient vesting title;
to answer for the judgment (Sec 9[b]). When the party refuse s to compl y: The court can
appoint some other person at the expense of the
Real or personal property or any interest in either may disobedient party and the act done shall have the
be levied upon in like manner and with like effect as same effect as if the required party performed it. The
under a writ of attachment. court, by an order, may also divest title of any party in
real or personal property situated in the Philippines
Real Property: by filing with the Register of Deeds a
and vest it in others, which shall have t he same effect
copy of the order together with the description of the of a conveyance executed in due form of law.
property and a notice that it is attached (Section 7[a],
Rule 57). 2. Sale of real or personal property;
3. Delivery or restitution of real property (e.g. In
Personal Property: If capable of manual delivery, by ejectment cases): The officer shall demand from the
taking and safely keeping it in the custody of the sheriff

judgment obligor to vacat e peaceably wit hin 3

working days, and restore possession of the property
to the judgment obligee. When a judgment requires the performance of any act
other than judgment for money and judgments for
If the party refuse s to vacate the property: The specific act, a certifi ed copy of the judgment shall be
remedy is not contempt because the writ of attached to the writ.
execution did not direct the judgment debtor to do
The writ of execution shall be served upon the party
anything; instead it was directed to the sheriff. The
required to obey the same and such party may be
Sheriff must oust the party and if after dispossession,
punished for contempt if he disobeys.
the judgment debtor should execute acts of
ownership or possession, then and only then may he Note: A special judgment may be enforced by contempt
be punished for contempt (Pascua v. Heirs of if the defendant refuses to comply with the judgment
Segundo Simeon, G.R. No. L-47717, May 2, 1988). because the writ is already directed to the judgment
obligor.
A writ of execution directing the sheriff to cause the
defendant to vacate is in the nature of a habere SECTION 12. EFFECT OF LEV Y ON EX ECUTION AS
facias possessionem and authorizes the sheriff to TO THIRD PERSONS
break open the premises where there is no occupant
therein (Arcadio v. Ylagan, A.C. No. 2734, July 30, The levy on execution creates a lien in favor of the
1986). judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
Note: Habere Facias Possessionem – the name of subject to liens and encumbrances then existing.
the process commonly resorted to by the successful
party in an action of ejectment, for the purpose of SECTION 13. P ROP ERTY EX EMPT FROM
being placed by the sheriff in the actual possession of EXECUTION
the land recovered.
Except as otherwise expressly provided by law, the
4. Removal of improvements on property subject of following property, and no other, shall be exempt from
execution; execution (FO3-CFP-L1S-LMR-E):
There must be a special order (Writ of Demolition)
issued (1) upon motion of the judgment oblige; (2) 1. The judgment obligor’s family home as provided by
law, or the homestead in which he resides, and land
after due hearing and (3) after the judgment obligor
necessarily used in connection therewith;
has failed to remove the improvements within a
2. Ordinary tools and implements personally used by
reasonable time fixed by the court. him in his trade, employment, or livelihood;
5. Delivery of personal property. 3. Three (3) 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
General Rule: The judgment debtor cannot be cited in occupation;
contempt of court. Generally, contempt is not a remedy 4. His necessary clothing and articles for ordinary
to enforce a judgment. personal use, excluding jewelry;
5. Hous ehold furniture and utensils necessary for
Exceptions: housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
1. Refusal to perform a particular act or Special judgment obligor may select, of a value not
Judgments under Sec. 11 where he may be cited in exceeding PhP100,000 pesos;
contempt; and 6. Provisions for individual or family use sufficient for 4
2. In case of the provisional remedy of support months;
pendente lite under Rule 61, the judgment debtor 7. The professional libraries and equipment of judges,
may still be cited for contempt even if the decision is lawyers, physicians, pharmacists, dentists, engineers,
not a special judgment and requires the latter to pay surveyors, clergymen, teachers, and other
money. professionals, not exceeding PhP 300,000 pesos in
value;
8. One (1) fishing boat and accessories not exceeding
SECTION 11. EX ECUTION OF SPECIAL the total value of PhP100,000 pes os owned by a
JUDGMENTS fisherman and by the lawful use of which he earns his
livelihood;
Special Judgment
9. So much of the salaries, wages, or earnings of the
One which can only be complied wit h by the judgment judgment obligor for his personal services within the 4
obligor because of his personal qualifications or months preceding the levy as are necessary for the
circumstances. support of his family;
10. Lettered gravestones;

11. Monies, benefits, privileges, or annuities 4. Independent reivindicatory action.

accruing or in any manner growing out of any life
insurance; The remedies are cumulative and may be resorted to
12. The right to receive legal support, or money or by the third party claimant independently of or
property obtained as such support, or any pension or separately from the others.
gratuity from the Government; and
13. Properties specially exempted by law. If the winning party files a bond, it is only then that the
sheriff can take the property in his possession. If there
is no bond, the sale cannot proceed.
But no article or species of property mentioned in this
section shall be exempt from execution issued upon a Note: The officer shall not be liable for damages to
judgment recovered for its price or upon a judgment of any third-party claimant if such bond is filed for the
foreclosure of a mortgage hereon. taking or keeping of the property.
When to invoke exemption from execution: A claim However, the judgment obligee can claim damages
for exemption must be raised before sale on execution. against a third-party claimant who filed a frivolous or
plainly spurious claim, and such judgment obligee can
SECTION 14. RETURN OF THE WRIT OF institute proceedings therefor in the same or separate
EXECUTION action.
The lifetime of such writ corresponds to t he period Note: The timing of the filing of the third party claim is
within which the judgment may be enforced by motion,
important because the timing det ermines the remedies
that is, within 5 years from entry thereof. that a third party is allowed to file. A third party
SECTION 15. NOTI CE OF S ALE OF PROPERTY ON claimant under Section 16 of Rule 39 of the 1997 Rules
EXECUTION of Civil Procedure may vindicate his claim to the
property in a separate action, because intervention is
Notice requirement no longer allowed as judgment has already been
rendered. A third party claimant under Section 14 of
A. If perishable property: By posting written
Rule 57 of the same Rules, on the other hand, may
notice of the time and place of the sale in three (3)
vindic ate his claim to the property by intervention
public places, preferably in conspicuous areas of the
municipal or city hall, post office and public market because he has a legal interest in the matter in litigation
where the sale is to take place, for such time as may (Fort B onifacio Development Corp. v. Yllas Lending
be reasonable, considering the character and Corp. G.R. No. 158997 October 6, 2008).
condition of the property;
B. Other personal property: By posting similar
notice in three (3) public places above-mentioned for Third party claim Third party complaint
not less than five (5) days;
C. If real property: By posting for 20 days in three Pleading filed by a
(3) public places particularly describing the property defendant against the
and stating where the property is to be sold, and if the Affidavit made by a third
third person not a party
assessed value of the property exceeds P50, 000, by person who claims to be
to the action for
publishing a copy of the notice once a week for two (2) entitled to t he property in
contribution, indemnity,
consecutive weeks in one (1) news paper selected by the custody of a sheriff
subrogation, or any
raffle (whether in English, Filipino, or any major
regional language published, edited and circulated or, other relief
in the absenc e thereof, having general circulation in
Filed by third-party Filed by third-party
the province or city).
claimant plaintiff
Note: In all cases, a written notice of the sale shall
be given to the judgment obligor, at least three (3) days
before the sale, except as provided in par (a) hereof
where notice shall be given at any time before the sale. SECTION 17. PENALTY FOR S ELLING WITHOUT
NOTICE, OR REMOVING OR DEFACING NOTICE
SECTION 16. P ROCEEDI NGS WHERE PROPERTY
CLAIMED BY THIRD PERSON The following are liable for actual and punitive
damages:
Remedies of a third-party claimant
1. An officer selling without the notice prescribed by Sec.
1. Summary hearing before the court which authorized 15; and
the execution; 2. A person willfully removing or defacing the notice
2. Terceria or third-party claim filed with the sheriff; posted, if done before the sale, or before the
3. Action for damages on the bond posted by judgment satisfaction of judgment if satisfied before the sale.
creditors; or

Punitive damages: in the amount of PhP5,000 pesos. The officer may thereafter reject any subsequent bid of
such purchaser who refuses to pay.
Actual and punitive damages may be recovered by
MOTION in the same action. SECTION 21. JUDGMENT OBLIGEE AS
PURCHASER
SECTION 18. NO SALE IF JUDGMENT AND COSTS
PAID When the purchaser is the judgment obligee, and no
third party claim has been filed, he need not pay the
At any time before the sale of property on execution, amount of the bid if it does NOT exceed the amount of
the judgment obligor may prevent the sale by paying his judgment. If it does, he shall pay only the excess.
the amount required by the execution and the costs that
have been incurred therein. SECTION 22. ADJOURNMENT OF SALE
SECTION 19. HOW PROP ERTY S OLD ON 1. If with written consent of the judgment obligor and
EX ECUTION; WHO MAY DI RECT MANNER AND obligee, or their duly authorized representatives: To
ORDER OF SALE any date and time agreed upon.
2. If without such agreement: From day to day if it
All sales of property under execution must be made: becomes necessary to do so for lack of time.
1. At public auction;
2. To the highest bidder; SECTION 23. CONV EYANCE TO PURCHAS ER OF
3. To start at the exact time fixed in the notice. PERS ONAL PROP ERTY CAPABLE OF MANUAL
3. After sufficient property has been sold to satisfy the DELIVERY
execution, no more shall be sold and any excess
shall be promptly delivered to the judgment obligor or When purchaser pays the purc hase price, the personal
his authorized represent ative, unless otherwise property, capable of manual delivery, must be delivered
directed by the judgment or order of the court. to him and if desired execute and deliver to him a
certificate of sale.
Sale in Judicial SECTION 24. CONV EYANCE TO PURCHAS ER OF
Ordinary Sale on
Foreclosure of PERS ONAL P ROP ERTY NOT CAPABLE OF
Execution
Mortgage MANUAL DELIVERY
Must be confirmed by In this case the officer must execute and deliver to the
the court in order t o purchaser a certificate of sale.
Need not be confirmed divest the rights in the
by the court property of the parties SECTION 25. CONVEYANCE OF REAL P ROP ERTY;
and to vest the rights in CERTIFI CATE THEREOF GIV EN TO PURCHAS ER
the purchaser AND FILED WITH REGISTRY OF DEEDS
There is no right of The officer must give to the purchaser a Certificate of

Right of redemption redemption, except by Sale.
exists when property is the mortgagor where the
Contents of the certificate of sale:
real mortgagee is a bank or a
banking institution 1. A particular description of the real property sold;
2. The price paid for each distinct lot or parcel;
Title acquired aft er the 3. The whole price paid by him; and
Title acquired upon entry
expiration of the 4. A statement that the right of redemption expires one
of the confirmation and
redemption period when (1) year from the date of the registration of the
registration of the
final deed of convey ance certificate of sale.
foreclosure sale
is executed Note: Confirmation of the sale is not needed unlike in
judicial foreclosure of mortgage. The certificate of sale
is merely provisional (Raymundo v. Sunico, G.R. No.
8241, September 27, 1913).
SECTION 20. REFUSAL OF PURCHASER TO PAY
May the validity of an auction sale be attacked?
The officer may again sell the property to the highest
bidder and shall not be responsible for any loss General Rule: No, because of the presumption of
occasioned thereby. regular performance of duty by the sheriff.
But the court may order the refusing purchaser to pay Exceptions:
to the court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the order.

1. When from the nature of the irregularity or from B. By the first redemptioner: Within one (1)
intrinsic facts, injury resulted (Somera Vda. De year from the date of registration of the certificate of
Navarro v. Navarro, 76 Phil. 122); sale; or
2. When the price obt ained is shockingly inadequate C. By all subsequent redemptioners: Within
and it is shown that a better price can be obtained at sixty (60) days from the last redemption, provided
a resale (Barrozo v. Macaraeg, G. R. No. L-1282, April that the judgment debtor has not exercised his right
25, 1949). of redemption.
Exception to the Exception: The rule that you can But, in all cases the judgment obligor shall have the
question the validity of the auction sale if the price entire period of one (1) year from the date of the
obtained is shockingly inadequate does not apply when registration of the sale to redeem the property. If the
the property sold is real property. judgment obligor redeems, no further redemption is
allowed and he is restored to his estate.
SECTION 26. CERTIFICATE OF SALE WHERE
PROPERTY CLAIMED BY THIRD PERSON The period of redemption is NOT suspended by an
action to annul the foreclosure sale.
The certificate of sale to be issued shall make express
mention of the existence of such third-party claim. Note: The periods for redemption are not extendible
or interrupted. The parties may, however, agree on a
SECTIONS 27 .WHO MAY REDEEM REAL longer period, in such case, it would be a conventional
PROPERTY SO SOLD. redemption (Lazo v. Republic Surety & Insurance Co.,
SECTION 28. TIME AND MANNER OF, AND Inc., G.R. No. 27365, Jan. 30, 1970).
AMOUNTS PAYABLE ON, SUCCESSIVE Redemption price (Sec.28)
REDEMPTIONS;NOTI CE TO BE GIVEN AND FILED.
A. By the judgment obligor or first
Redemption: This right of redemption is transferable redemptioner:
and may be voluntarily sold, but it cannot be levied 1. Purchase price;
upon by the judgment creditor so as to deprive the 2. 1% interest thereon, up to the time of redemption;
judgment debtor of any further rights to the property. 3. Any amount of assessments or taxes which the
purchaser may have paid thereon after purc hase
Right of redemption: and interest on such last named amount at the
same rate; and
1. Personal Property – none; Sale is absolute.
4. IF the purchaser be also a creditor having a prior
2. Real Property – There is a right of redemption.
lien to that of the redemptioner, other t han t he
judgment under which such purchase was made,
Who may redeem (Sec. 27): the amount of such other lien, with interest.
B. By subsequent redemptioners:
1. Judgment obligor, or his successor in interest, in the 1. Amount paid on the last redemption;
whole or any part of the property; or 2. 2% interest thereon;
Succe ssor in interest – includes a pers on to whom 3. Any amount of assessments or taxes which the last
he has transferred his right of redemption, or one to redemptioner may have paid thereon aft er
whom he has conveyed his interests in the property redemption by him with interest on such last-named
for purposes of redemption, or one who succeeds to amount; and
his property by operation of law, or a person with a 4. Amount of any liens held by said last redemptioner
joint interest in the property, or his spouse or heirs prior to his own, with interest.
The redemption price for subsequent redemption shall
(Magno v. Viola, et al., G.R. No. 37521, December 22,
be the same (redemption price becomes higher and
1934).
higher).
2. Redemptioner who is a creditor having a lien by virtue
May redemption be paid in any form other than
of an attachment, judgment or mortgage on the
property sold, subsequent to the lien under which cash? Yes. The rule is construed liberally in allowing
the property was sold. redemption (to aid rather than defeat the right) and it
Note: If his lien is prior to the judgment, he is not a has been allowed in the case of a cashier’s check,
redemptioner because his interests in his lien are fully certified bank checks and even checks.
protected (relate to Section 12).
The offer to redeem must be accompanied with a bona
When can redemption be made (Sec.28): fide tender or delivery of the redemption price.
A. By the judgment obligor: Within one (1) year However, a formal offer to redeem with a tender is not
from the date of registration of the certificate of necessary where the right to redeem is exercised
sale. through the filing of a complaint to redeem in the courts,
within the period to redeem.

Note: The periods for redemption in Sec. 28 are not SECTION 33. DEED AND POSSESSION TO BE
extendible or interrupted. The parties may, however, GIVEN AT EXPIRATION OF REDEMPTION PERIOD;
agree on a longer period of redemption but in such BY WHOM EXECUTED OR GIVEN
case, it would be a matter of conventional redemption
(Lazo v. Republic Suret y & Insurance Co., Inc., G.R. No. The purcha ser is entitled to a conveyance and
27365, January 30, 1970). possession of the property if there is no redemption
made within 1 year from date of the registration of the
SECTION 29. EFFECT OF REDEMPTION BY certificate of sale, or la st redemptioner whenever 60
JUDGMENT OBLIGOR, AND A CERTIFICATE TO BE days have elapsed and no other redemption has been
DELIVERED AND RECORDED THEREUPON; TO made.
WHOM PAYMENTS ON REDEMPTION MADE
He is substituted to and acquires all the rights, title,
The person to whom the redemption payment is made interest and claim of the judgment obligor to the
must execute and deliver to him a Certificate of property at the time of levy. The purchaser’s rights
Redemption acknowledged before a notary public or retroact to the date of levy.
other officer authorized to take acknowledgments of
conveyances of real property. Two (2) documents which the sheriff executes in
case of real property:
The payments mentioned in this and the last preceding
sections may be made to the: (1) purchaser, or (2) 1. Certificate of S ale. A fter the auction sale, he will
execute in favor of the purc haser t he certificate of
redemptioner, or (3) for him to the officer who made the
sale under Section 25. From the registration of the
sale.
said certificate, the one year period starts.
SECTION 30. PROOF REQUIRED OF 2. Deed of Conveyance. If after one (1) year there is no
REDEMPTIONER redemption, a deed of conveyance is executed
(Section 33).
Redemptioner must produce to the officer, or person
from whom he seeks to redeem, and serve with his The deed of conveyance is what operates to transfer
notice to the officer: to the purchaser whatever rights the judgment debtor
had in the property. The certificate of sale after
1. A copy of the judgment or final order under which he execution sale merely is a memorial of the fact of sale
claims the right to redeem certified by the clerk of and does not operate as a conveyance.
court wherein the judgment or final order is entered;
or The purchas er acquires no better right than what the
2. If he redeems upon a mortgage or other lien, a judgment debtor had in the property levied upon.
memorandum of the record thereof, certified by the Thus, if t he judgment debt or had already transferred
Register of Deeds; or the property executed prior to the levy and no longer
3. An original or certified copy of any assignment has an interest in the property, the execution
necessary to establish his claim; or purchaser acquires no right (Pachec o v. Court of
4. An affidavit executed by him or his agent showing the
Appeals, G.R. No. L-48689, August 31, 1987).
amount then actually due on the lien.
Note: When the original owner wants to redeem, there When a third person i s in posse ssion: The
is no need for him to prove his right as a judgment procedure is for the court to order a hearing and
debtor. determine the nature of such adverse possession.
SECTION 31. MANNER OF USING PREMISES SECTION 34. RECOV ERY OF P RICE IF SALE IS NOT
PENDING REDEMPTION; WASTE RESTRAINED EFFECTIVE; REVIVAL OF JUDGMENT
SECTION 32. RENTS, EARNINGS AND INCOME OF The purchaser may recover the purchase price
PROPERTY PENDING REDEMPTION when:
Rights of the judgment debtor: (UNCURE) 1. The purchaser or his successor-in-interest fail s to
recover possession of the property; or
1. Use the property in the same manner it was
2. Is evicted due to:
previously used;
a. Irregularities in the proceedings concerning the sale;
2. Make necessary repairs to buildings thereon while he
or
occupies the property;
b. Judgment has been reversed or set aside; or
3. Collect rents, earnings and income derived from the
c. The property sold was exempt from execution; or
property until the expiration of period of redemption;
d. A third person has vindicated his claim to the
4. Use it in the ordinary course of husbandry (Sec. 31);
property.
5. Remain in possession of the property; and
6. Cannot be ejected (Sec. 32).

When the sale was not effective under the Note: The person indebted to the judgment obligor may
circumstances in this section, the purchaser may: pay to the sheriff holding t he writ of execution the
amount of his debt or so muc h thereof as may be
1. File a motion in the same action or file a separate necessary to satisfy the judgment, and the sheriff’s
action to recover from the judgment creditor the price
receipt shall be a sufficient discharge for the amount so
paid;
paid or directed to be credited by the judgment oblige
2. File a motion for revival of judgment in his name
against the judgment debtor; or on the execution (Sec. 39).
3. Bring an action to recover possession of the property.
SECTION 44. ENTRY OF SATISFACTION OF
JUDGMENT BY CLERK OF COURT
SECTION 35. RI GHT TO CONTRI BUTI ON OR
SECTION 45. ENTRY OF SATISFACTION WITH OR
REIMBURSEMENT
WITHOUT ADMISSION
Cont ribution and reimbursement may be obtained in a
SECTION 46. WHEN PRI NCIP AL BOUND BY
separate action, unless cross-claims have been filed
JUDGMENT AGAINST SURETY
and adjudicated in the same action, in which case,
execution may issue to compel contribution or When a judgment is rendered against the surety, the
reimbursement (Feria, Civil Proc edure Annotated, Vol. principal debtor is also bound by the judgment from the
2, 2001 Ed., p. 108). time that he has notice of the action or proceeding, and
an opportunity at the surety’s request to join in the
Remedies of the judgment creditor in aid of
defense.
execution or if judgment is not fully satisfied
SECTION 47. EFFECT OF JUDGMENT OR FINAL
1. If t he execution is returned unsatisfied, he may cause
ORDERS
examination of the judgment debtor as to his property
and income (Sec. 36); This refers to judgments which are considered as
Note: The order of examination of the judgment conclusive and may be rebutted directly by means of
obligor shall be issued only by the court which relief from judgment or annulment of judgment or
rendered the judgment. indirectly by offering them in evidence under the parole
2. He may cause examination of the debtor of the evidence rule.
judgment debtor as to any debt owed by him or to Two parts
any property of the judgment debtor in his possession
(Sec. 37); 1. Res Judicata – also known as bar by former
3. If after examination, the court finds property of the judgment or direct estoppel by judgment. It covers
judgment debtor, either in his own hands or that of paragraphs (a) and (b) of Section 47.
any pers on, the court may order the property applied
to the satisfaction of the judgment (Sec. 37);
4. A party or other person may be compelled, by an In Rem In Personam
order or subpoena, to attend before the court or
commissioner to testify as provided in Sec 36 & 37 (Paragraph A) (Paragraph B)
(Sec. 38);
5. If the court finds the earnings of the judgment obligor The decision is The judgment or final
for his personal services are more than sufficient for conclusive upon title of order is conclusive
his family’s needs, it may order payment in fixed the thing, the will or between parties and
monthly installments (Sec. 40); administration or the their successors in
6. The court may appoint a receiver for the property of condition, status or interest, litigating for the
the judgment debtor not exempt from execution or relationship of the same thing and under
forbid a trans fer or disposition or interference with person. the same title and in the
such property (Sec. 41); same capacity.
7. If the court finds that the judgment debtor has an
ascertainable interest in real property either as e.g. land registration e.g. accion
mortgagor, mortgagee, or ot herwise, and his interest cases; naturalization reinvindicatoria
can be ascertained without controversy, the court
may order the sale of such interest (Sec. 42);
8. If the person alleged t o have the property of the
judgment debtor or the pers on indebted to him, 2. Conclusi veness of judgment – also known as
claims an adverse interest in the property, or denies estoppel by verdict, or estoppel by record, or
the debt, the court may authorize the judgment- collateral estoppel by judgment or preclusion of
creditor t o institute an action to rec over the property, issues or rule of auter action pendant. It covers
forbid its transfer and may punish disobedience for paragraph (c).
contempt (Sec. 43);

Auter action pendant – A plea that another action is Conclusiveness of judgment: The issues actually and
pending for the same cause. directly resolved in a former suit cannot again be raised
in any future case between the same parties involving a
Res Judicata (A Matter Adjudged): It is a rule that a different cause of action.
final judgment rendered by a court of competent
jurisdiction on the merits is conclusive as to the rights of It has the effect of preclusion only of issues.
the parties and their privies, and, as to them,
constitutes an absolute bar to a subsequent action The parties in both actions may be the same but the
involving the same claim, demand or causes of action causes of action are different.
(Black ’s Law Dictionary).
Bar by Former Conclusiveness of
Requisites: Judgment Judgment
1. A final judgment or order – The judgment must be There is identity of There is only identity of
final and exec utory which is beyond the power of the parties, subject matter parties and subject
court to alter. and causes of action. matter.
2. Jurisdiction over the subject matter and t he parties by
the court rendering it – If the court did not acquire The first judgment The first judgment is
jurisdiction over the subject matter and the parties, constitutes as an conclusi ve onl y as to
the judgment is void and cannot be invoked as res
absolute bar to all matters directly
judicata.
matters directly adjudged and actually
3. Judgment upon the merits;
General Rule: A dismissal without a t rial is not an adjudged and those that litigated in the first
adjudication upon the merits. might have been action. The second
adjudged. action can be
Exception: Under Sec. 3, Rule 17, where there is no prosecuted.
trial but the dismissal shall have the effect of an
adjudication upon the merits. It has the effect of It has the effect of
preclusion of claims. preclusion only of
4. Between the two cases: issues.
a. There is identity of parti es – Identity of parties
exists when (1) the parties in both cases are the
same, or (2) the actions are bet ween those in
privity with them, as between their successors in Rule of Stare Decisis
interest by title subsequent to the commencement
of the action, litigating for the same thing and under This rule holds that when the Supreme Court has laid
the same title and in the same capacity, or (3) down a principle of law applicable to a certain state of
where there is substantial identity even if there are facts, it will adhere to that principle and apply to it to all
additional parties. future cases where the facts are substantially the same
There is also identity of parties even if t he (Hacienda Bino v. Cuenca, G. R. No. 150478, April 15,
defendant in the first case becomes the plaintiff, 2005).
and vice-versa (HSB C v. Aldecoa & Co., G.R. No.
8437, March 23, 1915). Doctrine of Law of the Case
b. Identity of subject matter; According to this principle, whatever is once irrevocably

c. Identity of cause of action – There is identity of established as the controlling legal rule or decision
causes of action when the t wo actions are based between the same parties in the case continues to be
on the same delict or wrong committed by the the law of the case whether correct on general
defendant even if the remedies are different. principles or not, so long as the facts on which such
Note: No res judicata in: decision was predicated continue to be the facts of the
case before the court. This principle generally finds
1. Revival of judgment
application in cases where an appellate court passes
Cause of action is for revival of dormant judgment.
on a question and remands the case to the lower court
2. Annulment of judgment. for further proceedings. The question there settled
Caus e of action is extrinsic fraud or lack of jurisdiction; becomes the law of the case upon subsequent appeal
Subject matter is the judgment itself. (RCPI v. Court of Appeals, G.R. No. 139763, April 26,
2006).
Under the doctrine of res judicat a, no matter how
erroneous a judgment may be, once it becomes final, it Note: This rule does not apply to resolutions rendered
cannot be corrected. in connection with the case wherein no rationale has
been expounded on the merits of that action (Jarantilla
v. Court of Appeals, G.R. No. 80194, Mar. 21, 1989).

Immutability of judgments: Once a judgment attains Issues raised on appeal

finality it thereby becomes immutable and unalterable.
The decisions of the court must be immutable at some The rules on the issues to be raised on appeal may be
definite period of time, no matter how erroneous a summarized as follows:
judgment may be. Otherwise, there would be no end to 1. In all cases decided by the RTC in the exercise of its
litigation. (See Rule 36 for Exceptions) original jurisdiction, appeal may be made to the Court
of A ppeals by mere notice of appeal where the
SECTION 48. EFFECT OF FOREIGN JUDGMENT OR
appellant raises questions of fact or mixed questions
FINAL ORDERS of fact and law;
Public policy principle: A judgment by a court is 2. In all cases decided by the RTC in the exercise of its
original jurisdiction where the appellant raises only
enforceable only within its territorial jurisdiction.
questions of law, the appeal must be taken to the
Effect of foreign judgments: Provided that the foreign Supreme Court on a petition for review on certiorari
tribunal had jurisdiction: under Rule 45.
3. All appeals from judgments rendered by the RTC in
1. In case of judgment against a specific thing, the the exercise of its appellate jurisdiction, regardless of
judgment is conclusive upon the title to the thing; or whet her the appellant raises questions of fact,
2. In case of a judgment against a person, the judgment questions of law, or mixed questions of fact and law,
is presumptive evidence of a right as between the shall be brought to the Court of Appeals by filing a
parties and their successors-in-interest by a petition for review under Rule 42 (Macawiwili Gold
subsequent title. Mining and Development Co., Inc. v. CA, G.R. No.
Note: The judgment of foreign tribunal cannot be 115104, October 12, 1998).
enforced by execution in the Philippines. Such When appeal is a matter of right
judgment only creat es a right of action and its non-
1. First appeal is a matter of right
satisfaction, a cause of action, and it is necessary that a
Exception: In civil cases, first appeal is not a matter
suit be brought upon said foreign judgment in our local
right if filed with the Supreme Court.
courts.
2. In criminal cases, when the RTC imposes death
Where to file penalty, the Court of Appeals shall automatically
The suit upon the foreign judgment is considered as review the judgment (Section 3[d] Rule 122). If the
Court of Appeals finds that deat h penalty should be
one incapable of pecuniary estimation and therefore it
imposed, the CA shall not render judgment but
must be filed in the RTC.
certify and elevate the case to the Supreme Court
There are two ways of giving effect to a foreign for review (Section 13[a] Rule 124).
judgment: (a) an ordinary action to enforce the foreign
Note: Only final judgments or orders can be appealed
judgment may be filed in court or (b) it may be pleaded
as distinguished from interlocutory judgments or orders
in an ans wer or a motion t o dismiss (Herrera, Remedial
which are not appealable.
Law, Vol. II, 2007 Ed., p. 531).
The right to appeal is neither a part of due process but
Note: In both instances, the judgment may be
a mere statutory privilege that has to be exercised only
repelled by evidence of (JN CFC)
in the manner and in accordanc e with the provisions of
a. Want of jurisdiction; law (Stolt-Neilsen v. NLRC, G. R. No. 147623,
b. Want of notice; December 13, 2005).
c. Collusion;
d. Fraud; or The right to appeal is not a constitutional or a natural
e. Clear mistake of law or fact. right (Canton v. City of Cebu, G.R. No. 152898,
February 12, 2007).
APPEAL RULE 40
APPEAL FROM M UNICIPAL T RIAL
Three modes of appeal: C OURT S T O T HE REGIONAL T RIAL
1. Ordinary Appeal (Rule 40 and 41) C OURT S
a. Notice of appeal
b. Record on appeal
2. Petition for Review (Rule 42) Ordinary Appeal
3. Appeal by Certiorari (Rule 45)
An appeal by notice of appeal from a judgment or final
order of a lower court on questions of fact and law.

Note: A question t hat was never raised in the c ourt Ratio and Basi s: Pursuant to its sole prerogative to
below cannot be allowed to be raised for the first time amend procedural rules, the SC deems it necessary to
on appeal, without offending the basic rules of fair play, change the afore-stated rule in order to standardize the
justice and due process (Villanueva v. Sps Salvador, appeal periods provided in the Rules of Court, to be
G.R. No. 139436, January 25, 2006). counted from receipt of the order denying the motion for
new trial or motion for reconsideration (whether full or
partial or any final order or resolution) and to afford
Ordinary Appeal Petition for Review litigants fair opportunity to appeal their cases.
Matter of right Discretionary The fresh period shall apply to:
1. Rule 40
All the records are No records are
2. Rule 41
elevated from the court elevated unless the
3. Rule 42
of origin. court decrees it. 4. Rule 43
Notice and rec ord on 5. Rule 45
appeal are filed wit h Filed with the CA.
the court of origin. Note: No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed. But if
The case was decided
the appeal requires the filing of a record on appeal, a
by the RTC pursuant
The case was decided motion for extension to submit rec ord on appeal is
to its original
by the RTC pursuant to allowed.
jurisdiction. The case
its appellate jurisdiction
was originally filed in SECTION 3. HOW TO APPEAL
the RTC.
A. By Notice of Appeal:
1. File a notice of appeal with the trial court;
2. The notice of appeal must indicate:
SECTION 1. WHERE TO APPEAL a. Parties;
b. Judgment or final order appealed from;
Appeal to the RTC
c. Material date showing timeliness of appeal.
Mode of Appeal: Notice of A ppeal within fift een (15) 3. A copy served on the adverse party; and
days from receipt of decision. 4. Payment in full of docket fees and other lawful fees.
After an appeal to the RTC has been perfected, the

B. By Record on Appeal: Required in cases
MTC los es its jurisdiction over the case and any motion
where multiple appeals are allowed:
for the execution of the judgment should be filed with
1. Special proceedings such as probate;
the RTC. 2. Actions for recovery of property with accounting;
Note: The Rules on Summary Procedure no longer 3. Actions for partition of property with accounting;
4. Special civil actions of eminent domain
applies when the case is on appeal.
(expropriation);
SECTION 2. WHEN TO APPEAL 5. Special civil actions for foreclos ure of mortgage.
(Roman Catholic Archbishop of Manila v. Court
1. Within 15 days after notice of judgment or final order; of Appeals, G.R. No. 111324, July 5, 1996).
2. Where a record on appeal is required, within 30 days
from notice of judgment or final order by filing a notice
of appeal and a record on appeal. Note: The rationale behind allowing more than
one appeal in the s ame case is to enable t he rest
Note: Sec. 2 of Rule 40 provides that the period of of the case to proc eed in the event that a
appeal shall be interrupt ed by a timely motion for new separate and distinct issue is resolved by the
trial or reconsideration. court and held to be final (Roman Catholic
Archbishop of Manila v. CA, supra).
But, under the “Fresh Period Rule”, a party litigant
may either file his notice of appeal within 15 days from Material Data Rule
receipt of the RTC’s decision or fil e it within 15 days
The notice of appeal must also be accompanied by a
from receipt of the order denying his motion for new trial
statement of the material dates showing the timeliness
or motion for reconsideration (Neypes v. Court of
of the appeal.
Appeals, G.R. No. 141524, September 14, 2005).

SECTION 4. PERFECTION OF APP EAL; EFFECT APPEAL FROM MTC TO RTC

THEREOF
Appeal decision of MTC by filing notice of
Governed by Section 9, Rule 41.
appeal and pay within 15 days from
Note: The notice of appeal does not require the receipt of judgment.
approval of the court. The function of the notice of
appeal is merely to notify the trial court that the
appellant was availing of the right to appeal, and not to 15 days from perfection of appeal,
seek the court’s permission that he be allowed to pose MTC clerk transmits record to RTC
an appeal (Crisologo v. Daray, A.M. No. RTJ-07-2036,
August 30, 2006).
Notice to parties that an appeal is being
taken from the decision of MTC
SECTION 5. APP ELLATE COURT DOCKET AND
OTHER LAWFUL FEES
Within the period for taking an appeal, the appellant

Within 15 days from notice:
shall pay to the clerk of court which rendered the a. Appellant submits memorandum to the RTC
judgment or final order appealed from the full amount of b. Appellee files his own memorandum 15 days
the appellate court docket and other lawful fees. from receipt of appellants’ memorandum
Payment of appellate court docket fees is jurisdictional.
Failure to do so is a ground for dismissal of appeal
(Sec.1[c] Rule 50). If uncontested, Any party may
judgment is appeal by filing
However, non-payment of docket fees does not entered in the a petition for
automatically res ult in dismissal of appeal, the dismissal
book of entries. review with the
being discretionary in the court if there are justifications
CA.
for non-payment (Fontanar v. Bonsubre, G. R. No.
56315, Nov. 25, 1986). SECTION 7. PROCEDURE IN THE REGIONAL TRIAL
COURT
SECTION 6. DUTY OF THE CLERK OF COURT
1. Upon receipt of the complete record or record on
Within 15 days from the perfection of the appeal, the appeal, the clerk of court of the RTC shall notify the
clerk of court or the branch clerk of court of the lower parties of such fact.
court shall transmit the original record or the record on 2. Within 15 days from such notice, it shall be the duty
appeal, together with the t ranscripts and exhibits, to the of the appellant to submit a memorandum which
appellate court/ RTC. shall briefly discuss the errors imputed t o the lower
court, a copy of which shall be furnished the adverse
party.
Note: The requirement for the submission of

appellant’s memorandum is a mandatory and
compulsory rule. Non-compliance therewith
authorizes the dismissal of the appeal.
3. Within 15 days from the receipt of the appellant’s

memorandum, the appellee may file his
memorandum. Upon the filing of the memorandum of
the appellee, or the expiration of the period to do so,
the case shall be considered submitted for decision.
Note: If the appellee does not file a memorandum,

the case shall be submitted for decision BUT it does
not follow that he will lose the case.

SECTION 8. APP EAL FROM ORDERS DISMISSING 2. A particular matter in a judgment declared by the
CASE WITHOUT TRIAL; LACK OF JURISDICTION Rules to be appealable.
A. If the lower court di smi ssed the ca se Non-appealable cases (DIDSES-D)

without trial on the merits, RTC may: 1. An order denying a petition for relief or any similar
1. Affirm, if ground of dismissal is lack of jurisdiction motion seeking relief from judgment;
over the subject matter. The RTC, if it has 2. An interlocutory order;
jurisdiction, shall TRY the case on the merits as if 3. An order disallowing or dismissing an appeal;
the case was originally filed therein; 4. An order denying a motion to set aside a judgment by
2. Reverse, in which case, it shall remand the case consent, confession or compromise on the ground of
for further proceedings. fraud, mistake or duress, or any other ground vitiating
B. If the case was tried on the merits by the consent;
lower court without juri sdiction over the subject 5. An order of execution;
matter: RTC shall not dismiss the case if it has 6. A judgment or final order for or against one or more
original jurisdiction, but shall decide the case, and of several parties or in separate claims,
shall admit amended pleadings or additional evidence. counterclaims, cross-claims and t hird party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
Note: Purpose is to avoid double payment of docket 7. An order dismissing an action without prejudice.
fees.
Remedy in case s where appeal is not allowed:
SECTION 9. APPLICABILITY OF RULE 41
Special civil action of certiorari or prohibition if there is
By virtue of this provision, the inferior courts also lack or excess of jurisdiction or grave abuse of
exercise residual jurisdiction in the same manner discretion or mandamus if t here is no performance of
provided under par. 5 Sec. 9 of Rule 41. duty (Rule 65).
Note: The order denying a motion for new trial or

RULE 41 reconsideration has been deleted from the list. Hence,
an aggrieved party may no longer assail an order
APPEAL FROM T HE REGIONAL denying a motion for new trial or a motion for
T RIAL C OURT S reconsideration by way of Rule 65. The proper remedy
is to appeal from the judgment
Interlocutory Order
Note: As amended by A.M. No. 07-7-12 SC, effective Refers to an order which does not dispose of the case
December 27, 2007. but leave something else to be done by the trial court
on the merits of the case.
Three modes of appeal from decisions of the RTC
1. Ordinary appeal or appeal by writ of error, where Note: The t erm ‘final’ has two (2) possible meanings in
judgment was rendered in a civil or criminal action by Civil Procedure:
the RTC in the exercise of its original jurisdiction.
This mode of appeal, governed by Rule 41, is taken 1. Final in the sense t hat it is already executory and that
to the Court of Appeals on questions of fact or mixed happens if there is no appeal. And that is for
questions of fact and law. purposes of applying rule 39 on execution.
2. Petition for review, where judgment was rendered by 2. Final in t he sense that it is not merely interlocutory
the RTC in the exercise of its appellate jurisdiction. because it completely disposes of the case or a
This mode of appeal, covered by Rule 42, is brought particular matter therein and there is nothing more for
to the Court of Appeals on questions of fact, of law, or the court to do after its rendition (Bairan v. Tan Sui
mixed questions of fact and law. Lay, G.R. No. L-19460, December 28, 1966).
3. Petition for review on certiorari or appeal by certiorari Test for determining whether a judgment or order is
to the Supreme Court. final or interlocutory: Does it leave something to be
This mode of appeal, provided for by Rule 45, is done in the trial court with respect to the merits of the
brought to the Supreme Court from the decision of case? If it does, it is interlocutory, hence, you cannot
the Regional Trial Court in the exercise of its original appeal yet; if it does not, it is final and therefore you can
jurisdiction and only on questions of law (Sec. 2, Rule
appeal (Reyes v. De Leon, G.R. No. L-3720, June 24,
41, Rules of Court; Five Star Mark eting Corporation v.
1952)
Booc, G.R. No. 143331, October 5, 2007).
A judgment based on compromise is not appealable
SECTION 1. SUBJECT OF APPEAL and is immediately executory. The remedies to set
aside a compromis e agreement are: (1) motion to set
Appealable cases: aside; (2) motion for reconsideration or new trial; (3)
1. Judgments or final orders that completely disposes of
the case;

petition for relief from judgment; or (4) petition for SECTION 4. APP ELLATE COURT DOCKET AND
annulment of judgment. OTHER LAWFUL FEES
This rule refers to appeals from RTC exercising SECTION 5. NOTICE OF APPEAL
original jurisdiction. An appeal on pure questions of Notice of appeal must specify the following matters:
law cannot be taken to the CA and s uch improper 1. The parties to the appeal;
appeal will be dismissed pursuant to Sec. 2, Rule 50 2. Judgment or final order or part thereof appealed from;
(Regalado, p. 526). 3. The court to which the appeal is being taken; and
4. The material dates showing the timeliness of the
SECTION 2. MODES OF APPEAL appeal.
Ordinary Petition for
Petition for SECTION 6. RECORD ON APPEAL; FORM AND
appeal review on
review CONTENTS THEREOF
(Appeal by writ certiorari
(Rule 42) 1. Full names of all the parties to the proc eedings stated
of error) (Rule 45)
in the caption of the record;
Case is decided Case is Case is
2. Include the judgment or final order from which the
by the RTC in decided by decided by the
appeal is taken;
its original the RTC in RTC, CA, CTA
3. In chronological order, copies of ONLY such
jurisdiction. the exercise and
pleadings, petitions, motions and all interlocutory
of its Sandiganbaya
orders as are related to the appealed judgment for
appellate n
the proper understanding of the issue involved;
jurisdiction.
4. Toget her with such data as will show that the appeal
Appealed to the
was perfected on time (Material Data Rule);
CA. Petition for Appealed to
5. E very record on appeal exceeding 20 pages must
review with the SC.
contain a subject index.
the CA.
File a notice of File a verified File a verified SECTION 7. APPROVAL OF RECORD ON APPEAL
appeal or a petition for petition for Procedure if the appeal is through a record on appeal:
record on review with review on 1. File record on appeal;
appeal with the the CA. Pay certiorari with 2. Appellee may file an objection within five (5) days
court of origin the docket the SC (Rule from his receipt thereof;
(RTC) and give and lawful 45). Pay 3. If there is no objection the court may:
a copy to the fees, and P docket and a. Approve it as presented; or
adverse party. 500 as lawful fees and b. Direct its amendment on its own or upon the motion
deposit for P 500 for of the adverse party.
costs with the costs. 4. If an amendment is ordered the appellant must
CA. Furnish Submit proof redraft the record within the time ordered or if there is
RTC and of service of a no time, within ten (10) days from receipt;
adverse party copy to the 5. Submit the record for approval with notice on the
copy of such lower court adverse party.
(Rule 42). and adverse
party. SECTION 8. JOINT RECORD ON APPEAL
Within 15 days Within 15 Within 15 days Where both parties are appellants, they may file a joint
from the notice days from from notice of record on appeal within the time provided.
of the judgment notice of the the judgment
for notice of decision to be or order or SECTION 9. PERFECTION OF APP EAL; EFFECT
appeal and reviewed or denial of the THEREOF
within 30 days from the MR or new
for records on denial of a trial. Appeal is deemed perfected
appeal. MR or new
trial. 1. By notice of appeal: As to him, upon the filing of the
notice of appeal in due time; and
2. By record on appeal: As to him, with respect to the
SECTION 3. PERIOD OF ORDINARY APPEAL
subject matter thereof, upon t he approval of the
record on appeal filed in due time.
The appeal shall be taken within:
Effect of a perfected appeal: In appeal s by notice of
1. Fifteen (15) days from notice of the judgment or final
appeal, the court loses jurisdiction over the cas e upon
order appealed from;
2. Thirty (30) days from notice of the judgment or final the perfection of the appeal filed in due time AND the
order where a record on appeal is required; expiration of the time to appeal of the other parties.
3. Forty-eight (48) hours from notice of the judgment or
final order appealed from in habeas corpus cases.

In appeal s by record on appeal, the court loses 2. Transcribe such testimonial evidence;
jurisdiction only over the subject matter thereof upon 3. Shall affix an index containing the names of the
approval of the records on appeal filed in due time and witnesses and pages where their testimonies are
the expiration of the time to appeal of the other parties. found; and
4. List of the exhibits and pages wherein each appears.
Residual power/jurisdiction of the court after losing
jurisdiction but prior to the transmittal of the original SECTION 12. TRANSMITTAL
record or record on appeal: (O PAPA) The clerk of the trial court shall transmit to the appellate
court the original record or approved record on appeal:
1. Order exec ution pending appeal under Rule 39, 1. Within 30 days from perfection of appeal;
Sec.2 (motion for execution was filed before the 2. Toget her with proof of payment of the appellate court
expiration of the period to appeal); docket and other lawful fees;
2. To issue orders for the pres ervation of the rights of 3. Certified copy of the minutes of the proceedings;
the parties which do not involve matters litigated by 4. Order of approval;
appeal; 5. Certificate of correctness;
3. To approve compromise prior to the transmittal of the 6. Original documentary evidence; and
record; 7. Original and three (3) copies of the transcript.
4. Permit appeal by an indigent;
5. Allow withdrawal of the appeal. SECTION 13. DISMISSAL OF APPEAL
Prior to the transmittal of the original record or the
record on appeal, the trial court may, motu proprio or on
The concept of residual jurisdiction of the trial court is motion, dismiss the appeal for:
available at a stage in which t he court is normally 1. Having been taken out of time; or
deemed to have lost jurisdiction over the cas e or the 2. Non-payment of the docket and ot her lawful fees
subject matter involved in the appeal. There is no within the reglementary period.
residual jurisdiction to speak of where no appeal or
petition has even been filed (Fernandez v. Court of The requirement regarding the perfection of the appeal
Appeals, G.R. No. 131094, May 16, 2005). within the reglementary period is not only mandatory
but jurisdictional.
Duration of residual powers

Can the trial court di smi ss the appeal on the
Ordinary Appeal Petition for Review ground that the appeal is dilatory? No. Such ground
Until the records are Until the Court of can only be passed upon by the appellate court.
transmitted to the Appeals gives due Otherwise, the trial courts can easily forestall review of
appellate court. course to the petition. their decisions (Dasalla v. Caluag, G.R. No. L-18765,
July 31, 1963).
SECTION 10. DUTY OF THE CLERK OF COURT OF
THE LOWER COURT
Within 30 days after perfection of the appeal, it shall be RULE 42
the duty of the clerk of court:
1. To verify the correctness of the original record or P ET IT ION FOR REVIEW FROM T HE
record on appeal, as the case may be, and to make
certification of its correctness;
REGIONAL T RIAL C OURT S T O T HE
2. To verify the completeness of the records that will be C OURT OF APPEALS
transmitted;
3. If found incomplete, to take such measures as may Nature: This mode of appeal is not a matter of right. It
be required to complete the records; is a matter of discretion on the part of CA on whet her or
4. To transmit the records to the appellate court; not to entertain the appeal.
5. If t he efforts to complet e the records fail, he shall
indicate in his letter of transmittal: SECTION 1. HOW APP EAL TAKEN; TIME FOR
a. Those that were not included; FILING
b. Reasons for their non-transmittal; and
c. The steps taken or could be taken. The party desiring to appeal from a decision of the RTC
6. The clerk of court shall furnish the parties with copies rendered in the exercise of its appellate jurisdiction
of his letter of transmittal. may:
SECTION 11. TRANSCRIPT 1. File a verified petition for review with the CA:
Upon perfection of the appeal, the clerk shall direct the a. Within 15 days from notice of decision; or
stenographer concerned: b. Within 15 days from denial of petitioner’s Motion for
1. To attach to the record of the case 5 copies of the New Trial or MR.
transcript of testimonial evidence;

2. Pay the corresponding docket and other lawful fees, must be ex ercised in consonance with the tenets of
and depositing PhP500 for costs; justice and fair play, keeping in mind the circumstances
3. Furnish t he RTC and t he adverse party with a copy of obtaining in each case (Mercury Drug Corporation v. De
the petition. Leon, G.R. No. 165622, October 17, 2008).
The CA may grant an additional period of 15 days
within which to file the petition for review. No further SECTION 5. CONTENTS OF COMMENT
extension shall be granted except for the most
Comment of the respondent shall be filed in seven (7)
compelling reason and in no case to exceed 15 days.
legible copies, accompanied by certified true copies of
SECTION 2. FORM AND CONTENTS such material portions of the record referred to therein
together with other supporting papers and shall: (AIR)
The petition shall be filed in seven (7) legible copies,
with the original copy intended for the court being 1. State whether or not he accepts the statement of
indicated and shall: matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he
1. State the full names of the parties to the case; believes exist in petitioner’s statement of matters but
2. Indicate the specific material dates showing that it without repetition; and
was filed on time; 3. Reas ons why the petition should not be given due
3. Set forth concisely a statement of the: course.
a. Matters involved; A copy of the comment shall be served on the petitioner.
b. Issues raised;
c. Specification of errors of fact or law, or both, SECTION 6. DUE COURSE
allegedly committed by the RTC; and
d. Reas ons or arguments relied upon for the Petition for review is not a matter of right but
allowance of the appeal; discretionary on the CA. It may only give due course to
4. Accompanied by clearly legible duplicate originals or the petition if it shows on its face (CA finds prima facie)
true copies of the judgment or final orders of both that the lower court has committed an error of fact
lower courts; and and/or law that will warrant a reversal or modification of
5. Certificate of non-forum shopping. the decision or judgment sought to be reviewed.
Note: A certificate of non-forum shopping is required
even if a petition for review is not an initiatory pleading. SECTION 7. ELEVATION OF RECORD
SECTION 3. EFFECT OF FAILURE TO COMPLY It is merely discretionary on the CA to order the

WITH REQUIREMENTS elevation of the rec ords. This is because until the
petition is given due course, the trial court may still
Failure to comply with any of the following requirements issue a warrant of execution pending appeal and in
shall be sufficient ground for dismissal: some cases such as ejectment and those of Summary
Procedure, the judgments are immediately executory.
1. Payment of docket and other lawful fees;
2. Deposit for costs; It is only when the CA deems it necessary that the
3. Proof of service of the petition; and Clerk of the RTC will be ordered to elevate the records
4. Cont ents of the documents, which s hould accompany of the case.
the petition.
SECTION 8. PERFECTION OF APPEAL; EFFECT
SECTION 4. ACTION ON THE PETITION 1. Deemed perfected as to the petitioner upon the timely
filing of the petition for review and payment of the
The CA may: corresponding fees; and
2. Court loses jurisdiction over the case upon perfection
1. Require the respondent to file a comment on the
petition, not a motion to dismiss, within 10 days from of appeal on time and expiration of the period to
appeal.
notice; or
2. Dismiss the petition if it finds the same to be:
a. Patently without merit; Residual Power of the c ourt before the CA gives due
b. Prosecuted manifestly for delay; or course to the petition (Same as in Sec. 9, Rule 41).
c. The questions raised therein are too unsubstantial Except in civil cases decided under the Rule on
to require consideration.
Summary P rocedure, the appeal s hall stay the
judgment or final order unless the CA, the law, or these
Note: The ground for dismissal of an appeal under Rules shall provide otherwise (Sec. 8[b]).
Section 1 of Rule 50 are discretionary upon the
SECTION 9. SUBMISSION FOR DECISION
appellate court. The very wording of the rule uses the
word “may” instead of “shall”. This indicates that it is If the petition is given due course:
only directory and not mandat ory. Sound discretion

1. Case may be set for oral argument; or In criminal cases, the ruling of the Ombudsman shall be
2. The parties may be required to submit memoranda elevated to the Supreme Court by way of Rule 65. The
within 15 days from notice; Supreme Court’s power of review over resolutions and
3. Case shall be deemed submitted for decision upon orders of the Office of the Ombudsman is restricted
filing of the last pleading or memorandum. only to determining whether grave abuse of discretion
has been committed by it. The Court is not authorized
to correct every error or mistake of the Office of the
RULE 43 Ombudsman other than grave abuse of discretion
(Villanueva v. Ople, G.R. No. 165125, November 18,
APPEALS FROM T HE C OURT OF 2005). The remedy is not petition for review on
T AX APPEALS AND T HE Q UASI - certiorari under Rule 45 but a petition for certiorari
under Rule 65 (Salvador v. Mapa, G.R. No. 135080,
J UDICIAL AGENCIES T O T HE November 28, 2007).
C OURT OF APPEALS
Findings of fact of the agency concerned, when
SECTION 1. SCOPE supported by substantial evidence, shall be binding on
the CA.
Appeals from awards, judgments, final orders or
resolution of or authorized by any quasi-judicial agency SECTION 2. CASES NOT COVERED
in the exercise of its quasi-judicial functions.
Judgments and final orders or resolutions of the NLRC
These agencies include are reviewable by the Court of Appeals in an original
action for certiorari under Rule 65 (St. Martin Funeral
1. The Civil Service Commission;
Home v. NLRC, G.R.. No. 130866, Sept ember 16,
2. Securities and Exchange Commission;
3. Office of the President; 1998).
4. Land Registration Authority; SECTION 3. WHERE TO APPEAL
5. Social Security Commission;
6. Civil Aeronautics Board; Appeal under this Rule may be taken t o the CA within
7. Bureau of Patents Trademarks and Technology the period and in the manner herein provided, whether
Transfer; the appeal involves questions of fact, of law, or mixed
8. National Electrification Administration;
question of law and fact.
9. Energy Regulatory Board;
10. National Telecommunications Commission; SECTION 4. PERIOD OF APPEAL
11. Department of Agrarian Reform under R.A. No.
6657; Fifteen (15) days from:
12. GSIS;
13. Employees Compensation Commission; 1. Notice of the award, judgment, final order or
14. Agricultural Inventions Board; resolution; or
15. Insurance Commission; 2. Date of publication, if publication is required by law
16. Philippine Atomic Energy Commission; for its effectivity; or
17. Board of Investments; 3. Denial of petitioner’s MNT or MR (Only 1 MR shall be
18. Construction Industry Arbitration Commission; allowed).
and The CA may grant additional 15 days only within which
19. Voluntary arbitrators authorized by law. to file the petition for review, upon proper motion and
payment in full of docket fees.
A party advers ely affected by a decision or ruling of the No further extension shall be granted except for the
CTA en banc may file with the Supreme Court a verified most compelling reason and in no case shall exceed 15
petition for review on certiorari pursuant to Rule 45 (Sec. days.
12, R.A. No. 9282 and A.M. 07-7-12-SC).
SECTION 5. HOW APPEAL TAKEN
Note: The Court of Appeals has jurisdiction over
1. By filing a verified petition for review in seven (7)
orders, directives and decisions of the Office of the
legible copies;
Ombudsman in administrative disciplinary c ases only. It
2. With proof of service of a copy thereof on the adverse
cannot, therefore, review the orders, directives or party and on the court or agency a quo;
decisions of the Office of the Ombudsman in criminal 3. Pay to the clerk of court of CA docket and other
and non-administrative cases (Golangco v. Fung, Office lawful fees; and
of the Ombudsman, G.R. Nos. 147640-147762, 4. Deposit the sum of PhP500 for costs.
October 12, 2006).
RTC as Appellate Quasi-Judicial Agencies

Court (Rule 42) (Rule 43)
Decision is stayed by Decision is immediately

an appeal. executory; not stayed by an RULE 44
appeal. O RDINARY APPEALED C ASES
Factual findings not Factual findings are
conclusive to CA. conclusive upon CA if SECTION 1. TITLE OF CASES
supported by substantial
evidence. In all cases appealed to the CA under Rule 41, the title
of the case shall remain the same but party appealing
the case shall be referred to as appellant and the
adverse party as the appellee.
SECTION 6. CONTENTS OF THE PETITION
SECTION 2. COUNSEL AND GUARDIANS
1. State the full names of the parties to the case;
2. Set fort h concisely a statement of the facts and Counsel and guardians ad litem in the court of origin,
issues involved and the grounds relied upon for shall be considered as such in the CA.
review;
3. Accompanied by clearly legible duplicate originals or When others appear or are appointed, notice shall be
certified true copy of the award, judgment, final order served on the adverse party and filed with the court.
or resolution appealed from;
4. Certificate of non-forum shopping; and SECTION 3. ORDER OF TRANSMITTAL OF
5. State the specific material dates showing that it was RECORD
filed on time.
If not transmitted within 30 days after per fection of the
appeal, either party may file a motion with trial court,
SECTION 7. EFFECT OF FAILURE TO COMPLY with notice to the other, for the transmittal.
WITH REQUIREMENTS
SECTION 4. DOCKETING OF THE CASE
Sufficient ground for dismissal.
SECTION 5. COMPLETION OF RECORD
SECTION 8. ACTION ON THE PETITION
SECTION 6. DISPENSING WITH COMPLETE
SECTION 9. CONTENTS OF THE COMMENT RECORD
SECTION 10. DUE COURSE If completion of the rec ord cannot be accomplished
within a sufficient period due to insuperable or
The foregoing sections are similar to Sections 4, 5, and
extremely difficult cause:
6 of Rule 42.
1. The court on its own motion; or
SECTION 11. TRANSMITTAL OF RECORD
2. On motion of any of the parties
Within 15 days from notice that the petition has been May declare that the rec ord and its accompanying
given due course, the CA may require the agency transcripts and exhibits are already sufficient to decide
concerned to transmit the original or a legible certified the issues.
copy of the entire record of the proceeding under
review.
SECTION 7. APPELLANT’S BRIEF
SECTION 12. EFFECT OF APPEAL
It shall be filed, within forty-five (45) days from receipt
General Rule: Appeal shall not stay the award, of the notice of the clerk of court that all t he evidence is
judgment, final order or resolution sought to be attached to the record. The brief shall be filed in:
reviewed.
1. Seven (7) copies of legibly typewritten,
Exception: When the CA shall direct otherwise mimeographed or printed brief; and
upon such terms as it may deem just. 2. With proof of service of two (2) copies thereof upon
the appellee.
Similar to Section 9 of Rule 42. Failure to file appellant's brief on time is a ground for
dismissal of the appeal.

If a motion to dismiss an appeal has been filed, it Several counsels represent one appellant or appellee,
suspends the running of the period for filing the copies of the brief may be served upon any of them.
appellant’s brief, as the same would be unnecessary
should the motion be granted. SECTION 12. EXTENSION OF TIME FOR FILING
BRIEFS
The failure of the appellant to make specific assignment
of errors in his brief or page references to the record as General Rule: Not allowed.
required in t his section is a ground for dismissal of his Exception: For good and sufficient cause and only if
appeal. the motion for extension is filed before the expiration of
SECTION 8. APPELLEE’S BRIEF the time sought to be extended.
It shall be filed similar to appellant’s brief within forty- SECTION 13. CONTENTS OF APPELLANT’S BRI EF
five (45) days from the receipt of the appellant’s brief. (SAC FIARC)
SECTION 9. APPELLANT’S REPLY BRIEF 1. Subject index of the matter in the brief with a digest of
the arguments and page references, and a table of
Within 20 days from receipt of the appellee’s brief, cases alphabetically arranged, textbooks and statutes
appellant may file a reply brief answering points not cited with references to the pages where they are
covered in his main brief. cited;
2. Assignment of errors;
SECTION 10. TIME FOR FILING MEMORANDA IN 3. Under heading of “Stat ement of the case”, clear and
SPECIAL CASES concise statement of the nature of the action,
summary of the proceedings, appealed rulings and
In certiorari, prohibition, mandamus, quo warrant o and orders of the court, nat ure of the judgment and any
habeas corpus cases, parties shall file in lieu of briefs, matters necessary to an understanding of the nature
their res pective memoranda wit hin a non-extendible of the controversy;
period of 30 days from receipt of the notice. 4. Under the heading “Statement of facts,” clear and
concise statement in a narrative form of the fac ts
The failure of the appellant to file his memorandum admitted by both parties and of those in controversy;
within the period therefore may be a ground for 5. Clear and concise statement of the issues of fact or
dismissal of the appeal. law;
6. Under the heading “Argument,” appellant’s
arguments on each assignment of error with page
reference to the record. Authorities relied upon shall
Brief Memorandum be cited;
7. Under the heading “Relief,” specification of t he order
Ordinary appeals. Certiorari, Prohibition, or judgment which the appellant seeks; and
Mandamus, Quo 8. In cases not brought up by record on appeal,
Warranto and Habeas appellant’s brief shall contain, as an appendix, a copy
Corpus cases. of the judgment or final order appealed from.
Filed within forty-five Within thirty (30) days.

(45) days. SECTION 14. CONTENTS OF APPELLEE’S BRIEF
1. Subject index of the matter in the brief with a digest of

Contents specified by Shorter, briefer, only the arguments and page references, and a table of
Rules. one issue involved - No cases alphabetically arranged, textbooks and statutes
subject index or cited with references to the pages where they are
cited;
assignment of errors
2. Under the heading “Statement of Facts”, appellee
just facts and law
shall state that he accepts the statement of facts in
applicable. the appellant’s brief, or under the heading “Counter-
Statement of Facts”, point out such insufficiencies or
inaccuracies as he believes exist in the appellant’s
SECTION 11. S EV ERAL APPELLANTS OR statement of facts; and
APPELLEES OR SEV ERAL COUNSEL FOR EACH 3. Under the heading “Argument,” appellee shall set
PARTY forth his arguments in the case on each assignment
of error with page references to the rec ord.
Several appellants or appellees each counsel Authorities relied upon shall be cited.
representing one or more but not all of them – shall be
served with only one (1) copy of the briefs. SECTION 15. QUESTIONS THAT MAY BE RAIS ED
ON APPEAL.

The appeal can raise only questions of law or fact that: by verified motion filed in the same action or
proceeding at any time during its pendency (as
1. Has been raised in the court below; and amended by A.M. 07-7-12-SC).
2. Which is within the issues framed by the parties.
Except as provided in criminal cases in Sec 13(c) Rule
124 in relation to Sec 3(e) Rule 122, whenever the CA
Rule: The reversal of a judgment on appeal is generally
imposes reclusion perpetua, life imprisonment or a
binding only on the parties in the appealed case and
lesser penalty, judgment may be appealed to the SC by
does not affect or inure to the benefit of those who did
Notice of Appeal filed with the CA.
not join or were not made parties to the appeal.
Note: The petition shall raise only questions of law
Exception: Where the rights of such parties are so
which must be distinctly set forth.
interwoven and dependent on each other as to be
inseparable due to community of interests. Questions of Law Questions of Fact
Doubt or controversy as Doubt or difference as to

RULE 45 to what the law is on the truth or falsehood of
APPEAL BY C ERTIORARI T O T HE certain facts. facts, or as to probative
value of the evidenc e
S UPREM E C OURT presented.
If the appellate court can The determination

RTC, Sandiganbayan, CTA en determine the issue involves evaluation or
banc or CA renders decision raised without reviewing review of evidence.
or evaluating the
evidence.
Any party files a petition for review on certiorari
within 15 days from notice of final judgment or Can involve questions of Query invites the
order of lower court or notice of denial of motion interpretation of the law calibration of the whole
for reconsideration or new trial. with respect to certain evidence considering
set of facts. mainly the credibility of
witnesses, existence and
Appellant serves copies of petition on relevancy of specific
adverse parties and to the lower court, surrounding
and pay the corresponding docket fees. circumstances and
relation to each other
and the whole
SC may dismiss the petition or
probabilities of the
require the appellee to comment.
situation.
If given due course, parties may

submit memoranda. Note: The Supreme Court is not a trier of facts, and is
not to review or calibrate the evidence on record.
Moreover, findings of facts of the trial court, as affirmed
SC may affirm, reverse, or modify judgment
on appeal by the Court of Appeals, are conclusive on
of the lower court.
the Court (Boston Bank of the Philippines v. Manalo,
G.R. No. 158149, February 9, 2006).
SECTION 1. FILING OF PETITION WITH S UPREM E It has to be emphasized that it is not the duty of the
COURT Supreme Court to review, evaluate, and weigh the
probative value of the evidence adduced before the
Appeals to the SC can be taken from a judgment or lower courts (Frondarina v. Malazarte, G.R. No. 1484 23,
final order or resolution of the CA, the Sandiganbayan, December 6, 2006).
the Court of Tax Appeals en banc, the RTC or such
other courts as maybe authorized by law and only by General Rule: The findings of fact of the CA are final
verified Petition for Review on Certiorari. and conclusive and cannot be reviewed on appeal to
the SC.
The petition may include an application for a writ of
preliminary injunction or other provisional remedies.
The petitioner may seek the same provisional remedies

Exceptions to Conclusiveness of Facts 2. Indicate the specific material dates showing that it
was filed on time;
1. When the finding is grounded entirely on spec ulations, 3. Set forth concisely a statement of the:
surmise or conjecture; a. Matters involved;
2. When inference made is manifestly absurd, mistaken b. Reas ons or arguments relied upon for the
or impossible; allowance of the appeal;
3. When the judgment is premised on a 4. Accompanied by clearly legible duplicat e original or
misrepresentation of facts; certified true copy of the judgment or final order or
4. When there is grave abuse of discretion in the resolution; and
appreciation of facts; 5. Contain a certificate of non-forum shopping.
5. When the findings of fact are conflicting;
6. When the CA in making its findings went beyond the
issues of the case and the same is contrary to both Note: The Rules of Court provides that the Supreme
the admissions of appellants and appellees; Court “may require or allow the filing of pleadings, briefs,
7. When the findings of fact of the CA are at variance memoranda, or documents, as it may deem necessary
with those of the trial court, the SC has to review the within such periods and under such conditions as it may
evidence in order to arrive at the correct findings consider appropriate”; and “[i]f the petition is given due
based on the record; course, the Supreme Court may require the elevation of
8. When the findings of fact are conclusions wit hout
the complete rec ord of the case or specified parts
citation of specific evidence on which they are based;
thereof within fifteen (15) days from notice.” These
9. When the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are not disputed provisions are in keeping wit h the overriding standard
by the respondents; that procedural rules should be liberally construed to
10. The findings of fact of the CA is premised on promote their objective and to assist the parties in
the suppos ed evidence and is contradicted by the obtaining a just, speedy, and inexpensive determination
evidence on record; and of every action or proceeding (Metropolitan Bank &
11. When certain material facts and circumstances Trust Company v. Absolute Management Corporation,
have been overlook ed by the trial court which, if G.R. No. 170498. January 9, 2013).
tak en into account, would alter the result of the case
in that they would entitle the accused to acquittal.
SECTION 5. DISMISSAL OR DENIAL OF PETITION

SECTION 2. TIME FOR FILING; EXTENSION
1. Failure of the petitioner to comply with:
Within 15 days from notice of the judgment or final a. The payment of the docket or other lawful fees,
order or resolution appealed from or denial of the b. Deposit for costs,
petitioner’s motion for new trial or MR filed in due time. c. Proof of service, and
d. The contents of and the documents whic h would
The SC may for justifiable reasons grant an extension accompany the petition;
of 30 days only within which to file the petition provided 2. Appeal is without merit; or
that the motion for extension is duly filed and served, 3. Is prosecuted manifestly for delay; or
with full payment of the docket and other lawful fees 4. That the questions raised therein are too
and t he deposit for costs before the expiration of the unsubstantial to require consideration.
reglementary period.
Note: SC may dismiss the petition motu proprio.
SECTION 3. DOCKET AND OTHER LAWFUL FEES;
PROOF OF SERVICE
Unless he has theret ofore done so, petitioner shall pay SECTION 6. REVIEW DISCRETIONARY
the corresponding docket and other lawful fees to the
clerk of court of SC and deposit PhP500 for costs. Review will be grant ed only when there are special and
important reasons therefore.
Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted The following, while neither controlling nor fully
together with the petition. measuring the court’s discretion, indicate the character
of the reasons which will be considered:
SECTION 4. CONTENTS OF THE PETITION
a. Court a quo has decided a question of substance, not
The petition shall be filed in eighteen (18) copies and theret ofore determined by the S C, or has decided it in
shall: a way probably not in accord with law or with the
applicable decisions of the SC; or
1. State the full names of the appealing party as the b. Court a quo has so far departed from the accepted
petitioner and the adverse party as respondent; and us ual course of judicial proceedings, or so far

sanctioned such departure by a lower court, as to call Appeal by Review of Petition for
for an exercise of the power of supervision. Certiorari Judgments, Certiorari
(Rule 45) Final Orders or (Rule 65)
Resolutions
SECTION 7. PLEADI NGS AND DOCUMENTS THAT
(Rule 64)
MAY BE REQUIRED; SANCTIONS
Unless a writ of
For purposes of determining Sec. 5 or Sec. 8, SC may
require or allow the filing of such pleadings, briefs, Shall not stay preliminary
the execution injunction or
memoranda or documents within such periods and Stays the
under such conditions as it may consider appropriate. unless SC shall temporary
judgment or
direct otherwise restraining
order appealed
SC may impose the corresponding sanctions in case of upon such terms order is issued,
from.
non-filing or unauthorized filing or non-compliance with as it may deem does not stay
the conditions. just. the challenged
proceeding.
SECTION 8. DUE COURS E; ELEV ATION OF
RECORDS The judge,
The appellant court, quasi-
SECTION 9. RULE APPLI CABLE TO BOTH CIVIL and the judicial agency,
AND CRIMINAL CASES The COMELEC
appellee are the tribunal,
and COA shall
original parties corporation,
be public
to the action, board, officer or
respondents
Appeal by Review of Petition for and the lower person shall be
who are
Certiorari Judgments, Certiorari court or quasi- public
impleaded in the
(Rule 45) Final Orders or (Rule 65) judicial agency respondents
action.
Resolutions is not who are
(Rule 64) impleaded. impleaded in
the action.
Petition is Petition is
Petition is based
based on based on Motion for
on questions of
questions of questions of reconsideration
law.
law. jurisdiction. or for new trial
The filing of a is required;
It is a mode of motion for
It is a mode of appeal but the It is a mode of reconsideration If a motion for
appeal. petition used is review. or new trial, if reconsideration
Rule 65. Motion for or new trial is
allowed under
reconsideration filed, the period
the procedural
Directed against is not required. shall not only be
rules of the
an interlocutory interrupted but
Involves the Commission,
order of the another 60 days
Involves the review of shall interrupt
court or where shall be given to
review of the judgments, final period fixed.
there is no the petitioner.
judgment award orders or
appeal or any (SC Admin.
or final order on resolutions of
other plain, Matter 02-03).
the merits. COMELEC and
speedy or
COA.
adequate The court is in
The Court is in
remedy. the exercise of
the exercise of Court exercises
its appellate
Filed within 15 Filed within 30 Filed not later its appellate original
jurisdiction and
days from days from notice than 60 days jurisdiction and jurisdiction.
power of
notice of of judgment, from notice of power of review.
review.
judgment, final final order or judgment, order
order or resolution or resolution The petition
resolution sought to be sought to be The petition The petition shall be filed
appealed from. reviewed. reviewed. shall be filed shall be filed with the RTC,
with the with the CA,
Supreme Court. Supreme Court. Sandiganbayan
and COMELEC.

5. In actions filed under Rule 65, indicate the material

dates showing:
Note: As a rule, a party cannot file a petition both under a. When notice of t he judgment or final order or
Rules 45 and 65 of the Rules of Court becaus e said resolution was received;
procedural rules pert ain to different remedies and have b. When a motion for new trial or reconsideration, if
distinct applications. The remedy of appeal under Rule any, was filed; and
45 and an original action for certiorari under Rule 65 c. When notice of the denial thereof was received;
are mutually exclusive and not alternative or 6. Filed in seven (7) legible copies, with proof of service
cumulative. Thus, a party should not join both petitions on the respondent;
in one pleading. When a party adopts an improper 7. Accompanied by clearly legible duplicat e original or
certified true copy of the judgment or final order or
remedy his petition may be dismissed outright
resolution;
(Nagk ak aisang Mamumuo S a PICOP Resources, Inc. v.
8. Certificate of non-forum shopping;
Court of Appeals, G.R. Nos. 148839 -40, November 2, 9. Payment of docket and other lawful fees; and
2006). 10. Deposit the amount of P500.
However, the Court may set aside technicality for
justifiable reasons when the petition before the court is Failure to comply with the foregoing requirements shall
clearly meritorious and filed on time both under Rules be sufficient ground for the dismissal of the petition.
45 and 65. In accordance with the liberal spirit which
pervades the Rules of Court and in the interest of Substantial Compliance Rule: Rule 46 applies to
justice, the Court may treat the petition as having been actions for certiorari filed in the Court of Appeals but
filed under Rule 45 (International Corporate Bank , Inc. v. Rule 65 generally supplements the same. Mere
Court of Appeals, G.R. No. 129910, September 5, duplicate originals are sufficient under Rule 46 even if
2006). Rule 65 requires only certified true copies (Republic of
the Philippines v. Carmel Development, Inc., G.R.
Note: Rule on Writ of Amparo and Habeas Data No.142572, Feb. 20, 2002).
Any party may appeal from t he final judgment or order SECTION 4. JURISDICTION OV ER PERSON, HOW
to the Supreme Court under Rule 45. The appeal may ACQUIRED
raise questions of fact or law or both. The period of
appeal shall be five (5) working days from the dat e of Jurisdiction is acquired
notice of the judgment or order.
1. Over the petitioner – By filing of the petition;
2. Over the respondent – By the servic e on the latter of
RULE 46 the order or resolution indicating the courts initial
action on the petition or by his voluntary submission.
O RIGINAL C ASES
SECTION 5. ACTION BY THE COURT
SECTION 1. TITLE OF CASES.
The court may:
In all cases originally filed in the CA, the party instituting
the action shall be called petitioner and the opposing 1. Dismiss the petition outright with specific reas ons for
party the respondent. such dismissal; or
2. Require the respondent to file a comment on the
SECTION 2. TO WHAT ACTIONS APPLICABLE. same.
Original actions for certiorari, prohibition, mandamus, SECTION 6. DETERMI NATION OF FACTUAL
and quo warrant o. Petitions for habeas corpus are ISSUES
excluded, being governed by the rules on special
proceedings and Sec. 3, Rule 41. Procedural outline (original cases in the court of
appeals)
SECTION 3. CONTENTS AND FILI NG OF P ETITION;
EFFECT OF NON-COMPLIANCE WITH 1. Filing of the petition;
REQUIREMENTS. 2. Order to acquire jurisdiction over respondents OR
outright dismissal for failure to comply with the
The petition shall contain: requirements as to form and payment of docket and
other legal fees;
1. Full names and actual addresses of all petitioners 3. Require res pondents to file comment within ten (10)
and respondents; days from notice;
2. Concise statement of the matters involved; 4. Court may require the filing of a reply or such other
3. Factual background of the case; pleadings as it may deem necessary;
4. Grounds relied upon for the relief prayed for;

5. Determination of factual issue s, the court itself may of RTC of MTC

conduct hearings or delegate the reception of
evidence on such issues to any of its members or to
an appropriate court, agency or office (Sec. 6); and Filed with the Court of
Filed with the RTC
6. Submission of Memoranda. Appeals
Basis: It has exclusive Basis: RTC as a court of

Note: The rec eption of evidence may be delegated to a original jurisdiction over general jurisdiction
member of t he Court of A ppeals or a judge of the lower said action under Section under Section 19 (6) of
court who is not a public respondent. 9 (2) of BP 129 BP 129
SECTION 7. EFFECT OF FAILURE TO FILE The CA may dismiss the

The RTC has no such
COMMENT case outright; it has the
discretion. It is required
discretion on whether or
The case may be decided on the basis of the record, to consider it as an
not to entertain the
without prejudice to any disciplinary action which the ordinary civil action.
petition.
court may take against the disobedient party.
Important condition for the availment of thi s

RULE 47 remedy: The petitioner failed to move for new trial in, or
ANNULM ENT OF J UDGM ENT OR appeal from, or file a petition for relief against, or take
other appropriate remedies assailing the questioned
F INAL O RDERS AND RESOLUT ION judgment or final order or resolution through no fault
attributable to him.
SECTION 1. COVERAGE
If he failed to avail of those other remedies without
Annulment of Judgment
sufficient justification, he cannot resort to annulment
A remedy in law independent of the case where the provided in this Rule, otherwise he would benefit from
judgment sought to be annulled was rendered and may his own inaction or negligence.
be availed of though the judgment has been executed. Note: Annulment of Judgment does not apply to
The purpose of such action is to have the final and judgments rendered by quasi-judicial bodies. It does not
executory judgment set aside so that there will be a apply also to decisions or orders of the Ombudsman in
renewal of litigation. It is resorted to in cases where the administrative c ases whose decisions or orders may be
ordinary remedies of new trial, appeal, petition for relief appealed to the Court of Appeals under Rule 43
of judgment, or ot her appropriate remedies are no (Macalalag v. Ombudsman, G. R. No. 147995, Mar. 5,
longer available through no fault of the petitioner, and is 2004).
based on only two grounds: (1) extrinsic fraud and (2)
SECTION 2. GROUNDS FOR ANNULMENT
lack of jurisdiction (Alaban v. Court of Appeals, G.R. No.
156021, September 23, 2005). 1. Extrinsic fraud or collateral fraud – Extrinsic or
Collat eral Fraud refers to any fraudulent act of the
Like a petition for relief, an action for annulment of a prevailing party in the litigation which is committed
judgment is a recourse equitable in character, allowed outside of the trial of the case, whereby the
only in exceptional cases as where there is no available defeat ed party has been prevented from exhibiting
or adequate remedy (Ramos v. Combong, G.R. No. fully and fairly presenting his side of the case.
144273, October 20, 2005).
The use of forged instruments or perjured testimonies
The remedy may no longer be invoked where the party during trial is not an extrinsic fraud. Such evidence
has availed himself of the remedy of new trial, appeal, does not preclude a party’s participation in the trial
petition for relief or other appropriate remedy and lost or (Bobis v. Court of Appeals, G.R. No. 113796,
where he has failed to avail himself of those remedies December 14, 2000).
through his fault or negligence (Heirs of Maura S o v.
Obliosca, G.R. No. 147082, January 28, 2008). Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion
Nature: It is not a mode of appeal but an independent for new trial or petition for relief.
civil action.
2. Lack of jurisdiction over the subject matter and
Where filed: over the person.
Judgments, Final Judgments, Final

Orders, or Resolutions Orders, or Resolutions Lack of jurisdiction

The defens e of lack of jurisdiction may be barred by made as an incident in said action. This is proper only
estoppel by laches, which is that failure to do when the judgment is on its face null and void such as
something which should be done or to claim or in cases of lack of jurisdiction to render the judgment.
enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce SECTION 3. PERIOD FOR FILING ACTION
a right at a proper time.
Extrinsic Fraud Lack of
Note: The rule is that jurisdiction over the subject Jurisdiction
matter is conferred upon the courts exclusively by law,
and as lack of it affects the very authority of the court Period of Before it is barred
to take cognizance of the case, the objection may be Four (4) years
Filing by laches or
raised at any stage of the proceedings. from discovery.
action estoppel.
However, considering the facts and circumstances of
the present case, a party may be barred by laches Set aside the
from invoking this plea for the first time on appeal for questioned
the purpos e of annulling everything done in the case Court may on judgment and
with the active participation of said party invoking the motion order the render the same
plea (Tijam v. Sibonghanoy, G. R. No. L-21450, April Effect of trial court to try the null and void,
15, 1968). judgment case as if a timely without prejudice
MNT had been to the original
Note: The petitioner must show not a mere grave granted. action being re-
abuse of discretion but an absolute lack of jurisdiction filed in the proper
(Republic of the Philippines v. “G” Holdings, Inc., G.R. court.
No. 141241, November 22, 2005). A claim of grave
abuse of discretion will support a petition for certiorari
under Rule 65 but it will not support an action for
annulment of judgment (Riano, p. 486). SECTION 4. FILING AND CONTENTS
Note: While under Section 2, Rule 47 of the Rules of The action shall be commenced by filing:
Court a Petition for A nnulment of Judgment may be
1. Verified petition alleging therein:
based only on the grounds of extrinsic fraud and lack of
a. With particularity the facts and the law relied upon;
jurisdiction, jurisprudence recognizes lack of due
b. Petitioner’s good and substantial cause of action or
process as additional ground to annul a judgment. In defense;
Arcelona v. Court of Appeals, the Supreme Court 2. Filed in seven (7) legible copies together with
declared that a final and exec utory judgment may still sufficient copies corresponding to the number of
be set aside if, upon mere inspection thereof, its patent respondents;
nullity can be shown for having been issued without 3. Certified true copy of the judgment or final order or
jurisdiction or for lack of due process of law (Leticia resolution shall be attached t o the original copy of the
Diona, represented by her Attorney-in-fact, Marcelina petition;
Diona v. Romeo Balangue, Sonny Balangue, Reynaldo 4. Affidavits of witnesses or documents supporting the
Balangue, and Esteban Balangue, Jr., G.R. No. 173559. cause of action or defense; and
January 7, 2013) 5. Certificate of non-forum shopping.
Note: The petitioner need not be a party to the
Attack of a void judgment: When the judgment is null judgment sought to be annulled. What is essential is
and void on its very face, the judgment may be attacked: that the petitioner is one who can prove his allegation
that the judgment was obt ained and that he was
1. Directly; or affected thereby (Alaban v. Court of Appeals, supra). It
2. Collaterally; is a remedy in law independent of the case where the
judgment sought to be annulled is promulgated
When the nullity is not apparent on the face of the
(Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
judgment, the judgment can only be directly attacked.
SECTION. 5. ACTION BY THE COURT
Direct Attack
An independent action must be filed to challenge the Two stages:
validity of the judgment whose nullity is not patent on its
face. 1. A preliminary evaluation of the petition for prima facie
merit therein; and
Collateral Attack 2. The issuance of summons as in ordinary civil cases
A collateral attack is made when, in another action to and such appropriate proceedings thereafter as
obtain a different relief, an attack on the judgment is contemplated in Sec. 6 (Regalado, p. 572).

The rule allows the CA to dismiss the petition outright Annulment of judgments of quasi -judicial bodies: In
as in special civil actions. Macalalag v. Ombusdman (G.R. No. 147995, March 4,
2004), the Court ruled that Rule 47 of the 1997 Rules of
For the court to acquire jurisdiction over the respondent, Civil P rocedure on annulment of judgments or final
the rule requires the issuance of summons should orders and resolutions cover annulment of the
prima facie merit be found in the petition and the same judgments of Regional Trial Courts by the Court of
is given due course. Appeals.
Note: Res judic ata is not a bar to an action for
annulment of the judgment sought to be annulled The silence of B.P. Blg. 129 on the jurisdiction of the
(Orbeta v. Sendiong, G.R. No. 155236, July 8, 2005). Court of Appeals to annul judgments or final orders and
resolutions of quasi-judicial bodies like the DARAB
SECTION 6. PROCEDURE indicates its lack of such authority (Springfield
Development Corporation v. RTC of MIsamis Oriental,
Procedure in ordinary cases shall be observed.
G.R. No. 142628, February 6, 2007) (Riano, p. 488).
The reception of evidenc e may be referred to a member
of the court or a judge of RTC should a trial be
necessary. RULE 48
SECTION 7. EFFECT OF JUDGMENT P RELIM INARY C ONFERENCE
SECTION 8. SUSP ENSION OF P RESCRIPTIVE
PERIOD
Nature: Preliminary conference before the appellate
Prescriptive period for the re-filing of the aforesaid court is not mandatory. Its calling is within the discretion
original action shall be deemed suspended from the of said court.
filing of such original action until the finality of the
judgment of annulment. SECTION 1. PRELIMINARY CONFERENCE
However, the prescriptive period shall not be At any time during the pendency of a case, court may
suspended where the extrinsic fraud is attributable to call the parties and their counsel: (DAFT)
the plaintiff in the original action. 1. To define, simplify and clarify the issues for
SECTION 9. RELIEF AVAILABLE determination;
2. To consider the possibility of an amicable settlement,
Judgment may include award of damages, attorney’s except when the case is not allowed by law to be
fees and other relief. compromised;
3. To formulate stipulations of facts and admissions of
If already executed, the court may issue Orders of documentary exhibits, limit the number of witnesses
Restitution or other relief as justice and equity may to be presented ; and
warrant. 4. To tak e up suc h other matters whic h may aid the
court in the prompt disposition of the case.
SECTION 10. ANNULMENT OF JUDGMENTS OR
FINAL ORDERS OF MUNICIPAL TRIAL COURTS
Failure to appear at the preliminary conference is a
Filed in the RTC having jurisdiction over the MTC. ground for dismissal of the petition (S ec.1 [h], Rule 50;
Sec 5 [e], Rule 56).
RTC is a court of general jurisdiction. All cases, the
jurisdiction over which is not specifically provided for by SECTION 2. RECORD OF THE CONFERENCE
law to be within the jurisdiction of any other court fall
under its jurisdiction (Durisol Philippines, Inc. v. Court of SECTION 3. BINDING EFFECT OF THE RES ULTS
Appeals, G.R. No. 121106, February 20, 2002). OF THE CONFERENCE
Note: Where a petition for annulment of judgment was In the CA, this procedural device may be availed of not
dismissed by the Court of Appeals, the Supreme Court only in original actions but also in cases on appeal
is without jurisdiction to entertain another petition for wherein a new trial was granted on the ground of newly
annulment in the guise of a special civil action for discovered evidence.
certiorari under Rule 65. The remedy of the petitioner is The CA can act as a trier of facts. Hence, the
to file a petition for review on certiorari under Rule 45 preliminary conference authorized is a convenient
(Lapu-lapu Development v. Risos, G.R. 118633, adjunct to such power and function.
September 6, 1996).

Note: With the exception of Section 1 (b), dismissal of

an appeal is directory and not mandatory (Advincula v.
RULE 49 IAC, G.R. No. 75310, Dec. 10, 1987).
O RAL ARGUM ENT Other grounds for t he dismissal of an appeal are: (AMF)
1. By agreement of the parties, as where the case was

SECTION 1. WHEN ALLOWED amicably settled by them;
2. Where the appealed case has become moot or
At its own instance or upon motion of a party, the court academic; and
may hear the parties in oral argument on the merits of a 3. Where the appeal is frivolous or dilatory.
case or any material incident in connection therewith.
SECTION 2. CONDUCT OF ORAL ARGUMENT Failure to File Notice of Failure to File Brief
Appeal Within the Period
SECTION 3. NO HEARING OR ORAL ARGUMENT
FOR MOTIONS Not jurisdictional, maybe
Jurisdictional
waived by the parties
Motions in the SC and the CA do not contain notices of
hearing as no oral arguments will be heard in support Results in abandonment
thereof; and if the appellat e court desires to hold a Decision becomes final
of appeal, which could
hearing thereon, it will itself set the date with notice to and executory upon
lead to dismissal upon
the parties. The adverse party may file objections to the failure to move for
failure to move for
motion within 5 days from service, upon the expiration reconsideration
reconsideration
of which such motion shall be deemed submitted for
resolution.
SECTION 2. DISMISSAL OF IMPROP ER APP EAL TO

RULE 50 THE COURT OF APPEALS
D ISM ISSAL OF APPEAL No transfer of appeals, erroneously taken to it or to the

Court of Appeals, whichever of these tribunals has
appropriate appellat e jurisdiction, will be allowed. Also,
SECTION 1. GROUNDS FOR DISMISSAL OF
elevating such appeal by the wrong mode of appeal
APPEAL (RF-PUSANAN)
shall be a ground for dismissal.
a. Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed by A resolution of the Court of Appeals dismissing the
these rules; appeal and remanding the case to the trial court for
b. Failure to file the notice of appeal or the record on further proceedings is merely interlocutory. Hence, a
appeal within the period prescribed by these rules; motion for its reconsideration filed a year later may be
c. Failure of the appellant to pay the docket and other entertained and granted.
lawful fees as provide in Sec. 5, Rule 40 and Sec 4,
Rule 41; The Court of Appeals may dismiss the appeal outright
d. Unauthorized alt erations, omissions or additions in even without motion.
the approved record on appeal as provide in Sec 4,
Rule 44; The remedy if dismissed for improper appeal: To re-file
e. Failure of appellant to serve and file the required it in the proper forum but has to be wit hin the prescribed
number of copies of his brief or memorandum within period.
the time provided by these Rules;
SECTION 3. WITHDRAWAL OF APPEAL
f. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the record A matter of right before the filing of the appellee’s brief.
as required in Sec 13, par a, c, d and f, Rule 44;
g. Failure of the appellant to take the necessary steps Note: While under this section, an appeal may be
for the correction or completion of the record within withdrawn by the appellants as a matter of right at any
the time limited by the court in its order; time before the filing of the appellee’s brief; however
h. Failure of the appellant to appear at the preliminary the rule does not apply where the notice of withdrawal
conference under Rule 48 or to comply with the filed by new counsel did not bear the appellant’s
orders, circulars, or directives of the court wit hout
conformity (Pioneer Insurance and Surety Corp. v. De
justifiable cause; and
Dios Transportation, G.R. No. 147010, July 18, 2003).
i. The fact that the order or judgment appealed from is
not appealable.

the decision, order, or resolution appealed from (S ec.

RULE 51 40, BP 129).
J UDGM ENT Memorandum Decision
One rendered by an appellat e court which incorporates

SECTION 1. WHEN CASE DEEMED SUBMITTED by reference the findings of fact and conclusions of law
FOR JUDGMENT contained in the decision of the lower court (Sec. 24,
A. In ordinary appeals Interim Rules for Memorandum Decision).
1. No hearing on the merits – Upon t he filing of t he
SECTION 6. HARMLESS ERROR RULE (IN
last pleading, brief, or memorandum; or expiration
APPEALS)
of the period for its filing;
2. Hearing is held – Upon its termination or upon t he The court, at every stage of the proceeding, must
filing of the last pleading or memorandum as may disregard any error or defect which does not affect the
be required or permitted to be filed by the court; or
substantial rights of the parties such as error in
expiration of the period for its filing;
admission or exclusion of evidence or error or defect in
B. In original actions and petitions for review
1. No comment is filed – Upon expiration of t he period the ruling or order.
to comment; SECTION 7. JUDGMENT WHERE THERE ARE
2. No hearing is held – Same as in A(1);
SEVERAL PARTIES
3. Hearing is held – Same as in A(2).
SECTION 8. QUESTIONS THAT MAY BE DECIDED
SECTION 2. BY WHOM RENDERED General Rule: The appellate court can only rule on the
Members who participated in the deliberation on the basis of grounds raised as errors on appeal.
merits of the case before its assignment to a member Exceptions:
for the writing of the decision.
1. Those affecting jurisdiction over the subject matter;
SECTION 3. QUORUM AND VOTING IN THE COURT 2. E vidently plain and clerical errors within the
contemplation of law;
To be binding, a judgment must be duly signed and 3. In order to subserve the ends of justice;
promulgated during the incumbency of t he judge who 4. Matters raised in t he trial court having some bearing
signed it. on the issue which the parties failed to raise or which
the lower court ignored; and
Note: Where the decision was promulgated after t wo of
5. Matters closely related to an error assigned.
the three justices necessary to constitute a quorum in a
division had lost their aut hority to act as justices, said SECTION 9. PROMULGATION AND NOTICE OF
decision is null and void (Lao v. To-Chip, G.R. No. JUDGMENT
76594, February 26, 1988).
In justifiable situations or by agreement in t he division,
SECTION 4. DISPOSITION OF THE CASE the filing of dissenting or separate opinions may be
SECTION 5. FORM OF DECISION reserved or the majority opinion may be promulgated
without prejudice to the subsequent issuance of a more
The requirement for the statement of facts and the law extended opinion, provided the requisite votes for
refers to a decision or for that matter a final res olution. promulgation of judgment have been obt ained and
The same are not required on minute resolutions since recorded.
these usually dispose of the case not on its merits but
on procedural or technical considerations. SECTION 10. ENTRY OF JUDGMENTS AND FINAL
RESOLUTIONS
With respect to petitions for review and motions for
reconsideration, the Constitution merely requires a SECTION 11. EXECUTION OF JUDGMENT
statement of the legal basis for the denial thereof or General Rule: The motion for its execution may only be
refusal of due course thereto. The court may opt, but it filed in the proper court after its entry.
is not required to issue an extended resolution thereon.
Exception: Where t he judgment or final order or
Decisions and resolutions of a court in appealed cases resolution, or a portion thereof, is ordered to be
shall clearly and distinctly state the findings of fact and immediately executory.
the conclusions of law on which they are based, which
(1) may be cont ained in the decision or final resolution In original actions in the Court of Appeals, its writ of
itself, or (2) adopt ed by reference from those set forth in execution shall be accompanied by a certified true copy

of the entry of judgment or final resolution and

addressed to any appropriat e offic er for its enforc ement.
Separately from these rules is Article VIII, Section 4 (2)
In appealed cases, where the motion for execution of the 1987 Constitution which governs the decision-
pending appeal is filed in the Court of A ppeals at a time making by the Court en banc of any matter before it,
that it is in possession of the original record or the including a motion for the rec onsideration of a previous
record on appeal, the resolution granting such motion decision. This provision states:
shall be transmitted to the lower court from which the
case originated, together with a certified true copy of “Section 4. (2) All cases involving the constitutionality of
the judgment or final order to be executed, with a a treaty, international or executive agreement, or law,
directive for such court of origin to issue the proper writ which shall be heard by the S upreme Court en banc,
for its enforcement. and all other cases which under the Rules of Court are
required to be heard en banc, including those involving
Note: Equally untenable is the contention that the constitutionality, application, or operation of
respondent judge, before allowing execution, should presidential decrees, proclamations, orders, instructions,
have notified the parties of the receipt by him of the ordinances, and other regulations, shall be decided with
records of the case from the appellate court, in the concurrence of a majority of the Members who
accordance wit h paragraph 2, section 11 of Rule 51 of actually took part in the deliberations on the issues in
the Rules of Court. The duty prescribed by the rule the case and voted thereon (Apo Fruits Corporation v.
cited applies only to the clerk of the court of first Land Bank of the Philippines, G.R. No. 164195, April 5,
instance and not to the judge or clerk o f the municipal 2011).”
or city court (Salud Clemente-De Guzman v. Municipal
Judge Reyes, A.M. No. 2358-MJ, June 29, 1982 ). The prohibition does not include interloc utory orders
(Dizon v. Court of Appeals, G.R. No. 96296, June 18.
1992).
RULE 52 The rule against entertaining a second motion for
M OT ION FOR RECONSIDERAT ION reconsideration is rooted in the basic tenet of
immutability of judgments. At some point a decision
becomes final and executory and, consequently, all
litigations must come to an end (Verginesa-S uarez v.
SECTION 1. PERIOD FOR FILING Judge Dilag, A.M. No. RTJ-06-2014, August 16, 2011).
Within 15 days from notice. A second motion for reconsideration is forbidden except
for extraordinarily persuasive reasons, and only upon
The rules now require the service of the motion to the
express leave first obt ained (S ystra Philippines v.
adverse party.
Commissioner of Internal Revenue, G. R. No. 176290,
SECTION 2. SECOND MOTION FOR September 21, 2007).
RECONSIDERATION
SECTION 3. RESOLUTION OF THE MOTION
The rules prohibit a second motion for reconsideration
Ninety (90) days from the dat e the CA declares it
by the SAME party.
submitted for resolution.
Note: The absolut e terms of this Rule is tempered by
This time limit applies only to MR in the CA. It does not
Section 3, Rule 15 of the Internal Rules of t he Supreme
apply to MR in SC, pursuant to the exception in Sec. 2
Court that provides:
(b), Rule 56.
“Sec. 3. Second Motion for Reconsideration. – The
SECTION 4. STAY OF EXECUTION
Court shall not entertain a second motion for
reconsideration and any exception to this rule can only
be granted in the higher interest of justice by the Court
en banc upon a vote of at least two-thirds of its actual
membership. There is reconsideration "in the higher
RULE 53
interest of justice" when t he assailed decision is not NEW T RIAL
only legally erroneous, but is likewise patently unjust
and potentially capable of causing unwarrant ed and
irremediable injury or damage to the parties. A second SECTION 1. PERIOD FOR FILING; GROUND
motion for reconsideration can only be entertained Filing of a motion for new trial is at any time after the
before the ruling sought to be reconsidered becomes perfection of the appeal from the decision of the lower
final by operation of law or by the Court’s declaration.”

court and before the Court of Appeals loses jurisdiction Official reports of court decisions which are published
over the case. by the Government and, therefore, constitute primary
authority thereon, are thos e in the Philippine Reports,
The only ground i s newly di scovered evidence Official Gazette and Court of Appeals Reports, all of
which could not have been discovered prior to the trial which are authorized by law (Regalado, p. 659).
in the court below by the exercise of due diligence and
of such character as would probably alter the result
thereof. A second motion for new trial in the CA would
not be possible, unlike in Sec. 5 Rule 37. RULE 56
Note: Rule 53 is not applicable t o the S C. It is not a
P ROCEDURE IN T HE S UPREM E
trier of facts. C OURT
SECTION 2. HEARING AND ORDER
Testimonies may be taken orally or by depositions. A. ORIGINAL CASES

SECTION 1. ORIGINAL CASES COGNIZABLE
SECTION 3. RESOLUTION OF THE MOTION
The rule specifically states what cases may be
Ninety (90) days from the dat e the CA declares it
originally filed with the Supreme Court.
submitted for resolution.
1. Petition for certiorari, prohibition, mandamus, quo
SECTION 4. PROCEDURE IN NEW TRIAL
warranto, habeas corpus;
2. Disciplinary proceedings against members of the
judiciary and attorneys;
3. Cases affecting ambassadors, other public ministers
RULE 54 and consuls; and
4. Petitions for writ of amparo and habeas data.
I NT ERNAL B USINESS
SECTION 2. RULES APPLICABLE
SECTION 1. DISTRIBUTION OF CAS ES AMONG
DIVISIONS Rules 46, 48, 49, 51, 52 and 56 subject to certain
exceptions.
SECTION 2. QUORUM OF THE COURT
B. APPEALED CASES
RULE 55
SECTION 3. MODE OF APPEAL
P UBLICAT ION OF J UDGM ENT S AND
An appeal to the Supreme Court may be taken only by
F INAL RESOLUT IONS a petition for review on certiorari (Rule 45).
SECTION 4. PROCEDURE
SECTION 1. PUBLICATION SECTION 5. GROUNDS FOR DISMISSAL OF

APPEAL (TM – PReCEN)
1. It shall be published in the Official Gazette and in the
Reports officially authorized by the court; 1. Failure to take the appeal within the reglementary
2. In the language in which they have been originally period;
written; 2. Lack of merit in the petition;
3. Toget her with the syllabi therefor prepared by the 3. Failure to pay the requisite docket fee and other
reporter in consultation with the writers thereof; lawful fees or to make a deposit for costs;
4. Memoranda of all other judgments and final 4. Failure to comply with the requirements regarding
resolutions not so published shall be made by the proof of service and contents of and the documents
reporter and published in the Official Gazette and the which should accompany the petition;
authorized reports. 5. Failure to comply with any circular, directive or order
of the SC without justifiable cause;
6. Error in the choice or mode of appeal; and
SECTION 2. PREP ARATION OF OPINIONS FOR 7. Fact that the case not appealable to the SC.
PUBLICATION
SECTION 3. GENERAL MAKE-UP OF VOLUMES Note: The dismissal of the appeal may be motu proprio
or on motion of the respondent.

SECTION 6. DISPOSITION OF IMPROPER APPEAL Purpose of provi sional remedies: Provisional

remedies are resorted to by litigants for any of the
Improper Appeal following reasons: (PSSP)
Improper appeal means the choice or mode of appeal is 1. To preserve or protect the rights or interests of
correct but the appellant raises issues which the court litigants while the main action is pending;
could not resolve (e.g. Where petition for review on 2. To secure the judgment;
certiorari was tak en but factual issues are invok ed for 3. To preserve the status quo; and
resolution). 4. To preserve the subject matter of the action.
In this instance the case (1) may be referred to the CA,

although the SC (2) may also dismiss the appeal. Other provisional remedies
Erroneous Appeal A. Issued by a family court

1. Temporary Custody of Minor Children;
Erroneous appeal means error in t he choice or mode of 2. Order allowing Visitation Rights of Parents;
appeal (e.g. Where appeal tak en to the SC is by notice 3. Guardian Ad litem of a child;
of appeal instead of a petition for review on certiorari) 4. Hold Departure Order (Criminal cases under
(Circular No. 2-90, March 9, 1990). Circular 39-97 and Family cases under AM 02-11-
12);
In this instance, the appeal shall be dismissed outright. 5. Spousal and Child Support (AM 02-11-12);
6. Administration of Common Property (AM 02-11-12)
SECTION 7. PROCEDURE IF OPINION IS EQUALL Y B. Interim Reliefs in a Petition for a Writ of Amparo
DIVIDED (TWIP)
1. Temporary Protection Order
2. Inspection Order
P ROVISIONAL REM EDIES 3. Production Order
4. Witness Protection Order
C. Interim Reliefs under R.A. No. 9372, Human
Security Act
Provisional Remedies 1. Inspection, Examination of Accounts and Freeze
Order
Provisional remedies are temporary, auxiliary, and
2. Seizure and Sequestration of Accounts and Assets
ancillary remedies available to a litigant for the 3. Restriction of Travel
protection and pres ervation of his rights while the main
action is pending. They are writs and processes which
are not main actions and they presuppose the Note: The court, justice or judge may grant certain
existence of a principal action (Riano, p.532). interim reliefs immediately after the filing of the petition
motu proprio or at any time before final judgment. The
The following are the provisional remedies provided for respondent may also avail of interim reliefs—ins pection
2
in the Rules of Court: (AIR S) and production orders (Riano, p. 534 & 536).
1. Preliminary Attachment (Rule 57); P.D. No. 1818 prohibits the issuance of injunctive writs
2. Preliminary Injunction (Rule 58); not only against government entities but also against
3. Receivership (Rule 59);
any person or entity involved in the execution,
4. Replevin (Rule 60); and
implementation, and operation of government
5. Support Pendente Lite (Rule 61).
infrastructure projects.
Note: The enumeration above is not exclusive. For

example, in the special proceeding of custody of minors, Juri sdiction over provi sional remedies: The court
the court may grant a parent visitation rights and/or which grants or issues a provisional remedy is the court
temporary custody of the child (S ec. 6, Rule 99, Rules which has jurisdiction over the main action.
of Court; Tan v. Adre, A. M. No. RTJ-05-1898, January Inferior courts may also grant all appropriate provisional
31, 2005). remedies in an action pending wit h it and is within its
These provisional remedies are also available in jurisdiction (Riano, p. 532; Sec. 33 [1] BP 129).
criminal cases (Rule 127), and in some special civil
actions and special proceedings.
RULE 57
P RELIM INARY AT T ACHM ENT

Preliminary Attachment 1. Seize the property of the debtor before final

judgment and put the same in custodia legis even
A provisional remedy issued upon order of the court while the action is pending for the satisfaction of a
where an action is pending, to be levied upon the later judgment (Insular Bank of Asia and America v.
property of the defendant so that it may be held by the Court of Appeals, G.R. No. 61011, October 18,
sheriff as security for the satisfaction of whatever 1990); or
judgment may be rendered in the case (Davao Light 2. To enable the court to acquire jurisdiction over the
and Power, Inc. v. Court of Appeals, G.R. No. 93262, res or the property subject of the action in cases
November 29, 1991). where service in person or any service to acquire
jurisdiction over the defendant cannot be effected
The provisional remedy of preliminary attachment is (Philippine Commercial International Bank v.
harsh and rigorous for it exposes the debtor to Alejandro, G.R. No. 175587, October 24, 2008).
humiliation and annoyance. The rules governing its
issuance are, therefore, strictly construed against the
applicant (Wee v. Tank iansee, G.R. No.171124, Kinds of Attachment
February 13, 2008). 1. Preliminary Attachment is one issued at the
commencement of the action or at any time before
Requisites for a preliminary attachment to issue entry of the judgment as security for the satisfaction
of any judgment that may be recovered in the cases
1. The case must be any of those where preliminary provided for by the rules.
attachment is proper (see grounds below); 2. Garni shm ent is a kind of attachment in which t he
2. The applicant must file a motion whether ex parte or plaintiff seeks to subject either the property of the
with notice and hearing; defendant in the hands of a third person called
3. The applicant must show by affidavit that there is no garnishee, to his claim or the money which said third
sufficient security for the claim sought to by enforced person owes the defendant (Riz al Commercial
and that the amount claimed in the action is as much Bank ing Corporation v. De Castro, G. R. No. L-
as the sum of which t he order is granted above all 34548, November 29, 1988).
counterclaims; and 3. Levy on Execution is the writ issued by the court
4. The applicant must post a bond executed to the after judgment by which the property of the judgment
adverse party. obligor is taken into the custody of the court before
the sale of the property on execution for the
satisfaction of a final judgment.
Being provisional in character, attachment depends for
its existence and effectivity upon the pendency of a
principal action in court. SECTION 1. GROUNDS UPON WHI CH
ATTACHMENT MAY ISSUE
Attachment places the property under the custody of
the court (in custodia legis). It is in t he nature of The proper party may have the property of the adverse
proceeding quasi in rem (Banco-Espanol Filipino v. party attached (1) at the commencement of the action
Palanca, G.R. No. L-11390, March 26, 1918) although or (2) at any time before entry of judgment.
sometimes referred to as an action in rem (Valdevieso
v. Damalerio, G.R. No. 133303, February 17, 2005). Parties entitled to attachment:
Whether in rem or quasi in rem, the legal effects are 1. Plaintiff;

2. Any proper party.
identical because in both cases, jurisdiction over the
person of the defendant is not required as long as the
court acquires jurisdiction over the res (Biaco v. The term plaintiff or “any other plaintiff” in whose
Countryside Rural Bank , G.R. Nos. 140743 & 140745, favor an attachment is grant ed under the rule, includes
September 17, 2009; Villareal v. Court of Appeals, also the defendant whenever he asserts a count erclaim
G.R. No. 107314, September 14, 1998). against the plaintiff, whether or not such count erclaim
arises out of the same transaction which is the subject
It does not affect the decision on the merits; the right matter of plaintiff’s original claim. It also includes
to recover judgment on the alleged indebtedness and defendant in interpleader when he asserts a
the right to attach the property of the debtor are counterclaim against the plaintiff; in this case, he may
entirely separat e and distinct, and the judgment in the attach the funds in dispute.
main action neither changes the nature nor determines
the validity of the attachment.
Grounds for the Issuance of a Writ of Attachment:
Attachment is purely a statutory remedy, thus, it (REPo-GReS)
cannot exist without a statute granting it (US v. Namit,
G.R. No. 12957, October 29, 1918). 1. In actions for recovery of a specified sum of money or
damages, except moral and exemplary, on a cause of
Purposes of preliminary attachment: action arising from law, contract, quasi-cont ract, delict

or quasi-delict against a party about to depart from Note: The foregoing enumeration is exclusive. Except
the Philippines with intent to defraud his creditors; for No. 6, all the grounds contemplate the commission
2. In actions for money or property embezzled or of fraud by the person against whom it is issued.
fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corp., or an Preliminary attachment on appeal: Even if a case is
attorney, factor, broker, agent or clerk, in the course already on appeal, preliminary attachment could still be
of his employment as such, or by any person in a availed of by an applicant.
fiduciary capacity, or for a willful violation of duty;
Note: It is also a provisional remedy in criminal cases Note: Matters concerning preliminary attachment
under Rule 127, Sec.2. should be strictly construed.
3. In actions to recover the possession of property Classes of attachment

unjustly or fraudulently taken, det ained, or converted
when the property or part thereof, has been Preliminary
concealed or disposed of to prevent its being found Final Attachment
Attachment
by the applicant or any authorized person; (Rule 39)
(Rule 57)
Preliminary It is an auxiliary remedy
Replevin It is a means for the
Attachment to give security for a
execution of a final
judgment still to be
The property to be The property is a specific judgment.
rendered.
attached is any property one, the thing object of
of the adverse party, not the action. There is no sale It should always be
necessarily the object of because a decision has accompanied by a sale
the action. not yet been rendered. at public auction.
A vailable after the

Resorted to at the judgment in the main
Any time before entry of May only be availed of
commencement of the action had become
judgment. before an answer is filed.
action or at any time executory, and for the
before ent ry of judgment, satisfaction of said
Personal or real Personal property only. judgment.
for the temporary seizure
property.
of property of the
adverse party.
4. In actions against a person guilty of fraud in

contracting the debt (dolo causante) or incurring or The proc eeds of t he sale
performing an obligation upon which the action is The proc eeds of t he sale are turned over to the
based (dolo incidente); attaching creditor.
are in custodia legis.
a. Dolo Causant e – fraud used to induce another to
enter into a contract (A rt. 1338, Civil Code of the
Philippines);
b. Dolo Incidente – fraud employed by a party in the Intervention is not
Intervention is a remedy
fulfillment of his obligation or aft er the obligation available as remedy
to a stranger whose
has been contracted; this only obliges the person because there is an
property has been
employing it to pay damages (Art. 1344, Civil Code assumption of final
attached.
of the Philippines) judgment in Rule 39
5. In actions against a party who has removed or
disposed of his property, or is about to do s o, with
intent to defraud his creditors;
6. In actions against non-residents not found in the Proceeding in attachment is in rem where the
Philippines, or on whom summons is served by defendant does not appear, and in personam where he
publication. appears in the action (Regalado, p. 622).
Three (3) stages in the grant of preliminary

Here, the attachment is intended t o enable the c ourt attachment
to acquire juris diction over the res by converting the
1. The court issues the order granting the application;
action in personam to an action quasi in rem, and
2. The writ of attachment issues pursuant to the order
thus, justifying summons by publication and other granting the writ;
modes of summons under Sec. 15 of Rule 14. 3. The writ is implemented.

Note: For the initial two stages, it is not necessary that Note: The affidavit must contain all the allegations
jurisdiction over the person of the defendant be first required; failure to do so renders the writ totally
obtained. defective as the judge issuing it acts in excess of
jurisdiction.
However, once the implement ation of the writ
commences, the court must have acquired jurisdiction Contents of the affidavit
over the defendant for wit hout such jurisdiction, the
court has no power or aut hority to act in any manner 1. A sufficient cause of action exists;
2. Case is one of those mentioned in Sec. 1;
against the defendant (Mangila v. Court of Appeals,
3. No other sufficient security for the claim sought to be
G.R. No. 125027, August 12, 2002).
enforced by action;
When to apply for preliminary attachment 4. Amount due to the applicant or possession of which
is entitled to recover is as much as the sum for which
1. At the commencement of the action; or the order is granted above all legal counterclaims.
2. At any time before entry of judgment.
SECTION 4. CONDITION OF APPLICANT’S BOND

Methods to procure attachment:
Bond posted by the attaching creditor ans wers for the
1. Writ may be prayed for in the complaint itself damages and costs which may be adjudged to the
providing that allegations warranting its issuance are adverse party arising from and by reason of the
made therein; attachment.
2. May be issued pursuant to a separate motion for
attachment whenever the writ is not prayed for in the SECTION 5. MANNER OF ATTACHING PROPERTY
original complaint. (Rule on Prior or Contemporaneous Service)
Note: Levy shall not be made unless prec eded or

It is not only the plaintiff who may apply for the issuance contemporaneously accompanied by: (SCABO)
of a writ of preliminary attachment. The pertinent
provisions of Sec. 1, Rule 57 provide that “a plaintiff or 1. Service of summons;
any proper party …” (Riano, p. 548). 2. A copy of the complaint;
3. Application for attachment;
SECTION 2. ISSUANCE AND CONTENTS OF 4. Affidavit and bond of the applicant; and
ORDER 5. Order and writ of attachment.
Issued either ex-parte or upon motion with notice and

hearing by the court in which the action is pending. But prior or contemporaneous servic e of summons shall
not apply when:
It may be heard ex parte (an exception to the general
rule that motions are supposed to be heard). 1. Summons could not be served personally or by
substituted service;
Reason for ex parte hearing: If the plaintiff contends 2. Defendant is a resident of the Philippines temporarily
before the court that he is dealing with a dishonest absent therefrom;
person and if this pers on is given a chance to be heard, 3. Defendant is a non-resident; and
he might continue with his acts of dishonesty and 4. The action is one in rem or quasi-in rem.
convey all his properties before the court could take his
properties under custodia legis. Note: All properties exempt from execution are likewise
However, when issued ex-parte, the writ cannot be exempt from attachment (Sec. 2, Rule 57; Sec. 13,
Rule 39).
enforced and may not be validly implemented unless
preceded by a service of summons upon the defendant, How to prevent the attachment: If the attachment has
or simultaneously accompanied by service of summons, not yet been effected, the party whose property is
a copy of the complaint, the application for attachment, sought to be attached may prevent the attachment
the order of attachment and the attachment bond either:
(Davao Light and Power Co. Inc. v. Court of Appeals,
supra; Mangila v. Court of Appeals, G.R. No. 125027, 1. By depositing with the court from which the writ was
August 12, 2002). issued an amount equal to the value of the bond fixed
by the court in the order of attachment or an amount
SECTION 3. AFFIDAVIT AND BOND REQUIRED equal to the value of the property to be attached,
exclusive of costs; or
The affidavit and bond required must be duly filed with
the court before the order issues.

2. By giving a counterbond executed to the applicant, It is not necessary to serve summons upon the
in an amount equal to the bond posted by the latter to garnishee in order that the trial court may acquire
secure the attachment or in an amount equal to the jurisdiction. All that is necessary is the service upon him
value of the property to be attached, exclusive of of the writ of garnishment (Perla Compania de Seguros
costs (Riano, p. 557). v. Ramolete, G.R. No. 60884, November 13, 1991).
SECTION 9. EFFECT OF ATTACHMENT OF

SECTION 6. SHERIFF’S RETURN INTEREST IN PROP ERTY BELONGING TO THE
SECTION 7. ATTACHMENT OF REAL AND ESTATE OF A DECEDENT
PERSONAL PROPERTY SECTION 10. EXAMI NATI ON OF PARTY WHOS E
What may be the subject of attachment: PROP ERTY IS ATTACHED AND P ERS ONS
INDEBTED TO HIM OR CONTROLLI NG HIS
1. Real property or any interest therein; PROP ERTY; DELIV ERY OF PROP ERTY TO
2. Personal property capable of manual delivery; SHERIFF
3. Stocks or shares or interest therein;
4. Debts and credits, including bank deposits, financial Note: The examination in Rule 39 is proper only when
interest, royalties, commissions and other personal the writ of execution is returned unsatisfied.
property not capable of manual delivery; or
5. Interest of the party against whom attachment is Examination under this section is not subject to a
issued in property belonging to the estate of the preliminary condition but is anticipatory in nature and
decedent, whether as heir, legatee, or devisee. may be resorted to even if the writ of attachment was
not returned because no property could be found to be
levied upon thereunder.
Par. (3) and (4) refer to garnishment. By such notice of
garnishment, the court acquires jurisdiction over the If the garnishee does not admit the indebtedness or he
garnishee and the latter becomes a forced intervenor in claims the property, the controversy must be
the case. determined in an independent action (Bucra Corp. v.
Macadaeg, G.R. No. L-2894, August 30, 1949).
Debt
SECTION 11. WHEN ATTACHED P ROP ERTY MAY
Means some definite amount of money, ascertained or
BE SOLD AFTER LEV Y O N ATTACHMENT AND
capable of being ascertained, which may be paid over BEFORE ENTRY OF JUDGMENT
to the sheriff or to the court, while credits and personal
property are something belonging to the defendant, but Sale at public auction after levy on attachment and
in possession and under the control of the garnishee before ent ry of judgment may be ordered by the court in
(Feria, p.294). case the property attached is (1) perishable in nat ure,
or that (2) the interests of all the parties will be
Property legally attached is property in custodia legis
subserved.
and cannot be interfered with without the permission of
the proper court, but this is confine d to cases where the The proceeds will be in custodia legis.
property belongs to the defendant or one in which the
defendant has proprietary interest. SECTION 12. DISCHARGE OF ATTACHMENT UP ON
GIVING COUNTERBOND
Principle of Seniority of Liens
SECTION 13. DISCHARGE OF ATTACHMENT ON
Where the property attached by the judgment creditor OTHER GROUNDS
had previously been mortgaged, the judgment creditor’s
lien is inferior to that of the mortgagee which must first Grounds for di scharge of preliminary attachment:
be satisfied in the event of foreclosure. In reality, what (CI-JEE)
was attached by the judgment creditor was merely the 1. Debt or has posted a counter-bond or has made the
judgment debtor’s right or equity of redemption (Top requisite cash deposit (Sec. 12);
Rate International Services Inc. v. Intermediate 2. Attachment was improperly or irregularly issued (S ec.
Appellate Court, G.R. No. 67496, July 7, 1986). 13) as where there is no ground for attachment, or
the affidavit and/or the bond filed therefore are
Note: There could be several attachment issued by defective or insufficient (Sec. 3);
different courts over the same property. 3. Judgment is rendered against the attaching creditor
(Sec. 19);
SECTION 8. EFFECT OF ATTACHMENT OF DEBTS,
4. Attachment is excessive, but the discharge shall be
CREDITS AND ALL OTHER SIMILAR PERS ONAL limited to the excess (Sec. 13); and
PROPERTY 5. Property attached is exempt from execution.

An ex-parte discharge or suspension of the attachment SECTION 18. DISPOSITION OF MONEY DEPOSITED
is a disservice to the orderly administration of justice
and nullifies the underlying role and purpose of SECTION 19. DISPOSITION OF ATTACHED
preliminary attachment in preserving the rights of the PROP ERTY WHERE JUDGM ENT IS FOR PARTY
parties pendente lite as an ancillary remedy. AGAINST WHOM ATTACHMENT WAS ISSUED
SECTION 14. PROCEEDINGS WHERE PROPERTY SECTION 20. CLAIM FOR DAMAGES ON ACCOUNT
CLAIMED BY THIRD PERSON OF IMPROP ER, IRREGUL AR OR EX CESSIVE
ATTACHMENT
Remedy of the third person:
When must application for damages be filed: Before
1. File a terceria or third party claim the trial or before appeal is perfected, or before the
(similar to Sec. 16, Rule 39); judgment becomes executory.
2. File independent action to rec over
his property; or It shall be awarded aft er hearing and included in the
3. File a motion for intervention (This is available only judgment.
before a judgment is rendered, hence, not allowed
under Rule 39.). If the judgment of t he appellate co urt be favorable to
the party against whom the attachment was issued, he
must claim damages during the pendency of the appeal.
Note: A third-party claim may be filed wit h the sheriff
while he has possession of the properties levied upon, Procedure for claiming damages outlined in Sec. 20 is
this being the only time fixed for the purpose exclusi ve. Hence, such claims for damages cannot be
(Mangaoang v. Provincial Sheriff of La Union, G.R. No. the subject of an independent action.
L-4869, May 26, 1952).
Exception:
Attachment bond under Sec. 3 i s different from the
1. Where t he principal case was dismissed for lack of
bond under Sec. 14 (proceedings where property jurisdiction by the trial court without giving an
claimed by third person). opportunity to the party whose property was attached
to apply for and prove his claim; and
Sec. 3 refers to the attachment bond to assure the
2. Where the damages by reason of the attachment was
return of defendant’s property or the payment of
sustained by a third person who was not a party to
damages to the defendant if the plaintiff’s action to the action wherein such writ was issued.
recover possession of the same property fails, in order
to protect the person’s right of possession of said
property, or to prevent the defendant from destroying Note: Any award of damages for the wrongful
the same during the pendency of the suit. issuance of a provisional remedy should be recovered
in the SAME CASE. The recovery of damages cannot
Under Sec. 14, the purpos e of the bond is to indemnify be had in a separate action.
the sheriff against any claim by the intervenor to the
property seized or for damages arising from such
seizure, which the sheriff was making and for which the
sheriff was directly responsible to the third party (Fort
RULE 58
Bonifacio Development Corporation v. Yllas Lending P RELIM INARY I NJUNCT ION
Corporation, G.R. No. 158997, October 6, 2008).
SECTION 15. SATISFACTION OF JUDGMENT OUT

OF PROPERTY ATTACHED; RETURN OF SHERIFF SECTION 1. PRELIMINARY INJUNCTION DEFINED;
CLASSES
SECTION 16. BALANCE DUE COLLECTED UP ON
AN EX ECUTION; EX CESS DELIV ERED TO Injunction
JUDGMENT OBLIGOR
A judicial writ, process or proceeding whereby a party is
SECTION 17. RECOV ERY UP ON THE COUNTER- ordered to do or refrain from doing a particular act.
BOND
Preliminary Injunction (PI)
Where the writ of execution is returned unsatisfied, the
An ancillary or preventive remedy where a court
liability of the counter-bond automatically attaches
requires a person, a party or even a court or t ribunal
without the need for the plaintiff to file a supplemental
either to refrain (prohibitory) from or to perform
pleading to claim payment from the s urety (V anguard
(mandatory) particular acts during the pendency of an
Assurance Corp. v. Court of Appeals, G.R. No. L-25291,
action. It is merely a temporary remedy subject to the
May 27, 1975).

final disposition of the principal action ( Dungog v. Court Exception: If the acts complained of are continuing in
of Appeals, G.R. Nos. 77850-51, March 25, 1988). nature and were in derogation of plaintiff’s rights at the
outset.
Purpose: To preserve the status quo or to prevent
future wrongs in order to pres erve and protect certain Prohibitory Injunction Prohibition
interests or rights during the pendency of the action
(Cortez-Estrada v. Heirs of Domingo / Antonia Samut, (Rule 65)
G.R. No. 154407, February 14, 2005).
Directed against a party Directed against a court,
Status Quo
in the action. tribunal or a person
The last actual, peaceable and u ncontested situation exercising judicial, quasi-
which precedes a cont roversy. It is the situation existing judicial or ministerial
at the time of the filing of the case. functions.
Requisites: It does not involve Based on the ground that

1. There must be a verified application; jurisdiction of the court. the court against whom
2. The applicant must establish that he has a right to the writ is sought had
relief or a right to be protected and that the act acted wit hout or in
against which t he injunction is sought violates such excess of jurisdiction.
right;
3. The applicant must establish that there is a need to It may be the main action Always the main action.
restrain the commission or continuance of the acts itself or just a provisional
complained of and if not enjoined would work remedy.
injustice to him;
4. A bond must be posted, unless otherwise exempted
by the court; and
5. The threatened injury must be incapable of pecuniary
Mandatory Injunction Mandamus
estimation.
(Rule 65)
Kinds of injunction
Directed to a party Special civil action
Preliminary Prohibitory Preliminary Mandatory litigant, not to a tribunal seeking a judgment
Injunction and is issued to require a commanding a tribunal,
Injunction
party to perform an act to board or officer or person
Purpose is to prevent a restore the last to perform a ministerial
Purpose is to require a peaceable uncontested duty required t o be
person from the
person to perform a status preceding the performed by law
performance of a
particular act. controversy.
particular act.
The act has already

The act had not yet been been performed and this
performed. act has violated the General rule: A writ of preliminary injunction should not
issue to take (the properties) out of the possession of
rights of another.
one party to place it in the hand of another (Medina v.
Greenfield Dev’t Corporation, G.R. No. 140228,
Status Quo is preserved. Status Quo is restored.
November 19, 2004).
Exception: A possessor deprived of his possession

through forcible ent ry may within 10 days from the filing
When writ may be issued: It may be issued at any
of the complaint present a motion t o secure from the
stage prior to the judgment or final order.
competent court, in the action for forcible entry, a writ of
Injunction may be an action in itself, brought preliminary mandatory injunction to restore him in his
specifically to restrain or command the performance of possession. The court shall decide the motion within 30
an act. As an action, it is immediately executory under days from filing thereof (Article 539, New Civil Code).
Sec. 4, Rule 39.
SECTION 2. WHO MAY GRANT PRELIMINARY
General Rule: It will not issue against acts already INJUNCTION
consummated.
1. Supreme Court in its original and appellate
jurisdiction;

2. Court of Appeals whether or not in aid of its appellate form and substanc e (Rivera v. Mirasol, A.M. No. RTJ-
jurisdiction; 04-1885, July 14, 2004).
3. Trial court in cases pending before it within its
territorial jurisdiction; The applicant must post a bond unless exempted by
4. Sandiganbayan; and the court. This shall be in an amount to be fixed by the
5. Court of Tax Appeals. court and execut ed in favor of the party enjoined to the
effect that the applicant shall pay to the party enjoined
all damages which he may sustain by reas on of the
Note: If the main action is one for injunction, an
preliminary injunction or the restraining order if the court
inferior court cannot grant the preliminary injunction.
should finally decide that the applicant was not entitled
Ratio: An action for injunction is one incapable of to the writ or order.
pecuniary estimation, hence, cognizable by the RTC.
SECTION 5. PRELIMINARY INJUNCTION NOT
Limitations a s to power of RTC to issue writ of GRANTED WITHOUT NOTICE; EXCEPTION
preliminary injunction
There must be prior notice to the person sought to be
1. It could restrain acts being or about to be committed enjoined and a hearing before preliminary injunction
within its territorial jurisdiction only; may be granted.
2. It could not issue said writ in unfair labor practices;
3. It could not issue said writ against the Securities and A. If great or irreparable injury would result to the
Exchange Commission (SEC), Bureau of Patents, applicant before the matter can be heard on notice:
Trademarks and Technology Transfer, or the The court may issue a temporary restraining order,
COMELEC; and effective only for 20 days from notice on the party
4. It could not interfere by injunction with the judgment sought to be enjoined.
of a court of concurrent or coordinate jurisdiction. B. If the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury: The judge may issue ex parte a TRO effective
SECTION 3. GROUNDS F OR ISSUANCE OF only for 72 hours from issuance.
PRELIMINARY INJUNCTION
Its effectivity may be extended after conducting a
(EnCoD) summary hearing w/in the 72-hour period until the
application for preliminary injunction can be heard.
1. Applicant is entitled to the relief demanded; or
2. Commission, continuance or non-performance of the Injury is considered “irreparable” if it is of such
act complained of would work injustice to the constant and frequent recurrenc e that no fair or
applicant; or reasonable redress can be had therefore in court of law
3. Party, court, agency or a person is doing, threatening, or where there is no standard by which their amount
or is attempting to do, or is procuring or suffering to
can be measured with reasonable accuracy (SSC v.
be done, some act or acts probably in violation of the
Bayona, G.R. No. L-13555, May 30, 1982).
rights of the applicant respecting the subject of the
action or proceeding. The total period of effectivity of the TRO: shall not
exceed 20 days, including the 72 hours.
Where a writ of preliminary injunction may not be Note: If application is denied or not resolved within said
issued by the court:
period, the TRO is deemed automatically vacated.
1. Foreclos ure of a mortgage by a government bank The effectivity of TRO is not extendible. There is no
(P.D. No. 385);
need for a judicial declaration to that effect.
2. Commencement and performance of infrastructure
projects by the government unless it is the SC which A TRO issued by the CA or any of its members is
will issue the writ (R.A. No. 8975); and effective for 60 days from notice to the party sought to
3. Conc essions, licenses, permits, patents or public
be enjoined.
grants as to the disposition, exploitation, utilization,
exploration and/or development of natural resources A TRO issued by the SC or a member thereof is
(P.D. No. 605). effective until further orders.
Note: The t rial court, the CA, the S andiganbayan or the

SECTION 4. VERIFIED APPLI CATION AND BOND CTA that issued a writ of preliminary injunction against
FOR P RELIMINARY INJUNCTION OR TEMPORARY a lower court, board, officer, or quasi -judicial agency
RESTRAINING ORDER shall decide the main case or petition within six (6)
Absence of verification makes an application or petition months from the issuance of the writ (as amended by
for preliminary injunction pat ently insufficient both in A.M. No. 07-7-12-SC effective December 27, 2007).

An order granting a writ of preliminary injunction is an 1. Insufficiency;

interlocutory order, not a final order. 2. On other grounds upon affidavits of the party or
person enjoined, which may be opposed by the
Unlike other provisional remedies, preliminary injunction applicant also by affidavits; and
may not be defeated by a counterbond. 3. If injunction would cause irreparable damage t o the
person enjoined while the applicant can be fully
It is improper for a judge t o order a hearing on the compens ated for such damages as he may suffer
issuance of a temporary restraining order where it was provided the defendant files a BOND to pay all the
not prayed for in the complaint (Universal Motors damages which the applicant may suffer.
Corporation v. Rojas, AM No. RTJ -03-1814, May 26,
2005).
SECTION 7. S ERVICE OF COPI ES OF BONDS;
Injunction TRO EFFECT OF DISAPPROVAL OF THE SAME
May exceed 20 days. Does not exceed 20 days SECTION 8. JUDGMENT TO INCLUDE DAMAGES
(RTC); Does not exceed AGAINST PARTY AND SURETIES
60 days (CA); Indefinit e
(SC). The procedure for claiming damages on the bond is the
same as that in preliminary attachment.
Restrains or requires the Maintains the status quo.
Recovery of damages for irregular issuance of
performance of particular
injunction, as where the main case is dismissed and the
acts.
injunction is dissolved, is limited to the amount of the
bond.
SECTION 9: WHEN FINAL INJUNCTION GRANTED

Status Quo Order
If after the trial of the action it appears that the applicant
Status quo order is not a TRO. It is more in the nature
is entitled to have the act or acts complained of
of a c ease and desist order. It has no specified duration
permanently enjoined.
and does not specifically direct the performance of an
act. It lasts until it is revoked. Its duration may even be
subject to agreement of the parties. No bond is required
for its issuance. Preliminary Injunction Final Injunction
Note: It is resorted to when the projected proceedings Section 1 Rule 58 Section 9 Rule 58
in the case made the conservation of the status quo
One issued in the
desirable or essential, but the affected party neither
Granted at any stage of judgment in the case
sought such relief nor did the allegations in his pleading
an action prior to the permanently restraining
sufficiently make out a case for a TRO.
judgment or final order the defendant or making
TRO issued by therein. the preliminary injunction
executive judge for permanent.
TRO issued by ordinary
multi-sala courts /
judge
ordinary judge for
single-sala courts
RULE 59
Good for 20 days RECEIVERSHIP
Good for 72 hours including the first 72
hours
SECTION 1. APPOINTMENT OF RECEIVER
Issued before raffling Issued after raffling Upon verified application, one or more receivers of
the property which is the subject of the action may be
Issued after summary appointed by the court where the action is pending in
Issued ex-parte
hearing the following cases: (IFAC)
1. Applicant has an interest in the property or fund

subject of the proceeding and such property is in
SECTION 6. GROUNDS FOR OBJECTION TO, OR danger of being lost, removed, or materially injured
FOR MOTION OF DISSOLUTION OF, INJUNCTI ON unless a receiver is appointed;
OR RESTRAINING ORDER:

2. In foreclosure of mortgage, when the property is in Receivership may be denied or lifted:

danger of being wasted, dissipated or materially
injured, and t hat its value is probably insufficient to 1. If the appointment sought or granted is wit hout
discharge the mortgage debt or that it has been sufficient cause (Sec. 3);
agreed upon by the parties; 2. Adverse party files a sufficient bond to ans wer for
3. After judgment, to preserve the property during the damages (Sec. 3);
pendency of an appeal or to dispose of it according to 3. Bond posted by the applicant for grant of receivership
the judgment or to aid execution; is insufficient (Sec. 5); or
4. When appointment of receiver is the most convenient 4. Bond of the receiver is insufficient (Sec. 5).
and feasible means of preserving, administering or
disposing of the property in litigation.
SECTION 4. OATH AND BOND OF RECEIVER
Before entering upon his duties, the receiver shall be

Note: The property must be under litigation.
sworn to perform them faithfully and shall file a bond.
Purpose: For the pres ervation of, and at making more
Two kinds of bonds in receivership
secure existing rights; to protect and preserve the rights
of the parties during the pendency of the main action, 1. Applicant’s Bond;
during the pendency of an appeal or as an aid in the 2. Receiver’s Bond.
execution of a judgment when the writ of execution has
been returned unsatisfied (Riano, p. 590).
SECTION 5. S ERVICE OF COPI ES OF BONDS;
A receiver is a person appointed by the court in behalf EFFECT OF DISAPPROVAL
of all the parties to an action for the purpose of
preserving the property involved in the suit and to SECTION 6. GENERAL POWERS OF RECEIVER.
protect the rights of all the parties under the direc tion of Powers of the receiver include: (BTRC
2 - 2
MPD I)
the court (Mallari v. Court of Appeals, G.R. No. L-26467,
July 15, 1981). He is an officer of the court who is 1. Bring and defend, in such capacity, actions in his own
indifferent to the litigants and neutral. name;
2. Take and keep possession of the property in
A receiver is not a representative party under Rule 3 controversy;
but a real party in interest, but he cannot file a case 3. Receive rents;
without the consent of the receivership court. 4. Collect debts due to himself as receiver or t o the fund,
property, estate, person, or corporation of which he is
Receivership, like injunction, may be the principal the receiver;
action itself or just an ancillary remedy. 5. Compound for and compromise the same;
6. Make transfers;
Such appointment of the RTC, during the perfection of 7. Pay outstanding debts;
an appeal, is covered by its residual jurisdiction under 8. Divide the money and other property that shall remain
Sec. 9 of Rule 41, since this does not involve any among the persons legally entitled to receive the
matter litigated by the appeal. same;
9. Generally to do such acts respecting the property as
A receiver could be appointed even after the the court may authorize; and
termination of the case, even during the ex ecution 10. Invest funds in his hands, only by order of the
stage of the judgment. court upon the written consent of all the parties.
Note: This provisional remedy may be resorted to
during the pendency of an appeal or even after the No action may be brought by or against a receiver
judgment has become final and executory. without leave of the court which appointed him.
Who may grant receivership: Receivership may be A receiver may not invest funds without an order from
granted by the court in which the action is pending, by the court and wit hout the written consent of the parties
the Court of Appeals or the Supreme Court, or any to the action.
member thereof.
The rule talks of the current receiver of the company
SECTION 2. BOND ON APPOI NTMENT OF and not the previous receiver. The reason behind Rule
RECEIVER 59, Section 6, which requires leave of court for all suits
by or against the present receiver, is to forestall any
SECTION 3. DENIAL OF APPLICATION OR
undue interference with the receiver’s performance of
DISCHARGE OF RECEIVER
duties through improvident suits. Apparently, such
situation cannot apply to Orendain who is no longer BF
Homes’ receiver. Henc e, an action filed by a successor-

receiver against his predecessor-receiver is allowed Writ of Preliminary

Writ of Replevin
under Rule 59, Section 6 without leave of court Attachment
(Orendain v. BF Homes, Inc., G.R. No. 146313,
October 31, 2006). The purpose is to have
the property put in the
SECTION 7. LIABILITY FOR REFUSAL OR The purpose is to recover custody of t he court to
NEGLECT TO DELIVER PROPERTY TO RECEIVER personal property capable secure the satis faction
of manual delivery from of the judgment that
A person who refuses or neglects to deliver a property,
the defendant. may be rendered in
within his control and which is the subject of the action,
favor of the plaintiff at
to the receiver may be punished for contempt and shall
some future time.
be liable to the receiver for the money or the value of
the property plus damages. The property either
belongs to the plaintiff or The property does not
SECTION 8. TERMINATION OF RECEIV ERSHIP;
one over which the belong to the plaintiff
COMPENSATION OF RECEIVER
plaintiff has a right of but to the defendant.
The court, (1) on motion of either party or motu proprio, possession.
(2) upon determining that the necessity for a receiver
May be sought only when A vailable even if
no longer exists, shall (3) aft er due notice to all parties
the principal action is for recovery of property is
and a (4) hearing, settle the accounts of the receiver,
the recovery of personal only incidental to the
direct delivery of the funds or property in his possession
property. relief sought.
to the person adjudged entitled thereto and order the
discharge of the receiver. The receivers shall be Can be sought only when May be resorted to
entitled to a reasonable compensation which is to be defendant is in actual or even if the property is
taxed as costs upon the defeated party or apportioned constructive possession in possession of a third
as justice requires. of the property. person.
SECTION 9. JUDGMENT TO INCLUDE RECOV ERY Cannot be availed of Can be availed of even
AGAINST SURETIES when property is in if property is in custodia
custodia legis. legis.
Note: Where the damages sustained were not by
reason of the appointment of the receiver but to his own A vailable from
malfeasance, the recovery shall be against the commencement but
receiver’s bond and may be rec overed in a separate A vailable before before entry of
action (De la Rosa & Co. v. De Borja, G.R. No. L-28611, defendant answers. judgment (i.e. even
January 30, 1929). when there has already
been an answer).
RULE 60 Bond is double the value Bond is fixed by the
REPLEVIN of the property. court.
Extends only to personal Extends to all kinds of

SECTION 1. APPLICATION property capable of property whether real,
manual delivery personal or incorporeal
Replevin
Attachment to recover
The provisional remedy seeking for possession of a
possession of personal
personal property prior to the determination of the main
A vailable to recover property unjustly
action for the recovery thereof.
personal property even if detained presupposes
Replevin may also be a main action with the ultimate the same is not being that the same is being
goal of recovering personal property capable of manual concealed, removed or concealed, removed or
delivery wrongfully detained by a person. In this sense, disposed of. disposed of to prevent
it is a suit in itself (Riano p. 593). its being found or taken
by the applicant.
When applied for: A writ of replevin must be applied
for at the commencement of the action or at any time
before the defendant files his answer, for which reason
Note: There can be no replevin and preliminary
there can be no replevin before the appellate courts.
attachment in the same case because the purposes are

different. In Rule 57, it is for security. In Rule 60, it is mandatory and must be complied with within the 5-day
for recovery of possession. period.
SECTION 2. AFFIDAVIT AND BOND SECTION 6. DISPOSITION OF PROP ERTY BY

SHERIFF
Procedure for the application for Replevin
(Requisites): The sheriff shall retain the property for five (5) days.
Within such period, the adverse party (1) may object to
1. File an application at the commenc ement of the the sufficiency of the applicant’s bond or surety or (2)
action or at any time before defendant answers.
he may file a redelivery bond.
2. Application must contain an affidavit.
The affidavit must show that: After five (5) days and the adverse party failed t o object
or his redelivery bond is insufficient, the sheriff shall
a. Applicant is the owner of the property claimed,
particularly describing it, or is entitled to the deliver the property to the applicant.
possession thereof; Defendant entitled to the return of the property
b. Property is wrongfully detained by the adverse
under a writ of replevin if:
party;
Note: If the detention is actually allowed by law, 1. He seasonably posts a redelivery bond;
then no replevin (Twin Ace Holding v Rufina, G.R. 2. Plaintiff’s bond is found to be insufficient or defective
No. 160191, June 8, 2006) and is not replaced with a proper bond; or
3. Property is not delivered to the plaintiff for any reason.
c. Property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or s eized
under a writ of execution or under custodia legis; SECTION 7. PROCEEDI NGS WHERE PROPERTY
and CLAIMED BY THIRD PERSON
d. Actual market value of the property.
3. Applicant must give a bond, executed to the adverse Similar as in third-party claims in execution and in
party and double the value of the property. attachment.
Note: In Section 14 of Rule 57, the affidavit is served

SECTION 3. ORDER upon the sheriff while he has possession of the
attached property. In Section 7 of Rule 60, the affidavit
Upon the filing of the affidavit and the approval of the
is served wit hin the five 5 days in which the sheriff has
bond, the court shall issue an order and the
possession, in connection with Section 6.
corresponding writ of replevin describing the personal
property and requiring the sheriff to take such property SECTION 8. RETURN OF PAPERS
into his custody.
The sheriff must file the order, with his proceedings
SECTION 4. DUTY OF THE SHERIFF indorsed thereon with the court within 10 days after
taking the property.
1. Serve a copy of the order together with a copy of the
application, affidavit and bond to the adverse party; SECTION 9. JUDGMENT
2. Take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his The court shall determine who has the right of
custody; possession to and the value of the property and shall
3. Demand delivery of the property if the property is render judgment in the alternative for the delivery to
concealed in a building or enclosure, and if it be not the party entitled to the same, or for its value in case
delivered, cause the building or enclosure to be delivery cannot be made, and also for damages that
broken open and take the property into his may be proven by the parties, with costs.
possession;
4. After taking possession, keep the property in a SECTION 10. JUDGMENT TO INCLUDE RECOV ERY
secure place and shall be responsible for its delivery AGAINST SURETIES
to the party entitled thereto.
Plaintiff who obtains possession of the personal
property by a writ of replevin does not acquire
SECTION 5. RETURN OF THE PROPERTY absolute title thereto, nor does the defendant acquire
In order to recover possession of the personal property such title by re-bonding the property, as they only hold
taken under a writ of replevin, the defendant must post the property subject to the final judgment in the action.
a redelivery bond (also double the value of the A buyer of s uch property also does not acquire title
property as stated in the applicant’s affidavit ) and serve theret o but also holds the property subject to the results
a copy of such bond on the plaintiff within five (5) days of the suit.
from the taking by the officer. Both requirements are

Surety’s liability under the replevin bond should be Where filed: It is exclusively cognizable by a Family
included in t he final judgment to prevent duplicity of Court.
suits or proceedings.
Exception: In criminal actions, where right to support
Provisions of Section 20 of Rule 57 are applicable not arises by reason of c rime and as long as the civil
only to the replevin bond of the plaintiff but also t o the aspect is tried together with it, the RTC and MTC
redelivery bond posted by the defendant for the lifting of having jurisdiction may also issue this remedy.
the writ.
Note: This is the only provisional remedy that does not
Replevin bond: replevin bond is simply intended to require a bond.
indemnify the defendant against loss that he may suffer
by being compelled to surrender t he possession of the SECTION 1. APPLICATION
disputed property pending trial of the action. 1. At the commencement of the action; or
2. At any time before judgment or final order.
Note: A writ of replevin may be served anywhere in the
Philippines.
The application must be verified, stating the grounds
Case: In reversing the RTC ruling and consequently
for the claim and the financial conditions of bot h parties.
dismissing the replevin case for lack of jurisdiction, the
It shall be accompanied by:
CA held: We find that the car plan privilege is a benefit
arising out of employer-employee relationship, Astorga 1. Affidavits;
being district sales manager of SMART. Thus, the 2. Depositions; or
claim for such falls squarely within the original and 3. Other authentic documents in support thereof.
exclusive jurisdiction of the labor arbiters and the
NLRC.” We do not agree. The RTC right fully assumed
Note: Where the right to support is put in issue by the
jurisdiction over the suit and acted well within its
pleading or the fact from which the right is in
discretion in denying Astorga’s motion to dismiss.
controversy or has not been established, the court
SMART’s demand for payment of the market value of
cannot grant support pendent e lite (Francisco v.
the car or, in the alternative, the surrender of the car, is
Zandueta, G.R. No. L-43794, August 9, 1935).
not a labor, but a civil, disput e. It involves the
relationship of debtor and creditor rather than
employee-employer relations. As such, the dispute falls
within the jurisdiction of the regular courts (Smart SECTION 2. COMMENT
Communications, Inc. v. Astorga, G.R. No. 148132,
SECTION 3. HEARING
January 28, 2008).
SECTION 4. ORDER
`
If the application is granted, the court shall issue an
order where it shall fix the amount of money to be
RULE 62 provisionally paid as support. If denied, the principal
S UPPORT P ENDENTE L ITE case shall be tried and decided as early as possible.
Note: Includes “other forms of support”, meaning

Support Pendente Lite medical attendance, housing, clothing, education, etc.
An amount of support provisionally fixed by the court in In determining the amount of support to be awarded,
favor of the person or persons entitled t hereto during such amount should be in proportion to the res ources
the pendency of an action for support. Here the main or means of the giver and the necessities of the
action is for support and s upport pendent lite is the recipient, pursuant to Articles 194, 201 and 202 of the
provisional remedy. Family Code.
Note: Under Section 4 of Rule 39, the judgment in an It is incumbent upon the trial court to base its award of
action for support is immediately executory. support on the evidenc e presented before it. The
evidence must prove t he capacity or res ourc es of both
This provisional remedy is available only in an Action
parents who are jointly obliged to support their children
for Support, or where one of the reliefs sought is
as provided for under Article 195 of the Family Code;
Support for the Applicant (Coquia v. Baltazar, G.R. No.
and the monthly expenses incurred for the sustenance,
L-2942 December 29, 1949).
dwelling, clothing, medical attendance, education and
transportation of the child (Lam v. Chua, G.R. No.
131286, March 18, 2004).

SECTION 5. ENFORCEMENT OF ORDER justice in the manner actions.

prescribed by the court or
Failure to comply with an order granting support
by the law.
pendente lite may warrant:
Must be based on a cause The concept of cause of
1. The issuance of an order of execution against the of action which means that action in an ordinary
non-complying party; and the defendant has violated action does not always fit
2. May likewise make him liable for contempt. the plaintiff’s rights. in a special civil action.
(e.g. Interpleader)
Venue is determined by This dichotomy does not
Note: Support pendente lite i s interlocutory, thus, either the residences of always apply in a special
the same may be modified at any stage of the the parties where the civil action (The venue in
proceedings. The amount fixed in t he order is only action is personal or by a petition for quo
provisional. It can be modified depending on the the location of the property warranto is where the SC
changing conditions affecting the ability of t he obligor to where the action is real. or CA sits).
pay the amount fixed for support. May be filed initially in There are special civil
either t he MTC or the actions which can only be
SECTION 6. SUPPORT IN CRIMINAL CASES
RTC. filed in the MTC (Forcible
Art. 345 RPC, Civil liability of persons guilt y of crimes Entry and Unlawf ul
against chastity – Persons guilty of rape, seduction or Detainer).
abduction shall also be sentenced… (3) In every case
There are also those
to support the offspring.
which cannot be
Abduction may be committed with mere lewd designs, commenced in the MTC
without carnal knowledge; hence, there need not (Certiorari, Prohibition
necessarily be an offspring. and Mandamus).
When filed are Some special civil actions
SECTION 7. RESTITUTION denominated as are initiated by ‘petitions’
‘complaints’
Remedies of party who was erroneously compelled to
give support:
1. Apply for an order for such reimbursement by the

recipient on motion in t he trial court in the same case,
S PECIAL C IVIL ACT IONS UNDER
unless such restitution is already included in the T HE RULES OF C OURT
judgment; or
2. Failing therein, file a separate action for
reimbursement against the person legally obliged to Special Civil Actions Special Civil Actions
give support. Initiated By Initiated By Petitions
Complaints
(DR. CPM QC)
Note: See Comparative Chart on Provisional Remedies (IF FEUD PE)
for more details.
1. Interpleader 1. Declaratory Relief
2. Foreclosure of Real 2. Review of
Estate Mortgage Adjudication of the
S PECIAL C IVIL ACT IONS 3. Forcible Entry and COMELEC / COA
Unlawful Detainer 3. Certiorari
4. Partition 4. Prohibition
A special civil action is governed by rules of ordinary
5. Expropriation 5. Mandamus
civil actions but there are certain rules that are
6. Quo Warranto
applicable only to specific special civil actions.
7. Contempt
`
Ordinary Civil Action Special Civil Action
Governed by ordinary Also governed by
rules. ordinary rules but subject Venue: The venue of special civil actions is governed
to specific rules by the general rules on venue, except as otherwise
prescribed (Rules 62 to indicated in the particular rule for said special civil
71, Revised Rules of action (Ex. Quo Warranto under Sec. 7, Rule 66).
Court).
Thus, actions for certiorari, prohibition and mandamus
Formal demand of one’s Special feat ures not should be commenced in the proper RTC, but the
legal rights in a court of found in ordinary civil same, may, in proper cases, be commenced in the SC

or the CA and a special rule of venue is provided for 2. The Parties to be int erpleaded must make e ffective
quo warranto proceedings. claims;
3. There must be at least two or more conflicting
In the absence of special reasons, the SC will decline claimants with adverse or conflicting interests to a
original jurisdiction in certiorari, prohibition and property in custody or possession of the plaintiff; and
mandamus since it is not a trier of facts and, that is a 4. The subject matter must be one and the same.
function which can better be done by the trial courts.
The same rule applies for quo warranto wherein the SC Note: The peculiar characteristic of an int erpleader is
has concurrent jurisdiction with the RTC. that there is no caus e of action on the part of the
plaintiff but only a threat of a cause of action.
Juri sdiction: Special civil actions that can be filed in or
are within the jurisdiction of inferior courts
Purpose of Remedy: To protect a person not against
1. Interpleader, provided that amount involved is within double liability but against double vexation in respect of
its jurisdiction; one’s liability (Wack Wack Golf v. Won, L-23851, March
2. Ejectment Suits; 26, 1976).
3. Contempt.
(See Chart on Venue and Jurisdiction of Special Civil Who files the petition: A complaint for interpleader is
Actions ) filed by the person against whom the conflicting claims
are made.
When to file the petition: An action in interpleader

RULE 62 should be filed within a reasonable time after a dispute
has arisen without waiting to be sued by either of the
I NT ERPLEADER contending claimants. Otherwise, it may be barred by
laches or undue delay. This is becaus e after judgment
is obtained against the plaintiff by one claimant, he is
SECTION 1. WHEN INTERPLEADER PROPER already liable to the latter (Wack Wack Golf v. Won, L-
23851, March 26, 1976).
Interpleader
Exception: Where the stakeholder acts with
A special civil remedy where a person, who has reasonable diligenc e in view of environmental
property in his possession or an obligation to perform, circumstances, the remedy is not barred (Wack Wack
either wholly or partially, but who claims no interest in Golf v. Won, L-23851, March 26, 1976).
the subject, or whose interest, in whole or in part, is not
disputed by others, goes to court and asks that Court with jurisdiction: If the subject matter of the
conflicting claimants to the property or obligation be action is pers onal property, valued at not more than
required to litigate among thems elves in order to PhP300, 000 outside Metro Manila, and in Metro Manila,
determine finally who is entitled to the same (Alvarez v. at not more than PhP400,000, the MTC has jurisdiction.
Commonwealth, G.R. No. 45315, February 25, 1938).
If the subject matter is real property with an assessed
Interpleader cannot be availed of to resolve t he issue of value at not more than PhP20,000 outside Metro Manila,
breach of undertakings made by defendants which and in Met ro Manila, at not more than PhP50,000, the
issues should be res olved in an ordinary civil action for RTC has jurisdiction (Riano, 2009).
specific performance or other relief (B eltran v. PHHC,
Note: Int erpleader is a special civil action which can be
L-25138, Aug. 28, 1969).
filed at the inferior courts. However, inferior courts
Examples: would not have jurisdiction over an interpleader case for
1. Warehouseman – who has custody of goods claimed the recovery of title to real property or actions for
to be owned by two or more persons. specific performance, annulment or rescission of
2. Lessee – who is confronted with adverse claimants contracts and other actions within the exclusive original
on the rentals due and he is in doubt as to which of jurisdiction of the RTCs (Regalado, p. 775).
them should be the rightful recipient.
3. Debtor – who is confronted by two or more persons SECTION 2. ORDER
who do not present the same interests claiming the
right to collect. The court shall issue an order requiring the conflicting
claimants to interplead. If the interest of justice so
Requisites for interpleader: (NETO) requires, the court may direct in such order that the
subject matter be paid or delivered to the court.
1. The plaintiff claims no int erest in the subject matter or
his claim thereto is not disputed; SECTION 3. SUMMONS

Summons shall be served upon the conflicting Payment of the docket fee s: The person who files the
claimants, together with a copy of the complaint and complaint shall pay the docket and other lawful fees
order. and shall bear the costs and other litigation expenses.
SECTION 4. MOTION TO DISMISS The docket and other lawful fees paid by the party who
filed a complaint under this Rule, as well as the costs
Within the 15 days provided for filing the answer, each and litigation expenses, shall constitute a lien or charge
claimant may file a Motion to Dismiss. upon the s ubject matter of the action, unless the court
Grounds: shall order otherwise.
1. Impropriety of the interpleader action; The court determines only the issue of who has a better
2. The grounds for dismissal under Rule 16. right among the conflicting claimants.
Interpleader Intervention
The period to file the ans wer shall be tolled and if the
motion is denied, the movant may file his answer within An original action. An ancillary action.
the remaining period, but not less than 5 days in any
event, reckoned from the notice of denial.
Commenced by the filing Commenced by a
If t here are no conflicting claims among the defendants, of a complaint. motion to intervene filed
the complaint for interpleader may be dismissed for lack in a pending case.
of cause of action.
Presupposes that Proper in any of these
SECTION 5. ANSWER AND OTHER PLEADINGS plaintiff has no interest four situations: A pers on
Effect when a claimant fails to plead within the time in the subject matter of having (a) Legal interest
fixed: The court may, on motion, declare him in default the action or has interest in the matter in litigation,
and thereaft er render judgment barring him from any therein in whole or in or (b) Int erest in the
claim in respect to the subject matter. part which is not success of either of the
disputed by the other parties, or (c) Interest
The parties in an interpleader action may file parties. against both, or (d) Is so
counterclaims, cross claims, third party complaints and situated as to be
responsive pleadings thereto “as provided by these adversely affected by a
Rules.” The second paragraph ex pressly authorized the distribution or other
additional pleadings and claims enumerated therein, in disposition of property in
the interest of a complete adjudication of the the custody of the court
controversy and its incidents (Arreza v. Diaz, Jr., G.R. or of an officer t hereof
No. 133113, August 30, 2001). (Rule 19, Sec. 1).
Note: A defendant may file a counterclaim for

Defendants are being Defendants are original
interpleader against the plaintiff and a third party also
sued precisely to parties to the pending
claiming the subject-matter of the suit (Wack Wack Golf
interplead them. suits.
v. Won, G.R. No. L-23851, March 26, 1976).
The conflicting claimants, who are co-defendants in the

action, must serve copies of their answers not only on
the plaintiff but also upon their co-defendants since the
controversy actually exists among the co-defendants.
RULE 63
SECTION 6. DETERMINATION D ECLARAT ORY RELIEF AND S IM ILAR
The court, in a complaint for interpleader, shall REM EDIES
determine the rights and obligations of the parties and
adjudicate their several claims. Such rights, obligations
and claims could only be adjudicated if put forward by
the aggrieved party in assertion of his rights (Arreza v. Ordinary Action Declaratory Relief
Diaz, Jr., G.R. No. 133113, August 30, 2001).
Writ of execution is No writ of execution.
SECTION 7. DOCKET AND OTHER LAWFUL FEES,
available.
COSTS AND LITIGATION EXPENSES AS LIENS
There is breach or No breach or violation.

violation of right. 3. There must have been no breach of the documents in

question;
4. The terms of said documents and the validity thereof
Motion to dismiss – Additional ground for are doubtful and require judicial construction;
Rules 16 and 17. Motion to Dismiss - Rule 5. The issue must be ripe for judicial determination, as,
63 Sec. 5 (Court may for example, where all administrative remedies have
refuse to exercise the been exhausted;
power to declare rights 6. Adequate relief is not available t hrough other means
and to construe or other forms of action or proceeding.
instruments where a
decision would not
Actual Controversy
terminat e the uncertainty
or controversy or where One which is definite and concrete, touching the legal
declaration is not relations of parties having adverse legal interests. It
necessary and proper must be a real and substantial controversy admitting of
under the a specific relief through a decree of a conclusive
circumstances). character. It means an existing case or cont roversy that
is appropriate or ripe for determination, not conjectural
or anticipatory.
In Declaratory Relief, the subject matter is a deed, will, Justi ciability: The court must be satisfied that an
contract or ot her written instrument, statute, executive actual controversy or t he “ripening seeds” of one, exists
order or regulation, or ordinance; the issue is the between parties, all of whom are sui juris and before
validity or construction of the subject matter; and the the court, and the declaration sought will be a practical
relief sought is a declaration of the petitioner’s rig hts help in ending the controversy (Feria Volume 2, p.435).
and duties thereunder (Regalado, p. 778).
Requisites of justiciability
The enumeration of the subject matter is EXCLUSIVE.
Henc e, an action not based on any of t he enumerated 1. There must be real parties in interest;
subject matters cannot be the proper subject of 2. Asserting adverse claims; and
declaratory relief. 3. Presenting a ripe issue.
However, even if the subject is one enumerat ed under

the Rules, where the contract or statute is clear in its Note: To be ripe for judicial determination or to
terms and there is no doubt as to its meaning and constitute the “ripening seeds” of a controversy, it must
validity, a petition for declaratory relief is improper. appear that, under the facts of the case, there is a
There would be no need for construction or a threat ened litigation in the immediate future, which
declaration of rights thereunder (Riano, 2009). litigation is imminent and inevitable unless prevented by
the declaratory relief sought (Tolentino v. Board of
SECTION 1. WHO MAY FILE PETITION Accountancy, G.R. No. L-3062, September 28, 1951).
Any person interested under a deed, will, contract, or May a court decision be subject of Petition for
other written instrument, or whose rights are affected by Declaratory Relief? No, because if a party is not
a statute, executive order or regulation, ordinance, or agreeable t o a decision eit her on question of law or of
any other governmental regulation. fact, he may file with the t rial court a motion for
reconsideration or a new t rial in order that the defect
Purpose of declaratory relief: To relieve the litigants may be corrected. The fundamental reason is
of the common law rule that no declaration of rights predicated upon the principle of res judicata which
may be judicially adjudged unless a right has been stamps the mark of finality on a case which has been
violat ed and for the violation of which relief may be fully and definitely litigated in court.
granted. Proceedings considered as similar remedies under
nd
Requisites for declaratory relief (SANDRA) Section 1, 2 par. (RAP)
1. The subject matter of the controversy must be a deed, 1. Reformation of Instrument (Article 1359, NCC);
will, contract or other written instrument, statute, 2. Action to Quiet Title (Article 476, NCC); and
executive order or regulation, or ordinance; 3. Petition for Consolidation of Ownership (Article 1607,
2. There must be an actual justiciable cont roversy or the NCC).
“ripening seeds” of one between p ersons whose
interests are adverse;
These three remedies are considered similar to
declaratory relief because they also res ult in the

adjudication of the legal rights of the litigants, often SECTION 5. COURT ACTION DISCRETIONARY
without the need of execution to carry the judgment into
effect. Court has discretion to refuse to grant declaratory
relief when:
Note: A procedural distinction bet ween the two
remedies is that in actions similar to declaratory relief, 1. The decision will not terminat e the controversy or
uncertainty giving rise to the action; or
the court is bound to render judgment; whereas in
2. The declaration or construction is not necessary and
actions for declaratory relief, the court may refus e to
proper under the circumstances.
exercise the power to declare rights and to construe
instruments.
This provision does not apply in actions falling under
Court with juri sdiction: The action should be brought nd
the 2 paragraph of Sec. 1 (Sec. 5) because in actions
before the appropriate RTC. However, where the action for reformation of instrument, quieting of title and
is one for quieting of title, the jurisdiction will depend consolidation of ownership, the court is bound t o render
upon the assessed value of property because such a decision.
action falls under the classific ation of cas es that in volve
title to, or possession of, real property, or any interest Note: Judgment in declaratory relief is said to stand by
therein (Riano, p. 615). itself and no executory process follows as of course
(Riano p.617).
SECTION 2. PARTIES
SECTION 6. CONVERSION INTO ORDINARY
1. Person (a) who is interested under a deed, will, ACTION
contract or other written instrument; or (b) whose
rights will be affected by a statute, executive order or When conversion proper: If before the final
regulation, ordinance or other government regulation; termination of the case, a breach or violation of the
2. All persons who have or claim any interest which instrument or statute occurs, then the same may be
would be affected by the declaration. converted into an ordinary action.
A declaration shall not, except as otherwise provided in
the Rules, prejudice the rights of persons not parties to
the action. If there has been a breac h of statute before the filing of
the action, the remedy of declaratory relief cannot be
Purpose of Section 2: Failure to join all the necessary availed of.
parties would deprive t he declaration of that final and
pacifying function the action for declaratory relief is The law does not require that there shall be an actual
calculated to s ubserve as they would not be bound by pending case. It is sufficient that there is a breach of the
the declaration that may raise the identical issue. law, an actionable violation to bar a complaint for
declaratory relief (B orja v. Villadolid, G.R. No. L-1897,
Non-joinder of nec essary parties is not a jurisdictional November 28, 1949).
defect but may be a ground for dismissal under Section
5. When an Action for Declaratory Relief will not lie:
(CIT – DPD BACER)
A notary public who is not a party to the contract is not
entitled to file declaratory relief. None of his rights or 1. Action to obtain judicial declaration of citizenship;
duties thereunder need be declared (Tadeo v. Prov. 2. Action to establish illegitimate filiation and actions to
Fiscal of Pangasinan, G.R. No. L-16474, January 31, determine hereditary rights;
1962). 3. Where the terms of the assailed ordinances are not
ambiguous or of doubtful meaning;
4. The subject of the action is a court decision;
SECTION 3. NOTICE ON SOLICITOR GENERAL 5. Action to resolve a political question or issue;
6. Those determinative of the issues rather than a
In any action which involves the validity of a statute,
construction of definite status, rights and relations;
executive order or regul ation, or any other 7. Where the contract or statute on which action is
governmental regulation, the Solicitor General shall be based has been breached;
notified by the party assailing the same and shall be 8. Action is merely to seek advisory opinion from the
entitled to be heard upon such question. court on a moot question;
9. When the petition is based on the happening of a
SECTION 4. LOCAL GOVERNMENT ORDINANCES
contingent event;
If t he action involves the validity of a local government 10. When petitioner is not the real party-in-interest;
ordinance, the corresponding prosecutor of the local 11. Where administrative remedies have not yet
been exhausted.
governmental unit involved shall be notified and heard.
If such ordinance is alleged to be unconstitutional, the
Solicitor General shall also be notified and heard.

A third party complaint is inconceivable when the main Note: Congress enacted R.A. No. 7902 amending
case is one for nothing more than a declaratory relief. In Section 9 of B.P. Blg. 129, effective, March 18, 1995,
a third party complaint, the defendant or third party eliminating such recourse to the S C and trans ferring the
plaintiff is supposed to seek contribution, indemnity, revising power to the CA over all adjudications of the
subrogation or any other relief from the third party Civil Service Commission.
defendant in respect to the claim of the plaintiff against
him (Commissioner of Customs v. Cloribel, G.R. No. L- SECTION 2. MODE OF REVIEW
21036, June 30, 1977).
Court with jurisdiction: This petition should be filed
However, the court can grant such other affirmative exclusively with the Supreme Court.
relief as may be warranted by the evidence if the
complaint is sufficient to make out a case for specific This refers to Rule 65 as an independent civil action
performance or recovery of property with claims for and not as a mode of appeal.
damages and the defendants did not raise such issue in
SECTION 3. TIME TO FILE PETITION
the trial court to challenge the remedy availed of
(Adlawan v. Intermediate Appellate Court, G.R. No. Thirty (30) days from notice of judgment. If motion for
73022, February 9, 1989). reconsideration is denied, the petition must be filed
within the remaining period, but which shall not be less
than 5 days in any event, reckoned from notice of
Compulsory counterclaim based on or arising from the
same transaction, deed, or cont ract on which the denial.
petition is based may be filed and entertained in
Note: Fresh Period Rule is not applicable.
declaratory proceedings because there is nothing in the
nature of Declarat ory Relief that proscribes the filing of
General Rule: Failure to file a motion for
counterclaims and the Rules on Ordinary Civil Action
reconsideration before the issuing forum results in the
apply to Special Civil Action suppletorily (Visayan
Pack ing Corp. v. Reparations Commission, G.R. No. L- dismissal of the petition.
29673, November 12, 1987).
Exceptions:
Where to file 1. To prevent a miscarriage of justice;
2. When the issue involves the principle of social justice
General Rule: The petition for declarat ory relief must or the protection of labor;
be filed with the RTC. 3. The decision or resolution is a nullity;
4. Need for relief is extremely urgent and certiorari is the
Ratio: It is an action incapable of pecuniary estimation. only adequate remedy (ABS-CBN v. COME LEC, G.R.
No. 133486, January 28, 2000).
Exception: If the petition has far-reaching implications
and it raises questions that should be resolved, it may SECTION 4. DOCKET AND OTHER LAWFUL FEES
be treated as one for prohibition or for mandamus,
which the S C or CA may take cognizance (Regalado, p. Upon the filing of the petition, the petitioner shall pay to
771). the clerk of court the docket and ot her lawful fees and
deposit the amount of PhP500.00 for costs.
Note: Where the action is one for quieting of title the
jurisdiction will depend upon the assessed value of the SECTION 5. FORM AND CONTENTS OF PETITION
property (Riano p.615). 1. Verified petition in 18 copies;
2. Aggrieved party/ies as petitioner/s while the
Commission c oncerned and pers on int erested in
RULE 64 sustaining judgment shall be respondents;
3. Findings of fact of the Commission supported by
REVIEWS OF J UDGM ENT S AND substantial evidence shall be final and non-
F INAL O RDERS OR RESOLUT IONS reviewable;
4. The petition shall state the specific material dates
OF T HE COM ELEC AND COA
showing that it was filed on time;
5. It shall be accompanied by a sworn certification
against forum shopping;
SECTION 1. SCOPE 6. There must be proof of service of its copy on the
Commission and adverse party, and of payment of
Review of judgments and final orders or resolutions of docket and lawful fees;
the Commission on Elections and the Commission on 7. State the facts; present the issues; set forth the
Audit. grounds relied upon and brief arguments; pray for
judgment annulling or modifying the questioned
judgment, final order or resolution;

8. A clearly legible duplicat e original or certified true Important Concepts:

copy of the judgment, final order or resolution,
together with certified true copies of such material Quasi-Judicial
Judicial Function
portions of the record and other documents relevant Function
and pertinent thereto.
Power to determine what Action or discretion of
the law is and what the public administrative
Note: The failure of petitioner to comply with any of the legal rights of the parties officers or bodies, which
requirements mentioned in this section shall be a are, and then undertak e are required to
ground for the dismissal of the petition. to determine thes e investigate facts or
questions and adjudicat e ascertain the existence
SECTION 6. ORDER TO COMMENT
upon the rights of the of facts, hold hearings,
If t he Court finds that the petition is sufficient in form parties. and draw conclusions
and substance, it shall order respondents to file their from them as basis for
comments within 10 days from notice thereof. their official action and to
Otherwise, the Court may dismiss the petition outright. exercise discretion of a
judicial nature.
The Court may also dismiss the petition if it was filed (a)
manifestly for delay, or (b) the questions raised are too
unsubstantial to warrant further proceedings.
Without Excess of Grave Abuse of
The order to comment under Section 6, Rule 64 in case Jurisdiction Jurisdiction Discretion
the Supreme Court finds the petition sufficient in form
When the Where the Where the
and substance is equivalent to summons in ordinary
respondent respondent, respondent acts
civil action. However, the defendant who did not file his
does not have being clothed in a capricious,
comment cannot be declared in default.
the legal with the power whimsical,
SECTION 7. COMMENTS OF RESPONDENTS power to to determine arbitrary or
determine the the case, despotic manner
1. Eighteen (18) copies shall contain plain copies of all case. oversteps his in the exercise
documents attached to the original; authority as of his judgment
2. The original must be accompanied by certified true
determined by as to be said to
copies of material portions of the record as referred to
law. be equivalent to
therein together with other supporting papers;
3. No other pleading may be filed by any party unless lack of
required or allowed by the court. jurisdiction.
SECTION 8. EFFECT OF FILING

The abuse of
The filing of a petition for certiorari shall not stay the discretion must
execution of judgment, final order or resolution sought be so patent
to be reviewed, unless the Supreme Court shall direct and gross as to
otherwise upon such terms as it may deem just. amount to an
evasion of
Under this rule, the petitioner may apply for a positive duty or
restraining order or a preliminary injunction from the to a virtual
Supreme Court to stay the execution of judgment or refusal to
final order or resolution sought to be reviewed. perform a duty
enjoined by law,
or to act at all in
The case shall be deemed submitted for decision upon contemplation of
filing of the comments on the petition or other pleadings law, as where
or papers as may be required or allowed or the the power is
expiration of the period to do so. exercised in an
arbitrary and
despotic manner
by reason of
RULE 65 passion or
C ERT IORARI , P ROHIBIT ION , AND personal
M ANDAM US hostility.

SECTION 1. PETITION FOR CERTIORARI whet her such motion is

required or not, the 60
Writ of Certiorari
day period shall be
A writ emanating from a superior court directed against counted from notice of
an inferior court, tribunal, or officer exercising judicial or denial of said motion.
quasi-judicial functions. The purpose of which is to
correct errors of jurisdiction. Does not require a prior Requires, as a general
motion for rule, a prior motion for
Requisites of Certiorari: (CJ-WiNG) reconsideration. reconsideration.
1. There must be a controversy; Stays the judgment Does not stay the
2. Respondent is exercising judicial or quasi-judicial
appealed from judgment or order
functions;
subject of the petition
3. Respondents acted without or in excess of its
jurisdiction or acted with grave abuse of discretion unless enjoined or
amounting to lack of jurisdiction; and restrained.
4. There must be no appeal or other plain, speedy and
adequate remedy. Parties are the original The tribunal, board,
parties officer ex ercising judicial
or quasi judicial
Questions of fact cannot be raised in an original action functions is impleaded
for certiorari. Only established or admitted facts can be as respondent.
considered (Rubio v. Reyes, G. R. No. L-24581, May 27,
1968).
Certiorari is a prerogative writ. It is never demandable In many instances, the Court has treated a petition for
as a matter of right, never issued except in the exercise review on certiorari under Rule 45 as a petition
of judicial discretion. for certiorari under Rule 65, where the subject of the
recourse was one of jurisdiction, or the act complained
Plain, Speedy and Adequate Remedy of was perpetrat ed by a court wit h grave abuse of
One which will promptly relieve the petitioner from the discretion amounting to lack or excess of jurisdiction
injurious effects of the judgment and the acts of the (China Bank ing Corp. v. Asian Construction and
lower court or agency. Development Corp., G.R. No. 158271, April 8, 2008).
Since the issue is jurisdiction, an original action for

Special Civil Action of Certiorari under Rule 65 and certiorari may be directed against an interlocutory
Certiorari under Rule 45; Distinguished order of the lower court prior to an appeal from the
judgment (New Frontier Sugar Corporation v. RTC of
Certiorari under Rule Certiorari under Rule Iloilo, G.R. No. 165001, January 31, 2007).
45 65
A petition for certiorari must be based on jurisdictional
A mode of appeal A special civil action; an grounds because as long as the respondent acted with
original and independent jurisdiction, any error committed by him or it in the
action. exercise thereof will amount nothing than an er ror of
judgment which may be reviewed by or corrected by
Seeks to review final May be directed against appeal (Estrera v. Court of Appeals, G.R. No. 154235-
judgments or final an interlocutory order. 36, August 16, 2006).
orders.
The original action for certiorari is not a substitute for
appeal (Lobite v. Sundiam, L-38278, June 28, 1983).
As a rule raises only Raises questions of
questions of law jurisdiction
Shall be filed within 15 Shall be filed not later Remedies of Appeal and Certiorari not Exclusive
days from notice of than 60 days from the
General Rule: Where the proper remedy is appeal, the
judgment or final order notice of judgment,
appealed from order, or resolution action for certiorari will not be entertained. Certiorari is
not a remedy for errors of judgment. Errors of judgment
sought to be assailed
and in case a motion for are correctible by appeal; errors of jurisdiction are
reviewable by certiorari.
reconsideration or new
trial is timely filed,

Exceptions: E ven when appeal is available, a writ of

certiorari may be allowed: (REPOF – C)
The writ of prohibition will not lie to enjoin acts already
1. When appeal does not constitute a speedy and done. However, as an exception to the rule on
adequate remedy; mootness, courts will decide a question otherwise moot
2. When orders were issued either in excess of or if it is capable of repetition yet evading review (Funa v.
without jurisdiction; Ermita, G.R. No. 184740, February 11, 2010).
3. For certain special considerations as public policy or
public welfare; Prohibition is a preventive remedy. However, to prevent
4. When the order is a patent nullity; the respondent from performing the act sought to be
5. When decision in the certiorari case will avoid future prevented during the pendency of the proceedings for
litigation; the writ, the petitioner should obtain a restraining order
6. When, in criminal actions, the court rejects rebuttal and/or a writ of preliminary injunction (Regalado, 2010).
evidence for the prosecution as, in case of acquittal,
there could be no remedy (Regalado, p. 783). Where the principal relief sought is to invalidate an IRR,
petitioners’ remedy is an ordinary action for its
nullification, an action which properly falls under the
When the remedy by appeal had already been lost due
jurisdiction of the Regional Trial Court (Holy Spirit
to petitioner’s own neglect or error in the choice of
Homeowners Association v. Def ensor, G.R. No. 163980,
remedies, certiorari cannot lie. The two remedies are
August 3, 2006).
mutually exclusive (Meralco v. Court of Appeals, G.R.
No. 88396, July 4, 1990). Acts Fait Accompli (Accomplished facts)
However, after a judgment had been rendered and an General Rule: Prohibition does not ordinarily lie to
appeal perfected, certiorari may prosper where appeal restrain an act which is already a fait accompli.
is not a plain, speedy and adequat e remedy. The two
remedies do not exclude each other (Lansang v. Court Exception: Writ of prohibition will lie to prevent the
of Appeals, G.R. No. 76028, April 6, 1990). unlawful creation of a new province by those in the
corridors of power who could avoid judicial intervention
Where remedies not incompatible, filing of certiorari is and review by merely speedily and stealthily completing
not abandonment of appeal. Appeal is from decision in the commission of such illegality (Tan v. COMELEC,
main case while certiorari is against order denying GR No. 73155, July 11, 1986).
motion for new trial (Lansang v. Court of Appeals,
supra). Note: Prohibition, and not mandamus, is the remedy
where a motion to dismiss is improperly denied
Important requirements: (Enriquez v. Mac araeg, G.R. No. L-2422, September 30,
1949).
1. Verified by the petitioner not by the lawyer;
2. Accompanied by a certified true copy of the judgment Prohibition and Injunction; Distinguished
or duplicate original (Not Photocopy);
3. Certification of non-forum shopping. Prohibition Injunction
Directed against a court, Directed against a party in

SECTION 2. PETITION FOR PROHIBITION tribunal or a person the action.
exercising judicial, quasi-
Writ of Prohibition
judicial or ministerial
A writ issued by a superior court and directed against functions.
an inferior court, corporation, board, officer or other
person whether exercising judicial, quasi-judicial or Based on the ground that It does not involve
the court against whom jurisdiction of the court.
ministerial functions for the purpose of preventing the
the writ is sought had
latter from usurping jurisdiction with which it is not
acted without or in excess
legally vested.
of jurisdiction.
Requisites of Prohibition: (CJ-WiNG)
Always the main action. It may be the main action
1. There must be a controversy; itself or just a provisional
2. Respondent is exercising judicial, quasi-judicial or remedy.
ministerial functions;
3. Respondent acted without or in excess of its
jurisdiction or acted with grave abuse of discretion
amounting to lack of jurisdiction; and SECTION 3. PETITION FOR MANDAMUS
4. There must be no appeal or other plain, speedy and
adequate remedy.

Writ of Mandamus
A writ issued in the name of the State, to an inferior Exceptions:

tribunal, corporation, board or person, commanding the
performance of an act which the law enjoins as a duty 1. If the party is in estoppel; and
2. Pure questions of law are raised.
resulting from an office, trust or station.
Requisites of Mandamus: (CP-MEN)

May mandamus be used to compel a discretionary
1. There must be a clear legal right or duty; duty? No. It is only applicable to a ministerial duty.
2. The act to be performed must be practical - However, it can be used to the extent of requiring the
Within the powers of the respondent to perform such performance of a discretionary duty to act but not to
that if the writ of mandamus was issued, he can require performance of such duty in a particular manner.
comply with it, or else the essence will be defeated;
3. Respondent must be exercising a ministerial Exceptions: Where there has been (1) gross abuse of
duty - A duty which is abs olute and imperative and discretion; (2) manifest injustice; or (3) palpable excess
involves merely its execution; of authority, in which case, the respondent can be
4. The duty or act to be performed must be ordered to act in a particular manner (Kant Wong v.
existing - A correlative right will be denied if not PCGG, G.R. No. 79484, December 7, 1987).
performed by the respondents; and
Discretionary and Ministerial Acts; Distinguished
5. There is no other plain, speedy and adequate
remedy in the ordinary course of law. Preliminary
injunction must be sought. Discretionary Act Ministerial Act
One where public One which an officer or
functionaries, by virtue tribunal performs in a
Grounds for Mandamus
of a power or right, given state of facts, in a
1. When any tribunal, corporation, board, officer or conferred upon them by prescribed manner, in
person unlawfully neglects the performance of an act law can act officially, obedienc e to the
which the law specifically enjoins as a duty resulting under certain mandate of a legal
from an office, trust or station; circumstances, authority, without regard
2. When any tribunal, corporation, board, officer or uncontrolled by the to or the exercise of his
person unlawfully excludes another from the use and judgment or conscience own judgment upon the
enjoyment of a right or office to which the other is of others. propriety or impropriety
entitled. of the act done.
Purpose of Mandamus: To compel the performance,
when refused, of a ministerial duty, this being its main
objective. It does not lie to require anyone to fulfill a Mandamus and Injunction; Distinguished
contractual obligation or to compel a course of conduct,
nor to control or review the exercise of discretion. Mandamus Injunction
Note: Mandamus can be availed of only by the party

who has direct legal interest in the right sought to be Remedial Preventive
enforced. However, if the question is one of public right
and t he object of the mandamus is to proc ure the To set in motion and to To restrain motion or to
performance of a public duty, it is sufficient to show that compel action (Active). enforce inaction
the petitioner is a citizen even if he has no special
interest in the result (Benitez v. Paredes, G.R. No. L- (Conservative).
29865, August 18, 1928).
Motion to dismiss - Rule Additional ground for
Mandamus is available only to compel the doing of an 16 and 17. Motion to Dismiss -
act specifically enjoined by law as a duty (Henares, Jr. Rule 58 Sec. 6.
v. LTFRB, G.R. No. 158290, October 23, 2006).
Mandamus applies as a remedy only where petitioner's

right is founded clearly in law and not when it is doubt ful nd
Mandamus (2 Ground) and Quo Warranto;
(Phil. Coconut Authority v. Primex Coco Products, Inc., Distinguished:
G.R. No. 163088, July 20, 2006). Mandamus is the proper remedy when the respondent
unlawfully excludes the petitioner from an office to
Exhaustion of administrative remedies which the latter is entitled without usurping, intruding
General Rule: Mandamus will not issue when into or unlawfully holding the office.
administrative remedies are still available.

On the other hand, if the respondent claims any right to b. In excess of b. In excess of a. Neglected a
the office and usurps, intrudes into or unlawfully holds it jurisdiction; jurisdiction; ministerial
against the petitioner, quo warranto is the proper or or duty; or
remedy (Feria, p. 494). c. With grave c. With grave b. Excluded
abuse of abuse of another from
Mandamus may be combined with Quo Warranto: discretion discretion a right or
The complaint for mandamus is against the persons amounting to amounting to office.
who exclude the plaintiff from the office in question, lack or lack or
while t he petition for quo warranto is directed against excess of excess of
the person who actually holds the said office (Burguete jurisdiction. jurisdiction.
v. Mayor, G.R. No. L-6538, May 10, 1954). Purpose is to Purpose is to Purpose is for
annul or nullify have respondent to:
Respondents a proceeding. respondent
desist from 1. Do the act
The principal respondent is the judge as a person, not required; and
the court as an entity. However, he is merely a nominal further
2. To pay
or formal party. proceeding.
damages.
The non-inclusion of the person interested in sustaining This remedy is This remedy is This remedy is
the proceedings renders the petition defective (Republic corrective — to preventive and affirmative or
of the Philippines v. Zurbano, G.R. No. L-12064, March correct negative — to positive (if the
31, 1959). usurpation of restrain or performance of
jurisdiction. prevent a duty is
A person not a party to the proceedings in the trial court usurpation of ordered) or it is
or in the CA cannot maintain an action for certiorari in jurisdiction. negative (if a
the SC to have the judgment reviewed (Ramos v. person is
Lampa, G.R. No. 45151, July 24, 1936). ordered to
Acqui si tion of juri sdiction over the person of the desist from
respondent in original actions for Certiorari, excluding
Prohibition, and Mandamus another from a
right or office).
1. If the action is filed with the RTC: Follow the rules
on ordinary civil actions. Hence, jurisdiction is Covers Covers Covers
acquired by the service of summons to the discretionary discretionary ministerial acts.
respondent or by his voluntary appearance in court; acts. and ministerial
2. If the action i s filed with the CA or the SC: The acts.
court acquires jurisdiction over the respondents with
the service on them of its orders indicating its initial
action on the petition or by their voluntary submission
to such jurisdiction. An original action for Certiorari, Prohibition, or
Mandamus, is an independent action and as such:
Certiorari, Prohibition and Mandamus; 1. Does not interrupt the course of the principal action;
Distinguished 2. Does not affect the running of the reglementary
periods involved in the proceedings;
Certiorari Prohibition Mandamus 3. Does not stay the execution of judgment, unless a
temporary restraining order or writ of preliminary
Directed Directed Directed injunction has been issued.
against an against an against an
entity or person entity or person entity or person
exercising Can the Court of Appeals award damages in
exercising exercising
judicial or mandamus proceedings? Yes. The CA in resolving a
judicial, quasi- ministerial
quasi-judicial petition for mandamus is authorized to award civil
judicial or function. damages in the same petition (Vital-Gozon v. Court of
function.
ministerial Appeals, G.R. No. 101428, August 3, 1992).
function.
Entity or person Entity or person Entity or person Note: a writ of certiorari or prohibition cannot be issued
is alleged to is alleged to is alleged to by an RTC against an administrative agency exercising
have acted: have acted: have quasi-judicial functions since the latter is of the same
a. Without a. Without unlawfully: rank as the RTC.
jurisdiction; jurisdiction;

motion for reconsideration or new trial, if one is filed (as

amended by A.M. No. 00-2-03-SC).
However, a writ of prohibition may be issued by the
RTC against administrative agencies exercising General Rule: 60-day Period Non-Extendible: The
administrative functions. petition for certiorari must be filed strictly within 60 days
from notice of judgment or from order denying the
Motion for Reconsideration as pre -requisite motion for reconsideration (as amended by A. M. No.
General Rule: A motion for reconsideration is an
07-7-12-SC).
essential precondition for the filing of a petition for
certiorari, prohibition, or mandamus. It is a plain, Exception: Under exceptional circumstances, and
speedy, and adequate remedy. Its purpose is to give subject to the sound discretion of the Court, said period
the court a quo the opportunity to correct itself. may be extended (Republic v. St. Vincent de Paul
Colleges, Inc., G.R. No. 192908, Aug. 22, 2012).
Purpose: To enable the lower court, in the first
instance, to pass upon and correct its mistakes without Late filing of Petition for Certiorari: For being filed
the intervention of the higher court (Regalado, p. 798). one day late, the Court upheld the dismissal of the
petition. Deviations from the rules cannot be tolerated.
Exceptions:
More importantly, its observance cannot be left to the
1. Where the order is a patent nullity; whims and caprices of the parties (LTS Philippines
2. Where the questions raised in the certiorari Corporation v. Maliwat, G.R. No. 159024, January 14,
proceeding have been duly raised and passed upon 2005).
by the lower court or are the same as those raised
and passed upon in the lower court; It may be filed with:
3. Where there is an urgent necessity for the resolution
1. Court of Appeals, whether or not the same is in aid of
of the question;
its appellate jurisdiction;
4. Where a motion for reconsideration would be useless;
2. Sandiganbayan, whether or not in aid of its appellate
5. Where petitioner is deprived of due process;
jurisdiction;
6. Where, in a criminal case, relief from an order of
3. RTC, if it relates to the acts or omissions of a
arrest is urgent and the granting of such relief by the
municipal t rial court, a corporation, board, officer or
trial court is improbable;
person;
7. Where the issue raised is one purely of law or where
4. If it involves acts or omissions of a quasi-judicial
public interest is involved;
agency, and unless otherwise provided by law or the
8. Where the proceedings in the lower court are a nullity
rules, the petition shall be filed in and cognizable only
for lack of due process;
by the CA;
9. Where the proc eeding was ex parte or in which the
5. In election cases involving an act or omission of
petitioner had no opportunity to object; and
MTC/RTC, it shall be filed exclusively with the
10. Where the subject matter of the action is
COMELE C, in aid of its appellate jurisdiction (As
perishable.
amended by A.M. No. 07-7-12-SC).
Effect of filing a Motion for Reconsideration: If a
motion for rec onsideration is filed, the period shall not Note: Sec. 4, Rule 65 observes the principle of
only be interrupted but anot her 60 days shall be given hierarchy of courts. The conc urrent jurisdiction of the
to the petitioner within which to file the appropriate CA and RTC to issue the writs does not accord litigants
petition for certiorari or prohibition with t he superior
unrestrained freedom of choice of the court to which
court (SC Administrative Circular 00-2-03).
application may be directed.
Where the error is not one of jurisdiction but an error of Following the principle of hierarchy of courts, the
law or fact which is a mistake of judgment, appeal is the petition for certiorari to annul RTC orders with the
remedy. Supreme Court should be dismissed as it should have
Note: Petitioner may not arrogat e to himself the been filed with the Court of Apeals (De los Reyes
determination of whether a motion for reconsideration is v. People of the Philippines, G.R. No. 138297, January
necessary or not. To dispense with the requirement of 27, 2006).
filling a motion for reconsideration, petitioner must show For election cases involving acts or omissions of a
a concrete compelling, and valid reason for doing so municipal or regional trial court, the petition shall be
(Albano, 2010). filed exclusively with the COMELEC (Relampagos v.
COMELEC, G.R. No. 118861, April 27, 1995).
SECTION 4. WHERE AND WHEN PETITION FILED
It is filed not later than 60 days from notice of the

judgment, order or resolution or notice of denial of the

Concept of “in aid of its appellate jurisdiction” The petition shall not interrupt the course of the
principal case unless a temporary restraining or der or a
It is the court’s right to hear an appeal from the lower writ of preliminary injunction has been issued against
court’s judgment on the merits. the public respondent from further proceeding in the
In original actions for certiorari under Rule 65, the case.
findings of fact of the CA are not conclusive or binding The public respondent shall proceed with the principal
upon the SC, unlike the general rule in appeals by case within 10 days from the filing of the petition for
certiorari under Rule 45 (Medran v. Court of Appeals, certiorari with the higher court, abs ent a TRO or
G.R. No. L-1350, March 26, 1949). preliminary injunction, or upon its expiration. Failure of
SECTION 5. RESPONDENTS AND COSTS IN the public respondent to proceed may be a ground for
CERTAIN CASES an administrative charge (A.M. No. 07-7-12-SC).
Who must be joined as respondents In case a petition for certiorari under Rule 65 is
filed, may the court trying the principal case
1. Judge, court, quasi-judicial agency, tribunal, proceed pending the resolution of the said petition?
corporation, board, officer or person who rendered Yes. The petition shall not interrupt the course of the
the judgment (Public Respondent); principal case, unless a temporary restraining order or a
2. Person/s interested in sustaining the proceedings in writ of preliminary injunction has been issued, enjoining
the court (Private Respondent/s). the public respondent from further proceeding with the
case.
The private respondent shall appear and defend the
assailed proceedings and shall bear the costs. The public respondent shall proceed with the principal
case within ten (10) days from the filing of a petition for
General Rule: The public respondents shall not appear certiorari with a higher court or tribunal, absent a
in or file an answer or comment to the petition or any temporary restraining order or a preliminary injunction,
pleading therein. or upon its expiration. Failure of the public respondent
to proceed with the principal case may be a ground for
Public respondent is an indispensable party. an administrative charge (A.M. No. 07-7-12-SC,
December 4, 2007).
Judges and Justices are mere formal parties and need
not file separate comment unless specifically and
expressly directed to do so. SECTION 8. PROCEEDI NGS AFTER COMMENT IS
FILED
Exceptions:
If the petition is not sufficient in form and substance, the
1. Unless otherwis e specifically directed by the court court may dismiss it outright. The c ourt may also
where the petition is pending;
dismiss the petition if it finds the same to be:
2. Where t he actuations of a judge are assailed on
grounds other than legal ones and imputing to the 1. Patently without merit;
judge personal motives, the judge cannot be blamed 2. Prosecuted manifestly for delay; or
if he takes personal interest in trying to disprove the 3. That the questions raised are too unsubstantial to
imputations (Mont alban v., Canonoy, Adm. Cas e No. require consideration.
179-J, March 15, 1971).
In such event, the court may award treble costs

SECTION 6. ORDER TO COMMENT solidarily against petitioner and counsel, in addition to
If the petition is sufficient in form and substance, the administrative sanctions.
court shall order the respondent(s ) to comment within The Court may impose, motu proprio, based on res ipsa
10 days from receipt of a copy of the order. loquitur, other disciplinary sanctions for patently dilatory
and unmeritorious petitions (A.M. No. 07-7-12-SC).
If the petition for certiorari is before the Supreme Court
and the Court of Appeals, the court may require the The court may dismiss the petition after the filing and
comment before giving due course to the petition. consideration of the c omment without holding a hearing
Thereafter, the court may require t he filing of the reply or requiring the submission of memoranda. It is not
and other responsive pleadings as it deems necessary mandatory on court to receive evidence and hear the
and proper. petition.
SECTION 7. EXP EDITING PROCEEDINGS; SECTION 9. S ERVICE AND ENFORCEMENT OF
INJUNCTIVE RELIEF ORDER OR JUDGMENT

A certified copy of the judgment shall be served upon The governing law is the The rules that govern
the court, quasi-judicial agency, tribunal, corporation, election law. are the provisions of
board, officer or person c oncerned. Failure to comply the Rules of Court.
shall be punished as contempt.
Quo Warranto in Quo Warranto in
elective office. appointive office.
RULE 66
The issue is eligibility of The issue is the validity
Q UO WARRANT O the respondent. of the appointment.
The occupant who was

Quo Warranto declared ineligible or
disloyal will be uns eated
Literally means “by what authority”, is a prerogative The court will oust the
proceeding or writ issued by the court to determine the but the petitioner may be
person illegally
right to the use or exercise of an office, position or declared the rightful
appointed and will order
franchise and to oust the person holding or exercising occupant of the office IF
the seating of the
such office, position or franchise if his right is the respondent is
person who was legally
unfounded or if he had forfeited his right to enjoy the disqualified and the
appointed and entitled
privilege. petitioner received the
to the office.
second highest number
Quo Warranto and Mandamus; Distinguished of votes (see Maquiling v.
COMELEC, supra).
Quo Warranto Mandamus
Designed to try the right Does not lie to try The petition for quo
The petition must be
or title to the office, if the disputed titles but only warranto must be filed
right or title to the office to enforce legal filed within 1 year from
within 10 days from
itself is disputed. duties. the petitioner’s ouster
proclamation of the
Brought against the from the office.
Brought against the candidate.
person who is
holder of the office, not
responsible for The action may be filed
necessarily the one who
excluding the petitioner by any registered
excludes the petitioner.
from office. candidate for the same
office, who would be The petitioner must be
entitled to the office IF the person entitled to
Quo Warranto and Election Contest; Distinguished
the respondent is the office and would
Quo Warranto in
Election Contest disqualified and the assume it if the action
Elective Office
petitioner received the succeeds.
Its basis is that the Challenges the right of
second highest number
occupant is disqualified a person to hold office
from holding the office on the ground of of votes (see Maquiling v.
by reason of ineligibility irregularities in the COMELEC, supra).
or disloyalty. conduct of elections for
said office. The petition is brought in The petition is brought
The respondent will be the COME LEC, the RTC in the SC, the CA or
or the MTC as the case the RTC.
ousted, but the petitioner
may be.
may assume the office IF
The successful When the tribunal The court has to
the respondent is
protestant will assume declares the candidate- declare who the
disqualified and the
the office if he had elect as ineligible, he will person entitled to the
petitioner received the
obtained a plurality of be unseated but the office is if he is the
second highest number person occupying the petitioner.
the valid votes.
of votes (see Maquiling v. second place will not be
COMELE C, G.R. No. declared as the one duly
195649, April 16, 2013). elected because the law
shall consider only the
person who, having duly
filed his certificate of
Quo Warranto under Omnibus Election Code and
candidacy, received a
Quo Warranto under Rule 66; Distinguished
plurality of votes.
Quo Warranto under Quo Warranto under
Omnibus Election Code Rule 66

SECTION 1. ACTION BY GOV ERNMENT AGAINST right, the action may be dismissed at any stage (Garcia
INDIVIDUAL v. Perez, L-28184, September 11, 1980).
Against whom may the action be brought: (UFA) By analogy with the provisions of S ection 5, it has been
1. A person who us urps, intrudes into, or unlawfully held that a public utility may bring a quo warranto action
holds or exercises a public office, position or against another public utility which has usurped the
franchise; rights of the former granted under a franchise (Cui v.
2. A public officer who does or suffers an act which, by Cui, G.R. No. 39778, April 9, 1934).
the provision of law, constitutes a ground for the
forfeiture of his office; Classification of Quo Warranto proceedings
3. An association which acts as a corporation within the 1. Mandatory – Brought by the Solicitor General or a
Philippines without being legally incorporated or public prosecutor, when:
without lawful authority so to act. a. Directed by the President;
b. Upon complaint or otherwise he has good reason to
believe that the cases for quo warranto can be
Rule 66 of the 1997 Rules of Civil P rocedure does not established by proof.
apply to quo warranto cases against persons who usurp 2. Di scretionary – Brought by the Solicitor General or a
an offic e in a private corporation (Calleja v. Panday, public prosec utor at the request or upon the relation
G.R. No. 168696, February 28, 2006). of another person, provided there must be:
a. Leave of court;
Actions for quo warranto against corporations with b. Indemnity bond.
regard to franchises and rights granted to them, as well
as their dissolution, covered under the former Rule 66,
now fall under the jurisdiction of the RTC (Securities A Relator is a person at whose request and upon
Regulation Code, Sec. 5.2). whos e relation the Solicitor General or public
prosecut or brings an action for quo warranto wit h the
If t he dispute is as to the counting of votes or on permission of the court under Sections 3 & 4.
matters connected with the conduct of the election, quo
warranto is not the proper remedy but an election
protest (Cesar v. Garrido, G.R. No. 30705, March 25, If a plaintiff’s right to file the complaint is not proven, it
1929). becomes unnecessary for the Court to pass upon the
right of the defendant who has a perfect right to the
undisturbed possession of his office. HOWEVER, if the
SECTION 2. WHEN SOLI CITOR GENERAL OR complaint is brought by the Solicitor General or public
PUBLI C PROS ECUTOR MUST COMMENCE AN prosecut or, the Court may pass upon the defendant’s
ACTION right to office.
SECTION 3. WHEN SOLICITOR GENERAL OR SECTION 6. PARTI ES AND CONTENTS OF

PUBLI C PROS ECUTOR MAY COMMENCE ACTI ON PETITION AGAINST USURPATION
WITH PERMISSION OF COURT
Contents of petition:
SECTION 4. WHEN HEARING HAD ON 1. Name of the person who claims to be entitled thereto,
APPLICATION FOR PERMISSION TO COMMENCE if any;
ACTION 2. Averment of his right to office/position/franchise;
3. Allegation that respondent is unlawfully in possession
SECTION 5. WHEN AN INDIVIDUAL MAY
thereof.
COMMENCE SUCH AN ACTION
Petitioner must show that he is entitled to the office held

Who may commence:
by respondent, not merely that he has a preferential
General Rule:
right to be appointed.
1. Government through Solicitor General;
The person instituting quo warrant o proceeding in his
2. Public prosecutor; or
own behalf, under Section 5, does not have to secure
the intervention of the Solicitor General or the fiscal, nor
Exception: Individual claiming to be entitled to the does he have to obtain prior leave of court (Cui v. Cui,
office or position us urped or unlawfully held or supra).
exercised by another (Section 5). Petitioner must aver
and be able to show that he is entitled to the office in
dispute. Without such averment or evidence of such

Who may be made respondents? All persons who Rights of persons adjudged entitled to the office:
claim to be entitled to the public office, position or
franchise. 1. After taking the oath of office and executing any
official bond required by law, he may take upon
SECTION 7. VENUE himself the execution of the office;
2. Demand from res pondent all the books and papers
The action can be brought in the SC, CA or RTC appertaining to the office to which the judgment
exercising jurisdiction over the territorial area where relates;
respondent or any of the respondents resides. Respondent’s neglect or refusal to comply with the
demand is punishable by contempt.
If commenced by the Solicitor General, it may be filed
with the RTC of Manila, CA or SC. 3. Bring an action for damages against respondent
sustained by him by reason of the usurpation.
Note: This is subject to the principle of hierarchy of It must be commenced within 1 year after the entry of
courts under Sec. 4, Rule 65. the judgment establishing the petitioner’s right to the
office in question.
Rule 66 does not apply to quo warranto cases against
persons who usurp an office in a private corporation. It
only applies to actions of quo warranto against persons
who usurp a public office, position or franchise; public SECTION 11. LIMITATIONS
officers who forfeit their office; and associations which An action against a public officer or employee for his
act as corporations without being legally incorporated ouster from office must be commenced within 1 year
despite the passage of R.A. No. 8799. It is The Interim after the cause of such ouster or the right of the
Rules of Procedure Governing Intra-Corporate petitioner to hold such office or position arose.
Cont roversies Under R.A. No. 8799 which applies to
petitions for quo warranto against persons who usurp
an office in a private corporation. Under the Interim Note: The periods within which the quo warrant o action
Rules, the petition shall be filed in the RTC which has should be brought are a condition precedent to the
jurisdiction over the c orporation, partnership, or existence of a cause of action.
association concerned (Calleja v. Panday, G. R. No.
The one-year period is not interrupt ed by the
168696, February 28, 2006).
prosecution of any administrative remedy as, in quo
warranto proceeding, no one is compelled to resort to
administrative remedies since public interest requires
SECTION 8. P ERIOD FOR PLEADINGS AND that the right to public office should be determined as
PROCEEDINGS MAY BE REDUCED; ACTION GIV EN speedily as possible (Palma-Fernandez v. Dela P az,
PRECEDENCE G.R. No. 78946, April 15, 1988).
The court may reduce the period for filing the pleadings In quo warranto over a public office, the filing of the
in order to secure the most expeditious determination of complaint suspends the running of the one year period
the matters involved therein consistent with the rights of (Mendiola v. Tancino, G.R. No. L-14107, August 31,
the parties. 1960).
SECTION 12. JUDGMENT FOR COSTS

SECTION 9. JUDGMENT WHERE USURPATI ON
FOUND
When the court finds that there is indeed a usurpation,
judgment shall be rendered that the respondent be
RULE 67
ousted and altogether excluded therefrom, and that E XPROPRIAT ION
petitioner or relat or, as the case may be, recover his
costs. Further judgment may be rendered as justice Eminent Domain
requires.
The right and authority of the State, as sovereign, to
take privat e property for public use upon observance of
SECTION 10. RIGHTS OF PERSONS ADJUDGED due process and payment of just compensation
ENTITLED TO P UBLI C OFFICE; DELIVERY OF (Visayan Refining Co. v. Camus, G.R. No. 15870,
BOOKS AND PAPERS; DAMAGES December 3, 1919).
Requisites for the valid exercise of the right (DCP)

1. There must be due process of law;
2. Payment of just compensation; and

3. Taking must be for public use. 1. Order of priority in acquiring lands for socialized
housing; and
Expropriation 2. Resort to expropriation should be made only after
Expropriation is the procedure to be observed in the other modes of acquisition are exhausted (Estate of
exercise of the right of eminent domain. JBL Reyes v. City of Manila, G.R. No. 132431,
February 13, 2004).
Expropriation is proper:
SECTION 1. THE COMPLAINT
1. When the owner refuses to sell;
2. When he agrees to sell but an agreement as to price Contents of verified complaint
cannot be reached.
1. Right and purpose of expropriation;
2. Description of the real or pers onal property sought to
Meaning of “Taking”: be expropriated;
3. All persons owning or claiming to own or occupying
1. The owner is actually deprived or dispossessed of his any part or interest therein must be joined as
property; defendants, showing, so far as practicable, the
2. There is a practical destruction or a material separate interest of each defendant;
impairment of the value of his property; 4. If the title of the property to be expropriated is in the
3. When the owner is deprived of the ordinary use of his name of the Republic of the P hilippines or if the title is
property; or obscure or doubtful, averment to that effect shall be
4. When the owner is deprived of jurisdiction, made in the complaint.
supervision and control of his property. (Republic of
the Philippines v. Sarabia, G.R. No. 157847, August
25, 2005) Where the right of the plaintiff to expropriate is
conferred by law, the complaint does not have to state
with cert ainty the right of expropriation (MRR Co. v.
Meaning of Public Use
Mitchel, G.R. No. L-25488, December 24, 1926).
Public use means public usefulness, utility, or
advantage, or what is productive of the general benefit, It is the actual filing of the complaint for ex propriation
so that any appropriation of private property by the which binds the land, and not mere notice of the intent
State under its right of eminent domain, for purposes of to expropriate (Republic of the Philippines v. Baylosis,
great advantage to the community, is a taking for public G.R. No. L-6191 January 31, 1955).
use (Reyes v. National Housing Authority, G.R. No.
147511, January 20, 2003). All properties can be expropriated except:
Two stages in Expropriation Proceedings 1. Money (Futile; because of just compensation);

2. Chos es in action (Conjectural in nature; validity and
1. Determination of the authority of the plaintiff to its value).
exercise the power of eminent domain and the Note: Property devoted to public use may be
propriety of its exercise in the context of the facts expropriated.
involved in the suit.
2. Determination by the Court of the just compensation Despite filing of the action, owner may still sell. The
for the property sought to be taken (Herrera, p.409). grantee would merely be substituted in his place and
holds the land subject to the results of the action
(Tuas on, Jr. v. De Asis, G.R. Nos. L-11319-20,
Essential requisites for the local government unit to February 29, 1960).
validly exercise eminent domain
1. That there is an ordinance enacted by the local SECTION 2. ENTRY OF PLAI NTIFF UP ON
legislative council authorizing the local chief DEPOSITING V ALUE WITH AUTHORI ZED
executive to exercise the power of eminent domain; GOVERNMENT DEPOSITARY
2. That the power is exercised for public use, purpose,
or welfare or for the benefit of the poor and the Upon filing of the complaint or at anytime thereaft er and
landless; after due notice to the defendant, the plaintiff shall have
3. That there is payment of just compensation; and the right to take or enter upon the possession of the
4. That a valid and definite offer has been previously real property involved if he makes a Preliminary Deposit
made to the owner of the property but said offer was with the authorized government depositary.
not accepted (Municipality of Parañaque v. V.M.
Realty Corporation, G.R. No. 127820, July 20, 1998). Form of deposit: Shall be in money, unless in lieu
thereof the court authorizes the deposit of a certificate
Limitations of the eminent domain powers of the of deposit of a government bank of the Republic of the
local government

Philippines payable on demand to the authorized payment of their damages in case t hey are finally held
government depositary. to have the right to collect such damages in the same
proceedings (Republic of the P hilippines v. Baylosis,
Purpose of preliminary deposit under Section 2 supra).
1. Provide damages if court finds that the plaintiff has no Note: On Nov. 7, 2000, Congress enacted R.A. No.
right to expropriate.
8974, a special law to facilitate the acquisition of right of
2. Advance payment for just compensation, if property is
way, site, or location for national government
finally expropriated (Herrera, p. 400).
infrastructure projects.
The preliminary deposit is only necessary if the plaintiff

desires entry on the land upon its institution of the Section 2
action; otherwise, it could always wait until the order of R.A. No. 8974
expropriation is issued before it ent ers upon the land. Rule 67
(Regalado p.831)
Only when
National
Value of preliminary deposit Government
1. If personal property – Provisionally ascertained and expropriates
fixed by the court. Expropriation in
Application property for
2. If real property – Assessed value in tax return. general
national
government
If it is a local government unit (LGU) which is infrastructure
expropriating the property, only 15% of the fair market projects
value based on the tax declaration is required to be
Government is
deposited. For a required to make
Government is
Further, expropriation is appropriate only when ordered Writ of immediate
required to make
by the local chief executive through an ordinance duly Possession payment to the
an initial deposit
passed, for a just compensation, for public use or for to issue owner upon filing
the benefit of the poor and when t here has been a valid of the complaint
and definite offer which was refused (Sec. 19, LGC).
Equal to the
A local government unit cannot authorize an market value of
expropriation of privat e property through a mere the property as
resolution of the lawmaking body (Beluso v. stated in the tax
Municipalit y of Panay, Capiz, G. R. No. 15397 4, August declaration or the
7, 2006). Equal to current relevant
Amount of assessed value zonal value of the
Requisites for authorizing immediate entry Payment/ of the property BIR, whichever is
Deposit for purposes of higher, and the
1. The filing of a complaint for expropriation sufficient in
taxation value of the
form and substance;
2. The deposit of the amount equivalent to fifteen improvements
percent (15%) of the fair market value of the property and/or structures
to be expropriat ed based on its current tax using
declaration (Bardillon v. Brgy. Masili, Calamba, replacement cost
Laguna, G. R. No. 146886, April 30, 2003). method.
Once the preliminary deposit has been made, the SECTION 3. DEFENSES AND OBJECTIONS
expropriator is entitled to a writ of possession as a
matter of right, and the issuance of said writ becomes Objections
1. If defendant has no objection or defense:
ministerial on the part of the trial court (Biglang-A wa v.
a. He may file and serve a notice of appearance and
Bacalla, G.R. Nos. 139927-36, Nov. 22, 2000).
manifestation to that effect specifically designating
It would be premature to order the withdrawal of the or identifying the property in which he claims to be
deposit before the damages resulting from the owner’s interested;
b. Thereafter, he shall be entitled to notice of all
dispossession of the property shall have been
proceedings.
determined and adjudicated, because this would
2. If defendant has objection to the filing or the
unjustly deprive them of this legal safeguard for the allegations in the complaint or defense to the taking

of his property, he must serve his answer within the

time stated in the summons. Multiple appeals are permitted in expropriation. An
appeal may be taken from the order authorizing
expropriation and, thereaft er, another appeal on the
Contents of the Answer: judgment on the just compensation to be paid. The
significance of this fact is that the reglementary period
1. Designation or identification of the property in which
to appeal shall be 30 days and a record on appeal shall
he claims to have an interest;
be required for each of the permissible appeals
2. Nature and extent of the interest claimed;
(Regalado, 2010).
3. All objections and defens es to the taking of the
property.
Just compens ation shall be determined as of the date
of the taking of the property or the filing of the
Motion to dismiss is not permitted in a complaint for complaint, whichever came first (Sec. 4).
expropriation. Any objection or defense to the taking of
the property of a defendant must be set forth in an Where the filing of t he complaint preceded the plaintiff’s
answer (Masik ip v. City of Pasig, G.R. No. 136349, entry into the property, the just compensation is to be
January 23, 2006). ascertained as of the time of filing of the complaint
No count erclaim, cross-claim or third-party complaint (National Power Corp. v. Dela Cruz, G. R. No. 156093,
shall be alleged or allowed in the ans wer or any February 2, 2007).
subsequent pleading.
Ratio: Expediency. SECTION 5. ASCERTAINMENT OF

A defendant waives all defenses and objections not so COMPENSATION
alleged but the court, in the interest of justice, may Commi ssioners: Not more than 3 competent and
permit amendments to the answer to be made not later disinterested persons to ascert ain and report to the
than ten (10) days from the filing thereof. court the just compensation.
In the determination of just compensation, the Note: Objections to the order of appointment must be
defendant may present evidenc e as to the amount of filed within 10 days from service of the order and shall
compens ation to be paid regardless of whether or not be res olved within 30 days after all commissioners have
he has previously filed his answer or appeared before received copies of the objections.
the court.
SECTION 6. PROCEEDINGS BY COMMISSIONERS
Can the defendant be declared in default? No.
Failure to file an ans wer would result to the court’s Different from trial by commissioner (Rule 32, RC)
judgment on the right to expropriate without prejudice to because the latter’s appointment is merely discretionary.
the right to present evidence on the just compensation
Note: The appointment of commissioners is
and to share in the distribution of the award.
mandatory and cannot be dispensed with. findings of
SECTION 4. ORDER OF EXPROPRIATION the commissioners may be disregarded and the court
may substitute its own estimate of the value but the
It is the order declaring that the plaintiff has lawful right latter may only do so with valid reason and based on
to take the property. evidence gathered (Meralco v. Pineda, G. R. No. L-
59791, February 13, 1992). It is a substantive right of
It is issued when:
the parties, the absence of which amounts to denial of
1. Objections or defenses against the right of plaintiff to due process.
expropriate are overruled; or
2. No party appears to defend the case. Duty of the commissioners
1. Unless the parties consent to the contrary,

Note: After the rendition of such an order, the plaintiff Commissioners shall view and examine the property
shall not be permitted to dismiss or discontinue the sought to be expropriat ed and its surroundings, and
proceeding except on such terms as the court deems may measure the same;
2. Assess the consequential damages to the property
just and equitable.
not taken and deduct such damages from the
The final order sustaining the right to expropriate the consequential benefits derived by the owner; and
property may be appealed by any party aggrieved. 3. Report to the court its findings as to the just
However, the appeal shall not prevent the court from compens ation of the property sought to be
expropriated.
determining the just compensation to be paid.

Just Compensation Findings of t he Commissioners may be disregarded

and the Court may substitute its own estimate of the
Just compensation is equivalent to the fair market value value but the latter may only do so for a valid reason
of the property at the time of its taking or filing of and based on t he evidence gathered (Meralco v.
complaint whichever comes first. It is the fair and full Pineda, supra).
equivalent for the loss sustained by the defendant.
SECTION 8. ACTION UPON COMMISSIONERS’
REPORT
The measure is not the taker’s gain but the owner’s loss. Actions available to the court
The word “just” is used to convey the idea that the
equivalent to be rendered for the property to be taken 1. After hearing, accept the report and render judgment
shall be real, substantial, full and ample (Regalado, in accordance therewith;
p.822). 2. Recommit the same to commissioners for further
report of facts;
Formula for determination of just compensation 3. Set aside the report and appoint new commissioners;
or
4. Accept the report in part and reject it in part.
JC means Just Compensation
SECTION 9. UNCERTAIN OWNERSHIP;
FMV means Fair Market Value
CONFLICTING CLAIMS
CD means Consequential Damages
The trial court may decide conflicting claims of
CB means Consequential Benefits ownership in the same case. There is no need for an
independent action since the person entitled thereto will
be adjudged in the same proceeding.
JC = FMV + CD – CB
If CB is MORE than CD then, If the ownership of the property taken is uncertain, or
JC = FMV there are conflicting claims to any part thereof, the court
may order any sum/s awarded as compensation for the
In no case shall the consequential benefits exceed the property to be paid t o the court for the benefit of the
consequential damages assessed, or the owner be person adjudged to be entitled thereto.
deprived of the actual value of his property so taken
(Sec. 6). The issue of ownership should be litigated in the
expropriation court. The court hearing the expropriation
Sentimental value is not computed. case is empowered to entert ain the conflicting claims of
ownership of the condemned property and adjudge the
The assessed value is only prima facie evidenc e of the
right ful owner thereof, in the same expropriation case
actual value of the property if the assessment is based
(Heirs of Mario Pacres v. Heirs of Cecilia Ygoña, G. R.
on the sworn statement of the owner (Republic of the
Philippines v. Urtula, G.R. No. L-22061, January 31, No. 174719, May 5, 2010).
1968). SECTION 10. RIGHTS OF PLAINTIFF AFTER
JUDGMENT AND PAYMENT
A judgment should provide for the payment of legal
interest as a matter of law from the time the When will the right of the plaintiff to enter the
Government takes over the land until it pays the owner property sought to be appropriated or right to retain
thereof (Regalado p.842). it should he have taken immediate posse ssion
thereof accrue?
SECTION 7. REPORT BY COMMISSIONERS AND
1. Upon filing of complaint, serving notice to
JUDGMENT THEREUPON
defendant and after depositing the assessed value of
Report of commissioners property for taxation purposes with an authorized
government depositary (Sec. 2);
1. It must be filed with the court within 60 days from 2. Upon payment by the plaintiff to the defendant
notice of their appointment, which time may be of the compensation fixed by the judgment, with legal
extended in the discretion of the court. interest thereon from the taking of possession of the
2. It shall not be effectual until the court shall have property; or
accepted their report and rendered judgment in 3. After tender to the defendant of the amount so
accordance with their recommendations. fixed and payment of the costs.
3. Interested parties may file their objections to the
report within 10 days from notice thereof. Title if expropriation is vested

1. If personal property, upon payment of just propriety of the exercise in the context of the facts
compensation (Sec. 10); involved;
2. If real property, upon payment of just
compensation and registration (Sec. 13).
A final order sustaining the right to expropriate is
appealable, but the appeal does not prevent the c ourt
Reason: The government cannot keep the property from determining the just compensation to be paid.
and dishonor the judgment
2. Determination of just compensation.
SECTION 11. ENTRY NOT DELAYED BY APP EAL;
EFFECT OF REVERSAL
In the event the judgment of expropriation is reve rsed
A final order sustaining the right to expropriat e the by the appellate court and the case is remanded to
property may be appealed by any party aggrieved the lower court with the mandat e to determine the
thereby (Sec.4, par.2). damages caused to the landowner, such landowner
has the option of proving such damages either in the
An appeal does not delay the right of the plaintiff to same expropriation case or in a separate action
enter upon the property of the defendant and instituted for that purpose, as the judgment denying
appropriate the same for public use. the right of expropriation is not res judicata on the
What is the effect if the order of condemnation was issue of damages arising from such illegal
reversed? The owner shall repossess the property with expropriation (Republic of the Philippines v. Baylosis,
the right to be indemnified for all damages sustained supra).
due to the taking. The nonpayment of the expropriating authority does
SECTION 12. COSTS, BY WHOM PAID not entitle the private landowners to recover
possession of their expropriated lots. (Reyes, et al. v.
All costs shall be paid by the plaintiff. National Housing Authorit y, G.R. No. 147511,
January 20, 2003).
Except:
However, in Republic of the Philippines v. Lim, G. R.
1. Cost of rival claimants litigating their claims; or
No. 161656, June 29, 2005, the Court held that in
2. Appeal is taken by the owner of the property and the
cases where the government failed to pay just
judgment is affirmed, in which event the costs of the
appeal will be paid by the owner. compens ation within 5 years from the finality of
judgment in the expropriation proceeding, the owner
shall have the right to recover possession of his
Fees of commissioners shall be taxed as part of the property.
costs of proceedings.
SECTION 13. RECORDING JUDGMENT, AND ITS

EFFECT RULE 68
The judgment shall state: F ORECLOSURE OF REAL E ST AT E
1. The particular property or interest therein
expropriated; M ORT GAGE
2. Nature of the public use or purpos e for which it
is expropriated. Foreclosure of Mortgage
In case of real estate, a certified copy of such judgment A proceeding in a court of justice conducted according
shall be recorded in the registry of deeds of the place in to legal forms by which the mortgagee or his
which the property is situated. successors or one who has by law succeeded t o the
rights and liabilities of the mortgagee undert akes to
Effect: The title to the real estate so described for such dispose of, to ban, to cut-off the legal and equitable
public use or purpose shall be vested in the plaintiff. claims of lien holders or of the mortgagors or those who
have succeeded t o the rights and liabilities of the
SECTION 14. POW ER OF GUARDIAN IN S UCH mortgagor.
PROCEEDINGS
Stages in Expropriation Judicial Foreclosure Extrajudicial

1. Determination of the authority of the plaintiff to Foreclosure
exercise the power of eminent domain and the
Requires court No court intervention

Judicial Foreclosure Extrajudicial Contents of the complaint: (DN – DOS)

Foreclosure 1. The date and due ex ecution of the mortgage; its
assignments, if any;
intervention necessary 2. The names and residences of the mort gagor and the
mortgagee;
There is only an equity Right of redemption 3. A description of the mortgaged property;
of redemption exists 4. 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
Governed by Rule 68 Governed by Act 3135 thereon; and
5. The names and residences of all pers ons having or
There could be a No Deficiency Judgment claiming an interest in the property subordinate in
Deficiency Judgment because there is no right to that of the holder of the mort gage, all of whom
judicial proceeding but shall be made defendants in the action.
recovery of deficiency is
allowed Effect if the junior encumbrancer is not impleaded:
a. His equity of redemption is not affected or barred by
Recovery of deficiency Recovery of deficiency is the judgment of the court because he is merely a
can be done by mere through an independent necessary party not an indispensable party (Sunlife
Insuranc e v. Diez, G.R. No. 29027, October 25,
motion action
1928);
b. The remedy of the senior encumbrancer is to file an
independent proceeding to foreclos e the right to
SECTION 1. COMPLAI NT IN ACTION FOR
redeem by requiring the junior encumbrancer to pay
FORECLOSURE the amount stated in the order of execution or to
A mortgagee may bring a personal action for the redeem the property at a specified time.
amount due, instead of a foreclosure suit, in which case,
There is no provision prohibiting the joinder of a first
he will be deemed to have waived his right to proceed
mortgagee in a complaint filed by the second
against the property in a foreclosure proc eeding mortgagee for the same purpos e. In such a situation,
(Movido v. RFC, G.R. No. L-11990, May 29, 1959). the second mortgagee has to wait until after the
debtor’s obligation to the first mortgagee has been fully
settled and the excess of the proceeds of the sale, if
An unregistered real estate mortgage may be any, will be given to the second mortgagee (Alpha
foreclosed (Mobil-Oil Phil. Inc v. Tiocares, GR No. L- Insurance v. Reyes, G.R. No. L-26274, July 31, 1981).
26371, September 30, 1969).
If the first mortgagee is not joined as party, he may file
a complaint in intervention. Moreover, even without this
intervention, his rights are protected inasmuch as the
The cause of action in a foreclosure suit is generally the mortgaged property remains subject to lien (BPI v. De
non-payment of the mortgage loan, but it may be on Coster G.R. No. 23181, March 16, 1925).
other grounds which under the contract warrant the
foreclosure, such as the violation of some of the other
SECTION 2. JUDGMENT ON FORECLOS URE FOR
conditions therein (Regalado p.851).
PAYMENT OR SALE
Defendants in judicial foreclosure
1. The persons obliged to pay the mortgage debt; Judgment on foreclosure

2. The persons who own, occupy or control the The judgment of the court ordering the debtor t o pay
mortgaged premises or any part thereof; within 90-120 days from the entry of judgment after
3. The transferee or grantee of the property; ascertaining the amount due to the plaintiff.
4. The second mortgagee or junior enc umbrancers or
any person claiming a right or interest in the property The judgment of foreclosure, being a final adjudication
subordinate to the mortgage sought to be foreclosed of the issues involved therein, is appealable (Regalado
(To foreclose their equity of redemption); but if the p.853).
action is by the junior encumbrancer, the first
mortgagee MAY also be joined as defendant; and The period for payment by the mortgagor is a
5. The mortgagor even if not the owner of the mandatory directive and constitutes a substantive right
mortgaged property should be included to satisfy the of the mortgagor. It cannot be omitted in judicial
deficiency judgment (Herrera, p. 434). foreclosure nor can the parties by agreement change
the procedure outlined in this Rule (Regalado, 2010).

SECTION 3. SALE OF MORTGAGED PROP ERTY; Governed by Rule 68. Governed by Sections
EFFECT 29-31 of Rule 39.
Foreclosure sale: When the defendant fails to pay the

amount of the judgment within the period specified In Judicial Foreclosure:
therein, the court, upon motion, shall order the property General Rule: No right of redemption; only equity of
to be sold in the manner and under the provisions of
redemption
Rule 39 and other regulations governing sales of real
estate under execution. Except: Those grant ed by banks or banking institutions
as provided by the General Banking Act (Government
The order confirming foreclosure sale is a final Service Insurance S ystem v. The CFI of Iloilo, G. R. No.
disposition wit h respect to the issue of the regularity 45322, July 5, 1989).
and validity of such sale and may likewis e be
Henc e, if mortgagee is a bank, the mortgagor may
challenged on appeal (Regalado p.853).
exercise a right of redemption and this rule applies
even if the foreclosure is judicial in accordance with
If the foreclos ure sale does not push throu gh as Rule 68 of the Rules of Court (Riano, p. 703).
scheduled, there is a need for the re -publication and
In extrajudicial foreclosure:
reposting of the notice thereof (Metrobank v. Nik k o
Resources Int’l Corp. et. al., GR No. 178479, October General Rule: Mortgagor has the right to redeem the
23, 2009). property.
Equity of Redemption Period: Within one year from the registration of the
deed of sale.
The right of the defendant mortgagor to extinguish the
mortgage and retain ownership of the property by Except: S ec. 47 of the General Banking Act provides
paying the secured debt within the 90 to 120 days that in case of extrajudicial foreclosure, notwithstanding
period after the entry of judgment or even after the Act 3135, juridical pers ons shall have the right to
foreclosure sale but prior to its confirmation. redeem the property until, but not after, the registration
of the certificat e of foreclosure sale with the applicable
Equity of Redemption and Right of Redemption; Register of Deeds which in no case shall be more than
Distinguished three months after foreclosure, whichever is earlier.
Equity of Redemption Right of Redemption Note: the pendency of an action stops the running of
the right of redemption. said right continues after
Right of the defendant Right of the debtor, his perfection of an appeal until the decision of the appeal
mortgagor to extinguish successor in interest or (Consolidated B ank and Trust Corp. v. Intermediate
the mortgage and any judicial creditor or Appellate Court, G.R. No. L-73976, May 29, 1987).
retain owners hip of the judgment creditor of said
property by paying the debtor or any person Order of confirmation: Before the order of
debt w/in 90 -120 days having a lien on the confirmation, even aft er the expiration of the period of
after the entry of property subsequent to equity, the debtor can still pay his debt.
judgment or even after the mortgage or deed of Effect of confirmation: operates to divest the title out
the foreclosure sale but trust under which the of the former owner and vest it in the purchaser.
prior to confirmation. property is sold to
redeem the property w/in Mortgagor does not have the right to a notice of sale
1 year from the after failure to pay debt because:
registration of the 1. Said notice is not litigable; and
Sheriff’s certificate of 2. Issuance is ministerial.
foreclosure sale.
However, the mortgagor is entitled to a notice of
Period is 90 – 120 days Period is 1 year from date hearing of the confirmation of the sale. Otherwis e, the
after entry of judgment of registration of order is void.
or even after certificate of sale.
foreclosure sale but Due process requires that said notice be given so that
prior to confirmation. the mortgagor:
1. Can resist the motion; and

2. Be informed that his right to redeem is cut-off

(Tiglao v. Botones, G.R. No. L-3619, October 29, Judgment of Deficiency Judgment
1951). Foreclosure
Note: The Order of Confirmation is appealable.
Remedy if mortgagor refuse s to vacate the property: Action Quasi in Rem. Action in Personam.
To ask for a writ of possession.
The issuance of a writ of possession in a foreclosure Instance s where court cannot render deficiency
proceeding is not an execution of judgment wit hin the judgment
purview of Section 6 of Rule 39 of the Rules of Court
but is merely a ministerial and complement ary duty of 1. Recto Law (par. 3, Art. 1484 of the NCC);
the court to put an end to the litigation which the court 2. When the mortgagor is a non-resident and is
can undertake even after the lapse of five years, not found in the Philippines;
provided the statute of limitations and the rights of third 3. When the mortgagor dies, the mortgagee may
persons have not intervened in the meantime. file his claim with the probate court (Sec. 7, Rule 86);
4. If mortgagor is a third person but not solidarily
liable with the debtor;
SECTION 4. DISPOSITION OF PROCEEDS OF SALE 5. In case of a mortgage debt due from the estate
1. The amount realized from the foreclosure sale, less of a deceased mortgagor and the mortgage creditor
the costs of the sale is paid to the person foreclosing; availed of the third remedy which is to rely upon his
2. When there is balance or residue, after paying the mortgage alone and foreclosing the same within the
mortgage debt, the same shall be paid to junior statute of limitations (Sec. 7, Rule 86).
encumbrancers in the order of their priority, as
ascertained by the court;
3. If there are no junior encumbrancers, the residue Deficiency not executed before the deat h of mortgage
goes to the mortgagor or his authorized agent, or any debtor may be filed as a claim against the estate of the
other person entitled to it. deceased (Reyes v. Rosenstock , G.R. No. 23718,
August 28, 1925).
SECTION 5. HOW SALE TO PROCEED IN CAS E The law gives the mortgagee the right to claim for the
THE DEBT IS NOT ALL DUE deficiency resulting from the price obtained in the sale
of the property at public auction and the outstanding
If the debt is not all due, as soon as sufficient portion of obligation at the time of the foreclosure
the property has been sold to pay the amount due and proceedings. This rule is based on the principle that the
the costs, the sale shall terminate; and afterwards, as mortgage is only a security and not a s atisfaction of the
often as more becomes due for principal or int erest and mortgagor’s entire obligation (Suico Rattan & Buri
other valid charges, the court, on motion, may order Interiors, Inc. v. Court of Appeals, G.R. No. 1 38145,
more to be sold June 15, 2006).
But if the property cannot be sold in portions, there shall SECTION 7. REGISTRATION
be one single sale, and the entire debt and costs shall
be paid, and where rebate is proper, rebate shall be
made. When title acquired: The buyer acquires title upon
finality of the confirmation of sale.
SECTION 6. DEFICIENCY JUDGMENT
The certificate of sale cannot be registered without the
Deficiency judgment final order confirming the sale.
Judgment rendered by the court holding defendant Provi sional remedies available to mortgagee in
liable for any unpaid balance due to the mortgagee if case of foreclosure:
the proceeds from the foreclosure sale do not satisfy 1. Preliminary attachment of properties of the
the entire debt. debtor not covered by the mortgage; and
2. Receivership of mortgaged property.
The deficiency judgment can be the subject of appeal.
If the balanc e is all due at the time of the rendition of SECTION 8. APPLICABILITY OF OTHER
the judgment, the execution may issue immediately.
PROVISIONS
Otherwise, the plaintiff shall be entitled to execution at

such time as the balance remaining becomes due
under the terms of the original contract, which time shall
be stated in the judgment.
Nature of partition: The partition of property may be

made voluntarily (by agreement) or compulsorily under
RULE 69 the Rules. E ven if the parties had resort ed to judicial
P ART IT ION partition, they may still make an amicable partition of
the property (Secs. 2 and 12).
Partition
Judicial partition of personal property: An action for
The process of dividing and assigning property owned
partition and accounting under Rule 69 is in the nature
in common among the various co-owners thereof in
of an action quasi in rem. Such an action is essentially
proportion to their respective interests in said property.
for the purpose of affecting the defendant’s interest in a
Partition may be: specific property and not to render a judgment against
him (Valmonte v. Court of Appeals, G.R. No. 108538,
1. Judicial - Procedure is under Rule 69. Jan. 22, 1996).
2. Extrajudicial - No court intervention required.
Two phases of partition and accounting suit
SECTION 1. COMPLAI NT IN ACTION FOR
PARTITION OF REAL ESTATE 1. Existence of co-ownership;
2. Accounting (how to actually partition the
Contents of a complaint: property).
1. Nature and extent of his title;
2. Adequate description of the real estate of which
partition is demanded; and In a complaint for partition, t he plaintiff seeks, first, a
3. Join as defendants all other persons interested in the declaration that he is a co-owner of the subject
property. properties; and second, the convey ance of his lawful
shares (Abalos v. Bucal, G. R. No. 156224, February
Parties 19, 2008).
All co-owners are indispensable parties.
Note: A judgment declaring the existence of co-
Creditors or assignees of co-owners may intervene and ownership is immediately appealable. This is one of the
object to a partition effected without their concurrence. instances when the rules allow multiple appeals.
But they cannot impugn a partition already executed,
An action for partition implies that the property is still
Unless: owned in common. Considering that the heirs had
1. There has been fraud; or already executed a deed of extrajudicial settlement and
2. In case it was made notwithstanding a formal waived their shares in favor of respondent, the
opposition presented to prevent it. properties are no longer under a state of co-ownership;
there is nothing more to be partitioned, as ownership
had already been merged in one person (Mangahas v.
However, this right to intervene is not absolute and Brobio, G. R. No. 183852, October 20, 2010).
intervenor must show a legitimat e and proper int erest in
the subject property (De Borja v. Jugo, G.R. No. L- Where filed: An action for partition should be filed in
45297, July 16, 1937). the RTC of the province where the property or part
thereof is situated. If several distinct parcels of land are
Non-inclusion of a co-owner situated in different provinces, venue may be laid in the
1. Before judgment – Not a ground for motion to RTC of any of said provinces (Pancho, et al. v.
dismiss; remedy is to file a motion to include the party. Villanueva, et al., G.R. No. L-8604, July 25, 1956).
2. After judgment – Judgment is void because
SECTION 2. ORDER FOR PARTITION, AND
co-owners are indispensable parties.
PARTITION BY AGREEMENT THEREUNDER
When partition is proper: When after trial, the court

When can partition be made
finds that the plaintiff has right to the property subject to
General Rule: It can be made anytime and the right to partition. A fter the order of partition, the parties may
demand partition is imprescriptible. make the partition by proper instruments of convey ance
Provided: (1) the court confirmed the partition and (2)
Exception: If a co-owner asserts adverse title to the all parties agreed thereto.
property in which case the period of prescription runs
from such time of assertion of the adverse title. A final order decreeing partition and accounting may be
appealed by any party aggrieved thereby.

Mode of appeal: Record on Appeal.

Report of commissioners
An action for partition admits multiple appeals. There 1. The interested parties may object to the report within
are actually three stages in the action, each of which 10 days from notice;
could be the subject of appeal, to wit: 2. It is not binding until the court has accepted it and
rendered judgment thereon.
1. The order determining the propriety of the partition;
2. The judgment as to the fruits and income of the
property; and SECTION 7. ACTION OF THE COURT UP ON
3. The judgment of partition (Riano, p.596 ). COMMISSIONERS’ REPORT
SECTION 8. ACCOUNTI NG FOR RENT AND

A judgment directing an accounting is appealable PROFITS IN ACTION FOR PARTITION
regardless of whether the accounting is the principal
relief sought or a mere incident, and becomes final and A party shall recover from another his just share of
executory wit hin the reglementary period (Miranda v. rents and profits received by such other party from the
Court of Appeals, G.R. No. L-33007, June 18, 1976). real estate in question.
SECTION 9. POWER OF GUARDI AN IN SUCH

SECTION 3. COMMISSIONERS TO MAKE PROCEEDINGS
PARTITION WHEN PARTIES FAIL TO AGREE
SECTION 10. COSTS AND EXP ENSES TO BE
If the parties are unable to agree upon the partition, the TAXED AND COLLECTED
court shall appoint not more than three (3) competent
and disinterested persons as commissioners to make SECTION 11. THE JUDGMENT AND ITS EFFECT;
the partition, commanding them to set off to the plaintiff COPY TO BE RECORDED IN REGISTRY OF DEEDS
and to each party in int erest such part and proportion of
Contents of Effect of
the property as the court shall direct. Judgment
Judgment Judgment
SECTION 4. OATH AND DUTI ES OF
The judgment
COMMISSIONERS
shall state
The appointment of commissioners is mandatory unless definitely, by
there is an extrajudicial partition between the parties. metes and To vest in each
they have the power to effect the partition but not to bounds and party to the
If actual
inquire into questions of ownership or possession. adequate action in
partition of
description, the severalty the
property is
particular portion of the
made:
portion of the estate assigned
SECTION 5. ASSIGNMENT OR SALE OF REAL
estate assigned to him.
ESTATE BY COMMISSIONERS
to each party.
Assignment of Real Property to one of the parties is
made if the real estate or a portion thereof cannot be If the whole To vest in the
The judgment
divided without prejudice to the interests of the parties . property is party making
shall state the
assigned to the payment
fact of such
Requisites of assignment: one of the the whole of
rd payment and
1. Assignment is in favor of one of the parties not to 3 parties upon the real estate
persons; the assignment
his paying to free from any
2. Payment to the other parties; of the real
the others the interest on the
3. Amount to be paid is based on the amounts which the estate to the
sum or sums part of the
commissioners deem equitable; and party making
ordered by the other parties to
4. Other interested parties do not ask the court that the the payment.
court: the action.
property be sold instead.
The judgment To vest the real
Note: The public sale of t he property is mandatory if shall state the estate in the
one of the parties interested asks that the property be If the property name of the purchaser or
sold instead of being assigned to one of the parties. is sold and the purchaser or purchasers
sale is purchasers and making the
SECTION 6. REPORT OF COMMISSIONERS; confirmed by
PROCEEDINGS NOT BINDING UNTIL CONFIRMED a definite payment/s, free
the court: description of from the claims
the parcels of of any of the
real estate sold parties to the

to each action. brought within

purchaser. 1 year, RTC
has jurisdiction.
Judgment of partition is without prejudice to the rights of Nature of proceedings in accion interdictal:
rd
3 persons. Ejectment cases are summary proc eedings intended to
provide an expeditious means of prot ecting actual
The commissioners appointed by the court have the
possession or right to possession of property.
power and duty only to effect the partition of the
property. They have no power to inquire into the Reason for the rule: The owners of property have no
question of ownership or right to the possession of the authority to use force and violence to eject alleged
property (Araullo v. Araullo , G.R. No. 1432, March 30, usurpers who were in prior physical possession of it.
1904). They must file the appropriate action in court and
should not take the law in their own hands.
SECTION 12. NEITHER PARAMOUNT RIGHTS NOR
AMICABLE PARTITION AFFECTED BY THIS RULE Note: The Rule on Summary Procedure applies only in
cases filed before the MTC.
SECTION 13. PARTITION OF P ERS ONAL
PROPERTY When the decision of the MTC is appealed to the RTC,
the applicable rules are those of the latter court
These rules shall also apply to partitions involving
(Ref ugia v. Court of Appeals, G.R. No. 118284, July 5,
estates composed of personal property or both of real
1996).
and personal property.
SECTION 1. WHO MAY INSTITUTE PROCEEDINGS
RULE 70 AND WHEN:
F ORCIBLE E NT RY AND UNLAWFUL 1. Forcible entry: A person deprived of

D ET AINER possession of any land or building by force,
intimidation, threat, strategy or stealth (FISTS);
2. Unlawful detainer:
`Kinds of Action for Recovery of Possession a. Lessor, vendor, vendee or other person against
Accion Accion Accion whom possession of any land or building is
Interdictal Publiciana Reinvindicatoria unlawfully withheld;
(Ejectment) b. Legal repres entatives or assigns of any such
Summary A plenary An action for the lessor, vendor, vendee, or other person against
action for the action for the recovery of whom possession of any land or building is
recovery of recovery of the ownership, which unlawfully withheld.
physical real right of necessarily
possession possession includes the
Against whom may action be maintained:
where the when the recovery of
dispossession dispossession possession. 1. The action of forcible entry and unlawful detainer may
has not lasted has lasted for be maintained only against one in possession at the
for more than more than one commencement of the action;
one year. year. 2. Tenant with right of possession may bring action
against another tenant;
All cases of RTC has jurisdiction if the value of 3. Vendor may bring action for ejectment against
forcible entry the property exceeds PhP20,000 vendee upon failure to pay the installments;
and unlawful outside Metro Manila; exceeds 4. Forcible ent ry and unlawful detainer lie even against
detainer PhP50,000 within Metro Manila. the very owner of property.
irrespective of 5. The action may be maintained against government
the amount of officials or agents acting in behalf of the government
damages or MTC has jurisdiction if t he value of even if the government is not made a party to the
unpaid rentals the property does not exceed the action. However, if in addition to the reco very of
sought to be possession, the plaintiff also seeks the recovery of
above amounts.
recovered damages or rentals which would thereby result in
should be financial liability to the government, the action cannot
brought to the be maintained under the rule of non-suability of the
State without its consent (Tumbaga v. Vas quez, et al.,
MTC.
G.R. No. L-8719, July 17, 1956).
However, if not

Note: Amount of rents and damages claimed does not Cordillera Caraballo Mission, Inc., G.R. No. 155343,
affect the jurisdiction of the municipal court because September 2, 2005).
they are only incidental or accessory to the main action
(Lao Seng Hian v. Lopez, G.R. No. L-1950, May 16, 2. Unlawful Detainer
1949). a. From the date of the last demand to vacate in case
of non-payment of rent or non-compliance with t he
conditions of the lease.
But if only rents or damages are claimed in an ordinary
action, the action is personal and the amount claimed
determines whet her it falls within the jurisdiction of RTC Exception: When the subsequent demands were
or MTC. merely in t he nature of reminders of t he original
demand, in whic h case the one-year period is
counted from the first demand (Desbarats v.
From what date is the one (1) - year period counted?
Laureano, G.R. No. L-21875, Sept. 27, 1966).
1. Forcible Entry – It is counted from the date of
the entry or taking of possession by use of force,
intimidation, threat, strategy, or stealth. b. From the date of the notice to quit, in case of a tacit
renewal of the lease (tacita rec onduccion), as when
with the acquiescence of the lessor, the lessee
Note: In the case of Vda. De Prieto v. Reyes (G.R. continues enjoying the thing leas ed for fifteen days,
No. 21470, June 23, 1965), the Supreme Court as provided in Article 1670, NCC.
acknowledged t he difference between an entry
secured by force or violence and one obtained by
stealth. The owner or possessor of the land c ould not c. From the date of the revocation of the permit in
be expected to enforce his right to its possession case of occupancy on mere tolerance or under a
against the illegal occupant and sue the latter before temporary permit.
learning of the clandestine intrusion. And to deprive
the lawful possessor of the benefit of the summary Where defendant’s ent ry upon the land was with
action under Rule 70 simply because the stealthy plaintiff’s tolerance right from the date and fact of entry,
intruder manages to conceal the trespass for more unlawful detainer proceedings may be instituted within
than a year would be to reward clandestine one year from the demand on him to vacate as there is
usurpation even if it is unlawful. The one year period an implied promise on his part to vacate upon demand
in such case should be counted from the demand to (Yu v. De Lara, G. R. No. L-10684, November 30, 1962).
vacate upon learning of the ent ry by stealth (Feria, p.
619).
Forcible Entry Unlawful Detainer
(Detentacion) (Desahucio)
In order to c onstitute force that would justify a forcible
entry case, the trespasser does not have to institute a Possession of the land Possession is inceptively
state of war. The act of going to the property and by the defendant is lawful but it becomes
excluding the lawful possessor therefrom necessarily unlawful from the illegal by reason of the
implies the exertion of force over the property which beginning as he termination of his right to
is all that is necessary and sufficient to show that the acquires possession by the possession of the
action is based on the provisions of Section 1, Rule Force, Intimidation, property under his
70 of the Rules of Court (Bunyi v. Factor, G. R. No. Threat, Strategy or contract with the plaintiff.
172547, June 30, 2009). Stealth.
No previous demand for Demand is jurisdictional

Mandatory allegations for the municipal trial court to the defendant to vac ate if the ground is non-
acquire jurisdiction over forcible entry. First, the the premises is payment of rentals or
plaintiff must allege his prior physical possession of necessary. failure to comply with
the property. Second, he must also allege that he lease contract.
was deprived of his possession by any of the means
provided for in Section 1, Rule 70 of the Rules of The plaintiff must prove The plaintiff need not
Court, namely, force, intimidation, threat, strategy, that he was in prior have been in prior
and stealth. If the alleged dispossession did not occur physical possession of physical possession.
by any of these means, the proper recourse is to file the premises until he
not an action for forcible entry but a plenary action to was deprived thereof by
recover possession (Benguet Corporation v.

Forcible Entry Unlawful Detainer comply with the demand to pay or comply with the
(Detentacion) (Desahucio) conditions of the leas e and to vacate within fifteen (15)
days in case of land or five (5) days in case of buildings
(Herrera, p.541).
the defendant.
Mere failure to pay rent does not ipso facto make
unlawful the tenant’s possession. It is the demand to
vacate and refusal to vac ate which makes unlawful the
withholding of possession (Canaynay v. Sarmiento, G.R.
No. L-1246, August 27, 1947).
The 1 year period is Period is counted from
generally counted from the date of last demand A demand is a pre-requisite to an action for unlawful
the date of actual entry or last letter of demand. detainer when the action is “for failure to pay rent due
on the land. or to comply with the conditions of his lease”, and not
where the action is to terminate the lease because of
the expiration of its term (Co Tiamco v. Diaz, G.R. No.
While it is true that the only issue in forcible ent ry or
L-7, January 22, 1946).
unlawful detainer action is the physical possession of
the leased property, that is, possession de facto — not The accept ance of rentals in arrears does not constitute
possession de jure, yet the court may go beyond that if waiver of default in payment of rentals (Clutario v. Court
only to prove the nature of possession. The court may of Appeals, G.R. No. 76656, December 11, 1992).
receive evidence upon the question of title solely for the
purpose of determining the character and extent of The term vacate need not be stated if there are other
possession and damages for the detention (Consing v. terms definitively implying that the tenant should vacate
Jamandre, G.R. No. L-27674, May 12, 1975). (Golden Gat e Realt y Corp. v. Intermediate Appellate
Court, GR No. 74289, July 31, 1987).
However, in La Campana v. Court of Appeals (G.R. No.

E ven when the property is idle or unguarded, an action L-88246, June 4, 1993), the court ruled that the rule in
for forcible entry may still prosper. While prior Golden Gate will not apply IF the term of the demand is
possession is admittedly an indispensable requirement, ambiguous in nature.
it is evident from the principle that possession can be
acquired not only by material occupation but also by the There can only be a cause of action if after failure to
fact that a thing is subject to the action of one’s will or pay the rents due, a demand to pay was made and
by the proper acts and legal formalities established for there was refusal on the part of the lessee. If the lessee
acquiring rights. Possession can also be acquired by pays as demanded, there is no cause of action. If he
juridical acts and one need not have actual or physical refuses, the cause of action accrues, in which case, a
occupation of every square inch of the property at all demand to pay and vacate must again be made as a
times to be considered in possession of it (Nunez v. SL jurisdictional requirement (Desbarats v. Laureano,
Teas Phoenix Solutions Inc., G.R. No. 180542, April12, supra.).
2010). Lessee not permitted to deny the lessor’ s title: The
SECTION 2. LESSOR TO P ROCEED AGAINST fact of lease having been admitted by the private
LESSEE ONLY AFTER DEMAND respondent as well as the expiration of the term thereof,
there can be no question that the issue of ownership is
The action shall be commenced only aft er demand and foreign to the action. Indeed, it matters not that private
the lessee fails to comply therewith after: respondent was already an occupant of the leased
premises when he executed and signed the contract of
1. Fifteen (15) days in the case of lands; or lease, because the basis of the ejectment suit is the
2. Five (5) days in the case of buildings. very contract of lease (Tiu v. Court of Appeals, G.R. No.
L-32626, January 28, 1971).
Demand contemplated under this section is Two options, when based in contract of lease
jurisdictional. It is a two-fold demand:
1. Specific performance – Demand referred to is
1. To pay and vacate; or to pay rent or to comply with the condition of lease
2. To comply with the conditions of the lease and vacate.
violated.
2. Resci ssion – Demand must be for lessee to
Once there is default on the part of the lessee by failure pay rent or to comply with the conditions of the lease
to pay or to comply wit h the conditions of the lease, the and to vacate. (CETUS Development, Inc. v. Court of
Appeals, G. R. Nos. 77648-52, August 7, 1989)
action may be filed by the lessor after the lessee fails to

How is demand made: 1. Preliminary conference held not later than 30 days
after the last answer is filed.
1. Personally; 2. If the plaintiff fails to appear, the complaint shall be
2. Service of written notice of such demand upon the dismissed and defendant shall be entitled to
person found in the premises; counterclaim and all cross-claims shall be dismissed.
3. Posting it at the premises if no person is found 3. If defendant fails to appear, the plaintiff shall be
thereon (Viray v. Court of Appeals, G.R. No. 81015, entitled to judgment.
July 4, 1991); 4. Paragraphs 2 and 3 shall not apply if one of the t wo
4. Registered mail (Co Keng Kian v. Court of Appeals, or more defendants sued under a common cause of
G.R. No. 75676, Aug. 29, 1990). action and who had pleaded a common defens e shall
appear in the preliminary conference.
Prior demand in unlawful detainer not required:
SECTION 9. RECORD OF P RELIMINARY
1. Where the purpose of the action is to terminate
CONFERENCE
the lease by reason of expiry of its term;
2. Where the purpos e of the suit is not for The Court shall issue an order stating the matters taken
ejectment but for the enforcement of the terms of the up in the preliminary conference within five (5) days
contract; or after the termination thereof, including but not limited to:
3. When the defendant is not a tenant but mere
intruder. 1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
SECTION 3. SUMMARY PROCEDURE parties;
3. Whether, on the basis of the pleadings and the
The rule on summary procedure shall apply E XCEP T in
stipulations and admission made by the parties,
cases covered by the agricultural tenancy laws or when judgment may be rendered without the need of
the law otherwise expressly provides. further proceedings, in which event the judgment
shall be rendered within thirty (30) days from
SECTION 4. PLEADINGS ALLOWED
issuance of the order;
1. Complaint; 4. A clear specification of material facts which remain
2. Compulsory counterclaim; converted; and
3. Cross claim; and 5. Such other matters intended to expedite the
4. Answers thereto. disposition of the case.
Note: All pleadings shall be verified. SECTION 10. SUBMISSION OF AFFI DAVITS AND
POSITIONS PAPERS
SECTION 5. ACTION ON COMPLAINT
It is filed within 10 days from receipt of the order stating
Dismiss case outright if any ground for dismissal of civil the matters taken up in the preliminary conference.
action is apparent therein or issue summons if no
ground for dismissal is found SECTION 11. PERIOD FOR RENDITION OF
JUDGMENT
SECTION 6. ANSWER
1. Within 30 days aft er receipt of affidavit and position
1. Filed within 10 days from service of summons. papers or expiration of the period for filing the same.
2. Answer to counterclaims or cross-claims shall be 2. Court may order that certain matters be clarified
served and filed within 10 days from service of the before judgment can be rendered.
answer in which they are pleaded.
In such case, it may require submission of affidavits or

SECTION 7. EFFECT OF FAILURE TO ANSWER evidence within 10 days from receipt of said order, and
render judgment within 15 days after receipt.
Should the defendant fail to answer the complaint within
the given period, the court, motu proprio or on motion of SECTION 12. REFERRAL FOR CONCILIATION
the plaintiff, shall render judgment as may be warranted
by the facts alleged in the complaint and limited to what
is prayed for therein. SECTION 13. PROHIBIT ED PLEADINGS AND
MOTIONS
SECTION 8. PRELIMINARY CONFERENCE; 1. Motion to dismiss the complaint;

APPEARANCE OF PARTIES 2. Motion for bill of particulars;

3. Motion for new trial, or for reconsideration of a premises upon demand by the owner (P eran v. CFI of
judgment, or for reopening of trial; Sorsogon, G.R. No. 57259, October 13, 1983).
4. Petition for relief from judgment;
5. Motion for Extension of time to file pleadings, Questions to be re solved in an action for forcible
affidavits or any other paper; entry are:
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition 1. Who had actual possession over the real
against any interlocutory order issued by the court; property?
8. Motion to Declare the defendant in default; 2. Was the possessor ousted therefrom within one
9. Dilatory motions for postponement; year from the filing of the complaint by force,
10. Reply; intimidation, threat, strategy or stealth?
11. Third party complaints; and 3. Does the plaintiff ask for the restoration of his
12. Interventions. possession? (Dizon v. Concina, G.R. No. L-23756,
December 27, 1969).
Note: The motion prohibited by Section 13, par. (g) is

that which seeks reconsideration of the judgment Are third persons bound by a judgment in an
rendered by the courts after trial on the merits of the ejectment case?
case. the decision dismissing the petitioner’s ejectment General Rule: Yes, provided his possession can be
case for lack of jurisdiction was not an adjudication on traced from the title of the defendant (E.g. Sublessee).
the merits. Review thereof could be sought by the
petitioner through her motion for reconsideration and Exceptions:
this motion, which is not pro forma, had the effect of 1. If the property was acquired before the action;
suspending the running of the period to appeal (Joven v. 2. If the property is covered by a Torrens Title and the
Court of Appeals, G.R. No. 80739, Aug. 20, 1992). certificate does not state that the property is subject
to a pending action and he bought the same in good
SECTION 14. AFFIDAVITS faith.
SECTION 15. PRELIMINARY INJUNCTION
The judgment binds and may be executed against sub-
Plaintiff may ask for a writ of preliminary mandatory
lessees who have not been impleaded since their right
injunction within 5 days from filing of the complaint and
to stay is only subsidiary to that of the lessees. Once
the same shall be decided within 30 days from the filing
the right of the latter disappears, they have nothing to
thereof.
stand on, unless they claim an understanding or
SECTION 16. RES OLVING DEFENS E OF relation with the owner.
OWNERSHIP
Judgment for ejectment cannot be enforced against a
Where t he defendant raises the defense of ownership, co-owner who was not made a party to the action
the court may address such only to the extent (Cruzcosa v. Concepcion, G.R. No. L-11146, April 22,
necessary to determine the rightful possessor of the 1957).
property. Any determination as to owners hip shall be
SECTION 17. JUDGMENT
provi sional and shall not bind any separate action
meant to address the issue of such ownership. The court can award damages in ejectment cases
provided the damages refer only to:
1. The fair and reasonable value of the use and

The issue of ownership shall be resolved only to
enjoyment of the property or the rent arising from the
determine the issue of possession: Provided, the
loss of possession;
defendant raises the issue of ownership in the 2. Rent in arrears;
pleadings and t he question of possession cannot be 3. Liquidated damages when they form part of the
resolved without deciding t he issue of ownership contract (Azcuna Jr. v. Court of Appeals, G.R. No.
(Section 33(2), Batas Pambansa Blg. 129). 116665, March 20, 1996); and
4. Costs (Sec. 1, Rule 70).
Is a formal contract a prerequisite in unlawful In forcible entry or unlawful detainer cases, the only
detainer? No. The existence of a formal cont ract is damage that can be recovered is the fair rental value or
NOT necessary in unlawful detainer. E ven if there is no the reasonable compensation for the use and
formal cont ract between the parties, there can still be occupation of the leased property (Dumo v. Espinas,
an unlawful detainer because implied contracts are G.R. No. 141962, January 25, 2006).
covered by ejectment proceedings. Possession by
tolerance creates an implied promise to vacate the
Note: Attorney’s fees cannot be considered damages Exception: When the following concur:
(De Laureano v. Adil, G.R. No. L-43345, July 29, 1976).
1. The defendant perfects his appeal;
See, however, Riano, who opines that the court may 2. He files sufficient supersedeas bond to pay the rents,
also award attorney’s fees and costs. damages and costs accruing down to the time of
judgment appealed from; and
Against whom judgment is binding: The judgment is 3. He deposits with the appellate court the amount of
binding against the parties and all persons claiming rent due from time to time under the cont ract or, in
under them: the absence of a contract, the reasonable value of
the use and occupation of the premises on or before
th
1. Trespassers, squatters or agents of the defendant the 10 day of each succeeding month or period.
fraudulently occupying the property to frustrate the
judgment;
2. Guests or other occupants of the premises with the In forcible entry, the amount of the supersedeas bond
permission of the defendant; and the amounts to be periodically deposited shall be
3. Transferees pendente lite; the reasonable value of t he use and occupancy of the
4. Sublessees; premises as determined by the court.
5. Members of the family, relatives and other privies of
the defendant (Herrera, pp. 592-593).
In unlawful detainer, the amount of the bond and

SECTION 18. JUDGMENT CONCLUSIVE ONLY ON periodic deposit of rentals shall be that stated in the
POSSESSION; NOT CONCLUSIVE IN ACTIONS lease contract (Regalado, p. 885).
INVOLVING TITLE OR OWNERSHIP
Where supersedeas bond not required:
Unlawful detainer and forcible ent ry suits under Rule 70
of the Rules of Court are designed to summarily restore 1. Where the monetary award in the judgment of the
inferior court has been deposited with the court;
physical possession of a piece of land or building to one
2. Where the judgment of the lower court did not make
who has been illegally or forcibly deprived thereof,
findings with respect to any amount in arrears,
without prejudice to t he settlement of the parties’ damages or costs against the defendant.
opposing claims of juridical possession in appropriate
proceedings (Salting v. Velez, G. R. No. 181930,
January 10, 2011). Ejectment suits are not suspended or barred by other
actions (Wilson Auto Supply Corp. v. CA, G.R. No.
The adjudication is, however, merely provisional and 97637, April 10, 1992) such as the following: (QC –
would not bar or prejudice an action between the same SARAWAI)
parties involving title to the property. The sole issue for
resolution in an unlawful detainer case is physical or 1. Quieting of title;
material possession of the property involved, 2. Consignation of rentals;
independent of any claim of ownership by any of the 3. Specific Performance with damages;
parties. Where the issue of ownership is raised by any 4. Accion publiciana;
of the parties, the courts may pass upon the same in 5. Reformation of instrument;
6. Accion reinvindicatoria;
order to determine who has the right to possess the
7. Writ of possession case;
property (Esmaquel v. Sordevilla, G. R. No. 152423,
8. Annulment of sale, or title, or document; annulment of
December 15, 2010). deed of sale with assumption of mortgage and/or to
The rules of res judicata and conclusiveness of declare the same an equitable mort gage; annulment
of sale with damages; and
judgment apply in ejectment suits, but subject to the
9. Injunction (Enumeration from Feria, p.615).
qualification that the judgment therein is conclusive only
with respect to the issue of possession of the premises
and not with respect to ownership; it is conclusive with An ejectment case is a real action, which is not
respect to the right of possession under and by virtue of extinguished by the death of a party (Cañiza v. Court of
a contract the existence of which has been proved in Appeals, G.R. No. 110427 February 24, 1997).
said ejectment suit (Regalado, 2010).
SECTION 20. PRELIMINARY MANDATORY
SECTION 19. IMMEDIAT E EX ECUTION OF INJUNCTION IN CASE OF APPEAL
JUDGMENT; HOW TO STAY THE SAME
The RTC may issue a writ of preliminary mandatory
General Rule: Judgment of the MTC against the injunction on motion of plaintiff within 10 days from the
defendant in ejectment proceedings is immediat ely perfection of the appeal.
executory.

SECTION 21. IMMEDIATE EXECUTION ON APPEAL contumacious refusal to comply with court orders (In
TO COURT OF APPEALS OR SUPREME COURT the Matter to Declare In Contempt Of Court Hon.
Simeon Datumanong, G.R. No. 150274, August 4,
The judgment of the RTC against the defendant shall 2006).
be immediat ely executory, without prejudice to a further
appeal that may be taken therefrom. Its existence is essential to the preservation of order in
judicial proceedings and to the enforcem ent of
Note: It is only the ex ecution of the MTC’s judgment judgments, orders, and mandates of the courts, and,
pending appeal with the RTC whic h may be stayed consequently, to the due administration of justice.
pursuant to Sec. 19. The judgment of the RTC is
immediately executory notwithstanding the appeal. The exercise of the power to punish for contempt has a
dual aspect. Primarily, the proper punishment of the
guilty party for his disrespect to the courts. Secondarily,
On appeal the appellate court may stay the writ should
his compulsory performanc e of some act or duty
circumstances require. E ven though RTC judgments in
required of him by the court and which he refuses to
ejectment cases are immediately executory, a
preliminary injunction on the writ of execution is still perform.
allowed (B enedicto v. Court of Appeals, G.R. No. Kinds of Contempt
157604, October 19, 2005).
A. According to nature:
Execution pending appeal 1. Criminal contempt – conduct directed against the
authority and dignity of the court or a judge acting
Rule 70 (Sec. 21) Rule 39 (Sec. 2) judicially; it is obstructing the administration of
justice which tends to bring the court into disrepute
Does not require the Requires good reas ons
or disrespect.
showing of good and is subject to the
2. Civil contempt – the failure to do something
reasons as it is a matter discretion of the court. ordered to be done by a court or a judge for t he
of right. benefit of the opposing party therein and is
therefore, an offense against the party in whose
behalf the violated order was made.
It is mandatory for t he RTC to order execution of the
appealed judgment upon failure of defendant to make
the monthly deposit of current rentals (Dehesa v. Criminal Contempt Civil Contempt
Macalalag, G.R. No. L-29096, February 23, 1978).
Punitive in nature Remedial in nature
Prior notice of judgment is required for immediate
execution (Dy v. Court of Appeals, G. R. No. 93756, Purpose is to preserve Purpose is to provide a
March 22, 1991). the court’s authority and remedy for an injured
to punish for suitor and to coerce
disobedience of its compliance with an
RULE 71 orders order; for the
C ONT EM PT preservation of the rights
of private persons
Intent is necessary Intent is not necessary

Contempt of Court
Instituted by the
A disobedience to the court by acting in opposition to its aggrieved party or his
authority, justice, and dignity. It signifies not only a State is the real successor, or someone
willful disregard or disobedience of the court’s orders prosecutor who has a pecuniary
but also conduct tending to bring the authority of the interest in the right to be
court and the administration of law into disreput e or, in protected
some manner, to impede the due administration of
justice (Siy v. NLRC, G.R. No. 158971, August 25, Proof required is proof Proof required is more
2005). beyond reasonable than mere
doubt preponderance of
Purpose and nature of contempt power: The power
to declare a person in contempt of court and in dealing evidence
with him accordingly is an inherent power lodged in
courts of justice, to be used as a means to protect and If judgment is for
If accused is acquitted,
preserve the dignity of the c ourt, the solemnity of the respondent, there can be
there can be no appeal
proceedings therein, and the administrations of justice an appeal
from callous misbehavior, offensive personalities, and
Unfounded accusations or allegations or words tending

to embarrass the court or to bring it into disrepute have
B. According to the manner of commission no place in a pleading (Riano, p. 740).
1. Direct contempt- act committed in the presence of
or so near the court or judge as to obstruct or Note: The court may summarily adjudge one in direct
interrupt the proceedings before the same; contempt. No formal proceeding is required ( Riano, p.
2. Indirect contempt-one not committed in the 741).
presence of the court. It is an act done at a
distance which tends to belittle, degrade, obstruct Punishment for direct contempt: A fine not
or embarrass the court and justice. exceeding P2000 or imprisonment not exceeding 10
days, or both, if it be a RTC or a c ourt of equivalent
rank, or by a fine not exceeding P200 or imprisonment
Direct Contempt Indirect Contempt not exceeding 1 day, or both, if it be a lower court.
Committed in the Not committed within the
SECTION 2. REMEDY THEREFROM
presence of or so near a presence of the court.
court. In direct contempt, the pers on adjudged may not appeal
therefrom, his remedy is a petition for certiorari or
Summary in nature. There is charge and prohibition directed against the court which adjudged
hearing. him.
The execution of the judgment shall be suspended

Punishment: If Punishment: If
pending resolution of the petition for certiorari or
committed against: committed against:
prohibition, provided such person files a bond fixed by
RTC – fine not RTC – fine not the court conditioned upon his performance of the
exceeding PhP 2,000 or exceeding PhP30,000 or judgment should the petition be decided against him.
imprisonment not imprisonment not
SECTION 3. INDI RECT CONTEMPT TO BE
exceeding 10 days or exceeding 6 months or
PUNISHED AFTER CHARGE AND HEARING
both. both.
Specific acts constituting indirect contempt: (MAD-
MTC – fine not
FAIR-Counsel)
exceeding PhP 5,000 or
MTC – fine not imprisonment not 1. Misbehavior of an officer of a court in the
exceeding PhP200 or exceeding 1 month or performance of his official duties or in his official
imprisonment not both. transactions;
exceeding 1 day or both. 2. Any abuse or any unlawful interference w/ the
proceedings not constituting direct contempt;
Remedy is certiorari or Remedy is appeal. 3. Disobedience or resistance to a lawful writ, process,
prohibition. order, or judgment or any unaut horized intrusion to
any real property after being ejected;
Otherwise known as Otherwise known as 4. Failure to obey a subpoena duly served;
5. Assuming to be an attorney or an officer of the court
Contempt in facie curiae. constructive contempt.
w/o authority;
6. Rescue, or attempted rescue, of a person or property
in the custody of an officer;
SECTION 1. DI RECT CONTEMPT PUNIS HED 7. Any improper conduct tending to degrade the
SUMMARILY administration of justice;
8. The failure by counsel to inform the court of the
Grounds for direct contempt: death of his client.
In cases of disobedience of or resistance to lawful writ,
Any of the following acts: (DORM-W) process, order or judgments, the following must be
present:
1. Disrespect toward the court;
2. Offensive personalities toward others; 1. Order must be specific;
3. Refusal to be sworn or to answer as witness or 2. Order must be lawful; and
to subscribe an affidavit or deposition when lawfully 3. Disobedience should be willful.
required to do so;
4. Misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings; and A person cannot be punished for alleged disobedience
5. When the counsel willfully and deliberat ely of an order of the court, such as a writ of execution
engages in forum shopping. directing the sheriff to place the plaintiff in possession
of the property held by said person. Said writ is

addressed to the sheriff and not the plaintiff as it is the 3. To be heard by himself or counsel (Regalado v. Go,
sheriff who must perform his duty (Lipat a v. Tut aan, et G.R. No. 167988, February 6, 2007).
al., G.R. No. L-16643, September 29, 1983).
Note: There are only two (2) ways a person can be
Where, by virtue of a judgment or order of a competent charged with indirect contempt, namely: a) through a
court, a litigant has been placed in possession of real verified petition; and b) by order or formal charge
initiated by the court motu propio
property, the reentry of the adverse party who was
evicted therefrom constitutes contempt and there is no
SECTION 5. WHERE CHARGE TO BE FILED
lime limit in which reentry constitutes contempt ( Medina
v. Garces, G.R. No. L-25923, July 15, 1980). 1. If c ommitted against a Regional Trial Court or a
court of equivalent or higher rank, or against an
If the court has jurisdiction when it rendered judgment, officer appointed by it, the charge may be filed with
the same cannot be disobeyed however erroneous it such court.
may be. 2. If committed against a lower court, the charge
may be filed with the Regional Trial Court of the place
Both in direct and indirect contempt, the execution of
in which t he lower court is sitting; but the proceedings
the judgment may be suspended, provided a BOND is
may also be instituted in such lower court subject to
filed in an amount fixed by the court and conditioned appeal to the Regional Trial Court.
that he will abide by and perform the judgment should 3. If the act was committed against persons or
the petition/appeal be decided against him (S ections 2 entities exercising quasi -judicial functions, the charge
and 11). shall be filed in the Regional Trial Court of the place
wherein the contempt was committed (En banc
Note: In special judgments under Rule 39 Section 11,
Resolution, SC, July 21, 1998).
the person required by the judgment to obey the same
may be punished for contempt if he disobeys.
General Rule: Proceeding for indirect contempt shall
No contempt however lies in judgments for money be filed and tried by the court against which the
(Section 9) and judgments for specific act (Section 10) contumacious conduct was committed.
under Rule 39.
Exceptions:
SECTION 4. HOW PROCEEDINGS COMMENCED
1. If committed against a lower court, it may be tried by
Two modes of commencing a proceeding for the RTC; and
indirect contempt: 2. If committed against the SC, it may cause it to be
investigated by the prosecutor and filed with the RTC
1. An order or other formal charge by the court against (Regalado, p. 898).
which the contempt has been committed requiring the
respondent to show cause why he should not be
punished for contempt (motu proprio); and SECTION 6. HEARING; RELEASE ON BAIL
2. A petition charging indirect contempt with supporting
particulars and certified true copies of the necessary If the hearing is not ordered to be had forthwith, the
documents and papers (independent action). respondent may be released from custody upon filing a
bond, in an amount fixed by the court, for his
The first proc edure applies only when the indirect appearance at the hearing of the charge.
contempt is committed against a court or judge
possessed and clothed with contempt powers. SECTION 7. PUNISHMENT FOR I NDIRECT
CONTEMPT
The second mode applies if the contemptuous act was
committed not against a court or a judicial officer with The penalty for indirect contempt depends upon the
authority to punish c ontemptuous acts (Nazareno v. level of the court against which the act was committed.
Barnes, G.R. No. L-59072, April 25, 1985). 1. If t he act was committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine not
The court does not declare the respondent in default exceeding PhP30,000 or imprisonment not exceeding
since the proceeding partakes the nature of a criminal 6 months or both.
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 2. If the act was committed against a lower court, the
28, 1982). penalty is a fine not exceeding PhP500.00 or
imprisonment not exceeding one month or both.
The procedural requisite s before the accused may 3. If t he contempt consists in the violation of a writ of
be punished for indirect contempt: injunction, TRO or a status quo order, the offender
1. A charge in writing to be filed; may also be ordered to make complete restitution to
2. An opportunity for the person charged to appear and the party injured by such violation of the property
explain his conduct; and involved or such amount as may be alleged and
proved.

4. Where the act is committed against a person or entity acquittal (Davao Timber Corporation v. Syhunliong,
exercising quasi-judicial functions, the penalty G.R. No. 80683, May 9, 1988).
imposed shall depend upon the provisions of the law 2. Civil contempt cannot be a basis for second jeopardy.
which authorizes a penalty for contempt against such But criminal contempt could be a different matter
persons or entities. (Convers e Rubber Corp. vs. Jacinto Rubber and
Plastics Co., Inc., G.R. Nos. L- 27425 and L-30505,
April 28, 1980).
May a non-party be held for contempt? As a rule, no. 3. An acquittal in contempt proceedings being penal in
However, if he is guilty of conspiracy with any one of nature, its denial aft er trial amounts to a virtual
the parties in violating the court’s orders, he may be acquittal from which an appeal would not lie
liable (Desa Ent. Inc. v. Securities and Exchange (The Insurance Commissioner v. Globe
Commission, G.R. No. L-45430, September 30, 1982). Assurance Co., Inc., No. L-27874, January 30, 1982).
SECTION 12. CONTEMPT AGAI NST QUASI-

JUDICIAL ENTITIES
Note: If a person is acquitted in an indirect contempt Rule 71 applies suppletorily to contempt committed
case he can no longer be charged again for the same against persons, entities, bodies or agencies exercising
offense because a contempt proceeding, whether civil quasi-judicial functions.
or criminal, it still a criminal proceeding, henc e, an
acquittal is a bar to a second prosecution (Santiago v.
Anunciacion, G.R. No. 89318, April 3, 1990). The judgment against a pers on adjudged to be in
contempt is immediately executory and can be stopped
only by filing a bond.
SECTION 8. IMPRISONMENT UNTIL ORDER
OBEYED As in criminal cases, a judgment absolving a person
When the contempt consists in refusal or omission to charged with criminal contempt or dismissing the
do an act which is yet in the power of the respondent to contempt charged is not appealable, unless, as in
perform, he may be imprisoned by order of the court criminal cases, there has been no adjudication on the
until he performs it. merits but only a dismissal on motion of the pe rson
charged based on jurisdictional ground; but these
SECTION 9. PROCEEDING WHEN PARTY
rulings do not apply to civil contempt and appeal lies
RELEASED ON BAIL FAILS TO ANSWER
The court may: from the order finding the defendant guilty or absolving
1. Issue another order of arrest, or him of the charge (Regalado, 2010).
2. May order t he bond for his appearance to be forfeited
If the defendant does not comply with a judgment
and confiscated, or
ordering him to vacate and deliver a property, he
3. Both.
cannot be cited for contempt. This is so becaus e the
If there is no aggrieved party, the bond shall be liable writ of execution being for the delivery of real property
and disposed of as in criminal cases. is addressed to the sheriff and not o the defendant
(Lipata v. Tutaan, G.R. No. L-61643, September 29,
SECTION 10. COURT MAY RELEASE RESPONDENT 1983).
The court may discharge respondent when it appears
that public interest will not be prejudiced by his release.
The RTC of the place wherein the contempt has been
SECTION 11. REVI EW OF JUDGMENT OR FINAL
committed shall have jurisdiction over such charges as
ORDER; BOND FOR STAY
may be filed thereto.
In Indirect contempt, the person adjudged for indirect
contempt may appeal such judgment or final order to
the proper court as in criminal cases (by notice of
appeal). The execution of the judgment shall not be
suspended until a bond is filed by the person adjudged
in contempt. This bond is conditioned upon his
performance of the judgment or final order if the appeal
is decided against him.
When double jeopardy exists

1. Reconsideration by the trial court of its order denying
the motion for contempt had the effect of placing the
respondents in double jeopardy, considering that the
denial of the motion is equivalent to a judgment of

V ENUE AND J URISDICT ION OF S PECIAL C IVIL ACT IONS
Special Civil Action Venue Jurisdiction
MTC – where t he value of the claim

or the personal property does not
exceed P300, 000 or P400,000 in
Metro Manila or where the value of
Where t he plaintiff or any of t he principal plaintiff
the real property does not exceed
resides or where the defendant or any of the
Interpleader P20,000 or P50,000 in Metro Manila.
principal defendants resides.
RTC – if the value exceeds the above

amounts or if t he subject matter is
exclusively within the juris diction of
the RTC (e.g. specific performance,
recovery of title)
Declaratory Relief Where the petitioner or the respondent resides. RTC.
RTC of the place where the respondent court,

Certiorari, Prohibition, corporation, officer or person is situated; RTC, CA, Sandiganbayan, COMELEC,
Mandamus in aid of its appellate jurisdiction (A.M.
No. 07-7-12-SC).
If petition is filed in the CA, or Sandiganbayan, in
which case the location of the respondent is
immaterial (Sec 4, Rule 65).
If filed with the SC, or CA, the location of

respondent is immaterial; or
RTC of place where the res pondent resides or

where any of the respondent resides;
Quo Warranto
However, if the SG commences the action, it may RTC, CA, Sandiganbayan and SC.
be brought in the RTC in Manila, CA or S C (Sec
7, Rule 66).
The Sandiganbayan has exclusive original

jurisdiction on quo warranto arising or that may
arise in cases filed under EO 1,2,14, 14-A but this
must be in aid of its appellat e jurisdiction and not
exclusive of the SC.
Where the property is located in case the subject

is a land; RTC (incapable of pecuniary
Expropriation estimation — Barangay San Roque v.
Heirs of Pastor, G.R. No. 138896, June
20, 2000).
In cases where the subject of expropriation is
personal propert y, venue is the place where the

plaintiff or defendant resides.
Foreclosure RTC (incapable of pecuniary

Where the land or any part thereof is located. estimation — Barangay San Roque v.
Heirs of Pastor, supra).
Where the real property or a portion thereof is

Partition located. If the subject matter is pers onal property RTC (incapable of pecuniary
(Sec. 13, Rule 69), in the plac e where the plaintiff estimation).
or the defendant resides.
Forcible
Entry/Unlawful Where the property is located. MTC.
Detainer
Contempt Where the Court involved is sitting. MTC, RTC, CA, SC.
Foreclosure RTC (incapable of pecuniary

Where the land or any part thereof is located. estimation — Barangay San Roque v.
Heirs of Pastor, supra).
Where the real property or a portion thereof is

Partition located. If the subject matter is pers onal property RTC (incapable of pecuniary
(Sec. 13, Rule 69), in the plac e where the plaintiff estimation).
or the defendant resides.
Forcible
Entry/Unlawful Where the property is located. MTC.
Detainer
Contempt Where the Court involved is sitting. MTC, RTC, CA, SC.

SPECIAL PROCEEDINGS
RULE 72-109
RULE 72 3. Recognition and enforcement of arbitration clause or

award;
S UBJECT M AT T ER AND 4. Vacation, setting aside, correction or modification of
APPLICABILIT Y OF G ENERAL RULES an arbitral award;
5. Any application with a court for arbitration assistance
and supervision.
Special Proceeding Note: The list under Sec. 1, Rule 72 is not exclusive.
Any petition which has for its main purpose the
A remedy by which a party seeks to establish a status, establishment of a status, right or a particular fact may
a right or a particular fact (Rule 1, Section 3c). be included as a special proc eeding (Festin, Special
Proceedings, A Foresight to the Bar Exam: Question
and A ns wer Notes, Bar Questions, Cases, Updated
SECTION 1. SUBJECT M ATTER OF SP ECIAL Laws and Rules, 2011 ed., p. 1).
PROCEEDINGS
SECTION 2. APPLI CABILITY OF RULES OF CIVIL

Special proceedings enumerated in the Rules of ACTIONS
Court (J-CRASHED-CHAG)
In the absence of special provisions, the rules provided
1. Judicial approval of voluntary recognition of minor for in ordinary actions shall be, as far as practicable,
natural children; applicable in special proceedings.
2. Change of name;
3. Rescission and revocation of adoption; The word “practicable” is defined as: possible to
4. Adoption; practice or perform; capable of being put into practice,
5. Settlement of estate of deceased persons; done or accomplished. This means that in the absence
6. Habeas corpus; of special provisions, rules in ordinary actions may be
7. Escheat; applied in special proceedings as much as possible and
8. Declaration of absence and death; where doing so would not pose an obstacle t o said
9. Canc ellation and correction of entries in t he civil proceedings. Nowhere in the Rules of Court does it
registry; categoric ally say that rules in ordinary actions are
10. Hospitalization of insane persons; inapplicable or merely suppletory to special
11. Adoption; proceedings. Provisions of the Rules of Co urt requiring
12. Guardianship and custody of children; certificate of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing
Other Special Proceedings (LCR-VA) fees for money claims against an estate would not in
any way obstruct probate proceedings (Shek er v.
1. Liquidation proceedings;
Estate of Alice Shek er, Medina, G. R. No. 157912,
2. Corporate rehabilitation;
December 13, 2007).
Notwithstanding Sec. 2, Rule 72, intervention as set that the legal interest required of an intervenor “must be
forth under Rule 19 does not extend to creditors of a actual and material, direct and immediat e, and not
decedent whose credit is based on a contingent claim. simply contingent or expectant” (Hilado, et al. v. Court
Sec. 1, Rule 19 requires that an intervenor “has a legal of Appeals, G.R. No. 164108, May 8, 2009).
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
Ordinary Special
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court Action Proceeding
x x x.” While the language of Sec. 1, Rule 19 does not Generally Generally no
literally preclude petitioners from intervening in the Nature adversarial in definite adverse
intestate proceedings, case law has consistently held nature. There party because it

are definit e is directed actions. specific rules. rules apply as

parties – plaintiff against the far as
vs. defendant. whole world, as practicable.
majority of Involves two or Involves two or May involve
special more parties. more parties. only one party.
proceedings are Some are
in rem. initiated by
To prot ect or Initiated by complaint while Initiated by
enforce a right To establish a complaint. some are petition.
Purpose or prevent or right, status or initiated by
redress a fact. petition.
wrong. Not based on
Some special
It is governed It is governed by Based on a a cause of
civil actions
by ordinary special rules cause of action (except
Governing have no cause
rules supplemented action. Habeas
Rules of action.
supplemented by ordinary Corpus).
by special rules. rules.
It is heard by Summary of venues and jurisdiction for different
It is heard by
Court with courts of Special Proceedings
courts of limited
Jurisdiction general Venue Jurisdiction
jurisdiction.
jurisdiction. Estate settlement (Rules 73-90)
Initiated by Province of decedent’s MTC – If estate’s
Initiated by a means of a residence at the time of gross value does not
pleading and petition and death exceed PhP300K
parties respond parties respond (PhP400K in Metro
How
through an by means of an Manila)
initiated
answer after opposition after If non-resident decedent – RTC – If estate’s
being served notice and Province where he had gross value exceed
with summons. publication are estate MTC’s jurisdiction
made. Escheat (Rule 91)
Parties are If decedent dies intestate
generally
and without heirs –
allowed to file Law on
Applicability an answer, pleadings Province where decedent
of pleadings counterclaim, generally not last resided or where
cross-claim and applicable. estate is
third-party If reversion – Province
complaint. where land lies
The period to wholly/partially
The period t o appeal is 30 Guardianship (Rule 92)
appeal is only days and aside Where ward resides or Family Court – If
Appeal 15 days and from a notice of
where his property is minor ward
notice of appeal appeal, a record
suffices. on appeal is
located (if non-resident) RTC – If other than
required. minor ward
Trusteeship (Rule 98)
Ordinary Civil Special Civil Special Where the will was RTC
Action Action Proceeding allowed or where the
property affected by the
One by which a trust is located
party sues Remedy by Adoption (AM No. 02-6-02, RA 8043)
another for the which a party
enforcement or Civil action seeks to If domestic – where Family Court
protection of a subject to establish a adopter resides
right or the specific rules. status, a right If inter-country – where Family Court or
prevention or or a particular adoptee resides (if filed Inter-Country
redress of a fact. with Family Court) Adoption Board
wrong. If rescission of adoption – Family Court
Governed by Ordinary rules Governed by where adoptee resides
the rules for apply primarily special rules Habeas Corpus (Rule 102)
ordinary civil but subject to and ordinary
Where detainee is SC (on any day

detained (if filed in RTC) and at any time, changed are kept) c)
enforceable Philippine consulates
anywhere in the (only for Philippine
Philippines) citizens who reside in
Sandiganbayan foreign countries)
(only in aid of its Declaration of absence and appointment of
appellate their representative (Rule 107)
jurisdiction) Where absentee last RTC
CA (in instances resided
authorized by law, Cancellation/Correction of entries in the civil
enforceable registry (Rule 108)
anywhere in the If judicial – where the RTC
Philippines) concerned civil registry is
RTC (on any day located
and at any time, If administrative - Local civil registry
enforceable only or Philippine
within its judicial a) Local civil registry Consulate
district) where the record sought
Family Court (on to be changed is kept b)
custody of minors, Local civil registry of the
enforceable within place of residence of
its territorial interested party (only if
jurisdiction, [Sec. petitioner migrated to
20, AM No. 03-04- another place in the
04-SC]) Philippines and it would
Writ of Amparo (AM No. 07-9-12-SC) be impractical to file in the
Where the threat or SC, CA, place where records
act/commission or any of Sandiganbayan, sought to be changed are
its elements occurred RTC kept) c) Philippine
Writ of Habeas Data (AM No. 8-1-16-SC) consulates (only for
Petitioner’s residence or RTC Philippine citizens who
where the place the reside in foreign
information is countries)
gathered/collected/stored, SC, CA,
at the petitioner’s option Sandiganbayan - If Special Proceedings under various laws and
the action SC Circulars
concerns public a. Petitions under the Family Courts Act (R.A.
data files of No. 8369)
government offices 1. Rule on Declaration of Absolute Nullity of
Change of name (Rule 103) Void Marriages and Annulment of Voidable
If judicial - Where the RTC Marriages (A.M. No. 02-11-10-SC, March 15,
person applying for the 2003);
change of his name 2. Rule on Legal Separation (A.M. No. 02-11-
resides 11-SC, March 15, 2003);
If administrative - a) Local Local civil registry 3. Rule on Provisional Orders (A.M. No. 02-
civil registry where the or Philippine 11-12-SC, March 15, 2003);
record sought to be consulate 4. Rule on Custody of Minors and Writ of
changed is kept b) Local Habeas Corpus in Relation to Custody of
civil registry of the place Minor Children (A.M. No. 03-04-04, April 22,
of residence of interested 2003);
party (only if petitioner 5. Summary of Judicial Proceedings under
migrated to another place the Family Code (Arts. 238-253, New Civil
in the Philippines and it Code)
would be impractical to b. Proceedings for protection orders under
file in the place where the Violence against Women and their Children
records sought to be Act (R.A. No. 9262)

Petition for Probate of will, if any (Rule 75-76)
1. Rule on Violence against Women and
Children (A.M. No. 04-10-11, October 19,
2004) Court order fixing the time and place for probate.
c.Proceedings under the Arbitration Law (R.A. No.
876) and Alternative Dispute Resolution Act
(R.A. No. 9285)
Publication of hearing for 3 successive weeks. Notice
1. Arbitration; court-annexed mediation and
judicial dispute resolution (A.M. No. 01-10-5- shall also be given to the designated/known heirs,
SC-PHILJA, October 16, 2001). legatees and devisees, and the executor if the one
petitioning for allowance of the will is not the testator.
S ET T LEM ENT OF E ST AT E OF
D ECEASED P ERSONS Issuance of Letters
Testamentary/Administration (A special
RULES 73-90 administrator may be appointed) (Rules 77-80)
Different modes of settlement of estate of a

deceased person/presumed dead Publication of Notice for Filing Claims
1. Extrajudicial Settlement of Estate (Section
1, Rule 74); Filing of Claims (Rule 86)
2. Summary Settlement of Estate of Small
Value (Section 2, Rule 74);
3. Partition (Rule 69);
4. Probate of Will (Rule 75 to 79); Issuance of Order of Payment or Sale of
5. Petition for Letters of Administration in Properties
cases of Intestacy (Rule 79);
Payment of Claims:
Procedure in settlement proceedings (Judicial) Sale/Mortgage/Encumbrance of estate
properties.
RULE 73
V ENUE AND P ROCESSES Distribution of remainder, if any
(But this can be made even before payment if
a bond is filed by the heirs).
SECTION 1. WHERE ESTATE OF DECEASED

PERSONS SETTLED
Jurisdiction: It depends upon the gross value of

the estate of the decedent:
1. In Metro Manila – MTC: gross value does
not exceed PhP400,000.00, otherwise, RTC;
2. Outside Metro Manila – MTC: gross value
does not exceed PhP300, 000.00, otherwise,
RTC (Sec. 19(4), Sec. 33(1), B.P. Blg. 129).
.
Note: Jurisdiction over the subject matter is
determined by the allegations in the petition;
(Cadimas v. Carrion, G.R. No. 180394, September
29, 2008); hence, it is not the actual gross value of

the estate, which is the basis of jurisdiction but the Extent of jurisdiction: Probate courts are courts
alleged gross value of the estate. of limited jurisdiction. it may only determine and
rule upon issues relating to the settlement of the
Venue
estate, namely: (LAD)
1. Inhabitant (Resident) of the Philippines 1. Liquidation of the estate;
(whether citizen or alien) – Court of the 2. Administration of the estate; and
province/city where he resides at the time of 3. Distribution of the estate (Herrera, Special
death. Proceedings and Special Rules Implementing
2. Inhabitant (Resident) of Foreign Country –
the Family Courts Act of 1997, 2005 ed., p. 12).
Court of any province wherein he had his estate
(Sec. 1, Rule 73).
General Rule: Probate court cannot determine
Residence issue of ownership.
Exceptions:
Residence means his personal, actual or physical
habitation, his actual residence or place of abode 1. Ownership may be provisionally
(Fule v. Court of Appeals, G.R. No. L-40502, determined for the purpose of including property
November 29, 1976). in inventory, without prejudice to its final
determination in a separate action (Vda. De
Where the proceeding was commenced with a Valera, et al., v. Inserto et al., G.R. No. 56504,
court of improper venue, as where the decedent May 7,1987);
was neither a resident at the time of his death nor 2. When all the parties are heirs and they
had estate therein, and such objection was submit the issue of ownership to the probate
seasonably raised in the probate court, the petition court provided that the rights of third parties are
should be dismissed and the proceedings should not prejudiced (Bernardo v. Court of Appeals,
be instituted in the proper court (Eusebio v. G.R. No. L-18148, Feb. 28, 1963);
Eusebio, et. al,. G.R. No. L-8409, December 28, 3. Question is one of collation or
1956). advancement (Coca, et al., v. Pangilinan et al.,
G.R. No. L-27082, Jan. 31, 1978).
Remedy if venue is improperly laid
General Rule: Ordinary appeal not certiorari or
prohibition. The RTC acting in its general jurisdiction is devoid
of authority to render adjudication and resolve the
Exception: If want of jurisdiction appears on the issue of advancement of the real property in favor
record of the case (Sec. 1, Rule 73). of an heir since reconveyance and annulment of
title with damages is not the proper vehicle to
thresh out said question (Natcher v. Court of
The judicial settlement of a decedent’s estate is a Appeals, G.R. No. 133000, October 2, 2001).
proceeding in rem.
Other questions which the probate court can
Two kinds of settlement determine
1. Extrajudicial settlement – a proceeding
1. Who the heirs of the decedent are;
where the decedent had left no will and no debts, 2. The recognition of a natural child;
and the heirs adjudicate the estate among 3. The validity of disinheritance effected by
themselves without seeking letters of the testator;
administration (Sec. 1, Rule 74). 4. Status of a woman who claims to be the
2. Judicial settlement – Testate or intestate
lawful wife of the decedent;
proceeding instituted in the country where 5. The validity of a waiver of hereditary rights;
decedent had his residence at the time of his 6. The status of each heir;
death or had estate if a nonresident (Sec. 2, 7. Whether property in inventory is conjugal
Rule 74).
or exclusive property of deceased spouse;
a. Summary judicial proceedings (if the value of 8. Matters incidental or collateral to the
estate is below PhP10,000); settlement and distribution of the estate
b. Regular settlement proceedings

(Regalado, Remedial Law Compendium Vol. II, Exceptions: (CEE)

2008 ed., p. 13).
1. To satisfy the contributive share of the
devisees, legatees and heirs when the latter had
Exclusionary Rule entered prior possession over the estate (Sec. 6,
General Rule: The court first taking cognizance of Rule 88);
the settlement of the estate of the decedent shall 2. To enforce payment of the expenses of
exercise jurisdiction to the exclusion of all other partition (Sec. 3, Rule 90);
courts. 3. To satisfy the costs when a person is cited
for examination in probate proceedings (Sec. 13,
The probate court acquires jurisdiction from the Rule 142).
moment the petition for the settlement of estate is
filed with said court. It cannot be divested of such
Under the rule of inclusio unius est exclusio
jurisdiction by the subsequent acts of the parties
alterius, these should be the only instances when
as by entering into extrajudicial partition of the
the probate court can issue writ of execution (Vda.
estate (Sandoval v. Santiago, G.R. No. L-1723,
De Valera, et al., v. Ofilada, et al., G.R. No. L-
May 30, 1949); or by filing another petition for
27526, Sept. 12, 1974).
settlement in a proper court of concurrent venue
(Rodriguez v. De Borja, G.R. No. L-21993, June SECTION 4. PRESUMPTION OF DEATH
21, 1966).
There is no need for an independent action for
Exception: Estoppel by Laches Declaration of Presumptive Death for purposes of
Succession.
Note: Jurisdiction under Rule 73 Sec. 1 does not
relate to jurisdiction per se but to venue. Hence, The returning absentee’s recovery of his estate is
institution in a court where the decedent is neither subject to the following conditions:
an inhabitant nor had his estate may be the
subject of waiver (Uriarte v. CFI, G.R. No. L- 1. All his debts must have been paid;
21938-39, May 29, 1970). 2. He shall recover his property in the
condition in which it may be found together with
the price of any property that may have been
SECTION 2. WHERE THE ESTATE SETTLED alienated or the property acquired therewith;
UPON DISSOLUTION OF MARRIAGE 3. He is not entitled to the fruits of the rent
(Art. 392, New Civil Code).
Upon the death of either the husband or the wife,
the partnership affairs must be liquidated in the
testate or intestate proceedings of the deceased
husband or wife. If both have died, liquidation may RULE 74
be made in the testate or intestate proceedings of S UM M ARY S ET T LEM ENT OF
either (Bernardo, et. al. v. Court of Appeals, et. al.,
G.R. No, L-18148, February 28, 1963). E ST AT ES
SECTION 3. PROCESS
The RTC may issue warrants and processes to General Rule: The settlement of the estate of the
compel the attendance of witnesses. decedent should be judicially administered through
an administrator or executor.
Writ of Execution
Exception:
General Rule: Probate court cannot issue writs of The heirs may resort to:
execution. 1. Extrajudicial settlement of estate (Sec.1);
2. Summary settlement of estates of small
Ratio: Its orders usually refer to the adjudication value (Sec. 2).
of claims against the estate which the
executor/administrator may satisfy without the Note: In both exceptional circumstances, an
need of executory process (Regalado, p.14). administrator or executor need not be appointed.

SECTION 1. EXTRAJUDICIAL SETTLEMENT BY Note: The bond is required only when personalty
AGREEMENT BETWEEN HEIRS is involved. If it is a real estate, it shall be subject
to a lien in favor of creditors, heirs or other
Extrajudicial Settlement persons for the full period of 2 years from such
distribution and such lien cannot be substituted by
Procedure in extrajudicial settlement by a bond (Rebong v. Ibañez, G.R. No. L-1578,
agreement between/among heirs September 30, 1947).
The bond is the value of the personal property

Division of estate in public certified by the parties under oath and conditioned
instrument or affidavit of upon payment of just claims filed under Sec. 4,
adjudication Rule 74.
Affidavit of Self Adjudication
The public instrument or
affidavit of adjudication must An affidavit required by Sec 1 of Rule 74 to be
be filed with the proper executed by the sole heir of a deceased person in
Registry of Deeds adjudicating to himself the entire estate left by the
decedent.
Publication of notice of the Is a public instrument necessary for the

fact of extrajudicial settlement validity of an extra-judicial settlement? No. A
once a week for 3 consecutive private instrument/document or oral agreement of
weeks in a newspaper of partition as well as a compromise agreement
general circulation entered without previous authority of the court is
valid among the heirs who participated in the
extrajudicial settlement. The requirement under
Filing of bond equivalent to
Sec. 1, Rule 74 that it must be in a public
the value of personal property
instrument is not constitutive of the validity but is
with the proper Registry of
merely evidentiary in nature (Hernandez v. Andal,
Deeds
G.R. No. L-273, March 29, 1947). Under the new
Rules, it would appear that a public instrument is
now required for registration. If the settlement is in
Requisites: a private instrument, it is believed that the same is
still valid and reformation of the instrument may be
A. Substantive
compelled (Arts. 1359, et. seq., New Civil Code).
1. The decedent left -
a. No will;
b. No debts.
2. The heirs are all of age or the minors are Extrajudicial Summary
represented by their judicial or legal Settlement Settlement
representatives duly authorized for the
purpose. Requires summary
B. Procedural No court intervention.
judicial adjudication.
1. Division of estate must be in a public
Value of the estate is Gross estate must not
instrument or by affidavit of self-adjudication
immaterial. exceed PhP10,000.
in the case of a sole heir;
2. Filed with proper Registry of Deeds; Allowed only in Allowed in both testate
3. Publication of notice of the fact of intestate succession. and intestate
extrajudicial settlement once a week for 3
consecutive weeks; It is available even if
4. Filing of the bond with the Register of Deeds There must be no
there are debts; it is
equivalent to the value of personal property. outstanding debts of
the court which will
(Sec. 1, Rule 74). the estate at the time
make provision for its

Extrajudicial Summary In accordance with B.P. Blg. 129, the summary

Settlement settlement of estates of small value is within the
Settlement jurisdiction of the MTCs.
of settlement. payment.
Important Requirements:
1. Application must contain allegation of gross

May be instituted by value of estate;
Resorted at the any interested party 2. Date for hearing:
instance and by even by a credit of the a. Shall be set by court not less than 1 month
agreement of all heirs. estate without the nor more than 3 months from date of last
consent of all heirs. publication of notice;
b. Order of hearing published, once a week
Amount of bond is Amount of bond is to for 3 consecutive weeks in a newspaper of
equal to the value of be determined by the general circulation.
personal property. court. 3. Notice shall be served upon such
interested persons as the court may direct;
Bond is filed with the Bond is filed with the 4. Bond in an amount fixed by the court (not
Register of Deeds. court. value of personal property) conditioned upon
payment of just claims under Sec. 4.
Note: While the Rules provide that the decedent
must not have left any debts, it is sufficient if any Procedure in summary settlement of estates of
debts he may have left have been paid at the time small value
the extrajudicial settlement is entered into (Guico v.
Bautista, G.R. No. L-14921, December 31, 1960). Application for summary settlement with an
allegation that the gross value of the estate
does not exceed PhP10,000.00
Disputable presumption that decedent left no
debts: If no creditor files a petition for letters of
Publication of notice of the fact of summary
administration within 2 years after the death of the settlement once a week for 3 consecutive weeks in a
decedent it is presumed that the estate left no newspaper of general circulation (the court may also
debts (Sec. 1, Rule 74). order notice to be given to other persons as such
court may direct)
Note: Section 1, Rule 74 does not preclude the

heirs from instituting administration proceedings
even if the estate has no debts or obligations, if Hearing to be held not less than 1 month nor
they do not desire to resort, for good reasons, to more than 3 months from the date of the last
an ordinary action for partition (Rodriguez v. Tan, publication of notice court may direct)
G.R. No. L-6044, November 24, 1952).
“Good reason” depends on the circumstances of Court to proceed summarily, without appointing
each case (Pereira v. CA, et al., G.R. No. 81147, an executor/administrator, and to make orders as
June 20, 1989). may be necessary, such as:
SECTION 2. SUMMARY SETTLEMENT OF a) Grant allowance of the will, if any;
ESTATES OF SMALL VALUE b) Determine persons entitled to estate;
c) Pay debts of estate which are due
The gross value of the estate must not exceed
PhP10,000. Filing of the bond fixed by the court
Partition of the estate

estate (Benatiro v. Heirs of Cuyos, G.R. No.

161220, July 28, 2008).
SECTION 3. BOND TO BE FILED BY
DISTRIBUTEES Note: The other heirs are also not bound by the
extrajudicial settlement should the Deed of
The amount of bond required under a summary Extrajudicial Partition or Affidavit of Self-
settlement is determined by the court, unlike in an Adjudication be false (Sec. 4 in relation to Sec. 1).
extrajudicial settlement where the amount is equal
to the value of the personal property as Remedies of the Aggrieved Parties after
established by the instrument of adjudication Settlement of the Estate
(Regalado, p. 21). 1. Within 2 years - claim against the bond or
the real estate or both (Sec.4, Rule 74);
2. Rescission in case of preterition of
SECTION 4. LIABILITY OF DISTRIBUTEES AND compulsory heir in partition tainted with bad faith
ESTATE (Article 1104, NCC);
3. Reconveyance of real property;
When settlement of estates in the courts may 4. Action to annul a deed of extrajudicial
be compelled: settlement on the ground of fraud which should
be filed within 4 years from the discovery of
1. If there is an undue deprivation of lawful fraud;
participation in the estate; 5. Petition for Relief on the ground of FAME
2. The existence of debts against the estate; – fraud, accident, mistake, excusable negligence
or – 60 days after the petitioner learns of the
3. If there is an undue deprivation of lawful judgment, final order or other proceeding to be
participation payable in money. set aside, and not more than 6 months after
such judgment or final order was entered (Rule
Note: The bar against distributees from objecting 38);
to an extrajudicial partition after the expiration of 6. Reopening by Intervention within anytime
two years is applicable only: before rendition of judgment, as long as it is
a. To persons who have participated or taken within the reglementary period of 2 years;
part or had notice of the extrajudicial partition, 7. New action to annul settlement within
and reglementary period of 2 years.
b. When all the persons or heirs of the
decedent have taken part in the extrajudicial
settlement (Sampio v. Court of Appeals, G.R. An heir deprived of his share may file an action for
No. L-10474, February 28, 1958). reconveyance based on an implied or constructive
trust which prescribes 10 years from the date of
Is a person who had no knowledge or had not registration or date of issuance of certificate of title
participated in the extrajudicial settlement or from actual discovery of fraud if the registration
bound thereby by reason of constructive was made in bad faith (Marquez v. Court of
notice of publication? No. Extrajudicial Appeals, G.R. No. 125715, December 29, 1998).
settlement under Sec. 1 of Rule 74 is an ex parte
proceeding, and the rule plainly states that
persons who do not participate or had no notice of
an extrajudicial settlement will not be bound Where the estate has been summarily settled, the
thereby, and contemplates a notice that has been unpaid creditor may, within 2 years, file a motion
sent out or issued before any deed of settlement in court wherein such summary settlement was
or partition is agreed upon, and not after such had, for the payment of his credit.
agreement has already been executed. The
publication of the settlement does not constitute
constructive notice to the heirs who had no After the lapse of 2 years, an ordinary action may
knowledge or did not take part because the same
be instituted against the distributees within the
was notice after the fact of execution. The
statute of limitations but not against the bond.
requirement of publication is geared for the
protection of creditors and was never intended to
deprive heirs of their lawful participation in the

The 2-year lien upon the real property distributed prejudice the legitime of the forced heir” (Mang-
by extrajudicial or summary settlement shall be Oy v. Court of Appeals, G.R. No. L-27421,
annotated on the title issued to the distributees September 12, 1986).
and after 2 years will be cancelled by the register
of deeds without need of court order (Land
Registration Commission Circular 143 dated 3. Imprescriptible – because of the public
January 28, 1964). policy to obey the will of the testator.
4. The doctrine of estoppel does not apply.
The presentation and probate of the will is
Such lien cannot be discharged nor the annotation required by public policy. It involves public
be cancelled within the 2 year period even if the interest (Fernandez v. Dimagiba, G.R. No. L-
distributees offer to post a bond to answer for 23638, October 12, 1967).
contingent claims from which lien is established
(Rebong v. Ibañez, G.R. No. L-1578, September
30, 1947). SECTION 2. CUSTODIAN OF WILL TO
DELIVER
The custodian must deliver the will to the court or

SECTION 5. PERIOD FOR CLAIM OF MINOR to the executor within 20 days after he learns of
OR INCAPACITATED PERSON
the death of the testator.
If on the date of the expiration of the two-year
period, the creditor or heir is:
SECTION 3. EXECUTOR TO PRESENT WILL
1. A minor; or AND ACCEPT OR REFUSE TRUST
2. Incapacitated; or
3. In prison; or The executor, within 20 days after he knows of the
4. Outside the Philippines. testator’s death or after he knows that he is named
an executor if he knows it after the testator’s death,
He may present his claim within one year after shall:
such disability is removed (Sec. 5 Rule 75). 1. Present the will to the court (unless it has
reached the court in any other manner); and
2. Signify in writing his acceptance or refusal
RULE 75 of the trust.
P RODUCT ION OF WILL
ALLOWANCE OF WILL NECESSARY SECTION 4. CUSTODIAN AND EXECUTOR
SUBJECT TO FINE FOR NEGLECT
SECTION 1. ALLOWANCE NECESSARY. A fine not exceeding PhP2,000.
CONCLUSIVE AS TO EXECUTION
SECTION 5. PERSON RETAINING WILL M AY
Nature of probate proceedings BE COMMITTED
1. In Rem: binding on the whole world Probate
(Regalado, p. 31).
2. Mandatory: no will shall pass either real or The act of proving in a court a document
personal property unless it is proved and allowed purporting to be the last will and testament of a
in the proper court (Sec. 1, Rule 75). deceased person in order that it may be officially
recognized, registered and its provisions carried
out insofar as they are in accordance with the law
However, a will may be sustained on the basis of
(also referred to as allowance of the will)
Article 1080 of the Civil Code which states that: (Jurado, Comments and Jurisprudence on
“If the testator should make a partition of his Succession, 2009, 9th Edition, p. 134).
properties by an act inter vivos, or by will, such
partition shall stand in so far as it does not

May Sec. 1, Rule 76 be waived since it is just a

RULE 76 procedural requirement? No because the same
ALLOWANCE OR D ISALLOWANCE requirement is embodied in Art. 838 of the Civil
OF WILL Code, which is a substantive law.
SECTION 1. WHO MAY PETITION FOR THE

ALLOWANCE OF WILL Issue in the probate of a will
1. Executor; General Rule: Only determination of the extrinsic

2. Devisee or legatee named in the will; validity not the intrinsic validity or validity of
3. Person interested in the estate (e.g. heirs); testamentary dispositions.
An interested party is one who would be Exceptions:
benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a Principle of practical considerations
creditor (Sumilang v. Ramagosa, G.R. No. L-
1. The waste of time, effort, expense plus
23135, December 26, 1967).
added anxiety are the practical considerations
4. Testator himself during his lifetime; that induced the SC to a belief that we might as
5. Any creditor - as preparatory step for filing well meet head-on the issues of the validity of
of his claim therein (Regalado, p.30). the provisions of the will in question (Nuguid v.
Nuguid, G.R. No. L-23445, June 23, 1966).
2. Where the entire or all testamentary
Who may be a party in probate? In general, any dispositions are void and where the defect is
person having a direct and material interest in the apparent on its face (Acain v. Intermediate
will or estate (Trillana v. Crisostomo, G.R. No. L- Appellate Court, G.R. No. 72706, October 27,
3378, August 22, 1951). 1987; Nepumuceno v. Court of Appeals, G.R. No.
L-62952, October 9, 1985).
1. The jurisdictional facts – death of the Extrinsic Validity

testator and his residence at the time of death or
the province where estate was left by the Means due execution of the will.
decedent who is a non-resident;
Meaning of due execution (FM-VPS)
2. The names, ages, and residences of the
heirs, legatees, and devisees of the testator or 1. That the will was executed strictly in
decedent; accordance with the formalities required by law;
3. The probable value and character of the 2. That the testator was of sound and
property of the estate; disposing mind when he executed the will;
4. The name of the person for whom letters 3. That there was no vitiation of consent
are prayed; and through duress, fear or threats;
5. The name of the person having custody of 4. That it was not procured by undue or
the will if it has not been delivered to the court. improper pressure or influence on the part of the
beneficiary, or some other person for his benefit;
But no defect in the petition shall render void the 5. That the signature of the testator is
allowance of the will, or the issuance of letters genuine, i.e., it was not procured through fraud
testamentary or of administration with the will and that the testator intended that what he
annexed. executed was his last will and testament (Art.
839, New Civil Code).
Effect of the probate of a will: It is conclusive as
to the execution and validity of the will (even SECTION 3. COURT TO APPOINT TIME FOR
against the State). Thus, a criminal case against PROVING WILL; NOTICE THEREOF TO BE
the forger may not lie after the will has been PUBLISHED
probated (Jurado, p. 144).
The probate of a will is a proceeding in rem and
the publication provided for by this Rule is a

jurisdictional requirement. The personal service of i. If all subscribing witnesses reside outside
notice upon the heirs is a matter of procedural the province – deposition is allowed (Sec.7).
convenience and not a jurisdictional requisite. ii. If the subscribing witnesses are dead,
(Regalado, p. 31) insane, or none of them resides in the
Philippines – The court may admit testimony
of other witnesses to prove the sanity of the
testator, and the due execution of the will,
If the petition for probate is on the testator’s own and as evidence of the execution of the will,
initiative during his lifetime (Ante Mortem): it may admit proof of the handwriting of the
1. No publication is necessary (Sec. 3); and
testator and of the subscribing witnesses or
2. Notice shall be made only to the compulsory
of any of them (Sec. 8).
heirs (Sec. 4).
b. Holographic Wills: the testimony of one
witness who knows the handwriting and
Note: Three (3) weeks successively is not strictly
signature of the testator. In the absence
21 days. It is sufficient that publication has been thereof and if the court deem it necessary,
made once a week successively three times, even expert testimony may be resorted to.
if less than twenty- one days intervened between
the first and last publication (Basa v. Mercado,
G.R. No. L-42226, July 26, 1935). In case of a holographic will, it is not
mandatory that witnesses be first presented
before expert testimony may be resorted to,
SECTION 4. HEIRS, DEVISEES, LEGATEES, unlike notarial wills wherein the attesting
AND EXECUTORS TO BE NOTIFIED BY MAIL witnesses must first be presented or accounted
OR PERSONALLY for (Azaola v. Singson, G.R. No. L-14003,
August 5, 1960). This is so because
holographic wills are not required to be
Persons to be Given Notice: witnessed and the existence of a qualified
witness may be beyond the control or
1. Designated or known heirs, legatees and knowledge of the proponent of the will
devisees; and (Regalado, p. 35).
2. Executor and co-executor if not the
petitioner.
Modes of Notification
2. Contested Will
1. If by mail: 20 days before hearing a. Notarial Wills: All subscribing witnesses
2. If through personal service: 10 days and the notary public before whom the will was
before hearing. acknowledged must be produced and
examined (Sec. 11).
SECTION 5. PROOF AT HEARING. WHAT

SUFFICIENT IN ABSENCE OF CONTEST However, if any or all the witnesses (i) testify
against the execution of the will, (ii) do not
At the hearing, compliance of publication and remember attesting thereto, or (iii) are of
notice must first be shown before introduction of doubtful credibility, the will may be allowed if
testimony in support of the will. the court is satisfied from the testimony of
other witnesses and from all the evidence
presented that the will was executed and
Evidence required in support of a will
1. Uncontested Will attested in the manner required by law (An
a. Notarial Wills: Testimony of at least one of instance where a party may impeach his own
the subscribing witnesses may be allowed, if witness).
such witness testifies that the will was
executed as is required by law (Sec.5).

b. Holographic Wills: 3 witnesses who know 2. That the will was in existence when the
the handwriting of testator. In the absence testator died, or if it was not, that it has been
thereof and if the court deem it necessary, fraudulently or accidentally destroyed in the
testimony of an expert witness may be lifetime of the testator without his knowledge;
resorted to. and
3. The provisions of the will are clearly
established by at least two credible witnesses.
However, in Codoy v. Calugay (G.R. No.
123486, Aug. 12, 1999), the SC ruled that if
the holographic will is contested, 3 witnesses SECTION 7. PROOF WHEN WITNESSES DO
who know the handwriting and signature of the NOT RESIDE IN PROVINCE
testator are now required/mandatory to prove SECTION 8. PROOF WHEN WITNESSES DEAD
its authenticity and for its allowance.
OR INSANE OR DO NOT RESIDE IN THE
PHILIPPINES
General Rule: A holographic will if destroyed SECTION 9. GROUNDS FOR DISALLOWING

cannot be probated. WILL
Grounds provided for are exclusive: (FIDUS)
Exception: If there exists a Photostatic or Xerox 1. If not executed and attested as required by
copy thereof (Gan v. Yap, G.R. No. L-12190, law; (formalities)
August 30, 1958). 2. If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
3. If it was executed under duress, or the
Note: In the case of a contested notarial will, it is influence of fear, or threats;
the duty of the petitioner to produce all the 4. If it was procured by undue and improper
available attesting witnesses and the notary public, pressure and influence, on the part of the
but he is not concluded by the testimony of said beneficiary, or of some other person for his
witnesses, even if adverse, as the court may still benefit;
admit the will to probate on the basis of other 5. If the signature of the testator was
satisfactory evidence (Fernandez v. Tantoco, G.R. procured by fraud or trick, and he did not intend
No. 25489, September 8, 1926). This is an that the instrument should be his will at the time
of fixing his signature thereto.
exception to the rule that a party is generally
bound by the testimony or evidence that he
presents, because here, unlike ordinary actions, Substantial Compliance Rule
he has no choice in the evidence as he is duty-
bound to account for all attesting witnesses. It has If the will has been executed in substantial
been held that the testimony of the notary before compliance with the formalities of the law, and the
whom the will was acknowledged will prevail over possibility of bad faith and fraud is obviated, said
that of the two attesting witnesses who claim will should be admitted to probate (Art. 809, NCC).
undue execution of the will (Ramos, et. al. v. Court Separate wills which contain essentially the same
of Appeals, et. al. G.R. No. L-40804, January 31, provisions and pertain to properties which in all
1978). probability are conjugal in nature, practical
SECTION 6. PROOF OF LOST OR DESTROYED considerations dictate their joint probate (Vda. De
WILL. CERTIFICATE THEREUPON Perez v. Tolete, G.R. No. 76714, June 2, 1994).
This section applies to a lost or destroyed notarial Separate Wills probated jointly in view of
will and not to a holographic will. simultaneous deaths of the spouses testators:
A literal application of the rules should be avoided
Facts which should be proved in order that a if they would only result in the delay in the
lost or destroyed will may be allowed: administration of justice. What the law expressly
1. That the will has been duly executed by the prohibits is the making of joint wills either for
testator; testators reciprocal benefit or of 3r d person. Wills

of the decedent spouse are essentially similar in It is a requirement that a will which was probated
disposition and property; joint probate was allowed in a foreign country be re-probated in the
(Acain v. IAC, G.R. No. 72706, October 27,1987). Philippines. If the decedent owns properties in
different countries, separate proceedings must be
had to cover the same.
Law governing forms of wills:
The law in force at the time of the execution of a SECTION 2: NOTICE OF HEARING FOR
will (Art. 795, NCC). ALLOWANCE.
What should be filed:
SECTION 10. CONTESTANT TO FILE Petition for allowance accompanied with:
GROUNDS OF CONTEST 1. Authenticated copy of the will
2. Authenticated decree of the allowance
Contestant must: thereof.
1. State in writing his grounds for opposing The court will then fix a time and place for hearing
the allowance of the will; and and cause notice thereof to be given.
2. Serve a copy thereof to petitioner and other
interested parties. With regard to notices, the will probated abroad
should be treated as if it were an original will or a
will presented for probate for the first time.
SECTION 11. SUBSCRIBING WITNESSES Accordingly, compliance with Sections 3 and 4 of
PRODUCED OR ACCOUNTED FOR WHERE Rule 76, which require publication and notice by
WILL CONTESTED mail or personally to the known heirs, legatees,
and devisees of the testator resident in the
SECTION 12. PROOF WHERE TESTATOR
Philippines and to the executor, if he is not the
PETITIONS FOR ALLOWANCE OF petitioner, are required (Salud Teodoro Vda. De
HOLOGRAPHIC WILL Perez v. Hon. Zotico A. Tolete, G.R. No. 76714,
June 2, 1994).
If there is no contest, the fact that the testator
affirms that the holographic will and the signature Matters to be proven during a re-probate
are in his own handwriting shall be sufficient proceeding:
evidence of the genuineness and due execution 1. That the testator was domiciled in a foreign
thereof. country;
In case of contest, the burden of proof is on the 2. That the will has been admitted to probate
in such country;
contestant.
3. That the foreign court was, under the laws
SECTION 13. CERTIFICATE OF ALLOWANCE of said foreign country, a probate court with
ATTACHED TO PROVED WILL. TO BE jurisdiction over the proceedings;
RECORDED IN THE OFFICE OF REGISTER OF 4. The law on probate procedure in said
DEEDS. foreign country proof of compliance therewith;
and
Order for probate is final. Thus, it is appealable. 5. The legal requirements in said foreign
country for the valid execution of the will (De
RULE 77 Perez v. Tolete, supra).
ALLOWANCE OF WILL PROVED Effects of the allowance of a will under Rule 77:
1. The will shall be treated as if originally
O UT SIDE OF P HILIPPINES AND proved and allowed in Philippine courts;
ADM INIST RAT ION OF E ST AT E 2. Letters testamentary or administration with
T HEREUNDER a will annexed shall extend to all estates in the
Philippines;
3. After payment of just debts and expenses
of administration, the residue of the estate shall
SECTION 1: WILL PROVED OUTSIDE THE be disposed of as provided by law in cases of
PHILIPPINES MAY BE PROVED HERE. estates in the Philippines belonging to persons
who are inhabitants of another state or country.

Who may serve as an executor or

Note: In the absence of proof of the foreign law, it administrator? Any competent person may serve
is presumed that it is the same as that in the as executor or administrator.
Philippines (Doctrine of Processual Presumption).
SECTION 1. WHO ARE INCOMPETENT TO
The venue for the petition for re-probate is the SERVE AS EXECUTORS OR
same as that provided for in Rule 73. ADMINISTRATORS
A will of a foreigner executed abroad can be 1. A minor;

probated in the Philippines without need of being 2. A non-resident;
3. One who in the opinion of the court is unfit
probated abroad. Art. 816 of the Civil Code states
to exercise the duties of the trust by reason of:
that the will of an alien who is abroad produces a. Drunkenness – when the habits of drink
effect in the Philippines if made in accordance with are carried so far as to cloud the brain and
the formalities prescribed by the law of the place weaken their respect for honesty and integrity;
where he resides, or according to the formalities The drunkenness contemplated by this statute,
observed in his country. Reprobate of a will undoubtedly, is that excessive, inveterate and
already probated and allowed in a foreign country continued use of intoxicants, to such an extent
is different from that probate where the will is as to render the subject of the habit as unsafe
presented for the first time before a competent against to entrust with the care of property or
court. Reprobate is specifically governed by Rule the transaction of business (Herrera, p. 78).
77. In reprobate, the local court acknowledges as b. Improvidence – means the want of care
binding the findings of the foreign probate court and foresight in the management of property
provided its jurisdiction over the matter can be which would be likely to render the estate and
effects of the intestate unsafe and liable to be
established. If the instituted heirs do not have the
lost or diminished in value (Black’s Law
means to go abroad for the probate of the will, it is Dictionary, 5th ed., p.682).
as good as depriving them outright of their c.Want of understanding – amounts to lack of
inheritance (In Re: Palaganas, G.R. No. 169114, intelligence such as would or might subject
26 January 2011). one to sinister influence or coercion against
the general interest of the estate (Herrera,
RULE 78 p.80).
d. Want of integrity – integrity is
L ET T ERS T EST AM ENT ARY AND OF synonymous to probity, honesty and
ADM INIST RAT ION , WHEN AND T O uprightness in business relations with others.
The accusation should be certain and grave in
WHOM I SSUED its nature (Herrera, p.80).
e. Conviction for an offense involving
moral turpitude – an act of baseness,
Who can administer the estate?
vileness or depravity in the private and social
1. Executor – the one named by the testator duties which a man owes his fellow men, to
in his will for the administration of his property society in general, contrary to the accepted
after his death. and customary rule of right and duty between
2. Administrator, regular or special – the man and woman or conduct contrary to justice,
one appointed by the Court in accordance with honesty, modesty or good morals (Zari v.
the Rules or governing statutes to administer Flores, A.M. No. (2170-MC) P-1356 November
and settle the intestate estate (Rule 80). 21, 1979).
3. Administrator with a will annexed – the 4. The executor of an executor cannot
one appointed by the court in cases when, administer the estate of the first testator (Sec. 2).
although there is a will, the will does not appoint
any executor, or if appointed, said person is
Executor and Administrator; Distinguished
either incapacitated or unwilling to serve as such
(Rule 79, Section 1). Executor Administrator
Nominated by the Appointed by the court

testator and appointed in case the testator did

Executor Administrator The right given by law to a person to dispose of

his property when he dies.
by court. not appoint an
executor or if the Letters Testamentary
executor refused
An authority issued to an executor named in the
appointment
will to administer the estate (Festin, p. 46).
(administrator with a
will annexed) or if the Letters of Administration
will was disallowed or
if a person did not An authority issued by the court to a competent
make a will (intestate person to administer the estate of the deceased
succession). who died intestate (Festin, p. 46).
Letters of Administration with a Will Annexed
Must present will to
the court within 20 An authority issued by the court to a competent
days after he knows of person to administer the estate of the deceased if
the death of testator or the executor named in the will refused to accept
after he knew that he the office or if the person name is incompetent.
was appointed as
executor (if he SECTION 5. WHERE SOME CO-EXECUTORS
No such duty.
obtained such DISQUALIFIED, OTHERS MAY ACT
knowledge after death SECTION 6. WHEN AND TO WHOM LETTERS
of testator), unless the OF ADMINISTRATION GRANTED
will has reached the
court in any manner. Order of preference in granting letters of
administration
Testator may provide
that he may serve 1. The surviving husband or wife or the next
without a bond (but of kin, or both in the discretion of the court, or to
Required unless such person as such surviving spouse or next of
court may direct him to
exempted by law kin, requests to have appointed, if competent
give a bond
and willing to serve (surviving spouse or next of
conditioned only to
kin or their nominee);
pay debts).
Compensation may be Next of Kin

provided for by the Compensation is
testator in the will, governed by Sec. 7, Those persons who are entitled by law to receive
otherwise Sec. 7, Rule Rule 85. the decedent’s property (Regalado, p. 46).
85 will be followed.
2. If the surviving spouse or the next of kin or
the person selected by them be incompetent or
SECTION 2. EXECUTOR OF EXECUTOR NOT unwilling to serve, or if the surviving spouse or
TO ADMINISTER ESTATE 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
SECTION 3. MARRIED WOMEN MAY SERVE serve;
However, neglect of such persons to apply for

SECTION 4. LETTERS TESTAMENTARY letters administration for 30 days after death is
ISSUED WHEN WILL ALLOWED not sufficient to exclude the widow from the
administration of the estate of her husband.
There must be a very strong case to justify the
Testamentary Privilege

exclusion of the widow from the administration (Dalisay, etc. v. Consolacion, etc., G.R. No. L-
(Herrera, p. 84). 44702, July 30, 1979).
3. If there is no such creditor competent and RULE 79

willing to serve, it may be granted to such other
person as the court may select (stranger). O PPOSING I SSUANCE OF L ET T ERS
Note: As a general rule, the court cannot set
T EST AM ENT ARY , P ET IT ION AND
aside the order of preference under Sec. 6 Rule C ONT EST FOR L ET T ERS OF
78. ADM INIST RAT ION
Exception: In case the persons who have the
preferential right to be appointed under the rule SECTION 1. OPPOSITION TO ISSUANCE OF
are not competent or are unwilling to serve, LETTERS TESTAMENTARY. SIMULTANEOUS
administration or they neglect to apply for letters of PETITION FOR ADMINISTRATION
administration for 30 days after the decedent’s
death, the letters may be granted to such other The main issue is the determination of the person
person as the court may appoint. who is rightfully entitled to administration.
The order of appointment of regular administrator Persons to oppose the issuance of letters: Any
is final and appealable. person interested in the will.
In order to be a party, a person must have material

Basis for the preferential right: The underlying and direct, and not one that is only indirect or
assumption is that those who will reap the benefits contingent, interest (Saguinsun v. Lindayag, G.R.
of a wise, speedy and economical administration No. L-17759, December 17, 1962).
of the estate or on the other hand, suffer the
consequences of waste, improvidence or The opposition may be accompanied by a Petition
for the issuance of Letters of Administration with
mismanagement, have the higher interest and the will annexed.
most influential motive to administer the estate
correctly (Gonzales v. Aguinaldo, G.R. No. 74769
September 28, 1990). SECTION 2. CONTENTS OF A PETITION FOR
LETTERS OF ADMINISTRATION
Note: Co-administrators may be appointed for the 1. The jurisdictional facts;
benefit of the estate and those interested therein 2. The names, ages, residences of heirs and
(Matute v. Court of Appeals, G.R. No. 26751, the names and ages of the creditors;
January 31, 1969). 3. The probable value and character of the
estate; and
Scope or limits of administration: The general 4. The name of the person for whom letters
rule is that administration extends only to the are prayed for.
assets of a decedent found within the state or No defect in the petition shall render void the
country where it was granted, so that an issuance of the letters of administration.
administrator appointed in one state or country
has no power over the property in another state or
country (Leon v. Manufacturers Life Insurance
Co., G.R. No. L-3677, November 29, 1951). SECTION 3. COURT TO SET TIME FOR
HEARING. NOTICE THEREOF
Note: A party indebted to the decedent’s estate
Publication for 3 weeks and notice to heirs,
cannot compatibly perform the duties of an
creditors and other persons believed to have an
administrator and should not be appointed as such
interest in the estate is required before hearing.
(Lim v. Diaz-Millarez, G.R. No. L-17633, October
19, 1966). Where such fact of indebtedness was Note: Sec. 3 of this Rule is jurisdictional. Where
only subsequently discovered after the no notice as required by this section has been
administrator had been duly appointed, he should
given to persons believed to have an interest in
not be removed, absent any other lawful ground
the estate of the deceased person, the proceeding

for the settlement of the estate is void and should where the decedent was domiciled (See Perkins v.
be annulled (Eusebio v. Valmores, G.R. No. L- Benguet Cosolidated, Inc., Gr No. L-23145,
7019, May 31, 1955). November 29,1968).
SECTION 4. OPPOSITION TO PETITION FOR When may a probate court appoint a special
ADMINISTRATION administrator?
Grounds for Opposition: 1. Delay in granting of letters by any cause
including appeal in the probate of the will;
1. Incompetence; 2. Executor is a claimant of the estate that he
2. Preferential right of the heir under Sec. 6, represents (Section 8, Rule 86).
Rule 78.
Note: In the second instance, the administrator

SECTION 5. HEARING AND ORDER FOR shall have the same powers as that of a general
LETTERS TO ISSUE
administrator but only insofar as the claim of the
Letters of Administration shall issue if it is executor is concerned.
proven that: Order of Appointment (Discretionary)
1. Notice as required in Sec. 3 was given; and The preference accorded by Sec. 6 of Rule 78 of
2. The decedent left no will; or there is no
the Rules of Court to a surviving spouse refers to
competent and willing executor.
the appointment of a regular administrator, not to
that of special administrator, and that the order
SECTION 6. WHEN LETTERS OF appointing the latter lies within the discretion of the
ADMINISTRATION GRANTED TO ANY probate court, and is not appealable (Pijuan v. De
APPLICANT Gurrea, G.R. No. L-21917, November 29, 1966).
Letters can be granted to any person or any other

applicant even if other competent persons are
Regular Special
present if the latter fail to claim their letters when
Administrator Administrator
notified by the court.
Order of Appointment Order of Appointment
RULE 80 is final and is is interlocutory and is
appealable. not appealable.
S PECIAL ADM INIST RAT OR
One of the obligations
Cannot pay debts of
SECTION 1. APPOINTMENT OF SPECIAL is to pay the debts of
the estate.
ADMINISTRATOR the estate.
Special Administrator Appointed when Appointed when there

decedent died is delay in granting
A representative of the decedent appointed by the intestate or did not letters testamentary or
probate court to care for and preserve his estate appoint an executor in administration or when
until an executor or general administrator is the will or will was the executor is a
appointed (Fule v. CA, G.R. No. L-40502, disallowed. claimant of the estate.
November 29, 1976).
Ancillary Administrator
SECTION 2. POWERS AND DUTIES OF
A person appointed by the court in a state where SPECIAL ADMINISTRATOR
the descendant was not domiciled to manage the
assets and liabilities and to oversee the 1. Possess and charge of the goods, chattels,
distribution of decedent’s estate in that state. Such rights, credits, and estate of the deceased and
preserve the same;
an administrator usually works as an adjunct to the
2. Commence and maintain suit for the estate;
executor or administrator appointed in the state 3. Sell only:

a. Perishable property; and deceased (De Gala v. Gonzales, et al., G.R. No.
b. Other property ordered sold by the court; L-30289, March 26, 1929). Such suit must await
4. Pay debts only as may be ordered by the the appointment of a regular administrator.
court.
The special administrator also has the duty to RULE 81

submit an inventory and to render an accounting
of his administration as required by the terms of
B ONDS OF E XECUT ORS AND
his bond (Sec 4, Rule 81). ADM INIST RAT ORS
SECTION 3. WHEN POWERS OF SPECIAL SECTION 1. BOND TO BE GIVEN BEFORE

ADMINISTRATOR CEASE. TRANSFER OF ISSUANCE OF LETTERS. AMOUNT.
EFFECTS. PENDING SUITS CONDITIONS.
When does the power of a special
administrator cease? After the questions causing When bond is filed: Before an executor or
the delay are resolved and letters are granted to administrator enters upon the execution of his
regular executor or administrator. trust.
Is an appointment of a special administrator
Amount: To be fixed by the court.
appealable? No, as expressly provided for in Sec.
1, Rule 109. Purpose: It is intended as an indemnity to the
creditors, the heirs and the estate. It shall be
The only remedy against the appointment of a
accountable for any breach of duty that may be
special administrator is Certiorari under Rule 65.
done by the administrator or executor. The liability
Certiorari, however, requires nothing less than
may be enforced by motion or in a separate civil
grave abuse of discretion (Tan v. Gedorio, Jr., G.R. action (Festin, p.56).
No. 166520, 14 March 2008). However, there
must be a Temporary Restraining Order or Conditions of the bonds:
Injunction Order to stop the Special Administrator
from assuming the position (Sec. 7, Rule 65). 1. Make within 3 months a true and complete
inventory of the property of the deceased which
An appointment of a regular administrator is came to his knowledge and possession;
appealable because it is a final order (De Borja v. 2. Administer the estate and pay and
Tan, G.R. No. L-6476, November 18, 1955). There discharge all debts, legacies and charges,
are important duties devolving on a regular including dividends declared by the court from
the proceeds;
administrator which a special administrator cannot
3. Render a true and just account within one
perform, and there are many actions to be taken year and when required by the court;
by the court which could not be accomplished 4. Perform all orders of the court.
before a regular administrator is appointed
(Reynoso v. Santiago, G.R. No. L-3039,
December 29, 1949). Administrator’s Bond – Statutory Bond
Conditions prescribed by statute forms part of
Note: A special administrator is appointed only for bond agreement.
a limited time and for a specific purpose. Naturally,
because of the temporary and special character of Terms and effectivity of bond do not depend on
his appointment, it was deemed by the law not payment of premium and does not expire until the
advisable for any party to appeal from said administration is closed. As long as the probate
temporary appointment (De Borja v. Tan, supra). court retains jurisdiction of the estate, the bond
contemplates a continuing liability (Luzon Surety v.
While a special administrator may commence and Quebrar, G.R. No. L-40517, January 31, 1984).
maintain suits under Sec. 2, he cannot be sued by
a creditor for the payment of the debts of the

SECTION 2. BOND OF EXECUTOR WHERE Whether the intestate proceeding already

DIRECTED IN WILL WHEN FURTHER BOND commenced should be discontinued and a new
REQUIRED proceeding under a separate number and title
should be constituted is entirely a matter of form
Even if the testator has directed in his will that his
and lies within the sound discretion of the court
executor serve without a bond, the court may still (Reynoso v. Santiago, G.R. No. L-3039,
require him to file a bond conditioned only to pay December 29, 1949).
the debts of the testator.
Note: Testate proceedings take precedence over
intestate proceedings for the same estate.
SECTION 3. BONDS OF JOINT EXECUTORS
AND ADMINISTRATORS First court – intestate; second court – testate:
SECTION 4. BOND OF SPECIAL As a general rule, the court with which the petition
ADMINISTRATOR is first filed must take cognizance of the settlement
of the intestate estate. However, if it learns
Conditions of the bonds thereafter that another court has before it a
petition for the probate of the decedent’s will, it
1. Make and return a true inventory;
2. Render accounting when required by court; may hold the petition before it in abeyance and
and defer to the second court where the probate
3. Deliver the estate to the person appointed proceedings are pending and if the will is admitted
executor or administrator or other authorized to probate therein, it will definitely decline to take
persons. cognizance (Cuenco v. Court of Appeals, G.R. No.
L-24742, Oct. 26, 1973).
As long as the probate court retains jurisdiction of Will discovered; administrator already
the estate, the bond contemplates a continuing appointed: If during the pendency of intestate
liability (Luzon Surety v. Quebrar, Gr No. L-40517, proceedings, a will of the decedent is discovered,
January 31, 1984). proceedings for the probate of the will shall
replace the intestate proceedings even if an
administrator had already been appointed therein
(Cuenco v. Court of Appeals, supra). However, the
RULE 82 discovery of a document purporting to be the last
will and testament of a deceased, after the
REVOCAT ION OF ADM INIST RAT ION , appointment of an administrator of the estate of
D EAT H , RESIGNAT ION AND the latter, upon the assumption that he or she had
died intestate, does not ipso facto nullify the letters
REM OVAL OF E XECUT ORS AND of administration already issued or even authorize
ADM INIST RAT ORS the revocation thereof, until the alleged will has
been proved and allowed by the court (Advincula v.
SECTION 1. ADMINISTRATION REVOKED IF Teodoro, G.R. No. L-9282, May 31, 1956).
WILL DISCOVERED. PROCEEDINGS
THEREUPON SECTION 2. COURT MAY REMOVE OR
ACCEPT RESIGNATION OF EXECUTOR OR
When letters of administration revoked and ADMINISTRATOR. PROCEEDINGS UPON
powers cease: When the decedent’s will is DEATH, RESIGNATION OR REMOVAL
allowed and proved by the court after the issuance
of letters of administration. Grounds for removal of executor or
administrator (RSPAI)
Duty of administrator upon revocation of the
letters 1. Neglect to perform an order or judgment of
the court or a duty expressly provided by these
1. Surrender the letters to the court; and rules;
2. Render his account within such time as the 2. Absconding; or
court may direct.

3. Insanity or incapability or unsuitability to SECTION 4. POWERS OF NEW EXECUTOR OR

discharge the trust; ADMINISTRATOR. RENEWAL OF LICENSE TO
4. Neglect to render accounts (within 1 year SELL REAL ESTATE
and when required by the court);
5. Neglect to settle estate according to these Power of the new executor or administrator
rules.
1. Collect and settle the estate not
administered;
Other Valid Grounds for Removal of an 2. Prosecute or defend actions commenced
Administrator: by or against the former executor or
administrator; and
1. Adverse interest of an administrator to that 3. Have execution on judgments recovered in
of the estate (Garcia v. Vasquez, G.R. No. L- the name of former executor or administrator.
26884, April 30, 1970).
2. Physical inability and consequent
unsuitability to manage the estate (De Borja v. Authority to sell previously given to the former
Tan, G.R. No. L-6476, November 18,, 1955). executor or administrator may be renewed without
3. False representation by an administrator in notice or hearing.
securing his appointment (Cobarrubias v. Dizon,
G.R. No. L-225, February 26, 1946). RULE 83
The order of removal is appealable (Borromeo v.

I NVENT ORY AND APPRAIS AL
Borromeo, G.R. No. L-6363, September 15, 1955). P ROVISION FOR S UPPORT OF
Note: Grounds are not exclusive.
F AM ILY
The position of the administrator is one of

confidence and when the court finds that the SECTION 1. INVENTORY AND APPRAISAL TO
administrator is not entitled to such confidence, it BE RETURNED WITHIN THREE MONTHS
is justified in withdrawing the appointment and
giving no valid efficacy thereto (Cobarrubias v. Inventory and appraisal must be made within 3
Dizon, supra). months from the grant of letters testamentary or of
administration.
Examples of valid removal of administrator
The three-month period is not mandatory. The fact
a. Disbursement of funds of the estate without that an inventory was filed after the three-month
judicial approval; period would not deprive the probate court of
b. False representation by an administrator in jurisdiction to approve it. However, an
securing his appointment; administrator’s unexplained delay in filing the
c.Holding an interest adverse to that of the estate
inventory may be a ground for his removal (Sebial
or by his conduct shows unfitness to discharge
v. Sebial, G.R. No. L-23419, June 27, 1975).
the trust;
d. Physical inability and consequent Approval of an inventory is not a conclusive
unsuitability to manage the estate. determination of what assets constituted the
decedent’s estate and of the valuation thereof.
Degree of diligence required: An administrator is Such determination is only provisional and a prima
required to exercise reasonable diligence and act facie finding of the issue of ownership.
in entire good faith in the performance of that trust. Property claimed by third persons may be included
in the inventory as part of the assets of the estate
and the probate court may order such inclusion,
SECTION 3. ACTS BEFORE REVOCATION, but such order of the probate court is only a prima
RESIGNATION OR REMOVAL TO BE VALID facie determination and does not preclude the
claimants from maintaining an ordinary civil action
Lawful acts of an administrator or executor before
the revocation, resignation, or removal are valid. for the determination of title (Gonzales v. CFI
Manila, G.R. No. L-34395, May 19, 1981).

SECTION 2. CERTAIN ARTICLES NOT TO BE SECTION 1. EXECUTOR OR ADMINISTRATOR

INVENTORIED TO HAVE ACCESS TO PARTNERSHIP BOOKS
AND PROPERTY. HOW RIGHT ENFORCED
1. Wearing apparel of the surviving spouse
and minor children; SECTION 2. EXECUTOR OR ADMINISTRATOR
2. Marriage bed and bedding; TO KEEP BUILDINGS IN REPAIR
3. Provisions and other articles as will
necessarily be consumed in the subsistence of SECTION 3. EXECUTOR OR ADMINISTRATOR
the family of the deceased. TO RETAIN WHOLE ESTATE TO PAY DEBTS
AND TO ADMINISTER ESTATE NOT WILLED
SECTION 3. ALLOWANCE TO WIDOW AND Powers of the executor or administrator of the
FAMILY estate (BERIP)
Allowance 1. To have access to, and examine and take
copies of books and papers relating to the
Refers to the monetary advances which are partnership in case of a deceased partner;
subject to collation and are likewise deductible 2. To examine and make invoices of the
from their share in the estate of the decedent. property belonging to the partnership in case of
a deceased partner;
Persons entitled to allowance during 3. To maintain in tenantable repair, houses
proceedings and other structures and fences and to deliver
1. Legitimate surviving spouse (Nepomuceno the same in such repair to the heirs or devisees
v. Court of Appeals, G.R. No. L-62952, October when directed so to do by the court;
9, 1985); and 4. To make improvements on the properties
2. Children of the decedent. under administration with the necessary court
approval except for necessary repairs (Herrera,
p. 121);
Note: According to Art. 188 of the Civil Code, the 5. To possess and manage the estate when
children need not be minors or incapacitated to be necessary:
entitled to allowance (Santero v. CFI of Cavite, a. For the payment of debts; and
G.R. No. 61700-03, Sept. 24, 1987). b. For payment of expenses of administration.
Some restrictions on the power of an

Grandchildren are not entitled to allowance under administrator or executor (cannot ABS-LCP)
Rule 83 (Ruiz v. Court of Appeals, G.R. No.
118671, January 29, 1996). 1. Cannot acquire by purchase, even at public or
judicial auction, either in person or mediation of
another, the property under administration Art.
1491, NCC);
When liabilities exceed the assets of the estate, 2. Cannot borrow money without authority of the
his widow and children are not entitled to support court;
pending the liquidation of the intestate estate, on 3. Cannot speculate with fund under administration
the ground that such support, having the character (Sec. 2, Rule 85);
of an advance payment, is to be deducted from 4. Cannot lease the property for more than one
the respective share of each heir during year (Art. 1878, NCC);
distribution (Wagner v. Moore, G.R. No. L-25842,
March 18, 1927). A view is held, however, that the aforesaid
provision of Art. 1878 of the Civil Code on
RULE 84 agency should not apply to leases entered into
by an executor or administrator, under the theory
G ENERAL P OWERS AND D UT IES OF that they represent not only the estate but also
E XECUT ORS AND ADM INIST RAT ORS the parties interested therein, that they are
required to file a bond and that their acts are
subject to specific provisions of law and orders

of the probate court, which circumstances are SECTION 4. ACCOUNTABLE FOR INCOME
not true with respect to agents (Regalado, p. 65). FROM REALTY USED BY HIM
5. Cannot continue the business of the deceased If executor or administrator uses or occupies real
unless authorized by the court (Sec. 1, Rule 84); estate under administration, he must account for it.
6. Cannot profit by the increase or decrease in the
value of the property under administration (Sec. SECTION 5. ACCOUNTABLE IF HE NEGLECTS
2, Rule 85). OR DELAYS TO RAISE OR PAY MONEY
When accountable:
Note: The right of an executor or administrator to
1. If an executor or administrator:
the possession and management of the real and
a. Neglects or unreasonably delays to raise
personal properties of the deceased is not money, by collecting the debts or selling the
absolute and can only be exercised so long as it is real or personal estate of the deceased; or
necessary for the payment of the debts and b. Neglects to pay over the money he has in
expenses of the administration (Estate of Hilario his hands; and
Ruiz v. Court of Appeals, G.R. No. 118671, 2. The value of the estate is lessened; or
January 29, 1996). 3. Unnecessary cost or interest accrues; or
4. The persons interested suffer loss.
RULE 85 SECTION 6. WHEN ALLOWED MONEY PAID AS

COSTS
ACCOUNT ABILIT Y AND
C OM PENSAT ION OF E XECUT ORS SECTION 7. WHAT EXPENSES AND FEES
AND ADM INIST RAT ORS ALLOWED EXECUTOR OR ADMINISTRATOR.
NOT TO CHARGE FOR SERVICES AS
SECTION 1. EXECUTOR OR ADMINISTRATOR ATTORNEY. COMPENSATION PROVIDED BY
CHARGEABLE WITH ALL ESTATE AND WILL CONTROLS UNLESS RENOUNCED
INCOME
General Rule: The executor or administrator is

Expenses of Administration
accountable for the whole estate of the deceased.
Exception: He is not accountable for properties Those necessary for the management of the
which never came to his possession. property, for protecting it against destruction or
deterioration, and possibly for the production of
fruits.
Exception to the Exception: When through
untruthfulness to the trust or his own fault or for Compensation if there is no provision in the
lack of necessary action, the executor or will
administrator failed to recover part of the estate
which came to his knowledge. 1. PhP4.00 a day for the time actually and
necessarily employed; or
SECTION 2. NOT TO PROFIT BY INCREASE 2. Commission.
OR LOSE BY DECREASE IN VALUE 3. A greater sum may be allowed if:
a. The estate is large;
Administrator or executor shall not profit by the
b. The settlement has been attended with
increase of the estate nor be liable for any
decrease which the estate, without his fault, might great difficulty;
have sustained. c.The settlement has required a high degree of
capacity of the executor or administrator.
SECTION 3. WHEN NOT ACCOUNTABLE FOR

Attorney’s fees: An administrator who is a lawyer
DEBTS DUE ESTATE
may not recover attorney’s fees from the estate;
The executor or administrator is not accountable if his compensation is fixed by the rule but such
debt remains uncollected without his fault. compensation is in the nature of executor’s or

administrator’s commissions, and never as SECTION 9. EXAMINATIONS ON OATH WITH

attorney’s fees. A lawyer of an administrator or RESPECT TO ACCOUNT
executor may not charge the estate for his fees,
Examination may be dispensed with when:
but rather, he must charge his client (the executor
or the administrator). 1. No objection is made to the allowance of
the account; and
Where the administrator is himself the counsel for 2. Its correctness is satisfactorily established
the heirs, it is the latter who must pay therefor. by competent proof.
When a lawyer has rendered legal services to the
executor or administrator to assist him in the The heirs, legatees, distributees and creditors
execution of his trust, his attorney’s fees may be have the same privilege of being examined.
allowed as expenses of administration. The estate,
is, however, not directly liable for his fees, the SECTION 10. ACCOUNT TO BE SETTLED ON
liability for the payment resting primarily on the NOTICE
executor or administrator. If the administrator had SECTION 11. SURETY ON BOND MAY BE
paid the fees, he would be entitled to PARTY TO ACCOUNTING
reimbursement from the estate (Occena v.
Marquez, G.R. No. L-27396, September 30, 1974).
RULE 86
Procedure for collection of attorney’s fees C LAIM S AGAINST E ST AT E
1. Request the administrator to make SECTION 1. NOTICE TO CREDITORS TO BE
payment and file an action against him in his ISSUED BY COURT
personal capacity and not as administrator
should he fail to pay; or Money Claims
2. Petition in the testate or intestate
proceeding asking the court, after notice to all Claims for money, debt or interest thereon upon a
persons interested, to allow his claim and direct liability contracted by the decedent before his
the administrator to pay it as an expense of death (Festin, p. 75).
administration (Herrera, p.123). When may the court issue notices to creditors
to file their claims? Immediately after granting
SECTION 8. WHEN EXECUTOR OR letters testamentary or of administration.
ADMINISTRATOR TO RENDER ACCOUNT
Claims arising after his death cannot be presented
General Rule: Within one year from the time of except for:
receiving letters testamentary or letters of 1. Funeral expenses; and
administration. 2. Expenses of the last sickness of the
decedent.
Exception: An extension of time is allowed by the
court for presenting claims against, or paying the
Claims for taxes (inheritance and estate) due and
debts of the estate, or for disposing of the estate;
assessed after the death of the decedent need not
and he shall render such further accounts as the
be presented in the form of a claim. The court in
court may require until the estate is wholly settled.
the exercise of its administrative control over the
The fact that the final accounts had been executor or administrator may direct the latter to
approved does not divest the court of jurisdiction pay such taxes (Pineda v. CFI of Tayabas, G.R.
to require supplemental accounting for, aside from No. L-30921, February 16, 1929).
the initial accounting, the Rules provide that “he
The heirs, even after distribution, are liable for
shall render such further accounts as the court
inheritance and estate taxes (Government of the
may require until the estate is wholly settled.”
Philippine Islands v. Pamintuan, G.R. No. L-33139,
(Tumang v. Laguio, G.R. No. L-50277, February
October 11, 1930).
14, 1980).

SECTION 2. TIME WITHIN WHICH CLAIMS However, a creditor barred by the Statute of Non-
SHALL BE FILED claims may file a claim as a counterclaim in any
suit that the executor or administrator may bring
Statute of Non-Claims
against such creditor (Sec 5).
The period fixed by the rule for the filing of the Good excuse for late filing
claims against the estate.
The pendency of the action before the regular
Reason for the rule: For the speedy settlement of
courts was cited as a good excuse for the
the affairs of the deceased and the early delivery
tardiness of the claim (Echaus v. Blanco, G.R. No.
of the property to the distributees, legatees or L-30453, December 4, 1989).
heirs.
SECTION 3. PUBLICATION OF NOTICE TO
Where to File Claims: All money claims must be CREDITORS.
entertained by Settlement Court regardless of
amount. (Sec. 1) In other words, B.P. Blg. 129 is Publication of the notice for 3 successive weeks in
not applicable. a newspaper of general circulation in the province
and post the same in 4 public places in the
When to file claims
province and in 2 public places in the municipality
General Rule: Within the time fixed in the notice where the decedent last resided.
which shall not be more than 12 months nor less SECTION 4. FILING COPY OF PRINTED
than 6 months after the date of the first publication. NOTICE.
Otherwise, they are barred forever.
10 days after publication and posting.
Even if the testator acknowledged the debt in his
will and instructed the executor to pay the debt,
the statute of non-claims must still be complied
Note: A notice to creditors to file their claims is not
with; otherwise the claim may also be barred.
proper if only a special administrator has been
Exception: Belated claims appointed as a special administrator is generally
not empowered to pay the debts of the deceased
(Sec. 2, Rule 80) and his bond, unlike that of a
Belated Claims regular administrator, is not conditioned upon the
Claims not filed within the original period fixed by payment of such debts (Regalado, p. 74).
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 SECTION 5. CLAIMS WHICH MUST BE FILED
is entered, the court may, for cause shown and on UNDER NOTICE. IF NOT FILED, BARRED;
such terms as are equitable, allow such claim to EXCEPTIONS.
be filed within a time not exceeding 1 month from
the order allowing belated claims. Claims referred to under this section refer to
claims for the recovery of money and which are
not secured by a lien against the property of the
Note: The statute of non-claims supersedes the estate (Olave v. Canlas, G.R. No. L-12709,
statute of limitations insofar as the debts of February 28, 1962).
deceased persons are concerned because if a
creditor fails to file his claim within the time fixed If the claim is secured; apply Sec. 7 of this Rule.
by the court in the notice, then the claim is barred Claims which should be filed under the Statute
forever. However, both statute of non-claims and of Non-claims
statute of limitations must concur in order for a
creditor to collect; thus, a creditor cannot claim, 1. Money claims, debts incurred by deceased
even if within the statute of non-claims, if his claim during his lifetime arising from contract:
has already prescribed under the statute of a. Express or implied;
limitations. b. Due or not due;
c.Absolute or contingent.
2. Claims for funeral expenses;

3. For the last illness of the decedent; Claims

4. Judgment for money against decedent. Actions which
Extinguished by
Survive
Death
Note: The enumeration is exclusive (Festin, p. 75). Claim is not
extinguished by
A money claim arising from a crime of quasi-delict Personal to either of
death but shall be
committed by the decedent is not included in the the parties and is
prosecuted as a
concept of claims which have to be filed under this extinguished by
money claim against
Rule but should be the subject of an action against death
the estate of the
the executor or administrator (Sec. 1, Rule 87) or deceased
against the heirs (Belamala v. Polinar, G.R. No. L-
24098, November 18, 1967). Examples: legal
separation,
annulment of Example: contractual
Unpaid taxes are not covered by the statute of marriage, money claim
non- claims as these are monetary obligations declaration of nullity
created by law (Vera, et al. v. Fernandez, et al., of marriage
G.R. No. L- 31364, March 30, 1979).
Where the defendant dies while the action for a

Absolute Claim sum of money is pending against him in the Court
of Appeals, he shall be substituted therein by his
Such a claim as, if contested between living legal representative but the final judgment of the
persons, would be proper subject of immediate appellate court shall not be enforceable by a writ
legal action and would supply a basis of a of execution but should be filed in the probate
judgment for a sum certain. court as a money claim in accordance with Sec. 5
of Rule 86 (Paredes, et al. v. Moya, G.R. No. L-
38051, December 26, 1973). If none of the heirs is
Contingent Claim willing to be substituted defendant, the creditor
has to procure the appointment of an
A conditional claim or claim that is subject to the
executor/administrator (Sec. 16, Rule 3).
happening of a future uncertain event.
If a final judgment had already been rendered
against the decedent prior to his death, but without
It has reference to the uncertainty of liability, and levy on execution having been effected against his
not to uncertainty of collection (Gaskell v. Tan Sit, property, such judgment must also be filed as a
G.R. No. 18405, September 23, 1922). claim against the estate in the manner provided for
by this Rule. If levy has already been made before
his death, execution shall proceed (Sec. 7 [c],
Claims not yet due or contingent may be approved Rule 39).
at their present value. SECTION 6. SOLIDARY OBLIGATION OF
DECEDENT
A deficiency judgment is a contingent claim and Claim should be filed against decedent as if he
therefore, must be filed with the probate court were the only debtor without prejudice on the part
where the settlement of the deceased is pending, of the estate to recover contribution from the other
within the period fixed for the filing of claims (First debtor.
National City Bank of New York v. Cheng Tan, Joint obligation of decedent
G.R. No. L-14234, February 28, 1962).
The claim must be confined to the portion
belonging to the decedent.

SECTION 7. MORTGAGE DEBT DUE FROM

ESTATE
SECTION 9. HOW TO FILE A CLAIM.
Creditor holding a claim secured by a CONTENTS THEREOF. NOTICE TO EXECUTOR
mortgage or other collateral security OR ADMINISTRATOR
Alternative remedies: (AFR) How to file a claim:
1. Abandon or waive the security and 1. Deliver the claim with the necessary
prosecute his claim against the estate and share vouchers to the clerk of court;
in the general distribution of the assets of the 2. Serve a copy thereof on the executor or
estate; administrator;
2. Foreclose his mortgage or realize upon his 3. If the claim is due, it must be supported by
security by action in court making the executor an affidavit stating the amount due and the fact
or administrator a party defendant and if there is that there has been no offsets;
judgment for deficiency, he may file a claim 4. If the claim is not due or contingent, it must
(contingent) against the estate within the statute be accompanied by an affidavit stating the
of non-claims; particulars thereof.
3. Rely solely on his mortgage and foreclose
(judicially or extrajudicially) the same at
anytime within the period of the statute of SECTION 10. ANSWER OF EXECUTOR OR
limitations but he cannot be admitted as creditor ADMINISTRATOR. OFFSETS
and shall not receive in the distribution of the
other assets of the estate. Executor shall file his answer to the claim within
15 days after service of a copy of the claim.
Note: The mortgage creditor can avail of only one

The executor or administrator may interpose any
of the three remedies and if he fails to recover counterclaim in offset of a claim against the estate.
under that remedy he can not avail of any of the Said counterclaim is regarded as a compulsory
other two remedies (Bachrach Motor Co., Inc., v. counterclaim as the failure to file the same shall
Icarangal, G.R. No. L-45350, May 29,1939). bar the claim forever.
SECTION 11. DISPOSITION OF ADMITTED

The rule reserves a right to the executor or
CLAIM
administrator of an estate to redeem a mortgaged
or pledged property of a decedent which the The heir, legatee or devisee may oppose the claim
mortgage or pledgee has opted to foreclose, admitted by the executor or administrator.
instead of filing a money claim with the probate
court, under said Section 7 of Rule 86. While the
redemption is subject to the approval of the SECTION 12. TRIAL OF CONTESTED CLAIM
probate court, the exercise of the right is
discretionary upon the said executor or The court may refer the claim to a commissioner.
administrator and may not be ordered by the
probate court upon its own motion (Manalansan v.
Castaneda, G.R. No. L-43607, June 27, 1978). SECTION 13. JUDGMENT APPEALABLE
Judgment against the executor and administrator

shall not create any lien upon the property of the
SECTION 8. CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST AN ESTATE estate or does not constitute a specific lien which
may be registered on such property.
This is one of the instances where a special
Judgment of a probate court approving or
administrator is appointed. The special
disapproving a claim is appealable.
administrator will have authority to act only with
respect to the claim of the regular administrator or
the executor (Regalado, p. 83).

Note: The mode of appeal is record on appeal and SECTION 2. EXECUTOR OR ADMINISTRATOR
must be filed within 30 days from notice of MAY BRING OR DEFEND ACTIONS WHICH
judgment. SURVIVE
SECTION 14. COSTS SECTION 3. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
Before distribution is made or before any residue
RULE 87 is known, the heirs and devisees have no cause of
action against the executor or administrator for
ACT IONS BY AND AGAINST recovery of the property left by the decedent.
E XECUT ORS AND
General Rule: The heirs have no legal standing to
ADM INIST RAT ORS sue for the recovery of property of the estate
SECTION 1. ACTIONS WHICH MAY AND during the pendency of administration proceedings.
WHICH MAY NOT BE BROUGHT AGAINST
Exceptions:
EXECUTOR AND ADMINISTRATOR
1. If the executor or administrator is unwilling
Actions which may be commenced directly against
the executor or administrator: or refuses to bring suit;
2. When the administrator is alleged to have
1. Recovery of real or personal property or
participated in the act complained of and he is
any interest therein from the estate;
made a party defendant;
2. Enforcement of a lien thereon;
3. When there is no appointed administrator
3. Action to recover damages for any injury to
(see Rioferio, et al. v. Court of Appeals, G.R. No.
person or property, real or personal (tortuous
129008, January 13, 2004).
acts).
These are actions that survive the death of the SECTION 4. EXECUTOR OR ADMINISTRATOR
decedent. MAY COMPOUND WITH DEBTOR
An action for revival of money judgment may be With the approval of the court, an executor or
filed against the administrator to preempt administrator may compound with the debtor of
prescription of judgment (Romualdez v. Tiglao, the deceased for a debt due, and may give a
G.R. No. L-51151, July 24, 1981). discharge of such debt on receiving a just dividend
of the estate of the debtor.
Rule 87, Sec. 1 Rule 86, Sec. 5
Actions that may be Actions that may be SECTION 5. MORTGAGE DUE ESTATE MAY BE
commenced directly commenced against FORECLOSED
against the executor the estate of the
and administrator deceased Note: There is no need for a special authority
from the court for the administrator or executor to
1. Money claims, debts bring an action for foreclosure on behalf of the
1. Recovery of real/ incurred by the estate (Calimbas v. Paguio, G.R. No. L-22197,
personal property (or deceased during his December 2, 1924).
any interest therein) lifetime arising from
from the estate; contract;
2. 2.
3. Enforcement of a lien 3. Claims for funeral SECTION 6. PROCEEDINGS WHEN PROPERTY
thereon; expenses or for the CONCEALED, EMBEZZLED, OR
4. last illness of the FRAUDULENTLY CONVEYED
5. Action to recover decedent;
The court may cite any person suspected of
damages arising from 4.
tort. 5. Judgment for money having concealed, embezzled, or conveyed away
against decedent. any of the money, goods, or chattels of the
deceased, or having in his possession or
knowledge any deed, contract, bond, or other

writing which contains evidence of or tends to Requisites Before Action may be filed by
disclose the right, title, interest, or claim of the Creditors: (D-FAN LaBaN)
deceased to real or personal estate, or the last will 1. There is a deficiency of assets in the hands
and testament of the deceased, to appear before it of an executor or administrator for the payment
and be examined under oath; if such person of debts and expenses of administration;
2. The deceased in his lifetime had made or
refuses to appear, or to answer on such
attempted to make a fraudulent conveyance of
examination or such interrogatories, the court may
his property or had so conveyed such property
punish him for contempt, and may commit him to that by law the conveyance would be void as
prison. against his creditors;
The interrogatories put to any such person, and 3. The subject of the attempted conveyance
would be liable to attachment in his lifetime;
his answers thereto, shall be in writing and filed
4. The executor or administrator has shown
with the clerk’s office. no desire to file action or failed to institute the
Purpose: To elicit information or to secure same within a reasonable time;
evidence from those persons suspected of having 5. Leave is granted by the court to the
possession or knowledge of property or will of the creditor to file the action;
6. A bond is filed by the creditor;
deceased, or of having concealed, embezzled or
7. The action by the creditor is in the name of
conveyed away any properties of the deceased the executor or administrator.
(Herrera, p. 171).
SECTION 7. PERSON ENTRUSTED WITH Note: The last three requisites are unnecessary
ESTATE COMPELLED TO RENDER ACCOUNT
where the grantee is the executor or administrator
SECTION 8. EMBEZZLEMENT BEFORE himself, in which event, the action should be in the
LETTERS ISSUED name of all the creditors (Herrera, p. 175).
The responsible person shall be liable to an action

in favor of the executor or administrator of the RULE 88
estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the P AYM ENT OF T HE D EBT S OF T HE
benefit of the estate. E ST AT E
SECTION 9. PROPERTY FRAUDULENTLY

SECTION 1. DEBTS PAID IN FULL IF ESTATE
CONVEYED BY DECEASED MAY BE SUFFICIENT
RECOVERED. WHEN EXECUTOR OR
ADMINISTRATOR MUST BRING ACTION A writ of execution is not the proper procedure to
satisfy debts. The court must order the sale or
This provision applies when there is a deficiency mortgage of the properties of decedent, the
of assets in the hands of the executor or proceeds of which will satisfy the debts and
administrator for the payment of the debts and
expenses (Aldamiz v. Judge of CFI of Mindoro,
expenses for administration.
G.R. No. L-2360, December 29, 1949).
Is execution a proper remedy to satisfy an
The executor or administrator may, on his own approved claim? No, because:
initiative or on option of the creditors and as 1. Payment approving a claim does not create
directed by the court, institute an action for the a lien upon a property of the estate;
recovery of said property, but the court may direct 2. Special procedure is for the court to order
the creditors to defray part of the costs and the sale to satisfy the claim.
expenses of the suit since said action is for their
own benefit (Regalado, p. 93). General Rule: Payment of the debts of the estate
must be taken in the following order of preference:
SECTION 10. WHEN CREDITOR MAY BRING
1. From the portion or property designated in
ACTION. LIEN FOR COSTS
the will,

2. From the personal property, and by them (Jaucian v. Querol, G.R. No. L-11307,
3. From the real property. October 5, 1918).
Exception: The court, on petition of interested It has been ruled that the only instance wherein a
parties, may modify such order of disposition. creditor can file an action against a distributee of
the debtor’s assets is under Sec. 5, Rule 88. The
SECTION 2. PART OF ESTATE FROM WHICH contingent claims must first have been established
DEBT PAID WHEN PROVISION MADE BY WILL and allowed in the probate court before the
creditors can file an action directly against the
If the testator makes a provision in his will or distributees (De Bautista v. De Guzman, G.R. No.
designates the estate to be appropriated for the L-28298, November 25, 1983).
payment of his debts that will be followed.
SECTION 6. COURT TO FIX CONTRIBUTIVE
But if it is not sufficient, such part of the estate as SHARES WHERE DEVISEES, LEGATEES, OR
is not disposed of by will, if any, shall be HEIRS HAVE BEEN IN POSSESSION
appropriated for that purpose.
SECTION 3. PERSONALTY FIRST SECTION 7. ORDER OF PAYMENT IF ESTATE
CHARGEABLE FOR DEBTS, THEN REALTY INSOLVENT
If estate is insolvent, as in liabilities are more than
Two instances when realty is liable for debts the assets, Sec.7 in relation to Art. 1059 and 2239
and expenses to 2251 of the Civil Code (Concurrence and
Preference of Credits) must apply.
1. When the personal estate of the decedent
is not sufficient for that purpose;
2. Where the sale of such personalty would SECTION 8. DIVIDENDS TO BE PAID IN
be to the detriment of the participants of the PROPORTION TO CLAIMS
estate.
SECTION 9. ESTATE OF INSOLVENT
NONRESIDENT, HOW DISPOSED OF
SECTION 4. ESTATE TO BE RETAINED TO In case administration is taken in the Philippines of
MEET CONTINGENT CLAIMS the estate of a person who was at the time of his
death an inhabitant of another country, and who
If the court is satisfied that the contingent claim
died insolvent, his estate in the Philippines shall
duly filed is valid, it may order the executor or be so disposed of that his creditors in and outside
administrator to retain in his hands a sufficient part the Philippines may receive an equal share, in
of the estate to pay a portion equal to the dividend proportion to their respective credits.
of the creditors.
SECTION 10. WHEN AND HOW CLAIM
Requisites (FAV):
PROVED OUTSIDE THE PHILIPPINES AGAINST
1. Contingent claim is duly filed; INSOLVENT RESIDENT’S ESTATE PAID
2. The claim has become absolute; and Claims proven outside the Philippines where the
3. Court is satisfied that the claim is valid. executor had knowledge and opportunity to
contest its allowance therein may be added to the
list of claims in the Philippines against the estate
SECTION 5. HOW CONTINGENT CLAIM of an insolvent resident and the estate will be
BECOMING ABSOLUTE IN TWO YEARS distributed equally among those creditors.
ALLOWED AND PAID
1. If such contingent claim becomes absolute Principle of reciprocity: The benefits of Sections
and is presented to the court as an absolute 9 and 10 cannot be extended to the creditors in
claim within two years from the time allowed for another country if the property of such deceased
the presentation of claims, it will be paid in the person there found is not equally apportioned to
same manner as the other absolute claims. the creditors residing in the Philippines.
2. If the contingent claim matures after the
expiration of the two years, the creditors may SECTION 11. ORDER FOR PAYMENT OF
sue the distributees, who are liable in proportion DEBTS
to the shares in the estate respectively received

SECTION 12. ORDERS RELATING TO SECTION 1. ORDER OF SALE OF

PAYMENT OF DEBTS WHERE APPEAL IS PERSONALTY
TAKEN.
The court may order the payment of the debts or The court may order the whole or part of the
may order the distribution among the creditors personal estate to be sold if necessary:
whose claims are definitely allowed, leaving in the 1. To pay debts and expenses of
hands of the executor or administrator sufficient administration;
assets to pay the claim disputed and appealed. 2. To pay legacies; or
3. To cover expenses for the preservation of
SECTION 13. WHEN SUBSEQUENT the estate.
DISTRIBUTION OF ASSETS ORDERED
Conditions: SECTION 2. WHEN COURT MAY AUTHORIZE

1. Whole of the debts are not paid; SALE, MORTGAGE, OR OTHER
2. Whole assets are not distributed; or ENCUMBRANCE OF REALTY TO PAY DEBTS
3. Other assets afterwards come to the hands AND LEGACIES THOUGH PERSONALTY NOT
of the executor or administrator. EXHAUSTED
SECTION 14. CREDITORS TO BE PAID IN 1. If personal estate is not sufficient to pay

ACCORDANCE WITH TERMS OF ORDER debts, expenses of administration and legacies;
or
SECTION 15. TIME FOR PAYING DEBTS AND 2. If the sale of personal estate may injure the
LEGACIES FIXED, OR EXTENDED AFTER business or other interests of those interested in
NOTICE, WITHIN WHAT PERIODS the estate; and
3. If the testator has not made sufficient
Shall not exceed 1 year in the first instance.
provision for payment of such debts, expenses
and legacies;
But court may extend period on application of
4. If the deceased was in his lifetime under
executor or administrator and after hearing and
contract, binding in law to deed real property to
notice on the following conditions:
beneficiary (Section 8);
1. The extension must not exceed 6 months
5. If the deceased during his lifetime held real
for single extension;
property in trust for another person (Section 9);
2. The whole period allowed to the original
executor or administrator shall not exceed 2
years. Requisites:
1. Application of executor/administrator;
Note: The provision is directory and extensions of 2. Written notice to heirs, devisees and
the period may be granted by the court taking into legatees; and
account the circumstances attending the 3. Hearing.
distribution of the estate (Regalado, p. 96).
SECTION 16. SUCCESSOR OF DEAD Note: Assets in the hands of

EXECUTOR OR ADMINISTRATOR MAY HAVE executor/administrator will not be reduced to
TIME EXTENDED ON NOTICE WITHIN A prevent a creditor from receiving his full debt or
CERTAIN PERIOD diminish his dividends.
Successor of deceased executor or administrator
may be given an extension not to exceed 6
months.
Notice is mandatory: Without notice and hearing,
the sale, mortgage or encumbrance is void.
RULE 89
S ALES , M ORT GAGES , AND OT HER
Ratio: The reason behind this requirement is that
E NCUM BRANCES OF P ROPERT Y OF
the heirs are the presumptive owners. Since they
D ECEDENT succeed to all the rights and obligation of the
deceased from the moment of the latter’s death,

they are the persons directly affected by the sale SECTION 7. REGULATIONS FOR GRANTING
or mortgage and therefore cannot be deprived of AUTHORITY TO SELL, MORTGAGE, OR
the property, except in the manner provided by law OTHERWISE ENCUMBER ESTATE
(Maneclang v. Baun, G.R. No. L-27876, April 22,
1992). Application for authority to sell, mortgage or
encumber property of the estate may be denied by
SECTION 3. PERSONS INTERESTED MAY the court if:
PREVENT SUCH SALE, ETC., BY GIVING
BOND 1. The disposition is not for any of the
reasons specified by the rules; or
If the opposition to the sale is based on the fact 2. Under Section 3 Rule 89, any person
that the oppositor claims title to the property to be interested in the estate gives a bond conditioned
sold, the court will hold in abeyance the authority to pay the debts, expenses of administration and
legacies.
to sell such property until the issue of ownership
has been settled in an ordinary action, since the
probate court generally has no jurisdiction to In case of sale, may there be payment in
resolve issues of ownership in the administration installment? As a general rule no because one of
proceedings (Pio Barreto Realty Dev., Inc. v. Court the duties of an executor or administrator is to
of Appeals, et al., G.R. Nos. 62431-33, August 31, settle the debts of the estate; thus, there is a need
1984). for immediate cash. The exception is when the
court so authorizes (Sec. 15, Rule 88).
Conditions of bond: To pay the debts, expenses
of administration and legacies within such time as SECTION 8. WHEN COURT MAY AUTHORIZE
the court directs. CONVEYANCE OF REALTY WHICH DECEASED
CONTRACTED TO CONVEY. NOTICE. EFFECT
SECTION 4. WHEN COURT MAY AUTHORIZE
OF DEED
SALE OF ESTATE AS BENEFICIAL TO
INTERESTED PERSONS. DISPOSAL OF SECTION 9. WHEN COURT MAY AUTHORIZE
PROCEEDS CONVEYANCE OF LANDS WHICH DECEASED
HELD IN TRUST
The court may authorize the sale of whole or part
of the estate if it appears beneficial to the heirs, Liquidation
devisees, legatees, and other interested persons.
The determination of all assets of the estate and
payment of all debts and expenses
The proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
RULE 90
SALE, MORTGAGE OR OTHER D IST RIBUT ION AND P ART IT ION OF
ENCUMBRANCE OF ESTATE TO PAY DEBTS
AND LEGACIES IN OTHER COUNTRIES
T HE E ST AT E
When it appears from records and proceedings of SECTION 1. WHEN ORDER FOR
a probate court of another country that the estate DISTRIBUTION OF RESIDUE MADE
of the deceased in foreign country is not sufficient
to pay debts and expenses. General Rule: An order of distribution shall be
made after payment of all debts, funeral expenses,
expenses for administration, allowance of the
widow and inheritance tax is made.
SALE, MORTGAGE OR OTHER Exception: If the distributees or any of them gives
ENCUMBRANCE OF REALTY ACQUIRED ON a bond conditioned for the payment of said
EXECUTION OR FORECLOSURE obligation, the order of distribution may be made
even before payments of all debts, etc.

In these proceedings, the court shall: Conditions precedent to be complied with for
the issuance of an order of distribution
1. Collate; 1. Showing that the executor, administrator or
2. Determine heirs; and person interested in the estate applied for it; and
3. Determine the share of each heir. 2. The requirements as to notice and hearing
upon such application have been fulfilled.
A separate action for the declaration of heirs is not
Prohibition against interference by other
necessary.
courts: In the interest of orderly procedure and to
Included in the jurisdiction of the probate court to avoid confusing and conflicting dispositions of a
make a declaration of heirs is the power to decedent’s estate, a court should not interfere with
entertain the question whether or not a person is probate proceedings pending in a co-equal court
(Herrera, p. 215).
acknowledged natural child of decedent (Conde v.
Abaya, G.R. No. 4275, March 23, 1909), the
validity of disinheritance effected by the testator Remedy of an heir who has not received his
(Hilado v. Ponce de Leon, G.R. No. 8020-R, share:
October 22, 1953), and the status of a woman who
claims to be the lawful wife of the decedent 1. File a motion with the probate court for
(Torres v. Javier, G.R. No. L-10560, March 24, delivery to him of his share; or
1916). However, the adoption decree cannot be 2. If the estate proceedings have been closed,
assailed collaterally in settlement proceedings file a motion for reopening of the proceeding,
(Santos v. Aranzanso, G.R. No. L-26940, August within the prescriptive period.
21, 1982).
Declaration of Heirs
The probate court has the power to entertain the Note: The court acquires jurisdiction over all
question whether or not a person is an persons interested, through the publication of the
acknowledged natural child of the decedent. Thus, notice prescribed and any order that may be
an action for compulsory recognition of a natural entered is binding against all of them (Manalo v.
child may be instituted and decided in the Paredes, G.R. No. 24168, September 22, 1925). It
proceeding for the settlement of the estate of the was ruled that a final order of distribution of the
ancestor. But an adoption decree cannot be estate of a deceased person vests the title to the
assailed in the settlement of the estate of the land of the estate in the distributes; and that the
ancestor (Herrera, p.210).
only instance where a party interested in a probate
proceeding may have a final liquidation set aside
When is title vested? From the finality of the is when he is left out by reason of circumstances
order of distribution. beyond his control or through mistake or
inadvertence not imputable to negligence. Even
then, the better practice to secure relief is
Orders that determine who the heirs are and their reopening of the same case by proper motion
distributive shares are appealable. If not appealed within the reglementary period (Del Rosario Vda.
within the reglementary period, they become final De Alberto v. Court of Appeals, G.R. No. L-29759,
(Imperial v. Munoz, G.R. No. L-30787, August 29, May 18, 1989).
1974).
Note: The probate court loses jurisdiction over the Writ of Execution
General Rule: Probate court cannot issue writs of
settlement proceedings only upon payment of all
execution.
debts and expenses of the obligor and delivery of
the entire estate to all the heirs (Guilas v. Judge of
CFI of Pampanga, G.R. No. L-26695, January 31, Rationale: Its orders usually refer to the
1972) and/or persons entitled thereto. adjudication of claims against the estate which the
executor/administrator may satisfy without the
need of executory process (Herrera, p. 222).

Exceptions: (CEE) Three instances of escheats

1. To satisfy the contributive share of the 1. When a person dies intestate leaving no
devisees, legatees and heirs when the latter had heir but leaving property in the Philippines
entered prior possession over the estate (Sec. 6, (Section 1);
Rule 88); 2. Reversion Proceedings – Sale in violation
2. To enforce payment of the expenses of of the Constitutional provision;
partition (Sec. 3, Rule 90);
3. To satisfy the costs when a person is cited
for examination in probate proceedings (Sec. 13, This shall be governed by Rule 91. However, the
Rule 142). action must be instituted in the province where
the land lies in whole or in part.
SECTION 2. QUESTIONS AS TO Note: Reversion will not be allowed even if the

ADVANCEMENT TO BE DETERMINED original buyer was an alien, if later on the title to
the property was transferred by succession to
SECTION 3. BY WHOM EXPENSES OF the buyer’s heirs who are qualified parties, i.e.
PARTITION PAID Philippine citizens (see Republic v. Registry of
1. By the executor or administrator if he has Deeds of Roxas City, G.R. No. 158230, 16 July
sufficient effects in his hands and when 2008).
equitable and not inconsistent with the testator’s
3. Unclaimed Balances Act (dormant
intention; otherwise,
accounts for 10 years shall be escheated).
2. By the parties in proportion to their
respective shares or interest in the premises.
Escheat under the Unclaimed Balances Acts
Note: This is one of the instances where a writ must be filed in the RTC of the place where the
dormant deposits are found.
of execution may be issued.
What is the basis of the state’s right to receive
property in escheat? Order of succession under
SECTION 4. RECORDING THE ORDER OF the Civil Code, the state is the last heir of the
PARTITION OF ESTATE decedent.
Who is the real party in interest? In all actions
RULE 91 for the reversion to the Government of lands of the
public domain or improvements thereon, the
E SCHEAT S Republic of the Philippines is the real party in
interest. The action shall be instituted by the
SECTION 1. WHEN AND BY WHOM PETITION
Solicitor General or the officer acting in his stead,
FILED
in behalf of the Republic of the Philippines (Luis B.
Escheat Manese, et. al. v. Sps. Velasco, et. al., G.R. No.
164024, January 29, 2009).
The proceeding whereby the real and personal
property of a deceased person in the Philippines, Where to file:
who dies without leaving any will (or if the will was Resident – RTC of last residence.
not allowed, hence, intestacy) and without any
legal heirs, becomes the property of the State Non-Resident – RTC of the place where his estate
upon his death. is located.
Nature of escheat proceedings: Escheat is not Requisites for filing of petition:

an ordinary civil action but a special proceeding
1. That a person died intestate;
that should be commenced not by complaint but
2. That he left no heirs or persons by law
by petition (Municipal Council of San Pedro, entitled to the same; and
Laguna v. Colegio de San Jose, G.R. No. L-45460, 3. The deceased left properties.
February 25, 1938).

SECTION 2. ORDER FOR HEARING When to File: Within 5 years from date of
judgment, otherwise it will be barred forever.
If the petition is sufficient in form and substance
the court shall: Rationale: To encourage would-be claimants to
1. Make an order of hearing – hearing shall be punctual in asserting their claims (Festin,
not be more than 6 months after entry of order; p.103).
2. Direct the publication of a copy of the order
– at least once a week for 6 consecutive weeks. SECTION 5. OTHER ACTIONS FOR ESCHEATS
Period of filing claim: Within 5 years from

Remedy of respondent: When the petition does
the date of judgment.
not state facts which entitle the petitioner to the
remedy prayed for, the respondent may file a Note: Under Art. 1014 of the Civil Code, the 5-
Motion to Dismiss the petition (Herrera, p.227). year period is reckoned from the date the property
was delivered to the state and further provides that
if the property had been sold, the municipality or
SECTION 3. HEARING AND JUDGMENT city shall be accountable only for such part of the
proceeds as may not have been lawfully spent.
Requisites: By whom: A person with interest.
1. Publication of the order; Proceedings in escheat cannot be converted into
2. Person died intestate; settlement of the estate. For the distribution of the
3. He is seized of real/personal property in estate of the decedent to be instituted, the proper
the Philippines; petitions must be presented and the proceedings
4. He left no heir or person entitled to such should comply with the requirements of the Rule.
property; and
An escheat court does not have the power to order
5. There is no sufficient cause to the contrary.
or proceed with the distribution of the estate of a
decedent in escheat proceedings and adjudicate
To whom the property escheated will be the properties to the oppositors (Municipality of
assigned: Magalloon, Negros Occ. v. Ignatius Henry Bezore,
G.R. No. L- 14157, October 26, 1960).
1. If personal property – to the municipality or
city where he last resided;
2. If real property – to the municipality or city
where the property is situated; G ENERAL G UARDIANS AND
3. If deceased never resided in the G UARDIANSHIP
Philippines – to the municipality or city where the
property may be found. Guardianship of minors is now governed by the
Rule on Guardianship of Minors (A.M. No. 03-02-
The court, at the instance of an interested party, or 05-SC) which took effect on May 1, 2003 while
on its own motion, may order the establishment of guardianship of incompetents who are not minors
a permanent trust, so that only the income from is still governed by the provisions of the Rules of
the property shall be used (Sec. 3, Rule 91). Court on Guardianship (Rule 92 to Rule 97) (Sec.
27, A.M. No. 03-02-05-SC).
The right to escheat may be waived expressly or
impliedly (Herrera, p.229). Guardianship
SECTION 4. WHEN AND BY WHOM CLAIM TO The power of protective authority given by law and
ESTATE FILED imposed in an individual who is free and in
enjoyment of his rights over one whose weakness
Who may file a claim on the escheated
on account of his age or other infirmity renders
property: Any devisee, legatee, heir, widow/er, or
him unable to protect himself (Herrera, p. 235).
other person entitled thereto.

Basis: Parens patriae and special proceedings falling within the

exclusive original jurisdiction of the Juvenile and
Purpose: To safeguard the right and interests of Domestic Relations Court (Herrera, p. 238). RTC
minors and incompetent persons. has jurisdiction over proceedings on
guardianship of incompetents.
Guardian
2. Family Courts – R.A. No. 8369 otherwise
A person in whom the law has entrusted the known as Family Courts Act of 1997 vested the
custody and control of the person or estate or both Family Courts with exclusive original jurisdiction
of an infant, insane or other person incapable of on guardianship of minors (Herrera, p. 238).
managing his own affairs (Herrera, p. 235).
Procedure for Guardianship for Incompetent
Note: The court, in guardianship proceedings, is Persons who are not Minors
solely concerned with the ward’s custody and
proper administration of his properties. Conflicts Petition
regarding ownership or title in the hands of a for the Appointment of a
guardian, in his capacity as such should be Guardian
litigated in a separate proceeding (Festin, p.126).
In guardianship proceedings, the court cannot Court Order

actually order the delivery of the ward’s property fixing the hearing of the
found to be embezzled, concealed or conveyed petition
except when the title of the ward to the same is
clear and indisputable. Absent the exception, the Notice
recovery of such property must be made in a of the hearing
separate proceeding (Cui v. Piccio, G.R. No. L-
5131, July 31, 1952).
Hearing and Appointment
Kinds of Guardians of the guardian
A. According to scope:
1. Guardian of the person – one who has been Service of Judgment
lawfully invested with the care of the person of on the Local Civil
the minor; Registrar
2. Guardian of the property – one appointed to
have the management of the estate of a minor
or incompetent; Filing of Bond
3. General guardian – one appointed to have by the guardian
the care and custody of the person and of all
the property of the ward (Herrera, p. 237).
Issuance
of “Letters of Guardianship”
B. According to constitution:
1. Legal guardian – without need of judicial
appointment; Termination
2. Guardian ad litem – appointed by courts of guardianship
of justice to prosecute or defend a minor,
insane or person declared to be incompetent,
in an action in court. RULE 92
3. Judicial gurdian – appointed in pursuance
to law, as guardian for insane persons, V ENUE
prodigals, minors, etc. (Herrera, p. 237).
SECTION 1. WHERE TO INSTITUTE
PROCEEDINGS
Courts with jurisdiction
1. Regional Trial Courts – B.P. Blg. 129
provides that RTCs have jurisdiction over actions

Jurisdiction: 2. The incompetency rendering the

appointment necessary or convenient;
Resident – RTC of his residence 3. The names, ages, and residences of the
Non-Resident – RTC of the place where his relatives of the incompetent, and of the persons
having him in their care;
property is located.
4. The probable value and character of his
estate; and
5. The name of the person for whom letters of
SECTION 2. MEANING OF THE WORD guardianship are prayed.
“INCOMPETENT”
Incompetent includes: (CLeP DUN) SECTION 3. COURT TO SET TIME FOR
HEARING. NOTICE THEREOF
1. Those suffering from penalty of civil
interdiction; To whom notice served:
2. Hospitalized lepers;
3. Prodigals; 1. Persons mentioned in the petition residing
Note: A prodigal is synonymous to a spendthrift in the Philippines;
or a person who by excessive drinking, gaming, 2. The incompetent.
idleness or debauchery of any kind shall so
spend, waste or lessen his estate as to expose There is no requirement for publication, only notice
himself or his family to want or suffering or except in case of a nonresident incompetent.
expose the town to charge or expense for the
support of himself or his family (Cyclopedic Law However, service of notice upon the persons
Dictionary, 811). mentioned in the petition, including the
incompetent who is not a minor, is mandatory and
4. Deaf and dumb who are unable to read jurisdictional.
and write;
5. Those of unsound mind though they may If the person is insane, service of notice upon the
have lucid intervals; Director of the Hospital where he is hospitalized is
6. Persons not of unsound mind but by sufficient.
reason of age, disease, weak mind and other
similar causes, cannot, without outside aid, take
care of themselves and manage their property. SECTION 4. OPPOSITION TO PETITION
Must be in writing; need not be verified
SECTION 3. TRANSFER OF VENUE
Grounds:
1. Competency of alleged incompetent;
RULE 93 2. Unsuitability of the person for whom letters
are prayed.
APPOINT M ENT OF G UARDIANS
SECTION 1. WHO MAY PETITION FOR
APPOINTMENT OF GUARDIAN FOR RESIDENT If the interested person is a creditor and
(AFOD) mortgagee of the estate of the minor, he cannot be
1. Any relative; appointed guardian of the person and property of
2. Friend; or the latter. No man can serve two masters
3. Other person on behalf of the resident (Garchitorena v. Sotelo, G.R. No. L-47867,
incompetent who has no parents or lawful November 13, 1942).
guardian; or
4. The Director of Health in favor of an insane SECTION 5. HEARING AND ORDER FOR
person who should be hospitalized or in favor of LETTERS TO ISSUE
an isolated leper.
At the hearing:
1. The alleged incompetent must be present
if able to attend;
1. The jurisdictional facts;

2. It must be shown that the required notice 3. To render a true and just account of all the
has been given. estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of
the management and disposition of the same, at
SECTION 6. WHEN AND HOW GUARDIAN FOR the time designated by these rules and such
NON-RESIDENT APPOINTED, NOTICE other times as the court directs; and at the
expiration of his trust to settle his accounts with
Any relative, friend or anyone interested in the the court and deliver and pay over all the estate,
estate of a person liable to be put under effects, and moneys remaining in his hands, or
guardianship may file a petition for guardianship due from him on such settlement, to the person
over the property of such person. lawfully entitled thereto;
4. To perform all orders of the court by him to
Notice shall be given through publication or
be performed.
otherwise.
Ancillary guardianship
Purpose of the bond: For the protection of the
Ancillary guardianship refers to the guardianship in property of the minor or incompetent to the end
a state other than that in which guardianship is that he may be assured of an honest
originally granted (Herrera, p. 276). administration of his funds (Herrera, p. 282).
SECTION 7. PARENTS AS GUARDIANS Necessity of the bond: When required by

statutes to give a bond, no person can qualify and
This provision may be deemed to have been act as guardian without complying with this
modified by the provisions of the Family Code on condition precedent (Herrera, p. 282).
Guardianship particularly Articles 225 and 220
(Herrera, p. 278). Time when bond takes effect: At the time of
appointment notwithstanding the bond being filed
SECTION 8. SERVICE OF JUDGMENT later (Herrera, p. 282).
Civil Registrar of the place where the minor or SECTION 2. WHEN NEW BOND MAY BE
incompetent resides or where the property is
REQUIRED AND OLD SURETIES DISCHARGED
situated shall be served with a copy of the
A new bond may be required when the guardian is
judgment.
about to receive funds not in contemplation when
the original bond was executed and should be
given as a condition of the payment of a legacy or
RULE 94 distributive share to the guardian when there is
any express statutory requirement to that effect
B ONDS OF G UARDIANS (Herrera, p.283).
SECTION 3. BONDS TO BE FILED. ACTIONS

SECTION 1. BOND TO BE GIVEN BEFORE
THEREON
ISSUANCE OF LETTERS. AMOUNT.
CONDITIONS In case of breach of the bond’s conditions, the
Before an appointed guardian enters upon the bond may be prosecuted in the same proceeding
execution of his trust, he shall give a bond. or in a separate action, for the use and benefit of
the ward or of any person legally interested in the
Conditions: (IFAP) estate.
1. To make and return to the court, within 3
months, a true and complete inventory of all the The bond of the guardian is a continuing one
against the obligors and their estates until all of its
estate of his ward which shall come to his
conditions are fulfilled. The mere fact that
possession or knowledge or to the possession or
defendant was removed as guardian did not
knowledge of any other person for him;
2. To faithfully execute the duties of his trust, relieve her or her bondsmen from liability during
to manage and dispose of the estate according the time she was duly acting as such guardian
to these rules for the best interests of the ward, (Guerrero v. Teran, G.R. No. L-4898, March 19,
1909).
and to provide for the proper care, custody, and
education of the ward;

Note: Notice to next of kin and interested persons

RULE 95 is jurisdictional. Failure to notify the next of kin
shall be a ground for dismissal of the petition
S ELLING AND E NCUM BERING under this Rule (Singco v. Longa, G.R. No. L-
P ROPERT Y OF WARD 27962, February 14, 1928). However, notice is not
necessary where the next of kin to the ward and
SECTION 1. PETITION OF GUARDIAN FOR all persons interested in the estate are her mother
LEAVE TO SELL OR ENCUMBER ESTATE and guardian, uncles and aunts who agreed to
A. Grounds make the transfer of their respective shares in the
1. When the income of estate is insufficient to property to the corporation to be organized (Pardo
maintain the ward and his family or; de Tavera v. El Hogar Filipino, Inc. and
2. When it appears that it is for the benefit of the Magdalena Estate, G.R. No. L-5893, February 28,
ward. 1956).
B. Requirements
1. Petition must be verified; SECTION 3. HEARING ON RETURN OF ORDER.
2. Notice must be given to the next of kin; and COSTS
3. Hearing so that they may show cause why SECTION 4. CONTENTS OF ORDER FOR SALE
petition should not be granted.
OR ENCUMBRANCE, AND HOW LONG
EFFECTIVE
Sale of the ward’s realty by the guardian without
The order of sale must specify the grounds.
authority from the court is void. Under the law, a
parent acting merely as legal administrator of the General Rule: Sale must first be confirmed by the
property of his/her children does not have the court, and that until such confirmation, not even
power to dispose of, or alienate, the property of equitable title passes (Herrera, p. 289).
said minor without judicial approval (Lindain v.
Court of Appeals, G.R. No. 95305, August 20, Exception: The court’s order expressly authorized
1992). the guardian to execute and deliver to the
purchaser definitely named, a deed of conveyance
For the sale or encumbrance of the property, a to a parcel of land specifically described at a price
verified petition is required (Sec 1 of this Rule), but already fixed and it was intended to be the
no such verification is required for that purpose approval itself of the sale that was already
with respect to the estate of a decedent (Secs 1
perfected or agreed upon by the seller and the
and 4, Rule 89) and a mere motion therein will
buyers, needing only a judicial go-ahead signal to
suffice.
reduce the agreement to the statutory form and it
had been made without departure from the terms
SECTION 2. ORDER TO SHOW CAUSE of the order (Soriano, et. al. v. Latono, G.R. No. L-
THEREUPON 3408, December 23, 1950).
The court shall make an order directing the next of Duration of the order of sale and encumbrance
kin, and all persons interested in the estate, to of property:
show cause why the petition under this Rule must
not be granted. Within 1 year from the granting of the order. It is
presumed that if the property was not sold within 1
Next of Kin year, the ward has sufficient income.
Next of kin does not mean the next of kindred but The guardian, among others, cannot acquire by
pertains to those relatives who are entitled to purchase even at a public or judicial auction, either
share in the estate of the ward under the Law on in person or through the mediation of another, the
Intestate Succession including those who inherit property of the person or persons who may be
per stirpes or by right of representation (Lopez v. under his guardianship (Art. 1491, NCC).
Teodoro, Sr., G.R. No. L-3071, May 29, 1950).

The authority to sell or encumber shall not extend SECTION 3. GUARDIAN TO SETTLE
beyond 1 year unless renewed by the court. ACCOUNTS, COLLECT DEBTS AND APPEAR
IN ACTIONS FOR WARD
Appeal is the proper remedy against an order of
the court authorizing the sale of the ward’s Ordinarily, a guardian ad litem has no authority to
property (Lopez v. Teodoro, G.R. No. L- 3071, act or bind a minor in any transaction with regard
May 29, 1950). to his estate, but he can, however, do so with the
approval of the court, such as the amicable
Note: There being a presumption that the sale of settlement of a case affecting the property of the
the ward’s estate is valid, it cannot be attacked minor, duly approved by the court (Santo Domingo
collaterally in the registration proceedings. A v. Santo Domingo, G.R. No. L-10886, April 18,
separate action to avoid or rescind the sale on the 1958).
grounds specified by law should be filed (Margate
v. Rabacal, G.R. No. L-14302, April 30, 1963). SECTION 4. ESTATE TO BE MANAGED
FRUGALLY AND PROCEEDS APPLIED TO
SECTION 5. COURT MAY ORDER INVESTMENT MAINTENANCE OF WARD
OF PROCEEDS AND DIRECT MANAGEMENT
OF ESTATE The guardian is bound to exercise such diligence
Sections 1 & 2 of this Rule relate only to the and prudence as reasonable men ordinarily
investment of proceeds from the sale or employ in the conduct of their own affairs and will
encumbrance of the estate and investment of be held liable for any loss which results from his
other funds is covered by Section 5 of this Rule. failure to exercise such prudence and diligence
While Section 5 requires judicial authority in order (Herrera, p. 301).
that a guardian may invest the ward’s money, it
does not provide that said authority must always SECTION 5. GUARDIAN MAY BE AUTHORIZED
be either prior to or expressed (Philippine Trust TO JOIN IN PARTITION PROCEEDINGS AFTER
Co. v. Ballesteros, G.R. No. L-8532, October 11, HEARING
1957).
Requisites:
RULE 96
1. Hearing;
G ENERAL P OWERS AND D UT IES OF 2. Notice to relatives of the ward; and
3. Careful investigation as to the necessity
G UARDIANS and propriety of the proposed action.
SECTION 1. TO WHAT GUARDIANSHIP SHALL SECTION 6. PROCEEDING WHEN PERSON

EXTEND SUSPECTED OF EMBEZZLING OR
Conflicts regarding the ownership or title to the CONCEALING PROPERTY OF WARD
property in the hands of the guardian in his Purpose: To secure evidence from persons
capacity as such should be litigated in a separate suspected of embezzling, concealing or conveying
proceeding, the court in guardianship proceeding any property of the ward so as to enable the
being solely concerned with the ward’s care and guardian to institute the appropriate action to
custody and proper administration of his properties obtain the possession of and secure title to said
(Viloria v. Administrator of Veteran Affairs, G.R. No. property (Cui v. Piccio, G.R. No. L-5131, July 31,
L-9620, June 28, 1957). 1952).
SECTION 2. GUARDIAN TO PAY DEBTS OF
Only in extreme cases where property clearly
WARD
belongs to the ward or where his title thereto has
Order of liability of ward’s property: been already decided, may the court direct its
delivery to the guardian (Cui v. Piccio, supra).
1. Personal estate and income of real estate;
2. Real estate

SECTION 7. INVENTORIES AND ACCOUNTS

OF GUARDIANS, AND APPRAISEMENT OF Petition shall be verified by oath and shall state
ESTATE that such person is then competent.
SECTION 8. WHEN GUARDIAN’S ACCOUNTS Grounds for termination:

PRESENTED FOR SETTLEMENT, EXPENSES 1. Competency of the ward has been judicially
AND COMPENSATION ALLOWED determined;
2. Guardianship is no longer necessary;
The guardian shall be allowed the amount of his 3. Death of guardian;
reasonable expenses incurred in the execution of 4. Death of ward.
his trust and such compensation for his services,
not exceeding 15% of the net income of the ward.
Note: Notice of hearing of the petition is not
General powers and duties of guardians intended as a personal service process in the
(MSICAP) sense necessary to give the court jurisdiction over
1. Manage the estate of the ward frugally, and the ward (In Re Guardianship of Incompetent Jose
apply the proceeds to maintenance of the ward de Inchausti v. Soler, G.R. No. L-15119, January
(Sec. 4); 19, 1920).
2. Settle accounts, collect debts and appear Who may oppose:
in actions for ward (Sec. 3);
3. Render a verified inventory within 3 months 1. Guardian;
after his appointment and annually thereafter, 2. Relative of the ward; or
and upon application of interested persons (Sec. 3. Any other person, in the discretion of the
7); court.
4. 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 SECTION 2. WHEN GUARDIAN REMOVED
the case may be (Sec. 1); OR ALLOWED TO RESIGN. NEW
5. Render to court for its approval an APPOINTMENT
accounting of the property for 1 year from his
appointment and every year thereafter, and upon Grounds for removal of a guardian
application of interested persons (Sec. 8); and 1. Insanity;
6. Pay the debts of the ward (Sec. 2). 2. Incapability or unsuitability to discharge
functions;
3. Wastage or mismanagement of the
A guardian, just like a trustee, is prohibited under property of the ward; and
Article 736 of the Civil Code from making a 4. Failure to render an account or make a
donation of the properties entrusted to him return within 30 days after it was due.
(Araneta v. Perez, G.R. No. L-18872, July 15,
1966).
The remedy of a guardian from the order of
removal is to appeal (Olarte v. Enriquez, G.R. No.
RULE 97 L-16098, October 31, 1960).
T ERM INAT ION OF G UARDIANSHIP The guardian may file a petition before the
guardianship court for permission to resign is trust,
SECTION 1. PETITION THAT COMPETENCY OF stating the grounds therefore, and accompanied
WARD BE ADJUDGED, AND PROCEEDINGS by a report of the state of his account and an offer
THEREUPON to settle the account and deliver the estate over
the court (Herrera, p. 314).
Who may file:
1. Person who has been declared SECTION 3. OTHER TERMINATION OF
incompetent; GUARDIANSHIP
2. His guardian;
3. Relative; or Voluntary emancipation under the amendments
4. Friend. introduced by R.A. No. 6809, is no longer

recognized as a ground for the termination of SECTION 1. APPLICABILITY OF THE RULE

parental authority or guardianship (Herrera, p.
315). The Rule applies to petitions for Guardianship
over the person or property, or both of a minor.
SECTION 4. RECORD TO BE KEPT BY
JUSTICE OF THE PEACE OR MUNICIPAL The father and the mother shall jointly exercise
JUDGE legal guardianship over the person and property of
SECTION 5. SERVICE OF JUDGMENT their minor without the necessity of a court
appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on
Guardianship.
Estate/Intestate Guardianship Who may petition
Court Court
1. Any relative; or
Rules 73-90 Rules 92-97 2. Other person on behalf of a minor; or
3. The minor himself if 14 years of age or
No statute of non- over; or
Statute of non-claims
claims 4. The Secretary of Social Welfare and
Development; and
Cannot pass upon
Can pass upon the 5. The Secretary of Health in case of an
the merits of the insane minor who needs to be hospitalized (Sec.
merits of the claim
claim 2).
Sale of personal Sale of personal or
properties first real properties first Where to file petition: Family Court of the
(Rule 89) (Rule 95) province or the city where the minor actually
resides. If he resides in a foreign country, with the
Bond defeats the Bond does not Family Court of the Province or city where his
“petition for authority defeat the “Petition property or any part thereof is situated (Sec. 3).
to Sell” for Authority to Sell”
The petition shall be verified and accompanied by
Personal notice a certification of non-forum shopping (Sec.7).
Publication (Rule 89)
(Rule 95)
Grounds of petition (D SuRe Best)
Indefinite effectivity of 1 year effectivity of 1. Death, continued absence, or incapacity of
“authority to sell” “authority to sell” his parents;
2. Suspension, termination or deprivation of
No such thing as a parental authority;
3. Remarriage of his surviving parent, if the
special guardian
latter is found unsuitable to exercise parental
authority;
May appoint a special 4. When the best interests of the minor so
administrator (Remedy: Appeal require (Sec. 4).
from order Considerations in appointing guardians (MP –
appointing the FRALA)
guardian)
1. Moral character;
2. Physical, mental and psychological
condition;
RULE ON G UARDIANSHIP OF 3. Financial status;
4. Relationship of trust with the minor;
M INORS 5. Availability to exercise the powers and
(A.M. No. 03-02-05-SC, effective May 1, 2003) duties of a guardian for the full period of the
guardianship;
6. Lack of conflict of interest with the minor;

7. Ability to manage the property of the minor Case study report: The court shall order a social
(Sec. 5). worker to conduct a case study of the minor and
all prospective guardians and submit his report
Who may be appointed guardian of the person and recommendation (3 days before hearing) to
or property, or both, of a minor: In default of the court for its guidance before the scheduled
hearing (Sec. 9).
parents or a court-appointed guardian, the court
may appoint a guardian of a minor, observing as Opposition to petition: Must be in writing; need
far as practicable, the following order of not be verified (Sec. 10).
preference:
Grounds for opposition:
(G-BAO) 1. Majority of alleged minor;
1. The surviving grandparent and in case 2. Unsuitability of the person for whom letters
several grandparents survive, the court shall are prayed.
select any of them taking into account all
relevant considerations;
2. The oldest brother or sister of the minor Contents of opposition to the petition
over twenty-one years of age, unless unfit or 1. Ground relied upon;
disqualified; 2. Prayer that the petition be denied; or
3. The actual custodian of the minor over 3. Prayer that letters of guardianship issue to
twenty-one years of age, unless unfit or himself or to any suitable person named in the
disqualified; and opposition.
4. Any other person, who in the sound
discretion of the court would serve the best Bond of guardian; amount and conditions:
interests of the minor (Sec. 6). Before the guardian enters upon the execution of
his trust or letters of guardianship he may be
Contents of petition required to post a bond in the amount set by the
1. The jurisdictional facts; court under the following conditions:
2. The name, age and residence of the 1. To make and return to the court, within
prospective ward; three months after the issuance of his letters of
3. The ground rendering the appointment guardianship, a true and complete Inventory of
necessary or convenient; all the property, real and personal, of his ward
4. The death of the parents of the minor or which shall come to his possession or
the termination, deprivation or suspension of knowledge or to the possession or knowledge of
their parental authority; any other person in his behalf;
5. The remarriage of the minor’s surviving 2. To faithfully execute the duties of his trust,
parent; to manage and dispose of the property
6. The names, ages, and residences of according to this rule for the best interests of the
relatives within the 4th civil degree of minor, and ward, and to provide for his proper care, custody
of persons having him in their care and custody; and education;
7. The probable value, character and location 3. To render a true and just account of all the
of the property of the minor, and the name, age property of the ward in his hands, and of all
and residence of the person for whom letters of proceeds or interest derived therefrom, and of
guardianship are prayed (Sec. 7). the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs; and at the expiration
Time and notice of hearing: Notice must be of his trust, to settle his accounts with the court
given to persons named in the petition and to the and deliver and pay over all the property, effects,
minor if over 14 years of age (Sec. 8). and monies remaining in his hands, or due from
him on such settlement, to the person lawfully
Note: Notice to a minor who is above 14 year old entitled thereto; and
is jurisdictional. Non-compliance with this renders 4. To perform all orders of the court and such
the proceedings null and void. other duties as may be required by law (Sec. 14).
Bond of parents as guardian of the property of

the minor: The parents shall post a bond if the

market value of the child’s properties or income Incompetents Who

Minor
exceeds PhP50,000 and the bond shall not be Are Not Minors
less than 10% of the value of the properties or age or over; or or lawful guardian; or
income (Sec. 16). 4. The Secretary 4. The Director of
of Social Welfare Health in favor of an
Petition to sell or encumber property and Development insane person who
Grounds: AND by should be
1. When the income of estate is insufficient to 5. The Secretary hospitalized or in
maintain and educate ward when a minor; or of Health in case of favor of an isolated
2. When it appears that it is for the benefit of an insane minor who leper (Sec. 1);
the ward. needs to be 5. Anyone
hospitalized (Sec.2 interested in the
The authority to sell or encumber shall not extend AM 03-02-05-SC). estate of a non-
beyond one year, unless renewed by the court resident incompetent
(Sec.19). (Sec. 6).
Contents of Petition
Grounds for removal or resignation of
guardian 1. The jurisdictional 1. The jurisdictional
Guardian: facts; facts;
1. Becomes insane or otherwise incapable of 2. The name, age 2. The incompetency
discharging his trust; and residence of rendering the
2. Is found thereafter to be unsuitable; the prospective appointment
3. Has wasted or mismanaged the property of ward; necessary or
the ward; 3. The ground convenient;
4. Has failed to render an account or make a rendering the 3. The names, ages,
return 30 days after it was due (Sec.24). appointment and residences of
necessary or the relatives of the
Note: Before a motion for removal or resignation convenient; incompetent, and
may be granted under Sec. 24, the guardian must 4. The death of the of the persons
submit the proper accounting of the property of the parents of the having him in their
ward and the court has to approve the same. minor or the care;
termination, 4. The probable
deprivation or value and
Grounds for termination of guardianship suspension of their character of his
parental authority; estate;
1. The ward has come of age; or 5. The remarriage of 5. The name of the
2. Has died (Sec. 25).
the minor’s person for whom
surviving parent; letters of
Guardianship’s termination may be motu proprio 6. The names, ages, guardianship are
or by a verified motion by any person allowed to and residences of prayed (Sec. 2
relative within the Rule 93).
file a petition for guardianship on the grounds of
4th civil degree of
majority and/or death of the ward (in case of death, minor, and of
notify the court within ten (10) days). persons having
him in their care
and custody;
Incompetents Who 7. The probable
Minor
Are Not Minors value, character
Who may file and location of the
property of the
1. Any relative; or 1. Any relative; minor; and
2. Other person 2. Friend; or 8. The name, age
on behalf of a 3. Other person and residence of
minor; or on behalf of the the person for
3. The minor resident incompetent whom letters of
himself if 14 years of who has no parents guardianship are

Incompetents Who resigns or

Minor
Are Not Minors removed in a
prayed (Sec. 7, AM contractual
03-02-05-SC). trust, RTC
Grounds for Termination has
1. Competency of jurisdiction in
the ward has been the
judicially appointment
1. The ward has come determined; of new
of age; or 2. Guardianship trustee.
2. Has died (Sec. 25, is no longer
AM 03-02-05-SC). necessary; May sell,
3. Death of encumber or
guardian; mortgage May sell or
4. Death of ward. property if it is encumber
necessary for property of
Note: The petition involving minors is required to the purpose of ward if
be verified and accompanied by certification paying debts, income of
against forum shopping while that involving May sell or
expenses of estate is
incompetent must be verified only. However, no encumber
administration insufficient to
defect in the petition or verification shall render property of
or legacies, or maintain ward
void the issuance of letters of guardianship. estate held in
for the and his family
trust if
preservation and educate
RULE 98 of property or ward or the
necessary or
expedient
T RUST EES if sale will be sale or
upon order of
beneficial to encumbrance
the court.
heirs, legatees is for the
Executor/ or devisees benefit of
Guardian Trustee
Administrator (upon ward upon
Accounts are application to order of the
not under oath the court with court.
and except written notice
for initial and to the heirs).
final
Accounts Accounts Order of sale
submission of
must be under must be under Order of sale is valid for Order of sale
accounts, they
oath and filed oath and filed has no time only 1 year has no time
shall be filed
annually. annually. limit. after grant of limit.
only at such
times as may the same.
be Appointed to
REQUIRED carry into
by the court.
effect the
Appointed by
Court which provisions of
Court which the court to Appointed as
has a will or
settle estate of guardian.
has jurisdiction is written
decedent.
Court that has jurisdiction is RTC or MTC instrument
jurisdiction RTC (incom- (contractual
if appointed to
may be MTC carry into trust).
petent) or
or RTC. effect
Family Court Not exempted Must always May be
provisions of from filing exempted
(minors). file a bond.
a will; if bond even if from filing
trustee dies,

such bond if SECTION 1. WHERE TRUSTEE APPOINTED

exemption is provided in
Jurisdiction: The RTC or MTC in which the will
provided in the will or if
was allowed, if it be a will allowed in the
the will (bond beneficiaries
Philippines, otherwise by the RTC of the province
is only requested
exemption. in which the property, or some portion thereof,
conditioned
affected by the trust, is situated.
upon payment
of debts). A trustee is necessary to carry into effect:
Guardianship 1. A will creating a trust but the testator
is terminated Trusteeship is omitted to appoint a trustee in the Philippines
upon terminated (Testamentary Trust); and
Services of 2. Other written instruments where the trustee
attainment of upon turning
executor or therein declines, resigns, dies, or is removed
age of over the
administrator before accomplishment of trust (Contractual
majority of the property to
is terminated Trust).
minor or upon beneficiary
upon payment
gaining after
of debts of the
competency expiration of Note: This rule applies only to express trusts and
estate and
in the case of trust (period not to implied trusts which arise by operation of
distribution of
an may be law (Regalado, p. 153).
property to
incompetent provided for in
heirs.
(need court the will or
SECTION 2. APPOINTMENT AND POWERS OF
order for the trust contract).
TRUSTEE UNDER WILL. EXECUTOR OF
latter).
FORMER TRUSTEE NEED NOT ADMINISTER
No obligation TRUST
Must pay the Must pay the
to pay debts
debts of the debts of the No person succeeding to the trust as executor or
of beneficiary
estate. ward. administrator of a former trustee shall be required
or trustor.
to accept such trust.
Note: Notice to and consent of the beneficiary
Procedure for appointment of trustees under are not essential for the creation of the trust (De
Rule 98 Leon v. Molo-Peckson, G.R. No. L-17809,
December 29, 1962).
Allowance of the instrument The trustee to be appointed shall have the same
creating the trust (Probate of will) rights, powers, and duties, and in whom the estate
shall vest, as if he had been appointed by the
Petition by the executor/ administrator or testator.
the person appointed as trustee in the SECTION 3. APPOINTMENT AND POWERS OF
instrument NEW TRUSTEE UNDER A WRITTEN
INSTRUMENT
Appointment of the trustee by the When a new trustee appointed: When a trustee
court
under a written instrument declines, resigns, dies
or is removed before the objects of the trust are
Notice to all interested persons accomplished and no adequate provision is made
in such instrument supplying the vacancy.
Filing of bond by the trustee SECTION 4. PROCEEDINGS WHERE TRUSTEE

APPOINTED ABROAD
When land in the Philippines is held in trust for a

resident by a trustee who derives his authority

from abroad, such trustee must petition the RTC SECTION 7. APPRAISAL. COMPENSATION OF
where the land is situated, otherwise, the trust will TRUSTEE
be vacant and a new trustee will be appointed.
The compensation of the trustee is that which is
When a trust is created abroad for property in the provided by the instrument creating the trust.
Philippines, judicial approval is still needed though Otherwise, it shall be fixed by the court.
the trustor is alive.
SECTION 5. TRUSTEE MUST FILE BOND SECTION 8. REMOVAL OR RESIGNATION OF

TRUSTEE
Neglect of trustees to file a bond will be interpreted
by the court as resignation or a decline to accept Requisites:
the trust. 1. Petition filed by parties beneficially
interested;
However, he may be exempted from bond when 2. Notice to trustee; and
requested by: 3. Hearing.
4.
1. Testator; Who may petition: Parties beneficially interested.
2. All persons beneficially interested in the
trust. Grounds:
Nonetheless, the court may cancel such 1. Removal appears essential in the interest
exemption anytime. of petitioners;
2. Insanity;
3. Incapability of discharging trust;
SECTION 6. CONDITIONS INCLUDED IN BOND 4. Unsuitability.
(ASIM)
A trustee is at liberty to tender his resignation and
1. That he will render upon oath at least once apply for his release on the sole ground of
a year until his trust is fulfilled a true account of unwillingness to act further in the trust. But the
the property in his hands and of the acceptance of the resignation of a trustee is not a
management and disposition thereof, and such matter of course; due regard must be had for the
other accounts as the court may order; interest of the parties to be affected and there
2. That at the expiration of his trust he will must ordinarily be some ground for discharge
settle his accounts in court and pay over and other than the mere wish of the trustee to be
deliver all the estate remaining in his hands, or relieved (Herrera, p. 459).
due from him on such settlement, to the person
or persons entitled thereto; Note: The trustee is prohibited from acquiring the
3. That the trustee will make and return to the property whether by purchase, even in a public or
court, at such time as it may order, a true judicial action, either in person or through the
inventory of all the estate belonging to him as mediation of another. (Art. 1491, NCC)
trustee, which at the time of the making of such
inventory shall have come to his possession or SECTION 9. PROCEEDINGS FOR SALE OR
knowledge; ENCUMBRANCE OF TRUST ESTATE
4. That he will manage and dispose of all The Rules on Sale and Encumbrance of Trust
such estate, and faithfully discharge his trust in Estate shall conform as nearly as may be to the
relation thereto, according to law and the will of provisions on Sale and Encumbrance by
the testator or the provisions of the instrument or Guardians.
order under which he is appointed.
ADOPT ION
When the trustee is appointed as a successor to a
prior trustee, the court may dispense with the Preliminary Considerations
making and return of an inventory if one has
already been filed. Note: The provisions of the Rules of Court on
Adoption have been amended by the Domestic
Adoption Act of 1998 and the Inter-country

Adoption Act of 1995. Sec. 6 of Rule 99 was consanguinity or affinity of the Filipino spouse, the
already amended by Administrative Circular No. Domestic Adoption Act shall apply.
03-04-04 while Sec. 7 of Rule 99 was amended by
Administrative Circular No. 02-1-19-SC. Construction of adoption statutes: All the
sections are designed to protect the “best
Effective August 22, 2002, there is a new Rule on interests” of the adoptee (Herrera, p. 346).
Adoption (Section 33, Administrative Matter No.
02-6-02-SC). Adoption statutes, being humane and salutary,
hold the interest and welfare of the child to be of
Nature and concept of adoption: Adoption is a paramount consideration and are designed to
juridical act, a proceeding in rem, which creates provide homes, parental care and education for
between two persons a relationship similar to that unfortunate, needy or orphaned children and give
which results from legitimate paternity and filiation them the protection of society and family in the
(Herrera, p. 317). person of the adopter as well as to allow childless
couples or persons to experience the joys of
Only an adoption made in pursuance with the parenthood and give them legally a child in the
procedures laid down under A.M. No. 02-6-02-SC person of the adopted for the manifestation of their
Rules on Domestic and Inter-Country Adoption is natural parental instincts. Every reasonable
valid in this jurisdiction. intendment should be sustained to promote and
fulfill these noble and compassionate objectives of
Adoption is not an adversarial proceeding. There the law (Malkinsons v. Agrava, G.R. No. L-36309,
is no particular defendant since the proceeding November 26, 1973).
involves the status of a person it being an action in
rem (Herrera, p. 324). Subsequent laws
1. P.D. No. 603, otherwise known as Child
Purpose of adoption: The promotion of the and Youth Welfare Code, which expressly
welfare of the child and the enhancement of his repealed all the Civil Code provisions on
opportunities for a useful and happy life, and every Adoption, as amended by Executive Order No.
intendment is sustained to promote that objective 91;
(Daoang v, Court of Appeals, G.R. No. L-34568, 2. R.A. No. 8043 on Inter Country Adoption;
March 28, 1988). 3. Family Code of the Philippines which
repealed the substantive provisions of P.D. No.
Adoption is strictly personal between the adopter 603 and E.O. No. 91;
and the adopted (Teotico v. Del Val, G.R. No. L- 4. Family Courts Act of 1997 establising
18753, March 26, 1956). Family Courts vested with exclusive and original
jurisdiction over adoption cases;
5. R.A. No. 8552 otherwise known as
Adoption is a privilege, not innate or fundamental, Domestic Adoption Act; and
but rather a right created by statute. It is a 6. Implementing rules promulgated by the
privilege which is governed by the state’s
Supreme Court:
determination of what is for the best welfare of the
a. A.M. No. 02-1-19-SC Re: Proposed Rule
child (Lahum v. Sibulo, G.R. No. 143989, July 14,
on Commitment of Children Effective April 15,
2003). 2002;
b. A.M. No. 02-6-02-SC Rule on Domestic
Financial capacity: While petitioner claims that
and Inter-Country Adoption Effective August
she has the financial support and backing of her 22, 2002; and
children and siblings, the ability to support the
c.Rule on Custody of Minors and Writ of Habeas
adoptees is personal to the adopter, as adoption
Corpus in Relation to Custody of Minors
only creates a legal relation between the former
Effective May 15, 2003.
and the latter (Landingin v. Republic of the
Philippines, G.R. No. 164948, 27 June 2006).
Note: When a foreigner who is married to Filipino RULES ON D OM EST IC ADOPT ION
(Secs. 1-25, A.M. No. 02-6-02)
citizen seeks to adopt jointly with his/her spouse
as relative within the fourth civil degree of
Procedure for Domestic Adoption under AM-
02-6-02-SC

to have legal capacity to adopt by his country;

Petition for Domestic
and
Adoption
5. That his government allows the adoptee to
enter his country as his adopted child.
Order of Hearing by the
court
The requirements on residency and certification
of the alien’s qualification to adopt in his country
Child and Home Study may be waived for the following:
Reports by the Social
Worker a. A former Filipino citizen who seeks to
adopt a relative within the 4th degree of
consanguinity or affinity; or
Hearing on the Petition for b. One who seeks to adopt the legitimate
Adoption child of his Filipino spouse; or
c.One who is married to a Filipino citizen and
seeks to adopt jointly with his spouse a relative
Supervised Trial Custody within the 4th degree of consanguinity or
affinity of the Filipino spouse.
C.The guardian with respect to the ward after
Adoption Decree issued
the termination of the guardianship and
by the court
clearance of his financial accountabilities.
Who may be adopted (Sec. 5)
1. Any person below 18 years of age who has

Who may adopt (Sec.4) been judicially declared available for adoption or
voluntarily committed to DSWD;
A. Any Filipino Citizen – 2. The legitimate child of one spouse, by the
1. Of legal age; other spouse;
2. In possession of full civil capacity and legal 3. An illegitimate child, by a qualified adopter
rights; to raise the status of the former to that of
3. Of good moral character; legitimacy;
4. Has not been convicted of any crime involving 4. A person of legal age regardless of civil
moral turpitude; status, if, prior to the adoption, said person has
5. Emotionally and psychologically capable of been consistently considered and treated by the
caring for children; adopters as their own child since minority;
6. At least 16 years older than the adoptee. 5. A child whose adoption has been
Except: when the adopter is the adoptee’s previously rescinded;
biological parent or the spouse of the 6. A child whose biological or adoptive
adoptee’s parent; and parents have died, but no proceedings shall be
initiated within 6 months from the time of death
7. In a position to support and care for his/her of said parents;
children in keeping with the means of the 7. A child not otherwise disqualified by law or
family. these rules.
B. Any alien possessing the same qualifications
as above, Provided:
1. That his country has diplomatic relations “A child legally available for adoption”
with the Philippines;
It refers to a child who has been voluntarily or
2. That he has been living in the Philippines
for at least 3 continuous years prior to the filing involuntarily committed to the DSWD or to a duly
of the application for adoption; licensed and accredited child-placing or child
3. Maintains residence until the adoption caring agency, freed of the parental authority of
decree is entered; his biological parents, or in case or rescission of
4. Certified by his diplomatic or consular adoption, his guardian or adopter/s (Sec. 3).
office or any appropriate government agency

Two ways to commit a child or is the spouse of the adoptee’s parent; and is
in a position to support and care for his
1. Administrative/Voluntary: In this case, children in keeping with the means of the
the parent or guardian of the child voluntarily family and has undergone pre-adoption
committed him to the DSWD or any duly services as required by Section 4 of R.A. No.
licensed child placement or child caring agency. 8552.
The child must be surrendered in writing. Such B. If the adopter is an alien, the petition
written instrument must be notarized and signed shall allege the following:
in the presence of an authorized representative 1. The jurisdictional facts;
of the department after counseling has been 2. Sub-paragraph A.2 above;
made to encourage the parents to keep the child 3. That his country has diplomatic relations
(Sec. 5, AM 02-1-19-SC). with the Republic of the Philippines;
2. Judicial/Involuntary: Follow the 4. That he has been certified by his diplomatic
procedure in Proposed Rule on Commitment of or consular office or any appropriate
Children (AM 02-1-19-SC) under special laws. government agency to have the legal capacity
to adopt in his country and his government
Joint adoption of spouses allows the adoptee to enter his country as his
adopted child and reside there permanently as
General rule: Husband and wife shall jointly adopt an adopted child; and
(Art. 185, Family Code). 5. That he has been living in the Philippines
for at least three (3) continuous years prior to
Exceptions: the filing of the petition and he maintains such
residence until the adoption decree is entered.
1. If one spouse seeks to adopt the legitimate
child of the other; The requirements of certification of the alien’s
2. If one spouse seeks to adopt his own qualification to adopt in his country and of
illegitimate son/daughter, provided that the other residency may be waived if the alien:
spouse has signified his consent thereto; a. Is a former Filipino citizen who seeks to
3. If the spouses are legally separated from adopt a relative within the fourth degree of
each other (Sec. 4, A.M. 02-6-02-SC). consanguinity or affinity; or
b. Seeks to adopt the legitimate child of his
This is in consonance with the concept of joint Filipino spouse; or
c.Is married to a Filipino citizen and seeks to
parental authority over the child which is the ideal
adopt jointly with his spouse a relative within
situation. As the child to be adopted is elevated to the fourth degree of consanguinity or affinity of
the level if illegitimate child, it is but natural to the Filipino spouse.
require both the spouses to adopt jointly (Republic C. If the adopter is the legal guardian of
v. Toledano, G.R. No. 9447, June 8, 1994). the adoptee:
Venue (Sec.6) The petition shall allege that guardianship had
been terminated and the guardian had cleared
Family Court where the prospective adoptive his financial accountabilities.
parents reside. D. If the adopter is married, the spouse
shall be a co-petitioner for joint adoption
Contents of the petition (Sec.7) except if:
1. One spouse seeks to adopt the legitimate
A. If the adopter is a Filipino citizen, the child of the other; or
petition shall allege the following: 2. One spouse seeks to adopt his own
1. The jurisdictional facts; illegitimate child and the other spouse signified
2. That the petitioner is of legal age, in written consent thereto; or
possession of full civil capacity and legal 3. The spouses are legally separated from
rights; is of good moral character; has not each other.
been convicted of any crime involving moral E. If the adoptee is a foundling:
turpitude; is emotionally and psychologically The petition shall allege the entries which should
capable of caring for children; is at least 16 appear in his birth certificate, such as name of
years older than the adoptee, unless the child, date of birth, place of birth, if known; sex,
adopter is the biological parent of the adoptee

name and citizenship of adoptive mother and 4. That the Department, child-placement or
father, and the date and place of their marriage. child-caring agency is authorized to give its
F. If the petition prays for a change of consent (Sec. 9).
name: Abandonment
It shall also state the cause or reason for the
change of name. In its ordinary sense, it means to forsake entirely,
to renounce utterly (Herrera, p. 351).
All petitions shall allege:
1. The first name, surname or names, age In reference to abandonment of a child by his
and residence of the adoptee as shown by his parent, the act of abandonment imports “any
record of birth, baptismal or foundling certificate conduct of the parent which evinces a settled
and school records; purpose to forego all parental duties and relinquish
2. That the adoptee is not disqualified by law all parental claims to the child.” It means “neglect
to be adopted; or refusal to perform the natural and legal
3. The probable value and character of the obligations of care and support, which parents
estate of the adoptee; owe their children” (Cang v. Court of Appeals, G.R.
4. The first name, surname or names by No. 105308, September 25, 1998).
which the adoptee is to be known and registered
in the Civil Registry. Change of name: The present Rule on Domestic
Adoption allows the petition to include an
application for change of name (Sec. 10).
The petition shall be verified with a certificate of
non-forum shopping and specifically state at the The title or caption must contain;
heading of the initiatory pleading whether the 1. The registered name of the child;
petition contains an application for a change of 2. Aliases or other names by which the child
name, rectification of simulated birth, voluntary or has been known; and
involuntary commitment of children, or declaration 3. The full name by which the child is to be
of child as abandoned, dependent or neglected. known.
Rectification of simulated birth Annexes to the petition

It shall allege that:
1. Petitioner is applying for rectification of a A. Birth, baptismal or foundling certificate, as
simulated birth; the case may be, and school records showing
2. The simulation of birth was made prior to the name, age and residence of the adoptee;
the date of effectivity of R.A. No. 8552, and the
application for rectification of the birth B. Affidavit of consent of the following:
registration and the petition for adoption were 1. The adoptee, if 10 years of age or over;
filed within five years from said date; 2. The biological parents of the child, if
3. The petitioner made the simulation of birth known, or the legal guardian, or the child-
for the best interests of the adoptee; and placement agency, child-caring agency, or the
4. The adoptee has been consistently proper government instrumentality which has
considered and treated by petitioner as his own legal custody of the child;
child (Sec.8). 3. The legitimate and adopted children of the
adopter and of the adoptee, if any, who are 10
Adoption of a foundling, an abandoned, years of age or over;
dependent or neglected child 4. The illegitimate children of the adopter
The petition shall allege: living with him who are 10 years of age or
1. The facts showing that the child is a over; and
foundling, abandoned, dependent or neglected; 5. The spouse, if any, of the adopter or
2. The names of the parents, if known, and adoptee (Sec.11).
their residence. If the child has no known or
living parents, then the name and residence of
the guardian, if any; Parental consent
3. The name of the duly licensed child- Parental consent required by law in adoption
placement agency or individual under whose
refers to parents who have not abandoned their
care the child is in custody; and
child. Accordingly, one whom such child was

given by his mother, who does not wish to be 1. Adoptee’s registered name in the birth
identified, is considered the guardian of the child certificate, and the names by which the
and can give valid consent to the child’s adoptee has been known (to be stated in the
adoption, as said child is considered as caption);
abandoned (Duncan v. CFI Rizal, G.R. No. L- 2. Petition’s purpose;
30576, February 10, 1976). 3. Complete name which the adoptee will use
if the petition is granted;
Nevertheless, the requirement of written consent 4. Hearing’s date and place of hearing (within
can be dispensed with if the parent has 6 months from the date of the order’s
abandoned the child or that such parent is issuance)
insane or hopelessly intemperate, provided that 5. Directive to the social worker to prepare
and submit child and home study reports
sufficient facts are alleged in the petition in order
before the hearing, if such reports were not
to warrant exemption (Cang v. Court of Appeals, attached to the petition due to unavailability at
supra). the time of the filing; and
C. Child study report on the adoptee and his 6. Directive to the social worker to conduct
biological parents; counseling sessions with the biological parents
and to submit a report before the hearing (Sec.
D. If the petitioner is an alien, certification by 12).
his diplomatic or consular office or any
appropriate government agency that he has the The necessary jurisdictional requirements should
legal capacity to adopt in his country and that his be indicated in the petition for adoption. Thus,
government allows the adoptee to enter his the name of the person to be adopted is that
country as his own adopted child unless appearing in the civil registry and the court does
exempted under Section 4(2); not acquire jurisdiction if a different name is
carried in the notice of publication (Cruz v.
E. Home study report on the adopters. If the Republic of the Philippines, G.R. No. L-20927,
adopter is an alien or residing abroad but July 26, 1966).
qualified to adopt, the home study report by a
foreign adoption agency duly accredited by the Role of the Solicitor General: When the
Inter-Country Adoption Board; and petition includes a prayer for change of name,
notice to the Solicitor General is mandatory to
protect the interests of the State. On other
F. Decree of annulment, nullity or legal matters, the courts are given discretion to decide
separation of the adopter as well as that of the whether such notice should be given (Herrera, p.
biological parents of the adoptee, if any. 347).
Procedure
B. Child & Home Study Reports – The
A. Order of hearing social worker verifies with the Civil Registry the
1. It must be published at least once a week real identity and the name of adoptee and the
for 3 successive weeks; fact that he is legally available for adoption. If the
2. At the discretion of the court, copies of the adoptee’s birth was not registered, the social
order of hearing shall be furnished to the office worker shall register the adoptee and secure a
of the Solicitor General. Through the provincial certificate of foundling or late registration
or city prosecutor, the DSWD and the (Sec.13).
biological parents of the adoptee, if known;
3. If a change in the name of the adoptee is
prayed for in the petition, notice to the Solicitor The social worker may make recommendations
General shall be mandatory; to the court if he finds some grounds to deny the
4. If the petition and attachments are petition.
sufficient in form and substance, the court shall
issue an order (Sec.12). The social worker shall establish:
1. The child is legally available for adoption;
Contents of order 2. The documents in support thereof are valid
and authentic;

3. The adopter has sincere intentions towards the 3. One who is married to a Filipino citizen and
adoptee; seeks to adopt jointly with his spouse the latter’s
4. The adoption shall inure to the best interests of relative within the 4th degree.
the child.
Temporary Parental Authority: It is provisionally
In case of alien adopter, the home study report vested in the adopting parents during the period of
must show: trial custody, before the issuance of a decree of
adoption, precisely because the adopting parents
1. Adopter’s legal capacity to adopt;
2. His government allows the adoptee to are given actual custody of the child during such
enter his country as his adopted child in the trial period (Herrera, p. 356).
absence of the certification required under However, where the trial custody had not begun or
Sec. 7(b), R.A. No. 8552.
had already been completed at the time of quasi-
C. Hearing – Hearing is to be held within 6 delict committed by a child to be adopted, the
months from the date of issuance of the order adopting parents cannot assume any liability
(Sec.14). therefor. The natural parents should be joined as
indispensable parties to the suit for damages
(Tamargo v. Court of Appeals, G.R. No. 8044,
Except: In case of application for change of June 3, 1992).
name which hearing must not be within 4 months
after last publication nor within 30 days prior to If the child to be adopted is below 7 years of age
election. and is placed with the prospective adopter through
a DSWD pre-adoption placement authority, the
The petitioner and the adoptee must personally court shall order that the prospective adopter shall
appear and the former must testify in court. enjoy all the benefits to which the biological parent
D. Supervised Trial Custody (STC) – Before is entitled from the date the adoptee is placed with
issuance of decree of adoption the court shall him.
give the adopter trial custody of the adoptee for The social worker shall submit to the court a report
at least 6 months (Sec.15).
on the result of the trial custody within 2 weeks
after its termination.
Ratio: In order for the parties to adjust E. Decree of adoption – If the court is
psychologically and emotionally with each other convinced from the trial custody report and the
and to establish a bonding relationship. evidence presented, that the adoption shall
Note: Court may reduce or exempt parties from redound to the best interest of the child, an
adoption decree shall be issued (Sec.16).
Supervised Trial Custody, if it finds that the
same shall be for the best interest of the adoptee.
The decree of adoption shall take effect as of the
The trial custody shall be monitored by the social
date of filing of the original petition.
worker who submitted and prepared the case
studies. Contents of the adoption decree
General rule: Alien adopter must complete the 6 1. The name by which the child is to be
months Supervised Trial Custody. known;
2. Order to the Clerk of Court to issue to the
Exception: Same as exemptions from adopter a certificate of finality upon expiration
requirements of residency and certification: of the 155-day reglementary period within
which to appeal;
1. A former Filipino citizen who seeks to
3. Order to the adopter to submit a certified
adopt a relative within the 4th degree;
true copy of the decree of adoption and the
2. One who seeks to adopt the legitimate
certificate of finality to the Civil Registrar where
child of his Filipino spouse;
the child was originally registered within 30
days from receipt of the certificate of finality;

4. In case of change of name, the decree 2. All legal ties between biological parents
shall be submitted to the Civil Registrar where and the adoptee shall be severed, except when
the court issuing the same is situated; biological parent is spouse of adopter;
5. Order the Civil Registrar: 3. Adoptee shall be considered legitimate
a. To annotate on the adoptee’s original birth child of adopter for all intents and purposes;
certificate the decree of adoption within 30 4. Adopters shall have reciprocal rights of
days from receipt of certificate of finality; succession without distinction from legitimate
b. To issue new birth certificate which shall not filiation.
bear any notation that it is new or amended The decree of adoption shall have a retroactive
certificate which shall allow: registry number, effect from the time of the petition.
date of registration, name of child, sex, date
of birth, place of birth, name and citizenship “It is a settled rule that adoption statutes, being
of adoptive parents and the date and place of human and salutary, should be liberally construed
their marriage, if applicable; to carry out the beneficent purposes of adoption. x
c. To seal the original birth certificate in the civil x x. Hence, since there is no law prohibiting an
registry records which can be opened only illegitimate child adopted by her natural father, x x
upon the order of the court which issued the x, to use, as middle name her mother’s surname,
decree of adoption; we find no reason why she should not be allowed
d. To submit to the court issuing the decree of to do so” (In Re: Adoption of Stephanie Nathy
adoption proof of compliance with all the
Garcia, G.R. No. 148311, March 31, 2005).
foregoing within 30 days from date of receipt
of the decree.
Who may rescind the adoption? The adopter

In case of change of name, the decree shall be cannot rescind the adoption, only the adoptee may
submitted to the Civil Registrar where the court rescind within 5 years from reaching the age of
issuing the same is situated. majority or after recovery from incompetency.
An amended birth certificate shall be issued. Such a petition for rescission shall be filed in the
The original birth certificate shall be stamped Family Court where the adoptee resides. In case
“cancelled” and shall be sealed in the Civil of a minor, he shall be assisted by a social work
Registry records. from DSWD or by the minor’s guardian, if he is
over 18 years of age but is incapacitated.
Book of adoptions: All matters relative to
adoption and all incidents arising after the The adopter may not rescind the adoption;
issuance of the decree shall be recorded in the however, he may disinherit the adopted child (Art.
919, Civil Code).
book of adoption kept by the clerk of court of the
Family Court (Sec. 17). Grounds for rescission (Sec. 19)
Confidentiality of proceedings and records 1. Repeated physical and verbal
maltreatment despite having undergone
General Rule: After compliance with jurisdictional
counseling;
requirements, all adoption hearings shall be 2. Attempt on the adoptee’s life;
confidential and shall not be open to the public. All 3. Sexual assault or violence;
related records shall be kept strictly confidential 4. Abandonment or failure to comply with
(Sec. 18). parental obligations.
Exception: For security reasons or for the best
interest of the child, the Court may, upon Order to answer: The court shall order the
meritorious grounds allow the release of the adverse party to file an answer within 15 days
information with restrictions, if necessary (Herrera, from the receipt thereof (Sec. 22).
p. 348).
Judgment: If the court finds that the petition’s
Effects of adoption allegations are true, it shall order the rescission of
adoption (Sec. 23).
1. Adopter will exercise parental authority;

The court shall order that:

1. The biological parents’ parental authority, Who may adopt:
or the DSWD’s legal custody, shall be restored if
the adoptee is still a minor or incapacitated; 1. Any alien or Filipino citizen permanently
2. The reciprocal rights and obligations of the residing abroad who is at least twenty-seven (27)
adopter and the adoptee shall be extinguished; years of age;
3. The successional rights shall revert to its 2. Other requirements are the same as with
status prior to adoption, as of the date of R.A. No. 8552.
judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be Who may be adopted: Only a child legally
respected;
available for domestic adoption may be the subject
4. The adoptee shall use the name stated in
his original birth/foundling certificate; of inter-country adoption (Sec.29).
5. The Civil Registrar where the adoption A child under the Inter-Country Adoption Act is
decree was registered shall cancel the new birth defined as any person below fifteen (15) years of
certificate of the adoptee and reinstate his
age.
original birth/foundling certificate.
The Board shall ensure that all possibilities for
adoption of the child under the Family Code have
Service of judgment – A certified true copy of the been exhausted and that inter-country adoption is
judgment and a certificate of finality shall be in the best interest of the child (Section 7, R.A. No.
served by the petitioner upon the Civil Registrar 8043).
within 30 days from receipt of the certificate of
finality. The Civil Registrar shall enter the
rescission decree in the register and submit proof Contents of petition
of compliance to the court within 30 days from Petitioner must allege:
receipt of the decree (Sec. 24).
1. His age and the age of the child to be
adopted, showing that he is at least twenty-
I NT ER -C OUNT RY ADOPT ION seven (27) years of age and at least sixteen (16)
years older than the child to be adopted at the
time of application, unless the petitioner is the
parent by nature of the child to be adopted or the
Objectives spouse of such parent, in which case the age
1. To consider inter-country adoption as an difference does not apply;
alternative means of child care, if the child 2. If married, the name of the spouse who
cannot be placed in a foster/adoptive family or must be joined as co-petitioner except when the
cannot be cared for in the Philippines; adoptee is a legitimate child of his spouse;
2. To ensure that the child enjoys the same 3. That he has the capacity to act and
protection accorded to children in domestic assume all rights and responsibilities of parental
adoption; authority under his national laws, and has
3. To ensure that the placement does not undergone the appropriate counseling from an
result in improper financial gain for those accredited counselor in his country;
involved (Sec. 27). 4. That he has not been convicted of a crime
involving moral turpitude;
5. That he is eligible to adopt under his
Where to file petition national law;
6. That he can provide the proper care and
1. A verified petition to adopt a Filipino child support and instill the necessary moral values
may be filed by a foreign national or Filipino and example to all his children, including the
citizen permanently residing abroad with the child to be adopted;
Family Court having jurisdiction over the place 7. That he agrees to uphold the basic rights of
where the child resides or may be found; the child, as embodied under Philippine laws and
2. It may be filed directly with the Inter- the U.N. Convention on the Rights of the Child,
Country Adoption Board (Sec. 28).

and to abide by the rules and regulations issued An adoption created under the law of a foreign
to implement the provisions of R.A. No. 8043; country is entitled to registration in the
8. That he comes from a country with which corresponding civil register of the Philippines. The
the Philippines has diplomatic relations and effects of such adoption shall be governed by the
whose government maintains a similarly law of the Philippines (Marcaida v. Aglubat, G.R.
authorized and accredited agency and that No. L-24006, November 25, 1967).
adoption of a Filipino child is allowed under his
national laws; and
9. That he possesses all the qualifications
and none of the disqualifications provided in this “Best interest of the minor” standard
Rule, in R.A. No. 8043 and in all other applicable “Best interest of the minor” standard refers to the
Philippine laws (Sec. 30). totality of the circumstances and conditions as are
most congenial to the survival, protection, and
Annexes : The following must be in writing and feelings of security of the minor encouraging to his
officially translated in English: physical, psychological and emotional
1. Birth certificate of petitioner; development. It also means the least detrimental
2. Marriage contract, if married, and, if available alternative for safeguarding the growth
applicable, the divorce decree, or judgment and development of the minor (Sec. 14 A.M. No.
dissolving the marriage; 03-04-04-SC 2003-04-22).
3. Sworn statement of consent of
petitioner’s biological or adopted children above
Inter-Country
ten (10) years of age; Domestic Adoption
Adoption
4. Physical, medical and psychological
evaluation of the petitioner certified by a duly Extrajudicial
licensed physician and psychologist; Judicial Adoption
Adoption
5. Income tax returns or any authentic
document showing the current financial R.A. No. 8552
capability of the petitioner; (Domestic Adoption
6. Police clearance of petitioner issued Act) amended Arts.
within six (6) months before the filing of the R.A. No. 8043 (Inter-
183-193 of the Family
petitioner; Country Adoption Act)
7. Character reference from the local Code and is the
governing law for governs the adoption
church/minister, the petitioner’s employer and a of Filipinos by
member of the immediate community who have Filipino citizens
foreigners, and is
known the petitioner for at least five (5) years; adopting other
implemented by the
8. Full body postcard-size pictures of the Filipinos (whether
relatives or strangers) Inter-Country Adoption
petitioner and his immediate family taken at least
with some exceptions. Board.
six (6) months before the filing of the petition
(Sec.31).
Note: Items (5) to (7) are not applicable in a

Procedure governed Procedure governed
domestic adoption. by Amended
by A.M. No. 02-06-02-
SC. Implementing Rules
Functions of the RTC: The Regional Trial Court, and Regulations on
after finding the petition (in case of foreigners who Inter Country Adoption
file a petition for adoption in the Philippines under Act approved January
the Domestic Adoption Act of 1998 otherwise Rescission of 8, 2004.
known as RA 8552) to be sufficient in form and adoption is no longer
substance and a proper case for inter-country allowed under R.A.
adoption, shall immediately transmit the petition to No. 8552.
the Board for appropriate action (Sec. 30 of
Amended Implementing Rules And Regulations Definition of a Child
On Inter-Country Adoption or R.A. No. 8043).
A person below 15
“Child” is a person
years of age unless
below 18 years of
sooner emancipated

Inter-Country Inter-Country
Domestic Adoption Domestic Adoption
Adoption Adoption
age. by law. adoption and example to all his

maintains such children, including
Who may Adopt residence until the the child to be
adoption decree is adopted;
a. Any Filipino citizen;
An alien or a Filipino entered; 7. Agrees to
b. Any alien
4. He/she has been uphold the basic
possessing the citizen permanently
certified by his/her rights of the child as
same qualifications residing abroad may
diplomatic or embodied under
for Filipino file an application for
inter-country adoption consular office or Philippine laws, the
nationals;
any appropriate UN Convention on
c. Guardian with of a Filipino child.
government agency the Rights of the
respect to the ward
that he/she has the Child, and to abide
Qualifications
legal capacity to by the rules and
Filipino Citizen 1. At least 27 adopt in his/her regulations issued to
years of age and at country; and implement the
1. Legal age; least 16 years older 5. His/her government provisions of this Act;
2. In possession of full than the adoptee at allows the adoptee 8. Comes from a
civil capacity and the time of the to enter his/her country with whom
legal rights; application for country as his/her the Philippines has
3. Good moral adoption unless the adopted diplomatic relations
character; adopter is the parent son/daughter and whose
4. Has not been by nature of the child government
convicted of any to be adopted or the maintains a similarly
crime involving Residency and authorized and
spouse of such
moral turpitude; parent; certification of the accredited agency
5. Emotionally and 2. If married, alien’s qualification to and that adoption is
psychologically his/her spouse must adopt may be waived allowed under his/her
capable of caring for jointly file for the on any of the national laws;
children; and adoption; following: 9. Possesses all
6. At least 16 years 3. Has the the qualifications and
older than the 1. A former Filipino none of the
capacity to act and
adoptee (waived citizen who seeks to disqualifications
assume all rights and
when the adopter is adopt a relative provided herein and
responsibilities of
the biological parent within the 4th civil in other applicable
parental authority
of the adoptee, or is degree of Philippine laws.
under his national
the spouse of the consanguinity or
laws, and has
adoptee’s parent) affinity;
undergone the
2. One who seeks to
appropriate
adopt the legitimate
Alien counseling from an
son/daughter of
accredited counselor
his/her Filipino
1. Same as the in his/her country;
spouse;
qualifications for 4. Has not been
3. If one spouse seeks
Filipino citizens; convicted of a crime
to adopt his/her own
2. His/her country has involving moral
illegitimate
diplomatic relations turpitude
son/daughter:
with the Philippines; 5. Eligible to
Provided, however,
3. He/she has been adopt under his/her
that the other
living in the national law;
spouse has signified
Philippines for at 6. In a position to
his/her consent
least 3 continuous provide the proper
thereto; or
years prior to the care and support and
4. If the spouse are
filing of the to give the necessary
legally separated
application for moral values and

Adoption Adoption
from each other previously

rescinded; or
6. A child whose
In case husband and biological or
wife jointly adopt, or adoptive parent(s)
one spouse adopts has died: Provided
the illegitimate that no proceedings
son/daughter of the shall be initiated
other, joint parental within 6 months
authority shall be from the time of
exercised by the death of said
spouses. parent(s).
Where to file application
RTC (Family Court)

Guardian having the jurisdiction
over the child, or with
Only after the
the Inter-Country
termination of the
Adoption Board,
guardianship and
through an
clearance of his/her
intermediate agency,
financial
whether governmental
accountabilities
or an authorized and
Who may be adopted accredited agency, in
the country of the
1. Any person below prospective adoptive
18 years of age who
has been Family Court of the parents.
administratively or place where the
judicially declared adopter resides
available for After filing: (a) if filed in
adoption; the Family Court, it
2. Legitimate After filing: The shall determine the
son/daughter of one petition shall not be sufficiency of petition in
spouse by the other set for hearing without respect to form and
spouse
a case study report by substance, if sufficient,
3. Illegitimate child by
a licensed social the petition is
a qualified adopter Only a legally free child transmitted to Inter-
worker.
to improve his/her may be the subject of
Country Adoption
status to that of inter-country adoption.
legitimacy; Board; (b) if petition is
4. A person of legal filed with Inter-Country
age if, prior to the Adoption Board, it shall
adoption, said conduct the matching
person has been of the applicant with an
consistently adoptive child; (c) after
considered and matchmaking, the child
treated by the is personally fetched
adopter(s) as by the applicant for the
his/her own child trial custody which
since minority; takes place in the
5. A child whose foreign country where
adoption has been

Adoption Adoption
the adopter resides. of the child is to be

resorted only as a last
What Petition for Adoption may include
resort; If successful,
1. Prayer for change of the Board shall
name; transmit a written
2. Ratification of consent for the
simulated birth; Only petition for adoption to be
3. Declaration that the adoption executed by the
child is a foundling, DSWD, and the
abandoned, applicant then files a
dependent or petition for adoption in
neglected child. his/her country.
Annexes
Decree of Adoption
Income tax returns,
Income tax returns,
police clearance, Issued by the Family
police clearance,
character reference, Court having Issued by a foreign
character reference,
family picture, birth jurisdiction over the court
family picture, birth
certificate of the case.
certificate of the
adopter are not
adopter are required to Penalties
required to be
be annexed in the
annexed in the Any government
petition
petition official, employee or
Publication functionary who shall
be found guilty of
Petition must be violating any of the
Same
published at least provisions of this
once a week for 3 adoption laws shall
successive weeks in a No publication automatically suffer
newspaper of general requirement suspension until the
circulation in the resolution of the case
province or city where
the court is situated
Supervised Trial Custody RESCISSION OF ADOPT ION
Supervised trial
custody in the country
of adopter for at least Under the domestic adoption act of 1998, the
adopter can no longer rescind the adoption. He
Supervised trial 6 months and is can merely disinherit the adoptee in accordance
custody period in the mandatory before a with the provisions of the Civil Code (Art. 919, Civil
Philippines for at least decree of adoption is Code).
6 months (Court may issued (expenses are
reduce period or borne by the adopter). Rescission relates only as to the date of the
exempt parties from judgment. Hence, vested rights prior to rescission
trial custody). should be respected (Sec. 20, Art. VI, R.A. No.
If unsuccessful, the 8552).
Board shall look for
another prospective Applicability: The grounds for revocation of an
applicant. Repatriation adoption refer only to an adoption validly decreed,
not to an adoption void from the beginning

because tainted with fraud (Ragudo v. Pasno, G.R. 1. Parental authority of biological parent or legal
No. L-16642, April 18, 1962). custody of DSWD will be restored;
2. Reciprocal rights of adoptee and adopter will be
Who files: extinguished;
3. Vested rights acquired prior to judicial rescission
1. Adoptee
shall be respected;
a. Over 18 years of age; or 4. Successional rights shall revert to its status prior
b. If still a minor with assistance of DSWD.
to adoption, as of the date of judgment of judicial
2. Guardian or counsel, if over 18 but
rescission;
incapacitated (Sec.19).
5. Adoptee shall use the name stated in his original
birth or foundling certificate;
Grounds for rescission (PASA) 6. Civil registrar will reinstate his original birth or
foundling certificate.
1. Repeated physical violence and verbal Agreement between the adopter and adopted:
maltreatment by the adopter despite having A subsequent agreement between them nor
undergone counseling; between adopter and natural parents cannot by
2. Attempt on the life of the adoptee; itself effectuate the revocation of adoption
3. Sexual assault or violence; or
(Herrera, p. 442).
4. Abandonment or failure to comply with parental
obligations (Sec.19). Collateral attack on the validity of adoption:
The settled rule is that a finding that the requisite
Venue: Family Court of the city or province where jurisdictional fact exists, whether erroneous or not,
the adoptee resides (Sec.20). cannot be questioned in a collateral proceeding,
for a presumption arises in such cases where the
Note: Unlike in revocation of guardianship, validity of the judgment is thus attacked that the
revocation of adoption is a separate proceeding necessary jurisdictional facts were proven (Herrera,
from the adoption. A subsequent petition for p. 442).
revocation of adoption is neither a continuation of
nor an incident in the proceedings for adoption but RULE 101
an entirely new proceeding. It would appear that
this petition may be filed in a court other than the P ROCEEDINGS FOR
court which issued the adoption (De la Cruz v. De HOSPIT ALIZAT ION OF I NSANE
la Cruz, L-19391, 29 September 1964). P ERSONS
Procedure for the Hospitalization of Insane
Period within which to file verified petition Persons
(Sec.21): Within 5 YEARS from reaching the age
of majority or after recovery from incompetency.
Petition for commitment filed in RTC
Adverse party shall file his answer within 15 days

Court order fixing the date and place for
from receipt of order of court requiring him to
hearing and ordering the Sheriff to produce
answer (Sec. 22).
the alleged insane person in the hearing
The court does not have jurisdiction to annul after
the period fixed by the Rule, a decree of adoption.
For reasons of public order, judicial litigations must Service of Notice of the Court Order to
have an end; hence, decisions must not be the alleged insane person and to the
changed after the expiration of the period, it being person who has custody of him/her
beyond the jurisdiction or control of courts (Dayrit
v. Piccio, G.R. No. L-7858, October 26, 1955).
Hearing on the Petition
Effects of Judgment of Rescission (PReVS-NC) Judgment granting/denying the Petition

Application of the rule: The rule is applicable b. The one having charge of him, or on such
only when the hospitalization of the insane person of his relatives residing in the province/city as
is for the public welfare or for the welfare of said the judge may deem proper.
person, who in the judgment of the Director of 3. The court shall order the sheriff to produce
Health, is insane, provided that the one who has the alleged insane person (if possible) on the
date of hearing;
charge of him is opposed to such confinement
4. Upon satisfactory proof that the
(Herrera. P. 462).
commitment is necessary and that his relatives
are unable to take proper custody and care of
him, the court shall order his commitment in a
Hospitalization of the Guardianship hospital/asylum;
Insane (Rule 101) 5. The court shall make proper provisions for
(Rules 92-97) the custody of the ward’s property until a
guardian is properly appointed.
For the protection of For the purpose of
protecting the protecting the person Right of the insane person to notice and
community at large and the estate of the hearing: Ordinarily, the person whose liberty is
and in the nature of insane (Herrera, p. sought to be restrained is entitled by law to proper
police regulations 463). notice to such proceeding and by force of statute
(Herrera, p. 463). other persons may be entitled to notice. While it
has been held that want of notice does not render
the proceedings invalid and that the commitment
is not subject to collateral attack, it has also been
SECTION 1. VENUE. PETITION FOR held that want of notice renders the proceeding
COMMITMENT void or at least, is good ground for vacating the
order of commitment (Herrera, p. 464).
Venue: RTC of province where the person alleged
to be insane is found.
SECTION 3. HEARING AND JUDGMENT
Who files: Director of Health with the assistance
of city or provincial prosecutor. Burden of proof: In all actions and proceedings,
the burden of proving insanity is on the plaintiff
who alleges it; but where it is set up as an
Insanity
affirmative defense, the burden of proving rests on
A condition of the mind which is so impaired in
the defendant.
function or so deranged as to induce a deviation
from normal conduct on the person so afflicted. Estate of the insane person: Pending an appeal
from the judgment declaring a person to be insane,
Requisites: the trial court has jurisdiction to order a third party
to appear and show cause why the property of the
1. Director of Health is of the opinion that the insane should not be delivered to the guardian. It
commitment of the person alleged to be insane is the duty of the court to protect the property of
is for public welfare or for the welfare of said the insane pending the appeal (Mercader v.
person; Wislizenus, G.R. No. L-11739, August 25, 1916).
2. Such person or the one having charge of him is
opposed to his being taken to a hospital or SECTION 4. DISCHARGE OF INSANE
asylum.
Director of Health may file this petition in the RTC
which ordered the commitment, when he is of the
SECTION 2. ORDER FOR HEARING opinion that the person is permanently or
temporarily cured or may be released without
1. The court shall fix a date and place for danger.
hearing where all concerned may appear to
contest the petition; The Health Secretary cannot order release without
2. Copies of the notice of hearing shall be the approval of the RTC. On the other hand, the
served upon: RTC cannot order release without
a. The person alleged to be insane; and recommendation from the Health Secretary (Chin

Ah Foo v. Concepcion, G.R. No. L-33281, March

31, 1930). Petition alleging the illegal confinement or
detention.
SECTION 5. ASSISTANCE OF FISCAL IN THE
PROCEEDING
Issuance of the writ by the court having jurisdiction.
RULE 102
Service of the writ by leaving the original with the
H ABEAS C ORPUS person to whom it is directed and preserving a
copy on which to make return of service.
Certiorari, Hearing by the court.

Prohibition and Habeas Corpus
Mandamus
Recommitment, bail or discharge of the detained
Special Civil Action person.
Special Proceeding
(Rule 65)
Execution of the writ by delivering the body of the
It reaches the record It reaches the body person detained to the court and return of service.
but not the body; but not the record;
concerned with errors inquiry on the legality
committed by a court. of the detention. SECTION 1. TO WHAT HABEAS CORPUS
EXTENDS
Direct attack. Collateral attack.
1. Cases of illegal confinement or detention by
Failure of respondent which a person is deprived of his liberty; and
to file comment will not 2. Cases by which the rightful custody of the
Failure to file return person is withheld from the person entitled
be punished by
constitutes contempt thereto.
contempt and will not
(indirect).
even be declared in
default. Note: Actual physical restraint is not required; any
Court and prevailing restraint which will prejudice freedom of action is
Respondent is the sufficient (Moncupa v. Enrile, G.R. No. 63345,
party are named as
detainer. January 30, 1986).
respondents.
Writ of Habeas Corpus

Kinds of Writ of Habeas Corpus
1. Preliminary citation – If the person is A writ directed to the person detaining another and
detained under governmental authority and the commanding him to produce the body of the
illegality of his detention is not patent from the prisoner at a certain time and place, with the day
petition for the writ, the court issues the citation and the cause of his caption and detention, to do,
to the government officer having custody to submit to, and receive whatsoever the court or
show cause why the writ of habeas corpus judge awarding the writ shall consider in that
should not issue. behalf (Ilusorio v. Bildner, G.R. No. 139789, May
2. Peremptory writ – If the cause of the 12, 2000).
detention appears to be patently illegal.
Noncompliance with this is punishable. The function of the special proceeding of habeas
Procedure for the Issuance of the Writ of corpus is to inquire into the legality of one’s
Habeas Corpus under Rule 102 detention. In all petitions for habeas corpus, the
court must inquire into every phase and aspect of
petitioner’s detention – from the moment petitioner
was taken into custody up to the moment the court

passes upon the merits of the petition and “only 1. It is not in the nature of a writ of error; nor
after such a scrutiny can the court satisfy itself that intended as substitute for the trial court’s
the due process clause of our Constitution has function. The writ cannot be used to investigate
been satisfied (Bernarte v. Court of Appeals, G.R. and consider questions of error that might be
No. 107741. October 18, 1996). raised relating to procedure or on the merits.
2. It cannot take the place of appeal, certiorari
When availed of (As a consequence of a judicial or writ of error.
proceeding): 3. The inquiry in a habeas corpus proceeding
is addressed to the question of whether the
1. There has been a deprivation of a constitutional proceedings and the assailed order are, for any
right resulting in the restraint of a person; reason, null and void.
2. The court had no jurisdiction to impose the 4. The writ is not ordinarily granted where the
sentence; law provides for other remedies in the regular
3. An excessive penalty has been imposed, as course, and in the absence of exceptional
such sentence is void as to such excess; circumstances.
4. Where the law is amended, as when the penalty 5. Habeas corpus should not be granted in
is lowered. Obtain freedom after serving advance of trial.
minimum sentence when the penalty under an 6. Habeas corpus is a summary remedy.
old law has been reduced by an amendatory law 7. The writ of habeas corpus does not act
(Cruz v. Director of Prisons, G.R. No. L-6497, upon the prisoner who seeks relief, but upon the
November 3, 1910); person who holds him in what is alleged to be
5. Denial of right to a speedy trial (since it is the unlawful authority. Hence, the only parties
jurisdictional); before the court are the petitioner (prisoner) and
6. Where the results of post-conviction DNA testing the person holding the petitioner in custody, and
are favorable to the convict. the only question to be resolved is whether the
7. Enable the parents to regain custody of a minor custodian has authority to deprive the petitioner
child, even if the latter be in the custody of a of his liberty. The writ may be denied if the
third person of her own free will (Salvaña v. petitioner fails to show facts that he is entitled
Gaela, G.R. No. L-341155, February 21, 1931); thereto ex merito justicias.
8. In determining the constitutionality of a statute 8. A writ of habeas corpus, which is regarded
(People of the Philippines v. Vera, G.R. No. L- as a “palladium of liberty” is a prerogative writ
45685, November 16,1937); which does not issue as a matter of right but in
9. When testing the legality of an alien‘s the sound discretion of the court. It is, however,
confinement and proposed expulsion from the a writ of right on proper formalities being made
Philippines (Lao Tang Bun v. Fabre, G.R. No. L- by proof. Resort to the writ is not to inquire into
1673, October 22, 1948); the criminal act of which a complaint is made but
10.In permitting an alien to land in the Philippines unto the right of liberty, notwithstanding the act,
(Lim Cheng v. Insular Collector of Customs, and the immediate purpose to be served is relief
G.R. No. 16406, September 13, 1920); from the illegal restraint.
11.In determining the legality of an extradition
(United States v. Rauscher, 7 S. Ct. 234, 30 L.
Ed. 425, December 6, 1886). Purpose: The essential object and purpose of the
writ of habeas corpus is to inquire into all manner
of involuntary restraint as distinguished from
Nature of the petition: Petition for habeas corpus,
voluntary, and to relieve a person therefrom if
which is an inquisition by the government, at the such restraint is illegal (Moncupa v. Enrile, G.R.
suggestion and instance of an individual, most No. 63345, January 30, 1986).
probably, but still in the name and capacity of the
sovereign is like a proceeding in rem. It is also The ultimate purpose of the writ of habeas corpus
instituted for the purpose of fixing the status of a is to relieve a person from unlawful restraint
person and that there can be no judgment entered (Castriciones v. Chief of Staff of Armed forces of
against anybody since there is no real plaintiff and the Philippines, G.R. No. 65731, September 28,
defendant (Alimpoos v. Court of Appeals, G.R. No. 1989).
L-27331, July 30, 1981).
The writ of habeas corpus was devised and exists
as a speedy and effectual remedy to relieve

persons from unlawful restraint, and as the best Whether the petition for the writ of habeas
and only sufficient defense of personal freedom. corpus may be properly filed together with the
And any further rights of the parties are left petition for certiorari and mandamus: The writs
untouched by decision on the writ, whose principal of habeas corpus and certiorari may be ancillary to
purpose is to set the individual at liberty each other where necessary to give effect to the
(Villavicencio v. Lukban, G.R. No. L-14639, March supervisory powers of the higher courts.
25, 1919).
Hence, a writ of habeas corpus may be used with
Grounds for suspension of the privilege of the the writ of certiorari for the purpose of review
writ of habeas corpus under the Constitution (Galvez v. Court of Appeals, G.R. No. 114046,
October 24, 1994).
1. Invasion, when public safety requires it;
2. Rebellion, when public safety requires it (Article SECTION 2. WHO MAY GRANT THE WRIT
VII, Section 18 of the 1987 Constitution)
The RTC, CA, and SC have concurrent jurisdiction
In cases of illegal confinement or detention to issue writs of habeas corpus. The MTC, by
virtue of special jurisdiction under B.P. Blg. 129,
General rule: The release, whether permanent or can issue the writ in case there is no available
temporary, of a detained person renders the RTC judge. Hierarchy of courts is not observed.
petition for habeas corpus moot and academic.
The writ issued by the RTC is enforceable within
Exception: When there are restraints attached to its territorial jurisdiction. While the writ issued by
his release which precludes freedom of action, in CA or Sc is enforceable anywhere in the
which case the court can still inquire into the Philippines.
nature of his involuntary restraint (Villavicencio v.
Lukban, G.R. No. L-14639, March 25, 1919). The Sandiganbayan may issue writs of habeas
corpus only if it is in aid of its appellate jurisdiction.
In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
166682, November 27, 2009), the Court held that This provision is another exception to the rule that
the mere production of child in the habeas corpus processes of the Regional Trial Court are
case does not warrant outright dismissal. A trial to enforceable throughout the Philippines (Regalado,
determine who had rightful custody over the child p. 176).
should be conducted by the court.
Family Courts have exclusive jurisdiction to
Voluntary Restraint issue writs of habeas corpus involving custody of
minors.
General Rule: Writ not available if restraint is
voluntary (Kelly v. Director of Prisons, G.R. No. L- The use of habeas corpus, not a petition for
20478, March 14, 1923). mandamus, to test the legality of an alien’s
detention and proposed deportation from the
Exception: Writ will lie to enable the parents (or Philippines is a settled practice because aside
person having substituted parental authority) to from being thorough and complete, it affords
recover custody of a minor child although she is in prompt relief from unlawful imprisonment
custody of a 3rd person on her own volition (Tijing (Bisschop v. Galang, G.R. No. L-18365, May 31,
v. Court of Appeals, G.R. No. 125901, March 8, 1963).
2001).
A petition for habeas corpus cannot be granted if
the accused has only served the minimum of his
Note: Voluntariness is viewed from the point of
sentence as he must serve his sentence up to its
view of the person entitled to custody.
maximum term (Office of the Court Administrator v.
Judge Perello, A.M. No. RTJ-05-1953, 24
When petition for habeas corpus not proper: December 2008).
1. For asserting or vindicating denial of right to bail; Scope of effectivity

2. For correcting errors in appreciation of
facts/appreciation of law. Collegiate Court RTC

Enforceable Enforceable only court to issue the writ if there is evidence that a
throughout the within their respective person is unjustly restrained of his liberty within
Philippines. judicial region. jurisdiction even if there is no application
(Villavicencio v. Lukban, supra).
Returnable to any Returnable only to
court. itself. It is necessary, however, that the person in whose
behalf the petition is filed is under actual and
effective restraint or deprivation of liberty
Jurisdiction in cases of habeas corpus with (Gonzales v. Viola, G.R. No. L-43195, August 23,
respect to custody of minors: Although the 1935).
Family Court where the petitioner resides or where SECTION 4. WHEN WRIT NOT ALLOWED OR
the minor may be found has exclusive and original DISCHARGED AUTHORIZED
jurisdiction to hear petitions for habeas corpus with
respect to custody of minors, the Supreme Court (JUCIT)
and the Court of Appeals can take cognizance of 1. If jurisdiction appears after the writ is
such petition in order that it can be enforceable allowed;
within the Philippines. 2. If the person is in the custody of an officer
under process issued by a court or by virtue of a
However, the return can be heard in the FC/RTC
judgment or order of a court of record which has
(if there is no FC in the judicial region) and there is
jurisdiction to issue the process, render the
no need to file a separate petition for custody judgment or make the order;
because the issue can be ventilated in the petition 3. If the person is charged with or convicted
for the writ. of an offense in the Philippines;
SECTION 3. REQUISITES FOR APPLICATION 4. If the person is suffering imprisonment
THEREFOR under lawful judgment.
5. Three (3)-day detention of a suspect for
Who may apply: three (3) days without charge (Sec. 18, Ra No.
9372 “Human Security Act of 2007” to take effect
1. Party for whose relief it is intended; or on July 14, 2007).
2. Some person on his behalf.
Supervening events may bar release: Even if

Verified petition must set forth: the arrest of a person is illegal, supervening
1. That the person in whose behalf the application events may bar release or discharge from custody.
is made is imprisoned or restrained of his liberty; What is to be inquired into is the legality of his
2. The name of the person detaining another; detention as of, at the earliest, the filing of the
3. The place where he is imprisoned or restrained application for the writ of habeas corpus, for even
of his liberty; if the detention is at its inception illegal, it may, by
4. The cause of his detention; reason of some supervening events such as the
5. The verified petition must be signed. instances mentioned in Sec. 4, be no longer illegal
at the time of the filing of the application (Velasco
v. Court of Appeals, G.R. No. 118644, July 7,
Note: The formalities required for petitions for
1995).
habeas corpus must be construed liberally. Strict
compliance with the technical requirements for a Note: Posting of bail is not a waiver. Under the
habeas corpus petition may be dispensed with Revised Rules on Criminal Procedure, as
where the allegations in the application are application for bail is not necessarily a bar to
sufficient to make out a case for habeas corpus challenge the validity of the arrest (Sec. 26, Rule
(Fletcher v. Director of Bureau of Corrections, 114).
UDK-14071, July 17, 2009).
SECTION 5. WHEN WRIT MUST BE GRANTED
The petition for the writ is required to be verified AND ISSUED
but the defect in form will not be fatal. In fact, the
Supreme Court has held that it is the duty of a

Procedure for grant of writ: (VACS RH) 2. By preserving a copy on which to make
return of service.
1. Verified petition signed by the party for The writ itself plays the role of summons in
whose relief it is intended; or by some other ordinary actions; court acquires jurisdiction over
person in his behalf;
2. Allowance of writ; the person of the respondent by mere service of
3. Command officer to produce; writ.
4. Service of writ by sheriff or other officer; SECTION 8. HOW WRIT EXECUTED AND
5. Return; and RETURNED
6. Hearing on return.
General rule: Officer to whom writ is directed shall
convey the detained person on the day specified
General Rule: If it appears that the writ should
in the writ:
issue, the clerk of court issues the writ under the
court’s seal (Sec. 5, Rule 102). 1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the
Exception: In emergency cases, the judge may same court.
issue the writ under his own hand and deputize
any person to serve it.
Exception: If the person to be produced has
The law even makes it the duty of the court to sickness or infirmity such that he cannot be
grant the writ of habeas corpus, if there is brought before the court without danger.
evidence that a person is unjustly restrained within
the court’s jurisdiction, though no application for Officer shall:
the writ was made (Villavicencio v. Lukban, G.R. 1. Convey the person so imprisoned before
No. L-14639, March 25,1919). the judge, unless from sickness or infirmity, such
SECTION 6. TO WHOM WRIT DIRECTED, AND person cannot, without danger be brought before
WHAT TO REQUIRE the court.
2. Make the return of the writ together with
A. In case of imprisonment or restraint by an the day and the cause of caption or restraint.
officer:
1. The writ shall be directed to him;
SECTION 9. DEFECT OF FORM
2. The officer shall produce the body of the
person before the court. No writ can be disobeyed for defect of form if it
3. State the cause of detention and prove his sufficiently states:
authority.
B. In case of imprisonment or restraint by a 1. The person in whose custody or under
person not an officer: whose restraint the party imprisoned or restraint
1. The writ shall be directed to an officer; is held; and
2. The officer shall take and produce the body 2. The court or judge before whom he is to be
of the person before the court; brought.
3. The officer shall summon the person
detaining another to appear before the court to
show the cause of the imprisonment or SECTION 10. CONTENTS OF RETURN
restraint. 1. Whether he has or has not the party in
his custody or power, or under restraint;
SECTION 7. HOW PRISONER DESIGNATED 2. If he has the party in his custody or
AND WRIT SERVED
power, or under restraint, the authority and the
How service is made: true and whole cause thereof, set forth at large,
with a copy of the writ, order, execution, or other
1. By leaving the original of the writ with the process, if any, upon which the party is held;
person to whom it is directed or to any person 3. If the party is in his custody or power or is
having custody if the former cannot be found or restrained by him, and is not produced,
has not the person in his custody; and 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 SECTION 14. WHEN PERSON LAWFULLY
court or judge; IMPRISONED RECOMMITTED, AND WHEN LET
4. If he has had the party in his custody or TO BAIL
power, or under restraint, and has transferred
such custody or restraint to another, particularly Habeas corpus would not lie after the Warrant of
to whom, at what time, for what cause, and by Commitment was issued by the court on the basis
what authority such transfer was made. of the Information filed against the accused (Ilagan
v. Enrile, G.R. No. 70748, October 21, 1985).
SECTION 11. RETURN TO BE SIGNED AND
SWORN TO
Once a person detained is duly charged in court,
SECTION 12. HEARING OF RETURN. he may no longer question his detention through a
ADJOURNMENTS petition for issuance of a writ of habeas corpus.
Would be to quash the information and/or the
1. His remedy, upon the return of the writ, the
court must immediately hear the case. warrant of arrest duly issued. The term “court”
2. The hearing MAY be adjourned by the includes quasi-judicial bodies of governmental
court for good causes, provided that conditions agencies authorized to order the person’s
upon the safekeeping of the detained person is confinement, like the Deportation Board of the
laid. Bureau of Immigration (Go v. Ramos, G.R. No.
3. If the detained person cannot be produced 167569, 4 September 2009).
before the court, the officer of person detaining
must satisfy the court of the gravity of the
alleged sickness or infirmity. If the offense is punishable by death, the person
4. During the hearing, the court shall
lawfully detained shall not be released, discharged
disregard matters of form and technicalities of
the authority or order of commitment. or bailed. If the offense is not punishable by death,
he MAY be recommitted to imprisonment of
admitted to bail in the discretion of the court or
The failure of petitioners to file a reply to the return judge (Sec. 14, Rule 102).
of the writ warrants the dismissal of the petition
SECTION 15. WHEN PRISONER DISCHARGED
because unless controverted, the allegations on
IF NO APPEAL
the return are deemed to be true or admitted
(Florendo v. Javier, G.R. No. L-36101, June 29, If one is unlawfully imprisoned, the court shall
1979). order his discharge but it shall not be effective until
a copy of the order has been served on the officer
SECTION 13. WHEN THE RETURN EVIDENCE,
or person detaining the prisoner. If the person
AND WHEN ONLY A PLEA
detaining him does not appeal, the prisoner shall
If detention is by public authority, the return is be released.
considered prima facie evidence of the validity of
Period of appeal: Within 48 hours from notice of
the restraint and the petitioner has the burden of
proof to show that the restraint is illegal. As per the judgment or final order appealed from (Sec. 3,
Rule 41). Form of appeal is by notice of appeal.
Rule 131 on legal presumption that the duty of a
public officer is regularly performed. The release contemplated under the writ of
If detention is by reason of private authority, the habeas corpus is one which is free from any
return is considered only a plea of the facts involuntary restraint. When the person so released
asserted therein and the person responsible for continues to be denied of one or more of his
the detention has the burden of proof to establish constitutional freedoms, where there is present
that the detention is legal and justified. denial of due process, or where the restraints are
not merely involuntary but appear to be
unnecessary, the person concerned or those
acting in his behalf may still avail themselves
again of the privilege of the writ. (Moncupa v.
Enrile, G.R. No. 63345, January 30, 1986).

SECTION 16. PENALTY FOR REFUSING TO 4. In case of fire, epidemic, insurrection or

ISSUE WRIT, OR FOR DISOBEYING THE SAME other necessity or public calamity.
A penalty of PhP1,000 and may be punished for

contempt. SECTION 19. RECORD OF WRIT, FEES AND
COSTS
Punishable acts or omissions
1. The Clerk of Court refuses to issue the writ RULE ON C UST ODY OF M INORS
after allowance by the court and demand;
2. The person directed in the writ: AND WRIT OF H ABEAS C ORPUS IN
a. Neglects or refuses to obey or make the RELAT ION T O T HE C UST ODY OF
return;
b. Makes a false return;
M INORS
c.Refuses to deliver a true copy of the
warrant/order of commitment, within 6 hours (A.M. No. 03-04-04-SC)
after demand (Sec. 16).
3. Imprisoning a person set at liberty by the Who may file the petition: A verified petition for
writ, for the same offense (Sec. 17). the rightful custody of a minor may be filed by any
4. Removing a prisoner from one custody to person claiming such right (Sec.2).
another (Sec. 18).
Where to file petition: Family Court of the
province or city where the petitioner resides or
SECTION 17. PERSON DISCHARGED NOT TO where the minor may be found (Sec.3).
BE AGAIN IMPRISONED
General Rule: A person who is set at liberty upon

The petition may however be filed with the regular
a writ of habeas corpus shall not be again
court in the absence of the presiding judge of the
imprisoned for the same offense.
Family Court, provided however that the regular
Exception: He is imprisoned by virtue of lawful court shall refer the case to the Family Court as
order or process of court having jurisdiction of the soon as its presiding judge returns to duty.
offense or cause.
The petition may also be filed with the SC, CA, or
Whether the State can reserve the power to re- with any of its members and, if so granted the writ
arrest a person for an offense after a court of shall be enforceable anywhere in the Philippines.
competent jurisdiction has absolved him of the The writ may be made returnable to a Family
offense: Court or to any regular court within the region
where the petitioner resides or where the minor
Ruling: Such a reservation is repugnant to the
may be found for hearing and decision on the
principle that the government is one of laws and merits.
not of men. Under this principle, the moment a
person is acquitted of a criminal charge he can no Contents of verified petition (P-NOS)
longer be detained or re-arrested for the same
1. The personal circumstances of the
offense (Toyoto v. Ramos, G.R. No. L-69270
petitioner and respondent;
October 15, 1985). 2. The name, age and present whereabouts
SECTION 18. WHEN PRISONER MAY BE of the minor and his or her relationship to the
REMOVED FROM ONE CUSTODY TO petitioner and respondent;
3. The material operative facts constituting
ANOTHER
deprivation of custody;
1. By legal process; 4. Such other matters which are relevant to
2. Prisoner is delivered to an inferior officer to the custody of minor (Sec.4).
carry to jail;
3. By order of proper court or judge directing
that he be removed from one place to another In Sombong v. Court of Appeals, et al. (G.R. No.
within the Philippines for trial; 111876, January 31, 1996), the Court laid down

the following requisites in petitions for habeas 4. The eldest brother or sister over twenty
corpus involving minors: one (21) years of age unless he or she is unfit or
disqualified;
1. That the petitioner has the right of custody over 5. The actual custodian of the minor over
the minor; twenty one (21) years of age, unless the former
2. That the rightful custody of the minor is being is unfit or disqualified; or
withheld from the petitioner by the respondent; 6. Any other person or institution the court
and may deem suitable to provide proper care and
3. That it is to the best interest of the minor guidance for the minor (Sec.13).
concerned to be in the custody of petitioner and
not that of the respondent.
Temporary visitation rights: The court shall
provide in its order awarding provisional custody
Motion to dismiss is not allowed except on the appropriate visitation rights to the non - custodial
ground of lack of jurisdiction over the subject parent or parents unless the court finds said
matter or the parties (Sec.6). parent or parents unfit or disqualified (Sec.15).
Respondent must file a verified answer within 5 Hold Departure Order: The minor child subject of
days from the service of summons and copy of the the petition shall not be brought out of the country
petition (Sec.7). without prior order from the court while the petition
Pre-trial is mandatory (Sec.9). is pending.
Effects of failure to appear at the pre-trial The Court, motu proprio or upon application under
oath, may issue an ex parte hold departure order
1. If the petitioner fails to appear personally at (Sec.16).
the pre-trial, the case shall be dismissed, unless
his counsel or a duly authorized representative Note: The court may also issue a Protection Order
appears in court and proves a valid excuse for (Sec.17).
the non-appearance of the petitioner;
2. If the respondent has filed his answer but Appeal : Notice of appeal within 15 days from
fails to appear at the pre-trial, the petitioner shall notice of denial of motion for reconsideration or
be allowed to present his evidence ex-parte. The new trial (Sec.19).
court shall then render judgment on the basis of
Note: No appeal shall be allowed unless a motion
the pleadings and the evidence thus presented
(Sec. 11). for reconsideration or new trial has been filed.
Petition for Writ of Habeas Corpus
Failure to file the pre-trial brief or to comply with its Shall be enforceable within its judicial region to
required content shall have the same effect as which the Family Court belongs (Sec. 20).
failure to appear at the pre-trial (Sec. 10).
Provisional order awarding custody: As far as RULE ON WRIT OF A M PARO
practicable, the following order of preference shall
be observed in the award of custody: (BEG BAO)
(A.M. No. 07-9-12-SC, September 25, 2007)
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the choice of Writ of Amparo
the minor over seven years of age and of
sufficient discernment unless the parent chosen A remedy available to any person whose right to
is unfit; life, liberty and security is violated or threatened
3. The grandparent or if there are several with violation by an unlawful act or omission of a
grandparents, the grandparent chosen by the public official or employee, or of a private
minor over seven years of age and of sufficient individual or entity.
discernment, unless the grandparent chosen is
unfit or disqualified;

It covers extralegal killings and enforced 3. Any concerned citizen, organization,

disappearances or threats thereof (applicable in association or institution, if there is no known
pending cases due to the remedial nature of the member of the immediate family or relative of the
writ). aggrieved party.
4.
Extralegal Killings Filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
Killings committed without due process of law (e.g.
file similar petitions.
salvage, summary and arbitrary executions).
Enforced Disappearances Likewise, the filing of the petition by an authorized
party on behalf of the aggrieved party suspends
Arrest, detention or abduction of a person by a the right of all others, observing the order
government officer or organized groups or private established herein (Sec. 2).
individuals acting with direct or indirect Ratio: To prevent the indiscriminate and
acquiescence of the government; refusal of the
groundless filing of petitions for amparo which may
state to disclose the fate or whereabouts of the
even prejudice the right to life, liberty or security of
person concerned or refusal to acknowledge the
the aggrieved party.
deprivation of liberty which places such persons
outside the protection of law. Where to file:
1. Writ of Amparo (“to protect”) – originated 1. Regional Trial Court where the threat, act
in Mexico; or omission was committed or any of its
2. Amparo Libertad – for the protection of elements occurred;
personal freedom equivalent to Habeas Corpus 2. With the Sandiganbayan, Court of Appeals,
writ; the Supreme Court or any justice of such courts.
3. Amparo Contra Leyes – for judicial review
of constitutionality of statutes;
4. Amparo Casacion – for judicial review of This writ shall be enforceable anywhere in the
constitutionality and legality of judicial decisions; Philippines.
5. Amparo Administrativo – for judicial
review of administrative actions; and Note: Basically similar to the Rule on petitions for
6. Amparo Agrario – protection of peasant’s the writ of habeas corpus. It is, however, different
rights derived from agrarian reform process because it includes the Sandiganbayan for the
(Secretary of National Defense v. Manalo, G.R. reason that public officials and employees will be
No. 180906, October 7, 2008). respondents in amparo petitions.
Contents of the verified petition
Limited to life, liberty and security because there
1. Personal circumstances of the petitioner
are other enforced remedies.
and of respondent responsible for the threat, act
Broad enough to encompass both actual and or omission;
threatened violation of human rights. 2. Violated or threatened right to life, liberty or
security of the party aggrieved. Stating in detail
Who may file (order of preference): By the the circumstances;
aggrieved party or by any qualified person or entity 3. Specify the names, personal
in the following order: circumstances of the investigating authority or
individuals, as well as the manner and conduct
1. Any member of the immediate family, of investigation;
namely: the spouse, children and parents of the 4. Actions and recourses taken by the
aggrieved party; petitioner to determine the whereabouts of
2. Any ascendant, descendant or collateral aggrieved party and identity of the person
relative of the aggrieved party within the fourth responsible for the threat, act or omission;
civil degree of consanguinity or affinity, in default 5. The relief prayed for;
of those mentioned in the preceding paragraph; 6. A general prayer for other just and
or equitable reliefs may be included (Sec. 5).

Where returnable; enforceable 1. The lawful defenses to show that the

respondent did not violate or threaten with
1. When issued by the RTC or an judge violation the right to life, liberty and security of
thereof, the writ is returnable before such court the aggrieved party, through any act or omission;
or judge; 2. The steps or actions taken by the
2. When issued by the Sandiganbayan, Court respondent to determine the fate or whereabouts
of Appeals or any of their justices, it may be of the aggrieved party and the person or persons
returnable to such court or any justice thereof, or responsible for the threat, act or omission;
to any RTC where the threat, act or omission 3. All relevant information in the possession
was committed or any of its elements occurred; of the respondent pertaining to the threat, act or
3. When issued by the Supreme Court or any omission against the aggrieved party; and
of its justices, it may be returnable to such Court 4. If the respondent is a public official or
or any justice thereof, or before the employee, the return shall further state the
Sandiganbayan or the Court of Appeals or any of actions that have been or will still be taken:
their justices, or to any RTC in the place where a. To verify the identity of the aggrieved party;
the threat, act or omission was committed or any b. To recover and preserve evidence related
of its elements took place (Sec.3). to the death or disappearance of the person
identified in the petition which may aid in the
Note: Due to the extraordinary nature of the writ, prosecution of the person or persons
which protects the mother of all rights –the right to responsible.
life – the petition may be filed on any day, c.To identify witnesses and obtain statements
including Saturdays, Sundays and holidays; and at from them concerning the death or
any time, from morning until evening. disappearance;
d. To determine the cause, manner, location
No docket fees and time of death or disappearance as well as
any pattern or practice that may have brought
Ratio: The enforcement of these sacrosanct rights
about the death or disappearance;
should not be frustrated by lack of finances. e. To identify and apprehend the person or
Issuance of the Writ: Upon the filing of the persons involved in the death or
disappearance; and
petition, the court, justice or judge shall
f. To bring the suspected offenders before a
immediately order the issuance of the writ if on its
competent court.
face it ought to issue. The writ shall be served
immediately.
The return shall also state other matters relevant
The writ should set the date and time for a
to the investigation, its resolution and the
summary hearing of the petition which shall not prosecution of the case.
be later than seven (7) days from the date of its
issuance (Sec. 13).
Punishment for refusal to issue writ: Contempt Respondent shall file a verified written return
without prejudice to other disciplinary actions (Sec. together with supporting affidavits within 72 hours
16). after service of the writ. The period to file a return
cannot be extended except on highly meritorious
Return
grounds (Sec. 9).
The Return serves as the responsive pleading to
the petition. Unlike an Answer, the Return has
other purposes aside from identifying the issues in No general denial – the policy is to require
the case. Respondents are also required to detail revelation of all evidence relevant to the petition.
the actions they had taken to determine the fate or
whereabouts of the aggrieved party (De Lima v.
Gatdula, G.R. No. 204528, February 19, 2013).
Avoids the ineffectiveness of the writ of habeas
corpus, where often the respondent makes a
Contents of return simple denial in the return that he or she has

custody over the missing person, and the petition Interim reliefs available to petitioner (TIP)
is dismissed.
1. Temporary protection order – The court,
justice or judge, upon motion or motu proprio,
Omnibus waiver rule may order that the petitioner or the aggrieved
The respondent must plead all his defenses in the party and any member of the immediate family
return. Failure to do so shall operate as a waiver be protected in a government agency or by an
of such defenses not therein pleaded (Sec. 10). accredited person or private institution capable
of keeping and securing their safety. If the
petitioner is an organization, association or
Prohibited pleadings and motions institution referred to in Section 3(c) of this Rule,
the protection may be extended to the officers
1. Motion to dismiss; involved.
2. Motion for extension of time to file return, 2. Inspection order - The court, justice or
opposition, affidavit, position paper and other judge, upon verified motion and after due
pleadings; hearing, may order any person in possession or
3. Dilatory motion for postponement; control of a designated land or other property, to
4. Motion for a bill of particulars; permit entry for the purpose of inspecting,
5. Counterclaim or cross-claim; measuring, surveying, or photographing the
6. Third-party complaint; property or any relevant object or operation
7. Reply; thereon.
8. Motion to declare respondent in default; 3. Production order - The court, justice or
9. Intervention; judge, upon verified motion and after due
10. Memorandum; hearing, may order any person in possession,
11. Motion for reconsideration of interlocutory custody or control of any designated documents,
orders or interim relief orders; and papers, books, accounts, letters, photographs,
12. Petition for certiorari, mandamus or objects or tangible things, or objects in digitized
prohibition against any interlocutory order (Sec. or electronic form, which constitute or contain
11). evidence relevant to the petition or the return, to
produce and permit their inspection, copying or
The filing of motion for new trial and petition for photographing by or on behalf of the movant.
relief from judgment are allowed because denial of
these remedies may jeopardize the rights of the Interim reliefs available to the respondent:
aggrieved party. (Annotation to the Writ of Upon verified motion of the respondent and after
Amparo). due hearing, the court, justice or judge may issue
an inspection order or production order. A
motion for inspection order shall be supported by
Effect of failure to file return: The court, justice affidavits or testimonies of witnesses having
or judge shall hear the petition ex parte. personal knowledge of the defenses of the
respondent.
Procedure for hearing: The hearing shall be Burden of proof and standard of diligence
summary, but the judge may call a preliminary required: Parties shall establish their claims by
conference to simplify the issues and determine substantial evidence.
the possibility of obtaining stipulations and
admissions from the parties.
If respondent is a private individual or entity, must
prove that ordinary diligence as required by
The hearing shall be held on a daily basis until applicable laws, rules and regulations was
completed and is given the same priority as that of observed in the performance of duty. If a public
petitions for writ of habeas corpus. official or employee, extraordinary diligence is
required.

Presumption of regularity in the performance of of two (2) years from notice to the petitioner of the
official duty cannot be invoked which is in accord order archiving the case (Sec. 20).
with current jurisprudence on custodial
Institution of separate actions: Filing of a
interrogation and search warrant cases.
petition for the writ of amparo shall not preclude
There is no need to show that petitioner has the filing of separate criminal, civil or
exhausted prior administrative remedies. administrative actions (Sec. 21).
Judgment: The court shall render judgment within Effect of filing of a criminal action: When a
ten (10) days from the time the petition is criminal action has been commenced, no separate
submitted for decision. petition for the writ shall be filed. The reliefs under
the writ shall be available by motion in the criminal
No enforcement of 5 days like in Habeas Data case. The procedure under the Rule on the Writ of
(Sec. 18).
Amparo shall govern the disposition of reliefs
Appeal: Within 5 days to appeal to the SC under available under the writ Sec. 22).
Rule 45 and may raise questions of fact or law or Consolidation: When a criminal action is filed
both (Sec. 19).
subsequent to the filing of a petition for the writ,
Ratio: Amparo proceedings involve determination the latter shall be consolidated with the criminal
of facts considering its subject–extralegal killings action.
and enforced disappearances.
When a criminal action and a separate civil action
Judgment subject to appeal via Rule 45 are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the
If the allegations are proven with substantial criminal action. After consolidation, the procedure
evidence, the court shall grant the privilege of the under this Rule shall continue to apply to the
writ and such reliefs as may be proper and disposition of the reliefs in the petition (Sec. 23).
appropriate. The judgment should contain
measures, which the judge views as essential for Doctrine of command responsibility in amparo
the continued protection of the petitioner in the proceedings: It would be inappropriate to apply to
Amparo case. These measures must be detailed these proceedings the doctrine of command
enough so that the judge may be able to verify and responsibility, as a form of criminal complicity
monitor the actions taken by the respondents. Is it through omission, for the criminal liability is
this judgment that could be subject to appeal to beyond the reach of amparo.
the Supreme Court via Rule 45 (De Lima v.
It does not determine guilt nor pinpoint criminal
Gatdula, G.R. No. 204528, February 19, 2013).
culpability for the disappearance, threats thereof
The privilege of the Writ of Amparo should be or extrajudicial killings; it determines responsibility,
distinguished from the actual order called the Writ or at least accountability, for the enforced
of Amparo. The prvilege includes availment of the disappearance, threats thereof or extrajudicial
entire procedure outlined in AM No. 07-9-12-SC killings for purposes of imposing the appropriate
(De Lima v. Gatdula, G.R. No. 204528, February remedies to address the disappearance or
19, 2013). extrajudicial killings.
If command responsibility were to be invoked and

Archiving and revival of cases: The court shall applied to these proceedings, it should, at most,
not dismiss the petition, but shall archive it, if upon be only to determine the author who, at the first
its determination it cannot proceed for a valid instance, is accountable for, and has the duty to
cause such as the failure of petitioner or witnesses address, the disappearance or harassments
to appear due to threats on their lives (Liberalized complained of, so as to enable the Court to devise
rule on dismissal). remedial measures that may be appropriate under
The petition shall be dismissed with prejudice the premises to protect rights covered by the writ
upon failure to prosecute the case after the lapse of amparo (Rubrico, et al. v. Macapagal-Arroyo, et
al., G.R. No. 183871, February 18, 2010).

Note: The writ of amparo, in its present form, is Habeas data vis-à-vis amparo: Habeas data
confined only to these two instances of “extralegal essentially allows families of victims of enforced
killings” and enforced disappearances” (Rev. Fr. disappearance to petition the courts to compel
Reyes v. Court of Appeals, et al., G.R. No. 182161, government and security officials to allow access
December 3, 2009). to documents about the missing person. While
amparo denies state officials the defense of denial
It is now clear that for the protective writ of amparo
with which they normally evade petitions for
to issue, allegation and proof that the persons
subject thereof are missing are not enough. It habeas corpus that families of missing persons file,
must also be shown and proved by substantial and compels them instead to exert efforts to find
evidence that the disappearance was carried out these missing persons or face sanctions (Festin,
by, or with the authorization, support or p.213).
acquiescence of, the State or a political
Note: The writ of habeas data cannot be invoked
organization, followed by a refusal to acknowledge
the same or give information on the fate or in labor disputes where there is no unlawful
whereabouts of said missing persons, with the violation of the right to life, liberty, or security
intention of removing them from the protection of (Meralco v. Lim, G.R. No. 184769, October 5,
the law for a prolonged period of time. Simply put, 2010).
the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable Habeas data cannot be invoked when
element of government participation (Navia v. respondents in the petition for issuance of the writ
Pardico, G.R. No. 184467, June 19, 2012). are not gathering, collecting, or storing data or
information (Castillo v. Cruz, G.R. No. 182165,
November 25, 2009).
It is not a writ to protect concerns that are purely
property or commercial (Tapuz, et al. v. Judge Del Who may file: Any aggrieved party may file a
Rosario, G.R. No. 182484, June 17, 2008). petition for the writ of habeas data. However, in
cases of extralegal killings and enforced
disappearances, the petition may be filed by:
RULE ON WRIT OF H ABEAS D ATA
1. Any member of the immediate family of the
aggrieved party, namely: the spouse, children
(A.M. No. 08-1-16-SC, January 22, 2008) and parents; or
2. Any ascendant, descendant or collateral
(Effectivity: February 2, 2008) relative of the aggrieved party within the fourth
civil degree of consanguinity or affinity, in default
Writ of Habeas Data of those mentioned in the preceding paragraph
A remedy available to any person whose right to (Sec. 2).
privacy in life, liberty or security is violated or Note: Unlike in amparo, human rights
threatened by an unlawful act or omission of a organizations or institutions are no longer allowed
to file the petition.
public official or employee, or of a private
individual or entity engaged in the gathering, Where to file:
collecting or storing of data or information
regarding the person, family, home and 1. Regional Trial Court where the petitioner or
correspondence of the aggrieved party (Sec. 1). respondent resides, or that which has jurisdiction
over the place where the data or information is
The writ in general is designed to safeguard gathered, collected or stored, at the option of the
individual freedom from abuse in the information petitioner.
age by means of an individual complaint 2. Supreme Court or the Court of Appeals or
presented in a constitutional court. Specifically, it the Sandiganbayan when the action concerns
protects the image, privacy, honor, information, public data files of government offices (Sec. 3).
self determination, and freedom of information of a
person (The Philippine Supreme Court’s Bulletin, Where returnable:
Benchmark Online November 2007).
When issued by:

1. The RTC or any judge thereof – returnable prejudice to other disciplinary actions) (Secs. 7 &
before such court or judge 11).
2. CA or the Sandiganbayan or any of its
justices – before such court or any justice The writ shall also set the date and time for
thereof, or to any Regional Trial Court of the summary hearing of the petition which shall not be
place where the petitioner or respondent resides, later than ten (10) working days from the date of
or that which has jurisdiction over the place its issuance (Sec. 16).
where the data or information is gathered,
collected or stored. Return: Respondent shall file a verified written
3. SC or any of its justices – before such return together with supporting affidavits within five
Court or any justice thereof, or before the Court (5) working days from service of the writ, which
of Appeals or the Sandiganbayan or any of its period may be reasonably extended by the Court
justices, or to any Regional Trial Court of the for justifiable reasons (General Denial of the
place where the petitioner or respondent resides, allegations in the petition is not allowed) (Sec. 17).
or that which has jurisdiction over the place
where the data or information is gathered, Contents of return:
collected or stored (Sec. 4). 1. The lawful defenses such as national security,
state secrets, privileged communication,
confidentiality of the source of information of
Note: The writ of habeas data shall be media and others,
enforceable anywhere in the Philippines. 2. In case of respondent in charge, possession or
control of the data or information subject of the
Docket Fees: No docket and other lawful fees petition:
shall be required from an indigent petitioner (Sec. a. A disclosure of the data or information
5). about the petitioner, the nature of such data or
information, and the purpose for its collection.
Note: A petition for a writ of habeas data must be
b. The steps of actions taken by the
verified.
respondent to ensure the security and
Contents of the petition (P-MALRO) confidentiality of the data or information,
c.The currency and accuracy of the data or
1. Personal circumstances of the petitioner information held.
and respondent; 3. Other allegations relevant to the resolution
2. The manner the right of privacy is violated of the proceeding (Sec. 10).
or threatened;
3. Actions and recourses taken by petitioner
to secure the date or information; Effect of failure to file a return: The court shall
4. Location of the files, registers or database, proceed to hear the petition ex parte, granting the
the government office, person in charge, in petitioner such relief as the petition may warrant
possession and control of the data, if known; unless the court in its discretion requires the
5. Reliefs prayed for; and petitioner to submit evidence (Sec. 14).
6. Other relevant reliefs as are just &
equitable (Sec. 6). Note: Making a false return, or refusing to make a
return; or any person who otherwise disobeys or
resists a lawful process or order of the court shall
Issuance of the writ: Upon the filing of the be punished by contempt (Sec. 11).
petition, the court, justice or judge shall
immediately order the issuance of the writ if on its Defenses available to respondent
face it ought to issue.
1. National security;
Clerk of court (COC) shall issue the writ under the 2. State secrets;
seal of the court and cause it to be served within 3. Privileged communications;
three (3) days from the issuance; or, in case of 4. Confidentiality of the source of information
of media and others (Sec. 12).
urgent necessity, the justice or judge may issue
Note: Hearing in chambers may be conducted
the writ under his or her own hand, and may
where the respondent invokes the
deputize any officer or person serve it (COC’s
abovementioned defenses (Sec. 12).
refusal to issue the writ: Contempt without

Prohibited pleadings and motions

Grant of the writ vs. Grant of the privilege of
1. Motion to dismiss; the writ: The grant of the writ refers to the
2. Motion for extension of time to file return, decision of the court to give due course to the
opposition, affidavit, position paper and other petition, require respondents to file their return and
pleadings; set the petition for hearing. The grant of the
3. Dilatory motion for postponement; privilege of the writ means that the petition is
4. Motion for a bill of particulars; found meritorious, the prayers therein are granted
5. Counterclaim or cross-claim; and the petitioner is granted the relief sought.
6. Third-party complaint;
7. Reply; Return of service: The officer who executed the
8. Motion to declare respondent in default; judgment shall, within 3 days from its enforcement,
9. Intervention; make a verified return to the court.
10. Memorandum;
11. Motion for reconsideration of interlocutory Contents of the return of service
orders or interim relief orders; and 1. Full statement of the proceedings under
12. Petition for certiorari, mandamus or the writ; and
prohibition against any interlocutory order. (Sec. 2. Complete inventory of the database or
13) information, or documents or articles inspected,
updated, rectified, or deleted, with copies served
Hearing on the petitioner and the respondent.
3. Statement by the officer how the judgment
Summary but the judge may call a preliminary was enforced and complied with by the
conference to simplify the issues and determine respondent; and
the possibility of obtaining stipulations and 4. All the objections of the parties regarding
admissions from the parties. the manner and regularity of the service of the
writ (Sec. 17).
When a court may hear the petition in
chambers Hearing on officer’s return: The court shall set
the date with due notice to the parties
Where the respondent invokes the defense that:
1. The release of the data or information in Appeal: Within five (5) days to appeal to the SC
question shall compromise national security or under Rule 45 and may raise questions of fact or
state secrets; or law or both.
2. The data or information cannot be divulged
to the public due to its nature or privileged Institution of separate actions: Filing of a
character. petition for the writ of habeas data shall not
3. preclude the filing of separate criminal, civil or
Judgment: Court to render judgment within ten administrative actions (Sec. 20).
(10) days from the time the petition is submitted
for decision. Consolidation:
1. When a criminal action is filed subsequent
to the filing of a petition for the writ, the latter
If the allegations in the petition are proven by shall be consolidated with the criminal action.
substantial evidence, the court shall enjoin the act 2. When a criminal action and a separate civil
complained of, or order the deletion, destruction, action are filed subsequent to a petition for a writ
or rectification of the erroneous data or information of habeas data, the petition shall be consolidated
and grant other relevant reliefs as may be just and with the criminal action.
equitable otherwise, the privilege of the writ shall
be denied. After consolidation, the procedure under this
Rule shall continue to govern the disposition of
the reliefs in the petition.
Upon its finality, judgment enforced within five (5)
working days.

When a criminal action has been commenced, Legal separation is not a ground for the female
no separate petition for the writ shall be filed. spouse for a change of name under Rule 103
The relief under the writ shall be available to an (Laperal v. Republic of the Philippines, G.R. No. L-
aggrieved party by motion in the criminal case. 18008, October 30, 1962).
The procedure under this Rule shall govern the A change of name granted by the court affects
disposition of the reliefs available under the writ of only a petitioner. A separate petition for change of
habeas data (Sec. 21). name must be filed for his/her spouse and children
(Secan Kok v. Republic of the Philippines, G.R. No.
See Comparative Chart of Habeas Corpus, Writ of L-27621, August 30, 1973).
Amparo and Habeas Data on Page 270
Sex reassignment is not a valid ground to change
one’s first name (applies to both Rule 103 and R.A.
No. 9048) (Silverio v. Republic of the Philippines,
RULE 103 G.R. No. 174689, October 22, 2007).
C HANGE OF NAM E SECTION 1. VENUE
The RTC of the province where the petitioner has

been residing for 3 years prior to the filing of the
petition.
Procedure for Change of Name under Rule 103
A change of name is a proceeding in rem.
Petition for Change of Name Jurisdiction to hear and determine the petition for
change of name is acquired after due publication
of the order containing certain data (Secan Kok v.
Court order fixing the date and place of hearing Republic of the Philippines, supra).
Publication of the court order fixing the date and place The State has an interest in the names borne by
of hearing, at least once a week for 3 successive weeks individuals and entries for purposes of
in a newspaper of general circulation identification, and that a change of name is a
privilege and not a right, so that before a person
can be authorized to change his name given him
Hearing on the Petition either in his certificate of birth or civil registry, he
must show proper or reasonable cause, or any
Judgment granting / denying the change of name. compelling reason which may justify such change
Copy of the judgment shall be served upon the civil (In Re: Julian Lin Carulasan Wang v. Cebu City
registrar, who shall annotate the same Civil Registrar, G.R. No. 159966, March 30, 2005).
Applicability of Rule 103 SECTION 2. CONTENTS OF PETITION

An alien can petition for a change of name but he 1. That petitioner is a bona fide resident of the
must be domiciled in the Philippines (Ong Huan province where petition is filed for at least three
Tin v. Republic of the Philippines, G.R. No. L- years prior to the date of filing;
20997, April 27, 1967). 2. Cause for change of name;
3. Name asked for;
4. All names by which petitioner is known (Secan
Kok v. Republic of the Philippines, supra).
The name that can be changed is the name that
appears in the civil register, and not in the
baptismal certificate or that by which the person is The petition shall be signed and verified by the
known in the community (Ng Yao Siong v. person desiring his name changed or some other
Republic of the Philippines, G.R. No. L-20306, person in his behalf.
March 31, 1966).

Requirement of verification is a formal, and not a Effect of discrepancy in the petition and
jurisdictional requisite. It is not a ground for published order: The defect in the petition and
dismissing petition. the order, as to the spelling of the name of the
petitioner, is substantial, because it did not
Under Rule 103, the word “person” is a generic correctly identify the party to said proceedings
term which is not limited to Filipino citizens, but
(Tan v. Republic of the Philippines, G.R. No. L-
embraces all natural persons. The rule does not
16384, April 26, 1962).
even require that the citizenship of the petitioner
be stated in the petition (Yu v. Republic of the
Philippines, G.R. No. L-20874, May 25, 1966).
Grounds for change of name (R-CHEN)
All of the applicant’s aliases must be stated in the
petition’s title. Otherwise, it would be a fatal defect 1. Name is ridiculous, tainted with dishonor or
(Go Chiu Beng v. Republic of the Philippines, G.R. extremely difficult to write or pronounce;
No. L-29574, August 18, 1972). 2. Consequence of a change of status; e.g.
legitimated child;
3. Habitual and continuous use and has been
Jurisdictional requirements known since childhood by a Filipino name,
unaware of her alien parentage;
1. The verified petition should be published for 4. A sincere desire to adopt a Filipino name to
three successive weeks in some newspaper of erase signs of former alienage, all in good faith
general circulation in the province; and without prejudicing anybody; or
2. Both the title or caption of the petition and its 5. Necessity to avoid confusion;
body shall recite:
a. Name/names or aliases of the applicant;
b. Cause for which the change of name is Title of petition must contain the following:
sought;
c.New name asked for (Secan Kok v. Republic 1. Official name (birth certificate) – be very
of the Philippines, supra.). particular with the spelling because it may avoid
or annul the proceedings; it is jurisdictional;
2. All aliases; and
Petition should be filed by applicant upon reaching 3. Name asked for.
the age of majority (Regalado, p. 191).
Note: All the names or aliases must appear in the
title or caption of the petition, because the reader
Ratio: A change of name is a matter of public usually merely glances at the title of the petition
interest (Secan Kok v. Republic of the Philippines, and may only proceed to read the entire petition if
supra). the title is of interest to him (Secan Kok v.
Republic of the Philippines, supra).
SECTION 3. ORDER FOR HEARING
Hearing shall not be within 30 days prior to an The non-inclusion of all the names or aliases of
the applicant in the caption of the order or in the
election nor within 4 months after the last
title of the petition defeats the very purpose of the
publication of notice of hearing.
required publication (Republic of the Philippines v.
Zosa, G.R. No. L-48762, September 12, 1988).
The court shall promulgate an order:

SECTION 4. HEARING
1. Recital of the purpose of the petition;
2. Fix the date and place of hearing; and Who may oppose the petition
3. Direct that a copy of the order be published
1. Any interested person;
before the hearing for once a week for three
2. The Republic of the Philippines through the
consecutive weeks in a newspaper of general
Solicitor General or the proper provincial or city
circulation.
prosecutor.

SECTION 5. JUDGMENT 117 to 122 of the Corporation Code of the

Philippines.
A change of name granted by the court affects
only the petitioner. A separate petition for change
of name must be filed for his wife or children
A.M. No. 00-11-03-SC, promulgated on November
(Secan Kok v. Republic of the Philippines, supra).
21, 2000, designated some RTC branches
nationwide (also known as Corporate courts) to try
and decide SEC cases enumerated under Sec. 5
A decree of adoption grants the adoptee the right of P.D. 902-A.
to use the adopter’s surname, if change of first
name is so desired, it must be prayed and alleged RULE 105
in the petition for adoption (Sec. 16, A.M. No. 02-
6-02-SC). J UDICIAL APPROVAL OF
SECTION 6. SERVICE OF JUDGMENT VOLUNT ARY RECOGNIT ION OF
Civil Registrar of the city or municipality where the

M INOR NAT URAL C HILDREN
court is situated shall be furnished with a copy of
the judgment. Note: The matter of the filiations of illegitimate
children and the proof thereof is governed by
Consequence of a grant to change name: A Articles 172 and 173, in relation to Article 175, of
mere change of name would not cause a change the Family Code.
in one’s existing family relations, nor create new
family rights and duties where none exists before.
Neither would it affect a person’s legal capacity, Voluntary recognition
civil status or citizenship. What would be altered is
the word or group of words by which he is An admission of the fact of paternity or maternity
by the presumed parent, expressed in the form
identified and distinguished from the rest of his
fellow men (Ang Chay v. Republic of the prescribed by the Civil Code. Its essence lies in
Philippines, G.R. No. L-28507, July 31, 1970). the avowal of the parent that the child is his; the
formality is added to make the admission
incontestable, in view of the consequences
(Gapusan Chua v. Court of Appeals, G.R. No. L-
Note: When the marriage ties or vinculum no
46746, March 15,1990).
longer exists as in the case of death of a husband
or divorce as authorized by the Muslim Code, the
widow or divorcee need not seek judicial
confirmation of the change in her civil status in Art. 172. The filiation of legitimate children is
order to revert to her maiden name as the use of established by any of the following:
her former husband’s name is optional and not
obligatory for her. Neither is she required to 1. The record of birth appearing in the civil register
secure judicial authority to use the surname of her or a final judgment; or
husband after the marriage as no law requires it 2. An admission of legitimate filiation in a public
(Yasin v. Shari’a District Court, G.R. No. 94986, 23 document or a private handwritten instrument
February 1995). and signed by the parent concerned.
RULE 104
In the absence of the foregoing evidence, the
V OLUNT ARY D ISSOLUT ION OF legitimate filiation shall be proved by:
C ORPORAT IONS 1. The open and continuous possession of the
status of a legitimate child; or
Note: Dissolution of corporations should now be 2. Any other means allowed by the Rules of Court
filed with the Securities and Exchange and special laws (265a, 266a, 267a).
Commission and is covered by Title XIV, Sections

In effect, judicial approval of voluntary

recognition is required only when filiation is
proved by: The family home, constituted jointly by the
husband and the wife or by an unmarried head of
1. Open and continuous possession of status a family, is the dwelling house where they and
of a legitimate child; or their family reside, and the land on which it is
2. Any other means allowed by the Rules of situated (Art. 152, NCC).
Court and other special laws (Gono-Javier v.
Court of Appeals, G.R. No. 111994, December
29, 1994).
The family home is deemed constituted on a
house and lot from the time it is occupied as a
Art. 173. The action to claim legitimacy may be family residence. From the time of its constitution
brought by the child during his or her lifetime and and so long as any of its beneficiaries actually
shall be transmitted to the heirs should the child resides therein, the family home continues to be
die during minority or in a state of insanity. In such and is exempt from execution, forced sale or
these cases, the heirs shall have a period of five attachment except as hereinafter provided and to
years within which to institute the action. the extent of the value allowed by law (Art. 153,
NCC).
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the
same evidence as legitimate children. The beneficiaries of a family home are:
1. The husband and wife, or an unmarried
person who is the head of a family; and
The action must be brought within the same period 2. Their parents, ascendants, descendants,
specified in Article 173, except when the action is brothers and sisters, whether the relationship be
based on the second paragraph of Article 172, in legitimate or illegitimate, who are living in the
which case the action may be brought during the family home and who depend upon the head of
lifetime of the alleged parent. the family for legal support (Art. 154, NCC).
The family home shall be exempt from execution,

RULE 106 forced sale or attachment except:
C ONST IT UT ION OF F AM ILY HOM E 1. For nonpayment of taxes;

2. For debts incurred prior to the constitution
of the family home;
3. For debts secured by mortgages on the
Note: The rule has already been repealed by the premises before or after such constitution; and
Family Code, which took effect on August 3, 1988. 4. For debts due to laborers, mechanics,
architects, builders, materialmen and others who
have rendered service or furnished material for
the construction of the building (Art. 155, NCC).
There is no need to constitute the family home
judicially or extrajudicially. If the family actually
resides in the premises, it is, automatically RULE 107
considered as a family home as contemplated by
law (Modequillo v. Breva, G.R. No. 86355 May 31, ABSENT EES
1990).
Absentee Incompetent
Family home
Constituted on a house and lot from the time it is

occupied as a family residence.

Includes persons Appointment of representative: When a person

suffering the penalty of disappears, whereabouts are unknown, leaves no
civil interdiction or who agent or upon expiration of power of agent, during
are hospitalized the first two (2) years.
lepers, prodigals, deaf
One who disappears
and dumb who are
from his domicile and
unable to read and Declaration of absence and appointment of
his whereabouts being
write, those who are of administrator: When a person disappears and
unknown and without
unsound mind, and still without any news since the receipt of the last
having left an agent to
persons who are news about him, after two (2) years if without
administer his property
unable to take care of administrator or after five (5) years if with
or the power of agent
themselves and administrator.
has expired.
manage their property
by reason of age,
disease, weak mind SECTION 1. APPOINTMENT OF
and other similar REPRESENTATIVE
causes.
This rule is based on Articles 381 and 382 of the
Order of hearing must Civil Code.
be published once a
week for 3
consecutive weeks in
When a person disappears from his domicile, his
a newspaper of whereabouts being unknown, and without leaving
general circulation in
an agent to administer his property, the judge, at
the province or city Notice of petition for
the instance of an interested party, a relative, or a
where absentee guardianship for non-
friend, may appoint a person to represent him in
resides and resident may be
all that may be necessary (Art. 381, NCC).
declaration of absence published when court
will only take effect 6 deems it proper.
months after its
publication in a This same rule shall be observed when under
newspaper of general similar circumstances the power conferred by the
absentee has expired. (Art. 381, NCC)
circulation designated
by court and in the
Official Gazette.
The appointment referred to in the preceding
article having been made, the judge shall take the
Procedures in the Rule on Absentees necessary measures to safeguard the rights and
interests of the absentee and shall specify the
powers, obligations and remuneration of his
Petition for Appointment of Representative
representative, regulating them, according to the
circumstances, by the rules concerning guardians
(Art. 322).
Application for Declaration of absence and
appointment of Trustee or Administrator
SECTION 2. DECLARATION OF ABSENCE;
WHO MAY PETITION
Termination of Administration/ Trusteeship
This rule is based on Articles 384 and 385 of the
Where to file: RTC where the absentee resided Civil Code.
before his disappearance

Art. 384. Two years having elapsed without any Period of

Consequence
news about the absentee or since the receipt of Absence
the last news, and five years in case the absentee
has left a person in charge of the administration of Petition for Appointment of
his property, his absence may be declared (Art. Representative (unless the
0-2 years
384, NCC). absentee left an agent to
administer his property)
2 years to 7
Who may file a petition for appointment of years Petition for declaration of
administrator or trustee:
(5 years to 7 absence and appointment of
1. The spouse present; years in case administrator or trustee may
2. The heirs instituted in a will, who may the absentee be filed.
present an authentic copy of the same; left an agent)
3. The relatives who would succeed by the
law of intestacy; Considered dead for all
4. Those who have over the property of the intents and purposes except
absentee some right subordinated to the for purposes of succession
condition of his death (Art. 385, NCC). (if disappeared under
Beyond 7 years extraordinary circumstances,
Purpose of petition: To appoint an administrator (absence of 4 considered dead for all
over the properties of the absentee. Hence, if the years under purposes, even succession);
absentee left no properties, such petition is extraordinary
unnecessary. For purposes of Marriage: 4
circumstance) years continuous absence
shall be sufficient for present
One’s disqualification as an heir of the absentee spouse to remarry, 2 years
does not inhibit him or her from petitioning for a only under extraordinary
declaration of absence or to be appointed as an circumstance
administrator of the absentee’s estate (Noquera v.
Villamor, G.R. No. 84250, July 20, 1992).
SECTION 4. TIME OF HEARING; NOTICE AND
PUBLICATION THEREOF
It is not necessary that a declaration of absence
be made in a proceeding separate from and prior Copies of the notice of the time and place fixed for
to a petition for administration (Reyes v. Alejandro, the hearing shall be served upon the known heirs,
G.R. No. L-32026, January 16, 1986). legatees, devisees, creditors and other interested
persons, at least ten (10) days before the day of
the hearing.
1. The jurisdictional facts; It shall be published once a week for three (3)
2. The names, ages, and residences of the consecutive weeks prior to the time designated for
heirs instituted in the will, copy of which shall be the hearing, in a newspaper of general circulation
presented, and of the relatives who would in the province or city where the absentee resides,
succeed by the law of intestacy;
as the court shall deem best.
3. The names and residences of creditors and
others who may have any adverse interest over
the property of the absentee;
4. The probable value, location and character SECTION 5. OPPOSITION
of the property belonging to the absentee.
Oppositor must:
1. State in writing his grounds therefor;

2. Serve a copy thereof to petitioner and other The absentee shall not be considered dead for the
interested parties on or before the hearing. purpose of opening his succession till after an
absence of ten years. If he disappeared after the
SECTION 6. PROOF AT HEARING; ORDER age of seventy-five years, an absence of five
years shall be sufficient in order that his
Art. 386. The judicial declaration of absence shall succession may be opened.
not take effect until six months after its publication
in a newspaper of general circulation.
The following shall be considered dead for all
purposes including the division of the estate
SECTION 7. WHO MAY BE APPOINTED among the heirs:
Appointment of representative/trustee: 1. A person on board a vessel lost during a
sea voyage, or an aircraft which is missing, who
1. Spouse present (preferred); or has not been heard of for four years since the
2. Any competent person. loss of the vessel or aircraft;
2. A member of the armed forces who has
taken part in armed hostilities, and has been
SECTION 8. TERMINATION OF
missing for four years;
ADMINISTRATION
3. A person who has been in danger of death
Grounds for termination of the administration under other circumstances and whose existence
1. Absentee appears personally or through an has not been known for four years;
agent; 4. If a married person has been absent for
2. Absentee’s death is proven and heirs four consecutive years, the spouse present may
appear; contract a subsequent marriage if he or she has
3. Third person appears showing that he a well-founded belief that the absent spouse is
acquired title over the property of the absentee already dead. In case of disappearance, where
(Art. 389, NCC). there is danger of death under the
circumstances hereinabove provided an
absence of only two years shall be sufficient for
General rule: No independent action for the purpose of contracting a subsequent
Declaration of Presumption of Death. marriage. However, in any case, before marrying
again, the spouse present must institute a
summary proceeding as provided in the Family
Code and in the rules for a declaration of
Exception: The need for declaration of
presumptive death of the absentee, without
presumptive death for purposes of remarriage (Art. prejudice to the effect of reappearance of the
41, Family Code). absent spouse (Sec. 3 [w], Rule 131)..
Note: The Family Code provides that for the
purpose of contracting a second marriage, the
present spouse must file a summary proceeding RULE 108
for the declaration of the presumptive death of the
absentee, without prejudice to the latter’s C ANCELAT ION OR C ORRECT ION
reappearance.
OF E NT RIES IN T HE C IVIL
REGIST RY
Provisions of the revised rules on evidence on
presumption of death: That after an absence of
Procedure for cancellation or correction of
seven years, it being unknown whether or not the
entries under Rule 108
absentee still lives, he is considered dead for all
purposes, except for those of succession.

4. The civil registrar and any person having or

claiming any interest under the entry whose
Petition for Cancellation or Correction of any cancellation or correction is sought may, within
entry relating to an act, event order or decree 15 days from notice of the petition or from the
concerning the civil status last date of publication of such notice, file his
opposition thereto;
Court order fixing the date and place for Hearing 5. Full blown trial.
Publication of the court order at least once a week for Proceedings for the correction of entries should
3 successive weeks in a newspaper of general not be considered as establishing one’s status in a
circulation, with reasonable notice given to persons manner conclusively beyond dispute. The status
named in the petition corrected would not have a superior quality for
evidentiary purposes. There is no increase or
Filing of opposition by the civil registrar and any person diminution of substantive right (Chiao Ben Lim v.
having/claiming interest under the entry whose Zosa, G.R. No. L- 40252, December 29, 1986).
cancellation/correction is sought, within 15 days from
notice of the petition or from the last date of publication
of the notice SECTION 2. ENTRIES SUBJECT TO
CANCELLATION OR CORRECTION
Hearing on the petition (BMD LAVLAA- NEC JVC)
1. Births;
Judgment granting/denying the petition. Copy of
2. Marriages;
the judgment shall be served upon the civil
3. Deaths;
registrar, who shall annotate the same
4. Legal separations;
5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from
SECTION 1. WHO MAY FILE PETITION
the beginning;
Any person interested in any act, event, order or 7. Legitimations;
decree concerning the civil status of persons 8. Adoptions;
recorded in the civil registry. 9. Acknowledgments of natural children;
10. Naturalization;
Where filed: RTC of the province where the 11. Election, loss or recovery of citizenship;
corresponding civil registrar is located. 12. Civil interdiction;
13. Judicial determination of filiation;
Proceedings under Rule 108 may be summary 14. Voluntary emancipation of a minor;
or adversarial: 15. Change of name.
1. Summary – when the correction sought to
be made is a mere clerical error (now governed Even substantial errors in a civil registry may be
by R.A. No. 9048). corrected and the true facts established provided
2. Adversarial - where the rectification the parties aggrieved by the error avail themselves
affects civil status, citizenship or nationality of a of the appropriate adversary proceedings
party or any other substantial change. (Republic of the Philippines v. Valencia, G.R. No.
L-32181, March 5, 1986).
Requisites of adversarial proceedings
Adversarial proceeding
1. Petition is filed before the court having
jurisdiction over the impleaded civil registrar and One that has opposing parties; contested as
all interested parties; (Sec.3) distinguished from an ex parte application, one of
2. The order of the hearing must be published which the party seeking relief has given legal
once a week for three consecutive weeks; warning to the other party, and afforded the latter
3. Notice thereof must be given to the Civil
an opportunity to contest it (Republic v. Valencia,
Registrar and all parties affected thereby;
supra).

the gender classification at birth inconclusive – it

is at maturity that the gender of such persons is
Rule 108, when all the procedural requirements fixed.
thereunder are followed, is the appropriate 2. To the person with CAH belongs the
adversary proceeding to effect substantial human right to the pursuit of happiness and of
correction and changes in entries of the civil health, and to him should belong the primordial
register (Lee v. Court of Appeals, G.R. No. L- choice of what courses of action to take along
118387, Oct. 11, 2001). the path of his sexual development and
maturation.
3. There is merit in the change of name of a
person with CAH where the same is the
Whether a petition under Rule 108 can be
consequence of the recognition of his preferred
granted by reason of “sex change” or “sec gender.
reassignment”: No. Since the statutory language
of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be SECTION 3. PARTIES
argued that the terms “sex” as used then is 1. Civil registrar;
something alterable through surgery or something 2. All persons who have or claim any interest
that allows a post-operative male-to-female which would be affected thereby.
transsexual to be included in the category of
“female” (Silverio v. Republic of the Philippines,
G.R. No. 174689, October 22, 2007). SECTION 4. NOTICE AND PUBLICATION
Order of hearing shall be published once a week

for 3 consecutive weeks in a newspaper of general
Congenital Adrenal Hyperplasia (CAH) circulation in the province and all persons named
in the petition shall be notified.
This condition causes the early or “inappropriate”
appearance of male characteristics. x x x. CAH is
one of many conditions that involves intersex SECTION 5. OPPOSITION
anatomy. During the twentieth century, medicine
The following are entitled to oppose the petition:
adopted the term “intersexuality” to apply to
human beings who cannot be classified as either 1. The Civil Registrar; and
male or female. The term is now of widespread 2. Any person having or claiming any interest
use. According to Wikipedia, intersexuality “is the under the entry whose cancellation or correction
state of a living thing of a gonochoristic species is sought.
whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to
Within 15 days from notice of the petition or from
be neither exclusively male nor female. An date of last publication.
organism with intersex may have biological
characteristics of both male and female sexes”
(Republic of the Philippines v. Jennifer
SECTION 6. EXPEDITING PROCEEDINGS
Cagandahan, G.R. No. 166676, September 12,
2008). The court may also grant preliminary injunction for
the preservation of the rights of the parties
pending such proceedings.
Principles laid down by the SC in Republic of
the Philippines v. Cagandahan:
SECTION 7. ORDER
1. Where the person is biologically or
naturally intersex, the determining factor in his The Civil Registrar shall be given a copy of the
gender classification would be what the judgment and annotate the same on his record.
individual, having reached the age of majority,
with good reason thinks of his/her sex; sexual
development in cases of intersex persons makes

wrought by the failure to delineate as to what

REPUBLIC ACT NO . 9048 exactly is that so-called summary procedure for
changes or corrections of a harmless or innocuous
nature as distinguished from that appropriate
Republic Act No. 9048 or the “Clerical Error Act” adversary proceeding for changes or corrections
which was passed by Congress on February 8,
of a substantial kind. The obvious effect is to
2001 amended Articles 376 and 412 of the New
remove from the ambit of Rule 108 the correction
Civil Code. Republic Act No. 10172 or “An Act
Further Authorizing the City or Municipal Civil or changing of clerical or typographical errors in
Registrar or the Consul General to Correct Clerical entries of the civil register. Hence, what are left for
or Typographical Errors in the Day and Month in the scope of operation of Rule 108 are substantial
the Date of Birth or Sex of a Person Appearing in changes and corrections in entries of the civil
the Civil Register Without Need of a Judicial Order register (Lee v. Court of Appeals, G.R. No. 118387,
amended Sections 1, 2, 5 and 8 of Republic Act October 11, 2001).
No. 9048.
Cases Covered: Petition for change of name (Rule 103) and
petition for cancellation or correction of entries
1. Clerical or typographical errors and change (Rule 108) are distinct proceedings. Hence, a
of first name or nickname party cannot change his name and correct an
2. Clerical or typographical errors and change entry in a single petition without satisfying the
of the day and month in the date of birth jurisdictional requirements (Herrera, p.564).
3. Clerical or typographical errors and change
of sex of a person where it is patently clear there The cancellation or correction of entries in the Civil
was clerical or typographical error or mistake in Registry is a proceeding in rem. Strict compliance
the entry (Sec. 1, R.A. No. 9048, as amended by with all jurisdictional requirements, particularly on
R.A. No. 10172). publication, is essential in order to vest the court
with jurisdiction (Regalado, p. 193).
General Rule: No entry in a civil register shall be Definition of terms:
changed or corrected without a judicial order.
1. First name – refers to a name or nickname
Exception: Clerical or typographical errors and given to a person which may consist of one or
change of first name or nickname which can be more names in addition to the middle and last
corrected or changed by the concerned city or names.
municipal civil registrar or consul general in 2. Migrant petitioner – refers to a petitioner
accordance with the provisions of this Act and its whose present residence or domicile is different
implementing rules and regulations. from the place where the civil registry record to
be corrected was registered.
Clerical or typographical error 3. Record-keeping civil registrar – refers to
the City/Municipal Civil Registrar in whose
A mistake committed in the performance of clerical archive is kept the record, which contains the
work in writing, copying, transcribing or typing an error to be corrected or the first name to be
entry in the civil register that is harmless and changed. This term shall be used only in cases
innocuous, such as a misspelled name or involving migrant petitioner.
misspelled place of birth or the like, which is 4. Petition-receiving civil registrar – refers
visible to the eyes or obvious to the understanding, to the City/Municipal Civil Registrar of the city or
and can be corrected or changed only by municipality where the petitioner resides or is
reference to other existing record or records: domiciled and who receives the petition on
Provided, however, That no correction must behalf of the Record-keeping Civil Registrar in
involve the change of nationality, age or status of the case of a migrant petitioner.
the petitioner (Sec. 2 [3] R.A. No. 9048, as Grounds:
amended by Sec. 2 R.A. No. 10172). 1. The petitioner finds the first name or
nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;
Note: It may be very well said that Republic Act 2. The new first name or nickname has been
No. 9048 is Congress' response to the confusion habitually and continuously used by the

petitioner and he has been publicly known by the Annexes to the petition
first name or nickname in the community; or
3. The change will avoid confusion (Sec. 4). 1. A certified true copy of the certificate or of
the page of the registry book containing the
entries sought to be corrected or changed;
Who may file: Any person of legal age, having 2. At least 2 public or private documents
direct and personal interest in the correction of a showing the correct entries upon which
clerical or typographical error in an entry and/or correction or change shall be based;
change of first name or nickname in the civil 3. Other documents which the petitioner or
register (Sec. 3). the city or municipal civil registrar or the consul
general may consider relevant and necessary for
Person with direct and personal interest: the approval of the petition;
4. For correction of erroneous entry of date of
1. He is the owner of the record; or birth or the sex of a person: earliest school
2. The owner’s spouse, children, parents, record or earliest school documents such as, but
brothers, sisters, grandparents, guardian; or not limited to, medical records, baptismal
3. Any other person duly authorized by law or certificate and other documents issued by
by the owner of the document sought to be religious authorities;
corrected. 5. For change of gender corrected:
certification issued by an accredited government
physician attesting to the fact that the petitioner
Provided, that when a person is a minor or
has not undergone sex change or sex transplant.
physically or mentally incapacitated: petition may 6. Certification from appropriate law
be filed on his behalf by his spouse, or any of his enforcement agencies that the petitioner has no
children, parents, brothers, sisters, grandparents, pending case or no criminal record (Sec. 5 as
guardians, or persons duly authorized by law (Sec. amended by Sec. 3, R.A. No. 10172).
3).
Where to file: Publication requirement: The petition must be
1. Local civil registry office or Clerk of the published at least once a week for 2 consecutive
Shari’a Court where the record being sought to weeks in a newspaper of general circulation.
be corrected or changed is kept; Copies of the petition shall be given to: the city or
2. If petitioner has already migrated to
municipal civil registrar, or the consul general; the
another place in the country: petition-receiving
Office of the Civil Registrar General; and the
civil registrar of the place where the interested
petitioner (Sec. 5).
party is presently residing or domiciled (Rule 4,
Implementing Rules & Regulations); Duties of the city/municipal civil registrar or
3. Citizens of the Philippines who are the Consul General:
presently residing or domiciled in foreign
countries: nearest Philippine Consulates (Sec. 3). 1. Examine the petition and its supporting
documents;
2. Post the petition in a conspicuous place
Contents of the petition: The petition shall be in provided for that purpose for 10 consecutive
the form of an affidavit, subscribed and sworn to days after he finds the petition and its supporting
before any person authorized by the law to documents sufficient in form and substance;
administer oaths and shall set forth: 3. Act on the petition and render a decision
not later than 5 working days after the
1. The facts necessary to establish the merits completion of the posting and/or publication
of the petition; requirement;
2. That the petitioner is competent to testify to 4. Transmit a copy of his decision together
the matters stated; with the records of the proceedings to the Office
3. The erroneous entry which are sought to of the Civil Registrar General within 5 working
be corrected; days from the date of the decision (Sec. 6).
4. All names by which petitioner is known
(Secan Kok v. Republic of the Philippines, supra).
Duties and powers of the civil registrar general

1. Within 10 working days from receipt of the to collect reasonable fees as a condition for
decision granting the petition, the Civil Registrar accepting the petition. An indigent petitioner shall
General shall exercise the power to impugn such be exempt from the payment of said fee. (Sec. 8
decision by way of an objection based on the as amended by Sec. 4, R.A. No. 10172)
following grounds:
a. The error is not clerical or typographical; Procedure: Republic Act No. 9048
b. The correction of entries is substantial or
controversial as it affects the civil status of a Affidavit with supporting documents (3 copies)
person; and
c. The basis used in changing the first or nick
name of a person does not fall under those If change of Filed with the City or M unicipal civil
provided by law. first name/ registrar (Local Civil Registrar
2. The Civil Registrar General shall nickname: [LCR]) or Consul General
immediately notify the city/municipal civil
1.Two weeks
registrar or the consul general of the action 10-day posting by the LCR or
publication
taken on the decision. Consul General
3. He has appellate powers over the decision 2.Certification
of the local civil registrars or consul general (Sec. that there is no
7). pending case LCR or Consul General: 5 days to
If the Civil Registrar General fails to exercise his or criminal ACT on the application
power to impugn within the prescribed period, the
decision of the city/municipal civil registrar or the Grants Denies
consul general shall become final and executor
(Sec. 7).
Effect of approving the petition for change of Transmit decision & records to Civil
Registrar General within 5 working days
name: The change shall be reflected in the birth
certificate by way of marginal annotation. In case
there are other civil registry records of the same Within 10 days, the If not impugned,
person which are affected by such change, the Civil Registrar the decision
decision of approving the change of first name in General may becomes final and
the birth certificate, upon becoming final and impugn the executory.
executory, shall be sufficient to be used as basis decision by way of
in changing the first name of the same person in objection
his other affected records without need for filing a
similar petition. In such a case, the successful Notify the LCR or Consul General
petitioner shall file a request in writing with the with the adverse decision Appeal to Civil
concerned LCR or Consul to make such marginal Registrar
annotation (Rule 12, Implementing Rules & General
LCR or Consul General shall notify
Regulations 9048, July 24, 2001). petitioner
File appropriate
M otion for Reconsideration with petition with the
Availment of the privilege: The correction of proper court
Civil Registrar General
clerical or typographical error shall be availed of
only once with respect to a particular entry or
entries in the same civil registry record. In case of
change of first name or nickname in the birth Note: In case of a migrant petitioner, the petition
certificate, the privilege shall be availed of only shall be posted first at the office of the petition-
once, subject to the provisions of Rule 12 of the receiving civil registrar for 10 consecutive days
Implementing Rules & Regulations (Rule 7, IRR before sending it to the record-keeping civil
9048). registrar. Upon receipt, the RKCR shall post again
the petition in his office for another 10 consecutive
Payment of Fees: The city or municipal civil days (Rule 9, IRR 9048).
registrar or the consul general shall be authorized

In the case where a person’s civil registry record no appeal shall be allowed from the appointment
or records were registered in the Philippines or in of a special administrator; and
any of the Philippine Consulates, but the persons 6. Is the final order or judgment rendered in
presently resides or is domiciled in a foreign the case, and affects the substantial rights of the
country, posting and/or publication, as the case person appealing, unless it be an order granting
or denying a motion for a new trial or for
may be, shall be done in the place where the
reconsideration.
petition is filed and in the place where the record
sought to be corrected is kept (Rule 9, IRR 9048).
Note: Rule 109 enumerates the cases wherein
Grounds for impugning the decision granting
multiple appeals are allowed and a record on
the petition
appeal is required for an appeal to be perfected.
1. Error is not clerical or typographical; The petition for the declaration of presumptive
2. Correction of an entry or entries in the civil death of an absent spouse not being included in
register is substantial or controversial as it the enumeration, petitioner’s mere notice of
affects the civil status of a person; or appeal suffices. The reason is that said petition is
3. The basis used in changing the first name a summary proceeding under the Family Code,
or nickname does not fall under any of the and not a special proceeding under the Rules of
grounds. Court (Republic of the Philippines v. Court of
Appeals, G.R. No. 163604, May 6, 2005).
See Comparative Chart: Rule 103, Rule 108, R.A. Who may appeal? An interested person whose
No. 9048 on Page 252.
interest must be material and direct, not merely
indirect or contingent (Teotico v. De Vat, G.R. No.
L-18753, March 26, 1965).
RULE 109
Orders that are not appealable
APPEALS IN S PECIAL
P ROCEEDINGS 1. Order directing administrator to take action
to recover amount due to the estate;
2. Order made in administration proceedings
relating to inclusion or exclusion of items of
The period of appeals in Special Proceedings shall property in the inventory of executor or
be 30 days and a record on appeal is required. administrator;
(Herrera, p. 578) 3. Order appointing special administrator.
SECTION 1. ORDERS OR JUDGMENTS FROM
WHICH APPEALS MAY BE TAKEN SECTION 2. ADVANCE DISTRIBUTION IN
SPECIAL PROCEEDINGS
An interested person may appeal in special
proceedings from such order or judgment Rule on advance distribution: Notwithstanding a
rendered which: (ADASCO) pending controversy or appeal in proceedings to
1. Allows or disallows a will; settle the estate of a decedent, the court:
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of the 1. In its discretion; and
estate to which such person is entitled; 2. Upon such terms as it may deem just and
3. Allows or disallows, in whole or in part, any proper;
claim against the estate of a deceased person, 3. Permit that such part of the estate as may
or any claim presented on behalf of the estate in not be affected by the controversy or appeal be
offset to a claim against it; distributed among the heirs or legatees, upon
4. Settles the account of an executor, compliance with the condition in Rule 90.
administrator, trustee or guardian; 4. The distributees must post a bond as
5. Constitutes, in the proceedings relating to provided under Section 1, Rule 90 (Peña and
the settlement of the estate of a deceased Nolasco Law Office v. LCN Construction Corp.,
person, or the administration of a trustee or G.R. No. 174873, August 26, 2008).
guardian, a final determination in the lower court
of the rights of the party appealing, except that

Appeal In Ordinary Appeal In Special certiorari and mandamus, it not appearing that the
Civil Action Proceedings lower court acted without jurisdiction (Profeta v.
Guitierrez David, G.R. No. L-47736, April 18,
15 days. 30 days. 1941).
Notice of Appeal and Record on Appeal and
docket fees. docket fees.
No extension. Maybe extended on

meritorious grounds.
Note: The appeal shall affect every order, decree,

or judgment appealed from, and not merely the
interest which the appellants may have therein
(Panis v. Yangco, G.R. No. L-29460, December
22, 1928).
Multiple appeals
A. Settlement of the Estate
1. Order admitting the will to probate;
2. Appointment of executor or administrator;
3. Appeal from the order concerning a
contested claim;
4. Order determining the heirs.
5. Appeal by surety of an executor or
administrator, admitted as party to an
accounting made by such executor or
administrator, in an order of the court
approving or disapproving such accounting
(Saguinsin v. Lindayag, G.R. No. L-17759,
December 17, 1962 );
6. Appeal by heir from money claim (Fluemer
v. Hix, G.R. No. L-32636, March 17, 1930);
7. Order for license to sell (Santos v. Roman
Catholic Bishop of Nueva Caceres, G.R. No. L-
21289, April 5,1924);
8. Order against bond (Moran); and
9. Order to contract obligation (De Borja v.
Encarnacion, G.R. No. L-4179, May 30, 1951).
B. Guardianship
1. Order annulling appointment of guardian
(Alemany v. Sweeney, G.R. No. 1403, March
19, 1904); and
2. Order removing a guardian (Olarte v.
Enriquez, G.R. No. L-16098, October 31,
1960).
Certiorari and mandamus are not substitutes

for appeal
Having lost the remedy to appeal due to the

parties’ own neglect, they cannot seek redress by

V ENUE AND J URISDICT ION IN S PECIAL P ROCEEDINGS
Special Proceeding Venue Jurisdiction
MTC if the gross value of the

estate does not exceed
Settlement of the Estate Residence of the decedent PhP300,000, or does not
or if the decedent is a non- exceed PhP400,000 in
resident, place where he Metro Manila
had an estate
RTC if the gross value of the

estate exceeds the above
amounts
a. Person dies intestate

leaving no heir – Residence
of the decedent or if non- RTC
resident, in the place where
Escheat he had an estate.
b. Reversion – Where the

RTC
land lies in whole or in part
c. Unclaimed Balances Act –

Where the dormant deposits RTC
are located
Family Court (in case of

Appointment of Guardians Where the minor or
Minors)
incompetent resides
RTC (Regular courts—in
case of Incompetents)
Where the will was allowed

Appointment of Trustees or where the property or
RTC/MTC
portion thereof affected by
the trust is situated
Domestic Adoption Where the adopter resides Family Court
Inter-Country Adoption Where the adoptee resides if Family Court or the Inter-
filed with the Family Court Country Adoption Board
Rescission of Adoption Where the adoptee resides Family Court
Habeas Corpus SC, CA, RTC, MTC in the
province or city in case there
Where the detainee is is no RTC judge;
detained (if the petition is
filed with the RTC)
Sandiganbayan only in aid
of its appellate jurisdiction.

Special Proceeding Venue Jurisdiction
Province or city where

Custody of Minors petitioner resides or minor Family Court
may be found.
Where the petitioner or

respondent resides, or that RTC;
which has jurisdiction over Sandiganbayan, CA or SC
Habeas Data the place where the data or when the action concerns
information is gathered public data files or
collected or stored, at the government offices
option of petitioner
Where the threat act or RTC;

Amparo Proceedings omission was committed or Sandiganbayan, CA, or SC
any of its elements occurred or any justice thereof
Where the petitioner resides

Habeas Corpus in relation
to minor or where the minor may be Family Court, CA and SC.
found.
Change of Name Where petitioner resides RTC
Appointment of
Representative of Where the absentee resided
RTC
Absentee/Declaration of before his disappearance
Absence
Cancellation/Correction of
Entries in the Civil
Registries Where the corresponding
RTC
Civil Registry is located
Where petitioner or
respondent has been
residing for at least 6
Petition for Declaration of
months prior to the date of
Nullity, Annulment, Legal Family Court
Separation filing, in case of non resident
respondent, where he may
be found at the election of
the petitioner.

C OM PARAT IVE C HART : H ABEAS C ORPUS , WRIT OF A M PARO AND H ABEAS

D ATA
Writ of Habeas
Writ of Amparo Writ of Habeas Data
Corpus
Involves the right to life, liberty Involves the right to privacy in

Involves the right to liberty of and security of the aggrieved life, liberty or security of the
and rightful custody by the party and covers extralegal aggrieved party and covers
aggrieved party killings and enforced extralegal killings and enforced
disappearances disappearances
There is an actual or There is an actual or

There is an actual violation of
threatened violation of threatened violation of
aggrieved party’s right.
aggrieved party’s right. aggrieved party’s right.
Respondent is a public official

or employee or a private
individual or entity engaged in
the gathering, collecting or
Respondent is a public official storing of data or information
Respondent: may or may not
or employee or a private regarding the person, family
be an officer.
individual or entity. name and correspondence of
the aggrieved party.
Who may file the petition: Who may file the petition: Who may file the petition:
Filed by the party for whose Filed by the aggrieved party or Filed by the aggrieved party;
relief it is intended or by some by any qualified person or but in cases of extralegal
person on his behalf. entity in the following order: killings and enforced
disappearances, may be filed
a) any member of the by:
immediate family of the
aggrieved party, i.e. spouse, a) any member of the
children and parents; immediate family of the
aggrieved party, i.e. spouse,
b) any ascendant, descendant children and parents;
or collateral relative of the
aggrieved party within the b) any ascendant, descendant
fourth civil degree of or collateral relative of the
consanguinity or affinity; aggrieved party within the
fourth civil degree of
c) any concerned citizen, consanguinity or affinity.
organization, association or
institution (right to file is
successive).
The filing of the aggrieved party

himself suspends the right to
file petition by other persons.

Writ of Habeas
Corpus
Upon filing of the petition by an

authorized person suspends
the right to file by others down
the order.
Filed before: Filed before: Filed before:

1. RTC or any judge 1. RTC of the place where 1. RTC where the
thereof, enforceable within its the threat act or omission petitioner or respondent
territorial jurisdiction; was committed or any of its resides, or that which has
2. CA or any me mber elements occurred; jurisdiction over the place
thereof in instances 2. Sandiganbayan or any where the data or
authorized by law; and justice thereof; information is gathered
3. SC or any member 3. CA or any justice collected or stored, at the
thereof. thereof; and option of petitioner
4. SC or any justice 2. SC, CA or
thereof. Sandiganbayan when the
Contents of the signed action concerns public
verified petitions: data files or government
Contents of the signed and offices.
verified petition:
1. The fact that the person in 1. Petitioner’s Contents of the signed and
whose behalf the petition is circumstances. verified petition:
filed is imprisoned or restrained 2. Respondent’s
of his liberty; circumstances 1. Petitioner’s
3. The right violated or circumstances.
threatened to be violated 2. Respondent’s
2.The detaining officer or details of the violation or circumstances.
threat. 3. Location of the file or
private individual, if unknown
4. Investigations database and the person or
or uncertain, such officer or conducted entity having custody,
person maybe described by 5. Actions and recourses possession or control.
an assumed appellation; taken by the petitioner in 4. Actions and recourses
ascertaining the whereabouts taken by the petitioner to
of the aggrieved party. secure the data or
3.The place where the person 6. Relief prayed for which information.
deprived of his liberty is may include a general prayer 5. Update, rectification,
imprisoned or detained; and for other just and equitable suppression or destruction of
reliefs. the file or database or the
enjoinment of the threat.
6. General prayer to other
4.A copy of the commitment or just and equitable reliefs.
cause of detention of such
person, if it can be procured
without impairing the
efficiency of the remedy, or
the fact that the imprisonment

Writ of Habeas
Corpus
or detention is without any

legal authority.
If granted by SC or CA or any
member of such courts, it is
The writ shall be enforceable The writ shall be enforceable
enforceable anywhere in the
anywhere in the Philippines anywhere in the Philippines
Philippines; if granted by the
regardless of who issued the regardless of who issued the
RTC or a judge thereof, it is
same. same.
enforceable only within his
judicial district.
If issued by the RTC or any If issued by the RTC or any

judge thereof, it is returnable judge thereof, it shall be
before such court or judge. returnable before such court or
judge.
If issued by the CA or the
If issued by the Sandiganbayan or any of its
Sandiganbayan or the CA or justices, it may be returnable
any of their justices, it may be before such court or any justice
returnable before such court or thereof, or to any RTC of the
any justice thereof, or to any place where the petitioner or
RTC of the place where the respondent resides or that
If granted by the SC or CA or threat, act or omission was
which has jurisdiction over the
any me mber of such courts, it committed or any of its
place where the data or
may be made returnable before elements occurred.
information is gathered,
the court or any member
collected or stored.
thereof or before an RTC or
any judge thereof. If issued by the SC or any of If issued by the SC or any of
its justices, it may be
If granted by the RTC or a its justices, it may be
returnable before such Court or
judge thereof, it is returnable returnable before such Court or
any justice thereof, or the any justice thereof, or before
before himself.
Sandiganbayan or CA or any of the CA or the Sandiganbayan
their justices, or to any RTC of or any of its justices, or to any
the place where the threat, act RTC of the place where the
or omission was committed or petitioner or respondent resides
any of its elements occurred. or that which has jurisdiction
over the place where the data
or information is gathered,
collected or stored.
The writ shall be immediately
issued upon filing of a valid
petition substantial in form and
content. The writ shall be immediately
issued upon filing of a valid

Writ of Habeas
Corpus
petition substantial in form and

content.
The clerk of court shall issue
the writ under the seal of the
court. Except in emergency
The clerk of court shall issue
cases which may be issued by
the judge or justice. the writ under the seal of the
court; shall be served by the
clerk within 3 days from
issuance. In case of
The writ shall set the date and emergency, the writ maybe
time for summary hearing issued by a justice or judge.
within 7 days from the
issuance of the writ.
The writ shall set the date and

time for summary hearing
within 10 days from issuance.
Petitioner is exempted from Only an indigent petitioner is

payment of docket and other not required to pay docket and
lawful fees. other lawful fees.
Summary hearing shall be Summary hearing shall be

conducted not later than 7 conducted not later than 10
Date and time of hearing is days from the date of the work days from the date of the
specified in the writ. issuance of the writ. issuance of the writ.
Served upon the respondent Served upon the respondent

personally, but if it cannot be personally, but if it cannot be
Served to the person to whom served personally, the rules on served personally, the rules on
it is directed; and if not found or substituted service shall apply. substituted service shall apply.
has not the prisoner in his
custody, to the other person
having or exercising such A copy is served on the A copy is served on the
custody. respondent and the sheriff respondent and the sheriff
retains a copy on which to retains a copy on which to
make a return of service. make a return of service.
If the person to whom the writ

is directed neglects or refuses
to obey or make return of the
same, or makes a false return
thereof, or who, upon demand
made by or on behalf of the
prisoner, refuses to deliver to
the person demanding, within 6 If the respondent refuses to If the respondent makes a false
hours after the demand make a return or makes a false return or refuses to make a
therefore, a true copy of the return, he may be punished return, he may be punished
warrant or order of with imprisonment or fine for with imprisonment or fine for
commitment, he shall forfeit to committing contempt without committing contempt without

Writ of Habeas
Corpus
the party aggrieved the sum of prejudice to other disciplinary prejudice to other disciplinary
Php 1,000 and may be actions. actions..
punished for contempt.
The person who makes the

return is the officer by whom The person who files the return The person who files the return
the prisoner is imprisoned or is the respondent. The return is the respondent. The return
the person in whose custody must be filed within 5 days must be filed within 5 days
the prisoner is found. from the service of the writ. from the service of the writ.
Contents of the Return: Contents of the Return:
1. Whether or not he has 4. Lawful defenses available

custody over the aggrieved to the respondent.
party; 5. The actions and steps Contents of the Return:
taken by the petitioner in
2. The authority and the true determining the 1. Lawful defenses available.
and whole cause of detention; whereabouts of the
2. If the respondent has
aggrieved party and the
3. if the party detained cannot possession or control of the
identity of the violator.
be produced, he must state the data or information:
6. All information relevant to
sickness or infirmity; the case. a. He must disclose the data
7. Actions taken by the or information, its nature, and
4. if he has transferred the public official:
custody, he shall state whom the purpose of his collection.
a. In verifying the
the person was transferred, identity of the b. The actions and steps
time, cause and authority of aggrieved party. taken in order to secure the
such transfer. b. Recovery and confidentiality of the data or
preservation of the information.
evidence for the
prosecution. c. The accuracy of the data
c.Determine the or information in his possession
circumstances or control.
surrounding the death
of disappearance. 3. All relevant allegations.
d. Identify and
apprehend the
persons involved. A general denial of the
e. Bring the
allegations in the petition shall
suspected offender to
not be allowed.
the court.
A general denial of the

allegations in the petition shall

Writ of Habeas
Corpus
not be allowed.
Effects of failure to file a

return:
Effects of failure to file a
return:
The Court, justice or judge shall

proceed to hear the petition ex
If the respondent fails to file a
parte, granting the petitioner
return, the court, justice or
such relief as the petition may
judge shall proceed to hear the
warrant unless the court in its
petition ex parte.
discretion requires petitioner to
submit evidence.
There are prohibited There are prohibited

pleadings and motions. pleadings and motions.
Sec. 12
1. Unless for good cause
shown, the hearing is
adjourned, in which event Sec. 14. The court, justice or
the court shall make an judge may grant interim
order for the safe keeping reliefs, to wit: temporary
of the person imprisoned or NOT applicable.
protection order, inspection
restrained as the nature of
order, production order and
the case requires;
witness protection order.
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.
Judgment shall be rendered Judgment shall be rendered

within 10 days from the time within 10 days from the time the
the petition is submitted for petition is submitted for
decision. decision.
The writ and reliefs prayed for The writ and reliefs prayed for
must be granted if the must be granted if the
allegations are proven by allegations are proven by
substantial evidence. substantial evidence.
Otherwise, it must be denied. Otherwise, it must be denied.
Judgment shall be enforced

within 5 working days.

Writ of Habeas
Corpus
Period of appeal is within 48

hours from notice of the Period of appeal shall be 5 Period of appeal shall be 5
judgment or final order working days from the date of working days from the date of
appealed from. The appeal notice of the adverse judgment. notice of the judgment or final
shall be filed to the Supreme Filed with SC thru RULE 45. order. Filed with SC thru RULE
Court under Rule 45. (Tan Chin Given the same priority as that 45. Given the same priority as
Hui v. Rodriguez, G.R. No. of Habeas Corpus. that of Habeas Corpus.
137571, September 21, 2000).
May be consolidated with a May be consolidated with a

criminal action filed subsequent criminal action filed subsequent
to the petition. to the petition.
Quantum of proof is clear and Quantum of proof is substantial

convincing evidence. evidence.
If the petition cannot proceed

for a valid cause, it shall not be
dismissed by the court, but it
must be archived.
After 2 years from notice of the

archiving of the petition, it shall
be dismissed with prejudice
upon failure to prosecute.
Substantive rights cannot be Substantive rights cannot be
increased, diminished or increased, diminished or
modified. modified.
The Rules of Court applies The Rules of Court applies
suppletorily. suppletorily.
C OM PARAT IVE C HART : RULE 103, RULE 108 AND R.A. NO . 9048
Rule 103 Rule 108 R.A. No. 9048
Cancellation or Correction of
Entries in the Civil Registry
(Substantial and adversary, if
change affects the civil
Substantial change of name Clerical Error Act
status, citizenship or
nationality; Summary, if it
involves mere clerical
errors.)
Change or corrections in the Change of first name and

Change of full name civil registry entries nickname and civil registry
(substantial corrections): entries (only typographical or

Births, marriages, deaths, clerical errors)

legal separation, judgments
of annulments of marriage,
judgments declaring void a
marriage, legitimations,
adoptions, acknowledgment
of natural children,
naturalizations, election, loss
or recovery of citizenship,
civil interdiction, judicial
determination of filiation.
Who may file
Any person interested in Any person having direct and

any act, event, order or personal interest in the correction
A person desiring to change decree concerning the civil of a clerical or typographical error
his name files a petition. status of persons which has in an entry and/or change of first
been recorded in the civil name or nick name files a verified
register. petition in a form of an affidavit.
Venue
1. Local civil registry office of the

RTC of the province in which city or municipality where the
the petitioner resides for 3 record being sought to be
RTC of the city or province corrected or changed is kept;
years prior to the filing, or, in
where the corresponding 2. Local civil registrar of the place
the City of Manila, to the
civil registry is located where the interested party is
Juvenile and Domestic
Relations Court presently residing or domiciled
(transient petitioner);
3. Philippine consulates
Contents of Petition
1. Facts necessary to establish

the merits of the petition;
2. Particular erroneous entry or
entries, which are sought to be
a) That the petitioner has corrected and/or the change
been a bona fide sought to be made.
resident of the province
where the petition is filed
for at least 3 years prior The petition shall be supported
to the date of filing; with the following documents:
b) The cause for which the
change of the a) Certified true machine copy of
petitioner’s name is the certificate or of the page of
sought; the registry book containing the
c) The name asked for; entry or entries sought to be
d) All names by which corrected or changed;
petitioner is known. b) At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be
based; and

c) Other documents which the

petitioner or the city or
municipal civil registrar or the
consul general may consider
relevant and necessary for the
approval of the petition.
Grounds
a) Name is ridiculous,
tainted with dishonor or
extremely difficult to write
or pronounce;
b) Consequence of change a) First name or nickname is
of status; ridiculous, tainted with
c) Necessity to avoid dishonor or extremely difficult
confusion; to write and pronounce;
d) Having continuously Upon good and valid b) The new first name or
used and been known grounds, the entries in the nickname has been habitually
since childhood by a civil registry may be and continuously used by the
Filipino name, unaware cancelled and corrected. petitioner and he has been
of his/her alien publicly known by that first
parentage; name or nickname in the
e) A sincere desire to adopt community; or
a Filipino name to erase c) To avoid confusion.
signs of former alienage
all in good faith and
without prejudicing
anybody.
Kind of Proceeding
Summary proceeding
Judicial This can be converted to an Administrative

adversarial proceeding if
there are substantial
changes and affect the
status of an individual
What to File
Verified petition for the

Verified petition in the form of
Signed and verified petition cancellation or correction of
Affidavit
any entry
Notice, Publication and Posting
At least once a week for At least once a week for 2

At least once a week for
three consecutive weeks consecutive weeks (publish the
three consecutive weeks in
in a newspaper of general whole affidavit)
a newspaper of general
circulation (notice of
circulation (notice of hearing)
hearing)
Duty of the civil registrar or Consul
to post the petition in a

No posting No posting conspicuous place for 10

consecutive days
Service of judgment shall be Service of judgment shall

upon the civil register be upon the civil register Transmittal of decision to civil
concerned. concerned. registrar concerned.
Participation by the Government
Solicitor General or the

proper provincial or city
fiscal shall appear on behalf
of the Republic. Civil Registrar is an
Civil Registrar or Consul
indispensable party.
Civil Registrar is not a party

to the proceeding.
Appeal
Civil Registrar General (head of

Court of Appeals Court of Appeals
NCSO)

CRIM INAL PROCEDURE

RULE 110-127
Criminal Law Criminal Procedure

G ENERAL P RINCIPLES
Substantive Remedial
Sources: It declares what acts It provides how the

are punishable. act is to be punished.
1. Rules 110-127 of the Revised Rules of
Court; It defines crimes, It provides for the
2. 1987 Constitution particularly those under treats of their nature method by which a
rights of an accused under Article III (Bill of and provides for their person accused of a
Rights); punishment. crime is arrested,
3. Various acts passed by the legislature like tried or punished.
B.P. Blg. 127;
4. Presidential Decrees;
5. Executive Orders;
6. Decisions of the Supreme Court.
Systems of Criminal Procedure
1. Inquisitorial system – the detection and
Criminal Procedure
prosecution of crimes are left to the initiative of
The method prescribed by law for the apprehension officials and agents of the law. The procedure is
and prosecution of persons accused of any criminal characterized by secrecy and the judge is not
offense, and for their punishment, in case of limited to the evidence brought before him but
conviction. In other words, it “regulates the steps by could proceed with his own inquiry which is not
confrontative.
which one who committed a crime is to be punished”
(People of the Philippines v. Lacson, G.R. No.
149453, April 1, 2003). 2. Accusatorial system – contemplates of
two contending parties before the court which
In its generic sense, it describes the network of hears them impartially and renders judgment after
laws and rules which governs the procedural trial. The procedure is confrontative and the trial
administration of criminal justice, that is, laws and is publicly held and ends with the magistrate
court rules governing arrest, search and seizure, rendering the verdict.
bail etc. (Black’s Law Dictionary, Fifth ed., p. 337).
Adversarial/ Inquisitorial
Accusatorial
The court shall The courts play a very

consider no evidence active role and are not
which has not been limited to the evidence
formally offered. presented before it.
The court has a Judge/s actively

passive role and relies participate/s in the
largely on the gathering of facts and

evidence presented by evidence instead of

both sides to the merely passively
action in order to receiving information Jurisdiction over the Jurisdiction over the
reach a verdict. or evidence from the Subject Matter Person of the
parties. Accused
Refers to the authority Requires that the

3. Mixed system – It is a combination of the of the court to hear person charged with
inquisitorial and the accusatorial system. It and determine a the offense must have
characterizes the criminal procedures particular criminal been brought in to its
observed in the Philippines (Herrera, Remedial case. forum for trial, forcibly
Law, Volume IV, 2007 ed., p. 2-3). by warrant of arrest or
upon his voluntary
submission to the
Liberal Interpretation of the Rules
court.
The Rules on Criminal Procedure being part of the
Rules of Court shall be “liberally construed in order Derived from law. It May be acquired by
to promote their objective of securing a just, speedy can never be acquired consent of the
and inexpensive disposition of every action and solely by consent of accused or by waiver
proceeding” (Sec. 6, Rule 1, Rules of Court). the accused. of objections.
Due process in Criminal Proceedings: is Objection that the If he fails to make his
mandatory and indispensable and cannot be met court has no objection in time, he
without a “law which hears before it condemns and jurisdiction over the will be deemed to
proceeds upon inquiry and renders judgment only subject matter may be have waived it.
after trial.”
made at any stage of
the proceeding, and
the right to make such
Requirements of due process in criminal objection is never
proceedings: waived.
1. That the court or tribunal trying the case is
properly clothed with judicial power to hear and
determine the matter before it; Requisites for a valid exercise of criminal
2. That jurisdiction is lawfully acquired by it jurisdiction: Three important requisites must be
over the person of the accused; present before a court can validly exercise its
3. That the accused is given opportunity to be power to hear and try a case:
heard; and
4. That judgment is rendered only upon lawful 1. It must have jurisdiction over the subject
hearing (Alonte v. Savellano, Jr., G.R. Nos. matter
131652 & 131728, March 9, 1998). 2. It must have jurisdiction over the territory
where the crime was committed
3. It must have jurisdiction over the person of
Criminal Jurisdiction the accused (Herrera, p. 4)
The authority to hear and try a particular offense
and impose the punishment for it (People of the Jurisdiction over the Subject Matter
Philippines v. Mariano, G.R. No. L-40527, June 30,
1976). This refers to the power to hear and determine

cases of the general class to which the proceedings In criminal prosecutions, it is settled that the
in question belong and is conferred by the jurisdiction of the court is not determined by what
sovereign authority which organizes the court and may be meted out to the offender after trial, or even
defines its powers (Reyes v. Diaz, G.R. No. 48754, by the result of the evidence that would be
November 26, 1941). presented at the trial, but by the extent of the
penalty which the law imposes for the
How jurisdiction over the subject matter is
misdemeanor, crime or violation charged in the
conferred: The Philippine Courts have no common
complaint (People of the Philippines v. Judge
law jurisdiction or power, but only those expressly Purisma, G.R. No. 40902, February 18, 1976).
conferred by the Constitution and statutes and
those necessarily implied to make the powers Principle of Adherence of Jurisdiction
effective (Velunta v. Chief, Philippine Constabulary,
G.R. No.71855, January 20, 1988). The jurisdiction of the court is referred to as
“continuing” in view of the general principle that
Jurisdiction cannot be fixed by the will of the parties once a court has acquired jurisdiction, that
nor can it be acquired or diminished by any act of jurisdiction continues until the court has done all
the parties (Herrera, p.5) that it can do in the exercise of that jurisdiction (20
Am. Jur. 2d, Courts, S 147, 1965).
How jurisdiction over the subject matter is
determined: The averments in the complaint or General Rule: The jurisdiction once vested,
information characterize the crime to be prosecuted cannot be withdrawn or defeated by:
and the court before which it must be tried (Buaya v.
a. A subsequent amendment of the
Polo, G.R. No. 75097 January 26, 1989). In order
information;
to determine the jurisdiction of the court in criminal b. A new law amending the rules of jurisdiction
cases, the complaint must be examined for the
purpose of ascertaining whether or not the facts set
out therein and the punishment provided for by law Exception: Where, however, the subsequent
for such facts fall within the jurisdiction of the court statute expressly provides, or is construed to the
where the complaint is filed (Villanueva v. Ortiz, et effect that it is applicable to operate to actions
al, G.R. No. L-15344, May 30, 1960) pending before its enactment (Herrera, p.9).
Statute applicable to a criminal action: Objections to jurisdiction

Jurisdiction over the subject matter is determined
General Rule: The question of jurisdiction may be
by the statute in force at the time of the
raised at any stage of the proceedings (Lu v. Lu Ym,
commencement of the action (Dela Cruz v. Moya,
Sr., G.R. Nos., 153690, 157381, 170889, August 4,
G.R. No. 65192, April 27, 1988) and not at the time
2009)..
of its commission even if the penalty that may be
imposed at the time of its commission is less and Exception: Where there has been estoppel by
does not fall under the court’s jurisdiction (People laches on the party who raised the question (Tijam
of the Philippines v. Lagon, G.R. No.L-45815, May v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).
18, 1990).
However, the Supreme Court clarified that
Imposable penalty: Subject-matter jurisdiction in “estoppel by laches may be invoked to bar the
criminal cases is determined by the authority of the issue of lack of jurisdiction only in cases in which
court to impose the penalty imposable under the the factual milieu is analogous to that in Tijam. In
applicable statute given the allegations of a criminal such controversies, laches should be clearly
information (People of the Philippines v. Lagon, present; that is, lack of jurisdiction must have been
G.R. No. 45815, May 18, 1990). raised so belatedly as to warrant the presumption

that the party entitled to assert it had abandoned or quash a complaint on the ground of lack of
declined to assert it” (Figueroa v. People of the jurisdiction over the person of the accused and
Philippines, G.R. No. 147406, July 14, 2008) motions to quash a warrant of arrest (Herrera, p.55).
If the lower court had jurisdiction, and the case was It must be noted that when an accused moves to
heard and decided upon a given theory, such as for quash an information based on lack of jurisdiction
instance, as that the court had no jurisdiction, the over his person, he must appear in court only on
party who induced it to adopt such theory will not that ground and for that specific purpose. If he
be permitted, on appeal, to assume an inconsistent raises other grounds in support of his motion to
position that the lower court had jurisdiction (Lozon quash (other than lack of jurisdiction over his
v. NLRC, G.R. No. 107660, January 2, 1995). person), he is deemed to have submitted his
person to the jurisdiction of the court (Sanchez v.
Jurisdiction over the territory: It is a fundamental
Demetriou, G.R. Nos. 111771-77, November 9,
rule that for jurisdiction to be acquired by courts in 1993).
criminal cases, the offense should have been
committed or any of its essential ingredients took The rule is different in civil cases, wherein even if
place within the territorial jurisdiction of the court. there are included in a motion to dismiss other
Territorial jurisdiction in criminal cases is the grounds aside from lack of jurisdiction over the
territory where the court has jurisdiction to take person of the defendant, this shall not be deemed a
cognizance or to try the offense allegedly voluntary appearance (Sec. 20, Rule 14).
committed by the accused (Uy v. Court of Appeals,
G.R. No. 119000, July 28, 1997).
Criminal jurisdiction of the Municipal Trial Court
It cannot be waived and where the place of the
(MTC), Metropolitan Trial Court (MeTC) and
commission was not specifically charged, the place
Municipal Circuit Trial Court (MCTC)
may be shown by evidence
1. Over offenses punishable by imprisonment
for a period of 6 years and less.
Jurisdiction over the person of the accused: 2. Over offenses where the fine is PhP4,000
Jurisdiction over the person of the accused is or less.
acquired upon his arrest (Valdenas v. People of the 3. Under P.D. No. 1606 as amended by R.A.
No. 8249, the criminal cases of:
Philippines, G.R. No. L-20687, April 30, 1966) or
a. Government officials.
his voluntary appearance (Layosa v. Rodriguez, b. Offense punishable by imprisonment of 6
G.R. No. L-46080, November 10, 1978). years or less or fine is Php4,000 or less.
c.Official is lower than salary grade 27.
4. Damage to property through criminal
General Rule: Seeking affirmative relief is deemed negligence (B.P. Blg. 129 as amended by R.A.
to be a submission to the jurisdiction of the court. No. 7691).
The voluntary submission may be effected by filing
a motion to quash, appearing for arraignment,
Summary Procedure – Criminal cases under the
participating in the trial or by giving bail.
jurisdiction of the MTC, MeTC and MCTC: To
achieve an expeditious and inexpensive
determination of the cases referred to herein, the
Exception: In the cases of pleadings whose prayer Supreme Court resolved to promulgate the Revised
is precisely for the avoidance of the jurisdiction of Rule on Summary Procedure. In essence, there will
the court, which only leads to a special appearance. only be filing of pleadings and generally no need for
These pleadings are, in criminal cases, motions to a hearing.

Criminal jurisdiction of MTC, MeTC and MCTC 8. Appellate jurisdiction over all cases decided
on Summary Procedure are: (BORAT) by MTC, MeTC, MCTC in their respective
territorial jurisdictions (Sec. 22 of B.P. Blg. 129).
1. B.P. Blg. 22 cases (A.M. No. 00-11-01-SC);
2. Violations of municipal or city ordinances;
3. Violations of the rental law; Jurisdiction over complex crimes: Jurisdiction
4. All other criminal cases where the penalty over the whole complex crime is lodged with the
prescribed by law for the offense charged is trial court having jurisdiction to impose the
imprisonment not exceeding 6 months, or a fine maximum and most serious penalty imposable of
not exceeding PhP1,000, or both, irrespective of an offense forming part of the complex crime. It
other impossible penalties, accessory or must be prosecuted integrally and must not be
otherwise, or of the civil liability arising therefrom;
divided into component offenses which may be
or in offenses involving damage to property
made subject of multiple information brought in
through criminal negligence where the imposable
fine does not exceed ten thousand pesos different courts (Cuyos v. Garcia, G.R. No. L-
(PhP10,000.00) (1991 Revised Rules on 46934, April 15, 1988).
Summary Procedure);
5. Violations of traffic laws, rules and
regulations Jurisdiction over continuing crimes: Continuing
offenses are consummated in one place, yet by the
nature of the offense, the violation of the law is
Note: For a detailed discussion of the Rules on
Summary Procedure, please see Special Laws. deemed continuing (e.g. estafa and libel). As such,
the courts of the territories where the essential
ingredients of the crime took place have concurrent
jurisdiction. But the court which first acquires
Criminal jurisdiction of Regional Trial Court jurisdiction excludes the other courts.
1. Over offenses punishable by imprisonment
for a period of more than 6 years.
2. Over offenses where the fine is more than Jurisdiction over crimes punishable by
PhP4,000. destierro: Where the imposable penalty is
3. Under P.D. No. 1606 as amended by R.A. destierro, the case falls within the exclusive
No. 8249, the criminal cases of: jurisdiction of the Municipal Trial Court,
a. Government officials.
considering that in the hierarchy of penalties under
b. Offense punishable by imprisonment of
more than 6 years or fine is more than Article 71 of the Revised Penal Code, destierro
PhP4,000. follows arresto mayor which involves imprisonment
c.Official is lower than salary grade 27. (People of the Philippines v. Eduarte, G.R. No.
4. Violations of the Comprehensive Dangerous 88232, February 26, 1990).
Drugs Act of 2002 (R.A. No. 9165).
5. Libel cases even though punishable by
prision correctional (Art. 360 of RPC; People of Note: Where the offense is within its exclusive
the Philippines v. Eduarte, G.R. No. 88232, competence by reason of the penalty prescribed
February 26, 1990). therefore, an inferior court shall have jurisdiction to
6. Criminal violations of Intellectual Property
try and decide the case irrespective of the kind and
Code (Samson v. Daway, G.R. Nos. 160054-55,
nature of the civil liability arising from the said
July 21, 2004; Sec. 27 of R.A. No. 166).
offense (Herrera, p.19)
7. Election offenses.

The additional penalty for habitual delinquency is and provincial treasurers, assessors, engineers
not considered in determining jurisdiction because and other provincial department heads.
such delinquency is not a crime (Legados v. de b. City mayors, vice-mayors, members of the
Guzman, G.R. No. 35285, Feb. 20, 1989). Sangguniang Panlungsod, city treasurers,
assessors, engineers and other city department
heads.
c.Officials of the diplomatic service occupying the
Criminal jurisdiction of Sandiganbayan: The position of consul and higher.
Sandiganbayan shall exercise exclusive original d. Philippine army and air force colonels, naval
jurisdiction in all cases involving: captains, and all officers of higher rank.
e. Officers of the PNP, occupying the position
1. Violations of R.A. No. 3019 as amended of provincial director and those holding the rank
(Anti Graft and Corrupt Practices Act) and R.A.
of senior superintendent or higher.
No. 1379 (An Act Declaring Forfeiture in favor of
f. City and provincial prosecutors and their
the state any property found to have been
assistants, and officials and prosecutors in the
unlawfully acquired by Public Officer or
Office of the Ombudsman and special
Employee).
prosecutors.
2. Other offenses or felonies whether simple or
g. Presidents/directors/trustees /managers of
complexed with other crimes committed by public
GOCCs, state universities or educational
officials and employees mentioned in Sec 4(a)
institutions/foundations.
P.D. No. 1606 as amended by R.A. No. 7975 in
3. Members of Congress and officials thereof
relation to their office.
classified as Grade 27 and up;
3. Crimes mentioned in Chapter 2 Section 2
4. Members of the Judiciary, without prejudice
Title VII Book 2 of the Revised Penal Code i.e.
to Constitutional provisions.
Art 210: Direct Bribery, Art 211: Indirect Bribery,
5. Chairmen and members of Constitutional
Art 212: Corruption of Public Officials.
Commissions, without prejudice to Constitutional
4. Violations of Executive Orders 1, 2, 14, 14- provisions.
A of 1986 (Marcoses’ Ill-gotten wealth cases).
5. Violation of R.A. No. 6713 - Code of
Conduct and Ethical Standards. When offense deemed committed “in relation to
6. Violation of R.A. No. 7080 - The Plunder public office”: The offense must be a constituent
Law element of the crime as defined in the statute. The
7. R.A. No. 9160 - Violation of The Anti-Money
test is whether the offense cannot exist without the
Laundering Law when committed by a public
officer. office (Cunanan v. Arceo, G.R. No. 116615, March
8. P.D. No. 46 referred to as the gift-giving 1, 1995).
decree.
An offense may be considered as committed in

Officials under the exclusive jurisdiction of the relation to the office if:
Sandiganbayan:
1. It cannot exist without the office
1. Those expressly enumerated in P.D. No. 2. The office is a constituent element of the
1606, as amended by R.A. No. 8249; Violations crime as defined in the statute
of R.A. No. 3019 (Anti-Graft and Corrupt 3. The offense be intimately connected with
Practices Act), R.A. No. 1379 and Chapter 2, Sec. the office of the offender; and
2, Title 7, Book 2, RPC. 4. The fact that the offense was committed in
2. Officials of the executive branch, occupying relation to the office must be alleged in the
salary grade 27 and higher, specifically including: information (People of the Philippines v.
a. Provincial governors, vice governors, Magallanes, G.R. No. 118013-14, October 11,
members of the Sangguniang Panlalawigan 1995).

an application pursuant to the “Child and Youth

Welfare Code” or “P.D. No. 603”.
What is controlling is the specific factual allegations
in the information that would indicate the close
intimacy between the discharge of the accused’s
Criminal jurisdiction of the Court of Tax
official duties and the commission of the offense
Appeals
charged, in order to qualify the crime as having
been committed in relation to public office (Lacson 1. Exclusive original jurisdiction over all
v. Executive Secretary, 128096, January 20, 1999). criminal offenses arising from violations of the
National Internal Revenue Code (NIRC) or Tariff
In the absence of any allegation that the offense and Customs Code and other laws administered
was committed in relation to the office of the by the BIR or the Bureau of Customs.
accused or was necessarily connected with the 2. Offenses where the principal amount of
discharge of their functions, the regional court, not taxes and fees, exclusive of charges and
the Sandiganbayan, has jurisdiction to hear and penalties, claimed is less than PhP1,000,000.00
decide the case (People of the Philippines v. or where there is no specified amount claimed,
Cawaling, G.R. 117970, July 28, 1998). shall be tried by the regular courts and the
jurisdiction of the Court of Tax Appeals (CTA)
shall be appellate.
3. Exclusive appellate jurisdiction in criminal
Exemptions:
offenses:
1. Election offenses: It is the Regional Trial a. Over appeals from the judgments,
Court that has jurisdiction even if they are resolutions or orders of the RTC in tax cases
committed by public officers classified as Grade originally decided by them.
27 and higher and in relation to their offices (Sec. b. Over petitions for review of the judgments,
268, Omnibus Election Code). resolutions or orders of the RTC in the exercise
2. Court martial cases: Offenses committed of their appellate jurisdiction over tax cases
by members of the Armed Forces and other originally decided by the MTC, MeTC and
persons subject to military law are cognizable by MCTC. (R.A. No. 1125 as amended by R.A. No.
court martial if such offenses are “service 9282).
connected” as expressly enumerated in R.A. No.
7055.
Katarungang Pambarangay (Chapter 7, Title I,
Book III of the Local Government Code of 1991)
Criminal jurisdiction of Family Courts: R.A. No.
8369 establishing the Family Court granting them
exclusive original jurisdiction over child and family Pre-requisite to filing of complaint in Court
cases, namely:
General Rule: A confrontation between the parties
1. Criminal cases where one or more of the before the lupon chairman or the pangkat ng
accused is below 18 years of age but not less tagapagkasundo is needed before a complaint,
than 9 years of age or; petition, action or proceeding may be filed or
2. Where one or more of the victims is a minor instituted directly in court or any other government
at the time of the commission of the offense.
office for adjudication. The parties thereto may still
go to the court either (1) when the lupon secretary
Provided, that if the minor is found guilty, the court or pangkat secretary as attested to by the lupon or
shall promulgate the sentence and ascertain any pangkat chairman certifies that no conciliation or
civil liability which the accused may have incurred. settlement has been reached, or (2) when the
The sentence shall be suspended without need of parties repudiated the settlement.

Exceptions: RULE 110

P ROSECUT ION OF O FFENSES
1. Where the accused is under detention;
2. Where a person has been deprived of
personal liberty calling for habeas corpus Criminal Action
proceedings;
One by which the State prosecutes a person for an
3. Where actions are coupled with provisional
remedies; act or omission punishable by law (Section 3[b],
4. Where the action may be barred by the Rule 1).
statute of limitations. SECTION 1. INSTITUTION OF CRIMINAL
ACTIONS
Subject matter of amicable settlement
For offenses where a preliminary investigation
General Rule: The lupon shall have authority to is required: By filing the complaint with the
bring parties actually residing in the same city or “proper officer” for the purpose of conducting the
municipality for amicable settlement of all disputes. requisite preliminary investigation (Rule 110, Sec 1
[a]).
Preliminary investigation is required for offenses
Exceptions: (GPIF-NRBO) where the penalty prescribed by law is at least 4
1. Where one party is the government, or any years, 2 months and 1 day (or Prision Correccional
subdivision or instrumentality thereof; in its medium period) without regard to fine (Rule
2. Where one party is a public officer or 112, Sec. 1 Par. 2).
employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment The term “proper officer” refers to officers
exceeding one (1) year or a fine exceeding Five authorized to conduct the requisite preliminary
thousand pesos (P5,000.00); investigation, namely, the provincial or city
4. Offenses where there is no private offended
prosecutors, and other officers as may be
party;
5. Where the dispute involves real properties authorized by law. Their authority to conduct
located in different cities or municipalities unless preliminary investigation shall include all crimes
the parties thereto agree to submit their cognizable by the proper court in their respective
differences to amicable settlement by an territorial jurisdiction.
appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or For all other offenses: By filing the complaint or
municipalities, except where such barangay units information directly with the MTC or the
adjoin each other and the parties thereto agree to complaint with the office of the prosecutor
submit their differences to amicable settlement by
an appropriate lupon;
7. Such other classes of disputes which the
President may determine in the interest of justice In Manila and other chartered cities, the complaint
or upon the recommendation of the Secretary of shall be filed with the office of the prosecutor unless
Justice. otherwise provided in their charters (Rule110, Sec
1 [b]).

Does not apply to offenses which are subject to interrupted upon filing the complaint with the
summary procedure. punong barangay. The prescriptive periods shall
resume upon receipt by the complainant of the
complaint or the certificate of repudiation or of the
Criminal Action Criminal Prosecution certification to file action issued by the lupon or
pangkat secretary: Provided, however, that such
Instituted once a Instituted once the interruption shall not exceed 60 days from the filing
complaint has been information is filed by of the complaint with the punong barangay.
filed in the proper the prosecutor in
office or court as the court.
case may be. Remedies of the offended party if the
Generally bars the No such effect. prosecutor refuses to file an information:
running of the (MANS-CCS)
prescriptive period of 1. Take up the matter with the Secretary of
the offense. Justice in accordance with the Revised
Administrative Code or with the President in
special cases;
Effect of institution of the criminal action: It 2. Lodge a new complaint before the court
interrupts the running of the period of prescription having jurisdiction over the offense where there is
of the offense charged unless otherwise provided no double jeopardy;
3. Institute administrative charges against the
by special laws.
erring prosecutor;
4. File criminal action against the prosecutor
under Art. 208 of RPC for negligence to
Act No. 3326 governs the prescriptive periods of prosecute or tolerance of the crime;
violations of special laws, or offenses other than 5. File civil action for damages under Art. 27 of
those penalized under the Revised Penal Code. the New Civil Code for failure to render service by
a public officer;
6. File an action for mandamus, in case of
grave abuse of discretion;
There is no distinction between cases under the
Mandamus to compel prosecution: The writ of
RPC and those covered by special laws with
mandamus is not available to control discretion. It
respect to the interruption of the period of
is a matter of discretion on the part of the
prescription. In cases involving special laws, the
prosecutor to determine which persons appear
Supreme Court has held that the institution of
responsible for the commission of a crime.
proceedings for preliminary investigation against
However, the moment he finds one to be so
the accused interrupts the period of prescription
liable, it becomes his inescapable duty to charge
(People of the Philippines v. Pangilinan, G.R. No.
him therewith and to prosecute him for the same.
152662, June 13, 2012).
In such a situation, the rule loses its discretionary
character and becomes mandatory (Metropolitan
Bank and Trust Company v. Rogelio Reynaldo
Suspension of prescriptive periods of cases and Jose C. Adrandea, G.R. No. 164538, August
falling under the authority of the Lupon: Under 9, 2010).
Sec. 410(c) of the Local Government Code of 1991,
while the dispute is under mediation, conciliation, or 7. Ask for a special prosecutor (Hoey v. Prov.
arbitration, the prescriptive periods for offenses and Fiscal of Rizal, G.R. No. L-61323-24, June 29,
cause of action under existing laws shall be 1984).

May injunction be issued to restrain criminal 1. In writing;

prosecution? 2. In the name of the People of the Philippines
of the Philippines; and
General Rule: No. Criminal prosecutions may not 3. Against all persons who appear to be
be restrained or stayed by injunction, preliminary or responsible for the offense involved.
final. The reason being, public interest requires that
criminal acts be immediately investigated and
The People of the Philippines is the real offended
prosecuted for the protection of the society
(Domingo v. Sandiganbayan, G.R. No. 103276, party but since the crime is also an outrage against
April 14, 1996). the offended party, he is entitled to intervene in its
prosecution in cases where the civil action is
impliedly instituted therein. However, when the
criminal action is instituted in the name of the
Exceptions:
offended party (not People of the Philippines), the
1. To afford adequate protection to the constitutional defect is merely of form and may be cured.
rights of the accused. (Hernandez v. Albano, G.R.
SECTION 3. COMPLAINT DEFINED
No. L-19272, Jan. 25, 1967);
2. When necessary for the orderly administration of Complaint
justice or to avoid oppression or multiplicity of
actions. (Hernandez v. Albano, supra.); A sworn written statement charging a person with
3. When there is a prejudicial question which is sub an offense subscribed by the offended party, any
judice; peace officer, or public officer charged with the
4. When the acts of the officer are without or in enforcement of the law violated.
excess of authority (Planas v. Gil, G.R. No. L-
46440, January 18, 1939); The complaint as defined under Section 3 is
5. When the prosecution is under an invalid law, different from the complaint filed with the
ordinance or regulation (Young v. Rafferty, G.R. Prosecutor’s Office. The complaint mentioned in
No. L-10951, February 14, 1916); this section refers to one filed in court for the
6. When double jeopardy is clearly apparent; commencement of a criminal prosecution for
7. When the court had no jurisdiction over the violation of a crime, usually cognizable by municipal
offense (Lopez v. City Judge. G.R. No. L-25795,
trial courts as well as to a complaint filed by an
Oct. 29, 1966);
8. When it is a case of persecution rather than offended party in private crimes or those which
prosecution; cannot be prosecuted de officio.
9. When the charges are manifestly false and Requisites of a Complaint: (WOP-CS)
motivated by the lust for vengeance;
10.When there is clearly no prima facie case 1. It must be in writing and under oath;
against the accused and a motion to quash on 2. It must be in the name of the People of the
that ground has been denied (Salonga v. Pano, Philippines;
G.R. No. L-59524, Feb. 18, 1985); and 3. It must charge a person with an offense;
11.Prevent the threatened unlawful arrest of and
petitioners (Brocka v. Enrile, G.R. Nos. 69863- 4. It must be subscribed by the offended party,
65, December 10, 1990). by any peace officer or public officer charged with
the enforcement of the law violated.
SECTION 2. FORM OF THE COMPLAINT OR
INFORMATION Note: A complaint presented by a private person
when not sworn to by him is not necessarily void.
Common requisites as to the form of complaint The want of an oath is a mere defect of form which
and of information:
does not affect the substantial rights of the

defendant on the merits (People of the Philippines v. Requisites: (WCSF)

Historillo, G.R. No. 130408, June 16, 2000).
1. It must be in writing;
2. It must charge a person with an offense;
3. It must be subscribed by the fiscal; and
The complaint filed with the prosecutor’s office, 4. It must be filed in court.
from which the latter may initiate a preliminary
investigation, refers to:
Complaint Information
1. Any written complaint;
2. Filed by an offended party or not; Subscribed by the
3. Not necessarily under oath, except in 2 offended party, any Subscribed by the
instances: peace officer or other fiscal.
a. Complaint for commission of an offense officer charged with (Indispensable
which cannot be prosecuted de officio or is the enforcement of the requirement)
private in nature law violated.
b. Where the law requires that it is to be
started by a complaint sworn to by the offended It may be filed either in
party, or when it pertains to those which need to It is filed with the
court or in the
be enforced by specified public officers. court.
prosecutor’s office.
It need not be under

Persons who can file a complaint: oath. The fiscal who
It must be made under
1. Offended party – is the person against files it is already
oath.
whom or against whose property the crime was acting under his
committed; oath of office.
2. Any peace officer;
3. Other public officer charged with the It usually refers to
enforcement of the law violated (e.g. Internal felonies which cannot It usually refers to
Revenue Officer for violation of the NIRC, custom be prosecuted de public crimes.
agents with respect to violations of the Tar iff and officio
Customs Code).
Under the Rule on Summary Procedure: A Persons authorized to file information:

complaint may be directly filed in the MTC,
provided that in Metro Manila and in chartered 1. City or provincial prosecutor and their
cities, the criminal action may only be commenced assistants; and
by the filing of information, which means, only by 2. Duly appointed special prosecutors.
the prosecutor, except when the offense cannot be
prosecuted de officio as in private crimes. Note: Prosecution in the RTC is always
commenced by information, except:
SECTION 4. INFORMATION DEFINED 1. In certain crimes against chastity

(concubinage, adultery, seduction, abduction,
Information acts of lasciviousness); and
2. Defamations imputing any of the aforesaid
An accusation in writing charging a person with an offenses wherein a sworn written complaint is
offense, subscribed by the prosecutor and filed with required in accordance with Section 5 of this
the court. Rule.
3. In case of variance between the complaint

filed by the offended party and the information in Luisito Q. Gonzalez (G.R. No. 184337, August 7,
crimes against chastity, the complaint controls 2009), the Supreme Court held that xxx only the
(People of the Philippines v. Mendez, G.R. No. Solicitor General may bring or defend actions in
132546, July 5, 2000). behalf of the Republic of the Philippines, or
4. An information not properly signed cannot represent the People of the Philippines or State in
be cured by silence, acquiescence or even by
criminal proceedings before the Supreme Court
express consent (Villa v. Ibanez, G.R. No. L- and the Court of Appeals. Except:
4313, March 20, 1951).
1. When the State and the offended party are
deprived of due process because the prosecution
SECTION 5. WHO MUST PROSECUTE
is remiss in its duty to protect the interest of the
CRIMINAL ACTIONS
State and the offended party and
Full discretion and control of the prosecutor: All 2. When the private offended party questions
the civil aspect of a decision of a lower court.
criminal actions commenced by a complaint or
information shall be prosecuted under the direction
and control of the prosecutor. It is assumed that a decision on the merits had
Note: The institution of a criminal action depends already been rendered by the lower court and it is
the civil aspect of the case which the offended
upon the sound discretion of the fiscal. But once
party is appealing.
the case is already filed in court, the same can no
longer be withdrawn or dismissed without the
court’s approval. Should the fiscal find it proper to
conduct a reinvestigation of the case at such stage, In all cases elevated to the Sandiganbayan and
the permission of the Court must be secured from the Sandiganbayan to the SC, the Office of
(Crespo v. Mogul, G.R. No. l-53373, June 30, the Ombudsman, through its Special Prosecutor
1987). shall represent the People of the Philippines of the
Philippines, except in cases filed pursuant to E.O.
Conditions for a private prosecutor to Nos. 1, 2, 14 and 14-A, issued in 1986 as it is the
prosecute a criminal action PCGG that will prosecute such cases. (Sec. 4, R.A.
No. 8249).
1. The public prosecutor has a heavy work
schedule, or there is no public prosecutor In government service-related cases, the
assigned in the province or city; prosecution of cases cognizable by the
2. The private prosecutor is authorized in
Sandiganbayan shall be under the exclusive control
writing by the Chief of the Prosecutor Office or
and supervision of the Office of the Ombudsman. In
the Regional State Prosecutor (RSP);
3. The authority of the private prosecutor must cases cognizable by the regular courts, the law
be approved by the court; recognizes a concurrence of jurisdiction between
4. The private prosecutor shall continue to the Office of the Ombudsman and other
prosecute the case until the end of the trial unless investigative agencies of government in the
the authority is withdrawn or otherwise revoked prosecution of said cases (Uy v. Sandiganbayan,
(A.M. No. 02-2-07-SC, effective May 1, 2002); G.R. Nos. 105965-70, March 20, 2001).
5. In case of the withdrawal or revocation of
the authority of the private prosecutor, the same Matters falling within the control and discretion
must be approved by court (Memo Circ. No. 25, of the prosecution:
April 26, 2002, Regarding Amendment to Sec. 5, 1. What case to file. (People of the Philippines v.
Rule 110). Pineda, G.R. No. L-26222, July 21, 1967);
2. Whom to prosecute. (People of the Philippines v.
In the case of Heirs of Federico C. Delgado v Devaras, G.R. Nos. 100938-39, Dec. 15, 1993);

3. Manner of prosecution. (People of the Philippines The crimes of concubinage and adultery can be
v. Nazareno, G.R. No. 103964, Aug. 01, 1996); prosecuted only by the offended spouse,
4. Right to withdraw information before arraignment regardless of his or her age, as long as he or she
even without notice and hearing. (Galvez v. CA, is not otherwise incapacitated (Florence D.
G.R. No. 114046, October 24, 1994). Regalado, Remedial Law Compendium, Volume
II, 11th Edition, p.299).
Matters within the control of the court after case
When the complainant had already divorced the
is filed:
accused, he can no longer file the complaint
1. Suspension of Arraignment (Crespo v. Mogul, (Pilapil v. Ibay-Somera, G.R. No. 80116, June 30,
G.R. No. l-53373, June 30, 1987); 1989).
2. Reinvestigation. (Velasquez v. Tuquero, G.R. No.
Reason: The complainant is not legally a spouse
88442, Feb. 15, 1990);
3. Prosecution by Fiscal (Sta. Rosa Mining Co. v. anymore at the time of the institution of the
Zabala, G.R. No. L-44723, Aug. 31, 1997); action, therefore, he has no personality to file a
4. Dismissal of the case (Dungog v. CA, G.R. Nos. complaint regardless of the fact that adultery was
77850-51, Mar. 25, 1988); indeed committed during the existence of the
5. Downgrading of offense or dropping of accused marriage;
even before plea (Rule 110, Sec. 14)
Both guilty parties must be included in the
complaint;
Private Crimes
The offended party must not have given his
Those which cannot be prosecuted except upon consent to the offense or pardoned the offenders.
complaint filed by the offended party. This legal
requirement was imposed out of consideration for
the aggrieved party who might prefer to suffer the 2. Seduction, Abduction and Acts of
outrage in silence rather than go through the Lasciviousness: prosecuted exclusively and
scandal of a public trial. successively by the following persons in this
order:
Note: The proper term is not private crime but
a. By the offended woman;
rather a crime that cannot be prosecuted de officio. b. By the parents, grandparents or legal/judicial
Prosecution of private crimes guardians in that successive order, if the
offended party is incompetent or incapable of
Who may prosecute: doing so;
c. By the State pursuant to the Doctrine of
1. Concubinage and adultery: The crimes of Parens Patriae, when the offended party dies
adultery and concubinage shall not be prosecuted or becomes incapacitated before she could file
except upon the complaint filed by the offended the complaint and she has no known parents,
spouse (Sec. 5, Rule 110). grandparents or guardian.
The supposed offended party must have the 3. Defamation imputing to a person any of
status, capacity or legal representation to do so at the foregoing crimes of concubinage, adultery,
the time of the filling of the criminal action. In seduction, abduction or acts of lasciviousness
other words, the marital relationship must still be can be prosecuted only by the party or parties
subsisting (Pineda, The Revised Rules on defamed (Article 360, last par., Revised Penal
Criminal Procedure, 2006 Edition, p.18). Code).

If the offended party is of legal age and does not discretion, can validly pardon the accused by
suffer from physical or mental disability, she herself if she has no parents or where the
alone can file the complaint to the exclusion of all accused is her own father and her mother is
regardless of the fact that he/she subsequently dead;
dies. b. The parents, grandparents or guardian of
the offended minor, in that order, cannot
Pardon and consent: In some private crimes, the extend a valid pardon in said crimes without
offended party can given his consent or pardon to the conformity of the offended party, even if the
the accused in order to prevent the institution of latter is a minor;
any criminal action. c.If the offended woman is of age and not
otherwise incapacitated, only she can extend a
valid pardon.
Pardon Consent
In all cases, the pardon must come prior to the
Refers to past acts. Refers to future acts. institution of the criminal action. After the case has
been filed in court, any pardon made by the private
In order to absolve the In order to absolve the complainant, whether by sworn statement or on the
accused from liability, it accused from liability, it witness stand, cannot extinguish criminal liability.
must be extended to is sufficient even if The only act that extinguishes the penal action and
both offenders. granted only to the the penalty that may have been imposed is the
offending spouse. marriage between the offender and the offended
party (Alonte v. Savellano, Jr., G.R. No. 131652,
Given after the Given before the March 9, 1998).
commission of the commission of the
crime. crime. The pardon in cases of seduction, abduction,
and acts of lasciviousness must only be
expressed and cannot be implied as contrast to
Who can give pardon or consent: adultery/concubinage (Art. 344, RPC)
1. Concubinage and adultery: only the The offended party cannot give consent on the
offended spouse, not otherwise incapacitated, crimes of seduction, abduction and acts of
can validly extend the pardon or consent lasciviousness to bar a complaint against the
contemplated therein. accused unlike in adultery/concubinage
Reason: Art. 344 of the RPC states that the
Must pardon both the erring spouse and mistress offended party can consent only to the crimes of
or concubine. adultery and concubinage to absolve the accused
from the criminal liability. There is no mention of
Pardon, can either be expressed or implied “consent” in the crimes of seduction, abduction and
through the acts of the offended spouse (Ligtas v. acts of lasciviousness to absolve the accused.
Court of Appeals, G.R. No. L-47498 May 7,
1987). Subsequent marriages: The subsequent marriage
between the offended party and the accused
Consent can only be expressed and never extinguishes the criminal liability of the latter or
implied. shall remit the penalty already imposed upon him,
2. Seduction, abduction, and acts of together with that of the co-principals, accomplices
lasciviousness and accessories (Art. 344, Revised Penal Code).
a. The offended minor, if with sufficient

Except: 126210, March 09, 2000).

1. In adultery and concubinage (Regalado, p. SECTION 6. SUFFICIENCY OF COMPLAINT OR
306) INFORMATION
2. Where the marriage was invalid or
contracted in bad faith in order to escape criminal Contents of a valid complaint or information:
liability (People of the Philippines v. Santiago,
1. Name and surname of the accused, or any
G.R. No. L-27972, October 31, 1927);
appellation or nickname by which he is known or
3. In “private libel,” or the libelous imputation to
has been known;
the complainant of the commission of the crimes
2. The designation of the offense;
of concubinage, adultery, seduction, abduction, or
3. The acts or omissions complained of as
acts of lasciviousness, and in slander by deed
constituting the offense;
(People of the Philippines v. Orzame;39 O.G.
4. The name of the offended party;
1168)
5. The approximate date of the commission of
4. In multiple rape, insofar as the other
the offense;
accused in the other acts of rape respectively
6. The place where the offense was
committed by them are concerned (People of the
committed.
Philippines v. Bernardo, 36 O.G. 3479)
Purpose of the rule:

Note: The acquittal or death of one of the accused
in the crime of adultery does not bar the 1. To inform the accused of the nature and
prosecution of the other accused (People of the cause of accusation against him;
Philippines v. Topiño, et al., G.R. No. 11895, 2. To notify the defendant of the criminal acts
December 20, 1916). imputed to him so that he can duly prepare his
defense.
However, the death of the offended spouse before
the filing of the complaint for adultery bars further
prosecution, but if the offended spouse died after Criteria for the sufficiency of an indictment
the filing of the corresponding complaint, his death 1. Whether the indictment contains the
will not prevent the proceeding from continuing to elements of the offense to intended to be
its ultimate conclusion because the participation of charged, and sufficiently apprises the defendant
the offended party in private crimes is essential not of what he must be prepared to meet; and
for the maintenance of the action but solely for the 2. In case any other proceedings are taken
initiation thereof (People of the Philippines v. Diego, against him for a similar offense, whether the
CA-G.R. No. 1626, December 15, 1937). records show with accuracy to what extent he
may plead a former acquittal or conviction
Note: Desistance of the complainant does not bar (Russel v. US, 369 U.S. 749, 8 L. Ed. 2d 242).
criminal prosecution as long as the action has been
instituted but it operates as a waiver of the right to
pursue civil indemnity. When there is ambiguity in the accusation, such
must be resolved in favor of the accused.
An offended party in a criminal case has sufficient
personality to file a special civil action for certiorari, General Rule: A defective information cannot
in proper cases, even without the imprimatur of the support a judgment of conviction
State. In so doing, the complainant should not bring Exception: When the defect in the information was
the action in the name of the People of the cured by evidence during the trial and no objection
Philippines of the Philippines. The action may be appears to have been raised (Abunado v. People of
prosecuted in the name of the said complainant the Philippines, G.R. No. 159218, March 30, 2004).
(Perez v. Hagonoy Rural Bank, Inc., G.R. No.

The non-inclusion of some of the names of the constituting the offense, in ordinary, concise and
eyewitnesses in the information does not preclude particular words;
the prosecutor from presenting them during trial 3. The specific qualifying and aggravating
(People of the Philippines v. Dela Cruz, G.R. No. circumstances must be stated in ordinary and
137967, April 19, 2001). concise language.
SECTION 7. NAME OF THE ACCUSED

Note: The qualifying and aggravating
Purpose: To make a specific identification of the circumstances cannot be appreciated even if
person to whom the commission of an offense is proved unless alleged in the information (People of
being imputed so that the court may acquire the Philippines v. Perreras, G.R. No. 139622, 31
jurisdiction over his person and to inform him of the July 2001).
facts.
Rules in stating the name of the accused:
In case of allegation of aggravating circumstance of
1. The complaint or information must state the habitual delinquency, it should not be generally
name and surname of the accused or any averred. The information must specify the requisite
appellation or nickname by which he has been or information regarding:
is known must be stated;
2. If name cannot be ascertained, a fictitious 1. The commission of the previous crimes;
name with a statement that his true name is 2. The last conviction or release;
unknown; 3. The other previous conviction or release of
3. If the true name thereafter ascertained, the accused.
such name shall be inserted in the complaint or
information or record (Sec. 7, Rule 110);
4. While one or more persons, along with In rape cases, the concurrence of the minority of
specified and named accused, may be sued as the victim and her relationship with the offender is a
“John Does”, an information against all accused special qualifying circumstance which should be
described as “John Does” is void, and an arrest both alleged and proved with certainty in order to
warrant against them is also void. warrant the imposition of the (maximum) penalty.
Note: An error in the name of the accused is

Allegations prevail over the designation of the
reversible as long as his identity is sufficiently
offense in the information: It is not the
established. This defect is curable at any stage of
the proceedings as insertion of the real name of the designation of the offense in the complaint or
accused is merely a matter of form (People of the information that is controlling (People of the
Philippines v. Padica, G.R. No. 102645, Apr. 07, Philippines v. Samillano, G.R. No. L-31375, April
1993). 22, 1974); the facts or acts or omissions alleged
therein and not its title determine the nature of the
SECTION 8. DESIGNATION OF THE OFFENSE crime (People of the Philippines v. Magdowa, G.R.
No. L-48457 December 13, 1941).
The information or complaint must state or
designate the following whenever possible: Reason: The designation of the offense is only the
conclusion of the prosecutor. It is the acts or
1. The designation of the offense given by the
omissions alleged in the information that shall be
statute, if there is no designation of the offense;
reference shall be made to the section of the controlling on which judgment of the court shall be
statute punishing it; based.
2. The statement of the acts or omissions

The accused may be convicted of a crime more no offense, the indictment is insufficient.
serious than that named in the title or preliminary
part if such crime is covered by the facts alleged in
the body of the information and its commission is Exception: Accused’s failure to object is
established by evidence (Buhat v. Court of considered a waiver of the constitutional right to be
Appeals, G.R. No. 119601, Dec. 17, 1996). informed of the nature and cause of the accusation.
It is competent for a person to waive a right
guaranteed by the Constitution, and to consent to
An accused cannot be convicted under one act action which would be invalid if taken against his
when he is charged with a violation of another if the will (People of the Philippines v. Lopez, G.R. Nos.
change from one statute to the other involves: 135671-72, November 29, 2000).
a. A change in the theory of the trial; Rule on negative averments
b. Requires of the defendant a different
defense; or General Rule: Where the statute penalizes
c.Surprises the accused in any way. generally the acts therein defined and is intended to
apply to all persons indiscriminately, although some
special situations are excepted from its coverage,
SECTION 9. CAUSE OF THE ACCUSATION
the information is sufficient if it does not allege that
Purpose: the accused falls within the excepted situation, for
then the complete definition of the offense is
1. To enable the court to pronounce proper entirely separable from the exceptions and can be
judgment; made without reference to the latter. If he falls
2. To furnish the accused with such a within the exempted class, the accused may raise
description of the charge as to enable him to such fact as a defense (United States v. Chan
make a defense;
Toco, G.R. No. L-3851, December 17, 1908).
3. As a protection against further prosecution
for the same cause. Simply put, when an exception or negative
allegation is not an ingredient of the offense and is
General Rule: An accused cannot be convicted of a matter of defense, it need not be alleged.
an offense, unless it is clearly charged in the Exception: Where the statute alleged to have been
complaint or information. Constitutionally, he has a violated applies only to specific class of persons
right to be informed of the nature and cause of the and to special conditions, the information must
accusation against him. To convict him of an allege facts establishing that the accused falls
offense other than that charged in the complaint or within the specific class affected and not those
information would be a violation of his constitutional excepted from the coverage of the law (United
right (People of the Philippines v. Lopez, G.R. Nos. States v. Pompeya, G. R. No. L-10255, August 6,
135671-72, November 29, 2000). 1915).
Complex crimes: Where what is alleged in the
It is fundamental that every element of which the information is a complex crime and the evidence
offense is composed must be alleged in the fails to support the charge as to one of the
information, i.e. important facts and circumstances component offenses, the defendant can be
convicted of the offense proven.
must be determined, for if the facts alleged do not
constitute an offense within the terms and meaning Aggravating circumstance: All aggravating
of the law upon which the accusation is based, or if circumstances, either generic or qualifying, must be
the facts alleged may all be true and yet constitute alleged in the information. The failure to allege such

cannot be cured by an amendment of the sufficient definiteness is a Motion for Bill of

information after the accused entered his plea Particulars under Rule 116 Sec. 10. The failure to
(People of the Philippines v. Antonio, G.R. No. move for specification or the quashal of the
144266, November 27, 2002). information on any of the grounds provided for in
the Rules deprives the accused of the right to
However, even though the aggravating
object to evidence which could be lawfully
circumstance cannot be considered to impose a introduced and admitted under an information of
graver penalty, it can still be a basis for the more or less general terms but which sufficiently
awarding of exemplary damages. (People of the
charges the accused with a definite crime. Besides,
Philippines v. Evina, G.R. Nos. 124830-31, June
the exact date of the commission of the crime is not
27, 2003)
an essential element of the crime (People of the
SECTION 10. PLACE OF COMMISSION OF THE Philippines v. Elpedes, G.R. No. 137106-07,
OFFENSE January 31,2001).
Purpose: To show territorial jurisdiction (Herrera, SECTION 12. NAME OF THE OFFENDED PARTY
p.132). General Rule: The complaint or information must
General Rule: The complaint or information is state the name and surname of the person against
sufficient if it can be understood from its allegations whom or against whose property the offense was
that the offense was committed or some of its committed, or any appellation or nickname by
essential ingredients occurred at some place, within which such person has been or is known. If there is
the jurisdiction of the court. no better way of identifying him, he must be
described under a fictitious name. (Sec. 12, Rule
Exception: Unless the particular place where it 110).
was committed constitutes an essential element of
the offense charged or is necessary for its Exception: In crimes against property, if the name
identification (Sec. 10, Rule 110)(E.g. Trespass to of the offended party is unknown, the property must
dwelling, destructive arson, robbery in an inhabited be described with such particularity as to properly
house, violation of domicile, penalty on the keeper, identify the particular offense charged (Sec. 12,
watchman, visitor of opium den, and violation of Rule 110).
election law). SECTION 13. DUPLICITY OF OFFENSE
SECTION 11. DATE OF COMMISSION OF THE
Duplicity of Offense in information or complaint
OFFENSE
means the joinder of 2 or more separate and
General Rule: It is not necessary to state in the distinct or different offenses in one and the same
complaint or information the precise date the information or complaint.
offense was committed. The offense may be The filing of a Motion to Quash is the remedy in
alleged to have been committed on a date as near
case of duplicity of offense in an information
as possible to the actual date of its commission. (Section 3[f], Rule 117).
(Sec. 11, Rule 110).
Purpose: The State should not heap upon the
Exception: Except when the date is a material
defendant two or more charges which might
ingredient of the offense (Sec. 11, Rule 110) (e.g. confuse him in his defense (People of the
Infanticide, Abortion, Bigamy, Violation of Sunday Philippines v. Ferrer, G.R. No. L-8957,April 29,
Statute [Election Law]). 1957).
The remedy against an indictment that fails to
allege the time of commission of the offense with

General Rule: A complaint or information must Mala in se felonies cannot absorb mala prohibita
charge only one offense. crimes (Loney v. People of the Philippines, G.R.
No. 152644, February 10, 2006).,
Exceptions:
1. Complex crimes; Waiver: If there is duplicity in the offense charged,

2. Special Complex crimes; the remedy of the accused is to timely file a motion
3. Delito continuado; to quash (Sec. 3, par. [f], Rule 117). If he fails to do
4. Crimes susceptible of being committed in so, that objection is deemed waived (United States
various modes; v. Paraiso, G.R. No. 2284, October 20, 1905).
5. Crimes of which another offense is an
ingredient;
6. When a single act violates different statutes
(Herrera, p. 141) In which case, the accused may be tried and
convicted for as many offenses charged and
proved by the prosecution during the trial. Separate
Note: The test to be applied to determine whether penalty for each offense shall be imposed (Sec. 3,
there are two offenses or only one, is whether each Rule 120).
provision requires proof of a fact which the other
does not (Blockburger v. United States, 284 U.S.
299 [1932]). Splitting of case not allowed: Adefendant should
not be harassed with various prosecutions base on
the same act by splitting the same into various
Requisites of continuous crime: charges, all emanating from the same law violated
1. Plurality of acts performed separately during when the prosecution could easily and well embody
a period of time; them in a single information (People of the
2. Unity of penal provision infringed upon or Philippines v. Diaz, G.R. No. L-6518, March 30,
violated; 1954).
3. Unity of criminal intent which means that
two or more violations of the same penal
provision are united on one and the same intent SECTION 14. AMENDMENT OR SUBSTITUTION
leading to the perpetration of the same criminal
purpose or claim (People of the Philippines v. An Amendment refers to a change in either the
Ledesma, G.R. No. L-41522, September 29, form or substance of the same offense in the
1976). information.
Kinds of amendment:
Principle of Absorption
1. Formal amendment – merely states with
Acts committed in furtherance of rebellion though additional precision something which is already
crimes in themselves are deemed absorbed in the contained in the original information, and which,
single crime of rebellion. The test is whether or not therefore, adds nothing essential for conviction
the act was done in furtherance of a political end. for the crime charged (Gabionza v. Court of
The political motive of the act should be Appeals, G.R. No. 140311, March 30, 2001).
conclusively demonstrated (Enrile v. Salazar, G.R. Instances when an amendment is in form:
No. 92163, June 05, 1990). a. Where it neither affects nor alters the nature
of the offense charged;
b. Where the charge does not deprive the
accused of a fair opportunity to present his

defense; defects in an information are curable by

c.Where it does not involve a change in the basic amendment prior to entry of plea. An information
theory of the prosecution (People of the which is void ab initio cannot be amended to
Philippines v. Rivera, G.R. No. L-27825, June obviate a ground for quashal. An amendment
30, 1970); which operates to vest jurisdiction upon the trial
d. Additional allegation of conspiracy is only a
court is likewise impermissible (Leviste v.
formal amendment provided that it does not
Alameda, G.R. No. 182677, August 3, 2010).
change the theory of the prosecution (Buhat v.
Court of Appeals, G.R. No. 119601, December
17, 1996).
2. Substantial amendment – consists of 2. After the plea: covers only formal
changing the recital of facts constituting the amendment provided that:
offense charged and determinative of the a. Leave of court is obtained;
jurisdiction of the court (Almenda v. Villaluz, G.R. b. Such amendment is not prejudicial to the rights
No. L-31665 August 6, 1975). of the accused.
Instances when an amendment is substantial: Note: Doctrine of supervening event - When a

fact supervenes which changes the nature of the
a. An amended information stating forth a crime charged in the information or upgrades it to
different manner of committing the felony;
a higher crime, in which case, amendment may
b. Including conspiracy where it involves a
change in the basic theory of the prosecution be made but there is a need for another
(People of the Philippines v. Zulueta, G.R. No. arraignment of the accused under the amended
L-4017, August 30, 1951); information.
c.Change in the date of the commission of the
offense that would be prejudicial to the accused
(Wong v. Yatco, G.R. No. L-9525, August 28, In People of the Philippines v. Degamo (G.R. No.
1956). 121211, April 30, 2003), an amendment due to a
supervening event is considered only as a formal
Rules on amendment amendment as it did not adversely affect any
1. Before the plea: The general rule is that substantial right of appellant.
any amendment, formal or substantial, before
the accused enters his plea may be done without
leave of court.
Test for propriety of amendment after plea: The
Exception: Any amendment before plea, which test as to whether an amendment is only of form
downgrades the nature of the offense charged or and an accused is not prejudiced by such
excludes any accused from the complaint or amendment is:
information can be made only: 1. Whether or not a defense under the
a. Upon motion by the prosecutor; information as it originally stood would be equally
b. With notice to the offended party; and available after the amendment is made, and
c.With leave of court. 2. Whether or not any evidence which the
accused might have would be equally applicable
to the information in one form as in the other;
Reason: To inform and protect the offended party
that there will be a change in favour of the
accused. If the answer is in the affirmative, the amendment is
one of form and not of substance (Teehankee, Jr.
Note: It must be clarified though that not all
v. Madayag, G.R. No. 103102, March 6, 1992).

There can be formal amendments after the formal amendments.

accused enters his plea:
Requisites for double jeopardy under Section 7,
Example of formal amendment: An information Rule 117: A previous case must be filed and must
was filed against the accused. The designated contain the following:
offense stated in the information was for the crime
1. The complaint or information or other
of homicide. However, the acts constituting the
formal charge was sufficient in form and
offense written in the information clearly depicts the substance to sustain a conviction and the court
crime of murder. The accused enters his plea of not had jurisdiction;
guilty. 2. The accused had been arraigned and the
accused had entered a valid plea; and
Can the prosecutor amend the designation of
3. There was a final judgment of conviction or
the offense and change it to Murder? Yes,
acquitted or the case was dismissed without his
because it merely involves a formal amendment. express consent;
The averments in the amended information for 4. Then a subsequent complaint or information
murder are exactly the same as those already is filed containing a crime that is: (SAF-Nis-Nid)
alleged in the original information for homicide, as a. The same offense; or
there was not at all any change in the act imputed b. An attempt to commit the said offense; or
to accused (Pacoy v. Cajigal, G.R. No. 157472, c.A frustration of the said offense; or
September 28, 2007). d. Any offense which necessarily includes the
first offense charged or
General Rule: There can be no substantial e. Any offense which necessarily included the
amendment in the information after the plea. first offense charged.
Reasons:
1. It violates the right to be informed of the Example of Substantial Amendment No. 1: The
nature and cause of the accusation against accused was charged with Robbery in an Inhabited
him as the accused should be informed during Place and then the accused entered a plea of not
his plea (People of the Philippines v. Openia, 98 guilty. During trial the prosecutor moved to
Phil 698, March 26, 1956). amendment acts constituting the offense in the
2. It violates the rule on double jeopardy as information by changing the charge to Robbery in
the previous case shall be dismissed and a an Uninhabited Place. The court dismissed the
subsequent information containing the same, original case without consent of the accused and
attempted, frustrated, necessarily includes or the prosecutor filed the amended information. Was
necessarily included offense shall be filed the substantial amendment proper?
(People of the Philippines v. Labatete, G.R. No.
L-12917, April 27, 1960; Teehankee, Jr. v. No, because it violated the rule on double jeopardy
Madayag, supra). as the new information contains the same crime.
The amendment requires a change in the defense
In a substantial amendment, the case involving the and available evidence of the accused. Also, the
original information will be dismissed because the accused are prejudiced as they are exposed to a
averments stated in the original information are higher penalty (People of the Philippines v.
insufficient to prove the guilt of the accused beyond Montenegro, G.R. No. L-45772, Mar. 25, 1988;).
reasonable doubt for the proper crime.
Exception: A substantial amendment after
If there is merely a formal amendment, even arraignment is allowed if the same is beneficial to
without such amendment, the guilt of the accused the accused (Fronda-Baggao v. People of the
for the proper crime can still be established. Thus, Philippines, G.R. No. 151785, December 10, 2007).
there is no need for the dismissal of the case in

Reason: Sec. 14, Rule 110 was crafted to enshrine the crime of libel. Will the substitution prosper?
the constitutional right to be informed of the nature Yes, because it does not violate the rule of double
of charges and to be accorded due process. The jeopardy.
rule aims to protect the accused from prejudicial
In substitution, the information containing the
machinations that changes the game in the
charge of the wrong crime should be dismissed.
midstream. In case the amendment benefited the
accused, such amendment did not prejudice him or Reason: Same as substantial amendment after
deprive him of defenses available before the plea; the allegations contained in the information
amendment. Thus, the reason for the rule was not are insufficient to establish the guilt of the accused
violated when there is a beneficial substantial due to the wrongful crime charged therein.
amendment (People of the Philippines v. Janairo,
G.R. No. 129254, July 22, 1999). Note: Section 14 applies only to original case and
not to appealed case.
Example of Substantial Amendment No. 2: The
accused was charged with Murder with the Limitation to the rule on substitution:
qualifying aggravating circumstance of treachery 1. No judgment has yet been rendered;
and entered a plea of not guilty. During the trial, it 2. The accused cannot be convicted of the
was discovered that the crime was only homicide. offense charged or of any other offense
Can the prosecutor substantially amend the necessarily included therein;
acts constituting the offense in the information 3. The accused would not be placed in double
so as to change the crime to Homicide only? jeopardy.
Yes. Though the amendment refers to the acts

constituting the offense, the change benefitted the Substitution of
accused (People of the Philippines v. Janairo, Amendment Information or
supra). Complaint
Note: In the above problem, amending the Involves the same,
information is not indispensable because, under attempted, frustrated,
Sec. 4 Rule 120, the court can render judgment to Involves different
necessarily includes
a lesser crime necessarily included in the original offenses
or necessarily
crime alleged therein and does not require a included offense
substantial amendment of the information.
May involve either Involves substantial
formal or substantial change from the
Substitution: If it appears at any time before changes. original charge.
judgment that a mistake has been made in
charging the proper offense, the court shall dismiss Substitution of
Amendment before
the original complaint or information upon the filing information must be
the plea has been
of a new one charging the proper offense, provided with leave of court as
entered can be
the accused shall not be placed in double the original
effected without leave
jeopardy. information has to be
of court.
dismissed.
Example: A was charged with robbery and then he

entered a plea of not guilty. During trial, the
prosecutor moved to substitute the information for

Amendment is only as new information charging the proper offense.

Another preliminary
to form, there is no
investigation is
need for another Note: The first and second situations are discussed
entailed and the
preliminary in Section 4, Rule 120. The third situation set forth
accused has to plead
investigation and the above is substitution of information under Section
anew to the new
retaking of the plea of 14, Rule 110.
information.
the accused.
SECTION 15. PLACE WHERE ACTION IS TO BE
An amended INSTITUTED
information refers to
the same offense Venue is jurisdictional as the court has no
charged in the original jurisdiction to try an offense committed outside its
information or to an territorial jurisdiction. It cannot be waived, or
offense which changed by agreement of the parties, or by the
Requires or consent of the defendant.
necessarily includes
presupposes that the
or is necessarily Purpose: The court should not compel the
new information
included in the original defendant to move to, and appear in a different
involves a different
charge, hence court from that of the province where the crime was
offense which does
substantial committed, as it would cause him great
not include or is not
amendments to the inconvenience in looking for his witnesses and
necessarily included in
information after the other evidence in another place (Beltran v. Ramos,
the original charge;
plea has been taken G.R. No. L-6410, November 24, 1954).
hence the accused
cannot be made over
cannot claim double General Rule: Subject to existing laws, in all
the objection of the
jeopardy.
accused, for if the criminal prosecutions, the action must be instituted
original information and tried in the courts of the municipality or territory
would be withdrawn, where the offense was committed or any of its
the accused could essential ingredients occurred (Sec 15 [a], Rule
invoke double 110) (Principle of Territoriality).
jeopardy.
Exceptions:
1. Felonies under Art. 2 of the Revised

Variance between Allegation and Proof Penal Code: Shall be cognizable by the proper
court where the criminal action was first filed
(situations contemplated)
(Section 15(d), Rule 110);
1. When the offense proved is less serious 2. Where an offense is committed on a
than, and is necessarily included in, the offense railroad train, in an aircraft, or in any other
charged, in which case the defendant shall be public or private vehicle in the course of its
convicted of the offense proved; trip: The criminal action may be instituted and
2. When the offense proved is more serious tried in the court of any municipality or territory
than and includes the offense charged, in which where such train, aircraft or other vehicle passed
case the defendant shall be convicted of the during such trip, including the place of departure
offense charged; and arrival (Section 15[b], Rule 110);
3. When the offense proved is neither included 3. Where an offense is committed on board a
in, nor does it include, the offense charged and is vessel in the course of its voyage: The criminal
different therefrom, in which case the court action may be instituted and tried in the proper
should dismiss the action and order the filing of court of the first port of entry or of any
municipality or territory through which the vessel

passed during such voyage subject to the Exceptions:

generally accepted principles of international law
(Section 15[c], Rule 110); 1. Where from the nature of the crime and the
4. Piracy: The venue of piracy, unlike all other law defining and punishing it, NO civil liability
crimes, has no territorial limits. It may be tried arises in favor of the offended party (e.g. treason,
anywhere (People of the Philippines v. Lol-lo, rebellion, espionage and contempt);
G.R. No. 17958, February 27, 1922); 2. Where the offended party has waived his
5. Libel: The action may be instituted at the right to civil indemnity;
election of the offended or suing party in the 3. Where the offended party has expressly
province or city: reserved his right to institute a separate civil
a. Where the libelous article is printed and first action; OR
published; 4. Where the offended party has already
b. If one of the offended parties is a private instituted said action.
individual, where said private individual
actually resides at the time of the commission RULE 111
of the offense; P ROSECUT ION OF C IVIL ACT IONS
c.If the offended party is a public official, where
the latter holds office at the time of the
commission of the offense. SECTION 1. INSTITUTION OF CRIMINAL AND
6. In exceptional circumstances: To ensure CIVIL ACTIONS
a fair trial and impartial inquiry. The SC shall have
the power to order a change of venue or place of General Rule: When a criminal action is instituted,
trial to avoid miscarriage of justice (Section 5[4], the civil action for the recovery of civil liability
Article VIII, 1987 Constitution); arising from the offense shall be deemed instituted
7. In cases filed under B.P. Blg. 22: The with the criminal action (Sec 1[a], Rule 111).
criminal action shall be filed in the place where
Exceptions:
the check was dishonored or issued. In case of a
crossed-check, in the place of the depositary or 1. When the offended party waives the civil
collecting bank. action;
8. Where the case is cognizable by the 2. When the offended party reserves his right
Sandiganbayan: the jurisdiction of which to institute a separate civil action;
depends upon the nature of the offense and the 3. When the offended party institutes a civil
position of the accused (Subido v. action prior to the criminal action.
Sandiganbayan, G.R. No. 122641, Jan. 20, 1997),
the offense need not be tried in the place where
the act was committed but where the court When reservation shall be made:
actually sits.
1. Before the prosecution starts to present its
evidence; and
SECTION 16. INTERVENTION OF THE 2. Under circumstances affording the offended
OFFENDED PARTY IN CRIMINAL ACTION party a reasonable opportunity to make such
reservation.
General Rule: The offended party has the right to Purpose: The same is intended to prevent double
intervene by counsel in the prosecution of the recovery (Yakult Philippines v. Court of Appeals,
criminal action, where the civil action for recovery of G.R. No. 91856, Oct. 05, 1990).
civil liability is instituted in the criminal action
pursuant to Rule 111. Instances where reservation to file the civil
action separately shall not be allowed:

1. B.P. Blg. 22 cases (Rule 111, Sec. 1 par. b); cases for actual damages, the payee uses the
2. Cases cognizable by the Sandiganbayan intimidating effect of the criminal charge to collect
(Sec. 4 of P.D. No. 1606 as amended by R.A. No. his credit gratis and sometimes, upon being paid,
8249); the trial court is not even informed thereof
3. Tax cases (Sec. 7 par. b no.1, R.A. No. (Regalado, p.349).
9282).
2. Where the amount of damages, other than
actual (moral, exemplary and other damages), is
Note: Only the civil liability arising from the crime specified in the complaint or information, the
charged (cause of action arising from delict) as a corresponding filing fees shall be paid by the
felony is now deemed instituted. offended party upon filing thereof in court;
3. Where the offended party seeks to enforce
Civil liability arising from other sources of civil liability against the accused by way of moral,
obligations (law, contract, quasi-contract and quasi nominal, temperate or exemplary damages
delict) are no longer deemed instituted like those without specifying the amount thereof in the
under Article 32, 33, 34 and 2176 of the Civil Code. complaint or information (the grant and amount
Thus, in all such cases, the prosecution of civil thereof are left to the sound discretion of the trial
action may be made independently, even without court), the filing fees thereof shall constitute a
reservation. first lien on the judgment awarding such
damages.
The appearance of the offended party in the
criminal case through a private prosecutor may not
per se be considered either as an implied election Note: Counterclaims, cross-claims, third party
to have his claim for damages determined in said complaints are not allowed in a criminal
proceedings or a waiver of his right to have it proceeding. Any claim which could have been the
determined separately (Sarmiento, Jr. v. Court of subject thereof may be litigated in a separate civil
Appeals, G.R. No. 122502, December 27, 2002). action.
If the judgment did not provide for the award of civil Reasons:
damages, the judge may be compelled by 1. The counterclaim of the accused will
MANDAMUS (Lontoc v. Jarantilla, G.R. No. 80194, unnecessarily complicate and confuse the
March 21, 1989). criminal proceedings;
Rules on filing fees of civil action deemed 2. The trial court should confine itself to the
criminal aspect and the possible civil liability of
instituted with the criminal action (Sec. 1, Rule
the accused arising out of the crime.
111):
1. No filing fees are required for amounts of

In an appeal of a criminal case, the appellate court
actual damages, except with respect to criminal
may impose additional damages or increase or
actions for violation of B.P. Blg. 22, in which case,
the offended party shall pay in full the filing fees decrease the amounts of damages upon the
based on the face value of the check as the accused-appellant. However, additional penalties
actual damages; cannot be imposed upon a co-accused who did not
appeal, but modifications of the judgment beneficial
to him are considered in his favor.
Reason for the exception of B.P. Blg. 22: The
reason for this is that dockets of courts are
clogged with B.P. 22 cases since creditors The offended party in a criminal case may appeal
virtually use the courts as collectors. Because the civil aspect despite the acquittal of the accused.
ordinarily no filling fee is charged in criminal
Where the trial court convicted the accused, but

dismissed the civil action instituted therein, the the criminal action in the court trying the criminal
offended party may appeal the dismissal to the CA. action. This is a modification of the rule on primacy
of a criminal action over civil action.
Compromise on civil aspect: The offended party

may compromise the civil aspect of a crime (Art. The consolidation must be effected in the criminal
2034, Civil Code), provided that it must be entered court, irrespective of the nature of the offense, the
before or during the litigation, and not after final amount of civil claim or the rank of the court trying
judgment. A compromise on the civil aspect is valid the civil case.
even if it turns out to be unsatisfactorily either to
one or both of the parties (Republic v.
Sandiganbayan, G.R. Nos. 108292, 108368, In cases where the consolidation is given due
108548-49, 108550, September 10, 1993). course, the evidence presented and admitted in the
civil case shall be deemed automatically
reproduced in the criminal action without prejudice
SECTION 2. WHEN SEPARATE CIVIL ACTION IS to admission of additional evidence and right to
SUSPENDED cross-examination.
Primacy of criminal action over civil action The consolidated criminal and civil cases shall be
tried and decided jointly.
1. After the filing of the criminal action, the civil
action which has been reserved cannot be
instituted until final judgment has been rendered
in the criminal action; Note: Article 29 of the Civil Code merely
2. If the civil action is instituted before the emphasizes that a civil action for damages is not
filing of the criminal action and the criminal action precluded by the acquittal of an accused for the
is subsequently commenced, the pending civil same criminal act or omission. It does not state that
action shall be suspended in whatever stage it the remedy can be availed of only in a separate
may be found until final judgment in the criminal civil action.
action has been rendered.
Exceptions: Acquittal in a criminal case does not bar the

filing of the civil case:
1. In cases of independent civil actions based
upon Arts. 32, 33, 34 and 2176 of the Civil Code;
2. In cases where the civil action presents a
prejudicial question; Note: Extinction of the penal action does not carry
3. In cases where the civil action is with it the extinction of the civil action, unless the
consolidated with the criminal action; and, extinction proceeds from a declaration in a final
4. Where the civil action is not one intended to judgment that the fact from which the civil liability
enforce the civil liability arising from the offense. might arise did not exist.
Consolidation of criminal and civil cases: Under

the present rule, before judgment on the merits is The extinction of the civil liability refers exclusively
rendered in the civil action, the same may, upon to civil liability arising from crime (delict); whereas,
motion of the offended party, be consolidated with the civil liability for the same act arising from other

sources of obligation (law, contract, quasi-contract, 3. The civil liability is not derived from or based
quasi-delict) is not extinguished even by a on the criminal act of which the accused is
declaration in the criminal case that the criminal acquitted (Sapiera v. Court of Appeals, G.R. No.
act charged has not happened or has not been 128927, September 14, 1999).
committed by the accused. 4. The statute declares that there can be no
criminal liability but only civil liability (e.g. Article
332, RPC - theft, estafa or malicious mischief
committed by a family member)
Where the criminal case was dismissed before trial 5. Article 11(4) RPC – Justifying circumstance
because the offended party executed an affidavit of 6. Article 12(1,2,3,5,6) RPC – Some
desistance, the civil action thereof is similarly exempting circumstances.
dismissed.
SECTION 3. WHEN CIVIL ACTION MAY
PROCEED INDEPENDENTLY
Enforcement of employer’s civil liability: The
employer may not be held civilly liable for the quasi- The institution of an independent civil action against
delict since it is not deemed instituted with the the offender under Articles 32, 33, 34 and 2176 of
criminal action. If at all, the only civil liability of the the Civil Code may proceed independently of the
employer would be his subsidiary liability under the criminal case and at the same time without
Revised Penal Code. Noteworthy is the fact that the suspension of either proceeding. The independent
subsidiary liability established in Articles 102 and civil action requires only a preponderance of
103 of the Revised Penal Code may be enforced in evidence and the offended party may be entitled
the same criminal case by filing in said criminal only to the bigger award when the awards made in
action a motion for execution against the person the cases vary (Ace Haulers Corp. v. Court of
subsidiarily liable (Maniago v. Court of Appeals, Appeals, G.R. No. 127934, August 23, 2000).
G.R. No. 104392, Feb. 20, 1996).
Recovery of civil liability under Articles 32, 33, 34

Instances when the extinguishment of the and 2176 of the Civil Code arising from the same
criminal liability results in the extinguishment act or omission may be prosecuted separately
of the civil liability: even without a reservation.
1. The court declares that the accused was
innocent
2. The acts or omissions giving rise to the civil Reason: The enactment of Article 32, 33, 34 and
liability in the criminal action does not exist 2176 implies that the State has already made a
3. Death of the accused reservation in favor of the offended party
Instances when the extinguishment of the criminal

Purposes of Articles 32, 33, 34 and 2176:
liability does not result in the extinguishment of
the civil liability 1. To prevent subtle or indirect violation of the
constitutional rights due to the lack of penal laws
1. The acquittal is based on reasonable doubt, as not all unconstitutional acts are punishable
if the civil case has been reserved;
2. The prosecutor may be afraid or
2. The decision contains a declaration that the
incompetent to establish the guilt of the accused
liability of the accused is not criminal but only civil
beyond reasonable doubt
in nature; and 3. Criminal cases are difficult to prove and
these independent civil actions can be the

reparation to harm done to the offended party SECTION 6. SUSPENSION BY REASON OF

(Manuel R. Pamaran, Revised Rules of Criminal PREJUDICIAL QUESTION
Procedure Annotated, 2010 revised ed. pp. 191-
192). SECTION 7. ELEMENTS OF PREJUDICIAL
QUESTION
SECTION 4. EFFECT OF DEATH ON CIVIL

ACTIONS
Prejudicial Question
1. If the accused dies before arraignment, the
case shall be dismissed without prejudice to any One which arises in a case, the resolution of which
civil action the offended party may file against the is a logical antecedent of the issue involved therein
estate of the accused (Limjoco v. Intestate Estate and the cognizance of which pertains to another
of Fragante, G.R. No. L-770, April 27, 1948); tribunal (Agpalo, p.137).
2. If the accused dies after arraignment during 1. A prejudicial question is based on a fact
the pendency of the criminal action, the civil distinct and separate from the crime but so
liability arising from the delict shall be
intimately connected with it that it determines the
extinguished (Art. 89 [i], RPC);
guilt or innocence of the accused.
2. Time to plead: The prejudicial question
Exceptions: may be raised during the preliminary investigation
of the offense or in court before the prosecution
a. Where the civil liability is predicated on rests its case.
other sources of obligations such as law, 3. The suspension of the criminal case due to
contract, quasi-contract and quasi-delict, or is a prejudicial question is only a procedural matter,
an independent civil action. The action may be and is subject to a waiver by virtue of prior acts of
continued against the estate of the accused the accused.
after proper substitution is made either as to the 4. There is no prejudicial question where one
relatives or the estate. case is administrative and the other is civil.
b. If the civil action has been reserved and 5. If the two cases are both civil or if they are
subsequently filed or such civil action has both criminal, the principle finds no application.
been instituted when the accused died, such
civil action will proceed and substitution of
parties shall be ordered by the court Ratio: To avoid two conflicting decisions (Te v.
3. If the accused dies during appeal, his civil Court of Appeals, G.R. No. 126746, November 29,
and criminal liabilities are extinguished (People of 2000).
the Philippines of the Philippines v. Alison, G.R.
No. L-30612, May 3, 1983);
4. If the accused dies after final judgment, the Elements of a prejudicial question
pecuniary liabilities of the accused are not
extinguished. Claims shall be filed against the 1. The civil action must be instituted prior to
estate of the accused under Rule 86 of the Rules the criminal action;
of Court. 2. The civil action involves an issue similar or
intimately related to the issue raised in the
subsequent criminal action;
SECTION 5. JUDGMENT IN CIVIL ACTION NOT 3. The resolution of such issue determines
A BAR whether or not the criminal action may proceed.
The judgment in civil actions based on Articles 32,
33, 34 and 2176 absolving the defendant from civil Test to determine existence of a prejudicial
liability does not bar the criminal action. question: To determine the existence of a

prejudicial question, it must appear that the civil and that the respondent is probably guilty thereof,
case does not only involve the same facts upon and should be held for trial.
which the criminal prosecution is based but also
that the resolution of the issues raised in said civil
action would necessary be determinative of the Preliminary investigation is merely inquisitorial. The
guilt or innocence of the accused (Yap v. Paras, presence of the accused or the offended party is
G.R. No. 101236, January 30, 1992) not mandatory in the investigation.
Illustration: General Rule: Preliminary Investigation is

required to be conducted before the filing of a
James is married to Kris. During the existence of
complaint or information for an offense where the
this marriage, James married Vicky. However,
James filed a case for annulment of his marriage penalty prescribed by law is at least 4 years, 2
with Vicky on the ground that he was merely forced months and 1 day (PC Med) without regard to the
fine.
by Vicky to marry her. Kris then filed a case for
bigamy against James. Here, there exists a
prejudicial question in the civil action for annulment.
If the annulment case succeeds, James has no Exception: There is no right of preliminary
second marriage to under which he could be investigation under Section 7, Rule 112 (now Sec 6
charged with bigamy. The decision in the civil under the SC circular) when a person is lawfully
action must be awaited first and the criminal case, arrested without a warrant except in cases provided
upon motion, must be suspended. The guilt or under Section 6, Rule 112.
innocence of the accused will be dependent upon
the decision of the civil action.
Instances when preliminary investigation may
be asked by the accused:
Where to file petition for suspension by reason 1. If a person is arrested, he can ask for a
of prejudicial question preliminary investigation before the filing of the
1. Office of the prosecutor; or complaint/information but he must sign a waiver
2. Court where the criminal action has been in accordance with Article 125, RPC;
2. After the filing of the information/complaint,
filed for trial at any time before the prosecution
rests. the accused may, within 5 days from the time he
learns of its filing ask for preliminary investigation.
RULE 112
Purposes of preliminary investigation:
P RELIM INARY I NVEST IGAT ION
1. For the investigating prosecutor to
SECTION 1. PRELIMINARY INVESTIGATION determine if a crime has been committed
DEFINED; WHEN REQUIRED (Mercado v. Court of Appeals, G.R. No. 109036,
July 5, 1995);
2. To protect the accused from the
inconvenience, expense and burden of defending
Preliminary Investigation himself in a formal trial unless the reasonable
An inquiry or proceeding to determine whether probability of his guilt shall have been first
ascertained in a fairly summary proceeding by a
there exists sufficient ground to engender a well-
competent officer;
founded belief that a crime has been committed

3. To secure the innocent against hasty, If an objection was raised, the court, instead of
malicious and oppressive prosecution and to dismissing the complaint or information, should
protect him from an open and public accusation order the fiscal to conduct it (Doromal v.
of a crime, from the trouble, expenses and Sandiganbayan, G.R. No. 85468, Sept. 07, 1989).
anxiety of a public trial (Rodis v. Sandiganbayan,
G.R. Nos. 71404-09, October 26, 1988);
4. To protect the state from having to conduct
useless and expensive trials (Tandoc v. Resultan, Remedies of the accused if there was no
G.R. No. L-69210, July 5, 1989). preliminary investigation
1. Refuse to enter a plea upon arraignment
Preliminary investigation: a personal statutory and object to further proceedings upon such
right ground;
2. Insist on a preliminary investigation;
The right to preliminary investigation is a personal 3. File a certiorari, if refused;
right covered by statute and may be waived 4. Raise lack of preliminary investigation as
expressly or by implication. It is not merely error on appeal (United States v. Banzuela, G.R.
procedural but a substantive right included in the No. 10172,October 1, 1915);
due process of law (Go v. Court of Appeals, G.R. 5. File for prohibition (Conde v. CFI, G.R. No.
L-21236, October 1, 1923);
No. 101837, Feb. 11, 1992).
Note: As preliminary investigation is not part of the

The right to preliminary investigation is deemed trial, the dismissal of the case by the investigator
waived by: will not constitute double jeopardy and will not bar
the filing of another complaint for the same offense,
1. Failure to claim it before the accused
but if re-filed, the accused is entitled to another
pleaded;
preliminary investigation.
2. His silence;
3. Failure to request it within 5 days from the
time he learns of the filing of the complaint or
information, in those instances where the Due process of law demands that no substantial
accused is lawfully arrested without a warrant. amendment of an information may be admitted
without conducting another or a new preliminary
investigation (Matalam v. Sandiganbayan, G.R. No.
The absence of preliminary investigation does not 165751, April 12, 2005).
affect the court's jurisdiction over the case. Nor
does it impair the validity of the information or
otherwise render it defective, but, if there were no
SECTION 2. OFFICERS AUTHORIZED TO
preliminary investigations and the defendants,
CONDUCT PRELIMINARY INVESTIGATION
before entering their plea, invite the attention of the
court to their absence, the court, instead of Persons authorized to conduct a Preliminary
dismissing the Information, should conduct such Investigation:
investigation, order the fiscal to conduct it or
remand the case to the inferior court so that the 1. Provincial or city fiscal and their assistants;
preliminary investigation may be conducted 2. National and regional state prosecutors; and
3. Such other officers as may be authorized by
(Sanciangco v. People of the Philippines, G.R. No.
law such as: the COMELEC, Ombudsman and
72830, March 24, 1987).
PCGG.

Their authority to conduct preliminary investigation

shall include all crimes cognizable by the proper
court in their respective territorial jurisdiction. Ombudsman’s jurisdiction in preliminary
investigation
1. If the preliminary investigation shall be

Regarding offenses falling within the original conducted for a crime cognizable in
jurisdiction of the Sandiganbayan: The Sandiganbayan, the Ombudsman has primary
preliminary investigation of cases falling under the jurisdiction. Thus, the Ombudsman can over
jurisdiction of the Sandiganbayan shall be take any preliminary investigation being
performed in such manner
conducted in the manner prescribed in Section 3,
2. If the preliminary investigation is conducted
Rule 112 of the Rules of Court. Upon the
for a crime cognizable in any court other than the
termination of the preliminary investigation, the Sandiganbayan, the Ombudsman only has
investigating officer shall forward the records of the concurrent jurisdiction. Thus, if the Department
case together with his resolution to the designated of Justice is already performing the preliminary
authorities for their appropriate action thereon. investigation, the Ombudsman cannot take over
the investigation.
3. If preliminary investigation is finished and
No information may be filed and no complaint may the case is filed in court, the Ombudsman now
be dismissed without the written authority or has exclusive jurisdiction to prosecute the case
approval of the Ombudsman in cases falling within The Ombudsman does not have the following
powers:
the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases (Sec. 1. To prosecute before the Sandiganbayan
4, Rule 2, Rules of Procedure of the Office of the any impeachable officers with any offense which
Ombudsman). carries with it the penalty of removal from office,
or any penalty service of which would amount to
removal from office because by constitutional
Authority of COMELEC: The 1987 Constitution mandate, they can only be removed from office
on impeachment for, and conviction of, culpable
mandates the COMELEC not only to investigate but
violation of the Constitution, treason, bribery, graft
also to prosecute cases of violation of election
and corruption, other high crimes, or betrayal of
laws. This authority is exclusive but it may deputize public trust.
other officials to conduct the investigation and the 2. To prosecute public officers or employees
prosecution (People of the Philippines v. Basilla, who have committed election offenses.
G.R. Nos. 83938-40, Nov. 06, 19897). 3. To file an information for an offense
cognizable by the regular courts.
Authority of the Ombudsman: The power of the

Authority of the PCGG: The PCGG has the power
Ombudsman to make investigation extends to any
to investigate and prosecute such ill-gotten wealth
illegal act or omission of any public official, whether
cases of former President Marcos, his relatives and
or not the same is committed in relation to his
associates, and graft and corrupt practices cases
office. This however does not include administrative
that may be assigned by the President to the
cases of court personnel because the 1987
PCGG to be filed with the Sandiganbayan (Zaldivar
Constitution exclusively vests in the Supreme Court
v. Sandiganbayan, G.R. Nos. 79690-79707, April
administrative supervision over all courts and court 27, 1988).
personnel (Maceda v. Vasquez, G.R. No. 102781,
Apr. 22, 1993).

Effects of an incomplete Preliminary

Investigation: I. Filing of the complaint accompanied by the affidavits
and supporting documents which must be executed
1. It does not warrant the quashal of the under oath.
information.
2. It does not affect the court’s jurisdiction or II. Within 10 days after the filing, investigating officer
the validity of the information. shall either dismiss or issue subpoena
Note: The court can compel the prosecutor by III. If subpoena is issued, respondent shall submit a
mandamus to conduct a preliminary counter-affidavit and other supporting documents
investigation as it his ministerial duty. However, within 10 days from receipt thereof.
the court cannot compel the prosecutor by
mandamus in the determination probable cause
IV. Clarificatory Hearing (optional). It shall be held
during a preliminary investigation as that is his within 10 days from submission of counter-affidavits
discretionary duty (Angchangco v. Ombudsman, or from the expiration of the period of their
G.R. No. 122728, February 13, 1997). submission.
V. Resolution of investigating prosecutor within 10 days

SECTION 3. PROCEDURE after the investigation.
Ten (10) Steps of the Preliminary Investigation.
VI. If no probable cause VI. If there is probable
(Step 1 to 5 – Section 3; Step 6 to 9 – Section 4;
exists, issue cause to hold
Step 10 – Section 5)
recommendation of respondent for trial,
The complaint is required to be sworn under oath dismissal of the case. prepare resolution
so that the complainant can be held liable for and information.
perjury if the situation arose.
VII. Within 5 days from resolution or recommendation of
If respondent cannot be subpoenaed, or if
dismissal, forward the record of the case to (1)
subpoenaed but does not submit his counter-
Provincial or city prosecutor; (2) Chief state
affidavit within 10 days, the investigating officer
prosecutor; or (3) Ombudsman or his deputy, in
shall resolve the complaint based on the evidence
cases cognizable by the Sandiganbayan in the
presented by the complainant.
exercise of its original jurisdiction. They shall act on
Note: The respondent shall not be allowed to file a the resolution or recommendation of dismissal within
motion to dismiss in lieu of a counter-affidavit. The 10 days from their receipt thereof and shall
respondent also has no right to cross-examine the immediately inform the parties of such action.
witnesses which the complainant may present
since this is not part of the trial. VIII. Aggrieved party from the decision of the superior
officer may file a petition for review to the DOJ.
IX. Information is filed in court if there is probable cause
X. The court will determine whether there is probable

cause for the issuance for the warrant of arrest (not
technically part of PI).

Rights of the respondent during Preliminary dismissed by an investigating prosecutor without

Investigation (SENS-C2R2-BQ) the prior written authority or approval of the
provincial or city prosecutor or chief state
1. Right to speedy trial
prosecutor or the Ombudsman or his deputy.
2. Right to be notified of the allegations
against him
3. Right to examine the evidence presented in
the investigation Effects of exclusion of other persons from the
4. Right to submit his own evidence information:
5. Right to file counter-affidavit to controvert
the allegations against him 1. If during the trial, evidence is shown that
6. Opportunity to be present in the Clarificatory such persons should have been charged, the fact
Hearing that they were not included in the information
7. Right to file a motion for reinvestigation does not relieve them of criminal liability, and they
8. Right to file a Petition for Review can be subsequently prosecuted.
9. Right to file a Motion to Quash 2. The accused who has been charged with
10. Right to Post Bail the offense is not allowed to escape punishment
merely because it develops in the course of the
trial that there were other guilty participants in the
The Rules do not require the presence of the crime.
respondent in the Preliminary Investigation, what is 3. It does not vitiate the validity of the
required is that he be given the opportunity to information. Neither is the same a ground for a
controvert the evidence of the complainant by motion to quash.
submitting counter-affidavits (Mercado v. Court of
Appeals, G.R. No. 109036, July 5, 1995). Effect if the Information is filed by someone not
authorized by law: Lack of authority on the part of
the filing officer prevents the court from acquiring
SECTION 4. RESOLUTION OF INVESTIGATING jurisdiction over the case. An infirmity in the
PROSECUTOR AND ITS REVIEW information, such as lack of authority of the officer
signing it, cannot be cured by silence,
If the investigating prosecutor finds cause to hold
acquiescence, or even by express consent (People
the respondent for trial, he shall prepare the
of the Philippines v. Garfin G.R. No, 153176, March
resolution and information.
29, 2004).
Note: He shall certify under oath in the information

Under Rule 117, Sec. 3(d), the accused may move
that:
to quash the complaint or information on the ground
1. He or an authorized officer personally examined that the officer who filed the information had no
the complainant and his witnesses; authority to do so.
2. There is reasonable ground to believe that a
crime has been committed and the accused is
probably guilty thereof; Determination of assistant fiscal or state
3. The accused was informed of the complaint and
prosecutor: The determination made by the
of the evidence against him; and
4. He was given an opportunity to submit assistant fiscal or state prosecutor in his resolution
controverting evidence. is at best recommendatory. Their findings may be
reversed or modified by the provincial or city fiscal.
No complaint or information may be filed or

Where the investigating prosecutor recommends whether or not to suspend the proceedings or the
the dismissal of the case but his findings are implementation of the warrant of arrest, upon the
reversed by the provincial or city prosecutor on the motion of the appellant or the trial prosecutor,
ground that a probable cause exists, the provincial remains unhindered (Viudez II v. Court of Appeals,
or city prosecutor may himself file or direct another G.R. No. 152889, June 5, 2009).
assistant prosecutor to file the corresponding
information, without need of another preliminary
investigation. The Secretary may:
a. Order for the reinvestigation of the case
(Sec. 11);
Appeal to the Secretary of Justice (DOJ Circular
b. Reverse, Modify or Affirm the appealed
No. 70 dated July 3, 2000) resolution (Sec. 12);
c.Act on a Motion for Reconsideration (Sec. 13)
An aggrieved party may appeal by filing a verified

petition for review with the Secretary of Justice, and Note: In the case of Roberts, Jr. v. Court of
by furnishing copies thereof to the adverse party Appeals (G.R. No. 113930, March 5, 1996), the
and the Prosecution Office issuing the appealed Supreme Court emphasized that Crespo v. Mogul
resolution (Section 4). (G.R. No. l-53373, June 30, 1987) “merely advised
the DOJ to, ‘as far as practicable, refrain from
entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or
The appeal shall be taken within 15 days from
information has already been filed in Court.’”
receipt of the resolution, or of the denial of the
Furthermore, allowing the DOJ to take cognizance
motion for reconsideration or reinvestigation if one
of the appeal on the resolution does not undermine
has been filed within 15 days from receipt of the
the independence and integrity of the court where
assailed resolution. Only one motion for
the information has been filed. The real and
reconsideration shall be allowed (Sec. 3).
ultimate test of the independence and integrity of
this court is not the filing of the motions to suspend
proceedings and to defer arraignment at that stage
Unless the Secretary directs otherwise, the appeal of the proceedings but the filing of a motion to
shall not stay the filing of the corresponding dismiss or to withdraw the information on the basis
information in court on the basis of the finding of of a resolution of the petition for review reversing
probable cause in the appealed resolution. the appealed resolution.
Guidelines when a the Petition for Review was
granted by the DOJ
The appellant and the trial prosecutor shall see to it
that, pending resolution of the appeal, the 1. If the case is not yet filed in the court, the
proceedings in court are held in abeyance (Sec. 9). DOJ can order the prosecutor to either file or
refrain from filing the case. In this instance, the
Note: Par. 2, Sec. 9 of the said circular is directed
court has no discretion on the acts of the
specifically at the appellant and the trial prosecutor, prosecutor. Reason: There is no case filed in
giving them latitude in choosing a remedy to ensure court.
that the proceedings in court are held in abeyance. 2. If the case is already filed in court, the
However, nowhere in the said provision does it DOJ must order the prosecutor to file for a
state that the court must hold the proceedings in petition to dismiss in court. However, it shall be in
abeyance. Therefore, the discretion of the court the discretion of the court whether or not to grant

the petition to dismiss (Roberts, Jr. v. Court of 2. When the decision or orders of the
Appeals, supra; Crespo v. Mogul, supra.) Ombudsman in administrative disciplinary
measures is questioned, the appeal must be:
a. Petition for Review under Rule 43
In relation to the Roberts, Jr. case, it is important to b. Filed in the Court of Appeals (Ruivivar v.
consider the existing relevant rules: Ombudsman, G.R. No. 165012, September 16,
2008)
1. Where the information was already filed in court
but the accused filed a petition for review of the
findings of the investigating prosecutors with the Conduct of Preliminary Investigation removed
DOJ, the court is bound to suspend the from judges of First Level Courts (A.M. No. 05-
arraignment of the accused for a period not 8-26)
exceeding 60 days (Sec. 11, Rule 116).
2. If an information has been filed in court pursuant Section 5 of the Rules of Court was deleted by AM
to the appealed resolution, a copy of the motion 05-8-26-SC
to defer proceedings filed in court must also
accompany the petition (Par. 3, Sec. 5, DOJ Note: The following is the new Section 5. (Section
Circular No. 70 dated July 3, 2000). 6 is the same as Section 5)
3. If an information has been filed in court pursuant
to the appealed resolution, the petition shall not SECTION 5. WHEN WARRANT OF ARREST MAY
be given due course if the accused had ISSUE
already been arraigned. Any arraignment made Probable Cause
after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of Presupposes a reasonable ground for belief in the
review (Sec. 7 DOJ Circular No. 70 dated July 3, existence of facts warranting the proceedings
2000). complained of.
An apparent state of facts found to exist upon
Appeal to the Ombudsman: The Ombudsman
reasonable inquiry which would induce a
has the authority to reverse or modify the resolution reasonably intelligent and prudent man to believe
of the officers of the Office of the Ombudsman. He that the accused person had committed the crime
may direct the officer concerned either: charged.
1. To file the corresponding information without If the judge finds probable cause, he shall issue a
conducting another preliminary investigation, or
warrant of arrest, or a commitment order if the
2. To dismiss or move for dismissal of the complaint
or information with notice to the parties. accused had already been arrested and hold him
for trial. If the judge is satisfied that there is no
necessity for placing the accused under custody,
Where to appeal the decisions of the he may issue summons instead of a warrant of
Ombudsman arrest.
1. When the criminal cases or preliminary
investigation handled by the Ombudsman is
tainted with grave abuse of discretion, the appeal Judges of Regional Trial Courts and inferior courts
should be: need not personally examine the complainant and
a. Extraordinary remedy of certiorari under witnesses in the determination of probable cause
Rule 65 for the issuance of the warrant of arrest (Soliven v.
b. Filed in the Supreme Court (De Chavez v. Makasiar, G.R. No. L-82585, November 14, 1988).
Ombudsman, G.R. Nos. 168830-31 February
6, 2007)

In contrast to the above-cited rule, the The executive determination of probable cause
determination of probable cause for the issuance of is one made during preliminary investigation. It is a
a search warrant requires that the judge function that properly pertains to the public
personally examine the complainant and witnesses. prosecutor who is given a broad discretion to
determine whether probable cause exists and to
Reason: In a search warrant, there is no previous
charge those whom he believes to have committed
preliminary investigation conducted by the the crime as defined by law and thus should be
prosecutor in order to assist him in determining held for trial.
probable cause.
Procedure
Otherwise stated, such official has the quasi-judicial
Within 10 days authority to determine whether or not a criminal
from filing, the
Judge must case must be filed in court.
Dismiss personally Issue
case if determine the Warrant of
record existence of Arrest (or a
clearly fails probable Commitment Whether that function has been correctly
to establish cause. Order) if
probable discharged by the public prosecutor, i.e., whether
probable
cause. cause he has made a correct ascertainment of the
In case of
exists. existence of probable cause in a case, is a matter
doubt, Judge that the trial court itself does not and may not be
may order compelled to pass upon.
prosecutor to
present
additional
evidence within The judicial determination of probable cause is
five (5) days. one made by the judge to ascertain whether a
warrant of arrest should be issued against the
accused. The judge must satisfy himself that
based on the evidence submitted, there is
Within 30 days
from filing of necessity for placing the accused under custody in
complaint or order not to frustrate the ends of justice. If the
information, judge finds no probable cause, the judge cannot be
Court must
resolve issue. forced to issue the arrest warrant (Leviste v. Hon.
Alameda, G.R. No. 182677, August 3, 2010).
While the judge may rely on the fiscal’s certification

thereof, the same is not conclusive on him as the Outright dismissal: The absence of probable
issuance of said warrant calls for the exercise of cause for the immediate issuance of a warrant of
judicial discretion and, for that purpose, the judge arrest is not a ground for the quashal of the
may require the submission of affidavits of information but is a ground for the dismissal of the
witnesses to aid him in arriving at the proper case under Section 5(6), Rule 112 which is without
conclusion, or he may require the fiscal to conduct prejudice. The trial court is mandated to
further preliminary investigation or reinvestigation. immediately dismiss the case upon finding that no
probable cause exists to issue a warrant of arrest
and after having evaluated the resolution of the
Determination of probable cause: prosecutor fiscal and supporting information (People of the
vs. judge

Philippines v. Sandiganbayan, G.R. No. 114159, he is satisfied that there is no necessity for
September 29, 2004) placing the accused under custody.
Remedy of the accused who believes that there

If the judge clearly fails to determine probable is no probable cause to hold him for trial:
cause to support the issuance of a warrant of
arrest, he may immediately dismiss the case 1. To file with the trial court a motion to
(Pamaran. p.234). dismiss on such ground or for the determination
of probable cause.
2. If the warrant of arrest has been issued, the
accused may file a motion to quash the warrant of
The consequence of the refusal of the prosecutor to arrest or to recall the same on the ground of lack
present additional evidence when the judge of probable cause.
requests such would be the dismissal of the case
as there is insufficient evidence to find probable
cause in the issuance of the warrant of arrest. Reinvestigation: Once the complaint or
information is filed in court, any motion for
reinvestigation is addressed to the sound discretion
of the court.
It is not the duty of the prosecutor to assist the
judge in determining the probable cause in the
issuance of the warrant of arrest as that duty is
solely of the judge. While the trial court judge has the power to order
the reinvestigation of the case by the prosecutor,
he may not, before the prosecutor concludes the
The judge is not required to read the entire reinvestigation, recall said order, set the case for
records of the case to determine probable arraignment and trial, without gravely abusing his
discretion.
cause: It is not required that the complete or entire
records of the case during the preliminary
investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial Municipal judge may issue arrest warrant
courts by obliging them to examine the complete before conclusion of Preliminary Investigation if:
records of every case all the time simply for the 1. He finds that probable cause exists and
purpose of ordering the arrest of the accused (Ho v. 2. There is a necessity of placing respondent
People of the Philippines, G.R. No. 106632, under immediate custody.
October 9, 1997).
Note: The rule is now that the investigating judge’s

power to order the arrest of the accused is limited
Instances when a Warrant of Arrest is NOT
necessary (Sec. 9(c), Rule 112): to instances in which there is a necessity for
placing him in custody in order not to frustrate
1. If the complaint or information was filed after the ends of justice (Flores v. Judge Sumaljag,
the accused was lawfully arrested without A.M. No. MTJ-97-1115. June 5, 1998). Thus, even
warrant; if the judge finds probable cause, he cannot, on
2. If the offense is punishable by fine only; such ground alone, issue a warrant of arrest. He
3. If the complaint or information is filed with must further find there is a necessity of placing the
the MTC and it involves an offense which does accused under immediate custody in order not to
not require preliminary investigation, the judge frustrate the ends of justice.
may issue summons instead of warrant of arrest if

The investigating judge has no power to reduce or 1. Crime punishable by light penalties: within
change the crime charged in order to justify the 12 hours
grant of bail to the accused. That power belongs to 2. Crime punishable by correctional penalty:
the prosecutor (Cabarloc v. Judge Cabusora, A.M. within 18 hours
No. MTJ-00-1256. December 15, 2000). 3. Crime punishable by afflictive or capital
punishment: within 36 hours
SECTION 6. WHEN ACCUSED LAWFULLY Two situations contemplated under this

ARRESTED WITHOUT WARRANT section:
Inquest 1. When a person is lawfully arrested without a

warrant for an offense requiring a preliminary
An informal and summary investigation conducted investigation (Sec. 1, Rule 112) and no complaint
by a public prosecutor in criminal cases involving or information has yet been filed, he may ask for
persons arrested and detained without the benefit a preliminary investigation by signing a waiver of
of a warrant of arrest issued by the court for the the provisions of Art. 125 of the RPC in the
purpose of determining whether or not said persons presence of his counsel;
should remain under custody and correspondingly 2. When the complaint or information was filed
be charged in court (DOJ Circular No. 61, without preliminary investigation, the accused
September 21, 1993). may, within 5 days from the time he learns of the
filing of the information, ask for a preliminary
investigation with the same right to adduce
Receipt by the Inquest Officer of referral documents evidence in his favor in the manner prescribed in
this Rule.
Arrest not properly Arrest properly effected

effected Note: The five-day (5-day) period is mandatory.
Failure to file the motion within the said period
A preliminary amounts to waiver of the right to ask for preliminary
Release shall be investigation may be investigation (People of the Philippines v. Figueroa,
recommended conducted if requested. G.R. No. L-24273, April 30, 1969).
If evidence does not Otherwise, inquest

warrant the conduct of proper Where the information was amended without a new
preliminary investigation, preliminary investigation having been conducted,
the detained person shall the 5-day period is computed from the time the
Determination of
be released otherwise, a accused learns of the filing of the amended
probable cause information.
preliminary investigation
shall be conducted.
If there’s probable cause,
information shall be filed; Where the trial court has granted a motion for
otherwise, release shall reinvestigation, it must hold in abeyance the
be recommended. arraignment and trial of the accused until the
prosecutor shall have conducted and made a report
on the result of such reinvestigation.
Inquest proceedings must be terminated within the
period prescribed under the provisions of Article
125 of the Revised Penal Code, as amended.

Note: The rule in Sec. 6 does not apply if the The police or law enforcement personnel
person is NOT lawfully arrested without a warrant concerned shall, before detaining the person
(Go v. Court of Appeals, G.R. No. 101837, suspected of the crime of terrorism, present him or
February 11, 1992). her before any judge at the latter’s residence or
office nearest the place where the arrest took place
at any time of the day or night.
Right to bail pending preliminary investigation:
A person lawfully arrested may post bail before the
filing of the information or even after its filing It shall be the duty of the judge, among other
without waiving his right to preliminary things, to ascertain the identity of the police or law
investigation, provided that he asks for a enforcement personnel and the person or persons
preliminary investigation by the proper officer within they have arrested and presented before him or
the period fixed in the said rule (People of the her, to inquire of them the reasons why they have
Philippines v. Court of Appeals, May 29, 1995). arrested the person and determine by questioning
and personal observation whether or not the
suspect has been subjected to any physical, moral
or psychological torture by whom and why.
R.A. NO . 9372
HUM AN S ECURIT Y ACT OF 2007 The judge shall then submit a written report of what
he/she had observed when the subject was brought
SEC. 18. PERIOD OF DETENTION WITHOUT before him to the proper court that has jurisdiction
JUDICIAL WARRANT OF ARREST over the case of the person thus arrested. The
The provisions of Article 125 of the Revised Penal judge shall forthwith submit his/her report within
Code to the contrary notwithstanding, any police or three (3) calendar days from the time the suspect
was brought to his/her residence or office.
law enforcement personnel, who, having been duly
authorized in writing by the Anti-Terrorism Council
has taken custody of a person charged with or
suspected of the crime of terrorism or the crime of Immediately after taking custody of a person
conspiracy to commit terrorism shall, without charged with or suspected of the crime of terrorism
incurring any criminal liability for delay in the or conspiracy to commit terrorism, the police or law
delivery of detained persons to the proper judicial enforcement personnel shall notify in writing the
authorities, deliver said charged or suspected judge of the court nearest the place of
person to the proper judicial authority within a apprehension or arrest: Provided, That where the
period of three (3) days counted from the moment arrest is made during Saturdays, Sundays, holidays
the said charged or suspected person has been or after office hours, the written notice shall be
apprehended or arrested, detained, and taken into served at the residence of the judge nearest the
custody by the said police, or law enforcement place where the accused was arrested.
personnel.
The penalty of ten (10) years and one day to twelve

Provided, That the arrest of those suspected of the (12) years of imprisonment shall be imposed upon
crime of terrorism or conspiracy to commit terrorism the police or law enforcement personnel who will
must result from the surveillance under Section 7 fail to notify any judge.
and examination of bank deposits under Section 27
of this Act.

SECTION 7. RECORDS
An information or complaint filed in court shall be If the complaint is filed with the MTC, the same
supported by the affidavits and counter-affidavits of procedure under Rule 112, Section 3 (a) shall be
the parties and their witnesses, together with the observed.
other supporting evidence and the resolution on the
If the Complaint or Information is filed with the
case.
MTC:
1. Sec 3a of this rule must be followed.

Records of the preliminary investigation shall not 2. The judge shall personally evaluate the
automatically form part of the records of the case. evidence, or personally examine, in writing and
Courts are not compelled to take judicial notice under oath, the complainant and his witnesses in
thereof. It must be introduced as evidence. the form of searching questions.
3. The judge shall act on it within 10 days after
the filing of the complaint or information:
SECTION 8. CASES NOT REQUIRING A

PRELIMINARY INVESTIGATION NOR COVERED If in doubt, may require submission of additional
BY THE RULE ON SUMMARY PROCEDURE evidence.
If filed with the Prosecutor (same with Sec. 3 (a)

of this rule):
If probable cause does not exist, dismiss complaint
1. The complaint shall state the known or information.
address of the respondent;
2. It shall be accompanied by affidavits of the
complainant and his witnesses as well as other If it exists, issue warrant of arrest or commitment
supporting documents to establish probable order if already arrested.
cause;
3. The affidavits shall be executed under oath;
4. They shall be in such number of copies as
there are respondents, plus two copies for the May issue summons instead of warrant of arrest if
official file. judge is satisfied that there is no necessity for
5. Within 10 days from filing, the prosecutor placing the accused under custody.
shall take appropriate action without any further
investigation since this refers to cases not entitled
to preliminary investigation. Conditions that must concur for the issuance of
warrant of arrest
Note: For cases under the Revised Rules on
1. Must personally evaluate the report and
Summary Procedure, no warrant shall be issued supporting documents submitted by the fiscal
except where the accused fails to appear after regarding the existence of probable cause;
being summoned. 2. If on the basis thereof, he finds no probable
cause, he may disregard the report and require
the submission of supporting affidavits of
If the complaint is filed with the prosecutor involving witnesses to aid him in arriving at a conclusion as
an offense punishable by imprisonment of less than to the existence of probable cause.
4 years, 2 months and 1 day, the procedure in Rule 3. Must personally be satisfied that a probable
112, Section 3 (a) shall be observed. cause exists (Soliven v. Makasiar, G.R. No. L-
82585, November 14, 1988).

RULE 113
Who may issue warrant of arrest: The 1987
ARREST Constitution speaks of “judges” which means
judges of all levels. This power may not be limited
SECTION 1. DEFINITION OF ARREST much less withdrawn by Congress. The power to
determine the existence of probable cause is a
Arrest function of the judge and such power lies in the
The taking of a person into custody in order that he judge alone (People of the Philippines v. Inting, G.R.
No. 88919, July 25, 1990).
may be bound to answer for the commission of an
offense (Sec. 1 Rule 113).
Exception: The BID Commissioner may issue

Two elements of arrest: warrant of arrest of an undesirable alien sought to
be deported because it is not criminal in nature and
1. There is deprivation of liberty the act of deportation is an act of State (Harvey v.
2. Submission of the respondent to the Santiago, G.R. No. 82544, June 28, 1988).
authorities so that he may be bound to answer
the accusations against him
Essential requisites of a valid warrant of arrest
Thus, an accused is not required to be handcuffed
1. Issued upon probable cause which must be
or placed in jail by the authorities in order to be determined personally by a judge after
considered arrested. examination under oath or affirmation of the
complainant and the witnesses he may produce;
2. After evaluation of prosecutor’s report and
Invitations are not arrests and are usually not the evidence adduced during the preliminary
unconstitutional, but in some cases may be taken investigation (Soliven v. Makasiar, G.R. No. L-
as commands (Babst v. NBI, G.R. No. L-62992, 82585, Nov. 14, 1988);
September 28, 1984); However, the practice of 3. The warrant must particularly describe the
issuing an “invitation” to a person who is person to be arrested;
4. In connection with a specific offense or
investigated in connection with an offense he is
crime.
suspected to have committed is considered as
placing him under “custodial investigation” (R.A.
No. 7438). Remedy for warrants improperly issued: Where
a warrant of arrest was improperly issued, the
proper remedy is a petition to quash it, not a
Kinds of arrest petition for habeas corpus, since the court in the
latter case may only order his release but not enjoin
1. Illegal arrest the further prosecution or the preliminary
2. Legal arrest
examination of the accused (Alimpoos v. Court of
Appeals, G.R. No. L-27331, July 30, 1981).
Modes of legal arrest:
1. Arrest by virtue of a valid warrant;
Note: Posting of bail does not bar one from
2. Arrest without a warrant under exceptional
circumstances as may be provided by statute questioning illegal arrest (Section 26, Rule 114,
(Sec. 5, Rule 113). Rules of Court).

SECTION 2. ARREST; HOW MADE SECTION 3. DUTY OF ARRESTING OFFICER

Modes of effecting arrest: A duly issued warrant authorizes the proper officer:
1. By an actual restraint of the person to be 1. To make an arrest thereunder but also
arrested; makes it his duty to carry out without delay the
2. By his submission to the custody of the commands thereof;
person making the arrest. 2. To deliver the person arrested to the
nearest police station or jail without unnecessary
delay.
Reasonable amount of force may be used to
effect arrest: An officer, having the right to arrest
an offender, may use such force as is necessary to SECTION 4. EXECUTION OF WARRANT
effect his purpose, and to a great extent he is made
The Judge issues a warrant of arrest in two
the judge of the degree of force that may be instances:
properly exerted.
1. Upon the filing of the information by the
prosecutor: In issuing this kind of warrant, the
Upon arrest, the following may be confiscated judge does not personally examine the
from the person arrested: complainant and the witnesses he may produce,
but he merely evaluates personally the report and
1. Objects subject of the offense or used or supporting documents and other evidence
intended to be used in the commission of the adduced during the preliminary investigation and
crime; submitted to him by the prosecutor, and if he
2. Objects which are the fruits of the crime; finds probable cause on the basis thereof he
3. Those which might be used by the arrested issues the warrant for the arrest of the accused.
person to commit violence or to escape; 2. Upon application of a peace officer: In
4. Dangerous weapons and those which may this kind of warrant, the judge must personally
be used as evidence in the case. examine the applicant and the witnesses he may
5. Objects, the possession of which is illegal produce, to find out whether there exists probable
per se. cause, otherwise, the warrant issued is null and
void. He must subject the complainant and the
witnesses to searching questions. The reason for
Note: Arrest must precede the search. The process this is there is yet no evidence on record upon
cannot be reversed. Nevertheless, a search which he may determine the existence of
substantially contemporaneous with an arrest can probable cause.
precede the arrest if the police have probable
cause to make the arrest at the outset of the
The head of office to whom the warrant of arrest
search. Reliable information alone is not sufficient
was delivered for execution shall cause the warrant
to justify a warrantless arrest under Section 5 of
to be executed within 10 days from its receipt.
Rule 113 (People of the Philippines v. Racho, G.R.
No. 186529, August 3, 2010).
The rules require, in addition, that the accused Within 10 days after the expiration of the period, the
performs some overt act that would indicate that he officer to whom it was assigned for execution shall
has committed, is actually committing, or is make a report to the judge who issued the warrant.
attempting to commit an offense (People of the In case of failure to execute the warrant, he shall
Philippines v. Tudtud, G.R. No. 144036, September state the reasons therefore.
26, 2003).

Period of warrant of arrest: Unlike a search 3. When the person to be arrested is a

warrant, the validity of which is limited to ten (10) prisoner who has escaped from a penal
days, after which it becomes void (Section 9, Rule establishment or place where he is serving final
126), no time limit is fixed for the validity of a judgment or temporarily confined while his case is
warrant of arrest. pending, or has escaped while being transferred
from one confinement to another;
This must be so, for the return mentioned in this The same is founded on the principle that at the
section refers not to the physical delivery of the time of the arrest, the escapee is in the
very same copy of the process to the issuing court, continuous act of committing a crime (Evasion of
but the report of the officer charged with its the service of sentence).
execution on the action taken by him thereon. In
short, the ten-day period is only a directive to the
officer executing the warrant to make a return to the 4. Where a person who has been lawfully
court (People of the Philippines v. Givera, G.R. No. arrested escapes or is rescued (Sec. 13, Rule
132159, January 18, 2001). 113);
5. By the bondsman for the purpose of

SECTION 5. ARREST WITHOUT WARRANT; surrendering the accused (Sec. 23, Rule 114);
WHEN LAWFUL and
6. Where the accused attempts to leave the
country without permission of the court (Sec. 23,
General Rule: No peace officer or person has the Rule 114).
power or authority to arrest anyone without a
warrant except in those cases expressly authorized In cases falling under nos. 1 and 2, the person
by law (Umil v. Ramos, G.R. No. 81567, October 3, arrested shall be delivered to the nearest police
1991). station or jail and shall be proceeded against in
accordance with Section 6 of Rule 112 ( Formerly
Sec. 7).
Exceptions: Lawful warrantless arrest
1. When, in his presence, the person to be

arrested has committed, is actually committing, or If the arrest was effected without warrant, the
is attempting to commit an offense (In flagrante arresting officer must comply with the provisions of
delicto arrests); Art. 125 of the RPC.
2. When an offense has in fact just been

committed, and he has probable cause to believe In flagrante delicto arrests: An offense is
based on personal knowledge of fact and committed in the presence or within the view of the
circumstance that the person to be arrested has person making the arrest when he sees the
committed it (Doctrine of Hot Pursuit). offense, although at a distance, or hears the
disturbances created thereby and proceeds at once
to the scene thereof; or the offense is continuing, or
Note: Test of immediacy – there must be a large
has been consummated, at the time the arrest is
measure of immediacy between the time the made (People of the Philippines v. Evaristo, G.R.
offense was committed and the time of arrest (Go No. 93828, December 11, 1992).
v. Court of Appeals, supra).

The grounds of suspicion are reasonable when, in Note: Probable Cause must be based upon
the absence of actual belief of the arresting officers, “personal knowledge” which means ‘an actual
the suspicion that the person to be arrested is belief or reasonable grounds of suspicion.’
probably guilty of committing the offense is based
on actual facts. A reasonable suspicion therefore
must be founded on probable cause coupled with Rules on illegality of arrest
good faith on the part of the peace officers making
the arrest (Posadas v. Ombudsman, G.R. No. 1. Objection to the illegality must be raised
131492, September 29, 2000). before arraignment, otherwise it is deemed
waived, as the accused, in this case, has
Buy-bust operations: In a buy-bust operation, the voluntarily submitted himself to the jurisdiction of
idea to commit a crime originates from the offender, the court (People of the Philippines v. Macam,
without anybody inducing or prodding him to G.R. Nos. L-91011-12, November 24, 1994);
commit the offense. If carried out with due regard 2. Illegality of warrantless arrest may be cured
for constitutional and legal safeguards, a buy-bust by filing of an information in court and the
subsequent issuance by the judge of a warrant of
operation deserves judicial sanction (People of the
arrest; (Umil v. Ramos, supra.);
Philippines v. Agulay, G.R. No. 181747, September 3. Once a person has been duly charged in
26, 2008). court, he may no longer question his detention by
A form of entrapment which has been repeatedly petition for habeas corpus; his remedy is to quash
the information and/or the warrant of arrest
accepted to be a valid means of arresting violators
(Enrile v. Salazar, G.R. Nos. 92163-64, June 5,
of the Dangerous Drugs Law. The violator is caught
1990).
in flagrante delicto and the police officers
conducting the operation are not only authorized
but duty-bound to apprehend the violator and to SECTION 6. TIME OF MAKING ARREST
search him for anything that may have been part of
or used in the commission of the crime (People of Unlike a search warrant which must be served only
the Philippines v. Juatan, G.R. No. 1043376, in daytime, an arrest may be made on any day and
August 20, 1996). at any time of the day, even on a Sunday. This is
justified by the necessity of preserving the public
peace.
The buy-bust operation and the search and seizure

pursuant to the buy-bust operation must be
SECTION 7. METHOD OF ARREST OF OFFICER
continuous in order to be valid (People of the
BY VIRTUE OF WARRANT
Philippines v. Enrile, G.R. No. 74189, May 26,
1993). Under this rule, an arrest may be made even if the
police officer is not in possession of the warrant of
arrest (Mallari v. Court of Appeals, G.R. No.
Elements of hot pursuit arrest: 110569, Dec. 09, 1996). Exhibition of the warrant
prior to the arrest is not necessary. However, if
1. Offense has JUST been committed. The time
after the arrest, the person arrested so requires, the
interval between the actual commission of the
crime and the arrival of the arresting officer must warrant shall be shown to him as soon as
be brief (Go v. Court of Appeals, supra, February practicable.
11, 1992);
2. Probable cause based on personal knowledge.
SECTION 8. METHOD OF ARREST BY OFFICER
WITHOUT WARRANT

SECTION 9. METHOD OF ARREST BY PRIVATE Exception to

PERSON Method of the rule on
arrest giving
Citizen’s arrest
information
Refers to arrest effected by a private person.
2. When he
Exception to has escaped,
Method of the rule on flees, or
arrest giving forcibly resists
information before the
officer has an
Sec. 7 The officer shall 1. When the opportunity to
inform the person to be so inform him;
person to be arrested flees; and
2. When he 3. When the
arrested the
forcibly resists giving of such
cause of the information
arrest and the before the
officer has an will imperil the
fact that the opportunity to arrest.
warrant has inform him; Sec. 9 The private 1. When the
been issued for and person to be
person shall
his arrest. 3. When the arrested is
inform the
giving of such person to be engaged in
information the
arrested of the
Note: The will imperil the commission of
arrest. intention to
officer need not an offense or
arrest him and
have the warrant is pursued
the cause of the immediately
in his arrest.
possession at after its
commission;
the time of the
2. When he has
arrest BUT must escaped,
Note: Private
show the same flees, or
person must
after the arrest, forcibly resists
deliver the
if the person before the
arrested person
arrested so person has an
to the nearest
requires. opportunity to
police station or
so inform him;
jail, otherwise, and
Sec. 8 The officer shall 1. When the he may be held 3. When the
inform the person to be criminally liable giving of such
person to be arrested is for illegal information
arrested of his engaged in detention. will imperil the
authority and the the arrest.
commission of
cause of the
an offense or
arrest w/out a
is pursued SECTION 10. OFFICER MAY SUMMON
warrant immediately ASSISTANCE
after its
commission; Only an officer making the arrest is governed by the

rule. It does not cover a private individual making immediate.

an arrest.
Note: The fugitive may be retaken by any person
SECTION 11. RIGHT OF OFFICER TO BREAK who may not necessarily be the same person from
INTO BUILDING OR ENCLOSURE whose custody he escaped or was rescued. Even a
private person may, without a warrant, arrest a
Requisites before an officer can break into a
convicted felon who has escaped and is at large,
building or enclosure to make an arrest:
since he might also, before conviction, have
1. That the person to be arrested is or is arrested the felon (Salonga v. Holland, G.R. No. L-
reasonably believed to be in said building; 268, March 28, 1946).
2. That he has announced his authority and
purpose for entering therein; SECTION 14. RIGHT OF ATTORNEY OR
3. That he has requested and been denied RELATIVE TO VISIT PERSON ARRESTED
admittance.
R.A. No. 7438 defined certain rights of persons
arrested, detained, or under custodial investigation,
Generally, a lawful arrest may be made anywhere, with the penalties for violations thereof.
even on private property or in a house. This rule is
applicable both where the arrest is under a warrant,
and where there is valid warrantless arrest.
RULE 114
B AIL
This provision applies when the person making the
arrest is an officer.
SECTION 1. BAIL DEFINED
Bail
The officer breaking into the building will not be
liable for damages he caused as the arrest is in the The security given for the release of a person in
performance of his duty and under Article 11, RPC, custody of the law, furnished by him or a
it is considered as a justifying circumstance. bondsman, conditioned upon his appearance
before any court as required under the conditions
specified by the rule (Sec. 1, Rule 114).
SECTION 12. RIGHT TO BREAK OUT OF THE Ratio: Right to bail flows from the presumption of
BUILDING OR ENCLOSURE TO EFFECT innocence in favor of every accused who should
RELEASE not be subjected to the loss of freedom. Thus, the
right to bail only accrues when a person is arrested
A private person making an arrest cannot break in
or deprived of his liberty. The right to bail
or out of a building or enclosure because only
presupposes that the accused is under legal
officers are allowed by law to do so.
custody (Feliciano v. Pasicolan, G.R. No. L-14657,
July 31, 1961; Mendoza v. CFI of Quezon, G.R. No.
L-35612-14, June 27, 1973; Paderanga v. Court of
SECTION 13. ARREST AFTER ESCAPE OR Appeals, G.R. No. 115407, August 28, 1995).
RESCUE
Purposes of bail:
Where a person lawfully arrested escapes or is
rescued, any person may immediately pursue or 1. To relieve an accused from the rigors of
retake him without a warrant at any time and in any imprisonment until his conviction and yet secure
place within the country. The pursuit must be his appearance at the trial (Almeda v. Villaluz,

G.R. No. L-31665, August 6, 1975); Person in Custody of Jurisdiction over the
2. To honor the presumption of innocence until his the Law Person
guilt is proven beyond reasonable doubt;
3. To enable him to prepare his defense without to quash the warrant his trial has already
being subject to punishment prior to conviction. of arrest before commenced.
arraignment
Note: Bail is available only to persons in custody of
the law. A person is in the custody of law when he Custody of the law is As long as the
has been either arrested or otherwise deprived of literally custody over accused has been
his freedom or when he has voluntarily submitted the body of the arrested or has
himself to the jurisdiction of the court by accused surrendered and
surrendering to the proper authorities (Dinapol v. thereafter entered a
Baldado, A.M. No. 92-898, August 5, 1993). plea, even if he
subsequently flees,
the court still has
Reason: The purpose of bail is to secure one’s jurisdiction over the
release and it would be incongruous to grant bail to person of the accused
one who is free. The rationale behind this special and can continue trial
rule on bail is that it discourages and prevents though without the
resort to the former pernicious practice wherein the custody of the body of
accused could just send another in his stead to the accused
post his bail, without recognizing the jurisdiction of
the court by his personal appearance therein and (Miranda v. Tuliao, G.R. No. 158763, March 31,
compliance with the requirements therefor 2006)
(Feliciano v. Pasicolan, supra).
Difference between person in custody of the The right to bail is available to those detained but
law and jurisdiction over the person
have not been formally charged (Teehankee v.
Person in Custody of Jurisdiction over the Rovira, G.R. No. L-101, December 20, 1945).
the Law Person
Required before the Required for the All persons, except those charged with offenses
court can act upon the adjudication of reliefs punishable by reclusion perpetua when evidence of
application for bail other than bail sought guilt is strong, shall, before conviction, be bailable
by the defendant (e.g. by sufficient sureties, or be released on
motion to quash) recognizance as may be provided by law. The right
to bail shall not be impaired even when the
One can be under the One can be subject to privilege of the writ of habeas corpus is suspended
custody of the law but the jurisdiction of the (Section 13, Article III, 1987 Constitution).
not yet subject to the court over his person,
jurisdiction of the court and yet not be in the
over his person, such custody of the law, Right to bail in extradition proceedings:
as when a person such as when the Generally, the right to bail is available only in
arrested by virtue of a accused escapes criminal proceedings (Government of the USA v.
warrant and the custody after he Purganan, G.R. No. 148571, September 24, 2002).
accused files a motion entered his plea and An extradition although not a criminal proceeding

by its nature, still entails a deprivation of liberty on Bail in deportation proceedings: Bail in
the part of the potential extraditee and the means deportation proceedings is wholly discretionary. It
employed to attain the purpose of extradition is also is not allowed in deportation proceedings since they
a machinery of criminal law (Herrera, 441). do not constitute a criminal action.
A potential extraditee may be subjected to arrest, to Persons under custody of Military Courts are
a prolonged restraint of liberty, and forced to not entitled to bail
transfer to the demanding state following the
Reasons:
proceedings.
a. Unique structure of the military
“Temporary detention” may be a necessary step in
b. Danger to security as they are allowed by
the process of extradition, but the length of time of the government to the fiduciary use of firearms
the detention should be reasonable. The c.Dangerous as the accused-officers out on bail
prospective extraditee thus bears the onus may use their military influence to their fellow
probandi of showing that he or she is not a flight comrades in order to overthrow the government
risk and should be granted bail (Herrera, 441). (Comendador v. De Villa, G.R. No. 93177, August
2, 1991).
The Philippines, along with the other members of
the family of nations, is committed to uphold the
fundamental human rights as well as value the Forms of bail:
worth and dignity of every person under the time
1. Corporate surety;
honored principle of pacta sunt servanda. Thus if
2. Property bond;
bail can be granted in deportation cases, [there] is 3. Cash deposit;
no justification why it should not also be allowed in 4. Recognizance.
extradition cases (Government of Hong Kong
Special Administrative Region v. Olalia, G.R. No.
1536757, April 19, 2007). Bail Bond Recognizance
While a possible extraditee is not entitled to notice An obligation under An obligation of

and hearing before the issuance of the warrant of seal given by the record, entered into
arrest, the cancellation of bail without prior notice accused with one or before some court or
and hearing is a violation of the extraditee’s right to more sureties, and magistrate duly
due process tantamount to grave abuse of made payable to the authorized to take it,
discretion (Rodriguez v. The Hon. Presiding Judge proper officer with the with the condition to
of RTC Manila, Br. 17, G.R. No. 157977, February condition to be void do some particular
27, 2006). upon performance by act.
Note: Since an extradition proceeding is in the the accused of such
nature of a sui generis, the standard of proof acts as he may legally
required in granting and denying bail, according to be required to
former Chief Justice Renato S. Puno, should be perform.
“clear and convincing evidence.” He said that this
standard should be lower than proof beyond
reasonable but higher than preponderance of Prosecution Witnesses may also be required to
evidence. Thus, the potential extraditee must prove post bail to ensure their appearance at the trial of
by “clear and convincing evidence” that he is not a the case where:
flight risk and will abide with all the orders and
1. There is a substitution of information (Sec. 4,
processes of the extradition (Herrera, 442).
Rule110); and

2. Where the court believes that a material witness 3. The execution of the sentence
may not appear at the trial (Sec. 14, Rule 119).
If the accused presents his notice of appeal, the

Requiring arraignment before grant of bail, not trial court will order the accused to be taken into
valid: It is a mistaken theory for the court to first custody in the absence of a new bail bond on
require arraignment before the grant of bail where it appeal duly approved by the court. If the accused
is authorized. The reasons are: does not appeal, the bondsman must produce the
accused on the 15th day from promulgation of
1. The trial court could ensure the presence of
sentence for service of sentence.
the accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceedings such as arraignment
(Section 2(b), Rule 114); and Note: The trial court may impose other conditions
2. The accused would be placed in a position in granting bail where the likelihood of the accused
where he has to choose between filing a motion jumping bail or of committing other harm to the
to quash and thus delay his release on bail, and citizenry is feared (Almeda v. Villaluz, G.R. No. L-
foregoing the filing of a motion to quash so that 31665, August 6, 1975).
he can be arraigned at once and thereafter be
released on bail (Lavides v. Court of Appeals,
G.R. No. 129670, Feb. 01, 2000).
However, the court may not impose additional
obligations upon the bondsman other than those
SECTION 2. CONDITIONS OF THE BAIL; provided for by law. The obligation imposed upon
REQUIREMENTS the bondsmen cannot be greater nor of a different
Conditions of bail: character than those imposed upon the accused
(Bandoy v. Judge of Court of First Instance, G.R.
1. The undertaking shall be effective upon No. L-5200, March 11, 1909).
approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation
of the judgment of the RTC, irrespective of By filing a fake bail bond, an appellant is deemed to
whether the case was originally filed in or
have escaped from confinement during the
appealed to it;
2. The accused shall appear before the proper pendency of his appeal and in the normal course of
courts whenever so required by the court or these things, his appeal should be dismissed based on
Rules; Sec. 8, Rule 124 (People of the Philippines v. Del
3. The failure of the accused to appear at the Rosario, G.R. No. 107297-98, December 19, 2000).
trial without justification despite due notice shall
be deemed a waiver of his right to be present
thereat. In such case, the trial may proceed in Note: The condition of the bail that “the accused
absentia; shall appear before the proper court whenever so
4. The bondsman shall surrender the accused required by the court or these rules” operates as a
to court for execution of the final judgment.
valid restriction on his right to travel (Manotoc Sr. v.
Court of Appeals, G.R. No. L-63409, May 30,
The surety’s liability covers all these three 1986).
stages:
SECTION 3. NO RELEASE OR TRANSFER
1. Trial EXCEPT ON COURT ORDER OR BAIL
2. Promulgation, irrespective of whether the
case was originally filed in or appealed to RTC No person under detention by legal process shall

be released or transferred except upon order of the and reputation, forfeiture of other bonds or whether
court or when he is admitted to bail. he is a fugitive from justice.
SECTION 4. BAIL, A M ATTER OF RIGHT;
EXCEPTION
Hearing is not required if bail is recommended by
A matter of right prosecution and it is a matter of right.
1. Before conviction by the inferior courts
2. After conviction by the inferior courts
3. Before conviction by the RTC of an offense Summary of the evidence for the prosecution:
not punishable by death, reclusion perpetua or The court’s order granting or refusing bail must
life imprisonment contain a summary of the evidence for the
4. Before conviction by the RTC when the prosecution, otherwise the order granting or
imposable penalty is death, reclusion perpetua or denying bail may be invalidated because the
life imprisonment and the evidence of guilt is not summary of the evidence for the prosecution which
strong. contains the judge’s evaluation of the evidence may
be considered as an aspect of procedural due
process for both the prosecution and the defense.
In instances where bail is a matter of right and the
bail to be granted is based on the recommendation
of the prosecution as stated in the information or
complaint, a hearing is not necessary. The accused who absconded after posting bail
does not lose his right to bail: When an accused
filed bail as a matter of right and absconded and
But where, however, there is a reduction of bail as then was subsequently re-arrested, his bail will be
recommended or after conviction by the RTC of an forfeited. However, he can still file for another bail.
offense not punishable by death, reclusion The court cannot deny bail if it is a matter of right.
perpetua, or life imprisonment wherein the grant of
bail is discretionary, there must be a hearing before
a bail is granted in order to afford the prosecution Thus, even if the accused jumped bail 100 times for
the chance to oppose it (Bangayan v. Butacan, an offense not punishable by reclusion perpetua,
A.M. No. MTJ-00-1320, November 22, 2000). life imprisonment or death, and it is pending before
the RTC, bail must still be granted (Sy Guan v.
Amparo, G.R. No. L-1771, December 4, 1947).
The prosecution cannot adduce evidence for the
denial of bail where it is a matter of right. However,
where the grant of bail is discretionary, the Remedy of the court: Increase the amount of bail in
prosecution may show proof to deny the bail. order to discourage the accused from jumping bail
(Sec. 20, Rule 114).
Notice of hearing required: Whether bail is a

matter of right or of discretion, reasonable notice of SECTION 5. BAIL, WHEN DISCRETIONARY
hearing is required to be given to the prosecutor or When bail is a matter of discretion, the
fiscal or at least he must be asked for his
determination of whether or not to grant bail lies
recommendation because in fixing the amount of with the sound discretion of the court.
bail, the judge is required to take into account a
number of factors such as the applicant’s character

Bail is discretionary: accused is charged with an offense punishable by

reclusion perpetua, life imprisonment or death
1. Upon conviction by the RTC of an offense and the evidence of guilt is strong (Sec. 7);
not punishable by death, reclusion perpetua or 2. After conviction by the RTC when penalty
life imprisonment, admission to bail is imposed is death, life imprisonment or reclusion
discretionary (Sec. 5); perpetua
2. After conviction by the RTC wherein a 3. After conviction by the RTC imposing a
penalty of imprisonment exceeding 6 but not penalty of imprisonment exceeding 6 years but
more than 20 years is imposed, and not one of not more than 20 years and any of the
the circumstances below is present and proved, circumstance enumerated above and other
bail is a matter of discretion (Sec.5): similar circumstance is present and proved, no
a. Recidivism, quasi-recidivism or habitual bail shall be granted (Sec.5);
delinquency or commission of crime aggravated 4. Judgment is final and executory unless
by the circumstances of reiteration; accused applied for probation before
b. Previous escape from legal confinement, commencing to serve sentence of penalty and
evasion of sentence or violation of the offense within purview of probation law (Sec. 24).
conditions of bail without valid justification; 5. Court martial cases
c.Commission of an offense while on probation,
parole or under conditional pardon;
d. Circumstance of the accused or his case Where to file bail upon conviction by the RTC of
indicates the probability of flight if released on an offense not punishable by death, reclusion
bail; perpetua, or life imprisonment:
e. Undue risk of commission of another crime
by the accused during pendency of appeal. 1. With the trial court despite the filing of a
notice of appeal provided it has not transmitted
the original record to the appellate court.
It may be inferred from Sec. 5 that, if the accused 2. With the appellate court if the original
is convicted by the RTC of a crime with a penalty records has already been transmitted
of not more than 6 years imprisonment, bail is 3. With the appellate court if the decision of
still a matter of discretion. However, the absence the trial court convicting the accused changed the
of the above-cited circumstances under Section 5 nature of the offense from non-bailable to bailable.
is not anymore required in order for the court to
decide whether or not to grant bail. SECTION 6. CAPITAL OFFENSE, DEFINED
Capital Offense
Note: In order to grant bail as a matter of Refers to an offense which, under the law existing
discretion, there must be no final judgment yet. In at the time of its commission AND at the time of the
other words, the accused should appeal the application to be admitted to bail, may be punished
conviction of the RTC to the appellate court. with death.
Upon conviction of the RTC, the bail posted earlier If the law at the time of commission does not
as a matter of right loses its force and the accused impose the death penalty, the subsequent
must file a new and separate petition for bail
amendment of the law increasing the penalty
cannot apply to the case, otherwise it would be ex
post facto, and penalties are determined by the law
When bail will not be granted: at the time of the commission of the offense.
1. Before conviction by the RTC when

If the law at the time of the application for bail has The capital nature of the offense is determined by
amended the prior law which imposed the death the penalty prescribed by law and not the penalty
penalty by reducing such penalty, such favorable actually imposed on the accused (Bravo, Jr. v.
law generally has a retroactive effect. Borja, G.R. No. 65228, February 18, 1985). (Bravo,
Jr. v. Borja, G.R. No. L-34851, February 25, 1985).
SECTION 7. CAPITAL OFFENSE NOT BAILABLE

SECTION 8. BURDEN OF PROOF IN BAIL
General Rule: Capital offense or those punishable APPLICATION
by reclusion perpetua, life imprisonment or death
are NOT BAILABLE when evidence of guilt is The hearing should be summary or otherwise in the
strong. discretion of the court. The burden of proving that
the evidence of guilt is strong lies with the
Note: R.A. No. 9346 (An Act Prohibiting the
prosecution (Comia v. Antona, A.M. No. RTJ-99-
Imposition of Death Penalty in the Philippines, June 1518, 14 August 2000).
24, 2006) prohibited the imposition of death
penalty. Hence, there is no more capital offense.
Exception: If the accused charged with a capital Procedure/duties to be followed by the judge
offense is a minor. when bail application is filed:
Ratio: One who faces a probable death sentence 1. Notify the prosecutor of the hearing of the
has a particularly strong temptation to flee. This application for bail or require him to submit his
reason does not hold where the accused has been recommendation. Bail may be granted only after
established without objection to be a minor who by motion for that purpose has been filed. It may not
law cannot be sentenced to death (Bravo, Jr. v. be granted motu proprio (Lardizabal v. Judge
Borja, G.R. No. 65228, February 18, 1985). Reyes, A.M. No. MTJ-94-897, December 25,
1994);
For purposes of recommending the amount of bail, 2. Conduct a hearing of the application for bail
the privileged mitigating circumstance of minority regardless of whether or not the prosecution
shall be considered (Sec. 34, R.A. No. 9344 or the refuses to present evidence. If the prosecution
Juvenile Justice and Welfare Act of 2006). refuses to adduce evidence, it is still mandatory
for the court to conduct a hearing or ask
R.A. No. 9344 (Juvenile Justice and Welfare Act of searching and clarificatory questions (Baylon v.
2006) suspends sentence of persons convicted of Sison, A.M. No. 93-2-037, April 6, 1995);
an offense while they were below 18 years old but 3. Decide whether the evidence of guilt is strong.
above 15 years old, who acted with discernment. The decision must contain a complete summary
of the evidence of the prosecution (Baylon v.
If they acted without discernment, only civil liability Sison, A.M. No. 93-2-037, April 6, 1995);
may attach. For those committed by minors15
years old or under, there is no criminal liability, only
Failure to allege summary of evidence in the
civil liability.
written order of bail shall render the order void,
Hence, youthful offenders are not put in jail by whether or not bail is granted. The judge can also
police authorities upon their arrest for the reason face administrative charges (Marallag v.
that if in conviction they are not committed how Purugganan A.M. No. 00-1529-RTJ, April 9, 2002)
much more when they are not tried much less
investigated.
4. If the guilt of the accused is not strong, discharge
the accused upon approval of the bail bond

issued in a written order. Otherwise, the petition trial;

should be denied (Basco v. Judge Rapatalo, A.M. 8. Forfeiture of other bail;
No. RTJ-96-1335, March 5, 1997). 9. The fact that the accused was a fugitive
from justice when arrested; and
10. Pendency of other cases when the accused
Evidence of guilt is strong when proof is evident or is on bail.
the presumption of guilt is strong. The test is not
whether the evidence establishes guilt beyond
reasonable doubt but rather whether it shows But, at the bottom, in bail-fixing, the principal factor
evident guilt or a great presumption of guilt (Sec. considered, to the determination of which most
13, Article 3, 1987 Constitution). other factors are directed, is the probability of the
appearance of the accused, or of his flight to avoid
punishment. It should be high enough to assure the
The evidence presented during the bail hearings presence of defendant but not higher than is
are considered automatically reproduced at the reasonably calculated to fulfill the purpose
(Villaseñor v. Abano, G.R. No. L-23599, Sept. 29,
trial, but upon motion of either party, the court may
1967).
recall any witness for additional examination unless
the witness is dead, outside of the Philippines, or
otherwise unable to testify (Sec. 8, Rule 114).
Bail must not be in a prohibitory amount. Excessive
bail is not to be required.
The determination of the weight of the evidence is
discretionary upon the judge and its outcome
cannot be compelled by mandamus (Payao v. SECTION 10. CORPORATE SURETY
Lesaca, G.R. No. L-45176, July 22, 1936). Any domestic or foreign corporation, licensed as a
surety in accordance with law and currently
authorized to act as such, may provide bail by a
If bail is denied by trial court, the review jurisdiction bond subscribed jointly by the accused and an
of the Supreme Court may be invoked, but not officer of the corporation duly authorized by its
without first applying to the CA (People of the board of directors.
Philippines v. Magallanes, G.R. Nos. 118013-14,
Oct. 11, 1995).
SECTION 11. PROPERTY, HOW POSTED
SECTION 9. AMOUNT OF BAIL; GUIDELINES

Property Bond
Factors to be considered in fixing the An undertaking constituted as a lien on the real

reasonable amount of bail: (not exclusive) property given as security for the amount of the
bail.
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty of the offense charged;
4. Character and reputation of the accused; Within 10 days after the approval of the bond, the
5. Age and health of the accused; accused shall cause the annotation of the lien on
6. Weight of evidence against the accused; the certificate of title with the Registry of Deeds,
7. Probability of the accused appearing at the and on the corresponding tax declaration in the

office of the provincial, city and municipal assessor Section 13. JUSTIFICATION OF SURETIES
concerned. Failure to do so shall be sufficient
cause for the cancellation of the property bond and
re-arrest and detention of the accused. Before accepting a Surety or Bail Bond, the
following requisites must be complied with:
1. Photographs of the accused;

The bondsman must be the owner of the property
2. Affidavit of justification;
under the property bond. Otherwise, the petition for 3. Clearance from the Supreme Court;
bail shall be denied or the issued bail order shall be 4. Certificate of compliance with Circular No.
revoked. 66 dated September 19, 1996;
5. Authority of the agent; and
6. Current certificate of authority issued by the
SECTION 12. QUALIFICATIONS OF SURETIES Insurance Commissioner with a financial
IN PROPERTY BOND statement showing the maximum underwriting
capacity of the surety company.
The qualifications of sureties in a property bond
shall be as follows:
The purpose of the rule requiring the affidavit of
1. Each must be a resident owner of real qualification by the surety before the judge is to
estate within the Philippines; enable the latter to determine whether or not the
Note: This is merely a minimum requirement. surety possesses the qualification to act as such,
Thus, the court may require that a surety be a especially his financial worth.
resident of a specific place (e.g., province, city)
Reason: So the sureties will be within the reach
of court processes (Villaseñor v. Abano, G.R. No.
The justification being under oath, any falsity
L-23599, September 29, 1967).
introduced thereto by the surety upon a matter of
2. Where there is only one surety, his real significance would render him liable for perjury.
estate must be worth at least the amount of the
undertaking; and
3. If there are two or more sureties, each may SECTION 14. DEPOSIT OF CASH AS BAIL
justify in an amount less than that expressed in
the undertaking but the aggregate of the justified The accused or any person acting in his behalf may
sums must be equivalent to the whole amount of deposit in cash with the nearest collector of internal
the bail demanded. revenue, or provincial, city or municipal treasurer,
or the clerk of court where the case is pending, the
In all cases, every surety must be worth the amount amount of bail fixed by the court or recommended
by the fiscal who investigated or filed the case.
specified in his own undertaking over and above all
just debts, obligations and properties exempt from
execution.
Release of the accused without a need for a court
Note: Philippine residency is required of a property order: Just submit (1) proper certificate of deposit
bondsman. The reason for this is that bondsmen in and (2) written undertaking showing compliance
criminal cases, residing outside of the Philippines, with requirements.
are not within the reach of the processes of the
courts (Villaseñor v. Abano, G.R No. L-23599,
Sept. 29, 1967). The money deposited shall be considered as bail
and applied to the payment of fine and costs. The

excess, if any, shall be returned to the accused or himself or of a responsible

to whoever made the deposit. citizen
2. R.A. No. 7610: One
of the rights of child
Note: The trial court may not reject otherwise arrested acting as a
acceptable sureties and insist that the accused combatant, spy, carrier or
obtains his provisional liberty only thru a cash bond. guide in an armed conflict
is to be released in
Excessive bail shall not be required (Almeda v. recognizance to the
Villaluz, G.R. No. L-31665, August 6, 1975). custody of DSWD or
responsible member of the
community
SECTION 15. RECOGNIZANCE 3. P.D. No. 603: In
case of a youthful
offender held for physical
Recognizance or mental examination,
trial or appeal, if unable to
Refers to an obligation of record, entered into furnish bail and under the
before some court or officer authorized to take it circumstances
with a condition to do some particular act, the most 4. Sec. 16, Rule 114: A
usual condition in criminal cases being the person who has been in
appearance of the accused for trial. custody for a period equal
to or more than the
possible maximum
imprisonment prescribed
Note: The release of the accused may be on his for the offense charged,
own recognizance, which means that he has without prejudice to the
become his own jailer (Character loan). continuation of the trial or
the proceedings on
appeal;
5. Sec. 24, Rule 114:
SECTION 16. BAIL WHEN NOT REQUIRED;
Where the accused has
REDUCED BAIL ON RECOGNIZANCE
applied for probation and
before the same has
been resolved but no bail
Instances wherein the accused may be released was filed or the accused is
on recognizance, without putting Bail or on incapable of filing one, in
reduced Bail which case he may be
released on recognizance;
1. R.A. No. 6036: 6. Sec. 16 of the
Offense charged is Rules on Summary
Can be Procedure: accused was
violation of an ordinance,
released arrested for failure to
light felony or a criminal
without bail but offense, the imposable appear when required by
in penalty wherefore does the court. In such
recognizance not exceed 6 months of instance, the court can
of another imprisonment and/or fine allow the accused to be
of P 2,000, he can be released either on bail or
placed in recognizance of recognizance of a
responsible citizen

6. When he has been previously convicted for

an offense to which the law or ordinance attaches
Sec. 16, Rule 114 - A an equal or greater penalty or for two or more
person accused of an offenses to which it attaches a lighter penalty;
offense with a maximum 7. When he commits the offense while on
penalty of destierro shall be parole or under conditional pardon;
released after 30 days of 8. When the accused has previously been
preventive imprisonment. pardoned by the municipal or city mayor for
violation of municipal or city ordinance for at least
two times.
Sec. 16, Rule 114 - A
person in custody for a
period equal to or more than SECTION 17. BAIL, WHERE FILED
the minimum of the principal
1. May be filed with the court where the case
penalty prescribed for the
is pending, or in the absence or unavailability of
On reduced offense charged, without the judge thereof, with any regional trial court
bail or on his application of the judge, or any inferior court judge in the province,
own indeterminate sentence law city, or municipality;
recognizance or any modifying
circumstance shall be
released on reduced bail or Despite the filing of a notice of appeal, it may still
on his own recognizance, at be filed before the trial court, provided it has not
the discernment of the court. transmitted the original record to the appellate
court (Sec. 5, Rule 114).
General Rule: No bail
2. If the accused is arrested in a province, city

Under the or municipality other than where the case is
Exception: When a warrant
Revised Rules pending, bail may also be filed with any regional
on Summary of arrest is issued for failure trial court of the said place, or if no judge thereof
Procedure to appear when required by is available, with any inferior court judge therein;
the court (Sec. 16 of the
Rules on Summary
Procedure). 3. Whenever the grant of bail is a matter of
discretion, or the accused seeks to be released
Exception to release in recognizance under R.A. on recognizance, the application may be filed
No. 6036 only in the particular court where the case is
pending, whether on trial or appeal (As amended
1. When he is caught committing the offense by A.M. No. 05-8-26-SC);
in flagranti;
2. When he confesses to the commission of
the offense unless the confession is later 4. Any person in custody who is not yet
repudiated by him charged in court may apply for bail with any court
3. When he is found to have previously in the province, city or municipality where he is
escaped from legal confinement, evaded held;
sentence, or jumped bail; 2.
4. When he is found to have previously 5. If the decision of the trial court convicting
violated the provisions of Section 2; the accused changed the nature of the offense
5. When he is found to be a recidivist or a from non-bailable to bailable, the application for
habitual delinquent bail can only be filed with and resolved by the

appellate court. proper court of his bail bond may be held liable
under Article 126 of the Revised Penal Code for
delaying release.
A judge presiding in one branch has no power to
grant bail to an accused who is being tried in
another branch presided by another judge who is
not absent or unavailable, and his act of releasing Where bail is filed in court other than where the
him on bail constitutes ignorance of law which case is pending, the judge who accepted the bail
subjects him to disciplinary sanction. shall forward it together with the order of release
and other supporting papers, to the court where the
case is pending.
SECTION 18. NOTICE OF APPLICATION TO
PROSECUTOR
SECTION 20. INCREASE OR REDUCTION OF
The rule makes no distinction whether bail is a BAIL
matter of right or of discretion. In all instances,
reasonable notice of hearing is required to be given When the amount of bail is increased, the accused
to the prosecutor, or at least he must be asked for may be committed to custody if he does not give
his recommendation (Chin v. Judge Gustilo, A.M. bail in the increased amount within a reasonable
No. RTJ-94-1243, August 11, 1995). period.
Such notice is necessary because the burden of An accused released without bail upon filing of the
proving that the evidence of guilt is strong is on the complaint or information may, at any subsequent
prosecution and that the discretion of the court in stage of the proceedings and whenever a strong
admitting the accused to bail can only be exercised showing of guilt appears to the court, be required to
after the fiscal has been heard regarding the nature give bail in the amount fixed, or in lieu thereof,
of the evidence in his possession (People of the committed to custody.
Philippines v. Raba, G.R. No. L-10724, April 21,
1958).
The guidelines provided for in Section 9, Rule 114
in fixing the amount of bail are also applicable in
Note: A warrant of arrest without recommendation reducing or increasing the bail previously fixed.
for bail is a violation of the constitutional right of the
accused to bail unless the accused is charged with
offenses punishable by reclusion perpetua or SECTION 21. FORFEITURE OF BAIL
higher and the evidence of guilt is strong (Parada v.
When the appearance of the accused out on bail is
Veneracion, A.M. No. RTJ-96-1353, March 11,
specifically required by the court and he failed to
1997). appear, the court shall issue an order of forfeiture
wherein:
SECTION 19. RELEASE ON BAIL 1. The provisional liberty of the accused due to
the bail bond shall be revoked and;
Once the accused has been admitted to bail, he is 2. It shall require the bondsman to produce the
entitled to immediate release from custody. An principal.
officer who fails or refuses to release him from
detention notwithstanding the approval by the
Within thirty (30) days from the failure of the

accused to appear in person as required, the Note: This is without prejudice to any liability on the
bondsmen must: bail.
a. Produce the body of their principal or give SECTION 23. ARREST OF ACCUSED OUT ON
the reason for his non-production; and BAIL
b. Explain why the accused did not appear
before the court when first required to do so. Methods by which Sureties may relieve
themselves from responsibilities:
Failing in these requisites, an order of 1. Arrest the principal and deliver him to the proper
confiscation shall be rendered against the authorities;
bondsmen, jointly and severally, for the amount of 2. They may cause his arrest to be made by any
bail. police officer or other person of suitable age or
discretion; or
3. By endorsing the authority to arrest upon a
certified copy of the undertaking and delivering it
Court may mitigate the liability of bondsman if the to such officer or person.
accused has been surrendered or is acquitted.
Note: An accused released on bail may be re-

arrested without a warrant if he attempts to depart
Note: The 30-day period granted to the bondsmen
from the Philippines without prior permission of the
to comply with the two requisites for the lifting of the
court where the case is pending.
order of forfeiture cannot be shortened by the court
but may be extended for good cause shown.
Order of Forfeiture Order of Confiscation Hold-Departure Orders (HDO): A Hold Departure

Order may be issued either by the Regional Trial
Not independent of the Courts or by the DOJ (DOJ Circular No. 41, June 7,
order of forfeiture. It is 2010).
a judgment ultimately
Conditional and determining the liability
interlocutory. It is not of the surety HDO Issued by RTC: Hold Departure Orders
appealable. thereunder and issued by the RTC shall pertain to criminal cases
therefore final. falling within their exclusive jurisdiction, pursuant to
Execution may issue at Supreme Court Circular 39-97.
once.
HDO Issued by DOJ: The DOJ in the following

SECTION 22. CANCELLATION OF BAIL cases may issue a Hold Departure Order
1. Against an accused irrespective of
nationality, in criminal case falling within the
Bail is cancelled: (AADE)
jurisdiction of courts below the Regional Trial
1. Upon application of the bondsmen with due Courts;
notice to the prosecutor, upon surrender of the 2. Against the alien whose presence is
accused or proof of his death; required either as a defendant, respondent or
2. Upon acquittal of the accused; witness in a civil or labor case pending litigation,
3. Upon dismissal of the case; or or any case before an administrative agency;
4. Execution of judgment of conviction.

3. Against any person, motu proprio, or upon non-extendible period of not more than sixty (60)
the request of the Head of a Department of the days (Sec. 4, DOJ Circular No. 41).
Government; the head of a constitutional body or
commission; the Chief Justice of the Supreme
Court for the Judiciary; the Senate President or
Lifting/Cancellation: The HDO may be lifted or
the House Speaker for the Legislature, when the
adverse party is the Government or any of its cancelled under any of the following grounds:
agencies or instrumentalities, or in the interest of 1. When the validity period of the HDO has
national security, public safety or public health already expired;
(Sec. 1, DOJ Circular No. 41). 2. When the accused subject of the HDO has
been allowed to leave the country during the
pendency of the case, or has been acquitted of
Furthermore, the proper court may issue a hold-
the charge or the case in which the warrant/order
departure order or direct the Department of Foreign of arrest was issued has been dismissed or the
Affairs to cancel the passport of the accused. This warrant/order of arrest has been recalled;
is a case of a valid restriction on a person’s right to 3. When the civil or labor case or case before
travel so that he may be dealt with in accordance an administrative agency of the government
with the law (Silverio v. Court of Appeals, G.R. No. wherein the presence of the alien subject of the
94284, April 08, 1991). HDO/WLO has been dismissed by the court or by
appropriate government agency, or the alien has
been discharged as a witness therein, or the alien
Watchlist Order (WLO): The Secretary of Justice has been allowed to leave the country (Sec. 5,
DOJ Circular No. 41).
may issue a Watchlist Order in the following
circumstances:
The WLO may be lifted or cancelled under any
1. Against the accused, irrespective of
of the following grounds:
nationality, in criminal cases pending trial before
the Regional Trial Court. 1. When the validity period of the WLO has
2. Against the respondent, irrespective of already expired;
nationality, in criminal cases pending preliminary 2. When the accused subject of the WLO has
investigation, petition for review, or motion for been allowed by the court to leave the country
reconsideration before the Department of Justice during the pendency of the case, or has been
or any of its provincial or city prosecution offices. acquitted of the charge; and
3. Against any person, either motu proprio, or 3. When the preliminary investigation is
upon the request of any government agency, terminated, or when the petition for review, or
including commissions, task forces or similar motion for reconsideration has been denied
entities created by the Office of the President, and/or dismissed (Sec. 5, DOJ Circular No. 41).
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 All applications for lifting/cancellation of
interest of national security, public safety or public HDOs/WLOs must be under oath and accompanied
health (Sec. 2, DOJ Circular No. 41). by certified true copies of the documentary
evidence in support of the ground relied upon (Sec.
Validity: The validity period of any HDO/WLO 5[c], DOJ Circular No. 41).
issued pursuant to this Circular shall be reckoned
from the date of its issuance. The HDO shall valid
for five (5) years unless sooner terminated. On the Any HDO/WLO issued by the Secretary of Justice
other hand, the WLO shall be valid for sixty (60) either motu proprio or upon request of government
days unless sooner terminated or extended, for a functionaries/offices mentioned in Sections 1 and 2

of DOJ Circular No. 41, when the adverse party is of provincial, city and municipal jails and the
the Government or any of its agencies or prisoners within their respective jurisdictions.
instrumentalities, or in the interest of national
security, public safety or public health, may be lifted
or recalled anytime if the application is favorably The employment of physical, psychological or
indorsed by the government functionaries/offices degrading punishment against any prisoner or
who requested the issuance of the aforesaid detainee or the use of substandard or inadequate
HDO/WLO (Sec. 5[d], DOJ Circular No. 41). penal facilities under subhuman conditions shall be
dealt
1. with by law (Section 19(2), Article III, 1987
SECTION 24. NO BAIL AFTER FINAL Constitution).
JUDGMENT; EXCEPTION SECTION 26. BAIL NOT A BAR TO
OBJECTIONS ON ILLEGAL ARREST, LACK OF
OR IRREGULAR PRELIMINARY
General Rule: No bail shall be allowed after the INVESTIGATION
judgment has become final, as what is left is for him
to serve the sentence. An application for or admission to bail shall not
bar the accused from challenging:
1. The validity of his arrest; or

Exception: When he has applied for probation 2. The legality of the warrant issued therefore;
before commencing to serve sentence, the penalty or
and the offense being within the purview of the 3. The regularity or questioning the absence of
Probation Law. The application for probation must preliminary investigation of the charge against
be filed within the period of perfecting an appeal. him.
Such filing operates as a waiver of the right to Provided that the accused raises them before
appeal. entering his plea.
The court shall observe the matter as early as

practicable, but not later than the start of the trial of
Exception to the Exception: The accused shall the case.
not be allowed to be released on bail after he has
commenced to serve his sentence.
RULE 115
No bail shall be granted after judgment, if the case RIGHT S OF T HE ACCUSED
has become final even if continued confinement of
the accused would be detrimental or dangerous to
his health. The remedy would be to submit him to This rule enumerates the rights of a person
medical treatment or hospitalization. accused of an offense, which are both
constitutional as well as statutory, save the right to
appeal, which is purely statutory in character.
SECTION 25. COURT SUPERVISION OF
DETAINEES
Elements of criminal due process
The court shall exercise supervision over all
persons in custody for the purpose of eliminating 1. Accused must have been heard in a court of
unnecessary detention. The executive judges of competent jurisdiction;
RTCs shall conduct monthly personal inspections 2. Accused is proceeded against under the

orderly processes of law;

3. He has been given notice and opportunity to
be heard; Note: Equipoise Rule provides that where the
4. The judgment was awarded within the evidence of the parties in a criminal case are
authority of a constitutional law (Mejia v. Pamaran, evenly balanced, the constitutional presumption of
G.R. No. L-57469, April 15, 1988). innocence should tilt in favor of the accused who
must be acquitted.
SECTION 1. RIGHTS OF THE ACCUSED AT THE
TRIAL
The legislature may enact that when certain facts
have been proved, they shall be prima facie
evidence of the existence of the guilt of the
Right to be presumed innocent: This is a non-
accused and shift the burden of proof provided
waivable right. In all criminal prosecutions, the
there be a rational connection between the facts
accused is presumed innocent until the contrary is
proved and the ultimate fact presumed so that the
proved beyond reasonable doubt.
inference of the one from proof of the other is not
an unreasonable and arbitrary experience (People
of the Philippines v. Mingoa, G.R. No. L-5371,
Reason for the presumption of innocence: it is March 26, 1953).
based on the principle of justice. The conviction
must be based on moral certainty, for it is better to
acquit a guilty person rather than convict an Examples:
innocent man (People of the Philippines v.
Dramayo, G.R. No. L-23444, October 29, 1971). 1. Unexplained flight of the accused;
2. Failure to explain possession of stolen
property (US. v. Espia, G.R. No. 5813, August 27,
Reasonable Doubt 1910);
3. Failure to account funds and property of a
That doubt engendered by an investigation of the public officer entrusted to him.
whole proof and an inability, after such investigation,
to let the mind rest easy upon the certainty of guilt.
In cases of self defense, the person who invokes
self defense is presumed guilty. In this case a
reverse trial will be held.
Note: Absolute certainty of guilt is not demanded
by the law to convict of any criminal charge but
moral certainty is required, and this certainty is Right to be informed of the nature and the
required as to every proposition of proof requisite to cause of the accusation against him
constitute the offense (People of the Philippines v.
Dramayo, G.R. No. L-23444, October 29, 1971).
Means of informing the accused of the charge:
Ratio: The slightest possibility of an innocent man 1. Preliminary investigation;

being convicted for an offense he has not 2. Requirement of sufficient allegations in
committed would be far more dreadful than letting a information or complaint;
guilty person go unpunished for a crime he may 3. Arraignment;
have perpetrated (People of the Philippines v. 4. Bill of particulars;
Lagmay, G.R. No. 125310, April 21, 1999). 5. Rules against duplicity of offense.

General Rule: An accused cannot be convicted of Right to be present and defend in person and
an offense unless it is clearly charged in the by counsel at every stage of the proceeding
complaint or information. To convict him of an
offense other than that charged in the complaint or
information would be a violation of this General Rule: Presence of the accused during the
constitutional right (People of the Philippines v. criminal action is not required and shall be based
Ortega, G.R. No. 116736, July 24, 1997). on his sole discretion.
Exception: An information which lacks certain Exception: The presence of the accused is
essential allegations may still sustain a conviction mandatory in the following:
when the accused fails to object to its sufficiency
during trial and the deficiency was cured by 1. During arraignment (Sec. 1b, Rule 116);
competent evidence presented therein (People of 2. Promulgation of sentence except when the
conviction is for a light offense, in which case, it
the Philippines v. Palarca, G.R. No. 146020, May
may be pronounced in the presence of his
29, 2002; People of the Philippines v. Orbita, G.R.
counsel or a representative;
No. 136591, July 1, 2002). This is considered a 3. When ordered by the court for purposes of
waiver of his constitutional right. identification.
This right requires that the information should state Not applicable in SC and CA: The law securing to
the facts and the circumstances constituting the an accused person the right to be present at every
crime charged in such a way that a person of stage of the proceedings has no application to the
common understanding may easily comprehend proceedings before the Court of Appeals and the
and be informed of what it is about. Supreme Court nor to the entry and promulgation of
their judgments. The defendant need not be
present in court during the hearing of the appeal
(Sec. 9 Rule 124).
When a person is charged in a complaint with a
crime and the evidence does not show that he is
guilty thereof, but does show that he is guilty of
some other crime or a lesser offense, the court may Accused may waive his right to be present during
sentence him for the lesser offense, Provided, the the trial. However, his presence may be compelled
lesser offense is a cognate offense and is included when he is to be identified (Aquino, Jr. v. Military
in the complaint with the court. Commission, G.R. No. L-37364, May 9, 1975).
Requirements of waiver:
The qualifying or aggravating circumstances must
be alleged and proved in order to be considered 1. Existence of the right;
by the court. 2. Knowledge of the existence thereof;
3. Intention to relinquish which must be shown
The description, not the designation of the offense clearly and convincingly;
is controlling. In case of error in the designation, 4. Where the Constitution or law provides, it
accused may be validly convicted of the offense must be with the assistance of counsel to be valid.
described.
Effects of waiver of the right to appear by the

accused: The right covers the period beginning from

custodial investigation, well into the rendition of the
1. Waiver of the right to present evidence and
judgment and even on appeal (People of the
cross-examine witnesses;
2. Prosecution can present evidence if Philippines v. Serzo, Jr., G.R. No. 118435, June 20,
accused fails to appear; 1997).
3. The court can decide without accused’s
evidence.
Note: While the right to counsel is absolute, the
right to counsel de parte is not (People of the
Trial in Absentia: It is important to state that the
Philippines v. Serzo, G.R. No. 118435, June 20,
provision of the Constitution authorizing the trial in 1997).
absentia of the accused in case of his non-
appearance after arraignment despite due notice
simply means that he thereby waives his right to
meet the witnesses face to face among others. Difference between the right to counsel during
arraignment and during the trial:
1. During arraignment: The court has the
Such waiver of a right of the accused does not affirmative duty to inform the accused of his right
mean a release of the accused from his obligation to counsel and to provide him with one in case he
under the bond to appear in court whenever so cannot afford it. The court must act on its own
required. The accused may waive his right but not volition, unless the right is waived by the accused.
his duty or obligation to the court. 2. During trial: It is the accused who must
assert his right to counsel. The court will not act
unless the accused invokes his rights.
Requirements for trial in absentia:
Custodial Investigation
1. The accused has been arraigned;
2. He has been duly notified of the trial; The questioning by law enforcement officers of a
3. His failure to appear is unjustified. suspect taken into custody or otherwise deprived of
his freedom of action in a significant way. It
includes the practice of issuing an “invitation” to a
An escapee who has been duly tried in absentia
person who is investigated in connection with an
waives his right to present evidence on his own
offense he is suspected to have committed (R.A.
behalf and to confront and cross-examine
No. 7438).
witnesses who testified against him (Gimenez v.
Nazareno, G.R. No. L-37974, April 15, 1988). Difference between the right to counsel during
custodial investigation and during the trial:
1. During trial: the right to counsel means
Right to counsel: The right to counsel is absolute
effective counsel. Counsel is here not to prevent
and may be invoked at all times even on appeal the accused from confessing but to defend the
(Telan v. Court of Appeals, G.R. No. 95026, accused.
October 4, 1991). Without the aid of counsel, a 2. Custodial investigation: stricter
person may be convicted not because he is guilty requirement, it requires the presence of
but because he does not know how to establish his competent and independent counsel who is
innocence. preferably the choice of the accused. Since a
custodial investigation is not done in public there
is a danger that confessions can be exacted
against the will of the accused.

Note: The constitutional provision on custodial custodial investigation will be solely in the hands of
investigation does not apply to a spontaneous an accused by stubbornly insisting to be
statement, not elicited through questioning by the represented by a lawyer who, for one reason or
authorities but given in an ordinary manner another, is not available to protect his interest
whereby the suspect orally admits having (People of the Philippines v. Barasina, G.R. No.
committed the crime. It does not also apply to an 109993, January 21, 1994).
admission or confession made before he is placed
under investigation (People of the Philippines v.
Baloloy, G.R. No. 140740, April 12, 2002). Note: The right to counsel and the right to remain
silent do not cease even after a criminal
complaint/information has already been filed
Confessions made without the assistance of against the accused, as long as he is still in custody
counsel are not admissible as evidence to (People of the Philippines v. Maqueda, G.R. No.
incriminate the accused but they may be used to 112983, March 22, 1995).
impeach the credibility of the accused (Harris v.
New York, 401 U.S. 222 [1971]), or they may be
treated as verbal admission of the accused through The duty of the court to appoint a counsel de officio
the testimony of the persons who heard it or who when the accused has no legal counsel of choice
conducted the investigation of the accused (People and desires to employ the services of one is
of the Philippines v. Molas G.R. Nos. 97437-39, mandatory only at the time of arraignment (Sec. 6
February 5, 1993). Rule 116).
The assisting lawyer, by his failure to inform Consequence of denial of right to counsel: In
appellant of the latter's right to remain silent, by his Sps. Telan v. Court of Appeals (G.R. No. 95026,
"coming and going" during the custodial October 4, 1991), the Court held that an accused
investigation, and by his abrupt departure before was deprived of his right to counsel when he
the termination of the proceedings, can hardly be retained the services of a person who
the counsel that the framers of the 1987 misrepresented himself as a lawyer. Retrial was
Constitution contemplated when it added the ordered on the ground of denial of constitutional
modifier "competent" to the word "counsel." Thus, right to counsel.
the statement signed by the accused is still
inadmissible because the lawyer should assist his
client from the time the confessant answers the first Offended party cannot waive assistance of
question asked by the investigating officer until the counsel
signing of the extrajudicial confession (People of
the Philippines v. Morial, G.R. No. 128177, August Reason: The offended party can only intervene in
15, 2001). the case if “by counsel.” If the offended party
cannot afford a private prosecutor, the public
prosecutor can represent him.
A person under investigation has the right to be Right to testify as witness in his own behalf :
aided by a counsel “preferably of his choice”. The This is a waivable right. A denial of the defendant’s
word “preferably” does not convey the message right to testify in his behalf would constitute an
that the choice is exclusive so as to preclude other unjustifiable violation of his constitutional right.
equally competent and independent attorneys
handling the case, otherwise, the tempo of a

American Rule – If the accused testifies, he may be right against self-incrimination. He may NOT on
cross-examined but only on matters covered by his cross examination refuse to answer any question
direct examination (Section 1[d], Rule 115), on the ground that the answer that he will give, or
the evidence he will produce would have the
tendency to incriminate him for the crime with which
English Rule – In contrast to an accused, an he is charged. But he MAY refuse to answer any
ordinary witness can be cross-examined as to any question incriminating him for an offense DISTINCT
matter stated in the direct examination or from that for which he is charged.
connected therewith (Section 6, Rule 132).
Incriminating Question
Failure of the accused to testify is not taken against That which may subject him to penal liability
him but failure to produce evidence in his behalf is
considered against him.
Scope covered by the right: The privilege of the
accused to be exempt from testifying as a witness
Right to be exempt from being compelled to be
involves a prohibition against testimonial
a witness against himself: This is a waivable
compulsion only and the production by the accused
right.
of incriminating documents, and articles demanded
from him.
Right against self-incrimination: The accused is

protected under this rule from questions which tend It does not cover examination of his body as
to incriminate him, that is, which may subject him to evidence, when it may be material:
penal liability.
1. Physical examination;
2. Examination of a rapist and the victim for
Note: The right may be waived by the failure of the gonorrhea is valid;
3. Examination of a woman for pregnancy charged
accused to invoke the privilege at the proper time,
with adultery is valid (Villaflor v. Summers, G.R.
that is, after the incriminating question is asked and
No. 15975, September 7, 1920);
before his answer. 4. Undergo ultraviolet light for examination of
presence of fluorescent powder dusted on
marked money used in buy-bust (People of the
Right of the accused v. right of an ordinary Philippines v. Tranca, G.R. No. 110357, August
witness: The ordinary witness may be compelled 17, 1994).
to take the witness stand and claim the privilege as
each question requiring an incriminating answer is
Furnishing of specimen of signature in a
shot at him, while an accused may altogether
falsification of document case is covered by the
refuse to take the witness stand and refuse to
right because writing is not purely a mechanical act
answer any and all questions.
for it involves the application of intelligence and
attention (Beltran v. Samson, G.R. No. 32025,
Note: However, if the accused testifies in his own
behalf, then he may be cross-examined as any
other witness. This is considered a waiver of his

The right does include cases covered by 3. Right not to be subjected to force or
Immunity statutes such as: violence or any other means which vitiate free will.
4. Right to have the evidence obtained in
1. R.A. No. 1379 – Forfeiture of Illegally violation of these rights rejected.
Obtained Wealth;
2. R.A. No. 749 – Bribery and Graft Cases.
After the case is filed in court:
Where Available: Not only in criminal but also in 1. Right to refuse to be a witness.
government proceedings, civil, administrative 2. Right to not have any prejudice whatsoever
proceedings where there is a penal sanction result to him by such refusal.
involved. 3. The right to testify on his own behalf subject
to cross-examination by the prosecution.
4. While testifying the right to refuse a specific
question which tends to incriminate him for some
When invoked: After the asking of a question and other crime.
before answering it.
Two types of Immunity

Rationale for protecting the right against self- Transactional
incrimination: Use Immunity
Immunity
1. Humanitarian reasons - to prevent the state
from using its coercive powers; Witness’ compelled
2. Practical reasons – the accused is more testimony and the fruits Witness immune from
likely to commit perjury thereof cannot be used prosecution of a crime
in subsequent to which his compelled
prosecution of a crime testimony relates.
Questions on past criminal liability for which he may against him.
still be prosecuted are covered by the right against
self-incrimination. If he cannot be prosecuted Witness can still be Witness cannot be
therefor, he may not invoke such right. prosecuted but the prosecuted at all.
compelled testimony
cannot be used against
DNA samples obtained from an accused in a him.
criminal case will not violate the rights against self-
incrimination. This privilege applies to evidence that
is “communicative” in essence taken under duress Effect of refusal of accused to testify:
(Herrera v. Alba, et al., G.R. No.148220, June 15,
2005, citing People of the Philippines v. Olvis, G.R. General Rule: Silence should not prejudice the
No. L-71092, September 30, 1987). accused.
Exception: Unfavorable inference is drawn when:
Rights of the accused in the matter of testifying 1. The prosecution has already established a
or producing evidence prima facie case, the accused must present proof
to overturn the evidence
Before the case: 2. The defense of the accused is an alibi and
he does not testify, the interference is that the
1. Right to be informed. alibi is not believable.
2. Right to remain silent and to counsel.

Right to confront and cross- examine the If a witness refuses to testify when required is in
witnesses against him at trial: This is a waivable contempt of court. The court may order a witness to
right. give bail or to be arrested.
Confrontation
The act of setting a witness face-to-face with the Purpose: To assure a full and unimpeded
accused so that the latter may make any objection opportunity for him to meet what in the end could
he has to the witness, and the witness may identify be a baseless suit or accusation.
the accused, and this must take place in the
presence of the court having jurisdiction to permit
the privilege of cross-examination. Processes which may be resorted to, to compel
the attendance of a person in court:
1. Subpoena (ROC, Rule 21);

Purpose: The primary purpose is to secure the
2. Subpoena duces tecum (ROC, Rule 21);
opportunity of cross-examination and the 3. Warrant of arrest;
secondary purpose is to enable the judge to 4. Contempt;
observe the demeanor of witnesses. 5. Perpetuation of testimony;
6. Modes of discovery.
By way of an exception to this rule, it is provided

In any criminal proceeding, the defendant enjoys
that either party may utilize as part of its evidence
the right to have compulsory process to secure the
the testimony of a witness who is deceased, out of
attendance of witnesses and the production of
the country or cannot with due diligence be found in
evidence in his behalf.
the Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial
or administrative, involving the same parties and
subject matter, the adverse party having had the Right to have a speedy, impartial and public
opportunity to cross-examine him (Rule 130, Sec. trial: This is a non-waivable right.
47).
The right to a speedy trial is intended to avoid

Right may be waived: When a party has had the oppression and to prevent delay by imposing on the
opportunity to cross-examine a witness but failed to courts and on the prosecution an obligation to
avail himself of it, he necessarily forfeits the right to proceed with reasonable dispatch.
cross-examine and the testimony given on direct
examination will be allowed to remain in the record
(People of the Philippines v. Caparas, G.R. No. L- Facts considered to determine if right to speedy
47988, February 20, 1981). trial has been violated:
Right to have compulsory process: This is a 1. Conduct of the parties (Martin v. Ver, G.R.
waivable right. This is the right of the accused to No. L-62810, July 25, 1983);
have a subpoena and/or a subpoena duces tecum 2. Length of the delay;
issued in his behalf in order to compel the 3. Reason for the delay;
4. The accused’s assertion or non-assertion of
attendance of witnesses and the production of
the right;
other evidence.
5. Prejudice to the accused resulting from the
delay.

Note: There is no violation of the right where the Time limit for the trial of criminal cases: Shall
delay is imputable to the accused (Solis v. Agloro, not exceed 180 days from the first day of trial.
A.M. No. 276-MJ, June 27, 1975). This is because
Exceptions:
when the accused resorted to such tactical
maneuvers, he waived his right to speedy trial 1. Those governed by the Rules on Summary
(People of the Philippines v. Jardin, G.R. No. L- Procedure; or
33037-42, August 17, 1983). 2. Where the penalty prescribed by law does
not exceed 6 months imprisonment or a fine of
PhP1,000 or both;
Remedies available to the accused when his 3. Those authorized by the Chief Justice of the
Right to a Speedy Trial is violated: SC.
1. Accused may file a motion to dismiss on the

ground of violation of right to speedy trial (Sec. 13, The time limits set by the Speedy Trial Act of 1998
R.A. No. 8493); do not preclude justifiable postponements and
2. Accused may file a petition for habeas delays when so warranted by the situation
corpus if the unreasonable delay of the trial (Domondon v. Sandiganbayan, G.R. No. 166606,
results to illegal restraint of his liberty (Abadia v. November 29, 2005).
Court of Appeal, G.R. No. 105597, September 23,
1994);
3. Accused would be entitled to relief in a Period for arraignment of the accused: Within
mandamus proceeding to compel the dismissal of Thirty (30) days from the filing of the information, or
the information (Esguerra v. De La Costa, G.R.
from the date the accused appealed before the
No. L-46039, August 30, 1938).
justice/judge/court in which the charge is pending,
whichever date last occurs.
Effect of dismissal for violation of accused’s
right to a speedy trial: Such dismissal is
equivalent to an acquittal. Any attempt to prosecute When shall trial commence after arraignment:
the accused for the same offense will violate his Within Thirty (30) days from arraignment,
constitutional right against being twice put in
jeopardy of punishment for the same offense
(Salcedo v. Mendoza, G.R. No. L-49375, February Impartial trial: Due process of law requires a
28, 1979). hearing before an impartial and disinterested
The Speedy Trial Act of 1998 (R.A. No. 8493) tribunal, and that every litigant is entitled to nothing
less than the cold neutrality of an impartial judge
(Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59,
March 31, 1973).
Duty of the court after arraignment of an
accused: The Court shall order a pre-trial To disqualify a judge on the ground of bias and
conference to consider the following: prejudice, the movant must prove such bias by
1. Plea bargaining; clear and convincing evidence (Webb v. People of
2. Stipulation of facts; the Philippines, G.R. No. 127262, July 24, 1997).
3. Marking for identification of evidence of parties; Public Trial
4. Waiver of objections to admissibility of evidence;
and One held openly or publicly; it is sufficient that the
5. Such other matter as will promote a fair and relatives and friends who want to watch the
expeditious trial.

proceedings are given the opportunity to witness

the proceedings. RULE 116
Exclusion of the public is valid when: ARRAIGNM ENT AND P LEA
1. Evidence to be produced is offensive to
decency or public morals (Sec. 13, Rule 119); How Jurisdiction Is Acquired
2. Upon motion of the accused (Sec. 21, Rule Civil cases Criminal cases
119).
Subject Law Law/penalty
matter
Rule on trial by publicity: The right of the
accused to a fair trial is not incompatible to a free Person Summons Arrest or
press. Pervasive publicity is not per se prejudicial to surrender
the right to a fair trial. To warrant a finding of
prejudicial publicity, there must be allegations and Issue Answer Plea
proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of
publicity (People of the Philippines v. SECTION 1. ARRAIGNMENT AND PLEA; HOW
Teehankee, .R. Nos. 111206-08, October 06, 1995). MADE
Right to appeal on all cases allowed by law and Arraignment

in the manner prescribed by law: This is a
waivable right. The right to appeal from a judgment The formal mode of implementing the constitutional
of conviction is fundamentally of statutory origin. It right of the accused to be informed of the nature of
the accusation against him.
is not a natural right and it may be denied by the
legislature as long as hearing is conducted except Where and how made:
the appellate jurisdiction of the Supreme Court
which Congress cannot remove. But if there is a 1. In open court where the complaint or
statutory grant of appeal, denial of the same is a information has been filed or assigned for trial;
violation of due process. However, there can be closed door trial in cases
of Rape or Child Abuse
Waiver of the right to appeal: The right to appeal
2. By the judge or clerk of court;
is personal to the accused and similarly to other
3. By furnishing the accused with a copy of the
rights of kindred nature, it may be waived either
complaint or information;
expressly or by implication. However, where the 4. Reading it in a language or dialect known to
death penalty is imposed, such right cannot be the accused;
waived as the review of the judgment by the 5. Asking accused whether he pleads guilty or
Supreme Court is automatic and mandatory (A.M. not guilty.
NO. 00-5-03-SC). 6. Both arraignment and plea shall be made of
record but failure to enter of record shall not
affect the validity of the proceedings.
Note: The SC in People of the Philippines v. Mateo
(GR No. 147678-87, June 7, 2004) ruled that the The prosecution may call on trial other witnesses
mandatory review of cases in which the death not mentioned in the complaint or information
penalty is imposed shall pass through an initial presented to the accused during arraignment.
review by the Court of Appeals.

Reasons: 5. Trial in absentia may be conducted only after

valid arraignment.
1. Presentation of witnesses against the
accused is at the sound discretion of the fiscal
2. Disclosure of witness might lead to threats If an information is amended in substance which
or danger to the life of such witness changes the nature of the offense, arraignment on
the amended information is MANDATORY, except
if the amendment is only as to form (Teehankee Jr.
The accused will still know the identity of the
v. Madayag, G.R. No. 103102, Mar. 06, 1992).
witnesses against him when they take the stand.
General rule: Arraignment must be made before

When arraignment is held within a shorter
period: the start of trial or before the prosecution presents
its case
1. When an accused is under preventive
detention, his case should be raffled within 3 days
from filing and accused shall be arraigned within Exception: Arraignment which was made after the
10 days from receipt by the judge of the records prosecution rested its case was considered a non-
of the case (R.A. No. 8493 Speedy Trial Act).
prejudicial error because:
2. Where the complainant is about to depart
from the Philippines with no definite date of return, 1. Counsel of the accused failed to object lack
the accused should be arraigned without delay of arraignment during trial
(R.A. No. 4908). 2. Counsel of the accused had full opportunity
3. Cases under R.A. No. 7610 (Child Abuse to cross-examine the witnesses
Act), the trial shall be commenced within 3 days In other words, there was no need for the
from arraignment. arraignment as the act of the accused of
4. Cases under the Dangerous Drugs Act. participating in the trial implies that he understood
5. Cases under SC AO 104-96, i.e., heinous
the nature and cause of accusation against him
crimes, violations of the Intellectual Property
Rights law, these cases must be tried (People of the Philippines v. Atienza, G.R. No. L-
continuously until terminated within 60 days from 3001, June 17, 1950; People of the Philippines v.
commencement of the trial and to be decided Cabale, G.R. Nos. 73249-50, May 8, 1990).
within 30 days from the submission of the case.
Plea
Rules on arraignment:
Pertains to the matter which the accused, on his
1. Generally, judgment is void if accused has not
arraignment, alleges in answer to the charge
been validly arraigned.
against him.
2. If accused went into trial without being arraigned,
subsequent arraignment will cure the error Period to plea
provided that the accused was able to present
evidence and cross-examine the witnesses of the 1. When the accused is under preventive
prosecution during trial. detention: His case shall be raffled and its
3. Accused is presumed to have been validly records transmitted to the judge to whom the
arraigned in the absence of proof to the contrary. case was raffled within 3 days from the filing of
4. Accused must personally appear during the information or complaint and the accused
arraignment and enter his plea (counsel cannot arraigned within 10 days from the date of the
enter plea for accused). raffle. The pre-trial conference of his case shall
be held within 10 days after arraignment;

2. When the accused is not under 2. When the accused did not fully understand
preventive detention: Unless a shorter period is the meaning and consequences of his plea
provided by special law or Supreme Court circular, (People of the Philippines v. Lizarte, G.R. No. L-
the arraignment shall be held within 30 days from 43291, May 11, 1935);
the date the court acquires jurisdiction over the 3. Where the information is insufficient to
person of the accused. The time of the pendency sustain conviction of the offense charged (People
of a motion to quash, or for bill of particulars, or of the Philippines v. Lopez, G.R. No. 1063,
other causes justifying suspension of the November 29, 1947) ;
arraignment, shall be excluded in computing the 4. Where the information does not charge an
period. offense, any conviction thereunder being void
(Cadimas v. Director of Prisons, G.R. No. L-9725,
October 19, 1955);
When should a plea of not guilty be entered: 5. Where the court has no jurisdiction
1. When the accused so pleaded (Regalado, (Cadimas v. Director of Prisons, supra.)
p.483);
2. When he refuses to plead (Sec. 1[3], Rule Presence of the offended party: The private
116); offended party shall be required to appear in the
3. Where in admitting the act charged, he sets arraignment for the purpose of:
up matters of defense (US v. Kelly, G.R. No.
12109, December 1, 1916) or with lawful 1. Plea bargaining,
justification (US v. Betiong, G.R. No. 1185, April 2. Determination of civil liability and
14,1903); 3. Other matters requiring his presence.
4. When he enters a conditional plea of guilty
(People of the Philippines v. Sabilul, G.R. No.
3765, June 21, 1951); In case of failure of the offended party to appear
5. When the plea is indefinite or ambiguous despite due notice, the court may allow the
(People of the Philippines v. Strong, G.R. No. L- accused to enter a plea of guilty to a lesser offense
38626, March 14, 1975) which is necessarily included in the offense
charged with the conformity of the trial prosecutor
Generally, an unconditional plea of guilt admits of alone (Sec. 1[f] Rule 116).
the crime and all the attendant circumstances
alleged in the information (People of the Philippines
v. Perete, G.R. No. L-15515, April 29, 1961) The judge has no obligation to point out that an
including the allegations of conspiracy (People of information is duplicitous or to point out any other
the Philippines v. Pagal, G.R. No. L-32040, October defect in an information during the arraignment.
25, 1977) and warrants of judgment of conviction The obligation to move to quash a defective
without need of further evidence (People of the information belongs to the accused, whose failure
Philippines v. Acosta, 98 Phil. 642) to do so constitutes a waiver of the right to object
(People of the Philippines v. Bartulay, G.R. No.
83696, December 21, 1990).
Plea of guilty is mitigating if it is made before
prosecution starts to present evidence.
Presumption that accused was arraigned: In
view of the presumption of regularity in the
Exceptions: performance of official duties, it can be presumed
1. Where the plea of guilty was compelled by that a person accused of a crime was duly
violence or intimidation (Camasura v. Provost arraigned in the absence of anything to indicate the
Marsha, G.R. No. L-874, March 13, 1947);

contrary (People of the Philippines v. Colman, G.R. him in Double Jeopardy (Sec. 7[c], Rule 117
Nos. L-6652-54, February 28, 1958).
After arraignment but before trial, the accused may
Exception: still be allowed to plead guilty to a lesser offense
after withdrawing his plea of not guilty. In this plea
When the offense charged is punishable by death of guilty to a lesser offense, no amendment of the
(People of the Philippines v. Alicando, G.R. No.
complaint or information is necessary (Sec. 2, Rule
117487, December 13, 1995).
116).
Note: A mere written manifestation is not a valid
plea.
DOJ Circular on consent of prosecutor: When
SECTION 2. PLEA OF GUILTY TO A LESSER
the penalty imposable for the offense charged is
OFFENSE
prision mayor or higher or a fine exceeding
Plea bargaining (in criminal cases) Php12,000, the trial prosecutor must secure the
consent in writing of the City/Provincial Prosecutor
A process whereby the accused and the or the Chief State Prosecutor (DOJ Circular No. 55,
prosecution work out a mutually satisfactory Mar. 11, 1996).
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 Note: A plea of guilty to a lesser offense after
of a multi-count indictment in return for a lighter
prosecution rests is allowed only when the
sentence than that for the graver charge (Black’s
prosecution does not have sufficient evidence to
Law Dictionary, 5th Ed., 1979, p. 1037).
establish guilt for the crime charged (People of the
Philippines v. Villarama, G.R. No. 99287, June 23,
1992).
Ordinarily, plea-bargaining is made during the pre-
trial stage of the criminal proceedings. However,
the law still permits the accused sufficient SECTION 3. PLEA OF GUILTY TO CAPITAL
opportunity to change his plea thereafter. The rules OFFENSE; RECEPTION OF EVIDENCE
allow such a plea only when the prosecution does
not have sufficient evidence to establish guilt of the When the accused pleads guilty to a capital offense,
crime charged (People of the Philippines v. the court shall:
Valderama, G.R. No. 99287, June 23, 1992)
1. Conduct a searching inquiry into the:
a. Voluntariness of the plea; and
b. Full comprehension of the consequences of
An accused may enter a plea of guilty to a lesser his plea;
offense. Provided, that there is 2. Require the prosecution to prove his guilt
and the precise degree of his culpability;
1. Consent of the offended party and 3. Ask the accused if he desires to present
2. The prosecutor to the plea of guilty evidence in his behalf and allow him to do so if he
3. To a lesser offense which is necessarily desires. However, the defendant, after pleading
included in the offense charged. guilty, may not present evidence as would
exonerate him completely from criminal liability
If the accused entered a plea to a lesser offense such as proof of self-defense.
without the consent of the offended party and the
prosecutor and he was convicted, his subsequent
conviction of the crime charged would not place

Searching Inquiry (People of the Philippines v.

Dayot, G.R. No. 88281, July 20, 1990)
Guilty Plea: non-capital v. capital: For non-
capital offenses, the reception of evidence is
merely discretionary on the part of the court. If the
The trial judge must satisfy himself that the information or complaint is sufficient for the judge to
accused, in pleading guilty, (1) is doing so
render judgment on a non-capital offense, he may
voluntarily, and (2) he, in so doing, is truly guilty,
do so. But if the case involves a capital offense, the
and (3) that there exists a rational basis for a reception of evidence to prove the guilt and degree
finding of guilt, based on his testimony. of culpability of the accused is mandatory.
It means more than merely informing the accused SECTION 5. WITHDRAWAL OF IMPROVIDENT
that he faces a jail term but also informing him the PLEA OF GUILTY
exact length of imprisonment under the law and the
certainty that he will serve time at the national
penitentiary or a penal colony.
Plea of Guilty
An unconditional admission of guilt, freely,

The judge must see to it that the accused is not voluntarily and made with full knowledge of the
under the false impression that a plea of guilty consequences and meaning of his act and with a
carries with it a lenient treatment or a lighter clear understanding of the precise nature of the
treatment because his admission shows remorse crime charged in the complaint or information
on his part. (People of the Philippines v. De Luna, G.R.
No.77969, June 22, 1989).
SECTION 4. PLEA OF GUILTY TO NON-

CAPIT AL OFFENSE; RECEPTION OF EVIDENCE, It must be of such nature as to foreclose the
DISCRETIONARY defendant’s right to defend himself from said
charge, leaving the court no alternative but to
impose the penalty fixed by law (People of the
Consequences of plea of guilty: As a rule, a Philippines v. Ng Pek, G.R. No. L-1895, October 2,
plea of guilty constitutes an unqualified admission 1948).
of the crime and of the attendant circumstances
alleged in the information and may thus be the
basis of a judgment without the need of evidence to Improvident Plea
prove the same. However, the court may, upon
It is a plea without information as to all the
motion, allow the presentation of evidence to prove
mitigating circumstances. circumstances affecting it; based upon a mistaken
assumption or misleading information or advice.
Failure to charge an offense (for both Capital and

Effect of improvident plea: The conviction will be
Non-Capital Offenses): Where the facts charged in
the information do not state an offense, no set aside if the plea of guilty is the sole basis for the
conviction thereon can be had notwithstanding the judgment. However, the court may validly convict
defendant’s plea of guilty. the accused if such conviction is supported by
adequate evidence of guilt independent of the plea

itself (People of the Philippines v. Derilo, G.R. No. imperative on the part of the court to consider in the
117818, April 18, 1997). appointment of counsel de officio, the gravity of the
offense and the difficulty of the questions likely to
Note: At any time before the judgment of
arise in the case vis-à-vis the ability and experience
conviction becomes final, the court may permit an of the prospective appointee.
improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty.
Counsel De Officio
The withdrawal of a plea of guilty is not a matter of He is a counsel appointed by the court to represent
right to the accused but of sound discretion to the and defend the accused in case he cannot afford to
trial court (People of the Philippines v. Lambrino, employ one himself.
G.R. No. L-10845, April 28, 1958).
Who may be appointed Counsel de Officio:

Effect of withdrawal: Setting aside of the
1. Such members of the bar in good standing
judgment of conviction and the re-opening of the
who can competently defend the accused;
case for new trial.
2. In localities where such members of the bar
are not available, any resident of the province of
good repute for probity and ability.
SECTION 6. DUTY OF THE COURT TO INFORM
ACCUSED OF HIS RIGHT TO COUNSEL
Note: A private prosecutor, who assisted the
prosecuting attorney in prosecution against one
defendant, is disqualified from acting as counsel de
Duties of the court when the accused appears
officio for the other defendants in the same case.
before it without counsel
1. It must inform the defendant that it is his

right to have an attorney before being arraigned; However, although the attorney appointed as
2. After giving him such information, the court counsel de officio had previously appeared as
must ask him if he desires the aid of an attorney; private prosecutor in the case, if it appears that the
3. If he desires and is unable to employ one,
accused were properly defended, the appointment,
the court must assign an attorney de officio to
if it be erroneous, is not a reversible error (People
defend him; and
4. If the accused desires to procure an of the Philippines v. Manigbas, G.R. No. L-10352-
attorney of his own, the court must grant him 53, Sept. 30, 1960).
reasonable time therefor.
SECTION 8. TIME FOR COUNSEL DE OFFICIO

Note: Failure to comply with this duty is a denial of TO PREPARE FOR ARRAIGNMENT
due process (People of the Philippines v. Holgado,
G.R. No. L-1990, March 15, 1950).
SECTION 7. APPOINTMENT OF COUNSEL DE What Constitutes “Reasonable Time”: It
OFFICIO depends on the circumstances surrounding the
case such as the gravity of the offense, complexity
Purpose: To secure to the accused, who is unable of the allegations, whether a motion to quash or a
to engage the services of an attorney of his own bill of particulars has to be filed, etc.
choice, effective representation by making it

Generally, a reasonable time to prepare for trial is 4041, August 30, 1952).
2-15 days.
What are alleged in a motion for the bill of
Generally, a reasonable time to prepare for particulars:
arraignment is 30 minutes to 1 hour.
1. The alleged defects in the complaint or
Note: Counsel for the accused must expressly information
demand the right to be given reasonable time to 2. Details desired by the accused to be
consult with the accused. Only when so demanded clarified
does denial thereof constitute reversible error and a
ground for new trial. It is not the office of the bill of particulars to:
SECTION 9. BILL OF PARTICULARS 1. Supply material allegation necessary to the
validity of a pleading.
Accused may, at or before arraignment, move for
2. Change a cause of action or defense stated
a bill of particulars to enable him to properly plead
in the pleading, or to state a cause of action or
and prepare for trial.
defense other than one stated.
3. Set forth the pleader’s theory of his cause of
action or a rule of evidence on which he intends
Purpose: In order for the accused to be fully to rely.
apprised of the true charges against them, and thus 4. Furnish evidentiary information whether
avoid any and all possible surprise, which might be such information consists of evidence which the
detrimental to their rights and interests (People of pleader proposes to introduce or of facts which
the Philippines v. Abad Santos, G.R. No. L-447, constitute a defense or offset for the other party
June 17, 1946). or which will enable the opposite party to
establish an affirmative defense not yet pleaded.
Like in civil cases, the bill of particulars here should Note: Rule 12 on Bills of Particulars applies by
be considered an integral part of the complaint or analogy to Bill of Particulars in Criminal
information which it supplements. Proceedings as provided in Sec. 9 of Rule 116.
The remedy against an indictment that fails to The filing of a motion for bill of particulars suspends
allege the time of commission of the offense with the period to file a responsive pleading. Upon the
sufficient definiteness is a motion for a bill of service of the bill of particulars, or after the notice of
particulars, not a motion to quash (Rocaberte v. denial of such motion, the movant must file his
People of the Philippines, G.R. No. 72994, January responsive pleading within the remaining period,
23, 1991). which shall not be less than 5 days (Sec. 5, Rule
13).
The failure to ask for a bill of particulars amounts to

a waiver of such right and it deprives him of the Purpose of the Bill of Particulars
right to object to evidence which could be lawfully
Criminal Cases Civil Cases
introduced and admitted under an information of
more or less general terms which sufficiently Enter a valid plea To file a responsive
charges the defendants with a definite crime pleading
(People of the Philippines v. Gutierrez, G.R. No. L-

Only the accused, and Either of the parties an unsound mental condition which effectively
not the offended party, that will file a renders him unable to fully understand the charge
can file a bill of responsive pleading against him and to plead intelligently thereto;
particulars as he will can ask for a bill of 2. There exists a valid prejudicial question;
enter his plea particulars and
3. A Petition for Review of the resolution of
To prepare for trial Not necessarily to the prosecutor is pending at the Department of
prepare for trial as the Justice or the Office of the President; provided
respondent can opt for that the period of suspension shall not exceed 60
the modes of days counted from the filing of the petition;
4. There are pending incidents such as:
discovery
a. A Motion to Quash
b. A Motion for Inhibition;
c.A Motion for Bill of Particulars
SECTION 10. PRODUCTION OR INSPECTION
OF MATERIAL EVIDENCE IN POSSESSION OF
PROSECUTION
RULE 117
M OT ION T O Q UASH
Right to Modes of Discovery
Right of the accused to move for the production of Section 1. TIME TO MOVE TO QUASH
material evidence in the possession of the
Motion to Quash
prosecution. It authorizes the defense to inspect,
copy or photograph any evidence of the A special pleading filed by the defendant before
prosecution in its possession after obtaining entering his plea, which hypothetically admits the
permission of the court. truth of the facts spelled out in the complaint or
information at the same time that it sets up a matter
which, if duly proved, would preclude further
However, the prosecutor is not required to deliver proceedings.
his entire file to defense counsel, but only to
Generally, other facts, such as matters of defense,
disclose evidence favorable to the accused that, if
which are not in the information should not be
suppressed, would deprive the defendant of a fair
considered.
trial (U.S. v. Agurs, 437 U.S. 97).
Exceptions: When the grounds invoked to quash
the information are
This right is also available during preliminary
1. Extinction of criminal liability,
investigation if it is indispensable to protect his 2. Prescription, and
constitutional right to life, liberty, and property 3. Former jeopardy. In these cases, additional
(Webb v. De Leon, et al., G.R. No. 121234, 121245, facts are allowed.
121297, August 23, 1995).
Additional facts not alleged in the information but

SECTION 11. SUSPENSION OF ARRAIGNMENT admitted or not denied by the prosecution may be
invoked in support of the motion to quash.
Grounds for suspension:
1. The accused appears to be suffering from

General Rule: The accused may move to quash Quashal v. Nolle Prosequi: The quashal of the
the complaint or information at any time before complaint or information is different from a nolle
entering his plea. presequi, although both have one result, which is
the dismissal of the case.
Exception: Instances where a motion to quash

may be filed after plea: A nolle prosequi is initiated by the prosecutor while
a quashal of information is upon motion to quash
1. Failure to charge an offense;
filed by the accused.
2. Lack of jurisdiction over the offense charged;
3. Extinction of the offense or penalty; A nolle prosequi is a dismissal of the criminal case
4. The defendant would be placed in double by the government before the accused is placed on
jeopardy. trial and before he is called to plead, with the
approval of the court in the exercise of its judicial
Right to file a motion to quash belongs only to the discretion. It partakes of the nature of a non-suit or
accused. There is nothing in the rules which discontinuance in a civil suit and leaves the matter
authorizes the court or judge to motu proprio initiate in the same condition in which it was before the
a motion to quash. commencement of the prosecution. It is not an
acquittal; it is not a final disposition of the case; and
it does not bar a subsequent prosecution for the
same offense.
The motion to quash is not a responsive pleading
as it is not addressed to the complainants but to the
court
Filing a motion to quash consequently results
in the Submission of the person of the accused
to the jurisdiction of the court
Demurrer to
Motion to Quash
Evidence
General Rule: Filing pleadings seeking affirmative
Filed before the Filed after the
relief, such as a motion to quash, require voluntary
defendant enters his prosecution has
appearance/surrender, and the consequent
plea rested its case
submission of one’s person to the jurisdiction of the
court. Questions on the jurisdiction over the person
Does not go into the Based upon the of the accused are deemed waived by the accused
merits of the case but inadequacy of the
when he files any pleading seeking an affirmative
is anchored on evidence adduced by relief.
matters not directly the prosecution in
related to the question support of the
of guilt or innocence of accusation
the accused Exception: In cases of pleadings whose prayer is
precisely for the avoidance of the jurisdiction of the
court, which only leads to a special appearance
Governed by Rule 117 Governed by Rule 119
and does not need to submit one’s person to the
of the Rules of of the Rules of
jurisdiction of the court such as:
Criminal Procedure Criminal Procedure
1. Motions to quash a complaint or information
on the ground of lack of jurisdiction over the
person of the accused;

2. Motions to quash a warrant of arrest. Omnibus Motion Rule

This is a consequence of the fact that it is the
very legality of the court process forcing the A motion attacking a pleading, order, judgment, or
submission of the person of the accused which is proceeding shall include all objections then
questioned (Miranda v. Tuliao, G.R. No. 158763, available, and all objections not so included shall
March 31, 2006). be deemed waived (Section 8, Rule 15).
SECTION 2. FORM AND CONTENTS Before plea: there is no omnibus motion rule. In
Sec. 8, Rule 15 of the Rules of Civil Procedure, all
grounds must be cited in the motion to dismiss,
Form and contents of a motion to quash otherwise it cannot be raised anymore. There is no
such similar provision in the Revised Rules of
1. In writing; Criminal Procedure. Thus, in a criminal action, the
2. Signed by the accused or his counsel; accused can file several motions to quash with
3. Shall specify distinctly the factual and legal different grounds before the arraignment.
grounds therefore.
The court shall consider no grounds other than Example: If the accused filed a motion to quash
those stated in the motion, except lack of based on lack of jurisdiction and said motion was
jurisdiction over the offense charged and when the denied by the court, the accused can still
information does not charge an offense. subsequently file another motion to quash based on
a different ground such as duplicity of suit.
Note: A motion to suspend the issuance of a

warrant of arrest should be considered as a motion Note: The rule is different with respect to the filing
to quash if the allegations therein are to the effect of motions to quash against a search warrant (See
that the facts charged in the information do not Sec. 14, Rule 126).
constitute an offense (People of the Philippines v.
Matondo, G.R. No. L-12873, February 24, 1961).
After Plea: the omnibus motion rule shall be
observed. It is clear from the above rule that the
Resolution of a Motion to Quash: A motion to accused may file a motion to quash an information
quash must be resolved before trial and cannot before entering a plea or before arraignment.
defer the hearing and determination of said motion Thereafter, no motion to quash can be entertained
until trial on the merits as it would impair the right of by the court except under the circumstances
the accused to speedy trial. mentioned in Section 8 (now Sec.9) of Rule 117
which adopts the omnibus motion rule (People of
the Philippines v. Nitafan, G.R. Nos. 107964-66,
February 1, 1999).
It may also be resolved at the preliminary
investigation since the investigating officer has the SECTION 3. GROUNDS (NOT-JJ-FAME-PA)
power to either dismiss the case or bind the
accused over for trial by the proper court, 1. That the facts charged do not constitute an
depending on its determination of lack or presence offense;
of probable cause. 2. That the court trying the case has no
jurisdiction over the offense charged;

3. That the court trying the case has no The fact that the allegations in the complaint or
jurisdiction over the person of the accused; information are vague or broad, is not generally a
4. That the officer who filed the information ground for a motion to quash, the remedy being to
had no authority to do so; file a motion for bill of particulars.
5. That it does not conform substantially to the
prescribed form;
6. That more than one offense is charged
except when a single punishment for various Rule on negative averments (See discussion on
offenses is prescribed by law; Sec. 9, Rule 110):
7. That the criminal action or liability has been
extinguished;
8. That it contains averments which, if true General Rule: When an exception or negative
would constitute a legal excuse or justification; allegation is not an ingredient of the offense and is
and a matter of defense, it need not be alleged.
9. 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. Exception: When the ingredients of the offense
cannot be accurately and clearly set forth if the
exemption is omitted, then the information must
Note: These grounds under Section 3, Rule 117 show that the accused does not fall within the
are exclusive in character. Accordingly, it was held exemptions.
that lack of preliminary investigation is not a ground
for a motion to quash, not only because it is not
stated by the rule as one of the grounds, but also Note: Where the information is void or charges an
because lack of preliminary investigation does not
offense that does not really exist, the presentation
impair the validity of the information, does not of evidence cannot validate said information
otherwise render it defective and does not affect
(People of the Philippines v. Asuncion, G.R. Nos.
the jurisdiction of the court over the case (People of 83837-42, April 22, 1992).
the Philippines v. Yutila, G.R. No. L-32791, January
27, 1981).
A. The facts charged do not constitute an B. Lack of Jurisdiction over the offense
offense: charged
The complaint must show on its face that if the
facts alleged are true, an offense has been
C. Lack of Jurisdiction over the person of
committed. It must state explicitly and directly every
the accused
fact and circumstance necessary to constitute an
offense. D. Want of authority of officer filing the
information
The test to determine if the facts charged constitute

an offense is to determine whether or not all the Unauthorized filing of information when the:
essential elements of the crime have been alleged. 1. Officer filing is irregularly appointed. It does
In this examination, matters aliunde are not not necessarily invalidate the information if he
considered (Domingo v. Sandiganbayan, G.R. No. may be considered a de facto officer;
109376, January 20, 2000). 2. Officer is disqualified from appointment to
such position. The information is invalid and the
court does not acquire jurisdiction to try the

accused thereon (Villa v. Banez, G.R. No. L-4313, 4. By absolute pardon;

March 20, 1951); 5. By prescription of the crime;
3. Officer filed the information without the 6. By prescription of the penalty; and
approval by the head/Chief prosecutor (Sec. 4, 7. By the marriage of the offended woman, as
Rule 112); provided in Art. 344, RPC.
4. Information is filed without the complaint in 8. By pardon or express consent of the
cases involving private crimes. offended party to the accused in some private
crimes in Art 344, RPC.
An infirmity in the information caused by the lack of

authority of the officer signing it cannot be cured by Note: Where the last day of the prescriptive period
silence, acquiescence, or even by express consent. for filing an information is a Sunday or legal holiday,
An invalid information is no information at all. No the information can no longer be filed on the
criminal proceeding may prosper therefrom, thus, it next working day. The remedy is for the fiscal or
is subject to quashal (Romualdez v. prosecution to file the information on the last
Sandiganbayan, G.R. Nos. 143618-41, July 30, working day before the criminal offense prescribes
2002). (Yapdiangco v. Buencamino, G.R. No. L-28841,
June 24, 1983).
Ratio: Strict Construction of the Law
E. Complaint or Information does not
conform to the prescribed form H. That it contains averments, which if true,
It is sufficient if the complaint or information states would constitute a legal excuse or
the essential elements which constitute the offense justification
as required in the statute and it is not necessary to Examples are the averments of facts constituting:
follow the exact language of the statute.
1. Justifying circumstances;
2. Exempting Circumstances;
3. Absolutory causes.
If such formal defects are properly and opportunely
raised, an amendment of the complaint or
I. Double Jeopardy
information may be ordered by the court under Rule
See discussions under Rule 117, Sec. 7
117, Sec. 4.
F. Duplicity of Offenses Charged
See discussions on Rule 110, Sec. 13. SECTION 4. AMENDMENT OF COMPLAINT OR
INFORMATION
G. The Criminal Action or liability has been 1. If an alleged defect in the complaint or
extinguished information, which is the basis of a motion to
quash, can be cured by amendment, the court
shall order the amendment instead of quashing
Grounds for Extinction of Criminal Liability the complaint or information. If, after the
(Article 89, RPC) amendment, the defect is still not cured, the
motion to quash should be granted.
1. By the death of the convict, as to personal 2. If the motion to quash is based on the
penalties; and as to pecuniary penalties, liability ground that the facts charged do not constitute an
therefore is extinguished only when the death offense, the prosecution shall be given by the
of the offender occurs before final judgment; court an opportunity to correct the defect by
2. By service of the sentence; amendment.
3. By amnesty;

In both instances, the motion to quash shall be period.

granted if:
a. If such order is made, and the accused is in
1. The prosecution fails to make the custody, he shall not be discharged unless
amendment, or admitted to bail.
2. The complaint or information still suffers b. If such order is not made, or if having been
from the same defect despite amendment. made, another information is not filed within
the time specified in the order, or within such
time as the court may allow, the accused, if in
Note: When the original complaint states a cause custody, shall be discharged therefrom, unless
of action, but does it so imperfectly, and afterwards he is also in custody for some other charge.
an amended complaint is filed, correcting the defect,
the plea of prescription will relate to the time of the
filing of the original complaint. 2. If the motion to quash is sustained upon any of
the following grounds:
a. That a criminal action or liability has been
extinguished;
There is nothing in the rules which authorizes the b. That it contains averments which, if true,
court or judge to motu proprio initiate a motion to would constitute a legal excuse or justification;
quash if no such motion was filed by accused or
(People of the Philippines v. Nitafan, G.R. Nos. c.That the accused has been previously
107964-66, February 1, 1999). convicted or acquitted of the offense charged.
The court must state, in its order granting the

Except: Motion to quash based on lack of motion, the release of the accused if he is in
jurisdiction which may be raised or considered by custody or the cancellation of his bond if he is on
the court motu proprio (Rosa Uy v. Court of bail.
Appeals, G.R. No. 119000, July 28, 1997).
3. If the ground upon which the motion to quash was

SECTION 5. EFFECT OF SUSTAINING THE sustained is that the court has no jurisdiction over
MOTION TO QUASH the offense or over the person of the accused, the
better practice is for the court to remand or
forward the case to the proper court, not to quash
Effects if court sustains the Motion to Quash the complaint or information.
1. If the ground of the motion is either:

a. That the facts charged do not constitute an Procedure if Motion to Quash is denied:
offense; or 1. Accused should plead;
b. That the officer who filed the information 2. Accused should go to trial without prejudice
had no authority to do so; or to the special defenses he invoked in the motion;
c.That it does not conform substantially to the 3. Appeal from the judgment of conviction, if
prescribed form; or any, and interpose the denial of the motion as an
d. That more than one offense is charged, error.
Then, the court may order that another Denial of Motion to Quash: An order denying a
information be filed or an amendment thereof be motion to quash is interlocutory and not
made, as the case may be, within a definite appealable. Appeal in due time, as the proper

remedy, implies a previous conviction as a result of The peril in which a person is put when he is
a trial on the merits of the case and does not apply regularly charged with a crime before a tribunal
to an interlocutory order denying a motion to quash properly organized and competent to try him.
(Acharon v. Purisima, G.R. No. 23731, Feb. 26,
Double Jeopardy
1965).
Means that when a person is charged with an
If the court, in denying the motion to quash, acts
offense and the case is terminated either by
without or in excess of jurisdiction or with grave
abuse of discretion, then certiorari or prohibition will acquittal or conviction or in any other manner
lie. without the express consent of the accused, the
latter cannot again be charged with the same or
Sustaining Motion to Quash: On the other hand, identical offense.
if the motion to quash is granted, the order to that
Kinds of double jeopardy:
effect is a final order, not merely interlocutory, and
is, therefore, appealable at once. 1. No person shall be put twice in jeopardy for
the same offense (e.g. SAF-Nis-Nid)
The accused would not be placed in double 2. When an act punished by a law and an
jeopardy because there is no arraignment yet and ordinance, conviction or acquittal under either
the dismissal was obtained with his express shall be a bar to another prosecution for the
consent. same act (Sec. 21, Art. III, 1987 Constitution)
The question to be passed upon by the appellate
court is purely legal so that should the quashal be Requisites for double jeopardy: A previous case
found incorrect, the case would have to be must be filed and must contain the following:
remanded to the court of origin for further
proceedings to determine the guilt or innocence of 1. The complaint or information or other
the accused. formal charge was sufficient in form and
substance to sustain a conviction and the court
SECTION 6. ORDER SUSTAINING THE MOTION had jurisdiction;
TO QUASH NOT A BAR TO ANOTHER 2. The accused had been arraigned and the
PROSECUTION accused had entered a valid plea; and
3. There was a final judgment of conviction or
An order sustaining the motion to quash is not a acquitted or the case was dismissed without his
bar to another prosecution for the same offense, express consent;
unless: Then a subsequent complaint or information was
filed containing a crime that is: (SAF-Nis-Nid)
1. The motion was based on the ground that
the criminal action or liability has been a. The same offense; or
extinguished; and b. An attempt to commit the said offense; or
2. That the accused has been previously c.A frustration of the said offense; or
convicted or acquitted of the offense charged, or d. Any offense which necessarily includes the
the case against him was dismissed or otherwise first offense charged.
terminated without his express consent. e. Any offense which necessarily included the
first offense charged.
SECTION 7. FORMER CONVICTION OR
ACQUITTAL; DOUBLE JEOPARDY Note: The discharge of a defendant on a
preliminary investigation is not an adjudication in
Jeopardy
his favor as will bar subsequent prosecution for the
offense. This is because, a preliminary investigation

is not a trial and does not have for its object that of
determining definitely the guilt of the accused.
Exception: When a dismissal, even with the
Furthermore, the accused has not yet been
arraigned. express consent of the accused, is tantamount to
acquittal such as:
1. Dismissal based on a demurrer to
Requisites to raise double jeopardy: evidence (insufficiency of evidence given by
prosecution) filed by the accused after the
1. First jeopardy must have attached; prosecution has rested ;
2. First jeopardy must have been terminated; 2. Dismissal due to the denial of accused’s
3. The second jeopardy must be for the same right to speedy trial and disposition of the case.
offense or the second offense includes or is (Condrada v. People of the Philippines, G.R. No.
necessarily included in the offense charged in the 141646, February 28, 2003; Caes v. Intermediate
first information or is an attempt or frustration Appellate Court, G.R. No. 74989-90, November 6,
thereof. 1989).
Dismissal v. Acquittal: Acquittal is always based If an act is punished by a law and an ordinance,
on the merits, that is, the defendant is acquitted even if they are considered as different offenses,
because the evidence does not show defendant’s conviction or acquittal under either shall constitute
guilt beyond reasonable doubt. a bar to another prosecution for the same act (Sec.
21, Article III, 1987 Philippine Constitution).
Dismissal does not decide the case on the merits or

that the defendant is not guilty. If a single act is punished by two different
provisions of law or statutes, but each provision
requires proof of an additional fact which the other
Even if the decision of acquittal was erroneous, the does not so require, neither conviction nor acquittal
prosecution still cannot appeal the decision as it in one will bar a prosecution for the other (Perez v.
would put the accused in double jeopardy. Court of Appeals, G.R. No. 80838, Nov. 29, 1988).
Dismissal with express consent: Express Tests for determining whether the two offenses
consent to a provisional dismissal is given either are identical: There is identity between two
viva voce or in writing. It is a positive, direct, offenses when the second offense:
unequivocal consent requiring no inference or
1. Is exactly the same as the first;
implication to supply its meaning (People of the
2. Is an attempt to or frustration of the first;
Philippines v. Lacson, G.R. No. 149453, October 7, 3. Is necessarily included in the first; or
2003). 4. Necessarily includes the first and is
necessarily included in the offense charged in the
first information.
General Rule: A dismissal with the express
consent of the accused will not bar the prosecution
Exceptions to the 4th rule upon conviction for
of the same offense because such consent is
the first offense charged:
considered a valid waiver of his right against double
jeopardy (People of the Philippines v. Salico, G.R.
No. L-1610, October 12, 1949).

1. The graver offense developed due to actually an acquittal.

supervening facts arising from the same act or
omission constituting the former charge;
2. The facts constituting the graver charge Requisites:
became known or were discovered only after a
1. Express consent of the accused;
plea was entered in the former complaint or 2. Notice to the offended party.
information 3. Court granted the motion
3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor and
of the offended party; except when the offended Express consent: It must be positive, direct,
party failed to appear during the arraignment. unequivocal consent requiring no inference or
implication to supplying its meaning. The mere
Second offense necessarily includes the first inaction or silence of the accused or his failure to
offense: Whether the facts as alleged in the object to a provisional dismissal of the case does
second information, if proved, would have been not amount to express consent.
sufficient to sustain the former information, or from
such second information, the accused may have
been acquitted or convicted for the first information. When does it become permanent: If a case is
provisionally dismissed with the consent of the
prosecutor and the offended party, the failure to
In any of these instances, such period of the reinstate it within the given period will make the
sentence as may have been served by the accused dismissal permanent.
under the former conviction shall be credited
against and deducted from the sentence he has to
serve should he be convicted under the subsequent Period for reinstatement:
prosecution.
1. Offenses punishable by imprisonment not
exceeding 6 years = one year after issuance of
the order
SECTION 8. PROVISIONAL DISMISSAL 2. Offenses punishable by imprisonment of more
than 6 years = two years after issuance of the
order
General Rule: Where the case was dismissed
“provisionally” with the consent of the accused, he If no revival of the case is made within the
cannot invoke double jeopardy in another prescribed period, the dismissal shall be removed
prosecution therefor or where the case was from being provisional and becomes permanent.
reinstated on a motion for reconsideration by the
prosecution.
Note: The State may revive a criminal case beyond
the one-year or two-year periods, provided there is
Exceptions: Where the dismissal was actually an a justifiable necessity for the delay.
acquittal based on:
1. Lack or insufficiency of the evidence;
2. Denial of the right to speedy trial, hence, even if The case may be revived or re-filed even beyond
the accused gave his express consent to such the prescribed periods subject to the right of the
dismissal or moved for such dismissal, such accused to oppose the same on the ground of
consent would be immaterial as such dismissal is double jeopardy or that such revival or re-filing is

barred by the statute of limitations (People of the Motion to Suppress Evidence (Sec. 14, Rule
Philippines v. Lacson, G.R. No. 149453, October 7, 126), Motion for Determination of Probable Cause
2003). (Rule 126);
3. It is that period when an accused may
invoke the presumption of innocence and be
assured that he need not say or do anything else
How to revive a case:
(Old rule on pre-trial where the same was at the
1. Re-filing of the information; option of the Accused).
2. Filing a new information for the same
offense or one necessarily included in the original Pre-Trial in
offense charged. Pre-Trial in Criminal
Civil Cases Cases
SECTION 9. FAILURE TO MOVE TO QUASH OR The accused is

TO ALLEGE ANY GROUND THEREFOR merely required to
All grounds for a motion to quash are waived if not sign the written
seasonably raised before he pleads, except: agreement arrived at
in the pre-trial
1. When the information does not charge an conference, if he is in
offense; The presence of the conformity therewith.
2. Lack of jurisdiction of the court; defendant is required,
3. Extinction of the offense or penalty; and unless he is duly
4. Double jeopardy. represented at the
Unless otherwise
pre-trial conference by
required by the court,
his counsel with the
his presence therefore
RULE 118 requisite authority to
is not indispensable.
enter into a
P RE -T RIAL compromise
agreement, failing in
SECTION 1. PRE-TRIAL; M ANDATORY IN either of which the Note: This is aside
CRIMINAL CASES case shall proceed as from the consideration
if the defendant has that the accused may
been declared in waive his presence at
default. all stages of the
Purpose of pre-trial criminal action, except
1. To simply the issues of the case at the arraignment,
2. To shape up the testimonies and promulgation of
documents to presented at trial judgment or when
3. To generally clear and organize the desk of required to appear for
the parties for the trial identification.
Importance of pre-trial
1. It covers not only that period technically

defined in Rule 118 but also that period from filing
of the information up to the actual conduct of trial;
2. It encompasses many legal remedies such
as the filing of Motion to Quash (Rule 117),

The presence of the 1. Plea bargaining

private offended 2. Stipulation of facts
party is not required 3. Marking for identification of evidence
at the pre-trial. 4. Waiver of objections to admissibility of
The presence of the Instead, he is required evidence
5. Modification of the order of trial if the
plaintiff is required at to appear at the
accused admits the charge but interposes a
the pre-trial unless arraignment of the lawful defense (reverse trial)
excused therefrom for accused for purposes 6. Other matters that will promote a fair and
valid cause or if he is of plea bargaining, expeditious trial of the civil and criminal aspects
represented therein by determination of civil of the case.
a person fully liability, and other
authorized in writing to matters requiring his
perform the acts presence. The court shall, after arraignment and within 30
specified in Sec 4, days from the time the court acquires jurisdiction
Rule 18. over the person of the accused, unless a shorter
period is provided for by special laws or circular of
Should he fail to
the Supreme Court, order a pre-trial.
appear therein, and
Absent such the accused offers to
justification, the case plead guilty to a lesser
may be dismissed with offense necessarily Plea Bargaining
or without prejudice. included in the offense The process whereby the accused, the offended
charged, he may be party and the prosecution work out a mutually
allowed to do so with satisfactory disposition of the case subject to court
the conformity of the approval. It usually involves the defendant’s
trial prosecutor alone. pleading guilty to a lesser offense or to only one or
The Rules do not some of the counts of a multi-count indictment in
require the filing of a return for a lighter sentence than that for the graver
pre-trial brief in charge.
A pre-trial brief is criminal cases but only
required with the require attendance at
particulars and the a pre-trial conference Plea bargaining is to be encouraged (Speedy Trial
sanctions provided by to consider the Act of 1998).
Sec. 6, Rule 18. matters stated in Rule on plea bargaining in R.A. No. 9165 or the
Sec.2, Rule 118 Comprehensive Dangerous Drugs Act
(Regalado, pp.519-
520). Any person charged under any provision the
Comprehensive Dangerous Drugs Act regardless
of the imposable penalty shall not be allowed to
Mandatory pre-trial in criminal cases: In all avail of the provision on plea-bargaining (Sec. 23,
cases cognizable by the Municipal Trial Court, RA 9165).
Municipal Circuit Trial Court, Metropolitan Trial
Court, Regional Trial Court, and the
Sandiganbayan, the justice or judge shall, after SECTION 2. PRE-TRIAL AGREEMENT
arraignment, order a pre-trial conference to
Pre-Trial Agreement
consider the following:

All agreements or admissions made or entered into Agreements covering the matters referred to in
during the pre-trial conference shall be reduced to Section 1 of Rule 118 shall be approved by the
writing and signed by the accused and counsel, court.
otherwise the same shall not be used in evidence
against the accused.
SECTION 3. NON-APPEARANCE AT PRE-TRIAL
CONFERENCE
Requisites before the pre-trial agreement can
be used as evidence:
Non-appearance at Pre-Trial Conference: Where
1. They are reduced to writing;
2. The pre-trial agreement is signed by the counsel for the accused or the prosecutor does not
accused and his counsel. appear at the pre-trial conference and does not
offer an acceptable excuse for his/her lack of
cooperation, the pre-trial justice or judge may
The agreements in relation to matters referred to in impose proper sanctions or penalties (Section 4,
Section 2 hereof is subject to the approval of the Speedy Trial Act).
court: Provided, that the agreement on the plea of
the accused to a lesser offense may only be
revised, modified, or annulled by the court when the The sanctions or penalty may be in the form of
same is contrary to law, public morals, or public reprimand, fine or imprisonment. Inasmuch as this
policy (Sec. 3, Speedy Trial Act of 1998).
is similar to indirect contempt of court, the penalty
for indirect contempt may be imposed.
Note: Provided, that the agreement on the plea of

the accused should be to a lesser offense The accused is not the one compelled to appear,
necessarily included in the offense charged (Sec.4,
but only the counsel for the accused or the
Circular 38-98).
prosecutor. The principal reason why accused is
not included in the mandatory appearance is the
fear that to include him is to violate his
The requirement in Section 2 is intended to constitutional right to remain silent.
safeguard the right of the accused against
improvident or unauthorized agreements or
admissions which his counsel may have entered SECTION 4. PRE-TRIAL ORDER
into, or which any person may ascribe to the
accused without his knowledge, as he may have
waived his presence at the pre-trial conference
Pre-Trial Order: After the pre-trial conference, the
(People of the Philippines v. Uy, G.R. No. 128046,
March 7, 2000). court shall issue an order reciting the actions taken,
the facts stipulated, and evidence marked. (Section
5, Speedy Trial Act).
The omission of the signature of the accused and

his counsel, as mandatorily required by the rules,
Purposes:
renders the stipulation of facts inadmissible in
evidence. 1. Bind the parties to issues raised therein;
2. Limit the trial to matters not disposed of;
3. Control the course of the action during trial.

Note: Thereafter, where a plea of not guilty is SECTION 1. TIME TO PREPARE FOR TRIAL
entered, the accused shall have at least fifteen (15)
Trial
days to prepare for trial which shall commence
within thirty (30) days from receipt of the pre-trial Examination before a competent tribunal according
order (Sec. 6, SC Circular No. 38-98). to the laws of the land, of the facts put in issue in a
case for the purpose of determining such issue.
After the pre-trial, the court issues an order reciting

actions taken, facts stipulated and evidence After a plea of not guilty is entered, the accused
marked, and thereafter the trial on the merits will shall have at least fifteen (15) days to prepare for
proceed on matters not disposed of during the pre- trial. The trial shall commence within 30 days from
trial. receipt of the pre-trial order.
Denial of the right to prepare is reversible error.

To prevent manifest injustice, however, the pre-trial The proper remedy from a judgment of conviction
order may be modified by the court, upon its own under such case is appeal and not certiorari nor
initiative or at the instance of any party. habeas corpus (Montilla v. Arellano, G.R. No.
123872, Jan. 30, 1998).
Dealing with the plea of an accused and the

burden of interposing a defense: If the accused SECTION 2. CONTINUOUS TRIAL UNTIL
TERMINATED; POSTPONEMENTS
pleads not guilty to the crime charged, he/she shall
state whether he/she interposes a negative or
affirmative defense.
Continuous trial system: Trial once commenced
shall continue from day to day as far as practicable
until terminated; but it may be postponed for a
A negative defense shall require the prosecution to
reasonable period of time for good cause.
prove the guilt of the accused beyond reasonable
doubt, while an affirmative defense may modify the
order of trial and require the accused to prove such
defense by clear and convincing evidence (Sec. 7, Limitation of the trial period: It shall in no case
par.2, Speedy Trial Act). exceed 180 days from the first day of the trial,
except as otherwise provided by the Supreme
Court. But, said limitation shall not apply where
Note: This disclosure order runs counter to the special laws or circular of the Supreme Court
provide for a shorter period of time. Cases below
right of the accused to be presumed innocent and
are the same with the instances when arraignment
the burden of proof (Article 111, Sec. 14). It would
also result in absurdity where the Accused pleads is made within a shorter period (See Sec. 1, Rule
116).
“not guilty” but maybe required to “prove his
innocence” if he interposes “an affirmative defense”. 1. Rules on Summary Procedure – must be
arraigned and tried immediately;
2. R.A. No. 4908 where the offended party is about
to depart from the Philippines without definite
RULE 119 date of return – arraignment without delay;
3. R.A. No. 7610 involving child abuse cases – must
T RIAL be tried within three (3) days from arraignment;

4. R.A. No. 9165 on Dangerous Drugs – must be prescribed by laws;

tried within 60 days and decision within 15 days 2. Maintain full control of the proceedings; and
from submission; 3. Effectively allocate and use time and court
5. Intellectual Property Code cases – trial within 60 resources to avoid court delays;
days and decision within 30 days from 4. Continuous trial on a weekly or other short-
submission of the case; term trial calendar at earliest possible time.
6. Heinous crime cases – trial within 60 days and
decision within 30 days from submission.
The non-appearance of the prosecution at the trial,
despite due notice, justified a provisional dismissal
Requisites before a trial can be put-off on or an absolute dismissal depending upon the
account of the absence of a witness: circumstances.
1. That the witness is material and appears to Note: The court does not lose jurisdiction after the
the court to be so; trial period limit. The Judge, however, may be
2. That the party who applies has been guilty penalized with disciplinary sanctions.
of no neglect;
3. That the witnesses can be had at the time to
which the trial is deferred and incidentally that no
similar evidence could be obtained; SECTION 3. EXCLUSIONS
4. That an affidavit showing the existence of
the above circumstances must be filed.
Exclusions in computation of time within which
Remedies of accused where a prosecuting trial must commence: The following periods of
officer without good cause secures delay shall be excluded in computing the time
within which trial must commence:
postponements of the trial of a defendant
against his protest beyond a reasonable period 1. Any period of delay resulting from other
of time: proceedings concerning the accused, including
but not limited to the following:
1. Mandamus to compel a dismissal of the a. Delay resulting from an examination of the
information; physical and mental condition of the accused;
2. If he is restrained of his liberty, by habeas b. Delay resulting from proceedings with respect
corpus to obtain his freedom. to other criminal charges against the accused;
c. Delay resulting from extraordinary remedies
The SC adopted the continuous trial system as a against interlocutory orders;
d. Delay resulting from pre-trial
mode of judicial fact-finding and adjudication
proceedings; provided, that the delay does not
conducted with speed and dispatch so that trials exceed thirty (30) days;
are held on the scheduled dates without e. Delay resulting from orders of inhibition,
postponement, the factual issues for trial well- or proceedings relating to change of venue of
defined at pre-trial and the whole proceedings cases or transfer from other courts;
terminated and ready for judgment within 90 days f. Delay resulting from a finding of the existence
from the date of initial hearing, unless for of a prejudicial question; and
meritorious reasons an extension is permitted. g. Delay reasonably attributable to any period, not
to exceed thirty (30) days, during which any
proceeding concerning the accused is actually
The system requires that the Presiding Judge: under advisement.
2. Any period of delay resulting from the
1. Adhere faithfully to the session hours absence or unavailability of an essential witness;

1. Whether or not the failure to grant a continuance

in the proceeding would likely make a
Note: A witness shall be considered absent continuation of such proceeding impossible or
when his whereabouts are unknown or cannot be result in a miscarriage of justice;
determined with due diligence. He shall be 2. Whether or not the case taken as a whole is so
considered unavailable if his whereabouts are novel, unusual and complex, due to the number
known but his presence for trial cannot be of accused or the nature of the prosecution, or
obtained with due diligence. that it is unreasonable to expect adequate
preparation within the periods of time established
3. Any period of delay resulting from the therein.
mental incompetence or physical inability of the
accused to stand trial;
4. If the information is dismissed upon In addition, no continuance under Section 3(f) of
motion of the prosecution and thereafter a this Rule shall be granted because of congestion of
charge is filed against the accused for the same the court's calendar or lack of diligent preparation
offense, any period of delay from the date the or failure to obtain available witnesses on the part
charge was dismissed to the date the time of the prosecutor.
limitation would commence to run as to the
subsequent charge had there been no previous
charge;
5. A reasonable period of delay when the SECTION 5. TIME LIMIT FOLLOWING AN
accused is joined for trial with a co-accused over ORDER FOR NEW TRIAL
whom the court has not acquired jurisdiction, or,
The trial shall commence within 30 days from
as to whom the time for trial has not run and no
notice of the order for a new trial becomes final.
motion for separate trial has been granted;
6. Any period of delay resulting from a
continuance granted by any court motu propio, or
on motion of either the accused or his counsel, or If the period becomes impractical due to
the prosecution, if the court granted the unavailability of witnesses and other factors, the
continuance on the basis of its findings set forth court may extend it but not to exceed 180 days
in the order that the ends of justice served by from notice.
taking such action outweigh the best interest of
the public and the accused in a speedy trial (Sec.
9, cir. 38-98).
SECTION 6. EXTENDED TIME LIMIT
SECTION 4. FACTORS FOR GRANTING

CONTINUANCE SECTION 7. PUBLIC ATTORNEY’S DUTIES
Continuance Where accused is imprisoned: Public Attorneys

The postponement of trial. Granting of motion for referred to in this section are those attorneys of the
continuance is a matter of discretion on the part of Public Attorney’s Office of the Department of
court and not a matter of right. Justice who are assisting accused not financially
capable to have a counsel of their own. These
public attorneys enter their appearance in behalf of
the accused upon his request or that of his relative
The following factors, among others, shall be
or upon being appointed as counsel de officio by
considered by a court in determining whether to the court.
grant a continuance under Section 3(f) of this Rule:

It shall be his duty to do the following: 1. Private Defense Counsel – fine not
exceeding P20,000 + criminal sanctions, if any.
1. Promptly undertake to obtain the presence 2. Counsel de officio, Public Attorney or
of the prisoner for trial or cause a notice to be Prosecutor – fine not exceeding PhP5,000 +
served on the person having custody of the criminal sanctions, if any.
prisoner requiring such person to so advise the 3. Defense Counsel or Prosecutor – denial of
prisoner of his right to demand trial; the right to practice before the court trying the
2. Upon receipt of that notice, the custodian of case for a period not exceeding 30 days +
the prisoner shall promptly advise the prisoner criminal sanctions, if any.
of the charge and of his right to demand trial. If at
any time thereafter, the prisoner informs his
custodian that he demands such trial, the latter SECTION 9. REMEDY WHERE ACCUSED IS
shall cause notice to that effect to be sent NOT BROUGHT TO TRIAL WITHIN THE TIME
promptly to the public attorney; LIMIT
3. Upon receipt of such notice, the public
attorney shall promptly seek to obtain the The remedy of the accused is to file a motion to
presence of the prisoner for trial; dismiss the information on the ground of denial of
4. When the custodian of the prisoner receives his right to speedy trial. Failure of the accused to
from the public attorney a properly supported move for dismissal prior to trial shall constitute a
request for the availability of the prisoner for waiver of his right to dismiss under this section.
purposes of trial, the prisoner shall be made
available accordingly (Sec. 12, Circ. 38-98).
The accused shall have the burden of proving the
SECTION 8. SANCTIONS motion but the prosecution shall have the burden of
going forward with the evidence to establish the
Certain sanctions under Section 8 may be imposed exclusion of time under Sec. 3 of this rule.
by the court whenever the private counsel for the
accused, the public attorney, or the prosecutor:
1. Knowingly allows the case to be set for trial The dismissal shall be subject to the rules on
without disclosing that a necessary witness would double jeopardy. So if the dismissal is with
be unavailable for trial; prejudice, the case cannot be revived anymore. But
2. Files a motion solely for delay which he if the dismissal is without prejudice, the revival of
knows is totally frivolous and without merit; the case is proper.
3. Makes a statement for the purpose
of obtaining continuance which he knows to be
false and which is material to the granting of a
continuance; or SECTION 10. LAW ON SPEEDY TRIAL NOT A
4. Willfully fails to proceed to trial without BAR TO PROVISION ON SPEEDY TRIAL IN THE
justification consistent with the provisions hereof. CONSTITUTION
Kinds:
SECTION 11. ORDER OF TRIAL
1. Criminal;
2. Administrative;
3. Contempt of court. Order of Trial
1. The prosecution shall present evidence
The Sanctions: to prove the charge and, in the proper case, the
civil liability;

2. The accused may present evidence to Reverse trial: When the accused admits the act or
prove his defense and damages, if any, arising omission charged in the complaint/information but
from the issuance of a provisional remedy in the interposes a lawful defense, the trial court may
case; allow the accused to present his defense first and
3. The prosecution and the defense may, in thereafter give the prosecution the opportunity to
that order, present rebuttal and sur-rebuttal
present its rebuttal evidence.
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue;
4. Upon admission of the evidence of the Refusal of the trial court to reverse the order of trial
parties, the case shall be deemed submitted for upon demand of the accused who pleads self-
decision unless the court directs them to argue defense as a defense is not a reversible error.
orally or to submit written memoranda;
5. When the accused admits the act or
omission charged in the complaint or information Note: Trial of an accessory can proceed without
but interposes a lawful defense, the order of trial
awaiting the result of the separate charge against
may be modified.
the principal. They are distinct from each other
(Vino v. People of the Philippines, G.R. No. 84163,
General Rule: The order in the presentation of Oct. 19, 1989).
evidence must be followed. The accused may not
be required to present his evidence first before the
prosecution adduces its own proof. SECTION 12. APPLICATION FOR EXAMINATION
OF WITNESS FOR ACCUSED BEFORE TRIAL
Exception: Where a reverse procedure was The accused may have his witness examined
conditionally in his behalf before trial upon motion
adopted without the objection of the defendant and
with notice to all other parties.
such procedure did not prejudice his substantial
rights, the defect is not a reversible error.
The motion must state:

A departure from the order of the trial is not 1. Name and residence of witness;
reversible error as where it was agreed upon or not 2. Substance of testimony;
seasonably objected to, but not where the change 3. Witness is so sick to afford reasonable
in the order of the trial was timely objected by the ground to believe that he will not be able to attend
defense. the trial or resides more than 100 kilometers and
has no means to attend the same, or other similar
circumstances exist that would make him
unavailable or prevent him from attending trial.
Where the order of the trial set forth under this
section was not followed by the court to the extent
of denying the prosecution an opportunity to SECTION 13. EXAMINATION OF DEFENSE
present its evidence, the judgment is a nullity WITNESS; HOW MADE
(People of the Philippines v. Balisacan, G.R. No. L-
26376, Aug. 31, 1966). If the court is satisfied that the examination of
witness is necessary as provided in Section 4, an
order shall be made and a copy served on the fiscal
at least 3 days before the scheduled examination.

Who should make the examination? The If the court is satisfied, upon proof or oath, that a
examination shall be taken before any judge or if material witness will not testify when so required, it
not practicable any member of the Bar in good may on motion of either party order the witness to
standing designated by the trial court, or by a lower post bail in such sum as may be deemed proper.
court designated by a court of superior jurisdiction Should the witness refuse to post such bail as
which issued the order. The examination shall required, the court may commit him to prison until
proceed even in the absence of the prosecutor he complies or is legally discharged after his
provided he was duly notified. testimony has been taken.
Deposition
It is the testimony of a witness taken upon oral Note: Even if the witness has been cited to appear
questions or written interrogatories, in open court, before a court sitting outside of the province in
but in pursuance of a commission to take testimony which he resides and the distance is more than one
issued by a court, or under a general law or court hundred (100) kilometers from his place of
rule on the subject, and reduced to writing and duly residence by the usual course of travel, he is still
authenticated, and intended to be used in bound by the subpoena. Rule 23 applies only in
preparation and upon the trial of a civil or criminal civil cases.
prosecution.
SECTION 15. EXAMINATION OF WITNESS FOR

Purpose of taking depositions: THE PROSECUTION
1. Greater assistance to the parties in

ascertaining the truth and checking and
preventing perjury; Examination of witness for the prosecution:
2. Provide an effective means of detecting and 1. The witness for the prosecution may be
exposing false, fraudulent claims and defenses; conditionally examined by the court where the
3. Make available in a simple, convenient and
case is pending if said witness is:
inexpensive way, facts which otherwise could not a. Too sick to appear at the trial; or
be proved except with greater difficulty; b. Has to leave the Philippines with no definite
4. Educate the parties in advance of trial as to date of return.
the real value of their claims and defenses 2. Such examination should be in the
thereby encouraging settlements; presence of the accused or in his absence after
5. Expedite litigation; reasonable notice to attend the examination has
6. Prevent delay;
been served on him.
7. Simplify and narrow the issues; 3. Examination of child witnesses is tackled
8. Expedite and facilitate both preparation and under the Rule on Examination of a Child Witness
trial. which took effect on December 15, 2000. (A.M.
No. 004-07-SC)
When should depositions be taken? As can be
gleaned from the foregoing, deposition/s in keeping Conditional examination of witness
with its nature as a mode of discovery should be
taken before and not during trial. Defense Prosecution
witness witness
Requirement 1. Witness is 1. Witness is

SECTION 14. BAIL TO SECURE APPEARANCE
sick sick
OF MATERIAL WITNESS

2. Witness If a separate trial is granted, the testimony of one

reside 100km accused imputing the crime to his co-accused is not
form the admissible against the latter, who had no
place of trial opportunity to cross examine the witnesses (People
of the Philippines v. Tanso, 105 Phil. 1289, April 30,
1. Judge of 1. Before the 1959). In joint trial, it would be admissible if the
proper court court where latter had the opportunity for cross-examination
the case is (People of the Philippines v. Carpio, G.R. No.
Who 2. Member of pending
examines the bar 46109 September 22, 1939).
3. Inferior
court SECTION 17. DISCHARGE OF ACCUSED TO BE
Notwithstandi Notwithstandin STATE WITNESS
ng the g the absence Motion to discharge should be made by the
absence of of the prosecution before resting its case.
Absence the accused, the
prosecutor, examination
the shall proceed
Note: The rule expressly allows the discharge of
examination
more than one defendant (People of the Philippines
shall proceed
v. Bacsa, G .R. No. L-11485, July 11, 1958).
SECTION 16. TRIAL OF SEVERAL ACCUSED

Requisites for discharge
1. Two or more persons are jointly charged

General Rule: When two or more persons are with a commission of an offense
jointly charged with an offense, they shall be tried 2. The prosecution files a motion to discharge
one or more, but not all, of the accused to be
jointly. This rule is so designed as to preclude a
discharged with their consent
wasteful expenditure of judicial resources and to
3. Prosecution shall present evidence and
promote an orderly and expeditious disposition of sworn statement of the proposed accused to be
criminal prosecutions. discharged state witness
4. Court shall ascertain whether the condition
in this Section if present
Exception: The court, upon motion of the fiscal or
of any of the defendants, may order a separate trial
Conditions to be met before an accused can be
for one or more accused. The granting of a
discharged as a state witness
separate trial when two or more defendants are
jointly charged with an offense is purely 1. Absolute necessity for the testimony of the
discretionary with the trial court. In the interest of accused whose discharge is requested;
justice, a separate trial may be granted even after
the prosecution has finished presenting its
“Absolute necessity” means that he alone has
evidence in chief (Joseph v. Villaluz, G.R. No. L-
45911, April 11, 1979). knowledge of the crime, and not when his
testimony would simply corroborate or otherwise
strengthen the evidence in the hands of the
prosecutor.

2. No other direct evidence available for the elsewhere. as stated in the

prosecution; information.
3. Testimony can be substantially
corroborated in its material points; The charges against
4. Accused does not appear to be the most No information may him shall be dropped
guilty; thus be filed against and the same
5. The accused need not be the least guilty the witness. operates as an
6. Accused has never been convicted of an acquittal.
offense involving moral turpitude.
7. The application for discharge is filed by the
prosecution before the defense has offered its
evidence. Any question against the order of the court to
discharge an accused to be used as state witness
must be raised in the trial court; it cannot be
Absence of any of the requisites for the discharge considered on appeal. Where there is, however, a
of a particeps criminis is a ground for objection to showing of grave abuse of discretion, the order of
the motion for his discharge, but such objection the trial court may be challenged in a petition for
must be raised before the discharge is ordered. certiorari and prohibition.
Note: There is nothing in the law that requires a Effects of discharge:

prosecutor to first include the proposed state
witness in the information and then later secure his 1. Evidence adduced in support of the
discharge before he could be presented as discharge shall automatically form part of the trial;
government witness (People of the Philippines v. 2. If the court denies the motion to discharge
Castaneda, G.R. No. 45129, September 24, 1936). the accused as state witness, his sworn
statement shall be inadmissible in evidence;
3. Discharge of accused operates as an
acquittal and bar to further prosecution for the
Sec. 17, Rule 119 same offense.
R.A. No. 6981
Rules of Court
The offense in which Discharge under this rule is only one of the modes
It has no to be a state witness. Other modes:
the testimony is to be
qualifications; it
used is limited only to
applies to all felonies. a. The Witness Protection Program of RA
grave felony.
6981;
The immunity is The immunity is b. The power of the ombudsman to grant
granted by DOJ. granted by the court. immunity under Section 17 of R.A. No. 6770;
c.Immunity under P.D. No. 749; and
The witness so d. The grant of immunity under E.O. No. 14-A.
The witness is discharged must still
automatically entitled apply for the SECTION 18. DISCHARGE OF ACCUSED
to certain rights and enjoyment of said OPERATES AS ACQUITTAL.
benefits. rights and benefits in
the DOJ.
The witness need not He is charged in court General Rule: The discharge of the accused shall
be charged as one of the accused amount to an acquittal and shall be a bar to future
prosecution for the same offense.

This rule is predicated on the fact that an accused

person has the right to be informed of the nature
Note: Where an accused has been discharged to
and cause of the accusation against him, and to
be utilized as state witness and he thus testified,
convict him of an offense different from that
the fact that the discharge was erroneous as the
charged in the complaint or information would be
conditions for discharge were not complied with did an unauthorized denial of that right.
not thereby nullify his privilege of being excluded
from the information or from being charged anew
for the same offense or for an attempt or frustration
Sec. 14, Rule 110 Sec. 19, Rule 119
thereof, or for crimes necessarily included in or
necessarily including those offense. In other words, Directed to the Directed to the judge
the incriminating testimony he gave cannot be used prosecutor
against him but can be used against his other co-
accused Can be done even Always done during
before or during trial trial
Exceptions:
(Galvez v. Court of Appeals, G.R. No. 114046,
1. If the accused fails or refuses to testify October 24, 1994).
against his co-accused in accordance with his
sworn statement constituting the basis of the
discharge;
2. Failure to testify refers exclusively to SECTION 20. APPOINTMENT OF ACTING
defendant’s will or fault; PROSECUTOR
3. Where an accused who turns into a state
Note: See Section 5, Rule 110.
witness on a promise of immunity but later
retracts and fails to keep his part of the SECTION 21. EXCLUSION OF THE PUBLIC
agreement, his confession of his participation in
the commission of the crime is admissible as
evidence against him (People of the Philippines v.
Beberino, G.R. No. L-23213, October 28, 1977). General Rule: The accused has the right to a
public trial and under ordinary circumstances; the
court may not close the door of the courtroom to
SECTION 19. WHEN MISTAKE HAS BEEN MADE the general public.
IN CHARGING THE PROPER OFFENSE
When it becomes manifest at any time before

judgment that a mistake has been made in Exception: Where the evidence to be produced
charging the proper offense and the accused during the trial is of such character as to be
cannot be convicted of the offense charged or any offensive to decency or public morals, the court
other offense necessarily included therein, the may motu proprio exclude the public from the
accused shall not be discharged if there appears courtroom.
good cause to detain him.
The court may also, on motion of the accused,
exclude the public from the trial EXCEPT court
personnel and the counsel of the parties.
In such case, the court shall commit the accused to
answer for the proper offense and dismiss the case
upon filling of the proper information. SECTION 22. CONSOLIDATION OF TRIALS OF
RELATED OFFENSES

This contemplates a situation where separate The prosecution may oppose the demurrer to
information are filed: evidence within a non-extendible period of 10
days from receipt of the demurrer.
1. For offenses founded on the same facts;
2. For offenses which form part of a series of
offenses of similar character.
In these cases, the charges may be tried jointly at 2. Without leave: If the motion is denied, he loses
the court’s discretion. The object of consolidation the right to present evidence and the case will be
of trials of related offenses is to avoid multiplicity deemed submitted for decision.
of suits, guard against oppression or abuse,
prevent delay, clear congested dockets, simplify Reason: Accused is not allowed to wager on the
the work of the trial court, and save unnecessary outcome of the judicial proceedings by espousing
cost and expenses (Palanca v. Querubin, G.R. inconsistent viewpoints for his own convenience
No. L-29543, November 29, 1969). (People of the Philippines v. Estrella, G.R. No.
176385, February 26, 2008).
SECTION 23. DEMURRER TO EVIDENCE

Purpose for requirement to obtain leave of
It is a motion to dismiss due to the insufficiency of
court: To determine whether or not the defendant
the evidence presented by the prosecution to
overturn the presumption of innocence in favor of in a criminal case has filed the demurrer merely to
the accused (deleted ‘demurrer to evidence before stall the proceedings (People of the Philippines v.
the definition) Mahinay, G.R. No. 109613, July 17, 1995).
When can it be filed? If the demurrer is sustained by the court, the order
of dismissal is tantamount to an acquittal. Hence, it
After the prosecution rests its case, the court may is not appealable.
dismiss the action on the ground of insufficiency of
evidence:
1. On its own initiative after giving the If demurrer is granted and the accused is acquitted
prosecution the opportunity to be heard; or by the court, the accused has the right to adduce
2. Upon demurrer to evidence filed by the evidence on the civil aspect of the case unless the
accused with or without leave of court. court also declares that the act or omission from
which the civil liability may arise did not exist.
With or without leave of court

1. With Leave: If the motion is denied, he can still If the trial court issues an order or renders
present evidence. The motion must be filed within judgment not only granting the demurrer to
a non-extendible period of five (5) days after the evidence of the accused and acquitting him but
prosecution rests its case. also on the civil liability of the accused to the
private offended party, said judgment on the civil
aspect of the case would be a nullity for the reason
If leave is granted, the accused shall file the
demurrer to evidence within a non-extendible that the constitutional right of the accused to due
period of 10 days from notice of the grant of leave process is thereby violated (Salazar v. People of
of court. the Philippines G.R. No. 151931, September 23,
2003).

The order denying the motion for leave of court to Note: This requirement is mandatory. A verbal
file demurrer to evidence or the demurrer itself shall judgment is incomplete and invalid as it does not
NOT be reviewable by appeal or by certiorari contain findings of fact and is not signed by the
before judgment since it is considered an judge. The infirmity, however, may be corrected by
interlocutory order. a subsequent full blown judgment (People of the
Philippines v. Lascuna, G.R. No. 90626, Aug. 18,
1993).
SECTION 24. REOPENING
At any time before finality of the judgment of There can be no oral judgment.
conviction, the judge may, motu proprio or upon
motion, with hearing in either case, reopen the
proceedings to avoid miscarriage of justice.
Remedy if judgment is not put in writing: To file
a petition for mandamus to compel the judge to put
in writing the decision of the court.
The proceedings shall be terminated within 30 days
from the order granting it.
Judgment pronounces the disposition of the case;
RULE 120 ratio decidendi provides the basic reason for such
J UDGM ENT determination (Republic of the Philippines v.
Cuevas [CA], 03845-R, November 11, 1975).
SECTION 1. JUDGMENT; DEFINITION AND

FORM
It is not necessary that the judge who tried the case
Judgment be the same judicial officer to decide it. It is
sufficient if he be apprised of the evidence already
The adjudication by the court that the accused is presented by a reading of the transcript of the
guilty or not guilty of the offense charged and the testimonies already introduced, in the same
imposition of the proper penalty and civil liability manner as appellate courts review evidence on
provided for by the law. appeal (People of the Philippines v. Peralta, G.R.
Judgment must be: No. 94570, September 28, 1994).
1. In writing;
2. In the official language; Note: Through Adm. Circular No. 12-2000 (dated
Under Section 7, Article XIV, 1987 Constitution, November 21, 2000) and Adm. Circular No. 08-
the official language is Filipino and English
2008 (dated January 25, 2008) the Rule of
During the promulgation, the judgment can be Preference is the imposition of fine instead of
spoken or translated to a local dialect in order for imprisonment in B.P. Blg. 22 and libel cases,
the accused to understand the decision respectively, subject to the sound discretion of the
Presiding Judge. However, this is with subsidiary
3. Personally and directly prepared and imprisonment in case of non-payment of the fine
signed by the judge; imposed as a penalty.
4. With a concise statement of the fact and the
law on which it is based. SECTION 2. CONTENTS OF THE JUDGMENT

If the judgment is one of conviction, judgment When the Motion for Reconsideration was denied,
must state: the original court cannot hear the case any further
as there is already a conclusion of facts.
1. Legal qualification of the offense constituted
by the acts committed by the accused, and the The accused can question the final order through
aggravating or mitigating circumstances attending an Ordinary Appeal under Rule 40-45.
its commission;
2. Participation of the accused, whether as Interlocutory order
principal, accomplice or accessory;
3. Penalty imposed upon the accused; Issued by the court when the proceeding is not yet
4. Civil liability or damages caused by the terminated because not all matters of the
wrongful act or omission, unless a separate civil proceedings have been finished (e.g. Order of
action has been reserved or waived. the court denying the Motion to Quash).
If the judgment is one of acquittal, it must state:

The aggrieved party can question the interlocutory
1. Whether the evidence of the prosecution order through the extraordinary remedy of certiorari
absolutely failed to prove the guilt of the accused under Rule 65.
or merely failed to prove his guilt beyond
reasonable doubt;
2. In either case, the judgment shall determine Civil liability in case of acquittal:
if the act or omission from which the civil liability
might arise did not exist. 1. If the acquittal is based on reasonable doubt;
2. The decision contains a declaration that the
liability of the accused is not criminal but only civil;
Judgment is final when: 3. The civil liability is not derived from or based
1. No appeal is filed on the criminal act of which the accused is
2. Waiver of the right of appeal acquitted (Sadio v. Hon. RTC of Antique, G.R No.
3. Probation 91143, Sept. 24, 1991).
4. Service of sentence
There appears to be no sound reason to require a
Judgment of acquittal is considered a final and separate civil action to still be filed considering that
executory order the facts to be proved in the civil case have already
been established in the criminal proceedings where
the accused was acquitted. Due process has been
Reason: There can be no appeal in a judgment of accorded the accused (Padilla v. Court of Appeals,
G.R. No. L-63451, May 31, 1984).
acquittal no matter how erroneous. To rule
otherwise will place the accused in double jeopardy
Civil liability arising from crimes:

Final order 1. Actual damages: It must include life
expectancy and loss of earning capacity (People
Disposes of the whole subject matter or terminates
of the Philippines v. Marollano, G.R. No. 105004,
a particular issue leaving nothing to be done but to July 24, 1997);
enforce by execution what has been determined 2. Moral damages: It must be separate from
(e..g. Order of the Court denying the Motion for actual damages and should not be lumped into
Reconsideration) the whole amount (People of the Philippines v.

Castillo, G.R. No. 116122, September 06, 1996); double jeopardy (Barbers v. Laguio, Jr., A.M. No.
3. Exemplary damages: Where there are no RTJ-00-1568, February 15, 2001).
aggravating circumstances, no award of
exemplary damages (People of the Philippines v.
Manggasin, G.R. No. 130599-600, April 24, 1999);
It is awarded when the crime was committed with An acquittal of an accused based on reasonable
one or more aggravating circumstances. doubt does not bar the offended party from filing a
separate civil action based on other sources of
obligation.
Note: In People of the Philippines v. Combate
(G.R. No. 189301, December 15, 2001), the
Court held that exemplary damages while SECTION 3. JUDGMENT FOR TWO OR MORE
generally awarded where the presence of an OFFENSES
aggravating circumstance is alleged and proved,
such damages may be exceptionally allowed When two or more offenses are charged in the
even in the absence of such circumstances when complaint or information, and the accused fails to
the court finds that the facts of the case share the object to it before trial, the court may convict the
highly reprehensible or outrageous conduct of the accused of as many offenses as charged and
offender. proved.
4. Attorney’s fees – Only when a separate

civil action to recover civil liability has been filed
or when exemplary damages are awarded A complaint or information must charge but one
(People of the Philippines v. Teehankee Jr., G.R offense, except only in those cases in which
Nos. 112206-08, October 6, 1995). existing laws prescribe a single punishment for
various offenses (Section 13, Rule 110).
Reasonable Doubt
The state of the case which, after full consideration However, in the service of sentence, the maximum
of all evidence, leaves the mind of the judge in such duration of the court’s sentence shall not be more
a condition that he cannot say that he feels an than three-fold the length of time corresponding to
abiding conviction, to a moral certainty, of the truth the most severe of the penalties imposed upon the
of the charge. accused, and such maximum shall in no case
exceed forty years.
Acquittal
A finding of not guilty based on the merits, that is,

the accused is acquitted because the evidence SECTION 4. JUDGMENT IN CASE OF
does not show that his guilt is beyond reasonable VARIANCE BETWEEN ALLEGATION AND
doubt, or a dismissal of the case after the PROOF
prosecution has rested its case upon motion of the General Rule:An accused can be convicted of an
accused on the ground that the evidence fails to offense only when it is both charged and proved. If
show beyond reasonable doubt that the accused is
it is not charged although proved, OR if it is not
guilty.
proved although charged, the accused cannot be
Note: It is well-settled that acquittal, in a criminal convicted thereof.
case is immediately final and executory upon its
promulgation, and that accordingly, the State may
not seek its review without placing the accused in

Exception: Where there is a variance between the offense charged in the information, the accused
offense charged in the complaint or information and may validly be convicted of the offense proved.
that proved, and the offense as charged is included
in or necessarily includes the offense proved, the
Exception: Where facts supervened after the filing
accused shall be convicted of the offense proved
of information which change the nature of the
which is included in the offense charged, or of the
offense.
offense charged which is included in the offense
proved.
The prescription of the crimes necessarily An offense charged necessarily includes the
included in the crime charged should be offense proved when some of the essential
considered by the court: The accused cannot be elements or ingredients of the former, as alleged in
convicted of an offense lesser than that charged if the complaint or information, constitute the latter.
the said lesser offense had already prescribed at
the time the information is filed. To hold otherwise
would be to sanction the circumvention of the law An offense charged is necessarily included in the
on prescription by the simple expedient of accusing offense proved, when the essential ingredients of
the defendant of the graver offense (Francisco v. the former constitute or form part of those
Court of Appeals, G.R. No. L-45674, May 30, 1983). constituting the latter.
Example:
A committed Slight Physical Injuries on June Note: An accused cannot be convicted for the
2012. The crime is a light felony which shall lesser offense necessarily included in the crime
prescribe in 2 months. On June 2013, an charged if at the time of the filing of the information,
information is filed. The prosecutor filed an
the lesser offense has already prescribed
information charging the crime of Atte mpted (Francisco v. Court of Appeals, G.R. No. L-45674
Homicide in order to prevent the prescription of May 30, 1983).
crimes to bar the filing of a criminal case. It was
later found in court that the crime committed
was indeed only Slight Physical Injuries. Should
A conviction for a criminal negligent act can be had
the court convict the accused for the crime of
Slight Physical Injuries? under an information exclusively charging the
commission of a willful offense (Samson v. Court of
No. The crime of Slight Physical Injuries, which is Appeals, G.R. No. L-11324, March 29, 1958).
necessarily included in Attempted Homicide, has
prescribed when the information was filed. To rule
otherwise to create a bad precedent wherein the Examples:
prosecutors shall persuaded to intentionally file a
graver crime that necessarily includes the lesser 1. Theft is included in Robbery
2. Robbery is included in Brigandage
crime which has already prescribed in order to
3. Slight, Less Serious and Serious Physical
circumvent the laws of prescription.
Injuries included in Attempted Homicide
SECTION 5. WHEN AN OFFENSE INCLUDES OR 4. Estafa is included in Malversation
IS INCLUDED IN ANOTHER 5. Illegal Detention is included in Forcible
Abduction
General Rule: If what is proved by the prosecution 6. Slight Physical Injuries is not included in
evidence is an offense which is included in the Frustrated Homicide as mortal wound in the latter
negates minor injuries only

7. Slight, Less Serious and Serious Physical merely moved to a position of concurrent judicial
Injuries not included in Homicide as latter level; judge is on vacation)
involves the death of the victim 2. Permanent vacancy of the judge: the
8. Rape is not included in Qualified Seduction judgment written by the said judge cannot be
9. Consented Abduction is not included in promulgated if he is absent (e.g. judge was
Seduction (for examples, see Pamaran p.584-86) demoted or promote; death or retirement of the
judge).
SECTION 6. PROMULGATION OF JUDGMENT.
Promulgation in Absentia: There are two (2)
Promulgation of Judgment
instances when a judgment may be promulgated
The official proclamation or announcement of even without the personal presence of the accused,
judgment. It consists of reading the judgment or to wit:
sentence in the presence of the accused and any 1. When the judgment is for a light offense, in
judge of the court rendering the judgment. which case, the accused’s counsel or
representative may stand in for him; and
2. In cases where despite due notice to the
Rules on the validity of promulgation of accused or his bondsman or warden and counsel,
judgment: the accused failed to appear at the promulgation
of the decision.
1. The judgment must have been rendered and
promulgated during the incumbency of the judge
who signed it; The only essential elements for its validity are:
2. The presence of counsel during the promulgation
1. The judgment is recorded in the criminal
of judgment is not necessary;
docket; and
3. The judgment must be read in its entirety for
2. A copy thereof is served upon the accused
double jeopardy to attach.
in his last known address or to his counsel.
These two requisites are mandatory.
Note: The judge is not required to promulgate the
Note: If the judgment is for conviction and the
judgment personally.
accused’s failure to appear was without justifiable
cause, he shall lose the remedies available in these
Rules (Appeal, Motion for Reconsideration, Motion
Who may promulgate the judgment for New Trial) against the judgment and the court
1. Judge of the court in which it was rendered shall order his arrest.
2. Clerk of the said court in the absence of the
judge who rendered judgment.
3. Executive Judge of the RTC having Within 15 days from the promulgation of judgment,
jurisdiction over the place of confinement or however, the accused may surrender and file a
detention, when accused is confined or detained motion for leave of court to avail of these remedies.
and upon the request of the judge who rendered If his motion is granted, he may avail of the
judgment. remedies within 15 days from notice.
Permanent and temporary vacancy of the judge

Judges are directed to take down notes of salient
1. Temporary vacancy of the judge: the
judgment written by the said judge can be used portions of the hearing and to proceed in the
even if the judge is absent (e.g. judge was preparation of decisions without waiting for the
TSNs; with or without TSNs, the 90 day period for

deciding cases should be adhered to (Lawan v. The trial court can validly amend the civil portion of
Moleta, A.M. No. L-1696-MJ, June 19, 1979). its decision within 15 days from promulgation
thereof even though the appeal had in the
meantime already been perfected by the accused
SECTION 7. MODIFICATION OF JUDGMENT from judgment of conviction.
Upon motion of the accused, a judgment of

conviction may be modified or set aside by the The trial court may lose jurisdiction over the
court before it has become final or before an judgment even before the lapse of 15 days:
appeal has been perfected.
1. When the defendant voluntarily submits to
the execution of the judgment;
2. When the defendant perfects his appeal;
Modification of
New Trial 3. When the accused withdraws his appeal;
Judgment
4. When the accused expressly waives in
No new hearings or writing his right to appeal;
5. When the accused files a petition for
proceedings of any Irregularities are
probation.
kind or change in the expunged from the
record or evidence. A record and/or new
simple modification is evidence is SECTION 8. ENTRY OF JUDGMENT
made on the basis of introduced.
what is on record.
Entry of judgment; how made: The recording of
the judgment or order in the book of entries of
A judgment becomes final: judgments shall constitute its entry. The record
shall contain the dispositive part of the judgment
1. When the period for perfecting an appeal order and shall be signed by the clerk, with a
has lapsed;
certificate that such judgment or order has become
2. When the sentence is partially or totally
final and executory (Rule 36).
satisfied or served;
3. When the accused expressly waives in
writing his right to appeal; and
4. When the accused applies for probation. The final judgment of the court is carried into effect
by a process called “mittimus”.
A judgment of acquittal becomes final immediately

after promulgation and cannot be recalled for
Mittimus
correction or amendment. Any modification thereof
will result in double jeopardy. A process issued by the court after conviction to
carry out the final judgment, such as commanding a
prison warden to hold the accused in accordance
The prosecutor cannot ask for the modification or with the terms of the judgment. It shall be stayed
setting aside of a judgment of conviction because during the pendency of the motion for rehearing or
the rules clearly provide that a judgment of reconsideration.
conviction may be modified or set aside by the
court rendering upon motion of the accused.

SECTION 9. EXISTING PROVISIONS Offenders disqualified from probation:

GOVERNING SUSPENSION OF SENTENCE,
PROBATION AND PAROLE NOT AFFECTED BY 1. Those sentenced to serve a maximum term
of imprisonment of more than 6 years.
THIS RULE
2. Those charged with subversion or any crime
against national security or public order.
3. Those previously convicted by final
Exceptions for suspension of sentence of judgment of an offense punished by
youthful offenders: imprisonment not less than 1 month and 1 day
and/or a fine not less than Php200.
1. Offender has enjoyed previous suspension 4. Those who have been once on probation.
of sentence. 5. Those who are already serving sentence at
2. Offender is convicted of crime punishable the time the Probation Law of 1976 became
by death or life imprisonment. applicable (Sec. 9, P.D. No. 968 as amended).
3. Offender is convicted by military tribunal.
4. Offender is already of age at the time of
sentencing even if he was a minor at the time of When the court should deny probation
the commission of the crime.
1. Offender is in need of treatment that can be
provided most effectively by his commitment to
Probation: The court may, after it shall have an institution.
convicted and sentenced a defendant within the 2. There is an undue risk that offender will
period for perfecting an appeal, suspend the commit another crime during the period of
execution of the sentence and place the defendant probation.
on probation for such period and conditions it may 3. When probation will depreciate the
seriousness of the crime.
deemed best. No application for probation shall be
entertained or granted if the defendant has
perfected an appeal from the judgment of Sentence Imposed Period of Probation
conviction (Sec. 4, Presidential Decree 968 as
amended). Not more than one (1) Not more than two (2)
year years
Probation is a mere privilege and is revocable More than one (1) year Not more than six (6)
before final discharge of the probationer by the years
court.
Fine only, but offender At least equal to the
serves subsidiary number of days of
imprisonment subsidiary
The basis of the coverage of the Probation Law is
imprisonment but not
gravity of the offense. Fixing the cut-off at a
more than twice such
maximum term of 6 years imprisonment is based period
on the assumption that those sentenced to higher
penalties pose too great a risk to society, not just
because of their demonstrated capability for serious
wrongdoing but because of the gravity of serious Parole
consequences of the offense they might further The conditional release of an offender from a penal
commit. or correctional institution after he has served the
minimum period of his prison sentence under the
continued custody of the state and under conditions

that permit his reincarceration if he violates the The award of new trial or taking of additional
conditions of his release. evidence rests upon the sound discretion of the
court.
Once the appeal is perfected, the trial court steps

RULE 121 out of the case and the appellate court steps in.
Should it come to pass then that during the
NEW T RIAL OR RECONSIDERAT ION pendency of the appeal, new and material evidence,
for example, have been discovered, the accused
SECTION 1. NEW TRIAL OR may file a motion for new trial with the appellate
RECONSIDERATION court.
New Trial
The rehearing of a case already decided but before Cases when the trial court lose jurisdiction over
its sentence even before the lapse of 15 days:
the judgment of conviction therein rendered has
become final, whereby errors of law or irregularities 1. When the defendant voluntarily submits to
are expunged from the record or new evidence is the execution of the sentence;
introduced, or both steps are taken. 2. When the defendant perfects his appeal.
The moment the appeal is perfected the court a
quo loses jurisdiction over it, except for the
Requisites to file a Motion for Reconsideration purpose of correcting clerical errors.
1. Existence of judgment of conviction;

2. The said judgment is not yet final; Motion for
Reopening
3. Motion must be filed at the instance of the Reconsiderati New Trial
of the Case
accused or by the court motu proprio, with the on
consent of the accused.
Made by the
A motion for new trial or reconsideration should be Filed after court before
Filed after
filed with the trial court within 15 days from the judgment is the judgment
judgment is
promulgation of the judgment and interrupts the rendered but is rendered
rendered but
period for perfecting an appeal from the time of its before the in the
before the
filing until notice of the order overruling the motion finality exercise of
finality thereof
shall have been served upon the accused or his thereof. sound
counsel. discretion.
A motion for the reconsideration of the judgment Made by the Does not
may be filed in order to correct errors of law or fact Made by the require the
court on
in the judgment. It does not require any further court on motion consent of
motion of the
proceeding. of the accused the accused;
accused or
or at its own may be at
Note: A new trial may be granted at any time at its own
instance but the instance
before the judgment of conviction becomes final: instance but
with the of either
with the
1. On motion of the accused; consent of the party who
consent of
2. On motion of the court but with the consent accused. can
the accused.
of the accused. thereafter

Motion for e. Interest of justice (Sec. 6, Rule 121).

Reopening
Reconsiderati New Trial
of the Case
on Requisites before a New Trial may be granted
on the ground of Newly Discovered Evidence:
present
additional 1. That the evidence was discovered after trial;
evidence. 2. That such evidence could not have been
discovered and produced at the trial even with the
May also be
exercise of reasonable diligence;
done by the
3. That it is material, not merely cumulative,
court motu corroborative or impeaching; and
proprio 4. The evidence is of such a weight that it
would probably change the judgment if admitted.
Purpose: To
Purpose: To Purpose: To
ask the court to
permit the permit the General Rule: Mistakes or errors of counsel in the
reconsider its
reception of reception of conduct of his case are not grounds for new trial.
findings of law
new new This rule is the same whether the mistakes are the
so as to
evidence and evidence and result of ignorance, inexperience, or incompetence.
conform to the
extend the extend the
law applicable
proceedings. proceedings.
in the case.
Exception: If the incompetence, ignorance or
inexperience of counsel is so great and the error
SECTION 2. GROUNDS FOR NEW TRIAL committed as a result thereof is so serious that the
client, who otherwise has a good cause, is
Grounds for a new trial in criminal cases: prejudiced and denied his day in court, the litigation
may be reopened to give the client another chance
1. Errors of law or irregularities prejudicial to to present his case.
the substantial rights of the accused have been
committed during the trial; Recantation
2. New and material evidence is discovered
(after trial); The public and formal withdrawal of a witness of his
3. Other grounds which the court may prior statement. It is not a ground for new trial
determine in the exercise of its discretion: because it makes a mockery of the court and would
a. Negligence or incompetency of counsel or place the investigation of truth at the mercy of the
mistake which is so gross amounting to unscrupulous witness. Moreover, retractions are
deprivation of the substantial rights of the easy to extort out of witness. In contrast, their
accused and due process (Aguilar v. Court of statements are made under oath, in the presence
Appeals, G.R. No. 114282, November 28, of judge, and with the opportunity to cross examine.
1995).
b. Recantation of a witness where there is no Except: When aside from the testimony of the
evidence sustaining the judgment of conviction retracting witness, there is no other evidence to
other than the testimony of the witness (Tan support the conviction of the accused. In this case,
Ang Bun v. Court of Appeals, G.R. No. L-47747, the retraction by the sole witness creates a doubt in
February 15, 1990); the mind of the judge as to the guilt of the accused.
c. Improvident plea of guilty which may be
withdrawn;
d. Disqualification of attorney de officio to
represent accused in trial.

Affidavit of 4. Notice of the motion for new trial or

Recantation reconsideration shall be given to the fiscal.
Desistance
5. With respect to a Motion for New Trial.
The complainant When it is based on newly discovered evidence, it
A witness who must be supported by the affidavits of the witness
states that he did not
previously gave a by whom such evidence is expected to be given,
really intend to
testimony or duly authenticated copies of documents which
institute the case and
subsequently declares it is proposed to introduce in evidence;
that he is no longer
that his statements
interested in testifying
were not true.
or prosecuting. While the rule requires that an affidavit of merits be
attached to support a motion for new trial based on
It is a ground for newly discovered evidence, yet the defect of lack of
dismissing the case it may be cured by testimony under oath of the
only if the prosecution defendant at the hearing of the motion (Paredes v.
can no longer prove Borja, G.R. No. L-15559, November 29, 1961).
the guilt of the
accused beyond SECTION 5. HEARING ON MOTION
reasonable doubt Where a motion for new trial calls for resolution of
without the testimony any question of fact, the court may hear evidence
of the offended party. thereon by affidavits or otherwise.
Purpose of hearing: To determine whether the
SECTION 3. GROUNDS FOR new trial requested should be granted or not. It is
RECONSIDERATION not the new trial proper wherein the newly
discovered evidence, for example will be received
Grounds for Reconsideration: by the court (Pamaran, p. 608).
1. Errors of law;
2. Errors of fact in the judgment.
SECTION 6. EFFECTS OF GRANTING A NEW
TRIAL OR RECONSIDERATION
The principle underlying this rule is to afford the trial
court the opportunity to correct its own mistakes Effects of granting a new trial or
and to avoid unnecessary appeals from being taken. reconsideration:
The grant by the court of reconsideration should 1. When a new trial is granted on the ground
require no further proceedings, such as the taking of errors of law or irregularities committed during
of additional proof. the trial, all proceedings and evidence not
affected by the commission of such errors and
irregularities shall stand, but those affected
SECTION 4. FORM OF MOTION AND NOTICE TO thereby shall be set aside and taken anew. The
THE PROSECUTOR court may, in the interest of justice, allow the
introduction of additional evidence;
Requisites for a motion for new trial or
reconsideration: The motion for a new trial or
reconsideration shall be: In other words, not all of the evidence previously
adduced shall stand.
1. In writing;
2. Filed with the court;
3. State grounds on which it is based;

2. When a new trial is granted on the ground The Court in Judith Yu v. Judge Samson-Tatad,
of newly discovered evidence, the evidence (G.R. No. 170979, February 9, 2011) held that the
already taken shall stand, and the newly “fresh period” rule previously laid down in Neypes v.
discovered and such other evidence as the court Court of Appeals, shall likewise be applicable to
may, in the interest of justice, allow to be criminal cases for the following reasons:
introduced, shall be taken and considered
together with the evidence already in the record; 1. 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
In other words, all of the evidence previously notice of the final order appealed from. Note that
adduced shall stand. 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.
3. In all cases, when the court grants new trial 2. The provisions of Section 3 of Rule 41 and
or reconsideration, the original judgment shall be Section 6 of Rule 122, though differently worded
set aside and a new judgment rendered mean exactly the same. That the appeal period
accordingly. 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
The effect of the granting of a new trial is not to motions. There is then no reason why the period
acquit the accused of the crime of which the of appealed which is stayed in civil cases should
judgment finds him guilty, but precisely to set aside likewise not be stayed in a criminal case when a
said judgment so that the case may be tried de motion for new trial or reconsideration is filed.
novo as if no trial had been before. 3. The Court had included in the coverage of
Neypes Rule 42 on petitions for review from the
RTC to the CA and Rule 45 on appeals by
certiorari to the Supreme Court. Both these rules
Note: An order granting or denying new trial is apply to an appeal in a criminal case pursuant to
appealable because in deciding the case anew, the Sec. 3 of Rule 122.
trial court may acquit the defendant and thereafter,
the prosecution would have no more opportunity of
bringing before the Appellate Court the question of
RULE 122
legality or illegality of the order granting a new trial
because the defendant acquitted may plead double APPEAL
jeopardy (People of the Philippines v. Bocar, G.R.
No. L-9050, July 30, 1955).
SECTION 1. WHO MAY APPEAL
Any party may appeal from a judgment or final

Fresh 15 day period to appeal from dismissal of order, unless the accused will be placed in double
Motion for New Trial or Motion for jeopardy.
Reconsideration: In Neypes v. Court of Appeals
All those affected by the judgment or final order
(G.R. No. 141524, September 14, 2005), the Court
rendered:
allowed a fresh period of 15 days within which to
file a notice of appeal in the Regional Trial Court to 1. Accused
be counted from receipt of the order dismissing a 2. Government
motion for new trial or motion for reconsideration. 3. Offended party
4. Employers under Article 103 RPC
5. Bailee

Provided that the accused is not placed in double or the damages awarded by the trial court, although
jeopardy the offended party had not appealed from said
award, and the party who sought a review of the
decision was the accused.
Appeal
Final Judgment Final Order
A proceeding for review by which the whole case is
transferred to the higher court for a final Disposes of the whole
determination. subject matter or
terminates a particular
A judgment which
issue leaving nothing
would become final if
An appeal is not an inherent right of a convicted to be done but to
no appeal is taken.
person. The right of appeal is and always has been enforce by execution
statutory. what has been
determined.
Note: Only final judgments and orders are

appealable. From a judgment convicting the accused, two
appeals may accordingly be taken:
When can prosecution appeal the judgment or 1. The accused may seek a review of said
final order of the court? judgment, as regards both actions; or
2. The complainant may appeal with respect
1. Can appeal the civil aspect of the criminal only to the civil action, either because the lower
case. court has refused or failed to award damages, or
2. Can appeal criminal aspect of the case because the award made is unsatisfactory to him.
provided that it did not place the accused in
double jeopardy.
Example: The prosecution validly filed a motion Appeal of a Judgment Appeal of an Order
for substitution to change the charge of Robbery
Must be perfected Must be perfected
to Grave Coercion. The RTC denied the motion
within 15 days from within 15 days from
even though there is no double jeopardy. The
promulgation notice of the final order
prosecution can appeal the final order.
3. Can appeal the criminal aspect of the case
if there was violation of due process General Rule: A private prosecutor in a criminal
Example: RTC Judge accepted a bribe from the case has no authority to act for the People of the
accused and rendered a judgment of acquittal. Philippines of the Philippines before a court on
Prosecution can appeal the decision as the judge appeal. It is the government’s counsel, the Solicitor
was not impartial.
General, who appears in criminal cases or their
incidents before the Supreme Court. At the very
least, the Provincial Fiscal himself, with the
Effect of an appeal: An appeal in a criminal case conformity of the Solicitor General, shall act for the
opens the whole case for review and this includes People of the Philippines of the Philippines (People
the review of the penalty, indemnity, and the of the Philippines v. Dacudao, G.R. No. 81389,
damages involved. Consequently, on appeal, the February 21, 1989).
appellate court may increase the penalty, indemnity,

Exception: The civil award in a criminal case may 1. Dismissal is made upon motion, or with the
be appealed by the private prosecutor on behalf of express consent of the defendant;
the offended party or his successors (People of the 2. Dismissal is not acquittal or based upon
Philippines v. Hon. Santiago, G.R. No. 80778, June consideration of the evidence or on the merits of
20, 1989). the case;
3. The question to be passed upon by the
appellate court is purely legal so that should the
dismissal be found incorrect, the case would have
Wherein the accused was tried in absentia and the to be remanded to the court of origin for further
decision was also promulgated in his absence, the proceedings, to determine the guilt or innocence
accused should not be afforded the right to appeal of the defendant (People of the Philippines v. City
therefrom unless he voluntarily submits to the of Manila, G.R. No. L-36528, September 24,
jurisdiction of the court or is otherwise arrested 1987).
within fifteen (15) days from the notice of the
judgment against him. While at large, he is Can the accused appeal a judgment of acquittal?
considered to have waived such right and he has Generally, no.
no standing in court.
Exception: To strike out and expunged from the

SECTION 2. WHERE TO APPEAL
records the hurtful and irrelevant remarks against
The appeal may be taken as follows: the accused (People of the Philippines v. Mendoza,
74 Phil. 119).
1. To the Regional Trial Court, in cases decided by
the Metropolitan Trial Court, Municipal Trial SECTION 3. HOW APPEAL TAKEN
Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court; (Amended by AM 00-5-03-SC, October 3, 2002)
2. To the Court of Appeals or to the Supreme Court
in the proper cases provided by law, in cases
decided by the Regional Trial Court; and How appeal is taken:
3. To the Supreme Court, in cases decided by the
Court of Appeals. 1. Appeal to the Regional Trial Court: by filing
a notice of appeal with the court that rendered the
judgment or order appealed from and serving a
No appeal in judgment of acquittal: A judgment copy to the adverse party;
of acquittal becomes final immediately after 2. Appeal to the Court of Appeals from
promulgation and cannot be recalled for correction decision of the Regional Trial Court in the
or amendment, because of the doctrine that nobody exercise of its original jurisdiction: by filing a
may be put twice in jeopardy for the same offense notice of appeal with the court which rendered the
(Kepner v. United States, 195 U.S. 100). judgment or order appealed from and serving a
copy to the adverse party;
3. Appeal to the Court of Appeals in cases
decided by Regional Trial Court in the exercise of
The rule prohibiting appeal should not be avoided its appellate jurisdiction: by petition for review
in the guise of certiorari (Central Bank v. Court of under rule 42;
Appeals, G.R. No. L-41859, March 08, 1989). 4. Appeal to the Court of Appeals in cases
where the penalty imposed is reclusion perpetua,
life imprisonment or where a lesser penalty is
Exceptions: However, an appeal from the order of imposed but involving offenses committed on the
dismissal shall not constitute double jeopardy if: same occasion or arising out of the same

occurrence that gave rise to the more serious From Decision of Appeal to How
offense for which the penalty of death or life
imprisonment is imposed: by filing a notice of to adverse
appeal with the Court of Appeals; party.
5. Death penalty: automatic review by the
Court of Appeals (A.M. No. 00-5-03-SC, October Petition for
15, 2004). Review (Rule
6. Except as provided in the last paragraph of 42): In cases
Sec. 13, Rule 124, other appeals to the Supreme
decided by the
Court: by petition for review on certiorari.
RTC in its
appellate
Note: In People of the Philippines v Mateo, the jurisdiction.
Supreme Court held that while the Fundamental RTC, when there
Law requires a mandatory review by the Supreme are questions of CA Ordinary
Court of cases where the penalty imposed is both fact and law Appeal: By
reclusion perpetua, life imprisonment, or death, notice of appeal
nowhere, however, has it proscribed an filed with the
intermediate review. If only to ensure utmost court that
circumspection before the penalty of death, rendered the
reclusion perpetua or life imprisonment is imposed, decision and by
the Court now deems it wise and compelling t o service of copy
provide in these cases a review by the Court of to adverse
Appeals before the case is elevated to the party.
Supreme Court. A prior determination by the Court RTC, when the Automatic
of Appeals on, particularly, the factual issues, death penalty is CA Review: No
would minimize the possibility of an error of imposed notice required
judgment. If the Court of Appeals should affirm the
penalty of death, reclusion perpetua or life RTC, in criminal
imprisonment, it could then render judgment cases involving
imposing the corresponding penalty as the offenses for which
circumstances so warrant, refrain from entering the penalty
judgment and elevate the entire records of the case imposed is Ordinary
to the Supreme Court for its final disposition (G.R. reclusion Appeal: By
Nos. 147678-87, July 7, 2004). perpetua or life notice of appeal
imprisonment and filed with the
those other court that
offense, which, CA
From Decision of Appeal to How rendered the
although not so decision and by
Ordinary punished, arose service of copy
Appeal: By out of the same to adverse
In cases decided notice of appeal occurrence or party.
by the MTC, RTC filed with the which may have
MeTC, MCTC court that been committed
rendered the by the accused on
decision and by the same
service of copy occasion, as that

From Decision of Appeal to How Effect of perfection of appeal: Settled is the rule,
that once an appeal in a case, “whether civil or
giving rise to the criminal, has been perfected, the court a quo loses
more serious jurisdiction over the case both over the record and
offense. over the subject of the case (Director of Prisons v.
Teodoro, G.R. No. L-9043, July 30, 1955).
RTC, when only Petition for
questions of law SC Review on
are involved Certiorari Failure to serve copy to the prosecutor: It is not
a defect which can either nullify the appeal or
Petition for
In cases decided prejudice the unquestionable rights of the accused.
SC Review on
by CA
Certiorari
When the death SECTION 5. WAIVER OF NOTICE

penalty is Automatic
The appellee may waive his right to a notice that an
imposed in a SC Review: No
appeal has been taken. However, the appellate
lower court and notice required
court may, in its discretion, entertain an appeal
the CA affirmed
notwithstanding failure to give such notice if the
interests of justice so require.
Modes of review: The Rules of Court recognize

four (4) modes by which the decision or final order SECTION 6. WHEN APPEAL TO BE TAKEN
of the court may be reviewed by a higher tribunal,
viz.: An appeal must be filed within fifteen (15) days
counted from the promulgation or notice of the
1. Ordinary appeal; judgment or order appealed from.
2. Petition for review;
3. Petition for review on certiorari;
4. Automatic appeal.
The period for appeal is interrupted from the time a
motion for new trial or reconsideration is filed until
SECTION 4. SERVICE OF NOTICE OF APPEAL notice of the order overruling the motion has been
If personal service of the copy of the notice of served upon the accused or his counsel at which
time the balance of the period begins to run.
appeal cannot be made upon the adverse party or
his counsel, service may be done by registered
mail or by substituted service pursuant to Sections
7 and 8 of Rule 13. Computation of the period to appeal: In
computing the period to appeal, the first day is
excluded and the last day is included. Should the
Publication of notice of appeal: If copy of the last day fall on a Sunday or a holiday, the period
notice of appeal cannot be served on the adverse continues to run until the next day which is neither
party or his counsel, it may be done by publication. a Sunday nor holiday (Section 13, Revised
Administrative Code).
Service by publication is made in a newspaper of
general circulation in the vicinity once a week for a
period not exceeding 30 days (Pamaran, p. 636).

SECTION 7. TRANSCRIBING AND FILING SECTION 12. WITHDRAWAL OF APPEAL

NOTES OF STENOGRAPHIC REPORTER UPON
APPEAL An appellant may withdraw his appeal BEFORE the
record has been forwarded by the clerk of court to
SECTION 8. TRANSMISSION OF PAPERS TO the proper appellate court as provided by Section 8,
APPELLATE COURT UPON APPEAL in which case the judgment shall become final.
Within five (5) days from the filing of the notice of The court may also, in its discretion, allow the
appeal, the clerk of the court with whom the notice appellant to withdraw his appeal, Provided a motion
of appeal was filed must transmit to the clerk of to that effect is filed before the rendition of the
court of the appellate court the complete record of judgment in the case on appeal (People of the
the case, together with said notice. Philippines v. Madrigal-Gonzales, G.R. Nos. L-
16688-90, April 30, 1963).
Once appeal is withdrawn, the decision or judgment

SECTION 9. APPEAL TO THE REGIONAL TRIAL
appealed from becomes at once final and
COURTS
executory (People of the Philippines v. Dueño, G.R.
SECTION 10. TRANSMISSION OF RECORDS IN No. L-31102, May 5, 1979).
CASE OF DEATH PENALTY
SECTION 11. EFFECT OF APPEAL BY ANY OF

SECTION 13. APPOINTMENT OF COUNSEL DE
SEVERAL ACCUSED
OFFICIO FOR ACCUSED ON APPEAL
These are the effect of appeal by any of several
The right to counsel de officio does not cease upon
accused:
the conviction of an accused by a trial court but
1. An appeal taken by one or more of several continues even during appeal.
accused shall not affect those who did not appeal,
Duties of the clerk of the trial court to the
except insofar as the judgment of the appellate
court is favorable and applicable to the latter; appellant who is confined in prison upon the
2. The appeal of the offended party from the presentation of notice of appeal:
civil aspect shall not affect the criminal aspect of 1. He shall ascertain from the appellant,
the judgment or order appealed from; whether he desires the Regional Trial Court,
3. Upon perfection of the appeal, the execution Court of Appeals or the Supreme Court to appoint
of the judgment or final order appealed from shall an attorney de officio to defend him;
be stayed as to the appealing party. 2. He shall transmit with the record, upon a
form to be prepared by the clerk of the appellate
Note: The Supreme Court has relaxed the court, a certificate of compliance with this duty
application of this provision in certain cases: and of the response of the appellant to his inquiry.
a. In People of the Philippines v. Fernandez RULE 123

(G.R. No. 80481, June 27, 1990), the Supreme
Court applied the benefit of an acquittal handed M UNICIPAL T RIAL C OURT S
down in an appeal, to an accused who jumped
bail or escaped. SECTION 1. UNIFORM PROCEDURE
b. In People of the Philippines v. Olivo (G.R.
No. 177768, July 27, 2009), an accused has Procedure to be observed in Metropolitan Trial
benefited from the acquittal of his co-accused Courts, Municipal Trial Courts and Municipal
despite the former’s failure to appeal from the Circuit Trial Courts: They shall observe the same
judgment. procedure as in the Regional Trial Courts.

Except: of the appellant accompanied by proof of service of

2 copies thereof upon the appellant.
1. Where a particular provision expressly or
impliedly applies only to the Metropolitan Trial A reply brief, on the other hand, may be filed by the
Courts, Municipal Trial Courts and Municipal appellant within 20 days from receipt of the brief of
Circuit Trial Courts or Regional Trial Courts; the appellee. The reply brief shall traverse matters
2. In criminal cases governed by the Rules on raised in the appellee’s brief but not covered in the
Summary Procedure in Special Cases. brief of the appellant.
RULE 124 SECTION 5. EXTENSION OF TIME FOR FILING
P ROCEDURE IN T HE C OURT OF BRIEFS
APPEALS Not allowed except for good and sufficient cause

and only if the motion for extension is filed before
the expiration of the time sought to be extended.
SECTION 1. TITLE OF THE CASE
SECTION 6. FORM OF BRIEFS
SECTION 2. APPOINTMENT OF COUNSEL DE
OFFICIO FOR THE ACCUSED SECTION 7. CONTENTS OF BRIEFS
Instances when an accused can be given a The briefs in criminal cases shall have the same
counsel de officio on appeal: contents as provided in Sections 13 and 14 of Rule
44. A certified true copy of the decision or final
1. Accused is confined in prison; order appealed from shall be appended to the brief
2. He is without counsel de parte on appeal; or of the appellant.
3. He signed the notice of appeal himself.
Unlike the procedure in civil cases, it has been held
that it is not essential for the accused to make
Exception: An accused-appellant not confined to
assignment of errors in his brief, as on appeal, the
prison can have a counsel de officio if requested by
whole record of the case is submitted to and
him in the appellate court within 10 days from
reviewable by the appellate court.
receipt of the notice to file brief and the right thereto
is established by affidavit. Issues that were never raised in the proceedings
before the trial court cannot be considered and
SECTION 3. WHEN BRIEF FOR THE
passed upon on appeal.
APPELLANT TO BE FILED
SECTION 8. DISMISSAL OF APPEAL FOR
Seven (7) copies of the brief shall be filed within 30 ABANDONMENT OR FAILURE TO PROSECUTE
days from receipt by the appellant or his counsel of
the notice from the clerk of court of the Court of Grounds for dismissal of appeals
Appeals that the evidence, oral and documentary,
is already attached to the record. 1. Failure on the part of the appellant to file
brief within the reglementary period, except when
Brief he is represented by a counsel de officio;
2. Escape of the appellant from prison or
Literally means a short or condensed statement. confinement;
3. When the appellant jumps bail; and
SECTION 4. WHEN BRIEF FOR APPELLEE TO
4. Flight of the appellant to a foreign country
BE FILED; REPLY BRIEF OF THE APPELLANT
during the pendency of the appeal.
The appellee shall file 7 copies of the brief with the
clerk of court within 30 days from receipt of the brief Dismissal of appeal; need of notice to

appellant: The Court of Appeals may dismiss motu that, if considered, might affect the result of the
proprio or on motion by appellee an appeal for case (People of the Philippines v. Cabiling, G.R.
failure on the part of the appellant, except when No. L-38091, Dec. 17, 1976).
represented by a counsel de officio, to file his brief
on time, but it must have a notice served upon the
appellant of the action to be taken by said court The reversal of judgments entered in the court
before dismissing motu proprio the appeal. below is prohibited, except for prejudicial error or
that which tends to prejudice a substantial right of a
party to the proceedings.
Effect of escape of accused: Abandonment of
Appeals
SECTION 11. SCOPE OF JUDGMENT
1. If the convict escapes from prison or
confinement or refuses to surrender to the proper The appeal confers upon the appellate court full
authorities, jumps bail or flees to a foreign jurisdiction and renders it competent to examine the
country, he is deemed to have abandoned his
appeal and the judgment of the court below records, revise the judgment appealed from,
becomes final; increase the penalty and cite the proper provision
2. In that case, the accused cannot be of the law.
afforded the right to appeal unless (a) He
voluntarily submits to the jurisdiction of the court
or (b) Is otherwise arrested within 15 days from An invocation of the constitutional immunity from
notice of the judgment against him. double jeopardy will not lie in case of appeal by the
accused. The reason being that when the accused
SECTION 9. PROMPT DISPOSITION OF CASES appeals from the sentence of the trial court, he
waives the constitutional safeguard against double
It is discretionary for the appellate court whether to jeopardy and throws the whole case open to the
order a hearing of the case before it or decide the review of the appellate court.
appeal solely on the evidence submitted to the trial
court.
SECTION 12. POWER TO RECEIVE EVIDENCE
Purpose: To speed up the disposition of court

If the Court of Appeals chooses not to hear the
cases.
case, the Justices composing the division may just
deliberate on the case, evaluate the recorded Other powers of the Court of Appeals:
evidence on hand and then decide it.
1. To try cases and conduct hearings;
2. Receive evidence;
3. Perform any and all acts necessary to
SECTION 10. JUDGMENT NOT TO BE resolve factual issues raised in cases:
REVERSED OR MODIFIED EXCEPT FOR a. Falling under its original and appellate
SUBSTANTIAL ERROR jurisdiction;
b. Including the power to grant and conduct
General rule: The findings of the judge who tried
new trials or further proceedings.
the case and heard the witnesses are not disturbed
on appeal.
Exception: When it is shown that the trial court has
overlooked certain facts of substance and value

SECTION 13. CERTIFICATION OR APPEAL OF Court of Appeals.

CASE TO THE SC (As Amended By A.M. NO. 00-
5-03-SC, effective October 15, 2004) A re-hearing is not a matter of right but a privilege
to be granted, as the court sees fit, the matter being
1. Whenever the Court of Appeals finds that the solely within its discretion.
penalty of death should be imposed, the court
shall render judgment but refrain from making an New questions cannot be presented for the first
entry of judgment and forthwith certify the case time on a motion for rehearing, especially where
and elevate its entire record to the SC for review; they are inconsistent with positions taken on the
2. Where the judgment also imposes a lesser original hearing, or waived on the original
penalty for offenses committed on the same submission of the case.
occasion or which arose out of the same
occurrence that gave rise to the more severe A second motion for rehearing or reconsideration of
offense for which the penalty of death is imposed, a final judgment or order is not allowed because if
and the accused appeals, the appeal shall be parties are allowed to file as many motions for
included in the case certified for review to the rehearing or reconsideration as their discretion or
Supreme Court; caprice suits, the proceedings would become
3. In cases where the Court of Appeals imposes undeterminable and unnecessarily voluminous. It
reclusion perpetua, life imprisonment or a lesser shall be resolved by the Court of Appeals within 90
penalty, it shall render and enter judgment days from the time it is submitted for resolution
imposing such penalty. The judgment may be
appealed to the SC by notice of appeal filed with Generally, no 2nd motion for reconsideration for the
the Court of Appeals. same party shall be entertained.
Except, where the first motion for reconsideration
SECTION 14. MOTION FOR NEW TRIAL resulted in a reversal or substantial modification of
Motion for new trial based on Newly Discovered the original decision or final resolution. The party
adversely affected thereby may file a motion for
Evidence may be filed at any time AFTER the
reconsideration.
appeal from the lower court has been perfected
AND BEFORE the judgment of the appellate court SECTION 17. JUDGMENT TRANSMITTED AND
convicting the accused becomes final. FILED IN TRIAL COURT
Once an appeal is perfected, the trial court steps Transmittal of judgment to court a quo: After the
out and the appellate court steps in. A motion for judgment has been entered, a certified copy of the
new trial must then be filed with the appellate court, entry should be transmitted to the clerk of the court
not with the court from whose judgment the appeal of origin.
is taken.
The copy of the entry serves as the formal notice to
SECTION 15. WHERE NEW TRIAL CONDUCTED the court from which the appeal was taken of the
disposition of the case in the appellate court, so
When a new trial is granted, the Court of Appeals
that the judgment may be executed and/or placed
may conduct the hearing and receive evidence as
or noted in the proper file.
provided in Section 12 of this Rule or refer the trial
to the court of origin. SECTION 18. APPLICATION OF CERTAIN
RULES IN CIVIL TO CRIMINAL CASES
SECTION 16. REHEARING OR
RECONSIDERATION The corresponding amendment was made pursuant
to the changes introduced under the 1997 Rules of
A motion for reconsideration shall be filed within 15
Procedure.
days from notice of the decision or final order of the

1. When the findings are grounded entirely on

speculation, surmises or conjectures;
Note: Rule 47 (Annulment of Judgments of Final 2. When the interference made is manifestly
Judgment and Resolutions) does not apply to mistaken, absurd or impossible;
criminal cases. The appropriate remedy for lack of 3. When there is grave abuse of discretion;
jurisdiction or extrinsic fraud is certiorari (Rule 65) 4. When the judgment is based on
or habeas corpus (Rule 102). misapprehension of facts;
5. When the findings of fact are conflicting;
6. When in making its findings, the Court of
RULE 125 Appeals went beyond the issues of the case, or
its findings are contrary to the admissions of both
P ROCEDURE IN T HE S UPREM E the appellant and the appellee;
C OURT 7. When the findings are contrary to the trial
court;
8. When the findings are conclusions without
SECTION 1. UNIFORM PROCEDURE
citation of specific evidence on which they are
The procedure in the Supreme Court in original, as based;
well as in appealed cases, is the same as in the 9. When the facts set forth in the petition as
well as in the petitioner’s main and reply briefs
Court of Appeals, except when otherwise provided
are not disputed by the respondent;
by the Constitution or the law.
10. When the findings of fact are premised on
A case may reach the Supreme Court in the the supposed absence of evidence and
following manner: contradicted by the evidence on record; and
11. When the Court of Appeals manifestly
1. Automatic review; overlooked certain relevant facts not disputed by
2. Ordinary appeal; the parties, which, if properly considered, would
3. Petitioner for review on certiorari. justify a different conclusion (Development Bank
of the Philippines v. Traders Royal Bank and
Privatization and Management Office, G.R No.
Effect of Direct Appeal to the Supreme Court on 171982, August 18, 2010).
Question of Law in Criminal Cases: A direct
appeal to the Supreme Court on questions of law –
in criminal cases in which the penalty imposed is Question of Law is when the doubt or difference
not death or life imprisonment – precludes a review arises as to what the law is on a certain state of
of the facts. facts. It must not involve an examination of the
probative value of the evidence presented by the
Cases involving both questions of law and fact litigants or any of them.
come within the jurisdiction of the Court of Appeals.
Question of Fact is when the doubt or difference
Appeal to the SC is not a matter of right, but a arises as to the truth or the falsehood of alleged
matter of sound judicial discretion. The prescribed facts.
mode of appeal is by certiorari.
SECTION 3. DECISION IF OPINION IS EQUALLY
SECTION 2. REVIEW OF DECISIONS OF THE DIVIDED
COURT OF APPEALS
The Supreme Court, as the Constitution ordains,
General Rule: Findings of fact in the CA is shall be composed of a Chief Justice and 14
conclusive upon the SC Associate Justices. It may sit en banc or in its
Exceptions: discretion, in divisions of 3, 5, or 7 members
(Section 4[1], Article VIII, 1987 Constitution).

A criminal case shall be reheard by the Supreme 3. They are not available to individuals in the
Court when the Court en banc is equally divided in course of civil proceedings;
opinion or the necessary majority cannot be had, if 4. It is not for the maintenance of any mere
no decision is reached the conviction of the lower private right;
court shall be reversed and the accused acquitted. 5. It is interlocutory in character – it leaves
something more to be done, the determination of
According to the Constitution, only the Supreme the guilt of the accused.
Court en banc may modify or reverse a doctrine or
principle of law or ruling laid down by the Court in a Search and Seizure
decision rendered en banc or in division.
The term search as applied to searches and
seizures is an examination of a man’s house or
RULE 126 other buildings or premises or of his person with a
S EARCH AND S EIZURE view to the discovery of contraband or illicit or
stolen property or some evidence of guilt to be
SECTION 1. SEARCH WARRANT DEFINED used in the prosecution of a criminal action for
some offense with which he is charged.
Search Warrant
An order in writing issued in the name of the People

of the Philippines of the Philippines, signed by a A seizure is the physical taking of a thing into
judge and directed to a peace officer, commanding custody.
him to search for personal property described
therein and bring it before the court.
Warrant of Arrest Search Warrant
While it may be true in general that a man’s house
is his castle, it is equally true that he may not use Order directed to the Order in writing in the
that castle as a citadel for aggression against his peace officer to name of the RP signed
neighbors, nor can he within its walls create such execute the warrant by by the judge and
disorders as to affect their peace (U.S. v. Vallejo, G. taking the person directed to the peace
R. No. 4367, September 3, 1908). stated therein into officer to search
custody that he may personal property
Elements of search warrant
be bound to answer described therein and
1. Order in writing; for the commission of to bring it to court.
2. Signed by the judge in the name of the the offense. (Sec. 1)
People of the Philippines of the Philippines;
3. Commanding a peace officer to search Does not become Validity is for 10 days
personal property; stale. only. (Sec. 9)
4. Bring the property before the court.
To be served only in
daytime unless the
May be served on any
Nature of search warrants affidavit alleges that
day and at any time of
the property is on the
1. Search warrants are in the nature of day or night.
person or in the place
criminal process akin to a writ of discovery and to be searched.
(Sec. 6, Rule 113).
may be invoked only in furtherance of public
prosecutions; (Sec. 9)
2. Search warrants have no relation to civil
process or trials; and

Warrant of Arrest Search Warrant SECTION 2. COURT WHERE APPLICATION FOR

SEARCH WARRANT SHALL BE FILED
Searching Must personally
examination of conduct General Rule: It should be filed with the court
an
witnesses is not examination of the within whose territorial jurisdiction the crime was
necessary committed.
complainant and the
witnesses
Examination must be Exceptions:

Judge is merely called
probing. Not enough to 1. For compelling reasons, it can be filed with
upon to examine and
merely adopt the the court within whose judicial region the offense
evaluate the report of
questions and was committed or where the warrant is to be
the fiscal and the
answers asked by a served.
evidence
previous investigator 2. But if the criminal action has already been
filed, the application for a search warrant can only
be made in the court where the criminal action is
General Warrant pending.
3. In case of search warrants involving
A search warrant which vaguely describes and heinous crimes, illegal gambling, illegal
does not particularize the personal properties to be possession of firearms and ammunitions as well
seized without a definite guideline to the searching as violations of the Comprehensive Dangerous
team as to what items might be lawfully seized, Drugs Act of 2002, the Intellectual Property Code,
thus giving the officers of the law discretion the Anti-Money Laundering Act of 2001, the Tariff
regarding what articles they should seize. 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
Note: A general warrant is not valid as it infringes are on official leave of absence or are not
on the constitutional mandate requiring particular physically present in the station, the Vice-
description of the things to be seized. 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-
Scatter-Shot Search Warrant Crime Task Force (ACTAF). The applications
shall be endorsed by the heads of such agencies
A search warrant issued for more than one offense or their respective duly authorized officials and
(not valid because it is in violation of the shall particularly describe therein the places to be
Constitution). searched and/or the property or things to be
seized as prescribed in the Rules of Court. The
Executive Judges and Vice-Executive Judges
concerned shall issue the warrants, if justified,
There must be strict compliance with the which may be served in places outside the
constitutional and statutory requirements. territorial jurisdiction of the said courts.
Otherwise, the search warrant shall be void. No
presumptions of regularity are to be invoked in aid
of the process when an officer undertakes to justify SECTION 3. PERSONAL PROPERTY TO BE
under it (People of the Philippines v. Veloso, G.R. SEIZED
No. 23051, October 20, 1925).
Kinds of property to be seized by virtue of a

warrant: as the circumstances will ordinarily allow; or

b. When the description expresses a
1. Subject of the offense; conclusion of fact – not of law – by which the
2. Stolen or embezzled and other proceeds or warrant officer may be guided in making the
fruits of the offense; search and seizure; or
3. The means used or intended to be used for c.When the things described are limited to those
committing an offense. which bear direct relation to the offense for
which the warrant is being issued (Uy v. Bureau
Note: The rule does not require that the property to of Internal Revenue, G.R. No. 129651, October
20, 2000).
be seized should be owned by the person against
5. It must be in connection with one specific
whom the search warrant is directed. It may or may offense;
not be owned by him. It is sufficient that the person 6. The sworn statements together with the
against whom the warrant is directed has control or affidavits submitted by witnesses must be
possession of the property sought to be seized attached to the record (Prudente v. Dayrit, G.R.
(Burgos v. Chief of Staff, G.R. No. L-65334, No. 82870, December 14, 1989);
December 26, 1984). 7. It must not have been issued more than 10
days prior to the search made pursuant thereto.
In a search incidental to an arrest even without Party who may question validity of search and
a warrant the person arrested may be searched seizure: Well settled is the rule that the legality of a
for: seizure can be contested only by the party whose
1. Dangerous weapons; and rights have been impaired thereby, and that the
2. Anything which may be used as proof of the objection to an unlawful search and seizure is
commission of an offense. purely personal and cannot be availed of by third
parties (Stonehill v. Diokno, G.R. No. L-19550,
June 19, 1967).
SECTION 4. REQUISITES FOR ISSUING
SEARCH WARRANT
Remedies from an unlawful search
Requisites: 1. A motion to quash the search warrant;

2. A motion to suppress as evidence the
1. Must be issued upon probable cause; objects illegally taken (Exclusionary Rule – any
2. Probable cause must be determined by the evidence obtained through unreasonable
issuing judge personally; searches and seizures shall be inadmissible for
3. The judge must have personally examined, any purpose in any proceeding); and
in the form of searching questions and answers, 3. Replevin, if the objects are legally
in writing and under oath, the applicant and his possessed.
witnesses on facts personally known to them;
4. The warrant issued must particularly
describe the place to be searched and the Note: The remedies are alternative. If a motion to
persons or things to be seized; quash is denied, a motion to suppress cannot be
availed of subsequently.
Note: A search warrant may be said to
particularly describe the things to be seized
Where the search warrant is a patent nullity,
a. When the description therein is as specific certiorari lies to nullify the same.

The illegality of the search warrant does not call for witnesses and to attach them to the record (Mata v.
the return of the things seized, the possession of Bayona, G.R. No. L-50720, March 26, 1984).
which is prohibited by law. However, those
personalities seized in violation of the constitutional
immunity whose possession is not of itself illegal or Factors in determination of probable cause:
unlawful ought to be returned to their rightful owner
or possessor. 1. Time of the application in relation to the alleged
offense committed. The nearer the time at which
the observation of the offense is alleged to have
been made, the more reasonable the conclusion
Any evidence obtained in violation of the of establishment of probable cause (Asian Surety
constitutional immunity against unreasonable Insurance v. Herrera, G.R. No. L-25232,
searches and seizures are inadmissible for any December 20, 1973);
purpose in any proceeding (Section 2, Article III, 2. Need for competent proof of particular acts or
1987 Constitution). specific omissions in the ascertainment of
probable cause (Stonehill v. Diokno, supra);
3. The facts and circumstances that would show
probable cause must be the best evidence that
There is no need for a certification of non-forum
could be obtained under the circumstances. If
shopping in the application for search warrant. The such best evidence cannot be obtained, the
Rules of Court as amended requires such applicants must show a justifiable reason therefor
certification only from initiatory pleadings, omitting upon judge’s examination (People of the
any mention of “applications” (Savage v. Judge Philippines v. Judge Estrada, G.R. No. 124461,
Taypin, G.R. No. 134217, May 11, 2000). Sept. 25, 1998).
Probable Cause
Who determines probable cause: Probable
Refers to the facts and circumstances which could
cause must be determined personally by a judge
lead a reasonably discreet and prudent man to
(Art. 3, Sec. 2, 1987 Constitution).
believe that an offense has been committed and
that the objects sought in connection with the
offense in the place sought to be searched (Burgos
v. Chief of Staff, G.R. No. L-65334, December 26, Exception: Deportation of illegal and undesirable
1984). aliens, whom the President or the Commissioner of
Immigration may order arrested, following a final
order of deportation, for the purpose of deportation
(Harvey v. Defensor-Santiago, G.R. No. 82544,
Basis of probable cause: The basis must be the
June 28, 1988).
personal knowledge of the complainant or the
witnesses he may produce and not based on mere
hearsay. The test of sufficiency of a deposition or
affidavit is whether it has been drawn in a manner Particularly describing the place to be searched
that perjury could be charged thereon and the and the persons or things to be seized: The
affiant be held liable for damage caused. purpose of the rule is to leave the officers of the law
with no discretion regarding what articles they shall
seize, to the end that “unreasonable searches and
seizures” may not be made – that abuses may not
Note: Mere affidavits of the complainant and his
be committed (Stonehill v. Diokno, supra).
witnesses are not sufficient. The judge has to take
depositions in writing of the complainant and the Test to determine particularity:

1. When the description therein is as specific as the 3. The examination must be reduced to writing in
circumstances will ordinarily allow (People of the the form of searching questions and answers
Philippines v. Rubio, G.R. No. L-35500, October (Marinas v. Siochi, G.R. Nos. L-25707 & 25753-
27, 1932); 25754, May 14, 1981);
2. When the description expresses a conclusion of 4. Examination must be on the facts personally
fact - not of law which the warrant officer may be known to the applicant and his witnesses;
guided in making the search and seizure; 5. It must be probing and exhaustive, not merely
3. When the things described are limited to those routinary or pro forma (Roan v. Gonzalez, G.R.
which bear direct relation to the offense for which No. 71410, November 25, 1986);
the warrant is being issued. 6. It is done ex-parte and may even be held in the
secrecy of chambers (Mata v. Bayona, G.R. No.
L-50720, 26. March 1984).
Note: The warrant must name the person upon
whom it is to be served except in those cases
where it contains a description personae such as Such personal examination is necessary in order to
will enable the officer to identify the person. The enable the judge to determine the existence or non-
description must be sufficient to indicate clearly the existence of a probable cause.
proper person upon whom it is to be served
(People of the Philippines v. Veloso, G.R. No. L-
23051, October 20, 1925). The matters that may be raised in a motion to
quash a search warrant must not go beyond the
immediate, limited issue of the existence or non-
The absence of a probable cause for a particular existence of probable cause at the time of the
article does not generally invalidate the warrant as issuance of the warrant. Matters of defense should
a whole but may be severed from the rest which properly be raised at the criminal action and not at
meets the requirements of probable cause and the hearing of the motion to quash the search
particularity (People of the Philippines v. Salanguit, warrant (Department of Health v. Sy Chi Siong, Inc.,
G.R. Nos. 133254-55, April 15, 2001). et al., G.R. No. 85289, February 20, 1989).
“Multi-factor Balancing Test” in determining SECTION 6. ISSUANCE AND FORM OF SEARCH

Probable Cause: One which requires the officer to WARRANT
weigh the manner and intensity of the interference
on the right of the People of the Philippines, the
gravity of the crime committed, and the Issuance of search warrant: The Constitution
circumstances attending the incident (Allado v. ordains that no warrant shall issue except upon
Judge Diokno, G.R. No. 113630, May 5, 1994). probable cause supported by oath or affirmation.
SECTION 5. EXAMINATION OF COMPLAINANT; Form of search warrant: The search warrant must
RECORD be in writing and must contain such particulars as
the name of the person against whom it is directed,
Manner on how a judge should examine a witness
the offense for which it was issued, the place to be
to determine the existence of probable cause:
searched and the specific things to be seized .
1. The judge must examine the complainant and
witnesses personally;
2. The examination must be under oath; Note: Search warrant cannot issue against

diplomatic officers (WHO v. Aquino, G.R. No. L- In order to insure that the execution of the warrant
35131, November 29, 1972). will be fair and reasonable, and in order to insure
that the officer conducting the search shall not
SECTION 7. RIGHT TO BREAK DOOR OR
exceed his authority or use unnecessary severity in
WINDOW TO EFFECT SEARCH
executing the search warrant, as well as for the
The officer, if refused admittance to the place of officer’s own protection against unjust accusations,
directed search after giving notice of his purpose it is required that the search be conducted in the
and authority, may break open any outer or inner presence of the:
door or window of a house or any part of a house or 1. Lawful occupant of the place to be searched;
anything therein to execute the warrant or liberate or
himself or any person lawfully aiding him when 2. Any member of his family;
unlawfully detained therein. 3. In their absence, in the presence of two
General Rule: Knock and Announce Principle witnesses of sufficient age and discretion residing
in the same locality.
Officers executing a search must do the following
acts: Note: This requirement is mandatory.
1. Announce their presence
2. Identify themselves to the accused and to
the persons who rightfully have possession of the SECTION 9. TIME OF MAKING SEARCH
premises to be searched
3. Show to them the search warrant General Rule: A search warrant must be served at
4. Explain the warrant in a language or dialect daytime.
known and understood by them
Exceptions: When unannounced intrusion is Exception: A search warrant may be made at night
permissible: when it is positively asserted in the affidavit that the
property is on the person or in the place ordered to
1. Person in premises refuses to open it upon be searched. The affidavit making such assertion
demand; must itself be sufficient as to the fact so asserted,
2. Person in the premises already knew of the for if the same is based upon hearsay, the general
identity and authority of the officers; rule shall apply.
3. When officers have an honest belief that
there is an imminent danger to life and limb;
4. When those in the premises, aware of the
presence of someone outside, are then engaged Exceptions to the exception:
in activities which justifies the officers to believe
1. If there are emergencies
that an escape or the destruction of evidence is
2. Property is on the person or place to be
imminent. searched
3. Generally, all instances of valid warrantless
Note: This list of exceptions is neither conclusive search
nor exclusive.
SECTION 8. SEARCH OF HOUSE, ROOM, OR A search warrant conducted at night without
PREMISES TO BE MADE IN PRESENCE OF direction to that effect is an unlawful search. The
TWO WITNESSES same rule applies where the warrant left blank the
“time” for making the search.

A public officer or employee who exceeds his with and shall require delivery of the property
authority or uses unnecessary severity in executing seized.
the warrant is liable under Article 129 of the
Revised Penal Code.
If it has not been made: The judge shall summon
the executing officer and require the latter to
SECTION 10. VALIDITY OF SEARCH WARRANT explain.
Ten (10) days from its date, thereafter, it shall be

void. A search warrant can be used only once,
SECTION 13. SEARCH INCIDENT TO LAWFUL
thereafter it becomes functus officio.
ARREST
While, under Section 10, a search warrant has a

When may there be a search without warrant:
validity of 10 days, nevertheless, it cannot be used
every day of said period and once articles have 1. In times of war within the area of military
already been seized under said warrant, it cannot operation;
be used again for another search and seizure, 2. As an incident of a lawful arrest. The arrest must
except when the search conducted on one day precede the search and not the reverse (People
was interrupted, in which case the same may be of the Philippines v. Cuizon, G.R. No. 115431,
continued under the same warrant the following day April 18, 1996);
if not beyond the ten (10) day period (Uy Kheytin v. 3. Stop and Frisk measures (People of the
Villareal, G.R. No. 16009, September 21, 1920). Philippines v. Montilla, G.R. No. 123872, January
30, 1998);
4. Plain view doctrine when there are prohibited
articles open to eye and hand (Roan v. Gonzalez,
SECTION 11. RECEIPT FOR THE PROPERTY G.R. No. 71410, November 25, 1986);
SEIZED 5. When there is consent (People of the Philippines
v. Kagui Malasugui, G.R. No. L-44335, July 30,
1936);
SECTION 12. DELIVERY OF PROPERTY AND 6. Check Points under extraordinary circumstances
INVENTORY THEREOF TO COURT; RETURN (Valmonte v. Villa, G.R. No. 83988, Sept. 29,
AND PROCEEDINGS THEREON 1989);
7. When it is an incident of inspection;
8. Under the Tariff and Customs Code for purposes
of enforcing customs and tariff laws;
Duties of the executing officer: 9. Searches and seizures of vessels and aircraft;
this extends to the warrantless search of a motor
1. Deliver the property seized; and vehicle for contraband;
2. Make a True Inventory thereof to the judge 10.Inspections or body checks in airports;
who issued the warrant. 11.Emergency (based on probable cause under
extraordinary circumstances);
Within 10 days after issuance of Search Warrant, 12.Enforcement of health and sanitary laws.
the judge shall ascertain if a return has been
made: Note: The search and seizure of vessels and
If it has been made: The judge shall ascertain aircraft may validly be made without a search
whether Sec.11 of Rule 126 has been complied warrant because the vessel or aircraft can quickly
move out of the jurisdiction before such warrant

could be secured (People of the Philippines v. Lo 2. The evidence was inadvertently discovered
Ho Wing, G.R. No. 88017, January 21, 1991). by the police who had the right to be where they
are;
3. The evidence must be immediately
apparent; and
Searches incident to lawful arrest: This right
4. There is no need for further search (People
includes searching the person who is arrested, in of the Philippines v. Sarap, G.R. No. 132165,
order to find and seize the things connected with March 26, 2003).
the crime as its fruits or as the means by which it
was committed.
Elements of a valid consent search: Consent
Search made without a warrant cannot be justified cannot be presumed simply because the accused
as an incident of arrest unless the arrest itself was failed to object to the search. To constitute a waiver,
lawful. it must appear:
A search is not incidental to the arrest unless the 1. The right exists;
search is made at the place of arrest, 2. The person involved had knowledge, actual
contemporaneously with the arrest. or constructive, of the existence of such rights;
3. Actual intention to relinquish such rights.
The area that may be validly searched is limited to (People of the Philippines v. Burgos, G.R. No.
the area within the immediate control of the person 92739, August 02, 1991).
arrested.
Totality of Circumstances Principle

Immediate Control Test The question whether consent to a search was in
A search incidental to a lawful warrantless arrest fact voluntary is a question of fact to be determined
may extend beyond the person of the one arrested from the totality of all the circumstances. One must
to include the premises or surroundings under his consider the following characteristics of the person
immediate control (People of the Philippines v. giving consent and the environment in which
Musa, G.R. No. 95329, January 27, 1993). consent is given:
1. The age of the defendant;
2. Whether he was in a public or secluded
Reason: To protect the arresting officer from being location;
harmed by the person arrested, who might be 3. Whether he objected to the search or
armed with a concealed weapon, and to prevent passively looked on;
the latter from destroying evidence within reach. 4. The education and intelligence of the
defendant;
However, the exception should not be strained
5. The presence of coercive police procedures;
beyond what is needed to serve its purpose 6. The defendant's belief that no incriminating
(Valeroso v. Court of Appeals G.R. No. 164815, evidence will be found;
September 3, 2009). 7. The nature of the police questioning;
8. The environment in which the questioning
took place; and
Requisites of plain view: 9. The possibly vulnerable subjective state of
the person consenting.
1. A prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties; It is the State which has the burden of proving, by
clear and positive testimony, that the necessary

consent was obtained and that it was freely and Waiver of legality and admissibility: Objection to
voluntarily given (Caballes v. Court of Appeals, G.R. the legality of the search warrant, or as to the
No. 136292, January 15, 2002). admissibility of the evidence obtained is deemed
waived where no objection of the search warrant
was raised during the trial of the case nor to the
Stop and frisk: Its object is either to determine the admissibility of the evidence obtained through said
identity of a suspicious individual or to maintain the warrant (Demaisip v. Court of Appeals, G.R. No.
status quo momentarily while the police officer 89393, January 25, 1991).
seeks to obtain more information. The officer may
search the outer clothing of the person in an
attempt to discover weapons which might be used Rules on reasonableness of search: What
to assault him (Terry v. Ohio, 392 U.S. 1, Manalili v. constitutes a reasonable or unreasonable search or
Court of Appeals, G.R. No. 113447, October 09, seizure in any particular case is purely a judicial
1997). question.
Stop and Frisk serves a two-fold interest: Such is determinable from a consideration of the
circumstances involved, including the following:
1. The general interest of effective crime
prevention and detection, which underlies the a. The purpose of the search;
recognition that a police officer may, under b. Presence or absence of probable cause;
appropriate circumstances and in an appropriate c.Manner in which the search and seizure was
manner approach a person for purposes of made;
investigating possible criminal behavior, even d. Place or thing searched;
without probable cause; and e. Character of the articles procured.
2. The more pressing interest of safety and
self-preservation which permit the police officer to
take steps to assure himself that the person with Searches and seizure inside a home are
whom he deals is not armed with a deadly presumptively unreasonable.
weapon that could unexpectedly and fatally be
used against the police officer (Malacat v. Court
of Appeals, G.R. No. 123595, December 12, Constitutional prohibition against unlawful searches
1997).
and seizure applies as a restraint directed only
against the government and its agencies tasked
A protective frisk is different from an exploratory with the enforcement of the law. It could thus only
search or a search for evidence since the latter be invoked against the State.
two require a probable cause.
SECTION 14. A MOTION TO QUASH A SEARCH

Legality of seizure: The remedy for questioning WARRANT OR TO SUPPRESS EVIDENCE;
the validity of a search warrant can only be sought WHERE TO FILE
in the court that issued it, not in the sala of another
judge of concurrent jurisdiction. Except where
there is already a case filed, the latter shall acquire In what court may a Motion to Quash be filed:
jurisdiction to the exclusion of other courts.
1. May be filed and acted upon only by the
court where the action has been instituted;

2. If no criminal action has been instituted, it The writ of search and seizure: Where any delay
may be filed in and resolved by the court that is likely to cause irreparable harm to the intellectual
issued the search warrant. However, if such court property holder or where there is demonstrable risk
failed to resolve the motion and a criminal case is of evidence being destroyed, the intellectual
subsequently filed in another court, the motion property right holder or his duly authorized
shall be resolved by the latter court.
representative in a pending civil action for
infringement or who intends to commence such an
Remedies of Party adversely affected by a action may apply ex parte for the issuance of a writ
Search Warrant: of search and seizure directing the alleged
infringing defendant or expected adverse party to
1. Motion to quash the search warrant with the admit into his premises the persons named in the
issuing court; or order and to allow the search, inspection, copying,
2. Motion to suppress evidence with the court
photographing, audio and audiovisual recording or
trying the criminal case.
seizure of any document and article specified in the
order (Section 2).
Note: However, the remedy is alternative, not
cumulative. The Court first taking cognizance of the
motion does so to the exclusion of the other, and Where application filed: With any of the Regional
the proceedings thereon are subject to the Trial Courts of the judicial region designated to try
Omnibus Motion Rule and the rule against forum- violations of intellectual property rights stationed at
shopping (People of the Philippines v. Court of the place where the alleged violation occurred or is
Appeals, G.R. No. 126379, June 26, 1998). to occur, or the place to be searched, at the
election of the applicant. Provided, however, that
where the complaint for infringement has already
A third option would be to file an action for been filed, the application shall be made in the
replevin if the properties seized were lawfully court where the case is rending (Section 3).
possessed by the person from whom it was seized.
Grounds for the issuance of the order:

RULE ON S EARCH AND S EIZURE IN
1. The applicant is the right holder or his duly
C IVIL ACT IONS FOR I NFRINGEM ENT authorized representative;
OF I NT ELLECT UAL P ROPERT Y 2. There is probable cause to believe that the
RIGHT S applicant's right is being infringed or that such
infringement is imminent and there is a prima
facie case for final relief against the alleged
(A.M. No. 02-1-06-SC, January 30, 2002) infringing defendant or expected adverse party;
3. Damage, potential or actual, likely to be
This Rule governs the provisional seizure and caused to the applicant is irreparable;
impounding of documents and articles in pending 4. There is demonstrable risk of evidence that
and intended civil actions for the purpose of the alleged infringing defendant or expected
preventing infringement and preserving relevant adverse party may destroy, hide or remove the
evidence in regard to alleged infringement under documents or articles before any application inter
R.A. No. 8293 or the Intellectual Property Code and partes can be made; and
the TRIPS Agreement. 5. The documents and articles to be seized
constitute evidence of the alleged infringing
defendant's or expected adverse party's infringing
activity or that they infringe upon the intellectual

property right of the applicant or that they are

used or intended to be used as means of
infringing the applicant's intellectual property right When the computer disks or storage devices
(Section 6). cannot be readily removed from the computer to
which they are fitted, the sheriff may take the
subject computer from the custody of the alleged
Contents of the Writ
infringing defendant, expected adverse party or
1. An order to the alleged infringing defendant, person in charge or in control of the premises or
expected adverse party or to the person who residing or working therein (Section 16).
appears to be in charge or in control of the
premises or residing or working therein to permit RULE 127
the persons named in the writ to enter into the
premises for the purpose of searching, inspecting, P ROVISIONAL REM EDIES IN
copying, or removing from the premises and C RIM INAL C ASES
transferring to the custody of the sheriff and
subject to the control of the court the subject
documents and articles; SECTION 1. AVAILABILITY OF PROVISIONAL
2. An order to the alleged infringing defendant, REMEDIES
expected adverse party or to the person in charge
or in control of the premises to disclose to the Nature of provisional remedies:
sheriff serving the writ the location of the
documents and articles subject of the writ; 1. Those to which parties’ litigant may resort
3. The period when the writ shall be enforced for the preservation or protection of their rights or
which in no case shall be more than ten (10) days interests and for no other purposes during the
from the date of issuance by the court; pendency of the action;
4. The names of the applicant or his agent or 2. They are applied to a pending litigation for
representative and the Commissioner who shall the purpose of securing the judgment or
supervise the enforcement of the writ; and preserving the status quo, and in some cases
5. Other terms and conditions that will insure after judgment, for the purpose of preserving or
the proper execution of the writ with due regard to disposing of the subject matter (Calo v. Roldan,
the rights of the alleged infringing defendant or G.R. No. L-252, March 30, 1946).
expected adverse party (Section 8).
The requisites and procedure for availing of these
It shall also contain a warning that violation of any provisional remedies shall be the same as those for
of the terms and conditions of the writ shall civil cases.
constitute contempt of court.
The provisional remedies under this rule are proper

Seizure of computer disks other storage only where the civil action for the recovery of civil
devices: The seizure of a computer disk or any liability ex delicto has not been expressly waived or
storage device may be executed in any of the the right to institute such civil action separately is
following manner: not reserved in those cases where reservation may
be made.
1. By the physical taking thereof;
2. By copying its contents in a suitable device
or disk provided by the applicant; or
3. By printing out the contents of the disk or Where the civil action arising from a criminal
device with the use of a printer. offense is suspended by the filing of the criminal
action, the court wherein said civil case is pending

can issue the aforesaid auxiliary writs since such misapplied or converted to the use of the accused
orders do not involve a determination of the merits who is a public officer, officer of a corporation,
of the case (Babala v. Abaño, G.R. No. L-4600, attorney, factor, broker, agent or clerk, in the
February 28, 1952). course of his employment as such, or by any
other person in a fiduciary capacity, or for a willful
violation of duty;
3. When the accused has concealed, removed, or
Kinds of Provisional Remedies (RAIDS): disposed of his property, or is about to do so; and
1. Receivership; 4. When the accused resides outside the Philippines.
2. Attachment; 5. When the accused is about to abscond from the
3. Injunction; Philippines;
4. Delivery of personal property (Replevin); 6. When the criminal action is based on a claim for
5. Support pendente lite. money or property embezzled or fraudulently
SECTION 2. ATTACHMENT misapplied or converted to the use of the accused
who is a public officer or a corporate officer or an
attorney, broker, or agent or clerk in the course of
employment or by a person in a fiduciary
Who may apply for preliminary attachment: The capacity;
aggrieved party in whose behalf the civil aspect of 7. When the accused has concealed, removed or
the criminal action is prosecuted may apply for the about to dispose of his property; and
issuance of a writ of preliminary attachment, he 8. When the accused resides abroad.
being the person primarily and directly interested
thereby. The prosecutor in the criminal action may
make such an application in behalf of or for the
protection of the interest of the offended party.
Notice to adverse party not required: No notice
to the adverse party, or hearing on the application
is required before a writ of preliminary attachment
may issue as a hearing would defeat the purpose of
the provisional remedy. The time which such a
hearing would take, could be enough to enable the
defendant to abscond or dispose of his property
before a writ of attachment issue and the only
requisites from the issuance of a writ of preliminary
attachment are the affidavit and bond of applicant
(Mindanao Savings, etc. v. Court of Appeals, G.R.
No. 84481, April 18, 1989).
Attachment may be availed of only when the civil

action arising from the crime has not been
expressly waived or not reserved and only in the
following cases:
1. When the accused is about to abscond from the
Philippines;
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently

E VIDENCE
RULE 128-134
Rationale: There is a presumption that the court is
not aware of the veracity of the facts involved in a
E VIDENCE case, thus, it is incumbent upon the parties to prove
a fact in issue through the presentation of
admissible evidence (Riano, p.3).
Sources
1. Rules of Court, Rules 128-133;
2. Constitution; When evidence is required
3. Special Laws (e.g. Anti-Wiretapping Act); 1. When the court has to resolve a question of
4. Revised Penal Code, Civil Code, etc.;
fact.
5. Jurisprudence; and 2. Doctrine of Processual Presumption –
6. Supreme Court Circulars.
When invoking a foreign law, evidence of such
law must be presented. Otherwise, the court will
RULE 128 presume that the foreign law is the same as the
Philippine law (ATCI Overseas Corp. et al. v.
G ENERAL P ROVISIONS Echin, G.R. No. 178551, October 11, 2010).
SECTION 1. EVIDENCE DEFINED When evidence is not required
Evidence 1. Where no factual issue exists in a case;
2. Where the case presents only a question of
The means, sanctioned by the Rules of Court, of law, such question is resolved by the mere
ascertaining in a judicial proceeding the truth application of the relevant statutes or rules to
respecting a matter of fact. which no evidence is required;
3. When the pleadings in a civil case do not
Four component elements: tender an issue of fact (judgment on the
1. Evidence as a means of ascertainment – pleadings);
includes not only the procedure or manner of 4. Evidence may also be dispensed with by
ascertainment but also the evidentiary fact from agreement of the parties; or
which the truth respecting a matter of fact may be 5. Evidence is not also required on matters of
ascertained. judicial notice and on matters judicially admitted
2. Sanctioned by these rules – not excluded (Rule 129).
by the Rules of Court.
3. In a judicial proceeding – contemplates an Proof Evidence
action or proceeding filed in a court of law; not a The probative effect of
mere dispute between two contending parties. evidence and is the
4. The truth respecting a matter of fact – conviction or
refers to an issue of fact and is both substantive persuasion of the mind
(determines the facts to be established) and resulting from the
procedural (governs the manner of proving said It is the medium or
consideration of the
facts) (Herrera, Remedial Law Vol. 5, 1999 ed., means by which a fact
evidence.
pp.7-8). is proved or disproved.
Proof is not the
evidence itself. There
is proof only because
Purpose: To ascertain the truth respecting a matter of evidence.
of fact (Riano, Evidence The Bar Lectures Series,
2009 ed., p. 2).
Evidence Argumentation

The process of said hearing is to conduct a searching inquiry

presentation or into the voluntariness and full comprehension of
demonstration of the the consequences of the accused’s plea and for
The invocation of
jural relation between the prosecution to prove his guilt and the
counsel of ordinary
the parties; can be precise degree of culpability (Sec. 3, Rule 116).
rules of logic and
accomplished only by
rhetoric in the
the use of a number of
combination of
facts, the final logical
assumed facts 2. Pre-trial order – The order should not
result being the
establishment of the substantially change the indictment. Otherwise,
total fact. the case will be dismissed.
Every evidential question involves the relationship C. Special Proceedings – In a probate of a

between the factum probandum and the factum will, even if no person appears to contest the
probans. allowance thereof, the court may grant allowance
only if the will is proved to have been executed as
Factum Probandum is required by law (Sec. 5, Rule 76).
The ultimate fact or proposition sought to be

established. Note: At the time of the filing of the complaint or
information, there is no factum probandum yet. To
determine the probandum, there must first be an
answer, in civil cases, or the accused must enter a
Note: The rules do not fix a standard in
plea, in criminal cases. It cannot be ascertained by
ascertaining the probandum. It depends on the merely reading the complaint or information.
nature of the case presented before the courts.
Factum Probans
It may be ascertained in:
The material evidencing the proposition. It is the
A. Civil Cases
evidentiary fact by which the factum probandum is
1. Answer;
established.
2. Pre-trial order; and
3. Issues which are tried with the express or
implied consent of the parties (Sec. 5, Rule 10).
Factum Probandum Factum Probans
B. Criminal Cases Ultimate facts Intermediate facts
1. When the accused enters a plea during The fact or The fact or material
arraignment. proposition to be evidencing the
established proposition
Hypothetical Existent
General Rule: If a fact is admitted, there is no
more factum probandum because there is no
fact in issue. Absence of Vested Rights in the Rules on
Evidence
General Rule: No vested rights in the rules of
However, in cases where the accused enters a
evidence. Admissibility or inadmissibility of
plea of guilty to a capital offense, the court must
evidence is determined in accordance with the law
still order a summary hearing even if there is no
in force at the time the evidence is presented.
longer a factum probandum. The purpose of the
Evidence otherwise inadmissible under the law at

the time the action accrued, may be received in for the protection of the parties (e.g. Failure to
evidence provided that it is admissible under the object to the inadmissibility of secondary evidence
law in force at the time it is presented. The Rules in documentary evidence).
are subject to change by the SC subject to the
Exception: If the rule waived by the parties has
constitutional limitation on the enactment of ex post
facto laws. been established by law on grounds of public
policy, the waiver is void. Accordingly, the waiver of
the privilege against disclosure of secrets is void
(Francisco, Ricardo J., 1996; p.9).
Exception: In criminal cases, if the alteration of the
rules of evidence would, for instance, permit the
reception of a lesser quantum of evidence than Classification of evidence
what the law required at the time of the commission 1. Depending on its ability to establish the fact
in dispute, evidence may be:
of the offense in order to convict, then the a. Direct evidence — evidence which proves
retroactive application of such amendatory law the fact in dispute without the aid of any
would be unconstitutional for being ex post facto. inference or presumption.
b. Circumstantial evidence — proof of fact or
facts from which, taken either singly or
Rules of evidence are not self-executing. collectively, the existence of the particular fact
Confessions made without the benefit of counsel in dispute may be inferred as a necessary or
are still admissible in evidence if appellant failed to probable consequence (5 Moran).
make timely objections before the trial court
(People of the Philippines v. Samus, G.R. No. As to probative value, the Court considers
135957-58, September 27, 2002). circumstantial evidence as being of a nature
identical to direct evidence because no greater
degree of certainty is required when the
Construction of the Rules of Evidence evidence is circumstantial than when it is direct.
Liberally construed: Like all other provisions
under the Rules of Court, the rules of evidence 2. Depending on the degree of its value in
must be liberally construed (Sec.6, Rule 1, Rules of establishing a disputed fact, evidence may be:
Court). Rules of Procedure are mere tools intended a. Prima facie evidence — that which,
to facilitate rather than to frustrate the attainment of standing alone unexplained or uncontradicted,
justice (Quiambao v. Court of Appeals, G.R. No. is sufficient to maintain the proposition affirmed.
128305, March 28, 2005).
The Rules on Electronic Evidence shall likewise be Note: By itself, it is sufficient to establish the
construed liberally (Sec. 2, Rule 2, Rules on factum probandum if no evidence to the
Electronic Evidence). contrary appears.
Justice is most effectively and expeditiously

administered in the courts where trivial objections As to the prima facie evidence in Section 2
to the admission of proof are received with least of B.P. 22: If notice of non-payment by the
favor (Prats v. Phoenix, G.R. No. 28607, February drawee bank is not sent to the maker or drawer
21, 1929).
of the bounced check, or if there is no proof as
May the rules of evidence be waived? to when such notice was received by the drawer,
General Rule: Yes. The applicability of the rules is then the presumption of knowledge as provided
deemed waived upon failure to seasonably raise in Section 2 of B.P. 22 cannot arise, since
the objection. The rules of evidence are established [there] would simply be no way of reckoning the

crucial five-day period (Rico v. People of the primary evidence and admissible only in the
Philippines, G.R. No. 137191, November 18, absence of the latter.
2002).
4. Depending on its nature, evidence may be:
a. Object evidence — evidence directly
b. Conclusive evidence – evidence which is addressed to the senses of the court and is
incontrovertible or one which the law does not capable of being exhibited to, examined or
allow to be contradicted. viewed by the court. Also known as autoptic
proference or real or physical evidence.
b. Documentary evidence — supplied by
Note: DNA testing results that exclude the written instruments or derived from conventional
putative parent from paternity shall be symbols and letters by which ideas are
conclusive proof of non-paternity. If the value of represented on material substances.
the Probability of Paternity is less than 99.9%, c.Testimonial evidence — is verbal or oral
the results shall be considered as corroborative evidence. It is evidence which consists of the
evidence. If the value of the Probability of narration or deposition by one who has
Paternity is 99.9% or higher, there shall be a observed or has personal knowledge of that to
disputable presumption of paternity (Rule on which he is testifying.
DNA Evidence, Section 9, par. c). i. Positive evidence – when the witness
affirms that a fact did or did not occur, it is
entitled to greater weight since the witness
represents of his personal knowledge the
c.Corroborative evidence — additional evidence presence or absence of a fact.
of a different kind and character from that ii. Negative evidence – when a witness states
already given, tending to prove the same point. that he did not see or know of the occurrence
of a fact and there is total disclaimer of
Under the Rule on the Examination of a Child personal knowledge.
Witness, corroboration shall not be required of a
testimony of a child. His testimony, if credible by 5. Depending on its quality, evidence may be:
itself, shall be sufficient to support a finding of a. Admissible evidence — one that is
fact, conclusion or judgment subject to the relevant and competent.
standard of proof required in criminal and non- i. Relevant evidence — evidence having
criminal cases (A.M. No. 004-07-SC, Section value in reason as tending to prove any
22). matter provable in an action. A simple test of
relevancy is the ability of evidence to
persuade or if it can be of help to the fact-
finder in establishing the probability or
d. Cumulative evidence — additional improbability of a fact in issue.
evidence of the same kind and character ii. Competent evidence — Evidence is
proving the same fact. competent when it is not excluded by law in
a particular case.
3. Depending on its weight and acceptability,
evidence may be: b. Material evidence – evidence directed to
a. Primary or best evidence — evidence prove a fact in issue as determined by the rules
which affords the greatest certainty of the fact in of substantive law and pleadings.
question.
b. Secondary or substitutionary
evidence — evidence which is inferior to

c.Credible evidence — it is not only admissible Evidence in Evidence in

evidence but also believable and used by the Civil Cases Criminal
court in deciding a case. Evidence is credible, if Cases
worthy of belief.
The claimant The
Rebuttal and sur-rebuttal evidence must show a prosecution
1. Rebuttal evidence – that kind, which is Quantum of preponderan must prove
given to explain, repel, counteract or disprove Proof ce of guilt beyond
facts given in evidence by the adverse party. It is evidence. reasonable
evidence in denial of some affirmative case or doubt.
fact which the adverse party has attempted to
prove. An offer of In criminal
2. Sur-rebuttal evidence – a reply to rebuttal compromise cases,
evidence. When the plaintiff in rebuttal is is not an except those
permitted to introduce new matter, defendants admission of involving
should be permitted to introduce evidence in sur- liability and is quasi-
rebuttal, and to decline to permit him to do so is not offenses or
error, especially when the evidence in sur-rebuttal
admissible those
is for the first time made competent by the
evidence introduced by the plaintiff in rebuttal, but against the allowed by
defendant should ask for the right to meet the offeror. law to be
Offer of
new matter. Compromise compromised
, the offer of
compromise
SECTION 2. SCOPE by the
The rules of evidence shall be the same in all accused may
courts and in all trials and hearings, except as be received
otherwise provided by law or these rules. in evidence
as an implied
admission of
Applicability of the rules on evidence guilt.
General Rule: The rules of evidence are applicable General General
to both civil and criminal cases (Sec. 2, Rule 128 General
denial is denial is not
and Sec. 3, Rule 1). They also apply to special Denial
allowed. allowed.
proceedings.
Judicial Withdrawn
Withdrawal admission plea is
Exception: When the law otherwise provides, such withdrawn inadmissible.
of Plea/
as those enumerated under Sec. 4, Rule 1 which becomes
are (NICOLE): Admission extrajudicial
1. Naturalization proceedings; admission.
2. Insolvency proceedings;
3. Cadastral proceedings; Generally, The accused
4. Other cases as may be provided for by law; there exists enjoys the
Presumption no presumption
5. Land registration cases; and of Innocence
6. Election cases. presumption of his
in favor of innocence.
either party,

Evidence in Evidence in Evidence in Evidence in

Civil Cases Criminal Civil Cases Criminal
Cases Cases
except in Patient)
cases
specifically A party or The accused
provided for defendant cannot be
by law. may be compelled to
compelled to be a witness.
The party Accused is be a witness
Equipondera
who has the acquitted. provided
nce of
Evidence burden of written
proof loses. Compulsion interrogatorie
of a Witness s (Sec. 6,
Not More than Rule 25) and
applicable. one is request for
required.
admission
Note: The (Sec. 5, Rule
circumstantial 26) have
evidence been served
presented and upon him.
proved must
constitute an Cross- Not Applicable
unbroken Examination applicable
chain which in Summary
leads to one Procedure
fair and
Presence of reasonable
Circumstanti conclusion
Note: The Rules of Evidence applies even in cases
al Evidence pointing to
covered by the Rules on Summary Procedure.
accused, to
the exclusion
of all others,
as the guilty In civil cases covered by the Rules on Summary
person Procedure, where the parties are required to submit
(People of the position papers attaching thereto affidavits of
Philippines v. witnesses, thus obviating the application of the
Gilbert Baulite Rules on Testimonial Evidence, the rest of the
and Liberato
Rules on Evidence still apply. Therefore, any
Baulite, G.R.
document or object evidence presented by the
No.
137599, Octo parties in their respective position papers must still
ber 8, 2001). conform to the Rules on Evidence.
In criminal cases covered by the Rules on

Privileged Applicable Not
Summary Procedure, while the affidavits of the
Communicat applicable parties and their witnesses constitute their direct
ion (Doctor- testimony, they may still be subject to cross-

examination, redirect or re-cross examination. The Note: Relevance is determined by logic, human
Rules on Evidence still apply on any document or experience and common sense. Competence is
object evidence presented. determined by law.
The rules of evidence are not strictly observed in

proceedings before administrative bodies. Two axioms of admissibility
Administrative bodies are not bound by the
technical niceties of law and procedure and the 1. Axiom of relevance – None but facts
rules obtaining in the courts of law (Bantolino v. having rational probative value are admissible.
Coca-Cola Bottlers Phils., Inc., G.R. No. 153660, It merely prescribes that whatever is presented as
June 10, 2003). evidence shall be presented on the hypothesis
that it is calculated according to the prevailing
standards of reasoning to effect rational
Even if not bound by technical rules of procedure, persuasion. In short, it just means that the
the findings of facts of administrative bodies are evidence must be relevant.
respected as long as they are supported by
substantial evidence, even if such evidence is not
overwhelming or preponderant (Avenido v. Civil Components of relevant evidence:
Service Commission, G.R. No. 177666, April 30, a. Materiality – whether the evidence is
2008). offered upon a matter properly in issue – i.e.,
whether it is directed toward a fact within the
range of allowable controversy.
Note: Quasi-judicial bodies are given the authority b. Probativeness – the tendency of evidence
to make rules of procedure. However, they have no to establish the proposition that it is offered to
power to make their own rules concerning quantum prove.
of evidence. Such power is vested in the Supreme
Court (Sec. 5, Art. VIII, Constitution). Degree of probativeness required: to be
relevant, it need not be conclusive, the
evidence must merely help a little (Herrera, p.
SECTION 3. ADMISSIBILITY OF EVIDENCE 60).
Requisites for admissibility of evidence: The

evidence must be: 2. Axiom of competence – Facts having
1. Relevant — such a relation to the fact in rational probative value are admissible unless
issue as to induce belief in its existence or non- some specific rule forbids their admission.
existence. A matter of relationship between the
evidence and a fact in issue.
Evidence on the credibility or lack of it of a The rules of exclusion are rules of exception to
witness is always relevant. In every proceeding, the general admissibility of all that is rational and
the credibility of the witness is always an issue. probative.
2. Competent — if not excluded by the Rules

on Evidence, the law and the Constitution. Types of admissibility according to
jurisprudence
1. Multiple admissibility of evidence: 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 Any objection, defect or irregularity attending an
its admissibility therefor. arrest or its consequences should be made
2. Conditional admissibility of evidence: before an entry of plea in the arraignment;
Where the evidence at the time of its offer otherwise, the objection would be deemed waived
appears to be immaterial or irrelevant unless it is (People v. Llavore, G.R. No. 133892, Aug. 12,
connected with the other facts to be subsequently 2003).
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 from the record. Scope of Exclusionary Rules: (Rights
3. Curative admissibility of evidence: Protected; Art. III – Bill of Rights of the 1987
Where improper evidence was admitted over the Constitution)
objection of the opposing party, he should be a. Right against unreasonable search and
permitted to contradict it with similar improper seizure (Sec.2);
evidence. Otherwise it would result in disparity of b. Right to privacy and inviolability of
rulings to his prejudice (fighting fire with fire). communication (Sec.3);
c.Right of a person under investigation for an
Admissibility of electronic documents: An offense (Sec.12);
electronic document is admissible in evidence if (1) d. Right against self-incrimination (Sec.17).
it complies with the rules on admissibility prescribed
by the Rules of Court and related laws and (2) is Doctrine of the “Fruit of the Poisonous Tree”
authenticated in the manner prescribed by the
Rules on Electronic Evidence (Sec. 2, Rule 3, All evidence (the fruit) derived from an illegal
Rules on Electronic Evidence). search (the poisonous tree) must be suppressed.
Admissibility Weight
The doctrine applies where the evidence is
Determined by its Pertains to its “secondary” or “derivative”. For instance, an
relevance and tendency to convince illegal arrest may result in the arrestee giving a
competence and persuade confession. In such case, it is necessary to
determine whether the derivative evidence is
tainted with a constitutional violation, that is,
Guidelines provided in whether the evidence is fruit of the poisonous tree.
Logic and law Rule 133 and
decisional rules of
Supreme Court.
Likewise known as the “but for” test or “taint
doctrine” which means that the evidence would
Rules of exclusion vs. exclusionary rules not have come to light but for the illegal action of
1. Rules of Exclusion – these are governed the police.
by the rules on evidence.
2. Exclusionary Rules – these are commonly
used for evidence excluded by the Constitution. Rationale: Evidence illegally obtained by the State
In its simplest form, these rules are applied to should not be used to gain other evidence because
cases where the challenged evidence is quite the illegally obtained evidence taints all evidence
clearly direct or primary in its relationship to the subsequently obtained (Herrera, p. 39).
prior arrest or search (Herrera, p.37).

a. Treason;
b. Espionage;
ANT I WIRE -T APPING ACT c.Provoking war and disloyalty in case of war;
R.A. NO . 4200 d. Piracy;
e. Mutiny in the high seas;
f. Rebellion;
g. Conspiracy and proposal to commit
Unlawful Acts: rebellion;
h. Inciting to rebellion;
1. Any person who, without authority from all
i. Sedition;
the parties to the private communication or
j. Conspiracy to commit sedition;
spoken word, does any of the following: (Sec.1, k. Inciting to sedition;
par. 1) l. Kidnapping as defined by the RPC;
a. Tap any wire; or m. Violations of CA 616 punishing espionage
b. Secretly overhear or intercept such and other offenses against national security.
communication or spoken word by using any
other device or arrangement; or Note: The written order authorizing the peace
c.Record such private communication or spoken
officer shall only be issued or granted upon:
word by using a device commonly known as
1. Written application; and
dictaphone, or dictagraph or detectaphone or 2. Examination under oath and affirmation of
walkie-talkie or tape recorder or however the applicant and the witnesses showing that
otherwise described. there are:
2. Any person, whether participant or not in the a. Reasonable grounds to believe that any of
above penalized acts, who: (Sec. 1, par. 2)
the crimes has been committed or is being
a. Knowingly possesses any tape record, wire
committed or is about to be committed;
record, disk record or any other such record or
b. Reasonable grounds to believe that
copies thereof, of any communication or spoken essential evidence will be obtained; and
word secured either before or after the effective c.No other means readily available for obtaining
date of this Act in the manner prohibited by law; such evidence (Sec. 3).
or
b. Replays the same for any other person; or Admissibility: Any communication or spoken
c.Communicates the contents thereof, either
word, or the existence, contents, substance,
verbally or in writing; or
purport, effect, or meaning of the same or any part
d. Furnishes transcriptions thereof, whether
thereof, or any information therein contained,
complete or partial, to any other person. obtained or secured by any person in violation of
3. Any person who shall aid, permit, or cause this Act shall be inadmissible in evidence in any
to be done any of the acts declared to be unlawful judicial, quasi-judicial, or administrative hearing or
(Sec.2). investigation (Sec. 4).
4. Any person, who shall violate the provisions
of Section b of the exempted acts below or of an Law limited to wiretapping device: The law refers
order issued thereunder, or aids, permits or
to (1) a “tap” of a wire or cable or (2) the use of a
causes such violations (Sec.2). “device or arrangement” for the purpose of secretly
overhearing, intercepting, or recording the
Exempted acts:
communication. Thus there must be either a
1. Use of such record or any copies thereof as physical interruption through wiretap or the
evidence in any civil, criminal investigation or trial
deliberate installation of device or arrangement
of offenses as mentioned below; (Sec.1, par.2)
(Herrera, p. 45).
2. Any peace officer, who is authorized by the
written order of the court, to execute any of the Note: An extension telephone line cannot be
acts declared to be unlawful in cases involving placed in the same category as a dictaphone,
the crimes of: (Sec.3, par.1)

dictagraph or the other devices enumerated in discussion, or written or spoken words between the
Section 1 of R.A. No. 4200 as the use thereof following:
cannot be considered as ‘tapping’ the wire or cable
of a telephone line (Gaanan v. Intermediate a. Members of judicially declared and
Appellate Court, G.R. No.L-69809, October 16, outlawed terrorist organization, association, or
1986). b. Group of persons or of any person charged
with or suspected of the crime of terrorism or
The Bill of Rights can only be invoked if there is conspiracy to commit terrorism.
governmental interference through public officials
or employees (State Action) (People of the
Any of the above acts may not, however, be done
Philippines v. Marti, G.R. No. 81561, January 18,
1991). without a written order of the Court of Appeals.
Yet, while constitutional solace hardly extends to

relationships between private individuals, the SECTION 4. RELEVANCY; COLLATERAL
breach of private rights by another private individual MATTERS
can lead to a criminal indictment or suit for
damages (Waterous Drug Corporation v. NLRC, Collateral Matters
G.R. No. 115282, October 16, 1997, 747, cited by
Peralta, Jr., Perspectives of Evidence, 2005 Collateral matters refer to matters other than the
Edition, pp.9-11). fact in issue. These are matters outside the
controversy, or are not directly connected with the
principal matter or issue in dispute, as indicated in
Tape recording: The tape recording of the incident the pleadings of the parties.
confirming the witness’ testimony is admissible in
evidence since the heated argument in the police Evidence on collateral matters shall not be allowed,
station between the accused and the deceased except when it tends in any reasonable degree to
was not a private one. What R.A. No. 4200 (Anti- establish the probability or improbability of the fact
Wire Tapping Law) prohibits is the overhearing, in issue.
intercepting or recording of private communication. Kinds of collateral matters
1. Prospectant/Antecedent – those
preceding the fact in issue but pointing forward to
Moreover, a voice recording is authenticated by the
it (e.g. moral character, motive, conspiracy);
testimony of a witness: (a) That he personally 2. Concomitant – those accompanying the
recorded the conversation; (b) The tape played in fact in issue and pointing to it (e.g. alibi,
court was the one recorded; and (c) That the voices opportunity, incompatibility);
in the tape are those of the persons such are 3. Retrospectant/Subsequent – those
claimed to belong (Navarro v. Court of Appeals, et succeeding the fact in issue but pointing
al. August 26, 1999). backward to it (e.g. flight, concealment,
fingerprints, bloodstains).
Surveillance of suspects and interception and

recording of communications under the Human RULE 129
Security Act of 2007 (R.A. No 9372): Under
WHAT NEED NOT BE P ROVED
Section 7 of the Human Security Act of 2007, the
provisions of RA 4200 notwithstanding, a police or
law enforcement official may listen to, intercept and
record any communication, message, conversation,

Matters need not be proved: (ISA – JP) 6. The official acts of the legislative, executive
1. Immaterial allegations; and judicial departments of the Philippines;
2. Facts admitted or not denied provided they 7. The laws of nature;
have been sufficiently alleged (Sec. 1, Rule 8); 8. The measure of time; and
3. Agreed and admitted facts (Sec. 4, Rule 9. The geographical divisions.
129);
4. Facts subject to judicial notice (Secs. 1-3, The Law of Nations
Rule 129); and The compilation of rules, which, by common
5. Facts legally presumed (Rule 131). consent of mankind, have been acquiesced in as
law. It is subject to mandatory judicial notice (Sec.
Judicial Notice 1, Rule 129).
The cognizance of certain facts which judges may
properly take and act upon without proof. Rationale: The Philippines adopts the generally
accepted principles of international law as part of
Judicial notice is based on considerations of the law of the land (Sec. 2, Art. II, Constitution of
expediency and convenience. It displaces the the Philippines). They are therefore, technically in
necessity for evidence on a settled matter to save the nature of local laws and hence, subject to
time, labor and expense in securing and introducing mandatory judicial notice (Herrera, p. 89).
such evidence.
Foreign Municipal Laws
Note: Judicial notice is not equivalent to judicial General Rule: They must be proved as any other
knowledge. A fact may be of judicial notice and not fact. They do not prove themselves nor can courts
of a judge’s personal knowledge and vice versa. take judicial notice of them. They must be alleged
and proved in accordance with Sec. 24, Rule 132
The rule refers to facts which ought to be known to as an official record.
judges because of their judicial functions. A judge is
thus not justified in refusing to take judicial notice of Exceptions:
a fact which is not within his knowledge/memory if 1. Foreign statute accepted by the government
the fact in question is subject of judicial cognizance. (Republic of the Philippines v. Emilio Guanzon,
G.R. No. L-22374, December 18, 1974);
The function of judicial notice is to abbreviate 2. Common law (Herrera, pp. 84-85);
litigation by the admission of matters that need no 3. Actual knowledge by the Court;
evidence because judicial notice is a substitute for 4. Foreign law is generally well known; and
formal proof of a matter by evidence (People v. 5. Stipulation by the parties (Phil. Commercial
Rowland, 4 Cal 4th 238, 14 Cal Rptr 2d 377; 29 Am & Industrial Bank, v. Escolin, et al., G.R. No. L-
Jur 2d, Evidence, S24, 1994). 27896, March 29, 1974).
When parties in a case agree on what the foreign

SECTION 1. JUDICIAL NOTICE, WHEN law provides, these are admissions of fact which
MANDATORY the other parties and the court are made to rely and
act upon; hence they are in estoppel to
Mandatory judicial notice (EPLACO – LMG) subsequently take a contrary position (Phil.
1. The existence and territorial extent of states; Commercial & Industrial Bank, v. Escolin, et al.,
2. Their political history, forms of government, supra).
and symbols of nationality;
3. The law of nations; Doctrine of Processual Presumption
4. The admiralty and maritime courts of the Lays down the presumption that the foreign law is
world and their seals; the same as the law of the forum if the foreign law,
5. The political constitution and history of the though properly applicable, is either not alleged, or
Philippines;

if alleged, is not duly proved before a competent adopted into the present action, or attached to the
court (ATCI Overseas Corp. et al. v. Echin, supra). records of the present action by court order;
2. When the present action is closely
SECTION 2. JUDICIAL NOTICE, WHEN interrelated to another case pending between the
DISCRETIONARY same parties;
3. Where the interest of the public in
Discretionary judicial notice ascertaining the truth are of paramount
1. Matters which are of public knowledge; importance; or
2. Matters capable of unquestionable 4. Where there is finality of a judgment in
demonstration; or another case that was previously pending
3. Matters ought to be known to judges determination and therefore, res judicata.
because of their judicial functions. (Herrera, pp. 89-90)
Test of notoriety for the courts to take judicial Note: The exceptions are applicable only when the
notice of facts: Whether the fact involved is so case is clearly referred to or the original or part
notoriously known as to make it proper to assume thereof are actually withdrawn from the archives
its existence without proof. There must be and admitted as part of the record of the case then
unconditional acceptance by the public or that pending (Riano, p. 92).
segment of the public where the fact is of relevant
importance. Judicial notice of municipal ordinances: Inferior
courts should take mandatory judicial notice of
Note: The fact that a belief is not universal is not municipal or city ordinances in force in their
controlling for it is seldom that any belief is territorial jurisdiction.
accepted by everyone. It is enough that the matters
are familiarly known to the majority of mankind or The RTC should take judicial notice of
those persons familiar with the particular matter in municipal ordinances only when:
question (Republic of the Philippines v. Court of 1. They are expressly authorized by statute; or
Appeals, G.R. No. 54886, September 10, 1981). 2. On appeals of decisions by the inferior court
when such courts had taken notice of a municipal
Judicial notice rests on the wisdom and discretion ordinance.
of the court. The power to take judicial notice must
be exercised with caution and care must be taken The RTC should take judicial notice of municipal
that the requisite notoriety exists. Any reasonable ordinances in force in the municipalities within their
doubt on the matter sought to be judicially noticed jurisdiction only when: 1) so required by law; or 2)
must be resolved against the taking of judicial on appeal to it from the inferior court in which the
notice (State Prosecutors v. Muro, 236 SCRA 505). latter judicial took notice of (Riano, p. 91).
Judicial notice of records of another case The Rules before Appellate Courts with regard
previously tried to Court Records:
General Rule: Courts are not authorized to take 1. An appellate court is without authority to
judicial notice of the contents of the records of other take notice or take into consideration the judicial
cases, even when such cases have been tried or records of a case previously decided by the trial
are pending in the same court and pending before court upon which said court did not have the
the same judge (People of the Philippines v. opportunity to pass;
Hernandez, G.R. No. 108028, July 30, 1996). 2. An appellate court cannot consult the
records in another case to ascertain a fact not
Exceptions: shown by the records of the case before it but
1. When, at the initiative of the judge or of the could go to its other decisions for the law that is
parties, and without objection of any party, the determinative of or applicable to the case under
records of the previous action are read and review;

3. The Supreme Court can also take judicial Purpose of hearing: Not for the presentation of
notice of its record in a previous case in evidence, but to afford the parties reasonable
connection with the conduct of litigant or witness opportunity to present information relevant to the
in a similar matter; and propriety of taking such judicial notice or the tenor
4. Lower courts, from the Court of Appeals of the matter to be noticed. (People vs. Preslie, 70
down to the lowest level, must take judicial notice Cal. App. 3d 486)
of decisions of the Supreme Court, as they are in
fact duty bound to know the rulings of the high Mandatory Discretionary
tribunal and to apply them in the adjudication of Judicial Notice Judicial Notice
cases, they being part of the legal system. Court is NOT
Court is compelled to
compelled to take
Judicial notice of other matters take judicial notice
judicial notice
1. The trial court can take judicial notice of the May be at court’s own
general increase in rentals of real estate Takes place at court’s
initiative, or on request
especially of business establishments (Catungal own initiative
of a party
v. Hao, G.R. No. 134972, March 22, 2001). Needs hearing and
2. A court cannot take judicial notice of an No hearing presentation of
administrative regulation or of a statute that is not evidence
yet effective (State Prosecutors v. Muro, 236
SCRA 505).
3. In the age of modern technology, the court Judicial notice of the age of the victim is improper,
may take judicial notice that business despite the defense counsel’s admission, thereof
transactions may be made by individuals through acceding to the prosecution’s motion. As required
teleconferencing. However, there is NO judicial by Section 3 of Rule 129, as to any other matters
notice that one was conducted in a particular such as age, a hearing is required before courts
case (Expertravel and Tours, Inc. v. Court of can take judicial notice of such fact (People of the
Appeals, 459 SCRA 147). Philippines v. Tundag, supra).
4. The Court has likewise taken judicial notice
of the Filipina’s inbred modesty and shyness and SECTION 4. JUDICIAL ADMISSION
her antipathy in publicly airing acts which blemish
her honor and virtue (People of the Philippines v. Judicial Admission
Tundag, G.R. No. 135695, October 12, 2000). An admission, verbal or written, made by a party in
5. It is a matter of judicial knowledge that the course of the proceedings.
persons have killed or committed serious
offenses for no reason at all (People of the Elements:
Philippines v. Zeta G.R. No. 178541, March 27, 1. The same must be made by a party to the
2008). case;
2. The admission must be made in the course
SECTION 3. JUDICIAL NOTICE, WHEN of the proceedings in the same case; and
HEARING NECESSARY 3. There is no particular form for an admission
1. During trial, the court, on its own initiative, - it may either be written or verbal.
or on request of a party, may announce its
intention to take judicial notice of any matter and Note: Lack of jurisdiction over the subject matter
allow the parties to be heard thereon. cannot be admitted because jurisdiction over the
2. After trial, and before judgment or on subject matter is conferred by law and not by
appeal, the proper court, on its own initiative or stipulation of parties (Veneracion v. Mancilla et al.,
on request of a party, may take judicial notice of G.R. No. 158238, July 20, 2006).
any matter and allow the parties to be heard
thereon if such matter is decisive of a material Judicial admissions may be made in:
issue in the case. 1. The pleadings filed by the parties;

2. In the course of the trial either by verbal or Note: Claims and defenses alleged in the
written manifestations or stipulations; superseded pleading which are not incorporated in
3. In other stages of the judicial proceeding, as the amended pleading shall be deemed waived
in the pre-trial of the case; or (Sec. 8, Rule 10).
4. Admissions obtained through depositions,
written interrogatories or requests for admissions. Where the complaint is amended, it loses its status
as a pleading and ceases to be a judicial
Other cases of judicial admissions: admission. What constitutes admissions are those
1. When there is failure to deny the allegations stated in the amended pleading.
in the other party’s pleading; or
2. Negative pregnant. Judicial admissions are always conclusive upon the
admitter and do not require formal offer as
Judicial admission can be made by either a party or evidence, unlike in the case of extra-judicial
counsel. admissions.
Admissions made by counsel Facts alleged in a party’s pleadings are deemed

General Rule: Admissions made by counsel are admissions of that party and are binding upon him,
binding upon his client. but this is not an absolute and inflexible rule. An
answer is a mere statement of fact which the party
Rationale: The rule serves as an instrument to filing it expects to prove, but it is not evidence (Atillo
advance the ends of justice. III v. Court of Appeals, G.R. No. 119053, January
23, 1997).
Exception: The court has the power to except a
particular case from the operation of the rule Rule on dismissed pleadings: Admissions made
whenever the purposes of justice require it (Aguilar in pleadings that have been dismissed are merely
v. Court of Appeals, G.R. No. 114282, November extrajudicial admissions (Servicewide
28, 1995). Specialists, Inc. v. Court of Appeals, G.R. No.
117728, June 26, 1996).
Note: Two situations in criminal cases:
1. If it is a criminal case undergoing trial, the Note: Not all allegations or admissions in
judicial admission by counsel can be received in pleadings in civil cases may be considered as
evidence against the defendant even though judicial admission because the Rules on Civil
against the conformity of said defendant or even Procedure allow a litigant to make hypothetical
without his conformity. admissions in his pleadings, such as:
2. In the course of pre-trial conference, any 1. When a defendant sets up affirmative
admission must be reduced in writing and signed defense(s) in his answer; or
by both the defendant and his counsel before the 2. When a defendant files a motion to dismiss
admission can be received in evidence (Rule 118, based on lack of jurisdiction.
Sec. 2).
Judicial admissions made in one case are
Rule on amended pleadings: Admissions in admissible at the trial of another case provided they
superseded pleadings may be received in evidence are proved and are pertinent to the issue involved
against the pleader (Sec. 8, Rule 10). Such in the latter, unless:
admissions are considered as extrajudicial a. The said admissions were made only for
admissions. The original pleading must be proved purposes of the first case, as in the rule of implied
by the party who relies thereon by formally offering admissions and their effects under Rule 26;
it in evidence (Torres v. Court of Appeals, G.R. No. b. The same were withdrawn with the
L-37420-21, July 31, 1984). permission of the court therein; or
c.The court deems it proper to relieve the party
therefrom.

Rules on pleadings not filed Admissions during

1. If signed by the party, the admission arraignment may be
contained in the pleading is considered as an withdrawn at any time
extra-judicial admission. Admissions in a before the judgment of
2. If signed by the attorney, it is not pleading which had conviction becomes
admissible. An attorney has authority to make been withdrawn or final, but such plea of
statements on behalf of his client only in open superseded by an guilty later withdrawn
court or in a pleading actually filed. amended pleading are is not admissible in
considered extra- evidence against the
Rule on actionable documents: When a party’s judicial admission. accused who made
action is founded on a written instrument, the the plea.
genuineness and due execution of the instrument
shall be deemed admitted unless the adverse party, It is not even
under oath specifically denies it and sets forth what considered an extra-
he claims to be the facts. judicial admission.
Rule on specific denial: By specific denial is

meant that the defendant must specify each
material allegation of fact the truth of which he does Judicial admissions may be contradicted only
not admit and, whenever practicable, shall set forth when it is shown that:
the substance of the matters upon which he relies 1. It was made through palpable mistake; or
to support his denial, otherwise the denial becomes 2. That no such admission was made (Sec. 4,
a general denial, which amounts to an admission of Rule 129).
the allegations in the complaint and justifies a
summary judgment (Agpalo, Handbook on Remedy of a party who gave a judicial
Evidence, p.31). admission:
1. In case of a written judicial admission:
Is the self-serving rule applicable to judicial Motion to withdraw the pleadings, motion or other
admissions? No. The self-serving rule which written instrument containing such admission;
prohibits the admission or declaration of a witness 2. In case of an oral judicial admission:
in his favor applies only to extra-judicial Counsel in open court may move for the
admissions. If the declaration is made in open exclusion of such admission.
court, such as raw evidence and is not self-serving.
It is admissible because the witness may be cross-
examined on that matter. However, whether it will
be credible or not, is a matter of appreciation on the
part of the court. RULE 130
RULES OF ADM ISSIBILIT Y
Admissions in Civil Admissions in Rules of Exclusion
Cases Criminal Cases
1. Object Evidence
General Rule: There are no rules for the
exclusion of object evidence but it must be
relevant and competent.
Exceptions:
a. The exhibition of such object is contrary to

public policy, morals or decency;

b. Observation of such evidence in an ocular 1. Direct – evidence can prove directly the fact
inspection would result in delays, inconvenience, for which it is offered. (e.g. In a personal injury
and unnecessary expenses which are out of case, the direct real evidence of disfiguring injury
proportion to its evidentiary value; would be an exhibition to the court of the injury
c. The object evidence would be misleading or itself.)
confusing; 2. Circumstantial – facts about the object are
d. The testimonial or documentary evidence proved as the basis for an inference that other
presented in court already portrays the object facts are true. (e.g. In a paternity case, a baby
such that a view thereof is unnecessary; may be shown and the appearance will be
e. Derivative evidence or those acquired compared with that of the alleged father; if they
through illegal searches and seizures. look alike, the court may then draw an inference
2. Documentary Evidence that the parental relationship exists.)
a. Best Evidence Rule
b. Parol Evidence Rule How object evidence presented:
3. Testimonial Evidence 1. Exhibited
a. Rules on Hearsay Evidence 2. Examined
b. Opinion Evidence 3. Viewed
c. Character Evidence
Requisites for admissibility of object evidence:
SECTION 1. OBJECT AS EVIDENCE (RAHPA)
1. The object must be relevant to the fact in
issue;
Object evidence 2. The object must be authenticated by a
competent witness before it is admitted;
That which is addressed to the senses of the court.
3. The object must not be hearsay;
It is not limited to view of an object but extends to 4. The object must not be privileged; and
visual, auditory, tactile, gustatory, olfactory 5. It must meet any additional requirement set
(VATGO). It is the most credible kind of evidence by law. (E.g. it must not be the result of an illegal
(Moran, Comments on the Rules of Court). search and seizure)
Authentication: to be admissible in evidence, the

Physical evidence object sought to be offered must be shown to have
been the very same thing in issue and is what it is
A mute but eloquent manifestation of truth, and it claimed to be.
ranks high in the hierarchy of trustworthy
evidence—where the physical evidence runs Even though the object evidence may contain false
counter to the testimonial evidence, the physical information such as falsified books kept by the
evidence should prevail (Bank of the Philippine defendant, it is authentic in so far as it is introduced
Islands v. Reyes, G.R. No. 157177, February 11, by the prosecution for the purpose of showing
2008). falsity.
Purposes of authentication:
1. To prevent the introduction of an object
Object evidence is also known as (RDAP): different from the one testified about; and
1. Real evidence 2. To ensure that there has been no significant
2. Demonstrative evidence changes in the object's condition.
3. Autoptic proference; and
4. Physical evidence. Types of authentication
1. By testimony – If the real evidence is of a
Object evidence may be: type which can be readily identified by a witness,

the witness’ testimony will be sufficient Chain of Custody in Drug-related Cases

authentication;
2. By chain of custody – If the real evidence Doctrine of Chain of Custody
is of a type which cannot easily be recognized or The duly recorded authorized movements and
readily be confused or tampered with, the custody of seized drugs or controlled chemicals or
proponent must present evidence of its chain of plant sources of dangerous drugs or laboratory
custody. It must be shown that there was a strong equipment of each stage, from the time of
probability of correct identification (Herrera, p. seizure/confiscation to receipt in the forensic
134). laboratory to safekeeping to presentation in court
for destruction. Such record of movements and
Object evidence and the right against self- custody of seized item shall include the identity and
incrimination: The right against self-incrimination signature of the person who held temporary
cannot be invoked against object evidence because custody of the seized item, the date and time when
no testimonial compulsion is involved. such transfer of custody were made in the course
of safekeeping and used in court as evidence, and
Categories of object evidence the final disposition (Section 1, DDB Regulation No.
A. For purposes of presentation in court, an 1, Series of 2002).
object evidence may be that which consists in:
1. The exhibition or production of the object How conducted?
inside or outside the courtroom; 1. The apprehending team shall make a
2. The inspection of the object outside the physical inventory and photograph of the objects
courtroom; and seized. It must be with the presence of:
3. The making of an experiment a. The accused or his representative;
(demonstrative evidence) (Moran). b. Representative from the media;
B. For purposes of authentication of an object, c.Representative from the Department of Justice;
object evidence may be classified into: and
1. Unique objects - Objects that have readily d. Any elected public official.
identifiable marks (e.g. a caliber 38 revolver 2. Within 24 hours, the objects seized must be
with a serial number); submitted to the PDEA for qualitative and
2. Objects made unique – are objects that quantitative examination.
are made readily identifiable (e.g. a typical 3. Within 24 hours after receipt, a certification
kitchen knife which the witness can readily of the results must be issued by the forensic
identify in court if he claims that he made the laboratory.
thing acquire a unique characteristic by placing If the volume does not allow completion of testing
identifying marks thereon); and within the time frame, partial results may be
3. Non-unique objects – these are objects issued. Thereafter, the completed result must be
with no identifying marks and cannot be marked issued within the next 24 hours.
(e.g. drops of blood or oil, drugs in powder form, 4. After filing the criminal case, the court shall
fiber). conduct an ocular inspection within 72 hours.
Under the third category, the proponent of the Through the PDEA, destruction or burning of the
evidence must establish a chain of custody. The objects shall proceed.
links to the chain are the people who actually 5. The Board shall issue a sworn certificate of
handled or had custody of the object. Each of the fact of destruction or burning to be submitted
them must show how he received the object, to the court.
how he handled it to prevent substitution and 6. The alleged offender, his representative or
how it was transferred to another. counsel is allowed to personally observe the
proceedings.
Note: When the purpose of presenting a writing in Their presence is not an admission of guilt to the
court is to prove its existence, such writing is not commission of the crime.
documentary evidence but is an object evidence.

7. After promulgation and judgment, the and will not make the accused’s arrest illegal
prosecutor shall inform the Board. It shall then provided:
request the court for leave to turn over the a. There is justifiable ground; and
representative samples to the PDEA for proper b. The integrity and evidentiary value of the
disposition and destruction within 24 hours from items is properly preserved (People of the
receipt (Sec. 21, Comprehensive Dangerous Philippines v. Cardenas, G. R. No. 190342,
Drugs Act of 2002). March 21, 2012).
Note: The existence of the drug is the very corpus

delicti of the crime of illegal possession of Note: The chain of custody rule also applies in the
dangerous drugs and, thus, a condition sine qua assessment of the probative value of DNA
non for conviction. In order to establish the evidence. Issues on how the biological samples
existence of the drug, its chain of custody must be were collected, handled, and the possibility of
sufficiently established. The chain of custody contamination will be taken into consideration (Sec.
requirement is essential to ensure that doubts 6 [a], Rule on DNA Evidence).
regarding the identity of the evidence are removed
through the monitoring and tracking of the Ocular inspection or “view”: The court can go to
movements of the seized drugs from the accused, the place where the object is located, when the
to the police, to the forensic chemist, and finally to object evidence cannot be brought to court
the court (People of the Philippines v. Martinez, et
because it is immovable or inconvenient to remove
al. G.R. No.191366, December 13, 2010). (Herrera, p144-145).
Photographs in drug-related cases are not View is part of trial: The inspection or view
sufficient. outside the courtroom is a part of the trial.
Inasmuch as evidence is thereby being received,
Marking of the seized drugs: The marking is done
such inspection should be made in the presence of
immediately after the seizure. It is the starting point
the parties or at least with previous notice to them
of the custodial link and is crucial in proving the of the time and place set for the view.
chain of custody (People of the Philippines v.
Alejandro, G.R. No. 176350, August 10, 2011).
Sample of the objects seized is not

substitution: It was taken from the very objects
seized.
To require the whole amount to be presented in

court would result to inconvenience. As long as a
representative sample duly weighed and recorded
is retained, there is no substitution and the sample
is admissible in evidence (Sec. 21(4), RA No.
9165).
Proving the existence of the sample: The

sample’s existence can be proved through an initial
certification and a subsequent ocular inspection
done by the court hearing the case.
Non-compliance to the doctrine of chain of

custody (Sec. 21, R.A. No. 9165): It is not fatal

Real Evidence Demonstrative d. Inconvenience and unnecessary expenses; and

Evidence e. Confusing or misleading.
Tangible object that Tangible evidence that Note: But when the exhibition is necessary to the
played some actual merely illustrates a ends of justice, notions of decency and delicacy of
role in the matter that matter of importance feeling will not be allowed to prevail (Herrera, p.
gave rise to the in the litigation (e.g. 157).
litigation (e.g. gun, picture, graph).
product). RULE ON DNA E VIDENCE
No probative value in
If presented in court, itself but serve merely
there is no need to as a visual aid to the ((A.M. No. 06-11-5-SC, October 15, 2007)
present demonstrative court in
evidence. comprehending verbal
testimony of a witness
Effectivity: October 15, 2007
or other evidence.
Scope: The Rule shall apply whenever DNA

Admissibility: depends
evidence, as defined in Section 3 hereof, is offered,
on laying the proper
used, or proposed to be offered or used as
foundation for the
evidence in all criminal and civil actions as well as
evidence; if it
special proceedings.
sufficiently and
accurately represent
the object it seeks to
demonstrate or Biological sample
represent Any organic material originating from a person's
body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood,
saliva and other body fluids, tissues, hairs and
bones.
Limitations against the use of real evidence
may be classified into:
1. Inherent limitations: When the object is
relevant to the fact in issue, it may be exhibited DNA (Deoxyribonucleic Acid)
to, examined or viewed by the court. Thus, it
excludes the following: The chain of molecules found in every nucleated
a. Irrelevant evidence; and cell of the body. The totality of an individual’s DNA
b. Illegally obtained evidence. is unique for the individual, except identical twins.
2. Non–Inherent Limitations: Relevant
evidence may be excluded on the ground that
although relevant and authentic, its probative DNA Evidence
value is exceeded by its prejudicial effect such as
the following: Constitutes the totality of the DNA profiles, results
a. Indecency and impropriety; and other genetic information directly generated
b. Undue prejudice; from DNA testing of biological samples.
c. Offensiveness to sensibilities;

DNA Testing Grant of DNA testing application shall not be

construed as an automatic admission into evidence
Verified and credible scientific method which of any component of the DNA evidence that may be
include the extraction of DNA from biological obtained as a result thereof.
samples, the generation of DNA profiles and the
comparison of the information obtained from the
DNA testing of biological samples for the purpose
The DNA result is admissible in evidence. It is not a
of determining, with reasonable certainty, whether
violation of the accused’s constitutional right
or not the DNA obtained from two or more distinct
biological samples originates from the same person against self-incrimination or his right of privacy and
personal integrity.
(Direct Identification) or if the biological samples
originate from related persons (Kinship Analysis).
The right against self-incrimination is applicable

Application for DNA testing order: The only to testimonial evidence.
appropriate court may, at any time, either motu
proprio or on application of a person having a legal
interest in the litigation, orders a DNA testing upon Extracting a blood sample and cutting a strand from
a showing that: the hair of the accused are purely mechanical acts
that do not involve his discretion nor require his
1. A biological sample exists that has intelligence (Herrera v. Alba represented by his
relevance to the case, mother Armi A. Alba, G.R. No. 148220, June 15,
2. The biological sample: 2005).
a. Was not previously subjected to the DNA
testing requested, or
b. If it was subjected to DNA testing, the
results may require confirmation for good Possible results of DNA testing
reasons.
1. The samples are similar and could have
c.The DNA testing uses a scientifically valid
originated from the same source (Rule of
technique,
Inclusion). In such case, the analyst proceeds to
d. The DNA testing has the scientific potential
determine the statistical significance of the
to produce new information that is relevant to
similarity.
the proper resolution of the case, and
2. The samples are different hence it must
e. The existence of other factors, if any, which
have originated from different sources (Rule of
the court may consider as potentially affecting
Exclusion). This conclusion is absolute and
the accuracy and integrity of the DNA testing.
requires no further analysis.
3. The test is inconclusive due to degradation,
Order granting the DNA testing shall be contamination, failure of some aspect of protocol
immediately executory and shall not be or some other reasons. Analysis might be
appealable. repeated to obtain a more conclusive result
(People v. Vallejo, G.R. No. 144656, May 9,
2002).
Petition for certiorari initiated therefrom shall not, in

any way, stay the implementation thereof, unless a DNA testing results
higher court issues an injunctive order.

1. DNA results that exclude the putative parent from as provided in Sections 6 and 10 of this Rule (post-
paternity shall be conclusive proof of non- conviction DNA testing).
paternity.
2. If the value of the Probability of Paternity is less
than 99.9%, the results of the DNA testing shall
Note: DNA evidence can be an object,
be considered as corroborative evidence.
3. If equivalent to 99.9% or higher there shall be a documentary or testimonial evidence depending on
disputable presumption of paternity. what is presented in court. It is not exclusively
identifiable.
Post-conviction DNA testing: Post-conviction

SECTION 2. DOCUMENTARY EVIDENCE
DNA testing may be available, without need of
prior court order, to the prosecution or any person
Documentary evidence
convicted by final and executory judgment provided Consists of writings or any material containing
that: letters, words, numbers, figure, symbols or other
1. A biological sample exists; modes of written expressions offered as proof of
2. Such sample is relevant to the case; and their contents. (W-LWN-FOS)
3. The testing would probably result in the
reversal or modification of the judgment of Note: A document may constitute as object (real)
conviction. and as documentary evidence depending on the
purpose for which the document is tendered:
Remedy if the results are favorable to the If it is produced without regard to the message
convict: which it contains, it is treated as real, not
documentary evidence. In such case, the Best
1. The convict or the prosecution may file a Evidence rule does not apply.
Petition for a Writ of Habeas Corpus in the
court of origin. If a document is offered to prove what is written on
2. If the court finds that the petition is it, its contents, then the document will be treated as
meritorious, if shall reverse or modify the documentary evidence. Accordingly, the Best
judgment of conviction and order the release of Evidence Rule may be invoked.
the convict, unless continued detention is justified
for a lawful cause. A private document may be presented as
3. A similar petition may be filed either in the documentary evidence if the purpose is to prove its
Court of Appeals or the Supreme Court, or with contents.
any member of said courts, which may conduct a
hearing thereon or remand the petition to the SECTION 3. ORIGINAL DOCUMENT MUST BE
court of origin and issue the appropriate orders. PRODUCED; EXCEPTIONS
Best Evidence Rule

Note: DNA profiles and all results or other
The term “best” has nothing to do with the degree
information obtained from DNA testing shall be of its probative value in relation to other types of
confidential (may only be released upon order of evidentiary rules. It is not intended to mean the
the court). “most superior” evidence. More accurately, it is the
“original document rule” or the “primary
evidence rule.”
Applicability to pending cases: shall apply to
cases pending at the time of its effectivity except This rule applies to documentary evidence only, or
a document presented as proof of its contents. It
does not apply where there is no bona fide dispute

on the contents of documents and no useful be made accessible to the adverse party so that
purpose would be served by its production. the correctness of the summary may be tested on
cross-examination;
Note: The Best Evidence appears to be a
misnomer since it permits introduction of secondary 4. When the original is a public record in the
evidence if non-production of the original is covered custody of a public officer or is recorded in a
by the exceptions to the rule. public office (See Sec. 7).
General Rule: When the subject of inquiry is the Reason: Irremovability of the public record
contents of a document, no evidence shall be
admissible other than the original document Secondary Evidence may consist of the certified
itself. true copy of the document and official publication
thereof (Herrera, p.203).
Exceptions: Those under Rule 130, Sec. 3:
1. When the original has been lost or The non-production of the original document unless
destroyed, or cannot be produced in court, justified under the exceptions in Sec.3 Rule 130,
without bad faith on the part of the offeror (See gives rise to the presumption of suppression of
Sec. 5); evidence (Sec. 3 [e], Rule 131).
2. When the original is in the custody or under Note: In addition to the Best Evidence Rule, if the
the control of the party against whom the document contains a material alteration, the offeror
evidence is offered, and the latter fails to produce must account for the alteration (Sec. 31, Rule 132)
it after reasonable notice (See Sec. 6); and if a portion of the document is introduced by a
party, the adverse party can inquire on, or
Even in criminal cases, there must still be a introduce, the remaining portions of the document
request for production of document even if it be in (Theory of Indivisibility of the Evidence – Sec.
the possession of the accused and if he refuses 17, Rule 132).
to produce it invoking his constitutional right
against self-incrimination, then the secondary Purposes of the Best Evidence Rule:
evidence may be introduced (People of the 1. To prevent fraud – If a party is in
Philippines v. Tan Bomping, G.R. No.L-24187, possession of such evidence and withholds it,
March 15, 1926). and seeks to substitute inferior evidence in its
place, the presumption naturally arises that the
3. When the original consists of numerous better evidence is withheld for fraudulent
accounts or other documents which cannot be purposes which its production would expose and
examined in court without great loss of time and defeat.
the fact sought to be established from them is 2. To exclude uncertainties in the contents
only the general result of the whole. of a document – The best evidence rule accepts
the document itself as the best evidence of its
Requisites: contents, because it is certain; and rejects a copy
a. The voluminous character of the records thereof, because of the uncertainty of its contents
must be established and caused by the hazards of faulty duplication, or an
b. Such records must be made accessible to oral description thereof, and frailties of human
the adverse party so that their correctness may recollection.
be tested on cross- examination (Regalado,
2008 ed., p.728). In a criminal case of falsification of a document, it is
indispensable that the judge have before him the
Secondary Evidence may consist of the summary document alleged to have been falsified in order
of the voluminous documents or records (Herrera, that he may find whether or not the crime was
p.203). The voluminous records must, however, actually committed (United States v. Gregorio and

Balistoy, G.R. No. 5791, December 17, 1910). This 3. The Best Evidence Rule has no application
same rule applies to violation of B.P. Blg. 22. to prove a fact which has an existence
independently of any writing – the rule excludes
With respect to telegrams and cables, on the testimony designed to establish the terms of a
question as to whether the dispatch sent or the document but does not exclude testimony which
dispatch received is the best evidence of the concerns the document without aiming to
message, the better rule is that it depends on the establish its terms.
issue to be proved: 4. The Best Evidence Rule refers merely to
1. If the issue is the contents of the telegram as proof of what are the contents of a writing and not
received by the addressee, then the original as proof of the truth of the facts asserted therein.
dispatch received is the best evidence; Example: A narration of events in a letter, which
2. If the issue is to the telegram sent by the sender, recitals are often hearsay--- the letter is not
the original is the message delivered for admissible to prove the truth of its recitals unless
transmission; and it qualifies as an exception to the hearsay rule
3. If the issue is the inaccuracy of transmission, both (Herrera, pp. 171-175).
telegrams as sent and received are originals.
In libel cases: SECTION 4. ORIGINAL OF DOCUMENT

1. If the issue is with respect to the contents of the 1. One the contents of which are the subject of
articles sent by the accused for publication, the inquiry;
manuscript is the best evidence; and 2. When a document is in two or more copies
2. If the issue is with respect to what was actually executed at or about the same time with identical
published, a copy of the newspaper publication is contents, all such copies are equally regarded as
the best evidence (Provincial Fiscal of Pampanga originals (duplicate originals);
v. Reyes, etc., et al.). 3. When an entry is repeated in the regular
course of business, one being copied from
The Best Evidence Rule does not apply in the another at or near the time of the transaction, all
following cases: the entries are equally regarded as originals.
1. When the purpose is to show the existence,
execution or delivery without reference to its A copy of the original document may not be used
terms; without accounting for the other original copies. It
2. To make testimony coherent and intelligible ; must appear that all of them have been lost or
3. To admissions as to contents of writing and destroyed or cannot be produced before secondary
where subject of preliminary cross- examination, evidence can be given by anyone.
to lay the basis for confrontation;
4. Where there is no bona fide dispute on the The Rule on Duplicate Original
contents of documents and no useful purpose When a document is in two or more copies
would be served by its production. executed at or about the same time with identical
contents, or is a counterpart produced by the same
Limitations upon best evidence rule: impression as the original, or from the same matrix,
1. Proof of collateral facts not within the rule – or by mechanical or electronic re-recording, or by
testimony as to fact of execution or the existence chemical reproduction or by other equivalent
of writings or references to written instruments as techniques which accurately reproduces the
mere inducements are not within the rule original, such copies or duplicates shall be
2. The rule requiring production of the original regarded as the equivalent of the original.
instrument itself does not apply to the proof of
facts evidenced/recorded by the writing rather Notwithstanding the foregoing, copies or duplicates
than to the language or terms of the writing (Ex: shall not be admissible to the same extent as the
fact of ownership of land or chattels). original if:

1. A genuine question is raised as to the d. Who was present and saw it executed and
authenticity of the original; or delivered;
2. In the circumstances it would be unjust or e. Who after its execution and delivery, saw it
inequitable to admit a copy in lieu of the original. and recognized the signatures (Michael & Co. v.
Enriquez, 33 Phil. 871)
Best Evidence Rule as applied to Electronic The loss/destruction of a document may be

Documents proven by:
a. Any person who knew the fact of loss;
Original of an electronic document: An electronic b. Anyone who has made a sufficient
document shall be regarded as the equivalent of an examination in the place/s where the document or
original document under the Best Evidence Rule if papers of similar character are usually kept by the
it is: persons in whose custody the document lost was
1. A printout or output readable by sight or and has been unable to find it;
other means; c.Anyone who has made investigation which is
2. Shown to reflect the data accurately (Rules sufficient to satisfy the court that the instrument is
on Electronic Evidence, A.M. No. 01-7-01-SC, indeed lost (Michael & Co. v. Enriquez, supra).
Rule 4, Sec. 1).
The loss or destruction of the document need not
SECTION 5. WHEN ORIGINAL DOCUMENT IS be proved beyond the possibility of mistake; it is
UNAVAILABLE enough if the testimony satisfies the court of the
When the original has been lost or destroyed, or fact with reasonable certainty.
cannot be produced in court without bad faith on
the part of the offeror secondary proof of its All duplicates or counterparts of a lost or destroyed
contents may be allowed. document must be accounted for before using
copies thereof. Reason: Since all the duplicates or
Secondary Evidence: It is relevant but is excluded multiplicates are parts of the writing to be proved
by the Best Evidence Rule because such evidence (De Vera, et.al. v. Aguilar et.al, G.R. No. 83377,
does not give the greatest certainty as to the February 9, 1993).
existence or non-existence of the fact in issue.
The contents of a document may be proven by any
Requisites for the presentation of secondary person who: (SRH-PC)
evidence: (EEL – BAC) a. Signed the document;
a. Proof of existence of original; b. Read it;
b. Proof of due execution of original; c.Heard it read knowing or it being proved from
c.Cause of unavailability or loss of original; other sources that the document so read was the
d. Absence of bad faith on the part of the one in question;
offeror; d. Was present when the contents of the
e. When more than one copy of the document document were talked over between the parties
exists, the offeror must prove that all the originals thereto to such an extent as to give him
have been lost or destroyed; reasonably full information as to its contents;
f. Proof of contents through secondary evidence. e. To whom the parties to the instrument have
confessed or stated the contents thereof.
The execution of a document may be proven by
any person/s: (E-CAPS) Degrees of Secondary Evidence: We follow the
a. Who executed the document; American Rule – the secondary evidence which is
b. To whom the parties to the instrument had admissible is the best secondary evidence
previously confessed the execution thereof; obtainable. If it appears that there is in existence
c.Before whom its execution was acknowledged; secondary evidence of a more satisfactory kind
than the secondary evidence which a party offers,

he will be required to produce the better evidence if The hierarchy of preferred secondary evidence
he can do so. This is opposed to the English Rule must be strictly followed.
wherein if the original of the writing has been lost,
the copy and oral testimonies relating to such Definite Evidentiary Rule
writing are both secondary evidence and have The order does not apply where the law specifically
equal competence (Herrera, pp. 191-192). provides for the class or quantum of secondary
evidence to establish the contents of the document
SECTION 6. WHEN ORIGINAL DOCUMENT IS IN (e.g. Secondary evidence of a lost notarial will
ADVERSE PARTY’S CUSTODY OR CONTROL should consist of the testimony of at least two
credible witnesses who can clearly and distinctly
Requisites: establish its contents (Sec. 6, Rule 76); while the
1. Proof of existence or execution of the proof required in case the holographic will is lost
document; appears to rule out any testimonial evidence of its
2. Reasonable notice served upon the contents (Sec. 5, Rule 76)).
defendant to produce the original document;
3. If there are other copies of the original, all SECTION 7. EVIDENCE ADMISSIBLE WHEN
must be accounted for. ORIGINAL DOCUMENT IS A PUBLIC RECORD
When the original is a public record in the custody
It is not necessary to show that the original is in the of a public officer or is recorded in a public office,
actual possession of his adversary. It is enough its content may be proved by Secondary Evidence
that the circumstances are such as to indicate that which may consist of:
the writing is in his possession. a. Certified true copy issued by the public
officer in custody thereof; and
If there is failure to produce the original despite b. Official publication (Herrera, p.203).
reasonable notice, the adverse party is afterwards
forbidden to produce the document in order to When the original is outside the jurisdiction of the
contradict the other party's copy or evidence of its court, as when it is in a foreign country, secondary
contents or it may also be regarded as a judicial evidence is admissible.
admission in advance of the correctness of the first
party's evidence. It also gives rise to the Note: If the party against whom the secondary
presumption of suppression of evidence. evidence is offered does not object thereto when
the same is offered in evidence, the secondary
Even in criminal cases, there must still be a request evidence becomes primary evidence (Heirs of
for production of document even if it be in the Teodoro Dela Cruz v. Court of Appeals, 298 SCRA
possession of the accused and if he refuses to 172).
produce it invoking his constitutional right against
self-incrimination, then the secondary evidence SECTION 8. PARTY WHO CALLS FOR
may be introduced (People of the Philippines v. Tan DOCUMENT NOT BOUND TO OFFER IT
Bomping, G.R. No.L-24187, March 15, 1926). Where a document is produced, such document is
not necessarily admissible in evidence, unless the
Note: Under Section 5 and Section 6, the requisites for admissibility are present; nor is the
presentation of secondary evidence must be in the party who sought its production obliged to offer it as
following order: evidence.
a. Copy of contents of original;
b. Recital of contents in some authentic
document; and
c.Recollection of witnesses. (Sec. 5, Rule 130,
Rules of Court)

Production of Documents: for purposes of Purpose of the rule:

evidence vis-à-vis as a mode of discovery 1. To give stability to a written agreement;
Sec. 8, Rule 130 Rule 27 2. To remove the temptation and possibility of
perjury; and
Procured by mere 3. To prevent possible fraud.
notice to the adverse
Made by proper
party, which is a Requisites: (VW-DT)
motion in the trial court
condition precedent 1. There must be a valid contract;
and is permitted only
for the subsequent 2. The terms of the agreement must be
upon good cause
introduction of reduced to writing;
shown.
secondary evidence 3. The dispute is between parties and their
by the proponent. successors in interest; and/or
Contemplates a 4. There is dispute as to the terms of the
Presupposes that the situation wherein the agreement.
document to be document is either
produced is intended assumed to be Not all writings will trigger the application of the
as evidence for the favorable to the party parol evidence rule. The writing must embody an
proponent who is in possession thereof agreement.
presumed to have or that the party
knowledge of its seeking its production When no timely objection or protest is made to the
contents. is not sufficiently admission of parol evidence, and when the motion
informed of the to strike out said evidence came too late and if the
contents of the same. other party against whom such evidence was
presented cross-examined the witness who testified
in respect to the contract, said party will be
Parol Evidence Rule
understood to have waived the benefits of the law.
Parol evidence under those facts is competent and
SECTION 9. EVIDENCE ON WRITTEN
admissible (Abrenica v. Gonda, G.R. No.10100,
AGREEMENTS
August 15, 1916).
General Rule: When the terms of an agreement
have been reduced to writing, it is considered as
A contract need not be reduced into writing. It may
containing all the terms agreed upon and there can
be oral or written except if covered by the Statute of
be, between the parties and their successors in
Frauds or required by law. Only when the contract
interest, no evidence of such terms other than the
is reduced into writing that the Parol Evidence Rule
contents of the written agreement.
is applicable (Sec. 9).
Exceptions: A party may present evidence to
The Parol Evidence Rule is part of contract law. It is
modify, explain or add to the terms of the written
substantive and not procedural in character.
agreement if he puts in issue in his pleading:
(FIVE)
When the parties have reduced the agreement into
1. The failure of the written agreement to
writing, the parties are not allowed to alter, modify,
express the true intent of the parties thereto;
change, add or vary what is contained in the written
2. An intrinsic ambiguity, mistake or
agreement.
imperfection in the written agreement;
3. The validity of the written agreement;
Parol Evidence
4. The existence of other terms agreed to by
Any evidence aliunde which is intended or tends to
the parties or their successors in interest after the
vary or contradict a complete and enforceable
execution of the written agreement.
agreement embodied in a document.
Note: The term “agreement” includes wills.
Evidence Aliunde (Extrinsic Evidence)

It may refer to a testimonial, real or documentary the agreements which they had on different
evidence. subjects.
Note: No express trust concerning an immovable

or any interest therein may be proved by parol Rule on Intrinsic Ambiguity
evidence (Art. 1443, Civil Code). Intrinsic or latent ambiguity: when the writing on
its face appears clear and unambiguous but there
When Parol Evidence Rule applies are collateral matters or circumstances which make
General Rule: Parol Evidence Rule applies only to the meaning uncertain.
integrated (finalized) agreements (intended by both
parties as the final and exclusive written memorial Extrinsic or patent ambiguity: ambiguity is
of their agreement). apparent on the face of the writing itself and
requires something to be added in order to
Theory of Integration of Jural Acts ascertain the meaning of the words used.
Previous acts and contemporaneous transactions
of the parties are deemed integrated and merged in Parol evidence cannot be used to ratify or
the written instrument which they have executed. supplement a void contract
When the parties have reduced their agreement to Intermediate Ambiguity: where the ambiguity
writing, it is presumed that they have made the consists in the use of equivocal words designating
writing the only repository and memorial of the the person or subject matter, parol evidence of
truth, and whatever is not found in the writing must collateral or extrinsic matter may be introduced for
be understood to have been waived and the purpose of aiding the court in arriving at the
abandoned. meaning of the language used (This kind of
ambiguity results from the use of words susceptible
Exception: Parol Evidence Rule may also apply to of two interpretations.).
collateral oral agreements.
Intrinsic and intermediate ambiguities are curable
A contract made prior to or contemporaneous with by evidence aliunde or extraneous evidence.
another agreement and if oral and not inconsistent
with the written contract is admissible within the A patent ambiguity cannot be cured by evidence
exception to parol evidence rule. aliunde.
Requirements: Principle of “falsa demonstratio non nocet cum

1. It is not a part of the integrated written de corpore constat”
agreement in any way; “An erroneous description does not spoil the act.”
2. It is not inconsistent with the written
agreement in any way, including both the express False description does not injure or vitiate a
and implied provisions of the written agreement; document, provided that the thing or person
and intended has once been sufficiently described.
3. It is not closely connected with the principal Where there are two descriptions in a deed, the
transaction as to form part and parcel thereof. one having been superadded to the other, and one
description being complete and sufficient of itself
Note: The Parol Evidence Rule does not apply while the other which is subordinate and
when the subsequent collateral oral agreement superadded is incorrect, the incorrect description or
refers to separate and distinct subjects. feature of circumstance of the description is
rejected as surplusage, and the complete and
Ratio: The parties to a contract cannot be correct description is allowed to stand alone.
presumed to have embodied in a single writing all

It does not involve any intrinsic or extrinsic Rule on Mistake: Parol Evidence is admissible to
ambiguity. There is a correct description and prove mistake in the execution of a written
another one which turns out to be erroneous. agreement.
Ratio: It would be unjust and inequitable to allow

Rule on collateral agreements to reconvey at the enforcement of a written instrument which does
the time of execution of deed of conveyance: not reflect or disclose the real meeting of the minds
of the parties.
Parol evidence on a collateral agreement to
reconvey is allowed where it appears that the Elements of mistake: (FM-CC)
consideration was indeed not the only 1. It should be a mistake of fact and not a
consideration agreed upon by the parties, and that mistake of law;
the purchaser succeeded in obtaining from the 2. It should be mutual or common to both
vendor a deed of absolute sale under a false parties to the instrument; and
promise that he would later execute a deed 3. It should be alleged and proved by clear
authorizing the vendor to repurchase the property and convincing evidence.
within a period of time. Parol evidence is admissible
because it tends to prove fraud and the true Mistake of fact
considerations of contracts (Herrera, p. 219). A mistake not caused by the neglect of a legal duty
on the part of the person making the mistake.
Mistake of law
Parol Evidence Rule applicable to wills This mistake happens when a party, having full
knowledge of the facts, comes to an erroneous
conclusion as to their legal effect.
General Rule: No evidence on the terms of the will
and its attestation clause is admissible other than The ground that the written agreement fails to
the contents of the will. express the true intent of the parties can only be
invoked when the contract is literally ambiguous or
Exception: Under Art. 789 of the New Civil Code, obscure in its terms and that the contractual
when there is an imperfect description in the will, or intention of the parties cannot be understood from
when no person or property exactly answers the the mere reading of the instrument.
description, mistakes and omissions must be
corrected if the error appears from the contexts of Rule on imperfection: Where a writing, although
embodying an agreement, is manifestly incomplete,
the will or from extrinsic evidence, excluding the
and is not intended by the parties to exhibit the
oral declarations of the testator as to his intention;
whole agreement, but only to define some of its
and when an uncertainty arises upon the face of terms, the writing is conclusive as far as it goes.
the will, as to the application of any of its provisions, But such parts of the actual contract as are not
the testator’s intention is to be ascertained from the embraced within its scope may be established by
words of the will, taking into consideration the parol evidence (Herrera, p.235).
circumstances under which it was made, excluding
such oral declaration (Herrera, p. 223). Imperfection: includes an inaccurate statement in
the agreement or incompleteness in the writing, or
the presence of inconsistent provisions therein.
A photostatic copy of a lost or destroyed will is
Rule on conditional agreements
admissible because comparison can be made with
the standard writing of the testator (Bonilla v. 1. Conditions precedent: may be established
Aranza, G.R. No. L-58509, December 7, 1982). by parol evidence because there is no varying of

the terms of the written contract by extrinsic citing 10 McKinney, Ruling Case Law,1916 Edition,
agreement for the reason that there is no contract page 859, and Cruz v. Court of Appeals, G.R. No.
in existence; there is nothing to which to apply the 79962, December 10, 1990).
excluding rule.
2. Conditions subsequent: may not be Note: The parol evidence rule does not apply, and
established by parol evidence may not properly be invoked by either party to the
litigation against the other, where at least one party
to the suit is not a party or privy of a party to the
Parol Evidence Rule Best Evidence Rule written instrument in question and does not base a
Availability of Original Document claim or assert a right originating in the instrument
Contemplates a of the relation established thereby.
situation where the
Presupposes that the original is not available
original is available in in court and/or there is
court. a dispute as to INTERPRETATION OF DOCUMENTS (SECTION
whether said writing is 10 – SECTION 19)
the original.
What the Rule Prohibits
Prohibits the Testimonial Evidence
introduction of
substitutionary Testimonial or oral evidence is evidence elicited
Prohibits the varying evidence in lieu of the from the mouth of a witness as distinguished from
of the terms of a original document real and documentary evidence (Black’s Law
written agreement. regardless of whether Dictionary, 5th Ed., 1323). It is sometimes called
or not it varies the viva voce which literally means “living voice” or by
contents of the word of mouth. The person who gives the testimony
original. is called a “witness”.
Who may invoke the Rule?
Can be invoked only Based on jurisprudence, testimonial evidence has
when the controversy Can be invoked by the least weight, if incredible.
is between the parties any party to an action
to the written regardless of whether Rationale: Man’s memory is being relied upon.
agreement, their such party participated Moreover, both parties and their witnesses will
privies, or any party or not in the writing recall only those favorable to them and deliberately
directly affected involved. forget those which are adverse to them. (See
thereby. People vs. Pasco, G.R. No. L-68520, January 22,
Applicability 1990 for a discussion on memory of witness)
With the exception of
SECTION 20. WITNESSES; THEIR
wills, applies only to Applies to all kinds of
QUALIFICATIONS
documents which are writing.
General Rule: All persons who can perceive, and
contractual in nature.
perceiving, can make known their perception to
Note: The Parol Evidence Rule is not applicable to others, may be witnesses.
a mere receipt, unless that receipt can qualify as a
Religious or political belief, interest in the outcome
valid and enforceable contract. Hence, as to a
of the case, or conviction of a crime shall NOT be a
receipt being given for the payment of rent due on
ground for disqualification.
the lease, parol evidence is admissible to show that
the payment was made by note (Peralta, Jr.,
Perspectives of Evidence, 2005 Edition, page 142,

Exceptions: Unless otherwise provided by law or 1. The fact that a person has been recently
the Rules, such as in the following: found of unsound mind by a court of competent
1. Those disqualified under Secs. 21 – 24, jurisdiction;
Rule 130. 2. That one is an inmate of an asylum for the
2. Art. 821 of the New Civil Code disqualifies insane.
those who have been convicted of falsification of
a document, perjury or false testimony from being The qualifications and disqualifications of witnesses
witnesses to a will. are determined as of the time they are produced for
3. Section 17, Rule 119 of the Rules of Court examination in court or at the taking of their
requires that the accused sought to be depositions.
discharged to be state witness has not at any
time been convicted of any offense involving Test of competency: Whether the individual has
moral turpitude. The same requirement is sufficient understanding to appreciate the nature
provided for a state witness under R.A. No. 6981 and obligation of an oath and sufficient capacity to
or Witness Protection, Security and Benefit Act. observe and describe the facts in regard to which
he is called to testify.
Presumption in law: All witnesses are presumed
to be qualified. A witness is presumed to be competent. The
objection to the competency may be raised at any
The burden to prove otherwise lies on the litigant time during the examination or cross-examination;
who desires to assail the witness’s qualification. but it should be made as soon as the facts tending
to show incompetency are discovered.
Note: The rule on qualification of witnesses is part
of the substantive law. Voir dire examination
A preliminary examination conducted by the trial
May an attorney be a witness of his own client? judge where the witness is duly sworn to answer as
Yes. When a lawyer is a witness for his client, to his competency (Competency Examination).
except as to merely formal matters, he should
leave the trial of the case to other counsel Citizen’s Testimonial Duty
(Francisco, p.120). General Rule: Every competent person under the
process of subpoena by the duly constituted courts
Rule on competency of witness of the country may be compelled to appear and
General Rule: A person who takes the witness testify.
stand is presumed to possess the qualifications of a
witness (Presumption of Competency). Exception: The following are not bound even if
subpoenaed: (CJ MAC-WP)
Qualifications of witnesses: A prospective 1. Chief Executive
witness must show that he has the following 2. Judges of Superior Courts
abilities: (OR3) 3. Members of Congress during sessions
1. To observe – the testimonial quality of 4. Ambassadors
perception; 5. Consuls and other diplomatic officials when
2. To remember – the testimonial quality of there is a treaty holding them exempt (Herrera,
memory; p.277).
3. To relate – the testimonial quality of 6. Witness who resides more than 100
narration; and kilometers away from his residence to the place
4. To recognize a duty to tell the truth – the where he is to testify by the ordinary course of
testimonial quality of sincerity. travel, or
7. A detention prisoner if no permission of the
Exception: Prima facie evidence of incompetency court in which his case is pending was obtained
in the following: (Rule 21, Sec.10, Rules of Court).

Two kinds of incompetency to testify The following cannot be witnesses:

1. Absolute Disqualification: A person is 1. Those whose mental condition, at the time
forbidden to testify on any matter. This includes: of their production for examination, is such that
a. Disqualification by reason of mental they are incapable of intelligently making known
incapacity or immaturity (Sec. 21 ); and their perception to others;
b. Disqualification by reason of marriage (Sec. 2. Children whose mental maturity is such as
22). to render them incapable of perceiving the facts
respecting which they are examined and of
2. Relative Disqualification: A person is relating them truthfully (See Rule on Examination
forbidden to testify only on certain matters of a Child Witness).
specified under Sections 23 and 24 of Rule 130
due to interest or relationship or to privileges of Children’s maturity matters, not their age. There
other parties. is no minimum age requirement for children to be
a. Disqualification by reason of death or qualified as witnesses.
insanity of adverse party (Dead Man’s Statute,
Sec. 23); Mental unsoundness of the witness at the time the
b. Disqualification on the ground of privileged fact to be testified to occurred, affects only his
communication (Sec. 24); credibility. As long as the witness can convey ideas
c.Disqualification on the ground of parental and by words or signs and give sufficiently intelligent
filial privilege (Sec. 25). answers to questions propounded, she is a
competent witness even if she is feeble-minded
Other instances of disqualification (People of the Philippines v. De Jesus, L-39087,
a. Any person who is: 1) not domiciled in the April 27, 1984).
Philippines or 2) convicted of falsification of
documents, perjury or false testimony is Feeble-minded persons are still qualified as long as
disqualified from being a witness to a will (Art. they can convey ideas by words or signs and give
821, New Civil Code of the Philippines). sufficiently intelligent answers (People of the
b. An accused sought to be discharged to be a Philippines v. Palma, G.R. No. L-69152, September
state witness has not at any time been 23, 1986).
convicted of any offense involving moral
turpitude (Sec. 17, Rule 119; R.A. No. 6981 or To determine whether or not a minor meets the
Witness Protection, Security and Benefit Act). standards, he or she must be subjected to
preliminary questions to be conducted either by
Competency of the judge or counsel. Innocent questions or those
Credibility of Witness
Witness not related to the issue will be asked (Sec. 6 [c-e],
Refers to the Rule on Examination of Child Witness).
Has reference to the believability of the
qualifications of a witness and has Presumption of sanity: The law presumes that
witness as his nothing to do with the every person is of sound mind, in the absence of
capacity to perceive law or the rules. proof to the contrary. But mental unsoundness
and to communicate alone does not per se disqualify a witness, it must
his perception. Refers to the weight of be of such degree that the person’s ability to
trustworthiness or perceive, recall, and testify are so impaired that the
Includes the absence reliability of the witness’s testimony is worthless (Herrera, p.285).
of any disqualification. witness’s testimony.
Exception: If the witness is a lawful inmate of an
asylum for the insane (Torres v. Lopez, 48 Phil.
72).
SECTION 21. DISQUALIFICATION BY REASON
OF MENTAL INCAPACITY OR IMMATURITY Rules on time of insanity

1. At the time of trial - incompetent Note: It shall apply in all criminal and non-criminal
2. At the time of the transaction - competent proceedings involving child witnesses.
but may affect the witness’ credibility
3. At some other period - no effect Presumption of competency: Every child is
presumed qualified to be a witness. However, the
Deaf-mutes are competent witnesses when they: court shall conduct a competency examination of a
1. Can understand and appreciate the sanctity child, motu proprio or on motion of a party, when it
of an oath; finds that substantial doubt exists regarding the
2. Can comprehend facts they are going to ability of the child to perceive, remember,
testify to; and communicate, distinguish truth from falsehood, or
3. Can communicate their ideas through a appreciate the duty to tell the truth in court (Sec. 6).
qualified interpreter (People of the Philippines v.
Hayag, G.R. No. L-38635, November 17, 1980). Examination of a child as to his competence shall
be conducted only by the judge. Counsel for the
Requisites for a child’s competency; parties, however, can submit questions to the judge
Determination left to court discretion that he may, in his discretion, ask the child (Sec. 6
1. Capacity of observation; [d]).
2. Capacity of recollection;
3. Capacity of communication Who must prove the need for competency
examinations? A party seeking competency
It is not the age but the degree of intelligence of a examination must present proof of necessity of
child which determines the question of a child’s competency examination. The age of the child by
competency as a witness. If the witness is itself is not a sufficient basis (Sec. 6 [a]).
sufficiently mature to receive correct impressions
by his senses, to recollect and narrate intelligently, Burden of proof: To rebut the presumption of
and to appreciate the moral duty to tell the truth, he competence enjoyed by a child, the burden of proof
is competent (People of the Philippines v. lies on the party challenging his competence (Sec.
Avendaño, G.R. No. 137407, January 28, 2003). 6 [b]).
Is the competency examination a final

determination as to the child’s competence?
RULE ON E XAM INAT ION OF C HILD No. The court has the duty of continuously
WIT NESS assessing the competence of the child throughout
his testimony (Sec. 6 [f]).
(A.M. No. 00-4-07-SC, December 15, 2000) Definitions
“Child Witness”
Applicability of the Rule Any person who at the time of giving testimony is:
1. Below eighteen (18) years; and
General Rule: The rule shall govern the 2. Over eighteen (18) years but is found by the
examination of child witnesses who are: (VAW) court as unable to fully take care of himself or
1. Victims; protect himself from abuse, neglect, cruelty,
2. Accused; and exploitation, or discrimination because of a
3. Witnesses to a crime. physical or mental disability or condition in child
abuse cases(Sec. 4 [a]).
Exception: Where the Rule provides otherwise
(Sec. 1). “Facilitator”

A person appointed by the court to pose questions however, move the court to allow him to testify in
to a child (Sec. 4 [c]). The facilitator may be a: (PP- the manner provided in this Rule.
SCT-RPR)
1. Child psychologist;
2. Psychiatrist;
The court may: (NLI-FAP-SPN)
3. Social worker;
4. Guidance counselor; 1. Allow the child witness to testify in a
5. Teacher; narrative form;
6. Religious leader; 2. Allow leading questions in all stages of the
7. Parent; or examination of a child if the same will further the
8. Relative. interests of justice;
3. Appoint an interpreter, motu proprio or upon
“Support Person” motion, when a child does not understand English
A person chosen by the child to accompany him to or Filipino language or is unable to communicate
testify at or attend a judicial proceeding or in said languages;
deposition to provide emotional support for him 4. Appoint a facilitator, motu proprio or upon
(Sec. 4 [f]). motion, if it determines that the child is unable to
understand or respond to the questions asked;
Best interests of the child 5. Allow a child testifying at a judicial
The totality of the circumstances and conditions as proceeding or making a deposition to be
are most congenial to the survival, protection and accompanied by one or two persons of his own
feelings of security of the child and most choosing to provide him emotional support;
encouraging to his physical, psychological and 6. allow the child reasonable periods of relief
emotional development. It also means the least while undergoing direct, cross, re-direct and re-
detrimental available alternative for safeguarding cross examinations as often as necessary
the growth and development of the child. depending on his developmental level;
7. Allow the child to have an item of his own
Developmental level choosing such as blanket, toy or doll (emotional
Refers to the specific growth phase in which most security item) while testifying;
individuals are expected to behave and function in 8. Prohibit a counsel from approaching a child
relation to the advancement of their physical, socio- if it appears that the child is fearful of or
emotional, cognitive, and moral abilities. intimidated by the counsel; and
9. Order that persons attending the trial shall
The public may be excluded from the courtroom not enter or leave the courtroom during the
when they do not have a direct interest in the case. testimony of the child.
The court may also, on motion of the accused,
exclude the public from trial, except court Corroboration shall not be required of a testimony
personnel and the counsel of the parties. of a child. His testimony, if credible by itself, shall
be sufficient to support a finding of fact, conclusion,
Examination of a child witness: As a general or judgment subject to the standard of proof
rule, the examination of a child witness presented required in criminal and non-criminal cases.
in a hearing or any proceeding shall be done in
open court. Unless the witness is incapacitated to Live-Link TV Testimony of a Child Witness
speak, or the question calls for a different mode of
answer, the answers of the witness shall be given
orally.
When applicable: In criminal cases where a child
is a victim or witness, the prosecutor, counsel or
The party who presents a child witness or the the guardian ad litem may apply for an order that
guardian ad litem of such child witness may, the testimony of the child be taken in a room

outside the courtroom and be televised to the When applicable: If the court finds that the child
courtroom by live-link television. will not 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.
Period of application: 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 Who presides: The judge shall preside at the
need for such an order was not reasonably videotaped deposition of the child.
foreseeable.
Accused’s rights not violated: It must be noted

When application may be approved: The court that the right of the accused during trial, especially
may order that the testimony of the child be taken the right to counsel and to confront and cross-
by live-link television if there is a substantial examine the child, shall not be violated during the
likelihood that the child would suffer trauma from deposition.
testifying in the presence of the accused, his
counsel or the prosecutor as the case may be.
When is the accused excluded from the room?
If the order of the court is based on evidence that
Note: The trauma must be of a kind which would the child is unable to testify in the physical
impair the completeness or truthfulness of the presence of the accused, the court may direct the
testimony of the child. The child shall, therefore, latter to be excluded from the room. In such case,
testify in a separate room. the court shall order that the testimony of the child
be taken by live-link television.
Preservation of child’s testimony: The testimony

of the child shall be preserved on videotape, digital Videotaped deposition preserved: The
disc, or other similar devices which shall be made videotaped deposition shall be preserved and
part of the court record and shall be subject to a stenographically recorded and be subject to a
protective order. protective order.
Videotaped Deposition of a Child Witness Videotaped deposition may be admitted in

evidence in lieu of the child’s testimony if at the
time of trial, the court finds that the child is:
Who may apply: The prosecutor, counsel, or 1. Unable to testify (substantial likelihood to
guardian ad litem may apply for an order that a suffer trauma), or
deposition be taken of the testimony of the child 2. Is unavailable to testify for any reason under
and that it be recorded and preserved on Sec. 4(c), Rule 23 of the Rules of Civil Procedure.
videotape. Before the guardian ad litem applies for
this order, he shall consult with the prosecutor or
counsel. Note: The court shall issue an order stating the
reasons therefor.

Hearsay Exception in Child Abuse Cases (See f. Within 30 days from receipt, all copies and any
Other Exceptions to Hearsay Rule) 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
g. The protective order shall remain in full
Sexual Abuse Shield Rule
force and effect until further order of the court.
General Rule: The following evidence is not
2. As additional protective orders, the court
admissible in any criminal proceeding involving
may, motu proprio or on motion of any party, the
alleged child sexual abuse:
child, his parents, legal guardian, or the guardian
1. Evidence offered to prove that the alleged
ad litem, issue additional orders to protect the
victim engaged in other sexual behavior; and
privacy of the child.
2. Evidence offered to prove the sexual
predisposition of the alleged victim.
Child Witness Ordinary Witness
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove that Only the judge is
Opposing counsels are
a person other than the accused was the source of allowed to ask
allowed to ask
the semen, injury, or other physical evidence shall questions to a child
questions during
be admissible. witness during
preliminary
preliminary
examination.
It is likewise settled jurisprudence that testimonies examination.
of child-victims are given full weight and credit. Leading questions are Leading questions are
When a woman or a child says that she has been allowed. generally not allowed.
raped, she says in effect all that is necessary to Testimony in a Testimony in a
show that rape was indeed committed (People of narrative form is narrative form is not
the Philippines v. Pulanco, G.R. No. 141186, allowed. allowed.
November 27, 2003). The child witness is An ordinary witness is
assisted by a not assisted by a
facilitator. facilitator.
Protective orders (V-DAC-NotGLS2-R2)
1. Any videotape or audiotape of a child that is

part of the court record shall be under a SECTION 22: DISQUALIFICATION BY REASON
protective order that provides as follows: OF MARRIAGE (SPOUSAL IMMUNITY)
a. Tapes may be viewed only by parties, their General Rule: During their marriage, neither the
counsel, their expert witness, and the guardian husband nor the wife may testify for or against the
ad litem; other without the consent of the affected spouse.
b. No tape, or any portion thereof, shall be
divulged by any person mentioned to any other Purpose: To obviate perjury and to prevent
person, except as necessary for the trial; domestic disunity and unhappiness.
c.No person shall be granted access to the tape
unless he signs a written affirmation that in case Who may object: Only the spouse-party and not
of violation of the protective order, he will be the other spouse who is offered as a witness.
subject to the contempt power of the court;
d. Each of the tape cassettes and transcripts Requisites:
thereof made available shall bear a cautionary 1. That the spouse for or against whom the
notice; testimony is offered is a party to the case;
e. No tape shall be given, loaned, sold, or 2. That the spouses are legally married (valid
shown to any person except as ordered by the until annulled);
court. 3. Testimony is offered during the existence of
marriage; and

4. The case is not one of the exceptions the witness. between the spouses.
provided in the rule. (Herrera, p.302) Objection Raised
The objection would be
Exceptions: The rule on disqualification does not raised on the ground of
apply in the following: marriage. The married The married person is
1. Where the testimony was made outside the witness would not be on the stand but the
marriage; allowed to take the objection of privilege
2. In a civil case by one spouse against the stand at all because of is raised when
other; the disqualification. confidential marital
3. In a criminal case for a crime committed by Even if the testimony communication is
one spouse against the other or the latter’s direct is, for or against the inquired into.
descendants or ascendants; objecting spouse, the
The disqualification does not apply where an spouse-witness cannot
offense directly attacks or directly and vitally testify.
impairs the conjugal relations.
It does not also apply in the case of estranged Nature of the prohibition: It is an absolute
spouses, where the marital and domestic prohibition against the spouse's testifying to any
relations are so strained that there is no more fact affecting the husband or the wife however the
harmony to be preserved nor peace and knowledge of these facts may have been acquired.
tranquility which may be disturbed (Alvarez v.
Ramirez, 473 SCRA 72 [October 14, 2005] citing However, res gestae declarations of husband and
People v. Castaneda, 271 SCRA 504). wife are admissible for or against each other, even
4. Where the spouse-party gives his/her though each is incompetent to testify (58 Am. Jur.
consent; 139).
5. Where the spouse-party fails to raise the
disqualification seasonably. Marrying the witness: An accused can effectively
“seal the lips” of a witness by marrying the
Ratio: Identity of interest disappears and the witness. As long as a valid marriage is in existence
consequent danger of perjury based on that identity at the time of the trial, the witness-spouse cannot
is non-existent. be compelled to testify even where the crime
charged is against the witness’ person, and even
Disqualification by Disqualification by though the marriage was entered into for the
Reason of Marriage Reason of Marital express purpose of suppressing the testimony.
(Sec. 22) Privilege (Sec. 24
[A]) Duration of the privilege: The privilege lasts only
during marriage. It terminates upon divorce or
When invoked annulment or death, in which event, the surviving
Can be claimed spouse may testify on any matter not learned in
Can be invoked only if
whether or not the confidence.
one of the spouses is a
other spouse is a
party to the action.
party to the action.
Period for Prohibition
Applies only if the The testimony is admissible where no objection is
Can be claimed even interposed by the spouse who has the right to
marriage is existing at
after the marriage is
the time the testimony invoke the prohibition. The benefit of the rule may
dissolved.
is offered. be waived impliedly or expressly.
Scope of Prohibition
Constitutes a total Applies only to
prohibition for or confidential SECTION 23. DISQUALIFICATION BY REASON
against the spouse of communications OF DEATH OR INSANITY OF ADVERSE PARTY

Dead man‘s statute or survivorship Facts favorable to the deceased are not
disqualification rule (Sec. 23) prohibited: As the statutes are designed to protect
the interest of a deceased or insane person, they
Purpose of the Rule: It is designed to close the do not exclude testimonies which are favorable to
lips of the party plaintiff when death or the representative of such person.
incompetence has permanently closed the lips of
the party defendant in order to remove from the Note: For the rule to apply, the action must be one
claiming party the temptation to give false which is a claim or demand against the estate of a
testimony and the possibility of fictitious claims deceased person and that the action is against the
against the deceased or incompetent. executor or administrator or representative of such
deceased person.
Requisites: (PECT)
1. The witness is a party or assignor of a party When dead man’s statute cannot be invoked:
to a case or persons in whose behalf a case is (NP2-CFW-NonO-CWA)
prosecuted; 1. Testimony of mere witnesses who are
2. The action is against an executor or neither party plaintiffs, nor their assignors, nor
administrator or other representative of a persons in whose behalf a case is prosecuted,
deceased person or a person of unsound mind; nor to a nominal party, nor to officers and
3. The subject-matter of the action is a claim stockholders of a plaintiff corporation;
or demand against the estate of such deceased 2. If the plaintiff is the executor or
person or against person of unsound mind; and administrator or other representative of a
4. The subject matter of the testimony refers to deceased person, or the person of unsound mind;
any matter of fact which occurred before the 3. In an action against a partnership;
death of such deceased person or before such 4. If the person or persons mentioned under
person became of unsound mind. the rule file a counterclaim;
5. When the testimony refers to fraudulent
Incompetency to testify applies whether the transactions committed by the persons mentioned
deceased died before or after the in the rule, provided that fraud has been clearly
commencement of the action against him if at the established by other evidence;
time the testimony was given he was already 6. When there is waiver;
dead and cannot disprove it. 7. When the testimony of a plaintiff refers to
the non-occurrence of a fact, because in that
To whom does the rule apply? The Rule applies case, the plaintiff does not testify on the
to a witness of the plaintiff who attempts to testify occurrence of a fact but on its non-occurrence;
on matters of facts occurring before the death of 8. In cadastral cases since there is neither
such deceased person or before such person plaintiff nor defendant, nor in land registration
became of unsound mind (Lilibeth Sunga-Chan v. cases instituted by the decedent’s
Lamberto T. Chua, G.R. No. 143340, August 15, representatives, as the oppositors are considered
2001). defendants and may, therefore, testify against
petitioner;
Assignor 9. Testimony on the possession by witness of
Pertains to the assignor of a cause of action which a written instrument made by the deceased, as
has already arisen and not the assignor of a right such fact exists even after the decedent’s
before any cause of action accrued. demise;
10. Where the deceased contracted with the
Matters Prohibited: those occurring in the plaintiff through an agent and said agent is alive
presence and within the hearing of the decedent to and can testify, but the testimony of the plaintiff
which he might testify of his personal knowledge if should be limited to acts performed by the agent.
he were alive.

Privileged communication applies to both civil and

criminal cases except the doctor-patient privilege,
which is applicable only in civil cases.
Marital
Dead Man’s Statute Disqualification Unless waived, the disqualification under Sec. 24
Rule remains even after the various relationships therein
Only a partial have ceased to exist.
disqualification as the
witness is not Note: The privilege cannot be invoked where
It is a complete confidential communications or information are
completely disqualified
and absolute made in contemplation of a crime or in furtherance
but is only prohibited
disqualification. or perpetuation of fraud.
from testifying on the
matters therein
specified. Privileged communications found in the rules of
Applies to a civil or court
criminal case, subject 1. Communication between husband and wife;
only to the two 2. Communication between attorney and
exceptions provided client;
Applies only to a civil therein: (1) except in 3. Communication between physician and
case or special a civil case by one patient;
proceeding over the against the other; or 4. Communication between a priest and
estate of a deceased (2) in a criminal case penitent;
or insane person. for a crime committed 5. Public officers and public interest (Sec. 24).
by one against the
other or the latter’s Common element: The core element in the
direct descendants or privileged communications is the confidence
ascendants. reposed by the person giving such information to
another who receives the same.
SECTION 24. DISQUALIFICATION BY REASON
OF PRIVILEGED COMMUNICATION Enumeration in Section 24 is not exclusive:
There are other privileged matters which are not
mentioned under Rule 130, Section 24.
Privilege
A. Privileged communication between
A rule of law that, to protect a particular relationship husband and wife (Sec. 24 [a])
or interest, either:
1. Permits a witness to refrain from giving Reason: It is assured that what you confide will
testimony he otherwise could be compelled to not be divulged in the future.
give, or
2. Permits someone, usually one of the parties, Society has a deeply-rooted interest in the
to prevent the witness from revealing certain preservation of peace of families and in the
information. maintenance of the sacred institution of marriage.
Its strongest safeguard is to preserve with
zealous care any violations of those hallowed
Who may assert privilege? confidences inherent in and inseparable from the
1. Holder of privilege; marital status (Herrera, p. 317).
2. Authorized persons; and
3. Persons to whom the privileged Requisites: (VCC)
communication were made. 1. There was a valid marital relation;

2. The privilege is invoked with respect to a Requisites: (RC-CC-w/oC)

confidential communication between the 1. There is an attorney and client relationship
spouses given during said marriage; and or a kind of consultancy relationship with a
3. The spouse against whom such evidence is prospective client;
being offered has not given his or her consent 2. The privilege is invoked with respect to a
to such testimony. confidential communication between them
made in the course of or with a view to
There is a presumption of confidentiality on professional employment; and
all communication during the marital 3. The client has not given consent to the
relationship between husband and wife: attorney’s testimony thereon; or if the attorney’s
Communications overheard by third persons secretary, stenographer or clerk is sought to be
without knowledge of the spouses do not cease examined, that both the client and the attorney
to be confidential between the spouses and have not given their consent thereto.
neither of them can testify without the consent of
the other. Purpose: To encourage full disclosure by client
to his attorney of all pertinent matters so as to
However, the third party is not disqualified to further the administration of justice.
testify. He cannot be prevented from testifying
because the legal prohibition is directed only to Test: Whether the communications are made to
the spouses (Herrera, p. 319). an attorney with a view of obtaining from him
professional assistance or advice regardless of
Communication made in the presence of third whether there is pending or merely impending
persons with their knowledge, is not confidential. litigation or any litigation.
But where it is uttered in the presence of mere
children who are not interested – the Preliminary communications made for the
communication is confidential (Herrera, p.319). purpose of creating the attorney-client
relationship are within the privilege. However, if
Note: Where there is collusion and voluntary the communications were not made for the
disclosure to third party, the latter becomes an purpose of creating that relationship, they will not
agent and cannot testify. be covered by the privilege even if thereafter the
lawyer becomes counsel of the party in a case
Holder of privilege: The privilege in principle involving said statements.
belongs to the communicating spouse, not to the
other one. The communications covered by the privilege
include verbal statements and documents or
The prohibition arises only when the person in papers entrusted to the attorney, and of facts
whose favor the privilege exists, demands, by learned by the attorney through the act or agency
timely objection to the testimony, that the of his client.
privilege be enforced. (Francisco, vol. 1, 1997)
Note: The weight of authority supports the view
Duration of privilege: The rule rendering one that when the client and attorney become
spouse incompetent to testify to confidential embroiled in a controversy between themselves,
communications is not affected by the death of as in an action filed for payment of attorney’s fees
the other spouse or by absolute divorce or for damages against the negligence of the
(Francisco, vol. 1, p.269). attorney, the privilege is removed from the
attorney’s lips.
B. Privileged communication between Cases where disqualification based on the
attorney and client (Sec. 24 [b]) attorney-client privilege does not apply:
1. Intended to be made public;

2. Intended to be communicated to others; (Regala v. Sandiganbayan, G.R. 105938,

3. Received from third persons not acting in September 20, 1996).
behalf of or as agents of the client; 4. Communications passed in furtherance of
4. Intended for an unlawful purpose; and prospective criminal acts. However, the rule has
5. Made in the presence of third parties who been held to extend to communications which
are strangers to the attorney-client relationship. the attorney, from the circumstances, must
have known to relate to an intended fraud upon
It is not within the profession of a lawyer to advise the client’s creditors.
a client as to how he may commit a crime as a
lawyer is not a gun for hire. Thus, the attorney- Note: Distinguish a present wrongdoing from a
client privilege does not attach, there being no past one. While communications made after the
professional employment in the strict sense wrongful act are privileged, those made
(Genato v. Silapan, Adm. Case No. 4078, July beforehand in contemplation of the fraud or crime
14, 2003). are not (Herrera, p. 336).
The rule applies even to a counsel de officio. Holder of privilege: To the client only belongs
the privilege and therefore he alone can invoke it.
Attorney-Client Privilege as Applied to Identity And he may claim it not only when his attorney is
of Client called upon to disclose professional
General Rule: A lawyer may not invoke the communications, but also when he himself is
privilege and refuse to divulge the name or asked to make the disclosure (Francisco, vol. 1,
identity of his client. p.280).
Rationale: Duration of privilege: The privilege protecting

1. The court has a right to know that the client communications continues even after the relation
whose privileged information is sought to be of client and attorney is terminated. The seal of
protected is flesh and blood. the law once fixed upon them remains forever,
2. The privilege begins to exist only after the unless removed by the party himself in whose
attorney-client relationship has been favor it is there placed (Francisco, vol. 1, p.281).
established. The relationship does not attach
until there is a client. Exception: Statements which have been made
3. The privilege generally pertains to the by a client to his attorneys by way of instructions
subject matter of the relationship. to be carried out by them after the client’s death,
4. Due process considerations require that the and which must then necessarily be disclosed,
opposing party should, as a general rule, know are privileged only during the client’s life (Herrera,
his adversary (Regala v. Sandiganbayan, G.R. p. 340).
105938, September 20, 1996).
Exceptions:
1. Where a strong possibility exists that Exception to the exception: When the client’s
revealing the client’s name would implicate the will is attacked. The lawyer may disclose
client in the very activity for which he sought the confidential communications to uphold the will of
lawyer’s advice; the testator (Herrera, p. 340).
2. Where disclosure would open the client to
civil liability; and
3. Where the prosecutors have no case C. Privileged communication between
against the client unless by revealing the doctor and patient (Sec. 24 [c])
client’s name, the said name would furnish the
only link that would form the chain of testimony Requisites: (APc-CRC)
necessary to convict an individual for a crime

1. The physician is authorized to practice 5. There was a waiver of the privilege either by
medicine, surgery or obstetrics; provisions of contract or law, e.g. in Sec. 4 of
2. The information was acquired or the advice Rule 28 under which if the party examined
or treatment was given by him in his obtains a report on said examination or takes
professional capacity for the purpose of treating the deposition of the examiner, he thereby
or curing the patient; waives any privilege regarding any other
3. The information is confidential; examination of said physical or mental condition
4. The information, advice or treatment, if conducted or to be conducted on him by any
revealed, would blacken the reputation of the other physician.
patient; and
5. The privilege is invoked in a civil case, Test to determine whether information given
whether the patient is a party thereto or not. in the presence of third parties is privileged:
Whether a third person was an agent of the
Purpose: Intended to facilitate and make safe, doctor in a professional capacity
full and confidential disclosure by the patient to Dentist, pharmacist or nurses are disqualified if
the physician of all facts, circumstances and acting as agents.
symptoms untrammeled by apprehension of their
subsequent and enforced disclosure and Scope of prohibition: Applies not only to
publication on the witness stand to the end that communication but also to opinions or
the physician may form a correct opinion and prescriptions.
enabled safely and efficaciously to treat his
patient. Not all information obtained confidentially by the
physician from the patient and necessary for his
When is the physician acting in his treatment are within the privilege. The information
professional capacity? When he attends to the held to be privileged is that which would blacken
patient for curative, preventive or palliative the reputation of the patient.
treatment.
Note: It is only the tenor of the communication by
Note: It is essential that at the time the the patient to the doctor that is privileged. Hence,
communication was made, the professional the fact of communication, the date and
relationship of physician and patient existed. frequency of consultation with the doctor are
However, it is NOT necessary that the physician- excluded (Lim v. Court of Appeals, G.R. No.
patient relationship was created through the 91114, September 25, 1992; 282-283).
voluntary act of the patient. Thus, the treatment
may have been given at the behest of another, Duration of the prohibition: Continues after
the patient being in extremis. death but it may be waived by the personal
representative of the decedent.
When privilege does not apply: (CI-UPW)
1. Where the communication was not given in Note: Padilla was of the view that the privilege is
confidence; eternal. However, passages from Ruling Case
2. The communication is irrelevant to the Law suggest the necessity of continuity of the
professional employment; bond between the patient and the physician and it
3. The communication was made for an follows that the physician is not hampered from
unlawful purpose testifying as to information respecting a patient
4. The information was intended to be made which he acquired either before the relation
public, e.g. under Rule 28 of the Rules of Court, began or after its termination (Peralta, Jr.,
the results of the physical and mental Perspectives of Evidence, 2005 Edition, page
examination of a person when ordered by the 215, citing 1 Padilla, Evidence Annotated, 1971
court and also, the results of autopsies or Edition, page 358 and 28 Ruling Case Law, pp.
postmortem examinations; 539-540).

1. The holder of the privilege is the

Privilege not violated where doctor testified government, acting through a public officer;
as expert: The predominating view, with scant 2. The communication was given to the public
authority otherwise, is that the statutory officer in confidence;
physician-patient privilege, though duly claimed, 3. The communication was given during the
is not violated by permitting a physician to give term of office of the public officer but the
expert opinion testimony in response to a strictly privilege may be invoked not only during the
hypothetical question in a lawsuit involving term of office of the public officer but also after;
physical mental condition of a patient whom he 4. The public interest would suffer by the
has attended professionally, where his opinion is disclosure of the communication.
based strictly upon the hypothetical facts stated,
excluding and disregarding any personal F. Other privileged matters
professional knowledge he may have concerning 1. The guardian ad litem shall not testify in any
such patient. But in order to avoid the bar of proceeding concerning any information,
physician-patient privilege where it is asserted in statement, or opinion received from the child in
such a case, the physician must base his opinion the course of serving as a guardian ad litem,
solely upon the facts hypothesized in the unless the court finds it necessary to promote
question, excluding from consideration his the best interests of the child (Sec. 5 [e] of the
personal knowledge of the patient acquired Rule on Examination of a Child Witness);
through the physician and patient relationship. If 2. The publisher, editor or duly accredited
he cannot or does not exclude from such reporter of any newspaper, magazine or
consideration his personal professional periodical of general circulation cannot be
knowledge of the patient’s condition, he should compelled to reveal the source of any news
not be permitted to testify as to his expert opinion report or information which was related in
(Herrera, pp. 347-348). confidence to him, unless the court or a House
or committee of Congress finds that such
revelation is demanded by the security of the
D. Privileged communication between State (R.A. No. 53,as amended by R.A. No.
priest and penitent (Sec. 24 [d]) 1477);
3. Voters may not be compelled to disclose for
Requisites: (PC-CP) whom they voted;
1. The confession must have been made to 4. Trade secrets;
the priest in his professional character in the 5. Bank Deposits (Sec. 2, R.A. No. 1405)
course of discipline enjoined by the church to Reason of the Rule: The mantle of
which he belongs; confidentiality is thrown around bank deposit in
2. The communications made were order to encourage people to deposit their
confidential and penitential in character. funds in banks.
The rationale for the rule is to allow and Note: While Section 2 of R.A. No. 1405
encourage individuals to fulfill their religious, declares bank deposits to be "absolutely
emotional or other needs by protecting confidential," it nevertheless allows such
confidential disclosures to religious practitioners disclosure in the following instances: (1) Upon
(Peralta, Jr., Perspectives of Evidence, 2005 written permission of the depositor; (2) In cases
Edition, page 220, citing Evidence, Oregon State of impeachment; (3) Upon order of a competent
Bar Committee on Continuing Legal Education). court in cases of bribery or dereliction of duty of
public officials; (4) In cases where the money
E. Privileged communication to public deposited is the subject matter of the litigation
officers (Sec. 24 [e]) (Philippine National Bank v. Gancayco, G.R.
No. L-18343, September 30, 1965).
Requisites: (HC-TPi)

6. Informer’s Privilege – the prosecutor may No person may be compelled to testify against his
not be compelled to present an informer to parents, other direct ascendants, children or other
protect his identity and when his testimony direct descendants.
would be merely cumulative and corroborative
(Herrera, p.363); Two privileges under Section 25
7. Conciliators and similar officials shall not 1. Parental – the witness cannot be compelled
testify in any court or body regarding any matter to testify against his child or other direct
taken up at the conciliation proceedings descendants
conducted by them (Art.233 of the Labor Code); 2. Filial – the witness cannot be compelled to
8. Information contained in tax census returns testify against his parents or direct ascendants
Note: In case a taxpayer files an application to Rationale: To preserve family cohesion.

compromise the payment of his tax liabilities on
his claim that his financial position Note: Article 215 of the Family Code (FC) provides
demonstrates a clear inability to pay the tax that “No descendant shall be compelled, in a
assessed, his application shall not be criminal case, to testify against his parents and
considered unless and until he waives in writing grandparents, except when such testimony is
his privilege under R.A. No. 1405 or under other indispensable in a crime against the descendant or
general or special laws, and such waiver shall by one against the other.”
constitute the authority of the Commissioner to
inquire into the bank deposits of the taxpayer Rule 130, Sec. 25 of the Rules of Court does not
(Sec. 6 (F), National Internal Revenue Code of provide for an exception, such as that found in Art.
1997). 215 of the F.C..
9. Communications of suspicious transactions
to AMLC under the AMLA. Which should be applied in case of conflict? It
was suggested that the Rules of Court should apply
Note: “When reporting covered or suspicious because it took effect in 1989 as compared to the
transactions to the AMLC, covered persons and Family Code which took effect in 1988. It may be
their officers and employees are prohibited from argued that the former is procedural and the latter
communicating, directly or indirectly, in any is substantive; however, it was further suggested
manner or by any means, to any person or that although the Family Code provision is
entity, the media, the fact that a covered or substantive, it is procedural in character. So, of
suspicious transaction has been reported or is these two provisions, the Rules of Court, which was
about to be reported, the contents of the report, made by the Supreme Court, should prevail. (See
or any other information in relation thereto. PNB vs. Asuncion, G.R. No. L-46095, November
Neither may such reporting be published or 23, 1977)
aired in any manner or form by the mass media,
electronic mail, or other similar devices. In case Extrajudicial Admissions and Confessions
of violation thereof, the concerned officer and
employee of the covered person and media SECTION 26. ADMISSIONS OF A PARTY
shall be held criminally liable (Sec. 7, R.A. No.
10365). Admission
Any extra-judicial statement or conduct (act or
Note: The confidential character of a privileged omission) by a party that is inconsistent with the
communication is not lost solely on the ground that position the party presently takes.
it is in the form of an electronic document (Section
3, Rule 3 of the Rules on Electronic Evidence). Admission is not hearsay and not a hearsay
exception (Bautista, 2007).
SECTION 25. PARENTAL AND FILIAL
PRIVILEGE

Rule on admissions: The act, declaration or evidence, which is the lack of opportunity for cross-
omission of a party as to a relevant fact may be examination by the adverse party.
given in evidence against him.
Inherent untrustworthiness and it would open the
The rule that the admission must be made by the door to fraud and fabrication of testimony.
party himself does not apply if it is an adoptive
admission. When self-serving statements admissible
1. When they form part of the res gestae;
Classifications of admission 2. When they are in the form of complaint and
1. Judicial Admission exclamations of pain and suffering;
a. Formal – made in writing (i.e. pleadings, 3. When they are part of a confession offered
motions, stipulations of fact) by the prosecution;
b. Informal – made orally (i.e. those made in 4. Where the credibility of a party has been
the course or a party’s or a witness’s testimony, assailed on the ground that his testimony is a
depositions, affidavits or statements of counsel) recent fabrication, in which case his prior
2. Extrajudicial Admission declaration, even if self-serving, may be admitted
a. Express – made in a definite, certain and (Testimonial Rehabilitation);
unequivocal language 5. Where they are offered by the opponent;
b. Implied – those which may be inferred from 6. Where they are offered without objection.
the act, conduct, declaration, silence or
omission of a party Admission vis-à-vis confession: Every
confession is an admission, but not all admissions
Extra-Judicial are confessions.
Judicial Admission
Admission
Rule 129, Sec. 4 Rule 130, Sec. 26 Admission is something less than a confession and
In the course of a is but an acknowledgement of some fact or
Out-of-court circumstance which in itself is insufficient to
proceeding in the
declaration authorize a conviction, and which tends only to
same case
Does not require proof Requires proof establish the ultimate fact of guilt (People of the
Philippines v. Corsino, G.R. No. 110107, January
Conclusive upon the
Rebuttable 26, 1995).
admitter
Admissible even if Admissible only if Admission
self-serving disserving Confession
Subject to Not subject to Nature
cross-examination cross-examination Statement of facts Statement of facts
which does not involve which involves an
an acknowledgment of acknowledgement of
Admissions in the course of discovery proceedings guilt. guilt.
are judicial admissions. Applicability
Civil transactions and to
Acknowledgment of
matters of fact in
guilt only in criminal
Self-Serving Declaration criminal cases not
cases.
Self-serving declaration refers to one which has involving criminal intent.
been made extra-judicially by the party to favor his By whom made
interest. May be made by third Can be made only
persons. by the party himself.
Self-serving declarations are inadmissible : It is Manner
excluded on the same ground as any hearsay Express or implied Always express

Principles showing implied admission allegations therein…” (Pilapil v. Carillo, A.C. No.
5843, January 14, 2003).
1. Laches: there is unreasonable delay in the
prosecution of a civil or criminal suit which gives Introduction of admission in evidence
rise to an implied admission of lack of merit a. As independent evidence – admissions are
(Herrera, p. 431) original evidence and no foundation is necessary
2. Flight and concealment: Flight of the for their introduction in evidence.
accused after the commission of the offense is b. As impeaching evidence – a proper
evidence of guilt (Adame v. Court of Appeals, GR foundation must be laid (Rule 132, Section 13).
No. 139830, Nov. 21, 2002).
SECTION 27. OFFER OF COMPROMISE NOT
ADMISSIBLE
Rationale: The wicked flee, even when no man
pursueth; but the righteous are as bold as a lion. Compromise
An agreement made between two or more parties
as a settlement of matters in dispute (Bouvier’s Law
Note: However, the fact that the accused did not Dictionary).
flee from the scene of the crime is not sufficient
ground to exculpate a person from liability In civil cases, an offer of compromise is not an
(People of the Philippines v. Joel Sartagoda, G.R. admission of any liability, and is not admissible in
No. 97525. April 7, 1993). evidence against the offeror.
Rationale: It is the policy of the law to favor the

settlement of disputes, to foster compromises and
Rationale: Non-flight will be considered as an act to promote peace.
favorable to the interest of the accused.
Otherwise, the litigant is allowed to manufacture Exception: When such offer is clearly not only to
his own evidence in order to prove his stand. buy peace but amounts to an admission of liability
the offered compromise being directed only to the
3. Conduct and demeanor of a party at the trial amount paid (El Varadero de Manila v. Insular
tending to show consciousness of liability may be Lumber, G.R. No. 21911, September 15, 1924).
admitted against such party (Herrera, p. 385).
4. Attempt to Influence the Witness: Whether The fact that a writing contains an offer of
the influence tended to bring forth false testimony compromise does not render it inadmissible in
or to suppress evidence is an implied admission evidence if it is competent evidence for other
that a party has no case. Otherwise, it is not purposes. Thus, an express and unqualified
necessary for him to fabricate or suppress admission of indebtedness accompanying an offer
evidence. of compromise is admissible in evidence
5. A change for the better in the financial (Francisco, 1997).
condition of a person accused of crime involving
money immediately or shortly after the date of the In criminal cases, an offer of compromise by the
commission of the crime. Theory: Sudden accused may be received in evidence as an implied
unexplained possession of funds has a tendency admission of guilt.
to connect a person with the crime.
6. In an administrative complaint against a A plea of forgiveness may be considered
lawyer for his negligence in the performance of analogous to an attempt to compromise a criminal
duties as counsel: “…Respondent’s failure to file case since no one would ask for forgiveness unless
an answer to the complaint despite notice from he had committed some wrong.
the IBP amounts to an admission of the
Exceptions:

1. Those involving quasi-offenses or criminal

negligence (e.g. Reckless Imprudence); Although a judicial or an extra-judicial amicable
2. Those covered by the Katarungang settlement does not bear the court’s approval,
Pambarangay Law; “…the agreement can become the source of rights
3. BP 22 – the drawer or maker is allowed to and obligations of the parties” (Iloilo Traders
pay in full the holder of the check within 5 banking Finance Inc. v. Heirs of Soriano, G.R. No. 149683,
days from notice that the check has not been June 16, 2003).
paid;
4. Plea of guilty later withdrawn; No compromise is allowed in the following
5. An unaccepted offer of plea of guilty to a cases: (CVG-SJL-HE)
lesser offense; 1. Civil status of persons;
6. An offer to pay or the payment of medical, 2. Validity of a marriage or legal separation;
hospital or other expenses occasioned by an 3. Any ground for legal separation;
injury; 4. Future support;
7. Tax cases, as the law provides that the 5. Jurisdiction of courts;
payment of any internal revenue tax may be 6. Future legitime; and
compromised, and all criminal violations may 7. Habeas corpus and election cases.
likewise be compromised, except those already
filed in court and those involving fraud (Sec. 204, Principle of res inter alios acta alteri nocere non
R.A. No. 8424). debet
(Things done between strangers ought not to injure
An offer of compromise that may be considered an those who are not parties to it.)
implied admission need not be made by the
accused himself; it may be made by his lawyer or 1st part: Sec. 28: The rights of a party cannot be
relatives, provided it is made with the consent of prejudiced by an act, declaration, or omission of
the accused or with his knowledge and he does not another, except as hereinafter provided such as
stop it. vicarious admissions.
The Good Samaritan Rule 2nd part: Sec. 34: Similar acts as evidence.
An offer to pay or the payment of medical, hospital
and other expenses occasioned by an injury is not The above rule has reference only to extrajudicial
admissible in evidence as proof of civil and criminal declarations. Hence, statements made in open
liability for the injury (Section 27, par 2, Rule 130). court by a witness implicating a person aside from
his own judicial admissions, are admissible as
Rationale: To encourage the giving of charitable declarations from one who has personal knowledge
and meritorious aid to the victims of accidental of the facts testified to.
harm plus a concern that such payment may have
been prompted solely by humanitarian motives. Exceptions to the principle of res inter alios
acta
Offer of Compromise vs. ordinary admission
Offer of Compromise Ordinary Admission Vicarious admissions: The basis for admitting
such admission is that the person making the
The proposal is statement is under the same circumstances as the
The intention is
tentative and any person against whom it is offered.
apparently to admit
statement made in
liability and to seek to
connection with it is A. Admissions by a co-partner or agent
buy or secure relief
hypothetical — to buy (Sec.29)
against a liability
peace and, in Requisites: (SEO)
recognized as such.
contemplation of
mutual concessions.

1. The act or declaration of a partner or agent B. Admission by conspirator (Sec. 30): It

of the party must be within the scope of his refers to an extrajudicial declaration of a
authority; conspirator, and not to his testimony given on the
2. During the existence of the partnership or stand which is subject to cross-examination.
agency; and
3. After the partnership or agency is shown by Requisites: (OCE)
evidence other than such act or declaration. 1. Conspiracy must be first proved by
evidence other than the admission itself;
Rationale: What is done by an agent within the 2. Admission relates to the conspiracy; and
scope of his agency is in legal effect done by the 3. It has been made while the declarant was
principal. engaged in carrying out the conspiracy.
Note: The same rule applies to the act or Proving conspiracy: Proof of the agreement
declaration of a joint owner, joint debtor, or other need not rest on direct evidence. The agreement
person jointly interested with the party (Sec. 29). itself may be inferred from the conduct of the
parties or from the mode or manner in which the
The admissions of one partner are received offense was carried out as well as the
against another, not on the ground that they are circumstances surrounding the commission of the
parties to the record, but on the ground that they offense, disclosing a common understanding
are identified in interest, and that each is agent among them with respect to the commission of
for the other, and that the acts and declarations of the offense (Herrera, 411).
one during the existence of the partnership, while
transacting its business and within the scope of Principle of implied conspiracy: Conspiracy
the business, are evidence against the other/s. may be justified by circumstantial evidence, that
is, their community of purpose and their unity of
Where the admissions are made in connection design in the contemporaneous or simultaneous
with the winding up of the partnership affairs, said performance of the act (Herrera, p. 411).
admissions are still admissible as the partner is
acting as an agent of his co-partners in said The arrest of the declarant is often found to
winding up. terminate the declarants’ participation in the
conspiracy so that the declarant’s post-arrest
Proving the partnership, agency or joint statements do not qualify as admissible co-
ownership: These relationships can be proved conspirator statements.
by documentary evidence or testimonial
evidence. C. Admission by privies (Sec. 31)
Entries in the partnership books made by one Privies

partner during the continuance of the partnership Those who have mutual or successive
are admissible against both or all the members of relationship to the same rights of property or
the firm (Herrera, p. 399). subject matter such as personal representatives,
heirs, devisees, legatees, assigns, voluntary
The partnership’s existence may also be proved grantees, or judgment creditors or purchasers
by the separate admissions of all who are sued, from them with notice of the facts.
or by the acts, or declarations and conduct of the
parties, or by the act of one and the declarations The declarant was so situated that his interest
or conduct of others. It must be noted that the were such that he would not have made the
statement should refer to matters within the admission to the prejudice of his title or
scope of the partnership; otherwise, it is not possession unless they were true. The declarant
admissible (Herrera, p. 400). need not be presented as witness. His statement

may be proved by those who have knowledge of 4. The facts were within his knowledge; and
them. 5. The fact admitted or inference to be drawn
from his silence would be material to the issue.
Requisites: (TP2)
1. There must be privity between the party and When adoptive admission not applicable
the declarant; 1. The statement is made beyond the hearing
2. The declarant as predecessor in interest distance;
made the declaration while holding the title to 2. The statement is written and the addressee
the property; and never wrote back or denied;
3. The admission relates to the property. 3. When no good reasons exist for the party to
comment on the act or declaration;
D. Admission by silence (Sec. 32) 4. Where it is not proper for the party to
comment;
Requisites: (HoDU-IKM) 5. Where the act or declaration was made in
1. He must have heard or observed the act or the course of an official investigation (i.e. in a
declaration of the other person; custodial investigation where the suspect may
2. He must have had the opportunity to deny invoke his right to remain silent); and
it; 6. Silence is upon lawyer’s advice.
3. He must have understood the statement;
4. He must have an interest to object, such Instances where there is no implied
that he would naturally have done so, if the admission (U2M-C2D)
statement was not true; 1. Allegations of unliquidated damages;
5. The facts were within his knowledge; and 2. Allegations which are not material to the
6. The fact admitted or the inference to be cause of action;
drawn from his silence is material to the issue. 3. Conclusions of fact/ law;
4. Allegations of usury other than in a
Qui tacet consentire videtur: He who is silent complaint;
appears to consent. 5. If defendant has not filed his answer and is
declared in default; or
Note: The accused’s right to remain silent 6. Act or declaration was made in the course
prevails over this section. of a custodial investigation.
Doctrine of Adoptive Admission Note: It has, however, been held that the
An adoptive admission is a party’s reaction to a reenactment of the crime is not part of a formal
statement or action by another person when it is official investigation. The reenactment is a police
reasonable to treat the party’s reaction as an continuance, designed to test the truthfulness of
admission of something stated or implied by the the statements of the witnesses who had
other person (Estrada v. Desierto, G.R. Nos. confessed the commission of the offense. Where
146710-15, April 3, 2001). In this case, Estrada’s the accused acquiesced and willingly took part,
admission of his resignation as President was although silently in the reenactment of a crime,
based on the diary of Angara. his acts therein may be considered evidence
against him (Herrera, p. 428).
Requisites
1. The statement was heard and understood; E. Interlocking confession: Where several
2. The party was at liberty to interpose a extrajudicial confessions had been made by
denial; several persons charged with the same offense
3. Statement was in respect to some other and without the possibility of collusion, the fact
matter affecting his rights or in which he was that the statements are in all respects identical is
then interested and calling naturally for an confirmatory of the confessions of the co-
answer;

defendants and are admissible against the the latter’s absence, upon a valid waiver;
persons implicated therein (Agpalo, p.181). otherwise, such extrajudicial confession shall be
inadmissible as evidence any proceeding (R.A.
SECTION 33. CONFESSION (refers to extra- No. 7438).
judicial confession)
If the accused admits having committed the act in
Key principle: Sec. 12, Art. III of the 1987 question but alleges a justification therefor, the
Constitution same is merely an admission.
Discharge of accused to be a state witness

Judicial Confession Rule 119, Section 17: Information is already filed
One made by the accused before a court in which in court. Sworn statement admitting the offense
the case is pending and in the course of legal shall be inadmissible in evidence if the court denies
proceedings therein and, by itself, can sustain a the motion for discharge of the accused as a state
conviction. When one enters a plea of guilty in a witness.
criminal case, it is considered as a judicial
confession. Witness Protection Program Act: Even before
information is filed. The admission of the
However, in capital offenses, the prosecution is commission of the offense may not be admissible in
required to present evidence notwithstanding the court as long as the accused will carry out his
plea of guilt by the accused and the court must be commitments to the prosecutor.
satisfied that such plea was entered voluntarily and
with full comprehension of the consequences of State Witness
such act (Rule 116, Sec. 3). He is one of two or more persons jointly charged
with the commission of the crime, who is
Extrajudicial Confession discharged with his consent as such accused so
The declaration of an accused acknowledging his that he may be a witness for the State.
guilt of the offense charged or of any offense
necessarily included therein. Such may be given in Requisites for one to be a state witness
evidence against him. Extrajudicial confession 1. There is absolute necessity for the
cannot sustain a conviction unless its voluntariness testimony of the accused whose discharge is
is proven and unless corroborated by evidence of requested;
the corpus delicti. For an extrajudicial confession to 2. There is no other direct evidence available
be admissible, the following requirements must be for the proper prosecution of the offense
present: (EOV-IC2W) committed, except the testimony of the said
1. The confession must involve an express accused;
and categorical acknowledgment of guilt; 3. The testimony of said accused can be
2. The facts admitted must be constitutive of a substantially corroborated in its material points;
criminal offense; 4. Said accused does not appear to be the
3. The confession must have been given most guilty; and
voluntarily; 5. Said accused has not at any time been
4. The confession must have been intelligently convicted of any offense involving moral turpitude
made, the accused realizing the importance or (Sec. 17, Rule 119).
legal significance of his act;
5. There must have been no violation of Sec. General Rule: An extra-judicial confession is
12, Art. III of the 1987 Constitution; and admissible against the confessor only. It is
6. Any extrajudicial confession made by a incompetent evidence against his co-accused for
person arrested, detained or under custodial being hearsay and because of the res inter alios
investigation shall be in writing and signed by acta rule.
such person in the presence of his counsel, or, in

Exceptions: When admissible against the co- to focus on a particular suspect who is taken into
defendants custody and asked questions that lead into eliciting
1. If the co-defendants impliedly acquiesced in incriminating statements.
or adopted said confession;
2. Interlocking Confessions — If the accused Note: The presumption of regularity of official acts
persons voluntarily and independently executed does not apply during in-custody investigation.
identical confession without collusion, and
corroborated by other evidence; Right Against Self- Rights in Custodial
3. Where the accused admitted the facts Incrimination Investigation
stated by the confessant after being apprised of
such confession; Sec. 17, Art. III Sec. 12, Art. III
4. If they are charged as co-conspirators of the
crime which was confessed by one of the Accorded every Only those under
accused and said confession is used only as person who gives custodial investigation
corroborating evidence; evidence, whether
5. Where the confession is used as voluntarily or under
circumstantial evidence to show the probability of
participation by the co-conspirator; compulsion of
6. When the confessant testified for his co- subpoena, in any civil,
defendant; and criminal, or
7. Where the co-conspirator’s extrajudicial administrative
confession is corroborated by other evidence of proceeding
record. The judge, other Any person under
officer presiding over a investigation for the
In line with the 1987 Constitution, illegal trial, hearing, or commission of an
confessions and admissions are inadmissible investigation, has no
against the confessant or the admitter but are offense must be
obligation to advise a
admissible against the persons who violated the informed of his rights
witness of his right
constitutional prohibition in obtaining such illegal
confessions or admissions. against self-
incrimination
The rights enumerated in Sec. 12 (1), Art. III of the The right vs. self- Need not be claimed
Constitution exist only in custodial investigations. incrimination
Hence, admissions in a counter-affidavit during a
preliminary investigation, even if made in the is not self-executing
absence of a counsel, are admissible in evidence.
A person undergoing preliminary investigation or automatically
before the public prosecutor cannot be considered operational. It must be
as being under custodial investigation (Ladiana v. claimed. It may be
People of the Philippines, G.R. No. 144293, waived, expressly, or
December 4, 2002). impliedly, as by a
failure to claim it at the
Custodial Investigation appropriate time
A questioning initiated by the law enforcement
officers after a person has been taken into custody
or otherwise deprived of his freedom of action in The rights under custodial investigation do not
any significant way. terminate with the filing of the information: In
People of the Philippines v. Maqueda (G.R. No.
It is present where the investigation ceases to be a 112983, March 22, 1995) the court held that “the
general inquiry into an unsolved crime and begins
right to remain silent and to counsel and to be

informed thereof under the second paragraph of the attention of the court from the charge
Section 20 are available to a person at any time immediately before it.
before arraignment whenever he is investigated for
the commission of an offense.” Exceptions: (SKIPS-SCHUL)
It may be received to prove:
1. Specific Intent
Who may be admitted to the witness protection, 2. Knowledge;
security and benefit program? Any person who 3. Identity;
has witnessed or has knowledge or information on 4. Plan
the commission of a crime and has testified or is 5. System;
testifying or about to testify before any judicial or 6. Scheme;
quasi-judicial body or before any investigation 7. Custom
authority may be admitted provided that: 8. Habit; or
1. The offense in which his testimony will be 9. Usage; and the like.
used is a grave felony as defined under the
Revised Penal Code, or its equivalent under the The admissibility of similar acts or previous conduct
special laws; would depend on the purpose for which such acts
2. His testimony can be substantially or conduct is offered (Riano, 2009).
corroborated in its material points;
3. He or any member of his family within the e.g. Evidence of the other crimes, acts or wrongs of
second degree civil degree of consanguinity or the accused is admissible to show that the offense
affinity is subjected to threat to life or bodily injury for which he is currently charged and the said
or there is likelihood that he will be killed, forced, previous similar acts show the “signature” or
intimidated, harassed or corrupted to prevent him “handiwork” of the accused, because of identical
from testifying, or to testify falsely, or evasively, modus operandi.
because or on account of his testimony; and
4. He is not a law enforcement officer even if SECTION 35. UNACCEPTED OFFER
he would be testifying against the other law An offer in writing to pay a particular sum of money
enforcement officers. In such a case, only the or to deliver a written instrument or specific
immediate members of his family may avail personal property is, if rejected without valid cause,
themselves of the protection provided under the equivalent to the actual production and tender of
Act (Sec. 3, R.A. No. 6981 or Witness Protection, the money, instrument, or property.
Security and Benefit Act).
The tender of payment, if refused, does not
extinguish an obligation unless completed or
SECTION 34. SIMILAR ACTS AS EVIDENCE followed by a consignation of the sum due,
This is the second branch of the rule of Res Inter instrument, or property.
Alios Acta, and applies to both civil and criminal
cases. This is also referred to as the Propensity The effect of tender without consignation is to
Rule. exempt the debtor from payment of interest and/or
damages (Agpalo, p.186).
General Rule: Evidence that one did or did not do
a certain thing at one time is not admissible to Testimonial Knowledge
prove that he did or did not do the same or similar
thing at another time. SECTION 36. TESTIMONY GENERALLY
CONFINED TO PERSONAL KNOWLEDGE;
Rationale: Evidence of other crimes compels the HEARSAY EXCLUDED
defendant to meet charges of which the indictment
gives him no information, confuses him in his Hearsay Rule: A witness can testify only to those
defense, raises a variety of issues, and thus diverts facts which he knows of his personal knowledge;

that is, which are derived from his own perception,

except as otherwise provided in these rules. Concepts of hearsay evidence
1. Any evidence, whether oral or documentary,
Hearsay is hearsay if its probative value is not based on
Includes all assertions which have not been subject the personal knowledge of the witness but on the
to opportunity for cross-examination by the knowledge of some other person not on the
adversary at the trial in which they are being witness stand (Regalado, p.736).
offered against him. 2. Hearsay evidence also includes all
assertions which (although derived from personal
It covers written or oral statements. knowledge) have not been subject to cross-
examination by the adversary at the trial in which
Its probative value depends, in whole or in part, on they are being offered against him (Herrera,
the competency and credibility of some persons p.564).
other than the witness by whom it is sought to
produce it (Estrada v. Desierto, 356 SCRA 108). It is the loss of opportunity to cross-examine, and
not the loss of cross-examination itself which
Specific elements of hearsay makes an assertion hearsay evidence.
1. There must be an out of court statement,
whether oral or written, or a conduct intended as Double Hearsay
an assertion; and Those which are derived from another who also
2. That statement made out of court, is has no personal knowledge of the matters testified
repeated and offered by the witness in court to to (e.g. Newspaper articles).
prove the truth of the matters asserted by the
statement. Non-human Evidence
The testimony of a witness as to statements made
Reason for excluding hearsay: It is not subject to by non-human declarants (machines, etc.). It does
the test of truth because there is no opportunity for not violate the rule against hearsay. The law
cross-examination. In other words, the witness permits the so-called ‘non-human evidence’ on the
cannot swear as to the truth beyond what was told ground that machines and animals, unlike humans,
to him, heard or read. Also, this will be a violation of lack a conscious motivation to tell falsehoods and
the constitutional right to confrontation. because the workings of machines can be
explained by human witnesses who are then
Classifications of out-of-court statements subject to cross-examination by opposing counsel
1. Hearsay – Those which are considered as (Herrera, p. 581).
hearsay and therefore inadmissible. This occurs
when the purpose for introducing the out-of-court Exceptions to the hearsay rule (DDP F-CREEC
statement is to prove the truth of the facts LT)
asserted therein. 1. Dying Declaration;
2. Non-Hearsay — Admissible. This occurs 2. Declaration Against Interest;
when the purpose for introducing the statement is 3. Act or declaration about Pedigree;
not to prove the truth of the facts asserted therein 4. Family reputation or tradition regarding
but only the making of the statements and are pedigree;
admissible in evidence when the making of the 5. Common reputation;
statement is relevant. These are so-called 6. Res Gestae;
Independently Relevant Statements. 7. Entries in the ordinary course of business;
3. Exceptions to the hearsay rule — Those 8. Entries in official records;
which are hearsay but are considered as 9. Commercial lists and the like;
exceptions to the hearsay rule and are therefore 10. Learned treatises; and
admissible (Sections 37 to 47 of Rule 130). 11. Testimony or deposition at a former
proceeding.

13. Rule 8 of the Rules on Electronic Evidence

Note: It is not correct to say that the exceptions to – Business Records as Exception to the Hearsay
the hearsay rule are not hearsay. They are hearsay Rule: A memorandum, report, record or data
evidence but they are deemed admissible for compilation of acts, events, conditions, opinions
certain reasons. or diagnoses, made by electronic, optical, or
other similar means at or near the time of or from
Other exceptions: transmission or supply of information by a
12. Section 28 of the Rules on Examination of a person with knowledge thereof, and kept in the
Child Witness: A statement made by a child regular course or conduct of business activity,
describing any act or attempted act of child and such was the regular practice to make the
abuse, not otherwise admissible under the memorandum, report, record or data compilation
hearsay rule, may be admitted in evidence in any by electronic, optical, or similar means, all of
criminal or non-criminal proceeding. which are shown by the testimony of the
custodian or other qualified witnesses, is
Rules: excepted from the rule on hearsay evidence.
a. Before such hearsay statement may be
admitted, its proponent shall make known to This presumption may be overcome by evidence
the adverse party the intention to offer such of the untrustworthiness of the:
statement and its particulars to provide him a a. Source of information; or
fair opportunity to object. b. The method or circumstances of the
i. If the child is available, the court shall, upon preparation, transmission or storage thereof.
motion of the adverse party, require the Reason for the Exceptions: They are admissible
child to be present at the presentation of the by reason of necessity and trustworthiness.
hearsay statement for cross-examination by
the adverse party. Hearsay evidence not objected to may be
ii. When the child is unavailable, the fact of admissible but, whether objected to or not, it has no
such circumstance must be proved by the probative value and as opposed to direct and
proponent. primary evidence, the latter always prevails.
b. In ruling on the admissibility of such hearsay
statement, the court shall consider the time, Independently relevant statements: An out-of-
content and circumstances thereof which court declaration which while having certain
provide sufficient indicia of reliability. characteristics of hearsay evidence, is not actually
hearsay but is original evidence.
A child witness is deemed unavailable under These are statements which are relevant
the following situations: independently, whether they are true or not. It is
also called as the apparent hearsay.
a. Is deceased, suffers from physical infirmity,
lack of memory, mental illness, or will be
A declarant’s assertion based on the say-so of
exposed to severe psychological injury; or
another is hearsay only if offered to prove the truth
b. Is absent from the hearing and the
of the assertion. If the assertion were offered to
proponent of his statement has been unable to
prove something else, say, its tenor merely, then it
procure his attendance by process or other
is not hearsay and is a direct unattributed assertion
reasonable means.
for that purpose, i.e., to prove the fact that the
assertion was made and not the truth of the
When the child witness is unavailable, his assertion (Bautista, 2007).
hearsay testimony shall be admitted only if
corroborated by other admissible evidence. It is the purpose for which the evidence is offered
which would determine whether the same is
hearsay or not (Riano, 2009).

Classes of Independently Relevant Statements: Requisites: (ICF-DCD)

1. Those statements which are the very fact in 1. That death is imminent and the declarant is
issue (e.g. Slander); conscious of that fact;
2. Those statements which are circumstantial 2. That the declaration refers to the cause and the
evidence of the fact in issue. It includes the surrounding circumstances of such death;
following: 3. That the declaration relates to the facts which the
a. Statement of a person showing his state of victim is competent to testify to;
mind, that is, his mental condition, knowledge, 4. That the declaration is offered in a case wherein
belief, intention, ill will and other emotions; the declarant’s death is subject of the inquiry (the
b. Statements of a person which show his physical victim necessarily must have died);
condition as illness and the like; 5. That the statement is complete in itself (People of
c. Statements of a person from which an inference the Philippines v. De Joya, G.R. No. 75028,
may be made as to the state of mind of another, November 8, 1991); and
that is, knowledge, belief, motive, good 6. The declarant should have died.
faith/bad faith of the latter;
d. Statements which may identify the date, place When a dying declaration lacks one or more of the
and person in question; or requisites for admissibility of a dying declaration,
e. Statements showing the lack of credibility of a the same may be admitted as part of the res gestae
witness. if it was made during or after a startling occurrence
and under the influence thereof (Agpalo, p.200).
SECTION 37. DYING DECLARATION
The ante mortem statements or statement in Dying declaration: It is not considered confidential
articulo mortis made by a person after the mortal communication between spouses.
wound has been inflicted under the belief that death
is certain, stating the facts concerning the cause of Opinions in dying declarations are inadmissible. It
and the circumstances surrounding the attack. is indispensable that the dying declaration should
consist solely of facts, and not of conclusions,
It applies to any case, civil or criminal, where death mental impressions, or opinions (Francisco, 1997).
of the declarant is the subject of the inquiry.
Dying declarations, when admitted in evidence, are
The admission of dying declarations does not subject to impeachment in the same manner and
violate the constitutional right of the accused to for the same causes that the testimony of a witness
confront and cross-examine the witness because given on the witness stand may be impeached
the person who testifies to the dying declarations is (Francisco, 1997).
the witness against the accused and the witness
with whom the accused is entitled to be confronted. Consciousness of an impending death: There
The declarant is not testifying against him must be a settled, hopeless expectation that death
(Francisco, vol. 1, 1997). is at hand. It is sufficient that he believed himself in
imminent danger of death at the time of such
Reason for admissibility declaration.
1. Necessity – the declarant’s death renders
impossible his taking the witness stand. However, death need not follow soon, and rebirth of
2. Trustworthiness – a man at the point of hope between the statement and the declarant’s
death not prone to invent a story. death is immaterial. Neither is the interval between
declarant’s death and his declaration controlling
Truth sits on the lips of the dying man. At the point (Bautista, 2007).
of death, every motive for falsehood is silenced.
The mind is induced by the most powerful The law does not require that the declaration
consideration to speak the truth. explicitly states his perception that he has given up

hope of life. It is enough if from the circumstances it of the hand, a nod of the head or a glance of the
can be inferred with certainty that such must have eye (Agpalo, p.197).
been his state of mind. There must be some
persuasive evidence of the decedent’s The Revised Rules on Evidence do not require that
consciousness that death impended from his a dying declaration must be made in writing to be
wounds, regardless of whether he actually dies admissible. Indeed, to impose such a requirement
very quickly after being wounded, or there is an would exclude many statements from a victim in
appreciable lapse of time between his wounding extrimis for want of paper and pen at a critical
and his dying. Stated otherwise, it is the belief in moment (People of the Philippines v. Viovicente,
impending death and not the rapid succession of G.R. No. 118707, February 2, 1998).
death in point of fact that renders the dying
declaration admissible (People of the Philippines v. SECTION 38. DECLARATIONS AGAINST
Bautista, 278 SCRA 613). INTEREST
How does one prove that declarations were Declaration Against

Admissions
made under the consciousness of an Interest
impending death? The following must be Applicability of the Hearsay Rule
considered: Exception to the
Covered by the
1. The words or statements of the declarant on hearsay rule and
the same occasion; hearsay rule.
admissible.
2. The declarant’s conduct at the time the Kind of Evidence
declaration is made; and Secondary evidence
3. The serious nature of his wounds as would Primary evidence and
and admissible only if
necessarily engender a belief on his part that he admissible even if the
the declarant is
would not survive therefrom (Herrera, p. 602). declarant is available
already dead or
as a witness.
unavailable to testify.
Cause and surrounding circumstances of the
declarant’s death: If the declaration does not The fact asserted in
pertain to the death and its surrounding the declaration must
circumstances, then it is merely a dying
have been at the time
statement. A party’s admission
it was made so far
need not have been
All facts relating to the cause of death are contrary to declarant’s against his interest at
admissible whether the same are in favor of or own interest, the time it was made.
against the accused (Regalado, 2004). pecuniary or moral, It is enough if it is a
that a reasonable man present claim or
Doctrine of Completeness in his position would defense.
A dying declaration to be admissible must be not have made the
complete in itself. To be complete in itself does declaration unless he
not mean that the declarant must recite everything believed it to be true.
that constituted the res gestae of the subject of his
statement, but that his statement of any given fact Whether Declarant be a Party
should be a full expression of all that he intended to It is not necessary that
It is competent only
say as conveying his meaning in respect of such the declarant be a
when the declarant or
fact. party to the action; it is
someone identified in
admissible to an
interest is a party to
Form of dying declaration: It may be spoken, action where his
the action.
written, or any other method of communication declaration is relevant.
between mind and mind, which may be adopted To whom applicable
that will develop the thought, such as the pressure May be admitted Used only against the

against himself or party admitting and

successor in interest those identified with Unable to testify: Where the declarant is not
and against third him in legal interest. unable to testify or there is no showing that he
person. cannot be available to testify, the rule does not
Admissibility upon Death apply (Agpalo, p.201, citing Fuentes, Jr. v. Court of
In declarations against Appeals, G.R. No. 111692. February 9, 1996).
interest, the declarant An admission is made
must first be by the party himself, If his whereabouts are known, his deposition may
accounted for as primary be taken and the exception will not apply (Riano, p.
389).
dead, absent from the
jurisdiction or evidence and
competent though he If the declarant is still alive and available as a
otherwise unavailable witness, his declaration would be admissible only
as a be present in court
and read to as an admission against himself or privies or if he
witness testifies, his statement against interest which he
testify now denies would be admissible against him as a
prior inconsistent statement in some instances.
When Made
Declarations against Interest covered: Proprietary, moral, pecuniary
Admissions may be and penal.
interest must have
made at any time,
been made ante litem
before or during the Pecuniary Interests
motam, that is, before
trial Those which may bar in whole or in part the
the controversy.
declarant’s money claim, or which may give rise to
a monetary claim against him.
Reason for admissibility
1. Necessity – because of the impossibility of Proprietary Interests
obtaining other evidence from the same source, Those which are at variance with the declarant’s
the declarant being unavailable in person on the property rights (Francisco, 1997).
stand.
2. Trustworthiness – there is presumption The declarant must realize at the very time of
that men will not falsify to their prejudice. making the declaration that his declaration is
against his interest, that a reasonable man in his
Persons do not make statements that are position would not have made the declaration
disadvantageous to themselves without substantial unless he believed it to be true.
reason to believe that the statements are true. Self-
interest induces men to be cautious in saying It is essential that at the time of the statement, the
anything against themselves. In other words, we declarant’s interest affected thereby should be
can safely trust a man when he speaks against his actual/real/apparent and not merely contingent,
interest. future or conditional, otherwise, the declaration
would not in reality be against interest.
Requisites: (DIAN)
1. That the declarant is dead or unable to testify; Form of declaration: A declaration against interest
2. That it relates to a fact against the interests of the may be oral or written. Its form is immaterial,
declarant; provided all the essential requisites for its
3. That at the time he made said declaration the admissibility are present. (Francisco, 1997)
declarant was aware that it was contrary to his
aforesaid interest; and SECTION 39. ACT OR DECLARATION ABOUT
4. That the declarant had no motive to falsify and he PEDIGREE
believed such declaration to be true.

Pedigree declarations of the husband’s relatives regarding

Includes relationship, family genealogy, birth, the pedigree of the wife’s relatives, or vice versa,
marriage, death, the dates when and the places are not admissible.
where these facts occurred, and the names of the
relatives. It also embraces facts of family history However, declarations of the father or sister of the
intimately connected with pedigree (Rule 130, Sec. wife with respect to matters of pedigree of the
39). husband’s family have been held to be incompetent
(Francisco, 1997).
It is the history of family descent which is
transmitted from one generation to another by both There is no provision as to the extent of the degree
oral and written declarations and by traditions of relationship.
(Francisco, 1997).
The reputation between the declarant and the
Reason for admissibility person subject of the inquiry must be legitimate,
1. Necessity – because the facts about unless the issue is the legitimacy itself.
pedigree are usually those which occurred many
years before the trial and known only to few Prior evidence of relationship: The rule does not
persons. require that the witness who testifies in court must
2. Trustworthiness – because these are be related to the person whose pedigree is under
matters which members of a family are presumed consideration. It should be the declarant who is so
to be interested in ascertaining the truth. related (Bautista, 2007).
These declarations are natural expressions of Prior evidence is not necessary anymore if the
persons who must know the truth. Although declarant’s own relationship to another is in
hearsay, it is best that the nature of the case admits question.
and because greater evil might arise from the
rejection of such proof than from its admission. Family reputation or tradition in respect to
one’s pedigree may be established:
Requisites: (DR2P) 1. Through testimony in open court of a
1. The actor or declarant is dead or unable to witness who must be a member of the family
testify; either by consanguinity or affinity;
2. The act or declaration is made by a person 2. Through entries in :
related to the subject by birth or marriage; a. Family bible;
3. The relationship between the declarant or b. Family books or charts;
the actor and the subject is shown by evidence c.Engravings on rings; or
other than such act or declaration; and d. Family portraits and the like.
4. The act or declaration was made ante litem
motam or prior to the controversy. SECTION 40. FAMILY REPUTATION OR
TRADITION REGARDING PEDIGREE
Ante litem motam: It is not necessary, however, Section 39 Section 40
that litigation should have actually begun at the Family reputation or
time of the declaration. Act or declaration
tradition regarding
about pedigree.
pedigree.
Rationale: If before the controversy, there is no
motive to misrepresent the facts. Declarant is deceased Declarant is the
or unable to testify. witness himself.
By birth or marriage: The relationship may be by Witness need not be a Witness is a member
birth or by affinity. Accordingly, the declaration of member of the family. of the family.
the husband regarding the pedigree of his wife’s
relatives, and vice versa, is admissible. But

The witness is himself 2. Trustworthiness – these facts are likely to

Relation of the the one to whom the have been generally inquired about and that
declarant and the fact relates, it is not persons having personal knowledge have
person subject of the necessary for him to disclosed facts which thus have been discussed
inquiry must be establish by and generally known in the community (Bautista,
established by independent evidence p. 235).
independent evidence his relationship to the
family. Matters of Matters of
Public Interest General Interest
Reason for admissibility: They are admissible by Common to all citizens Common only to a
reason of necessity since tradition is often the sole of the state or to the single community or to
method by which proof of matters of pedigree can entire people a considerable
be obtained. number of persons
forming part of the
Requisites: (MRT-B) community
1. The witness testifying to the reputation of a
person is a member of the family either by Common Reputation
consanguinity or affinity; The definite opinion of the community in which the
2. The statement is about the reputation or fact to be proved is known or exists. It means the
tradition of the family in respect to the pedigree of general or substantially undivided reputation, as
any member of the family; and distinguished from a partial or qualified one,
3. The reputation or tradition was formed although it need not be unanimous.
before the controversy.
As a general rule, the reputation of a person
Reputation or tradition existing in the family: should be that existing in the place of his residence,
Matters of pedigree may be proved by reputation in it may also be that existing in the place where he is
the family, and not by reputation in the best known.
neighborhood or vicinity except where the pedigree
in question is marriage which may be proved by
Common Reputation Rumor
common reputation in the community (Agpalo,
p.209). Presupposes the Story current without
existence of a general known authority for its
SECTION 41. COMMON REPUTATION belief already formed truth, and, therefore,
The following may be established by common on which the general by its nature, does not
reputation: opinion is founded. yet represent the
1. Matters of public interest more than 30 yrs. prevailing belief in a
old; community (Francisco,
2. Matters of general interest more than 30 vol. 1, p.583).
years old;
3. Matters respecting marriage or moral Character
character and related facts; or That which a person really is, while reputation is
4. Individual moral character; that which he is reputed to be (Francisco, p.301).
Common reputation cannot establish pedigree Evidence of negative good repute: Where the
(Riano, 2009). foundation proof shows that the witness was in
such position that he would have heard reports
Reason for admissibility derogatory to one’s character, the reputation
1. Necessity – because of the usual difficulty testimony may be predicated on the absence of
of obtaining other evidence than reputation. reports of bad reputation or on the fact that the
witness had heard nothing against the person.

Types of res gestae

A man’s character is not talked about till there is 1. Spontaneous Statements – Statements
some fault to be found with it. It is the best made by a person while a startling occurrence is
evidence of his character that he is not talked about taking place or immediately prior or subsequent
at all (Francisco, p.583). thereto with respect to the circumstances thereof;
SECTION 42. PART OF THE RES GESTAE Requisites of admissibility of spontaneous

statements (S3)
Res Gestae a. There must be a startling occurrence;
Literally means “things done”; it includes the b. The statement must relate to the
circumstances, facts, and declarations incidental to circumstances of the startling occurrence; and
the main fact or transaction necessary to illustrate c.The statement must be spontaneous.
its character and also includes acts, words or
declarations which are closely connected therewith The event must be of such a nature as to cause
as to constitute part of the transaction. an excited reaction in an average individual
(Riano, p.380).
What is done or said by the participants under the
immediate spur of the transaction becomes part of The interval of time between the startling
the transaction (Riano, p.376). occurrence and the statement depends upon the
circumstances; but such statement must have
Similarity between res gestae and dying been made while the declarant was under the
declarations: Both constitute hearsay evidence. immediate influence of the startling occurrence.
They are nonetheless admissible as an exception
to the Hearsay Rule (Secs. 37 and 42). However, if the declarant was rendered
unconscious after the startling occurrence, his
Res Gestae in statements relative thereto upon regaining
Connection with a Dying Declarations consciousness are still part of the res gestae
Homicidal Act regardless of the time that intervened in between.
Made by whom?
May be made by the 1. Necessity – natural and spontaneous
killer himself after or Can be made only by utterances are more convincing than the
during the killing OR the victim. testimony of the same person on the stand.
that of a 3rd person. 2. Trustworthiness – the statement is made
instinctively: The facts speaking through the
When Made party not the party talking about the facts.
May precede, Made only after the It is essential that they should have been caused
accompany or be homicidal attack has by something startling enough to produce
made after the been committed. nervous excitement. The declarant must be a
homicidal attack was witness to the event to which the utterance
committed. relates. He must have personally observed the
fact.
Reason for its Admissibility
What the law distrusts is not the “after speech”
Trustworthiness based
Justification in the but “afterthought.”
upon its being given in
spontaneity of the
awareness of The admissibility is anchored on the theory that
statement.
impending death. the statement was uttered under circumstances
where the opportunity to fabricate is absent. The

statement is a reflex action rather than a 5. The entrant must be deceased or unable to
deliberate act, instinctive rather than deliberate testify.
(Riano, p.378).
Example: Entries in the payroll
2. Verbal acts – Statements accompanying an
equivocal act material to the issue, and giving it a Reason for admissibility: Reliability is furnished
legal significance. by the fact that regularly kept records typically have
a high degree of accuracy.
Equivocal Act
Ambiguous, one which in itself does not signify The law does not fix any precise moment when the
anything when taken separately (Riano, p.384). entries should be made. It is sufficient if the entry
was made within a reasonable period of time so
Thus, in bribery, the declaration made by the third that it may appear to have taken place while the
person accompanying the delivery of money is memory of the facts was unimpaired.
admissible.
Entries in the Ordinary Course of Business
Requisites: (VRC) The act or occurrence It means that the entries have been made regularly,
characterized must be equivocal; as is usual, in the management of the trade or
a. Verbal acts must characterize or explain the business. It is essential that there be regularity in
equivocal act; the entries (Agpalo, p.215).
b. Equivocal act must be relevant to the issue;
and How regularity of the entries proved: It may be
c.Verbal acts must be contemporaneous with the proved by the form in which they appear in the
equivocal act. corresponding book.
Spontaneous There is no overriding necessity to bring into courts

Verbal Acts
Statements all the clerk or employees who individually made
The res gestae is the The res gestae is the the entries in a long account. It is sufficient that the
equivocal act. startling occurrence. person who supervises them testify that: (SR)
1. The account was prepared under his
Verbal act must be Statements may be supervision; and
contemporaneous with made prior, or 2. The entries were regularly entered in the
or must accompany immediately after the
ordinary course of business (Regalado, p.751).
the equivocal act. startling occurrence.
When are business records excepted from the
SECTION 43. ENTRIES IN THE COURSE OF Hearsay Rule under the Rules on Electronic
BUSINESS Evidence? The Hearsay Rule is inapplicable when
Otherwise known as the Shop-Book Rule. the following requisites are present:
1. A memorandum, report, record or data
Requisites: (POT-KDU) compilation of acts, events, conditions, opinions
1. That the entrant made the entry in his or diagnoses;
professional capacity or in the performance of a 2. Made by electronic ,optical, or other means;
duty; 3. At or near the time or from the transmission
2. That the entry was made in the ordinary or supply of information;
course of business or duty; 4. Kept in the regular course or conduct of a
3. The entries must have been made at or business activity;
near the time of the transaction to which they 5. And such was the regular practice to make
relate; such memorandum or report; and
4. The entrant must have been in a position to
know the facts stated in the entries; and

6. All of which are shown by the testimony on It is well settled that entries in the police blotter
the custodian or other qualified witness (Sec. 1, should not be given due significance or probative
Rule 8, Rules on Electronic Evidence). value as they are not conclusive evidence of the
truth of their contents but merely of the fact that
SECTION 44. ENTRIES IN OFFICIAL RECORDS they were recorded. Hence, they do not constitute
conclusive proof (People of the Philippines v.
Requisites: (OPK) Cabrera. Jr. G.R. No. 138266, April 30, 2003).
1. That it was made by a public officer or by
another person specially enjoined by law to do Entries in the Course Entries in Official
so; of Business Records
2. That it was made by a public officer in the Whether the Entrant be Dead
performance of his duty, or by another person in The person who made
the performance of a duty specially enjoined by the entries must be There is no such
law; and dead or unable to requirement.
3. The public officer or the other person had testify.
sufficient knowledge of the facts stated by him, Authentication
which he must have acquired personally or
Need not be
through official information. Needs authentication
authenticated
What Rule applies?
To qualify their statements as ‘official information’
acquired by the officers who prepared the reports, Exception to best
the persons who made the statements not only Best evidence rule evidence rule
must have personal knowledge of the facts stated applies (irremovability of
but must have the duty to give such statements for public records)
record (Bautista, p.260). Reason for the Entry
The entries are made The entrant is a public
Example: Monthly reports of judges (Agpalo, p. pursuant to a duty, officer, or if a private
218). either legal, individual, must have
contractual, moral or acted pursuant to a
Reason for admissibility religious. specific legal duty.
1. Necessity – practical impossibility of
requiring the official’s attendance as a witness to
testify to the innumerable transactions occurring SECTION 45. COMMERCIAL LISTS AND THE
in the course of his duty. LIKE
2. Trustworthiness – there is a presumption
of regularity in the performance of official duty. Requisites: (M-CPR)
1. Statements of matters of interest to persons
Probative value: It is only a prima facie evidence engaged in an occupation;
of the fact stated therein. 2. The statements must be contained in a list,
register, periodical or other published compilation;
It is not essential for the officer making the official 3. That compilation is published for use by
statement to have a personal knowledge of the persons engaged in that occupation; and
facts stated by him, it being sufficient that the 4. Is generally relied upon by them.
official information was acquired by officers who
prepared the reports from persons who do not only Example: Mortality tables and accepted actuarial
have personal knowledge of the facts stated but and annuity tables, rate of exchange in
must have the duty to give such statements for the newspapers.
record (Africa v. Caltex, G.R. No. 12986, March 31,
1966). Reason for admissibility

1. Necessity: because of the usual SECTION 47. TESTIMONY OR DEPOSITION AT

inaccessibility of the persons responsible for the A FORMER PROCEEDING
compilation of matters contained in a list, register,
periodical or other published compilation and Requisites: (DUF-PSO)
tremendous inconvenience it would cause to the 1. The testimony or depositions of a witness
court if it would issue summons to these deceased or unable to testify;
numerous individuals. 2. The testimony was given in a former case
2. Trustworthiness: they have no motive to or proceeding, judicial or administrative;
deceive and they further realize that unless the 3. Involving the same parties;
list, register, periodical or other published 4. Relating to the same subject matter; and
compilation are prepared with care and accuracy, 5. The adverse party having had an
their work will have no commercial or probative opportunity to cross-examine him.
value.
What may be admitted as evidence is testimony or
SECTION 46. LEARNED TREATISES deposition. A decision in a previous case involving
In order that a published treatise, periodical or the same parties and subject matter does not fall
pamphlet on a subject of law, history, science or art under the exception (Agpalo, p.221).
may be admissible, it is necessary either:
1. That the court can take judicial notice of it; The requirement of identity of parties is met where
or the party in the former case is in “privity” with, or is
2. A witness, expert in the subject, testifies substantially the same as, a party in the present
that the writer of the statement in the treatise, case (Bautista, 2007).
periodical, or pamphlet is recognized in his
profession or calling as expert in the subject. What is considered as a testimony in the former trial is
the “transcript of the witness’ testimony.”
1. Necessity: the ordinary expert witness has Note: In criminal cases, either party may utilize as
no knowledge derived from personal observation. part of its evidence the testimony of a witness who
He virtually reproduces, literally or in substance, is deceased, out of or cannot with due diligence be
conclusions of others which he accepts on the found in the Philippines, unavailable, or otherwise
authority of the eminent names responsible for unable to testify, given in another case or
them. It would be costly to refuse to accept proceeding, judicial or administrative, involving the
information from a competent source ready at same parties and subject matter, the adverse party
hand. having the opportunity to cross-examine him (Rule
2. Trustworthiness: the learned writers have 115, Sec.1[f]).
no motive to misrepresent. Perhaps, they may be
biased in favor of a certain theory, but it is a bias SECTION 48: OPINION RULE
in favor of the truth as they see it and most
importantly, it is not a bias in favor of a litigant in Opinion
the lawsuit. An inference or conclusion drawn from facts
observed.
Learned writers have no motive to misrepresent.
He is aware that his work will be carefully General rule: Witnesses must give the facts
scrutinized by the learned members of his personally observed by him and not their
profession and that he shall be subject to criticisms inferences, conclusions or opinions.
and ultimately rejected as an authority on the
subject matter if his conclusions are found to be Exceptions:
invalid. 1. Opinion of expert witness: On a matter
requiring SPECIAL knowledge, skill, experience

or training which he is shown to possess (Sec. 2. The witness has been qualified as an
49). expert.
2. Opinion of ordinary witness (HI2M)
a. The identity of a person about whom he has The court is not however, bound by the opinion of
adequate knowledge (Sec. 50[a]); an expert. Expert opinion evidence is to be
b. A handwriting with which he has sufficient considered or weighed by the court like any other
familiarity (Sec. 50 [b]); testimony, in the light of its own general knowledge
c.The mental sanity of a person with whom he is and experience upon the subject of inquiry (Riano,
sufficiently acquainted (Sec. 50 [c]); p.341).
d. The witness’ impressions of the emotion,
behavior, condition or appearance of a person In presenting an expert witness: (QF-HCR)
(Sec. 50 [d]). 1. Introduce and qualify the witness;
2. Let him give his factual testimony, if he has
Reason for admissibility: It is for the court to form knowledge of the facts;
an opinion concerning the facts in proof of which 3. Begin the hypothetical question by asking
evidence is offered. him to assume certain facts as true;
4. Conclude the question, by, first asking the
Witness must testify to facts within their knowledge expert if he has an opinion on a certain point
and may not state their opinions. assuming that these facts are true and secondly,
asking him, after he has answered affirmatively,
SECTION 49: OPINION OF EXPERT WITNESS to give his opinion on the point;
5. After he has stated his opinion, ask him to
Expert Evidence give his reasons.
The testimony of one possessing in regard to a
particular subject or department of human activity, Hypothetical Question: Hypothetical questions
knowledge which is not usually acquired by other may be asked of an expert to elicit his opinion.
persons. Courts, however, are not necessarily bound by the
expert’s findings.
Test: Whether the opinion called for will aid the fact
finder in resolving an issue. A proper hypothetical question places before the
expert witness assumed facts which have been
There is no definite standard of determining the proved. It then calls for an opinion based thereon
degree of skill or knowledge that a witness must (Herrera, Vol. V, p.794).
possess in order to qualify as an expert. It is
sufficient that the following factors be present: (a) Hypothetical questions must include only facts that
training and education; (b) particular, first-hand are supported by evidence (Francisco, p.352).
familiarity with the facts of the case; and (c)
presentation of authorities or standards upon which
his opinion is based. Standards for expert testimony
1. Frye Standard: Scientific evidence is
An expert witness may base his opinion either on admissible if it was based on a scientific
the first-hand knowledge of the facts or on the basis technique generally accepted as reliable in the
of hypothetical questions where the facts are scientific community.
presented to him hypothetically and on the 2. Schwartz Standard: The admissibility of
assumption that they are true, formulates his specific test results in a particular case hinges on
opinion on the hypothesis. the laboratory’s compliance with appropriate
standards and controls, and the availability of
Expert evidence is admissible only if: their testing data and results.
1. The matter to be testified requires expertise; 3. Daubert Standard: The judge must ensure
and that the testimony’s reasoning or method is

scientifically valid and is relevant to the issue. emotion, behavior, condition and appearance of a
Admissibility would depend on factors such as: person (5 Herrera, 1999 ed., p.827).
a. Whether the theory or technique can be or
has been tested; The memory may retain no single detail indeed.
b. Whether the theory or technique has been One may never have recognized a single detail yet
subjected to peer review and publication; the appearance of the man may have left upon the
c.The known or potential rate of error; mind an indelible impression as to his physical and
d. The existence and maintenance of mental condition.
standards controlling the technique’s operation;
and In truth, that which we call opinion is fact. The
e. Whether the theory or technique is generally impression or conclusion is the sum of what he saw
accepted in the scientific community. and in its final analysis, the offer is to prove a fact
4. Kumho Standard: If scientific, technical or and not an opinion.
other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a SECTION 51: CHARACTER EVIDENCE
fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or Character
education, may testify thereto in the form of an The aggregate of the moral qualities which belong
opinion or otherwise, if: to and distinguish an individual person.
a. The testimony is based upon sufficient facts
or data; It is not the same as a man’s reputation because
b. The testimony is the product of reliable the latter depends on attributes which others
principles and methods; and believe one to possess (Riano, 2009).
c. The witness has applied the principles and
methods reliably to the facts of the case. General Rule: Character evidence is not
admissible in evidence under Sec. 51 of Rule 130
of the Revised Rules on Evidence.
In our jurisdiction, the restrictive tests for
admissibility established by Frye-Schwartz and Rationale: The evidence of a person’s character
Daubert-Kumho go into the weight of the evidence does not prove that such person acted in
(Herrera v. Alba, G.R. No. 148220, June 15, 2005). conformity with such character or trait in a particular
occasion.
Exceptions:
Criminal cases:
1. Accused may prove his good moral
character which is pertinent to the moral trait
SECTION 50. OPINION OF ORDINARY WITNESS involved in the offense charge.
Ordinary Opinion Evidence e.g. In prosecutions for estafa, perjury or false
That which is given by a witness who is of ordinary testimony wherein the person’s moral trait for
capacity and who has by opportunity acquired a honesty or probity is involved.
particular knowledge which is outside the limits of
common observation and which may be of value in 2. The prosecution may not prove bad moral
elucidating a matter under consideration. character of the accused unless in rebuttal when
the latter opens the issue by introducing evidence
Shorthand rendering of facts: This is also known of his good moral character.
as instantaneous conclusions of the mind. The
witness may testify on his impressions of the

This prevents a pronouncement of guilt not person sustains in the community or neighborhood
because there exists sufficient evidence of his in which he lives or has lived (Francisco, p.744).
guilt, but because he is a “bad” man.
3. As to the offended party, his good or bad

Specific conduct of the party exhibiting character is
moral character may be proved as long as it
not allowed to prove the character of such person
tends to establish the probability or improbability
for three reasons: undue prejudice, unfair surprise
of the offense charged.
and confusion of issues (Francisco, p.373).
e.g. If the theory of the accused is that he acted
in self-defense, the character of the victim for Person’s character may be proved by:
violence, turbulence, revengefulness and the like
1. Evidence of reputation;
may throw light on the probability of his having
2. Witnesses who know him personally’ and
been the aggressor.
3. In some instances, by evidence of particular
Exceptions to the Exception: acts of said person from whom his character may
be inferred.
1. Proof of the bad character of the victim in a
murder case is not admissible if the crime was
committed through treachery and premeditation;
and
2. In prosecution for rape, evidence of
complainant’s past sexual conduct, opinion
RULE 131
thereof or of his/her reputation shall not be B URDEN OF P ROOF AND
admitted unless, and only to the extent that the P RESUM PT IONS
court finds that such evidence is material and
relevant to the case. SECTION 1. BURDEN OF PROOF (ONUS
PROBANDI)
Civil Cases: The moral character of either party
thereto cannot be proved unless it is pertinent to
Burden of Proof/Risk of Non-Persuasion
the issue of character involved in the case, e.g. In
The duty of a party to present evidence on the facts
civil actions for damages arising from the offenses
in issue necessary to establish his claim or defense
of libel, slander or seduction.
by the amount of evidence required by law.
As to Witnesses:
Proof
The establishment of a requisite degree of belief in
the mind of the trier of fact as to the fact in issue.
Both criminal and civil: the bad moral character
of a witness may always be proved by either party Burden of Evidence
(Sec. 11, Rule 132) but not evidence of his good The duty of a party to go forward with the evidence
moral character, unless such character has been to overthrow the prima facie evidence against him.
impeached (Sec. 14, Rule 132). The burden of going forward with the evidence may
shift from one side to the other as the exigencies of
the trial require, and shifts with alternating
frequency (Riano, p. 408); it is also called burden of
Proving good or bad character of a party: The coming forward with the evidence.
rule is that testimony to prove good or bad
character of a party to a civil action or of the Ei incumbit probatio qui dicit, no qui negat – He
defendant in a criminal prosecution must relate and who asserts, not he who denies, must prove (Martin
be confined to the general reputation which such v. Court of Appeals, G.R. No. 82248, January 30,
1992).

Realty Co. v. Aying, G.R. No. 176664, July 21,

In both civil and criminal cases, the burden of 2008).
evidence lies on the party who asserts an
affirmative allegation. Upon whom burden of proof rests:
A. In Civil Cases
Burden of Proof Burden of Evidence 1. The plaintiff has the burden of proof to show
Shifts from party to the truth of his allegations if the defendant
party depending upon raises a negative defense;
Does not shift and the exigencies of the 2. The defendant has the burden of proof if he
remains throughout case in the course of raises an affirmative defense on the complaint
the entire case exactly the trial. of the plaintiff.
where the pleadings
originally placed it. (E.g., In criminal Note: In civil cases, the burden of proof rests
cases, the duty of upon the party who, as determined by the
(E.g., In criminal presenting evidence pleadings and the nature of the case, asserts the
cases, the burden of initially belongs to the affirmative of an issue.
proof rests on the prosecution, who has
prosecution because the burden of In a civil case, the plaintiff is always compelled to
of the presumption of presenting evidence to allege affirmative assertions (i.e., his cause of
evidence) prove the prima facie action / right violated), and thus, has the duty to
guilt of the accused). prove the existence of such assertions.
Generally determined When the defendant sets up a purely negative

by the developments defense in his answer and neither side produces
of the trial, or by the evidence, the defendant will prevail as the plaintiff
provisions of has not satisfied the required quantum of
Generally determined evidence.
substantive law or
by the pleadings filed
procedural rules which
by the party. On the other hand, when the defendant in his
may relieve the party
from presenting answer sets up an affirmative defense, and there
evidence on the facts is no evidence presented by either side, it is the
alleged. plaintiff who will prevail as an affirmative defense
amounts to an implied admission.
Stage when burden of proof may be determined
a. In civil cases, it is determined primarily on In some cases, like fraud, for reasons of public
the pleadings since it is where the allegations and policy, clear and convincing evidence is required,
defenses are made although it may be changed which is a higher degree of proof (Sierra v. Hon.
during the pre-trial and during the proceedings; Court of Appeals, et al. G.R. No. 90270, July 24,
b. In criminal cases, the accused raises his 1992).
defenses during the pre-trial conference.
However, the issues may not be changed B. Criminal Cases: The burden of proof is
anymore after the pre-trial conference unlike in with the prosecution by reason of the
civil cases since it will already be a violation of presumption of innocence.
the right of the accused to be informed of the
nature and cause of accusation against him. It is required that courts determine first if the
evidence of the prosecution has at least shown a
Test to determine where burden of proof lies: prima facie case before requiring and considering
Which party would fail if he offers no evidence the evidence of the defense.
competent to show the facts averred as the basis
for the relief he seeks to obtain (Aznar Brothers

A plea of self-defense shifts the burden of proof committed an

from the prosecution to the defense since such a offense
plea means that the accused admits to having (Allado v.
performed the criminal act, but disclaims legal Diokno, G.R.
liability on the ground that his life has been No.113630,
exposed to harm first before he committed the act May 5, 1994).
in defense of himself (Agpalo, p.241).
C. Administrative cases – Substantial
An accused, who claims justifying or exempting evidence (Rule 133, Sec. 5).
circumstance by way of defense, has the burden
of proof to establish such defense by clear and Note: In a petition for a writ of amparo, the
convincing evidence (Agpalo, p.241). parties shall establish their claims by substantial
evidence.
Under the Speedy Trial Act, if the accused is not
brought to trial within the time required, the Hierarchy of evidence
information shall be dismissed on the motion of 1. Proof beyond reasonable doubt;
the accused. In this case, the burden of proof of 2. Clear and convincing evidence;
supporting such motion is with the accused (Sec. 3. Preponderance of evidence;
13, R.A. No. 8493). 4. Substantial evidence.
Upon whom burden of evidence rests:

A. In Civil Cases: The plaintiff has to prove his Principle of negativing averments
affirmative allegations in the complaint and the General Rule: Negative allegations need not be
defendant has to prove the affirmative allegations proved, whether in a civil or criminal action.
in his counterclaim and his affirmative defenses.
B. In Criminal Cases: The prosecution has Exception: Where such negative allegations are
to prove its affirmative allegations in the essential parts of the cause of action or defense in
information regarding the elements of the crime a civil case, or are essential ingredients of the
as well as the attendant circumstances; while the offense in a criminal case or defenses thereto.
defense has to prove its affirmative allegations
regarding the existence of justifying or exempting However, in civil cases, even if the negative
circumstances, absolutory causes or mitigating allegation is an essential part of the cause of action
circumstances. or defense, such negative allegation does not have
to be proved if it is only for the purpose of denying
Degree of proof that satisfies the burden of the existence of a document which should properly
proof be in the custody of the adverse party.
A. Civil cases - Preponderance of evidence
(Rule 133, Sec. 1). In a criminal case, the rule is that if the subject of
B. Criminal cases the negative averment inheres in the offense as an
Issuance of essential ingredient thereof, the prosecution has
To Sustain Preliminary the burden of proving the same. In view, however,
Warrant of
Conviction Investigation of the difficult office of proving a negative
Arrest
Evidence of Engenders a Probable allegation, the prosecution, under such
guilt beyond well-founded cause, i.e. circumstance, need to do no more than make a
reasonable belief of the that there is prima facie case from the best evidence obtainable
doubt (Rule fact of the reasonable (People of the Philippines v. Quebral, G.R. No.
133, Sec. 2) commission of ground to 46094, September 27, 1939).
a crime (Rule believe that
112, Sec. 1) the accused Presumptions
has

A presumption is an assumption of fact resulting When opposing evidence comes into the case, the
from a rule of law which requires such fact to be presumption, having served its purpose, is no
assumed from another fact or group of facts found longer operative and the issue is determined on the
or otherwise established in the action ( evidence just as though no presumption had ever
existed. The effect of this rule is to continue the
It is an inference as to the existence or non- burden of persuasion on him who initially had the
existence of a fact which courts are permitted to benefit of the presumption. In other words, the
draw from the proof of other facts. presumption does not shift the burden.
Judicial Admissions Classification of presumptions

Presumptions
and Judicial Notice 1. Presumption of law (Praesumptiones
The proponent still has As a rule, the Juris): It is a deduction which the law expressly
to introduce evidence proponent need not directs to be made from particular facts.
of the basis of the introduce any 2. Presumption of fact (Praesumptiones
presumption. evidence. Hominis): It is a deduction which reason draws
from facts proved without an express direction
from the law to that effect.
Presumptions Inference
It is mandated by law A factual conclusion Presumptions of
Presumptions of Law
and establishes a that can rationally be Fact
legal relation between drawn from other Certain inference must Discretion is vested in
and among the facts. facts. It is one which be made whenever the tribunal as to
It is a conclusion results from a the facts appear which drawing the inference.
which a rule directs reasoning process. It furnish the basis of the
shall be made from need not have a legal inference.
proof of certain facts. effect because it is not Reduced to fixed rules Derived wholly and
mandated by law. and form a part of the directly from the
system of circumstances of the
Effect of legal presumption upon: jurisprudence. particular case by
Burden of Proof Burden of Evidence means of the common
experience of
It does not shift the mankind.
It creates a prima facie
burden of proof, which
case and thereby
remains where it is, Presumption juris or presumptions of law may
sustains the said
but by the be divided into:
burden of evidence on
presumption, the one 1. Conclusive presumptions (juris et de jure) —
the point which it
who has that burden is which is a presumption of law that is not
covers, shifting it to
relieved from the time permitted to be overcome by any proof to the
the other party. It
being, from contrary; and
relieves those favored
introducing evidence 2. Disputable presumptions (juris tantum) — is
thereby of the burden
in support of his that which the law permits to be overcome or
of proving the fact
averment because the contradicted by proofs to the contrary; otherwise,
presumed. (Francisco,
presumption stands in the same remains satisfactory.
p. 385)
the place of evidence.
Effect of a presumption: A party in whose favor
Note: Presumptions shift the burden of producing the legal presumption exists may rely on and
evidence with regard to the presumed fact. invoke such legal presumption to establish a fact in
BURSTING THE BUBBLE THEORY
issue. One need not introduce evidence to prove
Theory of Bursting Bubble or Thayerian Theory the fact for a presumption is prima facie proof of the
fact presumed.

Laches
Prima facie evidence (presumptive evidence) Failure or neglect for an unreasonable and
That which, standing alone unexplained or unexplained length of time, to do that which, by
uncontradicted, is sufficient to maintain the exercising due diligence, could or should have
proposition affirmed. been done earlier; it is negligence or omission to
assert a right within a reasonable length of time
Pyramiding presumption or inference warranting a presumption that the party entitled to
General Rule: A presumption cannot arise from the assert it either has abandoned or declined to
strength of another presumption. It must be based assert it (Tijam v. Sibonghanoy, 23 SCRA 29).
on facts.
2. Estoppel by deed (Rule 131, Sec. 2 [par. b]): the
Exception: An inference may be based on a fact tenant is not permitted to deny the title of his
which itself is based on an inference justifiable landlord at the time of the commencement of the
drawn from circumstantial evidence. relation of landlord and tenant between them.
SECTION 2. CONCLUSIVE PRESUMPTIONS Two points to remember:

1. Estoppel in pais (Rule 131, Sec. 2 [par. a]): a. Estoppel may attach even though the
whenever a party has, by his own declaration, act landlord does not have title at the
or omission, intentionally and deliberately led commencement of the relations.
another to believe a particular thing to be true and b. Estoppel may inure in favor of the
to act upon such belief, he cannot, in any successor.
litigation arising out of such declaration, act or
omission, be permitted to falsify it. Note: What a tenant is estopped from denying is
the title of his landlord at the time of the
Requisites as to the party to be estopped: commencement of the landlord-tenant
(CIK) relationship. If the title asserted is one that is
a. Conduct amounting to false representation alleged to have been acquired subsequent to the
or concealment; commencement of that relation, the presumption
b. Intent or at least expectation that the will not apply.
conduct shall be acted upon; and
c.Knowledge, actual or constructive of the real SECTION 3. DISPUTABLE PRESUMPTIONS
facts (Kalalo v. Luz, 34 SCRA 337). 1. Presumption of innocence: Applies to
both civil and criminal cases
Requisites as to the party claiming estoppel:
(LRA) a. In Criminal Cases: This presumption
a. Lack of knowledge of truth as to the facts in accompanies the accused throughout the trial
question; down to the moment of conviction. This
b. Reliance in good faith upon the conduct or presumption disappears after conviction and the
statements of the party to be estopped; appellate court then will presume the accused
c.Action or inaction based thereon to his guilty.
detriment or prejudice (Kalalo v. Luz, supra).
By reason of this presumption, an accused is
Through estoppel an admission or representation not called upon to offer evidence on his behalf
is rendered conclusive upon the person making it, for his freedom is forfeited only if the requisite
and cannot be denied or disproved as against the quantum of proof necessary for conviction be in
person relying thereon (Art. 1431, Civil Code). existence.
Estoppel is effective only as between the parties
thereto or their successors in interest (Art. 1439, The prosecution must rely on the strength of its
CC). own evidence, not on the weakness of the

defense (People vs. Mirantes, GR No. 92706, iv. Legitimacy;

May 21, 1992). v. Chastity;
vi. Presumption of good reputation
Basis: Founded on the principle of justice and vii. Presumption of good faith, fair dealing,
is intended not to protect the guilty but to honesty
prevent the conviction of an innocent person.
2. Presumption of unlawful intent: The
Equipoise Rule or Equiponderance Doctrine criminal act is itself the evidence of that intent.
Refers to a situation where the evidence of the
parties are evenly balanced or there is doubt on 3. Presumption that a person intends the
which side the evidence preponderates. In this ordinary consequences of his voluntary act: A
case, the decision should be against the party person is equally liable for all the consequences
with the burden of proof (Marubeni Corp. v. arising from his criminal act, and which are
Lirag, G.R. No. 130998, August 10, 2001). inherent therein – such complications as may
arise and which are not due to circumstances
Basis: Due process completely foreign to the act committed, or from
the fault or carelessness of the injured party (US
Presumption Reasonable Burden of vs. Monasterial, GR No. L-5098, October 29,
of Innocence Doubt Proof 1909)
Establishes Designed
the necessity merely as a
4. Presumption that a person takes
of the rule of
ordinary care of his concerns: Men do foolish
prosecution to Defines the procedure,
take the quality of confers only a things, make ridiculous contracts, use miserable
laboring of proof temporary judgment, and lose money; but not for that alone
and produce required` benefit can the law intervene and restore. There must be,
affirmative in addition, a violation of law, the commission of
evidence of what the law knows as an actionable wrong,
guilt before the courts are authorized to lay hold of the
The situation and remedy it (Vales v. Villa, G.R. No.
prosecution is 10028, December 16, 1916).
Engendered
compelled at
Substantive by an
the first Exception: When one of the parties is unable to
right and is a investigation
instance to read, or if the contract is in a language not
legal of the whole
make out a understood by him, and mistake or fraud is
inference proof and
prima facie alleged, the person enforcing the contract must
growing out of inability, after
case proving show that the terms thereof have been fully
the fact that such, to let
the essential explained to the former (Art. 1332, NCC).
persons the mind easy
facts
generally are on the
embraced in
not criminals certainty of
the criminal 5. Presumption of suppression of
guilt
transaction evidence: If it is shown that a person has
alleged attempted to falsify, fabricate, suppress or
destroy evidence, such may be justly construed
b. The presumption is applicable in civil as an indication of his consciousness that his
cases: case or defense lacks merit, or that the truth, if
i. Presumption of morality and decency; disclosed, would be detrimental to his interest.
ii. Presumption of validity of marriage;
iii. Presumption of dissolution of former Requisites:
marriage a. That the evidence is material;

b. That the party had the opportunity to Elements:

produce the same; and a. A crime has been committed
c.That the said evidence is available only to said b. The crime was committed recently
party. c.Accused was found in possession of stolen
goods
When presumption will not apply: d. Failure of the accused to explain his
a. When the suppression of evidence is not possession satisfactorily
willful;
b. When the evidence suppressed or withheld User of forged instrument is the forger: No
is merely corroborative or cumulative; presumption if possessor has the official duty to
c.When the evidence is at the disposal of both keep records which were forged
parties;
d. When the suppression is an exercise of Does not apply to one who has not profited from
privilege. the forged document
6. Money paid by one to another was due to

the latter 11. Person in possession of an order on
himself for the payment of the money, or the
7. A thing delivered by one to another delivery of anything, has paid the money or
belonged to the latter delivered the thing accordingly
8. Obligation delivered up to the debtor has 12. Presumption that a person in a public
been paid: See Arts. 1271, 1272 and 1176 of the office was regularly appointed or elected to it
NCC.
General Rule: Payment of debt not presumed Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
Exception: Lapse of a long period of time, appointment or election to office in all cases
customarily, 20 years accrual of debt. where it might be collaterally in issue.
Reason: Public policy The burden of proof is on the adverse party to

show that he was not appointed or designated.
9. Prior rents or installments had been paid

when a receipt for the later ones is produced 13. Presumption that an official duty has
been regularly performed (Presumption of
Regularity)
10. Presumption from possession of stolen
goods: This is not in conflict with the
presumption of innocence. At the start of the Ratio:
criminal case, the court will apply the
presumption of innocence. But once the a. Innocence and not wrongdoing is to be
prosecution is able to prove that a certain object presumed;
has been unlawfully taken, that there is a crime b. An official oath will not be violated;
of theft committed and that the prosecution has c.A republican form of government cannot
also proven that the accused is in possession of survive long unless a limit is placed upon
this object unlawfully taken, then the controversies and certain trust and confidence
presumption of innocence disappears. The new reposed in each governmental department or
presumption of guilt will now take place. agent at least to the extent of such
presumption.

The presumption of regularity and legality of 15. That all the matters within an issue raised in
official acts is applicable in criminal as well as in a case were laid before the court or
civil cases. arbitrator, and passed upon by it
Note: In writ of amparo cases, the presumption 16. Presumption that Private Transactions have
of regularity in the performance of official duty been done fairly and with regularity: An
may not be invoked by the respondent therein individual intends to do right rather than wrong
who is a public officer or employee (The Rule on and intends to do only what he has the right to
the Writ of Amparo, A.M. No. 07-9-12-SC). do.
Neither does the presumption apply in custodial

investigations. In the absence of proof to the contrary, there is
a presumption that all men act fairly, honestly
This presumption of authority is not confined to and in good faith.
official appointees. It has been extended to
persons who have been appointed pursuant to a 17. Presumption that the ordinary course of
local or special statute to act in quasi-public or business has been followed: Those who are
quasi-official capacities and to professional men engaged in a given trade or business are
– e.g. surgeons and attorneys. presumed to be acquainted with the general
customs and usages of the occupation and with
Omnia praesumuntur rite et solemniter esse acta such other facts as are necessarily incident to
donec probetur in contrarium – All things are the proper conduct of the business.
presumed to have been done regularly and with
due formality until the contrary is proved. 18. Sufficient consideration for a contract
While ordinarily, irregularity will not be
presumed, an adverse presumption may arise 19. That a negotiable instrument was indorsed
where the official act in question appears to be for sufficient consideration
irregular on its face.
14. Presumption of exercise of lawful 20. An indorsement of a negotiable instrument

jurisdiction: A court, or judge acting as such, was made before it was overdue and at the
whether in the Philippines or elsewhere, is place where dated
acting in a lawful exercise of jurisdiction.
21. A writing is truly dated
The court rendering the judgment is presumed
to have jurisdiction over the subject matter and
the parties and to have rendered a judgment 22. A letter duly directed and mailed was
valid in every respect. received in the regular course of mail: A
letter properly stamped, correctly addressed,
Jurisdiction is presumed in all cases, be it the and deposited in mail, is presumed to have
superior or inferior court. However, jurisdiction been received by the addressee.
to render a judgment in a particular case or Basis: The post office is a public office with
against a particular case or against particular duty of transmitting mail.
persons may not be presumed where the record
itself shows that jurisdiction has not been
acquired or where there is something in the 23. Presumption of death, absence of:
record showing the absence of jurisdiction. a. 7 years – considered dead except for
purposes of succession.

For purposes of succession, absence of: Failure to speak to an accusation of complicity

b. 10 years – considered dead for purposes of raises presumption of acquiescence in the
succession accusation, subject to principle of admission by
c.5 years, after the age of 75 – considered dead silence.
for the purposes of succession
d. 4 years – considered dead for all purposes, 25. Things have happened according to the
including the division of the estate ordinary course of nature and the ordinary
(extraordinary circumstances): habits of life
i. A person on board a lost vessel or aircraft;
ii. Member of armed forces who has taken part
in armed hostilities; 26. Persons acting as co-partners have
iii. Who has been in danger of death under entered into a contract of co-partnership
other circumstances;
27. A man and a woman deporting
For purposes of contracting subsequent themselves as husband and wife has entered
marriage, absence of: into a contract of marriage: If cohabits,
e. 4 years - If there has been a well-founded
presumed married. Cohabitation and reputation
belief that the absent spouse is already dead must concur for the presumption.
f. 2 years – if disappearance is attended with
danger of death in the extraordinary
circumstances above 28. That property acquired by a man and
woman living with each other without benefit
Note: Before marrying again, the spouse present or marriage, but capacitated to marry each
must institute a summary proceedings as other, or under a void marriage, has been
provided in the Family Code and in the rules for obtained by their joint efforts, work or
declaration of presumptive death of the industry
absentee, without prejudice to the effect of
reappearance of the absent spouse.
29. In cases of cohabitation by a man and
If conditions above are not present, rule on woman not capacitated to marry each other,
preponderance of evidence applies to and who have acquired property through
establish the fact of death. Also, presumption of their actual joint contribution, such
death must yield to preponderance of evidence contribution and their corresponding shares,
of death, without waiting for the above periods to are equal
expire.
30. Presumption on conception of child:
For purposes of settlement proceedings, a Rule does not presume legitimacy; presumes
person is presumed dead if absent and unheard only as to what marriage the child has been
from for the periods in the NCC. If such person conceived
proves to be alive, he is entitled to the balance of
the estate after debt payments. recoverable by
motion in the same proceeding (Sec 4 Rule 73). Dissolution of 1st Marriage
Such presumption can be invoked in an action or 300 days (10 mos.)

a special proceeding, but there can be no
independent action or special proceeding for Solemnization of 2nd Marriage
presumption of death. 180 days (6 mos.)
24. Acquiescence resulted from a belief that Z X Y

the thing was conformable to law or fact:

published, contains correct reports of such

X – Conceived under the 1 marriagest
cases
Y – Conceived under the 2nd marriage
Z – Conceived under the 2nd marriage 35. That a trustee or other person whose
duty it was to convey real property to a
Child to be of the 1st marriage: particular person has actually conveyed it to
a. Mother remarried within 300 days from him when such presumption is necessary to
termination of 1st marriage; perfect the title of such person or his
b. Child born within the same 300 days; successor in interest
c.Child born BEFORE 180 DAYS from
solemnization of 1st marriage.
Requisites:
nd
Child to be of the 2 marriage: a. It is the duty of trustee to convey;
a. Mother remarried within 300 days; b. There is sufficient reason to justify the
b. Child born within the same 300 days; presumption;
c.Child born after 180 days from solemnization c.Object of presumption is to support title;
of 2nd marriage. d. Case must be clear such that a court, if
called upon, would decree a reconveyance.
Legitimate children:
a. If conceived and born during marriage; 36. Presumption of survivorship, except for
b. If conceived before marriage but born the purpose of succession:
during marriage; a. <15 yo vs. <15 yo - the older
c.If conceived during marriage but born after b. >60 yo vs. >60 yo - the younger
c.<15 yo vs. >60 yo - the younger
31. A thing once proved continues to exist d. >15 yo vs. <60 yo - male if different sexes;
as long as is usual with things of that nature. if the same, the older
e. <15 yo OR >60 yo vs. >15 yo AND <60 yo –
Examples: the >15 yo AND <60 yo
a. Presumption of continuity of mental capacity
or capacity to act, if not previously declared 37. In case of doubt in succession, whoever
incapable, until the contrary is proven that he is alleges the death of one prior to the other
incapacitated, insane; shall prove the same; in the absence of
b. Presumption of continuity of possession proof, they shall be considered to have died
during the intervening period; at the same time
c. Presumption of continuity of facts. However,
presumption cannot prevail over positive SECTION 4. NO PRESUMPTION OF
testimony of witnesses LEGITIMACY OR ILLEGITIMACY
There is no presumption of legitimacy or
32. That the law has been obeyed illegitimacy of a child born after 300 days following
the dissolution of the marriage or the separation of
33. That a printed or published book, the spouses. Whoever alleges the legitimacy or
purporting to be printed or published by illegitimacy of such child must prove his allegation.
public authority, was so printed or published
Under the Rules on DNA Evidence:
1. DNA results that exclude the putative
34. That a printed or published book, parent from paternity shall be conclusive proof of
purporting contain reports of cases adjudged non-paternity;
in tribunals of the country where the book is

2. If the value of the Probability of Paternity is A solemn and formal declaration or assertion that
less than 99.9%, the results of the DNA testing the witness will tell the truth, this being substituted
shall be considered as corroborative evidence; for an oath in certain cases (Francisco, p.154).
3. If equivalent to 99.9% or higher, there
shall be a disputable presumption of paternity. Oath Affirmation
An outward pledge Substitute for an oath
RULE 132 made under an and is a solemn and a
immediate sense of formal declaration that
P RESENT AT ION OF E VIDENCE responsibility to God the witness will tell the
or a solemn appeal to truth
A. Examination of Witnesses the Supreme Being in
attestation of the truth
SECTION 1. EXAMINATION TO BE DONE IN of some statement
OPEN COURT
Two-fold object in requiring a witness to be
Witnesses sworn:
Those who testify in a case or give evidence before 1. By affecting the conscience of the witness
a judicial tribunal (Francisco, vol. 2, p.153). to compel him to speak the truth;
2. If he willfully falsifies that truth, that he may
How testimonies given: it is usually given orally, be punished for his perjury.
in open court.
The right to have the witness sworn may be
Note: The general rule under this provision that the waived, if a party fails to object to the taking of the
testimonies of witnesses cannot be presented in testimony of a witness without the administration of
affidavits no longer applies, in view of the Judicial an oath, he will be deemed to have waived his
Affidavit Rule. objection.
Exceptions: Questions propounded to a witness must:

a. If the question calls for a different mode of 1. Be relevant;
answer (e.g., demonstration) 2. Not be indefinite or uncertain;
b. When the testimonies of witnesses may be 3. Not be argumentative;
given in affidavits is under the Rules on Summary 4. Not call for conclusion of law;
Procedure. 5. Not call for opinion or hearsay evidence;
c.Depositions (Riano, 2009). 6. Not call for illegal answer;
d. Examination of a Child Witness, or Victim. 7. Not call for self-incriminating testimony;
Through the use of live link television, the judge 8. Not be leading;
may question the child in chambers or in some 9. Not be misleading;
other comfortable place other than the courtroom, 10. Not tend to degrade reputation of witness;
in the presence of the support person, guardian 11. Not be repetitious; and
ad litem, prosecutor and counsel for the parties. 12. Not call for a narration.
Improper questions:
Purpose: To enable the court to judge the 1. Misleading – that cannot be answered
credibility of the witness by the witness’ manner of without making an unintended admission
testifying, their intelligence and their appearance. 2. Compound – that which requires a single
answer to more than one question
General Rule: Testimony of witnesses shall be 3. Argumentative – a leading question that
given under oath or affirmation. also reflects examiner’s interpretation of the facts
Affirmation

4. Assuming facts not in evidence – Rights of a witness (PORDI)

assumes that a disputed fact is true although it 1. To be protected from irrelevant, improper, or
has not yet been established in the case insulting questions, and from harsh or insulting
5. Conclusionary – that which calls for an demeanor;
opinion or conclusion that the witness is not 2. Not to be detained longer than the interests of
qualified or permitted to make justice require;
6. Harassing/Embarrassing – judge has the 3. Not to be examined except only as to matters
discretion to disallow questioning that is unduly pertinent to the issue;
embarrassing 4. Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
Conditional examination of witnesses in provided by law; and
criminal cases 5. Not to give an answer which will tend to degrade
1. With respect to a prosecution witness, the his reputation, unless it be to the very fact at
conditional examination takes place where the issue or to a fact from which the fact at issue
case is pending (Sec. 15, Rule 119). would be presumed. But a witness must answer
2. In case of defense witness, it can be before to the fact of his previous final conviction for an
another judge, a member of the IBP when offense.
designated by the court, or before an inferior
court if designated by a superior court (Secs. 12- Witnesses should be protected from questions
13, Rule 119). which are “irrelevant” “insulting” and
“improper” and from harsh and insulting
SECTION 2. PROCEEDINGS TO BE RECORDED behavior:
Note: Stenographic notes as recorded by the Right of a witness to be free from personal
stenographer are presumed prima facie correct. violence: The action of the judge in seizing the
witness by the shoulder and turning him about (to
SECTION 3. RIGHTS AND OBLIGATIONS OF A look to the judge) was unwarranted and an
WITNESS interference with that freedom from unlawful
personal violence to which every witness is entitled
Obligation of a witness: A witness must answer while giving the testimony in court, which his
questions, although his answer may tend to attorney had the right to protest and to demand that
establish a claim against him. Refusal of a witness the incident be made of record (In Re: Aguas,
to answer is punishable by Contempt under Rule August 8, 1901).
71.
Examination of witness by trial judge: Judges
Answers tending to establish a claim: Self- must not only be impartial, but must also appear to
incrimination relates to criminal proceedings only, be impartial. However, this is not to say that judges
not to a civil action, or to evidence that may be must remain passive or silent during the
used against the witness in such action, or to proceedings. A judge should properly intervene in
questions of property or business (Francisco, the presentation of evidence to expedite and
1997). prevent unnecessary waste of time.
Note: A witness is bound to answer even if the It is the judge’s prerogative and duty to ask
same may tend to establish a claim against himself. clarificatory questions to ferret out the truth.
It is not proper to invoke the right against self-
incrimination as this may only by invoked in cases What is proscribed is undue interference by
of criminal liability. “Although it may establish a propounding questions to the witnesses which will
claim against him” refers to a cause of action for a have the effect of or will tend to build or bolster the
civil claim and should not be confused with the right case for one of the parties (Agpalo,p.311).
against self-incrimination. (Herrera, p. 165)

General Rule: Witness should not be compelled to Right against self-incrimination is granted only in
give an answer which will tend to subject him to a favor of individuals.
penalty or offense (Right against self-incrimination
of witness). Corporations are creatures of the State and
1. No person shall be compelled to be a legislatures reserve a right to investigate such
witness against himself; organizations to ensure that they have not
2. The rule may be invoked in any court or exceeded their powers, even by demanding self-
proceedings; and incriminating information (BASECO v. PCGG, G.R.
3. The rule only covers testimonial compulsion No. 75885, May 27, 1987)
and production by him of incriminating documents
and articles. Extends to any civil, criminal or administrative
proceedings, and in congressional investigations; it
The right against self-incrimination is a protection is accorded to every person who gives evidence,
against testimonial compulsion. It prohibits the use whether voluntarily or under compulsion of
of physical or moral compulsion to extort subpoena
communications from the accused, not an
exclusion of his body as evidence (Agpalo, p.290). Examples of acts not covered by the privilege:
a. Woman accused of adultery was ordered to
Rationale against testimonial compulsion: The submit her body for exam of competent doctors to
court may not extract from the defendant’s own lips determine whether she is pregnant or not, without
and against his will an admission of his guilt. the use of torture or force (Villaflor v.Summers,
G.R. No. 16444, September 8, 1920).
When an act is testimonial: If it explicitly or b. Where a person accused of acts of lasciviousnes
implicitly relates a factual assertion or discloses s against a girl, who was consequently infected
information. with gonorrhea, was stripped of his clothing and
from his body was taken a portion of a substance
When compulsion is present: It is present only if which revealed that he was suffering from
a witness has asserted a right to refuse to disclose gonorrhea (United States v. Tan Teng, G.R. No.
self-incriminating information and this refusal has 7081, September 7, 1912).
been overridden. c. Accused was forced to discharge morphine from
his mouth and used as evidence against him.
Privilege extends to production of inculpatory d. Accused was required to put on a pair of pants to
documents. determine whether they fitted him.
e. Admission as to marks and scars found upon the
Extends to any “evidence communicative in nature” person of the defendant during the investigation
acquired under circumstances of duress such as in order to identify him.
forced re-enactment, or compelling the accused to f. Forcing an accused to remove his shoes for the
give specimens of his handwriting (Beltran v. purpose of comparing them with the tracks.
Samson, G.R. No. 32025, September 23, 1929). g. Coercing the accused to place his foot over a
footprint for purpose of comparison.
Includes not only the right to remain silent, but also h. Taking blood sample from the accused charged
the right not to suffer penalty by reason of such of homicide thru reckless imprudence while
silence unconscious for purposes of blood test
The witness is not, however, the sole judge as to Test: Whether the proposed evidence was that of
whether his answers, if given, will tend to show that the accused or whether it was evidence in itself
he is guilty of a crime. The determination of this unaided by any statement of the latter
question is for the trial judge (Francisco, p.207).

Right against Self-Incrimination of the accused punish “a violation of duty or a public wrong and to
as distinguished from that of an ordinary deter others from offending in a like manner...”
witness However, when the loss of privilege is not imposed
Accused Ordinary Witness as a penalty the witness cannot invoke his
Cannot be compelled May be compelled to constitutional right (Cabal v. Kapunan, G.R. No. L-
to testify or produce testify by subpoena, 19052, December 29, 1962).
evidence in the having only the right to
criminal case in which refuse to answer a For instance, a lawyer may not refuse to give an
he is the accused or particular incriminating answer which may subject him to disbarment
one of the accused, he question at the time it proceedings, because a lawyer’s disbarment is not
cannot be compelled is put to him. a penalty but a disciplinary measure.
to do so even by
subpoena or other Exception to witness’s right to self-
process or order of incrimination: Unless otherwise provided by law
the court. He cannot (E.g., Immunity statutes).
be required either for
the prosecution, for Classification of immunity statutes
co-accused or even 1. Use immunity: Only prohibits the use of
for himself. witness’ compelled testimony and its fruit in any
If the witness is A witness who has manner in connection with the criminal
accused, he may been summoned to prosecution of the witness. It does not render a
totally refuse to take testify cannot decline witness immune from prosecution.
the stand. to appear, nor can he 2. Transactional immunity: grants immunity
decline to be sworn as to the witness from prosecution for an offense to
a witness, until a which his compelled testimony relates.
question calling for an
incriminating answer is Limitation if a witness is a party in a civil action:
asked. At that time, Before the plaintiff could compel the defendant to
and generally at that be a witness, the plaintiff must first prove that he
time only, can the has submitted written interrogatories to the
claim of privilege defendant (Rule 25, Sec.6).
maybe interposed.
Summary of scope of right against self-
Waiver of witness-accused: The accused, by incrimination
offering himself as a witness to disprove the charge a. A clause exempting a person from being a
waives his privilege as to all relevant facts witness against himself prohibits as well a
connected with the offense, except those facts that witness as a party accused in the cause; that is, it
merely affect his credibility. He may decline to is immaterial whether the prosecution is then and
answer any question which might implicate him for there against himself or not; so also a clause
a different offense. If the witness discloses part of a exempting the accused protects equally a mere
transaction in which he was criminally concerned, witness.
he cannot hold back the rest. His waiver is not b. A clause exempting from self-incriminating
partial. testimony in criminal cases protects equally in
civil cases when the fact asked for is a criminal
“Penalty” in right against self-incrimination one.
includes forfeiture of property: Hence, said c.The protection extends to all manner of
constitutional provision applies whenever the proceedings in which testimony is to be taken,
proceeding is not “purely remedial” or intended “as whether litigious or not, and whether ex parte or
a redress for a private grievance,” but primarily to otherwise.

Right against self-degradation 4. His testimony can be substantially

corroborated on its material points;
Discretionary control of degrading cross- 5. He does not appear to be the most guilty; and
examination: A witness may be cross-examined 6. He has not, at any time, been convicted of any
as to specific facts which, although collateral to the crime involving moral turpitude (Sec. 10).
issue, tend to discredit the witness by impeaching
his moral character if the court concludes that there Sworn Statement: Before any person is admitted
is reason to believe that such examination will into the program he shall execute a sworn
further the ends of justice; but such examination will statement describing in detail the manner the
not be allowed where it is unjust to the witness or offense was committed and his participation therein
uncalled for by the ci (Sec. 11).
CIrcumstances of the case. If his application is denied, said sworn statement

and other testimony given in support of said
application shall not be admissible in evidence.
WIT NESS P ROT ECT ION , S ECURIT Y Admission into the program shall entitle such state
AND B ENEFIT ACT witness to immunity from criminal prosecution for
R.A. NO . 6981 the offenses in which his testimony will be given
and used (Sec. 12).
NT COD Failure without just cause of the witness to testify
Who may be admitted? (Sec. 3): Any person who when lawfully obliged to do so, shall be cause for
has witnessed or has knowledge or information on his prosecution for contempt. If he testifies falsely
the commission of a crime and has testified or is or evasively, he shall be liable for perjury. His
testifying or about to testify before any judicial or immunity shall be removed and he shall be subject
quasi-judicial body, or before any investigating to criminal prosecution (Sec.13).
authority, may be admitted into the program
Provided, that: SECTION 4. ORDER IN THE EXAMINATION OF
1. The offense in which his testimony will be AN INDIVIDUAL WITNESS
used is a grave felony as defined under the RPC 1. Direct examination;
or its equivalent under special laws; 2. Cross-examination;
2. His testimony can be substantially 3. Redirect examination; and
corroborated in its material points; 4. Re-cross examination.
3. He or any member of his family within the
second degree of consanguinity or affinity is The order is optional in the sense that the parties
subjected to threats to his life or bodily injury; are not required to avail of all the examination
4. He is not a law enforcement officer. provided under the rules.
State Witness SECTION 5. DIRECT EXAMINATION

A person who has participated in the commission of
a crime and desires to be a witness for the state Direct Examination
shall be admitted into the program whenever the The examination-in-chief of a witness by the party
following circumstances are present: presenting him on the facts relevant to the issue.
1. The offense in which his testimony will be used is
a grave felony as defined under the RPC or its Purpose: to elicit facts about the client’s cause of
equivalent under special laws; action or defense (Riano, 2009).
2. Absolute necessity for his testimony;
3. There is no direct evidence available for the Form of questioning: Limited to questions calling
proper prosecution of the offense committed; for specific responses by witnesses. Testimony in

narrative form is not permitted because it is difficult Doctrine of Incomplete Testimony

to determine whether specific portions of the When cross-examination cannot be done or
testimony might be objectionable before uttered. completed due to causes attributable to the party
The remedy here will be a motion to strike. who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
Exceptions: from the record.
1. Witness is his own counsel;
2. When allowed by the court Except where the prosecution witness was
extensively cross-examined on the material points
SECTION 6. CROSS- EXAMINATION and thereafter failed to appear and cannot be
produced despite a warrant for his arrest (People of
Cross-Examination: The most reliable and the Philippines v. Gorospe, G.R. No. 51513, May
effective way known of testing the credibility and 15, 1984).
accuracy of testimony.
When to strike out for lack of cross-
Purposes of cross-examination: examination: It depends on who is at fault.
1. To discredit the witness; 1. If it is the party presenting the witness who
2. To discredit the testimony of the witness; is at fault, then the direct examination can be
3. To clarify certain matters; and expunged.
4. To elicit admissions from a witness. 2. If the inability to cross-examine was
attributable to the adverse party (cross-
Scope or limits of cross-examination: The examiner), then there can be no forfeiture of the
witness may be cross-examined by the adverse direct testimony.
party as to any matters stated in the direct
examination, or connected therewith. Effect of death or absence of a witness: If a
1. English Rule: where a witness is called to testify witness dies before his cross-examination, his
to a particular fact, he becomes a witness for all testimony on the direct may be stricken out only
purposes and may be fully cross-examined upon with respect to the testimony not covered by the
all matters material to the issue, the examination cross-examination. The absence of the witness is
not being confined to the matters inquired about not enough to warrant striking out his testimony for
in the direct examination. failure to appear for further cross-examination
2. American Rule: restricts cross-examination to where he has already been sufficiently cross
facts and circumstances which are connected examined, and the matter on which cross-
with the matters that have been stated in the examination is sought is not in controversy.
direct examination of the witness.
General Rule:A party who voluntarily offers the
Under Philippine jurisdiction, we follow the two testimony of a witness in the case is bound by the
rules, specifically under the following instances: testimony of said witness.
In general, we follow the English Rule, which Exceptions: A party is not bound when calling the
allows the cross-examination to elicit all important following:
facts bearing upon the issue (Sec. 6), but this does 1. Adverse party;
not mean that a party by doing so is making the 2. Hostile witness;
witness his own in accordance with Section 5. 3. Unwilling witness; and
4. Witness required by law to be presented.
We follow the American Rule as to the accused
or a hostile witness, who may only be cross- Hostile Witness: A witness may be considered as
examined on matters covered by direct unwilling or hostile only if so declared by the court
examination. upon adequate showing of:
1. His adverse interest;

2. Unjustified reluctance to testify; or examination of the witness and also on such other
3. His having misled the party into calling him matters as may be allowed by the court in its
to the witness stand discretion.
Cross-examination as to bias and prejudice: SECTION 9. RECALLING WITNESS

Questions impeaching the impartiality of witnesses, General Rule: After the examination of a witness
while not directly relevant to the issue on trial, are by both sides has been concluded, the witness
relevant in the sense that the persuasive quality of cannot be recalled without leave of court.
the proof is affected by the discrediting testimony. It
may thus be shown that the witness is hostile, and Ratio: A witness cannot be detained longer than
the latter can be questioned as to motives, bias, the interest of justice requires.
interest, conduct, state of feelings, relations to the
parties, and the like. Exception: Recall has been expressly reserved
with the approval of the court.
SECTION 7. RE-DIRECT EXAMINATION
While under the strict rules of practice, impeaching
Scope: It is a matter of right, but the time at which questions should be propounded to a witness
it may be had is discretionary on the court. before he has left the stand, it is generally held
permissible to recall a witness who has left the
Principal object: to prevent injustice to the witness stand for the purpose of impeachment or to lay a
and the party who has called him by affording an foundation therefor.
opportunity to the witness to explain or amplify the
testimony which he has given on cross-examination SECTION 10. LEADING AND MISLEADING
or to explain any apparent contradiction or QUESTIONS
inconsistency in his statements, an opportunity
which is not ordinarily afforded him during his Leading Questions
cross-examination. Those which suggest to the witness the answer
which the examining party desires. It is generally
The witness may be allowed to reaffirm or explain not allowed.
his statements, their meaning or import and to
minimize or destroy discrediting tendencies. The test whether a question is leading or not is the
suggestiveness of its substance (Francisco,1997).
Note: If in the exercise of discretion, the court
admits matters not dealt with during the cross- Exceptions: (PACHI)
examination or if explanation of the answers given 1. On cross-examination;
is necessary, the court may permit a re-cross 2. On preliminary matters;
examination. 3. When there is difficulty in getting direct and
intelligible answers from a witness who is
SECTION 8. RE-CROSS EXAMINATION ignorant, or a child of tender years, or is of feeble
mind;
Purpose: to overcome the other party’s attempt to 4. Unwilling or hostile witness; or
rehabilitate a witness or to rebut damaging 5. Witness is an adverse party or an officer,
evidence brought out on cross-examination. director, or managing agent of a public or private
corporation or of a partnership or association
Note: It is not a matter of right on re-cross which is an adverse party.
examination for counsel to touch on matters not
brought on the re-direct examination of the witness. Note: Leading questions are not appropriate in
direct and re-direct examinations particularly when
Re-cross examination of the witness is limited to the witness is asked to testify about a major
new matters brought out on the re-direct element of the cause of action or defense. Leading

questions are allowed in cross and re-cross SECTION 11. IMPEACHMENT OF ADVERSE
examinations (Riano, 2009). PARTY’S WITNESS
To impeach a witness means to discredit the
Reason for allowing leading questions on witness’s testimony. It is a fundamental right on
cross-examination: The witness is not the cross- cross-examination. Since the witness’s credibility is
examining party’s witness. He is expected to be always in issue, it is never beyond the permissible
adverse or hostile to the cross-examiner. He is not scope of cross-examination (Gilbert, Evidence,
expected to cooperate. Sec. 991).
For exceptions Nos. 3 and 4: The party producing Ways of impeaching adverse party’s witness:
the said witnesses may interrogate him by leading 1. By contradictory evidence;
questions and contradict him in all respects as if he 2. By evidence that the general reputation for truth,
had been called by the adverse party. There is no honesty, or integrity of the witness is bad; or
need of a preliminary showing of hostility before 3. By prior inconsistent statements (Sec. 11).
leading questions can be asked.
Contradictory Prior Inconsistent
Misleading Question Evidence Statements
One which assumes as true a fact not yet testified It refers to other It refers to statements,
to by the witness, or contrary to that which he has testimony of the same oral or documentary,
previously stated. It is not allowed. witness, or other made by the witness
evidence presented by sought to be
Exceptions: him in the same case, impeached on
1. When waived; but not the testimony occasions other than
2. Asking hypothetical questions to an expert of another witness. the trial in which he is
witness. testifying.
Only one counsel should be allowed to examine a Other modes of impeachment aside from Sec.
witness in a single stage. However, the other 11
counsel may make objection to the testimony. 1. By involving him during cross examination
in contradiction;
Ratio: 2. By showing the impossibility or improbability
1. To protect the witness from undue and of his testimony;
confusing interrogation; and 3. By proving action or conduct of the witness
2. To secure system and brevity by giving the inconsistent with his testimony;
control of the interrogation to a single hand. 4. By showing bias, interest or hostile feeling
against the adverse party.
When is a question preliminary? When the
question does not touch on any issue. Note: The impeachment is limited to bad reputation
and the bad reputation must be for lack of veracity
A question that merely suggests a subject without and does not extend to bad reputation for lack of
suggesting an answer or a specific thing is not a morals (e.g. A witness may be discredited because
leading question. he is a well-known liar but not if he is a well-known
sex addict).
Example: “State whether anything occurred
between you and the defendants on the evening of Not every aspect of a person’s reputation may be
January 9, 2003.” the subject of impeachment. Evidence of bad
reputation for the purpose of impeachment should
refer only to the following specific aspects: a) for
truth; b) for honesty; or c) for integrity (Riano,
2009).

Prior convictions: The theory here is that the Ratio: Without the exception, the party calling the
credibility of the witness is affected by his having witness will be at the mercy of a treacherous
been convicted of a crime. It does not matter if the witness.
crime is serious or a light or minor offense
(Bautista, 2007). SECTION 13. HOW WITNESS IMPEACHED BY
EVIDENCE OF INCONSISTENT STATEMENTS
Rehabilitation of witnesses: When the cross-
examiner has attempted to impeach a witness, the Requisites:
party who called the witness is allowed on redirect 1. Prior statement of witness must be
to attempt to “rehabilitate” (to restore the witness’ materially inconsistent with his testimony
credibility). It must appear, however, that the 2. Such inconsistent statement must have a
witness’ credibility has been attacked. Unless reasonable tendency to discredit the testimony on
credibility is attacked, there is nothing to a material fact
rehabilitate. 3. To impeach by extrinsic proof of prior
inconsistent statements, such must have as their
The fact that a witness has been impeached does subject
not mean her testimony will be stricken or a. Facts relevant to the issue of the case
disregarded. b. Facts which are themselves provable by
extrinsic evidence to discredit the witness
SECTION 12. PARTY MAY NOT IMPEACH HIS
OWN WITNESS Note: Statements to be contradicted must be
General Rule: A party is not allowed to impeach related to material facts and tend to disprove the
his/her own witnesses. case of the party by whom the witness is called.
Ratio: By calling a witness, the party certifies his The Process of Impeachment
credibility.
Different stages:
Exceptions (CHAR): 1. The facts discrediting the witness or his
1. Witness required by law; testimony may be elicited from the witness
In the probate of a will, if the will is contested, the himself upon cross-examination;
law requires that the proponent should present all 2. The facts discrediting the witness are
the attesting witnesses to the will if they are still proved by extrinsic evidence i.e., the adverse
alive. If any or all of them testify against the due party in rebuttal proves by another witness or
execution of the will or do not remember having documentary evidence the facts discrediting the
attested to it or are otherwise of doubtful testimony of the witness under attack.
credibility, the proponent can start impeaching
these witnesses. The process of cross-examining a witness upon the
2. Witness is an adverse party; point of prior contradictory statements is called in
3. Civil cases only; not applicable in criminal the practice of the American courts “laying the
cases because of privilege against self- predicate” for the introduction of contradictory
incrimination statements. It is almost universally accepted that
4. Witness is an unwilling or hostile witness. unless a ground is thus laid upon cross-
examination, evidence of contradictory statements
Mere relationship to one of the parties does not are not admissible to impeach a witness.
make one a hostile witness. There must be
showing of (UMA) (a) adverse interest; (b) Before a witness can be impeached by evidence
unjustifiable reluctance to testify; and (c) such that he has made at other times statements
witness misled the party from calling him to the inconsistent with his present testimony, it is
witness stand. necessary that a foundation should have been laid

by calling the attention of the witnesses to the It refers only to It refers to a situation
former statements so as to give him opportunity to impeachment of a where evidence which
explain before the statements were offered in witness through prior is otherwise
evidence. If the statements be in writing they must inconsistent incompetent will be
be shown to the witness before any question is put statements. introduced in evidence
to him concerning them. because it falls under
the exceptions to the
Thus, for instance, if the attorney for the accused rule on exclusion. (e.g.
had information that a certain witness had made Under the best
and signed a sworn statement before the fiscal evidence rule, if a
materially different from that given in his testimony party desires to
before the court, the attorney in cross-examining introduce secondary
the witness should direct his attention to the evidence, he must first
discrepancy and ask him if he did or did not make a prove that the writing
statement delivered in court (People of the was duly executed
Philippines v. Badilla, G.R. No. L-23792, February and that the original
17, 1926). has been lost or
destroyed. Without
A witness is impeached by prior inconsistent first laying the
statements by “laying the predicate,” i.e.: foundation, secondary
1. By confronting him with such statements, evidence will not be
with the time, place, and circumstances under admitted by the court.)
which they were made
2. If the witness admits the making of such Ratio for laying the predicate:
contradictory statements, the accused has the 1. To avoid unfair surprise to the adversary;
benefit of the admission, while the witness has 2. To save time, as an admission by the
the opportunity to explain the discrepancy, if he witness may make the extrinsic proof
can. unnecessary; and
3. If the witness denies, the accused has the 3. To give the witness, in fairness to him, a
right to prove that the witness did not make such chance to explain the discrepancy.
a statement.
The mere presentation of the prior declarations of
Note: The rule applies to out-of-court statements. the witness without the same having been read to
him while testifying in court is insufficient for the
The rule that the attention of the witness be desired impeachment of his testimony if he was not
called to the time, place and circumstances, given the ample opportunity to explain the
does not apply where: supposed discrepancy (Riano, p.327).
a. The statement is made in court
b. The impeaching evidence is in writing. The writing Effect of witness’ denial of making statement: If
must be shown to the witness so that he may the witness denies making the prior statement or
read it or it may be read to him. He must be says that he does not remember making it, the
asked if he wrote it or signed it and if he admits adverse party should call in rebuttal a witness to
this, his attention must be called to the prove that such statement has in fact been made
inconsistencies. (Herrera, Vol. VI, p. 233).
Laying the Prior contradictory statement of a witness which is

Laying the Predicate
Foundation or Basis admissible as independent evidence may be shown
without laying the predicate (e.g. Where said
testimony contains admission against interest. The
admission is presented as original or independent

evidence. This must be offered in evidence-in-chief unless liable to be influenced by the testimony of
and not on rebuttal). the other witnesses
SECTION 14. EVIDENCE OF GOOD

CHARACTER OF WITNESS
Not admissible except when such character has SECTION 16. WHEN WITNESS MAY REFER TO
been impeached. MEMORANDUM
Permitting a witness to aid himself during his
testimony with written memoranda is a concession
SECTION 15. EXCLUSION AND SEPARATION to the frailty of human memory (Bautista, p.118).
OF WITNESS
Present Memory Past Recollection
The rule does not apply to parties in civil cases, nor
Revived Recorded
to the accused in criminal cases, one of his rights
being to be present during the trial (Agpalo, p.327). Memory is obscure but There is no
there is still memory. recollection
Placing witnesses under the Rule: On any trial or whatsoever.
hearing, the judge upon motion may exclude from The main evidence is The main evidence is
the court any witness not at the time under the testimony of the the memorandum.
examination, so that he may not hear the testimony witness.
of other witnesses. The judge may also cause The witness simply Witness must swear
witnesses to be kept separate and to be prevented testifies that he knows that the writing
from conversing with one another until all shall that the memorandum correctly states the
have been examined. is correctly written by transaction.
him or under his
Purpose: So that the testimony of a witness shall direction; no need to
not be influenced by the statements of other swear.
witnesses.
Present memory revived or revival of present
Where a witness remains in court notwithstanding memory: A witness may be allowed to refresh his
the order excluding him therefrom, such fact may memory respecting a fact, by anything written or
not disqualify him from being a witness but it may recorded by himself or under his direction at the
affect his credibility (Agpalo, p.327). time when the fact occurred, or immediately
thereafter, or later so long as the fact was fresh in
Persons not subject to the rule: his memory and he knew that it was correctly
1. An accused in a criminal case as it is his recorded.
constitutional right to be present at all stages of
the proceedings; Note: The evidence is still testimonial in character.
2. Parties to the litigation will generally not be The memorandum will not be considered as
excluded, their presence usually being necessary documentary evidence.
to a proper management of the case;
3. Party in interest though not a party to the record Past recollection recorded or revival of past
and an agent of such party, if the presence of recollection: A witness may also testify from such
such agent is necessary; writing or record, though he retains no recollection
4. Officers and complaining witness are customarily of the particular facts, if he is able to swear that the
excepted from the rule unless the circumstances writing or record correctly stated the transaction
warrant otherwise; when made, but such evidence must be received
5. Expert witnesses are not excluded until with caution.
production of evidence bearing upon the question
or subject as to which they have been called or Note: Since there is complete loss of recollection or
memory on the part of the witness, then it is the

memorandum itself that will serve as evidence. It face from the one executed (Francisco, vol.2,
will now be considered as documentary evidence. p.336)
The memorandum from which the witness may be Document

permitted to refresh his memory need not be an A deed, instrument or other duly authorized paper
original writing. It is sufficient if it is shown that by which something is proved, evidenced or set
the witness knows the copy to be a true one, and forth.
his memory refreshed thereby enables him to
testify from his own recollection of the facts, SECTION 19. CLASSES OF DOCUMENTS
independent of his confidence in the accuracy of For the purpose of their presentation in evidence,
the copy. documents are either public or private.
SECTION 17. WHEN PART OF TRANSACTION, Public documents are:

WRITING OR RECORD GIVEN IN EVIDENCE, 1. The written official acts, or records of the official
THE REMAINDER ADMISSIBLE acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Rule of completeness/ rule of indivisibility Philippines, or of a foreign country;
1. When part of an act, declaration, 2. Documents acknowledged before a notary public
conversation, writing or record is given in except last wills and testaments; and
evidence by one party, the whole of the same 3. Public records, kept in the Philippines, or private
subject may be inquired into by the other; and documents required by law to be entered therein.
2. When a detached act, declaration, All other writings are private.
conversation, writing, or record is given in
evidence, any other act, declaration, Last wills and testament must undergo an
conversation, writing or record necessary to its authentication process even if they are notarized.
understanding may also be given in evidence. The substantive rule in the Civil Code provides that:
“No will shall pass either real or personal estate
The rule applies to confessions: Confessions unless it is proved and allowed in the probate
must be considered in their entirety including court.”
inculpatory and exculpatory statements; however,
portions may be rejected if improbable, false or A public document is a document in the execution
unworthy of credit of which a person in authority or a notary public
takes part.
SECTION 18. RIGHT TO INSPECT WRITING
SHOWN TO WITNESS The above public documents are admissible in
When part of a writing is introduced in evidence by evidence without further proof of their authenticity,
one litigant, his adversary is entitled to use other and all that the party presenting them in evidence
parts relevant to the issues in the case and has the has to do is mark them as exhibits and thereafter
right to inspect the writing and to require its offer them as evidence in accordance with the rules
production in court. (Agpalo, p. 330-331).
Authentication and Proof of Documents A private writing is not self-authenticating. It

requires proof of their due execution and
Authentication authentication before they can be received in
The process of proving the due execution and evidence.
genuineness of the document.
Public Private
Due Execution and Genuineness Writing Writing
Means nothing more than that the instrument is not
spurious, counterfeit, or of different import on its

As to A public A private
authenticity document is writing must be Note: Only private documents require proof of their
admissible in proved relative due execution and authenticity before they can be
evidence, to its due received as evidence (General Enterprises Inc. vs.
without execution and Lianga Bay Logging Co., Inc., 11 SCRA 733), if
further proof genuineness, offered as authentic.
of its before it may
genuineness be received in Failure to deny due execution and authenticity of
and due evidence. the pleadings or actionable documents are deemed
execution. as admission of the same.
As to A public A private
persons instrument is writing binds SECTION 20. PROOF OF PRIVATE DOCUMENT
bound evidence only the parties The due execution and authenticity of a private
even against who executed it document must be proved either by:
third persons, or their privies, 1. Anyone who saw the document executed or
of the fact insofar as due written;
which gave execution and 2. Evidence of the genuineness of the
rise to its due date of the signature or handwriting of the maker.
execution document are
and to the concerned. The following are private writings which may be
date of the admitted in evidence without previous proof of its
latter. authenticity and due execution:
As to Certain 1. When the genuineness and due execution of the
validity of transactions document is admitted by the adverse party;
certain must be in a 2. When such genuineness and due execution are
transaction public immaterial to the issue;
document, 3. When the document is an ancient document.
otherwise
they will not Self-Authenticating Documents
be given any Documents that are prima facie evidence of their
validity. own authentication
1. Official records under seal
2. Notarized documents
Church registries of birth, marriages and deaths 3. Certified copies of public records
made subsequent to the promulgation of General
Orders no. 68 (December 18, 1889) and Act No. Ancient Document Rule applies only if there are no
190 (August 7, 1901) are no longer public writings other witnesses to determine authenticity.
nor are they kept by duly authorized public officials.
They are private writings and their authenticity must In addition to the modes of authenticating a private
therefore be proved, as are all other private writings document under Sec. 20, American jurisprudence
in accordance with the Rules of Evidence (Llemos also gives the doctrine of self-authentication,
v. Llemos, G.R. No. 150162, January 26, 2007). that is, where the facts in writing could only have
been known by the writer; and also the rule of
Order of presentation of documentary evidence authentication by the adverse party, that is, where
1. Authentication and proving in the manner the reply of the adverse party refers to and affirms
provided in the Rules of Court; the sending to him and his receipt of the letter in
2. Identification and marking for identification; question, a copy of which the proponent is offering
3. Formal offer in evidence to the court and as evidence (Regalado, p. 812).
shown to the opposing party so that the latter
may have the opportunity to object thereon

Other instances when authentication is not Conditions of custody: This is determined by the
required: In order to avoid the authentication of circumstances of the case. While there may be one
private writings, the parties can resort to any of the place absolutely and strictly proper, there are
following: various places which are reasonable and natural; in
a. Rule on Actionable Documents: when the such cases, the former is not required.
adverse party fails to specifically deny under oath
the genuineness and due execution of the Documents which affect real property must be
actionable document and to set forth what he recorded with the appropriate Registry of Deeds to
claims to be the facts, the same shall be deemed bind third parties.
admitted (Rule 8,Sec.8).
b. Request for Admission: if the party fails to SECTION 22. HOW GENUINENESS OF
specifically deny the matters on which the HANDWRITING PROVED
admission is requested within the period given,
the genuineness and due execution shall be Methods of authentication
deemed admitted (Rule 26). 1. Testimony of the purported writer;
c.Pre-Trial: the parties can enter stipulations and 2. The testimony of a witness who has seen
admit the genuineness and due execution. the writer sign his name or actually make the
writing whether the witness attested the
SECTION 21. WHEN EVIDENCE BY instrument or not;
AUTHENTICITY OF PRIVATE DOCUMENT NOT 3. The testimony of a witness who is familiar
NECESSARY with the handwriting (non-expert opinion). Thus,
under this rule, the genuineness of a handwriting
Requirements for ancient document rule: may be proved:
1. The private document is more than 30 years a. By any witness who believes it to be the
old; handwriting of such person because he has
2. It is produced from custody in which it would seen the person write or has seen writing
naturally be found if genuine; purporting to be his upon which the witness has
3. It is unblemished by any alterations or acted or been charged;
circumstances of suspicions. b. By a comparison made by the witness or the
court, with writings admitted or treated as
An ancient document is said to be in proper genuine by the party, against whom the
custody if it is in the place in which and under the evidence is offered, or proved to be genuine to
care of the person with whom it would naturally be. the satisfaction of the judge.
Ratio: The fact of its coming from the natural and Note: Handwriting experts are not mandatory.
proper place tends to remove presumptions of
fraud and strengthen the belief of its genuineness. Weight of expert testimony: It depends upon the
assistance he may afford in pointing out
By merely producing the document, it establishes distinguishing marks, characteristics and
prima facie its own authentication. The burden then discrepancies in and between genuine and false
shifts to the adverse party to prove that the specimens of writings which would ordinarily
document is not what it purports to be or otherwise escape notice or detection by an untrained
not authentic. observer.
Computation of age: The time is to be reckoned SECTION 23. PUBLIC DOCUMENTS AS

from the date of the execution to the day when the EVIDENCE
instrument is offered in evidence (Francisco, Documents consisting of entries in public records
p.341). 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 accompanied by a certificate that such officer
rise to their execution and of the date of the latter. has the custody, which may be made by the
secretary of the embassy or legation, consul-
Prima Facie Evidence general, consul, vice-consul, or consular agent
Evidence which, if unexplained or uncontradicted, or foreign service officer and with a seal of his
is sufficient to sustain a judgment in favor of the office.
issue which it supports.
SECTION 25. WHAT ATTESTATION OF COPY
To contradict the facts contained in a notarial MUST STATE
document and presumption of regularity in its favor, It must state that it is a correct copy of the original
there must be evidence that is clear, convincing or a specific part thereof, as the case may be.
and more than merely preponderant (Agpalo,
p.357). It must be under the official seal of the attesting
officer, if there be any or if he be clerk of court
Reason: having a seal, under the seal of such court.
1. Necessity: practical impossibility of
requiring the official’s attendance as a witness to Foreign documents: Competent evidence if duly
testify to the innumerable transactions occurring authenticated by an official of the government of
in the course of his duty. the country in which the documents are located
2. Trustworthiness: there is a presumption of
regularity, legality and accuracy. Foreign Judgments
A written act or record of an official body or tribunal
There are two classes of public documents, of a foreign country, thus a public writing. Secs. 24
namely, those issued by competent public officials and 25 of Rule 132 must be followed.
by reason of their office, and those executed by
private individuals which are authenticated by
notaries public. The “other public documents” Authentication of foreign judicial records
referred to include notarial documents (Agpalo, 1. By an exemplification under seal
p.343). 2. By a copy proved to be a true copy
3. By the certification of an officer authorized
The rule is not absolute “in the sense that the by law
contents of a public document are conclusive 4. If they are all beyond reach, other testimony
evidence against the contracting parties as to the of inferior nature may be received.
truthfulness of the statements made therein.” They
constitute only prima facie evidence of the facts SECTION 26. IRREMOVABILITY OF PUBLIC
which gave rise to their execution and of the date of RECORD
the latter (Francisco,1997).
Ratio:
SECTION 24. PROOF OF OFFICIAL RECORD 1. To enable others to use the records;
1. If it is a domestic record, it may be 2. To prevent the serious risk of loss;
evidenced by: 3. To prevent its exposure to wear and tear.
a. An official publication; or
b. A copy thereof attested by the officer having the Only exception: upon order of the court where the
custody of the record or his deputy, with a inspection of the record is essential to the just
certificate that such officer has the custody. determination of a pending case.
2. If it is a foreign record, it may be
evidenced by: SECTION 27. PUBLIC RECORD OF A PRIVATE
a. An official publication; or DOCUMENT
b. A copy thereof attested by the officer having the If a private writing is inserted officially into a public
custody of the record or his deputy, record, its record, recording or incorporation into

the public record becomes a public document, but One which is duly acknowledged before a notary
that does NOT make the private writing itself a public.
public document so as to make it admissible
without authentication. A document acknowledged before a notary public
becomes a public instrument. Hence, its execution
SECTION 28. PROOF OF LACK OF RECORD and authenticity need not be proved.
A written statement signed by an officer having the
custody of an official record or by his deputy that Note: The person who notarized the document
after diligent search no record or entry of a must really be a notary public, and notarized it in
specified tenor is found to exist in the records of his accordance with the Notarial Law.
office, accompanied by a certificate as above
provided, is admissible as evidence that the Probative value of a notarial document: It is
records of his office contain no such record or evidence of the facts expressed therein.
entry.
SECTION 31. ALTERATIONS IN DOCUMENT,
For instance, certification by the Board of Medical HOW TO EXPLAIN
examiners that no records of the accused exist as a The party producing a document as genuine which
registered doctor is admissible in evidence of such has been altered and appears to have been altered
fact. after its execution, in a part material to the question
in dispute, must account for the alteration. He must
SECTION 29. HOW JUDICIAL RECORD show that:
IMPEACHED 1. The alteration was made by another,
1. By evidence of want of jurisdiction in the without his concurrence; or
court or judicial officer; 2. Was made with the consent of the parties
2. Collusion between the parties (e.g. legal affected by it; or
separation or annulment cases); 3. Was otherwise properly or innocently made;
3. Fraud in the party offering the record, in or
respect to the proceedings. 4. That the alteration did not change the
meaning or language of the instrument.
Fraud refers to extrinsic fraud, which is a ground for
annulment of judgment. Note: Parties presenting the document must
explain the alteration during the presentation, and
Extrinsic Fraud not afterwards.
Refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the Presumption as to author of alteration: It is
trial of the case, whereby the defeated party has presumed that a party producing it or with his privity
been prevented from exhibiting fully his case by caused the alteration. The burden is upon him to
fraud or deception practiced on him by his show that the same was not made by him or his
opponent (Agpalo, p.352). privies.
What constitutes judicial record Test of materiality: The alteration is material if it

General rule: Judicial records are admissible in alters the terms or language of the instrument, or
evidence in a subsequent action if it is relevant to changes the rights, interests, or obligations of the
an issue involved therein; embraces all parts of the parties.
record.
Material alterations in negotiable instruments are
SECTION 30. PROOF OF NOTARIAL governed by Sec. 125 of the Negotiable
DOCUMENTS Instruments Law.
Notarial Document

Alteration Spoliation party an opportunity to secure a translation of the

Made by a party or an Made by a stranger affidavit.
agent
E-C OM M ERCE L AW
Parol evidence R.A. NO . 8792
admissible to impeach
instrument by proof of
material alteration Electronic Document
Effect of material alteration: Contract is vitiated Refers to information or the representation of

even though the change purports to operate to the information, data, figures, symbols by which a right
disadvantage of the wrongdoer or to the benefit of is established or an obligation extinguished, or by
the other party. which a fact may be proved and affirmed, which is
Reason: The identity of the contract is destroyed. received, recorded, transmitted, stored, processed,
retrieved or produced electronically.
Note: Change in date of payment of the note
vitiates the instrument
Electronic Data Message
SECTION 32. SEAL Refers to information generated, sent, received or
If the document is required by law to be stamped, it stored by electronic, optical or similar means.
cannot be recorded or admitted in evidence if not
stamped. Electronic Signature
Refers to any distinctive mark, characteristic and/or
A document is not admissible if the documentary sound in electronic form, representing the identity
stamp is not paid when it is subject to be paid. of a person and attached to or logically associated
However, the court allows subsequent compliance with the electronic data message or electronic
with the documentary stamp requirement. document or any methodology or procedures
employed or adopted by a person and executed or
Absence of a documentary stamp in a will is not adopted by such person with the intention of
fatal since the probate court can require the authenticating or approving an electronic data
proponent to affix the same in the notarial message or electronic document.
acknowledgment.
Digital Signature
SECTION 33. DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE Refers to an electronic signature consisting of a
Documents written in an unofficial language shall transformation of an electronic document or an
not be admitted as evidence, unless accompanied electronic data message using an asymmetric or
with a translation into English or Filipino. To avoid public cryptosystem such that a person having the
interruption of proceedings, parties or their initial untransformed electronic document and the
attorneys are directed to have such translation signer’s public key can accurately determine:
prepared before trial.
1. Whether the transformation was created
using the private key that corresponds to the
Sec. 7, Art. XIV of the Constitution: “For signer’s public key; and
purposes of communication and instruction, the 2. Whether the initial electronic document had
official languages of the Philippines are Filipino and been altered after the transformation was made.
until otherwise provided by law, English.”
Note: If an affidavit is executed in an unofficial Asymmetric or public cryptosystem

language, the court has the discretion to deny the

A system capable of generating a secure key pair, electronic document is what the person claims it to
consisting of a private key for creating a digital be.
signature, and a public key for verifying the digital
signature.
Requisites for the admissibility of electronic RULES ON E LECT RONIC E VIDENCE
document (Sec. 7)
1. Where the law requires a document to be in
writing, the requirement is met by an electronic Note: Under A.M. No. 01-7-01-SC the rules shall
document if the said electronic document apply to all criminal and civil actions and
maintains its integrity and reliability and can be proceedings, as well as quasi-judicial and
authenticated so as to be usable for subsequent administrative cases (Effective: October 14, 2002).
reference:
a. The electronic document has remained
complete and unaltered, apart from the addition Electronic documents as functional equivalent
of any endorsement and any authorized change of paper-based documents
or any change which arises in the normal Whenever a rule of evidence refers to the term of
course of communication, storage and display; writing, document, record, instrument,
and memorandum or any other form of writing, such
b. The electronic document is reliable in the term shall be deemed to include an electronic
light of the purpose for which it was generated document.
and in the light of all relevant circumstances.
2. Paragraph (1) applies whether the An electronic document is admissible in evidence if
requirement therein is in the form of an obligation it complies with the rules on admissibility prescribed
or whether the law simply provides consequences by the Rules of Court and related laws and is
for the document not being presented or retained authenticated in the manner prescribed by these
in its original form; rules.
3. Where the law requires that the document
be presented or retained in its original form, that
requirement is met by an electronic document if: When is electronic evidence regarded as being
a. There exists a reliable assurance as to the the equivalent of an original document under
integrity of the document from the time it was the Best Evidence Rule? (Bar Question 2003) An
first generated in its final form; and electronic document shall be regarded as the
b. That document is capable of being equivalent of an original document under the Best
displayed to the person to whom it is to be Evidence Rule if it is a printout or output readable
presented; provided that no provision of this act by sight or other means, shown to reflect the data
shall apply to vary any and all requirements of accurately.
existing laws on formalities required in the
execution of documents for their validity.
Manner of authentication of an electronic
Note: For evidentiary purposes, an electronic document
document shall be the functional equivalent of a
written document under existing laws. 1. By evidence that it has been digitally signed
by the person purported to have signed the same;
Burden of Proof: The person seeking to introduce 2. By evidence that other appropriate security
an electronic data message or electronic document procedures or devices as may be authorized by
in any legal proceeding has the burden of proving the Supreme Court or by law for the
its authenticity by evidence capable of supporting a authentication of electronic documents were
finding that the electronic data message or applied to the document;

3. By other evidence showing its integrity and must affirmatively show the competence of the
reliability to the satisfaction of the judge. affiant to testify on the matters contained therein.
Cross examination: The affiant shall be made to

Authentication of electronic signatures: affirm the contents of the affidavit in open court and
may be cross-examined as a matter of right by the
1. By evidence that a method or process was adverse party.
utilized to establish a digital signature and verify
the same;
2. By any other means provided by law; Electronic business records are an exception to
3. By any other means satisfactory to the judge as the hearsay rule provided:
establishing the genuineness of the electronic
signature. 1. Made at or near the time of or from
transmission or supply of information;
2. Made by a person with knowledge thereof;
Disputable presumptions in relation to 3. Kept in the regular course or conduct of
electronic signature: (Rule 6, Section 3) business activity;
4. Such was the regular practice.
1. The electronic signature is that of the
person to whom it correlates; All of these must be shown by the testimony of the
2. The electronic signature was affixed by the custodian or other qualified witness (Rule 8,
person with the intention of authenticating or Section 1).
approving the electronic document to which it is
related or to indicate such person’s consent to the This presumption may be overcome by evidence of
transaction embodied therein; and the untrustworthiness of the source of information
3. The methods or processes utilized to affix or or the method or circumstances of the preparation,
verify the electronic signature operated without transmission or storage thereof (Rule 8, Section 2).
error or fault.
Audio, video and similar evidence: Audio,
photographic and video evidence of events, acts or
Disputable presumptions relating to digital transactions shall be admissible provided it shall be
signatures (in addition to the foregoing) (Rule 6, shown, presented or displayed to the court and
Section 4) shall be identified, explained or authenticated by
the person who made the recording or by some
1. The information contained in the certificate other person competent to testify on the accuracy
is correct; thereof (Rule 11, Section 1).
2. The digital signature was created during the
operational period of a certificate; Ephemeral Electronic Communication
3. The message associated with the digital Refers to telephone conversations, text messages,
signature has not been altered from the time it chat room sessions, streaming audio, streaming
was signed; and video and other electronic forms of communication
4. A certificate has been issued by the the evidence of which is not recorded or retained.
certification authority indicated therein. 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
Method of proof: All matters relating to the or unavailability of such witnesses, other competent
admissibility and evidentiary weight of electronic evidence may be admitted (Rule 11, Section 2).
document may be established by an affidavit
stating facts of direct personal knowledge of the
affiant or based on authentic records. The affidavit

C. Offer and Objection previously scrutinized by the court below

(Bautista,p.154).
SECTION 34. OFFER OF EVIDENCE
Procedure Note: Where the evidence is inadmissible for the
purpose stated in the offer, it must be rejected,
Formal offer of evidence though the same may be admissible for another
purpose. The reason is that the adverse party is
prevented from objecting to the admissibility thereof
Objection: Grounds on grounds other than those available to meet the
stated purpose.
General: Immaterial or irrelevant In Mata Vda. De Onate v. Court of Appeals, G.R.
No. 116149, November 23, 1995, the Court allowed
evidence not formally offered to be admitted and
Sustained Overruled considered by the trial court provided the following
requirements are present:
Evidence offered will Evidence will be
1. The same must have been duly identified by
not be allowed to be allowed to be testimony duly recorded;
presented in court presented in court 2. The same must have been incorporated in
the records of the case.
Remedy of offeror: Presentation of SECTION 35. WHEN TO MAKE OFFER

evidence offered
Tender of excluded When to make offer of evidence: The proper time
evidence to offer evidence depends on the nature of
evidence.
Offer of evidence Testimonial/Oral Documentary And

General Rule: The court shall consider no Evidence Object Evidence
evidence which has not been formally offered, the After the party has
purpose for which having been identified At the time the witness presented his
is called to testify. testimonial evidence,
Purpose: It is the duty of the judge to base his before he rests.
findings of facts and his judgment only and strictly Note:
upon the evidence offered and admitted.
Implied Offer: Every
Why purpose of offer must be specified: To time a question is
determine whether that piece of evidence should be asked of a witness,
admitted or not. Because such evidence may be there is an implied
admissible for several purposes under the doctrine automatic offer of the
of multiple admissibility, or may be admissible for evidence sought to be
one purpose and not for another, otherwise the elicited by the
Offered only once.
adverse party cannot interpose the proper question. If there is
objection. Evidence submitted for one purpose may any objection to the
not be considered for any other purpose by the question, the same
judge. must be raised
immediately;
Opposition parties will be deprived of their chance otherwise, there is a
to examine the document and to object to its waiver.
admissibility. On the other hand, the appellate court
will have difficulty reviewing documents not Thus, oral evidence is

always being offered 6. Objections – The objection to the introduction or

twice: presentation of the document shall be made
1. Before the when it is formally offered in evidence (Rule 132,
witness testifies; and Sec. 36).
2. Every time a
question is asked of
him. Identification Formal offer
Identification of Formal offer of
Procedure before documentary and object documentary evidence documentary evidence
evidence can be considered by the Court: is done in the course as an exhibit is done
1. Marking; of the trial and is when the party has
2. Identification; accompanied by the presented his
3. Authentication (except: public document); marking of the testimonial evidence.
4. Formal offer; and evidence as an
5. If the evidence is excluded, an offer of proof. exhibit.
Authentication and identification can be dispensed

with if there is a stipulation on the due execution Note: The mere fact that a particular document is
and genuineness of the private document. identified and marked as an exhibit does not mean
that it will be or has been offered as part of the
evidence of the party. The party may decide to
Stages in the presentation of documentary formally offer it if it believes this will advance its
evidence cause, or it may decide not to do so at all. It is only
when the proponent rests his case and formally
1. Identification – By identification is meant proof offers the evidence that an objection thereto may
that the document being presented is the same be made. Any objection prior thereto is premature.
one referred to by the witness in his testimony.
2. Marking – All exhibits should be marked to Documents which may have been marked as
facilitate their identification. The marking may be exhibits during the hearing but which were not
made at the pre-trial or during the trial. formally offered in evidence cannot be considered
The plaintiff and the prosecution use capital as evidence nor can they be given any evidentiary
letters (“A”, “B”, “C”, etc.) and the accused use value.
Arabic numbers (“1”, “2”, “3”, etc.).
If the exhibit is presented in connection with an When formal offer of evidence is not required
affidavit, like in support or in opposition to a 1. Summary Proceedings;
motion to dismiss, the words “Motion to Dismiss” 2. Documents judicially admitted or taken
should be added after the letter or number. judicial notice of;
3. Authentication – The proof of a document’s due 3. Documents, affidavits, and depositions used
execution and genuineness, if the purpose is to in rendering summary judgments;
show that it is genuine, or the proof of its forgery, 4. Document or affidavits used in deciding
if the purpose is to show that the document is a quasi-judicial or administrative cases;
forgery. 5. Lost objects previously marked, identified,
4. Inspection – Under Section 18 of Rule 132, described in the record, and testified to by
whenever a writing is shown to a witness, it may witnesses who had been subjects of cross-
be inspected by the adverse party. examination in respect to said objects (Riano,
5. Formal Offer – After the termination of the p.456).
testimonial evidence, the proponent will then
make a formal offer and state the purpose for
which the document is presented (Rule 132, Sec. SECTION 36. OBJECTION
34).

Classification of objections the absence of any request by the opposing party

or the court to make the objection definite, that the
1. General Objection – It does not go beyond ruling was made upon the right ground.
declaring the evidence as immaterial,
incompetent, irrelevant or inadmissible. In other The rule however, does not impose a general or an
words, it does not specify the grounds for absolute ban on general objections. There is no
objection. (Also known as a Broadside compelling need to specify the ground, “if the
Objection) ground for exclusion should have been obvious to
2. Specific Objection – It states why or how the judge or to the counsel” (Riano, p.464).
the evidence is irrelevant or incompetent. E.g.
Objection to the question for being leading. A general objection to evidence is sufficient where
3. Formal Objection – is one directed against the ground therefor is so manifest that the trial court
the alleged defect in the formulation of the could not fail to understand it, as when the
question. E.g. ambiguous question evidence offered is clearly irrelevant or incompetent
4. Substantive Objection – objections made (Francisco, vol.2, p.399).
and directed against the very nature of the
evidence, i.e., it is inadmissible either because it When to make objection: The proper time to
is irrelevant or incompetent or both. e.g. parol, make a protest or objection against the admission
hearsay evidence (Riano, 2009). of evidence depends on the manner the evidence is
offered.
Requirements to exclude inadmissible
evidence:
Time to Make
Manner of Offering
1. One has to object to the evidence; Objection
2. The objection must be timely made; and Evidence offered Made immediately
3. The grounds for the objection must be orally after the offer is made
specified (Specific Objections).
For questions Made as soon as the
The party has a right to object to evidence which he propounded in the grounds therefore
considers not admissible under the complaint, even course of the oral shall become
if the questions were asked by the judge examination of a reasonably apparent
(Francisco, vol.2, p.406). witness
Within 3 days after
Reasons why an objection must be specific notice of the offer
1. So that the judge may understand the In case of an offer of unless a different
question raised and that the adversary may have evidence in writing period is allowed by
an opportunity to remedy the defect, if possible; the court
2. To make a proper record for the reviewing
court in the event of an appeal.
Objections made at the start of the testimony of a
As a rule, failure to specify the grounds for the witness are different. Here, the party objecting
objection is in effect a waiver of the objection. objects to the witness’ testimony in general. The
Every other objection which is not particularly party objecting is asking the court to disallow the
stated is to be considered abandoned, except testimony of the witness or to not allow the witness
where the evidence could not have been legally to testify at all.
admitted for any purpose whatever.
A protest or objection against the admission of any
When evidence is excluded upon a mere general evidence must be made at the proper time, and if
objection, the ruling will be upheld, if any ground in not so made, it will be understood to have been
fact existed for the exclusion. It will be assumed, in waived.

What does he waive? The objections to its to know with any certainty whether testimony is
admissibility. The evidence becomes admissible relevant or not; and where there is no indication of
but the waiver involves no admission that the bad faith on the part of the attorney offering the
evidence possesses the weight attributed to it by evidence, the court may as a rule safely accept the
the offering party (Riano, 2009). testimony upon the statement of the attorney that
the proof offered will be connected later (Prats v.
Effect of cross-examination: A party who objects Phoenix, 52 Phil.807, 1929).
to the introduction of testimony on direct does not
waive the objection by his cross-examination of the Effect of ruling on objections
witness with regard to his testimony. Neither does 1. When an objection to a question is
the objector waive his objection by his introduction sustained: the court declares the question
of testimony defensive to the testimony objected to, improper, and the witness ought not to answer it.
and weakening it, or impeaching the witness. 2. When the objection is overruled: the court
declares the question proper and the witness
In Limketkai Sons Milling, Inc. v. Court of Appeals, must answer it (Francisco, vol.2, p.417).
the lawyers prefaced the cross-examination with an
objection to the admission evidence in affidavit
form. The court held that while said counsels cross- SECTION 39. STRIKING OUT ANSWER
examined the witnesses, this did not constitute a
waiver of the parol evidence rule. Modes of excluding inadmissible evidence
1. Objection: when the evidence is offered.
SECTION 37. WHEN REPETITION OF 2. Motion to strike out or Expunge: proper in
OBJECTION UNNECESSARY the following cases:
a. When the witness answers prematurely
Rule on continuing objections: When it becomes before there is reasonable opportunity for the
reasonably apparent in the course of the party to object (Sec. 39);
examination of a witness that the questions being b. Unresponsive answers;
propounded are of the same class as those to c.Answers that are incompetent, irrelevant, or
which objection has been made, whether such improper (Sec. 39);
objection was sustained or overruled, it shall NOT d. Uncompleted testimonies where there was
be necessary to repeat the objection, it being no opportunity for the other party to cross-
sufficient for the adverse party to record his examine;
continuing objection to such class of questions. e. Conditionally admitted evidence not later
substantiated.
SECTION 38. RULING
The court may take a reasonable time to study the Note: There must be objection before motion to
questions raised by the objection, but a ruling strike.
should always be made during the trial. If no ruling
is made during the course of the trial, counsel Time of making motions to strike: A counsel is
would have no means of knowing whether or not he not allowed to gamble upon the possibility of a
would be compelled to meet any evidence at all, favorable answer, but must object to the admission
hence it would prejudice the substantial rights of his of evidence as soon as the ground for objection
client. becomes apparent.
Liberality in admitting evidence: The practice of Failure to cross-examine: A motion to strike is

excluding evidence on doubtful objection to its also the remedy in case a witness dies or becomes
materiality or technical objection to the form of the incapacitated to testify when the other party has not
questions should be avoided. In a case of any been given the opportunity to cross-examine the
intricacy it is impossible for a judge of first instance, witness.
in the early stages of the development of the proof,

SECTION 40. TENDER OF EXCLUDED It is impossible for a judge, in the early stages of
EVIDENCE the development of proof, to know with certainty
whether the testimony is relevant or not; and where
Tender of excluded evidence or offer of proof or there is no indication of bad faith on the part of the
proffer of evidence: When an attorney is not attorney offering the evidence, the court may, as a
allowed by the court to present testimony which he rule, safely accept the testimony upon the
thinks is competent, material and necessary to statement of the attorney that the proof offered will
prove his case, he must make an offer of proof. be connected later (Prats & Co. v. Phoenix
This is the method of properly preserving the record Insurance Co., G.R. No. 28607, February 21,
to the end that the question may be saved for 1929).
purposes of review (Caraig, Revised Rules of
Evidence 2004 ed., p. 337). The rulings of the trial court on procedural
questions and on admissibility of evidence during
Purposes: the course of a trial are interlocutory in nature and
1. To inform the court what is expected to be may not be the subject of separate appeals or
proved; and review on certiorari. These are assigned as errors
2. So that the appellate court may determine and reviewed in the appeal taken from the trial
from the record whether the proposed evidence is court on the merits of the case (Gatdula v. People
competent. of the Philippines, G.R. No. 140688, January 26,
2001).
How made:
1. As to documentary or object evidence: It An offer of proof may be made:
may have the same attached to or made part of 1. Before the court has ruled on the objection,
the record. in which case its function is to persuade the court
2. As to oral evidence: It may state for the to overrule the objection or deny the privilege
record the name and other personal invoked;
circumstances of the witness and the substance 2. After the court has sustained the objection,
of the proposed testimony. in which case its function is to preserve for the
appeal the evidence excluded by the privilege
invoked;
Offer of Proof/Tender 3. Where the offer of proof includes the
of Excluded Offer of Evidence introduction of documents, or any of the physical
Evidence evidence, the same should be marked for
Refers to testimonial, identification so that they may become a part of
documentary or object the record (Herrera, Vol. VI, p. 344).
evidence that are
Only resorted to if
presented or offered in When offer of proof not required:
admission is refused
court by a party so 1. When the question to which an objection
by the court for
that the court can has been sustained clearly reveals on its face the
purposes of review on
consider his evidence substance, purpose and relevancy of the
appeal.
when it comes to the excluded evidence;
preparation of the 2. When the substance, purpose and
decision. relevancy of the excluded evidence were made
known to the court earlier in the proceedings and
such part appears on record;
The “por lo que puedo valer” principle: The
3. Where evidence is inadmissible when
Supreme Court encourages the admission of
offered and excluded, but thereafter becomes, it
borderline evidence for whatever it is worth or por
must, be re-offered, unless the court indicates
lo que puedo valer. that a second offer would be useless (Herrera,
Vol. VI, pp.344-345).

1. Proof beyond reasonable doubt: It is

English Exchequer Rule: It is a species of mid- required for conviction of an accused in a criminal
1800 English rule pursuant to which “a trial court’s case.
error as to the admission of evidence was
presumed to have caused prejudice and therefore, That which is the logical and inevitable result of
almost automatically required a new trial” (LaFave the evidence on record, exclusive of any other
and Israel, op. cit., p. 1160). consideration, of the moral certainty of the guilt of
the accused or that degree of proof which
produces conviction in an unprejudiced mind.
This rule has long been laid to rest for even English 2. Clear and Convincing Evidence: This is
appellate court now disregard an error in the adduced to overcome a prima facie case or a
admission of evidence “unless in its opinion, some disputable presumption.
substantial wrong or miscarriage of justice has
been occasioned,” known as the Harmless Error An accused who invokes self-defense must prove
Rule. it by clear and convincing evidence (Agpalo,
p.399).
That degree of proof which will produce in the

In our jurisdiction, we follow the Harmless Error mind of the trier of facts a firm belief or conviction
Rule, for in dealing with evidence improperly as to the allegations sought to be established
admitted in the trial, we examine its damaging
quality and its impact to the substantive rights of Example: Extradition Proceedings
the litigant. If the impact is slight and insignificant,
we disregard the error as it will not overcome the 3. Preponderance of Evidence: The degree
weight of the properly admitted evidence against of proof required in civil cases.
the prejudiced party (People of the Philippines v.
Garcia, G.R. No. 105805, August 16, 1994). That which is of greater weight or more
convincing than that which is offered in opposition
to it.
RULE 133
4. Substantial Evidence: Required to reach a
S UFFICIENCY AND WEIGHT OF conclusion in administrative proceedings or to
E VIDENCE establish a fact before administrative/ quasi-
judicial bodies.
Weight of Evidence Such relevant evidence as a reasonable mind

The probative value or credit that the court gives to might accept as adequate to support a
a particular evidence admitted to prove a fact in conclusion.
issue.
Note: Evidence to be believed must not only come
Admissibility of evidence and its weight are from a credible witness but must also be credible in
different. The admissibility of evidence depends itself. The evidence must be natural, reasonable
on its relevance and competence, while the weight and probable as to make it easy to believe.
of evidence pertains to evidence already admitted
and its tendency to convince and persuade Equipoise Rule (Equiponderance of Evidence)
(Agpalo, p.388). The doctrine refers to a situation where the
evidence of the parties are evenly balanced or
Hierarchy of evidentiary values there is doubt on which side the evidence
preponderates. In such case the decision should be

against the party with the burden of proof Equiponderance of Evidence

(Marubeni Corp. v. Lirag, G.R. No. 130998, August Means that where the evidence on an issue of fact
10, 2001). is in equipoise or there is doubt on which side the
evidence preponderates, the party having the
Paraffin tests: Paraffin tests are inconclusive. The burden of proof fails upon that issue (Agpalo,
absence of powder burns in a suspect’s hand is not p.393).
conclusive proof that he has not fired a gun. In
fact, the traces of nitrates can easily be removed by In order to have the evidence which bears on the
the simple act of washing one’s hand (Abalos v. issue preponderate in his favor, a party must have
Court of Appeals, December 22, 1999). presented in support of his contention proof which
appears to have overcome opposing presumptions
Polygraph tests: A polygraph is an as well as opposing evidence.
electromechanical instrument that simultaneously
measures and records certain physiological
Positive Testimony Negative Testimony
changes in the human body that are believed to be
involuntarily caused by an examinee’s conscious It is when the witness It is when a witness
attempt to deceive the questioner (West’s Legal affirms that a fact did states that he did not
or did not occur. see or know of the
Thesaurus Dictionary, Special Deluxe Edition,
occurrence of a fact.
1986).
It has greater weight
It has lesser weight
than negative
than positive
testimony since the
testimony because
American Courts almost uniformly reject the results witness represents of
there is only a total
of polygraph tests when offered in evidence for the his personal
disclaimer of personal
purpose of establishing the guilt or innocence of knowledge the
knowledge.
one accused of a crime, whether the accused or presence or absence
the prosecution seeks its introduction, for the of a fact.
reason that polygraph has not yet attained scientific
acceptance as a reliable and accurate means of Ratio: He who denies a certain fact may not
ascertaining truth or deception (29 Am. Jur. 2d remember exactly the circumstances on which he
Evidence, S. 1008). The rule is the same in this bases his denial.
jurisdiction.
SECTION 2. PROOF BEYOND REASONABLE

Where the evidence of the parties in a criminal DOUBT
case is evenly balanced, the constitutional In determining the existence of proof beyond
presumption of innocence should tilt the scales in reasonable doubt, absolute certainty is not
favor of the accused. required, only the existence of moral certainty is
required.
The rule is different in a civil case; the party who
will lose is the party who has the burden of proof. Prosecution must present evidence that is strong
enough to convince the court that the prisoner must
be punished not because he cannot prove that he
SECTION 1. PREPONDERANCE OF EVIDENCE is innocent but because it has proved that he is
guilty.
Preponderance of Evidence
Means that the evidence adduced by one side is, For the defendant, it is enough that he is able to
as a whole, superior to or has greater weight than prove his defenses by preponderance of evidence
that of the other (Riano, p.412). since it will create a reasonable doubt as to his

guilt. Thus, whenever there is a reasonable doubt, Circumstances test, which utilizes the following
the accused is entitled to an acquittal. factors:
1. The witness’ opportunity to view the criminal at
Alibi must be established by positive, clear and the time of the crime;
satisfactory evidence. To be exonerating, the 2. The witness’ degree of attention at that time;
defense of alibi must be so airtight that it would 3. The accuracy of any prior description given by the
admit of no exception. witness;
4. The level of certainty demonstrated by the
One of the weakest defenses because of the facility witness at the identification;
with which it can be fabricated, just like a mere 5. The length of time between the crime and the
denial (People of the Philippines v. Esperanza, identification; and
G.R. No. 139217-24, June 27, 2003). 6. The suggestiveness of the identification
procedure.
However, alibi assumes significance and strength
where the evidence for the prosecution is also When the identity of the appellant is not established
intrinsically weak. beyond reasonable doubt, acquittal necessarily
follows. Conviction for a crime rests on the strength
Requisites: of the prosecution’s evidence, never on the
1. The presence of the accused in another weakness of that of the defense.
place at the time of the commission of the
offense; and In every criminal prosecution, the prosecution must
2. The physical impossibility for him to be at prove two things: (1) the commission of the crime
the scene of the crime at the time of its and (2) the identification of the accused as the
commission (People of the Philippines v. perpetrator of the crime. Cursory identification does
Larrañaga, G.R. Nos. 138874-75, July 21, 2005). not suffice to convict the accused. What is needed
is positive identification made with moral certainty
Motive as to the person of the offender (People of the
Philippines v. Maguing, G.R. No. 144090, June 26,
General Rule: The prosecution need not prove 2003).
motive on the part of the accused when the latter
has been positively identified as the author of the
crime. Eyewitness identification is often decisive of the
conviction or acquittal of an accused. Identification
Exception: It becomes relevant only when the of an accused through mug shots is one of the
accused has not been positively identified and established procedures in pinning down criminals.
proof thereof becomes essential only when the However, to avoid charges of impermissible
evidence of the commission of the crime is purely suggestion, there should be nothing in the
circumstantial or is inconclusive. photograph that would focus attention on a single
person (People of the Philippines v. Villena, G.R.
Flight: Flight from the scene of the crime is a No. 140066, October 14, 2002).
circumstantial evidence which is admissible against
him and, if not explained in a manner consistent A police line-up is merely a part of the investigation
with his innocence, is to be considered as tending process by police investigators to ascertain the
to show that he was the person who committed the identity of offenders or confirm their identification by
deed. a witness to the crime. Police officers are not
obliged to assemble a police line-up as a condition
Out of court identification: The Supreme Court sine qua non to prove the identity of an offender. If
has held that the admissibility and reliability of out- on the basis of the evidence on hand, police
of-court identification of suspects, the Totality of officers are certain of the identity of the offender,
they need not require any police line-up anymore

(Tapdasan, Jr. v. People of the Philippines, G.R. the acceptance of such evidence as is relieved
No. 141344, November 21, 2002). from any sign of falsehood;
3. The court may accept and reject portions of
Res Ipsa Loquitur (The thing speaks for itself) the witness’ testimony depending on the inherent
A maxim for the rule that the fact of the occurrence credibility thereof.
of an injury, taken with the surrounding
circumstances, may permit an inference or raise a The credibility of witnesses is best determined by
presumption of negligence, or make out a plaintiff’s the trial judge, who has the direct opportunity to
prima facie case, and present a question of fact for observe and evaluate their demeanor on the
the defendant to meet with an explanation. witness stand. The trial court’s findings of fact will
not be disturbed on appeal, unless there is a clear
The doctrine is simply a recognition of postulate showing that it plainly overlooked matters of
that as a matter of common knowledge and substance which, if considered, might affect the
experience, the very nature of certain types of results of the review (People of the Philippines v.
occurrences may justify an inference of negligence Pacuancuan, G.R. No. 144589, June 16, 2003).
on the part of person who controls the
instrumentality causing the injury, in the absence of “In rape cases, the lone testimony of the offended
some explanation by him. However, it does not party, if free from serious and material
dispense with the requirement of proof of contradictions, is sufficient to sustain a verdict of
negligence. conviction…” (People of the Philippines v.
Credibility of witnesses: In the assessment of the Esperanza, G.R. Nos. 139217-24, June 27, 2003)
credibility of witnesses, we are guided by the
following well-entrenched rules: (1) that evidence to Ratio: No young Filipina of decent repute would
be believed must not only spring from the mouth of undergo the expense, trouble, inconvenience of a
a credible witness but must itself be credible, and public trial, exposing herself to public shame and
(2) findings of facts and assessment of credibility of ridicule; suffer scandal, embarrassment and
humiliation of a public trial and publicly admitting
witness are matters best left to the trial court who
that she was criminally abused unless it is the truth
had the opportunity to personally evaluate the (People of the Philippines v. Avero, G.R. No.
witnesses' demeanor, conduct, and behavior while 76728, August 30, 1988).
testifying.
The sole, uncorroborated testimony of an accused
Rule on partial credibility who turned state witness may suffice to convict his
Falsus in uno, Falsus in omnibus (False in one co-accused if it is given unhesitatingly and in a
thing, false in everything): If the testimony of the straightforward manner and is full of details which
witness on a material issue is willfully false and by their nature could not have been the result of
given with an intention to deceive, the court may deliberate afterthought, otherwise, it needs
disregard all the witness’ testimony. Nevertheless, corroboration, the presence or lack of which may
the court may accept as admissible portion or ultimately decide the case of the prosecution and
portions of the testimony believed to be true and the fate of the accused (People of the Philippines v.
set aside the fabricated ones. Sunga, G.R. No. 126029, March 27, 2003).
Rules on Credibility in Rape Cases

This is not a mandatory rule of evidence but is
applied by the courts in its discretion.
Important: Three precepts have guided the Supreme Court

1. Deals only with the weight of evidence and in reviewing rape convictions:
not a positive rule of law;
2. The witnesses’ false or exaggerated 1. That an accusation for rape can be made
statements on other matters shall not preclude with facility; it is difficult to prove but more difficult

for the person accused, though innocent, to building or—as in the present case—to the
disprove; smuggled cigarettes. The corpus delicti may be
2. That in view of the intrinsic nature of the proven by the credible testimony of a sole witness,
crime of rape, where only two person are usually not necessarily by physical evidence such as those
involved, the testimony of the complainant is aforementioned (Rimorin v. People of the
scrutinized with extreme caution; and Philippines, G.R. No 146481, April 30, 2003).
3. That the evidence of the prosecution stands
or falls on its own merits and cannot be allowed Corpus delicti is not synonymous with the whole
to draw strength from the weakness of the charge so as to require that all the elements of the
defense (People of the Philippines v. Mahinya, crime be established independently of the extra-
February 1, 1999). judicial confession. It means there should be some
evidence apart from the confession tending to show
the commission of the crime.
Sweetheart Theory
SECTION 4. CIRCUMSTANTIAL EVIDENCE,
Accused admits that he had sexual intercourse with
WHEN SUFFICIENT
the complainant that fateful day, but argues that
they were lovers and the act is consensual. It is sufficient for conviction if:
However, other than his bare allegations, he 1. There is more than one circumstance;
adduced no independent proof that he was the 2. The facts from which the inferences are
sweetheart of the victim. His sweetheart defense derived are proven; and
was neither corroborated by any other witness nor 3. The combination of all the circumstances is
substantiated by any memento, love note, picture such as to produce a conviction beyond
or token. Furthermore, even assuming that they reasonable doubt (People of the Philippines v.
were lovers, their relationship did not give him a Guihama, G.R. No. 126113, June 25, 2003).
license to sexually assault her. Love is not a license
to rape. All the circumstances proved must be consistent
with each other, and they are to be taken together
as proved. They must point unerringly to the
SECTION 3. EXTRAJUDICIAL CONFESSION, direction of guilt and mere suspicions, probabilities,
NOT SUFFICIENT GROUND FOR CONVICTION or suppositions do not warrant a conviction. A
An extrajudicial confession is not sufficient ground conviction based on circumstantial evidence must
for conviction unless corroborated by evidence of exclude each and every hypothesis consistent with
corpus delicti. innocence.
Corpus delicti Reason for its admission: It is due to necessity,

The actual commission by someone of the especially in a criminal case. If only direct evidence
particular crime charged. is allowed, very few conviction could be had.
Besides circumstantial evidence is based on sound
Two Elements: rational grounds of everyday logic.
1. That a certain result has been proved;
2. That someone is criminally responsible for Direct proof of previous agreement to commit a
the act. crime is not necessary to prove conspiracy as it
may be deduced from the acts of the perpetrators
Note: The identity of the accused is not a before, during and after the commission of the
necessary element of the corpus delicti. crime which are indicative of a common design,
concerted action and concurrence of sentiments
Corpus delicti in its legal sense refers to the fact of (Serrano v. Court of Appeals, G.R. No. 123896,
the commission of the crime, not to the physical June 25, 2003).
body of the deceased or to the ashes of a burned

Note: Circumstantial evidence can be utilized not Note: In the absence of direct evidence, the
only in a criminal case but in a civil case as well prosecution may resort to adducing circumstantial
evidence to discharge its burden.
Circumstantial
Direct Evidence
Evidence
Does not prove the SECTION 5. SUBSTANTIAL EVIDENCE
Establishes the
existence of a fact in
existence of a fact in
issue directly, but Factual findings of quasi-judicial agencies which
issue without the aid
merely provides for have acquired expertise in specific matters within
of any inference or
logical inference that their jurisdiction are generally accorded not only
presumption.
such fact really exists. respect but at all times even finality, if such findings
Each proof is given of are supported by substantial evidence.
facts and
circumstances from Administrative bodies cannot require that cases
The witnesses testify
which the court may before such bodies must be proven by
directly of their own
infer other connected preponderance of evidence.
knowledge as to the
facts which reasonably
main facts to be
follow, according to Note: If the allegations in the petition for writ of
proved.
the common amparo are proven by substantial evidence, the
experience of court shall grant the privilege of the writ and such
mankind.
reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied (The Rule on the Writ
Positive identification as direct evidence and as of Amparo, A.M. No.07-9-12-SC). The same rule
circumstantial evidence: Positive identification applies to petitions for writ of habeas data (The
pertains essentially to proof of identity and not per Rule on the Writ of Habeas Data, A.M.No.08-1-16-
se to that of being an eyewitness to the very act of SC).
commission of the crime.
The foregoing are the circumstances when

The two types of positive identification are: substantial evidence applies in courts.
1. A witness may identify a suspect or accused as

the offender as an eyewitness to the very act of
When may Supreme Court review findings? The
the commission of the crime. This constitutes
direct evidence. evaluation of testimonial evidence by trial courts is
2. The second type is when, although a witness may accorded great respect because of its chance to
not have actually witnessed the very act of observe first-hand the demeanor of witnesses. The
commission of a crime, he may still be able to rule is not inflexible but admits of exceptions.
positively identify a suspect or accused as the
perpetrator of a crime as when, for instance, the
latter is the person or one of the persons last Exceptions to conclusiveness of facts
seen with the victim immediately before and right
after the commission of the crime. The second 12. When the finding is grounded entirely on
type of positive identification forms part of speculations, surmise or conjecture;
circumstantial evidence. 13. When inference made is manifestly absurd,
mistaken or impossible;
14. When the judgment is premised on a
misrepresentation of facts;

15. When there is grave abuse of discretion in fact, the court can have no basis to make its
the appreciation of facts; findings of fact and the prudent course is to subject
16. When the findings of fact are conflicting; the affiants to cross-examination so that the court
17. When the CA in making its findings went can decide whom to believe (Sapida v. De
beyond the issues of the case and the same is Villanueva, G.R. No. L-27673, November 24, 1972).
contrary to both the admissions of appellants and
appellees;
18. When the findings of fact of the CA are at
variance with those of the trial court, the SC has
to review the evidence in order to arrive at the
correct findings based on the record;
19. When the findings of fact are conclusions
without citation of specific evidence on which they
are based;
20. When the facts set forth in the petition as
well as in the petitioner’s main and reply briefs
are not disputed by the respondents;
21. The findings of fact of the CA is premised
on the supposed evidence and is contradicted by
the evidence on record; and
22. When certain material facts and
circumstances have been overlooked by the trial
court which, if taken into account, would alter the
result of the case in that they would entitle the
accused to acquittal.
SECTION 6. POWER OF THE COURT TO STOP

FURTHER EVIDENCE
The court has the power to stop the introduction of

testimony which will merely be cumulative.
SECTION 7. EVIDENCE ON MOTION
When a motion is based on facts not appearing of

record the court may hear the matter on affidavits
or depositions presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions
(e.g. motion for bail when bail is not a matter of
right since prosecutor must prove that the evidence
of guilt is strong).
While the court may hear and rule upon motions

solely on the basis of affidavits or counter-affidavits,
if the affidavits contradict each other on matters of

BT-RemRev Edited PDF

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

BT-RemRev Edited PDF

Загружено:

Авторское право:

Доступные форматы

REMEDIAL LAW REVIEWER

Section 5 (5), Art. VIII of the Constitution provides that

a. promulgate rules concerning the protection and

Limitations of the Rule-making power of the

1) The rules shall provide a simplified and inexpensive

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 1

Principle of Judicial Heirarchy Courts of Original and Appellate Jurisdiction

A court is one with original jurisdiction when actions or

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 2

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 3

controversy exceeds P300,000 outside MM or exceeds

(d) Fourth Level (Supreme Court) CONCURRENT JURISDICTION

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 5

 2) Title t o, possession of, or interest in, real property

JURISDICTION OF THE REGIONAL TRIAL a) Petitions for guardianship, custody of

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 7

e. Disposition and distribution of CRIMINAL CASES

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 10

b) A petition for habeas corpus by a person 3. Compromise (Kaisahan ng mga Manggagawa sa La

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 11

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 12

Doctrine of Ancillary Jurisdiction

Under its ancillary jurisdiction, a court may determine all

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 13

RULE 1 SECTION 3. CASES GOVERNED

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 14

B. As to object estate. contract.

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 15

This provision assumes significance especially where SECTION 6. CONSTRUCTION

A civil action is commenced by: Exceptions:

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 16

8. The other party will not be unjustly prejudiced Injury

It is the act or omission by which a party violates a right

Test of sufficiency of a cause of action: Whether or

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 17

Relief Remedy Subject Matter Splitting of single cause of action

Exception to the exception: All obligations which

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 18

SECTION 5. JOINDER OF CAUSES OF ACTION These matters, however, shall be included in

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 19

RULE 3 It refers to a plaintiff’s The plaintiff is not the

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 20

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 21

SECTION 6. PERMISSIVE JOINDER OF

Exceptions (Under the Family Code): SECTION 8. NECESSARY PARTY

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 22

SECTION 9. NON-JOINDER OF NECESSARY Requisites of a class suit (CNSB)

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 23

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 24

SECTION 20. ACTION ON CONTRACTUAL SECTION 22. NOTICE TO THE SOLICITOR

However, execution shall not issue in favor of the

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 25

obligation. (Paglaum v. Union Bank G.R.No. 179018

V ENUE OF ACT IONS SECTION 1. VENUE OF REAL ACTIONS

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 26

Exception: Under the Revis ed Rules on Summary

If the plaintiff does not reside in the Philippines, the

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 27

4. Third-party Complaint (or fourth, etc); SECTION 5. DEFENSES

Answer SECTION 7. COMPULSORY COUNTERCLAIM

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 28

adjudication the presence of third parties of whom the

Emerald L. Lansangan & Ma. Theresa L. Reotutar Page 30