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REMEDIAL LAW

REMEDIAL LAW is that branch of law which provides for the jurisdiction of courts and the
rules concerning pleading, practice, and procedure before the courts. ( Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure, Riguera, 3rd ed., 2015).
Q: What is the nature of remedial law?
A: Remedial law are promulgated by
authority of law, as such, they have the
force and effect of law if not in conflict
with substantive law (Ateneo v. De La
Rosa, G.R. No. L-286, March 28, 1946).
Q: How are remedial laws implemented
in our system of government?
(BAR 2006)
A:Remedial laws are implemented in our
system of government through the pillars
of the judicial system, including the
prosecutory service, our courts of justice
and quasi-judicial agencies.
SUBSTANTIVE
LAW

REMEDIAL LAW

As to definition
It
creates,
defines
and It
prescribes
the
regulates rights method of enforcing
and duties that rights and obtaining
give rise to a redress
for
their
cause of action. invasions.
(Bustos
v.
Lucero,
G.R.
No.
L-2086,
March 8, 1949)
As to establishment of vested rights
It makes vested No vested rights.
rights.
As to Application
It is prospective It is retroactive.
in application.
It is applicable to
actions pending and
undetermined at the

time of their passage.


As to Authority of the Supreme Court
It cannot be
enacted by the
Supreme
Court.
It
originates
from
the
legislature.

The SC is expressly
empowered
to
promulgateprocedural
rules by Art VIII. Sec.
5(5)
of
the
Constitution.

RULE MAKING POWER OF THE


SUPREME COURT
The
Supreme
Court
has
the
constitutional power to promulgate rules
concerning
pleading,
practice
and
procedure (Sec. 5[5]. Art VIII, Constitution
of the Philippines).
Q: May Congress repeal, alter, or
supplement rules concerning pleading,
practice, and procedure?
A: No. The power of Congress to repeal,
alter or supplement rules concerning
pleading, practice and procedure was
taken away by the 1987 Constitution. The
Supreme Court now has the sole
authority to promulgate rules concerning
pleading, practice and procedure in all
courts. (GSIS vs. Caballero, G.R No.
158090, 4 October 2010)
3 LIMITATIONS ON THE RULE MAKING
POWER OF THE SUPREME COURT
1.

The rules shall provide simplified


and inexpensive procedure for the

2
speedy disposition of cases;
2. The rules shall be uniform for all
courts of the same grade; and
3. The rules shall not diminish,
increase or modify substantive
rights(Art. VIII Sec. 5[5], 1987 Phil.
Constitution).
POWER OF THE SUPREME COURT TO
AMEND AND SUSPEND PROCEDURAL
RULES
The courts have the power to relax or
suspend technical or procedural rules or
to except a case from their operation
when compelling reasons so warrant or
when the purpose of justice requires it.
What constitutes good and sufficient
cause that would merit suspension of the
rules is discretionary upon the court.
(Commissioner of Internal Revenue v.
Migrant Pagbilao Corporation, G.R. No.
159593. October 12, 2006).
Q: May the Supreme Court overturn
judicial precedents in the exercise of
its rule making power?
A: Yes.The constitutional power of the
Supreme Court to promulgate rules of
practice and procedure to amend or
repeal the same, necessarily carries with
it the power to overturn judicial
precedents on points of remedial law
through the amendment of the Rules of
Court. (Pinga v. Heirs of Santiago, G.R No.
170354, June 30, 2006).
Q: What is the primary objective of the
suspension of the rules?
A: In the interest of just and expeditious
proceedings, the Supreme Court may
suspend the application of the Rules of
Court and except a case from its

operation because the Rules were


precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice (Republic v. CA, et al.,
L-31303-04, May 31, 1978).
CONCEPT OF JUDICIAL POWER
JUDICIAL POWER includes the duty of
the courts of justice:
1. To settle actual controversies involving
rights, which are legally demandable and
enforceable and;
2. To determine whether or not there has
been grave abuse of discretion amounting
to lack or excess of jurisdiction on the
part of any branch or instrumentality of
the Government (CONST. ART. VIII,SEC 1).
Q: To whom the judicial power is
vested?
A: The judicial power shall be vested in
one Supreme Court and in such other
lower courts as may be established by law
(CONST. ART. VIII, SEC.1).
NATURE OF PHILIPPINE COURTS
Q: What is a court?
A: A court is an organ of government
belonging to the judicial department the
function of which is the application of the
laws to controversies brought before it as
well as the public administration of
justice (Blacks, 5th Edition, 356).
A court is called upon and authorized to
administer justice. Sometimes it refers to
the place where justice is administered
(20 Am Jur 2d, Courts, 1, 1965; 21
C.J.S., Courts, 1).
COURT AS DISTINGUISHED
FROM A JUDGE

A
court
is
a
tribunal officially
assembled under
authority of law.

A court is an
organ
of
the
government with a
personality
separate
and
distinct from the
person
judge
A
judge isora public
officer.
A court is a being
in
imagination
comparable to a
corporation.
The existence of
the
court
is
continuous and is
not affected by the
death, resignation,
or cessation from
the service of the
judge
presiding
over it.

A judge is simply
an officer of such
tribunal
(Wagen Horst v.
Philadelphia
Insurance
Company 358pa.
The judge has no
separate
and
distinct
personality from
the court.
A court is an
office.
A judge is a
physical person.

and signed by him, containing clearly and


distinctly a statement of the facts proved
and the law upon which the judgment is
based (Etoya v. Abraham Singson, Adm.
Matter No. RTJ-91-758, September 26,
1994).
An opinion of the court is the informal
expression of the views of the court and
cannot prevail against its final order. The
opinion of the court is contained in the
body of the decision that serves as a
guide or enlightenment to determine the
ratio decidendi of the decision. The
opinion forms no part of the judgment
even if combined in one instrument, but
may be referred to for the purpose of
construing the judgment (Contreras v.
Felix, G.R. No. L-477, June 30, 1947).
CLASSIFICATION OF COURTS

The judge shall


have such powers
only as he/she
continues
to
occupy the office.
The death of the
judge does not
mean the death
of the court
(Riano,
Civil
Procedure;
restatement
for
the bar 2009,

Judgment vs. Opinion of the Court


(2006)
Q: What is the difference between a
judgment and an opinion of the court?
A: The judgment or fallo is the final
disposition of the Court which is reflected
in the dispositive portion of the decision.
A decision is directly prepared by a judge

1. Courts of Law vs. Courts of Equity


Court of law decides a case according
to the promulgated law while a court
of equity adjudicates a controversy
according to the common precepts of
what is right and just without
inquiring into the terms of the
statutes.
Philippines courts, either original or
appellate, are courts of law and equity.
(U.S. v. Tamparong, No. 9527 August
23, 1915).
2. Constitutional Court vs. Statutory
Court
Constitutional Court is one created
by a direct constitutional provision. It
owes its creation from the constitution
itself.

4
Example: Supreme Court. (Sec 1, Art.
VIII, Constitution)
Statutory Court is one created by a
law other than the constitution. It
owes its creation from statutory
enactments. All courts in the
Philippines, except the Supreme
Court, are statutory courts.
Example: Sandiganbayan.
3. Superior Court vs. Inferior Court
Superior
Court
is
one
with
controlling authority over other courts
and with an original jurisdiction of its
own.
Inferior Court is one which is
subordinate to another court, the
judgment of which may be reviewed by
a higher tribunal (The Bar Lecture
Series, VOL.I, Civil Procedure, RIANO,
2014 ,p.61).
4. Civil Court vs. Criminal Court
Civil Courts are those which
determine
controversies
between
private persons.
Criminal Courts are those which
adjudicate offenses alleged to have
been committed against the State (The
Bar Lecture Series, VOL.I, Civil
Procedure,,RIANO, 2014,p.61)
5. As to Level
a. First Level - Metropolitan Trial
Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts.
b. Second Level - Regional Trial

Courts
c. Third Level - Court of Appeals,
Court
of
Tax
Appeals,
Sandiganbayan
d.

Fourth
LevelSupreme
Court(HERRERA, REMEDIAL LAW
VOL.I 2007 P.118).
JURISDICTION IN GENERAL

Latin: juris and dico I speak of the


law
JURISDICTION is the power and
authority of the court to hear, try and
decide a case. It has also been referred to
as the power or capacity given by the law
to a court or tribunal to entertain, hear,
and determine certain controversies (Dela
Cruz vs. Court of Appeals, 510 SCRA 103,
1041)
Q: What is
jurisdiction?

the

effect

of

lack

of

A: The proceedings conducted or


decisions made by a court are legally void
when there is absence of jurisdiction.
This is true even where the court in good
faith believes that the subject matter is
within its jurisdiction.
ERROR OF
JURISDICTION

ERROR OF
JUDGMENT

Error
of
jurisdiction
is
one where the act
complained of was
issued
by
the
court without or
in
excess
of
jurisdiction
(Cabrera vs. Lapid,
510 SCRA 55, 66)

Error
of
judgment
presupposes that
the court is vested
with jurisdiction
over the subject
matter
of
the
action but, in the
process
of
exercising
that

A
judgment
rendered without
a jurisdiction is
void.
Correctible only by
certiorari.
LACK OF
JURISDICTION
There is lack of
jurisdiction when
the court is not
vested by law with
authority or power
to take cognizance
of a case.

jurisdiction,
it
committed
mistakes in the
appreciation of the
facts
and
the
evidence
leading
to an erroneous
judgment
An
Erroneous
judgment is not a
void judgment.
Reviewable only by
appeal.
EXCESS OF
JURISDICTION
Excess
of
jurisdiction
presupposes
the
existence of an
authority for the
court to assume
jurisdiction over a
case but, in the
exercise of that
authority, it acted
beyond the power
conferred upon it.
(RIANO
supra,
2014, p. 74)

FOUR CONCEPTS OF JURISDICTIONIN


CIVIL CASES
1. JURISDICTION OVER THE SUBJECT
MATTER is the authority and power of
the court to hear and determine a
particular or specified class of case.
The term "subject matter" refers to the
thing, right or contract under the dispute
(De La Rama vs. Mendiola,401 SCRA 704,
711)
Example: RTC over cases where the

subject of the litigation is incapable of


pecuniary estimation.
Q: How is jurisdiction over the subject
matter is determined?
A: Jurisdiction over the subject matter is
conferred by law and determined by the
allegations in the complaint(Gustilo vs.
Gustilo III, 659 SCRA 619, 622).
2. JURISDICTION OVER THE PARTIES
is the power of the court to bind a party
or person.
Q: How is jurisdiction acquired over
the person of the plaintiff and the
defendant?
A: Jurisdiction acquired over the
person of the plaintiff is acquired by the
filing of the complaint or petition.
Jurisdiction over the person of the
defendant is obtained by service of
summons
or
his
voluntary
appearance(The Bar Lecture Series, VOL.I,
Civil Procedure, RIANO, 2014, p.71).
Jurisdiction over the person of the
defendant is required only in an action in
personam. Jurisdiction over the person of
the defendant is NOT a prerequisite in an
action in rem and quasi in rem (Gomez v.
CA, 425 SCRA 98).
Q:
Amorsolo,
a
Filipino
citizen
permanently residing in New York City,
filed with the RTC of Lipa City a
complaint for Rescission of Contract of
Sale of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas,
Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an
assessed value of 19,700. Appended to
the complaint is Amorsolos verification
and certification of non-forum shopping
executed in New York City, duly notarized

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by Mr. Joseph Brown, Esq., a notary
public in the State of New York. Brigod
filed a motion to dismiss the complaint on
the following grounds:

seizure by the court of the thing in


question, thus placing it in custodia legis.

(a)
The
court
cannot
acquire
jurisdiction
over
the
person
of
Amorsolo because he is not a resident
of the Philippines;BAR QUESTION (2009)

b) By provision of the law authorizing


the court to deal with property or subjectmatter within its territorial jurisdiction.

A: The ground raised lacks merit because


jurisdiction over the person of a plaintiff
is acquired by the court upon the filing of
plaintiffs complaint therewith. Residency
or citizenship is not a requirement for
filing a complaint, because plaintiff
thereby submits to the jurisdiction of the
court.
3. JURISDICTION OVER THE ISSUES is
the power of the court to try and decide
the issues raised in the pleadings of the
parties (Reyes vs. Diaz, 73 Phil. 484, 487)
A: How is jurisdiction acquired and
conferred over the issues?
a) By the allegations in the pleadings of
the parties;
b) By the agreement of the parties in a
pre-trial order or stipulation; or
c) By their implied consent as by failure
of a party to object to evidence on an
issue not covered by the pleadings, as
provided in Sec. 5, Rule 10.
4. JURISDICTION OVER THE RESis the
power of the court to try a case which
would bind real or personal property or
determine the status of a party.
Q: How is jurisdiction acquired over
the res?
A:

a) By the actual or constructive

Example: Attachment or Garnishment;

Example:
Land
registration
proceedings or suits involving civil status
or real property in the Philippines.
Q: Distinguish jurisdiction from venue.
(BAR 2006)
A: JURISDICTION treats of the power of
the Court to decide a case on the merits,
while VENUE refers to the place where
the suit may be filed. . Jurisdiction is a
matter of substantive law; venue, of
procedural law. Jurisdiction may be not
be conferred by consent through waiver
upon a court, but venue may be waived,
except in criminal cases
In criminal actions, however, venue is
jurisdictional. (Nocum et al. v. Tan, G.R.
No. 145022, September 23, 2005; Santos
III v. Northwest Airlines, G.R. No. 101538,
June 23, 1992).
JURISDICTION

VENUE

The authority to hear


and determine a case.

The place where the


case is to be heard or
tried.

Matter of substantive
law.

Matter of procedural
law

Establishes a relation
between the court
and
the
subject
matter

Establishes a relation
between plaintiff and
defendant,
or
petitioner
and
respondent.

Fixed by law and


cannot be conferred
by the parties.

May be conferred by
the act or agreement
of the parties.

question that same jurisdiction (Tijam v.


Sibonghanoy, G.R. No. L- 21450, April 15,
1968).

Lack of jurisdiction
over
the
subject
matter is a ground for
a
motu
proprio
dismissal.

Not a ground for


motu
proprio
dismissal except in
summary procedure.

CLASSIFICATION OF JURISDICTION
a. As to
Cases Tried

Authority of the court to


hear and determine all
actions and suits.
2. Limited Jurisdiction

HOW JURISDICTION IS CONFERRED


AND DETERMINED
Q: WHEN is Jurisdiction Determined?
A: Jurisdiction is determined by the law
at the time of the filing of the complaint.
The jurisdiction of a court to try a
criminal action is determined by the law
in force at the time of instituting the
action and not at the time of the
commission of the crime.

b. As to
Nature of the
Cause

Q: How is jurisdiction determined?


It is determined by the allegations set
forth in the complaint; and it is not
waived, except through Estoppel by
Laches.
General rule: The defense of lack of
jurisdiction cannot be waived and may be
raised at any stage of the proceeding even
on appeal since it is conferred by law (De
Leon vs. Court of Appeals, 245 SCRA 166,
1995).

c. As to.
Nature and
Extent of
Exercise

Authority of the court to


hear
and
determine
particular cases only.
3.
Original
Jurisdiction
It is exercised by a court
or body in the first
instance. It refers to the
power of the court to
take cognizance of a case
at
its
inception
or
commencement.
4.
Appellate
Jurisdiction
It is exercised by a court
or body over a case
elevated to it by way of
review.
5.Exclusive
Jurisdiction

It is exercised by a court
or body to the exclusion
of all other courts.
6.Concurrent
Jurisdiction
It is exercised over a case
or subject matter by two
or more courts or bodies.

Exception: A party may be barred from


raising the defense of lack of jurisdiction
or jurisdiction may be waived on the
ground of estoppel by laches.
A party cannot invoke the jurisdiction of a
court to secure affirmative relief against
his opponent and, after obtaining or
failing to obtain such relief, repudiate or

1. General Jurisdiction

d. As to Situs

7.Territorial
Jurisdiction

8
It is exercised within the
limits of the place where
the court is located.

I.

Q: How shall the Rules of Court be


construed? (BAR 1998)

8.
Extra-Territorial
Jurisdiction
It is exercised beyond the
the confines of the
territory where the court
is located.

A: The Rules of Court should be liberally


construed in order to promote their
objective of securing a just, speedy and
inexpensive disposition of every action
and proceeding. (Sec. 6, Rule 1 1997
Rules of Civil Procedure.) However, strict
observance of the rules is an imperative
necessity when they are considered
indispensable to the prevention of
needless delays and to the orderly and
speedy dispatch of judicial business.
(Alvero vs. Judge de la Rosa, 76 Phil. 428)

CONCEPT OF RESIDUAL
JURISDICTION
This is the power of the trial court to
issue
protective
orders,
approve
compromises,
permit
appeals
of
indigent litigants, order execution
pending
appeal,
and
allow
the
withdrawal of appeal where the court is
normally
deemed
to
have
lost
jurisdiction over the case or the subject
matter involved in the appeal (Katon vs.
Palanca,G.R. No. 151149, September 7,
2004).
This stage is reached upon the
perfection of appeal but prior to the
transmittal of the original records or
records on appeal (Sec. 9, Rule 41).

RESIDUAL
JURISDICTION
That which would
remain with the
trial
court
notwithstanding
that the trial court
has
lost
jurisdiction
over
the subject matter
of the case.

RESIDUAL
PREROGATIVE
This is the power
of the courts to
dismiss an action
motu propio upon
the
grounds
mentioned
in
Section 1, Rule 9

FUNDAMENTAL PRINCIPLES

LIBERAL CONSTRUCTION
PRINCIPLE

The rules of procedure are tools designed


to facilitate the attainment of justice, and
courts must avoid their strict and rigid
application which would result in
technicalities that tend to frustrate rather
than
promote
substantial
justice.
(Douglas F. Anama vs. Philippine Savings
Bank, G.R. No. 187021, January 25,
2012)
II.

PRINCIPLE
HIERARCHY

OF

JUDICIAL

It means that the lower courts shall


initially decide a case before it is
considered by a higher court. A higher
court will not entertain direct resort to it,
unless the redress desired cannot be
obtained in the appropriate courts (St.
Martin Funeral Home vs. NLRC, G.R No.
130866, September 16, 1998).
Q: May the Supreme Court directly
issue original writs of certiorari,
prohibition, mandamus, quo warranto
and habeas corpus?
A:No. The Principle of Judicial Hierarchy

mandates that the above-mentioned


petitions should be filed with the court of
lower level unless the importance of the
issue involved deserves the action of a
higher court.
While the Supreme Court, the Court of
Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue
original writs of certiorari, prohibition,
mandamus, quo warranto and habeas
corpus, such concurrence does not
accord litigants unrestrained freedom of
choice of court to which filing thereof may
be directed (Santiago vs. Vasquez, G.R
Nos.99289-90,January 27, 1993).
PURPOSE OF THE PRINCIPLE OF
JUDICIAL HIERARCHY
Supreme Court is a court of last resort
and must remain to be so in order for it to
satisfactorily perform its constitutional
functions, thereby allowing it to devote its
time and attention to matters within its
exclusive jurisdiction and preventing the
overcrowding of its docket.
I.

DOCTRINE OF JUDICIAL
STABILITY/DOCTRINE OF NONINTERFERENCE

The doctrine means that Courts of equal


and
coordinate
jurisdiction
cannot
interfere with the orders of each other. A
court is barred from reviewing judgments
of a co-equal court over which it has no
appellate jurisdiction nor power of review.
Q: Is the doctrine of judicial stability
applicable to administrative agency?
A: Yes. The doctrine applies with equal
force to administrative bodies. When the
law provides for an appeal from the
decision of an administrative body to the
SC or CA, it means that such body is co-

equal with the RTC in terms of rank and


stature, and logically beyond the control
of the latter. Citing Sinter Corporation and
Phividec Industrial Authority v. Cagayan
Electric Power and Light Co., Inc., G.R. No.
127371, 25 April 2002.
II.

DOCTRINE OF PRIMARY
JURISDICTION
General rule:
The doctrine of primary jurisdiction
means that court cannot or will not
determine a controversy involving a
question which is within the jurisdiction
of an administrative tribunal prior to
resolving the same, where the question
demands
the
exercise
of
sound
administrative discretion requiring special
knowledge, experience and services in
determining technical or intricate matters
of fact. (Omictin vs. Court of Appeals, G.R.
No. 148004, January 22, 2007)
Exceptions:
1. Where the findings are not supported
by evidence.
2. Where the findings are vitiated by
fraud, imposition, or collusion.
3. Where the procedure which lead to the
factual findings are irregular.
4. When palpable errors are committed.
5. When grave abuse of discretion,
arbitrariness
or
capriciousness
is
manifested.
MEMORANDUM
OF
AGREEMENT
BETWEEN THE DOJ AND OFFICE OF
THE OMBUDSMAN
Effective 29 April 2012, under a
Memorandum of Agreement between the

10
DOJ and the Office of the Ombudsman
(OMB), both offices agreed on the
following for jurisdiction:
1. The OMB has the primary jurisdiction
in
the
conduct
of
preliminary
investigation and inquest proceedings
over complaints for crimes cognizable by
the Sandiganbayan.
2. If, upon the filing of a complaint, the
prosecution office of the DOJ determines
that the same is for a crime falling under
the
exclusive
jurisdiction
of
the
Sandiganbayan, it shall advise the
complainant to file it directly with the
OMB: Provided, That in case a
prosecution office of the DOJ receives a
complaint that is cognizable by the
Sandiganbayan, it shall immediately
endorse the same to the OMB: Provided
further, That in cases where there are
multiple
respondents
in
a
single
complaint and at least one respondent
falls within the jurisdiction of the
Sandiganbayan, the entire records of the
complaint shall be endorsed to the OMB.
3. The OMB and the prosecution offices
of the DOJ shall have concurrent
jurisdiction over complaints for crimes
involving public officers and employees
falling outside the exclusive jurisdiction of
the Sandiganbayan: Provided, That the
office where such a complaint is filed for
preliminary investigation shall acquire
jurisdiction over the complaint to the
exclusion of the other: Provided further,
That the OMB may refer/endorse any
complaint filed before it to any
prosecution office of the DOJ having
jurisdiction over the complaint.
4.
The
Prosecutor
General
or
provincial/city prosecutors shall resolve
cases referred by the OMB to the DOJ for
preliminary investigation without need of
approval from the OMB.

5. In cases where the preliminary


investigation was conducted by the OMB
but referred to the DOJ for prosecution,
reinvestigation, if ordered by the court
shall be conducted by the OMB.
III.

DOCTRINE OF ADHERENCE TO
JURISDICTION OR PRINCIPLE OF
CONTINUITY OF JURISDICTION
The doctrine means that once jurisdiction
has attached to the court, it cannot be
ousted by the happening of subsequent
events, although of a character which
would have prevented jurisdiction from
attaching in the first instance.
The court, once jurisdiction has been
acquired, retains that jurisdiction until
finally disposes of the case (Baritua vs.
Mercader, G.R No. 136048, January 23,
2001).

CIVIL CASES

JURISDICTION OF

Regional Trial Court

Metropolitan Trial Courts,


Municipal Trial Courts and
Municipal Circuit Trial Courts

1. Exclusive
Original

1. Actions or claims involving the ff.:


(PPAS)

1. Actions or claims involving the ff :


(PPAS)

a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money

a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money

whose gross value does not exceed


P400,000
in
Metro
Manila
and
P300,000 outside Metro Manila (Sec.33
B.P 129)

whose gross value exceeds P400,000


in Metro Manila and P300,000 outside
Metro Manila (Sec. B.P 129)

NOTE: Exclusive of costs,litigation,attorneys fees, interest,damages of whatever


kind. (CLAID)
NOTE: The exclusion of the term "damages of whatever kind in determining the
jurisdictional amount applies to cases where the damages are merely incidental
to or consequence of the main cause of action.
If the claim of damages is the main cause of action or one of the causes of action
the amount of such claim shall be considered in determining the jurisdiction of
the court.
2. Actions involving title or possession
of real property.

2. Actions involving Title or possession


of real property.

Assessed Value: Does not EXCEED


P50,000 in Metro Manila, or P20,000
outside Metro Manila, exclusive (CLAID)

Assessed Value: EXCEEDS P50,000 in


Metro Manila, or P20,000 outside
Metro Manila, exclusive of (CLAID).

NOTE: Assessed valuation of property is important if the property involved is real


property.If the property involved is personalproperty, the basis of jurisdiction the
court is the valuation alleged by the plaintiff in the complaint.
NOTE: In cases where the defendant raises the question of ownership and the
question of possession cannot be resolved without deciding on the issue of
ownership, the issue of ownership shall be resolved only to determine the

11

12
issue of possession; (PROVISIONAL DETERMINATION)
3. Cases falling under the 1991 Rules
on Summary Procedure:
a. Forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered;
NOTE: Where attorneys fees are
awarded, the same shall not exceed
P20,000;
b. All other cases, except probate
proceedings, where total claim does
not exceed P200,000.00 in Metro
Manila, or P100,000 outside Metro
Manila, exclusive of interest and costs.
4. Cases falling under the 1991 Rules
on Summary Procedure:
Value of claim does not exceed Two
Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs (Sec. 2
A.M. NO. 08-8-7-SC Feb. 1, 2016 ).
Claim or demand may be:
(a) For money owed under any of the
ff:
1.
2.
3.
4.
5.

Contract
Contract
Contract
Contract
Contract

of
of
of
of
of

Lease;
Loan;
Services;
Sale; or
Mortgage;

(b) For liquidated damages arising


from contracts;
(c) The enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim covered
by this Rule pursuant to Sec. 417 of
Republic Act 7160, otherwise known as

3. Actions the subject matter of which


is
incapable
of
pecuniary
estimation.
Examples: Action for reformation of
contract,
action
for
specific
performance (Civil Procedure,,RIANO,
2014 ,p.154)
4. Cases not within the exclusive
jurisdiction of any court, tribunal ,
person or body exercising judicial or
quasi-judicial
(GENERAL
JURISDICTION)

5. Under Sec.5.2 of the Securities and


Regulations Code to hear and decide:
a. Cases involving devices or schemes
employed by or any acts, of the Board
of officers or partnership, amounting
to fraud and misrepresentation.
b. Controversies arising out of intracorporate or partnership relations;
c. Controversies in the elections or
appointment of directors, trustees,
officers or managers of corporations,
partnerships or associations.
d.
Petitions
of
corporations,
partnerships or associations to be
declared in a state of insolvency.
6.Cases
involving
violations
Intellectual Property Rights;

of

7. Citizen suit (Sec. 41 of the Clean


Air Act).

The Local Government Code of 1991.

2.Delegated

5. Inclusion and exclusion of voters


(B.P. 881,Sec.138)
Cadastral and land registration cases
assigned by the SC where there is:
a) no controversy or opposition over the
land, or
b) there is controversy, the contested
lot valued at not more than P100,000.

3.
Special

Petition for habeas corpus or


application for bail in criminal cases
in the absence of all RTC Judges in a
province or city (BP 129, as amended,
Chapter III, Sec. 35)

A. with RTC:
4.Concurrent
Jurisdiction:

1. Actions or claims involving the ff.:


(PPAS)
a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money
2. Actions involving title or possession
of real property.

SC may designate certain branches of


RTC to handle exclusively the ff.
cases,
not
falling
within
the
jurisdiction of any quasi-judicial
bodies and agencies:
1.Criminal
2. Juvenile and Domestic relations
3. Agrarian
4. Urban Land Reform
5. Special cases as the SC may
determine.(B.P 129 as amended
Sec.23 )
A. with the SC
Actions affecting ambassadors, public
ministers
B. with the SC and CA
1. Petitions for certiorari,
prohibition and mandamus
against lower courts and
bodies; and
2.Petitions for habeas corpus
and quo warranto
3.Petition for continuing
mandamus pursuant to the
Rules of Procedure for
Environmental Cases (A.M. No.
09-6-8-SC, effective 29 April
2010)

13

14
C. with the SC, CA and
Sandiganbayan
Petition for writ of amparo and habeas
data
D. with the Insurance Commisioner
Single claim not exceeding
5,000,000(Insurance Code as
amended by R.A 10607,Sec. 439 )
5. Appellant

Allcases decided by the MTCs in


their respective territorial jurisdiction

JURISDICTIONOFFAMILYCOURTS
In areas where there are no family courts, the ff. cases shall be adjudicated by the RTC.
1. Petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
2. Petitions for adoption of children and the revocation thereof;
Exclusive Original

3. Complaints for annulment of marriage, declaration of


nullity of marriage and those relating to marital status and
property relations of husband and wife or those living together
under different status and agreements, and petitions for
dissolution of conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought
provisions of E.O. No. 209 or the Family Code;

under

the

6. Petitions for declaration of status of children as


abandoned, dependent o neglected children, petitions for
voluntary or involuntary commitment of children; the
suspension, termination, or restoration of parental authority
and other cases cognizable under P.D. No. 603, E.O. No. 56,
(Series of 1986), and other related laws;

7. Petitions for the constitution of the family home; and


8. Cases of domestic violence against women and children,
as defined in sec. 5(k), R.A. 8369, but which do not constitute
criminal offenses subject to criminal prosecution and penalties
9. Cases covered by Juvenile Justice and Welfare Act (RA 9344)

SHARI'A COURT (P.D 1083)


1. Exclusive ORIGINAL
NOTE: The Sharia District
Courts are equivalent to the
RTC in rank which were
established
in
certain
provinces
of
Mindanao
where the Code of Muslim
Personal
Laws
of
the
Philippines is enforced. (P.D.
No. 1083)

1. All cases involving custody, guardianship, legitimacy,


paternity and filiation arising under PD No. 1083;
2. All cases involving disposition, distribution and
settlement of the estate of a deceased Muslim, probate
of wills, issuance of letters of administration or
appointment of administrators or executors regardless of
the nature or the aggregate value of the property;
3. Petitions for declaration of absence and death and
for cancellation and correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of P.D. No.
1083;
4.All actions arising from customary contracts in which
the parties are Muslims, if they have not specified which
law shall govern their relations;
5.All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all auxiliary writs and
processes in aid of its appellate jurisdiction (Art. 143[1]).

2. Concurrent with
EXISTING CIVIL COURTS

1. Petitions by Muslim for the constitution of the family


home, change of name and commitment of insane person
to any asylum;
2. All other personal and real actions not mentioned in
paragraph 1(d) wherein the parties involved are Muslims
except those for forcible entry and unlawful detainer
which shall fall under the exclusive original jurisdiction of
the Municipal Circuit Courts; and
3. All special civil actions for interpleader or declaratory
relief where the parties are Muslims or the property
involved belong exclusively to a Muslim (Art. 143[2]).

15

16

3. APPELLATE

All cases tried in the Sharia Circuit Court within their


territorial jurisdiction.
NOTE: The Sharia District Court shall decide every case
appealed to it on the basis of the evidence and records
transmitted as well as such memoranda, briefs or oral
arguments as the parties may submit (Art. 144[2]).

NOTE: The decisions of the Sharia District Courts whether on appeal from the Sharia
Circuit Courts or not, shall be final. The Supreme Court shall, however, continue to
exercise original and appellate jurisdiction over certain issues as provided by the
Constitution (Art. 145).

Court of Tax Appeals (CTA)


1. Exclusive
ORIGINAL

1. Over all criminal cases arising from violation of NIRC of the TCC
and other laws, part of laws, or special laws administered by the
BIR or the BOC where the principal amount of taxes and fees,
exclusive of charges and penalties claimed is less than P1M or
where there is no specified amount claimed;
2. In tax collection cases involving final and executor assessments of
taxes, fees, charges and penalties where the principal amount of
taxes and fees, exclusive of charges and penalties claimed is less
than P1M tried by the proper MTC, MeTC and RTC.

2. APPELLATE

1. In criminal offenses (1) over appeals from the judgments,


resolutions, or orders of the RTC in tax cases originally decided by
them, in their respective territorial jurisdiction and (2) over
petitions for review of the judgments, resolutions or orders of the
RTC in the exercise of their appellate jurisdiction over tax cases
originally decided by the MeTCs, MTCs,and MCTCs in their
respective jurisdiction;
2. In tax collection cases (1) over appeals from the judgments,
resolutions, or orders of the RTC in tax collection cases originally
decided by them, in their respective territorial jurisdiction and (2)
over petitions for review of the judgments, resolutions or orders of
the RTC in the the exercise of their appellate jurisdiction over tax
collection cases originally decided by the MeTCs, MTCs,and
MCTCs in their respective jurisdiction.
1. Decisions of CIR in cases involving disputed assessment,
refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the
NIRC or other laws administered by the BIR;

Exclusive
original or
appellate to
review by appeal

2. Inaction by the CIR in cases involving disputed assessment,


refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the
NIRC or other laws administered by the BIR where the NIRC or
other applicable law provides s specified period of action, in
which case the inaction shall be deemed an implied denial;
3. Decisions, orders or resolutions of the RTCs in local taxes
originally decided by them in the exercise of their original and
appellate jurisdiction;
4. Decisions of the Commissioner of Customs (1) in cases involving
liability for customs duties, fees or other charges, seizure,
detention or release of property affected, fines, forfeiture, or
other penalties in relation thereto, or (2) other matters arising
under the Customs law, or other laws, part of laws or special
laws administered by BOC;
5. Decisions of the Central Board of Assessment Appeals in the
exercise of appellate jurisdiction over cases involving
assessment and taxation of real property originally decided by
the provincial or city board of assessment appeals;
6. Decision of the Secretary of Finance on custom cases elevated
to him automatically for review from the decisions of the
Commissioner of Customs which are adverse to the government
under section 2315 of the TCC;
7. Decisions of the Secretary of Trade and Industry I the case of
non- agricultural product, commodity or article and the
secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302 of TCC and
safeguard measures under RA **)), where the party may appeal
the decision to impose or not to impose said duties. (RA 9282
and Rule 5, AM 05-11-07-CTA)

SANDIGANBAYAN

17

18
1. Civil cases filed pursuant to E. O. Nos. 1, 2, 14 and 14
-A (PCGG cases for recovery of ill-gotten wealth)
Three conditions:

Sandiganbayan

1. What offenses: offenses must be cognizable by the


Sandiganbayan (Hannah Serana vs. Sandiganbayan,
G.R. No. 162059, January 22, 2008).
2. Offender: offender must be a public officer (Escobal
vs. Garchitorena, G.R. No. 124644, February 5, 2004).
3.How committed: it must be committed in relation to
their public office (Lacson vs. Executive Secretary, G.R.
No. 128096, January 20, 1999).

a. with the SC

1. Petitions for certiorari, prohibition,


corpus, injunction and other ancillary
appellate jurisdiction including quo
cases falling under E.O.s 1, 2, 14, 14
recovery of ill-gotten wealth)

b. with the SC, CA and RTC

2. Petition for writ of amparo and habeas data

2. Concurrent

APPELLATE

mandamus, habeas
writs in aid of its
warranto arising in
-A (PCGG cases for

Final judgments, resolutions or orders of RTC whether in


the exercise of their original or appellate jurisdiction (RA
8249) over crimes and civil cases falling within the original
exclusive jurisdiction of the Sandiganbayan but which were
committed by public officers below SG 27.

COURT OF APPEALS (CA)


1. Exclusive
ORIGINAL

2. Concurrent
a. with the SC

Actions for annulment of judgments of RTC

1. Petitions for certiorari, prohibition or mandamus against


RTC, Civil Service Commission, Central Board of
Assessment Appeals, Other quasi-judicial agencies & NLRC
2. Petition for Writ of Kalikasan pursuant to the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

b. with SC and RTC

1. Petitions for certiorari, prohibition or mandamus against


courts of the first level and other bodies; and
2. Petitions for Habeas Corpus and Quo Warranto
3. Petition for continuing mandamus pursuant to the Rules
of Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

c. with SC,
Sandiganbayan and RTC

1. Petition for Writ of Amparo (Sec. 3, Rule on the Writ of


Amparo); and
2. Petition for a Writ of Habeas Data (Sec. 3, Rule on the Writ
of Habeas Data)

APPELLATE

1. Ordinary Appeals from RTC, except in cases exclusively


appealable to the SC, Family Courts and Special Commercial
Courts
2. Appeal by Petition for Review from Civil Service
Commission, SEC, Land Registration Authority, Social
Security Commission, Office of the President and any other
quasi-judicial agency, instrumentality, board or commission
in the exercise of its quasi-judicial functions
3. Petitions for Review from RTC in cases appealed thereto
from the lower courts

SUPREME COURT
1. Exclusive ORIGINAL

2. Concurrent
a. with the CA

Petitions for certiorari, prohibition or mandamus against CA,


COMELEC, COA, CTA and Sandiganbayan.
1. Petitions for certiorari, prohibition or mandamus against
RTC, Civil Service Commission, Central Board of
Assessment Appeals, Other quasi- judicial agencies and
NLRC
2. Petition for Writ of Kalikasan pursuant to the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

19

20

b. with the CA and RTC

1. Petitions for certiorari, prohibition or mandamus against


courts of the first level and other bodies; and
2. Petitions for Habeas Corpus and Quo Warranto
3. Petition for continuing mandamus pursuant to the Rules
of Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
effective 29 April 2010)

c. with RTC
d. with CA, RTC and
Sandiganbayan

APPELLATE

Actions affecting ambassadors, other public ministers and


consuls
1. Petition for Writ of Amparo; and
2. Petition for a Writ of Habeas Data
1. Petitions for Review on Certiorari against the CA,
Sandiganbayan, CTA en banc, Final judgment or order in
a Writ of Amparo or Habeas Data case and RTC in cases
involving:
2. Constitutionality or validity of a treaty, international or
executive
agreement,
law,
presidential
decree,
proclamation, order, instruction, ordinance or regulation
3. Legality of a tax, impost, assessment, toll or a penalty in
relation thereto
4. Jurisdiction of a lower court,
5. Pure error or question of law.

INCAPABLE PECUNIARY ESTIMATION


Q: What is meant by a civil action
where subject of litigation is incapable
of pecuniary estimation?
A: It is an action incapable of pecuniary
estimation is one where the primary relief
sought is not a claim for sum of money or
assertion of title to or possession of
personal or real property, but some other
primary relief which cannot be valued in
terms of money (Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure,

Riguera, 2nd ed., 2013) .


Examples of actions where the subject
of litigation is incapable of pecuniary
estimation:
1. Specific performance
2. Rescission or annulment of
contract
3. Injunction
4. Declaratory Relief

5. Reformation of contract
6. Action for revival of judgment
7. Citizen suit (Sec. 41, Clean Air Act
of 1999)
8. Support
9. Actions questioning the validity of
a mortgage
10. Annulling a deed of sale or
conveyance
BARANGAY CONCILIATION
Q: What disputes are required to
undergo amicable settlement before
the lupon of a barangay?
A: Disputes between parties actually
residing in the same city or municipality.
EXCEPT: (GPO-NBD-PCE-ACW)
1. Where one party is the government, or
any subdivision or instrumentality
thereof; where the government is just
one of three or more parties, referral to
the lupon is still mandatory (Gegare v.
CAG.R. No.83907, September 13,
1989) .
2. Where one party is a public officer or
employee, and the dispute relates to
the performance of his official
functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000;
4. Offenses where there is no private
offended party;
5. Where

the

dispute

involves

real

properties located in different cities or


municipalities unless the parties
thereto
agree
to
submit
their
differences to amicable settlement by
an appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and
the parties thereto agree to submit
their differences to amicable settlement
by an appropriate lupon;
7. Such other classes of disputes which
the President may determine in the
interest of justice or upon the
recommendation of the Sec. of Justice;
(Sec. 408, R.A. 7160)
8. Where the dispute arises from the
Comprehensive
Agrarian
Reform
Law(Secs. 46 & 47, RA. Np. 6657)
9. Labor disputes or controversies arising
from
employer-employee
relations
(Montoya vs. Escayo, 171 SCRA 442)
10. An action for annulment of a
compromise judgment. (Sanchez v.
Tupaz, G.R. No. 76690 February 29,
1988)
Reason: It is immediately executory
and accordingly, beyond the authority
of the Barangay Court to change or
modify. (Sanchez v. Tupaz,G.R.No.
76690 February 29, 1988)
11. Any
complaint
by
or
against
corporations, partnership or juridical
entities (Vda. De Borromeo v. Pogoy,
126 SCRA 217, 1983)
12. Proceedings where relief is sought
under R.A. No. 9262 or the AntiViolence against Women and their
Children Act (Sec. 33, R.A.No. 9262)

21

22

APPLICABLE TO NATURAL PERSONS


Referral of a dispute to the Lupon is
required only in cases involving natural
persons, and not where any of the parties
is a juridical person such as a
corporation, partnership, corporation
sole, testate or intestate, estate, etc. (Vda.
DeBorromeo v. Pogoy, G.R. No. L-63277.
November 29, 1983)
As cited in the case Sanchez v. Tupaz,
referral to the Lupon is compulsory (as
ruled in the cited case of Morato vs. Go,
125 SCRA 444), [1983] and noncompliance of the same could affect the
sufficiency of the cause of action and
make the complaint vulnerable to
dismissal on the ground of lack of cause
of action or prematurity (Peregrina vs.
Panis, 133 SCRA 75).

Q: What are the instances where


parties may go directly to court
without the need of prior barangay
conciliation?
A: The following are the instances:
1.

Where the
detention

accused

is

under

2. Where a person has otherwise


been
deprived
of
personal
liberty calling for habeas corpus
proceedings;
3. Where actions are coupled with
provisional remedies such as
preliminary
injunction,
attachment, replevin and support
pendent lite; and

4. Where the action may otherwise


be barred by the statute of
limitations. (Section 412, LGC)
Venue of the barangay conciliation
1. Disputes between or among persons
actually residing in the same barangay
shall
be
brought
for
amicable
settlement before the Lupon of said
barangay.
2.Actual residents of different barangays
within the same city or municipality
shall be brought in the barangay where
the respondent or any of the
respondents actually resides, at the
election of the complainant
3. All disputes which involved real
property or any interest therein shall
be brought in the barangay where the
real property or any part thereof is
situated.
4. Disputes arising at the workplace
where the contending parties are
employed or at the institution where
the contending parties are enrolled to
study, the barangay where such
workplace or institution is located.
(Sec. 409, LGC).
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise the same shall be
deemed waived.
The parties may, at any stage of the
proceedings, agree in writing that they
shall abide by the arbitration award of the
lupon chairman or the pangkat.
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment of a court upon the
expiration of 10 days from the date

thereof, unless repudiation of the


settlement has been made or a petition to
nullify the award has been filed before the
proper MTC within the said 10-day
period. (Sec. 416, LGC)

(Flores
v.
Mallare-Philips,
September24, 1986).

L-66620,

The amicable settlement or arbitration


award may be enforced by execution by
the lupon within 6 months from the date
of the settlement. It is not the sheriff or
the court officer who enforces the same
but the Lupon itself. After such time, the
settlement may be enforced by action in
the appropriate MTC. (Sec. 417, LGC)
Q: What is the totality rule?
A: Where there are several claims or
causes of action between the same or
different parties embodied in the same
complaint, the amount of the demand
shall be the totality of the claims in all
causes of action, irrespective of whether
the causes of action arose out of the same
or different transactions.
NOTE: The causes of action in favor of
two ormore plaintiffs or against two or
more defendants should arise out of the
same transaction or series of transactions
and there should be a common question
of law or fact as provided in Sec. 6, Rule 3

CIVIL PROCEDURE

RULE 1
GENERAL PROVISIONS

The Rules of Court (effective July 1, 1997)


shall apply in all the courts, except as
otherwise provided by the Supreme Court
(Rule 1, Sec. 2).

IN WHAT CASES NOT APPLICABLE


These rules do not apply to:
23
24
25
26

1.Election cases;
2.Land registration;
3.Cadastral;
4.Naturalization;

23

24
27 5.Insolvency proceedings; and
28 6.Other cases not herein
provided for (Rule 1, Sec. 4)
These rules will be applied in the
aforementioned cases by analogy or in a
suppletory character and whenever
practicable or convenient.

Q: What is an action?
A: Action is the legal and formal demand
of one's right from another person made
and insisted upon in a court of justice
(The Bar Lecture Series, VOL.I, Civil
Procedure, RIANO, 2014,p.212).
COMMENCEMENT OF ACTION
(Rule 1, Sec. 5)
A civil action is commenced by:
Filing of the original complaint in court
and must be accompanied with the
payment of correct docket fees.

Q: When is
commenced?

an

action

deemed

A: A civil action is deemed commenced by


the filing of the original complaint in
court.
If an additional defendant is impleaded
in a later pleading:
The action is commenced with regard to
him on the date of filing of such later
pleading, irrespective of whether the
motion for its admission, if necessary, is
denied by the court.
Q: When is the motion for admission
necessary?

A: Only in cases where the amended


complaint is filed after the answer to the
original complaint.

PAYMENT OF DOCKET FEES


General rule: Docket fees MUST be
paidat thecommencement of the action.
Exception: Docket fees need NOT be paid
at thetime of filing of the complaint and
may be considered a lien on the judgment
in the following instances: (ATACHI)
1. The damages or claim arose after
the
filing
of
the
complaint/initiatory pleading or if
the court awards damages not
prayed for in the complaint
(Original Devt & Construction
Corp.v. CA, 202 SCRA 75;, Sec.2,
Rule 141);
2. Indigent
141);

litigant(Sec.

19,

Rule

3. Failure of the adverse party to


timely
raise
the
issue
of
nonpayment of the docket fee
(National Steel Corp. v. CA, G.R.
No. 123215, February 2, 1999);
4. Civil action instituted with the
criminal action where the moral,
exemplary,
nominal,
and
temperate
damages
are
not
specified in the complaint or
information (Sec. 1, Rule 141);
5. Petition for Writ of Amparo shall
be exempt from the payment of
docket and other filing fees (Sec. 1,
Rule on the Writ of Amparo).

6. Indigent petitioner for writ of


habeas data is exempt from
payment of docket or other lawful
fees. (Section 5, Rule on the Writ
ofHabeas Data A.M. No. 08-1-16
SC)
PRINCIPLES FOR PAYMENT OF
DOCKET FEES
23
24 1. A court acquires jurisdiction over
any case only upon the payment of the
prescribed docket fee, and in order to
curb
the
unethical
practice
of
misleading the docket clerk in the
assessment of the correct filing fee, the
SC laid down the rule that henceforth
all complaints, petitions, answers and
other similar pleadings should specify
the amount of damages beingprayed for
not only in thebody of thepleading
but also in the prayer therein, andsaid
damages shall be the basis for
assessing the amount of the filing fees.
(SC Circular No.7, March 24, 1988;
Manchester Development v. CA, No. L75919, May 7, 1987).
25 2.It is not simply the filing of the
complaint or appropriate initiatory
pleading, but the payment of the
prescribed docket fee that vests a trial
court with jurisdiction over the
subject-matter or nature of the action.
Where the filing of the initiatory
pleading is not accompanied by
payment of docket fee, the court may
allow payment of the fee within a
reasonable time but in no case beyond
the
applicable
prescriptive
or
reglementary period.
26 3.The same rule applies to permissive
counterclaims, third-party claims and
similar pleadings, which shall not be
considered filed until and unless the
filing fee prescribed therefor is paid.

4.Where the trial court acquires


jurisdiction over a claim by the filing of
the appropriate pleading and payment
of the prescribed filing fee but,
subsequently, the judgment awards
claim not specified in the pleading, or if
specified, the same has been left for
determination by the court, the
additional filing fee therefor shall
constitute a lien on the judgment (Sun
Insurance Office, Ltd., v.Asuncion, G.R.
Nos. 79937-38, February 13, 1989).
23 5.Payment of filing fees is also required
in cases of appeal (Sec. 5, Rule 40; Sec.
4, Rule 41; Sec.3, Rule 45).
6. Plainly, while the payment of the
prescribed docket fee is a jurisdictional
requirement, nonpayment of which at
the
time
of
filing
does
not
automatically cause the dismissal of
the case for as long as the fee is paid
within the applicable prescriptive or
reglementary period; more so when the
party
involved
demonstrates
a
willingness to abide by the rules
prescribing such payment. (Sps. Go v.
Tong, G.R. 151942, Nov. 27,2003)
7.An action seeking for the execution of
a deed of assignment of shares of stock
is an action for recovery of personal
property. The payment of docket fees
should be based on the value of the
shares of stock and the amount of
damages he seeks to recover. (NSC v.
Court of Appeals, G.R.No. 123215.
February 2, 1999)
CLASSIFICATIONS OF ACTIONS

IN GENERAL
1. Ordinary Civil Actions

25

26
1. It is one by which a party sues
another for:
a. The
enforcement
or
protection of a right, or
b. The prevention or redress
of a wrong
2. It may be ordinary or special
3. It is governed by ordinary rules.
2. Special Civil Actions
It is one which is also governed by the
rules of ordinary civil actions, but
subject
to
the
specific
rules
prescribed for such particular special
civil action.
SPECIAL CIVIL ACTIONS
COMMENCED/ INITIATED BY
COMPLAINTS
(FUF PIE)
1) Interpleader
2) Expropriation
3) Foreclosure of
Real Estate
Mortgage 4)
Partition
5) Forcible Entry /
Unlawful Detainer.

PETITIONS
(DQ ICE CREFP)
1) Declaratory Relief
and Similar Remedies
2) Review of
Adjudication of the
Constitutional
Commissions (COA
and COMELEC)
3) Certiorari,
prohibition and
mandamus
4) Ejectment
5) Expropriation
6) Partition
7) Foreclosure
8) Interpleader
9) Quo Warranto
10)Contempt.

NOTE: The venue of special civil actions


is governed by the general rules on venue,
except as otherwise indicated in the
particular rule for said special civil action
(Regalado).

3. Criminal Actions
It is one by which a party seeks to
establish for an act or omission
punishable by law.
4. Special Proceeding
1. It is a remedy by which a party
seeks to establish a status, a
right or a particular facts.
2. It is also governed by ordinary
rules but subject to specific
rules prescribed (R62-R71).
Ordinary Civil
Action
1. An ordinary suit in
court, by which one
party
prosecutes
another
for
the
enforcement
or
protection of a right,
or the prevention or
redress of a wrong.

Special Proceedings
1. An application or a
petition to establish
the status or a right
of a party or a
particular fact.

2. Governed by Rules
2-71 of ROC

2. Governed by Rules
72-109 of ROC and
other special laws.

3. Initiated by:
a. an action or
b. complaint;
requires the filing of
formal pleadings

3. Initiated by:
a. application or
b. petition or
c.
by
filing
motion.

4.
Two
adverse
Plaintiff
Defendant.

4.
definite
party/petitioner but
no definite adverse
party
(in
rem
proceeding)
5. Oppositor files an
Opposition.

definite
partiesand

5. Defendant files an
Answer.
6. A right is alleged to
exist and have been
violated

6. A right exists but


violation thereof is not
necessary since what
is sought is the
establishment of a

right,
status,
particular fact
7. Court of General
Jurisdiction

or

7. Court of Limited
Jurisdiction

ACTIONS ACCORDING TO SUBJECT


MATTER
1. Personal Actions
1. Actions founded on privity of
contract or for the enforcement or
resolution of a contract, or for
recovery o personal property (Feria
Noche, Civil Procedure Annotated,
Vol.I).
2. One which does NOT affect title
to or possession of real property or
interest therein (Riguera, PrimerReviewer on Remedial Law, Vol.I,
2013).
2. Real Actions
Actions affecting title to or the recovery
of possession of real property, or an
interest therein, or forcible entry and
detainer actions.
To be real action, it is not enough that the
action must deal with real property.
It is important that the matter in
litigation must also involve any of the
following issues:
1. Title to
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage, or
6. Any interest in real property (Riano)
3. Mixed Action
Pertain in some degree to both real and
personal, and reducible to neither of

them.
REAL ACTION

PERSONAL
ACTION

A real action is
local,
i.e.,
its
venue
depends
upon the location
of
the
property
involved
in
the
litigation

A personal action is
transitory, i.e., its
venue
depends
upon the residence
of the plaintiff or
the defendant at
the option of the
plaintiff (Riano).

Q: What is the importance of


distinguishing between a real action
and a personal action?
A: To determine the venue of the action
and the court having subject matter
jurisdiction thereof.
The venue for real actions is the proper
court which has jurisdiction over the area
wherein the real property involved, or a
portion thereof, is situated. (Section 1
R4).
On the other hand, venue of personal
actions lies in the place where the
plaintiff or any of the principal plaintiffs
resides or where the defendant or any of
the principal defendants resides at the
election of the plaintiffs. (Section 2 Rule
4)
Jurisdiction over real actions depends
upon the assessed value of the real
property involved. Jurisdiction over
personal actions depends upon the
amount of the claim or demand provided
that if the subject of the litigation is
incapable
of
pecuniary
estimation,
jurisdiction is vested in the RTC. (PrimerReviewer on Remedial Law, Vol.I, Civil

27

28
It is a proceeding where an individual
is named as defendant and the
purpose of the proceeding is to
subject his interest therein to the
obligation or lien burdening the
property.

Procedure, Riguera, 2nded., 2015, page 3)


ACTIONS ACCORDING TO VENUE
1. Local Actions
Actions which can only be
instituted in a particular place.

Ex. Quieting of title where the object


is in rem (real property) and the
subject is in personam (defendant).
The judgment entered in this
proceeding is conclusive only between
the parties (Feria Noche, Civil
Precdure, Vol.I).

2. Transitory Actions
The venue of which is generally
dependent upon the residence of
the parties regardless of where the
cause of action arise.
ACTIONS AS TO THE BINDING EFFECT
OF RELIEF SOUGHT
1. Actions In Personam
One which is directed against a
particular person and the relief
sought is binding upon such person.
Ex. Action for sum of money or for
specific performance.
2. Actions In Rem
One which is not directed against a
particular person but on the thing or
res itself and the relief sought is
binding upon the whole world.
The thing or res may be personal or
real property or it may be a status,
right or a particular fact (Riguera,
Primer-Reviewer on Remedial Law,
2009).
The object is to bar indifferently all
who might be minded to make any
objection against the right sought to
be enforced, hence the judgment
therein is binding theoretically upon
the whole world.

Whether a proceeding is in rem, or in


personam or quasi in rem it is
determined by its nature and purpose
(Yu v. Pacleb, GR. No. 172172, Feb. 24
2009).
In Personam

Quasi In Rem

1.
Action
against a
person on
the basis of
his personal
liability

2.
Jurisdiction
is over the
person

Action
against the
thing or
property
itself

Jurisdiction
is over the
res through
service of
summons
by:
a.
publication,
or

Action to subject
a partys interest
to the obligation
or lien burdening
the property

Jurisdiction over
the party is not
necessary; it is
enough that due
process is
observed

b. posting of
notices.

Ex. Expropriation (Regalado).


3. Quasi In Rem

In Rem

3.

It is

Summons is

Summons is
served
either:
a. personally,
or
b.
substituted
service

4. An
individual is
named as
defendant

sufficient
that
summons is
served by:
a.
publication,
and/or
b. posting of
notices

served
extraterritorially
if defendant is an
absent non
resident;

4. No
named
defendant

4. An individual
is named as
defendant

5.
Judgment is
conclusive
against the
whole world

5.
Judgment is
conclusive
between the
parties

in case of an
absent resident,
same as above or
by substituted
service

RULE 2
CAUSE OF ACTION
Cause of Action.
It is an act or omission by which a party
violates the right of another (Rule 2, Sec.
2 ROC).
Q:A contracted the services of B to
overhaul two aircrafts engines. Due to its
technical capability, B contracted the
services of C to do the work. A accepted
the overhauled engines and released the
amount to B but C was not paid for the
remaining balances despite the demands.
C filed a complaint before the RTC against
B and A to pay the balance plus interest.
CA dismissed the case against A because
the complaint does not state a cause of
action against A but granted its complaint
against B. Does C failed to sufficiently
state a cause of action?

A: Yes, according to the SC, cause of


action is defined as an act or omission by
which a party violates a right of another.
In pursuing that cause, a plaintiff must
first plead in the complaint a concise
statement of the ultimate or essential
facts constituting the cause of action.
The standard requires that every
pleading shall contain in a methodical
and logical form, a plain, concise and
direct statement of the ultimate facts on
which the party pleading relies for his
claim or defense, as the case may be,
omitting
the
statement
of
mere
evidentiary facts. [Magellan Aerospace
Corporation vs. Philippine Air Force,
Feb. 24, 2016]
Elements: (L-A- D)
1. A legal right of the plaintiff
2. A correlative duty of the defendant
to respect plaintiffs right
3. An act or omission of the defendant
in violation of the plaintiffs right
with
consequential
injury
or
damage to the plaintiff for which he
may maintain an action for
recovery or other relief (Relucio v
Lopez, GR No. 138479, June 16
2002).
Right of Action
The right to commence and prosecute an
action to obtain the relief sought.
Elements: (C-P-P)
1. Existence of the cause of action
2. Performance
of
all
conditions
precedent
3. The action must be instituted by the
proper party
Cause of Action

Right of Action

29

30
Act or mission by
which a party violates
the right of another
The delict or wrong
committed
by
the
defendant

The reason
action.

for the

The formal statement


of the operative facts
that gives rise to
remedial right
A matter of procedure
and depends on the
pleadings filed by the
parties
NOT
affected
by
affirmative defenses

Right to commence andA: The substantive right on the part of


prosecute an action tothe Plaintiff to sue for redress.
obtain the relief sought
CONDITIONS PRECEDENT TO FILING A
The right of the plaintiff
COMPLAINT
to institute the action as
a consequence of that 1. Barangay Conciliation (Secs. 399delict or wrong
422, Local Government Code);
2. Intra-Family Dispute
The remedy or means 3. Investigation by a fiscal is a
afforded
or
the
prerequisite
to
annulment
of
consequent relief.
marriage when defendant defaults
(Art. 151, Family Code);
The remedial right given 4. No suit shall be filed between
to a person because of
members of the same family unless
the occurrence of the
it should appear that earnest efforts
alleged facts
at compromise have been made but
the same have failed (Art. 2035, Civil
A matter of right and
Code)
depends on substantive 5. Citizens Suit (Sec. 41, Clean Air
law
Act);
6. Doctrine
of
Exhaustion
of
Administrative Remedies (DEAR);
Affected by Affirmative 7.Doctrine of Primary Jurisdiction;
defenses
8.Referral to Arbitration (Sec. 41, ADR
Act of 2004);
9.Payment of Docket Fees (Sec. 1,2, &
21 (a), Rule 141; Sec. 1, Rule 111).

Q: Plaintiff lent P500,000 to defendant.


The loan is secured by a real estate
morgage executed by X in favor of the
Plaintiff. The defendant failed to pay the
loan on the due date despite demand
from Plaintiff. (Riguera, Primer-Reviewer
on Remedial Law, Vol.I, 2015,page 69)

If conditions precedent are not complied


with, the remedy is to move for its
dismissal pursuant to Rule 16, Sec. 1 (j).

What is the cause of action of the


Plaintiff?

CAUSE OF ACTION IN PROCEEDINGS


FOR DECLARATORY RELIEF

A: The cause of action is the defendant's


non-payment of the loan on due date.
Q: What is the right of action of the
Plaintiff?

EFFECT OF FAILURE TO COMPLY


WITH CONDITIONS PRECEDENT

The concept and meaning of the term


cause of action in proceedings for
declaratory relief vis-- vis an ordinary
civil action, is BROADENED. It is not, as
in ordinary civil action, the wrong or
delict by which the plaintiffs rights are
violated, but it is extended to a mere
denial, refusal or challenge raising at least

an uncertainty or insecurity which is


injurious to plaintiffs rights (Multi-Realty
Devt
Corp.
v.
Makati
Tuscany
Condominium Corp., G.R. No. 146726,
June 16, 2006 citing Moran, Vol. 3, 1970
Ed.).
Rationale: Courts should be allowed to
act, not only when the harm is actually
done and rights jeopardized by physical
wrongs or physical attack upon existing
legal relation, but also when challenge,
refusal, dispute, or denial thereof is made
amounting to a live controversy (Riguera,
Manuel R. Primer-Reviewer on Remedial
Law, Volume I, Civil Procedure, 2009).
EFFECT OF FAILURE TO STATE A
CAUSE OF ACTION
The remedy of the defendant is to move
for its dismissal under Rule 16, Sec.1 (g)
on the ground that the pleading asserting
the claim states no cause of action.
Test of Sufficiency of a Cause of Action
Whether or not admitting the facts
alleged, the court could render a valid
judgment upon the same in accordance
with the prayer in complaint (Misamis
Occidental II Cooperative Inc. v David, G.R.
No. 129928, August 25, 2005).

ONE SUIT FOR A SINGLE CAUSE OF


ACTION (SEC. 3)
A party may not institute more than one
suit for a single cause of action.
Splitting a Single Cause of Action and
Its Effects.(Rule 2, Sec. 4.)
If two or more suits are instituted on the
basis of the same cause of action, the
filing of one or a judgment upon the

merits in any one is available as a ground


for the dismissal of the others.
The act of dividing a single cause of
action, claim or demand into two or more
parts and bringing the suit for one of
such parts only, intending to reserve the
rest for another separate action is the
prohibited act of splitting a single cause
of action (Regalado).
Rationale:
1. Avoid multiplicity of suits
2. Protect
the
defendant
from
unnecessary
vexation
and
harassment
3. Avoid the costs and expenses
incident to numerous suits

Limitations of the Rule:


1. Applies only to where the action les
between the same parties.
2. Where the nature of relief is
cognizable by different tribunals,
the rule is not violated.
Example: An action to establish
plaintiffs filiation as illegitimate
children cognizable by the JDRC
and of a separate action for partition
of the estate of their deceased father
cognizable by the regular courts.
General Rules:
1. A contract to do several things at
several times is divisible, and
2. A judgment for a single breach of a
continuing contract is not a bar to a
suit for subsequent breaches.
Exception:
Where there is a complete and total
breach of a continuous contract for a

31

32
term of years, the recovery of a judgment
for damages by reason of the breach is a
bar to another action on the same
contract for and on account of the
continuous breach (Blossom & Co. v
Manila Gas Corp., GR No. L-32958, Nov 8
1930).
Effects:
The remedy of the defendant is to move
for its dismissal under Rule 16 when a
single cause of action is split on the
ground that:
1. There is another action pending
between the same parties for the
same cause, or litis pendentia
2. If the first action has already been
finally terminated on the ground of
res judicata

Q: What is the Principle of Anticipatory


Breach?
A: An unqualified and positive refusal to
perform
a
contract,
though
the
performance thereof is not yet due, may, if
the renunciation goes to the whole
contract, be treated as a complete breach
which will entitle the injured party to
bring his action at once (Blossom & Co. v
Manila Gas Corp., GR No. L-32958, Nov 8
1930; Danfoss Inc. v Continental Cement
Corp, GR No. 143788, Sept. 9 2005).
Q: Single Injury, Single Cause of Action
Theory?
A: The singleness of a cause of action lies
in the singleness of the delict or wrong
violating the rights of one person.
Nevertheless, if only one injury resulted
from several wrongful acts, only one
cause of action arises (Joseph v Bautista,
GR No. 41423, Feb 23 1989).
Joinder of Causes of Action

( Rule 2, Sec. 5)
The assertion in the alternative or
otherwise, of as many causes of action as
a party may have against another in one
pleading alone is valid.
Q: What are the rules governing joinder
of causes of action?
A: (JISM)
1. The party joining the causes of
action shall comply with the rules
on joinder of parties under Section
6, Rule 3.
2. The joinder shall NOT include
special civil actions governed by
special rules
3. Where the causes of action are
between the same parties but
pertain to different venues or
jurisdiction, the joinder may be
allowed in the RTC, provided that:
a. One of the causes of action
falls within the jurisdiction of
the RTC; AND
b. The venue lies therein
4. Where the claims in all the causes
of action are principally for
recovery of money, the aggregate
amount claimed shall be the rest of
jurisdiction (Totality Rule, Sec. 33
(1), BP 129).
Elements for Joinder of Parties:
1. There must be a right to relief in
respect to or arising from the same
transaction
or
series
of
transactions

2. There is a question of fact or law


common to all the plaintiffs or
defendants
3. Such joinder is not otherwise
proscribed by the provisions of the
Rules on jurisdiction and venue.
(Rule 3, Sec. 6)
Q: Is joinder of causes
mandatory or permissive?

of

action

A: The rule on joinder of causes of action


is purely permissive and the plaintiff can
always file separate actions for each cause
of action (Baldovir v Sarte, 36 Phil 550).

PARTIES TO CIVIL ACTIONS


Q: Who may be parties in a civil
action?
A: Only natural or juridical person or
entities authorized by law may be parties
in a civil action. (Rule 3, Sec.1)
PLAINTIFF
refers
to
the
claiming
party,
counter-claimant,
cross-claimant, or
third (fourth, etc.)
party plaintiff.

The rule on permissive joinder of causes


of action is subject to the rules regarding
jurisdiction, venue and joinder of parties.
Q: When is joinder of causes of action
compulsory?
A: When the joinder refers to joinder of
indispensable
parties,
joinder
is
compulsory (Rule 7, Sec. 3)
The provision allowing joinder of causes of
action which pertains to different
jurisdiction under Rule 2, Sec.5 (c)
applies only if joinder is in the RTC.
Misjoinder of Causes of Action
(Rule 2, Sec. 6)
Two or more causes of action are joined in
one complaint when they should not have
been joined.
Misjoinder of causes of action is NOT a
ground for dismissal of an action. A
misjoined cause of action may on motion
of a party or on the initiative of the court
be severed and proceeded with separately.

DEFENDANT
refers
to
the
original defending
party, defendant in
a
counter-claim,
cross-defendant,
or third (fourth,
etc.)
party
defendant.

Q: What are the requisites for a person


to be a party to a civil action?
A: Requisites:
1. Must be:
a. A natural or juridical person,
or
b. An entity authorized by law
2. Must have a legal capacity to sue
3. Must be a real party in interest.

Entities authorized by law


to be parties to a suit:
1. A corporation by estoppel.
2. A contract of partnership having a
capital of P3,000 or more but fails to
comply
with
the
registration
requirements is nevertheless liable
as a partnership to third parties
(Art.1772 in relation to Art.1768 of
New Civil Code).

RULE 3

33

34
3. The estate of a deceased person
(Limjoco v Intestate Estate of
Fragante, 8 Phil 776).
4. A legitimate labor organization (Art.
242 (e) of Labor Code).
5. The Roman Catholic Church and
the archbishop or diocese to which
they belong (Barlin v Ramirez, 7 Phil
47).
6. A dissolved corporation may prosecute
and defend suits by or against it
provided that the suits:
a. Occur within 3 years after its
dissolution, and
b. The suits are in connection with
the settlement and closure of its
affairs (Sec 122 of Corporation
Code).
7. A political party incorporated under
Act 1459 (now BP 68, Corporation
Code).
Under Sec.15 of this Rule, an entity,
which is not registered as a juridical
person
and
without
requisite
personality required of parties to a
suit, may at least be sued as a
defendant in the first instance so that
the members thereof shall be
disclosed by being required to be
individually named in the answer.
This exception is dedicated by the
need to identify its members since it is
from them that the plaintiff may seek
relief on his claim (Regalado).
As to properties of the Roman
Catholic Church, the Archbishop of
the diocese to which they belong may
be a party (Versoza v Fernandez, GR
No. L-25254, Nov 22 1926).
REAL PARTIES IN INTEREST (RPII),
INDISPENSABLE PARTIES,
REPRESENTATIVES,
NECESSARY PARTIES,

INDIGENT PARTIES,
ALTERNATIVE DEFENDANTS
Real Party In Interest (RPII)
(Rule 3, Sec.2)
The party who stands to be benefited or
injured by the judgment in the suit or the
party entitled to the avails of the suit.
To be a real party in interest, the interest
must be real, which is a present
substantial interest as distinguished from
a mere expectancy or a future, contingent
subordinate or consequential interest
(Fortich v Corona, 289 SCRA 624).
It is an interest that is material and direct
as distinguished from a mere incidental
interest in the question (Samaniego v
Aguila, 334 SCRA 438).
General Rule: Every action must be
prosecuted and defended in the name of
the real party in interest.
Exception: An exception to the rule that
every action must be prosecuted or
defended in the name of the real party in
interest is in the case of representatives
as parties under Rule 3, Sec,3.
Lack of Legal
Capacity to Sue
Refers to plaintiffs
general disability
to sue on account
of
minority,
insanity, lack of
juridical
personality
and
other
similar
disqualifications

Lack of Legal
Personality to Sue

Plaintiff is not the


real
party
in
interest.

A ground for a
motion to dismiss
pursuant
to

A ground for a
motion to dismiss
on the ground that

Rule16, Sec. 1(d).

the
complaint
states no cause of
action (Rule 16, Sec
1 [g]).

Note: The rule does not require that a


civil action be prosecuted by the real
party in interest. What Rule 3, Sec. 2
requires is that a civil action be
prosecuted in the name of but not
necessarily by the real party in interest.
Hence, an action is allowed to be
prosecuted
or
defended
by
a
representative or someone acting in a
fiduciary capacity but the beneficiary
shall be included in the title of the case
and shall be deemed to be the real party
in interest (Riguera, 2015)
CLASSIFICATION OF PARTIES IN
INTEREST:
1. Representative parties - someone
acting in a fiduciary capacity (i.e. trustees
of an express trust, guardians, executors
or administrators). In this case, the rule
requires that the name of the beneficiary
shall be included in the title of the case
and shall be deemed as the real party in
interest (Sec. 3).
2.Nominal / Pro forma parties - those
required under the rules to be joined as
co-parties in suits by or against another
party as may be provided by the
applicable substantive law or procedural
rule (i.e. spouses; Sec 4).
3. Indispensable parties - those without
whom no final determination can be had
of an action; they must be joined under
all conditions (Rule 3,Sec.7).

the court that the action should be


dismissed (Sepulveda, Sr. v. Pelaez, G.R.
No. 152195, 31 January 2005).
The court cannot proceed without their
presence. Any judgment rendered by the
court would be null and void.
Examples of indispensable parties:
1. In a partition suit, all the co-owners
are indispensable parties (Salvador v
CA, GR No. 109910, April 5 1995)
2. Action for recovery of land against
defendant, who is a tenant of a thirdparty who claims ownership, the
third part is an indispensable party.
3. Action for rescission filed by a
creditor to annul a fraudulent sale,
the vendor is an indispensable party.
4. Petition for certiorari and prohibition
filed by the Freedom from Debt
Coalition against MWSS seeking to
nullify the rate increases granted by
the
latter
to
concessionaries
Maynilad Water and Manila Water,
the
concessionaries
are
indispensable parties (Freedom From
Debt Coalition v MWSS, GR No.
173044, Dec 10 2007).
5. Petition for cancellation or correction
of entries in the civil registry, the
local registrar is an indispensable
party.
Note: The presence of all indispensable
parties is a condition sine qua non for the
exercise of judicial power. It is precisely
when an indispensable party is not before
the court that the action should be
dismissed.

The presence of all indispensable parties


is a condition sine qua non for the
exercise of judicial power. It is precisely
when an indispensable party is not before

35

36
Q: What is the effect of failure to
include Indispensable Parties?
A: The court cannot proceed without their
presence. Any judgment rendered by the
court would be null and void.

parties, or for a complete determination or


settlement of the claim subject of the
action; may or may not be joined.
Indispensable
Party

No
final
determination may
be had of an
action
if
an
indispensable
party
is
not
impleaded

Q: What are the the remedies in case


RPII is Not Impleaded?
A: 1. The pleadings or the complaint may
be amended to include the RPII.
2. A motion to dismiss may be filed on
the ground that the complaint states no
cause of action (Rule 16, Sec.1(g) ROC;
Regalado, 2010).
In Oposa v Factoran, GR No. 101083,
1993, minors represented by their
parents were held as real parties in
interest to file an action to annul timber
licenses issued by the state under the
following principles:
1. Inter-generational responsibility
2. Inter-generational justice
3. The right of the Filipinos to a
balanced and healthful ecology
4. Minors represent themselves and
the generation to come
4.Necessary Parties. (Rule 3, Sec. 8)
Those who are not indispensable but who
ought to be joined as a party if complete
relief is to be accorded as to those already

The court may


dismiss the case
for
failure
to
prosecute if the
plaintiff despite a
court order does
not implead an
indispensable
party (Rule 17,
Sec.3).

Necessary Party
A
final
determination may
be had of an
action even if a
necessary [arty is
not impleaded, but
is such a case
complete
relief
cannot
be
accorded, or there
will
be
an
incomplete
determination or
settlement of the
claim subject of
the action.
The failure by the
plaintiff
to
implead
a
necessary
party
despite
court
order,
will
not
result
in
the
dismissal of the
case but simply
the
waiver
of
plaintiffs
claim
against
such
necessary
party
(Rule 3, Sec.9).

Examples:
1. A joint obligor in a joint obligation.
2. A transferee pendent lite (Rule 3,
Sec.1).
The failure to implead the transferee
pendent lite would not affect the
validity of the judgment.

3. Actions to foreclose a real estate


mortgage, the junior mortgagees or
lienholders are necessary parties.
4. In a case of a co-owned property an
one of the co-owners files an
ejectment suit, the other co-owners
are necessary parties.
(Riguera, Primer-Reviewer on Remedial
Law, Vol.I, 2015).
5. Quasi parties
Those who are allowed by the court to
sue or defend in a class suit (Sec.12).
6. Nominal/ Pro Forma Parties
Those required under the rules to be
joined as co-parties in suits by or
against another party as may be
provided by the applicable substantive
law or procedural rule.
Spouse As Parties
(Rule 3, Sec.4)
General Rule: They shall sue or be sued
jointly
Exceptions:
1. Complete Separation of Property
2. If the action is against the other party

Notes:
1. In case of Pro forma parties who are
neither indispensable nor necessary,
the general rule under Rule 3, Sec.11
must be followed.
2. Non-joinder is not a ground for
dismissal.
In a case concerning an action to recover
a sum of money, the SC held that the
failure to join the spouse in that case was
not a jurisdictional defect. The nonjoinder of a spouse does not warrant
dismissal as it is merely a formal
requirement which may be cured by

amendment (Carandang v Heirs of de


Guzman, GR No. 160347, Nov. 29 2006).
Minor or Incompetent Persons
(Rule 3, Sec 5.)
A minor or a person alleged to be
incompetent, may sue or be sued with the
assistance of his father, mother, guardian
or if none, a guardian ad litem.
Minority or incompetency need not be
judicially declared as the rule only
requires that it be alleged.
Section 21. Indigent Parties
A party may be authorized to litigate his
action, claim or defense as an indigent if
the court, upon an ex parte application
and hearing is satisfied that the party is
one who has no money or property
sufficient and available for food, shelter
and basic necessities for himself and his
family.
Such
authority
shall
include
an
exemption from payment of docket and
other lawful fees and of transcripts of
stenographic notes which the court may
order to be furnished him.
The amount of the docket and other
lawful fees which the indigent was
exempted from paying shall be a lien on
any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant
of such authority at any time before the
judgment is rendered by the trial court.
Requisites
for
Exemption
from
Payment of Legal Fees. Refer to Rule
141, Sec.19.

37

38
1. Party must have a gross income and
that of their immediate family do not
exceed an amount double the monthly
minimum wage of an employee, and
2. Party do not own real property with a
fair market value as stated in the
current tax declaration of more than
P300,000
Conditions:
1. If the applicant for exemption meets
the salary and property requirements
under Rule 141, Sec.19 then the
grant of the application is mandatory.
2. If the applicant does NOT satisfy one
or both requirements, then the
application should not be out rightly
dismissed; instead, the court should
apply the indigency test under Rule
3, Sec.21 and use its sound discretion
in determining the merits of the
prayer for exemption (Algura v LGU,
GR No. 150135, Oct 30 2006).
Section 13. Alternative Defendants
Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of then as
defendant in the alternative, although a
right to relief against one may be
inconsistent with a right to relief against
the other.
TYPES OF JOINDER OF PARTIES
A. Permissive - Sec. 6
B. Compulsory - Indispensable Parties
(Sec. 7)
C. Proper or Necessary -Sec. 8
A. Permissive Joinder of Parties
(Rule 3, Sec.6)
Requisites:
1. There must be a right to relief in
respect to or arises out of the

same transaction or series of


transactions.
2. There is a question of law or fact
common to all the plaintiffs or all
the defendants.
3. Such joinder is not proscribed by
the provisions of the rules on
jurisdiction and venue.
Series of Transaction means
dealings with the parties but all
dealings are directly connected
same type of subject matter of
(Regalado).
Joinder of
Cause of Action
Party
asserts
various
claims
against the same
or several parties
in
one
single
complaint.

separate
of which
with the
the suit

Joinder of Parties
There are various
causes of action
that accrue in favor
of one or against
one
or
more
defendants.

Note: When there is joinder of parties,


there is also joinder of cause of action,
but there can be a joinder of cause of
action without joinder of parties.

B. Compulsory (Rule 3, Sec.7)


Those without whom no final
determination can be had of an
action; they must be joined under all
conditions
(Rule
3,
Sec.7).
(indispensable parties must be joined
compulsorily)
Test of indispensability
If the courts cannot proceed without
their presence such that a final decree
would necessarily affect their rights.
Note: A party is not indispensable if his
interest in the controversy is distinct
and indivisible from the interest of the

other parties and will not be prejudiced


by a judgment which does not complete
justice to the parties in the action.
C. Proper or Necessary (Rule 3, Sec.8)
Q: Who is a necessary party?
A: A party who is not indispensable but
who ought to be joined as a party if
complete relief is to be accorded as to
those already parties, or for a complete
determination or settlement of the claim
subject of the action
Effect of Absence of Indispensable
Parties:
1. The court must stop the trial and
order the inclusion of such party.
2. It
renders
all
subsequent
actuations of the court null and
void for want of authority to act,
not only as to the absent parties
but as to those present (Sepulveda,
Sr. v Pelaez, Supra).
Right of the plaintiff to select
defendant
None of the defendants has the right to
compel the plaintiff to prosecute an action
against a party if he does not wish to do
so. The plaintiff has to suffer the
consequences for his error in exercising
his option.
Remedies of a co-defendant who is NOT
dropped:
1. Move for the dismissal of the action
against him; or
2. Take other appropriate action as
might other be proper.
Notes:
1. The court may take initiative to
implead an indispensable party.
(Rule 3, Sec.11)

2. If the court orders to implead an


indispensable
party,
plaintiffs
refusal to comply with such order is
a ground for the dismissal of the
complaint.
Section 9.Non Joinder of necessary
parties to be pleaded
Duty of the pleader:
1. State the name of the necessary party
omitted, if known, and
2. State the cause or reason for the
omission.
Effects of Non Joinder of a Necessary
Party
1. The court may order the inclusion of
the omitted necessary party if the
court should find the reason for the
omission
unmeritorious
and
if
jurisdiction over his person can be
obtained
2. Unjustifiable failure of the party to
comply with said order shall be
deemed waiver of the claim against
such party (in effect an exception to
penalties imposed on a disobedient
party
under
Rule
17,
Sec.3;
Regalado).
3. The non-inclusion does not prevent
the court from proceeding in the
action and he judgment rendered
therein shall be without prejudice to
necessary partys rights.

Q: When may the court order the


joinder of a necessary party?
A: When the court finds the reason for
the omissions of such necessary party
unmeritorious and it may order the
inclusion of the omitted party if
jurisdiction over his person may be
obtained (Rule 3, Sec.9).

39

40
The dismissal under Rule 17, sec.3 shall
not be ordered where the plaintiff fails to
comply with the order of the court for the
joinder of the necessary part under this
rule, in line with Sec.11 which provides
that non-joinder of parties should not be
a ground for dismissal of an action
(Regalado).

motion to strike the names of the parties


impleaded.

Section 10. Unwilling Co-plaintiff

Section 12. Class Suit.

If the consent of the party who should be


joined as plaintiff cannot be obtained, he
may be made a defendant and the reason
shall be stated.

A suit brought by or defended by a


representative member or members of a
large group of persons on behalf of all the
members of the group.

The original plaintiff cannot be compelled,


on the mere representations of the
defendant, to implead anyone especially if
it does not appear that such joinder is
proper or is necessary for the complete
and expeditious adjudication of the case
(Emata v IAc GR No.L-72714, 1989).

Requisites: (BINC)
1. The subject matter of controversy is of
common or general interest to may
persons
2. Persons are so numerous that it is
impracticable to join all as parties
3. Parties actually before the court are
sufficiently
numerous
that
all
interests concerned are fully protected
4. The representatives sue or defended
for the benefit of all.

Section 11. Misjoinder and


Non-Joinder of Parties.
Both are not grounds for the dismissal of
the action. Parties may be dropped or
added by order of the court motu proprio
or on motion of any party at any stage of
the action and on such terms as are just.
(Riano)
Misjoined Parties
When he is made a
party to the action
although he should
not be impleaded.

Not Joined
Parties
When
he
is
supposed to be
joined bit is not
impleaded in the
action.

Objections to defects in the parties


impleaded should be made at the earliest
opportunity, that is when the moment
such defects become apparent, by a

If there is misjoinder, a separate action


should be brought against the party
misjoined. Objection to misjoinder cannot
be raised for the first time on appeal
(Regalado).

The complaint must specially state that


the same is being brought in behalf of
others with whom parties share a
common interest (Borlasa v Polistico, 47
Phil. 345).
Q: What shall the court do if it finds
that the requisites of a class suit have
been met?
A: The court shall appoint a number of
the group which it finds sufficiently
numerous and representative as to fully
protect the interests of all concerned to
sue or defend for the benefit of the group.
(Riguera, Primer-Reviewer on Remedial
Law, Vol. 1, 2015, Page 117)

Q: What is the effect of Improper Class


Suit?
A: If a class suit is not proper, the
defendant can file a motion to dismiss on
the ground that the plaintiff has no legal
capacity to sue (Rule 16, Sec.1[d]).
Determination of a class suit
Whether the suit is or is not a class
suit depends upon the attending facts
and complaint or any other pleading
initiating the class action should
allege the existence of necessary facts
(Mathay et al v Consolidated Bank and
Trust Co. GR No.L-23136, 1974).
Notes:
1. The parties who brought the class suit
have the control over the case with
the right to compromise or even
discontinue the same
2. A class suit cannot be compromised
or dismissed without the approval of
the court (Rule 17, Sec.2)
3. A member of the class suit is bound
by the judgment in the class suit,
hence this section give him the right
to intervene if he desires to protect his
own individual interest. In the interest
of justice, the absent members should
be notified of the filing of the class
suit whenever practicable (Regalado).
4. The defendant can assail the parties
sufficiency of burden of proof through
a motion to dismiss on the ground
that the plaintiff has no capacity to
sue (Rule 16, Sec.1 [d]). That is they
do not have the representation that
they claim.
Section 14. Unknown Identity Or
Name of the Defendant
When the identity or name of the
defendant is unknown, he may be sued as
the unknown owner, heir or such

designation as the case may require and


when his identity or true name is
discovered, the pleading may be amended
accordingly.
Section 15. Suits Against Entities
Without Juridical Personality.
Under Rule 3, Sec.1, only natural or
juridical persons or entities authorized by
law may be parties in a civil action.
However, an entity without juridical
personality be sued as a defendant when
it has entered into a transaction with the
plaintiff.
Two or more persons not organized as an
entity with juridical personality to enter
into a transaction may be sued under the
name by which they are generally or
commonly known but they cannot sue
under such name.
Answer
In the answer of such defendant, the
names and addresses of the persons
composing said entity must all be
revealed (Rule 14, Sec.8).
Judgment
Under Rule 36, Sec.6, when judgment is
rendered against two or more persons
associated in an entity without juridical
personality, the judgment shall set out
their individual or proper names if known
(Regalado, 2010).
Section 16. Effect Of Death Of
Party Litigant
Q: What is the duty of a party's
counsel, in case of the death of the
party?
A: Whenever a party to a pending action
dies and the claim is not thereby

41

42
extinguished, it shall be the duty of his
counsel:
1. To inform the court within 30 days
after such death of the fact
2. To give the name and address of
the
deceased
partys
legal
representative
Failure to comply by the counsel shall be
a ground for disciplinary action.
No summons are required to be served on
substitute defendants. Instead, the order
of substitution shall be served upon the
parties substituted in the action;
otherwise, the court does not acquire
jurisdiction over the substitute party
(Ferreria et al. v Vda. De Gonzales et.
al.104 Phil. 143). Proceedings conducted
by the trial court after the death of the
defendant and without such substitution,
are null and void (Lawas v CA et al., GR
No.L-45809, 1986; Regalado, 2010).
Rule: The substitution of the deceased,
priority
is
given
to
his
legal
representatives. The court may allow the
substitution by the heirs instead, if there
is unreasonable delay in the appointment
of an executor or administrator or when
the estate was extrajudicially settled
(Regalado, 2010).
Effect of Death
Relationship

to

General
Rule:
The
relationship is terminated.

Client-Lawyer

lawyer-client

Exceptions:
1. When there is a contract for the
lawyers service up to the final
judgment
2. When the lawyers fees are on a
contingent basis
3. When the lawyers appearance is
coupled with interest.

Q: What are the claims that are not


extinguished by the death of a party?
A:
1. Recovery of real and personal
property against the estate
2. Enforcement of liens on real and
personal properties of the estate
3. Recovery of damages based on an
injury to persons or properties by
reason of tort
4. Delict committed by the deceased
(Regalado, 2010).
The question as to whether an action
survives or not depends on:
1. The nature of the action
2. The damage sued for.
Action which
Survives
The
wrong
complained
of
affects
primarily
the property and
property rights; the
injuries to persons
being
merely
incidental.
Ex. Recovery of real
or
personal
property

Action which
does NOT Survive
The
injury
complained of is to
person
or
the
action is to the
person,
the
property
and
rights
affected
being
merely
incidental.
Ex.
Separation,
annulment
marriage.

Legal
of

Duty of the Court upon Notification of


a Partys Death
1. Court may appoint a guardian ad
litem for minor heirs
2. Order the representatives named to
appear and be substituted within 30
days from notice
3. The court may order the opposing
counsel to procure the appointment of

an executor or administrator for the


estate of the deceased, if:
a. There is no legal representative
named
b. The one so named fails to appear
within the specified period
Purpose of Substitution:
Protection of the right of every party to
due process; to ensure that the deceased
would
continuously
be
properly
represented in the suit through the duly
appointed legal representative of the
estate.
Section 17. Death or Separation of A
Party Who is a Public Officer.
Requisites:
1. Public Officer who is a party to an
action in his official capacity dies,
resigns or in any manner ceases to
hold office,
2. the action may be continued and
maintained
by
or
against
his
successor, if within 30 days after such
successor takes office or such time as
may be granted by the court, it is
satisfactorily shown that there is
substantial need for continuing or
maintaining the same
3. The successor adopts or continues or
threatens to adopt or continue the
action of his predecessor
Beforeasubstitutionismade,thepartyor
public
officeraffectedhasbeengivenreasonable
notice of the application and has been
accorded an opportunity to be heard
unless he expresslyassentsthereto.

Section 18. Incompetency and


Incapacity.
Thecourt,uponmotionwithnotice,mayallow
the action to be continued by or against
the
incapacitatedor
incompetentpartywiththeassistanceof
hislegalguardianorguardian adlitem.
Section 19.Transfer Of Interest.
General Rule: Action may be continued by
or against the original party.
Exception: The court directs transferee to
be substituted in the action or joined with
the original party.
Section 20. Action on Contractual
Money Claims.
Thedeathofthedefendantwillnotresultinthe
dismissaloftheactionagainsthimbecauseth
edeceasedshallbesubstitutedbyhislegalrep

43

44
resentatives.However,afavorablejudgment
shallnotentitlethewinningparty
toanexecution,asthesamemustbefiledasac
laimagainsttheestateofthedeceased
but
without the need of proving the claim.
Requisites:
1. Action must primarily be for the
recovery of money, debt or interest
2. The claim subject of the action arose
from the contract express or implied
3. Defendant dies before the entry of
the final judgment in the court where
his case was pending at that time.
Theimplied
contractsmentionedinthis
sectionandinRule 86, Sec.5may properly
includequasi-contracts
allpurelypersonalobligationsthatarenotbas
edonadelictoratort (Regalado).
Section 22. Notice to the Solicitor
General.
Whereanactioninvolvesthevalidityofanytre
aty,law,ordinance,executiveorder,presiden
tialdecrees,rulesorregulations,thecourtma
y,initsdiscretion,requiretheappearanceoft
heSolicitorGeneral.
FailuretonotifytheSolicitorGeneralaboutth
e petitionisNOTajurisdictionaldefect.

RULE 4
VENUE
Q: What is the definition of venue?
A: The place or geographical area where
an action must be instituted and tried.
General Rule: The venue of an action is
that which is provided by law. (Rule 4,
Sec.4 (a)).

Exception: If there is any stipulation of


an exclusive venue between the parties,
such stipulation will govern (Rule 4, Sec.4
(b))
Exception to the Exception: If there is
no agreement between the parties,
distinguish the kind of action.
Purpose:
To
attain
the
greatest
convenience possible to the party litigants
by considering the maximum accessibility
to courts.
Venue
1. Place where the
case is to be heard
or tried

Jurisdiction
1. Authority to
hear
and
determine a case

2.
Matter
procedural law

of

2.
Matter
or
substantive law

3. Establishes a
relation
between
plaintiff
and
defendant,
or
petitioner
or
respondent

3. Establishes a
relation
between
court
and
the
subject matter

4. May be conferred
by
the
act
or
agreement of the
parties

4. Fixed by law
and cannot be
conferred
by
agreement of the
parties

5. Not a ground
motu
proprio
dismissal (except in
cases subject to
summary
procedure)

5.
Lack
of
jurisdiction
over
the subject matter
is a ground for a
motu
proprio
dismissal

NOTE:
Venue is not jurisdictional in civil cases
as oppose to criminal cases.
Section 1. Venue of Real Actions

Q: What is the venue of real actions?


A: Real actions shall be commenced and
tried in the proper court which has
jurisdiction over the area wherein the
real property involved or a potion thereof
is situated. (Rule 4, Sec.1)
If the property is located at the
boundaries of two places, file the case in
either place at the option of the plaintiff
(Regalado, 2010).
Where the subject matter of the action
involves various parcels of land situated
in different provinces, the venue is
determined by the singularity or plurality
of the transactions involving said parcels
of land.
Rules:
1. Where said parcels are the objects of
one and the same transaction, the
venue is the court where any of the
provinces where a parcel of land is
situated (El Hogar Filipino v Seva, GR
No. 36627, Nov 19 1932).
2. If parcels of land are subject of
separate and distinct transactions
where there is no common venue,
separate actions should be laid in the
court of the province where each
parcel of land is situated (Mijares et
al. v Piccio et al., GR No. L- 10458,
April 22 1957; Regalado, 2010).
In case of forcible entry and detainer
actions shall be commenced and tried in
the MTC if the municipality or city where
the real property involved or a portion
thereof is situated.
Section 2. Venue of Personal Actions

Q: What is the venue of personal


actions?
A:
1. Where the plaintiff or any of the
principal plaintiffs resides
2. Where the defendant or any of the
principal defendants resides
3. In case of nonresident defendants,
where the nonresident defendants
may be found(Rule 4, Sec.2)
The rules on venue of personal actions
shall be at the election of the plaintiff.
Q: For purposes of the rule on venue,
what is the residence of a corporation?
A: The residence of a corporation is its
principal place of business, not its branch
office.(Riguera,
Primer-Reviewer
on
Remedial Law, Vol.I, 2015.page 137)
Section 3: Venue of Actions against
Nonresidents
Q: What is the venue of Actions against
Nonresidents?
A: It depends.
1. Nonresident defendant found in the
Philippines
1. Personal
actions
shall
be
commenced where the plaintiff
resides
2. Real actions shall be commenced
where the property is located
2. Nonresident defendant NOT found in
the Philippines
An action may be commenced only if it
involves:
1. Personal status of the plaintiff,
venue is where the plaintiff resides

45

46
2. Property of the defendant located in
the Philippines, venue is where the
property or a portion thereof is
situated. (Rule 4, Sec.3)
Where
there
is
more
than
on
defendant/plaintiff in the case, the
residences of the principal parties should
be the basis for determining the proper
venue (Regalado, 2010).
An exception to the general rules on
venue is found in civil actions for
damages in case of liber whether a
criminal case therefor has been files or
not, as special rules of venue are provided
in Art.360 of RPC, as last amended by RA
4364. Said venue applies to both
residents and nonresidents, assuming
that jurisdiction over the latter has been
acquired (Regalado, 2010).
Section 4: Rules on Venue
Do Not Apply
Q: When is Rule 4 ON VENUE OF
ACTIONS NOT APPLICABLE?
A:In those cases:
1. Where a specific rule or law provides
otherwise.
2. The parties have validly agreed in
writing before the filing of the action
on the exclusive venue thereof
(Principle of Stipulations on Venue).
Requisites for venue to be exclusive:
1. There is a valid written agreement
2. Executed by the parties before the
filing of the action
3. Venue is of exclusive or restrictive
nature (qualifying words such as only,
solely, exclusively in this court, in no
other place, to the exclusion of must be
used).

Q: Give Examples of cases where a


specific rule or law provides otherwise:
A:
1. Civil and criminal actions for Libel
shall be filed with the RTC having
jurisdiction over the place where the
libelous article is printed and first
published or where any of the offended
parties actually resides at the time of the
commission of the offense (Article 360,
Revised Penal Code; Primer-Reviewer on
Remedial Law, Civil Procedure, Vol.I,
Riguera, 2015, page142).
2. Petitions for rehabilitation shall be filed
with the RTC having jurisdiction over the
territory where the debtor's principal
office is located (SC, INTERIM RULES OF
PROCEDURE
ON
CORPORATE
REHABILITATION).
3. Petition for deposition before action
shall be filed in the court of the place of
the residence of any expected adverse
party (Section 1, Rule 24).
4. Petitions for declaration of nullity and
annulment of marriage shall be filed in
the Family Court of the province or city
where the petitioner or respondent has
been residing for at least 6 months prior
to the date of filing or in a case of non
resident respondent, where he may found
in the Philippines, at the election of the
petitioner (Section 4, SC Rule on
Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages).
EFFECTS OF STIPULATIONS ON
VENUE
Requisites for venue agreement to be
valid:
1. In writing; and

2. Executed by the parties before the


filing of the action.
Q: What is the effect of the absence of
qualifying or restrictive words?
A: In the absence of qualifying or
restrictive words, the venue stipulation is
merely permissive and not exclusive
which means that the stipulated venue is
in addition to the venue provided for in
the ruled (Polytrade Corp. v Blanco, GR
No. L-27033, 1969).
When the stipulation as to venue in a
passenger ticket of a vessel would be
contrary to public policy of making courts
accessible to all who may have need of
their service, the stipulation is void and
unenforceable (Sweet Line v Teves, GR No.
28324, May 19, 1972).
When the action is no longer based on the
agreement but on the tortious act of
sending collection telegrams despite the
fact that the obligation had already been
paid, venue is no longer based on the
written stipulation but at the election of
the plaintiff as fixed by law (Herrera, Vol.I,
2007).
The Supreme Court, to avoid miscarriage
of justice, has the power to order a
change of venue or place of the trial in
civil or criminal cases or other judicial
proceedings (Art.VIII, Sec.5(4), 1987
Constitution).

It has to be remembered that a thirdparty complaint is but ancillary to the


main action and is a procedural device to
avoid multiplicity of suits. Thus, thirdparty complaint has to yield to the
jurisdiction and venue of the main action
(Eastern Assurance & Surety Corp. v Cui,
GR No. L-54452, 1981).
Effect of Improperly Laid Venue
1. A ground for motion to dismiss. Refer
to Rule 16, Sec. 1 (c).
2. May be raised in an answer if no
motion to dismiss is filed.
1. The former rule, which provides
that when improper venue is not
objected to in a motion to dismiss
it is deemed waived was deleted
in the 1997 Rules on Civil
Procedure.
2. In cases governed by the Rule on
Summary
Procedure
and
in
ejectment, a motion to dismiss is a
prohibited
pleading.(PrimerReviewer on Remedial Law, Civil
Procedure, Vol.I, Riguera, 2015
,page 145).

RULE 5
UNIFORM PROCEDURE IN
TRIAL COURTS
Section 1: UNIFORM PROCEDURE

An intervention cannot alter the nature of


the action and the issues joined by the
original parties thereto (Claridades v
Mercader, GR No. L-20341, 1966).

The procedure in the MTC shall be the


same as in the RTC, except:
1. Where a particular provision expressly
or impliedly applies only to either of said
courts; or

An intervention is not an independent


proceeding but one which is merely
ancillary to the existing action.

2. In civil cases governed by the Rule on


Summary Procedure.

47

48
RULE 6
KINDS OF PLEADINGS
Section 1. Pleadings
These are written statements of the
respective claims and defenses of the
parties submitted to the court for
appropriate judgments.
Section 2. Kinds of Pleadings.

Kinds of Defenses
I. Negative Defenses
The specific denial (Rule 9, Sec.10)
of the material fact/s alleged in
the pleading of the claimant
essential to his cause/s of action
Sec.5 (a)).
Modes:
1. Absolute
Denial

the
defendant must specify each
materialallegation of fact the
truth of which he does not
admit and setting forth the
substance of the matters upon
which he relies to support his
denial, whenever practicable.
2. Partial Denial the defendant
shall specify so much of it as is
true and material and shall
deny the remainder.

A. Complaint (Section 3)
It is the pleading alleging the plaintiff
cause/s of action. The names and
residences of the plaintiff and
defendant must be stated in the
complaint.
It should contain a concise statement
of the ultimate facts constituting the
plaintiffs cause of action, not
evidentiary
facts
or
legal
consequences.
Test of Sufficiency of the Facts Alleged
In the Complaint
Whether upon the averment of facts, a
valid judgment may be properly rendered.
B. Answer (Section 4)
It is the pleading in
defending party sets
defenses.

which
forth

the
his

3. Disavowal of knowledge the


defendant shall state in his
pleading that he does not have
knowledge
or
information
sufficient to form a belief as to
the truth of a material
averment.
Note: This denial does not apply where
the facts as to which want of knowledge is
asserted, is so plainly and necessarily
within the defendants knowledge that his
averment of ignorance must be palpably
untrue. It is as if that no denial at all has
been made.
II. Negative Pregnant
A form of negative expression
which
carries
with
it
an
affirmation
or
at
least
an
implication of some kind favorable
to the adverse party.

It is a denial pregnant with an admission


of the substantial facts alleged in the
pleading.
Where a fact is alleged with qualifying or
modifying language and the words if the
allegation is so qualified or modified are
literally denied, has been held that the
qualifying circumstances alone are denied
while the fact itself is admitted (Republic v
Sandiganbayan, GR No. 152154, 2003).
It is actually an admission and vague as
to what it really denies (Riano).
Example.In Republic vs. Sandiganbayan,
it was alleged that it was clearly and
overwhelmingly
showed
how
the
respondents stashed away the countrys
wealth to Switzerland amounting to
$356M and hid the same under layers of
foundations and corporate entities to
prevent detection.
Negative Pregnant: The respondents
specifically denies the allegations for it
was false, the truth being that
respondents properties in the bank were
lawfully acquired.
III. Affirmative Defenses.
An allegation of a new matter which while
hypothetically admitting the material
allegations in the pleading of the
claimant, would nevertheless prevent or
bar recovery by him.(Sec. 5 (b))
Affirmative defenses includes:
1. fraud
2. statute of limitations
3. release
4. payment
5. illegality
6. statute of frauds
7. estoppel
8. former recovery
9. discharge in bankruptcy

10. any other matter by


confession and avoidance

way

of

Effect of admission and failure to set


up affirmative defenses
The court may, on motion of the party,
direct judgment on such pleading
pursuant to Rule 34, Sec.1
Except, in actions for declaration of
nullity or annulment of marriage or for
legal separation where the material facts
alleged in the complaint shall always be
proved.
C. Counterclaims
It is any claim which a defending party
may have against an opposing party(Rule
6, Sec.6).
A counterclaim is in the nature of a cross
complaint such that it must be answered
within 10 days from service.It is a cause
of action against the plaintiff.
Q: Where to File?
A: A counterclaim which is filed before the
MTC must be within the jurisdiction of
said court as to the amount and nature
thereof.
A court (if MTC) has no jurisdiction to
hear and determine a set-off or
counterclaim in excess of its jurisdiction.
A counterclaim beyond the courts
jurisdiction may only be pleaded by way
of defense. The purpose is to defeat or
weaken the plaintiffs claim, but not to
obtain affirmative relief.
A counterclaim may be entertained by
the RTC regardless of the amount
involved provided that it is cognizable by
the regular courts of justice (Regalado).

49

50
Q: How is counterclaim set up or
pleaded? May a counterclaim be set up
in a motion to dismiss?
A: While technically a separate and
independent pleading, a counterclaim by
common practice is pleaded or set up in
an answer (Section 6, Rule 16).Thus, the
practice of denominating such an answer
as "Answer with Compulsory/Permissive
Counterclaim/s."
A counterclaim cannot however be set up
in a motion to dismiss. The reason is that
while a counterclaim is a pleading, a
motion is not.
Kinds of Counterclaim
I. Compulsory Counterclaim
is one which arises out of or is
connected with the transaction or
occurrence constituting the subject
matter of the opposing party'sclaim
and
complies
with
the
other
requirements set forth in Section 7,
Rule 6.
Requisites:
1. It must arise out of, or be
necessarily connected with the
transaction or occurrence that
is the subject matter if the
opposing partys claim
2. It does not require for its
adjudication the presence of
third parties of whom the court
cannot acquire jurisdiction
3. It must be cognizable by the
regular courts
4. The trial court has jurisdiction
to entertain the claim both as to
the amount and the nature
thereof.
Except that in an original action
before the RTC, the counter claim
may be considered compulsory
regardless of the amount.

5. It must be existing at the time


the defendant files his answer
(Rule 11, Sec.8).
Q: What is the "compelling test of
compulsoriness" to determine whether
a claim is compulsory?
A: The test involves asking the question
whether there is alogical relationship
between the claim and counterclaim. If
there is such a logical relationship, then
the claim is compulsory.
II. Permissive Counterclaim
It is a counterclaim which does not arise
out of or is necessarily connected with
the subject matter of the opposing
partys claim.
It is not barred even if it is not set
up in the original action.
General
Rule:
A
compulsory
counterclaim not set up in the
answer is deemed barred.
Exceptions:
1. If it is a counterclaim which either
matured or was acquired by a party
after serving his answer.
In this case, it may be pleased by
filing a supplemental answer or
pleading before judgment.
2. When a pleader fails to set-up a
counterclaim through:
a. oversight,
b. inadvertence,
c. excusable negligence, or
d. when justice requires, he may,
leave of court set up the
counterclaim by amendment of
the pleadings before judgment
(Rule 11, Sec.10)

A plaintiff who fails or chooses not to


answer a compulsory counterclaim may
not be declared in default principally
because the issues raised in the
counterclaim are deemed automatically
Compulsory
Permissive
Counterclaim
Counterclaim
As to preclusion if not raised
1.
A
compulsory
counterclaim which
has at the time the 1. It may be set up as
answer is filed shall an independent action
be contained in the and will not be barred
Answer because a if not contained in the
compulsory
answer.
counterclaim not set
up shall be deemed
barred.
Nature of Pleading
2. Not an initiatory 2. Considered as an
pleading.
initiatory pleading.
As to payment of Docket Fees
3. No docket fees are
3. Docket fees need to
required.
be paid when filed
with the RTC.
As for requirement of Certification Against
Forum Shopping
4.
No
such 4.
Must
be
requirement.
accompanied by a
certification
against
forum shopping and
whenever required by
law, a certificate to file
action issued by the
Lupong
Tagapamayapa.
As for need to Answer
5. Failure to answer 5. Must be answered
is not a cause for by the party against
default.
whom it is interposed
otherwise, he may be
declared in default as
to the counterclaim.
As for prohibition under the rule on summary
procedure
6. Allowed under the 6. Cannot be availed
Rule on Summary
Procedure

joined by the allegations of the complaint


(Gojo v Goyala, GR No. 26768, 1970).
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim
are incompatible remedies.
In the event that a defending party has a
ground for dismissal and a compulsory
counterclaim at the same time, he must
choose only one remedy. If he decides to
file a motion to dismiss, he cannot set up
his counterclaim. But if he opts to set up
his counterclaim, he may still plead his
ground for dismissal as an affirmative
defense in his answer (Regalado, 2010).
Q:
Distinguish
a
counterclaim
from
counterclaim.

compulsory
permissive

A counterclaim, even if otherwise


compulsory, but the amount exceeds the
jurisdiction of the inferior court, will only
be considered permissive. Hence, the fact
that it is not set up in the inferior court
will not bar plaintiff from instituting a
separate action to prosecute it (Calo v
Ajax, GR No.L-20865, 1968).
EFFECT ON THE COUNTERCLAIM THE
COMPLAINT IS DISMISSED
Under the 1997 Rules, the dismissal of
the
main
complaint
will
not
correspondingly result in the dismissal of
the counterclaim where the defendant
had already filed and served the answer
with counterclaims upon the plaintiff.
The defendant has the option of
prosecuting the counterclaim in the same
or in a separate action (Riguera, PrimerReviewer
on
Remedial
Law,
Civil
Procedure, Vol.I).

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52
1. If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in Rule 16 may be
pleaded as an affirmative defense in
the answer and, in the discretion of
the court, a preliminary hearing mat
be had thereon as if a motion to
dismiss had been filed.
Note: The dismissal of the complaint
under this section shall be without
prejudice to the prosecution in the same
or separate action of a counterclaim
pleaded in the answer (Rule 16, Sec.6.)
2. Where the plaintiff himself files a
motion to dismiss his complaint after
the defendant has pleaded his answer
with a counterclaim, the dismissal
shall be limited to the complaint and
is without prejudice to the right of the
defendant
to
prosecute
his
counterclaim in a separate action.
Unless within 15 days from notice of the
motion he manifests his preference to
have his counterclaim resolved in the
same action. (Rule 17, Sec.2)
3. If the dismissal is due to the fault of
the plaintiff and a counterclaim has
been set up by the defendant, the
latter
may
prosecute
such
counterclaim in the same or in a
separate action. (Rule 17, Sec.3).

C. Cross-claims Rule 6, Sec.8


It is any claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter
either or the original action or of a
counterclaim therein.
Note: The dismissal of the complaint
carries with it the dismissal of a cross-

claim which is purely defensive (but not a


cross-claim seeking affirmative relief).
Reason: It has no independent existence
and based on the complaint.
Test of Propriety of Cross-claim
There must be at least a necessary
relation to the matter constituting the
principal cause of action.
General Rule: The cross-claim must be
set up in the action, otherwise, it is
deemed barred.
Exceptions:
1. When it is outside the jurisdiction of
the court
2. If
the
court
cannot
acquire
jurisdiction over third parties whose
presence
is
necessary
for
the
adjudication of said cross-claim. In
which case, the cross-claim is
considered permissive
3. Cross-claim that may mature or may
be acquired after the service of the
answer

Counterclaim

Cross-claim

As to whom Directed
1.
Directed 1.
Directed
against
the against a co-party
opposing party
As to Connection with the Main
Action
2. May or may 2. Always arise
not arise out of out
of
the
the transaction transaction
or
constituting the occurrence that is
subject matter of the subject matter
the
opposing of the original
partys claim
action or of a
counterclaim
As to compulsoriness
3. May or may 3.
Always
not
be compulsory

compulsory
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, Vol.I, 2015,page 182)
Section 12. Bringing New Parties.
When the presence of parties other than
those to the original action is required for
the granting of complete relief in the
determination of a counterclaim or crossclaim, the court shall order then to be
brought in as defendants, if jurisdiction
over them can be obtained.
Section 9. Counter-Counterclaims and
Counter Cross-claims.

Judgment: Two judgments may be


rendered in the action where a third-party
complaint is filed on the principal and
on the third-party complaint.
Third-Party
Complaint
1. A pleading

1. An affidavit

2. Filed by a
party to a case

2.
Filed
by
a
stranger to the case

3. The purpose
is
for
the
defendant
to
bring
in
a
stranger as a
party to the case

3. The purpose is for


the third-party to
notify of his right or
claim
over
the
property attached,
levied, or seized by
the sheriff.

A counter claim may be asserted against


an original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.
D. Third
(Fourth,
etc.)
Party
Complaints Rule 6, Sec.11
It is a claim that a defending party
may, with leave of court, file against a
person not a party to the action,
called the third (fourth etc.) party
defendant for: (CISO)
1. Contribution
2. Indemnity
3. Subrogation
4. Any other relief in respect to his
opponents claim
Note:Third party complaint must yield to
the jurisdiction and venue of the main
action.
Ground for denial of third party
complaint
When allowance would delay resolution of
the original case.

Third Party Claim

(Riguera, Primer-Reviewer on Remedial


Law, Civil Procedure, Vol.I, 2015,page 184)

Answer to Third (Fourth, Etc.)


Party Complaint
A third (fourth, etc.) party defendant may
allege in his answer his defenses,
counterclaims or cross-claims, including
such defenses that the third (fourth, etc.)
party plaintiff may have against the
original plaintiffs claim (Rule 6, Sec.13).
In proper cases, he may also assert a
counterclaim against the original plaintiff
in respect of the latters claim against the
third party plaintiff.
E. Complaint-in-Intervention
A pleading wherein an intervenor
asserts a claim against either or all of
the original parties (Rule 19, Sec.3).
Third-Party
Complaint

Complaint-InIntervention

53

54
Person
who
initiates
is
the
defending party

Person
who
initiates is not a
party
to
the
original
complaint

E. Reply
It is a pleading, the office or function of
which is to deny, or allege facts in denial
or avoidance alleged by way of defense in
the answer and thereby join or make
issue as to such new matters (Rule 6,
Sec.10).
General Rule:
Filing a reply is optional.
Exceptions:
1. The answer is based on actionable
document (Rule 8, Sec.8).
2. To set up affirmative defenses on
the counterclaim
3. The answer alleged the defense of
usury.
Actionable Document: The action or
defense is based or founded upon a
written instrument or document (Riano,
2011).
Q: What is the effect of Failure to File
a Reply?
A: All the new matters alleged in the
answer are deemed controverted.
Pleadings Allowed in Small Claim Cases
and Cases Covered By the Rules on
Summary Procedure
Pleadings allowed under the Rule on
Summary Procedure (CCCA)
1. Complaint
2. Compulsory
Counterclaim

3. Cross-claim
4. Answer
Note: All pleadings must be verified.
Q:
What
are
the
Prohibited
Pleadings/Motions under the Rule on
Summary Procedure?
A:(6M [dbp red] TM PIRC)
1. Motion to dismiss the complaint
Except on the ground of lack of
jurisdiction over the subject
matter or failure to comply with
the requirement of prior referral
to the Lupon.
2. Motion for bill of particulars
3. Motion for new trial or for
reconsideration of a judgment for
reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavit or any other
papers
6. Memoranda
7. Petition for certiorari, mandamus
or
prohibition
against
any
interlocutory order issued by the
court
8. Motion to declare the defendant in
default
9. Dilatory motions for postponement
10. Reply
11. Third party complaint
12. Intervention
Notes:
1. The defense of lack of jurisdiction
may be raised in a motion to
dismiss as an exception to the rule
on prohibited pleadings.
2. The filing of a motion to dismiss
after the answer had already been
submitted does not constitute
prohibited pleading (Heirs of

Olivas v Flor, GR No.L-78343,


1988).
3. While the plaintiff cannot file a
motion to declare defendant in
default, he may file a motion to
render judgment should the
defendant fail to file his answer.
Q:
What
are
Pleadings/Motions
Cases?
A:

the
prohibited
in Small Claim

1. Motion to dismiss the complaint


2. Motion for a bill of particulars
3. Motion for new trial, or for
reconsideration of a judgment, or
for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavits, or any other
paper
6. Memoranda
7. Petition for certiorari, mandamus
or
prohibition
against
any
interlocutory order issued by the
court
8. Motion to declare the defendant in
default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions ( A.M. No. 08-8-7-SC,
Sec.14 as amended)

The rule shall govern the procedure


before the MTC in actions for payment of
money where the value of the claim does
not exceed P100,000 exclusive of interests
and costs.
Note:The
prohibited
pleadings
and
motions are essentially the same as those
prohibited under the Rule on Summary
Procedure. The only difference is that
motions to dismiss on whatever ground
are prohibited in small claims cases.

RULE 7
PARTS OF A PLEADING
A. Caption. (Sec.1)
1. Title of the Action - indicates the
names of the parties.
They shall all be named in the
original complaint or petition.
In subsequent pleadings, it shall
be sufficient if the name of the
first part is indicated on each side
with a proper indicator that there
are other parties.
2. Docket Number if assigned.
Variance between caption and
allegations in the pleading
It is not the caption of the
pleading but the allegations which
determines the nature of the
action and the court shall grant
the relief warranted by the
allegations and proof even if no
such relief is prayed for (Regalado,
2010).
B. Body. (Sec.2)
(DARD)
1. Designation
2. The allegations of
claims and defenses
3. The relief prayed for
4. Date of the pleading

the

parties

Notes:
1. The court may grant a relief not
prayed for as long as the relief is
warranted
based
on
the
allegations of the complaint and
the proof. The docket fees on such

55

56
award shall constitute a lien on
the judgment. (Rule 141, Sec.2)
2. The
question
of
jurisdiction
depends upon the determination
of the true nature of the action
filed by a party which involves the
consideration of the ultimate facts
alleged as constitutive of the cause
of action therein. The prayer for
relief, although part of the
complaint, cannot create a cause
of action (Regalado).
C. Signature and Address (Sec.3)
The pleading must be signed by:
1. The party; or
2. Counsel representing him
Stating in either case his
address which should not be
a post office box.

papers and pleadings filed with the


Supreme Court (A.M. No.07-6-5-SC,
2007).
Under B.M. 1922, practicing members of
the Bar are REQUIRED TO INDICATE in
all pleadings filed before the courts or
quasi-judicial bodies, the number and
date of issue of their MCLE Certificate of
Compliance or Certificate of Exemption,
as may be applicable, for the immediately
preceding compliance period.
Note: Failure to disclose the required
information would cause the dismissal of
the case and the expunction of the
pleadings from the records.
D. Verification (Sec.4)
General Rule: Pleadings need NOT be
verified.

General Rule: An unsigned pleading


produces no legal effect.

Exception: When specifically required


by law or rule.

Exceptions:
1. Failure to sign was die to mere
inadvertence; and
2. Not intended for delay

Pleadings that must be verified:


1. Petition for relief from judgment.
Rule 38, Sec.3.
2. Appeal by certiorari from CA to
SC. Rule 45, Sec.1.
3. Complaint
with
prayer
for
preliminary attachment. Rule 58,
Sec.3
4. Complaintforreplevin(R60,S2);
5. Petitionforcertiorari(R65,S1);
6. Petitionforprohibition(R65,S2);
7. Petitionformandamus(R65,S3);
8. Complaintforforcibleentryorunlawf
uldetainer(R70,S4);
9. Petition
for
appointment of
generalguardian(R93,S2);
10. Petition for leave to sell or
encumber
propertyofestateorguardian(R95,S
1);
11. Petitionfordeclarationofcompetenc
yoftheward(R97,1);

INFORMATION WHICH SHOULD BE


STATED BYTHE COUNSEL BELOW HIS
SIGNATURE:
1. His address which should not be a
post office box
2. His PTR official receipt number for the
current year
3. His IBP official receipt number for the
current year
4. His roll number
5. Number and date of issue of his MCLE
Certificate
of
Compliance
or
Certification of Exemption for the
immediately preceding compliance
period (B.M. No.1922)
6. Phone
number,
Fax
number,
cellphone number, or email address in

12. Petitionforhabeascorpus(R102,S3);
13. Petitionforchangeofname(R103,S2)
;
14. Petition for voluntary dissolution
of a corporation(R104,S1);
15. Petitionforcancellationorcorrection
ofentriesinthecivilregistry(R108,R
1);
16. Petitiontotakedepositioninperpetu
amreimemoriam(beforeactionorpen
dingappeal)(R24,S2);
17. Motiontosetasideadefaultorderofan
inferiorcourt;
18. Motionfordissolutionofpreliminaryi
njunctiononthegroundofirreparabl
edamagetothemovantwhiletheadve
rsepartycanbefullycompensated;
19. Petition
for
appointment
of
receiver (R59,S1);
20. Petitionforreviewofthedecisionofan
RTCincaseswithintheexclusiveorigi
naljurisdictionoftheinferiorcourt,b
yandelevatedtotheCA(R42,S1);
21. PetitionforreviewfromthequasijudicialagenciestotheCourtofAppea
ls(R43,S1)
22. Appealbycertiorarifrom
theCourtofTaxAppealstotheSupre
meCourt(Sec.12,RA9282amending
Sec.19,RA1125);
23. Petition
for
annulmentofjudgmentsor
finalordersandresolutions(R47,S1)
;
24. Applicationforsupportpendentelite
(R69,S1)
Q: Who may make a verification?
A: A verification may be made by the
party, his lawyer or his representative or
any person who personally knows the
truth of the facts alleged in the pleading
(Tanjuatco vs. Judge Gako, RTJ-06-2016,
23 March 2009).
Q: How is a pleading verified?

A: A pleading is verified by an affidavit


stating that:
1. The affiant has read the pleading
2. That the allegations therein are
true and correct of his personal
knowledge or based on authentic
records
E. Certification
Against
Shopping.(Sec.5)

Forum

The plaintiff or principal party shall


certify under oath in the complaint, or
other initiatory pleading asserting a
claim for relief, or in a sworn
certification annexed thereto and
simultaneously filed therewith:
1. That he has not commenced any
action or filed any claim involving
the same issues in any court,
tribunal or quasi-judicial agency
and to the best of his knowledge,
no such other action or claim is
pending therein.
2. If there is such other pending
action or claim, a complete
statement of the present status
3. If he should thereafter learn that
the same or similar action or claim
has been filed or is pending, he
shall report that fact within 5 days
therefrom to the court wherein his
complaint or initiatory pleading has
been filed.
Note:Failure
to
comply
with
the
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be a cause
for the dismissal of the case without
prejudice, unless otherwise provided
upon motion and after hearing.
The submission of a false certification or
non-compliance
with
any
of
the
undertakings shall constitute indirect

57

58
contempt of court, without prejudice to
the corresponding administrative and
criminal actions.
If the acts of the party or his counsel
clearly constitute willful and deliberate
forum shopping, the same shall be:
1. Ground for summary dismissal with
prejudice and
2. Shall constitute direct contempt
3. Cause for administrative sanctions
A. Whether the several actions filed
involve:
1. Same transactions
2. Same essential facts and
circumstances
3. Identity of parties, rights or
causes of action and relief
sought in two or more cases
pending.
B. Forum shopping exists where:
1. The elements of litis pendentia
are present, or
2. A final judgment in one case
will amount to res judicata in
the other.
Q: When to invoke?

A: General Rule: It must be raised at the


earliest opportunity in a motion to
dismiss or a similar pleading.
Exception: Objection is waived if not
timely raised in the answer to the
complaint or other initiatory pleading.
Notes:
1. Forum shopping applies only when
2 or more cases are still pending.
2. Where the judgment had already
become final and executory, then
Res Judicata should be alleged
rather than forum shopping as a
defense.

Requirements of a Corporation
Executing the
Verification/Certification Against NonForum Shopping
The requirement that a petitioner or
principal party should sign the certificate
of non-forum shopping applies even to
corporations
considering
that
the
mandatory directives of the ROC make no
distinction between natural and juridical
persons.
A corporation, however, exercises its
powers through its board of directors
and/or its duly authorized officers and
agents. Physical acts, like the signing of
documents, can be performed only by
natural persons duly authorized for the
purpose by corporate by-laws or by a
specific act of the board of directors
(Pascual and Santos Inc. v The Members of
the Tramo Wakas Neighborhood Assoc.
Inc., GR No. 144880, 2004).

F. Effect Of The Signature Of The


Counsel In A Pleading
Implied certification in a pleading
when a counsel signs a he is certifying
that:
1. He has read the pleading
2. To the beat of his knowledge,
information or belief, there is a
good ground to support it
3. It is not interposed for delay.
Effect of failure to sign a pleading
1. Pleading may be stricken out as
sham and false
2. Court shall treat the same as if no
pleading has been served
3. Attorney may be subjected to
disciplinary action.

Counsel
shall
be
subjected
to
appropriate disciplinary action if he:
1. Deliberately files an unsigned
pleading
2. Signs a pleading in violation of the
rules
3. Alleges scandalous or indecent
matter
4. Fails to promptly report to the court
the change of his address.

Q: How may alternative causes


action or defenses be pleaded?

Note:A pleading require to be verified


which contains a verification based on
information
andbelief
or
upon
knowledge, information and belief or
lacks a proper verification, shall be
treated as an unsigned pleading.(Sec.4)

How Allegations in a Pleading are


made:
1. Condition Precedent (Sec.3)
A general averment of performance of
all conditions precedent shall be
sufficient.

RULE 8
MANNER OF MAKING
ALLEGATIONS IN THE
PLEADINGS
A. Manner
(Sec.1)

of

Making

Allegations.

In General: Every pleading shall


contain in a methodical and logical
form a plain, concise and direct
statement of the ultimate facts,
omitting the statement of mere
evidentiary facts.
Q: What are Ultimate Facts?
A: Those important and substantial facts
which form the basis of the primary right
of the plaintiff and which makes up the
wrongful acts or omissions of the
defendant. They are the principal,
determinate, constitutive facts, upon the
existence of which, the entire cause of
action rests (Tantuico, Jr. v Republic, GR
No. 89114, 1991).

of

A:
Apartymaysetforthtwoormorestatementsof
a
claimordefensealternativelyorhypothetical
ly,EITHERin
onecauseofactionordefenseorinseparateca
usesofactionordefense.(Rule 8, Sec. 2)

Note: If condition precedent is


required, the complaint must allege
fulfillment or excuse
for nonfulfillment.
2. Capacity (Sec.4)
Averred with particularity:
a. The capacity of a party to sue or
be sued
b. The authority of a party to sue or
be sued in a representative
capacity
c. The legal existence of an organized
association of persons that is
made a party.
How to contests capacity, by:
a. Specific denial
b. Motion to dismiss
c. Motion for bill of particulars.
3. Fraud, Mistake, Condition of the
Mind.(Sec.5)
The circumstances constituting Fraud
or Mistake must be stated with
particularity.

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60
Malice, Intent, Knowledge or Other
condition of the mind (MIKO) of the
person may be averred generally.
4. Judgment. (Sec.6)
A judgment or decision of a domestic
or foreign court, judicial or quasijudicial tribunal, or of a board or
officer may be averred generally
without setting forth matter showing
jurisdiction to render it.
General Averment
Facts which may
be averred
generally

Particular Averment
Facts which must
be averred with
particularity

1. Conditions
precedent
2. Capacity to sue
or be sued
3. Malice, Intent,
knowledge or other
conditions of the
mind.(MIKO)
4. Judgment
5. Official
document or act

Circumstances
constituting Fraud or
Mistake

B. Pleading As Actionable Document.


(Sec. 8)
Q: What is an Actionable document?
A: A document or instrument upon which
an action or defense is based.
Q: How to Plead an Actionable
Document?
A:
1. By setting forth the substance of
such instrument or document un
the pleading and attaching the
original copy as an exhibit
2. By setting forth the contents of such
document or instrument verbatim in
the pleading itself.

Q: Howto contest an actionable


documents?
A:
1. By
specifically
denying
the
genuineness and due execution of
the document under oath; and
2. Setting forth what he claims to be
the facts.
Note: Failure to deny the genuineness
and due execution of an actionable
document does not preclude a party from
arguing against it by evidence of fraud,
mistake, compromise, payment, statute of
limitations,
estoppel and want of
consideration (Acabal v Acabal, as cited in
Riano, 2011).
Genuineness
1. That the document is not spurious,
counterfeit or different from the one
executed by the party, or
2. That the party whose signature
appears admits that he signed it, or
3. That it was signed by another with his
authority and that at the time it was
signed, it was in words and figures as
set out in the pleadings.
Due Execution
1. That the document was signed
voluntarily and knowingly by the
party
whose
signature
appears
thereon, or
2. That if signed by another, that it was
with his authority,
3. That the document was duly delivered
and that the formalities required by
law are complied with (Hibberd v
Rhode, GR No. 8418, 1915).
Requirement of an oath does NOT
apply:
1. When adverse party foes not appear to
be a party to the instrument

2. When compliance with an order for an


inspection of the original instrument
is refused
3. The document to be denied is not
classified as an actionable document
bur merely an evidentiary matter.
Effects of Failure to deny under oath
when required:
1. The genuineness and due execution of
the document is deemed admitted
2. The document need not be formally
offered

document was
signed; it was
not in words
and figures as
set out in the
pleadings.

Note: If the other party has allowed the


adverse party to present evidence
contrary to the contents of the document
without objection, the rule on implied
admission is deemed waived.

Note: Where the cause of action is based


on an affidavit and memorandum of
Quitclaims, a judgment on the pleadings
is proper (Rule 34).

C. Specific Denials. (Sec.11)

Defenses
BARRED by
Admission of
Genuineness and
Due Execution

Defenses NOT
WAIVED Despite
Failure to
Specifically
Deny Under Oath

General Rule: Allegations not specifically


denied under oath are deemed admitted.

1. Signature is a
forgery
2. Signature is
unauthorized
3. The
corporation is
not authorized
under its
charter to sign
the instrument
4. The party
charged signed
the instrument
in some other
capacity than
that alleged in
the pleading
5. The document
was never
delivered
6. That at the
time the

1. Payment
2. Want or
illegality of
consideration
3. Fraud
4. Mistake
5. Compromise
6. Statute of
Limitations
7. Estoppel
8. Duress
9. Minority or
Imbecility

Effect of Failure
Denials

to Make Specific

Exceptions:
1. Allegations as to the amount of
unliquidated damages
2. Immaterial allegations in the complain
3. Conclusions of law
4. Grounds for legal separation or
annulment of marriage
5. General averment contradicted bu
specific averment
6. Default.
Specific Denial Requires An Oath,
when:
1. Contesting an actionable document
2. Denial of allegations of usury (Riano,
2011).
Requisites in Striking out of pleading
or matter contained (Sec.12)
. Upon motion made by a party
B. Before responding to a pleading, or
a. within 20 days after service of
pleading
upon
him
(if
no
responsive pleading is allowed), or

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62
b. upon courts own initiative at any
time.
C. Court may order any pleading to be
stricken out, or
a. That any sham, false, redundant,
immaterial,
impertinent
or
scandalous matter be stricken out.

RULE 9
EFFECT OF FAILURE TO PLEAD
A. Failure To Plead
Objections. (Sec.1)

Defenses

and

General Rule: Defenses and objections


not pleaded in an answer or motion to
dismiss are deemed waived.
Exceptions: When it appears from the
pleadings or evidence on record
1. That the court lack jurisdiction
over the subject matter
2. Litis pendentia between same
parties for the same cause
3. Res Judicata
4. Action barred by statute of
limitations.
Otherwise, the court shall dismiss the
claim.
Note: These defenses may be raised at
any stage of the proceedings, even on
appeal, except lack of jurisdiction which
may be barred by laches (Tijam v
Sibonghanoy, GR No.L-21450, 1968).
B. Failure To Plead A
Counterclaim
and
(Sec.2)

Compulsory
Cross-claim

General
Rule:
A
compulsory
counterclaim or cross-claim which is not
set up is deemed barred.

Exceptions:
1. If the counterclaim or cross-claim
matured or was acquired by a party
after serving his answer, he may, with
the permission of the court, be
allowed to present his counterclaim or
cross-claim by filling a supplemental
answer or pleading before judgment.
Refer to Rule 11, Sec.9.
2. When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, by
leave of court, set up the counterclaim
or cross-claim by amendment before
judgment. Refer to Rule 11, Sec.10.

Note: An after-acquired counterclaim is


merely permissive even if it arises from or
is connected with the transaction or
occurrence constituting the subjectmatter of the opposing partys claim.
Default. (Sec.3)
Refers to the defending partys failure to
answer within the time allowed and not to
the partys failure to appear in trial or
failure to present his evidence.
A motion to declare defendant in default
must be set for hearing for it may
prejudice the rights of the adverse party
under Rule 15, Sec.4.
General Rule: The court may not motu
proprio declare defendant in default for
failure to timely file and answer. There
should be a motion by the plaintiff.

Exception: Under the Rule on Summary


Procedure, the court may motu proprio
render judgment in favor of the plaintiff if
the defendant fails to timely answer.

Dual Stages of Default


I. Declaration/Order of Default
Issued by the court upon motion of
the claiming party with notice to the
defending party for failure of the
defending party to file his responsive
pleading on time.
Note: This is an interlocutory order,
therefore, not appealable.
II. Judgment by Default
Rendered by the court following a
default order, or after its receipt, ex
parte, of plaintiffs evidence.
Note: It is final and not appealable.
A. When Order of Default is Proper
Elements of Valid Order of Default:
1. Court must have jurisdiction
acquired over the person of the
defendant either by service of
summons
or
voluntary
appearance
2. The defendant failed to file his
responsive pleading on time
3. There must be a motion to
declare defendant in default
made by the claiming party
4. The defendant must be notified
by serving him with a copy of
such motion
5. There must be proof of such
failure to answer.

such relief as his pleading may


warrant or require him to present
evidence.
2. The party declared in default shall
not be allowed to take part in the
trial
3. The part in default shall be
entitled to notice of subsequent
proceedings, final orders and
judgments
4. In case of partial default, the court
shall try the case against all upon
the answers this filed and render
judgment upon the evidence
presented.
Notes:
1. The answer filed by the answering
defendant will automatically benefit the
non-answering.
2. Failure to furnish a copy of the answer
to the adverse party in itself is
sufficient or valid basis for defendants
default.
C. Relief From Order Of Default
REMEDIES OF A PARTY WHO IS
DECLARED IN DEFAULT
BEFORE
NOTICE OF
ORDER OF
DEFAULT

Note: A defaulted party is not disqualified


from testifying in court in behalf of nondefaulted party.
B. Effects of Order of Default
1. The court shall proceed to render
judgment granting the claimant

AFTER
ORDER OF
DEFAULT BUT

File a motion to
admit answer giving
a justifiable cause
for the delay in the
filing of the answer
File a motion under
oath to set aside the
default order upon
proper showing that
his failure to answer
was due to fraud,
accident, mistake or

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64
BEFORE
JUDGMENT.

AFTER
JUDGMENT
BUT BEFORE
IT BECOMES
FINAL.

excusable
negligence and that
he has meritorious
defense.
File a motion for
new trial on the
ground of FAME, if
denied,
it
is
appealable
within
15 days from such
denial.
File a petition for
relief under Rule 38.

AFTER
JUDGMENT
BECOMES
FINAL.

AFTER
PERIOD TO
FILE A
PETITION
FOR RELIEF
HAS LAPSED.

If the defendant was


improvidently
or
wrongly declared in
default he may move
to set aside the
judgment by way of
special civil action
for certiorari.
File a petition for
annulment
of
judgment based on
extrinsic
fraud
under Rule 47.

(Riguera, Primer-Reviewer on Remedial


Law, Civil Procedure, Vol.I, 2015,page 240)
Q: Defendant was declared in default by
the RTC (RTC). Plaintiff was allowed to
present evidence in support of his
complaint. Photocopies of official receipts
and original copies of affidavits were
presented in court, identified by plaintiff
on the witness stand and marked as
exhibits. Said documents were offered by
plaintiff and admitted in evidence by the
court on the basis of which the RTC

rendered judgment in favor of the


plaintiff, pursuant to the relief prayed for.
Upon receipt of the judgment, defendant
appeals to the Court of Appeals claiming
that the judgment is not valid because
the RTC based its judgment on mere
photocopies and affidavits of persons not
presented in court.(BAR 2000)
Is the claim of defendant valid?
A: The claim of defendant is not valid
because under the 1997 Rules, reception
of evidence is not required. After a
defendant is declared in default, the court
shall proceed to render judgment granting
the claimant such relief as his pleading
may warrant, unless the court in its
discretion requires the claimant to submit
evidence, which may be delegated to the
clerk of court. (Sec. 3, Rule 9)
D. Effect of A Partial Default
General Rule: The court shall try the
case against all upon the answers thus
filed and render judgment upon the
evidence presented.
Exception: Where the defense is
personal to the one who answered, in
which case, it will not benefit those
who did not answer.
E. Extent of Relief
Limitations in a default judgment
1. Should not exceed the amount
prayed for in the complaint
2. Should not be different in kind
from that prayed for in the
complaint
3. No award of unliquidated damages
should be made.
F. Actions Where
Allowed (LADS)

Default

Are

Not

1.
2.
3.
4.

Annulment of marriage
Declaration of nullity of marriage
Legal separation
Special civil actions of certiorari,
prohibition and mandamus.

Remedies: Where the defendant was


improperly declared in default, as where
the reglementary period to answer had
not yet expired, he can, if such default
order is not lifted, elevate the matter by
certiorari without waiting for the default
judgment.
If default judgment was already rendered,
he can also resort immediately to
certiorari and challenge the nullity of
both the order and the judgment and not
on the merits or correctness of the
judgment (Regalado).

RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
Section 1. Amendments
Q: How pleadings are Amended?
A:
1. Adding or striking out an allegation
of any party
2. Adding or striking out the name of
any party
3. Correcting a mistake in the name
of a party
4. Correcting a mistake or inadequate
allegation in any other respect.
KINDS OF AMENDMENTS
A. Amendment as A Matter Of Right
(Sec.2)
1. Before an answer is filed
2. Before a reply is file or before the
period of filing a reply expires

3. Anytime within 10 days after it is


served
4. In case of formal amendments
The right of a plaintiff to amend his
pleading once as a matter of right before a
responsive pleading is served, has been
held to be one which the court should
always grant, otherwise, mandamus will
lie against it since it is a ministerial duty
of the court to accept amendment as a
matter of right (Ong Peng v Custodio, GR
No.L-14911, 1961).
Notes:
1. A motion to dismiss is not a
responsive
pleading; hence, the
plaintiff can still amend his complaint
as a matter of right.
2. If the purpose of amendment is to
confer jurisdiction upon the court,
then the court cannot admit the
amended complaint.
The lower court has neither the power
nor the jurisdiction to act on the
motion for the admission of the
amended complaint, much less to
allow such amendment. The court
must first acquire jurisdiction over the
case in order to act validly therein
(Rosario v Carandang, GR No.L-7076,
1955).
3. The cause of action must exist at the
time of the action was begun,
otherwise, amendment to introduce a
cause of action which had no
existence when the action was
commenced will not be allowed
(Surigao Mine Exploration Co. v Harris,
GR No.L-45543, 1939).
B. Amendment By Leave Of
(Sec.3)
1. Amendment is substantial

Court

65

66
2. Responsive pleading has already
been served
Requisites: (MNO)
1. Party must file a motion in court
2. Adverse party must be notified
3. Adverse party must be given
opportunity to be heard.
Amendment By Leave of Court NOT
Allowed:
1. Cause of action, defense or theory
of the case is changed
2. Amendment is intended to confer
jurisdiction to the court
3. Amendment seeks to cure the
defect in the cause of action
4. Amendment is made with intent to
delay
Amendment may be made despite
substantial change in the cause or
defense if such will serve the higher
interest of justice or prevent delay and
promote a just, speedy and inexpsenive
disposition of the case (Valenzuela v CA).
Lack Of Cause Of Action
Not Amendable
1. The cause of
action has not yet
accrued when the
action
was
commenced.
2.
Cannot
be
cured
by
amendment since
cause of action
must exist at the
time
of
the
commencement of
the action.

Amendable
1. The cause of
action has already
accrued
but
was
imperfectly stated
2.
Curable
amendment.

by

C. Formal Amendments. (Sec.3.)


Formal defects in the designation of
the parties or other clearly clerical or

typographical
errors
may
be
summarily corrected by:
1. The court motu proprio
2. On motion by the party
Provided no prejudice is caused
to the adverse party.
D. Amendments To Conform To Or
Authorize
Presentation
Of
Evidence. Refer to (Sec.5)
1. Amendment to conform to
evidence
May be granted upon motion of
any party at any time or even
before judgment when issues not
raised by the pleadings are tried
with express or implied consent of
the parties.
2. Amendment
to
authorize
presentation of evidence
When issues not raised by the
pleadings are tried with express or
implied consent of the parties,
amendment may be allowed by the
court if the presentation of the
merits of the action and ends of
substantial justice will be served.
E. Amendment v Supplemental
Pleading
Supplemental Pleadings. (Sec.6)
Those which aver facts occurring after the
filing of the original pleadings and which
is material to the mature claims and/or
defenses alleged therein.
Amended
Pleadings

Supplemental
Pleadings

AS TO ALLEGATIONS
Refer
to Refer
transaction,
transactions,
occurrences or occurrences

to
or

events
already events which have
existing at the happened since the
time of the filing date of the pleading
of the original sought
to
be
action.
supplemented.
AS TO RIGHT
Can be a matter
of right.
Always with leave of
Ex. when made court.
before
a
responsive
pleading
is
served.
AS TO FORM
A new copy of
the
entire
pleading
must No need to file but
be
filed must serve a copy to
incorporating
the court and the
the amendments adverse party.
and indicated by
appropriate
marks.
AS TO EFFECT
An
amended Original
pleading
pleading
stands.
supersedes the
original one.

F. Effect
of
Amended
Pleadings.
(Sec.8)
1. Amended pleading supersedes the
pleading which it amends.
2. Admissions in the superseded
pleading can still be received in
evidence against the pleader.
Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.

RULE 11

WHEN TO FILE RESPONSIVE


PLEADINGS
Q: When are the periods for filling an
answer?
A:
PLEADINGS

1.
ANSWER TO
COMPLAINT/TH
IRD PARTY
COMPLAINT

2.
ANSWER OF A
DEFENDANT
FOREIGN
PRIVATE
JURIDICAL
ENTITY

PPERIOD
General Rule: 15 DAYS
AFTER SERVICE OF
SUMMONS (Sec.1 , Rule
11)
RULE ON SUMMARY
PROCEDURE: 10 DAYS
AFTER SERVICE OF
SUMMONS (Section 5,
Rule 14).
1. RESIDENT AGENT :
15
DAYS
AFTER
SERVICE OF SUMMONS
2.
GOVERNMENT
OFFICIAL DESIGNATED
BY LAW TO RECEIVE
SUMMONS:
30 DAYS AFTER THE
RECEIPT OF SUMMONS
BY FOREIGN PRIVATE
JURIDICAL ENTITY
3.
OFFICERS
OF
AGENTS WITHIN THE
PHILIPPINES:
15 DAYS AFTER THE
SERVICE OF SUMMONS
4.
NON-RESIDENT
DEFENDANT ON WHOM
EXTRATERRITORIAL
SERVICE OF SUMMONS
IS MADE:
THE

PERIOD

TO

67

68
ANSWER SHOULD
AT LEAST 60 DAYS.

BE

PARTICULARS
DENIED
8.
REPLY

3.
AMENDED
COMPLAINT

1.
Amended
as
a
matter of right:
15
DAYS
AFTER
SERVICE OF AMENDED
COMPLAINT.
2. Amended not as a
matter of right:
10 DAYS FROM NOTICE
OF ORDER ADMITTING
AMENDED COMPLAINT.
3.Complaint amended
pursuant to court order
after denial of motion
to dismiss:

4.
COUNTERCLAIM
AND CROlSSCLAIM
5.
SUPPLEMENTAL
COMPLAINT
6.
COMPLAINT-ININTERVENTION
7.
MOTION TO
DISMISS /
MOTION FOR
BILL OF

WITHIN THE TIME TO


ANSWER AS PROVIDED
FOR
IN
RULE
11
COUNTED
FROM
SERVICE
OF
THE
AMENDED PLEADING.
(Sec.4, Rule 16)
10
DAYS
FROM
SERVICE
OF
COUNTERCLAIM
ORcCROSS-CLAIM.
10 DAYS FROM NOTICE
OF ORDER ADMITTING
SUPPLEMENTAL
COMPLAINT
15 DAYS FROM NOTICE
OF ORDER ADMITTING
THE
COMPLAINT-ININTERVENTION.
BALANCE OF PERIOD
UNDER RULE 11 BUT
IN NO CASE LESS THAN
5 DAYS (Sec. 4, Rule 16,
Sec 5 Rule 12)

10
DAYS
FROM
SERVICE
OF
THE
ANSWER (Sec.6, Rule
11)

PERIODS OF FILING OF RESPONSIVE


PLEADINGS
1.Answer to complaint (Sec.1) 15 days
from service, unless different period is
fixed by the law.
A non-resident defendant on whom
extraterritorial service of summons is
made - the period to answer should be at
least 60 days.
2.Answer to amended complaint (Sec.3)
Answer earlier filed may be answer to
amended complaint, if no new answer
is filed.
Applicable to amended counterclaim,
cross, third, etc,
3.Answer to counterclaim or crossclaim (Sec.4) - within 10 days from
service
General
rule:
An
answer
to
counterclaim or cross claim is
required. Failure to answer is ground
for default.
Exceptions: (in case of counterclaim)
a. Where answer would be a
repetition of allegations in the
complaint (Navarro v. Bello, L11647 January 31, 1958);
b. Where the issues raised in the
counterclaim are inseparable
from those posed in the

complaint (Sarmiento v. Juan,


No. 56605 January 28, 1983);
c. A plaintiff who fails or chooses
not to answer a compulsory
counterclaim
may
not
be
declared in default, principally
because the issues raised in the
counterclaim
are
deemed
automatically joined by the
allegations in the complaint
(Gojo v. Goyala, G.R. No. L26768, 30 October 1970).

amendment before judgment.


Extension of time to plead (Sec.11)
Requisites:
1. That the party files a motion for
extension;
2. The terms are just; and
3. Service of such motion must be
given to the other party.

RULE 12
BILL OF PARTICULARS

5.Answer to third (fourth, etc.)-party


complaint (Sec.5)- within 15 days from
service.

Section 1. When applied for; purpose.

6. Reply (Sec.6) may be filed within 10


days from service of the pleading
responded to.

A: A bill of particulars is a definite


statement of any matter which is not
averred with sufficient definiteness or
particularity in a pleading so as to enable
the opposing party to properly prepare his
responsive pleading (Sec.1,Rule 12).

7. Answer to supplemental complaint


(Sec.7)- within 10 days from notice of the
order admitting the same, unless a
different period is fixed by the court.
NOTE: The answer to the complaint shall
serve as the answer to the supplemental
complaint if no new or supplemental
answer is filed.
8. Counterclaim or cross-claim arising
after answer (Sec.9)
It may, with permission of the court, be
presented as such by supplemental
pleading before judgment.
9. Omitted counterclaim or cross-claim
(Sec.10)
When a pleader fails to set up a
counterclaim or cross claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, he may,
by leave of court, be set up as such by

Q: What is a bill of particulars?

PURPOSE: Aid in the preparation of a


responsive pleading.
An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant is
to move for a bill of particulars or avail of
the proper mode of discovery (Galeon v.
Galeon, G.R. No. L-30380, Feb. 28, 1973).
If the pleading is not only indefinite or
ambiguous but fails to state a cause of
action, the remedy of the party is to file a
motion to dismiss on the ground that the
pleading states no cause of action.
(Primer-Reviewer on Remedial Law, Vol.I,
Civil Procedure, Riguera, 2nded., 2013)
II. WHEN APPLIED FOR:
Q: Within what time may a motion for

69

70
a bill of particulars be filed?
A: The motion for bill of particulars shall
be filed before responding to a pleading.
Hence, it must be filed within the period
granted by the Rules (Rule 11) for the
filing of a responsive pleading.
THE MOTION SHALL POINT OUT:
1. The defects complained of;
2. The paragraphs wherein they are
contained; and
3. The details desired.
The motion must comply with the
requirements for motions under Sec. 4, 5
and 6 of Rule 15. Otherwise the motion
will not suspend the period to answer
(Filipino Fabricator v. Magsino, G.R. No.
47574, Jan. 29, 1988).
Q: What is the remedy of a party if the
adverse
party's
pleading
contain
allegations which are not averred with
sufficient definiteness or particularly
so that he cannot properly prepare his
responsive pleading?

Period to comply with order granting


the motion: Ten (10) days from notice of
order unless a different period is fixed by
the court.
The Bill of Particulars may be filed either
in a separate or in an amended pleading,
serving a copy thereof on the adverse
party.
SECTION 4. EFFECT OF NONCOMPLIANCE
1. If the Order is not obeyed or in case of
insufficient compliance therewith, the
court:
a. May order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. Make such order as it may deem just.
2. If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice UNLESS otherwise ordered by
the court (Rule 12, Sec. 4; Rule 17, Section
3);

A:
He may file a motion for bill of
particulars. However, if the pleading is not
only indefinite or ambiguous but fails to
state a cause of action, the remedy of the
party is to file a motion to dismiss on the
ground that the pleading states no cause
of action.

3. If defendant fails to obey, his answer


will be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff (Rule
12, Section 4; Rule 17, Section 4; Rule 9,
Sec. 3).

Section 2. ACTIONS OF THE COURT

Section 5. EFFECT ON THE PERIOD TO


FILE A RESPONSIVE PLEADING

THE COURT MAY EITHER:


1. Deny;
2. Grant it outright; or
3. Allow the parties the opportunity to be
heard.
Section 3. COMPLIANCE WITH THE
ORDER

Stay of Period to File Responsive


Pleading
EFFECTS OF MOTION:
1.If the motion is granted, in whole or in
part, the movant can wait until the bill of
particulars is served on him by the
opposing party and then he will have the

balance of the reglementary period within


which to file his responsive pleading; and
2.If his motion is denied, he will still
have such balance of the reglementary
period to file his responsive pleading,
counted from service of the order denying
his motion.
In either case, he shall have not less
than 5 days to file his responsive
pleading.
Section 6. BILL A PART OF PLEADING
A bill of particulars becomes part of the
pleading for which it is intended.

RULE 13
FILING AND SERVICE OF
PLEADINGS
CONDITIONS PRECEDENT TO FILING A
COMPLAINT
1. Barangay Conciliation (Secs. 399422, Local Government Code)
2. Intra-Family Dispute
3. Investigation by a fiscal is a
prerequisite to annulment of
marriage when defendant defaults
(Art. 151, Family Code);
4. No suit shall be filed between
members of the same family
unless it should appear that
earnest efforts at compromise
have been made but that the same
have failed (Art. 2035, Civil Code).
Citizens Suit (Sec. 41, Clean Air
Act);
5. Doctrine
of
Exhaustion
of
Administrative Remedies (DEAR);

Doctrine of Primary Jurisdiction;


6. Referral to Arbitration (Sec. 41,
ADR Act of 2004);
7. Payment of Docket Fees (Sec. 1,2,
& 21 (a), Rule 141; Sec. 1, Rule
111).
Payment of Docket Fees
General Rule: Docket fees must be paid
at the commencement of the action.
Exceptions: When docket fees need not
be paid at the time of filing and may be
considered a lien on the judgment in the
following instances:
1. The damages or claim arose after
the filing of the complaint or if the
court awards damages not prayed
for in the complaint (Original Devt
& Construction Corp. v CA, 202
SCRA 75; Rule 141, Sec.2.).
2. Indigent
litigant
(Rule
141,
Sec.19).
3. Failure of the adverse party to
timely
raise
the
issue
of
nonpayment of the docket fee
(National Steel Corp v CA, GR
No.123215, 1999).
4. Civil action instituted with the
criminal action where the moral,
exemplary, nominal and temperate
damages are not specified in the
complaint or information (Rule
141, Sec.1).
5. Petition for a writ of amparo shall
be exempt from the payment of
docket and other filing fees (Sec.1,
Rule on Writ of Amparo).
A. Section 2. Filing vs. Service Of
Pleadings
Filing the act of presenting the

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72
pleading or other paper to the clerk of
court.
Proof of Filing
General Rule: The filing of the
pleading shall be proved by its
existence in the record of the case.
(Rule 13, Sec.12.)
Exceptions:
1. Filed Personally the filing shall be
proved by the written or stamped
acknowledgment of its filing by the
clerk of court on a copy of the same.
2. Filed by Registered Mail the registry
receipt and the affidavit of the person
who did the mailing, containing a full
statement of:
a. The date and place of depositing
the mail in the post office in a
sealed envelope addressed to the
court
b. With stamped fully prepaid
c. With instructions to return the
mail to the sender after 10 days if
undelivered.
Service the act of providing a party
with a copy of the pleading or paper
concerned.
General Rule:
If the party appeared by counsel, the
service shall be through his counsel or
one of them unless otherwise ordered by
the court.
Exceptions:
1. Doubtful as to the counsel of such
party
2. When counsel cannot be found
3. Party is directed to do something
personally as when he is ordered to
show cause

NOTE: Where a party is represented by a


counsel, service should be made upon the
counsel and not the party himself and
that the reglementary period should be
reckoned from service upon the counsel.
Appeal in this case should be reckoned
not from the formal notice to the counsel
but upon the actual notice to him (Hernal
v De Guzman, GR No. 181568, 2008).
(Doctrine of Actual Notice)
In case of request for admission, it must
be served directly upon the party cannot
be deemed to have admitted the
genuineness of any relevant matters of
fact set forth therein on account of failure
to answer the request for admission. A
request for admission must be served on
the party himself, not his counsel
(Lanada v CA, GR No. 102390, 2002).
B. Section 4. Papers required to be
filed and served.
1. Judgment;
2. Resolution;
3. Order;
4. Pleading subsequent to the
complaint;
5. Written motion;
6. Notice;
7. Appearance;
8. Demand;
9. Offer of judgment; or
10. Similar papers
C. Periods of Filing of Pleadings
Refer to Rule 11.

copy between 8am


and 6pm at the
partys
or
counsels
residence,
if
known, with a
person
of
sufficient age and
discretion residing
therein.

D. Section 3. Manner of Filing

1. Personal the clerk of court shall


endorse on the pleading the date
and hour of filing.
Registered Mail the date of mailing as
shown by the post office stamp on the
envelope or the registry receipt shall be
considered the date of their filing,
payment or deposit in court. The envelope
shall be attached to the record of the
case.
NOTE: If a party avails the services of a
private carrier, the date of actual receipt
by the court of such pleading and not the
date of delivery to the private carrier is
deemed to be the date of the filing of that
pleading (Benguet Electric Cooperative,
Inc. v NLRC, GR No. 89070, 1992).

2. Service By Mail.
(Rule 13, Sec.7)

E. Section 5. Modes of Service


Service of pleadings, motions, notices,
orders, judgments and other papers shall
be made either personally or by mail.

b. Ordinary Mail
if no registry
service is available
in the locality of
either the sender
or the addressee.

MODES OF SERVICES

1. Personal Service
(Rule 13, Sec.6)

1. By delivering
personally a copy
to the party or his
counsel.
2. By leaving it in
his office with his
clerk or with a
person
having
charge thereof.
If no person is
found in his office,
or his office is
unknown, or he
has no office.
3. By leaving a

a.
Registered
Mail made by
depositing a copy
in the post office,
addressed to the
party
or
his
counsel
at
his
office, if known,
with instructions
to the postmaster
to return the mail
to the sender after
10
days
if
undelivered.

3.
Substituted
Service. (Rule 13,
Sec.8)

If service cannot
be made personal
or by mail, service
may be made by:
a. Delivering a
copy to the clerk
of court
b. With proof of
failure of both
personal service
and service by

73

74
mail.

Note: Under Rule


3, Sec.3 of the
Rules of Procedure
on
Corporate
Rehabilitation
(2008) and Sec.6
od the Interim
Rules of Procedure
Governing IntraCorporate
Controversies, any
pleading
and/or
document
required by the
said rules may be
filed
with
the
court
and/or
served upon the
other parties by
fax or email if so
authorized by the
court.
In such case, the
date
of
transmission shall
be deemed to be
prima facie the
date of service
(Riguera,
PrimerReviewer
on
Remedial
Law,
Civil
Procedure,
Vol.I, 2015).
4.
Service
of
Judgments, Final
Orders
or
Resolutions. (Rule
13, Sec.9)

a. Personal
Service
b. Registered
mail
c. Publication, if
the party is
summoned by

publication
and has failed
to appear in
the action.

Priorities In Modes of Service And


Filing
General Rule: Whenever practicable,
service and filing shall be done
personally.
Exception: Papers emanating from the
court.
Notes:
1. A resort to other modes must be
accompanied by a written explanation
why the service or filing was not done
personally. Otherwise, the paper shall
be considered not filed.
2. Non-compliance with Rule 13, Sec.11
may consider the paper as not filed.
F. When Service Is Deemed Complete
(Rule 13, Sec.10)
and Proof of Filing and Service (Rule
13, Sec. 12 & 13.)
Proof of Filing
The filing of pleading or paper shall be
proved by its existence in the record of the
case.

MODES OF SERVICE
1. Personal Service

WHEN DEEMED
COMPLETE
complete upon actual
delivery

PROOF OF FILING
Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.

PROOF OF
SERVICE
1.Written
admission of the
party served
2.Official return
of the server
3.Affidavit of the
party
serving
containing a full
statement of the
date, place and
manner
of
service.

2. Service by
Ordinary Mail

complete
upon
expiration of 10 days
after mailing
Unless
otherwise
provided

Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.

Affidavit of the
person
mailing
stating the facts
showing
compliance with
Rule 13, Sec. 7.

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76
3. Service by
Registered Mail

Complete upon actual


receipt by the addressee
or after 5 days from the
date he received the
notice
from
the
postmaster, whichever is
earlier.

1. By registry receipt
;and
2. By affidavit of the
person who did the
mailing with a full
statement of:

Affidavit showing
compliance with
Rule 13, Sec. 7
and the registry
receipt issued by
the
mailing
office.

a. date and place of


depositing the mail
in the post office in a
sealed
envelope
addressed to the
court;
b. with postage fully
prepaid
c. with instructions
to the postmaster to
return the mail to
the sender after 10
days if not delivered.
Complete at the time of
such delivery.

4. Substituted
Service

_____________
A: To serve as constructivenotice to those
not parties to the case that the real
property is the subject of a pending
litigation.

G. Section
PENDENS

14.

NOTICE

OF

LIS

Q: What is a notice of lis pendens?


A: It is a notice of the pendency of a real
action which the plaintiff or the defendant
may record in the office of the registry of
deeds where the property subject of the
action is situated. (Riguera, PrimerReviewer on Remedial Law, Vol1.,
2015,page 270)
Q: What is the purpose of a notice of lis
pendens?

The
Notice
Following:

Shall

Contain

The

1. Names of the parties.


2. Object of the action or defense.
3. Description of the property in the
province affected thereby (Section
14).
Q: May a notice of lis pendens be
registered in respect of unregistered
property?
A: Yes, pursuant to Sec, 113(d) of PD
1529. The notice of lis pendens shall be

recorded by annotation on the space


provided therefore in the Registration
Book.

Summons
It is a writ by which the defendant is
notified of the action brought against him.

CONSTRUCTIVE NOTICE
Only from the time of filing such notice
for record shall a purchaser, or
encumbrancer of the property affected
thereby, be deemed to have constructive
notice of the pendency of the action, and
only of its pendency against the parties
designated by their real names.

Jurisdiction over the person of the


defendant in a civil case is acquired either
by his voluntary appearance or service of
summons upon him (Municher v CA, GR
No.142963, 2003).

NOTICE OF LIS PENDENS MAY BE


CANCELLED IN THE FOLLOWING
CASES:
1. Upon order of the court after proper
showing that the notice is for the purpose
of molesting the adverse party, or that it
is not necessary to protect the rights of
the party who cause it to be recorded
(Section 14, Rule 13).

2. By the register of deeds, upon verified


petition of the party who caused its
registration (Sec. 77,PD 1529).
3. After final judgment in favor of the
defendant or other disposition of the
action such as to terminate finally all
rights of the plaintiff in and to the land
and/or building involved, upon the
registration with the register of deeds of a
certificate of the clerk of court in which
the action or proceeding was pending
stating the manner of the disposal
thereof.(Sec. 77, PD 1529)

RULE 14
SUMMONS

Under Rule 14, sec.15, service of


summons only confers jurisdiction over
the res and not over the person of the
defendant:
1. Action in Personam
a. To acquire jurisdiction over the
person of the defendant.
2. Action in Rem or Quasi in Rem
a. To give notice to the defendant
that
an
action
has
been
commence against him
b. To afford the defendant an
opportunity to be heard on the
claim against him.
Notes:
1. Old Rule: the distinction between
the natures of actions was
important for it determines the
mode of service of summons to be
made.
In Santos v PNOC, GR No.170943,
2008, SC held that the in rem or
in personam distinction was
significant because it was silent as
to the kind of action to which the
rule was applicable. Because of
this silence, the court limited the
application of the old rule to in
rem actions only.

Nature and Purpose Of Summons In


Relation To Actions In Personam, In
Rem And Quasi In Rem

77

78
2. Present Rule: states that it is applied
to any action where the defendant is
designated as unknown owner, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained
by diligent inquiry.
It is now applied to any action in
personam, in rem or quasi in rem.
SERVICE
OF
PLEADING,
JUDGMENT
ORDERS
RULE 13
1.
Failure
of
personal service or
service
by
registered
mail
allows service to
the clerk of court
(Substituted
Service).

2. There is service
by registered mail.

SERVICE
SUMMONS
RULE 14

OF

1. In case of failure
of personal service,
summons
should
be:
a. served at the
residence of the
defendant
with
some person of
suitable age and
discretion residing
therein, or
b. by leaving copies
at the defendants
office or regular
place of business
(Substituted
Service).
2. No Service by
registered mail.

Section 1. Clerk to issue Summons


Requisites:
1. Filing of the complaint
2. Payment of the corresponding legal
fees
Section 2. Contents
1. Name of the court and names of the
parties to the action

2. A direction for the defendant to


answer within the time fixed
3. A notice that unless the defendant so
In case the
In case the
defendant had
defendant had
NOT yet
already APPEARED
appeared:
and in court when
amended
complaint was
filed:
A new summon Ordinary service of
must be served that
pleading,
upon
him
as personally
or
regards
the registered
mail,
amended
would be sufficient
complaint,
and
no
new
otherwise
the summons need be
court would have served.
no power to try
the new causes of (Ong v Custodio, GR
action
alleged No.L-14911, 1961).
therein, unless he
had submitted an
answer.
answers, the plaintiff will take
judgment by default and may be
granted the relief applied for.
To Whom Directed.(Sec.2)
It is directed to the defendant, signed by
the clerk of court under seal of his office.
By Whom Served(Sec. 3)
1. Sheriff
2. Sheriffs Deputy
3. Other proper court officer
4. Any suitable person authorized by
the court for justifiable reasons.
Note: The list is exclusive. Hence,
stenographers are not proper court
officers since their function do not relate
to the service of summons and court
processes.

NOTES:
1. Simply sending a copy of the
amended
complaint
to
the
defendant by registered mail is not
equivalent to service of summons
(Ong v Custodio, GR No.L-14911,
1961).

1. Personal Service. (Rule 14, Sec.6)


2. Substituted Service. (Rule 14,
Sec.7)
3. Summons by Publication. (Rule 14,
Sec. 14-16)
4. Extraterritorial service of summons
(Rule 14, Sec. 15)

2. The service upon the defendant a


copy of the court order admitting
the later pleading together with a
copy thereof is not the process
required for bringing him to court
(Fetalino v Sanz, GR N.L-19993,
1923).

Personal Service. (Sec. 6)


1. By handing a copy to the defendant
2. By tendering it to him, should he
refuse to receive it.

When to Serve Summons


Service of summons may be made at
night or on a holiday because of its
ministerial character (Laus v CA, GR No.
101256, 1993).
Return (Sec. 4)
The server shall:
1. Within 5 days after the service of
summons has been completed
2. Must serve a copy of the return to
the plaintiffs counsel personally or
by registered mail
3. Shall return the summons to the
clerk who issued it accompanied by
proof of service.
This will enable the plaintiffs
counsel to move for default order
should defendant fail to answer on
time or in case of non-service,
alias summons may be effected.
Issuance of Alias Summons (Sec. 5)
1. The summons is returned without
being served on any or al of the
defendants.
2. Summons had been lost.
MODES OF SERVICE OF SUMMONS
(PSSE)

Substituted Service. (Sec. 7)


1. Leaving copies of the summons at
the defendants residence with
some person of suitable age and
discretion then residing therein
2. By leaving copies at the defendants
office or regular place of business
with some competent person in
charge thereof.
Requisites
Service:

ForA

Valid

Substituted

1. Personal service of summons within


a reasonable time was possible.
Q:What is a reasonable time for the
sheriff to effect a personal service in
order to demonstrate impossibility of
prompt service?
A:Reasonable time is determined by a
case- to-case basis. One month from the
issuance of summons can be considered
"reasonable time" with regard to personal
service on the defendant (Manotoc v. CA,
G.R. No. 130974, August 16, 2006).
2. Diligent efforts were exerted to
locate the party
For substituted service of summons to
be available, there must be several

79

80
attempts by the sheriff to personally
serve
the
summons
within
a
reasonable period of one month which
eventually resulted in failure to prove
impossibility of prompt service.

faithfully, and fully and any substituted


service other than that authorized by the
Rules is considered ineffective.

"Several Attempts means at least 3


tries, preferably on at least two
different dates. In addition, the sheriff
must cite why such efforts were
unsuccessful. It is only then the
impossibility of service can be
confirmed or accepted (Manotoc v CA,
GR No.130974, 2006).

The Supreme Court has held that an


overly strict application of Rule 14, Sec.7
may be dispensed with if the sheriff was
prevented from effecting substituted
service by the defendant himself or by the
latters own acts.

3. The summons was served upon a


person of sufficient age and discretion
residing at the partys residence or
upon a competent person in charge of
the partys office or place of business.
4. The sheriffs return must specify his
efforts to apply service in person.
SUBSTITUTED SERVICE OF SUMMONS
may still be considered as valid even if the
sheriff failed is state in his return of facts
of the impossibility of prompt service, if
the serve subsequently explains in court
by giving a testimony.
RULE ON COMPLIANCE
General Rule: Strict Compliance Rule
Modes of service must be strictly followed
in order that the court may acquire
jurisdiction over the person of the
defendant (Riano, 2011).
Under the procedural rules, service to the
person of the defendant is generally
preferred over substituted service, the
latter mode of service being a method
extraordinary in character. Hence, the
statutory requirements of substituted
service
must
be
followed
strictly,

Exception: Substantial Compliance

In his Return, the Sheriff declared that he


was refused entry by the security in the
subdivision twice as the defendant
prohibits the latter from allowing anybody
to proceed to her residence whenever she
is out. Obviously, it was impossible for the
sheriff to effect personal or substituted
service of summons upon defendant.
Considering her strict instruction to the
security guard, she must bear its
consequences. It can be considered that
summons was properly served (Robinson
v Miralles, GR No.163584, 2006).

Constructive Service (By Publication)


(Secs. 14-16)
Requires leave of court:
1. Service
upon
defendant
whose
identity or whereabouts are unknown.
(Rule 14, Sec.14)
2. Extraterritorial
service
upon
a
nonresident defendant. (Rule 14,
Sec.15)
3. Service upon a resident temporarily
out of the Philippines. (Rule 14,
Sec.16)
In case a resident defendants identity
or his whereabouts are unknown. (Rule
14, Sec.14)

Summons may be served through


publication upon a resident defendant
whose whereabouts are unknown and
cannot be ascertained by diligent inquiry.
Any
action
includes
actions
personam, in rem and quasi in rem.

in

In case of residents temporarily


outside the Philippines. (Rule 14,
Sec.16)
Summons may be served through:
1. Substituted service or
2. With leave of court, Personal service
out of the Philippines under Rule 14
Sec. 15.
3. By publication
Note: Extraterritorial service is not
mandatory since Sec.16 uses the word
may and thus substituted service of
summons may be resorted to (Palma v
Galvez, 2010; cited in Riguera, 2013).
Extraterritorial Service. (Rule 14, Sec.
15)
By extraterritorial service, the court
acquires jurisdiction over the res and not
over the person of the nonresident
defendant.
When allowed:
1. Action relates to property within the
Philippines
a. In which the defendant has or
claims a lien or interest
b. In which the relief demanded
consists
of
excluding
the
defendant
from
any
interest
therein
2. An action wherein the property of the
defendant has been attached within
the Philippines.

Note: All actions must be against a


nonresident defendant who is not found
in the Philippines.
Modes of Extraterritorial Service
1. Personal Service - outside the
Philippines
2. Publication in a newspaper of
general circulation
Note: In such case, a copy of the
summons and order of the court shall be
sent by registered mail to the known
address of the defendant.
3. Any other manner the court may
deem sufficient
Note: Extraterritorial service may be
validly served by telefax or email as the
rule provides in any other manner the
court may deem sufficient.
Section 17. Leave of Court.
1. Must be made by a motion in writing
2. Supported by affidavit of the plaintiff
or some person on his behalf
3. Set forth the grounds for the
application.
SERVICE OF SUMMONS ON
DIFFERENT ENTITIES
ENTITY TO
SERVED

BE

1.SERVICE UPON
ENTITY
W/O
JURIDICAL
PERSONALITY
(SEC.8)
2.SERVICE UPON
PRISONERS
(SEC.9)

TO
WHOM
SERVICE
SHOULD
BE
MADE
1. All defendants
by serving any of
them; or
2. The person in
charge
of
the
office or place of
business
Upon the officer
having
the
management
of
such
jail
or

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82

3.SERVICE UPON
MINORS
AND
INCOMPETENTS
(SEC.10)

institution (special
sheriff or warden)
In
case
of
minors:
upon
such
minor
personally and on
his legal guardian,
if he has any or
guardian ad litem,
if applied for by
the plaintiff. The
minors father or
mother may also
be served.
In
case
of
incompetents:
upon
such
incompetent
personally and his
legal
guardian,
but
not
his
parents,
unless
they are also his
legal guardians.

4.SERVICE UPON
DOMESTIC
PRIVATE
JURIDICAL
ENTITY (SEC.11)

In either case: if
the
minor
or
incompetent has
no legal guardian,
plaintiff
must
obtain
the
appointment
of
guardian ad litem.
1. President;
2.
Managing
partner;
3.
General
manager;
4.
Corporate
secretary;
5. Treasurer; or
6.
In-house
counsel.
NOTE:

The

5.
SERVICE
UPON FOREIGN
PRIVATE
JURIDICAL
ENTITY (SEC.12)

6.
SERVICE
UPON
PUBLIC
CORPORATIONS.
(SEC.13)

7.
SERVICE
UPON
DEFENDANT
WHOSE
IDENTITY
OR
WHEREABOUTS
ARE
UNKNOWN
(SEC.14)
8.
EXTRATERRITO
RIAL
SERVICE
(SEC.15)

enumeration
is
exclusive.
1. Resident agent
(appointed by the
entity to receive
legal processes);
2. In the absence
thereof, on the
government
official designated
by law; or
3. Any of its
officers or agents
within
the
Philippines.
If the defendant
is the Republic of
the Philippines:
Solicitor General
If defendant is a
province, city or
municipality or
other
public
corporations:
Executive head or
such
other
officer/s
designated under
the law or directed
by the court.
Service may, with
leave of court, be
effected upon the
defendant
by
publication in a
newspaper
of
general
circulation.
1. With leave of
court, by personal
service
outside
the Philippines;
2. With leave of
court,
by
publication in a

9.
SERVICE
UPON
RESIDENTS
TEMPORARILY
OUT
OF
THE
PHILIPPINES
(SEC. 16)

newspaper
of
general
circulation.
In
such case, a copy
of the summons
and order of the
court shall be sent
by registered mail
to the last known
address of the
defendant; or
3.
Any
other
manner the court
may
deem
sufficient.
1.
By
extraterritorial
service; or
2. By substituted
service (Montalban
v. Maximo, G.R.
No.
L-22997,
March 15, 1968)

Section 18. Proof of Service


1. In writing by the server
2. Set forth the manner, place and date
of service
3. Specify any papers which have been
served with the process and the
name of the person who received the
same
4. Must be sworn to when made by a
person other than a sheriff or his
deputy.
Section 19. Proof of Service by
Publication
1. Affidavit of the:
a. printer
b. his foreman
c. principal clerk
d. editor
e. business or advertising manager
to which affidavit, a copy of the
publication shall be attached

2. An affidavit showing the deposit of a


copy of the summons and order for
publication in the post office, postage
prepaid, directed to the defendant by
registered maul to his last known
address.
Remedies of Defendant if Service is
Defective:
1. File a Special Appearance with motion
to dismiss on the ground of improper
service of summons and lack of
jurisdiction (E.B. Villarosa & Partner
Co. Ltd. V Judge Benito, GR
No.136426, 1999).
2. If denied, defendant may file a petition
for certiorari under Rule 65.
Q: What is a Long-Arm Statute?
A: A law or rule that allows a court to
exercise
personal
jurisdiction
over
nonresident defendant, provided that the
defendant
has
sufficient
minimum
contracts with the forum state.
Rule 14, Sec. 15 does not provide for the
acquisition of personal jurisdiction over
the nonresident defendant. The rule
provides for the acquisition of jurisdiction
over the res which is situated in the
Philippines or quasi in rem jurisdiction.
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, 2015).
Section 20. Voluntary Appearance
Voluntary appearance by the defendant is
equivalent to service of summons.
Thus, even if the summons is defective,
jurisdiction over the defendant attaches.
EXAMPLES
OF
SUBMISSION
COURTS JURISDICTION:

TO

83

84
1. Filing a motion for extension to the file
a responsive pleading
2. The
filing
of
affirmative relief.

motions

seeking

motion to dismiss of other grounds aside


from lack of jurisdiction over the
defendant's person shall not be deemed a
voluntary appearance.

RULE 15

To admit answer, for additional time to


MOTIONS
file
answer,
Motion
Pleading
for
Praying
for Directly related to
another
relief the
cause
of Section 1. Definition.
Motion is an application for relief
other than the action or defense.
other than by a pleading.
main cause of
action or the
main defense.
Section 2. Form.
reconsideration of a default judgment
Motion must be in writing.
and to lift order of default with motion
for reconsideration (Oaminal v Castillo,
General Rule: All motions must be in
GR No. 152776, 2003).
writing.
OTHER
FORMS
APPEARANCE:

OF

VOLUNTARY

1. Appearance of counsel in behalf of


defendant
2. Filing of pleadings or papers in court
3. A
telegraphic
motion
for
postponement
4. The filing of a motion for dissolution of
attachment
5. The filing of a motion for extension of
time to file answer.
(Riguera, Primer - Reviewer on
Remedial Law, Vol. I, 2015, page 309)
Q: What is special appearance? Is there
still a need for a special appearance to
contest personal jurisdiction?
A: It is an appearance for the specific
purpose
of
questioning
personal
jurisdiction or the court's subject matter
jurisdiction.
The 1997 Rules of Civil Procedure have
eliminated the need for a special
appearance
to
contest
personal
jurisdiction since the inclusion in a

Exceptions:
1. Those made in open court
2. Those made in the course of hearing
or trial
REQUISITES FOR A VALID MOTION:
1. Must be in writing .(Section 2)
2. Shall state the relief sought to be
obtained and the grounds upon which
it is based
3. Shall be set for hearing by the
applicant and shall contain a notice of
hearing
4. The date of the hearing must not be
later than 10 days after the filing of
the motion
5. The motion and notice of hearing
must be served at least 3 days before
the date of hearing
6. There must be proof of service
Section 3. Contents
1. The relief sought to be obtained
2. The grounds upon which it is based
3. If required by the rules or necessary
to prove facts alleged therein, shall
be accompanied by supporting
affidavits and other papers.

4. If required by the rules or necessary


to prove facts alleged therein, shall be
accompanied by supporting affidavits
and other papers.

Q: What is the effect if a motion set for


hearing is without proof of service?

Section 4. Hearing of Motions.

Section 7. Motion Day.


General Rule: All motions shall be set for
hearing on Friday afternoons, or if Friday
is a non-working holiday, then in the
afternoon of the next working day.

General Rule: Every written motion shall


be set for hearing by the applicant.
Exception: Motions which the court may
act upon without prejudicing the rights of
the adverse party.
Three Day Notice Rule
General Rule: Every written motion shall
be served to the other party at least 3
days before the date of the hearing.
Exceptions:
1. For good cause, the court may set the
hearing on shorter notice
2. Ex parte motions such as judgment
on the pleadings, writ of preliminary
attachment, restraining order and
replevin
3. Motions agreed upon by the parties to
be heard on shorter notice or jointly
submitted by the parties
4. Motions for summary judgment which
must be served at least 10 days before
its hearing.
Section 5. Notice of Hearing.
Requirements:
1. Shall be addressed to all parties
concerned
2. Shall specify the time and date of the
hearing which must not be later than
10 days after the filing of the motion.
Section 6. Proof of Service Necessary.
No written motion shall be acted upon by
the court without proof of service thereof.

A: It shall not be acted upon by the court.

Exception: Motions requiring immediate


actions.
Section 8. Omnibus Motion Rule.
General Rule: A motion attacking a
pleading order, judgment or proceeding
shall include all objections then available
and all objections not so included shall be
deemed waived.
Exceptions: If objections are based on:
1. Lack of jurisdiction over the subject
matter
2. Litis pendentia
3. Res judicata
4. Prescription
LITIGATED AND EX PARTE MOTIONS
1. Litigious Motion (Litigated)
One which the court may not act
upon without prejudicing the rights of
the adverse party.
Made with notice to the adverse party
to give an opportunity to oppose.
Examples:
1. Motion for reconsideration,
2. Motion to dismiss,
3. Motion to declare defendant in
default,
4. Motion for execution
2. Non-litigious Motion (Ex Parte)

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86

One which the court may act upon


without prejudicing the rights of the
adverse party.
Made without the presence or a
notification to the other party because
the question generally presented is
not debatable.
Examples:
1. Motion for extension of time to file
answer
2. Motion for postponement
3. Motion to set case for pre-trial
4. Motion for extension of time to file
record on appeal
PRO-FORMA MOTIONS one which does
not satisfy the requirement of the rules
and one which will be treated as a motion
intended to delay the proceedings (Riano,
2015 citing Marikina Valley Dev't. Corp. v.
Hon. Flojo, G.R. No. 110801, December 8,
1995).

RULE 16
MOTION TO DISMISS
Section 1. Grounds.
1. Lack of jurisdiction over the
person of the defendant
2. Lack of jurisdiction over the
subject matter of the claim
3. Venue is improperly laid
4. Plaintiff has no legal capacity to
sue.
5. There is another action pending
between the same parties for the
same cause (Litis Pendentia)
6. Cause of action is barred by a
prior judgment or by statute of
limitations
(Res
judicata/
Prescription)
7. Lack of Cause of action.

8. Claim or demand in the plaintiffs


pleading has been paid, waived,
abandoned, extinguished
9. Claim on which action is founded
is unenforceable under the statute
of frauds.
10. Condition precedent for filing has
not been complied with (this
includesprior recourse to barangay
conciliation, or failure to make
attempts to reach a
compromise
in cases between members of the
same family)
General Rule: Such grounds which are
not pleaded are deemed waived.
Exception:
1. Lack of jurisdiction over the subject
matter
2. Re judicata
3. Litis pendentia
4. Prescription
General Rule: The court cannot motu
propio dismiss a case UNLESS a motion to
that effect has been filed by the adverse
party.
Exceptions:
1. Rule 9, Section 1 (Lack of jurisdiction
over the subject matter, res judicata, litis
pendentia, prescription);
2. Rule 17,
prosecute)

Section

(Failure

to

3. Section 4 of the Rules on Summary


Procedure (If the case filed falls under the
rules on summary procedure).
Section 2. Hearing of the Motion
General rule: On hearing on a motion to
dimiss, the defendant is allowed to
present evidence to prove the ground/s

Exception:
1.Lack of jurisdiction over the subject
matter
2.The pleading asserting the claim states
no cause of action

3.Order amendment of the pleading (in


case of failure to state a cause of action)
Ordered to be amended: The movant
shall file his answer within 15 days from
the service of the amended pleading,
unless the court provides a longer period.

The requirement under Section 2 Rule 15


is that in the hearing of the motion to
dismiss, the parties shall submit their
evidence on the questions of fact involved.
Hence, affidavits will not suffice to prove
factual questions.

Section 4. Time to Plead

Section 3. Resolution of Motion

When the period for filing the answer has


been suspended, as by defendants filing
of a motion for a bill of particulars, a
motion to dismiss may thereafter be filed
within the remaining period to file the
answer since the time to file the latter is
coterminous with that for the former
(Dumanan, et al. v. Butuan City Rural
Bank, et al., L-27675, Dec. 15, 1982).

1. Grant
2. Deny
3. Order of Amendment
1.Grant remedy of the plaintiff is to file
a motion for reconsideration, to appeal
from the order of dismissal or re-file the
complaint
2.Deny NOT appealable; but defendant
may file a motion for reconsideration or
petition for certiorari, or prohibition if the
court acts without or in excess of
jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
If motion to dismiss isDenied: The
movant shall file his answer within the
balance of the period under Rule 11, but
such period shall not be less than 5 days
in any event.
REMEDIES OF THE DEFENDANT WHEN
THE MOTION IS DENIED
The defendant may:
a. File a motion for reconsideration; or
b. File a petition for certiorari; or
c. Prohibition

Within the time for filing the answer but


before filing said answer, a motion to
dismiss may be filed on any of the
grounds mentioned in Sec. 1.

That the plaintiff has no legal capacity


to sue
Lack of legal capacity to sue means that
the plaintiff is either (a) not in the
exercise of his civil rights (does not have
the necessary qualification to appear at
the trial) or (b) does not have the
character or representation that he claims
(Lunsod v. Ortega, No. 14904 September
19, 1924; Regalado).
Lack Of Legal
Capacity To
Sue
1. Plaintiff does
not possess the
necessary
qualifications to
appear at the
trial.

Lack Of Legal
Personality to
Sue

Plaintiff is not a
real
party
in
interest.

Ex. Minor and

87

88
Insane, who are
incapable
to
exercise in full
their civil rights.
2. Plaintiff does
not have the
character
or
representation
which he claims.

LITIS PENDENTIA(PAR. E)
That there is another action pending
between the same parties for the same
cause.
REQUISITES OF LITIS PENDENTIA:
1. Identity of parties;
2. Substantial identity in the cause of
action and relief sought; and
3. Identity of both cases such that any
judgment that will be rendered in one
case (regardless which party succeeds),
will amount to res judicata in the other
case.
NOTE: The rule will apply once the
complaint is filed and there is a pending
action, lack of knowledge of filing if is of
no moment.
In case of litis pendentia, which one
should be dismissed?
General rule: The later case should be
dismissed based on priority in time rule
and comity with a co-equal court.
Exceptions:
1. The more appropriate action rule
the query is which the more appropriate
action is or which court would be in a
better position to serve the interests of
justice.

2. The Interest of Justice Rule in this


standard, what is asked is which court
would be in a better position to serve the
interests of justice taking into account the
nature of the controversy, the comparative
accessibility of the court to the parties,
and other similar factors.
3. The Anticipatory Rule the first case
shall be abated if it is merely an
anticipatory
action,
or,
more
appropriately, an anticipatory defense
against an expected suit.
RES JUDICATA(PAR. F)
That the cause of action is barred by a
prior judgment or by the statute of
limitations.
The rule that a final judgment or decree
on the merits by a court of competent
jurisdiction is conclusive of the rights of
the parties or their privies in all later
suits on all points and matters
determined in the former suit.
REQUISITES OF RES JUDICATA:
1. There must be a previous final
judgment;
2. The court which rendered it has
jurisdiction over the subject matter
and the parties;
3. There must be between the first and
second actions, identity of parties, of
subject matter and of causes of
action; and
4. The judgment must be on the
merits.
Instances where there is res judicata
even without trial
1. Judgment on the pleadings
(Rule 34);
2. Summary judgment (Rule 35);
3. Order of dismissal (Rule 17,
Section 3) on the ground of failure

to prosecute on the part of the


plaintiff;
4. Judgment
upon
compromise
agreement; and
5. Expropriation case where issue of
interest is not raised.
NOTE: The principle of res judicata
applies to all cases and proceedings,
including land registration and cadastral
proceedings (Republic v. Estenzo, L35376, Sept. 11, 1980).
DUAL ASPECTS OF RES JUDICATA

1.
BAR BY A PRIOR
JUDGMENT

2.
CONCLUSIVENESS
OF JUDGMENT

Bar By Prior

a
former
judgment
bars
the prosecution
of
a
second
action upon the
same
claim,
demand or cause
of action
issues
actually
and
directly
resolved
in
a
former
suit
cannot again be
raised
in
any
future
case
between the same
parties involving
a different cause
of action (also
known
as
preclusion
of
issues
or
collateral
estoppel) (Tan
v. CA, G.R. No.
14240,
August
20, 2001).

Conclusiveness

Judgment
Prior
case
is
conclusive not only
as to the matters
directly adjudge but
also to any other
matter that could
have been raised in
relation thereto.
There is identity in
the cause of action
in
both
cases
involved

of Judgment
Prior
case
is
conclusive only in
respect
of
the
matter
actually
raised
and
adjudged in the
prior case.

(Claim Preclusion) it
precludes
the
prosecution of a
second
cause
of
action
upon
the
same claim, demand
or cause of action.

(Issue Preclusion)
it precludes the
relitigation of a
particular fact or
issue in another
action between the
same parties on a
different cause of
action.

It
bars
relitiagtion of
case.

the
the

A ground for a
motion to dismiss.

The
cause
of
action in the first
case is different
from that in the
second case

It bars only the


relitigation of an
issue.
NOT a ground.

FAILURE TO STATE A CAUSE OF


ACTION
The insufficiency of cause of action must
appear on the face of the complaint.
Test of sufficiency of the facts alleged
in the complaint to constitute a cause
of action: Whether or not, admitting the
facts alleged, the court could render a
valid judgment upon the same in
accordance with the prayer in the
complaint.

89

90
Failure To State
Cause Of Action
1. Relates to the
failure
of
the
allegations of the
pleading to state a
cause of action.

2. Dismissal of
the complaint on
the
ground
of
failure to state a
cause of action
would not bar the
re-filing of the
complaint.

pleaded as affirmative defenses in the


answer and a preliminary hearing may be
had thereon in the discretion of the court.

Lack Of Cause Of
Action
1. Relates to a
failure of proof or
the
plaintiffs
failure to prove by
evidence
his
allegations relating
to his cause of
action.

BAR BY DISMISSAL
Q: If a motion to dismiss is granted,
may the plaintiff still refile the
complaint?
A: Yes, except if the ground for the
dismissal is prescription, unenforceability
of
the
claim,
res
judicata,
and
extinguishment of the claim (Keyword:
PURE. S5 R16. Plaintiff also has to pay
anew the docket and filing fees (PrimerReviewer on REMEDIAL LAW, Manuel R.
Riguera).

2. A judgment for
defendant on the
ground of lack of
cause of action
would amount to
res judicata.

A complaint which contains a premature


cause of action may be dismissed for
failure to state a cause of action.
(Erlanger & Galinger, Inc. v. Villamor, L8767, March 23, 1956)
Section 5. Effect of Dismissal
Complaint On Certain Grounds

of

MOTION TO
DISMISS
RULE 16
1. Filed before the
service and filing of
the answer

DEMURRER TO
EVIDENCE
RULE 33
1. Made after the
plaintiff rests his
case

2. Anchored on many
grounds

2. Anchored on one
ground plaintiff
has no right to
relief

3. If a motion to
dismiss is denied,
the defendant may
file his responsive
pleading

3. The defendant
may present his
evidence

General rule: The action may be re-filed.


Exceptions: The action can no longer be
re-filed if it was dismissed on the grounds
of:
1. Res judicata;
2. Extinguishment of the claim or
demand;
3. Prescription; or
4. Unenforceability of the claim
Section 6. When Grounds Pleaded As
Affirmative Defenses
If no motion to dismiss has been filed, any
of the grounds for dismissal may be

RULE 17
DISMISSAL OF ACTIONS
General Rule:
A complaint shall not be dismissed at the
plaintiffs instance save upon approval of
the court and on such terms and
conditions as the court deems proper.

Section 1. Dismissal Upon Notice By


Plaintiff: Two-Dismissal Rule
Two Dismissal Rule
When the same complaint had twice been
dismissed by the plaintiff under Sec.1 by
simply filing a notice of dismissal, the
second dismissal shall be with prejudice.

REQUISITES:
1. Filing of Notice of Dismissal
2. It must be made at any time before
the service of an answer or a motion
for summary judgment
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. The withdrawal does not take
effect until confirmed by the court.
The two-dismissal rule requires that both
dismissals are granted by a court of
competent jurisdiction.
Effect of Dismissal
General Rule:
prejudice.

Dismissal

is

without

Exceptions:
1. When in the notice of dismissal itself,
the plaintiff himself stated it is
dismissal with prejudice
2. Two-Dismissal Rule - Notice serves as
adjudication upon the merits when
filed by the
plaintiff who has once dismissed in a
competent court an
action based
on or including the same claim
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on the
fact of payment by the defendant of
the claim involved (Regalado).

What causes the loss by a plaintiff of he


right to effect dismissal of the action by
mere notice is the service on the plaintiff
of the answer or motion for summary
judgment. Where the plaintiff filed the
notice of dismissal of his action in the
court after the filing of defendants
answer but before service thereof, the
plaintiffs notice to that effect ipso facto
brought about the dismissal of the
pending action without need of any order
from the trial court (Go v Cruz et al., GR
No. 58986, 1983).
This section is also applicable to special
proceedings (Regalado).
If the plaintiff files a notice of dismissal
providing therein a reason that prevents
the refilling of the complaint, the
dismissal must be deemed one with
prejudice. This happens when the notice
provides that the plaintiff recognizes the
fact of prescription or extinguishment of
the obligation of the defendant or for
reason in Rule 16, Sec.5 (Riano).
Note: A class suit shall not be dismissed
or compromised without the approval of
the court. The reason is for the court to
protect the interests of the members of
the class (Riguera, Primer-Reviewer on
Remedial Law, Civil Procedure, 2015).
Dismissal upon Motion By Plaintiff:
Effect On Existing Counterclaim
Effects of the dismissal upon Motion of
the Plaintiff:
1. Dismissal is without prejudice unless
stated that dismissal is with prejudice
2. Dismissal is also limited to the
complaint and shall not prejudice the
right of the defendant to prosecute his
counterclaim in the same or separate
action.

91

92
Where the plaintiff moves for the
dismissal of his complaint to which a
counterclaim has been interposed, the
dismissal shall be limited to the
complaint.
Dismissal shall be without prejudice to
the right of the defendant to:
1. Prosecute his counterclaim in a
separate action
2. Have the same resolved in the same
action
Should the defendant opt for first
alternative, the court should render
the corresponding order granting and
reserving his right to prosecute his
claim in a separate complaint.
Should he choose to have his
counterclaim disposed of in the same
action wherein the complaint had
been dismissed, he must manifest
such preference to the trial court
within 15 days from notice to him of
plaintiffs motion to dismiss.
These alternative remedies of the
defendant are available to him
regardless if whether his counterclaim
is
compulsory
or
permissive
(Regalado).
EFFECT OF DISMISSAL TO
COMPULSORY COUNTERCLAIM

THE

1. The dismissal of the complaint


carries with it the dismissal of the
compulsory counterclaim.
If the counterclaim was pleaded by the
defendant after service upon him of the
plaintiffs motion for dismissal.
2. The dismissal shall be limited to
the complaint or defendant can

prosecute his counterclaim in a


separate action
If the counterclaim was pleaded by the
defendant before service upon him of the
plaintiffs motion for dismissal.
The defendant can revive the compulsory
counterclaim within 15 days from notice
of such motion.
Section 3. Dismissal Due to the Fault
of Plaintiff.
Grounds:
1. Plaintiff fails to appear on the date of
the presentation of his evidence in
chief
2. Plaintiff fails to prosecute his action
for an unreasonable length of time
3. Plaintiff fails to comply with the Rules
or any order of the court
How Made:
1. Upon motion of the defendant
2. Upon courts own initiative
Effects:
1. Dismissal shall have the effect of
adjudication upon the merits, unless
the court declares otherwise
2. Defendant can still prosecute his
counterclaim in the same or separate
action
Since the plaintiffs presence is now
required only during the presentation of
his evidence in chief, his absence during
the presentation of the evidence of the
defendant or other parties, or even at the
rebuttal or subsequent stages of the trial
is not a ground for dismissal.
Note: It is plaintiffs failure to appear at
the trial and not the absence of his
lawyer,
which
warrants
dismissal
(Regalado).

Section 4. Dismissal of Counterclaims,


Cross-claims or Third-Party Complaint
How made:
1. By notice of the claimant
2. Before a responsive pleading or a
motion for summary judgment is
served or if there is none, before the
introduction of evidence at the trial or
hearing.

RULE 18
PRE-TRIAL
CONCEPT OF PRE-TRIAL
PRE-TRIAL is a mandatory procedural
device by which the court is called upon,
after the filing of the last pleading, to
compel the parties and their lawyers to
appear before it for the purposes
enumerated under Rule 18, Sec.2.
Q: Petitioners were charged of the crime
of estafa by the respondents. One of the
respondents filed a motion to inhibit
against judge A. The case was re-raffled to
judge B. Judge B nullified and set aside
previous proceedings and set the case a
new for pre-trial conference. Can Judge B
nullify the proceedings previously
conducted and ordered a new pre-trial
of the case?
A:No. It cannot simply set aside the
proceedings that have been previously
conducted.
Pre-trial is a procedural
device intended to clarify and limit the
basic issues between the parties and to
take the trial of cases out of the realm of
surprise and maneuvering. Its chief
objective is to simplify, abbreviate and
expedite or dispense with the trial. Absent
any palpable explanation as to why and
how said proceedings were conducted in

violation of the rules should be set aside


(Zaldivar v. Dumasis, Mar. 2, 2016).
Section 1. When conducted.
It shall be the duty of the plaintiff, after
the last pleading has beenserved and
filed, to promptly move ex parte that the
case be set for pre-trial.
The motion is to be filed within 5 days
after the last pleading joining the issue
has been served and filed (Admin Cir. No.
3-99, 1999).
Iftheplaintifffailstofilesaidmotionwithinthe
givenperiod,theClerkofCourtshallissueano
ticeofpre-trial(A.M.No.03-1-09-SC,Re:Pretrialguidelines,EffectiveAugust16,2004).
The
plaintiffneednotwaituntilthelastpleadingh
asbeenactuallyservedand
filed
astheexpirationoftheperiod
forfiling
thelastpleadingwillsuffice(Sarmientov.Jua
n,No.56605 January28,1983).
Section 2. Nature and Purpose.
General Rule: Pre-Trial is mandatory.
Inpre-trial,thecourtshallconsider
thefollowing:
a. Possibility of amicable settlement or
arbitration;
b. Simplificationoftheissues;
c. Thenecessityordesirabilityofamendme
nts tothepleadings;
d. Thepossibilityofobtainingstipulationso
radmissionsoffactsandofdocumentsto
avoidunnecessaryproofs;
Note:
Theprocessofsecuringadmissions,whether
offactsorevidence,
isessentiallyvoluntary.Whenthepartiesare
unabletoarriveatastipulationofagreedfacts
,thecourtmustclosethepre-

93

94
trialandproceedwiththetrialofthecase(Filoil
MarketingCorp.v.DyPac&Co.,G.R.No.2963
6,Sept.30,1982).

Section 4.Appearance of Parties: Effect


of Failure to Appear

PLAINTIFFS
DEFENDANTS
FAILURE TO
FAILURE TO
APPEAR
APPEAR
Dismissal of the
The plaintiff will be
action with
allowed to present
prejudice, unless
evidence ex parte
otherwise
and for the court to
ordered by the
render judgment on
court
the basis thereof
REMEDY
File a motion for reconsideration stating
the reason for failure to appear, the
order be considered and judgment be
set aside.

General Rule: The parties and their

e. Limitationofnumberofwitnesses;
f. Theadvisability
ofpreliminaryreferenceof
issuestoacommissioner;
g. Propriety of rendering judgment on
the pleadings, summaryjudgments, or
of
dismissingtheactionshouldavalidgrou
ndforitsdismissalexist;
h. The
advisability
ornecessityofsuspendingtheproceedin
gs;and
i. Other matter that may aid the prompt
disposition of the action.
Section 3. Notice of Pre-trial.
Towhomserved:
1. Counsel;or
2.
Party,ifhehasnocounsel.
Itshallbetheduty
ofthecounselservedwiththenoticeofpretrialtonotifyhisclientofthedateof
thereof;hence,noticetothecounselwillsuffic
e.

counsel must appear at the pre-trial.


Exceptions:

Non-appearance

is

excused.
1. If a valid cause is shown
2. If a representative shall appear on his
behalf fully authorized in writing to:
a. Enter into amicable settlement
b. To submit to alternative modes of
dispute resolution
c. Enter
into
stipulation
or
admission
of
facts
and
of
documents
Requisites for Valid Authorization:
1. In writing
2. Special power of attorney, there is no
express requirement that it be
notarized but courts require that SPA
must be notarized
3. In case of corporation, there must be
a
board
resolution
specifically
authorizing the same.
Note: The representative need not only
show a written authority but must also
show a written authority but must also
show that there is a valid cause for the
non-appearance of the party whom he
seeks to represent.
Section 5. Effect of Failure to Appear.
The court may, upon motion, dismiss the
complaint and allow the defendant to
present evidence and his counterclaim.
Section 6. Pre-trial Brief: Effect of
Failure to File.
When to file:

At least 3 days before the date of the pretrial.


Note: Failure to file a pre-trial brief shall
have the same effect as non-appearance
at the pre-trial.
Remedy: The defendant who failed to file
his pre-trial brief may file a motion for
reconsideration showing that his failure
to file the same was due to FAME.
Contents:
1. A statement of their willingness to
enter into amicable settlement or
alternative
modes
of
dispute
resolution, indicating the desired
terms thereof.
2. A summary of admitted facts and
proposed stipulation of facts
3. The issues to be tried or resolved
4. The documents or exhibits to be
presented stating the purpose thereof
5. A manifestation of their having availed
or their intention to avail discovery
procedures
or
referral
to
commissioners
6. The number and named of witnesses
and the substance of their respective
testimonies.
Section 7. Record of Pre-trial.
The proceedings of the pre-trial shall be
recorded
Q: What is a Pre-trial Order?
A: It is issued by the court upon the
termination of the pre-trial and shall
recite in detail:
1. Matters taken up in the conference
2. Actions taken
3. Amendments
allowed
to
the
pleadings

4. Agreements or admissions made by


the parties as to any of the matters
considered.
Issues that are impliedly included in the
pre-trial order by necessary implication
are as much integral parts of the pre-trial
order as those expressly stipulated
(Velasco,etal.v.Apostol,etal.,L44588,May9,1989).
CIVIL CASE
1. The presence of
the defendant is
required,

CRIMINAL CASE
1. The presence of
the accused is NOT
indispensable,

Unless he is duly
represented by his
counsel
with
authority to enter
into a compromise
agreement, failure
of which the case
would proceed as
if the defendant
has been declared
in default.
2. The presence of
the
plaintiff is
required at the
pre-trial,

Unless required by
the court, he is just
required to sign the
written
agreement
arrived at the pretrial if he is in
conformity therewith.

Unless excused or
represented
by
person in writing
to perform the
acts specified in
Rule 18, Sec.4.

But must appear at


the arraignment for
the purpose of plea
bargaining,
determination of civil
liability and other
matters requiring his
presence.

Failure of which,
may
result
to
dismissal with or
without prejudice.

2. The offended party


is NOT required to be
present at the pretrial,

If the offended party


fails to appear and
the accused offer to
plea to a lesser
offense, the same
may be allowed with

95

96
the conformity of the
prosecutor alone.
3. A pre-trial brief
is Mandatory.

3. Pre-trial brief is
NOT required
But attendance only
in
a
pre-trial
conference
to
consider the matters
stated in Rule 18,
Sec.2.

Alternative Dispute Resolution


Any process or procedure used to resolve
a dispute or controversy, other than by
adjudication of a presiding judge of a
court or an officer of a government
agency, in which a neutral third party
participates to assist in the resolution of
issues.
This
includes
arbitration,
mediation, conciliation, early neutral
evaluation, mini-trial or any combination
thereof.
Referral to Arbitration
A court before which am action is brought
in a matter which is the subject matter of
an arbitration agreement shall, if at least
one party request not later than the pretrial conference or upon the request of
both parties, refer the parties to
arbitration.
Unless it finds that the arbitration
agreement is null and void, inoperative or
incapable of being performed.
A.M. No. 03-1-09-SC GUIDELINES TO
BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN
THE CONDUCT OF PRE-TRIAL AND
USE OF DEPOSITION-DISCOVERY
MEASURES
The use of pre-trial and the depositiondiscovery measures are undeniably

important and vital components of case


management in trial courts. To abbreviate
court
proceedings,
ensure
prompt
disposition of cases and decongest court
dockets, and to further implement the
pre-trial
guidelines
laid
down
in
Administrative Circular No. 3-99 dated
January 15, 1999 and except as
otherwise
In case efforts during pre-trial to settle
fail, the trial judge shall:
a. Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings and confirm markings of
exhibits or substituted photocopies and
admissions on the genuineness and due
execution of documents;
b. Inquire if there are cases arising out of
the same facts pending before other
courts and order its consolidation if
warranted;
c Inquire if the pleadings are in order. If
not, order the amendments if necessary;
d. Inquire if interlocutory issues are
involved and resolve the same;
e. Consider the adding or dropping of
parties;
f. Scrutinize every single allegation of the
complaint, answer and other pleadings
and attachments thereto and the contents
of documents and all other evidence
identified and pre-marked during pre-trial
in determining further admissions of facts
and documents.
To obtain admissions, the Court shall ask
the parties to submit the depositions
taken under Rule 23, the answers to
written interrogatories under Rule 25 and
the answers to request for admissions by
the adverse party under Rule 26. It may

also require the production of documents


or things requested by a party under Rule
27 and the results of the physical and
mental examination of persons under
Rule 28;
g. Define and simplify the factual and
legal issues arising from the pleadings.
Uncontroverted issues and frivolous
claims or defenses should be eliminated.
For
each
factual
issue,
the
parties/counsel shall state all the
evidence to support their positions
thereon.
For
each
legal
issue,
parties/counsel shall state the applicable
law and jurisprudence supporting their
respective positions thereon. If only legal
issues are presented, the judge shall
require the parties to submit their
respective memoranda and the court can
proceed to render judgment;
h. Determine the propriety of rendering a
summary judgment dismissing the case
based on the disclosures made at the pretrial or a judgment based on the
pleadings,
evidence
identified
and
admissions made during pre-trial;
i. Ask parties to agree on the specific trial
dates for continuous trial in accordance
with Circular No. 1-89 dated January 19,
1989; adhere to the case flow chart
determined by the court, which shall
contain the different stages of the
proceedings up to the promulgation of the
decision and use the time frame for each
stage in setting the trial dates. The OneDay Examination of Witness Rule, that is,
a witness has to be fully examined in one
(1) day only, shall be strictly adhered to
subject to the courts' discretion during
trial on whether or not to extend the
direct and/or cross-examination for
justifiable reasons. On the last hearing
day allotted for each party, he is required
to make his formal offer of evidence after
the presentation of his last witness and

the opposing party is required to


immediately interpose his objection
thereto. Thereafter, the Judge shall make
the ruling on the offer of evidence in open
court. However the judge has the
discretion to allow the offer of evidence in
writing in conformity with Section 35,
Rule 132;
j.
Determine
the
most
important
witnesses to be heard and limit the
number of witnesses (Most Important
Witness Rule). The facts to be proven by
each witness and the approximate
number of hours per witness shall be
fixed;
k. At his discretion, order the parties to
use the affidavits of witnesses as direct
testimonies subject to the right to object
to inadmissible portions thereof and to
the right of cross- examination by the
other party. The affidavits shall be based
on personal knowledge, shall set forth
facts as would be admissible in evidence,
and shall show affirmatively that the
affiant is competent to testify to the
matters stated therein. The affidavits
shall be in question and answer form, and
shall comply with the rules on
admissibility of evidence;
l. Require the parties and/or counsel to
submit to the Branch COC the names,
addresses and contact numbers of the
witnesses to be summoned by subpoena;
m. Order the delegation of the reception of
evidence to the Branch COC under Rule
30; and
n. Refer the case to a trial
commissioner under Rule 32. (Par 5)

by

RULE 19
INTERVENTION

97

98

Intervention
A proceeding in a suit or action by which
a third person is permitted by the court to
become a party by intervening in the
pending case after meeting the conditions
and compliance with the requirement set
by the rules.
Nature: Intervention is ancillary and
supplemental to an existing action.
Hence, it cannot exist independent of the
principal action.
General Rule: The dismissal of the
principal actions will result in the
dismissal
of
the
complaint-inintervention.
Exception: Dismissal as a result of the
compromise agreement.
General
Rule:
discretionary.

Intervention

Exceptions: It is a matter of right.


1. Intervenor turn our to be
indispensable party
2. Class suit

is

disposition of the property in the


custody of the court or of an officer
thereof.
Legal Interest one who has direct or
immediate interest in the cause of action
as pleaded and which would put the
intervenor in a legal position to litigate a
fact alleged in the complaint.

Procedure for Intervention:


1. The intervenor shall file a motion for
intervention attaching the pleadingin-intervention
2. The motion and the pleading shall be
served upon the original parties
3. The answer to the complaint-inintervention shall be filed within 15
days from notice of the order
admitting the same,
Unless a different period is fixed by the
court.

an

Intervention is a prohibited pleading in


forcible entry and unlawful detainer
under Rule 70, Sec. 13.
Section 1: Who may intervene.
Any person who:
1. Has legal interest in the matter in
litigation
2. Has legal interest in the success of
either of the parties
3. Has interest against both parties
4. Is so situated as to be adversely
affected by a distribution or other

Intervention Pro Interesse Suo


It is an intervention by a stranger who
desires to assert a property right in the
res or subject matter of litigation.
Interpleader A special civil action
whereby a person who claims no interest
brings an action against the conflicting
claimants to compel them to interplead
and litigate their several claims among
themselves.
Used to avoid double or multiple liability
on the part of the obligor (Riguera, PrimerReviewer
on
Remedial
Law,
Civil
Procedure, 2013).
INTERVENTION
Ancillary
and
supplemental
to

INTERPLEADER
Original action.

an existing action.
Proper in any of
the
situations
mentioned
in
Section 1 of this
Rule

Defendants
are
already
original
parties
to
the
pending suit.

Plaintiff
either:

must

1. Have no interest
in
the
subject
matter
of
the
action; or
2. Have an interest
therein, in whole
or in part, which
is not disputed by
the other parties
to the action.
Defendants
are
being
sued
precisely
to
implead them.

REQUISITES FOR INTERVENTION


1. There must be a motion for
intervention filed before rendition of
judgment by the trial court
2. The movant must show in his motion:
a. He has legal interest in the
matter in litigation, the success of
either of the parties in the action
or against both parties
b. He is so situated to be adversely
affected by a distribution or other
disposition of the property in the
custody of the court or officer.
c. The intervention must not unduly
delay
or
prejudice
the
adjudication of the rights of
original parties and that the
intervenors right may not be fully
protected
in
a
separate
proceeding.
A leave of court is necessary in order that
the third party may be allowed to
intervene in the action.

Note: An intervention cannot legally alter


the nature of the action and the issue
joined
by
the
original
parties
(Clardidadesv.Mercader,G.R.No.L20341,May14,1966).
Section 2. Time to Intervene.
General Rule: At any time before
rendition of judgment by the trial court.
Q: How to Intervene?
A:The copy of the pleading in intervention
shall be attached to the motion and
served on the original parties.
Exception: With respect to indispensable
parties, intervention was allowed even on
appeal.
Intervention is allowed to protect some
interest which cannot otherwise be
protected and may be allowed for the
purpose of preserving the intervenors
right to appeal.
Section 3. Pleadings-In-Intervention.
1. Complaint-in-intervention

if
interventor asserts a claim against
either or all of the original parties.
2. Answer-in-intervention if intervenor
unites with the defendant in resisting
the claim against the plaintiff.
Section 4. Remedy for the Denial Of
Motion To Intervene
Answer to Complaint-in-intervention.
Must be filed within 15 days from notice
of the order admitting the same, unless
otherwise ordered by the court.
Remedies if motion for intervention is
denied:
1. Appeal

99

100
2. File a petition for mandamus if there
is grave abuse of discretion

other things under his


produce it at the trial.

If the grant of intervention is improper,


the remedy available is certiorari.

2. SUBPOENA DUCES TECUM - An


ordinary subpoena. It requires a person
to whom the order is directed to attend
and testify at the hearing or the trial of an
action or at any investigation conducted
by a competent authority or for the taking
of his deposition.

RULE 20
CALENDAR OF CASES
General Rule
The assignment of cases to the different
branches shall be done exclusively by
raffle. (Sec. 20)
Exception
Cases falling within the jurisdiction of the
special commercial courts or family court
would be assigned to these courts.
Exception to the exception
Two or more brnches have been
designated as special courts, in which
cases it shall be raffled among them.

RULE 21
SUBPOENA
Section 1. SUBPOENA AND SUBPOENA
DUCES TECUM
Subpoena is a process directed to a
person requiring him to either:
1. Attend and to testify at the hearing or
the trial of an action or at any
investigation
conducted
by
a
competent authority
2. Give his deposition
3. Bring with him any nooks, documents
or other things under his control
TWO KINDS OF SUBPOENA
1. SUBPOENA AD TESTIFICANDUM- A
process by which the court, at the
instance of a party, commands him to
bring with him any books, documents or

control

and

Section 2. By whom issued


Q: Who may issue subpoena?
A: Subpoena may be issued by:
1. The court before whom the witness is
required to attend
2. The court of the place where the
deposition is to be taken
3. The officer or body authorized by law
to do so in connection with the
investigations conducted by said
officer or body
4. Any justice of the Supreme Court or
Court of Appeals in any case or
investigation pending within the
Philippines.
Section 3. Form and Contents.
1. State the name of the court
2. State the title of the action or
investigation
3. Be directed to the person whose
attendance is required
4. In case of subpoena duces tecum,
shall also contain a reasonable
description of books, documents or
things demanded
5. The description must appear to the
court prima facie relevant
Section 4. Quashing Of Subpoena
Q: What are the grounds for quashing a
subpoena duces tecum?

A: The court may quash a subpoena


duces tecum upon motion promptly made,
and in any event, at or before the time
specified if:
1. It is unreasonable or oppressive.
2. The relevancy of the books,
documents or things does not
appear
3. The person in whose behalf the
subpoena is issued fails to
advance the reasonable cost of the
production thereof
4. The
witness
fees
and
the
kilometrage allowed by these rules
were not tendered when the
subpoena was served.
Q: What is the ground for quashing a
subpoena ad testificandum?
A: The grounds for Quashing Subpoena
Ad Testificandum are as follows:
1. The witness is not bound, where
the residence is more than 100km
from place of trial
2. The
witness
fees
and
the
kilometrage allowed by these Rules
were not tendered when the
subpoena was served.
VIATORY RIGHT OF A WITNESS
Q: What is the viatory right of a
witness?
A: it is the right of a witness not to be
compelled to attend in court under a
subpoena if the witness resides more
than 100 kilometers from his residence to
the place where he is to testify by the
ordinary
course
of
travel.(Florenz,
Regalado, Remedial Law Compendium
2007)

The right is available only in civil cases.


No viatory right in criminal cases (People
v Montejo, GR No.L-24154, 1967).
Section 5. Subpoena for Deposition.
Proof of service of notice to take
depositions shall constitute sufficient
authorization
for
the
issuance
of
subpoena.
But the clerk shall not issue a subpoena
duces tecum to any person without an
order of the court.
Section 6. Service of Subpoena.
Service of Subpoena shall be in the same
manner as personal or substituted service
of summons.
1. The original shall be exhibited and a
copy of the same shall be delivered to
the person served
2. Tendering to him the fees for one days
attendance and the kilometrage
allowed.
Except: If subpoena is issued by or on
behalf of the Republic of the
Philippines or an officer or agency
thereof, the tender need not be made.
3. If the subpoena is a duces tecum, the
reasonable cost of producing the
books,
documents
or
things
demanded shall also be tendered.
Section 7. Personal Appearance in
Court.
A person present in court before a judicial
officer may be require to testify as if he
were on attendance upon a subpoena
issued by such court or officer.
Section 8. COMPELLING ATTENDANCE
OF WITNESSES

101

102
In case of failure of a witness to attend,
the court or judge issuing the subpoena,
upon proof of the service thereof and of
the failure of the witness, may issue a
warrant to the sheriff of the province, or
his deputy, to arrest the witness and
bring him before the court or officere
where his attendance is required. (Sec. 8)
This is also known as bench warrant.
The court also has the power to punish
for indirect contempt any person who fails
to obey without adequate cause a
subpoena served upon him.
Section 9. CONTEMPT
Consequences for failure to appear:
1. Issue a warrant for the arrest of the
witnesses and bring him in the court
or officer where his attendance is
required
2. Make him pay for the cost of such
warrant and seizure, if the court
should determine that his failure to
answer the subpoena was willful and
without just excuse
3. A contempt of court if there is no
adequate cause to obey a subpoena
4. If the subpoena was not issued by a
court, the disobedience shall be
punished in accordance with the
applicable law or rule.
Section 10.EXCEPTIONS
Compulsion and Contempt do NOT
apply
1. The witness resides more than 100
km from his residence to the place
where he is to testify by the ordinary
course of travel
2. To a detention prisoner if no
permission of the court in which his
case is pending was obtained.
Subpoena

Summons

1. Directed to a
witness

1. Directed to a
defendant in a civil
case

2.
Witness
is
directed to appear
and testify and/or
to
bring
documents

2. Defendant is
informed that a
complaint is filed
against him and he
must
file
a
responsive pleading

3. Witness will be
declared
in
contempt or his
attendance can be
compelled by the
issuance
of
warrant of arrest
4. Applicable to
both criminal and
civil cases
5. There is 100 km
limitation

3. Judgment in
default
will
be
rendered
against
the defendant who
fails to comply

4. Applicable only
to civil cases
5.
No
distance
limitation

RULE 22
COMPUTATION OF TIME
Section 1: How to compute time.
The day of the act or event from which the
designated period of time begins to run is
to be excluded and the date of
performance included.
SATURDAY, SUNDAY OR
LEGAL HOLIDAY
If the last day of the period falls on a
Saturday, Sunday or a Legal Holiday in
the place where the court sits, the time
shall not run until the next working day.
EXAMPLE: If the defendant is served with
summons on June 1, he has until June
16 (June 1 + 15= June 16), within

which to file his answer. If the defendant


receives a copy of the adverse decision on
October 1, he has until October 16 within
which to file a notice of appeal. (Riguera,
Primer-Remedial Law, Vol.1, 2015, page
369)
Section 2: Effect of interruption.
Q: What is the effect of interruption on
the period of time?
A: Should an act be done which
effectively interrupts the running of the
period, the allowable period after such
interruption shall start to run on the day
after notice of the cessation of the cause
thereof.
EXCLUDED: The day of the act that
caused the interruption shall be excluded
in the computation of the period.
EXAMPLE: In the preceding example, if
the defendant filed on June 10 a motion
to dismiss and he received the order
denying the motion to dismiss on July 1,
he has until July 8 (July 2 + 6) within
which to file his answer.
ALLOWABLE PERIOD:
After such interruption (6 days) starts to
run on the day after notice of the
cessation of the interruption's cause,
which is July 2.
MODES OF DISCOVERY
RULES 23-29
Q: What is discovery?
A: 1. A device employed by a party to
obtain information about relevant matters
on the case from the adverse party in
preparation for the trial (Riano, 2014).

2. The modern pre-trial procedure by


which one party gains vital information
concerning the case in order to aid him in
his litigation (Riguera, 2015 citing Steven
Gifis Law Dictionary, 1975).
PURPOSES:
1. To narrow and clarify the basic issues
between the parties
2. To ascertain the facts relative to the
issues
3. Enable the parties to obtain the
fullest possible knowledge of issues
and facts before civil trials.
Q: What is the primary purpose of
discovery?
A:
Theprimarypurposeofdiscoveryistoenablet
hepartiestoobtain
thefullestpossibleknowledgeoftheissuesan
dfactsbeforetrialandthuspreventthesituati
onwheretrialsarecarriedoninthedark.Itma
kes
theparties
lay
downtheircardsonthetablesothatjusticeca
nberenderedonthemeritsofthecase(Riguer
a2015,citingKohv.IAC,144SCRA259).
Modes of Discovery. (PRIDE)
1. Deposition pending action (Rule 23);
or Depositions before action or
pending appeal (Rule 24)
2. Interrogatories to parties (Rule 25)
3. Request for admission by adverse
parties (Rule 26)
4. Motion for production or inspection of
documents or things (Rule 27)
5. Motion for physical and mental
Examination of persons (Rule 28)
Note: Availing modes of discovery is not
mandatory but the failure to avail may be
sanctioned under Rule 25 and 26.

103

104
Bill of Particular
To
compel
to
clarify
vague
statements
of
ultimate facts.

Modes of Discovery
To
compel
other
party to reveal his
evidence
and
evidentiary facts.

Prior Leave of Court Required


Rules 27 and 28 always require prior
leave of court, unlike other modes of
discovery which could be availed of
without leave of court as long as the
defendant has filed or served a responsive
pleading.

RULE 23
DEPOSITIONS PENDING ACTION
Deposition
1. A
writtentestimonyofawitnessgiveninthe
courseofajudicialproceeding
inadvanceofthetrialorhearinguponoral
examinationorinresponsetowritteninte
rrogatoriesand
opportunityisgivenfor
examination

wherean
cross(Republicv

Sandiganbayan,G.R.No.112710,May3
0,2001).
2. Amethodofpretrialdiscoverywhichconsistsintakingth
etestimonyofapersonunderoathuponor
alexamination(oraldeposition)oruponw
ritteninterrogatories.Thetermdepositio
nalsoreferstothetestimonyorstatement
sotaken(Riguera,2013).
CLASSIFICATION OF DEPOSITIONS
1. Depositions on oral examination and
depositions
upon
written
interrogatories
2. Depositions de benne esse (Rule 23)

3. Depositions in perpetualrei memoriam


(Rule 24)
Classification As To:
1. Method of Taking
a. Deposition on oral examination
b. Depositions
upon
written
interrogatories
2. Time of Use
a. Depositions
for
use
during
pending action (Deposition de
benne esse; Rule 23).
b. Depositions for use on future
proceedings or for cases pending
appeal (Deposition in perpetuam
rei memoriam; Rule 24).(Riano,
2011).
USE OF DEPOSITIONS
The purpose of which a deposition may be
used depends on who the deponent is and
on who will be using the deposition. (Rule
23, Sec 4 (c) that lays down the relevant
rules:
1. Any deposition may be used by any
party for the purpose of contradicting
or impeaching the testimony of the
deponent as a witness.
This is a common use of deposition to
impeach a witness under crossexamination.
2. The deposition of a party or anyone
who at the time of the taking the
deposition was an officer, director or
managing agent of a public or private
corporation,
partnership
or
association which is a party may be
used by an adverse party for any
purpose.
3. The deposition of a witness, whether
or not a party, may be used by any
party for any purpose if the court
finds: (DOSUE)

a. That the witness is dead


b. The witness resides at a distance
more than 100 km from the place
of trial or hearing or is out of the
Philippines,
Unless it appears that his absence
was procured by the party offering
deposition.
c. That the witness is unable to
attend or testify because of age,
sickness,
infirmity
or
imprisonment
d. That the party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena
e. Upon application and notice that
such exceptional circumstance
exist as to make it desirable, in
the interest of justice and with due
regard to the importance of
presenting the testimony of the
witness orally in open court, to
allow the deposition in such case
is admissible in evidence as an
exception to the hearsay rule
(AntonioR.Bautista,BasicCivilProce
dure124[2003ed.];UnitedStatesFed
eralRulesofEvidence,Sec.804[b][1]).
Notes:
1. Applies also for depositions under
Rule 24.
2. If deposition is taken not in the same
but in a former case or proceeding, it
is governed by Rule 130, Sec.47
(Riguera, 2015).
3. If only part of a deposition is offered
in evidence by a party, the adverse
party may require him to introduce all
of it which is relevant to the part
introduced, and any party may
introduce any other parts (Rule 23,
Sec.4 (d); Riguera, Primer-Reviewer on
Remedial Law, Civil Procedure).

Q:Are
the
modes
of
discovery
applicable in criminal cases?
A:YES. The use of discovery procedures is
directed to the sound discretion of the
trial judge. The deposition taking cannot
be based nor can it be denied on flimsy
reasons. Discretion has to be exercised in
a reasonable manner and in consonance
with the spirit of the law (People v. Webb,
G.R. No. 132577, August 17, 1999).
Purpose of the Discovery:
It is the policy of the law that the parties
before trial should discover or inform
themselves of all facts relevant to the
action, especially those within the
knowledge of the adverse party or
Sec. 1. Depositions Pending Action.
1. With leave of Court
a. After
jurisdiction
has
been
obtained over any defendant or
over property subject of the action
b. Deposition of a person confined in
prison
2. Without leave of court
After an answer has been served.
General Rule: Plaintiff may not be
permitted to take depositions before
answer is served.
Exception:Under special circumstances
where there is necessity and good reason
for presenting a strong case and taking of
the testimony immediately.
Reason: He must wait for the joinder of
issues because only this time that it can
be determined what is relevant.
Example.Wherethewitnessisagedorinfirm,
ananswerexabudanticautela(outofabunda
nt
cautionortobeonthesafe

105

106
side)doesnotmake their answer less ofan
answerandwhensuch
answerisfiled,depositionmaybemadewitho
utleaveofcourt(Rosetev.LimG.RNo.136051,
June8,2006).

RULE 24
SCOPE OF EXAMINATION
Deponent may be examined regarding any
matter that is:
1. Not privileged
2. Relevant to the subject of the pending
action
3. Not restricted by court order for the
protection of parties and deponents
4. Not meant to annoy, embarrass or
oppress the deponent or party
DEPOSITIONS
1.
Written
testimony
of
witness
in
course
of
judicial
proceedings
in
advance of trial
and hearing.
2. Opportunity
for
crossexamination.
3.
Can
be
competent
testimonial
evidence.

AFFIDAVITS
1. Mere sworn
written
statements.

2.
No
crossexamination.
3. Little probative
value (hearsay).

Sec.3.
Examination
and
CrossExamination.
Examination and cross-examination or
deponents may proceed as permitted at
the trial.
Sec.5. Effectof Substitution of Parties.
Substitution of parties does not affect the
right to use depositions previously taken.

Effect of Taking and Using Depositions


General Rule: A person giving deposition
does not become a witness of the party for
whose benefit the deposition was taken.
Exception: If deposition or any part is
introduced in evidence other than that of
contradicting
or
impeaching
the
deponent, makes the deponent the
witness of the party introducing the
deposition.
Exception to the exception: The
exception does not apply when the party
making use of such is an adverse party.
Reason: Depositions are taken for
discovery and not for use as evidence.
Sec. 6. Objections to Admissibility
Made
Objections may be made at the trial or
hearing to receiving in evidence any
deposition or part thereof for any reason
which would require the exclusion of the
evidence if the witness were then present
and testifying subject to Ruler 23, Sec.29.
As to competency and relevancy of
testimony
Objections to the competency of a witness
or
the
competency,
relevancy
or
materiality of testimony are not waived by
failure to make them before or during the
taking of the deposition,
Unless the ground of the objection is one
which might have been obviated or
removed if presented at the time.
Test to determine whether the ground
of objection have been obviated:
Whether the objection will give the other
party an opportunity to cure the
deficiency of his proof.

Example: The lack of qualification of an


expert which may be cured by objecting at
the time of the taking of the deposition.
As to form of notice and disqualification of
officer
1. All errors and irregularities in the
notice for taking a deposition are
waived.
Unless written objection is promptly
served upon the party giving the
notice.
2. Objections to taking a deposition
because of disqualification of the
officer before whom the taking of the
deposition begins or as soon as the
disqualification becomes known or
could be discovered with reasonable
diligence (Riguera, 2013).
Sec.
10.
Persons
before
whom
depositions may be taken WITHIN THE
PHILIPPINES.
1. Judge
2. Notary Public
3. Any person authorized to administer
oaths if the parties so stipulate in
writing.
Sec.
11.
Persons
before
whom
deposition may be taken IN FOREIGN
COUNTRIES.
1. On notice, before a secretary of any
embassy or legation, consul-general,
consul, vice-consul, consular agent of
the Philippines
2. Before such person or officer as may
be appointed by commission or under
letters rogatories
3. Any person authorized to administer
oaths if the parties so stipulate
Letters Rogatory
An instrument sent in the name and by
the authority of a judge or court to

another, requesting the latter to cause to


be examined upon interrogatories filed in
a cause pending before the former, a
witness who is within the jurisdiction of
the judge or court whom such letters are
addressed
(DasmarinasGarmentsvs.Reyes,G.R.No.10
8229,August24,1993).
Sec.12.Commission
Rogatory.

or

Letters

When issued
1. Only when necessary and convenient
2. On application and notice
3. On such terms and with such
direction as are just and appropriate.

Commission
1. Issued to a
non-judicial
foreign
officer
who
will
directly
take
the testimony.

Letters Rogatory
1.
Issued
to
the
appropriate
judicial
officer of the foreign
court who will direct
another person in that
country to take down
testimony.

2.
Rules
of
procedure
of
the requesting
court
shall
apply.
3. Resorted to if
permission
of
the
foreign
country
is
given.
4.
Leave
of
court is not
necessary.

2. Rules of procedure of
the
foreign
court
requested to act shall
apply.
3. Resorted to if the
execution
of
the
commission is refused in
the foreign country.
4. Leave of
necessary.

court

is

Sec. 13. Disqualification by Interest.


Persons disqualified to take depositions
1. Relative
within
6th
degree
of
consanguinity or affinity of any party

107

108
2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of
partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the
action.
Sec. 14. .Stipulations regarding taking
of Depositions.
The parties may stipulate in writing that
depositions shall be taken before any
person authorized to administer oaths in
accordance with the Rules.
Section
15.Deposition
Examination.

upon

Oral

Requisites:
1. Give notice to every other party to the
action
2. Notice shall state the time and place
for the taking of deposition and the
names and address of each person to
be examined, if known or if not
known, then a general description
sufficient to identify him.
Section 16. Order for the protection of
parties and deponents.
After notice is served for taking a
deposition by oral examination, upon
motion seasonably made by any party or
by the person to be examined for good
cause shown, the court in which the
action is pending may make an order
that:
1. The deposition shall not be taken
2. It may be taken only at some
designated place other than that
stated in the notice
3. It may be taken only on written
interrogatories
4. Certain matters shall not be inquired
into

5. The scope of the examination shall be


held with no one present except the
parties to the action and their officer
or counsel
6. After being sealed the deposition shall
be opened only by order of the court
7. Secret process, developments or
research need not be disclosed
8. The parties shall simultaneously file
specified documents r information
enclosed in sealed envelopes to be
opened as directed by the court
9. The court may make any other order
which justice requires to protect the
party or witness from annoyance,
embarrassment or oppression.
Section 17. Record of examination,
oath,
objections.
The witness shall be placed under oath:
1. Testimony of the witness shall be
recorded
2. The testimony shall be recorded
stenographically unless parties agrees
otherwise
3. All objections made, or the manner of
taking it or evidence presented shall
be noted by the officer
Section 18.When May Taking of
Deposition Be Terminated Or Its Scope
Limited.
At any time during the taking of
depositions, on motion or petition of any
party or of the deponent.
There must be a showing that:
a. Examination is being conducted in
bad faith
b. In such manner as unreasonably
to annoy, embarrass or oppress
the deponent or party.
Section 19. Submission to Witness.

The deposition shall be submitted to the


witness for examination and shall be read
to our by him, unless such examination
and reading are waived by the witness
and the parties.
Any change in form or substance which
the witness desired to make shall be
entered upon the deposition by the officer
with a statement of the reasons of the
witness for making them.
The deposition shall then be signed by the
witness, unless the parties by stipulation
waive the signing or the witness is ill or
cannot be found refuses to sign.
Section 20. Certification and Filing by
Officer.
The court may order the party giving
notice:
1. To pay the other party the amount of
the reasonable expenses incurred by
him and his counsel
2. Including reasonable attorneys fees.
Section 25. Deposition upon Written
Interrogatories.
How made:
1. Serve upon every other party:
a. A notice stating the name and
address of the party who is to
answer them and
b. The name or descriptive title and
address of the officer who is to
take the deposition
2. The party so served may within 10
days from receipt of notice, serve
cross-interrogatories upon the party
proposing to take the deposition
3. Within 5 days thereafter, the latter
may serve re-direct interrogatories
upon the party who has served crossinterrogatories.

Note: Within 3 days after being served


with redirect interrogatories, a party may
serve recross-interrogatories upon the
party proposing to take the deposition.
Deposition
Upon Oral
Examination
Questions
and answers
are oral.

Deposition Upon
Written Interrogatories
Questions are prepared
already in advance and
there is no personal
confrontation with the
witness.

Section 29. Effect of Errors


Irregularities In Depositions.

And

EFFECT

As to notice

As to
disqualification
of officer

As to
competency or
relevancy of
evidence

As to oral

Waived. Unless written


interrogatories
is
promptly served upon
the party giving the
notice.

Waived. Unless made


before the taking of
the deposition begins
or as soon thereafter
as the disqualification
becomes known or
could be discovered
with
reasonable
diligence.
Not waived. Unless the
ground
of
the
objection is one which
might
have
been
obviated or removed if
presented
at
that
time.
Waived.

Unless

109

110
examination
and other
particular

As to form of
written
interrogatories

As to matter of
preparation

reasonable objection
thereto is made at the
taking
of
the
deposition.
Waived. Unless served
in writing upon the
party
propounding
them within the time
allowed for serving
succeeding cross or
other interrogatories
and within 3 days
after service of the last
interrogatories
authorized.
Waived.
Unless
a
motion to suppress
the deposition or some
part thereof is made
with
reasonable
promptness after such
defect is or with due
diligence might have
been ascertained.

RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
Depositions
in
perpetuam
rei
memoriam
Taken to perpetuate evidence for purpose
of an anticipated action or further
proceedings in a case or appeal.
Sec. 1.Depositions Before Action.
May be filed by any person:
1. Desiring to perpetuate his own
testimony
2. That of another person regarding any
matter that may be cognizable in any
court of the Philippines may file a

verified petition in the court of the


place of the residence of any expected
adverse party.
Note: Sec.1 may not be availed of in
criminal cases, but the procedure in
Sec.7 is available in all actions including
criminal cases (Regalado, 2010).
Sec.2. Contents of the Petition.
1. That petitioner expects to be a party
to an action in a court of the
Philippines but is presently unable to
bring it or cause it to be brought
2. The subject matter of the expected
action and his interest therein
3. The facts which he desires to establish
by the proposed testimony and his
reasons for desiring to perpetuate it
4. The names or description of the
persons he expects will be the adverse
parties and their addresses so far as
known
5. The name and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each.
Sec. 3. Notice and Service
1. The petitioner shall serve notice upon
each person named in the petition as
an expected adverse party together
with a copy of the petition
2. At least 20 days before the date of the
hearing, the court shall cause notice
to be served on the parties and
prospective deponents.
Use of Deposition. Sec.6.
It may be used in any action involving the
same
subject
matter
subsequently
brought in accordance with the provisions
of Rule 23, Secs. 4 and 5. (IPD)
Depositions Pending Appeal. (Sec.7)
The court which rendered judgment may
allow the taking of depositions of

witnesses to perpetuate their testimony


for use in the event of further proceedings
in the said court in order to avoid a
failure or delay of justice.
Requisites:
1. Make a motion for leave to take the
deposition
2. Motions shall state:
a. The named and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each
b. The reason for perpetuating their
testimony.
When may taking of deposition be
terminated or its scope limited
At any time during the taking of the
deposition, on motion or petition of any
party or of deponent.
There must be showing that:
1. Examination is being conducted in
bad faith
2. In such manner as unreasonably to
annoy, embarrass or oppress the
deponent or party.
Order for the Protection of Parties and
Deponents. Sec. 16.
Requisites:
1. Motion by party or person to be
examined
2. Motion seasonably filed
3. There is good cause shown
4. Notice of motion served to the other
party

RULE 25
INTERROGATORIES TO PARTIES
Purpose: To elicit material and relevant
facts from any adverse party.

Section 1.Interrogation to Parties.


1. With Leave of Court before the
answer has been served.
2. Without Leave of Court after the
answer has been served with respect
to the first set of interrogatories.

Deponent

Procedure

Deposition
upon Written
Interrogatori
es to Parties
Rule 23
Party
or
ordinary
witness
With
intervention
of the officer
authorized by
the court to
take
deportation

Interrogatori
es to Parties
Rule 25

Party only
No
intervention.
The
written
interrogatories
are directed to
the
party
himself.

Direct, Cross, Only one set of


PROTECTION
MOTION TO
Re-direct, Re- interrogatories
Scope
ORDER
TERMINATION OR
direct Cross
is allowed
LIMIT
EXAMINATION
Deponent
is
1. Granted by the 1. Granted
by 15
thedays
given
court
for
the court
for
the
to
answer
Period to
protection of the
protection
of
the
party
No
fixed
time
unless
Answer
party
or witness or witness extended
at any time or
before the taking during thereduced
taking by
of the
of the deposition the deposition.
court
but after notice
for the taking
Questions are
Questions
thereof is served.
prepared
2. Motion must
2. Motion must be file
beforehand
be
seasonably
and by any party or by the
filed by any party
personto Questioning
to
be is
submitted
or by the person
the examined. direct.
to be examined.deposition
3. Good cause
officer3. Must
who be shown tat
must be shownwill ask
the the
examination is
conducted:
deponent and
recorda. In bad
the faith
b. In such a manner
as to unreasonably
annoy, embarrass or
oppress the deponent
or party.

111

112
1. To give testimony in open court
2. To give a deposition pending appeal.

answer.
Consequences 0f Refusal to Answer.
Rule 29, Sec. 5.
The court on motion and notice may:
1. Strike out all or any party of any
pleading of disobedient party
2. Dismiss the action or proceeding or
any party thereof
3. Enter a judgment by default against
disobedient party
4. Order
payment
of
reasonable
expenses incurred by the other
including attorneys fees.
Answer to Interrogatories. Rule 25, Sec.
2.
1. In writing
2. Signed and sworn to by the person
making them
3. Party served shall file and serve a
copy of the answers on the party
submitting the interrogatories within
15 days from service,
Unless the court extends or shortens the
time on motion and for good cause.

Thus
a
party
not
served
with
interrogatories may no be called as an
adverse party witness by the other side
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, 2013).
Exception:Allowed by the court:
1. For good cause shown
2. To prevent a failure of justice
A.M. No. 03-1-09-SC
GUIDELINES TO BE OBSERVED BY
TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF
PRE-TRIAL AND USE OF
DEPOSITION-DICVOERY MEASURES
Existingrulesconsiderthismodeof
discoveryimportantbecausewithinoneday
fromreceiptofthecomplaint,therulemanda
tesnotonlythepreparationofthesummons
butalsotheissuanceofanorderrequiringth
epartiestoavailofinterrogatoriestoparties
underRule25andrequestforadmissionbya
dversepartyunderRule26.

Section 3. Objection to Interrogatories.


1. May be presented to the court within
10 days after service
2. With notice
3. Objections must be resolved before
the answers are served
Note: A judgment by default may be
rendered against a party who fails to
answer written interrogatories.
Sec.6.Effect of Failure
Written Interrogatories

To

Serve

General Rule: A party not served with


such may not be compelled by the adverse
party to:

Theparties,however,mayuseattheirdiscreti
on, depositions under Rule 23 or other
measures
underRule27and29within
5 daysfromthefilingoftheanswer
(Riano2011,citingA.M.No.03-1-09SC,IA,1.1,1.2)

RULE 26
ADMISSION OF ADVERSE PARTY
REQUEST FOR ADMISSION
Sec. 1. When to file and serve.
At any time after issues have been joined.

To whom the request for admission is


served; effect of improper service
A request for admission must be served
directly upon the party requested.
Otherwise, cannot be deemed to have
admitted the genuineness of any relevant
matters of fact set forth on account of
failure to answer the request for
admission (Lanada v CA, 2002).
Request may include:
1. Admission of the genuineness of any
material and relevant document
described in an exhibited with the
request
2. Admission of the truth of any material
and relevant matter of fact set forth in
the request
3. A matter of fact not related to any
document for admission or denial by
the other party.
Purpose: To allow one party to request
the adverse party in writing to admit
certain material and relevant matters
which most likely will be disputed during
the trial.
Section 2. Implied
Adverse Party.

Admission

By

Which shall not be less than 15 days after


service or within such further time as the
court may allow on motion.
2. When the request for admission is not
directly served upon the party
requested,
The party requested cannot be
deemed
to
have
admitted
the
genuineness of any relevant matters of
fact set forth therein on account of
failure to answer the request for
admission (Lanada v CA, 2002).
Judicial Notice of Courts on Admission
Not Offered in Evidence
The court may take judicial notice of the
admission not offered as evidence
because it already forms part of the
record.
Request for Admission of Matters
Already Denied in the Answer to the
Complaint
Request for admission is not proper where
the subject matters are the same as the
ultimate facts alleged in the requesting
partys complaint for which the requested
party had already denied in his answer
(Lanada v CA, 2002).

General Rule: Each of the matter


requested to be admitted shall be deemed
admitted if the party served fails to make
a reply.

Note: A party should not be required to


make a second denial of those already
denied in his answer to the complaint
(Lanada v CA, 2002).

Exceptions:
1. The requested party files and serves
upon the party requesting the
admission a sworn statement either:
a. Specifically denying
b. Setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters

Section 2. Consequences of Failure to


Answer Request for Admission
Each of the matter requested to be
admitted shall be deemed admitted if the
party served fails to make a reply. (Sec. 2,
Rule 26)
When the response to the request for
admissions are not timely served, then

113

114
they are deemed admitted, and one
cannot be permitted at time of trial to
introduce evidence that would controvert
the deemed admission.

PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS.

Effect of Admission

Production or inspection of documents


or things:

Admission made is:


1. Only for the purpose of the
pending action; and
2. May not be used in any other
proceeding.
3. Not final and irrevocable.

1. Applies only to pending actions


2. Documents or things subject of the
motion
must
be
within
the
possession, control or custody of the
party against whom the order is
directed.

Section 5.Effect of Failure to File and


Serve Requests for Admission.

Purpose: To allow a party to seek an


order from the order in which the action
is pending to:
a. Order any party to produce and
permit the inspection and copying or
photographing,byoronbehalfofthemov
ingparty,ofanydesignateddocuments,
papers,books,accounts,letters,photog
raphs,objectsortangiblethings,notpriv
ileged,whichconstituteorcontainevide
ncematerialtoanymatterinvolvedinthe
actionandwhichareinhispossession,c
ustodyandcontrol.
b. Order
any
party
to
permit
entryupon designated land and other
property
inhis
possessionorcontrolforthepurposeofi
nspecting,measuring,surveying,orph
otographingthepropertyoranydesignat
edrelevantobjectoroperationthereon.

The party who fails to file and serve a


request for admission on the adverse
party of material facts at issue which are
or ought to be within the personal
knowledge of the latter, shall not be
permitted to present evidence,
Unless otherwise allowed by the court for
good cause shown and to prevent failure
of justice.
Request for
Admission
Proper when the
genuineness
of
an
action
evidentiary
document
is
sough
to
be
admitted.
If
not
denied
under oath, its
genuineness
is
deemed impliedly
admitted.
(Rule
26)

Actionable
Document
Must be attached
to the complaint or
copied therein.
Its
genuineness
and de execution is
deemed
unless
specifically denied
under oath by the
opposing
party.
(Rule 8)

RULE 27

Requisites:
1. Motion by leave of court must be filed
by a party showing good cause
2. Notice of the motion must be given to
all other parties
3. Motion must sufficiently describe the
document or thing sought to be
produced or inspected
4. The document or the thing must
constitute
or
contain
evidence
material to the pending action
5. The document or the thing must not
be privileged

6. The document or thing must be in the


possession of the adverse party, or at
least under his control.
Contents of Order for Production or
Inspection
1. Shall specify the time, place and
manner of making the inspection and
taking copies
2. May describe such terms and
conditions which are just.
PRODUCTION
OR INSPECTION
OF DOCUMENTS
OR THINGS
RULE 27
1.
Modes
of
Discovery

SUBPOENA
DUCES TECUM
RULE 21

1.
Means
of
compelling
production
of
evidence
which
must be brought to
court

2.
Limited
to
parties in the
action

2. May be directed
to
any
person,
whether a part or
not

3. Issued only
upon motion with
notice to adverse
party

3. May be issued
upon an ex-parte
application

Objectsortangiblethings
The court can compel the plaintiff,under
thisRule,to
consentto
theexhumation
ofthebodyof
thedeceasedinacaseinvolvingtheaccident
aldeathclauseofaninsurancepolicyconsid
eringthatSec.1ofthisRulealsospeaksofobj
ectsortangiblethings"whichisbroadenough
toincludeacadaver.
Ontheotherhand,Rule23cannotbeinvoked
forthesamepurposeasitcontemplatesandis

limited
tophysical
andmental
examinationofalivingperson.Therewouldbe
,however,noproblemiftheexhumationorpos
tmortemexaminationisinvolvedinandneces
saryforpurposesofacriminalaction(Regala
do).

RULE 28
PHYSICAL AND MENTAL
EXAMINATION OF PERSONS.
Physical and Mental Examination of
Persons
This mode of discovery is available in an
action which the mental or physical
condition of a party is in controversy.
Examples.
1. Annulment of contract on the ground
of insanity
2. Petition for guardianship of a person
alleged to be insane
3. Action for damages where the issues
is
the
extent
of
injuries
of
plaintiff(Riano).
Section 1. Order of Examination.
In an action in which the mental or
physical condition of a party is in
controversy, the court in which the action
is pending may in its discretion, order
him to submit to a physical or mental
examination by a physician.
Since the results of the examination are
intended to be made public, the same are
not covered by the physician-patient
privilege. Furthermore such examination
is not necessary to treat or cure the
patient but to assess the extent of injury
or to evaluate his physical or mental
condition (Rule 130, Sec. 24[c]).
Section 2.Requisites:
1. Physical or mental condition must be
the subject of controversy

115

116
2. Motion showing good cause must be
filed
3. Notice of motion must be given to the
party to be examined and to all other
parties
Section 3.Report of Findings.
A copy of the detailed written report of the
examining physician may be delivered
tothe party examined, if the latter should
request.
Section 4.Waiver of Privilege.
A party examined waives any privilege he
may have in that action or any other
involving the same controversy:
a. By requesting and obtaining a report
of the examination so ordered; or
b. By taking the deposition of the
examiner.
CONSEQUENCES OF REQUESTING AND
OBTAINING
A
REPORT
OF
EXAMINATION
Where the party examined requests and
obtains a report on the results of the
examination, the consequences are that:
1. He has to furnish the other party a
copy of the report of any previous or
subsequent examination of the same
physical and mental examination; and
2. He waives any privilege he may have
in that action or any other involving
the same controversy regarding the
testimony of any other person who
has so examined him or may
thereafter examine him (Regalado).
PriorLeaveofCourtRequired
Rules
27and28alwaysrequireprior
leaveof
court,unlikeothermodesofdiscoverywhichc
ouldbeavailedofwithoutleaveofcourtaslong
asthedefendanthasfiledorservedaresponsi
vepleading.

RULE 29

CONSEQUENCES OF REFUSAL
TO COMPLY WITH MODES OF
DISCOVERY
Sanctions:
Section 1. Refusal to answer any
question.
1. Examination may be completed on
other matters, or adjourned, as the
proponent of the question may prefer;
2. Upon application by the proponent,
the court may compel the deponent to
answer the questions;
3. If the refusal was without substantial
justification, court may require the
refusing party or deponent or the
counsel advising the refusal or both of
them, to pay the proponent the
amount of the reasonable expenses
incurred in obtaining the order,
including attorneys fees.
Note: The remedies above are available
under Rule 23 and Rule 25.
Sec. 2. Refusal to be sworn.
If a party or other witness refuses to be
sworn or refuses to answer question after
being directed to do so by the court of the
place in which deposition is being taken,
such refusal may considered a contempt
of that court.
Section
3.
Refusal
to
answer
designated or particular questions or
refusal to produce documents or things
or to submit to physical examination
1. Order that the matters regarding
which questions were asked shall be
taken to be established for purposes
of the action in accordance with the
claim of the party obtaining the order;
2. Refuse to allow the disobedient party
to support or oppose designated
claims or defenses;

3. Strike out all or any part of the


pleading of the disobedient party;
4. In lieu of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of any
party for disobeying any such orders,
except an order to submit to a
physical or mental examination.
Section 4. Refusal to admit.
Thecourtuponproperapplicationmayordert
heformertopay
thereasonableexpensesinmakingsuchproo
f,includingattorneysfees. If:
1. A party requests for the admission of
either:
a. The
genuineness
of
anydocument,or
b. The truthofanymatteroffact
2. The party requested refuses to admit
the same and thereafter serves a
sworn denial thereof, and;
3. The party requesting for admission
proves
the
genuineness
or
truthfulness, as the case may
be;then,thepartyrequesting
fortheadmissionmayapplytothecourtfo
ranorderrequiringtheadversepartytopa
yreasonableexpensesincurredinmakin
gsuchproof,includingattorney'sfees.
Section
5.
Failure
to
attend
depositions or to serve answers to
interrogatories.
1. Strikeoutalloranypartofthepleadingof
thedisobedientparty;
2. Renderajudgmentbydefaultagainstthe
disobedientparty;
3. Orderhimtopayreasonableexpensesinc
urredbytheother,includingattorneysfe
es.
Othersanctions:
1. Stay further proceedings until order
is obeyed;
2. Dismisstheactionorproceeding;
3. Arrestthedisobedientpartyorhisagent.

Notes:
1. TheRepublicofthePhilippinescannotbe
requiredtopayexpensesandattorneysf
eesunderthisRule.
2. Thematterofhowand
whentheabovesanctionsshouldbeappl
iedisonethatprimarilyrestsonthesoun
ddiscretionofthecourtwherethecaseis
pending

RULE 30
TRIAL
Itisanexaminationbeforeacompetentcourto
rtribunalofthefactsorlawputinissueinacas
eforthepurposeofdeterminingsuchissue.
Inalimitedsense,trialreferstothestageofaca
se when the parties present their
evidence
before
thecourtuptothepointwhenthecaseisdeem
edsubmittedfordecision (Riguera2015).
General Rule: Decision should not be
madewithouttrial.
Exceptions:Whenistherejudgmentwithout
trial:
1. Judgmentonthepleading(Rule34);
2. Summaryjudgment(Rule35);
3. Judgmentoncompromise;
4. Judgmentbyconfession;
5. Dismissalwithprejudice(Rule17);
6. JudgmentunderRuleon
SummaryProcedure;
7. Stipulationoffacts.(Sec.6Rule30)
Sec.1. Notice of Trial.
Theclerkshallnotifythepartiesofthedateof
trial,uponentryofthecaseinthetrialcalenda
r
in
such
manner
asshallensuretheirreceiptofthatnoticeatlea
st5daysbefore suchdate.

117

118
Sec.2.Adjournment
Postponements.

and

General Rule: A court may adjourn a


trial from day to day and to any stated
time
Exception: The court can go beyond the
period provided by law when authorized
in writing by the Supreme Court.
Limitations: The court shall have no
power to:
1. Adjourn a trial for more than 1 month
for each adjournment
2. More than 3 months in all
Except when authorized in writing by
the Supreme Court.
Sec. 3 .Requisites Of Motion to
Postpone Trial.
A. For Absence of Evidence
1. A motion to postpone trial on the
ground of absence of evidence
must be filed
2. Motion must be supported by a
verified affidavits showing:
a. Materiality or relevancy of
such evidence
b. That due diligence has been
used to procure it

a. That the presence of such


party or counsel at the trial
is indispensable
b. The character of his illness is
such as to rende his nonattendance excusable.
Note: Motion for postponement
discretionary to the court.

is

Section 6. Agreed Statement of Facts.


Agreement as to statement of facts must
be in writing although it may also be
verbally made in court.
If the parties agree only on some of the
facts, trial shall be held as to the disputed
facts.
JUDGMENT BASED ON STIPULATION
OF FACTS
General Rule: Parties agree in writing
upon the facts involved in the litigation,
they will submit the agreed facts or the
case for decision.
Exception:
Judgment
based
on
stipulation of facts is not allowed in
actions for declaration of nullity of
marriage, annulment of marriage and
legal separation (Riguera, 2013, citing
Arts. 48 & 60 of Family Code).

Note: If the adverse party admits the facts


to be given in evidence, the trial shall not
be postponed even if he objects or
reserves the right to object their
admissibility.

Rationale: The agreed statement of facts


is conclusive on the party and court.
Neither of the parties may withdraw from
the agreement.

B. For Illness of Party or Counsel.


1. A motion to postpone trial on the
ground of illness of a party or
counsel must be filed
2. The motion must be supported by
an affidavit or sworn certification
showing:

Section 7. Statement of Judge.


Any statement made by the judge with
reference to the case or to any of the
parties, the witnesses or counsel, in the
course of the hearing or trial of a case
shall be made of record in the
stenographic notes.
Section 8. Suspension of Actions

(Sec.8 and Art.2030 of the Civil Code).


ARTICLE 2030: Every civil action or
proceeding shall be suspended:
1. The willingness to discuss a possible
compromise is expressed by on or
both parties
2. Appears that one of the parties before
the commencement of action offered
to discuss a possible compromise but
the other party refused the offer.
Section 5. Order of Trial; Reversal of
Order.
Thetrialshallbelimitedtotheissuesstatedint
hepre-trialorderandshallproceedasfollows:
1. Theplaintiffshalladduceevidenceinsup
portofhisclaimorcauseofaction(evidenc
einchief);
2. Thedefendantshallthenadduceevidenc
einsupportofhisdefense,counterclaim,
cross-claim,andthird-partycomplaint;
rd
3. The3 partydefendant,ifany,shalladdu
ceevidenceofhisdefense,counterclaim,c
th
ross- claim,and4 partycomplaint;
th
4. The4 party
andsoforth,ifany,shalladduceevidence
of the material facts pleaded by them;
5. Thepartiesagainstwhomanycountercla
imor cross-claim has been pleaded,
shall
adduce
evidenceinsupportoftheirdefense,inthe
ordertobeprescribedbythecourt;
6. Thepartiesmaythenrespectivelyadduce
rebuttingevidenceonly,unlessthecourt,
forgoodreasonsand
inthefurtheranceofjustice,permitsthe
mtoadduceevidenceupontheiroriginalc
ase;and
7. Uponadmissionofthe
evidence,thecaseshall
bedeemedsubmittedfordecision,unless
the
court
directs
theparties
toargueortosubmittheirrespectivemem
orandaoranyfurtherpleadings.

Note: Ifthereareseveraldefendants,orthird
partydefendantsandsoforth,whohavesepar
atedefenses,thecourtshalldeterminetherel
ativeorderofpresentationoftheirevidence.
Trial
in
reverse
defendantpresentsevidenceaheadoftheplai
ntiff.
Whenproper
If the defendant instead of filing a motion
to dismiss files an answer, invoking the
ground as an affirmative defense.
DELEGATION OF RECEPTION OF
EVIDENCE
Section 9. Judge to receive evidence;
Delegation to clerk of court.
General rule: The judge shall personally
receive the evidence adduced by the
parties and resolve any objections to any
question or to the admission of exhibits.
Exception:The
reception
may
delegated to the clerk of court: (DEW)

be

1. In default or ex parte hearings; and


2. In any case where the parties agree in
writing.

RULE 31
CONSOLIDATION OR
SEVERANCE
Consolidation or Severance of Hearing
or Trial
Consolidation
of
Action

is
interchangeable with joint trial although
the former includes the situation wherein
some of the consolidated cases are
decided without trial but according to the
result of the one selected (Riguera, 2013).

119

120
Section 1. Consolidation.
The curt may order a joint hearing or trial
of any or all matters in issue when
actions involving a common question of
law or fact are pending before the court.
Purpose of Consolidation
1. To avoid multiplicity of suits
2. Guard against oppression or abuse
3. Prevent delay
4. Clear congested dockets
5. Simplify the works of the trial court
and save unnecessary costs and
expense
Ways of Consolidating Cases:
1. By Recasting the cases already
instituted conducting only one
hearing and rendering only one
decision.
2. By Consolidating the existing cases
holding only one hearing and
rendering only one decision.
3. By Hearing only the principal case
(Test-Case Method) suspending the
hearing on the others until judgment
has been rendered in the principal
case.
Consolidation of cases on appeal and
assigned to different divisions of the
SC and the CA is also authorized.
Generally, the case which was appealed
later and bearing the higher docket
number is consolidated with the case
having the lower docket number.
Many authorities held that consolidation
may occur even if cases are pending
before different courts or tribunal. The
necessary thing is that actions involve the
common questions of law or fact
(Superlines Transportation v. Victor).
Section .2. Separate Trials.

Severance refers to separate trial of any


claim, cross-claim, counterclaim or third
party complaint, in furtherance of
convenience or in the interest of justice.
Section 9. Delegation of Reception of
Evidence.
General Rule: The judge shall personally
receive the evidence adduced by the
parties and resolve any objections to any
question or to the admission of exhibits.
Exception: The reception may be
delegated to the clerk of court. (DEW)
1. In default or ex parte hearings
2. In any case where the parties agree in
writing
Trial by Commissioners
Commissioner - the person to whom a
cause pending in court is referred, for him
to take testimony, hear the parties and
report thereon to the court, and upon
whose report, if confirmed, judgment is
rendered.
Two kinds under Rule 32
1. Reference by consent. Refer to Rule
32, Sec. 1.
2. Reference ordered on motion. Refer to
Rule 32, Sec. 2
REFERENCE TO COMMISSIONER BY
CONSENT
Reference of a case to a commissioner
must be by a written consent of both
parties.
The commissioner may be appointed by
the parties or by the court.
REFERENCE
BY
CONSENT
OR
ORDERED ON MOTION
Requisites by order of the court, a case
may be referred to a commissioner:
(WMPE)
1. By written consent of both parties

2. By motion of either party or on


court's initiative in the following
cases: (LAF)
a. When the trial of an issue of
fact requires the examination
of a long account on either
side;
b. When the taking of an account
is
necessary
for
the
information of the court before
judgment, or for carrying a
judgment or order into effect,
or;
c. When a question of fact, other
than pleadings arises upon
motion or otherwise, in any
stage of a case, or for carrying
a judgment or order into effect.
3. In expropriation cases for the
purpose of determining
just
compensation (Sec. 5 Rule 67)
4. In partition cases, where the
parties are unable to agree upon a
partition. (Sec. 3 Rule 69; Riguera,
2013).
Sec.3.Order of Reference.
Role of Clerk of Court is to furnish the
commissioner with a copy of the order of
reference.
Contents of order of reference:
1. Specify or limits the power.
2. Direct the commissioner to report
on particular issues, to do or
perform particular acts, to receive
or report evidence
3. Fix the date for beginning and
closing the hearings and filing of
report.
Powers of a Commissioner
Subject
to the
specifications and
limitations stated in the order, the
Commissioner shall have the following
powers:
1. To regulate the proceedings in
every hearing.

2. To do all acts and take all


measures necessary or proper for
the performance of duties.
3. Issue subpoenas and subpoena
duces tecum.
4. To swear witness.
5. To rule upon the admissibility of
evidence.
Failure of parties to appear before the
Commissioner. Refer to Rule 32, Sec.6)
The commissioner may proceed ex parte
or, in his discretion, adjourn the
proceedings to a future day, giving notice
to the absent party or to his counsel.
Section 7. Refusal of Witness to Obey
Subpoena.
The refusal of a witness to obey a
subpoena issued by the commissioner or
to give evidence before him shall be
deemed a contempt of the court which
appointed the commissioner. Such refusal
constitutes indirect contempt under Rule
71, Sec. 3 (Riguera, 2013).
Secs.9-11.Commissioners
Report;
Notice to Parties and Hearing Upon
The report must be in writing upon
matters submitted to him by order of
reference. If powers are not specified, he
shall set forth his findings of fact and
conclusions of law.
UPON FILING OF THE REPORT OF THE
COMMISSIONER:
1. The party shall be notified by the
clerk;
2. Be allowed 10 days within which to
object to the findings of the report.
Objections to the report based upon
grounds which were available during the
proceedings before the Commissioner
shall not be considered by the court,

121

122
UNLESS, they were made before the
commissioner.
The report shall be set for a hearing. The
court shall order adopting, modifying, or
rejecting the report in whole or in part, or
recommitting it with instructions, or
require parties to submit further evidence
before the commissioner or court.
STIPULATIONS AS TO FINDINGS
When the parties stipulate that the
commissioners findings of fact shall be
final, only questions of law shall
thereafter be considered.

RULE 32
TRIAL BY COMMISSIONER
When case may be referred by the
order of the court to a commissioner
a. By written consent of both parties
b. By motion of either party or on the
courts initiative in the following
cases:
1. When the trial of an issue
if
fact
requires
the
examination of a long
account on wither side;
2. When the taking of an
account is necessary for
the information of the
court before judgment, or
for carrying a judgment or
order into effect; or
3. When a question of fact,
other than upon pleadings,
arise upon motion or
otherwise, in any stage of a
case, or for carrying a
judgment or order into
effect.
c. In expropriation cases for the
purpose of determining
just
compemsation. (Sec. 5, Rule 67)

d. In partition cases, where the


parties are unable to agree upon a
partition. (Sec. 3, Rule 69)
Powers of the Commissioner
1. Regulate the proceedings in every
hearig before him and to do all
acts and take all measures
necessary and proper for the
efficient performance of his duties
under the order of reference;
2. Issue subpoenas and subpoenas
duces tecum;
3. Swear witnesses;
4. Unless otherwise provided in the
order of reference, he may rule
upon the admissibility of evidence.
If a witness refuse to obey a subpoena
issued by the commissioner or to give
evidence before him, the witness shall be
deemed in contempt if the court which
appointed the commissioner. (Sec. 7) The
commissioner has no power to cite the
witness in contempt. Such refusal
constitutes an indirect contempt. (Sec. 3)
Upon the completion of the trial or
hearing
or
proceeding
before
the
commissioner, the latter shall file within
the court his report in writing upon the
matters submitted to him by the order of
reference. He shall attached thereto all
exhibites, affidavots, depositions, papers
and the transcript, if any, of the
testimonial evidence presented before
him.

Thereafter, the court shall set the report


for hearing, after which the court shall
issue an order adopting, modifying or
rejecting the report in whole or in part, or
recommitting it with instructions or
requiring the parties present further
evidence before the commissioner or the
court. (Sec. 11). If the parties had
stipulated that the commissioners factual
findings shall be final, the court may only

consider questions of law arising from the


report. (Sec. 11)

RULE 33
DEMURRER TO EVIDENCE
Grounds:
1. Demurrer to evidence is a motion to
dismiss based on the ground of
insufficiency of evidence and is
presented after the plaintiff rests his
case
2. A motion to dismiss filed by the
defendant after the plaintiff has
completed the presentation of his
evidence on the ground that upon the
facts and the law, the plaintiff has
shown no right to relief (Riguera,
2013).
Nature: There is only a one-sided trial.
Example: It is only the plaintiff who has
presented evidence.
Purpose:
litigations.

To

discourage

prolonged

Effects of Denial:
1. Defendant shall have the right to
present evidence
2. The date for reception of defendants
evidence should be set
3. The order is interlocutory and
therefore not appealable but can be
subject of petition for certiorari in
case of grave abuse of discretion or
oppressive
exercise
of
judicial
authority.
Effects of Grant:
1. The case shall be dismissed
2. The appellate court should render
judgment
3. On appeal, if the order of dismissal is
reversed, the movant shall be deemed

to have waived his right to present


evidence.
This means the plaintiff already wins the
case since the appellate court should
render judgment for the plaintiff on the
basis of his evidence alone (Riguera,
2015).

Waiver of Right To Present Evidence


Occurs when the motion to dismiss on
the ground of demurrer to evidence has
been granted by the lower court but
reversed on appeal.
Movant is deemed to have waived his right
to present evidence. The decision of the
appellate court will be based only on
evidence of the plaintiff as the defendant
loses his right to have the case remanded
for reception of his evidence.
Q: After the prosecution had rested and
made its formal offer of evidence, with the
court admitting all of the prosecution
evidence, the accused filed a demurer to
evidence with leave of court. The
prosecution was allowed to comment
thereon. Thereafter, the court granted the
demurer, finding that the accused could
not have committed the offense charged.
If the prosecution files a motion for
reconsideration on the ground that the
court order granting the demurer was
not
in
accord
with
law
and
jurisprudence,
will
the
motion
prosper? (BAR 2009)
A:NO, the motion will not prosper. With
the granting of the demurrer, the case
shall be dismissed and the legal effect is
the acquittal of the accused. A judgment
of acquittal is immediately executor and
no appeal can be made therefrom.
Otherwise the Constitutional protection
against double jeopardy would be

123

124
violated.
Civil Cases
Criminal Cases
AS TO REQUIREMENT FOR
LEAVE OF COURT
Not required before May be filed with
filing a demurrer or without leave of
court
RIGHT TO APPEAL
1. If demurrer is
granted, the order of
dismissal is
appealable. Refer to
Rule 33, Sec.1.
2. If on appeal and
the order of dismissal
was reversed by the
appellate court, the
defendant loses his
right to present
evidence (Radiowealth
v Sps. Del Rosario, GR
No. 138739, 2000).

The
order
of
dismissal is not
appealable
because of the
constitutional
policy
against
double jeopardy.

determination by a court of the right of


the parties, upon matters submitted to it
in an action or proceeding.
Requisites for a Valid Judgment:
1. The court or tribunal must be clothed
with authority to hear and determine
the matter before it (Riano, 2015 citing
Acosta vs.COMELEC, 293 SCRA 578,
580).
The term "clothed with authority"
includes jurisdiction over the subject
matter of the case and over the person
of the defendant, or over the res, in an
action in personam or quasi in rem
(SPR). (Riguera, 2015).
2. Parties must have been given an
opportunity to adduce evidence in
their behalf (Riano, 2011 citing Acosta
vs. COMELEC, 293 SRA 578, 580).
Indispensible parties should
been impleaded. (Riguera, 2013)

EFFECTS OF DENIAL
If demurrer is denied, If denied:
the defendant may 1. With leave of
proceed to present his court,
accused
evidence. may present his
evidence.
2. Without leave of
court, accused can
no longer present
his evidence and
submits the case
for decision based
on
the
prosecutions
evidence.

JUDGMENTS AND FINAL ORDERS


Judgment the final consideration and

have

3. It should be in writing. A verbal


judgment is, in contemplation of law,
not in esse, therefore, ineffective
(Riano, 2014 citing Corpus vs.
Sandiganbayan, 442 SCRA 294, 309);
4. It must state clearly and distinctly
state the facts and the law on which it
is based, signed by the judge and filed
with the clerk of court; and
5. It should contain a dispositive part
(Riano 2014, citing Cu-Unjieng vs.
Mabalacat Sugar Co., 70 Phil. 384) and
should be signed by the judge and
filed with the clerk of court.
Note: Findings of fact Statement of
facts in judgment must be supported
by evidentiary facts. This rule,
however, does not require that the

court shall state in its decision all the


facts found in the records (Riano
2011, citing People vs. Derpo, 168
SCRA 447, 455).
TYPES OF JUDGMENTS:
1. Judgment by Default - It is a
judgment granting the claimant such
relief as his pleading may warrant
after the defending party fails to
answer within the time allowed
therefore, upon motion of the claiming
party, with notice to the defending
party, and proof of such failure to
answer. (Rule 9, Sec. 3)
2. Judgment on the Pleadings - It is a
judgment based solely on the relief
prayed for in the complaint without
plaintiff
adducing
any
evidence
(Riguera, 2014).
3. Summary Judgment - A judgment
rendered by a court without a fullblown trial, if the court finds that,
except as to the amount of damages,
there is no genuine issue as to any
material fact and the plaintiff or
defendant is entitled to a judgment as
a matter of law (Riguera 2015).
4. Several Judgment - A judgment
rendered by a court against one or
more defendants, but not against all,
leaving the action to proceed against
the others (Riano, 2014 citing Rule 36,
Sec. 4).
5. Separate Judgment - This kind of
judgment presupposes that there are
several claims for relief presented in a
single action. The court may render
separate judgment on one of the
several claims. The judgment will
terminate the action with respect to
that claim and the action shall
proceed as to the remaining claims.

The court may stay the execution of


the separate judgment until the
rendition of a judgment on all the
other claims (Riano, 2011 citing Rule
36, Sec. 5).
6. Judgment for Specific Acts - A
judgment which directs a party to
execute a conveyance of land or
personal property, or to deliver deeds
or other documents, or to perform any
other specific act. ( Rule 39, Sec. 10)

7. Special Judgments - One which


requires the performance of any act,
other than the payment of money or
the sale or delivery of real or personal
property, which a party must
personally do because his personal
qualifications and circumstances have
been
taken
into
consideration
(Riguera, 2013 citing Caluag vs.
Pecson, 82 Phil. 8; Rule 39, Sec.11).
8. Judgment
upon
a
Confession
(Cognovit Judgment) one entered
against a person upon his admission
or confession of liability without the
formality, time and expense involved
in an ordinary proceeding.
9. Judgment upon Compromise
judgment rendered with the consent
of the parties for the purpose of
effecting compromise or settlement of
an action.
General Rule: A lawyer cannot
compromise his clients litigation
without special authority.
Exception: If upon knowledge of such
compromise, the client failed to
repudiate the action of the lawyer.

125

126
Note:
Effect
of
Compromise
agreement entered into by a lawyer
without
special
authority
is
Unenforceable.
Effect of a judgment based upon
Compromise Agreement
a. The compromise agreement is not
appealable and it is immediately
executory
b. It cannot be annulled
Unless vitiated with error, deceit,
violence or forgery of documents
c. It constitutes res judicata
Judicial Compromise Substantive law
does not require a court approval for the
res judicata effect of a compromise
agreement to attach. However, there shall
be no execution of the compromise
agreement except in compliance with a
judicial compromise (Riano 2011, citing
Art. 2037, Civil Code).
10. Clarificatory Judgment - Where the
judgment is difficult to execute
because of ambiguity in its terms, it is
suggested that the remedy to avail of
is to have the court remove the
ambiguity by the filing of a motion for
a clarificatory judgment and not to
assail the judgment as void (Riano,
2014).
11. Nunc
Pro
Tunc
Judgment
(Judgment now for then) entry
made now of something which was
actually
previously
done;
One
rendered to record some judicial act
done at a former time but which was
not carried into record (Riguera 2013).
It cannot correct judicial errors,
however flagrant and glaring these
may
be
(Riguera
2013,
citing
Henderson v Tan, 87 Phil. 466), nor
can it construe what a judgment

means (Lichauco v Tan Po, 51 Phil.


862).
12. Sin Perjuicio Judgment one which
contains only the dispositive portion
of the decision and reserves the
making of findings of fact and
conclusions of law in a subsequent
judgment. They are prohibited. They
are judgments without statement of
facts in support of its conclusion
which is void for it violates Sec. 15,
Article VIII of the Constitution.
Thus, the party adversely affected
would be unable to file a motion for
reconsideration
or
appeal
the
judgment for he has to speculate on
the grounds upon which the judge
based his decision (Riguera 2013).
13. Conditional Judgment one which
is subject to the performance of a
condition precedent and is not final
until the condition is performed. Such
judgment is generally void because of
the absence of a disposition (Riano
2011, citing Cu-Unjieng v Mabalacat
Sugar Co., 70 Phil. 384)
14. Incomplete Judgment one which
leaves certain matters to be settled in
a subsequent proceedings.
Default
Judgment

Defendant
failed to file
an answer.

Judgment
upon the
Pleadings
Defendant
filed an
answer but
does not
contain any
defense.

Judgment upon

Judgment
upon
Confession
Defendant
will not file an
answer but
will tell the
court the he
is admitting
his liability.

Judgment upon

Compromise
1. The liability of
the defendant is
to be determined
in accordance
with the terms
of the agreement
of the parties

2. There is
mutual or
reciprocal
concessions

Confession
1. The defendant
confesses the
action and
consents to the
judgment that
the court may
render in
accordance with
the compromise
and the prayer.
2. It is unilateral.
It only comes
from the
defendant.

Dormant Judgment one that is not


enforced within 5 years.

Rendition of Judgment
The filing of the same with the clerk of
court,
not the
pronouncement
of
judgment in open court (Riano, 2011).
Even if the judgment has already been
put in writing and signed, it is still
subject to amendment if it has not yet
been filed with the clerk of court and
before its filing it does not yet constitute
the real judgment of the court (Riano,
2011 citing Ago v CA, 6 SCRA 530, 535).
JUDGMENT WITHOUT TRIAL
1. Default Judgment A binding
judgment in favor of either party on
some failure to take action by the
other party.
It is a judgment granting the claimant
such relief as his pleading may
warrant after the defending party fails
to answer within the time allowed,
upon motion of the claiming party,
with notice to the defending party and

proof of such failure to answer or


appear before the court of law. Refer
to Rule 9, Sec.3.
2. Summary
Judgment

A
determination made by a court
without a full trial.
Judgment may be issued as to the
merits of an entire case or specific
issues in that case.
3. Voluntary Dismissal The lawsuit is
terminated by voluntary request of the
plaintiff. Refer to Rule 17, Secs. 1-2.
CONTENTS OF JUDGMENT
1. The opinion of the court contains
the findings of facts and conclusion of
law
2. The
disposition
of
the
case
(Dispositive part) final and actual
disposition of the rights litigated
3. Signature of the judge(Herrera)
Conflict
between
the
Dispositive
Portion (fallo) and Body of the Decision
(ratio decidendi)
General Rule: The fallo controls. The fallo
is the final order while the opinion in the
body is merely a statement ordering
nothing.
Exception: The body or ratio decidnedi
will prevail while the inevitable conclusion
from the body of the decision is so clear
that there was a mere mistake in the
dispositive portion (Riano, 2014 citing So
v Food Fest Land Inc., 642 SCRA 492,
2011).

RULE 34
JUDGMENT ON THE PLEADINGS

127

128
Q: What is
pleadings?

judgment

on

the

A: It is a judgment based solely on the


relief prayed for in the complaint without
plaintiff adducing any evidence (Riguera,
2013).
Judgment on the pleadings is proper
when an answer fails to render an issue
or otherwise
admits the
material
allegation of the adverse partys pleading.
However, the trial court cannot direct a
judgment on the pleading in the absence
of a motion filed for the purpose by a
party litigant (De Luna v Abrigo, 181
SCRA 150).
Note: There must be a motion by a party.
Q: When may the court
judgment on the pleadings?

render

A:Grounds:
1. When answer fails to tender an issue
by reason on:
a. General
denial
of
material
allegations of the compliant
b. Insufficient denial of the material
allegations of the compliant
2. When answer admits the material
allegation of the adverse partys
pleading, the court may, on motion of
that party, direct judgment on such
pleading (Rule 31, Sec.1)
3. Under the Rules on Summary
Procedure, should the defendant fails
to answer the complaint within 10
days from service of summons.
4. Where the defendant is declared in
default, the court shall proceed to
render
judgment
granting
the
claimant such relief as his pleading
may warrant, unless the court in its
discretion requires the claimant to
submit evidence (Rule 9, Sec.3)

5. During Pre-trial, the court may render


a judgment on the pleadings if it finds
a valid ground (Rule 18, Sec. 2 [g]).
6. As a penalty for non-compliance or
refusal to answer in discovery
proceedings, the court may render
judgment by default against the
recalcitrant or disobedient party
(Riguera, 2015; Rule 29, Sec. 3&5).
WHEN NOT PROPER:
1. When the answer raises an issue.
2. In actions for annulment of marriage
or for legal separation or declaration
of nullity of marriage.
3. Issue is the amount of unliquidated
damages (Rule 8, Sec.11).
4. Only questions of law are being
alleged.
IMPLIED ADMISSION UNDER THIRD
MODE OF SPECIFIC DENIAL:
The third mode of specific denial may not
be availed of when the fact as to which
want of knowledge or information is
claimed is so plainly and necessarily
within the defendants knowledge that his
averment of ignorance must be palpably
untrue.
The defendant must aver positively or
state how it is that he is ignorant of the
fact alleged. Since there is an implied
admission of material averments of the
complaint, a judgment on the pleadings
may be rendered (Riguera, 2015 citing
Capital Motorts v. Yabut, 32 SCRA 1).
JUDGMENT ON THE PLEADINGS MAY
BE RENDERED ONLY UPON MOTION
General Rule:A court may direct
judgment on the pleadings only if there is
a motion to that effect (Riguera, 2013
citing Rule 34, Sec.1).

Exception:Trial court may render a


judgment on the pleadings if, after the
pre-trial, the facts warrant such judgment
(Regalado citing Taleon v Sec. of Public
Works & Communication, GR No.L-24281,
1967).
DEEMEDADMITTEDBYTHEMOVANT:
Onewhopraysforjudgmentonthepleadings
withoutofferingproofastothetruthofhisown
allegations,andwithoutgivingtheopposing
partyanopportunitytointroduceevidence,i
mpliedlyadmitsthetruthofallthematerialan
drelevantallegationsoftheopposingparty,a
ndtoresthismotionforjudgmentonthosealle
gationstakentogetherwithsuchofhis
ownareadmittedinthepleadings.
(Riguera,2013 citingSanchezvRigos, 45
SCRA 368).
The
plaintiff,
by
moving
for
judgmentonthepleadings,isnotdeemed
tohaveadmittedirrelevantallegationsinthe
defendant'sanswer
(Regalado,RemedialLawCompenium,Tenth
Edition,citingAranetavPerez, G R N o . L207878,1965),neitheristhedefendantdeemedtoh
aveadmittedallegationsofdamagesintheco
mplaint(Ibid.,citingAbubakarTanvTianHo,
GR No.L-18820,1962).
Hence,therecanbenoawardofdamagesinthe
absenceofproof(Ibid.,citingLichaucovs.Gua
sh,76Phil.,5).

RULE 35
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: It is a judgment rendered by a court
without a full-blown trial, if the court
finds that, except as to the amount of
damages, there is no genuine issue as to

any material fact and the plaintiff or


defendant is entitled to a judgment as a
matter of law.
REQUISITES OF A VALID SUMMARY
JUDGMENT:
1. Upon filing of a motion
2. After issues have been joined
3. The court finds that there is no
genuine issue as to any material fact
based on the pleadings, supporting
affidavits, depositions and admissions
on file,

4. The moving party is entitled to a


judgment as a matter of law.
Genuine Issue an issue of fact which
calls for the presentation of evidence as
distinguished from an issue which is
fictitious and contrived, set up in bad
faith and patently unsubstantial so as not
to constitute a genuine issue for trial.
Section 1: For The Claimant.
A party seeking a claim, counterclaim or
cross-claim or to obtain a declaratory
relief may, at any time after the pleading
in answer has been served, move with
supporting affidavits, depositions or
admissions for a summary judgment in
his favor upon all or any part thereof
(Riguera, 2013).
Section 2: For the Defendant.
A party against whom a claim,
counterclaim, cross-claim or is asserted
or a declaratory relief is sought may, at
any time, move with supporting affidavits,
depositions or admissions for a summary
judgment in his favor as to all or any part
thereof.
WHEN NOT PROPER:
1. Declaration of nullity of marriage

129

130
2. Annulment of marriage
3. Legal separation
Section 4: When The Case Not Fully
Adjudicated.
If judgment is not rendered upon the
whole case or for all the reliefs sought and
a trial is necessary, the court at the
hearing of the motion shall ascertain the
existence of materials facts without
substantial controversy including the
amount
of
damages
and
those
controverted in good faith. The trial shall
be conducted on the controverted facts
accordingly.
Partial Summary Judgment A
judgment not on the entire case but only
on the specified factual issues with the
court proceeding to try the other factual
issues.
Propriety of Summary Judgment may be
corrected only on appeal or other direct
review and not by certiorari.
Separate Appeal on Partial Summary
Judgment from Judgment in the Entire
Case
General Rule: A partial
judgment is not appealable.

summary

Exception: Unless allowed by the court


under Rule 41, Sec.1 (f).
The failure to appeal separately from a
partial summary judgment or to challenge
by special civil action for certiorari does
not make the same final and executor
(Riguera, 2013 citing Business Bank v
Chua, 2010).
Section 6. Affidavits and Attachments
IN BAD FAITH.
Should it appear that any of the affidavits
are presented in bad faith or solely for the

purpose of delay, the court shall order the


offending party or counsel to pay to the
other party the amount of reasonable
expenses and attorneys fees which the
filing of the affidavits caused him to incur.
Note: While the rules expressly mention
only supporting affidavits, depositions or
admissions, there is NO bar to
supporting the motion for summary
judgment with documents or exhibits.
Rule 35, Sec.5 provides that Certified
true copies of all papers or parts thereof
referred to in the affidavit shall be
attached thereto or served therewith
(Riguera, 2009). Hence, the court can go
outside of the pleadings in determining
whether or not a genuine issue exists.
SUMMARY
JUDGMENTS

JUDGMENT ON
THE PLEADINGS

Basis
Based solely on
Based on
pleadings without
pleadings and
introduction
of
depositions,
evidence.
admissions and
affidavits.
To whom Available
Available to both
parties

Available only to
the plaintiff, unless
the
defendant
presents
counterclaim.

Issues
There may be
issues involved in
the case but such
issues are
irrelevant.

The answer fails to


tender an issue or
there
is
an
admission
of
material
allegations.

When Proper
No genuine issue
of fat to be tried
except among of
damages (Rule

No issue of fact at
all.

35, Sec.3)

Period for Notice of Hearing


3 day notice
10 day notice

RULE 36
JUDGMENTS,FINAL ORDERS,
AND ENTRY THEREOF

JUDGMENT
The final determination by a court of the
rights of the parties in a case submitted
before it.
RENDITION OF JUDGMENT AND FINAL
ORDERS.
A judgment or final order determining the
merits of the case shall be:
1. In writing
2. Personally and directly prepared by
the judge
3. Stating clearly and distinctly the facts
and the law on which it is based
4. Signed by him
5. Filed with the clerk of court
PROMULGATION the process by which
a
decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or their
counsel.
RENDITION OF JUDGMENT filing of
the decision signed by the judge with the
clerk of court.
Q: What are the essential requisites of
a valid judgment?

A: The court rendering the judgment


must have jurisdiction over the subject
matter of the case and over the person of
the plaintiff and defendant, or over the
res, in an action in personam or quasi in
rem.
Q: What is a sin perjuicio judgment?
A: It is a judgment without a statement of
the facts in support of its conclusions.
Such a judgment is void for it violates
Section 14, Article viii of the Constitution.
Thus, the party adversely affected would
be unable to file a motion for
reconsideration or appeal the judgment
for he has to speculate on the grounds
upon which the judge based his decision.
Indispensable parties should have been
impleaded.
Section 2. Entry of Judgment and
Final Order.
The date of the finality of the judgment or
final order shall be deemed to be the date
of its entry.
The judgment or final order shall be
entered by the clerk in the book of entries
of judgments if no appeal or motion for
new trial or reconsideration is filed within
15 days.
Q: What is the Importance of the Date
of Entry?
A:
1. It is the starting point of the 6-month
period for filing a petition for relief
(Sec. 3 Rule 38),
2. The 5- year period for filing a motion
for execution (Sec. 6 Rule 39), and

131

132
3. The 10-year period for filing an action
for revival of judgment (Art. 1144 Civil
Code; Riguera 2015).
APPEAL ON SEPARATE OR SEVERAL
JUDGMENTS
Section 4. Several Judgment
Q: What is a several judgment?
A: It is a judgment rendered by a court in
an
action
against
several
defendantswhere the court renders
judgment against one or more of them,
leaving the action to proceed against the
others.
Q: What is a separate judgment?
A: It is a judgment rendered by a court in
an action wherein more than one claim
for reliefis presented and where the court
renders a separate judgment disposing of
a claim or some of them but allowing the
action to proceed against the remaining
claims.
General Rule: Appeal on either is not
allowed.
Exception: Unless allowed by the court
under Rule 41,Sec.1(g).
PARTIAL
SUMMARY
JUDGMENT
Governed
by
Section 4, Rule 35.
Presupposes that a
motion
for
summary judgment
has been filed.
Interlocutory order

SEPARATE
JUDGMENT
Governed
by
Section 5, Rule
36.
Not
applicable
to a summary
judgment.
Judgment
final order

or

Cannot
be
appealed until after
judgment in the
entire case has
been rendered.

As a rule not
appealable while
the main case is
pending, unless
the court allows
an
appeal
therefrom.
(Section 1(f) Rule
39)

WHERE AN APPEAL IS ALLOWED:


1. Shall be taken by filing a notice of
appeal
2. Record on appeal
3. Within 30 days from notice of the
order allowing the appeal
Refer to Rule 41, Sec.3 (Riguera,
2014).
Section 6. Judgment against Entity
Without Juridical Personality.
The judgment shall set out their
individual or proper names if known.
WHEN A JUDGMENT OR FINAL ORDER
BECOMES FINAL AND EXECUTORY
(RULE 39, SEC.1)
1. Upon the expiration if the period to
appeal
2. No appeal has been perfected
DOCTRINE OF IMMUTABILITY OF
JUDGMENTS
Sometimes referred to as conclusiveness
of judgments, preclusion of issues or
collateral estoppels (Riano, 2014).
General Rule: Once judgment becomes
final and executory, the judgment can no
longer be disturbed.
Exceptions:
1. Clerical errors or mistake
2. Nunc Pro Tunc entries which cause no
prejudice to any party
3. Void Judgments

Reasons:
1. To avoid delay in the administration of
justice
2. To put an end to judicial controversies
(Riano, 2014).
EFFECTS OF FINALITY OF JUDGMENT
1. The prevailing party is entitled to have
the judgment executed, as a matter of
right and the issuance of the
corresponding writ of execution
becomes a ministerial duty of the
court.
2. The court rendering the judgment
loses jurisdiction over the case so that
it can no longer correct the judgment
in substance, except clerical errors
and omissions due to inadvertence or
negligence.
3. Res judicata supervenes.
Post-Judgment Remedies
Remedies against Judgment or Final
Orders
A. Before Finality
1. Motion
for
New
Trial
Reconsideration (Rule 37)
2. Appeal

or

B. After Finality
1. Relief from judgment (Rule 38)
2. Annulment of judgment (Rule 47)
3. Special civil action for certiorari
(Rule 65)
The power to amend a judgment is
inherent to the court before judgment
becomes final and executor.
MEMORANDUM DECISION
A decision of appellate court which adopts
the true findings of fact and conclusion of
the trial court if it is affirming the latters
decision.This is allowed only in simple
cases.

I. BEFORE FINALITY
A. Motion
for
New
Reconsideration

Trial

or

New Trial the rehearing of case


already decided by the court but
before the judgment rendered
becomes final and executor,
whereby:
1. Errors of law or irregularities
are expunged from the record
2. New evidence is introduced
3. Bothe steps are taken.
When Required
A motion for reconsideration
condition precedent: (CLAN)

is

1. In
cases
for
legal
separation,
annulment, and declaration of nullity
2. In cases involving custody of minors
under the SC Rules on Cases
Involving Custody of Minors and
Habeas Corpus issued in relation
thereto (Riguera 2013).
When Prohibited
A motion for new trial or reconsideration
is prohibited: (SISE)
1. Under Rules on Summary Procedure
2. Cases governed by the Rules of
Procedure
on
Intra-Corporate
Disputes
3. Cases governed by Rules of Procedure
for Small Claims Cases
4. Ejectment Cases (Riguera 2013).

RULE 37
NEW TRIAL OR
RECONSIDERATION

133

134
Section 1. Grounds for New Trial.
(FAME-N)
1. Fraud,
Accident,
Mistake
or
Excusable
negligence,
which
ordinary prudence could not have
guarded against and by reason of
which the aggrieved party has
probably impaired in his rights.
FRAUD - As a ground for new trial, must
be extrinsic or collateral, that is, it is the
kind of fraud which prevented the
aggrieved party from having a trial or
presenting his case to the court, or was
used to procure the judgment without fair
submission of the controversy (Regalado).
TWO KINDS OF FRAUD
a.
Extrinsicfraud
is
thedeceptionortrickerybywhichtheagg
rievedpartywaspreventedfromhavingtri
alorpresentinghiscasebeforethecourt(
Riguera2013).
Example:
testifying.

Prevent

witness

from

b. Intrinsic Fraud refers to acts of a


party during the trial which does not
affect the presentation of the case.
Example: Presentation of a forged
promissory note.
ACCIDENT - An event that takes place
without ones foresight or expectation. It
is similar to the concept of fortuitous
event in civil law. (Riguera 2015)
Example: A party, after being hit with a
car, fails to attend the trial.
MISTAKE - refers to mistakes of fact or
law where, in good faith, the defendant
was misled in a case

Example: A party, relying upon a


compromise, fails to answer and was
declared in default.
EXCUSABLENEGLIGENCE
The
failuretotaketheproperstepsattheproperti
mewithoutcarelessness,inattention,orwillf
uldisregardoftheparty,whichdependsupon
circumstancesofthecase.
2. Newly Discovered Evidence (NDE),
which he could not, by reasonable
negligence, have discovered and
produced at trial, and which if
presented, would have probably
altered the result.
Requisites of NDE (The Berry Rule):
a. It is discovered after trial
b. It could not have been discovered
and produced at trial despite
exercise of reasonable diligence
c. It must be material and not merely
collateral
or
cumulative
or
corroborative,
or
purely
for
impeaching a witness
d. If presented, it could probably
alter the result of the action.
(Berry v State of Georgia, 1851).
Newly discovered evidence need not be
newly created evidence. It commonly refer
to evidence already in existence prior or
during trial but which could not have
been secured and presented during trial
despite reasonable diligence on the part of
the litigant (Tumang v CA, GR No.8234647, 1989).
Motion for New Trial on Appeal. (Rule
53, Sec.1)
Atany
timeaftertheappeal
fromthelowercourthasbeenperfectedandbe
foretheCourtofAppealslosesjurisdictionove
rthecase,apartymayfileamotionfornewtrial
onthegroundofnewlydiscoveredevidencew
hichcouldnothavebeendiscovered priorto

thetrialinthecourtbelowbytheexerciseofdu
ediligenceandwhichisofsuchcharacter
aswouldprobablychangetheresult(Riguera,
2013).

new trial without


retaking the same.

Motion for New Trial in SC


General Rule: In civil cases, a motion for
new trial may not be filed with the SC.
Such remedy is not provided under the
Rules of Court.
Exception:Exceptional circumstances, SC
may take cognizance of factual issues by
virtue of its plenary judicial power
(Riguera, 2013, citing Feria, 1997 Rules
of Civil Procedure 201, 1997).
Q: What are the grounds for motion for
reconsideration? (ICE)
A:
1. The damages awarded are excessive
2. The device is insufficient to justify the
decision or final order
3. The decision or final order is contrary
to law.
MOTION FOR NEW
TRIAL
Grounds: FAME and
NDE
Second motion for
new trial may be
allowed.
If
new
trial
is
granted, the court
will set aside the
judgment or final
order.
Recorded evidence
taken
upon
the
former
trial,
if
material
and
competent
to
establish the issues,
shall be used at the

MOTION FOR
RECONSIDERATION
Grounds: ICE
Second
prohibited.

MR

is

If the court finds that


excessive damages have
been awarded or that
the judgment or final
order is contrary to the
evidence or law, it may
amend such judgment
or
final
order
accordingly.

When to File
Motion for new trial or reconsideration
must be filed within 15 days from notice
of judgment and resolved by the court
within 30 days from submission for
resolution.
Section 2. Contents of Motion for New
Trial (WAS)
1. The motion shall be in writing
2. State the grounds: (FAME-N)
3. A motion based on:
a. FAME shall be supported by an
Affidavit of Merits
b. NDE shall be supported by:
i.
Affidavits of the Witnesses by
whom
such
evidence
is
expected to be given,
ii.
Duly authenticated documents
which are proposed to be
introduced
in
evidence
(Riguera,Primer-Reviewer
on
Remedial Law, 2015).
Affidavit of Merits: (FEN)
1. Nature and character of FAME on
which it is based
2. Facts constituting the movants good
and substantial cause of action or
defense
3. Evidence he intends to present if the
motion is granted, which evidence
must be such as to warrant a
reasonable belief that the result of the
case would probably be different, if
new trial were conducted (Riguera,
2013).
Section 2. Contents of a Motion for
Reconsideration
1. Specifically point out the findings or
conclusions of the judgment which
are unsupported by evidence or
contrary to law

135

136
2. With express reference to the
testimonial or documentary evidence
or provisions of law alleged to be
contrary to such findings.

REMEDY WHEN THE MOTION IS


DENIED, FRESH 15-DAY PERIOD RULE
The remedy is appeal from the judgment
or final order.

Pro forma Motion A motion without


affidavit of merits. It is considered as a
mere scrap of paper. This motion shall not
toll the period for appeal.

Neypes Rule or Fresh Period Rule


The aggrieved party has a fresh period
of 15 days from the denial of motion for
reconsideration or new trial within which
to file his appeal. This applies to Rules
40, 41, 42, 43 and 45 (Neypes v CA, GR
No. 141524, 2005).

Section 4. Resolution of Motion


A motion for new trial or reconsideration
must be resolved within 30 days from the
time it is submitted for resolution.
Section 5.Second Motion for New Trial.
Second motion for new trial must be
based on a ground not existing or
available when the first motion was made,
which may be filed during the remainder
of the 15-day period.
Note:
No
second
reconsideration allowed.

motion

for

Section 6. Grant of Motion; Effect.


1. Motion for New Trial
1. FAME there will be trial de novo
2. NDE:
a. No trial de novo
b. Evidence admitted based on
same decision will remain
c. Case will be opened only for the
purpose of admitting the new
evidence
2.Motion for Reconsideration
1. No trial de novo
2. Court will amend its judgment
Section 7. Motion for Partial New Trial
or Partial Reconsideration.
Party is questioning only one aspect or
portion of the case; therefore, the rest can
become final while the disputed portion
does not become final.

Fresh period rule is a period within


which to appeal from the judgment itself.
It is because an order denying a motion
for reconsideration is not appealable
(Riano, p. 433).

FRESH PERIOD RULE


Q:Petitioner filed a complaint in DARABPARAD for ejectment with damages
against respondent. DARAB rendered a
decision in favor of the petitioner. San
Miguel filed a petition for certiorari
arguing that the DARAB Rules of
Procedure adopted the fresh period rule
of 15 days within to file a notice of appeal.
Which is the correct rule in filling a
notice of appeal?
A: The SC ruled that All cases pending
with the Board of Adjudicators, prior to
the effectivity of 2009 DARAB Rules of
Procedure shall be governed by the
prevailing rule at the time of their filing.
The old rule shall not be less than 5 days
in any event, reckoned from the receipt of
the notice of denial and a fresh 15 days
period under the new rule. [Milagrosa
Jocson vs. Nelson San Miguel, Mar. 9,
2016]
Purposes:

1. To standardize the appeal periods


provided in the rules
2. To afford litigants fair opportunity to
appeal their cases.
When Applicable
The fresh period of 15 days becomes
significant only when a party opts to file a
motion for new trial or reconsideration
(Riano, Civil Procedure, 2007 Edition, p.
358).
Retroactive Effect
The "fresh period" rule has a retroactive
application to cases pending and
undetermined upon its effectivity.
General Rule: The procedural laws may
be given retroactive effect to actions
pending and undetermined at the time of
their passage, there being no vested
rights in the rules of procedure.
Note: Amendments to procedural rules
are procedural or remedial in character as
they do not create new or remove vested
rights, but only operate in furtherance of
the remedy or confirmation of rights
already existing (Riano 2011).

Motion for Extension of Time to File


Motion for New Trial or
Reconsideration
May be filed only in connection with the
cases pending before the Supreme Court.
No such motion may be filed before any
lower
court
(Riguera
2013,
citing
Fernandez v CA, 2005).
Appeals In General
APPEAL
A proceeding by which a party seeks from
a higher court the review of a judgment or

final order of a lower court on the ground


that the judgment or final order is against
the evidence or the law (Riguera 2015).
The right to appeal is neither a natural
right nor a part of due process; it is
merely a statutory privilege, and may be
exercised only in the manner and in
accordance with the provisions of law.
WHERE MULTIPLE
ALLOWED

APPEALS

ARE

1.Special proceedings
2.Actions for recovery of property with
accounting
3.Actions for partition of property with
accounting
4.Special civil actions of eminent domain
5.Foreclosure of mortgage
6.Judgment for or against one or more
several defendants, leaving the action to
proceed against the others when allowed
by the court.
Multiple appeals are allowed in one case
to enable the rest of the case to proceed
in the event that a separate and distinct
issue is resolved by the court and held to
be final.
In criminal cases in which the penalty
imposed is death or life imprisonment,
the appeal to the Supreme Court is by
ordinary appeal on both questions of fact
and law.
However, in People v. Mateo (G.R. Nos.
147678-87, July 7, 2004 and A.M. 04-905-SC, Sept. 14, 2004), such cases shall
be appealed to the CA for intermediate
review.
Under the Memorandum issued by the
Supreme Court, the Regional Trial Court
has jurisdiction over intra-corporate

137

138
disputed
and
corporation.

rehabilitation

of

Material Data Rule; Effect of Absence


Therecordonappealshouldcontaindataasw
illshowthattheappealwasperfectedontime.
Note:

Failureoftherecord

onappealtoshowonitsfacethattheappealwa
sperfected

within

theperiodfixedbytherulesisagroundfordis
missal(Riverav.CA,GRNo.141863,405SCR
A63).
Judgments and Final Orders Subject To
Appeal
SubjectofAppeal(AsamendedbyA.M.No.
07-7-12-SCDecember4,2007; Sec.1)
Anappealmaybetakenfromajudgmentorfin
alorderthatcompletelydisposesofthecase,o
rof
aparticularmatterthereinwhendeclaredbyt
heseRulestobeappealable.
MATTERS NOT APPEALABLE
General
Onlyafinaldecisionisappealable.
Judgment Rule)

Rule:
(Final

Exception:
Interlocutoryordersarenotappealable.
Ifappealsareallowedfrominterlocutoryorder
s,itwillresultinaverylengthytrialproceeding
sandexcessiveunwantedappellateproceedi
ngs.
REMEDY AGAINST JUDGMENTS AND
ORDERS
WHICH
ARE
NOT
APPEALABLE

A party may file a Special Civil Action for


Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or Mandamus if there is no
performance of duty
MODES OF APPEAL
1. Ordinary Appeal The appeal to the CA
in cases decided by the RTC in the
exercise of its original jurisdiction shall be
taken by filing a notice of appeal with the
court which rendered the judgment or
final order appealed from and serving a
copy thereof upon the adverse party.
2. Petition for Review The appeal to the
CA in cases decided by the RTC in the
exercise of its appellate jurisdiction shall
be by petition for review in accordance
with Rule 42.
3. Appeal by Certiorari - cases where only
questions of law are raised or involved,
the appeal shall be to the SC by petition
for review on certiorari in accordance with
Rule 45 (Rule 41, Sec. 2).
ORDINARY
APPEAL

PETITION
FOR
REVIEW

PETITION FOR
REVIEW ON
CERTIORARI

Jurisdiction of the Lower Court


Decided by Decided by Decided
by
the RTC in the RTC in RTC, CA, CTA
its Original its
and
jurisdiction Appellate
Sandiganbayan.
.
jurisdiction
.
Appeal to SC.
Appeal
to
CA.
Petition for
Review with
CA.
How to Appeal
1. Notice of 1. A verified 1. A verified
Appeal
or Petition for Petition
for
Record on Review with Review
on
Appeal with CA
Certiorari with

Court
Origin.

of

2. Notice to
Adverse
party.

SC
2.
Pay
docket and
lawful fees,
and 500 as
deposit for
costs with
CA.

2. Pay docket
and lawful fees,
and
500
as
deposit
for
costs

3. Submit proof
3. Furnish of service of
RTC
and copy to lower
Adverse
court
and
party
a adverse party.
copy.
When to Appeal
1. Notice of Within 15 Within 15 days
Appeal
- days from:
from:
within
15
days from a. Notice of a.
Notice
of
notice
of the
judgment
or
judgment
decision to order
be reviewed
2. Records
b. Denial of MR
on Appeal b. Denial of or New trial.
within
30 the MR or
days.
New Trial.

Issues to Be Raised On Appeal


General Rule: Only questions of law or
fact that has been raised in the lower
court and must be within the issues
framed by the parties can be raised on
appeal.
Exceptions:
1. Those assigned as errors
2. Those closely related to or dependent
on an assigned error
3. Those which affect subject matter
jurisdiction of the court or the validity
of the judgment
4. Plain and clerical errors (Riguera
2015).
To Whom Binding

General Rule: The reversal of a judgment


on appeal is binding only to the parties in
the appealed case and does not affect
those who are not parties to the appeal.
Exception: In cases where the rights of
the parties are interwoven and dependent
on each other and cannot be separated.
Period of Appeal
Appeals

Period of
Appeals
Within 15 days
after notice

Notice
Appeal

of

Record
Appeal

on

Within 30 days
after notice

Appeal
in
Habeas
Corpus case
Petition
for
Review to the
CTA

Within 48 hours
from notice
Within 30 days
from notice or
after lapse of
period for action
by the CIR

RULE 38
Relief From Judgments, Orders
And Other Proceedings
A petition for relief is an equitable
remedy and is allowed only in exceptional
cases from final judgments or orders
where no other remedy is available
(Regalado, 10th Ed., citing Palmores v
Jimenez, 90 Phil. 773).
It will not be entertained if the proper
remedy is appeal or certiorari (Ibid., citing
Fajardo v Bayona, 98 Phil. 659).

139

140
Kinds of Relief from Judgments,
Orders and other Proceedings
1. Relief from judgment, order or other
proceedings.
2. Relief from denial of appeal.
GROUNDS
FOR
AVAILING
THE
REMEDY
Judgment or final order entered against a
party through: (FAME)
1. Fraud,
2. Accident,
3. Mistake, or
4. Excusable negligence and no other
remedy is available.
Similar to a Motion for New Trial
Petition for Relief under Sec.1 is similar to
a motion for new trial on the ground of
FAME.
The difference being that the motion for
new trial under Rule 37 is filed before the
judgment becomes final, while a petition
for relief in this section presupposes a
final judgment or order (Riguera 2013).
Section 2: Petition for Relief from
Denial of Appeal.
Grounds:
Judgment or final order is rendered by
any court in a case, and a party thereto,
by FAME, has been prevented from taking
an appeal.
Party who has filed a timely motion for
new trial cannot file a petition for relief
after the former is denied. The two
remedies are exclusive of one another.

Section 3: Time to File


Contents and Verification.

Petition,

Formal requirements of the petition:

1. The petition must be verified.


2. It must be accompanied by a
certificate against forum shopping,
since it is an initiatory pleading
ascertaining a claim for relief.
3. It must be accompanied by
affidavits showing the fraud,
mistake or excusable negligence
relied upon, and the facts
constituting the petitioners good
and substantial cause of action or
defense, as the case may be.
Petition for relief from judgment must
be:
1. Filed within 60 days after the
petitioner learns of judgment and
2. Not more than 6 months after entry of
judgment.
The two periods for the filing of a petition
for relief are not extendible and never
interrupted (Regalado, 10th Ed., citing
Quijano v Tameta, GR No.L- 16472, 1961).
Thus, a petition for certiorari does not
suspend the periods prescribed by this
section (Ibid., citing Palomares v Jimenez,
90 Phil. 773), and neither does a motion
for reconsideration of the order subject of
the petition for relief (Ibid., citing Cruz v
Oppen, GR No.L-23861, 1968), especially
if filed in the wrong court.
These periods cannot be subject to a
condition or a contingency as they are
devised to meet a condition or a
contingency
(Ibid.,
citing Vda.
de
Salvatierra v Garlitos, 103 Phil. 157). Both
periods must be complied with (Ibid.,
citing Philippine Rabbit Bus Lines v
Arciaga, GR No.L-29701, 1987).
Notes:
1. The 6-month period is computed
from the date of entry of the order
or judgment.

2. However, as amended, the date of


the finality of the judgment or
final order is deemed to be the
date of its entry (Regalado, 10th
Ed., citing Dirige vBiranya, GR
No.L-22033, 1966).
Remedy When Petition for Relief under
Rule 38 is No Longer Available
An action to annul judgment under Rule
47 may be availed of when there is valid
ground to invoke the same (Riguera
2015).
Note: Petition for relief under Rule 38 is
not available against a judgment of the
CA. Any court in Sec. 1 only refers to
any trial courts (Riguera 2013, citing Sps.
Mesina v Meer, 2001).
Remedy When Party is Denied of
Appeal
Where a party has been prevented from
taking an appeal by reason of FAME, he
may file a verified petition for relief in
such court and in the same case praying
that the appeal be given due course.
Eample. Defendants counsel became
seriously ill, unable to file notice of appeal
on time. (Riguera 2013)
Section 4: Order to file an Answer.
The court shall issue an order, if the
petition is sufficient in form and
substance to justify relief, requiring the
adverse party to file an answer within 15
days from the receipt thereof.
Note: Failure to file an answer does not
warrant declaration of default.
Section 5: Preliminary Injunction
Pending Proceedings.
Execution
of
judgments
is
not
automatically stayed by filing a petition
for relief from judgment.

To stay execution, a writ of preliminary


injunction should be obtained in
accordance with Sec. 5, Rule 38, upon
filing of bond in favor to the adverse party.
Preliminary Injunction does not discharge
the levy made before the filing of Petition
for Relief thereafter, if the petition is
denied, the court has the power to
reinstate the writ of execution (Regalado,
10th Ed., citing Ayson v Ayson, 101 Phil.
1223 [Unrep.]).
Unless a writ of preliminary injunction
has been issued, execution of the
judgment shall proceed even if the order
denying the petition for relief is pending
on appeal. Said writ may be sought either
in the trial or appellate courts (Regalado,
10th Ed., citing Servicewide Specialists,
Inc. v Sheriff of Manila, G.R. No. 74586,
1986.)
Notes:
1. Uniform Procedure for Relief from
Judgments of MTC and RTC. After
petition is filed, the court shall
order adverse parties to answer
within 15 days from receipt. After
answer is filed or expiration of
period therefor, court shall hear
the petition.
2. If granted, judgment or final order
is set aside and the court shall
proceed as if timely motion for new
trial has been granted; if granted
against denial of appeal, court
shall give due course to appeal.

RULE 39
EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS.
EXECUTION

141

142
The remedy provided by law for the
enforcement of a judgment. It also refers
to the process of enforcing the judgment.

As to how it is enforced
1. Execution by Motion
2. Execution by Independent Action

Once a decision becomes final and


executory, the only jurisdiction left with
the court is to order its execution.

Execution with respect to appealed


cases
1. There is no need to await remand of
records
2. Execution
with
respect
to
consequential and exemplary damages
should be postponed until such time
as the merits of the case have been
finally determined in the regular
appeal, as the amounts remain
uncertain and indefinite pending
resolution.
3. Motion for execution of final and
executory judgment should be served
on adverse party and set for hearing.
4. In case of appeal, motion is filed with
court of origin supported by certified
true copies of final judgment of
appellate court.
5. Appellate court may upon motion,
order the court of origin to issue writ
of execution (SC Circular No. 24-94,
April 18, 1994).

The prevailing party is entitled to a writ of


execution and its issuance is a ministerial
duty of the court.
WRIT OF EXECUTION
A judicial writ issued to an officer
authorizing and requiring him to execute
the judgment of the court
General rule: Execution can be issued
only against a party and not against one
who did not have his day in court.
Exceptions: A writ is issued against nonparties.
1. One who is a privy to the judgment
debtor;
2. One not being originally a party to the
case submits his interest to the court
for consideration;
3. Where non-parties voluntarily signed
the
compromise
agreement
or
voluntarily appeared before the court.
4. Where third party derived his right of
possession from the defendant.
Where to file Motion for Execution
1. Trial Court while it has jurisdiction
over the case and the court is still in
possession of the records of the case
2. Appellate Court after the trial court
has already lost jurisdiction
Classes of Execution As to their nature
1. Compulsory execution Execution
as Matter of Right.
2. Discretionary Execution Execution
Pending Appeal.

FINALITY OF JUDGMENT
FOR PURPOSES
OF APPEAL

FOR PURPOSES
OF EXECUTION

A judgment which
completely
disposes of the
action
(as
distinguished from
an
interlocutory
order)

A
judgment
is
final
after
the
lapse of the period
to appeal and no
appeal has been
perfected
(Regalado).
Judgment in this
sense
is
more
precisely referred
to as final and
executory
in
order
to
avoid
confusion
with
final judgment in

FINAL
JUDGMENT
Disposes of the
action

the first sense


(Riguera 2013).
INTERLOCUTOR
Y ORDER
Something
between
the
commencement
and end of the
suit
which
declares
somepoint
or
matter but is not a
final decision of
the
whole
controversy.

CONCEPTOFEXECUTION
ISINAPPLICABLE
When
the
judgmentdoesnotorderthedoingofsomethi
ngorthepaymentofmoneybecausethereisno
thinginthejudgmenttobeenforcedorexecute
d.Insuchcases,iftheappealperiodhaslapse
d,the
judgmentbecomesfinalandunappealable,
notfinal and executory(Riguera2013)
MITTIMUS
F inal
processforcarryingintoeffectsthedecisionof
theappellatecourtaftertheentryofjudgment
andthetransmittalthereofwiththerecordsto
thecourtoforiginandispredicateduponthefi
nalityofjudgment.

PARTIALEXECUTION
Permissibleifjudgmentisdivisible.

Unless court provides otherwise:


1. Actions for (SIRA) support, injunction,
receivership, accounting, and other
judgments declared to be immediately
final and executor
2. Deficiency Judgment
3. Ejectment (governed by Rules on
Summary Procedure)
4. Expropriation
5. Cases
falling
under
Rules
of
Procedure on Corporate Rehabilitation
6. Cases
falling
under
Rules
of
Procedure
on
Intra-Corporate
Controversies
7. Contempt (indirect)
8. Cases
falling
under
Rules
of
Procedure for Environmental Cases
9. Those governed by Rules on Summary
Procedure on appeal (Sec. 21, RSP;
decisions of RTC on appeal shall be
immediately final and executory)
(Riguera, 2015).
Period for Execution
1. A final and executory judgment or
final order may be executed on motion
within 5 years from entry.
2. It may be revived and enforced by way
of independent action for revival of
judgment -after the lapse of 5 years
but before 10 years from its entry,
a. Revived judgment may be enforced
by motion within 5 years from
entry and thereafter
b. By action before barred by statute
of limitations file motion within
10 years from the finality of the
revived judgment.
JUDGMENTS

Example:Executionofthejudgmentorderin
greinstatementwhilemotionforreconsidera
tionontheawardofdamagesispending.

IMMEDIATELY EXECUTORY, NOT STAYED


BY APPEAL

Section 4. Judgments immediately


executory and shall not be stayed on
appeal.

May be appealed, but the appeal does not


stay the execution of the judgment or final
order

IMMED

May not b

143

144

JUDGMENTS
IMMEDIATELY
EXECUTORY
Judgments or final orders from the
following are immediately final and
executory and may no longer be appealed:
1. Summary Judicial Proceedings under
the Family Code (Art. 247, FC)
2. Rules of Procedure for Small Claims
Cases (Sec. 23, A.M. No. 08-8-7-SC,1
October 2008.)
3. Contempt (direct)
4. Compromise
judgments
(Riguera,
2015).
ISSUANCE OF EXECUTION
Execution As A Matter Of Right
The rule on when judgments or orders
may be executed as a matter of right. This
happens when the judgment becomes
executory. It becomes mandatory or
ministerial duty of the court to issue a
writ of execution to enforce the judgment
(Regalado, 10th Ed., citing Far Eastern
Surety v Vda. de Hernandez, GR No.L30359, Oct. 16, 1975).
Execution shall issue as a matter of
right:
1. On motion, upon judgment or order
that disposes of the action or
2. Proceeding upon the expiration of the
period to appeal therefrom, if no
appeal has been duly perfected;
3. If appeal has been duly perfected and
finally resolved, the execution may be
applied in the court of origin, on
motion of the judgment oblige,
submitting:
a. Certified true copies of the
judgment/s or final order/s
sought to be enforced and of the
entry, with
b. Notice to the adverse party.

4. The appellate court may, on motion in


the same case when the interest of
justice so requires, direct the court of
origin to issue the write of execution.
AUTHORITY OF THE COURT TO
SUSPEND EXECUTION OF A FINAL
JUDGMENT
A stay of execution may be issued for good
and valid reasons:
1. When
subsequent
circumstances
transpired which render execution
unjust or impossible as a supervening
cause;
2. On equitable grounds as when there
has been a change in the situation of
the parties;
3. In cases of special and exceptional
nature, where it becomes imperative
in the higher interest of justice.
General Rule: Where the judgment or
order has become executory, the court
cannot refuse to issue a writ of execution.
Exceptions:
1. When the subsequent facts and
circumstances transpire which render
such execution unjust or impossible;
2. On equitable grounds, as when there
has been a change in the situation of
the parties which makes the execution
inequitable (Albar v Carandang, GR
No.L-18003, 1962);
3. Where the judgment has been novated
by
the
parties
(Dormitorio
v
Fernandez, et al., GR No.L- 25889,
1976);
4. When a petition for relief or an action
to enjoin the judgment is filed and a
preliminary injunction is prayed for
and granted. Refer to Rule 38, Sec. 5;
5. When the judgment has become
dormant, the 5-year period under Sec.
6 of this Rule having expired without
the judgment having been revived

(Cunanan v CA, et al., GR No.L-25511,


1968); or
6. Where the judgment turns out to be
incomplete (Del Rosario v Villegas, 49
Phil. 634) or is conditional (Cu
Unjieng, etc. v Mabalacat Sugar Co.,
70 Phil. 380) since, as a matter of law,
such judgment cannot become final
(Regalado).
MANDAMUS
The proper remedy when a motion for
execution (as a matter of right) is denied.
However, if the appellate court reversed
the decision of the lower and the latter
denies the motion for execution for the
same, the judgment obligee may file with
the appellate court a motion to direct the
lower court to issue the writ of execution.
Mandamus is not proper since there is a
plain, adequate, and speedy remedy
under Sec. 1 Rule 39 (Riguera 2013, citing
Jose Feria, 1997 Rules of Civil Procedure
115 [1997]).
A Hearing Supplementary to Execution
is Not Necessary
Once a decision has become final and
executory, the only jurisdiction of the
court is to order its execution.
To allow supplemental hearing would be
to amend or alter a final and executory
judgment (Riguera 2013, citing Baclayon v
CA).
Cases Where Execution May be Issued
even if Judgment is NOT Final
1. Support pendente lite;
2. Ejectment cases;
3. Decision of the RTC in appealed
civil cases under the Rev. Rules on
Summary Procedure;
4. Decision of the Labor Arbiter
reinstating a dismissed employee.
Sec.1, Rule 39
FINAL AND

Sec.2, Rule 39
DISCRETIONAR

EXECUTORY
This is the rule
when judgment
or orders may be
executed as a
matter of right,
that
is,
it
becomes
the
mandatory
or
ministerial duty
of the court to
issue a writ of
execution.

Y EXECUTION
Execution
may
issue
in
the
discretion of the
court even before
the lapse of the
period, that is,
even before the
judgment
or
order has become
executory
(Regalado).

This
happens
when
the
judgment
becomes
executor.
Section 2: Discretionary Execution
It is the execution of a judgment or final
order by the court in its discretion during
the pendency of an appeal.
Requisites:
1. There must be a motion filed by the
prevailing party with a notice to the
adverse party;
2. There must be a hearing of the motion
for discretionary execution;
3. There must be good reasons to justify
the discretionary execution; and
4. The good reasons must be stated in a
special order.
5.
Discretionary execution may be issued
by:
1. Trial court even after the perfection
of the appeal for so long as the motion
for execution was filed while the TC
has jurisdiction over the case and is
in possession of the records, upon
motion of the prevailing party with
notice to the adverse party
2. Appellate court
after the TC has
lost jurisdiction

145

146

By notice of appeal, the court loses


jurisdiction over the case:
1. Upon perfection of the appeals filed in
due time and
2. Expiration of the time to appeal of the
other parties.
Section 3. Stay of Discretionary
Execution.
1. Upon approval by proper court;
2. Filing of supersedeas bond by the
party against whom it is directed;
3. Condition upon the performance of
the judgment or order allowed to be
executed in case it shall be finally
sustained.
When the judgment executed pending
appeal and subsequently overturned, the
party who moved for immediate execution
should, upon return of the case to the
trial court, be required to make specific
restitution.
EXECUTION OF JUDGMENT
Section 6: Execution by Motion or By
Independent Action.
1. Execution by motion The prevailing
party shall ask the court to issue a
writ of execution by simply filing a
motion in the same case within 5
years from the date of its entry.
After the lapse of such time, and
before it is barred by the statute of
limitations, a judgment may be
enforced by action.
2. Execution by independent action
The prevailing party should file an
action for revival of judgment after 5
years but within 10 years from the
date of its entry. (Art. 1144[3], Civil
Code).

When the judgment has been revived,


the prevailing party can then enforce
it by motion within 5 years from the
date of entry of the revived judgment.
Remedy: File another civil action for the
revival of judgment (Execution by
Independent Action) which must be filed
before it is barred by the Statute of
limitations.
Venue of
Judgment

Action

for

Revival

of

Qualify whether the action for revival of


judgment is a real or personal action.
1. If the action affects title to or
possession of real property or any
interest therein, the action for revival
must be filed with the court having
jurisdiction over the place where the
real property or any portion thereof is
situated.
2. If the action for revival of judgment is
a personal action, the venue lies with
the residence of either the plaintiff or
defendant, at the option of the
plaintiff (Riguera 2013, citing Infante v
Aran Builders, Inc., G.R. No.156596,
2007).
Notes:
1. Not
Applicable
in
Land
Registration and Cadastral Cases.
2. The 5 to 10 periods do not apply
to special proceedings, such as
land registration and cadastral
cases where the right to apply for
a
writ
of
possession
is
imprescriptible (Riguera 2013,
citing Rodil v Benedicto, 95 SCRA
137 [1980]). This is so because a
party in a civil action must
promptly enforce a judgment that
is secured against the adverse
party, and his failure to act to

enforce the same makes it


unenforceable.
3. In
special
proceedings,
the
purpose is to establish a status,
right or a particular fact;
4. In land registration proceedings,
the ownership by a person of a
parcel of land is sought to be
established (Ibid., citing Ting v
Heirs of Lirio, G.R. No. 168913,
2007).
Section 7: Execution in case of Death
of Party.
Effect of Death of Party:
1. Death
of
judgment
obligee

application of his executor or


administrator or successor-in- interest
2. Death of judgment obligor Against
his executor, etc. if the judgment be
for recovery of real or personal
property or the enforcement of a lien
thereon.
a. If death after execution is actually
levied upon his property, it may be
sold for satisfaction of the
obligation.
b. If the judgment obligor dies after
the
entry
but
before
levy,
execution will issue if it were for
the recovery of real or personal
property.
c. If judgment is for a sum of money,
and the judgment obligor dies
before levy, such judgment cannot
be enforced by writ of execution
but must be filed as a claim
against his estate.
Section 8: Issuance and Contents of a
Writ of Execution
1. Shall issue in the name of the
Republic of the Philippines from
court which granted the motion;
2. State the name of the court, case
number and title, and the

dispositive portion of the judgment


order;
3. Require the sheriff or other proper
officer to whom it is directed to
enforce the writ according to its
terms.
Manner of executing writ:
1. If judgment is against property of the
judgment obligor Out of real or
personal property with interest.
2. If against his real or personal property
in the hands of the personal
representatives,
heirs,
devisees,
legatees, tenants, or trustees of the
judgment obligor Out of that
property, with interest.
3. If for sale of real or personal property
To sell property, describing it and
apply the proceeds in conformity with
judgment.
4. If for delivery of possession of property
Deliver possession of the same to
the party entitled to it, describing it,
and to satisfy any costs, damages,
rents, or profits covered by the
judgment out of the personal property
of the person against whom it was
rendered, and out of real property if
sufficient personal property cannot be
found.
5. In all cases writ of execution shall
specifically state the amount of the
interest, costs, damages, rents, or
profits due as of date of issuance of
writ, aside from principal obligation.
Note: Judgment obligor is given
option to choose which property may
be levied on sufficient to satisfy the
judgment.
GROUNDS TO QUASH A WRIT
EXECUTION:
1. Improperly issued
2. Defective in substance
3. Issued against the wrong party

OF

147

148
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties
renders execution inequitable
7. Controversy
was
never
validly
submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against
property exempt from execution
10. Ambiguity in the terms of the
judgment
APPEAL - the proper remedy from an
order denying the issuance of a writ of
execution.
However, an order granting the issuance
of a writ of execution of a final judgment
is not appealable (Regalado, 10th Ed.,
citing several cases).
Section 9: Execution of Judgments for
Money
How is Execution
Money Enforced.

of

Judgment

of

1. Immediate payment on demand


a. The sheriff must demand payment
from the obligor of the full amount
stated in the writ of execution and
other lawful fees.
b. The judgment obligor can pay in:
i. cash,
ii. certified bank check payable to
the judgment obligee or
iii. any other form of payment
acceptable to the latter.
2. The payment shall be made directly to
the judgment obligee or authorized
representative.
If the obligee or representative is not
present to receive payment, the judgment
obligor shall deliver it to the executing
sheriff.

The lawful fees shall be paid to the


executing sheriff who shall turn over the
said amount within the same day to the
clerk of court that issued the writ.
Note: There is no valid payment when a
check is payable to the sheriff and not to
the judgment obligee. The obligation to
pay upon a judgment obligor still subsists
and a writ of execution may still be
enforced against him.
Satisfaction by Levy
LEVY
An act by which an officer sets part or
appropriates a part or whole of the
property of the judgment debtor for
purposes of the execution sale.
a. If payment cannot be made under
No. 1, the officer shall levy upon
the properties of the judgment
obligor of every kind and nature
which may be disposed of for value
and not otherwise exempt from
execution;
b. The obligor shall choose which
property may be levied upon. If the
obligor does not choose which
property or part thereof may be
levied upon, the officer shall first
levy on the personal properties,
then on the real properties if the
former are insufficient;
c. Real property, stocks, shares,
debts, credits and other personal
property, or any interest in either
real or personal property, may be
levied upon in like manner.
Garnishment of debts and credits
a. The officer may levy on debts due
the judgment obligor and other
credits, royalties, commissions
and other personal property not
capable of manual delivery in the
possession or control of third
parties.

b. Levy shall be made by serving


notice upon the person owing
such debts or having possession
or control of such credits to which
the judgment obligor is entitled.
c. Garnishee shall make a written
report to the court within 5 days
from
service
of
notice
of
garnishment stating whether or
not the judgment obligor has
sufficient funds to satisfy the
amount of the judgment.
d. The garnished amount shall be
delivered directly to the judgment
obligee within 10 working days
from service of notice on said
garnishee requiring such delivery,
except that the lawful fees shall be
paid directly to the court.
e. If there are several garnishees, the
judgment obligor shall indicate the
garnishee/s who shall be required
to deliver the amount due,
otherwise, the choice shall be
made by the judgment obligee.
PERSONS
DISQUALIFIED
FROM
PARTICIPATING IN THE EXECUTION
SALE:
1. Officer conducting the execution
sale or his deputy;
2. Guardian with respect to the
property under his guardianship;
3. Agents, the property entrusted to
them, unless with principals
consent;
4. Executors and administrators, the
property of the estate under
administration;
5. Public officers and employees, the
property of the State or any
subdivision thereof, or any GOCC,
the administration of which has
been entrusted to them;
6. Justices,
judges,
prosecuting
attorneys, clerks of courts, and
other officers and employees
connected with the administration

of justice, the property and rights


in litigation or levied upon an
execution before the court within
whose jurisdiction or territory
they exercise their respective
functions;
7. Lawyers, the property and rights
which may be the subject of
litigation in which they take part
by virtue of their profession;
8. Others specifically disqualified by
law.
ExAMPLE: Seller of goods who exercise
right of resale of goods
Section 10: Execution of Judgments
for Special Acts
Scope:
1. Conveyance, delivery of deeds;
2. Sale of personal or real property;
3. Delivery or Restitution of real
property;
4. Removal of improvements on
property subject of execution;
5. Delivery of personal property.

Judgment for Conveyance, Delivery or


Other Specific Acts; How Enforced
The court may, at the cost of the
defendant, direct the act to be done by
some other person appointed by the court
and the act when so done shall have the
effect as if done by the party. (Riguera
2013)
REMOVAL OF AN IMPROVEMENT
Requisites before demolition order is
issued:
1. Motion;
2. Notice to the adverse party;
3. Hearing;
4. Special order;

149

150
5. Reasonable
time
improvements

to

remove

Execution of Special Judgments


Special Judgment - one which requires
the performance of any act other than the
payment of money or the sale or delivery
of real or personal property under Secs. 9
& 10, which a party must personally do
because his personal qualifications and
circumstances have been taken into
consideration (Riguera 2013, citing Caluag
v Pecson, 82 Phil.8).
Note: the judgment should not require
the performance of a service otherwise
that would run afoul of the Constitutional
proscription
against
involuntary
servitude. (Riguera 2013).
How Enforced
A certified copy of the judgment shall be
attached to the writ of execution and
served by the officer upon the party
against whom the same is rendered or
upon any other persons required thereby,
or by law, to obey the same, and such
party or person may be punished for
contempt if he disobeys the same (Riguera
2013).
Writ of Possession employed to enforce
a judgment to recover the possession of
land. It commands the sheriff to enter the
land and give possession of it to the
person entitled under judgment.

Section 12: Effect of Levy on Third


Persons.
The levy on execution shall create a lien
in favor of the judgment obligee over the
right, title, and interest of the judgment
obligor in such property at the time of the
levy, subject to liens and encumbrances
then existing.

With respect to land, the writ of execution


shall be registered with the Registry of
Deeds in order to affect third persons
(Riguera 2013, see Secs. 69, 74, and
113(d) of P.D. No. 1529).
Section 14: Return of Writ of
Execution.
Writ
of
execution
is
returnable to the court after a judgment
is satisfied in part or in full.
In case the judgment cannot be satisfied
in full the sheriff shall report to the court
within 30 days after receipt and every 30
days until judgment is satisfied in full.
A writ of execution is valid for 5 years
from the date of entry of judgment.
Notice of Sale of Property on Execution
Property
Notice
Perishable
Posting written notice of
Property time and place of sale in 3
public
places,
in
conspicuous areas of the
municipal or city hall, post
office and public market
where the sale is to take
place.
Other
Personal
Property

Real
Property

Posting similar notice in 3


public places mentioned
above.
Posting for 20 days in 3
public places mentioned,
describing the property
and where the property to
be sold; if assessed value
exceeds
50,000,
by
publishing copy of notice
once a week for 2
consecutive weeks in a
newspaper
of
general
circulation in the province
or city.

All Cases

Written notice of sale


shall be given to the
judgment obligor, at least
3 days before the sale,
except in cases proved
under par.A.

Section 18: No sale if Judgment and


Cost Paid.
The debtor may stop auction sale if he pay
the amount required by the execution and
the costs.
Section 19: How Property Sold on
Execution; Who may Direct Manner
and Order of Sale.
1. Sales of property under execution
must be made at public auction,
to the highest bidder, to start at
the exact time fixed in the notice.
2. An excess property or proceeds of
the sale shall be delivered to the
judgment obligor.
3. The judgment obligor, if present at
the sale, may direct the order in
which property, real or personal,
shall be sold, when such property
consists of several known lots or
parcels which can be sold to
advantage separately.
4. The officer conducting the sale or
his deputes cannot purchase nor
be interested directly or indirectly
in any purchase at such sale.
5. The officer shall issue a certificate
of sale to the purchaser pursuant
to Sec. 24 to 26 of Rule 39.
Section 20: Refusal of Purchaser to
Pay.
Officer may again sell the property to the
highest bidder and shall not be
responsible for any loss;
But the court may order the refusing
purchaser to pay into the court the

amount of loss, with costs, and may


punish him for contempt if he disobeys
the order.

Section 21:
Purchaser.

Judgment

Obligee

as

General rule: If the oblige is the highest


bidder he need not pay the amount bid.
(Apply the law on compensation)
Exceptions:
1. When his bid is higher than the
judgment, he has to pay the cash
for the excess.
2. When the property is a subject of
a third-party claim.
RULES ON CERTIFICATE OF SALE
Section 23: Personal property capable
of manual delivery.
The officer making the sale must deliver
the property, and if desired, execute and
deliver to him a certificate of sale. The
certificate conveys to the purchaser all
the rights which the judgment obligor had
in such property as of the date of the levy
on execution or preliminary attachment.
Section 24: Personal Property NOT
Capable of Manual Delivery.
Officer making the sale must execute and
deliver to the purchaser a certificate of
sale.
Section 25: Real Property.
The officer must give to the purchaser a
certificate of sale. The certificate must be
registered in the registry of deeds of the
place where the property is located. This
is
necessary
since
the
one-year
redemption period commences from the
registration of the certificate of sale.

151

152

Section 26: Property Claimed by a


Third Person.
The certificate of sale to be issued by the
sheriff shall make express mention of the
existence of the third-party claim.
Sale of Personal
Property
Rule 39, sec.
23
No
right
of
redemption
Title
is
transferred after
payment
of
purchase price
and
delivery
upon purchaser

Sale of Real
Property
Rule 39, Sec. 25
1 year
period

redemption

Title is transferred
after the expiration of
the right to redeem

Remedies againstExecutory Judgments


orOrders:
1. Petitionforrelief
2. Directattack
3. Collateralattackjudgmentisnullonitsface
orcourthadnojurisdiction
Whencourt
mayorderexecutioneven
beforeanexecutoryjudgmentandpendin
ganappeal:
1. Lapse oftime wouldmake the ultimate
judgmentineffective;
2. Appealisclearlydilatory;
3. Judgment
isforsupportandthebeneficiaryisinneed
thereof;
4. Articlessubjectofthecaseareperishable;
5. Defendantsareexhaustingtheirincome
andhavenootherpropertyasidefromthe
proceedsfromthesubdivisionoflotssubj
ectoftheaction;
6. Movants were in extreme need of
the
premisessubjectofthesuitandthebondt
oanswerfordamagesincaseofreversalon

appeal(supersedeasbond)waspostedby
them;
7. Judgmentdebtorisinimminentdangero
finsolvency;
8. Prevailing
partyisofadvancedageandina
precariousstateofhealthandtherightint
hejudgmentisnontransmissiblebeingforsupport;
9. Prevailingparty postssufficient bond
to
answerfordamagesincaseofreversalofju
dgment
Note:
Butinmostcases,themerefilingofab
ondisnotsufficient
justificationfordiscretionaryexecuti
on.
PROPERTIES
EXEMPT
FROM
EXECUTION
1. Family home, homestead in which he
resides, and land necessarily used in
connection therewith;
2. Lettered gravestones;
3. (Insurance proceeds) Money, benefits,
annuities accruing or in any manner
growing out of any life insurance;
4. Provisions for individual or family use
sufficient for 4 months;
5. Clothing and other articles necessary
for ordinary personal use, excluding
jewelry;
6. Household furniture and utensils
necessary for housekeeping NOT
exceeding P100,000;
7. Implements and ordinary tools used
in trade, employment, or livelihood;
8. Earnings, salaries, or wages for
personal services within the 4 months
preceding
the
levy
which
are
necessary for the support of the
family;
9. Fishing boat (1) and accessories NOT
more than P100,000 owned by a
fisherman and by which he earns his
living;

10. Right to receive legal Support or any


pension
or
gratuity
from
the
government;
11. Properties especially exempted by Law.
12. Beasts of burden, including 3 horses,
cows, or carabaos, used in his
ordinary occupation;
13. Professional libraries and equipment
of judges, lawyers, physicians, etc.
NOT exceeding P300,000. (Riguera
2015)
Exemption does not apply if execution is
upon a judgment for its purchase price or
for foreclosure of mortgage. Right of
Exemption is a personal right granted to
the judgment creditor. Thus, the sheriff
may not claim it.
Right of Exemption on Family Home
It is not sufficient that the person
claiming exemption merely alleges that
such property is a family home. This
claim for exemption must be set and
proved to the sheriff. Failure to do so
would estop the party from later claiming
the exemption (Riguera 2013, citing
Spouses Versola v CA, 2006).
Income Exempted Does Not Apply to
Juridical Persons
Rule 39, Sec. 13 and Sec. 1 Rule IV NLRC
Manual on Execution of Judgments are
confined only to natural persons (Riguera
2013, citing DArmoured Security and Inv.
Agency v 2005).
Proceedings Where Property Is Claimed
By Third Persons
In Relation to Third-Party
Attachment and Replevin

Claim

in

Third-party claim (TERCERIA) a remedy


afforded to a third-party with a claim to
property:
1. Levied,

2. Attached, or
3. Seized by virtue of a court order,
Wherein the third-party makes an
affidavit of his title or right of possession
to the property and serves the affidavit
upon:
1. The court officer and
2. The judgment obligee.
Note: It is available to a third-party in
cases of levy on execution, attachment
and replevin.
Procedure:
1. The third-party shall make an
affidavit showing his title to or right of
possession over the property.
2. He shall serve the affidavit upon the
levying officer, files a bond approved
by the court to indemnify third-party
claimant, not the sheriff or officer.
3. Amount of bond should be not less
than value of property levied on.
Sheriff shall NOT be liable for
damages if bond is filed.
4. A claim for damages for the taking or
keeping of the property may be
enforced by the third-party against
the bond provided he files an action
within 120 days from the filing of the
bond. (Riguera, 2013)
Remedies Available to third-party
1. Terceria or Third-party claim under
Rule 39, Sec. 16;
2. Reivindicatory action to recover
possession of the property from the
officer or the purchaser at the
execution sale. This is filed separately
in cases of levy on execution;
3. Indemnity bond, if one is filed, may be
assailed in an action for damages;
4. Motion or application with the court
for the release of the property based
on continuing jurisdiction of a court
with respect to matters concerning

153

154
the execution or enforcement of its
judgment
(Riguera, 2013)
Note: (TRIMI). In third-party claims
involving attachment or replevin, the
third-party claimant may vindicate his
claim to the property by Intervention
since the action is still pending.
Rules on Redemption
1. There is a right of redemption
in real property but such right
is not afforded in case of
personal property.
2. In case of execution of levy on
growing crops, defendant has
no right to redeem. Such
growing crops are classified as
real property under Article
415(2) of the Civil Code, the
right to the growing crops
mobilizes
the
same
by
anticipation (Riguera 2013,
citing Sibal v Valdez, 50 Phil.
512).
3. Rents, Earnings and Income of
Property Pending Redemption.
Refer to Rule 39, Sec. 32
Purchaser or redemptioner
shall not be entitled to
receive rents and income of
property sold inasmuch as
these
belong
to
the
judgment obligor until the
expiration of the period of
redemption.
Section 27: Who may Redeem Real
Property Sold
1. Judgment obligor or his successor
in interest in the whole or any part
of the property;
2. Redemptioner or Creditor having
lien by virtue of an attachment,
judgment, or mortgage on the
property sold subsequent to the lien
under which the property was sold.

PROCEDURE:
1. The
judgment
obligor,
whether
exercising a first or subsequent
registration, has one year from the
date of the registration of the
certificate of sale to redeem property
sold by paying the purchaser the
amount of his purchase, with 1% per
month interest plus any assessments
or taxes which he may have paid
thereon after purchase with interest
on said amount at 1% per month.
Once he redeems, there shall be no
further redemption. In no case may
the judgment obligor redeem beyond
the one-year period.
2. The redemptioner exercising first
redemption has the same one-year
period within which to redeem.
3. The
redemptioner
exercising
a
subsequent registration has a period
of 60 days after the last redemption
within
which
to
redeem.
The
redemptioner
may
redeem
even
beyond the one-year period provided it
is within 60 days after the last
redemption.
Section
30:
Proof
Required
of
Redemptioner
1. Copy of the judgment or final order
under which he claims the right to
redeem.
2. If he redeems upon a mortgage or
other lien, a memorandum of record
3. Original or certified true copy of any
assignment
4. Affidavit executed by him or his agent.
Section 33: Deed and Possession to be
given at expiration of Redemption
Period; By Whom executed or given
1. Two document which the sheriff
executes in case of Real Property:
2. Certificate of Sale executed after
auction sale.

3. Deed of conveyance executed after 1


year if there is no redemption.

any property of the judgment obligor in


his possession.

Section 34: Recovery of Price if sale is


not effective; Revival of Judgment
1. Recover the money from oblige
2. Have the judgment revived.

Such examination is now required to be


conducted by the court which issued the
writ of execution, or by a commissioner
appointed by it, within the province or
city where such debtor resides or is found
(Regalado, 10th Ed.).

REMEDIES IN AID OF EXECUTION:


1. Examination of judgment obligor
when judgment unsatisfied.
2. Examination of obligor of judgment
obligor. Enforcement of attendance
and conduct of examination.
3. Order of application of property and
income to satisfaction of judgment.
4. Appointment of receiver.
5. Sale of ascertainable interest of
judgment obligor in real estate.
6. Proceedings
when
indebtedness
denied or another person claims the
property.
Satisfaction of Judgment - Compliance
with or fulfillment of the mandate of
judgment.
Section 36: Examination of Judgment
Obligor when Judgment is Unsatisfies
f
theexecutionisreturnedunsatisfied,thejud
gmentcreditormaycauseexaminationofthej
udgmentdebtorastohispropertyandincome
.
However,nojudgmentobligorshallbesorequ
iredtoappearbeforeacourtorcommissioner
outsidetheprovinceorcityinwhichsuchoblig
orresidesorisfound.
Section 37: Examination of Obligor of
Judgment Obligor.
In case Judgment is not fully satisfied,
the judgment creditor may cause the
examination of the debtor of the judgment
obligor as to any debt owed by him or to

If after the examination, the court finds


property of the judgment debtor, either in
his own hands or that of any person, the
court may order the property applied to
the satisfaction of the judgment.
Section 47: Effect of Judgment or
Final Orders.
Res Judicata(A thing decided) - once a
matter has been decided with finality by a
court, the matter is conclusive as between
the parties to the case and can no longer
be relitigated.
Requisites of Bar by Prior Judgment:
1. Identify subject matter, parties,
and causes of action between the
prior action and the subsequent
action;
2. Prior judgment must be rendered
by a court having Jurisdiction over
the subject matter and the parties;
3. Prior judgment or order must be
on the Merits; a dismissal order
with prejudice or has the effect of
adjudication on the merits, even if
not on the merits, constitutes res
judicata.
4. Prior judgment must be Final and
executor or final and unappealable
(Riguera 2013).
RULES ON BAR BY PRIOR JUDGMENT
1. In case of judgment or final order
against:

155

156
a. A specific thing;
b. Probate of a will, or the
administration of estate of a
deceased person, or;
c. With respect to the personal,
political or legal condition or
status of a particular person or
his relationship to another, it is
conclusive upon (TWAC)
i.
Title to the thing;
ii.
Will or administration, or;
iii.
Condition,
status,
or
relationship of the person
Note: This is the Rule on res judicata in
judgments in rem.(Regalado, 10th Ed.)
2. In other cases/matters directly
adjudged, or matters relating thereto
that could have been raised subsequent
to commencement of action, judgment is
conclusive between parties and their
successors in interest.
Note: This is the Rule on res judicata in
judgments in personam.(Regalado, 10th
Ed.)
Requisites
of
Conclusiveness
of
Judgment
Same as those above, except that causes
of action are different (Riguera 2015).
Rule on Conclusiveness of Judgment
In any other litigation, only those deemed
to have been adjudged in a former
judgment or which was actually and
necessarily
included
therein
are
conclusive upon the same parties or their
successors-in-interest (Riguera 2013).
Section 48: Enforcement and Effect of
Foreign Judgments or Final Orders.
EffectofForeignJudgment:
1. Judgment
uponaspecificthing,
conclusiveuponthetitletothething;

Note: Rule on foreign judgments


in actions in rem (Regalado).
2. Ifagainstaperson,judgmentispresu
mptiveevidenceofaright
as
betweenthepartiesandtheirsuccess
orsininterest;
Note: Rule on foreign judgments
in actions in personam (Regalado).
Thejudgmentofaforeigntribunalcannotbee
nforcedbyexecutionin
thePhilippines.Suchjudgmentonlycreatesa
rightofactionanditsnonsatisfaction,acauseofaction,anditisnecess
arythatasuitbebroughtuponsaidforeignjud
gmentinourlocalcourts.
Note:Foreignjudgments
contemplated
under Sec.48:
1. Maybeconclusive,ifinrem,or
2. Presumptive,ifinpersonam,
Itisnecessarythatin
eithercaseacivilactionshouldbefiledin
ourcourts,toallowthelosingpartyanopp
ortunitytochallengethejudgmentonthe
groundsprovided
anddefend
itselfagainsttheenforcementofthatdeci
sioninthelocalforum(RegaladocitingMij
aresvRanada,GRNo.139325,2005).
WhenForeignJudgmentmayberepelled:
1. Evidenceofwantofjurisdiction
2. Wantofnoticetoparty
3. Collusion
4. Fraud
5. Clearmistakeoflaw.

RULE 40
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC
This rule governs appeal from judgment
or final order of an MTC to RTC exercising

jurisdiction over the area to which the


former pertains.
Where to Appeal:
An appeal from a judgment or order of a
Municipal Trial Court may be taken to the
Regional Trial Court exercising
jurisdiction over the area to which the
former pertains.
Title of the case:
As it was in the court of origin. But the
party appealing the case shall be further
referred to as appellant and the adverse
party as the appellee.

Section 2: When to Appeal


An appeal may be taken within 15 days
after notice to the appellant of the
judgment or final order appealed from.
Where record on appeal is required, the
appellant shall file a notice of appeal and
a record on appeal within 30 days after
notice of the judgment.
The period to appeal shall be interrupted
by a timely motion for new trial or
reconsideration.
No motion for extension of time to file a
motion for new trial or reconsideration
shall be allowed.
NOTE: To standardize the appeal periods
provided in the Rules and to afford
litigants fair opportunity to appeal their
cases, the Court deems it practical to
allow a fresh period of 15 days within
which to file the notice of appeal in the
Regional Trial Court, counted from receipt
of the order dismissing a motion for a new
trial or motion for reconsideration.
Henceforth, this fresh period rule
shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts
to Regional Trial Courts. (Neypes vs.

Court of Appeals, 469 SCRA 633, 2005)


Section 3: How to Appeal.
1. File a notice of appeal with the
trial court.
2. Notice of appeal must indicate:
a. Parties
b. judgment or final order
appealed from
c. material
dates
showing
timeliness of appeal
3. A copy served on the adverse
party.
4. Payment in full of docket fees and
other lawful fees
NOTE: A record on appeal shall be
required only in a) special proceedings
and b) in other cases of multiple or
separate appeals. The forms and contents
of the record on appeal shall be as
provided in Sec. 6, Rule 41.
Material Dates Showing the Timeliness
of the Appeal
The material dates showing the timeliness
of an appeal includes:
1. The day the notice of judgment or final
order was received
2. The day when a motion for
reconsideration or new trial, if any, was
filed
3. The day when notice of the denial of
the motion for reconsideration or new
trial was received (Riguera 2015)
APPEAL BONDS
Appeal bonds under Sec. 3 Rule 40 and
Sec. 5 Rule 41 was removed by the
Interim Rules. Under the 1997 Rules of
Civil Procedure, appeal bonds are no
longer provided therein.
An exception is found under Sec. 46 of
the Alternative Dispute Resolution Act
(RA 9285) which provides that the losing
party who appeals to the CA from a
judgment of the court confirming the

157

158
arbitral award shall be required by the
appellate court to post counterbond
executed in favor of the prevailing party
equal to the amount of the award.
(Riguera 2013)
Section 4: Perfection of Appeal.
Governed by the provisions of Sec. 9, Rule
41.
Section 5: Appellate Court Docket and
other Lawful Fees
Within the period for taking an appeal,
the appellant shall pay to the clerk of
court which rendered judgment docket
and other lawful fees otherwise it is a
ground for dismissal.
Section 6: Duty of the Clerk of Court
The clerk of court shall within 15 days
from perfection of appeal:
1. Transmit to the RTC the original record
or the record on appeal, with the
transcripts and exhibits; and
2. Certify them as complete record.

1.

2.
3.

Section 7: Procedure in RTC


Upon receipt of the complete record, the
clerk of court of the RTC shall notify the
parties of such fact;
Within 15 days from notice, the appellant
shall submit a memorandum.
Within 15 days from receipt of the
appellants memorandum. Failure of the
appellant to file memorandum shall be a
ground for dismissal.
Section 8: Appeals from Orders
dismissing the case without trial; Lack
of Jurisdiction
If the appeal is taken from an order of the
lower court dismissing the case without a
trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case
may be.

In case of affirmance and the ground is


lack of jurisdiction over the subject
matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case
on the merits as if the case was originally
filed with it.
In case of reversal, the case shall be
remanded for further proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it
has original jurisdiction thereof, but shall
decide the case in accordance with the
preceding section, without prejudice to
the admission of amended pleadings and
additional evidence in interest of justice.
Section 9: Applicability of Rule 41
The other provisions of Rule 41 shall
apply to appeals provided herein (Rule 40)
insofar as not inconsistent with or may
serve to supplement the provisions.
Direct Appeal to SC, Not Applicable
The provision allowing direct appeal to the
Supreme Court on pure question/s of law
applies only to a judgment of the RTC,
not that of the MTC. (Riano 2013, citing
Sec. 2(c) Rule 41).
Delegated Jurisdiction in Cadastral and
Land Registration Cases
Under Sec. 34 of B.P. Blg. 129 on the
delegated jurisdiction of the MTC in
cadastral and land registration cases, it is
provided that the decision of the MTC
shall be appealable in the same manner
as decisions of the RTC. (Riano 2015)

RULE 41
APPEAL FROM JUDGMENTS OR
FINAL ORDERS THE RTC

Rule 41 refers to an ordinary appeal from


the RTC to the CA in cases where the
RTC rendered a decision in the exercise of
its ORIGINAL JURISDICTION.E
RTC JURISDICTION
Q:Petitioner bank filed a complaint for
annulment
of
title,
revocation
of
certificate
and
damages
against
respondent on RTC Bulacan. On the
other hand, respondent filed a motion to
dismiss alleging that RTC of Bulacan has
no jurisdiction over the case because the
subject property have an assessed value
of less than P20,000. Petitioner insists
that the property involved has an
assessed value of more than P20k as
shown in a Tax Declaration attached in
the complaint. Does the RTC has
exclusive original jurisdiction over the
matter?
A: Yes. Under Batas Pambansa Bilang
129, as amended by Republic Act No.
7691, the RTC has exclusive original
jurisdiction over civil actions which
involve title to possession of real property,
or any interest therein, where the
assessed value of the property involved
exceeds P20k. The tax declaration
showing the assessed value of the
property is deemed a part of the
complaint and should be considered
together with it in determining that the
RTC has exclusive original jurisdiction.
(BSP v. Legaspi, Mar. 2, 2016)
Subject of Appeal (Sec.1) (As amended
by A.M. No. 07-7-12-SC December 4, 2007)
Q: What judgment or orders may be
appealed?
A: An appeal may be taken from a
judgment or final order that completely
disposes of the case, or of a particular

matter therein when declared by these


Rules to be appealable.
A court order is final in character if it
puts an end to the particular matter
resolved, leaving thereafter no substantial
proceeding to be had in connection
therewith except its execution. (Bairan vs.
Tan Siu Lay, G.R. No. L-19460, 1966)
Interlocutory Order
An order which does not dispose of the
case, but leaves something else to be done
by the trial court on the merits of the
case.
Q: What judgments or orders may not
be appealed?
A:(SIDE-CAP-SSCC)
1. An order denying a petition for
relief or any similar motion
seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing
an appeal;
4. An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or
duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third-party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and

159

160
7. An order dismissing an action
without prejudice (Sec. 1 Rule 41
as amended by SC Resolution
effective 27 December 2007).
(SSCC)
8. A judgment of direct contempt
(Sec. 2 Rule 71)
9. Compromise judgment
10. Judgments of the court in
summary judicial proceedings in
the family law (Art. 247 Family
Code)
11. Judgments in small claims cases
(Sec. 23 Rules of Procedure for
Small Claims Cases). (Riguera ,
Primer on Remedial Law, Vol.1
2015)
Perfection of Appeal. (Sec.9.)
Notice of Appeal A partys appeal is
perfected upon the filing of the notice of
appeal in due time.
The court loses jurisdiction over the case
upon:
a. Perfection of the appeal filed in
due time; and
b. Expiration of the time to appeal by
the other parties
Record on Appeal
A partys appeal is perfected upon the
approval of the record on appeal filed in
due time.
The court loses jurisdiction only over the
subject matter upon:
a. Approval of the records on appeal
filed in due time; and
b. Expiration of the time to appeal
of the other parties

Residual Jurisdiction
It is the power of the trial court after it
has lost jurisdiction but prior to the
transmittal of the original record or the
record on appeal, to: (PWICE)
a. Issue orders for the protection
and preservation of the parties'
rights which do not involve any
matter litigated by the appeal;
b. Approve compromises;
c. Permit
appeals
of
indigent
parties;
d. Order execution pending appeal
in accordance with Sec. 2 Rule
39, and;
e. Allow withdrawal of the appeal.
(Riguera 2015).
Remedy When Appeal is Not Allowed
A party may file a Special Civil Action of
Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or Mandamus if there is no
performance of duty.
Under Sec. 1 Rule 41, no appeal lies from
an order dismissing a case without
prejudice and hence a party may file an
appropriate civil action under Rule 65
(Riguera 2013, citing Casupanan v Laroya,
G.R. No. 145391, 2002).
WHERE APPEALS PERMITTED BEYOND
REGLEMENTARY PERIOD
1. Matters of life, liberty, honor or
property;
2. Counsels negligence without any
negligence on the client;
3. Existence of special or compelling
circumstances;
4. Merits of the case.
WHEN APPEAL IS A MATTER OF
RIGHT; EFFECTS
1. Ordinary appeal is a matter of right.

This means that the appellate court


should review the case, and this duty
is compellable by mandamus.
2. Appeals under Rules 42, 43, and 45
are NOT a matter of right.
3. Review is discretionary and the
appellate court may dismiss the
petition outright if it finds that the
questions raised are too unsubstantial
to require consideration (Riguera
2013).

RULE 42
PETITION FOR REVIEW FROM
THE REGIONAL TRIAL COURT
TO THE COURT OF APPEALS
Rule 42 refers to a mode of appeal from
the RTC to CA in cases where RTC
rendered a decision in the exercise of its
APPELLATE JURISDICTION.
Section 1. How Appeal Taken.
1. Filing a verified petition for review
with the CA
2. Payment of docket and other lawful
fees
3. Depositing 500.00 for costs
4. Serving the RTC and the adverse
party a copy.
WHEN TO APPEAL:
Within 15 days from notice of the decision
sought to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after
judgment.
THE CA MAY GRANT AN ADDITIONAL
PERIOD OF 15 DAYS ONLY WITHIN
WHICH TO FILE THE PETITION FOR
REVIEW:
1. Upon proper motion and
2. Payment of the full amount of the
docket and other lawful fees and the
deposit for costs

3. Before
the
expiration
reglementary period,

of

the

No further extension shall be granted


except for the most compelling reason and
in no case to exceed 15 days.
APPEAL FROM
THE RTC
Rule 41
File
notice
of
appeal with RTC

PETITION FOR
REVIEW FROM THE
RTC TO THE CA
Rule 42
File petition for review
directly with the CA

If MR is denied,
appeal within the
remaining
balance of the 15
day period.

If MR denied, Fresh
Period Rule applies.

15 day period to
appeal is NONExtendible.

15 day period to file


petition for review is
Extendible.

Section 2. Form and Contents.


1. Petition must be filed in 7 copies with
the original copy intended for CA
NOTE: This has been amended in view of
A.M. No. 11-9-4-SC, Efficient Use of
Paper Rule. In the Court of Appeals, only
one original (properly marked) and two
copies with their annexes.
2. Payment of docket and other lawful
fees
3. Deposit for costs
4. Proof of service of the petition
5. Contents of petition must specify:
a. Names
of
parties,
without
impleading the court or judges
b. Material dates
c. Errors of facts and/or law

161

162
d. Duplicate originals or certified
true and correct copies of the
judgment or final order
e. Certification
of
non-forum
shopping
Section 3. Effect of Failure to Comply
with Requirements.
It shall be a sufficient ground for the
dismissal of the petition.
Section 8: Perfection of Appeal by
Petition For Review
1. Upon timely filing
2. Payment of docket and other lawful
fees
EFFECT OF APPEAL
General Rule: The appeal shall not stay
the award, judgment, final order or
resolution sought to be reviewed.
Exception: CA shall direct otherwise
upon such terms as it may deem just.
Section 9: Petition Given Due Course.
If petition is given due course, CA may set
the case for oral argument or require
parties to submit memoranda. The case
shall be deemed submitted for a decision
after the filing of the last pleading or
memoranda.
Decisions of Special Agrarian Courts
Sec. 60 of the Comprehensive Agrarian
Reform Law of 1998 provides that an
appeal may be taken from a decision of
the Special Agrarian Courts by filing a
petition for review with the CA within 15
days from receipt of the notice of the
decision. Otherwise, the decision shall
become final.
Hence, the proper mode of appeal is by a
petition for review under Rule 42 and not
through an ordinary appeal under Rule

41(Riguera 2013, citing Land Bank v CA,


GR No. 190660, 2011).

RULE 43
APPEALS FROM QUASIJUDICIAL AGENCIES TO THE CA
Section 1: Scope.
Quasi-judicial agencies covered; appeals
from quasi-judicial bodies to the court of
appeals
1. Civil Service Commission;
2. Securities and Exchange Commission;
3. Office of the President;
4. Land Registration Authority;
5. Social Security Commission;
6. Civil Aeronautics Board;
7. Bureau of Patents, Trademarks and
Technology Transfer;
8. National
Electrification
Administration;
9. Energy Regulatory Board;
10. National
Telecommunications
Commission;
11. Department of Agrarian Reform under
RA No. 6657;
12. GSIS;
13. Employees
Compensation
Commission;
14. Agricultural Inventions Board;
15. Insurance Commission;
16. Philippine Atomic Energy Commission
17. Board of Investments
18. Construction Industry Arbitration
Commission;
19. Voluntary arbitrators
20. Ombudsman
(administrative
disciplinary cases)
Section
2:
Cases
not
covered.
Judgments or final orders issued under
the Labor Code.
1. Special rules of procedure have also
been adopted for cases formerly within
the jurisdiction and adjudicatory
processes of the SEC (Regalado, 10th
Ed.).

a. Interim Rules of Procedure for


Intra-Corporate
Controversies
under R.A. 8799 (A.M. No. 01-204-SC, effective April 1, 2001)
b. Re: Mode of Appeal in Cases
Formerly Cognizable by the SEC
(A.M. No. 04-9-07- SC, effective
Sept. 30, 2004)
APPEAL FROM JUDGMENTS OR FINAL
ORDERS OF THE CTA
Resolution of a Division
A party adversely affected by a resolution
of a division of CTA on a motion for
reconsideration or a new trial, may file a
petition for review with the CTA en banc
(Sec.18 R.A.1125, as amended by Sec. 11
R.A. 9282).
Motion for Reconsideration or New
Trial: A Condition Precedent
A motion for reconsideration or a new
trial filed with the CTA division is a
condition precedent for filing a petition for
review with CTA en banc.
REMEDY FROM CTA EN BANC
A party adversely affected by a decision or
ruling of the CTA en banc may file with
the Supreme Court a verified petition for
review on certiorari under Rule 45 of the
1997 Rules on Civil Procedure (sec.19,
R.A. 1125, as amended by Sec. 12, R.A.
9282;
Riguera,
Primer-Reviewer
on
Remedial Law).
Note: The CTAs decision is no longer
appealable to the CA. The appeal to the
CTA shall be by petition for review under
a procedure analogous to that provided
for under Rules 42 and 43 of the Rules of
Court. However, it is not governed by the
technical rules of evidence. (RA 9282,
March 30 2004).

RULE 44

ORDINARY APPEALED CASES


Section 1.Title of the Case
a. If the plaintiff appeals plaintiffappellant and defendant-appellee
b. If defendant appeals plaintiffappellee and defendant-appellant
c. If both appeal, the plaintiff will be
designated as plaintiff-appellant
while the defendant is referred to
as defendant-appellant (Riguera,
2015).
CROSS-APPEAL
One where both parties have appealed
(Riguera, 2015).
PAPERS TO BE FILED BY THE PARTIES
IN AN ORDINARY APPEAL
1. Appellants Brief (Sec.7)
Filedwithin45daysfromthereceiptofnoti
ceof
theclerkofcourtthatalltheevidence,oral
anddocumentary,areattachedtotherec
ord.Itshallbein7legiblytypewritten,mi
meographedorprintedcopieswithproofo
fserviceof2copiesthereofupontheappell
ee.
CONTENTS OF APPELLANTS BRIEF.
(Sec. 13)
a. A subject index ofthematter inthebrief
withadigestoftheargumentsandpageref
erences,andatableofcasesalphabeticall
yarranged,textbooksandstatutes
citedwithreferencestothepages
wheretheyarecited;
b. An assignment oferrors intended to be
urged,whicherrorsshallbeseparately,di
stinctlyand
concisely
stated
withoutrepetitionandnumberedconsec
utively;
c. "StatementoftheCase,"aclearandconcis
e
statementofthenatureoftheaction,asu
mmaryoftheproceedings,theappealedr
ulingsandordersofthecourt,thenatureo

163

164

d.

e.

f.

g.

h.

fthejudgmentandanyothermattersnece
ssarytoanunderstandingofthenatureof
thecontroversy,withpagereferencestot
herecord;
"Statement of Facts,"a clearand
concise
statementin
anarrativeformofthefactsadmittedbybo
thpartiesandofthoseincontroversy,toge
therwiththesubstanceoftheproofrelatin
gtheretoinsufficientdetailtomakeitclea
rlyintelligible,withpagereferencestothe
record;
Aclearandconcisestatementoftheissue
s
offactorlawtobesubmittedtothecourtfor
itsjudgment;
"Argument,"
the
appellants
argumentson
eachassignmentoferrorwithpagerefere
ncestotherecord.Theauthoritiesreliedu
ponshallbecitedbythepage
ofthereportat
whichthecasebeginsandthepageofthere
portonwhichthecitationisfound;
Undertheheading"Relief,"aspecification
oftheorderorjudgmentwhichtheappella
ntseeks;and
Incases
notbroughtupbyrecordonappeal,
theappellantsbriefshallcontain,asana
ppendix,acopyofthejudgmentorfinalord
erappealedfrom.

2. Appellees Brief (Sec. 8)


Filed within 45 days from the receipt
of
appellantsbrief,withaproofofserviceof2
copiesthereofuponappellant.
Contents of Appellees Brief (Sec. 14)
a. A subject index ofthematter inthebrief
withadigestoftheargumentsandpageref
erences,andatableofcasesalphabeticall
yarranged,textbooksandstatutescited
withreferencestothepageswheretheyar
ecited;
b. "StatementofFacts,"theappelleeshallst
atethatheacceptsthe

statementoffactsintheappellantsbrief,
orundertheheading"CounterStatementofFacts,"heshallpointoutsuc
hinsufficienciesorinaccuraciesashebeli
evesexistintheappellantsstatementoff
actswithreferencestothepagesoftherec
ordinsupportthereof,butwithoutrepetit
ionofmattersintheappellantsstatemen
toffacts;and
c. "Argument,"theappelleeshallsetforthhi
sargumentsinthecaseoneachassignme
ntoferrorwithpagereferencestotherecor
d.Theauthorities relied on shallbecited
by
the
pageofthereportatwhichthecasebegins
andthepageofthereportonwhichthecita
tionisfound.
3. Appellants Reply Brief (Sec. 9)
Filed within 20 days from receipt of
the appellees brief, answering points
in the appellees brief not covered in
his main brief.
Withdrawal of Appeal as a Matter of
Right. (Sec. 3)
An appeal may be withdrawn as a
matter of right at any time before the
filing
of
the
appellees
brief.
Thereafter, the withdrawal may be
allowed in the courts discretion
(Riguera, Primer on Remedial Law, Vol.
12015).
POWER OF COURT OF APPEALS(THEF)
1. Try cases
2. Conduct hearings
3. Receive evidence
4. Perform acts necessary to resolve
factual issues on cases falling within
its original and appellate jurisdiction
Subject to the rule that factual or legal
issues not raised in the lower court may
not be raised on appeal (Riguera, 2013).

EXTENSION OF
BRIEFS. (Sec.12)

TIME

FOR

FILING

General Rule: Extension of time is not


allowed.
Exception: May be allowed for:
1. Good and sufficient cause, and
2. A motion for extension is filed before
the expiration of the time sought to be
extended.
Questions that may be
Appeal. (Sec.15)
Questions of fact and law.

raised

on

Purely legal questions cannot be raised.


Memorandum
In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the
parties shall file, in lieu of briefs, their
respective memoranda within a nonextendible period of 30 days from the
receipt of the notice issued by the clerk
that
all
the
evidence,
oral
and
documentary, is already attached to the
record (Riguera 2013).
BRIEF
Filed
ordinary
appeals

in

Filed within 45
days
Contents
specified
by
rules

MEMORANDUM
Filed in
1. certiorari,
2. prohibition,
3. mandamus,
4. quo warranto and
5.
Habeas
corpus
cases
Filed within 30 days
Shorter, briefer, only
one issue involved
no subject index or
assignment of errors
just facts and law
applicable.

RULE 45
APPEAL BY CERTIORARI TO
THE SUPREME COURT
Q: What is a Petition for Review on
Certiorari (Appeal by Certiorari)
A: It is a mode of appeal to the SC from a
judgment or final order of the:
1. CA;
2. SB;
3. RTC, where the appeals raises only
pure questions of law;
4. CTA en banc (See Sec. 19 R.A. 1125
as amended by R.A. 9282);
5. CA, SB, and RTC in a writ of amparo
or writ of habeas data case (See Sec.
19, Rule on the Writ of Amparo; Sec.
19, Rule on the Writ of Habeas Data)
Notes:
1. An appeal to the Supreme Court may
be taken only by the filing of a verified
petition for review on certiorari,
Except in criminal cases where the
penalty imposed is reclusion perpetua
or life imprisonment (Sec. 3 Rule 56).
2. A judgment imposing the death
penalty is subject to automatic review.
(Riguera 2013).
Section 1. Filing of Petition with the
Supreme Court.
(As amended A.M. No. 07-7-12-SC
December 4, 2007)
1. From a judgment or final order of CA,
Sandiganbayan, RTC, other courts
whenever authorized by law
2. Verified petition for review on
certiorari
3. The
petition
may
include
an
application for a writ of preliminary
injunction
or
other
provisional
remedies

165

166
4. Petition shall raise only question of
law, which must be distinctly set
forth.
Section 2. How to Appeal.
1. Thepetitionshallbefiledwithin15days
from:
a. Notice ofthejudgmentor final order
orresolutionappealedfrom,or
b. Ofthedenialofthepetitionersmotion
fornewtrialorreconsiderationfiledin
duetimeafternoticeofjudgment.
2.
Onmotiondulyfiledandserved,withfullp
aymentofthedocketandotherlawfulfees
and
3. Thedeposit
forcostsbeforetheexpirationoftheregle
mentaryperiod,
Note:
TheSupremeCourtmayfor
justifiablereasonsgrantanextensionof30
daysonlywithinwhichtofilethepetition.
A.M.No.00-2-14-SC(Amendments
to
Sec. 4, Rule 7 and Sec. 13, Rule 41)
Anyextensionoftimegrantedbyacourtshoul
d
becomputedfromtheexpirationoftheorigina
lperiod,regardlessofthefactthatsaidexpiryd
atefallsonaSaturday,Sunday,orlegalholida
y.(Riguera2013,p.485)
AnRTCjudgehasnorighttodisapproveanotic
eofappealonthegroundthattheissuesraised
involveapurequestionoflaw,andthat
themodeofappealiserroneous.Thatisthepre
rogativeoftheCA,nottheRTCjudge.Anoticeo
fappealneednotbeapproved
bythejudge,unlikearecordonappeal.
(Khov.Camacho)
Note: Fresh Period Rule Applies in this
Rule.
Question of Fact

Question of Law

Exists when there


is a doubt or
controversy as to
what the law is
on a certain state
of facts.

Exists
when
the
doubt or difference
rises as to the truth
or falsehood of facts.

TEST TO DETERMINE WHETHER


QUESTION OF FACT OR LAW
Whethertheappellatecourtcandetermineth
eissueraisedwithoutreviewingorevaluating
theevidence,inwhichcaseitisaquestionofla
w,otherwise,itwillbeaquestionoffact.
CONCLUSIVENESS OF FACTS
General Rule: The findings of fact of the
CA are final and conclusive and cannot be
reviewed on appeal to the SC.
Exceptions:
1. When the finding is grounded entirely
on
speculations,
surmises
or
conjectures;
2. When inference made is manifestly
absurd, mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of
discretion in the appreciation of facts;
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 the
admissions
of
appellants
and
appellees;
7. When the findings of fact of the CA
are at variance with those of the trail
court, the SC has to review the
evidence in order to arrive at the
correct findings based on the record;
8. When the findings of fact are
conclusions
without
citation
of
specific evidence on which they are
based;

9. When the facts set forth in the


petition as well as in the petitioners
main and reply briefs are not disputed
by the respondents;
10. The findings of fact of the CA is
premised on the supposed evidence
and is contradicted by the evidence on
record;
11. 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 4. Contents of Petition.
1. Statethefullnameoftheappealingpartya
sthepetitionerandtheadversepartyasth
erespondent,withoutimpleadingthelow
ercourtsor
judgesthereofeitheraspetitionersorresp
ondents;
2. Indicatethematerialdates
a. Whennoticeofthejudgmentorfinalor
derorresolutionsubjectthereofwasr
eceived;
b. Whena
motionfornewtrialor
reconsideration,ifany,wasfiledand;
c. Whennoticeofthedenial thereofwas
received;
3. Set forth concisely a statementof the
mattersinvolved, and the reasonsor
argumentsreliedonfortheallowanceofth
epetition
4. Beaccompaniedbyaclearlylegibleduplic
ateoriginalora
certified
truecopyof
thejudgmentorfinalorderorresolutionc
ertifiedbytheclerkofcourtofthecourtaqu
oandtherequisitenumberofplaincopiest
hereof,andsuchmaterialportionsof
therecordaswouldsupportthepetition;
5. Containasworncertificationagainstforu
mshoppingasprovidedinRule42, Sec.2.

epartyshallbesubmittedtogetherwith
thepetition.Refer to Rule 45, Sec.3.

1.

2.

a.
b.
c.

GROUNDSFOROUTRIGHTDISMISSA
LORDENIAL
Failuretocomplywithanyofthefollowing:
a. Paymentofdocketorotherlawful
fees;
b. Depositforcosts;
c. Proofofserviceofthepetition;
and the contents of and the
documents
whichshouldaccompanythepetition
shallbea
sufficientgroundforthedismissalth
ereof.
Onitsowninitiative,theSCmaydeny the
petition onthe ground that theappeal
is either:
Withoutmerit;
Prosecutedmanifestlyfordelay,or;
Thatthequestionsraisedthereinare
toounsubstantialtorequireconsideratio
n.(Rule45, Sec.5)
Note:
ReviewunderRule45isnotamatterofrigh
tbutofsoundjudicialdiscretion,granted
onlywhentherearespecialandimportant
reasonstherefor. Refer to Rule 45,
Sec.6.(Riguera2013).
Rule 45 is applicable to both civil and
criminal cases

Appeal By Certiorari
Rule 45
Mode of appeal

Special c

Seeks to review final judgments or final order

Directed
matters

Raises only questions of law

Raises q

Note:
Proofofserviceofacopyofthepetitiononth
elowercourtconcernedandontheadvers

167

168
rywrit

Filed within 15 days from notice of judgment


or final order appealed from

sorpro
cesses
,wheth

Does not require


reconsideration

prior

motion

erorno

for

ttheya
reinai
dofitsa

Stays judgment appealed from

ppellat

Appellant appellee are the original parties

ejuris
diction
,

Filed with the SC

6. Exclus
iveorig
inaljur

RULE 46
ORIGINAL CASES

isdicti
onover
action

Section 1. Title of cases.


In all cases originally filed in the Court of
Appeaks, the party instituting the action
shall be called the petitionr and the
opposing party shall be called the
respondent.

sforan
nulme
ntofju
dgmen
tsofRT
C

Section 2. To what actions applicable.


General
Rule:
UnderBP
Blg.129,theCAhasoriginaljurisdictiontoiss
ue:
1. Writso

Exceptions:
1. Asothe
rwisep
rovide

fmand

d,

amus,

2. Theact

2. Prohib

ionsfor

ition,
3. Certior

annul
mentof

ari,an

judgm

entsha

4. Quow

llbegov

arrant

ernedb

o,and

yRule4

5. Auxilia

7,

3. Forcer
tiorari,
prohib
itiona
ndma
ndam
usbyR
ule65,
and
4. Quow
arrant
obyRul
e66.
(Sec.2)
Note:

Petitionforhabeascorpus

havebeenexcludedfromthecoverageofthe
presentrevised
Rulesincetheyareactuallyspecialproceed
ingsandthecorresponding
proceduralrulesgoverning
thesameareprovidedforintheRulesonspe
cialproceedingsandinRule41,Sec.3(Rega
lado,10thEd.)
Section 3.Contents and Filing of
Petition; Effect of Non- Compliance.

Contents
1. The full names and actual addresses
of all the petitioners and respondents;
2. A concise statement of the matters
involved;
3. The factual background of the case,
and;
4. The grounds relied upon for the relief
prayed for
In actions filed under Rule 65, the
petition shall further indicate the
material dates showing:

1. When notice of the judgment or final


order or resolution subject thereof
was received;
2. When a motion for new trial or
reconsideration, if any, was filed, and;
3. When notice of the denial thereof was
received (Circ. No. 39-98).
Filing
1. Filed in seven (7) clearly legible copies;
Note: This has been amended in view of
A.M. No. 11-9-4-SC, Efficient Use of
Paper Rule, effective January 1, 2013.
Sec. 5. Copies to be filed.
Unless
otherwise directed by the court, the
number of court- bound papers that a
party is required or desires to file shall be
as follows:
a. SC Division: one original (properly
marked) and four copies and two sets
of annexes (one attached to the
original and an extra copy);
b. SC en banc: ten additional copies and
two sets of annexes (one attached to
the original and an extra copy)
c. CA: one original (properly marked)
and two copies with their annexes
d. CTA Division: one original (properly
marked) and two copies with annexes
e. CTA en banc: one original (properly
marked) and eight copies with
annexes
f. Other courts: one original (properly
marked) with the stated annexes
attached to it
2. Together with proof of service thereof
on the respondent;
3. With the original copy intended for the
court indicated as such by the
petitioner, and;
4. Shall be accompanied by a clearly
legible duplicate original or certified
true copy of the judgment, order,
resolution, or ruling subject thereof,

169

170
such material portions of the record
as referred to therein, and other
documents relevant or pertinent
thereto.
5. Petitioner Shall Submit Certification
Against Forum Shopping. (Rule 7,
Sec.5.)
The certification shall be accomplished
by:
1. The proper clerk of court or his duly
authorized representative, or;
2. By the proper officer of the court,
tribunal, agency, or office involved, or
by his duly authorized representative.
The other requisite number of copies of
the petition shall be accompanied by
clearly legible plain copies of all
documents attached to the original.
Certification Against Forum Shopping
The petitioner shall also submit:
1. a sworn certification that he has not
theretofore commenced any other action
involving the same issues in the SC, CA
or different divisions thereof, or any other
tribunal or agency;
2. If there is such other action or
proceeding, he must state the status of
the same; and
3. if he should thereafter learn that a
similar action or proceeding has been
filed or is pending before the SC, CA, or
different divisions thereof, or any other
tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within
five (5) days therefrom.
Note:
1. The original copy of the petition
intended for the court shall be marked or
indicated as such, since, among others, it
must be accompanied by a clearly legible
duplicate original or certified true copy of

the adjudicatory issuance complained of,


whereas:
a. The
other
copies
may
be
accompanied by only plain copies
thereof.
b. If the original copy of the petition
intended
for
the
court
is
accompanied by only plain copies
of said documents, the same may
be dismissed outright. (Regalado,
10th Ed.)
General Rule: The lack of certification
against form shopping is generally not
curable by the submission thereof after
the filing of a petition.
Exception: In exceptional circumstances,
however, such as the filing of the
certification a day after but within the
reglementary period for filing such
petition, the belated filing was allowed as
a substantial compliance.
Note: While the filing of certification is
mandatory, still the requirement must not
be interpreted too literally (Regalado, 10th
Ed., citing Shipside, Inc. v CA, GR
No.143377, 2001).
CERTIFIED TRUE COPY
The certified true copy shall be such other
copy furnished to a party at his instance
or in his behalf, by the authorized officers
or representatives of the issuing entity.
1. It must comply with all the
regulations therefor of the issuing
entity and
2. It is the authenticated original of such
certified true copy, and
3. It should not be a mere Xerox copy
thereof,
4. It shall be attached as an annex to the
petition or other initiatory pleading
(Regalado, 10th Ed., citing NYK
International v NLRC, GR No. 146267,
2003).

Effect of Failure to File Comment(Sec.


7)
The case may be decided on the basis of
the record, without prejudice to any
disciplinary action which the court may
take against the disobedient party.

RULE 47
ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
RESOLUTIONS.
ANNULMENT OF JUDGMENT
A remedy in law independent of the case
where the judgment sought to be
annulled was rendered.
A person who is not a party to the
judgment may sue for its annulment
provided he can prove that the same was:
1. Obtained
through
fraud
or
collusion; and
2. Would
be
adversely
affected
thereby.
An action for annulment of judgment may
be availed of even if the judgment to be
annulled had already been fully executed
or implemented. (Regalado, 10th Ed.,
citing Isalmic DaWah Council of the Phil. v
CA, GR No.80892, 1989).
Purpose:
To have the final and executed judgment
set aside so that there will be renewal of
litigation.

Section 1: Coverage
This rule shall govern the annulment by
the Court of Appeals of judgments or final
orders and resolutions in civil actions of
RTC for which the ordinary remedies of
new trial, appeal, petition for relief or
other appropriate remedies are no longer

available through
petitioner.

no

fault

of

the

Section 2: Grounds for Annulment of


Judgment of RTC in Civil Cases
1. Lack of jurisdiction; and
2. Extrinsic fraud.
However, extrinsic fraud is not
available as a ground if availed of
earlier in a motion for new trial or
petition for relief
REMEDY UNDER RULE 47 TO BE
AVAILABLE
The petitioner must have failed, with
sufficient justification, to either:
1. Move
for
new
trial
or
reconsideration;
2. Appeal from the judgment or final
order;
3. File a petition for relief against the
judgment or final order; or
4. Take other appropriate remedies
assailing the questioned judgment
or final order
Note: If he failed to avail of those
remedies without sufficient justification,
he cannot resort to the action for
annulment provided in this Rule,
otherwise he would benefit from his own
inaction or negligence (Regalado, 10th Ed.)
Section 3: Period to File Action
1. For extrinsic fraud within four years
from discovery;
2. Lack of jurisdiction
a. Same period for annulment of
contracts on that ground. Refer to
Art. 1371, NCC.
b. Also, the time when the period
starts to run (Regalado, 10th Ed.);
must be filed before action is
barred by estoppels by laches.
Where to File
Under BP Blg. 129:

171

172
1. CA has exclusive original jurisdiction
in actions to annul judgment of RTC
(Sec. 9[2]) and
2. RTC retains their jurisdiction to annul
judgments of inferior courts in the
region (Sec. 19[6]; Regalado, 10th Ed.)
Section 7: Effects of Judgment
1. Set aside the questioned judgment or
final order and render the same null
and void, without prejudice to the
refilling of the original action in the
proper court.
2. Where the judgment or final order or
resolution is set aside on the ground
of extrinsic fraud, the court may on
motion order the trial court to try the
case as if a timely motion for new trial
had been granted therein.
3. The judgment may include the award
of damages, attorneys fees and other
relief. (Sec.9)
Section 8: Suspension of Prescriptive
Period.
Prescriptive period for re-filing the
original action is suspended unless the
extrinsic fraud is attributable to the
plaintiff in the original action.
Collateral Attacks of Judgment
A collateral or incidental attack is made
when, in another action to obtain a
different relief, an attack on the judgment
is made as an incident in said action.
This is proper only when it is patent that
the court which rendered such judgment
had no jurisdiction.

RULE 48
PRELIMINARY CONFERENCE
Purposes:
1. To consider the possibility of
amicable settlement except when
the case is not allowed by law to

be compromised;
2. To define, simplify and clarify the
issues for determination;
3. To formulate stipulations of facts
and admission of documentary
exhibits, limit the number of
witness to be presented;
4. To take up such other matters
which may aid the court in the
prompt disposition of the case.
Preliminary Conference may be availed of
not only in original actions but also in
cases on appeal wherein a new trial was
granted on the ground of newly
discovered evidence.
Failure of the appellant to appear at the
preliminary conference is a ground to
dismiss the appeal. (Sec. 1[h], Rule 50 and
Sec. 5[e], Rule 56)
Rule 48 is applicable to the SC in original
and appealed cases (Secs. 2 and 4, Rule
56).
Binding Effect of the Results of the
Conference (Sec.3)
General rule: The resolution embodying
all the actions taken therein, the
stipulations and admissions made, and
the issues defined shall control the
subsequent proceedings in the case.
Exception: If within 5 days from notice
thereof, any party shall satisfactorily
show valid cause why the same should
not be followed.

RULE 49
ORAL ARGUMENT
Section 1: When Allowed
The court motu proprio or upon motion of

a party, the court may hear the parties in


oral argument on the merits of a case, or
on any material incident in connection
therewith.
No hearing or oral argument for motions.
General rule: Motions shall not be set for
hearing (Sec.3)Exception: Unless the
court otherwise directs, no hearing or oral
argument shall be allowed in support
thereof. (Thus, motions filed in the CA
need not contain a notice of hearing
anymore)
Period to Object The adverse may file
objections to the motion within five (5)
days from service, upon the expiration of
which such motion shall be deemed
submitted for resolution.

RULE 50
DISMISSAL OF APPEAL
Section 1: Grounds for Dismissal of
appeal by the Court of Appeals.
1. Failure
to
file
within
the
reglementary period;
2. Failure to file the notice of appeal
or record on appeal within the
period;
3. Failure of the appellant to pay the
docket and other lawful fees;
4. Unauthorized
alterations,
omissions, or additions in the
approved record on appeal;
5. Failure of the appellant to serve
and file the required number of
copies
of
his
brief
or
memorandum within the time
provided;
6. Absence of specific assignment of
errors in appellants brief or page
references to the record;
7. Failure of the appellant to take
necessary steps for the completion

or correction of the record within


the time limited by the order;
8. Failure of appellant to appear at
the preliminary conference or to
comply with orders, circulars, or
directives of the court without
justifiable cause
9. Judgment or order appealed from
is not appealable.
Section 2: Dismissal of Improper
Appeal to the Court of Appeals.
No transfer of appeals, erroneously taken
to it or to the CA, whichever of these
tribunals has appropriate appellate
jurisdiction, will be allowed.
Elevating such appeal by the wrong mode
of appeal shall be a ground for dismissal
(Regalado, 2005).
A resolution of the CA dismissing the
appeal and remanding the case to the
trial court for further proceedings is
merely interlocutory, hence a motion for
its reconsideration filed a year later may
be entertained and granted
Section 3: Withdrawal of Appeal.
1. As a matter of right at any time
before the filing of the apellees
brief;
2. In the discretion of the court.
Note: CA may dismiss the appeal outright
even without motion.

RULE 51
JUDGMENT
Section
1.
When
case
deemed
submitted for judgment
The new provisions in this section are
intended to clarify and provide specific
rules on when a case is deemed
submitted for judgment, depending in
whether what is involved is an ordinary
appeal, petition for review, or an original

173

174
action, and whether or not a hearing was
conducted by the appellate court.
The determination of the date of
submission of the case is made doubly
important by the fact that under the
Constitution, such date is the reckoning
point for the periods for deciding or
resolving the case or matter, and which
periods are now mandatory in nature.
(Regalado, 10thEd.)

writing of the decision.


Section 3: Quorum and Voting in the
Court
For deliberation: participation of all 3
justices of a division.
For pronouncement of judgment or
final resolution: Unanimous vote of all 3
Justices of a division.

CASE DEEMED SUBMITTED


If FOR
the JUDGMENT
3 judges do not reach a
unanimous vote:
1.Where no hearing on the merits of the
main
is held
1. case
The clerk
shall enter the votes of the
pleading,
brief,Justices
or memorandum
required by
dissenting
in the record.
the Rules or by the court itself, or the
2. TheofChairman
division shall
expiration
the period of
for the
its filing.
refer the case, together with the minutes
of thesuch
deliberation,
the Presiding
2.Where
hearing isto held
A. IN ORDINARY APPEALS
Justice. or upon filing of the last pleading
termination
or memorandum as may be required or
3. The Presiding
Justice
shallcourt,
designate
2
permitted
to be filed
by the
or the
other
Justices
chosen
by
raffle,
forming
a
expiration of the period for its filing.
special division of 5 Justices.

B. IN ORIGINAL ACTIONS AND


PETITIONS FOR REVIEW

1. Where no comment is filed upon the


4. Participation of all 5 justices of a
e
special division.
2.
5. The concurrence of a majority of such
of the
last pleading
permitted
special
division required
shall be or
required
for to
thebe
filedpronouncement
by the court, of
or athejudgment
expiration
of
the
or final
period
for
its
filing.
resolution.
3. Section 5: Form of Decision
main case is held
upon
the decision
filing of
the resolution
last pleading
Every
or final
of theor
memorandum
as
may
be
required
or
permitted
court in appealed cases shall clearly and
to be
filed by the
court,
the expiration
the
distinctly
state
the or
findings
of fact of
and
period
for
its
filing.
conclusions of law on which it is based,

Section 2: By Whom Rendered


Judgment shall be rendered by the
members of the court who participated in
the deliberation on the merits of the case
before its assignment to a member for the

which may be contained in the decision or


final resolution itself, or adopted from
those set forth in the decision, order or
resolution appealed from.
Note however, that the requirement for the
statement of facts and the law, as

provided by the Constitution, B.P. 129


and the foregoing section, refers to a
decision or final resolution. The same
does not apply to Minute Resolutions
since these usually dispose of the case
not on its merits but on procedural or
technical considerations (Regalado, 2005).
Section 9: Promulgation and Notice of
Judgment
After judgment or final resolution of the
CA and dissenting or separate opinions if
any, are signed by the Justices taking
part, they shall be delivered for filing to
the clerk who shall indicate thereon the
date of promulgation and cause true
copies to be served upon parties or
counsel.
Section 10: Entry of Judgment and
Final Resolutions
The date when judgment or final
resolution becomes executory shall be
deemed as date of entry.
NOTE:
Memorandum
permitted in the CA.

decisions

are

Execution of Judgment (See also S39)


The motion for execution of judgment may
only be filed on the proper court of its
entry. The writ may be sought and is the
issued by the court from which the action
originated, which is the court of origin or
a quo.
Dismissals of Action without Trial
which are considered Dismissal on the
Merits
1. Two dismissal rule under Sec. 1,
Rule 17.
2. Dismissal for failure to prosecute,
to appear at trial, or to comply
with rules or order of the court
under Sec. 3, Rule 17 and
operates as adjudication on the
merits unless otherwise ordered

by the court.
3. Judgment on the pleadings,
summary judgment, judgment by
confession,
judgment
by
compromise
operates
as
adjudication on the merits.
4. Dismissal on the ground of noncompliance with Circular No. 1-88
had the effect of resolving the
issues raised therein.

RULE 52
MOTION FOR
RECONSIDERATION
Section 1: Period for Filing
Within 15 days from notice of judgment or
final resolution with proof of service on
the adverse party.
Section 3: Resolution of Motion
In the Court of Appeals, a motion for
reconsideration shall be resolved within
90 days from the date when the court
declares it submitted for resolution.
Section 4: Stay of Execution
Pendency of a motion for reconsideration
stays the execution of judgment unless
the court, for good reasons, directs
otherwise.

RULE 53
NEW TRIAL
Section 1: Period for Filing
Any time after the appeal from the lower
court has been perfected AND before the
CA loses jurisdiction over the case.
Ground:
Newly discovered evidence which:
a. could not have been discovered prior to

175

176
the trial in the court below by the exercise
of due diligence, and;
b. which is of such character as would
probably change the result.
Motion must be accompanied by affidavits
of merit. Same procedure followed as in
new trials before the RTC.

RULE 54
INTERNAL BUSINESS
Section 1: Distribution of cases among
divisions
Rule: Cases of the CA are allotted among
different divisions.
When CA should sit en banc:
a. To make proper orders or rules to
govern the allotment of cases among
divisions;
b.
Tomakerulesontheconstitutionofdivisions;
c. To make rules on the regular rotation of
Justices;
d. To make rules
vacancies; and

on

the

filling

of

majority of the members of those present;


2. Division affirmative votes of 3
members.

RULE 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
Judgments and final resolutions of the
court shall be published in the Official
Gazette and in the Reports officialy
authorized by the court. (Philippine
Reports/SCRA).

RULE 56
PROCEDURE IN THE
SUPREME COURT
Section 1: Original Cases
1.Petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
writ of amparo;
2.Disciplinary proceedings against judges
and attorneys;
3.Cases affecting ambassadors, other
public ministers, and consuls.

e. To make rules on other matters relating


to the business of the court.

NOTE: Exclusive list

Section 2: Quorum of the Court


What constitutes quorum:
1.En banc majority of actual members
of the court shall constitute a quorum;
2.Division 3 members shall constitute a
quorum.

Section 3: Appealed CasesMode of


appeal
An appeal to SC can only be taken by
petition for review on certiorari, except in
criminal cases where the penalty imposed
is death, reclusion perpetua, or life
imprisonment.

Number of affirmative votes necessary


to
pass
a
resolution/pronounce
judgment:
1. En banc affirmative votes of the

Section 5: Grounds for dismissal of


appeal by SC.
Failure to take the appeal within the
reglementary period;

2.
3.

4.

5.

6.
7.

Lack of merit in the petition;


Failure to pay the requisite docket fee and
other lawful fees or to make deposit for
costs;
Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition;
Failure to comply with any circular,
directive or order of the SC without
justifiable cause;
Error in choice or mode of appeal;
Case is not appealable to the SC.
NOTE: It is discretionary upon the SC
(and the CA) to call for preliminary
conference similar to pre- trial.
General rule: Appeal to SC by notice of
appeal shall be dismissed.
Exception: In criminal cases where the
penalty imposed is life imprisonment, or
when a lesser penalty is imposed but
involving offenses committed on the same
occasion or arising out of the same
occurrence which gave rise to the more
serious offense for which the penalty of
death or life imprisonment is imposed
(Section 3, Rule 122)
NOTE: Appeal by certiorari from RTC to
SC submitting issues of fact may be
referred to the CA for decision or
appropriate action, without prejudice to
considerations on whether or not to give
due course to the appeal as provided in
Rule 45.
Section 7: Procedure if Opinion is
Equally Divided
Where the Court en banc is equally
divided in opinion, or the necessary
majority cannot be had, the case shall
again be deliberated on, and if after such
deliberation no decision is reached, the
original action commenced in the court
shall be dismissed; in appealed cases, the

judgment or order appealed from shall


stand affirmed; and on all incidental
matters, the petition or motion shall be
denied.

PROVISIONAL REMEDIES
Nature of Provisional Remedies
These are temporary, auxiliary and
ancillary remedies available to the litigant
for the protection and the preservation of
his rights while the main action is
pending. They are writs and processes
which are not main actions and they
presuppose the existence of a principal
action.
Provisional
means
temporary,
preliminary or tentative (Tan v nAdre, 450
SCRA 145).
Purposes:
1. To preserve or protect the rights or
interests of litigants while the
main action is pending.
2. To secure the judgment.
3. To preserve the status quo.
4. To preserve the subject matter of
the action.
KINDS OF PROVISIONAL REMEDIES:
(ARIRS)
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendente lite (Rule 61)
Note: The enumeration is NOT exclusive.
The family court is in the nature of
Provisional Remedies and may grant the
following:
1. Spousal Support
2. Child
Support
of
Common
Children
3. Child Custody
4. Visitation Rights

177

178
5. Hold Departure OrderOrder of
Protection
6. Administration of Community or
Conjugal Property (A.M. No.02-1112-SC Rule on Provisional Orders)
Note: Provisional remedies are also
available in criminal cases pursuant to
Sec. 1, Rule 127 of the Revised Rules of
Criminal Procedure. The provisional
remedies in civil actions, may be availed
of in connection with the civil action
deemed instituted with the criminal
action.
JURISDICTION OVER PROVISIONAL
REMEDIES
1. The court which grants or issues a
provisional remedy is the court which
has jurisdiction over the main action.
2. Even an inferior court may grant a
provisional remedy in an action
pending with it and within its
jurisdiction (Riano. 2009 Ed, p. 532).
3. All inferior courts can grant all
appropriate
provisional
remedies,
including
the
appointment
of
receivers, with the writ of preliminary
injunction being now available in
either forcible entry or unlawful
detainer cases.
Note: The enforcement of said writs do
not require the approval of the Regional
Trial Courts having jurisdiction over the
inferior
courts
issuing
the
same.
(Regalado, 10th Ed.)

RULE 57
PRELIMINARY ATTACHMENT
Preliminary Attachment
1. A provisional remedy issued upon
order of the court where an action is
pending to be levied upon the
property of the defendant therein, the
same to be held by the sheriff as

security for the satisfaction


whatever judgment that might
secured in the said action by
attaching
creditor
against
defendant (Torres v Satsatin,
No.166759, 2009).

of
be
the
the
GR

2. It is a provisional remedy, auxiliary or


incidental to the main action, whereby
the debtors property capable of being
taken under levy and execution is
placed under custody of the law
pending the determination of the
cause, to secure the payment of any
judgment that may be recovered
therein (Davao Light & Power CO. v
CA, GR No. 93262, 1991).
Who May Apply
The plaintiff or defendant who asserts a
counterclaim, a cross-claim or a thirdparty claim may avail of the remedy.
When
to
apply
for
Preliminary
Attachment:
1. At the commencement of the
action or
2. At any time before entry of
judgment.
KINDS OF ATTACHMENTS:
1. Preliminary Attachment attach
the property while the case is
going on, before judgment, or at a
commencement, as security for
the satisfaction of any judgment
that may be recovered
2. Garnishment process in which
money or goods in the hands of a
third person which are due to the
defendant, are attached by the
plaintiff
3. Levy on execution or final
attachment a writ issued by the
court after judgment by which the
property of the judgment obligor is
taken into the custody of the court

for the satisfaction of a final


judgment.
STAGES
OF
A
PRELIMINARY
ATTACHMENT:
1. Filing of the application for issuance
of writ of preliminary attachment in
the form of an affidavit.
2. Court issues the Order granting the
application. The order fixes the
amount of the attachment bond but
does not yet require the sheriff to
attach the property of the person
against whom it is issued. Refer to
Rule 57, Sec. 4.
3. The applicant must thereafter file the
attachment Bond in the amount fixed
by the court.
4. The court issues the Order of
attachment, with the corresponding
writ of attachment, requiring the
sheriff to attach properties of the
adverse party as may be sufficient to
satisfy
the
applicants
demand.
Several writs may be issued at the
same time to the sheriffs of the courts
of different judicial regions.
5. The writ of attachment is enforced by
the sheriff pursuant to Sec. 5 and 7 of
Rule 57.
6. After enforcing the writ, the sheriff
must make a Return thereon to the
court from which the writ is issued.
Refer to Rule 57, Sec. 6.
Note: Jurisdiction over the person of the
defendant is only required in the 5th
stage.
Section 1: Grounds for Issuance Of Writ
Of Attachment.
1. Recovery of specified amount of
money and damages, except moral
or exemplary, where party is about
to depart from the Philippines,
with intent to defraud creditors;

2. Action for money or property


embezzled or for willful violation of
duty by public officers, officers of
corporation, agent, or fiduciary;
3. Recovery of possession of property
(both real and personal) unjustly
detained, when the property is
concealed or disposed of to prevent
its being found or taken;
4. Action against party guilty of fraud
in contracting the debt or
incurring the obligation or in the
performance thereof;
5. Action against party who is
concealing
or
disposing
of
property, or is about to do so, with
intent to defraud creditors;
6. Action against party who is not a
resident of the Philippines, and
cannot be found therein or upon
whom service by publication can
be made.
Note: The grounds are exclusive.
REQUISITES FOR THE ISSUANCE OF
AN ORDER OR WRIT OF PRELIMINARY
ATTACHMENT:
1. The case must be any of those
where Preliminary Attachment is
proper as provided under Rule 57,
Sec. 1.
2. The appellant must file a motion
(ex parte or with notice and
hearing).

3. The appellant must show by


affidavit that:
a. A sufficient cause of action
exists.
b. The case is one of those
mentioned in Sec. 1 hereof.
c. There is no sufficient
security for the claim
sought to be enforced by
the action.

179

180
d. The amount claimed in the
action or value of property
the possession of which
the plaintiff is entitled to
recover, is as much as the
sum for which the order is
granted
above
all
counterclaims. Refer to
Rule 57, Sec. 3.
4. Applicants bond or attachment
bond The attaching party shall
post a bond executed to the
adverse party in the amount fixed
by the court in its order granting
the
issuance
of
the
writ,
conditioned that the applicant will
pay all the costs which may be
adjudged to the adverse party and
all damages which he may sustain
by reason of the attachment, if the
court shall finally adjudge that the
applicant is not entitled thereto.
Refer to Rule 57, Sec. 4.
Note: The AFFIDAVIT and BOND
must be duly filed with the court
before the order issues.

ATTACHMENT LIEN
While the provision of Rule 57 are silent
on the length of time within which an
attachment lien shall continue to subsist
after the rendition of a final judgment,
jurisprudence dictates that the said lien
continues until the debt is paid, or the
sale is had under execution issued on the
judgment or until the judgment is
satisfied, or the attachment discharged or
vacated in the same manner provided by
law(Lim vs. Lazaro 3 July 1995).
EFFECT
OF
INCOMPLETE
ALLEGATIONS IN AFFIDAVIT
The affidavit filed therefor must contain
all the allegations required in Sec. 3 of

this Rule. Failure to do so renders the


writ totally defective, as the judge issuing
the writ acts in excess of jurisdiction
(Regalado, 10th Ed., citing K.O. Glass
Construction Co., Inc. v Valenzuela, GR
No.L-487856, 1982).
Section 2: Issuance and aContents of
the Order of Attachment, Affidavit and
Bond
An order of attachment may be issued
by:
1. Exparteor
2. Maybegrantedupon
motionwithnoticeandhearingbythecou
rtinwhichtheactionispending,orbytheC
AorSC.
Note:
Itmustrequirethesheriffofthecourttoattach
somuchofthepropertyinthePhilippinesofth
epartyagainstwhomitisissued.
Property to be attached:
1.Must not be exempt fromexecution.
2.Must be sufficient
applicants demand.

to

satisfy

the

Unless such party makes a deposit or


gives a bond as hereinafter provided in an
amount equal to that fixed in the
order,which may be the amount sufficient
to satisfy the applicants demand or the
value of the property to be attached as
stated by the applicant,exclusive of costs.
Note: Several writs may be issued at the
same time to the sheriffs of the courts of
different judicial regions.
Applicants bond or attachment bond
The attaching party shall post a bond
executed to the adverse party in the
amount fixed by the court in its order
granting the issuance of the writ,

conditioned that the applicant will pay all


the costs which may be adjudged to the
adverse party and all damages which he
may sustain by reason of the attachment,
if the court shall finally adjudge that the
applicant is not entitled thereto.
Rule on prior or Contemporaneous
Service of Summons
General Rule:No levy on attachment shall
be enforced unless it is preceded or
contemporaneously
accompanied
by
service of summons, together with:
1. A copy of the complaint,
2. Application for attachment,
3. Applicants affidavit,
4. Bond,
5. Order,
6. Writ of attachment,
on the defendant within the Philippines
(Riguera 2013).
While the petition for a writ of preliminary
attachment may be granted and the writ
itself issued before the defendant is
summoned, the writ of attachment cannot
be implemented until jurisdiction over the
person of the defendant is obtained.
(Onate vs. Abrogar 23 February 1995)
The attachment of properties before the
service of summons on the defendant is
invalid, even though the court later
acquires jurisdiction over the defendant.
At the very least, then, the writ of
attachment
must
be
served
simultaneously with the service of
summons before the writ may be
enforced. (Onate vs. Abrogar 23 February
1995)
Exception:
1. The summons could not be served
personally or by substituted
service despite diligent efforts

2. The defendant is a resident of the


Philippines Temporarily absent
therefrom
3. Defendant is a Non-resident of the
Philippines.
4. The action is in rem or quasi in
rem.
Section 5: Manner of Attaching Real
and Personal Property; When Property
attached is claim by third person
Thesheriffenforcingthewritshall:
1. Without delay and with all
reasonable diligence attach,
2. To await judgment and execution
in the action,
3. Only so much of the property in
the Philippines of the party
against whom the writ is issued,
4. Not exempt
from execution,as
may be sufficientto satisfy the
applicantsdemand.
Manner of Attachment:
1. Realproperty,orgrowingcropsthere
on, oranyinteresttherein:
a. Byfilingwiththeregistryofde
edsacopyoftheorderofattach
ment,togetherwithadescrip
tionofthepropertyattacheda
nd
n oticethat
it
is
attached,and
b. By
leavingacopyofsuchorder,de
scription,andnoticewiththe
occupantoftheproperty.
Note:
Eveniftherealpropertyisnotregisteredwitht
heregister
ofdeeds,theattachmentmayberegisteredpu
rsuanttoSec.113[d],PDNo.1529.
2. Personalpropertycapableofmanual
delivery

181

182
a. Bytakingandsafelykeepingit
inhiscustody,
b. Afterissuance
ofcorrespondingreceiptther
efor.
3. Stocksorsharesinacompany
a. Byleavingwiththepresident
ormanagingagentthereof,
b. Acopyofthewrit,and
n oticestatingthatthe
stockorinterestofthepartya
gainstwhomtheattachmenti
sissuedisattachedinpursua
ntofsuchwrit.
4. Debtsandcredits,andotherpersonal
propertynotcapableofmanualdelive
ry
Debtsand
credits,includingbankdeposits,fina
ncialinterest,royalties,commission
sandother
personal
propertynotcapableofmanualdelive
ry,areattached:
a. Byleavingwiththepersonowi
ngsuchdebts,orhavinginhis
possessionorunderhiscontr
ol,suchcreditsorotherperso
nalproperty,orwithhisagent
,acopyofthewrit,andnoticet
hatthedebtsowingbyhimtot
hepartyagainstwhomattach
mentisissued,andthecredit
sandotherpersonalproperty
inhispossession,orunderhi
scontrol,belongingtosaidpa
rty,areattachedinpursuanc
eofthewrit.
4. Interestinestateofthedecedent
a. Byservingtheexecutororad
ministratororotherpersonal
representativeofthedeceden
twithacopyofthewritandn ot
icethatsaidinterestisattach
ed.

b. Acopyofthewritand
noticeshallalsobefiledinthe
officeoftheclerkofthecourtin
whichsaidestateisbeingsettl
edandserveupontheheir,leg
ateeordeviseeconcerned.
RemedyWhenWrit
ofAttachmentisImproperlyorIrregularly
Enforced
Filea
motiontodischargetheattachmentbasedon
Sec.13(Riguera2013,citingOnatevAbrogar,
G.R.No.107303,1995).
Note:
Apropertyincustodialegismaybeattached.I
nsuchcase:
1. Acopyofthewritofattachmentshallbefile
dwith
thepropercourtorquasijudicialagency,and
2 . Noticeoftheattachmentserveduponthec
ustodianofsuchproperty(Riguera2013,
citingSec.7).
Section
14:
Proceedings
where
property is claimed by third person
ThesameasthatinSec.16,Rule39;andSec.7
,Rule 61.
Procedure:
1. The third-party shall makean affidavit
showinghis
titleto
or
right
ofpossession overtheproperty.
2. Heshallservetheaffidavituponthelevyin
g
officer,files
abondapprovedbythecourtto
indemnifythirdpartyclaimant,notthesherifforofficer.
3. Amountofbondshouldbenotlessthanval
ueofpropertyleviedon.The
sheriffshallNOTbeliablefordamagesifbo
ndisfiled.
4. Aclaimfordamages
forthetakingorkeeping
ofthepropertymaybeenforcedbythethir
d-partyagainstthebond

providedhefilesanactionwithin120days
fromthefilingofthebond.
RemedyWhenThirdPartyClaimantisUnabletoRecoverthePro
perty
Fileaseparateactiontorecover possession.
Remedy When Third-Party Claimant is
Unable to Recover the Property
The remedy is to file a separate action to
recover possession.
Note: Nothing shall prevent the thirdparty claimant from vindicating his claim
to the property in the same or separate
action. Refer to Rule 39, Sec. 16 (Riguera
2013).
Section 12: Discharge of Attachment
and the Couner-bond.
Remedies Available to a Party against
Whom a Writ Is Issued or Enforced
1. He may discharge a writ of
attachment
which
has been
enforced
or
prevent
its
enforcement altogether if:
a. He makes a cash deposit or
files a counter-bond executed
to the attaching party
b. With the clerk of court where
the application is made,
c. In an amount equal to that
fixed by the court in the order
of attachment,
d. Exclusive of costs.
2. To quash the attachment based on
the following grounds:
a. That it was improperly
issued.(Sec. 13); or
b. That it was improperly
enforced; or
c. That
the
bond
is
insufficient.(Sec. 3)

3. He may move to discharge because


there
was
no
ground
for
attachment. (Sec. 1)
4. He may move to discharge on the
ground that the attachment is
excessive, but the discharge shall
be limited to the excess. (Sec. 13)
5. He may move to discharge on the
ground that the property attached
is exempt from execution, hence
exempt
from
preliminary
attachment. (Secs. 2 and 5)
6. The judgment is rendered against
the attaching creditor.(Sec.19 )
(Regalado 10th Ed.)
Section 20: Claim for Damages on
Account of Improper, Irregular or
Excessive Attachment.
An application for damages may be filed
by a party against whom the attachment
was issued on account of improper,
irregular or excessive attachment.
Q: May damages be claimed by a party
prejudiced by a wrongful attachment
even if the judgment is adverse to
him?
A: Yes, damages may be claimed by a
party
prejudiced
by
a
wrongful
attachment even if the judgment is
adverse to him. This is authorized by the
Rules. A claim, for damages may be made
on account of improper, irregular or
excessive attachment, which shall be
heard with notice to the adverse party
and his surety or sureties. (Javellana v. D.
O. Plaza Enterprises Inc., 32 SCRA 281)
When to apply for damages against the
attachment bond
1. Before trial;
2. Before appeal is perfected;
3. Before the judgment becomes
executory;

183

184
4. During the pendency of the appeal
for damages sustained during
such appeal, if the judgment of
the appellate court is favorable to
the party against whom the
attachment was issued and before
said judgment becomes executory.
ATTACHMENT
COUNTER-BOND
BOND
It is posted by the It is posted by the
attaching
party party
against
or the applicant.
whom
attachment
is
issued.
The purpose of
the
applicants
bond is to obtain
a
writ
of
preliminary
attachment.
This bond shall
answer for all the
costs which may
be adjudged to
the adverse party
and all damages
which he may
sustain
on
account of the
attachment, if the
court shall finally
adjudge that the
applicant is not
entitled.

It aims to prevent
or discharge a
preliminary
attachment.

The liability of
surety under the
applicants bond
must be enforced
by an application
after motion with
due notice has
been given to the
applicant and the
sureties and after

The sureties on
the counter-bond
are
charged
under
the
judgment
and
their liability may
be recovered after
notice
and
summary hearing
in
the
same

It secures the
payment of the
judgment which
the
applicant
may be entitled
to.

proper hearing.

action.

Section 15: Satisfaction of Judgment


out of Property attached
a. Ifjudgmentberecoveredbytheattach
ingpartyandexecutionissuethereon
,thesheriffmaycausethejudgmentto
besatisfied
outofthepropertyattached,ifitbesu
fficientforthatpurposeinthefollowin
gmanner;
b. By paying to thejudgmentobligee
the
proceedsofallsalesofperishableorot
her
propertysoldinpursuanceoftheorde
rofthecourt,orsomuchas
shallbenecessary
tosatisfythejudgment;
c. Ifanybalanceremainsdue,bysellings
omuch
oftheproperty,realorpersonal,asma
ybenecessarytosatisfythebalance,if
enoughforthatpurposeremaininthe
sheriff'shands,orinthoseoftheclerk
ofthecourt;
d. Bycollectingfromallpersonshavingi
ntheirpossessioncreditsbelonging
tothejudgmentobligor,orowingdebt
stothelatteratthetimeoftheattachm
entofsuch
creditsordebts,theamountofsuchcr
editsanddebtsasdeterminebytheco
urtintheaction,and
statedinthejudgment,andpayingth
eproceedsofsuchcollectionovertoth
ejudgmentoblige.
Note:
Thesheriffshall:
1. Makeareturninwritingtothecourtofhis
proceedingsunderthissection;and
2. Furnishthepartieswithcopies.

RULE 58
PRELIMINARY INJUNCTION

Preliminary Injunction
Anorderrequiringapartyoracourt,agencyor
a
persontorefrainfromaparticularactoracts.I
tmaybegrantedatanystageofanactionorpro
ceedingpriortothejudgmentorfinalorder.
A writ of preliminary injunction is an
ancillary or preventive remedy that may
only be resorted to by a litigant to protect
or preserve his rights or interests and for
no other purpose during the pendency of
the principal action. The dismissal of the
principal action thus results in the denial
of the prayer for the issuance of the writ
(DFA vs. Falcon, 1 September 2010)
A writ of preliminary injunction may
be issued upon the concurrence of the
following essential requisites, to wit:
a. the invasion of right sought to be
protected
is
material
and
substantial;
b. the right of the complainant is
clear and unmistakable; and
c. there is an urgent and paramount
necessity for the writ to prevent
serious damage.
While a clear showing of the right is
necessary, its existence need not be
conclusively established. Hence, to be
entitled to the writ, it is sufficient that the
complainant shows that he has an
ostensible right to the final relief prayed
for in his complaint (Lukand vs Pagbiilao
Development Corp. 10 March 2014).
PreliminaryMandatoryInjunction
Anorderrequiringapartyoracourt,agencyor
a persontoperformaparticularactoracts.
Itmaybegrantedatanystageofanactionorpr
oceedingpriortothejudgmentorfinalorder.
TemporaryRestrainingOrder

An order to maintainthestatus quountil


the
determinationoftheprayerforawritofprelimi
naryinjunction
ObjectoftheIssuanceofPreliminaryInjun
ction
Topreservethestatusquo
untilthemeritsofthecasecanbeheard.
Status Quo
The last actual peaceable uncontested
status that preceded the controversy.
Q: Differentiate a TRO from a status
quo order (BAR 2006)
A: A status quo order (SQO) is more in
the nature of a cease and desist order,
since it does not direct the doing or
undoing of acts, as in the case of
prohibitory or mandatory injunctive relief.
A TRO is only good for 20 days if issued
by the RTC; 60 days if issued by the CA;
until further notice if issued by the SC.
The SQO is without any prescriptive
period and may be issued without a bond.
A TRO dies a natural death after the
allowable period; the SQO does not.
A TRO is provisional. SQO lasts until
revoked. A TRO is not extendible, but the
SQO may be subject to agreement of the
parties.
PRELIMINARY INJUNCTION

TE
MP
OR
ARY
RES
TRA
INI
NG
OR
DE

185

186

An order granted at any stage of


an action or proceeding prior to
the judgment, requiring a person,
a party or a court or agency or to
refrain from or to perform
particular acts.

A writ of preliminary injunction


cannot be issued ex parte. There
must be notice and hearing.

R
An
orde
r to
mai
ntai
n
the
stat
us
quo
unti
l the
dete
rmi
nati
on
of
the
pray
er
for a
writ
of
preli
min
ary
inju
ncti
on.
It
may
be
gra
nted
ex
part
e if
it
shal
l
app
ear
that
grea
t or
irre
par

able
inju
ry
wou
ld
resu
lt to
the
appl
ican
t
befo
re
the
mat
ter
can
be
hear
d on
noti
ce.
It may exceed 20 days.
Note:
WPI
issued
bytrial
court,CA,SBorCTAagainstalowerc
ourt,board,officer,
orquasijudicialagencyshalldecidethemain
caseorpetitionwithin6monthsfrom
theissuanceofthewrit.
(AsamendedbyA.M.No.07-7-12SC, December12,2007.)

It
doe
s
not
exce
ed
20
days
.
Note
s:
1.
TRO
issu
ed
by
CA
or a
me
mbe
r,
effe
ctiv
e for

60
days
.
2.
TRO
issu
ed
by
SC
or a
me
mbe
r,
effe
ctiv
e
unti
l
furt
her
orde
rs.
INJUNCTION
Generally directed
against any person
not
exercising
judicial,
quasijudicial
or
ministerial
functions.
Does not involve
the jurisdiction of
the court

PROHIBITION
Directed against a
court, tribunal or
person
exercising
judicial powers.

May be main action


itself
or
just
provisional remedy
in the main action.

Always
action.

May be on the
ground that the
court
against
whom the writ is
sought
acted
without
or
in
excess
of
jurisdiction.
a

1. Invasion of the right is material


and substantial;
2. Right of the complainant is clear
and unmistakable; and
3. Urgent and paramount necessity
for the writ to prevent serious
damages.
There must be a right in esse or the
existence of a right to be protected and
the act against which the injunction is to
be directed is a violation of such right
(Idolor v. Court of Appeals, G.R. No.
141853, 2001, Gustilo v. Real, A.M. No.
MTJ-00-1250, 2001).
Injunction may be an action itself,
brought specifically to restrain or
command the performance of an act. As
an action, it is immediately executory
under Sec. 4, Rule 39.
Kinds
1.
2.
3.
4.

of Injunction
Preliminary Injunction
Final Injunction
Prohibitory Injunction
Mandatory Injunction

Preliminary
Injunction
The writ secured
before the finality
of the judgment.

Final Injunction
Issued
as
a
judgment making
the
injunction
permanent.

main

Requisites:

187

188
Prohibitory
Injunction
To prevent a person
from
the
performance of a
particular act.

Mandatory
Injunction
To require a person
to
perform
a
particular act.

Section 2: Who may grant preliminary


injunction:
1. The court where the action is pending
2. Court of Appeals, or any of its justices
3. Supreme Court, or any of its justices

The act has not yet


been performed.

The act has already


been
performed
and this act has
violated the rights
of another.

Section 3: Grounds for Issuance of


Preliminary Injunction
1. Plaintiff is entitled to relief sought
which consists in restraining or
requiring the performance of acts
(latter is preliminary mandatory
injunction);
2. The commission of acts or nonperformance during pendency of
litigation
would
probably
work
injustice to the plaintiff;
3. Defendant is doing or about to do an
act
violating
plaintiffs
rights
respecting the subject of the action
and tending to render judgment
ineffectual.

The status quo is


preserved.

The status quo is


restored.

Section 1: When Writ May Be Issued.


Thewritmaybegrantedatanystageofthe
proceeding
prior
to
thejudgmentorfinalorder

Notes:
1. Independent action merely to obtain
preliminary injunction is not allowed.
2. Substantive relief must be sought as
well as a clear and positive right
calling for judicial protection must be
shown.
Requirements for the Grant of a
Preliminary Injunction or TRO:
1. Verified application shows the
facts entitling the applicant to the
relief demanded.
2. Bond unless exempted by the
court.

The applicant files a bond with the


court where
the
action or
proceeding is pending in an
amount to be fixed by the court to
the effect that the applicant will
pay to such party or person all
damages which he may sustain by
reason of the injunction or TRO.
If the court should finally decide
that the applicant was not entitled
thereto.
Upon approval of the requisite
bond, a writ of preliminary
injunction shall be issued.
3. Notice of Raffle When an
application
for
a
writ
of
preliminary injunction or TRO is
included in a complaint or any
initiatory pleading.
If filed in a multiple-sala court,
shall be raffled only after notice to
and in the presence of the adverse
party or the person to be enjoined.
In any event, notice shall be
preceded, or contemporaneously
accompanied by:

a. Service of summons,
b. Together with a copy of the
complaint
or
initiatory
pleading;
c. The applicants affidavit
and
d. Bond, upon the adverse
party in the Philippines.
Prior or contemporaneous service of
summons shall not apply in the following
cases:
a. The summons could not be served
personally or by substituted
service despite diligent efforts.
b. The defendant is a resident of the
Philippines Temporarily absent
therefrom.
c. Defendant is a Non-resident of the
Philippines.
SUMMARY HEARING
General Rule: For TRO, the application
shall thereafter be acted upon only after
all the parties are heard in a summary
hearing which shall be:
a. Conducted within 24 hours
b. After the sheriffs return of service
and/or the records are received by the
branch
c. Selected by raffle and
d. To which the records shall be
transmitted immediately (Riguera,
2013).
Note: The period within which to conduct
summary hearing is 24 hours after the
records are transmitted to the branch to
which it is raffled. (Riguera 2013, citing
Bagong West Kabulusan 1 Neighborhood
Association v. Lerma, A.M. No. RTJ-051904, 2005).
Exceptions: TRO may be issued ex parte
or without summary hearing:
a. If it shall appear from the facts shown
by affidavits or by the verified
application
that
GREAT
OR

IRREPARABLE INJURY would result


to the applicant before the matter can
be heard on notice, in which case the
court to which the application for
preliminary injunction was made may
issue a TRO ex parte effective for only
20 days from service on the party or
person sought to be enjoined.
The court must order the applicant to
show cause within the 20-day period
why the injunction should not be
granted, and the court shall also
determine whether or not the
preliminary
injunction
shall
be
granted; or
b. If the matter is of EXTREME
URGENCY and the applicant will
suffer
GRAVE
INJUSTICE
AND
IRREPARABLE INJURY, in which case
the executive judge of a multiple-sala
court or the presiding judge of a
single-sala court may issue a TRO ex
parte effective for only 72 hours from
issuance but he shall immediately
comply with the rule on SCAB. The
judge before whom the case is
pending shall conduct a summary
hearing within 72 hours to determine
whether or not the TRO shall be
extended until the application for
preliminary injunction can be heard.
Note:
TRO under exception is
1. Non- extendible while
2. May be extended for 20 days, inclusive
of the initial 72-hour period.
SECTION 5. Duration of A TRO
General
Rule:
Periodnotexceeding20daysfromservicetoth
e partysoughttobeenjoined.
Exceptions:
Ifthematteris:
a. Extremeurgency;and

189

190
b. Theapplicantwill
suffer
graveinjusticeandirreparableinjury
,
Thejudgemayissueexparteatemporaryrest
raining order:
a. Itshallbeeffective foronly72hours;
b. HeshallimmediatelycomplywithSectio
n4regardingserviceofsummonsandacc
ompanyingdocument;and
c. Heshallconductasummaryhearingwith
insaid72hourstodeterminewhetherthe
restrainingordershallbeextendeduntilt
heapplicationforthepreliminaryinjunct
ioncanbeheard.
Section 6: Grounds for objection to or
for the Dissolution of Injunction for
Restraining Order.
1. Application is insufficient;
2. Other grounds upon affidavits of the
party or person enjoined
3. Applicants bond is insufficient. Refer
to Rule 58, Sec. 7
DOCTRINE
OF
COMPARATIVE
INCONVENIENCE OR DAMAGE
The injunction or restraining order may
be denied or dissolved, if it appears after
hearing that although the applicant is
entitled to the injunction or restraining
order, the issuance or continuance
thereof, as the case may be, would cause
irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may
suffer, and the former files a bond in an
amount fixed by the court conditioned
that he will pay all damages which the
applicant may suffer by the denial or the
dissolution
of
the
injunction
or
restraining order.
In relation to RA No. 8975, Ban on
Issuance of TRO or Writ of Injunction
in
cases
involving
Government
Infrastructure Projects

Nocourt,excepttheSupremeCourt,shalliss
ueanytemporaryrestrainingorder,prelimin
aryinjunctionorpreliminarymandatoryinju
nctionagainst
thegovernment,oranyofitssubdivisions,offi
cialsoranypersonorentity,whetherpublicor
privateactingunderthegovernmentdirectio
n,torestrain,prohibitorcompelthefollowing
acts:
a. Acquisition,clearanceanddevelopm
entoftheright-of-wayand/or
siteorlocationofanynationalgovern
mentproject;
b. Biddingorawardingofcontract/proj
ectof the national government
asdefined underSection2hereof;
c. Commencementprosecution,execu
tion,implementation,operationofan
ysuchcontractorproject;
d. Terminationorrescissionofanysuch
contract/project;and
e. The
undertakingorauthorizationofanyo
therlawfulactivitynecessaryforsuch
contract/project.
Thisprohibitionshallapplyinallcases,dispu
tesorcontroversiesinstitutedbyaprivatepar
ty,includingbutnot
limitedtocasesfiledbybiddersorthoseclaimi
ngtohaverightsthroughsuchbiddersinvolvi
ngsuchcontract/project.
Thisprohibitionshallnotapplywhenthe
matterisofextremeurgencyinvolvingaconst
itutionalissue,suchthatunlessatemporary
restrainingorderisissued,graveinjusticean
dirreparableinjurywillarise.
Theapplicantshallfileabond,inanamountto
befixedby
thecourt,whichbondshallaccruein
favor
ofthegovernmentifthecourtshouldfinallyde
cidethattheapplicantwasnotentitledtother
eliefsought.
Ifafterduehearingthecourtfinds
that
theawardofthecontractisnullandvoid,theco

urtmay,ifappropriateunderthecircumstan
ces,awardthecontracttothequalifiedandwi
nningbidderororderarebiddingofthe
same,withoutprejudicetoanyliabilitythatth
eguiltypartymayincurunderexistinglaws.
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO
ATTACHMENT
PRINCIPLE
OF
PRIOR
CONTEMPORARY JURISDICTION
When
an
application
for
a
writofpreliminaryinjunction
or
a
temporary restraining order isincludedin
acomplaintor
anyinitiatorypleading,thecase,iffiledinamu
ltiplesalacourt,shallberaffledonlyafterNOTICEt
o
andINTHEPRESENCEoftheadversepartyor
thepersontobeenjoined. Refer to Rule
58,Sec.4(c).
Thereisdifferenceontheapplicationofthepri
ncipleinpreliminaryattachmentandprelimi
naryinjunction.
Inattachment,theprincipleappliesonlyinth
eimplementationofthewrit,while
inapplications
forinjunctionorTRO,thisprincipleappliesbe
foretheraffleandissuanceofthewritsorTRO.
GeneralRule:PreliminaryInjunctionwillno
tissuetoprotectcontingentorfuturerights;ri
ghtswhicharenotclear.
Exception:Itmayhoweverbeissuedtopreve
ntfuturewrongs
thoughnoright
yethasbeenviolated.
Example:Topreventthehusbandfrominterf
eringwifesmanagementpendingdesignatio
noftheadministrator.

RULE 59
RECEIVERSHIP
Receivership
It is a provisional or ancillary remedy
wherein the court appoints a receiver to
receive and preserve the property or fund
in the litigation pendente lite, when it
does not seem reasonable to the court
that either part should hold it (PrimerReviewer on Remedial Law, Manuel R.
Riguera).
A receiver is a person appointed by the
court in behalf of all the parties to an
action for the purpose of preserving the
property involved in the suit and to
protect the rights of all the parties under
the direction of the court (Mallari v. CA,
G.R. No. L-26467, July 15, 1981).
Before appointing a receiver, courts
should consider:
a. Whether or not the injury
resulting from such appointment
would probably be greater than
the injury ensuing if the status
quo is left undisturbed; and
b. Whether or not the appointment
will imperil the interest of others
whose rights deserve as much a
consideration from the court as
those of the person requesting for
receivership. (Tantano vs. EspinaCaboverde 29 July 2013)
Section 1.Cases When Receiver May Be
Appointed.
The Court may appoint a receiver in the
following cases:
a. Applicant has an Interest in the
property or fund subject of the
proceeding and such property is in
danger of being lost, removed, or
materially
injured
unless
a
receiver is appointed;

191

192
b. In foreclosure of mortgage, when
the property is in Danger of being
dissipated or materially injured,
and that its value is probably
insufficient to discharge the
mortgage debt or that it has been
agreed upon by the parties;
c. After judgment, to Preserve the
property during the pendency of
an appeal or to dispose of it
according to the judgment or to
aid execution;
d. When appointment of receiver is
the most Convenient and feasible
means
of
preserving,
administering or disposing of the
property in litigation.
Note: The
litigation.

property

must

be

under

Requisites:
1. Property or fund subject of
receivership is under litigation
2. Appointment
of
receiver
is
warranted under Sec. 1 Rule 59
3. Applicant files a sufficient bond to
the effect that the applicant will
pay the receiver all damages he
may sustain by reason of the
appointment
in
case
such
applicant shall have procured the
appointment without sufficient
cause. Refer to Rule 59, Sec. 2.
4. No counterbond filed by the
adverse party to deny the
application for receivership. Refer
to Rule 59, Sec. 3.
5. Receiver shall be:
a. Sworn to perform his duties
faithfully, and
b. Shall file a bond to the effect
that he will faithfully discharge
his duties in the action or
proceeding and
c. Obey the orders of the court.
6. Service of copies of bonds shall be
made by the party filing the same

to each interested party who may


except to its sufficiency, or of the
surety or sureties thereon.
Requisites before Issuance of an Order:
1. Verified application and such
other proof as the court may
require that the applicant has an
interest in property or fund which
is the subject of the action or
proceeding and such property or
fund is in danger of being lost,
removed, or materially injured
unless a receiver is appointed to
administer
and
preserve
it
(Riguera,
Primer-Reviewer
on
Remedial Law).
2. Bond an applicants bond is
required:
a. It is an executed to the
party against whom the
application presented,
b. In an amount fixed by
court,
c. To the effect that the
application will pay such
party all damages he may
sustain by reason of the
appointment
of
such
receiver (Riguera, PrimerReviewer
on
Remedial
Law).
3. Notice and Hearing is conducted
to determine that:
a. The applicant has interest
in the property or fund,
and
b. In danger of being lost,
removed
or
materially
injured, and
c. Appointment of a receiver
is the most convenient and
feasible
means
of
preserving, administering
or disposing the property
in litigation.
Where to file:

During the pendency of the appeal, the


appellate court, may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin
and the receiver appointed to be subject
to the control of said court.
GENERAL POWERS OF A RECEIVER
1. Bring and defend, in such capacity,
actions in his own name;
2. Take and keep possession of the
property in controversy;
3. Receive rents;
4. Collect debts due to himself as
receiver or to the fund, property,
estate, person, or corporation of which
he is the receiver;
5. Compound for and compromise the
same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property
that shall remain among the persons
legally entitled to receive the same;
9. Generally to do such acts respecting
the property as the court may
authorize; and
10. Invest funds in his hands, only by
order of the court upon the written
consent of all the parties.
Note: Section 30 of the General Banking
Law of 2000 (RA 8791) states that the
appointment of a receiver shall be vested
exclusively with the monetary board. The
term exclusively connotes that only the
Monetary Board can resolve the issue of
whether a bank is to be placed under
receivership and, upon an affirmative
finding, it also has authority to appoint a
receiver (Koruga v Arcenas; G.R. No.
168332; 2009).
Two Kinds of Bonds
1. Applicantsbond.

Sec. 2 of Rule 59 is very clear in that


before issuing the order appointing a
receiver the court shall require the
applicant to file a bond executed to the
party against whom the applicant is
presented. The filing of an applicants
bond is required at all times (Tantano vs.
Espina-Caboverde 29 July 2013).
2. Receiversbond
On the other hand, the requirement of a
receivers bond rests upon the discretion
of court. Sec. 2 of Rule 59 clearly states
that the court may, in its discretion, at
any time after appointment, require an
additional bond as further security for
such damages (Tantano vs. EspinaCaboverde 29 July 2013).
Termination Of Receivership
Receivership may be denied or lifted:
a. If the appointment sought or
granted is without sufficient
cause.
b. Adverse party files a sufficient
bond to answer for damages (Sec.
3);
c. Bond posted by the applicant for
grant
of
receivership
is
insufficient.(Sec. 5); or
d. Bond of the receiver is insufficient
(Sec. 5).

RULE 60
REPLEVIN
Section 1: When May Writ Be Issued.
Replevin is a provisional remedy wherein
a party praying for the recovery of
possession of personal property may
apply for an order for the delivery of such
property to him.
It may also refer to the main action for the
recovery of personal property wrongfully
detained by the defendant (Riguera 2013).

193

194

Notes:
1. Principal Action: Recovery of
possession of personal property
2. Provisional Remedy: Replevin
Subject Matter: Personal Property
The contracting parties may validly
stipulate that a real property be
considered as personal. After agreeing to
such stipulation, they are consequently
estopped from claiming otherwise. Under
the principle of estoppel, a party to a
contract is ordinarily precluded from
denying the truth of any material fact
found therein. The Court upheld the
intention of the parties to treat a house as
personal property because it had been
made the subject of a chattel mortgage.
(Sergs Product vs. PCI Leasing & Finance
Co. 22 August 2000)
Note: The applicant seeking immediate
possession need not be the holder of legal
title. It is sufficient that he is entitled to
the possession thereof.
When May Writ Be Issued
Replevin may be applied for and issued at
the commencement of the action or at any
time before answer.
Note: Once an answer has been filed, the
replevin is no longer available and the
remedy would be to move for preliminary
attachment under Sec. 1(c) Rule 57.
(Riguera 2013)
Requisites for the Issuance of a Writ of
Replevin
1. The applicant must show by his own
affidavit or that of some other person
who personally knows the facts:
a. That the applicant is entitled to
the possession of the subject
property

b. That the property is wrongfully


detained by the adverse party
c. That the property has not been
distrained or taken for a tax
assessment or a fine, or seized
under a writ of execution or
preliminary
attachment,
or
otherwise placed in custodia
legis, or if so seized, that it is
exempt from such seizure or
custody.
d. The actual market value of the
property
2. Bond. The applicant must give a bond,
executed to the adverse party in
double the value of the property as
stated in the affidavit for the return of
the property if such return be
adjudged, and for the payment to the
adverse party of such sum as he may
recover from the applicant in the
action. (Riguera 2013)
Requisites for Recovery of Replevin
Bond:
1. Application showing right to damage;
2. Notice given to plaintiff and his surety;
3. Hearing in case recovery is opposed;
4. Award for damages must be included
in judgment of the court (Sec. 20,
Rule 57).
Adverse party can seek the return of
the property
If within 5 days from taking of the
property by the sheriff, the adverse party
decides to have the property back, he may
require the return by:
1. Filing with the court where the action
is pending a redelivery bond executed
to the applicant, in double the value
of the property conditioned upon the
payment of sum as may be recovered
against the adverse party; and
2. By serving a copy of the bond on the
applicant.

AFFIDAVIT AND BOND; REDELIVERY


BOND
Procedurefortheapplicationforreplevin
1. A party praying for theremedy
ofreplevin
mustfileanapplicationforawritofrep
levin,atthecommencementoftheact
ionoratanytimebeforethedefendant
answer.
2. Theapplication
mustcontainhisownaffidavitorthat
ofsomeotherpersonwhopersonallyk
nowsthefacts:
a. That
the
applicant
istheowner
ofthe
propertyorisentitledtoitspo
ssession.
b. Thattheadverse
party
wrongfully
detains
the
property.
c. That
thepropertyhasnotbeendist
rainedortakenfortaxassess
mentorafinepursuant
tolaw,orseizedunderawritof
executionorpreliminaryatta
chmentorotherwiseplacedi
ncustodialegis.
d. Theactualmarketvalueofthe
property
3. Theapplicantmustgiveabond,execu
tedtotheadversepartyanddoublethe
valueoftheproperty.
Which Court has jurisdiction:
MTC or RTC depending on the value of
thepropertyandnotthevalueofthebond.
Section 3: Order.
Whenthe
court
approves
the
application,the
courtshallissueanorderandthecorrespondi
ng
writofreplevin
describing
thepropertyalleged
tobewrongfullydetained.

Section 4: Sheriffs Duty in the


Implementation of the Writ, When
Property Us Claimed by Third Party.
1. Upon receipt of the court order,
the sheriff must:
a. Serve a copy of the order
on the adverse party;
b. With
a
copy
of
the
application;
c. Affidavit; and
d. Bond
2. Take custody of the property;
3. He must keep the property it in a
secure place
Note: The proceedings where property
claimed by third person in this rule is the
same as the procedure in Rule 57.

RULE 61
SUPPORT PENDENTE LITE
Support Pendente Lite
It is the support provided to a party
during the pendency of the litigation.
Principal Action:
Provisional

Action for

support

Remedy: Support Pendente Lite


Section 1: Application.
At the commencement of the proper
action or proceeding, or at any time prior
to the judgment or final order, stating the
grounds for the claim and financial
conditions of both parties, accompanied
by affidavits and other documents in
support thereof.
Section 2: Comment.
This section now requires the filing within
the extended period of 5 days of a
comment,
instead
of
an
answer
(Regalado).

195

196
Section 5: Enforcement of the Order.
If the adverse party fails to comply with
the order, the court, shall motu proprio or
upon motion issue an order of execution.
ACTIONS
WHERE
REMEDY
IS
AVAILABLE:
1. Actions for support
2. In criminal actions where the civil
liability includes support for the
offspring as a consequence of the
crime and the civil aspect thereof
has not been waived, reserved or
instituted prior to its filing.
Q: What courts may grant Support
Pendente Lite?
A:
CIVIL CASES
FAMILY COURT may grant support
pendente lite since an action for support
falls within the jurisidction of the family
court.

action.

Relief)

There are ten (10) such special civil


actions, to wit:
1. Quo warranto;
2. Contempt;
3. Foreclosure
of
real
estate
mortgage;
4. Interpleader;
5. Declaratory relief and similar
remedies;
6. Certiorari,
prohibition
and
mandamus;
7. Review of decisions of COMELEC
and COA (riguera 2013)
8. Expropriation;
9. Ejectment (Forcible entry and
Unlawful Detainer)
10. Partition(Riguera,
Primer
on
Remedial Law,Vol.1 ,2015)

Venue
The venue of Special Civil Actions is
THE CA MAY ALSO GRANT SUPPORT PENDENTE LITE WHERE PROPER IN AN APPEALED
governed by the general rules on venue,
CASE.(Riguera, Primer on Remedial Law,Vol. 1, 2015)
EXCEPT as otherwise indicated in the
particular rule for said Special Civil
Action. (Ex. Quo Warranto under Sec. 7,
SPECIAL CIVIL ACTION
Rule 66).
NATURE OF SPECIAL CIVIL ACTION
A special civil action, which aside from
being governed by the rules for ordinary
civil actions, is subject to specific rules to
provide it (Riguera, Primer Reviewer on
Remedial Law).
ORDINARY
CIVIL ACTION
Governed
by
the rules on
ordinary
civil
action;
Every Ordinary
Civil
Action
must be based
on a cause of

SPECIAL CIVIL
ACTION
Governed
by
the
rules on ordinary
civil
actions
and
specific rules;
Not every Special
Civil Action is based
on a cause of action.
(ex.
Declaratory

Special Civil Actions are governed by the


rules on Ordinary Civil Actions, subject
to the specific rules prescribed for a
particular Special Civil Action. (Sec. 3-a,
Rule 1)
By virtue of Section 3 of Rule 1, the
provisions of Rule 16 on motion to
dismiss are applicable in Special Civil
Actions (National Power Corp. v. Valera, L15295, Nov. 30, 1961).

RULE 62
INTERPLEADER

Interpleader
A special civil action filed by a person
against whom two conflicting claims are
made upon the same subject matter and
over which he claims no interest, to
compel the claimants to interplead and to
litigate their conflicting claims among
themselves.

laches. Where a party was aware of the


dispute and in fact had been sued by one
of the claimants and the former did not
implead the other claimant, he can no
longer invoke the remedy of interpleader.
(Wack wack golf & Country Club v. Lee
Won, G.R. No. L-23851, March 26, 1976)
(Regalado)

It is also a special civil remedy whereby a


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

Section 4: Grounds to Dismiss an


Action for InterpleaderImpropriety of
the interpleader action.
1. Other appropriate grounds under
Rule 16.

Breach of Obligations, Not covered


Interpleader cannot be availed of to
resolve
the
issue
of
breach
of
undertakings made by defendants which
issues should be resolved in an ordinary
civil action for specific performance or
other relief (Beltran v. PHHC, L-25138,
Aug. 28, 1969).
Requisites of Interpleader:
1. The plaintiff claims no interest in the
subject matter or his claim thereto is
not disputed;
2. The parties to be interpleaded must
make effective claims;
3. There must be at least two or more
conflicting claims; and
4. The subject matter must be one and
the same.
When to file
An action for interpleader must be filed
within a reasonable time after a dispute
has arisen, otherwise it may be barred by

Noter: the period to file an answer shall


be tolled, and if the motion to dismiss is
denied, the movant may file his answer
within the remaining period, but which
shall not be less than 5 days reckoned
from notice of denial. This rule is the
same with sec. 5, Rule 12 and Sec. 4,
Rule 16.
Period to File an Answer:
Each claimant shall file his answer
setting forth his claim within 15 days
from service of summons.

RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
Declaratory Relief
It is a special civil action brought by a
person interested under a deed, will,
contract or other written instrument,
whose rights are affected by a statute,
executive order or regulation, ordinance,
or any other governmental regulation to
determine any question of construction
or validity arising, and for a declaration
of his rights or duties, thereunder.
Actions under Rule 63
1. Petition for declaratory relief

197

198
2. Similar remedies, specifically:
a. Action for reformation of an
instrument
b. Action to quiet title
c. Action to consolidate ownership
over the real property by the
vendee a retro pursuant to Art.
1607 of the Civil Code.
Who may file the action
All persons which have or claim any
interest which would be affected by the
declaration shall be made parties. No
declaration shall prejudice the rights of
persons not parties to the action, except
as otherwise provided in the Rules.
When to file
It should be brought before breach or
violation of the contract or written
instrument, or of the statute, executive
order,
regulation,
ordinance,
or
governmental regulation (Sec.1). Where
the contract has already been breached
prior to the filing of an action for
declaratory relief, the court can no longer
assume jurisdiction over the action. Any
judgment for declaratory relief is a
nullity.
(Riguera 2013, citing Tambunting vs.
Baello, 16 September 2005).
Where to file the action
Distinction should be made between the
first and second paragraphs of Sec. 1.

The first paragraph describes the


general circumstances in which a person
May file a petition for declaratory relief,
and as the provision states, it may be
brought before the appropriate RTC.
However, second paragraph refers to
remedies
considered
similar
to
declaratory relief because they also result

in adjudication of the legal rights of the


litigants, often without the need of
execution to carry the judgment into
effect. Hence, whether RTC or MTC has
jurisdiction over such actions as
identified in the second paragraph
depends on the value of the property
involved. (Malana vs. Tappa, G.R. No.
181303, September 17, 2009)
An action for declaratory relief is an
of
pecuniary
actionincapable
estimation. Hence, any action for
declaratory relief shall be filed with the
RTC (Riguera 2013, citing Ombudsman
vs. Ibay,G.R. No.137538, 3 Sept. 2001).
The non-joinder of parties in declaratory
relief proceeding is NOT a jurisdictional
defect for Sec.2, Rule 63 provides that
the declaration/ declaratory judgment
shall not prejudice their interests. Since
the judgment in a declaratory relief
case
is
merely
declaratory
and
not executory, the rule on compulsory
joinder of indispensable parties does
not apply.
Requisites of actions for Declaratory
Relief:
1. The subject matter of the
controversy must be a deed, will,
contract
or
other
written
instrument, statute, executive
order or regulation, or ordinance;
2. The terms of said documents and
the validity thereof are doubtful
and require judicial construction;
3. There must have been no breach
of the documents in question;
4. There must be an actual
justiciable controversy or the
ripening seeds of one between
persons whose interests are
adverse;
5. The issue must be ripe for
judicial determination; and

6. Adequate relief is not available


through other means or other
forms of action or proceeding
(Republic vs. Roque 24 September
2013)
Section 5: When Court may refuse to
make Judicial Declaration
1. The decision will not terminate
the controversy or uncertainty
giving rise to theaction; or
2. The declaration or construction is
not necessary and proper under
thecircumstances.
Note:
This provision does NOT apply in
actions for reformation of an instrument
to quiet title of real property or remove
clouds therefrom, or to consolidate
ownership under Art. 1607 of the Civil
Code.
CONVERSION TO ORDINARY ACTION
When is Conversion Proper:
If before the final termination of the
case, a breach or violation of the
instrument or statute occurs, then the
same may be converted into an ordinary
action.
If there has been a breach of statute
BEFORE the filing of the action, the
remedy of declaratory relief CANNOT be
availed of.
The law does not require that there
shall be an actual pending case. It is
sufficient that there is a breach of the
law, an actionable violation to bar a
complaint
for
declaratory
relief
(Borja v. Villadolid, L-1897, November
28, 1949).

However, if the petition has farreaching


implications
and
raises
questions that should be resolved, the
Supreme
Court
may
treat
the
petition as one for prohibition or
mandamus
and
take
cognizance
thereof (Riguera 2013, citing Alliance
of Govt Workers vs. Minister of Labor
and Employment, 124 SCRA 7).
Proceedings considered as Similar
Remedies
1. An action for the reformation
of an instrument;
2. An action to quiet title to real
property
or
remove
clouds
therefrom; and
3. An action to consolidate ownership
under Article 1607 of the NCC
(Section 1, 2nd par.).
These three remedies are considered
similar to declaratory relief because
they also result in the adjudication of
the legal rights of the litigants, often
without the need of execution to carry
the judgment into effect.
A procedural distinction between the
two remedies is that in actions
falling under the second paragraph,
the court is BOUND to render
judgment, whereas in actions falling
under the first paragraph, the court
MAY REFUSE to exercise the power to
declare rights and to construe
instruments.
JURISDICTION
Action for Reformation RTC
Action for Quieting of Title
Generally, RTC.However, where the
principal relief sought is the recovery of
possession or title to real property or
interest therein, the action would be a

199

200
real action and jurisdiction would
depend on the assessed value of the
property.
Action to Consolidate
Ownership
over Real Property MTC or RTC,
depending on the assessed value of
the subject real property(Riguera
2013)

RULE 64
REVIEW OF JUDGMENTS AND
FINAL ORDERS OR
RESOLUTIONS OF THE
COMMISSION ON ELECTION
AND COMMISSION ON AUDIT
Basis:
Unless otherwise provided by the
Constitution or by law, any decision,
order or ruling of each commission may
be brought to the Supreme Court on
certiorari by the aggrievedparty within
30 days from receipt of a copy
thereof. (Sec. 7, Art. XI, 1987
Constitution)
Section 2: Mode of Review
Petition for certiorari under Rule 65.
However, the period for filing a petition
for certiorari assailing the judgment of
the COMELEC and COA is shorter than
that provided for under Rule 65.
Under Rule 65, the petition for certiorari
shall befiled not later than 60 days from
notice of judgment or from notice of
denial of a motion forreconsideration or
motion for new trial whereas Rule 64
provides that the petition shall be filed
within 30 days only.
However, review of judgment, final
order or resolution of the Civil Service
Commission is not covered by this rule
but by Rule 43 through a petition for

review to the CA pursuant to R.A.


7902.
RULE 64
Directed only to the
judgments,
final
orders,
or
resolutions of the
COMELEC and the
COA
Must be filed within
30 days from notice
of the judgment or
resolution.
Note: Fresh period
Rule does not apply.
If MR is denied, the
aggrieved
party
may file the petition
within
the
remaining
period
but which shall not
be less than 5 days.

RULE 65
Directed to any
tribunal, board,
or
officer
exercising judicial
or quasi-judicial
functions
Must
be
filed
within 60 days
from notice of the
judgment
or
resolution.
If MR is denied,
the
aggrieved
party will have
another 60 days
counted from the
notice of the denial
within which to file
the petition.

The filing of a motion for reconsideration


is mandatory because the mode by which
a decision, order or ruling of the
COMELEC en banc may be elevated to the
Supreme Court is by the special civil
action of certiorari under Rule 64 of the
Rules of Civil Procedure.
It is settled that the filing of a motion for
reconsideration of the order, resolution or
decision of the tribunal, board or office is,
subject to well-recognized exceptions, a
condition sine qua non to the institution
of a special civil action for certiorari. The
rationale therefore is that the law intends
to afford the tribunal, board or office an
opportunity to rectify the errors and
mistakes it may have lapsed into before
resort to the courts of justice can be had.
(Esteves vs. Sarmiento 11 November 2008)

RULE 65

CERTIORARI, PROHIBITION
AND MANDAMUS
CERTIORARI
An extraordinary remedy by which an
aggrieved person prays for a judgment
annulling or modifying the proceedings of
a tribunal, board or officer exercising
judicial, quasi-judicial functions on the
ground that such tribunal, board or
officer has acted without or in excess
of jurisdiction, or with grave abuse of
discretionamounting to lack or excess of
jurisdiction (Sec.1).
An aggrieved party under Section 1, Rule
65 of the Rules of Court is one who was a
party to the original proceedings that gave
rise to the original action for certiorari
under Rule 65.
Thus, a person not a party to the
proceedings in the trial court or in the CA
cannot maintain an action for certiorari
in the Supreme Court to have the
judgment reviewed. Stated differently, if a
petition for certiorari or prohibition is
filed by one who was not a party in the
lower court, he has no standing to
question the assailed order. (Pascual vs.
Robles 22 June 2011)
Q: Petitioner engaged the services of
KGLC law offices to pursue a civil
collection case and administrative case
against the Municipal Government of
Muria. RTC dismissed the case for failure
to prosecute. Petitioner filed a petition for
certiorari under Rule 65 of the Rules of
Court to challenge RTCs decision. Is the
petition correct?
A: No. The SC explained that under Rule
17 Sec. 3 and Rule 56 of the ROC, the
remedy against final order is appeal and
not certiorari. An appeal may be
dismissed upon motion if a party resorts

to an erroneous mode. (SPIDC v.


Municipal Govt of Muria, Mar. 16, 2016)
PROHIBITION
An extraordinary remedy by which an
aggrieved person prays for a judgment
commanding a tribunal, corporation,
board, officer or person, whether
exercising judicial, quasi-judicial or
ministerial functions, to desist from
further proceedings in an action or
matter in the ground that such
proceedings are without or in excess of
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction (Sec.2).
MANDAMUS
An extraordinary remedy commanding a
tribunal, corporation, board or person,
to do an act required to be done:
1. When
it
or
he unlawfully
neglects the performance
of
an
act
which
the
lawspecifically
enjoins as a duty, or
2. When a person unlawfully excludes
another from the use and enjoyment
of a right or office to which such
person is entitled.
Q: Petitioner filed a petition of mandamus
to compel COMELEC to implement Voter
Verified Audit Trail security feature.
COMELEC refuses arguing that the use if
this security feature will only delay in the
conduct of the elections and that it may
also be used for vote buying. May the
COMELEC
be
compelled
in
implementing the said security feature
through a writ of mandamus?
A: Yes. A petition for mandamus may be
granted and issued when an agency
unlawfully neglects the performance of
an act which the law specifically enjoins

201

202
as a duty resulting from an office.
COMELEC fails to fulfill the duty required
under the law through its inaction in
utilizing the VVPAT feature of the vote
counting machines. (Bagumbayan-VNP
Movement, Inc. et. al. v. COMELEC, Mar. 8,
2016)

CERTIORARI

PROHIBITION

This remedy is corrective


to correct usurpation of
jurisdiction.

NATURE
The remedy is preventive
and negative to restrain or
prevent
usurpation
of
jurisdiction.

Directed against an entity


or person exercising judicial
or quasi-judicial function.

AGAINST WHOM DIRECTED


Directed against an entity or Directed against an entity or
person exercising judicial, person exercising ministerial
quasi-judicial or ministerial function.
function.

Entity or person is alleged


to have acted: without
jurisdiction; in excess of
jurisdiction; or with grave
abuse
of
discretion
amounting to lack or excess
of jurisdiction.

GROUNDS
Entity or person is alleged to
have
acted:
without
jurisdiction; in excess of
jurisdiction; or with grave
abuse
of
discretion
amounting to lack or excess
of jurisdiction.

To annul or
proceeding.

PURPOSE
To have respondent desist
from further proceeding.

nullify

a. It is directed against a
tribunal, board, or officer
exercising judicial
or
quasi-judicialfunctions;
b. That such tribunal,
board, or officer has acted
without or in excess of
jurisdiction or withgrave
abuse of discretion;
c. There is no appeal nor
plain,
speedy
and
adequate remedy in the
ordinary course oflaw;
d. Petition is verified and
must allege facts with
certainty;
e.
Petition
must
be
accompanied by a certified
true copy of the judgment
copies of all pleadings and

REQUISITES
a. The petition must be
directed against atribunal,
corporation,
board
or
person exercising judicial,
quasi-judicial or ministerial
functions;
b.
The
tribunal,
corporation,
board
or
person must have acted
without or in excess of
jurisdiction or with grave
abuse
of
discretion
amounting
to
lack
of
jurisdiction;
c. There is no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law;
d. Shall be accompanied by
certified true copy of the

MANDAMUS
This remedy is affirmative or
positive (if the performance of
duty is ordered) or it is
negative (if a person is ordered
to
desist
from excluding
another from a right or office.)

Entity or person is alleged to


have unlawfully: neglected a
ministerial duty; or excluded
another from a right or office.

For respondent to:


1. Do the act recquired; and
2. To pay damages.
a. The plaintiff has a clear
legal right to the act
demanded.
b. It must be the duty of
the defendant, to perform
the act because the
same is mandated by law.
c. The defendant unlawfully
neglects the performance of
the duty enjoined by law.
d. The act to be performed is
ministerial, not discretionary.
e. There is no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law.

203

204
document relevant and a
sworn certification of nonforum shopping.

judgment or order subject of


the petition, copies of all the
pleadings and documents
pertinent thereto, and a
sworn certification against
forum shopping.

RULE 45
APPEAL BY CERTIORARI
Broad
Mode of appeal
Under the exclusive appellate jurisdiction
of the SC
Raises only questions of law

Review of the final judgments or final


orders
Must be filed within the reglamentary
period for appeal
Does not require prior MR
Stays the judgment appealed from
Petitioners and Respondents are the
original parties to the action; the court is
not to be impleaded

RULE 65
SPECIAL CIVIL ACTION FOR CERTIORARI
Limited
Original action
Under the concurrent original jurisdiction of SC,
CA and RTC
Raises the question of jurisdiction because the
court acted without or in excess of jurisdiction or
with grave abuse of discretion
May be directed against interlocutory order
May be filed not later than 60 days from notice of
judgment
As a general rule, filing of MR is a condition
precedent
Does not stay the judgment or order subject of
the petition unless an injunction has been issued
Parties are the aggrieved party against the court
or tribunals as respondents; the court or judge
whose orders or proceedings are challenged are
impleaded as public respondents

PROHIBITION

INJUNCTION

Special civil action

Ordinary action

Prohibition strikes at once to the


jurisdiction of the court

Injuction usually recognizes the jurisdiction


of the court before which the proceeding is
pending

Prohibition is directed against a


tribunal, board or officer, exercising
judicial or quasi-judicial functions

Injunction may not be directed against a


tribunal, board or officer; it may be directed
only to the parties.

MANDAMUS

INJUNCTION

Remedial

Preventive

To set in motion or compel action

To restrain motion or to enforce inaction

Motion to dismiss under Rules 16&17

Additional ground is Sec. 6, Rule 58

205

When
petition
Prohibition
and
proper:

such other is entitled, and there is no other


plain, speedy, adequate remedy in the
ordinary course of law.

for
Certiotari
Mandamus
is

Certiorari is proper when any tribunal,


board, officer, or body exercising judicial
or quasi-judicial functions has acted
without or in excess of its or his
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal,
no any plain, speedy, adequate remedy
in the ordinary course of law.
Considering the final nature of a small
claims case decision, the remedy of appeal
is not allowed, and the prevailing party
may, thus, immediately move for its
execution. Nevertheless, the proscription
on appeal in small claims cases, similar to
other proceedings where appeal is not an
available remedy, does not preclude the
aggrieved party from filing a petition for
certiorari under Rule 65 of the Rules of
Court. (A.L. Ang Network vs. Mondejar 22
January 2014)
Prohibition
is
proper
when
the
proceedings of any tribunal, corporation,
board,
officer
or
person,
whether
exercising judicial, quasi-judicial, or
ministerial functions, are without or in
excess of its or his jurisdiction, or with
grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is
no appeal, nor any other plain, speedy,
adequate remedy in the ordinary course of
law.
Mandamus is
proper
when
any
corporation,
board,
officer
or
tribunal,
person

unlawfully

neglects

the

performance of an act which the law


specifically enjoins as a duty resulting
from an office, trust, or station, or
unlawfully excludes another from the use
and enjoyment of a right or office to which

INJUNCTIVE RELIEF
The petition shall NOT interrupt the course of
the principal case UNLESS a temporary
restraining order or a writ of preliminary
injunction has been issued against the public
respondent from further proceeding in the
case.
The public respondent shall PROCEED
WITH THE PRINCIPAL CASE WITHIN 10
DAYS FROM THE FILING OF THE PETITION
FOR CERTIORARI WITH THE HIGHER
COURT, absent a TRO or preliminary
injunction, or upon its expiration. Failure of
the public respondent to proceed may be a
ground
for
an
administrative
charge(A.M.No.07-7-12-SC).
Exceptions to Filing of Motion for
Reconsideration before filing Petition for
Certiorari
General Rule:The filing of a Motion for
Reconsideration is condition sine qua non to
the filing of a petition for certiorari, to allow
the court an opportunity to correct its
imputed errors(Riano, 2007).
Exceptions:
1. Where the order is a patent nullity;
2. Where the questions raised in the
certiorariproceeding has been duly raised
and passed by the lower court;
3. Where there is an urgent necessity for
the resolution of the question and any
furtherdelay would prejudice
the
interests of the government or of the
petitioner;
4. Where the subject matter of the action
is perishable;
5. Where under the circumstances, a motion
for reconsideration would be useless;

6. Where petitioner was deprived of due


process and there is extreme urgency
for relief;
7. Where in a criminal case, relief from
order ofarrest is urgent and the
granting of such relief by the trial
court is improbable
8. Where the proceedings in the lower
court are a nullity for lack of due
process;
9. Where the proceedings was ex parte
or in which the petitioner had no
opportunity toobject; and
10. Where the issue raised is one purely of
law or where public interest is involved
RELIEFS PETITIONER IS ENTITLED TO:

Commission
on
Elections - Election
cases involving an act or an omission of a
municipal or a regional trial court (as
amended
by
A.M.
No.
077-12-SC December 4, 2007).
There is concurrent original jurisdiction
among the SC, CA, RTC, Sandiganbayan,
and COMELEC.
UNMERITORIOUS PETITION
It is a petition which is either patently
without merit or prosecuted for delay, or if
the questions raised therein are too
unsubstantial to require consideration.

Stay the Execution of Judgment/


Final Order/ Resolution
Under this rule, the petitioner may apply
for a restraining order or a preliminary
injunction from the Supreme Court to
stay the execution of judgment or final
order or resolution sought to be reviewed.

Effect of filing

When to file petition


It is filed not later than 60 days from
notice of the judgment, order or resolution
or notice of denial of the motion for
reconsideration or new trial, if one is filed.

The Court may impose motu proprio, based


onres ipsa loquitor, other disciplinary
sanctionsor measures on erring lawyers for
patently
dilatory
and
unmeritorious
petitions for certiorari.(As amended by A.M.
No. 07-7-12-SC, December 12, 2007)

ACTIONS or OMISSIONS of MTC or


RTC IN ELECTION CASES
Where to File
Regional Trial Court, Court of
Appeals, Sandiganbayan petition
relates to an act or an omission of a
municipal trial court
or
of
a
corporation, a board, an officer or a
person
Court of Appeals - petition involves an
act or an omission of a quasi judicial
agency unless otherwise provided by law
or these rules.

The court may award in favor of


respondent treble costs solidarily against
the petitioner and counsel, in addition to
subjecting
counsel
to
administrative
sanctions under Rules 139 and 139-B of
the Rules of Court.

Q: After an information for rape was filed in


the RTC, the DOJ Secretary, acting on the
accused's petition for review, reversed the
investigating prosecutor's finding of probable
cause. Upon order of the DOJ Secretary, the
trial prosecutor filed a Motion to Withdraw
Information which the judge granted. The
order of the judge stated only the following:
"Based on the review by the DOJ Secretary of
the findings of the investigating prosecutor
during the preliminary investigation, the
Court agrees that there is no sufficient
evidence against the accused to sustain the
allegation in the information. The motion to

withdraw
granted."

Information

is,

therefore,

If you were the private prosecutor, what


should you do? Explain.
A: If I were the private prosecutor, I would
file a petition for certiorari under Rule 65
with the Court of Appeals (Cerezo vs.
People, G.R. No.185230, June 1, 2011). It is
well-settled that when the trial court is
confronted with a motion to withdraw and
Information (on the ground of lack of
probable cause to hold the accused for
trial based on resolution of the DOJ
Secretary), the trial court has the duty to
make an independent assessment of the
merits of the motion. It may either agree or
disagree with the recommendation of the
Secretary.
Reliance alone on the resolution of the
Secretary would be an abdication of the
trial courts duty and jurisdiction to
determine a prima facie case. The court
must itself be convinced that there is
indeed no sufficient evidence against the
accused. Otherwise, the judge acted with
grave abuse of discretion if he grants the
Motion to Withdraw Information by the
trial prosecutor. (Harold Tamargo vs.
Romulo Awingan et. al. G.R. No. 177727,
January 19, 2010)
Q:Mr. Sheriff attempts to enforce a Writ of
Execution against X, a tenant in a
condominium unit, who lost in an
ejectment case. X does not want to budge
and refuses to leave. Y, the winning party,
moves that X be declared in contempt and
after hearing, the court held X guilty of
indirect contempt. If you were X's lawyer,
what would you do? Why?
A: If I were Xs Lawyer, I would file a
petition for certiorari under Rule 65. The
judge should not have acted on Ys motion

to declare X in contempt. The charge of


indirect contempt is initiated through a
verified petition. (Rule 71, Sec. 4, Rules of
Court). The writ was not directed to X but to
the sheriff who was directed to deliver the
property to Y. As the writ did not command
the judgment debtor to do anything, he
cannot be guilty of the facts described in Rule
71 which is disobedience of or resistance
toalawfulwrit, process, order, judgment, or
command any court. The proper procedure is
for the sheriff to oust X availing of the
assistance of peace officers pursuant to
Section 10 (c) of Rule 39.(Lipa vs. Tutaan, L16643, 29 September 1983; Medina vs.
Garces, L-25923, July 15, 1980; Pascua vs.
Heirs of Segundo Simeon, 161 SCRA 1;
Patagan et. al. Vs. Panis, G.R. No. 55630,
April 8, 1988)
Q: A files a Complaint against 8 for recovery
of title and possession of land situated in
Makati with the RTC of Pasig. B files a
Motion to Dismiss for improper venue. The
RTC Pasig Judge denies B's Motion to
Dismiss, which obviously was incorrect.
Alleging that the RTC Judge "unlawfully
neglected the performance of an act which
the law specifically enjoins as a duty
resulting from an office", 8 files a Petition for
Mandamus
against
the
judge.
Will
Mandamus lie? Reasons.
A: No, mandamus will not lie. The proper
remedy is a petition for prohibition. (Serana
vs. Sandiganbayan, G.R. No. 162059,
January 22, 2008). The dismissal of the case
based on improper venue is not a ministerial
duty. Mandamus does not lie to comple the
performance of a discretionary duty. (Nilo
Paloma vs. Danilo Mora, G.R. No. 157783,
September 23, 2005)

RULE 66
QUO WARRANTO

In latin, quo warranto means by what


right of authority. (Riguera 2013).
A special civil action brought in the name
of the Republic against the usurpation of
public office, position or franchise, and
commenced by the filing of a verified
petition.
QUO
WARRANTO
Basis is that
occupant is
disqualified
from
holding
office by reason
of
ineligibility
or
disloyalty.
If
successful,
respondent is
ousted
but
petitioner shall
not
automatically
assume
the
office vacated.
This
rule
presupposes
that
the
respondent is
already holding
office.
Petition
must
be filed by a
person entitled
to the office.

ELECTION
PROTEST
Challenge rights
of a person to
hold office on
the ground of
irregularities in
the conduct of
election

Successful
protestant
will
assume office if
he had obtained
plurality of valid
votes.

Must be filed
within 10 days
from
the
proclamation of
the candidate.
Petition must be
filed
by
any
registered
candidate.
(Regalado)

Section
1:
When
Government
commence
an
action
against
Individuals
Quo warranto is commenced by the
Government against the following:

1. A person who usurps a public office,


position or franchise;
2. A public officer who performs an act
constituting forfeiture of public office
3. An association which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority to do so.
Section 2: When Solicitor General or
Prosecutor must commence action.
The Solicitor General or public prosecutor
must commence a quo warranto proceeding
when:
1. Directed by the President of the
Philippines,or;
2. Upon complaint or otherwise, he has
good reason to believe that any case
specified inthe preceding section can
be established by proof.
Section 3: When Solicitor General or
Public Prosecutor commence action with
permission of court.
The Solicitor General or public prosecutor
may bring a quo warrantoproceeding at the
request and upon the relation of another
person, with the permission of the court in
which action is to be commenced.
Section
5:
When
Individual
may
commence an action.
A person claiming to be entitled to a public
office or position usurped or unlawfully
held or exercised by another may bring
an action therefore in his own name.
Section 7: Venue of Action
An action for quo warranto can be brought
only on the following courts:
1. Supreme Court;
2. Court of Appeals;
3. Regional
Trial
Court
exercising
jurisdiction over the territorial
area
where therespondent or any of the
respondent resides;
4. Sandiganbayan under RA8249;

5. COMELEC;
6. MTC over barangay
contest

level

election

If the proceeding was brought before the


RTC, it should
be
filed
with
the
RTC
exercising jurisdiction over the
territorial area where the respondent or
any of the respondents resides. If the
action is commenced by the Solicitor
General, it may be brought in a RTC in
Manila, in the Court of Appeals, or in the
Supreme Court (Sec. 7 Rule 66).
JUDGMENT IN QUO WARRANTO
ACTION
Section 9: Judgment where usurpation
found.
Judgment shall be rendered that such
respondent found to be usurping,
intruding or unlawfully holding or
exercising public office, position or
franchise, be ousted.
Section 10: Rights of a Person adjudged
entitled to Public Office
1. After taking the oath of office and
executing any official bond required by
law, he may take upon himself the
execution of the office;
2. Immediately demand from respondent
all the books and papers appertaining
to the office to which the judgment
relates; Respondents neglect or
refusal to comply with the demand is
punishable by contempt.
3. Bring an action for damages
against respondent sustained by him
by reason of the usurpation.
It must be commenced WITHIN 1 YEAR
after
the
entry
of the
judgment
establishing the petitioners right to the
office in question.

RULE 67
EXPROPRIATION
EXPROPRIATION
It is the procedure to be observed in the
exercise of the right of eminent domain.
EMINENT DOMAIN
The right of the State to acquire private
property for public use, upon payment of
just compensation and observance of due
process of law
Requisites:
1. due process
2. just compensation
3. public use
4. valid and definite offer previously
made
Who may exercise the power:
1. The State through, the national
legislature.
2. Local
governments (Sec. 19 Local
Government Code).
There must
bean ordinance passed by
the
LGU, a mere resolution will not
suffice.
3. Public utilities when authorized
by their franchise
Exprorpiation cases are
within the
jurisdiction of the Regional Trial Court.
Justice Feria emphasized that jurisdiction
over eminent domain cases is still within
the RTC under the 1997 Rules of Court. It is
not a question of who has a better title or
right for the government does not even claim
that it has a title to the property. It merely
asserts its inherent sovereign power of
eminent domain to appropriate and control
individual property for the public benefit,
as the public necessity, convenience or
welfare may demand. The subject of an

expropriation suit is the governments


exercise of the power of eminent
domain, a matter incapable of pecuniary
estimation (Brgy. San Roque v. Pastor, G.R.
138896, June 20, 2000).
Matters to allege in Complaint for
Expropriation:
1. State with certainty the right and
purpose of expropriation;
2. Description of the real or personal
property sought to be expropriated;
3. All persons owning or claiming to
own or occupying any part or interest
therein must bejoined as defendants,
showing, so far as practicable, the
separate interest of each defendant;
4. If the title of the property to be
expropriated is in the name of the
republic of thePhilippines or if
the title is obscure or doubtful,
averment to that effect shall be
made in the complaint.
Two Stages in every Action for
Expropriation:
1. Determination of the authority of
the petitioner to exercise the
power of eminent domain and
the propriety of its exercise.
2. Ascertainment by the court of
just compensation. This is done
with assistance of not more than
three (3) commissioners.
When plaintiff can immediately enter
into possession of the Real Property,
in relation to RA 8974
In Case of Real Property
Upon filing of the complaint or at
anytime thereafter and after due notice to
the defendant, the plaintiff shall have the
right to take or enter upon the possession
of the real property involved if he makes
a
Preliminary
Deposit
with
the
authorized
government
depositary

equivalent to the assessed value of the


property.
Form of Deposit:
Shall be in money, unless in lieu thereof the
court authorizes the deposit of a certificate
of deposit of a government bank of the
Republic of the Philippines payable on
demand to the authorized government
depositary.
Purpose of Preliminary Deposit:
1. Provide damages if court finds that the
plaintiff has no right to expropriate.
2. Advance payment for just compensation,
if property is finally expropriated
(Herrera, p. 400).
Value of Preliminary Deposit
If
personal
property

provisionally
ascertained and fixed by the court
If real property assessed value in tax return
In Case of Expropriation for National
Government Infrastructure Projects
The government shall immediately pay the
owner of the property 100% of the market
value of the property based on the tax
declaration or the current relevant BIR
zonal valuation, whichever is higher, and the
value of the improvements using the
replacement cost method (Riguera 2013
citing, Republic vs. Gingoyon, G.R. No.166429,
19 December 2005).
In Case of Expropriation
Government Unit

for

Local

The government unit may immediately take


possession of the property upon the filing of
the expropriation proceedings and upon
making a deposit with the proper court of at
least 15% of the fair market value of the
property based on the current tax
declaration
of
the
property
to
be
expropriated.

the current relevant zonal valuation of


the BIR and

In Case of Personal Property


The value of the personal property shall
be provisionally ascertained and the
amount to be deposited shall be promptly
fixed by the court.
After the deposit is made, the court shall
order the sheriff or other proper officer to
place
the
plaintiff
in
forthwith
possession of the real or personal
property and promptly submit a report
thereof to the court with service of copies
to the parties (Sec. 2 Rule 67). The court
shall issue a writ of possession for this
purpose.Otherwise, the plaintiff shall
have the right to enter upon the property
only upon payment to the defendant of
the compensation fixed by the judgment,
with legal interest thereon from the
taking of the possession of the property, or
after tender to the defendant of the
amount so fixed and payment of the
costs (Sec. 10 Rule 67)(Riguera 2013).
NEW SYSTEM OF IMMEDIATE
PAYMENT OF INITIAL JUST
COMPENSATION
(R.A. 8974)
Where real property is to be acquired for
the right-of-way, site or location for any
national government
infrastructure
project, the appropriate implementing
agency shall initiate the expropriation
proceedings before the proper court under
the following guidelines:
a.

upon the filing of the complaint and


after due
notice
to
the
defendant,
theimplementing
agency shall immediately pay the
owner of the property:
1. The amount equivalent to 100% of
the value of the property based on

2. The value of the improvements or


structures.
b.

In areas where there is no zonal


valuation, the BIR is mandated within 60
days from thedate of the filing of the
expropriation
case
to
come up with a zonal valuation for said
area.

c.

In
case
the
completion
of
government infrastructure
is
of
utmost urgency andimportance, and
there
is
no
existing valuation of
the area, the implementing agency
shall immediately pay the owner of the
property its proffered value.

Upon compliance with the guidelines above,


the court shall immediately issue to
the implementing agency an order to take
possession of the property and start the
implementation
of
the project.
Before the court can issue a writ of
possession, the implementing agency shall
present to the court a certificate of
availability of funds from the proper official
concerned.
Compensation must conform not only with
law but equity as well. Equity is defined as
justice outside the law, being ethical rather
jural and belonging to the sphere of morals
than of law. It is grounded on the precepts
of conscience and not on any sanction of
positive law. Hence, equity finds no room for
application where there is law. However, it is
complement of legal jurisdiction that seeks
to reach and to complete justice where courts
of law, through the inflexibility of their
rules and want of power to adapt their
judgments to the special circumstances of
cases, are incompetent to do so (Asias

Emerging Dragon Corp. v. DOTC; G.R. No.


169914; April 18, 2008)
Section 3: Defenses and Objections

If

defendant

of

Just

JUST COMPENSATION

Objections
A.

Section
5:
Ascertainment
Compensation.

has

no

objection

or

defense:
1. He may file and serve a NOTICE OF
APPEARANCE and MANIFESTATION to
that effect specifically designating or
identifying the property in which he
claims to be interested;
2. Thereafter, he shall be entitled to notice
of all proceedings.
B. If defendant has objection to the filing
or 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.
Section 4: Order of Expropriation
It is the declaration of the Court that
petitioner has a lawful right to take the
property for public use and upon payment
of just compensation as of the time of
taking of property or filing of the
complaint, whichever is earlier.
The report of the Commissioner on the
value of the condemned property is not
final. Judgment of the court is necessary
to give effect to their valuation.
The
court may correct the commissioners
report in any manner so that final
judgment may be rendered.
A final order sustaining the right to
expropriation may be appealed by any
party aggrieved thereby, but the appeal
shall not prevent the court from
determining the just compensation to be
paid.

The equivalent to the fair market value of


the property at the time of its taking or
filing of complaint whichever comes first. It
is the fair and full equivalent for the loss
sustained by the defendant.
Just Compensation; When Determined
Just compensation is determined as of the
date of the taking of the property or the filing
of the complaint, whichever comes first.
Formula
for determination
of Just
Compensation:
JC means Just Compensation
FMV means Fair Market Value
CD
means
Consequential
Damages
CB means Consequential Benefits
JC = FMV + CD - CB
If CB is MORE than CD then,JC = FMV
In no case shall the consequential benefits
exceed the consequential damages assessed,
or the owner be deprived of the actual
value of his property so taken (Sec. 6).
Sentimental value not computed.
FAIR MARKET VALUE
The price at which the property would
bring in a market of willing buyers and
willing sellers in the ordinary course of trade
and neither operating under pressure or
constraints (Riguera 2013, citing Steven Gifis
Law Dictionary 125 [1975]).
APPOINTMENT
OF
COMMISSIONERS;
COMMISSIONERS REPORT;
COURT
ACTION UPON COMMISSIONERS REPORT

COMMISSIONERS
Not more than 3 competent and
disinterested persons to ascertain and
report to the court the just compensation.
NOTE:
Objections
to
the
ORDER OF APPOINTMENT must be filed
within 10 DAYS from service of the order
and shall be resolved within30 DAYS after
ALL commissioners received the copies of
the objections.
Different from trial by commissioner
because the latters appointment is merely
discretionary.
NOTE: The appointment of commissioners
is MANDATORY and cannot be dispensed
with (Meralco v. Pineda, G.R. No. L-59791,
February 13, 1992).
Duties of the Commissioners
1. Unless the parties consent to the
contrary, Commissioners shall
view and examine theproperty
sought to be expropriated and its
surroundings, and may measure
the same;
2. Assess
the
consequential
damages
to
theproperty not
taken and deduct such damages
from the consequential benefits
derived by the owner; and
3. Report to the court its findings as
to the just compensation of the
property sought to beexpropriated.
Section 7: Report of Commissioners
and Judgment Thereupon
Report of Commissioners
1. It must be filed with the court within
60 DAYS from notice of their
appointment, which timemay be
extended in the discretion of the
court.

2. It shall not be effectual until the court


shall have accepted their report and
rendered judgment
in accordance
with their recommendations.
3. Interested parties may file their objections
to the report within 10 DAYS from
notice thereof.
Findings
of
the
Commissioners
may be disregarded and the Court may
substitute its own estimate of the value
but the latter may only do so for valid
reason and based on the evidence
gathered (Meralco v. Pineda, supra).
Section 8: Action upon Commissioners
Report
Actions Available to the Court
1.
After hearing, accept the report and
render
judgment
in
accordance
therewith;
2. Recommit the same to commissioners
for further report of facts;
3. Set aside the report and appoint new
commissioners; or
4. Accept the report in part and reject it in
part.
Section 10: Rights of Plaintiff upon
Judgment and Payment
Upon payment by the plaintiff of
the compensation fixed by the judgment,
he shall have the right to enter upon the
property expropriated and to appropriate
for the public purpose defined in the
complaint, or to retain it if he has previously
entered it after having given a deposit.
Section 13: Effect of Recording of
Judgment.
The
judgment
entered
in
expropriation
proceedings
shall
state
definitely, by an adequate description, the
particular property or interest therein
expropriated, and the nature of the public use
or purpose for which it is expropriated. When

real estate is expropriated, a certified


copy of such judgment shall be recorded
in the registry of deeds of the place in
which the property is situated, and its
effect shall be to vest in the plaintiff the
title to the real estate so described for
such public use or purpose.
Multiple Appeals in Expropriation
Proceedings; Record on Appeal is
Indispensable
Jurisprudence
recognizes
the
existence
of multiple appeals in
expropriation proceedings because there
are two stages in every action for
expropriation. The reason for multiple
appeals is to enable the rest of the case to
proceed in the event that a separate and
distinct issue is resolved by the trial
court and held to be final. In such a case,
a record on appeal is indispensable since
only a particular incident of the case is
brought to the appellate court for
resolution with the rest of the proceedings
remaining within the jurisdiction of the
trial
court
(Riguera
2013,
citing
Marinduque Mining and Ind. Corp. vs.
NAPOCOR, G.R. No. 161219, 6 October
2008).
Q: The Republic of the Philippines,
through the department of Public Works
and Highways (DPWH) filed with the RTC a
complaint for the expropriation of the
parcel of land owned by Jovito. The land is
to be used as an extension of the national
highway. Attached to the complaint is a
bank certificate showing that there is, on
deposit with the Land Bank of the
Philippines, an amount equivalent to the
assessed value of the property. Then
DPWH filed a motion for the issuance of a
writ of possession. Jovito filed a motion to
dismiss the complaint on the ground that
there are other properties which would
better serve the purpose.

Will Jovitos motion to dismiss prosper?


A:
NO. The present Rule of Procedure
governing expropriation (Rule 67), as
amended by the 1997 Rules of Civil
Procedure, requires the defendant to file an
Answer, which must be filed on or before the
time stated in the summons. Defendants
objectionsand defenses should be pleaded in
his Answer not in a motion.
Q: As judge, will you grant the writ of
possession prayed for by DPWH? Explain.
A: NO. The expropriation here is governed by
Rep. Act No. 8974 which requires 100%
payment of the zonal value of the property as
determined by the BIR, to be the amount
deposited. Before such deposit is made, the
national government thru the DPWH has no
right to take the possession of the property
under expropriation.

RULE 68
FORECLOSURE OF REAL ESTATE
MORTGAGE
JUDGMENT
ON
FORECLOSURE
FOR
PAYMENT OR SALE
a. Ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation,including
interest
and
other
charges
as approved by the
court, and costs;
b. Render judgment for the sum so found
due and order that the same be paid to
the court or to judgment oblige
Within what period:
Within a period of not less than 90 days nor
more than 120 days from entry of judgment.
In default of such payment:
Such property shall be sold at public auction
to satisfy the judgment.

PROPERTY;

due forthe principal or interest and other


valid charges.

Effect when defendant fails to pay the


amount of the judgment within the
period specified
1. The court, upon motion, shall order
the property to be sold in the manner and
underthe provisions of Rule 39 and
other regulations governing sales of real
estate under execution.

Exception:
If property cannot be sold in portions without
prejudice to the parties:
a. Whole shall be ordered to be sold in
the first instance
b. The entire debt and costs shall be
paid, if the proceeds of the sale be
sufficient, therefore, there being a
rebate of interest where such rebate is
proper.

SALE OF
EFFECT

MORTGAGED

2. Sale shall not affect the rights of


persons holding prior encumbrances
upon theproperty or a part thereof.
Effect of Confirmation of the Sale
a. divest the rights in the property of
all the parties to the action; AND
b.
vest their rights in the purchaser,
subject to such rights of redemption as
may be allowedby law.
Section 4: Disposition of Proceeds of
Sale
a. It shall be paid to the person
foreclosing
themortgage
after
deducting the costs of the sale.
b. When there is a balance or residue, it
shall be paid to junior encumbrances
in the order oftheir priority to be
ascertained by the court.
c.
If none, or should there be a
residue after payment to them, then,
to the mortgagor.
Section 5: How sale is to proceed in
case the debt is not all due
General rule:
1. A sufficient portion of the property is
sold to pay the total amount and the costs
due.
2. Thereafter sale shall terminate.
3. Afterwards, court may, on motion, order
more to be sold as often as more becomes

Section 6: Defficiency of Judgment


The court, upon motion, shall render
judgment against the defendant for any
balance (for which, by the record of the case,
he may be personally liable to the plaintiff)
1. If balance is all due at the time of the
rendition of the judgment: execution may
issue immediately.
2. Otherwise, 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.
Instances

when

court

cannot

render

deficiency judgment:
1. Where the debtor-mortgagor is a nonresident and who at the time of the filing
of the action for foreclosure and during
the pendency of the proceedings was
outside the Philippines, it is believed that
a deficiency judgment
under
sec.6
would not be procedurally feasible. A
deficiency judgment is by nature in
personam and jurisdiction over the
person is mandatory. Having been outside
the country, jurisdiction over his person
could not have been acquired.(Riano)
2. The mortgage was executed by a third
person to secure an obligation of a
debtor,such third person not having

assumed personal liability


payment of debt (Regalado).

for

the

3. A different rule applies in the case of a


mortgage debt due from the estate of a
deceased mortgagor since it is under
Sec. 7, Rule 86 (Regalado).
Section 7: Registration
If no right of redemption exists, the
certificate of title in the name of the
mortgagor shall be cancelled and a new
one issued in the name of the purchaser.
If right of redemption exists:
a. Certificate of title in the name of the
mortgagor shall not be cancelled;
b. Certificate of sale and the order
confirming the sale shall be registered;
c. A brief memorandum thereof shall be
made by the registrar of deeds upon
the certificate of title.
If property is redeemed:
a. Deed of redemption shall be registered
with the registry of deeds;
b. A brief memorandum thereof shall be
made by the registrar of deeds.
If property is NOT redeemed:
a. The final deed of sale shall be
registered with the registry of deeds;
b. The certificate of title in the name of
the mortgagor shall be cancelled and a
new one issued in the name of the
purchaser.
JUDICIAL
FORECLOSUR
E
Requires court
intervention
There is only an
equity
of
redemption
Governed
by

Rule 68
There could be
a
deficiency
judgment

Period
of
redemption
starts from the
finality of the
judgment until
order
of
confirmation
Decisions
are
appealable

EQUITY
REDEMPTION
Right
of
defendant
mortgagor
to
extinguish
the
mortgage
and
retain ownership
of the property by
paying the debt
within
90-120
days
after
the
entry of judgment
or even after the
foreclosure
sale
but
prior
to
confirmation.

EXTRA-JUDICIAL
FORECLOSURE
No
court
intervention
is
necessary
Right
of
redemption exists
Governed

by

Act

Period is 90-120
days after entry of
judgment or even
after
the

3135
No
deficiency
judgment because
there is no judicial
hearing
but
recovery
of
deficiency
is
allowed
Period to redeem
starts from the
date of registration
of certificate of sale

Decisions are not


appealable. It is
immediately
executory
RIGHT OF
REDEMPTION
Right
of
the
debtor,
his
successor
in
interest or any
judicial creditor of
said debtor or any
person having a
lien
on
the
property
subsequent to the
mortgage or deed
of trust under
which
the
property is sold to
redeem
the
property within 1
year
from
registration of the
Sheriffs
certificate
of
foreclosure sale.

Period is 1 year
from
date
of

foreclosure
sale
but
prior
to
confirmation
Governed by Rule
68

registration
of
certificate of sale.
Governed by Secs.
29-31 of Rule 39

Q: (a) RC filed a complaint for annulment


of the foreclosure sale against Bank V. In
its answer, Bank V set up a counterclaim
for actual damages and litigation expenses.
RC filed a motion to dismiss the
counterclaim on the ground that Bank Vs
Answer with Counterclaim was not
accompanied by a certification against
forum shopping. Rule.
A: A certification against forum shopping
is required only in initiatory pleadings. In
this case, the counterclaim pleaded in the
defendants Answer appears to have arisen
from
the
plaintiffs
complaint
or
compulsory in nature and thus, may not
be regarded as an initiatory pleading.
The absence thereof in the Banks
Answer is not a fatal defect. Therefore, the
motion to dismiss on the ground raised
lacks merit and should be denied (UST v.
Suria, 294 SCRA 382 [1998]).
On
the
other
hand,
if
the
counterclaimraised by the defendant
Banks Answer was not predicated on the
plaintiffs claim or cause of action, it is
considered a permissive counterclaim. In
which case, tit would partake an initiatory
pleading which requires a certification
against forum shopping. Correspondingly,
the motion to dismiss based on lack of the
required certificate against forum shopping
should be granted.

RULE 69
PARTITION

PARTITION
The process whereby the co-ownership over
real property is terminated by vesting in
each of the co-owners a specific property or
allotment of the proceeds or value of the
property (Riguera 2013)
Who may file complaint; Who should be
made Defendants
Parties
All co-owners are indispensableparties.
Creditors
or
assignees of
co-owners
may intervene and object to a partition
effected without their concurrence. But
they cannot impugn a partition already
executed.
Unless:
1. There has been fraud; or
2. In case it was made notwithstanding
aformal opposition presented to prevent it.
However, this right to intervene is not
absolute and intervenor must show a
legitimate and proper interest in the subject
property. (De Borja v. Lugo, G.R. No. L-45297,
July 16, 1937)
Non-Inclusion of a Co-Owner
1. Before Judgment - Not a ground for
motion to dismiss; remedy is to file a
motion to include the party.
2. After Judgment - Judgment is void
because co-owners are indispensable
parties.
MATTERS
TO
ALLEGE
COMPLAINT FOR PARTITION

IN

THE

Contents of a Complaint:
1. NATURE AND EXTENT of his title;
2. ADEQUATE DESCRIPTION of the real
estate of which partition is demanded; and

3. Join as DEFENDANTS all


persons interested in the property.

other

Two Stages in every Action for Partition


1. Determination of Co-ownership
2. Accounting
ORDER
OF
PARTITION
PARTITION BY AGREEMENT

AND

When Partition is Proper:


When after trial, thecourt finds that the
plaintiff has right to the property
subject to partition. After the order of
partition, the parties may make the
partition by proper instruments of
conveyance PROVIDED:
1. the court confirmed the partition;
and
2. all parties agreed thereto.
A final order decreeing partition and
accounting may be appealed by any party
aggrieved thereby.
The aggrieved party shall file a notice of
appeal and a record on appeal within 30
days from notice of the order. A record on
appeal is required since there may be a
subsequent appeal from the judgment of
partition and/or accounting for rent and
profits under Sec. 7 and 8 Rule 69
(Riguera 2013, citing Miranda vs. CA, 71
SCRA 295).
Section
3:
Partition
by
the
Commissioners.
If the parties are unable to agree upon
the partition, the court shall appoint not
more than three (3) competent and
disinterested persons as commissioner
to
make
the
partition,
commanding them to set off to the
plaintiff and to each party in interest such
part and proportion of the property as the
court shall direct.

Section 5: Assignment or sale of real


estate by commissioners.
If the commissioners determine that the
property cannot
be
divided
without
prejudice to the interests of the parties, the
court may order that the property be
assigned to one of the parties willing to take
the same, provided he pays to the other
parties such amounts as the commissioners
deem equitable.
Instead of being assigned, an interested
party may ask that the property be sold, in
which case the court shall order the
commissioners to sell the property at a
public sale.
Section 6: Commissioners Report
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, copies shall
be served by the clerk of court upon all
interested parties with notice that they are
allowed 10days within which to file
objections to the findings of the report.
Section 7: Court
Action
upon
Commissioners Report
Court, may upon hearing:
a. Accept the report and render judgment
in accordance with the same.
b. The court may instead of accepting the
report,
recommit
the
same
to
thecommissioners for further report of
facts.
c. It may also accept the report in part or
rejectthe report in part or it may
render such judgment that shall
effectuate a fair and just partition.
Section 11: Judgment and its Effects
Judgment shall state definitely, by metes
and bounds and adequate description, the
particular portion of the real estate assigned
to each party, and the effect of the judgment
shall be to vest in each party to the action in

severalty the portion of the real estate


assigned.
If the whole property is assigned to one
of the parties, the judgment shall state
the fact of such payment and of the
assignment of the real estate to the party
making the payment, and the effect of
judgment is to vest in the party making
the payment the whole of the real estate
free from any interest on the part of the
other parties to the action.
If Property is sold and sale confirmed
by the court, the judgment shall state the
name of the purchaser and a definite
description of the parcels of real estate
sold and the effect of the judgment shall
be to vest the real estate in the
purchaser free from the claims of any
of the parties to the action.
Section 13: Partition of Personal
Property
An action for partition admits multiple
appeals. There are actually three stages in
the action, each of which could be the
subject of appeal, to wit:
1. the order determining the propriety
of the partition;
2. the judgment as to the fruits and
income of the property; and
3. the judgment of partition (Riano,
p.596, supra)
PRESCRIPTION OF ACTION
When can Partition be made:
General rule: It can be made anytime
and the right to demand partition is
IMPRESCRIPTIBLE.
Exception: If a co-owner asserts adverse
title to the property in which case the
period of prescription runs from such
time of assertion of the adverse title.

Q: Florencio sued Guillermo for partition of a


property they owned in common. Guillermo
filed a motion to dismiss the complaint
because Florencio failed to implead Herando
and Inocencio, the other co-owners of the
property. As Judge, will you grant the
motion to dimiss?
A: NO, because the non-joinder of parties is
not a ground for dismissal of action (Rule 3,
Sec. 11). The motion to dismiss should be
denied.

RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
FORCIBLE ENTRY
A summary proceeding for the recovery of
possession by a person who has been
deprived of possession of any land or
building by (FITSS) force, intimidation,
threat, strategy or stealth.
UNLAWFUL DETAINER
The summary proceeding for the recovery of
possession
against
a
person whose
possession was initially lawful but which
later on became unlawful by virtue of
the expiration or termination of the right
to hold possession by virtue of an express
or implied contract or because of the lessees
failure to pay or comply with the conditions
of the lease.
Q: Petitioner and respondent lived in a house
in the expense of respondent while the lot is
registered at the name of the former. They
executed a contract of lease, MOA and special
power of attorney. When their relationship
became sour after 16 years of living together,
respondent filed a complaint for unlawful
detainer against the petitioner when the latter
does not vacate the property despite
demands. Can the respondent eject the

petitioner from the property through


filing of unlawful detainer case?
A: No, because under Section 1 of Rule 70
of the Rules of Court, a lessor, vendor,
vendee, or other person against whom the
possession of any land or building is
unlawfully withheld after the expiration or
termination
of the
right
to
hold
possession, by virtue of any contract,
express
or
implied,
or
the
legal
representatives or assigns of any such
lessor, vendor, vendee, or other person,
may, at any time within one (1) year after
such unlawful deprivation or withholding
or possession, bring an action in the
proper Municipal Trial Court against the
person or persons unlawfully withholding
or depriving of possession, or any person
or persons claiming under them, for the
restitution of such possession together
with damages and costs.
A complaint sufficiently alleges a cause of
action for unlawful detainer if it recites the
following:
1. Initially, possession of property by the
defendant was by contract with or by
tolerance of the plaintiff;
2. Eventually, such possession became
illegal upon notice by plaintiff to defendant
of the termination of the latters right of
possession;
3. Thereafter, the defendant remained in
possession of the property and deprived
the plaintiff of the enjoyment thereof; and
4.Within one year from the last demand on
defendant to vacate the property (Fullido v.
Grilli, Feb. 29, 2016)
FORCIBLE
ENTRY
Possession

of

UNLAWFUL
DETAINER
Possession

of

land is unlawful
from
the
beginning due to
force,
intimidation,
threat,
strategy
or stealth (FITSS)
No requirement of
previous demand
for defendant to
vacate
the
premises
Plaintiff
must
prove that he was
in prior physical
possession until
he was deprived
thereof by the
defendant
1-year
period
counted
from
date of actual
entry or when
plaintiff learned
thereof.

property
defendant
is
inceptively lawful
but
become
illegal by reason
of termination of
right
of
possession.
Demand
is
jurisdictional

Plaintiff need not


have
been
in
prior
physical
possession

1-year
period
from date of last
demand

Three (3) Kinds of Possessory Actions of


Real Property:
1. Accion Interdictal - summary action for
forcible entry and detainer. It seeks the
recovery oaACf physical possession only.
It is brought within 1 year in the
Municipal Trial Court.
2. Accion Publiciana - plenary action for
the recovery of right to possess.
3. Accion Reivindicatoria - seeks the
recovery of ownership and possession.
HOW TO DETERMINE JURISDICTION IN
ACCION
INTERDICTAL,
ACCION
PUBLICIANA
AND
ACCION
REINVINDICATORIA
ACCION
INTERDICT

ACCION
PUBLICIA

ACCION
REINVINDI

AL
Summary
action
for
the
recovery of
physical
possession
where the
dispossessi
on has not
lasted
for
more than
1 year
All cases of
forcible
entry and
unlawful
detainer,
irrespective
of
the
amount of
damages or
unpaid
rentals
sought
to
be
recovered
should be
brought to
the MTC.

NA
A
plenary
action
for
the
recovery of
the
real
right
of
possession
when
the
dispossessi
on
has
lasted
for
more than
1 year.
RTC
has
jurisdiction
if the value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdiction
if the value
of
the
property
does
not
exceed the
above
amounts.

CATORIA
An
action
for
the
recovery of
ownership,
which
necessarily
includes
the
recovery of
possession.

RTC
has
jurisdictio
n if the
value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdictio
n if the
value of
the
property
does not
exceed the
above
amounts.

NOTE: RA 7691 expanded the jurisdiction


of the MTCs. It vests MTCs with exclusive
original jurisdiction over real actions
where the assessed value
does
not
exceed PHP 20,000.00 and PHP 50,000.00
in Metro Manila.
Lessor must proceed against lessee only
after demand.
Demand may either be:

1. to pay and vacate; or


2. to comply with the conditions of the
lease and vacate.
When prior demand in unlawful detainer
actions not required:
a. When purpose of action is to terminate
lease because of expiry of term and not
because of failure to pay rental or to
comply with terms of lease contract;
b. Purpose of suit is not for ejectment but
for enforcement of terms of contract;
c. When defendant is not a tenant but a
mere intruder
In all other cases, there must be a
demand:
1.To pay or to comply with the conditions
ofthe lease; and
2. To vacate by written notice on the person
inthe premises or by posting such notice on
the premises if no person is found thereon
and this is a condition precedent to the filing
of the case.
ORAL demand is not permitted.
3. If demand is in the alternative (pay or
vacate),
this
is
NOT
the
demand
contemplated by the Rules.
NOTE: The right of the owner to file
ejectmentsuit is limited by PD 1517.
Where the owner intends to sell the
property to third party, the legitimate
tenant of at least 10 years may not be
ejected but only if he decides to purchase
the property intended for sale by its owner.
The preemptive right of the lessee exists only
in respect of the urban land under lease on
which the tenant has built his home.

When
the
defendant
raises
the
issue of ownership in his pleadings and
the question of possession cannot be
resolved without deciding the issue of
ownership, the latter issue shall be
resolved
only
to
determine
the
issue of possession.
NOTE: A forcible entry/unlawful detainer
action has an entirely different subject
matter from that of an action for
reconveyance.
The
former
involves
material possession, and the latter,
ownership. Thus, the pendency of an
action for reconveyance does not divest
the MTC of its jurisdiction over an action
for FE/UD, nor will it preclude execution
of judgment in the ejectment case where
the only issue involved is material
possession.
Section 1: Who may institute the
action and when; against whom the
action may be maintained
1.
The action of forcible entry and
detainer may be maintained only against
one in possessionat the commencement of
the action;
2. Tenant with right of possession may
bringaction against another tenant;
3. Vendor may bring action for ejectment
against vendee upon failure to pay the
installments;
3. Forcible entry and unlawful detainer lie
evenagainst the very owner of property.
NOTE: Amount of rents and damages
claimed does not affect the jurisdiction of
the municipal court because they are
only incidental or accessory to the main
action (Lao Seng Hian v. Lopez, G.R. No.
L-1950, May 16, 1949).
But if only rents or damages are claimed
in an ordinary action, the action is

personal
and
the
amount
claimed
determines whether it falls within the
jurisdiction of RTC or MTC.
Section 4: Pleadings Allowed.
1. Complaint
2. Compulsory counterclaims
3. Cross-claim
4. Answer thereto
Section 5: Action on the complaint
Dismiss case outright if any ground for
dismissal of civil action is apparent therein
or issue summons if no ground for dismissal
is found.
WHEN DEMAND IS NECESSARY
When prior demand in unlawful detainer
actions not required:
a. When purpose of action is to terminate
lease because expiry of term and not
because of failure to pay rental or to
comply with terms of lease contract;
b. Purpose of suit is not for ejectment but
for enforcement of terms of contract; and
c. When defendant is not a tenant but a
mere intruder.
In all other cases, there must be a
demand:
1. To pay or to comply with the conditions of
the lease; and
2. To vacate by written notice on the person
in the premises or by posting such notice on
thepremises if no person is found thereon
and this is a condition precedent to the filing
of the case; ORAL demand is not permitted.
If demand is in the alternative (pay OR
vacate), this is NOT the demand
contemplated by the Rules.
Section 13: Prohibitefd Pleadings and
Motions.

1. Motion to dismiss the complaint


except on the grounds of lack of
jurisdiction over thesubject matter,
or failure to comply with Sec. 12;
2. Motion for bill of particulars;
3. Motion
for
postponements
which are dilatory;
4. Motion for reconsideration or new
trial, or for reopening of trial;
5. Motion for extension of time to file
pleading, affidavits or any other
paper;
6. Motion to declare the defendant in
default;
7. Third-party complaints;
8. Memoranda;
9. Petition for relief from judgment;
10. Intervention;
11. Reply;
12. Certiorari,
mandamus,
or
prohibition
against
any
interlocutory order issued by the
court.
Section 15: Preliminary Injunction and
Preliminary Mandatiry Injunction.
PRELIMINARY INJUNCTION
The court may grant preliminary
injunction in accordance with the
provisions of Rule 58 to prevent the
defendant from committing further acts of
dispossession against the plaintiff.
PRELIMINARY
MANDATORY
INJUNCTION
A possessor deprived of his possession
through forcible entry or unlawful
detainer may, within 5 days from filing
of
the complaint, present a
motion, in the action for forcible
entry
or unlawful detainer, for the
issuance of a writ of preliminary
mandatory injunction to restore him in
his possession, and the same shall be
decided within 30 days from the filing
thereof (Riguera 2013).

Preliminary Mandatory Injunction in case


of Appeal
Upon motion of the plaintiff and within 10
days from the perfection of the appeal to the
RTC, the latter may issue a writ of
preliminary mandatory injunction to restore
the plaintiff in possession if the court is
satisfied that the defendants appeal is
frivolous or dilatory, or that the
plaintiffs appeal is prima facie meritorious
(Riguera 2013, citing Sec. 20)
Section
16:
Resolving
Defense
of
Ownership
When the defendant raises the defense of
ownership in his pleadings and the question
of possession cannot be resolved without
deciding the issue of ownership, the
ownership shall be resolved
only
to
determine the issue of possession.
Q: Is formal contract a prerequisite in
unlawful detainer?
A:NO. The existence of a formal contract is
NOT necessary in unlawful detainer. Even
if there is no formal contract between the
parties, there can still be an unlawful
detainer because implied contracts are
covered
by
ejectment
proceedings.
Possession by tolerance creates an implied
promise to vacate the premises upon
demand by the owner (Peran v. CFI of
Sorsogon, G.R. No. 57259, October 13, 1983).
Section 19: How to Stay the Immediate
Execution of Judgment
General rule: Judgment against
defendant is immediately executor.

the

Exception:
When the following concur:
1. The defendant perfects an appeal;
2. Defendant
files
a
sufficient
supersedeasbond, to pay the rents,
damages and cost accruing down to

the time of judgment appealed from;


and
3. Defendant deposits with the court
the amount of rents due from time to
time underthe contract, or in the
absence of contract, the reasonable
value of the use and occupation of
the premises.
In forcible entry, the amount of the
supersedeas bond and the amounts to
be periodically deposited shall be the
reasonable value of the use
and
occupancy of
the
premises
as
determined by the court.
In unlawful detainer, the amount of the
bond and periodic deposit of rentals shall
be that stated in the lease contract.
(Regalado)
Q: The spouses Juan reside in Quezon
City. With their lottery winnings, they
purchased a parcel of land in Tagaytay City
for P100,000.00. In a recent trip to their
Tagaytay property, they were surprised to
see hastily assembled shelters of light
materials occupied by several families of
informal settlers who were not there when
they last visited the property three (3)
months ago.
To rid the spouses Tagaytay property of
these informal settlers, briefly discuss
the legal remedy you, as their counsel,
would use; the steps you would take;
the court where you would file your
remedy if the need arises; and the
reason/s for your actions.
A: As counsel for spouses Juan, I will file a
special civil action for Forcible Entry. The
Rules of Court provide that a person
deprived of the possession of any land or
building by force, intimidation, threat,
strategy, or stealth may at any time within
1 year after such withholding of

possession bring an action in the proper


Municipal Trial Court where the property is
located. This action which is summary in
nature seeks to recover the possession of the
property from the defendant which was
illegally withheld by the latter (Section 1, Rule
70, Rules of Court).
An ejectment case is designed to restore,
through summary proceedings, the physical
possession of any land or building to one who
has been illegally deprived of such
possession,
without
prejudice
to
the
settlement of partiesopposing claims of
juridical possession in an appropriate
proceedings (Heirs of Agapatio T. Olarte and
Angela A. Olarte et. al. vs. Office of the
President of the Philippines et al., G.R. No.
177995, June 15, 2011, Villarama, Jr., J.).
In Abad vs. Farrales, G.R. No. 178635, April
11, 2011, the Supreme Court held that two
allegations are indispensable in actions for
forcible entry to enable first level courts to
acquire jurisdiction over them: first, that the
plaintiff had prior physical possession of the
property; and, second, that the defendant
deprived him of such possession by means of
force, intimidation, threats, strategy, or
stealth.
However, before instituting the said action, I
will first endeavor to amicably settle the
controversy with the informal settlers before
the
appropriate
Lupon
or
Barangay
Chairman. If there is no agreement reached
after mediation and conciliation under the
Katarungang Pambarangay Law, I will secure
a certificate to file action and file the
complaint for ejectment before the MTC of
Tagaytay City where the property is located
since ejectment suit is a real action
regardless of the value of the property to be
recovered or claim for unpaid rentals (BP 129
and RULE 4, Section 1 of the Revised Rules on
Civil Procedure).

In the aforementioned complaint, I will


allege that Spouses Juan had prior
physical
possession
and
that
the
dispossession
was
due
to
force,
intimidation and stealth. The complaint
will likewise show that the action was
commenced within a period of one (10 year
from unlawful deprivation of possession,
and that the Spouses Juan is entitled to
restitution of possession together with
damage costs.
Q: Anabel filed a complaint against B for
unlawful detainer before the Municipal
Trial Court (MTC) of Candaba, Pampanga.
After the issues had been joined, the MTC
dismissed the complaint for lack of
jurisdiction after noting that the action
was one for accion publiciana.
Anabel appealed the dismissal to the RTC
which affirmed it and accordingly
dismissed her appeal. She elevates the
case to the Court of Appeals, which
remands the case to the RTC. Is the
appellate court correct? Explain.
A: YES, the Court of Appeals is correct in
remanding the case to the RTC for the
latter to try the same on the merits. The
RTC, having jurisdiction over the subject
matter of the case appealed from MTC
should try the case on the merits as if the
case was originally filed with it, and not
just to affirm the dismissal of the case.
R.A. No. 7691, however, vested jurisdiction
over specified accion publiciana with
courts of the first level (Metropolitan Trial
Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts) in cases
where the assessed value of the real
property
involved
does
not exceed
P20,000.00 outside Metro Manila, or in
Metro Manila, where such value does not
exceed P50,000.00.

Q: Filomeno brought an action in the


Metropolitan Trial Court (METC) of Pasay City
against Marcelino pleading two causes of
action. The first was a demand for the
recovery of physical possession of a parcel of
land situated in Pasay City with an assessed
value of 40,000; the second was a claim for
damages of 500,000 for Marcelinos unlawful
retention of the property. Marcelino filed a
motion to dismiss on the ground that the
total amount involved, which is 540,000, is
beyond the jurisdiction of the MeTC. Is
Marcelino correct?
A: No, Metropolitan or Municipal trial Courts
have exclusive jurisdiction over a complaint
for forcible entry and unlawful detainer
regardless of the amount of the claim for
damages (Sec. 33 [2], B.P. 129).
Also, Sec. 3, Rule 70 gives jurisdiction to the
said courts irrespective of the amount of
damages. This is the same provision in the
Revised Rules of Summary Procedure that
governs all ejectment cases (Sec. 1[A][1],
Revised Rule on Summary Procedure). The
Rule, however, refers to the recovery of a
reasonable amount of damages. In this case,
the property is worth only P40,000, but the
claim for damages is P500,000.
Q:X files an unlawful detainer case against Y
before the appropriate Metropolitan Trial
Court. In his answer, Y avers as a special and
affirmative defense that he is a tenant of Xs
deceased father in whose name the property
remains registered. What should the court
do? Explain briefly.
A: The court should hold a preliminary
conference not later than thirty (30) days
after the defendants Answer was filed, since
the case is governed by summary procedure
under Rule 70, Rules of Court, where a Reply
is not allowed. The court should receive
evidence to determine the allegations of
tenancy. If tenancy had in fact been shown to

be the real issue, the court should dismiss


the case for lack of jurisdiction. If it would
appear that Ys occupancy of the subject
property was one of agricultural tenancy,
which is governed by agrarian laws, the
court should dismiss the case because it
has no jurisdiction over agricultural
tenancy cases. Defendants allegation that
he is a tenant of plaintiffs deceased
father suggests that the case is one of
landlord-tenantrelation andtherefore, not
within the jurisdiction of ordinary courts.
Q: Ben sold a parcel of land to Del with
right to repurchase within one (1) year.
Ben remained in possession of the
property. When Ben failed to repurchase
the same, title was consolidated in favor of
Del. Despite demand, Ben refused to
vacate the land, constraining Del to file a
complaint for unlawful detainer. In his
defense, Ben averred that the case should
be dismissed because Del had never been
in possession of the property. Is Ben
correct?
A: No, for unlawful detainer, the defendant
need not have been in prior possession of
the property. This is upon the theory that
the vendee steps into the shoes of the
vendor and succeeds to his rights and
interests. In contemplation of law, the
vendees possession is that of the vendors
(Maninang vs. C.A., G.R. No. 121719, 16
September 1999; Dy Sun vs. Brillantes, 93
Phil. 175 [1953]); (Pharma Industries, Inc.,
vs. Pajarillaga, G.R. No. L-53788, 17
October 1980).

RULE 71
CONTEMPT
CONTEMPT
The disobedience to the court by acting
in opposition to its authority, justice and
dignity.

KINDS OF CONTEMPT
According to Manner of commission
1. DIRECT CONTEMPT is misbehavior in
the presence of or so near a court as to
obstructor interrupt the court proceeding.
2.
INDIRECT CONTEMPT is one not
committed in the presence of the court. It is
an act done at adistance which tends to
belittle, degrade, obstruct or embarrass the
court and justice.
According to their Nature:
1.
CRIMINAL
CONTEMPT conduct
directed against the authority and dignity of
the courtor a judge. It is obstruction of
the administration of justice which tends to
bring the court to disrespect.
2. CIVIL CONTEMPT the failure to do
somethingordered by the court to be done
for thebenefit of the opposing party.
Functions of Contempt
1. Vindication of public interest by
punishment of contemptuous court
2. Coercion to compel the contempt or to do
what the law requires him to uphold the
power of the court and to secure rights of
the parties to a suit awarded by the court.
Purpose of Contempt
The reason behind this power to punish for
contempt is that respect of the courts
guarantees the stability of their institution
(Riguera 2013,citing Jaime R. Nuevas,
Remedial Law Reviewer 321 [1964]).
Acts
constituting
Direct
Contempt
(contempt in facie curiae)
1. Misbehavior in the presence or so near
the court as to obstruct or interrupt
the proceedings before the same;
2. Disrespect toward the court;
3. Offensive personalities towards others;

4. Refusal to be sworn as witness or to


answeras a witness; and
5.
Refusal
to
subscribe
an
affidavit
or deposition when lawfully
required to do so.
An imputation in a pleading of gross
ignorance against a court or its judge,
especially in the absence of any evidence,
is a serious allegation, and constitutes
direct contempt of court. It is settled that
derogatory,
offensive
or
malicious
statements contained in pleadings or
written submissions presented to the same
court or judge in which the proceedings
are pending are treated as direct contempt
because they are equivalent to a
misbehavior committed in the presence of
or so near a court of judge as to interrupt
the administration of justice. This is true,
even if the derogatory, offensive or
malicious statements are not read in open
court.(Habawel vs. CTA 8 June 2004)
Penalty for Direct Contempt
1. If the act constituting direct
contempt was committed against
the RTC or a court of equivalent
or higher rank the penalty is a
fine not exceeding two thousand
pesos or imprisonment not
exceeding 10 days, or both.
2. If the act constituting direct
contempt was committed against
a lower court - the penalty is a
fine not exceeding two hundred
pesos or imprisonment of not
exceeding 1 day, or both
Indirect Contempt
a. Not committed in the presence of
the court;
b. Punished only after hearing
complaint in writing or motion or
party or order of courtrequiring

person to appear and explain,


opportunity to appear and show cause.
Grounds for Indirect Contempt
1. Misbehavior of an officer of a court in the
performance of his official duties or in
hisofficial transactions;
2. Disobedience of or resistance to a lawful
writ, process, order or judgment of a court;
3. Any
abuse
of
or
any
unlawful
interferencewith
the
processes
or
proceedings of a court not constituting
direct contempt;
4. Any improper conduct tending, directly
orindirectly, to impede, obstruct, or
degrade the administration of justice;
5. Assuming to be an attorney or officer of a
court,
and
acting
as
such
withoutauthority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of
aperson or property in the custody of an
officer by virtue of an order or process of a
court held by him.
Requisites before the Accused may be
Punished for Indirect Contempt:
1. A charge in writing to be filed
2. An opportunity for the person charged to
appear and explain his conduct.
3. To be heard by himself or counsel.
Criminal Contempt
Conduct directed against
orauthority of the court.

the

dignity

Purpose:
To vindicate authority of the court and
protect its outraged dignity.
If accused is acquitted, there can be no
appeal.
Civil Contempt
Failure to do something ordered by the
court for the benefit of a party.

Purpose:
To protect and enforce civil rights and
remedies of the litigants.
If judgment is for respondent, there can be
an appeal.
Remedy against Direct Contempt
Petition for Certiorari or Prohibition
directed against the court which
adjudge him in direct contempt.
Remedy
against
Indirect
ContemptAppeal (Notice of Appeal) from
judgment or final order in the same
manner as in criminal cases. The appeal
shall not stay the judgment, unless the
offender files a bond in an amount fixed
by the court from which the appeal is
taken.
Section 4: How Contempt Proceedings
are Commenced:
1. By order or other formal charge by
the court requiring the respondent
to show cause whyhe should not
be punished for contempt (motu
proprio); or
2. By a verified petition with
supporting
particulars
and
certified
true
copies
of
thenecessary
documents
and
papers (independent action.
ACTS
DEEMED
PUNISHABLE
AS
INDIRECT CONTEMPT
1. Misbehavior of an Officer of the
court in theperformance of his
official duties or in his official
transactions.
2. Disobedience of or a resistance to
a lawfulwrit, process, order, or
judgment of the court, including
the act of a person who after being

3.

4.

5.

6.
7.

dispossess or ejected from a real


property by the judgment or process
of
any
court
of
competent
jurisdiction, enters or attempts or
induces another to enter into or upon
such real property, for the purposes
of executing acts of ownership, or
in
any manner disturb the
possession given to the person
adjudged to be entitled thereto.
Any abuse of or any unlawful
interferencewith
the
process
or
proceedings of a court, or degrade the
administration of justice.
Any improper conduct tending,
directly orindirectly, to impede,
obstruct,
or
degrade
the
administration of justice.
Assuming to be an attorney or an
officer of acourt, and acting without
such authority.
Failure to obey subpoena duly served.
The rescue, or attempted rescue of a
person or property in the custody of
an officer by virtue of an order or
process of a court heldby
him
(Riguera,
Primer
Reviewer
on
Remedial Law).

Section 8: When Imprisonments shall be


imposed.
When the contempt consists in the refusal
or omission to do an act which is yet in the
power of the
respondent
to
perform,
he may be imprisoned by the order of the
court concerned until he performs it.
CONTEMPT AGAINST QUASI-JUDICIAL
ENTITIES
Rule 71
applies
suppletorily
to
contempt committed against persons,
entities, bodies or agencies exercising
judicial functions.
The RTC of the place where the contempt
was committed shall have the jurisdiction
over such charges.

The
persons,
entities,
bodies
or
agencies
exercising
quasi-judicial
functions does not have the power to
contempt. Contempt power is essentially
of a judicial nature (Negros Oriental ll
Electric
Cooperative
v.
Sangguniang
Panlunsod of Dumaguete G.R. No. 72492,
5 Nov 1987)

EVIDENCE
RULE 128
GENERAL PRINCIPLES
Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the
truth respecting a matter of fact (Sec. 1, Rule 128).
Component Elements
a. Evidence as a means of ascertainment -refer to (a) the evidentiary fact; or, (b) the
manner of bringing this fact forward before the tribunal; or, (c) both.
b. Sanctioned by these rules
-means allowed under these rules or more accurately NOT excluded by these rules. The
rules can only refer to the rules on relevancy and admission.
c. In a JUDICIAL PROCEEDING.
d. The truth respecting a matter of fact -refers to an issue of fact and is both substantive
(determines what facts need to be established) and procedural (the manner of proving
these facts or acts) (Herrera).
The Rules of Evidence determine the following:
4. The relevancy of facts
5. The proof of facts
6. The production of proof of relevant facts
APPLICABILITY OF THE RULES
ON EVIDENCE

General Rule:
The rules of evidence, being partsof the Rules of
Court, apply only to judicial proceedings (Sec. 1, Rule 128).
Exception: When the law specifically providesotherwise such as Section 4, Rule 1, 1997 Rules
of Civil Procedure on non-applicability of the Rules of Court.
Instances where rules of evidence DO NOT apply to judicial proceedings:
1. In a civil case covered by the Rule on Summary Procedure since there is no trial;
2. Rules on Summary Procedure in criminal cases, where the witnesses admit their
affidavits and counter-affidavits, subject only. to cross-examination;
3. Agrarian cases;
4. Rules regarding the testimony of witnesses from examinations, etc., in cases under the
MTC (where the parties merely submit theirposition papers and their witnesses affidavits
and counter-affidavits
SCOPE OF THE RULES ON EVIDENCE
(Sec. 2)
General Rule: The rules of evidence shall be thesame in all courts and in all trials and
hearings (Principle of Uniformity).

Exception: When the law or the Rules of Courtprovide otherwise.


EVIDENCE IN CIVIL CASES AND
EVIDENCE IN CRIMINAL CASES
DISTINGUISHED
CIVIL CASES
Claim
must
be
proven
by
preponderance
of
evidence
Offer of compromise
is not an admission
of liability and is not
admissible
in
evidence against the
offeror
Concept
of
presumption
of
innocence does not
apply
except
in
certain
cases
provided for by law

CRIMINAL CASES
Guilt of the accused
has to be proven
beyond
reasonable
doubt
Offer of compromise
by the accused may
be
received
in
evidence
as
an
implied admission of
guilt except those
involving
quasioffenses
Accused enjoys the
constitutional
presumption
of
innocence

EVIDENCE AND PROOF DISTINGUISHED


EVIDENCE
Medium of proof
The
mode
and
manner of proving
competent facts in
judicial proceedings
The
process
of
proving
facts
in
judicial proceedings

PROOF
Result or effect of
evidence
The effect when the
requisite quantum of
evidence
of
a
particular fact has
been duly admitted
and given weight
The facts which are
to be proven

FACTUM PROBANDUM AND FACTUM


PROBANS
Evidence signifies a relationship between two facts:
1. Factum Probandum the ultimate fact orproposition to be established. The
determination of what facts are necessary for the application of a particular law or a
legal precept is the foundation upon which the law on evidence rests. It may be
ascertained in:
a. pleadings submitted by the parties;
b. pre- trial order;
c. issues which are tried with the express or implied consent of the parties (Sec.
5, Rule10).
NOTE:

If a fact is admitted, established or proven(i.e. matters of judicial notice, conclusive


presumptions and judicial admissions) there is no more factum probandum because such
matters need not be established or proven (Evidence [TheBar Lectures Series], Riano, 2009).

CIVIL CASES

CRIMINAL
CASES

The
factum
probandum refers to
the elements of a
plaintiffs cause of
action
and
the
elements
of
the
defense from the
standpoint of the
defendant.
The
factum
probandum
includes all matters
that
the
prosecution
must
prove
beyond
reasonable doubt in
order to justify a
conclusion.

2. Factum Probans the facts or materialevidencing the fact or proposition to be


established. It is the evidentiary fact by which the factum probandum is to be
established.
The probans signifies a relation between the facts. The difference would not be in the nature of
the proof but in the nature of facts required to be proved.
The law on evidence is concerned solely with the relation between the EVIDENTIARY FACTS
and such PROPOSITION.
ADMISSIBILITY OF EVIDENCE
(Sec. 3)
Axioms of Admissibility
a. None but facts having rational probative value are admissible. - Axiom of Relevance;
b. All facts having rational probative value are admissible, unless some specific rule
forbids them. - Axiom of Competence (1 Wigmore).
REQUISITES FOR ADMISSIBILITY
1. It must be relevant.
It must have such arelation to the fact in issue as to induce belief in its existence or
non-existence. It is determinable by the rules of logic and human experience.
Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.

2. It must be competent Not excluded by thelaw or the Rules of Court. It is determined


by the prevailing exclusionary rules of evidence.
Exclusionary Rule
The exclusionary rule is embodied in the 1987 Constitution.
Scope
1.
2.
3.
4.

of Exclusionary Rule: Four (4) Rights Protected


The right against unreasonable search and seizure (Sec. 2);
The right to privacy and inviolability of communication (Sec. 3);
The right of person under investigation for an offense (Sec. 12); and
The right against self-incrimination (Sec. 17) (Herrera).

Fruit of the Poisonous Tree Doctrine


All evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed,
whether it was obtained directly through the illegal search itself, or indirectly using
information obtained in the illegal search.
Q: Dominique was accused of committing a violation of the human Security Act. He was
detained incommunicado, deprived of sleep, and subjected to water torture. He later allegedly
confessed his guilt via an affidavit After trial, he was acquitted on the ground that his
confession was obtained through torture, hence, inadmissible as evidence. In a subsequent
criminal case for torture against those who deprived him of sleep and subjected him to water
torture. Dominique was asked to testify and to, among other things, identify his above said
affidavit of confession. As he was about to identify the affidavit, the defense counsel objected
on the ground that the affidavit is a fruit of a poisonous tree. Can the objection be sustained?
Explain. (Bar 2010)
A: No, the objection may not be sustained on the ground stated, because the affiant was only
toidentify the affidavit which is not yet being offered in evidence.
The doctrine of the poisonous tree can only be invoked by Domingo as his defense in the crime
of Violation of Human Security Act filed against him but not by the accused torture case filed
by him.
In the instant case, the presentation of the affidavit cannot be objected to by the defense
counsel on the ground that is a fruit of the poisonous tree because the same is used in
Domingos favor.
Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he was
informed of his constitutional rights. During the investigation, Edmond refused to give any
statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6)
sachets of shabu were confiscated from him.
Edmond consented and also signed a receipt for the amount of P3,000, allegedly representing
the purchase price of the shabu. At the trial, the arresting officer testified and identified the
documents executed and signed by Edmond. Edmonds lawyer did not object to the testimony.

After the presentation of the testimonial evidence, the prosecutor made a formal offer of
evidence which included the documents signed by Edmond.
Edmonds lawyer object to the admissibility of the document for being the fruit of the poisoned
tree. Resolve the objection with reasons. (Bar 2009)
A: The objection to the admissibility of the documents which the arresting officer asked
Edmond to sign without the benefit of counsel, is well-taken. Said documents having been
signed by the accused while under custodial investigation imply and admission without the
benefit of counsel, that the shabu came from him and that the P3,000,00 was received by him
pursuant to the illegal selling of the drugs. Thus, it was obtained by the arresting officer in
clear violation of sec. 12 (3), Art. III of the 1987 Constitution, particularly the right to be
assisted by counsel during custodial investigation. Moreover, the objection to the admissibility
of the evidence was timely made, i.e., whe the same is formally offered.
Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the
same is formally offered.
ADMISSIBILITY OF
EVIDENCE
Refers
to
the
question of whether
certain
pieces
of
evidence are to be
considered at all
The admissibility of
the
evidence
depends
on
its
relevance
and
competence.

WEIGHT OF
EVIDENCE
Refers
to
the
question of whether
the
admitted
evidence proves an
issue
It has to do with the
effect of evidence
admitted and its
tendency to convince
and persuade.

Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its
surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of shabu
which they alleged to have swallowed Lorenzo.
Suppose the PGH agreed to, and did perform the surgery is the package of shabu admissible in
evidence? Explain. (Bar 2010)
A: No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence
because it was obtained through surgery which connotes forcible invasion into the body of
Lorenzo without his consent and absent due process. The act of the policemen and the PGH
surgeoninvolved,violate the fundamental rights of Lorenzo, the suspect.
RELEVANCE OF EVIDENCE AND
COLLATERAL MATTERS
(Sec. 4)

When is evidence relevant


When it relates directly to a fact in issue; or to a fact from which, by the process of logic, an
inference may be made as to the existence or non-existence of a fact in issue. (Francisco, 1984).
Collateral Matters
Matters other than the factsin issue and which are offered as a basis for inference as to the
existence and non-existence of the facts in issue. A matter is collateral when it is on a parallel
or diverging line, merely additional or auxiliary.
General Rule:
Collateral matters are NOT allowed because it does not have relevance to the issue of the case.
Exception:
Acollateral matter may be admitted ifit tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
Classification of Collateral Matters
a. Prospectant Collateral matters- are thosepreceding of the fact in issue but pointing
forward to it. e.g.: moral character, motive, conspiracy.
b. Concomitant Collateral matters- are thoseaccompanying the fact in issue and
pointing to it. e.g., alibi, or opportunity and incompatibility.
c. Retrospectant Collateral matters- are thosesucceeding the fact in issue but pointing
backward to it. e.g., flight and concealment, behavior of the accused upon being
arrested, fingerprints or footprints, articles left at the scene of the crime which may
identify the culprit.
DOCTRINES OF ADMISSIBILITY OF EVIDENCE
1. Multiple Admissibility
Evidence is relevant and competent for two or more purposes, such evidence should be
admitted for any or all purposes for which it is offered provided it satisfies all the
requirements of law for its admissibility therefor.
NOTE:
It must be remembered that thepurpose for which the evidence is offered must be specified
because such evidence may be admissible for several purposes under the doctrine of
multiple admissibility, or may be admissible for one purpose and not for another, otherwise
the adverse party cannot interpose the proper objection (Uniwide Sales Realty v. Titan-Ikeda
Construction and Development Corp., G. R. No. 126619, Dec. 20, 2006).
2. CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer appears to be immaterial or irrelevant unless
it is connected with the other facts to be subsequently proved, such evidence may be
received on the condition that the other facts will be proved thereafter, otherwise the
evidence already given will be stricken out.
This doctrine was applied in a criminal case People v. Yatco, 97 Phil. 940 and in a civilcase
Prats & Co. v. Phoenix Insurance Co., etc., 52 Phil. 807 subject to the qualification that there

should be no bad faith on the part of the proponent which appears necessary to avoid
unfair surprises to the other party (Regalado).
3. CURATIVE ADMISSIBILITY
Allows a party to introduce otherwise inadmissible evidence to answer the opposing
partys previous introduction of inadmissible evidence if it would remove any unfair
prejudice caused by the admission of the earlier inadmissible evidence. Conversely, the
doctrine should not be invoked where evidence was properly admitted.
What Determines
the Rule on Curative Admissibility:
a. Whether the incompetent evidence is seasonably objected to;
b. Whether regardless of the objections, the admission of such evidence will cause a plain
and unfair prejudice to the party against whom it was admitted.
The admissibility of evidence is determined at the time it is offered to the court (Sec. 35, Rule
132). Object or real evidence is offered to the court when the same is presented for its view or
evaluation, or when the party rests his case and the real evidence consists of objects exhibited
in court. Testimonial evidence is offered by the calling of the witness to the stand.
Documentary evidence is formally offered by the proponent immediately before he rests his
case (Regalado).
CLASSIFICATION OF EVIDENCE
A. Depending on its ABILITY TO ESTABLISH THE FACT in dispute:
1. DIRECT EVIDENCE that which provesthe fact in dispute without the aid of
any inference or presumption.
2. CIRCUMSTANTIAL EVIDENCE proof offact or facts from which, taken either
singly or collectively, the existence of the particular fact in dispute may be
inferred as a necessary or probable consequence. (Sec. 5, Rule 133)
B. Depending on its WEIGHT AND ACCEPTABILITY:
1. PRIMARY OR BEST EVIDENCE that whichthe law regards as affording the
greatest certainty of the fact in question.
2. SECONDARY OR SUBSTITUTIONARY thatwhich is necessarily inferior to
primary evidence and shows on its face that better evidence exists. It is
permitted by law only when best evidence is not available.
C. Depending on its FORM:
1. OBJECT EVIDENCE (REAL or PHYSICAL
That which is addressed to the senses of the court, and when relevant to the fact
in issue, may be exhibited to, examined or viewed for the personal observation of
the judge. It is also called autopticproference.
2. DOCUMENTARY EVIDENCE

Consists of writing, or any material containing letters, words, numbers, figures,


symbols or other modes of written expression offered as proof of their contents
(Sec. 2, Rule 130).
3. TESTIMONIAL EVIDENCE (ORAL or VERBAL)
That which is submitted to the court through the testimony or deposition of a
witness.
4. POSITIVE EVIDENCE
When the witness affirms that a certain state of facts does exist or that a certain
event happened.
NOTE:
Positive evidence is, as a generalrule, more credible than negative evidence.
5. NEGATIVE EVIDENCE
When the witness states that an event did not occur or that the state of facts
alleged to exist does not exist.
Evidence that is negative is self-serving in nature and cannot attain more credibility than the
testimonies of witnesses who testify on clear and positive evidence (People v. Larranaga, 463
SCRA652).
Although such categories as positive and negative evidence are normally associated with
testimonial evidence, no rule precludes their application to other forms of evidence.
(Evidence[The Bar Lectures Series], Riano, 2009).
Such may refer to the presence or absence of something, i.e., the presence of fingerprints of a
person in a particular place is positive evidence of his having been in said place although
absence of his fingerprints does not necessarily mean he was not in the same place.
D. Depending on its DEGREE OF VALUE:
1. CONCLUSIVE EVIDENCE that class ofevidence which the law does not allow it
to be contradicted.
2. PRIMA FACIE EVIDENCEthat which,standing alone, unexplained
uncontradicted, is sufficient to maintain the proposition affirmed.

or

3. CUMULATIVE EVIDENCE evidence of thesame kind and character as that


already given and that tends to prove the same proposition.
4. CORROBORATIVE EVIDENCE one that issupplementary to that already given
to strengthen and confirm it. It is additional evidence of a different kind and
character, tending to prove the same point.
Corroborative evidence is necessary only when there are reasons to suspect that
the witness falsified the truth or that his observations are inaccurate
(Mangangey v. Sandiganbayan, G.R.Nos. 147773-74, February 18, 2008).

E. Depending on its QUALITY:


1. RELEVANT EVIDENCE one which has arelation to the fact in issue as to
induce belief in its existence or non-existence. (Sec. 4, Rule 128)
2. MATERIAL EVIEDENCE when it is directedto prove a fact in issue as
determined by the rules of substantive law and pleadings (Wigmore on Evidence).
3. COMPETENT EVIDENCE one that is notexcluded by law or the Rules of Court,
a statute or the Constitution.
4. ADMISSIBILE EVIDENCE it is relevant tothe issue and is not excluded by law
or by the Rules of Court.
5. CREDIBLE EVIDENCE it is not onlyadmissible but also believable and used by
the court in deciding a case.
F. Depending on its FUNCTION:
1. REBUTTAL EVIDENCE that which is givento explain, repel, counteract or
disprove facts given in evidence by the adverse party.
2. SUR-REBUTTAL that which is given toexplain, repel, counteract or disprove
facts introduced in rebuttal.
Types of Rules of Evidence
a. Those established for reasons of publicpolicy; and
b. Those established for the protection of theparties. In such a case, the rules of
evidencemay be waived.
The parties may waive such rules (1) during the trial of a case or (2) through stipulation in a
contract, provided the waiver is not contrary to law, public order, public policy, morals, or
good customs or prejudicial to a third person with a right recognized by law (Art. 6, Civil
Code).
NOTE:
However, if the rule of evidence waived bythe parties has been established by law on grounds
of public policy, the waiver is void, i.e. waiver of the privilege against the disclosure of state
secrets is void (Handbook on Evidence,Francisco, 1984).
RULE 129
WHAT NEED NOT BE PROVED
Facts
a.
b.
c.

that need not be proved:


Facts which are presumed (Rule 131);
Facts which are of judicial notice (Rule 129); and
Facts which are judicially admitted (Rule129).

MATTERS OF JUDICIAL NOTICE

Judicial notice is based on considerations of expediency and convenience (Regalado, 2008). The
function of judicial notice is to abbreviate litigation by the admission of matters that need no
evidence because judicial notice is a substitute for formal proof of a matter by evidence
(Evidence [The Bar Lectures Series], Riano, 2009).
NOTE:
Judicial notice takes the place of proof andis of equal force. It displaces evidence and fulfills the
purpose for which the evidence is designed to fulfill. Hence, it makes evidence unnecessary
(Moran, Comments on the Rules of Court, 1980).
JUDICIAL NOTICE, WHEN MANDATORY
(Sec. 1, Rule 129)
Matters subject to MANDATORY Judicial Notice (SOFT GL2AMP2)
a. Territorial extent of states;
b. Political history of states;
c. Forms of government of states;
d. Symbols of nationality;
e. Law of nations;
f.
Admiralty and maritime courts of the worldand their seals;
g. Political constitution and history of thePhilippines;
h. Official acts of the legislative, executive andjudicial departments of the Philippines;
i. Laws of nature;
j. Measure of time; and
k. Geographical divisions
NOTE:
When the matter is subject tomandatory judicial notice, no motion or hearing is necessary for
the court to take judicial notice of a fact as this is a matter which a court ought to take judicial
notice of.
Judicial Notice fulfills the objective which theevidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the personal knowledge of the court; rather, it is
the cognizance of common knowledge.
Matter considered as common knowledgeThey are those matters coming to the knowledge of men generally in the course of ordinary
experiences of life, or they may be matters which are generally accepted by mankind as true
and are capable of ready and unquestioned demonstration.
Judicial Knowledge
It is the cognizance of certain factswhich a judge under rules of legal procedure or otherwise
may properly take or act upon without proof because they are already known to him, or is
assumed to have, by virtue of his office.
JUDICIAL NOTICE, WHEN

DISCRETIONARY
(Sec. 2, Rule 129)
Matters Subject to DISCRETIONARY Judicial Notice:
1. Matters of public knowledge -- A fact is said to be generally recognized or known when
its existence or operation is accepted by the public without qualification or contention
(Francisco).
2. Matters capable of unquestionable demonstration -- pertains to fields of professional
and scientific knowledge; and
3. Matters ought to be known to judges because of their judicial functions i.e. facts which
are ascertainable from the record of court proceedings, such as when court notices were
received by a party.
NOTE:
Judicial notice under Sec. 2 of Rule 129rests on the wisdom and discretion of the court. The
power to take judicial notice must be exercised with caution and care must be taken that the
requisite notoriety exists. Any reasonable doubt on the matter sought to be judicially noticed
must be resolved against the taking of judicial notice (State Prosecutors v. Muro, 236SCRA 505).
General Rule:
The Court is NOT authorized totake judicial notice of the contents of the record of other cases
in the adjudication of cases pending before it even if said cases have been heard or are pending
before such Court.
Exceptions:
Courts may take judicial notice of therecord of other cases before it when:
1. There is no objection or by agreement of the parties, in which case it may be read into
therecords or admitted as part of the record ofthe case then pending; The other
proceedings or causes of which are so closely interwoven or independent;
2. Where the interests of the public in ascertaining the truth are of paramount
importance; or
3. In cases seeking to determine what is reasonable exercise of discretion or whether or
not a previous ruling is applicable in a case under consideration (Francisco on
Evidence).
The exceptions are applicable only when in the absence of objections, with the knowledge of
the opposing party, or at the request or with the consent of the parties.The case is
withdrawnfrom the archives and admitted as part of the record then pending.
JUDICIAL NOTICE, WHEN HEARING IS
NECESSARY
(Sec. 3, Rule 129)
A hearing may be necessary, not for the presentation of evidence, but to afford the parties
reasonable opportunity to present information relevant to the propriety of taking such judicial
notice or to the tenor of the matter to be noticed (Herrera on Evidence).

When Judicial Notice May Be Taken


1. During the trial, on any matter The courtmay announce its intention to take judicial
notice of any matter and may hear the parties thereon.
2. After the trial and before judgment or on appeal The Court may take judicial notice
ofany matter and allow the parties to be heard thereon only if such matter is decisive of
a material issue in the case.
In BOTH instances, the Court may act on its own initiative or on request of a
party(Feria,Philippine Legal Studies, Series No. 4).
JUDICIAL ADMISSION
(Sec. 4, Rule 129)
It is an admission, verbal or written, made by a party in the course of the proceedings in the
same case, which does not require proof
Requisites for Judicial Admissions:
a. The admission must be made by a party to the case.
b. It must be made in the course of the proceedings in the same case.
c. Admission may be either verbal or written.
Judicial admissions may be made in:
1. The pleadings filed by the parties (National Electrification Administration v. CA, GR No.
103585, Oct. 6, 1996);
NOTE:
An admission made in a pleading maybe an actual admission as when a party (a)
categorically admits a material allegation made by the adverse party or (b) fails to
specifically deny the material allegations in the other partys pleadings.
2. During the trial either by verbal or written manifestations or stipulations;
3. In other stages of the judicial proceedings, as in the pre-trial conference of the; or
4. Admissions obtained through depositions (Rule 24), written interrogatories (Rule 25) or
requests for admissions (Rule 26).
JUDICIAL
ADMISSION
Admission
made
by a party in the
course
of
the
proceedings in the
same case.
Conclusive
upon
the party making it

EXTRAJUDICIAL
ADMISSION
One made out of
court or in a
judicial proceeding
other than the one
under
consideration.
As a rule, it is
conclusive.

and
does
require proof.

not

However, when the


elements
of
estoppel are not
present,
it
is
disputable.

EFFECTS OF JUDICIAL ADMISSION


General rule:
Judicial does not require proof andit cannot be contradicted because they are conclusive upon
the party making it.
Exceptions:
1. When shown that the admission was made through palpable mistake, or
2. When it is shown that no such admission wasin fact made.
Instances of Judicial Admission:
a. Admissions of facts in pre-trial of civil cases (Sec. 2, Rule 18)
b. Genuineness and due execution of an actionable document when the adverse party fails
to specifically deny it (Sec. 8, Rule 8,PNBv. Refrigeration Industries, Inc., G.R. No.
156178, January 20, 2006)
c. Allegations of usury in a complaint to recover usurious interest, if not denied under
oath (Sec. 11, Rule 8)
d. Act, declaration or omission of a party as to a relevant fact (Sec. 26, Rule 130)
e. Admissions obtained through depositions, written interrogatories or requests for
admission.
Averments in Pleadings which are NOT Deemed Admissions
a. Immaterial allegations, e.g., allegations by way of anticipation of defense (Worcester
v.Lorenzana);
b. Incorrect conclusions of facts drawn from facts set out in the complaint;
c. Conclusions of law;
d. General averments contradicted by specific averments;
e. Unliquidated damages.
No admissions are permitted in:
a. Annulment of marriage (Article 48, FamilyCode); and
b. Legal separation (Article 60, Family Code)
General rule:
Judicial admissions made in onecase are admissible at the trial of another case provided they
are proved and are pertinent to the issue involved in the latter.
Exceptions:
a. The said admissions were made only for purposes of the first case, as in the rule of
implied admissions and their effects under Rule 26;
b. The same were withdrawn with the permission of the court therein; or
c. The court deems it proper to relieve the party therefrom.

HOW JUDICIAL ADMISSIONS


MAYBE CONTRADICTED
When such admission was made through palpable mistake or that there was no such
admission.
JUDICIAL NOTICE OF FOREIGN LAWS,
LAWS OF NATIONS AND MUNICIPAL
ORDINANCES
1. Foreign Law must be proved as any otherfact, except where said laws are within the
actual knowledge of the courts.
To prove a written foreign law, the requirements of Secs. 24 and 25, Rule 132 must be
complied with.
SEC. 24. Proof of official record.
The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreign country,
the certificate may be made by a secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.
SEC. 25. What attestation of copy must state.
Whenever a copy of a document or record is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official seal
of the attesting officer, if there be any, or if he be the clerk of a court having a seal,
under the seal of such court.
To prove an unwritten foreign law, the provisions of Sec. 46, Rule 130 supply the
evidential sources or remedies.
SEC. 46. Learned treatises.
A published treatise, periodical or pamphlet on a subject of history, law, science or art is
admissible as tending to prove the truth of a matter stated therein if the court takes
judicial notice, or a witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is recognized in his profession or
calling as expert in the subject.
DOCTRINE OF PROCESSUAL PRESUMPTION
The doctrine which lays down the presumption that the foreign law is the same as the
law of the forum. It arises if the foreign law, though properly applicable, is either not
alleged, or if alleged, is not duly proven before a competent court.

2. Law of Nations the law of nations which is the subject of judicial notice is the law
which regulates the relations of the dominant powers of the earth. It is the compilation
of rules which by common consent of mankind have been acquiesced in as law.
When foreign law refers to the law of nations, such law is subject to a mandatory
judicial notice under Sec. 1 of Rule 129.
Under the Philippine Constitution, the Philippines adopts the generally accepted
principles of international law as part of the law of the land (Sec. 2, Art. II, Constitution
of the Philippines).
Being parts of the law of the land, they are therefore technically in the nature of local
laws, hence are subject to mandatory judicial notice.
3. Judicial Notice of Municipal Ordinances
Municipal trial courts are required to take judicial notice of the ordinances of the
municipality or city wherein they sit. However, in the case of Regional Trial Courts, they
must take judicial notice only:
a. When required to do so by statute, e.g., in Manila as required by the city charter
(City ofManila v. Garcia, et al., L-26053, 21 Feb. 1967); and
b. In a case on appeal before them and wherein the inferior court took judicial
notice of an ordinance involved in said case (U.S. v.Fernandez, 31 Phil. 342).
RULE 130
RULES OF ADMISSIBILITY
OBJECT (REAL) EVIDENCE
(Sec. 1, Rule 130)
Nature of Object Evidence
Objects as evidence are those addressed to the senses of the court. When an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed by the court.
Rationale on Admissibility of Object Evidence
The evidence of ones own senses furnishes the strongest probability and the only perfect and
indubitable certainty of the existence of any sensible fact.
Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred
witnesses.
Requisites
a. The
b. The
c. The
d. The

of Admissibility of Object Evidence


evidence must be relevant;
evidence must be authenticated before it is admitted;
authentication must be made by a competent witness; and
object must be formally offered in evidence.

Categories of Object Evidence

For purposes of authentication, object evidence is classified into the following:


1. Objects that have readily identifiable marks (unique objects);
2. Objects that are readily made identifiable (objects made unique); and
3. Objects with no identifying marks and cannot be marked (non-unique objects).
DEMONSTRATIVE EVIDENCE
Tangible evidence that merely illustrates a matter of importance in the litigation, i.e., maps,
diagrams, photographs, x-ray pictures. It is not strictly real evidence because it is not the
very thing involved the case as it merely represents or demonstrates the real thing. It is a
visual aid.
If the object evidence can be brought to the courtroom, the court can have it exhibited before it
through a witness who may present it as an exhibit during his testimony, and thereafter the
court may have it examined or viewed in open court during trial in the presence of the parties.
An object may be merely set forth for inspection, or some experimental process may merely
employ his senses directly or he may use some suitable mechanical aid, such as a microscope;
and he may merely look on, or he may take an active share in the process of experimentation
(Herrera citing 2 Wigmore on Evidence, Sec.1152).
Where an object which has relevance to the fact in issue cannot be introduced in court,
because it is immovable or inconvenient to remove, like buildings, machinery, animals or other
heavy objects, the natural tendency is for the tribunal to go to the object in its place and there
observe it. This process, traditionally known as a view, has been recognized as appropriate
and rests entirely on the sound discretion of the trial court (Herreraciting 2 Wigmore on
Evidence, Sec. 1162).
CHAIN CUSTODY RULE
(in relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2000)
The Chain of Custody Rule applies to objects which are not readily identifiable, were not made
identifiable or cannot be made identifiable like drops of blood, drugs in powder form, fiber and
similar objects.
Under this situation, the proponent must establish a chain of custody.
Chain of Custody means the duly recordedauthorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. (People v.Obmiranis, G.R. No. 181492, December 16,
2008)
General Rule:
The rule requires that in order to guaranty the integrity of the physical evidence and to prevent
the introduction of evidence which is not authentic, each of the handlers of the evidence who is
a link in the chain must testify how he received the object, how he handled it to prevent
substitution and how it was transferred to another.

Exceptions:
1. As long as one of the chain testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
2. Where evidence is possessed jointly by two people, it is not necessary for both to testify
as to the chain of custody.
Instances when exhibition maybe dispensed with:
a. Where the presentation is violative of decency.
b. Where the presentation has no purpose other than to arouse the passion of the court
towards the party against whom it is offered in evidence.
c. When the object is repulsive or offensive to the sensibilities.
d. Where, in the discretion of the court, the production of evidence will cause great
inconvenience, or where, for other reasons, it is unjust.
Q: Discuss the "chain of custody" principle with respect to evidence seized under R.A. 9165 or
the Comprehensive Dangerous Drugs Act of 2002. (Bar 2012)
A: In prosecutions involving narcotics and other illegal substances, the substance itself
constitutes part of the corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt. The chain of custody requirement is
essential to ensure that doubtsregarding the identity of the evidence are removed through the
monitoring and tracking of the movements of the seized drugs from the accused, to the police,
to the forensic chemist, and finally to the court. (People vs. Sitco, G.R. No. 178202, May 14,
2010, Velasco, Jr. J.)
Ergo, the existence of the dangerous drug is a condition sine qua non for conviction. (People vs.
De Guzman Y Danzil, G.R. No. 186498, March 26, 2010 Nachura J.)
The failure to establish, through convincing proof, that the integrity of the seized items has
been adequately preserved through an unbroken chain of custody is enough to engender
reasonable doubt on the guilt of an accused. (People vs. De Guzman y Danzil)
Nonetheless, non-compliance with the procedure shall not render void and invalid the seizure
and custody of the drugs when:
1. such non-compliance is attended by justifiable grounds; and
2. the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending team. There must be proof that these two (2) requirements were met
before such non-compliance may be said to fall within the scope of then proviso. (People
vs. Dela Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273)
A.M. No. 06-11-5-SC RULE ON DNA
EVIDENCE
Scope

This Rule shall apply whenever DNAevidence, is offered, used, or proposed to be offered or
used as evidence in:
a. criminal actions,
b. civil actions, and
c. special proceedings (Sec.1)
DNA (deoxyribonucleic acid)
The chainof molecules found in every nucleated cell of the body. The totality of an individuals
DNA is unique for the individual, except identical twins.
DNA Evidence
The totality of the DNA profiles,results and other genetic information directly generated from
DNA testing of biological samples.
DNA Profile
Genetic information derived fromDNA testing of a biological sample obtained from a person,
which biological sample is clearly identifiable as originating from that person.
APPLICATION FOR DNA TESTING ORDER
Who May File an Application for DNA Testing Order
1. Appropriate court at its own instance
2. Any person who has a legal interest in the matter in litigation (Sec. 4, RDE)
The DNA Testing Order shall be issued upon a showing of the following:
a. A biological sample exists that is relevant to the case;
b. The biological sample: (i) was not previously subjected to the type of DNA testing now
requested; or (ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new information that is relevant
to the proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy of integrity of the DNA testing (Sec.5).
However, DNA testing may be done without the prior court orderat the behest of any
party,including law enforcement agencies, before a suit or proceeding is commenced (Sec. 4,
RDE).
An order granting the DNA testing shall be immediately
be appealable.

executory

and

shall

NOT

Remedy against the court order if it is NOT appealable


The remedy is to file a petition for certiorari but any petition for certiorari initiated shall not, in
any way, stay the implementation thereof, unless a higher court issues an injunctive order
(Sec. 5,RDE).
Post-conviction DNA testing; when available

Post-conviction DNA testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judgment provided that:
a. A biological sample exists,
b. Such sample is relevant to the case, and
c. The testing would probably result in the reversal or modification of the judgment of
conviction. (Sec. 6)
POST-CONVICTION DNA TESTING; REMEDY
The convict or the prosecution may file a petition for a writ of habeas corpus in the court of
origin if the results of the post-conviction DNA testing are favorable to the convict.
In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or
modify the judgment of conviction and order the release of the convict, unless continued
detention is justified for a lawful cause (Sec. 10, RDE).
Where should the petition for habeas corpus be filed
The petition shall be filed in the court of origin as a rule. However, it may be filed either in the
CA or the Supreme Court, or with any member of said courts, which may conduct a hearing
thereon or remand the petition to the court of origin and issue the appropriate orders (Sec. 10).
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY
The following shall be considered:
1. The chain of custody, including how the biological samples were collected, how they
were handled, and the possibility of contamination of the samples;
2. The DNA testing methodology;
3. The forensic DNA laboratory; and
4. The reliability of the testing result (Sec. 7,RDE).
Jurisprudential Guidelines in Assessing the Probative Value of DNA Evidence
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the
tests; and
4. The qualification of the analyst who conducted the tests (People v. Vallejo, 382SCRA
192, 2002).
RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY
The court shall consider the following:
a. Weight of matching DNA evidence or the relevance of mismatching DNA evidence;
b. The totality of the other evidence presented in the case; and
c. DNA results that exclude the putative parent from paternity shall be conclusive proof of
non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results
of the DNA testing shall be considered as corroborative evidence. If the value of the
Probability of Paternity is 99.9% or higher there shall be a disputable presumption of
paternity (Sec. 9, RDE).
CONFIDENTIALITY OG THE DNA TESTING RESULTS
General rule:

DNA profiles and all results or otherinformation obtained from DNA testing shall be
confidential.
Exception:
Upon order of the court, a DNA profileand all results or other information obtained from DNA
testing shall only be released to any of the following: (PLL DO)
a. Person from whom the sample was taken;
b. Lawyers representing parties in the case oraction where the DNA evidence is offered
and presented or sought to be offered and presented;
c. Lawyers of private complainants in a criminalaction;
d. Duly authorized law enforcement agencies;and
e. Other persons as determined by the court (Sec. 11, RDE).
Where the person from whom the biological sample was taken files a written verified request to
the court that allowed the DNA testing for the disclosure of the DNA profile of the person and
all results or other information obtained from the DNA testing, the same may be disclosed to
the persons named in the written verified request (Sec. 11).
The use of DNA as object evidence did not violate the constitutional right against selfincrimination. The right against self-incrimination applies only to testimonial compulsion and
it does not apply where the evidence sought to be excluded is not an incriminating statement
but an object evidence (People v. Yatar, G.R. No. 150224, May19, 2004).
Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence
showing that the semen found in the private part of the victim was not identical with that of
the accused. As private prosecutor, how will you dispute the veracity and accuracy of the
results of the DNA evidence? (Bar 2010)
A: As a private prosecutor, I shall try to discredit the results of the DNA test by questioning and
possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the
biological sample obtained; the testing methodology employed; the scientific standard observed;
the forensic DNA laboratory which conducted the test; and the qualification, training and
experience of the forensic laboratory personnel who conducted the DNA testing.
Q: The Vallejo standard refers to jurisprudential norms considered by the court in assessing
the probative value of DNA evidence. (Bar 2009)
A: TRUE. In People vs. Vallejo, 382 SCRA 192 (2002), it was held that in assessing the
probative value of DNA evidence, courts should consider among other things, the following
data: how the samples were collected, how they were handled, the possibility of contamination
of the samples, whether the proper standards and procedures were followed in conducting the
test and the qualification of the analyst who conducted tests.
DOCUMENTARY EVIDENCE
(Sec. 2, Rule 130)
Documents as evidence are:

1. Writings, or
2. Any material containing modes of written expressions including letters, words,
numbers, figures, or symbols offered as proof of their contents.
When a document is considered as real or object evidence
If a document is offered for the purpose establishing its existence, execution, circumstances
surrounding its execution or the condition of the document itself and NOT as proof of their
contents, the same is considered as object or real evidence which the court may view for such
purpose.
Documents are object (real) evidence if the purpose is to prove their existence or condition, or
the nature of the handwritings thereon, or to determine the age of the paper used, or the
blemishes or alterations thereon, as where falsification is alleged. Otherwise, they are
considered documentary evidence, i.e., if the purpose is to establish the contents or tenor
thereof (Regalado).
REQUISITES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a competent witness; and
d. The document must be formally offered in evidence.
BEST EVIDENCE RULE
General rule
When the subject of inquiry is thecontents of a document, no evidence shall be admissible
other than the original document itself. It operates as a rule of exclusion in that secondary
evidence cannot inceptively be introduced as the original writing itself must be produced in
court, except in the four instances mentioned.
Rationale
The copy of the original is notas reliable as the latter because of possible inaccuracies in the
process of copying and the danger of erroneous transmission of the original.
Exceptions
1. When the original has been lost, or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
4. When the original is a public record in the custody of a public officer or is recorded in a
public office. (Sec. 3, Rule 130)
Limitations to the Rule:
a. Proof of collateral facts is not within the coverage of the best evidence rule;
b. The document is not necessarily the best evidence even if a fact in issue is evidenced by
the same;

c. The rule has no application to prove a fact which existence is proven independently of
any writing;
d. The rule applies only to documentary evidence and not to object evidence.
The subject of inquiry under the best evidence rule is the contents of writing, NOT the truth
thereof.
Where the transactions have been recorded in writing but the contents of such writing are not
the subject of the inquiry, the best evidence rule does not apply. Affidavits and depositions
are considered as not being the best evidenced, hence not admissible if the affiants or
deponents are available as witnesses (4 Martin, op. cit., p. 82). However, if the issue is the
existence and/or contents of said documents, then they are considered primary evidence, but
any recitation therein of the contents of another document would merely be secondary evidence
of the latter (Regalado).
Waiver of the Rule
The Best Evidence Rule may be WAIVED if not raised in the trial as when secondary evidence is
offered and no objection was made by the adverse party.
ORIGINAL OF DOCUMENT (Sec. 4, Rule 130)
What are Considered Original Documents
1. The original of a document is one the contents of which are the subject of inquiry.
2. When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.
3. When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.
Is the photocopy of marked bills admissible in evidence?
The photocopy of the bills being object evidence is admissible in evidence without violation of
the best evidence rule. The rule applies only to documentary evidence and not to object
evidence.
Requisite for admission of secondary evidence
In order that such secondary evidence may be admissible, there must be proof by
satisfactoryevidence of:
a. Due execution of the original;
b. Loss, destruction or unavailability of all such originals; and
c. Reasonable diligence and good faith in the search for or attempt to produce the original
(Zaldivar v. Mun. of Talisay, 18 Phil. 262).
The loss, destruction or unavailability of the document should not be due to the offerors bad
faith (Sec. 5, Rule 130).
The due execution of the document should be proved through the testimony of either:
a. The person/s who executed it;
b. The person before whom its execution was acknowledged; or
c. Any person who was present and saw it executed and delivered or who thereafter saw it
and recognized the signatures, or one to whom the parties thereto had previously

confessed the execution thereof (Director ofLands, et al. v. CA, et al., L-29575, 30 April
1971).
If the document is in the custody or under the control of the adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its existence,
he fails to produce the document, secondary evidence may be presented as in the case of its
loss (Sec. 6, Rule 130).
A party who calls for the production of a document and inspects the same is not obliged to
offer it as evidence (Sec. 8, Rule 130).
No particular form of notice is required, as long as it fairly apprises the other party as to what
papers are desired (4 Martin, op. cit., pp. 94-95). Even oral demand in open court for such
production at a reasonable time thereafter will suffice. Such notice must, however, be given to
the adverse party, or his attorney, even if the document is in the actual possession of a third
person (Regalado).
RULE 130
The production of
the
original
document
is
procured by mere
notice
to
the
adverse party and
the requirements of
such notice must be
complied with as a
condition precedent
for the subsequent
introduction
of
secondary evidence
by the proponent.
Generally,
it
presupposes
that
the document to be
produced
is
intended
as
evidence for the
proponent who is
presumed to have
knowledge of its
contents, secondary
evidence
thereof
being available in
case of its nonproduction.

RULE 27
The production of
the document is in
the nature of a
mode of discovery
and can be sought
only
by
proper
motion in the trial
court,
but
is
permitted only upon
good cause shown.

This
rule
contemplates
the
situation
wherein
the document is
either assumed to
be favorable to the
party
in
the
possession thereof
or that the party
seeking
its
production is not
sufficiently
informed
of
the
contents
of
the
same. (Regalado)

Where the nature of the action is in itself a notice, as where it is for the recovery or annulment
of documents wrongfully obtained or withheld by the other party, no notice to produce said
documents is required (Warner Barnes & Co., Ltd. V. Buenaflor, et al., 36 O.G. 3290).
For the exception regarding voluminous records to apply, the following must be present:
a. The voluminous character of the records must be established; and
b. Such records must be made accessible to the adverse party so that their correctness
may be tested on cross-examination (Cia.Maritima v. Allied Free Workers Union, et al.,
L028999, 24 May 1977).
Sec. 7, Rule 130 complements as an exception to the Best Evidence Rule in correlation with
Rule 132 Secs. 24 and 27.
SEC. 7. Evidence admissible when originaldocument is a public record.
When theoriginal of a document is in the custody of a public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in custody
thereof.
A.M. No. 01-7-01-SC
RULES ON ELECTRONIC EVIDENCE
Scope
The Rules on Electronic Evidence shall apply whenever an electronic data message, is offered
or used in evidence.
Coverage
These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases.
An electronic document, also known interchangeably as electronic data message, based on the
definition of the Rules, does not only refer to the information itself. It also refers to the
representation of that information (Sec.1[h], Rule 2).
Electronic data message
Information generated,sent, received or stored by electronic, optical or similar means Whether
it is the information itself or its representation, for the document to be electronic, it is
important that it be received,recorded, transmitted, stored, processed, retrieved or produced
electronically.
Purposes for the Use of Electronic Documents
An electronic document may be used for any of the following purposes:
a. To establish a right;
b. To extinguish an obligation; or
c. To prove or affirm a fact (Sec.1[h], Rule 2).
Electronic documents as functional equivalent of paper-based documents
NOTE: Since, an electronic document is thefunctional equivalent of a paper-based document,
whenever a rule of evidence refers to the terms of a writing, document, record, instrument,

memorandum or any other form of writing, such term shall be deemed to include electronic
documents (Sec.1, Rule 3).
Requisites for Admissibility:
An electronic document is admissible in evidence:
a. If it complies with the rules on admissibility prescribed by the Rules of Court related
laws and;
b. Authenticated in the manner prescribed by these Rules (Sec. 2).
Burden of Proving Authenticity
The person seeking to introduce an electronic document in any legal proceeding has the
burden of proving its authenticity in the manner provided in this Rule (Sec. 1, Rule 5).
NOTE:
If it is a private electronic documentoffered as authentic, its authenticity need to be proven by
the person introducing the document before it is admitted in evidence (Sec. 1 and 2,Rule 5,
Rules on Electronic Evidence).
An electronic evidence is the equivalent of an original document under the Best Evidence Rule
if it is a printout or readable by sight or other means, shown to reflect the data accurately. (Bar
2009) (Sec. 1, Rule 4 of A.m. No. 01-7-01-SC, re: Rules on Electronic Evidence)
MANNER
OF AUTHENTICATION OF ELECTRONIC DOCUMENTS
Before any private electronic document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:
a. By evidence that it had been digitally signed by the person purported to have signed the
same; or
b. By evidence that other appropriate security procedures or devices as may be authorized
by the Supreme Court or by law for authentication of electronic documents were applied
to the document; or
c. By other evidence showing its integrity and reliability to the satisfaction of the judge
(Sec.2, Rule 5).
NOTE:
Sec. 2, Rule 5 will only apply when thedocument is a private electronic document and when the
same is offered as an authentic document.
If the electronic document is offered simply for what it is or claimed without regard to whether
or not it is authentic, Sec. 2, Rule 5 does not apply. In such case, the electronic document has
to be only identified pursuant to the suppletory application of Sec. 20, Rule 132 of the Rules of
Court stating that any private document need only be identified as that which it is claimed to
be (Evidence [The Bar Lectures Series], Riano, 2009).
Proof of Electronically Notarized Document
A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court.

NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
Privileged Communication
The confidential character of a privileged communication is NOT lost solely on the ground that
it is in the form of an electronic document (Sec.3, Rule 3).
NOTE: Privileged communications apply even toelectronic evidence.
ELECTRONIC SIGNATURES
Electronic signature refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedure employed or
adopted by a person and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data message or electronic document. For
purposes of these Rules, an electronic signature includes digital signatures (Sec. 1[j]).
An electronic signature or a digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional equivalent of the signature of a person
on a written document (Sec. 1, Rule 6).
Authentication of Electronic Signatures
An electronic signature may be authenticated in any of the following manner:
1. By evidence that a method or process was utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as establishing the genuineness of the
electronic signature (Sec. 2, Rule 6).
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
1. The electronic signature is that of the person to whom it correlates;
2. The electronic signature was affixed by that person with the intention of authenticating
or approving the electronic document to which it is related or to indicate such person's
consent to the transaction embodied therein; and
3. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6).
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Factors for Assessing Evidentiary Weight
In assessing the evidentiary weight of an electronic document, the following factors may be
considered:
1. The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls,

2.
3.

4.
5.

6.

tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;
The reliability of the manner in which its originator was identified;
The integrity of the information and communication system in which it is recorded or
stored, including but not limited to the hardware and computer programs or software
used as well as programming errors;
The familiarity of the witness or the person who made the entry with the
communication and information system;
The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document
was based; or
Other factors which the court may consider as affecting the accuracy or integrity of the
electronic document or electronic data message (Sec. 1, Rule 7).

METHOD OF PROOF
Affidavit Evidence
All matters relating to the admissibility and evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on authentic records. The affidavit must affirmatively show the competence of the affiant to
testify on the matters contained therein (Sec.1, Rule 9).
Cross-examination of Deponent
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse party (Sec. 2, Rule 9).
BEST EVIDENCE RULE ON ELCTRONIC DOCUMENT
Original of an Electronic Document
An electronic document shall be regarded as the equivalent of an original document under the
Best Evidence Rule if it is a printout or output readable by sight or other means, shown to
reflect the data accurately (Sec.1, Rule 4).
NOTE:
The terms electronic data message andelectronic document, as defined under the
Electronic Commerce Act of 2000, do not include a facsimile transmission and cannot be
considered an electronic evidence. It is not the functional equivalent of an original under the
Best Evidence Rule and is not admissible as electronic evidence (MC Industrial Sales Corp. v.
SsangyongCorp., G.R. No. 170633, October 17, 2007).
Copies as Equivalent of the Originals
When a document is in two or more copies executed at or about the same time with identical
contents, or is a counterpart produced by the same impression as the original, or from the
same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by
other equivalent techniques which accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall NOT be admissible to the same extent
as the original if:

a. A genuine question is raised as to the authenticity of the original; or


b. In the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original (Sec. 2, Rule 4).
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
Inapplicability of the Hearsay Rule
A memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses, made by electronic, optical or other similar means at or near the time of or from
transmission or supply of information by a person with knowledge thereof, and kept in the
regular course or conduct of a business activity, and such was the regular practice to make the
memorandum, report, record, or data compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence (Sec.1, Rule 8).
Overcoming the Presumption
The presumption provided for in Section 1 of this Rule may be overcome by evidence of the
untrustworthiness of the (1) source of information OR (2) the method or circumstances of the
preparation, transmission or storage thereof.
EXAMINATION OF WITNESSES
Electronic Testimony
After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may
authorize the presentation of testimonial evidence by electronic means. Before so authorizing,
the court shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances, including the protection of the rights
of the parties and witnesses concerned (Sec. 1, Rule 10).
AUDIO, PHOTOGRAPHIC,VIDEO, AND
EPHEMERAL EVIDENCE
Requisites for Admissibility of Audio, Video and Similar Evidence
It shall be admissible, provided:
1. It shall be shown, presented or displayed to the court; and
2. It shall be identified, explained or authenticated by the person who made the recording
or by some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11).
Ephemeral Electronic Communications
Ephemeral electronic communications refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained (Sec. 1[k], Rule 2, Rules
onElectronic Evidence). It shall beprovenby thetestimony of a person who was a party to the
same or has personal knowledge thereof. In the absence or unavailability of such witnesses,
other competent evidence may be admitted (Sec. 2,Rule 11).
A recording of the telephone conversation or ephemeral electronic communication shall be
covered by the immediately preceding section. If the foregoing communications are recorded or

embodied in an electronic document, then the provisions of Rule 5 on Authentication of


Electronic Documents shall apply (Sec. 2, Rule 11).
NOTE:
If the ephemeral electroniccommunication or a telephone conversation is recorded, it now is no
longer ephemeral hence, shall be proven following the procedure provided for under Sec. 1,
Rule 11 of the Rules of Electronic Evidence.
PAROL EVIDENCE RULE
(Sec. 9, Rule 130)
Pertains to extraneous evidence or evidencealiunde, whether oral or written, which isintended
or tends to vary or contradict a complete and enforceable agreement embodied in a document.
Purpose:
To give certainty to written transactions,to preserve the reliability and to protect the sanctity of
written agreements.
Evidence of written agreements
When the terms of an agreement have been reduced to writing, it is to be considered as
containing all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of said written
agreement.
NOTE:
The term "agreement" includes wills.This rule forbids any addition or contradiction of the
terms of a written instrument by testimony purporting to show that different terms were
agreed upon by the parties, varying the purport of the written contract (SeaOil Petroleum Corp.
v.Autocorp Group, G.R. No. 164326, October 17, 2008).
APPLICATION OF THE PAROL EVIDENCE RULE:
Requisites for Applicability:
1. There is a valid contract;
2. The terms of the agreement are reduced to writing;
3. The agreement is between the parties and their successors in interest; and
4. There is a dispute as to the terms of said agreement.
When parol evidence can be introduced
A party may present evidence to modify, explain or add to the terms of written agreement if he
puts in issuein his pleadings:(FIVE)
1. An Intrinsic ambiguity, mistake or imperfection in the written agreement;
NOTE:
The rule allowing parol evidenceparticularly refers to an intrinsic ambiguity.
2. The Failure of the written agreement to express the true intent and agreement of the
parties thereto;

3. The Validity of the written agreement; or


4. The Existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.
NOTE:
Introducing parol evidence means offering extrinsic evidence that would modify, explain or add
to the terms of the written agreement, but it may only be allowed if the matter is put in issue in
the pleadings.
Even if there was a written agreement on a particular subject matter, the parol evidence rule
did not apply to or bar evidence of a collateralagreement between the same parties on thesame
or related subject matter, in the following instances:
a. Where the collateral agreement is not inconsistent with the terms of the written
contract (Robles v. Lizarraga Hermanos, 50Phil. 387);Where the collateral agreement has
not been integrated in and is independent of the written contract (id.), as where it is
suppletory to the original contract;
b. Where the collateral agreement is subsequent to (Filipinas Manufacturers Bankv.
Eastern Rizal Fabricators, G.R. No. 62741, 29 May 1987) or novatory of the
writtencontract (Canuto v. Mariano, 37 Phil. 840); and
c. Where the collateral agreement constitutes a condition precedent which determines
whether the written contract may become operative or effective (Henry W. Peabody &Co.
v. Bromfield, et al., 38 Phil. 841), but thisexception does not apply to a condition
subsequent not stated in the agreement.
With respect to evidence on collateral agreements, the same may be allowed provided they have
been put in issue in view of the provisions of par. (d) of Sec. 9 (Regalado).
KINDS OF AMBIGUITY
1. Intrinsic or latentambiguity when thelanguage of the writing is clear and intelligible
and suggests but a single meaning but some matter extraneous to the writing creates
the ambiguity.
2. Extrinsic or patent ambiguity that whichappears on the very face of the instrument,
and arises from the defective, obscure, or insensible language used, and requires
something to be added in order to ascertain the meaning of the words. In such case,
parol evidence is NOT admissible, otherwise the court would not thereby be construing
the contract but would be creating a contract between the parties.
3. Intermediate ambiguity refers to asituation where an ambiguity partakes of the
nature of both patent and latent ambiguity because the words of the writing, though
seemingly clear and with a settled meaning, is actually equivocal and admits of two
interpretations. Parol evidence, in such case, is admissible to clarify the ambiguity
provided that matter is put in issue by the pleader.
Falsa Demonstratio Non Nocet Cum De Corporel Constant

The legal maxim which means that false description does not vitiate a document if the subject
is sufficiently identified. The incorrect description shall be rejected as surplusage while the
correct and complete description standing alone shall sustain the validity of the writing.
Theory of Integration of Jural Acts (Previous Acts)
Previous acts and contemporaneous transaction of the parties are deemed integrated and
merged in the written agreement which they have executed. When the parties reduced their
agreement to writing, it is presumed that they have made the writing the only repository and
memorial of the truth, and whatever it is not found in the writing must be understood to have
been waived or abandoned.
However, collateraloralagreements are notprovable by parol evidence.
Collateral Oral Agreement
A contract made prior to or contemporaneous with another agreement and if oral and NOT
inconsistent with written agreement is admissible as exception to parol evidence rule.
BEST EVIDENCE
RULE
The issue is the
contents
of
a
document.

Establishes
a
preference for the
original document
over a secondary
evidence
thereof;
contemplates
the
situation
wherein
the original writing
is
not
available
and/or there is a
dispute
as
to
whether the said
writing
is
the
original.
Precludes
the
admission
of
secondary evidence
to
prove
the
contents
of
a
writing or document
if
the
original
document
is

PAROL EVIDENCE
RULE
The
issue
is
whether or not a
party is adding or
modifying the terms
of
the
written
agreement.
It is not concerned
with the primacy of
the evidence but
presupposes
that
the
original
is
available.

Precludes
the
admission of other
evidence to prove
the terms of a
document,
other
than the contents of
the document itself
for the purpose of

available, regardless
of whether or not it
varies the contents
of the original.
It can be invoked by
any litigant to an
action whether or
not said litigant is a
party
to
the
document involved.
Applies to all forms
of writing.

varying the terms of


the writing.

It can be invoked
only by the parties
to the document
and
their
successors
in
interest.
Applies to written
agreements
(contracts)
and
wills.

RULE 131
BURDEN OF PROOF AND PRESUMPTIONS
BURDEN OF PROOF AND BURDEN OF
EVIDENCE
PROOF
The establishment of a requisite degree ofbelief in the mind of the trier of fact as to the facts
in issue; the cumulation of evidence that persuades the trier of the facts.
BURDEN OF PROOF or onus probandi
The duty ofa party to present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law (Sec. 1, Rule 131). It is based on the maxim
ei incumbit probation qui dicit, no qui negat which means he who asserts, not he who
denies, must prove. (Martin v. Court of Appeals, 205 SCRA 191)
BURDEN OF EVIDENCE
Logical necessity on a partyduring a particular time of the trial to create a prima facie case in
his favor, or to destroy thatcreated against him by presenting evidence.
BURDEN OF
PROOF
Does not shift as it
remains
throughout
the
trial with the party
upon whom it is
imposed

BURDEN OF
EVIDENCE
Shifts from party to
party
depending
upon the exigencies
of the case in the
course of the trial
(when the other
party has produced
sufficient evidence
to be entitled as a

The burden of proof


is
generally
determined by the
pleadings filed by
the party.

It is on the party
who asserts the
affirmative of the
issue
at
the
beginning of the
case and continues
on him throughout
the case.
Burden
persuasion

of

matter of law to a
ruling in his favor)
The
burden
of
evidence
is
generally
determined by the
developments
of
the trial, or by the
provisions of the
substantive law or
procedural
rules
which may relieve
the
party
from
presenting evidence
on the fact alleged,
i.e. presumptions,
judicial
notice,
admissions.
Pertains
to
the
duty of a party to
go forward with the
evidence to over
throw prima facie
evidence
established against
him and passes
from party to party.
Burden of going
forward

NOTE:
In both civil and criminal cases, the BURDEN OF EVIDENCE lies on the party who asserts an
affirmative allegation.
In both civil and criminal cases, negative allegations do not have to be proved except where
such negative allegations are essential parts of the cause of action or defense in a civil case, or
are essential ingredients of the offense in a criminal case or the defenses thereto. (Regalado
citing Industrial Finance Corp. v. Tobias, GR No. L-41555)
CIVIL
CASES
Generally, the
burden
of
proof is on the
party
who
would
be
defeated if no
evidence were

CRIMINAL
CASES

given on either
side
1. The burden
of proof rests`
upon
the
plaintiff, with
respect to his
complaint;
Upon
whom the
burden of
proof
rests

2.
The
defendant
bears
the
burden
of
proof if he
raises
an
affirmative
defense which
he sets up in
answer to the
plaintiffs
cause
of
action or with
respect to his
counterclaim.

The burden of
proof is with
the
prosecution by
reason of the
presumption of
innocence.

3. The burden
of proof is on
the
crossclaimant, with
respect to his
cross-claim

Degree of
proof that
satisfies

Preponderanc
e of evidence

1. To sustain
conviction
evidence
of
guilt
beyond
reasonable
doubt
2. Preliminary
Investigation
engender a
well-founded
belief of the
fact
of
the
commission of
a crime
3. Issuance of

warrant
of
arrest

evidence
of
probable
cause,
i.e.,
that there is a
reasonable
ground
to
believe
that
the
accused
has committed
an offense

Upon
whom the
burden of
evidence
rests

The plaintiff
has to prove
his affirmative
allegations in
the complaint.
The
defendant
has to prove
the affirmative
allegations in
his
counterclaims
and
his
affirmative
defenses.

4. To warrant
the filing of
an
information
prima
facie
evidence
The
prosecution
has to prove
its affirmative
allegations in
the
information
regarding the
elements
of
the crime as
well as the
attendant
circumstances
.
The
defense
has to prove
its affirmative
allegations
regarding the
existence
of
justifying,
exempting
circumstances
,
absolutory
causes
or
mitigating
circumstances
.

PRINCIPLE OF NEGATIVATING AVERNMENTS


General rule:
Negative allegations need not beproved, whether in a civil or criminal action.
Exception:
Where such negative allegations areessential parts of the cause of action or defense in a civil
case, or are essential ingredients of the offense in a criminal case or defenses thereto.
Exceptions to the Exception:
However, in civil cases, even if the negative allegation is an essential part of the cause of
action or defense, such negative allegation does NOT have to be proved if it is only for the
purpose of denying the existence of a document which should properly be in the custody of the
adverse party.
In criminal cases, it is not incumbent upon the prosecution to adduce positive evidence to
support a negative averment, the truth of which is fairly indicated by the established
circumstances and which, if untrue, could readily be disproved by the production of
documents or other evidence probably within the defendants control or possession. (People v.
Macalaba G.R. Nos. 146284-86, Jan 20, 2003).
EQUIPOISE RULE OR EQUIPOISE DOCTRINE
The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty
and property without due process of law. (Sec. 1, Art.III, Constitution of the Philippines)
The doctrine refers to a situation where the evidence of the parties are evenly balanced or
there is doubt on which side the evidence preponderates.
The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty
and property without due process of law. (Sec. 1, Art. III, Constitution of the Philippines)
PRESUMPTIONS
Presumption
An inference of the existence or non-existence of a fact which courts are permitted to draw
from proof of other facts (In the Matter of the IntestateEstates of Delgado and Rustia, G.R. No.
175733, January 27, 2006)
NOTE:
A presumption is not evidence. Theymerely affect the burden of offering evidence (Evidence
[The Bar Lectures Series], Riano, 2009).
PRESUMPTION
OF LAW
A certain inference
must
be
made
whenever the facts
appear
which

PRESUMPTION
OF FACT
A
discretion
is
vested in a tribunal
as to the drawing
of inference.

furnish the basis of


the inference.
Reduced to fixed
rules and form
part of the system
of jurisprudence.

Derived wholly and


directly
from
circumstances
of
the particular case
by
means
of
common
experience
of
mankind.
(Regalado)

CLASSES OF PRESUMPTION
1. Presumption of Law (praesumptiones juris)
An assumption which the law requires to be made from a set of facts; a deduction which
the law expressly directs to be made from particular facts.
2. Presumption of Facts (praesumptioneshominis)
An assumption is made from thefacts without any direction or positive requirement of a
law; a deduction which reason draws from the facts proved without an express direction
to that effect.
CLASSES OF PRESUMTION OF LAW
1. Conclusive Presumption (absolute or juris et de jure)
One which cannot be overcomeby evidence to the contrary (Sec. 2, Rule 131).
2. Disputable Presumption (rebuttable or juristantum or prima facie)
One which issatisfactory if uncontradicted, but may be contradicted and overcome by
other evidence. (Sec. 3, Rule 131)
Effect of a Presumption
A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. One need not introduce in evidence to prove the fact
for a presumption is prima facie proof of the fact presumed (Diesel Construction Co., Inc. v.
UPSIProperty Holdings, Inc., G.R. No. 154937, March 24, 2008).
CONCLUSIVE PRESUMPTIONS
(Presumptions juris et de jure)
(Sec. 2, Rule 131)
Conclusive Presumptions
When the presumption becomes irrebuttable upon the presentation of the evidence and any
evidence tending to rebut the presumption is not admissible. (Riano, 2013)
CLASSES OF CONCLUSIVE PRESUMTION
1. Estoppel in pais
Whenever a party has, by hisown declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing is true, and to act upon such belief,

he cannot, in any litigation arising


be permitted to falsify it.

out

of

such declaration, act or omission,

Elements of Estoppel in pais as to Party Estopped:


a. Conduct amounting to false representation or concealment of material facts, or at least
calculated to convey the impression that the facts are otherwise than, and inconsistent
with those which the party subsequently attempted to assert;
b. Intent or at least expectation that the conduct shall be acted upon by, or at least
influence the other party; and
c. Knowledge, actual or constructive, of the real facts.
Elements of Estoppel in Pais as to Party Claiming Estoppel:
a. Lack of knowledge and of the means of knowledge of the truth as to the facts in question;
b. Reliance in good faith, upon the conduct or statement of the party to be estopped; and
c. The action or inaction based thereon is of such character as to change the position or
status of the party claiming the estoppel, to his injury, detriment, or prejudice.
2. Estoppel Against Tenant: The tenant is notpermitted to deny the title of his landlord at
the time of the commencement of the relation of landlord and tenant between them.
NOTE:
What a tenant is estopped from denying isthe title of his landlord at the time of the
commencement of the landlord-tenant relation. If the title is one that is alleged to have been
acquired subsequent to the commencement of that relation, the presumption will not apply.
The tenant may show that the landlords title has expired or been conveyed to another or to
himself.
DISPUTABLE PRESUMPTIONS
(Presumptions juris tantum)
(Sec. 3, Rule 131)
Disputable Presumptions
If the presumptions may be contradicted or overcome by other evidence. These are satisfactory,
if uncontradicted and overcome by other evidence.
Examples of Disputable Presumptions:
a. That evidence willfully suppressed wouldbe adverse if produced
Requisites:
i.
That the evidence is material;
ii.
That the party had the opportunity to produce the same; and
iii.
That the said evidence is available only to said party.
NOT APPLICABLE:
1. The suppression is not willful;
2. The evidence that is withheld is merely corroborative or cumulative;
3. The evidence is at the disposal of or equally available to both parties;
4. The suppression is an exercise of a privilege.

b. That a person found in possession of athing taken in the doing of a recent wrongful act
is the taker and the doer of the whole act; otherwise, that things which a person
possesses, or exercises acts of ownership over, are owned by him.
Requisites:
i.
The crime was actually committed;
ii.
The crime was committed recently;
iii.
The stolen property was found in the possession of the accused; and
iv.
The accused is unable to satisfactorily explain his possession thereof.
c. That a letter duly directed and mailed wasreceived in a regular course of the mail.
Requisites:
i.
The letter was properly addressed with postage prepaid, and
ii.
That it was actually mailed.
d. Presumptions of Death
1. Absence of seven (7) years If it is unknownwhether or not the absentee is still
alive, he is considered dead for allpurposes but not for the purpose of
succession.
2. Absence of ten (10) years The absentee shallbe considered dead for the
purpose of opening his succession only after an absence of ten (10) years. Before
the lapse of ten (10) years, he shall not be considered dead if the purpose is the
opening of his succession.
3. Absence of five (5) years In relation to theimmediately preceding number, if
the absentee disappeared after the age of seventy-five (75) years, his absence for
five (5) years is sufficient for the purpose of opening his succession in which
case, it is not necessary to wait for the lapse of 10 years
4. Absence of four (4) years A person isdeemed considered dead for all purposes
even for the purpose of the division of his estate among his heirs under certain
extraordinary circumstances after a relatively shorter time that any of the above
periods, in any of the following cases:
NOTE:
If the person is on board a vessel that was not shown who died first, and there are no
particular circumstances from which it can be inferred, the survivorship is determined from
the probabilities resulting from strength and age of the sexes.
e. That if there is a doubt, as between twoor more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, they shall be considered to have
died at the same time.
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
a. The electronic signature is that of the person to whom it correlates;

b. The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or to
indicate such person's consent to the transaction embodied therein; and
c. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6, Rules onElectronic Evidence).
Disputable
Presumptions Relating to Digital Signatures
Upon the authentication of a digital signature, it shall be presumed, in addition to those
mentioned above, that:
a. The information contained in a certificate is correct;
b. The digital signature was created during the operational period of a certificate;
c. No cause exists to render a certificate invalid or revocable;
d. The message associated with a digital signature has not been altered from the time it
was signed; and
e. A certificate had been issued by the certification authority indicated therein. (Sec. 3,
Rule 6, Rules on Electronic Evidence)
QUANTUM OF EVIDENCE
PROOF BEYOND REASONABLE DOUBT
It does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required (Sec. 2,Rule 133).
Moral Certainty
That degree of proof which produces conviction in an unprejudiced mind; a certainty that
convinces and satisfies the reason and conscience of those who are to act upon it.
Reasonable Doubt
It does not refer to any doubtor a mere possible doubt but that state of the case which, after a
comparison of all the evidence, does not lead the judge to have in mind, a moral certainty.
Rules:
a. Accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
b. Moral certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
c. An extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti (Sec. 3, Rule 133).
Totality of circumstances test
This is used regarding the admissibility and reliability of out-of-court identification of suspects.
The following are the factors:
a. The witness opportunity to view the criminal at the time of the crime;
b. The witness degree of attention at that time;
c. The accuracy of any prior description given by the witness;
d. The level of certainty demonstrated by the witness at the identification;

e. The length of time between the crime and the identification; and
f. The suggestiveness of the identification procedure (People v. Teehankee, Jr., G.R.
Nos.111206-08, 6 Oct. 1995).
Danger Signs that the identification may be erroneous even though the method used is proper
(NOT EXHAUSTIVE):
a. The witness originally stated that he could not identify anyone;
b. The witness knew the accused before the crime but made no accusation against him
when questioned by the police;
c. A serious discrepancy exists between the witness original description and his actual
description of the accused;
d. Before identifying the accused at the trial, the witness erroneously identified some
other person;
e. Other witnesses of the crime fail to identify the accused;
f. Before trial, the witness sees the accused but fails to identify him;
g. Before the commission of the crime, the witness had limited opportunity to see the
accused;
h. The witness and the person identified are of different racial groups;
i. During his original observation of the offender, the witness was unaware that a crime
was involved;
j. A considerable time elapsed between the witness view and his identification of the
accused;
k. Several persons committed the crime; and
a. The witness failed to make a positive trial identification (People v. Pineda, G.R. No.141644,
27 May 2004 citing Patrick M. Wall, Eyewitness Identification in Criminal Cases 74).
Corpus delicti
It is the actual commission by someone of the particular crime charged.
It is a common fact made up of two things:
1. The existence of a certain act or result forming the basis of the criminal charge; and
2. The existence of a criminal agency as the cause of the act or result.
The identity of the accused is not a necessary element of the corpus delicti (16 C.J.S. 771).
The corpus delicti is proved when the evidence onrecord shows that the crime prosecuted had
been committed (People v. Santos, et al., CA-G.R. No. 3767, 8 May 1950).
There must be independent proof of the corpusdelicti. The evidence may be circumstantial
but,just the same, there should be some evidence substantiating the confession (U.S. v. De la
Cruz, 2Phil. 148).
The expression corpus delicti means that there should be some evidence apart from the
confession tending to show the commission of the crime (People v. Bantagan, et al., 54
Phil.834).
Circumstantial Evidence, when sufficient
Circumstantial evidence is sufficient for conviction if:
a. There is more than one circumstance;

b. The facts from which the inferences are derived are proven;
c. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt; and
d. The fact on which the inference may be legitimately rest must be established by direct
evidence. (People v. Usis, 3 Phil. 373; People v. Dino, 46 Phil. 295) An inference cannot be
based on another inference. (U.S. v. Ross, 92 P ed. 281)
In order to convict a person accused of a crime on the strength of circumstantial evidence
alone, it is incumbent upon the prosecution to present such circumstantial evidence which will
and must necessarily lead to the conclusion that the accused is guilty of the crime charged
beyond reasonable doubt, excluding all and each and every reasonable hypothesis consistent
with his innocence (People v. Tan-Choco, 76 Phil. 463).
Not only the prior and coetaneous actuations of the accused in relation to the crime but also
his acts or conduct subsequent thereto can be considered as circumstantial evidence of guilt
(Regalado).
While the motive of the accused is generally immaterial not being an element of the crime, such
motive becomes important when the evidence of the crime is purely circumstantial.
PREPONDERANCE OF EVIDENCE
By a preponderance of evidence is meant simply evidence which is of greater weight, or more
convincing, than that which is offered in opposition to it (32 C.J.S.) In civil cases, the party
having the burden of proof must establish his case by preponderance of evidence (Sec. 1,
Rule133). In simple terms, it meansgreater or superior weight of evidence
In determining where the preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstances of the case:
l. the witnesses' manner of testifying;
m. their intelligence;
n. their means and opportunity of knowing the facts to which there are testifying;
o. the nature of the facts to which they testify;
p.
the probability or improbability of their testimony;
q. their interest or want of interest;
r. their personal credibility so far as the same may legitimately appear upon the trial;
s. the court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.
NOTE: It is the greater weight of evidence, notnecessarily established by the greater number of
witnesses testifying to a fact but by evidence that has the most convincing force.
SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a reasonable mind might accept as adequate to justify
a conclusion (Sec. 5, Rule 133).
NOTE:
In a petition for Writ ofAmparo, theparties shall establish their claims by substantial evidence
(Sec. 17, Rule on the Writ of Amparo,effective October 24, 2007).

Rules:
a. Applicable to cases filed before administrative or quasi-judicial bodies.
b. A fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
CLEAR AND CONVINCING EVIDENCE
Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or
conviction as to allegations sought to be established.
NOTE: In his separate opinion inPurganan, thenAssociate Justice then later Chief Justice
Reynato S. Puno, proposed that a new standard which he termed clear and convincing
evidence should be used in granting bail in extradition cases. According to him, this standard
should be lowerthan proof beyond reasonable doubt but higher than preponderance of evidence
(Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19,
2007).
Factors in the evidentiary weight of Electronic Evidence
1. Realiability of the manner in which it was generated, stored or communicated;
2. Realibility of the manner in which the originator was identified
3. Integrity of the information and communication system;
4. Familiarity of the witness or the person who made the entry with the communication
and information system;
5. Nature and quality of the information and communication system;
6. Other factors which the court may consider.
All matters relating to the admissibility and evidentiary weight of the electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on the authentic record.
The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right of the adverse party.
RULE 132
AUTHENTICATION AND PROOF OF
DOCUMENTS
AUTHENTICATION
The introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it to be; that which is necessary to establish the
genuineness of a document.
DOCUMENT

A deed, instrument or other duly authorized paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, 31 SCRA 764)
NOTE:
For documents to be considered as documentary evidence, it must be offered as proof of their
contents. (Sec. 2, Rule 130). If the document is not offered for that purpose, the documents is a
mere object evidence as when the purpose is merely to prove its existence.
CLASSES OF DOCUMENTS (Sec. 19, Rule 132)
1. Public Documents
a. The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or
of a foreign country;
b. Documents acknowledged before a notary public except last wills and
testaments;
c. Public records kept in the Philippines, of private documents required by law to
be entered therein; and
d. A document electronically notarized in accordance with the rules promulgated
by the Supreme Court (Rules onElectronic Evidence, A.M. No. 01-7-01-SC).
2. Private documents
All other writings are private.
NOTE:
The classification of documents intoofficial, public, commercial and private documents under
the Revised Penal Code is different. But when these types of documents are offered in
evidence, they fall into either public or private documents.
Under the rules of evidence, official documents are public documents (Sec. 19) and governed
by Sec. 30 while commercial and private documents would fall under private documents
except private documents required by law to be entered in public records are considered as
public documents and are subject to Sec. 27, Rule 132.
When
a.
b.
c.

authentication of document not required


the writing is an ancient document, under the requisites of Sec. 21;
the writing is a public document or record under Sec. 19;
it is a notarial document acknowledged, proved or certified in accordance with Sec. 30;
or
d. the authenticity and due execution of the document has been expressly or impliedly
admitted by a failure to deny the same under oath, as in the case of actionable
documents

PROOF OF AUTHENTICITY
PROOF OF PRIVATE DOCUMENT (Sec. 20, Rule132)
PRIVATE DOCUMENT

The due execution and authenticity must be proved:


a. By anyone who saw the document executed or written; or
b. By evidence of the genuineness of the signature or handwriting of the maker.
NOTE:
The manner of authenticating a documentrequired by Sec. 20, Rule 132, applies only when a
private document is offered as authentic as when it is offered to prove that the document was
truly executed by the person purported to have made the same.
WHEN EVIDENCE BY AUTHENTICITY OF PRIVATE DOCUMENT NOT NECESSARY (Sec. 21,
Rule 132)
ANCIENT DOCUMENT
Requisites:
a. It is more than thirty (30) years old at the time it is introduced in evidence;
b. It is produced from a custody in which it would naturally be found if genuine; and
c. It is unblemished by any alterations or circumstances of suspicion.
ACTIONABLE DOCUMENT
An actionable document must be pleaded:
a. By reciting the substance of the document in the pleading and attaching to the pleading
a copy of that document; or
b. Without attaching the document to the pleading, by reciting into the pleading the entire
text of the document (Sec. 7, Rule 8).
NOTE:
The genuineness and due execution of thedocument are deemed admitted when NOT denied
under oath by the party against whom it was pleaded. It is not even necessary to formally offer
it in evidence (Sec. 8, Rule 8).
HOW GENUINENESS OF HANDWRITING PROVED (Sec. 22, Rule 132)
The authenticity and due execution of aprivate document are proved, inter alia, by evidence of
the genuineness of the handwriting of the maker (Sec. 20, Rule 132).
The genuineness of handwriting may be proved:
a. By any witness who believes it to be the handwriting of such person because he has
seen the person write or he has seen writing purporting to be his upon which the
witness has acted or been charged.
b. By a comparison, made by the witness or the court with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to be genuine to
the satisfaction of the judge.
This provision does not require experttestimony to prove the handwriting of a person. A
handwriting is proved by:
a. A witness who actually saw the person writing the instrument (Sec. 20[a]);
b. A witness familiar with such handwriting (Sec.22) and who can give his opinion
thereon,such opinion being an exception to the opinion rule (Sec. 50[b], Rule 130);

c. A comparison by the court of the questioned handwriting and admitted genuine


specimens thereof (Sec. 22); and
d. Expert evidence (Sec. 49, Rule 130) (Regalado).
NOTE:
Sec. 22 merely enumerates the methods of proving handwriting but does not give preference or
priority to a particular method (Lopez v. CA, etal., G.R. No. L-31494, 23 Jan. 1978).
PROOF OF OFFICIAL RECORD (Sec. 24, Rule 132)
The record of a public document may be evidenced by:
1. Domestic Record (record kept in the Philippines); an official publication; or by a copy of
the document with the attestation the officer having legal custody of the record, or his
deputy;
2. Foreign Record (record kept in a foreign country); by an official publication; or by a copy
of the document with the attestation the officer having legal custody of the record, or
his deputy and accompanied by a certificate by a secretary of the embassy or legation,
consul general, consul, vice-consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
ATTESTATION OF A COPY
The attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official capacity of
the attesting officer, if there be any, or if he be the clerk of court having a seal, under the seal
of such court (Sec.25, Rule 132).
NOTE:
The certificate and attestation are requiredbecause of the general rule on the irremovability of
public records.
Where the special power of attorney is executed and acknowledged before a notary public or
other competent officer in a foreign country, it cannot be admitted in evidence in Philippine
courts unless it is certified as such in accordance with Sec. 24, Rule 132 by a secretary of the
embassy or legation, consul-general, consul, vice consul, consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept of
said public document and authenticated by the seal of his office (Lopez v. CA, G.R. No. 77008,
Dec. 29, 1987;Heirs of Medina v. Natividad, G.R. No. 177505, Nov. 27, 2008).
IRREMOVABILITY OF PUBLIC RECORD (Sec. 26, Rule 132)
General rule
Any public record, an official copyof which is admissible in evidence, must not be removed from
the office in which it is kept.
Exception
It may be removed upon order of acourt where the inspection of the record is essential to the
just determination of a pending case.

PUBLIC RECORD OF A PRIVATE DOCUMENT (Sec. 27, Rule 132)


It may be proved by:
a. The original record; or
b. A copy thereof attested by the legal custodian of the record and accompanied by an
appropriate certificate that such officer has the custody.
What is considered a public document is not the private writing, but the public record thereof.
So, if a private writing itself is inserted officially into a public record, its recordation or
incorporation into the public records becomes a public document, but that does not make the
private writing itself a public document so as to make it admissible without certification
(Republic v. Worldwide Insurance & Surety Co., et al., [CA], 62 O.G. 8857).
PROOF OF LACK OF RECORD (Sec. 28, Rule 132)
Consists of written statement signed by an officer having custody of an official record or by his
deputy stating that after diligent search no record or entry of a specified tenor is found to exist
in the records of his office and accompanied by a certificate that such officer has the custody of
official records.
HOW JUDICIAL RECORD IMPEACHED (Sec. 29, Rule 132)
JUDICIAL RECORD
The record of judicialproceedings. It does not only include official entries or files or the official
acts of a judicial officer but also the judgment of the court.
A judicial record is admissible in evidence in a subsequent action if it is relevant to an issue
involved therein.
Grounds for Impeaching a Judicial Record
A judicial record may be impeached by evidence of:
a. Want of jurisdiction;
b. Collusion between the parties; or
c. Fraud in the party offering the record, in respect to the proceedings
PROOF OF NOTARIAL DOCUMENTS (Sec. 30, Rule132)
NOTARIAL DOCUMENT
One duly acknowledgedbefore a notary public. It is a public document. A recital in the
certificate of acknowledgment is prima facie evidence of the execution of theinstrument or
document involved.
To overcome recitals in a notarial document, evidence must be clear, convincing and beyond a
mere preponderance (Monteverde v. Infante, 45 O.G. No. 1313).
Every instrument duly acknowledged or proved and certified as provided by law may be
presented in evidence without further proof, the certificate of acknowledgment being prima
facie evidence of the execution of the instrument or document involved.
Proof of Electronically Notarized Document

A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court (Sec. 3, Rule 5, Rules onElectronic Evidence).
NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
The probative value of public instruments depends on the kind of document that is presented
in evidence (Dupilas v. Cabacungan, 30 Phil. 354).
HOW TO EXPLAIN ALTERATION IN A DOCUMENT (Sec. 31, Rule 132)
The party producing a document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute, must account for the
alteration. He may show that:
a. the alteration was made by another, without his concurrence;
b. was made with the consent of the parties affected by it;
c. was otherwise properly or innocent made; or
d. that the alteration did not change the meaning or language of the instrument.
If he fails to do that, the document shall not be admissible in evidence.
A party presenting the writing should account for the alteration when he introduces the paper
inevidence, and not endeavor to explain thealteration afterwards (Vda. De Bonifacio, et al. v.
B.L.T. Bus Co., Inc., 34 SCRA 618).
If a change is shown to have been made after the execution of the instrument, it will be
presumed to have been made by the party producing it, or with his privity and fraudulently in
so far as legal fraud attaches to a willful change of an instrument by one of the parties thereto,
and the burden is upon him to show that the alteration was not made by him, or by those
under whom he claims, or with his or their privity or consent (3 C.J.S. 992).
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE (Sec. 33, Rule 132)
General rule
Documents written in an unofficiallanguage shall NOT be admitted as evidence.
Exception
When the documents areaccompanied with a translation into English or Filipino.
QUALIFICATION OF A WITNESS
WITNESS
One who, being present, personallysees or perceives a thing; a beholder, spectator or
eyewitness; one who testifies to what he has seen or heard, or otherwise observed.

PROSECUTION WITNESS
A person who is not anaccused and who is called to testify relating to a criminal case.
STATE WITNESS
One of two or more personsjointly charged with the commission of a crime but who is
discharged with his consent so that he can be a witness for the state.
WITNESSES; THEIR QUALIFICATIONS (Sec. 20, Rule 130)
All persons who can perceive, and perceiving, can make known their perception to others may
be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime shall
NOT be a ground for disqualification unless otherwise provided by law.
QUALIFICATIONS OF A WITNESS
1. He can perceive; and in perceiving,
2. He can make known his perception to others (Sec. 20, Rule 130);
3. He must take either an oath or affirmation (Sec. 1, Rule 132); and
4. He must not possess the disqualifications imposed by the law or the rules.
NOTE:
The ability to make known the perception of the witness to the court involves two factors:
a. the ability to remember what has been perceived; and
b. the ability to communicate the remembered perception
Consider
a
oath and who has
event which he is
Evidence, 2009)
NOTE:
A
prospective
has the following
a. To
quality of
b. To
testimonial
c. To Relate
narration
d. To
Truth

sincerity.

COMPETENCE
A matter of law or
a matter of rule.
In deciding the
witness
competence,
the
court
will
not
inquire into the
trustworthiness of
a witness.
It has reference to
the
basic
qualifications of a
witness
as
his
capacity
to
perceive
and
communicate his
perceptions
to
others.
It
also
includes
the
absence of any of
the
basic
qualifications
imposed upon a
witness.

CREDIBILITY
It has nothing to
with the law or
with the rules.
It is the weight and
trustworthiness or
reliability of the
testimony.

It refers to the
believability of a
witness.

witness who has taken the


personal knowledge of the
going
to
testify.
(Riano,

witness must show that he


abilities.
observe the testimonial
perception;
Remember

the
quality of memory
the testimonial quality of
Recognize a duty to tell the
the

testimonial

quality

of

Factors that do not affect the


competency of a witness:
a. Religious belief;
b. Political belief;
c. Interest in the outcome of the case;
or
d. Conviction
of
crime,
unless
otherwise provided by law.
Persons disqualified to be a witness:
1. Disqualified by reason of his mental
incapacity or immaturity (Sec. 21,
Rule130);
2. Disqualified by reason of marriage
(Sec. 22,Rule 130);
3. Disqualified by reason of death or
insanity of adverse party (Sec. 23,
Rule 130);
4. Disqualified by reason of privileged
communication (Sec. 24, Rule 130);
or
5. When disqualified by law or these
Rules (e.g.,Art. 821, Civil Code of
the Philippines).

NOTE:
The
qualifications
and
disqualifications
ofwitnesses
are
determined as of the time the witnesses
are produced for examination in court or at
the
taking
of
their
depositions
(Regalado,Florenz.
D.
Remedial
Law
Compendium Vol. II, 2008.
NOTE: Questions concerning the credibility of
awitness are best addressed to the sound
discretion of the trial court as it is in the best
position to observe his demeanor and bodily
movements.
Voir Direliterally means to speak the truth.
Voir
Dire
Examinationthe
preliminaryexamination under oath where

the witness is presented to answer as to


his competency.
DISQUALIFICATIONS OF WITNESSES
DISQUALIFICATION BY REASON OF
MENTAL INCAPACITY OR IMMATURITY
(Sec. 21, Rule 130)
Disqualification by Reason of Mental
Incapacity
Requisites:
a. The person must be incapable of
intelligently making known his
perception to others; and
b. His incapability must exist at the
time
of
his
production
for
examination.
NOTE:
Amental retardate is not for this reason
alone disqualified from being a witness. As
in thecase of other witnesses, acceptance of
his testimony depends on its nature and
credibility or, otherwise put, the quality of
his perceptions and the manner he can
make them known to the court. (People vs.
Salomon, GR. No. 96848January 21, 1994)
A deaf-mute is not incompetent as awitness.
All persons who can perceive, and
perceiving,
can
make
known
their
perception to others, may be witnesses.
Deaf-mutes are competent witnesses
where they:
1. can understand and appreciate the
sanctity of an oath;
2. can comprehend facts they are going
to testify on; and
3. can
communicate
their
ideas
through a qualified interpreter.
(People vs Aleman, G.R. No. 181539,
July 24, 2013)
Disqualification by Reason of Immaturity

Requisites:
a. The mental maturity of the witness
must render him incapable of
perceiving the facts respecting which
he is examined;
b. He is incapable of relating his
perception truthfully;
c. His incompetency must occur at the
time the witness perceives the event
including his incapability to relate his
perceptions truthfully.
NOTE:
The rule on disqualification by reason
ofimmaturity must however, be construed in
relation to the Rule on Examination of a Child
Witness (A.M. No. 00-4-07-SC, Effective Dec.
15,2000).
The
requirements
then
of
a
competency as a witness are the:
a. capacity of observation,
b. capacity of recollection, and
c. capacity of communication.

child's

And in ascertaining whether a child is of


sufficient intelligence according to the
foregoing requirements, it is settled that the
trial court is called upon to make such
determination. (Peoplevs. Mendoza, GR. No.
113791, February 22, 1996)
As long as the witness can convey ideas by
words or signs and give sufficiently intelligent
answers to questions propounded, he is a
competent witness even if he is feeble-minded
(People v. De Jesus, L-39087, 27 April 1984) or
is a mental retardate(People v. Palma, G.R. No.
69152, 23 Sept. 1986) or is a schizophrenic
(People v. Baid, G.R. No.129667, 31 July 2000)
(Regalado).
DISQUALIFICATION BY REASON OF
MARRIAGE
(Sec. 22, Rule 130)
MARITAL DISQUALIFICATION RULE

During their marriage, neither husband nor


wifemay testify for or against the other
without the consent of the affected spouse.
NOTE:
The benefit of the rule
waivedimpliedly or expressly.

may

be

Requisites:
a. The marriage is valid and existing as
of the time of the offer of testimony;
b. Either spouse must be a party to the
case;
c. No consent was obtained from the
spouse-party; and
d. The controversy is not a civil case by
one spouse against the other, or a
criminal case for a crime committed
by one against the other or the
latters
direct
descendants
or
ascendants.
Exception
In a civil case by one against the other, or in
a criminal case for a crime committed by
one against the other or the latters direct
descendants or ascendants.
NOTE:
The right to invoke this disqualification is
apersonal one and it belongs to the partyspouse. Therefore, he or she alone can claim
or waive it.
Reasons for the rule:
a. There is identity of interests between
the husband and wife.
b. If one were to testify for or against
the other, there is consequent
danger of perjury.
c. To
guard
the
security
and
confidences of private life and to
prevent domestic disunion.
d. Where there is want of domestic
tranquility, there is danger of
punishing one spouse through
hostile testimony of the other.

e. The societys intent to preserve the


marriage
relations
and
promote
domestic peace.
When an offense directly attack or directly
and vitally impairs, the conjugal relation, it
comes within the exception to the statute that
one shallnot be a witness against the other
except in a criminal prosecution for a crime
committed (by) one against the other (Ordonio
v. Daquigan, L-39012, 31 Jan. 1975 citing
Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25
Okl. 314).
DISQUALIFICATION BY REASON OF
DEATH OR INSANITY OF ADVERSE
PARTY
(Sec. 23, Rule 130)
DEADMANS STATUTE OR SURVIVORSHIP
DISQUALIFICATION RULE
It provides that if one party to the alleged
transaction is precluded from testifying by
reason of death, insanity or other mental
disabilities, the surviving party is not entitled
to undue advantage of giving his own
uncontradicted and unexplained account of
the transaction.
Purpose
To discourage perjury and protect theestate
from fictitious claims.
NOTE:
This rule applies only to a civil case or
aspecial proceeding (Regalado, Remedial
LawCompendium, Vol. II, 2008 ed.).
Requisites:
a. The witness offered for examination is
the plaintiff or assignor of a party to a
case or is a person in whose behalf a
case is prosecuted;
b. The case is against an executor or
administrator or other representative
of a deceased person or of unsound
mind;

c. The case is upon a claim or demand


against the estate of such person
who is deceased or of unsound
mind; and
d. The testimony to be given is on any
matter of fact occurring before the
death of such deceased or before
such person became of unsound
mind.
Exceptions:
1. Ordinary witness;
2. When
the
plaintiff
is
a
corporation,
the
officers
or
stockholders are not disqualified;
3. When there is an imputation of
fraud against the deceased, the
plaintiff is not barred from testifying
to such fraud;
4. When the plaintiff is the executor,
administrator or legal representative
of the deceased, or a person of
unsound mind, the defendant is free
to testify against the plaintiff (Razon
v. IAC, 207 SCRA 234);
5. When the survivors testimony refers
to a negative fact;
6. When the survivors testimony is
favorable to the deceased;
7. When the executor or administrator
waives the benefit of the rule; and
8. When the transaction which gives
rise to the claim was transacted to
by the plaintiff and an agent of the
deceased.
NOTE:
It is not applicable to bar corporate
officersor stockholders from testifying in
support of a claim of the corporation or to
testimony concerning a conversation with
the deceased president of a defendant
corporation, as none of these persons is a
party or assignor of a party.
Persons Entitled to Invoke the Protection
of the Dead Mans Statute

1. The executor, administrator and any


other representative of a deceased
person, when they are the defendants
in a claim against the estate of the
deceased.
2. A person of unsound mind in a claim
filed against him.
Since the purpose of this rule is to discourage
perjury and protect the estate from fictitious
claims, the prohibition does not apply, even if
all the four requisites above are present,
where the testimony is offered to prove a
claim less than what is established under a
written document (Icard v. Masigan, et al., 71
Phil. 419), or is intended to prove a fraudulent
transaction of the deceased (Ong Chua v.
Carr, 53 Phil. 975), providedsuch fraud is first
establishedaliunde (Babao v. Perez, 102 Phil.
756).
Meaning of assignors
Assignor of a cause of action which has arisen
and not the assignor of the right before any
cause of action has arisen (Herrera).
Meaning of Representative
If a party is so placed in a litigation that he is
called upon to defend that which he has
obtained from a deceased person, and make
the defense which the deceased might have
had, if living, or to established a claim which
A: False. The said rule bars only partiesplaintiff and their assignors, or persons
prosecuting a claim against the estate of a
deceased; it does not cover Maria who is a
mere
witness.
Furthermore,
the
disqualification is in respect of any matter
of fact occurring before the death of said
deceased (Sec. 23, Rule 130, Rules of Court,
Razon v. Intermediate Appellate Court, 207
SCRA 234 [1992]). It is Pedro who filed the
claim against the estate of Jose.
SURVIVORSHIP
DISQUALIFICATIO

MARITAL
DISQUALIFICATIO

the deceased might have been interested to


establish, if living, then he may sais in that
litigation to represent a deceased person;
but where he is not standing in the place of
the deceased person, and asserting a right
of the deceased is, where the right of the
deceased himself, at the time of his death,
is not in any way involved), and the question
is not what was the right of the deceased at
the time of his death, but merely to whom
has the right descended, in a such a contest
neither party can be said to represent the
deceased. (Go Chi Gun v. Co Cho, G.R. No. L5208, 28 February 1955 citing McCoy vs.
Conrad, 64 Neb. 150, 89 N. W. 665)
Waiver of the Rule
The survivorship disqualification rule is
intended to benefit the estate of the
deceased or insane person, hence, this
protection may be waived by:
a. Failing to object to the testimony;
b. Cross-examining the witness on
the prohibited testimony (Santos v.
Santos, 366SCRA 395); or
c. By offering evidence to rebut the
testimony.
Q: True or False. The surviving parties rule
bars Maria from testifying for the claimant
as to what the deceased Jose had said to
her, in a claim filed by Pedro against the
estate of Jose. Explain. (Bar 2007)
N RULE
Partial
disqualification as
the witness is only
prohibited
from
testifying matters of
fact
occurring
before the death of
a deceased person
or
before
such
person
become
insane.
Applies only to a
civil case or a

N RULE
Complete
and
absolute
disqualification.

Applies to a civil or
criminal
case

special proceeding
over the estate of a
deceased or insane
person.

subject to exception.

NOTE:
If death has closed the lips of one party,the
policy of the law is to close the lips of the
other party (Goni v. CA, GR No. L-77434,
23September 1986). This is to prevent
thetemptation to perjury.
PRIVILEGED COMMUNICATIONS
(Sec. 24, Rule 130)
PRIVILEGED COMMUNICATION RULE
A rule of law that, to protect a particular
relationship or interest, either permits a
witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone, usually one of the
parties, to prevent the witness from
revealing certain information.
Kinds of Privileged Communications:
1. Marital Privilege Rule (Sec. 24 [a],
Rule 130)
2. Attorney-Client Privilege (Sec. 24 [b],
Rule130)
3. Physician-Patient Privilege (Sec. 24
[c], Rule130)
4. Priest/Minister-Penitent
Privilege
(Sec. 24 [d],Rule 130)
5. Privileged
Communications
to
Public Officers (Sec. 24 [e], Rule 130)
6. Editors cannot be compelled to
disclose the source of published
news (R.A. 53, asamended by R.A.
1477)
7. Trade secrets
8. Voters may not be compelled to
disclose for whom they voted;
9. Information contained in tax census
returns;
10. Bank deposits (Air Philippines v.
Penswell, Inc.G.R. No. 172835, Dec.
13, 2007)

11. Information made at conciliation


proceedings (Art. 233, Labor Code)
MARITAL PRIVILEGED RULE
Requisites:
a. There must be a valid marriage
between the husband and wife;
b. The privilege is invoked with respect
to
a
confidential
information
between the spouses during said
marriage; and
c. The spouse against whom such
evidence is being offered has not
given his/her consent to such
testimony.
Exceptions
1. In a civil case instituted by one
against the other, and
2. In a criminal case for a crime
committed by one against the other
or the latters direct descendants or
ascendants.
NOTE:
The
exceptions
under
the
MaritalDisqualification Rule (Sec. 22, Rule
130) and Marital Privileged Communication
Rule (Sec.24[a], Rule 130) are the same.
When Communication Heard By Third
Persons
a. Communication overheard by a
third person without the knowledge
of the spouses is still confidential.
However, the third party is not
disqualified.
b. Communication
made
in
the
presence of thirdpersons including
children of the family with their
knowledge, is NOT confidential.
However, where it is uttered in the
presence of children of the family
who are too young to understand
what is said, the communication is
confidential (Evidence,Riano, 2009).

Where there is collusion and voluntary


disclosure to third party, the latter
becomes an agent and cannot testify
(Herrera).
The privilege continues even after death,
unless it is a dying declaration (U.S. v.
Antipolo, 37 Phil.726).
MARITAL
DISQUALIFICATION
RULE
(Sec. 22, Rule 130)
Covers all the facts,
occurrences
or
information relating
to the pother spouse
received prior to or
during the marriage.
It
only
applies
during the marriage.
Requires that the
spouse against for or
whom the testimony
is offered is a party
to the action.
It
constitutes
a
prohibition against
any testimony for or
against the partyspouse.

Ceased
after
dissolution
of
marriage.
Absolute
disqualification.

MARITAL
PRIVILEGED
COMMUNICATION
(Sec. 24[a], Rule
130)
Covers confidential
communications
received by one
spouse from the
other
spouse
during
the
marriage.
It applies during
and
after
the
marriage.
Neither
spouse
need not be a party
to the action.

What is prohibited
is the examination
of one spouse to
protect
the
confidential
communication
between
the
spouses.
Lasts even after the
death of either of
the spouses.
Partial
disqualification as
it applies only to
confidential
communications
between
the
spouses.

ATTORNEY-CLIENT PRIVILEGED RULE


Requisites:
a. There is an attorney and client
relation
or with
a view to
professional
employment
There
must be a communication made by
the client to the attorney or an
advice given by the attorney to his
client;
b. The communication or advice must
have been given in confidence;
c. The communication or advice must
have been given either in the course
of the professional employment or
with
a
view
to
professional
employment;
d. The client has not given his consent
to the attorneys testimony thereon.
For the privilege to apply, the attorney must
have been consulted in his professional
capacity, even if no fee has been paid
therefor. Preliminary communications made
for the purpose of creating the attorneyclient relationship are within the privilege
(Regalado citing 8 Wigmore 587).
The communications covered by the
privilege include: (a) verbal statements (b)
and documents or papers entrusted to the
attorney, and (c) of facts learned by the
attorney through the act or agency of the
client.
The communication is NOT deemed lacking
in
confidentiality
because
the
communication is transmitted by electronic
means.
The Privilege does NOT apply to:
1. Communications
which
are
intended to be made public;
2. Intended to be communicated to
others;
3. Intended for unlawful purpose;
4. Received from third persons not
acting in behalf or as agent of the
client;

5. Made in the presence of the third


parties who are strangers to the
attorney-client relationship.
Communications regarding a crime already
committed, made by the offender to an
attorney, consulted as such are privileged
communications while communications on
clients contemplated or future criminal act,
or in aid or furtherance thereof, are not
covered by the privilege.
Furthermore, where that attorney was
himself a conspirator in the commission of
the crime, the privilege does not attach. It
is well settled that in order that a
communication between a lawyer and his
client may be privileged, it must be for a
lawful purpose. Every communication
between an attorney and a client for a
criminal purpose is a conspiracy or an
attempt at a conspiracy which is not only
lawful to divulge but must promptly be
disclosed (People v. Sandiganbayan, et al.,
G.R. Nos. 115439-41, 16 July 1997).
Test in applying the attorney-client
privilege
Whether the communication made is with
the view of obtaining from the lawyer his
professional assistance or advice regardless
of the existence or absence of a pending
litigation.
General Rule
Lawyers may not invoke the privilege and
refuse to divulge the name or identity of
their client.
Exceptions:
1. Where a strong possibility exists
that revealing clients name would
implicate the client in the very
activity for which he sought the
lawyers advice;
2. Where the disclosure would open
the client to civil liability; or
3. Where the prosecutors have no case
against the client unless by

revealing the clients name, the said


name would furnish the only link
that would form the chain of
testimony necessary to convict an
individual for a crime.
PHYSICIAN-PATIENT PRIVILEGED RULE
Requisites:
1. That the physician is authorized to
practice
medicine,
surgery
or
obstetrics;
2. The information was acquired or the
advice or treatment was given by
him in his professional capacity for
the purpose of treating and curing
the patient;
3. The
information,
advice
or
treatment,
if
revealed,
would
blacken the reputation of the
patient;
4. The privilege is invoked in civil case,
whether the patient is a party
thereto or not.
The physician may be considered to be
acting in his professional capacity when he
attends to the patient for curative,
preventive, or palliative treatment.
The privileged disclosure
necessary to able him to
efficaciously treat his patient.

are those
safely and

The Privilege does NOT apply to:


1. Communications which was not
given in confidence;
2. Communication is irrelevant to the
professional employment;
3. The communication was intended
for an unlawful purpose, as when it
is intended for the commission or
concealment of a crime;
4. The information was intended to be
made public; or
5. There was a waiver of the privilege
either by provisions of contract or
law. e.g. Sec. 4, Rule 28, Rules of
Court.

Rule 28, Sec. 4provides:


By requesting and obtaining a
report of the examination so ordered
or by taking the deposition of the
examiner, the party examined
waives any privilege he may have in
that action or any other involving
the same controversy, regarding the
testimony of every other person who
has examined or may thereafter
examine him in respect of the same
mental or physical examination.
The statutory physician-patient privilege,
though duly claimed, is not violated by
permitting a physician to give expert
testimony in response to a strictly
hypothetical question in a lawsuit involving
the physical mental condition of a patient
whom he has attended professionally,
where his opinion is based strictly upon the
hypothetical facts stated, excluding and
disregarding any personal professional
knowledge he may have concerning such
patient. But in order to avoid the bar of the
physician-patient privilege where it is
asserted in such a case, the physician must
base his opinion solely upon the facts
hypothesized in the question, excluding
from consideration his personal knowledge
of the patient acquired through the
physician and patient relationship. If he
cannot or does not exclude
from
consideration his personal professional
knowledge of the patients condition he
should not be permitted to testify as to his
experts opinion (Lim v. CA, G.R. No. 91114,
25 Sept. 1992 citing 81 Am. Jur. 2d, 277278).
The rule cannot be invoked as a shield for
the
commission
of
a
crime,
and
communications, however confidential they
may be, are not within the privilege if made
in furtherance of an unlawful or criminal
purpose.
PRIEST/MINISTER-PENITENT RULE

Requisites:
a. The minister or priest must be duly
ordained or consecrated by his sect
or denomination;
b. The communication was made
pursuant to a religious duty
enjoined in the course of discipline
of the sect or denomination to which
the priest or minister belongs; and
c. The
communication
covers
confession
which
must
be
penitential in character and any
advice made or given by the priest or
minister in his professional capacity.
The Privilege does
not apply when the
communication is not penitential in
character as when what is divulged is the
plan to commit a crime.
Q: For over a year, Nenita had been
estranged from her husband Walter
because of the latters suspicion that she
was having an affair with Vladimir, a
barangay kagawad who lived in nearby
Mandaluyong. Nenita lived in the meantime
with her sister in Makati. One day, the
house of Nenitas sister inexplicably burned
almost to the ground. Nenita and her sister
were caught inside the house but Nenita
survived as she fled in time, while her sister
tried to save belongings and was caught
inside when the house collapsed.
As she was running away from the burning
house, Nenita was surprised to see her
husband also running away from the scene.
Dr. Carlos, Walters psychiatrist who lived
near the burned house and whom Walter
medically consulted after the fire, also saw
Walter in the vicinity some minutes before
the fire. Coincidentally, Fr. Platino, the
parish priest who regularly hears Walters
confession and who heard it after the fire,
also encountered him not too far away from
the burned house.

Walter was charged with arson and at his


trial, the prosecution moved to introduce
the testimonies of Nenita, the doctor and
the priest-confessor, who all saw Walter at
the vicinity of the fire at about the time of
the fire.
a. May the testimony of Nenita be
allowed over the objection of Walter?
b. May
the
testimony
of
Dr.
Carlos, Walters psychiatrist, be
allowed over Walters objection?
c. may the testimony of fr. Platino the
priestconfessor, be allowed
over Walters objection? (Bar 2013)
A: (A) No. Nenita may not be allowed to
testify against Walter. Under the Marital
Disqualification
Rule,
during
their
marriage, neither the husbandnor the wife
may testify for or against the other without
the consent of the affected spouse, except
in a civil case by one against the other, or in
a criminal case for a crime committed by
one against the other or the latters direct
descendant or ascendant(Section 22, Rule
130, Rules on Evidence). The foregoing
exceptions cannot apply since it only
extends to a criminal case of one spouse
against the other or the latters direct
ascendants or descendants. Clearly, Nenita
is not the offended party and her sister is
not her direct ascendant or descendant for
her to fall within the exception.
(B) Yes. The testimony of Walters
psychiatrist may be allowed. The privileged
communication contemplated under Sec.
24 (c) Rule 130 of the Rules on Evidence
involves only person authorized to practice
medicine, surgery or obstetrics. It does not
include a Psychiatrist. Moreover, the
privilege communication applies only in
civil cases and not in a criminal case for
arson. Besides, the subject of the testimony
of Dr. Carlos was not in connection with the
advice or treatment given by him to Walter,
or any information he acquired in attending
to Walter in a professional capacity. The

testimony of Dr. Carlos is limited only to


what he perceived at the vicinity of the fire
and at the time of the fire.
(C) Yes. The Priest can testify over the
objection of Walter. The disqualification
requires that the same were made pursuant
to a religious duty enjoined in the course of
discipline of the sect or denomination to
which they belong and must be confidential
and penitential in character, e.g., under the
seal of confession (Sec. 24 (d) Rule 130,
Rules on Evidence).
Here, the testimony of Fr. Platino was not
previously subject of a confession of Walter
or an advice given by him to Walter in
hisprofessional character. The Testimony
was merely limited to what Fr. Platino
perceived at the vicinity of the fire and at
about the time of the fire. Hence, Fr.
Platino may be allowed to testify.
PRIVILEGED COMMUNICATIONS TO
PUBLIC OFFICERS
Requisites:
a. The communication was made to
the
public
officer
in
official
confidence; and
b. Public interest would suffer by the
disclosure of such communication.
Exceptions
1. When useful to vindicate the
innocence of an accused or
2. To lessen the risk of false testimony,
or
3. When essential to the proper
disposition of the case, or
4. When the benefit to be gained is
greater than any injury which could
inure.
Without prejudice to his liability under the
civil and criminal laws, the publisher,
editor, columnist or duly accredited
reporter of any newspaper, magazine or

periodical of general circulation cannot be


compelled to reveal the source of any newsreport or information appearing in said
publication which was related in confidence
to such publisher, editor or reporter unless
the court or a House or committee of
Congress finds that such revelation is
demanded by the security of the State (Sec.
1, R.A. No. 53, as amended by R.A. 1477).
The
privilege
only
applies
to
communications to such officers who have
a responsibility or duty to investigate or to
prevent public wrongs, and not to officials
in general (Francisco, p. 139, 1992 ed.).
PRIVILEGED COMMUNICATIONS UNDER
THE RULES ON ELECTRONIC EVIDENCE
The confidential character of a privileged
communication is NOT lost solely on the
ground that it is in the form of an
electronic document (Sec.3, Rule 3, Rules
on Electronic Evidence).
NOTE:
Privileged communications
toelectronic evidence.

apply

even

OTHER PRIVILEGED MATTERS


Section 7, Article III of the Constitution states
that the right of the people to information
on matters of public concern shall be
recognized. Access to official records, and to
documents, and papers pertaining to
official acts, transactions, or decisions, as
well as to government research data used
as basis for policy development, shall be
afforded the citizen, subject to such
limitations as may be provided by law.
However, like all constitutional guarantees,
the right to information, with its companion
right of access to official records, is not
absolute. While providing guaranty for that
right, the Constitution also provides that
the peoples right to know is limited to
matters of public concern and is further
subject to such limitations as may be
provided by law. Jurisprudence has

provided the following limitations to that


right:
a. national security matters and
intelligence information;
b. trade
secrets
and
banking
transactions;
TRADE SECRETS
A plan or process, tool, mechanism or
compound known only to its owner and
those of his employees to whom it is
necessary to confide it. The definitionalso
extends to a secret formula or process not
patented, but known only to certain
individuals using it in compounding some
article of trade having a commercial value.
American jurisprudence has utilized the
following factors to determine if an
information is a trade secret,towit:
a. the extent to which the information
is known outside of the employers
business;
b. the extent to which the information
is known by employees and others
involved in the business;
c. the extent of measures taken by the
employer to guard the secrecy of the
information;
d. the value of the information to the
employer and to competitors;
e. the amount of effort or money
expended by the company in
developing the information; and
f. the extent to which the information
could be easily or readily obtained
through an independent source. (Air
Philippines Corp. v. Pennswell, Inc.
G.R. No. 172835, Dec. 13, 2007)
NOTE:
Trade secrets cannot be disclosed although
this is not absolute as the court may
compel disclosure where it is indispensable
for doing justice (Francisco, p. 335, 1992
ed.)
BANK DEPOSITS

Absolutely confidential innature except


upon written permission of the depositor, or
in cases of impeachment, or upon lawful
order
of
a competent
court
(R.A.
1405;Francisco, p. 335, 1992 ed.).
An examination of the secrecy of bank
deposits law (R. A. No. 1405) would reveal
the following exceptions:
1. Where the depositor consents in
writing;
2. Impeachment case;
3. By court order in bribery or
dereliction of duty cases against
public officials;
4. Deposit is subject of litigation;
5. Sec. 8, R. A. No. 3019, in cases of
unexplained
wealth
(PNB
vs.
Gancayco G.R. No. 135882, June 27,
2001)
NOTE:
Before an in camera inspection may be
allowed, there must be a pending case
before a court of competent jurisdiction.
Further, the account must be clearly
identified, the inspection limited to the
subject matter of the pending case before
the court of competent jurisdiction.
Thebank personnel and the account holder
must be notified to be present during the
inspection, and such inspection may cover
only the account identified in the pending
case. (Marquez, Branch Manager of Union
Bank of the Phils. V. Desierto, G.R. No.
135882, June 27, 2001)
CONFIDENTIAL INFORMATION
Information notyet made a matter of public
record relating to pending cases, as well as
information not yet made public concerning
the work of any justice or judge relating to
pending cases, including notes, drafts,
research papers, internal discussions,
internal memoranda, records of internal
deliberations and similar papers.
NOTE:

The notes, drafts, research papers,


internaldiscussions, internal memoranda,
records of internal deliberations and similar
papers that a justice or judge uses in
preparing a decision, resolution or order
shall remain confidential even after the
decision, resolution or order is made public.
Any release of a copy to the public, or to the
parties, of an unpromulgated ponencia
infringes on the confidential internal
deliberations of the Court. It is settled that
the internal deliberations of the Court are
confidential.
A
frank
exchange
of
exploratory ideas and assessments, free
from the glare of publicity and pressure by
interested parties, is essential to protect the
independence of decision-making of those
tasked to exercise judicial power. (In re:
Undated Letter of Mr. Louis C. Biraogo v.
Nograles and Limkaichong, G.R. No. 179120,
A.M. No. 09-2-19-SC, Feb. 24, 2009)
The constitutional right to information
includes official information on on-going
negotiations before a final contract. The
information, however, must constitute
definite propositions by the government and
should not cover recognized exceptions like
privileged
information,
military
and
diplomatic secrets and similar matters
affecting national security and public order.
The guardian ad litem shall not testify in
any proceeding concerning any information,
statement, or opinion received from the
child in the course of serving as a guardian
ad litem, unless the court finds it necessary
to promote the best interests of the
child(Sec. 5 (e), Rule on Examination of a
Child Witness).
Editors, publisher, or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any news
report or any information given to him in
confidence, unless a court or a House or a

committee of Congress finds that such


revelation is demanded for State security
(R.A. 1477).
Voters may not be compelled to disclose for
whom they voted.
Conciliators and similar officials shall not
testify in any court or body regarding any
matter taken up at the conciliation
proceedings conducted by them (Art. 233,
Labor Code).
Informers, for the protection of their
identity, cannot be compelled to testify by
the prosecutor when their testimony would
merely
be
cumulative
and
corroborative(Herrera, Vol. V,p. 353, 1999
ed.).
TESTIMONIAL PRIVILEGED PARENTAL
AND FILIAL PRIVILEGED (Sec. 25, Rule
130)
NOTE:
The rule applies to both criminal and
civilcases since it makes no distinction.
PARENTAL PRIVILEGE
A parent cannot becompelled to testify
against his child or direct descendants.
FILIAL PRIVILEGE RULE
Achild may not becompelled to testify
against his parents or direct ascendants.
General rule
No person may be compelled totestify
against
his
parents,
other
direct
ascendants, children or other direct
descendants.
Exceptions
1. When
the
testimony
of
the
descendant is indispensable in a
crime
committed
against
said
descendant;
2. When
the
testimony
of
the
descendant is indispensable in a

crime committed by one parent


against
the
other
(Art. 215,
FamilyCode);
3. Waiver such privilege and the
witness voluntarily testifies against
his
parent,
ascendant,
or
descendant.
ADMISSIONS AND CONFESSIONS
ADISSION OF A PARTY
(Sec. 26, Rule 130)
ADMISSIONS OF A PARTY
The act, declaration or omission of a party
as to a relevant fact may be given in
evidence against him.
An admission is any statement of fact
made by a party against his interest or
unfavorable to the conclusion for which he
contends or is inconsistent with the facts
alleged by him (31C.J.S. 1022).
Requisites for Admissibility
a. An admission must involve matters
of fact, not law;
b. It must be categorical and definite;
c. It
must
be
knowingly
and
voluntarily made;
d. It must be adverse to the admitters
interest, otherwise, it would be selfserving.
SELF-SERVING EVIDENCE
Self-serving evidence is evidence made by a
party out of court at one time; it does not
include a partys testimony as a witness in
court. It is excluded on the same ground as
any hearsay evidence, that is lack of
opportunity for cross-examination by the
adverse party, and on theconsideration that
its admission would open the door to fraud
and to fabrication of testimony. On the
other hand, a partys testimony in court is
sworn and affords the other party the
opportunity for cross examination (5 Moran

222,citing National Development Co. v.


WorkmensCompensation Commission, 19
SCRA 861, 865-866, citing 2 Jones on
Evidence, Sec. 335 5th Ed.)
General Rule
Self-serving
declarations,
which
areunsworn statements made by the
declarant out of court and which are
favorable to his interest are NOT
admissible.
Exceptions
1. When they form part of the res
gestae,
including
spontaneous
statements, and verbal acts (Ency.
Of Evidence, 315, 385).
2. When they are in the form of a
complaint or exclamations of pain
and suffering (31 C.J.S. 956).
3. When they are part of a confession
offered by the prosecution (2
Whartons Criminal Evidence, Sec.
690).
4. Where the credibility of a party has
been assailed on the ground that
his testimony is a recent fabrication,
in which case his prior declaration,
even of a self-serving character, may
be admitted, provided they were
made at a time when a motive to
misrepresent did not exist (22 C.J.S.
230). This is sometimes referred to
as testimonial rehabilitation.
5. Where they are offered by the
opponent.
6. When they are offered without
objection, the evidence cannot
afterwards be objected to as
incompetent (Phyll v. New York, etc.
R.Co. 92 App. Div. 513; 87 N.Y.S.
345) (Francisco, Evidence 1990 Ed.,
Part I).
NOTE:
Diaries are, as a rule, inadmissible
becausethey are self-serving in nature, they

are the nature of books of account; but it


has been held that an entry in a diary
being in the nature of a declaration, if it
was made against the interest when made,
it is admissible (Herrera citing 5Moran).
FORMS OF ADMISSION
1. Express Admission
2. Implied Admission
3. Judicial Admission
4. Extrajudicial Admission
5. Adoptive Admission
Express Admission
An admission made
statement or act.

through

apositive

Implied Admission
An admission which can be inferred from
the statements, declarations and acts of a
person.
Admissions are not limited to any particular
form. They may be not only in the form of
declarations, oral or written, but they may
be implied from the conduct or acts of
parties.
Flight from justice is an admission by
conduct and circumstantial evidence of
consciousness of guilt (U.S. v. Sarikala, 37
Phil. 486). Also, evidence of attempts to
suppress evidence, as by destruction of
documentary evidence or eloignment of
witnesses, are admissible under the same
rationale.
NOTE:
The act of repairing a machine, bridge
orother facility after an injury has been
sustained therein is NOT an implied
admission of negligence by conduct. It is
merely a measure of extreme caution by
adopting additional safeguards since,
despite due care and diligence, an
unexpected accident can still occur
(Regalado).

Judicial Admission
An admission, verbal orwritten, made by a
party in the course of a judicial proceeding
in the same case. The admission may be
contradicted only by showing that it was
made through palpable mistake or that no
such admission was made (Sec. 4,
Rule129).
Extrajudicial Admission
Admission made out ofcourt or even in the
proceeding other than the one under
consideration, as found in Sec. 26 and 32.
Adoptive Admission
It is a partys reaction to astatement or
action by another person when it is
reasonable to treat the partys reaction as
an admission of something stated or
implied by the other person. A third
persons statement becomes the admission
of the party embracing or espousing it.
Adoptive admission may occur when a
party:
a. Expressly agrees to or concurs in an
oral statement made by another;
b. Hears a statement and later on
essentially repeats it;
c. Utters an acceptance or builds upon
the assertion of another;
d. Replies by way of rebuttal to some
specific points raised by another but
ignores further points which he or
she has heard the other make; or
e. Reads and signs a written statement
made by another. (Republic v.
Kendrick Development Corp.,G.R. No.
149576, Aug. 8, 2006)
It states that a party may, by his words or
Conduct, voluntarily adopt or ratify
anothers statement. Where it appears
that a party clearly and unambiguously
assented to or adopted the statements of
another, evidence of those statements is
admissible against him. (Riano,Evidence:
A Restatement for the Bar, p. 117, 2009
ed.)

Q:True or False. Under the doctrine of


adoptive admission, a third partys
statement becomes the admission of the
party embracing or espousing it. Explain.
(Bar 2010)
A: True. The effect or consequence of the
admission will bind also the party who
adopted or espoused the same, as applied
in Estrada vs. Desierto, an adoptive
admission is a partys reaction to a
statement or action by another person
when it is reasonable to treat the partys
reaction as an admission of something
stated or implied by the other person.
Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
attesting that he was the last person seen
with the woman when she was still alive,
Carlito was arrested within five hours after
the discovery of the cadaver and brought to
the police station. The crime laboratory
determined that the woman had been
raped. While in police custody, Carlito broke
down in the presence of an assisting
counsel orally confessed to the investigator
that he had raped and killed the woman,
detailing the acts he had performed up to
his dumping of the body near the creek. He
was genuinely remorseful. During the trial,
the state presented the investigator to
testify on the oral confession of Carlito. Is
the oral confession admissible in evidence
of guilt? (Bar 2008)
A: The declaration of the accused expressly
acknowledging his guilt, in the presence of
assisting counsel, may be given in evidence
against him and any person, otherwise
competent to testify as a witness, who
heard the confession is competent to testify
as to the substance o what he heard and
understood it. What is crucial here is that
the accused was informed of his right to an
attorney and that what he says may be
used in evidence against him. As the

custodial confession was given in the


presence of an assisting counsel, Carlito is
deemed fully aware of the consequences of
his statements (People v. Silvano, GR No.
144886, 29 April 2002).
ADMISSION
Statement of fact
does not involve
acknowledgment or
guilt or liability.
Maybe
made
by
third persons and in
certain cases, is
admissible against a
party.
It may be express or
tacit.
A general admission
in a sense includes
confessions.
The
former being the
general
term
because
accordingly,
a
confession is also
an admission by the
accused of the fact
essential
to
the
charge.
ADMISSIONS

It is admissible even
if
the
person
making
the
admission is alive or
is in court.
Made at any time,
even during the
trial.
It is admissible as
long
as
it
is
consistent with his
present claim or

CONFESSION
It
involves
acknowledgment of
guilt or liability.
Can be made only
by the party himself
and in some cases,
is
admissible
against
his
coaccused.
It must be express.

defense and need


not be against ones
pecuniary or moral
interest.
It is admissible only
against the party
making
the
admission.
It
is
not
an
exception to any
rule.

It is admissible even
against
third
persons.
It is an exception to
the hearsay rule.

RES INTER ALIOS ACTA RULE


If fully expressed reads: res inter alios acta
alterinocere non debet which literally means
that things done between strangers
ought not toinjure those who are not
parties to them.

A confession is a
specific
type
of
admission
which
refers
only
to
acknowledgment of
guilt.

This rule applies to both extrajudicial


confessions and admissions (People v.
Valerio, Jr., L-4116, Feb.25, 1982) and not to
statements made in opencourt.

DECLARATION
AGAINST
INTEREST
To be admitted, it
must be made by a
person who is either
deceased or unable
to testify.
Made before the
controversy arises.

NOTE:
This
rule
applies
only
to
extrajudicial declarations and not to
statements made in open court.

It is made against
ones pecuniary or
moral interest.

Branches of Res Inter Alios Acta Rule


1. FIRST BRANCH. The rule that the
rights
of
aparty
cannot
be
prejudiced by an act, declaration, or
omission of another (ADMISSION
BY A THIRD PARTY) (Sec. 28,Rule
130, Rules of Court).

Exceptions
a. Admission by a co-partner or
agent (Sec. 29)
b. Admission by a conspirator
(Sec. 30)
c. Admission by privies (Sec.
31)
NOTE:

Sections 29, 30 and 31 are


collectivelyclassified as VICARIOUS
ADMISSIONS.
2. SECOND BRANCH. The rule that
evidence ofprevious conduct or
similar acts at one time is not
admissible to prove that one did or
did not do the same act at another
time
(SIMILAR
ACTS
AS
EVIDENCE) (Sec. 34, Rule130, Rules
of Court).
ADMISSION BY CO-PARTNER OR
AGENT, JOINT OWNER, JOINT DEBTOR
OR PERSON WHO HAS A JOINT
INTEREST WITH THE PARTY
(Sec. 29, Rule 130)
Requisites:
a. The partnership, agency or joint
interest is established by evidence
other than the act or declaration;
b. The act or declaration is within the
scope of the partnership, agency or
joint interest; and
c. Such act or declaration must have
been made during the existence of
the partnership, agency or joint
interest.
Relevant substantive provisions of the
Civil Code on:
a. Partners: Art. 1803.
b. Agents: Art. 1910.
c. Co-owners: Art. 487.
d. Solidary debtors: Art. 1222.
DOCTRINE
OF
CONDITIONAL
ADMISSIBILITY
Inasmuch as it must often happen that the
admission of only one partner can be
proved at a time, declarations may be
received where the existence of a
partnership is alleged without proof of the
partnership at that time. Here, as in other
cases, the order of the testimony is within
the discretion of the judge.

ADMISSION BY CONSPIRATOR
(Sec. 30, Rule 130)
CONSPIRACY
Exists when two or more personscome to an
agreement concerning the commission of a
felony and decide to commit it (Art. 8,
Revised Penal Code).
NOTE:
Once conspiracy is proven, the act of one
isthe act of all. The statement therefore of
one, may be admitted against the other coconspirators as an exception to the rule of
resinter alios acta.
Requisites
of
Admission
by
Coconspirator
a. The declaration or act be made or
done during the existence of the
conspiracy;
b. The declaration or act must relate to
the conspiracy; and
c. The conspiracy must be shown by
evidence other than the declaration
or act.
NOTE:
This
rule
applies
only
to
extrajudicialadmissions
and
not
to
testimonies at trial where the party
adversely affected has the opportunity to
cross-examine the declarant (People v.
Palijon,343 SCRA 486).
PRINCIPLE OF IMPLIED CONSPIRACY
Conspiracy
may
be
justified
by
circumstantial evidence, that is, their
community of purpose and their unity of
design
in
the
contemporaneous
or
simultaneous performance of the act of
assaulting the deceased. Although the
intent may be classified as instantaneous,
it sprung from the turn of events, thereby
uniting the criminal design of the slayer
immediately before the commission of the

offense (Subayco v. Sandiganbayan, G.R.


No. 117267, Aug. 22, 1996).
DOCTRINE
OFADOPTIVE
ADMISSIONIN CONSPIRACY
Where one joins a conspiracy after its
formation and actively participates in it, he
ADOPTS the previous acts and declarations
of his fellow conspirators, so that such acts
and declarations, although done or made
before he joined the conspiracy, are
ADMISSIBLE against him.
To free himself from such criminal liability,
the law requires overt act on the part of the
conspirator, to seek to prevent commission
of the second or related felony or to
abandon or dissociate himself from the
conspiracy to commit the initial felony
(People v. Punzalan, G.R. No. 78853, 8 Nov.
1991).
INTERLOCKING CONFESSIONS
Where several extrajudicial confessions had
been made by several persons charged with
the same offense and without the
possibility of collusion among them, the
fact that the statements are in all material
respects identical is confirmatory of the
confessions of the co-defendants and are
admissible against other persons implicated
therein. This is an exception to the hearsay
and res inter alios acta rule.
ADMISSION BY PRIVIES
(Sec. 31, Rule 130)
Where one derives title to property from
another, the act, declaration, or omission of
the latter, while holding the title in relation
to the property, is evidence against the
former.
PRIVIES
Denotes the idea of succession not onlyby
right of heirship and testamentary legacy,
but also that of succession by singular title,
derived from acts inter vivos, as by
assignment, subrogation or purchase in

fact any act whereby the successor is


substituted in the place of the predecessor
in interest (Alpuerto v. Perez, 38 Phil.785).
Requisites:
a. there must be a relation of privity
between
the
party
and
the
declarant;
b. The admission was made by the
declarant,
as
predecessor-ininterest, while holding the title of
the property;and
c. The admission is in relation to said
property (People v. Du, O.G. 2229).
ADMISSION BY SILENCE
(Sec. 32, Rule 130)
Basis
The maximQui tacet consentire videtur(he
who is silent appears to consent) is
received on the theory that the failure to
deny what is asserted in the presence of a
party is an implied admission of the truth
of the statement.
Requisites:
a. He must have heard or observed the
act or declaration of the other
person;
b. He must have had the opportunity
to deny it;
c. He must have understood the
statement;
d. He must have an interest to object,
such that he would naturally have
done so if the statement was not
true;
e. The facts were within his knowledge;
and
f. The fact admitted or the inference to
be drawn from his silence
DOCTRINE OF ADOPTIVE ADMISSION
An adoptive admission is a partys reaction
to a statement or action by another person
when it is reasonable to treat the partys

reaction as an admission of something


stated or implied by the other person
(Estrada v. Desierto, 356 SCRA 108).
NOTE:
By
adoptive
admission,
a
third
personsstatement becomes the admission
of the party embracing or espousing it.
Instances of Adoptive Admission
1. When a party expressly agrees to or
concurs in an oral statement made
by another;
2. When a party hears a statement and
later on essentially repeats it;
3. A party utters an acceptance or
builds upon the assertion of
another;
4. A party replies by way of rebuttal to
some specific points raised by
another but ignores further points
which he or she has heard the other
make; or
5. A party reads and signs a written
statement
made
by
another
(Republic
v. KenrickDevelopment
Corporation, G.R. No. 149576,
August 8, 2006).
CONFESSIONS
(Sec. 33, Rule 130)
CONFESSION
The
declaration
of
an
accused
acknowledging his guilt in express words of
the truth of the offense charged, or of some
essential parts thereof.
Requisites:
a. The confession must involve an
express
and
categorical
acknowledgment of guilt;
b. The facts admitted must be
constitutive of a criminal offense;
c. The confession must have been
given
voluntarily
and
made
intelligently, where the accused

realizes the legal significance of his


act;
d. Any extrajudicial confession made
by a person arrested, detained, or
under custodial investigation shall
be in writing and signed by such
person in the presence of his
counsel or in the latters absence,
upon a valid waiver, and in the
presence of any of the parents, older
brothers and sisters, his spouse, the
municipal mayor, the municipal
judge, district school supervisor, or
priest or minister of the gospel as
chosen by him (Sec. 12, Art. III,1987
Constitution; Sec. 2[d], R.A. No.
7438).
FORMS OF CONFESSION
1. Judicial Confession one made
before acourt in which a case is
pending and in the course of legal
proceedings therein and, by itself,
can sustain a conviction even in
capital offenses.
2. Extrajudicial Confession one
made in anyother place or occasion
and cannot sustain a conviction
unless corroborated by evidence of
the corpus delicti (Sec. 3, Rule 133).
General rule
Extrajudicial confession is binding only
upon the confessant and is not admissible
against his co-accused based on the Res
InterAlios Acta Rule and Hearsay Rule.
Exceptions
1. If
the
co-accused
impliedly
acquiesced in or adopted said
confession by not questioning its
truthfulness;
2. If the accused persons voluntarily
and
independently
executed
identical
confessions
without
collusion, commonly known as
interlocking
confessions,
which

3.

4.

5.

6.
7.

confessions are corroborated by


other evidence;
Where the accused admitted the
facts stated by the confessant after
being apprised of such confession;
If they are charged as coconspirators of the crime which was
confessed by one of the accused and
said confession is used only as a
corroborating evidence
Where the confession is used as
circumstantial evidence to show the
probability of participation by the
co-conspirator;
Where the confessant testified for
his co-defendant;
Where
the
co-conspirators
extrajudicial
confession
is
corroborated by other evidence of
record
(Regalado,
Florenz.
D.
RemedialLaw Compendium Vol. II.,
2008).

SPONTANEOUS
OF
SPUR-OF-THEMOMENT STATEMENTS
In one case, before the police officer
interrogated the accused, the latter had
already admitted the crime when, after
coming out of the toilet, the scene of the
crime, revealed to the guard they
encountered that they committed an act of
revenge. That spontaneous statement
elicited without any interrogation, was part
of the res gestae and, at the same time, was
a voluntary confessionof guilt. Not only did
the accused, bymeans of said statement,
waive their right to remain silent and to
counsel,
but
by
their
extrajudicial
confession, plea of guilty, testimony in court
and by not appealing the judgment of
conviction (People v. Tampus, 96 SCRA
624;People v. Dy, 158 SCRA 111).
Presumption of Voluntariness
A confession isdeemed to be voluntary and
the confessant has the burden of proving
that it was given as a result of violence,
intimidation, threat or promise of reward or
leniency.

Weight of confession
The confession constitutesan evidence of a
higher order since it is supported by strong
presumption that no person of normal mind
would deliberately and knowingly confess to
a crime.
SIMILAR ACTS AS EVIDENCE
(Sec. 34, Rule 130)
General rule
Evidence that one did or did not doa certain
thing at one time is not admissible to prove
that he did or did not do the same or
similar thing at another time.
Exceptions
Evidence of similar acts is admissiblefor
any of the following purposes:
a. Specific intent;
b. Knowledge;
c. Identity;
d. Plan;
e. System;
f. Scheme;
g. Habit;
h. Custom;
i. Usage; and the like.
NOTE:
It
is well-settled
that
evidence
is
notadmissible which shows, or tends to
show, that the accused in a criminal case
has committed a crime wholly independent
from the offense for which he is on trial. A
man may be a notorious criminal, and may
have committed many crimes and still be
innocent of the crime charged on trial
(People v. Galo, 143 SCRA 193).
UNACCEPTED OFFER
(Sec. 35,Rule 132)
UNACCEPTED OFFER
An offer in writing to pay a particular sum
of money or to deliver a written instrument
or specific property is, if rejected without

valid cause, equivalent to the actual


production and tender of the money,
instrument or property.
NOTE:
Sec.
35
is
merely
an
evidentiarycomplement to the rule on
tender of payment
(Art. 1256, Civil Code) by providing that
said offerof payment must be made in
writing.
TESTIMONIAL KNOWLEDGE
TESTIMONY GENERALLY CONFINED TO
PERSONAL KNOWLEDGE; HEARSAY
EXCLUDED
(Sec. 36, Rule 130)
HEARSAY RULE
Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of some other person
not on the witness stand.
Elements:
a. There must be an out-of-court
statement; and
b. That the statement made out of
court, is repeated and offered by the
witness in court to prove the truth
of the matters asserted by the
statement. (Riano, Evidence: A
Restatement forthe Bar, p. 348, 2009
ed.)
Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of some other person
not on the witness stand. (Regalado, Vol. II,
p. 776, 2008 ed.)
It also includes all assertions which have
not been subjected to cross-examination by
the adverse party at the trial in which they

are being offered against him. (Herrera, Vol.


V, p. 581, 1999ed.)
REASONS WHY HEARSAY IS EXCLUDED
1. The party against whom it is
presented is deprived of his right
and opportunity to cross-examine
the persons to whom the statements
or writings are attributed.
2. The statement was not made under
oath or solemn affirmation.
3. The court must consider the
personal appearance and behavior
of the witness in evaluating his
credibility.
NOTE:
Hearsay evidence if not objected to
isadmissible. However, even if admitted, it
has no probative value (Mallari v. People,
446 SCRA 74).
Classification of out-of-court statements:
1. Hearsay Its probative force
depends, in whole or in part, on the
competency and credibility of some
persons other that the witness by
whom it is sought to produce it
(Estrada v. Desierto, G.R. Nos.
146710-15 & 146738, Apr. 3, 2001).
It isinadmissible as evidence.
2. Non-hearsay This occurs when the
purposefor
introducing
the
statement is not to prove the truth
of the facts asserted therein but
only the making of the statements
and are admissible in evidence
when the making of the statement is
relevant. These are the so called
independently relevant statements.
DOCTRINE OF INDEPENDENT RELEVANT
STATEMENTS
Where the statements or writings attributed
to a person who is not on the witness stand
are being offered not to prove the truth of
the facts stated therein but only to prove

that those statements were actually made


or those writings were executed, such
evidence known asindependentlyrelevant
statementis
not
covered
by
the
hearsayevidence rule. These statements are
termed as such, for they are independent of
whether the facts stated are true or not and
they are relevant since they are the facts in
issue or are circumstantial evidence of the
facts in issue.
NOTE:
The ban on hearsay evidence does notcover
independently relevant statements, which
tends to prove the tenor and not the truth
of the statement.
Two Classifications of Independently
Relevant Statements (Estrada v. Desierto,
356 SCRA 108):
1. Those statements which are the very
fact in issue; and
2. Those
statements
which
are
circumstantial evidence of the fact
in issue.
The second class includes:
a. Statements of a person showing his
state of mind i.e., his mental
condition,
knowledge,
belief,
intention,
ill-will
and
other
emotions;
b. Statements of a person which shows
his physical condition i.e, illness;
c. Statements of a person from which
an inference may be made as to the
state of mind of another i.e.,
knowledge, belief, motive, good or
bad faith of the latter;
d. Statements which may identify
e. Statements showing the lack of
credibility of a witness.
EXCEPTIONS TO THE HEARSAY RULE
1. Dying declaration (Sec. 37)
2. Declaration against interest (Sec. 38)
3. Act or declaration about pedigree
(Sec. 39)

4. Family reputation or tradition


regarding pedigree (Sec. 40)
5. Common reputation (Sec. 41)
6. Part of the res gestae (Sec. 42)
7. Entries in the course of business
(Sec. 43)
8. Entries in official records (Sec. 44)
9. Commercial lists and the like (Sec.
45)
10. Learned treatises (Sec. 46)
11. Testimony or deposition at a former
proceeding (Sec. 47)
Q:Blinded by extreme jealousy, Alberto shot
his wife, Betty, in the presence of his sister,
Carla. Carla brought Betty to the hospital.
Outside the operating room, Carla told
Domingo, a male nurse, that it was Alberto
who shot Betty. Betty died while undergoing
emergency surgery. At the trial of the
parricide charges filed against Alberto, the
prosecutor sought to present Domingo as
witness, to testify on what Carla told him.
The defense counsel objected on the ground
that Domingos testimony is inadmissible
for being hearsay. Rule on the objection
with reasons. (Bar 2009)
A: Objection overruled. The disclosure
received by Domingo and Carla may be
regarded
as
independently
relevant
statement which is not covered by the
hearsay rule; hence admissible. The
statement may be received not as evidence
of the truth of what was stated but only as
to the tenor thereof and the occurrence
when it was said, independently of whether
it was true or false. (People v. Cloud, 333
Phil. 30 [1996]; People v. Malibiran, et al.,
G.R. No. 178301, April 24, 2009)

Q:Counsel A objected to a question posed


by opposing Counsel B on the grounds that
it was hearsay and it assumed a fact not yet
established. The judge banged his gavel and
ruled by saying "Objection Sustained". Can

Counsel B ask for a reconsideration of the


ruling? Why? (Bar 2012)

Restatement for the Bar, p. 370,


2009 ed.)

A:Yes, counsel B may ask the Judge to


specify the grounds relied upon to sustain
the objection and thereafter move its
reconsideration thereof (Rule 132, Sec. 38)

The determination of
consciousness
of impending death may come from:
a. Utterances;
b. Circumstances; and
c. Actual character and seriousness of
his wounds.

Q: In relation to the hearsay rule, what do


the following rules of evidence have in
common? The rule on statements that are
part of the res gestae. The rule on dying
declarations. The rule on admissions
against interest. (Bar 2007)
A: The rules on the evidence specified in
the question asked, have in common the
following:
a. The evidence although hearsay, are
allowed by the Rules as exceptions
to the hearsay rule;
b. The facts involved are admissible in
evidence for reasons of necessity
and trustworthiness; and
c. The witness is testifying on facts
which are not of his own knowledge
or derived from his own perception.
DYING DECLARATION
(Sec. 37, Rule 130)
Requisites:
a. That death is imminent and the
declarant is conscious of the fact;
b. That the declaration refers to the
cause
and
surrounding
circumstances of such death;
c. That the declaration relates to facts
which the victim is competent to
testify to;
d. That the declaration is offered in a
case wherein the declarants death
is the subject of the inquiry.
e. The declarant is competent as a
witness had he survived. (Geraldo v.
People, G.R. No.173608 Nov. 20,
2008;
Riano,
Evidence:
A

NOTE:
The
admissibility
of
anante
mortemdeclaration is not affected by the
fact that the declarant died hours or several
days after making his declaration. It is
sufficient that he believed himself in
imminent danger of death at the time of
such declaration (People v. Erica, 72 SCRA
199).
Reasons for Admissibility:
1. Necessity The declarants death
renders impossible his taking the
witness stand.
2. Trustworthiness The mind is
induced by the most powerful
consideration to speak the truth.
Effect of Absence of Consciousness of
Impending Death
Though the dying declaration is not
admissible of an impending
death,
nevertheless the same may be admitted as
part of the res gestae (Peoplev. Roca, 162
SCRA 696, 1988).
Competence as Witness
Where it was shownthat the declarant
would not have been a competent witness if
he had lived, the proferred declarations will
not be received. Accordingly, declarations
are held not to be admissible where the
evidence shows that the declarant was
insane, or incapable of understanding his
statements
by
reason
of
partial
unconsciousness, or a child who was too
young to be a competent witness.

DOCTRINE OF COMPLETENESS
The statement as offered must not be
merely part of the whole as it was
expressed by the declarant; it must be
complete as far as it goes. To be complete
does not mean that it should contain
everything that constitutes the res gestae of
the subject of his statement but should
express in full all that he intended to say as
conveying his meaning in respect of such
fact.
In a case, the SC held as inadmissible the
dying statement of a victim as a dying
declaration where the victim, after she was
asked, Apo, apo, what happened?, merely
uttered before she died, Si Paqui. The
Court observed that the answer was not
Apo, apo, who did this to you?
In other words, the deceased was cut off by
death before she could convey a complete or
sensible communication. The SC cannot
speculate
what
the
rest
of
her
communication might have been had death
not interrupted her (People v. De Joya,203
SCRA 403, Nov. 8, 1991).
Dying Declaration Favorable to Accused,
Admissible
In cases where the dying declaration was
that the victim does not know who the
offender is, that the firearm was discharged
accidentally and not purposely by the
accused, and that the accused was not the
author of the crime, said declaration was
admitted in favor of the accused.
DECLARATION AGAINST INTEREST
(Sec. 38, Rule 130)
Requisites:
a. The declarant is dead or unable to
testify,
b. It relates to a fact against the
interest of the declarant,
c. At the time he made the declaration,
the declarant was aware that the

same was contrary to his aforesaid


interest, and
d. The declarant had no motive to
falsify, and believed such declaration
to be true.
The Interest Must be Actual or Real
It isessential that at the time of the
statement,
the
declarants
interest
affected thereby should be actual, real or
apparent, not merely contingent, future
or conditional; otherwise, the declaration
would not in reality be against interest.
Similarly, declarations of a former owner
of the property affected are not
admissible.
ADMISSION
AGAINST
INTEREST
It is made by the
party himself.

It may be made at
any time before or
during the trial.

A
partys
admission
need
not
have
been
made against his
interest
at
the
time, though often
assumed
in
judicial opinions,
that is, enough if
it is inconsistent
with his present
claim or defense.

DECLARATION
AGAINST
INTEREST
The declarant need
not be a party to
the
action.
The
declarant must first
be accounted for as
dead, absent from
the jurisdiction or
otherwise
unavailable as a
witness.
It must have been
made ante litem
motam,
that
is
before
the
controversy.
The fact asserted in
the
declaration
must have been, at
the time it was
made,
so
far
contrary
to
the
declarants
own
interest, pecuniary
or moral that a
reasonable man in
his position would
not have made the
declaration unless

It is used only
against the party
admitting.

he believes it to be.
(Sec. 38, Rule 130)
It may be admitted
against
third
persons.

PROOF OF PEDIGREE
The pedigree of a person may be proved by:
a. The act or declaration of a relative
(Sec. 39)
b. The reputation or tradition existing
in his family (Sec. 40)
c. Entries in family bibles, or other
family books or charts, engravings
on rings, family portraits and the
like (Sec. 40) and
d. With respect to marriage, also by
common
reputation
in
the
community (Sec. 41)
ACT OR DECLARATION ABOUT
PEDIGREE
(Sec. 39, Rule 130)
PEDIGREE
The history of family descent which
istransmitted from one generation to
another, by means of both oral and written
declarations and by traditions.
The word pedigree includes relationship,
family genealogy, birth, marriage, death,
the dates when and the places where these
facts occurred, and the names of the
relatives. It also embraces facts of family
history intimately connected with pedigree
Requisites:
a. The actor or declarant is dead or
unable to testify;
b. That pedigree is in issue;
c. The actor or declarant is related by
birth or marriage to the person
whose pedigree is the subject of
inquiry;

d. The
relationship
between
the
declarant or actor and the subject is
shown by evidence other than such
act or declaration; and
e. That the declaration was made ante
litemmotam
or
prior
to
the
controversy.
Rule Not Applicable in Adoption
The absence ofproof of an order of adoption
by the court as provided by the statute,
cannot be substituted by parol evidence
that a child has lived with a person not his
parent, and has been treated as a child to
establish such adoption (Lazatin v. Campos,
92SCRA 250).
FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
(Sec. 40, Rule 130)
FAMILY REPUTATION
Such declarations andstatements as have
come down from generation to generation
from deceased relatives in such a way that
even though it cannot be said or
determined which of the deceased relative
originally made them or was personally
cognizant of the facts stated therein, yet it
appears that such declarations and
statements were made as family history.
TRADITION
Knowledge, belief or practicestransmitted
orally from father to son, or from ancestors
to posterity.
Requisites:
a. There is controversy with respect to
the pedigree of any members of the
family;
b. The reputation or tradition of the
pedigree of the person concerned
existed previous to the controversy;
and
c. The witness testifying to the
reputation or tradition regarding the

pedigree of the person concerned


must be a member of the family of
said person either by consanguinity
or affinity.
Entries in family bibles or other family
books or charts, engraving on rings, family
portraits and the like, may be received as
evidence of pedigree.
NOTE:
The reputation is the one known in
thefamily circles and not in the community,
except as to the reputation with respect to
marriage, which may proceed from persons
who are not members of the family (In Re
Florencio Mallari, 59 SCRA 45).
COMMON REPUTATION
(Sec. 41, Rule 130)
REPUTATION
The common report which othersmake
about him, the talk about him that shows
the opinion in which he is held in the
community; the sum or composite of the
impressions spontaneously made by him
from time to time, and in one way or
another,
upon
his
neighbors
and
acquaintances.
COMMON REPUTATION
The prevailing belief in thecommunity as to
the existence of a certain fact or
aggregation of facts.
RUMOR
A loose talk which the community hasnot
had an opportunity to evaluate and accept
or reject.
Matters which May be Established by
Common Reputation
a. Facts of public or general interest
more than 30 years old,
b. Marriage and related facts, and

c. Individuals moral character


Requisites Respecting Facts of Public or
General Interest:
a. The facts must be of public or
general interest and more than 30
years old;
b. The common reputation must have
been ancient,
c. The reputation must have been one
formed among a class of persons
who were in a position to have some
sources of information and to
contribute
intelligently
to
the
formation of the opinion, and
d. The common reputation must have
been existing previous to the
controversy.
Proof of Common Reputation
Common reputation may be proved by:
1. The
testimonial
evidence
of
competent witnesses;
2. Monuments, inscriptions in public
places, maps and surveys; or
3. Documents
containing
statements of reputation.
Requisites Respecting Marriage:
a. The common reputation must have
been formed previous to the
controversy, and
b. The common reputation must have
been formed in the community or
among the class of persons who are
in a position to have sources of
information and to contribute
intelligently to the formation of the
opinion.
NOTE:
Unlike that of matters of pedigree,
generalreputation
of
marriage
may
proceed from persons who are not
members of the family.
Requisites Respecting Moral Character

a. That it is the reputation in the


place where the person in question
is best known;
b. That is was formed ante litem
motam, or previous to the
controversy.
NOTE:
While
common
reputation
in
thecommunity may establish a matter of
public or general interest, marriage or
moral character, it cannot establish
pedigree.
This
is
established
by
reputation in the family and not in the
community (Secs. 40 and 41, Rule 130,
Rules of Court).
MORAL CHARACTER
The inherent qualities of theperson
impressed by nature or by habit rather
than by any opinion that may be formed or
expressed of him by others as to what he
really is.
PART OF RES GESTAE
(Sec. 42, Rule 130)
a. Statements made by a person while
a startling occurrence is taking
place OR immediately prior OR
subsequent theretowith respect to
the circumstances thereof may be
given in evidence;
b. Statements
accompanying
an
equivocal act material to the issue;
and
c. Statements
accompanying
an
equivocal act giving it a legal
significance.
NOTE:
For a statement to be part of the resgestae,
it must not only be spontaneous but also
be made at a time when there was no
opportunity to concoct or develop a story.
(People v. Lungayan, 162 SCRA 100)

Although a declaration does not appear to


have been made by the declarant under
the expectation of a certain and impending
death, and for this reason, is not
admissible as a dying declaration, such
declaration can fall squarely in the rule on
res gestae. (PEOPLE V. PUTIAN, 74SCRA
133) This doctrine must be viewed
byconsidering the current rules on res
gestae which is stringent because the new
rule further requires that such statement
be made under the stress of excitement
caused by the occurrence. (Excellence in
Evidence Part II by Ateneo Law, Class of
2012-C Analysis, p.30)
Reason for the Rule on Res Gestae:
1. The reason for the rule is human
experience. It has been shown that
under
certain
external
circumstances of physical or mental
shock,
the
state
of
nervous
excitement which occurs in a
spectator
may
produce
a
spontaneous and sincere response
to the actual sensations and
perceptions
produced
by
the
external shock.
2. As the statements or utterances are
made under the immediate and
uncontrolled domination of the
senses, rather than reason and
reflection, such statements or
utterances may be taken as
expressing the real belief of the
speaker as to the facts he just
observed. The spontaneity of the
declaration is such that the
declaration itself may be regarded as
the event speaking through the
declarant rather than the declarant
speaking for himself.
General classes of Declarations to which
Res Gestae applies:
1. Spontaneous Statement

Statement or exclamation made


immediately after some exciting
occasion by a participant or
spectator
and
asserting
the
circumstances of that occasion as it
is observed by him.
The principal fact is a startling
occurrence. The statement may
precede, accompany or succeed the
startling circumstance.
Reason for admissibility:
Trustworthiness
and
necessity
because statements made are
instinctively
and
spontaneous
utterances are more convincing than
the testimony of the same person on
the stand.
Requisites:
a. There must be a startling
occurrence;
b. The statement must relate to
the circumstances of the
startling occurrence; and
c. The statement must be
spontaneous.
2. Verbal Acts
Utterances which accompany some
act or conduct to which it is desired
to give a legal effect. When such act
has intrinsically no definite legal
significance, or an ambiguous one,
its legal purport or tenor may be
ascertained by considering the
words accompanying it and these
utterances; thus, enter merely as
part of the act.
The principal fact is an equivocal
act.
Statements
must
be
cotemporaneous or accompany the
equivocal act.
Reason for admissibility:

The motive, character and object of


an act are frequently indicated by
what was said by the person
engaged in the act.
Requisites:
a. Act
or
occurrence
characterized
must
be
equivocal;
b. Verbal
acts
must
characterize or explain the
equivocal act;
c. Equivocal
act
must
be
relevant to the issue;
d. Verbal
acts
must
be
contemporaneous with the
equivocal act;
Factors to consider in determining
whetherstatements offered in Evidence
as part of ResGestae have been made
spontaneous:
a. The time that has elapsed between
the occurrence of the act or
transaction and the making of the
statement;
b. The place where the statement was
made;
c. The condition of the declarant when
he made the statement;
d. The
presence
or
absence
of
intervening occurrences between the
occurrence and the statement
relative thereto;
e. The nature and circumstances of
the statement itself. (Elmer P.
Brabantes Remedial Law Reviewer
2011, p. 222)
ENTRIES IN THE COURSE OF BUSINES
(Sec. 43, Rule 130)
In the Ordinary Course of Business
The entries have been made regularly in the
management of the business.
Reason

To afford sufficient probability that thefacts


are as stated in the memorandum and
because of necessity, the entries being the
best available evidence.
Requisites:
a. The person who made the entry
must be dead or unable to testify;
b. The entries were made at or near
the time of the transactions to
which they refer;
c. The entrant was in a position to
know the facts stated in the entries;
d. The entries were made in his
professional capacity or in the
performance of a duty, whether
legal,
contractual,
moral,
or
religious; and
e. The entries were made in the
ordinary or regular course of
business or duty.
Duty to Make Entry
It is not essential that theentrant shall have
been under an absolute duty to make entry.
It is sufficient if the entry was the natural
concomitant of the transaction to which it
relates and usually accompanies it. A duty
self-imposed by the entrant has been held
to satisfy the rule.
NOTE:
Entries in the payroll, being entries in
theordinary course of business enjoy the
presumption of regularity under Sec. 43 of
Rule 130 of the Rules of Court (Sapio v.
UndalocConstruction, G.R. No. 155634, May
22, 2008).
ENTRIES IN OFFICIAL RECORDS
(Sec. 44, Rule 130)
Requisites:
a. The entries were made by a public
officer in the performance of his
duties or by a person in the
performance of a duty specially
enjoined by law;

b. The entrant had personal knowledge


of the facts stated by him or such
facts were acquired by him from
reports made by persons under a
legal duty to submit the same; and
c. Such entries were duly entered in a
regular manner in the official
records.
NOTE:
Entries in official records, as in the case of
a police blotter, are only prima facie
evidence of the facts therein stated. They
are not conclusive. The entry in the police
blotter is not necessarily entitled to full
credit for it could be incomplete and
inaccurate, sometimes from either partial
suggestions or for want of suggestions or
inquiries, without the aid of which the
witness may be unable to recall the
connected
collateral
circumstances
necessary for the correction of the first
suggestion of his memory and for his
accurate recollection of all that pertain to
the subject. (People v. San Gabriel, G.R.
No. 107735 February 1, 1996)
A medical certificate prepared by a
government hospital doctor, even if he/she
was not presented as witness, is
admissible as prima facie of the facts
therein stated and is an exception to the
hearsay rule. (People v. Leones, 117 SCRA
382September 30, 1982)
A Sheriffs return is an official statement
of a public official in the performance of
his duty specially enjoined by law and
forming part of official records and is
prima facie evidence of the facts therein
stated. The sheriff making the return need
not testify in court as to the facts stated in
his entry. (Manalo v. Robles, 99 Phil.729,
August 16, 1956)
Entries in the Course of Business vs.
Entries in Official Records:

ENTRIES IN THE
COURSE OF THE
BUSINESS
It is sufficient that
entrant made the
entries pursuant to
a duty be it legal,
contractual, moral
or religious.
Entrant must be
dead or unable to
testify.

ENTRIES IN
OFFICIAL
RECORDS
The entrant, if an
individual,
must
have acted pursuant
to a specific legal
duty
specifically
enjoined by law.
No
such
requirement.

COMMERCIAL LISTS AND THE LIKE


(Sec. 45, Rule 130)
Evidence of statements of matters of
interest, to persons engaged in an
occupation contained in a list, register,
periodical, or other published compilation
is admissible as tending to prove the truth
of any relevant matter so stated if that
compilation is published for use by
persons engaged in that occupation and is
generally used and relied upon by them
therein.
Requisites:
a. The statements must be matters of
interest to persons engaged in an
occupation;
b. The statements must be contained
in a list, register, periodical or other
published compilation;
c. Compilation is published for use by
persons engaged in that occupation;
d. Said statements are generally relied
upon by them.
NOTE:
A report in a newspaper account is not
acommercial list. At most, it is an analysis
or opinion which carries no persuasive
weight.
LEARNED TREATIES
(Sec. 46, Rule 130)

Basis
The
Alabama
Rule
Standard
medicaltreatises and works are admissible
in so far as they are relevant to the issues
in a particular case.
Requisites:
a. That the court takes judicial notice
that the writer of the statement in
the treatise, periodical or pamphlet
is recognized in his profession or
calling as expert in the subject;
b. A witness, an expert in the subject,
testifies that the writer of the
statement in the treatise, periodical
or pamphlet is recognized in his
profession or calling as expert in the
subject.
TESTIMONY OR DEPOSITION AT A
FORMER PROCEEDINGS
(Sec. 47, Rule 130)
FORMER TESTIMONY
Testimony which has been adduced at an
earlier proceeding may be classified as an
exception to the hearsay prohibition, or it
may be considered as non-hearsay under
the theory that the requirements of the
hearsay concept have been met.
Requisites of Former Testimony:
a. The witness is dead or unable to
testify;
b. His testimony or deposition was given
in a former case or proceeding,
judicial or administrative, between the
same parties or those representing
the same interests;
c. The former case involved the same
subject as that in the present case,
although on different causes of
action;

d. The issue testified to by the witness in


the former trial is the same issue
involved in the present case; and
e. The adverse party had an opportunity
to cross-examine the witness in the
former case.
OPINION RULE
(Sec. 48, Rule 130)
OPINION
An inference or conclusion drawn by a
witness from facts, some of which are
known to him and others assumed, or
drawn from facts which, although lending
probability to the inference, do not evolve it
by a process of absolutely necessary
reasoning.
General rule
The opinion of a witness is NOT admissible.
(Sec. 48)
Exceptions
1. Opinion of expert witness (Sec. 49)
On a matter requiring special
knowledge, skill, experience or
training which he possesses.
2. Opinion of ordinary witness (Sec.
50)
a. Regarding the identity or the
handwriting of a person,
when he has knowledge of
the person or handwriting;
b. On the mental sanity of a
person, if the witness is
sufficiently acquainted with
the former; and
c. On
impressions
of
the
emotion, behavior, condition
or appearance of a person,
which he has observed.
Statement of fact as distinguished from
an expression of opinion

The former is susceptibleof exact knowledge


while the latter is not.
OPINION OF EXPERT WITNESS
(Sec. 49, Rule 130)
EXPERT
One who belongs to the profession or
calling to which the subject matter of the
inquiry relates and who possesses special
knowledge on questions on which he
proposes to express an opinion. His
qualification as such must be established
before he is allowed to testify.
Value of Expert Testimony
Courts may place whatever weight they
choose on such testimony depending largely
on the value of assistance and guidance
they furnish the court.
Requisites:
a. The subject under examination
must be one that requires the court
of the aid of knowledge or
experience, such as men not
especially skilled do not have, and
cannot be obtained from the
ordinary witness;
b. The witness has been qualified as
an expert; and
c. The testimony must be with regard
to a fact in issue.
OPINION OF ORDINARY WITNESS
(Sec. 50, Rule130)

That which is given by a witness who is of


ordinary capacity and who has by
opportunity
acquired
a
particular
knowledge which is outside the limits of
common observation, and which may be of
value in elucidating a matter under
consideration.

Matters on Which an Ordinary Witness


May Testify
1. The identity of a person about whom
he has adequate knowledge;
2. A handwriting with which he has
sufficient familiarity;
3. The mental sanity of a person with
whom he is sufficiently acquainted;
and
4. On impressions of the emotion,
behavior, condition or appearance of
a person.
NOTE:
However,
it
must
be
limited
to
thoseopinions or inferences which are
rationally based on the perception of the
witness
and
helpful
to
a
clear
understanding of his testimony or the
determination of the fact in issue.
CHARACTER EVIDENCE
(Sec. 51, Rule 130)
CHARACTER
The aggregate of the moral qualities which
belong to and distinguish an individual
person; the general result of ones
distinguishing attributes; the estimate
attached to an individual or thing in the
community.
Character
evidence
admissible; exceptions

not

generally

General rule
The character of a person is NOTadmissible
in evidence.
Exceptions
1. CRIMINAL CASES
a. Character of the accused
the prosecution maynot at
the outset prove the bad
moral character
of the
accused which is pertinent to
the moral trait involved in

the offense charged. If the


accused, however, in his
defense attempts to prove his
good moral character, only
then can the prosecution
introduce evidence of such
bad moral character at the
rebuttal stage.
b. Character of the offended
party the good orbad
moral character
of the
offended party may always
be proved by either party as
long as such evidence tends
to establish the probability
or improbability of the
offense charged.
Exception to the exception
a. In rebuttal, proof of the bad
character of the victim is not
admissible if the crime was
committed through treachery and
premeditation; and
b. In rape cases, the evidence of
complainants
c. Past sexual conduct, or reputation
or opinion thereof shall not be
admitted unless and only to the
extent that the court finds that such
evidence is material and relevant to
the case (Rape shield,Sec. 6, R.A.
8505).
2. CIVIL CASES
The moral character of either party
thereto cannot be proved unless it is
pertinent to the issue of character
involved in the case.
Character of a witness the bad
moral characterof a witness may
always be proved by either party
(Sec. 11, Rule 132), but not evidence
of his goodcharacter, unless it has
been impeached (Sec. 14,Rule 132).

Rules on the nature or substance of


admissible character evidence:
a. With respect to the accused, such
character
evidence
must
be
pertinent to the moral trait involved
in the offense charged.
b. With respect to the offended party,
it is sufficient that such character
evidence may establish in any
reasonable degree the probability or
improbability of the offense charged.
c. With respect to witnesses, such
character evidence must refer to his
general
reputation
for
truth,
honesty, or integrity, that is, as
affecting his credibility.
ADMISSIBILITY OF CHARACTER
EVIDENCE
(Sec. 51, Rule 130)
PARTIES
CRIMINAL CASES. Evidence of the
accuseds
goodmoral
character
is
admissible if pertinent to the moral trait
involved in the offense charged. The
prosecution cannot adduce evidence of the
accuseds bad moral character unlessthe
defense opens the door for rebuttal
byintroducing evidence of the accuseds
good moral character.

the victims promiscuous character may be


adduced by the accused to show consent.
The accused in a murder case raised the
defense that victim was a drug addict and
thief to try to show that he could have been
killed by any one of those from whom he
had stolen. The SC said that proof of the
bad moral character of the victim is
irrelevant to establish the probability or
improbability of his killing since the
accused did not allege that the victim was
the aggressor or that the killing was made
in self-defense (Peoplev. Lee, G.R. No.
139070, 29 May 2002).
WITNESSES
The adverse party may introduce evidence
that a witnesss general reputation for
honesty, integrity, or truth (HIT) is bad for
purposes of impeaching the witness (S11
R132). If impeached, the party presenting
the witness may rehabilitate his witness by
presenting evidence of his good moral
character (S14 R132).
How Character Proved
1. Reputation evidence;
2. Specific instances of conduct; or
3. The witness opinion.
RULE 132
PRESENTATION OF EVIDENCE

CIVIL CASES. Evidence of moral character


of aparty is admissible only when pertinent
to the issue of character involved in a case.

EXAMINATION OF WITNESSES
(Sec, 1, Rule 132)

OFFENDED PARTY IN CRIMINAL CASES


Evidence of the good or bad moral
character of the offended party is
admissible if it tends to establish the
probability or improbability of the offense
charged
(tepioc).
Thus,
evidence
of
theviolent character of the victim is relevant
to prove self-defense by the accused.
Evidence of his non-violent character can
be adduced by the prosecution to show the
accuseds guilt. In rape cases, evidence of

Requisites for Examination of Witnesses


1. It shall be done in open court,
except that such requirement may
be supplanted:
a. In civil cases, by depositions
pursuant to and under the
limitations of Rules 23 & 24
b. In
criminal
cases,
by
depositions or conditional
examinations
(Sec.
12-

15,Rule 119 and Sec. 1, Rule


123) orby therecords of the
preliminary
investigation
(Sec. 1[f], Rule 115)
2. The witness must take either an
oath or an affirmation.
3. The answers of the witness shall be
given orally, except:
a. When
the
witness
is
incapacitated to speak; or
b. When the question calls for a
different mode of answer.
NOTE:
Under
the
Revised
Rule
on
SummaryProcedure, affidavits and counteraffidavits may be admitted in lieu of oral
testimony (Sec. 36, B.P.129).
Purpose
This
method
allows
the
court
theopportunity to observe the demeanor of
the witness and also allows the adverse
party to cross-examine the witness.
The testimony of the witness should be
elicited
by
questions
of
counsel.
Nevertheless, the court itself may propound
questions either on the direct or crossexamination of the witness (People v.
Moreno, 88 Phil. 286; People v. Lagro, et al.,
99 Phil. 1061), or may suggest questions
that should be propounded by counsel (E.
Michael & Co., Inc. v. Enriquez, 33 Phil. 87).
NOTE:
Questions propounded to a witness
mustbe:
a. Relevant;
b. NOT be indefinite or uncertain;
c. NOT be argumentative;
d. NOT call for a conclusion of law;
e. NOT call for an opinion or hearsay
evidence;
f. NOT call for illegal answer;
g. NOT call for a self-incriminating
testimony;
h. NOT be leading;

i.
j.

NOT be misleading;
NOT tend to degrade the reputation
of the witness;
k. NOT be repetitious;
l. NOT call for a narration.
Effect of Failure to Take Oath or
Affirmation
It is generally held that where a witness
testifies without having been sworn, the
judgment will be set aside if the error is not
discovered until after judgment (Herrera).
However, the right to have a witness sworn
may be WAIVED if the other party fails to
object to the taking of the testimony of a
witness without the administration of an
oath.
Under Section 1, Rule 71, the refusal to be
sworn in or to answer as a witness
constitutes direct contempt of court.
RIGHTS AND OBLIGATION OF A
WITNESS
(Sec. 3, Rule 132)
RIGHTS OF A WITNESS
a. To be protected from irrelevant,
improper, or insulting questions,
and from harsh or insulting
demeanor;
b. Not to be detained longer than the
interest of justice require;
c. Not to be examined except only as to
matters pertinent to the issue
d. Not to give an answer which will
tend to subject him to a penalty for
an
offense
unless
otherwise
provided by law (Right AgainstSelfIncrimination);
e. Not to give an answer which will
tend to degrade his reputation,
UNLESS it be to the very fact at
issue or to a fact from which the fact
in issue would be presumed. But a
witness must answer to the fact of

his previous final conviction for an


offense.
OBLIGATION OF A WITNESS
A witness must answer questions although
his answer may tend to establish a claim
against him.
General rule
A witnesscannot refuse to answerquestions
material to the inquiry even if it may tend
to establish a claim against him.
Exceptions
A witnessmay validly refuse to answer:
1. Under the right against selfincrimination, if his answer will
tend tosubject him to punishment
for an offense UNLESS otherwise
provided by law (thisphrase refers
to Immunity Statutes); or
2. Under the right against selfdegradation, if his answer will have
a direct tendency to degrade his
character, UNLESS:
a. Such question is directed to
the very fact at issue or to a
fact from which the fact in
issue would be presumed;
or
b. It refers to his previous final
conviction.
(Regalado,
Florenz. D., Remedial Law
Compendium Vol. II, 2008)
With respect to the accused in criminal
cases, he may refuse to take the stand
altogether (Sec. 1[e], Rule 115), but in
other cases or proceedings, a party may be
compelled to take the stand although he
may object to incriminating questions. The
accused also has the right to selfdegradation, subject to the exceptions
above stated.
RIGHT AGAINST SELF-INCRIMINATION
BY THE ACCUSED

BY THE WITNESS

The accused may


refuse to take the
stand altogether.

It may be with
reference to the
offense involved in
the
same
case
wherein
he
is
charged or to an
offense wherein he
may be charged or
tried in another
case.

The witness may


only
refuse
to
answer
an
incriminating
question
The
offense
involved is one in
which he may be
tried in another
case.

NOTE:
The right should be seasonably invoked
and may be waived.
The
right
against
self-incrimination
isavailable
in
criminal,
civil
or
administrative cases (Bermudez v. Castillo,
A.M. No. 714-A, 64 Phil 483).
IMMUNITY STATUTES
The witness is granted immunity from
criminal prosecution for offenses admitted
in his testimony, e.g., under Section 8, R.A.
1379, the law providing for the forfeiture of
unlawfully acquired property; and under
P.D. 749, in prosecutions for bribery and
graft.
CLASSES OF IMMUNITY STATUTES
1. Use-and-derivative-use immunity
prohibitsthe use of the witness
compelled testimony and its fruits in
any manner in connection with the
criminal prosecution of the witness.
A witness is only assured that his
particular testimony and evidence
derived from it will not be used
against him in a subsequent
prosecution.

2. Transactional immunity- grants


immunity
tothe
witness
from
prosecution for an offense to which
his compelled testimony relates
(Galman v. Pamaran, G.R. Nos.
71208-09, August 30, 1985).
Other Statutes Granting Immunity from
Suit
a. R.A. No. 6770 The Ombudsman
has
the
authority
to
grant
immunity
from
criminal
prosecution to any person whose
testimony
is
necessary
to
determine the truth.
b. R.A. No. 6646 Grants an acceptor
or co-conspirator immunity from
prosecution, if he voluntarily
testifies in the prosecution of votebuying or vote-selling, which is an
election offense.
NOTE:
As long as the suit is criminal in nature,
the party thereto can decline to take the
witness stand. It is not the character of the
suit involved but the nature of the
proceedings that controls (Rosete, et. al. v.
Lim, et. al., G.R. No.136051, June 8, 2006).
ORDER IN THE EXAMINATION OF AN
INDIVIDUAL WITNESS
(Sec. 4, Rule 132)
1.
2.
3.
4.

Direct examination;
Cross-examination;
Redirect examination;
Re-cross examination.

DIRECT EXAMINATION (Sec. 5, Rule 132)


This is the examination-in-chief of a
witness by the party presenting him. It is
actually
a
procedure
for
obtaining
information from ones own witness in an
orderly fashion.
General rule
Testimony in narrative form is NOT allowed.

Exceptions
1. Witness is her own counsel
(Thresher v. Bank,68 Conn. 201, 36
Atl. 38).
2. When allowed by the trial court
(People v.Davis, 6 Cal. App. 229, 91
Pac. 810).
Limitations on Direct Examination
a. Questions calling for conclusions or
opinions, except when opinion
testimony is permissible;
b. Repetitive questions;
c. Compound questions or those which
embrace more than one inquiry to
be answered; and
d. Erroneous assumptions that a
material fact in issue has been
proved or that the witness has given
a certain testimony.
CROSS-EXAMINATION; ITS PURPOSE
AND EXTENT (Sec. 6, Rule 132)
The examination of the witness by the
adverse party after said witness has given
his testimony on direct examination as to
any
matters
stated
in
the
direct
examination, or connected therewith.
Purposes
a. To bring out facts favorable to
counsels client not established by
the direct testimony.
b. To enable counsel to impeach or to
impair credibility of the witness.
General rule
A witness may be cross-examined asto any
matters stated in the direct examination or
connected therewith.
Exceptions
1. Where the witness is an unwilling or
hostile witness so declared by the
court or is an adverse party, the
cross-examination shall only be on

the
subject
matter
of
his
examination-in-chief (Sec. 12, Rule
132); and
2. Where the witness is an accused
who testifies in his own behalf
because he is subject to crossexamination on matters covered by
direct
examination
(Sec.
1[d],
Rule115).
Scope of Cross-Examination:
a. American
Rule
crossexamination must beconfined to
only matters inquired in the direct
examination.
b. English Rule a witness may be
cross-examined not only upon
matters testified to by him on direct
examination, but also on all matters
relevant to the issue.
In this jurisdiction, the English Rule is
followed
which
allows
the
crossexamination to elicit all important facts
bearing upon the issue (Sec. 6). HOWEVER,
in criminal cases, the accused may only be
examined on matters covered by direct
examination (Sec. 1[d], Rule 115).
NOTE:
When a party is cross-examined onmatters
not embraced in his direct examination,
this does not mean that a party by doing so
is making the witness his own in
accordance with Sec. 5 (Capitol Subdivision,
Inc. v. Province of Negros Occidental, 99 Phil.
633).
DOCTRINE OF INCOMPLETE TESTIMONY
General rule
When cross-examination is not andcannot
be done or completed due to causes
attributable to the party who offered the
witness, the uncompleted testimony is
rendered incompetent and should be
stricken from the record (Ortigas, Jr. v.

Lufthansa German
June 1975).

Airlines,L-28773,

30

Exception
Where
the
prosecution
witness
wasextensively cross-examined on the
material points and thereafter failed to
appear and cannot be produced despite a
warrant for his arrest.
Effect of Death or Absence of the
witness after the Direct Examination by
the proponent
1. If the witness was not crossexamined
because
of
causes
attributable to the cross-examining
party and the witness had always
made himself available for crossexamination, the direct testimony of
the witness shall remain on record
and cannot be stricken off because
the crossexaminer is deemed to have
waived his right to cross-examine
(Dela Paz v.IAC, G.R. No. 75860,
Sept. 17, 1987).
2. If the witness was partially crossexamined but died before the
completion of his cross-examination,
his testimony on direct may be
stricken out but only with respect to
the testimony not covered by the
cross-examination
(People
v.
Seeris, G.R. No. L-48883, Aug. 6,
1980).
3. The absence of a witness is not
sufficient to warrant the striking out
of his testimony for failure to appear
for further cross-examination where
the witness has already been
sufficiently cross-examined, and the
matter on which cross-examination
is sought is not in controversy
(Ibid.).

NOTE:
A party who offered the testimony of
awitness is generally bound by such partys
testimony.
Exceptions
1. When the witness is the adverse
party;
2. When the witness is a hostile
witness;
3. When the witness is an unwilling
witness; o
4. When the witness is a witness
required by law to be presented
(forced witness)
A witness may be considered as unwilling
or hostile only if so declared by the court
upon adequate showing of his adverse
interest, unjustified reluctance to testify or
his having misled the party into calling him
to the witness stand (Sec. 12, Rule 132).
RE-DIRECT EXAMINATION; ITS PURPOSE
AND EXTENT (Sec. 7, Rule 132)
A re-examination of the witness by the
party calling him after he has been crossexamined to explain or supplement his
answers given during cross-examination.
Questions on matters not dealt with during
the cross-examination may be allowed by
the court in its discretion.
Purpose
The principal object of re-directexamination
is to prevent injustice to the witness and
the party who has called him by affording
an opportunity to the witness to explain
the testimony given on cross-examination,
and to explain any apparent contradiction
or inconsistency in his statements, an
opportunity which is ordinarily afforded to
him during cross-examination. The redirect examination serves the purpose of
completing the answer of a witness, or of
adding a new matter which has been
omitted, or of correcting a possible

misinterpretation of testimony (People v.


deGuzman, G.R. No. 117217, 2 Dec. 1996).
RE-CROSS-EXAMINATION (Sec. 8, Rule
132)
An examination by the adverse party of a
witness after re-direct examination on
matters stated in his re-direct examination
and also on such other matters in the
discretion of the court.
EXAMINATION OF WITNESSES UNDER
THE RULES ON ELECTRONIC EVIDENCE
AFFIDAVIT EVIDENCE
All matters relating to the admissibility and
evidentiary
weight
of
an
electronic
document may be established by an
affidavit stating facts of direct personal
knowledge of the affiant or based on
authentic records. The affidavit must
affirmatively show the competence of the
affiant to testify on the matters contained
therein (Sec.1, Rule 9, Rules on Electronic
Evidence).
CROSS-EXAMINATION OF DEPONENT
The affiant shall be made to affirm the
contents of the affidavit in open court and
may be cross-examined as a matter of right
by the adverse party (Sec. 2, Rule 9, Rules
on Electronic Evidence).
ELECTRONIC TESTIMONY
After summarily hearing the parties
pursuant to Rule 9 of these Rules, the
court may authorize the presentation of
testimonial evidence by electronic means.
Before so authorizing, the court shall
determine
the
necessity
for
such
presentation and prescribe terms and
conditions as may be necessary under the
circumstances, including the protection of
the rights of the parties and witnesses
concerned (Sec. 1, Rule 10,Rules on
Electronic Evidence).

TRANSCRIPT
OF
ELECTRONIC
TESTIMONY
When examination of a witness is done
electronically, the entire proceedings,
including the questions and answers, shall
be
transcribed
by
a
stenographer,
stenotypist or other recorder authorized for
the purpose, who shall certify as correct
the transcript done by him. The transcript
should reflect the fact that the proceedings,
either in whole or in part, had been
electronically recorded (Sec. 2, Rule 10,
Rules on ElectronicEvidence).
STORAGE OF ELETCRONIC EVIDENCE
The electronic evidence and recording
thereof as well as the stenographic notes
shall form part of the record of the case.
Such transcript and recording shall be
deemed prima facie evidence of such
proceedings (Sec. 3, Rule 10, Rules
onElectronic Evidence).
RECALLING WITNESS (Sec. 9, Rule 132)
When Recall is discretionary
Where all sides inthe case have concluded
their examination of the witness, his recall
for further examination is discretionary
with the court as the interest of justice
requires.
NOTE:
The
discretion
of
a
judge
to
exercisediscretion in recalling witnesses
must rely on something more than the bare
assertion of the need to propound
additional questions is essential before the
court's discretion may rightfully be
exercised to grant or deny recall.
There must be a satisfactory showing of
some concrete, substantial ground for the
recall.
A Judge cannot strike out testimony of a
witness who did not show up under recall
especially when if the defense did not file a
motion to strike such testimony from the

records and most importantly if the defense


had already crossed examined and re-cross
examined such witness. (PEOPLE v. RIVERA
200 SCRA 786 August16, 1991)
When Recall is a matter of right
Where suchexamination has not been
concluded, or if the recall of the witness
was expressly reserved by a party with the
approval of the court, then his recall is a
matter
of
right
(Regalado,
Florenz
D.Remedial Law Compendium Vol. II, 2008).
LEADING AND MISLEADING QUESTIONS
(Sec. 10, Rule 132)
LEADING QUESTION
A question which suggests to the witness
the answer which the examining party
desires.
General rule
Leading question is NOT allowed.
Exceptions
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting
direct and intelligible answers from
a witness who is ignorant, or a child
of tender years, or is of feeble mind,
or a deaf-mute;
4. Of an unwilling or hostile witness;
or
5. Of a witness who is an adverse party
or an officer, director, or managing
agent of a public or private
corporation or of a partnership or
association which is an adverse
party.
Leading questions, as held by the Supreme
Court, may also be allowed in the
examination of a witness who is:
a. Immature;
b. Aged and infirm;
c. In bad physical condition;

d. Uneducated;
e. Ignorant of, or unaccustomed to,
court proceedings;
f. Feeble-minded;
g. Confused and agitated;
h. Terrified;
i. Timid or embarrassed while on the
stand;
j. Lacking in comprehension of
questions or slow to understand;
k. Deaf and dumb; or
l. Unable to speak or understand the
English
language
or
only
imperfectly
familiar
therewith
(People
v.
Dela
Cruz,
G.R.
No.135022, 11 July 2002).
NOTE:
Leading questions are not appropriate
indirect
and
re-direct
examinations
particularly when the witness is asked to
testify about a major element of the cause
of action or defense. However, leading
questions are allowed in a direct
examination:
a. on preliminary matters;
b. when the witness is ignorant, or a
child of tender years, or is feeble
minded, or a deaf-mute;
c. when the witness is a hostile
witness; or (d) when the witness is
an
adverse
party
or
the
representative of a juridical person
which is the adverse party. Leading
questions are allowed in cross and
re-cross examinations. (Evidence,
Riano, 2009)
Leading questions to a Child Witness
As to a child witness, Sec. 10(c), Rule 132
of the Rules of Court should be deemed
modified by Sec. 20 of the Rule on
Examination of a Child Witness. The court
may allow leading questions in ALL stages
of examination of a child if the same will
further the interests of justice (Sec. 20,
Ruleon Examination of a Child Witness).

MISLEADING QUESTION
A question which assumes as true a fact
not yet testified to by the witness, or
contrary to that which he has previously
stated.
General rule
A misleading question is NOT allowed.
Exceptions
1. When waived;
2. In instances wherein hypothetical
questions are asked to an expert
witness.
A party who voluntarily offers the
testimony of a witness in the case is bound
by the testimony of said witness, except:
1. In the case of a hostile witness;
2. When the witness is the adverse
party or the representative of a
juridical person which is the
adverse party; and
3. When the witness is not voluntarily
offered but is required by law to be
presented by the proponent, as in
the case of subscribing witnesses to
a will (Sec. 11, Rule 76).
IMPEACHMENT OF WITNESSES
To impeach a witness means to discredit
the witness testimony. Impeachment of
witness is a technique employed usually as
part of the cross-examination.
IMPEACHMENT OF ADVERSE PARTYS
WITNESS
(Sec. 11, Rule 132)
Impeachment of a witness is a technique
employed usually as part of crossexamination to discredit a witness
testimony by attacking his credibility.
(Riano, Evidence: A Restatement forthe Bar,
p. 323, 2009 ed.)
NOTE:

That the witness is the adverse party


doesnot necessarily mean that the calling
party will not be bound by the formers
testimony. The fact remains that it was at
his instance that his adversary was put on
the witness stand. He is not bound only in
the sense that he may contradict him by
introducing other evidence to prove a state
of facts contrary to what the witness
testifies. Unlike an ordinary witness, the
calling party may impeach an adverse
witness in all respects as if he had been
called by the adverse party, except by
evidence of his bad character. Under a rule
permitting the impeachment of an adverse
witness, although the calling party does not
vouch for the witness veracity, he is
nonetheless bound by his testimony if it is
not contradicted or remains unrebutted
(Gaw v.Chua, G.R. No. 160855, April 16,
2008).

However, a witness CANNOT beimpeached


by evidence of particular wrongful acts
unless there is a showing of previous
conviction by final judgment (Sec. 11, Rule
132).

Modes of Impeaching Adverse partys


Witness:
1. By contradictory evidence;
2. By evidence that his general
reputation for truth, honesty or
integrity is bad; or
3. By evidence that he has mat at
other times statements inconsistent
with his present testimony.

PARTY MAY NOT IMPEACH HIS OWN


WITNESS
(Sec. 12, Rule 132)

Other modes of impeachment aside from


Sec. 11, Rule 132:
1. By involving him during crossexamination in contradiction;
2. By showing the impossibility or
improbability of his testimony;
3. By proving action or conduct of the
witness
inconsistent
with
his
testimony, e.g., failure to make
outcry in rape cases; and
4. By showing bias, interest or hostile
feeling against the adverse party
(Herrera).
NOTE:

Existence of pending information may not


be shown to impeach him (People v. Nanas,
G.R. No.137299, Aug. 21, 2001).
CONTRADICTORY EVIDENCE
Other testimony of thesame witness, or
other evidence presented by him in the
same case, but not the testimony of another
witness.
PRIOR INCONSISTENT STATEMENTS
Statements, oralor documentary, made by
the witness sought to be impeached on
occasions other than the trial in which he
is testifying.

General rule
A party CANNOT impeach thecredibility of
his own witness.
Exceptions
A party CAN impeach his ownwitness,
when the latter is:
1. An unwilling or a hostile witness; or
2. The
adverse
party
or
the
representative of a juridical person
which is the adverse party.
NOTE:
If a witness is called on the part of
theplaintiff who swears what is palpably
false, it would be extremely hard if the
plaintiffs case should for that reason be
sacrificed. The Court knows of no rule of
law by which the truth is on such an
occasion to be shut out and justice to be
perverted. A party must not be obliged to

receive everything which a witness called by


him may swear to, If his witness has been
false or mistaken in his testimony, he may
prove the truth by the testimony of others.
(Becker v. Eisenstodt, 152 A.2d 706, 1960)
Under the current rules of evidence, a party
may not impeach is own witness, except if
he is declared by the court as unwilling or
hostile. A witness may be considered as
unwilling or hostile only if so declared by
the court upon adequate showing of his
adverse interest, unjustified reluctance to
testify, or his having misled the party into
calling him to the witness stand. If the case
were to be decided under the proposed
revised rules of evidence, the decision will
be the same because the provision on the
said subject matter is not part of the
proposed amendments.
Exception to the Exceptions
The adverse witnessor unwilling or hostile
witness CANNOT be impeached by evidence
of his bad character.
UNWILLING OR HOSTILE WITNESS
One declared bythe court as such upon
adequate showing:
a. of his adverse interest;
b. unjustified reluctance to testify; or
c. his having misled the party into
calling him to the witness stand.
HOW WITNESS IMPEACHED BY
WVIDENCE OF INCONSISTENT
STATEMENTS
(Sec. 13, Rule 132)
Procedure (Laying the Predicate)
1. The statement must be related to
the
witness
including
the
circumstances of the times and
places and persons present.
2. If the statements are in writing, they
mustbe shown to the witness before
any question is put to him
concerning them; and he must be

asked whether he made such


statements, and if so, he must be
allowed to explain.
3. If the statement be in writing it
must be shown to the witness before
any question is put to him
concerning them (Sec. 13).
NOTE:
The purpose for laying the predicate is
toallow the witness to admit or deny the
prior statement and afford him an
opportunity to explain the same. Noncompliance with the foundational elements
for this mode of impeachment will be a
ground for an objection based on improper
impeachment.
Laying the predicate also applies to out-ofcourt statements (Herrera).
If the inconsistent statements are found in
the transcript of stenographic notes made
in another case, the cross-examiner should
refer to the particular portions of the
transcript and ask the witness if he did not
make the statements therein attributed to
him. It is improper to just submit the entire
transcript of the former testimony (People v.
Lim Quingsy, 54 Phil. 881).
Effect of Failure to Lay Predicate
The impeachment process is not complete
where the witness is not given an
opportunity to explain the contradictory
statements (People v. Resabal,50 Phil. 780).
A witness cannot be impeached forallegedly
making inconsistent statements in Court
and before police authorities where the
alleged statement before the police was
neither offered in evidence nor shown to the
witness
so
she
can
explain
the
discrepancies (People v. Molo, 88SCRA 22).
Effect of Witness Denial of Making
Statement
If the witness denies making the prior
statement or says that he does not
remember making it, the adverse party
should call in rebuttal a witness to prove

that such statement has in fact been made


(Herrera)
Where No Need of Laying Predicate
Prior contradictory statements of a witness
which are admissible as independent
evidence may be shown without laying the
predicate, e.g., where said testimony
contained admissions against interest
iYsmael & Co. v. Hoskins, 40 Phil. 132).
Falsus in Uno, Falsus in Omnibus
Under this maxim, there is a presumption
that a witness who has willfully given false
testimony in one detail has also testified
falsely in other respects and may be
considered unworthy of belief as to the rest
of his testimony.
However, the rule does not really lay down a
categorical test of credibility (People v.
Letigo,GRN 112968, Feb. 13, 1997). It is not
a positiverule of law or of universal
application. It should not be applied to
portions of the testimony corroborated by
other evidence, particularly were the false
portions could be innocent mistakes.
Inconsistencies and contradictions on
minor details do not impair the credibility of
witnesses as they are but natural (People v.
Pacapac, G.R.No. 90623, Sept. 7, 1995).
Identification Testimony Components
a. Witnessing a crime, whether as a
victim
or
bystander,
involves
perception of an event actually
occurring;
b. The witness must memorize details
of the event; and
c. The witness must be able to recall
and
communicate
what
he
witnessed accurately.
NOTE:
The
danger
of
unreliability
of
eyewitnesstestimony arises at each of these
three stages, for whenever people attempt to
acquire, retain and retrieve information

accurately, they are limited by normal


human
fallibilities
and
suggestive
influences (People v. Teehankee, Jr., G.R.
No.111206-08, Oct. 6, 1995).
Out-of-Court Identification of Suspects
a. Show-ups - where the suspect alone
is brought face to face with the
witness for identification.
b. Mug Shots - where photographs are
shownto the witness to identify the
suspect.
c. Line-ups - where a witness
identifies thesuspect from a group of
persons lined-up for the purpose of
identification.
TOTALITY OF CIRCUMSTANCES TEST
A test to resolve the admissibility and
reliability of out-of-court identification of
suspects by considering the following
factors:
a. The witness opportunity to view the
criminal at the time of the crime;
b. The witness degree of attention at
that time;
c. The
accuracy
of
any
prior
description given by the witness;
d. The level of certainty demonstrated
by the witness at the identification;
e. The length of time between the
crime and the identification; and
f. The
suggestiveness
of
the
identification procedure.
WHEN WITNESS MAY REFER TO
MEMORANDUM
(Sec. 16, Rule 132)
This rule permits a witness to refresh his
memory respecting a fact by anything
written or recorded by himself or under his
direction. This provision applies only when
it is shown beforehand that there is need to
refresh the memory of the witness.
Revival of Present Memory

A witness may beallowed to refresh his


memory respecting a fact, by anything
written or recorded by himself or under his
supervision at the time when the fact
occurred, or immediately thereafter, or
later, so long as he knew that it was
correctly recorded.
Revival of Past Recollection
A witness may alsotestify from such writing
or record, though he retains no recollection
of the particular facts, if he is able to swear
that the writing or record correctly stated
the transaction when made, but such
evidence must be received with caution.
NOTE:
Where
the
witness
has
testifiedindependently of or after his
memory has been refreshed by a
memorandum of the events in dispute,
such memorandum is not admissible as
corroborative evidence, since a witness
may not be corroborated by any written
statement prepared wholly by him
(Borromeo v. CA, L-31342, April 7, 1976).
Requisites:
a. The entries were written or recorded
by the witness himself or by
someone under his direction.
b. He made such entries at the time
the events occurred, or immediately
thereafter, or at any other time when
the facts were still fresh in his
memory;
c. He knew that the same was
correctly written or recorded;
d. The
memorandum
must
be
produced and may be inspected by
the adverse party and who may, if
he chooses cross-examine the
witness upon it; and
e. If the witness retains no recollection
of the particular facts, he must
swear that the writing or record
correctly stated the transaction
made.

REVIVAL OF
PRESENT
MEMORY
Memory is obscure
but there is still
memory.
The main evidence
is testimony of the
witness.
The witness simply
testifies
that
he
knows
the
memorandum
is
correctly written by
him or under his
direction; no need
to swear.

REVIVAL OF PAST
RECOLLECTION
Recollection is zero.

The main evidence


is
the
memorandum.
Witness must swear
that
the
writing
correctly states the
transaction.

EVIDENCE OF GOOD CHARACTER OF


WITNESS
(Sec. 14, Rule 132)
Evidence of the good character of a witness
is not admissible until such character has
been impeached.
Difference
between
character
and
reputation
Character is what you are, reputation is
what the community knows you are.
Reputation may be used to prove character.
Note that reputation evidence is an
exception from the hearsay rule (Sec. 41,
Rule 130).
A persons moral character is relevant
where issues of good or bad faith, fraud,
violence, and immorality are involved.
Persons of good moral character do not
usually deceive, physically hurt, or commit
immoral acts.
OFFER OF COMPROMISE NOT
ADMISSIBLE
(Sec. 27, Rule 132)

COMPROMISE
An agreement made between twoor more
parties as a settlement of matters in
dispute.
Genera Rule
An offer of compromise is NOT an
admission of any liability, and is not
admissible in evidence against the offeror.
Exceptions
In
I civil cases:
1. An offer to pay or the payment of
medical, hospital or other expenses
occasioned by an injury.
2. If such offer is clearly not only to
buy peace but amounts to an
admission of guilt. (El Veraderode
Manila v. Insular Lumber Co., 46 Phil
176)
NOTE:
An offer of compromise by the
accused may be received in evidence
as an IMPLIED ADMISSION of guilt.
In CriminalCases:
1. Those
involving
quasi-offenses
(criminal negligence);
2. Those allowed by law to be
compromised;
3. A plea of guilty later withdrawn;
4. An unaccepted offer of a plea of
guilty to a lesser offense;
5. An offer to pay or the payment of
medical, hospital or other expenses
occasioned by an injury.
The court shall endeavor to persuade the
litigants in a civil case to agree upon some
fair compromise (Art. 2030, Civil Code).
Cases Where Compromise Not Valid
a. Civil status of persons;
b. Validity of a marriage or a legal
separation;
c. Any ground for legal separation;
d. Future support;
e. Jurisdiction of the courts;

f. Future legitime;
g. Habeas corpus; and
h. Election
THE GOOD SAMARITAN RULE
An offer to pay or the payment of medical,
hospital or other expenses occasioned by
an injury is NOT admissible in evidence as
proof of civil or criminal liability for the
injury.
Rationale
Such
humanitarian
acts
or
charitableresponses should be encouraged
and rewarded, instead of being discouraged
or penalized by being considered as
admissions of liability.
Q: Bembol
waschargedwith
rape.
Bembols
father,
Ramil,
approached
Artemon, the victims father, during the
preliminary investigation and offered P1
Million to Artemon to settle the case.
Artemon refused the offer.
(A) During
trial,
the
prosecution
presented Artemon to testify on
Ramils offer and thereby establish
and implied admission of guilt. Is
Ramils offer to settle admissible in
evidence?
(B) During
the
pretrial,Bembol
personally offered to settle the case
for P1 Million to the private
prosecutor, who immediately put
the offer on record in the presence
of the trial judge. Is Bembolsoffer a
judicial admission of his guilt
(Bar 2008)
A: (A) Yes, the offer to settle by the father
of the accused, is admissible in evidence as
an implied admission of guilt. (Peo v.
Salvador, GR No. 136870-72, 28 January
2003)
(B)Yes, Bembols offer is an admission of
guilt (Sec. 33 Rule 130). If it was repeated

by the private prosecutor in the presence of


judge at the pretrial the extrajudicial
confession becomes transposed into a
judicial confession. There is no need of
assistance of counsel. (Peo v. Buntag, GR
No. 123070, 14 April 2004)
OFFER AND OBJECTION
OFFER OF EVIDENCE
(Sec. 34, Rule 132)
General rule
No evidence shall be admittedwhich has not
been formally offered.
Rationale
Formal offer of evidence is essentialbecause
the decision of a judge must rest solely and
strictly upon the evidence presented during
the trial, and no finding of fact can be
sustained without a solid footing on
evidence (Ala-Martin v.Hon. Sultan, GRN
117512, Oct. 2, 2001).
Exception
Evidence NOT formally offered can
beadmitted
provided
the
following
requirements are present:
1. Marked exhibits not formally offered
may be admitted, provided, it
complies with the following:
a. The evidence must have been
duly identified by testimony
duly recorded; and b.) The
same
must
have
been
incorporated to the records
of the case.
2. Under the Rule on Summary
Procedure, where no full blown trial
is held in the interest of speedy
administration of justice;
3. In summary judgments under Rule
35 where the judge based his
decisions
on
the
pleadings,

depositions,
admissions,
affidavits and documents filed with
the
court;
documents
whose
contents are taken judicial notice of
by the court; documents whose
contents are judicially admitted; or
4. Object evidence which could not be
formally offered because they have
disappeared or have become lost
after they have been marked,
identified and testified on and
described in the record and became
the subject of cross examination of
the witness who testified on them
during the trial.
How an offer of evidence is made
When a party makes a formal offer of his
evidence, he must state the nature or
substance of the evidence, and the specific
purpose for which the evidence is offered.
Stages
in
the
Presentation
of
Documentary and Object Evidence:
1. Marking The purpose is to
facilitate theidentification of the
exhibit. It may be made during the
pre-trial or during trial.
2. Identification Presenting proof
that thedocument being presented
is the same as the one referred to by
the witness in his testimony.
3. Authentication

Positive
identification by awitness that the
document presented is genuine and
has been duly executed or that it is
neither spurious nor counterfeit,
nor executed by mistake or under
duress. (Salesvs. Sta. Mesa Market
Corp., GR 157766, July 12, 2007)
4. Inspection
In
case
of
documentaryevidence, whenever a
writing is shown to a witness, it may

be inspected by the adverse party


(Section 18 of Rule 132)
5. Formal Offer After the termination
of thetestimonial evidence, the
proponent will then make a formal
offer and state the purpose for
which the document is presented.
6. Objections - Objection to evidence
offeredorally
must
be
made
immediately after the offer is made.
Objection to a question propounded
in
the
course
of
the
oral
examination of a witness shall be
made as soon as the grounds
therefor shall become reasonably
apparent. An offer of evidence in
writing shall be objected to within
three (3) days after notice of the
offer unless a different period is
allowed by the court. In any case,
the grounds for the objections must
be specified (Sec. 36).(Elmer P.
Brabantes Remedial Law Reviewer
2011, p. 361)
7. Tender of excluded Evidence/
Offer of Proof Remedy of a party if
the
court
improperlyexcluded
otherwise admissible evidence. (Sec.
40, Rule 132)
WHEN TO MAKE OFFER
(Sec. 35, Rule 132)
a. Testimonial Evidence the formal
offer mustbe made at the time the
witness is called to testify.
b. Documentary
and
Object
Evidence theyshall be offered after
the presentation of a partys
testimonial evidence. Such offer
shall be done orally, unless allowed
by the court to be done in writing.

NOTE:
The
defendant
cannot
offer
evidencebefore the plaintiff has rested.

his

Under A.M. No. 03-1-09-SC (Guidelines


tobe Observed by the Trial Court Judges
and Clerks of Court in the Conduct of PreTrial and Use of Deposition-Discovery
Measures, the trial judge, in case efforts
during pre-trial to settle fail, shall
determine the most important witnesses to
be heard and limit the number of witnesses
(Most Important Witness Rule). The facts to
be proven by each witness and the
approximate number of hours per witness
shall be fixed.
OBJECTION
(Sec. 36, Rule 132)
CLASSIFICATIONS OF OBJECTION
1. General and Specific Objections
a. General Objections They
do not indicateany ground
upon which the objections
are predicated. An objection
that
the
evidence
is
incompetent,
irrelevant,
or immaterial is ordinarily
regarded as a general one.
b. Specific
Objections
In
specific objections,the legal
ground for such is specified
or made explicit by precisely
stating the exclusionary rule
that
would
justify
the
opposition to the proferred
evidence. e.g., the question
is beyond the scope of direct
examination.
2. Formal
Objections

and

Substantive

a. Formal Objections one


directed against thealleged
defect in the formulation of
the question. Examples of
defectively
formulated
questions:
ambiguous
questions;
leading
and
misleading
questions;
repetitious questions.
b. Substantive Objections
one directedagainst the very
nature of the evidence, i.e., it
is
inadmissible
either
because it is relevant or
incompetent
or
both.
Examples: parol; not the best
evidence; hearsay; privileged
communication; opinion; res
inter alios acta.
General rule
Every objection to the admissibilityof
evidence shall be made at the time such
evidence is offered, OR as soon thereafter
as the objection to its admissibility shall
have become apparent, otherwise the
objection shall be considered waived.
PURPOSES OF OBJECTIONS
1. To keep out inadmissible evidence
that would cause harm to a clients
cause;
2. To protect the record, i.e. to present
the issue of inadmissibility of the
offered evidence in a way that if the
trial court rules erroneously, the
error can be relied upon as a
ground for a future appeal;
3. To protect a witness from being
embarrassed
by
the
adverse
counsel;
4. To expose adversarys unfair tactics
like
his
consistently
asking
obviously leading questions; and
5. To
give
the
trial
court
an
opportunity to correct its own errors

and at the same time warn the


court that a ruling adverse to the
objector may supply a reason to
invoke a higher courts appellate
jurisdiction.
(Riano,
Evidence:
ARestatement for the Bar, p. 462,
2009 ed.)
TIME TO OBJECT TO EVIDENCE
a. Testimonial Evidence objection to
thequalifications of the witness
should be made at the time he is
called to testify, and if the witness is
otherwise qualified, the objection
should
be
made
when
the
objectionable question is asked or
after the answer is given as soon as
the
grounds
therefor
became
apparent by reason of such answer.
Should a witness answer the
question before the adverse party
had the opportunity to object, and
such objection is meritorious, the
court shall sustain the objection
and order the answer given to be
stricken off the record (Sec. 39, Rule
132).
b. Object/Real Evidence objection
must bemade either at the time it is
presented in an ocular inspection or
demonstration or when it is formally
offered.
c. Documentary
Evidence
the
objection mustbe made at the time it
is formally offered.
NOTE:
An offer of evidence in writing shall
beobjected to within three (3) days after
notice of the offer unless a different period
is allowed by the court.
Effect of Failure to Object
Failure to object involves a WAIVER of
objections and evidence not objected to is

deemed ADMITTED. What the nonobjecting party waives is his objection to


the admissibility of the evidence.
WHEN REPETITION OF OBJECTION
UNNECCESSARY
(Sec. 37, Rule 132)
When it becomes reasonably apparent in
the course of the examination of a witness
that the questions being propounded are of
the SAME CLASS as those to which
objection has been made, whether such
objection was sustained or overruled.
It is sufficient for the adverse party to
record his continuing objection to such
class of questions.
Exceptions
1. Where the question has not been
answered, it is necessary to repeat
the objection when the evidence is
again offered or the question is
again asked;
2. Incompetency is shown later;
3. Where
objection
refers
to
preliminary
question,
objection
must be repeated when the same
question is again asked during the
introduction of actual evidence;
4. Objection to evidence was sustained
but reoffered at a later stage of the
trial;
5. Evidence is admitted on condition
that its competency or relevance be
shown by further evidence and the
condition is not fulfilled, the
objection formerly interposed must
be repeated or a motion to strike out
the evidence must be made; and
6. Where the court reserves the ruling
on objection, the objecting party
must request a ruling or repeat the
objection.
RULING OF THE COURT

(Sec. 38, Rule 132)


General rule
The ruling of the court must begiven
immediately after the objection is made.
Exception
When the court desires to take areasonable
time to inform itself on the question
presented but the ruling shall always be
made during the trial.
NOTE:
The reason for sustaining OR overruling
anobjection need not be stated except if the
objection is based on two or more grounds.
In such case, a ruling SUSTAINING the
objection on one or some of them must
specify the ground or grounds relied upon.
STRIKING OUT OF AN ANSWER
(Sec. 39, Rule 132)
When to Use a Motion to Strike
1. When the answer is premature;
2. When the answer of the witness is
irrelevant, incompetent or otherwise
improper;
3. When the answer is unresponsive;
4. When
the
witness
becomes
unavailable for cross-examination
through no fault of the crossexamining party;
5. When the testimony was allowed
conditionally and the condition for
its admissibility was not fulfilled;
6. When a witness has volunteered
statements in such a way that the
party has not been able to object
thereto;
7. When a witness testifies without a
question being addressed to him; or
8. When a witness testifies beyond the
ruling of the court prescribing the
limits within which he may answer.

TENDER OF EXCLUDED EVIDENCE


(Sec. 40, Rule 132)
Offer of proof
If the trial court rejects an evidenceoffered
by a party, the partys recourse is to make a
formal offer of proof, stating on the record
what the witness could have testified to
were his testimony NOT excluded, as well as
attaching to the record any rejected
exhibits.
Reasons for the Tender of Excluded
Evidence
1. To allow the court to know the
nature of the testimony or the
documentary evidence and convince
the trial judge to permit the
evidence or testimony;
2. Even the judge is not convinced to
reverse his earlier ruling, the tender
is made to create and preserve a
record for appeal.

evidence.

name and other


personal
circumstances
of
the
proposed
witness and the
substance of his
proposed testimony.
If
the
evidence
excluded
is
documentary or of
things, the offer of
proof is made by
having the same
attached to or made
part of the record.

How to Make Offer of Proof


a. Oral Evidence the offeror may
state forthe record the name and
other personal circumstances of the
witness and the substance of his
testimony.
b. Documentary or Object Evidence
theofferor may have the evidence
attached to or made part of the
record.

How Offer of Evidence is made


a. Before the court has ruled on the
objection, in which case its function
is to persuade the court to overrule
the objection or deny the privilege
invoked;
b. After the court has sustained the
objection, in which case its function
is to preserve for the appeal the
evidence excluded by the privilege
invoked;
c. Where the offer of proof includes the
introduction of documents, or any of
the physical evidence, the same
should be marked for identification
so that they may become part of the
record. (Herrera, Vol.VI, p. 344)

OFFER OF
EVIDENCE
Either to the offer of
the testimony of a
witness prior to the
latters testimony or
the offer of the
documentary
and
object evidence after
a
party
has
presented
his
testimonial

Instances when offer of proof is not


required
1. When the question to which an
objection has been sustained clearly
reveals on its face the substance,
purpose and relevancy of the
excluded evidence;
2. When the substance, purpose and
relevancy of the excluded evidence
were made known to the court
either in the court proceedings and
such parts appears on record;

OFFER OF PROOF
Process by
proponent
excluded
tenders the

which a
of an
evidence
same.

If what has been is


testimonial
evidence, the tender
is made by stating
for the record, the

3. Where evidence is inadmissible


when offered and excluded, but
thereafter becomes, it must, be reoffered, unless the court indicates
that a second offer would be
useless. (Herrera, Vol. VI,p. 344-345)
Effect of
Evidence
7.

Erroneous

Admission

of

THE ENGLISH EXCHEQUER RULE


A trial courts error as to the admission of
evidence was presumed to have caused
prejudice and therefore, automatically
required a new trial.
NOTE:
This rule has long been laid to rest even
byEnglish appellate courts.
THE HARMLESS ERROR RULE
An error in the admission of evidence is
disregarded UNLESS in the opinion of the
appellate court, some substantial wrong or
miscarriage of justice has been occasioned.
The appellate court gives judgment after an
examination of the entire record, without
regard to technical errors, defects, or
exceptions which do not affect the
substantial rights of the parties.
NOTE:
This rule superseded the Exchequer
Rule,and is being followed in our
jurisdiction and applied by the Supreme
Court in many cases.
CONTINUING OBJECTION
When a party has previously objected to a
question, whether sustained or overruled,
and succeeding questions are of the same
class as those to which objection has been
made, it shall not be necessary to repeat
the objection, it being sufficient for the
adverse party to record his continuing
objection to such class of questions.

JUDICIAL AFFIDAVIT RULE (JAR)


AM 12-8-8-SC
Purposes:
To decongest court of cases and to reduce
delays in the disposition of cases.
Application of the JAR:
1. Applies to all actions, proceedings or
incidents requiring the reception of
evidence;
2. Applies to all courts, other than the
Supreme Court and to certain nonjudicial bodies;
Specifically:
a. The Metropolitan Trial Courts,
the Municipal Trial Courts in
Cities, the Municipal Trial
Courts, the Municipal Circuit
Trial Courts, and the Shari' a
Circuit Courts but shall not
apply to small claims cases
under A.M. 08-8-7-SC;
b. The Regional Trial Courts and
the Shari'a District Courts;
c. The Sandiganbayan, the Court of
Tax Appeals, the Court of
Appeals,
and
the
Shari'a
Appellate Courts;
d. The investigating officers and
bodies
authorized
by
the
Supreme
Court
to
receive
evidence,
including
the
Integrated Bar of the Philippine
(IBP); and
e. The special courts and quasijudicial bodies, whose rules of
procedure
are
subject
to
disapproval of the Supreme
Court, insofar as their existing

rules of procedure contravene


the provisions of this Rule. (Sec.
1)

Submission of Judicial Affidavits and


Exhibits in lieu of direct testimonies
1. The parties shall file with the court
and serve on the adverse party,
personally or by licensed courier
service, not later than five days
before pre-trial or preliminary
conference or the scheduled hearing
with respect to motions and
incidents, the following:
a. The judicial affidavits of their
witnesses, which shall take
the place of such witnesses'
direct testimonies; and
b. The parties' documentary or
object evidence, if any, which
shall be attached to the
judicial
affidavits
and
marked as Exhibits A, B, C,
and so on in the case of the
complainant or the plaintiff,
and as Exhibits 1, 2, 3, and
so on in the case of the
respondent or the defendant.
2. Should a party or a witness desire to
keep the original document or object
evidence in his possession, he may,
after the same has been identified,
marked
as
exhibit,
and
authenticated,
warrant
in
his
judicial affidavit that the copy or
reproduction attached to such
affidavit is a faithful copy or
reproduction of that original. In
addition, the party or witness shall
bring the original document or
object evidence for comparison
during the preliminary conference
with
the
attached
copy,
reproduction, or pictures, failing

which the
admitted.

latter

shall

not

be

This is without prejudice to the


introduction of secondary evidence
in place of the original when allowed
by existing rules. (Sec. 2)

Contents of judicial Affidavit


A judicial affidavit shall be prepared in the
language known to the witness and, if not
in English or Filipino, accompanied by a
translation in English or Filipino, and shall
contain the following:
a. The name, age, residence or
business address, and occupation of
the witness;
b. The name and address of the lawyer
who conducts or supervises the
examination of the witness and the
place where the examination is
being held;
c. A statement that the witness is
answering the questions asked of
him, fully conscious that he does so
under oath, and that he may face
criminal liability for false testimony
or perjury;
d. Questions asked of the witness and
his
corresponding
answers,
consecutively numbered, that:
i.

Show
the
circumstances
under which the witness
acquired the facts upon
which he testifies;

ii.

Elicit from him those facts


which are relevant to the
issues
that
the
case
presents; and

iii.

Identify
the
attached
documentary
and
object
evidence and establish their
authenticity in accordance
with the Rules of Court;

e. The signature of the witness over his


printed name; and
f.

A jurat with the signature of the


notary public who administers the
oath or an officer who is authorized
by law to administer the same. (Sec.
3)

The adverse party may move to disqualify


the witness or to strike out his affidavit or
any of the answers found in it on ground of
inadmissibility. The court shall promptly
rule on the motion and, if granted, shall
cause the marking of any excluded answer
by placing it in brackets under the initials
of an authorized court personnel, without
prejudice to a tender of excluded evidence
under Section 40 of Rule 132 of the Rules
of Court. (Sec. 6)

Examination of
judicial affidavit
Sworn attestation of the lawyer
The judicial affidavit shall contain a sworn
attestation at the end, executed by the
lawyer who conducted or supervised the
examination of the witness, to the effect
that:
a. He faithfully recorded or caused to
be recorded the questions he asked
and the corresponding answers that
the witness gave; and
b. Neither he nor any other person
then present or assisting him
coached the witness regarding the
latter's answers.

A false attestation shall subject the lawyer


mentioned to disciplinary action, including
disbarment. (Sec. 4)

Offer of and objections to testimony in


judicial affidavit
The party presenting the judicial affidavit of
his witness in place of direct testimony
shall state the purpose of such testimony at
the start of the presentation of the witness.

the

witness

on

his

The adverse party shall have the right to


cross-examine the witness on his judicial
affidavit and on the exhibits attached to the
same. The party who presents the witness
may also examine him as on re-direct. In
every case, the court shall take active part
in examining the witness to determine his
credibility as well as the truth of his
testimony and to elicit the answers that it
needs for resolving the issues. (Sec. 7)

Oral offer of and objections to exhibits


a. Upon the termination of the
testimony of his last witness, a party
shall immediately make an oral offer
of evidence of his documentary or
object exhibits, piece by piece, in
their chronological order, stating the
purpose or purposes for which he
offers the particular exhibit.

b. After each piece of exhibit is offered,


the adverse party shall state the
legal ground for his objection, if any,
to its admission, and the court shall

immediately
make
its
respecting that exhibit.

ruling

c. Since the documentary or object


exhibits form part of the judicial
affidavits
that
describe
and
authenticate them, it is sufficient
that such exhibits are simply cited
by their markings during the offers,
the objections, and the rulings,
dispensing with the description of
each exhibit. (Sec. 8)

If the accused desires to be heard on his


defense after receipt of the judicial
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit as
well as those of his witnesses to the court
within ten days from receipt of such
affidavits and serve a copy of each on the
public and private prosecutor, including his
documentary
and
object
evidence
previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct
testimonies of the accused and his
witnesses when they appear before the
court to testify. (Sec. 9)

Application of rule to criminal actions


This rule shall apply to all criminal actions:
1. Where the maximum of the
imposable penalty does not exceed
six years;
2. Where the accused agrees to the use
of judicial affidavits, irrespective of
the penalty involved; or
3. With respect to the civil aspect of
the actions, whatever the penalties
involved are.

The prosecution shall submit the judicial


affidavits of its witnesses not later than five
days before the pre-trial, serving copies if
the same upon the accused. The
complainant or public prosecutor shall
attach to the affidavits such documentary
or object evidence as he may have, marking
them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or
object evidence shall be admitted at the
trial.

Effect of non-compliance
judicial Affidavit Rule

with

the

A party who fails to submit the required


judicial affidavits and exhibits on time shall
be deemed to have waived their submission.
The court may, however, allow only once the
late submission of the same provided, the
delay is for a valid reason, would not
unduly prejudice the opposing party, and
the defaulting party pays a fine of not less
than P 1,000.00 nor more than P 5,000.00
at the discretion of the court.

The court shall not consider the affidavit of


any witness who fails to appear at the
scheduled hearing of the case as required.
Counsel who fails to appear without valid
cause despite notice shall be deemed to
have waived his client's right to confront by
cross-examination the witnesses there
present.

The court shall not admit as evidence


judicial affidavits that do not conform to
the content requirements of Section 3 and
the attestation requirement of Section 4
above. The court may, however, allow only
once the subsequent submission of the
compliant replacement affidavits before the
hearing or trial provided the delay is for a
valid reason and would not unduly
prejudice the opposing party and provided
further, that public or private counsel
responsible for their preparation and
submission pays a fine of not less than P
1,000.00 nor more than P 5,000.00, at the
discretion of the court. (Sec. 10)

THE RULE ON THE EXAMINATION OF A


CHILD WITNESS
A.M. No. 00-4-07-SC

APPLICABILITY
Unless otherwise provided, this Rule shall
govern the examination of child witnesses
who are victims of crime, accused of a
crime, and witnesses to crime. It shall
apply in all criminal proceedings and noncriminal
proceedings
involving
child
witnesses.
CHILD WITNESS
Any person who at the time of giving
testimony is below the age of eighteen (18)
years. In child abuse cases, a child includes
one over 18 years but is found by the court
as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition
(Sec. 4).
PRESUMPTION OF COMPETENCY

Every child is PRESUMED qualified to be a


witness. Only when substantial doubt
exists regarding the ability of the child to
perceive,
remember,
communicate,
distinguish truth from falsehood or
appreciate the duty to tell the truth in
court will the court, motu proprio or on
motion of a party, conduct a competency
examination of a child (Sec. 6).
NOTE:
Corroborationshall not be required of
atestimony of a child. His testimony, if
credible by itself, shall be sufficient to
support a finding of fact, conclusion or
judgment subject to the standard of proof
required in criminal and non-criminal
cases (Sec. 22).
Burden of proof
To rebut the presumption ofcompetence
enjoyed by a child, the burden of proof lies
on the party challenging his competence.
EXAMINATION OF A CHILD WITNESS
The examination of a child witness
presented in a hearing or any proceeding
shall be done in open court. Unless the
witness is incapacitated to speak, or the
question calls for a different mode of
answer, the answers of the witness shall be
given orally. (Sec. 8)

NOTE:
The examination under Sec. 8 does notrefer
to the competency of the child pursuant to
Sec. 6, but to a situation where the child is
already testifying in court.
Conduct
ofCompetencyExamination
Examination of a child as to his competence
shall be conducted only by the judge.
Counsel for the parties, however, can
submit questions to the judge that he may,
in his discretion, ask the child (Sec. 6[d]).

When to exclude the public


When a child testifies, the court may
orderthe exclusion from the courtroom of
all persons, including members of the
press, who do NOT have a direct interest in
the case.
Said order shall be made to protect the
right to privacy of the child or if the court
determines on the record that requiring the
child to testify in open court would cause
psychological harm to him, hinder the
ascertainment of truth, or result in his
inability to effectively communicate due to
embarrassment, fear, or timidity.
The court may, motu proprio, exclude the
public from the courtroom if the evidence to
be produced during trial is of such
character as to be offensive to decency or
public morals. The court may also, on
motion of the accused, exclude the public
from trial, except court personnel and the
counsel of the parties (Sec. 23).
IINTERPRETER FOR THE CHILD
a. When a child does not understand
the English or Filipino language or
is unable to communicate in said
languages due to his developmental
level, fear, shyness, disability, or
other similar reason, an interpreter
may be appointed by the court,
motu proprio or upon motion, to
interpret for the child.
b. If a witness or member of the family
of the child is the only person who
can serve as an interpreter for the
child, he shall not be disqualified
and may serve as the interpreter of
the child. The interpreter, however,
who is also a witness, shall testify
ahead of the child. (Sec. 9)
FACILITATOR FOR THE CHILD

If the court determines that the child is


unable to understand or respond to
questions asked, the court, may motu
proprio or upon motion, appoint a
facilitator. The facilitator shall in charged
with posing the question to the child.
The facilitator may be a child psychologist,
psychiatrist,
social
worker,
guidance
counselor, teacher, religious leader, parent,
or relative (Sec. 10).
SUPPORT PERSONS
A child testifying at a judicial proceeding or
making a deposition shall have the right to
be accompanied by one or two persons of
his own choosing to provide him emotional
support.
Both support persons shall remain within
the view of the child during his testimony.
One of the support persons may accompany
the child to the witness stand and the court
may also allow the support person to hold
the hand of the child or take other
appropriate steps to provide emotional
support to the child in the course of the
proceedings (Sec. 11).
Leading Questions
The court may allow leading questions in all
stages of examination of a child if the same
will further the interests of justice (Sec. 20).
LIVE-LINK TELEVISION TESTIMONY IN
CRIMINAL CASES WHERE THE CHILD IS
A VICTIM OR A WITNESS
The prosecutor, counsel or the guardian ad
litem may apply for an order that the
testimony of the child be taken in a room
outside the courtroom and be televised to
the courtroom by live-link television.
The court may order that the testimony of
the child be taken by live-link television if
there is a substantial likelihoodthat the
child would suffertrauma from testifying in

the presence of the accused, his counsel or


the prosecutor as the case may be (Sec. 25).
NOTE:
To shield the child from the accused,
thecourt may allow the child to testify in
such a manner that the child cannot see
the accused by testifying through one-way
mirrors, and other devices (Sec. 26).
VIDEOTAPED DEPOSITION
The prosecutor, counsel, or guardian ad
litem may apply for an order that a
deposition be taken of the testimony of the
child and that it be recorded and preserved
on videotape. Before the guardian ad litem
applies for an order under this section, he
shall consult with the prosecutor or
counsel subject to the second and third
paragraphs of Section 25(a).
If the court finds that the child will not be
able to testify in open court at trial, it shall
issue an order that the deposition of the
child be taken and preserved by videotape.
The judge shall preside at the videotaped
deposition of a child. Objections to
deposition testimony or evidence, or parts
thereof, and the grounds for the objection
shall be stated and shall be ruled upon at
the time of the taking of the deposition. The
other persons who may be permitted to be
present at the proceeding are:
a. The prosecutor;
b. The defense counsel;
c. The guardian ad litem;
d. The accused, subject to sub-section
(e);
e. Other persons whose presence is
determined by the court to be
necessary to the welfare and wellbeing of the child;
f. One or both of his support persons,
the facilitator and interpreter, if any;
g. The court stenographer; and
h. Persons necessary to operate the
videotape equipment.

The rights of the accused during trial,


especially the right to counsel and to
confront and cross-examine the child, shall
not be violated during the deposition.
If the order of the court is based on
evidence that the child is unable to testify
in the physical presence of the accused, the
court may direct the latter to be excluded
from the room in which the deposition is
conducted. In case of exclusion of the
accused, the court shall order that the
testimony of the child be taken by live-link
television in accordance with section 25 of
this Rule. If the accused is excluded from
the deposition, it is not necessary that the
child be able to view an image of the
accused.
The videotaped
deposition shall be
preserved and stenographically recorded.
The videotape and the stenographic notes
shall be transmitted to the clerk of the
court where the case is pending for
safekeeping and shall be made a part of the
record.
The court may set other conditions on the
taking of the deposition that it finds just
and appropriate, taking into consideration
the best interests of the child, the
constitutional rights of the accused, and
other relevant factors.
The videotaped deposition and stenographic
notes shall be subject to a protective order
as provided in section 31(b).
If, at the time of trial, the court finds that
the child is unable to testify for a reason
stated in section 25(f) of this Rule, or is
unavailable for any reason described in
section 4(c), Rule 23 of the 1997 Rules of
Civil Procedure, the court may admit into
evidence the videotaped deposition of the
child in lieu of his testimony at the trial.
The court shall issue an order stating the
reasons therefor.

After the original videotaping but before or


during trial, any party may file any motion
for additional videotaping on the ground of
newly discovered evidence. The court may
order an additional videotaped deposition
to receive the newly discovered evidence.
HEARSAY EXCEPTION IN CHILD ABUSE
CASES
A statement made by a child describing any
act or attempted act of child abuse, not
otherwise admissible under the hearsay
rule, may be admitted in evidence in any
criminal or non-criminal proceeding subject
to the following rules:
1. Before such hearsay statement may
be admitted, its proponent shall
make known to the adverse party
the
intention
to
offer
such
statement and its particulars to
provide him a fair opportunity to
object.
2. If the child is available, the court
shall, upon motion of the adverse
party, require the child to be present
at the presentation of the hearsay
statement for cross-examination by
the adverse party. When the child is
unavailable, the fact of such
circumstance must be proved by the
proponent.
3. In ruling on the admissibility of
such hearsay statement, the court
shall consider the time, content and
circumstances thereof which provide
sufficient indicia of reliability.
4. When
the
child
witness
is
unavailable, his hearsay testimony
shall
be
admitted
only
if
corroborated by other admissible
evidence (Sec. 28).
SEXUAL ABUSE (SHIELD) RULE

Evidence offered to prove that the alleged


victim is engaged in other sexual behavior
or to prove the sexual disposition of the
victim is not admissible in any criminal
proceeding exceptwhen such evidence will
prove that a person other than the accused
was the source of semen or injury.
Any videotape or audiotape of a child that is
part of the court record shall be under a
protective order that provides that tapes
may be viewed only by parties, their
counsel, their expert witness, and the
guardian ad litem.
No tape, or any portion thereof, shall be
divulged by any person mentioned in subsection (a) to any other person, except as
necessary for the trial.
No person shall be granted access to the
tape, its transcription or any part thereof
unless he signs a written affirmation that
he has received and read a copy of the
protective order; that he submits to the
jurisdiction of the court with respect to the
protective order; and that in case of
violation thereof, he will be subject to the
contempt power of the court.
Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear
the following cautionary notice:
This object or document and the contents
thereof are subject to a protective order
issued by the court in (case title), (case
number). They shall not be examined,
inspected, read, viewed, or copied by any
person, or disclosed to any person, except
as provided in the protective order. No
additional copies of the tape or any of its
portion shall be made, given, sold, or shown
to any person without prior court order.
Any person violating such protective order
is subject to the contempt power of the

court and other penalties prescribed by


law.
No tape shall be given, loaned, sold, or
shown to any person except as ordered by
the court.
Within thirty (30) days from receipt, all
copies of the tape and any transcripts
thereof shall be returned to the clerk of
court for safekeeping unless the period is
extended by the court on motion of a party.

This protective order shall remain in full


force and effect until further order of the
court(Sec 31[B]).
ADDITIONAL PROTECTIVE ORDERS

The court may, motu proprio or on motion


of any party, the child, his parents, legal
guardian, or the guardian ad litem, issue
additional orders to protect the privacy of
the child.

CRIMINAL PROCEDURE
GENERAL MATTERS
Criminal
Procedure
is
the
method
prescribed by law for the apprehension and
prosecution of persons accused of any
criminal offense, and for their punishment,
in case of conviction.
As applied to criminal law, substantive law
is that which declares what acts are crimes
and prescribes the punishment for
committing them, as distinguished from the
procedural law which provides or regulates
the steps by which one who commits a
crime is to be punished. (Bustos vs Lucero,
81 Phil 650).

Criminal Law
(Substantive)

Criminal
Procedure
(Remedial)

Defines
crimes,
treats
of
their
nature,
and
provides for their
punishment.

Provides for the


method by which a
person accused of a
crime is arrested,
tried and punished.

Provides how
Declares what acts
act
is
to
are punishable.
punished.
Jurisdiction over
the subject
matter
Derived from the
law.It can NEVER
be acquired solely
by consent of the
accused.
Objection
that
the court has no
jurisdiction
over
the subject matter
may be made at
any stage of the

the
be

Jurisdiction over
the person of the
accused
May be acquired
by consent of the
accused
or
by
waiver
of
objections.
If he fails to make
his objection on
time, he will be
deemed to have
waived it.

proceeding,
and
the right to make
such objection is
never waived.

REQUISITES FOR VALID EXERCISE OF


CRIMINAL JURISDICTION
I.

Jurisdiction over the SUBJECT


MATTER

This is the power to hear and determine


cases of the general class to which the
proceeding in question belong.
Philippine
courts
only
have
those
jurisdiction expressly conferred by the
Constitution and statutes and those
necessarily implied to make the express
powers effective.
Jurisdiction over the subject matter is
determined by the statute in force at the
time of the commencement of the action. In
determining whether a case lies within or
outside the jurisdiction of a court, reference
to the applicable statute on the matter is
indispensable. This principle, however, is
different, where jurisdiction is dependent
on the NATURE OF THE POSITION OF THE
ACCUSED at the time of the commission of
the offense (Remedial Law, Oscar Herrera).
The jurisdiction of a court in criminal cases
is determined by the allegations of the
complaint or information.
The filing of a complaint or information in
court initiates a criminal action. The court
thereby acquires jurisdiction over the case
(Remedial Law,Oscar Herrera).

In criminal cases, the jurisdiction of the


court is not determined by what may be
meted out after the trial but by the extent of
the penalty which the law imposes for the
offenses or imposable penalty (Remedial
Law Compendium, FlorenzRegalado).
The objections based on lack of jurisdiction
over the subject matter may be raised or
considered motu proprio by the court at ANY
STAGE of theproceedings or on appeal.
If under the law the court has no
jurisdiction over the subject matter, it
cannot take cognizance of the case,
notwithstanding the silence or acquiescence
of the accused. The exception is when there
is estoppel by laches to bar attacks on
jurisdiction (Remedial Law, Oscar Herrera).
II.

Jurisdiction over the


OF THE ACCUSED

PERSON

It is acquired upon the accuseds arrest


(does not apply to proceedings under
military law) or upon his voluntary
appearance.
Any objection to the procedure leading to
the arrest must be opportunely raised
BEFORE the accused enters his plea.
Voluntary appearance
It is accomplished:
a. byhis pleading to the merits (filing a
motion
to
quash,
appearing
for
arraignment, or entering trial); or
b. by filing bail.
However, if the motion to quash was
precisely and exclusively made to challenge
the jurisdiction of the court over the person
of the accused, he should not be deemed to
have submitted himself to its jurisdiction
(special appearance to be discussed below).
This rule on voluntary appearance is,
however, qualified by and premised on the

assumption that the accused is within the


Philippine territory.
Q: Jose, Alberto and Romeo were charged
with murder. Upon filing the information,
the RTC judge issued warrants for their
arrest. Learning of the issuance of the
warrants, the three accused jointly filed a
motion for reinvestigation and for the recall
of the warrants of arrest. On the date set
for hearing of their motion, none of accused
showed up in court for fear of being
arrested. The RTC judge denied their
motion because the RTC did not acquire
jurisdiction over the persons of the
movants. Did the RTC rule correctly?
(BAR 2008)
A: The RTC was not entirely correct in
stating that it had no jurisdiction over the
persons of the accused. By filing motions
and seeking affirmative reliefs from the
court, the accused voluntarily submitted
themselves to the jurisdiction of the court.
However, the RTC correctly denied the
motion for reinvestigation. Before an
accused can move for reinvestigation and
the recall of his warrant of arrest, he must
first surrender his person to the court
(Miranda, et al. vs. Tuliao, G.R. No. 158763,
31 March 2006).
In an anti-graft case, the voluntary
appearance of the accused, through
counsel, at the pre-suspension hearing is a
submission to the courts jurisdiction
(Remedial
Law
Compendium,
FlorenzRegalado).
In application for bail, however, the accused
must be in custody of law to be entitled to
bail. If the accused is charged with a capital
offense or an offense punishable by
reclusion perpetua or life imprisonment,
the Judge must have jurisdiction over the
person of the accused and over the case.
The court should not even allow a motion

for bail to be set for hearing unless it has


acquired jurisdiction over the person of the
accused and the case by its filing in court
(Remedial Law, Vol.IV (Criminal Procedure),
Oscar Herrera).
Custody how acquired:
The accused must be in custody of the law,
either:
a. by virtue of a warrant or warrantless
arrest; or,
b. when he voluntarily submitted himself to
the
jurisdiction
of
the
court
by
surrendering to the proper authorities.
The mere filing of an application for bail is
not sufficient (only for purposes of bail). In
other cases, the filing of motion or other
papers invoking affirmative relief is a
submission to courts jurisdiction.
PRINCIPLE
OF
JURISDICTION

ADHERENCE

OF

Once jurisdiction is vested in the court, it is


retained up to the end of litigation. It
cannot be withdrawn or defeated by a
subsequent valid amendment of the
information or a subsequent statute
amendatory of the rules of jurisdiction
(Remedial
Law
Compendium,
Florenz
Regalado citing cases).
Exception: Where the subsequent statute
EXPRESSLYPROVIDES, or is CONSTRUED
to the effect that it is applicable to operate
as to actions pending before its enactment.
Where a statute changing the jurisdiction of
a court has no retroactive effect, it cannot
be applied to a case that was pending prior
to the enactment of the statute.
III.

Jurisdiction over the TERRITORY

It is a fundamental rule that for jurisdiction


to be acquired by courts in criminal cases,
the offense should have been committed or
any one of its essential ingredients took

place within the territorial jurisdiction of


the court. Territorial jurisdiction in
criminal cases is the territory where the
court has jurisdiction to take cognizance or
to try the offense allegedly committed by
the accused.
The jurisdiction of the court, especially its
territorial jurisdiction, is determined by the
allegations in the complaint or information
as to the situs of the crime (Remedial
LawCompendium, Florenz Regalado).
In criminal cases, the People of the
Philippines (State) are a party. The interests
of the public require that, to secure the best
results and effects in the punishment of
crime, it is necessary to prosecute and
punish the criminal in the very place, as
near as may be, where he committed his
crime.
Where the place of the commission of the
offense was not specifically charged, the
place may be shown by the evidence.
It is believed that under its supervisory
authority, the Supreme Court and even the
Court of Appeals may properly refer the
case to the court of proper jurisdiction.
Courts of the first and second level are
without authority to order the transfer. If
the said courts believe that it has no
jurisdiction over the subject matter, its
jurisdiction is limited to simply dismissing
the case.
Exceptions:
Extraterritorial offenses under Article 2 of
the RPC:
Offense is committed while on Philippine
ship or airship.
Forging or
notes of
obligations
government

counterfeiting coins, currency


the Philippine Islands or
and securities issued by the
of the Philippines

Liability arising for acts connected with the


introduction
into
these
islands
of
obligations and securities mentioned in the
proceeding number.
Offenses committed by public officers or
employees in the exercise of their functions.
Committing any crimes against national
security and the law of nations, defined in
Title One, Book Two of this Code.
Acts of terrorism against the Filipino
people, against humanity and against the
law of nations wherever committed as
provided by the Human Security Act of
2007.
JURISDICTION OF CRIMINAL COURTS
Criminal Jurisdiction is the authority to
hear and try a particular offense and
impose the punishment for it.
General Rule: The jurisdiction of the court
is determined by:
1. geographical limits of the territory over
which it presides, and
2. criminal and civil actions, it is
empowered to hear and decide
Elements
1. Nature of offense and/or penalty
attached thereto
2. Fact that the offense has been
committed
within
the
territorial
jurisdiction of the court
Notes:
a. The non-concurrence of either of these
two elements may be challenged by an
accused at any stage of the proceedings
in the court below or on appeal.
b. Failure to do so renders the judgment of
conviction null and void.

MAY INJUNCTION BE ISSUED TO


RESTRAINCRIMINAL PROSECUTION?
General Rule: Criminal prosecution may
NOT be restrained or stayed by injunction,
preliminary or final (Herrera) or prohibition
(Regalado.)
Reason: Public interest requires that
criminal acts be immediately investigated
and prosecuted for the protection of the
society.

Exceptions:
1. To afford adequate protection to the
constitutional tights of the accused
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of action
3. When the acts of the officer are without
or in excess of authority
4. When there is a prejudicial question
which is under judicial consideration
5. When the prosecution is under an
invalid law, ordinance or regulation
6. When double jeopardy is clearly
apparent
7. When the court had no jurisdiction over
the offense
8. When it is a case of persecution rather
than prosecution
9. When the charges are manifestly false
and motivated by the lust for revenge
10. When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied
11. To prevent the threatened unlawful
arrest of petitioners
(Remedial Law, Vol. IV Criminal Procedure,
Oscar Herrera.

JURISDICTION OF COURTS IN CRIMINAL CASES


METROPOLITAN, MUNICIPAL, AND MUNICIPAL CIRCUIT TRIAL COURTS

Exclusive
Original

1. All violations of city or municipal ordinances committed within their


respective territorial jurisdictions
2. All offenses punishable with imprisonment of not more that 6 years
irrespective of the amount of fine
3. All offenses except violations of RA 3019, RA 1379 and Arts. 210212 of RPC committed by public officers and employees in relation
to their office, including those employed in GOCCs and by private
individuals charged as co-principals, accomplices, or accessories
punishable with imprisonment or not more than 6 years or where
non of the accused holds position classified as Grade 27 and higher.
Note: MTC will have exclusive original jurisdiction in case of offenses
involving damage to property through criminal negligence regardless of
other penalties and the civil liabilities arising therefrom.

1.
2.
3.
4.
5.

Summary
Procedure

Traffic violations
Violations of rental law
Violations of city or municipal ordinances
Violations of BP Blg.22, Bouncing Check Law
All other offenses where the penalty does not exceed 6 months
imprisonment and/or P1,000 fine, irrespective of other penalties or
civil liabilities arising therefrom, and in offenses involving damage to
property through criminal negligence where the imposable fine does
not exceed P10,000.

Note: In cases where only a fine is provided by law:


a. If the amount is not more than P4,000, MTC has jurisdiction.
b. If more than P4,000, RTC shall have jurisdiction
c. RTC shall also have jurisdiction over offenses committed by public
officers and employees in relation to their office, where fine does not
exceed P6,000 (Admin. Circular 09-94).

REGIONAL TRIAL COURT

Exclusive
Original

a. Criminal cases not falling within the exclusive jurisdiction of any


court, tribunal or body
b. Criminal actions or proceedings for violation of the Omnibus
Election Code
c. Cases of written defamation
d. Criminal actions involving violations of the Comprehensive
Dangerous Drugs Act of 2002
e. Money-Laundering cases

Exclusive
Appellate

1. All cases decided by lower courts in their respective territorial


jurisdiction.

FAMILY COURTS
Exclusive
Original

Criminal Cases where:


a. One of the accused is below 18 years old but not less
than 9.
b. One of the victims is a minor at the time of the
commission of the offense
Cases against minors cognizable under the Dangerous Drugs Act
Violations of RA No. 7610, the Child Abuse Act
Cases of domestic violence against women and children under Sec.5, RA No.
8369
Cases of violence against women and their children under RA No. 9262.

SPECIAL COMMERCIAL COURTS


Exclusive
Original
Exclusive
Appellate

1. Actions or proceedings involving violations of Intellectual Property


Rights
1. Overall cases decided by the MTC within its territorial jurisdiction

NOTE: The Sandiganbayan will have jurisdiction in cases of public officers and private persons
in conspiracy with each other.

SANDIGANBAYAN
1. Exclusive
a. Violations of R.A. 3019, as amended (Anti-Graft and Corrupt
Practices Act), R.A. 1379, and Chapter II, Title VII, Book II of the
RPC, where ONE or MORE of the accused are officials occupying
the following positions in the Government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:

Original

(1)

Officials of the executive branch occupying the positions of the


regional director and higher, otherwise classified as Grade 27 and
higher in R.A. 6758 (Compensation and Position Classification Act
of 1989), specifically including:
a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department heads;
b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other
city department heads;
c) Officials of the diplomatic service occupying the position of
consul and higher;
d) Philippine army and air force colonels, naval captains, and all
officers of higher rank;
e) Officers of the PNP while occupying the position of provincial
director and those holding the rank of senior superintendent
or higher;
f) City and provincial prosecutors and their assistants, and

officials and prosecutors in the Office of the Ombudsman and


Special Prosecutor;
g) Presidents, directors or trustees, or managers of GOCCs, state
universities or educational institutions or foundations;
Original

(2)
(3)
(4)
(5)
(6)

Members of Congress and officials thereof classified as Grade 27


and up under R.A. 6758;
Members of the judiciary without prejudice to the provisions of the
Constitution;
Chairmen and members of Constitutional Commissions, without
prejudice
to the provisions of the Constitution; and
All other national and local officials classified as Grade 27 and
higher under R.A. 6758.
a. Other offenses or felonies whether simple or complexed with
other crimes committed in relation to their office by the
public officials and employees mentioned in Sec. 4(a), P.D.
1606, as amended by R.A. 7975.
b. Civil and criminal cases filed pursuant to and in connection
with E.O. Nos. 1, 2, 14 and 14-A, issued in 1986.

2. Concurrent
a. With the SC: Petitions for mandamus, prohibition, certiorari,
habeas corpus, injunctions and ancillary writs in aid of its
appellate jurisdiction and over petitions of similar nature,
including quo warranto arising or that may arise in cases filed or
which may be filed under E.O. Nos. 1, 2, 14 and 14-A.

Exclusive
Appellate

1. By appeal
From the RTC in cases under P.D. 1606, as amended by P.D. 1861,
R.A. 7975 and R.A. 8294, whether or not the cases were decided by
them in the exercise of their original or appellate jurisdictions.
COURT OF APPEALS
2. Exclusive
Actions for annulment of judgments of the RTC.

Original

3. Concurrent
a. With the SC: Petitions for certiorari, prohibition and
mandamus against the RTCs.
b. With the SC and the RTC: Petitions for certiorari, prohibition
and mandamus against the lower courts.

Exclusive
Appellate

1. By appeal
From the RTC in cases commenced therein, except those appealable
to the SC or the Sandiganbayan.
2. By petition for review
From the RTC in cases appealed thereto from the lower courts
and not appealable to the Sandiganbayan.
SUPREME COURT
1. Exclusive
Petitions for certiorari, prohibition and mandamus against the CA
and the Sandiganbayan.

Original

Exclusive
Appellate

2. Concurrent
a. With the CA: Petitions for certiorari, prohibition, and mandamus
against the RTCs.
b. With the CA and RTCs: Petitions for certiorari, prohibition and
mandamus against the lower courts.
c. With the Sandiganbayan: Petitions for mandamus, prohibition,
certiorari, habeas corpus, injunctions and ancillary writs in aid
of its appellate jurisdiction and over petitions of similar nature,
including quo warranto arising or that may arise in cases filed or
which may be filed under E.O. Nos. 1, 2, 14 and 14-A.
1. By appeal
a. From the RTCs in all criminal cases involving offenses for which
the penalty is reclusion perpetua or life imprisonment, and those
involving other offenses which, although not so punished, arose
out of the same occurrence or which may have been committed
by the accused on the same occasion.
b. Automatic review in criminal cases where the death penalty is
imposed (suspended).
2. By
a.
b.
c.

petition for review on certiorari


From the Court of Appeals;
From the Sandiganbayan; and
From the RTCs where only an error or question of law is involved.

Note: The SC and the CA have no original jurisdiction over criminal cases.

RULE 110
PROSECUTION OF OFFENSES
INSTITUTION OF CRIMINAL ACTION
(SEC. 1)
A criminal case is initiated depending on
whether or not the case involves preliminary
investigation.
1. For offenses where a preliminary
investigation is required (offenses
where the penalty prescribed by law
is AT LEAST 4 years, 2 months and 1
day without regard to the fine): by
filing the COMPLAINT with the
proper officer for the purpose of
conducting the requisite preliminary
investigation (subsection. [a]).
2. For ALL other offenses: (a) by filing
the COMPLAINT or INFORMATION
directly with the MTC and MCTC; or,
(b) by filing the COMPLAINT with the
office of the prosecutor.
In Manila and other chartered cities,
the complaint shall be filed with the
office of the prosecutor unless
otherwise provided in their charters
(subsection. [b]).
3. The institution of the criminal action
shall interrupt the running of the
prescriptive period of the offense
even if the court is without
jurisdiction.
WHO MAY FILE CRIMINAL ACTIONS
A COMPLAINT is a sworn written statement
charging a person with an offense,
subscribed by:
1. the offended party;
2. any peace officer; or

3. other public officer charged with


the enforcement of the law violated.
An INFORMATION is an accusation in
writing charging a person with an offense,
subscribed by the prosecutor and filed
with the court. (Sec. 4)
An information not properly signed cannot
be cured by silence, acquiescence or even
by express consent. (Pedro P. Villa v. Fidel
Ibaez, et al., G.R. No. L-4313, March 20,
1951)
Criminal actions must be commenced in
the name of the People of the
Philippines(Sec. 2); but, the defect is
merely of form and curable at any stage of
the trial. (Albano et al. v. Ar ranz et al, GR
No. L-24403, December 22, 1965, 15 SCRA
518)
CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO
(SEC. 5)
1. In
crimes
concubinage;

of

adultery

and

2. In offenses of seduction, abduction,


or acts of lasciviousness;
3. Criminal actions for defamation
which consist in the imputation of
an offense mentioned above.
NOTE: The Anti-Rape Law of 1997
reclassifiedrape under crimes against
persons under the Revised Penal Code. It
can now be prosecuted without a sworn
written complaint of the offended party.
The crimes of seduction, abduction, or acts
of lasciviousness can be prosecuted by a
complaint
filed
exclusively
and
successively by any of the following
persons in this order, to wit:

A. By the offended woman:


a. Even if the woman is a minor, she
can validly file and subscribe to a
sworn written complaint.
b. If the said offended woman is of legal
age and not otherwise incapacitated,
only she can file the complaint.
c. If the offended woman is a minor or
is otherwise incapacitated and she
refuses or fails to file the complaint,
either of her parents, grandparents
or guardians in that successive order
can file the complaint.
B. By the parents, grandparents or
guardians in that successive order:
a. Neither of those in the succeeding
classes can file the complaint if any
of those in the preceding classes are
present
and
not
otherwise
incapacitated.
b. Either of the parents can file the
sworn written complaint. Also in case
it is the grandparents who can file,
either of them can do so

Corollary to such exclusive grant of power


to the offended spouse to institute the
action, it necessarily follows that such
initiator must have the status, capacity or
legal representation to do so at the time of
the filing of the criminal action (Pilapil v.
Ibay-Somera, et al., G.R. No. 80116, 30June
1989).
Effect of pardon, condonation or
consent
In the crimes of adultery or concubinage,
only offended spouse, who is not otherwise
incapacitated, can validly extend the
pardon or consent contemplated in Sec. 5.
The present rule is that consent refers to
future acts, while pardon refers to past
acts of adultery. The importance of this
distinction is that consent, in order to
absolve the accused from liability, is
sufficient even if granted only to the
offending spouse, whereas pardon must be
extended to both offenders.

C. By the State in the exercise of the


right of parens patriae, when the
offended
party
diesor
becomes
incapacitated before she could file

In seduction, abduction, and acts of


lasciviousness: The offended minor, if with
sufficient discretion, can validly pardon
the accused by herself if she has no
parents or where the accused is her own
father and her mother is dead. The
parents, grandparents o guardian of the
offended minor, in that order, can NOT
extend a valid pardon in said crimes
without the conformity of the offended
party, even if the latter is a minor. If the
offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.

The so-called exclusive and successive rule


in the prosecution of the offenses above
mentioned do not apply to adultery and
concubinage. In other words, only the
offended spouse, and no other, is authorized
by law to initiate therefore.

The pardon contemplated in seduction,


abduction, and acts of lasciviousness must
be EXPRESS; but in concubinage and
adultery, a pardon, whether express or
implied, will suffice to bar a criminal
prosecution therefor.

c. With respect to guardians, only legal


or judicial guardians are qualified to
bring the action.

Once a complaint is filed, the will of the


offended party is ascertained and action
proceeds just as in any other crime. This is
shown by the fact that after filing a
complaint, any pardon given by the
complainant to the offender would be
unavailing
(Donio-Teves v. Vamenta, Jr., G.R. No. L38308, December 26, 1984, 133 SCRA 616.).

prosecution, but if said offended spouse


died AFTER, his death will not prevent the
proceeding from continuing to its ultimate
conclusion. In prosecution for libel, the
death of the offended party BEFORE or
AFTER the complaint was filed does not
abate the action if the libelous imputation
is not for an offense which cannot be
prosecuted de officio.

Effect of the subsequent marriage


between the accused and the offended
party

While the crimes of corruption of minor


and white slavery are considered crimes
against chastity under the RPC, these
crimes can be prosecuted de oficio and
cannot be terminated in accordance with
the rules herein before set forth.

It extinguishes the criminal liability of the


accused or shall remit the penalty already
imposed upon him, together with that of the
co-principals, accomplices and accessories,
except:
1. In adultery and concubinage;
2. where the marriage was invalid or
contracted in bad faith in order to
escape criminal liability;
3. In "private libel," or the libelous
imputation to the complainant of the
commission
of
the
crimes
of
concubinage, adultery, seduction,
abduction,
rape
or
acts
of
lasciviousness, and in slander by
deed; and
4. In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
concerned
(RemedialLaw
Compendium, Florenz Regalado citing
cases).
The acquittal or death of one of the accused
in the crime of adultery as well as
concubinage does not bar the prosecution of
the other accused. However, the death of the
offended spouse BEFORE the filing of the
complaint
for
adultery
bars
further

A sworn written complaint of the offended


party in the prosecution of the crimes of
concubinage,
adultery,
seduction,
abduction, and acts of lasciviousness and
any defamatory imputation of any of the
foregoing offenses is a jurisdictional
requisite.
Imputing prostitution does not indicate
adulterous act and can be prosecuted de
officio (People v. Orcullo, G.R. No. L-57103,
January 30, 1982, 111 SCRA 609).
When a private offense is only a
component, together with a public offense,
of a crime specifically punished by the
RPC, as in the special complex crimes of
robbery with rape or rape with homicide,
the sworn complaint of the offended party
is not required as public interest is
paramount to private interests.
CONTROL OF PROSECUTION
The prosecutor assumes full discretion and
control over a case. He determines whether
a prima facie case exists or not; whether to
move for dismissal for insufficiency of
evidence; to present such evidence as he
considers necessary; to move for dismissal
of a case filed with the CFI (RTC) after

preliminary investigation by a municipal


court; or to reinvestigate a case dismissed
after
preliminary
investigation
by
a
municipal court (RA 1799) or elevated by
said court to the CFI (RTC).
General Rule:
The power vested in theprosecution cannot
be interfered with even by the courts or by
the Secretary of Justice. A fiscal cannot be
compelled to file criminal information and
prosecute the case where he is convinced
that he does not have the necessary
evidence. The better procedure is to appeal
the fiscal's decision to the DOJ and/or ask
for a special prosecutor (Remedial Law
Compendium, FlorenzRegalado citing cases).
Exception:
Where the information has alreadybeen filed
in court, the court acquires jurisdiction
thereover and its jurisdiction continues until
the termination of the case, hence neither
prohibition nor mandamus lies against the
fiscal to control the action in connection
with said case since he has no more control
over it and any relief desired by any party
thereto should be addressed to the trial
court (Hoey v. Provincial Fiscal of Rizal, et
al.,G.R. nos. 61323-24, 29 June 1984). The
onlyqualification is that the action of the
court must not impair the substantial rights
of the accused, or the right of the people to
due process of law (Remedial Law, Oscar
Herrera citing cases).
Although the fiscal retains the direction and
control of the prosecution of criminal cases
even while the case is already in court, he
cannot impose his opinion on the trial court.
The Court is the best and sole judge on what
to do with the case before it. The
determination of the case is within its
exclusive
jurisdiction
and
competence
(Crespo v. Mogul, G.R. no.53373, 30 June
1987).

The public prosecutor may turn over the


actual prosecution of the criminal case, in
the exercise of his discretion, but he may,
at any time, take over the actual conduct
of the trial. Provided: he be present at the
trial until the final determination of the
case; otherwise, if he is absent, it cannot
be gainsaid that the trial is under his
supervision and control. (Neplum, Inc.v
Orbeso, G.R. No. 141986. July 11, 2002,
284 SCRA 466)
The supervision and control of the
prosecutor extends to the civil liability
instituted with the criminal action if it was
not filed separately, reserved or there is no
private prosecutor who intervened (Ricarze
v. CA, G.R. No. 160451,February 9, 2007).
The Solicitor General represents the people
in criminal actions brought to the CA and
the SC.
In
cases
elevated
to
the
Sandiganbayan
and
from
Sandiganbayan to the SC, it is the
Ombudsman through its special
prosecutor who shall represent the
People of the Philippines.
NOTE: Effective 29 April 2012, under
aMemorandum of Agreement between the
DOJ and the Office of the Ombudsman
(OMB), both offices agreed on the following
for prosecution:
1. The
prosecution
of
cases
investigated by the OMB but
referred to the DOJ for prosecution
shall be under the full control of
the DOJ prosecutor. In case,
however, the court orders a
reinvestigation, the same should be
referred
to
the
OMB
for
disposition/resolution.
2. Actions on incidents during the
trial, including those brought
before the appellate courts, shall be

in accordance with existing rules of


OMB & DOJ.
3. The OMB shall ensure that a motion
for reconsideration has been resolved
or the period for filing thereof has
lapsed
before
endorsing
an
Information to the DOJ for filing with
the proper court.
4. The OMB shall provide complete
contact details of all witnesses in
cases referred to the DOJ for
prosecution.
Control by Prosecution
1.
2.
3.
4.

What case to file;


Whom to prosecute;
Manner of prosecution; and
Right of Prosecution to Withdraw
information before arraignment even
without notice and hearing. There must
be leave of court after prior notice and
hearing.

Control by Court Once Case is Filed


1.
2.
3.
4.
5.

Suspension of arraignment;
Reinvestigation;
Prosecution by Fiscal;
Dismissal; and
Downgrading offense or dropping
accused even before plea.

5. Court has authority to review (power of


Judicial
Review)
Secretarys
recommendation and reject it if there is
grave abuse of discretion.
Sec. 11(c), Rule 116,
arraignment does not

*See, however,
Suspension of
exceed 60 days.

To reject or grant motion to dismiss court


must make an independent assessment of
evidence.
Judgment is void if there is no
independent assessment and finding of
grave abuse of discretion (Herrera citing
cases).
SUFFICIENCY OF COMPLAINTOR
INFORMATION
(SEC. 6)
Contents of
information:
(ADADAPO)

valid

complaint

or

1. The name of the accused, including


any appellation or nickname;
2. The designation of the offense by a
statute;
of

3. The acts or omissions complained of as


constituting the offense;

Limitation on Control by Court

4. The name of the offended party

1. Prosecution entitled to notice of hearing;


2. Court must await result of petition for
review;
3. Prosecutions
stand
to
maintain
prosecution should be respected by
court;
4. Ultimate test of courts independence is
where fiscal filed motion to dismiss or to
withdraw information;

5. The
approximate
date
commission of the offense;
6. The place
committed.

where

7. Existence
of
Circumstance.

the

of

offense

the

was

Aggravating

The
purpose
is
to
safeguard
the
constitutional right of an accused to be
informed of the nature and the cause of the
accusation against him so that he can duly
prepare his defense.
Substantial defect in the information
CANNOT be cured by evidence that would
jeopardize the accuseds right to be informed
of the true nature of the offense he is being
charged with, such as omission to allege a
negative averment which is an essential
element of the crime (People v.Asuncion, G.R.
Nos. 83837-42, April 22, 1992).
An allegation of conspiracy, or one that
would impute criminal liability to an accused
for the act of another or others, is
indispensable in order to hold such person,
regardless of the nature and extent of his
participation, equally guilty with the other or
others in the commission of the crime.
Verily, an accused must know from the
information whether he faces a criminal
responsibility not only for his acts but also
for the acts of his co-accused as well (People
v. Quitlong,G.R. No. 121562. July 10, 1998,
292 SCRA 361).
An error in the name of the defendant is not
reversible as long as his identity is
established and this defect is curable at ANY
STAGE of the proceedings. The question as
to the name of the accused should be raised
at the arraignment, not for the first time on
appeal.
DESIGNATION OF OFFENSE
(SEC. 8)
The complaint or information shall:
1. state the designation of the offense
given by the statute;
2. aver
the
acts
or
omissions
constituting the offense; and

3. specify
its
qualifying
aggravating circumstances.

and

If there is no designation of the offense,


reference shall be made to the section or
subsection of the statute punishing it.
The caption in an information is not
controlling; what matters are the material
allegations therein. However, in capital
offenses, the trial court should call the
attention of the accused to the discrepancy
between the designation of the offense in
the preamble of the information and the
facts pleaded in the body thereof so that
he can adjust the strategy of his defense
(RemedialLaw
Compendium,
Florenz
Regalado citing cases).
An accused could not be convicted under
one act when he is charged with a violation
of another if the charge from one statute to
the other involves: a) a change of the
theory of the trial; b) requires of the
defendant a different defense; or, c)
surprises the accused in anyway.
Every complaint or information must state
not only the qualifying but also the
aggravating circumstances; otherwise the
same cannot beproperly appreciated
(People v. Perreras, G.R. No.139622, July
31, 2001.)
It is not the technical name appearing in
the caption of the information that
determines the nature of a crime, rather it
is the facts alleged in the body thereof
(Reyes v. Camilon, L-46198,December 20,
1990).
CAUSE OF ACCUSATION
(SEC. 9)
Purposes:

1. To furnish the accused with such a


description of the charge as to enable
him to make a defense;
2. To enable the court to pronounce the
proper judgment;
3. As a protection against further
prosecution for the same cause.
Every element must be alleged.
It is fundamental that every element of
which the offense is composed must be
alleged in the complaint of information, for if
the facts alleged does not constitute an
offense within the terms and meaning of the
law upon which the accusation is based, or
if the facts alleged may be all true and yet
constitute no offense, the indictment is
insufficient.
Both
qualifying
and
aggravating
circumstances should be expressly and
specifically alleged in the complaint or
information, otherwise the same will not be
considered by the court even if proved
during the trial (Regalado citing People v.
Legaspi,G.R. Nos. 136164-65, 20 April 2001).
A mere statement of habitual delinquency is
a conclusion of law and a plea of guilty to
such an information does not make the
accused a habitual delinquency. The
information should specify the dates: a) of
the commission of previous crimes; 2) of the
last conviction or release; and, 3) of the
other previous conviction or release of the
accused (Remedial Law, Vol. IV(Criminal
Procedure), Oscar Herrera).
In the absence of allegations in information
of recidivism and habitual delinquency, the
evidence was properly objected to as
inadmissible.
Similarly,
the
qualifying
circumstance
of
treachery
must
be
specifically pleaded or alleged with sufficient
clarity as to be readily understood and not
merely deduced.

The Rule on the averment of negativing


exceptions in an information:
Where the statute alleged to have been
violated applies only to a specific class of
persons and to special conditions, the
information must allege facts establishing
that the accused falls within the specific
class affected and not those excepted from
the coverage of the law otherwise it is
quashable for failure to state facts
constituting an offense.
Where the statute penalizes generally the
acts therein defined and is intended to
apply to all persons indiscriminately,
Although some special situations are
excepted from its coverage, the information
is sufficient even if it does not allege that
the accused falls within the excepted
situation, for then the complete definition
of the offense is entirely separable from the
exceptions and can be made without
reference to the latter. If he falls within the
exempted class, the accused may raise
such fact as a defense (Regaladociting
cases).
Where the information is defective because
it is NOT in the proper form, the remedy is
a motion to quash. If the allegations are
vague or indefinite, the accused should
move for a bill of particulars under Sec. 9,
Rule 116 on or before arraignment,
otherwise objections on said ground shall
be deemed waived.
Failure to object to evidence of the mode
ofcommission of crime different from that
alleged in the information is considered a
waiver(p. 125,Remedial Law Book IV,
Herrera).
Limitations of waiver:
a. Waiver is not allowed where
information charges no offense;

the

b. Where the qualifying circumstance is


different is different from the qualifying
circumstance alleged in the information;
c. Where waiver would result in a more
serious penalty;
d. The right to be arraigned cannot be
waived. (p. 129, Remedial Law Book IV,
Herrera)
PLACE OF COMMISSION OF THE
OFFENSE
(SEC. 10)
The complaint or information is sufficient if
it can be understood from its allegations that
the offense was committed or some of the
essential ingredients occurred at some place
within the jurisdiction of the court, unless
the particular place where it was committed
constitutes an essential element of the
offense or is necessary for its identification.
(Sec. 10)
Purpose: To show territorial jurisdiction.
Crimes where place is essential:
1. Violation of Domicile (Art. 128, RPC);
2. Penalty on Keeper, watchman and visitor
of an opium den (Art. 199, RPC);
3. Trespass to Dwelling (Art. 280, RPC);
4. Violation of election law, e.g., 30 meterradius carrying of deadly weapon
prohibited. (Election Code)
A general allegation in a complaint that the
felony was committed within the jurisdiction
of the court is sufficient. The remedy is a
motion for Bill of Particulars under Rule
116, Sec 6. (p.133,Remedial Law Book IV,
Herrera)
DATE OF COMMSSION OF THE OFFENSE
(SEC. 11)

It is not necessary to state in the


complaint or information the precise date
the offense was committed.
Exception: when it is a material ingredient
of theoffense.
The offense may be alleged to have been
committed on a date as near as possible to
the actual date of its commission.(Sec. 11)
Crimes where time is essential:
1. Infanticide;
2. Violation of Sunday Statutes;
3. Abortion
(p.133, Remedial Law Book IV,Herrera).
NAME OF THE OFFENDED PARTY
(SEC. 12)
The complaint or information must state
the name and surname of the person
against whom or against whose property
the offense was committed, or any
appellation or nickname by which such
person has been or is known. If there is no
better way of identifying him, he must be
described under a fictitious name.
a. In offenses against property, if the
name of the offended party is
unknown, the property must be
described with such particularity
as to properly identify the offense
charged.
b. If the true name of the person
against whom or against whose
properly the offense was committed
is
thereafter
disclosed
or
ascertained, the court must cause
the true name to be inserted in the
complaint or information and the
record.
c. If the offended party is a juridical
person, it is sufficient to state its

name, or any name or designation by


which it is known or by which it may
be identified, without need of
averring that it is a juridical person
or that it is organized in accordance
with law.(Sec. 12)
In case of offenses against property, the
designation of the name of the offended
party is not absolutely indispensable for as
long as the criminal act charged in the
complaint or information can be properly
identified (Sayson v.People, G.R. No. L-51745
October 28, 1988, 166 SCRA 693).
DUPLICITY OF THE OFFENSE
(SEC. 13)
A complaint of information is duplicitous if it
charges two or more offenses.
Example: an information which charges
estafa and falsification to conceal the
defraudation.
A motion to quash that more than one
offense charged should therefore be filed,
otherwise it is deemed waived and the
accused may be convicted for as many
offenses charged and proved.
General rule:
A complaint or information mustcharge only
one offense.
Exceptions:
1. Compound crimes- where the law
prescribes a single punishment for
various offenses.
2. Complex crimes- rape with less
serious physical injuries;
3. Special complex crimes-rape with
homicide.
4. Continuous
crimes
or
delicto
continuado-treason, espionage.

5. Crimes
susceptible
of
being
committed in various modesbribery.
6. Crimes of which another offense is
an ingredient-arson, robbery and
physical injuries are absorbed by
rebellion.
When two or more offenses are charged in
a single complaint or information, and the
accused fails to object to it beforethe trial,
the court mayconvict the accused of as
many offenses as are proved, and impose
on him the penalty for each and every one
of them setting out separately the findings
of fact and law in each case. (Section
3,Rule 120.)
CONTINUING
Continuado)

CRIME

(Delito

For delito continuado to exist, there


should be a plurality of acts performed
during a period of time, unity of penal
provision violated, and unity of criminal
intent or purpose, which means that two
or more violations of the same penal
provisions are united in one and the same
intent or resolution leading to the
perpetration of the same criminal purpose
or aim.
In
appearance,
a
delito
continuadoconsists of several crimes but
in reality there is only one crime in the
mind of the perpetrator.
AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION
(SEC. 14)
An amendment of a complaint or
information is the:
a. Adding,
b. Striking out, or

c. Correction of an allegation or name of


any party.
KINDS OF AMENDMENT
Formal
Substantial
One which is NOT One
which
is
prejudicial
to
the prejudicial
to
the
rights of the accused rights of the accused
May be introduced May not be made
after arraignment
after arraignment
Relates to the mode, Recital
of
facts
form or style ofconstituting charged
expressing the facts and determination of
involved, the choice the jurisdiction of the
or arrangement of court
(Almeda
v
words
and
other Villaluz, GR No. Lparticulars
without 31665,
August
6
affecting
he1975).
substantial validity or
sufficiency
of
the
instrument
Change made without Change which affects
going to the merits
the
defense
or
presentation
of
evidence
by
the
accused
Tests:
a. Whether or not a defense under the
complaint or information as it
originally stood would be equally
available after the amendment is
made
b. Whether or not the evidence which
the accused might have had would be
equally applicable after amendment
Note:If the answer is yes, the amendment is
formal. Otherwise, amendment is
substantial.
Rules on Amendment (Rule 110, Sec.14)
1. Before Plea
a. may be amended in form or in
substance

b. without leave of court


In case amendment downgrades the
nature of the offense charged or excludes
any accused from the complaint or
information
a. may only be made upon motion by
the prosecutor
b. with notice to the offended party
c. with leave of court
The court upon resolution must state its
reasons and copies must be furnished to
all parties.
2. After Plea and During trial
a. only formal amendment may be
made
b. with leave of court
c. without causing prejudice to the
rights of the accused
3. If at any time before judgment, a
mistake has been committed in
charging the proper offense, the court:
a. may dismiss the original complaint;
and
b. order the filing of a new one
charging the proper offense in
accordance with Rule 119, Sec.19,
provided the accused would not be
placed
in
double
jeopardy.
(Dimalibot v.Salcedo, GR No. L15012, April 28, 1960)
Note: Substantial amendment can never
be made after the accused has pleaded
Substitution is the dismissal by the court
of the original complaint or information
upon filing of a new one charging the
proper offense provided the accused would
not be place in double jeopardy.
General Rule:
The accused is not required to plea anew
in case of amendment

Exception:
When a supervening fact which changes the
nature of the crime charged in the
information or upgrades it to a higher crime,
in which case, there is a need for another
arraignment of the accused under the
amended information.
Note: Only a valid information may be
amended.
Amendment
The adding, striking
out, or correction of
an
allegation
or
name of any party.

Substitution
The dismissal by
the court of the
original complaint
or information upon
filing of a new one
charging the proper
offense provided the
accused would not
be place in double
jeopardy
Either
formal
or Substantial change
substantial change
Before plea, without Requires leave of
leave of court
court
Except:
If
it
downgrades
the
nature of offense
charged or excludes
any accused from
the complaint or
information
As to form, no need
for
Preliminary
Investigation
and
retaking of plea
An
amended
information refers to
the same offense
charged
in
the
original information
or to an offense
which
necessarily
includes or in the
original
charge,
hence
substantial

amendments to the jeopardy


information after the
plea has been taken
over the objection of
the accused, for if
the original would
be withdrawn, the
accused may invoke
double jeopardy
Second information New
information
involves the same charges an offense
offense; or which which is distinct
necessarily includes and different from
or is necessarily the offense initially
included in the first charged
information
(Pacoy v Cajigal, GR No. 157472,
September 28, 2007)
Q: When may substitution be effected?
A: If it appears at any time before
judgment that a mistake has been made in
charging the proper offense and the
accused cannot be convicted of the offense
charged o any other offense necessarily
included therein.
Q: Shall the accused be discharged from
custody?
A: No, if it there appears good cause to
detain him.

Requires PI and the


accused
has
to
plead anew
Refers to the new
information
involving a different
offense which does
not include or is not
necessarily
included
in
the
original charge, the
accused may not
claim
double

The court shall commit the accused to


answer for the proper offense and dismiss
the original case upon the filing of the
proper information.
Limitations before a new information in
substitution of the original one may be
allowed:
1. that no
rendered

judgment

has

yet

been

2. the accused cannot be convicted of the


offense charged or of any other offense
necessarily included therein
3. the accused would not be placed in
double jeopardy
Note: There is no double jeopardy where
withdrawal is made before arraignment.
Q:What is "res judicata in prison grey"?
(BAR 2010)
A: Res judicata in prison grey is the
criminal concept of double jeopardy, as res
judicata is the doctrine of civil law (Trinidad
vs. Office of the Ombudsman, G.R. No.
166038, December 4, 2007). Described as
res judicata in prison grey, the right
against double jeopardy prohibits the
prosecution of a person for a crime of which
he has been previously acquitted or
convicted. The purpose is to set the effects of
the first prosecution forever at rest, assuring
the accused that he shall not thereafter be
subjected to the danger and anxiety of a
second charge against him for the same
offense (Joel B. Caes vs. Intermediate
Appellate Court, November 6, 1989).
VENUE OF CRIMINALACTIONS
(SEC. 15)
As the court has no jurisdiction to try any
offense committed outside its territorial
jurisdiction. It cannot be waived, or changed
by agreement of the parties, or by the
consent of the defendant.
General rule:
In all criminal prosecution, theactions must
be instituted and tried in the court of the
municipality or territory where the offense
was committed or any of its essential
ingredients occurred (Sec. 15).
Exception:

The
Supreme
Court,
however,
in
theexercise of the judicial power vested by
the constitution upon it and other
statutory courts, possess inherent power
and jurisdiction to decree that the trial
and de[position of the case be transferred
to another court within the same judicial
region whenever the interest of justice and
truth so demands, and thereby the court
that originally had jurisdiction over the
case would not result in a fair and
impartial trial and lead to a miscarriage of
justice (People v. Gutierrez, G.R.No. L32282-83, November 26, 1970, 36 SCRA
172).
Rule on Venues of Criminal Cases
1. Where a crime is committed abroad an
aircraft or moving vehicle, the crime
can be prosecuted in any places
traversed by the train or vehicle-public
or private- or by any aircraft, in the
course of its journey, including the
place of its departure and arrival;
2. Where the crime is committed abroad a
vessel in the course of its voyage, the
case may be filed in any place traversed
by the vessel in the course of its
voyage, but the priority is the case
should be filed in the first port of entry
in the vessel.
In the case of a crime committed aboard a
vessel, the place of departure and of
arrival of the vessel is not included.
Continuing or Transitory Offenses
In transitory or continuing offenses, some
acts material and essential to the crime
occur in one province and some in another,
in which case, the rule is settled that the
court of either province where any of the
essential elements of the crime took place
has jurisdiction to try the case (Parulanv.
Director of Prisons, G.R. No. L-28519
February 17, 1968).

Offenses are continuing or transitory upon


the theory that:
1. There is a new commission;
2. There is continuance;
3. There is repetition of the offense
wherever the defendant may be
found.
Such offenses may be tried by any court of
jurisdiction in which the defendant may be
found. In such a case, the complaint should
allege that the offense was committed within
the jurisdiction of the court and not at the
place where it wasoriginally committed (US v
Cunanan, G.R. No. L-8267, December 27,
1913, 26 Phil. 376).
Exceptions to the Rule on Venue:
1. Felonies under Art.2 of the RPC;
2. Complex Crimes;
3. Where the crime charged is a
complex crime, the RTC of any
province wherein any one of the
essential
elements
had
been
committed has jurisdiction to take
cognizance of the offense;
4. Libel;
5. Where the libelous article is printed
and first published;
6. If one of the offended party is a
private individual, where said private
individual actually
at the time of
the commission of the offense;
7. If the offended party is a public
officer, where the latter holds office
at the time of the commission of the
offense.

DOCTRINE
OF
PRELIMINARY
JURISDICTION
Where two or more courts have concurrent
jurisdiction, the first to validly acquire it has
jurisdiction to the exclusion of the other or
the rest (Villanueva v. Ortiz, 58 O.G. 121)
INTERVENTION OF OFFENDED PARTY

(SEC. 16)
General rule:
Where the civil action for recoveryof civil
liability is instituted in the criminal action
pursuant to Rule 111, an offended party
has right to intervene by counsel in the
prosecution of the criminal action.
Exception:
1. Where from the nature of the crime
and the law defining and punishing
it, no civil liability arises in favor of
a private offended party; and
2. In case where from the nature of
the offense the offended party is
entitled to civil indemnity arising
therefrom but he has waived the
same or expressly reserved his
right to initiate a civil action or he
has already instituted said action.
The offended party, who has neither
reserved, waived, nor instituted the civil
action may intervene (Sec. 16) and such
right to intervene exists even when no civil
liability is involved, as in threats. But
where the civil interest of the principal in
the criminal case is not present, there can
be intervention by a private prosecutor and
the act of the court permitting intervention
under such circumstances constitutes
grave abuse of discretion correctable by
certiorari and prohibition (Remedial Law
Compendium, FlorenzRegalado).
Even if the felonies or delictual acts of the
civil action for the recovery of civil liability
based on said criminal acts is impliedly
instituted and the offended party has not
waived the civil action, reserved the right
to institute it separately or instituted the
civil action prior to the criminal action, the
prosecution of the action inclusive of the
civil action remains under the control and
supervision of the public prosecutor. The
prosecution of offenses is a public

function. With the implied institution of the


civil action in the criminal action, the two
actions are merged into one composite
proceeding, with the criminal action
predominating the civil (Remedial Law,Vol.
IV (Criminal Procedure), Oscar Herrera).
The purposes of the civil action (and what is
included in civil liability as provided under
Art. 104, RPC) are:
1) Restitution;
2) Reparation of the damage caused; and,
3) Indemnification
for
consequential
damages.
Copies of the pleadings in the case are
served on the prosecutor and the accused,
the private prosecutor not being entitled to a
copy thereof as a matter of right and notice
to the prosecutor is notice to the private
prosecutor.
Where the accused pleaded guilty upon
arraignment, although there was an
appearance by a private prosecutor, such
appearance does not constitute the active
intervention as would impart an intention to
press the claim for civil liability in said case
and could not, therefore, bar the institution
of a separate civil action for damages ex
delicto.
The amendment of Sec. 5 has limited the
delegation of such prosecutorial power only
to the private prosecutor, but extended the
duration of his authority under the
contingencies specified therein. Incidentally,
this requirement also ensures that the
private prosecutor is really the counsel of
the offended party.
Where the private prosecution has asserted
its right to intervene in the proceedings, it is
error to consider the appearance of counsel
merely as a matter of tolerance. The offended
party is entitled to be notified and heard on
motions filed in the criminal proceedings
especially when there is a conflict in the

positions between the public prosecutor


and of the offended party.

Q: What is the remedy of the offended


party in case of dismissal or the
prosecutor refuses to institute the
criminal action?
A: The offended party may:
1. lodge a new complaint
2. appeal to or take up the matter with
the Secretary of Justice
3. institute an administrative charge
against the fiscal
4. institute a criminal action against the
fiscal; file a civil action for damages
against the prosecuting fiscal.
RULE 111
PROSECUTION OF CIVIL ACTION
RULE ON IMPLIED INSTITUTION OF
CIVILWITH CRIMINAL ACTION
(SEC. 1)
General Rule:
When the criminal action isinstituted, the
civil action for the recovery of the civil
liability arising from the offense charged
shall be deemed instituted with the
criminal action.
Exceptions:
1. When the offended party waives the
civil action;
2. When the offended party reserves his
right to file a separate civil action;
3. When the offended party institutes a
civil action prior to the criminal action.
Only civil liability arising from delict is
deemed instituted.Civil liabilities arising

from othersources of obligations are not


deemed instituted.
Civil actions arising from Articles 32, 33, 34
and 2176 of the Civil Code can be
prosecuted even without reservation because
they
are
now
considered
separate
independent civil actions under Section 3,
Rule 111.
Rule 111 is intended to provide for the
procedural disposition of civil actions arising
from a criminal offense, or civil liability ex
delicto.
The waiver of the civil action may either be
express or implied.
Expressly prohibited is the filing of a
counterclaim, cross-claim or third-party
complaint by the accused even if the civil
action is included in the criminal action
since that does not detract from the fact that
the proceeding is criminal in nature.
Where an offense is committed by a public
officer in relation to his duties, and the same
is cognizable by the regular court because
the imposable penalty does not exceed 6
years imprisonment and/or a fine of P6,000,
the criminal and civil liability shall be jointly
decided in the same action and there can be
no reservation of the civil action. This follows
the same procedure in the Sandiganbayan
(Sec. 4,P.D. 1606, as amended by P.D. 1861).
Sec. 1 provides that "reservation of the right
to institute separately the civil action shall
be made before the prosecution starts
presenting its evidence." But where the
accused had pleaded guilty when arraigned
and there was no trial on the merits, such
reservation may be made at any time
BEFORE the rendition of the judgment
(Regalado citing Tactaquin v. Palileo, L20865, 29 Dec. 1967).

Where the trial court awards indemnity in


the criminal case to the offended party,
despite the latter's reservation to institute
a separate civil action, the trial court acts
without or in excess of jurisdiction, and
does not constitute res judicata or a bar to
a civil action thereafter filed by the
offended party for civil damages arising
from the criminal act.
In a criminal action against an employee,
the offended party need not reserve his
right to proceed against the former's
employer as the latter is secondarily liable
and his liability is not litigated in the
action against the employee. However, it
has been held that a judgment of
conviction against an employee with an
award for indemnity in favor of the victim
or his heirs, in the absence of collusion
between said accused and the latter, is
conclusive upon the employer for the
enforcement of the subsidiary civil liability
under Art. 103 of the RPC. Said subsidiary
liability may be enforced in the same
proceeding, without the need of filing a
separate civil action, upon proper notice
and opportunity to be heard granted to the
employer. There will be no denial of due
process since the employer may raise his
defenses at the hearing of the motion to
enforce his subsidiary liability.
In the case of Madeja v. Caro, et al. (G.R.
No.51183, 21 Dec. 1983), the term
"physical injuries"in Art. 33 of the Civil
Code is used in a generic sense, hence the
same applies in a case of homicide through
reckless imprudence and the civil action ex
delicto can proceed independently of the
criminal action.
Where the civil action is instituted with the
criminal action, evidence should be taken
of the damages claimed and the court
should determine the persons are entitled
to such indemnity. If no evidence of

damages has been received, the court cannot


award the corresponding civil liability and
the remedy is to reserve in favor of the
offended party the right to institute the civil
action.
Where the civil action based on culpa
aquiliana is dismissed, this does not
preclude the court in trying the criminal
case from awarding civil liability in the latter
case as civil liability ex delicto under Art.
103, RPC, since there is no identity in
remedies and reliefs (Jocson, et al., v.
Glorioso, L-22686, 30 Jan. 1968).
Where the civil action is deemed impliedly
instituted with the criminal action, the
complainant
cannot
just
unilaterally
withdraw his claim for damages without the
approval of the court as the option granted
him is ALTERNATIVE, not cumulative, and
the choice once made is irretrievable (Art.
1201, Civil Code).
WHEN SEPARATE CIVIL ACTION
IS SUSPENDED
(SEC. 2)
PRIMACY OF CRIMINAL ACTION
General Rules:
1. After the criminal action has been
commenced, the separate civil action
arising therefrom cannot be instituted
until final judgment has been entered in
the criminal action (par. 1).
2. If the criminal action is filed AFTER the
said civil action has already been
instituted, the latter shall be suspended
in whatever stage it may be found before
judgment on the merits (subject to the
rule on consolidation of the criminal and
civil action). The suspension shall last
until final judgment is rendered in the
criminal action (par. 2).

Exceptions:
1. In cases of independent civil
actions (Arts. 32, 33, 34 and 2176
of the Civil Code);
2. In cases where the civil action
presents a prejudicial question;
3. Where the civil action is not one
intended to enforce the civil liability
arising from the offense;
4. In cases where the civil action is
consolidated with the criminal
action (Section 3(a), Rule 111
supra).
Consolidation
Before judgment on the merits is rendered
in the civil action, the same may, upon
motion of the offended party, be
consolidated with the criminal action in
the court trying the criminal action. In
case of consolidation, the evidence
alreadyadduced in the civil action shall be
deemed automatically reproduced in the
criminal action without prejudice to the
right of the prosecution to cross-examine
the witnesses presented by the offended
party in the criminal case and of the
parties to present additional evidence. The
consolidated criminal and civil actions
shall be tried and decided jointly (par. 2).
The civil action that should be suspended
after the institution of the criminal action
is that one which has arisen from the
crime and not based on quasi-delict or
culpa aquiliana.
Even if the civil action is suspended, the
court wherein it is pending can issue
auxiliary
writs
therein,
such
as
preliminary injunction or attachment,
appointments of receivers and similar
processes which do not necessarily go into
the merits of the case (Remedial
LawCompendium, Florenz Regalado citing

Babala v. Abao, G.R. No. L-4600, February


28, 1952, 90 Phil. 827).
Acquittal in a criminal action bars the civil
action arising therefrom where the judgment
of acquittal holds that the accused did not
commit the acts imputed to him or where it
was held that the accused was not guilty of
criminal,
even
civil,
negligence.
Consequently, acquittal in the criminal case
does NOT bar a civil action in the following
cases:
1. Where the acquittal is based on
reasonable doubt, as only preponderance
of evidence is required in civil cases;
2. Where the court declared that the
accused's liability is not criminal but
only civil in nature; and
3. Where the civil liability does not arise
from or is not based upon the criminal
act of which the accused was acquitted
(RemedialLaw
Compendium,
Florenz
Regalado citing cases).
The extinction of the civil action by reason of
acquittal in the criminal case refers
exclusively to civil liability ex delicto founded
on Art. 100 of the RPC. Where the damages
were due to the negligence of the accused, a
separate civil action under Art. 2176 of the
Civil Code on quasi-delict still lies against
the accused, despite his acquittal in the
criminal case, as long as the complainant is
not awarded double recovery for the same
act of negligence (Elcano, et al. v. Hill, et al.,
L-24803, 26May 1977).

WHEN CIVIL ACTION MAY


PROCEED INDEPENDENTLY
(SEC. 3)

1. The institution of an independent civil


action against the offender under Arts.
32, 33, 34 and 2176 of the Civil Code
may proceed independently of the
criminal case at the same time without
suspension of either proceedings;
2. Recovery of civil liability under Arts.
32, 33, 34 and 2176 of the Civil Code
arising from the same act or omission
may be prosecuted separately even
without reservation. The reservation
and waiver herein refers only to the
civil action for the recovery of civil
liability arising from the offense
charged;
Purpose: To prevent the offended party
fromrecovering damages twice for the
same act or omission. (Prohibition for
double recovery)
Q: Is reservation required in case of
independent civil action?
A: No reservation is required for the
offended party to file an independent civil
action. They are not deemed instituted
with the criminal action. (Casupanan v.
Laroya.G.R. No. 145391, August 26, 2002)
3. Civil case (on account of fraud) can
proceed independently of the criminal
case for estafa without having to
reserve the filing of the civil action. The
reservation and waiver referred to in
Section 1 of Rule 111 pertains only to
the civil action for the recovery of the
civil liability arising from the offense
charged
(DMPI
Employees
Credit
Cooperative,
Inc.
v.
Hon.AlejandroM.Valez,GR.
129282,
November 29, 2001);
4. Subsidiary liability of the employer for
libel by his employee cannot be
proceeded against thru an independent

civil action under Article 33 of the Civil


Code pending resolution of the criminal
case
(InternationalFlavours
and
Fragrances (Phil.), Inc. v. Merlin Argos and
Jaja Pineda, GR. No. 130363, September
10, 2001).
Both Arts. 2176 and 2177 of the Civil Code
govern the matter of civil liability arising
from a quasi-delict or civil liability ex quasi
delicto. On the other hand, it is civil liability
ex delicto which the concern of Art. 365 and
the substantive provisions of the RPC, as
well as the procedural edicts of Rule 111
(Remedial
Law
Compendium,
Florenz
Regalado).
EFFECT OF DEATH OF THE ACCUSED
ORCONVICT ON CIVIL ACTION
(SEC. 4)
Rule when a criminal action has been
instituted and accused dies:
1. Before arraignment
a. the case shall be dismissed
without prejudiced to any civil
action the offended party may file
against the estate of the accused
2. after arraignment and during pendency
a. the
civil
action
shall
be
extinguished
Notes:
Under Art. 89 of RPC, death of the convict
before judgment extinguishes the criminal
and civil liabilities.
The civil action referred in this section is the
civil action deemed instituted with the
criminal action. An Independent civil action
filed may be continued against the legal
representatives of the accused after proper
substitution or against the estate of the
accused.
PREJUDICIAL QUESTION

(SECS. 6 and 7)
The doctrine of prejudicial question comes
into play generally in a situation where the
civil and criminal actions are pending and
in the former an issue must be
preemptively resolved before the criminal
action may proceed. This does not apply
where no civil, but only administrative,
case is involved.
A prejudicial question is based on a fact
distinct and separate from crime but so
intimately connected with it that it
determines the guilt andinnocence of the
accused.
A petition for suspension by reason of a
prejudicial question may be filed and
resolved in the preliminary investigation.
In the trial court, after the prosecution has
rested its case, such petition cannot be
entertained. Also, where the prosecution
has presented its evidence and the defense
is being presented, the prosecution cannot
ask for the suspension based on said
ground. Under Sec. 11(b), Rule 116, the
petition for suspension may be filed
BEFORE the arraignment, in which case
the arraignment is suspended. However,
these rules are NOT applicable where the
same act of the accused is the subject of
an administrative action and a criminal
case which are separate, distinct and
different from each other.
Elements of a prejudicial question (PID)
1. Previously instituted civil action
2. Involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action
3. Resolution of such issue determines
whether or not the criminal action may
proceed.
Effect:

1. May invoke to suspend the subsequent


criminal action
2. Filed in the office of the prosecutor
conducting the preliminary investigation;
or
3. Pending
criminal
action
before
prosecution rests
Resolution of the civil action for specific
performance, recovery of over payment, and
damage is not a prejudicial question to
warrant the suspension of the trial court of
the criminal cases for violation of B.P. 22
(Eddie Sabandal v. Hon. Felipe Tongco, GR
No. 124498, October 5, 2001.)

RULE ON THE FILING FEES IN CIVIL


ACTION DEEMED INSTITUTED WITH
CRIMINAL ACTION
No filing fees shall be required for ACTUAL
damages (par. [a], Rule 111), except in
criminal actions for violation of B.P. Blg. 22
where the offended party shall pay in full the
filing fees based on the amount of the check
involved (par. [b]).
a. Where the amount of damages, OTHER
THAN ACTUAL, is specified in the
complaint or information filed in court,
then the corresponding filing fees shall
be paid by the offended party upon the
filing thereof in court for trial (Sec. 1);
and
b. In ANY OTHER CASE, that is, when the
amount of damages is NOT so alleged,
the corresponding filing fees need NOT
be paid and shall simply constitute a
first lien on the judgment, except on an
award for actual damages (Remedial Law
Compendium, Florenz Regalado citing
General v. Claravall, et al., G.R. No.
96724, 22 March 1991.)

RULE 112
PRELIMINARY INVESTIGATION NATURE
OF RIGHT
It is an inquiry or proceeding to determine
whether there is sufficient ground to
engender a well-founded belief that a crime
has been committed and the respondent is
probably guilty thereof, and should be held
for trial(Sec. 1)
A preliminary investigation is merely
inquisitorial, but it is considered a judicial
proceeding wherein the prosecutor or
investigating officer by nature of his
functions acts as a quasi-judicial officer.
Preliminary investigation is not part of the
due process clause of the Constitution, but
is purely statutory and may be denied by
law. But if thelaw provides for preliminary
investigation and such right is claimed by
the accused, a denial thereof is a denial of
due process and prohibition will issue
against the trial court or, if a judgment of
conviction has already been rendered, on
appeal, the same shall be reversed and the
case
remanded
for
preliminary
investigation.
The right to a preliminary investigation
may be waived expressly or by silence, and
the accused alone may waive its denial
since it is a personal right.
The right to preliminary investigation is a
substantive right.
The quantum of evidence required in PI is
such evidence as suffices to "engender a
well-founded belief" as to the fact of the
commission
of
a
crime
and
the
respondent's probable guilt thereof (Sec. 1).
The other terminology used is that the
investigating prosecutor "finds cause to
hold the respondent for trial" (Sec. 4, first

par.), or where "a probable cause exists"(Sec.


4, fourth par.).

4. To protect the state from having to


conduct useless and extensive trials;

The absence of a preliminary investigation


does not affect the jurisdiction of the court
or invalidate the information if no objection
was raised by the accused and is not a
ground for dismissal. Any objection to the
lack of PI must be made BEFORE entry of
plea and the court, instead of dismissing the
information, must remand the case for PI.
The refusal of the court to remand the case
for PI can be controlled by certiorari and
prohibition to prevent trial. However, such
objection cannot be raised for the first time
on appeal.

5. To determine the amount of bail, if the


offense is bailable.

Consenting to be arraigned and entering a


plea of not guilty without invoking the right
to preliminary investigation is a waiver. It
should be invoked prior to or at least, at the
time of the plea (People v. De Asis, G.R. No.
105581,December 7, 1993, 228 SCRA 267.)
PURPOSES
PRELIMINARYINVESTIGATION

OF

1. To determine whether a crime has been


committed and whether there is probable
cause to believe that the accused is
guilty thereof;
2. To protect the accused from the
inconvenience and burden of defending
himself in a formal trial unless the
reasonable probability of his guilt shall
have been first ascertained in a fairly
summary proceeding by a competent
officer;
3. To secure the innocent against hasty,
malicious and oppressive prosecution
and to protect him from an open and
public accusation of a crime and from
the trouble, expenses and anxiety of
public trial;

The right to preliminary investigation is a


personal right covered by statute and may
be
waived.Absence
of
preliminary
investigationdoes not affect the jurisdiction
of the court or invalidate the information if
no objection was raised by the accused
(Larranaga v. CA, GR No.130644, Mar 13,
1998).
A preliminary investigation is not part of
the trial, the dismissal of the case by the
investigatorwill not constitute double
jeopardy and will not bar the filling of
another complaint for the same offense,
but if re-filed, the accused is entitled to
another preliminary investigation.
WHO MAY CONDUCT THE
DETERMINATION OF EXISTENCE OF
PROBABLE CAUSE
(SEC. 2)
1. Provincial or city prosecutors and their
assistants;
2. National
and
Regional
State
Prosecutors; and
3. Other officers as may be authorized by
law.
Other officers authorized by law:
1. Authorized legal officers of the
COMELEC on criminal violations of
the election law. For said purpose,
they may enlist the assistance of
the prosecutorial arm of the
Government (Sec. 265, Omnibus
Election Code);
2. Lawyers appointed as special
prosecutors under Sec. 1686 of the

Revised Administrative Code to assist


the fiscal;
3. The Office of the Tanodbayan (Office
of the Special Prosecutor) or such
officers duly empowered or deputized
by it in cases cognizable by the
Sandiganbayan (limited power as
compared to that of Ombudsman's);
4. The Ombudsman in cases within the
jurisdiction of the Sandiganbayan as
well as those within the jurisdiction
of the regular courts (plenary power
as compared to that of the
Tanodbayan's);
5. The PCGG.
NOTE: The Office of the Solicitor General is
notauthorized to represent any public official
at any stage of a criminal case or in a civil
suit for damages arising from a criminal
offense.
Beginning October 3, 2005,first- level courts
judges can no longer accept new cases for
preliminary investigation, as per Supreme
CourtAdministrative Matter No. 05-8-26 SC
dated August 30, 2005. Under the new rules,
only provincial and city prosecutors and
their assistants, national and regional state
prosecutors, and other officers authorized by
law shall be authorized to conduct
preliminary investigations.

PROCEDURE OF PRELIMINARY
INVESTIGATION
(SEC. 3)
1. File complaint, sworn affidavits and other
supporting documents.
The affidavits shall be subscribed and
sworn to before:

a. any prosecutor or government


official authorized to administer
oath; or
b. in
their
absence
or
unavailability, before a notary
public.
Each of whom must certify that he
personally examined the affiants and that
he is satisfied that they voluntarily
executed and understood their affidavits
(Sec. 3[a]).
2. Within ten (10) days after the filing of
the complaint, the investigating officer
shall either:
a. DISMISS it if he finds no
ground to continue with the
investigation; or
b. ISSUE a subpoena to the
respondent attaching to it a
copy of the complaint and its
supporting
affidavits
and
document.
3. Within ten (10) days from receipt of the
subpoena with the complaint and
supporting affidavits and documents,
the respondent shall submit his
counter-affidavit and that of his
witnesses
and
other
supporting
documents relied upon for his defense.
The respondent shall NOT be allowed
to file a motion to dismiss in lieu of a
counter-affidavit.
4. If
the
respondent
cannot
be
subpoenaed, or if subpoenaed, does
not submit counter-affidavits within
the
ten
(10)
day
period,
the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant.
5. The investigating officer may set a
hearing if there are such facts and

issues to be clarified from a party or a


witness. The parties can be present at
the hearing but without the right to
examine or cross-examine. They may,
however, submit to the investigating
officer questions which may be asked to
the party or witness concerned.
The hearing shall be held within ten (10)
days from submission of the counteraffidavits and other documents or from
the expiration of the period for their
submission. It shall be terminated within
five (5) days.
6. Within
ten
(10)
days
after
the
investigation, the investigating officer
shall determine whether or not there is
sufficient ground to hold the respondent
for trial.
Rights of the accused during preliminary
investigation:
1. Right to discovery procedures;
2. Right to be notified of the proceedings
and to be notified thereat;
3. Preliminary investigation should be
completed.
Contra:
1. No right to cross examine the
witnesses which the complainant
may present;
2. No
right
to
counsel
during
preliminary investigation;
3. Right to be present, not absolute.
Meaning of probable cause for purpose of
filing information
It is the existence of such facts and
circumstances as would excite the belief in a
reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the
person charged was guilty of the crime.

RESOLUTION OF
INVESTIGATION PROSECUTOR
(SEC. 4)
If the investigating prosecutor finds cause
to hold the respondent for trial (or as
worded under Sec. 1 of this Rule, when
"there is sufficient ground to engender a
well-founded belief that a crime has
been committed and the respondent is
probably guilty thereof"), he shall prepare
the 1) resolution and 2) information.
He shall certify
information:

under

oath

in

the

1. that he, or as shown by the record, an


authorized officer, has personally
examined the complainant and his
witnesses;
2. that there is reasonable ground to
believe that a crime has been
committed and that the accused is
probably guilty thereof;
3. that the accused was informed of the
complaint
and
of
the
evidence
submitted against him; and
4. that he was given an opportunity to
submit controverting evidence.
Otherwise, he shall recommend
dismissal of the complaint.

the

Within five (5) days from his resolution, he


shall forward the record of the case to the
a) provincial or city prosecutor or b) chief
state prosecutor, or to the c) Ombudsman
or his deputy in cases of offenses
cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They
shall act on the resolution within ten (10)
days from their receipt thereof and shall

immediately inform the parties of such


action.
If a preliminary investigation was actually
conducted, the absence of certification by
the investigating fiscal that it was conducted
is not fatal.
Absence of certification as to holding of
preliminary investigation does not affect the
validity of information.
The determination made by the assistant
fiscal of state prosecutor in his resolution is
at best recommendatory.Their findings may
be reversed or modified by the provincial or
city fiscal.
Appeal to the Secretary of Justice
(DOJ Circular NO. 70, Dated July 3,
2000)
The appeal shall be taken within 15 days
from receipt of the resolution, or of the
denial
of
the
motion
for
reconsideration/reinvestigation if one has
been filed within 15 days from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed (Sec. 3). The
appeal is done by filing a verified petition for
review with the Office of the Secretary,
Department of Justice, and by furnishing
copies thereof to the adverse party and the
Prosecution Office issuing the appealed
resolution (Sec. 4).
Unless the Secretary of Justice directs
otherwise, the appeal shall not hold the
filing of the corresponding information in
court on the basis of the finding of probable
cause in the appealed resolution. The
appellant and the trial prosecutor shall see
to it that, pending resolution of the appeal,
the proceedings in court are held in
abeyance (Sec. 9). The Secretary of Justice
may dismiss the petition outright if he finds
the same to be patently without merit or
manifestly intended for delay, or when the

issues raised therein are too unsubstantial


to require consideration. If an information
has been filed in court pursuant to the
appealed resolution, the petition shall not
be given due course if the accused had
already been arraigned. Any arraignment
made after the filing of the petition shall
not bar the Secretary of Justice from
exercising his power of review (Sec. 7). If
theSecretary of Justice finds it necessary
to
reinvestigate
the
case,
the
reinvestigation shall be held by the
investigating
prosecutor,
unless,
for
compelling reasons, another prosecutor is
designated to conduct the same (Sec. 11).
The Secretary may
modify the appealed
motu proprio or upon
petition for review on
grounds:

reverse, affirm or
resolution. He may,
motion, dismiss the
any of the following

1. That the petition was filed beyond


the period prescribed in Section 3
of the Circular;
2. That the procedure or any of the
requirements herein provided has
not been complied with;
3. That there is no showing of any
reversible error;
4. That the appealed resolution is
interlocutory in nature, except
when it suspends the proceedings
based on the alleged existence of a
prejudicial question;
5. That the accused had already been
arraigned when the appeal was
taken;
6. That the offense has already
prescribed; and
7. That other legal or factual grounds
exist to warrant a dismissal (Sec.
12).
Memorandum Circular No. 58 (June 30,
1993)

No appeal from or petition for review of


decisions/orders/resolutions
of
the
Secretary
of
Justice
on
preliminary
investigations of criminal cases shall be
entertained by the Office of the President,
except those involving offenses punishable
by reclusion perpetua to death wherein new
and material issues are raised which were
not previously presented before the DOJ and
were not ruled upon in the subject
decision/order/resolution, in which case the
President may order the Secretary of Justice
to reopen/review the case, provided, that the
prescription of the offense is not due to lapse
within six (6) months from notice of the
questioned resolution/order/decision, and
provided further, that, the appeal or petition
for review is filed, that the appeal or petition
for review is filed within thirty (30) days from
such notice.

exists, the latter may, by himself, file the


information against the respondent, or
direct another assistant prosecutor or state
prosecutor to do so without conducting
another preliminary investigation.

Henceforth, if an appeal or petition for review


does not clearly fall within the jurisdiction of
sale the office of the president, as set forth
in the immediately preceding paragraph, it
shall be dismissed outright and no order
shall be issued requiring the payment of the
appeal fee, the submission of appeal
brief/memorandum or the elevation of the
records to the Office of the President from
the Department of Justice (Angeles v. Gaite
GR. No.165276, November 25, 2009).

WHEN WARRANT OF ARREST MAY


ISSUE(SEC. 5)

REVIEW OF THE RESOLUTION


(SEC. 4)
No complaint or information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or
approval of the provincial or city prosecutor
or the Ombudsman or his deputy.
Where
the
investigating
prosecutor
recommends the dismissal of the complaint
but his recommendation is disapproved by
the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause

If upon petition by a proper party under


such rules as the Department of Justice
may prescribe or motu proprio, the
Secretary of Justice reverses or modifies
the resolution of the provincial or city
prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned
either to file the corresponding information
without conducting another preliminary
investigation, or to dismiss or move for
dismissal of the complaint or information
with notice to the parties. The same rule
shall apply in preliminary investigations
conducted by the officers of the Office of
the Ombudsman.

If the judge finds probable cause, he shall


issue a warrant of arrest or a commitment
order if the accused has already been
arrested and hold him for trial.
The RTC judge need NOT personally
examine the complaint and witnesses in
the determination of probable cause for the
issuance of the warrant of arrest.He is only
required to personallyevaluate the report
and the supporting documents submitted
during the preliminary investigation by the
fiscal and on the basis thereof he may
dismiss, issue warrant or require further
affidavits.
Probable cause
Presupposes a reasonable ground for belief
in the existence of facts warranting the
proceedings complained of. It is based on
an apparent state of facts found to exist
upon reasonable inquiry which would

induce a reasonably intelligent and prudent


man to believe that the accused person had
committed the crime charged.
By the Regional Trial Court.
Within ten (10) days from the filing of the
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence. He
may immediately dismiss the case if the
evidence on record clearly fails to establish
probable cause.
By the Municipal Trial Court.
When required pursuant to the second
paragraph of section 1 of this Rule, the
preliminary investigation of cases falling
under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court or
Municipal Circuit Trial Court SHALL be
conducted by the prosecutor.
The procedure for the issuance of a warrant
of arrest by the judge is the same for both
the RTC and the MTC: If the judge finds
probable cause, he shall issue a warrant of
arrest, or a commitment order when the
complaint or information was filed pursuant
to section 6 of this Rule. In case of doubt on
the existence of probable cause, the judge
may order the prosecutor to present
additional evidence within five (5) days from
notice and the issue must be resolved by the
court within thirty (30) days from the filing
of the complaint or information.
When warrant of arrest not necessary
A warrant of arrest shall not issue:

if the accused is already under detention


pursuant to a warrant issued by the
municipal trial court in accordance with
paragraph (b) of this section; or

if the complaint or information was


filed:
a. pursuant to section 6 of this
Rule; or
b. for an offense penalized by fine
only.

The court shall then proceed in the


exercise of its original jurisdiction.
A warrant of arrest is a legal process
issued by competent authority, directing
the arrest of a person or persons upon
grounds stated therein. It is usually
directed to regular officers of the law, but
occasionally, it is issued to a private
person named in it (Remedial Law, Oscar
Herrera citing 4Am. Jur. 9).
The term "searching questions and
answers" means such questions as may
have the tendency to show the commission
of the crime and the perpetrator thereof.
What would be searching questions would
depend on what is sought to inquired into,
such as the nature of the offense; the date,
time and place of its commission; the
subject, his age, education, status,
financial and social circumstances, and so
forth. The points that are the subject of
the inquiry may differ from case to case,
hence the questions to a great degree
depend upon the judge making the
investigation
(Remedial
Law
Compendium,Florenz Regalado).
Art. III, Sec. 2 of the 1987 Constitution
provides:
"X X X no search warrant or warrant of
arrest shall issue except upon probable
cause to be determined personally by the
judge after examination under oath or
affirmation of the complainant and the
witnesses
he
may
produce,
and
particularly describing the place to be
searched and the persons or things to be
seized."

In the case of Soliven, et al. v. Makasiar, et


al. (G.R. No. 82585, 14 Nov. 1988), the Court
had the occasion to interpret the addition of
the word "personally" after the word
"determined" and the deletion of the grant of
authority by the 1973 Constitution to issue
warrants to "other responsible officers as
may be authorized by law."
The SC clarified that: "what the Constitution
underscores is the exclusive and personal
responsibility of the issuing judge tosatisfy
himself of the existence of probable cause. In
satisfying himself of the existence of
probable cause for the issuance of a warrant
of arrest, the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine
and procedure, he shall:
1. personally evaluate the report and
the supporting documents submitted
by the fiscal regarding the existence
of probable cause and, on the basis
thereof, issue a warrant of arrest; or
2. if on the basis thereof he finds no
probable cause, he may disregard the
fiscal's report and require the
submission of supporting affidavits of
witnesses to aid him in arriving at a
conclusion as to the existence of
probable cause."
The fiscal's certification of the existence of
probable cause does NOT bind the judge to
come out with the warrant. The issuance of
a warrant is not a mere ministerial function;
it calls for the exercise of judicial discretion
on the part of the issuing magistrate (Placer,
et al. v. Villanueva,G.R. Nos. 60349-62, 29
Dec. 1983).
The obvious purpose of requiring the
submission of affidavits of the complainant
and of his witnesses is to enable the court to
determine whether to dismiss the case
outright or to require further proceedings.

A finding of probable cause by the judge


should no longer, in the meantime, be
subject to judicial review, except in the
regular course of appeal.
There is no requirement to notify and hear
the accused before the issuance of
warrants of arrest.
The absence of probable cause for the
immediate issuance of a warrant of arrest
is not a ground for the quashal of the
information but is a ground for the
dismissal of the case under Sec. 5, Rule
112 which is without prejudice.
WHEN ACCUSED LAWFULLY ARRESTED
WITHOUT WARRANT
(SEC. 6)
A preliminary investigation is not required
in
cases
of
valid
warrantless
arrests.When aperson is lawfully arrested
without a warrant involving an offense
which requires a preliminary investigation,
the complaint or information may be filed
by a prosecutor without need of such
investigation provided an inquest has been
conducted in accordance with existing
rules. However, after the filing of the
complaint or information in court without
a preliminary investigation, the accused
may, within five (5) days from the time he
learns of its filing, ask for a preliminary
investigation.
Q: A criminal information is filed in court
charging Anselmo with homicide. Anselmo
files a motion to quash information on the
ground that no preliminary investigation
was conducted. Will the motion be
granted? Why or why not? (BAR 2009)
A:NO, the motion to quash
granted.
The
lack
of
investigation is not a ground
to quash under the Rules

will not be
preliminary
for a motion
of Criminal

Procedure. Preliminary investigation is only


a statutory right and can be waived. The
accused should instead file a motion for
reinvestigation within five (5) days after he
learns of the filing in Court of the case
against him (Sec. 6, Rule 112, as amended).
RECORDS
(SEC. 7)
1. Records supporting the information or
complaint.

An
information
or
complaint filed in court shall be
supported by the affidavits and counteraffidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution
on the case.

2. Record of preliminary investigation.


The
record
of
the
preliminary
investigation conducted by a prosecutor
OR OTHER OFFICERS AS MAY BE
AUTHORIZED BY LAW shall not form
part of the record of the case. However,
the court, on its own initiative or on
motion of any party, may order the
production of the record or any of its
part when necessary in the resolution of
the case or any incident therein, or when
it is to be introduced as an evidence in
the case by the requesting party.

Since the record of the PI shall not form part


of the case records in the RTC, the court is
not compelled to motu propio take judicial
notice thereof even if the same are in the
records of the case therein. The judge may,
however, order the production of said
records and this complements Sec. 6, Rule
116 regarding the production of documents
(Remedial
Law
Compedium,
FlorenzRegalado.)
CASES NOT REQUIRING PRELIMINARY

INVESTIGATION
(SEC. 8)
Complaints involving offenses punishable
by imprisonment of less than 4 years, two
months and one day:
If filed with the prosecutor
File the complaint, sworn affidavits
and other supporting documents with
the prosecutor.

The prosecutor shall act on the


complaint based on the affidavits and
other supporting documents submitted
by the complainant within ten (10)
days from its filing.

If filed with the Municipal Trial Court

File the complaint, sworn affidavits


and other supporting documents
with the MTC.

The judge has 10 days to determine


whether there is probable cause.
He shall either:
Dismiss
the
complaint
or
information, if he finds no probable
cause after personally evaluating
the evidence, OR after personally
examining in writing and under
oath the complainant and his
witnesses in the form of searching
questions and answers; or
Issue a warrant of arrest, or a
commitment order if the accused
had already been arrested, AND
hold him for trial (however, he may
issue summons if he is satisfied
that there is no necessity for
placing
the
accused
under
custody).

NOTE: Before dismissal of the case, the


judgemay, however, require the submission

of additional evidence, within ten (10) days


from notice, to determine further the
existence of probable cause. If the judge still
finds no probable cause despite the
additional evidence, he shall, within ten (10)
days from its submission or expiration of
said period, dismiss the case.

DistinctionofInquestandPreliminary
Investigation
Inquest is not a regular preliminary
investigation. In preliminary investigation,
the person brought in the court is not
arrested. In inquest, person arrested is
brought before the judicial authorities.

REMEDIES OF THE ACCUSED IF THERE


WAS NO PRELIMINARY INVESTIGATION
CONDUCTED
Refuse to enter a plea upon
arraignment and object to further
proceedings upon such ground.
Insist on a preliminary investigation.
File a certiorari, if refused.
File a petition for prohibition (Conde
v. CFI,G.R. No. L-21236, Oct. 1, 1923).
Raise
lack
of
preliminary
investigation as error on appeal (U.S.
v. Banzuela, G.R. No. 10172,October
1, 1915).

Two situations contemplated:

As preliminary investigation is NOT a part of


the trial, the dismissal of the case by the
investigator will not constitute double
jeopardy and will not bar the filing of
another complaint for the same offense, but
if re-filed, the accused is entitled to another
preliminary investigation (U.S. v. Marfori,No.
10905, December 9, 1916).
INQUEST
An informal and summary investigation
conducted by a public prosecutor in criminal
cases involving persons arrested and
detained without the benefit of a warrant of
arrest issuedby the court for the purpose of
determining whether or not said persons
should
remain
under
custody
and
correspondingly be charged in court.
There are specific crimes which cannot be
the subject of inquest even if one is arrested
without a warrant because additional
evidence is required.

1. When the person is lawfully arrested


without a warrant for an offense which
requires a preliminary investigation, and
no complaint or information has yet been
filed, he may ask for a preliminary
investigation by signing a waiver of the
provisions of Art. 125 of the RPC (in
presence of his counsel).
To prevent prolonged detention pending
preliminary investigation, the accused may
apply for bail even if no information has
been filed. In any event, the PI must be
terminated within 15 days from its
inception.
2. When a person is lawfully arrested
without a warrant for an offense which
requires a preliminary investigation and
the complaint was filed by the offended
party, peace officer or fiscal without a
preliminary investigation, the accused may
within 5 days from the time he learns of
the filing of the information, ask for a PI
with the same right to adduce evidence in
his favor in the manner prescribed in the
Rule.
The 5-day period for filing a motion for
preliminary investigation is MANDATORY.
Where
the
information
was
amended
without
a
new
preliminary investigation having
been conducted, the 5-day period is
computed from the time the
accused learns of the filing of said
amended information.

When a person is lawfully arrested


without a warrant involving an
offense which requires a preliminary
investigation,
the
complaint
or
information may be filed by a
prosecutor without need of such
investigation provided an inquest has
been conducted in accordance with
existing rules. In the absence or
unavailability
of
an
inquest
prosecutor, the complaint may be
filed by the offended party or by a
peace officer directly with the proper
court on the basis of the affidavit of
the offended party or arresting officer
or person (par. 1).
Where the prosecutor drops the
accused from the information, the
reason therefor should be specified,
as the trial court must be alert to the
possibility that the prosecutor may
be in error.
Where the trial court has granted a
motion for reinvestigation, it must
hold in abeyance the arraignment
and the trial of the accused until the
prosecutor shall have conducted and
made a report on the result of such
reinvestigation.

A person lawfully arrested may post bail


before the filing of the information or even
after its filing without waiving his right to PI,
provided that he asks for a PI by the proper
officer within the period fixed in the said
rule.
The accused may be estopped to question
the illegality of the arrest by entering a plea
of not guilty without moving to quash the
information on such ground.
NOTE: Effective 29 April 2012, under
aMemorandum of Agreement between the
DOJ and the Office of the Ombudsman

(OMB), both offices agreed on this for


inquest:
Inquest of complaints for crimes cognizable
by the Sandiganbayan shall be conducted
by the OMB: Provided, That inquest of
such complaints for crimes committed
outside the National Capital Judicial
Region may be conducted by the
city/provincial
prosecutors
who
are
authorized to approve and file the
Information before the respective Clerks of
Court of RTC, pursuant to Ombudsman
Admin. Order No. 11-94.
RULE 113
ARREST
It pertains to the taking of a person into
custody in order that he may be bound to
answer for the commission of an offense
(Sec. 1.)
Warrant of arrest is an order addressed to
a lawenforcement officer commanding him
to physically restrain a person to make him
answer for the commission of an offense.
ARREST; HOW MADE
(SEC. 2)
It is made by an actual restraint of a
person to be arrested, or by his submission
to the custody of the person making the
arrest.
The application of actual force, manual
touching of the body, physical restraint or
formal declaration of arrest is not required.
It is enough that there is intent on the part
of one of the parties to arrest the other and
an intent on the part of the other to
submit, under the belief and impression
that submission is necessary.

There is no arrest when the person sought to


be arrested is not conscious of any restraint
of his liberty (4 Am. Jur., 5-6).
Notoriety rightly supplies a basis for
redoubledofficial alertness and vigilance, it
never can justify precipitate action at the
cost of human life (People v. Oanis, G.R. No.
L-47722, July 27, 1943,74 Phil. 257).
An arrest is made:
by an actual restraint of a person to
be arrested; or
by his submission to the custody of
the person making the arrest.
No violence or unnecessary force shall be
used in making an arrest. The person
arrested shall not be subject to a greater
restraint than is necessary for his detention.
Upon arrest, the following may
confiscated from the person arrested:

the

(SEC. 3)
It shall be the duty of the officer executing
the warrant to arrest the accused and
deliver him to the nearest police station or
jail without unnecessary delay.
EXECUTION OF WARRANT
(SEC. 4)
The head of the office to whom the warrant
of arrest was delivered for execution shall
cause the warrant to be executed within
ten (10) days from its receipt. Within ten
(10) days after the expiration of the period,
the officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant. In case of his
failure to execute the warrant, he shall
state the reasons therefor.
Modes of arrest
arrest with a warrant (Sec. 3); or
arrest without warrant (Sec. 5.)

Personal property subject


offense (Sec. 3[a], Rule 126);

Personal
property
stolen
or
embezzled and other proceeds, or
fruits of the offense (Sec.3[b], Rule
126);

ARREST WITHOUT WARRANT;

Personal property used or intended to


be used as the means of committing
an offense (Sec. 3[c], Rule 126);

Those which might be used by the


arrested person to commit violence or
to escape (People v. Veloso, G.R. No.
L-23051 October 20, 1925, 48 Phil.
169);and

General Rule:
No peace officer or person has thepower or
authority to arrest anyone without a
warrant except in those cases expressly
authorized by law (Umil v. Ramos, G.R.
No.81567, October 3, 1991).

of

be

DUTY OF ARRESTING OFFICER

Dangerous weapons or anything


which may have been used or
constitute proof in the commission of
an offense (in searchesincident to
lawful arrests; Sec. 13, Rule 126.)

WHEN LAWFUL
(SEC. 5)

Exception:
In cases of lawful warrantless
arrests: A peace officer or a private
person may, without a warrant,
arrest a person:
o

When, in his presence, the


person to be arrested has
committed,
is

actuallycommitting,
or
is
attempting to commit an
offense (in flagrante delicto,
par. [a]);
o

When an offense has just


been committed and he has
probable cause to believe
based on personal knowledge
offacts or circumstances that
the person tobe arrested has
committed it (hot pursuit, par.
[b]);
When the person to be
arrested is a prisoner who has
escaped
from
a
penal
establishment or place where
he is serving final judgment
or temporarily confined while
his case is pending, or has
escaped
while
being
transferred
from
one
confinement to another (par.
[c].)

Where the person who has been


lawfully arrested escapes or is
rescued (Sec.13, Rule113).

By the bondsmen for the purpose of


surrendering the accused (Sec. 23,
Rule 114).

Where the accused attempt to leave


the country without permission of
the court(Sec.23, Rule 114).

In cases falling under paragraphs (a) and (b)


of Sec. 5, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail and shall be
proceeded against in accordance with
Section 6 of Rule 112.
Citizens arrest is an arrest effected by a
private person.

Essential
arrests

requisites

of

in

flagrante

1. The person to be arrested must execute


an OVERT ACT indicating that has just
committed, is actually committing, or
is attempting to commit an offense;
and
2. Such overt act is done in the presence
or withinthe view of the arresting
officer.
An offense is committed in the presence or
within the view of an officer, when the
officer sees the offense, although at a
distance, or hears the disturbances
created thereby and proceeds at once to
the scene thereof (US v. Samonte, G.R.No.
5649, September 6, 1910 16 Phil. 516.)
Note: Warrantless arrest is not justified by
themere fact that a crime is being
committed in ones presence. The arresting
officer must have personal knowledge of
such commission. The knowledge must
precede the arrest.(People v.Laguio, G.R.
No. 128587, March 16, 2007.)
Q: AX swindled RY in the amount of P10,
000 sometime in mid-2003. On the
strength of the sworn statement given by
RY
personally
to SPO1 Juan Ramos
sometime in mid-2004, and without
securing a
warrant, the police officer
arrested AX. Forthwith the police officer
filed with the City Prosecutor of Manila a
complaint for estafa supported by RY"s
sworn statement and other documentary
evidence. After due inquest, the prosecutor
filed the requisite information with the MM
RTC. No preliminary investigation was
conducted either before or after the filing
of the information and the accused at no
time asked for such an investigation.
However, before arraignment, the accused
moved to quash the information on the
ground that the prosecutor suffered from a

want of authority to file the information


because of his failure to conduct a
preliminary investigation before filing the
information, as required by the Rules of
Court. Is the warrantless arrest of AX
valid? Is he entitled to a preliminary
investigation before the filing of the
information? Explain.(BAR 1998)
A:No. The warrantless arrest is not valid
because the alleged offense has not just
been committed. The crime was allegedly
committed one year before the arrest. (Sec. 5
(b) of Rule 113)
Yes, he is entitled to a preliminary
investigation because he was not lawfully
arrested without a warrant (ec. 7 of Rule
112). He can move for a reinvestigation.
Arrest is unlawful where there was no
urgency and there is opportunity to obtain
warrant.
In a buy-bust operation, the violator is
caught in flagrante delicto and the police
officers conducting the operation are not
only
authorized
but
duty-bound
to
apprehend the violator and to search him for
anything that may have been part of or used
in the commission of the crime. The buybust operation and search and seizure
pursuant to the buy-bust operation must be
continuous.
Elements of Hot Pursuit arrests
1. Offense have been committed - The
rule now is that, indubitable
existence of a crime is NOT necessary
to justify a warrantless arrest;
2. Offense has just been committed This connotes immediacy in point of
time. The time interval between the
actual commission of the crime and
the arrival of the arresting officer
must be brief;
3. Probable cause based on personal
knowledge of facts or circumstances

that persons
committed it.

to

be

arrested

Arrest upon mere suspicion is invalid as


such suspicion must be engendered by
good faith and reasonable grounds
(Remedial
Law,
Vol.
IV(Criminal
Procedure), Florenz Regalado.)

Q: As Cicero was walking down a dark


alley one midnight, he saw an "owner-type
jeepney" approaching him. Sensing that
the occupants of the vehicle were up to no
good, he darted into a corner and ran.
The occupants of the vehicle elements
from the Western Police District gave
chase and apprehended him. The police
apprehended Cicero, frisked him and
found a sachet of 0.09 gram of shabu
tucked in his waist and a Swiss knife in
his secret pocket, and detained him
thereafter. Is the arrest and body-search
legal? (BAR 2010)
A: No, the arrest and the body-search
were not legal. In this case, Cicero did not
run because the occupants of the vehicle
identified themselves as police officers. He
darted into the corner and ran upon the
belief that the occupants of the vehicle
were up to no good. Ciceros act of
running does not show any reasonable
ground to believe that a crime has been
committed or is about to be committed for
the police officers to apprehend him and
conduct body search. Hence, the arrest
was illegal as it does not fall under any of
the circumstances for a valid warrantless
arrest provided in Sec. 5 of Rule 113 of the
Rules of Criminal Procedure.
Thegrounds of suspicion are reasonable
when, in the absence of actual belief of
the arresting officers, the suspicion that

the person to be arrested is probably guilty


of committing the offense, is based on
actual
facts,
i.e.,
supported
by
circumstances
sufficiently
strong
in
themselves to create the probable cause of
guilt of the person to be arrested. A
reasonable suspicion therefore must be
founded on probable cause, coupled
withgood faith on the part of the peace
officers making the arrest (Umil v. Ramos,
G.R. No. 81567, 3 October 1991 citing U.S. v.
Santos, 36 Phil. 851.)

issued for his


arrest.
NOTE:
The
an
officer
need
opportunity
not have the
to
inform
warrant in his
him; and
possession at
c. when
the
the time of
giving
of
the
arrest
such
BUT
must
information
show
the
will imperil
same after the
the arrest.
arrest, if the
person
arrested
so
requires.

Even in instances not allowed by law, a


warrantless arrest is NOT a jurisdictional
defect, and objection thereto is waived
where the person arrested submits to
arraignment without objection (Remedial
Law, Vol. IV (CriminalProcedure), Florenz
Regalado citing 22 C.J.S. 420.)
Time of making an Arrest:
An arrest may be made on any day and at
any time of the day or night (Sec. 6).
A private person making an arrest should
notify the person arrested of his purpose
and acquaint him with the cause of the
arrest.
METHOD OF ARREST
(SECS. 7, 8 & 9)

Method of
Arrest
Arrest
by
officer
by
virtue of
a
warrant
(Sec. 7)

Exception to
the rule on
giving
information

The
officer a. when
the
shall inform
person to be
the person be
arrested
to
arrested
flees;
the cause of b. when
he
the arrest and
forcibly
the fact that
resists
the
warrant
before
the
has
been
officer has

Arrest
by
officer
without
a
warrant
(Sec. 8)

The
officer
shall inform
the person to
be arrested of
his authority
and the cause
of the arrest
w/out
a
warrant.

a. When
the
person to be
arrested is
engaged in
the
commission
of
an
offense or is
pursued
immediately
its
commission
;
b. when
he
has
escaped,
flees,
or
forcibly
resists
before
the
officer has
an
opportunity
to so inform
him; and
c. when
the
giving
of
such
information
will imperil
the arrest.

Arrest
by a
private
person
(Sec. 9)

The
private
person shall
inform
the
person to be
arrested
of
the intention
to arrest him
and
the cause of
the arrest.
NOTE: Private
person must
deliver
the
arrested
person to the
nearest police
station or jail,
otherwise, he
may be held
criminally
liable
for
illegal
detention.

a. when
the
person to be
arrested is
engaged in
the
commission
of
an
offense or is
pursued
immediately
its
commission
;
b. when
he
has
escaped,
flees,
or
forcibly
resists
before
the
officer has
an
opportunity
to so inform
him; and
c. when
the
giving
of
such
information
will imperil
the arrest.

In People v. Mahinay (G.R. No. 122485,


1February 1999), the SC laid down the
procedure,guidelines and duties which the
arresting,
detaining,
inviting,
or
investigating officer or his companions
must do and observe at the time of making
an arrest and again at and during the time
of
the
custodial
interrogation
in
accordance
with
the
Constitution,
jurisprudence and Republic Act No. 7438:
The person arrested, detained, invited or
under custodial investigation must be
informed in a language known to and
understood by him of the reason for the
arrest and he must be shown the warrant
of arrest, if any; Every other warnings,
information or communication must be in
a language known to and understood by
said person;
He must be warned that he has a right to
remain silent and that any statement he
makes may be used as evidence against
him;
He must be informed that he has the right
to be assisted at all times and have the
presence of an independent and competent
lawyer, preferably of his own choice;
He must be informed that if he has no
lawyer or cannot afford the services of a
lawyer, one will be provided for him; and
that a lawyer may also be engaged by any
person in his behalf, or may be appointed
by the court upon petition of the person
arrested or one acting in his behalf;
That whether or not the person arrested
has a lawyer, he must be informed that no
custodial investigation in any form shall be
conducted except in the presence of his
counsel or after a valid waiver has been
made;
The person arrested must be informed
that, at any time, he has the right to

communicate or confer by the most


expedient means - telephone, radio, letter or
messenger - with his lawyer (either retained
or appointed), any member of his immediate
family, or any medical doctor, priest or
minister chosen by him or by any one from
his immediate family or by his counsel, or be
visited by/confer with duly accredited
national or international non-government
organization. It shall be the responsibility of
the officer to ensure that this is
accomplished;
He must be informed that he has the right to
waive any of said rights provided it is made
voluntarily, knowingly and intelligently and
ensure that he understood the same;
In addition, if the person arrested waives his
right to a lawyer, he must be informed that it
must be done in writing AND in the presence
of counsel, otherwise, he must be warned
that the waiver is void even if he insist on his
waiver and chooses to speak;
That the person arrested must be informed
that he may indicate in any manner at any
time or stage of the process that he does not
wish to be questioned with warning that
once he makes such indication, the police
may not interrogate him if the same had not
yet commenced, or the interrogation must
ceased if it has already begun;
The person arrested must be informed that
his initial waiver of his right to remain silent,
the right to counsel or any of his rights does
not bar him from invoking it at any time
during the process, regardless of whether he
may have answered some questions or
volunteered some statements; and
He must also be informed that any
statement or evidence, as the case may be,
obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole
or in part, shall be inadmissible in evidence.

Any objection involving a warrant of arrest


or procedure in the acquisition by the
court of jurisdiction over the person of the
accused must be made before he enters his
plea, otherwise the objection is deemed
waived. A motion to quash should be filed.
Q: FG was arrested without a warrant by
policemen while he was walking in a busy
street. After preliminary investigation, he
was
charged
with
rape
and
the
corresponding information was filed in the
RTC. On arraignment, he pleaded not
guilty. Trial on the merits ensued. The
court rendered judgment convicting him.
On appeal, FG claims that the judgment is
void because he was illegally arrested. If
you were the Solicitor General, counsel
for the People of the Philippines, how
would you refute the said claim?(BAR
2000)
A: Any objection to the illegality of the
arrest of the accused without a warrant is
deemed waived when he pleaded not guilty
at the arraignment without raising the
question. T is too late to complain about
the warrantless arrest after trial is
commenced
and
completed
and
a
judgment of conviction rendered against
the accused. (People v. Cabiles 284 SCRA
199, 1999)
REQUISITES OF A VALID WARRANT OF
ARREST
1. It must be issued upon probable
cause which must be determined
personally by the judge after
examination
under
oath
or
affirmation of the complainant
and the witnesses he may
produce;
2. Determined personally by the
judge
after
evaluation
of
prosecutors
report
and
the
evidence adduced during the PI;

3. The warrant must particularly


describe the person to be arrested
in connection with a specific offense
or crime.
NOTE: The RTC judge need NOT
personallyexamine the complaint and
witnesses in the determination of probable
cause for the issuance of the warrant of
arrest. He is only required to personally
evaluate the report and the supporting
documents
submitted
during
the
preliminary investigation by the fiscal and
on the basis thereof he may dismiss, issue
warrant or require further affidavits.
A warrant of arrest has NO expiry date.It
remains valid until arrest is effected or
warrant is lifted (Manangan v. CFI, G.R. No.
82760, August30, 1990).
DETERMINATION OF PROBABLE CAUSE
FOR THE ISSUANCE OF WARRANT OF
ARREST
1. Upon filing of information, the RTC
may issue a warrant for the arrest
of the accused after conducting the
required proceedings (Sec.5(a),Rule
112 of the Rules of Court);
2. If the MTC Judge is satisfied after
examination of the complaint or
information and the witnesses in
the form of searching questions and
answers that a probable cause
exists and that there is a necessity
of placing the respondent under
immediate custody in order not to
frustrate the ends of justice, he
shall issue a warrant (Sec 5(b)
supra).
PROBABLE CAUSE
OF A JUDGE

POBABLE CAUSE
OF A FISCAL

PC for the issuance PC

to

fill

an

of warrant.

information
court

in

Judicial function

Executive function

BASIS:
evidence
must be sufficient
to
lead
to
a
conclusion
the
crime
has been
committed and that
the
accused
is
probably
guilty
thereof.

BASIS: reasonable
ground to believe
that a crime has
been committed.

The Supreme Court differentiated the


purpose of determination of probable
cause by the judge and by the prosecutor
in People v. Inting (G.R. No.88919, 25 July
1990): "The determination ofprobable
cause for (issuance of) the warrant of
arrest is made by the Judge. The
preliminary investigation proper-whether
or not there is reasonable ground to
believe that the accused is guilty of the
offense charged and, therefore, whether
or not he should be subjected to the
expense, rigors and embarrassment of
trialis thefunction of the Prosecutor."
Art. 125 of the RPC provides: "In every
case, theperson detained shall be informed
of the cause of his detention and shall be
allowed, upon his request, to communicate
and confer at any time with his attorney or
counsel." Such right to counsel during the
custodial investigation may, however, be
waived provided the waiver is made
intelligently and voluntarily, with full
understanding of the consequences (People
v.Caguioa, et al., L-38975, 17 Jan. 1980)
and suchwaiver is made with the
assistance of counsel (Morales, Jr., et al. v.
Ponce Enrile, et al., G.R. No.61016, 26 April
1983), which conditions are nowembodied
in the 1987 Constitution (Regalado).
A
custodial
examination
means
questioning initiated by law enforcement

authorities after a person is taken into


custody or otherwise deprived of his freedom
in any significant manner. It begins when
there is no longer a general inquiry into an
unsolved crime but starts to focus on a
particular person as a suspect(People v.
Morial, et al., G.R. No. 129295, 15August
2001).
RULE 114
BAIL
NATURE
It is the security given for the release of a
person in custody of the law, furnished by
him or a bondsman, to guarantee his
appearance before any court as required
under the conditions hereinafter specified
(Sec. 1).
As bail is intended to obtain the provisional
liberty of the accused, the same cannot be
posted before the custody of the accused has
been acquired by the judicial authorities
through his arrest or voluntary surrender
(Regalado citing cases).
Constitutional Basis
All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties,
or be released on recognizance as may be
provided by the law. The right to bail shall
not be impaired even when the privilege of
the writ of habeas corpus is suspended
(Sec.13, Art.III, 1987 Constitution).
Q: In what forms may bail be given?
A. Cash bond
It is the accused himself who pays.
If the accused does not appear when
required, the whole amount of the cash bond
will be forfeited in favor of the government
and the accused will now be arrested.

B. Bail bond / Corporate Surety


An obligation under seal given by the
accused with one or more sureties and
made payable to the proper officer with the
condition to be void upon performance by
the accused of such acts as he may be
legally required to perform.
The accused goes to an authorized
bonding company and he will pay a
premium for the service which is a
percentage of the total amount of bail. The
bonding company proceed to the court and
execute an undertaking, or "security bond"
in the amount of the bail bond in behalf of
the accused, that if the accused is needed,
the bonding company will bring him before
the court.
If the accused jumps bail, the bond will be
cancelled and the bonding company will be
given sufficient time to locate the
whereabouts of the accused who posted
bail but later on jumps bail. Notice to
bonding company is notice to the accused.
Notice is usually sent to the bonding
company in order to produce the body of
the accused.
C. Property bond
The title of the property will be used as
security for the provisional liberty of the
accused.
The person who undertakes the conditions
of a regular bond will be the custodian of
the accused during the time that he is
under provisional liberty.
D. Recognizance
An obligation of record, entered into before
some court or magistrate duly authorized
to take it with the condition to do some
particular act. It is an undertaking of a
disinterested person with high credibility
wherein he will execute an affidavit of
recognizance to the effect that when the

presence of the accused is required in court,


the custodian will bring him to that court.
This is allowed for light felonies only. If the
accused does not appear despite notice to
the custodian, or the person who executed
the recognizance does not produce the
accused, he may be cited for contempt of
court. This is the remedy because no money
is involved in recognizance.
A judge may not require as a condition for
the defendants admissions to bail that the
amount of the bail bond be posted in the
form of cash.
Q: Where should bail be filed?
A: It may be filed with the court where the
case is pending, or in the absence or
unavailability of the judge thereof, with any
RTC judge, MTC judge, or MCTC judge in
the province, city, or municipality. If the
accused is arrested in a province, city, or
municipality other than where the case is
pending, bail may also be filed with any RTC
of said place, or if no judge thereof is
available, with any MTC judge, MCTC
therein (Sec. 17).
NOTE: Where the grant of bail is a matter
ofdiscretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the case
is
pending,
whether
on
preliminary
investigation, trial, or on appeal. Any person
in custody who is not yet charged in court
may apply for bail with any court in the
province, city, or municipality where he is
held.
DistinguishCustodyoftheLawfrom
Jurisdiction Over the Person.
Custody of the law is required before the
court can act upon the application for bail,
but is not required for the adjudication of
other reliefs sought by the defendant where

the mere application therefore constitutes


a waiver of the defense of lack of
jurisdiction over the person of the accused.
Custody of the law is accomplished either
by arrest or voluntary surrender, while
jurisdiction over the person of the accused
is acquired upon his arrest or voluntary
appearance.
One can be under the custody of the law
but not yet subject to the jurisdiction of
the court over his person, such as when a
person arrested by virtue of a warrant files
a motion before arraignment to quash the
warrant. On the other hand, one can be
subject to the jurisdiction of the court over
his person, and yet not be in the custody of
the law, such as when an accused escapes
custody after his trial has commenced.
Custody of the law is literally custody over
the body of the accused. It includes, but is
not limited to, detention (Mirandav. Tuliao,
G.R. No. 158763, March 31, 2006).
The right to bail, only accrues when a
person is arrested or deprived of his
liberty. The right to bail presupposes that
the accused is under legal custody
(Feliciano v. Pasicolan, G.R. No. L14657,July 31, 1961, 2 SCRA 888).
An application for admission to bail of a
person against whom a criminal action
has been filed, but who is still at large is
premature(Guillermo vReyes, Adm. Matter
No. RTJ-93-1088. January 18, 1995).
It is a mistaken theory that there should
be an arraignment first before the trial
court can grant bail to ensure the
accused's presence thereat. The SC
explained this scenario in Lavides v. CA,
etal., (G.R. No. 129670, 1Feb. 2000):

In cases where it is authorized, bail


should
be
granted
before
arraignment,
otherwise
the
accused may be precluded from
filing a motion to quash. For if the

information is quashed and the case


is dismissed, there would then be no
need for the arraignment of the
accused.

The trial court could ensure the


presence
of petitioner at the
arraignment precisely by granting
bail and ordering his presence at any
stage of the proceedings, such as
arraignment. Under Rule 114, 2(b)
of the Rules on Criminal Procedure,
one of the conditions of bail is that
"the accused shall appear before the
proper court whenever so required by
the court or these Rules," while
under Rule 116, 1(b) the presence of
the accused at the arraignment is
required.
To condition the grant of bail to an
accused on his arraignment would be
to place him in a position where he
has to choose between filing a motion
to quash and thus delay his release
on bail because until his motion to
quash
can
be
resolved,
his
arraignment cannot be held, and (2)
foregoing the filing of a motion to
quash so that he can be arraigned at
once and thereafter be released on
bail.

A person deprived of his liberty by virtue of


his arrest or voluntary surrender may apply
for bail as soon as he is deprived of his
liberty, even before a complaint or
information is filed againsthim (Serapio v.
Sandiganbayan, et al., G.R. No.148468, 28
January 2003.)
The accused may file a motion to quash
during the pendency of his petition for bail
since they are not inconsistent in purpose
and may proceed independently of each
other. The right of an accused to seek
provisional liberty does not preclude his
right to assail the validity of the indictment

(Remedial
Law
FlorenzRegalado).

Compendium,

The right to bail flows from the


presumption of innocence in favor of every
accused who should not be subjected to
the loss of freedom as thereafter he would
be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt. Thereby,
a regime of liberty is honored in
observance and not in breach (Herrera
citing DeLa Camara v. Enage, L-32951-2,
17 Sept. 1971).
The Right to Bail in Extradition Cases
If bail can be granted in deportation cases,
it can also be granted in extradition cases.
Likewise, considering that the Universal
Declaration of Human Rights applies to
deportation cases, there is no reason why
it cannot be invoked in extradition cases.
After
all,
both
are
administrative
proceedings where the innocence or guilt
of the person detained is not in issue.
Clearly, the right of a prospective
extraditee to apply for bail in this
jurisdiction must be viewed in the light of
the various treaty obligations of the
Philippines concerning respect for the
promotion and protection of human rights.
Under these treaties, the presumption lies
in favor of human liberty. Thus, the
Philippines should see to it that the right
to liberty of every individual is not
impaired
(Government
of
Hongkong
SpecialAdministrative Region v. Olalia, G.R.
No. 153675, 19 April 2007).
The potential extradite must prove by
clear andconvincing evidence that he is
not a flight riskand will abide with all the
orders and processes of the extradition
court.
In deportation proceedings, grant of bail is
wholly
discretionary.
It
is
the
Commissioner
of
Immigration
who
exercises
absolute
discretion
in
determining whether or not an alien may

be released during deportation proceedings


(p. 442,Remedial Law Book IV, Herrera.)
CONDITIONS OF THE BAIL;
REQUIREMENTS
(SEC. 2)
All kinds of bail are subject to the following
conditions:

The undertaking shall be effective


upon approval, and unless cancelled,
shall remain in force at all stages of
the case until promulgation of the
judgment of the Regional Trial Court,
irrespective of whether the case was
originally filed in or appealed to it;
The accused shall appear before the
proper court whenever required by
the court or these Rules;
The failure of the accused to appear
at the trial without justification and
despite due notice shall be deemed a
waiver of his right to be present
thereat. In such case, the trial may
proceed in absentia; and
The bondsman shall surrender the
accused to the court for execution of
the final judgment.

Under the amendment in par. (a), whether


the bail was granted by a lower court or the
RTC, and unless sooner cancelled, such bail
shall be effective only until promulgation of
the judgment of the RTC where it was
originally filed or to which it was appealed.
The admission of the accused to bail
thereafter shall be governed by Sec. 5 of this
Rule. This policy change, as effected by Secs.
2, 4 and 5 of this Rule, is more in accord
with the provisions of Sec. 13, Art. III of the
1987
Constitution
(Remedial
Law
Compendium, FlorenzRegalado.)

Par. (c) means that the "due notice"


required forthe appearance of the accused
at the trial may be sent either to him or his
bondsman. Par. (d) has been amended to
impose that duty upon the bondsman to
arrange or effect the surrender of the
accused
to
the
proper
authorities
(RemedialLaw
Compendium,
Florenz
Regalado).
NO RELEASE OR TRANSFER EXCEPT
ONCOURT ORDER OR BAIL
(SEC. 3)
No person under detention by legal process
shall be released or transferred except
upon order of the court or when he is
admitted to bail.
WHEN IS BAIL A MATTER OF RIGHT;
EXCEPTIONS
(SEC. 4)
General Rule:
All persons in custody shall be admitted to
bail as a matter of right, with sufficient
sureties, or released on recognizance as
prescribed by law or this Rule:
before or after conviction by the
first level courts (MeTC, MTC,
MTCC, OR MCTC), and
before conviction by the RTC of an
offenseNOT punishable by death,
reclusionperpetua,
or
life
imprisonment.
Exception:
When the offense is punishable by death,
reclusion perpetua, or life imprisonment
AND the evidence of guilt is strong
The duration of reclusion perpetua shall be
from 20 years and 1 day to 40 years (Art.
27, RPC, asamended by R.A. 7659).

NOTE: Remember the amendment of B.P.


Blg.129 by Sec. 2, R.A. 7691, resulting in
the expansion of the jurisdiction of the lower
courts in criminal cases (See criminal
jurisdiction of the lower courts). Under Sec.
2 of this Rule, the offenses which fall within
the exclusive jurisdiction of said lower
courts, including those punished by special
laws or the RPC with penalties NOT
exceeding 6 years imprisonment or prision
correccional, are now bailable as a matterof
right. Excepted therefrom are offenses
which, even if punishable by imprisonment
not exceeding 6 years, are nonetheless
excluded from the jurisdiction of the lower
courts (such as libel which is within the
exclusive jurisdiction of the RTC and in
cases of direct bribery, indirect bribery and
corruption of public official which are within
the
exclusive
jurisdiction
of
the
Sandiganbayan)
(Remedial
Law
Compendium, Florenz Regalado).
Bail is a matter of right, whether charged or
not charged. It is NOT necessary that a
person should wait until a formal complaint
or information is filed against him. From the
moment he is placed under arrest, detention
or restraint by the officers of the law, he can
claim the guarantee of the Bill of Rights to
Bail, and this right retains unless and until
he is charged with a capital offense and
evidence of his guilt is strong (Herrera citing
Teehankee v. Rovira, G.R. No. L-101,
December 20, 1945, 75 Phil. 634).
Q: When is bail a matter of right and
when is it a matter of discretion?(BAR
2006)
A: Bail is a matter of right (a) before or after
conviction by the inferior courts; (b) before
conviction by the RTC of an offense not
punishable by death, reclusion perpetua or
life imprisonment, when the evidence of guilt
is not strong (Sec. 4, Rule 114, 2000 Rules of
Criminal Procedure).

Bail is discretionary: Upon conviction by


the RTC of an offense not punishable by
death,
reclusion
perpetua
or
life
imprisonment (Sec. 5, Rule 114, 2000
Rules of Criminal Procedure).
WHEN IS BAIL A MATTER OF
DISCRETION
(SEC. 5)
Upon conviction by the RTC of an offense
not punishable by death, reclusion
perpetua or life imprisonment.
If the penalty imposed by the trial court is
imprisonment exceeding 6 years (but not
more than 20 years), and NOT one of the
following or other similar circumstances is
present:
1. That he is a recidivist, quasirecidivist, or habitual delinquent,
or
has
committed
a
crime
aggravated by the circumstance of
reiteration;
2. That he has previously escaped
from legal confinement, evaded
sentence, or violated the conditions
of
his
bail
without
valid
justification;
3. That he committed the offense
while under probation, parole, or
conditional pardon;
4. That the circumstances of his case
indicate the probability of flight if
released on bail; or
5. That there is undue risk that he
may commit another crime during
the pendency of the appeal.
If the penalty imposed by the trial court is
imprisonment exceeding 6 years (but not
more than 20 years), the accused shall be
denied bail, OR his bail shall be cancelled

upon a showing by the prosecution, with


notice to the accused, and ANY of the
aforementioned or similar circumstances is
present.

changed the nature of the offense from


non-bailable to bailable, the application for
bail can only be filed with and resolved by
the appellate court. (Sec. 5)

Regardless of the stage of the criminal


prosecution, a person charged with a capital
offense, or an offense punishable by
reclusion perpetua or life imprisonment,
when evidence of guilt is not strong (Sec. 7.)

The appellate courts may, motu proprio or


on motion of any party, review the
resolution of the Regional Trial Court after
notice to the adverse party in either case.

After conviction, an accused who is charged


with capital offense or punishable by
reclusion perpetua or life imprisonment
shall no longer be entitled to bail as a matter
of right even if he appeals as evidence of
guilt is strong (People v.Divina, G.R. No.
93808-09, April 7, 1993.)
Where the accused was under bail before
judgment of death sentence was rendered
against him, upon the granting of the motion
for new trial, he should be accorded of his
original status of being out on bail (People v.
Bocar, G.R.No. L-9050, July 30, 1955 97 Phil.
398.)
The right to bail is not, however, recognized
and is not available in the military as an
exception to the general rule embodied in
the bill of rights (Comendador v. de Villa,
G.R. NO. 93177, 2 AUG 1991] 200 SCRA 80.)
When bail is discretionary, the remedy of the
accused is to file a petition for bail.
Once a petition for bail is filed, the court is
mandated to set a hearing. The purpose of
thehearing is to give opportunity to the
prosecution to prove that the evidence of
guilt is strong. If strong, bail will be denied.
If weak, the bail will be granted. The
application for bail may be filed and acted
upon by the trial court despite the filing of a
notice of appeal, provided it has not
transmitted the original record to the
appellate court. However, if the decision of
the trial court convicting the accused

Under this revised section, it may now


allow him to continue on provisional
liberty during thependency of the appeal
under the same bail bondposted by him
during the trial stage, provided his
bondsman or surety consents thereto.
Otherwise, the accused-appellant should
post another bail bond if he desires to be
on provisional liberty. In any event, for
purposes of the appeal itself and during
the pendency thereof, the conditions of the
bail should be deemed modified since the
conditions of the bail on appeal and during
the trial are different (Remedial Law
Compendium,Florenz Regalado).
No person charged with a capital offense,
or an offense punishable by reclusion
perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is
strong, regardless of the stageof the
criminal prosecution (Sec. 7.)
A capital offense is an offense which,
under the law existing at the time of its
commission and of the application for
admission to bail, may be punished with
death (Sec. 6).
The capital nature of the offense is
determined by the penalty prescribed
(imposable) by law, NOT the penalty which
may actually be imposed.
Bail may be granted only after a motion for
that purpose has been filed by the accused
and a hearing thereon conducted by the
judge to determine whether or not the

prosecution's evidence of guilt is strong. The


court should not include in the order of
arrest the amount of bail without an
application for bail and a hearing after
reasonable notice of the hearing to the
prosecution with full opportunity to present
evidence.
Where an application for bail was properly
denied by reason of prematurity since the
accused had yet to be arrested or to
voluntarily appear in court, after the
voluntary appearance of the accused, the
judge may not subsequently consider and
affirmatively act thereon but should instead
require the accused as a matter of course, to
file another motion for bail and set the same
for hearing, with the prosecution duly
notified thereof (Herrera).
In sum, the requirements for bail are the
following:
1. There must be an application or
motion for bail;
2. There must be a reasonable notice of
the hearing to the prosecution; and
3. There must be a hearing for such
application or motion.
While the rule is that only the Solicitor
General may represent the People in
criminal proceedings in the appellate courts,
the offended party in a criminal case has
sufficient interest and personality to file the
special civil actions of prohibition and
certiorari under Rule 65, as an aggrieved
private petitioner, to challenge the order of
the trial court granting bail to the alleged
murderers
of
his
father
(Remedial
LawCompendium, Florenz Regalado citing
People v. Calo, Jr., et al., G.R. No. 88531, 18
June 1990).
HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES

Capital offense is an offense which under


the lawexisting at the time of its
commission and of the application for bail,
is punishable by death.
Capital offense not bailable
The capital nature of the offense is
determined by the penalty prescribed by
law not the penalty which may actually be
imposed since the latter requires a
consideration of the evidence at the trial.
Capital offenses or those punishable by
reclusion perpetua, life imprisonment or
death are not bailable when evidence of
guilt is strong.
A hearing, MANDATORY in nature and
which
should
be
SUMMARY
OR
OTHERWISE in the discretion of the court
is required with the participation of both
the
defense
and
a
duly
notified
representative of the prosecution, this time
to ascertain whether or not the evidence of
guilt is strong for the provisional liberty of
the applicant. The burden of proof is on
the prosecution to show that the evidence
meets the required quantum.(Sec. 8)
Sec. 8 provides that: At the hearing of an
application for bail filed by a person who is
in custody for the commission of an
offense punishable by death, reclusion
perpetua, or life imprisonment, the
prosecution has the burden of showing
that evidence of guilt is strong. The
evidence presented during the bail hearing
shall
be
considered
automatically
reproduced at the trial but, upon motion of
either party, the court may recall any
witness for additional examination unless
the latter is dead, outside the Philippines,
or otherwise unable to testify.
In a summary hearing conducted for the
purpose of determining whether the
evidence of guilt is strong for purposes of

bail, what the court does is to determine the


WEIGHT OF EVIDENCE, not the guilt or
innocence of the accused. On such hearing,
the court does not sit to try the merits or to
enter into any inquiry as to the weight that
ought to be allowed to the evidence for or
against the accused, nor will it speculate on
the outcome of the trial or on what further
evidence may be therein offered and
admitted (8 C. J. S.,93,94.).
Where such a hearing is set upon proper
motion or petition, the prosecution must be
given an opportunity to present, within a
reasonable time, all the evidence that it may
want to introduce before the court may
resolve the application, since it is equally
entitled as the accused to due process.
At the hearing, the petitioner (accused) can
rightfully cross-examine the witnesses
presented by the prosecution and introduce
his own evidence in rebuttal. When,
eventually, the court issues an order either
granting or refusing bail, the same should
contain a summary of the evidence for the
prosecution, followed by its conclusion as to
whether or not the evidence ofguilt is strong.
The court, though, cannot rely on mere
affidavits or recitals of their contents, if
timely objected to, for these represent only
hearsay evidence, and thus are insufficient
to establish the quantum of evidence that
the law requires (Remedial Law, Oscar
Herrera citingcases).
The trend of jurisprudence is for the court to
proceed with the hearing despite the
absence of evidence by the prosecution. If
the prosecution refuses to adduce evidence
or fails to interpose an objection to the
motion for bail, it is still mandatory for the
court to conduct a hearing or ask searching
and clarificatory questions from which it
may infer the strength of the evidence of
guilt, or the lack of it, against the accused.
For even the failure of the prosecution to
interpose an objection to the grant of bail to

the accused will not justify such grant


without hearing (Remedial Law, Vol. IV,
Oscar Herrera citing cases).
The Court reiterated in Basco v. Judge
Rapatalo(A.M. No. RTJ-96-1335, March 5,
1997) the dutiesof the trial judge in case
an application for bail is filed:

Notify the prosecutor of the hearing


of the application for bail or require
him to submit his recommendation
(Section 18, Rule 114 of the Rules of
Court as amended);

Conduct
a
hearing
of
the
application for bail regardless of
whether or not the prosecution
refuses to present evidence to show
that the guilt of the accused is
strong for the purpose of enabling
the court to exercise its sound
discretion (Sections 7 and8, supra);
Decide whether the evidence of
guilt of the accused is strong based
on the summary of evidence of the
prosecution (Baylon v. Sison A.M.
No. 92-7-360-0,April 6, 1995);

If the guilt of the accused is not


strong, discharge the accused upon
the approval of the bailbond.
(Section 19, supra). Otherwise,
petition should be denied.

Q: D was charged with murder, a capital


offense. After arraignment, he applied for
bail.
The
trial court ordered the
prosecution to present its evidence in full
on the ground that only on the basis
of such presentation could it determine
whether the evidence of Ds guilt was
strong for purposes of bail. Is the ruling
correct? Why?(BAR 2002)
A: No, the prosecution is only required to
present as much evidence as is necessary

to determine whether the evidence of Ds


guilt is strong for purposes of bail.(Rule 114,
sec. 8)
GUIDELINES IN FIXING AMOUNT OF BAIL
(SEC. 9)
Factors to be considered in fixing the
reasonable amount of bail
a. Financial ability of the accused to
give bail
b. Nature and circumstances of the
offense
c. Penalty of the offense charged
d. Character and reputation of the
accused
e. Age and health of the accused
f. Weight of evidence of the accused
g. Probability of the accused to appear
in trial
h. Forfeiture of other bail
i. The fact that the accused was a
fugitive from justice when arrested
j. Pendency of other cases when the
accused is on bail.
This section is based on the constitutional
principle that excessive bail shall not be
required (Sec. 13, Art. III, 1987 Constitution)
and on previous doctrines laid down by the
SC.

If the maximum penalty to which the


accused may be sentenced is destierro, he
shall be released after thirty (30) days of
preventive imprisonment.
When a person in custody for a period
equal to or more than the minimum of the
principal penalty prescribedfor the offense
charged,without
application
of
the
Indeterminate Sentence Law or any
modifying circumstance, shall be released
on a reduced bail or on his own
recognizance, at the discretion of the
court.
When a person is charged with violation of
a municipal or city ordinance, a light
felony and/or a criminal offense the
prescribed penalty for which is NOT higher
than six months imprisonment and/or a
fine of two thousand pesos, or both, where
said person has established to the
satisfaction of the court or any other
appropriate authority hearing his case
that he is unable to post the required cash
or bail bond, except in thefollowing cases:
When he is caught committing
the offense in flagrante;

When he confesses to the


commission of the offense
unless the confession is later
repudiated by him in a sworn
statement or in open court as
having been extracted through
force or intimidation;

When he is found to have


previously escaped from legal
confinement, evaded sentence,
or jumped bail;

When he is found to have


previously
violated
the
provisions of Sec. 2 hereof;

WHEN BAIL IS NOT REQUIRED


(SEC. 16)
No bail shall be required when the law or
these Rules so provide.
When a person has been in custody for a
period equal to or more than the possible
maximum
imprisonment
prescribedfor
theoffense charged, he shall be released
immediately, without prejudice to the
continuation of the trial or the proceedings
on appeal.

When he is found to be a
recidivist or a habitual delinquent
or has been previously convicted
for an offense to which the law or
ordinance attaches an equal or
greater penalty or for two or more
offenses to which it attaches a
lighter penalty;

When he commits the offense


while on parole or under
conditional pardon; and

When the accused has previously


been pardoned by the municipal
or city mayor for violation of
municipal or city ordinance for at
least two times (R.A.6036).

INCREASE OR REDUCTION OF BAIL


(SEC. 20)
After the accused is admitted to bail, the
court may, upon good cause, either increase
or reduce its amount. When increased, the
accused may be committed to custody if he
does not give bail in the increased amount
within a reasonable period.
An accused held to answer a criminal
charge, who is released without bail upon
filing of the complaint or information, may,
at any subsequent stage of the proceedings
and whenever a strong showing of guilt
appears to the court, be required to give bail
in the amount fixed, or in lieu thereof,
committed to custody.
Where the offense is bailable as a matter of
right, the mere probability that the accused
will escape, or even if he had previously
escaped while under detention, does NOT
deprive him of his right to bail. The remedy
is to increase the amount of bail, provided
such amount would not be excessive
(Regalado citing Sy Guan v. Amparo, 79Phil.
670).

FORFEITURE OF BAIL
(SEC. 21)
If the accused fails to appear in person as
required, his bail shall be declared forfeited
and the bondsmen given thirty (30) days
within which to produce their principal
and to show cause why no judgment
should be rendered against them for the
amount of their bail. Within the said
period, the bondsmen must:

produce the body of their principal or


givethe reason for his non-production;
and

explain why the accused did not


appearbefore the court when first
required to do so.

Failing in these two requisites, a judgment


shall be rendered against the bondsmen,
jointly and severally, for the amount of the
bail. The court shall not reduce or
otherwise mitigate the liability of the
bondsmen, unless the accused has been
surrendered or is acquitted.
Mere notification is NOT sufficient, the
bondsman must make every effort to see
that the accused makes his appearance.
Such order of forfeiture is provisional in
nature and NOT appealable.
When the judgment becomes executory,
the remedy of the surety is to appeal from
the order directing the execution of the
judgment
of
forfeiture
within
the
reglamentary 15-day period (Remedial Law
Compendium, Florenz Regalado).
While under the Constitution trial in
absentia may be held, where the accused
jumps bail the court must nevertheless

proceed with the confiscation and forfeiture


of the bail bond.

Ins., Co., Inc., et al. v. People, et al., L47309, 30 Jan. 1982).

Where the accused jumps bail (after being


arraigned), the trial shall continue and the
bondsman held to their undertaking as
sureties.

Aside from the instances stated in this


section, the surety, upon application with
the court, may also be relieved from
liability on the bond where its performance
is rendered by the act of God, the act of
the obligee (the Government) or the act of
the law. The obligee cannot by its own acts
prevent the fulfillment of the conditions of
the bond and at the same time demand its
forfeiture (Remedial Law Compendium,
Florenz Regalado citing cases).

CANCELLATION OF BAIL
(SEC. 22)
Cancellation of Bail bond
a. Upon application of the bondsmen,
with due notice to the prosecutor,
upon surrender of the accused or
proof of his death;
b. Upon proof that the accused died
c. Automatically cancelled upon the
acquittal of the accused, dismissal of
the case or execution of judgment of
conviction.
Cancellation of the bond does not itself
relieve the bondmen of their liability thereon
incurred prior to their discharge.
In all instances, the cancellation shall be
without prejudice to any liability on the bail.
The acquittal or the death of the accused
results in the discharge of the sureties only
if the conditions of the bond have not
theretofore been breached.
Where, before the expiration of the 30-day
period for the production of the accused by
the sureties, the trial court rendered
judgment acquitting said accused, the
sureties are relieved of the duty to produce
the body of the accused and to show cause
why judgment should not be rendered on the
bond. Since the judgment is of acquittal, the
reason for the confiscation of the bond no
longer exists. Furthermore, since a judgment
of acquittal is final immediately after its
promulgation, the trial court had no more
jurisdiction over the case and the person of
the accused (Regalado citing Belfast Surety &

ARREST OF ACCUSED OUT ON BAIL


(SEC. 23)
For the purpose of surrendering the
accused, the bondsmen may arrest him or,
upon written authority endorsed on a
certified copy of the undertaking, cause
him to be arrested by a police officer or any
other person of suitable age and discretion.
An accused released on bail may be rearrested without the necessity of a warrant
if he attempts to depart from the
Philippines without permission of the
court where the case is pending.
NO BAIL AFTER FINAL JUDGMENT;
EXCEPTION
(SEC. 24)
No bail shall be allowed after a judgment of
conviction has become final. If before such
finality, the accused applies for probation,
he may be allowed temporary liberty under
his bail. When no bail was filed or the
accused is incapable of filing one, the
court
may
allow
his
release
on
recognizance to the custody of a
responsible member of the community. In
no case shall bail be allowed after the
accused
has
commenced
to
serve
sentence.

APPLICATION NOT A BAR TO


OBJECTIONS IN ILLEGAL ARREST, LACK
OF IRREGULARPRELIMINARY
INVESTIGATION
(SEC. 26)
An application for or admission to bail shall
not bar the accused from challenging the
validity of his arrest or the legality of the
warrant issued therefore, or from assailing
the regularity or absence of a preliminary
investigation of the charge against him,
provided that he raises them before entering
his plea. The court shall resolve the matter
as early as possible, not later than the start
of the trial on the case (Sec. 26).
HOLD DEPARTURE ORDER AND BUREAU
OF IMMIGRATION WATCHLIST
Hold departure Order
The Secretary of Justice may issue an HDO,
under any of the following instances:
a. Against the accused, irrespective of
nationality, in criminal cases falling
within the jurisdiction of courts
below the Regional Trial Courts
(RTCs).
If the case against the accused is
pending trial, the application under
oath of an interested party must be
supported by (a) a certified true copy
of the complaint or information and
(b) a Certification from the Clerk of
Court concerned that criminal case
is still pending.
b. Against the alien whose presence is
required either as a defendant,
respondent, or witness in a civil or
labor case pending litigation, or any
case before an administrative agency
of the government.

c. The application under oath of an


interested party must be supported
by:
1. a certified true copy of the
subpoena or summons issued
against the alien and
2. a certified true copy complaint
in civil, labor or administrative
case where the presence of the
alien is required.
The Secretary of Justice may likewise issue
an HDO against any person, either motu
proprio, or upon the request bythe Head of
a Department of the Government; the head
of a constitutional body or commission; the
Chief Justice of the Supreme Court for the
Judiciary; the Senate President or the
House Speaker for the Legislature, when
the adverse party is the Government or
any of its agencies or instrumentalities, or
in the interest of national security, public
safety or public health (Department of
Justice CircularNo.41).
WATCHLIST ORDER
The Secretary of Justice may issue a WLO,
under any of the following instances:
a. Against the accused, irrespective of
nationality, in criminal cases
pending trial before the Regional
Trial Court.
The application under oath of an
interested party must be supported
by:
1. certified true copy of an
Information filed with the
court,
2. a certified true copy of the
Prosecutor's Resolution; and
3. a Certification from the
Clerk of Court concerned
that criminal case is still
pending.

2. Alias/es, if any;
b. Against the respondent, irrespective
of nationality, in criminal cases
pending preliminary investigation,
petition for review, or motion for
reconsideration
before
the
Department of Justice or any of its
provincial or city prosecution offices.
The application under oath of an
interested party must be supported
by:
1. certified true copy of the
complaint filed, and
2. a
Certification
from
the
appropriate prosecution office
concerned that the case is
pending
preliminary
investigation,
petition
for
review,
or
motion
for
reconsideration, as the case
may be.
The Secretary of Justice may likewise issue a
WLO against any person, either motu
proprio, or upon the request of any
government agency, including commissions,
task forces or similar entities created by the
Office of the President, pursuant to the
"Anti-Trafficking in Persons Act of 2003"
(R.A.No. 9208) and/or in connection with
anyinvestigation being conducted by it, or in
the interest of national security, public safety
or public health.
COMPLETENESS OF INFORMATION
To ensure the proper identification of the
subject of the HDO/WLO and to avoid
inconvenience to any innocent party, all
applications or requests, including the
HDO/WLO to be issued, shall contain the
following information of the subject:
1. Complete name, i.e. given name,
middle name or initial and surname;

3. Date and place of birth;


4. Place of last residence;
5. Passport details, if available;
6. Recent photograph, if available;
7. Complete title and docket number of
the case; and
8. Specific nature of the case.
HDO/WLO Validity. - The validity period of
anyHDO/WLO 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
other hand, the WLO shall be valid for
sixty (60) days unless sooner terminated or
extended, for a non-extendible period of
not more than sixty (60) days.
RULE 115
RIGHTS OF THE ACCUSED
Note: The rule enumerates the rights of a
personaccused of an offense which are
both constitutional as well as statutory,
save the right to appeal, which is purely
statutory in character.
Elements of criminal due process
1. Accused must have heard in a
court of competent jurisdiction.
2. Accused is proceeded against under
the orderly processes of law.
3. He has been given notice and
opportunity to be heard.
4. The judgment was awarded within
constitutional limitations.
Rights of the Accused; Two-types
1. Rights
during
custodial
investigation
2. Rights during trial
RIGHTS OF THE ACCUSED UNDER

CUSTODIAL INVESTIGATION
CUSTODIAL INVESTIGATION
The questioning by law enforcement officers
of a 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 person who is
investigated in connection with an offense he
is suspected to have committed. (R.A. 7438)

Right to remain silent


Right to counsel
Right to be informed of the charges
lodged against him.
Right to quash evidence obtained in
violation of those above.

Rights of Persons Arrested, Detained


or Under Custodial Investigation (RA
7438) (Sec. 2)
Any person arrested detained or under
custodial investigation shall at all times be
assisted by counsel.
To be informed, in a language known and
understood by him, of his rights to remain
silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation.
Any public officer or employee, or anyone
acting under his order or his place, who
arrests, detains or investigates any person
for the commission of an offense shall inform
the latter, in a language known to and
understood by him, of his rights to remain
silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation. If
such person cannot afford the services of his
own counsel, he must be provided with a

competent and independent counsel by the


investigating officer.
The custodial investigation report shall be
reduced to writing by the investigating
officer, provided that before such report is
signed, or thumbmarked if the person
arrested or detained does not know how to
read and write, it shall be read and
adequately explained to him by his counsel
or by the assisting counsel provided by the
investigating officer in the language or
dialect known to such arrested or detained
person, otherwise, such investigation
report shall be null and void and of no
effect whatsoever.
Any extrajudicial confession made by a
person arrested, detained or under
custodial investigation shall be in writing
and signed by such person in the presence
of his counsel or in the latter's absence,
upon a valid waiver, and in the presence of
any of the parents, elder brothers and
sisters, his spouse, the municipal mayor,
the municipal judge, district school
supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such
extrajudicial
confession
shall
be
inadmissible
as
evidence
in
any
proceeding.
Any waiver by a person arrested or
detained under the provisions of Article
125 of the Revised Penal Code, or under
custodial investigation, shall be in writing
and signed by such person in the presence
of his counsel; otherwise the waiver shall
be null and void and of no effect.
Any person arrested or detained or under
custodial investigation shall be allowed
visits by or conferences with any member
of his immediate family, or any medical
doctor or priest or religious minister
chosen by him or by any member of his
immediate family or by his counsel, or by
any
national
non-governmental

organization
duly
accredited
by
the
Commission on Human Rights of by any
international non-governmental organization
duly accredited by the Office of the
President. The person's "immediate family"
shall include his or her spouse, fiance or
fiancee, parent or child, brother or sister,
grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
As used in this Act, "custodial investigation"
shall include the practice of issuing an
"invitation" to a person who is investigated in
connection with an offense he is suspected
to have committed, without prejudice to the
liability of the "inviting" officer for any
violation of law.
RIGHTS OF THE ACCUSED DURING
TRIAL
(SEC. 1)
The rights in this Rule Are
during trial of his criminal
essentially taken from the
incorporated as Art. III
Constitution.

available only
case and are
Bill of Rights
of the 1987

1. To be presumed innocent until the


contrary is proved beyond reasonable
doubt;
2. To be informed of the Nature and
Cause of the Accusation Against him;
3. To be present and defend in person
and by counsel at every stage of the
proceeding;
4. To testify as a witness in his own
behalf
but
subject
to
crossexamination on matters covered by
direct examination;
5. To exempt from being compelled to be
a witness against himself (against
self-incrimination);

6. To confront and cross-examine the


witnesses against him at the trial;
7. To have compulsory process issued
to secure the attendance of
witnesses and production of other
evidence in his behalf;
8. To have speedy, impartial and
public trial;
9. To appeal on all cases allowed by
law and in the manner prescribed
by law
TO BE PRESUMED INNOCENT
The right means that the presumption
must be overcome by evidence of guilt
beyond reasonable doubt. Guilt beyond
reasonable doubt means that there is a
moral certainty as to the guilt of the
accused. Conviction should be based on
the strength of the prosecution and not on
the weakness of the defense. The
significance of this is that accusation is
not synonymous with guilt.
Exception to the Presumption of
Innocence:
a. In cases of self-defense, the person
invoking self defense is presumed
guilty. In this case, a reverse trial
will be held.
b. The Legislature may enact that
when certain facts have been
proved, they shall be primafacie
evidence of the existence of guilt of
theaccused and shift the burden of
proof provided there be a rational
connection between the facts
proved and the ultimate fact
presumed so that the inference of
the one from proof of the other is
not an unreasonable and arbitrary

experience (People v. Mingoa L-5371


March 26, 1953)
Examples:
Unexpected flight of the accused

Failure to explain possession of


stolen property

Failure to account funds and


property of a public officer
entrusted to him

Reverse trial: This happens if the accused


admitsthe killing but claims self-defense. He
must first establish the elements of selfdefense
in
order
to
overturn
the
[presumption that he was guilty of the
offense.
REASONABLE DOUBT
That doubt engendered by an investigation of
the whole proof and an inability after such
investigation to let the mind rest easy upon
the certainty of the guilt.
Note: Absolute certainty of guilt is not
demandedby the law to convict of any
criminal charge but moral certainty is
required, and this certainty is required as to
every proposition of proof requisite to
constitute the offense (People of the
Philippines v. Dramayo, G.R. No. L-21325,
October 29, 1971)
Ratio: The slightest possibility of an
innocent manbeing convicted for an offense
ha has not committed would be far more
dreadful than letting a guilty person go
unpunished for a crime he may have
perpetrated (People of the Philippines v.
Lagmay, G.R. No. 125310, April 21, 1999)
Equipoise Rule
Where the evidence of the parties in a
criminal case is evenly balances, the

constitutional presumption of innocence


should tilt in favor of the accused and he
must be acquitted.
TO BE INFORMED OF THE NATURE
AND THE CAUSE OF THE ACCUSATION
AGAINST HIM
The right requires that the information
should state the facts and circumstances
constituting the crime charged in such a
way
that
a
person
of
common
understanding may easily comprehend and
be informed of what it is about.
Hornbook Doctrine
An accused cannot be convicted of an
offense unless it is clearly charged in the
compliant or information.
Exception:
Information which lacks certainessential
allegations may still sustain conviction
when the accused fails to object to its
sufficiency during trial and the deficiency
was
cured
by
competent
evidence
presented therein. (Peopleof the Philippines
v. Palarca, G.R. No. 146020, May 29, 2002;
People of the Philippines v. Orbita, G.R. No.
136591, July 11, 2002). This isconsidered
a waiver of his constitutional right.
Means of informing the accused of the
charge:
1. Preliminary investigation.
2. Requirement
of
sufficient
allegations in the complaint or
information.
3. Arraignment.
4. Bill of particulars
5. Rules against duplicity of offense
AN ACCUSED CANNOT BE CONVICTED
OF AN OFFENSE UNLESS CLEARLY

CHARGED IN THE COMPLAINT OR


INFORMATION
When a person is charged in a complaint
with a crime and the evidence does not show
that he is guilty thereof but shows that he is
guilty of some other crime or a lesser
offense, the court may sentence him for the
lesser offense. Provided that the lesser
offense is a cognate offense and is included
in the complaint filed in court.
The qualifying or aggravating circumstances
must be alleged and proved in order to be
considered by the court.
The description not the designation of the
offense is controlling. In case of error in the
designation, accused may be validly
convicted of the offense described.
In capital offenses, when there is a
discrepancy between the designation of the
crime in the preamble to the information
and the facts pleaded in the body, the court
shall notify the accused so that he may be
fully apprised of the nature and cause of the
accusation against him.
The rule that the accused cannot be
convicted of an offense not charged or
included in the information is based on this
right.
This constitutional right requires, inter alia,
that the indictment must fully state the
elements of the specific offense charged.
TO BE PRESENT AND BE DEFENDED IN
PERSON AND BY COUNSEL AT EVERY
STAGE OF THE PROCEEDING
General rule:
Presence of the accused during the criminal
action is not required and shall be based on
his sole discretion.

Exception:
The
presenceof the accused is
required only:
a. During arraignment (Sec. 1b, Rule
116)
b. Promulgation of judgment except in
cases involving light offenses which
may be pronounced in the presence
of the counsel or representative.
c. When ordered by the court for
purposes of identification.
d. When the court with due notice
requires.
Not applicable in SC and CA
The law securing to an accused person the
right to be present at every stage of the
proceedings has no application to the
proceedings neither before the Court of
Appeals and the 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)
Accused may waive his right to be present
during the trial. HOWEVER, his presence
may be compelled when he is to be
identified.
(Aquino,
Jr.v.
Military
Commission, G.R. No. L-37364, May 9,
1975)
Requirements of Waiver
1. Existence of a right
2. Knowledge of existence thereof
3. Intention to relinquish which must be
shown clearly and convincingly
4. Where the Constitution or law
provides, it must be with the
assistance of counsel to be valid.
Effects of waiver of the right to appear
by the accused

a. Waiver of the right to present


evidence
and
cross-examine
witnesses.
b. Prosecution can present evidence if
accused fails to appear.
c. The court can decide without the
evidence of the accused.
TRIAL IN ABSENTIA
It is important to state that the provision of
the Constitution authorizing the trial in
absentia of the accused in case of his nonappearance after arraignment despite due
notice simply means that he thereby waives
his right to meet the witnesses face to face
among others.
Such waiver of a right of the accused does
not mean a release of the accused from his
obligation under the bond to appear in court
whenever so required. The accused may
waive his right but not his duty of obligation
to the court.
Requisites for trial in absentia
1. The accused has been arraigned.
2. He has been notified of the trial.
3. His failure to appear is unjustified.
An escapee whoa has been duly tried in
absentia waives his right to present evidence
on his own behalf and to confront and crossexamine witnesses who testified against him
(Gimenez v. Nazareno, G.R. No. L-37933,
April 15, 1988)
Purpose of trial in Absentia
To speed up the disposition of criminal
cases, the trial of which could in the past be
indefinitely deferred and many times
completely abandoned because of the
defendants escape.

The defendant need not be present in


court during the hearing of the appeal.
The lawsecuring the right of the accused to
be present in every proceeding has no
application in the Supreme Court and the
Court of Appeals.
The accused may waive his right to be
present during the trial. However, his
presence may be compelled by the court.
The presence of the accused is not only a
right but also a duty. It is not required that
counsel for the accused be present at the
promulgation of judgment of conviction in
order that such promulgation will be valid
(Regalado citing People v. Quibate, G.R. No.
54881, 31 July 1984).
The trial court does not lose jurisdiction
over the person of the accused who
escapes during the trial, since jurisdiction
once acquired is not lost upon the instance
of the parties but continues until the case
is terminated. Where the conditions for a
valid trial in absencia are attendant, the
trial must proceed and upon the
termination thereof, the court has the duty
to rule upon the evidence presented.
Rule on qualified waiver
An accused may waive his right to be
present during the trial but his presence
may
nonetheless
be
compelled
for
identification by the prosecution witnesses
unless he unqualifiedly admits in open
court after his arraignment that he is the
person named as the accused in the case
on trial (Aquino, Jr. v. Military Commission
No. 2,et al., L-37364, 9 May 1975).
Where the judgment is one of acquittal, the
presence of the accused may be dispensed
with.

When the accused appears without his


counsel, duties of the court (People v.
Malunsing, et al., L-29015, 29 April 1975).
Denial of the right to counsel is a reversible
error but said right may be waived by the
accused. Failure to provide counsel for the
accused who desires the same results in loss
of jurisdiction.
The right to counsel means effective counsel,
i.e., said counsel must be made to perform
his duty. The proper measure of the
attorney's
performance
is
simply
reasonableness under prevailing professional
norms.
While the accused has the right to counsel
at the arraignment, if he spontaneously
withdraws his former plea of "not guilty" and
substitutes it with one of guilty without the
assistance of counsel, he thereby waives his
right to be assisted by counsel and he
cannot raise such issue for the first time on
appeal.
The right to be assisted by counsel attaches
only during custodial investigation and
cannot be claimed by the accusedd during
identification in a police line-up because it is
not part of the custodial investigation
process.
The trial and conviction of a deaf-mute
without the services of an expert on sign
language at any stage of the proceedings,
who could have conveyed to the accused the
full facts of the charges and could also have
communicated the accused's version of his
defense, is a denial of due process.
RIGHT TO COUNSEL
General Rule:
The right to counsel is absoluteand may be
invoked at all times even on appeal.

Without the aid of a counsel, an accused


may be convicted not because he is guilty
but because he does not know how to
establish his innocence.
Exception:
The accused, upon motion may beallowed
to defend himself in person when it
sufficiently appears to the court that he
can properly protect his rights without the
assistance of a counsel.
The right covers the period beginning from
custodial investigation until rendition of
judgment and appeal.
Difference between the right to counsel
during custodial investigation and during
trial

During Trial: The right to counsel


meanseffective counsel. Counsel
is here not toprevent the accused
from confessing but to defend the
accused.

During
Custodial
Investigation:
Stricterrequirement, it requires the
presence of competent and independent
counsel who is preferably the choice of
the accused. Since a custodial
investigation is not done in public and
there is a danger that confessions can
be exacted against the will of the
accused.

Duty of the Court when there is no


counsel
When the accused appears before the
court without counsel, the court has the
following duties:
a. It must inform the accused that it
is his right to have an attorney
before being arraigned;

b. After giving him such information,


the court must ask him if he desires
the aid of an attorney;
c. If he desires and is unable to employ
one, the court must assign an
attorney de officio to defend him;
d. If the accused desires to procure an
attorney of his own, the court must
grant him reasonable time.
The duty of the court to appoint a counsel
deofficio when the accuse3d has no legal
counsel ofchoice and a desire to employ the
services of one is MANDATORY only at the
time of arraignment (Sec. 6, Rule 116)
NOTE: The right to counsel and the right
toremain silent do not cease even after a
criminal complaint or information has
already been filed against the accused, as
long as he is still in custody (People v.
Maqueda, G.R. No. 112983,March 22, 1995)
Offended party cannot waiveassistance of
counsel
Reason:
The
offended
party
can
onlyintervene inthe case if by counsel. If
the offended party cannot afford a private
prosecutor, the public prosecutor can
represent him.
TO TESTIFY AS WITNESS IN HIS OWN
BEHALF
A denial of the defendants right to testify in
his behalf would constitute an unjustifiable
violation of his constitutional right.
ORDI
NARY
WITN
ESS
May be
compelle
d to take
the

ACCUSED AS
WITNESS

May altogether refuse to


take the witness stand and
refuse to answer any and all
questions.

witness
stand
and
claim
the right
against
selfincrimin
ation as
each
question
requirin
g
an
incrimin
ating
answer
is asked
of him.
May be
crossexamine
d as to
any
matter
stated in
the
direct
examina
tion or
connect
ed
therewit
h.

NOTE:
If
the
accusedtestifiesin
hisownbehalf, then he may
becross-examined
as
anyother
witness.
He
maynot,oncrossexamination,
refuse
toansweranyquestionon the
ground that theanswer will
give or theevidencethat he
Will
producewouldhavetendency
toincriminate
him
for
thecrimethat
he
wascharged.
May be cross- examined but
only on maters covered by
his direct examination.
NOTE:
If the accused
refuses
to
be
crossexamined, the testimony of
the accused who testifies on
his own behalf will not be
given weight and will have
no probative value because
the prosecution will be able
to test its credibility.
This applies to co- accused.

Effect if the accused refuses to testify


The silence of the accused should not be
taken against him.
Exception:
a. When the prosecution has already
established a prima facie case, the
accused must present proof to
overturn the evidence; and
b. Defense of the accused is alibi and
does not testify, the inference is
that the alibi is not believable.

Requirements in order that an admission


of guilt of an accused during a custodial
investigation be admitted in evidence
An admission of guilt during a custodial
investigation is a confession. To be
admissible in evidence, the confession must
be voluntary, made with the assistance of
competent and independent counsel, express
and in writing.
If the accused testifies, he may be crossexamined but only on matters covered by his
direct examination, unlike an ordinary
witness who can be cross-examined as to
any matter stated in the direct examination
of connected therewith (Sec. 6, Rule 132).
His failure to testify is not taken against him
but failure to produce evidence in his behalf
is considered against him.
The failure of the accused to take the
witness stand despite the prima facie
evidence against him, and which he left
unrebutted and uncontradicted, gives rise to
a presumption of guilt on his part.
Right to be exempt from being compelled to
be a witness against himself: This is a
waivable right.
RIGHT AGAINST SELF-INCRIMINATION
General Rule:
A person may not be compelled tobe a
witness against himself. The right against
self-incrimination is not self-executing, thus
must be asserted.
The right may be waived by the failure of the
accused to invoke it at the proper time.Such
time
refers
to
moment
after
the
incriminating question was asked and before
he answers such question.
Incriminating question

That which may be subject him to penal


liability.
The right only applies to testimonial
evidence and not where the evidence
sought to be excluded is not incrimination
but forms parts of object evidence. Hence,
it does not cover examination of the body
of the accused when it may be material.
Hence, it does not cover examination of
his body as evidence, when it may be
material:
1. Physical examination;
2. Examination of a rapist and the
victim for gonorrhea is valid;
3. Examination of a woman for
pregnancy charged with adultery
is valid (Villaflor v.Summers, G.R.
No. 16444, September 7, 1920);
4. Undergo
ultraviolet
light
for
examination
of
presence
of
fluorescent
powder
dust
on
marked money used in a buy-bust
operations;
5. Police line-up;
6. Paraffin test.
Exception:
A person may still be compelled totestify
even if it will result in his admission of a
crime. Thus, the government provides
immunity statutes to serve as protection
equivalent of the right against selfincrimination accorded the witness.
The right does include cases covered by
immunity statutes such as:
RA 1379 Forfeiture of ill-gotten
wealth
RA 749 Bribery and Graft Cases
Where Available: Not only in criminal
but also ingovernment proceedings, civil,
administrative proceedings where there
is a penal sanction involved.

Where Invoked: After the asking of a


questionand before answering it.
IMMUNITY STATUTES
Use immunity
Witness compelled
testimony and the
fruits thereof cannot
be
used
in
subsequent
prosecution
of
a
crime against him.

Transactional
immunity
Witness immune from
prosecution of a crime
to
which
his
compelled testimony
relates.

Witness can still be Witness cannot


prosecuted but the prosecuted at all
compelled testimony
cannot
be
used
against him.

be

The essence of the privilege is testimonial


compulsion. It embraces not only oral
testimony but the furnishing of evidence by
any other means of any fact which the
accused has the right to keep secret.
Exception: Compelling the accused to
givesamples of his handwriting. However, if
the accused takes the witness stand and
specifically denies that a particular writing
is his, he is deemed to have waived the
privilege and he can be compelled to give
specimens of his handwriting.
Purely mechanical acts are not included in
this privilege.
RIGHT TO COFRONT AND CROSSEXAMINE THE WITNESS AGAINST HIM
AT TRIAL
Confrontation
It is the act of setting a witness face-to-face
with the accused so that the latter may
make any objection he has to the witness

which must take place in the court having


jurisdiction to permit the privilege of crossexamination.
In addition, the accused is entitled to have
compulsory process issued to secure the
attendance of witness and production of
other evidence in his behalf. (Sec. 1.g).
Purposes:

To secure the opportunity of crossexamination

To allow the judge to observe the


deportment and appearance of the
witness while testifying.

By way of exception to this rule, it is


[provided that either party may utilize as
part of its evidence the testimony of a
witness who has died, out of the country
or cannot be found with due diligence,
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 opportunity
to cross-examine him. (Rule 130 Sec 47)
There is no law making compulsory the
presentation of a complainant as a
witness.
The general exceptions to the Hearsay rule
are also applicable as exceptions to the
right of confrontation.
The
conditional
examination
of
a
prosecution witness, taken pursuant to
Sec. 15, Rule 119, may be used at the trial
if
he
is
unavailable
under
the
circumstances in Sec. 1(f) of this Rule.
Where, at the trial, the testimony of
prosecution witnesses taken in question
and answer form during the PI and who
were cross-examined by the defense

counsel, were admitted in evidence and


reproduced, subject to the right of defense to
further cross-examine them, the accused
was not thereby denied the constitutional
right of confrontation.
The right of confrontation
and crossexamination may
be
waived
expressly or impliedly:
When a party has had the opportunityto
cross-examine a witness but failed to avail
himself of it, he necessarily forfeits the right
to croass-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-47411,
February 20, 1981)
RIGHT TO COMPULSORY PROCESS

Modes of Discovery

In criminal proceeding, the defendant


enjoys the right to have a compulsory
process to secure the attendance of
witnesses and the production of evidence
in his behalf.
RIGHT TO SPEEDY, IMPARTIAL AND
PUBLIC TRIAL
This is a non-waivable right.
The right to speedy trial is intended to
avoid oppression and to prevent delay by
imposing on the courts and on the
prosecution an obligation to proceed with
reasonable dispatch.

This right must be invoked during the trial


and the refusal of the court to grant said
right is reversible error.

A claim that the accused has been denied


his right to a speedy trial is subject to a
balancing test, in which the conduct of
both the prosecution and the accused
should be weighed.

This is a waivable right. This is the right of


the accused to have a subpoena and/or a
subpoenaduces tecum issued in his behalf in
order tocompel the attendance of witnesses
and the production f other evidence.

Facts to be considered to determine if


the right to speedy trial has been
violated

If a witness refuses to testify when required


is in contempt of court. The court may order
a witness to give bail or to be arrested.
Purpose:
To assure a full and unimpededopportunity
for him to meet what in the end could be a
baseless suit or accusation.
Process which may be resorted to, to
compel the attendance of a person in
court:
Subpoena (ROC, Rule 21);
Subpoena duces tecum(ROC, Rule 21);
Warrant of arrest;
Contempt;
Perpetuation of testimony;

Length of the delay


Reason for the delay
The accuseds assertion or nonassertion of the right
Prejudice to the accused resulting from
the delay
Conduct of the parties (Martin v. Ver,
G.R. No. L-62810, July 25, 1983)

Note: There is violation of the right when


thedelay is imputable to the accused (Solis
v. Agloro, G.R. No. L-39254, June 20, 1975).
This is becausewhen the accused resorted
to such tactical maneuvers, he waived his
right to speedy trial (People of the
Philippines v. Jardin, G.R. No. L-33037-42,
August 17, 1983)

Remedies available to the accused when


his right to speedy trial is violated

Ask for the trial of the case;


Unreasonable delay of the trial of a
criminal case as to make the detention of
defendant illegal gives ground for habeas
corpus as a remedy for obtaining release;
Mandamus proceeding to compel the
dismissal of the information.
Ask for the trial of the case and then
move to dismiss Public Trial

Effect of dismissal for violation of the


accused right to a speedy trial:
Such dismissal is equivalent to an acquittal.
Any attempt to prosecute the accused for the
same offense will violate his constitutional
right against being twice put in jeopardy of
punishment of the same offense (Salcedo v.
Mendoza, G.R. No. L-49375, February 28,
1979)
It is a trial held openly or publicly. It is
sufficient that the relatives and friends who
want to watch the proceedings are given the
opportunity to witness the proceedings.
Exception:
The court may upon its own motionor upon
the motion of the accused, exclude the
public from trial if evidence produced may
be offensive to decency or public moral.
Rule regarding Trial by Publicity
The right of the accused to a fair trial is not
incompatible with free press. Pervasive
publicity is not per se prejudicial to the right
to a fair trial. To warrant the finding of
prejudicial
publicity,
there
must
be
allegations and proof that judges have been
unduly influenced, not simply that they
might be due to the barrage of publicity
(People v. Teehankee, GR Nos. 111206-08, 6
October 1995).

The test of the violation of the right to


speedy trial is to begin counting from the
time the information is filed, excluding the
period involved before its filing (People v.
Orsal, et al., L-47069,29 March 1982).
The right to speedy trial is deemed waived
or abandoned where the accused agreed to
several postponements and eventually gave
their consent to the dismissal of the case
without prejudice. The re-filing of the case
seven years (several years) later does not
violate such right to speedy trial as, the
case having been dismissed with express
consent of the accused, there was no trial
to speak of for lack of a standing
indictment against the accused. Neither
can double jeopardy be invoked (Remedial
LawCompendium, Florenz Regalado citing
cases).
The long delay in the termination of the PI
and the filing of the information is violative
of the constitutional right of the accused to
procedural due process.
The right to a speedy disposition of a case,
like the right to speedy trial, is deemed
violated only where the proceeding is
attended by vexatious, capricious and
oppressive delays, or when unjustified
postponements of the trial are asked for
and secured, or when without cause or
justifiable motive a long period of time is
allowed to elapse without the party having
his case tried.
The right to public trial may be denied by
the court on considerations of decency and
public morals, or may be waived by the
accused (Sec. 21, Rule 119).
THE SPEEDY TRIAL ACT OF 1998
(RA No. 8493)
Duty of the court after arraignment of
an accused

The Court shall order a pre-trialconference


to consider the following:
a. Plea Bargaining;
b. Stipulation of facts;
c. Marking for identification of evidence
of parties;
d. Waiver of objections to admissibility of
evidence; and
e. Such other matter as will promote a
fair and expeditious trial.
Time limit for the trial of criminal cases:
Shall notexceed 180 days from the first day
of trial.
Exceptions:
a. Those governed by the Rules on
Summary Procedure;
b. Where the penalty prescribed by law
does
not
exceed
6
months
imprisonment or a fine of Php
1,000.00 or both;
c. Those authorized by the Chief Justice
of the SC.
The time limits set by the Speedy Trial Act of
1998
do
not
precludejustifiable
postponements
anddelays
when
so
warranted by the situation (Domondon v.
Sandiganbayan, G.R. No. 166606,November
29, 2005).
Period of arraignment of the accused:
Withinthirty (30) days from the filing of the
information or from the date the accused
appealed before the justice/judge/court in
which the charge is pending, whichever date
last occurs.
When shall trial commence after
arraignment:
Within thirty (30) days from arraignment.
IMPARTIAL TRIAL
Due process of law requires a hearing before
an impartial and disinterested 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. L34756-59, March 31, 1973)
To disqualify a judge on the ground of bias
and prejudice, the movant must prove
such bias by clear and convincing evidence
(Webb v. People of the Philippines, G.R. No.
176389 / G.R. No. 176864, July 24, 1997).
Q: L was charged with illegal possession of
shabu before the RTC. Although bail was
allowable under his indictment, he could
not afford to post bail, and so he remained
in detention at the City Jail. For various
reasons ranging from the promotion of the
Presiding Judge, to the absence of the trial
prosecutor, and to the lack of notice to the
City Jail Warden, the arraignment of L was
postpones nineteen times over a period of
two years. Twice during that period, Ls
counsel filed motions to dismiss, invoking
the right of the accused to speedy trial.
Both motions were denied by the RTC. Can
L file a petition for mandamus. Reason
briefly. (BAR 2007)
A:Yes, L can file a petition for mandamus
to enforce his constitutional right to a
speedy trial which was capriciously denied
to him. There is absolutely no justification
for postponing an arraignment of the
accused nineteen (19) times and over a
period of two (2) years. The numerous,
unreasonable
postponements
of
the
arraignment demonstrate an abusive
exercise of discretion (Lumanlaw v. Peralta,
482 SCRA 396, 2006).Arraignment of an
accused would not take thirty minutes of
the precious time of the court, as against
the
preventive
imprisonment
and
deprivation of liberty of the accused just
because he does not have the means to
post bail although the crime charged is
bailable. The right to a speedy trial is
guaranteed by the Constitution to every
citizen accused of a crime, more so when is
under preventive imprisonment. L, in the
given case, was merely invoking his

constitutional right when a motion to


dismiss the case was twice filed by his
counsel. The RTC is virtually enjoined by the
fundamental law to respect such right;
hence a duty. Having refused or neglected to
discharge the duty enjoined by law whereas
there is no appeal nor any plain, speedy, and
adequate remedy in the ordinary course of
law, the remedy of mandamus may be
availed of.
RIGHT TO APPEAL ON ALL CASES
ALLOWED BY LAW AND IN THE MANNER
PRESCRIBED BY LAW
The right to appeal from a judgment of
conviction is fundamentally statutory in
origin. It is not a natural right and it may be
denied by the legislature as long as hearing
is
conducted
except
the
appellate
jurisdiction of the Supreme Court which
congress cannot remove but if there is a
statutory grant of appeal, denial of the same
is a violation of due process.
Waiver of the right to appeal
The right to appealis personal to the
accused and similarly to the other rights of
kindred nature it may be waived either
expressly or by implication. However, where
the death penalty is imposed, such right
cannot be waived as the review of the
judgment by the Supreme Court is
automatic and mandatory (A.M. NO. 00-0503-SC).
Note: The SC inPeople of the Philippines v.
Mateo(GR No. 14767887, June 7, 2004) ruled
that themandatory review of cases in which
the death penalty is imposed shall pass
through an initial review by the Court of
Appeals.
Time Limit for trial of Criminal Cases
It shall not exceed 180-days from the first
day of trial.

Exceptions:
Those governed by the Rules of
Summary Procedure.
Where penalty prescribed by
law does not exceed 6-months
imprisonment or a fine not of
PHP 1000 or both
Those authorized by the Chief
Justice of the Supreme Court.

RULE 116 ARRAIGNMENT AND PLEA


ARRAIGNMENT FLOWCHART
Information
Ambiguous

Of Substance
Amend
NoInformation w/o leave of c
Nature of offense has been downgraded or any accused has to be excluded
Nature of Information

File motion for bill of particulars

YES

Amend Information
upon motion by the prosecutor, w/ notice to offended party w/ leave
YES
Any of the grounds in Sec. 3 Rule 117 exist?
Motion to Quash

No
YES
Suspend Arraignment

Motion to Defer

No
File motion to conduct Preliminary
No Investigation
Preliminary Investigation conducted?

YES
ARRAIGNMENT

Guilty
PLEA

No
Presents exculpatory evidence

No
Capital offense?
YES

Conduct searching, inquiry and require prosecution to prove accuse


Refuses to plead, makes conditional plea

YESS

YES
Not guilty
Order withdrawal of plea of guilty
Enter plea of not guilty

Improvident plea?

No

Receive evidence from the parties to determine penalty to be imp

RULE 116
ARRAIGNMENT AND PLEA
ARRAIGNMENT AND PLEA; HOW
MADE
(SEC. 1)
ARRAIGNMENT
The formal mode of implementing the constitutional right of the accused to be informed of the
nature and cause of accusation against him.
The accused must be arraigned:
1. before the court where the complaint or information was filed or assigned for trial;
2. made in open court by the judge or clerk by furnishing the accused with a copy of the
complaint or information;
3. reading the same in the language or dialect known to him; and
4. asking him whether he pleads guilty or not guilty.
The prosecution may call at the trial witnesses other than those named in the complaint or
information.
PLEA
Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge
against him.
Rules on Plea
1. There can be no double jeopardy when the accused has not yet pleaded to the offense.
2. A mere written manifestation is not a valid plea. For jeopardy to attach, it is necessary that
the defendant has been arraigned and has pleaded to the charge because it is from that
moment that the issues are deemed joined.
3. To avoid delay, the presence of the offended party is now required during the arraignment
and also to discuss the matter of the civil liability of the accused. Failure to appear despite
due notice gives the court discretion to allow the accused to plead guilty to a lesser offense
solely with the conformity of the trial prosecutor.
If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not guilty shall
be entered for him.
The accused must be present at the arraignment and must personally enter his plea. Both
arraignment and plea shall be made of record, but failure to do so shall not affect the validity of
the proceedings.
When the accused refuses to plead or makes a conditional plea, a plea of notguilty shall be
entered for him.

When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for him.
When the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three (3) days from the filing of
the information or complaint. The accused shall be arraigned within ten (10) days from the
date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after
arraignment.
The private offended party shall be required to appear at the arraignment for purposes of:
1. plea bargaining,
2. determination of civil liability, and
3. other matters requiring his presence.
In case of failure of the offended party to appear despite due notice, the court may allow
theaccused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone. (Cir. 1-89)
Unless a shorter period is provided by special law or Supreme Court Circular, the arraignment
shall be held within thirty (30) days from the date the court acquires jurisdiction over the
person of the accused. The time of the pendency of a motion toquash or for a bill of particulars
or other causes justifying suspension of the arraignment shall be excluded in computing the
period. (Sec. 2, Cir. 38-98)
As Sec. 1 is an implementation of the constitutional right to be informed of the charge, it is the
duty of both the court and the counsel assisting the accused to see to it that the accused
comprehends the charges and realizes the gravity and consequences of his plea thereto.
A failure to observe the rules on arraignment is reversible error and a judgment of conviction
cannot stand upon an invalid arraignment. However, errors in procedure can be waived by the
accused.
While the accused in a criminal case is entitled to know in advance the names of all the
witnesses against him, the time for the accused to know all the witnesses against him is when
they take the witness stand.
WHEN SHOULD A PLEA OFNOT GUILTY BE ENTERED
1. When the accused so pleaded;
2. When he refuses to make a plea;
3. Where in admitting the act charged, he sets up matters of defense or with lawful
justification;
4. When he enters a conditional plea of guilty;
5. Where, after a plea of guilty, he introduces evidence of self - defense or other exculpatory
circumstances;
6. When the plea is indefinite or ambiguous.

NOTE: An unconditional plea of guilt admits ofthe crime and all the attendant circumstances
alleged in the information including the allegations of conspiracy and warrants judgment of
conviction without need of further evidence,
EXCEPTIONS:
a. Where the plea of not guilty was compelled by violence or intimidation;
b. When the accused did not fully understand the meaning and consequences of his plea;
c. Where the information is insufficient to sustain conviction of the offense charged;
d. Where the information does not charge an offense, any conviction thereunder being
void; and
e. Where the court has no jurisdiction.
A plea of guilty to the information admits only facts alleged therein but is not an admission
that the acts charged are unlawful nor does it cure the defect in the court's jurisdiction.
A plea of not guilty to an information alleging aggravating circumstances will not be considered
an admission of said circumstances if the evidence subsequently presented by the prosecution
fails to prove the same. The same doctrine applies to qualifying circumstances alleged but not
proved.
WHEN MAY AN ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE
(SEC. 2)
1. At arraignment, the accused, with the consent of the offended party and the prosecutor,
may be allowed by the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged.
2. After arraignment but before trial, the accused may still be allowed to plead guilty to the
said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint
or information is necessary.
3. After prosecution rests: allowed only when the prosecution does not have sufficient
evidence to establish guilt for the crime charged (Peoplev. Villarama, L-99287, June 23,
1992, 210 SCRA 246).
The offer to plead not guilty to a lower offense is not demandable by the accused as a matter of
right but is addressed to the sound discretion of the trial court.
Where the requirements of both consents of the offended party and the prosecutor were not
observed, the accused cannot claim double jeopardy if he should be charged anew with the
graver offense subject of the original information or complaint (Sec. 7[c], Rule 117). However,
where the offended party failed to appear despite due notice, the consent of the trial prosecutor
alone will suffice (Sec.1[f], Rule 116)(Remedial Law Compendium, Florenz Regalado).
ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT THE COURT SHOULD DO
(SEC. 3)

When the accused pleads guilty to a capital offense, the court shall:
1. conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea
2. require the prosecution to prove his guilt and the precise degree of culpability.
The accused may present evidence in his behalf.
Under the new formulation three (3) things are enjoined of the trial court after a plea of guilty
to a capital offense has been entered by the accused:
1. The court must conduct a searching inquiry into the voluntariness and full comprehension
of the consequences of his plea;
2. The court must require the prosecution to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and
3. The court must ask the accused if he desires to present evidence in his behalf and allow
him to do so if he desires (People v. Camay, G.R. No. L-51306, 29 July 1987.)
The procedure to be observed by the trial court in instances where an accused waives his right
to present evidence specifically in capital offenses:
1. The trial court shall hear both the prosecution and the accused with their respective
counsel on the desire or manifestation of the accused to waive the right to present evidence
and be heard.
2. The trial court shall ensure the attendance of the prosecution and especially the accused
with their respective counsel in the hearing which must be recorded. Their presence must
be duly entered in the minutes of the proceedings.
3. During the hearing, it shall be the task of the trial court to:
a. ask the defense counsel a series of questions to determine whether he had conferred
with and completely explained to the accused that he had the right to present evidence
and be heard as well as its meaning and consequences, together with the significance
and outcome of the waiver of such right. If the lawyer for the accused has not done so,
the trial court shall give the latter enough time to fulfill this professional obligation.
b. inquire from the defense counsel with conformity of the accused whether he wants to
present evidence or submit a memorandum elucidating on the contradictions and
insufficiency of the prosecution evidence, if any or in default thereof, file a demurrer to
evidence with prior leave of court, if he so believes that the prosecution evidence is so
weak that it need not even be rebutted. If there is a desire to do so, the trial court shall
give the defense enough time for this purpose.
c. elicit information about the personality profile of the accused, such as his age, socioeconomic status, and educational background, which may serve as a trustworthy index
of his capacity to give a free and informed waiver.
d. all questions posed to the accused should be in a language known and understood by
the latter, hence, the record must state the language used for this purpose as well as
reflect the corresponding translation thereof in English (People v. Bodoso, G.R. Nos.
149382-83, 5 March 2003).

SEARCHING INQUIRY
To constitute searching inquiry, the questioning must focus on:
1. The voluntariness of the plea; and
2. Whether the accused understood fully the consequence of his plea.
While there can be no hard and fast rule as to how a judge may conduct a "searching inquiry,"
as to the number and character of questions he may put to the accused, or as to the
earnestness with which he may conduct it, since each case must be measured according to its
individual merit, taking into consideration the age, educational attainment, and social status of
the accused confessing guilt, among other things, the singular barometer is that the judge
must in all cases, fully convince himself that: (1) the accused, in pleading guilty, is doing so
voluntarily, and (2) he, in so doing, is truly guilty, and that there exists a rational basis for a
finding of guilt, based on his testimony (People v. Dayot, G.R. No.88281, 20 July 1990).
PLEA OF GUILTY TO NON-CAPITAL
OFFENSE; RECEPTION OF EVIDENCE,
DICRETIONARY
(SEC. 4)
When the accused pleads guilty to a non-capital offense, the court may receive evidence from
the parties to determine the penalty to be imposed.
Although there is no specific provision in the law requiring the trial court to conduct an inquiry
into the voluntariness of an accuseds waiver of the right to present evidence, the
circumstances of the present case, the gravity of the imposable penalty and the plea of "not
guilty" entered by the accused should have prompted the trial court to conduct a thorough
inquiry into the reasons behind such waiver, the voluntariness thereof, and the sufficiency of
appellants knowledge and understanding of the effects of his waiver.
IMPROVIDENT PLEA
(SEC. 5)
It is a plea without information as to all the circumstances affecting it. It is based upon a
mistaken assumption or misleading information or advice.
At any time before the judgment of convictionbecomes final, the court may permit animprovident
plea of guilty to be withdrawn and be substituted by a plea of not guilty.
While this Rule is silent on the matter, a plea of not guilty can likewise be withdrawn so that
the accused may instead plead guilty to the same offense but, for obvious reasons, this must
be done before promulgation of judgment. In either said case or the case contemplated under
this section, if the prosecution had already presented its witnesses, the accused will generally
not be entitled to the mitigating circumstance based on a plea of guilty (People v. Lumague, Jr.,
G.R. No. 53586, 31 Jan. 1982; Art. 13[7], RPC).
Effect of Improvident Plea

The conviction will be set aside if the plea of guilty is the sole basis for the judgment. However,
the court may validly convict the accused if such conviction is supported by adequate evidence
of guilt independent of the plea itself.
Instances of Improvident Plea
1. Plea of guilty was compelled by violence or intimidation;
2. The accused did not fully understand the meaning and consequences of his plea;
3. Insufficient information to sustain conviction of the offense charged;
4. Information does not charge an offense;
5. Court has no jurisdiction.
Improvident Plea, Withdrawn
The court may permit an improvident plea of guilty to be withdrawn at any time before the
judgment of conviction becomes finaland besubstituted by a plea of not guilty. However, the
withdrawal of a plea of guilty is not a matter of right to the accused but addressed to the sound
discretion to the trial court.
NOTE: The withdrawal of a plea of guilty is not amatter of right but of sound discretion of the
trial court (People v. Lambrino, G.R. No. L-10845, April28, 1958).
Effect of Withdrawal
The court will then set aside judgment of conviction and re-open the case for new trial.
DUTY OF COURT TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL
(SEC. 6)
Before arraignment, the court shall inform the accused of his right to counsel and ask him if
he desires to have one. Unless the accused is allowed to defend himself in person or has
employed counsel of his choice, the court must assign a counsel de-oficio to defend him.
APPOINTMENT OF COUNSEL DE OFICIO
(SEC. 7)
The court, considering the gravity of the offense and the difficulty of the questions that may
arise, shall appoint as counsel de oficio such members of the bar in good standing who, by
reason of their experience and ability, can competently defend the accused. But in localities
where such members of the bar are not available, the court may appoint any person, resident
of the province and of good repute for probity and ability, to defend the accused.
TIME FOR COUNSEL DE OFICIO TO
PREPARE FOR ARRAIGNMENT
(SEC. 8)
Whenever a counsel de oficio is appointed by the court to defend the accused at the
arraignment, he shall be given a reasonable time to consult with the accused as to his plea
before proceeding with the arraignment.
BILL OF PARTICULARS
(SEC. 9)

The accused may, before arraignment, move for a bill of particulars to enable him properly to
plead and prepare for trial. The motion shall specify the alleged defects of the complaint or
information and the details desired.
Purposes of Bill of Particulars
CRIMINAL CASES
Enter a valid plea
Only the accused
and
not
the
offended party can
file
a
bill
of
particulars as he
will enter his plea
To prepare for trial

CIVIL CASES
To file a responsive
pleading
Either
of
the
parties that will
file a responsive
pleading can ask
for
a
bill
of
particulars
Not necessarily to
prepare for trial as
the
respondent
can opt for the
modes of discovery

PRODUCTION OR INSPECTION OF MATERIAL EVIDENCE IN POSSESSION OF THE


PROSECUTION
(SEC. 10)
Upon motion of the accused showing good cause and with notice to the parties, the court, in
order to prevent surprise, suppression, or alteration, may order the prosecution to produce
and permit the inspection and copying or photographing of any written statement given by the
complainant and other witnesses in any investigation of the offense conducted by the
prosecution or other investigating officers, as well as any designated documents, papers,
books, accounts, letters, photographs, objects, or tangible things not otherwise privileged,
which constitute or contain evidence material to any matter involved in the case and which
are in the possession or under the control of the prosecution, police, or other law investigating
agencies.
GROUNDS OF SUSPENSION OF ARRAIGNMENT
(SEC. 11)
1. Upon motion by the proper party, the arraignment shall be suspended in the following
cases:
a. The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;

b. There exists a prejudicial question; and


c. A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period
of suspension shall not exceed sixty (60) days counted from the filing of the
petition with the reviewing office.
Par. (a) reinforces the provision of par. 1, Art. 12,RPC.
Art. 12. Circumstances which exempt from criminal liability. The following are exempt from
criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid
interval. When the imbecile or an insane person has committed an act which the law defines as
a felony (delito), the court shall order his confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not be permitted to leave without first
obtaining the permission of the same court.
Par. (b) complements Sec. 6, Rule 111.
Regarding par. (c), it was reiterated in Adasa v.Abalos (G.R. No. 168617, 19 Feb. 2007) that
whenthe accused pleads to the charge, he is deemed to have waived the right to preliminary
investigation or to question any irregularity therein. This precept is also applicable in cases of
reinvestigation or review of such reinvestigation.
2. There are pending incidents such as:
a. A Motion to Quash
b. A Motion for Inhibition;
c. A Motion for Bill of Particulars
RULE 117
MOTION TO QUASH
It is a special pleading filed by the defendant before entering his plea, which hypothetically
admits the 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 proceedings.
TIME TO MOVE TO QUASH
(SEC. 1)
At any time before entering his plea, the accused may move to quash the complaint or
information.
FORM AND CONTENTS
(SEC. 2)
The motion to quash shall be:
1. in writing;

2. signed by the accused or his counsel; and


3. shall distinctly specify its factual and legal grounds.
The court shall consider no ground other than those stated in the motion, except lack of
jurisdiction over the offense charged.
Where, in a motion to quash an information for libel, the prosecution objected to evidence
showing the privileged nature of the communication, the court cannot quash the case as such
defense must be raised at the trial. But where the prosecution failed to object and such proof of
privilege was admitted into the record, quashal was proper (Remedial Law Compendium,Florenz
Regalado citing cases).
The motion to quash an information for libel on the ground of qualified privilege, duly opposed
by the prosecution, is properly denied as the prosecution is entitled to prove at the trial that
there was malice in fact on the part of the accused.
What Sec. 2 means is that the resolution of a motion to quash shall be based only on grounds
alleged therein, but the court may motu propio consider the aforesaid jurisdictional ground in
such resolution even if the latter is not invoked in that motion. If the matter of lack of
jurisdiction over the offense was not raised and/or considered, the same may be invoked at a
later stage (Remedial Law Compendium, Florenz Regalado).
A motion to suspend the issuance of a warrant of arrest should be considered as a motion to
quash if the allegations therein are to the effect that the facts charged in the information do not
constitute an offense.
Although Sec. 2 provides that a motion to quash should be in writing, it has been held that an
oral motion to quashpresented in open court beforearraignment is NOT necessarily void or
inefficacious. The accused may be allowed to put his motion in writing under such conditions
as the court may impose (Remedial Law Compendium, Florenz Regalado).
Unlike a motion to dismiss in civil cases, the court must act on the motion to quash before and
cannog defer the hearing and determination of said motion until the trial on the merits as it
would impair the right of the accused to a speedy trial.
A motion to quash may also be filed and resolved at the PI since the investigation officer or
judge has the power to either dismiss the case or bind the accused over for trial by the proper
court, depending on its determination of lack of or presence of probable cause (Remedial
LawCompendium, Florenz Regalado citing People v. Sabio, Sr., et a., L-45490, 20 Nov. 1978).
General Rule:
The accused may move to quashthe complaint or information at any time before entering his
plea.
Exceptions:
A motion to quash can be filed andentertained at any stage of the proceeding when:
1. That the facts charged do not constitute an offense;

2. That the court trying the case has no jurisdiction over the offense charged;
3. That the criminal action or liability has been extinguished; and
4. 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.
Right to file a motion to quash belongs only to the accused. There is nothing in the rules which
authorizes the court or judge to muto proprio initiate a motion to quash.
The motion to quash is not a responsive pleading as it is not addressed to the complainants
but to the court.
Remedy if motion to quash is denied
If the motion to quash is denied, the proper procedure is to go to trial without prejudice to
reiterating special defenses invoked in the said motion, and if after trial on the merits, an
adverse decision is rendered, to appeal it in the manner authorized by the law.
GROUNDS FOR MOTION TO QUASH
(SEC. 3)
The accused may move to quash the complaint or information on any of the following grounds:
Par. (a) That the facts charged do not constitute an offense
The test for the correctness of this ground is the sufficiency of the averments in the
information, that is, whether the facts alleged, if hypothetically admitted, constitute the
elements of the offense and matters aliunde will not be considered.
This objection is not waived even if not alleged in a motion to quash (Sec. 9) as the appellate
court will by itself review the records of the case.
Par. (b) That the court trying the case has no jurisdiction over the offense charged
This ground is not waived even if not raised in the motion to quash (Sec. 9). Jurisdiction must
exist as a matter right and cannot be conferred or waived by consent, estoppel or inaction.
Par. (c) That the court trying the case has no jurisdiction over the person of the accused
The accused may move to quash for lack of jurisdiction over his person, but he must do so only
on that ground and for that purpose. If, having raised such ground, he nevertheless takes part
in the proceedings with his counsel cross-examining the witness or he raises other grounds for
a motion to quash, he is deemed to have submitted his person to the jurisdiction of the court.
Par. (d) That the officerwho filed the information had no authority to do so;

Irregularities in the appointment of the prosecuting officer who signs the information do not
necessarily invalidate the same if he may be considered a de facto officer but where the person
who signed the information was disqualified from appointment to such position, the
information is invalid and the court does not acquire jurisdiction to try the accused thereon.
Consequently, such objection is not waived and may still be raised after plea as the issue of
jurisdiction is involved. An information filed by a qualified and authorized officer is required for
the jurisdiction of the court over the case. This ground may also be raised if the information
was not approved by the head of the prosecuting officer (Remedial Law Compendium, Florenz
Regalado citing cases and Sec. 4, Rule 112).
Where a sworn written statement is required to be filed by the offended party (private crimes),
as in crimes against chastity, and such complaint is signed instead by the chief of police, the
ground for the motion to quash is lack of jurisdiction and NOT under this subsection.
Special counsel designated by the Justice Secretary, under Sec. 1686 of the Revised
Administrative Code, have the authority to conduct the PI, as well as to sign and file the
information (Remedial Law Compendium, FlorenzRegalado citing Nassr v. Perez, et al., L-28770,
28 Feb. 1973).
Par. (e) That it does not conform substantially to the prescribed form
Par. (f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law
Multiplicity of charges in a single information is prohibited in this jurisdiction to protect the
accused from confusion and difficulty in making his defense. The accused, however, may waive
such objection and can be convicted of as many distinct charges as are alleged in the
information and proved.
Exceptions to this rule: complex or composite crimes under the RPC and in those special laws
wherein a single punishment is imposed for various offenses.
Q: Rodolfo is charged with possession of unlicensed firearms in an Information filed in the
RTC. It was alleged therein that Rodolfo was in possession of two unlicensed firearms: a .45
caliber and-a .32 caliber. Under Republic Act No. 8294, possession of an unlicensed .45 caliber
gun is punishable by prision mayor in its minimum period and a fine of P30.000.00, while
possession of an unlicensed .32 caliber gun is punishable by prision correctional in its
maximum period and a fine of not less than P15,000.00. As counsel of the accused, you
intend to file a motion to quash the Information. What ground or grounds should you
invoke? Explain.(BAR 2005)
A: The ground for the motion to quash is that more than one offense is charged in the
information. (Sec. 3[f], Rule 117, 2000 Rules of Criminal Procedure) Likewise, the RTC has no
jurisdiction over the second offense of possession
of
an
unlicensed .32
caliber
gun,punishable by prision correctional in its maximum period and a fine of not less than
P15.000.00. It is the MTC that has exclusive and original jurisdiction over all offenses

punishable
Blg. 129)

by imprisonment not exceeding six years. (Sec. 2, R.A. No. 7691, amending B.P.

Par. (g) That the criminal action or liability has been extinguished
Criminal liability is extinguished by the modes prescribed in Art. 89, RPC:
How criminal liability is totally extinguished.
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code."
Under this Par., prescription of the offense as a ground for a motion to dismiss is NOT waived
as this is a substantive right.
Par. (h) That it contains averments which, if true, would constitute a legal excuse or
justification
This ground is proper only if there are averments in the information itself which constitute a
legal excuse or justification which are:
a. justifying circumstances (Art. 11);
b. exempting circumstances (Art. 12); and
c. absolutory causes (Arts. 6[par. 3], 16, 20, 247 and 332).
Also, in a prosecution for libel, if the information itself contains allegations that the alleged
defamatory imputation is absolutely privileged, the motion to quash on said ground should be
sustained
It is when the information or complaint itself alleges that the accused was insane when he
committed the offense that insanity would be a ground for a motion to quash. If he is insane
when he is to be arraigned, the arraignmentshould be suspended (Sec. 11[a], Rule 116).
Par. (i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent
See notes on Sec. 7

The grounds enumerated above for motion to quash are EXCLUSIVE in character. In resolving
the motion to quash a criminal complaint or information, the facts alleged therein should be
taken as they are.
DISTINCTION FROM DEMURRER TO EVIDENCE
The court may order that information be filed or an amendment thereof be made within a
definite period. If no order is made, or if having been made no new information is filed within
such further time as the court may allow for good cause, the accused, if in custody shall be
discharged unless he is also in custody for another charge.
MOTION TO
QUASH

DEMURRER TO
EVIDENCE

Filed before the Filed


after
the
defendant
enters prosecution
has
his plea
rested its case
Does not go into
the merits of the
case
but
is
anchored
on
matters
not
directly related to
the question of
guilt or innocence
of the accused

Based upon the


inadequacy of the
evidence adduced
by
the
prosecution
in
support
of
the
accusation

Governed by Rule Governed by Rule


117
119
AMENDMENT OF COMPLAINT OR
INFORMATION
(SEC. 4)
If the motion to quash is based on an alleged defect of the complaint or information which can
be cured by amendment, the court shall orderthat an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment.
The motion shall be granted if the prosecution fails to make the amendment, or the
complaint or information still suffers from the same defect despite the amendment.
EFFECTS OF SUSTAINING THE MOTION TO QUASH
(SEC. 5)
If the ground of the motion is either:

a.
b.
c.
d.

That
That
That
That

the facts charged do not constitute an offense, or


the officer who filed the information had no authority to do so, or
it does not conform substantially to the prescribed form, or
more than one offense is charged.

The court may order that another information be filed or an amendment thereof be made, as
the case may be, within a definite period. If such order is NOT MADE, or if having been 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 custody, shall be discharged therefrom, unless he is
also in custody on some other charge.
If the motion to quash is sustained upon any of the following grounds:
1. That a criminal action or liability has been extinguished;
2. That it contains averments which, if true, would constitute a legal excuse or
justification;
3. That the accused has been previously convicted or acquitted of the offense charged.
The court must state, in its order granting the motion, the release of the accused if he is in
custody or the cancellation of his bond if he is on bail.
If the ground upon which the motion to quash was sustained is that the court has NO
jurisdiction over the offense, the better practice is for the court to remand or forward the case
to the proper court, not to quash the complaint or information.
NOTE: The order denying motion to quash is notappealable being an interlocutory order and
the order granting a motion to quash is appealable because the order has the effect of
adjudging the case with finality.
An order granting a motion to quash is appealable, and the accused cannot claim double
jeopardy as the dismissal is procured not only with his consent but at his own instance.
Sec. 5 contemplates the situation where the information is NOT curable by amendment, in
which case the motion to quash is sustained with an order that the proper information should
be filed if such prosecution is proper. In either Sec. 4 or Sec. 5, since only a qualified dismissal
is ordered, double jeopardy is not involved. Sec. 4 regulates the amendment of an information;
Sec. 5 governs the filing of a new information (Remedial Law Compendium, Florenz Regalado).
ORDER SUSTAINING THE MOTION TO QUASH NOT A BAR TO ANOTHER PROSECUTION
(SEC. 6)
General Rule:
When a motion to quash issustained, the order of the court to that effect would not present a
legal roadblock to another prosecution for the same offense.
Exception:

The order sustaining the motion toquash constitutes a bar to another prosecution for the same
offense when the ground relied upon for the quashal of the information:
a. That the criminal action or liability has been extinguished
b. That the accused has been previously convicted, or in jeopardy of being convicted or
acquitted of the offense.
Where the motion to quash on the ground of prescription is granted and the case is dismissed,
the trial court cannot thereafter revive the case, as prescription is a ground for total extinction
of criminal liability
DOUBLE JEOPARDY
(SEC. 7)
When an accused has been either acquitted or convicted, or the case has been dismissed or
otherwise terminated by a court of competent jurisdiction without the express consent of the
accused, the said conviction or acquittal shall be a bar to another prosecution for the same
offense charged.
Two kinds of double jeopardy
1. Where the offenses charged are penalized either by different sections of the same
statute or by different statutes, what isconsidered is the IDENTITY OF THEOFFENSES
CHARGED (Sec. 7 and Par. 1, Sec. 21,Art. III, 1987 Constitution).
In such a case, the constitutional protection against double jeopardy is available only where
an identity exists between the earlier and subsequent offenses charged.
2. Where one offense is charged under an ordinance while the other is penalized by
statute, a conviction or acquittal under either shall be a bar to another prosecution for
the same act. (Sec. 21, Art. III, 1987 Constitution)
IDENTITY OF THE ACTS COMMITTED asallegedly giving rise to the two offenses.
Here, the protection against double jeopardy is available as long as the same acts gave rise
to the offense under the ordinance and that charged under the statute (Remedial Law
Compendium,Florenz Regalado).
Sec. 21, Art. III, 1987 Constitution provides:"No person shall be twice put in jeopardy of
punishment for the same offense.
If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."
Requisites of double jeopardy under this section:
1. The complaint or information or other formal charge was sufficient in form and
substance to sustain a conviction;

2. The court has jurisdiction;


3. The accused had been arraigned and had pleaded to the charge; and
4. Accused has been convicted or acquitted, or the case against him was dismissed or
otherwise terminated without his express consent.
When all of these requisites are present, they constitute a bar to a second prosecution for:
1. the offense charged;
2. any attempt to commit the same;
3. any frustration thereof;
4. any offense which necessarily includes the offense charged in the former complaint or
information; or
5. any offense necessarily included in the offense charged in the former complaint or
information.
However, the conviction of the accused shall NOT be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under
any of the following instances:
a. the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;
b. the facts constituting the graver charge became known or were discovered only after a
plea was entered in the former complaint or information; or
c. the plea of guilty to the lesser offense was made without the consent of the prosecutor
and of the offended party except as provided in Section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same inthe event of conviction for the graver offense.
VALID AND SUFFICIENT COMPLAINT OR INFORMATION
The complaint or information must aver all the elements of the offense charged to support a
judgment of conviction.
Where the accused pleaded guilty to the charge but the court acquitted her on the ground that
the information was insufficient to sustain a conviction when in fact said information was
sufficient, a second prosecution for the same offense constituted double jeopardy.
Jeopardy does not attach where a defendant pleads guilty to a defective indictment that is
voluntarily dismissed by the prosecution (Cudia v.CA, G.R. No. 110315, 16 Jan. 1998).
The test of jeopardy is the crime alleged in the information not that proved.
COURT OF COMPETENT JURISDICTION
Conviction by a court-martial which had jurisdiction over the offense is a bar to a second
prosecution for the same offence in a civil court (Crisologo v. People, G.R. No. L-6277, February
26, 1954, 94 Phil. 477).

A military commission or tribunal has no jurisdiction, even during the period of martial law,
over civilians for offenses allegedly committed by them as long as the civil courts are open and
functioning, and any judgment rendered by such body thereon is null and void for lack of
jurisdiction on the part of the military tribunal concerned (Olaguer v. MilitaryCommission No.
34, et al., G.R. No. 54558, 22 May 1987).
Double jeopardy does not apply where the proceedings against the judge before the SC which
was dismissed was administrative in character and the other proceeding against the same
judge before the Sandiganbayan.
A preliminary investigation is not a trial to which double jeopardy attaches.
Where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction.
PLEA OF THE ACCUSED
It is required that the defendant had been arraigned and had pleaded to the charge because it
is from that moment that the issues for trial are deemed joined. Jeopardy attaches from the
entry of his plea at the arraignment.
Where, after a plea of guilty, the accused was allowed to prove mitigating circumstances, but he
instead testified that he acted in self-defense, said testimony has the effect of vacating his plea
and the judgment of acquittal rendered by the court was a nullity for lack of a standing plea to
the charge. Consequently, the appeal by the prosecution from said judgment does not place the
accused in double jeopardy (Remedial LawCompendium, Florenz Regalado citing People v.
Balisacan, L-26376, 31 August 1966).
PRIOR CONVICTION, ACQUITTAL, DISMISSAL OR TERMINATION
OF THE CASE
The acquittal may be after trial on the merits or under Secs. 17 and 18, Rule 119 (discharge of
the accused as a State witness) (Remedial LawCompendium, Florenz Regalado).
Since conviction or acquittal results without regard to the consent of the accused or the lack
thereof, it follows that the "dismissal" contemplated here is a dismissal which actually is not an
acquittal (People v. Labatete, G.R. No. L-12917, April 27, 1960, 107 Phil. 697), because if the
"dismissal" is actually an acquittal, there would be double jeopardy even if it is with the
express consent of the accused (Remedial Law Compendium, Florenz Regalado).
The silence of the accused or his failure to object to the dismissal of the case is not "express
consent" to such dismissal.
The accused can object to the provisional dismissal of the case against him if it would be
prejudicial or unjust to him or would deprive him of his right to speedy trial. Upon such
objectionand insistence of the accused and on failure of the prosecution to proceed, the court

should dismiss the case and such dismissal amounts to an acquittal (Remedial Law
Compendium, FlorenzRegalado citing Republic v. Agoncillo, et al., L-27257, 31 August 1971).
Where the case was dismissed "provisionally" with the consent of the accused, he cannot
invoke double jeopardy in another prosecution therefor or where the case was reinstated on a
motion for reconsideration. In such a case, where the information is sufficient in form and
substance and the accused is aware that such dismissal is not final in nature, the case may be
revivedwithout the need of filing another information.
With much more reason will these doctrines apply if such provisional dismissal was on motion
of the accused. Even if the proper dismissal did not state that it was "provisional" but the same
was obtained on motion of the accused claiming lack of authority of the judge to try the case,
such dismissal shall be considered to be "without prejudice," and cannot be the basis of a
claim of double jeopardy (Remedial Law Compendium,Florenz Regalado citing cases).
But where the dismissal was actually an acquittal, even if the order calls it a "provisional
dismissal" or "conditional" or "without prejudice," there would be double jeopardy. This would
take place where actually the basis for the dismissal is the
a. lack or insufficiency of the evidence or the
b. denial of the right to speedy trial (Regalado, citing cases).
Where the case was dismissed motu proprio by the court but without prejudice to the refiling
of the same, there is no double jeopardy as such objection presupposes a definite or
unconditional dismissal intended to terminate the case.
There are two instances when double jeopardy will not attach even if the motion to dismiss is
made by the accused himself (with his express consent):
a. When the ground is insufficiency of evidence of the prosecution; and
b. When the proceedings have been unreasonably prolonged in violation of the right to
speedy trial (Regalado citing People v. Verra, G.R. No. 134732, 29 May 2002).
Double jeopardy contemplates ands requires a valid prior acquittal. A judgment of acquittal
rendered with grave abuse of discretion is void as it amounts to lack of jurisdiction.
IDENTICAL OFFENSES
To determine whether the two offenses charged are identical, one test is whether the facts
alleged in the first charge, if proven, would suffice to support the second charge and vice-versa.
Sec. 5, Rule 120 provides the test to determine whether an offense necessarily includes or is
necessarily included in the other. What is considered for purposes of this test is the crime
alleged in the information.
Sec. 5, Rule 120: "An offense chargednecessarily includes the offense proved when some of
the essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,

when the essential ingredients of the former constitute or form part of those constituting the
latter.
REQUISITES RAISE THE DEFENSE OF DOUBLE JEOPARDY
1. A first jeopardy has attached prior to the second;
Requisites:
a.
b.
c.
d.
e.

A court of competent jurisdiction;


Valid complaint or information;
Arraignment;
Valid plea;
Defendant was acquitted or convicted or the case was dismissed or otherwise
terminated without the express consent of the accused.

2. The first jeopardy must have been validly terminated; and


3. The second jeopardy must be for the same offense or the second offense includes or is
necessarily included in the offense charged in the first information, or is an attempt to
commit the same or a frustration thereof.
Exceptions:
a. When the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;
b. When the facts constituting the graver charge became known or were discovered only after
a plea was entered in the former complaint or information.
c. When 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 party failed to appear at
the arraignment despite due notice.
PROVISIONAL DISMISSAL
(SEC. 8)
General Rule:
A dismissal with the expressconsent of the accused will not bar the prosecution of the same
offense because such consent is considered a valid waiver of his right against double jeopardy.
Exception:
A dismissal that is tantamount to anacquittal includes those that are made on grounds, such
as:
a. Insufficiency of evidence of the prosecution
b. Denial of the right to speedy trial and disposition of the case.

Requisites
1. There must be a motion by the prosecution with the express conformity of the accused
or by the accused himself or by both the prosecution and the accused for a provisional
dismissal of the case.
2. The offended party is notified of the motion for a provisional dismissal of the case.
3. The court issues an order granting the motion and dismissing the case provisionally.
4. The public prosecutor is served with a copy of the order of provisional dismissal of the
case.
NOTE: If a case is provisionally dismissed with theconsent of the prosecutor and the offended
party, the failure to reinstate it within the given period will make the dismissal permanent.
It is only when the 1st paragraph of Sec. 8 have been complied with that the 2nd paragraph
comes into play. Also, although said 2nd paragraph provides that the order of provisional
dismissal becomes permanent after the lapse of the periods stated therein without the case
having been revived, it should be construed to mean that the period shall commence to run
after service of the order upon the public prosecutor who has control of the prosecution. The
case may be revived by the State within the time-bar either: (a) by refiling of the information; or,
(b) by the filing of the new information for the same offense necessarily included therein. No
new preliminary investigation is needed, except when the original prosecution witnesses have
emerged; or where other persons are charged under a criminal complaint; or where either the
original charge or the criminal liability of the accused has been upgraded (Regalado citing
People, et al. v. Lacson, G.R. No. 149453, Resolution of Motion for Reconsideration, 1 April 2003).
PERIOD OF REINSTATEMENT
Offenses punishable by imprisonment not exceeding 6-years One Year.
Offenses punishable by imprisonment exceeding 6-years Two Years.

Otherwise, the dismissal shall be removed from being provisional and becomes permanent.
NOTE: The state may revive a criminal case beyond
provided there is a justifiable reason for the delay.

the one-year or two-year periods

Failure to move to quash or to allege any ground therefore


General Rule:
If the accused does not move toquash the complaint or information before he pleads thereto, he
shall be taken to have waived all objections which are grounds for a motion to quash.
Exceptions:
When the complaint or information:
a. Charges no offense
b. Trial Court has no jurisdiction over the offense charge

c. The penalty or the offense has been extinguished


d. Double Jeopardy has attached.
FAILURE TO MOVE TO QUASH OR TO
ALLEGE ANY GROUND THEREOF
(SEC. 9)
The failure of the accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of any objections except those based on the
grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule.
RULE 118
PRE-TRIAL
MATTERS TO BE CONSIDERED
DURING PRE-TRIAL
(SEC. 1)
1. Plea bargaining;
2. Stipulation of Facts;
3. Marking for identification of evidence of parties;
4. Waiver of objections to admissibility of evidence;
5. Modification of the order of the trial if one of the accused admits the charge but
interposes a lawful defense (reverse trial); and
6. Such other matters as will promote a fair and expeditious trial of the civil and criminal
aspects of the case (Sec. 1).
NOTE: During the preliminary conference, theBranch COC shall assist the parties in reaching
a settlement of the civil aspect of the case, mark the documents to be presented as exhibits and
copies thereof attached to the records after comparison, ascertain from the parties the
undisputed facts and admissions on the genuineness and due execution of documents marked
as exhibits and consider such other matters as may aid in the prompt disposition of the case.
The proceedings during the preliminary conference shall be recorded in the Minutes of
Preliminary Conference to be signed by both parties and counsel.
The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch COC
to the case record before the pre-trial.
Pre-trial is mandatory in all criminal cases
PRE-TRIAL IN
CRIMINAL CASES
The accused is
merely required to
sign the written
agreement arrived
at in the pre-trial

PRE-TRIAL IN
CIVIL CASES
The presence of
the defendant is
required, unless he
is duly represented
at the pre-trial

conference if he is
in
conformity
therewith.
Unless otherwise
required by the
court, his personal
presence at the
conference therefor
is
not
indispensable.

The presence of
the
private
offended party is
not
required.
Instead, he is prior
required to appear
at the arraignment
of the accused for
purposes of plea
bargaining,
determination
of
civil liability, and
other
matters
requiring
his
presence. In case
of failure of the
offended party to
appear despite due
notice, the court
may
allow
the
accused to enter a
plea of guilty to a
lesser
offense
which
is
necessarily
included in the
offense
charged
with
the
conformity of the
trial
prosecutor
alone.
In unexcused nonappearance
of
either counsel at
the pre-trial, the
sanctions
are

conference by his
counsel with the
requisite authority
to enter into a
compromise
agreement, failing
in either of which
the
case
shall
proceed as if the
defendant
had
been declared in
default.
The presence of
the
plaintiff
is
required
unless
excused therefrom
for valid cause or if
he is represented
therein
by
a
person
fully
authorized
in
writing to perform
the acts specified
in Sec. 4, Rule 18.
Absent
said
justifications, the
case
may
be
dismissed with or
without prejudice.

For
their
nonappearance or lack
of
due
representation at
the pre-trial of a

imposed on said
counsel for the
accused or the
prosecutor.
The Rules do not
require the filing of
a pre-trial brief but
only require the
attendance at a
pre-trial
conference
to
consider
the
matters stated in
Sec. 2, Rule 118.

civil
action,
sanctions
are
imposed on the
parties to the case.
A
pre-trial
is
required with the
particulars and the
sanctions provided
by Sec. 6, Rule 18.

DUTY OF THE COURT WHEN THE PROSECUTOR AND THE OFFENDED PARTY AGREE
TO THE
PLEA
THE ACCUSED
A.M.
No. OF
03-1-09-SC
A.M No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES
AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION DISCOVERY MEASURES
1. Before arraignment, the Court shall issue an order directing the public prosecutor to
submit the record of the preliminary investigation to the Branch COC for the latter to
attach the same to the record of the criminal case.
2. Where the accused is under preventive detention, his case shall be raffled and its
records transmitted to the judge to whom the case was raffled within three days from
the filing of the complaint or information. The accused shall be arraigned within ten
days from the date of the raffle. The pre-trial of his case shall be held within ten days
after arraignment unless a shorter period is provided for by law.
3. After the arraignment, the court shall forthwith set the pre-trial conference within
thirty days from the date of arraignment, and issue an order: (a) requiring the private
offended party to appear thereat for purposes of plea-bargaining except for violations of
the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his
presence;12 (b) referring the case to the Branch COC, if warranted, for a preliminary
conference to be set at least three days prior to the pre-trial to mark the documents or
exhibits to be presented by the parties and copies thereof to be attached to the records
after comparison and to consider other matters as may aid in its prompt disposition;
and (c) informing the parties that no evidence shall be allowed to be presented and
offered during the trial other than those identified and marked during the pre-trial
except when allowed by the court for good cause shown. A copy of the order is hereto
attached as Annex "E".

In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for
purposes of mediation if available.
4. During the preliminary conference, the Branch COC shall assist the parties in
reaching a settlement of the civil aspect of the case, mark the documents to be
presented as exhibits and copies thereof attached to the records after comparison,
ascertain from the parties the undisputed facts and admissions on the genuineness
and due execution of documents marked as exhibits and consider such other matters
as may aid in the prompt disposition of the case. The proceedings during the
preliminary conference shall be recorded in the Minutes of Preliminary Conference to
be signed by both parties and counsel. (Please see Annex "B")
The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
5. Before the pre-trial conference the judge must study the allegations of the information, the
statements in the affidavits of witnesses and other documentary evidence which form part
of the record of the preliminary investigation.
6. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of
2002, the trial judge shall consider plea-bargaining arrangements. Where the prosecution
and the offended party agree to the plea offered by the accused, the court shall:
a. Issue an order which contains the plea bargaining arrived at;
b. Proceed to receive evidence on the civil aspect of the case; and
c. Render and promulgate judgment of conviction, including the civil liability or
damages duly established by the evidence.
7. When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings,
confirm markings of exhibits or substituted photocopies and admissions on the
genuineness and due execution of documents and list object and testimonial
evidence;
b. Scrutinize every allegation of the information and the statements in the affidavits
and other documents which form part of the record of the preliminary investigation
and other documents identified and marked as exhibits in determining farther
admissions of facts, documents and in particular as to the following:
1.
2.
3.
4.
5.
6.
7.
8.

the identity of the accused;


court's territorial jurisdiction relative to the offense/s charged;
qualification of expert witness/es;
amount of damages;
genuineness and due execution of documents;
the cause of death or injury, in proper cases;
adoption of any evidence presented during the preliminary investigation;
disclosure
of defences of alibi, insanity, self-defense, exercise of public
authority and justifying or exempting circumstances; and

9. such other matters that would limit the facts in issue.


c. Define factual and legal issues;
d. Ask parties to agree on the specific trial dates and adhere to the flow chart
determined by the court which shall contain the time frames for the different stages
of the proceeding up to promulgation of decision and use the time frame for each
stage in setting the trial dates;
e. Require the parties to submit to the Branch COC the names, addresses and contact
numbers of witnesses that need to be summoned by subpoena; and
f.

Consider modification of order of trial if the accused admits the charge but
interposes a lawful defense.

8. During the pre-trial, the judge shall be the one to ask questions on issues raised
therein and all questions must be directed to him to avoid hostilities between parties.
9. All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel, otherwise, they cannot be
used against the accused. The agreements covering the matters referred to in Section 1
of Rule 118 shall be approved by the court (Section 2, Rule 118).
10. All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties and/or their counsels.
11. The trial judge shall issue a Pre-trial Order within ten (10) days after the termination of
the pre-trial setting forth the actions taken during the pre-trial conference, the facts
stipulated, the admissions made, evidence marked, the number of witnesses to be
presented and the schedule of trial. Said Order shall bind the parties, limit the trial to
matters not disposed of and control the course the action during the trial.
PLEA BARGAINING
The disposition of criminal charges by agreement between the prosecution and the accused,
sometimes called plea bargaining is to be encouraged. If every criminal charge were subjected
to a full-scale trial, the Government would need to multiply by many times the number of
judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a
highly desirable part for many reasons. It leads to prompt and largely final disposition of most
criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial
confinement for those who are denied release pending trial; it protects the public from those
accused persons who are prone to continue criminal conduct even while on pre-trial release;
and by shortening the time between charge and disposition, it enhances whatever may be the
rehabilitative prospects of the guilty when they are ultimately imprisoned.
This phase of the process of criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to insure the defendant what is

reasonably due in the circumstances. Those circumstances will vary, but a constant factor in
that when a plea rests in any significant degree on a promise or agreement of the prosecutor so
that it can be said to be part of the inducement or consideration, such promise must be
fulfilled (Herrera citing Santobello v. New York, 404 U.S.257, 92 S. Ct. 495, 30 L. Ed 2d 427
[1971]).
NOTE: Plea bargaining is not allowed under theDangerous Drugs Acts where the imposable
penalty for the offense charged is reclusion perpetua to death (Sec. 18, R.A. 7659).
PRE-TRIAL AGREEMENT
(SEC. 2)
All agreements or admissions made or entered into during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel; otherwise the same shall not be
used in evidence against the accused.
Requisites before the pre-trial agreement can be used as evidence:
1. Must be reduced in writing
2. The pre-trial agreement is signed by the accused and his counsel.
NOTE: It is required that the accused also sign thestipulation of facts to further safeguard his
right against improvident or unauthorized agreement or admission which his counsel may have
entered into without his knowledge.
NON-APPEARANCE DURING PRE-TRIAL
(SEC. 3)
General Rule:
The accused is not the one compelled to appear but only his counsel or the prosecutor.
Effect of Non-appearance during the Pre - Trial
If the counsel for the accused or the prosecutor does not appear at the pre - trial conference
and does not offer an acceptable excuse for his lack of cooperation, the court may impose
proper sanctions or penalties in the form of reprimand, fines or imprisonment (Sec. 3)
The court can only impose sanctions for non - appearance on counsel or the prosecutor, not on
the accused. The reason why the accused is not required to appear is that to include him
among the mandatory parties might violate his constitutional right to remain silent.
PRE-TRIAL ORDER
(SEC. 4)

It is an order issued by the court reciting the actions taken, the facts stipulated and the
evidence marked during the pre - trial conference. Such order binds the parties and limits the
trial to those matters not disposed of.
After the pre-trial, the court issues an order reciting what has been taken, and thereafter the
trial on the merits will proceed on matters not disposed of during the pre-trial.
Where a plea of not guilty is entered, the accused shall have at least 15-days to prepare for trial
which shall commence within 30-days from receipt of pre-trial order.
After the pre-trial, the court issues an order reciting actions taken, facts stipulated and
evidence marked, and thereafter the trial on the merits will proceed on matters not disposed of
during the pre-trial.
To prevent manifest injustice, however, the pre-trial order may be modified by the court upon
its own initiative or at the instance of any party.
NOTE: The trial judge shall issue a Pre-trial Orderwithin 10 days after the termination of the
pre-trial setting forth the actions taken during the pre-trial conference, the facts stipulated, the
admissions made, evidence marked, the number of witnesses to be presented and the schedule
of trial. Said Order shall bind the parties, limit the trial to matters not disposed of and control
the course the action during the trial (A.M No. 03-1-09-SC).
REFERRAL OF SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL
DISPUTE RESOLUTION
Court Annexed Mediation
As practiced in the Philippines, is an enhanced pre-trial procedure that involves settling
mediatable cases filed in court with the assistance of a mediator who has been accredited by
the Philippine Supreme Court. The mediator assists party litigants to identify issues and
develop proposals to resolve their disputes.
Process
Making mediation a part of Pre-trial also accounts for making the program work. Upon
appearance of the parties during pre-trial in cases covered by mediation, the Judge
immediately directs the parties to appear before the Mediation Center unit located in the
courthouse. This referral is mandatory. If Mediation succeeds, a Compromise Agreement signed
by the parties and counsel is furnished the court. If mediation fails, the case is returned to the
court which shall then set the case for resumption of pre-trial and thereafter, to try and decide
the case on its merits.
A.M. No, 11-1-6-SC-PHILJA

Re: 'Consolidated and Revised Guidelines to Implement the Expanded Coverage of CourtAnnexed Mediation [CAM] and Judicial Dispute Resolution [JDR]
Issued on 11 January 2011
Concept of court diversion of pending cases
The diversion of pending court cases both to Court-Annexed Mediation (CAM) and to Judicial
Dispute Resolution (JDR) is plainly intended to put an end to pending litigation through a
compromise agreement of the parties and thereby help solve the ever-pressing problem of court
docket congestion. It is also intended to empower the parties to resolve their own disputes and
give practical effect to the
State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285), to wit:
to actively promote party autonomy inthe resolution of disputes or the freedom of the
parties to make their own arrangement to resolve disputes. Towards this end, the State
shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial justice and de-clog court dockets.
The Three Stages of Diversion
Simply stated, court diversion is a three-stage process.
The first stage is the Court-Annexed Mediation(CAM) where the judge refers the parties to
thePhilippine Mediation Center (PMC) for the mediation of their dispute by trained and
accredited mediators.
Upon failing to secure a settlement of the dispute during the first stage, a second attempt is
made at the JDR stage. There, the JDR judge sequentially becomes a mediator-conciliator-early
neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt,
the mediator-judge must turn over the case to another judge (a new one by raffle or
nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pretrial proper and, thereafter, proceed to try and decide the case.
The third stage is during the appeal where covered cases are referred to the PMC-Appeals
Court Mediation (ACM) unit for mediation.
The ultimate common end of both the Katarungang Pambarangay Law and CourtAnnexed Mediation is to restore the role of the judiciary as the forum of last recourse to be
resorted to only after all prior earnest efforts to arrive at private accommodation and resolution
of disputes have failed.
Mandatory Coverage for Court-Annexed Mediation (CAM) and Judicial Dispute
Resolution (JDR)
1. The following cases shall be referred to Court-Annexed Mediation (CAM) and be the
subject of Judicial Dispute Resolution (JDR) proceedings:

a. All civil cases and the civil liability of criminal cases covered by the Rule on
Summary Procedure, including the civil liability for violation of B.P. 22, except
those which by law may not be compromised;
b. All civil and criminal cases filed with a certificate to file action issued by the
PunongBarangay or the PangkatngTagapagkasundo under the
Revised
Katarungang Pambarangay Law.
c. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;
d. The civil aspect of less grave felonies punishable by correctional penalties not
exceeding 6 years imprisonment, where the offended party is a private person;
e. The civil aspect of estafa, theft and libel;
2. The following cases shall not be referred to CAM and JDR:
a. Other criminal cases not covered under (b) to (e) above;
b. All cases under R.A. No. 9262 (Violence against Women and Children);
c. Cases with pending application for restraining orders/preliminary injunctions.
However, in cases covered under b and c where the parties inform the court that they have
agreed to undergo mediation on some aspects thereof, e.g., custody of minor children,
separation of property, or support pendente lite.

Rule 119 Trial


TRIAL FLOWCHART

Pre-trial order

No
Accused brought to trial within the time limit prescribed?File for motion to dismiss on the ground of denial of right to speedy trial

Yes
Prosecution presents evidence to prove the charge

Yes

ile motion for conditional examination of witnesses for prosecution?


Issue order of examination before the court where the case is pending

No
Accused presents evidence to prove his defense

Yes

Issue order of examination by any judge or member of the bar

otion for conditional examination of witnesses in behalf of the accused?

No
Prosecution presents rebuttal evidence

Defense presents sur-rebuttal evidence


With leave of court
Evidence sufficient?

No

File demurrer to evidence

Yes
Granted?
Dismiss the case on the ground of insufficiency o

Without leave of court


No
Yes
cused waives the right to present evidence and submits the case for judgment on the basis of the evidence of the prosecution
Accused may adduce evidence in his defense
Case submitted for decision

Accused is not discharged if there appears a good cause to detain him


Is there a mistake in charging the proper offense?
Yes

No
Dismiss
caseoffense?
upon filing of the proper information
Offense charged includes/necessarily included
on thethe
proper
No

Yes
Conduct another PI and arraignment to the new informatio
If judgment is for conviction, convict accused of the lesser offense, ie. that which is included in the offense charged or approved
JUDGMENT

RULE 119
TRIAL

The examination before a competent


tribunal according to the laws of the land,
of the facts put in issue in a case for the
purpose of determining such issue.

After a plea of not guilty is entered, the


accused shall have at least 15 days to
prepare for trial. The trial shall commence
within 30 days from receipt of pre - trial
order. Denial of right to prepare is reversible
error; the proper remedy from a judgment of
conviction under such case is appeal and
not certiorari nor habeas corpus (Montilla
v.Arellano, GR No. 123872, 30 January
1998).
Continuous Trial System
Trial once commenced shall continue from
day to day as far as practicable until
terminated. It may be postponed for a
reasonable period of time for good cause.
The entire trial period shall in no case
exceed 180 days from the first day of trial,
except as otherwise provided by the SC (Sec.
2).
The SC adopted the continuous trial system
as a mode of judicial fact - finding and
adjudication conducted with speed and
dispatched so that trials are held on the
scheduled dates without postponement, the
factual issues for a trial well defined at pre trial and the whole proceedings terminated
and ready for judgment within 90 days from
the
date
of
initial
hearing,unless
formeritorious reasons an extension is
permitted.
The non - appearance of the prosecution at
the trial, despite due notice, justifies a
provisional dismissal or an absolute
dismissal
depending
upon
the
circumstances.
Cases where
inapplicable

the

time

limitation

is

1. Criminal cases covered by the Rule on


Summary Procedure (penalty does not
exceed 6 months imprisonment or a
fine of P1,000).

2. When the offended party is about to


depart with no definite date of
return.
3. Child abuse cases.
4. Violations of Dangerous Drugs Law.
5. Kidnapping, robbery by a band,
robbery against banking or financial
institution, violation of Carnapping
Act and other heinous crimes.
Instances when the presence of the
accused is required by law
Under the Rules of Court, the accused has
to be present:
1. At the arraignment (Sec. 1[b], Rule
116);
2. At the promulgation of judgment,
except when conviction is for a light
offense, in which case the judgment
may be pronounced in the presence
of his counsel or representative (Sec.
6, Rule 120), or unless promulgation
inabsentia is allowed (par. 3, Sec. 6,
Rule 120); and
3. When the prosecution intends to
present witnesses who will identify
the accused.
REQUISITES BEFORE A TRIAL COURT
CAN BE SUSPENDED ON ACCOUNT OF
THE ABSENCE OF A WITNESS
1. That the witness is material and
appears to the court to be so;
2. That the party who applies has been
guilty of no neglect;
3. That the witnesses can be had at the
time to which the trial is deferred
and no similar evidence could be
obtained;
4. That an affidavit showing the
existence of the above circumstances
must be filed.
Q: May the Court require a witness to
post bail? Explain your answer.(BAR
1999)

A: Yes. The court may require a witness to


post bail if he is a material witness and bail
is needed to secure his appearance. The
rules provide that when the court is
satisfied, upon proof or oath, that a material
witness will not testify when required, it may,
upon motion of either party, order the
witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the
court shall commit him to prison until he
complies or is legally discharged after his
testimony is taken. (Sec. 6, Rule 119)
Factors for Granting Continuance
1. Whether
the
failure
to
grant
continuance
would
make
a
continuation of the proceeding
impossible or result in a miscarriage
of justice.
2. Whether the case, as a whole, is
novel, unusual and complex, or it is
unreasonableto
expect
adequate
preparation within the periods of
time established therein (Sec. 4).
The grant of a motion for continuance is not
a matter of right. The purpose of this rule is
to control the discretion of the judge in the
grant of continuance on his instance or on
motion of any party litigant.
TRIAL IN ABSENTIA
The requisites of a valid trial in absentia
under Sec. 14(2), Art. III of the 1987
Constitution are:
1. the accused has already been
arraigned;
2. he has been duly notified of the
trial; and
3. his failure to appear is unjustifiable.
Effects of Trial in Absentia

The accused waives the right to present


evidence and cross - examine the
witnesses against him.
The accuseds waiver does not mean,
however, that the prosecution is deprived
of the right to require the presence of the
accused for purposes of identification by
the witnesses which is vital for conviction
of the accused, except where he has
unqualifiedly admits in open court after
his arraignment that he is the person
named as defendant in the case on trial.
The
provision
of
the
Constitution
authorizing the trial in 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.
Such waiver of a right of the accused does
not mean a release of the accused from his
obligation under the bond to appear in
court whenever so required. The accused
may waive his right but not his duty or
obligation to the court (Remedial Law,Vol.
IV (Criminal Procedure), Oscar Herrera).
Upon the termination of a trial in absentia,
the court has the duty to rule upon the
evidence presented in court.
REMEDY WHEN THE ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PERIOD PRESCRIBED
BY THE RULES OF COURT
(SEC. 9)
If the accused is not brought to trial within
the time limit required by Section 1(g),
Rule 116 and Section 1, as extended by
Section 6 of this rule, the information may
be dismissed on motion of the accused on
the ground of denial of his right to speedy
trial. The accused shall have the burden of

proving the motion but the prosecution shall


have the burden of going forward with the
evidence to establish the exclusion of time
under section 3 of this Rule. The dismissal
shall be subject to the rules on double
jeopardy.
Failure of the accused to move for dismissal
prior to trial shall constitute a waiver of the
right to dismiss under this section. (Sec. 9).
State Witness
He is one of two or more persons jointly
charged with the commission of a crime but
who is discharged with his consent as such
accused so that he may be a witness for the
state.
REQUISITES OF DISCHARGE BEFORE AN
ACCUSED MAY BECOME A
STATE WITNESS
(SEC. 17)
The rule relative to the right of the
government prosecutor to utilize a person
who has participated in the commission of a
crime as a witness for the prosecution, is as
follows:
1. When an offense is committed by
more than one person, it is the duty
of the fiscal to include all of them in
the complaint or information;
2. If the fiscal desires to utilize one of
those charged with the offense as a
government witness, the fiscal may
ask the court to discharge one of them
after complying with the conditions
prescribed by law;
3. There is nothing in the rule from
which it can be inferred that before a
person can be presented as a
government witness that he be first
included as a co-accused in the

information, for the fiscal is free to


produce as a witness anyone whom
he believes can testify to the truth of
the crime charged; and
4. The
failure
to
follow
the
requirements of the rule relative to
the use of a person, himself
particeps criminis, as a government
witnessdoes not violate the due
process of the Constitution, nor
render his testimony ineffectual if
otherwise competent and admissible
(Remedial
Law,
Vol.
IV
(CriminalProcedure), Oscar Herrera
citing cases).
There is no need to allege all the
elements of the offense in a motion to
discharge. The motion to discharge will
suffice if the allegations contained
therein adequately inform the adverse
party and the court a quo what relief
the movant is praying for. The only
requirement therefor was that a hearing
on the motion be had. It is at the
hearing where the movant should show
the presence of all the elements required
by the rule for the discharge of an
accused to be a state witness. A trial
type hearing is not, however required as
along as both litigants are able to
present their side (Remedial Law, Vol. IV
(CriminalProcedure), Oscar Herrera).
Requisites
Before the discharge can be effected, the
court should
1. Require the prosecution to present
evidence and the sworn statement
of each proposed state witness at a
hearing in support of the discharge
2. Require
submission
of
sworn
statement of each proposed witness
at a hearing in support of the

discharge and ascertain if


conditions under Sec. 17
complied with, namely:

the
are

a. There is absolute necessity for the


testimony of the accused whose
discharge is requested;
b. There is no other direct evidence
available
for
the
proper
prosecution
of
the
offense
committed, except the testimony
of said accused;
c. The testimony of said accused
can be substantially corroborated
in its material points;
d. Said accused does not appear to
be the most guilty; and
e. Said accused has not at any time
been convicted of any offense
involving moral turpitude.
The trial court should hold in abeyance or
defer its resolution on the motion until
after the prosecution has presented all its
other evidence (Flores v. Sandiganbayan,
L-63677,August 12,1983, 124 SCRA 109).

R.A NO. 6981


The offense in
which
the
testimony is to be
used is limited
only
to
grave
felony

The witness is
automatically
entitled to certain
rights
and
benefits

The
witness
so
discharged
must
still apply for the
enjoyment of said
rights and benefits
in the DOJ

He is charged in
The witness need
court as one of the
not be charged
accused as stated
elsewhere
in the information
The charges against
No
information
him
shall
be
may thus be filed
dropped and the
against
the
same operates as
witness
an acquittal
Meaning of absolute necessity
In coming to his conclusions as to the
necessity for the testimony of the accused
whose discharge is requested, as to the
availability or non-availability of other
direct or corroborative evidence; as to
which of the accused is the most guilty
one; and the like, the judge must rely in
large part upon the suggestions and the
information furnished by the prosecuting
officer (Chua v. Court ofAppeals, G.R. No.
103397, 28 August 1996)

SEC. 17,
RULE 119
RULES OF COURT

EFFECTS OF ORDER DISCHARGING


THE
ACCUSED AS A STATE WITNESS
(SEC. 18)

It
has
qualifications;
applies
top
felonies

no
it
all

The immunity is
The immunity is
granted
by
the
granted by DOJ
court

1.

Evidence adduced in support of the


discharge shall automatically form part
of the trial.
If the court denies the motion for
discharge of the accused as state
witness, his sworn statement shall be
inadmissible in evidence.

2. Discharge of the accused operates as


an acquittal and bar to further
prosecution for the same offense.
Exceptions:
1. Unless accused fails or refuses to
testify against his co-accused in
accordance with his sworn statement
constituting
the
basis
of
his
discharge.
2. Failure to testify refers exclusively to
defendants will or fault.
3. Extrajudicial
confession;
Admissibility: where an accused who
turns States evidence on a promise
of immunity but later retracts and
fails to keep his part of the
agreement, his confession of his
participation in the commission of
the crime is admissible as evidence
against him.
4. Once discharged even if one or all of
the conditions required for his
discharge did not really exist, that
fact does not affect the legal
consequences of the discharge and
the admissibility and credibility of his
testimony if otherwise admissible and
credible.
Erroneous or improper discharge of state
witness does not affect the competency and
quality of the testimony of the discharge
defendant. Before arraignment, Rule 110,
Sec. 4 is the applicable rule for discharge of
an accused as state witness under R.A. 6981
(Witness Protection, Security andBenefit
Program) and not Sec. 17 of this
Rule(Herrera citing Soberano v. CA, G.R. No.
154629, 5 Oct. 2005).
Amended
information
are
not
new
information but a continuation of the
previous one, so that a discharge under the
original information is just as binding upon
the
subsequent
amended
information
(People v. Taruc, G.R. No. L-14010, May 30,
1962, 5 SCRA 132).

Discharge under this rule is only one of


the modes to be a state witness.
Other modes are:
1. The Witness Protection Program of
R.A. 6981;
2. The power of the Ombudsman to
grant immunity under Section 17 of
RA 6770.
DEMURRER TO EVIDENCE
(SEC. 23)
It is an objection by one of the parties in
an action, to the effect that the evidence
which
his
adversary
produced
is
insufficient in point of law, whether true or
not, to make out a case or sustain the
issue. After the prosecution rests its case,
the court may dismiss the action on the
ground of insufficiency of evidence:
1. On its own initiative after giving the
prosecution the opportunity to be
heard;
2. Upon demurrer to evidence filed by the
accused with or without leave of court.
Purposeof leaveof court in demurrer to
evidence
The purpose for obtaining leave of court is
to determine whether or not the
defendant in a criminal case has filed the
demurrer merely to stall the proceedings
(People v. Mahinay, GR No.109613, 17
July 1995).
Q: In an action for violation of Batas
Pambansa Big. 22, the court granted the
accuseds demurrer to evidence which he
filed without leave of court. Although he
was acquitted of the crime charged, he,
however, was required by the court to pay
the private complainant the face value of
the check. The accused filed a Motion of
Reconsideration regarding the order to pay

the face value of the


check
on
the
following grounds:
a) the demurrer to
evidence
applied
only to the criminal
aspect of the case;
and
b) at the
very
least,
he
was
entitled to adduce
controverting
evidence on the civil
liability. Resolve the
Motion
for
Reconsideration.
(BAR 2003)

MOTION TOQUASH

DEMURRER
TOEVIDENCE

Filed
before
the Filed
after
defendant enters his prosecution
plea
rested its case
Does not go into the
merits of the case
but is anchored on
matters not directly
related
to
the
question of guilt or
innocence
of
the
accused
Governed
117

by

Based
upon
the
inadequacy
of the
evidence adduced by
the prosecution in
support
of
the
accusation

Rule Governed
119

A: (a) The Motion for Reconsideration should


be denied. The ground that the demurrer to
evidence applied only to the criminal aspect
of the case was not correct because the
criminal action for violation of Batas
Pambansa Blg. 22 included
the
corresponding civil action. (Sec. 1(b) of Rule
111)
(b) The accused was not entitled to adduce
controverting evidence on the civil liability,
becausehe filed his demurrer to evidence
without leave of court.(Sec. 23 of Rule 119)
Certiorari can be properly resorted to where
the factual findings complained of are not
supported by the evidence on record.

the
has

by

Rule

RULE 120
RULE 120
JUDGMENT
Judgment Flowchart

JUDGMENT

State whether:
Evidence absolutely failed to prove guilt
Evidence failed to prove guilt beyond reasonable doubt
Determine if act or omission which liability that might arise did not exist
Acquittal

Conviction

State:
Legal qualification
Participation of the accused
Penalty imposed
Civil liability

Read the promulgation in the presence of accused and any judge of the court in which
YES
Accused appeared during promulgation?

NO

Record judgment in the criminal docket


Serve accused a copy of the judgment

NO
Absence was without justifiable cause?
Accused allowed availing of the remedies

YES
Accused loses the remedies available and the court shall order his arrest

on which they are based. The rationale is


that the losing party is entitled to know
why he lost, so he may appeal to a higher
court.
The judge who penned the decision need
not be the one who heard the case. The
judge can rely on the transcript of
stenographic notes taken during the trial.
CONTENTS OF JUDGMENT
(SEC. 2)
REQUISITES OF A VALID JUDGMENT
(SEC. 1)
It is the adjudication by the court that the
accused is guilty or not guilty of the offense
charged and the imposition of the proper
penalty and civil liability, if any. It is a
judicial act which settles the issued, fixes
the rights and liabilities of the parties, and
is regarded as the sentence of the law
pronounced by the court on the action or
question before it.
1. Written in official language;
2. Personally and directly prepared
by the judge;
3. Signed by him.
Contains clearly and distinctly a statement
of the facts and the law upon which it is
based.
A verbal orderdoes not meet the requisites.
As such, it can e rescinded without
prejudicing the rights of the accused. It has
no legal force and effect. If the judgment is
not put in writing, the proper remedy would
be to file a petition for mandamus to compel
the judge to put in writing the decision of
the court.
Article VIII, Section 14, Par. 1 of the
Constitution equires that the decisions of
the court shall contain the facts and the law

If the judgment is of CONVICTION, it


shall state:
1. the legal qualification of the offense
constituted by the acts committed
by the accused and the aggravating
or mitigating circumstances which
attended its commission;
2. the participation of the accused in
the offense, whether as principal,
accomplice, or accessory after the
fac
3. the penalty imposed upon the
accused; and
4. the civil liability or damages caused
by his wrongful act or omission to
be recovered from the accused by
the offended party, if there is any,
unless the enforcement of the civil
liability by a separate civil action
has been reserved or waived.
If the judgment is one of ACQUITTAL, it
must state:
1. Whether the evidence of the
prosecution absolutely failed to
prove the guilt of the accused or
merely failed to prove the guilt his
guilt beyond reasonable doubt.
2. In EITHER CASE, the judgment
shall determine if the act or
omission from which the civil
liability might arise did exist.

Trial courts should not merely reproduce


everything testified to by the witness no
matter how unimportant and immaterial it
may be, even if this might lighten their work.
Judges should make an effort to sift the
record and relieve it of all inconsequential
matters, to give them a clearer view of the
real questions to be resolved and a better
idea of how this resolution should be done
(People v. Molina, G.R. No. 70008, 26
April1990).
Without the independent assessment of the
evidence an order of the court approving or
rejecting
the
motion
to
dismiss
recommended by the Secretary of Justice is
void (Ledesma v. CA,G.R. No. 113216,
September 5, 1997, 278 SCRA 656).
Acquittal in a criminal case does not bar
continuation of the civil case connected
therewith where:
a. the acquittal is based on reasonable
doubt;
b. the decision contains a declaration
that the liability of the accused is not
criminal but only civil; or
c. the civil liability is not derived from or
based on the criminal act of which the
accused is acquitted (Sadio v. Hon.
RTC ofAntique, G.R. No. 94143, 24
Sept. 1991).
A judgment of acquittal which fails to make
an award of civil liability is appealable.
PROMULGATION OF JUDGMENT
(SEC. 6)
It
is
the
official
proclamation
or
announcement of judgment. It consists of
reading the judgment or sentence in the
presence of the accused and any judge of the
court rendering the judgment.

Rule on Promulgation of Judgment


Judgment
must
be
rendered
and
promulgated during the incumbency of the
judge who signed it. The judgment must
be read in its entirety for double jeopardy
to attach.
The
presence
of
counsel
during
promulgation is not necessary (Sec. 6.)
INSTANCES
ABSENTIA

OF

PROMULGATION

IN

1. Judgment is for a light offense, in


which
case
judgment
may
be
promulgated in the presence of the
counsel for the accused or a
representative.
2. Accused
fails
to
attend
the
promulgation despite due notice or if he
jumped bail or escaped from prison.
Notice must be given to the bondsmen,
warden, accuseds bailor and counsel.
Promulgation in Absentia Conducted
Promulgation shall be made by recording
the judgment in the criminal docket and
serving the accused a copy thereof at his
last known address or through his
counsel. If judgment is one of conviction
and the accused is absent without
justifiable cause, the court shall order his
arrest and he shall lose the remedies
available in the rules against judgment
and his bail shall be forfeited.
However, the accused may surrender and
file a motion for leave of court to avail of
these remedies within 15 days from the
promulgation of judgment. If such motion
is granted, he may avail of these remedies
within 15 days from notice of such order
granting the motion (Sec. 6).

Essential elements for promulgation in


absentia to be valid:
1. The judgment is recorded in the
criminal docket; and
2. A copy thereof shall be served upon
the accused or counsel.
NOTE: The presence of the accused in
thepromulgation of judgment is mandatory.
Exception:
1. Conviction for light offense;
2. Failure of the accused to be present
or promulgation in absentia;
3. In case of acquittal since it is
immediately executory and no appeal
is necessary.
WHEN JUDGMENT BECOMES FINAL
(SEC. 7)
1. When the period for perfecting an
appeal has lapsed;
2. When the sentence is partially or
totally satisfied or served;
3. When the accused expressly waives
in writing his right to appeal; and,
4. When the accused applies for
probation.
A judgment of acquittal becomes final
immediately after promulgation and cannot
be recalled for correction or amendment.
Any modification thereof will result in double
jeopardy.
The prosecutor cannot ask for the
modification or setting aside of judgment of
conviction because the rules clearly provide
that a judgment of conviction may be
modified or set aside by the court rendering
upon motion of the accused.

The trial court can validly amend the civil


portion of its decision within 15 days from
promulgation thereof even though the
appeal had in the meantime already been
perfected by the accused from judgment of
conviction.
Reason:
The
court
continues
to
retainjurisdiction insofar as the civil aspect
is concerned.
Instances where
the
trial
court
may lose jurisdiction over the judgment
even before the lapse of 15 days
1. When the defendant voluntarily
submits to the execution of the
judgment;
2. When the defendant perfects his
appeal;
3. When the accused withdraws his
appeal;
4. When the accused expressly
waives in writing his right to
appeal;
5. When the accused files a petition
for probation;
Entry of Judgment Made
The recording of the judgment or order
in the book of entries of judgments shall
constitute its entry. The record shall
contain the dispositive part of the
judgment order and shall be signed by
the clerk, with a certificate that such
judgment or order has become final and
executory (Sec. 2,Rule 36).
The payment of the fine imposed by the
court constitutes satisfaction of the
judgment, hence the judgment thereby
becomes final except where the court
specifically reserved its findings on a
particular issue.
The act of the accused in voluntarily
commencing to serve his sentence is

equivalent to a renunciation of his right to


appeal.
Modification of
Judgment
No new hearings or
proceedings of any
kind or change in
the
record
or
evidence. A simple
modification
is
made on the basis
of what is on
record.

New trial
Irregularities
are
expunged from the
record and/or new
evidence
is
introduced.

RULE 121
NEW TRIAL OR RECONSIDERATION
Requisites
foramotionfornewtrialor
reconsideration:
1. In writing;
2. Filed with the court;
3. State grounds on which it is based;
4. If the motion for new trial is based
on newly discovered evidence, it
must be supported by the affidavits
of the witness by whom such
evidence is expected to be given or
duly
authenticated
copies
of
documents which it is proposed to
introduce in evidence;
5. Notice of the motion for new trial or
reconsideration shall be given to the
fiscal;
A motion for a new trial or reconsideration
should be filed with the trial court within
15 days from the promulgation of the
judgment and interrupts the period for
perfecting an appeal from the time of its
filing until notice of the order overruling the
motion shall have been served upon the
accused or his attorney (Sec. 6, Rule 122.)
If an appeal has already been perfected, a
motion for new train on the ground of newly
discovered evidence may be filed in the
appellate court (Sec. 14, Rule 124.)

While the rule requires that an affidavit of


merits be attached to support a motion
for new trial based on newly discovered
evidence, yet the defect of lack of merit it
may be cured by the testimony under
oath of the defendant at the hearing of
the motion (Paredes v. Borja, GR No. L15559, 29 November 1961.)
New Trial
New trial may be granted at any time
before the judgment of conviction
becomes final:
1. On motion of the accused;
2. On motion of the court but with
the consent of the accused (Sec.
1);
The award of new trial or taking of
additional evidence rests upon the
sound discretion of the court. Once the
appeal is perfected, the court a quo loses
jurisdiction over it, except for the
purpose of correcting clerical errors and
the appellate court steps in. Should it
come to pass then that during the
pendency of the appeal, new and
material evidence have been discovered,
the accused may file a motion for new
trial with the appellate court.
NEW TRIAL
Rehearing of a case
already decided but
before the judgment
of
conviction
therein
rendered
has become final,
whereby errors of
law or irregularities
are expunged from
the record or new
evidence
is
introduced, or both
steps are taken.

RECONSIDERATION

May be filed in
order to correct
errors of law or fact
in the judgment. It
does not require
any
further
proceeding.

GROUNDS
a. Errors of
law
or irregularities
prejudicial
to
the substantial
rights
of the
accused
have
been committed
during the trial.
b. New
and
material
evidence
has
been discovered
which
the
accused could
not,
with
reasonable
diligence, have
discovered and
produced at the
trial and which
if
introduced
and
admitted
would probably
change
the
judgment (SEC.
2.)
OtherGrounds:

Negligence
or
incompetency of
counsel
or
mistake which
is
so
gross
amounting
to
deprivation
of
the substantial
rights of the
accused
and
due process;
Recantation of a
witness where
there
is
no
evidence
sustaining the
judgment
of
conviction other
than
the
testimony
of
such witness;
Improvident
plea of guilty
which may be
withdrawn;

a. Errors of law;
b. Errors of fact in
the
judgment
(SEC. 3)
The
principle
underlying this rule
is to afford the trial
court
the
opportunity
to
correct
its
own
mistakes and to
avoid unnecessary
appeals from being
taken. The grant by
the
court
of
reconsideration
should require no
further
proceedings, such
as
taking
of
additional proof.

Disqualification
of attorney de
officio
to
represent
accused in trial;

REOPENING

NEW TRIAL

Such is made by the


court
before
judgment
is
rendered, in the
exercise of sound
discretion.

Such is filed after


judgment
is
rendered but before
the finality thereof.

It does not require It is at the instance


the consent of the or with the consent
accused and may be of the accused.
at the instance of
the EITHER party
who can thereafter
present
additional
evidence.
The phrase during the trial under the
first ground refers to that period from
arraignment to the rendition of the
judgment and not only to the trial proper.
In the Court of Appeals, the Rules provide
that a motion for new trial may be filed on
the ground of newly discovered evidence
(Sec. 14, Rule 124). This does not mean,
however, that such is the only the ground
available therein as the appellate court has
the power to grant a new trial on other
grounds since the entire case is thrown
open to review, and it can even remand the
case to the trial court, not only for new
trial, but also for retrial (Sec. 11, Rule 124).
This differs from appeals in civil courts
wherein a motion for new trial in the
appellate courts can be premised only on
the ground of newly discovered evidence
(in civil actions on appeal, the review is
basically limited to the errors assigned by
the
appellant)
(Remedial
Law
Compendium, Florenz Regalado).

Requisites before a new trial may be


granted on the ground of newly
discovered evidence
1. That the evidence was discovered after
trial;
2. That such evidence could not have
been discovered and produced at the
trial even with the exercise of
reasonable diligence;
3. That it is material, not merely
cumulative,
corroborative
or
impeaching;
4. The evidence is of such a weight that
it
would
probably
change
the
judgment if admitted.
General rule: Mistakes or errors of counsel
in theconduct of his case are not grounds for
new trial. This rule is the same whether the
mistakes are the result of ignorance,
inexperience, or incompetence.
Exception: If the incompetence, ignorance
orinexperience of counsel is so great and the
error committed as a result thereof is so
serious that the client, who otherwise has a
good cause, is prejudiced and denied his day
in court, the litigation may be reopened to
give the client another chance to present his
case.
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
(SEC. 6)
a. When a new trial is granted on the
ground of errors of law or irregularities
committed during the trial, all the
proceedings
and
evidence
affected
thereby shall be set aside and taken
anew. The court may, in the interest of
justice, allow the introduction of
additional evidence.
b. When a new trial is granted on the
ground of newly-discovered evidence, the
evidence already adduced shall stand

and the newly-discovered and such


other evidence as the court may, in the
interest of justice, allow to be
introduced shall be taken
and
considered together with the evidence
already in the record.
c. In all cases, when the court grants new
trial or reconsideration, the original
judgment shall be set aside or vacated
and
a
new
judgment
rendered
accordingly.
Where a new trial has been granted, the
original judgment is vacated and the
case is reverted to its original status
before judgment, and where a new
judgment of conviction is rendered after
said new trial, the period to appeal
commences from the promulgation of
the new judgment.
The effect of granting a new trial is not
to acquit the accused of the crime of
which the judgment finds him guilty but
precisely to set aside said judgment so
that the case may be tried de novo as if
no trial had been had before.
Unlike the rule in civil cases, the remedy
of the aggrieved party being appeal in
due time, an order granting a new trial
rendered in criminal cases is also
interlocutory but is controllable by
certiorari or prohibition at the instance
of the prosecution.
Criminal Cases
An order granting
new is also trial
interlocutory but
is controllable by
certiorari
or
prohibition at the
instance of the
prosecution
(as
the
new
trial
might result in a
judgment
of

Civil Cases
An order granting
a new trial is
interlocutory and
NOT
appealable
and is generally
NOT correctable by
the special civil
actions
of
certiorari,
prohibition
or
mandamus.

acquittal
from
which
the
prosecution can
no longer appeal).

The remedy of the


aggrieved party is
appeal in due
time.

In trial courts, a second motion for


reconsideration of a final order or
judgment is not allowed (Par. 4, Interim
Rules and Guidelines). This rule is also
applicable in civil cases. In cases covered
by the Rule on Summary Procedure, a
motion for reconsideration is prohibited
(Sec. 15[c]).
NEYPES DOCTRINE IN CRIMINAL CASES
Under the case of Neypes v. CA (G.R. No.
141524, Sept. 14, 2005) after a party filed a
motion for new trial/reconsideration within
the period of filing an appeal which is 15
days AND then the motion was denied, the
party has a FRESH 15 day period to file his
appeal, counted from receipt of the order
denying said motion for reconsideration or
new trial.
In Yu v. Tatad (G.R. No. 170979, 9 Feb.
2011), the SC held that while Neypes
involved the period to appeal in civil cases,
the Courts pronouncement of a fresh
period to appeal should equally apply to the
period for appeal in criminal cases under
Section 6 of Rule 122 of the Revised Rules of
Criminal Procedure, for the following
reasons:
1. BP 129, as amended, the substantive
law on which the Rules of Court is
based, makes no distinction between
the periods to appeal in a civil case
and in a criminal case. Section 39 of
BP 129 categorically states that
*t+he period for appeal from final
orders,
resolutions,
awards,
judgments, or decisions of any court
in all cases shall be fifteen (15) days
counted from the notice of the final
order, resolution, award, judgment,
or decision appealed from.

2. The provisions of Section 3 of Rule


41 of the 1997 Rules of Civil
Procedure and Section 6 of Rule
122 of the Revised Rules of
Criminal
Procedure,
though
differently worded, mean exactly
the same. There is no substantial
difference
between
the
two
provisions insofar as legal results
are concerned the appeal period
stops running upon the filing of a
motion
for
new
trial
or
reconsideration and starts to run
again upon receipt of the order
denying said motion for new trial or
reconsideration.
It
was
this
situation that Neypes addressed in
civil cases. No reason exists why
this situation in criminal cases
cannot be similarly addressed.
3. While the Court did not consider in
Neypes the ordinary appeal period
in criminal cases under Section 6,
Rule 122 of the Revised Rules of
Criminal
Procedure
since
it
involved a purely civil case, it did
include Rule 42 of the 1997 Rules
of Civil Procedure on petitions for
review from the RTCs to the Court
of Appeals (CA), and Rule 45 of the
1997 Rules of Civil Procedure
governing appeals by certiorari to
this Court, both of which also
apply to appeals in criminal cases,
as provided by Section 3 of Rule
122 of the Revised Rules of
Criminal Procedure, thus:
SEC. 3. How appeal taken. x x x
x
(b) The appeal to the Court of
Appeals in cases decided by the
Regional Trial Court in the exercise
of its appellate jurisdiction shall be
by petition for review under Rule 42.
xxxx

Except as provided in the last


paragraph of section 13, Rule 124, all
other appeals to the Supreme Court
shall be by petition for review on
certiorari under Rule 45.
RULE 122
APPEAL
It is a proceeding for review by which the
whole case is transferred to the higher court
for a final determination. It is not an
inherent right of a convicted person. The
right of appeal is statutory. Only final
judgments and orders are appealable.
Who May Appeal
Any party may appeal from a judgment or
final order, unless the accused will be placed
in double jeopardy.
EFFECT OF AN APPEAL
An appeal in a criminal case opens the
whole case for review and this includes the
review of penalty, indemnity, and the
damages involved. Consequently, on appeal,
the appellate court may increase the penalty
and indemnity of damages awarded by the
trial court although the offended party had
not appealed from said award, and the party
who sought a review of the decision was the
accused.
WHERE AND HOW APPEAL IS TAKEN
(SECS. 2 and 3)
1. Appeal to the RTC: by filing a notice of
appeal with the court that rendered
the judgment or order appealed from
and serving a copy to the adverse
party;
2. Appeal to the CA from decision of the
RTC in the exercise of its original
jurisdiction: by filing a notice of
appeal with court which rendered the
judgment or order appealed from and
serving a copy to the adverse party;

3. Appeal to the CA in cases decided by


RTC in the exercise of its appellate
jurisdiction: by petition for review
under Rule 42;
4. Appeal to the CA in case where
penalty
imposed
is
reclusion
perpetua, life imprisonment or
where a lesser penalty is imposed
but involving offenses committed on
the same occasion or arising out of
the same occurrence that gave rise
to the more serious offense for
which the penalty of death or life
imprisonment is imposed: by filing a
notice of appeal with the CA;
5. Death penalty: automatic review by
the CA
6. (A.M. No. 00-5-03-SC, October 15,
2004);
7. Other appeals to the SC: by petition
for review on certiorari, except as
provided in the last paragraph of
Section 13, Rule 124 (Sec. 3.)
EFFECT OF APPEAL BY ANY OF THE
SEVERAL ACCUSED
(SEC. 11)
a. An appeal taken by one or more of
several accused shall not affect those
who did not appeal, except insofar as
the judgment of the appellate court is
favorable and applicable to the latter;
b. The appeal of the offended party from
the civil aspect shall not affect the
criminal aspect of the judgment or
order appealed from;
c. Upon perfection of the appeal, the
execution of the judgment or final
order appealed from shall be stayed as
to the appealing party.
Sec. 11(a) of this Rule is intended to
benefit the accused who did not join in the
appeal of his co-accused and the appellate
judgment therein turned out to be
favorable. Citing cases, the Court pointed
out that the said provision had been

applied without regard to the non-filing of an


appeal by a co-accused as long as the
appellate judgment was favorable to him.
Thus, where said co-accused had withdrawn
his appeal, or failed to file his brief, or
withdrew his notice of appeal from the trial
court, or all of the accused duly appealed
from the judgment of conviction but for
certain reasons, the conviction of some had
become executor, the Court still applied to
them the favorable judgment subsequently
rendered in the appeal of their co-accused
which had been given due course (Regalado
citing theconsolidated cases of Constantino v.
Sandiganbayan, et al., G.R. No. 140656 and
Lindong v. Sandiganbayan, et al., G.R. No.
154482, 13 Sept. 2007.)
In People v. Fernandez (GR No. 80481, 27
June1990), the SC applied the benefit of an
acquittalhanded down in an appeal to an
accused who jumped bail or escaped.

CASES DECIDED BY
MeTC, MTCC, MTC or MCTC
RTC in the exercise of its original
jurisdiction, where the penalty is
lower than reclusion perpetua

WHERE TO APPEAL

HOW APPEAL TAKEN

RTC

By notice of appeal
(ordinary appeal)

CA

By notice of appeal
(ordinary appeal) based
on questions of fact or
mixed questions of fact
and law

RTC in the exercise of its original


jurisdiction, where the penalty
imposed is reclusion perpetua, or
life imprisonment, OR where a
lesser penalty is imposed for
offenses committed on the same
occasion or which arose out of the
same occurrence that gave rise to
the more serious offense for
which the penalty of reclusion
perpetua or life imprisonment is
imposed

CA

RTC, where the penalty imposed


is death

CA

Automatic review (People


v. Mateo)

CA

By petition for review


under Rule 42 based on
questions of fact, of law
or mixed questions of
fact and law

Special cases by the MeTC,


MTCC, MTC or MCTC

SANDIGANBAYAN

By notice of appeal
(regular appeal)

RTC, whether in the exercise of


its original OR
appellatejurisdiction

SC

By petition for review on


certiorari based on
purely questions of law

CA and the Sandiganbayan,


whether in the exercise of their
original OR appellate jurisdiction

SC

By petition for review on


certiorari based on
questions of law

RTC in the exercise of its


appellate jurisdiction

By notice of appeal
(ordinary appeal) based
on questions of fact and
law

Effect of Perfection of Appeal


Once an appeal in a case, whether civil or
criminal, has been perfected, the court a
quo loses jurisdiction over the case both
over the record and over the subject of the
case (Directorof Prisons v. Teodoro, GR No.
L-9043, 30 July 1955.) Failure to serve a

copy to the fiscal is not adefect which can


nullify the appeal or prejudice the
unquestionable rights of the accused.

RULE 123
PROCEDURE IN MUNICIPAL TRIAL
COURT

GROUNDS OF DISMISSAL OF APPEAL


1. Failure on the part of the appellant to
file
his
appeal
within
the
reglementary period, except when he
is represented by counsel de oficio.
2. Escape of the appellant from prison.
3. Appellant jumps bail.
4. Flight of the appellant to a foreign
country during the pendency of the
appeal.

UNIFORM PROCEDURE
(SEC. 1)
The procedure to be observed in the
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts,
shall be the same as in the Regional Trial
Courts, except where a particular provision
applies only to either of said courts and in
criminal cases governed by the Revised
Rule on Summary Procedure.
Criminal Trial Process

Warrantless Arrest
(ART 113, Sec.5, par. a to c)
Search Warrant

Inquest

Crime Scene (Crime)

Motion to Quash or Motion to Suppress Evidence

Complaint Affidavit

Waived?
YES

Preliminary Investigation

BAIL

NO

Probable Cause?

Information
Probable Cause?

Judicial Determination of Probable Cause

YES

NO

YES

NO
Warrant of Arrest

Dismissed

Dismissed

RULE 124
PROCEDURE IN COURT OF APPEALS
APPOINTMENT OF COUNSEL DE OFICIO
(SEC. 2)

If it appears from the record of the case as


transmitted that:
a. the accused is confined in prison,
b. is without counsel de parte on
appeal, or
c. has signed the notice of appeal
himself, the clerk of court of the
Court of Appeals shall designate
a counsel de oficio.

An appellant who is not confined in prison


may, upon request, be assigned a counsel de
oficio within ten (10) days from receipt of the
notice to file brief and he establishes his
right thereto.
WHEN BRIEF FOR THE APPELLANT TO
BE FILED
(SEC. 3)
Within thirty (30) days from receipt by the
appellant or his counsel of the notice from
the clerk of court of the Court of Appeals
that the evidence, oral and documentary, is
already attached to the record, the appellant
shall file seven (7) copies of his brief with the
clerk of court which shall be accompanied by
proof of service of two (2) copies thereof
upon the appellee.
WHEN BRIEF FOR APPELLE TO BE
FILED; REPLY BRIEF OF THE
APPELLANT

(SEC. 4)

Within thirty (30) days from the receipt of


the brief of the appellant, the appellee
shall file seven (7) copies of the brief of the
appellee with the clerk of court which shall
be accompanied by proof of service of two
(2) copies thereof upon the appellant.

Within twenty (20) days from receipt of the


brief of the appellee, the appellant may file
a reply brief traversing matters raised in
the former but not covered in the brief of
the appellant.
EXTENSION OF TIME FOR FILING
BRIEFS
(SEC. 5)
It is not be 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.
CONTENTS OF BRIEFS
(SEC. 7)
The briefs in criminal cases shall have the
same contents as provided in Sections 13
and 14 of Rule 44.
A certified true copy of the decision or final
order appealed from shall be appended to
the brief of appellant.
DISMISSAL OF APPEAL FOR
ABANDONMENT OR FAILURE TO
PROSECUTE
(SEC. 8)
Grounds:

Upon motion of the appellee or motu proprio


and with notice to the appellant in either
case, dismiss the appeal if:
a. the appellant fails to file his brief
within the time prescribed by this
Rule, except where the appellant is
represented by a counsel de oficio;
b. appellant escapes from prison or
confinement, jumps bail or flees to a
foreign country during the pendency
of the appeal.
JUDGMENT NOT TO BE REVERSED OR
MODIFIED FOR SUBSTANTIAL ERROR
(SEC. 9)
General Rule:
No judgment shall be reversed or modified
unless the Court of Appeals, after an
examination of the record and of the
evidence adduced by the parties, is of the
opinion that error was committed which
injuriously affected the substantial rights of
the appellant.
Exceptions:
1. When it is shown that the trial court
has overlooked certain facts of
substance
and
value
that,
if
considered might affect the result of
the case;
2. When there is prejudicial error; or
3. When it prejudiced the substantial
right of a party to the proceedings.
MOTION FOR NEW TRIAL
(SEC. 14)
At any time after the appeal from the lower
court has been perfected and before the
judgment of the Court of Appeals convicting
the appellant becomes final, the latter may
move for a new trial on the ground of newlydiscovered evidence material to his defense.
The motion shall conform with
provisions of Section 4, Rule 121.

the

WHERE NEW TRIAL CONDUCTED


(SEC. 15)
When a new trial is granted, the Court of
Appeals may conduct the hearing and
receive evidence as provided in Section 12
of this Rule or refer the trial to the court of
origin.
RECONSIDERATION
(SEC. 16)
A motion for reconsideration shall be filed
within fifteen (15) days after from notice of
the decision or final order of the Court of
Appeals, with copies served upon the
adverse party, setting forth the grounds in
support thereof.
The mittimus shall be stayed during the
pendency
of
the
motion
for
reconsideration.
No party shall be allowed a second motion
for reconsideration of a judgment or final
order.
RULE 125
PROCEDURE IN THE SUPREME
COURT
UNIFORM PROCEDURE
(SEC. 1)

Unless otherwise provided by the


Constitution or by law, the procedure in the
Supreme Court in original and in appealed
cases shall be the same as in the Court of
Appeals.
A Case may be referred to the Supreme
Court in the following instances:
a. Automatic Review
b. Ordinary Appeal
c. Petition for Certiorari

The appeal before the Supreme Court is not


a matter of right but it is a matter of sound
judicial discretion.
DECISION IF OPINION IS EQUALLY
DIVIDED
(SEC. 3)

definite guideline to the searching team as


to what items might be lawfully seized,
thus giving the officers of the law
discretion regarding what articles they
should seize. It is not valid as it infringes
on the constitutional mandate requiring a
particular description of the things to be
seized.

When the Supreme Court en banc is equally


divided in opinion or the necessary majority
cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon and if no decision is reached after redeliberation, the judgment of conviction of
the lower court shall be reversed and the
accused acquitted.

A general warrant can be quashed and the


evidence
obtained
thereby
can
be
suppressed only by the party actually
affected.

RULE 126

There must be strict compliance with the


constitutional and statutory requirements.
Otherwise, void. No presumptions of
regularity are to be invoked in aid of the
process when an officer undertakes to
justify it (People v. Veloso,GR No. 23051, 20
October 1925). It will always beconstrued
strictly without going the full length of
requiring technical accuracy.

SEARCH AND SEIZURE


SEARCH WARRANT
1. order in writing issued in the name of
the People of the Philippines,
2. signed by a judge and
3. directed to a peace officer, commanding
him to search for personal property
described therein and to
4. bring it before the court.
NATURE OF SEARCH WARRANT
It is in the nature of a criminal process and
may be invoked only in furtherance of public
prosecutions. Search warrants have no
relation to civil process or trials and are not
available to individuals in the course of civil
proceedings, nor for the maintenance of a
mere private right. It is interlocutory in
character because it leaves something more
to be done, the determination of the guilt of
the accused.
GENERAL WARRANT
It is a search warrant which vaguely
describes and does not particularize the
personal properties to be seized without a

SCATTER-SHOT SEARCH WARRANT


It is a warrant issued for more than one
offense. It is invalid because it violates the
constitution.

WARRANT OF
ARREST

SEARCH
WARRANT

Order directed to
the peace officer to
execute
the
warrant by taking
the person stated
therein
into
custody so that he
may be bound to
answer
for
the
commission of the
offense. Does not
become stale.

Order in writing in
the name of the
Republic of the
Philippines signed
bythe judge and
directed to the
peace officer to
search
personal
property described
therein
and
to
bring it to court.
Validity is for 10
days only.

May be served on
anyday and at any
time of day or
night.

Searching
examination
witnesses is
necessary.

To be served only
in daytime unless
the
affidavit
alleges that the
property is on the
person or in the
place
to
be
searched.

Must
personally
of conduct
an
not examination of the
complainant and
the witnesses.

Judge is merely
called
upon
to
examine
and
evaluate the report
of the fiscal and
the evidence.

Examination must
be probing. Not
enough to merely
adopt
the
questions
and
answers asked by
a
previous
investigator.

WHERE TO FILE AN APPLICATION FOR


SEARCH WARRANT
(SEC. 2)
a. Any court within whose territorial
jurisdiction a crime was committed;
b. For compelling reasons, any court within
the judicial region where the crime was
committed if the place of the commission
of the crime is known, or any court
within the judicial region where the
warrant shall be enforced;
c. However, if the criminal action has been
filed, the application shall only be made
in the court where the criminal action is
pending.
Pars. (a) and (b) apply only where no
criminal case has been filed against the
accused for the offense in connection with
which the search warrant is sought. If a

criminal case therefor has already been


filed, the court where it is pending shall
have primary and exclusive jurisdiction to
issue the warrant.
Requisites before a Search Warrant may
Issue
1. Must be issued upon probable
cause;
2. Probable cause must be determined
by the issuing judge personally;
3. The judge must have personally
examined, in the form of searching
questions
and
answers,
the
applicant and his witnesses;
4. The
search
warrant
must
particularly describe or identify the
property to be seized as far as the
circumstances will ordinarily allow;
5. The
warrant
issued
must
particularly describe the place to be
searched and the persons or things
to be seized;
6. It must be in connection with one
specific offense;
7. The sworn statements together with
the
affidavits
submitted
by
witnesses must be attached to the
record (Prudente v. Dayrit, GR.No.
82870, 14 December 1989).
8. The warrant must not have been
issued more than 10 days prior to
the search made pursuant thereto.
PROBABLE CAUSE
Refers to the facts and circumstances
which could lead a reasonably discreet and
prudent man to believe that an offense has
been committed and that the objects
sought in connection with the offense are
in the place sought to be searched (Burgos
v. Chief of Staff, GR No. L-65334, 26
December 1984.)
Basis of Probable Cause
The basis must be the 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 that perjury could be
charged thereon and the affiant be held
liable for damage caused.
Mere affidavits of the complainant and his
witnesses are not sufficient. The judge has
to take the depositions of the complainant
and the witnesses in writing and attach
them to the record (Mata v. Bayona, GR No.
L-50720, 26March 1984).
PERSONAL EXAMINATION BY THE JUDGE
OF THE APPLICANT AND WITNESSES
(SEC. 5)
Requisites of Personal Examination by
the Judge
1. The judge must examine the witness
personally;
2. The examination must be under
oath;
3. The examination must be reduced to
writing in the form of searching
questions and answers (Marinas v.
Siochi, GR Nos. L-25707 &2575325754, 14 May 1981).
4. It must be proving and exhaustive,
not merely routinary or pro forma
(Roan v. Gonzales, GRNo. 71410, 25
November 1986).
5. It is done ex - parte and may even be
held in the secrecy of chambers
(Mata v. Bayona, GRL-50720, 26
March 1984).
Period of Effectivity of Search Warrants
A warrant is valid for ten days from its date.
After such time, it is void (Sec. 10.) A search
warrant can be used only once, thereafter it
becomes functus oficio.
While under Section 10, a search warrant
has a validity of 10 days, nevertheless, it
cannot be used every day of said period and

once articles have already been seized


under said warrant, it cannot be used
again for another search and seizure,
except when the search conducted on one
day was interrupted, in which case the
same may be continued under the under
the same warrant the following day if not
beyond the 10 day period.
PARTICULARITY OF THE PLACE TO BE
SEARCHED AND THINGS TO BE SEIZED
Tests to determine the particularity in
describing the place to be searched and
the persons or things to be seized.
1. Whether the description therein is
as specific as the circumstances
will ordinarily allow (People v.
Rubio, GR No. L-35500, 27 October
1932).
2. Whether the description express a
conclusion of fact not of law
which the warrant officer may be
guided in making the search and
seizure;
3. Whether the things described are
limited to those which bear direct
relation to the offense for which the
warrant is being issued.
The 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 be committed (Stonehill v.Diokno,
GR No. L-19550, 19 June 1967.)
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 will enable the officer to
identify the person. The description must
be sufficient to indicate clearly the proper
person upon whom it is to be served
(People v.Veloso, GR No. L-23051, 20
October 1925.)

Q: Police operatives of the Western Police


District, Philippine National Police, applied
for a search warrant in the RTC for the
search of the house of Juan Santos and the
seizure of an undetermined amount of
shabu. The team arrived at the house of
Santos but failed to find him there. Instead,
the team found Roberto Co. The team
conducted a search in the house of Santos
in the presence of Roberto Co and barangay
officials and found ten (10) grams of shabu.
Roberto Co was charged in court with illegal
possessionof ten grams of shabu. Before his
arraignment, Roberto Co filed a motion to
quash the warrant on the following grounds
(a) it was not the accused named in the
search warrant; and (b) the warrant does not
describe the article to be seized with
sufficient particularity. Resolve the motion
with reasons. (BAR 2005)
A: The motion to quash should be denied.
The name of the person in the search
warrant is not important. It is not even
necessary that a particular person be
implicated (Mantaring v. Roman, A.M. No.
RTJ-93-904, February 28, 1996), so long as
the search is conducted in the place where
the search warrant will be served. Moreover,
describing the shabu in an undetermined
amount is sufficiently particular. (People v.
Tee, G.R. Nos. 140546-47, January 20, 2003)
PERSONAL PROPERTY TO BE SEIZED
(SEC. 3)
A search warrant may be issued for the
search and seizure of personal property:
1. Subject of the offense;
2. Stolen or embezzled and other
proceeds , or fruits of the offense; or
3. Used or intended to be used as the
means of committing an offense.
The enumeration in Sec. 3 is EXCLUSIVE.

NOTE: The rules do not require that


theproperty to be seized should be owned
by the person against whom the search
warrant is directed. It may or may not be
owned by him. It is sufficient that the
person against whom the warrant is
directed has control or possession of the
property sought to be seized (Burgos v.
Chiefof Staff, G.R. No. L-65334, Dec. 26,
1984.)
A person lawfully arrested (with or without
a search warrant) may be searched for:
dangerous weapons; or
anything which may have been
used or constitute proof in the
commission of an offense without a
search warrant (Sec. 13).
Q: A was killed by B during a quarrel over
a hostess in a nightclub. Two days after
the incident, and upon complaint of the
widow of A, the police arrested Bwithout a
warrant of arrest and searched his house
without a search warrant.
a) Can the gun used by B in shooting A,
which was seized during the search of the
house of B, be admitted in evidence?
b) Is the arrest of B legal?
c) Under the circumstances, can B be
convicted of homicide?(BAR 1997)
A: (a) No. The gun seized during the
search of the house of B without a search
warrant is not admissible in evidence.
(Secs. 2 and 3[2], Art. III of the 1987
Constitution).Moreover, the search was not
an incident to a lawful arrest of a person
under Sec. 12 of Rule 126.
(b) No. A warrantless arrest requires that
the crime has in fact just been committed
and the police arresting has personal
knowledge of facts that the person to be
arrested has committed it. (Sec. 5, Rule
113) Here, the crime has not just been

committed since a period of two days had


already lapsed, and the police arresting has
no such personal knowledge because he
was not present when the incident
happened.(Go vs. Court of Appeals. 206
SCRA 138)
(c) Yes. The gun is not indispensable in
the conviction of A because the court
may rely on testimonial or other evidence.
Remedies from an unlawful search:
1. Motion to quash the search warrant;
and
2. Motion to suppress as evidence the
objects illegally taken.
But where the search warrant is a patent
nullity, certiorari lies to nullify the same.
The remedy for questioning the validity of a
search warrant should be sought in the
court that issued it, and not through
replevin.
Q: In a buy-bust operation, the police
operatives arrested the accused and seized
from him a sachet of shabu and an
unlicensed firearm. The accused was
charged in two Informations, one for
violation of the Dangerous Drug Act, as
amended, and another for illegal possession
of firearms.
The accused filed an action for recovery of
the firearm in another court against the
police officers with an application for the
issuance of a writ of replevin. He alleged in
his Complaint that he was a military
informer who had been issued a written
authority to carry said firearm. The police
officers moved to dismiss the complaint on
the ground that the subject firearm was in
custodia legis. The court denied the motion
and instead issued the writ of replevin.
(a) Was the seizure of the firearm valid?

(b) Was the denial of the motion to dismiss


proper? (BAR 2003)
A: (a) Yes, the seizure of the firearm was
valid because it was seized in the course of
a valid arrest in a buy bust operation. (Sec.
12 and 13 of Rule 126)A search warrant
was not necessary. (People v. Salazar, 266
SCRA 607, 1997)
(b) The denial of the motion to dismiss was
not proper. The court had no authority to
issue the writ of replevin whether the
firearm was in custodia legis.
EXCEPTIONS TO SEARCH WARRANT
REQUIREMENTS
A. INCIDENT TO LAWFUL ARREST
Immediate Control Test: A search
incidentalto a lawful warrantless arrest
may extend beyond the person where the
exigencies of the situation justify a
warrantless search for dangerous weapons
and to prevent the arrestee from destroying
evidence of the crime within reach (People
v. Musa, GR No.95329, 27 January 1993.)
B. CONSENTED SEARCH (waiver of right)
Consent cannot be presumed simply
because the accused failed to object to the
search. To constitute a waiver, it must
appear that:
a. The right exists;
b. The
person
involved
had
knowledge,
actual
or
constructive, of the existence of
such rights;
c. Actual intention to relinquish
such rights(People v. Burgos,
GR No. 92739, 2 August 1991.)

C. SEARCH OF MOVING VEHICLES

May validly be made without a search


warrant because the vessel or aircraft can
quickly move out of the jurisdiction before
such warrant could be secured (People v. Lo
HoWing, GR No. 88017, 21 January 1991).
This has, however, been qualified by the rule
laid down by the SC that when a vehicle is
stopped and subjected to an extensive
search, such warrantless search shall be
valid only if the officers conducting the same
had reasonable or probable cause to believe
before the search that they would find the
instruments or evidence of a crime on the
vehicle to be searched (Regalado citing
People Bagista, G.R. No. 86218, 18 Sept.
1992).
D. CHECKPOINTS. Inspections
checks inairports.

or

body

E. When there are illegal articles open to


the eye and hand (Plain View Doctrine)
Evidence may also be seized without a
warrant where such objects are in plain view
of an officer who has the right to be in the
position to have that view and such objects
are per se subject to seizure. This doctrine
may not, however, be used to justify a
general exploratory search made solely to
find evidence of the guilt of the accused.
Elements of Plain View Doctrine
a. A prior valid intrusion based on valid
warrantless arrest in which the police
are legally present in the pursuit of
their official duties;
b. The evidence was inadvertently
discovered by the police who had the
right to be where they were;
c. The evidence must be immediately
apparent; and
d. The plain view justified mere
seizure of evidence without further
search.

Q: The search warrant authorized the


seizure of undetermined quantity of
shabu. During the service of the search
warrant, the raiding team also recovered a
kilo of dried marijuana leaves wrapped in
newsprint.
The
accused
moved
to
suppressthe marijuana leaves as evidence
for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of
2002 since they were not covered by the
search warrant. The State justified the
seizure of the marijuana leaves under the
plain view doctrine. There was no
indication of whether the marijuana leaves
were discovered and seized before or after
the seizure of the shabu. If you are the
judge, how would you rule on the
motion to suppress?(BAR 2008)
A: The plain view doctrine cannot be
invoked because the marijuana leaves were
wrapped in newsprint and there was no
evidence as to whether the marijuana
leaves were discovered and seized before or
after the seizure of the shabu. If they were
discovered after the seizure of the shabu,
then the marijuana could not have been
seized in palin view (CF. Peo vs. Mua, G.R.
No. 96177, 27 January 1997). In any case,
the marijuana should be confiscated as a
prohibited article.
F. STOP AND FRISK SITUATION
Its object is either to determine the identity
of a suspicious individual or to maintain
the status quo momentarily while the
police officer 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
to assault him (Manalili v. CA, GR No.
113447, 9 October 1997.)
G. ENFORCEMENT OF CUSTOM LAWS
H. EMERGENCY

I.

ENFORCEMENT
SANITARYLAWS

OF

HEALTH

AND

REMEDIES FROM AN UNLAWFUL SEARCH


AND SEIZURE
1. A motion to quash the search
warrant;
2. A motion to suppress as evidence the
objects
illegally
taken
(EXCLUSIONARY
RULE

any
evidence
obtained
through
unreasonable searches and seizures
shall be inadmissible for any purpose
in any proceeding);
3. Replevin, if the objects are illegally
possessed.
Party who may question validity of
search warrant: Well settled is the rule that
the legalityof a seizure can be contested only
by the party whose right have been impaired
thereby, and that the objection to an
unlawful search and seizure is purely
personal and cannot be availed of by third
parties (Stonehill v. Diokno, G.R. No. L-19550,
June 19, 1967.)
A MOTION TO QUASH A SEARCH
WARRANT OR TO SUPPRESS EVIDENCE;
WHERE TO FILE
General Rule: A motion to quash a
searchwarrant or to suppress evidence may
only be filed and acted upon only by the
court where the action is pending.
Exception: If no criminal action has been
filed,the motion may be filed in and resolved
by the court that issued the search warrant.
Exception to the Exception: If the criminal
case issubsequently filed in another court
and the motion to quash is still not resolved
by the issuing court, the motion shall not be
resolved by the former court unless

compelling reasons warrant its resolution


by the latter court.
Filing of motion to quash is without
prejudice to any proper recourse to the
appropriate higher court by the party
aggrieved. All grounds and objections then
available, existent or known shall be raised
in the original or subsequent proceedings
for the quashal of the warrant; otherwise
they shall be deemed waived. In view of the
foregoing amendment, it seems that the
OMNIBUS MOTION RULE is no longer
applicable because the motion to quash or
motion to suppress evidence is now filed in
one court
Judge may order the quashal of a warrant
after the goods had been seized pursuant
to it and the prosecution is using the
goods as evidence (SolidTriangle Sales
Corp. v. Sheriff of RTC QC Br. 93, et. al.,
G.R. 144309, November 23, 2001).
Search operation conducted in the
presence of the occupant of the premises
with only one witnesses valid (Yousef AlGhoul, et. al. v. Court ofAppeals, PP, G.R.
No. 126859).
RULE 127
PROVISIONAL REMEDIES
NATURE
They are those to which parties may resort
for the preservation or protection of
theirrights or interests and for no other
purposesduring the pendency of the
action.
They are applied to a pending litigation for
the purpose of securing the judgment or
preserving the status quo; and in some
cases after judgment, for the purpose of
preserving or disposing of the subject
matter (Cala v.Roldan, GR No. L-252, 30
March 1946).

The requisites and procedure for availing of


these provisional remedies shall be the same
as those for civil cases. The provisional
remedies under this rule are proper only
where the civil action for the recovery of civil
liability ex delicto has not been expressly
waived or the right to institute such civil
action separately is not reserved in those
cases where reservation may be made.
Where the civil action arising from a
criminal 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 orders do not
involved a determination of the merits of the
case (Babala v.Abano, GR No. L-4600, 28
February 1952). Itshould be recalled
however, that if no final judgment has been
rendered in the civil action, the same may be
consolidated with the criminal action upon
application to the court trying the latter case
(Sec. 2, Rule 111).
KINDS OF PROVISIONAL REMEDIES
1. Attachment;
2. Injunction;
3. Receivership;
4. Delivery of personal property;
5. Support pendente lite.
ATTACHMENT
A provisional remedy issued upon order of
the court where an action is pending to be
levied upon the property of the defendant so
the property may be held by the sheriff as
security for the satisfaction of whatever
judgment may be rendered in the case.
It is a provisional remedy, auxiliary or
incidental to the main action, whereby the
debtors property capable of being taken

under levy and execution is placed under


custody
of
the
law
pending
the
determination of the cause, to secure the
payment of any judgment that may be
recovered therein (Davao Light & Power
CO. v.CA, G.R. No. 93262, Nov. 29, 1991).
INJUNCTION
Ancillary or preventive remedy where a
court requires a person, a party or even a
court or tribunal either to refrain
(prohibitory)
from
or
to
perform
(mandatory) particular acts during the
pendency of an action.
RECEIVERSHIP
A remedy to protect and preserve the
rights of the parties during the pendency
of themain action, during the pendency of
an appeal or as an aid in the execution of a
judgment when the writ of execution has
been returned unsatisfied
Receivership, like injunction may also be a
principal action as the one referred to in
Sec. 4, Rule 39. Rule 59 is a receivership
that is ancillary to the main action.
DELIVERY OF PERSONAL PROPERTY
A remedy for the return or recovery by a
person of personal property capable of
manual delivery claimed to be wrongfully
taken or detained.
Subject Matter: Personal Property
SUPPORT PENDENTE LITE
Amount of support provisionally fixed by
the court in favor of the person or persons
entitled thereto during the pendency of an
action for support or a criminal action
where the civil liability includes support
for the offspring.

SPECIAL PROCEEDING

A remedy by which a party seeks to establish a status, right or a particular fact. (Rule
1, Sec. 3 (c)).
An application to establish the status or right of a party or a particular fact or any
remedy other than an ordinary suit in a court of justice. (Regalado, 2008).

ORDINARY
ACTION
To enforce or
protect a right or
prevent or
redress of a
wrong
There is an
adverse party

SPECIAL
PROCEEDINGS
To establish a
status, right, or a
particular fact

No adverse party

Ordinary appeal

Multiple appeals

There is
prescriptive
period

No prescriptive
period

General
jurisdiction
Initiated by a
pleading, and
parties respond
through an
answer

Limited jurisdiction
Initiated by a
petition and parties
respond through an
opposition

RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
Section 1.Subject Matter
(SEGTAR-HOHA-C3-VoJuD)
1. Settlement of estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus
9. Change of name;
10.Voluntary Dissolution of Corporations;
11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of Family Home;
13. Declaration of absence and death;

14. Cancellation or correction of entries in the civil registry

Q: IS THE LIST OF SUBJECT MATTERS UNDER SECTION 1, RULE 72 EXCLUSIVE?


A: No. The list under Section 1, Rule 72 is not exclusive. Any petition which has for its main
purpose the establishment of a status, right or a particular fact may be included as special
proceeding. (Festin, Special Proceedings: A Foresight to the Bar Exam, [2015] p. 1)
OTHER SPECIAL PROCEEDINGS:
1.
2.
3.
4.
5.
6.
7.

Corporate rehabilitation;
Liquidation proceedings;
Recognition and enforcement of arbitration clause or award;
Vacation, setting aside, correction or modification of an arbitral award;
Any application with a court for arbitration assistance and supervision;
Petition for Writ of Amparo (AM 07-9-12-SC, October 16, 2007);
Petition for Writ of Habeas Data (AM 08-1-16-SC, February 2, 2008).

APPLICABILITY OF RULES OF CIVIL ACTIONS


In the absence of special provisions, the rules provided for in ordinary actions shall be, as far
as practicable, applicable in special proceedings. (Rule 72, Sec. 2)
The distinction between final and interlocutory orders in civil actions for purposes of
determining the issue of applicability, is not strictly applicable to orders in special proceedings.
[Regalado, 2011]
Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings.
(Matute vs CA, G.R. No. 26751, January 31, 1969).

RULE 73
SETTLEMENT OF ESTATE OF DECEASED PERSONS
VENUE AND PROCESS
Different modes of settlement of estate of a deceased person:
1.
2.
3.
4.
5.
6.

Extrajudicial Settlement of Estate (Rule 74, Sec. 1)


Summary Settlement of Estate of Small Value (Rule 74, Sec. 2)
Partition (Rule 69)
Probate of a Will (Rule 75 - 79)
Self- adjudication of Sole heir (Rule 74, Sec. 1)
Petition for Letters of Administration in cases of Intestacy (Rule 79)

DECEDENT

TESTATE

Summary

Probate

10,000 php Gross Estate

Q: WHICH COURT HAS JURISDICTION?


A: The Regional Trial Court has jurisdiction over proceedings for the settlement of the estate
of a deceased person (probate proceedings) where the gross value of the estate exceeds
P300,000 and in Metro Manila where the gross value of the estate exceeds P400,000. (Sec. 19
[4] BP Blg. 129)
Where the gross value does not exceed P300,000 or P400,000 it would be the Municipal Trial
Court which would have jurisdiction.
Jurisdiction over the subject matter is determined by the material allegations in the petition
(Cadimas vs. Carrion, G.R No. 180394, September 29, 2008).
VENUE IN JUDICIAL SETTLEMENT OF ESTATE
Inhabitant of the Philippines at the time of
his death, whether citizen or alien
Regional Trial Court of the province where
decedent resides at the time of his death.

BAR (2003)

Inhabitant of a foreign country at the time


of death
Regional Trial Court of any province in
which he had estate. The Court first taking
cognizance of the proceeding for settlement
acquires jurisdiction to the exclusion of
other courts.

Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth


200,000.00. in what court, taking into consideration the nature of jurisdiction and of
venue, should the probate proceeding on the estate of A be instituted?

A: The probate proceeding on the estate of A should be instituted in the Municipal Trial Court
of Malolos, Bulacan which has jurisdiction, because the estate is valued at 200,000.00, and is
the court of proper venue because A was a resident of Malolos at the time of his death.

EXCLUSIONARY RULE (Rule 73, Sec.1)


General Rule: The court first taking cognizance of the settlement of the decedent shall exercise
jurisdiction to the exclusion of all other courts. This is also known as exclusionary rule.
The probate court acquires jurisdiction from the moment the petition for the settlement of
estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts
of the parties. (Sandoval v. Santiago, GR No. L 1723, May 30, 1947).
Exception: Estoppel by laches
Estate Settled Upon Dissolution of Marriage
When the marriage is dissolved by the death of the husband or wife, the community property
shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either. (Rule 73, Sec. 2)
PRESUMPTION OF DEATH
General Rule: A person is dead for the purpose of settling his estate if he has been missing for
10 years. [Art. 390, CC]
However, if the absentee disappeared after the age of 75 years, an absence of 5 years is
sufficient for the opening of succession.

Exceptions: However, the following persons would be considered absent even for the purpose
of opening succession after just 4 years: [Art. 391, CC] .
1) A person on board a vessel lost during a sea voyage, or an aero plane which is missing.
2) A person in the armed forces who has taken part in war.
3) A person who has been in danger of death under other circumstances.

If the absentee turns out to be alive, shall be entitled to the balance of his estate after payment
of all his debts. The balance may be recovered by motion in the same proceeding. [Rule 73, Sec.
4]

Residence
Personal, actual, or physical habitation, his actual residence or place of abode (Fule vs CA, G.R.
No.112212, March 2, 1998))
EXTENT OF JURISDICTION OF PROBATE COURT
1.
2.
3.
4.

Administration of the estate;


Liquidation of the estate;
Distribution of the estate;
Issues that may be determined by the probate court:
a. Who are the heirs of the decedent
b. The recognition of a natural child
c. The validity of disinheritance effected by the testator
d. Status of a woman who claims to be the lawful wife of the decedent
e. The validity of a waiver of hereditary rights
f. All other matters incidental or collateral to the settlement and distribution of the
estate, such as the determination of the status of each heir and whether the property
in the inventory is conjugal or exclusive property of the deceased spouse.

DETERMINATION OF OWNERSHIP
General Rule: Not Allowed
Exceptions:
1. Provisionally, ownership may be determined for the purpose of including property in
inventory, without prejudice to its final determination in a separate action.
2. If all the parties are heirs and they submit the issue of ownership to probate court, provided
that the rights of 3rd parties are not prejudiced.
3. If the question is one of collation or advancement.
4. If the parties consent to the assumption of jurisdiction by the probate court.

POWERS AND DUTIES OF A PROBATE COURT


1. In probate proceedings, the court: (IDASH- IGOO)
a. Orders the probate of the will of the decedent (Rule 77, Sec. 3);
b. Grants letters of administration of the party best entitled thereto or to any qualified
applicant (Rule 79, Sec. 5);
c. Supervises and control all acts of administration;
d. Hears and approves claims against the estate of the deceased (Rule 86, Sec. 11);
e. Orders payment of lawful debts (Rule 88, Sec. 11);

f. Authorizes sale, mortgage or any encumbrance of real estate (Rule 89, Sec. 2);
g. Directs the delivery of the estate to those entitled thereto (Rule 90, Sec. 1);
h. Issue warrants and processes necessary to compel the attendance of witnesses or to
carry into effect their orders and judgments, and all other powers granted them by law
(Rule 73, Sec. 3);
i. If a person defies a probate order, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment, or is released
(Rule 73, Sec. 3).
2. The court acts as trustee and as such, should jealously guard the estate and see to it that it
is wisely and economically administered, not dissipated (Timbol v. Cano, G.R. L-15445, April 29,
1961).

COMPARATIVE TABLE ON JURISDICTION AND VENUE IN SPECIAL PROCEEDINGS

KINDS OF SPECIAL
PROCEEDINGS
1. Settlement of Estate
(Rule 73)

JURISDICTION AND VENUE

1. RTC or MTC (depending on the gross value of the estate) of the


province where the deceased last resided.
2. In case the decedent is a non-resident of the Philippines at the
time of his death, venue lies in any province in which he had an
estate.

2. Escheat (Rule 91)

1. RTC of province where the deceased last resided.


2. In case the decedent is a non-resident of the Philippines at the
time of his death, venue lies in any province in which he had an
estate.

3. Guardianship
a. Rule on
Guardianship of Minors
(A.M. No. 03-02-05-SC)

b. Guardianship over
incompetent persons
who are not minors

1. Family Court of province or city where the minor actually


resides.
2. If the minor resides in a foreign country, in the Family Court of
the province or city where his property or any part thereof is
situated.

1. RTC of the province or city where incompetent person last


resided.

under the Rules of


Court (Rule 92-97)

2. If the incompetent person resides in a foreign country, in the


Family Court of the province or city where his property or any part
thereof is situated.

4. The Rule of Adoption


(A.M. No. 02-6-02-SC)

1. Family Court of province or city where the prospective adoptive


parents reside.

a. If filed under the


Domestic Adoption Act
(R.A. No. 8552)

2. If the petition is for Rescission of Adoption of the AdopteeFamily Court of the city or province where the adoptee resides.
(Sec. 19)

b. If filed under the


Inter-Country Adoption
Act (R.A. No. 8043)

1. Family Court having jurisdiction over the place where the child
resides or may be found (filed by a foreign national or Filipino
citizen permanently residing abroad).
2. It may be filed directly with the Inter-Country Adoption Board.

5. Habeas Corpus
a. Habeas Corpus for
illegal confinement or
detention (Rule 102)

b. Habeas Corpus for


custody of minors (A.M.
No, 03-04-04-SC)

6. Amparo (A.M. No. 079-12-SC)

1. If filed with RTC, where the person is detained. SC, CA and RTC
have concurrent jurisdiction.

1. Family Courts have exclusive jurisdiction (Family Courts Act of


1997 [R.A. No. 8309]).
2. Under the Rule on Custody of Minors and Writ of Habeas
Corpus in relation to Custody of Minors (A.M. No, 03-04-04-SC),
the petition may be filed with SC, CA or any of its members, and, if
so granted, the writ shall be enforceable anywhere in the
Philippines.
SC, CA and Sandiganbayan, RTC
If with the RTC:
The place where the threat, act or omission was committed or any
of its elements occurred. (Sec. 3)

7. Habeas Data (A.M.


No. 08-1-16-SC)

SC, CA and Sandiganbayan when the action concerns public data


or files of government offices.
If with the RTC:
1. where petitioner resides;

2. where respondent resides; or


3. that which has jurisdiction over the place where data or
information is gathered, collected or stored, at the option of
petitioner. Sec. 3)
8. Change of Name
(Rule 103)

RTC of the province where the petitioner resides. (Sec. 1)

9. Absentees (Rule 107)

RTC of place where absentee resided before his disappearance.


(Sec. 1)

10. Cancellation or
Correction of Entries
(Rule 108)

RTC of the province where the corresponding Local Civil Registrar


of place is located. (Sec. 1)

11. The Clerical Error


Act (R.A. No. 9048)

1. Local civil registry office of the city or municipality where the


record being sought to be corrected or changed is kept;
2. Local civil registrar of the place where the interested party is
presently residing or domiciled;
3. Philippine Consulates

RULE 74
SUMMARY SETTLEMENT OF
ESTATES
RULE WITH RESPECT TO THE ESTATE
LEFT BY THE DECEDENT
General Rule: When a person dies leaving
property, the same should be JUDICIALLY
ADMINISTERED and the competent court
should appoint a qualified administrator, in
the order established in Section 6, Rule 78,
in case the deceased left no will, or in case
he had left one, should he fail to name an

executor therein. (Utulo vs. Pasion vda. De


Garcia, G.R. No. 45904, September 30,
1938)
Exceptions:
1. Extrajudicial settlement (Rule 74, Sec. 1)
2. Summary settlement of estates of small
value (Rule 74, Sec. 2)

Note: In both exceptional circumstances, an


administrator or executor need not be
appointed.

SETTLEMENT OF ESTATES
EXTRA-JUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN
HEIRS; WHEN ALLOWED
(Bar Question, 2005)

AFFIDAVIT OF SELFADJUDICATION BY
SOLE HEIR

SUMMARY SETTLEMENT OF ESTATES


OF SMALL VALUE; WHEN ALLOWED
(10-TPP-HPRB)

Requisites:

Requisites:

Requisites:

1.Decedent left NO will;

1.If there is only one


heir;

1. Gross value of the estate does not


exceed ten thousand pesos (P10T). This is
jurisdictional (Del Rosario v. Conanan, L37903, March 30, 1977);

2.Decedent left NO debts, or if there


were, all have been paid;
3. Heirs are all of LEGAL AGE, or if
MINORS, they are represented by
their
judicial
or
legal
representatives;

2.He may adjudicate to


himself
the
entire
estate by means of an
affidavit
of
self
adjudication.

2.Decedent died testate or intestate;


3.Petition filed by an interested person;

WHERE TO FILE:
Agreement filed with the Register of
Deeds by means of:
1. Public instrument, if there are
more than one heir, or
2. Affidavit of adjudication, if
there is a sole heir.

WHERE TO FILE:
Affidavit filed with the
Register
of
Deeds
(Affidavit
of
selfadjudication).

WHERE TO FILE:
In accordance with B.P 129, the
summary settlement of estates of small
value is within the jurisdiction of the
MTCs.

PUBLICATION:
Published in a newspaper of general
circulation in the province once a
week for three consecutive weeks.

PUBLICATION:
Published
in
a
newspaper of general
circulation
in
the
province once a week
for three consecutive
weeks.

PUBLICATION:
Notice published at least once a week for
3 consecutive weeks in a newspaper of
general circulation;

BOND:
A bond is required only when
personality is involved. Real estate
is subject to a lien in favor of
creditors, heirs or other persons for
full period of two years from such
distribution and such lien cannot be
substituted by a bond.

BOND:
Bond shall be filed
equivalent to the value
of
the
personal
property involved with
the register of deeds

Hearing of petition held not less than 1


month nor more than 3 months from the
date of the LAST publication of notice;
Payment of such debts of the estate as
the court shall find to be due;
The order of partition or award, if it
involves real estate ,must be recorded in
the register of deeds;
BOND:
Bond filed with the register of deeds in an
amount to be fixed by the court.

SECTION 1, RULE 74 CONSTRUED


Section 1 does not preclude the heirs from
instituting administration proceedings, even
if the estate has no debts or obligations, if
they do not desire to resort for good reasons
to an ordinary action of partition.Said
section is not mandatory or compulsory as
may be gleaned from the word used therein.
If the intention were otherwise the framer of
the rule would have employed the word
shall as was done in other provisions that
are mandatory in character (Rodriguez, et.
al. vs. Tan, et. al., G.R. No. L-6044,
November 24, 1952)
TWO-YEAR PRESCRIPTIVE PERIOD
Q. What is the presumption if no creditor
files
a
petition
for
letters
of
administration within 2 years after the
death of the decedent?
A: It shall be presumed that the decedent
left no debts (Rule 74, Sec. 1). This
presumption is rebuttable.

Q. May the distributees and the estate be


held liable after the settlement and the
distribution of the estate?
A: Yes. If within 2 years after an
extrajudicial
settlement
or
summary
settlement, it shall appear that an heir or
other person has been unduly deprived of
his lawful participation in the estate, such
heir or person may compel the settlement of
the estate in the courts for the purpose of
satisfying such lawful participation.
If within the same 2-year period, it shall

appear that there are debts outstanding


against the estate or that an heir or other
person has been unduly deprived of his
lawful participation payable in money, the
court having jurisdiction of the estate may
after hearing settle the amount of such
debts or lawful participation and order how
much and in what manner each distribute
shall contribute in the payment thereof,
and may issue execution against the bond
or the real estate belonging to the deceased
or both (Rule 74, Sec. 4)
(Manuel R. Riguera Special Proceedings
Notes).
Two year lien upon real property shall be
annotated on the title issued to the
distributees and after the lapse of the
period, may be cancelled by the register of
deeds without court order.

Unpaid creditor may, within the two-year


period, file a motion in the court wherein
such summary settlement was had for
payment of credit.

After the lapse of the two- year period, an


ordinary action may be instituted against
the distributees within the statute of
limitations, but not against the bond.

Note: No bond is necessary when only real


estate is involved because the lien as
recorded is sufficient security for any claim
which may be filed under Sec 4, that is,
when an heir or other person has been
unduly deprived of his lawful participation
in the estate.

REMEDIES OF AGGRIEVED PARTIES

AFTER EXTRA-JUDICIAL SETTLEMENT


OF ESTATE
EFFECT OF EXTRAJUDICIAL PARTITION
ON THIRD PERSONS
An EXTRAJUDICIAL SETTLEMENT despite
the publication SHALL NOT BE BINDING
on any person who has NOT participated
therein or who had NO notice of death of
the decedent. This is because the procedure
in Section 1, Rule 74 is an EX PARTE
PROCEEDING (Sampilo, et. al. vs. CA, et.
al., G.R.NO. L-10474, February 28,1958).
A SUMMARY SETTLEMENT is likewise NOT
BINDING upon heirs or creditors who were
not parties therein or had no knowledge
thereof.
BAR QUESTION (2009)
Q: Pinoy died without a will. His wife,
Rosie and three children executed a deed
of extrajudicial settlement of his estate.
The deed was properly published and
registered with the Office of the Register
of Deeds. Three years thereafter, Suzy
appeared, claiming to be the illegitimate
child of Pinoy. She sought to annul the
settlement
alleging
that
she
was
deprived of her rightful share in the
estate. Rosie and the Three Children
contended that (1) the publication of the
deed constituted constructive notice to
the whole world, and should therefore
bind Suzy; and (2) Suzys action had
already prescribed. Are Rosie and the
Three Children Correct?
A: NO, the contention is not correct. Suzy
can file a complaint to annul the
extrajudicial settlement and she can recover
what is due her as such heir if her status
as an illegitimate child of the deceased has
been established. The publication of the
settlement does not constitute constructive

notice to the heirs who had no knowledge or


did not take part in it because the same
was notice after the fact of execution. The
requirement of publication is intended for
the protection of creditors and was never
intended to deprive heirs of their lawful
participation in the decedents estate. She
can file the action therefor within four (4)
years after the settlement was registered.
REMEDIES OF AN EXCLUDED CREDITOR
1. Proceed Against the Bond
(Rule 74, Sec. 4)
a. The unpaid creditor MAY PROCEED
against the bond by filing, WITHIN 2
YEARS, a motion for the payment of
his credit in the court wherein such
summary settlement was had.
b. AFTER the lapse of the 2 year
period, the creditor may NO
LONGER proceed against the bond,
BUT can institute an ordinary
action against the distributees
within the statute of limitations.
2. Petition for Letters of Administration
3. Action to annul a deed of extrajudicial
settlement on the ground of fraud should
be filed within four years from the discovery
of fraud. (Regalado, 2008)
4. Proceed Against the Real Property
a. The lien subsists for 2 years.
b. The 2-year lien upon the real
property distributed by extrajudicial
or summary settlement shall be
annotated on the title issued to the
distributees and after 2 years will be
cancelled by the register of deeds
without need of court order (LRC
CIRCULAR 143)
5. Ordinary Civil Action

OF ESTATE
REMEDIES OF AN EXCLUDED HEIR (S-AR-A)
1. Action to compel settlement of estate
(Rule 74, Sec. 4)
2. Action for rescission on the ground of
lesion (Art. 1381, par. 1, NCC)
Prescriptive period is 4 years
3. Accion Reivindicatoria
10 years, Implied Trust (Lajom v.
Viola, GRN 47475, May 6, 1942)
4. Annulment on the ground of fraud
Prescriptive period is 4 years
(Gerona v.De Guzman, GR L19060, 1964)
PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
If on the date of the expiration of the period
of two (2) years prescribed in the preceding
section the person authorized to file a claim
is:
1. a minor;
2. or mentally incapacitated, or
3. is in prison or;
4. outside the Philippines;
He may present his claim within one (1)
year after such disability is removed.
(Section 5, Rule 74).
RULE 75
PRODUCTION OF WILL; ALLOWANCE OF
WILL NECESSARY
Will is an act whereby a
permitted, with the formalities
by law, to control to a certain
disposition of his estate, to take
his death.

person is
prescribed
degree the
effect after

PROCEDURE IN JUDICIAL SETTLEMENT

Death of Decedent
Petition for Probate of the will, if any
Court Order fixing the time and place for probate

Publication of Hearing
wspaper of general circulation. Notice shall also be given to the designated/known heirs, legatees and devisees

Issuance of Letters Testamentary/Administration

Filing of Claims
Payment of Claims
Distribution

PROBATE OF A WILL
A judicial act whereby an instrument is
adjudged valid and is ordered to be
recorded. It is the statutory method of
establishing the proper execution of the
instrument and giving notice of its
contents. The probate of a will by the court
having jurisdiction thereof is considered as
conclusive as to its due execution and
testamentary capacity of the testator
(Mercado v. Santos, No. 45629, 22
September 1938).

The act of proving in a court a document


purporting to be the last will and testament
of a 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.(Jurado, Comments
and Jurisprudence on Succession (2009),
p.134)
BAR QUESTION (2005)
Q: After Lulus death, her heirs brought
her last will to a lawyer to obtain their
respective shares in the estate. The
lawyer prepared a deed of partition
distributing Lulus estate in accordance
with the terms of her will. Is the act of
the lawyer correct? Why?
A: No. No will shall pass either real or
personal estate unless it is proved and
allowed in the proper court.

MANDATORY NATURE
PROCEEDINGS

OF

PROBATE

No will shall pass either real or personal


property unless it is proved and allowed in
accordance with the Rules of Court (Art.
838, 1st par., NCC; Sec. 1, Rule 75).
Q: May the heirs divide the estate extra
judicially notwithstanding the fact that the
decedent left a will?
A: NO. This would render nugatory the
provision of law requiring the probate of a
will before real or personal property passes
under such will. Public policy requires that
the will be presented to the court for
appropriate probate proceeding so that the
will of the person to dispose of his property
according to his wishes may not be
nullified.

Exceptions:
a. The heirs divide the estate according
to the will; pay the creditors
accordingly so that none of them may
be prejudiced. By permitting partition
and division of estate without judicial
proceedings would enable the heirs to
take over their respective shares in
the inheritance without delay and
thereby avoid expenses and waste
(McMicking v. Sy Combieng, 21 Phil.
219).
b. If the testator should make a partition
of his properties by an act inter vivos,
or by his will such partition shall
stand in so far as it does not prejudice
the legitime of the forced heir (MangOy v. CA, 144 SCRA 33).
THE INTRINSIC VALIDITY OF A WILL
General rule: The probate courts authority
is limited to:
1) Extrinsic validity of the will.
2) Due execution thereof.
o The will was executed
strictly in accordance
with
the
formalities
required by law;
o The testator was of
sound
and
disposing
mind when he executed
the will;
o There was no vitiation of
consent through duress,
fear or threats;
o It was not procured by
undue
or
improper
pressure or influence on
the
part
of
the
beneficiary,
or
some
other person for his
benefit; and
o The signature of the
testator is genuine (Civil

Code Art. 839).


3) Testators testamentary capacity.
4) Compliance with the requisites
or solemnities prescribed by law.

thereto the statute of limitations of action


(Guevara v. Guevara, GRN L-5405, Jan. 31,
1956, 98 Phil. 249).

Exception: PRINCIPLE OF PRACTICAL


CONSIDERATION

Waste
of
time/effort/expense plus added anxiety are
the practical considerations that induce us
to a belief that we might as well meet headon the issues of the validity of the
provisions of the will. (Nuguid v. Nuguid,
G.R. No. L-23445, June 23, 1966)

DOCTRINE OF ESTOPPEL INAPPLICABLE


IN PROBATE

If there is a defect that is apparent on the


face of the will. (Nepomuceno v. CA, G.R.NO.
L-62952, October 9, 1985)
PROCEEDING IN REM
It is binding upon the whole world.
General rule: Notice by publication is the
act which vests the court with jurisdiction.
Exception: HOWEVER, this rule DOES
NOT APPLY in instances when the testator
petitions for the probate of his will, since a
newspaper
publication
is
NOT
a
requirement here.

To satisfy the requirement of due


process, heirs, devisees, legatees
and executors are still required to
be notified personally or by mail.

If the testator is the petitioner,


notice shall be sent only to his
compulsory heirs (Rule 76, Sec.
3).

IMPRESCRIPTIBLE
Public policy requires that the will of the
testator must be obeyed.
Inasmuch as the probate of wills is required
by public policy, the State could not have
intended to defeat the same by applying

Doctrine of estoppel is not applicable in


probate proceedings since the presentation
and the probate of a will are required by
public policy. (Fernandez, et al. v. Dimagiba,
L-23638, October 12, 1967)
Exception: If the subsequent will which
allegedly revoked the first will is proved to
be VOID.
WHO MAY PETITION FOR PROBATE;
PERSONS ENTITLED TO NOTICE
The following may petition for the allowance
of a will: (THE-CD)
a. Testator himself during his lifetime
b. Heir (person interested in the estate)
c. Executor
d. Creditor
e. Devisee or legatee
INTERESTED PARTY
An INTERESTED PARTY is one who would
be benefited by the estate such as an heir
or one who has a claim against the estate
such as a creditor. (Sumilang v. Ramagosa,
G.R.No. L 23135, December 26, 1975)
DUTY OF CUSTODIAN OF THE WILL
To deliver the will within 20 days after he
knows of the death of the testator to the
court having jurisdiction or to the executor
named in the will (Rule 75, Sec.2)
DUTY OF THE EXECUTOR NAMED IN
THE WILL
To present the will within 20 days after he

knows of the death of the testator or after


he knows that he is named the executor to
the court having jurisdiction, unless the
will has reached the court in any other
manner
Signify to the court in writing his
acceptance of the trust or his refusal to
accept it (Rule 75, Sec.3)

NEGLECT OF DUTY
If the custodian or the executor neglects to
deliver the will, they may be subject to a
fine not exceeding Php 2,000.00 (Rule 75,
Sec. 4).
If
the
custodian
neglects
without
reasonable cause to deliver the will, when
ordered to do so, he may be committed to
prison until he delivers the will (Rule 5,
Sec. 5).
RULE 76
ALLOWANCE AND DISALLOWANCE OF
WILL PERSON WHO MAY FILE PETITION
FOR ALLOWANCE
(Rule 76, Sec. 1)
1. Executor
2. Devisee
3. Legatee
4. Person interested in the estate
5. Testator himself during his lifetime
6. Any creditor
Mandamus is not proper to compel a
mother to produce the fathers holographic
will. This is because there is a plain,
speedy, and adequate remedy in the
ordinary course of law, that is, the filing of
a petition for probate under S1 R76 and
then moving for the production of the will
under S2 (5) R75. Under S1 R76, an
interested person may petition the court
having jurisdiction to have the will allowed,
whether the same be in his possession or
not, or is lost or destroyed. (Uy v. Lee,

January 15, 2010)


2 KINDS OF PROBATE PROCEEDINGS
1. Ante mortem during the lifetime
of the testator
2. Post mortem after the death of
the testator
ADVANTAGES
OF
ANTE
MORTEM
PROCEEDINGS
1. Fraud,
intimidation,
undue
influence are minimized
2. The will can be corrected by the
testator immediately when the
will does not comply with the
requirements of law
3. Notice of the allowance of his will
shall be sent only to his
compulsory heirs
CONTENTS
OF
PETITION
ALLOWANCE OF WILL

FOR

A petition for the allowance of a will must


show so far as known to the petitioner:
a. Jurisdictional facts (Cuenco v. CA,
G.R.NO. L 24742, October 26, 1973)
i. Death of the decedent
ii.His residence at the time of his
death in the province of where the
probate court is sitting
iii. If he is an inhabitant of another
country, leaving of his estate in such
province
b. Names, ages and residences of heirs,
legatees, and devisees;
c. Probable value and character of the
property of the estate;
d. Name of person for whom letters are
prayed;
e. Name of person having custody of will,

if it has not yet been delivered to the court.


Effect of Probate of a Will
It is conclusive as to the execution
and validity of the will. (Jurado, Comments
and Jurisprudence on Succession (2009),
page 144)
Outline in brief the procedure for the
allowance of the will.
1. Filing of petition for allowance of will.
2. Court issues notice of hearing.
3. Notice of hearing published 3 weeks
consecutively and notice sent to
known heirs, legatees, devisees, and
executor (if not petitioner) (Rule 76,
Sec. 3)
4. Jurisdictional
facts:
Jurisdiction,
venue, filing of petition, publication,
and notice.
5. Hearing for allowance: Probate court
tackles
only
extrinsic
validity.
Required proof.
6. Court
issues
order
allowing/disallowing will. If allowing,
court issues letters testamentary.
(Prof. Manuel R. Riguera - Special
Proceedings Notes)
MODES OF NOTIFICATION
1) If by mail 20 days before hearing.
2) If through personal notice 10 days
before hearing. (Rule 76, Sec. 4)
PROOF AT HEARING
In the hearing for the probate of a
will, the compliance of publication and
notice must first be shown before
introduction of testimony in support of the
will. (Rule 76, Sec. 5)
EVIDENCE REQUIRED IN SUPPORT OF
THE WILL
Notarial Will
Uncontested
(Rule 76, Sec. 5)
Only one

Contested ( Rule
76, Sec. 11)
All subscribing

subscribing
witness may testify

witnesses and the


notary public
must testify

Holographic Will
Uncontested
(Rule 76, Sec. 5)
At least one
witness who
knows the
handwriting and
signature of the
testator explicitly
declare that the
will and the
signature are in
the handwriting of
the testator

Contested ( Rule
76, Sec. 11)
Three witnesses
who knows the
handwriting of the
testator
In the absence
thereof, expert
testimony may be
resorted to

FACTS THAT SHOULD BE PROVED TO


ALLOW A LOST OR DESTROYED WILL
1. That the will has been duly executed by
the testator;
2. That the will was in existence when the
testator died, or if it was not, that it has
been fraudulently/accidentally destroyed in
the lifetime of the testator without his
knowledge;
3. The provisions of the will are clearly
established by at least 2 credible witnesses.
(Rule 76, Sec. 6)
PROBATE OF LOST OR
HOLOGRAPHIC WILL
General Rule: Not allowed.

DESTROYED

Exception: A lost or destroyed holographic


will could be proved by a photostatic copies
thereof. (Rodelas vs Aranza, G.R.No. L58509, December 7, 1982)
PROOF OF HOLOGRAPHIC WILL IF
TESTATOR PETITIONS FOR PROBATE
Affirmation by the testator shall be
sufficient evidence of the genuineness and
due execution thereof. (Rule 76, Sec. 12)

ADMINISTRATION OF ESTATE
THEREUNDER
GROUNDS FOR DISALLOWING A WILL
(FCDPIFM)
a. The will was not executed and attested as
required by law;(FORMALITIES)
b. The testator was insane or otherwise
mentally incapable of making a will at the
time of its execution; (CAPACITY)
c. The will was executed through force or
under duress or the influence of fear, or
threats;(DURESS)
d. The will was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person for his benefit; (PRESSURE AND
INFLUENCE)
e. The signature of the testator was
procured by fraud or trick;(FRAUD)
f. The testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time of affixing his
signature thereto. (MISTAKE)
(Art 839, New Civil Code); (Rule 76, Sec. 9)
SUBSTANTIAL COMPLIANCE
If the will has been executed in substantial
compliance with the formalities of the law,
and the possibility of bad faith and fraud is
obviated, said will should be admitted to
probate (Civil Code, Art. 809).
Note: the list is exclusive (Spouses Ajero
vs.CA, GR, 106720, September 15, 1994)

LAW GOVERNING FORMS OF WILLS


The law in force at the time of the execution
of the will (Civil Code, Art. 795)
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF THE PHILIPPINES AND

REPROBATE
Will proved outside Philippines may be
allowed here (Rule 77, Sec. 1).
A will allowed to probate in a foreign
country must be probated again in the
Philippines. This is also known as
reprobate. The venue for the petition for
re-probate is the same as that provided for
in Rule 73.
TWO TYPES OF ESTATE PROCEEDINGS:
1. DOMICILIARY ADMINISTRATION the
proceeding instituted in last residence of
the decedent.
2. ANCILLARY ADMINISTRATION the
administration proceedings where he left
his estate.
Requisites of Ancillary Administration
(Sec. 2)
1. There must be a will;
2. Filing of:
a. Copy of the will executed in foreign
country
b. Order or decree of foreign court
allowing such will
c. Authentication of requisites a and b
above
3. Notice of time and place of hearing;
4. Hearing;
5. Certificate of allowance.

Note: Administration of an estate extends


only to the assets of the decedent found
within the state or country where it was
granted. The administrator appointed in
one state has no power over property in
another state or country. (Leon & Ghezzi v.
Manufacturer Life Insurance, G.R.No. L3677, November 29, 1951)
BAR QUESTION (2014)

Q: Johnny, a naturalized citizen of the USA


but formerly a Filipino citizen, executed a
notarial will in accordance with the laws of
the State of California, USA. Johnny, at the
time of his death, was survived by his niece
Anastacia, an American citizen residing at
the condominium unit of Johnny located at
Fort Bonifacio, Taguig City; a younger
brother, Bartolome, who manages Johnnys
fish pond in Lingayen, Pangasinan; and a
younger sister, Christina, who manages
Johnnys rental condominium units in
Makati City. Johnnys entire estate which he
inherited from his parents is valued at P200
million. Johnny appointed Anastacia as
executrix of his will.

probate procedure;
e. Legal requirements in said foreign
country for the valid execution of the will;
The necessity of presenting evidence on the
foreign laws upon which the probate in the
foreign country is based is impelled by the
fact that our courts cannot take judicial
notice of them (Vda. de Perez vs. Tolete,
G.R. No. 76714, June 2, 1994).

Can Johnnys notarial will be probated


before
the
proper
court
in
the
Philippines?

The local administrator has power only over


the property of the decedent in the
Philippines.

A: Yes, the formal validity of a will is


governed also by the national law of the
decedent. A will proved and allowed in a
foreign country, according to the laws of
such country, may be allowed, filed, and
recorded by the proper Regional Trial Court
in the Philippines.
WHAT SHOULD BE FILED (Rule 77, Sec.2)
Petition for allowance accompanied with:
1. Authenticated copy of the will
2. Authenticated
decree
of
the
allowance thereof
IN REPROBATE OF WILL PROVEN
ABROAD, PROPONENT MUST PROVE:
(Suntay vs Suntay, G.R.No. L-3087 and
L-3088, July 31, 1954)
a. Testator was domiciled in the foreign
country;
b. Will has been admitted to probate in
such country;
c. Foreign court, under the laws of the
foreign country, was a probate court with
jurisdiction over the proceedings;
d. Proof of compliance with the foreign

Doctrine of Processual Presumption


In the absence of proof of the foreign law, it
is presumed that it is the same as that in
the Philippines.This is alo known as the
Doctrine of Processual Presumption.

EFFECTS OF REPROBATE
(Rule 77, Sec. 3 and 4)
1. The will shall be treated as if originally
proved and allowed in Philippine courts;
2. Letters testamentary or administration
with a will annexed shall extend to all
estates of the Philippines;
3. After payment of just debts and expenses
of administration, the residue of the estate
shall be disposed of as provided by law in
cases of estates in the Philippines belonging
to persons who are inhabitants of another
state or country

BAR QUESTION (2010)


Q:Pedrillo, a Fil-Am permanent resident
of Los Angeles, California at the time of
his death, bequeathed to Winston a sum
of money to purchase an annuity. Upon
Pedrillos demise, his will was duly
probated in Los Angeles and the
specified sum in the will was in fact used
to purchase an annuity with XYZ of Hong
Kong so that Winston would receive the
equivalent of US$1,000 per month for

the next 15 years. Wanting to receive


the principal amount of the annuity,
Winston files for the probate of Pedrillos
will in the Makati RTC. As prayed for,
the
court
names
Winston
as
administrator of the estate. Winston now
files in the Makati RTC a motion to
compel XYZ to account for all sums in its
possession forming part of Pedrillos
estate. Rule on the motion.
A: The motion should be denied. Makati
RTC has no jurisdiction over XYZ granted
to Winston only covers all Pedrillos estate
in the Philippines. This cannot cover the
annuities in Hongkong. At the outset,
Makati RTC should not have taken
cognizance of the petition filed by Winston,
because the will does not cover any
property of Pedrillo located here in the
Philippines. of Hongkong. The letters of
administration
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO
WHOM ISSUED
LETTERS OF ADMINISTRATION
The following may administer the estate:
1. Executor - The person named in the will
to administer the decedents estate and
carry out the provisions thereof.
2. Administrator - The person appointed
by the court to administer the estate where
the decedent died intestate (Rule 80)
3. Administrator with a will annexed
the one appointed by the court in cases
when, although there is a will, the will does
not appoint any executor, or if appointed,
said person either incapacitated or
unwilling to serve as such (Rule 79, Sec.1).

Executor
Nominated by the

Administrator
Appointed by the

testator
appointed
court

and
by the

Duty to present the


will to court

court if the testator


did not appoint, or
if the appointee is
incapacitated
or
refused

Testator
may
provide
that
executor may serve
without bond (but
the
court
may
direct him to give
bond to pay debts)

Administrator must
always give a bond

Compensation may
be provided for by
the testator in the
will;
otherwise,
Rule 85, Sec. 7
shall apply.

Compensation is to
be
governed
by
Rule 85, Sec. 7

WHO ARE INCOMPETENT TO SERVE AS


EXECUTORS OR ADMINISTRATORS
No person is competent to serve as executor
or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines;
(c) Is in the opinion of the court unfit to
execute the duties of the trust by reason of
drunkenness, improvidence, or want of
understanding or integrity, or by reason of
conviction of an offense involving moral
turpitude. (Rule 78, Sec. 1)
(d) The executor of an executor cannot
administer the estate of the first testator.
(Rule 78, Sec.2)
Failure to file income tax is not an offense
involving moral turpitude which would
make a person incompetent to serve as
executor or administrator. (Republic v.
Marcos, August 4, 2009)
BAR QUESTION (2014)

Q:Johnny, a naturalized citizen of the


United States of America but formerly a
Filipino citizen, executed a notarial will in
accordance with the laws of the State of
California, USA. Johnny, at the time of his
death, was survived by his niece Anastacia,
an American citizen residing at the
condominium unit of Johnny located at Fort
Bonifacio, Taguig City; a younger brother,
Bartolome, who manages Johnnys fish
pond in Lingayen, Pangasinan; and a
younger sister, Christina, who manages
Johnnys rental condominium units in
Makati City. Johnnys entire estate which he
inherited from his parents is valued at P200
million. Johnny appointed Anastacia as
executrix of his will.
Is Anastacia qualified to be the executrix of
Johnnys notarial will?
A: Yes, assuming that Anastacia is of legal
age, she is qualified to be an executor
although an alien because she is a resident
of the Philippines.
Letters Testamentary
An authority issued to an executor named
in the will to administer the estate (Festin,
Special Proceedings: A Foresight to the Bar
Exam, [2011] page 46)
Letters of Administration
An authority issued by the court to a
competent person to administer the estate
of the deceased who died intestate (Festin,
Special Proceedings: A Foresight to the Bar
Exam, [2011] p. 46)

WHEN
AND
TO
WHOM
LETTERS
OFADMINISTRATION GRANTED
If a person dies testate, the initiatory
pleading is a:
1. Petition for allowance of will and for
letterstestamentary if there is an executor
named in the will, or

2. Petition for allowance of will and for


lettersof administration with the will
annexed, incase there is a will but there is
no executornamed in the will or the
executor named inthe will is incompetent,
refuses theappointment, or fails to give a
bond.
If a person dies intestate, the initiatory
pleading isa petition for letters of
administration (Prof.Manuel R. Riguera
Special Proceedings Notes)

ORDER OF PREFERENCE
1. The surviving husband or wife or the
next of kin, or both in the discretion of the
court, or to such person as such surviving
spouse orn ext of kin, request to have
appointed, if competent and willing to serve.
(SURVIVING SPOUSE OR NOMINEE)
2. If the surviving spouse or the next of kin
or the person selected by them be
incompetent or unwilling to serve, or if the
surviving spouse or next of kin neglects for
30 days after the death of the decedent to
apply for administration, any one or more of
the principal creditors, if competent and
willingto serve.(CREDITORS)
3. If there is no such creditor competent
andwilling to serve, it may be granted to
suchother person as the court may select.
(STRANGER)
NEXT OF KIN are those persons who are
entitled by law to receive the decedents
property
(REGALADO,Vol.II,page
46
;Ventura
vs.
Ventura,G.R
No.
L46320,October 5,1939)
They are heirs under the law of succession.
Generally, the nearest of kin, whose interest
is more preponderant, is preferred in the
choice of administrator.

BASIS FOR THE PREFERENTIAL RIGHT


Those who will reap the benefits of a wise,
speedy and economical administration of
the estate or on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the higher interest
and most influential motive to administer
the estate correctly.
Letters of administration may be granted to
any person or any other applicant even if
there are other competent persons with a
better right to the administration, if such
persons fail to appear when notified and
claim the letters of administration. (Rule
79, Sec. 6)
RULE ON SETTING ASIDE THE ORDER
OF PREFERENCE
GENERAL RULE: the court cannot set
aside the order of preference under Rule 78,
Sec. 6.
EXCEPTION: In case the persons who have
the preferential right to be appointed are
not competent or are unwilling to serve,
administration may be granted to such
other person as the court may appoint
(Villamor vs. Court of Appeals, G.R. No. L41508 June 27, 1988).
The interest in the estate is what principally
determines
the
preference
in
the
appointment of an administrator of the
estate of a deceased person, and if, under
the circumstances of each case, it develops
that there is another who has more interest
therein than the surviving spouse, for
instance, the preference established in the
latters favor becomes untenable (De
Guzman vs. Limcolioc, G.R. No. 46134, April
18,
1939).
APPOINTMENT OF
CO-ADMINISTRATORS.

The appointment of co-administrators has


been upheld for various reasons, to wit:
1. To have the benefit of their judgment
and, perhaps, at all times to have
different interests represented.
2. Where justice and equity demand that
opposing parties or actions be
represented in the management of the
estate.
3. Where the estate is large or, from any
cause,an intricate and perplexing one
to settle.
4. To have all interested persons satisfied
and the representatives to work in
harmony for the best interests of the
estate.
5. When a person entitled to the
administrationof an estate desires to
have
another
competent
person
associated with him in theoffice.
(Regalado, 2008)
NOTE: More than one executor may be
issued letters testamentary in accordance
with thenomination in the will. Also, while
as a rule thecourt appoints only one
administrator for intestate estates, more
than one administratormay also be
appointed. Sec. 6 provides thatletters of
administration may be issued to boththe
surviving spouse and the next of kin, while
Sec.3, Rule 81 and Sec. 2, Rule 82 speak of
jointexecutors or co-administrators.

SCOPE OR LIMIT OF ADMINISTRATION


The general rule universally recognized is
that administration extends only to the
assets of a decedent found within the state
or country where it was granted, so that an
administrator appointed in one state or
country has no power over the property in
another state or country (Leon vs.
Manufacturers Life Insurance Co., G.R. No.
L-3677, November 29, 1951).

RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
Section 1: Opposition to issuance of
letters testamentary; Simultaneous filing
of petition for administration
Any interested person in a will may, by filing
a written opposition, contest the petition on
the ground of the incompetency of the
person for whom letters are prayed therein,
on the ground of the contestants own right
to the administration, and may pray that
letters issue to himself, or to any competent
person or persons named in the opposition.
(Rule 79, Sec. 4)

He should state the grounds in writing why


he is opposing and he may attach a petition
for letters of administration.
DIRECT AND MATERIAL INTEREST
In order to be a party, a person must have a
material and direct interest, and not one
that only indirect or contingent interest.
(Saguinsin v. Lindayag,G.R. No. L-17759,
December 17, 1962)
Unlike that of a special administrator, the
appointment of a regular administrator
cannot be procured by mere motion. A
petition for letters of administration must
be filed under S2 R79 (Ocampo v. Ocampo,
July 5, 2010)

BAR QUESTION (2008)


Q: Domencio and Gen lived without
benefit of marriage for 20 years, during
which time they purchased properties
together. After Domencio died without a

will, Gen filed a petition for letters of


administration.
Domencios
siblings
opposed the same on the ground that
Gen has no legal personality. Decide.
A: A petition for letters of administration
may be filed by any interested person. Gen
would be considered an interested person if
she was not married to Domenico, because
she can claim co-ownership of the
properties left by him under their property
regime of a union without marriage under
conditions provided in the Family Code.

CONTENTS OF PETITION FOR LETTERS


OF ADMINISTRATION
A petition for letters of administration must
befiled by an interested person and must
show, so far as known to the petitioner:
(a) The jurisdictional facts such as:
- The death of the testator;
- The testators residence at the time
of his death in the province where
the probate court is sitting; or
- If the testator is an inhabitant of a
foreign country, his having left his
estate in such province (Vda. De
Manalo vs. Court of Appeals, G.R.
No. 129242, January 16, 2001).
(b) The names, ages, and residences of the
heirs,and the names and residences of the
creditors, ofhe decedent;
(c) The probable value and character of
theproperty of the estate; and
(d) The name of the person for whom letters
ofadministration are prayed.
But no defect in the petition shall render
void
the
issuance
of
letters
of
administration. (Rule 79, Sec. 2)

Only an heir or creditor can oppose the


issuance of letters of administration as they
are the only ones who would be benefited
by the estate (Chua v. Court of Appeals,
G.R.No.150793, November 19, 2004).
Hence, an heir who has assigned his
hereditary
rights
before
settlement
proceedings were commenced, is no longer
an interested person qualified to file or
oppose
a
petition
for
letters
ofadministration.
PUBLICATION AND NOTICE OF HEARING
When petition for letters of administration
is filed in the court having jurisdiction,
such court shall fix a time and place for
hearing the petition, and shall cause notice
thereof to be given to the known heirs and
creditors of the decedent, and to any other
persons believed to have an interest in the
estate in the manner provided in Sections 3
and 4 of Rule 76 (Rule 79, Sec. 3)
This rule is jurisdictional. Where no notice
has been given to persons believed to have
an interest in the estate of the deceased
person, the proceeding for the settlement of
the estate is void and should be annulled
(Eusebio vs. Valmores, G.R. No. L-7019, May
31, 1955).
Section 4: Grounds For Opposing The
Letters Testamentary And
Administration.
1. Letters Testamentary:
a. Incompetence
2. Letters of Administration:
a. Incompetence
b. Preferential right under Rule
78, Sec.6
POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS; RESTRICTIONS
ON THE POWERS
OF EXECUTOR /ADMINISTRATOR OF

THE ESTATE:
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. To examine and make invoices of the
property belonging to the partnership in
caseof a deceased partner;
3. To make improvements on the properties
under administration with the necessary
court approval except for necessary repairs;
4. To possess and manage the estate when
necessary:
a. payment of debts; and
b. payment of expenses of
administration;
5. To maintain in tenantable repairs houses
ando ther structures and fences and to
deliver the same in such repair to the heirs
or devisees when directed so to do by the
court.
LIMITATIONS ON THE POWER OF AN
ADMINISTRATOR:
1. An administrator has no power to
exercise acts of ownership over the estate
i.e. disposition,sale etc.
2. The constitution of a lease over the
property of the estate is an act of
administration and leave of court is not
required. Any interested party who desires
to impugn the same must do so in an
ordinary civil action as the probate court
has no jurisdiction over the lessee
(Regalado, 2008).
RULE 80
SPECIAL ADMINISTRATOR
APPOINTMENT OF SPECIAL
ADMINISTRATOR
The court may
appoint a special
administrator to take charge of the estate:
a. When there is a delay in granting
letterstestamentary or of administration by

anycause including an appeal from the


allowanceor disallowance of a will. (Rule 80,
Sec. 1)

administrator who is appointed to act in


lieu of the general administrator. (Roxas
vs. Pecson)

b. If the executor or administrator has a


claimagainst the estate he represents, the
courtshall appoint a special administrator
for theadjustment of the claim. (Rule 86,
Sec. 8)

In MATIAS VS. GONZALES, the Supreme


Court held that the ruling laid down in
Roxas vs. Pecson to the effect that "only
one
special
administrator
may
be
appointed to administrator temporarily",
must be considered in the light of the facts
obtaining in said case.
PUBLICATION AND NOTICE
INDISPENSABLE

ORDER OF PREFERENCE NOT


APPLICABLE
Section 6, Rule 78 of the Rules of Court
refers to the appointment of regular
administrators of estates; Section 1, Rule
80, on the other hand, applies to the
appointment of a special administrator. It
has long been settled that the appointment
of a special administrator is not governed
by the rules regarding the appointment of
regular administrators (Heirs of Castillo vs.
Gabriel, G.R. No. 162934, November 11,
2005)
RATIONALE FOR THE APPOINTMENT OF
A SPECIAL ADMINISTRATOR:
The principal object of appointment of
temporary administrator is to preserve the
estate until it can pass into hands of
person fully authorized to administer it for
the benefit of creditors and heirs. (Heirs of
Castillo vs. Gabriel, G.R. No. 162934,
November 11, 2005)
Q: Is the appointment of two special
administrators allowed?
A: No. As under the law, only one general
administrator may be appointed to
administer, liquidate and distribute the
estate of a deceased spouse, it clearly
follows that only one special administrator
may
be
appointed
to
administer
temporarily said estate, because a special
administrator
is
but
a
temporary

Publication and notice provided in Rule 79,


Sec. 3 is a jurisdictional requirement even
in
the
appointment
of
a
special
administrator (De Guzman vs. Angeles, G.R.
No. 78590, June 20, 1988).
REGULAR ADMINISTRATOR VS. SPECIAL
ADMINISTRATOR
Regular
Administrator
Order of
appointment is
final and may be
the subject of
appeal

Special
Administrator
Order of
appointment is an
interlocutory order
and may not be the
subject of an
appeal

One of the
obligations is to pay
the estate's debts

He cannot pay the


estate's debts

Appointed if
decedent:

Appointed if there
is :

1.Died intestate or;


2. Did not appoint
an administrator
or;

1.Delay in granting
letters
testamentary
or
letters
of
administration, or;

3. If the appointee
refused or is not

2. If the executor is
a claimant of the

qualified.

estate
represents.

he

Q: IS THE ORDER OF APPOINTMENT OF


A SPECIAL ADMINISTRATOR
APPEALABLE?
A: NO. The appointment of a special
administrator lies entirely in the discretion
of the court, and is not appealable. The
only remedy against the appointment of a
special administrator is Certiorari under
Rule 65 of the Rules of Court (Tan vs.
Gedorio, Jr., G.R. No. 166520, March 14,
2008)
DUTIES/POWERS OF THE SPECIAL
ADMINISTRATOR
1. Possession and charge of the goods,
chattels, rights, credits and estate of the
deceased.
2. Preserve the properties.
3. Commence and maintain suit for the
estate.
4. Sell only: (1) perishable property; and (2)
property ordered by the court.
5. Pay debts only as may be ordered by the
court.
6. Make a true inventory and appraisal of
all real/personal property of decedent
within 3 months after his appointment
(except clothes of family, marriage bed, and
other articles for subsistence of family).
7. To render true and just account of his
administration
within
1
year
of
appointment.
8. To perform all orders by the court.
9. Give allowance to legitimate surviving
spouse or children of the decedent if the
court decrees such (grandchildren are not
entitled).
10. Deliver property he received to person
appointed as executor or administrator or
to such other person as may be authorized
by the court.

REMOVAL OF SPECIAL ADMINISTRATOR


A special administrator may be
removed by the trial court even if the
grounds for his removal are not enumerated
under the Rules. This is because special
administrators are not covered by the rules
covering
regular
administrators.
The
appointment of special administrators is
left to the sound discretion of the courts,
and thus, the removal of special
administrators is also left to the sound
discretion of the courts. (Co vs. Rosario et.
al., G.R. No. 160671, April 30, 2008)
RULE 81
BOND OF EXECUTORS AND
ADMINISTRATORS
Before an executor or administrator enters
upon the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond, in such sum as the court
directs, conditioned as follows:
(a) To make and return to the court, within
three(3) months, a true and complete
inventory of all goods, chattels, rights,
credits, and estate of the deceased which
shall come to his possession or knowledge
or to the possession of any other person for
him;
(b) To administer according to these rules,
and, if an executor, according to the will of
the testator, all goods, chattels, rights,
credits, and estate which shall at any time
come to his possession orto the possession
of any other person for him,and from the
proceeds to pay and discharge all debts,
legacies, and charges on the same, or such
dividends thereon as shall be decreed by
the court;
(c) To render a true and just account of his
administration to the court within one (1)
year, and at any other time when required
by the court;

(d) To perform all orders of the court by him


to beperformed.

PURPOSE OF THE BOND REQUIREMENT:


The bond posted by administrators and
executors is intended as an indemnity to
the creditors, the heirs and the estate. The
court shall fix the amount thereof and hold
it accountable for any breach of duty that
may be done by the administrator or
executor. The liability may be enforced by
motion or in a separate civil action. (Festin,
Special Proceedings: A Foresight to the Bar
Exam, [2011] p. 56)
Q: WHICH COURT HAS JURISDICTION
TO EXECUTE THE BOND?
A:While the probate court has jurisdiction
over the forfeiture or enforcement of an
administrators bond, it was not held that
the same matter may not be litigated in an
ordinary civil action brought before the
regular courts (Warner, Barnes & Co., Ltd.
vs. Luzon Surety Co, Inc., G.R. No. L-6637,
September 30, 1954)

RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION, AND REMOVAL
OF EXECUTORS AND ADMINISTRATORS
GROUNDS FOR REMOVAL OF
ADMINISTRATOR:
The court may remove an executor
oradministrator if he: (U-PAIR)
a. Becomes unsuitable to discharge
the trust
b. Neglects to perform an order or
judgment ofthe court;
c. Absconds;

d. Becomes insane;
e. Neglects to render his account and
settle the estate.
The grounds are not exclusive. There
may be other grounds for the removal of an
administrator, to wit:
a. The administrator disbursed the
funds of the estate without judicial
approval (Cotia vs. Jimenez, G.R. No. L12132, December 22, 1958)
b.
False
representation
by
the
administrator in securing his appointment
(Cobarrubias vs. Dizon, G.R. No. L-225,
February 26, 1946);
c. The administrator holds an interest
adverse to that of the estate (Garcia vs.
Vasquez, G.R. No. L- 26884, April 30, 1970);
or
d. Physical inability of the administrator
and consequent unsuitability to manage
the estate (De Borja vs. Tan, G.R. No. L6476, November 18, 1955)
The court may in its discretion permit
the executor or administrator to resign
(Rule 82, Sec. 2).
The rule on proceedings upon death,
resignation or removal of an executor or
administrator:
When an executor or administrator dies,
resigns, or is removed the remaining
executor or administrator may administer
the trust alone, unless the court grants
letters to someone act with him. If there is
no remaining executor or administrator,
administration may be granted to any
suitable person. (Rule 82, Sec. 2)
LAWFUL ACTS BEFORE REVOCATION,
RESIGNATION, REMOVAL ARE VALID
The lawful acts of an executor or
administrator
before
the
revocation,
resignation, or removal shall have the
validity as if there had been no such

revocation, resignation, or removal. (Rule


82, Sec. 3)

DUTY OF THE ADMINISTRATOR UPON


REVOCATION OF THE LETTERS OF
ADMINISTRATION
1. Surrender the letters to the court; and
2. Render his account within such time as
the court may direct
The order of removal is appealable.
(Borromeo v.Borromeo, G.R. No. L-6363,
September 15, 1955)
Discovery of a will does not automatically
terminate the letters of administration until
the will has been proved and allowed
pursuant to Section 1, Rule 82. ( De
Parreno v. Aranzanso, G.R. No. L-27657,
August 30, 1982)

POWERS OF NEW EXECUTOR OR


ADMINISTRATOR:
1. To collect and settle the estate not
administered;
2. To prosecute or defend actions
commenced by or against the former
executor or administrator; and
3. To recover execution on judgments
in the name of former executor or
administrator. (Section 4, Rule 82)

RULE 83
INVENTORY & APPRAISAL;
PROVISION FOR SUPPORT OF FAMILY

INVENTORY AND APPRAISAL TO BE


RETURNED
Within three (3) months after HIS
appointment
every
executor
or

administrator shall return to the court a


true inventory and appraisal of all the real
and personal estate of the deceased which
has come into his possession or knowledge.
(Rule 83, Sec. 1)
THREE-MONTH PERIOD NOT
MANDATORY
The fact that an inventory was filed after
the three-month period would not deprive
the probate court of jurisdiction to approve
it. The delay in filing the inventory by the
administrator, however, if not satisfactorily
explained, may be a ground for removal
(Sebial vs. Sebial, G.R. No. L-23419, June
27, 1975)
THE FOLLOWING ARTICLES SHALL NOT
BE INVENTORIED:
1. The clothes of the surviving spouse
and the minor children;
2. Marriage bed and bedding; and
3. Such provisions as will necessarily
be consumed in the subsistence of
the family of the deceased under the
courts direction. (Rule 83, Sec. 2)
ALLOWANCE DURING THE SETTLEMENT
OF THE ESTATE
The widow and the minor or incapacitated
children of the deceased shall receive from
the estate, under the courts direction, such
allowance as provided by law. (Rule 83, Sec.
3)
PROPERTIES IN POSSESSION OF THIRD
PERSONS MAY BE INVENTORIED
Property claimed by third persons may be
included in the inventory as part of the
assets of the assets and the probate court
may order such inclusion, but such order of
the probate court is only a prima facie
determination and does not preclude the
claimants from maintaining an ordinary
civil action for the determination of title
(Vda. De Paz vs. Vda. De Madrigal, G.R. No.
L- 8981, October 23, 1956)

another,
the
administration;
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS AND ADMINISTRATORS
1. To have access to, and examine and
take copies of books and papers
relating to the partnership in case of
a deceased partner;
2. To examine and make invoices of the
property
belonging
to
the
partnership in case of a deceased
partner;
3. To maintain in tenantable repairs,
houses and other structures and
fences and to deliver the same in
such repair to the heirs or devisees
when directed so to do by the court;
4. To make improvements on the
properties under administration
with the necessary court approval
except for necessary repairs;
5. To possess and manage the estate
when necessary:
i) For the payment of debts; and
ii) For the payment of expenses of
administration.
Note: The right of an executor or
administrator to the possession and
management of property of the deceased is
not absolute. It can only be exercised so
long as it is necessary for the payment of
debts and expenses of administration
(Estate of Hilario Ruiz v. Court of Appeals,
G.R. No.118671, Jan. 29, 1996)
The following are the restrictions on the
powers of administrator or executor:
1. He cannot acquire by purchase,
even at public or judicial action,
either in person or mediation of

property

under

2. He cannot borrow money without


authority from the court;
3. He cannot speculate with funds
under administration;
4. He cannot lease the property under
administration for more than 1 year;
Note: The administrator has the power to
enter into lease contracts involving the
properties of the estate even without prior
judicial
authority
and
approval.
(Mananquil v. Villegas, A.M. No. 2430, Aug.
30, 1990)
5. He cannot continue the business of
the deceased unless authorized by
the court;
6. He cannot profit by the increase or
decrease in the value of the property
under administration; and
7. He cannot exercise the right of legal
redemption over a portion of the
property owned in common sold by
one of the other co-owners.
(Herrera, Vol. III-A, pp. 116-117,
2005 ed.)
8. He cannot enter into any transaction
involving the estate subject to the
testate or intestate proceedings
without prior approval of the court.

Q: IN THE EXERCISE OF THE POWERS


OF
ADMINISTRATION
BY
THE
EXECUTOR OR ADMINISTRATOR, MUST
THERE BE LEAVE OF COURT?

A: NO. An administrator or executor has all


the powers necessary for the administration
of the estate and which powers he can
exercise without leave of court (Festin,
Special Proceedings: A Foresight to the Bar

Exam, [2011] p. 67)

RULE 85
ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
ADMINISTRATION EXPENSES(M-P-P)
Administration expenses should be those
which are necessary for the:

interested persons so that they may have


the opportunity to challenge the propriety
or the reasonableness of the fees. (Salonga
Hernandez & Allado v. Pascual, G.R.
127165, 2 May 2006.)

Note: When the executor or administrator


is an attorney, he shall not charge against
the estate any professional fees for legal
services rendered by him (Rule 85, Sec. 7).

3. Production of fruits.

WHEN EXECUTOR OR ADMINISTRATOR


TO RENDER ACCOUNT
General Rule: The rendering of accounting
by an administratorwithin (1) year is
mandatory, as shown by the word "shall" in
said rule.

They are expenses and its management for


the purpose of liquidation, payment of
debts, and distribution of residue among
the person entitled thereto. (Festin, Special
Proceedings: A Foresight to the Bar Exam,
[2015] p. 44)

Exception: The only exception is when the


court
otherwise
directs
because
of
extensions of the time for presenting claims
against the estate of for paying the debts or
disposing the assets of the estate. (Kalaw
vs. IAC,G.R. No. 74618, September 2, 1991)

1.Management of the estate,


2. Protection of the estate
destruction or deterioration, and

against

NATURE OF ATTORNEYS FEE


The Supreme Court has held that the
lawyer should:
1. First seek payment from the executor or
administrator who is primarily liable.
2. If the executor or administrator refuses
to pay the lawyer, the latter has two
alternatives in collecting fees for legal
services rendered in settling an estate.
TWO ALTERNATIVES:
A. The lawyer may file a separate suit
against the executor or administrator in the
latters personal capacity.
B.The lawyer may file a direct claim against
the estate itself for recovery of the fees as
administration expenses.
When a lawyer files a direct claim against
the estate, there should be notice to all

No
executor
or
administrator
or
administrator shall profit by the increase,
or suffer loss by the decrease or
destruction, without his fault, of any part of
the estate. (Rule 85, Sec. 2)
RULE 86
CLAIMS AGAINST THE ESTATE
Section 1: Duty Of The Court After
Granting Letters Testamentary Or Of
Administration:
The court shall issue a notice requiring all
persons having money claims to file them in
the office of the clerk of court.
Non-payment of docket fee for a money
claim is not a ground for its dismissal. The
probate court should just order the
payment of the docket fees within a

reasonable time. (Sheker v. Estate of Sheker,


G.R. No. 157912, December 13, 2007)
THE FOLLOWING ARE MONEY CLAIMS:
(CFSJ)
1. All claims for money against the
decedent,arising from contract, express or
implied,whether the same be due, not due,
or contingent;
Contingent claim is one by which, by its
nature is necessarily dependent upon an
uncertain event for its existence and claim,
and
its
validity
and
enforceability
depending upon an uncertain event (Gasket
and Co. vs. Tan Sit, G.R. No. 18405,
September 22, 1922)
2. All claims for funeral expenses;
3. All claims for expenses for the last
sickness ofthe decedent; and
4. Judgment for money against the
decedent.(Rule 86, Sec. 5)
Money claims referred in Section 5, Rule
86, arising from contract whether express
or implied are those money claims arising
out of contract, quasi contract, or law but
do not refer to those arising from crime or
quasi delict. (Aguas v. LLemos, G.R. No. L18107, August 30, 1962)
The enumeration provided in Section 5,
Rule 86 is exclusive. Claims other than for
money, debt or interest thereon, arising
from contract cannot be presented in the
testate or intestate proceedings (Festin,
Special Proceedings: A Foresight to the Bar
Exam, [2015] p. 49)

TIME WITHIN WHICH CLAIMS SHALL BE


FILED; EXCEPTIONS
STATUTE OF NON-CLAIMS
All claims for money against the decedent,
arising from the following:

1. Express or Implied Contract


2. Whether the same be due, not due or
contingent,
3. All claims for funeral expenses and
4. Expenses for the last sickness of the
decedent, and
5. Judgment for money against the
decedent, must be filed within a specified
period.
General Rule: The time limited in the
notice to creditors which must not be more
than 12 nor less than 6 months after the
date of the first publication of said notice,
otherwise they are barred forever.
Exception: They may be set forth as
counterclaims in any action that the
executor or administrator may bring against
the claimants.
RATIONALE IN FIXING THE PERIOD:
The purpose of the law, in fixing a period
within which claims against an estate must
be presented, is to insure a speedy
settlement of the affairs of the deceased
person and the early delivery of the
property to the person entitled to the same.
(Santos v. Manarang,G.R. No. L-8235 ,
March 19, 1914)
EFFECT IF CLAIM NOT FILED WITHIN
THE PERIOD
General rule: Claims not filed within the
prescribed period are barred.
Exceptions:
1. Belated claims.
A creditor must file his claim at anytime
BEFORE an order of distribution is
enteredsubject to the following conditions:

a. There must be an application


therefore;
b. Good cause must be shown why the
permission should be granted; and
c. The extension of time required to the
filing ofthe claim shall NOT
EXCEED one (1) monthfrom the
order allowing the filing of theclaim;

2. Defendant
dies
while
the action is
pending
in
the RTC.

Not for
the
primary
purpose
of
recovery
of
money,
debt or
interest.

Action shall
not
be
dismissed.De
cedent heirs
or other legal
representativ
es will merely
be
substituted
for
the
decedent
in
said
action
without
the
appointment
of
an
executor
or
administrator
. (Rule 3, Sec.
16)

3. Final
judgment
had already
been
rendered
against the
decedent
prior to his
death.

judgme
nt for a
sum of
money

A.Without
levy
on
execution
having been
effected
against
his
property,
such
judgment for
a
sum
of
money must
also be filed
as a claim
against
the
estate. (Rule
39, Sec. 7[c]).

2. Claims set forth as counterclaims in any


action that the executor or administrator
may bring against the claimants (Rule 86,
Sec. 5); or
3. Where an executor or administrator
commences an action, or prosecutes an
action already commenced by the deceased
in his lifetime, the debtor may set forth by
answer the claims he has against the
decedent, and mutual claims may be set off
against each other in such action. (Rule 86,
Sec. 5)

EFFECTS OF DEATH OF DEFENDANT


TIME
DEATH

OF

ACTION

1. Defendant
dies before
final
judgment in
the RTC.

Recover
y
of
money,
debt or
interest.

EFFECT OF
DEATH
Action shall
not
be
dismissed but
shall
continue
until entry of
judgment.
(Rule 3, Sec.
21)

4. Final

Recover

B.If levy on
execution had
already been
made before
his death, the
execution
shall proceed.
(Rule 39, Sec.
7[c]).
Claimant

judgmenttre
ndered
against the
decedent in
his lifetime.

5. Where the
defendant
dies
while
the
action
against him
is pending in
the Court of
Appeals.

y of real
or
personal
property
other
than
money,
or the
enforce
ment of
a lien
thereon.

must obtain a
writ
of
execution for
enforcement
against
the
executor,
administrator
or successorin-interest of
the deceased.
(Rule 39, Sec.
7[b])

sum of
money

Deceased
shall
be
substituted
therein by his
legal
representativ
e
but
the
final
judgment of
the appellate
court cannot
be
enforced
by a writ of
execution but
should
be
filed in the
probate court
as a money
claim
in
accordance
with Rule 86,
Sec.
5.
(Paredes, et.
al. vs. Moya,
et. al., G.R.
No. L-38051,
December 26,
1973)

Claims extinguished by death: personal to


either of the parties and is extinguished by
death.

Examples: legal separation, annulment of


marriage, declaration of nullity of marriage
Actions which do not survive: claim is not
extinguished by death but shall be
prosecuted as a money claim against the
estate of the deceased.
Example: Contractual money claim

WHERE A CLAIM ARISES FROM A


CONTRACT:
General Rule: Claims arising from
contract prescribes in TEN(10) YEARS.

Exception:The claim should be presented


withinthe period prescribed in said section;
otherwise it is barred even if the
prescriptive period of ten years has not yet
expired.
In effect, it supersedes the prescriptive
period often years (Rio y Compania v.
Maslog, 105 Phil.452, 1959).
In case the mortgagor dies, there are 3
options available to the mortgagee-creditor:
1. To waive the security mortgage
and claim the entire debt from the
estate as an ordinary claim. By filing
money claim against the estate he is
deemed to have abandoned the
mortgage and thereafter he cannot
file a foreclosure suit if he fails to
recover his money claim against the
estate;
2. To
foreclose
the
mortgage
judicially and prove any deficiency
as
an
ordinary
claim.
The
foreclosure suit should be against
the executor or administrator as
party defendant. In the event that a
creditor fails to fully recover his

claim, he may obtain deficiency


judgment and file it as a claim
against the estate in the manner
provided by this rule;
3. To rely solely upon the mortgage
and foreclose the same at any time
before it is barred by prescription
without right to claim for any
deficiency. This mode includes
extrajudicial foreclosure of sale and
its exercise precludes one from
recovery
any
balance
of
indebtedness against the estate and
frees the estate from further liability.
(Festin, Special Proceedings: A
Foresight to the Bar Exam, [2015] p.
51)

CLAIM OF EXECUTOR
ORADMINISTRATOR AGAINST THE
ESTATE

EXECUTOR OR ADMINISTRATOR HAS A


CLAIM AGAINST THE ESTATE:
If the executor or administrator has a claim
against the estate he represents:
1. He shall give notice thereof, in writing, to
the court, and;
2.The court shall appoint a special
administrator in the adjustment of such
claim.
Special Administrator
Have the same power and be subject to the
same liability as the general administrator
or executor in the settlement of other
claims.

3.The court may order


administrator to pay
administrator necessary
such claim. (Rule 86, Sec.

the executor or
to the special
funds to defend
8).

ATTORNEY OF THE
ADMINISTRATOR

EXECUTOR

OR

General Rule: It is the executor or


administrator who is primarily liable for
attorneys fees due to the lawyer who
rendered legal services for the executor or
administrator in relation to the settlement
of the estate.
Exception: The executor or administrator
may seek reimbursement from the estate
for the sums paid in attorneys fees if it can
be shown that the services of the lawyer
redounded to the benefit of the estate.
However, if the executor or administrator
refuses to pay the attorneys fees, the
lawyer has two modes of recourse.
First, the lawyer may file an action against
the executor or administrator, but in his
personal capacity and not as administrator
or executor.
Second, the lawyer may file a petition in
the intestate or testate proceedings, asking
the court to direct the payment of attorneys
fees as an expense of administration.
(Salonga Hernandez vs. Pascua, G.R. No.
127165, May 2, 2006)

BAR QUESTION (2002)


Q: X filed a claim in the intestate
proceedings of D. Ds administrator
denied liability and filed a counterclaim
against X. Xs claim was disallowed.
1. Does the probate court still have
jurisdiction to allow the claim of

Ds administrator by way of
offset? Why?
2. Suppose Ds administrator did not
allege any claim against X by way
of offset, can Ds administrator
prosecute the claim in an
independent proceeding? Why?
A:
1. No, because since the claim of X was
disallowed, there is no amount against
which to offset the claim of Ds
administrator.
2. Yes, Ds administrator can prosecute the
claim in an independent proceeding since
the claim of X was disallowed. Id X had a
valid claim and Ds administrator did not
allege any claim against X by way of offset,
his failure to do so would bar his claim
forever.
RULE 87
ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
RULE 87

RULE 86

Actions that may


be commenced
directly against
the executor and
administrator
1.Recovery of real
or personal
property or any
interest therein,
from the estate;

Actions that may


be commenced
against the estate
of the deceased

2.Enforcement of
a lien thereon;
3.Action to recover
damages arising
from tort

1.Money claims,
debts incurred by
the deceased
during his lifetime
arising from a
contract;
2.Claims for
funeral expenses
or for the last
illness of the
deceased;
3.Judgment for
money against the

decedent

ACTIONS THAT MAY BE INSTITUTED


AGAINST THE EXECUTOR OR
ADMINISTRATOR
The only actions that may be instituted
against the executor or administrator
independently of the testate or intestate
proceedings are: (REDB)
1. Recovery of real or personal property or
any interest therein from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages for an injury
to person or property, real or personal; and;
4. Action to recover damages for breach of
contract entered into by the decedent, but
committed by the administrator, which is
personal to him (Gutierrez v. Barreto-Datu,
5SCRA 757, 1962).
HEIRS CAPACITY TO SUE FOR THE
RECOVERY OF PROPERTY OF THE
ESTATE
General Rule: As a rule, heirs have no
standing in court to sue for the recovery of
the estate property during the pendency of
probate proceedings.
Exceptions: However, in the following
examples, the heirs may sue:
1. If the executor/administrator is
unwilling or refuses to bring suit.
2. When the executor/administrator is
alleged to have participated in the

act complained of and he is made a


party-defendant.
3. When there is no appointed
administrator. (Rioferio, et al. v. CA,
G.R. No. 129008, January 13, 2004)
In order for an heir to assert his right on
the estate of the deceased, judicial
declaration of heirship is not necessary, as
provided under Art. 777 of the civil code,
the rights to the succession are transmitted
from the moment of the death of the
decedent. (Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p. 82)
EMBEZZLEMENT
BEFORE
LETTERS
ISSUED; DOUBLE VALUE RULE
If a person, before the granting of letters of
testamentary or of administration on the
estate of the deceased, embezzles or
alienates any of the money, goods, chattels,
or effects of such deceased, such person
shall be liable to an action in favor of the
executor or administrator of the estate for
double the value of the property sold,
embezzled, or alienated, to be recovered for
the benefit of such estate. (Rule 87, Sec. 8)
REQUISITES BEFORE CREDITOR MAY
BRING AN ACTION FOR RECOVERY OF
PROPERTY FRAUDULENTLY CONVEYED
BY THE DECEASED
(DFAN-LBN)
1) There is DEFICIENCY of assets in
the hands of an executor or
administrator for the payment of
debts
and
expenses
of
administration;
2) The deceased in his lifetime had
made or attempted to make a
FRAUDULENT CONVEYANCE of his
property or had so conveyed such
property that by law the conveyance
would be void as against his
creditors;

3) The subject of the attempted


conveyance would be liable to
ATTACHMENT in his lifetime;
4) The executor or administrator has
shown NO DESIRE TO FILE the
action or failed to institute the same
within a reasonable time;
5) LEAVE is granted by the court to
the creditor to file the action;
6) A BOND is filed by the creditor;
7) The action by the creditor is in the
NAME
of
the
executor
or
administrator.
Note: The creditor shall have a lien on the
judgment recovered for costs and expenses.
The last 3 requisites are unnecessary where
the grantee is the executor or administrator
himself, in which event, the action should be
in the name of all creditors. (Herrera, Vol. IIIA, p. 175, 2005 ed.)
RULE 88
PAYMENT OF DEBTS

WHEN TO PAY
After hearing all the money claims against
the estate and after ascertaining the
amount of such claims, and it appears that
there are sufficient assets to pay the debts,
the executor or administrator shall pay the
same within the time limited for that
purpose (Rule 88, Sec. 1)
Testator in his will may designate the part
of the estate from which the debts shall be
paid or make a provision for the payment of
debts, but if the provision made by the will
or the estate appropriated is not sufficient,
such part of the estate, real or personal, as
is not disposed of by will shall be
appropriated for that purpose. (Rule 88,

Sec. 2)
ORDER IN WHICH ESTATE PROPERTY IS
CHARGED FOR THE PAYMENT OF
DEBTS ANDEXPENSES
1. Personal estate of the deceased not
disposedof by will;
2. Whole of the real estate not disposed of
by will, if said personal estate is not
sufficient for that purpose, or its sale would
redound
to
the
detriment
of
the
participants of the estate.
REAL ESTATE MAY BE:
A.Sold,
B. Mortgaged or;
C.Otherwise encumbered for that purpose
by the executor or administrator, after
obtaining the authority of the court
therefor.
3. Any deficiency shall be met by
contributions
in
accordance
withthe
provisions of section 6 of this rule. (Rule
88, Sec. 3)
HEIRS LIABILITIES
General Rule: Heirs are not required to
respond with their own property for the
debts of their deceased ancestors.
Exceptions: Even after the partition of the
estate, the heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively receives
from the estate.
The hereditary property consists only of
that part which remains after the
settlement of all lawful claims against the
estate, for the settlement of which the entire
estate is first liable.

The heirs cannot, by any act of their own or


by agreement among themselves, reduce
the creditors security for the payment of
their claims. (Pavis vs. De la Raja, 8 Phil.
70)
WRIT OF EXECUTION
General rule: Probate court cannot issue a
writ of execution. The proper procedure is
for the court to order the sale of personal
estate or the sale or mortgage of real
property of deceased and all debts and
expenses of the administration should be
paid out of the proceeds of such sale
ormortgage. (Aldamiz v. Judge of CFI
Mindoro, 85 Phil. 228)
Exceptions:
Under
the
following
circumstances, the probate court may issue
writs of execution: (D-E-C)
1. To satisfy the distributive shares of
devisees, legatees and heirs in
possession of the decedent's assets.
2. To enforce payment of the expenses
of partition.
3. To satisfy the costs when a person is
cited for examination in probate
proceedings.

The following must be present before a


contingent claim may be allowed by the
court:
1. Duly filed within the 2 year period
allowed for the creditors to present
claims;
2. The claim is valid; and
3. The claim became absolute.
88, Sec. 5)

HOW CONTINGENT CLAIMS BECOMES


ABSOLUTE IN 2 YEARS
Date of Filing
Absolute contingent
claim is presented
to the probate court
within 2 years from
the time limited for
other creditors to
present
their
claims.

COURT TO FIX CONTRIBUTIVE SHARES


WHEN LEGATEES,
DEVISEES AND HEIRS HAVE BEEN
IN POSSESSION
They become liable to contribute for the
payment of such debts and expenses. The
probate court may after hearing issue an
order settling the amounts of their liabilities
and order how much and in what manner
each person shall contribute, and may
issue a writ of execution to satisfy the
contributive shares. (Rule 88, Sec. 6)
REQUISITES OF CONTINGENT CLAIM:

(Rule

Claim
is
not
presented,
after
having
become
absolute,
within
said 2 years.

Effect/s
1. If it is NOT
DISPUTED by the
executor
or
administrator
it
may be allowed by
the court.
2. If DISPUTED, it
may be proved and
allowed
or
disallowed by the
court as the facts
may warrant.
If Contingent claim
is allowed ,creditor
shall receive
payment to the
same extent as the
other creditors if
the estate retained
by the executor or
administrator is
sufficient. (Rule 88,
Sec. 5)
If
contingent
claim is allowed:
The
assets
retained
in
the
hands
of
the

executor
or
administrator,not
exhausted in the
payment of claims
shall be distributed
by the order of the
court
to
the
persons entitled to
the same. (Sec. 4,
Rule 88)
Assets
so
distributed
may
still be applied to
the payment of the
claim
when
established,
and
the creditor may
maintain an action
against
the
distributees
to
recover the debt,
and
such
distributees
and
their estates shall
be liable for
the
debt in proportion
to the estate they
have
respectively
received from the
property
of
the
deceased.

Note: If heirs have taken possession of


portions of the estate before the debts have
been settled, they shall become liable to
contribute for the payment of debts and
expenses, and the court may, after hearing,
settle the amount of their several liabilities,
and order how much and in what manner
each person shall contribute (Rule 88, Sec.
6).
ORDER OF PAYMENT IF
ESTATE IS INSOLVENT

If the assets which can be appropriated for


the payment of the debts are not sufficient
for that purpose, the executor or
administrator shall pay the debts against
the estate in accordance withthe provisions
of Article 1059 and Articles 2239 to2251 of
the Civil Code on preference of credits.(Rule
88, Sec. 7)
Claims proven outside the Philippines
where the executor had knowledge and
opportunity to contest its allowance may be
added to the list of claims proved against
the decedent in the Philippines and the
estate will be distributed equally among
those creditors (Rule 88, Sec. 10)

PERIOD WITHIN WHICH TO PAY DEBTS


AND LEGACIES FIXED
General rule: Shall not exceed one (1) year
in the first instance.
Exceptions: The court may, on the
application of the executor or administrator
and after hearing on such notice of the time
and place therefor given to all persons
interested as it shall direct, extend the time
on the following conditions:
a. The extension shall not exceed 6 months
for a single extension; and
b. The whole period allowed to the original
executor or administrator shall not exceed 2
years. (Rule 88, Sec. 15)
Rule 89
SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT
Section 1: ORDER OF SALE OF
PERSONALTY

Upon the application of the executor or


administrator, and on written notice to the
heirs and other persons interested, the
court may order the whole or a part of the
personal estate to be sold if it appears
necessary for the purpose of: (DE-L-P)
a. Paying the debts and expenses of
administration;
b. Paying the legacies; or
c. Covering expenses for the preservation
of the property (Rule 89, Sec. 1)
Section 2: WHEN THE COURT MAY
AUTHORIZE SALE, MORTGAGE, OR
OTHER ENCUMBRANCE OF REALTY TO
PAY DEBTS AND LEGACIES
The court may authorize such sale through
personalty:
a. If the personal estate of the
deceased is not sufficient to pay the
debts, expenses of administration,
and legacies (Rule 89, Sec. 2);
b. If the sale of such personal estate
may injure the business or other
interests of those interested in the
estate (Rule 89, Sec. 2); and
c. If the testator has not otherwise
made sufficient provision for the
payment of such debts, expenses,
and legacies (Rule 89, Sec. 2); or
d. If the deceased was in his lifetime
under contract, binding in law, to
deed real property, or an interest
therein to beneficiary (Rule 89, Sec.
8); or
e. If the deceased in his lifetime held
real property in trust for another
person (Rule 89, Sec. 9)
Requisites:

a.
b.

c.

Application
of
executor
or
administration;
Written notice to heirs, devisees
and legatees residing in the
Philippines; This is mandatory.
Hearing

Section 3: PERSONS INTERESTED MAY


PREVENT SUCH SALE ETC. BY GIVING
BOND.
No authority to sell, mortgage, or encumber
real or personal estate shall be granted if
any person interested in the estate gives a
bond.
PURPOSE OF THE BOND
The bond may be prosecuted for the
benefit of either:
1. Security of the creditors.
2. Security of the executor or administrator.
Section 4. Sale of Estate as beneficial to
interested persons.
General rule: The court may authorize the
executor or administrator to sell the whole
or a part of estate if the following requistes
are present.
Requisites:
1. Sale of the estate, real or personal, will
be beneficial to the heirs, devisees, legatees
and other interested persons.
2.
Application
administrator.

of

the

executor

or

3. Written notice to the heirs, devisees and


legatees who are interested to the estate to
be sold.
Exception: The authority to sell shall not
be granted if inconsistent with the
provisions of a will.

Q: Is notice, pursuant to Rule 89, Sec. 4


a mandatory requirement to effect the
authority of the sale or encumbrance of
real property?

If the estate is to be sold at auction, the


provisions on execution sale shall governed.
5. Executor or administrator shall be
furnished with a certified copy of such
order.

A: Yes. Failure to give notice to the heirs,


devisees, and legatees would invalidate the
authority granted by the court (Festin,
Special Proceedings: A Foresight to the Bar
Exam, [2011] p. 88)

6. Certified copy of the order of the court


and the deed of the executor or
administrator for such real estate shall be
recorded in the Registry of Deeds.

Without compliance with Sections 2, 4, and


7 of Rule 89 of the Rules of Court, the
authority to sell, the sale itself, and the
order approving it would be null and void
ab initio (Pahamotang vs. PNB, G.R. No.
156403, March 31, 2005).

Rule 90
DISTRIBUTION AND PARTITION OF THE
ESTATE

Section
7:
REGULATIONS
FOR
GRANTING
AUTHORITY
TO
SELL,
MORTGAGE,
OR
OTHERWISE
ENCUMBER ESTATE.
PROCEDURES:
1. Executor or Administrator shall file a
written petition.
The petition must show that the sale,
mortage or other encumbrance is necessary
or beneficial.
2. The court shall fix a time and place for
hearing such petition.
3. Give notice to the persons interested by
mail or publication.
4. The court shall issue an order
authorizing the executor or administrator to
sell such part of the estate.
The estate may be sold at private or public
auction.

LIQUIDATION the determination of all the


assets of the estate and payment of all
debts and expenses.
PROJECT OF PARTITION a document
prepared by the executor or administrator
setting forth the manner in which the
estate of the deceased is to be distributed
among the heirs. If the estate is a testate
estate, the project of partition must
conform to the terms of the will; if intestate,
the project of partition must be in
accordance with the provisions of the Civil
Code (Camia de Reyes v. Reyes de Ilano, 63
Phil. 629)
Q: When must the order for distribution
of residue be made?
A:
GR: When the debts, funeral
charges,
and
expenses
of
administration, the allowance to the
widow, and inheritance tax, if any,
chargeable
to
the
estate
in
accordance with law, have been
paid, the court shall assign the
residue of the estate to the persons
entitled to the same, naming them

and the proportions, or parts, to


which each is entitled.

appeal may be the subject of advance


distribution (Rule 109, Sec. 2 par. 1); and

EXCEPTION: When distributees or


any of them give a bond in a sum to
be fixed by the court, conditioned for
the payment of obligations within
such time as the court directs
(Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p.
90)

(2) The distributees must post a bond, fixed


by the court, conditioned for the payment of
outstanding obligations of the estate (Rule
109, Sec. 2 par. 2) (Quasha-Pena vs. LCN
Construction, G.R. No. 174873, August 26,
2008)

BAR QUESTION (2002)


Q:A, B and C, the only heirs in Ds intestate
proceedings, submitted a project of
partition to the partition, two lots were
assigned to C, who immediately entered
into the possession of the lots. Thereafter, C
died and proceedings for the settlement of
his estate were filed in the RTC-Quezon
City. Ds administrator then filed a motion
in the probate court (RTC Manila), praying
that one of the lots assigned to C in the
project of partition be turned over to him to
satisfy debts corresponding to Cs portion.
The
motion
was
opposed
by
the
administrator of Cs estate. How should the
RTC-Manila resolve the motion of Ds
administrator?
A: The motion of Ds administrator should
be granted. The assignment of the two lots
to C was premature because the debts of
the estate had not been fully paid.

ADVANCE/PARTIAL DISTRIBUTION
Although it is within the discretion of the
RTC whether or not to permit advance
distribution of the estate, its exercise of
such discretion should be qualified by the
following:
(1) Only part of the estate that is not
affected by any pending controversy or

Q: May the court hear and determine


questions as to advancement made by
the decedent?
A: Yes. Questions as to advancement made
or alleged to have been made by the
deceased to any heir may be heard and
determined by the court having jurisdiction
of the estate proceedings.
Note: The final order of the court thereon
shall be binding on the person raising the
questions and on the heir (Festin, Special
Proceedings: A Foresight to the Bar Exam,
[2011] p. 92)

Q: By whom are the expenses of


partition paid?
A:
1. By
the
EXECUTOR
or
ADMINISTRATOR, if at the time
of the distribution he has
retained sufficient effects in his
hands for as long as it appears
equitable to the court and not
inconsistent with the intention
of the testator; otherwise;
2. By the PARTIES in proportion to
their
respective
shares
or
interest in the premises (Festin,
Special Proceedings: A Foresight
to the Bar Exam, [2011] p. 93-94)
RECOGNITION OF HEIRSHIP

A person claiming to be an
acknowledged natural child of a deceased
need not maintain a separate action for
recognition but may simply intervene in the
intestate proceedings, by alleging and
proving therein his or her status as such,
and claiming accordingly the right to share
in the inheritance. (Lopez vs. Lopez, G.R.
No. 45736, May 26, 1939)

Q: What is the effect of a final decree of


distribution?
A:
GR: Its binding effect is like any
other judgment in rem.
EXCEPTION: If properly set aside for
lack of jurisdiction or fraud.
Note: A final decree of distribution of the
estate vests the title to the land of the
estate in the distributees. If the decree is
erroneous, it should be corrected by
opportune appeal. Once final, the validity
or invalidity of the project of partition
becomes irrelevant (Vda. De Kilayco vs.
Tengco, G.R. No. 45425, March 27, 1992).

Q: When does a probate court lose


jurisdiction
of
an
estate
under
administration?
A: Only after the payment of all debts and
the remaining estate delivered to the heirs
entitled to receive the same. The finality of
the approval of the project of partition by
itself alone does not terminate the probate
proceeding (Guilas vs. Judge of CFI
Pampanga, G.R. No. L-26695, January 31,
1972).
REMEDIES OF AN HEIR WHO HAS NOT
RECEIVED HIS SHARE:
1. File a motion with the probate court
for delivery to him of his share,

2. File a motion for reopening of the


proceeding within the prescriptive
period, if the estate proceedings had
been closed (Festin, Special
Proceedings: A Foresight to the Bar
Exam, [2011] p. 93)
Where the order closing the intestate
proceeding was already final and executory,
the same cannot be reopened on a motion
therefore filed after the lapse of the
reglementary period (Divinagracia vs.
Rovira, G.R. No. L-42615, August 10,
1976).

Rule 91
ESCHEAT
Concept of ESCHEAT:
1. It is the falling of a decedents estate
into the general property of the
State on his death intestate without
lawful
heirs,
and
is
applied
indifferently to all his rights to
property of whatever nature.
2. It is a proceeding whereby the real
and personal property of a deceased
person become the property of the
State upon his death without
leaving a will or legal heirs (Festin,
Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 101)
THREE INSTANCES OF ESCHEAT:
1. A person died intestate;
2. Reversion proceedings (the sale of
property was made in violation of
the Constitution); and
3. Dormant accounts for 10 years
(Unclaimed Balances Law)
REQUISITES FOR FILING A PETITION:
1. A person died intestate;
2. He left no heirs or persons entitled
by law to the same; and

3. He left properties in the Philippines.


Q: Who is the real party in interest in all
actions for the reversion to the
government of lands of the public
domain?
A: The Republic of the Philippines. The
action shall be instituted by the Solicitor
General or the officer acting in his stead, in
behalf of the Republic of the Philippines
(Luis B. Manese, et al. vs. Spouses Velasco,
G.R. No. 164024, January 29, 2009).
Even if the decedent died testate but his
will was not allowed to probate, it is as if he
died intestate. In such a case, if he has no
known heirs and there are no persons
entitled to his property, the same can still
be escheated (Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p. 102)
A petition to declare as escheated a parcel
of land owned by a resident of the
Philippines who died intestate and without
heirs or persons entitled to the property is
filed in the place where the deceased
person last resided (Suggested Answer, Bar
1997).

BAR QUESTION (2002)


Q: Suppose the property of D was declared
escheated on July 1, 1990 in escheat
proceedings brought by the Solicitor
General. Now, X, who claims to be an heir
of D, filed an action to recover the
escheated property. Is the action viable?
Why?
A: No, the action is not viable. The
action to recover escheated property
must be filed within five years from July
1, 1990 or be forever barred.

WHEN AND BY WHOM CLAIM TO ESTATE


FILED
If a devisee, legatee, heir, widow, widower or
other person entitled to such estate appears
and files a claim thereto with the court
within five (5) years from the date of such
judgment,
such
person
shall
have
possession of and title to the same, or if
sold, the municipality or city shall be
accountable to him for the proceeds, after
deducting reasonable charges for the care
of the estate; but a claim not made within
said time shall be forever barred. (Rule 91,
Sec. 4)

A PERSON HAS A 5-YEAR TIME


LIMITATION TO CLAIM PROPERTY
ALREADY ESCHEATED TO THE
GOVERNMENT
(counted from the date of judgment)

Q: Can the trial court convert an escheat


proceeding into an ordinary special
proceeding?

Rationale: The 5-year period is not a device


capriciously conjured by the state to
defraud any claimant; on the contrary, it is
decidedly prescribed to encourage would-be
claimants to be punctilious in asserting
their claims (Republic vs. CA, G.R. No.
143483, January 31, 2002).

A: No. the two actions are entirely different


from each other and the requirements in
vesting jurisdiction are likewise different. In
special proceedings, publication is once a
week for 3 consecutive weeks while in
escheat, it is once a week for 6 consecutive
weeks (Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p. 103)
REMEDY OF RESPONDENT:

When a petition for escheat does not state


facts which entitle the petitioner to the
remedy prayed for, and even admitting them
hypothetically, it is clear that there is no
ground for the court to proceed to the
inquisition provided by law, an interested
party should not be disallowed from filing a
motion to dismiss the petition which is
untenable from all standpoints. And when
the motion to dismiss is entertained upon
this ground, the petition may be dismissed
unconditionally and the petitioner is not
entitled to be afforded an opportunity to
amend his petition (Herrera, p.227; Go Poco
Grocery v. Pacific Biscuit Co., 65 Phil. 443).

The right to escheat may be waived


expressly or impliedly.

NOTE: In such a case, the motion to


dismiss plays the role of a demurrer and
the court should resolve the legal questions
raised therein (Municipal Council of San
Pedro, Laugna v. Colegio de San Jose, 65
Phil. 318).
HEARING AND JUDGMENT; REQUISITES:
(Sec. 3)
1. Publication of the order;
2. Person died intestate;
3. He is seized of real/personal property
in the Philippines;
4. He left no heir or person entitled to
such property; and
5. There is no sufficient cause to
contrary.
TO WHOM WILL THE PROPERTY
ESCHEATED BE
ASSIGNED:
1. If personal property, to the
municipality or
city where
decedent last resided;
2.
If
real
property,
to
the
municipality or city
where the
property is situated;
3. If deceased never resided in the
Philippines, to the municipality or
city where the
property may be
found.

PROCEDURE FOR FILING A PETITION


FOR ESCHEAT

Proceedings: A Foresight to the Bar Exam,


[2011] p. 108)
GUARDIAN - a person in whom the law has
entrusted the custody and control of the
person or estate or both of an infant,
insane, or other person incapable of
managing his own affairs (Festin, Special
Proceedings: A Foresight to the Bar Exam,
[2011] p. 109)
LEGAL GUARDIAN a person who, without
the need of judicial appointment, is
designated as such by provision of law as in
the case of the parents over the persons of
their minor children.
GUARDIAN AD LITEM any competent
person appointed by the court to prosecute
or defend a minor, insane, or person
declared to be incompetent, in an action in
court (Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p. 109)
Q: Which court has jurisdiction over
guardianship proceedings?
A:

Rule 92
GUARDIANSHIP

1. Guardianship proceedings involving


incompetents who are not minors
REGIONAL TRIAL COURT where he
resides
2. Guardianship of minors FAMILY
COURT where the minor resides
(Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p.
110)

GENERAL GUARDIAN AND


GUARDIANSHIP VENUE
GUARDIANSHIP - a trust relation of the
most sacred character, in which one person,
called a guardian acts for another called a
ward whom the law regards as incapable
of managing his own affairs (Festin, Special

Venue:
1. PLACE OF RESIDENCE of the minor
or incompetent; or
2. RTC of the place where the property
of such minor or incompetent may
be situated, if non-resident.

p. 113).
TRANSFER OF VENUE:
The court taking cognizance of the
CONTENTS OF THE PETITION
guardianship proceeding may transfer the
same to the court of another province or
FOR GUARDIANSHIP
municipality wherein the ward has acquired FOR GUARDIANSHIP
OVER AN
real property, if he has transferred thereto
OVER A MINOR
INCOMPETENT WHO IS
his bona fide residence (Sec. 3, Rule 92)
(SC AM NO. 03-02-05)
NOT A MINOR
(Rules of Court)
Jurisdictional facts;
1. Jurisdictional facts;
Name, age, residence 2. Incompetency of the
Rule 93
of the prospective
person rendering the
APPOINTMENT OF GUARDIANS
appointment
Guardianship of incompetents who are not ward;
Ground
rendering
the
necessary/
minors shall continue to be under the
appointment
convenient;
jurisdiction of the regular courts and
governed by the Rules of Court (Festin, necessary/convenien 3. Probable value
or character of
Special Proceedings: A Foresight to the Bar t;
Death of the parents
his estate;
Exam, [2011] p. 107)
of the minor or the
4. Names, ages, and
termination,
residences of the
PERSONS WHO MAY PETITION FOR
deprivation, or
relatives of the
APPOINTMENT OF GUARDIAN
suspension
of
their
incompetent as well
with respect to a
with respect to
parental
authority;
as the persons
MINOR
INCOMPETENT
Remarriage of the
having him under
(SC AM No. 03-02OTHER THAN A
minors
surviving
their care;
05)
MINOR
parent;
5.
Name of the person
(Rules of Court)
Names, ages, and
for whom letters of
1. Any relative; or
1. Any relative; or
residences of relative
guardianship are
2. Other person in
2. Friend; or
within the 4th civil
prayed.
behalf of the
3. Other person in
degree of the minor
minor; or
behalf of the
and of persons
3. The minor
resident
having him in their
himself if 14
incompetent who
custody;
years of age or
has no parents or
Probable value,
over; or
lawful guardian; or
character, and
4. The Secretary of 4. The Director of
location of the
Social Welfare
Health in favor of
property of the
and the
an insane person
minor;
Secretary of
who should be
Name, age, and
Health in case of
hospitalized or in
residence of the
an insane minor
favor of an isolated
person for whom
who needs to be
leper; or
letters of
hospitalized
5. Any one interested
guardianship are
(Sec. 2, SC AM
in the estate of a
prayed.
03-02-05).
non-resident
incompetent
FACTORS CONSIDERED IN APPOINTING
(Festin, Special
A GUARDIAN:
Proceedings, 2011,

1.
2.
3.
4.
5.
6.
7.

Financial condition;
Physical condition
Sound judgment;
Prudence and trustworthiness;
Moral character and conduct;
The present and past history;
Probability of being able to exercise
the powers and duties of a guardian
(Francisco vs. CA, G.R. No. L-57438,
January 3, 1984).

Q: Is notice to a minor who is above 14


years of age jurisdictional?
A: Yes. Non-compliance with the required
notice as provided under Sec. 3 of Rule 93
renders the guardianship proceedings null
and void (Nery, et al. vs. Lorenzo, G.R. Nos.
L-23096 and L-23376, April 27, 1972).
OPPOSITION TO PETITION
(Rule 93, Sec. 4)
The opposition must be in writing and need
not to be verified.
Grounds:
a. Competency of alleged incompetent; or
b. Unsuitability of the person for whom
letters are prayed.
Rule 94
Bonds of Guardians
Section 1. Bond to be given before the
issuance of letters.
Before a guardian appointed enters upon
the execution of his trust, or letters of
guardianship issue, he shall give a bond, in
such sum as the court directs, conditioned
as follows:
(a) To make and return to the court, within
three months, a true and complete
inventory of all the estate of his ward.

(b) To faithfully execute the duties of his


trust.
(c) To render a true and just account of all
the estate of the ward in his hands.
(d) To settle his accounts with the court
and deliver and pay over all the estate and
moneys to the person lawfully entitled
thereto; (duties upon the expiration of his
trust)
(e) To perform all orders of the court by him
to be performed.
DUTIES OF A GUARDIAN
The following are the duties of a guardian:
1. Manage and dispose of the estate
according to the best interests of the ward;
2. Provide the proper care,custody and
education of the ward;
Section 2. When new bond may be
required and old sureties discharged.
The court may require a new bond to be
given by the guardian and may discharge
the sureties on the old bond from further
liability.
Provided the following conditions are
present:
1. Notice to interested persons.
2. No injury can result therefrom to those
interested in the estate.
Section 3. Bonds to be filed.
Bond given by a guardian shall be filed in
the office of the clerk of the court.
Rule 95
SELLING AND ENCUMBERING
PROPERTY OF WARD

Grounds when a guardian may sell or


encumber the estate:
1. The income of an estate under
guardianship is insufficient to
maintain the ward and his family;
2. To maintain and educate the ward
when a minor; or
3. It appears that it is for the benefit of
the ward proceeds put out an
interest, or invested in some
productive security, or in the
improvement or security of other
real estate of the ward (Festin,
Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 119)
The next of kin referred to does not mean
the next of kindred, but the relatives whose
relationships are such as to entitle them to
shares in the real estate as distributees
(Lopez vs. Teodoro, G.R. No. L-3071, May 29,
1950).

Q: What is the effect if no notice is given


to the next of kin of the ward?
A: The case will be dismissed. The notice to
the next of kin required by Section 2 is
jurisdictional (Singco, et al. vs. Longa, G.R.
No. L-27962, February 14, 1928).
DURATION OF THE ORDER OR SALE
AND ENCUMBRANCE
No order of sale shall continue in
force more than one (1) year after granting
the same, without a sale being had. (Rule
95, Sec. 4)
Rule 96
GENERAL POWERS AND DUTIES OF
GUARDIANS

Q: Cite certain general powers and duties


of a guardian.
A:
1. Have the care and custody of the
person of the ward, and the
management of his estate, of the
management of the estate only, as
the case may be (Sec. 1);
2. Pay the debts of the ward (Sec. 2);
3. Settle accounts, collect debts and
appear in actions the ward (Sec. 3);
4. Manage the estate of the ward
frugally, and apply the proceeds to
the maintenance of the ward (Sec.
4);
5. Render verified inventory within 3
months after his appointment and
annually thereafter upon application
of interested persons (Sec. 7);
6. Present his account to the court for
settlement and allowance (Sec. 8).

GUARDIAN PROHIBITED FROM MAKING


A DONATION
A guardian, just like a trustee, is
prohibited under Art. 736 of the Civil Code
from making a donation of the properties
entrusted to him. (Araneta vs. Perez, G.R.
No. L-18872, July 5, 1966).
Rule 97
TERMINATION OF GUARDIANSHIP

GROUNDS FOR TERMINATION OF


GUARDIANSHIP

OVER A MINOR
(SC AM No. 0302-05)
1. The ward has

OVER AN
INCOMPETENT
OTHER THAN A
MINOR
(Rules of Court)
1. Competency of

come of age;
2. Death of the
ward; or
3. Death of the
guardian.

the ward has


been judicially
determined;
2. Guardianship is
no longer
necessary;
3. Death of the
ward; or
4. Death of the
guardian.

SPECIAL DISQUALIFICATIONS:
1. Non-residence of the guardian.
2. Advance age of the guardian. (Francisco
vs. CA, G.R. No. 57438, January 31, 1984)
3. Judges, clerks of court and lawyers.(Rule
137, Sec. 1 and A.M. No. 08-4-1 SC)

RULE ON GUARDIANSHIP OF MINORS


AM No. 03-02-05-SC
(Effectivity date: May 1, 2003)

Q: What is the sole concern of the court


in guardianship?
A: It is solely concerned with the wards
custody and proper administration of his
properties. Conflicts regarding ownership or
title to property in the hands of a guardian
should be litigated in a separate proceeding
(Festin, Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 126)
GROUNDS FOR THE APPOINTMENT OF A
GUARDIAN
AS
PROVIDED
UNDER
SECTION 4:
1. Death,
continued
absence,
or
incapacity of his parents;
2. Suspension,
deprivation,
or
termination of parental authority;
3. Marriage of his surviving parent, if
the latter is found unsuitable to
exercise parental authority; or
4. When the best interests of the minor
so requires.

Q: What is the order of preference in


appointing a guardian, in default of
parents of a court-appointed guardian?
(Sec. 6)
A:
1. Surviving grandparent (in case
several grandparents survive, the
court shall select any of them);
2. The oldest brother or sister of the
minor over 21 years of age, unless
unfit or disqualified;
3. The actual custodian of the minor
over 21 years of age, unless unfit or
disqualified;
4. Any other person, who in the sound
discretion of the court, would serve
the best interests of the minor.
Q: Where to file the petition? (Sec. 3)
A: Family Court of the province or the city
where the minor actually resides. If he
resides in a foreign country, with the Family
Court of the province or city where his
property or any part thereof is situated.
Q: Who can file an opposition to the
petition? (Sec. 10)
A: Any interested person may contest the
petition by filing a written opposition.

CONDITIONS SET IN THE FILING OF A


BOND BY THE GUARDIAN (Sec. 14):
1. To make and return to the court,
within 3 months after the issuance
of his letters of guardianship, a true
and complete inventory of all the
property, real and personal, of his
ward which shall come to his
possession or knowledge or to the
possession or knowledge of any
other person in his behalf;

2. To faithfully execute the duties of


his trust, to manage and dispose of
the property according to this rule
for the best interests of the ward,
and to provide for his proper care,
custody and education;
3. To render a true and just account of
all property of the ward in his
hands, and of all proceeds or
interest derived therefrom, and of
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 of his trust, to settle his
accounts with the court and deliver
and pay over all the property,
effects, and monies remaining in his
hands, or due from him on such
settlement, to the person lawfully
entitled thereto; and
4. To perform all orders of the court
and such other duties as may be
required by law.

5. The court may allow him to resign


for justifiable causes.

PROCEDURE IN GUARDIANSHIP

Q: Under Section 16, when are the


parents of the minor required to post a
bond?
A: When the market value of the property
or the annual income of the child exceeds
P50,000.

GROUNDS
FOR
REMOVAL
OR
RESIGNATION OF GUARDIAN (Sec. 24):
1. Guardian
becomes
insane
or
otherwise incapable of discharging
his trust;
2. Found to be unsuitable;
3. He has wasted or mismanaged the
property of the ward;
4. He has failed to render an account
or make a return for 30 days after
its due;

RULE 98
TRUSTEES
This rule APPLIES ONLY to express trust,
one which is created by a will or a written
instrument.

CONCEPT OF TRUST
A trust is a confidence reposed in one
person, called the trustee, for the benefit of
another, called the cestui que trust, with
respect toproperty held by the former to the
latter. The person in whom the confidence
is reposed asregards property for the
benefit of another isknown as trustee.

JURISDICTION: In the RTC or MTC in


which the will was allowed, if it be a will
allowed in the Philippines, otherwise by the
RTC of the province in which the property
or some portion thereof, affected by the
trust is situated.

NATURE OF POSSESSION
GENERAL RULE: The possession of the
property by the trustee is not an adverse
possession, but only a possession in the
name and in behalf of the owner of the
same.
EXCEPTION: A trustee, however, may
acquire the trust estate by prescription
provided there is repudiation of the trust
and this fact is known to the cestui que
trust. The repudiation must be clear, open
and unequivocal. (Salinas vs Tuason, G.R.
No. L-33626 March 2, 1931).
TERRITORIALITY OF AUTHORITY OF
TRUSTEE
The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.
This is based on the principle that his
authority cannot extend beyond the
jurisdiction of the Republic, under whose
courts he was appointed. [Herrera supra ]

Q: When a new trustee is appointed


(testamentary trust)?

A: If a testator has omitted in his will to


appoint a trustee in the Philippines, and if
such appointment is necessary to carry
into effect the provisions of the will. (Rule
98, Sec. 2)

Q: What is the extent of powers of the


new trustee appointed?

A: The trustee to be appointed shall have


the same rights, powers, and duties, and in
whom the estate shall vest, as if he had
been appointed by the testator. (Rule 98,
Sec. 2)

Q: When a new trustee is appointed


(contractual trust):
A: When a trustee under a written
instrument declines, resigns, dies or
removed before the objects of the trust are
accomplished, and no adequate provision is
made in such instrument for supplying the
vacancy (Rule 98, Sec. 3).
Q: What is the extent of his powers?
A: Such new trustee shall have and exercise
the same powers, right, and duties as if he
had been originally appointed. (Rule 98,
Sec. 3).

Q: Is the trustee required to file a bond?

A:

GENERAL RULE: A trustee shall file with


the clerk of the court having jurisdiction of
the trust a bond in the amount fixed by the
judge of said court, payable to the
Government of the Philippines and
sufficient and available for the protection of
any party in interest.
EXCEPTIONS: The trustee may be
exempted by the court from giving a bond
when:
1. Directed or
testator; or

requested

by

the

2. When
all
persons
beneficially
interested in the trust, being of full
age, request the exemption.
However, such exemption may be cancelled
by the court at any time and the trustee
required to forthwith file a bond.

CONDITIONS INCLUDED IN BOND


The following conditions shall be deemed a
partof the bond whether written therein or
not: (IMAS)

1. INVENTORY. The trustee shall submit to


thecourt an inventory of the personal and
realestate belonging to him as trustee who
shallhave come to his possession or
knowledge.
2. MANAGEMENT AND DISPOSITION.
Thetrustee shall manage and dispose of
suchestate and faithfully discharge his
trust in relation thereto.
3. ACCOUNT. The trustee shall render

underoath at least once a year until his


trust isfulfilled an account of the property
in hishands and of the management
anddisposition thereof.
4. SETTLEMENT OF ACCOUNTS. The
trusteeshall settle his accounts and deliver
theremaining estate in his hands to
thoseentitled thereto (Rule 96, Sec. 6)
When the trustee is appointed as a
successor to a prior trustee, the court may
dispense with the making and return of an
inventory, if one has already been filed, and
in such case the condition of the bond shall
be deemed to be altered accordingly (Rule
98, Sec. 6)
REIMBURSEMENT
EXPENSES

OF

TRUSTEE

FOR

It is a rule that a trustee will be reimbursed


from the trust estate for all necessary and
reasonable expenses (Herrera, Special
Proceedings [2005], p. 458)
Requisites for the removal and
resignation of a trustee:
1. If removal appears essential in the
interestsof the petitioners:
a. Petition to the proper RTC of the
partiesbeneficially interested;
b. Due notice to the trustee; and
c. Hearing
2. Removal of a trustee who is insane or
otherwise incapable of discharging his
trustor evidently unsuitable therefore:
a. At the initiative of the court;
b. After due notice to all persons
interested
3. Resignation
a. Whether appointed by the court
orunder a written instrument;
b. If it appears to the court proper
to allowsuch resignation.
Q: Who may file the petition for removal

of a trustee?
A: Parties beneficially interested (Rule 98,
Sec. 8).
Resignation of Trustee: A trustee is at
liberty to tender his resignation and apply
for his release on the sole ground of
unwillingness to act further in the trust.
But the acceptance of the resignation of a
trustee is not a matter of course; due regard
must be had for the interest of the parties
to be affected and there must ordinarily be
some ground for discharge other than the
mere wish of the trustee to be relieved
(Herrera, Special Proceedings, [2005], p.
459)

Q: What are the grounds for removal and


resignation of a trustee?
A:

1. When the termination appears


essential to the interest of the
persons beneficially interested in the
trust;
2. Insanity;
3. Incapability of discharging the trust
or evidently unsuitable therefore;
4. Resignation;
5. Death of the trustee.
Q: Can the trustee acquire properties
under his supervision?

A: No. The trustee is prohibited from


acquiring
the
property
whether
by
purchase, even in a public or judicial
action, either in person or through the
mediation of another (NCC Art. 1491).

ADOPTION

The provisions of the Rules of Court on


Adoption (Rule 99-100) have been amended
by the following laws:
1. Domestic Adoption Act of 1998 or R.A
8552.
2. Inter-Country Adoption Act of 1995 or
R.A 8043.
3. Proposed Rules on Commitment of
Children (A.M 02-1-19 SC).
4. Rule on Custody of Minors and Writ of
Habeas Corpus in relation to Custody of
Minors (A.M 03-04-04 SC).
RULE 99
ADOPTION AND CUSTODY OF MINORS
Rule 99 has been amended by R.A 8552
AND R.A 8043.
RULE 100
RESCISSION AND REVOCATION OF
ADOPTION
Rule 100 has been amended by Domestic
Adoption Act of 1998.
PRESENT RULE : The adopter can no
longer rescind the adoption( tDomestic
Adoption Act of 1998).
He can merely disinherit the adoptee in
accordance with the provisions of the Civil
Code.(Civil Code Art.919)
ADOPTION is a juridical act, a proceeding
in rem, which creates between two persons
a relationship similar to that which results
from legitimate paternity and filiation.
(Festin, Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 137)
To establish the relation, the statutory
requirements must be strictly carried out;
otherwise, the adoption is an absolute
nullity. The fact of adoption is never
presumed, but must be affirmatively proved
by the person claiming its existence, such

as by the decree of adoption issued by the


court. (Lazatin vs. Campos, G.R. No. L43955, July 30, 1979)
GROUNDS FOR RESCISSION: (R-A-S-A)
1. Repeated physical violence and verbal
maltreatment by the adopter despite having
undergone counseling;
2.Attempt on the life of the adoptee;
3.Sexual assault or violence;
4. Abandonment or failure to comply with
parental obligations (Section 19, R.A 8552.)
VENUE:
Family Court of the city or province where
the adoptee resides.

BAR QUESTION (2009)


Q: Rafael, a wealthy bachelor, filed a
petition for the adoption of Dolly, a one-year
old foundling who had a severe heart
ailment. During the pendency of the
adoption proceedings, Rafael died of natural
causes. The Office of the Solicitor General
files a motion to dismiss the petition on the
ground that the case can no longer proceed
because of the petitioners death.
(A) Should the case be dismissed? Explain.
(B) Will your answer be the same if it was
Dolly who died during the pendency of the
adoption proceedings? Explain.

A:
(A) It depends on the stage of the
proceedings when Rafael died. If he died
after all the requirements under the law
have been complied with and the case is

already submitted for resolution, the court


may grant the petition and issue a decree of
adoption despite the death of the adopter.
Otherwise, the death of the petitioner shall
have the effect terminating the proceedings.
(B) No, if it was Dolly who died, the case
should be dismissed. Her death terminates
the proceedings.
Ordinarily, abandonment by a parent to
justify the adoption of his child without his
consent, is a conduct which evinces a
settled purpose to forego all parental duties.
The term means neglect and refusal to
perform the filial and legal obligations of
love and support. If a parent withholds
presence, love, care, the opportunity to
display filial affection, and neglects to lend
support and maintenance, the parent, in
effect,
abandons
the
child.
Merely
permitting the child to remain for a time
undisturbed in the care of others is not
such an abandonment. To dispense with
the
requirement
of
consent,
the
abandonment must be shown to have
existed at the time of adoption. (Landingin
v. RP, G.R. No. 164948, June 27, 2006)

INTER-COUNTRY ADOPTION is a sociolegal process of adopting a Filipino child by


a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed,
the supervised trial custody is undertaken,
and the decree of adoption is issued outside
the Philippines. (R.A. No. 8043)

COMPARATIVE CHART OF DOMESTIC ADOPTION AND INTER-COUNTRY ADOPTION


ADOPTION
LAWS
Short Title

R.A. NO. 8552


Domestic Adoption

R.A. NO. 8043


Inter Country Adoption

What kind
Promulgation
What it
governs

Definition of
Child

Who may
adopt

Qualifications

Act of 1998
Judicial Adoption

Act of 1995
Extrajudicial Adoption

February 25, 1998

June 7, 1995

R.A. 8552 amended Articles


183 up to 193 of the Family
Code of the Philippines and is
the governing law for Filipino
citizens
adopting
other
Filipinos
Child is a person below 18
years of age
The following may adopt:
1.Any Filipino citizen;
2.Any alien possessing the
same qualifications as above
stated for Filipino nationals;
3.The guardian with respect
to the ward
A.Filipino citizen
1.Legal age, in possession of
full civil capacity and legal
rights;
2.Of good moral character,
has not been convicted of any
crime
involving
moral
turpitude, emotionally;
3.Psychologically capable of
caring for children;
4.At least 16 years older
than the adoptee
B.Alien
1.Same as the qualifications
of Filipino citizen.
2.His/her
country
has
diplomatic relations with the
Republic of the Philippines;
3.That he / she has been
living in the Philippines for at
least 3 years continuous
years prior to the filing of the

R.A. 8043 on the other hand, governs the


adoption of Filipinos by foreigners, and is
implemented by the Inter-Country Adoption
Board
Child means a person below 15 years of age
unless sooner emancipated by law

An alien or a Filipino citizen permanently


residing abroad may file an application for
inter-country adoption of a Filipino child

1.Is at least 27 years of age and at least 16


years older than the child to be adopted, at
the time of application unless the adopter is
the parent by nature of the child to be
adopted or the spouse of such parent;
2.If married, his/her spouse must jointly
file for the adoption;
3.Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling from
an accredited counselor in his/ her country;
4.Has not been convicted of a crime
involving moral turpitude;
5.Is eligible to adopt under his/her national
law;
6.Is in a position to provide the proper care
and support and to give the necessary moral
values and example to all his children,
including the child to be adopted;
7.Agrees to uphold the basic rights of the
child as embodied under Philippine laws, the
U.N. Convention on the rights of the Child,

application for adoption and


maintains such residence
until the adoption decree is
entered;
4.He/she has been certified
by his/her diplomatic or
consular
office
or
any
appropriate
government
agency that he/ she has the
legal capacity to adopt
his/her country; and
5.His/her government allows
the adoptee to enter his/her
country as his/her adopted
son/daughter
Guardian
Only after the termination of
the
guardianship
and
clearance of his/her financial
accountabilities
The
following
may
be
adopted:
1.Any person below 18 years
of age who has been
administratively or judicially
declared available for
adoption;
Who may be
adopted

2.The legitimate son/daughter


of one spouse by the other
spouse;
3.An
illegitimate
son/daughter by a qualified
adopter to improve his/ her
status to that of legitimacy;
4.A person of legal age if,
prior to the adoption, said
person has been consistently
considered and treated by the
adopter/s as his/her own
child since miniroty;

and to abide by the ruled and regulations


issued to implement the provisions of this
Act;
8.Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws; and
9.Possesses all the qualifications and none
of the disqualifications provided herein and
in other applicable Philippine laws

Only a legally free child may be the subject


of inter-country adoption

5.A child whose adoption has


been previously rescinded; or
6.A child whose biological or
adoptive parent/s has died:
Provided that no proceedings
shall be initiated within 6
months from the time of
death of said parent/s

Where to file
Application

Family court of the place


where the adopter resides

What petition
for adoption
may include

May include prayer for change


of name, rectification of
simulated birth or declaration
that the child is a foundling,
abandoned,
dependent
of
neglected child.

Is there a
need to
include
income tax
returns,
police
clearance,
character
reference,
family
picture, birth
certificate of
adopter
What law will
apply when a
foreigner who
is married to
a Filipino
citizen seeks
to adopt
jointly with
his/her
spouse a
relative

Not required

R. A. 8552 will apply

RTC having jurisdiction over the child, or


with the Inter Country Adoption Board,
through an intermediate agency, whether
governmental
or
an
authorized
and
accredited agency, in the country of the
prospective adoptive parents.

Only petition for adoption

Required to be annexed to the petition

R.A. 8043 does not apply

within the
fourth degree
of
consanguinity
or affinity of
the Filipino
spouse
Supervised
Trial Custody
Penalty for
any
government
official,
employee or
functionary
who shall be
found guilty
of violating
any of the
provisions of
this adoption
laws

Supervised
trial
custody
period in the Philippines for
at least 6 months

Supervised trial custody period


Philippines for at least 6 months

Shall automatically
suspension
until
resolution of the case

Same

suffer
the

EFFECTS OF ADOPTION
1. Adopter will exercise parental authority;
2. All legal ties between biological parents
and the adoptee shall be severed, except
when biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate
child of adopter for all intents and
purposes; and
4. Adopters shall have reciprocal rights of
succession
without
distinction
from
legitimate filiation.
It is the change of the adoptees surname to
follow that of the adopter which is the
natural and necessary consequence of a
grant of adoption and must specifically be
contained in the order of the court, in fact,
even if not prayed for by petitioner.

in

the

(Republic vs. Hernandez, G.R. No.L- 117209,


February 9, 1996)

JOINT ADOPTION OF SPOUSES


General Rule: Under the Family Code, joint
adoption by husband and wife is
mandatory. This is in consonance with the
concept of joint parental authority over the
child. (Republic vs. Toledano, G.R. No.
94147, June 8, 1994)
Exceptions:
1. If one spouse seeks to adopt the
legitimate child of the other;
2. If one spouse seeks to adopt his own
legitimate child, provided that the other
spouse has signified his consent thereto; or
3. If the spouses are legally separated from
each other. (A.M. No. 02-6-02, Sec. 4)

BAR QUESTION (2012)


Q: Spouses Primo and Monina Lim,
childless, were entrusted with the custody
of two (2) minor children, the parents of
whom were unknown. Eager of having
children of their own, the spouses made it
appear that they were the childrens
parents by naming them Michelle P. Lim
and Michael Jude Lim. Subsequently,
Monina married Angel Olario after Primos
death.
She decided to adopt the children by
availing the amnesty given under R.A. 8552
to those individuals who simulated the
birth of a child. She filed separate petitions
for the adoption of Michelle, then 25 years
old and Michael, 18. Both Michelle and
Michael gave consent to the adoption. The
trial court dismissed the petition and ruled
that Monina should have filed the petition
jointly with her new husband.
Monina, in a Motion for Reconsideration
argues that mere consent of her husband
would suffice and that joint adoption is not
needed, for the adoptees are already
emancipated. Is the trial court correct in
dismissing the petitions for adoption?
A: Yes, the trial court was correct. At the
time the petitions for adoptions were
filed, petitioner had already remarried.
Under the law, husband and wife shall
adopt jointly, except in the cases
enumerated in the law. The adoption
cases of Michelle and James do not fall
in any of the exceptions provided in the
law where a spouse is permitted to adopt
alone. Hence, Monina should adopt
jointly with her husband Angel.

RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS

This rule is applicable only when the


hospitalization of the insane person is for
the public welfare or for the welfare of the
said person, who in the judgment of the
Director (now Secretary) of Health, is
insane, provided that the one who has
charge of him is opposed to such
confinement (Herrera, Special Proceedings,
[2005] p. 462).
Hospitalization of the insane
(Rule 101) as distinguished from
Guardianship (Rule 92-97)
Hospitalization of the insane (Rule101)
For the purpose of protecting the community at
large and in the nature of police regulations.
VENUE: RTC of the province where the
person alleged to be insane is found. (Rule
101, Sec. 1)
Who may file: Director of Health (now
Secretary of Health) with the assistance of
City or Provincial Prosecutor. (Rule 101,
Sec. 1)
Requisites for filing a petition:
1. Secretary of Health is of the opinion
that the commitment of the person
alleged to be insane is for the public
welfare or for the welfare of said
person; and
2. Such person or the one having
charge of him is opposed to his
being taken to a hospital or other
place for the insane. (Rule 101, Sec.
1)
ORDER FOR HEARING

For the
and the

(Rule 101, Sec. 2)


1. The court shall fix a date and place
for hearing where all concern may
appear to contest the petition;
2. Copies of the notice of hearing shall
be served upon:
a. The person alleged to be
insane; and
b. The one having charge of
him, or on such of his
relatives residing in the
province/city as the judge
may deem proper.
3. The court shall order the sheriff to
produce the alleged insane person (if
possible) on the date of hearing;
4. Upon satisfactory proof that the
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 hospital/asylum;
5. The court shall make proper
provisions for the custody of the
wards property until a guardian is
properly appointed.
Estate of the insane person: Pending an
appeal from the judgment declaring a
person to be insane, the trial court has
jurisdiction to order a third party to appear
and show cause why the property of the
insane should not be delivered to the
guardian. It is the duty of the court to
protect the property of the insane pending
the appeal (Mercader vs. Wislizenus, G.R.
No. L-11739, August 25, 1916).
NOTES: The Secretary of Health may file a
petition in the RTC which ordered the
commitment, when he is of the opinion that
the person is permanently or temporarily
cured or may be released without danger
(Sec. 4, Rule 101).

It shall be the duty of the provincial fiscal


or the city fiscal (now prosecutor) to prepare
the petition for the Secretary of Health and
represent him in court in all proceedings
(Rule 101, Sec. 5).
The Health Secretary cannot order release
without the approval of the RTC. On the
other hand, the RTC cannot order release
without recommendation from the Health
Secretary (Chin Ah Foo vs. Concepcion, G.R.
No. L-33281, March 31, 1930).

RULE 102
HABEAS CORPUS
Writ of Habeas Corpus
It is a writ directed to the person detaining
another and commanding him to produce
the body of the prisoner at a certain time
and place with the day and the cause of his
caption and detention to do, submit to and
receive whatsoever, the court or judge
awarding the writ shall consider in that
behalf. (Ilusorio v. Bildner, G.R. No. 139789
May 12, 2000).
The privilege of writ is so sacred that,
according to our Constitution, it shall not
be suspended except in cases of invasion or
rebellion when public security requires it
(Art. III Sec. 15, 1987 Constitution).
Kinds of Writ of Habeas Corpus
PRELIMINARY CITATION
If the person is detained under governmental
authority and the illegality of his detention is
not patent from the petition for the writ, the
court issues the citation to show cause why
the writ of habeas corpus should not issue.

Who may issue the writ?


1. Supreme Court
2. Court of Appeals

It is issu
appears to

3. Regional Trial Court

Considering that the writ is made


enforceable within a judicial region,
petitions for the issuance of the writ of
habeas corpus, whether they be filed under
Rule 102 of the Rules of Court or pursuant
to Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed with any of the proper
RTCs within the (national) judicial region
where enforcement thereof is sought.
(Tujan-militante v. Cada-Deapera, G.R. No.
210636, July 28, 2014)
Writ of Habeas Corpus extends to: (Rule
102, Sec. 1)
1. Cases of illegal confinement or
detention by which a person is
deprived of his liberty; and
2. Cases by which the rightful custody
of the person is withheld from the
person entitled thereto.

Hence, it requires the determination of


whether his detention or confinement is
illegal or not or whether by his detention,
another person is deprived of his legal
custody
over
him.
(Festin,
Special
Proceedings: A Foresight to the Bar Exam,
[2011] p. 159)

A restrictive custody and monitoring of


movements or whereabouts of police
officers under investigation by their
superiors is not a form of illegal detention
or restraint of liberty. Restrictive custody is,
at best, nominal restraint which is beyond
the ambit of habeas corpus. It is neither
actual nor effective restraint that would call
for the grant of the remedy prayed for. It is
a permissible precautionary measure to
assure the PNP authorities that the police
officers concerned are always accounted for.
(Ampatuan v. Macaraig, G.R. No. 182497,
June 29, 2010)

BAR QUESTION (2008)


A was arrested on the strength of a
warrant of arrest issued by the RTC in
connection with an Information for
Homicide. W, the live-in partner of A filed a
petition for habeas corpus against As jailer
and police investigators with the Court of
Appeals.
1. Does W have the personality to file
the petition for habeas corpus?
2. Is the petition tenable?
SUGGESTED ANSWER:
1. Yes, W, the live-in partner of A, has
the personality to file the petition for
habeas corpus because it may be
filed by some person in his behalf.
2. No. The petition is not tenable
because the warrant of arrest was
issued by the court which had
jurisdiction to issue it.

Contents of petition
Application for the writ shall be by petition
signed and verified either by the party for
whose relief it is intended, or by some
person on his behalf, and shall set forth:
1. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
2. The officer or name of the person by
whom he is so imprisoned or restrained; or,
if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed the
person intended;
3. The place where he is so imprisoned or
restrained, if known;

4. A copy of the commitment or cause of


detention of such person, if it can be
procured without impairing the efficiency of
the remedy; or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear. (Rule 102, Sec. 3)
Q:WHEN STRICT COMPLIANCE MAY BE
DISPENSED?
A: Strict compliance with the technical
requirements for a habeas corpus petition
as provided in the Rules of Court may be
dispensed with where the allegations in the
application are sufficient to make out a
case for habeas corpus.
In Angeles v. Director of New Bilibid Prison,
the Court held that the formalities required
for petitions for habeas corpus shall be
construed liberally. The petition for the writ
is required to be verified but the defect in
form is not fatal.
Indeed,
in
the
landmark
case
of
Villavicencio v. Lukban, this Court declared
that it is the duty of a court to issue the
writ if there is evidence that a person is
unjustly restrained of his liberty within its
jurisdiction even if there is no application
therefor. So long as this Court sits,
technicality cannot trump liberty. Therefore,
a petition which is deficient in form, such
as petitioners petition-letter in this case,
may be entertained so long as its
allegations sufficiently make out a case for
habeas corpus. (Fletcher v. Director of
Bureau of Corrections, UDK-14071 ,July 17,
2009)

Contents of the return


When the person to be produced is
imprisoned or restrained by an officer, the
person who makes the return shall state
therein, and in other cases the person in

whose custody the prisoner is found shall


state, in writing to the court or judge before
whom the writ is returnable, plainly and
unequivocably:
1. Whether he has or has not the party in
his custody or power, or under restraint;
2. If he has the party in his custody or
power, or under restraint, the authority and
the true and whole cause thereof, set forth
at large, with a copy of the writ, order,
execution, or other process, if any, upon
which the party is held;
3. If the party is in his custody or power or
is restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by
reason of which he cannot, without danger,
be brought before the court or judge;
4. If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what
time, for what cause, and by what authority
such transfer was made. (Rule 102, Sec. 10)
WHEN PETITION FOR HABEAS CORPUS
IS NOT PROPER:
1. For asserting or vindicating denial of
right to bail;
2. For correcting errors in appreciation of
facts/appreciation of law;
3. Once a person detained is duly charged
in court, he may no longer file a petition for
habeas corpus; or
4. Where the trial court had jurisdiction
over the cause, over the person of the
accused, and to impose the penalty
provided for by law, the mistakes committed
by the trial court, if any, cannot be
corrected by habeas corpus (Sotto vs.
Director of Prisons, G.R. No. L- 18871, May
30, 1962)

Exceptions where a Writ of Habeas


Corpus may be issued even if the
detention is by virtue of a judgment
The writ may be allowed as a postconviction remedy when the proceedings
leading to the conviction were attended by
any
of
the
following
exceptional
circumstances:
1. There was a deprivation of a
constitutional right resulting in the
restraint of a person;
2. The court had no jurisdiction to impose
the sentence; or
3. The imposed penalty was excessive, thus
voiding the sentence as to such excess.
(Samuel Barredo y Golani vs. Hon. Vicente
Vinarao, G.R. No. 168728, August 2, 2007)

WHEN WRIT DISALLOWED/


DISCHARGED (JURIS)
1. If Jurisdiction appears after the writ
is allowed;
2. If the person is in the custody of an
officer

Under process issued by a court or by


virtue of a judgment or order or a court of
record which has jurisdiction to issue the
process, render the judgment or make the
order;
3. If the person is Charged with or
convicted of an offense in the
Philippines;
4. If the person is suffering Imprison
under lawful judgment;

5. Three (3)-day detention of a Suspect


without charge (Sec. 18, R.A. No.
9372 Human Security Act of 2007)
No court is empowered as a judicial
authority to compel a husband to live with
his wife. Coverture cannot be enforced by
compulsion
of
a
writ
of habeas
corpus carried out by sheriffs or by any
other mesne process. That is a matter
beyond judicial authority and is best left to
the man and womans free choice. (Ilusorio
vs. Bildner, G.R. No. 139789, May 12, 2000)

BAR QUESTION (2008)


After Alma had started serving her
sentence for violation of BP 22, she filed a
petition for a writ of habeas corpus, citing
Vaca vs CA where the sentence of
imprisonment of a party found guilty of
violation of BP 22 was reduced to a fine
equal to double the amount of the check
involved. She prayed that her sentence be
similarly modified and that she be
immediately released from detention. In the
alternative, she prayed that pending
determination on whether the Vaca ruling
applies to her, she be allowed to post bail
pursuant to Rule 102, Sec. 14, which
provides that if a person is lawfully
imprisoned or restrained on a charge of
having
committed
an
offense
not
punishable by death, he may be admitted to
bail in the discretion of the court.
Accordingly, the trial court allowed Alma to
post bail and then ordered her release.
In your opinion, is the order of the trial
court correct under Rule 102?

SUGGESTED ANSWER: No, Alma, who is


already convicted by final judgment,
cannot be entitled to bail under Sec. 14,

Rule 102. The provision presupposes


that she had not been convicted as yet.
It provides that if she is lawfully
imprisoned or restrained for an offense
not punishable by death, she may be
recommitted
to
imprisonment
or
admitted to bail in the discretion of the
court or judge.

Doctrine of Supervening Events


Even if the arrest of a person is illegal,
supervening events may bar his release or
discharge from custody. What is to be
inquired into is the legality of his detention
as of, at the earliest, the filing of the
application for a writ of habeas corpus, for
even if the detention is at its inception
illegal, it may, by reason of some
supervening events, such as the instances
mentioned in Section 4 of Rule 102, be no
longer illegal at the time of the filing of the
application. Among such supervening
events is the issuance of a judicial process
preventing the discharge of the detained
person. (Velasco vs. CA, G.R. No. 118644,
July 7, 1995)

A verified petition for the rightful custody of


a minor may be filed by any person
claiming suchright.
Where to File Petition (Sec.3)
Family Court of the province or city where
the petitioner resides or where the minor
may be found.
The provision invoked only applies to
petitions for custody of minors, and not to
habeas corpus petitions. Thus:
Section 3. Where to file petition.- The
petition for custody of minors shall be filed
with the Family Court of the province or
city where the petitioner resides or where
the minor may be found.
(Tujanmilitante v. Cada-Deapera, G.R. No.
210636, July 28, 2014)
Contents of Verified Petition (Sec.4)
(CONS)
1. The personal Circumstances of the
petitioner and respondent;
2. The Name, age and present whereabouts
of the minor and his or her relationship to
the petitioner and respondent;
3. The material Operative facts constituting
deprivation of custody;
4. Such other matters which are relevant to
the custody of minor.

RULES ON CUSTODY OF MINORS


AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC)
Who May File Petition (Sec.2)

Motion to dismiss is not allowed


except on the ground of lack of
jurisdiction over the subject matter
or over the parties (Sec.6).
Respondent
must
file
verified
answer within 5 days from service of
summons and copy of petition
(Sec.7).
Pre-trial is mandatory (Sec.9).

In Sombong, the Court laid down three


requisites in petitions for habeas corpus
involving minors: (1) the petitioner has a
right of custody over the minor, (2) the

respondent is withholding the rightful


custody over the minor, and (3) the best
interest of the minor demands that he or
she be in the custody of the petitioner.
(Bagtas v. Santos, G.R. No. 166682,
November 27, 2009)

Provisional Order Awarding Custody


(Sec.13)
As far as practicable, the following order of
preference shall be observed in the award of
custody: (BEG BAO)
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of age
and of sufficient discernment unless the
parent chosen is unfit;
3. The Grandparent or if there are several
grandparents, grandparent chosen by the
minor over seven years of age and of
sufficient
discernment,
unless
the
grandparent chosen is unfit or disqualified;
4. The eldest Brother or sister over twenty
one (21) years of age unless he or she is
unfit or disqualified;
5. The Actual custodian of the minor over
twenty one (21) years of age, unless the
former is unfit or disqualified; or
6. Any Other person or institution the court
may deem suitable to provide proper care
and guidance for the minor.
Temporary Visitation Rights (Sec.15)
The court shall provide in its order
awarding provisional custody appropriate
visitation rights to the non - custodial
parent or parents unless the court finds
said parent or parents unfit or disqualified.
Hold Departure Order (Sec.16)

The minor child subject of the petition shall


not be brought out of the country without
prior order from the court while the petition
is pending. The Court, motu proprio or upon
application under oath, may issue an ex
parte hold departure order.
NOTE: The court may
Protection Order (Sec.17)

also

issue

APPEAL (Sec.19)
Notice of appeal within 15 days from notice
of denial of motion for reconsideration or
new trial.
No appeal shall be allowed unless a motion
for reconsideration or new trial has been
filed.
Petition for Writ of Habeas Corpus
(Sec.20)
Shall be verified and filed with the
Family Court where petitioner
resides or where minor may be
found.
Shall be enforceable within its
judicial region to which the Family
Court belongs.
The petition may however be filed
with the regular court in the
absence of the presiding judge of the
Family Court, provided however that
the regular court shall refer the case
to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the
SC, CA, or with any of its members
and, if so granted the writ shall be
enforceable
anywhere
in
the
Philippines. The writ may be made
returnable to a Family Court or to
any regular court within the region
where the petitioner resides or
where the minor may be found for
hearing and decision on the merits.

WRIT OF AMPARO
(A.M. No. 07-9-12-SC)

DISTINCTION BETWEEN WRIT OF


AMPARO AND SEARCH WARRANT
Writ of Amparo is a remedy available to
any person whose right to life, liberty and
security is violated or threatened with
violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ applies to extralegal/extrajudicial
killings and enforced disappearances or
threats thereof.
The Amparo Rule was intended to address
the intractable problem of extralegal
killings and enforced disappearances, its
coverage, in its present form, is confined to
these two instances or to threats thereof.
Extralegal killings are killings committed
without due process of law, i.e., without
legal safeguards or judicial proceedings.
On
the
other
hand,
enforced
disappearances are attended by the
following
characteristics:
an
arrest,
detention or abduction of a person by a
government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government;
the refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
the protection of law. (Caram vs. Segui
G.R. No. 193652, August 5, 2014)
A search warrant is an order in writing
issued in the name of the People of the
Philippines, signed by a judge and directed
to a peace officer, commanding him to
search for personal property described
therein and bring it before the court.

The threatened demolition of dwelling by


virtue of a final judgment of the court is not
included among the enumeration under
Section 1 of the Rule on the Writ of
Amparo. A claim to dwelling dos not
constitute right to life, liberty, and security.
(Canlas
vs.
Napico
Homeowners
Association, G.R. No. 182795, June 5,
2008)

WHO MAY FILE (Sec. 2)


1. Aggrieved Party
2. Any qualified person or entity in the
following order:
a. The spouse, children and parents of
the aggrieved party;
b. Any
ascendant,
descendant
or
collateral relative of the aggrieved
party within the fourth civil degree of
consanguinity or affinity, in default of
those mentioned in the preceding
paragraph; or
c. Any concerned citizen, organization,
association or institution, if there is
no known member of the immediate
family or relative of the aggrieved
party.
NOTE: The filing of any one of those
enumerated suspends the right of all other
authorized parties to file similar petitions.

CONTENTS OF RETURN (Sec. 9)


Within seventy-two (72) hours after service
of the writ, the respondent shall file a
verified written return together with
supporting affidavits which shall, among
other things, contain the following:
a. The lawful defenses to show that the
respondent did not violate or threaten
with violation the right to life, liberty
and security of the aggrieved party,
through any act or omission;

b. The steps or actions taken by the


respondent to determine the fate or
whereabouts of the aggrieved party
and the person or persons responsible
for the threat, act or omission;
c. All relevant information in the
possession
of
the
respondent
pertaining to the threat, act or
omission against the aggrieved party;
and

d. If the respondent is a public official or


employee, the return shall further
state the actions that have been or
will still be taken:
i. to verify the identity of the
aggrieved party;
ii. to
recover
and
preserve
evidence related to the death
or disappearance of the person
identified in the petition which
may aid in the prosecution of
the
person
or
persons
responsible;
iii. to identify witnesses and
obtain statements from them
concerning
the
death
or
disappearance;
iv. to
determine
the
cause,
manner, location and time of
death or disappearance as well
as any pattern or practice that
may have brought about the
death or disappearance;
v. to identify and apprehend the
person or persons involved in
the death or disappearance;
and
vi. to
bring
the
suspected
offenders before a competent
court.

The return shall also state other matters


relevant to the investigation, its resolution
and the prosecution of the case.

A general denial of the allegations in the


petition shall not be allowed.

EFFECTS OF FAILURE TO
FILE RETURN
In case the respondent fails to file a return,
the court, justice or judge shall proceed to
hear the petition ex parte (Sec.12).

OMNIBUS WAIVER RULE


The respondent must plead all his defenses
in the return. Failure to do so shall operate
as a waiver of such defense not therein
pleaded.

PROCEDURE FOR HEARING


SUMMARY HEARING (Sec. 13) - The
hearing on the petition shall be summary
in nature.
However, the court, justice or judge may
call for a preliminary conference. It shall be
from day to day until completed and given
the same priority as petitions for habeas
corpus.
INSTITUTION OF SEPARATE ACTION
This Rule shall not preclude the filing of
separate criminal, civil or administrative
actions (Sec. 21).
EFFECTS OF FILING OF CRIMINAL
ACTION
When a criminal action has been
commenced, no separate petition for the
writ shall be filed. The reliefs under the writ
shall be available by motion in the criminal
case (Sec. 22).
CONSOLIDATION (Sec. 23)
a. When a criminal action is filed
subsequent to the filing of a petition

for the writ, the latter shall be


consolidated with the criminal action.
b. When a criminal action and a
separate
civil
action
are
filed
subsequent to a petition for a Writ of
Amparo,
the
latter
shall
be
consolidated with the criminal action.
c. After consolidation, the procedure
under this Rule shall continue to
apply to the disposition of the reliefs
in the petition.
INTERIM RELIEFS AVAILABLE TO
PETITIONER AND RESPONDENT
(Sec. 14)
1. Temporary Protection Order an order
requiring that the petitioner or the
aggrieved party and any member of the
immediate family be protected in a
government agency or by an accredited
person or private institution capable of
keeping and securing their safety.
2. Inspection Order - an order directing
any person in possession or control of a
designated land or other property, to permit
entry for the purpose of inspecting,
measuring, surveying, or photographing the
property or any relevant object or operation
thereon.
3.
Production
Order

an
order
commanding any person in possession,
custody or control of any designated
documents, papers, books, accounts,
letters, photographs, objects or tangible
things, or objects in digitized or electronic
form, which constitute or contain evidence
relevant to the petition or the return, to
produce and permit their inspection,
copying or photographing by or on behalf of
the movant.
4. Witness Protection Order an order
referring the witnesses to the DOJ for
admission to the Witness Protection,

Security and Benefit Program, pursuant to


R.A. No. 6981. The court, justice or judge
may also refer the witnesses to other
government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety.

QUANTUM OF PROOF IN APPLICATION


FOR ISSUANCE OF WRIT OF AMPARO

Burden of Proof and Standard of


Diligence Required
1. The parties shall establish their claims
by substantial evidence.
2. The respondent who is a private
individual or entity must prove that
ordinary diligence as required by applicable
laws, rules and regulations was observed in
the performance of duty.
3. The respondent who is a public official or
employee must prove that extraordinary
diligence as required by applicable laws,
rules and regulations was observed in the
performance of duty.
4. The respondent public official or
employee cannot invoke the presumption
that official duty has been regularly
performed to evade responsibility or
liability.
WRIT OF HABEAS DATA
(A.M. No. 08-1-16 SC)
A remedy available to any person whose
right to privacy in life, liberty or security is
violated or threatened by an unlawful act or
omission of a public official or employee, or
of a private individual or entity engaged in
the gathering, collecting or storing of data
or information regarding the person, family,
home and correspondence of the aggrieved
party.
SCOPE OF WRIT

1. To all cases of violation or threat to the


privacy of a person, his family, home and
correspondence
2. To all habeas corpus and amparo cases.
(It complements the two writs by helping
produce or correct data that is relevant to
protect the rights of a person who
disappeared or is a victim of extrajudicial
killing).
AVAILABILITY OF WRIT
Essentially allows families of victims of
enforced disappearance to petition the
courts to compel government and security
officials to allow access to documents about
the missing
The writ can be invoked by such person
to:
1. Find out the information collated about
him, particularly by law enforcement
agencies, and
2. Compel them to disclose the use and
purpose of such information.
When there is no concrete allegations of
unjustified or unlawful violation of the right
to life, liberty or security and when the
prayer for the issuance of a Writ of Habeas
Data is nothing more than a fishing
expedition, the said Writ cannot be issued.
(Tapuz vs. Del Rosario, G.R. No. 182484,
June 17, 2008)
Even assuming that the photos in issue are
visible only to the sanctioned students
Facebook friends, respondent STC can
hardly be taken to task for the perceived
privacy invasion since it was the minors
Facebook friends who showed the pictures
to Tigol. Respondents were mere recipients
of what were posted. They did not resort to
any unlawful means of gathering the
information as it was voluntarily given to
them by persons who had legitimate access
to the said posts. Clearly, the fault, if any,
lies with the friends of the minors.

Curiously enough, however, neither the


minors nor their parents imputed any
violation of privacy against the students
who showed the images to Escudero.
Furthermore, petitioners failed to prove
their
contention
that
respondents
reproduced
and
broadcasted
the
photographs. In fact, what petitioners
attributed to respondents as an act of
offensive disclosure was no, more than the
actuality that respondents appended said
photographs
in
their
memorandum
submitted to the trial court in connection
[] These are not tantamount to a violation
of the minors informational privacy rights,
contrary to petitioners assertion. (Vivares
vs. St. Theresas College
G.R. No. 202666, September 29, 2014)

BAR QUESTION (2010)


Azenith, the cashier of Temptation
Investments, Inc. (Temptation, Inc.) with
principal offices in Cebu City, is equally
hated and loved by her co-employees
because she extends cash advances or
"vales " to her colleagues whom she likes.
One morning, Azenith discovers an
anonymous letter inserted under the door
of her office threatening to kill her. Azenith
promptly reports the matter to her superior
Joshua, who thereupon conducts an
internal investigation to verify the said
threat. Claiming that the threat is real,
Temptation, Inc. opts to transfer Azenith to
its Palawan Office, a move she resists in
view of the companys refusal to disclose
the results of its investigation. Decrying the
move as a virtual deprivation of her
employment, Azenith files a petition for the
issuance of a writ of habeas data before the
Regional Trial Court (RTC) to enjoin
Temptation, Inc. from transferring her on
the ground that the companys refusal to
provide her with a copy of the investigation
results compromises her right to life, liberty
and privacy. Resolve the petition. Explain.

SUGGESTED
ANSWER:
Azeniths
petition for the issuance of a writ of
habeas data must be dismissed as there
is no showing that her right to privacy in
life, liberty, or security is violated or
threatened by an unlawful act or
omission. Neither was the company
shown to be engaged in the gathering,
collecting nor storing of data or
information regarding the person, family,
home and correspondence of the
aggrieved party.
WHO MAY FILE (Sec. 2)
1. Any aggrieved party.
2. In cases of extralegal killings and
enforced disappearances, the petition may
be filed by:
a. Any member of the immediate family
of the aggrieved party, namely: the
spouse, children and parents; or
b. Any
ascendant,
descendant
or
collateral relative of the aggrieved
party within the fourth civil degree of
consanguinity or affinity, in default of
those mentioned in the paragraph
CONTENTS OF THE PETITION (Sec. 6)
1. Personal circumstance of the petitioner
and the respondent
2. The manner the right to privacy is
violated or threatened and how it affects
the right to life, liberty or security of the
aggrieved party
3. Actions and recourses taken by petitioner
to secure the data or information
4. Location of the files, registers, or
database, the government office, and the
person in charge, in possession or in
control of the data or information, if known
5. The reliefs prayed for
6. Such other relevant reliefs as are just
and equitable.

NOTE: No docket fee and other lawful fees


shall be required from an indigent
petitioner.
CONTENTS OF RETURN
1. The lawful defenses such as national
security,
state
secrets,
privileged
communications, confidentiality of the
source of information of media and others;
2. In case of respondent in charge, in
possession or in control of the data
orinformation subject of the petition;
a. Disclosure of the data or information
about the petitioner, the nature of
such data or information, and the
purpose for its collection;
b. The steps or actions taken by the
respondent to ensure the security and
confidentiality
of
the
data
or
information; and,
c. The currency and accuracy of the data
or information held; and
3. Other allegations relevant to the
resolution of the proceeding.
A general denial of the allegations in the
petition shall NOT be allowed.
NOTE: In case the respondent fails to file a
return, the court, justice or judge shall
proceed to hear the petition ex parte unless
the court in its discretion requires the
petitioner to submit evidence.

INSTANCES WHEN PETITION MAY BE


HEARD IN CHAMBERS (Sec. 12)
A hearing in chambers may be conducted
where the respondent invokes the defense
that the release of the data or information
in question shall compromise national
security or state secrets, or when the data
or information cannot be divulged to the
public due to its nature or privileged
character.

CONSOLIDATION (Sec. 21)


When a criminal action and a separate civil
action are filed subsequent to a petition for
a writ of habeas data, the petition shall be
consolidated with the criminal action.

EFFECT OF FILING A CRIMINAL ACTION


(Sec. 22)
When a criminal action has been
commenced, no separate petition for the
writ shall be filed. The relief under the writ
shall be available to an aggrieved party by
motion in the criminal case.

INSTITUTION OF
SEPARATE ACTION (Sec. 20)
The filing of a petition for the writ of habeas
data shall NOT preclude the filing of
separate criminal, civil or administrative
actions.
However, when a criminal action has been
commenced, no separate petition for
petition for the writ shall be filed, but the
reliefs under the writ shall be available by
motion in the criminal case, and the
procedure under this Rule shall govern the
disposition of the reliefs available under the
writ of habeas data (Sec. 22).

QUANTUM OF PROOF IN APPLICATION


FOR ISSUANCE OF WRIT OF
HABEAS DATA
(Sec. 16)
By substantial evidence. Private respondent
to prove ordinary diligence was observed in
the performance of duty. Public official or
employee respondent to prove extraordinary
diligence was observed and cannot invoke
the presumption that official duty has been
regularly performed to evade responsibility
or liability.

PROCEDURE FOR THE ISSUANCE OF


THE WRIT OF HABEAS CORPUS

The reason for these requirements is that a


change of name is a matter of public
interest (Herrera, Special Proceedings,
[2005] p. 516)
An alien can petition for a change of name
but he must be domiciled in the
Philippines. (Ong Huan Tin vs. Republic,
G.R. No. L-20997, April 27, 1967)
The requirement verification of a pleading is
a formal, not jurisdictional, requisite. That
requirement affect the form of the pleading.
Non-compliance with it does not necessarily
render the pleading fatally defective. The
lack of verification to a petition for change
of name is not a ground for dismissing the
petition. (Oshito v. Republic, G.R. No. L21180, March 31, 1967)

RULE 103
CHANGE OF NAME
Jurisdictional requirements:
To confer jurisdiction on the court, since
petition for change of name are proceedings
in rem, strict compliance with the
requirements is essential, namely, that
such verified petition should be published
for three (3) consecutive weeks in some
newspaper of general circulation in the
province; and that both the title or caption
of the petition and its body shall recite:
1. The name or names or aliases of the
applicant;
2. The cause for which the change of
name is sought; and
3. The new name asked for.

BAR QUESTION (2009)


If Henry, an American citizen residing in
the Philippines, files a petition for change of
name before a Philippine court, what law
shall apply? Explain.
SUGGESTED ANSWER: Philippine law
will apply. The petition for change of
name in the Philippines will affect only
the records of the petitioner and his
transactions in the Philippines. The
Philippine court can never acquire
jurisdiction over the custodian in the US
of the records of the petitioner.
Moreover, change of name has nothing to
do with the legal capacity or status of
the alien. Since Philippine records and
transactions are the only ones affected,
the Philippine court may affect the
change only in accordance with the laws
governing
those
records
and
transactions that law cannot be but
Philippine law.

GROUNDS FOR CHANGE OF NAME


1. When the name is ridiculous,
dishonorable or extremely difficult to
write or pronounce;
2. When the change results as a legal
consequence, as in legitimation;
3. When the change will avoid confusion;
4. When one has continuously used and
has been known since childhood by a
Filipino name, and was unaware of
alien parentage; or
5. A sincere desire to adopt a Filipino
name to erase signs of former
alienage, all in good faith and without
prejudicing anybody.

CONSEQUENCE
CHANGE NAME

OF

GRANT

TO

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 known in the
community. (Ng Yao Siong vs. Republic,
G.R. No. L-20306, March 31, 1966)
A mere change of name would not
cause a cause in ones existing family
relations, nor create new family rights and
duties where none exists before. Neither
would it affect a persons legal capacity, civil
status or personality. What would be
altered is the word or group of words by
which he is identified and distinguishes
from the rest of his fellow me. (Ang Chay vs.
Republic, G.R. No. L-18284, April 30, 1963)
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 and children. (Secan kok vs.
Republic, G.R. No. L-27621, August 30,
1973)

RULE 104
VOLUNTARY DISSOLUTION OF
CORPORATIONS REPEALED
Note: Dissolution of corporations should
now be filed with the SEC and is covered
under Title XIV, Sections 117 to 122 of the
New Corporation Code of the Philippines
(Herrera, Special Proceedings, 2005, p.531).

RULE 105
JUDICIAL APPROVAL OF
VOLUNTARY RECOGNITION OF
MINOR NATURAL CHILDREN
VOLUNTARY RECOGNITION
It is an admission of the fact of paternity or
maternity by the presumed parent,
expressed in the form prescribed by the
Civil Code. Its essence lies in the avowal of
the parent that the child is his; the
formality is added to make the admission
incontestable, in view of its consequences
(Gapusan Chua v. CA, G.R. No. L-46746
March 15, 1990).

The filiation if illegitimate children, like


legitimate children, is established by:
1. Record of birth appearing in the civil
register or a final judgment; or
2. Admission of legitimate filiation in a
public document or a private handwritten
and signed by the parent concerned.
The due recognition of an illegitimate child
in a record of birth, will, a statement before
a court record, or any authentic writing is,
in
itself
a
consummated
act
of

acknowledgement of a child, and no further


action is required. (Gono-Javier v. CA G.R.
No. 111994 December 29, 1994)

A: General rule: Yes. The family home


shall be exempt from execution, forced sale
or attachment.

Judicial approval of voluntary recognition is


required only where filiation is proved by:
1. Open and continuous possession of
status of a legitimate child; or

Exceptions: It is not exempt under the


following circumstances enumerated under
Article 155 of the Family Code:
1. For non-payment of taxes;

2. Any other means allowed by the


Rules of Court and special laws.

2. For debts incurred prior to the


constitution of the family home;

RULE 106
CONSTITUTION OF FAMILY HOME

Note: Deemed repealed by the Family Code.

Q: Define family home


A: The family home, constituted jointly by
the husband and the wife or by an
unmarried head of the family, is the
dwelling house where they and their family
reside, and the land on which it is situated
(Article 152, Family Code).
A family home is deemed constituted on a
house and lot from the time it is occupied
as a family residence. There is no need to
constitute
the
same
judicially
or
extrajudicially as required in the Civil Code.
If the family actually resides in the
premises, it is, therefore a family home as
contemplated by law. Thus, the creditors
should take the necessary precautions to
protect their interest before extending credit
to the spouse or head of the family who
owns the home (Modequillo v. Hon. Salinas
et al., G.R. No. 86355 May 31, 1990).
Q: Is the family home exempt from
execution, forced sale or attachment?

3. For debts accrued by mortgages on


the premises before or after such
constitution; and
4. For
debts
due
to
laborers,
mechanics,
architects,
builders,
material men and others who have
rendered
service
or
furnished
material for the construction of the
building
(Festin,
Special
Proceedings, 2008, p. 200)
RULE 107
ABSENTEES
PURPOSE:To appoint an administrator over
the propertiesof the absentee. Hence, if
absentee left noproperties, such petition is
unnecessary.
What are the instances Petition for
Appointment of a Representative is filed?
Petition for Appointment of a Representative
is filed to provisionally represent absentee
When a person:
1. Disappears from his domicile, his
whereabouts being unknown; and
2. Has not left an agent to administer
his property orthe power conferred
upon the agent has expired. (Rule
107, Sec. 1)

BAR QUESTION (2009)


Frank and Gina were married on
June 12, 1987 in Manila. Barely a year after
the wedding, Frank exhibited a violent
temperament, forcing Gina, for reasons of
personal safety, to live with her parents. A
year thereafter, Gina found employment as a
domestic helper in Singapore, where she
worked for ten consecutive years. All the
time she was abroad, Gina had absolutely
no communications with Frank, nor did she
hear any news about him. While in
Singapore, Gina met and fell in love with
Willie. On July 4, 2007, Gina filed a petition
with the RTC of manila to declare Frank
presumptively dead, so that she could marry
Willie.
The RTC granted Ginas petition. The
office of the Solicitor General (OSG) filed a
notice of Appeal with the RTC, stating that it
was appealing the decision of the Court of
Appeals on questions of fact and law. (a) Is a
petition for declaration of Presumptive Death
a special proceeding?

SUGGESTED ANSWER: No, the petition


for Declaration of Presumptive Death
provided in Art. 41 of the Family Code
is not the special proceeding governing
absentees under Rule 107 of the Rules
of Court whose rules of procedure will
not be followed. Said petition for
Declaration of Presumptive Death under
Article 41 of the Family Code is a
summary proceeding, authorized for
purposes only of remarriage of the
present spouse, to avoid incurring the
crime of bigamy. Nonetheless, it is in
the nature of a special proceeding,
being an application to establish a
status or a particular fact in court.
Where to file?

In the RTC where the absentee resided


before his disappearance.
Who may file petition?
1. Spouse present;
2. Heirs instituted in a will;
3. Relatives who would succeed intestate;
and
4. Those who have over the absentees
property some right subordinated to
thecondition of his death (Rule 107, Sec. 2).
When Petition for Declaration of Absence
and Appointment of a Trustee or
Administrator is filed
1. After the lapse of two (2) years:
a. From hisdisappearance and
without any news about the
absentee; or
b. Since the receipt of the last
news about the absentee;
2. After the lapse of five (5) years If
the
absentee
has
left
an
administrator of his property. (Rule
107, Sec. 2)
Q: What are the contents of a petition?
A: The petition must show the following:
1. The jurisdictional facts;
2. The names, ages, and residences of
the heirs instituted in the will, copy
of which shall be presented, and of
the relatives who would succeed by
the law of intestacy;
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 of the property belonging
to the absentee. (Rule 107, Sec. 3)
Q: Who may be appointed?

RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY

A: In the appointment of a representative:


1. The spouse present shall be
PREFERRED when there is no
legal separation; or
2. If left no spouse, or if the spouse
is
a
minor
or
otherwise
incompetent,
any
competent
person may be appointed by the
court.
In case of declaration of absence:
1. The trustee or administrator of the
absentees
property
shall
be
appointed (Sec. 7).
Grounds for termination of
Administration
The trusteeship or administration of the
property of the absentee shall cease upon
order of the court in any of the following
cases:
1. Absentee appears
through an agent;

personally

or

2. The death of the absentee is proved


and his testate or intestate heirs
appear;
3. Third person appears, showing by a
proper document that he has
acquired the absentees property by
purchase or other title (Sec. 8).

Venue and Jurisdiction: The verified


petition must be filed n the RTC where the
corresponding civil registry is located.
(Festin, Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 206)
Concept of clerical error
A clerical error is one which is
visible to the eye or obvious to the
understanding; an error made by the clerk
or a transcriber; a mistake in copying or
writing, or some harmless or innocuous
change such as correction of a name that is
merely misspelled or a misstatement of the
occupation of the parties. (Yu v. Civil
Registrar of Manila, G.R. No. L-36478, April
29, 1983)
Concept of substantial error
It is one which requires correction of
the error committed and registered in the
civil registry, and not one which requires
the court to render a change of the status
of petitioner as the issue in dispute which
is a process that is proper only in an
ordinary adversarial proceeding, not under
Rule 108. Hence, a petition under Rule 108
to declare the nullity of marriage is not
proper (Festin, Special Proceedings: A
Foresight to the Bar Exam, [2011] p. 206)
ENTRIES SUBJECT TO CANCELLATION
OR CORRECTION (Sec. 2)
a. Births;
b. Marriages;
c. Deaths;
d. Legal separation;

e. Judgments of annulments of marriage;


f. Judgments declaring marriages void from
the beginning;
g. Legitimations;
h. Adoptions;
i. Acknowledgments of natural children;
j. Naturalization;
k. Election, loss or recovery of citizenship;
l. Civil Interdiction;
m. Judicial determination of filiation;
n. Voluntary emancipation of a minor; and
o. Changes of name
BAR QUESTION (2007)
B files a petition for cancellation of
the birth certificate of her daughter R on the
ground of the falsified material entries
therein made by Bs husband as the
informant. The RTC sets the case for hearing
and directs the publication of the order for
hearing and directs the publication of the
order once a week for three consecutive
weeks in a newspaper of general circulation.
Summons was service on the Civil Registrar
but there was no appearance during the
hearing. The RTC granted the petition. R
filed a petition for annulment of judgment
before the Court of Appeals, saying that she
was not notified of the petition and hence,
the decision was issued in violation of due
process. B opposed saying that the
publication of the court order was sufficient
compliance with due process. Rule.
SUGGESTED ANSWER: Rs petition for
annulment of judgment before the Court
of Appeals should be granted. Although
there was publication of the court order
acting the petition to cancel the birth
certificate, reasonable notice still has
to be served on R as she has an interest
affected by the cancellation. She is an
indispensable party, and notice has to
be served on her, not for the purpose of
vesting the court with jurisdiction, but
to comply with the requirements of fair
play and due process.

Note: Rule 108 should be correlated with


Republic Act No. 9048 or the Clerical Error
Act which was passed by Congress on
February 8, 2001.
The Office of Civil Registrar General
promulgated Administrative Order No. 1,
Series of 2012 to implement the provisions
of Republic Act No. 10172.

Under R.A. No. 9048, the city or municipal


civil registrar or consul general, as the case
may be, is now authorized to effect the
change of first name or nickname and the
correction of clerical or typographical errors
in civil registry entries. Under said law,
jurisdiction over applications for change of
first name is now primarily lodged with
administrative officers. The law now
excludes the change of first name from the
coverage of Rules 103 until and unless an
administrative petition for change of name
is first filed and subsequently denied and
removes correction or changing of clerical
errors in entries of the civil register from
the ambit of Rule 108. Hence, what is left
for the scope of operation of the rules are
substantial changes and corrections in
entries of the civil register. (Republic v.
Mercadera, G.R. No. 186027, December 8,
2010)

BAR QUESTION (2008)


Gianna was born to Andy and
Aimee, who at the time Gianna's birth were
not married to each other. While Andy was
single at the time, Aimee was still in the
process of securing a judicial declaration of
nullity on her marriage to her ex-husband.
Gianna's birth certificate, which was signed
by both Andy and Aimee, registered the
status of Gianna as "legitimate", her
surname carrying that of Andy's and that

her parents were married to each other.


(A) Can a judicial action for correction of
entries in Gianna's birth certificate be
successfully maintained to: a) Change her
status from "legitimate" to "illegitimate";
and b) Change her surname from that of
Andy's to Aimee's maiden surname?
(B) Instead of a judicial action, can
administrative proceedings be brought for
the purpose of making the above
corrections?
SUGGESTED ANSWER:
(A) Yes, a judicial action for correction of
entries in Gianna's birth certificate can
be successfully maintained to change (a)
her
status
from
"legitimate"
to
"illegitimate," and (b) her surname from
that of Andy's to Aimee's maiden
surname in accordance with Rule 108 of
the Rules of Court because said changes
are substantive corrections.
(B) No. An administrative proceeding
cannot be brought for the purpose of
making the above corrections. R.A.
9048, otherwise known as the Clerical
Error Act, which authorizes the city or
municipal civil registrar or the consul
general to correct a clerical or
typographical error in an entry and/or
change the first name or nickname in
the civil register without need of a
judicial order. Errors that involve the
change of nationality, age, status,
surname or sex of petitioner are not
included from the coverage of the said
Act.
Under Rep. Act No. 9048, a correction in
the civil registry involving the change of sex
is not a mere clerical or typographical error.
It is a substantial change for which the

applicable procedure is Rule 108 of the


Rules of Court.

Republic Act No. 10172 amended Sections


1, 2, 5 and 8 of Republic Act No. 9048.
(Administrative Order No. 1, Series of 2012)

R.A. 9048

R.A. 10172

Case covered:

Cases covered:

clerical or
typographical
errors and change
of first name or
nickname (Sec. 1)

clerical or
typographical errors
and change of first
name or nickname,
the day and month in
the date of birth or
sex of a person where
it is patently clear
that there was a
clerical or
typographical error or
mistake in the entry
(Sec. 1)
Definition of Clerical
or Typographical
Error

Definition of
Clerical or
Typographical
Error
a mistake
committed in the
performance of
clerical work in
writing, copying,
transcribing or
typing an entry in
the civil register
that is harmless
and innocuous,
such as misspelled
name or
misspelled place of
birth or the like,
which is visible to
the eyes or obvious
to the

a mistake committed
in the performance of
clerical work in
writing, copying,
transcribing or
typing an entry in
the civil register on
the entry of day and
month in the date of
birth or the sex of
the person, which is
visible to the eyes or
obvious to the
understanding, and
can be corrected or
changed only by
reference to other
existing record or

understanding,
and can be
corrected or
changed only by
reference to other
existing record or
records: Provided,
however, That no
correction must
involve the change
of nationality, age,
status or sex of the
petitioner. (Sec. 2)

records: Provided,
however, that no
correction must
involve the change of
nationality, age
(refers to the
correction on the
year of birth), or
legitimacy status of
the
petitioner/document
owner. (Sec. 2)

RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which appeals
may be taken (Rule 109, Sec. 1)

1. If it allows or disallows a will;


2. If it determines who are the lawful
heirs of a deceased person, or the
distributive share of the estate to
which such person is entitled;
3. If it allows or disallows, in whole or
in part, any claim against the estate
of a deceased person, or any claim
presented on behalf of the estate in
offset to a claim against it;
4. If it settles the account of an
executor, administrator, trustee or
guardian;
5. If it constitutes a final determination
in the lower court of the rights of
the party appealing in proceedings
relating to the settlement of the
estate of a deceased person or the
administration of a trustee or
guardian.

Exception: Appointment of a special


administrator is not appealable
Remedy: Petition for certiorari under
Rule 65, if there is grave abuse of
discretion.
6. If it is the final order or judgment
rendered in the case, and affects the
substantial rights of the person
appealing.
Exception:
Orders
granting
or
denying a Motion for a New Trial or
Motion for Reconsideration.
Orders that are not appealable:

1. Order directing the administrator to


take action to recover an amount
due to the estate (Frankel vs.
Webber, G.R. No. 38637, December
21, 1932);
2.
Order made in administration
proceedings relating to the inclusion
or exclusion of items of property in
the inventory of executor or
administrator (Gregorie vs. Baker,
G.R. No. 27486, November 18,
1927);
3. Order
appointing
a
special
administrator (Rule 109, Section
1[e]); and
4. Order granting or denying a motion
for new trial or for reconsideration.

A record on appeal in addition to the


notice of appeal is thus required to be
filed as the original records of the case
should remain with the trial courtto enable
the rest of the case to proceed in the event
that a separate and distinct issue is
resolved by said court and held to be final.

The filing of a record on appeal was not


necessary since no other matter remained
to be heard and determined by the trial
court
after
it issued
the
appealed
order granting respondents petition for
cancellation of birth record and change of
surname in the civil registry. (Republic of
the Philippines v. Nishina, G.R. No. 186053,
November 15, 2010).

MODES OF APPEAL
1. Ordinary appeal
The appeal to the CA in
cases decided by the RTC in the
exercise of its original jurisdiction
shall be taken by filing a notice of
appeal with the court which
rendered the judgment or final order
appealed from and serving a copy
thereof upon the adverse party. No
record on appeal shall be required
except in special proceedings and
other cases of multiple or separate
appeals where the law or the Rules
so require. In such cases, the record
on appeal shall be filed and served
in like manner.
2. Petition for review.
The appeal to the CA in
cases decided by the RTC in the
exercise of its appellate jurisdiction
shall be by petition for review in
accordance with Rule 42.
3. Petition for review on certiorari
In all cases where only
questions of law are raised or
involved, the appeal shall be to the
SC by petition for review on
certiorari in accordance with Rule
45.

Q: Who may appeal?

A: An interested person may appeal in


special proceedings from an order or
judgment rendered by a RTC or Family
Court.
An interested person whose interest must
be material and direct, not merely indirect
or contingent (Teotico v. De Vat, G.R. No. L18753, March 26, 1965).
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).
Rule on Advance Distribution

Notwithstanding a pending controversy or


appeal in proceedings to settle the estate of
a decedent, the court may, in its discretion
and upon such terms as it may deem
proper and just, permit that such part of
the estate may not be affected by the
controversy or appeal be distributed among
the heirs or legatees, upon compliance with
the conditions set forth in Rule 90 of this
rules (Section 2, Rule 109).

PERIOD
Special
Proceedings
Habeas
Corpus
Writ of
Amparo
Writ of
Habeas Data

FOR APPEAL
30 days (Record on
Appeal required)
48 hours from
service of judgment
5 working days from
date of notice of
judgment
5 working days from
date of notice of
judgment

EXECUTOR/ADMINISTRATOR

TRUSTEE

GUARDIAN

Accounts are NOT underoath


and
except
forinitial
and
finalsubmission
of
accounts;they shall be filed
only atsuch times as may
beREQUIRED by the court.

Accounts must beUNDER


OATH andfiled ANNUALLY.

Accounts must be UNDER


OATH and filed ANNUALLY.

Court that hasjurisdiction may


be MTCor RTC.

Court which hasjurisdiction


is
RTC
ifappointed
to
carryinto effect provisionsof a
will; if trusteedies, resigns
orremoved in acontractual
trust, RTChas jurisdiction in
theappointment
of
newtrustee.

Court which has jurisdiction


is RTC (incompetent) or
FAMILY COURTS (minors).

May sell, encumber ormortgage


property if it isnecessary for
thepurpose
of
paying
debts,expenses
ofadministration orlegacies, or
for
thepreservation
of
propertyor
if
sale
will
bebeneficial to heirs,legatees or
devisees. (Upon APPLICATION
tothe
court
with
written
NOTICE to the heirs.)

May
sell
or
encumberproperty
of
estateheld
in
trust
ifnecessary orexpedient upon
ORDER of the court.

May
sell
or
encumber
property of ward if income of
estate is insufficient to
maintain ward and his
family and educate ward or
the sale or encumbrance is
for the benefit of ward upon
order of the court.

Order of sale has NO TIME


LIMIT.

Order of sale has NOTIME


LIMIT.

Order of sale is valid only for


ONE
(1)
YEAR
AFTER
GRANT of the same.

Appointed by the courtto


SETTLE estate ofdecedent.

Appointed to CARRYINTO
EFFECT theprovisions of a
will
(testamentary
trust)
orwritten
instrument
(contractual trust).

Appointed as guardian.

NOT

May

MUST ALWAYS file a bond.

EXEMPTED

fromfiling

be

EXEMPTEDfrom

bond even if such exemption is


provided inthe will (bond is
onlyconditioned uponpayment
of debts).

filing bond ifprovided in the


will
orif
beneficiaries
requestedexemption.

Services
of
executor
oradministrator areterminated
UPON

Trusteeship is terminated
uponTURNING
OVER
THEPROPERTY to

PAYMENT OF DEBTS of the


estate and distribution of
property to heirs.

Beneficiary after expiration of


trust (period may be provided
for in the will or trust
contract).

MUST PAY the debts of the


estate.

NO OBLIGATION topay debts


ofbeneficiary or trustor.

Guardianship is terminated
upon attainment of age of
majority of the minor or
upon gaining competency in
the case of an incompetent
(need court order for the
latter).
MUST PAY the debts of the
ward.

TRUSTEE AS DISTINGUISHED FROMEXECUTOR/ADMINISTRATOR AND GUARDIAN


DISTINCTION BETWEEN WRITS OF HABEAS CORPUS, AMPARO AND DATA

Date of
effectivity
Definition

WRIT OF HABEAS
CORPUS
Rule 102
July 1, 1997
A command directed to
the person detaining
another, requiring him
to produce the body of
the person detained at
a designated time and
place, and to produce
and to show cause and
to explain the reason
for detention.

WRIT OF AMPARO
A.M. No. 07-9-12-SC
October 24, 2007
A remedy available to
any
person whose right to
life,
liberty
and
security is violated or
threatened
with
violation
by
an
unlawful
act
or
omission of a public
official or employee, or
of a private individual
or entity (Sec. 1).

WRIT OF HABEAS
DATA
A.M. No. 08-1-16-SC
February 2, 2008
A remedy available to
any
person
whose
right to privacy in life,
liberty or security is
violated or threatened
by an unlawful act or
omission of a public
official or employee, or
of a private individual
or entity engaged in
the
gathering,
collecting or storing of
data or information
regarding the person,
family,
home
and
correspondence of the
aggrieved party (Sec.
1).

Rights
violated

There is an actual
violation
of
the
aggrieved partys right.

There is an actual or
threatened violation of
the aggrieved partys
right.

There is an actual or
threatened violation of
the aggrieved partys
right.

Limitations

May be suspended in
cases of
invasion or rebellion
when public
safety requires it(Art.
III Sec. 15, 1987
Constitution).
The writ shall extend to
all cases of illegal
confinement
or
detention by which any
person is deprived of
his liberty, or by which
the rightful custody of
any person is withheld
from
the
person
entitled thereto (Sec.
1).

Shall not diminish,


increase or modify
substantive
rights
(Sec. 23).

Shall not diminish,


increase or modify
substantive rights
(Sec. 23).

The writ shall cover


extralegal killings and
enforced
disappearances
or
threats thereof (Sec.1).

If granted by SC or CA:
enforceable anywhere
In the Philippines;
If granted by RTC:
enforceable only within
the judicial district
(Sec. 2).
By the person
unlawfully
imprisoned or
restrained of his
liberty, or by some
other person in his
behalf, or by the
person entitled to the
lawful custody over
another
(Villaviciencio v.
Lukban, G.R. No. L-

Enforceable anywhere
in the Philippines (Sec.
3)

1. To all cases of
violation or threat to
the privacy of a
person, his family,
home and
correspondence
2. To all habeas corpus
and amparo cases. (It
complements the two
writs by helping
produce or correct
data that is
relevant to protect the
rights of a person who
disappeared or is a
victim
of extrajudicial killing)
Enforceable anywhere
in the Philippines (Sec.
4).

Scope

Enforceabilit
y of the writ

Who may file

The petition may be


filed by the aggrieved
party or by any
qualified person or
entity IN THE
FOLLOWING ORDER:
1. Any member of the
immediate family,
namely: the spouse,
children and parents
of the aggrieved party;

1. Any aggrieved party.


2. In cases of
extralegal killings and
enforced
disappearances, the
petition may be filed
by:
(a) Any member of the
immediate family of
the aggrieved party,
namely:
the spouse, children

14639
25, 1919)

March

Where to file1. Regional Trial Court


2. MTC OR FIRST LEVEL
COURTS in
the absence of RTC
judges in a judicial
region (Sec. 35 BP
129)
3. Sandiganbayan, in aid
of its appellate
jurisdiction
4. Court of Appeals or
any member thereof
5. Supreme Court or
any member thereof

Where
returnable

If granted by the:
1. SC or CA or any
member of such
courts:
a. before the
court
or
any
member

2. Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity, in default of
those mentioned in the
preceding paragraph;
or
3. Any concerned
citizen, organization,
association or
institution, if there is
no known member of
the immediate family
or relative of the
aggrieved party (Sec.
2).
The petition may be
filed on ANY DAY and
at ANY TIME with:
1. RTC of the place
where the
threat, act or omission
was
committed or any of its
elements occurred.
2. Sandiganbayan,
3. CA or any of its
Justices
4. SC or any of its
Justices
(Sec. 3)

If granted by the:
1. SC or any of its
justices:
a. before such
court
or
any justice
thereof; or
b.
before the

and parents; or
(b) Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity, in default of
those mentioned in the
preceding paragraph
(Sec. 2).

1. RTC where the


petitioner
or respondent resides,
or
that which has
jurisdiction
over the place where
the
data or information is
gathered, collected or
stored, at the option of
the
petitioner.
2. SC or the CA or the
Sandiganbayan when
the
action concerns public
data files of
government offices
(Sec. 3).
If issued by the:
1. SC or any of its
justices:
a. before such
Court
or
any justice
thereof; or
b. CA or SB or

Respondent

thereof; or
b. before
an
RTC or any
judge
thereof.
2. RTC judge or a
judge thereof
a.
it
is
returnable
before
himself
(Sec. 2).

SB or CA or
any of their
justices; or
c. to any RTC
of the place
where the
threat, act
or omission
was
committed
or any of its
elements
occurred
2. SB or CA or
any of their
justices:
a. before such
court
or
any justice
thereof; or
b. to any RTC
of the place
where the
threat, act,
or omission
was
committed
or any of its
elements
occurred
3. RTC or any
judge thereof
a. before such
court or
judge. [Sec.
3]

Respondent may or
may not be an officer

Respondent is a public
official or employee or

any of its
justices; or
c. the RTC of
the
place
where the
petitioner
or
respondent
resides/has
jurisdiction
over
the
place where
the data or
information
is gathered,
stored
or
collected
2. CA or SB or
any
of
its
justices:
a. before such
court
or
any justice
thereof, or
the RTC of
the
place
where the
petitioner
or
respondent
resides, or
that which
has
jurisdiction
over
the
place where
the data or
information
is gathered,
collected or
stored.
3. RTC
a. before such
court
or
judge (Sec.
4)
Respondent is a public
official or employee or

a private individual or
entity (Sec. 1)

Contents of
the signed
and verified
petition

Application for the writ


shall be by petition
signed and verified
either by the party for
whose
relief
it
is
intended, or by some
person
on his behalf, and shall
set forth:
1. That the person
in whose behalf
the application
is
made
is
imprisoned or
restrained
of
his liberty;
2.
The officer or
name of the
person
by
whom he is so
imprisoned or
restrained; or, if
both
are
unknown
or
uncertain, such
officer
or
person may be
described by an
assumed
appellation, and
the person who
is served with
the writ shall
be deemed the
person
intended;
3. The place where
he
is
so

1. The
personal
circumstances
of
the
petitioner;
2. The name and
personal
circumstances
of
the
respondent
responsible for
the threat, act
or omission, or,
if the name is
unknown
or
uncertain, the
respondent
may
be
described by an
assumed
appellation;
3. The right to
life, liberty and
security of the
aggrieved party
violated
or
threatened
with violation
by an unlawful
act or omission
of
the
respondent,
and how such
threat
or
violation
is
committed with
the attendant
circumstances
detailed
in

a private individual or
entity engaged in the
gathering, collecting,
or storing of data or
information regarding
the
person,
family
name
and
correspondence of the
aggrieved party (Sec.
1).
1. Personal
circumstances
of
the
petitioner and
the respondent;
2. The
manner
the right of
privacy
is
violated
or
threatened and
how it affects
the right to life,
liberty
or
security of the
aggrieved
party;
3. Actions
and
recourses
taken by the
petitioner
to
secure the data
or information;
4. The location of
the
files,
registers
or
databases, the
government
office, and the
person
in
charge,
in
possession or
in control of
the data or
information, if
known;
5. The
reliefs
prayed
for,
which
may

imprisoned or
restrained,
if
known;
4. A copy of the
commitment or
cause
of
detention
of
such person, if
it
can
be
procured
without
impairing
the
efficiency of the
remedy; or, if
the
imprisonment
or restraint is
without
any
legal authority,
such fact shall
appear (Sec. 3).

Appeal

Quantum of

Within 48 hours from


notice of the judgment
or final order appealed
from.
Clear and convincing

supporting
affidavits;
4. The
investigation
conducted,
if
any, specifying
the
names,
personal
circumstances,
and addresses
of
the
investigating
authority
or
individuals, as
well
as
the
manner
and
conduct of the
investigation,
together
with
any report;
5. The
actions
and recourses
taken by the
petitioner
to
determine the
fate
or
whereabouts of
the
aggrieved
party and the
identity of the
person
responsible for
the threat, act
or
omission;
and
6. The
relief
prayed for the
petition
may
include
a
general prayer
for other just
and equitable
reliefs (Sec. 5).
Five (5) working days
from the date of notice
of
the
adverse
judgment (Sec. 19).
Substantial
evidence

include
the
updating,
rectification,
suppression or
destruction of
the database or
information or
files kept by the
respondent.
In
case
of
threats,
the
relief
may
include
a
prayer for an
order enjoining
the
act
complained of;
and
6. Such
other
relevant reliefs
as are just and
equitable (Sec.
6).

Five (5) working days


from the date of notice
of the judgment or
final order (sec. 19).
Substantial
evidence

proof

Name of Law

Subject Matter

Who may File

Venue

Grounds

evidence

(Sec. 17).

Rule 103
Change of name

Change of full name


(substantial corrections)

(Sec. 16).

Rule 108
Cancellation/Correction
of Entries in the Civil
Registry
Change or corrections in
the civil entries
(substantial corrections)

A person desiring to
change his name. (Sec.
1)

Any person interested in


any act, event, order or
decree concerning the
civil status of persons
which has been recorded
in the civil register. (Sec.
1)

RTC of the province in


which petitioner reside
for 3 years prior to filing,
or, in the City of Manila,
to the Juvenile and
Domestic Relations
Court. (Family Court?)

RTC of city or province


where the corresponding
civil registry is located.

1. Name is
ridiculous,
tainted with
dishonor and
extremely
difficult to write

Upon good and valid


grounds, the following
entries in the civil
register may be cancelled
or corrected.

R.A. 9048
Clerical Error Act

Change of first name


and nickname and
civil entries (only
typographical or
clerical errors)
Any person having
direct and personal
interest in the
correction of a clerical
or typographical error
in an entry and/or
change of first name
or nickname. (Sec. 3)
1. Local civil
registry office
of the city or
municipality
where the
record being
sought to be
corrected or
changed is
kept;
2. Local civil
registrar of the
place where
the interested
party is
presently
residing or
domiciled;
3. Philippine
Consulates.
1. The petitioner
finds the first
name or
nickname to
be ridiculous,
tainted with

2.
3.
4.

5.

or pronounce;
Consequence of
change of status;
Necessity to avoid
confusion;
Having
continuously
used and been
known since
childhood by a
Filipino name,
unaware of her
alien parent-age;
A sincere desire
to adopt a
Filipino name to
erase signs of
former alienage
all in good faith
and without
prejudicing
anybody.

What kind of
proceeding

Judicial proceeding

What to file

File a signed and verified


petition.

Notice and
publication

At least once a week for


three consecutive weeks
in some newspaper
circulation (notice of
hearing)
No posting

At least once a week for


three consecutive weeks
in some newspaper
circulation (notice of
hearing)
No posting

The SG or the proper


provincial or city fiscal

The Civil Registrar.

Posting

Who

Summary proceeding
This can be concerted to
an adversarial
proceeding if there are
substantial changes and
affect the status of an
individual.
File a verified petition for
the cancellation or
correction of any entry.

dishonor or
extremely
difficult to
write or
pronounce;
2. The new first
name or
nickname has
been
habitually and
continuously
used by the
petitioner and
he has been
publicly
known by that
by that first
name or
nickname in
the
community; or
3. The change
will avoid
confusion.
(Sec. 4)
Administrative
proceeding.

File an affidavit

At least once a week


for two consecutive
weeks (publish the
whole affidavit)
Duty of the civil
registrar or Consul to
post the petition in a
conspicuous place for
10 consecutive days.
The Civil-Registrar or
the Consul.

participates on
the part of the
Government

shall appear on behalf of


the Republic

Where to
appeal

Appeal decision with the


CA.

Appeal decision with the


CA.

Appeal decision to the


Civil Registrar
General (head of
NCSO).

SPECIAL LAWS

Revised Rules on Summary Procedure


En Banc Resolution dated October
15, 1991Effective November 15,
1991
Scope (Sec.1)
This rule shall govern the summary
procedure in:
1. Metropolitan Trial Courts,
2. Municipal Trial Courts in Cities,
3. Municipal Trial Courts, and
4. Municipal Circuit Trial Courts ASES C
CASES COVERED
Civil Cases:
3.
All cases of forcible entry
and unlawful detainer, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered; but attorney's fees shall
not exceed P20,000.00.
4.

All
other
civil
cases,
EXCEPT
probate
proceedings,
where the total amount of the
plaintiff's claim does not exceed
P100, 000.00 or P200,000.00 in
Metro Manila, exclusive of interest
and costs.
(as amended by A.M. 02-11-09-SC,
effective November 25, 2002)

D. Criminal Cases: (DORMuT)


6. Violations of traffic laws,
rules and regulations;
7.
Violations of the rental law;
8.
Violations of Municipal or
city ordinances;
9.
All other criminal cases
where the penalty prescribed by
law for the offense charged is
imprisonment not exceeding 6
months, or a fine not exceeding

P1,000.00, or both, irrespective of


other imposable penalties,
10.
Offenses involving damage
to property through criminal
negligence, this Rule shall govern
where the imposable fine does not
exceed P10,000.00
This Rule shall not apply to a civil case
where the plaintiffs cause of action is
pleaded in the same complaint with
another cause of action subject to the
ordinary procedure; nor to a criminal
case where the offense charged is
necessarily related to another criminal
case subject to the ordinary procedure.
CIVIL CASES
In civil cases, there shall be a preliminary
conference held but there shall be no
trial. Instead the parties shall submit
affidavits and position papers (Riano,
2007) .
Sec. 3. The only pleadings allowed to
be filed are: (C3A)
1. complaints,
2. compulsory counterclaim,
3. cross-claim, and
4. answers thereto.
NOTE: All pleadings shall be verified.
Sec. 4. Duty of court. After the court
determines that the case falls under
summary procedure, dismissthe case
outright on any of the grounds apparent
therefrom for the dismissal of a civil
action.
If no ground for dismissal is found it shall
issuesummons which shall state that the
summaryprocedure shall apply.

Sec. 5. Answer

Within 10 days from service of summons,


the defendant shall file his answer to the
complaint.
Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for lack of jurisdiction over the
subject
matter.
Crossclaims
and
compulsory counterclaims not asserted in
the answer shall be considered barred.
The answer to counterclaims or crossclaims shall be filed and served within 10
days from service of the answer in which
they are pleaded.
EFFECT OF FAILURE TO ANSWER
Should the defendant fail to answer the
complaint, the court, motu proprio, or on
motion of the plaintiff, shall render
judgment as may be warranted by the
facts alleged in the complaint and limited
to what is prayed for.

PRELIMINARY CONFERENCE
MANDATORY
Not later than 30 days after the last
answer is filed, a preliminary conference
SHALL be held. The rules on pre-trial
(Rule 18, ROC) in ordinary cases shall be
applicable to the preliminary conference
UNLESS inconsistent with the provision
of this rule.

preliminary conference under this Rule is


akin and similar to a pre-trial under Rule
20, both provisions being essentially
designed to promote amicable settlement
or to simplify the trial. Proceedings
conducted without pre-trial or a legally
defective pre-trial have been voided
because either of the parties thereto
suffered substantial prejudice thereby or
were denied due process.
Thus, unless there is showing of
substantial prejudice caused to a party,
the inadvertent failure to calendar for and
conduct a pre-trial or preliminary
conference cannot render the proceedings
illegal or void ab initio. A partys failure to
object to the absence of a preliminary
conference, despite opportunity to do so,
is deemed a waiver of the right thereto,
especially where the party had already
submitted to the jurisdiction of the trial
court (Regalado, 10thEd.,citing Martinez, et
al. vs. De la Merced, et al., G.R. No. 82039,
June 20, 1989).
APPEARANCE OF PARTIES
Failure of the plaintiff to appear in the
preliminary conference shall be a cause
for the dismissal of his complaint. The
defendant whoappears in the absence of
the plaintiff shall be entitled to judgment
on his counterclaim in accordance with
Sec. 6 hereof.
All cross-claims shall be dismissed.

Effect of Absence of Preliminary


Conference inSummary Procedure;
Exception
While Sec. 6 (now Sec. 7) of the Rule on
Summary Procedure makes a preliminary
conference mandatory, it does not
logically follow that the absence thereof
would necessarily render nugatory the
proceedings had in the court below. A

If a sole defendant failed to appear, the


plaintiff shall be entitled to judgment in
accordance with Sec. 6. This Rule shall
not apply where one of 2 or more
defendants sued under a common cause
of action who had pleaded a common
defense shall appear at the preliminary
conference.

Record of Preliminary Conference


Within 5 days after the termination of the
preliminary conference, the court shall
issue an order stating the matters taken
up therein,including but not limited to:
(JAMOS)
1. Whether the parties have arrived
at an amicable settlement, and if
so, the termsthereof;
2. The stipulations or admissions
entered into by the parties;
3. Whether, on the basis of the
pleadings and the stipulations and
admissions made by the parties,
judgment
may
be
rendered
without the need of further
proceedings, in which event the
judgment shall be rendered within
30 days from issuance of the
order;
4. A clear specification of material
facts which remain controverted;
and
5. Other matters intended to expedite
thedisposition of the case. (Sec. 8)

require the parties to submit affidavits or


other evidence on the said matters within
10 days from receipt of said order.
Judgment shall be rendered within 15
days after the receipt of the last
clarificatory affidavits, or the expiration of
the period for filing the same.
CRIMINAL CASES
How Commenced
(Sec. 11)
The filing of criminal cases falling within
the scope of this Rule shall be either (1)
by complaint or (2) by information:
Provided, however, that in Metro Manila
and in Chartered Cities, such cases shall
be commenced only by information,
except when the offense cannot be
prosecuted de oficio.
The complaint or information shall be
accompanied by the affidavits of the
complainant and of his witnesses in such
number of copies as there are accused
plus 2 copies for the court's files. If this
requirement is not complied with within
five (5) days from date of filing, the case
may be dismissed.

Rendition of Judgment

Duty of Court

(Sec. 10)
Within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the
same, the court shall renderjudgment.

(Sec. 12)
a. If commenced by compliant. On the
basis

of

the

compliant

and

the

affidavits and other evidence, the


court may dismiss the case outright
for being patently without basis or

Submission of Clarificatory Affidavits


Should the court find it necessary to
clarify certain material facts, it may,
during the said period, issue an order
specifying the matters to be clarified, and

merit and order the release of the


accused if in custody.
b. If commenced by information.
When the case is commenced by
information, or is not dismissed

pursuant to the next preceding


paragraph, the court shall issue an
order which, together with copies of
the affidavits and other evidence
submitted by the prosecution, shall
require the accused to submit his
counter-affidavit and the affidavits
of his witnesses as well as evidence
in his behalf, serving copies thereof
on the complainant or prosecutor not
later than 10 days from receipt of said
order.
The prosecution may file reply affidavits
within 10 days after receipt of the
counter-affidavits of the defense.
Arraignment and Trial
(Sec. 13))
Should the court, upon a consideration of
the complaint or information and the
affidavits submitted by both parties, find
no cause or ground to hold the accused
for trial, it shall order the dismissal of the
case; otherwise, the court shall set the
case for arraignment and trial.
If the accused is in custody for the crime
charged, he shall be immediately
arraigned and if he enters a plea of guilty,
he shall forthwith be sentenced.

Preliminary Conference: MANDATORY


Before trial, the court SHALL call the
parties to a preliminary conference during
which:
a. A stipulation of facts may be

However, no admission by the accused


shall be used against him unless reduced
to writing and signed by the accused and
his counsel.
A refusal or failure to stipulate shall not
prejudice the accused (Sec. 14).

Procedure of Trial
(Sec. 15)
At the trial, the affidavits submitted by
the parties shall constitute the direct
testimonies of the witnesses who
executed the same.
NOTE: Witnesses who testified may be
subjected to cross-examination, redirect
or re-cross examination.

Should the affiant fail to testify, his


affidavit shall not be considered as
competent
evidence
for
the
party
presenting the affidavit, but the adverse
party may utilize the same for any
admissible purpose.
Except in rebuttal or surrebuttal, no
witness shall be allowed to testify unless
his affidavit was previously submitted to
the court in accordance with Sec. 12.

entered into, or
b. The

propriety

of

allowing

the

accused to enter a plea of guilty to


a

lesser

offense

may

be

considered, or
c. Such other matters may be taken
up to clarify the issues.

Presentation of Additional Affidavits


However, should a party desire to present
additional affidavits or counter-affidavits
as part of his direct evidence, he shall so
manifest
during
the
preliminary
conference, stating the purpose thereof. If
allowed by the court, the additional

affidavits of the prosecution or the


counter-affidavits of the defense shall be
submitted to the court and served on the
adverse party not later than 3 days after
the termination of the preliminary
conference.

Exception:
This provision shall not apply to criminal
cases where the accused was arrested
without a warrant (Sec.18).

If the additional affidavits are presented


by the prosecution, the accused may file
counter-affidavits and serve the same on
the prosecution within 3 days from such
service.

PROHIBITED
PLEADINGS
AND
MOTIONS
(Di MO5 TRIP2 Memo) / (6M [dbp red]
TM PIRC)

Arrest of Accused
The court shall not order the arrest of the
accused except for failure to appear
whenever required.

Motion to dismiss the complaint or to


quash the complaint or information
EXCEPT on the ground of (1) lack of
jurisdiction over the subject matter, or (2)
failure to comply with the Barangay
conciliation proceedings;
a. Motion to dismiss the complaint or
to

Release of the person arrested shall either


be on bail or on recognizance by a
responsible citizen acceptable to the court
(Sec. 16) .

quash

information

the

complaint

EXCEPT

on

or
the

ground of (1) lack of jurisdiction


over the subject matter, or (2)
failure

to

comply

with

the

Barangay conciliation proceedings;

Judgment
(Sec. 17)

b. Motion for a bill of particulars;

Where a trial has been conducted, the


court shall promulgate the judgment not
later than 30 days after the termination of
trial.

c. Motion

for

new

trial,

or

for

reconsideration of a judgment, or
for opening of trial;
d. Petition for relief from judgment;

COMMON PROVISIONS
COURT
MAY
DISMISS
OUTRIGHT:

CASES

General rule:
Cases requiring referral to the Lupon for
conciliation under P.D. No. 1508 where
there is no showing of compliance with
such requirement, shall be dismissed
without prejudice and may be revived
only after such requirement shall have
been complied with.

e. Motion for extension of time to file


pleadings, affidavits, etc.
f.

Memoranda;

g. Petition for certiorari, mandamus,


or

prohibition

against

any

interlocutory order issued by the


court;
h. Motion to declare the defendant in
default;

i.

Dilatory

motions

for

postponement;
j.

Reply;

k. Third party complaints;


l.

Interventions (Sec. 19).

The Motion for Reconsideration prohibited


under Sec. 19 of the Revised Rules on
Summary Procedure is that which seeks
reconsideration of the judgment rendered
by the court after trial on the merits of
the case. Here, the order of dismissal
issued by respondent judge due to failure
of a party to appear during the
preliminary conference is obviously not a
judgment on the merits after trial. Hence,
a motion for a reconsideration of such
order is not the prohibited pleading
contemplated under Sec. 19 (c) of the
Rule on Summary Procedure (Lucas
v.Fabros, A.M. No. MTJ-99-1226, January
31, 2000).
The rule on prohibited pleadings in
summary procedure is applicable only to
the Metropolitan and Municipal Trial
Courts (Jakihaca v. Aquino, 12January
1990).

Q: A filed an action for forcible entry


against B in the MTC. The summons
stating that the Rules on Summary
Procedure shall apply was served on B.
B filed his answer within 10 days from
service of summons. Thereafter, B filed
a motion to dismiss alleging the failure
of the complaint to state a cause of
action. Is the motion to dismiss filed
by B a prohibited pleading under the
Rules of Summary Procedure? (2003
Bar Question)

A: No. Although a motion to dismiss is a


prohibited, its filing after the answer had
already
been
submitted
does
not
constitute a prohibited pleading. What the
rules proscribe is a motion to dismiss
that would stop the running of the period
to file an answer and cause undue delay.
Here, the motion to dismiss was filed after
an answer had already been submitted by
B within the reglementary period. Hence,
the motion to dismiss filed by B is not a
prohibited pleading.
Sec. 21. Appeal. The judgment or final
order shall be appealable to the
appropriate RTC which shall decide the
same. The decision of the RTC in civil
cases
governed
by
this
Rule,
includingforcible entry and unlawful
detainer,
shall
be
immediately
executory, without prejudice to afurther
appeal that may be taken.

NOTE: Section 10 of Rule 70 shall be


deemedrepealed.
The regular procedure prescribed in the
Rules ofCourt shall apply to the special
cases herein provided for in a suppletory
capacity.

SUMMARY PROCEDURE IN CIVIL CASES


Filing of Complaint
Court shall dismiss the case
outright, if the case is not covered by
RSP

Court will issue summons stating


RSP will apply

Within 10 days from service of


summons, defendant shall file his
Answer

In case of failure to file an Answer, the


court, motu proprio, or on motion of
the plaintiff, shall render judgment

Plaintiff shall file his Answer to


counterclaims/ cross-claims
within 10 days from service of the
Answer in which they are pleaded
Not later than 30 days after the
last answer is filed, a preliminary
conference shall be held

If plaintiff failed to appear,


the case shall be dismissed

Within 5 days after preliminary


conference, the court shall issue
an order on matters taken up in
preliminary conference

Court shall render judgment


on counterclaim of defendant
who appeared

Within 10 days from receipt of the


order, parties shall submit
affidavits of witnesses and
position paper

If sole defendant failed to


appear, court shall render
judgment

Within 30 days after receipt of the


last affidavits and position papers,
or the expiration of the period for

filing the same, the court


shall render judgment
Court may issue a
Clarificatory order requiring

the parties to
submit affidavits
or other evidence
w/in 10 days from
receipt of said
order

Within 15 days after receipt of last


clarificatory affidavits, or the
expiration of the period for filing
the same, judgment shall

SUMMARY PROCEDURE IN CRIMINAL CASES


Filing of verified complaint/ information
with affidavits of complainant & witnesses

Court shall dismiss


outright

Court shall issue Order requiring


the accused to submit counteraffidavit &affidavits of witness
Within 10 days from receipt of said
order, accused shall submit counteraffidavit & affidavits of witnesses.
Within 10 days after receipt of
counter-affidavits, prosecution
may file reply affidavits

Court shall dismiss


the case

The court shall set the case for


arraignment and trial

Before trial, a preliminary


conference shall be held

A party may present additional affidavits, if


allowed by the court, nor later than 3 days
after termination of preliminary conference

If additional affidavits are presented


by prosecution, accused may file
counter-affidavits within 3 days
from service affidavits
Trial Proper
Not later than 30 days after trial,
court shall promulgate the judgment

The Katarungang Pambarangay


Local Government Codeon Conciliation
Procedures
(Book III, Title I, Chapter VII)

attested to by the Lupon or Pangkat


Chairman or unless the settlement has
been repudiated by the parties thereto.

Q: What is the object of the Katarungang

Parties: Only individuals shall be parties


either ascomplainants or respondents.
Juridical personscannot be parties.

Pambarangay Law? (1999 Bar Question)


A: Its object is to effect an amicable
settlement ofdisputes among family and
barangay members at the barangay level
without judicial recourse and consequently
help relieve the courts of docket congestion
(Preamble of PD 1508, the former andthe
first Katarungang Pambarangay Law).
The
proceedings
before
the
LupongTagapamayapa or Pangkat ng
Tagapagkasundo
are
not
judicial
proceedings. Legally, there is no Barangay
court. The Lupon and Pangkat only resolve
disputes or attempt to do so through
mediation and conciliation. Thus, any
adjudicatorypower exercised by them must
be agreed upon by the parties in writing
(Civil Procedure, Riano,2007).

ISSUANCE OF CERTIFICATE TO FILE


ACTION; REQUIREMENTS
The certificate to file action is issued by the
following
authorities
and
their
requirements:
1. Lupon Secretary attested by the
Lupon Chairmain certifying that:
a. A confrontation of the parties
has taken place and that a
conciliation settlement has
been reached;
b. But the same has been
subsequently repudiated;
2.

Pangkat Secretary and attested by


the Pangkat Chairman certifying
that:
a. A confrontation of the parties
has taken place but NO
conciliation settlement has
been reached; or
b. That
no
personal
confrontation
took
place
before the pangkat through
no fault of the complainant.

3.

Punong Barangay if requested by the


proper party on the ground of failure
of settlement where the dispute
involves members of the same
indigenous
cultural
community,
which shall be settled in accordance
with the customs and traditions of
that particular cultural community,
or where one or more of the parties
to the aforesaid dispute belong to

Pre-condition to Filing of
Complaint in Court
No
complaint,
petition,
action,
or
proceeding involving any matter within the
authority of the Lupon shall be filed or
instituted directly in court or any other
government office for adjudication,
UNLESS:
1. There has been a confrontation between
the parties before the Lupon Chairman
or the Pangkat,
2. That no conciliation or settlement has
been reached as certified by the Lupon
Secretary or Pangkat Secretary as

the minority and the parties


mutually agreed to submit their
dispute to the indigenous system of
amicable settlement, and there has
been no settlement as certified by
the datu or tribal leader or elder to
the Punong Barangay of place of
settlement (Secs. 1,4 & 5, Rule IX,
Katarungang Pambarangay Rules)

SUBJECT MATTER FORAMICABLE


SETTLEMENT
The Lupon of each barangay shall have the
authority to bring together the parties
actually residing in the same city or
municipality for amicable settlement of ALL
DISPUTES.
Exceptions: Cases where
1. One party is the government, or any
subdivision
or
instrumentality
thereof;
3. One party is a public officer or employee
and the dispute relates to the
performance of his official functions;
Dispute involves real properties located
in different cities and municipalities,
UNLESS the parties thereto agree to
submit their difference to amicable
settlement by an appropriate Lupon;
4. Any
complaint
by
or
against
corporations, partnerships or juridical
entities, since only individuals shall be
parties
to
Barangay
conciliation
proceedings (Sec.1, Rule VI,Katarungang
Pambarangay Rules);
5. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, EXCEPT where such
barangay units adjoin each other and
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate Lupon;
6. Offenses for which the law prescribes a

maximum penalty of imprisonment


exceeding 1 year or a fine of over
P5,000.00;
7. Offenses where there is no private
offended party;
8. Disputes where urgent legal action is
necessary to prevent injustice from
being committed or further continued,
specifically the following:
a.
Criminal
cases
where
accused is under police custody or
detention
b. Petitions for habeas corpus
by a person illegally deprived
of his rightful custody over
another or a person illegally
deprived of or on acting in
his behalf
c.
Actions
coupled
with
provisional
remedies
such
as
preliminary injunction, attachment,
delivery of personal property and
support during the pendency of the
action
d.
Actions which may be barred
by the Statute of Limitations
These are the same grounds where
parties may go directly to court (Sec.
412, LGC).
9. Any class of disputes which the
President may determine in the interest
of justice or upon the recommendation
of the Secretary of Justice;
10. Where
the
dispute
arises
from
Comprehensive Agrarian Reform Law
(Secs.46 & 47, R. A. 6657);
11. Labor disputes or controversies arising
from
employer-employee
relations
because Art. 226 of the Labor Code
grants
original
and
exclusive
jurisdiction over the conciliation and
mediation of disputes, grievances or
problems to certain offices of the
Department of Labor and Employment
(Montoya v. Escayo, No. 82211 March
21, 1989);
12. Actions to annul judgment upon a
compromise which may be filed directly

in court (Sanchez v. Tupas, L-76690


February29, 1988);
13. Cases involving status of a person
(Maglalangv. CA, No. 85692 July 31,
1989);
14. Proceedings where relief is sought under
R.A. No. 9262 or the Violence against
Women and their Children Act (Sec. 33,
R.A. No. 9262).
VENUE
1. Parties actually residing in the same
barangay
in the said barangay
2. Parties actually residing in different
barangays in the same city or
municipality in the barangay where
the respondent resides, or any of the
respondents resides, at the election of
the complainant
3. Where real property is involved in the
barangay where real property or larger
portion thereof is situated
4. Where parties are employed in the same
workplace or enrolled for study in the
same institution in the barangay
where such workplace or institution is
located
Objections to venue shall be raised in the
mediation proceedings before the Punong
Barangay; otherwise, the same shall be
deemed waived.
Referral to Lupon
The court in which non-criminal cases not
falling within the authority of the Lupon
under this LGC are filed may, at any time
before trial motu propio refer the case to the
Lupon concerned for amicable settlement
(Sec. 408 [g], 2nd par., LGC).
WHEN
MAY
PARTIES
DIRECTLY TO COURT

MAY

GO

A party may directly file an action in court

notwithstanding that said action falls


within the authority of the lupon ng
tagapamayapa when:
a. Where the accused is under detention;
b. Where the person has otherwise been
deprived of personal liberty calling for
habeas corpus proceeding;
c. Where the actions are coupled with
provisional
remedies
such
as
preliminary injunction, attachment,
delivery of personal property, and
support pendente lite; and
d. Where the action may otherwise be
barred by the statute of limitations.
Initiation of Proceedings
Upon payment of the filing fee, any
individual who has a cause of action
against another individual involving any
matter within the authority of the lupon
may complain, orally or inwriting, to the
Lupon Chairman, who is thePunong
Barangay.
Upon receipt of the complaint, the Lupon
Chairman shall within the next working
day summon the respondent(s), with notice
to the complainant(s) for them and their
witnesses to appear before him for
mediation. If he fails in his mediation effort
within 15 days from the first meeting of the
parties before him, he shall set a date for
the constitution of the Pangkat ng
Tagapagkasundo (Sec. 410, LGC).

Personal Appearance
The parties must appear in person without
the
assistance
of
counsel
or
the
intervention of anyone. Minors and
incompetents may be assisted by their next
of kin who is not a lawyer(Sec. 415, LGC).
Suspension of Prescriptive Period

The prescriptive periods. for offenses and


causes of action under existing laws shall
be interrupted upon the filing of the
complaint with the Punong Barangay,
provided that such interruption shall NOT
exceed 60 days from the filing of the
complaint with the PunongBarangay.
Proceedings in the Katarungang
PambarangayLaw
1. Mediation
2. Arbitration
3. Conciliation
Effect of Amicable Settlement
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment of court upon the expiration
of 10 days from the date thereof, UNLESS
repudiated or sought to be nullified before
the city or municipal court (Sec.416, LGC).
EXECUTION
The amicable settlement or arbitration
award may be enforced by execution by the
Lupon within 6 months from the date of the
settlement. After the lapse of such time, the
settlement may be enforced by action in the
appropriate city or municipal court.
Q: What is the difference, between the
conciliation proceedings under the
Katarungang Pambarangay Law and the
negotiations for an amicable settlement
during the pre - trial conference under
the Rules of Court? (1999 Bar Question)

A: Under the conciliation proceedings in


theKatarungang Pambarangay Law, lawyers
are prohibited from appearing for the
parties. The parties must appear in person
only except minors or incompetents who

may be assisted by their next of kin who are


not lawyers
Remedies against an Amicable
Settlement
1. Repudiation
2. Petition for Annulment

REPUDIATION
Any party to the dispute may, within 10
days from the date of the settlement,
repudiate the same by filing with the lupon
chairman a statement to that effect sworn
to before him, where the consent is vitiated
by:
a. Fraud;
b. Violence; or,
c. Intimidation.
Such repudiation shall be sufficient basis
for the issuance of the certification for filing
a complaint (Sec. 416, LGC).
The conciliation procedure required under
the Katarungang Pambarangay Law is NOT
AJURISDICTIONAL
REQUIREMENT.
Failure to have prior recourse to it does not
deprive the court of its jurisdiction, either
over the subject matter or over the person
of the defendant (Junson v.Martinez, G.R.
No. 141324, July 8, 2003, 405 SCRA 390).
A case filed in court without compliance
with prior Barangay conciliation which is a
pre-condition for formal adjudication may
be dismissed upon motion of defendant/s,
not for lack of jurisdiction of the court but
for failure to state a cause of action or
prematurity (Royales v.IAC, 127 SCRA 470),
or the court may suspendproceedings upon
petition of any party under Sec. 1, Rule 21
of the Rules of Court; and refer the case
motu proprio to the appropriate Barangay
authority in case of referral to Lupon,

applying by analogy Sec. 408 [g], 2nd par.,


Mediation does not replace the
of LGC (SCAdministrative Circular No. 14barangay systemof justice:
93, effective July 15, 1993).
The proper ground to be invoked since July
1, 1997, the date when amendment to the
Court - annexed mediation actually
Rules take effect, should be: That a
complements the Barangay Justice System
condition precedent for filing the claim has
(Katarungang Pambarangay), in bringing a
Filing of complaint w/ the Punong Barangay (PB)
not been complied with under Sec. 1 (j),
speedy and fair resolution to disputes. In
this system, the barangay leaders act as
Rule 16, Rules ofCourt. (Riano, 2007).
mediators between disputing parties within
their constituency. The Barangay Justice
Objection to non-compliance with condition
Within the next workingday
any time during
System attempts to prevent the caseAt
from
precedent for filing a complaint in court,
even
going
to
court.
Court
annexed
not being jurisdictional in nature, is
mediation begins when there is a failure to
deemed waived if not raised in a motion to
mediate in the barangay level resulting in
dismiss (Gonzales v. CA,G.R. Nos. 59495the witnesses
filing of the dispute in court. Mediation
97, June 26,
1987). of summons to the parties and
Issuance
Parties agree to a
attempts to resolve the dispute without
going into adversarial proceedings. Courts
Though no Pangkat was formed under Sec.
will actually dismiss certain cases which
410(b) of LGC (R.A. 7160), there was
have not passed through the Katarungang
Arbitratio
substantialcompliance with the law, where
Mediation
Pambarangay.
the parties metat the office of the Barangay

(Hearing)

Chairman for possible settlement. The


Repudiation of agreement within 5 days
Settlement
confrontation before the Lupon Chairman
of Pangkat is sufficient compliance with the
Award to be made after the lapse of the per
precondition for filing a case. Sec.
410of
(b)
Failure
should be construedmediation
together with
Sec. within
412
efforts
15 days
Execution within 6 months from date of settlement
of the same law (Lumbuan v. Ronquillo,G.R.
No. 155713, May 3, 2006).

Constitution of the Pangkat

PROCEDURE IN THE BARANGAY

Pangkat convenes not later than 3 days from its construction and summons the parties

Exec
within 6 months from

Failure of Conciliation hearings at the Pangkat level and of Arbitration hearings shall also lead to the issuance
Conciliation
(Hearing)
Repudiation
settlement
within
days from date thereof
Pangkat must arrive at a settlement
within 15ofdays
from the
day is10
convenes

Issuance
of certification
for filing of a complaint in court
Execution within 6 months from
the date
of settlement

THE 2016 REVISED RULES OF


PROCEDURE FOR
SMALL CLAIMS CASES

Rule does not Confer Jurisdiction over


First LevelCourts; Merely Delineates
Procedure

Supreme Court En Banc Resolutions


A.M. No. 08-8-7-SC, effective February
1, 2016 on all pilot courts for small
claims cases A.M. No. 09-6-8-SC,
effective November 3, 2009.

Sec. 33 par. (1) of B.P. 129 confers


jurisdiction over cases covered in this Rule.
The Rules of Procedure for Small Claims
Cases, As Amended merely delineates the
procedure over small claims cases, but not
jurisdiction.
Judicial Affidavit Rule Not Applicable
The Judicial Affidavit Rule applies to MeTC,
MTCC, MTC, MCTC, and Shari a Circuit
Courts but shallnot apply to small claims
cases under A.M. no.08-8-7-SC (Sec. 1,
A.M. No. 12-8-8-SC, JudicialAffidavit Rule).

Effectivity date of the implementation /


roll-out of the Rule, as amended, to all
first level court, except Sharia Circuit
Courts March 18, 2010.

It is a special rule of procedure adopted by


the Supreme Court pursuant to its rule making power under Sec. 5(5) of Article VIII
of the 1987 Constitution, to govern small
claims cases and is to be piloted in
designated first level courts (MTC, MTCC,
and MCTC). This rule allows a plaintiff to
sue a defendant without the need of a
lawyer.
Small Claims
Civil claims which are exclusively for the
payment or reimbursement of a sum of
money notexceeding P200, 000.00.
In small claims cases, judges ascertain the
factual matter at issue and elicit the
evidence all inone hearing and render a
decision thereafter. If the parties fail to
arrive at an amicable settlement, the case
shall be heard and decided within 1 day.
(Sec. 22, as amended)
No attorney shall appear in behalf of or
represent a party at the hearing, UNLESS
the attorney is the plaintiff or defendant
(Sec. 19).

SCOPE AND APPLICABILITY


This Rule shall govern the procedure in
actions before the MTCs (Sec 2, Rule 5,
Revised Rules ofCourt) for payment of
money where the value ofthe claim does not
exceed P200,000.00 exclusive of interest
and costs.
This Rule shall apply in all actions which
are: (PC)
a. Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely
for payment or reimbursement of sum of
money.
These claims may be for: (MED)
a. Money

owed

under

Contract

of

Lease,Contract of Loan, Contract of


Services,

Contract

of

Sale,

Contract of Mortgage;
b. Damages arising from contract;

or

c. Enforcement

of

barangay

amicablesettlement or an arbitration
award

involving

money

claim

covered by this Rule pursuant to


Sec. 417 of R.A. 7160 (LGC).
Non-applicability This rule doesnotapply
to:
a. Criminal actions
b. Civil actions regardless of the amount
involved,
e.g.
actions
involving
obligations todo or not to do which are
not purely for money like specific
performance
NOTE: Criminal actions are excluded
because ofmandatory requirements under
the 1987 Constitution, particularly Sec.
14(2), Art. III, which grants the accused the
right to be heard in all criminal
prosecutions.
PROCEDURE
1. COMMENCEMENT OF SMALL CLAIMS
ACTIONA
small
claims
action
iscommenced by filing with the court an
accomplished and verified Statement of
Claim (SOC) in duplicate, accompanied
by:
a. a Certification
Shopping;

of

Non-forum

b. Splitting a Single Cause of


Action and Multiplicity of Suits
c. 2 duly certified photocopies of
the
actionable
document/s
subject of the claim;
d. affidavits of witnesses; and,
e. other evidence to support the
claim.

Effect of Evidence Not Attached;

No evidence shall be allowed during the


hearing which was not attached to or
submitted together with the Statement of
Claim.
Exception
Only the evidence submitted with SOC is
allowed unless good cause is shown to
admit additional evidence.
The plaintiff must state in the Statement of
Claim if he/she/it is engaged in the
business of lending, banking and similar
activities, and the number of small claims
cases filed within the calendar year
regardless of judicial station.

Pleading
Action

to

Initiate

Small

Claims

EXAMINATION BY THE COURTafter


thecourt determines that the case falls
under this Rule, it may, from an
examination of the allegations of the SOC
and such evidence attached thereto, by
itself, dismiss the case outright on any of
the grounds apparent from the Claim for
the dismissal of the case. The order of
dismissal shall state if it is with or without
prejudice. If, during the hearing, the court
is able to determine that there exists a
ground for dismissal of the Statement of
Claim/s, the court may, by itself, dismiss
the case even if such ground is not pleaded
in the defendants Response.
If plaintiff misrepresents that he/she/ it is
not engaged in the business of banking,
lending or similar activities when in fact
he/she/it is so engaged, the Statement of
Claim/s shall be dismissed with prejudice
and plaintiff shall be meted the appropriate
sanctions, such as direct contempt.

However, if the case does not fall under this


Rule, but falls under summary or regular
procedure, the case shall not be dismissed.
Instead, the case shall be re-docketed
under the appropriate procedure, and
returned to the court where it was
assigned, subject to payment of any
deficiency in the applicable regular rate of
filing fees. If a case is filed under the
regular or summary procedure, but actually
falls under this Rule, the case shall be
referred to the Executive Judge for
appropriate assignment.(Sec. 11).
If no ground for dismissal is found, the
court shall forthwith issue Summons on
the day of receipt of the SOC, directing the
defendant to submit a verified Response.
The court shall also issue Notice of Hearing
(Form 4-SSC) to both parties, directing
them to appear before it on a specific date
and time for hearing, with a warning that
no unjustified postponement shall be
allowed. The Summons to be served on the
defendant shall be accompanied by a copy
of the Statement of Claim/s and documents
submitted by plaintiff, and a blank
Response Form (Form 3-SCC) to be
accomplished by the defendant. A Notice of
Hearing shall accompany the Summons
and shall contain: (a) the date of the
hearing, which shall not be more than
thirty (30) days from the filing of the
Statement of Claim/s; and (b) the express
prohibition against the filing of a motion to
dismiss or any other motion under Section
16 of this Rule.
If Summons is returned without being
served on any or all of the defendants, the
court shall order the plaintiff to cause the
service of summons and to inform the court
within thirty (30) days from notice if said
summons was served or not; otherwise, the
Statement of Claim/s shall be dismissed
without prejudice as to those who were not
served with summons. (Sec.12)

2. RESPONSEThe defendant shall file


withthe court and serve on the plaintiff
a duly accomplished and verified
Response within a non-extendible
period of 10 days from receipt of
summons. The Response shall be
accompanied by certified photocopies of
documents, as well as affidavits of
witnesses and other evidence in support
thereof. (Sec.11, as amended, per SC En
Banc Resolution, Effective November 3,
2009)
What is the effect if the defendant failed
to file aresponse?
Should the defendant fail to file his/her/its
Response within the required period, and
likewise fail toappear at the date set for
hearing, the court shall render judgment on
the same day, as may be warranted by the
facts alleged in the Statement of Claim/s.
Should the defendant fail to file his/her/its
response BUT appears at the date set for
hearing, the court shall ascertain what
defense he/she/it has to offer which shall
constitute his/her/its Response, and
proceed to hear, mediate or adjudicate the
case on the same day as if a response has
been filed. No formal pleading, other than
the SOC described in this Rule, is
necessary to initiate a small claims action
(Sec. 5).
Who is required to pay the filing fees?
The plaintiff shall pay the docket and other
legal fees prescribed under Rule 141 of the
Revised Rules of Court, unless allowed to
litigate as an indigent. But, ALL PARTIES,
even if declared an indigent, MUST pay
P1,000.00 fee for service of summons and
processes in civil cases. (Sec. 12, as
amended). Exemption from the payment of

filing fees shall be granted only by the


Supreme Court.

the hearing or for other matters outside the


hearing (Sec. 19).

However, if more than five (5) small claims


are filed by one party within the calendar
year, regardless of the judicial station, an
additional filing fee of P500.00 shall be paid
for every claim filed after the fifth
(5th) claim, and an additional 100 or a total
of P600.00 for every claim filed after the
tenth (10th) claim, and another P100.00 or
a total of P700 for every claim filed after the
fifteenth (15th) claim, progressively and
cumulatively.

The representative must be authorized


under a Special Power of Attorney to enter
into:
a. An amicable settlement of the

If the plaintiff is engaged in the business of


banking, lending and similar activities, the
amount of filing and other legal fees shall
be the same as those applicable to cases
filed under the regular rules.
The defendant may file a COUNTERCLAIM
in the Response, whether compulsory or
permissive.
However,
a
compulsory
counterclaim not raised, shall be barred.
The filing of motion to dismiss instead of a
response is PROHIBITED, except on ground
of lack of jurisdiction.

3. APPEARANCEThe
parties
shall
appear atthe designated date of hearing
personally.
Appearance through a representative must
be for a valid cause. The representative of
an individual-party must NOT be a lawyer,
and must be related to or next-of-kin of the
individual-party. Juridical entities shall not
be represented by a lawyer in any capacity.
Lawyers are not allowed to appear at the
hearing unless they are the plaintiff or the
defendant. However, since the process is
still a legal process, the parties and their
authorized representatives can still consult
with a lawyer to assist them to prepare for

dispute and
b. Stipulations or admissions of facts
and of documentary exhibits (Sec.
18, as amended).

Non-appearance of Parties
Failure of the plaintiff to appear shall be
cause for the dismissal of the claim without
prejudice. The defendant who appears in
the absence of the plaintiff shall be
entitled to judgment on a permissive
counterclaim.
Failure of the defendant to appear shall
have the same effect as failure to file a
Response under Sec. 12 of this Rule.
This shall not apply where one of 2 or more
defendants who are sued under a common
cause of action and have pleaded a common
defense appears at the hearing.
Failure of both parties to appear shall
cause the dismissal with prejudice of both
the claim andcounterclaim.
Postponement of a hearing may be granted
only upon proof of the physical inability of
the party to appear before the court on the
scheduled date and time. A party may avail
of only 1 postponement (Sec. 19).

4. HEARINGAt the hearing, the judge


shall first exert efforts to bring the
parties to AN AMICABLE SETTLEMENT
of their dispute. if the efforts at the
settlement fail, the hearing shall
immediately proceed in an informal

and expeditious manner and be


terminated within the same day. Any
settlement or resolution of the dispute
shall be reduced into writing, signed by
the parties and submitted to the court
for approval.
Settlement discussions shall be strictly
confidential and any reference to any
settlementmade in the course of such
discussions shall be punishable by
contempt (Sec. 23).

Failure of Settlement
IF EFFORTS AT SETTLEMENT FAIL, the
hearing shall proceed in an informal and
expeditious manner and BE terminated
within 1 day. Either party may move in
writing to have another judge hear and
decide the case.
The referral by the original judge to the
Executive judge shall be made within the
same day the motion is filed and granted,
and by the Executive Judge to the
designated judge within the same day of the
referral. The new judge shall hear and
decide the case within 5 working days from
receipt of the order of reassignment.
NOTE: The conduct of Judicial Dispute
Resolution(JDR) under Sec. 21 and 22 is
AMENDED per SC En Banc Resolution,
Effective November 3, 2009.

5. DECISION After the hearing, the


courtshall render its decision based on
the facts established by the evidence
within
twenty
four
hours
from
termination of the hearing. A decision
in small claims cases is final,
executory and unappealable(Sec.24).
This does not violate the right to

dueprocess because the right of appeal


is not a natural right or a part of the
constitutionally guaranteed right to due
process. It is merely a statutory
privilege and a procedural remedy of
statutory origin, which may be exercised
only in the manner and in accordance
with the provisions of the law
authorizing such exercise.

The declaration that the decision is final


and unappealable is in line with the nature
of small claims which is designed to
preclude unmeritorious appeals that result
in long drawn litigation for cases of this
nature, pursuant to the Supreme Courts
constitutional mandate to enact rules of
procedure.
REMEDIES OF A PARTY
1. Petition for Certiorari under Rule 65 of
the Rules of Court
2. Action for Annulment of Judgment

PROHIBITED PLEADINGS & MOTIONS


(Sec. 16, as amended)
a. Motion to dismiss the Statement of
Claim/s;
b. Motion for a bill of particulars;
c. Motion
for
new
trial,
or
for
reconsideration of a judgment, or for
reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension of time to file
pleadings, affidavits, or any other paper;
f. Memoranda;
g. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
h. Motion to declare the defendant in
default;
i. Dilatory motions for postponement;
j. Reply and rejoinder;
k. Third-party complaints; and

l.

Interventions

Effectivity. These Revised Rules shall take


effect on February 1, 2016 following their
publication in 2 newspapers of general
circulation. They shall govern all cases filed
after their effectivity and also all pending
proceedings, except to the extent that in the
opinion of the court, their application
would not feasible or would work injustice,
in which case the procedure under which
the cases were filed shall govern.
Small claims cases, being purely money
claims of P200, 000.00 or less are governed
by the Rule on Summary Procedure.
However, with the effectivity of the Rule of
Procedure for Small Claims Cases, this new
rule shall applyspecifically to small
claims cases filed in court.
By way of illustration, if a defendant files an
answer called a Response to the claim, the
court shall schedule only 1 hearing for the
purpose of encouraging the parties to settle
without the appearance of lawyers, to hear
the statement of the parties under oath,
and to consider all documentary evidence of
the parties. After such hearing, the court
will also issue the decision on the same
day.

PROCEDURE FOR FILING SMALL CLAIMS

Dismiss the case


outright if on any of the
grounds apparent for
the dismissal of a civil

Defendant shall
file with the court
and serve on the
plaintiff a verified
Response within
10 days.
Counterclaim
Determination
by
shall
be
the court if thefiled
with the
casetogether
falls under
this Response,
Rule
otherwise it is

If no ground,
Failurecourt
to file
shallresponse,
issue
Summons
and by
the court
direct
theshall
itself
defendant
to
render
submitjudgment
a verifiedas
response.
The
may
be
court shall
issue
warranted aby
Noticethe
to facts
both in

HEARING FOR SMALL CLAIMS CASES


Hearing

Filing of a
Statement of
Claim (SOC)
Both parties appear
Both parties

Defendant

fail to appear
Filing of docket
and other
legal fees, UNLESS allowed
to litigate as an indigent

fails
to
Plaintiff
fails to appear

Judgment
on counterclaim
the settlement).
claim, EXCEPT
if one of the defendants appears
Dismissal
BOTH
claim
and
with prejudice
Judge shall conduct Judicial
DisputeofResolution
(amicable

Defendant who appears is entitled toDismissal


judgmentof
onthe
a permissive
claim withoc
Failure to amicablyIf settle,
referral
another
successful,
thetojudge
shalljudge
continue the hearing.

Decision on the day of the hearing


Hearing before another judge

Execution

RULES OF PROCEDURE FOR ENVIRONMENTAL


CASES (A.M. No. 09-6-8-SC)
Effective April 29, 2010
This Rule abolished 117 designated special
courts under A.O. No. 23-2008 to hear, try
and decide environmental cases. Said cases
are now under the jurisdiction of ALL first
and second level courts (MeTC, MTCC,
MTC, MCTC, and RTC).
CONSTITUTIONAL BASIS:
Section 16, Article II: The State shall
protect andadvance the right of the people
to a balanced and healthful ecology in
accord with the rhythm and harmony of
nature.
Section 15, Article II: The State shall
protect andpromote the right to health of
the people and instill health consciousness
among them.
Section 5[5], Article VIII: The Supreme
Court shallpromulgate rules concerning the
protection and enforcement of
constitutional rights.

RULE 1
GENERAL PROVISIONS
SEC. 2. SCOPE
These Rules shall govern the procedure in
civil, criminal and special civil actions
before the RTC, MeTC, MTCC, MTC, and
MCTC involving enforcement or violations of
environmental and other related laws, rules
and regulations such as but not limited to
the following:
1. Act No. 3572, Prohibition Against
Cutting of Tindalo, Akli, and Molave

Trees;
P.D. No. 705, Revised Forestry Code;
P.D. No. 856, Sanitation Code;
P.D. No. 979, Marine Pollution Decree;
P.D. No. 1067, Water Code;
P.D. No. 1151, Philippine Environmental
Policy of 1977;
7. P.D. No. 1433, Plant Quarantine Law of
1978;
9. P.D.
No.
1586,
Establishing
an
Environmental
Impact
Statement
System Including Other Environmental
Management Related Measures and for
Other Purposes; R.A. No. 3571,
Prohibition
Against
the
Cutting,
Destroying or Injuring of Planted or
Growing Trees,
10. Flowering Plants and Shrubs or Plants
of Scenic Value along Public Roads, in
Plazas, Parks, School Premises or in any
Other Public Ground;
11. R.A. No. 4850, Laguna Lake
Development Authority Act;
12. R.A. No. 6969, Toxic Substances
and Hazardous Waste Act;
13. R.A. No. 7076, Peoples Small-Scale
Mining Act;
14. R.A. No. 7586, National Integrated
Protected
Areas
System
Act
including all laws, decrees, orders,
proclamations
and
issuances
establishing protected areas;
15. R.A.
No.
7611,
Strategic
Environmental Plan for Palawan
Act;
16. R.A. No. 7942, Philippine Mining Act;
17. R.A. No. 8371, Indigenous Peoples
Rights Act;
18. R.A. No. 8550, Philippine Fisheries
Code;
19. R.A. No. 8749, Clean Air Act;
20. R.A. No. 9003, Ecological Solid Waste
Management Act;
21. R.A. No. 9072, National Caves and Cave
Resource Management Act;
2.
3.
4.
5.
6.

22. R.A. No. 9147, Wildlife Conservation


and Protection Act;
23. R.A. No. 9175, Chainsaw Act;
24. R.A. No. 9275, Clean Water Act;
25. R.A.
No.
9483,
Oil
Spill
Compensation Act of 2007; and
26. Provisions in C.A. No. 141, The Public
Land Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988;R.A. No.
7160, Local Government Code of 1991;
R.A. No. 7161, Tax Laws Incorporated in
the Revised Forestry Code and Other
Environmental Laws (Amending the
NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No.
7900, High-Value Crops Development
Act;
R.A.
No.
8048,
Coconut
Preservation Act; R.A. No. 8435,
Agriculture and Fisheries Modernization
Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law;
R.A. No. 9593, Renewable Energy Act of
2008; R.A. No. 9637, Philippine Biofuels
Act; and other existing laws that relate
to
the
conservation,development,reservation,
protection and utilization of the
environment and natural resources.
SEC. 4. Definition of Terms
1. By-product or derivatives means
any
parttaken
or
substance
extracted from wildlife, in raw or in
processed form including stuffed
animals and herbarium specimens.
2. Mineral refers to all naturally
occurringinorganic substance in
solid,
gas,
liquid,
or
any
intermediate state excluding energy
materials such as coal, petroleum,
natural gas, radioactive materials
and geothermal energy.
3. Strategic lawsuit against public
participation (SLAPP) refers to an

actionwhether civil, criminal or


administrative, brought against any
person,
institution
or
any
government
agency
or
local
government unit or its officials and
employees, with the intent to
harass, vex, exert undue pressure
or stifle any legal recourse that such
person, institution or government
agency has taken or may take in the
enforcement of environmental laws,
protection of the environment or
assertion of environmental rights.
4. Wildlife means wild forms and
varieties offlora and fauna, in all
developmental
stages
including
those which are in captivity or are
being bred or propagated.

Civil procedure
RULE 2
PLEADINGS AND PARTIES

1.

3.
4.
5.

SECTION 1. Pleadings and motions


allowed
Complaint,
2. Answer
which
may
include
compulsory counterclaim and crossclaim,
Motion for intervention,
Motion for discovery and
Motion for reconsideration of the
judgment.

NOTE: (1) Motion for postponement, (2)


motionfor new trial and (3) petition for relief
from judgment shall be allowed in highly
meritorious cases or to prevent a manifest
miscarriage of justice.
PROHIBITED PLEADINGS AND MOTIONS
1. Motion to dismiss the complaint;

2. Motion for a bill of particulars;


3. Motion for extension of time
to file pleadings;
4. Motion to declare the defendant in
default;
5. Reply and rejoinder; and
6. Third party complaint.
NOTE: A motion for extension of time to
fileanswer is NOT a prohibited motion,
provided the extension should not to exceed
15 days.

SEC. 3. Verified complaint


CONTENTS
1. The names of the parties and their
addresses;
2. The cause of action ;
3. The reliefs prayed for;
4. All evidence proving or supporting the
cause of action consisting of the
affidavits of witnesses, documentary
evidence
and
if
possible,
object
evidence;
5. A statement that it is an environmental
case and the law involved;
6. Certification against forum shopping
7. Proof of service upon the government or
appropriate agency (Sec. 6).
Who may file a civil action involving
theenforcement or violation of any
environmentallaw?
It may be filed by any real party in interest,
including the government and juridical
entities authorized by law (Sec. 4).
SEC. 5. Citizen Suit
An action filed by any Filipino citizen in
representation of others, including minors
or generations yet unborn, to enforce rights
or obligations under environmental laws

(Oposa v.Factoran, G.R. No. 101083,


July 30, 1993).
Upon the filing of a citizen suit, the court
shall issue an order which shall contain (1)
a brief description of the cause of action
and (2) the reliefs prayed for, requiring all
interested parties to manifest their interest
to intervene in the case within 15 days from
notice thereof.
The plaintiff may publish the order once in
a newspaper of a general circulation in the
Philippines
or
furnish
all
affected
barangays copies of said order.
Rationale: To further encourage the
protection of the environment, the Rules
enable litigants enforcing environmental
rights to file their cases as citizen suits.
As a procedural device, citizen suits
permit deferment of payment of filing
fees until after the judgment (Sec. 12,
Rule 2).
NOTE: Citizen suits filed under R.A. No.
8749 and R.A. No. 9003 shall be governed
by their respective provisions.
SEC. 6. Service of the complaint on
thegovernment or its agencies
Upon the filing of the complaint, the
plaintiff is required to furnish the
government or the appropriate agency,
although not a party, a copy of the
complaint.
SEC.8. ISSUANCE OF TEMPORARY
ENVIRONMENTAL PROTECTION ORDER
(TEPO)
Environmental protection order (EPO)
refers toan order issued by the court
directing or enjoining any person or
government agency to perform or desist
from performing an act in order to protect,
preserve or rehabilitate the environment.

TYPES OF EPO
1. Permanent Environment
Protection Order (PEPO)
2. Temporary Environmental
Protection Order (TEPO)
NOTE: The EPO is both prohibitive and
mandatoryrelief. This remedial measure
can also be prayed for in the Writs of
Kalikasan and Continuing mandamus.
TEMPORARY
ENVIRONMENT
PROTECTION
ORDER
Temporary in
nature
It may be issued
ex
parte when:

PERMANENT
ENVIRONMENT
PROTECTION
ORDER
Of permanent
character

The court may, in


its
TEPO to a
1. The matter is of
Permanent
extreme urgency
EPO.
and
2. The applicant
will suffer grave
injustice and
irreparable
injury
It may be issued
It may be issued
after the filing of
only after
the complaint or
judgment.
petition
in petitions for the
Writ of Kalikasan
and
Continuing
Mandamus.

Effectivity: 72 hours from date of the


receipt ofthe TEPO by the party or person
enjoined
Within said period, the court where the
case is assigned, shall conduct a summary
hearing to determine whether the TEPO
may be extended until the termination of
the case. The applicant shall be exempted
from the posting of a bond for the issuance
of a TEPO.
SEC.9. Action on motion for dissolution
of TEPO
When TEPO may be dissolved
The TEPO may be dissolved if it appears
after hearing that its issuance or
continuance would cause irreparable
damage to the party or person enjoined
while
the
applicant
may
be
fully
compensated for such damages as he may
suffer and subject to the posting of a
sufficient bond by the party or person
enjoined.
SEC.10. PROHIBITION AGAINST
TEMPORARY RESTRAINING ORDER
(TRO) AND PRELIMINARY INJUNCTION.
General rule: No court can issue a TRO or
writ ofpreliminary injunction against lawful
actions of government agencies that enforce
environmental laws or prevent violations
thereof.
Exception: The Supreme Court may issue
such orders.

What are the grounds upon which a


TEPO maybe issued ex parte?
1.
The matter is of extreme urgency
and
2. The applicant will suffer grave
injustice and irreparable injury

SEC. 12. Payment of filing and


other legal fees
The payment of filing and other legal fees by
the plaintiff shall be deferred until after

judgment UNLESS the plaintiff is allowed to


litigate as an indigent. It shall constitute a
first lien on the judgment award.
For citizen suits, the payment of filings fees
shall be deferred in ALL instances even
though the plaintiff is not an indigent.
SEC. 13. Service of summons, orders
and other court processes.
By whom served
1.
2.
3.
4.

By the sheriff,
His deputy, or
Other proper court officer, or
For justifiable reasons, by the counsel
or representative of the plaintiff or
5. Any suitable person authorized or
deputized by the court issuing the
summons.

counterclaims NOT asserted shall be


considered
barred.
The
answer
to
counterclaims or cross-claims shall be filed
and served within 10 days from service of
the answer in which they are pleaded.
SEC. 15. Effect of failure to answer.
1. The court shall declare defendant in
default and
2. Upon motion of the plaintiff, the court
shall receive evidence ex parte and
render judgment based thereon and the
reliefs prayed for.

RULE 3 - PRE-TRIAL
PROCEDURE IN THE PRE-TRIAL
1.

MODES OF SERVICE OF SUMMONS


1. Personal
2. Substituted service
3. If personal and substituted service fail,
y publication
NOTE: The15-day period for the defendant
to filehis Answer is the same period within
which the defendant can avail of various
modes of discovery under Rules 23, 25, 26,
27, and 28 EXCLUDING Rule 24 of the
Rules of Court.
SEC. 14. Verified Answer
Within 15 days from receipt of summons,
the defendant shall file his answer to the
complaint.

The court shall set as many pre-trial


conferences as may be necessary within a
period of 2 months counted from the date
of the first pre-trial conference (Sec. 1).
NOTE: Unlike in Rule 18 of the Rules of
Court, theplaintiff is not duty-bound to
move ex parte that the case be set for pretrial.
2.

Pre-trial briefs. At least 3 days


before thepre-trial, the parties shall
submit pre-trial briefs (Sec. 2).

3.

At the start of the pre-trial


conference, the court shall inquire from
the parties if they have settled the
dispute.

Affirmative and special defenses not


pleaded shall be deemed WAIVED, except
lack of jurisdiction.
Cross-claims

and

compulsory

Notice of pre-trial. Within 2 days


from thefiling of the answer to the
counterclaim or cross-claim, if any, the
branch clerk of court shall issue a
notice of the pre-trial to be held not
later than 1 month from the filing of the
last pleading.

4.

Referral

to

mediation.

If

the

parties fail tosettle, the court shall


immediately refer the parties or their
counsel, if authorized by their clients, to
the Philippine Mediation Center (PMC)
unit for purposes of mediation. If not
available, the court shall refer the case
to the clerk of court or legal researcher
for mediation (Sec. 3).
5.

6.

Conduct of Mediation. Mediation


MUST beconducted within a nonextendible period of 30 days from
receipt of notice of referral to mediation.
Preliminary
conference.
If
mediation fails,the court will schedule
the continuance of the pre-trial. Before
the scheduled date of continuance, the
court may refer the case to the clerk of
court for a preliminary conference (Sec.
4).

7.

Pre-trial conference. The judge


shall put theparties and their counsels
under oath, and they shall remain
under oath in all pre-trial conferences.

8.

Consent decree. The judge may


issue aconsent decree approving the
agreement between the parties in
accordance with law, morals, public
order and public policy to protect the
right of the people to a balanced and
healthful ecology (Sec. 5).

Consent decree refers to a judiciallyapprovedsettlement


between
concerned
parties based on public interest and public
policy to protect and preserve the
environment.
NOTE: It allows for a compromise
agreement between two parties in
environmental litigation over issues that
would normally be litigated in court, and
other matters that may not necessarily
be of issue in court.

9. Pre-trial order. Within 10 days after


thetermination of the pre-trial, the
court shall issue a pre-trial order. Said
order shall bind the parties, limit the
trial to matters not disposed of and
control the course of action during the
trial (Sec. 9).
NOTE: Evidence not presented during the
pre-trial, except newly discovered evidence,
shall be deemed WAIVED.
SEC. 7. Effect of failure to appear at pretrial
What is the effect if the plaintiff fails
to appear at pre-trial?
General rule: The court shall NOT dismiss
the complaint.
Exception: The court shall dismiss the
complaintONLY
upon
repeated
and
unjustified failure of the plaintiff to appear.
The dismissal shall be without prejudice,
and the court may proceed with the
counterclaim.
What is the rule in case the defendant
fails toappear at pre-trial?
If the defendant fails to appear at the pretrial, the court shall NOT dismiss the
complaint. The court shall receive evidence
ex parte.

SEC. 10. Efforts to settle


The court shall endeavor to make the
parties agree to compromise or settle in
accordance with law at any stage of the
proceedings before rendition of judgment.

SEC. 2. Pre-trial Brief

CONTENTS OF THE PRE-TRIAL BRIEF


1. A statement of their willingness to enter
into an amicable settlement indicating
the desired terms thereof or to submit
the case to any of the alternative modes
of dispute resolution;
2. A summary of admitted facts and
proposed stipulation of facts;
3. The legal and factual issues to be tried
or resolved. For each factual issue, the
parties shall state all evidence to
support their positions thereon. For
each legal issue, parties shall state the
applicable
law
and
jurisprudence
supporting their respective positions
thereon;
4. The documents or exhibits to be
presented,
including
depositions,
answers to interrogatories and answers
to written request for admission by
adverse party, stating the purpose
thereof;
5. A manifestation of their having availed
of discovery procedures or their
intention to avail themselves of referral
to a commissioner or panel of experts;
6. The number and names of the
witnesses and the substance of their
affidavits;
7. Clarificatory questions from the parties;
and
8. List of cases arising out of the same
facts pending before other courts or
administrative agencies.
Failure to file the pre-trial brief shall have
the same effect as failure to appear at the
pre-trial.

RULE 4 - TRIAL
PROCEDURE
1. Continuous trial. A continuous trial
whichshall be conducted which shall

NOT exceed 2 months from the date of


the issuance of the pre-trial order.
NOTE: The judge may ask the SC for
theextension of the trial for justifiable
cause, before the expiration of the twomonth period (Sec. 1).
2. Affidavits

in

lieu

of

direct

examination.
Inlieu
of
direct
examination, affidavits marked during
the pre-trial shall be presented as direct
examination of affiants subject to cross
examination by the adverse party (Sec.
2).
3. Oral
offer
of
evidence.
After
thepresentation of the last witness, only
oral offer of evidence shall be allowed,
and
the
opposing
party
shall
immediately interpose his objections.
The judge shall forthwith rule on the
offer of evidence in open court (Sec.3).
4. Submission of case for decision. After
thelast party has rested its case, the
court shall issue an order submitting
the case for decision.
5. Filing of memoranda. The court may
requirethe parties to submit their
respective memoranda, if possible in
electronic form, within a non-extendible
period of 30 days from the date the case
is submitted for decision.
6. The court shall have a period of 60 days
to decide the case from the date the
case is submitted for decision (Sec. 4)
NOTE: Actual direct examination of
witnesses isNOT allowed, however, the
rules provide that affidavits marked during
the pre-trial shall be presented as direct
examination of affiants, in lieu of direct
examination
SEC. 3. One-day examination of witness

rule
The court shall strictly adhere to the rule
that a witness has to be fully examined in 1
day, subject to the courts discretion of
extending the examination for justifiable
reason.
SEC. 5. Period to try and decide
The court shall have a period of 1 year from
the filing of the complaint to try and decide
the case.
Before the expiration of the one-year
period, the court may petition the SC for
the extension of the period for justifiable
cause.

RULE 5 - JUDGMENT AND EXECUTION


SEC. 1. RELIEFS IN A CITIZEN SUIT
If warranted, the court may grant to the
plaintiff proper reliefs and the payment of
attorneys fees, costs and other litigation
expenses.
It may also require the violator to submit a
program of rehabilitation or restoration of
the environment, the costs of which shall
be borne by the violator, or to contribute to
a special trust fund for that purpose
subject to the control of the court.

SEC. 2. Judgment not stayed


by appeal

SEC.3. PERMANENT EPO; WRIT OF


CONTINUING
MANDAMUS
In the judgment, the court may convert the
TEPO to a permanent EPO or issue a writ
of continuing mandamus.
The court may, by itself or through the
appropriate government agency, monitor
the execution of the judgment and require
the party concerned to submit written
reports on a quarterly basis or sooner as
may be necessary, detailing the progress of
the execution and satisfaction of the
judgment.
The other party may, at its option, submit
its comments or observations on the
execution of the judgment.
SEC.4. Monitoring of compliance with
judgmentand orders of the court by a
commissioner
The court may motu proprio, or upon motion
of the prevailing party, order that the
enforcement of the judgment or order be
referred to a commissioner to be appointed
by the court.
SEC. 5. Return of writ of execution
The process of execution shall terminate if
it is sufficiently shown to the court that the
decision or order has been implemented in
accordance with Sec. 14, Rule 39 of the
Rules of Court.

Any judgment directing the performance of


acts for the protection, preservation or
rehabilitation (PPR) of the environment
shall
be
executorypending
appeal
UNLESS restrained by the appellate court.
RULE 6 - STRATEGIC LAWSUIT

AGAINST PUBLIC PARTICIPATION


SEC. 1. Strategic lawsuit against public
participation (SLAPP)
SLAPP refers to an action whether civil,
criminalor administrative, brought against
any person, institution or any government
agency or local government unit or its
officials and employees, with the intent to
harass, vex, exert undue pressure or stifle
any legal recourse that such person,
institution or government agency has taken
or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental
rights.
NOTE: SLAPP governed by Rule 6 is a civil
actionwhile SLAPP under Rule 19 is a
criminal one.

PROCEDURE
1. Filing of a complaint alleged to be a
SLAPP against a person involved in the
enforcement of environmental laws,
protection of the environment, or
assertion of environmental rights.
2. SLAPP pleaded as an affirmative
defense in the Answer. The defendant
in a SLAPP mayfile an Answer
interposing as a defense that the case is
a SLAPP and, by way of counterclaim,
pray for damages, attorneys fees and
costs of suit.
3. Opposition. The court shall direct
theplaintiff to file an Opposition
showing the suit is NOT a SLAPP,
within a non-extendible period of 5 days
from receipt of notice that an answer
has been filed.
4. Summary hearing. The defense of a

SLAPPshall be set for a summary


hearing by the court after issuance of
the order to file an opposition within 15
days from filing of the comment or the
lapse of the period. (Sec. 2)
5. Burden of proof required. During
thehearing, the defendant must
prove by substantial evidence that
his acts for the enforcement of
environmental law is a legitimate
action
for
the
protection,
preservation and rehabilitation of
the environment. The plaintiff shall
prove by preponderance of evidence
that the action is not a SLAPP and
is a valid claim (Sec. 3).
6. Resolution of the defense of a
SLAPP. Theaffirmative defense of a
SLAPP shall be resolved within 30
days after the hearing. If the court
dismisses the action, the court may
award damages, attorneys fees and
costs of suit under a counterclaim
if such has been filed. The
dismissal shall be with prejudice.
7. If the court rejects the defense of a
SLAPP,
(1) the evidence adduced during the
hearing shall be treated as evidence of
the parties on the merits of the case.
(2) The action shall proceed in
accordance with the Rules of Court
(Sec. 4).
SLAPP under
Rule 6

SLAPP under
Rule 19

SLAPP is a civil
action.
That the action is
a SLAPP is
alleged in the

SLAPP is a
criminal case.
That the action is
a
SLAPP is alleged in

the writ of amparo in terms of addressing


ecological cases
(Vera, 2010).
The hearing on
the defense of a
SLAPP shall be
summary in
nature.
The defendant
may file a
counterclaim
and the plaintiff
may file an
opposition
showing that the
suit is not a
SLAPP.

The hearing on the


defense of a SLAPP
shall
be summary in
nature.

No counterclaim
and comment
/opposition
allowed

Similar to the writs of habeas corpus,


amparo and habeas data, the issuance of
the writ of kalikasan is immediate in
nature. It contains a very specific set of
remedies which may be availed of
individually or cumulatively.
SEC. 2. Contents of the petition
1. The personal
petitioner;

circumstances

of

the

2. The name and personal circumstances


of the respondent or if the name and
personal circumstances are unknown
and uncertain, the respondent may be
described by an assumed appellation;

SPECIAL CIVIL ACTIONS


RULE 7
WRIT OF KALIKASAN
SEC. 1. Nature of the writ
The writ is a remedy available to a natural
or juridical person, entity authorized by
law,
peoples
organization,
nongovernmental organization, or any public
interest group accredited by or registered
with any government agency, on behalf of
persons whose constitutional right to a
balanced and healthful ecology is violated,
or threatened with violation by an unlawful
act or omission of a public official or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in 2 or more cities
or provinces.
NOTE: The Writ of Kalikasan is the
equivalent ofthe writ of habeas corpus or of

3. The
environmental
law,
rule
or
regulation violated or threatened to be
violated, the act or omission complained
of, and the environmental damage of
such magnitude as to prejudice the life,
health or property of inhabitants in two
or more cities or provinces.
4. All relevant and material evidence
consisting of the affidavits of witnesses,
documentary evidence, scientific or
other expert studies, and if possible,
object evidence;
5. The certification of non-forum shopping;
and
6. The reliefs prayed for which may
include a prayer for the issuance of
a TEPO.
SEC. 3. Where to file
1. Supreme Court or
2. With any of the stations of the CA

Conference. Uponreceipt of the


return of the respondent, the court
may call a preliminary conference.

SEC. 4. No docket fees.


The petitioner shall be exempt from the
payment of docket fees.
PROCEDURE
1. Filing of the petition.

The hearing including the preliminary


conference shall not extend beyond 60 days
and shall be given the same priority as
petitions for the writs of habeas corpus,
amparo and habeas data (Sec.11).
5. Submission of case for decision.
Afterhearing, the court shall issue
an order submitting the case for
decision.

2. Order
issuing
the
Writ
of
Kalikasan. Within 3days from the
date of filing of the petition, if the
petition is sufficient in form and
substance, the court shall give an
ORDER:

6. Filing of memoranda. The court


may requirethe filing of memoranda
and if possible, in its electronic
form, within a non-extendible period
of 30 days from the date the petition
is submitted for decision (Sec. 14).

a. Issuing the writ; and


b. Requiring the respondent to
file a verified return as
provided in Sec. 8 of this
Rule (Sec. 5).
3. Filing of return by respondent.
Within a non-extendible period of
10 days after service of the writ, the
respondent
shall
file
a
verifiedreturn which shall contain
all defenses toshow that respondent
did not violate or threaten to violate,
or allow the violation of any
environmental
law,
rule
or
regulation or commit any act
resulting to environmental damage.
All defenses not raised in the return shall
be deemed WAIVED. A general denial of
allegations in the petition shall be
considered as an admission thereof (Sec. 8).
NOTE: In case the respondent fails to file a
return,the court shall proceed to hear the
petition exparte.

4. Hearing

and

Preliminary

7.

Judgment. Within 60 days from the


time thepetition is submitted for
decision, the court shall render
judgment granting or denying the
privilege of the writ of Kalikasan (Sec.
15).
SEC. 6. How the writ is served

1. Personal service
2. Substituted service, if personal service
cannot be effected.

SEC. 7. Penalty for refusing to issue or


serve thewrit.
The following shall be punished by the
courtfor contempt without prejudice to
other civil, criminal or administrative
actions:
1. A clerk of court who unduly delays
or refuses to issue the writ after its
allowance, or

2. A court officer or deputized person


who unduly delays or refuses to
serve the same.

SEC. 8. Return of respondent; contents


CONTENTS OF RETURN
1.
2.
3.
4.

Affidavits of witnesses,
Documentary evidence,
Scientific or other expert studies, and
If possible, object evidence, in support
of the defense of the respondent.

PROHIBITED PLEADINGS AND MOTIONS


1. Motion to dismiss;
2. Motion for extension of time to file
return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default.
SEC. 12. Discovery Measures
DISCOVERY MEASURES AVAILABLE
UNDER THE WRIT
1. Ocular Inspection Order
2. Production or Inspection Order
a. Ocular Inspection Order an
orderrequiring
any
person
in
possession or control of a designated
land or other property to permit entry
for the purpose of inspecting or
photographing the property or any
relevant object or operation thereon.

such purpose.
2. The motion must show that an ocular
inspection order is necessary to
establish the magnitude of the
violation or the threat as to prejudice
the life, health or property of
inhabitants in two or more cities or
provinces.
3. It shall state in detail the place or
places to be inspected.
4. It shall be supported by affidavits of
witnesses having personal knowledge
of the violation or threatened violation
of environmental law.
b. Production
or
inspection
documents or things; order

of

Production or Inspection order one


issued bythe court commanding any person
in possession, custody or control of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the
return, to produce and permit their
inspection, copying or photographing by or
on behalf of the movant.

SEC. 13. Contempt


The following shall be punished by the
court for indirect contempt:
1. The respondent who refuses or unduly
delays the filing of a return, or who
makes a false return, or
2. Any person who disobeys or resists a
lawful process or order of the court.

Requisites for Issuance of the Order:


1. There must be a verified motion for

RELIEFS AVAILABLE UNDER THE WRIT

(Sec. 15)
1. Directing respondent to permanently
cease and desist from committing acts
or neglecting the performance of a duty
in violation of environmental laws
resulting in environmental destruction
or damage;
2. Directing the respondent public official,
government agency, private person or
entity to protect, preserve, rehabilitate
or restore the environment;
3. Directing the respondent public official,
government agency, private person or
entity to monitor strict compliance with
the decision and orders of the court;
4. Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
5. Such other reliefs which relate to the
right of the people to a balanced and
healthful ecology or to the protection,
preservation,
rehabilitation
or
restoration of the environment, EXCEPT
the award of damages to individual
petitioners.
SEC. 16. Appeal
Within 15 days from the date of notice of
the adverse judgment or denial of MR, any
party may appeal to the SC under Rule 45
of the Rules of Court. The appeal may raise
questions of fact.
SEC. 17. Institution of separate actions.
Thefiling of a petition for the issuance of
the writ of kalikasan shall NOT preclude
the filing ofseparate civil, criminal or
administrative actions.

RULE 8 MANDAMUS

WRIT

OF

CONTINUING

Continuing Mandamus
A writ issued by a court in an
environmental case directing any agency or
instrumentality of the government or officer
thereof to perform an act or series of acts
decreed by final judgment which shall
remain effective until judgment is fully
satisfied.
NOTE: It permits the court to retain
jurisdictionafter judgment in order to
ensure the successful implementation of
the reliefs mandated under the court's
decision. For this purpose, the court may
compel the submission of compliance
reports from the respondent government
agencies as well as avail of other means to
monitor compliance with its decision.
When is a petition for continuing
mandamus

When any agency or instrumentality of the


government or officer thereof:
1. Unlawfully neglects the performance of
an act which the law specifically enjoins
as a duty resulting from an office, trust
or station in connection with the
enforcement
or
violation
of
an
environmental law rule or regulation or
a right therein, or
2. Unlawfully excludes another from the
use or enjoyment of such right and
there is no other plain, speedy and
adequate remedy in the ordinary course
of law (Sec. 1).
CONTENTS OF THE PETITION

1. The petition shall allege the facts


with certainty, attaching thereto
supporting evidence.
2. It must specify that the petition
concerns an environmental law, rule or
regulation.
3. It must pray that judgment be rendered
commanding the respondent to do an
act or series of acts until the judgment
is fully satisfied, and to pay damages
sustained by the petitioner by reason of
the malicious neglect to perform the
duties of the respondent, under the law,
rules or regulations.
4. Certification of non-forum shopping.
Sec. 2. Where to file the petition
1. RTC where the actionable neglect or
omission occurred, or
2. CA, or
3. SC
NOTE: Both petitions for the issuance of
the writsof Kalikasan and Mandamus are
exempt from the payment of docket fees.
PROCEDURE:
1. Order to comment. If the petition
issufficient in form and substance,
the court shall issue the writ and
require the respondent to comment
on the petition within 10 days from
receipt of a copy thereof
(Sec. 4).
2. Expediting proceedings; TEPO.
The court inwhich the petition is
filed may issue such orders to
expedite the proceedings, and it
may also grant a TEPO for the
preservation of the rights of the
parties pending such proceedings

(Sec. 5).
3. Hearing. After the comment is filed or
thetime for the filing thereof has
expired, the court may hear the case
which shall be summary in nature or
require
the
parties
to
submit
memoranda. The petition shall be
resolved without delay within 60 days
from the date of the submission of the
petition for resolution (Sec. 6).
4. Judgment. If warranted, the court
shall grantthe privilege of the writ of
continuing mandamus and to grant
such other reliefs asmay be
warranted
resulting
from
the
wrongful or illegal acts of the
respondent.
The court shall require the respondent to
submit periodic reports detailing the
progress and execution of the judgment,
and the court may, by itself or through a
commissioner
or
the
appropriate
government agency, evaluate and monitor
compliance. The petitioner may submit its
comments or observations on the execution
of the judgment (Sec. 7).

Criminal Procedure

RULE 9 - PROSECUTION OF OFFENSES


SEC. 1. WHO MAY FILE
1. Any offended party
2. Peace officer, or
3. Any public officer charged with the
enforcement of an environmental
law
The complaint may be filed before the
proper officer in accordance with the Rules
of Court.

an offense; or
SEC. 3. Special prosecutor
In criminal cases, where there is no private
offended party, a counsel whose services
are offered by any person or organization
may be allowed by the court as special
prosecutor, with the consent of and subject
to the control and supervision of the public
prosecutor.

RULE 10 - PROSECUTION OF CIVIL


ACTIONS
SEC.1. INSTITUTION OF CRIMINAL AND
CIVIL ACTIONS
When a criminal action is instituted, the
civil action for the recovery of civil liability
arising from the offense charged, shall be
deemed instituted with the criminal action
UNLESS the complainant (1) waives the
civil action, (2) reserves the right to
institute it separately or (3) institutes the
civil action prior to the criminal action.
NOTE: Unless the civil action has
beeninstituted prior to the criminal action,
the reservation of the right to institute
separately the civil action shall be made
during arraignment.

RULE 11 - ARREST

INSTANCES OF LAWFUL WARRANTLESS


ARREST
A peace officer or an individual deputized
by the proper government agency may,
without a warrant, arrest a person:
1. When, in his presence, the person to be
arrested has committed, is actually
committing or is attempting to commit

2. When an offense has just been


committed, and he has probable cause
to believe based on personal knowledge
of facts or circumstances that the
person to be arrested has committed it.
Individuals deputized by the proper
government agency who are enforcing
environmental laws shall enjoy the
presumption of regularity under Section
3(m), Rule 131 of the Rules of Court when
effecting
arrests
for
violations
of
environmental laws.
SEC. 2. Warrant of arrest.All warrants
of arrestshall be accompanied by a certified
true copy of the information filed with the
issuing court.

RULE 12 - CUSTODY AND DISPOSITION


OF SEIZED ITEMS, EQUIPMENT,
PARAPHERNALIA, CONVEYANCES AND
INSTRUMENTS
SEC.1. Custody and disposition of seized
items
General rule: The custody and disposition
ofseized items shall be in accordance with
the applicable laws or rules promulgated by
the concerned government agency.
Exception: In the absence of applicable
laws orrules by the concerned government
agency, the procedure under this Rule shall
be observe (Sec.2).
PROCEDURE:
1. The apprehending officer having initial
custody and control of the seized items,
equipment, paraphernalia, conveyances
and
instruments
shall
physically
inventory and whenever practicable,
photograph the same in the presence of

the person from whom such items were


seized.
2. Thereafter, the apprehending officer
shall submit to the issuing court the
return of thesearch warrant within 5
days from date of seizure or in case of
warrantless arrest, submit within 5
days from date of seizure, the inventory
report, compliance report, photographs,
representative
samples
and
other
pertinent documents to the public
prosecutor for appropriate action.
3. Upon motion by any interested party,
the court may direct the auction sale of
seized items, equipment, paraphernalia,
tools or instruments of the crime. The
court shall, after hearing, fix the
minimum bid price based on the
recommendation of the concerned
government agency.
4. The auction sale shall be with notice to
the accused, the person from whom the
items were seized, or the owner thereof
and the concerned government agency.
5. The notice of auction shall be posted in
three conspicuous places in the city or
municipality
where
the
items,
equipment, paraphernalia, tools or
instruments of the crime were seized.
6. The proceeds shall be held in trust and
deposited
with
the
government
depository
bank
for
disposition
according to the judgment.
RULE 13 - PROVISIONAL REMEDIES
1. The remedy of attachment under
Rule 127 of the Rules of Court may
be availed of in environmental cases
(Sec. 1).
2. Environmental Protection Order (EPO)
and TEPO in criminal cases are also
available in accordance with Rule 2 of
these Rules (Sec.2).

RULE 14 - BAIL
SEC. 1. Bail, where filed
1. With the court where the case is
pending, or
2. In the absence or unavailability of the
judge thereof, with any regional trial
judge,
metropolitan
trial
judge,
municipal trial judge or municipal
circuit trial judge in the province, city or
municipality.
3. If the accused is arrested in a
province, city or municipality other
than where the case is pending, bail
may also be filed with any RTC of
said place, or if no judge thereof is
available, with any metropolitan
trial judge, municipal trial judge or
municipal circuit trial judge therein.
NOTE: If the court grants bail, the court
may issuea hold-departure order in
appropriate cases.
SEC. 2. Duties of the court.Before
granting theapplication for bail, the judge
must read the information in a language
known to and understood by the accused
and require the accused to sign a written
undertaking, as follows:
1. To appear before the court that issued
the warrant of arrest for arraignment
purposes on the date scheduled, and if
the accused fails to appear without
justification on the date of arraignment,
accused WAIVES the reading of the
information and AUTHORIZES the court
to enter a plea of not guilty on behalf of
the accused and to set the case for trial;
2. To appear whenever required by the
court where the case is pending;
and
3. To waive the right of the accused to be

present at the trial, and upon failure of


the
accused
to
appear
without
justification and despite due notice, the
trial may proceed inabsentia.

RULE 15 - ARRAIGNMENT AND PLEA

SEC. 1. Arraignment
The court shall set the arraignment within
15 days from the time it acquires
jurisdiction over the accused, with notice to
the public prosecutor and offended party or
concerned government agency.

SEC.5. Agreements or admissions


All agreements or admissions made or
entered during the pre-trial conference
shall be:
1. Reduced in writing and
2. Signed by the accused and counsel
NOTE: The pre-trial agreements covering
thematters referred to in Sec. 1, Rule 118 of
the Rules of Court shall be approved by the
court.
SEC. 7. Pre-trial order.The court shall
issue apre-trial order within 10 days after
the termination of the pre-trial.

SEC. 2. Plea-bargaining
On the date of arraignment, the court shall
consider plea-bargaining arrangements.
Where the prosecution and offended party
or concerned government agency agree to
the plea offered by the accused, the court
shall:
1. Issue an order which contains the pleabargaining arrived at;
2. Proceed to receive evidence on the civil
aspect of the case, if any; and
3. Render and promulgate judgment of
conviction, including the civil liability
for damages.

RULE 16 - PRE-TRIAL
SEC. 1. Setting of pre-trial conference
After the arraignment, the court shall set
the pre-trial conference within 30 days.
It may refer the case to the clerk of court for
a preliminary conference to be set at least 3
days prior to pre-trial.

RULE 17 - TRIAL
SEC. 1. Continuous trial
The court shall conduct continuous trial
which shall not exceed 3 months from the
date of the issuance of the pre-trial order.

Affidavit in lieu of direct examination


Affidavit in lieu of direct examination shall
be used, subject to cross-examination and
the right to object to inadmissible portions
of the affidavit.

Submission of memoranda
The court may require the parties to submit
their memoranda and if possible, in
electronic form, within a non-extendible
period of 30 days from the date the case is
submitted for decision.
With or without any memoranda filed, the
court shall have a period of 60 days to
decide the case counted from the last day of
the 30-day period to file the memoranda.

SEC. 2. Summary hearing


SEC. 4. Disposition period
The court shall dispose the case within a
period of 10 months from the date of
arraignment.
SEC. 5. Pro bono lawyers
The court shall require the IBP to provide
probono lawyers for the accused:
1. If the accused cannot afford the services
of counsel, or
2. There is no available public attorney,

The hearing on the defense of a SLAPP shall


be summary in nature.
NOTE: The burden of proof required of
theplaintiff and defendant is the same as
that provided in Sec. 3, Rule 6.
SEC. 3. Resolution
If the court denies the motion, the court
shall immediately proceed with the
arraignment of the accused.
Evidence
RULE 20 - PRECAUTIONARY PRINCIPLE

RULE 18 - SUBSIDIARY LIABILITY


SECTION 1. Subsidiary liability
The court may, by motion of the person
entitled to recover under judgment, enforce
such subsidiary liability against a person or
corporation subsidiarily liable under Art.
102 and Article 103 of the Revised Penal
Code:
1. In case of conviction of the accused and
2. Subsidiary liability is allowed by law

RULE 19 - STRATEGIC LAWSUIT


AGAINST PUBLIC PARTICIPATION IN
CRIMINAL CASES
SEC. 1. Motion to dismiss
Upon the filing of an information in court
and before arraignment, the accused may
file a motion to dismiss on the ground that
the criminal action is a SLAPP.

Precautionary Principle states that when


humanactivities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible
BUT uncertain, actions shall be taken to
avoid or diminish that threat.
SEC. 1. Applicability
When there is a lack of full scientific
certainty in establishing a causal link
between human activity and environmental
effect,
the
court
shall
apply
the
precautionary principle in resolving the
case before it.
Preference over the
constitutional right
The constitutional right of the people to a
balanced and healthful ecology shall be
given the benefit of the doubt.
NOTE: In this context, the precautionary
principlefinds direct application in the
evaluation of evidence in cases before the
courts.
By applying the precautionary principle,

the court may construe a set of facts as


warranting either judicial action or
inaction, with the goal of preserving and
protecting the environment.

be admissible when authenticated by the


(1) person who took the same, (2) by some
other person present when said evidence
was taken, or (3) by any other person
competent to testify on the accuracy
thereof.

SEC. 2. Standards for application


In applying the precautionary principle, the
following factors, among others, may be
considered:
1. Threats to human life or health;
2. Inequity
to
present
or
future
generations; or
3. Prejudice to the environment without
legal consideration of the environmental
rights of those affected.

SEC. 2. Entries in official records


Entries in official records made in the
performance of his duty by a public officer
of the Philippines, or by a person in
performance of a duty specially enjoined by
law, are prima facieevidence of the facts
therein stated.

RULE 21 - DOCUMENTARY EVIDENCE


SEC. 1. Photographic, video and similar
evidence
Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife
by-products or derivatives, forest products
or mineral resources subject of a case shall

RULE 22 - FINAL PROVISIONS


SEC. 2. Application of the Rules of Court
The Rules of Court shall apply in a
suppletorymanner, except as otherwise
provided herein.

ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004


(R. A. No. 9285)
CONSTITUTIONAL BASIS:
It is Paragraph 2, Section 3, Article XIII of
the 1987 Constitution which states that
"The State shall promote the principle of
shared responsibility between workers and
employers and the preferential use of
voluntary modes in settling disputes,
including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace.
ALTERNATIVE DISPUTE RESOLUTION
SYSTEM
Any process or procedure used to resolve a
dispute or controversy, other than by
adjudication of a presiding judge of a court
or an officer of a government agency, in
which a neutral third party participates to
assist in the resolution of issues, which
includes
arbitration,
mediation,
conciliation, early neutral evaluation, minitrial, or any combination thereof.
Its main purposes are the following: first,
for prompt disposition of cases, second, to
ensure impartial justice to both parties and
last is to unclog court dockets.
RA 876 as amended by RA 9285
a. Parties can go to arbitration without
going through the courts.
b. Parties can, and should, go to court to
question the validity, enforceability or
workability of the arbitration agreement;
no competence-competence principle
c. Pendency of court proceedings NOT a
ground to suspend arbitration
d. Issues on validity, enforceability and
workability of arbitration agreement are

NOT issues during the challenge of


award proceedings

Declaration of Policy
a. To actively promote party autonomy in
the resolution of disputes
b. Towards this end, the State shall
encourage and actively promote the use
of Alternative Dispute Resolution (ADR)
as an important means to achieve
speedy and impartial justice and declog
court dockets (Sec. 2).
ADVANTAGES OF ARBITRATION
1. The availability of experts on
technical matters involved in a
dispute.
2. There is an Speedier process of
arbitration in resolving a case
3. Less expenses on the part of the
parties.
4. Trade contracts or relationship
between the parties are not
ruptured by arbitration.
5. Privacy attained in arbitration
6. Filial or friendly atmosphere
7. Flexibility of proceedings, arbitral
proceedings are not bound by the
strict rules of evidence.
COMMERCIAL ARBITRATION
An arbitration is "commercial" if it covers
matters arising from all relationships of a
commercial nature, whether contractual or
not. Relationships of a transactions: any
trade transaction for the supply or
exchange of goods or services; distribution

agreements;
construction
of
works;
commercial representation or agency;
factoring; leasing, consulting; engineering;
licensing; investment; financing; banking;
insurance; joint venture and other forms of
industrial or business cooperation; carriage
of goods or passengers by air, sea, rail or
road (Sec. 21).
MEDIATION
A voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assist
the parties in reaching a voluntary
agreement regarding a dispute.
MODEL LAW
The
Model
Law
on
International
Commercial Arbitration adopted by the UN
Commission on International Trade Law on
21 June 1985
New York Convention
The UN Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
approved in 1958 and ratified by the
Philippine Senate under Senate Resolution
No. 71
Inapplicability of the Act
This Act shall not apply to resolution or
settlement of the following:

2.
3.
4.
5.
6.
7.
8.

1. labor disputes covered by P. D.


442 orthe Labor Code of
Philippines., as amended and
IRR
the civil status of persons the
validity of a marriage
any ground for legal separation
the jurisdiction of courts
future legitime
criminal liability
those which by law cannot
compromised

No.
the
its

be

This Act shall not be interpreted to repeal,

amend or modify the jurisdiction of the


Katarungang Pambarangay under R. A. No.
7160 (Sec. 53).
MEDIATION
Covers voluntary mediation, whether ad
hoc or institutional, other than courtannexed. The term "mediation' shall include
conciliation
Confidentiality
of
Information

Informationobtained through mediation


proceedings shall be subject to the following
principles and guidelines:
a. Information obtained through mediation
shall be privileged and confidential.
b. A party, a mediator, or a nonparty
participant may refuse to disclose and
may prevent any other person from
disclosing a mediation communication.
c. Confidential Information shall not be
subject to discovery and shall be
inadmissible
if
any
adversarial
proceeding, whether judicial or quasijudicial.
d. The following persons involved or
previously involved in a mediation may
not be compelled to disclose confidential
information obtained during mediation:
1. parties to the dispute
2. mediator or mediators
3. counsel for the parties
4. nonparty participants
5. any persons hired or engaged in
connection with the mediation as
secretary, stenographer, clerk or
assistant
6. any other person who obtains or
possesses confidential information
by reason of his/her profession.
e. The protections of this Act shall
continue to apply even of a mediator is
found to have failed to act impartially.
f. A mediator may not be called to testify
to provide information gathered in

mediation
(Sec. 9).
Waiver of Confidentiality
A privilege arising from the confidentiality
of information may be waived in a record, or
orally during a proceeding by the mediator
and themediation parties.
A privilege arising from the confidentiality
of information may likewise be waived by a
non party participant if the information is
provided by such nonparty participant.
A person who discloses confidential
information shall be precluded from
asserting the privilege under Sec. 9 to bar
disclosure of the rest of the information
necessary to a complete understanding of
the previously disclosed information.
A person who discloses or makes a
representation about a mediation is
preclude from asserting the privilege under
Sec.
9,
to
the
extent
that
the
communication prejudices another person
in the proceeding and it is necessary for the
person prejudiced to respond to the
representation of disclosure (Sec. 10).
Exceptions:
a. There is no privilege against
disclosure under Sec. 9 if mediation
communication is:
1. in an agreement evidenced by a
record authenticated by all parties to
the agreement;
2. available to the public or that is
made during a session of a
mediation which is open, or is
required by law to be open, to the
public;
3. a threat or statement of a
plan to inflict bodily injury
or commit a crime of
violence;

4. internationally used to plan a crime,


attempt to commit, or commit a
crime, or conceal an ongoing crime
or criminal activity;
5. sought or offered to prove or
disprove
abuse,
neglect,
abandonment, or exploitation in a
proceeding in which a public agency
is protecting the interest of an
individual protected by law; but this
exception does not apply where a
child protection matter is referred to
mediation by a court or a public
agency participates in the child
protection mediation;
6. sought or offered to prove or
disprove a claim or complaint of
professional
misconduct
or
malpractice filed against mediator in
a proceeding; or
7. sought or offered to prove or
disprove a claim of complaint
of professional misconduct of
malpractice filed against a
party, nonparty participant,
or representative of a party
based on conduct occurring
during a mediation.
b. There is no privilege under Section 9 if a
court or administrative agency, finds,
after a hearing in camera, that the
party
seeking
discovery
of
the
proponent of the evidence has shown
that the evidence is not otherwise
available, that there is a need for the
evidence that substantially outweighs
the interest in protecting confidentiality,
and the mediation communication is
sought or offered in:
1. a court proceeding involving
a crime or felony; or
2. a proceeding to prove a claim
or defense that under the
law is sufficient to reform or
avoid a liability on a contract
arising out of the mediation.

c. A mediator may not be compelled to


provide evidence of a mediation
communication or testify in such
proceeding.
d. If a mediation communication is not
privileged under an exception in
subsection (a) or (b), only the
portion of the communication
necessary for the application of the
exception for nondisclosure may be
admitted.
The
admission
of
particular evidence for the limited
purpose of an exception does not
render that evidence, or any other
mediation
communication,
admissible for any other purpose.
Prohibited Mediator Reports
A mediator may not make a report,
assessment, evaluation, recommendation,
finding, or other communication regarding
a mediation to a court or agency or other
authority that make a ruling on a dispute
that is the subject of a mediation, except:
1. Where the mediation occurred or
has terminated, or where a
settlement was reached.
2. As permitted to be disclosed under Sec.
13
(Sec. 12).
Mediator's Disclosure and Conflict of
Interest
a. Before accepting a mediation, an
individual who is requested to serve
as a mediator shall:
1. make an inquiry that is
reasonable
under
the
circumstances
to
determinate whether there
are any known facts that a
reasonable individual would
consider likely to affect the
impartiality of the mediator,

including a financial or
personal interest in the
outcome of the mediation
and any existing or past
relationship with a party or
foreseeable participant in the
mediation; and
2. disclosure to the mediation
parties any such fact known
or learned as soon as is
practical before accepting a
mediation.
b. If a mediation learns any fact described
in par. (a)(1) of this section after
accepting a mediation, the mediator
shall disclose it as soon as practicable.
At the request of a mediation party, an
individual who is requested to serve as
mediator
shall
disclose
his/her
qualifications to mediate a dispute. (Sec.
13)
Enforcement
of
SettlementAgreement

Mediated

a. A
settlement
agreement
following
successful mediation shall be prepared
by the parties with the assistance of
their respective counsel, if any, and by
the mediator.
b. The parties and their respective
counsels shall endeavor to make the
terms and condition thereof complete
and make adequate provisions for the
contingency
of
breach
to
avoid
conflicting
interpretations
of
the
agreement.
c. The parties and their respective
counsels, if any, shall sign the
settlement agreement. The mediator
shall certify that he/she explained the
contents of the settlement agreement to
the parties in a language known to
them.

d. If the parties so desire, they may deposit


such settlement agreement with the
appropriate Clerk of a Regional Trial
Court of the place where one of the
parties resides. Where there is a need to
enforce the settlement agreement, a
petition may be filed by any of the
parties with the same court, in which
case, the court shall proceed summarily
to hear the petition, in accordance with
such rules of procedure as may be
promulgated by the Supreme Court.
The parties may agree in the settlement
agreement that the mediator shall
become a sole arbitrator for the dispute
and shall treat the settlement agreement
as an arbitral award which shall be
subject to enforcement under R.A. No.
876, otherwise known as the Arbitration
Law, notwithstanding the provisions of
E.O. No. 1008 for mediated dispute
outside of the CIAC.
OTHER ADR FORMS
Referral of Dispute to other ADR Forms
The parties may agree to refer one or more
or all issues arising in a dispute or during
its pendency to other forms of ADR such as
but not limited to
(a) the evaluation of a third person or (b) a
mini-trial, (c) mediation-arbitration, or a
combination thereof. The provisions on
Mediation as provided in this Act applies
except where it is combined with arbitration
in which case it shall likewise be governed
by the provisions on Domestic Arbitration.
MEDIATION-ARBITRATION or Med-Arb
A step dispute resolution process involving
both mediation and arbitration
MINI-TRIAL

A structured dispute resolution method in


which the merits of a case are argued
before a panel comprising senior decision
makers with or without the presence of a
neutral third person after which the parties
seek a negotiated settlement
INTERNATIONAL COMMERCIAL
ARBITRATION
International commercial arbitration shall
be governed by the Model Law.
The court shall have due regard to the
policy of the law in favor of arbitration.
Where action is commenced by or against
multiple parties, one or more of whom are
parties who are bound by the arbitration
agreement although the civil action may
continue as to those who are not bound by
such arbitration agreement (Sec. 25).
The parties are free to agree on the
language or languages to be used in the
arbitral
proceedings.
Failing
such
agreement, the language to be used shall be
English in international arbitration, and
English or Filipino for domestic arbitration,
unless the arbitral tribunal shall determine
a different or another language or
languages to be used in the proceedings.
Legal Representation in International
Arbitration
In international arbitration conducted in
the Philippines, a party may be presented
by any person of his choice. Provided, that
such representative, unless admitted to the
practice of law in the Philippines, shall not
be authorized to appear as counsel in any
Philippine court, or any other quasi-judicial
body whether or not such appearance is in
relation to the arbitration in which he
appears (Sec. 22).
Confidential of Arbitration Proceedings

The arbitration proceedings, including the


records, evidence and the arbitral award,
shall be considered confidential and shall
not be published except (1) with the
consent of the parties, or (2) for the limited
purpose of disclosing to the court of
relevant documents in cases where resort to
the court is allowed herein. Provided,
however, that the court in which the action
or the appeal is pending may issue a
protective order to prevent or prohibit
disclosure of documents or information
containing secret processes, developments,
research and other information where it is
shown that the applicant shall be
materially prejudiced by an authorized
disclosure thereof.
Referral to Arbitration
A court before which an action is brought in
a matter which is the subject matter of an
arbitration agreement shall, if at least one
party so requests not later that the pre-trial
conference, or upon the request of both
parties thereafter, refer the parties to
arbitration unless it finds that the
arbitration agreement is null and void,
inoperative or incapable of being performed.
Grant of Interim Measure of Protection
a. It is not incompatible with an
arbitration agreement for a party to
request, before constitution of the
tribunal, from the RTC an interim
measure of protection and for the RTC
to grant such measure.
After constitution of the arbitral tribunal and
during arbitral proceedings, a request for
aninterim measure of protection or
modification thereof, may be made with the
arbitral tribunal or to the extent that the
arbitral tribunal has no power to act or is
unable to act effectively, the request may be
made with the RTC. The arbitral tribunal is

deemed
constituted
when
the
sole
arbitrator or the third arbitrator who has
been
nominated,
has
accepted
the
nomination and written communication of
said nomination and acceptance has been
received by the party making request.
b. The following rules on interim or
provisional relief shall be observed:
e. Any party may request that provision
relief be granted against the adverse
party:
ii. Such relief may be granted: (Ir SEA)
2.1.
To prevent irreparable
loss or injury:
2.2.
To provide
security for the
performance of
any obligation;
2.3.
To
produce or
preserve any
evidence; or
2.4.
To compel any other
appropriate act or omission
3. The order granting provisional relief
may be conditioned upon the
provision of security or any act or
omission specified in the order.
4. Interim or provisional relief is
requested by written application
transmitted by reasonable means to
the RTC or arbitral tribunal as the
case may be and the party against
whom the relief is sought, describing
in appropriate detail the precise
relief, the party against whom the
relief is requested, the grounds for
the relief, and evidence supporting

the request.
5. The order shall be binding upon the
parties.
6. Either party may apply with the RTC
for assistance in Implementing or
enforcing
an
interim
measure
ordered by an arbitral tribunal.
7. A party who does not comply with
the order shall be liable for all
damages
resulting
from
noncompliance,
including
all
expenses, and reasonable attorney's
fees, paid in obtaining the order's
judicial enforcement (Sec. 28).
Further Authority for Arbitrator to Grant
Interim
Measure of Protection
Unless otherwise agreed by the parties, the
arbitral tribunal may, at the request of a
party, order any party to take such interim
measures of protection as the arbitral
tribunal may consider necessary in respect
of the subject matter of the dispute
following the rules in Sec. 28, par. 2.

preservation, inspection of property that is


the subject of the dispute in arbitration
(Sec. 29, RA 9285).
Either party may apply with the RTC for
assistance in implementing or enforcing an
interim measures ordered by an arbitral
tribunal.
Place of Arbitration
The arbitration shall be conducted in the
place agreed upon by the parties. Failing
such agreement, the place of arbitration
shall be in Metro Manila, unless the arbitral
tribunal decides on a different place due to
certain
circumstances
such
as the
convenience of the parties (Sec. 30,RA
9285).
The arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it
considers appropriate for consultation
among its members, for hearing witnesses,
experts, or the parties, or for inspection of
goods, other property or documents.

Such interim measures may include but


shall notbe limited to: (PAPI)
1. preliminary injunction directed against
aparty
2. appointment of receivers or detention
3. preservation
4. inspection of property that is
subject ofthe dispute in arbitration

DOMESTIC ARBITRATION
RA 876 Domestic Arbitration Law:
That which is not international as defined
in Article 3 of the Model Law.

the

NOTE: Such interim measures may include


butshall not be limited to preliminary
injunction directed against a party,
appointment of receivers or detention,

Domestic arbitration shall continue to be


governed by R.A. No. 876 or Arbitration Law
as amended.
The Model Law and Section 22 to 31 of
provisions on International Commercial
Arbitration shall apply to domestic

arbitration.

Construction

FORM

Dispute
The RTC which a construction dispute is
filed shall, upon becoming aware, not later
than the pretrial conference, that the
parties had entered into an arbitration to be
conducted by the CIAC, unless both
parties, assisted by their respective
counsel, shall submit to the regional trial
court a written agreement exclusive for the
Court, rather than the CIAC, to resolve the
dispute (Sec. 39).

A contract to arbitrate a controversy


thereafter arising between the parties, as
well as a submission to arbitrate an existing
controversy shall be in writing and
subscribed by the party sought to be
charged, or by his lawful agent.

ARBITRATION OF CONSTRUCTION
DISPUTES
Governed by E.O. No. 1008, otherwise
known as the Constitution Industry
Arbitration Law
By written agreement of the parties to a
dispute, an arbitrator may act as mediator
and a mediator may act as arbitrator. The
parties may also agree in writing that,
following a successful mediation, the
mediator shall issue the settlement
agreement in the form of an arbitral award.
Coverage of the Law
Construction disputes which fall within the
original and exclusive jurisdiction of the
Construction
Industry
Arbitration
Commission (the "Commission") shall
include those between or among parties to,
or who are otherwise bound by, an
arbitration agreement, directly or by
reference whether such parties are project
owner, contractor, subcontractor, quantity
surveyor, bondsman or issuer of an
insurance policy in a construction project.
The Commission shall continue to exercise
original and exclusive jurisdiction over
construction
disputes
although
the
arbitration is "commercial" pursuant to
Section 21 of this Act.
Court

to

Dismiss

Case

Involving

JUDICIAL REVIEW OF ARBITRAL


AWARDS
A. DOMESTIC AWARDS
FORMS AND CONTENTS
The arbitral award shall be made in writing
and shall be signed and acknowledged by
majority of the arbitrators if more than one;
and by the sole arbitrator, if there is only
one. The arbitrators in their award may
grant any remedy or relief which they deem
just and equitable and within the scope of
the agreement of the parties, which shall
include, but not be limited to, the specific
performance of a contract.

In the event that the parties to arbitration


have, during the course of such arbitration,
settled their dispute, they may request to
the arbitrators that such settlement be
embodied in an award which shall be
signed by the arbitrators. No arbitrator
shall act as a mediator in any proceeding in
which he is acting as an arbitrator; and all
negotiations towards settlement of the
dispute must take place without the
presence of the arbitrators. The arbitrators
shall have the power to decide only those
matters which have been submitted to
them. The terms of the award shall be

confined to such disputes. The arbitrators


shall have the power to assess in their
award the expenses of any party against
another party, when such assessment shall
be deemed necessary (Sec. 20,RA 876).
Confirmation of Award
At any time within 1 month after the
arbitral award is made, any party to the
controversy subject of arbitration may file a
motion to the court having jurisdiction for
an order confirming the award. The court
must grant such order unless the award is
vacated, modified or corrected. Notice of
such motion must be served upon the
adverse party or his attorney. A domestic
arbitral award when confirmed shall be
enforced in the same manner as final and
executory decisions of the RTC.
Vacation Award
A party to a domestic arbitration may
question the arbitral award with the
appropriate RTC in accordance with the
rules of procedure to be promulgated by the
SC only on those grounds enumerated in
Sec. 25 of R. A. No. 876. Any other ground
raised against a domestic arbitral award
shall be disregarded by the RTC (Sec. 41).
B. FOREIGN ARBITRAL AWARDS
The New York Convention shall govern the
recognition and enforcement of arbitral
awards covered by the said Convention.
Foreign
arbitral
awards
cannot
be
implemented immediately. Article 36 of the
UNCITRAL Model Law specifies the grounds
for an arbitral award to be recognized by a
competent court. It can be gleaned that the
concept of a final and binding arbitral
award is similar to judgments or awards
given by some of our quasi- judicial bodies,
like the NLRC, whose final judgments are
stipulated to be final and binding, but not

immediately executory in the sense that


they may still be judicially reviewed, upon
the instance of any party. Therefore, the
finalforeign arbitral awards are similarly
situated in that they need first to be
confirmed by the RTC. Such arbitration
clause does not operate to oust the court of
its jurisdiction (Korea TechnologiesLtd v.
Lerma, GR No. 143581, 7 January 2008).
The recognition and enforcement of such
arbitral awards shall be filled with RTC in
accordance with the rules of procedure to
be promulgated by the SC.
The applicant shall establish that the
country in which foreign arbitration award
was made is a party to the NY Convention.
If the application for rejection or
suspension of enforcement of an award has
been made, the regional trial court may, if
it considers it proper, vacate its decision
and may also, on the application of the
party claiming recognition or enforcement
of the award, order the party to provide
appropriate security.
Recognition and Enforcement of Foreign
Arbitral

Awards Not Covered by the NY


Convention
The recognition and enforcement of foreign
arbitral awards not covered by the New York
Convention shall be done in accordance
with procedural rules to be promulgated by
the SC.
The Court may, grounds of comity and
reciprocity, recognize and enforce a nonconvention award as a convention award.
A foreign arbitral award when confirmed by
a court of a foreign country, shall be
recognized and enforced as a foreign

arbitral award and not a judgment of a


foreign court. (Sec. 44)
A foreign arbitral award shall be enforced
as a foreign arbitral award and not as a
judgment of a foreign court.
A foreign arbitral award, when confirmed by
the regional trial court, shall be enforced in
the same manner as final and executory
decisions of courts of law of the Philippines.

A party to a foreign arbitration proceeding


may oppose an application for recognition
and enforcement of the arbitral award in
accordance with the procedural rules to be
promulgated by the SC only on those
grounds enumerated under Article V of the
NY Convention. Any other ground raised
shall be disregarded by the RTC.

Appeal from Court Decisions on Arbitral


Awards
A decision of the regional trial court
confirming,
vacating,
setting
aside,
modifying or correcting an arbitral award
may be appealed to the Court of Appeals in
accordance with the rules of procedure to
be promulgated by the Supreme Court.

The losing party who appeals from the


judgment of the court confirming an
arbitral award shall required by the
appellant court to post counter bond
executed in favor of the prevailing party
equal to the amount of the award in
accordance
with
the
rules
to
be
promulgated by the SC (Sec. 46).

Venue and Jurisdiction


Proceedings

for

recognition

and

enforcement of an arbitration agreement or


for vacation, setting aside, correction or
modification of an arbitral award, and any
application with a court for arbitration
assistance and supervision shall be deemed
as special proceedings and shall be filed
with the RTC where:
1. Arbitration proceedings are conducted
2. The asset to be attached or levied
upon, or the act to be enjoined is
located
3. Any of the parties to the dispute
resides or has his place of business
or
4. In the National Judicial Capital Region,
at the option of the applicant.
Office
for
Resolution.

Alternative

Dispute

An attached agency to the Department of


Justice (DOJ) which shall have a
Secretariat to be headed by an executive
director. The executive director shall be
appointed by the President of the
Philippines (Sec. 49).
Powers and Functions (TUD- FA)
1. To formulate standards for the training
of the ADR practitioners and service
providers;
2. To
certify
that
such
ADR
practitioners and ADR service
providers have undergone the
professional training provided by
the office;
3. To coordinate the development,
implementation, monitoring, and
evaluation of government ADR
programs;

4. To charge fees for their services; and

5. To perform such acts as may be


necessary to carry into effect the
provisions of this Act (Sec. 50).

SPECIAL RULES OF COURT ON ATERNATIVE DISPUTE RESOLUTION


(A.M. No. 07-11-08)
following cases:
Under the Special Rules:
Awards are NOT appealable
Awards are NOT subject to merits review
unless public policy is involved
Judges cannot substitute their decisions
over that made by the arbitral tribunal

1. Relief on the issue of Existence, Validity,


or Enforceability of the Arbitration
Agreement; (Rule 3)
2. Referral
to
Alternative
Resolution ("ADR"); (Rule 4)

Dispute

3. Interim Measures of Protection; (Rule 5)

Rule 65 cannot be invoked against


arbitral awards

4. Appointment of Arbitrator; (Rule 6)

No TRO; no injunction (as a general


proposition)

5. Challenge to Appointment of Arbitrator;


(Rule 7)

Federal
pre-emption
doctrine
in
domestic arbitration under RA 876
(courts first rule on the validity,
enforceability
and
workability
of
arbitration agreement) is eliminated by
also making competence-competence
applicable

6. Termination of Mandate of Arbitrator;


(Rule 8)

(Rule 2.2)

9. Recognition and Enforcement or Setting


Aside of an Award in International
Commercial Arbitration; (Rule 12)

Issues on validity, enforceability and


workability of arbitration agreement are
provided as additional grounds to vacate
domestic awards (Rule 11.4)
PART I
GENERAL PROVISIONS AND POLICIES
RULE 1: GENERAL PROVISIONS

Rule 1.1. Subject matter and governing


rules
The Special Rules of Court on Alternative
Dispute Resolution (the "Special ADR
Rules") shall apply to and govern the

7. Assistance in Taking Evidence; (Rule 9)


8. Confirmation, Correction or Vacation of
Award in Domestic Arbitration; (Rule 11)

10. Recognition and Enforcement


Foreign Arbitral Award; (Rule 13)

of

11. Confidentiality/Protective Orders; (Rule


10) and
12. Deposit and Enforcement of Mediated
Settlement Agreements. (Rule 15)
All proceedings under the Special ADR
Rules are special proceedings.

Rule 1.3. Summary proceedings in


certain cases

The proceedings in the following instances


are summary in nature and shall be
governed by this provision:
1. Judicial Relief Involving the Issue of
Existence, Validity or Enforceability of
the Arbitration Agreement;
2. Referral to ADR;
3. Interim Measures of Protection;

3. Motion for new trial or for reopening of


trial;
4. Petition for relief from judgment;
5. Motion for extension, except in cases
where an ex-parte temporary order of
protection has been issued;
6. Rejoinder to reply;
7. Motion to declare a party in default; and
8. Any
other
pleading
specifically
disallowed under any provision of the
Special ADR Rules.

4. Appointment of Arbitrator;
5. Challenge to Appointment of Arbitrator;
6. Termination of Mandate of Arbitrator;
7. Assistance in Taking Evidence;
8. Confidentiality/Protective Orders; and
9. Deposit
and
Enforcement
of
Mediated Settlement Agreements.
Summary Hearing
In all cases, as far as practicable, the
summary hearing shall be conducted in
one (1) day and only for purposes of
clarifying facts. EXCEPT in cases involving
Referral to ADR or Confidentiality/
Protective Orders made through motions, it
shall be the court that sets the petition for
hearing within 5 days from the lapse of the
period for filing the opposition or comment.
Resolution
The court shall resolve the matter within a
period of 30 days from the day of the
hearing.

PROHIBITED PLEADINGS/ MOTIONS/


PETITIONS
1. Motion to dismiss;
2. Motion for bill of particulars;

Rule 1.8. Service and filing of


pleadings, motions and other papers in
non-summary proceedings
The initiatory pleadings shall be filed
directly with the court. The court will then
cause the initiatory pleading to be served
upon the respondent by personal service or
courier. Where an action is already
pending, pleadings, motions and other
papers shall be filed and/or served by the
concerned party by personal service or
courier. Where courier services are not
available, resort to registered mail is
allowed.

Rule 1.9. No summons.


In cases covered by the Special ADR Rules,
a court acquires authority to act on the
petition
or
motion
upon
proof
of
jurisdictional facts, i.e., that the respondent
was furnished a copy of the petition and the
notice of hearing.
The technical rules on service of summons
do not apply to the proceedings under the
Special ADR Rules.

Rule 1.12. Applicability of Part II on


Specific

Court Relief. - Part II of the Special ADR


Rules onSpecific Court Relief, insofar as it
refers to arbitration, shall also be
applicable to other forms of ADR.

3. The referral would


multiplicity of suits;
4. The arbitration proceeding
commenced;

result

in

has

not

5. The place of arbitration is in a foreign


country;
RULE 2: STATEMENT OF POLICIES

Rule 2.1. General Policies


To actively promote party autonomy
in the resolution of disputes

Towards this end, the State shall


encourage and actively promote the use
of Alternative Dispute Resolution (ADR)
as an important means to achieve
speedy and impartial justice and declog
court dockets.

NOTE: The court shall exercise the power


ofjudicial review as provided by these
Special ADR Rules. Courts shall intervene
only in the cases allowed by law or these
Special ADR Rules.

Rule 2.2. Policy on arbitration


(A) Where the parties have agreed to submit
their dispute to arbitration, courts shall
refer the parties to arbitration pursuant to
R. A. No. 9285 bearing in mind that such
arbitration agreement is the law between
the parties and that they are expected to
abide by it in good faith. Further, the
courts shall not refuse to refer parties to
arbitration for reasons including, but not
limited to, the following:
1. The referral tends to oust a court of
its jurisdiction;
2. The court is in a better position to
resolve the dispute subject of
arbitration;

6. One or more of the issues are legal and


one or more of the arbitrators are not
lawyers;
7. One or more of the arbitrators are not
Philippine nationals; or
8. One or more of the arbitrators are
alleged not to possess the required
qualification under the arbitration
agreement or law.

(B) Where court intervention is allowed


under ADR Laws or the Special ADR Rules,
courts shallNOT refuse to grant relief, for
any of thefollowing reasons:

1. Prior to the constitution of the arbitral


tribunal, the court finds that the
principal action is the subject of an
arbitration agreement; or
2. The principal action is already pending
before an arbitral tribunal.

The Special ADR Rules recognize the


principle
ofcompetence-competence,
which means that thearbitral tribunal may
initially rule on its own jurisdiction,
including any objections with respect to the
existence or validity of the arbitration
agreement or any condition precedent to

the filing of a request for arbitration.

The Special ADR Rules recognize the


principle
ofseparability
of
the
arbitration clause, whichmeans that said
clause shall be treated as an agreement
independent of the other terms of the
contract of which it forms part. A decision
that the contract is null and void shall not
entail ipso jure the invalidity of the
arbitration clause.

Rule 2.3. Rules governing


arbitral proceedings
The parties are free to agree on the
procedure to be followed in the conduct of
arbitral
proceedings.
Failing
such
agreement, the arbitral tribunal may
conduct arbitration in the manner it
considers appropriate.

tribunal is constituted, the court must


exercise judicialrestraint and defer to the
competence orjurisdiction of the arbitral
tribunal by allowing the arbitral tribunal
the first opportunity to rule upon such
issues.
Where the court is asked to make a
determination of whether the arbitration
agreement is null and void, inoperative or
incapable of being performed, under this
policy of judicial restraint, the court must
make no more than a prima facie
determination of that issue.
Unless the court, pursuant to such prima
facie determination, concludes that the
arbitration agreement is null and void,
inoperative or incapable of being performed,
the court must suspend the action before it
and refer the parties to arbitration
pursuant to arbitration agreement.

Rule 2.5. Policy on mediation


Rule 2.4. Policy implementing
competence-competence principle
The arbitral tribunal shallbe accorded the
first opportunity or competence to rule on
the issue of whether or not it has the
competence or jurisdiction to decide a
dispute submitted to it for decision,
including any objection with respect to the
existence or validity of the arbitration
agreement.

When a court is asked to rule upon issue/s


affecting the competence or jurisdiction of
an(WHATTTT??)

When a court is asked to rule upon issue/s


affecting the competence or jurisdiction of
an arbitral tribunal in a dispute brought
before it, either before or after the arbitral

The Special ADRRules do not apply to


Court-Annexed Mediation, which shall be
governed by issuances of the Supreme
Court.
Where the parties have agreed to submit
their dispute to mediation, a court before
which that dispute was brought shall
suspend the proceedings and direct the
parties to submit their dispute to private
mediation. If the parties subsequently
agree, however, they may opt to have their
dispute settled through Court-Annexed
Mediation.

Rule 2.6. Policy on ArbitrationMediation or Mediation-Arbitration


No arbitrator shall act asa mediator in any
proceeding in which he is acting as

arbitrator; and all negotiations towards


settlement of the dispute must take place
without the presence of that arbitrator.
Conversely, no mediator shall act as
arbitrator in any proceeding in which he
acted as mediator.

Rule 2.7. Conversion of a settlement


agreement to an arbitral award
Where the parties tomediation have agreed
in the written settlement agreement that
the mediator shall become the sole
arbitrator for the dispute or that the
settlement agreement shall become an
arbitral award, the sole arbitrator shall
issue the settlement agreement as an
arbitral award, which shall be subject to
enforcement under the law.

PART II
SPECIFIC COURT RELIEF

RULE 3: JUDICIAL RELIEF INVOLVING


THE ISSUE OF EXISTENCE, VALIDITY
AND ENFORCEABILITY OF THE
ARBITRATION AGREEMENT
Rule 3.1. When judicial relief is
available

Thejudicial relief provided in Rule 3,


whether resorted to before or after
commencement of arbitration, shall apply
only when the place of arbitration is in the
Philippines.

Judicial Relief
Before Commencement
of Arbitration
Who may
file
petition

Any party to an
Arbitration agreement

At any time prior


tothecommencement
When
of arbitration
Arbitration
A.
Judicial Relief agreement
before
Is
invalid,void, unenforceable
Grounds
Commencement
of
Arbitration
orinexistent
NoVenue
forum shopping
A principal
petition place
for
RTC where- the
judicial reliefunder
this Rule
may notofbe
of business
or residence
any
of the
petitioners
or or
commenced when the
existence,
validity
respondents
located
enforceability of an
arbitrationisagreement
Theone
court
must
exercise
hasCourt
been raised as
of the
issues
in a
judicial
restraint
prior
action before the
same
or another
Action
court.
A prima facie determination
Relief
by the
court upholding
the
againstRule 3.10.
Application
for
arbitration
agreement
is
NOT
court
interim relief.
subject to MR, appeal or
action
certiorari.
If thepetitioner also applies for an interim
measure of protection, he must also comply
Such prima facie
with the requirements of the Special ADR
determinationwill NOT
Rules for the application for an interim
prejudice the right of any
measure of protection.
party to raise the issue of the
existence, validity and
enforceability of the
arbitration agreement
B. Judicial Relief after Arbitration
before the arbitral tribunal
Commences
OR the court in
an action to vacate or set
No injunction of
arbitration
proceedings
aside
the arbitral
award. In
the latter case, the courts
The court shall notreview
enjoinof the
arbitration
the arbitral
proceedings during
the pendency
of no
the
tribunals
ruling shall
petition.
longer be limited to a mere
prima facie determination of
Judicial recourse
toissue
the but
court
shall
such
shall
be anot
full
prevent
the
arbitral review.
tribunal
from
continuing the proceedings and rendering
its award (Rule 3.18B).

Judicial Relief
After Arbitration
Rule 3.20.Commences
Where no petition is allowed.
Anyparty toarbitration may
PetitionthecourtForjudicialrelieffrom
theruling
Wherethe arbitral tribunal defers its
rulingof
the
arbitraltribunalon
on preliminary question regarding its
apreliminaryquestionupholdingordecliningit
jurisdiction until its final award, the
s jurisdiction.
aggrieved party
cannot seek judicial relief to
Withinthe
30 deferral
days from
receipt
question
and
mustof await the
notice of ruling byarbitral tribunal
final
arbitral
award
before
seeking
appropriate judicial recourse.
Arbitration Agreementis invalid,
Inexistentor Unenforceableas aresultof
A ruling
by the arbitral
tribunal deferring
whichthearbitral
tribunal
resolution
on the issue
of its jurisdiction
hasnojurisdictionto
resolvethedispute
final
award,
shall
not be is
subject
RTCuntil
of the
place
where
arbitration
takingto a
motion
for
reconsideration,
appeal
or a
or where any of the petitioners or
petition for certiorari.
respondents
has his principal place of
business or residence.
The court
judgment
withinaward
30
Rule shall
3.21.render
Rendition
of arbitral
days from
the
time
the
petition
is
submitted
before court decision on petition from
for resolution
arbitral tribunals
preliminary ruling on
The aggrieved
party
may file
jurisdiction.
MR. The decision of the court shall is NOT
subject
to appeal.
Ifthe arbitral
tribunal
renders a final
arbitral award and the Court has not
The ruling
of the court
affirming
rendered
a decision
on the
petitionthe
from the
arbitral
tribunals
jurisdiction
is
not
arbitral
tribunals
preliminary
ruling
subject to
petition for certiorari.
affirming
itsajurisdiction,
that petition shall
become ipso facto moot and academic and
Theberuling
of the court
that
the
shall
dismissed
by the
Regional
Trial
arbitral
tribunal
has
no
jurisdiction
Court. The dismissal shall be without
may be the
subject
petition
for party
prejudice
to the
rightof
ofathe
aggrieved
certiorari.
to raise the same issue in a timely petition
to vacate or set aside the award.
Rule 3.22. Arbitral tribunal a
nominal party
Thearbitral tribunal is only a nominal
party. The court shall not require the
arbitral tribunal to submit any pleadings or
written submissions but may consider the
same should the latter participate in the
proceedings, but only as nominal parties
thereto.

Comment/Opposition
The comment/oppositionof the respondent
must be filed within 15 days from service of
the petition.

RULE 4: REFERRAL TO ADR


Rule 4.2. When to make request
A. Where the arbitration agreement
exists before the action is filed.
The request forreferral shall be made NOT
later than the pre-trial conference. After the
pre-trial conference, the court will only act
upon the request for referral if it is made
with the agreement of all parties to the
case.

Remedy if one party refuse to comply


with thearbitration agreement:
The party may petition the court for an
order directing that such arbitration
proceed in the manner provided for in such
agreement (Sec. 6,RA 876).
B. Submission agreement.
If there is noexisting arbitration agreement
at the time the case is filed but the parties
subsequently enter into an arbitration
agreement, they may request the court to
refer their dispute to arbitration at any time
during the proceedings.

Rule 4.4. Comment/ Opposition.

Thecomment/opposition must be filed


within 15 days from service of the petition.
The comment/opposition should show that:
1. there is no agreement to refer the
dispute to arbitration; and/or
2. the agreement is null and void; and/or
3. the subject-matter of the dispute is not
capable of settlement or resolution by
arbitration in accordance with Section 6
of the ADR Act.
Rule 4.6. No reconsideration,
or certiorari.

appeal

An order referring the dispute toarbitration


shall be immediately executory and shall
not
be
subject
to
a
motion
for
reconsideration, appeal or petition for
certiorari.
An order denying the request to refer the
dispute to arbitration shall not be subject
to an appeal, but may be the subject of a
motion for reconsideration and/or a
petition for certiorari.

Rule 4.7. Multiple actions and parties


The courtshall not decline to refer some or
all of the parties to arbitration for any of
the following reasons:

1. Not all of the disputes subject of the


civil action may be referred to
arbitration;
2. Not all of the parties to the civil action
are bound by the arbitration agreement
and referral to arbitration would result
in multiplicity of suits;
3. The issues raised in the civil action
could bespeedily and efficiently resolved

in itsentirety by the court rather than in


arbitration;
4. Referral to arbitration does not appear
to be the most prudent action; or
5. The stay of the action would prejudice
therights of the parties to the civil
action whoare not bound by the
arbitration agreement.
Inclusion of a party -The court may,
however,issue an order directing the
inclusion in arbitration of those parties who
are not bound by the arbitration agreement
but who agree to such inclusion provided
those originally bound by it do not object to
their inclusion.
Rule 4.8. Arbitration to proceed.
Despite thependency of the action referred
to in Rule 4.1, above, arbitral proceedings
may nevertheless be commenced or
continued, and an award may be made,
while the action is pending before the court.
RULE 5: INTERIM
PROTECTION

MEASURES

OF

Grounds:
1. The need to prevent irreparable loss
or injury;
2. The need to provide security for the
performance of any obligation;
3. to produce or preserve evidence; or
4. The need to compel any other
appropriate act or omission.
NOTE:
The
exclusive.

enumeration

is

not

NOTE: Parties to arbitration may request


formeasures of protection during the
pendency of the arbitration proceedings.
Before the constitution of the arbitral
tribunal, the request for interim measures
of protection may be made before regular
courts. After constitution of the arbitral

tribunal and during arbitral proceedings,


the request may be made with the
arbitraltribunal or to the extent that the
arbitral tribunalhas no power to act or is
unable to act effectively, the request may be
made with the regular courts(Sec. 28, RA
9285).
TYPE OF INTERIM
PROTECTION (P2ADA)

MEASURE

OF

1. Preliminary
injunction
directed
against aparty to arbitration;
2. Preliminary
attachment
against
property orgarnishment of funds in the
custody of a bank or a 3rd person;
3. Appointment of a receiver;
4. Detention, preservation, delivery
orinspection of property; or,
5. Assistance in the enforcement of
an interim measure of protection
granted by thearbitral tribunal,
which the latter cannot enforce
effectively.
NOTE: Such interim measures may include
butshall not be limited to preliminary
injunction directed against a party,
appointment of receivers or detention,
preservation,inspection of property that is
the subject of the dispute in arbitration
(Sec. 29, RA 9285).
Comment/Opposition
Thecomment/opposition must be filed
within 15 days from service of the petition.
The opposition or comment should state
the reasons why the interim measure of
protection should not be granted.
Temporary Order of Protection (TOP)
In cases where, based solely on the
petition, the court finds that there is an
urgent need to either:
1. preserve property,
2. prevent
the
respondent
from
disposing of, or concealing, the

property, or
3. prevent the relief prayed for from
becoming illusory because of prior
notice, it shall issue an immediately
executory temporary order of protection
and require the petitioner, within 5 days
from receipt of that order, to post a bond
to answer for any damage that
respondent may suffer as a result of its
order.
Effectivity Theex-partetemporary order
ofprotection shall be valid only for a period
of 20 days from the service on the party
required to comply with the order. The
court may extend the period of validity of
the ex-parte TOP for no more than 20 days
from expiration of the original period.
The respondent has the option of having
the temporary order of protection lifted by
posting an appropriate counter-bond as
determined by the court.
Rule 5.10. Relief againstcourt action.
If respondent was given an opportunity to
be heard on a petition for an interim
measure of protection, any order by the
court shall be immediately executory, but
may be the subject of a motion for
reconsideration and/or appeal or, if
warranted, a petition for certiorari.
Rule 5.11. Duty of the court to
refer back.
Thecourt shall GRANT an application for
assistance in implementing or enforcing an
interim measure of protection ordered by an
arbitral tribunal on any or all of the
following grounds:
a. The arbitral tribunal granted the
interim relief ex parte; or

b. The party opposing the application


found new material evidence, which the
arbitral tribunal had not considered in
granting in the application, and which,
if considered, may produce a different
result; or
c. The measure of protection ordered by
the arbitral tribunal amends, revokes,
modifies or is inconsistent with an
earlier measure of protection issued by
the court.
If it finds that there is sufficient merit in
the opposition to the application based on
letter (b), the court shall refer the matter
back to the arbitral tribunal for appropriate
determination.

Rule 5.12. Security.


The order granting aninterim measure of
protection may be conditioned upon the
provision of security, performance of an act,
or omission thereof, specified in the order.
The Court may NOT change or increase or
decrease the security ordered by the
arbitral tribunal.
Rule 5.13. Modification, amendment,
revision or revocation of courts
previously issued interim measure of
protection
Any court order grantingor denying interim
measure/s of protection is issued without
prejudice
to
subsequent
grant,
modification, amendment, revision or
revocation by the arbitral tribunal.
An interim measure of protection issued by
the arbitral tribunal shall, upon its
issuance be deemed to have ipso jure
modified, amended,revised or revoked
an
interim
measure
ofprotection

previously issued by the court to theextent


that it is inconsistent with the subsequent
interim measure of protection issued by the
arbitral tribunal.
NOTE:
If
there
is
conflict
or
inconsistencybetween interim measure of
protection issued by the court and by the
arbitral tribunal, the question shall be
immediately referred by the court to the
arbitral tribunal which shall have the
authority to decide such question.
Rule 5.15. Court to defer action on
petition for an interim measure of
protection when informed of
constitution of the arbitral tribunal
The court shall defer action on any pending
petition for an interim measure of
protection filed by a party to an arbitration
agreement arising from or in connection
with a dispute thereunder upon being
informed that an arbitral tribunal has been
constituted pursuant to such agreement.
The court may act upon such petition only
if it is established by the petitioner that the
arbitral tribunal has no power to act on any
such interim measure of protection or is
unable to act thereon effectively.

Rule 5.16. Court assistance should


arbitral tribunal be unable to effectively
enforce interim measure of protection

When the court may act as Appointing


Authority
The court shall act as AppointingAuthority
ONLY in the following instances:
1. Where any of the parties in an
institutional arbitration failed or refused
to appoint an arbitrator or
2. When the parties have failed to reach an
agreement on the sole arbitrator or
3. When the 2 designated arbitrators have
failed to reach an agreement on the 3rd
or presiding arbitrator (in an arbitration
before a panel of 3 arbitrators), and the
institution
under
whose
rules
arbitration is to be conducted fails or is
unable to perform its duty as appointing
authority within a reasonable time from
receipt of request for appointment;
4. Where arbitration is ad hoc and the
parties failed to provide a method for
appointing or replacing an arbitrator, or
substitute arbitrator, or
5. The method agreed upon is ineffective,
and the National President of the IBP or
his representative fails or refuses to act
within such period allowed under the
rules of the IBP or within such period
as may be agreed upon by the parties,
or in the absence thereof, within 30
days from receipt of such request;

The court shall assist in the enforcement of


an interim measure of protection issued by
the arbitral tribunal which it is unable to
effectively enforce.

6. If the Appointing Authority fails or


refuses to act or appoint an arbitrator
within a reasonable time from receipt of
the request, any party or the appointed
arbitrator/s may request the court to
appoint an arbitrator or the 3rd
arbitrator as the case may be.

RULE 6: APPOINTMENT OF
ARBITRATORS

request the court to appoint an arbitrator


or the 3rd arbitrator as the c(WHAT??)

other witness; and


Where the parties agreed that their dispute
shall be resolved by 3 arbitrators but no
method of appointing those arbitrators has
been agreed upon, each party shall appoint
1 arbitrator and the 2 arbitrators thus
appointed shall appoint a 3rd arbitrator. If a
party fails to appoint his arbitrator within
30 days of receipt of a request from the
other party, OR if the 2 arbitrators fail to
agree on the third arbitrator within a
reasonable time from their appointment,
the appointment shall be made by the
Appointing Authority.

d. To take measures to safeguard and / or


conserve any matter which is the
subject of the dispute in arbitration.

"Appointing Authority" shall mean the


person
orinstitution
named
in
the
arbitration agreement as the appointing
authority; or the regular arbitration
institution under whose rule the arbitration
is agreed to be conducted (Rule 1.1).

When an arbitrator is challenged before


thearbitral tribunal under the procedure
agreed upon by the parties or under the
procedure provided for in Article 13 (2) of
the Model Law and the challenge is not
successful, the aggrieved party may request
the Appointing Authority to rule on the
challenge, and it is only when such
Appointing Authority fails or refuses to act
on the challenge within such period as may
be allowed under the applicable rule or in
the absence thereof, within 30 days from
receipt of the request, that the aggrieved
party may renew the challenge in court.

Rule 6.9. Relief against court action


If the courtappoints an arbitrator, the order
appointing
an
arbitrator
shall
be
immediately executory and shall not be
the subject of a motion for reconsideration,
appeal or certiorari. An order of the court
denying the petition for appointment of an
arbitrator may, however, be the subject of a
motion for reconsideration, appeal or
certiorari.
Powers of Arbitrators:
a. To require any person to attend a
hearing as a witness;
b. To subpoena witnesses and documents
when the relevancy of the testimony and
the materiality thereof has been
demonstrated;
c. Require the retirement of any
witness during the testimony of any

RULE 7: CHALLENGE TO APPOINTMENT


OF ARBITRATOR
Rule 7.2. When challenge may be raised
in court

Rule 7.8. No MR, appeal or certiorari


Any orderof the court resolving the petition
shall be immediately executory and shall
not be the subject of a motion for
reconsideration, appeal, or certiorari.
NOTE: If an arbitratorbecomes de jure or de
factounable to perform his functions or for
other reasons fails to act without undue
delay, hismandate terminates if he
withdraws from his office or if the parties
agree on the termination. Otherwise, if a
controversy remains concerning any of
these grounds, any party may request the
court or other authority specified in Article
6 to decide on the termination of the

mandate, which decision is unappealable


(Article 14, UNCITRALModel Law).

RULE 8: TERMINATION OF THE


MANDATE OF ARBITRATOR

Rule 8.7. No MR or appeal.


Any order of thecourt resolving the petition
shall be immediatelyexecutory and shall
not
be
subject
of
a
motion
forreconsideration, appeal or petition for
certiorari.
Rule 8.8. Appointment of substitute
arbitrator.
Where the mandate of an arbitrator is
terminated, or he withdraws from office for
any other reason, or because of his
mandate is revoked by agreement of the
parties or is terminated for any other
reason, a substitute arbitrator shall be
appointed according to the rules that were
applicable to the appointment of the
arbitrator being replaced.

RULE 9: ASSISTANCE IN TAKING


EVIDENCE
Rule 9.5. Type of assistance.
A party requiringassistance in the taking of
evidence may petition the court to direct
any person, including a representative of a
corporation, association, partnership or
other entity (other than a party to the ADR

proceedings or its officers) found in the


Philippines, for any of the following:

1. To comply with a subpoena ad


testificandum and/or subpoena duces
tecum;
2. To appear as a witness before an officer
for the taking of his deposition upon
oral
examination
or
by
written
interrogatories;
3. To allow the physical examination of the
condition of persons, or the inspection
of things or premises and, when
appropriate, to allow the recording
and/or documentation of condition of
persons, things or premises (i.e.,
photographs, video and other means of
recording /documentation);
4. To allow the examination and copying of
documents; and
5. To perform any similar acts.
Relief against court action The order
grantingassistance in taking evidence shall
be immediately executory and not subject
to reconsideration or appeal. If the court
declines to grant assistance in taking
evidence, the petitioner may file a motion
for reconsideration or appeal.
If the aggrieved party was able to show
that anevidencewas failed
to
be
presentedinadvertently, the hearing may
be reopened bythe arbitrators on their own
motion or upon the request of any party,
upon good cause, shown at any time before
the award is rendered. When hearings are
thus reopened, the effective date for closing
of the hearings shall be the date of the
closing of the reopened hearing (Sec. 17, RA
876).

Rule 9.10. Perpetuation of testimony


before the arbitral tribunal is
constituted
At anytimebefore arbitration is commenced
or
before
the
arbitral
tribunal
is
constituted, any person who desires to
perpetuate his testimony or that of another
person may do so in accordance with Rule
24 of the Rules of Court.

RULE 10:
CONFIDENTIALITY/PROTECTIVE
ORDERS
Rule 10.1. Who may request
confidentiality
A party, counsel or witness who disclosed
or who was compelled to disclose
confidential information relative to the
subject of ADR has the right to prevent
such information from being further
disclosed without the express written
consent of the source or the party who
made the disclosure.
Rule 10.8. Court action.
In resolving thepetition or motion, the
courts shall be guided by the following
principles
applicable
to
all
ADRproceedings: Confidential information
shallnot be subject to discovery and shall
be
inadmissible
in
any
adversarial
proceeding, whether judicial or quasi
judicial. However, evidence or information
that is otherwise admissible or subject to
discovery does not become inadmissible or
protected from discovery solely by reason of
its use therein.
For mediation proceedings, the court

shall be further guided by the following


principles:
1. Information obtained through mediation
shall be privileged and confidential.
2. A party, a mediator, or a nonparty
participant may refuse to disclose and
may prevent any other person from
disclosing a mediation communication.
3. In such an adversarial proceeding, the
following persons involved or previously
involved in a mediation may not be
compelled to disclose confidential
information
obtained
during
the
mediation:
(1) the parties to the dispute; (2) the
mediator or mediators; (3) the counsel
for the parties: (4) the nonparty
participants; (5) any persons hired or
engaged in connection with the
mediation as secretary, stenographer;
clerk or assistant; and (6) any other
person who obtains or possesses
confidential information by reason of
his/ her profession.
4. The protection of the ADR Laws shall
continue to apply even if a mediator is
found to have failed to act impartially.
5. A mediator may not be called to testify
to provide information gathered in
mediation. A mediator who is wrongfully
subpoenaed shall be reimbursed the full
cost of his attorney fees and related
expenses.

Rule 10.9. Relief against court action.


The order enjoining a person or persons
from divulging confidential information
shall be immediately executory and may not
be enjoined while the order is being
questioned with the appellate courts.

If the court declines to enjoin a person or


persons
from
divulging
confidential
information, the petitioner may file a
motion for reconsideration or appeal.

RULE 11: CONFIRMATION,


CORRECTION OR VACATION OF AWARD
IN DOMESTIC ARBITRATION
Rule 11.1. Who may request
confirmation, correction or vacation
Any party to a domestic arbitration may
petition the court to confirm, correct or
vacate a domestic arbitral award.
Rule 11.2. When to request
confirmation,correction/modification
or vacation
A. Confirmation - At any time after the
lapse of30 days from receipt by the
petitioner of the arbitral award, he may
petition the court to confirm that
award.
B. Correction/Modification. - Not later
than 30days from receipt of the arbitral
award, a party may petition the court to
correct/modify that award.
C. Vacation. - Not later than 30 days
fromreceipt of the arbitral award, a
party may petition the court to vacate
that award.
D. A petition to vacate the arbitral award
may be filed, in opposition to a petition
to confirm the arbitral award, not later
than 30 days from receipt of the award
by the petitioner.
A petition to vacate the arbitral award filed
beyond the reglementary period shall be

dismissed.
E. A petition to confirm the arbitral award
may be filed, in opposition to a petition
to vacate the arbitral award, at any
time after the petition to vacate such
arbitral award is filed. The dismissal of
the petition to vacate the arbitral award
for having been filed beyond the
reglementary period shall not result in
the dismissal of the petition for the
confirmation of such arbitral award.
F. The filing of a petition to confirm an
arbitral award shall not authorize
the filing of a belated petition to
vacate or set aside such award in
opposition thereto.
G. A petition to correct an arbitral
award may be included as part of a
petition to confirm the arbitral
award or as a petition to confirm
that award.
Rule 11.5. Form of petition.
An application tovacate an arbitral award
shall be in the form of a petition to vacate
or as a petition to vacate in opposition to a
petition to confirm the same award.
An application to correct/modify an arbitral
award may be included in a petition to
confirm an arbitral award or in a petition to
vacate in opposition to confirm the same
award.
When a petition to confirm an arbitral
award is pending before a court, the party
seeking to vacate or correct/modify said
award may only apply for those reliefs
through
a
petition
to
vacate
or
correct/modify the award in opposition to
the petition to confirm the award provided
that
such
petition
to
vacate
or
correct/modify is filed within thirty (30)

days from his receipt of the award. A


petition to vacate or correct/modify an
arbitral award filed in another court or in a
separate case before the same court shall
be dismissed, upon appropriate motion, as
a violation of the rule against forumshopping.
When a petition to vacate or correct/modify
an arbitral award is pending before a court,
the party seeking to confirm said award
may only apply for that relief through a
petition to confirm the same award in
opposition to the petition to vacate or
correct/modify the award. A petition to
confirm or correct/modify an arbitral award
filed as separate proceeding in another
court or in a different case before the same
court shall be dismissed, upon appropriate
motion, as a violation of the rule against
forum shopping.
As an alternative to the dismissal of a
secondpetitionfor confirmation, vacation
orcorrection/modification of an arbitral
award filedin violation of the non-forum
shopping rule, the court or courts
concerned may allow the consolidation of
the two proceedings in one court and in one
case.
Rule 11.8. Hearing.
If the Court finds from thepetition or
petition in opposition thereto that there are
issues of fact, it shall require the parties,
within a period of not more than 15 days
from receipt of the order, to simultaneously
submit the affidavits of all of their
witnesses and reply affidavits within 10
days from receipt of the affidavits to be
replied to. There shall be attached to the
affidavits or reply affidavits documents
relied upon in support of the statements of
fact in such affidavits or reply affidavits.
If the petition or the petition in opposition

thereto is one for vacation of an arbitral


award, the interested party in arbitration
may oppose the petition or the petition in
opposition thereto for the reason that the
grounds cited in the petition or the petition
in opposition thereto, assuming them to be
true, do not affect the merits of the case
and may be cured or remedied.

RULE 12: RECOGNITION AND


ENFORCEMENT OR SETTING ASIDE OF
AN INTERNATIONAL COMMERCIAL
ARBITRATION AWARD
Rule 12.4. Grounds to set aside or resist
enforcement
The court may set aside or refusethe
enforcement of the arbitral award ONLY if:
a. The party making the application shows
proof that:
1. A party to the arbitration agreement
was under some incapacity, or the said
agreement is not valid under the law to
which the parties have subjected it or,
failing any indication thereof, under
Philippine law; or
2. The party making the application to set
aside or resist enforcement was not
given proper notice of the appointment
of an arbitrator or of the arbitral
proceedings or was otherwise unable to
present his case; or
3. The award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration,
or contains decisions on matters beyond
the scope of the submission to
arbitration; provided that, if the
decisions on matters submitted to
arbitration can be separated from those
not so submitted, only that part of the

award which contains decisions on


matters not submitted to arbitration
may be set aside or only that part of the
award which contains decisions on
matters submitted to arbitration may be
enforced; or
4. The composition of the arbitral tribunal or
the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of Philippine law
from which the parties cannot derogate, or,
failing such agreement, was not in
accordance with Philippine law;

Rule 12.5. Exclusive recourse against


arbitral Award
Recourse
to
a
court
against
an
arbitralaward shall be made only through a
petition to set aside the arbitral award and
on grounds prescribed by the law that
governs
internationalcommercial
arbitration. Any other recourse from the
arbitral award, such as by appeal or
petition for review or petition for certiorari
or otherwise, shall be dismissed by the
court.
Rule 12.8. Notice

NOTE: The grounds are EXCLUSIVE.

Upon finding that the petitionfiled under


this Rule is sufficient both in form and in
substance, the court shall cause notice and
a copy of the petition to be delivered to the
respondent directing him to file an
opposition thereto within 15 days from
receipt of the petition. In lieu of an
opposition, the respondent may file a
petition to set aside in opposition to a
petition to recognize and enforce, or a
petition to recognize and enforce in
opposition to a petition to set aside.

The petition to set-aside or a pleading


resisting the enforcement of an arbitral
award on the ground that a party was a
minor or an incompetent shall be filed only
on behalf of the minor or incompetent and
shall allege that:

The petitioner may within 15 days from


receipt of the petition to set aside in
opposition to a petition to recognize and
enforce, or from receipt of the petition to
recognize and enforce in opposition to a
petition to set aside, file a reply.

b. The court finds that:


1. The subject-matter of the dispute is not
capable of settlement by arbitration
under the law of the Philippines; or
2. The recognition or enforcement of the
award would be contrary to public
policy.

1. The other party to arbitration had


knowingly entered into a submission or
agreement
with
such
minor
or
incompetent, or
2. The submission to arbitration was made
by a guardian or guardian ad litem who
was not authorized to do so by a
competent court.

Rule 12.9. Submission of documents


If thecourt finds that the issue between the
parties is mainly one of law, the parties may
be required to submit briefs of legal
arguments, not more than 15 days from
receipt of the order, sufficiently discussing
the legal issues and the legal basis for the
relief prayed for by each of them.
If the court finds from the petition or

petition in opposition thereto that there are


issues of fact relating to the ground(s) relied
upon for the court to set aside, it shall
require the parties within a period of not
more than 15 days from receipt of the order
simultaneously to submit the affidavits of
all of their witnesses and reply affidavits
within 10 days from receipt of the affidavits
to be replied to. There shall be attached to
the affidavits or reply affidavits, all
documents relied upon in support of the
statements of fact in such affidavits or reply
affidavits.
Rule 12.11. Suspension of proceedings
to set Aside
The court when asked to set aside
anarbitral award may, where appropriate
and upon request by a party, suspend the
proceedings for a period of time determined
by it to give the arbitral tribunal an
opportunity
to
resume
the
arbitral
proceedings or to take such other action as
in the arbitral tribunals opinion will
eliminate the grounds for setting aside. The
court, in referring the case back to the
arbitral tribunal may not direct it to revise
its award in a particular way, or to revise its
findings of fact or conclusions of law or
otherwise encroach upon the independence
of an arbitral tribunal in the making of a
final award.
The court when asked to set aside an
arbitral award may also, when the
preliminary ruling of an arbitral tribunal
affirming its jurisdiction to act on the
matter before it had been appealed by the
party aggrieved by such preliminary ruling
to the court, suspend the proceedings to set
aside to await the ruling of the court on
such pending appeal or, in the alternative,
consolidate the proceedings to set aside
with the earlier appeal.

Rule 12.12. Presumption in favor of


confirmation
It is presumed that an arbitral award was
made and released in due course and is
subject to enforcement by the court, unless
the adverse party is able to establish a
ground for setting aside or not enforcing an
arbitral award.

RULE 13: RECOGNITION AND


ENFORCEMENT OF A FOREIGN
ARBITRAL AWARD
Rule 13.4. Governing law and grounds
to refuse recognition and enforcement
The recognitionand enforcement of a foreign
arbitral award shall be governed by the
1958 New York Convention on the
Recognition and Enforcement of Foreign
Arbitral Awards (the "New York Convention")
and this Rule. The court may, upon
grounds of comity and reciprocity, recognize
and enforce a foreign arbitral award made
in a country that is not a signatory to the
New York Convention as if it were a
Convention Award.
A Philippine court shall not set aside a
foreign arbitral award but may refuse it
recognition and enforcement on any or all of
the following grounds:
a. The party making the application to
refuse recognition and enforcement of
the award furnishes proof that::
1. A party to the arbitration agreement
was under some incapacity; or the
said agreement is not valid under
the law to which the parties have
subjected it or, failing any indication
thereof, under the law of the country

where the award was made; or


2. The party making the application
was not given proper notice of the
appointment of an arbitrator or of
the arbitral proceedings or was
otherwise unable to present his
case; or
3. The award deals with a dispute not
contemplated by or not falling within
the terms of the submission to
arbitration, or contains decisions on
matters beyond the scope of the
submission to arbitration; provided
that, if the decisions on matters
submitted to arbitration can be
separated from those not so
submitted, only that part of the
award which contains decisions on
matters not submitted to arbitration
may be set aside; or
4. The composition of the arbitral
tribunal or the arbitral procedure
was not in accordance with the
agreement of the parties or, failing
such agreement, was not in
accordance with the law of the
country where arbitration took
place; or
5. The award has not yet become
binding on the parties or has been
set aside or suspended by a court of
the country in which that award was
made; or
b. The court finds that:
1. The subject-matter of the dispute is
not capable of settlement or
resolution by arbitration under
Philippine law; or
2. The recognition or enforcement of
the award would be contrary to
public policy.

NOTE: The grounds are EXCLUSIVE.


Rule 13.6. Notice and opposition
Upon findingthat the petition filed under
this Rule is sufficient both in form and in
substance, the court shall cause notice and
a copy of the petition to be delivered to the
respondent allowing him to file an
opposition thereto within 30 days from
receipt of the notice and petition.

Rule 13.8. Submissions

If the court finds thatthe issue between the


parties is mainly one of law, the parties
may be required to submit briefs of legal
arguments, not more than 30 days from
receipt of the order, sufficiently discussing
the legal issues and the legal bases for the
relief prayed for by each other.

If, from a review of the petition or


opposition, there are issues of fact relating
to the ground/s relied upon for the court to
refuse enforcement, the court shall, motu
proprio or upon request of any party,
require the parties to simultaneously
submit the affidavits of all of their
witnesses within a period of not less than
15 days nor more than 30 days from receipt
of the order. The court may, upon the
request of any party, allow the submission
of reply affidavits within a period of not less
than 15 days nor more than 30 days from
receipt of the order granting said request.
There shall be attached to the affidavits or
reply affidavits all documents relied upon in
support of the statements of fact in such
affidavits or reply affidavits.

Rule 13.10. Adjournment/deferment of

decision on enforcement of award


The court beforewhich a petition to
recognize and enforce a foreign arbitral
award is pending, may adjourn or defer
rendering a decision thereon if, in the
meantime, an application for the setting
aside or suspension of the award has been
made with a competent authority in the
country where the award was made. Upon
application of the petitioner, the court may
also require the other party to give suitable
security.
NOTE:
The decision of the court
recognizing andenforcing a foreign arbitral
award is immediatelyexecutory.

Rule 13.12. Recognition and


enforcement of non-convention award
The court shall, onlyupon grounds provided
by these Special ADR Rules, recognize and
enforce a foreign arbitral award made in a
country not a signatory to the New York
Convention when such country extends
comity and reciprocity to awards made in
the Philippines. If that country does not
extend comity and reciprocity to awards
made in the Philippines, the court may
nevertheless treat such award as a foreign
judgment enforceable as such under Rule
39, Section 48, of the Rules of Court.

Whenever applicable and appropriate,


thepertinent rules on arbitration shall be
applied in proceedings before the court
relative to a dispute subject to mediation.

RULE 15: DEPOSIT AND


ENFORCEMENT OF MEDIATED
SETTLEMENT AGREEMENTS
Rule 15.1. Who makes a deposit.
Any party to amediation that is not courtannexed may deposit with the court the
written
settlement
agreement,
which
resulted from that mediation.
Rule 15.2. When deposit is made.
At any timeafter an agreement is reached,
the written settlement agreement may be
deposited.
MEDIATOR: QUALIFICATION
He must be at least 30 years of age with a
bachelors degree. Proficiency in oral and
written communication in English and
Filipino is also required. The prospective
mediator must also possess good moral
character and willingness to learn new
skills and be of service to the public.
Rule 15.3. Venue

PART III
PROVISIONS SPECIFIC TO MEDIATION
RULE 14: GENERAL PROVISIONS
Rule 14.1. Application of the rules on
arbitration

The written settlement agreement may be


jointly deposited by the parties or deposited
by one party with prior notice to the other
party/ies with the Clerk of Court of the
RTC:
1. where the principal place of business in
the Philippines of any of the parties is
located;
2. if any of the parties is an individual,

where any of those individuals resides;


or
3. in the National Capital Judicial Region.
Rule 15.5. Enforcement of mediated
settlement agreement
Any of the parties to a mediatedsettlement
agreement, which was deposited with the
Clerk of Court of the RTC, may, upon
breach thereof, file a verified petition with
the same court to enforce said agreement.
Rule 15.7. Opposition
The adverse party mayfile an opposition,
within 15 days from receipt of notice or
service of the petition, by submitting
written proof of compliance with the
mediated settlement agreement or such
other affirmative or negative defenses it
may have.
Rule 15.8. Court action
After a summaryhearing, if the court finds
that the agreement is a valid mediated
settlement agreement, that there is no
merit in any of the affirmative or negative
defenses raised, and the respondent has
breached that agreement, in whole or in
part, the court shall order the enforcement
thereof; otherwise, it shall dismiss the
petition.
NOTES:
*

While individual parties are encouraged to


personally
appear
in
mediation
proceedings, he can still authorize a
representative to speak for him. But they
must be fully authorized to appear,
negotiate and enter into a compromise by a
Special Power of Attorney.
As a general rule, Confidential Information

obtained through mediation shall not be


subject to discovery and shall be
inadmissible in any adversarial proceeding,
whether judicial or quasi - judicial.
Exception: Evidence or information that
isotherwise admissible or subject to
discovery does not become inadmissible or
protected from discovery solely by reason of
its use in mediation. This is to prevent the
abuse of this privilege by crafty parties or
their counsel.
*** Information obtained through mediation
shall be privileged and confidential. A party,
a mediator, or a nonparty participant may
refuse to disclose and may prevent any
other person from disclosing a mediation
communication. Any information from a
mediation session is in fact inadmissible in
court. Mediators cannot be subpoenaed to
reveal what happened during these
sessions either. All documents submitted by
the parties will be returned to them after
mediation.
The use of the word obtained through
mediation
would
exclude
documents
containing information already available or
already in existence at the time the
controversy arose such as the contract
between the parties and documents made
as consequence of performance or breach.
In short, in formation in documents that
would not exist were it not for mediation is
confidential and privileged.
*** General rule:A mediator may not make
areport,
assessment,
evaluation,
recommendation,
finding,
or
other
communication regarding mediation to a
court or agency or other authority that may
make a ruling on a dispute that is the
subject of mediation.
Exceptions:
1. where
the
mediation
occurred or has terminated,

or where settlement
reached, and

was

2. as permitted to be disclosed
under Sec. 13 of RA 9285
(Sec. 12, RA 9285).
*

A party may designate a lawyer or any other


person to provide assistance in the
mediation. A waiver of this right shall be
made in writing by the party waiving it. A
waiver
of
participation
or
legal
representation may be rescinded at any
time (Sec.14, RA 9285).
*** Once the court determines that the case
ismediatable, the parties are compelled to
appear before the Philippine Mediation
Center (PMC) unit. If the complainant fails
to appear for mediation, the case may be
dismissed. If the defendant is absent, the
court will then decide the case on the basis
of what was presented by the plaintiff
alone.

PART IV
PROVISIONS SPECIFIC TO
CONSTRUCTION ARBITRATION
RULE 16: GENERAL PROVISIONS
Rule 16.1. Application of the rules on
arbitration
Whenever applicable and appropriate, the
ruleson arbitration shall be applied in
proceedings before the court relative to a
dispute subject to construction arbitration.
RULE 17: REFERRAL TO CIAC
Rule 17.1. Dismissal of action.
A RTC beforewhich a construction dispute

is filed shall, upon becoming aware that the


parties have entered into an arbitration
agreement, motu proprio or upon motion
made not later than the pre-trial, dismiss
the case and refer the parties to arbitration
to be conducted by the Construction
Industry Arbitration Commission (CIAC),
unless all parties to arbitration, assisted by
theirrespective counsel, submit to the court
a written agreement making the court,
rather than the CIAC, the body that would
exclusively resolve the dispute.
Rule 17.2. Form and contents of motion
Therequest for dismissal of the civil action
and referral to arbitration shall be through
a verified motion that shall:
1. contain a statement showing that
the dispute is a construction
dispute; and
2. be accompanied by proof of the
existence
of
the
arbitration
agreement.
Rule 17.3. Opposition
Upon receipt of themotion to refer the
dispute to arbitration by CIAC, the other
party may file an opposition to the motion
on or before the day such motion is to be
heard. The opposition shall clearly set forth
the reasons why the court should not
dismiss the case.
Rule 17.4. Hearing
The court shall hear themotion only once
and for the purpose of clarifying relevant
factual and legal issues.
Rule 17.5. Court action
If the other parties failto file their
opposition on or before the day of the

hearing, the court shall motu proprio resolve


the motion only on the basis of the facts
alleged in the motion. After hearing, the
court shall dismiss the civil action and refer
the parties to arbitration if it finds, based
on
the
pleadings
and
supporting
documents submitted by the parties, that
there is a valid and enforceable arbitration
agreement involving a construction dispute.
Otherwise, the court shall proceed to hear
the case.
All doubts shall be resolved in favor of the
existence of a construction dispute and the
arbitration agreement.
Rule 17.6. Referral immediately
executory
Anorder dismissing the case and referring
the dispute to arbitration by CIAC shall be
immediately executory.

5. Dismissal of the civil action would


prejudice the rights of the parties to the
civil action who are not bound by the
arbitration agreement.
Inclusion of 3rd party The court may,
however,issue an order directing the
inclusion in arbitration of those parties who
are bound by the arbitration agreement
directly or by reference thereto pursuant to
Section 34 of RA No. 9285. Furthermore,
the court shall issue an order directing the
case to proceed with respect to the parties
not bound by the arbitration agreement.
Rule 17.8. Referral
If the parties manifest thatthey have agreed
to submit all or part of their dispute
pending with the court to arbitration by
CIAC, the court shall refer them to CIAC for
arbitration.

Rule 17.7. Multiple actions and parties.


The court shall not decline to dismiss the
civil action and make a referral to
arbitration by CIAC for any of the following
reasons:
1. Not all of the disputes subject of the
civil action may be referred to
arbitration;
2. Not all of the parties to the civil action
are bound by the arbitration agreement
and referral to arbitration would result
in multiplicity of suits;
3. The issues raised in the civil action
could be speedily and efficiently
resolved in its entirety by the Court
rather than in arbitration;
4. Referral to arbitration does not appear
to be the most prudent action; or

PART V
PROVISIONS SPECIFIC TO OTHER
FORMS OF ADR
RULE 18: GENERAL PROVISIONS
Rule 18.1. Applicability of rules to other
forms of ADR
This rule governs the procedure for matters
brought before the court involving the
following forms of ADR:
1.
2.
3.
4.
5.
6.

Early neutral evaluation;


Neutral evaluation;
Mini-trial;
Mediation-arbitration;
A combination thereof; or
Any other ADR form.

Rule 18.2. Applicability of the rules


on mediation
If the other ADR form/process ismore akin
to mediation (i.e., the neutral third party
merely assists the parties in reaching a
voluntary agreement), the herein rules on
mediation shall apply.
Rule 18.3. Applicability of rules on
arbitration.
If the other ADR form/process is more akin
to arbitration (i.e., the neutral third party
has the power to make a binding resolution
of the dispute), the herein rules on
arbitration shall apply.
Rule 18.4. Referral.
If a dispute is alreadybefore a court, either
party may before and during pre-trial, file a
motion for the court to refer the parties to
other ADR forms/processes. At any time
during court proceedings, even after pretrial, the parties may jointly move for
suspension of the action pursuant to Art.
2030 of the Civil Code of the Philippines
where the possibility of compromise is
shown.
Rule 18.5. Submission of settlement
agreement.
Either party may submit to the court,
beforewhich the case is pending, any
settlement agreement following a neutral or
an early neutral evaluation, mini-trial or
mediation-arbitration.

PART VI
MR, APPEAL AND CERTIORARI
RULE 19: MR, APPEAL AND

CERTIORARI
A. MOTION FOR RECONSIDERATION
Rule 19.1. Motion for reconsideration,
when allowed
A party may ask the Regional Trial
toreconsider its ruling on the following:

1. That the arbitration agreement is


inexistent, invalid or unenforceable
pursuant to Rule 3.10 (B);
2. Upholding or reversing the arbitral
tribunals jurisdiction pursuant to Rule
3.19;
3. Denying a request to refer the parties to
arbitration;
4. Granting or denying a party an
interim measure of protection;
5. Denying
a
petition
for
the
appointment of an arbitrator;
6. Refusing to grant assistance in
taking evidence;
7. Enjoining or refusing to enjoin a
person from divulging confidential
information;
8. Confirming, vacating or correcting a
domestic arbitral award;
9. Suspending the proceedings to set
aside an international commercial
arbitral award and referring the
case back to the arbitral tribunal;
10. Setting aside an international
commercial arbitral award;
11. Dismissing the petition to set aside
an international commercial arbitral
award, even if the court does not
recognize and/or enforce the same;
12. Recognizing and/or enforcing, or
dismissing a petition to recognize
and/or enforce an international
commercial arbitral award;

13. Declining a request for assistance in


taking evidence;
14. Adjourning or deferring a ruling on
a petition to set aside, recognize
and/or enforce an international
commercial arbitral award;
15. Recognizing and/or enforcing a
foreign arbitral award, or refusing
recognition and/or enforcement of
the same; and
16. Granting or dismissing a petition to
enforce
a
deposited
mediated
settlement agreement.
NO MR shall be allowed from the following
rulings of the RTC:
1. A prima facie determination upholding
the existence, validity or enforceability
of an arbitration agreement pursuant to
Rule 3.1 (A)
2. An order referring the dispute to
arbitration;
3. An order appointing an arbitrator;
4. Any ruling on the challenge to the
appointment of an arbitrator;
5. Any order resolving the issue of the
termination of the mandate of an
arbitrator; and
6. An order granting assistance in
taking evidence.
Rule 19.2. When to move for
reconsideration
Amotion for reconsideration may be filed
with the RTC within a non-extendible
period of 15 days from receipt of the
questioned ruling or order.
Opposition or comment Upon receipt of
themotion for reconsideration, the other
party or parties shall have a non-extendible
period of 15 days to file his opposition or
comment.
Resolution

of

motion.

motion

forreconsideration shall be resolved within


30 days from receipt of the opposition or
comment or upon the expiration of the
period to file such opposition or comment.
NOTE: No party shall be
2NDmotion forreconsideration.

allowed

B. GENERAL PROVISIONS ON APPEAL


AND CERTIORARI
Rule 19.7. No appeal or certiorari on
the merits of an arbitral award
An agreement to refer adispute to
arbitration shall mean that the arbitral
award shall be final and binding.
Consequently, a party to an arbitration is
precluded from filing an appeal or a petition
for certiorari questioning the merits of an
arbitral award.
Rule 19.8. Subject matter and
governing rules
The remedy of an appeal through a petition
for review or the remedy of a special civil
action of certiorari from a decision of the
RTC made under the Special ADR Rules
shall be allowed in the instances, and
instituted only in the manner, provided
under this Rule.
Rule 19.9. Prohibited alternative
remedies
Where the remedies of appeal and certiorari
are specifically made available to a party
under the Special ADR Rules, recourse to
one remedy shall preclude recourse to the
other.
Rule 19.10. Rule on judicial review on
arbitration in the Philippines
General rule: The court can only vacate or

setaside the decision of an arbitral tribunal


if the award suffers from any of the
infirmities or grounds for vacating an
arbitral award (Only in instances provided
by law):
1. under Sec. 24 of R.A. No. 876 or
2. under Rule 34 of the Model Law in a
domestic arbitration, or
3. for setting aside an award in an
international arbitration under Art. 34
of the Model Law, or
4. for such other grounds provided under
these Special Rules.
Exception: The arbitral award amounts to
aviolation of public policy.
The court shall NOT set aside or vacate the
award of the arbitral tribunal merely on the
ground that the arbitral tribunal committed
errors of fact, or of law, or of fact and
law, as the court cannot substitute its
judgment for that of the arbitral tribunal.
Rule 19.11. Rule on judicial review of
foreign arbitral award
The court can deny recognitionand
enforcement of a foreign arbitral award only
upon the grounds provided in Art. V of the
New York Convention, but shall have no
power to vacate or set aside a foreign
arbitral award.

C. APPEALS
APPEALS

TO

THE

COURT

OF

Rule 19.12. Appeal to the CA


An appeal to theCA through a petition for
review shall only be allowed from the
following final orders of the RTC:
1. Granting or denying an interim measure
of protection;
2. Denying a petition for appointment of an

arbitrator;
3. Denying a petition for assistance in
taking evidence;
4. Enjoining or refusing to enjoin a
person from divulging confidential
information;
5. Confirming,
vacating
or
correcting/modifying a domestic arbitral
award;
6. Setting aside an international
commercial arbitration award;
7. Dismissing the petition to set aside an
international commercial arbitration
award even if the court does not decide
to recognize or enforce such award;
8. Recognizing
international
award;

and/or
enforcing
an
commercial arbitration

9. Dismissing a petition to enforce an


international commercial arbitration
award;
10. Recognizing and/or enforcing a foreign
arbitral award;
11. Refusing
recognition
and/or
enforcement of a foreign arbitral award;
12. Granting or dismissing a petition to
enforce a deposited mediated settlement
agreement; and
13. Reversing the ruling of the arbitral
tribunal upholding its jurisdiction.
Rule 19.14. When to appeal.
The petition forreview shall be filed within
15 days from notice of the decision of the
RTC or the denial of the petitioners MR.

Rule 19.18. Action on the petition.


The CA mayrequire the respondent to file a
comment on the petition, not a motion to
dismiss, within 10 daysfrom notice, or
dismiss the petition if it finds, upon
consideration of the grounds alleged and
the legal briefs submitted by the parties,
that the petition does not appear to be
prima facie meritorious.
Rule 19.22. Effect of appeal
The appeal shallnot stay the award,
judgment, final order or resolution sought
to be reviewed unless the CA directs
otherwise upon such terms as it may deem
just.
NOTE: The CA shall render judgment
within 60days from the time the case is
submitted for decision.
Rule 19.24. Subject of appeal
restricted in certain instance.
If the decision of the RTCrefusing to
recognize and/or enforce, vacating and/or
setting aside an arbitral award is premised
on a finding of fact, the CA may inquire only
into such fact to determine the existence or
non-existence of the specific ground under
the arbitration laws of the Philippines relied
upon by the RTC to refuse to recognize
and/or enforce, vacate and/or set aside an
award. Any such inquiry into a question of
fact shall not be resorted to for the purpose
of substituting the courts judgment for that
of the arbitral tribunal as regards the
latters ruling on the merits of the
controversy.
Rule 19.25. Party appealing decision of
court confirming arbitral award
required to post bond.

The CA shall within 15 days from receipt of


thepetition require the party appealing from
the decision or a final order of the RTC,
either confirming or enforcing an arbitral
award, or denying a petition to set aside or
vacate the arbitral award to post a bond
executed in favor of the prevailing party
equal to the amount of the award.
Failure of the petitioner to post such bond
shall be a ground for the Court of Appeals
to dismiss the petition.

D.
SPECIAL
CERTIORARI

CIVIL

ACTION

FOR

Rule 19.26. Certiorari to the CA


When theRegional Trial Court, in making a
ruling under the Special ADR Rules, has
acted without or in excess of its
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any
plain, speedy, and adequate remedy in the
ordinary course of law, a party may file a
special civil action for certiorari to annul or
set aside a ruling of the RTC.
A special civil action for certiorari may be
filed against the following orders of the
court.
1. Holding
that
the
arbitration
agreement is inexistent, invalid or
unenforceable;
2. Reversing the arbitral tribunals
preliminary
determination
upholding its jurisdiction;
3. Denying the request to refer the
dispute to arbitration;
4. Granting or refusing an interim relief;

5. Denying
a
petition
for
appointment of an arbitrator;

the

6. Confirming, vacating or correcting a


domestic arbitral award;
7. Suspending the proceedings to set
aside an international commercial
arbitral award and referring the
case back to the arbitral tribunal;
8. Allowing a party to enforce an
international commercial arbitral
award pending appeal;
9. Adjourning or deferring a ruling on
whether to set aside, recognize and
or
enforce
an
international
commercial arbitral award;
10. Allowing a party to enforce a foreign
arbitral award pending appeal; and

In petitions relating to the recognition and


enforcement of a foreign arbitral award, the
arbitral tribunal shall not be included even
as a nominal party. However, the tribunal
may be notified of the proceedings and
furnished with court processes.
Rule 19.32. Arbitration may continue
despite petition for certiorari
A petition for certiorari to the court from
the action of the appointing authority or
the arbitral tribunal allowed under this
Rule shall not prevent the arbitral tribunal
from continuing the proceedings and
rendering its award. Should the arbitral
tribunal continue with the proceedings, the
arbitral proceedings and any award
rendered therein will be subject to the final
outcome of the pending petition for
certiorari.

11. Denying a petition for assistance in


taking evidence.
Rule 19.28. When to file petition
The petitionmust be filed with the Court of
Appeals within 15 days from notice of the
judgment, order or resolution sought to be
annulled or set aside. No extension of time
to file the petition shall be allowed.
Rule 19.29. Arbitral tribunal a nominal
party in the petition
The arbitral tribunal shall only be anominal
party in the petition for certiorari. As
nominal party, the arbitral tribunal shall
not be required to submit any pleadings or
written submissions to the court. The
arbitral tribunal or an arbitrator may,
however, submit such pleadings or written
submissions if the same serves the interest
of justice.

Rule 19.33. Prohibition against


injunctions.
TheCA shall not, during the pendency of
the proceedings before it, prohibit or enjoin
the commencement of arbitration, the
constitution of the arbitral tribunal, or the
continuation of arbitration.
Rule 19.34. Proceedings after comment
is filed.
After the comment is filed, or the time for
the filing thereof has expired, the court
shall render judgment granting the relief
prayed for or to which the petitioner is
entitled, or denying the same, within a nonextendible period of 15 days.

E. APPEAL BY CERTIORARI
THE SUPREME COURT

TO

Rule 19.36. Review discretionary


A review bythe SC is not a matter of right,
but of sound judicial discretion, which will
be granted only for serious and compelling
reasons resulting in grave prejudice to the
aggrieved party. The following, while neither
controlling nor fully measuring the court's
discretion, indicate the serious and
compelling, and necessarily, restrictive
nature of the grounds that will warrant the
exercise
of
the
Supreme
Courts
discretionary powers, when the CA:

for review
thereto.

or

be

closely

analogous

Rule 19.37. Filing of petition with


Supreme Court.
A party desiring to appeal by certiorarifrom
a judgment or final order or resolution of
the Court of Appeals issued pursuant to
these Special ADR Rules may file with the
SC a verified petition for review on
certiorari. The petition shall raise only
questions of law, which must be distinctly
set forth.
Rule 19.38. Time for filing; extension.

1. Failed to apply the applicable


standard or test for judicial review
prescribed in these Special ADR
Rules in arriving at its decision
resulting in substantial prejudice to
the aggrieved party;

The petition shall be filed within 15 days


from notice of the judgment or final order or
resolution appealed from, or of the denial of
the petitioner's motion for new trial or
reconsideration filed in due time after
notice of the judgment.

2. Erred in upholding a final order or


decision despite the lack of
jurisdiction of the court that
rendered such final order or
decision;

On motion duly filed and served, with full


payment of the docket and other lawful fees
and the deposit for costs before the
expiration of the reglementary period, the
SC may for justifiable reasons grant an
extension of 30 days only within which to
file the petition.

3. Failed to apply any provision, principle,


policy or rule contained in these Special
ADR Rules resulting in substantial
prejudice to the aggrieved party; and
4. Committed an error so egregious
and harmful to a party as to
amount to an undeniable excess of
jurisdiction.
The mere fact that the petitioner disagrees
with CAs determination of questions of fact,
of law or both questions of fact and law,
shall not warrant the exercise of the
Supreme Courts discretionary power. The
error imputed to the CA must be grounded
upon any of the above prescribed grounds

PART VII
FINAL PROVISIONS
RULE 21: COSTS

Rule 21.6. Governments


from payment of fees.

exemption

The Republic of thePhilippines, its agencies


and instrumentalities are exempt from
paying legal fees provided in these Special
ADR Rules. Local governments and
government controlled corporation with or
with or without independent charters are
not exempt from paying such fees.

RULE 22: APPLICABILITY OF THE


RULES OF COURT
Rule 22.1. Applicability of Rules of
Court.
Theprovisions of the Rules of Court that are
applicable to the proceedings enumerated
in Rule 1.1 of these Special ADR Rules have
either been included and incorporated in
these Special ADR Rules or specifically
referred to herein.
In connection with the above proceedings,
the Rules of Evidence shall be liberally
construed to achieve the objectives of the
Special ADR Rules.

RULE 25: ONLINE DISPUTE


RESOLUTION
Rule 25.1. Applicability of the Special
ADR Rules to Online Dispute Resolution
Wheneverapplicable and appropriate, the
Special ADR Rules shall govern the
procedure for matters brought before the
court involving Online Dispute Resolution.
Rule 25.2. Scope of Online Dispute
Resolution
Online Dispute Resolution shall refer to all
electronic forms of ADR including the use
of the internet and other web or computed
based technologies for facilitating ADR.
Rule 26.1. Effectivity.
The Special ADR Rulesshall take effect 15
days after its complete publication in 2
newspapers of general circulation.

RULE A: GUIDELINES FOR THE


RESOLUTION OF ISSUES RELATED TO
ARBITRATION OF LOANS SECURED BY
COLLATERAL
Rule A.1. Applicability

RULE 24: TRANSITORY PROVISIONS


Rule 24.1. Transitory Provision.
Considering itsprocedural character, the
Special ADR Rules shall be applicable to all
pending arbitration, mediation or other
ADR forms covered by the ADR Act, unless
the parties agree otherwise. The Special
ADR Rules, however, may not prejudice or
impair vested rights in accordance with law.

An arbitration agreementin a contract of


loan extends to the accessory contract
securing the loan such as a pledge or a
mortgage executed by the borrower in favor
of the lender under that contract of loan.
Foreclosure of
pledge
or
extrajudicialforeclosure of mortgage not
precluded byarbitration
The commencement of the arbitral
proceeding under the contract of loan
containing an arbitration agreement shall

NOT preclude the lender from availing


himself of the right to obtain satisfaction of
the loan under the accessory contract by:
1. foreclosure of the thing pledged or
2. extra-judicial
foreclosure
of
the
collateral under the real estate mortgage
Prior to the commencement of the
arbitralproceeding, the lender may also
institute foreclosure proceedings against
the collateral securing the loan.
By agreeing to refer any dispute to
arbitration, the lender who is secured by a
real estate mortgage shall be deemed to
have WAIVED the remedy of judicial
foreclosure.
Remedy of the borrower against an
action taken by the lender against the
collateral BEFORE the constitution of
the arbitral tribunal The borrower may,
apply with the appropriate court for interim
relief against which may be obtained only in
a special proceeding for that purpose.
Any determination made by the court in
that special proceeding pertaining to the
merits of the controversy, including the
right of the lender to proceed against the
collateral, shall be only provisional.
Remedy of borrower AFTER the arbitral
tribunal has been constituted.After the
arbitral tribunalis constituted, the borrower
may apply to the arbitral tribunal for relief,
including a claim for damages, against such
action of the lender.
An arbitration agreement in a contract of
loan PRECLUDES the borrower providing
security for the loan from filing and/or
proceeding with any action in court to
prevent the lender from foreclosing the
pledge or extra-judicially foreclosing the
mortgage.

If any such action is filed in court, the


lender shall have the right provided in the
Special ADR Rules to have such action
stayed on account of the arbitration
agreement.

Rule A.5. Relief that may be granted by


the arbitral tribunal.
1. The arbitral tribunal, in aid of the
arbitral proceeding before it, may
suspend or enjointhe lender from
proceeding against the collateral
securing the loan upon submissionof
security and during the pendency of
arbitration.
2. It has also the authority to resolve the
issue of the validity of the foreclosure
of the thing pledged or of the
extrajudicial foreclosure of the collateral
under the real estate mortgage if the
same has NOT yet been foreclosed or
3. Confirm
the
validity
of
such
foreclosure ifmade before the rendition
of the arbitral award and had NOT been
enjoined.
Rule A.6. Arbitration involving a thirdparty provider of security.
An arbitration agreementcontained in a
contract of loan extends to an accessory
contract securing the loan executed by a
person other than the borrower only if such
third-party securing the loan has agreed in
the accessory contract, either directly or by
reference,
to
be
bound
by
such
arbitrationagreement.
e.g.
pledge,
mortgage, guaranty andsuretyship UNLESS
otherwise expressly agreed upon by the

third-party
securing
the
loan,
his
agreement to be bound by the arbitration
agreement in the contract of loan shall
pertain to disputes arising from or in
connection with:
1. the relationship between the lender
and the borrower
2. and the relationship between the
lender
and
such
third-party
including the right of the lender to
proceed against the collateral
securing the loan, but shall
EXCLUDE
disputes
on
the
relationship exclusively between the
borrower and the provider of
security such as that involving a
claim by the provider of security for
indemnification
against
the
borrower.
Appointment of Arbitrator in a multipartyarbitration
The

parties

may

agree

to

submit

to

arbitration before a sole arbitrator or a


panel of 3 arbitrators to be appointed
either
by
an
Appointing
Authority
designated by the parties in the arbitration
agreement or by a default Appointing
Authority under the law.
In default of an agreement on the manner
of appointing arbitrators, the dispute shall
be resolved by a panel of 3 arbitrators to be
designated by the Appointing Authority
under the law.
But even in default of an agreement on the
manner of appointing an arbitrator, if
theborrower and the third party
securing the loanagree to designate a
common arbitrator, arbitration shall be
decided by a panel of 3 arbitrators: one to
be designated by the lender; the other to be
designated jointly by the borrower and the
provider of security who have agreed to
designate the same arbitrator; and a 3 rd
arbitrator who shall serve as chairperson of
the arbitral panel to be designated by the 2
party-designated arbitrators.

RULE ON PROVISIONAL ORDERS


(A.M. No. 02-11-12-SC)
Effective March 15, 2003
The issuance of provisional order or
protection order under this rule are
available ONLY upon the filing of the
petition in applicable cases or during the
pendency of the resolution of said petition.
Sec. 2. Spousal Support.

Applicability: The remedies under this


ruleare available in petition for:
1. Declaration of absolute nullity of
void marriage
2. Annulment of voidable marriage
3. Legal separation

In determining supportfor the spouses, the


court may be guided by the following rules:
a. In the absence of adequate provisions in
a written agreement between the
spouses, the spouses may be supported
from the properties of the absolute
community or the
b. Conjugal partnership.
c. The court may award support to either
spouse in such amount and for such
period of time as the court may deem
just and reasonable based on their
standard of living following factors: (AD C3APONE)

Remedies Available
(SC-HAVOC)
1. Spousal Support
2. Child Support of Common Children
3. Child Custody
4. Visitation Rights
5. Hold Departure Order
6. Order of Protection
7. Administration of Community or
Conjugal Property
SEC. 1. When Issued.Upon receipt of a
verifiedpetition for declaration of absolute
nullity of void marriage or for annulment of
voidable marriage, or for legal separation,
and at any time during the proceeding, the
court, motu proprio or upon application
under oath of any of the parties, guardian
or designated custodian, may issue
provisional orders and protection orders
with orwithout a hearing.

These
orders
may
be
enforced
immediately, withor without a bond, and
for such period and undersuch terms and
conditions as the court may deem
necessary.

i.

ii.

whether the spouse seeking support


is the custodian of a child whose
circumstances make it appropriate
for that spouse not to seek outside
employment;
The time necessary to acquire
sufficient education and training to enable
thespouse
seeking
support
to
find
appropriate employment, and that spouses
future earning capacity;
iii. Duration of the marriage;
iv. Comparative financial resources of
thespouses,
including
their
comparative earning abilities in the
labor market;
v. Needs and obligations of each
spouse;
vi. Contribution of each spouse to
themarriage,
including
services

rendered in home-making, child


care, education, and career building
of the other spouse;
vii. Age and health of the spouses;
viii.Physical and emotional conditions of
thespouses;
ix. Ability of the supporting spouse to
givesupport, taking into account
that spouses earning capacity,
earned and unearned income,
assets, and standard of living; and
x. Any other factor the court
may
deem
just
and
equitable.
d.

The Family Court may direct the


deduction of the provisional support
from the salary of the spouse.

Sec. 3. Child Support.


The common children ofthe spouses shall
be supported from the properties of the
absolute community or the conjugal
partnership.
Subject to the sound discretion of the
court, either parent or both may be ordered
to give an amount necessary for the
support, maintenance, and education of the
child. It shall be inproportion to the
resources or means of the giver and to
the necessities of the recipient.
Factors in Determining the Amount of
Child
Support
1. Financial resources of the custodial and
non-custodial parent and those of the
child;
Physical and emotional health of the
child and his or her special needs and
aptitudes;
3. Standard of living the child has been
accustomed to;
4. Non-monetary contributions that the
parents will make toward the care and

well-being of the child.


The Family Court may direct the deduction
of the provisional support from the salary
of the parent.
Sec. 4. Child Custody.
In determining the rightparty or person to
whom the custody of the child of the
parties may be awarded pending the
petition, the court shall consider the best
interests of the child and shall give
paramount consideration to the material
and moral welfare of the child.
Factors in Awarding Provisional Child
Custody
1. Agreement of the parties;
2. Desire and ability of each parent to
foster
an
open
and
loving
relationship between the child and
the, other parent;
3. Childs health, safety, and welfare;.
4. Any history of child or spousal
abuse by the person seeking
custody or who has had any filial
relationship
with
the
child,
including anyone courting the
parent;
5. Nature and frequency of contact
with both parents;
6. Habitual use of alcohol or regulated
substances;
7. Marital misconduct;
8. Most suitable physical, emotional,
spiritual,
psychological
and
educational environment; and
9. The preference of the child, if over 7
years of age and of sufficient
discernment, UNLESS the parent
chosen is unfit.
The court may award provisional custody in
the following ORDER OF PREFERENCE:
1. To both parents jointly;
2. Either parent taking into account all

relevant considerations under the


foregoing paragraph, especially the
choice of the child over seven years
of age, unless the parent chosen is
unfit;
3. Surviving grandparent, or if there
are several of them, to the
grandparent chosen by the child
over seven years of age and of
sufficient discernment, unless the
grandparent is unfit or disqualified;
4. Eldest brother or sister over twenty-one
years of age, unless he or she is unfit or
disqualified;
5. Childs actual custodian over 21 years of
age, unless unfit or disqualified; or
6. Any other person deemed by the court
suitable to provide proper care and
guidance for the child.

The Family Court issuing the hold


departure order shall furnish the DFA and
the BID of the DOJ a copy of the hold
departure order issued within 24 hours
from the time of its issuance and through
the fastest available means of transmittal.

The custodian temporarily designated by


the court shall give the court and the
parents 5 days notice of any plan to change
the residence of the child or take him out of
his residence for more than 3 days provided
it does not prejudice the visitation rights of
the parents.

(CRe2 Pe2 S)

Sec. 5. Visitation Rights.


Appropriate
visitationrights
shall
be
provided to the parent who is not awarded
provisional custody UNLESS found unfit or
disqualified by the court.
Sec. 6. Hold Departure Order.
Pendingresolution of the petition, no child
of the parties shall be brought out of the
country without prior order from the court,
The court, motu proprio or upon
application under oath, may issue ex-parte
a hold departure order, addressed to the
Bureau of Immigration and Deportation
(BID), directing it not to allow the departure
of the child from the Philippines without
the permission of the court.

RECALL
The court may recall the order, motu
proprio or upon verified motion of any of
the parties after summary hearing, subject
to such terms and conditions as may be
necessary for the best interests of the child.
Sec. 7. Order of Protection.
The court may issuean Order of Protection
requiring any person:
1. To stay away from the home, school,
business, or place of employment of the
child, other parent or any other party,
and to stay away from any other specific
place designated by the court;
2. To
refrain
from
harassing,
intimidating, or threatening such
child or the other parent or any
person to whom custody of the child
is awarded;
3. To refrain from acts of commission
or
omission
that
create
an
unreasonable risk to the. health,
safety, or welfare of the child;
4. To permit a parent, or a person
entitled to visitation by a court
order or a separation agreement, to
visit the child at stated periods;
5. To permit a designated party to
enter the residence during a
specified period of time in order to
take
personal
belongings
not
contested in a proceeding pending
with the Family Court;
6. To comply with such other orders as
are necessary for the protection of
the child.

Sec. 8. Administration
Property.

of

Common

Grounds
for
Administration/
Receivership of Common Property
1. If a spouse without just cause
abandons the other or
2. Fails to comply with his or her
family obligations
Upon the existence of any of the grounds
above, the court may, upon application of
the aggrieved party under oath, issue a
provisional order appointing the applicant
or a third person as receiver or sole
administrator of the commonproperty
subject to such precautionary conditions it

may impose.
The receiver or administrator may NOT
dispose of or encumber any common
property or specific separate property of
either spouse without prior authority of
the court.
The provisional order issued by the court
shall be registered in the proper Register of
Deeds and annotated in all titles of
properties subject of the receivership or
administration.
Effectivity.This Rule shall take effect on
March15, 2003 following its publication in a
newspaper of general circulation not later
than March 7, 2003.

GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN


THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES
(A.M. No. 03-1-09-SC)
Effective August 16, 2004
The following guidelines are issued for the
observance and guidance of Trial Judges
and Clerks of Court:
A. CIVIL CASES
Within 1 day from receipt of the complaint:
1. Summons shall be prepared and shall
contain a reminder to defendant to
observe restraint in filing a motion to
dismiss and instead allege the grounds
thereof as defenses in the Answer.
2. The court shall issue an Order requiring
the parties to avail of:
a. Interrogatories to parties (Rule 25)
and request for admission by
adverse party
(Rule 26) or
b. Make use of depositions (Rule 23) or

c. Other measures (Rules 27 &


28) within 5 days from the
filing of the Answer.
Within 5 days from date of filing of the
Reply, the plaintiff must promptly move ex
parte that the case be set for pre-trial
conference. If the plaintiff fails to file said
motion within the given period, the Branch
Clerk of Court (COC) shall issue a notice of
pre-trial.
PROCEDURE
1. At the start of the pre-trial conference,
the judge shall immediately REFER the
parties
and/or
their
counsel
if
authorized by their clients to the PMC
(Philippine
Mediation
Center)
for
MEDIATION.
If mediation fails, the judge will schedule
the
continuance
of
the
pre-trial
conference. Beforethe continuance, the

Judge may refer the case to the COC for a


PRELIMINARY CONFERENCE to assist the
parties in reaching a settlement, to mark
the documents or exhibits to be presented
by the parties and to consider such other
matters as may aid in its prompt
disposition.
The proceedings during .the preliminary
conference shall be recorded in the
"Minutes of Preliminary Conference" to be
signed by both parties and/or counsel.
2. The judge should NOT allow the
termination of pre-trial simply
because of the manifestation of the
parties that they cannot settle the
case. He should expose the parties
to the advantages of pre-trial.
The court shall initially ask the
PARTIES AND THEIR LAWYERS if an
amicable settlement of the case is
possible.
If not, the judge may confer with the
PARTIES WITH THE OPPOSING
COUNSEL
to consider the following:
a. Given the evidence of the
plaintiff presented in his
pre-trial brief, what manner
of compromise is considered
acceptable to the defendant
at the present stage?
b. Given the evidence of the
defendant in his pre-trial
brief,
what
manner
of
compromise is acceptable to
the plaintiff at the present
stage?

If not successful, the court shall


confer with the PARTY AND HIS
COUNSEL SEPARATELY.

If the manner of compromise is not


acceptable, the judge shall confer
with the PARTIES WITHOUT THEIR
COUNSEL for the same purpose of
settlement.

3. If all efforts to settle fail, the trial judge


shall CONDUCT THE PRE-TRIAL.
4. The judge shall issue a PRE-TRIAL
ORDER within 10 days after the
termination of the pre-trial.
5. The court shall endeavor to make
the parties agree to an equitable
compromise or settlement at any
stage of the proceedings before
rendition of judgment.
B. CRIMINAL CASES
PROCEDURE
1. Before arraignment, the Court
shall issue anorder directing the
public prosecutor to submit the
record
of
the
preliminary
investigation to the Branch COC for
the latter to attach the same to the
record of the case.
Where the accused is under preventive
detention, his case shall be raffled and its
records transmitted to the judge to whom
the case was raffled within 3 days from the
filing of the complaint or information.
2. Arraignment - within 10 days from the
dateof the raffle
Pre-trial held within 10 days
afterarraignment unless a shorter
period is provided for by law.
3. After the arraignment, the court shall
set thepre-trial conference within 30
days from the date of arraignment, and
issue an Order:
a. Requiring the private offended party
to appear thereat for purposes of
plea-bargaining except for violations
of the Comprehensive Dangerous

Drugs Act of 2002, and for other


matters requiring his presence;
b. Referring the case to the
Branch
COC
for
a
preliminary conference to
be set at least 3 days prior to
the pre-trial; and
c. Informing the parties that no
evidence shall be allowed to be
presented and offered during the
trial other than those identified and
marked during the pre-trial except
when allowed by the court for good
cause shown.
In mediatable cases, the judge shall
refer the parties and their counsel to
the PMC unit for MEDIATION if
available.
4. During the pre-trial, EXCEPT for
violations
of
the
Comprehensive
Dangerous Drugs Act of 2002, the trial
judge shall consider plea-bargaining
arrangements. Where theprosecution
and the offended party agree to the plea
offered by the accused, the court shall:
a. Issue
an
order
which
contains the plea bargaining
arrived at;
b. Proceed to receive evidence
on the civil aspect of the

case; and
c. Render
and
promulgate
judgment
of
conviction,
including the civil liability or
damages duly established
by the evidence.
5. When plea bargaining fails, the Court
shall CONDUCT THE PRE-TRIAL.
6. All agreements or admissions made or
entered during the pre-trial conference
shall be reduced in writing and signed
by the accused counsel, otherwise, they
cannot be used against the accused.
The agreements covering the matters
referred to in Section 1 of Rule 118
shall be approved by the court.
7. The trial judge shall issue a PRE-TRIAL
ORDER within 10 days after the
termination of the pre-trial.

RULE ON COMMITMENT OF CHILDREN


(A.M. No. 02-1-19-SC)
April 15, 2002
This Rule seeks to protect the child from all
forms of neglect, abuse, cruelty,
exploitation and other conditions
prejudicial to his development (Sec.1).
Definition of Terms
1. "Child" is a person below 18 years of
age.
2. "Dependent child" is one who is
without
aparent,
guardian
or
custodian, or one whose parents,
guardian or other custodian forgood
cause desires to be relieved of his
care and custody, and is dependent
upon the public
for support.
3. "Abandoned child" is one who has
no
properparental
care
or
guardianship, or whose parents or
guardian has deserted him for a
period of at least six (5) continuous
months.
4. "Neglected child" is one whose
basic needshave been deliberately
unattended to or inadequately
attended
to,
physically
or
emotionally, by his parents or
guardian.
5. "Disabled child" includes mentally
retarded,physically
handicapped,
emotionally disturbed and mentally
ill children, children with cerebral
palsy and those with similar
afflictions.
6. "Commitment" or "surrender of a
child" isthe legal act of entrusting a
child to the care of the Department

or
any
duly
licensed
childplacement or child-caring agency or
individual by the court, parent or
guardian or any interested party.
7. "Involuntarily committed child" is
onewhose
parents
have
been
permanently and judicially deprived of
parental authority due to abandonment;
substantial, continuous, or repeated
neglect; abuse; or incompetence to
discharge parental responsibilities in
accordance with Sec. 4.
8. "Voluntarily committed child" is one
whoseparents knowingly and willingly
relinquished parental authority to the
Department or any duly licensed childplacement or child-caring agency or
individual in accordance with Sec.3.
9. "Child-placing or child-placement
agency" refers to a private nonprofit or charitable institution or
government agency duly licensed
and accredited by DSWD to provide
comprehensive
child
welfare
services, including but not limited
to,
receiving
applications
for
adoption or foster care, evaluating
the prospective adoptive or foster
parents and preparing the home
study report.
10. "Child-caring agency" refers to a
private non-profit or charitable
institution or government agency
duly licensed and accredited by the
Department that provides 24-hour
residential
care
services
for
abandoned, orphaned, neglected,
involuntarily
or
voluntarily
committed children.

Grounds

Who may file

Venue

Grounds for
Removal of
Custody

Jurisdiction
for Prosecution
of committed
child who left
without
permission

Involuntary Commitment
Child is dependent, abandoned or
neglected
1. DSWD Sec. or
2. his representative or
3. any
licensed
childplacement or
4. child-caring agency

Family Court of the province or


city:
1. in which the parent or
guardian resides or
2. where the child is found

Neglect

Family Court which granted the


involuntary commitment

INVOLUNTARY COMMITMENT (Sec. 4)


Who may file
The Secretary of the DSWD or his
authorized representative or any duly
licensed child-placement or child-caring
agency having knowledge of a child who
appears to be dependent, abandoned or
neglected, may file a verified petition for
involuntary commitment ofsaid child to
the care of any duly licensed childplacement or child-caring agency or
individual

Voluntary Commitment
Child is dependent,
abandoned or neglected.
1. Parent or
2. Guardian of the
child
to
be
committed
In petition for removal of
custody, Family Court:
1. where the childplacement
or
child
caring
agency to which
the child has been
voluntary
committed
is
located or
2. where the child
may be found
Neglect or voluntary
commitment is
unjustified
Family Court of the
place:
1. where the child
may be found or
2. where the duly
licensed
childplacement
or
child-caring
agency
or
individual
is
located

Guardian Ad Litem of Child


If neither of the parents nor the guardian
of the child can be located or does not
appear in court despite due notice, or if
the court finds them incompetent to
protect the best interests of the child, the
court shall appoint a suitable person as
guardian ad litem to represent the child. A
member of the Philippine Bar may be
appointed guardian ad litem.
Child's Right to Counsel

The child capable of forming his own views


or upon request of his guardian ad litem
may request for a lawyer to represent him
in the proceedings.
Judgment
If, after the hearing, the court shall find
the child to be dependent, abandoned, or
neglected, it shall render judgment
committing him to the care and custody of
DSWD or any duly licensed child-placement
or child-caring agency or individual until he
reaches the age of 18.
However, if the court finds that the
abandonment or neglect of the child may
beremedied, the child may be allowed to
stay in hisown home under the care and
control of his parents or guardian, subject
to supervision and direction of DSWD.
Change of Custody
1. By DSWD If the child is committed
toDSWD, it has the authority to change
the custody of a child it had placed with
any duly licensed child-placement or
child-caring agency or individual if such
change is for the best interests of the
child.
2. By the court which granted the
involuntary
commitment
When
conflicting interestsarise among childplacement or child-caring agencies, the
child and upon motion of DSWD or any
of the agencies concerned, it shall order
the change of commitment of the child.
Removal of Custody
A motion to remove custody of a child may
be filed by an authorized representative of
DSWD with knowledge of the facts against a
child-placement or child-caring agency or
individual to whose custody a child has
been committed by the court on the ground

of neglect of such child as defined in Sec. 3


(e) of this Rule.
Restoration of
Parental
Authority
AfterInvoluntary Commitment
The parents or guardian of a child
committed to the care of a person, agency
or institution by judicial order may file a
verified motion for the restoration of his
rights over the child with the court which
granted the involuntary commitment on the
ground that he is now able to take proper
care and custody of said child, provided,
however, that the child has NOT yet been
adopted.

Jurisdiction
for
Punishable Acts

Prosecution

of

The Family Court which granted the


involuntarycommitment
shall
have
jurisdiction over the prosecution of:
1. Child who left without prior permission
from the person or institution to which
he has been committed or person under
whose custody the child has been
judicially committed
2. Person who induced the child to leave
such person or institution, EXCEPT in
case of actual or imminent grave
physical or moral danger to the child
3. Parents or guardians of the child who
may be held liable under Articles 59 and
60 of P.D. No. 603 and Sections 9, 10
and 31 of R.A. No. 7610.
NOTE:
The
same
rule
applies
toVoluntaryCommitment exceptthat
the
Family Court of theplace where the child
may be found or where the duly licensed

child-placement or child-caring agency or


individual is located shall have jurisdiction
over the prosecution of said persons(Sec. 5
[c]).
VOLUNTARY COMMITMENT (Sec. 5)
The parent or guardian of a dependent,
abandoned
or
neglected
child
may
voluntarily commit him to DSWD or any
duly licensed child-placement or childcaring agency or individual subject to the
rules of DSWD.
Requisites:
1. Child is surrendered in writing;
2. By his parents or guardian;
3. The instrument states such voluntary
commitment and specifically naming the
office, agency, or individual to whose
custody the child is to be committed;
4. Such written instrument is notarized
and signed in the presence of an
authorized representative of DSWD;
5. Made after counseling and other
services have been made available to
encourage the

placement or child-caring agency or


individual on the ground that the voluntary
commitment of the child was unjustified.
Restoration of
Parental
afterVoluntary Commitment

Authority

The restoration of rights of the parent or


guardian over the child who has been
voluntarily committed shall be governed by
the rules of DSWD, provided, however, that
the petition forrestoration is filed within 6
months
from
the
dateof
voluntary
commitment.
In case of refusal by the DSWD to grant
legal custody and parental authority to the
parent or guardian over the child who has
been voluntarily committed to an agency or
individual, the parent or guardian may file
a petition in court forrestoration of
parental authority in accordance with Sec.
4 (p) of this Rule.
COMMITMENT OF A DISABLED CHILD
(Sec. 6)
This is also an involuntary commitment.

child's parents to keep the child.


Petition for Removal of Custody

Who may file

Who may file


The parents or guardian who voluntarily
committed the child, or in their absence or
failure, any person with knowledge of the
facts, may file a verified petition to remove
custody of the child against the childplacement or child-caring agency or
individual to whose custody the child has
been voluntarily committed on the ground
of neglect of such child. A child may also
be removed from the custody of the child-

Where a child appears to be mentally


retarded
physically
handicapped,
emotionally disturbed, mentally ill, with
cerebral palsy or with similar afflictions
and needs institutional care but his parents
or guardians are opposed thereto, the
DSWD, or any duly licensed childplacement or child-caring agency or
individual may file a verified petition for
commitment of the said child to any
reputable
institution
providing
care,

training and rehabilitation for disabled


children.
The parents or guardian of the child may
file a similar petition in case no immediate
placement can be arranged for the disabled
child when his welfare and interests are at
stake,

Venue
The petition for commitment of a disabled
child shall be filed with the Family Court of
the place where the parent or guardian
resides or where the child is found.
Discharge
of
Disabled Child

Judicially

Committed

Upon motion of the parent, guardian or


institution to which the child has been
judicially committed under this Rule, the
court, after hearing, shall order the
discharge of such child if it is established
and certified by the Department that:
1. He is no longer a danger to
himself and the community;
2. He
has
been
sufficiently
rehabilitated from his physical
handicap or if of working age, is
already fit to engage in gainful
occupation; or
3. He has been sufficiently relieved
of his psychological, mental and
emotional problems and is ready
to assume normal social relations

RULE ON LEGAL SEPARATION


(A.M. No. 02-11-11-SC)
Effective March 15, 2003
NOTE: The innovation incorporated in
A.M.
No.02-11-10-SC
sets
forth
a

demarcation line between marriages


covered by the Family Code and those
solemnized under the Civil Code. The Rule
extends only to marriages entered into
during the effectivity of the Family Code
which took effect on August 3, 1988.
It is emphasized, however, that the Rule
does not apply to cases already
commenced before March 15, 2003
although the marriage involved is within
the coverage of the Family Code. This is so,
as the new Rule which became effective on
March 15, 2003 is prospective in its
application. (JuanDe Dios Carlos v..
Felicidad Sandoval, et al., G.R. No. 179922.
December 16, 2008)
Scope
Notwithstanding
separate
provisions
applicable only to legal separation, both
Rules stated above provide for a similar
procedure for:
1. Petition for declaration of absolute
nullity of void marriages,
2. Petition for annulment of
voidable marriages, under the
Family Code, and
3. Petitions for legal separation,
under the Family code.
The
Rules
of
Court
shall
apply
suppletorily.
DECLARATIO
LEGAL
N OF
SEPARATION
ABSOLUTE
NULLITY
Only by the
husband or
wife, as the
case may be
within 5 years
Solely by the
WHO
from the time
husband or
MAY
of the
wife.
FILE
occurrence of
any of the
causes for
legal

VENU
E

WHEN
TO
FILE

separation.
RESIDENT PETITIONER/
RESPONDENT:
Family Court of the place where
he is residing for atleast 6
months prior to the date of
filing.
NON-RESIDENT RESPONDENT:
Family Court where he may be
found in the Philippines, at the
election of the petitioner.
The action
must be filed
within 5 years
The action or
from tha time
defense DOES
of the
NOT
occurrence of
prescribe.
the cause.

The Rationale of the Rules on Annulment


of Voidable Marriages and Declaration of
Absolute Nullity of Void Marriages, Legal
Separation
and
Provisional
Orders
explicates on Section 2(a) in the following
manner, viz: Only an aggrieved or injured

spouse may file petitions for annulment of


voidable marriages and declaration of
absolute nullity of void marriages. Such
petitions cannot be filed by the compulsory
or intestate heirs of the spouses or by the
State. [Sec. 2; Section 3,paragraph a]
Only an aggrieved or injured spouse may
file a petition for annulment of voidable
marriages or declaration of absolute nullity
of void marriages. Such petition cannot be
filed by compulsory or intestate heirs of the
spouses or by the State. The Committee is
of the belief that they do not have a legal
right to file the petition. Compulsory or
intestate heirs have only inchoate rights
prior to the death of their predecessor, and
hence can only question the validity of the
marriage of the spouses upon the death of
a spouse in a proceeding for the settlement
of the estate of the deceased spouse filed in
the regular courts. On the other hand, the
concern of the State is to preserve
marriage and not to seek its dissolution
(Enrico v. Heirs of Sps. Medinaceli, G.R. No.
173614, September 28, 2007, 534 SCRA
418).

PETITION FOR ANNULMENT OF VOIDABLE


GROUND
WHO MAY FILE
WHEN TO FILE
Within 5 yrs.
Contracting party
after
Marriage was
afterattaining the
attaining the age
solemnized
age of 21
of 21
without the
consent of the
Parent, or
At any time
parents, guardian
guardian, or
before
or person having
person exercising
such party has
substitute
substitute
reached the age
parental authority
parental
of
over the party
authority over the
21
contracting party
At any time
The sane spouse
before
who had no
the death of
knowledge of the
either
other's insanity
party
Any relative,
Either party was
guardian, or
of unsound mind
person having
legal charge of the
insane
During the a
By the insane
lucid
spouse
interval or after
regaining sanity
Within 5 yrs.
The consent of
after the
either party was
Injured party
discovery of the
obtained by fraud
fraud
The consent of
Injured party
Within 5 yrs.
either party was
from the time the
obtained by force,
force
intimidation or
intimidation, or
undue influence
undue influence
disappeared or
ceased

MARRIAGES
WHERE TO FILE

RESIDENT
PETITIONER/RESPONDENT:
Family Court of the place
where he is residing for at
least 6 mos. prior to the date
of filing
NON-RESIDENT
RESPONDENT:
Family Court where he may
be found in the Phils. at the
election of the petitioner

Either party was


physically
incapable of
consummating
the marriage with
the other and
such incapability
continues and
appears to be
incurable
Either party was
inflicted with a
sexually
transmissible
disease found
to be serious and
appears
to be incurable
What to Allege

Injured party

Within 5 yrs.
after the
celebration of
marriage

Injured party

Within 5 yrs.
after the
celebration of
marriage

similarly requiring urgent action.

The complete facts showing the either or


both
parties
were
psychologically
incapacitated should allege the physical
manifestations, if any, as are indicative of
psychological incapacity at the time of the
celebration of the marriage BUT expert
opinion need not be alleged.

Form of Petition
1. Verified

Contents of Petition

NOTE: No petition may be filed solely by


counselor through an attorney-in-fact.

1. The petition shall allege the complete


facts constituting the cause of action.
2. It shall state the names and ages of the
common children of the parties and
specify the regime governing their
property relations, as well as the
properties involved.
If there is no adequate provision in a
written agreement between the parties, the
petitioner may apply for a Provisional
Order(A.M. No. 02-11-12-SC, March 15,
2003) for spousal support,custody and
support of common children, visitation
rights, administration of community or
conjugal property, and other matters

2. Accompanied by a certification against


forum shopping and
3. The Verification and Certification must
be signed personally by the petitioner

Motion to Dismiss
No motion to dismiss the petition shall be
allowed EXCEPT on the ground of lack of
jurisdiction over the subject matter or over
the parties; provided, however, that any
other ground that might warrant a dismissal
of the case may be raised as an affirmative
defense in an answer.

Answer
1. Respondent shall file his answer
within 15 days from service of
summons, or within 30 days from
the last issue of publication in case

of
service
of
summons
by
publication. Failure to do so,
he/she shall NOT be declared in
default.
The answer must be VERIFIED by the
respondent himself and not by counsel
or attorney-in-fact.
2. Where no answer is filed or if the
answer does not tender an issue, the
court shall order the public prosecutor
to investigate whether collusion exists
between the parties.
Investigation
Prosecutor

Report

of

Public

Within 1 month after receipt of the court


order, the public prosecutor shall submit a
report to the court stating whether the
parties are in collusion.
COLLUSION EXISTS
The public prosecutor shall state the on
the finding of collusion within 10 days
from receipt of a copy of a report The court
shall set the report for hearing and If
convinced that the parties are in collusion,
it shall dismiss the petition.
NO COLLUSION EXISTS
The court shall set the case for pre-trial. It
shallbe the duty of the public prosecutor
to appear for the State at the pre-trial.
Mandatory Pre-trial
On motion or motu proprio, the court shall
set the pre-trial after the last pleading has
been served and filed, or upon receipt of
the report of the public prosecutor that no
collusion exists between the parties.

Contents of Pre-trial Brief


The pre-trial
following:

brief

shall

contain

the

1. A statement of the willingness of the


parties to enter into agreements as
may be allowed by law, indicating the
desired terms thereof;
2. A concise statement of their respective
claims together with the applicable laws
and authorities;
3. Admitted
facts
and
proposed
stipulations of facts, as well as the
disputed factual and legal issues;
4. All the evidence to be presented,
including expert opinion, if any,
briefly stating or describing the
nature and purpose thereof;
5. The number and names of the
witnesses and their respective
affidavits; and
6. Such other matters as the court may
require.
Effect of Failure to Appear at the Pre-trial
5. If the petitioner fails to
appear personally, the case
shall be dismissed UNLESS
his counsel or a duly
authorized
representative
appears in court and proves
a valid excuse for the nonappearance of the petitioner.
6. If the respondent has filed
his answer butfails to
appear, the court shall
proceed withthe pre-trial and
require the public prosecutor

to investigate the nonappearance


of
the
respondent
and
submit
within 5 days thereafter a
report to the court stating
whether
his
nonappearance is due to any
collusion
between
the
parties. If there is no
collusion, the court shall
require
the
public
prosecutor to intervene for
the State during the trial on
the
merits
to
prevent
suppression or fabrication
of evidence.

Failure to file the pre-trial brief or to


comply with its required contents shall
have the same effect as failure to appear at
the pre-trial under the succeeding
paragraphs (Sec. 12).

1. Civil status of persons


2. Validity of a marriage or of
a legalseparation;
3. Any ground for legal separation
4. Future support;
5. Jurisdiction of courts; and
6. Future legitime.
Trial
The presiding judge shall personally
conduct the trial of the case. No delegation
of the reception of evidence to a
commissioner shall be allowed EXCEPT as
to matters involving property relations of the
spouses.
The grounds for declaration of absolute
nullity or annulment of marriage must be
PROVED. No judgment on the pleadings,
summary judgment, or confession of
judgment shall be allowed (Sec.17).

Pre-trial conference. - At the pretrialconference, the court may refer the


issues to MEDIATION.
The mediator shall render a report within
1 month from referral which, for good
reasons, the court may extend for a period
not exceeding 1 month.
In case mediation is not availed of or
where itfails, the court shall proceed with
the pre-trialconference, on which occasion
it shall consider the advisability of
receiving expert testimony and such other
makers as may aid in the prompt
disposition of the petition.
MATTERS
THAT
COMPROMISED
(J-CiVAFF)

CANNOT

BE

Decision
1. If the court granted the petition, it shall
declare therein that the decree of
absolute nullity or decree of annulment
shall be issued by the court only after
compliance with Art. 50 and 51 of the
Family Code as implemented under the
Rule on Liquidation, Partition and
Distribution of Properties.
2. The decision becomes FINAL upon the
expiration of 15 days from notice to the
parties.
3. Upon the finality of the decision, the
court shall issue the corresponding
decree if the parties have no properties.
If the parties have properties, the court

shall observe the procedure prescribed in


Sec. 21 of this Rule.
The entry of judgment shall be registered
in the Civil Registry where the marriage
was recorded and In the Civil Registry
where the Family Court granting the
petition for declaration of absolute nullity
or annulment of marriage is located.
Appeal
Pre-condition No appeal from the
decision shallbe allowed UNLESS the
appellant
has
filed
a
motion
for
reconsideration or new trial within 15 days
from notice of judgment.
Notice of appeal An aggrieved party or
theSolicitor General may appeal from the
decision by filing a Notice of Appeal within
15 days from notice of denial of the motion
for reconsideration or new trial.
Issuance of Decree of Declaration of
Absolute Nullity or Annulment of
Marriage
Pre-requisites for Issuance of Decree
1. Registration of the entry of
judgment granting the petition in
the
Civil
Registrywhere
the
marriage was celebrated and in the
Civil Registry of the place where the
Family Court is located;
2. Registration of the approved
partition and distribution of the
properties of the spouses,in the
Register of Deeds where the real
properties are located; and
3. Delivery
of
the
children's
presumptive legitimes in cash,
property, or soundsecurities.

EXCEPT in the case of children under


Articles 36 and 53 of the Family Code, the
court shall order the Local Civil Registrar to
issue
an
amended
birth
certificate
indicating the new civil status of
the children affected.
Registration and publication
decree; decree as best evidence

of

the

a. Registration of Decree The prevailing


partyshall cause the registration of the
Decree in the Civil Registry where the
marriage was registered, the Civil
Registry of the place where the Family
Court is situated, and in the National
Census and Statistics Office (NCSO). He
shall report td the court compliance with
this requirement within 30 days from
receipt of the copy of the Decree.
b. Publication of Decree In case service
ofsummons was made by publication,
the parties shall cause the publication of
the Decree once in a newspaper of
general circulation.
The registered Decree shall be the Best
Evidence to prove the declaration of
absolute nullity or annulment of marriage
and shall serve as notice to third persons
concerning the properties of petitioner and
respondent as well as the properties or
presumptive legitimes delivered to their
common children.

EFFECT OF DEATH OF A PARTY


Death at any stage of the proceedings
before entry of judgment The court shall
order the case closed and terminated,
without prejudice to the settlement of the
estate in proper proceedings
Death after entry of judgment of nullity

orannulment The judgment shall be


binding uponthe parties and their
successors in interest in the settlement of
the estate in the regular courts
SEPARATE PROVISIONS
SEPARATION

ON

LEGAL

SEC. 16. Decision


a. The court shall deny the petition on
any of the grounds provided under
the Family Code, to wit: (GBC3)
1. The aggrieved party has condoned
the offense or act complained of or
has consented to the commission of
the offense or act complained of;
2. There
is
connivance
in
the
commission of the offense-or act
constituting the ground for legal
separation;
3. Both parties have given ground for
legal separation;
4. There is collusion between the
parties to obtain the decree of legal
separation; or
5. The action is barred by prescription.
b. If the court renders a decision
granting thepetition, it shall
declare therein that theDecree of
Legal Separation shall be issued by
the court only after full compliance
with liquidation under the Family
Code.
However, in the absence of any property
of.the parties, the court shall forthwith
issue a Decree of Legal Separation
which shall be registered in the Civil
Registry where the marriage was
recorded and in the Civil Registry
where the Family Court granting the
legal separation is located.

c. The decision shall likewise declare that:


1. The spouses are entitled to
live separately from each
other but the marriage bond
is not severed;
2. The obligation of mutual
support between the spouses
ceases; and
3. The offending spouse is
disqualified from inheriting
from the innocent spouse by
intestate succession, and
provisions in favor of the
offending spouse made in the
will of the innocent spouse
are revoked by operation of
law.
SEC. 22. Petition for Revocation of
Donations
a. Within 5 years from the date the decision
granting the petition for legal separation
has become final, the innocent spouse
may file a petition under oath the same
proceeding for legal separation to revoke
the donations in favor of the offending
spouse.
b. The revocation of the donations shall be
recorded in the Register of Deeds of
Deeds inthe places where the properties
are located.
c. Alienations,
liens,
and
encumbrances registered in good
faith before the recording of the
petition for revocation in the
registries of property shall be
respected.
Revocation of Designation as Beneficiary
After the issuance of the Decree of Legal
Separation, the innocent spouse may revoke
the designation of the offending spouse as a

beneficiary in any insurance policy even if


such
designation
be
stipulated
as
irrevocable. The revocation or change shall
take effect upon written notification thereof
to the insurer.

new regime.
The decree of reconciliation shall be
recorded in the Civil Registries where the
marriage and the Decree had been
registered.

SEC. 23. Decree of Reconciliation


If the spouses had reconciled, a
jointmanifestation under oath, duly
signed by thespouses, may be filed in the
same proceeding for legal separation.
1. RECONCILIATION
WHILE
PROCEEDING
FOR
LEGAL
SEPARATION IS PENDING The
courtshall immediately issue an
order terminating the proceeding.

2. RECONCILIATION
AFTER
JUDGMENT GRANTING PETITION
BUT BEFORE ISSUANCE OF
DECREE
The
spouses
shall
express
intheir
manifestation
whether or not they agree to revive
the former regime of their property
relations or choose a new regime.
The court shall immediately issue a
Decree ofReconciliation declaring
that the legalseparation proceeding is
set aside and specifying the regime of
property relations under which the
spouses shall be covered.
3. RECONCILIATION AFTER ISSUANCE
OF DECREE The court, upon proper
motion,shall issue a Decree of
Reconciliation declaring that the
Decree is set aside but the separation
of property and any forfeiture of the
share of the guilty spouse already
effected subsists, UNLESS the spouses
have agreed to revive their former
regime of property relations or adopt a

SEC. 24. Revival of property regime or


adoption of another
a. In case of reconciliation under Sec.
23, par. 2 above, the parties shall file
a verified motion for revival of
regime of property relations or the
adoption of another regime of
property relations in the same
proceeding for legal separation
attaching to said motion their
agreement for the approval of the
court.
b. The verified agreement shall specify
the following:
1. Properties to be contributed
to the restored or new regime;
2. Those to be retained as
separate properties of each
spouse; and
3. Names of all their known
creditors, their addresses,
and the amounts owing to
each.
c. The creditors shall be furnished with
copies of the motion and the
agreement.
d. The court shall require the spouses to
cause the publication of their verified
motion for 2 consecutive weeks in a
newspaper of general circulation.
e. If the motion was granted, after due
hearing, the court shall issue an order

directing the parties to record the order


in the proper registries of property
within 30 days from receipt of a copy of
the order and submit proof of
compliance within the same period.

JUDICIAL AFFIDAVIT RULE


(A.M. No. 12-8-8-SC)
Section 3. Contents of judicial Affidavit.
SCOPE AND WHERE APPLICABLE
Section 1. Scope.
(a) This Rule shall apply to all actions,
proceedings, and incidents requiring the
reception of evidence before:
(1) The Metropolitan Trial Courts, the
Municipal Trial Courts in Cities, the
Municipal Trial Courts, the Municipal
Circuit Trial Courts, and the Shari' a
Circuit Courts but shall not apply to
small claims cases under A.M. 08-8-7SC;
(2) The Regional Trial Courts and the
Shari'a District Courts;
(3) The Sandiganbayan, the Court of Tax
Appeals, the Court of Appeals, and the
Shari'a Appellate Courts;
(4) The investigating officers and bodies
authorized by the Supreme Court to
receive
evidence,
including
the
Integrated Bar of the Philippine (IBP);
and
(5) The special courts and quasi-judicial
bodies, whose rules of procedure are
subject to disapproval of the Supreme
Court, insofar as their existing rules of
procedure contravene the provisions of
this Rule.1
(b) For the purpose of brevity, the above
courts,
quasi-judicial
bodies,
or
investigating officers shall be uniformly
referred to here as the "court."

CONTENTS

A judicial affidavit shall be prepared in the


language known to the witness and, if not in
English or Filipino, accompanied by a
translation in English or Filipino, and shall
contain the following:
(a) The name, age, residence or business
address, and occupation of the witness;
(b) The name and address of the
lawyer who conducts or supervises
the examination of the witness and
the place where the examination is
being held;
(c) A statement that the witness is
answering the questions asked of him,
fully conscious that he does so under
oath, and that he may face criminal
liability for false testimony or perjury;
(d) Questions asked of the witness and
his
corresponding
answers,
consecutively numbered, that:
(1) Show
the
circumstances
under which the witness
acquired the facts upon
which he testifies;
(2) Elicit from him those facts which are
relevant to the issues that the case
presents; and
(3)

Identify the attached documentary


and object evidence and establish
their authenticity in accordance with
the Rules of Court;

(e) The signature of the witness over his


printed name; and
(f) A jurat with the signature of the

notary public who administers the


oath or an officer who is authorized
by law to administer the same.
Section 4. Sworn attestation of the
lawyer.
(a) The judicial affidavit shall contain a
sworn attestation at the end,
executed by the lawyer who
conducted
or
supervised
the
examination of the witness, to the
effect that:
(1) He faithfully recorded or caused to
berecorded the questions he asked and
thecorresponding answers that the
witness gave; and
(2) Neither he nor any other
person then present or
assisting him coached the
witness
regarding
the
latter's answers.
(b) A false attestation shall subject the
lawyer mentioned to disciplinary
action, including disbarment.
Procedure
1. The parties shall file with the court
and serve on the adverse party,
personally
or
bylicensed
courier
service, not later than five days before
pre-trial or preliminary conference or
the scheduled hearing with respect to
motions and incidents, the following:
(1) The judicial affidavits of their
witnesses, which shall take the
place of such witnesses' direct
testimonies; and
(2) The parties' documentary or object
evidence, if any, which shall be
attached to the judicial affidavits

and marked as Exhibits A, B, C, and


so on in the case of the complainant
or the plaintiff, and as Exhibits 1, 2,
3, and so on in the case of the
respondent or the defendant (Sec. 2,
par. [a]).
NOTE: Such judicial affidavits and exhibits
are inlieu of direct testimonies as expressly
provided by the title of this section.
Should a party or a witness desire to
keep the original document or object
evidence in his possession, he may,
after the same hasbeen identified,
marked as exhibit, and authenticated,
warrant in his judicialaffidavit that the
copy or reproduction attached to such
affidavit
is
a
faithful
copy
or
reproduction of that original. In
addition, the party or witness shall
bring the original document or object
evidence for comparison during the
preliminary
conference
with
the
attached
copy,
reproduction,
or
pictures, failing which the latter shall
not be admitted.
This is without prejudice to the
introduction of secondary evidence in
place of the original when allowed by
existing rules (Sec. 2, par. [b]).
Subpoena. If the government employee
orofficial, or the requested witness, who is
neither the witness of the adverse party nor
a hostile witness, unjustifiably declines to
execute a judicial affidavit or refuses
withoutjust cause to make the relevant
books,documents, or other things under his
control available for copying, authentication,
and eventual production in court, the
requesting party may avail himself of the
issuance of a subpoena ad testificandum or
duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a
subpoena to the witness in this case shall
be the same as when taking his deposition

except that the taking of a judicial affidavit


shal1 be understood to be ex parte (Sec. 5).
Offer of and objections to testimony in
judicial affidavit.
The party presenting the judicial affidavit
of his witness in place of direct testimony
shall state the purpose of such testimony
at the start of thepresentation of the
witness. The adverse partymay move to
disqualify the witness or to strike out his
affidavit or any of the answers found in it
on ground of inadmissibility. The court
shall promptly rule on the motion and,if
granted, shallcause the marking of any
excluded answer by placing it in brackets
under the initials of an authorized court
personnel, without prejudice to a tender of
excluded evidence under Section 40 of Rule
132 of the Rules of Court (Sec. 6)

Oral offer of and objections to exhibits.


(a) Upon the termination of the testimony of
his last witness, a party shall immediately
make an oral offer of evidence of his
documentary or object exhibits, piece by
piece, in their chronological order, stating
the purpose or purposes for which he
offers the particular exhibit.
(b)

After each piece of exhibit is offered,


the adverse party shall state the legal
ground for his objection, if any, to its
admission, and the court shall immediately
make its ruling respecting that exhibit.

(c) Since the documentary or object exhibits


form part of the judicial affidavits that
describe and authenticate them, it is
sufficient that such exhibits are simply
cited by their markings during the offers,
the objections, and the rulings, dispensing
with the description of each exhibit (Sec.
8).

2. The adverse party shall have the right


tocross-examine the witness on his
judicialaffidavit and on the exhibits
attached to the same (Sec. 7).
3. The party who presents the
witness may also examine
him as on re-direct (Sec. 7).
NOTE: In EVERY case, the court shall
takeactivepart in examining the witness to
determine hiscredibility as well as the truth
of his testimony and to elicit the answers
that it needs for resolving the issues (Sec.
7).
APPLICATION TO CRIMINAL ACTIONS
APPLICATION TO CRIMINAL ACTIONS
Section 9. Application of rule to criminal
actions.
(a) This rule shall apply to all criminal
actions:
(1) Where the maximum of the imposable
penalty does NOT EXCEED six years;
(2) Where the accused AGREES to the use
of judicial affidavits, irrespective of the
penalty involved; or
(3) With respect to the CIVIL ASPECT OF
THE ACTIONS, whatever the penalties
involved are.
(b) The prosecution shall submit the judicial
affidavits of its witnesses not later than five
daysbefore the pre-trial, serving copies if the
sameupon the accused. The complainant or
public prosecutor shall attach to the
affidavits such documentary or object
evidence as he may have, marking them as
Exhibits A, B, C, and so on. No further
judicial affidavit, documentary, or object

evidence shall be admitted at the trial.


(c) If the accused desires to be heard on his
defense after receipt of the judicial
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit
as well as those of his witnesses to the
court within ten days from receipt of such
affidavits and serve a copy of each on the
public and private prosecutor, including
his documentary and object evidence
previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct
testimonies of the accused and his
witnesses when they appear before the
court to testify.
EFFECT ON NON-COMPLIANCE
Section 10. Effect of non-compliance
with the judicial Affidavit Rule.
(a) A party who fails to submit the required
judicial affidavits and exhibits on time
shall be deemed to have waived their
submission. The court may, however,
allow only once the late submission of
the same provided, the delay is for a
valid reason, would not unduly
prejudice the opposing party, and the
defaulting party pays a fine of not less
than P 1,000.00 nor more than P
5,000.00 at the discretion of the court.
(b) The court shall not consider the
affidavit of any witness who fails to
appear at the scheduled hearing of the
case as required. Counsel who fails to
appear without valid cause despite
notice shall be deemed to have waived
his client's right to confront by crossexamination
the
witnesses
there
present.
(c) The court shall not admit as evidence
judicial affidavits that do not conform
to the content requirements of Section

3 and the attestation requirement of


Section 4 above. The court may, however,
allow
only
once
the
subsequent
submission
of
the
compliant
replacement affidavits before the hearing
or trial provided the delay is for a valid
reason and would not unduly prejudice
the opposing party and provided further,
that
public
or
private
counsel
responsible for their preparation and
submission pays a fine of not less than P
1,000.00 nor more than P 5,000.00, at
the discretion of the court.
EFFECT ON OTHER RULES
Section 11. Repeal
of inconsistent rules.

or

modification

The provisions of the Rules of Court and the


rules of procedure governing investigating
officers and bodies authorized by the
Supreme Court to receive evidence are
repealed or modified insofar as these are
inconsistent with the provisions of this
Rule.
The rules of procedure governing quasijudicial bodies inconsistent herewith are
hereby disapproved.
Section 12. Effectivity.
This rule shall take effect on January 1,
2013 following its publication in two
newspapers of general circulation not later
than September 15, 2012. It shall also apply
to existing cases.

EFFICIENT USE OF PAPER RULE


(A.M. No. 11-9-4-SC)
an upper margin of 1.2 inches from the
edge; a right hand margin of 1.0 inch from
the edge; and a lower margin of 1.0 inch
Sec. 1. Title of the Rule.
from the edge. Every page must be
consecutively numbered.
This rule shall be known and cited as the
Efficient Use of Paper Rule.

Sec. 2. Applicability.
This rule shall apply to ALL courts and
quasijudicial
bodies
under
the
administrativesupervision of the Supreme
Court.

Sec. 3. Format and Style.


a) All pleadings, motions, and similar papers
intended for the court and quasi-judicial
body's consideration and action (courtbound papers) shall be written in single
space with a one-and-a-half space between
paragraphs, using an easily readable font
style of the party's choice, of 14-size font,
and on a 13-inch by 8.5-inch white bond
paper; and
b) All decisions, resolutions, and orders
issued by courts and by quasi-judicial
bodies
under
the
administrative
supervision of the Supreme Court shall
comply with these requirements. Similarly
covered are the reports submitted to the
courts and transcripts of stenographic
notes.

Sec. 4. Margins and Prints.


The parties shall maintain the following
margins on all court-bound papers: a left
hand margin of 1.5 inches from the edge;

Sec. 5. Copies to be filed.


Unless otherwise directed by the court, the
number of court~bound papers that a party
is required or desires to file shall be as
follows:
a. In the Supreme Court, one original
(properly marked) and four copies,
unless the case is referred to the
Court En Bane, in which event, the
parties shall file ten additional
copies. For the En Bane, the parties
need to submit only two sets of
annexes, one attached to the
original and an extra copy. For the
Division, the parties need to submit
also two sets of annexes, one
attached to the original and an extra
copy.
All members of the Court shall share
the extra copies of annexes in the
interest of economy of paper.
Parties to cases before the Supreme
Court are further required, on
voluntary basis for the first six
months following the effectivity of
this
Rule
and
compulsorily
afterwards unless the period is
extended, to submit, simultaneously
with their court-bound papers, soft

copies of the same and their


annexes (the latter in PDF format)
either by email to the Court's e-mail
address or by compact disc (CD).
This requirement is in preparation
for the eventual establishment of an
e-filing paperless system in the
judiciary.
b. In the Court of Appeals and the
Sandiganbayan,
one
original
(properly marked) and two copies
with their annexes;
c. In the Court of Tax Appeals, one
original (properly marked) and
two copies with annexes. On
appeal to the En Bane, one
original (properly marked) and
eight copies with annexes; and
d. In other courts, one original
(properly marked) with the stated
annexes attached to it.

Sec. 6. Annexes Served on Adverse


Party.
A party required by the rules to serve a
copy of his court-bound paper on the
adverse party need not enclose copies of
those annexes that based on the record of
the court such party already has in his
possession .. In the event a party requests
a set of the annexes actually filed with the
court, the party who filed the paper shall
comply with the request within five days

from receipt.

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