REMEDIAL LA W

by

2001 PRE-WEEK NOTES IN

ABELARDO T. DOMONDON2 These Notes were specially prepared by Prof. Abelardo T. Domondon for the exclusive use of the 2001 Bar candidates who attended his Pre-Bar Lectures sponsored by PRIMUS Management Unlimited Services, Inc. held at the Asian Social Institute from August 6-9, 2001. Other reviewees he has personally authorized may also use these Notes. Basic principles are included as well as doctrines enunciated in selected Supreme Court decisions during the period 1991 up to 2000. These Notes are intended to assist the Bar candidate to recollect the probable areas where potential bar questions could be drawn. These Notes are not exhaustive as regular bar review materials on Remedial Law and are not intended to replace the same. WARNING: These materials are protected by copyright. Unauthorized users, including those who lent their copies for xeroxing, shall be punished by the law of KARMA would not pass the BAR or would be unsuccessful and unhappy in life for stealing the author's intellectual property. Only copies with the manual signature of Prof. Domondon, or his authorized representative, on this page are considered as authorized copies. Holders of authorized copies are requested not to lend their copies for xeroxing. Reviewees attending the 2002 Ateneo Bar Review are authorized to use these notes. HOW TO USE THE PRE-WEEK NOTES This work does not use the conventional method of discussing the subject on a "Rule by Rule, Section by Section" method. Instead, it uses the procedural approach, which tries to present, as far as practicable, the steps to be followed in the prosecution or defense of actions. The words in bold are the exact wordings of the Rules of Court, so the reader does not have to cross-refer to the codal provisions. Where the reader is pressed for time he should read only the main headings in bold letters and browse the text. There are certain analytical processes that must be undertaken in order to solve fact centered Bar questions. The processes point the direction as to how the Bar candidate should analyze the Bar questions and how he should formulate his answer.
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Sixth Edition, Copyright 2001 by Abelardo T. Domondon. AB (Eco), BSC (Acctg.), LLB, MA (Eco), LLM, DCL (Cand.). Practicing Lawyer, CPA and Customs Broker. Pre-Bar Reviewer in Mercantile Law, Remedial Law, Taxation, Labor & Social Legislation, and Legal Ethics and Practical Exercises.

It is suggested that the reader should master the processes by applying the concepts contained in the Pre-Week Notes.. There are two groups of questions that are usually asked in Civil Procedure, Provisional Remedies, Special Civil Actions, Special Proceedings and Criminal Procedure. These two groups could be analyzed by answering certain questions. 1. ANALYTICAL QUESTIONS FOR SOLVING FACT CENTERED PROBLEMS IN CIVIL PROCEDURE, PROVISIONAL REMEDIES, SPECIAL CIVIL ACTIONS, SPECIAL PROCEEDINGS AND CRIMINAL PROCEDURE. For the FIRST GROUP, the following questions need to be answered: a. What is the stage of the proceedings ? b. What does the examiner want ? 1) Were prior procedures correctly followed ? 2) What succeeding procedural steps should be undertaken ? The resolution of the SECOND GROUP requires responses to the following: a. Has the proceedings been properly commenced ? b. Are the parties and pleadings correct ? c. Is there an issue concerning pre-trial proceedings ? d. Are there problems with the trial or judgment ? e. Do post-trial issues exist ? 2. FACT CENTERED PROBLEMS IN EVIDENCE MAY BE RESOLVED BY ANSWERING THE FOLLOWING QUESTIONS: Fact centered problems in Evidence may be resolved by answering the following questions: a. What is the purpose of the offer ? b. Is the evidence described in the problem relevant ? c. Is the evidence excluded by any provision of law or specific provision of the Rules of Court ? d. If the evidence is excluded by any provision of law or specific provision of the Rules of Court does it fall under any exception which could result in its admission ? e. Is the weight of evidence required to prove a fact met ? When reading the Pre-Week Notes, the Bar candidate should cover the text, look at the heading in bold letters and should try to recollect the concepts. He then removes the cover and checks if his recollection is accurate. If he has time the Bar candidate should write down the answers to the Review Problems to test his ability to recollect and write down answers within the time limitation. Each question should be answered in six (6) minutes. The Review Problems are the author's forecasted questions. It is to be noted that some of the Review Problems were copied from previous Bar Questions.

CI VIL PR OCE DU RE
GE NER AL PRI NC IPLES
1. What is the object of remedial law ? SUGGESTED ANSWER: The object of procedural law is not to cause undue protraction of the litigation, but a. to facilitate the adjudication of conflicting claims and b. to serve, rather than defeat, the ends of justice. (Santo Tomas University Hospital v. Surla, et al., G.R. No. 129718, prom. August 17, 1998 referring to Continental Leaf Tobacco [Phil.], Inc. v. Intermediate Appellate Court, 140 SCRA 269 citing Dimayacyac v. Court of Appeals, 93 SCRA 265) NOTES AND COMMENTS:: Do not confuse the general object of remedial law with the objective of the Rules of Court of securing a just, speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1, ROC) The object of remedial law is a general statement which refers to the whole spectrum of all areas of remedial law WHILE the objective of the Rules of Court specifically refers only to the Rules. The distinction may only be a matter of semantics because the end result of the object of remedial law with the objective of the Rules of Court is the same. ***2. Define civil procedure. SUGGESTED ANSWER: a. The method of conducting a judicial proceeding b. to resolve disputes involving private parties c. for the purpose of enforcing rights or obtaining redress for the invasion of rights.

THE R ULE - M AK IN G P OWER OF THE SUPRE ME CO UR T

CO URTS, I N G ENE RAL
3. What is the function of courts ? SUGGESTED ANSWER: The function of courts is to decide actual controversies, applying the law, and not to give opinions upon abstract propositions. (Guarduno v. Diaz, 46 Phil. 472) They apply or interpret the laws. They do not formulate policy, which is the province of the legislative and executive branches of government. (Pagpalain Haulers, Inc. v. Honorable Trajano, etc., et al., G.R. No. 133215, prom. July 15, 1999) ***4. What are the measures which ensure the independence of the courts ? SUGGESTED ANSWER: a. The Judiciary shall enjoy fiscal autonomy. b. Appointmens to the judiciary shall be made from the nominees of the Judicial and Bar Council, which appointments do not need any Commission on Appointment confirmation. c. Salaries of members of the judiciary shall be fixed by law and not to be decreased during their continuance in office. d. Members of the judiciary shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. e. Only the Supreme Court shall have the power to discipline judges of lower courts, or order their dismissal. f. Members of the Supreme Court may be removed from office only upon reaching the age of 70 years, incapacioty or through impeachment. g. Members of the judiciary shall not be designated to any agency performing quasijudicial or administrative functions. h. Supreme Court jurisdiction shall not be reduced without its consent.

THE RULES OF C OU RT
5. May the Supreme Court suspend the application of the Rules of Court ? Explain briefly. SUGGESTED ANSWER: Yes. It is within the power of the Court to temper rigid rules in favor of substantial justice. While it is desirable that the Rules of Court be faithfully and even meticulously observed, the Courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. If the rules are intended to ensure the orderly conduct of litigation, it is because of the higher objective they seek which is the protection of substantive rights of the parties. (Lao v. Court of Appeals, et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No. 60647; and the Associated Anglo-American Tobacco Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59, prom. January 17, 2000) When they are rigid and strict in application, resulting in technicalities that tend to frustrate rather than promote justice, the Supreme Court is empowered to suspend its own rules (People of the Philippines v. Flores, et al., G.R. No. 106581, prom. March 3, 1997), and except a particular case from their operation whenever the higher interests of justice so require. (Fortich, etc., et al., v. Corona, et al., G.R. No. 131457, prom. April 24, 1998) NOTES AND COMMENTS: a. Examples where the Supreme Court suspended the application of the Rules of Court: 1) The Court of Appeals may entertain a second motion for reconsideration of its decision although the filing of such motion violates a prohibition thereof. (Lao v. Court of Appeals, , et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No. 60647; and the Associated Anglo-American Tobacco Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59, prom. January 17, 2000 ) 2) The Supreme Court allowed the submission of a certified true copy of the Special Order granting execution pending appeal as substantial compliance with the requirement of Section 1, Rule 65 of the Rules of Court that the petition be accompanied by a certified true copy of the judgment or order subject thereof. (Lao v. Court of Appeals, et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No. 60647, and the Associated Anglo-American Tobacco Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59 prom. January 17, 2000) 3) A petition for review of a CSC Resolution under Rule 45 with the Court of Appeals, although an inappropriate remedy or wrong mode of appeal pursuant to Circular No. 2-90 was reinstated. The Circular should be so interpreted and applied as to attain, not defeat the ultimate purpose of the rules of procedure to achieve substantial justice. (Romero v. Civil Service Commission, 276 SCRA 610, in turn citing A-One Feeds, Inc. v. Court of Appeals et. al., 100 SCRA 590) 4) A dismissal of a petition by the Court of Appeals on the ground that the questioned orders submitted by the petitioner were unsigned duplicate copies, not clearly legible duplicate original certified true copy was reinstated by the Supreme Court. (Reyes, Jr. v. Court of Appeals, et al. G.R. No. 136478, March 27, 2000) b. The Supreme Court does not always suspend the Rules. The payment of the docket and other legal fees within the prescribed period is both mandatory and jurisdictional, Section 1 (c), Rule 50 of the Rules of Court provides: Failure of the appellant to pay the docket and other fees as provided in Section 4 of Rule 41 is a ground for the dismissal of the appeal. Indeed, it has been held that failure of the appellant to conform with the rules on appeal renders the judgment final and executory. Verily, the right to appeal is a statutory right and one who seeks to avail of that right must comply with the statute or the rule. The bare invocation of the interest of substantial justice is not a magic wand that will automatically compel the Supreme Court to suspend procedural rules. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a partys substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. Rules of procedure, especially those prescribing the time within which certain acts must be done, have often been held as absolutely indispensable to the prevention of needless delays

and to the orderly and speedy discharge of business. x x x The reason for rules of this nature is because the dispatch of business by courts would be impossible, and intolerable delays would result, without rules governing practice. x x x Such rules are a necessary incident to the proper, efficient and orderly discharge of judicial functions. T Rules may be relaxed only in exceptionally meritorious cases. (Lazaro et al., v. Court of Appeals, et al., G.R. No. 137761, April 6, 2000) c. Reason for allowing suspension of the rules. The rules on procedure are merely tools designed to facilitate the attainment of justice. Strict adherence to procedural rules is not the end-all and be-all of litigation, although strict adherence to procedural rules must at all times be observed. Adjective law is not to be taken lightly, for without it, the enforcement of substantive laws may not remain assured. Nevertheless, technical rules of procedure are not ends in themselves, but primarily devised and designed to help in the proper and expedient administration of justice. In appropriate cases therefore, the rules may have to be so construed liberally in order to meet and advance the cause of substantial justice. (Lao v. Court of Appeals, et al., G.R. No. 47013; Co v. Court of Appeals, et al., G.R. No. 60647, and the Associated Anglo-American Tobacco Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59 prom. January 17, 2000) d. Cases where the Rules of Procedure do not apply. The Rules of Civil Procedure generally do not apply to land registration cadastral and election codes, naturalization and implementing procedures except by analogy or in a suppletory character and whenever practicable and convenient. Election contests are subject to the Comelec Rules of procedure. (Barrosa v. Hon. Ampig Jr., etc., et al., G.R. No. 138218, prom. March 17, 2000) Examples: 1) The suppletory application of the non-forum shopping requirements under the Rules of Civil Procedure to election cases does not automatically warrant the dismissal of the case with prejudice. Reason: Strict application of the non-forum shopping rule would not work to the best interest of the parties and the electorate. An election contest, unlike an ordinary civil action, is clothed with public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. An election contest involves not only the adjudication of private and pecuniary onterests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. (Ibid.) 2) The appellate court could consider documents attached to the states brief in an appealed naturalization case, even if not presented and offered as evidence in the trial court as required under Sec. 34, Rule 132. The reason for the rule prohibiting the admission of evidence not formally offered is to afford the opposite party the chance to object to their admisibility. There is no denial of due process because objections to the authenticity of the documents could have been made in the briefs filed with the appellate court. (Chia v. Republic, et al., G.R. No. 127240, prom. March 27, 2000) 6. What is the extent of judicial power ? SUGGESTED ANSWER: It includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. (Article VIII, Section 1, 1987 Philippine Constitution) ***7. What is a quasi-judicial function? SUGGESTED ANSWER: A power that rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer. (Sandoval v. Commission on Elections, et al., G.R. No. 133842, prom. January 26, 2000) NOTES AND COMMENTS: A quasi-judicial tribunal cannot ignore the requirements of procedural due process in resolving petitions. (Ibid.)

CIVIL P ROCEDURE, IN GENERAL

TH E FL OW OF C IVIL P ROC ED UR E.

Civil procedure is basically a step by step activity which a student should master in order to grasp the whole picture, as well the various interrelated subjects. This is so, because certain procedures occur from time to time while the action or suit is being heard. For example, different kinds of motions may be filed. Furthermore, certain acts could be done only within certain reglementary periods which if not complied with may result to denial by the court of prayers for relief. It is for these reasons the Notes avoid using the conventional method of discussing the subject matter on a "Rule by Rule, Section by Section" method. Instead it uses the procedural approach, which tries to present, as far as practicable, the steps to be followed in the prosecution or defense of causes of actions. The following outline may be referred to as the "Flow of Civil Procedure," that should be mastered by the student in order to have a thorough grasp of the interrelationships among the concepts discussed. BEFORE FILING THE SUIT A. In General: The criteria for invoking judicial process 1. Actions in general a. Is there a cause of action ? C b. Does the right of action subsist ? Do the following exist ? 1) Estoppel 2) Laches 3) Prescription 4) Forum shopping 5) Res judicata 2. Are there available adequate reliefs and remedies? a. Is there a need for provisional remedies ? B. Who are the parties to a suit ? 1) Parties in general 2) Criteria for invoking judicial process a. Threshold requirements 1) Legal capacity 2) Real party in interest 3) Locus standi 3) Joinder of parties a. Kinds of parties b. Joinder of initial parties 1) Compulsory joinder 2) Permissive joinder c. Impleader 1) Third-fourth, etc. party d. Special joinder devices 1) Class suit 2) Intervention 3) Interpleader C. Determine application of doctrine of preconditions, prior resort, alternative modes of dispute resolution, 1. Compromise 2. Katarunggang Pambarangay 3. Exhaustion of administrative remedies 4. Arbitration and alternative modes of dispute resolution D. Selection of court 1. Different kinds of civil actions a. Ordinary and special b. In rem, in personam, quasi-in rem c. Real, personal d. Local and transitory 2. Hierarchy of courts 3. Jurisdiction 4. Venue

5. Summary procedure E. Pleadings and motions 1. Pleadings in general a. Formal Requirements b. Manner of making allegations in pleadings 2. The complaint a. Joinder of causes of action 1) Permissive 2) Compulsory 3. Filing and service of pleadings and other papers 4. Motions in general a. Filing, service and hearing of motions F. Depositions and discoveries FILING OF THE ACTION. A. Commencement of the action B. Docket fees C. Raffle of cases AFTER FILING OF THE SUIT A. Obtaining jurisdiction over parties 1. Summons in general 2. Methods of service B. Motions that may be filed by the plaintiff 1. To withdraw complaint or to dismiss 2. To amend or supplement the complaint AFTER SERVICE OF SUMMONS BUT BEFORE ANSWER A. Plaintiffs notices, motions and others 1. To withdraw complaint 2. To amend or supplement the complaint 3. To declare in default 4 Opposition to defendant's various motions B. Defendants motions and pleadings after service of summons but before answer 1. Motions a. For bill of particulars b. To expunge the complaint or portions thereof c. To dismiss d. For extension of time to file answer e. Lift order of default 2. Pleadings a. Answer b. Counterclaim c. Third-Party complain d. Cross-claim 3. Others a. Depositions and discoveries b. Oppositions to plaintiff's various motions AFTER DEFENDANT'S ANSWER A. Plaintiff's motions and pleadings after answer 1. Motions a. To withdraw complaint b. To amend or supplement the complaint c. To expunge the answer or any part d. For judgment on the pleadings e. For summary judgment f. To set pre-trial 2. Pleadings

a. Reply b. Answer to counterclaims 3. Others a. Pre-trial brief b. Depositions and discoveries B. Defendant's motions and pleadings after answer 1. Motions a. Oppositions to plaintiff's various motions 2. Others a. Pre-trial brief b. Deposition and discoveries PRE-TRIAL A. Plaintiff's motions 1. To present evidence ex-parte and render judgment B. Defendant's motion 1. Motion to dismiss C. Common motions 1. To postpone 2. For consolidation or severance 3. For trial by commissioner E. Expanding the scope of the suit 1. Joinder of claims or causes of action 2. Joinder of parties DEPOSITIONS AND DISCOVERIES A. Depositions B. Interrogatories to parties C. Admission by adverse party D. Production or inspection of things or documents E. Physical and mental examination of persons TRIAL. A. Trial 1. Order of trial B. Common motions 1. To postpone 2. To amend to conform to evidence AFTER TRIAL, BEFORE JUDGMENT A. Common motion 1. To submit memorandum B .Defendants motion 2. For judgment on demurrer to evidence JUDGMENT AFTER JUDGMENT. A. Common motions 1. For reconsideration 2. For new trial B. Others 1. Notice of appeal 2. Petition for relief from judgment APPEAL A. In general 1. Preliminary concepts 2. Modes and periods of appeals

B. Appeals from judgments or final orders of municipal trial courts 1. In general 2. Procedure for appeals of judgments of municipal trial courts in exercise of original jurisdiction 3. Procedure for appeals of decisions of municipal trial courts in exercise of delegated jurisdiction C. Appeals from decisions of the Regional Trial Courts 1. In general 2. Procedure for ordinary appeals of decisions of the Regional Trial Court in exercise of its original jurisdiction to the Court of Appeals 4. Petition for review from decisions of the Regional Trial Court in the exercise of its appellate jurisdiction to the Court of Appeals 5. Petition for certiorari to the Supreme Court D. Appeals from decisions of the Court of Tax Appeals and quasi-judicial agencies 1. In general 2. Petition for review to the Court of Appeals 3. Petition for certiorari to the Supreme Court E. Appeals from decisions of the Court of Appeals 1. In general 2. Appeal by certiorari to the Supreme Court EXECUTIONS AND SATISFACTION OF JUDGMENTS A. In general 1. Concepts 2. Kinds of execution a. Execution as a matter of right b. Discretionary execution 3. How execution is effected, in general 4. Properties exempt from execution B. Procedure for execution 1. In case of death of party 2. For judgments for money 3. Of judgment for specific act 5. Of special judgments C. Execution sales 1. Sales on execution 2. Conveyance of property sold on execution 3. Redemption of property sold on execution D. Remedies of judgment creditor in aid of execution E. Satisfaction of judgment

BEF ORE F ILI NG THE SUIT

IS T HE RE A CAUSE OF ACTIO N ?
The primary criteria that must be complied with before filing a suit is the existence of a cause of action by the suitor against the adverse party. Without a cause of action the suit must fail because the complaint would be susceptible to the threshold defense of a motion to dismiss or the lack of cause of action could be raised in the answer. The two defenses against lack of a cause of action, are therefore: a. A motion to dismiss, or b. As an affirmative defense in an answer. If the lack of cause of action is apparent on the face of the complaint or other initiatory pleading, then a motion to dismiss may be filed on the ground, That the pleading asserting the claim states no cause of action. (Sec. 1 [g]. Rule 16, ROC) On the other hand if the ground is not raised in a motion to dismiss it may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (1st par., Sec. 6, Rule 16, ROC)

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Of course, even if the lack of cause of action is not apparent on the face of the complaint or initiatory pleading, but the same is pleaded in an answer then failure on the part of complainant (the plaintiff) to show the existence of a cause of action during the course of the trial would ultimately lead to a dismissal of his complaint. *** 8. What are the elements of a cause of action ? SUGGESTED ANSWER: The elements of a cause of action are: a. A legal right in favor of the plaintiff by whatever means and under whatever law it arises or it creates; b. A correlative obligation on the part of the named defendant to respect or not to violate this right; c. An act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff (Republic Planters Bank, et al., v. IAC, et al., 131 SCRA 639), for which the latter may maintain an action for recovery of damages. (Leberman Realty Corporation, et al, v. Typingco, et al., G.R. No. 126647, prom. July 29, 1998) NOTES AND COMMENTS: a. Short definition of cause of action. A cause of action is the fact or combination of facts which affords a party a right to judicial interference in his behalf. It is the reason why the litigation has come about. (Asset Privitization Trust v. Court of Appeals, et al., G.R. No. 81024, prom. February 3. 2000) ***9. Distinguish cause of action from right of action. SUGGESTED ANSWER: a. Cause of action consists of a right belonging to one person and a wrongful act by another which violates that right WHILE right of action is the right to commence and maintain an action; b. Cause of action is a formal statement of the operative facts which give rise to such remedial right WHILE right of action is a remedial right belonging to some person; c. Cause of action is a matter of right and depends on substantive law WHILE right of action is a matter of statement and is governed by the law on procedure. d. A cause of action is not affected by the running of the statute of limitations, estoppel, etc., WHILE a right of action is so affected. 10. The owner of an estate fenced his property, as a result of which the tenants of the apartment adjoining the property lost their passageway. There was no right of way enjoyed by the tenants. Consequently, the tenants left. Could the apartment owner recover damages from the estate owner ? SUGGESTED ANSWER: No. The mere fact that the apartment owner suffered losses does not give rise to a right to recover damages. To warrant the recovery of damages there must be both a right of action for a legal wrong inflicted by the defendant and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of action, since damages are merely part of the remedy for the injury caused by a breach or a wrong. In order that a plaintiff may maintain an action for the injuries of which he complains he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff, a concurrence of injury to the plaintiff and legal responsibility by the person causing it. (Sps. Custodio, et al., v. Court of Appeals, et al., 253 SCRA 483) NOTES AND COMMENTS: *** a. Injury, defined. The illegal invasion of a legal right .(BPI Express Card Corporation v. Court of Appeals, et al., G.R. No. 120639, prom. September 25, 1998) *** b. Damage, defined. The loss, hurt or harm which results from the injury, damages are the recompense or compensation awarded for the damage suffered. .(BPI Express Card Corporation v. Court of Appeals, et al., G.R. No. 120639, prom. September 25, 1998) 11. Atty. Ricardo was the holder of a complimentary credit card issued by BPI Express Card Corporation with a credit limit of P3,000.00 which was subsequently increased to P5,000.00. The application for credit card privileges stated that BPI could automatically suspend a card whose billing has not been paid for more than thirty days. Oftentimes he

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exceeded the credit limit and BPI tolerated this as well as his payment of his account by checks. In October, 1989 he was not able to pay his account amounting to P8,987.84, but BPI demanded from him a check of P15,000.00 which would include his future bills, and was threatening to suspend his credit card. Atty. Ricardo issued a December 15, 1989 postdated check in the amount of P15,000.00 which was received by an employee of BPI on November 23, 1989. On November 28, 1989 BPI sent a letter to Atty. Ricardo by ordinary mail informing him of the temporary suspension of his credit card privileges and unless he settles his account within 5 days from receipt of the letter, his membership will be permanently cancelled. There is no showing that Atty. Ricardo received the letter before December 8, 1989. Confident that he had settled his account with the issuance of the postdated check, Atty. Ricardo invited some guests on December 8, 1989 and entertained them at Cafe Adriatico. When he presented his credit card for the bill amounting to P735.32, said card was dishonored. One of the guests, Mary Ellen, paid the bill using a Unibankard. Under the circumstances, is Atty. Ricardo entitled to damages as a result of the social humiliation and embarrassment he suffered ? SUGGESTED ANSWER: No. It was Atty. Ricardo's failure to settle his obligation which caused the suspension of his credit card and subsequent dishonor at Cafe Adriatico. He can not now pass the blame to BPI for not notifying him of the suspension of his card. As shown by the facts, the application contained the stipulation that BPI could automatically suspend a card whose billing has not been paid for more than thirty days. As a matter of fact, as early as 28 October 1989, BPI could have suspended Atty. Ricardo's card outright. Instead it allowed him to use his card for several weeks. Atty. Ricardo was even notified of the impending suspension of his credit card, which he was presumed to have received because of the disputable presumption that letters duly directed and mailed were received in the regular course of mail. (BPI Express Card Corporation v. Court of Appeals, G.R. No. 120639, prom. September 25, 1998) 12. Fernando filed a complaint for recovery of property against the children of Remigio. The complaint alleged that Fernando bought the property from Alejandro, but was unable to effect the immediate transfer of title in his favor in view of his foreign nationality at the time of the sale. As an assurance of his good faith Alejandro turned over the owner's duplicate copy of the title to Fernando and in addition executed a lease contract in favor of Fernando for 40 years. Subsequently, Alejandro sold the property to his brother Remigio with the understanding that the property is to be held in trust for Fernando and that Remigio would execute the document of sale in favor of Fernando upon the latter's demand. Another lease contract, this time between Fernando and Remigio was executed in favor of Fernando to safeguard his interest over the property. No rents were ever paid by Fernando nor were there demands made upon him. Remigio was killed and during his wake, Fernando reminded his children of the agreement and they promised to transfer the subject property to Fernando who by this time has acquired Filipino citizenship by naturalization. The children never made good their promise and in fact they transferred the property in their names. Upon receipt of the complaint the defendants filed a motion to dismiss claiming among others that the complaint states no cause of action. At the time of the filing of the complaint Alejandro was already dead. Rule on the motion. SUGGESTED ANSWER: Motion denied. Fernando relies simply on the allegation that he is entitled to the property by virtue of a sale between him and Alejandro who is now dead. Obviously, Fernando will rely on parol evidence which, under the circumstances obtaining, cannot be allowed without violating the "Dead Man's Statue" found in Sec. 23, Rule 130 of the Rules of Court. Clearly then, from a reading of the complaint itself, the annexes attached thereto and relevant laws and jurisprudence, the complaint indeed does not spell out any cause of action. (Tan, et al., v. Court of Appeals, et al., G.R. No. 125861, prom. September 9, 1998)

DO ES THE ESTOPPEL

RIG HT

OF A CTIO N STILL S UB SIST ?

13. What is meant by the doctrine of estoppel ?

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SUGGESTED ANSWER: An admission or representation is rendered conclusive upon the person making it and cannot be denied or disproved as against the person making it, and cannot be denied or disproved as against the person relying thereon. A party having performed affirmative acts upon which another person based his subsequent actions, cannot therefore refute his acts or renege on the effects of the same, to prejudice of the latter. (Ducat v. Court of Appeals, et al., G.R. No. 119652, prom. January 20, 2000; Ducat v. Sheriff Carpio, A.M. No. 800-1358, prom. January 20, 2000) NOTES AND COMMENTS: ***a. Example of estoppel. The trial court referred the matter of a computation of the excess payments to SGV. The Manifestation and Urgent Motion to Set Parameters of Computation filed by the petitioner is indicative of his conformity with the order of the referral. If the petitioner thought that the order was wrong, he should have taken recourse to the Court of Appeals. The petition cannot be allowed to make a mockery of judicial processes, by changing his position from one of agreement to disagreement, to suit his needs. If the parties acquiesed in submitting an issue for determination by the trial court, they are estopped from questioning the jurisdiction of the same court to pass upon the issue. (Ibid.) Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense. Voluntary appearance shall be deemed a waiver of this defense. However, assertion of affirmative defenses shall not be construed as estoppel or waiver of the defense of jurisdiction over the person of the defendant. Estoppel by jurisdiction must be unequivocal and intentional. (Millenium Industrial Commercial Corporation v. tan, G.R. No. 131724, prom. February 28, 2000 citing La Naval Drug Corporation v. Court of Appeals, et al., G.R. No. 127480, prom. February 28, 2000)

LACHES
14. What is laches ? SUGGESTED ANSWER: Laches is negligence or omission to assert a right within a reasonable time, warranting the presumption that the party entitled to assert it has either abandoned or declined to assert it. a. Essential elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (2) delay in asserting complainants right after he had knowledge of the defendants conduct and after he has an opportunity to sue; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. (Maestrado, etc. et al., v. Court of Appeals, etc. et al., G.R. No. 133345; Maestrado, et al. v.. Roa, Jr., et al., G.R. No. 133324, prom. March 9, 2000) b. No absolute rule on what constitute laches. It is a creation of equity and applied not really to penalize neglect or sleeping upon ones rights but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation. The question of laches, we said, is addressed to the sound discretion of the court and each case must be decided according to its particular circumstances. (Villanueva-Mijares, et al., v. Court of Appeals, et al., G.R. No. 10892, prom. April 12, 2000 citing Chavez v. Bonto-Perez, 242 SCRA 73, 80) The doctrine of laches or stale demands does not apply against minors whose property was held in trust by predecessor of persons invoking it. (Ibid.) c. Prescription distinguished from laches: 1) Prescription is concerned with the fact of delay WHILE laches is concerned with the effect. 2) Prescription is a matter of time WHILE laches is principally a question of the inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the party or the relation of the parties. 3) Prescription is statutory WHILE laches is not. Laches applies in equity WHILE prescritpion applies at law. 3) Prescription is based on fixed time, while laches is not. (Cutanda, et al., v. Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000 citing Cameclang v. Baun, 208 SCRA 179)

13

d. No laches if case filed within prescrptive period. The doctrine of laches is inapplicable where the action was filed within the prescriptive period provided by law. Thus, laches does not apply in a case where petitioners possession of the subject lot has rendered their right to bring an action for quieting of title imprescriptible and, hence, not barred by laches. Moreover, since laches is a creation of equity, acts or conduct alleged to constitute the same must be intentional and unequivocal so as to avoid injustice. Laches operates not really to penalize neglect or sleeping on ones rights, but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation. (Maestrado, etc. et al., v. Court of Appeals, etc. et al., G.R. No. 133345; Maestrado, et al. v.. Roa, Jr., et al., G.R. No. 133324, prom. March 9, 2000)

PRESCRIPTION
15. Give certain instances when actions prescribe. SUGGESTED ANSWER: a. An action for reconveyance of a parcel of land based on implied or constructive trust prescribes in 10 years, the point of reference being the date of registration of the deed or the date of the issuance of the certificate of title of the property. (Villanueva Mijares, et al., v. Court of Appeals, et al., G.R. No. 108921, prom. April 12, 2000 citing Vda. de Cabrera v. Court of Appeals, 267 SCRA 339, 353 (1997), and Sta. Ana, Jr. v. Court of Appeals, 281 SCRA 624, 629) b. A suit for reformation of an instrument may be barred by lapse of time. The prescriptive period for actions based upon a written contract and for reformation of an instrument is ten (10) years under Article 1144 of the Civil Code. Prescription is intended to suppress stale and fraudulent claims arising from transactions where facts had become so obscure from the lapse of time or defective memory. (Rosello-Bentir, et al., v. Hon. Leanda, etc., et al., G.R. No. 128991, prom. April 12, 2000) NOTES AND COMMENTS: a. Two kinds of prescription: 1) Acquisitive prescription or the the acquisition of a right by the lapse of time. 2) Extinctive prescription or the loss of a right of action y the lapse of time. (Cutanda, et al., v. Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000) 16. What is the prescriptive period for the availment of the remedies of accion publiciana or accion reinvendicatoria ? SUGGESTED ANSWER: The remedies of accion publiciana or reinvendicatoria must be availed of within ten (10) years from dispossession. This is so, because under Art. 555(4), of the Civil Code the real right of possessions is lost after the lapse of 10 years. (Cutanda, et al., v. Heirs of Cutanda, et al., G.R. No. 109215, prom. July 11, 2000) 17. Give instances where actions do not prescribe. SUGGESTED ANSWER: a. Where a person is in possession, his action to quiet title does not prescribe. Generally, an action for reconveyance based on an implied or constructive trust, such as the instant case, prescribes in 10 years from date of issuance of decree of registration. However, this rule does not apply when the plaintiff is in actual possession of the land. b. An action for the nullification of a Certificate of Sale could not be instituted as this is tantamount to invalidating a privious declaration of the validity of an auction sale. The Certificate of Sale is just a certification of what was done during th auction sale. (Heirs of Seraspi v. Court of Appeals, et al., G.R. No. 135602, prom. April 28, 2000) NOTES AND COMMENTS: An action for reconveyance of a parcel of land based on implied or constructive trust prescribes in ten (10) years, the point of reference being the date of registration of the deed or the date of the issuance of the certificate of title over the property, but this rule applies only when the plaintiff or the person enforcing the trust is not in possession of the property, since if a person claiming to be the owner thereof is in actual possession of the property, as the defendants are in the instant case, the right to seek reconveyance, which in effect seeks to quiet title to the property, does not prescribe. The reason for this is that one who is in actual possession of a piece of land claiming to be the owner thereof may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right, the reason for the rule being, that his undisturbed possession gives him a continuing right to seek the aid of

14

a court of equity to ascertain and determine the nature of the adverse claim of a third party and its effect on his own title, which right can be claimed only by one who is in possession. The action for recovery of title or possession of real property or an interest therein which can only be brought within ten (10) years after the cause of action has accrued is acquisitive, not extinctive prescription. For extinctive prescription, the applicable law is Article 1141 of the Civil Code which provides that, real actions over immovables prescribe after thirty (30) years, without prejudice to what is established for the acquisition of ownership and other real rights by prescription. (Heirs of Seraspi v. Court of Appeals, et al., G.R. No. 135602, prom. April 28, 2000) Moreover, if the plaintiff in an action for quieting of title is in possession of the property being litigated, such action is imprescriptible. One who is in actual possession of a land, claiming to be the owner thereof may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right because his undisturbed possession gives him a continuing right to seek the aid of the courts to ascertain the nature of the adverse claim and its effects on his title. (Maestrado, etc. et al., v. Court of Appeals, etc. et al., G.R. No. 133345; Maestrado, et al. V.. Roa, Jr., et al., G.R. No. 133324, prom. March 9, 2000)

LAW OF THE CASE

18. What is the law of the case ? SUGGESTED ANSWER: Under the law of the case concept, a. whatever is once irrevocably established as the controlling legal principle or decision b. continues to be the law of the case between the same parties in the same case, c. whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. Such stability and conclusiveness given to final judgments of courts of competent jurisdiction are said to be grounded on reasons of public policy, judicial orderliness and economy as well as protection of the time and interests of the litigants. x x x (Ducat v. Court of Appeals, et al., G.R. No. 119652, prom. January 20, 2000; Ducat v. Sheriff Carpio, A.M. No. P-00-1358, prom. January 20, 2000) NOTES AND COMMENTS: It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) (Italics supplied) As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77) (Italics supplied) Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87) (Italics supplied)

LITIS PENDENTIA
19. What is meant by litis pendentia as a ground for dismissal of actions ? SUGGESTED ANSWER: Litis pendentia is a Latin term which literally means " a pending suit." (Feliciano v. Court of Appeals, et al., G.R. No. 123293, prom. March 5, 1998) It is variously referred to in some decisions as lis pendens and auter action pendant. (Feliciano, supra). While it is normally connected with the control which the court has on a property involved in a suit during the continuance proceedings (Feliciano), it is more interposed as a gound for the dismissal of a civil action pending in court. (Sec. 1, par. [e], Rule 16, ROC). Litis pendentia as a ground for the dismissal of a civil action refers to the situation wherein another action is pending between the same parties for the same cause of action (Sec. 1 [e], Rule 16, ROC), and that the second action becomes unnecessary and vexatious. NOTES AND COMMENTS: ***a. For litis pendentia to be invoked the concurrence of the following requisites are necessary:

15

1) identity of parties or at least represention of the same interest in both actions; 2) identity of rights asserted and reliefs prayed for, the reliefs must be founded on the same facts and the same basis; and 3) identity in the two cases should be such that any judgment that may be rendered the other action will, regardless of which party is successful, amount to res judicata on the other action under consideration. (Feliciano v. Court of Appeals, et al., G.R. No. 123293, prom. March 5, 1998; Tourist Duty Free Shop, Inc. v. Sandiganbayan,et al.,G.R. No. 107395, prom. January 26, 2000; University Physicians Services, Inc. v. Court of Appeals, et al., G.R. No. 115045, prom. January 31, 2000) It has been held that where a litigant sues the same party against whom the same action or actions, for the alleged violation of the same right, and th enforcement of the same relief is/are still pending, the defense of litis pendentia in one case is a bar to the other; and a final judgment in one would constitute res judicata and thus, would cause the dismissal of the rest. (Quinsay v. court of Appeals, et al., G.R. No. 127058, prom. August 31, 2000) b. Do not confuse litis pendentia (Sec. 1 [e], Rule 16, ROC) as a ground for dismissal of actions from res judicata (Sec. 1 [f], Rule 16, ROC) Litis pendentia as a ground for dismissal distinguished from res judicata as a ground for dismissal: In litis pendentia there is no judgment yet as both of the cases are still pending WHILE in res judicata there is already a judgment on the first case. c. Pendency of another case not automatic litis pendentia. Litis pendentia does not exist solely because other action (s) is pending between the same parties. It must be shown that the institution of the later action(s) was unnecessary and intended to harass the defendant. (University Physicians Services, Inc. v. Court of Appeals, et al., G.r. No. 115045, prom. January 31, 2000) 20. The MCTC rendered a Decision granting the ejectmnt suit filed by the plaintiff against the defendants over a parcel of land claiming that the defendants were occupying the land upon his mere tolerance. While an appeal was pending before the RTC, plaintiff filed a motion for immediate execution of the MCTC judgment which was granted. The writ of demolition will be executed over the house owned by the defendants. However, the Court of Appeals later reversed the RTC order granting the execution pending appeal, which was affirmed by the Supreme Court. Meanwhile, the defendants also filed before the RTC a new action for quieting of title involving the same parcel of land but not the house. The defendants also filed before the RTC a new action for quieting of title involving the same property. Should the action for quieting of title justify the suspension of the ejectment suit ? Explain. SUGGESTED ANSWER: Yes, on equitable considerations as an exception to the general rule that a pending civil action invlving ownership of the same property does not justify the suspension of the ejectment proceedings. The ejectment suit is one of unlawful detainer and not of forcible entry. The ejetmnet of the defendants would mean a demolitionof their house, a matter that is likely to create confusion, disturbance, inconveniences and expenses. Necessarily, the affirmance of the MCTC decision would cause the plaintiff to go through the whole gamut of enforcing it by physically removing the defendants from the premises. The plaintiff is claiming ownership only of the land, not of the house. Needlessly, the litigants as well as the courts will be wasting much time and effort by proceeding at a state wherein the outcome is at best temporary, but the result of enforcement is permanent, unjust and propbably irreparable. (Amagan, et al., v. Marayag, et al., G.R. No. 138377, prom. February 28, 2000) NOTES AND COMMENTS: In the above case the Suprem Court considered the prevailing exceptional circumstances. As a general rule, a pending civil action involving ownership fo the same property does not justify the suspension of ejectment proceedings. Unlawful detainer and forcible enry suits under Rule 70 are designed to summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties opposing claimsof juridical possession in appropriate proceedings. These actions are intended to avoid disruption of public order by those who would take the law in their hands purportedly to enforce their

16

claimed right of possession. In these cases, the issue is pure physical or de facto possession, and pronouncemens made on questions of ownership are provision in nature. The underlying reasons why a pending civil action involving ownership of the same property subject of the ejectment proceedings does not result to a suspension of the ejectment proceedings are that the actions in the RTC do not involve physical or de facto possession, and, on not a few occasions, that the case in the RTC was merely a ploy to delay disposition of the ejectment proceeding, or that the issues presnted in the former could quite s easily be set up as defenses in the ejectmnt action and there resolved. . (Amagan, et al., v. Marayag, et al., G.R. No. 138377, prom. February 28, 2000) 21. Philippine Woman's Christian Temperance Union (PWCTU) is the owner of a parcel of land with a deed of restriction annotated on the TCT that reads; "xxx the property shall be used as a site for an institution to be known as the Abiertas House of Friendship, the purpose of which shall be to provide a home for needy and unfortunate women and girls, including children of both sexes and promote and foster all efforts, work activities looking forward their protection from the ravages at all forms of immoralities." PWCTU then filed a petition with the Securities and Exchange Commission (SEC) against Abiertas House of Friendship (AHFI) and Radiance School, Inc. (RSI), for injunction with damages. PWCTU contended that AHFI could not operate a school because it was contrary to its declared purpose, that AHFI's charter does not allow it to enter into a contract with any firm for any purpose except to use the premises as Home for unwed or expectant mothers and their babies, and the contract of lease between AHFI and RSI is ultra vires. While the SEC petition was pending, PWCTU filed a complaint before the Regional Trial Court contending that the contract of lease entered into between AHFI and RSI over certain portions of the above property for use to establish and operate a grade school was entered into without the owner's (PWCTU) consent; that AHFI had no right to lease any portion of the property; and that the lease contract was null and void. It further alleged that the continued operation of the school by RSI violated the restriction on the title, hence AHFI and RSI be ordered to vacate the premises and to pay reasonable compensation for the use of the same, as well as for damages and attorney's fees. AHFI and RSI jointly moved for the dismissal of the complaint filed with the RTC on the grounds that there was another action pending between the same parties for the same cause, and the complaint violated the rule against forum shopping. Rule on the motion. SUGGESTED ANSWER: Motion denied. The requisites of litis pendentia are not met and there was no forum shopping. While it is true that both the SEC petition and the RTC complaint involved the same parties, there is no identity of rights asserted or of reliefs prayed for. The thrust of the RTC complaint was to enjoin the operation of the school in PWCTU's premises. Because of its proprietary interest as owner of the premises PWCTU maintains that it never consented to or approved of the lease arrangement between AHFI and RSI. The SEC petition contends that AHFI had no power to engage in the school business, which it was doing through RSI; and that AHFI's act of operating a school was ultra vires and contrary to its charter. True, both the SEC petition and the RTC complaint delved on the contract of lease. However, in the former, the contract of lease was alleged to have been executed ultra vires; that is beyond the power of AHFI to enter into because it was not empowered to engage in the school business. The focus was on the alleged ultra vires act, not on the contract itself. On the other hand, the validity of the contract of lease was the principal issue in the RTC complaint. The SEC petition was based on its jurisdiction over intra-corporate issues while the RTC complaint centers on the court's jurisdiction over the accion publiciana. A judgment in the SEC case will not amount to res judicata in the RTC litigation and vice-versa. Since as discussed above, the issues are different there is no forum shopping. This is so because forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. (Philippine Woman's Christian Temperance Union, Inc. v. Abiertas House of Friendship, Inc. et al., G.R. No. 125571, prom. July 22, 1998)

RES JUDICATA

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22. What is res judicata as a ground for a motion to dismiss ? SUGGESTED ANSWER: It posits that when a right of fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate. (De Knecht, et al. v. Court of Appeals, et al., G.R. No. 108015 and De Knecht, et al., v. Hon. Sayo, et al., G.R. No. 109234, prom. May 20, 1998) Example of res judicata. Where a party could have objected to the registration of the realty in question but failed to do so, res judicata had set in. Reason: a land registration cause is an actionin rem binding upon the whole world. (Villanueva-Mijares, et al., v. Court of Appeals, et al., G.r. No. 921, prom. April 12, 2000) NOTES AND COMMENTS: a. Aspects of res judicata. The two aspects of res judicata are: First: The effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. Second: The second precludes the relitigation of a particular fact or issue in another action between the same parties or their successors-in-interest, on a different claim or cause of action. (Sps. Barretto v. Court of Appeals, et al., G.R. No. 110259, prom. February 3,000) b. Requisites of res judicata as a ground for a motion to dismiss: 1) The judgment sought to bar the new action must be final; 2) The decision must have been rendered by a court having jurisdiction over the subject matter and the parties; 3) The disposition of the case must be a judgment or on the merits. 4) There must be between the first and second action, the three identities: a) Identity of parties, b) Identity of subject matter, and c) Identity of causes of action. (Republic, etc. v. Court of Appeals, et al., G.R. No. 103412, prom. February 3, 2000) c. Judgment on the merits. A judgment which determines the rights and liabilities of the parties based on he ultimate facts as disclosed by the pleadings or issues presented for trial. It is not necessary that there should haveen a trial, actual hearing or arguments on the facts of the case. For as long as the parties had full legal opportunity to be heard on their respective claims and contentions, the judgment is on the merits. (Republic, etc., v. Court of Appeals, et al., G.R. No. 103412, prom. February 3, 2000) d. Substantial identity of parties only required. For purposes of res judicata, onl subsantial identity is required and not absolute identity. Parties in both cases ned not be physically identical provided hat there is privity between the parties or their successors-ininterest subsequent to the commencment of the previous cause of action, litigating for the same thing, title, or capacity. (Republic, etc. v. Court of Appeals, et al., G.r. No. 103412, prom. February 3, 2000) e. Res judicata is not defeated by a minor difference of parties, as it does not require absolute but only subsantial identity of parpties. But there is substantial identity only when the additional party acts in the same capacity or is in privity with the parties in the former action. Co-owners are not parties inter se in relation to the property owned in comon. A subsequent action by a co-heir, who did not join the earlier dismissed action for recovery of property, should not be barred by prior judgment. Neiher will conclusiveness of judgmnt apply because there was no identity of parties. (Nery, et al., v. Leyson, t al., G.R No. 139306, prom. August 29, 2000) f. No res judicata upon parties who did not sign the compromise agreement because there is no identity of parties. A judgmnt upon a compromise has all the force and effect of any other judgment, hence conclusive only upon parties thereto and their privies. (Golden Donuts, Inc., et al., v. NLRC, et al, G.R. Nos. 113666-68, prom. January 19, 2000) g. No res judicata where causes of action are different. The causes of action are different between an unlawful detainer case and another case which concenrns the validity of the execution proceedings, specifically the validity of the auction sale of properties to satisfy the money judgmntin the ejectmnt case. The two cases fail the test of identity of causes of action, i.e. whether the same facts or evidence would support and establish the causes of action in each case. (Vda. de Salanga, et al., v. Hon. Alagar, etc, et al., G.R. No. 134089, prom. July 14, 2000)

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***23. Spouses de la Cruz ownd a residential lot which was leased to Dominga where she built a two-story house where her family lived. The lessess religiously paid her monthly lease ental undtil June 1979 when the lessor stopped collecting the same. In June 1979 Theresa informed Dominga that she purchased the lot from the previous owners. She wanted to take immediate possession of the propertysince she had no other residential lot and she intended to make use of the lot for the construction of her own house. Theresa gave Dominga three (3) months notice to vacate and to demolish the improvements which the latter had built on the lot. As a result of Domingas failure to vacate, Theresa filed an ejectment case based on her alleged need for the property. The court dismissed the case and held that the defendant has not been in arrears in the payment of the monthly rentals and noted that the plaintiff never tried to collect. That decision had long become final and executory. In 1982, Theresa filed a second ejectment case, this time against Almario who succeeded his mother Dominga. The case was again dismissed as the rentals up to and including February 1982 had been paid in full. The decision had also become final and executory. In 1989, Mariano, the new owner of the property filed another ejectment case against Almario insisting the same premises subject of the first two ejectment cases. Almario again prevailed. In 1992, Mariano filed the fourth ejectment suit alleging that he is lwasing the property to Almario, that the lessee has violated the terms of the lease agreement by not paying rentals since December, 1987 which has accunulated to P17,564.45. That he has made several demands upon Almario to pay his arrears and to vacate the premises the latest of which is through a January 16, 1992 letter. Almario is now raising the doctrine of res judicata contending that this latest ejectment suit is barred by the final and executory decisions in previous cases. Rule on Almarios defense. SUGGESTED ANSWER: There is no res judicata because of the lack of identity of causes of action between the latest and previous cases. The first ejectment case had for a cause of action based on the need for the premises. The second ejectment case involved a different cause of action, that is, for non-payment of rentals up to February 1982. The third case had for cause of action the need for the premises and nonpayment of rentals from Novembefr 1987 up to May 1988. In the latest ejectment suit the cause of action is the non-payment of rentals from December 1987 accumulating to P17,064.65. Clearly, the cause of action and the circumstances present in the instant case are not the same but differ markedly from those in previous suits cited. Reliance on the doctrine of res judicata is misplaced. (Siapian v. Court of Appeals, et al., G.R. No. 11928, prom. March 1, 2000) 24. Bachrach Corporation entered into two lease contracts with the Philippine Government, then under the control and management of the Director of Lands, for a term of 99 years, the first lease to expire 19 June 2017 and the other on 14 February 2018. During the Aquino administration, the management and control of the entire Port Area was transferred to the Philippine Ports Authority (PPA), which forthwith issued a memorandum increasing the rental rates of Bachrach by 1,500%. As a result of Bachrach's refusal to pay, PPA instituted and ejectment suit which resulted to a decision in its favor. An appeal to the RTC proved unavailing for Bachrach as well as a subsequent petition for review filed with the Court of Appeals. Bachrach then sought for a reconsideration of the Court of Appeals' decision. During the pendency of the motion for reconsideration Bachrach filed a complaint with the Manila RTC for refusing to honor a compromise agreement said to have been perfected between Bachrach and PPA that superseded the ejectment case. Bachrach prayed for specific performance. PPA sought the dismissal of the specific performance case on the ground of pendency of another action between the same parties for the same cause. Decide. SUGGESTED ANSWER: PPA's motion should be denied. There is no identity of subject matter and causes of action between the unlawful detainer case and the specific performance case.

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In the unlawful detainer case, the subject matter is the contract of lease between the parties while the breach thereof, arising from Bachrach's non-payment of rentals, constitutes the suit's cause of action. In the specific performance case, the subject matter is the compromise agreement allegedly perfected between the same parties while he case of action emanates from the averred refusal of PPA to comply therewith. (Bachrach Corporation v. Court of Appeals, et al., G.R. No. 128349, prom. September 25, 1998) ***25. What are the concepts of res judicata ? SUGGESTED ANSWER: a. Bar by former judgment; b. Conclusiveness of judgment. (Roxas v. Galindo, 108 Phil. 587) NOTES AND COMMENTS: ***a. The concept of bar by former judgment: Assuming that the court which rendered the judgment has jurisdiction, said judgment is, 1) with respect to the matter directly adjudged, 2) or as to any other matter that could have been raised in relation thereto, 3) conclusive between the parties and their successors in interest by title a) subsequent to the commencement of the action or special proceeding, b) litigating for the same thing and under the same title and in the same capacity. (Sec. 47 [b], Rule 39, ROC arrangement and numbering supplied) There is "bar by prior judgment" when, between the first case where the judgment was rendered, and the second case which is sought to be barred, there is identity of parties, subject matter and cause of action. The judgment in the first case constitutes an absolute bar to the subsequent action. It is final as to the claim or demand in controversy, including the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but to any other admissible matter which might have been offered for that purpose and of all matters that could have been adjudged in that case. (Zansibarian Residents Association v. Municipality of Makati, 135 SCRA 240) b. Example of bar by former judgment: A judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed of which no proof was offered, such as forgery, want of consideration or payment. If such defenses were not presented in the action and established by competent evidence, the subsequent allegation of their existence is of no legal consequence, The judgment is conclusive, so far as future proceedings a law are concerned, as though the defenses never existed. (Penalosa v. Tuason, 22 Phil. 303) ***c. Concept of conclusiveness of judgment: That only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto are conclusive between the parties. (Sec. 47 [c], Rule 47, ROC) The rule of conclusiveness of judgment precludes the relitigation of a particular fact or issue in another action between the same parties based on a different claim or cause of action. The judgment in the prior action operates as estoppel only as to those matters in issue or points controverted, upon the dtermination of which the finding of judgment was rendered. The previopus judgment is conclusive in the second cased only as to those matters actually and directly controverted and determined and not as to matters merely involved therein. (Rizal Surety & Insurance Company v. CA, et al., G.R. No. 112360, prom. July 18, 2000) d. Examples of conclusiveness of judgment: In an action to recover several installments due and unpaid on a promissory note without an acceleration clause, the judgment declaring the promissory note to be genuine is conclusive between the parties or their successorsin-interest in a subsequent action to recover succeeding installments due and unpaid. (Penalosa v. Tuazon, 22 Phil. 303) ***The negligence of the shipping line which issue had already been passed upon in a case filed by one of the insurers, is conclusive and can no longer be relitigated in a similar case filed by another insurer against the same shipping line on the basis of the same factual circumstances. (Rizal Surety & Insurance Company v. CA, et al., G.R. No. 112360, prom. July 18, 2000 citing Smith Bell and Company (Phils.), Inc. v. Court of Appeals, 197 SCRA 201))

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***e. Bar by former judgment distinguished from conclusiveness of judgment: 1) There is bar by former judgment if all the identities (parties, subject matter and cause of action) are present WHILE in conclusiveness of judgment there is no identity of causes of action between the two cases, all other requisites being present. 2) As to effect, in bar by former judgment, the first judgment constitutes an absolute bar to all matters directly adjudged as well as matters that may have been adjudged WHILE in conclusiveness of judgment, the first judgment is conclusive only on matters actually litigated and adjudged in the first action. (Penalosa v. Tuazon, 22 Phil. 303) ***26. Distinguish from each other: res judicata, law of the case and stare decisis. SUGGESTED ANSWER: Res judicata simply means finality of judgments, or that issues decided ion a case, once a decision has become final and executory cannot be litigated again by the same parties in a subsequent action involving the same subject matter (Penalosa v.Tuazon, 22 Phil. 303); WHILE Law of the case means that legal conclusions announced on a first appeal, whether on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and conformity thereto, but they become and remain the law of the case in all stages, whether in the lower court or in the appellate court on a subsequent appeal (Zarate v. Director of Lands, 39 Phil. 747) while Stare decisis means the doctrine that when the court has once laid down a principle of law as applicable to a certain state of facts, it will adhere in principle and apply it to all future cases where the facts are substantially the same. (Government v. Jalandoni, 49 O.G. 1840)

FORUM SHOPPING
***27. What is forum shopping ? SUGGESTED ANSWER: When, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when a party repetitively avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some other court. (Sps. Diu v. Ibajau, et al., G.R. No. 132657, prom. January 19, 2000) Forum shopping exists when the elements of litis pendentis are present pr where a final judgment in one case will amount to res judicata in another. (Ayala Land, Inc. v. Valismo, G.R. No. 135899 prom. February 2, 2000) NOTES AND COMMENTS: a. Forum shopping. There is forum-shopping whenever, as a result of an adverse opinion in one forum or it may be added, in anticipation thereof, a party seeks a favorable opinion in another forum through means other than by appeal or certiorari, (Ligon v. Court of Appeals, et al., G.R. No. 127683, prom. August 7, 1998) raising identical causes of action, subject matter, and issues. (Ligon, supra). Forum-shopping exists when two or more actions involve the same transactions, essential facts, and circumstances; and raise identical causes of action, subject matter, and issues. (Ligon, supra) b. Nature of forum shopping: Forum shopping is a practice which derogates and ridicules the judicial process, plays havoc with the rules or orderly procedure, and is vexatious and unfair to the other parties of the case. It is both contumacious and an act of malpractice' it is "proscribed and condemned as trifling with the courts and abusive of their processes, prosecution for contempt and ground for summary dismissal of the actions involved, without prejudice to appropriate administrative action against the counsel." (Gatmaytan v. Court of Appeals, et al., G.R. No. 123332, prom. February 3, 1997) ***c. Test for determining whether there is prohibited forum shopping: Where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata on the other. Where there exists between the two cases: 1) identity of parties, or at least such parties as represent the same interests in both actions, as well as

21

2) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and the 3) indentity on the two preceding particulars is such that any judgment rendered in the other action, will regardless of which party is successful amount to res adjudicata in the action under consideration: all the requisites, in fine, of auter action pendant. (First Philippine International Bank, etc., v. Court of Appeals, et al., G.R. No. 115849, prom. January 24, 1996) d. Examples where there is forum shopping: 1) There would be forum shopping if all of the respondents acting as one group, filed identical special civil actions in the Court of Appeals and in the Supreme Court. There must be identity of parties, of interests represented, rights asserted and relief sought in different tribunals. (Ruby Industrial Corporation, et al., v. Court of Appeals, et al., G.R. No. 124185-87, prom. January 20, 1998) 2) A lawyer filed nine judicial remedies in different courts, attacking the jurisdiction of the metropolitan trial court in one case. (Gatmaytan v. Court of Appeals, et al., G.R. No. 123332, prom. February 3, 1997) e. Examples of no forum shopping: 1) Where two groups of respondents appear to have acted independently of each other when they sought relief from the appellate court, there is no forum shopping. however, the adverse party can always ask for the consolidation of the two cases. (Ruby Industrial Corporation, et al., v. Court of Appeals, et al., G.R. No. 124185-87, prom. January 20, 1998) 2) Where the reliefs sought in the opposition in the Court of Appeals and the petition before the Supreme Court are not identical. (Eternal Gardens Memorial Park Corporation v. Court of Appeals, et al., G.R. No. 124554, prom. December 9, 1997) 3) Where a litigant sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending the defense of litis-pendentia in one case is a bar to the other side; and, a final judgment in one would constitute res judicata; and thus would cause the dismissal of the rest. (Ibid., citing First Phil. International Bank v. Court of Appeals) 4) Forum-shopping concurs not only when a final judgment in one case will amount to res judicata in another, but also where the elements of litis pendentia are present. The fiing of multiple suits involving the same parties for the sam cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment amounts to forum-shopping. 5) Only when the successive filing of suits as part of an appeal, or a special civil action, will there be no forum-shopping because the party no longer availed of different for a but, rather sought a review of a lower tribunals decision or order. The termination of the case before a lower court and its elevation for review to a higher court does not constitute forum-shopping for the latter is a recognized emedy under our procedural rules. (Quinsay v. Court of Appeals, et al., G.R. No. 127058, prom. August 31, 2000) 28. On September 6, 1995, Hubert Webb filed a petition for contempt in Criminal Case No. 95-404 against Jessica Alfaro and Viva Productions, Inc., complaining that their acts concerning the promotion, advertising and marketing of "The Jessica Alfaro Story," in the print and broadcast media and, even on billboards as well as the scheduling of the premiere of the movie on September 11, 1995 and its regular public exhibition starting September 13, 1995 constitutes contempt within the contemplation of Section 3, Rule 71 of the Rules of Court. On September 8, 1995 after a full hearing, the court issued an order restraining the premiere and showing of the movie. On the same day, Hubert instituted a case for Injunction with Damages before the Regional Trial Court of Makati, which issued ex-parte an order enjoining Viva and Alfaro from further proceeding, engaging, using or implementing the promotional, advertising and marketing programs for the same movie and from showing or causing it to be shown or exhibited in all theaters in the entire country until after the final termination and logical conclusion of the trial in the criminal action pending before the Paranaque RTC. Was there forum-shopping ?

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SUGGESTED ANSWER: Yes. While there is no identity of causes of action, Webb sought exactly identical reliefs when a prayer for the injunctive writ was likewise prayed for in the Makati Court. (Viva Productions, Inc. v. Court of Appeals, et al., 269 SCRA 664) 29. "G" filed an action against "W" for quieting of title. During the pendency of the action, "G" filed another suit also against "W" to eject him from the property subject of the action for quieting of title. Is there forum-shopping ? SUGGESTED ANSWER: No. For forum shopping to exist, both actions must involve the same transactions, essential facts and circumstances and the actions must raise identical causes of action, subject matter, and issues. An action for quieting refers to ownership while the action for ejectment concerns possession. Surely there are different causes of action (Gachon, et al., v. Devera, Jr., etc., et al., G.R. No. 116695, prom. June 20, 1997)

AR E THE RE RE MEDIE S ?

AVAILA BLE

ADE QU ATE

RELIEF S AND

The purpose of remedial law is to enforce or protect a right or to prevent or redress a wrong. Consequently, there must be available to the suitor adequate reliefs and remedies in order for him to attain the purpose of his suit. This, the lawyer is obliged to determine even prior to filing of the suit, otherwise a pyrrhic victory would result. It is also at this stage where the lawyer determines the need for provisional remedies.

WH O A RE TH E PARTIE S ?
30. Who are parties in an action ? SUGGESTED ANSWER: Parties when used in connection with the subject matter of an action, is understood to include all those a. who are directly interested in the subject matter, and b. who, therefore, have a right 1) to make a defense, 2) control the proceedings, 3) examine and cross-examine the witnesses, or 4) appeal from the judgment. Persons not having these rights are regarded as strangers to the action. (47 C.J. 14-15, numbering and arrangement supplied) 31. Who may be parties to a suit ? SUGGESTED ANSWER: a. Only 1) natural or 2) juridical persons or 3) entities authorized by law b. may be parties in a civil action. (1st sentence, Sec. 1, Rule 3, ROC arrangement and numbering supplied) CRITERIA FOR INVOKING JUDICIAL PROCESS. A party may consider himself aggrieved by another but the court may not recognize him as capable of pursuing his claim if he does not meet certain requirements. For a person to invoke judicial assistance he must have legal capacity, likewise a real party in interest with locus standi. For example, one who has no right or interest to a property cannot invoke the jurisdiction of the court as party-plaintiff in the action for it is ordained that easy action must be prosecuted or defended in the name of the real party in interest. (Barlagan, et al., v. Madrideo, et al., G.R. No. 120267, prom. January 25, 2000) If the criteria for invoking judicial process is not met then, the complaint filed by such incapacitated plaintiff may be subject to a motion to dismiss on the ground That the plaintiff has no legal capacity to sue. (Sec. 1 [d], Rule 16, ROC).

23

On the other hand if the ground is not raised in a motion to dismiss it may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (1st par., Sec. 6, Rule 16, ROC) 32. "A" husband of "B," instituted an action for ejectment in the Regional Trial Court of the National Capital Judicial Region in his name against "C" to recover the ownership and possession of a parcel of land which was the paraphernal property of "B." "C" filed a motion asking that "B" be made a party in the action. The court denied "C's" motion and proceeded with the trial of the case. Is the court's ruling sustainable ? State the reasons for your answer. SUGGESTED ANSWER: No. Spouses shall sue and be sued jointly except only in the cases provided by law. There is no showing in the problem that there is a judicial separation of property, or that there was a separation of property agreed upon in the marriage settlements or that the husband has been appointed by a court as the administrator of the wife's property. ***33. What is the purpose why suits must be brought in the name of the real party in interest ? SUGGESTED ANSWER: In order to end litigations. If the suit is not brought in the name of the real party in interest, no controversy would be resolved because another suit could always be instituted for or against the "true" real party in interest. As the latin maxim goes, interest rei publicae ut finis sit litium. The interest of the State demands end to litigation. NOTES AND COMMENTS: ***a. Legal interest, concept of. The Court will only exercise its power of judicial review if the case is brought before it by a party who has the legal standing to raise the legal question. Legal standing denotes a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act that is being challenged. The term interest means material interest as distinguished from a mere incidental interest. In the present case, aside from the fact that petitioners were not parties in the proceedings before the lower court, they have not cited any acceptable or valid basis to support their legal standing to question the probate courts order. Since respondent estate is the undisputed owner of the subject private lots, the right of the administrator to have the same fenced cannot be questioned by petitioners who do not have any vested right over the subject lots. The fact that petitioners are neighboring lot owners whose access to public roads will allegedly be affected by the fencing of the subject lots, merely gives them an incidental interest over the questioned order of the probate court and cannot serve as basis to support their legal standing to elevate the order of the probate court to the Court of appeals and before this Court. In this regard, it is worth mentioning that the only person who can rightfully oppose the issuance of the fencing permit is the City Engineer of Caloocan. (Tang, et al., v. Court of Appeals, et al., G.R. No. 117204, prom. February 11, 2000) b. Legal interest and interest, defined. The term interest is material interest, an interest in issue to be affected by the decree as distinguished from mere interest in the question involved, or a mere incidental interest. Moreover, the interest of the party must be personal and not one based on a desire to vindicate the constitutional right of some third or unrelated party. (Spouses Tankiko, et al., v. Cezar, et al., G.R. No. 131277, prom. February 2, 1999) 34. HIB Tenants Association, composed of about a hundred heads of families who are tenants in good standing of a 14-story building brings a suit contesting the conditional sale of such building without notice to the tenants or prior clearance from the proper government office. Does the HIB Tenants Association have the personality to sue on its own, as a corporation representing its members who are tenants of the building ? SUGGESTED ANSWER: No, it is not a real party in interest. It has no real, actual, material or substantial interest in the subject matter of the action. The benefits are not really meant for the Association, but for the members of the Association. Thus, a person who is not a party to a contract and for whose benefit it was not expressly made cannot maintain an action on it, even if the contract, if performed by the parties to it, would incidentally inure to his benefit.

24

It is the individual members who have personal and individual rights as tenants therefore they are the real parties in interest. (House International Building Tenants Association, Inc. v. Intermediate Appellate Court, et al., 151 SCRA 703) ***35. Spouses Tondas acting both in their capacity as officers of Honey Tree Apparel Corporation (HTAC) and in their personal capacities, applied for and wer granted commercial letters of credit by METROBANK, in connection with the importoation of raw textile materials to he used in the manufacturing of garments. The imported fabrics were withdrawn by HTAC under 11 trust receipts executed by the Tondas. Despite repeated demands, the Tondas failed to account to METROBANK the goods and/or proceeds of sale of the merchandize, subject of the trust receipts. METROBANK filed with the Provincial Prosecutor a complaint/affidavit charging the Tondas with violation of P.D. No. 115 (Trust Receipts), in relation to Article 315 (1) (b), of the Revised Penal Code which was dismissed by the Prosecutor. METROBANK appealed to the Secretary of Justice which ordered the filing of the appropriate information. The Tondas sought a reconsideration of the order which was denied. They filed with the Court of Appeals a petition for certiorari and prohibition which the Court granted ordering the dismissal of the criminal complaint. Is METROBANK clothed with personality to elevate the matter to the Supreme Court or should the Office of the Solicitor General institute the suit ? Explain briefly. SUGGESTED ANSWER: Yes, METROBANK has pesonality to elevate the decision of the Court of Appeals to the Supreme Court. The general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or Republic of the Philippines once the case is broguht before the Supreme Court or the Court of Appeals. However, an exception has been made that if there appears to be grave error committed by the judge or lack of due process, the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor General. (Metropolitan Bank and Trust Company v. Tonda, et al., G.R. No. 134436, prom. August 16, 2000) 36. Cezar, et al., are the actual occupants and residents of Lot No. 3714 of the Cadastral survey of Cagayan situated in Barrui Lapasan, Cagayan de Oro City and are the miscellaneous sales patent applicants of specific portions of the parcel of land. It appearts that Lot No. 3714 was declarado terreno publico as of December 14, 1940, and subsequently adjudicated to and ordered registered in the name of Salcedo but OCT No. 0740 was actually issued only in 1977. It is now the contention of Cezar, et al., that the property covered by Lot No. 3714, the same as that covered by OCT No. 0-740 is public land because Salcedo succeeded in registering in his name land previously declared as public land as early as December 19, 1940. Consequently, OCT 0-740 should be cancelled and reconveyed to Cezar, et al., the applicants for sales patent. Would the suit for cancellation and reconveyance prosper ? SUGGESTED ANSWER: No, because it was not brought in the name of the real party in interest. Only the State can file a suit for reconveyance of a public land. Therefore, not being the owners of the land but mere applicants for sales patents thereon, Cezar, et al,,have no personality to file the suit. Neither will they be directly affected by the judgment in such suit. (Spouses Tankiko, et al., v. Cezar, et al., G.R. No. 131277, prom. February 2, 1999) NOTES AND COMMENTS: Unless authorized by law or the Rules of Court, every action must be prosecuted or defended in the name of the real party in interest. (last sentence, Sec. 2, Rule 3, ROC). A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (1st sentence, Ibid.) 37. William Uy and Rodel Roxas, as agents of the owners of eight parcels of land entered into a series of sale for these lands with the National Housing Authority (NHA) for development as a housing project. However, a report by the DENR showed that three of the parcels are not suitable for a housing project so NHA cancelled the sale for these lots. William and Rodel then filed suit against NHA dor damages as a result of the cancellation of the sale of the three lots. Will the case prosper ?

25

NOTES AND COMMENTS: No, because William and Rodel are not real parties in interest. The Rules provided that an action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced. William and Rodel are not parties to the contract of sale. Even if they are entitled to commissions resulting from the sale, their recourse should be to the owners and not to NHA. There is no contractual relation between William and Rodel one hand and NHA on the other. (Uy, et al., v. Court of Appeals, et al., G.R. No. 120465, prom. September 9, 1999) NOTES AND COMMENTS: a. General rule. Contracts take effect only between the parties, hence agents may not sue upon a contract. Exceptions: Agents may sue upon a contract without joining the principal, if they are assigns and heirs of their principals eccept where the rights and obligations arising from the contract are transmissible by their nature, or by stipulation, or by provision of law. (Uy, et al., v. Court of Appeals, et al., G.R. No. 120465, prom. September 9, 1999) ***IMPT: Do not forget that an agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal, except when the contract involves things belonging to the principal. (Sec. 3, Rule 3, ROC) 38. The mayor of Santiago City, the president of the Liga ng mga Barangay ng Santiago City and residents of Santiago City assailed the constitutionality of R.A. No. 8528, which downgraded the status of the city from an independent component city into a mere component city. Do the suitors have locus standi to sue ? SUGGESTED ANSWER: Yes, it is now an ancient rule that the constitutionality of a law can be challenged by one who will sustain a direct injury as a result of its enforcement. (Miranda, et al., v. Aguirre, etc., et al., G.R. No. 133064, prom. September 16, 1999) NOTES AND COMMENTS: ***a. When taxpayers have locus standi to impugn the validity of a law. A citizen acquires standing only if he can establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. A taxpayer is deemd to have the standing to raise a constitutional issue when it is established that public funds have been disbursed in allegd contravention of the law or the constitution. Thus, a taxpayers actiuon is properly brought only when there is an exercise by congress of its taxing and spending power. (Gonzales v. Hon. Narvasa, etc., et al., G.R. No. 140835, prom. August 14, 2000) Taxpayers have locus standi to question the validity of tax measures or illegal expenditures of public money. REASON: They are parties in interest to be prejudiced or benefited by the avails of the suit, but not if executive acts do not involve the use of public funds. (Gonzales v. Marcos, 65 SCRA 624) b. Public officials have locus standi because it is their sworn duty to protect public interest. (Maceda v. Macaraig, 197 SCRA 771) ***c. Objections to taxpayer's suits for lack of sufficient personality is a procedural technicality which the Supreme Court could brush aside, where the issues are of such transcendental importance in keeping with the Court's duty, under the 1987 Constitution and the laws, to determine whether public officers have abused the discretion given to them. (Kilosbayan, Inc. v. Guingona, Jr., 232 SCRA 110) ***39. Gonzales, filing suit as a citizen and taxpayer, questioned the validity of Executive Order No. 43, creating the Preparatory commission on Constitutional Reforms (PCCR) in order, to study and recommend proposed amendments and/or revisions to the 1987 Constitution, and the manner of implementing the same. Gonzales claims, that the President encroached upon the legislatures powers to create a public office and to propose amendments to the charter by forming the PCCR. Under section 7 of E.O. No. 43, the amount of P3 million was appropriated for the operational expenses of the Commission to be sourced from funds of the Office of the President, subject to the usual accounting and auditing rules and regulations. Is Gonzales clothed with locus standi as a taxpayer to question the validity of E.O. No. 43 ?

26

SUGGESTED ANSWER: No. Gonzales has not shown that he has sustained or is in danger of sustaining any personal injury attributable to the creation of the PCCR. If at all, it is only Congress, not Gonzales, which can claim injury since its powers are alleged to have been encroached upon by the President. Gonzales has sustained no direct, or even any indirect injury. Neither does he claim that his rights or privileges have been or are in danger of being violated, nor that he shall be subjected to any penalties or burdens as a result of the PCCRs activities. A taxpayers action is properly brought only when there is an exercise by Congress of its taxing or spending power. There is no such exercise in the instant case because the funds were taken from funds intended for the Office of the Presidnt, in the exercise of the Chief Executives power to transfer funds pursuant to Section 25 (5) of Article VI of the Constitution. (Gonzales v. Hon. Narvasa, etc., et al., G.r. No. 140835, prom. August 14, 2000) NOTES AND COMMENTS: There is no appropriation by Congress so to speak. Appropriation in its strict sense, is the legislative authorization prescribed by the Constitution that money may be paid out of the Treasury, while appropriation made by law refers to the act of the legislature setting apart or assigning to a particular use a certain sumn to be used in paymnt of debt or dues from the State to its creditors. (Ibid.) ***40. Who is an indispensable party ? SUGGESTED ANSWER: An indispensable party is a party in interest without whom no final determination can be had of an action. (Sec. 7, Rule 3, ROC) They must always be joined either as plaintiffs or defendants. (Ibid.) NOTES AND COMMENTS: A party is not an indispensable party if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. (Servicewide Specialists, Inc., v. Court of Appeals, 251 SCRA 70) 41. The spouses Ramon and Rosario died intestate in 1943 and 1944, survived by their heirs, Carmen, Josefa, Angel, Amparo married to Hernando, Concepcion and salvador. Subsequently, the estate was divided equally distributing Lot No. 3046 to Concepcion, Angel, Amparo married to Hernando and Ramon, the sole heir of Salvador who likewise died; while lot nos. 5925, 5934, 1327 and 5872 were distributed equally between Josefa and Carmen. Lot No. 5872 was not included in the inventory of properties submitted to the Court, the project of partition submitted to and approved by the Court. The decedent Ramon acquired the property and delivered it to the spouses Amparo and hernando. It was subsequently delivered to Josefa and Carmen during the actual partition in 1956, and they have been in possession since then. Angel, Concepcion and Ramon (the sole heir of Salvador) and the heirs of Amparo married to Hernando, signed notarized quitclaims over Lot 5872 in favor of Josefa and Carmen. Subsequently, the heirs of Salvador, Amparo and Concepcion laid claim to their alleged shares in Lot 5872 claiming that the same is a common property of the children of Ramon and Rosario because it was not included in the project of partition because Lot No. 5872 was still in the name of the deceased Ramon and Rosario. Josefa and Carmen then filed an action for quieting of title. It is now contended that Josefa and Carmen are not the proper parties to bring an action for quieting of title, since the Certificate of Title to Lot 5872 is not in their names. Is this contention tenable? SUGGESTED ANSWER: No. Persons having legal as well as equitable title to or interest in a real property may bring action to quiet title and title here does not necessarily denote a certiticate of title issued in favor of the person filing the suit. (Maestrado etc., et al., v. Court of Appeals, etc. et al., G.R. No. 133345; maestrado, et al., v. Roa, Jr., G.R. No. 133324, prom. March 9, 2000) An action to quiet title is a common land remedy for the removal of any cloud or doubt or uncertainty on the title to real property. It is essential for the plaintiff or complainant to have a legal or an equitable title to or interest in the real property which is the subject matter of the action. Also, the deed, claim or encumbrance or proceeding that is being alleged is a cloud on plaintiffs title must be shown to be in fact involved or in operative despite its prima facie appearance of validity or lead efficacy. (Robbs, et al., v. Court of Appeals, et al., G.R. No. 123509, prom. March 14, 2000) 42. Who is a necessary party ?.

27

SUGGESTED ANSWER: A necessary Party is One who is not indispensable but who ought to be joined as a party if complete relief is to be accorded to those already parties, for a complete determination or settlement of the claim subject of the action. (Sec. 8, Rule 3, ROC) 43. Give examples of a necessary party. SUGGESTED ANSWER: Some examples of necessary parties are: a. A solidary debtor is not an indispensable party but merely a necessary party. The creditor can proceed separately against any of the solidary debtors, who then can proceed against his co-debtors for reimbursement if complete relief is to be obtained. b. In an action to recover possession of a parcel of land, the possessor (tenant, etc.), is the indispensable party while the owner is merely the necessary party. c. In an action for the recovery of the ownership of a parcel of land, the owner is the indispensable party and the possessor (the tenant) is merely the necessary party. 44. Distinguish a necessary party from an indispensable party SUGGESTED ANSWER: The following are the distinctions between indispensable parties and necessary parties: a. The interest of indispensable parties is such that no final determination of the action can be had without them WHILE the interest of necessary parties is such that complete relief may not be had without them. b. Non-joinder of an indispensable party may subject the suit to dismissal WHILE such is not the case with non-joinder of a necessary party. 45. How is a necessary party distinguished from a proper party ? SUGGESTED ANSWER: A necessary party party is distinguished from a proper party in the following manner: a. A necessary party has an interest so joined with the parties before the court that his joinder is required if complete is to be accorded the parties WHILE the interest of a proper property is separable and even without his joinder complete relief can be had between the parties in court; b. Necessary parties may at the discretion of the court be summoned to appear so complete relief may be accorded the parties WHILE proper parties need not be summoned to accord complete relief to parties. NOTES AND COMMENTS: Under the 1997 Rules of Civil Procedure, there seems to be no distinction between a proper party and a necessary party. This is so, because no mention at all of a proper party was made in the new rules. It is interesting to note that Sec. 8, Rule 3 of the 1940 Rules of Court had exactly the same wording as Sec. 8, Rule 3 of the 1964 Rules of Court. The only difference between the two was the use of the sub-title, "Joinder of necessary parties," in the 1940 Rules which was changed to "Joinder of proper party," in the 1964 Rules. The 1997 Rules changed the sub-title to, "Necessary Party." 46. Aguila filed a petition for exemption from the coverage of the land reform program. The alleged tenants opposed the petition. The DAR Regional Director granted the application but on appeal the DAR reversed its ruling and denied the exemption. Aguila appealed to the Office of the President which reinstated the grant of the application. The tenants appealed to the Court of Appeals, but the petition was dismissed for failure to implead the Office of the President which is an indispensable party to the case as it is from where the questioned decision and resolution was issued. Was the dismissal proper ? Explain briefly. SUGGESTED ANSWER: No. The issue in the petition before the Court of Appeals is whether a private land should be exempted from the coverage of the land reform program. Whatever happens to that case and whoever wins would not bring any prejudice or gain to the government. The only participation of the Office of the President in this case is its role as the office which entertains appeals from decisions of the DAR. It is clear that the Office of the President is merely a pro forma party, in the same way that a respondent court is a pro forma party in special civil actions for certiorari. (Samaniego, et al., v. Aguila, et al., G.R. No. 125567, prom. June 27, 2000)

28

NOTES AND COMMENTS: Under Sec. 7, Rule 3 of the Rules of Civil Procedure, an indispensable party is a party in interest without whom no final determination can be had of an action without that party being impleaded. Indispensable parties are those with such an interest in the controversy that a final decree would necessarily affect their rights, so that the court cannot proceed without their prescence. Interest, within the meaning of this rule, should be material, directly in issue and to be affected by the decree, as distinguished from a mere incidental interest in the question involved. On the other hand, a nominal or pro forma party is one who is joined as a plaintiff or defendant, not because such party has any real interest in the subject matter or because any relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record. ***47. What are the requisites for permissive joinder of parties ? SUGGESTED ANSWER: a. All persons in whom or against any right to relief b. in respect to or arising out of the same transaction or series of transactions is alleged to exist, 1) whether jointly, severally, or in the alternative, c. may except as otherwise provided in these Rules of Court d. join as plaintiffs or be joined as defendants in one complaint, e. where any question of law or fact common to all such plaintiffs or to all such defendants may arise in he action; f. but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceeding in which he may have no interest. (Sec. 6, Rule 3, ROC arrangement, numbering and words without emphasized supplied) NOTES AND COMMENTS: The Rules do not specify whether the party to be joined is a necessary party. However, the author believes that the parties referred to are necessary parties because complete relief would result if these parties who became such as a result of the same or series of transactions or because of the same question of law or fact. ***48. What is the jurisdictional limitation on permissive joinder of parties ? SUGGESTED ANSWER: With respect to the jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases, B.P. Blg. 129 provides that where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions (par. 1, Sec. 33, B.P. Blg. 129) This is also known as the totality rule. NOTES AND COMMENTS: It is apparent that the totality rule is a limitation on permissive joinder of parties because it does not allow the joinder of parties if the totality of the claims exceeds the jurisdictional amount of the Metropolitan Trial Court, the Municipal Trial Court and the Municipal Circuit Trial Court ***49. What is the rule with respect to non-joinder of necessary parties ? SUGGESTED ANSWER: a. Whenever in any pleading in which a claim is asserted b. a necessary party is not joined, c. the pleader shall 1) set forth his name, if known, and shall state 2) why he is omitted. d. Should the court find the reason for the omission unmeritorious, it 1) may order the inclusion of the omitted necessary party 2) if jurisdiction over his person may be obtained. (1st par., Sec. 9, Rule 3, ROC arrangement and numbering supplied) NOTES AND COMMENTS: ***a. Effects of non-inclusion in the suit of a necessary party:

29

1) The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. (2nd par., Sec. 9, Rule 3, ROC arrangement and numbering supplied) 1) The non-inclusion of a necessary party does a) not prevent the court from proceeding in the action, and b) the judgment rendered therein shall be c) without prejudice to the rights of such necessary party. (3rd par., Sec. 9, Rule 3, ROC arrangement and numbering supplied) ***50. Maximino dela Cruz, Jesus Santiago, et al. filed suit alleging that dela Cruz inherited the property from the original possessor of the land in question, and that the heirs of Joaquin Asuncion succeeded in obtaining title over said land and registered in their name. They likewise prayed for the issuance of an injunctive writ. The heirs filed their answer with counterclaim. The court issued the injunctive writ. A petition was filed with the Supreme Court without including the names of dela Cruz and Santiago. May the petition be dismissed for falure to join dela Cruz and Santiago ? SUGGESTED ANSWER: No. Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. Parties may be dropped or added by order of the court 1) on motion of any party or 2) on its own initiative at any stage of the action and 3) on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3, ROC arrangement and numbering supplied; Heis of Asuncion, etc., v. Hon,. Gervacio, Jr., etc., et al., G.R. No. 115741, prom. March 9, 1999) NOTES AND COMMENTS: ***a. Failure to include indispensable parties results to dismissal of the action. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (Sec. 7, Rule 3, ROC) REASON: Their presence is a sine qua non to the exercise of judicial power (Borlasa v. Polistico, 47 Phil. 345). So that the whole matter in dispute may be determined once and for all in the litigation preventing multiplicity of suits. (Palarca v. Boguisi, 38 Phil. 177) ***b. The procedure for dismissal if indispensable party is not impleaded. 1) A motion should be filed for the inclusion of the indispensable party. and not a motion to dismiss. 2) The court then orders the inclusion of the indispensable party or opportunity afforded for amendment by the pleader. 3) If the plaintiff to whom the order to include the indispensable party is directed refuses to comply with the order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion (Sec. 3, Rule 17, ROC; Dael v. Teves, 136 SCRA 196), 4) Only upon unjustified failure or refusal to obey the order to include or to amendment is the action dismissed. (Cortez v. Avila, G.R. No. L-9782, prom. April 26, 1957) 51. What is a third party complaint ? What is its nature ? Explain. SUGGESTED ANSWER: A third (fourth, etc.) - party complaint 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 contribution, indemnity, subrogation, or any other relief, in respect of his opponent's claim. (Sec. 11, Rule 6, ROC) NOTES AND COMMENTS: a. Nature of a third-party complaint The third-party complaint is actually independent of and separate and distinct from the plaintiff's complaint. Were it not for this provision of the Rules of Court, it would have been filed independently and separately from the original complaint by the defendant against the third-party. But the Rules permit the defendant to bring in a third-party defendant or so to speak, to litigate his separate cause of action in respect of plaintiff's claim against a third-party in the original and principal case. (British Airways v. Court of Appeals, et al., G.R. No. 121824, prom. January 29, 1998)

30

b. The purpose of a third party claim: 1) To avoid circuitry of action and unnecessary proliferation of law suits; 2) To prevent multiplicity of suits by disposing of expeditiously in one litigation the entire subject matter arising from one particular set of facts. (British Airways v. Court of Appeals, et al., G.R. No. 121824, prom. January 29, 1998) In short, the main purpose is to achieve complete justice between all parties. SPECIAL JOINDER DEVICES. There are three special joinder devices whereby parties may be joined in an action. These are class suits, intervention and interpleader. Class suits and interpleader may be considered as part of the initiatory joinder devices because the parties are joined at the inception of the suit. They may likewise be considered involuntary joinder devices because the parties joined may or may not know that they are being joined. On the other hand intervention is a joinder device after the suit has been filed and is voluntary in character because a party asks for leave of court to be allowed to intervene. ***52. When could a class suit be filed ? a. When the subject matter of the controversy b. is one of common or general interest to many persons c. so numerous that it is impracticable to join all as parties, d. a number of them which the court finds to 1) be sufficiently numerous and 2) representative as to fully protect the interests of all concerned e. may sue or defend for the benefit of all. f. A party in interest shall have the right to intervene to protect his individual interest. (Sec. 12, Rule 3, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. When class suits proper and who files. A class suit may be to "sue or defend." So also, the representatives must be more than one person because of the phrase, "a number of them" b. Characteristics of a class suit: 1) There is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinct individuals. 2) The object of the suit is to obtain relief for or against numerous persons as a group or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate from and independent of those affecting the others. 3) The numerousness of parties involved that it is impracticable to join all as parties. (Liana's Supermarket v. NLRC, et al., G.R. No. 111014, prom. May 31, 1996) ***53. Four hundred residents of Barrio Ramos initiated a class action suit through Albert, a former mayor of the town, to recover damages sustained due to their exposure to toxic waste and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town. Is the class suit proper ? (1994) SUGGESTED ANSWER: No, the class suit is not proper. There is no cause of action belonging in common to the 400 residents. The extent of damage suffered by them is individual and separate from each other. The numerousness of the parties and object of the suit a single entity are not the only determinants of a class suit. There must be unity of cause ro right of action. The 400 residents did not suffer to the same extent and degree, consequently there have different causes of action. 54. A labor union brought suit involving a matter of common or general interest in behalf of its members who are so numerous that it is impracticable to bring all of them before the court. Is this a class suit ? SUGGESTED ANSWER: No. This is a suit brought in a representative capacity by the class suit. It is the function of a labor union to carry out the representation of its members and to file an actual suit for their benefit and behalf without joining them and avoid the cumbersome procedure of joining each and every member as a separate party. (Liana's Supermarket v. NLRC, et al., G.R. No. 111014, prom. May 31, 1996)

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***55. What are the procedural steps for intervention ? SUGGESTED ANSWER: a. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19, ROC) b. The motion is heard; c. The court grants leave and issues an order admitting the complaint or answer in intervention. d. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same unless a different period is fixed by the court. (Sec. 4, Rule 19, ROC NOTES AND COMMENTS: a. Nature of intervention. Intervention is a procedure whereby one not originally a party to a suit may, upon court authority before rendition of judgment by the trial court, join either as a party plaintiff or party defendant. b. Two classes of persons who may intervene: 1) A person who has a legal interest a) in the matter in litigation, or b) in the success of either of the parties, or c). an interest against both, 2) Any person who is so situated a) as to be adversely affected by (1) a distribution of property or (2) other disposition of property b) in the custody of the court or of an officer thereof. (Sec. 1, Rule 19, ROC arrangement and numbering supplied)

DEA TH OF A PARTY, TR AN SFER CH ANG E OF STATUS OF P AR TIES

OF INTE REST

AND

56. What is the nature of claims that survive the death of a party ? SUGGESTED ANSWER: These are the claims that could proceed as if the prospective plaintiff or defendant is still alive. Thus, the executor, administrator or any legal representative of the deceased may bring or defend suits. 57. Give some examples of claims that survive the death of a party. SUGGESTED ANSWER: Actions a. For the recovery or protection of the property or rights of the deceased. (Sec. 2, Rule 87, ROC) b. to recover real or personal property, or an interest thereon, from the estate, or c. to enforce a lien on real or personal property and d. to recover damages for an injury to person or property, real or personal. (Sec. 1, Rule 87, ROC). NOTES AND COMMENTS: a. The litmus test in determining whether an action survives depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, WHILE in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental. (Ruiz, et al., v. The Court of Appeals, et al., G.R. No. 116909, prom. February 25, 1999) In the above Ruiz case, attorneys fees were considered as basically a monetary claim which does not survive, under the old Sec. 21, Rule 3, ROC. IMPT. However, the 1997 Rules on Civil Procedure now allows the continuation until entry of final judgment of an action for the recovery of money arising from contract, express or implied, if the defendant dies before entry of final judgment. (Sec. 20, Rule 3, ROC) b. Real actions survive death.

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***58. What are the claims that do not survive the death of a party ? These are the claims which cannot be instituted against the executor, administrator or any legal representative of the deceased. These claims could however be prosecuted in the estate proceedings of the deceased. Examples: No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator. (Sec. 1, Rule 87, ROC) Claims other than those stated in the previous heading referring to Secs. 1 and 2, Rule 87, ROC. NOTES AND COMMENTS: a. Contractual money claims survive. If the action for recovery of money arising from contract, express or implied, is not yet filed, it could not filed against the executor, administrator or legal representative. It should be filed as a claim against the estate. However, if the case is already filed, and the death occurred before entry of final judgment in the court in which the case was pending, the case shall be allowed to continue. (Sec. 20, Rule 3, ROC) If the action for recovery of money did not arise from contract, express or implied, it does not survive. b. Claims that do not survive are dismissed even if attachment levided on defendants property. REASON: The purpose of the attachment which is to secure the outcome of the trial no longer exists, and so with the reasons for the issuance of the writ of attachment, insofar as the deceased is concerned. (Malolos v. Asia Pacific Finance Corporation, 147 SCRA 61) c. As a general rule personal actions do not survive . Exception: action for the recovery of money arising from contract, express or implied, if the defendant dies before entry of final judgment. (Sec. 20, Rule 3, ROC) 60. Uy filed a complaint for sum of money and damages against the estate of Carlos Ngo as represented by surviving spouse Ms. Sulpicia Ventura. Ventura moved to dismiss on the ground of defendants lack of legal personality. A motion to dismiss was seasonably filed by Ventura. Uy then amended his complaint deleting the estate of Carlos Ngo and named Ventura as the defendant. Should the complaint be dismissed ? Should the amended complaint be allowed ? SUGGESTED ANSWER: Yes, the complaint should be dismissed. No, the amended complaint should not be allowed. Neither a dead person nor his estate may be a party in a court action. A deceased person does not have such legal entity as is necessary to bring action so much so that a motion to suibstitute cannot lie and should be denied by the court. An action begun by a decedents estate cannot be said to have been begun by a legal person, since an estate is not a legal entity; such a n action is a nullity and a motion to amend the party plaintiff will not likewise lie. There is nothing to amend. Considering that capacity to be sued is a correlative of the apacity to sue, to the same exent, a decedent does not have he capacity to be sued and may not be named a party defendant in a court action. The proper action should be in the form of a claim to be filed in the testate or intestate estate proceedings of the deceased spouse. (Ventura v. Hon. Militante, et al., G.R. No. 63145, prom. October 5, 1999) 61. What is the duty of the attorney upon the death of a party whether plaintiff or defendant, occurring at any state of the action ? SUGGESTED ANSWER: a. If death occurs during the pendency of the action b. And the claim is not extinguished by death c. Counsel shall inform the court of such death d. Within thirty (30) days after such death e. Giving the name and address of the legal representative(s). (1st par., Sec. 16, Rule 3, ROC) NOTES AND COMMENTS: ***a. Counsels failure will not vitiatee proceedings and judgment. The failure of counsel to comply with his duty to inform the court of the death of his client and no substitution of the deceased party, will not invalidate the proceedings and the judgment thereon if the action

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survives the death of such party. (Benavidez v. Court of Appeals, et al., G.R. No. 125848, prom. September 6, 1999) IMPT: Ignore the holding in theHeirs of Lorilla, etc., v. Court of Appeals, et al., G.R. No. 118655, prom. April 12, 2000 which held that the provisions Sec. 21 of Rule 3 of the Rules of Court, which provides for the dismissal of the action for recovery of money, debt or interest thereon where the defendant dies before final judgment in the Regional Trial Court and a prosecution of the claim in the estate proceedings of the deceased, should not be applied where the counsel does not inform the court of the defendants death. This above Lorilla doctrine should be ignored because Sec. 21 of Rule 3 has been amended (it is not Sec. 20, Rule 3), to the effect that contractual money claims survuve. ***62. What should be done and what is the effect of the death of the PLAINTIFF while the action is pending in the trial court or on appeal before entry of final judgment in the court ? SUGGESTED ANSWER: a. The counsel reports the death; b. There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. c. The court requires the legal representative of the deceased plaintiff to explain why the action should not be dismissed because of the death of the plaintiff, where the claim does not survive. d. If the claim is extinguished by the plaintiff's death the case is dismissed. If the claim survives the death of the plaintiff, the case continues, with the substitution of the deceased plaintiff by his legal representative (s), or his heirs. e. When the action is for recovery of money arising from contract, express or implied, and the decedent dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in the Rules of Court for prosecuting claims against the estate of deceased persons. (Sec. 20, Rule 3, ROC) NOTES AND COMMENTS: a. Procedure and effect of death of prevailing plaintiff after entry of judgment or order: 1) The counsel reports the death; 2) There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. 3) The substitute executor, administrator or successor in interest may apply for the issuance of a writ of execution. (Sec. 7 [a], Rule 39, ROC) b. Procedure and effect of death of prevailing plaintiff after execution is issued: 1) The counsel reports the death; 2) There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. 3) The usual procedure for execution is then followed. 4) The amounts recovered through execution form part of the estate of the deceased prevailing plaintiff. ***63. What should bge done and what is the effect of the death of a DEFENDANT while the action is pending in the trial court or on appeal before entry of final judgment in the court ? a. The counsel reports the death; b. There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. c. The plaintiff is asked to explain why the suit should not be dismissed as a result of the death of the defendant. d. If the action is for the recovery of money arising from contract, express or implied, the case shall be allowed to continue until entry of final judgment. If the claim for money does not arise out of contract (but not for recovery arising from physical injuries), it should be dismissed.

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A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in the Rules of Court for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3, ROC) e. If the action is otherwise, it shall be dismissed. f. If it is a claim that survives another case may be filed against the executor, administrator, estate or other legal representative of the deceased. NOTES AND COMMENTS: a. Procedure and effects of death of a defendant after lapse of period to appeal or after entry of final judgment in the court: 1) The counsel reports the death; 2) There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. 3) The plaintiff: a) In case the judgment is for the recovery of real or personal property, or the enforcement of a lien thereon, applies for a writ of execution which is enforced against the defendant's executor, administrator or successor in interest. (Sec. 7 [b], Rule 39, ROC) b) In case the judgment is other than for the above, the plaintiff files a claim against the estate for the amount of the judgment. (Sec. 5, Rule 86, ROC; Py En Cheng v. Herrera, 70 SCRA 1307) b. Procedure and effects of death of a defendant after execution: 1) The counsel reports the death; 2) There is substitution by the legal representative or heirs of the deceased plaintiff, whether the claim survives or not. 3) The property actually levied is sold for the satisfaction of the judgment obligation and the person making the sale shall account to the deceased defendant's executor or administrator for any surplus in his hands. (Sec. 7 [c], Rule 39, ROC) ***64. A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note in the sum of P500,000.00, for liquidated damages of P50,000.00 and attorney's fees of P50,000.00. After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y's widow filed with the above court a special proceeding for the settlement of the intestate estate of Y. The widow, Z, was appointed the administratrix of the estate. A filed in the civil case a motion to have Y substituted by the administratrix; the latter did not object. The court granted the motion. Trial on the merits was had. In due course, the court rendered a decision in favor of A. At the time it was rendered, the period to file claims in the intestate estate of Y had already lapsed. The administratrix, Z. did not appeal from the decision; and after it became final, A moved for the execution of judgment. Z opposed the motion contending that the decision is void because the claim does not survive. The case should have been dismissed upon the death of Y since upon his death, the court lost jurisdiction over the case. 1) Rule on the issue. 2) If the opposition is without merit, can the writ of execution be validly issued ? 3) If it cannot be issued, what is the remedy of A ? SUGGESTED ANSWER: 1) The claim survives because it is upon a contractual money claim. (Sec. 20, Rule 3, ROC) Consequently opposition is without merit. 2) No, because a judgment for money cannot be enforced by a writ of execution. 3) The favorable judgment obtained by the plaintiff A, shall be enforced in the manner especially provided in the Rules of Court for prosecuting claims against the estate of deceased persons. (Sec. 20, Rule 3, ROC)

DO CT RIN E O F PR EC ON DITI ON S, PRIO R R ES OR T AN D AL TER NATI VE MO DES OF D ISP UTE RES OL UTI ON
DOCTRINE OF PRECONDITIONS OR PRIOR RESORT.

35

The doctrine which requires that certain matters or controversies be resolved utilizing nonjudicial methods before resort could be had to judicial intervention. Failure to do so could result in a dismissal of the action on the ground of prematurity of failure to comply with a condition precedent for filing the claim. (Sec. 1 [j], Rule 16, ROC) For example, prior resort to settlement under the Katarunggang Pambarangay, exhaustion of administrative remedies, earnest efforts towards a compromise, etc., are required in certain instances before filing a suit in court. DOCTRINE OF ALTERNATIVE MODES OF DISPUTE RESOLUTION. These are the methods other than judicial process for the settlement of disputes or controversies between parties. These methods include among others mediation, conciliation, arbitration, etc. This doctrine differs from the doctrine of preconditions or prior resort as the former is a mandatory requirement for filing suits while the latter is voluntary in character and becomes mandatory only if agreed upon by the parties.

PR EC ON DITI ON S A ND PRI OR RE SO RT
65. Are there instances where there is a requirement for efforts to compromise prior to the institution of s suit ? SUGGESTED ANSWER: Yes, no suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (Art. 151, The Family Code) NOTES AND COMMENTS: a. Suits between members of the same family that are subject to efforts towards a compromise are those: 1) Between husband and wife; 2) Between parents and children; 3) Between other ascendants and ascendants; and 4) Between brothers and sisters, whether of the full or half-blood. (Art. 150, The Family Code) The author submits that the requirement for efforts towards a compromise does not include illegitimate relations because of the natural antipathy between illegitimates and legitimates. This view is buttressed by reference to Art. 150 of the Family that the requirement does not apply to collateral relatives, except as between brothers and sisters. (However, see no. 34 below which interprets the law as including half-blood relationship) Of course, there may some disagreement to the above views considering the Filipino extended family system. But where does the line stop ? b. Cases not subject to compromise: No compromise upon the following questions shall be valid: 1) The civil status of persons; 2) The validity of a marriage or legal separation; 3) Any ground for legal separation; 4) Future support; 5) The jurisdiction of courts; 6) Future legitime. (Art. 2035, Civil Code of the Philippines) 66. Spouses Augusto and Maria Hontiveros filed a complaint for damages against Gregorio Hontiveros and Teodora Ayson alleging that the latter are married. Augusto and Gregorio are brothers. The defendants denied that they were married and alleged that Gregorio was a widower while Teodora was single. Is there need for showing that earnest efforts towards a compromise were taken but failed ? Explain your answer. SUGGESTED ANSWER: No. Whenever a stranger is a party in a cased involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory. The inclusion of Teodora as defendant and Maria as plaintiff takes the case out of the ambit of

36

the phrase members of the same family, which reders only to husband and wife, parents and children, ascendants and descendants, and brothers and sisters, whether full or half-blood. The enumeration of brothers and sisters do not comprehend sisters-in-law (hence also brothers-in-law). Furthermore, religious relationship and relationship by affinity are not given any legal effect in this jurisdiction. Consequently, defendant Teodora, who was described in the complaint as the wife of Gregorio, and plaintiff Maria, who is admittedly the spouse of Augusto, are considered as strangers to the Hontiveros family, for purposes of earnest efforts towards a compromise. (Spouses Hontiveros v. Regional Trial Court, etc., et al., G.R. No. 125465, prom. June 29, 1999)

KATARUNG GAN G PAMB AR AN GAY

67. The Heirs of Vinzons are co-owners of a parcel of land a portion of which was occupied by Mena Edoria as a lesee since 1951. Sometime in 1986, the Heirs filed suit against Mena and several others also occupying the same lot owned by them, docketed as Civil Case No. 1923, on the ground of non-payment of rentals. The trial court found that the respondent was not in arrears but was even advanced in his rentals. Both parties appealed. While Civil Case No. 1923 was on appeal, the Heirs filed another ejectment suit, Civil Case No. 2061, against Mena and 39 others on the ground that they refused to enter into an agreement as tenants-lessees and refused to pay the increased rent of P1.00 per sq.m. per month. The court dismissed Civil Case No. 2061 due to the pendency of Civil Case No. 1923. This decision was appealed to the RTC. While Civil Case No. 2061 was pending appeal before the RTC, the Heirs filed another case, docketed as Civil Case No.2137, likewise againstg the same defendants for expiration of the lease contract, refusal to sign written renewal of contract of lease and non-payment of rentals. Should Civil Case No. 2137, be dismissed for failure to comply with barangay conciliation despite allegations of the Heirs that there were undertaken barangay conciliation for Civil Case Nos. 1923, and 2061 ? SUGGESTED ANSWER: Yes. The Heirs cannot rely on barangay conciliation proceedings held in the other cases and consider the same as compliance with the law. (Heirs of Vinzons, etc. v. Court of Appeals, et al., G.R. No. 111915, prom. September 30, 1999) NOTES AND COMMENTS: a. Barangay referral condition precedent to filing of a complaint: 1) Before a court, or 2) Before any other government office for adjudication. (Sec. 412 [a], R.A. No. 7160) There is substantial compliance with the law even though no pangkat was constituted if the parties met at the office of the barangay chairman for possible settlement yet the efforts of the barangay chairman proved futile as no agreement was reached. (Diu v. Court of Appeals, 251 SCRA 472). All disputes are subject to referral. The lupon of each barangay shall have authority to bring together the parties actually residing in the same city of municipality for amicable settlement of all disputes. (Sec.408, R.A. No. 7160) The referral must be made irrespective of the amount and nature of the dispute and whether the case falls within the jurisdiction of the Municipal Trial Court or the Regional Trial Court. b. Disputes which need not be brought for barangay conciliation: 1) When the party is the government, or any subdivision or instrumentality thereof. 2) When one party is a public officer or employee, and the dispute relates to the performance of his public functions. 3) 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.

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4) 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. 5) Such other disputes which the President of the Philippines may determine in the interest of justice or upon the recommendation of the Secretary of Justice. (Sec. 408, R.A. No. 7160) 6) Labor disputes. This would defeat the salutary purpose of the Labor Code which mandates that the Labor Arbiters must first conciliate and mediate in order to expeditiously resolve the dispute. To require referral to the Barangay would result to delay in resolving labor disputes. (Montoya v. Escayo, 171 SCRA 442) 7) Where the dispute involves juridical persons. c. Instances where the parties may go directly to court woithout referral to barangay settlement: 1) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite. 2) Where the action may otherwise be barred by the statute of limitations. (Sec. 412 [b], R.A. No. 7160) d. Rules of venue for barangay conciliation: 1) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay. b. Those involving actual residents of different barangays within the same city or municipality shall brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant. c. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated. d. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. (Sec. 409, R.A. No. 7160) Remember that before the rules on venue are applied, the case must first be cognizable under the barangay justice system. e. Procedure for settlement under the Katarunggang Pambarangay: 1) Constitution of Lupong Tagapamayapa composed of the Punong Barangay as chairman and ten (10) to twenty (20) members. The barangay chairman is the concurrent Lupon secretary. 2) Filing of verbal or written complaint with the Punong Barangay who is also the Lupon Chairman. (Sec. 410 [a], R.A. No. 7160; Sec. 4, Rule VI, Katarunggang Pambarangay Rules) 3) Upon receipt of the complaint, the Punong Barangay shall within the next working day summon the respondent, the complainant and their witnesses to appear before him for mediation. (Sec. 410 [b], R.A. No. 7160) 4) The respondent shall answer the complaint orally or in writing and interpose a counterclaim, cross-claim or a third party complaint. (Sec. 5, Rule VI, Katarunggang Pambarangay Rules) 5) The Punong Barangay has fifteen (15) days from the first setting to mediate. (Sec. 410 [b], R.A. No. 7160; Sec. 10, Rule VI, Katarunggang Pambarangay Rules) 6) Upon failure of the mediation efforts, the Punong Barangay shall set a date fix the constitution of the panel known as the Pangkat ng Tagapagkasundo composed of three (3) members chosen from the Lupon. The three (3) members shall elect the chairman and the secretary. The Pangkat secretary shall prepare the minutes of the Pangkat and shall submit a copy attested by the Pangkat chairman to the Lupon secretary who shall report to the proper municipal or metropolitan court. (Sec. 410 [d], R.A. No. 7160) 7) The Pangkat shall be convened not later than three (3) days from its constitution. The Punong Barangay and the Pangkat shall proceed to hear the matter. (Sec. 410 [d], R.A. No. 7160) 8) The Pangkat shall exert all efforts to settle and resolve the dispute within fifteen (15) days from the day it convenes, extendible in its discretion for another period not to exceed fifteen (15) more days. (Sec. 410 [e], R.A. No. 7160; Sec. 10 [b], Rule VI, Katarunggang Pambarangay Rules)

38

9) Where the parties have agreed to arbitrate, the Punong Barangay of the Pangkat, as the case maybe, shall after the hearing make the award not later than the sixth day but not later than the fifteenth day following the date of such. (Sec. 10 [c], Rule VI, Katarunggang Pambarangay Rules) f. Forms of settlement under the Katarunggang Pambarangay: 1) Mediation and conciliation. Interchangeable terms indicating the process whereby disputants are persuaded by the Punong Barangay or Pangkat to amicably settle their disputes. (Rule II [1], Katarunggang Pambarangay Rules) 2) Arbitration is a process for the adjudication of disputes by which the parties agree to be bound by the decision of a third person or body in place of a regularly organized tribunal. (Rule II [h], Katarunggang Pambarangay Rules) ***68. On August 7 , 1996 Boleley filed suit against Surla for collection of sum of money stating in his complaint: "that plaintiff is of legal age, married, Filipino and a residnt of No. 100 Imelda Village, Baguio City while defendant is also of legal age, Filipino and wih postal office address at C-4 Ina Mansion, Kisad Road, Baguio City where he may be served with summons and other legal processes. The defendant f iled a motion to dismiss alleging that he also resided in baguio City, alleging, among others, that there was failure to refer to barangay conciliation. Resolve the motion. SUGGESTED ANSWER: Motion denied. It is clear from the complaint that the defendant does not reside in Baguio City. Post office address is not considered as residence. This is not affected by the defendants motion stating that he also resided in Baguio City. There is no need for prior referral to the barangay in the absence of showing in the complaint itself that the parties reside in the same city or municipality. (Boleyley v. Hon. Villanueva, etc., et al., G.R. No. 128734, prom. September 14, 1999) NOTES AND COMMENTS: a. Membership and residence in batangay required. Residence alone, without membership in the barangay would not be an accurate and reliable criterion considering that such residence may be actual but merely temporary, transient or categorized into other permutations as in the case of a house guest or a sojourner on a visit for a day or two. On the other hand, mere membership in the barangay alone without residence would defeat the purpose of the law which provides for an alternative to litigations in dispute settlement to members of the corresponding barangays who are actually residing therein. This is so because of lack of the common bond and belonging generally fostered in members of an identified aggrupation. Thus, the requirement is resident coupled with membership or vice-versa. (Bejer v. Court of Appeals, et al., 169 SCRA 566) Transient or temporary residence is not enough to vest "jurisdiction" upon the barangay "courts." (Domingo v. Rosero, 173 SCRA 135) The court in which non-criminal cases not falling within the authority of the barangay under the Local Government Code are filed, may, at any time before trial, motu proprio refer the case to the Lupon concerned for amicable settlement. (last par., Sec. 408, R.A. No. 7160) b. Waiver of non-referral. The failure of a party to specifically allege the fact that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that defense. (Corpuz v. Court of Appeals, et al., G.R. No. 117005, prom. June 19, 1997) Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. (1st sentence, Sec. 1, Rule 9, ROC) The ground for a motion to dismiss if there is failure to comply with the barangay referral is now, That a condition precedent for filing the claim has not been complied with. (Sec. 1 [j], Rule 16, ROC) If the non-referral is raised only after arraignment, this is deemed a waiver. (Banares II, et al., v. Balising, et al., G.R. No. 132624, prom. March 13, 2000) 69. On June 14, 1994, a complaint for ejection was filed before the MTC by Amparo, assisted by counsel. The parties reside in barangays of different cities which do not adjoin each other. The defendant filed a motion for referral to the proper barangay for arbitration and/or conciliation which the court granted through its Order dated November 7, 1994 directing the parties to conciliate before the Chairman of barangay 676, Zone 73, Ermita, Manila. Meanwhile, Atty. Raul entered his appearance as counsel and filed a motion to set aside the Order of November 7, 1994. The Court denied the same and referred the case to the

39

said barangay for conciliation proceedings under penalty of the case being dismissed. The Courts action was premised upon section 408 of Republic Act No. 7160 (The Katarungan Pambarangay provisions of the Local Government Code), which provides that, The Court in which non-criminal cases not falling within the authority of the lupon under this Code are filed, may at any time before trial, motu proprio, refer the case to the lupon concerned for amicable settlement. Was the action of the Court correct? SUGGESTED ANSWER: No. Referring a matter covered by the above cited provision that falls under the Rule of summary procedure to the Lupon is an unsound exercise of discretion. The Rule of summary Procedure was promulgated for the purpose of achieving an expeditious and inexpensive determination of the case. (Gachou v. De vera, Jr., SCRA 540) The fact that unlawful detainer cases fall under summary procedure, speedy resolution thereof is thus deemed a matter of public policy. Thus, the Rule frowns on delays. Manifestly, the act of referring the subject case to the lupon subverts the very nature of the Rule and defeats the objective of expediting the adjudication thereof. (Farrales, et al., v. Judge Camarista, A.M. MTJ99-1184, prom. March 2, 2000) NOTES AND COMMENTS: The above doctrine is applicable only where there is no requirement for prior referral to the lupon. Where the parties reside in the same city or municipality, or in adjoining barangayss of different cities or municipalities, prior resort to the barangay is a requirement before filing the case in Court, and the Court does not have the discretion to make a referral. 70. Elizabeth filed 16 estafa cases against Fidel and others. All of the parties reside in Barangay Dalig, Antipolo, Rizal. Each of the cases did not exceed P200.00. After arraignment and the accused pleading not guilty, they then filed a Motion to Dismiss the cases for prematurity in view of the failure to undergo conciliation before the Lupong Tagapamayapa or Pangkat ng Tagapagkasundo of Barangay Dalig in accordance with Sec. 412 in relation to Sec. 408 of the Local Government Code and Sec. 18 of the 1991 Revised Rule on Summary Procedure. On November 13, 1995, the Municipal Trial Court dismissed the 16 criminal cases without prejudice, pursuant to Section 18 of the 1901 Rule of Summary Procedure. More than two months later on February 26, 1996, Elizabeth through counsel, filed a Motion to Revive the abovementioned criminal cases against Fidel and other; stating that the requirement of referral to the Lupon for conciliation has already been complied with. On March 18, 1996, the Municipal Trial Court issued an order granting Elizabeths Motion to Revive. Fidel, et al assailed the March 18, 1996 order contending that the November 13, 1995 dismissal of the case against them had long become final and executory; considering that the prosecution did not file any motion for reconsideration of said order. Rule on the contention. SUGGESTED ANSWER: Contention is with merit. The dismissal has attained a state of finality. The order dismissing a case without prejudice is a final order if no motion for reconsideration or appeal therefrom is timely filed. The order becomes outside the courts power to amend and modify. The party who wishes to reinstate the case has no other remedy but to file a new complaint. (Banares II, et al., v. Balising, et al., G.R. No. 132624, prom. March 13, 2000) NOTES AND COMMENTS: a. Dismissal without prejudice may become final. The dismissal without prejudice of a complaint does not however mean that said dismissal order was any less final. Such order of dismissal is complete in all details, and though without prejudice, nonetheless finally disposed of the matter. It was not merely an interlocutory order but a final disposition of the complaint. (Banares II, et al., v. Balising, et al., G.R. No. 132624, prom. March 13, 2000) When a case covered by the 1991 Revised Rule on Summary Procedure is dismissed without prejudice for non-referral of the issues to the Lupon, the same may be revived only after the dispute subject of the dismissed case is submitted to barangay conciliation as required under the Local Government Code. There is no declaration to the effect that said case may be revived by mere motion even after the fifteen-day period within which to appeal or to file a motion for reconsideration has lapsed. Moreover, the 1991 Revised Rule on Summary Procedure expressly provides that the Rules of Court applies suppletorily to cases covered by the former.

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b. Rule applied not only to civil cases but also criminal cases. In Jaca v. Blanco, the Court defined a provisional dismissal of a criminal case as a dismissal without prejudice to the reinstatement threof before the order of dismissal becomes final or to the subsequent filing of a new information for the offense. (Ibid.) c. Rule applies to cases covered by the Summary Procedure.

EX HA US TIO N O F

AD MINIST RA TIV E R EME DIES

***71. What is the doctrine of exhaustion of administrative remedies ? SUGGESTED ANSWER: If a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy must be exhausted first before the court's judicial power can be sought. The premature invocation of court intervention is fatal to one's cause of action. (Union Bank of the Philippines v. Court of Appeals, et al., G.R. No. 131729, prom. May 19, 1998). The dismissal may be premised on the ground that a condition precedent for filing the claim has not been complied with. (Sec. 16 [j], ROC) Non-referral of a case for barangay conciliation when so required under the law is jurisdictional in nature and may be waived if not raised. 72. How are administrative remedies exhausted ? SUGGESTED ANSWER: The party with an administrative remedy must not merely initiate the prescribed procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary and premature resort to the court. (Diamonon v. Department of Labor and Employment, et al., G.R. No. 108951, prom. March 7, 2000; Spouses Zabat v. Court of Appeals, et al., G.R. No. 122089, prom. August 23, 2000) 73. What are the reasons for the existence of the doctrine of ehxaustion of administrative remedies ? In short, what are its purposes. a. Ensures an orderly procedure which favors a preliminary sifting process, particularly with respect to matters, peculiarly within the competence of the administrative agency, b. Avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process had run its course, c. Prevention of attempts to swamp the courts by resort to them in the first instance. (Carale, et al., v. Abarintos, et al., G.R. No. 120704, prom. March 3, 1997) d. The administrative process is intended to provide less expensive and more speedy solutions to disputes. e. For reasons of law, comity, and convenience. (Union Bank of the Philippines v. Court of Appeals, et al., G.R. No. 131729, prom. May 19, 1998) 74. What are the exceptions to the rule on exhaustion of administrative remedies ? a. Where the question is purely legal. b. Where judicial intervention is urgent. c. When its application may cause great and irreparable damage. d. When the controverted acts violate due process. e. Failure of a high government official from whom the relief is sought to act on the matter. f. When the issue of non-exhaustion of administrative remedies has been rendered moot. (Carale, et al., v. Judge Abarintos, et al., G.R. No. 120704, prom. March 3, 1997) g. When the administrative action is patently illegal amounting to lack or excess of jurisdiction. h. When there is estoppel on the part of the administrative agency concerned. i. When there is irreparable injury. j. When the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the later. k. When to require exhaustion of administrative remedies would be unreasonable. l. When it would amount to a nullification of a claim. m. When the subject mater is a private land in a land case proceedings.

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n. When the rule does not provide a plain, speedy and adequate remedy. (Paat, etc. v. Court of Appeals, et al., 266 SCRA 167)

AR BITR ATIO N AN D DISP UT E R ES OL UTIO N

AL TER NATIVE

MO DE S

OF

75. Meszellen sued drawee Allied Bank for damages which it allegedly suffered when checks were not paid to it but to some other person. Allied then filed a third-party complaint against Bank of Philippine Islands, for reimbursement in the event that it would be adjudged liable to pay plaintiff Meszellen. BPI filed a motion to dismiss the third-party complaint for lack of jurisdiction. Rule on the motion. SUGGESTED ANSWER: Motion granted. While a trial court that has jurisdiction over the main action, also has jurisdiction over the third-party complaint, even if the said court would have no jurisdiction over it had it been filed in an independent action. However, this doctrine does not apply in the case of banks, which have given written and subscribed consent to arbitration under the auspices of the PCHC. By participating in the clearing operations of the PCHC, Allied agreed to submit disputes of this nature to arbitration. Accordingly, it cannot invoke he jurisdiction of the trial courts without a prior recourse o the PCHC Arbitration Committee. (Allied Banking Corporation v. Court of Appeals, et al., G.R. No. 123871, prom. August 31, 1998) NOTES AND COMMENTS: a. Ground should be prematurity. It is suggested that the ground for dismissal should not be lack of jurisdiction (Section 1 [b], Rule 16, ROC) but failure to comply with a condition precedent for filing the claim (Section 1 [j], Rule 16, ROC) This is so because jurisdiction is conferred by a Judiciary Act and not by mere agreement of the parties. ***b. Arbitration defined: The submission of a controversy for the resolution of a nonjudicial third party chosen by the disputants. ***c. Nature of arbitration as a mode of dispute resolution: Arbitration has been held valid and constitutional. Even before the approval on June 19, 1953 of Republic Act No. 876, the Supreme Court has countenanced the settlement of disputes through arbitration. (BF Corporation v. Court of Appeals, et al., G.R. No. 120105, prom. March 27, 1998) Republic Act No. 876 was adopted to supplement the New Civil Code's provisions on arbitration. (Ibid.) Its potential as one of the alternative dispute resolution methods that are now rightfully vaunted as "the wave of the future" in international relations, is recognized worldwide. (Ibid.) To brush aside a contractual agreement calling for arbitration in case of disagreement between the parties would be a step backward. (Sea-Land Service, Inc. v. Court of Appeals, et al., G.R. No. 126212, prom., March 2, 2000) Arbitration as an alternative method of dispute resolution is encouraged by the Supreme Court. Aside from unclogging judicial dockets, it also hastens solutions especially of commercial disputes. (Allied Banking Corporation v. Court of Appeals, et al., G.R. No. 123871, prom. August 31, 1998)

CO URT S ELEC TIO N

76. State and explain an instance when an action quasi in rem becomes both an action quasi in rem and in personam. SUGGESTED ANSWER: If the property is attached and later the defendant appears, "the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. (Villareal, etc., et al., v. Court of Appeals, et al., G.R. No. 107314, prom. September 17, 1998) The main action in an attachment or garnishment is in rem until jurisdiction of the defendant is secured. Thereafter, it is in personam and also in rem, unless jurisdiction of the res is lost by dissolution of the attachment. If jurisdiction of the defendant is acquired but jurisdiction of the res is lost, it is then purely in personam. (Mabanag v. Gallemore, 81 Phil. 254) NOTES AND COMMENTS:

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a. General rule: In actions quasi in rem recoveru is limited only to the value of the res. Where the defendant in an action in personam is a non-resident and refuses to appear and submit to the jurisdiction of the court the jurisdiction of the latter is limited to the property within the country which the court may have ordered attached. In such a case, the property itself, is "the sole thing which is impleaded and is the responsible object which is the subject of the judicial power." (Villareal, etc., et al., v. Court of Appeals, et al., G.R. No. 107314, prom. September 17, 1998) Accordingly, "the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him." (Ibid) b. Action quasi in rem, defined. An action which while not strictly speaking an action in rem partakes of that nature and is substantially such. . (Valmonte, et al., v. Court of Appeals, et al., 252 SCRA 92) It is essentially an action against a person for the recovery of a specific property or rights thereto. Examples of actions quasi in rem: All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other forms of remedy, are in a general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. (Valmonte, et al., v. Court of Appeals, et al., 252 SCRA 92) ***c. Action in rem distinguished from action quasi in rem: 1) In actions quasi in rem an individual is named as defendant WHILE in an action in rem the action is usually directed against the thing itself. 2) In actions quasi in rem the judgment is conclusive only between the parties WHILE in an action in rem the judgment binds the whole world. (Valmonte, et al., v. Court of Appeals, et al., 252 SCRA 92) ***d. Action quasi in rem distinguished from action in personam: 1) In actions quasi in rem the property itself is bound WHILE in actions in personam it is the person himself who is bound. 2) In actions quasi in rem service of summons by publication is in order to afford the defendant due process WHILE service of summons in actions in personam for the purpose of obtaining jurisdiction. 3) In actions quasi in rem the recovery is limited only to the value of the property attached WHILE in actions in personam there is no such limitation. 77. What determines the nature of the action ? SUGGESTED ANSWER: Nature of action determined by allegations in complaints and the character of the relief sought. (Bayani v. Panay Electric Co., Inc. G.R. No. 139680, pro, April 12, 2000)

HI ERAR CH Y OF COU RTS

78. What is meant by the concept of hierarchy of courts ? Explain briefly. SUGGESTED ANSWER: While the Supreme Court, the Court of Appeals, and the Regional Trial Courts have concurrent original jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus, such concurrence does not accord litigants unrestrained freedom of choice of the court to which application therefor may be directed. There is a hierarchy of courts which is determinative of the venue of appeals and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. (Pearson, etc., et al., v. Intermediate Appellate Court, et al., G.R. No. 74454, prom. September 3, 1998) NOTES AND COMMENTS: a. Rationale for the hierarchy of courts: 1) A becoming regard for that judicial hierarchy most certainly indicate that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter with the Court of Appeals, and ultimately with the Supreme Court. (Pearson, etc., et al., v. Intermediate Appellate Court, et al., G.R. No. 74454, prom. September 3, 1998) 2) It is necessary to prevent inordinate demands upon the Supreme Court's time and attention which are better devoted to those matters within its exclusive jurisdiction,

43

and to prevent further over-crowding of the Court's docket. (Fortich, etc., et al., v. Corona, et al., G.R. No. 131457, prom. April 24, 1998) The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another, are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is either of these courts that the specific action for the writs procurement must be presented.. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. (Yared, etc. v. Hon. Ricardo M. Ilarde, etc., et al., G.R. No. 114732, August 1, 1000 ciiting Vergara v. Suelto, 156 SCRA 753, 766) ***b. Exceptions to the concept of hierarchy of courts: There are instances where a petition that is properly cognizable by lower courts may be filed directly with the Supreme Court. The Supreme Court has full discretionary powers to take cognizance of the petition filed directly to it under the following circumstances: 1) If compelling reasons, or the nature and importance of the issues raised, warrant, or justify direct referral to the Supreme Court. (Pearson, etc., et al., v. Intermediate Appellate court, et al., G.R. No. 74454, prom. September 3, 1998) 2) To avoid future litigations so as to promptly put an end to a controversy which has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution of a lower court. (Fortich, etc., et al., v. Corona, et al., G.R. No. 131457, prom. April 14, 1998) 3) The Supreme Court could resolve to take primary jurisdiction in the interest of speedy justice (Eugenio v. Drilon, et al., 252 SCRA 106, 110)

JU RISDI CTIO N IN GEN ER AL

79. How do courts acquire limited or special jurisdiction ? Explain briefly and give an example. SUGGESTED ANSWER: Similarly with general jurisdiction, it is the jurisdiction laws which prescribes the parameters of limited or special jurisdiction. For example, the jurisdiction of metropolitan trial courts, municipal trial courts and municipal trial courts over civil actions, probate proceedings, testate and intestate proceedings including grant of provisional remedies in proper cases, is limited only to instances where the value of the personal property, estate, or the amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs." (Sec. 33 [1], B.P. Blg. 129 as amended by R.A. No. 7691, specifically Sec. 5 which increased the jurisdictional amount effective April 16, 1999 or after five (5) years from the effectivity of R.A. No. 7691. R.A. No. 7691 took effect on April 15, 1994 (par. 1, Supreme Court Administrative Circular No. 09-94) WARNING: For Bar examination purposes, you must take note of the date of the factual setting given in the question. If the date of the filing is before April 16, 1999 then apply the old rule which provides for the jurisdictional amount of P100,000.00 for courts outside of Metropolitan Manila, and P200,000.00 for courts within Metropolitan Manila. If the date of filing as shown in the problem is April 16, 1999 or is undated use the new jurisdictional amounts of P200,000.00 and P400,000.00 for outside Metropolitan Manila and for Metropolitan Manila respectively. 80. Define exclusive original jurisdiction and give an example. SUGGESTED ANSWER: That kind of jurisdiction that could be exercised by a court to the exclusion of all other courts.

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For example, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise Exclusive original jurisdiction over cases of forcible entry and unlawful detainer. (Sec. 33 [2], B.P. Blg. 129) 81. Define concurrent jurisdiction. Give an example. SUGGESTED ANSWER: That type of jurisdiction that may be exercised by a court together with courts of different levels. For example, Regional Trial Courts shall exercise original jurisdiction (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and (2) In actions affecting ambassadors and other public ministers and consuls (Sec. 21, B.P. Blg. 129). The Court of Appeals shall exercises Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto and auxiliary writs pr processes, whether or not in aid of its appellate jurisdiction. (Sec. 9 [1], Ibid.) On the other hand, the Supreme Court shall have the power to Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consults, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (Sec. 5 [1], Article VIII, 1987 Philippine Constitution) While the Rules of Court is not a jurisdiction law, it should be considered that The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Regional Trial Court, or any judge thereof for hearing and decision on the merits. It may also be granted by a Regional Trial Court, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. (Sec, 2, Rule 102, ROC) NOTES AND COMMENTS: While it seems that there may be concurrent original jurisdiction, the concept of hierarchy of courts effectively negates the existence of concurrent original jurisdiction. However, there may still exist concurrent original jurisdiction, if the Supreme Court takes cognizance of any of the above cases, despite the concept of hierarchy of courts. 82. What is territorial jurisdiction of the trial courts ? SUGGESTED ANSWER: (a) Metropolitan trial courts, municipal trial courts and municipal circuit trial courts shall exercise their jurisdiction within the city, municipality or circuit for which the judge thereof is appointed or designated. (b) A regional trial court shall exercise its jurisdiction within the area defined by the Supreme Court as the territory over which the particular branch concerned shall exercise its authority. (Sec. A.2., Interim Rules, S.C. Res. dated January 11, 1983) 83. What determines the character of the subject matter whether the court has jurisdiction ? Explain briefly. SUGGESTED ANSWER: The complaint determines the character of the subject matter whether the court has jurisdiction. A court's jurisdiction cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration but only upon the allegations of the complaint (Tamano v. Hon. Ortiz, et al., G.R. No. 126603, prom. June 29, 1998, irrespective of whether the plaintiff is entitled or not entitled to recover upon the claim asserted therein a matter resolved only after and as a result of the trial. (Deltaventures Resources, Inc. v. Hon. Fernando P. Cabato, etc., et al., G.R. No. 118216, March 9, 2000) This is so because the complaint comprises a concise statement of the ultimate facts constituting the plaintiff's cause of action. (Ibid.) NOTES AND COMMENTS: a. How courts acquire jurisdiction over the subject matter: Firstly, there must be a statute that confers jurisdiction over certain subject matter. Secondly, the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the course of action, then determines whether the specific

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subject matter would fall under the jurisdiction conferred by the statute. (Deltaventures Resources, Inc. v. Hon. Cabato, etc. et al., G.R. No.118216, prom. March 9, 2000) It is settled that jurisdiction of courts over the subject matter of the litigation is conferred by law and determined by the allegations in the complaint. ((Que v. Court of Appeals, et al., G.R. No. 135442, August 31, 2000) ***b. Issue of jurisdiction could be raised only during the proceedings of the case and during the appeal: While jurisdiction over the subject matter of a case may be objected to at any stage of the proceeding even on appeal, this particular rule, however, means that jurisdictional issues in a case can be raised only during the proceedings in said case and during the appeal of said case. It certainly does not mean that lack of jurisdiction of a court in a case may be raised during the proceedings of another case, in another court and even by anybody at all. (Aragon, etc., et al., v. Court of Appeals, et al., 270 SCRA 603) c. All RTC branches are one court. The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are coordinate and equal courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continued by abd before another branch or judge. It is for this reason that section 57 of the Judiciary Act expressly grants to the Secretary of Justice [now the Supreme Court), the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. (Limpo v. Court of Appeals, et al., G.R. No. 124582, June 16, 2000) 84. What is the exclusive oiginal jurisdiction of the four (4) lower trial courts in civil cases under the Expanded Jurisdiction Law (R.A. No. 7691) ? a. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate including grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand 1) Does not exceed Two Hundred Thousand pesos (P200,000.00), **or 2) In Metro Manila where such personal property, estate, or amount of the demand does not exceed Four Hundred Thousand pesos (P400,000.00),*** exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs, the amount of which must be specifically alleged, Provided, that interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees. b. Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, that when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession; and c. Exclusive original jurisdiction in all civil actions which involve title to or possession of real property, or any interest therein where the assessed value of the property or interest therein:**** 1) Does not exceed Twenty Thousand pesos (P20,000.00), or 2) In Metro Manila, where such assessed value does not exceed Fifty Thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, that in cases of land not declared for taxation purposes the value of such property shall be determined by the assessed value of the adjacent lots. (Sec. 33, B.P. Blg. 129, as amended by R.A. No. 7691) NOTES AND COMMENTS: a. Jurisdiction in probate proceedings is determined by the gross value of the estate. (Lim v. Court of Appeals, et al., G.R. No. 124715, prom., January 24, 2000)

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b. Note that under Sec. 33, B.P. No. 129, as amended by R.A. No. 7691, grants jurisdiction to MTC over actions involving title to real property for any interest therein release etc. The holding in Ddurub v. Judge Paras, A.M. No. MTJ 00 1242, prom. January 20, 2000 to the effect that MTC have no jurisdiction over actions for quieting title and recovery of ownership is not doctrinal because the factual antecedents occurred prior to R.A. No. 7691. ** After five (5) years from the effectivity of R.A. No. 7691, or on April 16, 1999 the jurisdictional amount is adjusted to P200,000.00. (Sec. 5, R.A. No. 7691) *** In Metro Manila, the amount is P400,000.00. (Ibid.) **** There is no change in jurisdictional amounts. ***85. What is meant by the totality rule which is applicable only to the four (4) lower trial courts (the Municipal Trial Court, the Municipal Circuit Trial Court, the Municipal Trial Court in Cities, and the Metropolitan Trial Court) ? SUGGESTED ANSWER:Where there are several claims or causes of action between different parties embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions. (Sec. 33 [1], B.P. Blg. 129) The rule on joinder of causes of action and joinder of parties should be applied. NOTES AND COMMENTS: Illustrationof the totality rule: The following amounts are the claims of various parties against Benjie, where the plaintiffs are all residents of Victoria, Tarlac, and all the claims arose out of the same transaction: Remy Randy Raymond Total = P 75,000.00 = 75,000.00 = 150,000.00 = P300,000.00

There could be no proper joinder of parties if the claims are to be filed before the Municipal Trial Court of Victoria, Tarlac because under the totality rule, the joined claims of the parties exceed the jurisdictional amount of said court. The illustration presupposes that the filing took place after April 16, 1999 when Sec. 5, R.A. No. 7691 finds application increasing the jurisdictional amount to P200,000.00. 86. What is the delegated jurisdiction of the four (4) lower trial courts in cadastral and land registration cases ? SUGGESTED ANSWER: a. Metropolitan Trial Courts, Municipal Trial Courts, Municipal Circuit Trial Courts, Municipal Trial Courts in cities. b. May be assigned by the Supreme Court to hear and determine cadastral or land registration cases c. Covering lots 1) Where there is no controversy or opposition, or 1) Contested lots where the value of which do not exceed One Hundred Thousand pesos (P100,000.00), such value to be ascertained a) By the affidavit of the claimant, or b) By agreement of the respective claimants if there are more than one, or a) From the corresponding tax declaration of the real property. (Sec. 34, B.P. Blg. 129, as amended by R.A. No. 7691) NOTES AND COMMENTS: Decisions of Metropolitan Trial Courts, Municipal Trial Courts, Municipal Circuit Trial Courts and Municipal Trial Courts in cities in exercise of their delegated jurisdiction shall be appealable in the same manner as decisions of the Regional Trial Courts. (Sec. 34, B.P. Blg. 129, as amended by R.A. No. 7691) 87. What is the special jurisdiction of the four (4) lower trial courts in certain cases ? SUGGESTED ANSWER: a. In the absence of the Regional Trial Judges in a province or city, b. Any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge.

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c. May hear and decide petitions for a writ of habeas corpus or application for bail in criminal cases in the province or city where the absent Regional Trial Court Judges sit. (Sec. 35, B.P. Blg. 129) 88. What is the exclusive orginal jurisdiction of Regional Trial Courts in civil cases ? SUGGESTED ANSWER: "Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty Thousand pesos (P20,000.00) or, for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction of which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, Municipal Circuit Trial Courts; (3) In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two hundred thousand pesos (P200,000.00) or, in Metro Manila, where such demand or claim exceeds Four hundred thousand (P400,000.00);** (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Four hundred thousand pesos (P400,000.00); ** (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial; (7) In all civil actions special proceedings falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and (8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds Two hundred thousand (P200,000.00) or, in such other cases in Metro Manila where the demand, exclusive of the abovementioned items exceeds Four hundred thousand pesos (P400,000.00). ** (Sec. 19, B.P. Blg. 129 as amended by as amended by R.A. No. 7691) ** After five (5) years from the effectivity of R.A. No. 7691, April 16, 1999 the jurisdictional amount is adjusted to P200,000.00. for places outside of Metro Manila, and P400,000.00 for Metro Manila. (Sec. 5, R.A. No. 7691) NOTES AND COMMENTS: a. RTC has jurisdiction as the issue was not title to the property but whether the bank can be compelled to issue a board resolution confirming the Deed of Sale. (Rural Bank of Milaor, Camarines Sur v. Octevnia, et al., G.R. No. 137686, prom. February 8, 2000) ***89. What is the criteria for determining whether the subject matter is or is not an action not capable of pecuniary estimation. Explain briefly. NOTES AND COMMENTS: a. First ascertain the nature of the principal action or remedy. 1) If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the regional trial courts would depend on the amount of the claim. 2) However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, such actions are cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by regional trial courts. Rationale: The second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instanced (now regional trial courts), which were the lowest courts of record at the time the first organic laws of the Judiciary (Act 136 of the Philippine Commission of June 11, 1901) were enacted allocating jurisdiction. (Spouses

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de Leon v. Court of Appeals, et al., G.R. No. 104796, prom. March 6, 1998) (Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor, et al., G.R. No. 138896, June 20, 2000) NOTES AND COMMENTS: a. Actions not capable of pecuniary estimation: 1) action for rescission of contract one not capable of pecuniary estimation. Reason: The court would certainly have to undertake an investigation into facts that would justify one act or the other. No award of damages may be had in an action for rescission without first conducting an inquiry into matters which would justify the setting aside of a contract, in the same manner that regional trial courts would have to make findings of fact and law in actions in other cases not capable of pecuniary estimation. 2) action relative to the legality or illegality of the conveyance sought for and the determination of the validity of the money deposit made. (Arroz v. Alohado, et al., L22153, March 31, 1967) 3) action contesting the validity of a judgment. (De Ursua v. Pelayo, L-13285, April 18, 1950) 4) action relative to the validity of a mortgage. (Bunayog v. Tunas, L-12707, December 23, 1959) 5) action concerning the relations of the parties, the right to support created by the relation, etc., in actions for support. (Baito v. Sarmiento, L-13105, August 25, 1960) 6) action where the issue is the validity or nullity of documents upon which claims are predicated. (De Rivera, et al., v. Halili, L-15159, September 30, 1963) Issues of the same nature may be raised by a party against whom an action for rescission has been brought, or by the plaintiff himself. It is difficult to see why a prayer for damages in an action for rescission should be taken as the basis for concluding such action as one capable of pecuniary estimation - a prayer which must be included in the main action if the plaintiff is to be compensated for what he may have suffered as a result of the breach committed by the defendant, and not later on precluded from recovering damages by the rule against splitting a cause of action and discouraging multiplicity of suits. (Lapitan v. Scandia, Inc., 24 SCRA 479) ***90. What courts have jurisdiction over the following cases filed in Metro Manila ? a) An action for specific performance or, in the alternative for damages in the amount of P350,000.00. b) An action for a writ of injunction; c) An action for replevin of a motor cycle valued at P300,000.00; d) An action for interpleader to determine who between the defendants is entitled to receive the amount of P380,000.00 from the plaintiff; e) A petition for the probate of a will involving an estate valued at P400,000.00. (Bar: 1997) SUGGESTED ANSWERS: a) and d) the Metropolitan Trial Court. In alternative causes of action it is the claim for sum of money which determines jurisdiction. b) and c) The Regional Trial Court because the action is not subject to pecuniary estimation. e) Metropolitan Trial Court because the jurisdictional amount falls within that court. NOTES AND COMMENTS: If amount in the alternative cause of action is within the jurisdiction of the Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court it should be brought in those courts. Inclusion of the alternative claim which is not subject to pecuniary estimation does not vest jurisdiction with the Regional Trial Court. (Cruz v. Tan, 87 Phil. 627) 91. A, a resident of Dagupan City secured a favorable judgment in an ejectment case against X, a resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment, entered on 15 June 1996, had not as yet been executed. In July 2001, A decided to enforce the judgment of the Metropolitan Trial Court of Manila. With what court should A institute the proceedings ? (Bar: 1997, adapted)

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SUGGESTED ANSWER: With the Regional Trial Court because there could be no enforcement by motion considering the lapse of the five (5) year period. A should file a separate action for enforcement of the judgment which is one not subject to pecuniary estimation. 92. What is the original jurisdiction of Regional Trial Courts in other cases ? SUGGESTED ANSWER: "Regional Trial Courts shall exercise original jurisdiction: a. In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and b. In actions affecting ambassadors and other public ministers and consuls." (Sec. 21, B.P. Blg. 129) 93. What is the jurisdiction of the Regional Trial Courts to try special cases ? SUGGESTED ANSWER: "The Supreme Court may designate certain branches of the Regional Trial Courts to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice." (Sec. 23, B.P. Blg. 129) NOTES AND COMMENTS: a. Family relations. Republic Act No. 8369, the "Family Courts Act of 1997," approved on October 28, 1997 established Family Courts which shall have exclusive original jurisdiction to hear and decide various juvenile and domestic relations cases, whether civil or criminal. b. Agrarian cases. Special Agrarian Courts which are Regional Trial Courts, are given original and exclusive jurisdiction over two categories of cases, to wit: (1) all petitions for the determination of just compensation to landowners'and (2) 'he prosecution of all criminal offenses under [R.A. No. 6657]. The provision of Section 50 must be construed in harmony with this provision by considering cases involving the determination of just compensation and criminal cases for violations of R.A. No. 6657 as excepted from the plenitude of power conferred on the DAR. Indeed, there is reason for this distinction. The DAR is an administrative agency which cannot be granted jurisdiction over cases of eminent domain (for such are taking [sic] under R.A. No. 6657) and over criminal cases. Thus, in EPZA v. Dulay and Sunulong v. Guerrero it was held that the valuation of property in eminent domain is essentially a judicial function which cannot be vested in administrative agencies, while in Scotys Department Store v. Micaller the Supreme Court struck down a law granting the then Court of Industrial Relations jurisdiction to try criminal cases for violations of the Industrial Peace Act. It would subvert the original and exclusive jurisdiction of the RTC [Regional Trial Court] for the Department of Agrarian Reform to vest original jurisdiction in compensation cases in administrative officials and make the RTC an appellate court for the review of administrative decisions. What [agrarian] adjudicators are empowered to do is only to determine in a preliminary manner the reasonable compensation to be paid to landowners, leaving to the courts the ultimate power to decide the question. ((Escano, Jr., et al., v. Court of Appeals, et al., G.R. No. 101932, Prom. January 24, 2000) c. Complaints for overcharging of electric rates. The Regional Trial Court is a court of general jurisdiction. On the other hand, Republic Act No. 6173, as amended by Presidential Decree No. 1206 empowered the ERB to regulate and fix the power rates to be charged by electric companies. The power to fix rates of electric consumption does not carry with it the power to determine whether or not petitioner is guilty of overcharging customers for consumption of electric power. This falls within the jurisdiction of the regular courts. The question of determining the breakdown and itemization of the power adjustment billed by an electric power company to its customers is not a matter that pertains to the ERBs supervision, control or jurisdiction to regulate and fix power rate but falls within the jurisdiction of the regular courts. (Cagayan Electric Power and Light Company, Inc. v. Collera , et al., G.R. No. 102184, prom. April 12, 2000) Example: Regular courts would have jurisdiction where the complaint only alleged that Cagayan Electric Power and Light Company, Inc. (a public utility company) charged the full rate of electric consumption despite absence of any increases in the cost of energy. If the public utility company used the deposits, discounts, surcharges, power cost adjustment (PCA) and the currency exchange rate adjustment (CERA) rates as instruments to obtain undue profits through various loan activities and benefits provided to its employees, then the cause of action against the

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public utility may have to be litigated before the regular courts. (Cagayan Electric Power and Light Company, Inc. v. Collera, et al., G.R. No. 102 184, prom. April 12, 2000) d. Violation of the Omnibus Electric Code. Under Sec. 268 of the Omnibus Electric Code, RTCs have exclusive jurisdiction to try and decide any criminal action or proceeding for violation of the Code, except those relating to the offense of failure to register or failure to vote. This is so even if the penalty does not exceed six years. It is evident from Sec. 32, BP 129, as amended by Sec. 2 of RA 7691, that the jurisdiction of first-level courts, does not cover those criminal cases which by specific provision of law are cognizable by the RTC. (Juan, et al., v People, G.R. No. 132378, prom., January 18, 2000 ***94. Mendoza purchased from Singapore Airlines in Manila conjunction tickets for Manila-Singapore-Athens-Larnaca-Rome-Turin-Zurich-Geneva-Copenhagen-NewYork. American Airlines is not a participating airline in any of the segments in the itinerary under the conjunction tickets. In Geneva, Mendoza decided to skip Copenhagen and go straight to New York. As there was no direct flight under his conjunction tickets from Geneva to New York, Mendoza exchanged the unused portion of the ticket for a one-way ticket from Geneva to New York from American Airlines. American Airlines issued its own ticket to Mendoza in Geneva, and claimed the value of the unused portion of the conjunction ticket from the IATA clearing house in Geneva. Mendoza allegedly encountered difficulties before he could board the American Airlines plane in Geneva. He was allegedly subjected to embarassment and mental anguish at the Geneva Airport when American Airline security officers prevented him from boarding the plane, detained him for about an hour and allowed him to board the plane only after all the passengers have boarded. Mendoza then filed a complaint for damages in the RTC of Cebu. American Airlines filed a motion to dismiss for lack of jurisdiction. It asserts that under Art. 28(1) of the Warsaw Convention, an action for damages must be brought, at the option of the plaintiff, either before the court of the carriers domicile, the carriers principal place of business, the carriers place of business through which the contract was made, or at the place of destination. It asserts that the Philippines is neither of these options, and that the ticket it used in geneva for Mendozas final leg of his trip was a separate and distinct contract of carriage from that entered into by Mendoza and Singapore Airlines in Manila which incidentally was already a terminated contract. Thus, American Airlines, not being a participation airline in the conjunction ticket issued by Singapore Airlines,its contract of carriage cannot be deemed an extension of the contract of carriage under the conjunction ticket. Rule on the motion. SUGGESTED ANSWER: Denied, as all the allegations are without merit. The contract of carriage between Mendoza and Singapore Airlines although performed by different carriers under a series of airline tickets, including that issued by petitioner, constitutes a single operation. Members of the IATA are under a general pool partnership agreement wherein they act as agent of each other in the issuance of tickets to contracted passengers to boost ticket sales worldwide and at the same time provide passengers easy access to airlines which are otherwise inaccessible in some parts of the world. Booking and reservation among airline members are allowed even by telephone and it has become an accepted practice among them. A member airline which enters into a contract of carriage consisting of a series of trips to be performed by different carriers is authorized t receive the fare for the whole trip and throught the required process of interline settlement of accounts by way of the IATA clearing house an airline is duly compensated for the segment of the trip serviced. Thus, when American Airlines accepted the unused portion of the conjunction ticket, entered it in the IATA clearing house and undertook the transport of Mendoza over the route covered by the unused portion of the conjunction ticket, i.e. Geneva to New York, American Airlines tacitly recognized its commitment under the IATA pool arrangement to act as agent of the principal contracting airlines, Singapore Airlines, as to the segment of the trip the petitioner agreed to undertake. As such, American Airlines thereby assumed the obligation to take the place of the carrier originally designated in the original conjunction ticket. The American Airlines argument that it is not designated carrier in the original conjunction ticket and that it issued its own ticket is not decisive of its liability. The new ticket was simply a replacement for the unused portion of the conjunction ticket, both tickets being for

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the same amount of US$2,760 and having the same points of departure and destination. By constituting itself as an agent of the principal carrier, American Airlines undertaking should be taken as part of a single operation under the contract of carriage executed by the private respondent and Singapore Airlines in Manila. (American Airlines v. Court of Appeals et al., G.R. No. 116044-45, prom. March 9, 2000)

VE NU E
***95. Where is the venue of real actions ? SUGGESTED ANSWER: a. Actions affecting title to or possession of real property or interest therein, b. shall be commenced and tried in the proper court c. which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. d. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof is situated. (Sec. 1, Rule 4, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Venue, defined. The place of trial or geographical location in which an action or proceeding may be brought. (Manila Railroad Co., v. Attorney General, 20 Phil. 523, 588) b. Venue same for all courts. Venue is the same for the Regional, Metropolitan and Municipal Trial Courts. (Rule 5 in relation to Rule 4, ROC) ***96. Where is the venue of personal actions ? SUGGESTED ANSWER: All other actions may be commenced and tried a. where the plaintiff or any of the principal plaintiffs resides, or b. where the defendant or any of the principal defendants resides, or c. in the case of a non-resident defendant where he may be found at the election of the plaintiff. (Sec. 2, Rule 4, ROC arrangement and numbering supplied) NOTE AND COMMENTS: The last choice of where the defendant may be found is available only where the defendant is a non-resident of the Philippines. Venue of actions against nonresidents: a. If any of the defendants does not reside and is not found in the Philippines, b. And the action affects 1) The personal status of the plaintiff, or 2) Where the property or any portion thereof is situated or is found. (Sec. 3, Rule 4, ROC) The venue of personal actions by a non-resident plaintiff against a resident defendant is where the defendant may be summoned and his property leviable upon execution in case of favorable, final and executory judgment. (King Mau Wi v. Sycip, G.R. No. L-5897, April 23, 1954) In short, where the Philippine resident lives or resides. (Corre v. Corre, G.R. No. L10128, XXI L.J. 542) ***97. Roy represented by his attorney-in-fact Crispin filed with the RTC, Branch 53, Rosales, Pangasinan a complaint against Jose as owner and operator of the J.B. Bus Lines. Roy sought to recover actual and exemplary damages after a bus owned by Jose rammed Roy's car along the Maharlika Highway, Sto. Tomas, Batangas. The complaint alleged, among others, that Roy is a resident of Rosales, Pangasinan before he went to the U.S.A. where he now resides, and is represented by Crispin his attorneyin-fact who resides in Quezon City. It was likewise alleged that Jose's business address is at Pasay City. Jose filed a motion to dismiss on the ground of improper venue. He alleges that since Roy was not a resident of the Philippines, venue should have been laid in Gubat, Sorsogon, Jose's residence. Rule on the motion. SUGGESTED ANSWER: Granted. Roy has transferred his actual residence to the U.S.A. For purposes of venue, actual residence signifies personal residence, i.e. physical presence and actual stay thereat. This physical presence, nonetheless, must be more than

52

temporary and must be with continuity and consistency. (Baritua v. Court of Appeals, et al., 267 SCRA 331,335-336) There is no showing that his stay in the U.S.A. is merely temporary in character, neither has he reinstituted his residence in Rosales, Pangasinan. NOTES AND COMMENTS: a. The residence of a person must be his personal, actual or physical habitation or his actual residence or abode. It does not mean fixed permanent residence to which when absent, one has the intention of returning. For purposes of venue, actual residence signifies personal residence, i.e. physical presence and actual stay thereat. This physical presence, nonetheless, must be more than temporary and must be with continuity and consistency. (Baritua v. Court of Appeals, et al., 267 SCRA 331,335-336) b. Venue must not be left to the whim or caprice of the plaintiff : The rule on venue, like other procedural rules, are designed to insure a just and orderly administration of justice or the impartial and evenhanded determination of every action and proceeding. Obviously, this objective will not be attained if the plaintiff is given unrestricted freedom to choose the court where he may file his complaint or petition. The choice of venue should not be left to the plaintiff's whim or caprice. He may be impelled by some ulterior motivation in choosing to file a case in a particular court even if not allowed by the rules on venue. (Sy, et al., v. Tyson Enterprises, et al., 119 SCRA 371, 372) The choice to be exercised by the plaintiff should always be in accordance with the Rules of Court. This choice cannot unduly deprive a resident defendant of the rights conferred upon him by the Rules of Court. (Baritua v. Court of Appeals, et al., 267 SCRA 331,338) 98. When are the instances where the rules on venue are not applicable ? SUGGESTED ANSWER: a. In those cases where a specific rule or law provides otherwise; or b. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Sec. 4, Rule 4, ROC) NOTES AND COMMENTS: a. Instances where a specific rule provide for a venue other than that under Rule 4: 1) Venue for the settlement of the estate of deceased persons. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled in the Regional Trial Court in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, in the Regional Trial Court of any province which he had estate. (1st sentence, Sec. 1, Rule 73, ROC) 2) Escheat proceedings. When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Regional Trial Court of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines. (Sec. 1, Rule 91, Ibid.) 3) Guardianship proceedings. Guardianship of the person or estate of a minor or incompetent may be instituted in the Regional Trial Court of the province, or in the justice of the peace court of the municipality (now the municipal trial court, municipal circuit trial court) or in the municipal court of the chartered city (now in certain instances, the metropolitan trial court) where the minor or incompetent resides, and if he resides in a foreign country, in the Regional Trial Court of the province wherein his property or part thereof is situated. (Sec. 1, Rule 92, ROC words in parentheses supplied) The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence. (Sec. 3, Ibid.) 4) Adoption and custody of minors. A person desiring to adopt another or have the custody of a minor shall present his petition to the Regional Trial Court of the province, or the city or municipal court of the city or municipality in which he resides. (Sec. 1, Rule 99, ROC) 5) Proceedings for hospitalization of insane persons. A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Regional Trial Court of the province where the person alleged to be insane is found. (1st sentence, Sec. 1, Rule 101, Ibid.)

53

6) Change of name. A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides. (Sec. 1, Rule 103, Ibid.) 7) Voluntary dissolution of corporations. A petition for dissolution of a corporation shall be filed in the Regional Trial Court of the province where the principal office of a corporation is situated. (1st sentence, Sec. 1, Rule 104, ROC) 8) Judicial approval of voluntary recognition of minor natural children. Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Regional Trial Court of the province in which the child resides. (Sec. 1, Rule 105, Ibid.) 9) Constitution of family home. The head of a family owning a house and he land on which it is situated may constitute the same into a family home by filing a verified petition to that effect with the Regional Trial Court of the province or city where the property is located. (Sec. 1, Rule 106, Ibid.) 10) Appointment of absentee's representative. When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Regional Trail Court of the place where the absentee resided before his disappearance, for the appointment of a person to represent him provisionally in all that may be necessary. (Sec. 1, Rule 107, Ibid.) 11) Cancellation or correction of entries in the Civil Registry Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. (Sec. 1, Rule 108, Ibid.) 12) Petition for deposition before action. In the court of the place of the residence of any expected adverse party. (Sec. 1, Rule 24, Ibid.) 99. Unimasters, a corporation has for its principal place of business Tacloban City while Kubota has its principal place of business in Quezon City. Unimasters then instituted suit against Kubota in Tacloban City. Kubota now files a motion to dismiss considering the contractual agreement that, "All suits arising out of this Agreement shall be filed with/in the proper Courts of Quezon City." Resolve the motion to dismiss. SUGGESTED ANSWER: Denied. The agreement does not contain additional words and expressions definitely and unmistakably denoting the parties desire and intention that actions between them should be ventilated only at the place selected by them, Quezon City - or other contractual provisions clearly evincing the same desire and intention. Thus, the stipulation should be construed, not as confining suits between the parties only to that one place, Quezon City, but as allowing suits either in Quezon City or Tacloban City, at the option of the plaintiff Unimasters. (Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,778) NOTES AND COMMENTS: a. Requirements for mandatory or restrictive agreement by the parties to be determinative of venue. Where the parties have 1) validly agreed in writing 2) before the filing of the action 3) on the exclusive venue thereof. (Sec. 4 [b], Rule 4, ROC arrangement and numbering supplied) 4) The waiver must not be contrary to public policy or prejudicial to third persons. (Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,767) ***5) These agreements are usually characterized by the use of restrictive or limiting words like, "only," solely," "exclusively," "alone," "limited to," "in no other place," "to the exclusion of," and other terms indicative of a clear and categorical intent to lay the venue at a specific place and thereby waiving the general provisions of the Rules or the law on venue or proscribing the filing of suit in any other competent court. (concurring opinion of Justice Regalado in Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,781) b. Interpretation of MANDATORY or restrictive agreements on venue: The language of the parties must be so clear and categorical as to leave no doubt of the parties'

54

intention to limit the place or places, or to fix places other than those indicated in Rule 4 of the Rules of Court, for their actions. REASON: Restrictive stipulations on venue are derogations of the general policy that convenience is the raison d'etre of the rules of venue. (Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,768) c. Illustrative cases of mandatory or restrictive agreements on venue 1) A stipulation that if the lessor violated the contract of lease he could be sued in Manila, while if it was the lessee who violated the contract, the lessee could be sued in Masantol, Pampanga. REASON: There was an agreement concerning venue of action and the parties are bound by such mandatory agreement. (Villanueva v. Mosqueda, 115 SCRA 904) 2) A condition that - any action against RCPI relative to the transmittal of a telegram must be brought to the courts of Quezon City alone - was printed clearly in the upper from portion of the form to be filled in by the sender. REASON: That neither party reserved the right to choose the venue of action as fixed in Section 2, Rule 4, as is usually done if the parties mean to retain the right of election so granted by Rule 4 can be drawn the reasonable inference that the parties intended to definitely fix the venue of action, in connection with the written contract sued upon, in the courts of Quezon City only. (Arguero v. Flojo, 168 SCRA 540) 3) "Venue for all suits, whether for breach thereof or damages or any cause between the LESSOR and LESSEE, and persons claiming under each, ** (shall be) the courts of appropriate jurisdiction in Pasay City." REASON: The language used leaves no room for interpretation. It clearly evinces the parties' intent to limit to the "courts of appropriate jurisdiction of Pasay City" the venue of all suits between the lessor and the lessee and those between parties claiming under them. This means a waiver of their right to institute action in the courts provided for in Rule 4, Sec. 2. (Gesmundo v. JRB Realty Corporation, 234 SCRA 153) d. PERMISSIVE agreement on venue: The parties may file their suit not only in the place agreed upon but also in the places fixed by law (specifically Rule 4 of the Rules of Court). (Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,767) e. Interpretation of permissive agreements on venue: Stipulations designating venues other than those assigned by Rule 4 of the Rules of Court should be interpreted as designed to make it more convenient for the parties to institute actions arising from or in relation to their agreements; that is to say, as simply adding to or expanding the venues indicated in said Rule 4. REASON: Convenience is the raison d'etre of the rules of venue. (Unimasters Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759,767) f. Illustrative cases of permissive agreements on venue: 1) "The parties agree to sue and be sued in the Courts of Manila." REASON: The parties merely consented to be sued in Manila. Qualifying or restrictive words which would indicate that Manila and Manila alone is the venue are totally absent therefrom. It is simply permissive. The parties solely agreed to add the courts of Manila as tribunals to which they may resort. They did not waive their right to pursue remedy in the courts specifically mentioned in Sec. 2 of Rule 4. (Polytrade Corporation v. Blanco, 30 SCRA 187) 2) "All legal actions arising out of this contract **may be brought in and submitted to the jurisdiction of the proper courts in the City of Manila." REASON: It would be defeating the rationale for venue for personal actions which is the convenience of the plaintiff and his witnesses as well as to promote the ends of justice by confining the situs of the action to Manila alone. In this case the residences or offices of all the parties, including the situs of the acts sought to be restrained or required to be done, are all within the territorial jurisdiction of Rizal. (Nicolas v. Reparations Commission, 64 SCRA 110) 3) The stipulation in the promissory note and the chattel mortgage specified Davao City as the venue. REASON: The absence of qualifying or restrictive words in the agreement which would indicate that the place named is the only venue agreed upon. (Lamis Ents. v. Lagamon, 108 SCRA 740) 4) "All actions arising out, or relating to this contract may be instituted in the Court of first Instance of the City of Naga." REASON: The parties did not agree to file their suits solely and exclusively with the Court of First Instance of Naga (now Regional Trial Court); they merely agreed to submit their disputes to the said court without

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waiving their right to seek recourse in the courts specifically indicated in Sec. 2, Rule 4 of the Rules of Court. (Capati v. Ocampo, 113 SCRA 794)

5) "The parties stipulate that the venue of the actions referred to in Section 12.01 shall be in the City of Manila." (Western Minolco v. Court of Appeals, 167 SCRA 592) 6) The sales invoice of a linotype machine stated that the proper venue should be Iloilo. REASON: It is obvious that a venue stipulation, in order to bind the parties, must have been intelligently and deliberately intended by them to exclude their case from the reglementary rules on venue. There are no restrictive or qualifying words in the agreement indicating that venue cannot be laid in any place other than that agreed upon by the parties. (Moles v. Intermediate Appellate Court, et al., 169 SCRA 777) g. Waiver of venue: That venue is improperly laid is among the grounds for a motion to dismiss. (Section 1[c], Rule 16, ROC). If not raised in a motion to dismiss it may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (Sec. 6, Ibid.) However, Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. (1st sentence, Sec. 1, Rule 9, ROC) Consequently, improper venue if not pleaded in a motion to dismiss or in the answer is deemed waived and may not be raised in proceedings after filing the answer. h. Rationale for waiver of improper venue if not seasonably objected to: A contrary rule would encourage the undesirable practice of parties submitting their case in one court in expectation of favorable judgment, but with the intent of attacking its jurisdiction/venue should the decision be unfavorable. (Vda. de Suan, et al., v. Cusi, et al., 125 SCRA 349)

RULE ON S UM MAR Y PR OC ED UR E
100. What civil cases are subject to summary procedure ? SUGGESTED ANSWER: a. Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered shall be governed by the summary procedure under Rule 70, Rules of Court. (Sec. 3, Rule 70, ROC) b. All other cases, except probate proceedings, falling within the jurisdiction of the four lower trial courts (Municipal Trial Court, Municipal Circuit Trial Court, Municipal Trial Courts in Cities, Metropolitan Trial Courts), where the total amount of the plaintiff's claim does not exceed Ten thousand pesos (P10,000.00), exclusive of interest and costs. (Sec. 2, 1 [A]. Rule on Summary Procedure) NOTES AND COMMENTS: a. Two instances where summary procedure is used: 1) Summary procedure under Rule 70 of the 1997 Rules of Civil Procedure; and 2) Summary procedure in other cases. b. Distinctions between summary procedure for forcible entry and unlawful detainer cases and other cases: 1) Forcible entry and unlawful detainer cases are governed by rule on summary procedure stated under Rule 70 of the Rules of Court WHILE those for other cases are governed by the Rule on Summary Procedure. 2) In forcible and unlawful detainer cases the amount of the demand is immaterial WHILE for other cases, except probate, the total amount of the plaintiff's claim does not exceed Ten thousand pesos (P10,000.00), exclusive of interest and costs. c. Purpose of forcible entry and unlawful detainer. Forcible entry and unlawful detainer cases are summary proceedings designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved. It does not admit of delay in the determination thereof. It is a time procedure designed to remedy the situation. (Tubiano v. Razo, G.R. No. 132598, July 13, 2000) 101. For failure of the tenant, Albert, to pay rentals, Jun, the court-appointed administrator of the estate of Nani Baure, decides to file an action against the former for the

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recovery of possession of the leased premises located in Davao City and for the payment of the accrued rentals in the total amount of P450,000.00. Is the case covered by the Rule on Summary Procedure ? (Bar: adapted) SUGGESTED ANSWER Yes. All actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered shall be governed by the summary procedure under Rule 70, Rules of Court. (Sec. 3, Rule 70, ROC) 102. What are the pleadings allowed under summary procedure ? SUGGESTED ANSWER: The only pleadings allowed to be filed are the a. complaint, b. answer ( answer to the counterclaim, answer to the cross-claim.) If the defendant has a cross-claim or a compulsory counterclaim, the same must be asserted in the answer, or be considered barred. (Sec. 2 [A], Rule on Summary Procedure arrangement and numbering supplied) NOTES AND COMMENTS: a. Prohibited pleadings under the summary procedure for both civil and criminal cases: 1) Motion to dismiss or to quash; 2) Motion for bill of particulars; 3) Motion for new trial, or for consideration, or 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 postponements; 10) Reply; 11) Third party complaints; 12) Intervention. (Sec. 15, Rule on Summary Procedure) The above pleadings are prohibited only within the level of the Municipal Trial Court. When the case tried under summary procedure is appealed to the Regional Trial Court the concept of prohibited pleadings does not find application. b. When motion prohibited. A motion for new trial, or for reconsideration of a judgment, or for reopening of trial is a prohibited pleading under Sec. 19 (c) of the 1991 Revised Rules on Summary Procedure only if it seeks the reconsideration of a judgment rendered by the court only after trial on the merits of the case. (Lucas v. Judge Fabros, etc., A.M. No. MTJ-991226, prom. January 31, 2000) c. When motion not prohibited. A motion for reconsideration is not a prohibited pleading under the 1991 Rules on Summary Procedure, if the order of dismissal was issued due to failure of a party to appear during the preliminary conference. (Ibid.) ***103. Distinguish failure to file an answer under the Rules onSummaryProcedure from failure to file an answer under the regular procedure. SUGGESTED ANSWER: Under the Rule on Summary Procedure, upon failure of to file an answer in a civil case, the court motu proprio or upon motion of the plaintiff, shall render a judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein except as to the amount of damages which the court may reduce in its discretion. (Sec. 5, Rule on Summary Procedure) WHILE under regular procedure If the defending party fails to answer within the time allowed therefor, the court, shall, upon motion of the claiming party with notice to the defending party, and upon proof of such failure, declare the defending party in default. Thereupon, 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. Such reception of evidence may be delegated to the clerk of court. (Sec. 3, Rule 9, ROC) A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (Sec. 3 [d], Rule 9, ROC)

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PLE ADIN GS PLE ADIN GS I N G ENE RAL F OR MAL RE QU IREM EN TS

104. How is a verification made ? SUGGESTED ANSWER: A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. (2nd par., Sec. 4, Rule 7, ROC as amended by A.M. No. 00-2-10SC, effective May 1, 2000) NOTES AND COMMENTS: a. General rule. Except when otherwise specifically required by law or by rule, pleadings need not be under oath, verified, or accompanied by affidavit. (1st par., Sec. 4, Rule 7, ROC) b. Exceptions or pleadings required to be verified: 1) Answer contesting the genuineness of an actionable document. (Sec. 8, Rule 8, ROC) 2) Petition for relief from judgment. (Sec. 3, Rule 38, Ibid.) 3) complaint with an application for preliminary injunction. (Sec. 4, Rule 58, Ibid.) 4) Complaint for replevin. (Sec. 2, Rule 60, Ibid.) 5) Petitions for certiorari, prohibition and mandamus. (Rule 65, Ibid.) 6) All pleadings under the Rule on Summary Procedure. The above is not complete as there are others. b. Purpose of verification. To secure an assurance that the allegations in the pleadings are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served. (Uy v. Land Bank of the Philippines, G.R. No. 136100, July 24, 2000) 105. Spouses Surla filed a complaint for damages against SantoTomas University Hospital predicated on an allegation that their son while confined at the said hospital had accidentally fallen from his incubator possibly causing serious harm on the child. The hospital filed its Answer with Compulsory Counterclaim asserting that the spouses Surla still owed the hospital P82,632.10 representing hospital bills for their child's confinement at the hospital and making a claim for moral and exemplary damages, plus attorney's fees, by reason of the supposed unfounded and malicious suit filed against it. The plaintiffs moved the court for the dismissal of the counterclaim for not having been accompanied by a certificate of non-forum shopping. Decide the motion. SUGGESTED ANSWER: The motion should be partially granted. The claim for P82,632.10 is a permissive counterclaim in an initiatory pleading which requires a certification of no forum shopping while the second for damages being in the nature of a compulsory counterclaim is not covered by the requirement. (Santo Tomas University Hospital v. Surla, et al., G.R. No. 129718, prom. August 17, 1998) NOTES AND COMMENTS: a. The certification is primarily intended to cover: 1) an initiatory pleading or 2) an incipient application of a party asserting a claim for relief (Santo Tomas University Hospital v. Surla, et al., G.R. No. 129718, prom. August 17, 1998), such as a permissive counterclaim b. Requirement for certification does not apply to compulsory counterclaims: The requirement has not been contemplated to include a claim which, by its very nature as being auxiliary to the proceedings in the suit and as deriving its substantive and jurisdictional support therefrom, can only be appropriately pleaded in the answer and not remain outstanding for independent resolution except by the court where the main case pends (Santo Tomas University

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Hospital v. Surla, et al., G.R. No. 129718, prom. August 17, 1998) as in compulsory counterclaims. c. Effect of failure to comply with the requirement. Failure to comply shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. (1st sentence, 2nd par., Sec. 5, Rule 7, ROC) d. Effect of submission of a false certification or non-compliance with the undertakings. This shall constitute indirect contempt of court, without preejudice to the corresponding administrative and criminal actions. (2nd sentence, 2nd par., Sec. 5, Rule 7, ROC) e. Effect of willful and deliberate forum shopping. This shall be a ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (last sentence, 2nd par., Sec. 5, Rule 7, ROC) f. All parties must sign. All petitioners must be signatories to the certification of no forum shopping unless one is authorized by other petitioners. Substantial compliance will not suffice in a matter involving strict observance by the rules. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. Petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction. ((Loquias, et al., v. Office of the Ombudsman, G.R. No. 139396, August 15, 2000) g. While rule must be strictly followed there may be substantial compliance. With respect to the contents of the certification which the pleader may prepare, the rule of substantial compliance may be availed of. While this section requires that it be strictly complied with, it merely underscores its mandatory nature in that it cannot be altogether dispensed with or its requirements completely disregarded but it does not thereby prevent substantial compliance on this aspect of its provision under justifiable circumstances. The rule was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible. Illustration: Consideration should have been taken of the fact that the parties were sued jointly, or as Mr. And Mrs. over a property in which they have a common interest. Such being the case, the signing of one of them in the certification substantially complies with the rule on certification of non-forum shopping. (Dar, et al., v. Hon. Alonzo-Legasto, etc., et al., G.R. No. 143016, August 30, 2000) h. Instance where there IS forum shopping. Forum-shopping concurs not only when a final judgment in one case will amount to res judicata in another, but also where the elements of litis pendentia are present.- Forum-shopping concurs not only when a final judgment in one case will amount to res judicata in another, but also where the elements of litis pendentia are present. The filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment amounts to forum-shopping. Only when the successive filing of suits as part of an appeal, or a special civil action, will there be no forum-shopping because the party no longer availed of different for a, but rather sought a review of a lower tribunals decision or order. The termination of the case before a lower court and its elevation for review to a higher court does not constitute forum-shopping for the latter is a recognized remedy under our procedural rules. (Quinsay v. Court of Appeals, et al., G.R. No. 127058, prom. August 31, 2000) i. Instances where there is NO forum shopping. 1) The two cases, one for the annulment of deeds of sale and the other for ejectment; although concerning the same property, are distinct litigations, neither involving exactly the same parties nor identical issues. 2) There is no identity between a petition for probate of will and petition for issuance of letters testamentary. The first, is solely for the purpose of authenticating a will and after the allowance of the will, the proceedings are terminated. The second, is for the purpose of securing authority from the court to administer the estate and put into effect the will of the testater. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devices to the persons named in the will. (Maloles II v. Philipps, G.R. No. 129505 and Maloles I v. Court of Appeals, et al., G.R. No. 133359, prom. January 21, 2000)

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3) No forum shopping where the five actions filed by the petitioner were for quieting of title based on separate certificates of title. Hence, the subject matters involved are different in each case. As such, the cases alleged different causes of action. Corollarily, a judgment in any case will not affect the issue in the other cases inasmuch as those portion to different lands covered by different certificates of title. (Valisno v. Ayala) 4) No forum shopping between petition before the Court of Appeals where the issue is to determine entitlement to the benefits and protection under the CARL, and a case before the RTC for injunction to stop anyone from using force and intimidation to eject the lawful possessors of the same property. (Greenfield Realty Corporation and Data Processing Services v. Cardoma, et al., G.R. No. 129246, prom., January 25, 2000)

MA NN ER OF M AK IN G ALLE GA TI ON S I N PLEA DIN GS

***106. What is the effect of splitting a single cause of action ? SUGGESTED ANSWER: a. 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. (Sec. 4, Rule 2, ROC) b. Within the time for but before filing the answer to the complaint of pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: 1) That there is another action pending between the same parties for the same cause; and 2) That the cause of action is barred by a prior judgment. (pars. d and f, Sec. 1, Rule 16, ROC) NOTES AND COMMENTS: a. Splitting a single cause of action defined. Dividing a single or indivisible cause of action into several parts or claims or bringing several actions therein. The singleness of a cause of action is determined by the number of delicts or wrongs committed by the defendant. Where there is only one delict or wrong, there is but a single cause of action, regardless of the number of rights that may have been violated. b. A party may not institute more than one suit for a single cause of action. (Sec. 3, Rule 2, ROC) Reason for the rule: 1) To prevent repeated litigation between the same parties in regard to the same subject of controversy; 2) To protect the defendant from unnecessary vexation; and 3) To avoid the costs incident to numerous suits. (De Luzuriaga, Sr. v. Adil, et al. 136 SCRA 283) c. Instance where the cause of action is divisible: 1) Contracts to pay money on installment is divisible. Each default in payment of an installment may be the subject of an independent action provided it is brought before the next installment is due. Each action should include every installment due at the time the suit is brought. Illustration of contract of pay money which is a divisble cause of action. A contract to pay in three installments on or before the periods without acceleration clause is shown below: June 15, 2001 P 50,000.00 July 15, 2001 P 50,000.00 August 15, 2001 P 50,000.00 Upon failure to receive payment on June 15, 2001, the creditor may file suit for P50,000.00. Should the June and July installments be not paid, then the creditor ought to file suit for the total amount of P100,000.00. If the August installment was not paid while the suit for the collection of the June and July installments is still pending, then the creditor may file a separate suit for the March installment. There is no splitting a single cause of action because when the suit was filed for the June and July installments, the August installments was not yet due and demandable.

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b. Instance of a cause of action that is not divisible. Recovery of personal property with damages is indivisible. If suit is brought for possession only, a subsequent action cannot be maintained to recover damages resulting from the unlawful detainer. There is only one wrong committed, the unlawful detainer which resulted not only the right to recover the property but also damages. c. When divisible and when not divisible. Contract to pay interest may or may not be separate from payment of principal. Suit may be brought separately for interest due prior to the time the principal becomes due. When the interest has not yet been paid at the time the principal becomes due, then unpaid interests already due becomes merged with the principal into a single cause of action. 107. On February 15, 2001, Leon filed with the Regional Trial Court against Sharon an action to quiet title, annulment of titles and deeds, declaration of sole heirship and/or ownership with damages involving a parcel of land registered in Sharon's name. Later, on February 19, 2001, Leon filed with the Municipal Trial Court an action for forcible entry with damages against Sharon involving the same property subject of the suit in the Regional Trial Court. Sharon now raises in the answer filed in the ejectment suit the defense of splitting a single cause of action. Rule on the defense. SUGGESTED ANSWER: The defense is impressed with merit. In the first case the determination of ownership is at issue. While it could be seen that the forcible entry case arose out of conflicting claims of ownership over the land; the issue of ownership is indispensably involved. This is evident, because in the second complaint for forcible entry, Leon anchors his claim for rightful possession his alleged ownership over the subject property. Leon has thus brought two separate suits for a single cause of action. The result therefore is that the filing of the first may be pleaded in abatement of the second suit. the forcible entry case should therefore be dismissed. (De Luzuriaga, Sr. v. Adil., et al., 136SCRA 279) 108. What are the conditions for joinder of causes of action ? SUGGESTED ANSWER: A party may in one pleading assert, in the alternative or otherwise, as many causes of actions as he may have against an opposing party, subject to the following conditions: a. The party joining the causes of action shall comply with the rules on joinder of parties. b. The joinder shall not include special civil actions or actions governed by special rules. c. Where the causes of action are between the same parties but pertain to different venue or jurisdiction, the joinder may be allowed in the Regional Trial Court, provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein. d. Where the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec. 5, Rule 2, ROC) NOTES AND COMMENTS: a. Joinder of causes of action defined. The union of two or more civil causes of action, each of which could be made the basis of a separate suit, in the same complaint, declaration or petition. A plaintiff may under certain circumstances join several distinct demands, controversies or rights of action in one declaration, complaint or petition. (Republic v. Hernandez, G.R. No. 117209, prom. February 9, 1996) b. Objective or purpose of the rule on joinder of causes of action: 1) To avoid multiplicity of suits where the same parties and subject matter are to be dealt with by effecting in one action a complete determination of all matters in controversy and litigation between the parties involving one subject matter, and 2) To expedite the disposition of litigation at a minimum cost. (Republic v. Hernandez, et al., G.R. No. 117209, prom. February 9, 1996) c. Rule on joinder of causes of action merely permissive and not compulsory: 1) The use of the word may in Sec. 5, Rule 2, ROC. 2) There is no positive provision of law or any rule of jurisprudence which compels a party to join all his causes of action and bring them at one and the same time.

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The concept of joinder of parties may or may not be compulsory depending on the party who is to be joined. d. Compulsory counterclaim distinguished from joinder of causes of action: There are two pleadings in compulsory counterclaims (the complaint and the compulsory counterclaim), WHILE there is only one pleading involved in joinder of causes of action under Sec. 5, Rule 2, ROC. ***109. Does the rule on joinder of causes of action include special civil actions ? Explain briefly. SUGGESTED ANSWER: No. There is no relation between an ordinary action and a special civil action, nor are they of the same nature or character, much less do they present any common question of fact or law, which cojointly could warrant their joinder. The two actions do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under the Rules. NOTES AND COMMENTS: a. Purpose of joinder of causes of action. To encourage joinder of actions which could reasonably be said to involve kindred rights and wrongs and the dominant idea is to permit joinder of causes of action, legal or equitable, where there is some substantial unity between them. While the rule allows a plaintiff to join many separate claims as he may have there should nevertheless be some unity in the problem presented and a common question of law and fact involved, subject always to the restriction thereon regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not authorized. (Republic v. Hernandez, G.R. No. 117209, prom. February 9, 1996 underlining supplied) 110. Is misjoinder of causes of action a ground for dismissal ? SUGGESTED ANSWER: A misjoined cause of action may, on motion of a party or on initiative of the court, be severed and proceeded with separately. (2nd sentence, Sec. 6, Rule 2, ROC)

FILING AND SE RVI CE OF PLE ADI NG S, JUD GME NT S AN D OTHE R PAP ERS (IN CL UDIN G MO TI ON S)
Service of notice when a party is represented by counsel should be made upon counsel, and not upon the party. Purpose: To maintain a uniform procedure calculated to place in competent hands the prosecution of a partys case. (Mancenido, etc. et al., v. Court of Appeals, et al., G.R. No. 118605, prom. April 12, 2000) 111. An answer was filed but it was served by mail despite the fact that the offices of the two lawyers were only 200 meters apart from one another. The post office however is more than two (2) kilometers away from the office of the counsel for the defendant. No explanation was given why service by mail was resorted to. Should a motion to strike be granted ? SUGGESTED ANSWER: Yes. The Rules mandate that Whenever practicable the service and filing of pleadings and other papers shall be done personally (11, Rule 13, ROC). Use of the word "shall" indicates that personal service is mandatory in character, if no explanation was given. (Solar Entertainment, Inc. v. Hon. Ricafort, et al., G.R. No. 132007, prom. August 5, 1998) NOTES AND COMMENTS: a. Instances when no personal service is required but always with explanations: Where personal service is not practicable as: 1) Where the adverse party or opposing counsel to be served with a pleading seldom reports to office and no employee is regularly present to receive pleadings; 2) Where service is done on the last day of the reglementary period and the office of the adverse party or opposing counsel to be served is closed, for whatever reason. . (Solar Entertainment, Inc. v. Hon. Ricafort, et al., G.R. No. 132007, prom. August 5, 1998)

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112. The adverse decision of the Court of Appeals was sent to the defendant appellee's counsel. The counsel did not receive the same, it was returned with the notation "Unclaimed Return to Sender " stamped on the envelope containing the decision. A certification was then issued in the following tenor: "This is to certify that according to the record(s) of this Office Registered Letter No.7115 (with Delivery No, 30175) was sent by (the) Court of Appeals, Manila on June 15, 1995 addressed to Atty. Anacleto S. Magno of 208 Associated Bank Bldg., Ermita, Manila was returned to sender as unclaimed mail on July 4, 1995 after the lapse of reglementary period provided for under postal regulations following the issuance of notices on the dates hereunder indicated (underscoring supplied): First Notice- June 15, 1995 Third Notice -June 21, 1995 Second Notice - June 19, 1995." Was the decision duly served upon counsel ? SUGGESTED ANSWER: No. It was not enough for the Postmaster to have certified that the notices were issued because this is just a prelude to service by registered mail. And definitely, it would not be in consonance with the demands of due process and equity to automatically conclude that from the word "issued" alone, the notice was in fact received by the addressee or somebody acting on his behalf and on the same date of the notice. The postmaster should have included in his certification the manner, date and the recipient of the delivery. (Santos v. Court of Appeals, et al., G.R. No. 128061, prom. September 3, 1998)

MO TI ON S IN GE NER AL
113. Are there any exceptions to the rule that a motion without a notice of hearing is a mere scrap of paper ? SUGGESTED ANSWER: In Tan v. Court of Appeals, et al., G.R. No. 130314, prom. September 22, 1998 it was held that liberal construction of this rule has been allowed by the Supreme Court in the following cases: a. Where a rigid application will result in a manifest failure or miscarriage of justice (Goldloop Properties, Inc. v. Court of Appeals, 212 SCRA 498, 504-505), especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein (Balangcad v. Justices of the Court of Appeals, February 12, 1992); b. Where the interest of substantial justice will be served (Tamargo v. CA, 209 SCRA 518, 522); c. Where the resolution of the motion is addressed solely to the sound and judicious discretion of the court (Galvez v. Court of Appeals, 237 SCRA 685, 696-702); and d. Where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed (Galang v. Court of Appeals, 199 SCRA 683). NOTES AND COMMENTS: a. Requirement for notice. A motion that does not meet the notice requirements of Secs. 4 and 5 of Rule 15 of the Rules of Court is pro forma, and the trial court has no authority to act on it. The requisites laid down in the aforementioned provisions are categorical and mandatory, and the failure of the movants to comply with them renders their motions fatally defective. (Juan, et al., v. people, G.R. No. 132378, prom. January 18, 2000) b. Purpose of notice. To bring the party into court at the time of the motion, or at least to inform him that a motion is to be made, thereby enabling him to appear and contest the motion if he desires to do so. Prior notice enables the adverse party to appear for his own protection and be heard before an order is made. (Odono v. Judge Macaraeg, etc., et al., etc., A..M. No. RTJ-001542, prom. March 16, 2000 citing Far Eastern Surety & Insurance Company, Inc. v. Vda. de Hernandez (67 SCRA 256)

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c. Instances where the Supreme Court disregarded failure of notice: 1) Failure not fatal as adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard. The demands of substantial justice were satisfied by the actual receipt of said motion under those conditions. (Republic of the Philippines v. Court of Appeals, et al., G.R. No. 130118, prom. July 9, 1998) 2) It was grave abuse of discretion for the trial court to deny the motion for postponement of the private prosecutor even though no copy of the motion had been served on the accused, in view of the fact that the prosecution was not available on the date of the trial. No substantial right of the accused was impaired. On the other hand, it was important that the case be decided on the merits rather than be dismissed on a technicality. The accused should realize that postponements are part and parcel of our legal system. (Republic, supra) 3) In Azajar v. Court of Appeals, 145 SCRA 333 cited in Republic supra, the defendant filed a motion to dismiss without notice of hearing. As a result, the period for filing his answer expired and he was declared in default. It was held that since the defendant's reason for his failure to set his motion for hearing was not "utterly without plausibility," and that he has meritorious defenses, the judgment by default was set aside. 4) A motion for reconsideration did not have attached to it proof that a copy thereof had been served on the adverse party. There was showing that a copy of the motion was actually sent to the opposing party's counsel, a day after the motion had been filed. The Supreme Court considered the subsequent service of the motion to be a substantial compliance with the Rules. (Republic of the Philippines v. Court of Appeals, et al., G.R. No. 130118, prom. July 9, 1998) 5) Where, despite the absence of notice, the trial court heard the adverse party and considered this arguments. This shows that the purpose of a notice of hearing is in order to afford the adverse party time to study and answer the arguments in said motion before its resolution by the court. d. Requirement of notice of hearing equally applies to a motion for reconsidration.The rules on procedure explicitly require that notice of a motion shall be served by the applicant to all parties concerned at least three days before the hearing thereof together with a copy of the motion, and of any affidavits and other papers accompanying it, and that the notice shall be directed to the parties concerned, stating the time and place for hearing the motion. This requirement of notice of hearing equally applies to a motion for reconsideration. A pro forma motion for reconsideration does not suspend the running of the period to appeal. In the instant case, the failure of private respondents to comply with the procedural requirements was fatal to their right to appeal. (Philippine Commercial and Industrial Bank (PCIBank) v. CA, et al., G.R. No. 120739, July 20, 2000)

DE PO SITIO N BEF OR E A CTIO N

114. How may a person perpetuate testimony before filing of an action ? SUGGESTED ANSWER: A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the place of the residence of any expected adverse party. (Sec. 1, Rule 24, ROC)

DE PO SITIO NS AND DI SC OVERIES

115. What is the purpose of the different modes of discovery ? SUGGGESTED ANSWER: The discovery of every bit of information which may be useful in the preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those relevant facts themselves; and the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things. This would enable the parties to inform themselves, even before the trial, of all the facts relevant to the action, including those known only to the other litigants. Through this procedure, civil trials should not be carried on in the dark. (Security Bank Corporation v. Court of Appeals, et al., G.R. No. 135874, prom. January 25, 2000)

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NOTES AND COMMENTS: a. The different modes of discovery under the Rules of Court: 1) Deposition. The written testimony of a witness given in the course of a judicial proceeding, in advance of he trial or hearing, upon oral examination or in response to written interrogatories, and where an opportunity is given for crossexamination. 2) Interrogatories. These are the questions in writing served directly on the adverse party to be answered by him or by his officer. Its scope is as broad as the field of inquiry which a person interrogated is called upon to testify in an actual trial. 3) Production or inspection of documents or things. This mode of discovery is an exception to the constitutional guarantee of privacy of communication and correspondence. It allows the production or inspection of documents and other things but does not allow them to be distrained without the knowledge of their lawful owner or possessor. 4) Admission by adverse party. This may be made at any time after the pleadings are closed. This may be availed of by a party by serving upon the other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request, or of the truth of any relevant matters of fact set forth therein. b. How depositions may be used: 1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. b. The deposition of a party or any one who at the time of 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. c. The deposition of a witness, whether or not a party, may be used by any party for any purpose, if the court finds: 1) That the witness is dead; or 2) That the witness resides at a distance more than one hundred (100) kilometers from the place of the trial or hearing; 3) That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or 4) That the party offering the deposition has been unable to procure the attendance of his witnesses by subpoena; or 5) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and d. If only a part of a deposition is offered in evidence by a party; the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (Sec. 4, Rule 23, ROC) Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment.(Producers Bank of the Philippines v. Court of Appeals, et al., G.R. No. 110495, prom. January 29, 1998) Courts are given a wide latitude in granting motions for discovery in order to enable parties to prepare for trial or otherwise settle the controversy prior thereof. (Security Bank Corporation v. Court of Appeals, et al., G.R. No. 135874, prom. January 25, 2000) ***116. The spouses Uy filed an action for injunction and damages against Security Bank (SBC), Domingo and the Ex-officio Sheriff of Quezon City to enjoin the extrajudicial foreclosure over a parcel of land registered under the spouses name. The action sought the amendment of two deeds of Real Estate Mortgage between Jackivi and SBC. SBC and Domingo had a cross-claim against each other. Thereafter, the spouses Uy and Domingo had a cross-claim against each other. The spouses Uy and Domingo filed their separate motions for production, inspection and copying of documents relating to the mortgage. Domingo averred that the subject documents were material and important to the issues raised in the case in general, and as between defendant (Domingo) and defendant SBC in pareticular. On the other hand, the spouses Uy said the documents were necessary for a full determination of the issues raised in the suit.

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Rule on the motions. SUGGESTED ANSWER: Granted. A good cause for inspection of documents is to enable a party to intelligently prepare his defenses and to come up with a full determination of the issues. (Security Bank Corporation v. Court of Appeals, et al., G.R. No. 135874, prom. January 25, 2000)

FI LI NG O F THE ACTI ON
CO MME NC EME NT OF T HE A CTIO N
117. How is a civil action commenced ? SUGGESTED ANSWER: a. A civil action is commenced by the filing of the original complaint in court. b. If an additional defendant is impleaded in a later pleading, the action is 1) commenced with regard to him on the date of the filing of such later pleading, 2) irrespective of whether the motion for its admission, if necessary, 3) is denied in court. (Sec. 5, Rule 1, ROC arrangement and numbering supplied)

DO CKE T FE ES
***118. On March 7, 1983, Adrian filed a complaint with the RTC against Shell, Caltex, Mobil and Petrophil. No mention was made in the complaint of the amount of damags claimed but Adrian alleged that the conservative amount of the combined gross sales of his invention by the oil companies ius P934 million annually. At the November 13, 1984 hearing, Adrian estimated the yearly royalty due him to be P236 million. The oil companies filed a motion to dismiss upon discovery that Adrian paid only P252.00 filing fee based on his claim for attorneys fees in the sum of P200,000.00. the court denied themotion and ordered Adrian to pay additional docket fees in the sum of P945,000.00. Adrian filed a motion for reconsideration which was opposed by the oil companies. The trial court then ordered the plaintiff to pay the required additional docket fee after the termination of the case to be deducted from whatever judgment in damages awarded to the plaintiff. The matter was elevated to the Court of Appeals thence to the Supreme Court which ordered the case resumed upon payment of all the lawful fees or upon exemption from payment thereof uopn proper application to litigate as pauper. The plaintiff then filed an application to litigate as a pauper which was denied. He then filed an amended complaint. Subsequent amendments were made paying additional amounts for the filing fees in order to accommodate the plaintiffs finances ? Does the plaintiff have the right to amend his complaint to accommodate his finances for payment of the prescribed docket fees ? SUGGESTED ANSWER: Yes. Normally, the manner of payments made by the plaintiff of the docket fees in installments should be disallowed. However, equity demands that procedural rules be relaxed considering the peculiar circumstances availing in the case. It would be grossly unust if the plaintiffs claim against the oil companies, who have allegedly reaped the profits of his liftime work, would be dismissed for the sole reason that his fiances are not sufficint to allow him to file his claim. (de la Paz v. Court of Appeals, et al., G.r. No. 120150, prom. March 27, 2000) NOTES AND COMMENTS: a. General rule: The timely filing of corect docket fees is jurisdictional. However, that the pronouncements of the Supreme Court on the matter have always been influenced by the peculiar legal and equitable circumstances surrounding each case. The rule is not as simple and uncomplicated as Manchester makes it appear. There are other determining circumstances, equally important. The timely filing of correct docket fees is jurisdictional, but considerations of law and equity come into the picture. (Yuchengco v. Republic, etc., et al., G.R. No. 131127, prom. June 8, 2000)

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b. Manchester doctrine and subsequent doctrines. Manchester Development, et al., ruled that the court acquires jurisdiction over any case only upon payment of the prescribed docketing fees. The allegation in the body of the complaint of damages suffered in the amount of P78 million, and the omission of a specific prayer for that amount was intended for no other purpose than to evade the payment of correct filing fees if not to mislead the docket clerk in the assessment of the correct fee. The ruling was intended to put a stop to such an irregularity. Sun Insurance Office, Ltd., et al., v. Asuncion, et al., 170 SRCA 274 modified the Manchester doctrine by holding that a more liberal interpretation of the rules is called for considering that, unlike Manchester, there was demonstrated willingness to abide by the rules by paying the additional docket fees as required. Thus, where the filing of the initiatory pleading is not acompanied by payment of the docketing fee, the court may allow payment of such fee within a reasonable time but in no case beyond the prescriptive or reglementary period. c. Two situations that may arise. One is where the complaint or similar pleading sets out a claim purely for money or damages and there is no precise statement of the amounts being claimed. In this event, the rule is that the pleading will not be accepted nor admitted, or shall otherwise be expunged from the record. In other words, the complaint or pleading may be dismissed or the claims as to which the amounts are unspecified may be expunged, although as aforestated the court may, on motion, permit amendment of the complaint and payment of the fees povided the claim has not in the meantime become time-barred. The other is where the pleading does specify the amount of every claim, but the fees paid are insufficient; and here again, the rule now is that the court may allow a reasonable time for the payment of the prescribed fees, or the balance thereof, and upon such payment, the defect is cured and the court may properly take cognizance of the action, unless in the meantime prescription has set in and consequently barred the right of action. d. Where the action involves real property and a related claim for damages as well, the legal fees shall be assessed on the basis of both (a) the value of the property and (b) the total amount of related damages sought. The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the paymenbt of the requisite fee, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of the fees within such reasonable time as the court may grant, unless, of course, prescription has set in the meantime. But where x x x the fees prescribed for an action involving real property have been paid, but the amounts of certain of the related damages (actual, moral and nominal) being demanded are unspecified, the action may not be dismissed. (Yuchengco v. Republic, etc., et al., G.R. No. 131127, prom. June 8, 2000) e. Manchester doctrine not applicable to election cases. (Pahilan v. Tabala, et al., 230 SCRA 205, 216-217 cited in Enojas, Jr., v. judge Gacott, Jr., etc., A.M. No. RTJ-99-1513, prom. January 19, 2000)

RAFFL E A ND A SSI GN ME NT OF CASE S

AFTE R FIL IN G OF THE A CT IO N A ND SER VI CE OF SUM MO NS

SU MM ON S
119. What is the purpose of service of summons ? SUGGESTED ANSWER: the purpose of service of summons: a. For jurisdictional purposes which is acquired by courts over the person of a partydefendant by virtue of the service of summons in the manner required by law. (Pabon, et al., v. National Labor Relations Commission, et al., G.R. No. 120457, prom. September 24, 1998) b. To give notice to the defendant or respondent that an action has been commenced against her. She is thus, put on guard as to the demands of the plaintiff or petitioner. (Paramount Insurance Corporation v. Luna, et al., 148 SCRA 569) NOTES AND COMMENTS:

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a. Summons, defined. Summons is the means by which the defendant in a case is notifid of the existence of a case against him and, thereby, the court is confrred jurisdiction over the person of the defendant. (Millenium Industrial Commercial corporation v. Tan, G.R. no. 131724, prom. February 28, 2000) b. Exception or instance where service of summons is not for the purpose of obtaining jurisdiction: Extraterritorial service of summons to non-resident defendant where the action affects the personal status of the plaintiff, or the subject of the defendant's property in the Philippines. (Perkins v. Dizon, 69 Phil. 186) The purpose is to comply with due process.

MET HO DS O F SE RVI CE O F SU MM ON S
METHODS OF SERVICE OF SUMMONS. a. Personal b. Substituted c. Service by publication 1) Resident defendant 2) Non-resident defendant 120. How is personal service of summons effected ? SUGGESTED ANSWER: Whenver practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (Sec. 6, rule 14, ROC) ***121. How is substituted service of summons made ? SUGGESTED ANSWER: If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof. (Sec. 7, Rule 14, ROC arrangment supplied) NOTES AND COMMENTS: a. Modes of service strictly followed in order that the court may acquire jurisdiction over the person. Thus, it is only when the defendant cannot be served personally withina reasonable time that substituted service may be allowed. Impossibility of prompt, personal service should be shown by stating in the proof of service that efforts were made to find the defenant personally and that said efforts failed, hence the resort to substituted service. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective. For substituted service to be valid, the summons should be left in the defendants residenc with some person of suitable age and discretion of suitable age and discretion then residing therein. Thus, there was invalid service if made with the defendants son-in-law who was not living in the same house as his parents-in-law, although living in the same compound. (Sps. Miranda v. Court of Appeals, etc., et al., G.R. No. 114243, prom. February 23, 2000) The statement of impossibility of service should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service. Substituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstancs authorized by statute. Thus, the statutory requirements of substituted service must be followed strictly, faithfully, and any substituted service other than that authorized by the statute is considered ineffective. There is a presumption that a sheriff has regularly performed his official fnctions in utilizing substituted service of summons. To overcome the presumption arising from the sheriffs certificate, the evidence must be clear and convincing. (Umandap v.Judge Sabio, Jr., et al., G.R. No. 140244, prom. August 29, 2000) ***122. How is service of summons made upon a domestic private entity ? SUGGESTED ANSWER: When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personalituy, service may be made on the a. president,

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b. managing partner, c. general manager, d. corporate secretary, e. treasurer, or f. in-house counsel. (Sec. 11, Rule 14, ROC numbering and arrangement supplied) NOTES AND COMMENTS: The above has restricted the persons who are considered as representatives upon whom service of summons upon a corporation is to be made. The author believes that the rule on substantial compliance of serving summons which allows service of summons other than those mentioned under the previous Sec. 13, Rule 14 (now amended as Sec. 11, Rule 14), referred to in G & G Trading, Porac Trucking, Inc., and Millenium Industrial commercial Corporation v. Tan., G.R. No. 131724, prom. February 28, 2000, all having been decided prior to the 1997 Rules, is not applicable anymore. This is so, because the 1997 Rules removed the words manager, secretary, cahsier, agent from the rule and replaced it with more specific persons like the managing partner, general manager, corporate secretary, treasurer, or in-house counsel. ***123. How is service of summons effected on a defendant Philippine resdient temporarily abroad ? SUGGESTED ANSWER: a. Personal service outside the Philippines with leave of court; b. Publication, with leave of court, in a newspaper of general circulation in such places and for such time as the court may order in which case: 1) copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, and 2) The order specifies a reasonable time, not less than sixty (60) days after notice within which the defendant must answer. c. In any other manner the court may deem sufficient. (Sec. 15 in relation to Sec. 16, both of Rule 14, ROC) The above methods are also known as extraterritorial service of summons may be resorted to for actions in rem or quasi in rem with leave of court. NOTES AND COMMENTS: ***a. Instances when the above methods of extraterritorial service may be resorted to with leave of court: 1) When the defendant does not reside and is not found in the Philippines, and a) The action affects the personal status of the plaintiff or b) The action relates to, or the subject of which is property within the Philippines, is one in which the defendant has or claims a lien or interest, actual or contingent, or c) The relief demanded in such action consists, wholly or in part,. In excluding defend ant from any interest therein, or c) The property of the non-resident defendant has been attached within the Philippines. (Sec. 15, Rule 14, ROC) 2) The above methods are resorted to where the action is in rem or quasi in rem. 3) What gives the court jurisdiction is not jurisdiction over the person but jurisdiction over the res, i.e. a) Personal status of the plaintiff (not the defendant) who is domiciled in the Philippines; b) The property litigated; or c) The property attached. (Valmonte, et al., v. Court of Appeals, et al., G.R. No. 108538, prom. January 22, 1996) b. Illustration of applicability and non-applicability of extraterritorial service under Sec. 15, Rule 14, Rules of Court: Instances where there was NO valid service: 1) No valid service in an action for partitioning and accounting under Rule 69 of the Rules of Court (which is an action quasi in rem), if made upon the husband, who is residing in the Philippines, of a non-resident defendant not found in the Philippines. Leave of court must be obtained and methods in Sc. 15, Rule 14, ROC must be followed.

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The service upon the husband cannot be justified under the last phrase of Sec. 15, Rule 14, ROC, which provides, "in any manner the court may deem sufficient," because: a) This mode of service like the first two (personal and publication), must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides; b) No leave of court was obtained in the form of a motion in writing, supported by affidavit of the plaintiff or some other person in his behalf and setting forth the grounds or the application. (Valmonte, et al., v. Court of Appeals, et al., G.R. No. 108538, prom. January 22, 1996) 2) Although the Supreme Court considered publication in the Philippines of the summons (against the contention that it should have been made in the foreign state where the defendant was residing) sufficient, nonetheless the service was considered insufficient because no copy of the summons was sent to the last known correct address in the Philippines. (Sahagun v. Court of Appeals, 198 SCRA 44) b. Instances where there WAS valid service: 1) Service of summons on the husband was considered valid because summons was served upon the defendant's husband in their conjugal home. The wife was temporarily absent because she was on vacation. (De Leon v. Hontanosa, 67 SCRA 458, 462-463) 2) Service on the wife of a nonresident defendant was found to be sufficient because the defendant had appointed his wife as his attorney-in-fact. (Gemperle v. Schenker, 125 Phil. 458) ***124. Duraproof Services sued for damages various parties including Banco do Brazil, a non-resident foreign bank which was served summons through the ambassador of Brazil to the Philippines as well as through publication. For failure of Banco do Brazil to file its answer, it was declared in default and judgment rendered against it awarding damages in favor of the plaintiff. Did the court obtain jurisdiction over Banco do Brazil ? Why ? SUGGESTED ANSWER: No. The action is one that is in personam because the plaintiff sought to recover damages for the alleged commission of an injury to the person or property of the plaintiff. Since the action is one in personam, personal or, if not possible, substituted service of summons on the defendant, and not extraterritorial service, in necessary to confer jurisdiction upon the person of Banco do Brazil. (Banco do Brasil v. Court of Appeals, et al., G.r. Nos. 121576-78, prom. June 16, 2000) NOTES AND COMMENTS: a. Extraterritorial service of summons applicable only in actions in rem or quasi in rem. Extraterritorial service of summons apply only where the action is in rem, an action against the thing itself instead of against the person, or in an action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Any relief granted in in rem or quasi in rem actions must be confined to the res, and the court cannot lawfully render a personal judgmnt against the defendant. (Banco do Brasil v. Court of Appeals, et al., G.R. Nos. 121576-78, prom. June 16, 2000)

PLAI NTIFF' s NO TIC ES, M OTIO NS , ET C.

a. Notice of lis pendens b. Notice to withdraw or dismiss the complaint. c. Motion to amend or supplement the complaint.

NOTICE OF LIS PENDENS

***125. Investco sold to Solid Homes, Inc., a parcel of land on installments. As a result of the alleged failure of Solid Homes, Inc., to pay because its postdated checks bounced,

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Investco sued Solid Homes. In its answer Solid Homes alleged the purchase price was not yet due, and in fact exceeded the installment payments. It prayed for dismissal of the complaint and interposed a counterclaim for the refund of excess payments, moral damages and attorneys fees. It then filed with with the Register of Deeds a notice of lis pendens which was entered in the primary Entry Book, but not on Investcos titles. The trial court rendered judgment in favor of Invetco. Subsequently, Investco sold the property to AFPMBAI, who upon verification from the Register of Deeds found that there were no liens on the title. The Register of Deeds issued clean TCTs in the name of AFPMBAI which contained no annotation of any lien, encumbrance, or adverse claim by a third party. Solid Homes, after discovery of the sale to AFPMBAI filed suit against the Register of Deeds, Investco and AFPMBAI for annotation of lis pendens and damages. Will the suit prosper ? SUGGESTED ANSWER: No. A notice of lis pendens is not and cannot be sought as a principal action for relief. The notice is but an incident to an action, an extra-judicial one to be sure. It does not affect the meris thereof. It is intended merely to constructively advise, or warn, all people who deal with the propert that they so deal with it at their own risk, and whatever rights they may acquire in the property in any voluntnary transaction are subject to the results of the action, and may well be inferior and subordinate to those which ma be finally determined and laid own therein. The notice of lis pendens that real property is involved in an action is ordinarily recorded without the intervention of the court where the action is pending. As a settled rule, notice of lis pendens may be annotated only when there is an action or proceeding in court which affecs itle to or possession of real property. In this case, the action was for collection of unpaid installments on the purchase of subject property and Solid Homes claim for damages. In such case, the annotation of a notice of lis pendens was not proper as the action was in personam. (AFP Mutual Benefit Associaition, Inc. v. Court of Appeals, et al., G.R. No. 104769; Solid Homes, Inc. v. Investco, Inc., G.R. No. 135016, prom. March 3, 2000) NOTES AND COMMENTS: a. Nature of notice of lis pendens. The doctrine of lis pendens is founded upon reasons of public policy and necessity. It is an announcement to the whole world that a particular real property is in litigation. (Yared, et al., v. Hon. Ilarde, etc., et al., G.R. No. 1114732, prom. August 1, 2000) b. Purpose of notice of lis pendens. 1) To protect the rights of the party causing the registration thereof, and 2) to advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation. One who deals with property subject of a notice of lis pendens cannot acquire better rights than those of his predecessors-in-interest. (Viewmaster Construction Corporation v. Hon. Maulit, etc., et al., G.R. No. 136283, prom. February 29, 2000) The purpose of the notice is to make known to the whole world that properties in litigation are still within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation. It serves as a warning that one who acquires an interest in said property does so at his own risk, or that he gambles on the result of the litigation over the property. (Yared, et al., v. Hon. Ilarde, etc., et al., G.R. No. 1114732, prom. August 1, 2000) c. Instances where notice of lis pendens is proper. Rule 13, Section 14 of the 1997 rules of Civil Procedure and Section 76 of Presidential Decree No. 1529, otherwise known as the Property Registration Decree provide the statutory basis for a notice of lis pendens. From these provisions it is clear that such a notice is proper only in actions to: 1) Recover possession of real property 2) Quiet title thereto; 3) Remove clouds thereon; 4) Partition property; and 5) Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereof or the building thereon.

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Thus, all the applicant has to do is to assert a claim of ownership to put the property under the coverage of the rule. It is not necessary for her to prove owneership or interest over the property sought to be affected by lis pendens. (Yared, et al., v. Hon. Ilarde, etc., et al., G.R. No. 1114732, prom. August 1, 2000) It is proper where a claim is made of an interest or right in the property specifically subject of the alleged simulated sale, where the object of the complaint is not only to enforce a lien or encumbrance against the subject property but to enforce a valid claim. The notice is specific where it refers to a portion covered by the TCTs covering 23,609 sq. m. of the subject real property. (Albnerto v. CA, et al., G.R. No. 119088, prom. June 30, 2000) d. Absence of technical description not ground to reject application for lis pendens. Absence of the propertys technical description in either the notice of lis pendens or the complaint is not a sufficient ground for rejecting the application, if referral is made in the notice of the TCT No., and a copy of the TCT is attached to and made an integral part of the two documents. Thus, the notice of lis pendens submitted for registration, taken as a whole, leaves no doubt as to the identity of the property, the technical description of which appears on the attachd TCT. The main purpose of the requirement that the notice shall contain a technical description of the property is to ensure that the same can be distinguished and readily identified. (Viewmaster Construction Corporation v. Hon. Maulit, etc., et al., G.R. No. 136283, prom. February 29, 2000) e. Remedy where Register of Deeds denies registration. Under P.D. No. 1529, the Property Registration Decree of 1978, the Register of Deeds may deny registration of the notice of lis pendens which denial may be appealed by the applicant en consulta (Section 10, paragraph 2) to the Commissioner of Land Registration. (AFP Mutual Benefit Associaition, Inc. v. Court of Appeals, et al., G.R. No. 104769; Solid Homes, Inc. v. Investco, Inc., G.R. No. 135016, prom. March 3, 2000)

NOTICE TO DISMISS OR WITHDRAW COMPLAINT.

126. May the plaintiff dismiss his complaint by mere notice to the court ? SUGGESTED ANSWER: Yes. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. (1st two sentences, Sec. 1, Rule 17, ROC) NOTES AND COMMENTS: a. General rule: The dismissal by mere notice is without prejudice. (last sentence, Sec. 1, Rule 17, ROC) b. Exceptions or when dismissal with prejudice: 1) The order states that the dismissal is with prejudice. (last sentence, Sec. 1, Rule 17, ROC) 2) Application of the Two Dismissal Rule: A notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (Ibid.)

MOTION TO AMEND OR SUPPLEMENT

***127. What is the effect of amended pleadings ? SUGGESTED ANSWER: a. An amended pleading supersedes the pleading that it amends. b. However, admissions in superseded pleadings may be received in evidence against the pleader. c. Claims or defenses alleged in the superseded pleading not incorporated in the amended pleading shall be deemed waived. (Sec. 8, Rule 10, ROC arrangement and numbering supplied) NOTES AND COMMENTS: ***a. When amendment is a matter of right: 1) A party may amend his pleading once as a matter of right before a responsive pleading is served.

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2) In case of a reply, at anytime within ten (10) days after it is served. (Sec. 2, Rule 10, ROC) 3) Formal amendments at any stage of the proceedings provided no prejudice is caused to the adverse party. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiatiove or on motion, provided no prejudice is caused thereby to the adverse party. (Sec. 4, Rule 10, ROC) b. Substantial amendments may be made upon leave of court if not intended for delay. (S)ubsantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and afrter notice to the adverse party, with an opportnity to be heard. (Sec. 3, Rule 10, ROC) Courts are not precluded from allowing amendments even if the same will substantially change the cause of action or defense provided such amendments do not result in a substantial injury to the adverse party. The Supreme Court has ruled that amendments to pleadings are favored and should be liberally construed in the furtherance of justice. (Marini-Gonzales v. Lood, et al., 148 SCRA 458) ***c. When amendments not allowed: 1) The amendment is for the purpose of delay. (Sec. 3, Rule 10, ROC; Paman v. Diaz, 116 SCRA 125) 2) Formal amendments which cause prejudice to the adverse party. (Sec. 4, Rule 10, ROC) 3) That the cause of action or defense or theory of the case is, substantially changed (Torres v. Tomacruz, 49 Phil. 913), but this is not an inflexible limitation because pleadings may be amended or supplemented even if there are substantial changes as long as the purpose of the amendment or supplementation is not for delay. 4) That the amendment shall result in alteration of a final judgment on a substantial matter. (Ocampo v. Manalac, 92 Phil. 860) 5) That the amendment is for the purpose of making the complaint confer jurisdiction upon the court where none existed before. (Rosario v. Carandang, 96 Phil. 845) 6) That the amendment is for the purpose of curing a premature or nonexisting cause of action. (Calabig v. Villanueva, 135 SCRA 307) d. Leave of court addressed to courts sound discretion. The granting of leave to file amended pleading is a matter particularly addressed to the sound discretion of the trial court and that discretion is broad, subject only to the limitations that the amendments should not substantially change the cause of action or alter the theory of the case or that it was made to delay the action. Once exercised, that discretion will not be disturbed on appeal, except in case of abuse thereof. The courts should be liberal in allowing amendments to pleadings to avoid multiplicity of suits and in order that the real controversies between the parties are pesented, their rights determined and the case decided on the merits without unnecessary delay. This liberality is greatest in the early stages of a lawsuit, especially where the amendment to the complaint was made before the trial of the case thereby giving the defendant all the time allowed by law to answer and to prepare for trial. As to the wisdom or soundness of the trial courts order dismissing the affirmative defense of prescription, this involves a matter of judgment which is not properly reviewable by a petition for certiorari, which is intended to correct defects of jurisdiction solely and not to correct errors of procedure or matters in the trial courts findings or conclusion. (Sps. Refugia v. Hon. Alejo, etc., et al., G.r. No. 138674, prom. June 22, 2000) ***e. Filing of amended pleading does not retroact to date of filing the original because the original is superseded by the amended pleadings. Hence, the statute of limitations runs until the submission of the amendment. (Republic of the Philippines, etc., v. Sandiganbayan, et al., G.R. No. 119292, prom. July 31, 1998) f. Purpose of supplemental pleading. To supply deficiencies in aid of the original pleadding and not to dispense with or substitute the latter. It is not like an amended pleading which is a substitute for the original one. It does not supersede the original, but assumes that the

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original pleading is to stand. The issues joined under the original pleading remain as issues to be tried in the action. (Asset Privatization Trust v. Court of Appeals, et al., G.R. No. 81024, prom. February 3, 2000) g. Supplemental pleading retroacts. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after service of the original complaint. (Republic of the Philippines, etc., v. Sandiganbayan, et al., G.R. No. 119292, prom. July 31, 1998) However, such rule does not apply to a party who is impleaded for the first time in the amended complaint that was filed beyond the prescriptive period. (Ibid.) h. When cause of action substantially altered. In determining whether a different cause of action is introduced by amendments to the complaint, what must be ascertained is whether the defendants shall be required to answer for a liability or legal obligation wholly different from that stated in the original complaint. An amendment will not be considered as stating a new cause of action if the fact alleged in the amended complaint shows substantially the same wrong with respect to the same matter but is more fully and differently stated, or where averments which were implied are made express, or the subject of the controversy or the liabilty sought to be enforced remains the same. (Que v. Court of Appeals, et al., G.R. No. 135442, prom. August 31, 2000)

AFTE R SER VI CE O F SUMM ONS BE FO RE AN SWE R AN D ANS WER

PLAI NTIFF' s NO TIC ES, M OTIO NS , ET C.
a. b. c. d. Notice to withdraw or dismiss the complaint. Refer to previous discussion. Motion to amend or supplement the complaint. Refer to previous discussion. Opposition to the defendant's various motions. Motion to declare defendant in default.

MOTION TO DECLARE IN DEFAULT

128. What are the grounds for declaration of default ? SUGGESTED ANSWER: a. Failure of a defending party to answer within the time allowed. (Sec. 3, Rule 9,ROC) This includes failure to answer a complaint, counterclaim, cross-claim, third-party complaint, etc. b. Wilful failure to appear before an officer to make a deposition, after being served with a proper notice, or failure to serve answers after proper service of interrogatories. (Sec. 5, Rule 29, ROC) NOTES AND COMMENTS: ***a. Effects of declaration of default: 1) The court shall, upon motion of the claiming party with notice to the defending party, and upon proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. (1st par., Sec. 3, Rule 9, ROC) 2) The court may, in its discretion, require the claimant to submit evidence before rendering judgment. Such reception of evidence may be delegated to the clerk of court. (Ibid.) 3) A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (Sec. 3 [d], Rule 9, ROC) 4) A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (Sec. 3 [a], Rule 9, ROC) b. Nature and effects of a judgment of default. A judgment of default does not imply a waiver of rights Except that of being heard and presenting evidence in defendants favor. It does not imply admission by the defendant of the facts and causes of action of the plaintiff,

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because the codal section requires the latter to adduce evidence (NOTE: Reception of evidence is now discretionary under the 1997 Rules, 1st par., Sec. 3, Rule 9), in support of his allegations as an indispensable condition befoire final judgment could be given in his favor. Nor could it be interpreted as an admission by the defendant that the plaintiffs causes of action find support in the law or that the latter is entitled to the relief prayed for. This is especially true with respect to a defendant who had filed his answer but had been subsequently declared in default for failing to appear at the trial since he has had an opportunity to traverse, via his answer, the material averments contained in the complaint. Such defendant has a better standing than a defendant who has neither answerd nor appeared at trial. The former should be allowed to reiterate all affirmative defenses pleaded in his answer before the court of Appeals. Likewise, the Court of Appeals may review the correctness of the valuation of the plaintiffs evidence by the lower court. (Monarch Insurance Co., Inc.,et al., v. Court of Appeals, et al., G.R. No. 92735; Allied Guarantee Insurance Co., v. Court of Appeals, G.r. No. 94867; Equitable Insurance Corporation v. Court of Appeals, etc., et al., G.R. No. 95578, prom. June 8, 2000) c. Liberal interpretation of default orders. Suits should be as much as possible be decided on the merits and not on technicalities. Courts should be liberal in sitting aside orders of default judgmnts are frowned upon. A default judgment does not pretend to be based upon the merits of the controversy. A judgment by default may amount to a positive and considerable injustice to the defendant; and the possibillity of such serious consequence necessitates a careful examination of the grounds upon which th defendant asks that it be set aside. (Sps. Diaz, et al., v. Diaz, et al., G.R. No. 135885, prom. April 28, 2000; Sps. Ampeloquio, Sr., v. Court of Appeals, et al., G.R. No. 124243, prom. June 15, 2000) Since rules of procedure are mere tools designed to facilitate the attainment of justice, it is well recognized that the Supreme Court is empowered to suspend its operation, or except a particular case from its operation, when the rigid application thereof tends to frustrate rather than promote the ends of justice. (Sps. Diaz, et al., supra) ***129. What are the remedies of a party declared in default ? SUGGESTED ANSWER: a. A party declared in default may at any time after discovery thereof and before judgment, file a motion, under oath, to set aside the order of default upon proper showing that: 1) His failure to answer was due to fraud, accident, mistake or excusable negligence, and 2) That he has a meritorious defense. (Sec. 3 [b], Rule 9, ROC) b. If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Sec. 1 [a], Rule 37, ROC. c. If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Sec. 1, Rule 38, ROC. d. He may also appeal the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order or default has been presented to him. (Sec. 2, Rule 41, ROC) NOTES AND COMMENTS: Order of default is not appealable. The order is interlocutory because the court has still to render judgment by default. (Vda. De Hoyo-a, et al., v. Virata, et al., 137 SCRA 758, 780) Order denying a motion to set aside order of default is appealable An order denying a motion to set aside an order of default, not being interlocutory but final is immediately appealable. (Rodriguez, Jr. v. Intermediate Appellate Court, et al., 148 SCRA 612).

DEF EN DANT 's MOTIO NS , PLE ADI NG S,

ET C .

a. Motions 1) For extension of time to plead or respond 2) To expunge the complaint or portions thereof. 3) For bill of particulars. 4) To dismiss. 5) To lift order of default. Refer to previous discussion. b. Pleadings

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1) 2) 3) 4) c. Others 1)

Answer. Counterclaim. Cross-claim. Third party complaint. Opposition to plaintiff's various motions.

MOTION FOR EXTENSION OF TIME TO PLEAD OR RESPOND

SUMMARY OF DIFFERENT PERIODS TO FILE RESPONSIVE ANSWER OR RESPONSIVE PLEADING. a. Within a period fixed by the court 1) Answer to the complaint (Sec. 1, Rule 11, ROC) 1) Answer to supplemental complaint. (Sec. 7, Rule 11, ROC) 2) Answer to complaint-in-intervention. (Sec. 4, Rule 19, ROC) b. Within ten (10) days 1) From notice of admission of order admitting amended complaint. Answer to amended complaint, amended counterclaim, amended cross-claim, amended third (fourth, etc) - party complaint and amended complaint-inintervention, where amendment is not a matter of right. (2nd and 3rd APRs., Sec. 3, Rule 11, ROC) 2) From service. Answer to counterclaim or cross-claim. (Sec. 4, Rule 11, ROC) 3) From service of pleading responded to. Reply. (Sec. 6, Rule 11, ROC) 4) From notice of order admitting supplemental complaint. Answer to supplemental complaint. (Sec. 7, Rule 11, ROC) c. Within fifteen (15) days: 1) After service of summons. Answer (Sec. 1, Rule 11, ROC) 2) After defendant served with copy of amended complaint as a matter of right. Answer to amended complaint. (1st par., Sec. 3, Rule 11, ROC) 3) From notice of the order admitting a complaint-in-intervention. Answer to a complaint-in-intervention. (Sec. 4, Rule 19, ROC) d. Within thirty (30) days: 1) After receipt of summons by government official designated by law to receive summons on a defendant foreign private juridical entity. Answer. (Sec. 2, Rule 11, ROC) e. Not less than sixty (60) days 1) After notice of order granting extraterritorial service of summons or by publication when the defendant does not reside and is not found in the Philippines. (Sec. 15, Rule 14, ROC)

MOTION TO EXPUNGE
130. How may a pleading or any matter contained therein be stricken out ? SUGGESTED ANSWER: a. Upon motion made by a party before responding to a pleading or, b. if no responsive pleading is permitted by these Rules of Court , c. upon motion made by a party within twenty (20) days after the service of the pleading upon him, or d. upon the court's own initiative at any time, e. the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalously matter be stricken out therefrom. (Sec. 12, Rule 8, ROC numbering, arrangement and words not in bold supplied)

MOTION FOR BILL OF PARTICULARS

131. Explain the nature and procedure for a bill of particulars. SUGGESTED ANSWER:

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a. When filed. Before responding to a pleading. If a pleading is a reply, the motion must be filed within ten (10) days from service. b. Grounds. The party may move for a definite statement or bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. c. Action of court. 1) Deny the motion, or 2) Grant it outright, or 3) Allow the parties to be heard. (Sec. 1, Rule 10, ROC) NOTES AND COMMENTS: Effect of non-compliance with order for bill of particulars: If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such order as it deems just. (Sec. 4, Rule 12, ROC)

MOTION TO DISMISS
***132. What are the grounds for a motion to dismiss ? SUGGESTED ANSWER: a. That the court has no jurisdiction over the person of the defending party. b. That the court has no jurisdiction over the subject matter of the claim. c. That venue is improperly laid. d. That the plaintiff has no legal capacity to sue. e. That there is another action pending between the same parties for the same cause. f. That the cause of action is barred by a prior judgment or by the statute of limitations. g. That the pleading asserting the claim states no cause of action. h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished. i. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. j. That a condition precedent for filing the claim has not been complied with. (Section 1, Rule 16, ROC) NOTES AND COMMENTS: ***a. Time for filing motion to dismiss. The period to file a motion to dismiss depends upon the circumstances of the case. Section 1 of Rule 16 of the Rules of Court requires that, in general, a motion to dismiss should be filed within the reglementary period for filing a responsive pleading. Thus, a motion to dismiss alleging improper venue cannot be entertained unless made within that period. However, even after an answer has been filed, the Supreme Court has allowed a defendant to file a motion to dismiss on the following grounds: 1) Lack of jurisdiction 2) Litis pendentia; 3) Lack of cause of action; and 4) Discovery during the trial of evidence that would constitute a ground for dismissal. (Obando, et al., v. Figueras, et al., G.R. No. 134854, prom. January 18, 2000) ***b. Waiver of defenses. Defenses and objections not pleaded wither in a mnotion to dismiss or in the answer are deemed waived. (1st sentence, Sec. 1, Rule 9, ROC) ***c. Defenses and objections not waived. Even if motion to dismiss is filed after the answer, the court shall dismiss the claim when it appears from the pleadings or evidence on record 1) that the court has no jurisdiction over the subject matter, 2) that there is another action pending between the same parties for the same cause, or 3) that the action is barred by prior judgment, or by statute of limitations. (2nd sentence, Sec. 1, rule 9, ROC)

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d. Motion to dismiss that needs hearing. A motion to dismiss raising an affirmative defense such as lack of cause of action poses a question of fact that should be resolved after due hearing. This is unlike a motion to dismiss based on the failure of the complaint to state a cause of action which may be resolved solely on the basis of the allegations of the complaint. (Heirs of Paes v. Hon. Torres, etc., et al., G.R No. 104314, prom. February 2, 2000) ***133. The general rule is that the filing of a motion to dismiss hypothetically admits the material allegations of the complaint. Are there any exceptions to this rule ? SUGGESTED ANSWER: There are equally established limitations to the rule on hypothetical admission, i.e., that a motion to dismiss does not admit: a. the truth of mere epithets of fraud; b. nor allegations of legal conclusions; c. nor an erroneous statement of law; d. nor mere inferences or conclusions from facts not stated; e. nor mere conclusions of law; f. nor allegations of fact the falsity of which is subject to judicial notice; g. nor matters of evidence; h. nor surplussage and irrelevant matter; i. nor scandalous matter inserted merely to insert (sic, should be to insult ?) the opposing party; j. nor to legally impossible facts; k. nor to facts which appear unfounded by a record incorporated in the pleading, or by a document referred to; and l. nor to general averments contradicted by more specific averments. (Tan, et al., v. Court of Appeals, et al., G.R. No. 125861, prom. September 9, 1998) NOTES AND COMMENTS: a. Test for determining sufficiency of complaint as to cause of action. In determining the existence of a cause of action, only the statements in the complaint may properly be considered. Lack of cause of action must appear on the face of the complaint and its existence can be determined only by the allegations of the complaint, consideration of other facts being proscribed and any attempt to prove extraneous circumstances not being allowed. The test of sufficiency of the facts found in the complaint as constituting a cause of action is whether or not admitting the facts alleged the court can render a valid judgment upon the same in accordance with the prayer thereof. The hypothetical admission extends to the relevant and material facts well pleaded in the complaint and inferences fairly deducible therefrom. Hence, if the allegations in the complaint furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants. (Viewmaster Construction Corporation v. Roxas, et al., G.R. No. 133576, prom. July 13, 2000 citing Navoa v. Court of Appeals, 251 SCRA 545) ***b. Exceptions to the above test. The trial court and the Court of Appeals should not have been too rigid in applying the rule that in resolving a motion to dismiss on the ground of failure to state a cause of action, only the averments in the complaint and no other are to be consulted. The rule admits of exceptions: First: All documents attached to the complaint, the due execution and genuineness of which are not denied under oath by th defendant, must be considered as part of the complaint without need of introducing evidence thereon. Second: Other pleadings submitted by the parties, in addition to the complaint, may be considered in deciding whether the complaint should be dismissed for lack of cause of action. It is only logical for the lower court to consider all these pleadings in determining whether there was a sufficient cause of action as the order of dismissial is summary in nature. So long as those attached pleadings are procedurally responsible to the complaint, then they may be considered in evauating the sufficiency of the cause of action in the complaint. In addition, since the dismissal of a complaint by virtue of a motion to dismiss for failure to state or for insufficiency of cause of action would be tantamount to a summary judgmnt, the lower court should at least have considered the attached documens and pleadings as a matter of due process. Strictly limiting the evaluation of the merits ot the complaint to its averments or allegations would be too constricting an interpretation of the rule. It must be remembered that the complaint itself is accompanied by documentary evidence attached annexes. The responsive

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pleadings, in adition, though not attachments to the complaint, clarify its merits since they are already part of the records of the case and should therefore be considered. (Sea-land Services, Inc. v. Court of Appeals, et al., G.R. No. 126212, prom. March 2, 2000, citing Fil-Estate Gold and Development, Inc. v. Court of Appeals, et al., 265 SCRA 614; Alberto v. CA, et al., G.r. No. 119088, prom. June 30, 2000) ***134. What is the effect of a motion to dismiss on a compulsory counterclaim ? SUGGESTED ANSWER: The filing of a motion to dismiss is an implied waiver of a compulsory counterclaim A compulsory counterclaim presupposes the existence of a claim against the party filing the complaint and a grant of a motion to dismiss would remove the basis of a counterclaim. NOTES AND COMMENTS: a. Nature of compulsory counterclaim. A compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom. A counterclaim presupposes the existence of a claim against the party filing the counterclaim. Hence, where there is no claim against the counterclaimant, the counterclaim is improper and it must be dismissed, more so where the complaint is dismissed at the instance of the counterclaimant. In other words, if the dismissal of the main action results in the dismissal of the counterclaim already filed, it stands to reason that the filing of a motion to dismiss the complaint is an implied waiver of the counterclaim because the grant of the motion ultimately results in the dismissal of the counterclaim Thus, 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 will lose his compulsory counterclaim. But if heopts to set up his compulsory counterclaim, he may still plead his ground for dismissal as a affirmative defense in his answer. (Financial Building Corporation v. Forbes Park Association, Inc., G.R. No. 133119, prom. August 17, 2000) The reader should realize that the grounds for a motion to dismiss may be pleaded as affirmative defenses in the answer and the counterclaim may be validly pleaded. This is so, because during the trial on the merits, prior to a determination whether the complaint should be dismissed upon the affirmative defenses, the counterclaimant would have ample opportunity to prove his claim. It is different if a motion to dismiss is granted because that would be the end of the proceedings and the counterclaimant would have no opportunity to ventilate his claim. 135. Jaime filed a complaint for ejectment against Amor with the Municipal Trial Court. In his answer with motion to dismiss Amor averred that the MTC had no jurisdiction over the case because it involved a landlord-tenant relationship and should have been filed with the Department of Agrarian Reform. Since the answer was filed out of time, the MTC considered the same submitted for decision and subsequently ordered Amor to vacate the land. Was the MTC correct in rendering judgment on the case ? SUGGESTED ANSWER: The MTC should not have disregarded Amors answer and should have heard and received the evidence for the purpose of determining whether or not it had jurisdiction over the case. (Corpin v. Vivar, et al., G.R. No. 137350, prom. June 19, 2000) 136. Is the denial of a motion to dismiss subject to appeal or certiorari ? SUGGESTED ANSWER: When the motion to dismiss is denied the ordinary procedure is for the movant to file and answer, go to trial and then reiterate the grounds raised in the motion to dismiss as grounds for assailing the judgment. (Drilon, et al., v. Court of Appeals, et al., G.R. No. 107019, prom. March 20, 1997) Hence it is not subject to appeal. REASON: The denial of a motion to dismiss or to quash, being interlocutory, cannot be questioned by certiorari; it cannot be the subject of appeal, until final judgment or order is rendered. (Casil v. Court of Appeals, et al., G.R. No. 121534, prom. January 28, 1998) NOTES AND COMMENTS: a. Exception or instance where denial of motion to dismiss may be the subject of certiorari. If the court denying the motion to dismiss acts without or in excess of jurisdiction or with grave abuse of discretion, certiorari under Rule 65 of the Rules of Court may be availed of. The reason is that it would be unfair to require the defendant-movant to undergo the ordeal and expense of trial under such circumstances because the remedy of appeal then would not be plain

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and adequate. (Drilon, et al., v. Court of Appeals, et al., G.R. No. 107019, prom. March 20, 1997)

ANSWER
***137. What are the facts deemed admitted by the failure to deny under oath the genuineness and due execution of an actionable document ? SUGGESTED ANSWER: a. The party whose signature appears on the document signed it. b. If signed by another, the document was signed for the party whose name appears on the document with his authority. c. At the time the document was signed, it was in the words and figures exactly as set out in the pleading and of the party relying upon it. d. The document was delivered. e. Any formal requisites of law, such as seal, acknowledgment or revenue stamp which the document lacks, are deemed waived. (Hibbered v. Rhode, 32 Phil. 476) NOTES AND COMMENTS: a. Instances where the benefit of admission of genuineness of actionable document is waived: 1) Where the pleader presented witnesses to prove the genuineness and due execution, and the adversary proved, without objection, the contrary. (Yu Chuck v. Kong Li Po, 46 Phil. 608) 2) Where the pleader fails to object to evidence controverting the genuineness and due execution. (Legarda Koh v. Ongsiaco, 36 Phil. 185) b. Instances where there is no admission even if no denial under oath: 1) When the adverse party does not appear to be a party to the instrument. 2) When compliance with an order for inspection of the original document is denied. (Sec. 8, Rule 8, ROC) 138. INK filed with the RTC of Quezon City a complaint for the annulment of deeds of mortgage over certain lots, inmpleading Ligon, Linzag, Sampaco and IDP. In its answer, IDP interposed a cross-claim against Ligon. On the other hand, Ligon filed an answer with counterclaim; a cross-claim against IDP; and a third party complaint against de Leon, Guillermo and Aida. IDP charged in its answer with cross-claim that Ligon should have known that the persons she transacted with had not authority to bind IDP to the loans and mortgages she was trying to enforce. Ligon on the other hand, alleged in her cross-claim that IDP unjustly refused to pay the loans it contracted from her which had become due and demandable. Ligon filed a motion to declare IDP in default for its failure to file an answer to her cross-claim. Rule on the motion. SUGGESTED ANSWER: Motion denied. The answer to a cross-claim is meant to join the subsidiary issues between co-parties in relation to the opposing party's claim against the cross-claimant. From the foregoing, it is inevitable that IDP's cross-claim effectively joined the subsidiary issues between the co-parties. Requiring an answer to Ligon's cross-claim would be superfluous. (Ligon v. Court of Appeals, et al., G.R. No. 127683, prom. August 7, 1998)

COUNTERCLAIM
***139. What is a compulsory counterclaim ? Give examples. SUGGESTED ANSWER: One which, being cognizable by the regular courts of justice, a. arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and b. does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. c. Such a counterclaim must be within the jurisdiction of the court both as to amount and the nature thereof,

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d. except that in an orginal action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of amount. Sec. 7, Rule 6, ROC numbering and arrangement supplied) Examples of compulsory counterclaims: a. In an action for recovery of land, the defendant's claim for improvements, and even necessary expenses are compulsory counterclaims. (Camara v. Aguilar, 94 Phil. 527) b. In a possessory action, the defendant's claim of ownership of the land in question is a compulsory counterclaim. c. Damages claimed to have been suffered as a consequence of the action filed partake of a compulsory counterclaim which must be pleaded in the same action. (Tiu Po v. Bautista, 103 SCRA 388) d. A claim for attorney's fees should be considered as in the nature of a compulsory counterclaim and should be pleaded in the answer to be recoverable otherwise barred. NOTES AND COMMENTS: a. Tests to determine whether counterclaim is compulsory or not. 1) Are the issues of fact or law raised by the claim and the counterclaim largely the same? 2) Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule ? 3) Will substantially the same evidence support or refute plaintiffs claim as well as the defendants counterclaim ? 4) Is there any logical relation between the claim and the counterclaim ? Affirmative answers to the above queries indicate the existence of a compulsory. (Financial Building Corporation v. Forbes Park Association, Inc., G.R. No. 133119, prom. August 17, 2000) b. Compulsory counterclaim must be set up otherwise barred. The compulsory counterclaim is barred if it is not set up in the action filed by the opposing party. Thus, a compulsory counterclaim cannot be the subject of a separate action but it should instead be asserted in the same suit involving the same transaction or occurrence, which gave rise to it. (Financial Building Corporation v. Forbes Park Association, Inc., G.R. No. 133119, prom. August 17, 2000) c. A counterclaim may be asserted against an original counter-claimant. (1st sentence, Sec. 9, Rule 6, ROC) d. Instance where jurisdictional requirement for counterclaim does not apply : In an original action before the Regional Trial Court, the counterclaim may be considered as compulsory regardless of amount. (2nd sentence, Sec. 7, Rule 6, ROC) e. Counterclaim may not be dismissed if defendant objects to plaintiffs motion for dismissal or when counterclaim survives dismissal of original suit. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. (2nd and 3rd sentences, Sec. 2, Rule 17, ROC) The above rule applies only where the plaintiff moves to dismiss the complaint or in cases of permissive counterclaims. f. Compulsory counterclaim does not survive if original suit dismissed for lack of jurisdiction: REASON: A compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom, inasmuch as it arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the complaint. The above rule applies where the defendant moves to dismiss the complaint but interposes a compulsory counterclaim. The permissive counterclaim is not dismissed because it is as if, it is a separate case. This is so, because the defendant is required to pay docket fees for his permissive counterclaim. If the defendants motion to dismiss is granted no jurisdiction remains for any grant of relief under the counterclaim. (Intestate Estate of Amado B. Dalisay v. Marasigan, et al., G.R. No. 115088, prom. June 20, 1996) There is implied waiver of the compusory counterclaim because the basis for the counterclaim does not exist. (Financial Building Corporation v. Forbes Park Association, Inc., G.R. No. 133119, prom. August 17, 2000)

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CROSS-CLAIM
140. What is a cross-claim ? SUGGESTED ANSWER: A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (Sec. 8, Rule 6, ROC)

THIRD PARTY COMPLAINT

141. What is a third party complaint ? SUGGESTED ANSWER: A claim that a defending party may, with leave of court, file against a person not a party to the action, called third party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec. 11, Rule 6, ROC)

PLAI NTIFF' s AN D DE FEN DANT 's COM MO N MO TIO NS , ET C .

a. Opposition to each other's motions. b. Application for depositions and discoveries. c. Application for substitution of counsel 142. What are the requisites for the application for substitution of counsel ? SUGGESTED ANSWER: a. Filing of a written application for substitution. b. Written consent of the client. c. Written consent of the lawyer to be substituted, if such consent can be obtained. d. Where such written consent cannot be obtained, substitution must be accompanied with proof of service of notice of such motion in the manner required by the rules, on the attorney to be substituted. (Morales, et al., v. Fabello, et al., 149 SCRA 338)

AFTE R DEFE ND AN T'S ANS WER , CO UN TER CL AI M

PLAI NTIFF' s MO TI ON S AN D PLE ADI NG S
a. Motions 1) To withdraw or dismiss complaint. 2) To amend or supplement the complaint. 3) To expunge the answer, counterclaim or any part thereof. 4) For judgment on the pleadings. 5) For summary judgment. 6) To set pre-trial. b. Pleadings 1) Reply 2) Answer to counterclaims

JUDGMENT ON THE PLEADINGS

143. What is judgment upon the pleadings ? SUGGESTED ANSWER: Judgment by the court upon motion of a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, where an answer: a. Fails to tender an issue; or b. Otherwise admits the material allegations of the complaint, counterclaim, cross-claim or third-party complaint. (Sec. 1, Rule 34, ROC)

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NOTES AND COMMENTS: a. Judgment on the pleadings distinguished from summary judgment: 1) Contents of the answer. In judgment on the pleadings the answer either does not tender any issue or otherwise admits all the allegations in the plaintiff's complaint WHILE the answer in summary judgment tender some issues but these issues are not genuine so that they require no judicial determination. 2) Party. It is the plaintiff, counterclaimant, cross-claimant, or thirdparty plaintiff who avails of the remedy of a judgment on the pleadings WHILE summary judgment may be asked by the claimant or the defending party. 3) Basis. Judgment on the pleadings is based solely on the pleadings WHILE summary judgment is based not only on the pleadings but also on affidavits, admissions, depositions and other documents. 4) Notice. In judgment on the pleadings there is no specific requirement when the motion shall be served to the opposing party, hence it should be served at least three (3) days before the date of the hearing which in turn must not be later than ten (10) days after the filing of the motion WHILE a motion for summary judgment shall be served at least ten (10) days before the date specified for hearing which in turn must not be later than ten (10) days after filing of the motion.

MOTION FOR SUMMARY JUDGMENT

144. What is the burden of the movant in a motion for summary judgmnt ? SUGGESTED ANSWER: The controlling factor in a motion for summary judgment is not the submission or non-submission of counter-affidavits, but the presence or absence of any genuine issue as to any material fact that would require he presentation of evidence. Where the facts pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial. Thus, a party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is so patently insubstantial as not to constitute a genuine issue for trial, and any doubt as to the existence of such an issue is resolve against the movant. (Sps. Go v. Court of Appeals, et al., G.R. No. 120040, prom. January 29, 1996) Testimonial evidence is not needed only documetnary evidence to prove absence of genuine issues. ( Sec. 3, Rule 34, ROC) 145. In consequence of a petition for certiorari filed before it the Supreme Court on September 4, 1987 issued a TRO against Sta. Clara Housing Industries, Inc. from withdrawing and/or further disposing of the plywood inventory inits plant or warehouse. On October 26, 1987, the sheriff seized eleven (11) crates of plywood allegedly being transported to the wharf at Ilang, Davao City in violation of the TRO. These crates had the markings of Sta. Clara and Firmwood. On November 18, 1987 Firmwood claiming to be the owners of the eleven (11) crates of plywood filed with RTC of Davao City a complaint for delivery if personal property and damages as well as attorneys fees. The defendants alleged in their answer that the owner of the plywood was Sta. Clara and not Firmwood. The answer further admitted that the goods contained the label and markings of Firmwood. Sta. Clara filed its complaint in intervention stating that it is joining Firmwood in its suit to recover possession of the plywood seized and detained by the defendants; that Firmwood was the same was milled by Sta. Clara for Firmwood; that Sta. Clara had the right to the possessionof the plywood in order to comply with its obligations under a warranty to deliver the goods to Firmwood; and finallym that the TRO issued by the Supreme Court which was the basis for the service had already been lifted. On August 30, 1988 Firmwood filed a motion for summary judgment alleging that aside from the amount of damages due it there was no genuine issue as to any material fact of the case, Sta. Clara having confirmed Firmwoods ownersp over the eleven (11) crates of plywood. Sta. Clara also filed a motion for summary alleging the same grounds raised by

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Firmwood and further contending that the defendants did not have the authority to hold the property in custodia legis. Should the motion for summary judgment be granted ? SUGGESTED ANSWER: Yes. there are no genuine issues with respect to the ownership of the eleven (11) crates of plywood. furthermore, it is clear that the defendantshad nbo authority to seize the plywood considering that the TRO did not contain any cdirective whatsoever to any of the defendants to seize property belonging to Sta. Clara, or to keep the property seized in their possession. (Velasco, et al., v. Court of Appeals, et al., G.R. No. 121517, prom. March 31, 2000) NOTES AND COMMENTS: a. Nature of authority to grant relief by summary judgment. Rule 35 of the 1997 Rules of Civil Procedure as amended. which gives authority to trial courts to grant relief by simmary judgment is intended to expedite and promptly dispose of cases where the facts appear undisputed and certain from the pleadings, admissions and affidavits. This rule does not vest in the court summary jurisdiction to try issues on pleadings and affidavits but gives the court limited authority to enter summary judgment only if it clearly appears tht there is no genuine issue of material fact. On a motion for summary judgment, the court is not authorized to decide an issue of fact but to determine whether the pleadings and records before the court create an issue of fact to be tried. It is impossible to state a general rule for determining whether a genuine issue of fact exists in a particular case. The determination will depend upon the particular circumstances of each case. Nevertheless, the language used by courts in making a determination in particular cases may serve to indicate the manner in which a court should approach the question to be determined. It is repeated often enough that the court is notauthorized to try the issue of fact but to dtermine whether there is an issue to be tried. Where the motion is made by a claimant, the defending party must show that he has a plausible ground of defense, something fairly arguable and of a substantial character. (Velasco, et al., v. Court of Appeals, et al., G.R. No. 121517, prom. March 31, 2000) Courts are quite critical of the papers presented by the moving party but not of the papers in opposition thereto. Thus, in ruling on a motion for summary judgment, the court should take that view of the evidence most favorable to the party against whom it is directed, giving such party the benefit of all favorable inferences. (Garcia, et al., v. Court of Appeals, et al., G.R. No. 117032, prom. July 27, 2000) b. Grounds for summary judgment. If the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Sec. 3, Rule 35, ROC) c. Where summary judgment not proper, definition of genuine issue. Where the pleadings tender a genuine issue, i.e. an issue of fact the resolution of which calls for presentation of evidence, as distinguishehd from an issue which is sham, fictitious, contrived, set-up in bad faith, or patently unsubstantial, summary judgment is not proper. (Mallilin, Jr., v. Casstillo, G.R. No. 136803, prom. June 16, 2000; Ley Construction and Development Corporation, et al., v. Union Bank of the Philippines, G.R. No. 133801, prom. June 27, 2000) d. Hearing not required for summary judgment. In proceedings for summary judgment, the court is merely expected to act chiefly on the basis of what is in the records of the case and he hearing contemplated in the Rules is not de riguer as its purpose is merely to determine whether the issues are genuine or not, and not to receive evidence on the issues set up in the pleading. (Ley Construction and Development Corporation, et al., v. Union Bank of the Philippines, G.R. No. 133801, prom. June 27, 2000 citing Carcon Development Corporation v. Court of Appeals, 180 SCRA 348)

REPLY
146. What is the procedure to be followed if new claims arise out of the answer ? SUGGESTED ANSWER: If the plaintiff wishes to interpose any claims arising out of the new matters so alleged in the answer such claims shall be set forth in an amended or supplemental complaint. (2nd par., Sec. 10, Rule 6, ROC words not in bold supplied)

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MOTION TO SET PRE-TRIAL PLAI NTIFF'S ET C . AND DEFE ND AN T'S COM MO N MO TIO NS ,

a. Opposition to each other's motions. b. Pre-trial brief. c. Application for depositions or modes of discoveries.

PRE-TRIAL BRIEF
147. When shall the pre-trial brief be filed ? SUGGESTED ANSWER: The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs. (1st par., Sec. 6, Rule 18, ROC) NOTES AND COMMENTS: a. Effect of failure to file pre-trial brief. The failure to file a pre-trial brief has same effect as failure to appear at the pre-trial. (last par., Sec. 6, Rule 18, ROC) b. Contents of a pre-trial brief: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of the admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purposes thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The numbers and names of the witnesses, and the substance of their respective testimonies. (1st par., Sec. 6, Rule 18, ROC)

PRE -T RI AL A ND TR IA L
PRE-TRIAL
148. It is the duty of the parties and their counsel to appear at the pre-trial. What is the effect of the failure of the parties to appear during the pre-trial ? SUGGESTED ANSWER: If the plaintiff fails to appear the action shall be dismissed with prejudice, unless otherwise ordered by the court. (1st and 2nd sentences, Sec. 5, Rule 18, ROC) The failure of the defendant to appear at the pre-trial shall be cause to allow the plaintiff to present his evidence ex parte and the court shall render judgment on the basis thereof. (3rd sentence, Sec. 5, Rule 18, ROC) NOTES AND COMMENTS: a. Factors in deciding grant or denial of motion for postponment of pre-trial. The court shall take into account: 1) The reason for the postponemt; 2) The merits of the case of the movant. (Philippine Transmarine Carriers, Inc., et al., v. Court of Appeals, et al., G.R. No. 122346, prom. February 18, 2000) b. Meritorious defense. The term meritorious defense may imply that the applicant has the burden of proving such a defense in order to have the judgment set aside. The cases usually do not require such a strong showing. The test employed appears to be essentially the same as used in considering summary judgment, i.e. whether there is enough evidence to present an issue for submission to the trier of fact, or a showing that on the undisputed facts it is clear the judgment is warranted as a matter of law. The defendant must show that she has a meriotrious defense otherwise the grant of her otion will prove to be a useless exercise. Thus, her motion must be accompanied by a statement

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of the evidence which she intends to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise. (Philippine Transmarine Carriers, Inc., et al., v. Court of Appeals, et al., G.R. No. 122346, prom. February 18, 2000)

TRIAL
149. Are there any instances where no trial is conducted in civil cases ? SUGGESTED ANSWER: Yes. Where the case is: a. Dismissed upon a motion to dismiss the complaint or pleading asserting a claim filed by the defending party. (Rule 16, ROC) b. Dismissed by the plaintiff without order of the court. (Sec. 1, Rule 17, ROC) c. Dismissed by the plaintiff upon order of the court at the plaintiff's instance. (Sec. 2, Rule 17, ROC) d. Dismissed upon motion of the defendant or upon the court's own motion if the plaintiff fails to appear at the trial, or prosecute his action for an unreasonable length of time, or to comply with the Rules of Court, or any order of the court. (Sec. 3, Rule 17, ROC) e. Decided after declaration of default for failure of the defending party to file an answer unless the court in its discretion requires the claimant to submit evidence. (Sec. 3, Rule 9, ROC) f. Decided on a motion for judgment on the pleadings. (Rule 34, ROC) g. Decided for failure of the parties and their counsel to appear at the pre-trial. (Sec. 5, Rule 18, ROC) h. Decided after the court finds during the pre-trial the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist. (Sec. 2 [g], Rule 18, ROC) i. Decided on a motion to dismiss or judgment by default by wilful failure or refusal of a party to have his deposition taken or to answer interrogatories. (Sec. 5, Rule 29, ROC) j. Decided after the parties have agreed in writing, upon the facts involved in the litigation and submit the case for judgment on the facts agreed upon, without the introduction of evidence. (Sec. 6, Rule 30, ROC) 150. When may trial by commissioner be conducted ? SUGGESTED ANSWER: Trial by commissioner may be conducted upon reference through mutual consent of both parties, upon motion of either party or upon the courts own motion. a. There may be reference by consent. By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word commissioner includes a referee, an auditor and an examiner. (Sec. 1, Rule 32, ROC) b. There mau also be refered ordered by the court on motion. When the parties do not consent, the court may, upon application of either or of its own motion, direct a reference to a commissioner in the following cases: a) When the trial of an issue of fact requires the exmination of a long account on either side, in which case the commissioner ay be directed to herar and report upon the whole issue or any specific question involved therein; 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; c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or oder into effect. (Sec. 2, Rule 32, ROC) NOTES AND COMMENTS: a. Court not bound by the commissioner. Ultimately the trial court in the exercie of its sound discretion, may either adopt, modify, or reject in whole or in part the commissioner;s report or it may recommit the same with instructions, or require the parties to present additional evidence before the commissioner of before the court. (Lao v. Court of Appeals, et al., G.R. No. 47013, Co v. Court of Appeals, et al., G.R. No. 60647, and The Associated Anglo-American Tobacco Corporation v. Court of Appeals, et al., G.R. Nos. 60958-59, prom. February 17, 2000)

DEMURRER TO EVIDENCE

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***151. What is a motion for judgment on demurrer to evidence and what are its effects ? SUGGESTED ANSWER: A motion to dismiss filed by the defending party after the claimant has rested his case, on the ground of insufficiency of evidence. Effects of filing a motion for judgment on demurrer to evidence: a. The defending party does not thereby waive his right to offer evidence in the event that his motion is denied. (Sec. 1, Rule 33, ROC) b. If the motion is granted and the order of dismissal is reversed on appeal, the defendant waives his right to present evidence in his behalf. (Ibid.) c. In case (b) above, the appellate court shall forthwith render judgment for the claimant on the basis of his evidence alone. (Atun v. Nunez, 97 Phil. 762)

DISMISSALS
***152. When are dismissals with prejudice ? SUGGESTED ANSWER: The following are dismissals with prejudice: a. Dismissal upon mere notice without order of the court when filed by a party who has once dismissed in a competent court an action based on or including the same claim. (Sec. 1, Rule 17, ROC) b. Dismissal by order of the court upon a party's motion which specifies that the same shall be with prejudice o the filing of a subsequent action based on or including the same claim. (Sec. 2, Rule 17, ROC) c. Dismissal upon motion of a defendant or on the court's own motion upon a failure by the plaintiff to prosecute his claim. (Sec. 3, Rule 17, ROC) d. Dismissal as a result of the plaintiffs absence during the pre-trial, unless otherwise ordered by the court. (1st and 2nd sentences, Rule 18, ROC) ***153. What dismissals are without prejudice ? SUGGESTED ANSWER: a. Dismissal for the first time by the plaintiff upon mere notice without order of the court. (Sec. 1, Rule 17, ROC) b. Dismissal by order of the court upon the plaintiff's motion. (sec. 2, Rule 17, ROC) c. Dismissal upon motion of the defendant or upon the court's own motion upon failure to prosecute by the plaintiff and the court specifies that the same shall be without prejudice. (Sec. 3, Rule 17, ROC) 154. When may an action be dismissed upon motion of the defendant or motu proprio by the court ? SUGGESTED ANSWER: If for no justifiable cause the plaintiff fails: a. To appear on the date of the presentation of his evidence in chief on the complaint; or b. To prosecute his action for an unreasonable length of time, or c. To comply with the Rules of Court, or d. To comply with any order of the court. The dismissal shall be without prejudice to the right of the defendant to prosecute the counterclaim in the same or in a separate action. The dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (Sec. 3, Rule 17, ROC numbeing and arrangement supplied)) 155. When is an action dismissed for failure to prosecute ? SUGGESTED ANSWER: a. If the plaintiff fails to appear at the time of trial; or b. If he fails to prosecute the action for an unreasonable length of time; or c. If he fails to comply with the Rules of Court or any order of the court. (De Knecht, et al., v. Court of Appeals, et al., G.R. No. 108015 and De Knecht, et al. v. Hon. Sayo, et al, G.R. No. 109234, prom. May 20, 1998) NOTES AND COMMENTS: a. Effect of dismissal for failure to prosecute: Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with

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prejudice to the filing of another action unless otherwise provided for in the order of dismissal. (De Knecht, et al., v. Court of Appeals, et al., G.R. No. 108015 and De Knecht, et al. v. Hon. Sayo, et al, G.R. No. 109234, prom. May 20, 1998) In other words, unless there be a qualification in the order of dismissal that it is without prejudice, the dismissal should be regarded as an adjudication on the merits and is with prejudice. (Knecht) b. Examples of disobedience of court orders which may result in dismissal: 1) An order directing the plaintiff to amend his complaint so as to indicate the representative of the deceased defendant. (Sunico v. Villapando, 13 Phil. 352) 2) An order to file a bill of particulars. (Bautista v. Teodoro, 101 Phil. 7001) (3) An order to present his witnesses anew in view of the fact that the judge was not the one who originally tried the case. (Castillo v. Sebullina, 31 Phil. 518)

PLAI NTIFF'S AND DEFE ND AN T'S COM MO N MO TIO NS , NO TIC ES, ET C. MOTION FOR THE ISSUANCE OF A SUBPOENA
156. What are some of the valid grounds for refusal to comply with a sub[oena ? SUGGESTED ANSWER: a. Where the witness resides more than one hundred (100) kilometers from his residence to the place where is to testify by the ordinary course of travel, or b. Where the witness is a detention prisoner if no permission of the court in which his case is pending was obtained. (Sec. 10, Rule 21, ROC arrangement and numbering supplied)

MOTION FOR AMENDMENT TO CONFORM TO EVIDENCE

157. How may the pleadings be amended to conform to evidence ? SUGGESTED ANSWER: a. When issues not raised by the pleadings b. are tried with the express or implied consent of the parties, c. they shall be treated in all respects as if they had been raised in the pleadings. d. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and e. to raise these issues may be f. made upon motion of any party 1) at any time, even after judgment; but 2) failure to amend does not affect the result of the trial of these issues. (1st two sentences, Sec. 5, Rule 10, ROC arrangement and numbering supplied) 159. When may the court authorize amendment of the pleadings ? Explain. SUGGESTED ANSWER: a. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, b. the court may allow the pleadings to be amended and shall do so with liberality c. if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. d. The court may grant a continuance to enable the amendment to be made. (last two sentences, Sec. 5, Rule 10, ROC arrangement and numbering supplied)

JU DG ME NT AN D A FTER JUD GME NT

JU DG MEN T

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160. What is a judgment ? SUGGESTED ANSWER: Judgment is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding. It is also the conclusion of the law upon the matters contained in the record the application of the law o the pleadings and to the facts, as found by the court or admitted by the parties, or deemed to exist upon their default in a course of judicial proceedings. (Gotamco v. Chan Seng, 46 Phil. 550) NOTES AND COMMENTS: a. Effect of judgment. Judgment is not confirmed to what appears on the face of the decision, but also to those necessarily included therein or necessary thereto. [Sec. 47 (c), rule 39, ROC cited in Nazareno v. Court of Appeals, et al., G.R. No. 131646, prom. February 23, 2000) b. Entry of judgment. The Supreme Court through a September 14, 1999 En Banc Resolution ordered that entry of judgment shall be made in cases where resolutions have been issued denying extensions to ftime to file petitions or declaring cases closed and terminated for failure to file petition. With more reason should entry of judgment be ordered where petitioners freely and voluntarily withdraw their petition. The En Banc resolution reads in full: Re: Request for Uniform Guidelines in Entries of Judgment Involving Denial of Extension of Time to File Petition or Cases Decalred Cloased and Terminated for Failure to File a Petition The Court Resolved that from hereon ENTRY OF JUDGMENT shall be made in cases where resolutions have been issued denying extensions of time to file petition or declaring cases closed and terminated for failure to file a petition. (Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No. 133843, prom. February 10, 2000) c. Strangers to the case not bound by judgment. A person not included as a party to aa case cannot be bound by a decision made by a court. A person who is not impleaded in the complaint could not be bound by the decsions rendered thereon for no man shall be affected bya proceeding to which he is a stranger. Generally acceptped is the principle that no man shall be affected by any proceeding to which he is a stranger and strangers to a case are not bound by judgment rendered by the case. (Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No. 133843, prom. February 10, 2000) 161. What are the effects of a judgment upon a compromise ? SUGGESTED ANSWER: a. It is not appealable and is immediately executory (Reyes v. Ugarte. 75 Phil. 505), unless such a motion is filed to set aside the compromise on the ground of fraud, mistake or duress, in which case an appeal may be taken from the order denying the motion. (De Guzman, et al., v. Court of Appeals, et al., 137 SCRA 736) b. It cannot be annulled unless it is vitiated by error, deceit, violence or forgery of documents. (Morales v. Fontanos, 64 Phil. 19) c. It constitutes res adjudicata. NOTES AND COMMENTS: a. Judgment upon compromise defined. A judgment upon a compromise is a judgment rendered with the consent of the parties for the purpose of effecting a compromise or settlement of an action. (31 Am. Jur. 105-108) b. Grounds for appealing a judgment on compromise: 1) On the ground of fraud, mistake or duress; 2) On the ground of error, deceit, violence or forgery of documents.. ***162. What is the effect of foreign judgments or foreign final orders ? SUGGESTED ANSWER: The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: a. In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and b. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. ( 1st par., Sec. 48, Rule 39, ROC) NOTES AND COMMENTS: a. Grounds for repelling foreign judgments:

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1) Evidence of want of jurisdiction, want of notice to the party, 2) collusion, fraud, or 3) clear mistake of law or fact. (Sec. 48, Rule 39, ROC numbering and arrangement supplied)

PLAI NTIFF' s AN D DE FEN DANT 's COM MO N MO TIO NS , PETI TIO NS ET C., AFT ER JU DG ME NT
a. Motion 1) For reconsideration. 2) For new trial. b. Petition for relief from judgment

MOTION FOR RECONSIDERATION OR NEW TRIAL

***163. What are the grounds of a motion for new trial ? SUGGESTED ANSWER: One or more of the following causes materially affecting the substantial rights of the aggrieved party: a. Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or b. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. (1st three pars., Sec. 1, Rule 37, ROC paraphrasing supplied) NOTES AND COMMENTS: a. Grounds of motion for reconsideration: 1) The damages awarded are excessive; 2) that the evidence is insufficient to justify the decision or final order, or 3) that the decision or final order is contrary to law. (last par., Sec. 1, Rule 37, ROC) b. Distinctions between new trial and petition for relief from judgment: 1) Grounds: A motion for new trial is based on fraud, accident, mistake, excusable evidence and newly discovered evidence WHILE a petition for relief is based on the grounds that the petitioner has been unjustly deprived of a hearing therein, or that he has prevented from taking an appeal, in either case, by reason of fraud, accident, mistake or excusable negligence. 2) As to time of filing. A motion for new trial should be filed within the period for taking an appeal WHILE a petition for relief from judgment is filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside and not more than six (6) months after such judgment or final order was entered. 3) Effect on the judgment if granted. No distinction. ***164. What are the various modes of attacking final and executory judgments ? Explain each briefly. SUGGESTED ANSWER: a. Direct action or proceeding to annul the same, or by motion in another case if, in the latter case, the court had no jurisdiction to enter the order or to pronounce the judgment. It is not incidental to, but is the main object of the proceeding. b. Collateral attack, in which the purpose of the proceedings is to obtain some relief, other than the vacation or setting aside of the judgment and the attack is only incidental. (1 Freemen on Judgments, Sec. 306, pp. 607-608) c. Petition for relief from judgment or order as authorized by statutes or by the rules, in the same action or proceeding in which the judgment or order was entered. (Agustin v. Bocalan, 135 SCRA 346) ***165. State the grounds for annulment of judgment. SUGGESTED ANSWER: a. Void for want of jurisdiction or lack of due process of law; and

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b. Has been obtained by extrinsic fraud. (Strait Times, etc. v. Court of Appeals, et al., G.R. No. 126673, prom. August 28, 1998) NOTES AND COMMENTS: a. Nature of fraud. Fraud may assume different shapres and may be committed in as many different ways and here lies the danger of attempting to define fraud. for man in his ingenuity and fertile imagination will always contrive new schemes to foo the unwary. (Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No. 133843, prom. February 10, 2000 citing Cosmic Lumber Corporation v. Court of Appeals) b. Kinds of fraud: 1) Extrinsic fraud which is basis for annulment of judgment. 2) Intrinsic fraud which is not basis for annulment of judgment. (Salonga, et al, v. Court of Appeals, et al., G.R. No. 11478, prom. March 13, 1997) c. Meaning of extrinsic fraud. It also known as collateral fraud. Fraud is extrinsic when it is committed to deprive a party of his day in court, thereby preventing him from assserting his rights to property. Fraud is regarded as extrinsic when it prevents a party from having a rtrial or from prepsenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procure. (Alarcon v. Court of Appeals, et al., G.R. No. 126802, prom. January 28, 2000) It refers to any fraudulent act of the prevailing party which is committed outside the trial of the case, the effect of which prevents a party from having a trial, a real contest, or from presenting all of his case to the court, or where it operates upon matters pertaining, not to the judgment itself, but to the manner in which it was procured so that there is not a fair submission of the controversy. (Strait Times, etc. v. Court of Appeals, et al., G.R. No. 126673, prom. August 28, 1998) In other words, extrinsic fraud refers to any fraudulent act of the prevailing in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the case by fraud or deception pracxticed on him by his opponent. (Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No. 133843, prom. February 10, 2000) Some act or conduct of the prevailing party which has prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure judgment without a fair submission of the controversy. (Salonga, et al, v. Court of Appeals, et al., G.R. No. 11478, prom. March 13, 1997) d. Circumstances where extrinsic fraud present: 1) Where the unsuccessful party had been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or 2) Where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or 3) Where the attorney regularly employed corruptly sells out his client's interest to the other side. (Straits Times, Inc. etc. v. Court of Appeals, et al., G.R. No. 126673, prom. August 28, 1998) e. Meaning of intreinsic fraud. These are acts of a party at a trial which prevented a fair and just determination of the case and which could have been litigated and determined at the trial or adjudication of the case. It is not a basis for annulment of a judgment. (Salonga, et al., v. Court of Appeals, et al., G.R. No. 11478, prom. March 13, 1997) f. When petition filed. A petition for annulment of judgment on the ground of fraud may be filed within four (4) years from discovery of the same. (Alarcon v. Court of Appeals, et al., G.R. No. 126802, prom. January 28, 2000; Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No. 133843, prom. February 10, 2000)

PETITION FOR RELIEF FROM JUDGMENT.

***166. What are the grounds for filing a petition for relief from judgment, order or other proceedings ?

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SUGGESTED ANSWER: When a judgment or final order is entered, or any other proceeding is hereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (Sec. 1, Rule 38, ROC) NOTES AND COMMENTS: a. Nature of petition. A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when therre is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court and he was not prevented by fraud accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. (Mercury Drug Corporation v. CA, et al., G.R. No. 138571, prom. July 13, 2000; Basco v. Court of Appeals, et al., prom. August 9, 2000 citing Samoso v. CA, 178 SCRA 654; Rizal Commercial Banking Corporation v. Lood, 110 SCRA 205; Ibabao v. Intermediate Appellate Court, 150 SCRA 76) Relief of judgment; a unique remedy; allowed only in exceptional cases.- The issue of jurisdiction aside, the Supreme Court has emphasized that a petition for relief from judgment is a unique remedy in the sense that it is based on the principle of equity and constitutes the petitioners final chance to prosecute or defend his cause. Being an act of grace, a petition for relief from judgment is usually not regarded with favor and thus, is allowed only in exceptional cases where there are no other adequate and available remedies. (Basco y Salao v. Court of Appeals and the People of the Philippines, G.R. No. 125290, prom. August 9, 2000) b. Grounds for filing a petition for relief from denial of appeal: When a judgment or final order is rendered by any court in a case, and a party thereto, by 1) fraud, accident, mistake, or excusable negligence, 2) has been prevented from taking an appeal, he may file a petition in such court, and in the same case praying that the appeal be given due course. (Sec. 2, Rule 38, ROC numbering and arrangement supplied) c. Where petition is to be filed. The petition for relief must be filed in the same court and in the same case irrespective of whether the court is an MTC, RTC, the CA or even the Supreme Court in case of a petition for relief from judgment, order or other proceeding. (Secs. 1 and 2, Rule 38, ROC) d. When petition filed. The petition for relief from judgment,order of proceeding must be filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken. (Sec. 3, Rule 38, ROC) e. Effects of granting the petition for relief from judgment, order or proceeding: 1) The court shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just. 2) Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. 3) The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (1st par., Sec. 6, Rule 38, ROC arrangement and numbering supplied) f. Effects of granting petition for relief from denial of appeal: Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. (Sec. 7, Rule 38, ROC)

A PP EA L S
GE NE RAL CONSI DERA TIO NS
***167. Distinguish the grounds from appeal from the grounds for certiorari. SUGGESTED ANSWER: If the error is in the wisdom of the trial court's findings and not of jurisdiction, the proper remedy would be appeal and not certiorari. (Philippine National Bank v. Hon. Sayo, et al., G.R. No.129918, prom. July 9, 1998) NOTES AND COMMENTS:

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a. There may be certiorari even if appeal available. Availability of an appeal does not foreclose recourse to the extraordinary remedies of certiorari or prohibition where appeal is not adequate, or equally beneficial, speedy and sufficient (Philippine National Bank v. Hon. Sayo, et al., G.R. No. 129918, prom. July 9, 1998 citing various cases), and will not promptly relieve a party from the injurious effects of the order complained of, or where the appeal is ineffective. (Africa v. Sandiganbayan, et al., G.R. No. 124478, prom. March 11, 1998) However, aside from the bare, stereotype allegation in the pleading of "no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law," there must be showing that the appeal would be inadequate, slow, insufficient, or ineffective. (Africa, supra) b. Final order defined. one which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else t be done but to enforce by execution what has been determined by the court. As distinguished therefrom, an interlocutory order is one which does not dispose of a case completely, but leaves something more to be adjudicated upon. An interlocutory order is always under the control of the court and may be modified or rescinded upon sufficient grounds shown by any time before final judgment. This prescinds from a courts inherent power to control its process and orders so as to make them conformable to law and justice. It is immaterial that the judge who exercises such powers is different from the one who issued the rescinded or amended order since the former is not legally prevented from revoking the interlocutory order of another judge in the very litigation subsequently assigned to him for judicial action. The only limitation is that the judge can not act with grave abuse of discretion, or that no injustice results thereby. (Ley Construction and Development Corporation, Sps. Manuel T. Ley and Janet T. Ley v. Union Bank of the Philippines, G.R. No. 133801, prom. June 27, 2000) c. Order dismissing a case without prejudice is a final order. An order dismissing a case without prejudice is a final order if no motion for reconsideration or appeal therefrom is timely filed. In we stated thus, The dismissal without prejudice of a complaint does not however mean that said dismissal or der was any less final. Such order of dismissal is complete in all details, and though without prejudice, nonetheless finally disposed of the matter. It was not merely an interlocutory order but a final disposition of the complaint. (Banares II, et al., v. Balising, et al., G.R. No. 132624, prom. March 13, 2000 citing Olympia International v. Court of Appeals) d. When order becomes final and executory. The law grants an aggrieved party a period of fifteen (15) days from his receipt of the courts decision or order disposing of the action or proceeding to appeal or move to reconsider the same. After the lapse of the fifteen-day period, an order becomes final and executory and is beyond the power or jurisdiction of the court which rendered it to further amend or revoke. A final judgment or order cannot be modified in any respect, even if the modification sought is for the purpose of correcting an erroneous conclusion by the court which rendered the same. (Banares II, et al., v. Balising, et al., G.R. No. 132624, prom. March 13, 2000 citing Olympia International v. Court of Appeals) e. Remedy when order already final and executory. After the order of dismissal of a case without prejudice has become final, and therefore becomes outside the courts power to amend and modify, a party wishes to reinstate the case has no other remedy but to file a new complaint. The dismissal of the case, and the lapse of the reglementary period to reconsider or set aside the dismissal, effectively operated to remove the case from the Courts docket. Even assuming the dismissal to be without prejudice, the case could no longer be reinstated or revived by mere motion in the original docketed action, but only by the filing of another complaint sccompanied, of course, by the payment of the corresponding filing fees prescribed by law. Since theoretically every final disposition of an action does not attain finality until after fifteen (15) days therefrom, and consequently within that time the action still remain within the control of the court, the plaintiff may move and set aside his notice of dismissal and revive his action before that period lapses. But after dismissal has become final after the lapse of the fiftee-day reglementary period, the only way by which the action may be resuscitated or revived is by the institution of a subsequent action through the filing of another complaint and the payemnt of fees prescribed by law. This is so because upon attainment of finality of the dismissal through the lapse of said reglementary period, the Court loses jurisdiction and control

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over it and can no longer make a disposition in respect thereof inconsistent with such dismissal. (Banares II, et al. v. Balising, et al., G.R. No. 132624, prom. March 13, 2000 citing Ortigas & Company Limited Partnership v. Velasco) ***f. Appellate court has discretion to consider errors not assigned. Generally, an appellate court may only pass upon errors assigned. However, this rule is not without exceptions. In the following instances, the Supreme Court ruled that an appellate court is accorded a broad discretionary power to waive the lack of assignment of errors and consider errors not assigned: 1) Grounds not assigned as errors but affecting the jurisdiction of the court over the subject matter; 2) Matters not assigned as errors on appeal but evidently plain or clerical errors within contemplation of law; 3) Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; 4) Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; 5) Matters not assigned as errors on appeal but closely related to an error assigned; 6) Matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. There is no reason why this rule should not apply to administrative bodies as well. (Diamonon v. Department of Labor and Employment, et al., G.R. No. 108950, prom. March 7, 2000) 168. What is the effect of a pro forma motion for reconsideration ? SUGGESTED ANSWER: A motion for reconsideration interrupts the running of the period to appeal, unless the motion is pro forma. (Marina Properties Corporation v. Court of Appeals, et al., G.R. No. 125447 and H.L. Carlos Construction, Inc. v. Court of Appeals, et al., G.R. No. 125475, prom. August 14, 1998) A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (last par., Sec. 2, Rule 37, ROC) NOTES AND COMMENTS: a. Pro forma motion for reconsideration, defined. One that does not specify the findings or conclusions in the judgment which are not supported by evidence or contrary to law, making express reference to the pertinent evidence or legal provisions (Marina Properties Corporation v. Court of Appeals, et al., G.R. No. 125447 and H.L. Carlos Construction, Inc. v. Court of Appeals, et al., G.R. No. 125475, prom. August 14, 1998), alleged to be contrary to such findings or conclusions. (3rd par., Sec. 2, Rule 37, ROC) b. Not pro forma even if motion reiterates issues already passed upon by the court: 1) Although a motion for reconsideration may merely reiterate issues already passed upon by the court, that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the Rules. (Marina Properties Corporation v. Court of Appeals, et al., G.R. No. 125447 and H.L. Carlos Construction, Inc. v. Court of Appeals, et al., G.R. No. 125475, prom. August 14, 1998) 2) Among the ends to which a motion for reconsideration is addressed is precisely to convince he court that its ruling is erroneous and improper, contrary to law or the evidence, and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new trial. Such is not the intendment of the Rules. (Marina, supra) 3) Where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. The doctrine relating to pro forma motions has a direct bearing upon the movant's valuable right to appeal. It would be in the interest of justice to accord the appellate court the opportunity to review the

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decision of the trial court on the merits rather than to abort the appeal by declaring the motion pro forma, such that the period to appeal was not interrupted and had consequently lapsed. (Marina, supra citing 1 Florenz D. Regalado, Remedial Law Compendium 380 (6th ed., 1997). 4) Under Supreme Court Circular No. 1-91 dated 27 February 1991 and Revised Administrative Circular No. 1-95 dated 16 May 1995, which took effect on 1 June 1995, an aggrieved party is allowed one motion for reconsideration of the assailed decision or final order before he may file a petition for review with the Court of Appeals. (Marina, supra) ***169. How is appeal perfected ? SUGGESTED ANSWER: a. If by notice of appeal. A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. The court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of other parties. b. If by record on appeal. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. The court loses jurisdiction only over the subject matter of the appeal upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. (Sec. 9, Rule 41, ROC) NOTES AND COMMENTS: a. Payment of appellate docket fee mandatory. The Rules of Court, as amended, specifically provides that appellate court docket and other lawful fees should be paid within the period for taking an appeal. Hence, Section 4 of Rule 41. The payment of the docket and other legal fees within the prescribed period is both mandatory and jurisdictional. Section 1 (c), Rule 50 of the Rules of Court provides: Failure of the appellant to pay the docket and other fees as provided in Section 4 of Rule 41 is a ground for the dismissal of the appeal. Indeed, it has been held that failure of the appellant to conform with the rules on appeal renders the judgment final and executory. Verily, the right to appeal is a statutory right and one who seeks to avail of that right must comply with the statute or the rule. The bare invocation of the interest of substantial justice is not a magic wand that will automatically compel the Supreme Court to suspend procedural rules. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a partys substantive right. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. Rules of procedure, especially those prescribing the time within which certain acts must be done, have oft been held as absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of business. x x x The reason for rules of this nature is because the dispatch of business by courts would be impossible, and intolerable delays would result, without rules governing practice x x x. Such rules are a necessary incident to the proper, efficient and orderly discharge of judicial functions. The said rules may be relaxed only in exceptionally meritorious cases. (Lazaro, et al., v. Court of Appeals, et al., G.R. No. 137761 prom, April 6, 2000) It is well established doctrine that the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. This is so because a court acquires jurisdiction over the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court. In Gegare v. Court of Appeals, the Supreme Court upheld the appellate courts dismissal of an appeal for failure of petitioner to pay the docket fees within the reglementary period despite a notice from the Court of Appeals informing him that such fees had to be paid within fifteen (15) days from receipt of such notice. (Barangay 24 of Legazpi City represented by Bgy, Chairman Ricardo Abunda v. Elias Imperial, G.R. No. 140321, prom. August 24, 2000) b. Litigants cannot raise issue for the first time on appeal, exception: Although litigants cannor raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice, in a number of instances, the Supreme Court has relaxed observance of

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procedural rules, noting that technicalities are not ends in themselves but exist to protect and promote substantive rights of litigants. Certain rules ought to be applied with severity and rigidity if by so doing, the very reason for their existence would be defeated. Hence, when substantial justice plainly requires, exempting a particular case fro the operation of technicalities should not be subject to cavil. (Sy v. Court of Appeals, et al., G.R. No. 127263, prom. April 12, 2000) c. Material data rule. The rule to the effect that the petition shall state the specific material dates showing that it was filed within the period fixed herein, should be taken to refer more particularly to the date of receipt of the award, judgment, final order or resolution appealed from for the purpose of determining whether or not the appeal or petition was reasonably brought up to the appellate body or tribunal. (Romero v. Civil Service Commission, G.R. No. 139288, prom., February 28, 2000) d. Appeal in contempt does not require record on appeal. In the case of Roman Catholic Archbishop of Manila v. Court of Appeals, multiple appeals are allowed in special proceedings, in actions for recovery of property with accounting, in the special civil action of eminent domain and foreclosure of mortgage, contempt proceedings is not one of those instances where a record on appeal is required to perfect an appeal. (Cortes v. Judge Bangalan, etc. A.M. No. MTJ-97-1129, prom. January 19, 2000) e. Certified true copy of questioned judgment, final order or resolution. Under Rule 45, of the Rules of Court (governing Appeals by Certiorari to the Supreme Court), only the judgment or final order or resolution accompanying the petition must be a clearly legible duplicate original or a certified true copy thereof certified by the clerk of court of the court a quo. Even under Rule 65 governing certiorari and prohibition, petitions need be accompanied by certified true copies of the questioned judgment, it being sufficient that copies of all other relevant documents should accompany the petition. Numerous resolutions issued by this court emphasize that in appeals by certiorari under Rules 45 and original civil actions for certiorari under Rule 65 in relation to Rules 46 and 56, what is required to be a certified true copy is the copy of the questioned judgment, final order or resolution. No plausible reason suggests itself why a different treatment, i.e. a stricter requirement, should be given to petitions under Rule 43, which governs appeals from the Court of Tax Appeals and quasi-judicial agencies to the Court of Appeals. None could have been intended by the framers of the Rules. A contrary ruling would be too harsh and would not promote the underlying objective of securing a just, speedy and inexpensive disposition of every action and proceeding. It must be conceded that obtaining certified true copies necessarily entails additional expenses that will make litigation more onerous to the litigants. Moreover, certified true copies are not easily procurable and party litigants must wait for a period of time before the certified true copies are released. At any rate, the entire records of the case will eventually be elevated to the appellate court. (Cadayona v. Court of Appeals, et al., G.R. No. 128772, prom. February 3, 2000) f. After perfection of the appeal and the transmittal of the records, the trial court loses jurisdiction over the case. Henceforth, it may no longer grant a motion for, or issue a writ of immediate execution. To do so would be an abuse of discretion. (Sec. 2 and 3, Rule 39 cited in Diesel Construction Co. Inc. v. Jollibee Foods Corp., G.R. No. 136805, prom. January 28, 2000) 170. Spouses Morales filed a complaint against Policarpio asserting that he surreptitiously took possession of their lots and prepared them for planting, thereby altering its residential outline and appearance. Defendant countered with the allegation that reclassification of the land was not approved by the proper authorities and that he was duly constituted as tenant thereof by the previous owner. The municipal trial court received evidence on the issue of right of possession and he land's proper classification. Finding the land to be agricultural and the fact that tenancy was in issue, the municipal trial court dismissed the case for lack of jurisdiction. The plaintiffs appealed to the Regional Trial Court who heard the case and found that the municipal trial court had jurisdiction because the land was duly reclassified from agricultural to residential and that tenancy was not involved. If you were the RTC judge how will you proceed ? Should you decide the issues on the merits or should you remand the case to the municipal trial court for further proceedings ?

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SUGGESTED ANSWER: The case should be decided on the merits and should not be remanded to the municipal trial court. Where the parties have presented their respective evidence before the MTC, a remand becomes a useless superfluity, an undue imposition on the time and dockets of courts. NOTES AND COMMENTS: A remand is necessary only when there has been no trial on the merits. A remand would unnecessarily impose on the parties the concomitant difficulties and expenses of another proceeding where they would have to present the same evidence again. This clearly runs counter to Section 6, Rule 1 of the Rules of Court, which mandates liberal construction of the Rules to attain just, speedy and inexpensive disposition of every action or proceeding. (Spouses Morales v. Court of Appeals, et al., G.R. No. 126196, prom. January 28, 1998)

AP PEAL FR OM MT C T O RTC APPELLATE JURISDICTION OF REGIONAL TRIAL COURT

171. How may decisions of Regional Trial Courts rendered in aid of its appellate jurisdiction be appealed ? S UGGESTED ANSWER: The decision of Regional Trial Courts on such cases shall be appealable by petition for review to the Court of Appeals which Nay give it due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed. (last sentence, Sec. 22, B.P. Blg. 129)

MODES AND PERIODS OF APPEAL

MODES AND PERIODS OF APPEAL. a. Appeal from Municipal Trial Court to Regional Trial Court 1) Appeal in ordinary cases: a) Filing notice of appeal with the Municipal Trial Court that rendered the judgment or order appealed from. (Sec. 3, Rule 40, ROC) b) Payment of the full amount of the appellate docket fee and other lawful fees. (Sec. 5, Rule 40, ROC) c) Within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. (Sec. 2, Rule 40, ROC) 2) Appeal in special proceedings and other cases wherein multiple appeals are allowed: a) Filing of notice of appeal and a record on appeal with the Municipal Trial Court that rendered the judgment or order appealed from. (Sec. 3, rule 40, ROC) b) Payment of the full amount of the appellate docket fee and other lawful fees. (Sec. 5, Rule 40, ROC) c) Within thirty (30) days after notice of the judgment or final order appealed from. (Sec. 2, Rule 40, ROC) 3) Appeal in cases decided under delegated jurisdiction. In the same manner as decisions of the Regional Trial Court. (Sec. 34, B.P. Blg. 129) ***172. What procedure should the RTC follow where it finds that the MTC had no jurisdiction in a case appealed to it from the said MTC ? SUGGESTED ANSWER: a. In case of affirmance of the decision or judgment appealed from and the ground of dismissal 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. (2nd sentence, 1st par., Sec. 8, Rule 40, ROC words not in bold supplied) b. 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 on the merits as of the case was originally filed with

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it, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (2nd par., in relation to the 1st par., Sec. 8, Rule 40, ROC) ***173. Conchita sued Beltran et al., for unlawful detainer. The MTC rendered judgment in her favor ordering Beltran et al., to vacate, pay reasonable rental and attorneys fees. Beltran, et al., appealed to the RTC. The MTC judgment was executed pending appeal because Beltran, et al. failed to file supersedeas bond. Beltran, et al., moved the RTC to admit additional evidences consisting of a contract to sell between them and its Quezon City government covering the lot in dispute, and some receipts of payment, which the RTC granted. The RTC also conducted seven clarificatory hearings during which the parties presented testimonial evidences, as well as conducted an ocular inspection of the disputed premises. Thereafter, the RTC rendered judgment reversing the MTC decision, ruling that Conchita has no interest to the disputed property. The RTC then dismissed her complaint. Conchita filed a petition for certiorari with the Court of Appeals which denied the petition and restored possession to Beltran, et al. Was the RTC correct in reversing the MTC? What about the CA in restoring possession to Beltran, et al.? Explain briefly. SUGGESTED ANSWERS: No, the RTC was in error. RTC in exercise of appellate jurisdiction could not hear cases de novo. RTC in the exercise of its appellate jurisdiction, cannot hear the case de novo in the guise of clarificatory hearings during which additional evidence is to be presented by the parties and on ocular inspection conducted. The Court of Appeals erred in granting private respondents motion for execution pending appeal. For, indeed, the case was not with said court on appeal but on a petition for certiorari. Thus, the appellate court' jurisdiction was only to pass upon the validity of the orders of the RTC in the conduct of clarificatory hearings and ocular inspection. Since the RTC has yet to act on private respondent' motion for execution pending appeal, this matter should have been left for resolution by the trial court, not by the Court of Appeals. (Abellera v. Court of Appeals, et al., G.R. No. 127480, prom. February 28, 2000) NOTES AND COMMENTS: Although Regional Trial Courts should decide cases on appeal on the basis solely of the record of the proceedings in Municipal Trial Courts and other courts of equal rank, nonetheless, the principle of estoppel may bar a party from questioning the reception of additional evidence, as in this case. In Tijam v. Sibonghanoy, this court ruled: A party can not invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean v. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of explaining the rule, it was further said that the question whether the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjustment, but for the reason that such a practice can not be tolerated obviously for reasons of public policy. Furthermore, it has been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease v. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. v. McBride, 141 U.S. 127, 35 L. Ed. 659) And in Littleton v. Burgess, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty. Upon the principle stated in Sibonghanoy, we hold that petitioner cannot be permitted to question at this stage the reception of additional evidence and ocular inspection of property after she participated but eventually lost in what she now calls the irregular proceedings of the trial court. (Abellera v. Court of Appeals, et al., G.R. No. 127480, prom. February 28, 2000) Injunction should not issue to restrain the decision in unlawful detainer. In Legaspi, the Supreme Court held: Where the action is one of illegal detainer and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of confusion and disturbance of physical possession, with all its concomitant inconvenience and expense for the court in which the issue of legal possession,, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful

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detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership. (Aznar Brothers Realty Co. v. Court of Appeals, et al., G.R. No. 128102, prom., March 7, 2000) ***173-A. In Republic v. Garcellano, 103 Phil. 231, the Supreme Court affirmed the decision of the CFI of Zamboanga City expropriating 280,885 sq. m. of land that is now part of the Zamboanga Intl. Airport. On February 17, 1996, acting on the basis of a reconstituted title, the alleged heirs of Jun Ledesma, a defendant in expropriation case (Republic v. Garcellano) forcibly entered the property and caused the building of a concrete wall separating the property from the rest of the airport. Consequently, the government filed a complaint for forcible entry, but the MTC dismissed the case. On appeal, RTC, Branch 17, reversed the decision. Since the defendants did not appeal, the RTC decision became final. In the meantime, the heirs-defendants filed a complaint for accion publiciana, alleged that the government did not pay them just compensation, the property was not being used for the purpose for which they were expropriated, they were in possession, titles to same were in their names, no res judicata because there are other parties, etc. The case was raffled to RTC, Branch 13. The government moved to dismiss the complaint. Instead of resolving that motion, Branch 13 issued a TRO dated November 18, 1997 directing the MTC to cease and desist from enforcing the forcible entry case decision. On December 16, 1997, the court issued a writ of of preliminary injunction explaining that while the forcible entry case had become final and executory, the claim of ownership of the land and actual occupation thereof by the heirs (aside from the fact that they had not yet been compensated for the appropriated land), demanded stay of execution. Was RTC, Branch 13 correct in issuing the injunctive writ? If not, what should be the remedy of the heirs-defendants? SUGGESTED ANSWER: No. Although the injunctive writs issued by RTC, Branc 13 were directed to the MTC, the same had the ultimate effect of preventing the execution of the decision of the RTC, Branch 17, a court of equal rank and jurisdiction. The remedy of the heirs-defendants should have been to oppose the issuance of a writ of execution by the MTC on these grounds, instead of asking RTC, Branch 13 to issue a TRO or a writ of preliminary injunction. (Actg. Solgen de la Cruz v. Judge Eisma, etc. A.M. No. RTJ-001544, prom. March 15, 2000)

AP PEAL FR OM T HE RTC TO C A APPELLATE JURISDICTION OF COURT OF APPEALS

174. What is the appellate jurisdiction of the Court of Appeals over decisions of Regional Trial Courts ? SUGGESTED ANSWER: The Court of Appeals shall exercise : a. Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and b. Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts. (Sec. 9, B.P. Blg. 129 paraphrasing supplied) 175. What may not be appealed ? SUGGESTED ANSWER: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) 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; (f) An order of execution; (g) 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

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(h) An order dismissing an action without prejudice. (2nd par., Sec. 1, Rule 41, ROC) NOTES AND COMMENTS: a. Remedy where the judgment, order, etc., is not appealable: Where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (last sentence, Sec. 1, Rule 41, ROC) b. What may be appealed: An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter herein when declared by the Rules of Court to be appealable. (1st par., Sec. 1, Rule 41, ROC A judgment or order denying relief under Rule 38 is final and appealable, unlike an order granting such relief which is interlocutory. Hence, jurisdiction then properly belonged to the Court of Appeals. (Service Specialists, Inc. v. Sheriff of Manila , 145 SCRA 139) Relief of judgment; a unique remedy; allowed only in exceptional cases.- The issue of jurisdiction aside, the Supreme Court has emphasized that a petition for relief from judgment is a unique remedy in the sense that it is based on the principle of equity and constitutes the petitioners final chance to prosecute or defend his cause. Being an act of grace, a petition for relief from judgment is usually not regarded with favor and thus, is allowed only in exceptional cases where there are no other adequate and available remedies. (Basco y Salao v. Court of Appeals and the People of the Philippines, G.R. No. 125290, prom. August 9, 2000) ***c. Denial of motion for reconsideration not appealable. The failure to perfect an appeal within the reglementary period is not a mere technicality. It raises a jurisdictional problem as it deprives the appellate court of jurisdiction over the appeal. The failure to file the notice of appeal within the reglementary period is akin to the failure to pay the appeal fee within the prescribed period. In both cases, the appeal ***176. How are appeals taken from the Regional Trial Court to the Court of Appeals ? SUGGESTED ANSWER: 1) Appeal in ordinary cases: a) Filing of notice of appeal with the Regional Trial Court that rendered the judgment or order appealed from. (Sec. 2 [a], Rule 41, ROC) b) Payment of the appellate docket fee and other lawful fees to the Regional Trial Court. (Sec. 4, Rule 41, ROC) c) Within fifteen (15) days from notice of the judgment or final order appealed from. (Sec. 3, Rule 41, ROC) 2) Appeals in special proceedings and other cases wherein multiple appeals are allowed: a) Filing of a notice of appeal and record on appeal with the Regional Trial Court that rendered the judgment or order appealed from. (Sec. 2 [a], Rule 42, ROC) b) Payment of the appellate docket fee and other lawful fees. (Sec. 4, Rule 41, ROC) c) Within thirty (30) days after notice of the judgment or final order appealed from. (Sec. 3, Rule 41, ROC) 3) Appeals of judgments in exercise of appellate jurisdiction: a) Filing of verified petition for review with the Court of Appeals. (Sec. 1, Rule 42, ROC) b) Payment of docket and other lawful fees and deposit of P500.00 for costs. (Sec. 1, Rule 42, ROC) c) Within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after judgment. d) Additional period of fifteen (15) days, only after motion for extension, payment of docketing and other lawful fees and further extension of fifteen (15) days only for the most compelling reasons. (Sec. 1, Rule 42, ROC)

AP PEAL FR OM C TA, Q UASI- JU DICIAL AGEN CIES TO CA

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177. How are appeals taken from the Court of Tax Appeals and quasi-judicial agencies to the Court of Appeals ? SUGGESTED ANSWER: Appeals from the Court of Tax Appeals and quasi-judicial agencies like the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, national Electrification Administration, Entergy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, GSIS, Employees compensation commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission and voluntary arbitrators authorized by law to the Court of Appeals: 1) Appeal through verified petition for review filed with the Court of Appeals. (Sec. 5, Rule 43, ROC) 2) Payment to clerk of court of the Court of Appeals the docketing and other lawful fees and P500.00 deposit for costs. (Sec. 5, Rule 43, ROC) 3) Within fifteen (15) days from notice of award, judgment, order or date of last publication if required. (Sec. 4, Rule 43, ROC) 4) Additional time of fifteen (15) days only may be granted after motion for extension, payment of docket and other lawful fees and deposit for costs and further extension for the most compelling reasons and in no case to exceed fifteen (15) days. (Sec. 4, Rule 43, ROC)

AP PEAL TO T HE S UP REM E C OUR T

***178. How is an appeal by certiorari taken to the Supreme Court ? SUGGESTED ANSWER: Appeal from the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law to the Supreme Court: 1) Appeal only through verified petition for review on certiorari raising only questions of law and filed with the Supreme Court. (Sec. 1, Rule 45, ROC) 2) Payment of docket fee and other lawful fees to the clerk of court of the Supreme Court with deposit of P500.00 for costs. 3) Within fifteen (15) days from notice of the judgment or order appealed from, or of denial of petitioner's motion for new trial or reconsideration filed in due time after notice of judgment. 4) Extension to file petition for a period of thirty (30) days only may be granted for justifiable reasons, on motion duly served and with full payment of docket and other lawful fees and deposit for costs. (Sec. 2, Rule 45, ROC) NOTES AND COMMENTS: a. Scope of the review by the Supreme Court in a petition for review on certiorari as a mode of appeal under Rule 45 of the Rules of Court. Only those errors committed by the Court of Appeals and not by the trial court. Futhermore, only questions of law may be raised and passed upon. Absent any whimsical or capricious exercise of judgment, and unless the lack of any basis for the conclusions made by the lower courts be amply demonstrated, the Supreme Court will not disturb their findings. (Tanedo, et al., v. Court of Appeals, et al., G.R. No. 104482, prom. January 22, 1996) 179. The general rule is that factual findings of the lower courts are final and conclusive and not subject to review by the Supreme Court under Rule 45 of the Rules of Court. State the exceptions to this general rule: SUGGESTED ANSWER: The following are the exceptions: a. When the inference made is manifestly mistaken, absurd or impossible; b. Where there us grave abuse of discretion; c. When he finding is grounded entirely on speculation, surmises or conjectures; d. When the judgment of the Court of Appeals is based on misapprehension of facts; e. When the findings of fact are conflicting; f. When the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of the appellant and the appellee; g. When the findings of facts are conclusions without citation of specific evidence on which they are based;

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h. When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and i. When the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. (Villanueva v. Court of Appeals, et al., G.R. No. 127997, prom. August 7, 1998)

EX EC UTI ON S, IN G ENE RAL EXECUTIONS, IN GENERAL

180. In Civil Case No. D-8835, Pacita entered into a judicially approved compromise agreement with the spouses Pinlac, whereby the spouses bound themselves to pay P160,000.00 in eighty (80) equal installments of P2,000.00 subject to the condition that failure to pay two (2) installments would render the outstanding amount due and payable. Subsequently, for failure of the Pinlac spouses to pay two installments as stipulated in the compromise agreement, Pacita filed with the court a motion for the issuance of a writ of execution alleging that the spouses paid her only P2,500.00 and then failed to pay the remaining amounts. She then demanded execution in the amount of P57,500.00 as unpaid balance, which motion was granted. Subsequently, Pacita requested the Clerk of Court for the amendment of the writ to execution to show the correct amount of P 157,500.00. The Clerk of Court without prior order of from the court granted the request and issued an amended writ increasing the amount fromP57,500.00 to P157,500.00. Comment on the actuation of the Clerk of Court in issuing the amended writ. SUGGESTED ANSWER: By amending the writ of execution the Clerk of Court clearly usurped a judicial function. No one but the court can amend what was granted, and its Clerk of Court has no other duty but to issue the writ in accordance with the grant. It is settled principle that a writ of execution should conform strictly with the very essential particulars of the promulgated judgement (Ex-Bataan Veterans Security Agency, Inc. v. NLRC, 250 SCRA 418) or, in the present case, with the order granting execution of a judgment based on a compromise agreement. Only the judge is vested with authority to amend such order. (Viray v. Court of Appeals, et al., G.R. No. 120760, prom. February 24, 1998) There was no such amendment of the order in the case at bar which would provide a solid basis for the alteration of the writ. (Viray, supra) 181. Does the court have authority to amend judgments which are not yet final ? SUGGESTED ANSWER: Yes. A court has the inherent power to amend and control its process and orders so as to make them conformable to law and justice (Sec. 5 [g], Rule 135, ROC), and when it finds that the ends of justice would be better served, the court may disregard technicalities and amend its order or process that has not become final. Villanueva v. CFI of Oriental Mindoro, 119 SCRA 288) NOTES AND COMMENTS: a. Instances where a court has authority to amend judgments that are already final: Clerical errors or mistakes or omissions plainly due to inadvertence or negligence may be corrected or supplied after the judgment has been entered. (Presbiterio v. Court of Appeals, et al., 129 SCRA 450, 451) Where there is an ambiguity caused by an omission or mistake in the dispositive portion of a decision the court may clarify such ambiguity by an amendment even after the judgment had become final, and for this purpose it may resort to the pleadings filed by the parties, the court's findings of facts and conclusions of law as expressed in the body of the decision. (Presbiterio v. Court of Appeals, et al., 129 SCRA 450, 451) b. Mode for elevating validity of execution of final and executory judgments: In exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may either be by appeal, writ of error or certiorari, or by a special civil action of certiorari, prohibition or mandamus. (Limpin, Jr., et al., v. Intermediate Appellate Court, et al., 147 SCRA 522, 523)

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***182. What is the remedy where an executed judgment was reversed but the funds were already garnished ? Explain briefly. SUGGESTED ANSWER: In case the executed judgment is reversed, the Supreme Court instead of ordering the judgment creditor to return funds that have been improperly garnished pursuant to an order of execution pending appeal, directed the judgment debtor to proceed against the bond filed by the judgment creditor. (BF Corporation v. ESDA Shangri-La Hotel, etc., et al., G.R. No. 132655, prom. August 11, 1998) This is supported by Rule 39, Sec. 5 of the 1997 Rules of Civil Procedure which provides that, where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. As garnishment is a specie of attachment, the procedure provided in Rule 57, Section 20 of the Rules of Court for the recovery of damages against a bond in case of irregular attachment should be applied. This means that notice should be given to the surety and that there should be a hearing before it is held liable on its bond. (BF Corporation, supra )

EXECUTION AS A MATTER OF RIGHT

***183. When shall execution issue upon judgments or final orders ? SUGGESTED ANSWER: a. Execution shall issue as a matter of right, on motion upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. b. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. c. The appellate court may, on motion in the same case, when the interest of justice, direct the court of origin to issue the writ of execution. (Sec. 1, Rule 39, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Instances when execution issues as a matter of right: 1) Execution shall issue as a matter of right, on motion upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. (1st par., Sec. 1, Rule 39, ROC) 2) If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. (2nd par., Ibid.) 3) Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. (1st sentence, 1st par. Sec 4, Rule 39, ROC arrangement and numbering supplied) 4) In forcible entry and unlawful detainer, If judgment is rendered against the defendant, execution shall issue immediately upon motion unless the defendant complies with the requisites for staying execution. (Sec. 19, Rule 70, ROC) 5) In forcible entry and unlawful detainer, The judgment of the Regional Trial Court in aid of its appellate jurisdiction against the defendant shall be immediately executory, without prejudice to a further appeal to the Court of Appeals or Supreme Court that may be taken therefrom. (Sec. 21, Rule 70) b. When interlocutory order may be enforced by execution: An order granting support pendente lite, although interlocutory, may be enforced by execution. (Sec. 1, Rule 61, ROC) ***184. Distinguish a final judgment from a judgment that has become final and executory.

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SUGGESTED ANSWER: A "final judgment" becomes final upon the expiration of the period to appeal therefrom if no appeal has been duly perfected (Sec. 1, Rule 39, ROC), or an appeal therefrom having been taken, the judgment of the appellate tribunal in turn becomes final and the records of the case are returned to the court of origin. The "final judgment" is then correctly categorized as a "final and executory judgment" in respect to which, as the law explicitly provides, Execution shall issue as a matter of right (Sec. 1, Rule 39, ROC),. It bears stressing that only a final judgment or order, i.e. a judgment or order that disposes of the action of proceeding can become final and executory. (Investments, Inc. v, Court of Appeals, et al., 147 SCRA 341)

DISCRETIONARY EXECUTION
***185. How may discretion execution or execution pending appeal be availed of ? SUGGESTED ANSWER: a. On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. b. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. c. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (Sec. 2 [a], Rule 39, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Execution of several, separate or partial judgments: A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (Sec. 2 [b], Rule 3, ROC) b. When motion for execution pending appeal of discretionary execution filed: 1) While the trial court has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. 2) After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. (1st and 2nd pars., Sec. 2 [a], Rule 39, ROC arrangement and numbering supplied) c. Grounds for issuing execution pending appeal or discretionary execution: Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (last par., Sec. 2 [a], Rule 39, ROC) ***d. Good reasons for execution pending appeal: 1) Where the judgment is for the necessary support of an heir (People's Bank v. San Jose, 96 Phil. 895); b. Where the education of the person to be supported would be unduly delayed if financial assistance is to be rendered only after termination of the appeal. (Javier v. Lucero, 94 Phil. 634) c. when the appeal is being taken for the purpose of delay (Presbiterio v. Rodas, 73 Phil. 300); d. When there is danger of the judgment becoming ineffectual because the judgment debtor, a foreign corporation, is withdrawing its business from the country (Scottish Union etc., v. Macadaeg, et al., 91 Phil. 891); and e. When advance execution of an order authorizing the removal of a regular administrator is necessary to protect the estate from mismanagement. (Cotia v. Pecson, 93 Phil. 881) e. Grounds that could NOT JUSTIFY issuance of execution pending appeal: 1) Actual and immediate danger of insolvency. (BF Corporation v. EDSA Shangri-La Hotel, etc., et al., G.R. No. 132655, prom. August 11, 1998) Even the danger of extinction of prevailing the corporation will not per se justify a discretionary execution unless there are showings of other good reasons, such as for instance, impending insolvency of the adverse party or the appeal being patently dilatory. But even so, it is not for the trial judge to determine the merit of a decision he rendered as

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this is the role of the appellate court. Hence it is not within the competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as its basis for finding good reasons to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal. (BF Corporation, supra) 2) Posting of a bond to answer for damages is not alone a sufficient reason for ordering execution pending appeal. (BF Corporation, supra) The filing of a bond does not constitute a good reason. (Ramas, et al., v. Commission on Elections, et al., G.R. No. 130831, prom. February 10, 1998) Nevertheless, the trial court may require the filing of a bond as a condition for the issuance of a corresponding writ of execution to answer for the payment of damages which the aggrieved party may suffer by reason of the execution pending appeal. (Ramas, et al., supra) f. Remedy if execution pending appeal is improper. Certiorari is the proper remedy where the grant of execution pending appeal is not founded upon good reasons. Appeal is not a speedy and adequate remedy that can relieve the losing party from the immediate effects of an improvident execution pending appeal. (BF Corporation v. ESDA Shangri-La Hotel, etc., et al., G.R. No. 132655, prom. August 11, 1998) g. Stay of discretionary execution: 1) Discretionary execution issued 2) may be stayed upon approval by the proper court of a sufficient supersedeas bond 3) filed by the party against whom it is directed, a) conditioned upon the performance of the judgment or order allowed to be executed b) in case it shall be finally sustained in whole or in part. c) The bond thus given may be proceeded against on motion with notice to the surety. (Sec. 3, Rule 39, ROC arrangement and numbering supplied) 186. What should be done to stay the execution in unlawful detainer or forcible entry cases during the pendency of an appeal before the Regional Trial Court ? SUGGESTED ANSWER: An appeal is perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed on favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from. (Sec. 19, Rule 71, ROC)

PROCEDURE FOR EXECUTION AND SATISFACTION OF JUDGMENT

***187. When may a judgment be executed by mere motion ? SUGGESTED ANSWER: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. (1st sentence, Sec. 6, Rule 39, ROC) 187-A. What is the concept of a dormant judgment ? SUGGESTED ANSWER: A dormant judgment is one which has not been enforced by action within five (5) years after its entry and is, therefore, reduced to a mere right of action in favor of the judgment-creditor. It may be enforced by action. (Salvante v. Ubi Cruz, 88 Phil. 236) NOTES AND COMMENTS: a. Exceptions to the dormant judgment rule or instances where execution may be had on mere motion despite the lapse of the firve year period. 1) Judgment for support which does not become dormant, nor does it prescribe, except as to installments not collected during the period fixed by the statute of limitations, and it is enforceable by motion at any time. (Florendo v. Organo, 90 Phil. 483) Furthermore, since the obligation is a continuing one, the court never loses jurisdiction to enforce the same. (Canonizado v. Benitez, et al., 127 SCRA 616) 2) Upon meritorious grounds or upon equity. Thus, if the delays were through no fault of the prevailing party, the delays should not be included in computing the five (5)

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year period. (Camacho v. Court of Appeals, et al., G.R. No. 118339, prom. March 19, 1998) The exceptions have one common denominator, and that is the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or advantage. (Ibid) 188. When a judgment be executed by action ? SUGGESTED ANSWER: After the lapse of five (5) years from date of its entry, and before it is barred by the statute of limitations, a judgment may be enforced by action. (2nd sentence, Sec. 6, Rule 39, ROC) NOTES AND COMMENTS: a. Nature of action. The action for enforcement of a dormant judgment is an ordinary civil action, the object of which is two-fold, namely: 1) To revive the dormant judgment; and 2) To execute the judgment reviving it, if it grants the plaintiff any relief. Hence, the rights of the judgment-creditor depend upon the second judgment. Being an ordinary civil action, it is subject to all defenses, objections and counterclaims which the judgment-debtor may have except that no inquiry can be made as to the merits of the first judgment. Therefore, defenses that do not go to the merits of the first judgment, such as lack of jurisdiction, collusion, fraud, prescription, or satisfaction of the judgment, may be set-up by the judgment-debtor. (Salvante v. Ubi Cruz, 88 Phil. 236) The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. (last sentence, Sec. 6, Rule 39, ROC)

EXECUTION IN CASE OF DEATH OF PARTY

189. How is execution effected in case of the death of a party ? SUGGESTED ANSWER: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest,if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (Sec. 7, Rule 39, ROC)

EXECUTION OF JUDGMENTS FOR MONEY

190. How is execution of judgments for money enforced ? SUGGESTED ANSWER: a. Immediate payment on demand; or b. Satisfaction by levy; or c. Garnishment of debts and credits. (Sec. 9, Rule 39, ROC)

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

191. How are judgments for specific acts executed ? SUGGESTED ANSWER: a.. Conveyance, delivery of deeds, or other specific acts vesting title; b. Sale of real or personal property; c. Delivery or restitution of real property; d. Removal of improvements on property subject of execution; e. Delivery of personal property. (Sec. 10, Rule 39, ROC)

EXECUTION OF SPECIAL JUDGMENTS

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192. How are special judgments executed ? SUGGESTED ANSWER: A certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is entered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (Sec. 11, Rule 39, ROC)

PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON

***193. What proceedings are to be undertaken where the property is claimed by a third person ? SUGGESTED ANSWER: If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless he action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property , to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. (1st and 2nd pars., Sec. 16, Rule 39, ROC)

REDEMPTION OF PROPERTY SOLD ON EXECUTION

194. What is meant by the right of redemption ? SUGGESTED ANSWER: The right of a judgment debtor or redemptioner to buy back from the purchaser of the proper sold at public auction by virtue of a writ of execution at anytime within the reglementary period. NOTES AND COMMENTS: Redemption may be made in by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed as a redemptioner.

REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION

***195. What remedies may be availed of by a judgment creditor in aid of execution ? SUGGESTED ANSWER: a. If execution is returned unsatisfied, he may cause examination of the judgment-debtor as o his property and income (Sec. 36, Rule 39, ROC); b. He may cause examination of the debtor of the judgment-debtor as to any debt owed by him to the judgment-debtor or as to any other property of the judgment-debtor in his possession (Sec. 37, Ibid.); c. If after examination the court finds that there is property of the judgment-debtor either in his own hands or in that of any other person, the court may order the property applied to the satisfaction of the judgment (Sec. 40, Ibid.); d. If the court finds that the earnings of the judgment-debtor are more than sufficient for his family's needs, it may order payment of the judgment in installments (Ibid.); e. The court may appoint a receiver for property of the judgment-debtor not exempt from execution, or forbid a transfer or other disposition of or interference with such property (Sec. 41, Rule 39, ROC);

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f. If the court finds that the judgment-debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest (Sec. 42, Ibid.(; g. If the person alleged to have property of the judgment-debtor or to be indebted to him claims an adverse interest in the property, or denies the debt, the court may authorize the judgment-creditor to institute action to recover the property, forbid transfer of the property until the action can be commenced and prosecuted to judgment, and may punish disobedience of such order as contempt (Sec. 43, Ibid.)

SATISFACTION OF JUDGMENT
196. How shall the writ of execution be returned ? SUGGESTED ANSWER: The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion,. the officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken and shall be filed with the court and copies thereof promptly furnished the parties. (Sec. 14, Rule 39, ROC)

PROVISIONAL REMEDIES
TH E PR OVISIO NAL REM EDIES
PRELIMINARY ATTACHMENT PRELIMINARY INJUNCTION RECEIVERSHIP REPLEVIN SUPPORT PENDENTE LITE

PR ELIMIN AR Y A TT ACH MEN T

***197. X sued Y for a sum of money. Y is leaving the Philippines with intent to defraud creditors. Hence, X applied for and was granted ex-parte a writ of preliminary attachment which was immediately implemented by the sheriff. Y now moves to discharge the attachemtn because it was issued and implemented prior to service of summons. On the other hand, X quotes Sec. 2, Rule 57, which provides that, an order of attachment may be issued either ex-parte or upon motion with notice and hearing by the court in which the action is pending xxx He likewise adverts to Sec. 1 of the same Rule which provides that, At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered xxx Finally, he contends that the subsequent service of summons cured any infirmatiies that may have attended the issuance and implementation of the writ. Rule on the motion to discharge the attachment. Explain briefly. SUGGESTED ANSWER: The motion to discharge the attachment is granted. The issuance of the writ of attachment prior to service of summons was valid, but the same must be implemented together with or after service of the summons. The subsequent service of summons does not cure the defect of failure to serve the sumons at the time of the implementation of the writ. NOTES AND COMMENTS: a. Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

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a) In an action for the recovery of a specified amount of money, other than moral and exemplary, on a cause of action earising from law, contract, quas-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; b) COPY (Sec. 1, Rule 57, Rules of Court)

PR ELIMIN AR Y I NJU NC TIO N RE CEIV ERS HIP RE PLEVI N

It is sufficient to prove the plaintiffs entitlement to the legal possession only and not necessarily ownership. (National Power Corporation v. Court of Appeals, et al., G.R. No. 122195, prom. July 23, 1998) To detain in replevin cases means, "To hold or keep in custody." There is tortious taking whenever there is an unlawful meddling with the property, or an exercise or claim of dominion over it, without manual seizing of the property. (Paat v. Court of Appeals, et al., 266 SCRA 185) ***198. A owns an antique wood carving valued at P350,000.00 which he lent to B for exhibition during the inauguration of the latters art gallery. After the inauguration, B brought the painting to his house in Quezon City where he hung it in his sala. Despite As numerous demands for the return of the painting B refused. If you were As attorney, what legal steps would you take to protect the interest of A and in what court should you bring the suit ? SUGGESTED ANSWER: I would bring a suit for the recoveru of the wood carving with a prayer for an order for the delivery of the property to A. I would file the case before the RTC since the action is one which not capacble of pecuniary estimation. NOTES AND COMMENTS: a. Requirements to support an application for replevin. The applicant must show by his own affidavit or that of some other person who personally knows the facts: a) That the applicant is the owner of the property particularly describibg it, or is entitled to the possession thereof; b) That the property is wrongly detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and belief; c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party 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. C (Sec. 2, Rule 60, ROC)

SU PP OR T PE ND EN TE LITE

SPE CI AL PR OCEE DI NG S
GE NE RAL CONC EPTS SET TLEME NT OF E STATE OF DECE ASE D P ER SO NS

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GE NE RAL GUARDI AN S AN D GUARDI AN SHIP TR USTE ES AD OP TIO N AN D CUST OD Y O F MIN OR S PR OCEE DIN GS PE RSO NS FO R HOS PIT ALIZA TI ON OF INS AN E

HA BE AS COR PU S CH ANG E OF NAME VOL UN TARY D ISS OL UTI ON O F CO RP OR ATIO NS JU DICIAL APP ROVAL OF VOL UN TARY RE CO GNITI ON OF MI NO R NATU RA L C HIL DRE N CO NSTIT UTI ON O F FAMIL Y HOM E AB SE NTE ES CA NC ELLA TI ON OR COR RE CTIO N OF E NT RIES IN TH E CI VIL RE GIS TER AP PEALS IN S PE CIAL P ROC EE DIN GS

SPECIAL CIVIL ACTIONS

TH E SPE CIAL CIVIL ACTI ON S
INTERPLEADER DECLARATORY RELIEF AND SIMILAR REMEDIES REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMSSION ON AUDIT CERTIORARI, PROHIBITION AND MANDAMUS QUO WARRANTO EXPROPRIATION FORECLOSURE OF REAL ESTATE MORTGAGE PARTITION FORCIBLE ENTRY AND UNLAWFUL DETAINER CONTEMPT

INTERPLEADER DECLARATORY RELIEF AND SIMILAR REMEDIES

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REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT CERTIORARI
***199. Distinguish certiorari as a special civil action under Rule 65 from certiorari as a mode of appeal under Rule 45 of the Rules of Court. SUGGESTED ANSWER: The following are the distinctions: a. Certiorari as a special civil action is within the jurisdiction of the supreme Court, the Court of Appeals and the Regioal Trial Courts WHILE certiorari as a mode of appeal is within the jurisdiction only of the Supreme Court. b. The grounds for certiorari under Rule 65 are lack or excess of jurisdiction or grave abuse of discretion WHILE the grounds for certiorari under Rule 45 are errors of law. c. Under Rule 65 the public respondents should be hjoined WHILE under Rule 45, they need not be joined.

PROHIBITION MANDAMUS QUO WARRANTO EXPROPRIATION FORECLOSURE OF REAL ESTATE MORTGAGE PARTITION FORCIBLE ENTRY AND UNLAWFUL
200. What is the basic issue in a suit for unlawful detainer ? SUGGESTED ANSWER: Solely the issue of physical or material possession over the property or possession de facto, that is, who between the plaintiff and the defendant has a better right to possess the property in question. (Arcal, et al., v. Court of Appeals, et al., G.R. No. 127850 prom. January 26, 1998) ***201. In case of several demands in a suit for unlawful detainer when should the jurisdictional date of one year be counted ? SUGGESTED ANSWER: From the last demand. (Labastida v. Court of Appeals, et al., G.R. No. 110174, prom. March 20, 1998) 202. Could there be ejectm,ent of possessors by mere tolelrance ? Explain. SUGGESTED ANSWER: Yes. Possession by tolerance is lawful, but such possession becomes unlawful upon demand to vacate made by the owner and the possessor by tolerance refuses to comply with such demand. A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which, a summary action for ejectment is the proper remedy against him. The possessor's status is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner. In sauch case, the unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate. (Arcal, et al., Court of Appeals, et al., G.R. No. 127850, prom. January 26, 1998)

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204. Why is judgment in an unlawful detainer case immediate executory ? SUGGESTED ANSWER: To prevent further damage to the plaintiff arising from the loss of possession of the property in question. (Spouses Chua v. Court of Appeals, et al., G.R. No. 113886, prom. February 24, 1998) 205. What are the requisites to stay the immediate execution of a judgment in an unlawful detainer case ? SUGGESTED ANSWER: a. The defendant perfects his appeal; b. He files a supersedeas bond; c. He periodically deposits the rentals which become due during the pendency of the appeal. (Sec. 8, Rule 70 206. What is a supersedeas bond ? SUGGESTED ANSWER: This is a bond filed to stay the immediate execution of a judgment, in an unlawful detainer case, in favor of the plaintiff. It is equivalent to the amount of rentals, damages and costs stated in the judgment. (Spouses Chua v. Court of Appeals, et al., G.R. No. 113886, prom. February 24, 1998)

CONTEMPT

CRIMINAL PROCEDURE
(2000 Rules of Criminal Procedure) GE NE RAL CONC EPTS FL OW OF C RIMI NAL P ROC ED UR E
BEFORE PRELIMINARY INVESTIGATION. DETERMINE a. The offense 1) Designation of the offense 2) Place of commission of the offense 3) Date of commission of the offense b. Cause of the accusation c. Subsistence of right of action 1) Prescription 2) Double jeopardy d. Parties 1) Respondent 2) Private offended party e. Arrests, searches and seizures f. Rights of the accused g. Existence of cause of action 1) Prescription 2) Double jeopardy PRELIMINARY INVESTIGATION a. When conducted Penalty prescribed is at least four (4) years, two (2) months and one (1) day without regard to fine BEFORE FILING WITH THE COURT a. Doctrine of prior resort b. Alternative dispute resolution and precondition 1) Referral under Katarrungang Pambarangay c. Selection of court

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1) 2) 3) d. Pleadings 1)

Jurisdiction Venue Summary procedure Complaint /information a) Who files b) Form c) Duplicity Amendments Extinction of criminal liability Double jeopardy Witnesses Bail recommended Civil liability Provisional remedies

2) 3) 4) 5) 6) 7) 8)

FILING WITH THE COURT a. Intervention of the private offended party AFTER FILING WITH COURT BEFORE TRIAL a. Arrest b. Bail c. Motion to quash d. Arraignment and plea e. Pre-trial f. Examination of witnesses TRIAL a. Order of trial b. Consolidation c. Discharge of accused for use as state witness d. Exclusion of public e. Actg. public prosecutor AFTER TRIAL a. Motion for judgment on demurrer to evidence b. Judgment c. Motion for new trial d. Motion for reconsideration APPEAL PROBATION SERVICE OF SENTENCE

BEF OR E P RELIMI NARY INVE STIGA TIO N

IS THERE A VIOLATION OF SUBSTANTIVE PENAL LAW ? Familiar is the concept of nullum crimen, nulla peoena sine lege. There is no crime unless there is a law that punishes it. Before preliminary investigation there must first be a determination of whether or not there is a crime. Otherwise, there is no need to proceed to the preliminary investigation to determine the culpability of a person so he could be held for trial. Other considerations would be to determine the particular designation of the offense, the place and time where it was committed. Finally, there must be a determination of how the respondent committed the crime. DOES THE RIGHT OF ACTION SUBSIST ? It is likewise at this point where a determination is made whether the right to file the criminal action still subsists. Whether the

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crime or the penalty has already prescribed, or whether or not the concept of double jeopardy finds application. WHO ARE THE PARTIES ? Who is the accused and who is the private offended party, if any ? These questions must be resolved in order to know whom to call during the preliminary investigation.

SE AR CH A ND SEIZ UR E
1. What are the requisites for issuing a search warrant ? SUGGESTED ANSWER: A search warrant shall not issue but upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. (Sec. 4, Rule 126, ROC) NOTES AND COMMENTS: *** a. Instances of valid warrantless searches and seizures: 1) Search incident to a lawful arrest. A person lawfully arrested 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, Rule 126, ROC) 2) Seizure of evidence in "plain view." 3) Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectations of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 4) Consented warrantless search. 5) Customs searches. (People v. Escano, et al., G.R. Nos. 129756-58, prom. January 28, 2000) 6) Terry search: "Stop and frisk" is a "limited protective search of outer clothing for weapons." While probable cause is not required to conduct a "stop and frisk," mere suspicion or a hunch will not invalidate it. (Malacat v. Court of Appeals, G.R. No. 123595, prom. December 12, 1997; People v. Escano, et al., G.R. Nos. 12975658, prom. January 28, 2000) b. Invalid search of vehicle cured by consent of owner. (People v. Escano, et al., G.R. Nos. 129756-58, prom. January 28, 2000) Not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain exent, on mororists right to free passage without interruption, but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is nbeither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, siad routine chekcs cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. (Ibid.) c. Plain view doctrine. Objectss falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. The plain view doctrine applies when the following requisites concur: 1) the law enforcement officer in search of the evidence has a prior justification for an instrusion or is in a position from which he can view a particular area; 2) the discovery of the evidence in plain view is inadvertent; 3) it is immediiaely appratent to the officer that the item he observes may be evidence of a crime, contrabannd or otherwise subject to seizure. The law enforcemenrt officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. (People v. Doria, 301 SCRA 668, 710-711 cited in People v. Elamparo, G.R. No. 121572, prom. March 31, 2000)

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d. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commissionof the offense. The search may extend beyond the person of the one arrested to include the permissible area or surroundings within his immediate control. The lawful arrest being the sole justification for the validity of the warrantless search under the exception, the same must be limited to and circumscribed by the subject, time and place of the arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from hom are limited to dangerous weapons or anything which may be used as proof off the commission of the offense. With respect to time and place of the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid the search must be conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control. (People v. Ting, etc., G.r. Nos. 130568-69, prom. March 21, 2000) e. Authority to issue search warrant inherent in all courts. A search warrant is merely a process issued by the court in the exercise of its ancillary jurisdiction and not a criminal action which it may entertain pursuant to its original jurisdiction. The authority to issue search warrants is inherent in all courts and may be effected outside their territorial jurisdiction. (Savage, etc. v. Taypin, et al., G.R. No. 134217 prom. May 11, 2000) The Rules of Court as amended requires the certification of no forum shopping only from initiatory pleadings, omitting any mention of applications. The old Supreme Court Circular 04-94, the old rule on the matter, required such certification even from applications. The absence of such certification will not result in the dismissal of an application for search warrant. (Ibid.) *** 2. What are the requisites to be complied with before a warrantless search be considered as valid because consent was given ? Explain. SUGGESTED ANSWER: In case of consented searches or waiver of the constitutional guarantee, against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that: a. The right exists; b. The person involved had knowledge, either actual or constructive, of the existence of such right; and c. The said person had an actual intention to relinquish the right. (People v. Figueroa, et al., G.R. No. 124056, prom. July 6, 2000) NOTES AND COMMENTS: There was valid consented search where the accused accmpanied police officers to his house in order to surrender his share of the ransom money. He even brought them to his room upstairs. The consent of the owner of the house to the search effectively removed any badge of illegality, (People v. Deang, et al, G.R. No. 128045, prom. August 24, 2000) 3. A police patrol team, responding to a bomb threat received earlier, accosted a group persons standing on a corner street. They were allegedly acting suspiciously with "their eyes moving fast." As they were approached the group fled and were chased by the police. Malacat was among these persons who was chased and when caught, was searched. During the search the police reportedly found a fragmentation grenade tucked inside his front waist line. Is the seizure an incident to a lawful arrest ? SUGGESTED ANSWER: No. There is a difference between the concepts of "stop and frisk" search and of search incidental to a lawful arrest where a precedent arrest determines the validity of the incidental search. Here there could be no valid warrantless arrest in flagrante delicto nor a "hot pursuit" arrest preceding the search because of the lack of personal knowledge on the part of the arresting office or an overt physical act on the part of the accused, indicating that a crime had just been committed, was being committed, or was going to be committed. (Malacat v. Court of Appeals, G.R. No. 123595, prom. December 12, 1997)

RIG HT S OF TH E ACCU SED

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*** 4. While Andan was in custody, he was visited by the mayor and in the presence of the media confessed to having raped and killed the victim. Is the confession to the mayor and the media admissible in evidence ? Reason out your answer briefly. SUGGESTED ANSWER: Yes. The confession to the mayor is not one made under custodial investigation but a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The prohibition against self-incrimination are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. The media confessions were given free from any undue influence from the police authorities. There was no coercive atmosphere in the interview made by the reporters, neither were they acting under the direction and control of the police. Finally, the Bill of Rights does not concern itself with the relation between a private individual and another individual. It lays down limitations on governmental power to protect the individual against aggression and unwarranted interference by any department of the government and its agencies. (People v. Andan, G.R. No. 116437, prom. March 3, 1997; People v. Ordono, et al., G.R. No. 132154, prom. June 29, 2000) NOTES AND COMMENTS: a. Taking of pictures of an accused even without the assistance of counsel, being purely a mechanical act, is not a violation of the constitutional right against self-incrimination. The right proscribes the use of physical or moral compulsion to estort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as gthe accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. (People v. Gallarde, G.R. No. 133025, prom. February 17, 2000) b. Requirement for waiver of right to remain silent and to counsel. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannort afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. Authoritative interpretations of the Miranda rule as embodied in the above Art. III, Sec. 12 (1) require, however, that the crucial question is whether the accused has effectively waived the effectuation of these rights. Accused should be asked whether he was willing to testify even without the assistance of counsel. If he was willing to testify only with the assistance of counsel, he should be asked if he has one. If he said he wanted to have counsel but could not afford one, he should be asked if he wanted one appointed for him. If these questions are not asked there is no effective waiver of the rights to remain silent and to counsel. (People v. Naag, et al., G.R. No. 123860, prom. January 20, 2000) b. Rationale behind Miranda warning. An uncounseled statement is preseumed to be psycholigically coerced. Swept into an unfamiliar enviroment and surrounded by intimidating figures typical of the atmosphere of polic interrogation, the suspect really needs the guiding hand of counsel. (People v. Obrero, G.R. No. 122142, prom. May 17, 2000) c. Nature of Miranda warning. The Court has condemned as unsatisfactory advice given perfuncntorily and belonged to the stereotyped class a long question by the investigator informing the ccused of his right followed by a monosyllabic answer. The desired role of coiunsel in the process of cusodial invenstogation is rendered meaningless if the lawyer gives an advice in a cursory manner as opposoed to a meaningful advocacy of the rioghts of the person undergoing questioning. If advice is given casually and tritely as to be useless, understanding on the part of the accused is sacrficied and the unconstrained vbiving up of a right becomes impaired. The warning contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abostact constitutional prionciple. It is not enough for the interrogaotor to merely enumerate to the person his rights as provided in Sec. 12, Art. III, of the Constitution, the interrogator must also explain the effect of such provision in practical terms, e.g. what the person under interrogation may or may not do, and in a langauage the subject fairly understands. (People v. Ordono, et al., G.R. No. 132154m prom. June 29, 2000) d. Counsel during custodial investigation must be competent and independent. Ideally, a lawyer engaged for an individual facing custodial investigation (if the latter could not

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afford one) should be engaged by the accused (himself), or by the latters relatives or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition. Laeyrs engaged by the police, whatever testimonials are gven as proof their probity and supposed independence, are generally suspect, as in many cases, the relationship between lawyers and law enforcement authorities can be symbiotic. (People v. Juanario, cited in People v. Obrero, G.R. No. 122142, prom. May 17, 2000) The independent counsel cannot be a special counsel, public or private prosecutor, municipal attorney or counsel of the police whose interest is admittedly adverse to the accused. To allow a Station Commander of the WPD, a part of the police force would render illusory the protection given to the suspect during custodual investigation. (People v. Bedula, 232 SCRA 566 cited in People v. Obrero, G.R. No. 122142, prom. May 17, 2000) e. Choice of lawyer. While the initial choice of the lawyer in cases where a person under custodial investigation cannot fford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investogatpors is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the ivnestigation and the accused thereafter subscribes to the veracity of his srtatement before the swearing officer. (People v. Gallardo, et al., G.R. No. 113684, prom. January 25, 2000) f. Waiver of right must be in writing. The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. There can only be a valid waiver of the right if such waiver is in writing and in the presence of counsel as mandated by Article III, Section 12 of the 1987 Consitution and the pertinent provisions of Republic Act No. 7438. (People v. Buluran, et al., G.R. No. 113940, prom. February 15, 2000) g. Police line-up not custodial investigation. Custodial investigation commences when a person is taken into custody and ius singled ot as a suspect in the commission of the crime under investigation and the police officers begin to ask wquestions on the suspects participation therein and which tend to eleicut an admission. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unslved crime and is purely investogatory in nature. It has also been held than an uncounselled identifrication at the police line-up does not preclude the admissibility of an in-court identification. (People v. Pavillare, et al., G.R. No. 129970, prom. April 5, 2000) h. When mere invitation not considered as part of custodial investigation. Inviting certain individuals without singling them out as the perpetrators of the crime is not considered custodial investigation. So also, asking a single question as to whereabouts is not custodial investigaton as the query was merely part of the general exploratory stage. (People v. Legaspi, et al., G.R. No. 117802, prom. April 27, 2000) However, where the questioning is not a general inquiry into an unsolved crime but already focused on the individual as a particular suspect there was already custodial investigation and he must be accorded his Miranda rights. (People v. Gamer, G.R. No. 115984, prom. February 29, 2000) i. Purpose of right to counsel during custodial investigation. The protection covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. The exclusionary rule is premised on the pesumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the ootentiality for compulsion, physical or psycholigical is forcefully apparent. However, the rule is not intended as a deterrent to the accused from confession guilt if he voluntarily ad intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slughest coercion as would lead the accused to admit something false. The counsel, however, should never prevent an accused from freely and voluntarily telling the truth. (People v. Base, G.r. No. 109773, prom. March 30, 2000)

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5. Gallarde was charged with the special compolex crime of rape with homicide without any qualifying circumstance. During the arraignment he pleaded not guilty. After trial he was convicted of the crime of murder only, not of the cokplex crime of rape with homicide because of the lack of proof of carnal knowledge. Was Gallarde properly convicted ? REason out your answer. SUGGESTED ANSWER: No. Although the term homicide as used in special complex crom of rap[e with homicide is to be unbderstood in its generric sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape, it is settled itat where a cpmplex crime is charged and the evidence fails to support the charge of rape, the qualifying cirumstance must be sufficiently alleged and provided, Otherwise it would be a denial of the right of the accused to be informed of the nautre of the offense with which he is chaged. An accused cannot be convicted of an offense higher thatn that which he is charged in the complaint or information for which he is tried, or necessarily incluyded in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. to convict an accused of a higher ofofense than that charged in the complaint or information under which he is ctried would be an unbauthorized denial of that right. (People v. Gallarde, G.R. No. 133025, prom. February 17, 2000)

PR ELIMIN AR Y I NV ESTI GA TI ON
*** 6. What is preliminary investigation ? SUGGESTED ANSWER: Preliminary investigation is an inquiry or proceeding to 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. (1st par., Sec. 1, Rule 112, ROC) NOTES AND COMMENTS: a. Nature of a preliminary investigation: It is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process. (People v. Oandasa, 25 SCRA 277) It is part of the guarantees of freedom and fairplay. (La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391) A preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crimne, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and does not place the persons against whom it is taken in jeopardy. It is not the occasion for the full and exhaustive display of the parties evidence, it is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guillty thereof. (Raro v, Sabdiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Cruz, Jr. v. People; People v. Deang, et al., G.r. No. 128045, prom. August 24, 2000) b. Purposes of preliminary investigation: A preliminary investigation takes on an adversarial quality. This must be so because the purpose of a preliminary investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to 1) Secure the innocent against hasty, malicious and oppressive prosecution; and to 2) Protect the innocent from an open and public accusation of crime, from the trouble, and expense and anxiety of a public trial (Duterte, et al., v. Sandiganbayan, G.R. No. 130191, prom. April 27, 1998); as well as to 3) Protect the state from useless and expensive trials. (Duterte, supra) It has no other purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy. (Raro v, Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Cruz, Jr. v. People) c. Preliminary investigation has only one stage. Presieential Decree No. 911, upon which the present rule is based, removed the preliminary examination stage and integrated it into the preliminary investigatin proper. Umder the old rules, the preliminary investigation conducted by a municipal judge had two stages: (1) the preliminary examination state during which the investigating judge dtermines whether there is reasonable ground to believe that an offense has been committed and the accused ir probably guilty thereof, so that a warrant of arrest may be

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issued and the accused held for trial; and (2) the preliminary investigation proper where the complaint or information is read to the accused after his arrest and he is informed of the sbstance of the vdence adduced against him, after which he is allowed to prpesent evidence in his favor if he so desires. (Villanueva v. Judge Almazan, A.M. No. MTJ-99-1221, prom. March 16, 2000 citing Bagunas v. Fabillar, 289 SCRA 383, 394) d. Function of government prosecutor during preliminary investigation. (M)erely to determine the existence of probable cause, and to file the corresponding information if he finds it to be so. (Raro v. Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Cruz, Jr. v. People) In determining probable cause, an inquiry into the sufficiencey of evidence to wearrant conviction is not required. It is enough that it is believed that the act or omission complained of constitutes the offense charged. The trial of a case is conducted precisely for the reception of evidence of the prosecution in support of the charge. (Raro, supra) e. Prosecutors discretion in determining probable cause is paramount. The Supreme Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. (Raro v, Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Camanag v. Guerrero) *** f. Probable cause, defined. (T)he existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. (Raro v, Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Cruz, Jr. v. People) Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt. It is merely based on opinion and reasonable belief, and so it is enough that there exists such state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an hones or strong suspicion, that a thing is so. (Pimentel, Jr., v. Commission on Elections, et al., G.R. No. 133509, prom. February 9, 2000) The term does not connote absolute certainty. Neither does it require an inquiry into the sufficiency of the evidence to obtain a conviction. [Villanaueva v. United Coconut Planters Bank (UPCB), etc., G.R. No. 138291, prom. March 7, 2000] *** g. Offenses where preliminary investigation is required: Where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (2nd par., Sec. 1, Rule 112, ROC) The absence of a preliminary investigation does not affect the courts jurisdiction nor does it impair the validity of the information or otherwise render it defective. (Liang, etc. v. People, G.R. No. 125865, prom. January 28, 2000) h. Waiver of right to preliminary investigation. The absence of a preliminary investoigation does not impair the validity of the criminal information or render it defective. There is waiver of the right where the accused enteres his plea during arraignment. (People v. Deang, et al., G.R. No. 128045, prom. August 24, 2000) i. Presence of accused not a condition sine qua non to the validity of a preliminary investigation. The presence of the accused is not required for as long as efforts to reach him were made, and an opoortunity to controvert the evidence for the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thrwart the prosecution of offenses by hiding themselves or by employing dilatory tactics. (People v. Arlee, etc., G.R. No. 113518, prom. January 25, 2000) j. For election cases it is the COMELEC that conducts the preliminary investigation. If the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chirman of the Commission, the preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial Election supervisors, or any lawyer of the Commssion. (Sec. 5, Rule 34, COMELEC Rules of Procedure) 5. On September 15, 1997, members of the PNP went to Quezon City to arrest Larranaga, albeit without warrant for kidnapping with serious illegal detention. The charges stemmed from an alleged kidnapping that was committed on July 16, 1997. Larranaga resisted the arrest and immediately phoned his sister and brother-in-law, who in turn sought the aid of Atty. Arnovit. Over the phone, Atty. Arnovit was able to dissuade the police officers

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from carrying out the warrantless arrest and proposed to meet them at the PNP headquarters in Camp Crame, Quezon City. Larranaga, together with his sister and brother-in-law also went to Camp Crame aboard their own vehicle. After some discussion, Larranaga was allowed to go home on Atty. Arnovit's undertaking in writing that he and Laranaga would appear before the Cebu City Prosecutor on September 27, 1997 for preliminary investigation. The prosecutors now contend that Larranaga is entitled only to an inquest investigation under Section 7 of Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the Rules of Court. The prosecutors likewise argue that Larranaga was actually committing a crime at the time of his arrest since kidnapping with serious illegal detention is a continuing crime. Is Larranaga entitled to regular preliminary investigation ? SUGGESTED ANSWER: Yes. Inquest investigation under Section 7, Rule 112 of the Rules of Court applies only to persons lawfully arrested without a warrant. The facts show that Larranaga was not arrested as there was no restraint upon his person, neither was deprived of his own will and liberty. Granting that Larranaga was arrested such arrest would be illegal because of the absence of a warrant. It does not appear that Larranaga has just committed, is actually committing or is attempting to commit an offense when the police officers tried to arrest him on September 15, 1997. The case of Parulan v. Director of Prisons, 22 SCRA 638 which considered kidnapping with illegal detention as a continuing crime does not find application. In Parulan, the deprivation of liberty is persistent and continuing from one place to another. There is no showing in the facts that the victim Jacqueline was being detained by Larranaga who was then residing in Quezon City. (The minor Larranaga, etc. v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) NOTES AND COMMENTS: a. Entitlement to inquest: Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule 112 of the Rules of Court on Preliminary Investigation, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. (2nd par., Sec. 7, Rule 112, ROC words not in bold supplied) b. Entitlement to regular preliminary investigation: Person not lawfully arrested should be subject to the regular preliminary investigation. Thus, a person who has been arrested without a warrant for a crime allegedly committed some two months before was not lawfully arrested hence entitled to the regular preliminary investigation. REASON: Preliminary investigation is not inquisitorial but quasi-judicial. Fairness dictates that the right should be considered not a mere formal or technical right but a substantive right. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) Note the case of Raro v, Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Cruz, Jr. v. People which considered a preliminary investigation as merely inquisitorial. For Bar purposes, the author suggests that the Larranaga doctrine is the better view because it adheres more to the libertarian interpretation of criminal law and procedure. 6. When is preliminary investigation not required ? SUGGESTED ANSWER: a. Where accused lawfully arrested without warrant and he does not ask for a preliminary investigation. b. Where the penalty prescribed by law is lower than four (4) years, two (2) months and one (1) day without regard to fine; c. Cases covered by the Rule on Summary Procedure. (There may be no need to state this because cases covered by the Rule on summary Procedure include criminal cases where the penalty prescribed is imprisonment not above 6 months) NOTES AND COMMENTS: a. Person lawfully arrested without warrant not subject to preliminary investigation. When a person is lawfully arrested without a warrant for 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

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accordance with existing rules. In the absence or unavailiability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. (1st par., Sec. 7, Rule 112, ROC) b. Though not entitled but may ask for preliminary investigation: After the filing of the complaint or information in court without preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule 112 on Preliminary Investigation (3rd par., Sec. 7, Rule 112, ROC words not in bold supplied) c. Cases covered by the Rule On Summary Procedure where preliminary investigation is not required: a. Violation of traffic laws, rules and regulations; b. Rental law; c. Ordinances; d. Criminal cases: 1) Penalty prescribed is imprisonment not above 6 months 2) Or not above P1,000.00 fine 3) Or both, irrespective of other imposable penalties, accessory or otherwise 4) Negligence where the imposable fine does not exceed P10,000.00. (Sec. 1 [B], Revised Rule on Summary Procedure) 7. What are the stages of procedure for preliminary investigation ? SUGGESTED ANSWER: The first phase or stage of the investigation consists of an ex parte inquiry of the sufficiency of the complaint and the affidavits and other documents offered in support thereof, and ends with the determination by the judge either: a. that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the Provincial Prosecutor; or b. that the complaint and the supporting documents show sufficient cause to continue with the inquiry, which finding ushers in the second phase. The second phase or stage is designed to afford the respondent notice of the complaint, access to complainant's evidence and an opportunity to submit counter-affidavits and supporting documents. In such a scenario, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, should be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or finding a prima facie case, and holding the respondent for trial which shall be transmitted, together with the pertinent records, to the provincial prosecutor for appropriate action. (Pen v. Hon. de Castro, etc., G.R. No. 104645, prom. July 23, 1998) 8. Is preliminary investigation a substantive right ? Explain briefly. SUGGESTED ANSWER: While the right is statutory rather than constitutional in its fundament, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. (Duterte, et al., v. Sandiganbayan, G.R. No. 130191, prom. April 27, 1998) NOTES AND COMMENTS: a. Right to preliminary investigation may be waived. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) The right to preliminary investigation is not a fundamental right and may be waived expressly or by silence. Failure of an accused to invoke this right constitutes a waiver of such right and any irregularity that attends it. The right may be forfeited by inaction and can no longer be invoked for the first time at the appellate level. (People v. Lagao, Jr., G.R. No. 118457, prom. April 8, 1997)

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Preliminary investigation is part of procedural due process. It cannot be waived, unless the waiver appears to be clear and informed. There is no waiver if the accused has been actively and consistently demanding a regular preliminary investigation even before he was charged in court. Also, accused refused to enter a plea during the arraignment because there was pending a case in the Supreme Court regarding his right to avail of a regular preliminary investigation. Clearly the acts of the accused and his counsel are inconsistent with a waiver. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) b. The absence of preliminary investigations does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct it, or remand the case to the inferior court so that the preliminary investigation may be conducted. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998 ) 9. May courts interfere with the conduct of a preliminary investigation ? Explain briefly. May an injunctive writ issue to enjoin the conduct of a preliminary investigation ? If, so upon what grounds ? SUGGESTED ANSWER: As a general rule, courts may not interfere with the conduct of a preliminary investigation as this is an exercise by the executive department of its quasi-judicial functions. Even the Supreme Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. (Raro v, Sandiganbayan, et al., G.R. No. 108431, prom. July 14, 2000 citing Camanag v. Guerrero) However, courts may enjoin the conduct of a preliminary under the following circumstances: a. To afford protection to the constitutional rights of the accused. b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions. c. When there is a prejudicial question which is sub judice. d. When the acts of the officer are without or in excess of authority. e. When the prosecution is under an invalid law, ordinance or regulation. f. When double jeopardy is clearly apparent. g. Where the court has no jurisdiction over the offense. h. Where it is a case of persecution rather than prosecution. i. Where the charges are manifestly false and motivated by the lust for vengeance. j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. (Commissioner of Internal Revenue, et al., v. Court of Appeals, et al., G.R. No. 119322, prom. June 4, 1996) NOTES AND COMMENTS: Supreme Court may review decision or finding of Ombudsman only on pure question of law. Sec. 14, R.A. No. 6770, the Ombudsman Act of 1989, provides that, (n)o court shall hear nay appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court on pure questions of law. Moreover, Sec. 27 of the same Act provides further that, (f)indings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. (Morong Water District v. Office of the Deputy Ombudsman, et al., G.R. No. 116754, prom. March 17, 2000) 10. "T" filed a complaint for libel against "L" which ripened into an information filed by the prosecutor's office with the Regional Trial Court. "L" filed a petition for review of the prosecutor's resolution with the Department of Justice, which gave due course to the petition and directed the prosecutor to move for deferment of further proceedings and to elevate the entire records of the case. The court approved the motion and deferred the petitioner's arraignment until the final termination of the petition for review. The Secretary of Justice reversed the prosecutor's findings, as a consequence of which the prosecutor filed a motion to withdraw information. The trial court denied the motion using as authority Crespo v. Mogul. If you were to review the order of the trial court, how would you decide ?

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SUGGESTED ANSWER: I would reverse the order of the trial court. Sole and bare reliance on Crespo is not sufficient basis for the denial. The trial court should have conducted an independent and competent assessment of the issue(s) presented in the motion to dismiss because grant or denial of the motion is equivalent to effecting a disposition of the case itself. Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are required to make their own assessment of whether the Secretary of Justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecution's or the secretary's evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the motion. (Ledesma v. Court of Appeals, G.R. No. 113216, prom. September 5, 1997) NOTES AND COMMENTS: a. RECONCILIATION BETWEEN CRESPO v. MOGUL, 151 SCRA 462; MARCELO v. COURT OF APPEALS, 235 SCRA 39; MARTINEZ v. COURT OF APPEALS, 237 SCRA 575; ROBERTS, JR. v. COURT OF APPEALS, 254 SCRA 307. In Crespo the Secretary was advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4, of the Rules of Court which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the resolution of the Secretary of Justice. Marcelo ruled that prudence and wisdom dictate that the court should hold in abeyance the proceedings and wait for a final resolution of a motion for review or reinvestigation from the Secretary of Justice before acting on a motion to dismiss or a motion to withdraw the information. However, after the SOJ has the resolved the matter, the trial court should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. (reiterated in Dimatulac v. Villon and Solar Team Entertainment, Inc., et al., v. How, etc., et al., G.R. No. 140863, prom. August 22, 2000) In Martinez the trial court's grant of the motion to dismiss filed by the prosecuting fiscal upon the recommendation of the Secretary of Justice was overruled because such grant was based upon considerations other than the judge's own assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case. In Roberts the authority of the Secretary of Justice to review resolutions of the prosecutors upon petition by a proper party even while the criminal case is already pending with the courts was sustained. SUMMARY: While the Secretary of Justice has the prerogative to review and could direct the exclusion of an accused from the information, such is not binding upon the court since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case. (Solar entertainment, Inc., et al., v. How, etc., et al., G.R. No. 140863, prom. August 22, 2000) The final ruling on the exclusion of the accused rests upon the trial court who has already obtained jurisdiction over the case. b. Appellate authority of Secretary of Justice over preliminary investigations. The Secretary of Justice has the power to review resolutions or decisions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party. Under the Revised Administrative Code, the Secretary of Justice exercises the power of direct control and supervision over said prosecutors. He may thus affirm, nullify, reverse or modify their rulings as he may deem fit. This same power is granted under Section 1 (d) of P.D. No. 911. (Jalandoni v. Secretary of Justice, etc., et al., G.R. No. 115239-40, prom. March 2, 2000) If upon petition by a proper party undr 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. (last par., Sec. 4, Rule 112, ROC)

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BEF OR E FILI NG WIT H TH E CO URT

DOCTRINE OF PRECONDITION, PRIOR RESORT AND ALTERNATIVE DISPUTE RESOLUTION There is need for a determination of whether certain preconditions have been met, for example whether there is a prejudicial question that might affect the prosecution of the offense. 11. What are the elements of a prejudicial question ? SUGGESTED ANSWER: The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. (Sec. 7, Rule 111, ROC) NOTES AND COMMENTS: a. Rationale behind principle of prejudicial question. To avoid conflicting decisions. a. Filing petition for suspension of criminal action due to prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (Sec. 6, Rule 111, ROC) b. Issue of prejudicial question may be waived. REASON: It is a procedural matter the waiver of which 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. (Alano v. Court of Appeals, et al., G.R. No. 111244, prom. December 15, 1997) *** 12. On October 21, 1985, Isagani contracted a first marriage with Dulce. Without hsaid marriage having been annulled or terminated, Isagani contracted a second marriage with Imeldla on January 25, 1996 and a subsequent third marriage with Julia. Upon complaint of Dulce, Isagani was charged with bigamy. Isagani then initiated a civil action for the judicial declaration of absolute nullity of his first marriage to Dulce on the ground that it was celebrated without a marriage license. He then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pendency of the civil suit for nullity as a prejudicial question. Rule on the motion. SUGGESTED ANSWER: Motion denied. Assuming that the first marriage was null and void on the ground alleged by Isagani, that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves it nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. (Marbella-Bobis v. Bobis, G.R. No. 138509, prom. July 31, 2000 citing Landicho v. Relova, 22 SCRA 731, 735) NOTES AND COMMENTS: a. Article 40 of the Family Code requires prior declaration of nullity of first marriage before contracting second marriage. Not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense, but that is a matter that can be raised in the trial of the bigamy case. (Marbella-Bobis v. Bobis, G.R. No. 138509, prom. July 31, 2000 citing Landicho v. Relova, 22 SCRA 731, 735) b. Action for nullity of marriage not prejudicial question to concubinage. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear not only that the said civil case involves the same facts upon which the criminal proseuction would be based, but also that in the resolution of the issue or issues raised in the aforesaid civil action, the guilt or innocence of the accused would be necessarily be determined. (Beltran v. People, et al., G.R. No. 137567, prom. June 20, 2000)

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13. Luna filed a criminal comlaint against Co for estafa and perjury. It appears that Producers Bank authorized Co to purchase a proprietary share of Manila Polo Club to be placed in his name being the Director of the Bank and to be held by him on behalf of the corporation. After separation as Bank Director, Co, despite demand, refused to surrender to the Bank the Manila Polo Club certificate. Instead, he executed a false affidavit of loss and was able to secure a replacement certificate, despite the existence of the original certificate in the Banks possession. During the pendency of the criminal action, Co filed a civil action for damages against Luna and claimed ownership over the questioned certificate. Co now moves for a suspension of the criminal proceedings claiming that the civil action he filed raises a prejudicial question. Is the motion meritorious ? SUGGESTED ANSWER: The motion is bereft of merit. The trial court hearing the criminal case can resolve the question of ownership. The civil action for recovery of civil liability is impliedly instituted with the filing of the criminal action. hence, Co may invoke all defenses pertaining to his civil liability in the criminal action. He is not prohibited from airing exhaustively the question of ownership. After all, the trial court has jurisdiction to hear the said defense. (First Producers Holdings Corporation v. Co., G.R. No. 139655, prom. July 27, 2000) 14. On 04 February 1992, Ching was charged before the Regional Trial Court-Makati with four counts of estafa punishable under Article 315 par. 1 (b) of the R.P.C., in relation to P.D. No. 115, the Trust Receipts Law. On 05 Maerch 1992, Ching, together with Philippine Blooming Mills Co., Inc., filed a case before another branch of the RTC-Manila, for declaration of nullity of documents and for damages. On 07 August 1992, Ching filed a petition before the RTC-Makati, for the supsension of the criminal proceedings on the ground of prejudicial question in a civil action. Rule on the petition. SUGGESTED ANSWER: The alleged prejudicial question in the civil case for declalration of nullity of documents and for damages does not juris et de jure dtermine the guilt or innocence of the accused in the criminal action for estafa. Assuming arguendo that the court hearing the civil asp[ect of the case adjudicates that the transaction entered into between the parties was not a rtrust receipt agreement, noetheless the guilt of the accused could still be established and his culpability under penal laws determined by other evidence. To put it differently, even on the assumption that the documents are declared null, it does not ipso facto follow that such declaration of nulllity shall exonerate the accused from criminal prosecution and liability. (Ching v. Court of Appeals, et al., G.r. N0. 110844, prom. Aoril 27, 2000)

KATARUNGGANG PAMBARANGAY
15. What criminal cases should be referred to the Katarunggang Pambarangay ? SUGGESTED ANSWER: The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except: a. Offenses punishable by imprisonment exceeding one (1) year or fine exceeding Five thousand pesos (P5,000.00); and b. Offenses where there is no private offended party. (\sec. 408 [c] and [d], R.A. No. 7160) NOTES AND COMMENTS: Cases where the parties may go directly to court: a. Where the accused is under detention; b. Where the action may otherwise be barred by the statute of limitations. (Sec. 412 [b] {1} and {4}, R.A. No. 7160)

SELECTION OF COURT JU RISDI CTIO N OF COUR TS

16. What law determines the jurisdiction of a court to try a criminal case. Is there any exception to this rule ? SUGGESTED ANSWER: The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action. Once the court acquires

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jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final determination of the case and it is not affected by subsequent legislation vesting jurisdiction over such proceedings in another tribunal. A recognized exception to this rule is when the statute expressly provides, or is construed to the effect that it isintended to operate upon actions pending before its enactment. However, where such retroactive effect is not provided for, statutes altering the jurisdiction of a court cannot be applied to cases already pending prior to their enactment. (Alarilla v. Sandiganbayan, etc., G.R. No. 136806, prom. August 22, 2000) 17. What is the jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts ? SUGGESTED ANSWER: Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and 2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine and regardless of other inposable accessory penalties, including the civil liability arising from such offenses; or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. (Sec. 32, B.P. Blg. 129 as amended by R.A. No. 7691) NOTES AND COMMENTS: a. MTCs do not have jurisdiction where the law specifically vests the jurisdiction in other courts. By virtue of the exception provided for in the opening sentence of Sec. 32 of B.P. Blg. 129 as amended by Sec. 2 of R.A. No. 7691, the exclusive original jurisdiction of the three lower trial courts does not cover those criminal cases which by specific provisions of law fall within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, regardless of the penalty prescribed therefor. Otherwise stated, even if those excepted cases are punishable by imprisonment of not exceeding six (6) years (i.e.prision correccional, arresto mayor, or arresto menor), jurisdiction thereon is retained by the Regional Trial Courts or the Sandiganbayan, as the case may be. Among the exceptions provided for in the opening sentence of Sec. 32 are cases under (1) Section 20 of B.P. Blg. 129; (2) Article 360 of the Revised Penal Code, as amended, and (3) the Dangerous Drugs Act of 1972, as amended. (Commission on Elections v. Hon. Noynay, et al., G.R. No. 132365, prom. July 9, 1998) Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also fall within the exception. (Ibid; Juan, et al., v. People, G.r. No. 132378, prom. January 18, 2000) 18. What is the jurisdiction of Regional Trial Courts in criminal cases ? SUGGESTED ANSWER: Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter."(Sec. 20, B.P. Blg. 129 ) NOTES AND COMMENTS: Regional Trial Courts not Municipal Trial Courts have jurisdiction over libel cases. While libel is punishable by imprisonment of six months and one day to four years and two months (Art. 360, Revised Penal Code) which imposable penalty is lodged within the Municipal Trial Courts' jurisdiction under R.A. No. 7691 (Sec. 32 [2]), said law however, excludes therefrom cases falling within the exclusive original jurisdiction of the Regional Trial Courts. REASON: Although R.A. No. 7691 was enacted to decongest the clogged dockets of the Regional Trial Courts by expanding the jurisdiction of first level courts, said law is of a general character. Even if it is a later enactment, it does not alter the provision of Article 360 of the RPC, a law of a special nature. (Manzano v. Hon. Valera, et al., G.R. No. 122068, prom. July 8, 1998) 19. What is the jurisdiction of the Sandiganbayan ?

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SUGGESTED ANSWER: Jurisdiction of the Sandiganbayan. The Sandiganbayan shall exercise: (a) Exlcusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrpupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, of the Revised Penal Code as amended, where one or more of the accused are officials occupying positions in the government classified as Grade 27 or higher whether in a permanent, acting or interim capacity at the time of the commission of the offense. (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations,w hether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. (b) Exclusive appellate jurisdiction: (1) On appeal, from the final judgments, resolutions or orders of the Regional Trial Courts in cases originally decided by them in their respective territorial jurisdictions; (2) By petition for review, from the final judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in their respective jurisdiction xxx (c) The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary writs and processes in aid of its jurisdiction: Provided: That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. (Sec. 4, P.D. No. 1606, as amended by R.A. No. 7975) (d) Republic Act No. 7975, an acgt amending P.D. No. 1606, provides that the Sandiganbayan shall have original jurisdiction over all civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, or the so0called ill-gotten c=wealth cases. The Sandiganbayan has jurisdiction to annul the judgment of the Regional Trial Court in a sequestration-related case. The Sandiganbayan has original and exclusive jrisdiction not only over principal causes of actiuon involving recovery of ill-gotten wealth, but also over all incidents arising from, incidental to, or related to such cases. (Prfesidential Commission on Good Government v. Sandiganbayan (1st Div.), et al., G.r. No. 132738, prom. February 23, 2000) NOTES AND COMMENTS: a. Private individuals as co-principals with public officers. Where private individuals are charged as co-principals with the public officers or employees, including those employed in government-owned or controlled corporations shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. b. Sandiganbayan has jurisdiction over violations of R.A. No. 3019, as amended, against municipal mayors. There is no merit to the averment that the salary received by a public official dictates his alary grade. On the contrary, it is the officials grade that determinies his or her salary, not the other way round. To determine whether an official is within the exclusive jurisdiction of the Sandiganayan, therefor, reference should be made to Republic Act No. 6758 and the Index of Occupational Services, Position titles and Salary Grades, An oifficials grade is not a matter of proof, but a matter of law which the court must ake judicial notice. Sec. 444(d) of the Local Government Code provides that the municipal mayor shall receive a minimum monthly compensatin corresponding to Salary Grade twenty-seven (27) as prescribed under Republic Act No. 6758 and the implementing guidelines issued pursuant thereto. Additionally, both the 1989 and the 1997 versions of the Index opf Occupational Services, Postion Titles and Sallary Grades ist the municipal mayor under Salary Grade 27. (Llorente, Jr. v. Sandiganabayn, et al., G.R. Nos. 122297-98, prom. Januaury 19, 2000) Sandiganbayan has no jurisdiction if the accused is occupying the postion of Director II with Salary Grade 26 under the Compenation and Position Classification Act of 1989

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(Republic Act No. 6758). (Cuyco v., the Honorable Sandiganbayan, etc, et al., G.R. Nos. 137017-18, prom. February 8, 2000)

V E N U E
***20. Where should criminal cases be filed ? What is the venue of criminal cases ? SUGGESTED ANSWER: Subject to existing laws, the criminal action shall be instituted and tried a. in the court of the municipality or territory b. where the offense was committed or c. where any of its essential ingredients occurred. [Sec. 15 (a), Rule 110, ROC arrangement and numbering supplied) NOTES AND COMMENTS: ***a. Exceptions or instances where a case may be instituted at a place other than where the offense was committed: 1) Continuing offenses at any place where the essential elements of the crime was committed; 2) Libel where generally the venue is the place of publication or where any of the offended parties actually reside at the time of the commission of the offense; 3) Where a change of venue was ordered by the Supreme Court; 4) Cases cognizable by the Sandiganbayan where cases are always filed where the Sandiganbayan is located; 5) Extraterritorial crimes or crimes committed outside of the Philippines. Specific venue for criminal actions: (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients took place; (b) Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of departure and arrival. (c) When an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law. (d) Crimes committed outside of the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. (Sec. 15, Rule 110, ROC)

SU MMA RY PROCE DU RE IN C RIMI NAL CA SE S

21. What criminal cases are governed by the summary procedure ? SUGGESTED ANSWER: a. Violations of traffic laws, rules and regulations. b. Violations of the rental laws. c. Violations of municipal or city ordinances. d. All other criminal cases where the penalty prescribed by law for the offense charged: 1) Does not exceed six (6) months imprisonment, or 2) A fine of one thousand pesos (P1,0000.00), or 3) Both, irrespective of other imposable penalties, accessory or otherwise or of the civil liability arising therefrom 4) Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000.00). (Nos. 1 to 4, Sec. 1 [B], Rule on Summary Procedure) NOTES AND COMMENTS: Outline of procedure for criminal cases falling under the Rule on Summary Procedure: a. Complaint or information filed directly in Municipal Trial Court without need of prior preliminary examination or investigation.

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1) Must be accompanied by affidavits of the complainant and of his two witnesses in such number of copies as there are accused plus two (2) copies for the court files. a) If the above requirement is not complied with, the case is dismissed within five (5) days from date of filing. b) In Metro Manila and chartered cities, only informations may be filed. c) When the offense cannot be prosecuted de oficio, the complaint shall be signed and sworn to before the public prosecutor by the private offended party. b. The court makes a preliminary determination: 1) whether to dismiss the case for patently without basis or merit; or 2) Require further proceedings. c. If further proceedings required: 1) Accused under custody for the crime charged: a) Judge orders immediate arraignment; b) Accused pleads: (1) Guilty, he shall forthwith be sentenced. (2) Guilty to a lesser offense to which he shall be sentenced. (3) Not guilty, the court issues an order.... d. Directing accused to appear and submit their counter affidavits and those of their witnesses at a specified date not later than ten (10) days from receipt of order 1) If the defendant does not appear the court shall issue a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses. (last par., Sec. 10, Rule on Summary Procedure) 2) Upon consideration of the complaint or information and the affidavits submitted by both parties and the Court a) Finds no cause or ground to hold the accused for trial - the case is dismissed. b) Finds cause: e. Parties are called for a preliminary conference for: 1) Stipulation of facts; 2) For accused to plead to a lesser offense; 3) Other matters to clarify the issues and to ensure a speedy disposition of the case. f. Arraignment: Accused pleads: 1) Guilty, he shall forthwith be sentenced. 2) Guilty to a lesser offense, he shall forthwith be sentenced. 3) Not guilty, the .... g. Trial is set which must be finished on the same day set. 1) Only witnesses who submitted affidavits shall be presented for crossexamination. No other witnesses allowed. h. Judgment - same as in civil cases. i. Appeal - same as in civil cases. j. Petition for review - same as in civil cases.

PLE ADIN GS PROSECUTION OF CRIMINAL OFFENSES

22. How are criminal offenses instituted ? SUGGESTED ANSWER: Criminal actions shall be instituted as follows: (a) For offenses where preliminary investigation is required pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine) by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation therein; (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed

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with the office of the public prosecutor unless otherwise provided in their charters. (1st par., Sec. 1, Rule 110, ROC, words not in bold supplied) NOTES AND COMMENTS: INTERRUPTION OF PRESCRIPTIVE PERIODS. The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. (last par., Sec. 1, Rule 110, ROC) 23. What is a complaint in criminal procedure ? SUGGESTED ANSWER: A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. (Sec. 3, Rule 110, ROC) 24. When is a complaint or information considered as sufficient ? A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or ommissions complained of as constituting the offense; the name of the offended party; the approximae date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (Sec. 6, Rule 110, ROC) NOTES AND COMMENTS: a. Purpose of the rule. In a criminal procsecution, it is the fundamental rule that every element of the crime charged must be alleged in the complaint or information. The main purpose of this requirement is to enable the accused to properly prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. (People v. Medina, 300 SCRA 98, 118 cited in People v. Bayona, G.R. Nos. 133343-44, prom. March 2, 2000) This doctrine is not a mere technicality, it rests on the constitutional principle that an accused is entitled to be informed of the nature and cause of the accusation against him, as stated in the information. (People v. Bayona, G.R. Nos. 133343-44, prom. March 2, 2000) The objectives of the defendants right to be informed are: 1) To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2) To avail himself of his conviction or acquittal for protection against a further prosecution for the same cusae; and 3) To inform the court of the facts alleged, so that it may decide whetherr they are sufficient in law to support a conviction, if one should be had. (Pecho v. People cited in People v. Bayya, G.R. No. 127845, prom. March 10, 2000) It is thus imperative that the information filed with the trial court be complete to the end that the accused may suitably prepare his defense. Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation aainst the accused. (People v. Bayya, G.R. No. 127845, prom. March 10, 2000 citing Pecho v. People) b. Sufficiency of allegations in complaint. The allegations in the complaint that the accused had carnal knowledge with the offended woman against her will or without her consent is insufficient to warrant conviction for rape, although the evidence proves the commission of the crime. (People v. Mendez, G.R. No. 132546, prom. July 5, 2000 citing People v. Oso) c. In case of variance between the victims complaint and the information in crimes against chastity, the complaint controls. The faiure of the information to state that the rape was committed through force or intimidation is not a fatal omission where the compalint alleged the ultimate fact that the accused raped the victim by means of force. So, at the outset, the accused could have readily ascertained that he was being accused of rape committed through force. . (People v. Mendez, G.R. No. 132546, prom. July 5, 2000 citing People v. Oso) d. Special qualifying circumstances in rape must be alleged in the information otherwise the death penalty may not be imposed. The seven additional attendant circumstances intorduced by Sec. 7 of Republic Act No. 7659, (such as victims minority and her filial relationship with the accused, among others) should be considered as special qualifying circumstances specifically applicable to the crime of rape considering that they have changed the natiure of simple rape by increasing the penalty one degree higher through the imposition of the

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death penalty. These attendant circumstances are considered as equivalent to qualifying circumstances since they increase the penalties by degrees, and not merely as aggravating circumstances which affect only the period of the penalty but do not increase it to a higher degree. These circumstances must be specifically pleaded or alleged with certainty in the information, otherwise, the death penalty cannot be imposed. It would be a denial of the right of the accused to be informed of the charges against him and, subsequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified form punishable with death, although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned. (People v. Villar, G.R. No. 127572, prom. January 19, 2000 citing People v. Dela Custa, G.R. No. 126134, prom. March 2, 1999; People v. Bayona, G.R. Nos. 133343-44, prom. March 2, 2000; People v. Ferolino, etc., G.R. Nos. 131730-31, prom. April 5, 2000; People v. Traya, G.R. No. 129052, G.R. No. 129052, prom. May 31, 2000; People v. Baybado, G.R. No. 132136, prom. July 14, 2000 citing People v. Garcia, 281 SCRA 463; People v. Ramos, 296 SCRA 559) e. Penalty for one crime only if information alleges only one such crime even if prosecution proves two crimes. The accused could only be convicted of a crime committed as shown in the information and not as proven by the prosecution. An accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be violative of this constiturtional right. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information filed against him. (People v. Pambid, G.R. No. 124453, prom. March 15, 2000) e. Error in caption not controlling. Error in the caption is not fatal. What is controlling are the actual recital of facts in the body of the information and not the caption or preamble of the crime. (People v. Fabro, G.R. No. 1144261, prom. February 10, 2000) 25. Define an information. SUGGESTED ANSWER: An information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court. (Sec. 4, Rule 110, ROC) 26. How many offenses may be charged in a complaint or information ? SUGGESTED ANSWER: A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses. (Sec. 13, Rule 110, ROC) 27. Is it necessary to state the date and time of commission of the felony in the complaint or information ? SUGGESTED ANSWER: It is not necessary to state in the complaint or information the precise date the offense was commmitted except when it is a mterial ingredient of the offense. 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, Rule 110, ROC) NOTES AND COMMENTS: a. Allegation of exact time and date of commission of rape not important. This is because the precise time of the commission of the crime is not an essential element of rape and it has no substantial bearing on its commission. It is equally settled that a variance of fedw months between the time set out in the indictment and that established by the evidence during the trial has neen held not to constitute an error so serious as to warrant reversal of a conviction volely on that score. (People v. Alvero, etc., G.R. Nos. 134536-38, prom. April 5, 2000) 27. Tan, Jr., Urbi, Maza, Avendano and dela Cruz were charged with having violated the Anti-Graft Law through conspiracy. Upon reinvestigation, all the accused were dropped from the information except Tan, Jr He now moves to quash the information arguing that there being no conspiracy as a result of the discharge of his co-accused, the charge against him of "conspiring and confederating" with others in committing the crime has no more basis. he further contends

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that there can be no conspiracy if only one person remains charged under the same information. Rule on the motion. SUGGESTED ANSWER: Motion denied. Conspiracy is not an element of the crime. The subsequent dismissal of the charges against Tan, Jr.'s co-accused premised on the nonexistence of conspiracy did not render the information defective. The allegation of conspiracy in the information becomes a mere surplussage as a consequence of the outcome of the reinvestigation. In any case, an information alleging conspiracy can stand even if only one person is charged except that the court cannot pass verdict on the co-conspirators who were not charged in the information. (Tan, Jr. v. Sandiganbayan, G.R. No. 128764, prom. July 10, 1998)

PROSECUTION OF CIVIL ACTIONS

***28. A passenger bus owned by San Ildefonso Lines, Inc. (SILI) driven by Eduardo collided with the Toyota Lite Ace Van driven by Annie, totally wrecking the van and injuring Annie and her two passengers in the process. A criminal case was filed with the Pasig RTC charging Eduardo with reckless imprudence resulting to damage to property with multiple physical injuries. Four months later, Pioneer Insurance and Surety Corporation (PISC), as insurer of the van and subrogee filed a civil case for damages against SILI before the Manila RTC. After joinder of issues, SILI filed a Manifestation and Motion to Suspend Civil Proceedings grounded on the pendency of the criminal case against Eduardo in the Pasig RTC and the failure of PISC to make a reservation to file a separate damage suit in said criminal action. Decide the motion ? SUGGESTED ANSWER: Motion granted. Reservation is required in order to avoid multiplicity of suits, guard against oppression and abuse and prevent delays, to clear congested dockets, simplify the work of the trial court; in short, the attainment of justice with the least expense and vexation to the parties-litigants. (San Ildefonso Lines, Inc.,et al., v. Court of Appeals, et al., G.R. No. 119771, prom. April 24, 1998) Clearly PISC as subrogee under Article 2207 of the Civil Code is not exempt from the reservation requirement with respect to its damages suit based on quasi-delict arising from the same act or omission of Eduardo complained of in the criminal case. PISC merely stepped into the shoes of Annie (as owner of the van), hence it is bound to observe the procedural requirements which Annie ought to follow has she herself instituted the suit. (Ibid.) NOTES AND COMMENTS: General rule: Prior reservation required for independent civil actgions: There is no dispute that the so-called "independent civil actions" based in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines are the exceptions to the primacy of the criminal action over the civil action as set forth in Section 2 of Rule 111, Rules of Court. This is deducible from the phrase in Section 3, "which has been reserved" that the "independent" character of these civil actions does not do away with the reservation requirement. In other words, prior reservation is a condition sine qua non before any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action. If no reservation is made then the civil actions are impliedly instituted with the criminal action unless the former are waived or filed ahead of the criminal action. (San Ildefonso Lines, Inc., et al., v. Court of Appeals, et al., G.R. No. 119771, prom. April 24, 1998) 29. Is civil liability based on quasi-delict extinguished with the acquittal of the accused ? SUGGESTED ANSWER: No. A separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually also charged criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Rule 111, Sec. 2 (b), of the Rules of Court refers exclusively to civil liability founded on Article 100 of the Revised Penal Code whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged

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has not happened or has never been committed by the accused. (Heirs of Guaring, Jr. v. Court of Appeals, et al., G.R. No. 108395, prom. March 7, 1997) NOTES AND COMMENTS: General Rule: The death of the accused prior to conviction extinguishes his civil liabiity arising from delict. Exception: Civil liability arising from quasidelict is not extinguished. Thus, even if the separate civil action under Article 33, of the Civil Code had not been expressly reserved it may still be enforced separately. REASON: The civil action was terminated without final adjudication as a result of the death of the accused. (Villegas v. Court of Appeals, et al., G.R. Nos. 82562 & G.R. No. 82592, prom. April 11, 1997) 30. May moral damages be awarded to rape victims ? Explain. SUGGESTED ANSWER: Yes. Undoubtedly, rape victims suffer mental anguish, firhgt, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and other emotional injuries that entitle them to moral damages. Thus, in People v. Prades, 293 SCRA 411, the Supreme Court resolved to grant moral amages to rape victims, in such amount as the Court deems just, without the necessity for pleading or proof of the basis threreof. The conventional requirement of allegata et probata in civil procedure is dispensed with in criminal prosecutions for rape as no appropriate pleadings are filed wherein such allegations can be made. In rape cases, proof of mental and physical suffering provided under Article 2217 of the Civil Code can be dispensed with because it is recognized that the vicrtims injury is concommitant with and necessarily resultls from the odious crime of rape to warrant per se the award of moral damages. (People v. Mangila, G.R. Nos. 130203-04, prom. Fewbruary 15, 2000) NOTES AND COMMENTS: a. Civil indemnity different from moral damages. Civl indemnity is different from the award of moral damages. . (People v. Mangila, G.R. Nos. 130203-04, prom. Fewbruary 15, 2000) The award authorized by criminal law as civil indemnity ex delicto fo the offended party is mandatory upon the finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound discretion. (People v. Mendiona, etc., et al., G.R. No. 129056, prom. February 21, 2000 citing People v. Prades, 293 SCRA 411) 31. When is there an award of exemplary damages in criminal cases ? SUGGESTED ANSWER: Where therre is an attendance of aggravating circumstances pursuant to Article 2230 of the Civil Code. (People v. Rendoque, Sr., et al., G.R. No. 106282, prom. January 20, 2000) 32. Where an employer is found to be subsidiarily liable under Article 103 of the Revised Penal Code, what should be determined at a hearing prior to execution ? SUGGESTED ANSWER: Before execution against an employer ensues, there must be a determination, in a hearing set for the purpose: a) the existence of an employer-employee relationship; b) that the employer is engaged in some kind of industry; c) that the employee is adjudged guilty of the wrongful act and found to have comitted theoffense in the discharge of his duties (not necessarily any offensed he commits while in the discharge of such duties; and d) that said employee is insolvent. (Basilio v. Court of Appeals, et al., G.R. No. 113433, prom. March 17, 2000) NOTES AND COMMENTS: a. Vicarious civil liability of employer for fault or negligence of employee. Under the law, the vicarious liability of the employer is founded on at least two specific provisions of law: 1) Article 2176 in relation to Article 2180 of the Civil Code, which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for tan act or omission of the employee and would necessitate only a prepondrance of evidence to prevail. Here the liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the defense of due diligence in the selection of supervision of the employee. The enforcement of the judgment against the emploer in such an action does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee (the two being statutorily considered joint tortfeasors), is solidary.

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2) Article 103 of the Revised Penal Code which provides for the subsidiary liability of the employer for a felony committed by his employee in the discharge of his duty. This liability attached when the employee is convicted of a crime doen in the performance of his work and is found to be insolvent that renders him unable to properly respond to the civil liability adjuged. (Rafael Reyes Trucking Corporation v. People, et al., G.R. No. 129029, prom. April 3, 2000) b. Instances when existence of employer-employee relationship between accused driver and alleged vehicle owner is determined. 1) During the criminal proceeding, and 2) During the proceeding for the execution of the judgment. In both instances, the alleged vehicle owner should be given the opportunity to be heard, which is the essence of due process. (Basilio v. Court of Appeals, et al., G.R. No. 113433, prom. March 17, 2000) 33. On October 10, 1989, the Provincial Prosecutor filed with the RTC and amended information charging a driver with reckless imprudence resulting to double homicide and damage to property. Upon arraignment, the accused entered a plead of not guilty. The private offended parties made a reservation to file a separate civil action against the accused arising from the offense charged. On November 29, 1989, the offended parties actually filed with the RTC a complaint against the employer of the accused based on quasi-delict. The private offended parties opted to pursue the criminal action but did not withdraw the civil case quasi ex delicto they filed against the employer. On December 15, 1989, the private offendned parties withdrew the reservation to file a separate civil action against the accused and manifested that they would prosecute the civil aspect ex delicto in the criminal case. However, they did not withdraw the separate civil action based on equasi delicto against the employer arising from the same act or omission of the accused driver.

PROVISIONAL REMEDIES IN CRIMINAL CASES

34. Are provisional remedies available in criminal cases ? SUGGESTED ANSWER: Yes. The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (Sec. 1, Rule 127, ROC)

FILING W ITH T HE COUR T AFT ER FILING WI TH THE COU RT BEF OR E T RIAL ARREST
35. What is arrest ? SUGGESTED ANSWER: Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Sec. 1, Rule 113, ROC) NOTES AND COMMENTS: a. Issuance of warrant of arrest by RTC judge presupposes completion of preliminary investigation: Within ten (10) days from the filing of the complaint or information, the judge shall personally ealuate the resoliton of the prosecutor and is supporting evidence. He may immeidately dismiss the case if the evidence on record clearly fails to etablish probable cause. IOf he finds probable cause, he shall ssue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint of information was filed pursuant to section of this Rule. (When accused lawfuly arrested without warrant) 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 the filing of the complaint or information. (Sec. 6 [a], Rule 112, ROC words in pareenthesis supplied)

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b. Issue by an MTC judge of a warrant of arrest does not require completion of preliminary investigation: The Rules do not require that preliminary investigation be first concluded before a warrant of arrest may issue. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest, if he finds after an examination in writing and under oath of the complainant and his 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. (Sec. 6 [b], Rule 112, ROC). c. Definition of probable cause for issuance of warrant of arrest: Probable cause to warrant arrest requires such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. (Pen v. Hon. de Castro, etc., G.R. No. 104645, prom. July 23, 1998) d. Evidence needed to determine probable cause: 1) In the determination of probable cause, the average man weighs facts and circumstances without resorting to the calibrations of technical rules of evidence which his (the average man) knowledge is nil. What is necessary is not proof beyond reasonable doubt but just a probable cause. "Evidence required to establish guilt is not necessary." (Pen v. Hon. de Castro, etc., G.R. No. 104645, prom. July 23, 1998) 2) A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Bringer v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify ... conviction. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt." (Pen, supra) ***36. When is arrest without warrant lawful ? SUGGESTED ANSWER: A peace officer or a private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (1) and (b) above, 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 7 of Rule 112. (Sec. 5, Rule 113, ROC) NOTES AND COMMENTS: a. Disposition of person arrested without warrant:. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or iformation may be filed by a prosoecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailiability of an unquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary invesrtigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the compalint 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 with the same right to adduce evidence as provided in his defense as provided in this Rule. (Sec. 7, Rule 112, ROC)

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b. Kinds of warrantless arrest: 1) Arrest "in flagrante delito" under Sec. 5 (a), Rule 113, ROC; 2) Arrest in "hot pursuit" under Sec. 5 (b), and (c), Rule 113, ROC. c. Instance where there is no valid in flagrante delito or hot pursuit arrest: Where there is lack of personal knowledge on the part of the arresting officer, or an overt physical act on the part of the accused, indicating that a crime had just been committed, was being committed or was going to be committed. (Malacat v. Court of Appeals, G.R. No. 123595, prom. December 12, 1997) For warrantless arrest to be valid there must be compliance with the element of immediacy between the time of the commission of the offense and the time of the arrest. Warrantless arrests made within shorter periods like ten (10) days from commission considered as illegal. (People v. Salvariera, G.R. No. 104663, prom. July 24, 1997) 37. What is the remedy for unlawful arrest ? SUGGESTED ANSWER: a. Motion for the quashal of the warrant; b. Motion for reinvestigation. NOTES AND COMMENTS: Instances considerd as waiver of illegal arrest: a. Failure to challenge the validity of the arrest and search, as well as the admission of the evidence obtained thereby, is considered a waiver of the constitutional rights, particularly against unreasonable searches and seizures. (People v. Cuison, et al., G.R. No. 109287, prom. April 18, 1996) b. Any irregularity attendant to the arrest was cured by voluntary submission to the jurisdiction of the trial court upon entering a plea and participation during the trial. (People v. Tumaneng, G.R. No. 117624, prom. December 4, 1997) c. The filing of charges and the subsequent issuance of a warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) d. Failure to question the legality of the arrest before arraignment is deemed a waiver of such defense. (People v. Deang, et al., G.R. No. 128045, prom. August 24, 2000)

BAI L
38. When is bail a matter of right ? SUGGESTED ANSWER: All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this Rule 114 of the Rules of Court. a) before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities,or Municipal Circuit Trial Court, and b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, ROC words not in bold supplied) NOTES AND COMMENTS: ***a. The concept of discretionary bail: Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, admission to bail is discetionary. xxx Should the court grant the appliciation, the accused may be allowed provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (1st two pars., Sec. 5, Rule 114, ROC paraphrasing supplied) b. Instances when the court shall deny bail or cancel if already posted: If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) that he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification;

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(c) That he committed the offense while under probation, parole, or under conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court, on motion notice to the adverse party. (3rd and 4th pars., Sec. 5, Rule 114, ROC) c. Bail defined. Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (1st sentence, Sec. 1, Rule 114, ROC) d. Forms of bail: 1) Corporate surety; 2) Property bond; 3) Cash deposit; or 4) Recognizance. (2nd sentence, Sec. 1, Rule 114, ROC numbering and arrangement supplied) 39. When may the Court of Appeals deny bail on a case elevated for review ? SUGGESTED ANSWER: A person who appealed his conviction of homicide on a murder charge to the Court of Appeals, may be denied bail by the Court of Appeals because he could be convicted of a capital offense. (Obosa v. Court of Appeals, 266 SCRA 281) NOTES AND COMMENTS: General rule: No bail shall be allowed after a judgment of conviction has become final. (1st sentence, Sec. 24, Rule 114, ROC) Exception when bail may be granted even after final judgment: If after 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. (Sec. 24, Rule 114, ROC) 40. Accused Roger filed a petition for bail. The hearing of the petition was set for May 31, 1998, but was not heard because the Judge was then on leave. It was reset to June 8, 1998, but on said date, the Judge reset it to June 22, 1998. The hearing did not materialize, and a reset was made to July 17, 1998. In the meantime, a June 29, 1998 Order was issued granting bail based on a marginal note dated June 22, 1998, at the bottom of the bail petition which stated: "No objection:P80,000.00," signed and approved by the public prosecutor and the Judge. The Judge averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on whether to approve it or not. Did the Judge act properly ? SUGGESTED ANSWER: No. It is mandatory for a judge to require a hearing in a petition for bail even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail. The determination of whether or not the evidence of guilt is a matter of judicial discretion and not reposed upon the prosecutor. It is thus, mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, as well as the adequacy of the amount of bail. (Basco v. Judge Rapatalo, etc., A.M. No. RTJ-96-1335, prom. March 5, 1997) NOTES AND COMMENTS: Duties of the trial judge where an application for bail is filed: a. give reasonable notice to the prosecutor or require him to submit his recommendation. (Sec. 18, Rule 114, ROC paraphrasing supplied) b. 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 (Secs. 7 and 8, supra) c. Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution.

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d. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Sec. 19, supra) (Basco v. Judge Rapatalo, etc., A.M. No. RTJ-96-1335, prom. March 5, 1997) MO TION T O QU ASH ***41. What are the grounds for motion to quash ? SUGGESTED ANSWER: The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (Sec. 3, Rule 117, ROC) NOTES AND COMMENTS: At any time before entering his plea, the accused may move to quash the complaint or information. (Sec. 1, Rule 117, ROC) If the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of the court. (The minor Larranaga, etc. v. Court of Appeals, et al., G.R. No. 130644, prom. March 13, 1998) ***42. The general rule is that failure to move to quash or to allege any ground in a motion to quash is considered as a waiver of the ground not alleged. (Sec. 9, Rule 117, ROC) Are there exceptions to this general rule ? SUGGESTED ANSWER: Yes, the exceptions are the following: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (g) That the criminal action or liability has been extinguished; (i) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (Sec. 9, Rule 118, ROC) 43. May a denial of a motion to quash be the subject of a special civil action of certiorari ? If not may it be appealed ? If it could neither be the subject of a certirorari nor appeal, what then is the remedy available to the movant ? SUGGESTED ANSWER: Certiorari is not the remedy where a motion to dismiss (quash) an information is denied. (Tan, Jr. v. Sandiganbayan, G.R. 128764, prom. July 10, 1998) REASON: An order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. (Tan, Jr., supra) However, the extraordinary remedy of certiorari can be availed of if the denial of the motion constitutes grave abuse of discretion. . (Tan, Jr.supra) An order denying a motion to quash may only be reviewed in the ordinary course of law by appeal from the judgment after trial. The ordinary procedure to be followed in that event is to enter a plea, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment. (Tan, Jr., supra) ***44. Explain the concept of double jeopardy ? SUGGESTED ANSWER: When an accused 1) has been convicted or acquitted, or

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2) the case against him dismissed or otherwise terminated a) without his consent b) by a court of competent jurisdiction, c) upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and 3) after the accused had pleaded guilty to the charge, 4) the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution a) for the offense charged, or b) for any attempt to commit the same or frustration thereof, or c) for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. (1st par., Sec. 7, Rule 117, ROC numbering and arrangement supplied) NOTES AND COMMENTS: a. Requisites for double jeopardy: 1) The first jeopardy must have attached prior to the second. 2) The first jeopardy must have been validly terminated. 3) The second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. (Cudia v. Court of Appeals, et al., G.R. No. 110315, prom. January 16, 1998) b. Proof that first jeopardy has attached: 1) Court of competent jurisdiction; 2) Valid complaint or information; 3) Arraignment; 4) Valid plea; and 5) The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. (Cudia v. Court of Appeals, et al., G.R. No. 110315, prom. January 16, 1998) ***45. When are the instances where 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 ? SUGGESTED ANSWER: (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 onlu after a plead was entered in the former complaint or informationl or (c) the plead of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except when more than one offense is charged unless a single punishment for various offenses is prescribed by law, as provided in section 1 (f) of Rule 116. (last par., Sec. 7, rule 117, words not in bold supplied)

ARRAIGNMENT AND PLEA

***46. What is the concept of invalid improvident plea ? SUGGESTED ANSWER: The court must fully discharge its duty to conduct the requisite searching inquiry in such a way as would indubitably show that the accused had made not only a clear, definite and unconditional plea, but that he did so with a well-informed understanding and full realization of the consequences thereof. The bottom line of the rule is that a plea must be based on a free and informed judgment, otherwise it is an improvident plea which does not meet the requirements of the law. (People v. Estomaca, G.R. Nos. 117485-86, prom. April 22, 1996) NOTES AND COMMENTS: The focus of the courts inquiry in order to determine whether the plea is improvident: a. The voluntariness of the plea, and b. The full comprehension of the consequences of the plea. (People v. Estomaca, G.R. Nos. 117485-86, prom. April 22, 1996)

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What the court must do to avoid an invalid improvident plea: a. A mere warning to the accused that he could possibly face extreme retribution in the form of death or face a life sentence in jail is not enough. b. The trial judge should ascertain and be totally convinced that, for all intents and purposes, the plea recorded has all the earmarks of a valid and acceptable confession upon which an eventual judgment of conviction can stand. For instance, the court may require the accused to fully narrate the incident that spawned the charges against him, or by making him reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance. c. The trial court should also be convinced that the accused has not been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters by ascertaining from the accused himself the manner in which he was subsequently brought into the custody of the law, or whether he had the assistance of competent counsel during the custodial and preliminary investigations; and ascertaining from him the conditions under which he was detained and interrogated during the aforesaid investigations. d. The trial court could direct questions at the defense counsel as to whether or not counsel had conferred with, and completely explained to the accused the meaning of a plea and its consequences. e. Questions relative to the personality profile of the accused (his age, socio-economic status, educational background, etc.), which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. (People v. Estomaca, G.R. No. 117485-86, prom. April 22, 1996) No valid judgment can be rendered upon an invalid arraignment and this includes an improvident plea. The case should be remanded to the trial court for further proceedings. (People v. Estomaca, G.R. Nos. 117485-86, prom. April 22, 1996) 47. What is the rule for arraignment under Speedy Trial Act of 1998 ? SUGGESTED ANSWER: The arraignment of the accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before he justice, judge or court in which the charge is pending, whichever date last occurs. (1st par., R.A. No. 8493) NOTES AND COMMENTS: Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days from arraignment as fixed by the court. If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interpose a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove s uch defense by clear and convincing evidence. (last sentence of the 1st par., and the 2nd par., Sec. 7, R.A. No. 8493)

PRE-TRIAL
***48. Is pre-trial mandatory in criminal procedure ? SUGGESTED ANSWER: Yes. In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, , Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arreaignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme court, order a pre-trial conference to consider the following: shall after arraignment, order a pre-trial conference 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; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 1, Rule 118, ROC)

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T R IA L RIGHTS OF ACCUSED AT THE TRIAL

49. Give some examples of violation of the right of the accused to be presumed innocent. SUGGESTED ANSWER: a. It is incumbent upon the prosecution during the trial, to prove that prior to questioning, the confessant was warned of his constitutionally protected rights because the presumption of regularity of official acts does not apply during in-custody investigation. (People v. Camat, et al., G.R. No. 1122262, prom. April 2, 1996) b. The signatures of the accused on the boxes and on the plastic bags are tantamount to uncounselled extrajudicial confessions which is not sanctioned by the Bill of Rights and are, therefore inadmissible as evidence. The fact that all of the accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantee embodied in the Bill of Rights are given and extends to all persons, both aliens and citizens. (People v. Wong Chuen Ming, et al., G.r. Nos. 112801-11, prom. April 12, 1996) 50. What is the right to speedy trial guaranteed under the Speedy Trial Act of 1998 ? SUGGESTED ANSWER: If the accused is not brought to trial within the time lmit required by Section 1 (g), Rule 116 and Section 1, as extended by Section 6 of this rule, the information may be dismissed on mnotion 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 siject 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, Rule 119, ROC) NOTES AND COMMENTS: a. Period for arraignment under Sec. 1 (g), Rule 116. Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the day the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion ot quash or for a bill of particulars or other causes justifying the suspension of the arraignment shall be excluded in computing the period. b. Commencement of trial under Section 1, Rule 119. After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thrity (30) days from receipt of the pre-trial order. c. Extended time under Sec. 6, Rule 119. The time limit from arraignment to trial is as follows: First twelve-calendar month period after September 15, 1998 or until September 16, 1999 = 180 days; Second twelve-calendar month period after September 15, 1998 or until September 16, 2000 = 120 days; and Third twelve-calendar month period after September 15, 1998 or starting September 16, 2000 = 80 days. (Sec. 6, Rule 119, ROC) d. Time limit for trial: In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the co unsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earlies possible time so as to ensure speedy trial. (Sec. 6, R.A. No. 8493) In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. (last sentence, 2nd par., Sec. 2, Rule 119, ROC) 51. Give some examples where the right to counsel was violated.

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SUGGESTED ANSWER: a. Even if the confession of the accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even it had been voluntarily given. (People v. Camat, et al,. G.R. No. 112262, prom. April 2, 1996) This refers to custodial investigation only. b. Accused who was a foreign national was effectively denied his right to counsel, as he was provided with one he could not understand and communicate with concerning his defense. He was likewise denied his right to compulsory process to guarantee the availability of witness and the production of evidence on his own behalf, including the services of a qualified and competent interpreter to enable him to present his testimony. (People v. Cuison, et al., G.R. No. 109287, prom. April 18, 1996) 52. Lanie was charged by Elenita, Imelda and Rosamar with large scale illegal recruitment in the Regional Trial Court. Only Elenita testified in court as Imelda and Rosamar were then abroad. In lieu of the testimonies of the absent complainants the prosecution presented as witnesses, Imelda's mother, Lilia and Rosamar's sister, Victoria. Lanie was convicted by the RTC of large scale illegal recruitment by adopting a previous decision of the Metropolitan Trial Court where Lanie was convicted of estafa involving the same circumstances upon complaint of Imelda and Rosamar. Was the conviction proper ? SUGGESTED ANSWER: No. Lanie was deprived of her constitutional right to confront witnesses against her. A previous decision or judgment, while admissible in evidence, may only prove that an accused was previously convicted of a crime. It may not be used to prove that the accused is guilty of a crime charged in a subsequent case, in lieu of the requisite evidence proving the commission of the crime, as said previous decision is hearsay. Every conviction must be based on the findings of fact made by a trial court according to its appreciation of the evidence before it. A conviction may not be based merely on the findings of fact of another court, especially where what is presented is only its decision without the transcript of the testimony of the witnesses who testified therein and upon which the decision is based. (People v. Ortiz-Miyake, G.R. No. 115338-39, prom. September 16, 1997) NOTES AND COMMENTS: Purpose of the right to confront witnesses: a. To secure the opportunity of cross-examination; and b. To allow the judge to observe the deportment and appearance of the witness while testifying. (People v. Ortiz-Miyake, G.R. No. 115338-39, prom. September 16, 1997) 43. What are the requisites for a trial in absentia ? SUGGESTED ANSWER: a. The accused was already arraigned; b. He was properly notified of the date of trial c. He failed to appear without any justifiable reason. (Sec. 14 [2], Art. III, 1987 Constitution)

CONSOLIDATION DISCHARGE OF ACCUSED FOR USE AS STATE WITNESS

*** 54. What are the requisites for the discharge of an accused to be a state witness ? SUGGESTED ANSWER: When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statements of each proposed state witness at a hearing insupport of the discharge, the court is satisfied that: (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;

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(c) The testimony of said accused can be sibstantially 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 ben convicted of any offense involving moral turpitude. (1st par., Sec. 9, Rule 119, ROC) NOTES AND COMMENTS: a. Treatment of evidence adduced in support of discharge. Evidence adduced in support of the discharge shall automatically form part of the trial. (1st sentence, 2nd par., Sec. 17, Rule 119, ROC) b. Effect of court denial of motion for discharge. If the court denies the motion for discharge of the accused as state witness, his sowrn statement shall be inadmissible in evidence. (2nd sentence, 2nd par., Sec. 17, Rule 119, ROC) *** c. Effect of order discharging an accused to be a state witness. The order discharging an accused to a state witness 1) shall amount to an acquittal of the discharged accused and 2) shall be a bar to future prosection for the same offense, 3) unless the accused fails or refuses to testify against his co-accused in accordoance with is sworn statement constituting the basis for his discharge. (Sec. 18, Rule 119, ROC numbering and arrangement supplied)

EXCLUSION OF PUBLIC AFT ER TRI AL JUD GME NT MOTION FOR JUDGMENT ON DEMURRER TO EVIDENCE
***55. When may a court render judgment on demurrer to evidence ? SUGGESTED ANSWER: After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) upon demurrer to evidence filed by the acused filed with or without leave of court. (1st par., Sec. 123, Rule 119, ROC arrangement supplied) NOTES AND COMMENTS: a. Effects of denial of demurrer to evidence. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. then the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.,(2nd par., Sec. 23, Rule 119, ROC) The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be revieable by appeal or by certiorari before judgment. (last par., Sec. 23, Rule 119, ROC) *** b. Instance where the rules on waiver of right to present evidence suspended : The accused were convicted of murder without presenting evidence because their lawyer filed leave to file a motion for judgment on demurrer to evidence, but at the same time expressly waiving the right to present evidence. The Supreme Court set aside the conviction and remanded the case to the lower court for its proper disposition. The Court ruled that the court should have been put on guard that the counsel may not entirely comprehend the consequences of the waiver and should have exercised prudence by warning him about the prejudicial effects of the waiver. There is thus, doubt as to the voluntariness of the waiver and full comprehension of the effects of the waiver. (People v. Flores, et al., G.R. No. 106581, prom. March 3, 1997)

JUDGMENT
56. May an accused be convicted upon a duplicitous information (one which chargeds more than one crime) ? Explain briefly, SUGGESTED ANSWER: a. When two or more offenses are charged in a single complaint or information

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b. but the accused fails to object to it before trial, c. the accused may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. (Sec. 3, Rule 120, ROC numbering and arrangement supplied) 57. How should a court render judgment in a criminal case where there is a variance between the allegations in the complaint or information and the evidence ? SUGGESTED ANSWER: Where there is a a variance between the offense charged and that proved, and a. the offense charged is included in or necessarily includes the offense proved, b. the accused shall be convicted of 1) the offense proved which is included in the offense charged, or of 2) the offense charged which is included in the offense proved. (Sec. 4, rule 120, ROC numbering and arrangement supplied) 58. When does an offense include or is included in another ? SUGGESTED ANSWER: An offense charged necessarily 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. (Sec. 5, Rule 120, ROC arrangement supplied) 59. May a court reopen a judgment of conviction ? If not why not ? If so, how may the judgment be reopened ? Explain your answers briefly, SUGGESTED ANSWER: Yes, a court may reopen a judgment of conviction. a. At any time before finality of the judgment of conviction, b. the judge may, motu proprio, or upon motion, c. with hearing in either case, d. reopen the proceedings to avoid a miscarriage of justice. The proceeding shall be terminated within thirty (30) days from the order granting it. (Sec. 24, Rule 119, ROC numbering and arrangement supplied) NOTES AND COMMENTS: Do not confuse reopening of a judgment of conviction with modification of a judgment of conviction. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. (1st sentence, Sec. 7, Rule 120, ROC)

NEW TRIAL OR RECONSIDERATION

60. May the convicted accused file a motion for new trial ? If so upon what grounds ? SUGGESTED ANSWER: Yes. At any time before a judgment of conviction becomes final, the court may, on motion of the accused, or on its own instance, but with the consent of the accusd, grant a new trial or reconsideration. (Sec. 1, Rule 121, ROC) The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been comitted during the trial; (b) That 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, Rule 121, ROC) NOTES AND COMMENTS: The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. (Sec. 3, Rule 121, ROC) 61. Discuss briefly but comprehensively the effects of granting a new trial or reconsideration. SUGGESTED ANSWER: The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of erros of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set

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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. (Sec. 6, Rule 121, ROC)

A P P E A L
62. What is the nature of the right to appeal ? SUGGESTED ANSWER: Although the right to appeal is a statutory and not a natural right, it is an essential part of the judicial system and courts should proceed with caution so as not to deprive a party of this prerogative, but instead afford every party-litigant the amplest opportunity for the proper and just disposition of his cause free from the consraints of technicalities. (Moslares v. Third Division, Court of Appeals, et al., G.R. No. 129744, prom. June 26, 1998) 63. An accused escaped from detention, tried in absentia, was deemed to have waived his right to appeal (Mapalao, 197 SCRA 79) while another who was absent during the promulgation was considered as not having lost his right to appeal. (Moslares, prom. June 26, 1998). Distinguish between the two. SUGGESED ANSWER: In Mapalao, the accused escaped from detention and trial in absentia continued against him. He remained at large even at the time of the promulgation of judgment, and thus, was to have waived his right to appeal. In Moslares, the accused was not a fugitive from justice. He has been seeking redress under the law as he has filed various pleadings and motions with the courts. Therefore, he cannot be considered as one who has lost his standing in court and thus, cannot be deprived of his right to seek judicial relief. (Moslares v. Third Diivisions, Court of Appeals, et al., G.R. No. 129744, prom. June 26, 1998) NOTES AND COMMENTS: Mere absence of the accused, despite due notice to him and his bondsman or counsel, during the promulgation of the sentence is not considered a waiver of right to appeal. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of hjudgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. he shall stae the reasons for his abosence at the scheduled promulgation and if he proves that his absence was for a judtifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (last par., Sec. 6, Rule 120, ROC) The Supreme Court must still review the death penalty despite the convicts escape. Reason: Life is too valuable to be given away just because the convict escaped. (People v. Espargas, 260 SCRA 539) 64. What is the effect of appeal by several accused ? SUGGESTED ANSWER: (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 order appealed from shall be stayed as to the appealing party. (Sec. 11, Rule 122, ROC)

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EVIDENCE
EVI DEN CE IN G EN ER AL
1. What are the facts that do not need introduction of evidence ? SUGGESTED ANSWER: a. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129, ROC) b. Judicial admissions. (Sec. 4, Rule 129, ROC) c. Facts which may be presumed from proven facts. JUDICIAL NOTICE ***2. Distinguish mandatory judicial notice from discretionary judicial notice. SUGGESTED ANSWER: a. For mandatory judicial notice the court is compelled to take judicial notice because of the use of the word "shall" in Sec. 1, Rule 129, ROC WHILE for discretionary judicial notice the court is not compelled because of the use of the word "may" in Sec. 2, Rule 129, ROC. b. Mandatory judicial notice takes place at the court's own initiative WHILE discretionary judicial notice may take place at the court's initiative, or on request of a party. c. Discretionary judicial notice requires a hearing and presentation of evidence WHILE mandatory judicial notice does not require hearing and presentation of evidence. 3. Is there judicial notice of foreign laws ? Explain. SUGGESTED ANSWER: In general, courts may not take judicial notice of foreign laws, EXCEPT in a few instances where, in the exercise of sound discretion, they may take judicial notice of such foreign laws of which they are evidently familiar. (Delgado v. Republic, L-2546, January 28, 1950; Pardo v. Republic, 85 Phil. 323) NOTES AND COMMENTS: a. When foreign laws may be the subject of judicial notice. a. When the local court is evidently familiar with the foreign law. b. When the foreign law refers to the law of nations. (Sec. 1, Rule 129, ROC) c. When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treartise. (Sec. 46, Rule 130, Ibid.) d. When the foreign statute is acepted by the Philippine governemnt. (Republic v. Guanzon, 61 SCRA 360) e. When a foreign judgmen containing foreign law is recognized for enforcement. (Sec. 48, Rule 39, ROC) f. If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308) ***4. Is evidence obtained from illegal search and seizure admissible ? Explain. SUGGESTED ANSWER: Any evidence in violation fo Section 2, Article III, shall be inadmissible for any purpose in any proceeding. [Sec. 3 (2), Article III, 1987 Constitution) NOTES AND COMMENTS: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, abnd no search warrant or warant of arrest shall issue except upon probable cause to be determined 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 he pesons or things to be seized. (Sec. 2, Article III, 1987 Constitution) ***5. Explain the right against self-incrimination. SUGGESTED ANSWER: No person shall be compelled to be a witness against himself. (Sec. 17, Article III, 1987 Constitution) This right is recognized under he Rules on Evidence, which provides that, it is the right of a witness not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. [Sec. 3 (4), Rule 132, ROC)

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NOTES AND COMMENTS: The human body could be used as evidence without violating the right. Mechanical acts without the use of intelligence do not fall within the scope of the protection. Some of the acts which are not covered by the right of self-incrimination are the following: a. Fingerprinting, photographing nd paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145_) b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v. Summers, 41 Phil. 62) c. Undergoing ultra-violet rays examination to determine presence of flourescent powder on the hands. (People v. Tranca, 35 SCRA 455) d. Subpoena directing government officials to produce official documents or public records in their custody. e. Fitting the accused foot over a foot print, putting on a pair of trousers, etc.

OB JEC T E VID EN CE
6. Are photographs admissible as evidence ? SUGGESTED ANSWER: Photographs may be admissible upon proof of their exactness and accuracy by the photographer himself who can testify of his personal knowledge of the correctness of the representation. (Tan It v. Sun Insurance Office, 51 Phil. 212) NOTES AND COMMENTS: a. Photographs. The photographer is not the only witness who can identify the pictures. The faithful rpresentation of the photiograph may be proved prima facie by the testimony of those who were present at the time it was taken, or by any other competent witness who can testify as to its exactness and accuracy. Once proved, the court may admit it subject to impeachment as to its accuracy. The value of a photograph lies in its being a correcrt representation or reproduction of the original, and its admissibility is determined by its accuracy in protraying the scene at the time the picture was taken. (Sison v. People, 250 SCRA 58, 75-76) Photocopies or xerox copies of signed documents are not duplicate originals because thy are not signed. (Mahilum v. Court of Appeals, 17 SCRA 482) b. Treatment of computer printouts. If the data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (Evidence Code of California, Added by Stats. 1977, Sec. 1) In a labor case, IBM Philippines, Inc., et al., v. NLRC, et al., G.R. No. 117221, prom. April 13, 1999, the Supreme Court held that computer printouts which were not signed because they are unsigned. The Court went on further to say that its decisions, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. Not one of the 18 print-out copies submitted by IBM was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not haved been tampered with before the same were printed out.

DO CUME NT AR Y EVI DE NCE BEST EVIDENCE RULE

***7. What is the best evidence rule and how is it applied to documents ? SUGGESTED ANSWER: If, possible, the best evidence which the nature of the case is susceptible shall always be required, if not available, then the best evidence that can be had shall be allowed. (Kneedler v. Paterno, 85 Phil. 183; 20 Am. Jur. 364) When the subject of inquiry is the contents of a document no evidence shall be admissible other than the original itself. (Sec. 3, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS:

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a. Reason for rule: The reason for the best evidence rule is to prevent fraud. (AngloAmerican, etc., v. Cannon, 31 Fed. 314). The best evidence rule is a misnomer because it merely requires the best evidence that is available, and if not available, secondary evidence shall be allowed. b. Application of best evidence rule: The best evidence rule applies only to contents of a writing, when those contents are the facts in issue, and not to its execution which may be proved by parol testimony or extrinsic papers. (Hernaez v. Mcgarth, 90 Phil. 565) c. Documents defined. Documents as evidence consist of writings 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, ROC arrangement and numbering supplied) d. The different rules on admissibility of documentary evidence are the: 1) Best evidence rule; 2) Rules for admission of secondary evidence; 3) Parol evidence rule; and 4) Rules on interpretation of documents. ***8. What are the exceptions to the best evidence rule or instances where the original need not be presented or instances where secondary evidence is admissible ? SUGGESTED ANSWER: a. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; b. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; c. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and he fact sought to be established from them is only the general results of the whole; and d. When the original is a public record in the custody of a public officer or is recorded in a public office. (Sec. 3, Rule 130, ROC rearrangement and numbering supplied) NOTES AND COMMENTS: ***a. Procedure for order of proof using secondary evidence: 1) Proof of execution; 2) Proof of loss or unavailability; 2) Proof of contents. (Wigmore, Sec. 1189) ***b. Procedure for proving contents of writing where original document is not available or how secondary evidence is presented where original document is not available. 1) When the original document a) has been lost or b) destroyed, or c) cannot be produced in court, 2) the offeror, a) upon proof (1) of its execution or existence (2) and the cause of its unavailability (3) without bad faith on its part, b) may prove its contents (1) by a copy, or (2) by recital of its contents in some authentic document, or (3) by the testimony of witnesses (4) in the order stated. (Sec. 5, Rule 130, ROC arrangement and numbering supplied) ***c. Procedure for proving contents of writing where original documents is in the adverse partys possession or control or how secondary evidence is presented where original is in the custody or control of the adverse party. 1) If the document is 2) in the custody or under the control 3) of the adverse party, a) he must have reasonable notice b) to produce it.

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4) If after such notice and a) after satisfactory proof of its existence, b) he fails to produce the document, 5) secondary evidence may be presented 6) as in the case of its loss. (Sec. 6, Rule 130, ROC rearragement and numbering supplied) *** d. Procedure for proving the contents of original in the custody of a public officer: 1) When the original of a document 2) is in the custody of a public officer or 3) is recorded in a public office 4) its contents may be proved a) by a certified copy b) issued by the public officer c) in custody thereof. (Sec. 7, Rule 130, ROC rearrangement and numbering supplied)

PAROL EVIDENCE RULE

***9. What is meant by parol evidence and what is the rule regarding this concept ? SUGGESTED ANSWER: Parol evidence is oral or verbal testimony of a witness. It is also known as extrinsic evidence or evidence aliunde. When the terms of an agreement have been reduced to writing, it is 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 the written agreement. (1st par., Sec. 9, Rule 130, ROC rearrangement and numbering supplied) NOTES AND COMMENTS: a. Nature of parol evidence rule: It is not a rule of evidence but of substantive law. It is part of the law of contracts, the law of negotiable instruments, and the law of wills. It is founded upon the substantive rights of the parties. It was made part of the rules of evidence in order that it may be considered in all its phases in one place. (70 A.L.R. Anno. 752; Tracy's Handbook, 62 Ed., p. 97; 20 Am. Jur. 963) b. Reasons for the parol evidence rule: 1) When the parties have reduced their agreement in writing, 2) it is presumed that they have made the writing 3) the only repository and memorial of the truth, and 4) whatever is not found in the writing must be understood to have been waived or abandoned. (Van Sychel v. Dalrymple, 32 N. J., EQ. 233) c. Best evidence rule distinguished from parol evidence rule: 1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC); 2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify, qualify, or contradict the terms of a complete written agreement, which is not allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC) Only the parties and their successors in interest, and not strangers may invoke the protection of the parol evidence rule. (Sec. 9, Rule 130, ROC) ***10. What are the exceptions to the parol evidence rule or when are the instances when testimonial evidence may be used to prove the terms of a written agreement ? SUGGESTED ANSWER:

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A party may present evidence to modify, explain or add to the terms of the written agreement if he puts into issue in his pleading: a. An intrinsic ambiguity, mistake or imperfection in the written agreement. b. The failure of the written agreement to express the true intent and agreement of the parties thereto. c. The validity of the written agreement. d. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. (Sec. 1, Rule 130, ROC rearrangement and numbering supplied) ***11. What is the coverage of the parol evidence rule and what are the exceptions to the parol evidence rule ? SUGGESTED ANSWER: a. Covered. Only prior and contemporaneous agreements which are deemed to have been merged in the writing conformably to the "integration of the agreement rule." (Woodhouse v. Halili, 93 Phil. 526) b. Not covered. 1) Subsequent agreements, notwithstanding that such agreements may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing. 2) Collateral agreements which although oral and contemporaneous with the writing are separate and distinct agreements. (PNB v. Seeto, 91 Phil. 756) NOTES AND COMMENTS: a. Contemporaneous agreement. A contemporaneous agreement is one entered into at the same time as the agreement which has been redued to writing. b. Tests to determine whether a contemporaneous oral agreement is separate and distinct from the written agreement and therefore provable by parol evidence: 1) The first test is the subject-matter of the two agreements. If the subject-matter of the written agreement is different from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, provable by parol evidence. 2) If the two agreements refer to the same subject-matter, the test is to determine whether or not the contemporaneous oral agreement is separable, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol evidence. (Lese v. Lamprecht, 196 N.Y. 32) c. Example of agreement which CANNOT be proven by parol evidence: Express trusts concerning real property cannot be proven by parol evidence because title and possession cannot be defeated by oral evidence which can easily be fabricated and contradicted. (Sinaon, et al., v. Sorongon, et al., 136 SCRA 410) d. Examples of collateral agreements which CAN be proved by parol evidence: 1) An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. (Laureano v. Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61) 2) Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse v. Halili, 93 Phil. 526; Bough v. Cantiveros, 40 Phil. 209) 3) Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (Robles v. Lizarraga Hnos., 50 Phil. 387) 4) A condition precedent not stipulated in writing is provable by oral evidence. REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply. 5) Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral agreement separate and distinct from the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB v. Seeto, 91 Phil. 756)

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6) Any prior or contemporaneous conversaion in connection with a note or its indorsement may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How. [U.S.] 278) 7) An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; 9 Wigmore 148) h. The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (Tan Machan v. De la Trinidad, 3 Phil. 684)

INTERPRETATION OF DOCUMENTS AUTHENTICATION AND PROOF OF DOCUMENTS

12. How are alterations in documents explained ? SUGGESTED ANSWER: The party producing a document as genuine whuich has ben 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 the alteratuion was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or I nnocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the documen shall not be admissible in evidence. (Sec. 31, Rule 132, ROC) 13. As a general rule there is need to prove the authemticity of private documents. Are there exceptions to this general rule ? SUGGESTED ANSWER: Yes. There may be no need to prove the a uthenticity of private documents: a. When the document is ancient. (Sec. 21, Rule 132, ROC) b. When the execution and enuineness of the document is admitted by the adverse party. (Tria v. Cruz, 14 Phil. 551); and c. When the enuineness and due execution of the document is immaterial. (Hicks v. Coleman, 25 Cal., 122) NOTES AND COMMENTS: a. The ancient document rule: Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumsmtances of suspicion, no other evidence of its authenticity need be given. (Sec. 21, Rule 132, ROC) b. How genuineness of handwriting proved: The handwriting of a person may be proved by any witness who believes it to be the handwriting of s uch person because he has seen the person write, or has seen handwriting purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness in court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuinbe to the satisfaction of the judge. (Sec. 22, Rule 132, ROC) c. Not much weight is given to handwriting experts. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one. (Punzalan v. Commission on Elections, et al., G.R. No. 126669; Meneses v. Commission on Elections, et al., G.R. No. 127900; Punzalan v. Commission on Elections et al., G.R. No. 12880; and Punzalan v. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Lorenzo v. Diaz, 53 O.G. 4110-4111, cited in Francisco on Evidence, Vol. VII, Part I, 1997 Edition, p. 674) Questions involving the mere similarity or dissimilarity of handwritings could be determined by the court itself as authorized under Sec. 22, Rule 132 of the Rules of Court by making a comparison of the disputed handwriting "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." (Punzalan v. Commission on Elections, supra)

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EVI DEN CE TO B E PR ESE NTE D M US T BE AD MISSIBL E

***14. When is evidence admissible ? What is meant by relevancy and are there instances when evidence that is not relevant is admissible ? Explain. SUGGESTED ANSWER: Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (Sec. 3, Rule 128, ROC arrangement and numbering supplied) Relevant evidence is that evidence that has such a relation to the fact in issue as to induce belief in its existence or non-existence. (1st sentence, Sec. 4, Rule 128, ROC arrangement and numbering supplied) Only relevant evidence is admissible and evidence on collateral matter is not allowed. However, it may be allowed when it tends in any reasonable degree to establish the probability or improbability of the facts in issue. (2nd sentence, Sec. 4, Rule 128, ROC arrangement and numbering supplied) NOTES AND COMMENTS: To determine whether evidence is admissible look for the purpose. The reason behind the above statement is that evidence may be admissible for one purpose and not for another purpose. ILLUSTRATION: While Leon was sitting in front of his house, he saw Miguel running and heard him shouting, "Juan stabbed Pedro." If Leon is presented as a witness, during the trial of Juan for having stabbed Pedro, and his testimony is offered to prove that Juan stabbed Pedro, his (Leon's) testimony would not be admissible because it is excluded by the rules for being hearsay. (Sec. 3, Rule 128 in relation to Sec. 36, Rule 130, both of the ROC) Leon did not have personal knowledge of the fact that Juan stabbed Pedro. His knowledge that Juan stabbed Pedro was not derived from his own perception but from that of Miguel. On the other hand, if Leon's testimony is offered to prove that he heard that Miguel shouted, "Juan stabbed Pedro," then this would be admissible. It could not be excluded under the hearsay rule because his testimony is derived from his own perception of what Miguel said. Leon's testimony is likewise admissible because it is relevant under the concept of independent relevant statement, a statement that tends in a reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128, ROC) His testimony would tend in a reasonable degree to establish the probability that Juan stabbed Pedro.

QU ALIFICA TIO N OF WIT NE SSES

***15. Who are qualified to be witnesses or who may be witnesses ? SUGGESTED ANSWER: All persons who can perceive, and perceiving, could make known their perception to others, may be witnesses. (1st par., Sec. 30, Rule 130, ROC), provided they are not disqualified under the Rules of Court. NOTES AND COMMENTS: The following are disqualified to be witnesses:Those who are disqualified by reason of: a. Mental incapacity or immaturity (Sec. 21, Rule 130, ROC); b. Marriage (Sec. 22, Ibid); c. Death or insanity of adverse party (Sec. 23, Ibid.) d. Privileged communication (Sec. 24, Ibid.) 1) Marital privileged communication rule (Sec. 24 [a], Ibid.); 2) Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); 3) Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.); 4) Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); and 5) Public officer privileged communication rule (Sec. 24 [e], Ibid.). e. Parental and filial testimonial privilege rule (Sec. 25, Rule 130, ROC) Conviction of a crime does not disqualify a person from testifying but may disqualify him from being discharged as a state witness. (Sec. 9 [e], Rule 119, ROC) ***16. What is the marital disqualification rule ? Distinguish the marital disqualification rule from the marital privileged communication rule.

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SUGGESTED ANSWER: During their marriage, neither the husband nor 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 committed against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130, ROC) The distinctions between the marital disqualification rule and the marital privileged communications rule are the following: a. The marital disqualification rule applies to any fact WHILE the marital privileged communications rule refers only to confidential communications made during the marriage. b. The marital disqualification rule is claimable only during the marriage WHILE the marital privileged communications rule is claimable during or after the marriage. NOTES AND COMMENTS: ***a. Requisites for invoking the marital disqualification rule. 1) The spouses are legally married; 2) The marriage is subsisting at the time of the testimony; 3) The spouse is being made to testify for or against the other; 4) The spouse who is testifying was not given the consent to testify by the other spouse; 5) The case is not a civil case filed by one spouse against the other or a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130, ROC arrangement, rephrasing and numbering supplied) b. Do not confuse the marital disqualification rule under Sec. 22, Rule 130, ROC with the marital privileged communication rule under Sec. 24 [a], Rule 130, ROC. c. The rationale behind the marital disqualification rule is to preserve the marriage relation as one of full confidence, affection and concord. (U.S. v. Concepcion, 31 Phil. 182) d. The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98) against or for whom the testimony is being proferred. It may be waived 1) By a failure to interpose timely objection, or 2) By calling the other spouse as witness (Ibid., People v. Francisco, 78 Phil. 694) The privilege could be invoked even if the spouse is testifying in favor of the spouseparty because damaging testimony may be elicited during the cross-examination. ***17. What is the marital privileged communication rule ? SUGGESTED ANSWER: a. The husband or the wife, b. during or after the marriage, c. cannot be examined d. without the consent of the other e. as to any communication 1) received in confidence 2) by one from the other 3) during the marriage f. except 1) in a civil case by one against the other, or 2) in a criminal case committed by one a) against the other or b) the latter's direct descendants or descendants. (Sec. 24[a]. Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. The requisites for the marital privileged communication rule are the following: 1) The parties are or were legally married. 2) The communication, oral or written, was made during the marriage; 3) The communication was received in confidence; 4) The examination is done during the marriage. 5) The consent of the other spouse was not given. 6) The case is not a civil case filed by one against the other or a criminal case for a crime committed by one against the other or the latter's direct ascendants or descendants. b. The rational behind the marital privileged communication rule is to preserve the peace of families and maintain the sacred institution of marriage.

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c. Applications of the marital privileged communciation rule: 1) Every communication between spouses is presumed to be confidential. (Sexton v. Sexton, 129 Ia. 487; Wigmore, Sec. 2336) 2) Communications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224) 3) Communications overheard by third persons remain confidential as between the spouses, but the third person who overheard may be called upon to testify. (People v. Carlos, 47 Phil. 626) 4) Communications coming into the hands of third persons, whether legally or illegally, remain confidential as between the spouses, but the third person may be called upon to testify. (People, and Hammons, supra) But if the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. (Ibid.) 5) Communications intended for transmission to third persons are not confidential. (U.S. v. Antipolo, 37 Phil. 726) NOTE: The above rules may apply by analogy to other privileged communications. d. Waiver of the marital privileged communication rule: The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140 N.Y. 484) 18. What is meant by the survivors disqualification rule or the dead mans statute ? Explain. SUGGESTED ANSWER: a. Parties or assignors of parties to a case, or b. persons on whose behalf a case is prosecuted, c. against an executor or administrator or other representative d. of a deceased person, or against a person of unsound mind, e. cannot testify as to any matter of fact f. occurring before the death of such person or g. before such person became of unsound mind. Sec. 23, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Rationale, object and purpose of Dead Mans Statute. 1) To discourage false testimony or perjury on the part of the survivor; and 2) To protect the deceased against false and unjust claims. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) ***The object and purpose of the rule is to guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party, and further to put the two parties to a suit upon terms of equality in regard o the opportunity to giving testimony. If one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. (Tan, et al,. v. Court of Appeals, et al., G.R. No. 125861, prom. September 9, 1998) ***b. Exceptions to the survivors disqualification rule: 1) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted may testify. (Francia v. Hipolito, 93 Phil. 968) 2) When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. (Lichauco v. Atlantic Gulf, et c., 84 Phil. 330) 3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. (Go Chi Gun v. Co Cho, 96 Phil. 622) 4) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff. (Tongco v. Vianzon, 50 Phil. 698) 5) When the defendant or defendants, though heirs of the deceased, are sued in their personal and individual capacities, the plaintiff may testify against them. (Go Chi Gun v. Co Cho, 96 Phil. 622)

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6) When the survivor's testimony refers to a negative fact. (Mendezona v. vda. de Goitia, 54 Phil. 557) 7) When the survivor's testimony is favorable to the deceased. (Icard v. Marasigan, 71 Phil. 419) 8) The adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined o those transactions or communications which were had with the agent. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) c. How protection of the dead mans statute is waived: 1) By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes, 12 Phil. 1) 2) By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698) 3) By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493) 4) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during the deceased's lifetime. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) 19. Explain what is meant by the parental and filial testimonial privilege rule. SUGGESTED ANSWER No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (Sec. 25, Rule 130, ROC) NOTES AND COMMENTS: a. Who may not be compelled to testify against certain parties under the parental and filial testimonial privilege rule: 1) Person against his parents.. 2) Person against his other direct ascendants like grandparents, great grandparents, great great grandparents. 3) Person against his children. 4) Person against his other direct descendants like grandchildren, great great grandchildren. b. Who are not covered and may be compelled to testify: 1) Relatives by affinity. 2) Brothers and sisters. 3) Aunts, uncles, nephews, nieces. 4) Cousins of whatever degree. 5) Other collateral relatives. Parental and filial testimony dies not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. c. Rationale behind parental and filial testimonial privilege rule: To preserve harmonious relations between parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. The author believes that the adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege. 20. What is meant by disqualification by reason of the privileged communication rule ? SUGGESTED ANSWER: Under this rule, a person is disqualified to testify as to matters learned in confidence (Sec. 24, Rule 130, ROC). It should be noted that the person (other than a spouse under Sec. 24[a], Rule 130) is not otherwise prohibited to testify. He could testify but not on the matters learned in confidence. There are five kinds of privileged communications that could not be the subject of testimony: a. Marital privileged communication rule (Sec. 24 [a], Ibid.); b. Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); c. Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.);

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d. Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); e. Public officer privileged communication rule (Sec. 24 [e], Ibid.). 21. What is the physician and pa tient privileged commmunication rule ? SUGGESTED ANSWER: a. A person authorized to practice medicine, surgery or obstetrics b. cannot in a civil case, c. without the consent of the patient, d. be examined as to 1) any advice or treatment given by him or 2) any information a) which he may have acquired in attending such patient in a professional capacity, b) which information was necessary to enable him to act in that capacity, and c) which would blacken the reputation of the patient. (Sec. 24 [c], Rule 130, ROC arrangement and numbering supplied) The physician may be compelled to testify in a criminal case. NOTES AND COMMENTS: a. Rationale behind the privilege: The reason is to facilitate and make safe, full and confidential disclosure by a patient to the physician of all symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand. (Will of Bruendl, 102 Wis. 47) b. Waiver of the privilege: This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92)

ADMISSIONS AND CONFESSIONS

***22. What is self-serving evidence ? Is it admissible in evidence ? Explain. SUGGESTED ANSWER: An admission favorable to the party making it. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) NOTES AND COMMENTS: a. Self-serving or favorable admissions made out of court not admissible: REASONS: 1) A man may be safely believed if he declares against his own interest, but not if he advocates his interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) 2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for cross-examination by the adverse party. (National Development Co., v. Workmen's Compensation Commission, 19 SCRA 865) b. When self-serving or favorable admissions are admissible: 1) If made in open court 2) giving full opportunity to the adverse party 3) to exercise his right of cross-examination. 23. State the rule on admission by silence. SUGGESTED ANSWER: a. An act or declaration made 1) in the presence and 2) within the hearing or 3) observation b. of a party who does or says nothing c. when the act or declaration 1) is such as naturally to call for action or comment if not true, and 2) when proper and possible for him to do so, d. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering supplied)

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NOTES AND COMMENTS: a. Requisites for application of rule on admission by silence: Before the silence of a party can be taken as an admission of what is said, it must appear that: 1) he heard and understood the statement; 2) he was at liberty to interpose a denial; 3) the statement was in respect to some matter affecting his rights, or in which he was then interested, and calling, naturally, for an answer; 4) the facts were within his knowledge; and 5) the fact admitted or the inference to be drawn from his silence would be material to the issue. (People v. Paragasa, 84 SCRA 113) b. Rationale behind rule on admission by silence: The reason is the recognized rule that if a man remains silent when he ought to speak, he will be debarred from speaking later. Qui tacet consitere videtur or silence means consent. (Gabriel v. Baens, 56 Phil. 314) c. Exceptions to the rule on admission by silence or instances where there is no admission by silence: 1) Where no good reason exists for the party to comment on the act or declaration (Veil v. Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the party who remained silent. (80 A.L.R., Anno., 1272) 2) When the party had no opportunity to comment on the act or declaration. (People v. Ranario, 49 Phil. 220) 3) Where the act or declaration was made in the course of an official investigation. (People v. Tia Fong, 98 Phil. 609) 4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505) ***24. Distinguish extrajudicial confessions from admissions. SUGGESTED ANSWER: A confession, as distinguished from admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. The term, admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365) ***25. When is an offer of compromise not admissible in evidence ? SUGGESTED ANSWER: In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. (1st par., Sec. 27, Rule 130, ROC) NOTES AND COMMENTS: a. An offer to pay of 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. (last par., Sec. 27, Rule 130, ROC) b. Rationale for non-admissibility of offer to compromise in civil cases: To encourage the parties to settle their suits amicably resulting to decongestion of the courts' clogged dockets. c. Compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (Article 2028, Civil Code of the Philippines) 26. When is an offer to compromise admissible in evidence ? Are there any exceptions ? Explain. SUGGESTED ANSWER: a. In criminal cases, except

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1) those involving quasi-offenses (criminal negligence) or 2) those allowed by law to be compromised, b. an offer of compromise by the accused c. may be received in evidence as an implied admission of guilt. (2nd par., Sec. 27, Rule 130, ROC arrangement and numbering supplied) ***27. What is meant by res inter alios acta alteri nocere non debet or res inter alios acta ? SUGGESTED ANSWER: Statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza v. Arcangel, 21 SCRA 4) The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (Sec. 28, Rule 130, ROC) NOTES AND COMMENTS: a. Rational for res inter alios acta: This evidentiary rule guards against the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. (Cruz, et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998 citing Francisco) b. Exceptions to res inter alios acta: 1) When there is a rational similarity or resemblance between the conditions giving rise to he fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998) 2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake. (Cruz, supra) 3) The rights of a party may be prejudiced by the act, declaration or omission of another when between the party making the admission and against whom it is offered there exists a relation of: a) partnership; b) agency; c) joint interest; d) conspiracy; or e) privity. c. Rule on admission by co-partner or agent: 1) The act or declaration of a partner or 2) agent within the scope of his authority and during the existence of the partnership or agency, 3) may be given in evidence against such party 4) after the partnership or agency a) is shown by evidence b) other than such act or declaration. 5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and numbering supplied) d. Rule on admission by conspirator: 1) The act or declaration of a conspirator 2) relating to the conspiracy and during its existence, 3) may be given in evidence against the co-conspirator 4) after the conspiracy a) is shown by evidence b) other than such act or declaration. (Sec. 30, Rule 130, ROC arrangement and numbering supplied) e. Requisites for application of the admission by conspirator: 1) The conspiracy must be established by independent evidence. 2) The statement refers to the purpose or object of the conspiracy. 3) The statement must be made during the existence of the conspiracy. (People v. Dagundong, L-10398, June 30, 1960) This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a witness in the trial. (People v. Atencio, L-222518, Jan. 17, 1968)

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***28. What is the probative value of a confession ? SUGGESTED ANSWER: It depends on whether the confession is judicial or extrajudicial. a. A judicial confession, like a plea of guilty, is in fact evidence of guilt of the most trustworthy kind, is conclusive upon the court and is sufficient to sustain a judgment of conviction. (People v. Sta. Rosa, 88 Phil. 487) b. 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, ROC) NOTES AND COMMENTS: a. Confession, defined. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Sec. 33, Rule 130, ROC ) A confession made by an accused may be given in evidence against him. (Sec. 33, Rule 130, ROC paraphrasing supplied) b. Confession is evidence of high order: 1) There is no evidence of a higher quality than a confession, It represents the outward manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the same is admissible as an evidence of guilt of a high quality. (People v. Garcia, 54 Phil. 329, 358) 2) If a confession be true and voluntary, the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption, a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (People v. Zea, et al., 130 SCRA 87, 88) c. Probative value of recantations: They are looked upon with disfavor as recantations are usually secured through intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138) d. General rule on admissibility of confession: A confession is admissible only against the accused who made it and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533) e. Exceptions: when a confession is admissible against co-accused: 1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are repeated in open court (People v. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a chance to cross-examine. 2) When the offer in evidence of an extrajudicial confession against a co-accused is not objected to. (People v. Atienza, 86 Phil. 576) 3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts and declarations adopted he confession as his own. (People v. Atienza, supra; People v. Orencia, 47 Phil. 970) 4) Where several accused, without collusion, made extrajduicial confessions which are identical in essential details and corroborated by other evidence, such confession is admissible against the others. (People v. Pelonia, L-14624, July 24, 1960) 5) The confession of a conspirator is admissible against his co-conspirator provided it was made during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v. Ramirez, L-5875, May 15, 1953) 6) When the recitals in the extrajudicial confession of an accused is corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People v. Villanueva, L-12687, July 31, 1962) f. Extrajudicial confessions identical in material respects (also known as interlocking confessions) admissible against all declarants: 1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the other are admissible as circumstantial evidence against co-accused implicated therein to show the probability of the latter's actual participation in the commission of the crime. (People v. Encipido, et al., 146 SCRA 492) 2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is clear from other facts and circumstances presented that

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persons other than the declarants themselves participated in the commission of the crime charged and proved. (Ibid.) They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. (Ibid.) The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him, but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People v. Salig, et al., 133 SCRA 69 citing Vera v. People, 7 SCRA 153) ***29. What is meant by corpus delicti ? Give examples. SUGGESTED ANSWER: a. It refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of two elements: 1) certain results were produced, and 2) someone is criminally responsible. (People v. Marquez, 77 Phil. 83) b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1; People v. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia, 99 Phil. 381) NOTES AND COMMENTS: a. Examples of corpus delicti: a. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially. (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44). b. In robbery or theft, the fact of loss. (People v. Niem, 75 Phil. 668) c. In arson, the fact of burning, (People v. Marquez, 77 Phil. 83; People v. Mones, 58 Phil. 46) d. In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not. (People v. Nocum, 77 Phil. 1018) Conviction for murder proper even if victims body is not produced: In all crimes against persons in which the death of the victim is an essential element of the offense, there must be satisfactory evidence of the fact of death and the identity of the victim that a crime has been committed which is what corpus delicti really means. The failure of the prosecution to produce the body of the victim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (People v. Centeno, et al., 130 SCRA 209)

PREVIOUS CONDUCT AS EVIDENCE

***30. Is previous conduct admissible in evidence ? Explain. SUGGESTED ANSWER: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same thing or a similar thing at another time. (Sec. 34, Rule130, ROC) NOTES AND COMMENTS: a. Rationale behind the prohibition: Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of irrelevant issues, and diverts the attention of the court from the issues immediately before it. (Cruz, et al., v. Court of Appeals, G.R. No. 126713, prom. July 27, 1998 citing Sec. 34, Rule 130 of the Rules of Court) b. Exception or when previous conduct admissible in evidence: 1) Evidence that one did or did not do 2) a certain thing at one time 3) may be received in evidence to prove a) a specific intent or knowledge, b) identity, plan, system, scheme, c) habit, custom or usage, and the like. (Sec. 34, Rule 130, ROC rephrasing, arrangement and numbering supplied)

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HEARSAY RULE
***31. Explain the meaning of the hearsay rule. SUGGESTED ANSWER: a. A witness can testify b. only to those facts c. which he knows of his personal knowledge; d. that is which are derived from his own perception, e. except as otherwise provided in these rules (Sec. 36, Rule 130, ROC arrangement and numbering supplied) of Court. Consequently, facts which are not derived from the perception of the witness is hearsay, and not admissible. The rule is not limited to oral testimony, it also includes writings. (20 Am. Jur. 400) NOTES AND COMMENTS: a. Examples of hearsay evidence: 1) The testimony of a witness as to what he has heard another person say about the facts in dispute. (People v. Reyes, 76 Phil. 354; Aldecoa & Co., v. WArner Barnes & Co., 30 Phil. 153) NOTE: See concept of independent relevant statement. 2) Affidavits. (Marisfosque v. Luna, L-9095, May 25, 1957; People v. Pagkaliwagan, 76 Phil. 457) 3) A letter offered in evidence to establish the facts in issue. (Pastor v. Gaspar, 2 Phil. 592; People v. Carlos, 47 Phil. 626) 4) A medical certificate to the extent of the injuries found by the doctor on the offended party's body. (De Guia v. Meralco, 40 Phil. 706) 5) A resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. (U.S. v. Tanjuatco, 1 Phil. 374) b. Theory of the hearsay rule: When a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. c. Rationale behind the non-admissibioity of hearsay evidence: 1) A witness can testify only to those facts which he knows of his own knowledge; and 2) To preserve the right of parties to cross-examine the original witness or person claiming to have knowledge of the transaction or occurrence. (People v. Pagkaliwagan, 76 Phil. 457) The right to cross-examine he adverse party's witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since he declarant is not in court. (Donnelly v. U.S., 228 U.S. 243) d. General rule: Affidavits without presenting afiant in court is mere hearsay: The constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. (People v. Santos, et al., 139 SCRA 586-587 citing People v. Lavarez, 23 SCRA 1301) e. Exceptions: when affidavits are given weight: 1) Where said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. (Top-Weld Manufacturing, Inc. v. ECED, S.A., et al., 138 SCRA 132) 2) Under the Rule on Summary Procedure for civil cases; 3) When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule 133, ROC)

EXCEPTIONS TO THE HEARSAY RULE

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32. What are the exceptions to the hearsay rule ? SUGGESTED ANSWER: There are certain instances, where by reasons of convenience and public policy, matters usually considered as hearsay are admissible in evidence. Among such exceptional instances are: a. Dying declaration (Sec. 37, Rule 130, ROC); b. Declaration against interest (Sec. 38, Ibid.) c. Act or declaration about pedigree (Sec. 39, Ibid.); d. Family reputation or tradition regarding pedigree (Sec. 40, Ibid.) e. Common reputation (Sec. 41, Ibid.); f. Part of the res gestae (Sec. 42, Ibid.); g. Entries in the course of business (Sec. 43, Ibid.); h. Entries in official records (Sec. 44, Ibid.); i. Commercial lists and the like (Sec. 45, Ibid.); j. Learned treatises (Sec. 46, Ibid.); k. Testimony or deposition at a former proceeding (Sec. 47, Ibid.) ***33. Explain and illustrate the concept of an independent relevant statement. SUGGESTED ANSWER: It is a statement intended not to establish the truth of the facts asserted in that statement, but to establish only the tenor of the statement, not the truth of the facts therein asserted. Illustration: In a libel case, if the prosecution witness testifies that he heard the accused say that the complainant was a rapist, this testimony is admissible not to prove that the complainant was really a rapist, but merely to show what the accused uttered. Independent relevant statements are hearsay in character but not legal hearsay. hence they are not considered as exceptions to the hearsay rule. ***34. Explain the concept of dying declaration as an exception to the hearsay rule. SUGGESTED ANSWER: a. The declaration of a dying person, b. made under consciousness of an impending death, c. may be received in any case wherein his death is the subject of inquiry, d. as evidence of the cause and surrounding circumstances of such death. (Sec. 37, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Rationale behind admitting dying declaration or why dying declaration is an exception to the hearsay rule: 1) Necessity, because the declarant's death makes it impossible to obtain testimony in court and, usually, in crimes against persons, the victim's testimony is the best evidence of the crime. (U.S. v. Virrey, 37 Phil. 618) 2) Trustworthiness, because it is made at the point of death, a situation so solemn and awful as creating an obligation equal to that created by a positive oath administered in a court of justice. (U.S. v. Gil, 13 Phil. 530) b. Requisites of ante-mortem statement: a. It must concern any case involved in and the circumstances surrounding the declarant's death; b. At the time of the declaration, the declarant must be conscious of impending death; c. The declarant must be competent as a witness; d. The declaration must be offered in any case wherein the death of the declarant is the subject of inquiry; and e. The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae and not as a dying declaration c. Victim need not state that he has lost all hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death. (People v. Tanaman, et al., G.R. No. 71768, July 28, 1987)

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d. Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the a declarant expires immediately thereafter. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (People v. Bautista, G.R. No. 111149, prom. September 5, 1997) Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused. REASON: Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is open to various interpretations by the witness who testifies To its existence. Thus, the evidence comes to the court couched in the witness' second hand perception and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the court without the benefit of cross-examination by the party against whom it is brought, nor of any other means of assessing the competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987) 35. What are the requisites for admissibility of declaration against interest ? Distinguish declaraltion against interest from admission. SUGGESTED ANSWER: a. The declaration is made by 1) a person deceased, or 2) unable to testify, b. against the interest of the declarant, c. if the fact asserted in the declaration 1) was at the time it was made 2) so far contrary to declarant's own interest, 3) that a reasonable man in his position a) would not have made the declaration b) unless he believed it to be true. (Sec. 38, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENT: a. Declaration against interest distinguished from admission: 1) An admission is not necessarily against the interest of the admitter WHILE the declaration must be against the declarant's own interest; 2) An admission may be received even if the admitter is alive WHILE the declarant must be dead or is unable to testify; 3) An admission may be received in evidence only against the admitter and those identified with him in legal interest WHILE the declaration may be received even against third persons. (Smith v. Moore, 142 N.C. 277) b. When declaration against interest received in evidence: 1) Against the declarant; 2) Against his successors in interest; and 3) Against third persons. (Sec. 38, Rule 130, ROC, arrangement and numbering supplied) ***36. Explain the concept of res gestae. SUGGESTED ANSWER: A matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood. 20 Am. Jur. 553) NOTES AND COMMENTS: What is admissible as part of res gestae is not the details of an occurrence, but the human assertions or statements about those details. (20 Am. Jur. 553556) Rationale behind admissibility of res gestae or why res gestae is an exception to the hearsay rule:

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1) Necessity because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand. (Mobile v. Ascraft, 48 Ala. 31) 2) Trustworthiness because these statements are made instinctively. (Wesley v. Sate, 53 Ala. 182) ***37. What are the requisites for spontaneous exclamations as part of the res gestae ? SUGGESTED ANSWER: a. The res gestae is an equivocal act. b. The equivocal act must be material to the issue. c. The statement or question must be necessary for the understanding of the equivocal act. d. The statement must accompany the equivocal act. (Tracy's Handbook, 62 Ed., p. 222) ***38. Give examples of spontaneous exclamations as part of the res gestae. SUGGESTED ANSWER: a. A conversation between two accused immediately after the commission of the crime overheard by prosecution witnesses. (People v. Reyes, 82 Phil. 563) b. A statement made by a wounded person shortly after a violent occurrence heard by another. c. The statement made by a shooting victim to persons who answered his cries for help that the accused shot him. 39. What is the nature of expert opinions ? SUGGESTED ANSWER: Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. ((Punzalan v. Commission on Elections, et al., G.R. No. 126669; Meneses v. Commission on Elections, et al., G.R. No. 127900; Punzalan v. Commission on Elections et al., G.R. No. 12880; and Punzalan v. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Francisco on Evidence, Vol. VII, Part 1, p. 662) NOTES AND COMMENTS: Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. ((Punzalan v. Commission on Elections, et al., G.R. No. 126669; Meneses v. Commission on Elections, et al., G.R. No. 127900; Punzalan v. Commission on Elections et al., G.R. No. 12880; and Punzalan v. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Bocobo v. COMELEC, 191 SCRA 576 in turn citing Penson v. Parungao, 52 Phil. 718) CHARACTER EVIDENCE PRESUMPTIONS 40. What are the requisites for adverse presumption from suppression of evidence ? SUGGESTED ANSWER: a. The suppression is wilful. (Sec. 3-e, Rule 131, ROC) continue b. The suppression is not in the exercise of a privilege. c. The evidence suppressed is not merely corroborative. d. The evidence is at the disposal only of the suppressing party. NOTES AND COMMENTS: Instances where adverse presumption from suppression of evidence does not apply: a. If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1) b. The suppression was not willful. c. The suppressed evidence is merely corroborative or cumulative.

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d. The suppression is an exercise of a privilege. (People v. Navaja, 220 SCRA 624) 41. What is burden of proof ? SUGGESTED ANSWER: a. Burden of proof is b. the duty of a party c. to present evidence d. on the facts in issue e. necessary to establish his claim or defense f. by the amount of evidence g. required by law. (Sec. 1, Rule 131, ROC, arrangement and numbering supplied. NOTES AND COMMENTS: a. Risk of non-persuasion is another term for burden of proof. The burden of proof lies upon the party who would be defeated if no evidence were given on either side. b. Burden of evidence the duty resting upon a party, by means of evidence, to create or meet a prima facie case. (McCloskey v. Koplar, 92 .A.L.R. 641) Each party must prove his affirmative allegation. Since the burden of evidence lies with the party who asserts an affirmative allegation, the plaintiff or complainant has to prove his affirmative allegations in the complaint and the defendant or respondent has to prove the affirmative allegations in his affirmative defenses and counterclaims. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) c. Duty of going forward with the evidence or burden of going forward is another term for burden of evidence. (Demeules v. Sewel Tea Co., 103 Minn. 150) Illustration of going forward with the evidence: For example after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence - as distinct from the general burden of proof- shifts to the creditor who is then under the duty of producing evidence to show non-payment. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) In short, the burden of going forward is the burden of producing evidence. 42. What is the doctrine of equipose ? SUGGESTED ANSWER: Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera v. Court of Appeals, et al., G.R. No. 115625, prom. January 23, 1998 citing Francisco, Evidence, p. 555, second edition) Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530) NOTES AND COMMENTS: a. Burden of proof distinguished from burden of evidence: Burden of proof does not shift during the course of the trial; it remains with the party upon whom the law cast it at the beginning of the trial. (Southern R. Co. v. Prescott, 240 U.S. 632) On the other hand, burden of evidence shifts or passes from side to side as the trial progresses and evidence is introduced. (Ibid.) b. The plaintiff has the burden of proof in civil cases: 1) In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on either side. The party who alleges a fact has the burden of proving it. (Pacific Banking Corporation Employees Organization, et al., v. Court of Appeals, et al., G.R. No. 109373 and The President of the Philippine Deposit Insurance Corporation, etc., v. Court of Appeals, et al., G.R. No. 112991, prom. March 27, 1998 citing TransPacific Supplies, Inc. v. Court of Appeals, 235 SCRA 494) 2) In civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case asserts affirmative allegations of an issue. (Rodriquez v. Valencia, 81 Phil. 787) REASON: He who asserts and not he who denies, must prove. (Lagasca v. De Vera, 79 Phil. 376)

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The party who asserts the affirmative would lose as to a particular issue or the entire case, if no evidence were given on either side. (Ibid., citing Sec. 1, Rule 131, ROC) c. Prosecution has burden of proof in criminal cases: In criminal cases the burden of proof as to the offense charged lies on the prosecution. A negative fact alleged by the prosecution need not be proved unless it is an essential ingredient of the offense charged. REASON: The accused has in his favor the presumption of innocence. d. Burden of proof in infringement cases: The burden of proof to substantiate a charge of infringement is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same is in due form, there is created a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patent (now the Director of the Intellectual Property Office), in granting the patent is presumed to be correct. The burden of going forward with the evidence (burden of evidence) then shifts to the defendant to overcome by competent evidence this legal presumption. (Maguan v. Court of Appeals, et al., 146 SCRA 116, 117) ORDER OF PRESENTATION OF EVIDENCE 43. State the order of presentation of evidence if trial is to be heard in order to adduce evidence. SUGGESTED ANSWER: a. The plaintiff shall adduce evidence in support of his complaint; b. The defendant shall then adduce evidence, in support of his defense, counterclaim, cross-claim and third-party complaint; c. The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; d. The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; e. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; f. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda, or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine he relative order of presentation of their evidence. (Sec. 5, Rule 30, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Scope of judges participation at trial: A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960) He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility. (People v Moreno, 83 Phil. 286) However, this power must be exercised by the court sparingly and judiciously. (People v. Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909) b. Power of court to stop further evidence: 1) The court may stop 2) the introduction of further testimony 3) upon any particular point 4) when the evidence upon it is already so full 5) that more witnesses to the same point 6) cannot be reasonably expected 7) to be additionally persuasive. But this power should be exercised with caution. (Sec. 6, Rule 133, ROC arrangement and numbering supplied)

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When the evidence already presented on one point is sufficient and the party merely seeks to present cumulative evidence which cannot produce additional persuasive effect or that he is not sure of what the other witnesses would testify, the court may in its sound discretion stop the introduction of such further evidence. (People v. Reyes, et al., 133 SCRA 51) c. Role of attorney during presentation of evidence: An attorney has a dual role to perform relative to proving the truth respecting a matter of fact. He must ensure that all evidence supporting the material allegations, whether raised in the pleadings or not are admitted by the court. His other role is to block the admission of evidence supporting his opponents' material allegations whether raised in the pleadings or not. In order to perform this dual role the attorney should ensure that the evidence he offers are admissible in accordance with the Rules of Court and those of his opponent are properly objected to for being inadmissible 44. What is the rationale for requirement of offer of evidence ? SUGGESTED ANSWER: The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. (Mr. Chief Justice Moran cited in People v. Franco, G.R. No. 118607, prom. March 4, 1997) NOTES AND COMMENTS: Evidence not formally offered not considered on appeal. Evidence is not formally offered before the trial court cannot be considered on appeal. To consider them at this stage will deny the other parties their right to rebut them. (Servicewide Specialists, Inc. v. Court of Appeals, et al., G.R. No. 117728, prom. June 26, 1996) ***45. What is meant by present recollection revived ? SUGGESTED ANSWER: A witness may be allowed to refresh his memory respecting a matter of at by referring to anything: a. Written or recorded by himself or under his direction; b. At the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory; c. He knew that the same was correctly written or recorded. But in such case the writing must be produced and may be inspected by the adverse party who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. (Sec. 16, Rule 132, ROC) NOTES AND COMMENTS: The concept of past recollection recorded. A witness may testify 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. (Sec. 16, Rule 132, ROC) 46. What is the effect of inadmissible evidence that has not been properly objected to ? SUGGESTED ANSWER: It is a well-settled doctrine that where the proponent offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. A protest or objection against the admission of any evidence must be made at the proper time, and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of proof, the inadmissibility of evidence is, or may be inferred. (British Airways v. Court of Appeals, et al., G.R. No. 121824, January 29, 1998 citing Abrenica v. Gonda, 34 Phil. 739) Cross-examination conducted to the inadmissble evidence may constitute waiver. (British Airways, supra) 47. How is the adverse partys witnesses impeached ? SUGGESTED ANSWER: a. By contradictory evidence. b. By evidence that his general reputation for truth, honesty, or integrity is bad. c. By evidence that he has made at other times statements inconsistent with his present testimony.

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But not by evidence of particular wrongful acts, except that it may be shown by the examination of the witnesses, or the record of the judgment that he has been convicted of an offense. (Sec. 11, Rule 132, ROC) NOTES AND COMMENTS: The concept of laying the predicate. It is the duty of the party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should been deemed impeached. (People v. Relucio, 86 SCRA 242) 48. What is the evidence required in civil cases ? SUGGESTED ANSWER: The party having the burden of proof must establish his case by a preponderance of evidence. (Section 1, Rule 133, ROC) NOTES AND COMMENTS: Preponderance of evidence is evidence which is of greater weight, or more convincing that that which is offered in opposition to it. (National Power Corporation v. Court of Appeals, et al., G.R. No. 122195, prom. July 23, 1998 citing New Testament of God v. Court of Appeals, 246 SCRA 266) 49. What are the requisites for sufficiency of circumstantial evidence ? SUGGESTED ANSWER: 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. (Sec. 4, Rule 133, ROC)

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